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Home My WebLink AboutC92-250 Estoppel Certificate and Consent C92-250--17 ESTOPPEL CERTIFICATE AND CONSENT THIS ESTOPPEL CERTIFICATE AND CONSENT (this "Certificate ") is executed as of the wg day of :December, 1992, by THE COUNTY OF EAGLE, STATE OF COLORADO, a body politic and corporate, acting by and through its Board of County Commissioners (the "County "). RECITALS A. The County owns, controls and operates the Eagle County Regional Airport (the "Airport ") located between the Towns of Eagle and Gypsum in the County of Eagle, State of Colorado. B. The County and Howard Air Services, Inc., a Colorado corporation ( "HAS ") entered into that certain Fixed Base Operator Concession Agreement and Lease, dated August 1, 1986, which agreement was supplemented by Addendum No. 1, dated August 4, 1986, both of which documents were recorded in the records of the Clerk and Recorder for Eagle County, Colorado ( "Official Records ") on June 3, 1987, in Book 463 at Page 756 at Reception No. 359982 (the "HAS Agreement "). The HAS Agreement was further amended and supplemented by: (i) a Lease Addendum and Modification, dated June 10, 1987, and by a Second Amendment and Modification, dated June 29, 1987; (ii) an Estoppel Certificate and Agreement, dated June 29, 1987, executed by the County and recorded in the Official Records on July 1, 1987, in Book 465 at page 379 at Reception No. 361603; (iii) a First Amendment to Fixed Base Operator Concession Agreement and Lease, dated July 26, 1988, recorded in the Official Records in Book 488 at Page 549; (iv) a Third Amendment to Fixed Base Operator Concession Agreement and Lease, dated November 15, 1988, recorded or to be recorded in the Official Records, which Third Amendment, among other things, revoked the First Amendment and the Second Amendment in their entirety and (v) a Fourth Amendment to Fixed Base Operator Concession Agreement and Lease, dated November 1, 1990. The HAS Agreement, as supplemented and modified, shall hereinafter be referred to as the "HAS Agreement." C. The County and Mountain Flying Services, Inc., a Colorado corporation ( "MFS "), entered into that certain Fixed Base Operator Concession Agreement and Lease, dated September 24, 1986 (the "MFS Agreement "). The MFS Agreement was amended and supplemented by (i) an Amendment to Fixed Base Operator Concession Agreement and Lease, dated as of July 26, 1988, between the County and MFS, and (ii) a First Amendment to Fixed Base Operator Concession Agreement and Lease, dated July 26, 1988, between the County and Vail Beaver Creek Jet Center, Inc., a Delaware corporation ( "VBC "). The MFS Agreement, as supplemented and modified, shall hereinafter be referred to as the "MFS Agreement." D. HAS conveyed all its rights, title and interest in and to the HAS Agreement to VBC. Similarly, MFS conveyed all its 21706.1 BCA 12/09/92 10:58 am • • rights, title and interest in and to the MFS Agreement to VBC. The County consented to such conveyances. E. With the consent of the County, VBC has assigned to Fixed Base Operators, Inc., a Delaware corporation ( "FBO "), all of its interest in the HAS Agreement and the MFS Agreement (collectively, the "Agreements "), and FBO has been accepted by the County as the party to the Agreements in VBC's stead. F. FBO has applied to Continental Bank N.A. ( "Lender ") for a mortgage loan relating to the demised premises; in connection therewith, FBO is executing and delivering to Lender certain instruments and documents including: (i) A Credit Agreement between FBO and Lender substantially in the form appended hereto as Exhibit A. (ii) A Promissory Note made by FBO to the order of Lender in the maximum principal amount of $3,300,000 and substantially in the form appended hereto as Exhibit B. (iii) A Security Agreement between FBO and Lender, substantially in the form appended hereto as Exhibit C -1 and a Mortgage substantially in the form appended hereto as Exhibit C -2. (iv) Certain Uniform Commercial Code financing statements evidencing the security interests granted under the provisions of the above - described instruments and documents. The instruments and documents referred to in this Paragraph