HomeMy Public PortalAbout1999_07_27_r228 The Town of
Leesburg,
._ v rg
RESOLUTION NO.
A RESOLUTION:
PRESENTED July 27, 1999
99- 228 ADOPTED July 27, 1999
APPROVING A CONSENT, ESTOPPEL AND RECOGNITION
AGREEMENT BETWEEN THE TOWN OF LEESBURG AND BANKERS
TRUST COMPANY
WHEREAS, the Town of Leesburg and American Beechcraft Company entered into a Lease
Agreement for Fixed Base Operations dated January 18, 1996; and
WHEREAS, the Lease prohibits American Beechcraft Company from mortgaging its interest in
the Lease without consent of the town; and
WHEREAS, American Beechcraft Company is seeking a loan from Bankers Trust Company
secured by a first mortgage lien on American Beechcraft Company's interest under the Lease; and
WHEREAS, American Beechcraft Company has requested the Town of Leesburg execute the
attached Consent, Estoppel and Recognition Agreement which grants to Bankers Trust Company certain
rights with respect to the Lease.
THEREFORE, RESOLVED by the Council of the Town of Leesburg in Virginia that the acting
town manager is authorized to execute the attached Consent, Estoppel and Recognition Agreement.
PASSED this 27th day of July, 1999.
ATTEST:
Clerk of Council
Jam~es E. Clem, Mayor
Town of Leesburg
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CONSENT, ESTOPPEL AND RECOGNITION AGREEMENT
TI[IS CONSENT, ESTOPPEL AND RECOGNITION AGREEMENT dated as
of ,1999 (this "Agreement") between THE TOWN OF LEESBURG, a
municipal corporation, having an office at 25 West Market Street, P.O. Box 88, Leesburg,
Virginia 20178 ("Lessor"), and BANKERS TRUST COMPANY, as Collateral Agent, having an
office at 130 Liberty Street, New York, New York 10006 ("Mortgagee").
WITNESSETH:
WHEREAS, Lessor and American Beechcraf~ Company ("Lessee") entered into
that certain Lease Agreement for Fixed Base Operations dated January 18, 1996 (the "Lease")
with respect to certain space at Leesburg Municipal Airport (the "Property");
WHEREAS, pursuant to the terms of the Lease, the Lessee is prohibited from
mortgaging its interest thereunder without the prior consent of the Lessor;
WHEREAS, Mortgagee is making a loan to American Beechcrafl: Company
("Borrower'), to be secured by, among other things, a guaranty to be delivered by Lessee (the
"Guaranty");
WHEREAS, as security for Lessee's obligations under the Guaranty, Mortgagee
has requested that Lessee grant to Mortgagee a first mortgage lien in and to its interest under the
Lease pursuant to the terms of that certain Open-End Mortgage and Security Agreement,
Leasehold Open-End Mortgage and Security Agreement, Assignment of Rents, Leases and
Profits, Financing Statement and Fixture Filing (the "Mortgage");
WHEREAS, Mortgagee has requested that Lessor consent to Lessee's execution
and delivery of the Mortgage;
WHEREAS, Mortgagee has further requested, and Lessor has further agreed to
grant to Mortgagee, certain rights with respect to the Lease upon the terms and conditions set
forth herein;
NOW THEREFORE, in consideration of the mutual covenants contained herein,
Lessor and Mortgagee hereby agree as follows:
1. Lessor hereby consents to (a) the grant by Lessee of a first mortgage lien in
and to Lessee's interest under the Lease and (b) the execution and delivery by Lessee of the
Mortgage. Lessor hereby recognizes Mortgagee's interest in the Lease and agrees as follows:
a. Except for a termination of any Lease as a result of an event of
default thereunder, (i) there shall be no cancellation, termination, surrender, acceptance of
surrender, amendment or modification of any Lease or the Lease without the prior written notice
DC_DOCSX202475.3 [W971
to Mortgagee, and (ii) any attempted cancellation, termination, surrender, amendment or
modification without the prior written notice to the Mortgagee shall be of no force or effect;
b. Lessor, upon serving Lessee with any notice of default or demand
or termination notice, shall contemporaneously serve a copy of such notice on Mortgagee in
accordance with Section 9 hereof. No such notice shall be deemed given or effective unless a
copy is so served upon Mortgagee in the manner provided for herein;
c. In the event of any default by Lessee under any Lease, Mortgagee
shall have the fight to remedy or cause to be remedied the default complained of within the same
time period as Lessee has to so remedy or cause to be remedied such default under the terms of
the applicable Lease and such time period shall commence on the date of delivery of notice by
Lessor of such default as set forth in the Lease (the "Notice Date") (which notice shall state the
amount due in the case of a monetary default where the amount is certain). Lessor shall accept
such performance by Mortgagee as if the same had been done by Lessee. The period which the
Mortgagee is given herein to cure monetary defaults under any Lease is hereinafter referred to as
the "Monetary_ Default Cure Period." The period which the Mortgagee is given herein to cure
non-monetary defaults under any Lease is hereinafter referred to as the "Non-Monetary Default
Cure Period"; and
d. Lessee may add Mortgagee as an additional insured under, and may
add Mortgagee to the loss payee endorsement of, any insurance policies to be carried by Lessee in
respect to the Property (in each case to the extent applicable).
