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HomeMy WebLinkAboutContract 52414-EC1 CITY SECRETARY gecE ED C0I TRACT NO. 5a 414—FC 1 0 212019 Ci GIB`(iin IV THIS INSTRUMENT PREPARED BY AND WHEN RECORDED,RETURN TO: Tracey S. Bailey, Esq. Winstead PC 500 Winstead Building 2728 N. Harwood Street Dallas,Texas 75201 GROUND LESSOR'S ESTOPPEL CERTIFICATE AND CONSENT First United Bank and Trust Company 6100 Preston Road Suite 100 Frisco, Texas 75034 Attn: Brandon Brewer Re: Ground Lease with Option to Purchase (the "Lease"), dated as of [ �, and more particularly described in Exhibit B, currently by and between BURNETT LOFTS, LLC, a Texas limited liability company ("Tenant"), and the CITY OF FORT WORTH, a Texas municipal corporation ("Landlord"), and demising certain interests in real property in Tarrant County, Texas Ladies and Gentlemen: You have advised us that FIRST UNITED BANK AND TRUST COMPANY, an Oklahoma banking corporation (together with its successors and assigns including any subsequent holders OFFICIAL RECORD GROUND LESSOR'S ESTOPPEL CERTIFICATE AND CONSENT-Page 1 CITY SECRETARY 555-356Bumett Lofts(Catalyst)-Fort Worth,TX FT WORTH,TX of the Loan, the "Lender"), has proposed to make a loan ("Loan") to Tenant. The Loan will be secured by, among other things, that certain first priority leasehold deed of trust (the "Security Instrument") executed by Tenant as borrower for the benefit of Lender, encumbering the Tenant's leasehold estate and the Improvements ("Leasehold Estate") located on the premises demised under the Lease described on Exhibit A hereto (the "Property"). Any capitalized terms used but not defined herein shall have the meanings ascribed to them in the Lease. For the purpose of providing information to Lender and its successors and assigns, with the understanding that they will rely upon the information provided herein, effective as of [ 1, the undersigned Landlord certifies, covenants, and agrees as follows: 1. Landlord is the fee owner of the Property and is the "City" and landlord under the Lease, and there is no mortgage or deed of trust or other liens or encumbrances encumbering Landlord's fee simple title to the Property. 2. A true and complete copy of the Lease and of all amendments, assignments, nondisturbance agreements, and subleases related thereto are attached hereto collectively as Exhibit B, and, except as reflected in Exhibit B, the Lease has not been modified or amended in any other respect. For purposes of recordation of this Ground Lessor's Estoppel Certificate and Consent ("Estoppel") only the description of the Lease will be attached as Exhibit B to the recorded copy of this Estoppel. 3. The Lease is in full force and effect, and, to Landlord's knowledge, there is no existing default under the Lease, and Landlord knows of no event which, with notice or the passage of time or both, would constitute a default under the Lease. 4. All other agreements affecting to the Property, including, but not limited to that certain Tax Increment Financing Economic Development Program Agreement by and between the Board of Directors of Tax Increment Reinvestment Zone Number 8, City of Fort Worth, Texas and Tenant, and any other tax incentive and similar agreements, are in full force and effect, and, to Landlord's knowledge, there is no existing default under any such agreements by any of the parties thereto, and Landlord knows of no event which, with notice or the passage of time or both, would constitute a default under any such agreements by any of the parties thereto. 5. There is no defense, offset, claim or counterclaim by or in favor of Landlord against Tenant under the Lease. 6. There is no suit, action, proceeding or audit pending or, to the knowledge of Landlord, threatened against or affecting Landlord or the Property under the Lease at law or in equity or before or by any court, administrative agency, or other governmental authority which brings into question the validity of the Lease or which, if determined adversely against Landlord, might result in any adverse change to the Leasehold Estate. 7. The only real property presently demised under the Lease is the Property, and, to Landlord's knowledge, the only person or entity presently having an interest in the Leasehold Estate as tenant under the Lease is Tenant. GROUND LESSOR'S ESTOPPEL CERTIFICATE AND CONSENT-Page 2 555-356Bumett Lofts(Catalyst)-Fort Worth,TX 8. The Lease commenced on [ ] and will expire pursuant to its terms on the earlier to occur of: (i) the conveyance of the Property by Landlord to Tenant as set forth in Article XVI of the Lease or (ii) 45 years following the Effective Date of the Lease. The Lease contains one option to renew the term of the Lease for an additional 15-year Term. 9. Tenant has paid rent arising and due and payable under the Lease through December 31, 2019, and the next rental payment is due on January 1, 2020, in the amount of One Dollar and No/100 ($1,00). 10. Except for such legal and commercially reasonable use by Landlord, Landlord has no knowledge (which such knowledge is limited to that certain Phase II Environmental Site Assessment by Enercon on November 23, 2016 and that certain Phase I Environmental Site Assessment by Terracon dated January 23, 2016) that any Hazardous Substance is present or has been used, generated, released, discharged, stored or disposed of by it under, in or about the Property. As used herein, "Hazardous Substance" means any substance, material or waste (including petroleum and petroleum products), which is designated, classified or regulated as being "toxic" or "hazardous" or a "pollutant" or which is similarly designated, classified or regulated under any federal, state or local law, regulation or ordinance. 11. Landlord acknowledges that neither the execution nor delivery of the Security Instrument, nor any modification thereof or assignment of the beneficial interests thereunder, will be a default under the Lease. In addition, Landlord hereby consents to the lien of the Security Instrument upon Tenant's interest under the Lease and acknowledges Lender as a "Leasehold Mortgagee" pursuant to Article IX of the Lease and that, as such, Lender shall be entitled to all of the protections and benefits afforded to a Leasehold Mortgagee pursuant to the terms of the Lease, including, but not limited to, the various lender protections granted in Article IX thereof. Landlord acknowledges and agrees that no default or event of default under the Security Instrument or any other document or instrument evidencing or securing the Loan will, in and of itself, constitute a default or event of default under the Lease. 12. Landlord acknowledges that Lender has requested, and hereby agrees to send (pursuant to and in accordance with Section 9.2 of the Lease), copies of all notices hereafter given by the Landlord to Tenant, and Landlord will send such notices to: Lender: First United Bank and Trust Company 1400 W. Main Street Durant, Oklahoma 74701 With a copy to: First United Bank and Trust Company 6100 Preston Road Suite 100 Frisco, Texas 75034 Attn: Brandon Brewer GROUND LESSOR'S ESTOPPEL CERTIFICATE AND CONSENT-Page 3 555-356/Burnett Lofts(Catalyst)-Fort Worth,TX With a copy to: Winstead PC 500 Winstead Building 2728 N. Harwood Street Dallas, Texas 75201 Attn: Tracey S. Bailey or to such other address as Lender may hereafter specify by written notice to Landlord. 13. (a) Notwithstanding anything to the contrary contained within the Lease, Landlord acknowledges that, if Lender or any of its successors and assigns as holders of a security interest in the leasehold estate owned by Tenant, or their subsidiaries, succeeds to the interest of Tenant under the Lease as a result of foreclosure proceedings, the granting of a deed in lieu of foreclosure, or through any other means, Lender or any such other party (the "Successor Tenant") shall have the right to assume Tenant's interest in the Lease without Landlord's consent, provided that notice of any such assumption is provided to the Landlord prior to assumption. Any subsequent transfer of the interest in the Lease shall be subject to approval by Landlord's City Council. Upon and after such acquisition by Successor Tenant the Lease shall continue in full force and effect as if no default by Tenant under the Lease had occurred, and Landlord hereby waives any non-curable defaults of Tenant as against the Successor Tenant. Landlord agrees that in the event Successor Tenant proposes to transfer the Lease to a third party (the "Third Party Transferee") then Landlord shall use best efforts to obtain the approval of City Council of such Third Party Transferee at the next scheduled City Council meeting after Successor Tenant makes the request for such approval. (b) So long as any Successor Tenant is the owner of the Leasehold Estate, Landlord shall look solely to the interest of such Successor Tenant in the Property and the improvements located thereon in the event of the breach or default by such Successor Tenant under the terms of the Lease and Landlord hereby agrees that any judgment or decree to enforce the obligations of such Successor Tenant shall be enforceable only to the extent of the interest of such Successor Tenant in the Property and such improvements. 14. As long as Lender holds any mortgages or deeds of trust on the Leasehold Estate: (a) Lender may, but will not be obligated to, cure any default by the Tenant in accordance with Section 9.4 of the Lease; provided, however, if any non-monetary default reasonably cannot be cured by Lender without Lender obtaining possession of the Property, the thirty (30) day cure period shall not commence until Lender obtains possession of the Property, as long as all rent payments are made and all other defaults which reasonably can be cured by Lender without Lender obtaining possession of the Property are so cured, and provided that Lender commences to exercise any rights to obtain possession or to effect foreclosure, and diligently pursues the exercise of such rights thereafter. GROUND LESSOR'S ESTOPPEL CERTIFICATE AND CONSENT-Page 4 555-356Bumett Lofts(Catalyst)-Fort Worth,TX (b) Notwithstanding anything in the Lease to the contrary, if any default by Tenant is of such a nature that it reasonably cannot be cured by Lender, or reasonably cannot be cured by Lender without Lender obtaining possession of the Property, Landlord will not terminate the Lease as long as all rent payments are made and all other defaults which reasonably can be cured by Lender without Lender obtaining possession of the Property are so cured. Upon Lender obtaining possession of the Property, any such non-curable defaults of Tenant shall be waived by Landlord. (c) Landlord acknowledges and agrees that Lender may exercise any and all rights of Tenant under the Lease and all rights of Tenant under the Security Instrument and other loan documents evidencing the Loan that are related to the Lease, including, but not limited to, any purchase options to which the Tenant is now or hereafter entitled to under the Lease, and any options to extend the term of the Lease. (d) Landlord will enter into a New Ground Lease as provided in Section 9.5 of the Lease and the Lender may, but shall not be obligated to, cure any defaults of Tenant prior to executing the New Ground Lease which are capable of being cured, however, Landlord shall waive any defaults which are personal to Tenant and cannot be cured by Lender(for example, Tenant's bankruptcy). (e) Within ten (10) days after request by Lender, from time to time made, Landlord will execute and deliver to Lender or to such other person or entity as may be specified by Lender an estoppel certificate containing such information concerning the Lease as Lender may reasonably request. 15. Notwithstanding anything herein or in the Lease to the contrary, Lender agrees that the Security Instrument is, and shall at all times remain, subject and subordinate in all respects to the terms, covenants, conditions, operations and effects of the Parking Easement, as defined in the Lease, whether or not the Security Instrument is recorded first in time. The parties agree to execute a document, in recordable form, to be recorded in the official Public Records of Tarrant County that reflects the Security Instrument is subordinate to the Parking Easement. 16. In the event that Tenant becomes the subject of a case under the U.S. Bankruptcy Code (or any other law providing similar relief), Landlord shall give prompt notice to Lender of any notice it receives of a request by Tenant or any trustee of Tenant for authority to reject the Lease. Landlord acknowledges and agrees that any such rejection of the Lease shall have no effect upon the continued existence of the Leasehold Estate or the Security Instrument. 17. This Estoppel may be executed in any number of counterparts, each of which will for all purposes be deemed to be an original, and all of which are identical. 18. This certification shall inure to the benefit of Lender, and its participants, and their respective successors and assigns, and all parties claiming by, through or under them, including any successor holder of the Loan now or hereafter held by Lender encumbering the Leasehold Estate, and a copy of this Estoppel may be delivered to any such party. GROUND LESSOR'S ESTOPPEL CERTIFICATE AND CONSENT-Page 5 555-356Bumett Lofts(Catalyst)-Fort Worth,TX [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS] GROUND LESSOR'S ESTOPPEL CERTIFICATE AND CONSENT-Page 6 555-356Bumett Lofts(Catalyst)-Fort Worth,TX Dated to be effective as of the date set forth in the first paragraph hereof. LANDLORD: CITY OF FORT WORTH, a Texas municipal corporation By: Name: Jesus Chapa Title: Assistant City Manager APPROVED AS TO FORM AND LEGALITY: Name: Vicki Smith Ganske Title: Assistant City Attorney ATTESTED BY: of ..�o �.. •:�� By: VName: Mary ayser �Ir Title: City Secretary Date: /V GROUND LESSOR'S ESTOPPEL CERTIFICATE AND CONSENT- Signature Page FOFFICIAL RECORD 555-356Bumett Lofts(Catalyst)-Fort Worth,TX RETARYRTH'TX EXHIBIT A LEGAL DESCRIPTION OF PROPERTY COVERED BY LEASE Being Lot 1 R and 3R, Block 2, Lot 1 R, Block 3 and Lot 1 R, Block 4 of Nance's Addition, an addition to the City of Fort Worth, Tarrant County, Texas, recorded under Clerk's File No. D219059650, Real Property Records Tarrant County, Texas. EXHIBIT A, Legal Description of Property Covered by Lease-Solo Page 555-356Bumett Lofts(Catalyst)-Fort Worth,TX EXHIBIT B DESCRIPTION AND COPIES OF LEASE,AMENDMENTS, ASSIGNMENTS, EASEMENTS, NONDISTURBANCE AGREEMENTS AND SUBLEASES 1. Ground Lease with Option to Purchase by and between BURNETT LOFTS, LLC, a Texas limited liability company, and the CITY OF FORT WORTH, a Texas municipal corporation, dated as of( 1. 2. Memorandum of Lease dated �. 4842-5961-2823v.7 555-356 EXHIBIT B,Description and Copies of Lease,Amendments,Assignments, Nondisturbance Agreements and Subleases—Cover Page 555-356Bumett Lofts(Catalyst)-Fort Worth,TX