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HomeMy WebLinkAboutAddendum - 6AGREEMENT AND CONSENT TO LEASEHOLD DEED OF TRUST THIS AGREEMENT AND CONSENT TO LEASEHOLD DEED OF TRUST (this "Agreement") is made and entered into as of March 20, 2024, by and among CITY OF RENTON, WASHINGTON (the "Landlord''), and RNT 750 LLC, a Delaware limited liability company, successor to Renton Gateway Center, LLC (the "Tenant"), in favor of SIGNATURE BANK, its successors and assigns (the "Lender"). Reference is made to that certain Ground Lease (LAG 09-006) dated October 7, 2009, by and between Landlord and Grantor, successor to Renton Gateway Center, LLC (as the same may be amended, restated, replaced, supplemented or modified from time to time, the "Ground Lease"), with respect to the Tenant's leasehold interest in the real property legally described on Exhibit A attached hereto and made a part hereof (the "Premises"), which Ground Lease, or a memorandum thereof, has been or will be recorded in the county where the Premises is located. As the Lender has loaned or will loan certain sums to the Tenant and RNT FBO LLC, a Delaware limited liability company ("Co-Borrower" and, together with Tenant, 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 March 20, 2024, by Tenant in favor of Lender (the "Leasehold Deed of Trust"), on the Tenant's leasehold interest in the property demised under the Ground Lease and all improvements situated or to be constructed thereon (collectively, the "Leasehold''), for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: I.Consent; Subordination. The Landlord does hereby consent to: (i) the Leasehold Deed of Trust, the recording thereof against the Leasehold, and any subsequent sale or transfer of the Leasehold as provided in such Leasehold Deed of Trust; (ii) to the filing of fixture filings by Lender pursuant to the Leasehold Deed of Trust; (iii) the recording by Lender of assignments of rents and leases and separate subordination, non-disturbance and attornment agreements against the Leasehold; and (iv) any amendments or modifications to any of the foregoing described in (i), (ii) and (iii), and the recording thereof against the Leasehold; provided that any new leasehold deed of trust will require the Landlord's consent, which shall not be unreasonably withheld, conditioned or delayed. The Landlord (a) hereby subordinates its interest in any property of a Borrower which is collateral for any loans made by Lender to Tenant to Lender's interest in such collateral, excluding any property that reverts to the Landlord pursuant to the terms of the Ground Lease, and (b) hereby subordinates its interest in the Premises to the Leasehold Deed of Trust during the term of the Ground Lease. 2.Restrictions. Until (i) all obligations of the Ground Lease have been satisfied to the reasonable satisfaction of Landlord, and (ii) all obligations of the Tenant to the Lender secured by the Leasehold Deed of Trust (the "Loan Obligations") shall have been completely paid and performed, and the Leasehold Deed of Trust shall have been discharged, without Lender's prior written consent, not to be unreasonably withheld, conditioned or delayed: (i) Landlord agrees not to accept a cancellation or voluntary surrender of the Ground Lease; (ii) neither Landlord nor Tenant shall terminate (except as provided in Section 3 hereof), amend or modify the Ground Lease; and (iii) Landlord and Tenant shall not subordinate the Ground Lease, or any New Lease (as defined herein), to any mortgage or deed of trust that may hereafter be placed on Landlord's fee interest in the Premises. Any such attempted termination, cancellation, surrender, amendment, modification or subordination of the Ground Lease without the prior written consent of Lender and Landlord shall be null and void and of no force or effect, provided that (i) if a termination, cancellation or surrender of the Ground Lease is expressly required pursuant to a written order of a federal governmental agency pursuant to federal law and Lender's consent cannot be obtained prior to such termination, cancellation or surrender without violating such written order, Landlord and Tenant shall give immediate written notice thereof to Lender with a copy of such written order, and (ii) if LAG-09-006, Adden #6-24 fifteen ( 15) days of repossession or notice of default given under (b) above, whichever occurs first, and that Landlord would then meet the standards of the holder of the Notes and Leasehold Deed of Trust with respect to the assumption of like or similar instruments. Landlord agrees to execute and deliver any documents as shall be required by Lender to effectuate and carry out such assumption, and assumption by Landlord shall not result in the release of Tenant or guarantor of the indebtedness secured by the Leasehold Deed of Trust. 