HomeMy WebLinkAboutContract 48506-CD2 CSC No. 48506-CD2
CONSENT TO SECOND LEASEHOLD DEED OF TRUST
FORT WORTH SPINKS AIRPORT
LEASE SITE E-20
This CONSENT TO SECOND LEASEHOLD DEED OF TRUST("Agreement")is made and entered
into by and between the CITY OF FORT WORTH ("Lessor"), a home rule municipal corporation
organized under the laws of the State of Texas; Dumont Group Properties VI, LLC ("Lessee"), a
Delaware limited Iiability corporation, and Cortland Credit Lending Corporation,in its capacity as
administrative agent for certain lenders ("Secured Party").
The following introductory provisions are true and correct and form the basis of this Consent:
A. On December 27, 2016 Lessor and Lessee entered into a Ground Lease Agreement identified as
City Secretary Contract No.48506(the"Lease")for the space known as lease site E20("Leased Premises")
at Fort Worth Meacham International Airport("Airport"),
D. Pursuant to a financing arrangement between the Lessee and Groupo Piraino,LLC,a Delaware Limited
Liability Company and Deak Companies, LLC, a Delaware Limited Liability Company (collectively the
"Initial Lender"),among other things,Lessee granted the Initial Lender(i)a lien on all personal property of Lessee
(the"Personal Property Collateral')and(ii)a lien on the Lessee's leasehold interest in the Leased Premises,pursuant
to a certain Deed of Trust,Security Agreement and Fixture Filing in favor of the Initial Lender(the"Original Deed
of Trust");
C. As required under the Lease and requested by the Initial Lender, the Lessor, Lessee, and Initial
Lender entered into CSC No.48506-CD 1EC 1,a Consent to Leasehold Deed of Trust in favor of the Initial
Lender;
D. Now,Lessee is seeking additional financing from Cortland Credit Lending Corporation,in its capacity as
administrative agent for certain lenders("Secured Parry")and as a condition to providing the requested additional
financing to the Lessee, the Secured Party required of Lessee, and Initial Lender has agreed, (i)for the Initial
Lender's Original Deed of Trust to be subordinate to a new deed of trust in favor of Secured Party,and(ii)for the
Initial Lender's lien on the Personal Property Collateral to be subordinate to the Secured Parry's lien on the Personal
Property Collateral;
E. Therefore,Lessee and the Secured Party now desire for Lessor to consent to the execution by Lessee
of a second leasehold deed of trust on the Leased Premises in favor of the Secured Party("Deed of Trust")
through this Agreement.
NOW,THEREFORE,Lessor,Lessee and the Secured Party hereby agree as follows:
1. The statements set forth in the recitals above are true and correct and form the basis upon which
Lessor,Lessee and the Secured Party have entered into this Agreement.The Lease will be a public
document on file in Lessor's City Secretary's Office and is incorporated herein by reference for all
purposes.
2. Lessor hereby consents to the execution and delivery by Lessee to the Secured Party of the Deed of
Trust,which is attached hereto as Exhibit"A.".Lessor does not adopt,ratify or approve of any of the
Consent to Second Leasehold
Deed of Trust on Lease Site 1:-20 at Spinks Airport
in favor of Cortland Credit Lending Corporation OFFICIAL RECORD
Page 1 of 8
CITY SECRETARY
FT. WORTH, TX
particular provisions of the Deed of Trust and does not grant any right,privilege or use to Lessee,
Secured Parry,or any successor in interest pursuant to the Deed of Trust that is different from or more
extensive than any right, privilege or use granted to Lessee under the Lease. Notwithstanding
anything contrary in the Deed of Trust, Lessee and the Secured Party acknowledge, understand
and agree that Lessee and the Secured Party do not have any right to convey any interests in the
Leased Premises greater than those granted specifically by the Lease.Lessee and the Secured Party
further acknowledge,understand and agree that Lessor retains the mineral interest and the right to
develop such interest. In the event of any conflict between the Deed of Trust and the Lease,the
Lease shall control in all respects as to Lessor and as to Lessee's and the Secured Party's
obligations to Lessor established by the lease and/or this Agreement In the event of any conflict
between the Deed of Trust and this Agreement,this Agreement shall control. In the event of any
conflict between this Agreement and the Lease,the Lease shall control.
3. In the event that Lessor is required by the Lease to provide any kind of written notice to Lessee
with regard to the Leased Premises,including notice of breach or default by Lessee,Lessor shall
also provide a copy of such written notice to the Secured Party.Lessor agrees that(i)the Secured
Party may perform any of the obligations or requirements imposed on Lessee by the Lease in
order to avoid a breach or default under the Lease by Lessee and (ii) Lessor will accept the
Secured Party's performance the same as if Lessee had performed such obligations or
requirements.
4. Lessor 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 of all or part of the Leased Premises unless
it first has provided the Secured Party with written notice of its intent to exercise such any such
right.The Secured Party shall have ten(10)calendar days from,the date it receives 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 Lessor's reasonable satisfaction
in order to avoid such cancellation, termination or surrender; provided, however, that if the
Secured Party, in good faith and after diligent and continuous efforts to remedy any non-
monetary default under the Lease, cannot cure such default within thirty (30) calendar days, it
shall notify Lessor in writing and Lessor and the Secured Party shall negotiate in good faith a
reasonable amount of additional time to cure such default.
5. Lessee agrees that it will not request or consent to any future modifications, amendments or
assignments of the Lease without first receiving the Secured Party's written consent thereto and
providing a copy of such written consent to Lessor. Lessee understands and agrees that any such
consent granted by Lessor without Secured Party's advance written consent shall be void and
specifically releases,holds harmless and agrees to indemnify Lessor for any damages that may arise
as a result of any such consent.
b. As long as such does not conflict with Lessor's rights under the Lease, Lessor consents to the
exercise by the Secured Party of any and all rights and remedies permitted under the Deed of
Trust (including judicial and/or non judicial foreclosure on the Leased Premises), and to the
exercise of such additional legal and equitable rights and remedies as may be available to
Secured Party, if an Event of Default occurs under the Deed of Trust. In the event that Secured
Party undertakes to enforce its rights to any Personal Property Collateral granted by the Deed
of Trust on account of default by Lessee under the Deed of Trust,Lessor will cooperate with the
Secured Party in its efforts to assemble and/or remove any personal property of Lessee on the
Premises.The Secured Party hereby agrees to repair any damages at or to the Airport,including
the Leased Premises,caused by or incident to such removal. The Lessor agrees that the Personal
Property Collateral is and shall remain personal property of the Lessee regardless of the manner
Consent to Second Leasehold
Deed of"trust on Lease Site E-20 at Spinks Airport
Ju favor of Cortland Credit Lending Corporation
Page 2 of 8
or mode of attachment of any item to the Premises and shall not be deemed to be fixtures;
provided however, that in no event shall the Personal Property Collateral include any (i)
alterations, improvements,fixtures,equipment or property owned by the Lessor,and/or(ii)real
property or real property fixtures to the Premises other than trade fixtures of the Lessee. Subject
to the terms and conditions set forth in this Agreement, the Lessor hereby subordinates its interest
in,right or claim to,and lien on,the Personal Property Collateral to the Secured Party's lien on the
Personal Property Collateral.Notwithstanding anything herein to the contrary,in no event shall any
personal property owned by the Lessor and located in the Premises be deemed part of the Personal
Property Collateral.
7. As a condition precedent to the effectiveness of this Agreement, Lessee agrees and covenants
that it will endorse all insurance policies required by the Lease to name both Lessor and the Secured
Party as additional insureds and to cover all public risks related to the leasing, use, occupancy,
maintenance, existence or location of the Leased Premises. Notwithstanding anything to the
contrary in the Deed of Trust, the Secured Party hereby agrees and covenants that any and all
proceeds payable under the terms of such insurance policies shall first be applied to cover the
replacement of all facilities and improvements on the Leased Premises and to satisfy fully the terms
and conditions of the Lease. Payment of such proceeds shall apply secondarily to secure any of
Lessee's indebtedness to the Secured Party.
8. Subject to Sections 4 and 6 of this Agreement, Lessor may take all action available to it under
the Lease, at law or in equity in order to protect its interests, including, but not limited to,
cancellation of Lessee's interest as provided by the Lease and in accordance with this Agreement.
9. The Secured Party agrees that it promptly will notify Lessor in writing when the Secured Party has
released its rights under the Deed of Trust. This Agreement will automatically terminate on the
earlier of(i)the date as of which the Secured Party releases such rights or(ii)the date upon which
the Lease expire or are terminated.
10. If the Secured Party forecloses on the Leased Premises as a result of exercising its rights under the
Deed of Trust,the Secured Party may become the owner of all of Lessee's rights under the Lease,
without Lessor's further action or consent. However, if the Lender desires to sell or otherwise
transfer its leasehold interest in the Leased Premises to a third party(either at or after foreclosure),
the Secured Party must obtain the Lessor's written consent to and approval of the purchaser. Such
consent and approval will not be unreasonably withheld, conditioned or delayed. Nothing in this
Agreement is intended to prohibit the Secured Party from assigning the liens and security interests
created by the Deed of Trust to another financial institution with Lessor's prior written consent,
which such consent will not be unreasonably withheld,conditioned,or delayed.
11. Notices to the Secured Party required pursuant to the provisions of this Agreement shall be
conclusively determined to have been delivered when (i) hand-delivered to the Secured Party, its
agents,employees,servants or representatives,or(ii)deposited in the United States Mail,certified,
return receipt requested,addressed as follows:
Cortland Credit Lending Corporation
Royal Bank Plaza,South Tower
200 Bay Street,Suite 3230
Toronto,Ontario M5J 2J2
Attention:Sean Rogister,CEO
Email:srogisterVcortlandcredit.ca
Consent to Second Leasehold
Deed of Trust on Lease Site E-20 at Spinks Airport
In favor of Cortland Credit Lending Corporation
Page 3 of 8
with a copy to:
Dentons Canada LLP
77 King Street West,Suite 400
Toronto,Ontario M5K OA1
Attention: Jim Russell
Email: iim.russell@dentons,com
12. The parties hereto understand and agree that upon expiration or termination of the Lease,all permanent
structures,improvements and fixtures on the Leased Premises,and any items permanently attached to
any such structure,fixture or improvement,will become the sole property of Lessor,free and clear of
all liens, including the Deed of Trust. Improvements of a non-permanent nature, all trade fixtures,
machinery,furnishings and other non-permanent items may specifically be removed from the Leased
Premises in accordance with the Lease.In the event that the Lease expire or are terminated,Lessee and
the Secured Party covenant and agree that nothing herein shall obligate Lessor to assume in any way
Lessee's indebtedness to the Secured Party.
13. Estoppel.
a. The document referred to above as comprising of the Lease is the only document which
constitute the Lease, and the Lease is in full force and effect and has not been modified,
changed,altered or amended in any respect.
b. The Lease is the only agreement between the Lessor and Lessee relating to the Lease at
Fort Worth Spinks Airport and, together with the minimum standards and other general
regulations that may apply to the lessee under the Lease, contain the entire agreement and
understanding of the Lessor and Lessee with respect thereto. Lessee is the current holder
of the leasehold interest in the premises under the Lease.
C. To the best knowledge of the Lessor,no monetary or non-monetary default by the Lessee
presently exists under the Lease and no state of facts exist which with the passage of time
or giving of notice,or both,would constitute a default by the Lessee under the Lease.
d. The Lessor has not taken, and does not currently anticipate taking any action to, or that
would,terminate the Lease.
e. There are no escrows or other deposits from the Lessee held by the Lessor pursuant to the
Lease.
f. Pursuant to the Lease,the Initial Term of the Lease expires on December 31,2056 at H:59
PM with no further option to renew.
for notices is: City of Forth Worth Aviation
g•
The Lessor's current correct address o ty ,
Department,201 American Concourse,Suite 330,Fort Worth TX,76106.
h. The Lessor has not received written notice of any pending eminent domain proceedings or
other governmental actions or any judicial action of any kind against the Lessor's interest
in the Leased Premises.
Consent to Second Leasehold
Deed orTrust on Lease Site E-24 at Spinks Airport
In favor of Cortland Credit Lending Corporation
Page 4 of 8
14. The provisions of this Agreement shall be self-operative and effective without the execution of any
further instruments on the part of any party hereto.
15. Lessor understands and agrees that this Agreement is for the benefit of the Secured Party,that the
Secured Party relied upon this Consent to Leaschold Deed of Trust and Estoppel in making its
decision to make the Loan to Lessee and that the Secured Party would not make the Loan absent
Lessor's execution and delivery of this Agreement,
16. This Agreement may not be withdrawn, amended or modified except by a written agreement
executed by the parties hereto and approved by Lessor's City Council.Lessee and the Secured Party
covenant and agree that they will not amend the Deed of Trust, or assign any rights and/or
obligations thereunder, without the prior written consent of Lessor; provided, however, Secured
Party may assign the Deed of Trust and the obligations secured thereunder to an affiliate of Secured
Party without Lessor's consent but Secured Party must notify Lessor of such assignment.