2. Lessor acknowledges that the rents and other amounts payable by all
subtenants or occupants of the Property have been assigned to Mortgagee as further security for
the Guaranty except as the same is assigned to Lessor pursuant to the Lease.
3. If Mortgagee or its designee shall acquire title to Lessee's interest in any
Lease, by foreclosure or otherwise, Lessor agrees that Mortgagee may thereafter assign the
applicable Lease to a Permitted Assignee (as hereinafter defined) upon prior written approval of
Lessor and shall thereupon be released from all liability for the performance or observance of the
covenants and conditions contained in such Lease to be performed or observed on Lessee's part
from and atter the date of such assignment, provided that the Permitted Assignee shall have
assumed such Lease. In the event of such an assignment, Lessor shall recognize the Permitted
Assignee as lessee under such Lease and agrees that such Permitted Assignee shall be afforded all
the rights and benefits as lessee under such Lease. AS used herein, "Permitted Assignee" shall
mean an experienced, competent, recognized and financially solvent operator of a Fixed Base
Operation, as approved by the Lessor in its sole discretion.
4. Nothing herein shall be deemed or construed to create or impose any
obligation, covenant or liability whatsoever, upon Mortgagee (i) for the payment of rent and other
amounts due under any Lease, (ii) for the performance of any of Lessee's covenants and
agreements under any Lease, or (iii) to cure any default by Lessee under any Lease.
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DC_DOCS~202475.3 [W97]
5. The liability of Mortgagee shall be limited to its interest in the Property.
6. Lessor hereby certifies to Mortgagee that:
a. the Lease is in full force and effect and has not been amended,
modified or supplemented. There are no other agreements or understandings, whether written or
oral, between Lessee and Lessor with respect to any Lease or the Property;
except for
bo
Lessee has accepted possession of and occupies the entire Property
;
c. all rent, additional rent, charges and fees payable to Lessor under
each Lease have been paid through
d. to the best of Lessor's knowledge, both Lessor and Lessee have
performed all of their respective obligations under each Lease and Lessor has no knowledge of
any event which with the giving of notice, the passage of time or both would constitute a default
by Lessee under any Lease;
e. to the best of Lessor's knowledge, Lessee has not assigned the
Lease and has not subleased the Property or any part thereof except
and
f. attached hereto as Exhibit A is a true copy of each Lease and all
amendments, modifications and supplements thereto.
7. All notices, requests or demands required or permitted to be made
hereunder shall be in writing and shall be delivered by (i) certified mail, return receipt requested,
(ii) recognized overnight courier, or (iii) personal delivery. Any such notice, request or demand
shall be deemed delivered (i) three (3) business days after deposit of the same with the United
States mail if delivered by certified mail, return receipt requested, (ii) next business day after the
deposit of the same with a recognized overnight courier, or (iii) upon receipt if delivered by
personal delivery. Ail notices, requests or demands hereunder shall be made to the following
addresses:
If to Lessor:
25 West Market Street
P. O. Box 88
Leesburg, Virginia 20178
Attention: Town Manager and Airport Director
with a copy to:
DC_DOCS~202475.3 [W97]
25 West Market Street
P.O. Box 88
Leesburg, Virginia 20178
Attention: Town Attorney
If to Mortgagee:
Bankers Trust Company
130 Liberty Street
New York, New York 10006
Attention:
with a copy to:
Winthrop, Stimson, Putnam & Roberts
One Battery Park Plaza
New York, New York 10004
Attention: A. Elisabeth Andre de la Porte, Esq.
8. This Agreement shall be binding upon the successors and/or assigns of
Lessor and Mortgagee.
9. If any provision of this Agreement is held to be invalid or unenforceable by
a court of competent jurisdiction, such provision shall be deemed modified to the extent necessary
to be enforceable, or if such modification is not practicable such provision shall be deleted from
this Agreement, and the other provisions of this Agreement shall remain in full force and effect.
10. This Agreement may not be terminated, amended, supplemented, waived or
modified orally, but only by an instrument in writing executed by both parties.
11.
This Agreement shall be governed by the laws of the Commonwealth of
Virginia.
12. Lessor and Mortgagee hereby agree that this Agreement may be recorded
against the Property in the land records of the county or municipality of the Commonwealth of
Virginia in which the Property is located.
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DC_DOCS~202475.3 [W97]
IN WITNESS WHEREOF the parties have executed this Agreement as of the date
first above written.
TOWN OF LEESBURG '
Title:
BANKERS TRUST COMPANY,
as Collateral Agent
By:
Name:
Title:
DC_DOCSL?.02475.3 [W97]
STATE OF VIRGINIA
CITY/COUNTY OF LEESBURG, to wit:
The foregoing instrument was acknowledged before me in the City/County of
, Virginia, this ~rO~'-~c' day of x~"',--[c~ ,199~, by ,~ae~ ~;, C--/'e~r-~ ,as
of the Town of Leesburg, a , on behalf of said
Notary Public
My Commission Expires:
/ ~
I~_DOCSX202475.3 [W971
EXHIBIT A
COPY OF LEASE
DC_DOC$~.02475.3 [W97]