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HomeMy WebLinkAboutContract 47645-CD1CSC No. 47645-CDI CONSENT TO LEASEHOLD DEED OF TRUST FORT WORTH SPINKS AIRPORT LEASE AGREEMENTS LEASE SITE NW1 This CONSENT TO L E AS 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, 47645 (the "Lease") for the space known as lease site NW 1 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 61, 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 Ieases and separate subordination, non -disturbance and attornment agreements with hangar tenants against the Leasehold; and (iii) any NWI Deed of Trust Upon Leasehold In favor of Signature Bank Page I 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 NWl Deed of Trust Upon Leasehold In favor of Signature Bank Page 2of12 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 NWl Deed of Trust Upon Leasehold In favor of Signature Bank Page 3of12 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 terms 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 NWI Deed of Trust Upon Leasehold In favor of Signature Bank Page 4of12 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. NWI Deed of Trust Upon Leasehold In favor of Signature Bank Page 5of12 e. Pursuant to the Lease, the Initial Term of the Lease expires on April 21, 2056 at 11:59 PM. There are no options to renew the Lease. L 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 NWI Deed of Trust Upon Leasehold In favor of Signature Bank Page 6of12 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] NWI Deed of Trust Upon Leasehold In favor of Signature Bank Page 7 of 12 IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiples on this the a -""- day of A-u- j Lt,4 August, 2024. CITY OF FORT WORTH: By: 1 Valerie Washington Assistant City Manager Date: 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. IVEN UNDER MY W 14P, SEAL OF OFFICE, this IA114D day of k2i) M''i ., ay '•., ��� �+P , Notary Public in and for the State of exas 0 •.p FS APPROVED AS TO FOiN 01.13_20'L�\\\\\\�� ATTEST: A, f�Rr= o AND LEGALITY: �����""""'����\\ tt �,pQ PQY ooa oo*�O OIIII4141 Cavrdace Pagliarc� �"` By:Candace PagUara(Aug 27,2 413:54 CDT) By: Candace Pagliara Assistant City Attorney M&C: 24-0668 Date Approved: 08.13.2024 Form 1295: 2023-1080419 2024-1184312 Jannette S. Goodall City Secretary Kc- KC NW1 OFFICIAL RECORD Deed of Trust Upon Leasehold CITY SECRETARY In favor of Signature Bank FT. WORTH, TX Page 8 of 12 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. Sw6a.� �ee�in Barbara Goodwin Real Property Manager LESSEE: `�Y�rd h l5 / t'�+C, � ra i � i'� &ftp �c i FWS HANGAR LLC�G,G-fT►� � � � By: Jonathan M. Wenrich President Date: yld�Ilw 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 appeared Jonathan M. Wenrich known to me to be the person whose name is subscribed to thAnd regoing instrument, and acknowledged tome that the same was the act FWS HANGAR LL that he executed the same as the act of FWS HANGAR LLdftor the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this day of 2024. LINDSAY EVANS -Notary Public, State of Texas Comm. Expires 08-16-2028 Notary ID 10607364 1 �G " `n9rh ;- ��� NWI Deed of Trust Upon Leasehold In favor of Signature Bank Page 9 of 12 X\I- Notary Public in and for the State of Texas CqI�) Group Wkwcge tv\6C, t-l-G LESSEE: FWS FBO LLC 46RA9 4%I AAlh i4 onathan M. Wenrich President Date: 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 appeared Jonathan M. Wenrich known to me to be the person whose name is subscribed the foregoing instrument, and acknowledged to me that the sanj the act of FWS FBO LL and that he executed the same as the act of FWS FBO LLC or the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 02a(;-- day of 2024. v LINDSAY EVANS State of Taxes Notary Public, Comm. Expires 0&16-2028 "',,,oaf}�� Notary ID 10607364 1, N--- Notary Public in and for the State of Texas fro ti I ,'x, C� �`�Zi l C rou-P 11'la �a�c A'l ev�f, �LG J-w4ftq� NWI Deed of Trust Upon Leasehold In favor of Signature Bank Page 10 of 12 LENDER: ATTEST: SIGNATURE BANK By: _ _. By: David G. enior Vice President Date: � � V STATE OF ILLINOIS L COUNTY OF I, �� a Notary Public in and for said County in the State of Illinois, DO HE BY 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. (GIVEN t.1 DER MY I -LAND AND NOTARIAL SEAL, this �� v day of 2024. ENOTARY ICIAL SEAL {/tip E. MARTINEZ N tary Pt lic in and for the S of Illinois C, STATE OF ILLINOIS n Expires 09/21/2025 NWI Deed of Trust Upon Leasehold In favor of Signature Bank Page 11 of 12 EXHIBIT A REAL PROPERTY DESCRIPTION AND MAP FOR LEASE SITE NWI BEING 1.453 acres of land situated in the SARAH GRAY SURVEY, Abstract No. 558, Tarrant County, Texas, and being a portion of Block 3, as shown on the Final Plat of Fort Worth Spinks Airport, according to the flat recorded in Cabinet A, Slide 353, of the Plat Records of Tarrant County, Texas. Said 1,453 acres of land being more particularly described by metes and bounds as follows; BEGINNING at an "X" cut in concrete set lying S 89" 57' 42" E 103.00 feet from a%" iron rod found marked CHA", at the Northeast comer of the existing Harrison Aviation Terminal Site Lease Area; THENCE N 89" 5742" W at 103.00 feel, passing said%" iron rod found marked "CHA" at the Northeast corner of the existing Harrison Aviation Terminal Site Lease Area, and continuing in all 294.35 feet, to a PK nail set in asphalt at the Southwest corner of said proposed Hangar NWI Lease Area, said point lying in the East right-of-way line of Wing Way (a 44' wide right-of-way), and the West boundary line of the aforesaid Block 3; THENCE N 00" 00' 18" E 215.00 feet, along the West boundary line of said Block 3, and the East right-of-way line of said Wing Way, to a Y,." Iron rod marked "Brittain & Crawford", set at the Northwest corder of said proposed Hangar NW 1 Lease Area; THENCE S 89" 5742" E 294.48 feet, along the North boundary line of said proposed Hangar N W 1 Lease Area, to an "X" cut in concrete set at the Northeast comer of said proposed Hangar NW 1 Lease Area; THENCE S 00" 02' 18" W 215.00 feet, along the East boundary line of said proposed hangar N W I Lease Area, to THE POINT OF BEGINNING, containing 1,453 acres (63.299 SQUARE FEET) of land. NWI Deed of Trust Upon Leasehold In favor of Signature Bank Page 12 of 12