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HomeMy WebLinkAboutMcCormick Aircraft Hangars/Banner Bank - Landlord's Estoppel and ConsentLANDLORD'S ESTOPPEL AND CONSENT THIS LANDLORD'S ESTOPPEL AND CONSENT is entered into among McCormick Aircraft Hangars, L.L.C. ( "Borrower "), whose address is 161 Mapleway Road, Selah, WA 98942; Banner Bank ( "Lender "), whose address is Yakima Commercial Banking Center, 502 W. Yakima Ave., Yakima, WA 98902; and Yakima Air Terminal — McAllister Field ( "Landlord "), whose address is 2400 West Washington Avenue, Yakima, WA 98903. Borrower and Lender have entered into, or are about to enter into, an agreement whereby Lender has acquired or will acquire a security interest or other interest in the Collateral (defined below). Some or all of the Collateral may be affixed or otherwise become located on the Premises. To induce Lender to extend the Loan to Borrower against such security interest in the Collateral and for other valuable consideration, Landlord hereby agrees with Lender and Borrower as follows: COLLATERAL DESCRIPTION. For purposes of this Agreement, "Collateral" means all non - fixture personal property of Borrower in which Lender has acquired or will acquire a security interest. ESTOPPEL. Landlord and Borrower hereby jointly and severally represent to Lender that: a) Lease in Effect. The ,Lease (i) has been duly executed and accepted by Landlord and Borrower, (ii) is in full force and effect, and (iii) has not been modified or changed, whether in writing or orally, except as reflected in the copy of the Lease provided to Lender. (b) No Default: As of the date of this Agreement, (i) all conditions and obligations to be performed by either Landlord or Borrower under the Lease, to the date hereof, have been satisfied; (ii) there exists no breach, default, or event or condition which, 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 Borrower under the Lease, including any against rents due or to become due under the terms of the Lease. (c) Entire Agreement. The Lease constitutes the entire agreement between Landlord and Borrower with respect to the Lease of the Property. BORROWER'S ASSIGNMENT OF LEASE. Borrower hereby assigns to Lender all of Borrower's rights in the Lease (including all amendments and renewals thereof), as partial security for the Loan. The parties intend that this assignment will be a present transfer to Lender of all of Borrower's rights under the Lease, subject to Borrower's rights to use the Premises and enjoy the benefits of the Lease while not in default on the Loan or Lease. Upon full performance by Borrower under the Loan, this assignment shall be ended, without the necessity of any further action by any of the parties. Until the Loan is paid in full, Landlord and Borrower will not consent to any termination or cancellation of the Lease unless Lender is first notified thereof in writing. No amendments may be made to the Lease without Lender's prior written consent, which shall not be unreasonably withheld or delayed. CONSENT OF LANDLORD. Landlord consents to the above assignment. If Borrower defaults under the Loan or the Lease, Lender may reassign the Lease upon 10 business days' notice to and written consent of Landlord, provided that any default under the Lease is cured prior to such assignment and the assignee agrees to use the Premises only for aeronautically oriented activity under the same terms and conditions granted the Borrower under the lease. Page 1 BANNER -LD154 \00040629.002 LEASE DEFAULTS. Landlord will notify Lender in writing within 30 days of any breach or default' on the part of Borrower under the Lease, and Landlord agrees that Lender, its agents or assigns shall have the right (but not the obligation) to cure any breach or default specified in such notice within the time periods set forth in the Lease, but in no instance shall the time to cure said default or breach be less than 30 days from notice to Lender. Landlord will not declare a default of the Lease if Lender, its agents or assigns, cures such default within thirty (30) days from and after expiration of the time period provided in the Lease for the cure thereof by Borrower; provided, however, 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, except in the case of default for non - payment of the Lease. All monetary defaults shall be cured within such thirty (30) day period. Lender agrees to notify Landlord of its intent to cure default or breach within the period described above or abandon its right to cure such default or breach. In the event that Lender does cure the default or breach for Borrower, the Lender, its agents or assigns must qualify under the Lease to assume and to operate the Lease on the terms and conditions granted Borrower under the Lease; provided, however, that the Lender shall be released from all further obligations under the Lease upon assignment of the Lease to an assignee acceptable to Landlord, under the terms and conditions set forth in the Lease. If Lender elects not to cure the default, Lender shall continue to have the right of entry to the Premises to remove the Collateral as set forth below. SUBORDINATION OF INTEREST. Landlord hereby consents to Lender's security interest (or other interest) in the Collateral and subordinates to Lender and its successors and assigns all interests, liens and claims which Landlord