F are collectively hereinafter referred to as the "Loan Documents." G. Lender will provide such financing only in the event that the County provides certain assurances to Lender regarding the Loan Documents. NOW, THEREFORE, for good and valuable consideration received by the County, the receipt and sufficiency of which are hereby acknowledged, and in order to induce Lender to provide the aforesaid loan to FBO, the County represents, covenants and agrees as follows: 1. The County consents to each of the Loan Documents, and the exercise by Lender of its rights and remedies pursuant thereto, and without limitation, agrees that the Loan Documents are in compliance with all conditions, requirements and limitations set forth in the Agreements. The exercise by Lender of its rights and remedies pursuant to the Loan Documents will not constitute a breach, violation or default under the Agreements. 2. The County recognizes and acknowledges that Lender, in closing and funding its loan to FBO, will rely on the representations, covenants and agreements of the County set forth 21706.1 BCA 12/09/92 10:58 am -2- . • • herein, and it is understood and agreed that the rights and privileges of Lender hereunder will be assignable by Lender under the terms of the Loan Documents. 3. Each of the rights afforded to FBO under each of the HAS Agreement and MFS Agreement to assign, transfer, encumber, pledge and otherwise hypothecate its leasehold estate in and to the respective demised premises shall also apply to the concessions granted to FBO under the provisions of Article One of the HAS Agreement and Article One of the MFS Agreement. In the event of foreclosure or other exercise by Lender of its rights under the instruments securing such loan, Lender or any other purchaser at a foreclosure sale shall be entitled to acquire and hold the concessions and to subsequently assign the same to a party or parties who acquire FBO's leasehold estate in the demised premises and who satisfy all requirements of law applicable to the operation of a fixed base operation at the Airport. Such subsequent assignment shall be with the consent of the County required under the provisions of Article Fifteen of the HAS Agreement and Article Fifteen of the MFS Agreement, which consent shall not be unreasonably withheld. However, notwithstanding the provisions of Article Fifteen of the HAS Agreement and Article Fifteen of the MFS Agreement, no consent by the County shall be required in connection with an assignment of the HAS Agreement or MFS Agreement to the Lender or purchaser at a foreclosure sale arising out of a foreclosure or deed in lieu of foreclosure. Nothing in this paragraph shall prevent the County from exercising the right to take possession of and to operate the demised premises and related personal property as a fixed base operation in the event of default and /or pending the commencement of operation of the concession by Lender, by any purchaser at a foreclosure sale, or. by Lender's or purchaser's assignee. IN WITNESS WHEREOF, the County has executed this Certificate as of the day and year first above written. ova/ y -,.-q co t o COUNTY OF EAGLE, STATE OF COLORADO, -• and Through Its 3 S BOARD •F CO Y COMMISSIONERS #. ST: By : G am' " B‘ . t -- /� ✓G / � lerk of the Board of County Commissioners If 21706.1 BCA 12/09/92 10:58 am -3- • • STATE OF COLORADO ) CITY AND ) ss COUNTY OF DENVER The foregoirlg f was acknowledged before e this day of December, 1992 by Oe, 4w1 ,(. aim-7/4 -, s o� asQc, bt s/r ea f1 , !' , d,r6 / of the Board of County Commissioners, County of Eagl State o Colorado. WITNESS my hand and official seal. My commission expires 0 Z /eyf9.3 c= e(„4„(/ Notaryfublic �U STATE OF COLORADO ) ss COUNTY OF EAGLE The foregoing was acknowledged before me this 9 day of December, 1992 by /f y hn r f',- P y / / ./zs as Clerk of the Board of County Commissioners, County of Eagle, State of Colorado. WITNESS my hand and official seal. My commission expires i% /9 /77 . Notary Public 21706.1 BCA 12/09/92 10:58 am -4- • • Exhibits A, B, C -1, and C -2 are to large to copy everyone. If needed, you can find them in Attorney Office File 6 -A -11 in subfile titled "Estoppel Certificate and Consent ".