The URL can be used to link to this page

Home My WebLink AboutContract 60639CITY SECRETARY l;O(o ~s GONTRACTNO . V . SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT This Subordination, Non-Disturbance and Attornment Agreement ("Agreement") is made on this 2nd day of November, 2023, by and between SV VEGAS TRAIL, LLC, a Texas limited liability company with an address of 1901 N. Akard Street, Dallas, Texas 75201 ("Landlord"); CITY OF FORT WORTH, a home rule mun icipal corporation with an address of 500 W. 3rd St., Fort Worth, Texas 76102 ("Tenant"); and CAPTEX BANK, a Texas banking association, with an address of 106 Hamilton, P.O. Box 4, Trenton, Texas 75490 ("Bank"). RECITALS: A. By that certain Shopping Center Lease ("Lease") dated on or about January 13, 2023, Landlord leased to Tenant certain real property located in the town of Fort Worth, Tarrant County, Texas in the Vegas Trail Center Shopping Center, which is part of the real property described on Exhibit A attached hereto (the "Leased Premises"). B. Bank is or will be the beneficiary of a certain Deed ofTrust dated on or about August 29, 2023, executed by Landlord, as Grantor, in favor of Bank, as beneficiary, that will be recorded i n the Tarrant County Real Property Records (the "Deed of Trust") (the Deed of Trust, the note secured thereby, and the other documents associated therewith will be referred to collectively as the "Loan Documents"). AGREEMENTS: NOW, THEREFORE, in consideration of the foregoing premises and other good and valuable consideration , the receipt and sufficiency of which is acknowledged, Landlord, Tenant, and Bank agree as follows : 1. Tenant agrees that the Lease is and shall be subject and subordinate in all respects to the Loan, Loan Documents and any renewal, modification, replacement or extension of the same. 2. In the event of a foreclosure under the Loan Documents or a conveyance in lieu of foreclosure, which foreclosure or conveyance occurs prior to the expiration date of the Lease, including all extensions and renewals of same provided for thereunder, and provided that as of the date Bank or its successors or assigns commence such a foreclosure action or accepts such a conveyance in lieu thereof, and at all times thereafter, Tenant is in compliance with the terms and provisions of this Agreement and is not in default in the performance or observation of any of the terms, covenants, provisions, representations, warranties, agreements, cond itions and obligations contained in the Lease to be performed or observed by Tenant thereunder, Bank does hereby agree (subject to the performance by Tenant of all of the terms, covenants and conditions of the Lease on the part of Tenant to be observed or performed) as follows: a. No default under the Loan Documents, as modified, extended, or increased, and no proceeding to foreclose the same, and no conveyance in lieu of foreclosure thereof, will disturb Tenant's possession of the Leased Premises and the related improvements under said Lease, and the Lease w i ll not be affected or cut off thereby, except to the extent prov ided herein ; and b. The Lease shall continue in full force and effect, and Bank or its successors or assigns, or any other party acquiring the Leased Premises and the related improvements upon a SUBORDINATION , NON-DISTURBANCE AND ATTORNMENT AGREEMENT CITY OF FORT WORTH 4888-2614-4128v.2 OFF!CiAl RECORD CITY SEC RETARY T. WORT H, TX Pag e 1 foreclosure sale or a conveyance in lieu of foreclosure (the "foreclosure purchaser"), as the case may be, shall automatically recognize the Lease and Tenant 's rights thereunder and will thereby establish direct privity of estate and contract as between Bank, its successors and assigns, or the foreclosure purchaser, as the case may be, and Tenant, with the same force and effect as if the Lease were originally made directly from Bank, its successors or assigns, or the foreclosure purchaser, in favor of Tenant. c. Notwithstanding the foregoing provisions of Section 2 hereof, in