5.Removal of Collateral. The Landlord agrees that the Lender shall have the right at any reasonable time, but subject to the terms and conditions of the Leasehold Deed of Trust, to remove from the Leasehold any of the Tenant's personal property which is, at any time, located at, constructed upon or affixed to the Leasehold but excluding any property that reverts to the Landlord pursuant to the terms of the Ground Lease (the "Tenant's Property"). Landlord hereby waives any right, title, claim, lien or interest in the Tenant's Property and subordinates to the Lender's security interests therein any landlord's lien, encumbrance or other interest which the Landlord may now or hereafter have or acquire therein under the Ground Lease or applicable law. Lender will not be liable for the condition of the Premises after removal so long as reasonable care is used in effecting such removal. 6.Additional Provisions. The terms and conditions of this Section 6 shall be binding upon the Landlord as if fully set forth in the Ground Lease, and to the extent of any conflict or inconsistency between the terms and provisions contained in the Ground Lease and the terms and conditions set forth in this Section 6, the terms and conditions in this Section 6 shall govern and control: (a)Subordination and Non-Disturbance Agreement. Notwithstanding anything to the contrary contained in the Ground Lease, Landlord hereby covenants and agrees that Landlord will not hereafter encumber Landlord's fee interest in the Premises or any part thereof with a deed of trust, mortgage or other security instrument (a "Fee Mortgage") without first causing to be executed and delivered to Tenant and Lender a Subordination and Non-Disturbance Agreement, in form and substance reasonably acceptable to Lender, duly executed by any holder of any deed of trust or mortgage on Landlord's fee interest in the Premises, which Agreement shall provide, among other things, that such Fee Mortgage shall be junior and subordinate to the Ground Lease, to any New Lease (as hereinafter defined) and to the Leasehold Deed of Trust, and that such Fee Mortgage will not disturb Lender's or Tenant's possession of such property following a foreclosure of such deed of trust or mortgage. (b)Permitted Transfers. Notwithstanding anything to the contrary in the Ground Lease, the following transfers shall be permitted and shall not require the approval or consent of Landlord: (i)a transfer of the Leasehold at foreclosure sale under the Leasehold Deed of Trust, whether pursuant to power of sale contained, judicial foreclosure decree, or assignment in lieu of foreclosure, and (ii) any subsequent transfer of the Leasehold by Lender (or its nominee or designee) if the Lender ( or such nominee or designee) is the purchaser at such foreclosure sale or under such assignment in lieu of foreclosure. Lender shall have no obligation to cure any defaults or otherwise perform any obligations of Tenant under the Ground Lease unless Lender expressly assumes such obligations in writing. (c)Lender's Assignment Rights. If Lender assumes the Ground Lease, Lender shall be required to perform only those obligations of Tenant which arise and to pay only the rent which accrues during the period when Lender holds title to and has possession of the Premises and the Leasehold; provided further, that the liability of Lender shall be limited to the Lender's interest in the Leasehold. In addition, Lender shall have the right to assign its interest under the Ground Lease to any party (a "Lender's Assignee") with credit standing and operational qualifications adequate for performance of the remainder 3 of the Ground Lease, subject to the Landlord's prior written approval of such assignment, which approval shall not be unreasonably withheld or delayed. Upon the Lender's Assignee assuming and agreeing to perform and to be bound by all of the terms of the Ground Lease, Lender (if it previously has assumed the Ground Lease) shall be relieved of further liability under the Ground Lease. Lender shall not, however, have the right to assign said interest to Tenant or its successors or assigns. Any such Lender's Assignee shall be liable to perform the obligations of Tenant under the Ground Lease only so long as such Lender's Assignee holds title to the Leasehold, provided that upon any conveyance of such title by such Lender's Assignee to another transferee in accordance with the terms of the Ground Lease, such transferee expressly assumes and agrees to perform all of the obligations