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HomeMy WebLinkAboutC09-385 Estoppel Certificate VVJC LeaseholdESTOPPEL CERTIFICATE ~ ~~ This Estoppel Certificate (this "Certificate") is executed as of the day of P.' , 2009, 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 I. County Ownership and Control A. The County owns and controls the Eagle County Regional Aiiport (the "Airport") located between the towns of Eagle and Gypsum in the County of Eagle, State of Colorado. II. Howard Air Services A~reement A. The County and Howard Air Services, Inc., a Colorado corporation ("HAS"), entered into the Fixed Base Operator Concession Agreement and Lease, dated August 1, 1986 (the "Original Howard Agreement"). The Original Howard Agreement was recorded in the records of the Clerk and Recorder of Eagle County, Colorado (the "Official Records") on June 3, 1987, in Book 463 at Page 756 as Reception No. 359982. B. The Original Howard Agreement was amended and supplemented by the following: i. Addendum #1 to Fixed Base Operator Concessions Agreement and Lease Agreement, dated August 4, 1986, also recorded in the Official Records at Book 463 at Page 756; ii. Supplemental Agreement Regarding Offsetting Payments, dated March 16, 1987; iii. Lease Addendum and Modification, dated June 10, 1987, recorded June 10, 1987 in the Official Records in Book 464 at Page I55; and iv. Second Amendment and Modification to Fixed Base Operator Concession Agreement and Lease, dated June 29, 1987. C. HAS assigned the Original Howard Agreement, with the amendments and supplements described above (all together, the "VBCJC Agreement"), to Vail Beaver Creek Jet Centei•, Inc., a Delaware corporation ("VBCJC"). The County consented to that assignment by the Estoppel Certificate and Consent dated July 26, 1988. D. The VBCJC Agreement was amended by the following: i. First Amendment to Fixed Base Operator Concession Agreement and Lease, dated July 26, 1988, recorded in the Official Recards in Book 488 at Page 549; 4724\124\I?92693 ? C,C 1' ~~~ ii. Third Amendment to Fixed Base Operator Concession Agreement and Lease, dated November 15, 1988; and iii. Fourth Amendment to Fixed Base Operator Concession Agreement and Lease, effective November 1, 1990. E. VBCJC assigned the VBCJC Agreement, amended as described in paragraph D of this Part II above, to Fixed Base Operators, Inc., a Delaware corporation d/b/a VailBeaver Creek Jet Center, Inc ("FBO"). The County's consent to that assignment is memorialized in the Estoppel Certificate and Consent dated as of August I5, 1994. F. The VBCJC Agreement was further amended by the following: i. Fifth Amendment to Fixed Base Operator Concession and Lease Agreement dated October 10, 1995, between the County and FBO (the "Fifth Amendment")' ii. Sixth Amendment to Fixed Base Operator Concession and Lease Agreement effective January 20, 1998, and recorded on February 3, 1998, at Reception No. 646220 of the Official Records, whereby the VBCJC Agreement was assigned to Vail Valley Jet Center, LLC ("VVJC"); iii. Agreement to Purchase Right to Operate Commercial Terminal and Seventh Amendment to Concession Agreement and Lease dated September 25, 2000, by and among VVJC, Eagle County and the Eagle County Air Termination Corporation, as recorded on September 26, 2000, at Reception No. 740143 of the Official Records; iv. Eighth Amendment to Fixed Base Operator Concession and Lease Agreement dated January 13, 2004, and recorded on February 3, 2004, at Reception No. 866616 of the Official Records; v. Ninth Amendment to Fixed Base Operator Concession and Lease Agreement dated June 29, 2004, and recorded on July 2, 2004, at Reception No. 882767 of the Official Records; and vi. Tenth Amendment to Fixed Base Operator Concession and Lease Agreement dated September 19, 2006. G. The VBCJC Agreement, as amended and supplemented by the documents described in paragraphs D through F of this Part II above, is referred to herein as the "Howard Agreement." H. The premises currently leased by VVJC under the Howard Agreement is described on Exhibit A attached hereto and made a part hereof. III. Mountain Flying Services Agreement A. The County and Mountain Flying Services, Inc., a Colorado corporation ("MFS"), ente-•ed into the Fixed Base Operator Concession Agreement and Lease dated September 24, a~2a~i24~iz9z693 ? 2 1986 (the "Original MFS Agreement"). The Original MFS Agreement was amended and supplemented by the following: i. Amendment to Fixed Base Operator Concession Agreement and Lease, dated July 26, 1988, between the County and MFS; ii. First Amendment to Fixed Base Operator Concession Agreement and Lease, dated July 26, 1988, between the County and VBCJC, as assignee of MFS; and iii. Second Amendment to Fixed Base Operator Concession Agreement and Lease, dated October 24, 1988, between the County and VBCJC. B. VBCJC assigned the Original MFS Agreement, amended as described in paragraph A of this Part III above, to FBO. The County's consent to that assignment is memorialized in the Estoppel Certificate and Consent dated as of August 15, 1994. C. The legal description of the property covered by the Original MFS Agreement, amended