the event of any foreclosure under the Loan Documents or conveyance in lieu of foreclosure, Bank and Tenant agree that neither Bank, its successors or assigns, nor the foreclosure purchaser, shall in any way or to any extent: (i) be bound by any prepayment of rent for a period greater than one (1) month, unless such prepayment shall have been expressly approved in writing by Bank or its successors or assigns; (ii) be obligated or liable to Tenant, its mortgagees, contractors , sub- contractors or suppliers with respect to the construction and completion of any improvements for Tenant's use, enjoyment or occupancy of the Leased Premises and the related improvements, equipment, furniture and fixtures; or (iii) be liable for any other expenses or obligations, including attorney's fees, except those expenses or obligations arising out of the Lease and expressly assumed by Bank. 3. Without limiting the foregoing, the parties further agree as follows: a. That in the event of a foreclosure under the Loan Documents or of a conveyance in lieu of foreclosure, which foreclosure or conveyance occurs prior to the expiration date of the Lease, including any extensions and renewals of the Lease, Tenant hereby covenants and agrees to make full and complete attornment to Bank, its successors or assigns, or to the foreclosure purchaser, as the case may be, for the balance of the term of the Lease, including any extensions and renewals thereof, upon the same terms, covenants and conditions as therein provided, so as to establish direct privity of estate and contract as between Bank, its successors or assigns, or the foreclosure purchaser, as the case may be, and Tenant , with the same force and effect as though the Lease was originally made directly from Bank, its successors or assigns, or the foreclosure purchaser, as the case may be, to Tenant, and Tenant will thereafter make all rent payments and all other payments under the Lease directly to Bank, its successors or assigns, or to the foreclosure purchaser, as the case may be. b. Landlord and/or Tenant shall deliver to Bank or its successors or assigns a copy of any notice or statement given by one party to the other under the Lease at the same time such notice or statement is delivered to the other party pursuant to the terms of the Lease. c. Notwithstanding anything to the contrary in the Lease, Landlord shall not be in default under the provisions of said Lease until written notice specifying such default is mailed to Bank . Tenant agrees that Bank shall have the option to cure such default on behalf of Landlord within thirty (30) calendar days after receipt of such notice . Tenant further agrees not to invoke any of its remedies, either expressed or implied, under the Lease (except in the case of emergency repairs) until the said thirty (30) day period has elapsed, and during any period that Bank has exercised its option to cure and is proceeding to cure such default with due diligence or is taking steps with due diligence to cure such default. SUBORDINATION, NON -DISTURBANCE AND ATTORNMEN T AGREEMENT CITY OF FORT WORTH 4888-2614-4128v.2 Pag e 2 d. Tenant will in no event make prepayment of rent for a period in excess of one (1) month. e. Tenant shall not be entitled to sublease the Leased Premises or assign the Lease without the prior written consent of Bank . 4. Nothing contained in this Agreement shall in any way impair or affect the liens created by the Loan Documents. 5. No modifications, amendments, waiver or release of any provision of this Agreement or any right, obligation, claim or cause of action arising hereunder shall be valid or binding for any purpose whatsoever unless in writing and duly executed by the party against whom the same is sought to be asserted. All notices, demands or other communications to be given under this Agreement shall be in writing and shall be given either by personal delivery or by certified mail or registered mail, postage prepaid, return receipt requested, addressed to the parties hereto as follows: If to Landlord: If to Tenant: If to Bank: With a copy to: SV Vegas Trail, LLC 1901 N. Akard Street Dallas, TX 75201 Attn: Nathan P. Nash City of Fort Worth 500 w. 3rd Street Fort Worth, TX 76102 Attn: Marilyn Marvin Captex Bank 106 Hamilton, P.O. Box 4 Trenton, TX 75490 ATTN: Cade Carpenter Leggett Clemons Crandall, PLLC 5700 Granite Parkway, Suite 950 Plano, TX 75024 ATTN: Tiffany L. Martin If notice is given by certified mail or registered mail and the signature of the representative of the receiving party is not dated, it shall be deemed to have been received two (2) days after it is deposited in the United States mail. Any party may by like notice designate different addresses to which such notices shall be sent. 6. This Agreement shall inure to the benefit of the parties hereto and their respective successors and assigns. 7. Notwithstanding any provision herein, prior to the repayment in full of the indebtedness secured by the Loan Documents, this Agreement may not be altered, amended or terminated without the prior written consent of Landlord, Tenant, and Bank. 8. The parties agree that this Agreement shall be construed in accordance with and governed by the laws of the State of Texas , and venue for any legal action to enforce the terms of or arising out of this Agreement shall be filed in the appropriate state court in Wichita County, Texas. EXECUTED TO BE EFFECTIVE as of the date first written above. SUBORDINATION , NON-DISTURBANCE AND ATTORNMENT AGREEMENT CITY OF FORT WORTH 4888-2614-4128v.2 Pag e 3 [SIGNATURE PAGE FOLLOWS] SUBORDINATION , NON-DISTURBANCE AND ATTORNMENT AGREEMENT CITY OF FORT WORTH 4888-2614-4128v.2 Page 4 TENANT: CITY OF FORT WORTH, a Home Rule Municipal Corporation Dan {!urgh Assistant City Manager THE STATE OF TEXAS § § COUNTYOFI A.r:ttuJ± § 1, 'I). T~i '?W\lffient ~ ~·now~ before me o~ber /.,!F , 2023, by J I.).ll rq h ~ti:_ , ~ 01 ~e(of CITY OF FORT WORTH, a Home Rule Municipal Corporation, on behalf of said entity. , A_~ Appr~ # AIL ~~;:;> Assistant City Attorney Attest: 2 ,L{_, City Secretary SUBORDINATION , NON-DISTURBANCE AND ATTORNMENT AGREEMENT CITY OF FORT WORTH 4888-2614-4128v.2 ,,,-:;,_V~i,,, EVONIA DANIELS ' ......... ~ ~ f f:-:..A,;·{~% Notary Public, State of Texas ~..,.-.. ~..-~~Comm .Expires 07-13-2025 ~,,:f~~:1,-::-Notary ID 126950030 I I OFFICIAL RECORD CITY SECRETARY I Ft WORTH, TX Page 5 THE STATE OF TEXAS § COUNTY OF ~ : LANDLORD: SV VEGAS TRAIL, LLC, a Texas limited liability company By: STEEPLECHASE INTERESTS, LLC, a Texas limited liability company its Managing Member By : By : her M. Landers, Manager This instrument was acknowledged before me on • .t?~~ 2023, by Nathan P. Nash, Manager of STEEPLECHASE INTERESTS, LLC, a Texas lim ited liability company, the Managing Member of SV VEGAS TRAIL, LLC, a Texas limited liability company, on behalf of said entities. THE STATE OF TEXAS COUNTY OF If~ I § § § This instrument was acknowledged before me on ~~£ 2023, by Christopher M . Landers, Manager of STEEPLECHASE INTERESTS, LLC, a Texas limited liability company, the Managing Member of SV VEGAS TRAIL, LLC, a Texas limited liability company, on behalf of said entities. SUBORDINATION , NON-DISTURBANCE AND ATTORNMENT AGREEMENT CITY OF FORT WORTH 4888-2614-4128v .2 OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX I Pag e 6 THE STATE OF TEXAS COUNTY OF 7tA.J'f'tL() +- § § § CAPTEX BANK, a Texas banking association By: Cade Carpenter, Senior Vice President This instrument was acknowledged before me on Nwc.fl\l,:,1 ~ 2023, by Cade Carpenter, Senior Vice President of CAPTEX BANK, a Texas banking association, on behalf of said banking entity. ;&J ~ Notary Public,~exas SUBORDINATION, NON-DISTURBANCE AND ATTORNMEN T AGREEMENT CITY OF FORT WORTH 4888-2614-4128v.2 Page 7 Property Address: EXHIBIT A Property Description 8600, 8650, and 8744 Camp Bowie West Boulevard, Fort Worth, Tarrant County, Texas 76116 SUBORDINATION , NON -DISTURBANCE AND ATTORNMENT AGREEMENT CITY OF FORT WORTH Page 8 Exhibit A 4888-2614-4128v.2