HomeMy WebLinkAbout2023 Ground Lessor Estoppel & AgreementGROUND LESSOR ESTOPPEL AND AGREEMENT
WHEREAS, CITY OF SEBASTIAN, a municipal corporation existing under the
laws of the State of Florida (hereinafter "Landlord'), or its predecessor in interest, has heretofore
leased certain lands described on Exhibit A attached hereto (hereinafter the "Premises') to
SHELTAIR SEBASTIAN, LLC a Florida limited liability company (hereinafter'enanf ), or its
predecessor in interest, pursuant to an agreement of lease, as more particularly described on
Exhibit B, (as same may have been amended, modified, substituted or extended, hereinafter the
WHEREAS, Tenant and certain other affiliates of Borrower, as co -borrowers or
guarantors (collectively, "Loan Parties") entered into a Credit Agreement among Borrower, the
Loan Parties, SunTrust Bank n/k/a Truist Bank, as Administrative Agent and Collateral Agent
(together with it successors and assigns, the "Administrative Agent"), and Issuing Bank, and the
Lenders from time to time party thereto (as the same may be amended, restated, supplemented or
otherwise modified from time to time, the "Original Credit Aareement"; and
WHEREAS, the Loan Parties and Administrative Agent thereafter amended and
restated the Original Credit Agreement in the Second Amended and Restated Credit Agreement;
and
WHEREAS, the Loan Parties and Administrative Agent desire to enter into the
Third Amended and Restated Credit Agreement; capitalized terms used herein and not otherwise
defined shall have the meanings assigned to such terms in the Third Amended and Restated
Credit Agreement). As security for the Obligations under the Third Amended and Restated
Credit Agreement and the other Loan Documents, Tenant intends to execute a first leasehold
mortgage for the benefit of Administrative Agent upon Tenant's interest as tenant under the
Lease in the Premises (the "Leasehold Mortaaae'); and
WHEREAS, the Administrative Agent and the Lenders are unwilling to enter into
the Third Amended and Restated Credit Agreement unless Landlord reaffirms to Administrative
Agent that the provisions of the Lease respecting leasehold mortgages are restated and confirmed
for Administrative Agent's benefit and certain additional agreements are made with
Administrative Agent with respect to Administrative Agent's rights as the holder of the
Leasehold Mortgage;
NOW THEREFORE, in consideration of ten dollars ($10,00) and other good and
valuable consideration the receipt and sufficiency of which are hereby acknowledged, Landlord
hereby certifies to and agrees with Administrative Agent as follows:
1. Upon the recording of the Leasehold Mortgage, Landlord hereby
recognizes Administrative Agent as a' 2 as defined in Article XVIII of the Lease, for
all purposes under the Lease. Landlord hereby consents to the granting by Tenant of a mortgage
on Tenant's interest pursuant to the Lease to Administrative Agent.
2. All of the mortgagee protection provisions contained in the Lease,
including but not limited to Article XVIII, and all other provisions inuring to the benefit of
CHARA13494990
mortgagees or their successors and assigns contained in the Lease, are hereby incorporated into
this agreement by reference and restated and confirmed by Landlord for the benefit of
Administrative Agent, its successors and assigns. Landlord confirms that pursuant to the
provisions contained in Article I, Section 1.4 of the Lease that Landlord is not permitted, in the
absence of an uncured default of Tenant under the Lease, to disturb the possession, interest or
quiet enjoyment of Tenant or any subtenant of the Tenant, or in any manner, which would
adversely affect the security provided in the Leasehold Mortgage.
3. Landlord hereby agrees that the Lease shall not be modified, terminated,
amended, altered or cancelled, nor shall a surrender of the Premises be accepted by Landlord,
without the prior written consent of Administrative Agent, and that any such action taken
without Administrative Agent's consent shall not be binding on Tenant or Administrative Agent.
4. Landlord hereby confirms that, pursuant to Article XVIII, Section 18.3 of
the Lease, in the event that the Lease is terminated for any reason including, without limitation,
as a result of a rejection of the Lease in a bankruptcy proceeding, upon Administrative Agent's
written request, Landlord shall enter into a new ground lease with Administrative Agent and
such new ground lease shall be upon the same terms and conditions of the unexpired term of the
Lease immediately prior to such termination.
