HomeMy WebLinkAbout1996-08-26 96-364 ORDERCOUNCIL ACTION
Date: AUgUa 2fi. l99fi Item No. -'..96-364
Item/Subject: Authorizing the City Manager to Execute a Lease with Business Express, Inc.
- Hanger #464, Bangor International Airport
Responsible Department: Community & Economic Development
Commentary:
BanAir has negotiated a lease with Business Express, Inc. for the rental of Hanger #464 and tM1e land
appunenan thereto at Bangor Iruemational Airport. The building has been unoccupied. The lease will
not only provide rental income hot will reduce the outlay of money to heat and maintain the building.
Iris has been approved by the Airport Committee.
�i/
Manager's Comments:
Associated Information:
Budgd Approval:
' Fiwr¢e Direttor
Legal Approval:
A. uy Soacinny
Introduced For
o Passage
_ First Reading Page_oL
Referral ca BuBV
96-364
A dpedtoC cilo` Baldacci August 26, 1996
CITY OF BANGOR
(TITLE.) (orber. A. uthowngthe 11 City Manager11 to Execute aLease with Bus uress Express,
Inc. - Hanger X464, Bangor lntemational Airpun
By tw atv CounaB oftk city efBmwor:
ORDERED, -
TUT the City Manger is hereby authorized to execute a lease with Business Express,
Inc. for the lease of Hanger X464 and the land appurtenant thereto, located at Bangor
International Anprn A Copy of the lease is attached to this Order and is incorporated by
reference.
m cm CQI m
August 26, 1996
Ibxicn to Amaad by 96-366
Substitution Passed. O R D E R
Passed As Amaiderl by
Substitution (of Pages d2 6
#10 of. the Ruderdxwe of I.eaae) Tii1e,Authorizing the city Manager to
Execute a Lease with Business Express,
Inc., - Nange� B466t Beggor I^S95R4S�4na1
Airport
......................................
CI Q.FRK
_
.......... gy((Am
ro
.... u n c i.....
Councilman
FFf�f
96-364
INDENTURE OF LEASE
THIS INDENTURE OF LEASE, executed this day of August,
1996, by and between:
CITY OF BANGOR, a municipal corporation organized and
existing under and by virtue of the laws of the State of
Maine, and having its principal offices at 73 Harlow Street,
Bangor, Maine (hereinafter referred to as "Lessor");
AND
BUSINESS EXPRESS INC., as a debtor in possession
under Chapter 11 of the United States Bankruptcy Code in a
proceeding pending before the United States Bankruptcy
Court for the district of New Hampshire (Case #98-10130-
JEY), and a corporation existing under Me lam of the State
of New Hampshire, with its principal place of business at 14
Aviation Ave., Portsmouth, N.H. 03801 (hereinafter
sometimes referred to as "Lessee")
WITNESSETH:
WHEREAS, the City of Bangor is the owner of an airport commonly
known as "Bangor International Airport", formerly known as Dow Air Force Base,
located in the City of Bangor, County of Penobscot, State of Maine (hereinafter
sometimes referred to as the "Ahport"); and
WHEREAS, Lessee desires to lease certain premises at the Airport for
purposes of:
A. Maintenance, repair, servicing, and storage of aircraft, air -oriented equipment,
and parts used by the Lessee and its legally registered affiliates;
B. Casual sale of aircraft, air -oriented equipment and parts owned and used by
Lessee.
NOW, THEREFORE, the parties do mutually agree as follows:
ARTICLE I - PREMISES
The Leasor, for and in consideration of the rents to be paid and the
obligations to be performed by Lessee as hereinafter provided, does hereby demise
and lease unto Lessee, and the Lessee does hereby take and hire, upon and subject to
the terms and conditions hereinafter expressed the following described property, in its
present physical condition:
(:p. 9L -3L4
�s b. copy
Swmness Express, Inc.
Hangar #464 approximately 25,480 sq. fl. and the land
appurtenant thereto, located at Bangor International Airport,
Bangor, Maine, said property further described in Exhibit "A"
to this Agreement, attached hereto.
ARTICLE 11- TERM
TO HAVE AND TO HOLD the demised premises unto the Lessee for a
tern commencing October 1, 1996 and terminating on May 31, 2001.
The Lessee, at its option, may terminate this Lease without penalty and
with no further obligation: (i) by providing notice in writing to the Lessor at least six (6)
months prior to the date of termination specified in such notice; or (it) upon conversion
of its Chapter 11 bankruptcy proceeding to a Chapter 7 liquidation proceeding or upon
the army of an order by the United States Bankruptcy Court authorizing the Lessee to
sell substantially all of its assets.
