HomeMy WebLinkAbout1998-05-11 98-212 ORDERCOUNCIL ACTION
Item No. 98-213
Date Mav 11, 1998
Item/Subject: Authorizing Execution of a Credit Enhancement Agree-
ment with Bank of America, FEB, for Vision Care of Maine - Bangor,
LLC (VCOM) -- Stillwater Avenue Project
Responsible Department: Legal
The attached Council Order is presented in substitution for CO.
98-194, which was postponed at the Council's April 27th meeting.
The attached Order would authorize execution of a "Credit
Enhancement Agreement" with Bank of America, FEB relative to the
Vision Care of Maine - Bangor, LLC (VCOM) project on Stillwater
Avenue. Under the terms of the agreement, the City of Bangor would
create and maintain a $625,000 security fund, for a period of five
(5) years, to assure VCOM's repayment of project financing to the
Bank of America.
when complete, the VCOM project will create 30 to 35 new jobs and
will generate approximately $200,000 inreal estate and
personal property taxes per year. The City's assistance in
providing the $625,000 security fund is intended to allow the
project to go forward, in order to secure the project's economic
and tax benefits.
(continued on next page)
Department Head
Manager's Comments:
City Manager
Associated Information: Credit Enhancement Agreement
Budget Approval:
Finance Director
V" V
City SOlicitoI U]
x Passage
First Reading
Referral Page 1 of
98-212
A@eFato Cameiw Tyler May it, 1998
CITY OF BANGOR
Authorizing Execution of a Credit L edncement
(TITLE.) (®rUr, .......
Agreement with Bank of America, PSH for vision Care o` Maine
- Bangor, LLC (VCOM) -- Stillwater Avenue Project
By t CUy Couneft of Cit afBa ..
ORDE RM
THAT the City Manager is hereby authorized, on behalf
of the City of Bangor, to execute and deliver a "Credit Enhancement
Agreement" with Bank of America, EBB, in the form attached, to
provide financial assurances in connection with Vision Care of
Maine - Bangor, LLC's proposed development project on Stillwater
Avenue, as set out in the Credit Enhancement Agreement.
Upon execution of the Credit Enhancement Agreement
by. both parties, and appropriation of necessary funds by the City
Council, the City Finance Director is hereby authorized to
establish, hold, invest, administer and expend these curity fund"
in accordance with the Credit Enhancement Agreement
IN CITY COUNCIL
Nay ll, 1998
Notion for. Passage Made and
Seconded Vote: 8 no, 1 yes
Councilors voting n Aube,
Baldaccl, Crowley, Farnbam,
Leen, Palmer, Entree d Tyler
Councilor voting yes: Woodcock
Order Failed Passage
CITY Ctjpw
98-212
ORDER
Title, notboxiaing Execution of a Credit
Enban ent Agreement with Bank of America,
FSB far vision Care of Meme - BanO ,
LIC. (VCOR)'='8Ei11wAEe3'AVeAue'TioMi
,�.. .'.µ..'./.^/. .....................
AwiglneAd to
... V ..l ,.s.s..1. ....
U Councilman
I
The attached version of the Credit Enhancement Agreement, dated May
1, 1998, increases the amount of the security fund from the
$500,000 originally contemplated in C.O. 98-199 to $625,000. Of
the $625,000 total, $500,000 would be reserved to assure VCOM's
repayment of loan principal due on a note in that amount. The note
is incorporated by reference in the agreement. The additional
$125,000 would be reserved to assure VCOM's payment of loan
interest falling due during the first three years of the loan. The
May Tat version of the Credit Enhancement Agreement is consistent
with a prior Council Order relating to the project, C.O. 96-368.
Under Article VI, Section 12 of the City Charter, the City may not
lend its credit to any private person. However, 30-A MRSA 5 5921
authorizes the City to "raise or appropriate money for any public
purpose." The Maine Law Court has held that economic development
is a "public purpose" sufficient to support the expenditure of
public funds. Accordingly, the City maV provide loan assurances On
private development projects for the purpose of economic
development, provided that the City's obligations are fully funded
by an appropriation from existing funds at the time the City's
obligations are created. A separate appropriations resolve has
been prepared to satisfy this requirement.
98-212
REVISED DRAFT 05/01/98
THIS AGREEMENT, made and entered into as of the day of
May, 1998, by and between the CITY OF BANGOR, a municipal corporation
organized and existing under and by virtue of the laws of the State
of Maine, located at Bangor, Penobscot County, Maine, and BANK OF
AMERICA, FSB, a federal savings bank regularly doing business in the
State of Maine (hereinafter "Bank of America"),
N j T N FZ ai Z B T H:
Recital;
1. Bank of America is the principal lender to Vision Care of
Maine - Bangor, LLC (hereinafter "VCOM"), a Maine limited liability
company, which seeks to construct a 24,000 square foot ophthalmo-
logical care center In Bangor, Maine, at a total project cost of $5.8
million for site acquisition, project construction and related
costs. Bank of America's financing commitment for VCOM's Bangor
project amounts to $4.29 million of the $4.5 million project
financing.
2. Bank of America's financing of VCOM's Bangor project
includes a certain promissory note from VCOM to Bank of America, in
the amount of $500,000, to be executed. A copy of the $500,000
Promissory note is attached to this Agreement and is incorporated
herein by reference (hereinafter "VCOM Mote").
3. In addition to amounts invested or financed for site,
acquisition and construction, VCOM plans to lease $4 million of
taxable personal property for use in the Bangor facility, when
completed.
4. VCOM's Bangor project will provide 50 jobs, 30 to 35 of
which will be new positions. In addition, VCOM's Bangor project will
98-212
increase the City of Bangor's real estate tax base by an estimated
$5.375 million, thereby generating an estimated $125,500 per year in
new tax revenues, at Current property tax rates, plus additional
taxes on VCOM's leased personal property.
5. In order to allow VCOM's Bangor project to go forward,
VCOM and the Bank of America have requested certain assurances from
the City of Bangor, as set out further below, with respect to the
VCOM Note.
6. The City Council of the City of Bangor has authorized
execution of this Agreement on the City's behalf, by passage of City
Council Order 98-194 on May 11, 1998.
THEREFORE, in consideration of the economic benefits and tax
base enhancement of VCOM's Bangor project to the City of Bangor, and
as an inducement to Bank of America to extend financing to VCOM for
the Bangor project, and in consideration of the mutual promises and
covenants hereinafter contained, and pursuant to Bangor City Council
Order 98-194, the City of Bangor and Hank of America hereby agree as
follows:
Agreement
1. Security Fund. The City of Bangor agrees to create and
fund a security fund in the amount of $625,000, as security for
VCOM's repayment of amounts to become due under the VCOM Note. Of
the $625,000, a maximum of $125,000 shall be available to secure
payment of loan interest, as provided further below. The remaining
$500,000 balance shall be available to secure payment of loan
principal, as provided further below. The security fund shall be
created no later than May 30, 1998 by an appropriation of $625,000
cash or U.S. Treasury securities of equal market value from the City
of Bangor's existing reserves. The City of Bangor shall provide Bank
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of America with evidence of the City's appropriation to the security
fund. The security fund shall be held by the City of Bangor, unless
drawn upon by Bank of America as provided below. Bank of America
shall be entitled on request to review any securities held in the
security fund, to verify their market value. Bank of America may
require the City of Bangor to supplement the security fund, only to
the extent that changes in the market value of any securities held in
the security fund may reduce the fund's value below $625,000. Upon
timely payment or prepayment to Bank of America by VCOM of interest
or principal amounts due under the WON Note and secured by this
Agreement, the City of Bangor may reduce the balance held in the
security fund by an amount equal to the amount of VCOM's payments or
prepayments. Unless drawn upon as provided below, all funds and
securities held in the security fund shall remain the sole property
of the City of Bangor, and shall not be subject to attachment or
execution by Bank of America, VCOM, or their respective creditors,
receivers, or trustees. The security fund shall not serve as
security or collateral for any obligation of VCOM or any other
person, other than VCOM's payment obligations to Bank of America
under the VCOM Note.
2. Grant of Collateral Security Interest. For the purpose of
securing VCOM's payment to Bank of America of amounts to become due
under the VCOM Note, the City of Bangor hereby grants Bank of America
a collateral security interest in the security fund to be created
under paragraph 1 above. Bank of America's security interest shall
be subject to and limited by the provisions of this Agreement, other
provisions of law relating to the creation and enforcement of
security interests notwithstanding.
3. f Collateral Rights. The
3
The attached Version of the Credit enhancement Agreement, dated May
1, 1998, increases the amount of the security fund from the
$500,000 originally contemplated in C.O. 98-194 to $625,000. Of
the $625,000 total, $500,000 would be reserved to assure VCOM's
repayment of loan principal due on a note 1n that amount. The note
is incorporated by reference in the agreement. The additional
$125,00D would be reserved to assure VCOM's payment of loan
interest falling due during the first three years of the loan. The
May 1st version of the Credit Enhancement Agreement is consistent
with a prior Council Order relating to the project, C.O. 96-368.
Under Article VI, Section 12 of the City Charter, the City may not
lend its credit to any private person. However, 30-A MRSA 4 5721
authorizes the City to "raise or appropriate money for any public
purpose." The Maine Law Court has held that economic development
is a"public purpose" sufficient to support the expenditure of
public funds. Accordingly, the City maY provide loan assurances on
private development projects for the purpose of economic
development, Provided that the City's obligations are fully funded
by an appropriation from existing funds at the time the City's
obligations are created. A separate appropriations resolve has
been prepared to satisfy this requirement.
98-212
REVISED DRAFT 05/01/98
THIS AGREEMENT, made and entered into a8 Of the day Of
May, 1998, by and between the CITY OF BANGOR, a municipal corporation
organized and existing under and by virtue of the laws of the State
of Maine, located at Bangor, Penobscot County, Maine, and BANK OF
AMERICA, FSB, a federal savings bank regularly doing business in the
State of Maine (hereinafter "Bank of America"),
W I T N E Q 3 E T H:
Recitals
1. Bank of America is the principal lender to Vision Care of
Maine - Bangor, EIC (hereinafter "VCOM"), a Maine limited liability
company, which seeks to construct a 24,000 square foot ophthalmo-
logical care center in Bangor, Maine, at a total project cost of $5.8
million for site acquisition, project construction and related
costs. Bank of America's financing commitment for VCOM's Bangor
project amounts to $4.29 million of the $4.5 million project
financing.
2. Bank of America's financing of VCOM's Bangor project
includes a certain promissory note from VCOM to Bank of America, in
the amount of $500,000, to be executed. A copy of the $500,000
promissory note is attached to this Agreement and is incorporated
herein by reference (hereinafter "VCOM Note").
3. In addition to amounts invested or financed for site.
acquisition and construction, VCOM plans to lease $4 million Of
taxable personal property for use in the Bangor facility, when
Completed.
4. VCOM's Bangor project will provide 50 jobs. 30 to 35 of
which will be new positions. In addition, VCOM's Bangor project will
98-212
increase the City of Bangor's real estate tax base by an estimated
$5.375 million, thereby generating an estimated $125,500 per year in
new tax revenues, at current property tax rates, plus additional
taxes on VCOM's leased personal property.
5. In order to allow VCOM's Bangor project to go forward,
VCOM and the Bank of America have requested certain assurances from
the City of Bangor, as set out further below, with respect to the
VCOM Note.
6. The City Council of the City of Bangor has authorized
execution of this Agreement on the City's behalf, by passage of City
Council Order 98-194 on May 11, 1998.
THEREFORE, in consideration Of the economic benefits and tax
base enhancement of VCOM's Bangor Project to the City of Bangor, and
as an inducement t0 Bank Of America t0 extend financing to VCOM for
the Bangor project,and in consideration of the mutual promises and
covenants hereinafter contained, and pursuant to Bangor City Council
Order 98-194, the City of Bangor and Bank of America hereby agree as
follows:
Agreement
1. Security Fund. The City of Bangor agrees to create and
fund a security fund in the amount of $625,00D, as security for
VCOM's repayment of amounts to become due under the VCOM Note. Of
the $625.000, a maximum of $125,000 shall be available to secure
payment of loan interest, as provided further below. The remaining
$500,D00 balance shall be available to secure payment of loan
principal, as provided further below. The security fund shall be
created no later than May 30. 1998 by an appropriation of $625.000
cash or U.S. Treasury securities of equal market value from the City
of Bangor's existing reserves. The City of Bangor shall provide Bank
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9s-212
of America with evidence of the City's appropriation to the security
fund. The security fund shall be held by the City of Bangor, unless
drawn upon by Bank of America as provided below. Bank of America
shall be entitled on request to review any securities held in the
security fund, to verify their market value. Bank of America may
require the City of Bangor to supplement the security fund, only to
the extent that changes in the market value of any securities held in
the security fund may reduce the fund's value below $625,000. Upon
timely payment or prepayment to Bank of America by VCOM of interest
or principal amounts due under the VCOM Note and secured by this
Agreement, the City of Bangor may reduce the balance held in the
security fund by an amount equal to the amount of VCOM's payments or
prepayments. Unless drawn upon as provided below, all funds and
securities held in the security fund shall remain the sole property
of the City of Bangor, and shall not be subject to attachment or
execution by Bank of America, VCOM, or their respective Creditors,
receivers, or trustees. The security fund shall not serve as
security or collateral for any obligation of VCOM or any other
person, other than VCOM's payment obligations to Bank of America
under the VCOM Note.
