Loading...
Res 095-97 6/17/1997RESOLUTION NO. � -9 7 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, AUTHORIZING THE CITY MANAGER TO EXECUTE A CONSENT TO ASSIGNMENT OF THE FIXED BASE OPERATOR'S LEASE AGREEMENT FROM BEST AVIATION SERVICES, INC. TO BLACKBIRD AVIATION, INC.; FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS RESOLUTION WAS DISCUSSED WAS OPEN TO THE PUBLIC AS REQUIRED BY LAW. WHEREAS, the City of Wichita Falls, Texas, has received a request from Best Aviation Services, Inc., to consent to the assignment of the fixed base operator's lease agreement from Best Aviation Services, Inc., to Blackbird Aviation, Inc,; and, WHEREAS, The City Council is of the opinion that approval of the assignment is in the best interest of the City of Wichita Falls and will result in an upgrading of the fixed base operations at the Wichita Falls Municipal Airport. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, THAT: Section 1. That the City Manager be and is hereby authorized to execute on behalf of the City of Wichita Falls the Consent to Assignment, the same attached hereto as Exhibit A and made a part hereof for all purposes, pending receipt of a check in the amount of $12,489.70 from Best Aviation Services, Inc. Section 2. It is hereby officially found and determined that the meeting at which this resolution was passed was open to the public as required by law. PASSED AND APPROVED this the 17th day of June, 1997. M A O Ri ATTEST: CONSENT TO ASSIGNMENT WHEREAS, on or about October 17, 1977, the City of Wichita Falls, Texas, as "Landlord ", and Southern Aviation of Texas, Inc., as "Lessee ", entered into that certain Fixed Base Operator's Agreement and Aircraft Fuel Servicing Contract covering land situated at the Wichita Falls Municipal Airport (the "Lease "); and WHEREAS, the Lease was extended and amended by First Amendment dated August 2, 1982, and was ratified by Ratification and Memorandum of Lease recorded in Volume 1539, Page 585, Official Public Records, Wichita County, Texas; and WHEREAS, the term of the Lease has been extended to October 1, 1997, by notification of exercise of option dated June 10, 1992, from Lessee to Landlord; and WHEREAS, on October 18, 1994, the lease was assigned to Best Aviation Services, Inc., by City Council action; and WHEREAS, Lessee, as "Seller ", has entered into that certain Sale and Purchase Agreement dated June 28, 1997, with Blackbird Aviation, Inc., as "Purchaser" (the "Sale & Purchase Agreement "), whereby Lessee has agreed to sell and Purchaser has agreed to purchase certain of Lessee's assets, including the Lease; and WHEREAS, Paragraph XXIX of the Lease requires the consent of Landlord to any assignment or transfer of the Lease by Lessee and Lessee and Purchaser have requested the Landlord to consent to said assignment of the Lease and Landlord is agreeable to granting its consent in accordance with the following. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, including the reliance of Purchaser on the terms of this Consent to Assignment in performing under the Sale & Purchase Agreement, the parties agree as follows: 1. Landlord hereby consents to the assignment of all of Lessee's interest under the Lease to Purchaser, effective (the "Effective Date ") pursuant to the form of Assignment of Lease attached hereto as Exhibit A and agrees to and does hereby release Lessee from all further obligations and liabilities under the Lease arising on and after the Effective Date. 2. Purchaser assumes and shall be liable for Lessee's obligations under the Lease arising on or after the Effective Date. 3. By his execution hereof, the District Engineer, U.S. Army Engineer District, Fort Worth, Texas, (a) grants permission and consents to the assignment of the Lease from Lessee to Purchaser and (b) ratifies its previous consent to Landlord's entry into the Lease with Lessee. 4. Landlord hereby represents and warrants that (i) Lessee is not in breach or default under the Lease, and no event has occurred which, with notice or the passage of time, or both, would constitute a breach or default under, or permit termination, modification or acceleration under the Lease, (ii) Landlord has not repudiated any provision of the Lease, (iii) all rent and other payments owed by Lessee to Landlord has been paid to date, (iv) to Landlord's knowledge, there are no disputes, oral agreements or forbearance programs in effect as to the Lease and (v) attached hereto as Exhibit B is a true, correct and complete copy of the Lease and all amendments and modifications thereof as presently in force. Except as set forth on Exhibit B, there are no amendments or modifications to the lease. 5. Each party hereby acknowledges and agrees that both before and after the Effective Date the Lease was and is in full force and effect and that the Lease constitutes a legal, valid, and binding obligation of the parties thereto, enforceable in accordance with its terms. 