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HomeMy WebLinkAbout1999-05-24 99-195 RESOLVECOUNCIL ACTION Data 524/99 Item No.: 99-1 5 Item/Subject Ratifying Execution of Documents Returning to a Lease Agreement with the Cabral Company - 396 Griffin Rd. Responsible Department: Community and Economic Development The Cabral Company leases 6.9 acres at 396 Grafin Rd. on which an office building was developed and leased to the State of Maine, Dept. of Human Services. Recently the Council extended the term of the lease agreement to December 31, 2028 as allowed in Wo (2) option periods established in the lease. The Ground Lessor Estoppel Certificate reiterates the terms and conditions of the lease agreement for a lender financing the property. Rent for the property is set through 2008. The Agreement extends the period for negotiating rent for the property for the pend 2009 -2028. r DeparfmJ ead Men{[a e4 Comments: 441 flI � / City Manager Associated Information Finance Director Legal Approval: avyv M Sondto Introduced For X Passage OOT First Reading Page 1 of 1 Referral 99-195 "Signed to Councilor Aube May 24, 1999 CITY OF BANGOR Ratifying Execution of Documents 12egardiag Lease of 396 (TITLE.) �il¢SBlue�............_....._....._....._...._....._......._..._.._........_.._.._..._.._..._.......... ..._. Griffin Road - Cabrel Company, Lessee By W aq CaaacY of My ofBoMlor. =iOLVBD. THAT due actions of the City Manager in executing an Agreement and Ground Lessor Estoppel Certificate relating to the Lease between City of Bangor and Cabrel Company for property located at 396 Griffin Road and Lessee's financing of the property is hereby ratified and confirmed. A copy of said Agreement and Ground Lessor Estoppel Certificate are attached to this Resolve. i c2COONCIL May _ y 264.99 . 19 Passed 99-195 - EES-0L YE inn Lease es 396 Griffin Road - Cabfel Coopavy. Lea AGREEMENT (396 Griffin Road, Bangor, Maine) This agreement is entered into this _ day of May, 1999, by and between CABREL COMPANY (Lessee) end the CITY OF BANGOR (Lessor), with respect to the Indenmm of Lease dared April 1, 1979 from Lessor to Newell B. Krona or al., and assigned to Lessee by assignment dated February 12,1993, and amended by First Amendment dated February 12, 1993 (the Lease), for certain land 0 396 Griffin Avenue, Bangor. BACKGROUND A. By Notice dated March 25, 1999 and received by lessor on March 29, 1999, Lessee has exercised its two options to extend the Lease, pursuant to Article XXI of the Lease. The first extended term will counteracts on 3aauary 1, 2009, and terminate on December 31, 2018 and the second extended term will commence on January 1, 2019 and terminate on December 31, 2028. 1 B. Article XXlofthe Leaseprovides,inpart,that upon exercise ofthe option to extend, the Lessor and Lessee will proceed to negotiate between themselves for the purpose of fixing the rental for the extension tern and if they fail to agree in writing will sixty (60) days after the exercise of the option, then the rental shall be determined through arbitration. C. Lessor and Lessee have agreed to postpone the fime for Wtiating the negotiation or arbitration pursuant to Article XXL I:[HP�qu19JA In consideration of the foregoing and other good and valuable consideration, the panics agree as follows: 1. On orbefore July 1, 2008, Lessor and Lessee will proceed to negotiate between themselves for the purposes of fixing the rental for the extended term beginning January 1, 2009. Ifthe patties have failed to agree in writing on or before October 1, 2008, as to the rent o be paid by Lessee for that extended term, then the patties shall proceed with arbitration as set forth in Article XXI of the Lease. 2. On ar before July 1, 2018, Lessor and Lessee will proceed to negotiate between themselves for the purposes of fixing the rental for the extended term beginning January 1, 2019. Ifthe parties have failed to agree in writing on or before October 1, 2019, a in the rent to he paid by Lessee for that extended term, then the panics shall proceed with arbitration as set forth in Article XXI of the Lease. n This Agreement constitutes the written agreement to be entered into within 60 days after Lessee's exercise of its options to renew. Nothing in this Agreement shall be construed to modify or amend any provisioua of the Lease: 99-195 4. This Agreement maybe modified only by a written agreement signed by Lessor and Lessee. CRYOFBANGOR By: Aw Edward A. Barren City Manager, hereunto duly authorized CABREL COMPANY By: Carol A. Epstein, President, hereunto duly authorized GROUND LESSOR ESTOPPEL CERTIFICATE (396 Griffin Road, Bangor, Maine) To: General Electric Capital Business Asset Funding Corporation Real Estate Department 10900 Northeast Fourth Street, Suite 600 Bellevue, Washington 98004 Loan Number: 001-0003934-001 The undersigned City of Bangor, a Maine body politic ("Lessor"), is the present owner and lessor of certain land and premises (the'Leased Premises') described on Exhibit A attached hereto and incorporated by reference located in Bangor. Maine, pursuant to a Lease Agreement dated April 1, 1979 (hereinafter referred to as the "Ground Lease'), by and between the undersigned! and Newell B. Kumon, Kenneth M. Kurson, Robert A. Kumon, Elaine M. Epstein, Bruce A. Epstein and Carol A. Epstein, collectively as lessee. The interest of the original lessee was assigned to Cabrel Company, a Maine corporation ('Lessee"), by assignment dated February 12, 1993, and the Lease has been amended by First Amendment dated February 12, 1993. Lessor understands that you are about to make a loan (the "Loan') in the amount of up to $3,100,000.00 to be secured by a mortgage (the 'Mortgage') encumbering Lessee's interest in the Ground Lease and the leasehold estate created thereby, which mortgage will be for a term of 10 years. Lessor further understands that it is a condition to the making of the Loan that this ceNficafion be furnished to you. Accordingly, and with the knowledge that you will be relying upon the statements herein made, Lessor hereby certifies as follows: (a) The Ground Lease is in full force and effect and has not been assigned, modified, supplemented or amended in any way, except as stated above. Lessor will not enter into any agreement with Lessee for the voluntary cancellation, surrender or modification of the Ground Lease without your prior written consent. (b) There is no currently existing matured default under the Ground Lease in the payment of rent or in the observance or performance of any other covenant or Wnditicn to be observed or performed by Lessee, and Lessor has no knowledge of any state of facts which, with the giving of notice, passage of time or both, would constitute a default by Lessee under the Ground Lease. (c) The term of the Ground Lease commenced on January 1, 1979, and expires on December 31, 2028. 