2. Grant of Collateral Security Interest. For the purpose of
securing VCOM's payment to Bank of America of amounts to became due
under the VCOM Note, the City of Bangor hereby grants Bank of America
a collateral security interest in the security fund to be created
under paragraph 1 above. Bank of America's security interest shall
be subject to and limited by the provisions of this Agreement, other
provisions of law relating to the creation and enforcement of
security interests notwithstanding.
3. Time Limit for f Collateral Rights. The
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security fund shall not serve as security or collateral for any
default of VCOM's repayment obligations under the VCOM Note with
respect to loan principal, occurring on or after June 1, 2003; nor
with respect to defaults in payment of loan interest occurring on or
after June 1, 2001. With respect to any default of VCOM's payment
obligations under the VCOM Note occurring prior to June 1, 2003, all
interests of the Bank of America in the security fund shall terminate
as of June 30, 2003, unless notice of default has been sent in
accordance with, and within the time required, under paragraph 5(a)
below.
4. Other Limitations. The security fund shall not serve as
collateral or security for any default by VCOM of its loan
obligations, other than a default of VCOM's payment obligations under
the VCOM Note. For example, the security fund shall not be used to
satisfy VCOM's obligations in respect to payment of any taxes; to
maintain any insurance; to remove any encumbrances; to restore anY
impairment of the value of other collateral; or to repay any project
financing other than interest or principal amounts due under the VCOM
Note. The security fund shall not be used to satisfy any obligation
Of VCOM in respect t0 late fees, penalties, legal expenses,
collection fees, or other costs. The maximum aggregate amount that
may be drawn from the security fund in satisfaction of VCOM's payment
obligations under the VCOM Note shall not exceed $625,000, notwith-
standing any default or defaults by VCOM in excess of that amount.
The City of Bangor shall have no obligation to replenish the security
fund beyond the original $625,000 amount. No amendment, allonge,
forebearance, extension or modification of the VCOM Note by the
parties to that Note shall operate to extend, increase, or otherwise
modify the City of Bangor's obligations under this Agreement_ All
Cf
90-212
interest amounts earned on funds or securities held by the City of
Bangor within the security fund shall accrue to and remain the sole
Property of the City of Bangor, and shall not be available as
security for payment of the VCOM Note.
5. Ca R The Bank of
America's collateral rights in the security fund shall be exercised
as follows:
a. Notice of Default. Whenever VCOM shall fail to make
any interest or principal payment due under the VCOM Note and
secured by this Agreement, Bank of America shall send a
written notice of default to the City of Bangor. The notice
of default must be sent by certified mail, return receipt
requested, to the City of Bangor's agent at the address listed
below, and must be mailed within thirty (30) calendar days
after the due date for the payment concerned. A Copy of any
written notice of default sent to VCOM shall be sufficient for
this purpose, if sent in the manner and within the time
provided in this subparagraph. No claim may be made against
the security fund with regard to any required repayment,
unless a notice of default has first been sent with respect to
the repayment concerned, in accordance with this subparagraph.
b. Notice of Claim. Not less than sixty (60) nor more
than 120 calendar days after the scheduled due date for the
payment concerned, Bank of America shall send a notice Of
claim to the City of Bangor, reciting that VCOM has failed to
make the scheduled payment when due; that a notice of default
was previously sent to the City of Bangor as required by
paragraph 5(a) above; and that the defaulted repayment or a
stated amount thereof remains unpaid. The notice of claim
5
shall be signed and verified by an officer of the Bank of
America, and shall be sent to the City of Bangor's agent by
Certified mail, Ieturn receipt requested. Failure t0 send a
notice of claim in accordance with this subparagraph with
respect to any amount due under the VCOM Note shall bar any
claims against the security fund with respect to the amount
concerned.
c. Payment of Claims. Within thirty (30) calendar days
after receipt of a notice of claim in proper form as provided
In paragraph 5(b) above, the City of Bangor shall pay to Bank
of America the amount stated in the notice of claim. Upon
receipt of the City of Bangor's payment, Bank of America shall
execute and deliver to the City of Bangor a partial assignment
of its claims against VCOM and against any personal signatory
or guarantor of VCOM's debt under the VCOM Note, in the amount
of the payment concerned. Bank of America's assignment shall
be in the form attached to this Agreement. The Bank of
America's Written assignment shall not be deemed to include an
assignment or partial assignment of collateral interests under
any mortgage or security agreement, including this Agreement.
Bank of America shall reasonably cooperate with any efforts by
the City of Bangor to obtain personal judgments against VCOM
or its personal signatories or guarantors, pursuant to Bank of
America's written assignment. Amounts recovered by the City
of Bangor pursuant to Bank of America's written assignment
shall not be added to the security fund.
6. Limited Obliaaiion. The City of Bangor's obligations
under this Agreement shall be limited obligations, payable solely
from the $625,000 to be appropriated for this purpose by the Bangor
City Council. In the event the Bangor City Council shall fail to
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98-212
appropriate the necessary funds or securities as provided herein,
this Agreement shall be void. The City of Bangor's obligations under
this Agreement shall not constitute a general debt or a general
obligation or charge against the City. This Agreement does not
constitute a pledge of the City's faith, credit, or taxing power. By
execution of this Agreement, the City of Bangor does not assume any
obligation or liability except as expressly provided herein.
7. No Trust Created. All rights and remedies of the parties
to this Agreement shall be deemed to be contractual in nature.
Nothing in this Agreement shall be deemed to create or impose any
agency, trust, or fiduciary obligation on the City of Bangor or its
officers or employees, with respect to the Bank of America, VCOM, or
any other person.
8. Remedies. In the event of a breach or default of this
Agreement by the City of Bangor, or a claimed breach or default, the
Bank of America's sole remedy shall be a cavil action for payment of
amounts due hereunder, to be paid solely from the security fund or
cash proceeds thereof. The benefits of this Agreement shall be
deemed personal to the Bank of America, its successors and assigns.
This Agreement shall not be construed to confer any rights, benefits
oI remedies On VCOM, Its Co-slgnatories, guarantors, successors,
assigns, creditors, receivers or trustees. Any failure by Bank of
America to preserve or present a claim against the security fund
shall not be a basis for claims by any other person.
9. Effective Date. This Agreement shall be deemed effective
as of May 15, 1998. It shall terminate as provided in paragraph 3
above; provided that claims against the security fund for which a
notice of default was properly given prior to June 30, 2003 may be
made within the time provided in paragraph 5(b).
98-212
10. Access to Books and Records. Bank of America shall
provide the City of Bangor with reasonable access tO all books and
records relating to VCOM's loan account, as necessary to verify
VCOM's payment history and claims made against the security fund.
11. Subseauent Recoveries. In the event the Bank of America
shall subsequently recover any amount paid to the Bank of America by
the City of Bangor from the security fund, by civil action,
foreclosure, or otherwise, the net amount so recovered, after
satisfaction of prior claims and payment of all expenses related to
the recovery, shall be reimbursed to the City of Bangor. In any
foreclosure action or other recovery action filed by the Bank of
America against VCOM, its co -signatories or guarantors, Bank of
America shall include in its claim all amounts paid by the City of
Bangor from the security fund, that have not been separately
recovered by the City of Bangor pursuant to the Bank's assignment
under paragraph 5(c) above.
12. Assignment and Succession. This Agreement shall bind and
be for the benefit of the Bank of America, the City of Bangor, and
their respective successors and assigns. Bank of America shall not
assign its interests in this Agreement to any person, except to a
bank or other financial institution, without the prior written
consent of the City of Bangor.
13. No Personal liability Officials the City. No
covenant, stipulation, obligation or agreement Of the City Contained
herein shall be deemed to be a covenant, stipulation or obligation of
any present or future elected or appointed official, officer, agent,
servant or employee of the City in his individual capacity and
neither the members of the City Council of the City nor any official,
officer, employee or agent of the City shall be liable personally
0
98-212
with respect to this Agreement or be subject to any Personal
liability or accountability by reason hereof.
14. Counterparts. This Agreement may be executed in any
number of counterparts, each of which, when so executed and
delivered, shall be an original, but such counterparts shall together
constitute but one and the same Agreement.
15. Governing Law. The laws of the State of Maine shall
govern the construction and enforcement of this Agreement.
16. Venues for Suits. Any action to enforce the terms of this
Agreement shall be brought in the Superior Court for Penobscot
County, Maine. The parties mutually consent to dismissal of suits
brought in any other forum.
17. Notices. All notices, certificates, requests,
requisitions or other communications by the City and Bank of America
pursuant to this Agreement shall be in writing and shall be
sufficiently given and shall deemed given when mailed by first class
mail, postage prepaid, addressed as follows:
If to the City: City Manager, City of Bangor, 73 Harlow
Street, Bangor, Maine 04401.
If to Bank of America:
Each of the parties may, by notice given to the other, designate any
further or different addresses to which subsequent notices,
certificates, requests or other communications shall be sent
hereunder.
18. Amendments. This Agreement may be amended only with the
concurring written consent of all of the parties hereto.
19. Net Agreement. This Agreement shall be deemed and
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construed to be a "net agreement', and the City shall pay absolutely
net during the term hereof all payments required hereunder, free of
any deductions, and without abatement, deductions or setoffs.
20, invalidity. In the event a court of competent
jurisdiction shall for any reason determine this Agreement to be
invalid, then this Agreement shall be deemed void, without further
recourse by either party.
21. Integration. This Agreement completely and fully
supersedes all other prior or contemporaneous understandings or
agreements, both written and oral, between the parties, relating to
the specific subject matter of this Agreement and the transactions
contemplated hereby.
22. Seal. This Agreement shall not be deemed to be an
instrument under seal.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers as of May 15,
1998.
CITY OF BANGOR
(BY)
Witness
(Its)
BANK OF AMERICA
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98-212
STATE OF MAINE
PENOBSCOT, as. May 1998
Then personally appeared the above-named EDWARD A. BARRETT,
City Manager, and acknowledged the foregoing instrument to be his
free act and deed in his said capacity, and the free act and deed of
said body corporate.
Before me,
STATE OF
Notary Public/Attorney-at-Law
Printed Nene:
as. May 1998
Then personally appeared the above-named in
his Capacity as of Bank of America, and
acknowledged the foregoing instrument to be his free act and deed in
his said capacity, and the free act and deed of said corporation.
Before me,
Notary Public/Attorney-at-Law
Printed Name:
11
04/28/1998
98-212
INTEREST ONLY/VARIABLE RATE LOAN
Bankof America CONVERTING TO AMORTIZING /&YEAR
TREASURY RATE INDEX LOAN
Oaaut twerest Rue and Payment Anises)
(Prepayment Fce / Nei Prtpaymmm Bader 20% Allowed)
(Melce 504 Loyd)
Com Na.:
Maturity Due
PROMISSORY NOTE SECURBD BY MORTGAGE
$300,000.00 04-28-98 Beeper. Mame
This Promissory Noce Secured by Mortgage ("Nae") u made as of 04.28-98 by Vision Care of Maine - Bangor,
L.L.C., a Maine minted habit cammum, and Clarence Property Mawgeeem Company, a Meure ImNd partnership
("Bortowm") in favor ofBmk ofAmerim PSB, a hdmel wvmgs bank ("Bang").
FOR VALUE RECEIVED. Bmromer promised w pay to the older a Bang a Bmg's low servicing center or
Rmeho Coidwa, California, or a each der place u Emir from time to time may desliiiaale, the p rims l sum of
Five NuMrd Thuysanid ad W/t00Ne Dower (U.S. 53( .00.00) (the'Maximum hum Amount'), or so much of
that sum as may be advamed under No Now, plop ionises[ is specified herein. ThB Note evidewes a rem nit ion
mm ("loan') Bom Banger Basower.
This Now b sccmd by a CONSTRUCTION MORTGAGE with AssigmnmA t f Rend, Samrity Agreement and
Pixture Fi4ng ("Mongage'T covering contain mei ad pusoeJ ProPmtY. as dm®dedcribd ldm "PropertyiIt may also
be lamed by mbar mllsmJ. tris Nae mtl the Mmfgage are two dseverat hum Documerw,mdeBnd utd daigemd
in aCANSTRlIC'p10N Ism Aeremoone CLom Agemmt'T bawnm Bonk sod Hanwa ofevm dad hmawisb. Stumm
ell Lem Docmnmm, mdnduer the Lwn ngsemnm[, ummin prmixwns fir Ne ac«leradon of the manuiry Mdua
Note.
Prior to the Lutel Maturity Dace, the tum u payable wterest early each month, wAt aH principal, eared imced and
other sums due hemmuler due ad payable on the buted Maouity Data. Hourver, if Eomowxr mtisfin certoin cmdidms
listel or the Loan Agr«mmr, Bomowm may woven tion Loan m m amommig low for m additional prom equal w two
hundred forty (240) mmdhs Rhe "Ammtimtion Phase"), beginning tele firm day frBowm; she Imirl Maturity Mir sod
slim (tl¢ "Pitta Maturity D+d'T. A bilwon FayamamaY be disc mtbe Proal Mammy Om.
A. Imerwt Raw. During Oa wmrem Orly phaco of die Loop, wbch for the perporm of this Nae shall mean the
peril of t®e from the dad of the beim) disbursement huander all (dte cleidal Meaairy Dm"),
interest droll be eaavlmml at a fluctuating race equal to Hmk'.,e Reference Raw Phar two (2.000) pereemepe points. AS
used hes, TcAetcoeer Rea- meaty tlm per ermror rm d indred publicly anaewced ham time to time by Bade of
Page 1
Yo aMVmaNamVmWvmvrvPMMc m�ayma
98-212
America National Trust aN Savings Association in San Francisco, California ("B of A California") as be Rafarence
Rate. The Reference Race is act by B of A California based on various facmn, including B of A California's toad mad
dairei many, general economic Madviom ant other factors, sad! is used U a sefaence point for pricing Iowa. Baht
may price bans az, abme or below the Reference Rate. Any cherige in the Bank's Redmi Race shall busy effect at
Rs opening of business On thc my spmiRed in the pahlic mnmmemevl of a change m B of A Callindons Reftoemc
Race. The rate of indtest determined wader do paragraph 2. A. shill be referral w ae the 'Rehrerce&sed Rate'.
All interest is circulated dailyaN shed be paid bared upon a 36 yyen ant¢coal days elapsed. which means in more
interest than Ba 365 -day year were owed.
B. Payment Tenses. Paymmm of mwesr only an the Rekrmye-BUN Rene during the mental only Ph= shelf be
payable on the Am (19) day of eaeb moeh commencing or the firrt fel calendar Mout following the date of the Ron
disbussemae hereunder wand we mad Mercury Dare, upon which date the enure eurrrandiog principal balance of this
Now, together with all accrued unpaid amount memon shall be i nowturety due ant payable. flaw , if Borrower
somAe,t oadiunns In in dm lean Agtwneu, Bortowertmy covert the Wan an an wiwrtiaing tom pyable on the
mons and consort Fronded in Swtio 3 below.
A. Thelnn_ m Dagen. Daring the AnwN>aum Phase, tte wood roe will be bund on Ren mdse
Figure, as defined below, and will he Npvsed a panodic Choose Drees, ae defined blow, U the Index Figure changes.
The "index Figure" means the added yield fm the mart recently mcuoned United Stats Treasury Bond or Not with a
ended rooriry done which, is five (5) years fian tte dee of memorandum (or the nearest vooW thereafter avw7abk), m
Sanwa haw the Telerate page 5 (o surL oder page as may caprate h), whmdal upward on fie uamm mc-<igmh of our
percent (0.125%). Ifo W time the fide Figure is an burger amilabk, Be* whb sodce to Borrowen, will choose anew
vi tbar is bared comparable mfrmedon.
B. burial buereol Rare. Beginning m the first day ofine Amortization Phase, intens On wrimid pnhoipl shall accrue
at a me UPW w the Index Fighae available w of the And day of the Amouzanm Phase, plus two are mcquaner perm¢
D beloeloww, Pe* Year (tees "Spread"). 7Le immert ram u snbJatw chaggc if ds Index Pgure ntangea, U provided ion Sw:km
D b.
C. Moody Pawmns. Bomaen shall Pay ad accmed but whpaid heaea m the Bon daY of the Amordmtan Phase.
Thereafter, ore ipal and mumat wall be payable m hnumbly inaalbnema (the "Regamr Payments") equal to the monthly
asnown kat would be ucessaff w repay prospal and hmrat over an assumed too hhmked forty(240) year arreatin m
achdul< Obc "Mrorhimdo Sebcdw<"). The Regular paymems are subject w caste if the motor race changes as
provided to Section D blow.
Bovowen shall melee two hundred Racy(240) Monthly Regular Payment begormng and continuing on lee
AM ()st) day of ei month thereafter, with a And pymau of all remaining consul principal, acaeed but mpaid meant
and when same dne miler this Nom dm and payable onthe Find Mwmity Dene.
D. Chevea b lumeet Rat . ]fie owest rem will Change with J,antarn in the Index Figure as fo0ows. Bm (5) yews
FigurvmgtheRm day Nine AmmtivBm Phan aN Ate
fares o (the "Change Data"). The Wu
Figure available m each Change Dam, rounded up w Ron aarcs[ oedgMh Nos pmemnge pmvR (0.]25%). Or celled are
Spreader fidex Figure." ¢Arturo each Change Dene, thea xnum rete cell etauea w the CW rem Lakes he nee Plan Ove
gPrced (rm'Ticw Lamas Ram"). The Net Cid dmrenfba wunw imwat w the New Imema Ron until the ma Change
DM. Nawithsmnding a for such Ifu d h ogre Dams t®Nthe Loan se d iaerth Change Down lona then fm l5) Years,
dvc Current Lilac Figure Fon omb CnW Gorge Dam ¢tali bath asked Yield far the Mort recevtly aucnoud Umred Shama
Treasury Bond or Nae wiN a smN maturity dam newts ivdmm w he moat (m totem rcarestmmtb IDercafterawlabk)
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98-212
ofthe Fad Mamriry Dale ofthe Loaq u shown on the Telmate page 5 (or suchotheapage w may replace it) on such forel
ChangeDme, haded npmmd or the rhmessommghth ofa epereaa(0.125 0).
