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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 R:ABC-BTC 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. 2 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. 4 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]