HomeMy WebLinkAboutContract 53774-CD1�� ��������
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When R�corded, Return To: Pros�
Banic �
P.O. Box 1600
San An#onio, Texas 78296
Laan Documentation Department, SO�'-3
Ref: Loan No. 6847206-9001
NOTICE OF CONFYDEN'I'IALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY
REMOVE OIt �TRIKE ANY OR ALL OF THE TOLLOWING INFORNIATZON FROM A1VY
YNSTRUMEN'I' THAT TRAN�FERS AN T1�TTEREST IN REAI, PROPERTY BE�+'QRE IT IS T� ILED
FOI2 RECORD IIV� THE PUBLIC 12ECORDS: YOUR SOCZAL SECURITY NUMSER OR YOT]R
DRIVER'S LICEI��E NUMBER. �
CONSENT TO I,EA�EHOLD DEED OF TRU�T
�'ORT WORTH NIEACHAM INTERNATIONAL AiRPORT
LEA�E AGREEMENTS
LEASE SITE 42N
This CONSENT 'I'O �.EASEHOLD DEED OF TRUST ("Agxeemeni"} is made an�d en�ered
into by and beiween the CITY OF FORT WORTH ("Lessor"), a home ru�e �unicipal
corporation or�anized under the laws of the Sta�e of Texas; AREA �1 HANGAR LLC
("Lessee"}, � Texas limi#ed iia�ility compa�y, and FROST BA1�K ("Lender"), a Te�as �tate
bank.
The following introductory prov�sians are true and correct and form the basis of t�his Consent:
A. Lessor and Le�see have ent�red into a Graund Lease Agree�nent da#ed ApriI 2, 202a,
identified as City Secretary Coniract No. �3�"�4 (the "Lease") for the space I�own as lease
site 42�N ("Leased Prerrfi,�es") at Fork Warth Meacham International Airport (��Airport").
A true and carrect copy of the Lease is attacheci hereto as Exhibit "A".
B. On J�anuary 22, 2p21 Lessor and Lessee entered into CSC 53774-AX, io exiend the
constracfiion cozr�mencement date ofihe Man�atary Improvements an additional �20 days.
Consent to Leasehold DeecE of
Trust in favor of Frost Bank
Page 1 of 10
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�ITY 5��R�i�RY
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C. �n Marc� 9, 2021, City Council authorized the executian of this Agreeme�xt through M&C
21-0182 in order to faci�ita#e nevv hangaar construction for Lease Site 42N witn Area 51
Hangar, LLC and Frost Bank.
D. Thrrough �he drafting process for this Agreement, a discrepancy an the o��ginal survey
included on the Lease vvas revealed that reflected a small amount of square footage
consisiing of a concrete pad was included �vithin ihe Lease that b�longed ta a separate
leasehald known as Lease Site 43N.
E. 4n April 6, 2021, Lessor approached its City Council for approval, to authorize the
execution of a second amendment to C�C 53774, vvhich reduced the Ieased ground space
from 79,875 square feet to 79,181 sq�are feet to correct xhe issue, whrch was approved by
City Cauncil ihrough M&C 21-0251 and executed by the Lessor and Lessee on Apri� 15,
2021 (CSC 53774-A2}.
F. On or about ApriI 28, 2021, a ihird amendment to CSC 53774, was executed by the Lessor
and Lessee vvhich amenc�ed section 4. i of the Lease concerning ownership of the Mandatory
Zrn�rovements (as defined in the Lease} to include language thai wa� unintentionalIy left oui
af the Lease when the Lease was origina�ly executed.
G. Novv, Lessee and the Lender desire Lessor to conseni to the execution by Lessee af a
LeasehoId De�d of Trust, Security Agreement — Financing Statement ("Deed of Trusi") on
fhe Leasec� Premises 2n favor of�he Lender.
NOW, THEREF()l�E, Lessor, Lessee and the Lender hereby agree as foIIows:
1. The statements set forEh in the recita�s above are true and correci and fonn the basis upon
which Lessor, Lessee and the Lender have entered into this Agreement. The Lease wili be
a public docuinent on file in Lessar's City Secretary's Office and is incarporated herein by
reference %r all pur�oses.
�. Lessar hereby consents to the execution and delivery by Lessee to the Lender of the Decd
of Trusi and agrees that Lessee's execution of the Deed of Trust does not constitute a
defauIt under the Lease. Lessor does not adapt, ratify or approve of any of the particular
� provisions of the Deed af Tzzast and does not grant any right, privilege or use to Lessee,
Lender, or any successar in interest pursuant to the Deed af Trust that is different from or
more exiensive than any righf, privilege or use grantec� to Lessee under the L�ase.
