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HomeMy WebLinkAbout1995-11-13 96-26 ORDERCOUNCIL ACTION Item No. 96-26 Date November 13, 1995 Item/Subject: Approving Execution of Landlords Consent, Waiver and Estoppel -- Sea Dog Brewing Co./Camden National Bank Responsible Department: Legal Commentary: The. City's lease with Sea Dog. Brewing Co. for the property on Front Street requires the City's consent to any assignment of the lease. Just over a year ago, the City Council approved execution of documents consenting to Sea Dog's assignment of the lease as collateral for construction phase project financing. The construction has been completed and now Camden National Bank is seeking the City's consent to assignment of the lease as collateral for the project's permanent financing. I have reviewed the documents concerned and have proposed language, accepted by the banki-to-preservenour'priority position with respect to taxes and - sewer charges. - Department � �� � Head Manager's Comments: City Manager Associated Information: Order, Landlord's Consent, Waiver and Estoppel Budget Approval: Finance Director Legal Approval: city Solicitor Y . introduced For passage FirstReading Referral E2rrd1 Paga -1 Of 6- 1 96-26 Lo\ Anipmd to Countuor woodcock November 13, 1995 CITY OF BANGOR Approving Execution of Landlord's Consent, (TITLE.). Mrbrre_.......... .--............ ..._. _.. _.:. .......................... Waiver and Estoppel -- Sea Dog Brewing Co./ Camden National sank By OW City CounoV of fU City ofBanynr: ORDERED, THAT the City Manager is hereby authorized and directed, on behalf of the City of Bangor, to execute a Landlord's Consent,,,.. Waiver and :Estoppel with the Camden Naeional Bank; relative to the City's lease of the former Finer Shoe Factory building to Sea Dog Brewing Co. A copy of the instrument to be executed is attached hereto and is incorporated by reference. IB ¢a cooecu November 13. 1995 p 9 m '- Passed Approving Executive of Landlord's CIPS mm Consent. Waiver and Estoppel — (TITLEJ sea Nog Brewing Co./CovBen National Bank A i9no W Coumilor LZ3ra LANDLORD'S CONSENT, WAIVER AND ESTOPPEL THIS AGREEMENT made and entered into as of the day of ,-1995, by and among The City of Bangor (hereinafter "Landlord"), and CAMDEN NATIONAL BANK, with its principal place of business in Two Elm Street, Camden, Maine, (hereinafter, together with its successors and assigns, "Bank") RECITALS WHEREAS, Landlord is the owner of certain real estate situated at 26 Front Street, Bangor, Maine, (hereinafter, together with all buildings and improvements located thereon, the "premises"); WHEREAS, Landlord has leased the Premises to Sea Dog Brewing - Co. (HEREINAFTER, "Tenant") pursuant to the terms of that certain Lease dated September 13, 1994, a true copy of which lease is "i attached hereto as Exhibit S (hereinafter, 'Lease') -'- II. WHEREAS, Tenant and Bank have entered into certain financing transactions pursuant to certain promissory notes dated September 11, 1995 and in connection therewith Tenant proposed to assign its Lease and has granted or will grant to Bank a security interest in some or all of Tenant's now owned and hereafter acquired personal property, including, without limitation, inventory, accounts, general intangibles, goods, machinery, equipment, fixtures, and proceeds thereof (together, as described in related loan documents, the "Collateral -1; and WHEREAS, in order to induce Bank to provide such financial cmmodations,Tenant has agreed to secure Landlord's execution of this Agreement. _ NOW THEREFORE, for one dollar and other good and valuable considerations, the receipt and sufficiency whereof is hereby acknowledged, and in consideration of the foregoing, the parties hereto agree as follows: 1. Landlord hereby waives in favor of Hank any lien, claim, right, title or interest including, but net limited to, any Landlord's lien or right to distress for rent, which the Landlord may have or hereafter acquire as to any of the Collateral, whether presently or hereafter installed i affixed to any portion of the Premises, provided, however, that nothing in this Agreement shall be deemed to waive, release or subordinate any claim or lien of the Landlord, in its governmental capacity, arising by virtue of unpaid real estate or personal property taxes, sewer user fees or charges assessed against or incurred by the Tenant on account of Tenant's occupancy or use of the leased premises, including any personal property located thereon. 96-26 1 2. The Landlord further agrees that the Collateral shall at all times be deemed personal. property and not real property or fixtures or in any way part of the Premises. - 3. Landlord hereby consents to the removal of any of the Collateral from the Premises and to the sale of the collateral on or off the Premises, at any time prior to the termination of the Lease, and Tenant and Bank may have access to the Premises for the purposes of such removal and sale, provided, however, that such removal shall not result in physical damage to or loss of the leased Premises; and provided that following such removal the Collateral shall remain subject to all claims and liens of the Landlord arising by virtue of unpaid personal property taxes assessed with respect to the Collateral by the Landlord acting in its governmental capacity; and further provided that all such taxes, including statutory interest and other charges accrued thereon, shall be paid by the Bank to the Landlord prior to or upon sale of the Collateral concerned. 4. In the event of any terminationof the Lease, Bank shall have ninety (90) days after receipt of written notice from Landlord of such termination within which to remove Collateral from the Premises or to sell the Collateral (including by auction sale) on the Premises. (Bank shall have no obligation, however, to remove or sell the Collateral.) Bank may have access to the Premises for the purposes of such removal and/or sale but in the vent it elects to remove or sell the Collateral, it shall be obligated as follows: in the event any portion of such 90 day period is subsequent to the date on which the Lease is terminated pursuant to such notice, Bank shall agree, prior to any removal or sale, to honor all Tenant obligations, as set forth in the Lease during the remainder of such 90 day period, including, without limitation, payment of Rents for such period and providing insurance. nc u an a Notwithstanding any other provision in the Lease, Bank shallhave n obligation arising after the remainder of such 90 day period, except for (i) indemnity provisionsm relating to events arising during such 90 day period, and (ii) repair of any damage re sulting from removal and sale of fixtures and personal property.By entering into this Agreement, Bank does not undertake any duties or obligations with respect to the Collateral orthe Premises, ex t t t h 3 d 4 hereof with t t t { Personal property! d repair or d Bathe nai ftLandlord agrees that k,s assignee, shall not be responsible for rental payments o any other Lease cbligat ion a, except as net out in Paragraphs 3 and 4 hereof th B k' 1 l f the Collateral. 5. Landlord represents that a true and correct copy of the Lease is attached hereto as Exhibit A. There are n modifications, amendments or supplements to the Lease, except those, if any, attached as part of Exhibit A. 96-26 6. The Landlord represents that the Lease is in full force - and effect, and the Lease bas been duly executed by and is the binding obligation of Landlord as set forth herein. ]. The Landlord represents that the Lease is not in default and Tenant has performed the obligations required to be performed by Tenant under the terms thereof to the date hereof. 8. 1Agreement the benefitOfthe parties abindingll be hereto, and hein their respective permitted successors and assigns 9. Landlord hereby consents to the mortgage and assignment by Tenant of the leasehold interest in the Premises to Bank pursuant to that Leasehold Mortgage and Security Agreement by Lessee dated September 12 , 1995 , and hereby waives any default under the Lease otherwise resulting therefrom. Landlord agrees to provide Bank with not less than thirty (30) days prior written notice of any termination of the Lease, de of an : - - declaration of breach or default, or the exercise of any other remedy on the Lease and to provide the Bank with an opportunity to cure any defaults under the Lease prior to the termination thereof, and prior to the exercise of any remedy thereunder; provided, however, that if the event of default is default other than breech of an obligation to pay money, Bank shall be deemed to have cured he cure if within said thirty (30) day period it commences the cure thereof and pursues the same with reasonable diligence. I- 10. Landlord further agrees that in the event that (i) Bank forecloses upon said Leasehold Mortgage, or (ii) Bank otherwise enforces its rights thereunder against Tenant and provides written notice to Landlord of Bank's intention to assume the lease that Bank, upon curing any breach of default in the lease, and upon observing and performing the terms and provisions thereof, shall be entitled to the quiet use and occupancy of the Premises as if Bank were the Tenant thereunder. 11. Tenant further agrees that upon or following foreclosure of said Leasehold Mortgage, or any other enforcement by Bark of its rights thereunder, and upon cure of any breaches ir defaults under the Lease, Bank may assign the Tenant's nterest in said Lease to a third party, but no such assignment shall be made without the consent of Landlord, which consent ent shall net be unreasonably withheld. Landlord may choose to purchase the Collateral and lease on same terms and conditions made by the third party offerer. If Landlord does not exercise its rights of first refusal then, upon such consent by Landlord to assignment, Bank shall be forever released and discharged of any obligations under this Agreement and under the Lease arising after the date of such assignment. 96-26 12. This Agreement is governed by and shall be construed in accordance with the laws of the state of Maine. 13. Landlord and Tenant acknowledge and agree that, to the extent any term or provision of this Agreement may conflict or be inconsistent with any terms or provisions of Gh'e Lease, the terms and Landlord or Tenant. and provisions of this Agreement shall control as between Bank 14. Landlord acknowledges that this Consent to Assignment is a conditional assignment as security and not an absolute assignment. 15. This Agreement contains the entire agreement between Landlord, Tenant, and Bank with respect to the matters set forth herein. This Agreement may not be altered or amended except by an agreement in writing, signed by Hank, Landlord and Tenant. any notice to Bank, Landlord and Tenant shall be in writing, and shall be deem d given when deposited in the united States maDI, - Postageprepaid', first 'class and addressed to Bank,. Landlord -and Tenant, as the case may be as follows: Landlord: City of Bangor Municipal Building Bangor, Maine 04401 Bank: Camden National Bank 2 Elm Street, P.O. Box 310 Camden, Maine 04843 IN WITNESS WHEREOF, Landlord has duly executed this Agreement as of the date first written above.. City of Bangor Seen and Agreed To: Sea Dog Brewing Co. Peter Camplin ACCEPTED: CAMDEN NATIONAL BANE uvo...nm.sea.,e. 4