B. Classes m Rm,mr Pawrcnp. For melt Chmge Dare, Fair wtl determine the moment of mmaFdy Beguler
P;rymenm that will b necessary w repay the unpaid prampd dhot Borrower is enpected a over at the CAa tae Dam MA
the New hamert Ram (2) ova a tam and to the Amornaatimr Schelde lea the number of whole edwdle mmdh their
ban elapsed durutg the Attenuation Pleas For sampk, if the Amoatmto Se e B thirty (30) ycers ad five (5)
Yeas of the Atroarimriov Phme have ekpod, the rew Regular Payments will he hosed on a mwemyfive (25) yam
anm,tiutrn aGwdule. Tie r<soh oftbie WCWano will be the ruw m,mtmi ofihe Regowa Pnym,am. Pormwm will py
the ammnt e e dur R vents P antips s begadng m the firs monttY paYmmd date aflw ten Charge Dace until We
mnmmt of the Aegdw Payments changes again.
F. N Limh AmmW d Imam Pa Chevy There ut m limit m the amotmt she interest we m lis
Regular Payments; o this Note may imwese or deamse m wry sails Change Date, or in the aggregate o ell Change
Day teoughout she life of gree Loa.
G. Nati« of Chamu. Dank wIB deliver to Bomawer mice o[ arty clmnges a ten imacrt seem w the Reguar
Payments, bu[the eN ctivmms stud dam ofamh ehmgm slhll not M affeneE hysuehvoero or trey kek [bermf
FI. Imaert Cdcuatm. All imam is wlrnleted daily ad atoll be patl bored neon o 360daY rent ad auud days
elepd, whah to h a mum inkrest thin if n W -day year were rsed.
Prim in rho Initial Matunks,D.ne, Brmwa may prepaYall or Part ofthe Loan wthout fee or premium. Borrowda ngla to
prepay ptimipel aur ing the Amonirati® Ishere is mb)x[w the following terms and envditorh:
A. IIaavtmans Pang to AnwaM1mtion Pli Dan ft Avartmtm Phme, lkrreum may PreprY Permitted
the Nom m whole min part in minimum amrwtm ewwl w or grmhr than twenty Mount (20%) ofthe two vroom ofthis
Note a accorderse with to tenets of this Satoa. Pwpsymems with we We tho twenty Firma (200A) of the fern
amount of" Noce are oa pammd. Borrower shall give Bark irsermmbk wnnm rota of Bonowefs human to make
the pwpyment specifri g the dem ad amount of the Prepayment. The untie: must be mcencd by Bads at Wet fiat (5)
Dmkhg Dari in advmee ofthe prepymml. AllpmpYfiemaofpthmipdmth NowshillbeaPptidwthemoasmnotc
pa compel paNmrt or prmnw due haeudm. Fidr prryaytnan, Whether votomry, by mason of aarkmnm m
otherwise, must be acmmpaoid by Pythons of all seemed inlmest p the wnornt prepaid used the Prepayment he
("N,em omen Fee") ciesaibd below. Bank wit submh a cMlflwm to Borrower so" forth is do a omanor M err
Prep ynwn Fee, which mmificae shill he c,mclnaiw and Fading in the absence of maniRA error.
B. Pamatwaan Fa. ThePrcpaymeo[Pa wiltbeshe eom ofthe following:
(1) $250; pro
(2) the sum ofthe fires rdoehad separately ae ofemh Gtigmal Psymmn Dew m follows:
(a) stubbed the applicable Reavumtwtt Raw from the Cort of Funds Rete;
(b) aivmv the diRaencu of (a) M iwel a ft 2y,
(c) muRWlrthgtwtiens ofro)hYte Ongival Gran Bakvce o tce Ongael Payment Dste;
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98-212
(d) dmamuaWprmsnaalm ofW praanet Sam (c)nemg Wapp4r+b4 Rewvesmm[Baa
(e) add togelhee W amnwls ealealated m (d) 0e of Rall Ongmsl Payment Date; Wlbe peepaymm6 is a ptuml
propaymmt, multiply Nis stun by W pwpaid Pescmtw;
(f) If the ammos ftnu coed under (e) is toss tluo wR (0), to obnpoom of W Prspaymmt Fm WcobtW
under this subpart (2) is um (0); plus
(3) m amoum equal wall costs aM expwm Bink reawnhbly etpom m incur in liquidation and reinvnmmt of
W prepaid funds.
C. Doyfi ting. For Parposes WNis N^ W capbshzod terms umd herein and not aWmve defined in W Note have
the Nllowing nttsam a:
(1) "Banking Day" mRw a day, oawr Nan a Saturday or SUMay, m which Back Is opm for business for 0
baW=g fnuc0oru m poncho Coadmw, California.
(2)"Coo W Funds Eine, mewWI Figure m tfm as and dace WPrepaynmt plus omgoartm pmamwge
pomt(0.25%).
(3) "Money hdarkeC smms we m more wboksale hm tq mahets awolable to Bank, including domestic
canfiRws of deposq Eurodollar depmits, bank deposh asses or other appropriate money market imwmmts
selaaW by Bank.
(4) "Ongmal Loss UW 'mums W itnuapal balum of W Lam which w havo boss ounmeding w a
sigle Otititul Payment Date ift ere M1ad bees no prepayment.
(5) "Origmd Payment Daws" mems W danR on witch pnseTal aft Loss would have ban paid umM W
shenxtC ogs if Nine M1W bean w mapaymmt.Ifopnenn oOncyral by l.ow world that hmnpaWafro
W next Chaang Dow bllowme W dm of pmysymest Nus W Ongivel Poymaa Gere fu W[ portion will be
such sins Change Daze.
