HomeMy WebLinkAboutContract 42806-CD2CSC No. 42806-CD2
CONSENT TO LEASEHOLD DEED OF TRUST
FORT WORTH SPINKS AIRPORT
LEASE AGREEMENTS
LEASE SITE W2 AND TERMINAL BUILDING
This CONSENT TO L E A S E H O L D DEED OF TRUST ("Agreement") is made and
entered into by and between the CITY OF FORT WORTH ( "Lessor"), a home rule
municipal corporation organized under the laws of the State of Texas; FWS HANGAR
LLC AND FWS FBO LLC ("Lessee"), a Delaware limited liability company, and
SIGNATURE BANK, an Illinois State Financial Institution, its successors and assigns
("Lender").
The following introductory provisions are true and correct and form the basis of this Agreement:
A. Lessor and Lessee have entered into a Ground Lease Agreement identified as City
Secretary Contract No. 42806 (the "Lease") for the space known as lease site W2 and Terminal
Building as described on Exhibit A attached hereto and made a part hereof ("Leased Premises") at
Fort Worth Spinks Airport ("Airport") which Lease, or a memorandum thereof, has been or will
be recorded in the county where the Leased Premises is located.
B. Lender has loaned or will loan certain sums ("Loan") to the Lessee and FWS HOLDCO
LLC ("Co -Borrower" and, together with Lessee, the `Borrower"), which are secured, in part, by
that certain Leasehold Deed of Trust, Security Agreement, Assignment of Rents and Leases and
Fixture Filing dated as of August -al 2024, by Lessee in favor of Lender (the "Deed of Trust"),
on the Lessee's leasehold interest in the Leased Premises and all improvements situated or to be
constructed thereon (collectively, the "Leasehold").
C. Lessee and the Lender desire Lessor to consent to the execution by Lessee of the Deed of
Trust on the Leased Premises in favor of the Lender.
NOW, THEREFORE, Lessor, Lessee and the Lender hereby agree as follows:
1. The statements set forth in the recitals above are true and correct and form the basis upon
which Lessor, Lessee and the Lender have entered into this Agreement. The Lease will
be a public document on file in Lessor's City Secretary's Office and is incorporated herein
by reference for all purposes. This Agreement may be publicly recorded by Lender.
2. Lessor hereby consents to (i) the execution and delivery by Lessee to the Lender of the
Deed of Trust, and the recording thereof against the Leasehold, and any subsequent sale or
transfer of the Leasehold as provided in such Deed of Trust, and (ii) the recording by
Lender of assignments of rents and leases and separate subordination, non -disturbance and
attornment agreements with hangar tenants against the Leasehold; and (iii) any
W2 and Terminal Building
Teed of Trust Upon Leasehold
In favor of Signature Bank
Page 1 of 12
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
amendments or modifications to any of the foregoing described in (i) and (ii), and the
recording thereof against the Leasehold. Except as otherwise provided in this Agreement,
Lessor does not adopt, ratify or approve of any of the particular provisions of the Deed of
Trust and does not grant any right, privilege or use to Lessee, Lender, or any successor in
interest pursuant to the Deed of Trust that is different from or more extensive than any
right, privilege or use granted to Lessee under the Lease. Notwithstanding the foregoing
sentence, Lessee approves the Qualified FBO definition and the Qualified Bidder
definition set forth in Section 25 of the Deed of Trust and agrees that it will not
unreasonable withhold or delay its approval of a Qualified Bidder as set forth in the Deed
of Trust and will promptly execute a Qualified Bidder Certificate for each Qualified Bidder
when requested. Notwithstanding anything contrary in the Deed of Trust, 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. Lessee and the Lender further acknowledge, understand and agree
that Lessor retains the mineral interest and the right to develop such interest; provided,
however, Lessor agrees not disturb the surface of the Lease Premises or the support of any
improvements located thereon in connection with any development of the mineral interest.
In the event of any conflict between the Deed of Trust and the Lease, the Lease shall
control in all respects as to Lessor and as to Lessee's obligations established by the Lease
and/or this Agreement. In the event of any conflict between the Deed of Trust and this
Agreement, this Agreement shall control. In the event of any conflict between this
Agreement and the Lease, the Lease shall control in all respects as to Lessor and as to
Lessee's obligations established by the Lease; provided, however, that the City consents
to the lien of the Deed of Trust on the Lessee's leasehold interest and the foreclosure
provisions set forth in Deed of Trust with respect to the sale of Lessee's interest in the
Lease.
3. In the event that Lessor provides any kind of written notice to Lessee with regard to
the Leased 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. If Lessee defaults under the Lease or if any event occurs which would give
Lessor the right to terminate, cancel, force the surrender of, or shorten the term of the
Lease, Lessor agrees to provide Lender written notice specifying the default or event of
default.
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 (i) it first has provided the Lender with written notice in accordance
with Section 3 of this Agreement and of its intent to exercise any such right, and (ii) it
has given Lender the opportunity to cure Lessee's breach or default as provided in this
Section 4. The Lender shall have thirty (30) calendar days from the date it receives
such notice to cure any monetary default under the Lease and forty-five (45) calendar
W2 and Terminal Building
Deed of Trust Upon Leasehold
In favor of Signature Bank
Page 2 of 12
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 forty-five (45) 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. Notwithstanding anything to the contrary contained herein or in
the Lease, (a) the cure periods set forth above will be extended by any period during which
any foreclosure or other legal proceedings with respect to the Leasehold, the Deed of Trust
and/or the Leased Premises are pending, and (b) the Lease will not be terminated because
of a default or breach thereunder on the part of Lessee which cannot be cured. The Lessor
(a) hereby subordinates its interest in any property of a Borrower which is collateral for
any loans made by Lender to a Borrower to Lender's interest in such collateral, subject to
Section 12 of this Agreement, and (b) hereby subordinates its lien and security interest in
in the Leased Premises to the Deed of Trust subject to section 12.
5. Lessee agrees that (i) it will not request, execute, accept or consent to any future
modifications, amendments or assignments of the Lease, and (ii) it will not accept a
cancellation or voluntary surrender of the Lease, in each case 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, or any such
attempted amendment, modification, assignment, cancellation or surrender, without
Lender's advance written consent may be void and specifically releases, holds harmless
and agrees to indemnify Lender, for any damages that may arise as a result of any such
consent.
6. Subject to the provisions of this Agreement, as long as such does not conflict with
Lessor's rights under the Lease, Lessor consents to the exercise by the Lender of any
and all rights and remedies permitted under the Deed of Trust (including judicial
and/or non judicial foreclosure, or conveyance by deed in lieu of foreclosure of, on the
Leased Premises), and to the exercise of such additional legal and equitable rights and
remedies as may be available to Lender, if an Event of Default occurs under the Deed
of Trust. Any such exercise of remedies by Lender shall not constitute a default by Lessee
under the Lease. In the event that Lender undertakes to enforce its rights to any collateral
granted by the Deed of Trust on account of default by Lessee under the Deed of Trust,
Lessor will cooperate with the Lender in its efforts to assemble and/or remove any
personal property of Lessee on the Leased Premises, including permitting Lender to
peaceably enter the Leased Premises for a period of up to thirty (30) days to complete
removal of the personal property to which Lender is entitled to remove under this
Agreement, and will reasonably cooperate with summary proceedings to evict Lessee
pursuant to the Deed of Trust. The Lessee hereby agrees to repair any damages at or
to the Airport, including the Leased Premises, caused by or, incident to such removal.
Lender agrees and covenants that it will not exercise any rights it may have under the
Deed of Trust to enter any portion of any Property to cure any default under the Deed of
Trust by the Lessee until Lender has given prior written notice thereof to Lessor and
W2 and Terminal Building
Deed of Trust Upon Leasehold
In favor of Signature Bank
Page 3 of 12
Lender's entry upon any portion of the Property shall be subject to and in accordance with
all applicable law.
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, the Lender hereby agrees
and covenants that any and all proceeds payable under the terns 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.
8. 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 Lessee agrees that it promptly will notify Lessor in writing when the Lender has
released its rights under the Deed of Trust. This Agreement will automatically terminate
on the earlier of (i) the date as of which the Lender releases such rights, or (ii) the stated
expiration date of the Lease, or (iii) the date upon which the Lease is terminated in
accordance with the terms of the Lease and subject to Section 4 of this Agreement.
10. If the Lender forecloses on the Leased Premises as a result of exercising its rights under
the Deed of Trust, then notwithstanding anything to the contrary set forth in the Lease, the
Lender may become the owner of all of Lessee's rights under the Lease, without Lessor's
further action or consent. However, if the Lender desires to sell or otherwise transfer its
leasehold interest in the Leased Premises to a third party (either at or after foreclosure), the
Lender must obtain the Lessor's written consent to and approval of the purchaser which
approval shall not be unreasonably withheld. At the request of Lender or any such
transferee and subject to City Council approval, which approval shall not be unreasonably
withheld, Lessor shall enter into a new lease agreement with Lender or such transferee, as
applicable, having substantially the same terms and conditions as the Lease. Nothing in
this Agreement is intended to prohibit the Lender from assigning the liens and security
interests created by the Deed of Trust to another financial institution or an affiliate of
Lender, but Lender must notify Lessor of such assignment. If Lender assumes the Lease,
Lender shall be required to perform only those obligations of Lessee which arise and to
pay only the rent which accrues during the period when Lender holds title to and has
possession of the Leased Premises and the Leasehold; provided further, that the liability of
Lender shall be limited to the Lender's interest in the Leasehold.
11. Notices to the Lender required pursuant to the provisions of this Agreement shall be
W2 and Terminal Building
Deed of Trust Upon Leasehold
In favor of Signature Bank
Page 4 of 12
conclusively determined to have been delivered (i) when hand -delivered to the Lender, its
agents, employees, servants or representatives, or (ii) five (5) business days after
deposited in the United States Mail, certified, return receipt requested, addressed as
follows:
Signature Bank
9450 W. Bryn Mawr Ave., Suite 300
Rosemont, Illinois 60018
Attn: David G. Wymer, Senior Vice President
with a copy to: Huck Bouma, P.C.
1755 S. Naperville Road, Suite 200
Wheaton, Illinois 60189
Attn: Alison J. Wetzel, Esq.
12. The parties hereto understand and agree that upon expiration or termination of the Lease,
all permanent 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.
Improvements of a non -permanent nature, all trade fixtures, machinery, furnishings and
other non -permanent 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. Estoppel.
a. The document referred to above as comprising of the Lease is the only document
which constitute the Lease, and the Lease is in full force and effect and has not been
modified, changed, altered or amended in any respect.
b. The Lease is the only agreement between the Lessor and Lessee relating to the
Lease at Fort Worth Spinks Airport and, together with the minimum standards and
other general regulations that may apply to the lessee under the Lease, contain the
entire agreement and understanding of the Lessor and Lessee with respect thereto.
Lessee is the current holder of the leasehold interest in the premises under the
Lease.
C. To the best knowledge of the Lessor, no monetary or non -monetary default by the
Lessor or Lessee presently exists under the Lease and no state of facts exist which
with the passage of time or giving of notice, or both, would constitute a default by
the Lessor or the Lessee under the Lease.
d. The Lessor has not taken, and does not currently anticipate taking any action to, or
that would, terminate the Lease.
W2 and Terminal Building
Deed of Trust Upon Leasehold
In favor of Signature Bank
Page 5 of 12
e. Pursuant to the Lease, the Initial Term of the Lease expires on September 1, 2041
at 11:59 PM, with two (2) five (5) year options to renew.
f. There are no escrows or other deposits from Lessee held by Lessor pursuant to the
Lease.
g. Lessor has not received written notice of any pending proceedings or governmental
actions or any judicial actions of any kind against Lessor's interest in the Leased
Premises.
14. The provisions of this Agreement shall be self -operative and effective without the
execution of any further instruments on the part of any party hereto.
15. Lessor understands and agrees that this Agreement is for the benefit of the Lender, that the
Lender relied upon this Consent to Leasehold Deed of Trust and Estoppel in making its
decision to make the Loan to Lessee and that the Lender would not make the Loan absent
Lessor's execution and delivery of this Agreement.
16. 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 the Lender covenant and agree that they will not amend the Deed of Trust, or assign
any rights and/or obligations thereunder, without the prior written consent of Lessor;
provided, however, (i) Lender may assign the Deed of Trust and the obligations secured
thereunder to another financial institution or an affiliate of Lender without Lessor's
consent but Lender must notify Lessor of such assignment, and (ii) the Deed of Trust can
be amended or modified to reflect any change in the interest rate and/or maturity date of
the Loan or any additional loans made by Lender to a Borrower after the date of this
Agreement, without the prior written consent of Lessor but Lessee must provide a copy of
such amendment or modification to Lessor. This Agreement shall not be affected in any
way by, and shall remain in full force and effect notwithstanding, any amendment or
modification (including, without limitation, any renewal, extension, or increase in amount)
of the Loan and/or the documents executed in connection with the Loan. No provision of
the Deed of Trust shall constitute an amendment, modification or waiver of any
provision of the Lease.
17. 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.
18. This written instrument, including any documents attached hereto and/or incorporated
herein by reference, contains the entire understanding and agreement between Lessor,
Lessee and the 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
W2 and Terminal Building
Deed of Trust Upon Leasehold
In favor of Signature Bank
Page 6 of 12
extent in conflict with this Agreement. If any provision or obligation under this Agreement
shall be determined by a court of competent jurisdiction to be invalid, illegal or
unenforceable, that provision shall be deemed severed from this Agreement and the
validity, legality and enforceability of the remaining provisions or obligations shall remain
in full force as though the invalid, illegal or unenforceable provision had never been a part
of this Agreement.
19. The person signing this Agreement hereby warrants that he/she has the legal authority to
execute this Agreement on behalf of the respective party, and that such binding authority
has been granted by proper order, resolution, ordinance or other authorization of the entity.
The other party is fully entitled to rely on this warranty and representation in entering into
this Agreement.
20. WAIVER OF TRIAL BY JURY; VENUE. LENDER AND BORROWER OF THIS
AGREEMENT, HAVING BEEN REPRESENTED BY COUNSEL, EACH
KNOWINGLY AND VOLUNTARILY WAIVE ANY RIGHT TO A TRIAL BY JURY
IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS
UNDER THIS AGREEMENT OR UNDER ANY AMENDMENT, INSTRUMENT,
DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE
BE DELIVERED IN CONNECTION WITH THIS AGREEMENT, AND AGREES
THAT ANY SUCH ACTION OR PROCEEDING WILL BE TRIED BEFORE A COURT
AND NOT BEFORE A JURY. LENDER AND BORROWER HERETO AGREES THAT
THEY WILL NOT ASSERT ANY CLAIM ON ANY THEORY OF LIABILITY FOR
SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE
DAMAGES.
21. Upon any rejection or other termination of the Lease pursuant to any process undertaken
with respect to Lessee under the United States Bankruptcy Code, at the request of Lender
made after any and all bankruptcy court judgments of such termination or rejection and
subject to the City Council approval under the same terms and conditions unless both
parties agree otherwise, Lessor shall enter into a new lease agreement with Lender, or their
designee, having substantially the same terms and conditions as the Lease.
22. There shall be no merger of the leasehold estate created by the Lease with the fee estate in
the Leased Premises by reason of the fact that the same person may own or hold: (A) the
leasehold estate created by the Lease or any interest therein; and (B) the fee estate in the
Leased Premises or any interest in such fee estate. So long as any obligations from Lessee
to Lender remain in effect, no such merger shall occur unless and until agreed to in writing
by Lender.
[Signature Pages Follow]
W2 and Terminal Building
Deed of Trust Upon Leasehold
In favor of Signature Bank
Page 7 of 12
IN WITNESS WHEREOF,/�h�e parties hereto have executed this Agreement in multiples
on this the o7 O day of /`-t'W4 L&61- August, 2024.
u
CITY OF FORT WORTH:
By:
\&
Valerie Washington
Assistant City Manager
Date: Gj I" Vj
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on
this day personally appeared Valerie Washington, 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.
EN
UA
'�
q) NO
APPROVED AS TO FORM
AND LEGALITY:
Candke.-PA,4 &IPA,
B : Candace 7agliara (Aug 2'1 2024 14:55 CDT)
Candace Pagliara
Assistant City Attorney
M&C: 24-0670
Date Approved: 08.13.2024
Form 1295: 2023-1080419
2024-1184312
AND SEAL OF OFFICE, this
�! `N day of
No
ydLs %
n
Public in and
of
for the St of as
�'I5 • • f .\��\
ATTEST:
doF°"►:ad
ate' a 0090
8 ,
a tag =0
a a
pPo
By: /v)
Jannette S. Goodall
City Secretary
W2 and Terminal Building
Deed of Trust Upon Leasehold OFFICIAL RECORD
In favor of Signature Bank CITY SECRETARY
Page 8 of 12
FT. WORTH, TX
Contract Compliance Manager
By signing, I acknowledge that I am the person responsible for the monitoring and administration of this
contract, including ensuring all performance and reporting requirements.
Sw6aea,�+ndu.�.y
Barbara Goodwin
Real Property Manager
FWS HANGAR LLCM QG�rny �hrou9A /A "e✓
By: —
onathan M. Wenrich / �—
President
Date: 10 / cp"
STATE OF TEXAS §
COUNTY OF TARRANT §
F 0 C .41 Cvo') Pc
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on
this day personally appeared Jonathan M. Wenrich known to me to be the person whose name is
subscribed to theregoing instrument, and acknowledged to me that the same was the act OP FWS
HANGAR LLC nd that he executed the same as the act of FWS HANGAR LLC r the
purposes and consideration therein expressed and in the capacity therein stated.
GIVEN UNPER MYPAND AND SEAL OF OFFICE, thi
�T, 2024.
J
day of
" y LINDSAY EVANS
?0- P e�: Notary Public, State of Texas
"a e Comm. Expires 08-16-2028
+.� Notary Public in and for the State of Texas
oFo` Notary ID 10607364 /
.. . .. 'I (buy "9"11"1)
W2 and Terminal Building
Deed of Trust Upon Leasehold
In favor of Signature Bank
Page 9 of 12
LESSEE; i4aj eaa
FWS FBO LL 064 G6
J �
By: -
Jonathan M. Welu'ich
President
Date: -a 1;q"0'4
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 appealed Jonathan M. Wenrich known to me to be the person whose name is
subscribe the foregoing instrument, and acknowledged to me that the Sam& was the act of FWS
FBO Ll Md. that he executed the same as the act of FWS FBO LLC/-Iflor the purposes and
consideration therein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, t
2024.
�X""'�C LINDSAY EVANS
_Notary Public, State of Texas
Comm. Expires 08-16-2028 .
.y of
Notary I i�If
Notary Public in and for the State of Texas
rout &VAQj-
W2 and Terminal Building
Deed of Trust Upon Leasehold
In favor of Signature Bank
Page 10 of 12
LENDER: ATTEST:
SIGNATURE BANK
By:...__---'
y:...--- By:
David G. �,tner,for Vice President
Date:
STATE Or ILLINOIS §
COUNTY OF
if a Notary Public in and for said County in the State of
Illinois, DO H�B CERTIFY that David G. Wymer, Senior Vice President of Signature Bank,
is personally known to me to be the same person whose name is subscribed to the foregoing
instrument and appeared before me this day in person and acknowledged to me that they signed
and delivered said instrument as their own free and voluntary act and as the free and voluntary act
of said bank, for the uses and purposes therein set forth.
IVEN MY HAND AND NOTARIAL SEAL, this C7� day of
a a�NDER
` )2024,
l
OFFICIAL SEAL
J
a
RYN E. MARTINEZ PUBLIC, STATE OF ILLINOIS Notary Pu isin and for the StatPkIllinois
mmission Expires 09/21/2025
W2 and Temunal Building
Deed ofTrusl Upan leasehold
Lu favor of Signalwe Bank
Page 11 of 12
EXHIBIT A
W2 and Terminal Building
Deed of Trust Upon Leasehold
In favor of Signature Bank
Page 12 of 12