under the Ground Lease. Following any transfer described in this Section, all non-curable defaults existing under the Ground Lease prior to such transfer shall be deemed waived without further notice or action of any party. (d)No Merger. If title to Landlord's estate and to Tenant's estate shall be acquired by the same person, firm or entity, other than as a result of termination of the Ground Lease, no merger shall occur, if the effect of such merger would extinguish or in any way impair the lien of the Leasehold Deed of Trust. (e)Landlord Estoppel. Landlord hereby certifies to Lender, as of the date of this Agreement, that: (i) Landlord is the landlord under the Ground Lease; (ii) the term of the Ground Lease will expire on October 31, 2045, exclusive of any unexercised renewal options and extension options contained in the Ground Lease; (iii) the Ground Lease is in full force and effect; (iv) there have been no amendments, modifications or revisions to the Ground Lease, and there are no agreements of any kind between Landlord and Tenant regarding the Premises, except as provided in the Ground Lease; (v) no default has occurred by either Landlord or the Tenant under the Ground Lease; (vi) there is no condition which, but for the passage of time or the giving of notice or both, would result in a default by the Landlord or, to the best of Landlord's knowledge, the Tenant under the Ground Lease; (vii) Landlord has not received any notice of any present violation of any federal, state, county or municipal laws, regulations, ordinances, orders or directives relating to the use or condition of the Premises. Landlord agrees to execute and/or deliver to Lender, within 30 days of Lender's request, a certificate stating that the Ground Lease is in full force and effect, that Tenant is not in default under the Ground Lease, that the Ground Lease has not been modified or supplemented in any way and containing such other certifications, including, without limitation, the certifications contained herein, and agreements as Lender may reasonably request, and (2) copies of the documents creating or evidencing the Ground Lease certified by Landlord as being true, correct and complete copies thereof. (t)New Lease. If the Ground Lease is terminated or extinguished for any reason prior to its stated expiration date (including, without limitation, rejection of the Ground Lease by a trustee in bankruptcy), upon the written request of Lender, the Landlord will enter into a new lease of the Premises with Lender, or its designee or nominee, for the remainder of the term, effective as of the date of such termination, which new lease shall be on substantially the same terms as the Ground Lease then in effect, including without limitation, at the rent and additional rent and upon the covenants, agreements, terms, provisions and limitations then in effect under the Ground Lease (the "New Lease"). Landlord will execute such New Lease within sixty (60) days after the date of Lender's written request. In the event a New Lease is executed with a third party who grants Lender a security interest in the New Lease, Landlord will execute a new Consent of Landlord in substantially the same form as this document, when requested to do so by Lender. 4 7.Bankruptcy Provisions. (a)To the extent permitted by law, so long as the Leasehold Deed ofTrust shall remain outstanding, the right of election arising under Section 365 (h)(I) of the U.S. Bankruptcy Code, I I U.S.C. Sections IO I et seq., as the same may be amended (the "Bankruptcy Code") shall be exercised by Lender and not by Tenant and any exercise or attempted exercise by Tenant of such right of election in violation of this provision shall be void. (b)However, if despite the foregoing provision, Lender is not permitted to exercise such right of election and Landlord (or any trustee of Landlord) shall reject the Ground Lease pursuant to Section 365(h) of the Bankruptcy Code, (i) Tenant shall without further act or deed be deemed to have elected under Section 365(h)( I )(A) of the Bankruptcy Code to remain in possession of the Leasehold for the balance of the term of the Ground Lease, (ii) any exercise or attempted exercise by Tenant of a right to treat the Ground Lease as terminated under Section 365(h)( I )(A) of the Bankruptcy Code shall be void, (iii)the Leasehold Deed of Trust shall not be affected or impaired by such rejection of the Ground Lease, and (iv) the Ground Lease shall continue in full force and effect in accordance with its terms, except that Tenant shall have the rights conferred under Section 365(h)(I )(8) of the Bankruptcy Code. (c)For purposes of Section 365(h) of the Bankruptcy Code, the term "possession" shall mean the right to possession of the Leasehold granted to Tenant under the Ground Lease whether or not all or part of the Leasehold has been subleased. (d)If Tenant shall reject the Ground Lease pursuant to Section 365(a) of the Bankruptcy Code, Landlord shall serve on Lender notice of such rejection, together with a statement of all sums at the time due under the Ground Lease (without giving effect of any acceleration) and of all other defaults under the Ground Lease then known to the Landlord. The Lender shall have the right, but not the obligation, to serve on the Landlord within thirty (30) days after service of the notice provided in the proceeding sentence, a notice that the Lender elects to (i) assume the Ground Lease, and (ii) cure all defaults outstanding thereunder (x) concurrently with such assumption as to defaults in the payment of money, and (y)within sixty (60) days after the date of such assumption as to other defaults, except for defaults of the type specified in Section 365(b) (2) of the Bankruptcy Code. If the Lender serves such notice of assumption, then, as between the Landlord and the Lender (i) the rejection of the Ground Lease by the Tenant shall not constitute a termination of the Ground Lease, (ii) the Lender may assume the obligations of the Tenant under the Ground Lease without any instrument or assignment of transfer from the Tenant, (iii) the Lender's rights under the Ground Lease shall be free and clear of all rights, claims and encumbrances of or in respect of the Tenant, and (iv) the Lender shall consummate the assumption of the Ground Lease and the payment of the amounts payable by it to the Landlord pursuant to this Section at a closing to be held at the offices of the Landlord (or its attorneys) within thirty (30) days after the Lender shall have served the notice of assumption hereinabove provided. Upon a subsequent assignment of the Ground Lease by the Lender, the Lender shall be relieved of all obligations and liabilities arising from and after the date of such assignment. 8.Notices. All notices, demands, instructions and other communications required or permitted to be given to or made upon any party hereto or any other person shall be in writing and shall be given by (i)personal delivery (effective upon receipt), (ii) registered or certified mail, postage prepaid, return receipt requested (effective three (3) business days after mailing), or (iii) nationally recognized overnight courier for next business day delivery (effective the next business day), addressed to the parties hereto at their addresses set forth below or to such other address as a party may designate pursuant to a written notice sent in accordance with the provisions of this Section. 5 Ifto Tenant: with a copy to: Ifto Landlord: If to Lender: with a copy to: RNT 750 LLC 113 Cherry Street PMB 74172 Seattle, Washington 98104 Attn: Jonathan Wenrich Seyfarth Shaw LLP 999 Third Avenue, Suite 4700 Seattle, Washington 98104 Attn. Luke M. LaRiviere, Esq. City of Renton Attn: City Clerk 1055 South Grady Way Renton, Washington 98057 Signature Bank 9450 W. Bryn Mawr Ave., Suite 300 Rosemont, Illinois 60018 Attn: David G. Wymer, Senior Vice President Huck Bouma, P.C. 1755 S. Naperville Road, Suite 200 Wheaton, Illinois 60189 Attn: Alison J. Wetzel, Esq. 9.Successors and Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of each party's respective successors and assigns; provided, however, Tenant shall not assign any of its rights or obligations under this Agreement without the prior written consent of Lender. 10.Continued Effectiveness of this Agreement. The terms of this Agreement, the subordination effected hereby, and the rights of Lender, and the obligations of Landlord and Tenant arising hereunder shall not be affected, modified or impaired in any manner or to any extent by (a) any renewal, replacement, amendment, extension, substitution, revision, consolidation, modification or termination of or any of the Loan Obligations; (b) the validity or enforceability ofany document evidencing or securing the Loan Obligations; (c) the release, sale, exchange for surrender, in whole or in part, of any collateral security, now or hereafter existing, for any of the Loan Obligations; (d) any exercise or nonexercise of any right, power or remedy under or in respect of any Loan Obligations; or (e) any waiver, consent, release, indulgence, extension, renewal, modification, delay or other action, inaction or omission in respect of any Loan Obligations, all whether or not Landlord all have had notice or knowledge of any of the foregoing and whether or not it shall have consented thereto. 11.Entire Agreement; Amendment; Severability. This Agreement and Appendix 2 attached to the Ground Lease contains the entire agreement between the parties respecting the matters herein set forth and supersedes (except as to the Loan Documents) all prior agreements, whether written or oral, between the parties respecting such matters; provided that, notwithstanding the foregoing or anything to the contrary in this Agreement or the Ground Lease, in the event of any conflict or inconsistency between 6 any terms or provisions contained in this Agreement and any terms or provisions in the Ground Lease, the terms and provisions providing the greater rights and protections to Lender shall govern and control. Any amendments or modifications hereto, in order to be effective, shall be in writing and executed by the parties hereto. 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. 12.Governing Law; Binding Effect. This Agreement shall be governed by and construed in accordance with the laws of the State in which the Property is located. The terms, covenants and conditions of this Agreement shall be binding upon and inure to the benefit of the heirs, successors and assigns of the parties. 13.Counterparts. This Agreement may be executed in counterparts, each of which shall be an original, but all of which shall constitute one and the same instrument. The parties may deliver such counterparts by facsimile and/or e-mail transmission, which shall be as effective as original signatures and binding upon the parties. 14.WAIVER OF TRIAL BY JURY; VENUE. EACH PARTY TO 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, AS MAY BE AMENDED FROM TIME TO TIME AND AGREES THAT ANY SUCH ACTION OR PROCEEDING WILL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. EACH PARTY HERETO AGREES THAT THEY WILL NOT ASSERT ANY CLAIM ON ANY THEORY OF LIABILITY FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES. EACH PARTY HEREBY IRREVOCABLY AGREES THAT, SUBJECT TO THE LENDER'S SOLE AND ABSOLUTE ELECTION, ALL SUITS, ACTIONS OR OTHER PROCEEDINGS WITH RESPECT TO, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL BE SUBJECT TO LITIGATION IN COURTS HA YING SITUS WITHIN OR JURISDICTION OVER KING COUNTY, WASHINGTON. EACH PARTY HEREBY CONSENT AND SUBMIT TO THE JURISDICTION OF ANY LOCAL, STATE OR FEDERAL COURT LOCATED IN OR HAVING JURISDICTION OVER SUCH COUNTY AND ST A TE. ORAL AGREEMENTS OR ORAL COMMITMENTS TO LEND MONEY, EXTEND CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON LAW. {Signature pages follow J 7 [N WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be duly executed and delivered as of the date first above written. LANDLORD: CITY OF RENTON, WASHINGTON By: � Name: �vlo,tiP {},u.,,(f Title: ,/ti\" �-........ �--- STATE OF WASHINGTON COUNTY OF -""-t_""-l '--v,_,,�11---- ACKNOWLEDGMENT ) ss. ) I certify that I know or have satisfactory evidence that /h·wJott/4 .{l &tlf.. is the person who appeared before me, and said person acknowledged that said person signed this instrument and acknowledged it as the V/.1(, 11'1C of the City of Renton, Washington, to be the free and voluntary act of such party ffrthe uses and purposes mentioned in the instrument. NOTARY U LI m nd for the State of Washington, residing at B kl Ct Dia trlcn£1 Name (printed or typed)Ja Sovi $eHtt My commission expires: 7 j 9 -z,- {Signature pages continue on next page] 8 IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be duly executed and delivered as of the date first above written. TENANT: RNT750 LLC By: FBO Capital Group Management LLC, its Manager By: Dark Horse Capital LLC, its Manager r· -----... ---,,......,,.� -------::=---::. ----------• _,./ By: .----�, - _ . . . _ _ � .,-- .--....-�Jonathan Wenrich, M�ager ACKNOWLEDGMENT Ort�oV) STATE OF W,UiHINGl�N ) l+ ,. IA ) ss. COUNTY OF N l,{ V'IDrYltV 1 ) I certify that I know or have satisfactory evidence that Jonathan Wenrich is the person who appeared before me, and said person acknowledged that said person signed this instrument and acknowledged it as the Manager of Dark Horse Capital LLC, the Manager of FBO Capital Group Management LLC, which is the Manager of RNT 750 LLC, a Delaware limited liability company, to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. DATED this JL day of �rcll\, OFFICIAL STAMP AMY ROCHELLE KETTLESON NOTARY PUBLIC-OREGON COMMISSION NO.1021308 MY COMMISSION EXPIRES JANUARY 30, 2026 in�ten, 0,-�(JY) -"-,.-1--''-"-',c'-+',.__.,1-'r...::..;�c...>........., __ _ Name (pri ted or typed) My commission expires: __ �------ [Signature pages continue on next page} 9 DEBORAH A TIEDEMAN Official Seal Notary Public • State of Illinois My Commission Expires May 29, 2027 EXHIBIT A Legal Description of Premises