(6) "Prepaid Percmmge" mmrh No quofta dem'W by dlvWmq; the amomt of to prepayment by W prmipW
amwm of to Linn aumtmding immedioteN prim w W prepayment
('O "RChlvtshnenr Bare- mean Ne fixW mu sest = per annum, determined solely by Bask on Na dine of
prepayment, Nat Bankcwld obtaN by investing funds mW sd Y Makmmd Wt wscoinwlm a Penni oftime
scendg w W mw of W prepa5mmt evdadigq w Wapplicable Original Payment Date. 'Ire BameY 3dJU Bae
i m wfflt hteoWY.and ft uxnp tumobligation towror oftr o aabeepa 'T Back naY aajoslW
sht3lbsbaso Bate w refiat W mci ftr ng, aamo beat or tuber cosy settee I.onn The R 10ft s0 Ante
shall be bazW on mktnhtiw Gore aWt Ne TCWme or Remora mfmmadw aervima, ur WM1m mfuma[inn xnomes
W Bank demrh appropoose.
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00/26/19% 06:35 6034364396 MVID SLI4NRR Etl
98-212
By be signature bebw, Borsower seprasly waivea>oy tight order any civil ode «oAerwdee no prepay the Loon, m
whok«ir Pml,w to Prcpaynmt Finada bdabove. Brnower>ckmwledga rho prepyman of tM Lenv may
cmkin BaWsincorr+ng aAAti«nll ms,was,e.Wouu sued liabAtra. ivcludag bmsws lmiitcdta, lmtrevnnce and lost
profit. Borrower tivendome, agrees w pay Ae Prepaymem Fee Rant Principal amomt is Prepaid, whether wMHaily or by
reasen of acce4vatm, ntcbdiog, but not Bmiad m,e« lemdm open my trandbe « conveyance of my rigK ride On
mmrast be Ae real property descried AAe Mortgage giving Back sbe ngbw acwleMe Ac matumY of Ilia Now permanent
In Ae
Independent consideration, (airgnnveaindividual ddiuindividualaxlewyreigwMit by l3nsnkw, foa&Ns Braommodwcxecrfmibd tu Nh tuAnret Bank emend
s and
nm
ones au Am ivterat vertu Bortosw+ebeem Ais.wivet.
Vhkr Cars of Maim - Bap«, L.L.C., a hfa0e
IunbN below Company
By
Dr. Coigw. Yong
CLuame Props bb"B® Carpmy
Iff3omoavef fah to make my paymmat sequined gersunder wdddn fiBom (I5) days after R becanes d« and payable, a lam
charge of five Percent (5.0%) of each overdue payment may be charged f« dee purpose of defraying the expenses incident
to handling said delingnmd payments sad a as indu«metd w Borrowtt to sake thinly paymmn Acceprmra a a
scheduled payment fifteen (15) days after As due date "I not waive any appropriate lane cbarga, nor "I it mnsdtum a
waver of any even of dclauh uadm any, Loan Doamvm.
UNIMMIATMW
Upas the occwreoce aM during the conenm«e of my Bvmt of DdAdt hereunder, lie mulandbg Prircipd bleocc of
Aix Nate Wilk at Ilse option of Bank, bear intcratat an amus) rate ofdum Meant (3.0%) in arees of the applicable raw
of �rrestAm AeRect under this NaIn(Ae"Defmk Rme'y. FwmWsftmswrkyaf Nae,wbnherbyazcelmtim
or oderwiac, all sum, Am due ad payable under this Nos, including all principal and Z accrued atW unpaid fiats s
sl W I herr inrcrert meal palm fWl a Ac DCGWt Amc.
a. 4 %9195.
A. If any oPAe RllowaH "Bvmts o[ DeRuk" «c«, mY oblig>lim ofAe Mldm m make dvmca ud« Ale N«e
shall Inanimate, and at the holder's option, exactsable be he sole dixream, all same ofpsincipa and erten"[ tender this Note
sball become imndiaely dm aIW payable wiYn a notice of defadt, pwsenaamt or dammed for payment, PrWesf or antics
otvaWaytmm�w dishmwr, «Oder codas Of demands ofmY kkd of cbaraaa:
(a) Bortower Riles mpMomn anYcbligeti«toads Ah NommPaY P^t:aPat«imaeatpMtd«;«
@) Borrower Rilempmfam my often obligacm uvder Ain Nosnwpay momytom nae:«
PAP 5
tta mavaemuewvwmOrvnAr9c "Rena]
98-212
(c) Ueda ary a the imav Daeemwtrs. m Evm[ a Defouh (m delved a gat docvrwd) occurs, wap[ we
pmvwal in 8eedm 8. B. below.
H. h shall best "Berm oP Deha i mdcr des Nab r Borrower the mbjae of mY bmkuptcq m other
volwhtry or involuaary proceeding, m m wof t mart, for drc "balanced
[ of of debtmcrediwr mWimshiPS ('Inwhmey
Proceeding"). adra rare
and timoftheholder mnukeadvmsessmderthia Nob abdenownine wed paslurp
emotions, re and all sums of Principal and ekrert mvla this Now stall amoaatia becane hum®=imJY due and payable,
wiflau[mdu of dafid4 Pmammot m demure for payment pran[ or urea of mWnymrm or dishww, w mtaswtices
ur dawMs of mY k'uw m cbazama.
C. If my lawsul w arhimadw u mmmeneN which aziau m[ of a ttkwr m tle Nae, the own Dacmnents w she
lour, the prevalivg Party shall he mtiJd m remover from each alba party amh soma a flak court or azbitratw may
adjudgew be rwsomble attomeYa' roes e[he seem m arbihatioq m edNv®m mons sad erymsa oWerwiee diamond Ey
pay to of other eves n, exuding, Muter achingoat Awn
may
w: Insolvwry Proaediog, Princeliggrecsm
pay all of BaJ's wall and eWaan, iadudeg ameceya'tces, which rosy be ecurmA in mfmcPrg m protecting Bank's
riglva mimaests. From thedme(s)iocurted®tilpudetWlm Battle, all nmh sums shall bear inmrenuthe DeBul[Rae.
D. WhmNer Burrowm i9 Obligate` to pay or reimburse Burd[ fa any attorneysEnna, those fees Shall include then
Blamed cotta for services ofiabwae named.
9. MISCELLANEDllS.
A AdysmunaBalk shop rat h ramired m make sty advance Jflat mooed cause tlen amtandmg Prmxpd of tut
Nowak exceed the Madmum Lam Amami.
