HomeMy WebLinkAbout2001-10-22 01-401 ORDERItem No. 01-001
Date: 10-22-01
Item/Subject: ORDER - Authorizing the City Manager t0 Execute an Agreement & Consent of
Landlord Document Concerning the Lease of 240 Odlin Road
Responsible Department: Legal
Commentary:
In November 1982, the City of Bangor leased the parking lot adjacent to the Ground Round on
Odlin Road to Financial Realty Trust for 50 years. The Cdy's pard is assessed as 240 Odlin Road,
tax map R17, lot 13A. Dales R Us, the sumessor to Fnandal Realty Trust, now ovens and operates
the Ground Round Restaurant and is seeking to refinance. As part of this refinancing, Peoples
Heritage Bank has requested that the City sign an Agreement & Consent of Landlord document,
to permit People's Heritage to take over the lease if Dorks R Us ever defaults on the mortgage.
Article X11 of the lease expressly gives the tenant the right to mortgage Its leasehold Interest.
The B&ED Committee recommended approval at its October 16, 2001 meeting.
Department Head
Recommend approval.
City Manager
Assouated Information: /d....-...,Yy 4"O -
Budget Approval:
Ac / v
Finance Directs
_t Passage --Consent
_ First Reading Page_ of_
Referral
01-001
AssigmAWCouncilor reldecei Octuher 22. 2001
CITY OF BANGOR
(MLE.) ORDER, Authorizing the City Manager to Execute an Agreement &
Consent of Landlord Document Concerning the Lease of ]AO Odlin Road
BE n ORDERED by the qty Coundl Of tho CRy of Bangor,
That the City Manager, Edward A. Barrett, is hereby authorized to execute an
Agreement & Consent of Landlord document, consenting to Dorks R Lls's mortgage of
fts leasehold interest in the City's parking lot at 240 Odlin Road , a mpy of which is
attached hereto.
COUNCIL
22. 2001
# nt-mt
ORDER
(TITLE,) Authori:ioe rhe city monomer to
grereee an Agreement a Codsenr of lanalora
Document Concemiug the Leese of 260 Odlio.
PEOPLES HERITAGE BANK, N.A.
AGREEMENT AND CONSENT OF LANDLORD
ISE: LEASEHOLD MORTGAGE
The CITY OF BANGOR, a municipal body, both corporate and politic, having a principal
office in the City of Bangor, County of Penobscot and State of Maine and with a mailing address of
73 Harlow Street, Bangor, Maine 04401 (the "Landlord") is the Landlord nada a Lease of a
parcel of land situated a or near Odlin Road in the City of Bangor, County of Penobscot and State
of Maine and more pardcularly described in SCHEDULE A arched hereto, (the "Lease") now
with DORKS R US, a Maine genual partnership with an office in the Town of Freeport, County
of Cumberland and State of Maine and with a mailing address of 500 U.S. Route 1, Freepon.
Maine 04032 ("Tenant"). Said original Lease, dated November 15, 1982, a memorandum of
which is recorded in the Penobscot County Registry of Deeds in Book 3343, Page 344 was
entered inm by the Landlord, as Lessor, and Sbelden Hartstone and Barry Harostone, as
Tru s erf Fina-dxl Repay Trust ("Tr-wtees^), as Lessees, rad lm rk�d f.:t.her entered imo
a sub -lease dated November 14, 1982 by and between Landlord, as Lesmr, the Trustees, as
Lessee, and ENTERTAINMENT, INC., a Maine corporation, as Sub -Leases (said lease and
sub -lease in which the tenants interest therein having been assigned by the Trustees to
Entenaimnenq Inc. and, thereafter, by Entertainment, Inc. to the Tenant herein, the latter by
Assignment of Lease dazed April 24,1988 and recorded in said Registry of Deeds in Book 4219,
Page 238, which Assignmem of Lease was consented to by the City of Bangor by Agreement
dated April 29, 1988 and recorded in said Registry of Deeds in Book 4218, Page 209. The City
of Bangor, as Landlord, hereby:
1. Consents to the Tenant's Scanting of a leasehold mortgage of Teresm's leasehold interest to
PEOPLES HERITAGE BANK, N.A., a national banking association with a place of
business in Portland, Maine, and a mailing address of One Portland Square, P.O. Bax
9540, Portland, Memo 04112-9540 ("Rank"), and the granting of a security interest in
leazehold improvements and fixtures as security for Tenant's obligations to Bank;
2. Acknowledges that all improvements now on said property and any leasehold
improvements installed or constructed by Tenant remain the mle property of Tenant and
may be removed by Tenant or its asvig ice in accordance with the teens of said Lease;
3. Agrees that m long as said Leasehold Mortgage remains outstanding, the following
provisions shall apply notwithstanding arty provisions to the contrary m the Lease:
a Landlord shall save upon the holder of the Leasehold Mortgage and Security
Agreement a written nofice of any default by Tenant under the Lease, either (i) as
provided in the Lease for a notice of default to Tenant, or (ii) in any event, not less
than 30 days prior to my termiuntion of the Lease for failure to pay the base and and
not less than 60 days pow w any uncommon for failure to perform other obligations
thereunder. No notice ofammunition shall be deemed to have been duly carried out
unless and until such service is made.
b. th case Tenant shall be in default under the Lease, the holder of the Leasehold
Mortgage and Security Agreement shall, within the period and otherwise as herein
Provided, have the right to remedy such demah, or muse the same to k remedied,
and Landlord shall accept such performance by or at the instance of such holder as if
the same had been made by Tenant.
c. No event of default in respect of the performance of work required to be performed,
or of aces to be done, or of conditions to be remedied under the Lease or as provided
in subseaion (a) hereunder shall be grounds for renovation as against the holder of
the Leasehold Mortgage and Security Agreement if steps shall, in good faith, have
been commenced within the woe permitted therefor to rectify the same and shall be
prosecuted to completion with diligence and continuity.
d. Anything contained in the Lease to the contrary notwithstanding, upon the
occurrence of an event of default other than an event of default due to a default in
the payment of money, Landlord shall take no action to effect a termination of the
Lease without first giving to the holder of the Leasehold Mortgage and Security
Ageement written notice thereof as provided in subsection (a) and a reasonable
time thereafter within which either (i) ro obtain possession of the Imsed property
(including possession by a receiver), or hi) to mandate, prosecute and complete fore-
closure proceedings or otherwise acquire Tent's interest under the Lease with
diligence. Such holder upon obtaining possession or acquiring Tenant's interest
under the Lease, shall be required promptly to cure all defaults then reasonably
susceptible of being curd by such holder. Provided, however, that: ]r)such holder
shall not be obligated to continue such possession or to continue such foreclosure
proceedings after such defaults shall have bean curd; (u) nothing herein contained
shall preclude Landlonl, subject to the provisions of this Article, from exercising
any rights or remedies under the Lease with respect to any other default by Tent
during the pendency of such foreclosure proceedings; (iii) such holder shall agree
with Landlord in writing to comply during the period of such forbearance with such
of the terms, conditions and covenants of fire Lease as are reasonably susceptible of
being complied with by such holder. Any default by Tent not reasonably
msceph'ble of being cured by such holder on account of insolvency or voluntary and
involuntary insolvency or reorganisation proceedings, receivership, or an assign-
ment for the benefit of creditors or the like shall be deemed to have been waived by
Landlord Won completion of such foreclosure proceedings or upon such acquisition
of Tenant's urcaert in the Lease, except that any of such events of default which are
reasonably susceptible of being cured after such completion and acquisition shall
than be cured with reasonable diligence. Such holder, or his designee, or other
purchaser in foreclosure procmiings may become the legal owner and holder of the
Lease through such foreclosure proceedings or by an outright assignment of the
Lease in lieu of foreclosure.
e. In the event of the termination of the Lease prior to the expiration of we term,
Landlord shall serve upon the holder of such Leasehold Mortgage road Security
Ageemen, written ounce that the Lease has burn committed together with a
statemrnt of arty and all sums which would at that time be due under the Lease but
for such temtivation, and ofall otherdmaults, if any, under the Lease then known to
Landlord. Such holder, or its designee, shall thereupon have the option to obtain a
new lease in accordance with and upon the following terms and conditions:
Such new lease shall be entered into at the reasonable cost of the
Vernon thereunder, shall be effective as of the date of termination of
the Lease, and s1W1 be for the remainder of the tern of the Lease and
at the rem and upon all the agreements, tennis, covenants and
conditions thereof, including any applicable rights of renewal. Such
new lease shall require the tenant thereunder to perform any
unfulfilled obligation of Tent under the Lease which is reasonably
susceptible of being performed by such tent The holder of such
new lease, or designee, may assign its interest in such Lease and
shall thereupon be released from all liability for due performance or
Observance of the revenuers and conditions in such lease contained
on Tenant's pan to be performed and observed from and after the
date of such assignment, provided that the assignee from such holder
shall have assumed such Lease.
E If by reason of its election not to exercise or take any extension period or for any
Other reason whatsoever, Tenant shall not become entitled to extend the Lease for
any extension term provided for in the Lease, Landlord shall serve upon the bolder
of such Leasehold Mortgage and Security Agreement written notice thereof and
such holder shall have the option, upon written request served upon Landlord within
60 days of receipt of the notice, to obtain from Landlord a new lease of [he demised
premises for such extension term in accordance with and upon the same terms and
conditions as provided in subsection(a)above.
g. Any notice or other communication which is requved under the Lease shall be in
writing and shall be saved by raAfiM mail, addressed as set forth in the Leasehold
Mortgage and Security Agreement or this agreement or m such, otheraddress as shall
be designated by such holder by notice in writing given by ratified mail.
IL Anything herein contained to the contrary notwithstanding, the provisions of this
Article shall insure only to the benefit of the holders of the Leasehold Mortgage and
SecutityAgreement.
L No agreement between Landlord and Tenant, nor any election by Teream under the
terms of said Lease, modifying, canceling or surrendering the Lease, or the Tenant's
rights or Landlord's obligations thereunder, shall be effective %bboa the prior
written consent of the holder of the Leasehold Mortgage and Security Agreement
j. No anon of the interests of Landlord and Tenant herein shall result in a merger of
the Lease in the fee Interest.
Dated: 10 1*1 a1 2001
LANDLORD:
j�D'NESS:
CITY OF BANGOR
�A6, A%Z11_
B
V s Edward A. rLY¢i[
It
City Manager
STATE OF MAINE
CUMBERLAND, SS. Oct. 30 ,2001
Personally appeared the above named Edward A. Barr tin his/her capacity as
rity lde f the City of Bangor, and aclmowlarged the execution of the foregoing hisnu-
ment to be his/her free not and deed in said capacity, and the Gee act and deed of the City of
Bangor.
4B rem
_ aiv Attorney at Law
U E
Printed Name -
SCHEDDLEA
A certain lot or parcel of land situated in Bangor, County of Penobscot State of Maine.
bounded and described as follows, viz:
Beginning at a point on the East side of the Calla Road at the southwest comer of a
parcel of land described in a deed from David F. Bell and Dorothy A. Bell to Leroy W. Cole and
Florence E. Cole dated January 6, 1955 and recorded in Penobscot County Registry of Deeds in
Volume 1470, Page 223; thence South zero degrees thirty-six minutes fifty-one seconds West
(S 00 36' 51" W) by and along the easterly line of said Dalin Road a distance of one hundred
fifty-one and twenty-eight hundredths feet (151.28) to a point; thence South thirty-seven degrees
three minutes fifty-nine seconds East (S 37° 3' 59" E) a distance of two hundred twenty-seven
and forty-four hundredths flet (227.44') to a point thence North fifty-two degrees fifly-six
minutes one second East (N 52° 56' 1"E) a distance of two hundred feet (200) to a point; thence
North thirty-seven degrees three minutes fifty-nine seconds West (N 37° 3' 59" W) a distance of
two hundred sixty-two and eight tenths fret (262.8) to a point in the South line of said Cole Ind:
thence North eighty-eight degrees fifty-six minutes forty-four seconds West (N 880 56' 44" R)
by and along said Cole South line a distance of one hundred thirty-six and sixty-eight hundredths
feet (136.68) to the easterly line of said Mid Road and the point of beginning.
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