Current through August 30, 2024
(a) This section
applies to an assignment of an interest in a lease or concession for security
purposes. A permit issued under this chapter may not be assigned for security
purposes.
(b) Unless the lease or
concession expressly provides otherwise, a lessee or concessionaire may not
assign for security purposes all or a portion of or any interest in a lease or
concession, including improvements, without the prior written consent of the
department under
17 AAC 45.275. An assignment for
security purposes made contrary to the requirements of this section and
17 AAC 45.275 is void.
(c) A request for consent to an assignment
for security purposes must be submitted to the department in writing and must
include
(1) the name, address, and telephone
contact number for the proposed assignee;
(2) three originals of the executed
assignment documents with notarized signatures of the assignor and proposed
assignee;
(3) unless the department
requests additional copies, one copy of any deed of trust, promissory note, or
other document that is a part of the security assignment transaction;
and
(4) a non-refundable $500
security assignment processing fee.
(d) A security assignment document must
include provision stating that,
(1) if the
security assignee takes possession or control of the subject lease, permit, or
concession that is subject to the security assignment, either directly or
through a sub-tenant, by foreclosure or otherwise, under the security
assignment,
(A) the security assignee accepts
responsibility for all of the assignor's obligations under the lease, permit,
or concession, including environmental liability and responsibility, commencing
as of the date the security assignee succeds to the assigner's interest under
the lease permit or concession; and
(B) except as provided in (3) of this
subsection, those obligations terminate as to the security assignee upon
further transfer of the lease, permit, or concession by the security assignee;
(2) the security
assignee has an affirmative duty to notify the airport in writing upon the
reconveyance or release of the security interest; and
(3) unless the security assignee participates
in management of the airport tenant, the security assignee does not have
environmental liability or responsibility for a the period pre-dating the time
when it took possesion of control of the lease, permit or concession; in this
paragraph, "participates in management" has the meaning given in
42 U.S.C.
9601(20)(F); The security
assignee does not have environmental liability or responsibility following a
subsequent transfer of its entire interest in the lease, permit, or concession
unless, by its direct actions, negligence, or failure to use due care, the
security assignee
(A) caused or contributed
to a violation of any of the lease, permit or concession terms relating to
environmental law or hazardous substances;
(B) violated
17 AAC 42.045 or
17 AAC 42.050;
(C) caused or contributed to actual financial
damages to the airport due to a security assignee's breach of an environmental
law.
(e)
Exercise by a security assignee of a power of sale or further assignment under
a security assignment is subject to the consent of the department under
17 AAC 45.275 with respect to any
purchaser or assignee and shall be conditioned upon the purchaser or assignee
accepting responsibility for all of the lessee's or concessionaire's
obligations under the lease or concession, including environmental liability
and responsibility.
(f) If a lease
or concession conflicts with an assignment for security purposes of an interest
in the lease or concession, the terms of the lease or concession govern. A
provision stating this priority must be included in each assignment for
security purposes, but is implied in all assignments for security purposes
whether stated or not.
(g) A lessee
or concessionaire may request that the department informally review a proposed
assignment for security purposes before the assignment documents are executed.
However, an assignment of a lease or concession for security purposes is
effective only if the department consents to the assignment in writing under
17 AAC 45.275 after receiving a
written request submitted under (c) of this section.
(h) The department's written consent to an
assignment for security purposes may provide that the department will give
notice to the security assignee that the lessee or concessionaire is in
default. However, any such provision is subject to the following terms and
conditions:
(1) the department will give
notice to a security assignee that the lessee or concessionaire is in default
only if the department has within the preceding 12 months received from the
security assignee written confirmation that the security assignee continues to
have an interest in the lease or concession, and continues to desire such
notice;
(2) if the department fails
to provide to a security assignee notice of a lessee's or concessionaire's
default despite having received annual confirmation from the security assignee
as described in (1) of this subsection, the sole recourse of the security
assignee is judicial action within one year to seek to vacate any change by the
department in the security assignee's rights or interest;
(3) the department undertakes no duty for
which the department may be liable for damages, whether direct or
consequential, for failure to provide any notice to a security assignee as
described in this subsection.
(i) An assignment for security purposes under
this section may be reassigned to another holder only upon consent of the
department under
17 AAC 45.275.
Authority:AS 02.15.020
AS 02.15.060
AS 02.15.090