ARTICLE III - COMPUTATION OF ANNUAL RENTAL
A. The rent to be paid by Lessee to Lessor during the term of this lease
shall be as follows:
October 1, 1996 to May 31, 1998 - FOUR THOUSAND TWO HUNDRED
AND FORTY-SEVEN DOLLARS ($4,247.00) per month.
June 1, 1998 to May 31, 1999 - FIFTY-THREE THOUSAND FIVE
HUNDRED AND EIGHT DOLLARS ($53,508.00) annually, to be paid
monthly in the amount of FOUR THOUSAND FOUR HUNDRED AND
FIFTY-NINE DOLLARS ($4,459.00)
June 1, 1999 to May 31, 2000 - FIFTY-SIX THOUSAND ONE
HUNDRED AND EIGHTY-THREE DOLLARS ($56,183.00) annually,
to be paid monthly in the amount of FOUR THOUSAND SIX
HUNDRED AND EIGHTY-TWO DOLLARS ($4,682.00)
June 1, 2000 to May 31, 2001 - FIFTY-EIGHT THOUSAND NINE
HUNDRED AND NINETY-TWO DOLLARS ($58,992.00) annually, to
be paid monthly in the amount of FOUR THOUSAND NINE
HUNDRED AND SIXTEEN DOLLARS ($4,916.00)
Augusl22,1996 Page
96-364
Busirress Express, Inc
B. Rent shall be paid monthly in advance on the first day of each and
every month. Lessee shall pay all rentals herein required, without prior demand
therefor, in lawful money of the United States, at Me address of the Lessor as set forth
herein or at such other reasonable places as the Lessor may designate. Rent not paid
by the tenth day of each and every month is subject to a penalty of 1.5% per month on
the outstanding balance.
ARTICLE IV - USE, OCCUPANCY AND
A. Lessee shall have the right to use, occupy and maintain the premises
herein described in a businesslike, careful, clean, and reasonably safe manner for Me
purposes of storage, repair, maintenance and servicing of aircraft, air -oriented
equipment and parts used by Lessee or its legally registered affiliates.
Lessee shall not use said premises for any other purposes without the
express prior written consent of the Lessor, which consent will not be unreasonably
withheld. No retail sale of products or services shall be conducted on the premises.
B. Lessee shall not use, occupy or maintain said premises in any manner
as to violate any municipal, state, or federal law or regulation, and, in particular,
regulations of the Federal Aviation Administration relating to the operation of Bangor
International Airport as a public airport.
C. Lessee shall make a good faith effort to inform its employees and
visitors of the rules and regulations of the Bangor International Airport and shall
cooperate in every way with the Airport Manager to insure that such rules and
regulations are obeyed.
D. Lessor, through its agents, shall have at all reasonable times the night,
upon reasonable notification to the Lessee, to go on and inspect the premises with an
authorized representative of the Lessee, and the right of access to utility systems
located on the demised premises for the purposes of maintenance, repair, correction, or
inspection. For purposes of this paragraph, "reasonable notification" shall include any
actual notification to the Lessee or its agent not less than one business day prior to the
date of inspection. "Reasonable times' shall mean any time during Lessee's regular
business hours, or during normal weekday business home N Lessee shall cease
operations or shall maintain other than normal business hours. Lessor reserves the
right to effect emergency repairs to any utility systems located on the demised premises
at any time, wihout prior notice or with such notice as is reasonable given the nature of
Me emergency concerned, and to have access for this purpose.
E. Lessee shall have the right to make alterations and improvements to
Augustn 1996 Pass
96-36ti
R ine3S Express. lnc.
the premises and the land appurtenant thereto as it may choose, subject to the prior
written approval of the Airport Manager, which shall not be unreasonably withheld, and
provided that such alterations, additions and improvements do not weaken the
structural integrity of the demised premises, nor decrease its functional quality,
appearance or value, and further provided that any such work shall be done entirely at
the Lessee's own expense and will include returning disrupted surfaces to a serviceable
and attractive condition.
Notwithstanding the foregoing, Lessee shall not have the right to construct
additions, expansions or freestanding buildings on the demised premises without the
expressed written consent of the Lessor, such concent to depend on the following:
1. Renegotiation by the parties of Articles II and III, plus reconsideration of
any other applicable section of this agreement;
2. Consideration by Lessor whether it first will choose to finance, own and
lease the improvement to Lessee rather than Lessee financing and
owning the improvement. Should Lessor determine that it will finance, own
and lease the improvement, it will proceed to negotiate with Lessee the
applicable sections of this agreement, and to construct the improvement
to meet Lessee's general requirements in an expeditious manner. Should
Lessor determine it will not finance, own and lease the improvement, it will
not unreasonably withhold its consent for Lessee to provide for its own
improvement. Such consent must be obtained by Lessee in writing.
F. Lessee shall have Me right to (a) fence, secure, grade and surface the
demised premises; (b) install such additional outdoor lighting, including Flood lighting, as
Lessee deems necessary, provided that such outdoor lighting complies with applicable
F.A.A. Regulations, (c) area signs on the leased premises, provided that such signs
comply with the City's Sign Ordinance and applicable F.A.A. Regulations, and to (d)
store material outside the building upon the leased premises provided that prior written
approval of the Airport Manager for specific storage is obtained, and Mat Lessee area
a suitable and attractive fence or screen to hide completely such material from the view
at ground level.
G. Lessee shall have the right, in common with others, to cross and utilize
the romp area adjacent to the leased premises for ingress and egress purposes only.
H. Lessee is prohibited from performing engine run -ups at all times in the
maintenance hangar area. Engine run -ups are allowed in the blast fence area on the
heavy duty ramp from 6:00 am to 10:30 pm precisely. The Lessor reserves the right to
change these hours at a later tures. Permission to conduct engine run -ups at any other
time must be obtained from the Airport Manager. Such permission to be granted
only under hardship conditions as determined solely by the Airport Manager. Engine
August 22, 19as Page4
96-364 -e
Business Express Inc.
run -ups performed under hardship conditions are to be done only in the hammerhead
area of Runway 15, and a written report explaining the conditions which required the
run-up to be performed outside of the normally allowed time period must be submitted
to the Airport Manager by 10:00 am of the day after which the run-up occurred.
Article V - Removal of Property
A. Ownership of permanent improvements to the demised premises,
which may from time to time be made by Lessee that are affixed to the property and are
an integral part of the operating systems of the structures as opposed to removable
personal property, shall automatically vest in the Lessor as a consideration of the lease
and rental schedule. .
B. Any additions, new buildings or movable personal property, except as
provided for above, that may be financed, located, erected or installed on the demised
premises by Lessee from time to time during the term of this Lease shall remain the
property of the Lessee, and, upon termination or expiration of this Lease, Lessee shall
have the right to remove the same from the demised premises within thirty (30) days of
said termination. Any such property not so removed within thirty (30) days from the
data of termination, shall become the property of the Lessor to be disposed of in such
way as Me Lessor may deem N. In the event Lessee elects to remove said non-
permanent improvements and other personal property, the demised premises shall be
returned as near as possible to their original condition existing at the commencement of
this Lease, damage by accidental fire and casualty and reasonable wear and tear
excepted.
C. In the event Lessee shall fail to remove any non -permanent
improvements or other personal property within Mirty (30) days from the data of
termination or final expiration of this Lease, Lessor shall be entitled to recover from the
Lessee Lessor's reasonable costs incurred in removing or disposing of such non-
permanent improvements or personal property. In such event, there shall be deducted
from LessoPs costs the fair value to the Lessor actually realized from sale, use or other
disposition of the particular improvements or personal property concerned.
ARTICLE VI - LIABILITY AND PROPERTY DAMAGE INSURANCE
The Lessee during the entire term of this Agreement, or any extension
thereof, shall maintain, at its sole expense, insurance of the following types with
companies authorized to do business in the State of Maine, and for the protection of the
City of Bangor, who shall be named as an additional insured, but only as respects
operations of the Lessee as its interests may appear, against all claims, losses, costs or
expenses arising out of injuries to persons whether or not employed by Lessee or
damage to property whether resulting from acts, omissions, negligence or otherwise of
August 22, 1996 page 5
96-364
Business Express. Inc.
the Lessee, its directors, officers, employees and agents and arising from Lessee's use
of the premises or any pad or portion thereof.
Comprehensive Public Liability
Bodily Injury - $1,000,000 each occurrence
Property Damage - $300,000.00 each occurrence
Worker's Compensation Insurance
A' mflfP blit L_lability Insumo
$50,000,000 per accident
Aircraft Property damage Insurance
$10,000,000 per accident
Lessor shall not be required to provide insurance coverage and shall have
no responsibility for any property owned by the Lessee or third parties which may be
located on the demised premises. Lessee shall cause to be furnished to the Lessor
evidence in the form of certificates of insurance of the existence and continuance in
force of the insurance required hereunder. Lessor shall be notified of any changes or
discontinuances of coverage.
The minimum insurance coverage required under this Article shall be
deemed to be automatically adjusted whenever the Maine State Legislature shall
increase fie Lessor's maximum liability for personal injury or property damage claims
brought under the Maine Tort Claims Act. In the event of such an increase, the
minimum insurance coverage required shall be no less than the Lessor's maximum
liability for such claims under the Maine Tort Claims Act.
