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HomeMy WebLinkAboutC13-157 Landlord Consent and Estoppel Certificate13 LANDLORD CONSENT AND ESTOPPEL CERTIFICATE THIS CERTIFICATE is made as of June 11, 2013. WITNESSETH: WHEREAS, by Sand and Gravel Mining Lease between Loren G. Chambers ( " Original Landlord ") and Flatiron Paving Company ( " First Tenant ") dated December 29, 1980; as modified by (i) Assignment and Assumption of Leasehold among Original Landlord, First Tenant and Mobile Premix Company ( " Second Tenant ") dated November 30, 1984; (ii) Modification to Sand and Gravel Mining Lease between Original Landlord and Second Tenant dated December 8, 1986, and recorded in the official records of the Clerk & Recorder of Eagle County at Book 454, Page 514; (iii) Assignment of Lease among Original Landlord, The County of Eagle (the " Landlord ") and Second Tenant dated December 8, 1986, and recorded in the official records of the Clerk & Recorder of Eagle County at Book 456, Page 596; (iv) Second Amendment to Sand and Gravel Mining Lease between Landlord and Western Mobile Pre -Mix Company (successor to Second Tenant) ( " Third Tenant ") dated July 21, 1997, but effective as of April 1, 1996; (v) Third Amendment to Sand and Gravel Mining Lease between Landlord and Western Mobile Northern, Inc. (successor to Third Tenant) ( " Fourth Tenant ") dated November 2, 1998; (vi) Fourth Amendment to Sand and Gravel Mining Lease between Landlord and Fourth Tenant dated March 20, 2001; (vii) Fifth Amendment to Sand and Gravel Mining Lease between Landlord and Lafarge West, Inc. (successor to Fourth Tenant) ( " Tenant ") dated March 21, 2006; (viii) Sixth Amendment to Sand and Gravel Mining Lease between Landlord and Tenant dated February 23, 2010; (ix) Seventh Amendment to Sand and Gravel Mining Lease between Landlord and Tenant dated October 12, 2010; (x) Eighth Amendment to Sand and Gravel Mining Lease between Landlord and Tenant dated January 31., 2012; and (xi) Ninth Amendment to Sand and Gravel Mining Lease between Landlord and Tenant dated January 29, 2013 (extends deadline for $2,175,000 capital funds payment and certain other obligations to 2014) (collectively, the " Lease "), Landlord leases to Lafarge West, Inc. certain property located in Eagle County, Colorado, as more fully described in said Lease (the "Pro pert ') for a term and upon the terms and conditions set forth in said Lease; and WHEREAS, Oldcastle SW Group, Inc. ( " Purchaser ") entered into an Asset Purchase Agreement with Lafarge West, Inc. dated as of May 2, 2013 (the " Purchase Agreement pursuant to which Purchaser has the right to acquire certain rights, properties and assets owned or held by Lafarge West, Inc. or used by Lafarge West, Inc. primarily related to Lafarge West, Inc.'s operations in Colorado as more particularly described in the Purchase Agreement (the " Acquisition "). Landlord understands that in connection with the Acquisition, Tenant requires Landlord's consent to the assignment of the Lease to Purchaser (the " Assignment '), and that Purchaser has requested an estoppel certificate certifying as to the facts set forth below. NOW, THEREFORE, Landlord hereby consents to the Assignment and certifies to Purchaser as follows: 1. Landlord, Tenant, and Purchase have received and reviewed true and complete copies of the Lease. The Lease is in full force and effect, Landlord has no knowledge of any default on the part of Landlord or Lafarge West, Inc., as tenant, under the Lease, no event has occurred that, with the delivery of notice, the passage of time or both, would constitute a breach or default under such Lease, and no amounts are past due under the Lease. 2. Lafarge West, Inc. is in possession of the Property and has subleased a portion thereof to Elam Construction, Inc. Except as disclosed in matters of record, no other parties have a right to possess, use, access or occupy any portion of the Property except portions of said Property are subject to a lease with the Western Eagle County Metropolitan Recreation District. lu 3. The Lease has not been changed, modified, amended or assigned except as described above. There are no agreements between Landlord and Lafarge West, Inc. or its affiliates regarding the Property or the Lease except as described above. 4. The term of the Lease with respect to excavation of the Expansion Area (as defined in the Lease) is through December 31, 2025, and the term of the Lease with respect to reclamation up to reseeding the Expansion Area is December 31, 2027. Tenant has no further options to extend the Lease. 5. The current production royalty rate is as follows: $1.75 /ton 6. Landlord's current notice address is: County of Eagle Attn: Rick Ullum, Eagle County Construction Manager PO Box 850 Eagle, CO 81631 Phone: 970 - 328 -8780 Fax: 970 - 328 -3539 7. Purchaser shall have the right to record against the Landlord's property a memorandum of Lease and of the assignment of the Lease to Purchaser in the real property records of the county in which the Property is located. The undersigned represents and warrants that s /he is a duly appointed representative of Landlord, authorized to deliver this Landlord Consent and Estoppel Certificate on behalf of Landlord. In this Landlord Consent and Estoppel Certificate, where there is a representation based on Landlord's knowledge, that representation is made solely upon the actual knowledge or awareness of the undersigned following such consultation with current staff as the undersigned has deemed appropriate. This Landlord Consent and Estoppel Certificate may be relied on by Purchaser and its title company, and their successors and assigns. IN WITNESS WHEREOF, the undersigned has executed this Landlord Consent and Estoppel Certificate the day and year first above written. COUNTY OF EAGLE, STATE OF COLORADO, by and Through Its ATTEST: � BOARD OF- C COM SIONERS �--,. � c4 � ti l z • v — By: Clerk to the Bo d of coiQP90 County Commissioners V;�'j.[ PYV fi 2