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
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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.
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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.
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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
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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
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[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]
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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
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-----... ---,,......,,.� -------::=---::. ----------• _,./ 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: __ �------
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DEBORAH A TIEDEMAN
Official Seal
Notary Public • State of Illinois
My Commission Expires May 29, 2027
EXHIBIT A
Legal Description of Premises