now has or may hereafter acquire in the Collateral. Landlord agrees that any lien or claim it may now have or may hereafter have in the Collateral will be subject at all times to Lender's security interest (or other present or future Interest) in the Collateral and will be subject to the rights granted by Landlord to Lender in this Agreement. This lien subordination shall apply to and cover only Borrower's personal property (e.g., trade fixtures and equipment) that does not become affixed to the Premises in a permanent manner. Notwithstanding anything to the contrary in this Agreement, this lien subordination does not apply to any fixtures or improvements constructed or installed on the Premises, except for trade fixtures. ENTRY ONTO PREMISES. During the term of the Lease and subject to any Reversionary Rights of the Landlord, while Tenant has right of possession of the Premises, Lender will have the right to enter upon the Premises for the purpose of removing the Collateral from the Premises or conducting sales of the Collateral on the Premises. In the event the Lease is terminated and notwithstanding any Reversionary Rights of the Landlord, Lender will have the right, but not the obligation, to enter the Premises, and Landlord will allow the Collateral to remain on the Premises, for a period not to exceed forty -five (45) days after Lender receives written notice (the "Termination Notice ") of such termination of the Lease or the period, if any, following termination of the Lease that Tenant is provided under the Lease to remove the improvements constructed or installed on the Premises, whichever is longer, or such shorter or longer period as Lender and Landlord may agree in writing ( "Disposition Period ") for purposes of Lender's inspection, removal, transferring or otherwise disposing of the same provided that and as conditions precedent thereto: (i) Lender shall deliver written notice (the "Election Notice ") to Landlord within ten (10) business days of Lender's receipt of the Termination Notice of Lender's election to leave the Collateral in the Premises during the Disposition Period and (ii) within ten (10) days of invoice, Lender shall deliver to Landlord the regular monthly base rent and additional rent due for the Disposition Period only. If Lender at any time enters onto the Premises and removes the Collateral, Lender agrees with Landlord not to remove any Collateral Page 2 BANNER -LD154 \00040629.002 in such a way that the Premises are damaged, without either repairing any such damage or reimbursing Landlord for the reasonable cost of repair. In connection with any Termination Notice, on or prior to receipt of an Election Notice from Lender, Landlord shall have the right (but not the obligation) to purchase the Loan at par for a purchase price equal to the aggregate amount outstanding under the Note and Related Documents, including principal, accrued interest, prepayment premium, default interest, late charges and foreclosure or other enforcement expenses, provided that (i) the Loan is sold to Landlord without recourse to or representation or warranty from Lender, except for representations as to the amount outstanding under the Related Documents and Lender's ownership of and right to sell the Loan free and clear of any liens, (ii) the purchase is substantially complete within forty -five (45) days of the date Landlord notifies Lender in writing that Landlord intends to purchase the Loan, and (iii) the Disposition Period shall be suspended and shall not run while Landlord is exercising its right to purchase the Loan from Lender. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Agreement: This Agreement shall extend to and bind the respective heirs, personal representatives, successors and assigns of the parties to this Agreement. The covenants of Borrower and Landlord respecting subordination of the claim or claims of Landlord in favor of Lender shall extend to, include, and be enforceable by any transferee or endorsee to whom Lender may transfer any claim or claims to which this Agreement shall apply. Lender must accept this Agreement in writing or otherwise to make it effective. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. If Landlord is other than an individual, any agent or other person executing this Agreement on behalf of Landlord represents and warrants to Lender that he or she has full power and authority to execute this Agreement on Landlord's behalf. Lender shall not be deemed to have waived any rights under this Agreement unless such waiver is in writing and signed by Lender. Subject to the terms of this Agreement, without notice to Landlord and without affecting the validity of this Agreement, Lender may do or not do anything it deems appropriate or necessary with respect to the Loan, any obligors on the Loan, or any Collateral for the Loan; including without limitation extending, renewing, rearranging, or accelerating any of the Loan indebtedness. AMENDMENTS. This Agreement, together with any Related Documents, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Agreement. No alteration of or addition or amendment to this Agreement shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. NO WAIVER BY LENDER. Lender shall not be deemed to have waived any rights under this Agreement unless such waiver is given in writing and signed by Lender. Delay or omission on the part of Lender in exercising any right granted by this Agreement that is subject to or must be exercised within a designated time period may operate as a waiver of such right. A waiver by Lender of a provision of this Agreement shall not prejudice or constitute a waiver of Lender's right otherwise to demand strict compliance with that provision or any other provision of this Agreement. No prior waiver by Lender, nor any course of dealing between Lender and Landlord, shall constitute a waiver of any of Lender's rights or of any of Landlord's obligations as to any future transactions. Whenever the consent of Lender is required under this Agreement, the granting of such consent by Lender in any instance shall not constitute continuing consent to subsequent instances where such consent is required and in all cases such consent may be granted or withheld in the sole discretion of Lender. Page 3 BANNER -LD154 \00040629.002 SEVERABILITY. If a court of competent jurisdiction finds any provision of this Agreement to be illegal, invalid, or unenforceable as to any circumstance, that finding shall not make the offending provision illegal, invalid, or unenforceable as to any other circumstance. If feasible, the offending provision shall be considered modified so that it becomes legal, valid and enforceable. If the offending provision cannot be so modified, it shall be considered deleted from this Agreement. Unless otherwise required by law, the illegality, invalidity, or unenforceability of any provision of this Agreement shall not affect the legality, validity or enforceability of any other provision of this Agreement. DEFINITIONS. The following capitalized words and terms shall have the following meanings when used in this Agreement. Unless specifically stated to the contrary, all references to dollar amounts shall mean amounts in lawful money of the United States of America. Words and terms used in the singular shall include the plural, and the plural shall include the singular, as the context may require. Words and terms not otherwise defined in this Agreement shall have the meanings attributed to such terms in the Uniform Commercial Code: Agreement. The word "Agreement" means this Landlord's Estoppel and Consent, as this Landlord's Estoppel and Consent may be amended or modified from time to time, together with all exhibits and schedules attached to this Landlord's Estoppel and Consent from time to time. Borrower. The word "Borrower" means McCormick Aircraft Hangars, L.L.C. and includes all co- signers and co- makers signing the Note and all their successors, and assigns. Collateral. The word "Collateral" means all of Borrower's right, title and interest in and to all the Collateral as described in the Collateral Description section of this Agreement. Landlord. The word "Landlord" means Yakima Air Terminal — McAllister Field, and is used for convenience purposes only. Landlord's interest in the Premises may be that of a fee owner, lessor, sublessor or lienholder, or that of any other holder of an interest in the Premises which may be, or may become, prior to the interest of Lender. Lease. The word "Lease" means that certain lease of the Premises between Landlord and All Seasons Associates, L.L.C. dated September 1, 2011, amended February 12, 2012 to enlarge the leased area and provide for increased rent, and amended March 19, 2012 to extend the term. Lender. The word "Lender" means Banner Bank, its successors and assigns. Loan. The word "Loan" means any and all loans and financial accommodations from Lender to Borrower whether now or hereafter existing, and however evidenced. Note. The word "Note" means and includes without limitation all of Borrower's promissory notes and /or credit agreements evidencing Borrower's loan obligations in favor of Lender, together with all renewals of, extensions of, modifications of, refinancing of, consolidations of, and substitutions for Note or credit agreement. Premises. The word "Premises" means the real properly located in Yakima County, State of Washington, commonly known as 3208 West Washington Avenue, Yakima, WA 98903. Related Documents. The words "Related Documents" mean all promissory notes, credit agreements, loan agreements, environmental agreements, guaranties, security agreements, mortgages, deeds of trust, security deeds, collateral mortgages, and all other instruments, Page 4 BANNER -LD154 \00040629.002 agreements and documents, whether now or hereafter existing, executed in connection with the Loan. Reversionary Rights. The words "Reversionary Rights" mean any rights of the Landlord under the Lease, upon termination of the Lease and at Landlord's option, to accept ownership of the improvements and fixtures constructed or installed on the Premises or to require Borrower to remove such improvements within a specified time period. BORROWER, LANDLORD AND LENDER ACKNOWLEDGE HAVING READ ALL THE PROVISIONS OF THIS LANDLORD'S ESTOPPEL AND CONSENT, AND BORROWER, LANDLORD AND LENDER AGREE TO ITS TERMS. THIS AGREEMENT IS DATED 1-- i'l - l3 2013. BORROWER: MCCORMIMAIRCRAFT HANGARS L.L.C. By:_ Title: LANDLORD: YAKIMA AIR TERMINAL - MCALLISTER FIELD 0 By: A%�edS�er for Yakima Air Terminal - A lister Field Authorized Signer for Yakima Air Terminal - McAllister Field CITY CONTRACT NO:" RESOLUTION N0: LENDER: BANNER BANK By A thorized Officer Page 5 BANNER -LD154 \00040629.002