HomeMy WebLinkAbout2009-08-10 09-263 ORDERCOUNCIL ACTION
Item No: 39 263
Date: August 10, 2009
Item/Subject: Order, Authorizing the City Manager to Execute Landlord Consent Between the
City of Bangor, Telford Aviation Services, Inc. and Fifth Third Bank
Responsible Department: Legal
Commentary:
Telford Aviation Services, Inc. (Telford) is obtaining new financing. The lender requires the
execution of Landlord Consent from the City as a condition of the financing because the City
leases space to Telford Aviation, Inc. This is standard procedure. The Consent acknowledges
that the City has no claim on the property of Telford, that Telford is not in default on its lease,
that the lender may enter upon the leased premises to exercise its rights, that the City will give
the lender notice of any default and that the lender can assume the tenant's place under the
lease in the event of a default.
Manager's Comments:
Associated Information:
Budget Approval:
Legal Approval:
Introduced for
X Passage
First Reading
Referral
Department Head
Page _ of _
Manager
Finance Director
City Solicitor
39 263
qtr Assigned to Councilor — Stone August 10,2009
�oF^p*' S
� � o
9
o,
'V CITY OF BANGOR
o`t?�fe
AgiED,FE %`
(TITLE.) ORDER, Authorizing the City Manager to Execute Landlord Consent Between the
City of Bangor, Telford Aviation Services, Inc. and Fifth Third Bank
WHEREAS, Telford Aviation, Inc. is obtaining new financing; and
WHEREAS, the lender requires the Landlord Consent as condition of making the loan;
NOW, THEREFORE, BE IT ORDERED BY THE CITY COUNCIL OF THE CITY OF BANGOR
That the City Manager is hereby authorized, on behalf of the City of Bangor, to execute a
Landlord Consent with Telford Aviation Services, Inc. and Fifth Third Bank in substantially the
same form as attached hereto and in a final form as approved by the City Solicitor or Assistant
City Solicitor.
IN CITY COUNCIL
August 10, 2009
Passed
* 09-961
(TITLE,) Authorizing the City Manager to
Execute Landlord Consent Between the City
of Bangor, Telford Aviation Services, Inc. and
Fifth_Third Bank
Assigned to Councilor rj ` I
A 263
LANDLORD CONSENT
THIS LANDLORD CONSENT (this "Consent") is made and entered into as of this
day of August, 2009 by the undersigned Landlord ("Landlord"), for the benefit of
Telford Aviation Services, Inc. a Maine corporation ("Tenant"), and Fifth Third Bank, a
Michigan banking corporation, as agent (in such capacity, "Agent").
RECITALS
WHEREAS, Landlord is the landlord of premises having the address set forth on the
signature page hereto (the "Premises") which are leased to Tenant pursuant to a certain Lease
Agreement (the "Lease"); and
WHEREAS, Agent and certain other financial institutions (individually and collectively,
"Lender") have agreed to make certain loans to Tenant and its affiliates (the "Loan"), secured in
part by a security interest in all of the assets and personal property of Tenant and its affiliates
including, without limitation, all assets and personal property which now or hereafter may be
located on or about the Premises (the "Collateral"); and
WHEREAS, Agent and Lender require Landlord's consent and agreement as set forth
herein as a condition to making the Loan to Tenant and its affiliates.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord hereby
agrees as follows:
1. Collateral. Landlord claims no interest in or lien upon any of the Collateral, and
hereby subordinates any lien, security interest or claim in and to the Collateral, whether arising
under the Lease, provided by applicable law or otherwise, and agrees not to assert any statutory
or possessory liens or right of levy, distraint or execution against the Collateral for rent or other
sums due, or to become due, Landlord until all indebtedness has been paid in full in cash to
Agent and Lender and all financing arrangements and commitments between such parties have
been terminated. Landlord waives any and all right to require Agent or Lender to marshal any
property or assets of Tenant or any of the Collateral.
2. Personal Property. Landlord agrees that, as among Landlord and Agent and
Lender, the Collateral shall remain personal property, notwithstanding the manner of attachment,
and will not become part of the Premises.
3. Right of Entry. Agent may enter the Premises at any time to inspect, assemble,
and remove the Collateral in the exercise of its rights and remedies against Tenant and the
Collateral, and Landlord will not hinder Agent's exercise of such rights. Agent agrees to repair
any damage caused by Agent's removal of the Collateral. At the option of Agent, the Collateral
may remain upon the Premises (without Agent or any Lender being deemed to be taking
possession of said Premises), for a reasonable period not exceeding thirty (30) days after notice
by Landlord to Agent certifying that Landlord is entitled to possession of the Premises and
directing removal, subject to the payment, weekly or monthly in advance, by Agent of rent on a
JR06498802 42916-057152 IPE1NHART\2811915
CHICAGO/# 1956884.3
(TITLE,)
Assigned to Councilor
�9 1;63
per diem basis, at the basic rent provided under the Lease (excluding any past due payments
owed by Tenant). Agent's payment of rent shall not result in Agent or any Lender incurring any
other obligations of Tenant under the Lease. If Agent is prohibited by any process or injunction
issued by any court, or by reason of any bankruptcy or insolvency proceeding involving Tenant,
from enforcing its security interest in the Collateral, the thirty (30) day period shall commence
upon termination of such prohibition, so long as Agent is at all times pursuing its remedies with
due diligence.
4. Estoppel. Landlord certifies to Agent and Lender and agrees as follows:
A Valid Lease. The Lease is valid and enforceable according to its terms
and has not been modified either orally or in writing.