S. Landlord hereby confirms with respect to the new ground lease referred to
in Article XVIH, Section 18.3 of the Lease that, should Administrative Agent become the tenant
under a new lease:
(a) title to all improvements now owned by Tenant, if any, situate on the
Premises shall automatically vest in Administrative Agent pursuant to Article XVHI, Section
18.3 of the Lease; and
(b) Landlord shall promptly assign to Administrative Agent all space leases
and subleases under which the tenants have attorned, with the consent of Administrative Agent
pursuant to Article XVHI, Section 18.3 of the Lease, to Landlord.
6. Landlord hereby covenants and agrees that the Leasehold Mortgage shall
not be subject or subordinate to any mortgage encumbering the fee estate of the Premises.
7. Landlord hereby confirms the provisions of Article XVIII, Section 18.1 of
the Lease to the effect that Landlord shall deliver to Administrative Agent written notice of any
default by Tenant under the Lease simultaneously with sending such notice to Tenant and that no
notice of default given to Tenant, and no exercise of any remedy by Landlord as a result of any
such default, shall be effective unless such notice shall have been delivered to Administrative
Agent. Landlord hereby further confirms the provisions of Article XV1II, Section 18.2 of the
Lease to the effect that Administrative Agent shalt have the right, but not the obligation, to cure
any default by Tenant under the Lease and Administrative Agent shall be afforded (a) 30 days to
cure any such default or (b) in the event that any such default cannot, with reasonable diligence,
be cured within 30 days, such longer period as may be required to complete such cure including,
without limitation, such time as may be required for Administrative Agent to gain possession of
Tenant's interest under the Lease, provided that Administrative Agent notifies Landlord of its
intention to cure such default and Administrative Agent promptly commences and diligently
pursues such cure to completion.
8. Landlord hereby confirms that Tenant does not have the right to assign or
sublet Tenant's interest under the Lease to Administrative Agent, its successor or assign without
the consent of Landlord, and in the event Tenant's interest under the Lease is so assigned or
sublet to Administrative Agent, its successor or assign (as applicable, the " ssi ee'), such
Assignee shall not have the right to further assign or sublet the Tenant's interest in the Lease
without the need to obtain the consent of Landlord.
9. Landlord hereby covenants and agrees that Administrative Agent shall be
entitled to participate in any settlement regarding insurance or condemnation proceeds or awards,
to collect and hold any such proceeds or awards and to determine and direct whether any such
proceeds or awards are made available for the restoration of the Premises or are applied to the
repayment of the Obligations under the Third Amended and Restated Credit Agreement and the
other Loan Documents.
10. Landlord hereby confirms the provisions of Article XVHI, Section 18.3 to
the effect that Administrative Agent shall have the right, pursuant to the terms of the Lease, to
exercise any option to renew the term of the Lease or any option to purchase the Premises, if the
Tenant shall fail to exercise any option to so extend or purchase.
11. Landlord hereby certifies as follows:
(a) Landlord is the owner of the fee simple estate in the Premises and is the
landlord under the Lease.
(b) Tenant is the owner of the leasehold estate in the Premises and is the
tenant under the Lease.
(c) The Lease is in full force and effect in accordance with its terms and has
not been further assigned, supplemented, modified or otherwise amended except as set forth in
Exhibit B attached hereto and each of the obligations on Landlord's part to be performed to date
under the Lease have been performed.
(d) To the best of Landlord's knowledge, each of the obligations on Tenant's
part to be performed to date under the Lease have been performed.
(e) To the best of Landlord's knowledge, Borrower has no offsets,
counterclaims, defenses, deductions or credits whatsoever with respect to the Lease.
(f) Except as set forth in Exhibit B attached hereto, there do not exist any
other agreements (including Subordination, Non -Disturbance and Attornment Agreements)
concerning the Premises, whether oral or written between Landlord and Tenant (or their
respective predecessors or successors) under the Lease.
(g) As of the date hereof, no basic rent or additional rent is due from Tenant
under the Lease. The basic rent currently payable by Tenant under the Lease is
$ Or$ i 6 35'. 05 per annum. Basic rent due under the Lease has been paid
through May 31, 2023.
(h) The term commencement date of the Lease was January 1, 2004, and the
initial term/current extension term of the lease shall expire on December 31, 2033.
(i) Neither Landlord nor Tenant has assigned the Lease.
G) Landlord has not assigned, conveyed, transferred, sold, encumbered or
mortgaged its interest in the Lease or the Premises and there are currently no mortgages, deeds of
trust or other security interests encumbering Landlord's fee interest in the Premises and no third
party has an option or preferential right to purchase all or any part of the Premises.
(k) Landlord has not received written notice of any pending eminent domain
proceedings or other governmental actions or any judicial actions of any kind against the
Landlord's interest in the Premises.
0) Landlord has not received written notice that it is in violation of any
governmental law or regulation applicable to its interest in the Premises and its operation
thereon, including, without limitation, any environmental laws or the Americans with Disabilities
Act, and has no reason to believe that there are grounds for any claim or such violation.
(m) The Lease attached hereto is a true, correct and complete copy thereof.
12. Notices. All notices, demands, requests or other communications to be
sent by one party to the other hereunder or required by law shall be in writing and shall be
deemed to have been validly given or served by delivery of the same in person to the intended
addressee, or by depositing the same with Federal Express or another reputable private courier
service for next business day delivery, or by depositing the same in the United States mail,
postage prepaid, registered or certified mail, return receipt requested, in any event addressed to
the intended addressee at its address set forth on the first page hereof and, if addressed to
Administrative Agent, to Truist Bank, Agency Services, 303 Peachtree Street, 25'b Floor,
Atlanta, Georgia 32308, and if addressed to Landlord, to City of Sebastian, Attention: City
Manager, 1225 Main Street, Sebastian, Florida 32958, or at such other address as may be
designated by such party as herein provided. All notices, demands and requests shall be
effective upon such personal delivery, or one (1) business day after being deposited with the
private courier service, or two (2) business days after being deposited in the United States mail
as required above. By giving to the other party hereto at least fifteen (15) days' prior written
notice thereof in accordance with the provisions hereof, the parties hereto shall have the right
from time to time to change their respective addresses and each shall have the right to specify as
its address any other address within the United States of America.
This Estoppel and Agreement and the representations and agreements made
herein are given with the understanding that this Estoppel and Agreement constitutes a material
inducement for Administrative Agent and the Lenders to enter into the 'Third Amended and
Restated Credit Agreement and that Administrative Agent and the Lenders shall rely hereon in
entering into the Third Amended and Restated Credit Agreement. This Estoppel and Agreement
and the representations and agreements made herein shall inure to the benefit of Administrative
Agent, its successors and assigns and shall be binding on Landlord, its heirs, legal
representatives, successors and assigns.
This Estoppel and Agreement may be executed in any number of counterparts,
each of which shall be effective only upon delivery and thereafter shall be deemed an original,
and all of which shall be taken to be one and the same instrument, for the same effect as if all
parties hereto had signed the same signature page. Any signature page of this Estoppel and
Agreement may be detached from any counterpart of this Estoppel and Agreement without
impairing the legal effect of any signatures thereon and may be attached to another counterpart
of this Estoppel and Agreement identical in form hereto but having attached to it one or more
additional signature pages.
Executed this _3f� day of t4 c , 2023.
ATTEST
4ty Clerk
Printed Name: Jeanette Williams
Approved as to Form and Legality for
Reliance by the City of Sebastian only:
n l.m City Attorney
Printed Name: . !
LANDLORD:
CITY OF SEBASTIAN
A Municipal Corporation
C
By:
ff er y Manager
Printed Name: Brian Benton
TENANT:
SHELTAIR SEBASTIAN, L
,'y: 'Todd Anderson,
Chief Operating Officer
EXHIBIT A
A PARCEL LAND LYING AND BEING IN THE COUNTY OF INDIAN RIVER, STATE OF
FLORIDA, BEING A PORTION OF THE FLEMING GRANT IN TOWNSHIP 31 SOUTH,
RANGE 38 EAST, TALLAHASSEE MERIDIAN, FLORIDA, AS SHOWN ON THE
SUBDIVISION PLAT OF SAID GRANT RECORDED AT PAGES 72 AND 73 IN PLAT
BOOK NO. 1 IN THE PUBLIC RECORDS OF THE COUNTY OF BREVARD, STATE OF
FLORIDA; SAID LAND NOW LYING AND BEING IN INDIAN RIVER COUNTY,
FLORIDA AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT A 4"x4" CONCRETE MONUMENT (NO IDENTIFICATION) AT THE
WESTERLY CORNER OF SECTION 29, OF SAID FLEMING GRANT, RUN SOUTH
4490'44" EAST ALONG THE SOUTHWESTERLY LINE OF SAID SECTION 29 A
DISTANCE OF 1,650.30 FEET TO THE EAST LINE OF A 60.00 FOOT WIDE ACCESS
EASEMENT, SAID ACCESS EASEMENT BEING 30.00 FEET EACH SIDE OF THE
CENTERLINE OF THE SOUTHERLY EXTENSION OF AIRPORT DRIVE WEST AS
DEPICTED ON THE SKETCH OF INFORMATION PREPARED BY MASTELLER, MOLER
AND REED, FOR THE CITY OF SEBASTIAN - SEBASTIAN MUNICIPAL AIRPORT,
PROJECT NUMBER 95-4277, DATED SEPTEMBER, 2000;
THENCE CONTINUE SOUTH 44030'44" EAST ALONG SAID SECTION LINE A
DISTANCE OF 11.88 FEET;
THENCE RUN NORTH 0000719" WEST A DISTANCE OF 44.09 FEET TO THE POINT OF
BEGINNING;
FROM SAID POINT OF BEGINNING RUN NORTH 0305624" WEST A DISTANCE OF
56.23 FEET;
THENCE RUN NORTH 40"W21" EAST A DISTANCE OF 13.96 FEET;
THENCE RUN NORTH 0000719" WEST A DISTANCE OF 121.09 FEET;
THENCE RUN SOUTH 89052'41" WEST A DISTANCE OF 13.65 FEET;
THENCE RUN NORTH 0000719" WEST A DISTANCE 25.00 FEET;
THENCE RUN NORTH 89052'41" EAST A DISTANCE OF 13.65 FEET;
THENCE RUN NORTH 00007'19" WEST A DISTANCE OF 209.89 FEET;
THENCE RUN NORTH 90000100" EAST A DISTANCE OF 50.00 FEET;
THENCE RUN SOUTH 0000719" EAST A DISTANCE OF 50.00 FEET;
THENCE RUN NORTH 90000'00" EAST A DISTANCE OF 475.21 FEET;
THENCE RUN SOUTH 00006'36" EAST A DISTANCE OF 348.91 FEET;
THENCE RUN NORTH 90000'00" WEST A DISTANCE OF 179.07 FEET;
THENCE RUN SOUTH 00°00'00" EAST A DISTANCE OF 85.99 FEET;
THENCE RUN NORTH 88005'45" WEST A DISTANCE OF 120.33 FEET;
THENCE RUN NORTH 67023'12" WEST A DISTANCE OF 116.61 FEET;
THENCE RUN NORTH 83048'55" WEST A DISTANCE OF 124.17 FEET TO A POINT OF
BEGINNING.
SAID LANDS LYING AND BEING IN INDIAN RIVER COUNTY, FLORIDA.
CONTAINING 206,677.36 SQUARE FEET, OR 4.74 ACRES MORE OR LESS
COM
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CITY COUNCIL AGENDA TRANSMI t't Ail
Council Meeting Date: June 28, 2023
,Agenda Item Title: Approval of new Ground Lessor Estoppel and Agreement for Sheltair, and
authorize the City Manager to execute the related documents.
Recommendation: Staff recommends City Council approval of a new Ground Lessor Estoppel
and Agreement for Sheltair, Tenant and operator of T-Hangars at Sebastian
Municipal Airport, and authorize the City Manager to execute related
documents.
Eacksround: As it has in the past (2013), Sheltair is in the process of doing an Amendment
and Extension to its current financial credit facility. This requires Sheltair to obtain a routine and
straightforward 'Estoppel Agreement from each airport where Sheltair has a current lease in effect. By
definition, an estoppel certificate is "[a] signed statement by a party (such as a tenant or mortgagee) certifying
for anther's benefit that certain facts are correct, as that a lease exists, that there are no defaults, and that rent
is paid to a certain date. A party's delivery of this statement estops that party from later claiming a different
state of facts." Black's Law Dictionary, 572 (7th Ed.,1999). Please find attached the Ground Lessor Estoppel
and Agreement that Sheltair is requesting the City of Sebastian to approve and return.
This Agenda Item Does Not Reauire the Exnenditure of Funds
No expenditure -required.
Attachments:
1. .Exhibit A: Ground Lessor Estoppel and Agreement
Administrative Services Departure Review:,
City Attorney Review:
Procurement Division Review, if applicable:
r i
44t,-,
City Manager Authorization:
Date: lAa%a3