Noi�vithsfiarzd.ing anything con#rary in the Deec! of Trust, Lessee and ti�e Lender
acknowlec�ge, und.erstand and agree that Lessee and the Lender do not have any right �o
eonvay any interests in ihe Leased Premises greater ihan those granted speci�cally by the
Lease. Less�e and the Lender further acicnowledge, understand and agre� that Lessor retaiz�s
iha mineral interest and the right io deveIop such interest. In the event o� any conflict
between the Deed of Trust and the Lease, the Lease shal2 controi in all respects as ta Lessor
and as to Lessee's and the Lender's obligations to Lessor established by the Lease andlor
this Agreement In the event of any conflict between the Deed of Trust and this Agreement,
Consent to Leasehold ]7eed of
"d7ust in favor of i�rost Ban[c
Page 2 of 1 D
this Agreerrrent shali control. In the event of any conflict betr�veen this A�eement and the
Lease, ihe Lease sha�l confiral.
3. In the event t�at Lessor is required by the Lease to provide any kind of written notice to
Lessee wzth regard to the Leased Prernises, incIuding notice of breach or default by Lessee,
Lessor shall also provide a copy of such written notic� to the Lender. Lessar agrees thai (i)
the �,ender rr�ay perform any of t�e obligatians or requirements irrzposed on Le�see by the
Lease in arder to avoid a bxeach or defauii under the Lease by Lessee and (ii) Lessor will
accept ihe Lender's per%rmance tne same as if Lessee had performed such obligations or
requ�rements.
4. (a} Lessor agrees and covenants that it wzl� not e�ercise az�y rights it may have under the
Lease �a cancel or terminate the Leas� or ta force surrender of all or part af the Leased
Premises uniess it first has provided the Lender with writ�en r�otice of it� infent to exerczse
any such righl. The Lend�r sha1� have ten (10) calendar days frorn the date it receives such
notice to cure any monetary default u�der the Lease and thiri� (30) calendar days froin the
date it receives such notice to cure any other default under the Lease to Lessor's zeasonable
satisfaction in order to avoid such canceltation, terminaiion oz- surrender; provided,
hnwever, that if the Len�.er, in good faith and afier diIigent and coniinuous efforts to remedy
any non-monetary c�efault under the Lease, cannot cure such ciefauIt withir� thirry (30}
calendar days, it sha11 notify Lessor in wriiing and Lessor and the Lender shail negotiate in
good Faith a reasonable amouni of additzonal time to cure such deiauZt; provic�ed, however,
Lender shai! have no i�ss than three {3) months to cure any defa�Ii related to Less�e's failUre
to cozzstruct the Mandaiory Improverzients (as defned in the Lea�e).
{b) Tn the event Lessee or any asszgnee af Lessee sha11 rejeci fine Lease in any bankruptc�
or other insol�vency proceeding involving Lessae, or any such assignee, a� the debtar, then
the Lease, at the apiion of Lender, shall continue zn fulI iarce and effect in accordance r�vith
th� terrns thereof as a direct �ease agreement between� Lessar, as landlord, and Lender, as
Lessee, �ubjeci to Lender canfirining the Leased Pretnises will be used for aviafion-related
purposes. Lender shalI have thit-ty (30) days after Lessor notifzes Lender of said rejeciion of
t�e Lease to notzfy Lessor that it is exercising its option to cotatinu� ihe Lease as a direct
Lease with Lessor, and upon such notification, Lessor shali not affect or disturb the
passession of fihe Lea�ed Preinises by Lender, provided ihafi Lender remedy or cure any
Lease default b�+ Lessee as pravided herein. This provision shaii app�y z-egardIess of whether
the Leas� is rejecied by court order or deeined rejec�ed as a matter of 1aw.
�. Les�ee agrees that it vvilI not requesi or consent to any future moaifications, amendn�ents or
assignmenis oi the Lease without first receiving the Lender's written consent ihereto and
providing a copy of such written consent to Lessar. Lessee undersfiands and agrees tk�at any
such consent granted by Lessor withaut Lender's advance wriiten consent sha11 be void and
specificalIy releases, halds hartnless and agrees to indemnify Lessor for any aamages tI-�at
rnay arise as a result of any such cansent.
