Loading...
HomeMy WebLinkAboutContract 49443 OFFICIAL RECORD P CITY SECRETARY ►�tiP FT.WORTH,TX o ��C' '� CITY SECRETARY CONTRACT N0. LWtm core ,re urn to: Steven Camp `r' `�!> Gardere Wynne Sewell LLP9p9� 2021 McKinney Avenue, Suite 1600 s'A a1' Dallas, Texas 75201 t yid RECOGNITION NON-DISTURBANCE AND ESTOPPEL AGREEMENT This RECOGNITION, NON-DISTURBANCE AND ESTOPPEL AGREEMENT ("Agreement") is dated as of JUNE 29, 2017 ("Effective Date"), and executed by THE CITY OF FORT WORTH, a Texas home-rule corporation ("Landlord"), to PLAINSCAPITAL BANK ("Lender"). WITNESSETH : WHEREAS, Landlord is the fee owner of that certain real property described on Exhibit A attached to this Agreement and incorporated in this Agreement by this reference (the "Landlord Tract" and the"Premises") located in Tarrant County,Texas. WHEREAS, Landlord, as landlord, has leased to FORT WORTH MUSEUM OF SCIENCE AND HISTORY, a Texas non-profit corporation ("Tenant" and "Borrower"), as tenant, the Premises pursuant to that certain Contract for Lease of Property (as same has been heretofore or may hereafter be amended,the "Lease")dated October 1,2007; WHEREAS, pursuant to the terms of that certain Loan and Security Agreement (as same may hereafter be amended "Loan Agreement")dated as of even date with this Agreement,by and between Lender and Borrower, Lender has made a$6,100,000.00 loan(the "Loan") to Borrower, to, among other things,refinance the Premises; WHEREAS, the Loan is secured by, among other things, a first priority Leasehold Deed of Trust (as same may hereafter be amended, the "Leasehold Mortgage") dated as of even date with this Agreement, executed by Borrower, in favor of Lender, covering, among other things, Borrower's leasehold interest in and to the Premises (collectively, the "Leasehold Estate") and all of the other assets of Borrower located in or on the Leasehold Estate which are pledged as security for the Loan(collectively,the "Collateral"); WHEREAS, in making the Loan to Borrower, Lender is relying on the waivers and agreements relating to the Leasehold Estate and Collateral which are set forth in this Agreement. NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Landlord hereby agreeS as follows: 1. RECOGNITION. Landlord acknowledges and consents to the execution and delivery by Borrower to Lender of the Leasehold Mortgage covering the Leasehold Estate and Collateral located at the Premises and the recording of the Leasehold Mortgage in the applicable real property records of Tarrant County, Texas. Landlord hereby acknowledges and agrees that no further consents by Landlord, other than the foregoing consent, are required under the Lease RECOGNITION,NON-DISTURBANCE AND ESTOPPEL AGREEMENT—Page I PLAINSCAPITAL BANK—THE FORT WORTH MUSEUM OF SCIENCE AND HISTORY CORPORATION with respect to consenting to the execution and recording of the Leasehold Mortgage. The Leasehold Mortgage, including any modification or amendment thereto shall at all times be subject to and subordinate to all rights and interests of Landlord, and shall be a lien solely on Tenant's interests in and to the Lease, Tenant's Leasehold Estate and the Collateral now or hereinafter located on the Premises and such Leasehold Mortgage shall never be a lien or encumbrance upon the Landlord Tract. Neither Lender nor any other holder of the Leasehold Mortgage, nor anyone claiming by, through or under the same, shall, by virtue thereof, acquire any greater rights under the Lease than Tenant has under the Lease or any rights greater than any holder of such Leasehold Mortgage has under this Agreement. Lender and any holder of the Leasehold Mortgage shall promptly deliver to Landlord copies of all documents executed by Tenant to evidence the Leasehold Mortgage, all amendments thereto and all notices of default sent from the holder of the Leasehold Mortgage to Tenant or any guarantor of Tenant. Lender shall give to Landlord a notice (hereinafter referred to as a "Mortgage Notice") containing the name and address of any applicable holder of a Leasehold Mortgage and upon written request from the holder of the any Leasehold Mortgage identified in a Mortgage Notice, Landlord will acknowledge, in writing,the receipt of any Mortgage Notice which Landlord has received. 2. LANDLORD'S SUBORDINATION AND EXPRESS RETENTION OF RIGHTS. Subject to the terms of this Agreement and for so long as the Borrower is obligated or indebted to Lender, Landlord (i)consents to the Collateral being located on the Premises, provided the Collateral is not otherwise prohibited under the terms of the Lease or by applicable laws and neither Tenant's right to possession of the Premises has been terminated nor has the Lease otherwise been terminated and the Lease not otherwise assumed or the subject of a New Lease in accordance with Section 3(b) below; and (ii) subordinates its liens and security interest, including contractual, statutory and constitutional lien rights to the Collateral to the liens and security interest of the Leasehold Mortgage; rop vided, however, Landlord expressly retains (a) its possessory right to all prepaid rents, security deposits, amounts owed by Borrower to Landlord under the Lease and setoff rights it has under the Lease, at law and in equity, and (b)its rights under the Lease to receive payments made by any sublessee, licensee or concessionaire using or occupying of any portion of the Premises. Notwithstanding the foregoing subordination, Lender's interests(including security interest)in and to the Premises which by the terms of the Lease become or may become the property of Landlord upon the earlier of the termination of the Lease or the termination of Tenant's right to possession under the Lease shall be no greater than Tenant has under the Lease. 3. NOTICE AND CURE LEASE DEFAULT. (a) Notice of Default. In the event of a default under the Lease, Landlord agrees to provide Lender contemporaneously with the default notice sent to Tenant with a copy of such default notice and Lender shall have the same opportunity, but not the obligation,to cure the default as Tenant. (b) Termination of Tenant's Right of Possession of the Premises or Termination of Lease. If Tenant shall not cure or remedy any default or breach of the Lease within the period provided for in the Lease, and as a result of such default (i) Tenant's right to possession of the Premises has been terminated by Landlord, without terminating the Lease, or RECOGNITION,NON-DISTURBANCE AND ESTOPPEL AGREEMENT—Page 2 PLAINSCAPITAL BANK—THE FORT WORTH MUSEUM OF SCIENCE AND HISTORY CORPORATION (ii) Landlord has terminated the Lease, then thereafter Lender shall thereupon be entitled to exercise any one or more of the following rights: (i) if all such events of default that are capable of being cured (other than the failure to pay any amounts then due under the Lease, which must in any and all events be cured) are cured by Lender within thirty(30) days following the receipt by Lender of such written notice and provided that within such thirty (30) day period, Lender either (i) expressly assumes in writing all obligations under the Lease (except as expressly set forth in this Agreement) by execution of an assumption agreement in form and substance reasonably acceptable to Landlord, or, at the option of the Lender, (ii)the Lender executes a new lease with Landlord ("New Lease") (provided, however, any such New Lease shall be subject to the approval of Landlord's city council), upon the same terms and conditions under the Lease (except as otherwise expressly set forth in this Agreement) for the remainder of the Lease Term(as defined in the Lease) and in such event Landlord shall not exercise any further rights of Landlord with respect to such default, provided, however, Lender or the Approved Substitute Tenant (as hereinafter defined) shall as a condition to Landlord's obligation hereunder reimburse Landlord for all reasonable attorney's fees and costs incurred by Landlord in connection with Landlord's preparation, negotiation and execution of any assumption agreement and/or New Lease. The failure of Lender to strictly and timely comply with all the terms and provisions of this Section 3(b)(i) shall, at Landlord's option by written notice from Landlord to Lender, automatically terminate all rights of Lender and/or any Approved Substitute Tenant to assume the Lease or to enter into a New Lease pursuant to this Section 3(b)(i). "Approved Substitute Tenant" means, subject to the approval of Landlord's city council, collectively, all of the following: (i) Lender; (ii) any subsidiary of Lender, or any entity under the control of Lender; or (iii) any purchaser of the Leasehold Estate in foreclosure, or other party which acquires the Leasehold Estate in lieu of foreclosure;or (ii) if all such events of default that are capable of being cured (other than the failure to pay any amounts then due under the Lease, which must in any and all events be cured) are cured by Lender within thirty (30) days following the receipt of such written notice and provided that within such thirty (30) day period Lender notifies Landlord in writing that Lender intends to foreclose under the Leasehold Mortgage or accept a deed-in-lieu of foreclosure and within one hundred twenty (120) days thereafter Lender does in fact foreclose or accept a deed-in-lieu of foreclosure then is such event Lender or an Approved Substitute Tenant may either assume the Lease or execute a New Lease (under the same terms and conditions set forth in Section 3(b)(i) above) provided all events of default that are capable of being cured (other than the failure to pay any amounts then due under the Lease, which must in any and all events be cured) are cured by Lender and within five (5) business days following such foreclosure or deed-in- lieu of foreclosure the Lender or an Approved Substitute Tenant either expressly assumes the obligations of Tenant under the Lease or enters into a New Lease. During the pendency of any such foreclosure proceedings,the Lender shall timely RECOGNITION,NON-DISTURBANCE AND ESTOPPEL AGREEMENT—Page 3 PLAINSCAPITAL BANK—THE FORT WORTH MUSEUM OF SCIENCE AND HISTORY CORPORATION pay or cause to be paid all rent, insurance premiums, taxes and other monetary obligations of Tenant under the Lease, including past due amounts, as the same become due, and perform all of Tenant's other obligations under the Lease, excepting any obligations of Tenant to satisfy or otherwise discharge any lien, charge or encumbrance against Tenant's Leasehold Estate that are junior in priority to the lien of the Leasehold Mortgage and that have been extinguished as a matter of law and fact by the foreclosure of the Leasehold Mortgage. The failure of Lender to timely pay all amounts during the pendency of any such foreclosure proceedings prior to the assumption of the Lease or the execution of the New Lease or to timely execute either an agreement assuming the Lease or New Lease (under the same terms and conditions set forth in Section 3(b)(i) above) shall, at Landlord's option by written notice from Landlord to Lender, automatically terminate all rights of Lender and/or any Approved Substitute Tenant to assume the Lease or to enter into a New Lease pursuant to this Section 3 b ii (c) Priori Any New Lease made pursuant to Section 3(a) or (b) shall have the same priority to any mortgage, lien or encumbrance against the Landlord Tract which Tenant's Leasehold Interest had pursuant to the Lease prior to the Effective Date; provided, however, if a subsequent mortgage or voluntary lien or encumbrance is placed against the Landlord Tract, Landlord shall, promptly following written request therefor, cause the holder of such mortgage or voluntary lien or encumbrance to enter into a subordination and non- disturbance agreement with the Approved Substitute Tenant under the New Lease upon terms and provisions reasonably acceptable to such holder and the Approved Substitute Tenant. Additionally, the Approved Substitute Tenant under such New Lease shall have the same right, title, and interest in and to any subleases, licenses, concessions or similar rights or interests therein,and to the Premises as Tenant had under the Lease. (d) Lender Need Not Cure Specified Defaults. Nothing herein contained shall require Lender or any Approved Substitute Tenant as a condition to its exercise of rights hereunder to cure any default of Tenant not capable of being cured by Lender or such Approved Substitute Tenant (other than the failure to pay any amounts then due under the Lease, which must in any and all events be cured) in order to comply with the provisions of Section 3 or as a condition of entering into an assumption of the Lease or the New Lease. 4. ENTRY. As long as Tenant is in possession of the Premises, Lender and/or Lender's authorized representatives or agents, may enter upon the Property at any reasonable time and from time to time for the purpose of inspecting, repairing, and or removing any or all of the Collateral; however, unless agreed to by Landlord in writing, Lender shall not conduct any sales or auctions of the Collateral on the Premises. Any removal of the Collateral from the Premises by Lender shall be made only on a weekday (excluding, however, any legal holiday). Any such removal by Lender must be scheduled in advance with Landlord's property manager and Landlord's security personnel for the Premises, if any. Landlord reserves the right to require satisfactory written proof of sufficient liability insurance from any inspector, repairman or contractor entering the Premises or any moving company or other person or entity removing Collateral from the Premises. In the event that the Lender, its employees, officers, contractors or agents damage the Premises, or any other property in inspecting, repairing and/or removing the RECOGNITION,NON-DISTURBANCE AND ESTOPPEL AGREEMENT—Page 4 PLAINSCAPITAL BANK—THE FORT WORTH MUSEUM OF SCIENCE AND HISTORY CORPORATION Collateral, the Lender shall promptly reimburse Landlord for all damages caused by Lender and/or its employees, officers, contractors or agents. Lender agrees to indemnify and hold Landlord harmless from all claims, causes of action, damages and reasonable attorney's fees incurred by Landlord arising out of Lender or its employees,officers, contractors or agents' entry onto the Premises and/or the removal of the Collateral from the Premises, including any claim by Tenant as to damage to the Collateral or that Landlord should not have permitted Lender to remove the Collateral from the Premises. 5. NON-DISTURBANCE. Subject to Lender strictly complying with the terms and provisions of Section 2 above, Landlord agrees with Lender, that the use, possession, occupancy or enjoyment of the Premises by Tenant (or Approved Substitute Tenant) shall not in any way be disturbed or otherwise interfered with by Landlord, nor shall the Leasehold Estate or other rights granted by the Lease be affected by Landlord, by reason of(i)any foreclosure, deed in lieu of foreclosure or other remedial action of Lender under the Leasehold Mortgage, or (ii)the taking by Lender of possession of the Leasehold Estate pursuant to any remedial provision of the Leasehold Mortgage. Lender and Approved Substitute Tenant shall not be bound by any material amendment or material modification of the Lease that adversely and materially affect Tenant's obligations under the Lease that are made in violation of the terms of Section 6 of this Agreement without Lender's advance written consent,which consent will not be unreasonably withheld, conditioned or delayed. Notwithstanding anything to the contrary in this Agreement, the Lease or the Leasehold Mortgage, Landlord hereby acknowledges and agrees that in no event or circumstance, whether as a result of the exercise by Lender of any rights, recourses or remedies available under the Leasehold Mortgage, including foreclosure of the Leasehold Mortgage, the exercise by Lender and/or the Approved Substitute Tenant of their rights under this Agreement, the payment by Lender and/or Approved Substitute Tenant to Landlord and/or any other party of any amounts due under or in connection with the Lease, this Agreement, or otherwise, or otherwise in any event or circumstance, other than by the express written assumption thereof, shall Lender and/or Approved Substitute Tenant (i) be, become, or be deemed to have become obligated or liable to perform any of Tenant's obligations under the Lease or any of Tenant's obligations under the Lease, or (ii) have or have been deemed to have assumed Tenant's Obligations under the Lease unless and until Lender or the Approved Substitute Tenant expressly assume the obligations and liabilities under the Lease in writing. Notwithstanding the foregoing, Lender and Approved Substitute Tenant shall be liable for all acts, damages and causes of action arising out of their or their employees, officers, contractors, inspectors and agents entry upon the Premises and for all contracts and agreements affecting the Premises entered into by Lender and Approved Substitute Tenant with third parties and Lender and Approved Substitute Tenant agree to indemnify and hold Landlord harmless from any and all claims,demands, causes of action and attorney's fees arising out of the foregoing. 6. LEASE AMENDMENTS. (a) Lease. Without the prior written consent of Lender (which consent will not be unreasonably, withheld, conditioned or delayed), the Lease shall not be amended or modified in any manner to shorten the term, increase the rent or in any other manner which materially adversely affects the rights of Lender or Tenant under the Lease or this Agreement. Any such material amendment or modification made without consent of Lender shall be ineffective and void as to Lender. RECOGNITION,NON-DISTURBANCE AND ESTOPPEL AGREEMENT—Page 5 PLAINSCAPITAL BANK—THE FORT WORTH MUSEUM OF SCIENCE AND HISTORY CORPORATION (b) No Termination or Disturbance. So long as Tenant (or Approved Substitute Tenant, if applicable) is not in default beyond any period(s) provided under the Lease (or New Lease, if applicable)to cure such default in: (i)the payment of any monetary obligation under the Lease (or New Lease, if applicable), or (ii) the performance of any other material terms, covenants or conditions with which Tenant (or Approved Substitute Tenant, if applicable) is obligated to comply pursuant to the Lease(or New Lease, if applicable)and provided Lender has strictly complied with the terms of Section 2 above, then Tenant's (or Approved Substitute Tenant's, if applicable) right of possession to the Premises shall not be terminated, affected or disturbed by Landlord or any purchaser or subsequent owner of the Landlord Tract as a result of Landlord's default under the Lease. 7. SUCCESSORS TO LENDER. For purposes of this Agreement, the term "Lender" shall include Lender's successors and assigns including, but not limited to, any person who acquires Lender's interest in and to the Loan. This Agreement shall accordingly be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, legal representatives, successors and assigns. 8. SUCCESSORS TO TENANT. Landlord agrees that if Lender or any other Approved Substitute Tenant shall succeed to the interest of Borrower under the Lease (or New Lease), neither Lender nor any Approved Substitute Tenant shall be personally liable for any action or omission of Tenant under the Lease, accruing or occurring prior to succeeding to such interest, all of which shall remain the personal obligation or liability of Tenant; provided, however Landlord as a condition precedent to Lender or Approved Substitute Tenant assuming the Lease or entering into a New Lease may require any default capable of being cured (other than the failure to pay any amounts then due under the Lease, which must in any and all events be cured), including a liability or occurrence that constitutes a default under the Lease regardless of its time of accrual or occurrence, to be cured. 9. SUCCESSORS TO LANDLORD. For the purposes of this Agreement, the term "Landlord" shall include all successors in fee title to the. This Agreement shall be binding upon all such successors in title to the fee estate of Landlord Tract. 10. PERMITTED TRANSFERS. (a) It is acknowledged that the Leasehold Mortgage may be assigned by Lender in accordance with its terms. Notwithstanding anything stated to the contrary in the Lease, the following transfer shall be permitted and shall not require the approval or consent of Landlord: (i) A transfer of the Leasehold Estate at a foreclosure sale under the Leasehold Mortgage, whether pursuant to a judicial foreclosure decree or non judicial foreclosure, if allowed by applicable law, or by an assignment in lieu of foreclosure. (b) Following the transfer, if any, described in this Section 10, all non-curable defaults existing under the Lease prior to such transfer shall be deemed waived without further notice or action of any party. RECOGNITION,NON-DISTURBANCE AND ESTOPPEL AGREEMENT—Page 6 PLAINSCAPITAL BANK—THE FORT WORTH MUSEUM OF SCIENCE AND HISTORY CORPORATION 11. ASSIGNMENTS. Landlord agrees to notify any assignee of Landlord's interest in the Lease of the existence of this Agreement. 12. NO WAIVER, AMENDMENTS. Except with respect to specific time periods set forth in this Agreement, no delay, failure or discontinuance of Lender in exercising any right, power or remedy hereunder or under the Leasehold Mortgage shall affect such right, power or remedy; nor shall any single or partial exercise of any such right, power or remedy preclude, waive or otherwise affect the further exercise thereof or the exercise of any other right, power or remedy. The rights,powers and remedies of Lender hereunder are cumulative and not exclusive. Any waiver, permit, consent or approval of any kind by Lender of any breach of or default under this Agreement, or any such waiver of any provisions or conditions hereof, must be in writing and shall be effective only to the extent set forth in such writing. This Agreement may be amended or modified only in writing signed by all parties hereto. Time is of the essence with respect to any and all specific time periods set forth in this Agreement 13. ESTOPPELS. Landlord hereby certifies and represents to Lender as follows: (a) Lease Effective. The Lease has been duly executed and delivered by Landlord, and to the knowledge of Landlord the Lease is in full force and effect, the respective obligations of Tenant and Landlord thereunder are valid and binding, and there have been no additional modifications or additions to the Lease,written or oral. (b) Entire Agreement. The Lease constitutes the entire agreement between Landlord and Tenant with respect to the Premises and Tenant has no rights with respect to the Premises other than as set forth in the Lease. (c) No Default by Landlord. To Landlord's knowledge, Landlord is not in default in the performance of the terms and provisions of the Lease, nor to Landlord's knowledge, is there now any fact or condition which, with notice or lapse of time or both, would become such a default. (d) No Defaults by Tenant. To the knowledge of Landlord, as of the date hereof, there exists no breach, default, or event or condition which, with the giving of notice or the passage of time or both, would constitute a breach or default by Tenant under the Lease. 14. NOTICES. All notices or other communications required or permitted to be given pursuant to the provisions hereof shall be deemed served upon delivery or, if mailed, upon the first to occur of receipt or the expiration of three (3)days after deposit in United States Postal Service, certified mail, postage prepaid and addressed to the address of Landlord or Lender appearing below: LANDLORD: CITY OF FORT WORTH 1000 Throckmorton Street Fort Worth,Texas 76102 Attention: City Manager RECOGNITION,NON-DISTURBANCE AND ESTOPPEL AGREEMENT--Page 7 PLAINSCAPITAL BANK—THE FORT WORTH MUSEUM OF SCIENCE AND HISTORY CORPORATION LENDER: PLAINSCAPITAL BANK 3707 Camp Bowie Blvd Fort Worth, Texas 76107 Attention: Courtney Garner Lewis Notwithstanding the foregoing, any party shall have the right to change its address for notice hereunder by the giving of written notice thereof to the other party in the manner set forth in this Agreement. 15. GOVERNING LAW, SUCCESSORS, ASSIGNS. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, and shall be binding upon and inure to the benefit of the heirs, executors, administrators, legal representatives, successors and permitted assigns of the parties. 15. CONFLICT WITH LEASE. This Agreement is not intended to amend, modify, supplement, or supersede any of the provisions of the Lease as such relate solely to the Tenant and, to the extent there may be any conflict or inconsistency between the Lease and this Agreement as same relate to the Tenant, the Lease shall control. Except as expressly set forth in this Agreement with respect to Tenant, this Agreement does not otherwise amend, modify, supplement,or supersede any of the provisions of the Lease. IN WITNESS WHEREOF,Landlord has signed this Agreement. [Remainder of page intentionally left blank; signatures follow on next page.] RECOGNITION,NON-DISTURBANCE AND ESTOPPEL AGREEMENT—Page 8 PLAINSCAPITAL BANK—THE FORT WORTH MUSEUM OF SCIENCE AND HISTORY CORPORATION LAND-10 r. CI O F RT WO H By: -e Name: e cooke,Property Management Director Title: THE STATE OF TEXAS § COUNTY OF TARRANT § The foregoing instrument wACKNOWLEDGED before me �!��All of g , 2017, by <-' , the�t(jt�� Olr of THE CfFY ►u4 Ct.OYDE JORDAN ►nicipal corporation. . Notary Public STATE OF TEXAS [SEAL] � My comm.Exp.July 13.2018 Notar ublic, tate of Texas My Commission Expires: • /3 ! Printed Narne of Notary Public ATTEST: Approv d As o orm: d By: By: ,110 Na P Na e: Title: Cl kj Vere,M L-L1 Title: ApF FORTS * 2 CAS OFFICIAL.RECORD CITY S ICROTARY FT.WORTH9 YXX RECOGNITION,NON-DISTURBANCE AND ESTOPPEL AGREEMENT—Signature Page PLAINSCAPITAL BANK—THE FORT WORTH MUSEUM OF SCIENCE AND HISTORY CORPORATION EXHIBIT A PREMISES Lots 1 and 2,Block 1,FORT WORTH MUSEUM OF SCIENCE AND(HISTORY ADDITION,an Addition to the City of Fort Worth,Tarrant County,Texas,according to plat recorded in Cabinet A,Slide 12273, Deed Records of Tarrant County,Texas. EXHIBIT A,Premises—Cover Page Gardere0l-10349837v.3