No preview available
HomeMy WebLinkAboutC08-308 CME Second AmendmentCONSENT TO TRANSFER CONCESSIONAIRE AGREEMENT AND SECOND AMENDMENT FOR OPERATION OF GROUND TRANSPORTATION SERVICES BETWEEN EAGLE COUNTY AIR TERMINAL CORPORATION AND EAST WEST RESORT TRANSPORTATION LLC THIS Consent to Transfer Concessionaire Agreement and Second Amendment for Operation of Ground Transportation Services ("Consent to Transfer and Second Amendment') is made and entered into this ~ day of t5c.~o~tit... 2008 by and between the Eagle County Air Terminal Corporation ("ECAT"), East West Resort Transportation LLC d/b/a Colorado Mountain Express -CME and CME Premier, a Colorado Limited Liability Company ("CME"), and Delivery Acquisition, Inc., a Colorado Corporation with a business address of 390 Interlocken Crescent, Suite 1000, Broomfield, Colorado 80021 ("Delivery"). WHEREAS, on August 8, 2006, ECAT entered into an Agreement for Operation of Ground Transportation Services with CME ("Original Agreement") with a term commencing June 22, 2006 and terminating on November 22, 2007; WHERAS, said Original Agreement term was extended for one additional year commencing November 22, 2007 and scheduled to terminate on November 21, 2008; WHEREAS, CME is in the process of selling its assets to Delivery. As part of this transaction, CME desires to assign its interests in the Original Agreement to Delivery. WHEREAS, section 10.5 of the Original Agreement requires written consent of ECAT prior to such assignment; WHEREAS, CME and Delivery desire ECAT's consent to such transfer and an amendment to the Original Agreement extending the term for an additional year on the terms and conditions set forth herein; WHEREAS, ECAT has reviewed the request of CME and Delivery, including the submission of corporate, financial, insurance, collateral, experience and other matters deemed relevant and necessary in rendering its decision. NOW THEREFORE, in consideration of the terms and conditions of the Original Agreement, modifications, and amendments herein, the sufficiency of which is hereby acknowledged, ECAT, CME, and Delivery agree as follows: CONSENT ECAT hereby consents to the transfer of Original Agreement from CME to Delivery effective upon the execution of this Consent to Transfer and Second Amendment. Delivery shall assume all rights and obligations of CME under the Original Agreement and this Consent to Transfer and Second Amendment. . AMENDMENT SECTION 3.1 Term shall be deleted in its entirety and replaced with the following effective upon the execution of this Consent to Transfer and Second Amendment: "Section 3.1 Term. This Agreement shall become effective on 12:01 a.m. local time on November 22, 2008 and continue for one year, expiring on 12:01 a.m. local time on November 22, 2009 subject to prior termination as provided in Article 8 hereof. Notwithstanding the foregoing, upon the defeasance of the bonds issued by Corporation to finance acquisition or construction of the Terminal Building and related facilities and services, following maturity or earlier as provided in the Trust Indenture with respect to any Bonds this Agreement shall terminate, as of the date of defeasance, and CONCESSIONAIRE shall vacate the premises leased hereunder within not more than ninety (90) days. CORPORATION will give not less than thirty (30) and not more than sixty (60) days notice of an intent to defease the bonds in accordance with the Trust Indenture. CORPORATION also will give CONCESSIONAIRE notice of the date of defeasance within two (2) business days following the actual defeasance." SECTION 4.2 Privilege Fee shall be deleted in its entirety and replaced with the following effective upon the execution of this Second Amendment: "Section 4.2 Privilege Fee: For the concession privileges granted hereunder, and in addition to the charges paid for the premises described in Section 1.1 C and Subsection 4.1 hereof, CONCESSIONAIRE shall pay to CORPORATION: the Per Trip Fee in Subsection 4.2(b); and, beginning on Commencement of the Term and for each month designated thereafter, the Minimum Monthly Privilege Fee in Subsection 4.2(a) or the Per Trip Fee in Subsection 4.2(b), whichever sum is greater, as follows: A. Minimum Privilege Fees. A minimum monthly privilege fee, as follows: December 2008 Twenty Thousand Two Hundred Forty-six Dollars $20,246.00 January 2009 Thirty-eight Thousand One Hundred and Ten Dollars $38,110.00 February 2009 Thirty-eight Thousand One Hundred and Ten Dollars $38,110.00 March 2009 Thirty-eight Thousand One Hundred and Ten Dollars $38,110.00 April 2009 Twenty Thousand Two Hundred Forty-six Dollars $20,246.00 ECAT, CME and Delivery agree that, except as expressly altered, modified and changed in this Consent to Transfer and Second Amendment, all terms and provisions of the Original Agreement shall remain in full force and effect, and hereby are ratified and confirmed in all respects as of the date hereof. If any conflict exists between the provisions of this Consent to Transfer and Second Amendment and the Original Agreement, the provisions of this Consent to Transfer and Second Amendment shall control. This Consent to Transfer and Second Amendment shall be binding on the parties hereto, their heirs, executors, successors, and assigns. IN WITNESS WHEREOF, the parties have executed this Consent to Transfer and Second Amendment on the day and year first above written. CORPO TION: Eagl ou Air Terminal Corporation By. F enconi, President CME: East West esort Transportation LLC , by rest Z~eTe t Resort Transportation Holdings, LLC, its Ma ager by HF Holding Corp., its Manager By: Title: ~•~~. ~~'c.z5~J5~„~,; DELIVERY: Delivery Acquisition, Inc. By: Title: Thirty-eight Thousand One Hundred and Ten Dollars $38,110.00 Apri12009 Twenty Thousand Two Hundred Forty-six Dollars $20,246.00 ECAT, CME and Delivery agree that, except as expressly altered, modified and changed in this Consent to Transfer and Second Amendment, all terms and provisions of the Original Agreement shall remain in full force and effect, and hereby are ratified and confirmed in all respects as of the date hereof. If any conflict exists between the provisions of this Consent to Transfer and Second Amendment and the Original Agreement, the provisions of this Consent to Transfer and Second Amendment shall control. This Consent to Transfer and Second Amendment shall be binding on the parties hereto, their heirs, executors, successors, and assigns. IN WITNESS WHEREOF, the parties have executed this Consent to Transfer and Second Amendment on the day and year first above written. CORPO ION: Eagle ou it Terminal Corporation By: A nconi, President CME: East West Resort Transportation LLC By: Title: DELIVERY: Delivery Acquisition, Inc. ,1) By: ~/ ! ~ 1 1 Title: !~ y~ ~ l 'L' i ~c~i( (/.~C c~ ~! l