Consent to Leasehoid Deed of
Trusi in favar ofFrost Bank
Page 3 of 10
G. As 2ong as such does not conflict wiih Lessor's rights under ihe Lease, Lessor consents to
the exercise by the Lender of any and a�l rights and remedies permitted under the Deed af
Trust (including jUdicial andlor non-judicial foreclosure on, or conveyance by deed-in-lzeu
o� forectosure of, the Leased Premises), and to the exercisa of such additional legai ar�d
equitable rights and reznedies as may be avaitable ta L�nder if an Event of Default occurs
under the Deed of Trust. l�n the eveni ihat Lender undertakes to enforce zts righis to any
collateral granted by the Deed of Trust or� account of deiault by Lessee under the Deed o�
Trust, Lessor •vvill cooperaie wiih the Lender in its efforts to assemble and/or remove an�
personal property of Lessee on the Premises. The Lender hereby agrees to repair any
damages at or ta the Airport, including the L�ased Premises, caused by ar incident to such
removaI.
9. As a condition precedent ta the effectiveness of ik�is Agreement, Lessee agrees and
cov�nants that it wil7 endors� alI insurance �olicies required by ihe Lease to name bot�
Lessor and the Lender as additionaI insureds and to cover alt pub�ic ris�Cs related to �he
Ieasing, use, occupancy, maintenance, existence or Iocaiion of the Leased �'remises.
Notwithstanding anyihing to the contrary in the Deed of Trust, the Lender hereby agrees
and covenants that any a�zd all proceeds payab�e under the terms o� such insurance policies
shaIl �rst be applied to caver the replacetnent af aIl faciIities and ixz�provernents on the
Leased Prernises and to satisfy fu11y the terms and conditions of the Lease. Payment of
such proceeds shal� apply secondarily io secure any af Lessee's indebtedness to the Lender.
S. Subject to Sections 4 arid 6 of this Agreement, Lesso� may take al� action available to it
under the Lease, at law or in equiiy in order to prateci its interests, including, but not Iimited
to, cance�lation of Lessee's interest as provided by the Lease and in accordanca with fhis
Agreezneni.
9. The Lender agrees tl�at it promptly will notify Lessor in writing when the Lender has
released its rights under the Deed of Trust. This Agreea-rzeni wiIl automatically ierminate
on th� earlier of (i) ihe date as of which the Lender releases sucIa rzghts or (ii) the date upon
which the Lease expires or is tertninatec�.
�fl. Iithe Lezader forecloses on the Leased Premises as a result of exercising its rights under the
Deed of Trusfi, the Lender may become the owner of al� of Lessee's rights unaer the Lease,
without .Lessor's further aciion or consent. However, if the Lender desires to sell or
otherwise transfez its leasehold interest zn the Leased Premises to a il�ird party (either at or
after foreclosure), the Lender must obtain t1�e Lessor's written consent to and approval of
the purchaser. Such consent a.nd approval will not be unreasonab�y w�thheId, cor�ditioned
or delayed. Nothing in this Agreemeni is intended to prohibit the Lender iro�n assigning ihe
liens and security interests created by the Deed of Trust to another fznancial instiiutian wit1�
Lessor's prior written consent, whick� such consent will not be unteasonabIy withheId,
conditioned, or delayed.
Consentto Leasehald Deed of
Trust in favor of Frost Bank
Page4ofI0
11. Notzces ta the Lender required pursuant to th� provisians of this Agreement sk�all be
conclusiveIy determined to have be�n delivered when (i) hand-deIivered to the Lender, its
agenis, emplayees, servants or representaiives, or (ii) deposited in the United States Mail,
certified, re�urn receipt requested, addressed as folia�rs: �
Frost Banlc with a capy to
640 Taylar Street
Fort Wo�h, Texas 76102
Attn: Frank Shiels
Frost Bank
P.O. Box Ib00
San Antanio, Texas 78296
Attn: General Counsel
Loan No. 6847206-9401
1�. The parties hereto understand and agree that npon expiratian or termination of the Lease,
all permat�eni siructures, improvements and fixtures on tYte Leased Prernises, and any iter�s
permanently attached to any such struciure, fi�ture ar improvement, wil� become the sole
property o� Lessor, free and clear of aIl liens, including the Deed of Trust. Improvements of
a non-perfnanent nature, aIl trade fixtures, machir�ery, furnishings and oti�er non-permanent
items may specifcaIly be removed from the Leased Premises in accordance wit� the Lease.
Z�x tl�e event �hat the Lease expires or is terminated, Lessee and the Lender covenant and
agree that nothing l�erein shall obIigate Lessor to assume in any way Lessee's indabiedness
to the Lender.
13. E�to�abel.
a. The docutxaeni referred to abave as comprising af the Lease rs ihe only documeni
which constitutes the Lease, and the Lease is in full force and effect and has not been
rnodified, changed, altered or amended in an� respect.
b. The Lease is the only agreement beiween Lessor and Lessee relating to the Lease at
Fort Wortn Meacham Interf�ational Airport {other than the Memorandurm of Lease
which Lessor and Lessee agree to execute on ihe dat� hereo�} and, together wifih the
minimum staz�dards and other general regulations that naay appIy to tl�e lessee under
the Lease, contazns the en�ire agree�x�.ent and undersfiandzng af Lessor and Le,�see
with respect tl�ereio. Lessee is the current halder of �he leasehold interest rn the
premises under tkze Lease.
e. To the best knowIedge of the Lessor, no monetary or non-moneiary defauIt by
Lessor or Lessee presently exists under the Lease and no siate of facts exist which
vaif.h the passage of time or giving of notice, or both, would constitute a clefault by
Lessor under the L�ase.
d. Lessor has not talcen, and daes not currentiy anticipate taking any action to, or that
wauld, terminate the Lease.
Consent to Leasehold Deed of
Trust in favor o€Frost Bank
Page 5 of IO
e. Pursuant io the Lease, the Initial Term o f the Lease expires on iVlarch 31, 20�0 at
11:59 PM. Lessee has a right to extend the term of the Lease for t�vo (2) additional
successive terms of five (�) years each (each, a"R.ene�rval Term").
14. Tha pro�isions of this Agreemeni shaIl be self-aperative and eifective wiihout the execution
of any further instruments on the part of any party hereto.
1�. Lessor unaerstands and agrees thafi this Agreement is for the benefit of the Lender, that the
Lender relied upon thzs Consent to Leasehold De�d of Tri�st and EstoppeI in rr�aking its
decision to rna�Ce the Loan to Lessee and �hat the Lender would not rnake t�e Loan abseni
Lessor's execution and cleIivery of this Agreement. ,
1G. This Agreemeni may not be withdrawn, amended or mad.ified �xcept by a written a�eement
execuied by the pa��ies hereto and approved by Lessor`s City CounciI. Lessee and the
Lender covenant and agree that they �vi�l not amer�d fihe Deed of Trust, or assign any rights
and/or obligations thereunder, without the prior written consent of Lessar; provzded,
however, Lender may renew and extend the �ien of the Deed of Trust, or assign the Deed of
Trust and the ol�ligations secured thereunde�• to an affiliate of Lender, in either case, without
Lessar's consent, but Lender mus# notify Lessor of such ass�gnment. This Agreement shaIl
nat be affected irz any way by, and shaZl remain in full force and effect notwithstanding, any
amendment or madiiication {incIuding, wiihout Iimitation, any renewaI, extension, or
increase in amount) of the Loan and/or ihe documents e�ecuted in connection with the Loan.
1'�. This Agreement sha11 b� construed in accordance wztn the laws af the State of Texas. Venue
for any action arising under the provisians of tI�is Agreement shal� lie in staie courts located
in Tarrani County, Texas oz- in the United States District Court for �he Narthern District of
Texas, Fort Worth Division.
18. Tnis vvriifien ins�rUment, i�lcluding any documents attached h�refio ancUor incorporated
herei� by re%rence, contair�s the en�:ire� understanding and agreem�nt between Lessor,
Lessee and the Lender as io the matiers contai�ned herein, �1ny prior or contemporaneo�as
oral or Writt�n agreement concerntng such rnatt�r.s is hereby declared n�.ill a�td void to the
extent in conflict with tk�is Agree�nent.
19. The person signing this Agreenlent hereby warranis ihat he/she has the Iegal authority to
execute this Agreerr�ent ori behalf of the resp�ctive party, and that sucl� binding authority
has been granted by proper order, resoiution, ordznance or otk�er authorization o� the entii�y.
The other party is fuIly entiiled to rely on this warranty and representation in entering fnto
this Agreernent.
[Signatu�e Pages Follow]
Consentto Leasehold pced of
Trust itt favor ofFrost Bar�k
Page 6 of 1 D
IN WTT1oTESS 'WHEREOF, the parties hereto have execUted this Agreement in multiple� on this
the �� day of May 202 �.