ARTICLE VII - INDEMNITY
A. General Indemnification - Lessee shall defend, indemnify, and hold
Lessor, and its inhabitants, officers, employees and agents completely harmless from
and against any and all liabilities, losses, suits, claims, judgments, fines or demands
arising by reason of injury or death of any person or damage to any property, including
all reasonable costs for investigation and defense thereof (including but not limited to
attorneys' fees, court costs, and expert witness fees), of any nature whatsoever arising
out of or incident to this agreement and/or the use, occupancy, conduct, or
management of the leased premises or the acts or omissions of Lessee's officers,
agents, employees, contractors, subcontractors, licensees, or invitees, unless such
August 22, 1998 Page
96-364
Business Express, Inc.
injury, death, or damage is caused by the negligence of the Lessor its inhabitants,
officers, employees or agents. The Lessee shall give to Lessor reasonable notice of
any such claims or actions.
B. Lessee's Waiver of Workers' Compensation Immunity - The Lessee
hereby expressly agrees that it will defend, indemnify and hold the City of Bangor, its
inhabitants, officers, employees and agents completely harmless from any and all
claims made or asserted by the Lessee's agents, servants or employees arising out of
the Lessees activities under this Lease. For tha nu se the Lessee hereby Iv
waives any and all mmunity it may have under the Maine W rkers Compensation Act in
man! IQ filucib Qlaii made or asserted by the Lessee's auents servants or
employees The indemnification provided under this paragraph shall extend to and
include any and all costs Incurred by the City of Bangor to answer, investigate, defend
and settle all such claims, including but not limited to the City of Bongoes costs for
attorneys fees, expert and other witness fees, the cost of investigators, and payment in
full of any and all judgments rendered in favor of the Lessees agents, servants or
employees against the City of Bangor in regard to claims made or asserted by such
agents, servants, or employees.
ARTICLE VIII - DAMAGE BY FIRE OR OTHER CASUALTY
Lessor is not required to insure the demised premises against loss by fire
and the extended coverage usual in such insurance. In the event of destruction or
damage of buildings owned by Lessor on the demised premises, or to any part thereof,
and as often as the improvements shall be damaged by fire or other casually, Lessor
shall have the right, but not the obligation to rebuild and repair the building for
occupancy. If lessor elects not to rebuild and repair, it shall so notify Lessee within
thirty (30) days or more expeditiously if possible of its decision. In the event the
damages are of such extent as to reasonably prevent Lessee from operating within the
demised premises, then Lessee shall have the right to terminate this Lease and shall
notify Lessor within the aforementioned time period, and Lessee's obligation to pay rent
as herein above provided shall terminale upon receipt of such notice by the Lessor and
surrender of the premises by the Lessee.
ARTICLE IX - RULES, REGULATIONS AND LAWS
A. The premises herein leased are located upon the property of the
Lessor and commonly known as Bangor International Airport. Therefore, the Lessee
hereby agrees to obey and to cause all personnel employed by the Lessee to obey all
municipal ordinances, and all State and Federal rules, regulations, or laws pertaining to
the operation of said Airport and Lessee's use and occupancy of the demised premises.
In addition, Lessee shall obey and observe all reasonable orders, rules and regulations
of the Airport Manager not inconsistent with this Lease or with the aforesaid rues and
regulations which are uniform, and which apply equally to all tenants, invitees and users
Augustn 19% Page]
96-364
Business Express Inc.
of the Airport and their employees.
S. Further, it Is understood and agreed that Lessor retains a right for the
passage of aircraft ("aiMMfrr being defined as any contrivance now known or hereafter
invented, used or designed for navigation of or flight in the air) by whomsoever owned
and operated, in the airspace above the property above 342.4' MSL to an infinite height
together with the right to cause in all airspace above the property such noise,
vibrations, fumes, dust, fuel particles and all other effects that may be caused by the
operation of aircraft landing at, or taking -off tram, or operating at or on the Airport and
Lessee does hereby fully waive, remise and release any right or cause of action which it
may now have or which R may have in the future against Lessor due to such noise,
vibrations, fumes, dust, fuel particles, and all other effects that may be caused by the
operation of aircraft landing at or taking -off from or operating at or on the Airport. The
Lessee specifically agrees to make no claims in any form for damages or
reimbursements against the Lessor or against the United States Government for any
reason or cause resulting from noise generated from Airport uses.
C. Lessee will not use or permit or suffer the use of the leased property in
such a manner as to create electrical interference with radio communication between
any installation upon the Airport and aircraft, or as to make it difficult for fiyere to
distinguish between Airport lights and others, or as to impair visibility in the vicinity of
the Airport, or as otherwise to otherwise endanger the landing, taking off or
maneuvering of aircraft.
ARTICLE X - NOISE CLAIMS
The Lessee specifically agrees to make no claims in any form for
damages or reimbursements to the Lessor or to the United States Government for any
reason or cause resulting from noise generated from airport uses.
ARTICLE XI - NONDISCRIMINATION
Lessee for itself, its personal representatives, successors in interest and
assigns, and as part of the consideration hereof, does hereby covenant and agree that:
(1) no person or group of persons on the grounds of race, color, age, sex, handicap, or
national origin, or in any other manner prohibited by law, shall be excluded from
participation in, denied the benefits of, or be otherwise subjected to discrimination in the
Lessee's use or occupancy of said demised premises; (2) in the construction of all
improvements, buildings, structures, on, over or under such land and the furnishing of
services thereon, no person or group of persons on the grounds of race, color, age,
sex, handicap, or national origin or in any other manner prohibited by law, shall be
excluded from participation in, denied the benefits of, or be otherwise subjected to
unlawful discrimination in the Lessee's use or occupancy of the demised premises; and
(3) Lessee shall use the premises in compliance with all other requirements imposed by
August 22,19% Pagea
96-366
Business Egwess, Inc.
or pursuant to Title 49, Code of Federal Regulations, Department of Transportation,
Subtkle A. Office of the Secretary, Pad 21, Nondiscrimination in Federally -Assisted
Programs of the Department of Transportation - Effectuation of Title VI of the Civil
Rights Act of 1964, and as said regulations may be amended. In the event of breach of
any of the above nondiscrimination covenants, the Lessor shall have the right, after
failure of Lessee to rectify such breach within thirty (30) days after receipt of notice from
Lessor, to terminate this Lease. Provided, however, that Lessor shall not have the right
to terminate the Lease under this Article with respect to any complaint of discrimination
which is pending final resolution or adjudication before any agency or court of the State
of Maine or the United States.
ARTICLE XII - COVENANT OF QUIET ENJOYMENT
The Lessee, subject to the terms and provisions of this lease on payment
of the rent, and observing, keeping and performing all the terms and provisions of the
lease on its part to be observed, kept and performed, shall lawfully, peaceably and
quietly have, hold, occupy and enjoy the demised premises during the tens hereof
without hindrance or rejection by the Lessor or any other persons.
ARTICLE XIII - LIENS
The Lessor and the Lessee agree that each will promptly discharge (either
by payment or by filing of the necessary bond or otherwise any mechanics',
materialmen's or other liens against the demised premises, or against any buildings,
structures or improvements located thereon, which liens may arise out of any payment
due for labor, services, materials, supplies or equipment which may have been
furnished to or for the Lessor or the Lessee, respectively.
ARTICLE XIV - MAINTENANCE AND REPAIRS
(A) Lessee shall, at its sole expense and cost, throughout the tens hereof
or any extension, keep and maintain the fixtures in the demised premises including
electrical fixtures, mechanical systems located within and servicing exclusively the
demised premises, and plumbing fixtures, doors, windows, floor and floor coverings,
ceilings, walls, and interior paint surfaces, in good order and repair, and in tenantable
condition, damage by accidental fire and casualty and reasonable wear and tear, as
defined in this Article excepted. Lessee will also be responsible for cleaning of the
demised premises, snowplowing and rubbish removal.
(B) Lessor shall, at its sole expense and cost, throughout the term hereof
or any extension, keep and maintain the following in the demised premises: the
building's major structural components: roof, structural walls, foundation, operating
August 22, 1996 Page
Business Express, Inc.
systems, including heating, plumbing, and electrical systems except fixtures as
described in (A) above, exterior paint surfaces, in good order and repair, and in
tenantable condition, damage by accidental fire and casualty and reasonable wear and
tear, as defined in this Article excepted. Lessor will also be responsible for
maintenance of packing areas and landscaping,
(C) The phrase "reasonable wear and tear' as used in Paragraphs A and
B of this Article as an exception to the obligations of the parties shall not be construed
to relieve the parties of their responsibility for providing repairs of a routine and regular
nature which may from time to time be necessary within their respective areas of
responsibility, nor of the obligation to provide maintenance to the demised premises of
a nature and degree ordinarily sufficient to prevent damage, breakdown, failures,
malfunctions or disrepaire.
ARTICLE XV - UTILITIES
Lessee shall pay the cost of all utilities furnished and consumed on the
demised premises, including electricity, gas, fuel oil, water and sewer user fees. Lessee
accepts all utility futures as they now exist.
ARTICLE XVI -SURRENDER OF POSSESSION
Subject to the provisions contained in Article V, the Lessee shall, upon the
termination of this Lease, surrender the quiet and peaceable Possession of the demised
promises.
ARTICLE XVII - UNITED STATES RIGHTS
It is understood and agreed that title to the leased premises is in the City
of Bangor, provided, however, that the leased premises are a part of Bangor
International Airport and that this lease is specifically made subject to any rights the
United States of America or any agency thereof may have under any regulation, law,
deed or other existing Agreement in or to the leased premises. Should the United
States of America or any agency thereof exemise any such rights in or m said
premises, the exercise of such right or rights shall not be considered to be a breach by
me City of any covenant or obligation hereunder. If the exercise of such right or rights
by the United States of America or any agency thereof makes impractical in Lessee's
sole opinion Lessee's intended use of said premises, then Lessee shall have the right,
at its sole option, immediately to terminate this Agreement by notice to the Lessor and
without further obligation to the Lessor except for such obligations as shall have been
incurred and accrued prior to the exercise of said option.
ARTICLE XVIII - TERMINATION
Augux22, 19% Page 10
96-364
Business Express, Inc.
It is covenanted and agreed that:
(1) If the Lessee shall neglect or fail to pay the rent or other charges
payable hereunder and such default shall continue for a period of ten (10) days after
written notice thereof by Lessor; or
(2) If Lessee shall neglect or fail to perform or observe any of the other
covenants, terms, provisions, or conditions on its part to be performed, or observed,
and such neglect or failure shall continue for a period of thirty (30) days after written
notice thereof by Lessor, or if such covenants, terms, provisions or conditions cannot
be performed or observed within said thirty (30) day period, If Lessee fails to diligently
prosecute the curing of such neglect or failure; or
(3) If the estate hereby created shall be taken on execution or by other
process of law;
THEN, IN ANY OF SAID CASES OUTLINED ABOVE (notwfthstanding
any license of any former breach of covenant or waiver of the benefit hereof or consent
in a former instance), the Lessee may be considered in default hereunder, and the
Lessor lawfully may, subject to 11, U.S.C. §302, d applicable, immediately or at any
time thereafter, and without demand or notice, enter into and upon the said premises or
any part thereof in the name of the whole, and repossess the same as of the Lessors
former estate, and expel the Lessee and those claiming through or under ft and remove
its or their effects (forcibly'd necessary) without being deemed guilty of any manner of
trespass, and without prejudice to any remedies which might otherwise be used for
arrears of rent or preceding breach of covenant. Upon such entry, and, subject to 11,
U.S.C. §302, if applicable, this Lease shall terminate, and the Lessee shall be liable to
pay as rent, amounts equal to the several installments of rents and other charges
reserved as would have become due under this Lease if this Lease had not been
terminated or if the Lessor had not entered or reentered as aforesaid. Notwithstanding
the foregoing, Lessee's liability shall not exceed the difference, if any, between the
rental which would have been due had there been no such termination, and the amount
being received by Lessor as rent from any new tenant or occupant of said premises. In
order to mitigate Lessee's damage hereunder, Lessor agrees to make every reasonable
effort to secure subsequent tenants, at a rental equal to the then prevailing local rate for
the demised premises.
ARTICLE XIX - ATTORNEY'S FEE
The Lessee shall pay to the Lessor a reasonable attorney's fee in the
event the Lessor employs an attorney to coiled any rents due hereunder and secures a
judgment in connection with collection of said rent, or legal process is levied upon the
interest of the Lessee in this Lease or in said premises, or in the event Lessee violates
any of the terms, conditions or covenants on the part of the Lessee herein contained,
August 22, 1996 Page 11
96-364
Business Express, Irm.
provided also that Lessee shall have failed to promptly canect the violation of any tens,
condition or covenant after receipt of notice that it is in violation thereof.
In the event Lessor employs its City Solicitor or an assistant solicitor to
collect rents or otherwise protect Lessors interests under this Lease, "reasonable
attorneys fees" under this Article shall mean the reasonable cost of services provided
by Lessors Solicitor or assistant solicitor, at the rate charged for similar services by
private allomeys in the Bangor area.
ARTICLE XX - ASSIGNMENT, SALE AND SUBLETTING
The Lessee shall not at any time assign, sell, convey or transfer this
Lease or any interest therein, or sublease or sublet or rem the premises, or any part
thereof, without the imorwntlen consent of the Lessor. In the event of an approved
sublease, all provisions of this Lease shall extend to, bind and inure to the benefit of not
only the Lessor and Lessee but also their successors and assigns.
Lessee shall have the right to assign this Lease to any corporation with
which it may have become merged, consolidated, or otherwise associated, or to any
corporation or holding company having the controlling interest in the Lessee, or to any
corporation which may be a subsidiary of the Lessee or to any other entity which may
purchase substantially all of Lessee's assets. In no event, however, shall the Lessee
named herein be relieved from any obligations under this Lease by virtue of any such
assignment or subletting.
ARTICLE XXI - AUTHORITY TO ENTER INTO AGREEMENT
The Lessor hereby represents and warrants that it has taken all
procedural and legal steps as required by federal, state and local laws and regulations
for the purpose of authorizing the execution of this agreement and that execution of this
agreement by the City of Bangoes City Manager renders this agreement a valid and
binding document on the part of the Lessor and that the same is fully enforceable in all
of its terms and conditions by the Lessee.
Lessee hereby represents and warrants that it has taken all procedural
and legal steps as required under all state, local and federal laws and regulations, and
all necessary corporate action to authorize the execution of this agreement by its
undersigned corporate officers and that upon such execution this agreement is a valid
and binding document on the part of the Lessee and is fully enforceable in all of its
terms and conditions by the City of Bangor. Notwithstanding the above, the Lessee's
execution and delivery of this lease is subject to approval by the United States
Bankruptcy Court for the District of New Hampshire.
August 22, 19% Page 12
96-364
Boslness Exprs Inc.
ARTICLE %XII - WAIVER
Failure on the part of the Lessor to complain of any action or nonaction on
the part of the Lessee no matter how long the same may continue, shall never be
deemed to be a waiver by the Lessor of any of Lessor's rights hereunder. Further, R is
covenanted and agreed that no waiver at any time of any of the provisions hereof by
Lessor, shall be construed as a waiver of any other provisions hereunder, and that a
waiver at any time of any of the provisions hereof shall not be construed at any
subsequent time as a waiver of the same provisions. The approval of Lessor of any
action by the Lessee requiring the Lessors consent or approval shall not be deemed to
waive or render unnecessary the Lessors consent or approval of any subsequent
similar act by the Lessee.
ARTICLE XXIII - NOTICES
Notices ro the Lessor provided for in this Lease shall be sufficient if sent
by registered or certified mail, return receipt requested, postage prepaid to:
City Manager
City of Bangor
City Hall
73 Harlow Street
Bangor, Maine 04401
with a copy to Airport Manager, Bangor International Airport, 289 Godfrey Boulevard,
Bangor, Maine 04401
Notices to Lessee, are to be sent by registered or cedified mail, return
receipt requested, postage prepaid, addressed to:
Business Express, Inc.
14 Aviation Ave.
Portsmouth, N.H. 03601
Attn: Gary Ellmer, President
or to such other respective addresses as the parties may designate from time to time to
each other in writing.
ARTICLE XXIV - INVALIDITY OF PARTICULAR PROVISIONS
R any term or provisions of this Lease or the application thereof to any
person or circumstances is hereafter determined to be to any extent invalid or
unenforceable, the remainder of this Lease or the application of such terms and
August 22, 1996 Page 13
96-364
Business Express, Inc.
provisions to persons or circumstances other than those to which it is held invalid or
unenforceable shall not be affected thereby and such term and provision of this Lease
shall be valid and be enforceable to the fullest extent permitted by law.
ARTICLE XXV -CONSTRUCTION
The headings appearing in the Lease are intended for convenience and
reference only, and are not to be considered in construing this Lease.
ARTICLE XXVI - NO PARTNERSHIP OR JOINT VENTURE CREATED
Nothing contained herein shall be deemed or construed as creating the
relationship of principal and agent or of partnership or of joint venture between the
parties, it being understood and agreed that neither the method of computation of
rent nor any other provision contained herein nor any acts of the parties shall be
deemed to create any relationship between the parties other than the relationship of
landlord and tenant.
ARTICLE XXVII - GOVERNING LAW
This Lease shall be governed exclusively by the provisions hereof and by
the laws of the State of Maine, as the same may from time to time exist.
ARTICLE XXVIII - AMENDMENT TO LEASE
This lease contains all the terms and conditions between the parties hereto and no
alteration, amendment or addition hereto shall be valid unless in writing and signed by
bath partes hereto.
August 22, 19% Page 14
96-364:,x„.
savaess Express, Inc
IN WITNESS WHEREOF, the parties hereto have set their hands
and seals the day and year written above.
CITY OF BANGOR
Date:
Wines:
BUSINESS EXPRESS, INC.
Date:
Witness:
By:
Edward A. Barrett
Its City Manager
(tile)
August ¢ , IM Pegs 15
E hib't A
EXISTING DOMESTIC AND INTERNATIONAL
N
G
.rG
TERMINAL BUILDING
1we
m
96-364
Business Egxess, Ina
Hangar #464 approximately 25,480 sq. ft. and the land
appurtenant thereto, located at Bangor International Airport,
Bangor, Maine, said property further described in Exhibit "A"
to this Agreement, attached hereto.
ARTICLE II - TERM
TO HAVE AND TO HOLD the demised premises unto the Lessee for a
term commencing August 19, 1996 and terminating on July 31, 2001.
The Lessee, at its option, may terminate this Lease without penalty and
with no further obligation: (i) by providing notice in writing to the Lessor at least six (6)
months prior to the date of termination specified in such notice; or (ii) upon conversion
of its Chapter 11 banlouptcy proceeding to a Chapter 7 liquidation proceeding or upon
the entry of an order by the United States Bankruptcy Court authorizing the Lessee to
sell substantially all of its assets.
ARTICLE III -COMPUTATION OF ANNUAL RENTAL
A. The rent to be paid by Lessee to Lessor during the term of this lease
shall bei as follows:
August 19, 1996 to August 31, 1996 - ONE THOUSAND SEVEN
HUNDRED AND EIGHTY-ONE DOLLARS ($1,781.00).
September 1, 1996 to July 31, 1998 - FOUR THOUSAND TWO
HUNDRED AND FORTY-SEVEN DOLLARS ($4,247.00) per month.
June 1, 1998 to May 31, 1999 - FIFTY-THREE THOUSAND FIVE
HUNDRED AND EIGHT DOLLARS ($53,508.00) annually, to be paid
monthly in the amount of FOUR THOUSAND FOUR HUNDRED AND
FIFTY-NINE DOLLARS ($4,459.00)
June 1, 1999 to May 31, 2000 - FIFTY-SIX THOUSAND ONE
HUNDRED AND EIGHTY-THREE DOLLARS ($56,183.00) annually,
to be paid monthly in the amount of FOUR THOUSAND SIX
HUNDRED AND EIGHTY-TWO DOLLARS ($4,682.00)
June 1, 2000 to May 31, 2001 - FIFTY-EIGHT THOUSAND NINE
HUNDRED AND NINETY-TWO DOLLARS ($58,992.00) annually, to
be paid monthly in the amount of FOUR THOUSAND NINE
HUNDRED AND SIXTEEN DOLLARS ($4,916.00)
August22, 19% Paget
96-366
Business Express, Inc.
systems, including heating, plumbing, and electrical systems except fixtures as
described in (A) above, exterior paint surfaces, in good order and repair, and in
tenantable condition, damage by accidental fire and casualty and reasonable wear and
tear, as defined in this Article excepted. Lessor will also be responsible for
maintenance of parking areas and landscaping.
(C) The phrase "reasonable wear and tear" as used in Paragraphs A and
B of this Article as an exception to the obligations of the parties shall not be construed
to relieve the parties of their responsibility for providing repairs of a routine and regular
nature which may from time to time be necessary within their respective areas of
responsibility, nor of the obligation to provide maintenance to the demised premises of
a nature and degree ordinarily sufficient to prevent damage, breakdown, failures,
malfunctions or disrepairs.
ARTICLE XV - UTILITIES
Lessor shall pay the cost of all utilities furnished and consumed on the
demised premises, including electricity, gas, fuel oil, water and sewer user fees. Lessee
accepts all utility fixtures as they now exist.
ARTICLE XVI - SURRENDER OF POSSESSION
Subject to the provisions contained in Article V, the Lessee shall, upon the
termination of this Lease, surrender the quiet and peaceable possession of the demised
Premises,
ARTICLE XVII - UNITED STATES RIGHTS
It is understood and agreed that Iltle to the leased premises is in the City
of Bangor, provided, however, that the leased premises are a part of Bangor
International Airport and that this lease is specifically made subject to any rights the
United States of America or any agency thereof may have under any regulation, law,
deed or other existing Agreement in orto the leased premises. Should the United
States of America or any agency thereof exercise any such rights in or to said
premises, the exercise of such right or rights shall not be considered to be a breach by
the City of any covenant or obligation hereunder. If the exercise of such right or rights
by the United States of America or any agency thereof makes impractical in Lessee's
sole opinion Lessee's intended use of said premises, then lessee shall have the right,
at its sole option, immediately to terminate this Agreement by notice to the Lessor and
without further obligation to the Lessor except for such obligations as shall have been
incurred and accrued prior to the exemise of said option.
ARTICLE XVIII -TERMINATION
August 22. 19N Page 10