as recited above, was corrected by the Fifth Amendment. D. The Original MFS Agreement, with the amendments and correction described in this Part III above, is referred to as the "MFS Agreement." E. The premises currently leased by VVJC under the MFS Agreement is described on Exhibit B attached hereto and made a part hereof. IV. Financin~by Vail Valley Jet Center LLC A. VVJC previously obtained a loan or loans in the aggregate maximum principal amount of $16,000,000 (the "Loan") from U.S. Bank National Association ("Lender"), which Loan is secured by: (i) that certain Deed of Trust with Assignment of Rents and Security Agreement and Fixture Filing from VVJC for the benefit of Lender, dated January 20, 1998, and i•ecorded on January 22, 1998, at Reception No. 645229 of the Official Records, as amended by First Amendment to Deed of Trust with Assignment of Rents and Security Agreement and Fixtui•e Filing dated May 2, 2001, and recorded June 8, 2001, at Reception No. 759142 of the Official Records, and as may be subsequently amended (collectively, the "Deed of Trust"); and (ii) that certain Assignment of Concession Agreement, Leases and Rents from VVJC to Lender dated January 20, 1998, and recorded on January 22, 1998, at Reception No. 645230 of the Official Records, as amended by First Amendment to Assignment of Concession Agreement, Leases and Rents dated May 2, 2001, and recorded June 8, 2001, at Reception No. 759143 of the Official Records, and as may be subsequently amended (collectively, the "Concession Agreement Assignment"). B. VVJC and Lender have agreed to modify the Loan to, among other things, extend the maturity date, which modification will be evidenced by a Second Amendment to Deed of Trust with Assignment of Rents and Security Agreement and Fixture Filing and Second Amendment to Assignment of Concession Agreement, Leases and Rents (the "Loan Modification"). a~za~ i~a~ i zyzby s.~ 3 C. VVJC has requested that the County provide this Estoppel Certificate to Lender in connection with the Loan Modification. AGREEMENT NOW, THEREFORE, for good and valuable consideration received by the County, the receipt and sufficiency of which are hereby acknowledged, the County represents, covenants and agrees as follows: 1. The County acknowledges that the Howard Agreement is in full force and effect and that, except as noted in Recital II above, there have been no amendments, modifications, supplements, waivers, renewals or extensions to the Howard Agreement. 2. To the best of the County's knowledge, no default exists under the Howard Agreement, and no fact or circumstance presently exists which, with the giving of notice or the passage of time, or both, would constit~ite a default under the Howard Agreement. 3. The County acknowledges that the MFS Agreement is in full force and effect and that, except as noted in Recital III above, there have been no amendments, modifications, supplements, waivers, renewals or extensions to the MFS Agreement. 4. To the best of the County's knowledge, no default exists under the MFS Agreement and no fact or circumstance presently exists which, with the giving of notice or the lapse of an applicable cure period, or both, would constitute a defa~ilt under the MFS Agreement. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] [SIGNATURES ON FOLLOWING PAGE] 4724\124\1392693 ? 4 IN WITNESS WHEREOF, the County has signed this Certificate the year and date first above written. COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its BOARD OF COUNTY COMMISSIONERS ATTEST: ~ ~~~ - o co B y: ~ ~ ~ -~ ~e * Clerk of the Bo~ of County o~oR~oo Commissioners 13~{'. _- - - i llK.1~~ i ~ STATE OF COLORADO ) ) SS. COUNTY OF EAGLE ) he foregoing instrument wa subscribe a c~ sworn to before me this ~~ day of , 2009, by ~~(~.•, {~~j{~1~ as Chairman of the Board of County Commissioners. Witness my hand and official seal. My commission expires: ~~ ~~' ~~ ~ ( _...., DEBORAH L CHURCHILL ~!~ Notary Public ~~~ / .~~~ State of Colorado ~~ Notary Public My Commlulon Ef~plflw ~~aruerY t~, 20~ t 4724\124\1292693.2 5 TERM SHEET 1 Re uested hearin d ~ ) q ~ ate: September 1, 2009 2) For County Mana~er si~nature: No 3) Requestin~ department: Attorney 4) Title: Estoppel Certificate 5) Check one: Consent: _XX_ On the Record: 6) Staff submittin~: County Attorney Repre~sentative 7) Purpose: To acknowledge the existing leasehold with Vail Valley Jet Center to assist in their re~nancing 8) Schedule: NA 9) Financial considerations: Contract amount? N/A Has agreement amount been fully budgeted? N/A How much of the budgeted funds will remain after execution of this contract? Does agreement comply with Eagle County's Purchasing/Bidding/Request For Proposal guidelines set fortli in Resolution 2006-071? N/A If no, list in detail the reason for non-compliance including any exceptions set forth in Resolution 2006-072. List dollar amount of all bids and provide detail for your choice of vendor, including but not limited to, such items as price, quality, experience, local preference, etc. 10) Other: ~PP!~OV -D AS ~f UR ~ r ~~ Eagl ~unty Attorney's Office a~ ~~~ /•J . ~, i ~ ~y:_, _ caglE County Commissioner~' Office