17. This Agreement shall be construed in accordance with the laws of the State of Texas. Venue for
any action arising under the provisions of this Agreement shall lie in state courts located in Tarrant
County,Texas or in the United States District Court for the Northern District of Texas,Fort Worth
Division.
18. This written instrument, including any documents attached hereto and/or incorporated herein by
reference,contains the entire understanding and agreement between.Lessor,Lessee and the Secured
Party as to the matters contained herein.Any prior or contemporaneous oral or written agreement
concerning such matters is hereby declared null and void to the extent in conflict with this
Agreement.
19. The person signing this Agreement hereby warrants that he/she has the legal authority to execute
this Agreement on behalf of the respective party,and that such binding authority has been granted
by proper order,resolution,ordinance or other authorization of the entity.The other party is fully
entitled to rely on this warranty and representation in entering into this Agreement.
[Signature Pages Follow]
Consent to second Leasehold
Deed of Trust on Lease Site E-20 at Spinks Airport
In favor of Cortland Credit Lending Corporation
Page 5 of 8
IN WITNESS WHEREOF,the parties hereto have executed this Agreement in multiples on this
the day of ,2022.
CITY OF FORT WORTH:
D'qn'q Bu(cihd%ff
By:
Dana Burghdoff(Apr 7,2022 15:09 CDT)
Dana Burghdoff
Assistant City Manager
Date:
Apr 7, 2022
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on
this day personally appeared Dana Burghdoff, known to me to be the person whose name is
subscribed to the foregoing instrument, and acknowledged to me that the same was the act of the
City of Fort Worth and that he executed the same as the act of the City of Fort Worth for the
purposes and consideration therein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE,this day of
2022. Apr 7,2022
Selena Ala(Apr 7,2022 16:24 CDT)
Notary Public in and for the State of Texas
APPROVED AS TO FORM ATTEST: , � koeo
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F� O
AND LEGALITY:
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Thomas Royce Hansen Jannette S. Goodall �nEXpso- '
Assistant City Attorney City Secretary
M&C:220I24 1�4 „µYPVe SELENA ALA
pp 02 22 2022 i p Notary Public
Date Approved: / / ••. STATE or TEXAS
Form I295:2022 836538 "FOF�*` My ComNotm Exp,Mr.31,2024
Contract Compliance Manager:
By signing,I acknowledge that I am the person responsible for the monitoring and administration of this
contract, including ensuring all performance and reporting requirements.
Barbara Goodwin
Real Property Manager
OFFICIAL RECORD
Consent to Second Leasehold CITY SECRETARY
Deed of Trust on Lease Site E-20 at Spinks Airport
In favor of Cortland Credit Lending Corporation
Page 6of8 FT. WORTH, TX
LESSEE:
DUMONT GROUP PROPERTIES VI,LLC
BY:
BkRiEL PIRAINO
Manager
Date: 4,9—C—t+ 1 t Z
STATE OF T-BXA-S §
1�6.� �T"Lc_r
COUNTY O Z' T§'
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on
this day personally appeared Daniel S. Piraino known to me to be the person whose name is
subscribed to the foregoing instrument, and acknowledged to me that the same was the act of
Dumont Group Properties VI,LLC and that he executed the same as the act of Dumont Group
Properties VI, LLC for the purposes and consideration therein expressed and in the capacity
therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this _ day of
)2022.
Notary Public in and for the State of:l'mm--
BROOKE SAVADEL
Notary Public
State of Delaware
My Commission Expires On
August 11,2023
Consent to Second Leaschold
Deed of Trust on Lease Site B-20 at Spinks Airport OFFICIAL RECORD
In favor of Cortland Credit Lending Corporation
Page 7 of CITY SECRETARY
FT. WORTH, TX
SECURED PARTY:
CORTLAND CREDIT LENDING CORPORATION
By:::
SEAN ROGISTER
CEO
Date: ANV-Gt1 2$ t 2022
PROVINCE OF ONTARIO §
BEFORE ME, the undersigned authority, a Notary Public in and for the Province of
Ontario,on this day personally appeared Sean Rogister known to me to be the person whose
name is subscribed to the foregoing instrument, and acknowledged to me that the same was the
act of Cortland Credit Lending Corporation and that he executed the same as the act of
Cortland Credit Lending Corporation for the purposes and consideration therein expressed and
in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this _2-84" day of
. , 2022.
Notary Public in and for the Province of Ontario
Consent to Second Leasehold OFFICIAL RECORD
Deed of Trust on Lease Site E-20 at Spinks Airport
In favor of Cortland Credit Lending Corporation CITY SECRETARY
Page 8 of 8
FT. WORTH, TX
Official site of the City of Fort Worth,Texas
CITY COUNCIL AGENDA FoRTWORTH_
Create New From This M&C
DATE: 2/22/2022 REFERENCE""M&C 22-LOG 55FWS DUMONT CONSENT TO
NO.: 0124 NAME: LEASEHOLD DEED OF TRUST,SITE E20
CODE: C TYPE: CONSENT PUBLIC NO
HEARING:
SUBJECT. (CD 6)Authorize the Execution of a Consent to Leasehold Deed of Trust to Enable
Dumont Group Properties VI, LLC to Obtain an Additional Business Loan, Using as
Collateral, Improvements on Lease Site E20 Located at Fort Worth Spinks Airport
RECOMMENDATION:
It is recommended that the City Council authorize the execution of a consent to leasehold deed of
trust to enable Dumont Group Properties VI, LLC to obtain an additional business loan, using as
collateral, improvements on lease site E20 located at Fort Worth Spinks Airport.
DISCUSSION:
On December 27,2016, Mayor and Council Communication (M&C)C-28043, City Council approved
City Secretary Contract No.48506,a Hangar and Ground Lease Agreement with Dumont Group
Properties VI, LLC, (Dumont),for Lease Site 20E at Fort Worth Spinks Airport. Lease Site 20E
consists of 158,735 square feet of ground space and a 51,300 square foot hangar.
On March 24,2020, (M&C C-20-0202)City Council approved City Secretary Contract No.48506-
CD1 EC1,a Consent to Leasehold Deed of Trust made between the City of Fort Worth (City),
Dumont, and Deak Companies, LLC and Groupo Piraino, LLC(Initial Lender). Pursuant to a financing
agreement between the Dumont and Initial Lender, Dumont granted a lien on all personal property of
Dumont and a lien on Dumont's leasehold interest in the leased premises, pursuant to a certain Deed
of Trust,Security Agreement and Fixture Filing in favor of the Initial Lender.
On December 8, 2021, Dumont informed the City it is now seeking additional financing from Cortland
Credit Lending Corporation (Cortland)and as a condition to providing the requested additional
financing to Dumont,Cortland required,and Initial Lender has agreed,for the Initial Lender's original
deed of trust to be subordinate to a new deed of trust in favor of Cortland. Additionally, Dumont's
leasehold located at Lease Site 20E at Fort Worth Spinks Airport is currently listed for sale. In the
event a bona fide offer for the leasehold interest is accepted,the sale will be contingent on approval
of a consent to assignment by City Council. Proceeds from the sale of the leasehold interest will be
applied to financing and the liens will be removed.
The Consent to Leasehold Deed of Trust will grant Dumont's lenders,Cortland Credit Lending
Corporation,the right,subject to any superior lien,to operate as Lessee or secure another tenant in
place of Dumont, if previously approved by the City Council, in the event Dumont defaults on its loan
or its lease with the City of Fort Worth.The Lease Agreement prohibits Dumont from making any
assignment of the lease or causing a lien to be made on improvements constructed on the leased
premises without City Council approval.This type of transaction is routine for airport tenants and Staff
has no objection to Dumont's request.
Fort Worth Spinks Airport is located in COUNCIL DISTRICT 6
FISCAL INFORMATION/CERTIFICATION:
The Director of Finance certifies that approval of this recommendation will have no material effect on
City funds.
TO
Fund Department Account Project Program Activity Budget Reference# Amount
ID I ID I Year I (Chartfield 2)
FROM
Fund Department Account Project Program Activity Budget Reference# Amount
ID I I ID I I Year Chartfield 2
Submitted for City Manager's Office by_ Dana Burghdoff(8018)
Originating Department Head: Roger Venables(5402)
Additional Information Contact: Ricardo Barcelo(5403)
ATTACHMENTS
E20 Location Map.pdf (Public)
FID TABLE.xlsx (CFW Internal)
Form 1295 Cortland.pdf (CFW Internal)
Form 1295 Dumont.pdf (CFW Internal)