B No Defaults. To Landlord's knowledge (i) neither Landlord nor Tenant is
in default under the Lease, nor has any event occurred which, with the passage of time, the
giving of notice, or both, would constitute an event of default or default under the Lease, and
(ii) there exists no dispute, action or adverse claim between the parties in respect of the Lease.
5. Notice of Default and Opportunity to Cure. Landlord agrees that in the event of
any claimed breach or default by Tenant which would entitle Landlord to terminate the Lease,
Landlord shall notify Agent of such claimed breach or default by certified mail, return receipt
requested, or Federal Express or other nationally recognized overnight courier, at the following
address:
Fifth Third Bank
222 S. Riverside Plaza, 30th Floor
Chicago, Illinois 60606
Attention: Relationship Manager
Fax Number: (312) 704-4127
Agent shall thereupon have (i) ten (10) business days after receipt by Agent of such written
notice to cure any payment default under the Lease, and (ii) thirty (30) days after receipt by
Agent of such written notice to cure any non-payment default under the Lease; provided,
however, in the event such default is not reasonably susceptible of being cured within thirty (30)
days, such thirty (30) day cure period shall be extended as reasonably necessary to allow Agent
an opportunity to cure such default provided that Agent has commenced such cure within said
thirty (30) day period and thereafter continues to diligently pursue such cure to completion (but
in no event shall Agent or any Lender be required to cure any default).
6. Termination of Lease; New Lease. Tenant may grant a security interest in its
leasehold interests and rights in the Lease and may collaterally assign or mortgage such interests
to Agent and/or Lender, without thereby causing default under the Lease. In the event Landlord
terminates the Lease by reason of the occurrence of a default which by its nature cannot be cured
by Agent or Lender (e.g., the filing of bankruptcy by Tenant under the Lease), Landlord agrees,
upon Agent's request, to enter into a new Lease with Agent on terms identical to those of the
Lease for the remaining unexpired portion of the term of the Lease, at the sole option of Agent
provided that Agent so elects by written notice to Landlord within fifteen (15) business days
1RO6498802 42916-057is2 IREINHAR712811915 — 2 —
CHICAGO/# 1956884.3
(TITLE,)
Assigned to Councilor
263
after receipt by Agent of written notice of any such termination by Landlord. Prior to entering
into any agreement to mortgage, charge or pledge its interest in the Premises in favor of any
person, Landlord shall require such person to enter into an agreement in favor of Agent and
Lender acknowledging that such person will, if in possession of the Premises, be bound by the
terms of this Agreement.
7. Pledge. Agent, for the benefit of itself and the Lender, has received pledges of all
of the ownership equity of Tenant and certain of its affiliates. Landlord consents to such pledges
and agrees that, notwithstanding anything to the contrary contained in the Lease, Agent may
exercise its rights and remedies with respect to such pledges without causing a breach of or
default under the Lease.
8. Continued Effectiveness. The effectiveness of this Consent and Agent's rights
hereunder shall (i) continue in force until all obligations and indebtedness of Tenant to Agent
and Lender are paid and satisfied in cash in full and all financing arrangements and commitments
between such parties have been terminated, and (ii) not be affected by and shall extend to any
amendment or modification of the Loan documents, including, without limitation, any change in
the manner or time of payment, any renewal or extension of the term thereof, or any increase in
the indebtedness due thereunder.
9. Counterparts. This Consent may be executed in any number of counterparts
which, taken together, shall constitute one and the same instrument. Delivery of an executed
counterpart of this Consent by telefacsimile shall be equally as effective as delivery of a
manually executed counterpart of this Consent. Any party delivering an executed counterpart of
this Consent by telefacsimile shall also deliver a manually executed counterpart of this Consent,
but the failure to deliver a manually executed counterpart shall not affect the validity,
enforceability, and binding effect of this Consent.
[SIGNATURE PAGES FOLLOW]
JR06498802 42916-057152 IREINHART\2811915
CHICAGO/# 1956884.3
(TITLE,)
Assigned to Councilor,
9 &L63
Signature Page to Landlord Consent
IN WITNESS WHEREOF, Landlord has caused this Consent to be made, executed and
delivered the day and year first above written.
Dated as of
LANDLORD:
ADDRESS OF PREMISES:
2009.
Hangar # 115 at the Bangor International
Airport,
154 Maine Avenue,
Bangor, Maine_04401-4342
and
189 Odlin Road
Bangor, Maine 04401-6703
I R06498802 42916-057152 IREINHART\2811915
CHICAGO/# 1956884.3
CITY OF BANGOR, MAINE
WE
Name:
Title:
ADDRESS OF LANDLORD:
Telephone: ()
Telecopier: ()
(TITLE,)
Assigned to Councilor,
x'63
ACKNOWLEDGMENT
STATE OF )
COUNTY OF )
I, , a Notary Public in and for and
residing in said County and State, DO HEREBY CERTIFY THAT
personally known to me to be the same person whose name is subscribed to the foregoing
instrument appeared before me this day in person and acknowledged that s/he signed and
delivered said instrument as their free and voluntary act.
GIVEN under my hand and notarial seal this day of , 2009.
Notary Public
My Commission Expires
J R0649880 2 42916-057152 ;REIN HART\2811915
CHICAGO/# 1956884.3
(TITLE,)
Assigned to Councilor
LEASE
(SEE ATTACHED)
JR06498802 429l6-057152 IREINHARTQ811915
CHICAGO/# 1956884.3
(TITLE,)
Assigned to Councilor,