LES�OR:
CTTY OF FORT W4RTH:
By: ���,� �
Fernando Costa
Assistant City Manager
� r
D��O: J���������� . ..,...—
STATE OF TEXA�
COUNTY OF TARRANT
§
BEFORE ME, the undersigned authoriiy, a Notary Public in and for the State of Texas, on
this day personally appeared Fer�ando Costa, known to rne to be the person whose name is
subscribed to the foregoing insirUmei�t, and acknowledged to me tlaat the same was fihe act of ihe
City of Fort Wowth and that he executed the same as the act of the City a� Fort Wor�h for the
purposes ar�d consideration therein �xpressed, and in the capacity therein stated.
GIVEN ITNDER MY HAND AND SEAL �F OFFICE, this ��c ay of May 202I .
,.�¢5p'��,, SELEP!A ALA
°�A �e�'s Notary Pubfic, State ot Texas ; a i
;���}P� Comm. Expires 03-31 •2Q24 + � •`�`�..��� -�•"'�—
�9 •.... � ` a
�•;;�;, �.� �vazsry ID �32a2z�28 otary PubIic zn and for the State of Texas
APPROVED AS TO FO�
AND LEGAL��Y: �
By. :�,� i _� - =-,-' '�`— --�
Thotx�as Royce Hansen
Assistant City Attorney
�&c: 2�-az�z
Date Approved: 3/9/2021
�'orm 1295: �021-7� 5496
Consent to Leasehofd Deed of
Trust in favor ofFrost Bank
Page 7 of 10
ATTEST: -,
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Contract Compliance Manager:
By signing, I ac i�at I am ihe person responsible �or the monitoring a�:d administratian
�ri�ntr n udin� ensur� all performance and reparting requirements.
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Re�'roperty 1V.�a�rager
LESSEE:
AREA 51 HANGAR LLC,
a Texas limited liability company
$Y���Y _ � � � -
Kenneth A. Broadze, Member
Date:
STATE OF TEXAS
COUNTY OF TARIZANT
BEFORE ME, the undersigned authority, a Notary Public in and £or the State of Texas, on
this day personally appeared �enne�h A. Broadi� known to me to be tlze parson whose name is
subscribed to fihe �oregoing instrument, and acknowledged to me tI�at fihe same was the act of Area
51 Hangar LLC and that he executed the sa�ne as the act of A�ea gl iC�a�gar I.LC for the purposes
and consideration therein expressed, and in the capacity ther�in.stated.
r
GIVEN �TNDER MY HAND AND SEAL OF OF�rCE,���. • J6 �y c�"1a�y 2p2i.
�
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Noiary Public in and r ihe ate of Texas
��,a��vP�B.� G/�R!"N R. SHEPL�Y
y�°r' s��� �lotary Public. S4aYe �f i'exas
�,��,���� Comm. Exp9r�s �6-1]'-202a�
`'�'.i°�,�'' iVot�Cy IQ 5154T3�
Cansent to Leasehold Deed of
Trusi in favor ofFrost Ba�k
Page8of10
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(�FFI��A� R�����<. ;
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LENDER:
A'I'TEST:
FROST SANK,
a Texas sta ank
�
By: By.
rank h'els
Senior Vice President
Date: � �
STATE OF TEXA�
C�UNTY OF TARRANT
BEFORE ME, th� �zndersigned at�thority, a Notary Public in and for the State of Texas, on
this day personalIy appeared Fr�nk Shiels knovvn to me io be the person whose name is subscribed
to the foregaing instrument, and acknavvledged to me that the saz�e was the act of Frost Bank and
tha� he executed the sazne as the act of Frost Bank �or the purposes and considerafiian therein
expressed, and in the capacity therein stated.
GIVEN UNDER MY HAND �-1,ND SEAL OF OFFICE, fihis � g�+ day of May 2021.
'f�Y 4 ��.: .�^ ' :ti ti +.� 4
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Consentto Leasehold lleed of
Trust in favor of Frost Bank
Page 9 of ]fl
Nviary Public in and for ihe State of Texas
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ExxrBIT ��A>,
7"he Lease
See Attached.
[NOTE: Ground Lease intentionally re��oved in recorded uersxon of this Agreemenfi]
Consent to Leaseiiold Deed of
Trust in favor of Frosi Bank
Page 10 of 10