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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 2 98-212 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 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 2 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 3 90-212 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 6 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 0 98-212 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 10 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) Page 2 no msyswseczawmvRorvesoc avwmv 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; Page 3 ate suvq{amaVMWVVY(fNP50.RC Memo 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. Page 4 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 6 420 mnwaw[ccsaaurvwnNpANc w,emr 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 uo 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: