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HomeMy WebLinkAboutOsprey Aviation LLC - Landlord Consent 2.15.21LANDLORD CONSENT TO LEASEHOLD MORTGAGE AND ESTOPPEL CERTIFICATE THIS LANDLORD CONSENT TO LEASEHOLD MORTGAGE AND ESTOPPEL CER.IJJ ICA.1'E dated February 15 , 2021 ("Certificate"), is made and executed among Osprey Aviation, LLC, whose address is 1710 Adams Street, Cedar Falls, IA 50316 ("Tenant"), Community Bank & Trust, whose address is 422 Commercial Street, Waterloo, IA 50701 ("Lender"), and the City of Waterloo, Iowa, c/o Waterloo Regional Airport, whose address is 2790 Livingston Lane, Waterloo, Iowa ("Landlord"). Tenant and Lender have entered into or are about to enter into a loan transaction ("Loan") whereby Lender has acquired or will acquire a security interest or other lien on Tenant's leasehold interest in the Property described in Exhibit A attached hereto. To induce Lender to extend the Loan or other financial accommodations to Tenant to be secured by Tenant's leasehold interest in the Property and for other valuable consideration, with knowledge that Lender is relying thereon, Landlord and Tenant hereby agree with Lender as follows: I . LEASE. Landlord has leased the Property to Tenant pursuant to a Ground Site Lease Agreement dated December 30, 2019 (the "Lease"), which is and exhibit to the Development Agreement between the City of Waterloo, Iowa and Tenant dated December 30, 2019 and recorded on October 5, 2020 as Pile No. 2021-00007232 in the records of the Black hawk County, Iowa Recorder. The following Information is a summary of the basic terms and conditions of the Lease: a. Initial term from January 1, 2020 through December 31, 2059. b. Two (2) five (5) year renewal options. c. To be used for private aircraft storage and maintenance, d. No security deposit. 2. ESTOPPEL. Landlord and Tenant hereby jointly and severally certify, represent and warrant to Lender that a. The Lease (i) has been duly executed and accepted by Landlord and Tenant, (ii) is in full force and effect, and (iii) has not been modified or changed, either in writing or orally, except as reflected in the copy of the Lease provided to Lender, b. As of the date of this Certificate, (i) all conditions and obligations to be performed by either Landlord or Tenant under the Lease to the date hereof have been satisfied; (ii) there exists no breach, default, or event or condition which, with the giving of notice or the passage of time, or both, would constitute such a breach or default under the Lease; and (iii) there are no existing claims, defenses or offsets against obligations of either Landlord or Tenant under the Lease, including any against rents due or to become due I(1'/a7rA 1 A rctcv1 under the terms of the Lease. c. The Lease constitutes the entire agreement between Landlord and Tenant with respect to the Lease of the Property. d. No deposits or prepayments of rent have been made in connection with the Lease, except as may be described above in the summary description of the Lease. 3. AGREEMENTS. Landlord and Tenant hereby jointly and severally agree with Lender that, during all such times as Lender is the beneficiary of the leasehold mortgage covering Tenant's interest in the Property: a. Modification. Landlord and Tenant will not consent to any modification, termination or cancellation of the Lease unless Lender first consents thereto in writing. b. Default. Landlord will notify Lender in writing concurrently with any notice given to Tenant of any breach or default on the part of Tenant under the Lease, and Landlord agrees that Lender shall have the right (but not the obligation) to cure any breach or default specified in such notice within the time periods set forth below and Landlord will not declare a default of the Lease, if Lender cures such default within thirty (30) days from and after expiration of' the time period provided in the Lease for the cure thereof by Tenant; provided, however, that if such default cannot with diligence be cured by Lender within such thirty (30) day period, the commencement of action by Lender within such thirty (30) day period to remedy the same shall be deemed sufficient so long as Lender pursues such cure with diligence. c. Consent to Leasehold Mortgage. Landlord hereby consents to Lender's Leasehold Mortgage on Tenant s interest under the Lease and the leasehold estate created thereby, including any improvements made thereto, and acknowledges that such Leasehold Mortgage shall not impose any obligation Lender or any other mortgagee under any leasehold mortgage unless and until such mortgagee shall succeed to Tenant's interest under the Lease through foreclosure or otherwise. d. Subordination. Landlord acknowledges and agrees that the Lease shall be sub,'ectto and subordinate in right, interest, and lien to the Lender's Leasehold Mortgage on Tenant's interest in the Lease and all buildings, improvements, and fixtures that comprise the Propertybutnot the land that comprises the Property, in an amount not to exceed $2,248,000.00. e. Attornment. If Lender takes possession ofthe Lease or the Property, either as the result of foreclosure of the Lender's Mortgage or assignment ofthe Lease in lieu of foreclosure of the Lender's Mortgage, or otherwise, or the Lease shall be purchased at such a foreclosure by a third party, the Landlord shall attom to the Lender or such third party and recognize the Lender or such third party as the Tenant under the Lease, andthe Lender or such thirdparty will recognize and accept the Landlord as its Landlord thereunder, whereupon the Lease shall continue in full force and effect as a direct lease between the Landlord and the Lender or such third party for the full term thereof, together with all extensions and renewals thereof, and the Lender or such third party shall thereafter assrune andperform all ofthe Tenant's obligations under the Lease with the same force and effect as if the Lender or such third party were originally named therein as the Tenant, provided the Leased Premises 1n1O1CA1A nnrvi and/or Improvements (as definedintheLease) are used for purposes permitted under the Lease. f. Liability of Lender. In the event of attornment, Lender shall have the same remedies in the event of my default by Landlord (beyond any period given Landlord to cure such default) in the performance of any terms, covenants, and conditions of the Lease on Landlord's part to be performed that are available to Tenant under the Lease. Landlord shall have the same remedies against Lender for the breach of any agreement contained in the Lease that Landlord might have had against Tenant if Lender had not succeeded to the interest of Tenant; provided the Lender shall not be: i. Liable for any act or omission of or any claims against anyprior tenant, including Tenant; or ii. Subject to any offsets or defenses which Landlord might have against any prior tenant, including Tenant; or iii. Bound by any amendment or modification of the Lease, or awaiver or any of its terms made without Lender's consent; or iv. Bound by any surrender, cancellation, or termination of thc Lease, in whole or in part, agreed upon between Landlord and Tenant; or v. Liable for any construction obligation of any prior tenant, including Tenant; or vi. Liable for any breach or representation or warranty of any prior tenant, including Tenant; or g. New Lease. If Lender shall succeed to the interest ofthe Tenant under theLease, upon the written request of Lender to Landlord, Landlord shall execute and deliver to Lender a lease of the Property upon the same terms and conditions as the Lease between Landlord and Tenant, which lease shall cover any unexpired term of the Lease existing prior to such transfer. h. Acknowledgment and Agreement by Tenant. Tenant acknowledges and agrees for itself and its heirs, successors, and assigns to each of the following: i. This Certificate does not in any way release Landlord from its obligations to comply with the terms, provisions, conditions, covenants, agreements and clauses of Lender's Leasehold Mortgage. ii. In the event of a default under the Loan, or any of the other documents executed in connection with the Loan, Tenant hereby consents to Landlord's attomment to Lender, 4. MISCELLANEOUS PROVISIONS. This Certificate shall extend to and bind the respective heirs, personal representatives, successors and assigns of the parties to this Certificate and shall be governed by and construed in accordance with the laws of the State of Iowa, If Landlord is other than an individual, any agent or other person executing this Certificate on behalf of Landlord represents and warrants to Lender that he or she has full power and authority to execute this Certificate on Landlord's behalf. Lender shall not be deemed to have waived any rights under this Certificate unless such waiver is in writing and signed by Lender. No delay or omission on the part of Lender in exercising any right shall operate as a waiver of such right or any other right. A waiver by Lender of a provision of this Certificate shall not constitute a waiver JM07SAIA nnrvr of or prejudice Lender's right otherwise to demand strict compliance with that provision or any other provision. 5. TENANT AND LANDLORD EACH ACKNOWLEDGE HAVING READ ALL THE PROVISIONS OF THIS LANDLORD ESTOPPEL CERTIFICATE, AND EACH AGREES TO ITS TERMS. TIIIS CERTIFICATE IS DATED FEBRUARY 15 , 2021. TENANT ACKNOWLEDGES RECEIPT OF A COMPLE IED COPY OF THIS LANDLORD ESTOPPEL CERTIFICATE AND ALL OTHER DOCUMENTS RELATING TO THE LOAN. TENANT: OSPREY AVIATION, LLC Bv: i� fael� Peter , President LANDLORD: CITY OF WATERLOO, IOWA c/o WATERLOO REGIONAL AIRPORT By: u2„..,zil11-,1 HGr4 Mayor LENDER: COMMUNITY BANK & TRUST fn10.-7�n1A nrlr-vt • LANDLORD CONSENT TO LEASEHOLD MORTGAGE AND ESTOPPEL CERTIFICATE THIS LANDLORD CONSENT TO LEASEHOLD MORTGAGE AND ESTOPPEL CERTIFICATE dated February 15, 2021 ("Certificate"), is made and executed among Osprey Aviation, LLC, whose address is 1710 Adams Street, Cedar Falls, IA 50316 ("Tenant"), Community Rank & Trust, whose address is 422 Commercial Street, Waterloo, 50701 ("Lender"), and the City of Waterloo, Iowa, c/o Waterloo Regional Airport, whose address is 2790 Livingston Lane, Waterloo, Iowa (`Landlord"). Tenant and Lender have entered into or are about to enter into a loan transaction (`Loan') whereby Lender has acquired or will acquire a security interest or other lien, on Tenant's leasehold interest in the Property described in Exhibit A attached hereto. To induce Lender to extend the Loan or other financial accommodations to Tenant to be secured by Tenant's leasehold interest in the Property and for other valuable consideration, with knowledge that Lender is relying thereon, Landlord and Tenant hereby agree with Lender as follows: 1. LEASE, Landlord has leased the Property to Tenant pursuant to a Ground Site Lease Agreement dated December 30, 2019 (the "Lease"), which is and exhibit to the Development Agreement between the City of waterloo, Iowa and Tenant dated December 30, 2019 and recorded on October 5, 2020 as File No. 2021,-00007232 in the records of the Black Hawk County, Iowa Recorder. The following Information is a summary of the basic terns and conditions of the Lease: a. Initial term from January 1, 2020 through December 31, 2059. b. Two (2) five (5) year renewal options, c. To be used for private aircraft storage and maintenance, d. No security deposit. 2, ESTOPPEL, Landlord and Tenant hereby jointly and severally certify, represent and warrant to Lender that a. The Lease (1) has been duly executed and accepted by Landlord and Tenant, (11) is in full force and effect, and (iii) has not been modified or changed, either in writing or orally, except as reflected in the copy of the Lease provided to Lender. b, As of the date of this Certificate, Ci) all conditions and obligations to be performed by either Landlord or Tenant under the Lease to the date hereof have been satisfied; (ii) there exists no breach, default, or event or condition which, with the giving of notice or the passage of tl ne, or both, would constitute such a breach or default under the Lease; and (iii) there are no existing claims, defenses or offsets against obligations of either Landlord or Tenant under the Lease, including any -against rents due or to become due I(11Q7KA 1 A ff(Y1 under the terms of the Lease. c. The Lease constitutes the entire agreement between Landlord and Tenant with respect to the Lease of the Property. d. No deposits or prepayments of rent have been made in connection with the Lease, except as may be described above in the summary description of the Lease 3. AGREEMENTS. Landlord and Tenant hereby jointly and severally agree with Lender that, during all such tinges as Lender is the beneficiary of the leasehold mortgage covering Tenant's interest in the Property a. Modification. Landlord and Tenant will not consent to any modification, termination or cancellation of the Lease unless Lender first consents thereto in writing. b. Default. Landlord will notify Lender in writing concurrently with any notice given to Tenant of any breach or default on the part of Tenant under the Lease, and Landlord agrees that Lender shall have the right (but not the obligation) to cure any breach or default specified in such notice within the time periods set forth below and Landlord will not declare a default ofthe Lease, if Lender cures such default within thirty (30) days from and after expiration of the time period provided in the Lease for the cure thereof by Tenant; provided, however, that if such default cannot with diligence be cured by Lender within such thirty (3 0) day period, the commencement of action by Lender within such thirty (30) day period to remedy the same shall be deemed sufficient so long as Lender pursues such cure with diligence. c. Consent to Leasehold Mortgage. Landlord hereby consents to Lender's Leasehold Mortgage on Tenant s interest under the Lease and the leasehold estate created thereby, including any improvements made thereto, and acknowledges that such Leasehold Mortgage shall not impose any obligation Lender or any other mortgagee under any leasehold mortgage unless and until such mortgagee shall succeed to Tenant's interest under the Lease through foreclosure or otherwise. d. Subordination. Landlord acknowledges and agrees that the Lease shall be subj ectto and subordinate in right interest, and lien to the Lender's Leasehold Mortgage on Tenant s interest in the Lease and all buildings improvements, a nd fixtures that comprise the Propertybutnotthe land that comprises the Property, in an amount not to exceed $2,248,000 00. e Attornrnent. If Lender takes possession ofthe Lease or the Property, either as the result offoreclosure ofthe Lender's Mortgage or assignment ofthe Lease in lieu of foreclosure ofthe Lender's Mortgage or otherwise, ortheLease shall be purchased at such a foreclosure by a third party, the Landlord shall attorn to the Lender or such third party and recognize the Lender or such third party as the Tenant under the Lease, andthe Lender or such thirdparty will recognize and accept the Landlord as its Landlord thereunder whereupon the Lease shall continue in full force and effect as a direct lease between the Landlord and the Lender or such third party for the full term thereof, together with all extensions and rem; als thereof, andthe Lender or such third party shall thereafter assume andperform all ofthe Tenant's obligations underthe Lease with the same force and effect as if the Lender or such third party were originally named theretnas the Tenant, provided the Leased Premises lrrnaicA1A nnrvl and/or Improvements (as definedintheLease) are used for purposes permitted under the Lease. f. Liability of Lender, In the event of attornment, Lender shall have the same remedies in the event of any default by Landlord (beyond any period given Landlord to cure such default) in the performance of any terms, covenants, and conditions of the Lease on Landlord's part to be performed that are available to Tenant under the Lease. Landloid shall have the same remedies against Lender for the breach of any agreement contained in the Lease that Landlord might have had against Tenant if Lender had not succeeded to the interest of Tenant; provided the Lender shall not be: Liable for any act or omission of or any claims against anyprior tenant, including Tenant or ii Subject to any offsets or defenses which Landlord might have against any prior tenant, including Tenant; or Bound by any amendment or modification of the Lease, or a waiver or any of its terms made without Lender's consent' or iv Bound byany surrender, cancellation, or termination of the Lease, inwhole or in part, agreed upon between Landlord and Tenant; or v Liable for any construction obligation of any prior tenant, including Tenant; or vi. Liable fox any breach or representation or warranty of any prior tenant, including Tenant or g. New Lease. If Lender shall succeed to the interest ofthe Tenant under theLease, upon the written request offender to Landlord, Landloid shall execute and deliver to Lender a lease of the Property upon the same terms and conditions as the Lease between Landlord and Tenant, which lease shall cover any unexpired term of the Lease existing prior to such transfer. h. Acknowledgment and Agreement by Tenant. Tenant acknowledges and agrees for itself and its heirs, successors, and assigns to each of the following: i This Certificate does not in any way release Landlord from its obligations to comply with the terms, provisions, conditions, covenants, agreements and clauses of Lender's Leasehold Mortgage. ii. In the event of a default under the Loan, or any of the other documents executed in connection with the Loan, Tenant hereby consents to Landlord's attornment to Lender, 4. MISCELLANEOUS PROVISIONS. This Certificate shall extend to and bind the respective heirs, personal representatives, successors and assigns of the parties to this Certificate and shall be governed by and construed in accordance with the laws of the State of Iowa If Landlord is other than an individual, any agent or other person executing this Certificate on behalf of Landlord represents and warrants to Lender that he or she has full power and authority to execute this Certificate on Landlord's behalf Lender shall not be deemed to have waived any rights under this Certificate unless such waiver is in writing and signed by Lender. No delay or omission on the part of Lender rn exercising any right shall operate as a waiver of such right or any other right. A waiver by tender of a provision of this Certificate shall not constitute a waiver ---- 1f1)R7RA1 n nnrvi of or prejudice Lender's right otherwise to demand strict compliance with that provision or any other provision. 5. TENANT AND LANDLORD EACH ACKNOWLEDGE HAVING READ ALL THE PROVISIONS OF THIS LANDLORD ESTOPPF,L CERTIFICATE, AND BACl AGREES TO ITS TERMS. '11llS CER.TI F ICA'I'L' IS DATED FEBRUARY , 2021. TENANT ACKNO TLED GHS REC K- IPT OF A COMPLETED COPY OF THIS LANDLORD ESTOPPEL CERTIFICATE AND ALL OTHER DOCUMENTS RELATING TO THE LOAN, TENANT: OSPREY AVIATION, LLC lae . ' eter President LANDLORD: CITY OF WATERLOO, IOWA c/o WATERLOO REGIONAL AIRPORT LENDER: CO ITY BANK & TRUST • Jn1 O1EA 1 A nnr vt •