6. From and after the Effective Date, all notices to the Lessee under the Lease shall be delivered to Purchaser at the address set forth below: Blackbird Aviation, Inc. 4000 Armstrong Drive, Suite 7 Wichita Falls, Texas 76304 Fax: (940) 855 -6941 7. On or before the Effective Date, Landlord covenants and agrees to cause Purchaser to be substituted as a named insured or loss payee on all insurance policies covering hangers and the Administration Building for all damages which may result thereto from fire and extended coverage hazards in accordance with the terms of the Lease. IN WITNESS WHEREOF, the parties hereto have caused this Consent to be executed as of June , 1997. Attest: By: By: City of Wichita Falls, Landlord Best Aviation Services, Inc. Blackbird Aviation, Inc. ASSIGNMENT OF LEASE The parties to this Assignment of Lease are Best Aviation Services, Inc., a Texas corporation ( "Assignor ") and Blackbird Aviation, Inc., a Texas corporation ( "Assignee "). WHEREAS, Assignor heretofore entered into that certain Fixed Base Operators Agreement and Aircraft Fuel Servicing contract dated October 18, 1994, with the City of Wichita Falls, Texas, as amended by the Second Amendment to Fixed Base Operator Agreement and Aircraft Fuel Servicing Contract dated October 18, 1994, (the "lease "), pursuant to which Assignee, as Lessee, leased the real property situated in Wichita County, Texas, and described on Exhibit A, which is attached hereto and incorporated herein by reference; and WHEREAS, Assignor desires to assign to Assignee the Lease and all of the rights, benefits and privileges of the lessee thereunder; NOW, THEREFORE, in consideration of the foregoing and the agreements and covenants herein set forth, the sum of Ten and No /100 Dollars ($10.00), and other good and valuable consideration paid by Assignee to Assignor, the receipt and sufficiency of which are hereby acknowledged, Assignor does hereby ASSIGN, TRANSFER, SET OVER and DELIVER unto Assignee the lease, and all of the rights, benefits and privileges of the lessee thereunder. TO HAVE AND TO HOLD all and singular the Lease unto Assignee, and Assignee's successors and assigns forever, and Assignor does hereby bind Assignor, and assignor's successors, to warrant and forever defend all and singular the Lease unto Assignee, and Assignee's successors and assigns, against every person whomsoever lawfully claiming or to claim the same, or any part thereof. 1. Assignor hereby represents and warrants to Assignee that Assignor is the owner of the Lease, a true, correct and complete copy of the Lease presently in force being attached hereto as Exhibit B and incorporated herein by reference; and that this Assignment conveys all of the interest of Assignor, as lessee under the Lease. Except as set forth on Exhibit B, there are no amendments or modifications to the Lease. 2. Assignor shall not be responsible to the lessor under the Lease for the discharge or performance of any duties or obligations to be performed or discharged by the lessee thereunder after the date thereof. 3. By accepting this Assignment of Lease and by its execution hereof, Assignee hereby assumes and agrees to perform all of the terms, covenants and conditions of the Lease on the part of the lessee therein required to be performed, from and after the date hereof. 4. Assignee hereby agrees to indemnify and hold harmless Assignor, its directors, officers, shareholders, and against any and all loss, cost or expense (including, without limitation, reasonable attorneys' fees) resulting by reason of Assignee's failure to perform any of the obligations of lessee under the Lease after the date hereof. 5. Assignor hereby agrees to idemnify and hold harmless Assignee, its directors, officers, shareholders, and against any and all loss, cost or expense (including, without limitation, reasonable attorneys' fees) resulting by reason of the failure of Assignor to perform any of the obligations of the lessee under the Lease on or prior to the date hereof. 6. Assignor hereby represents and warrants to Assignee that Assignor has obtained the consents and approvals of the District Engineers, U.S. Army Engineer District, Fort Worth, Texas, and the City of Wichita Falls, Texas, to (a) the Lease and (b) this Assignment, copies of which are attached hereto as Exhibit C. 7. Assignor hereby represents and warrants to Assignee that (i) Assignor is not in breach or default under the Lease, (ii) Assignor has paid all rentals and other amounts due under the Lease, (iii) there exists no event which with notice or the passage of time, or both, would constitute a breach or default under, or permit any termination, modification or acceleration under, the Lease and (iv) the Lease constitutes a legal, valid and binding obligation of the parties thereto, enforceable in accordance with its terms. 8. All of the covenants, terms and conditions set forth herein shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. EXECUTED this day of the day of 1997. 1997, to be effective as of ASSIGNOR: BEST AVIATION SERVICES, INC. By: Name: Title: ASSIGNEE: By: BLACKBIRD AVIATION, INC. Name: Title: