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
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