99-195 (d) Lessor consents to the Mortgage and assignment of Lessee's interest in the Ground Lease to you and to the recording of Me Mortgage with the recorder of the county in which the Leased Premises is located, Lessee shall, however, remain liable to Lessor for full performance of all obligations under the Ground Lease. (e) Upon serving Lessee with notice of any default, Lessor shall also serve a copy thereof upon you. Upon receipt of written notice of any default of Lessee, after service of such notice upon you, you shall have a period of thirty (30) days, to remedy or cause to be remedied the defaults complained of, provided, however, Mat where a default by its nature takes longer than thirty (30) days to cure, you shall have the right to commence the curing of such tlefault within Mirty (30) days after notice aforesaid, and to cure such default within a reasonable time thereafter, and Lessor shall accept such performance• as if the same had been done by lessee. Lessor agrees not to invoke any of its remedies with respect to the Ground Lease (except In the was of emergency repairs) during any time period that you are proceeding with due diligence to cure any default reasonably susceptible of cure by you. (f) If Me Ground Lease terminates for any reason not reasonably susceptible of cure by you (e.g., the rejection of the Ground Lease In a bankruptcy proceeding), Lessor agrees to enter into a new Ground Lease for the remainder of the term, effective as of Me date of such termination at the rent and additional rental and upon the terms, conditions, covenants and agreements as contained in the Ground Lease and equal in priority thereto, provided that: (i) you deliver a written request M Lessor for such new lease within thirty (30) days after the notice of termination has been served upon you together with all sums then due to Lessor under the Ground Lease: (ii) you agree to perform and observe all covenants contained therein on Lessee's part to be performed: and (iii) you remedy any and all other defaults of Lessee then in existence susceptible of performance by you. If the Ground Lease terminates because of the insolvency or bankruptcy of Lessee or some other default not reasonably susceptible of cure by you, then you shall not be requested to cure such default prior to the execution of a new lease. (g) The restrictions on sublease, assignment or other disposition of the Ground Lease which require the consent of Lessor, shall not be binding upon or applicable to you in the content of a foreclosure, dead in lieu of foreclosure, or your sale of the Lessee's interest under the Ground Lease following foreclosure or the taking of a deed In lieu of foreclosure; provided, however, that such previsions shall continue to apply to other transfers of the Lease thereafter. (h) You shall not be responsible for obligations under the Ground Lease unless and until you become the owner of Lessee's leasehold estate, you shall remain responsible only so long as you are the owner, and you will not be liable under the Ground Lease fallowing your sublease or assignment to a third party or your other disposition of Lessee's leasehold estate. (i) Lessee has timely complied with all of the requirements regarding construction and completion of Lessee improvements under the Ground Lease. (j) Landlord shall not place or allow any lien or mortgage on the fee remainder estate of the Ground Lease or the leasehold estate created by the Ground Lease, unless such lien or mortgage is subordinate to the Ground Lease and the Mortgage and all modifications and amendments to such documents or a nondisturbance agreement reasonably satisfactory to You Is furnished by the fee mortgagee. (k) You shall be named as your interest shall appear on any standard mortgage endorsement an any and all casualty insurance covering the Leased Premises, the improvements or any part thereof and the provisions in the Mortgage governing application of the insurance proceeds and any condemnation award shall supersede any contrary provisions in the Ground Lease, provided that Lessor shall be entitled to receive any separate award made to it in a condemnation proceeding. The statements herein made shall be binding upon the undersigned, our successors and assigns, and inures to your benefit and the benefit of your successors and assigns. - IN WITNESS WHEREOF, his Estoppel Certificate has been duly executed and delivered as of May la , 1999. LESSOR: CITY OF BANGOR. a Maine body politic By: �lXddIy— / Title: C i 7-wYlwm e � MMI 8118&1 STATE OF MAINE County of Penobscot ACKNOWLEDGMENT Personally appeared before me, a notary public in and for said state, FNtlnaO A A4NlaTT , who executed and acknowledged the foregoing instrument before me In hialher capacity as the 0 , 4 Y AA6n of the City of Bangor, a Maine body politic. This I? day of May, 1999. [seal? or e.i MAIN L. COB" WARY PUBLIC, NAME MY CoMMISRbk EXPIRES DECEMBER 4 no EXHIBIT A A parcel of land located at Bangor International Airport, Bangor, Maine, described as follows: Lot No. 14AB, Plan of B.I.A. Commerciallodustnal Park, dated June 7, 1976, recorded in File Nos. 0-62646 and D -626-76A, Penobscot Registry of Deeds, and revised August 28, 1978, recorded as Plan D86-78, Penobscot Registry of Deeds. 5OW35001 Al lam I