HomeMy WebLinkAboutContract 30731 CITY SECRETARY
CONTRACT NO.
CONSENT TO DEED OF TRUST LIEN UPON LEASEHOLD
FORT WORTH MEACHAM INTERNA'T'IONAL AIRPORT
IMPROVED AND UNIMPROVED GROUND LEASE AGREEMENT
WITH MANDATORY IMPROVEMENTS
(LEASE SITE NOS.5-N, 6-N, 7-N, 8-N, 9-N AND IO-N)
(CITY SECRETARY CONTRACT NO. 29135)
This CONSENT TO DEED OF TRUST LIEN UPON LEASEHOLD ('Agreement")
is made and entered into by and between the CITY OF FORT WORTH ("Lesser"); a home
rule municipal corporation organized under the laws of the State of Texas; MEACHAM
DEVELOPMENT, LLC ("Lessee"), a Texas limited liability company; and SOUTHWEST
BANK OF TEXAS N.A. ("Lender"), a national banking association.
A. On or about September 26, 2003, Lessor and Lessee entered into City Secretary Contract
No. 29135 (the "Lease"), a lease'of improved and unimproved land at Fort Worth Meacham
International Airport ("Airport") known as Lease Site Nos. 5-N, 6-N, 7-N, 8-N, 9-N and 10-N
(the "Leased Premises").
B. On or about'December 16, 2003, Lessee and Legacy Bank of Texas ("Prior Lender") .
entered into that certain Construction Loan Agreement (the "Construction Loan Agreement")
whereby Prior Lender provided certain financing related to Lessee's construction of
improvements on the Leased Premises pursuant to that certain Promissory Note dated of even
date therewith executed by Lessee and payable to the order of Prior Lender in the original
prim-cipaI amount of $3,137,579.00 (the "Note") and secured by, among other collateral, that
certain Leasehold Deed of Trust(with Security Agreement and Assignment
Of Trust") on the Leased Premises and that certain Assignment of Rents) (turn "Deed
Rents") on the Leased Premises. gnment of Rents (the "Assignment of
C. On or about December 17, 2003, Lessor consented to the Deed of Trust pursuant to that
certain Consent to Deed of Trust Lien Upon Leasehold(the "Prior Consent").
D. Lender is purchasing the Note, the Construction Loan Agreement, the Deed of Trust and
the related loan documents from Prior Lender and is modifying and increasing the Note to
$6,700,500.00 and modifying the Deed of Trust and the Assignment of Rents pursuant to that
certain Modification of Note and Loam Documents between Borrower and Lender (the
"Modification").
E. In order for Lessee to obtain the additional financing evidenced by the terms of the
Modification related to Lessee's construction of improvements on the Leased Premises, Lessee
and Lender desire Lessor to consent to the execution by Lessee of the Modification which .
increases the obligations secured by the Deed of Trust and the Assignment of Rents and modifies
certain provisions of the Note, the Deed of Trust and the Assignment of Rents.
Meacham Development Consent to Deed-of Trust
with southwest Bank of Texas
NOW, THEREFORE,Lessor, Lessee and the Lender hereby agree as follows:
I. The statements set forth in the recitals above are tree and-correct and form the basis upon
which Lessor, Lessee and,the Lender have entered into this Agreement. The Lease is 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 of the Deed of Trust, the
Assignment of Rents and the Modification, which are attached hereto as Exhibit"A". Lessor
does not adopt, ratify or approve of any of the particular provisions of the Deed of Trust or the
Assignment of Rents, each as modified by the Modification, and does not grant any right,
privilege or use to Lessee, Lender, or any successor in interest pursuant to the Deed of Trust or
the Assignment of Rents, each as modified by the Modification, 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 or the Assignment of Rents, each as modified by the
Modification, Lessee and the Lender acknowledge, understand and agree that Lessee and the
Lender do not have any right to convey any interests in the Leased Premises greater than those
granted specifically by the Lease. In the event of any conflict between the Deed of Trust or the
Assignment of Rents, each as modified by the Modification, and the Lease, the Lease shall
control in all respects as to Lessor and as to Lessee's and the Lender's obligations to Lessor
established by the Lease and/or this Agreement. In the event of any conflict between the Deed of
Trust or the Assignment of Rents, each as modified by the Modification, 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 Lease Premises, including notice of breach or default by Lessee, Lessor
shall also provide a copy of such written notice to the Lender. Lessor agrees that (i) the Lender
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 Lender'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 Lender with written notice of its intent to exercise any such right.
The Lender 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 Lender, 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 Lender shall negotiate in good faith a reasonable amount of additional time to
cure such default.
5. Lessee agrees that it will not request to or consent to any futare modifications,
amendments or assignments of the Lease without first receiving the Lender'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 Lender's advance written consent shall be void
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and specifically releases, holds harmless and agrees to indemnify Lessor for any damages that
may arise as a result of any such consent.
6. In the event that Lender undertakes to enforce its rights to any collateral granted by the
Deed of Trust or the Assignment of Rents, each as modified by the Modification, on account
default by Lessee under the Deed of Trust or the Assignment of Rents, each as modified by the
Modification, Lessor will cooperate with the Lender in its efforts to assemble and/or remove any
personal property of Lessee on the Premises. The Lender hereby agrees to repair any damages at
or to the Airport, including the Leased Premises, caused by or incident to such removal.
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 Lender 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 or the Assignment of Rents, each as modified by
the Modification, the Lender 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 Lender.
S. 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 Lender agrees that it promptly will notify Lessor in writing when the Lender has
released its rights under the Deed of Trust or the Assignment of Rents, each as modified by the
Modification. This Agreement will automatically terminate on the earlier of(i) the date as of
which the Lender releases such rights or (ii) the date upon which the Lease expires or is
terminated.
10. The Lender may not sell or otherwise transfer in any way any of the Lender's or Lessee's
rights or interest in the Leased Premises to a third party unless Lessor consents to such sale or
transfer in the form of a written agreement approved in advance by Lessor's City Council, which
approval will not be unreasonably withheld or delayed, except that Lender may sell, assign or
participate all or a portion of the promissory note between Lender and Lessee and all other loan
documents evidencing and securing the loan, including the Deed of Trust and the Assignment of
Rents, so long as any purchaser and/or assignee takes subject to the terms of this Agreement.
I L ' Notices to the Lender required pursuant to the provisions of this Agreement shall be
conclusively determined to have been delivered when (i) hand-delivered to the Lender, its
agents, employees, servants or representatives, or (ii) deposited in the United States Mail,
certified, return receipt requested, addressed as follows:
11Fs 1001LawTarmer\AviationWeacham DevetopmentlConsent to DOT Lien raviscd 9.26.04.DOC
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Southwest Bank of Texas
4400 Post Oak Parkwa
Five Post Oak Place
Houston Texas 77027
12. The parties hereto understand and agree that upon expiration or termination of the Lease,
all 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 or the Assignment of Rents, each as
modified by the Modification, except for improvements of a non-permanent nature, all trade
fixtures, machinery, furnishings and other items may specifically be removed from the Leased
Premises in accordance with the Lease. In the event that the Lease expires or is terminated,
Lessee and the Lender covenant and agree that nothing herein shall obligate Lessor to assume in
any way Lessee's indebtedness to the Lender.
13. 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
Lender covenant and agree that they will not materially amend the Deed of Trust or the
Assignment of Rents, each as modified by the Modification, or assign any rights and/or
obligations thereunder(except as permitted in paragraph 10), without the prior written consent of
Lessor,which consent shall not be unreasonably withheld or delayed.
14. 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.
15. This written instrument, including any documents attached hereto and/or incorporated
herein by reference, contains the entire understanding and agreement between Lessor, Lessee and
Lender 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.
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\Ts100EawT er\Aviation\Meacham DevelopmentSConsent to DOT Lien revised 9.28.04.DOC
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EXECUTED this C l U
dayaf �� 2004.
ATTESTED BY
CITY OF FORT WORTH:
By:
arc Ott O� V
Assistant City Manager Contract Authorizati-on
to `
Date:__ zb.- zq�Q Date
APPROVED AS TO FORM AND LEGALITY:
By:
Assistant Ci Attorney
Date:
NIE DEVELOPMENT,LLC
a Te d li ty company:
By:
Name,' ' A.
Title: t ��
Dater 0 µ
SOUTHWEST BAND OF TEXAS N.A., a
national banking associa '
By:
Name. rq V+ti t
Title:
Date: /Q a
51Fs]001I.awlFarmeMviationlMeacham Dcvelapm:11t4Consmt to DOT lien nviscd 9.22 04MC
. 5
STATE OF TEXAS §
COUNTY OF TARRANT §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas,
on this day personally appeared Marc Ott, 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 SEAT, OF OFFICE this day of
— i-heuY _, 2004.
Notary Public in and for the tate of Texas
STATE OF TEXAS §
COUNTY OF TARR.ANT § `.Wy HETTIE LANE
a E MY COMMISSION EXPIRES
July 26,2007
BEFORE ME, the undersigned authorit TZ57 e State of Texas,
on this day personall y appeared% # A own to me to be the person whose
name is subscribed to the foregoing instrument, and acknowedged to nee that the same was the
act of Meacham Development, LLC and that s/he executed the same as the act of Meacham
Development, LLC for the purposes and consideration therein expressed and in the capacity
therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 8 10 day of 2004.
ublic in an for the State of Texas
MEREDITH TREVINO
STATE OF TEXAS NOTARY PUBLIC
w STATE OF TEXAS
My Commission Expires
COUNTY OF HARRIS MAY is,2oi7
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas,
on this day personally appeared known to me to be the person whose
name is subscribed to the foregoing instrument, and acknowledged to nee that the same was the
act of Southwest Bank of Texas N.A. and that s/he executed the same as the act of Southwest
Bank of Texas N.A. for the purposes and consideration. therein expressed and in the capacity
therein stated.
GIVEN UNDER MY LAND AND SEAL, OF OFFICE this 4daof
2004.
C—A-�n
Notary Public in an for the State of Texas
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