B. Payments. All anwmtn payable under Nle Nab ae paYenbio a kwfil cowry of do Udwd States dut'vkq m[md
baeeu bourn on a Banding Day, ude6ad below. Chew covetitwo payment only when canal
C. (breaking isw. Ilia Note ts forward by the Inas of the Same of Mune.
D. Scrum . Borrower ogres thalhe harder a lls Nae muY awWlmldidmnl tit fire Nin Nsu, or
telae my cemmy or my perry Ikbk fm Nis Nae, m name or renew ilue Nate, di widlm6 nodes m Bonowa sed
withmnai( ting qe liability oFBosrorver.
F. Nun -Waiver oFRigha, Ifflank delays in "waiting nr fv'Ltmexefcitt any ofa rights waderNis Note, stat delay
flets Nme.Nme.
mstall not mawum a waive of wry of BWrY dpJm, or of arty breach, dared[ m faihue ofeonmdm oPm nnda
No waiver by Back gravy outs rights, m afmy such brmxy defauh m fadae of condeoa slurp be eifative,
mins tlm waver u exprealY stored e a wmiog signed by Burk. M of BmkS rcnediu a cmwecdm wiU INs Note m
order applieabk law Shill be cumuktivc, mO Benk'a amcisc army our m orae offlow ren lies sMll not rmmadww m
elation otrenedin.
F. Sausasmx Avims and ]amshrs. This Nme eyes m avtl binds dm beim, iced rryrcemwmxs, maaaaa and
uaigns of Borrower and Burk; provided, hawevv, flar Bormwer may am waiyt des Now or any (man forts, or assign or
delepbe any of is tights or abligannes, allow pen prim a irm conamt of Bade a mob msmmer, Beak m h Sok
discretim may boater flue Nota and may well in "sign padxpadms in enter imemata in all in part of She Loan, an the
come and mbia[m Ue amAdma of the Loan Dontmmta, aU vdtbom vodccmar rhe <wama ofBarrowa. Alsoxilhaw
nice tom[he m�m'ml�AAurmwa, Bank maydkclmelomryactual orpmpe wpmchaseraEmyaewutiaisaa[dm[o
Page 6
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04/28/1998 88:35 6030362396 DAVID 90 17 m PAGE 08
98-212
be ivud by Bank, and ro W actual m Prospective: purchuer or agree of any pmficip4 o or older imerest in this Noce.
the Loan or any orbs bans made by Beek m Borrower (whMer evidenced by this Nam or mherwiae), say fiwicial or
other ivfotmation, dap or amounted m Book's pasasim relating ro Deserver, tho Loan or the pro", nrbding ary
improvememxm ¢. BBaekmrequeate, Bnrrowm shall siynaM de4va arow rare robe issued in mcbange hrthu Nme.
G. 7eminolonv. As used in this New, the owns "Bank," "holder" ad "holder of di Nom" are inmrahangeable. As
used in this Noe, the word "indudas)" mew 'mclude(s), without firman i m," and the word "ineNdig" meaza ,tivchsdvig.
bat ver lmAedso."
H. ]auntand Several. If mamthenomperam or mAOY art sipmgthii NomuBommvar, ihev obligatiw umbr rhos
Note shag be puns ed several.
L Authorizatiun awl Dme:eti0n. If Borrower u a corpoatiw, Borrower bis cooed this Nom to be canceled by
its officers, who were duty, avthosuxd sad dimmed to do so by a maturing of W Board of Directors whits was duly
passed and adaprad by the raryieile matter of members of 0e Board as a ateeing which Was duly called, trained, and
held.
IP3o�;axnii7�Li
A. Desiwmed Account Baronet agree that interest and pradpd paymnds also under then Nam will be dduc[d
"externally on the due dam from Borrower's accow[ mi now N/A or my replacement or aubsnnui®
thnrof,(the "DuignaW Aceunt') established at Bork of a, FSB, a federal savings bank nim affiliates
B. Due ILUa. Bank will dehit the Daigmtel AawN an the dawn paymasters of principal mdre Guanrt bttome cl
rf a due date does not fall on a Bad®g Day, Bank will debit the Designated Aceoum an the Bre Banking Day following
Such Ate dam.
C . ho Ificient Funds. Borrower will nationalist sufLcimt fulls in the Degraded Acmw w the deo Bank ewers
debits authorized hereunder. If dere an usuffictent fiords le the Desiputd Accoum an the date the Bank worn my, debit
endeared such debit will be reversed.
D. jlDbdacag. Doeontr may tvsmmam this clseo dcbst at my alma by scaling wmrm none to Bank.
If Borrower mrmimms thus mrmga�mt. thea the prtreTd asnow outsudieg ander thin Nom will at the option of Bank
bear mmmst at a me per vmms which it a oostana of me pereatage point (0.2396) hip = dwa dat rate of whrat
ul provided under Ann Note.
Par?
40 mevraemmnmuvmosvesxvoc aneim
04/PB/1998
W WITNESS WHEREOF, Bomo Im duly eucawd aM de MW Ibis Nate m Back as of Bw dam first alMO
Wrivm.
Bmmower: Bwra Malbeg Addmes
Vision Cue of Mame - Bangor, L.L.C., 1"Academy Slred
a Maine limited Babilby company Presque 4k, Maine B l
Business Telephone No.: (20769-0)7I
By:
l .Craig W. Yoaog,
Clarence Property Management Company,
a Maim Bmixd pastrcnhsp
Pap B
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seayseamcrvwwvwmvemmc
wswrc.
98-212
FJiliildill.Y-4CHN3�lal�oYiJ
The BANK OF AMERICA, S.B., holder of a certain Note dated
given by Vision Care of Maine, Inc. - Bangor, LLC,
(and (guaranteed by ), for
consideration paid by the City of Bangor, Maine, in respect to a
certain repayment due under said Note on in
the amount of $ , which repayment is now in default, hereby
assigns to the CITY OF BANGOR all claims of the Bank of America,
S.H., under said Note in regard to the repayment due
on
This assignment shall not be deemed to include an assignment
or partial assignment of any interests of the Bank of America, S.B.,
arising under the separate mortgage and security agreement or ([other
security instrument] dated (and ).
Given at this day of 1998.
STATE OF
(By)
BANK OF AMERICA, S.B.
Its
thereunto duly authorized
ss. May 1998
Then personally appeared the above-named
in his capacity as of Bank of America,
S.B., and acknowledged the foregoing instrument to be his free act
and deed in his said capacity, and the free act and deed of said
corporation.
Before me,
Notary Public/Attorney-at-Law
Printed Name: