HomeMy WebLinkAbout1978-08-14 344 AF RESOLVE344 IF
Introduced by Councilor Soucy, August 14, 1978
CITY OF BANGOR
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WHEREAS, the City of Danger proposes to issue Revenue Obligation Securities
for the general purpose of acquiring the V. P. Winter Distributing Co. Project,
so-called, and
wSmSfAS, it appears imperative that the transaction be cos®su
,ed w August
22, 1978, or as
seen thereafter a may be possible, which may beless than ten days
after adoptionof this resolve, and
WHEggas, in the opinion of the City Council these facts render the in ediate
adoption of these resolutions necessary for the. preservation of the Public peace, -'
health, Audi safety and constitute an esergenry within the meaning of Article III,
'Section 1, of the Charter of the City of Bangor and the Constitution of the State
of Mine, and
WHEREAS, an July 10, 1978, the City Council of the City of Danger adopted
Revenue Obligation Security Resolutions (30lAF) (the July 10, 1978 Resolutions)
which authorized the issuance of Four Hundred Weuty-Pive Thousand Dollars ($425,000)
principal amount of Revenue Obligation Security for the general purpose of acquiring
sal estate and providing for construction of the Winter Distributing Cospany, Inc.
Project, so-called, and,
WHEREAS, the aforesaid resolution provided, inter alia, that the Security is
to be secured by a trust agreement (the Treat Agreement) and that the Project is to
be leased to Winter Distributing Company, Inc. Pursuant to a Lease Agreement (the
Lease), the Trust Agre azzat and the Lease to be subject to such terms and conditions
as shall be approved by the City Council or a majority thereof, and
WHEREAS, certain additional actions should be taken now by the City Council in
connection with the issuance of the Security and the acquisition, construction, and
lease of the Project, o
HOW, THEREFORE, be it
RESOLVED that subparagraph (c) of the fifth resolution of the July 10, 1978,
Resolutions be amended to read as follows:
'The principal sonnet of the Security shall be repaid at the rete of
010,3$1 $28,333.33 per anus for each of the first fourteen (14) years
following the date of issue. Each repayment shall be An the emeapy
of the date of i 18
with the balance of j,090 $28,333.38 to he repaid
an the fifteenth (15th) anniversary of the date of issue,'
344 AN
IN CITY Cancxc R E S O L V E
August 14, 1978 - Supplemental Raveaue Obligation -
f�" Panned by the following yes
and '.n vote: Councilors voting Securities Reenlutions
e B t s; Finnigan, Gaon,
`M K og Sougp. spur Weymouth
M Willey Cwn a ting
zenft'an.
Q,c Pima/ r
G14Y >faw -
rp
LEASE AGREEMENT
BETWEEN DIC
CITY BANGOR, MAINE
AND
V. P. WINTER OISTRIBOTING CO.
I. PARTIES
The parties to this Lease Agreement are
1.1The City of Bangor, Maine, a municipality duly estab-
lished under the laws of the State of Maine (Bangor), and
1.2 V. P. Winter Distributing Co., a corporation organized
under the laws of the State of Rhode Island (Winter), (hereinafter
sometimes referred to as the Lessee), having its principal place of
business at East Providence, County Of Providence, State of Rhode
Island and having an additional place of business at Portland, County
of Cumberland, State of Maine.
-- II. RECITALS
2.1 The Maine Securities Approval Act, 30 M.R.S.A. 55325.
at seq. (the Act), duly enacted by the Legislature of the State of
Maine, provides among other things for the acquisition and/or con-
struction by municipalities of "industrial -commercial projects", as
that term is defined in the Act, and permits the municipality to issue
revenue obligation securities for the purpose of such acquisitions
and/or construction.
2.2 There exists within the corporate limits of the City
Of Bangor located in the so-called Target Industrial Plaza West
Subdivision, a site appropriate for the construction of a commercial -
industrial complex, which site is to be acquired by Bangor, subject to
certain encumbrances. Bangor plans to construct a commercial -industrial
complex (the "Project"), located at Lot W20A Of the subdivision, to
be occupied by winter. The Project falls within the definition of
an industrial -commercial project as defined and is eligible for
acquisition and construction by Bangor through the issuance of
revenue obligation securities.
2.3 The Act provides that municipal officers of a munici=
pality may make and .enter into leases, contracts and agreements,
including trust agreements securing revenue -obligation securities
and Bangor proposes to do so. This Lease Agreement sets forththe
terms and conditions under .which. Winter, as Leasee, will occupy,
use and pay rental for the Project.. Concurrently with the execution
Of this Lease Agreement, Bangor will enter into an Indenture of Trust
with The Merrill Trust Company, a trust company with principal offices
at Bangor, Maine, (the Trusteel pursuant to which the revenue
obligation securities (the Security)_ will be secured.
2.4 The Maine Guaranty Authority has issued a Certificate
of Approval approving the Project as a "project" as that term ie
rdefined in the Act, and the issuance of the Security has been duly
authorized by the municipal officers of the. City of Bangor through
-
action by its City Council.
III. .TERMS OF LEASE
3.1 Definitions
"Act' shall mean the Municipal Securities Approval Act, _
30 M.R.S,.A. Section 5235 at seq., as amended.
"Administration Expenses" means the reasonable and necessary
expenses incurred by Bangor with respect to this Lease, the Indenture
and the Project, as herein defined, including the compensation and.
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expenses as may be paid during the Lease term to or incurred in behalf
Of special counsel for and any independent public accountant retained
by Bangor, and the payment by Bangor of or reimbursement for fees.,
charges and expenses of the Trustee pursuant to Section 10.02 of the
Indenture.
"Authorized Lessee Representative's means the person at the
time designated to act in behalf of the Lessee by written certificate
furnished to Bangor and to the Trustee containing the specimen signa�
tune of such person and signed on behalf of the Lessee by the president
or any vice president (other than the Authorized Lessee Representative)
of the Lessee. Such certificate may designate an alternate or
alternates. The Authorized Lessee Representative and any such alter-
nate may be employees of the Lessee.
"Construction Bund" means the fund created pursuant to
Section 5.06 of the Indenture.
"Completion Date" means the date of completion of construction
and installation of the Project as anall be 'certified in accordance with
Section 4.5 hereof.
"Cost of the Project" shall be deemed to include all items,
within the definition of "Cost" in Section 5326 of the Act, Including
but not limited to:
(i) the purchase price at theland known as Lot
W20A in the Target Industrial Plaza West Subdivision, a
description of which appears on Exhibit A, together with any
improvements and fixturesthereto,thereon and therein)
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(ii) obligations of the Issuer or the Lessee incurred
for labor and materials in connection with the construction and
installation of the Project;
(iii) the cost of contract bonds and of any insurance
necessary during the course of constructionof the Project;
(iv) the cost of engineering services, plans and
specifications and preliminary surveys and estimates therefor,
and for supervising construction, as well as for the performance
of all other duties required by or consequent upon the proper
construction of the Project;
(v) legal expenses and fees, compensation and
expenses of the Trustee and all other expenses incurred in
connection with the issuance of the Security;
(vi) all sums required to reimburse Bangor or
Winter for advances made by either of them for any of the
above items, or for any other costs Incurred or for work done
by either of them which are properly chargeable to the Project;
(vii) all other costs which Bangor or Winter shall
be required to pay under the terms of, any contract or contracts
for the acquisition, construction or improvement of the. Project..
"Facility" means the buildings, improvements, fixtures and
equipment located on Lot W20A of the Target Industrial Plaza West
Subdivision used by Winter in its business of assembly and distribution
of millwork.
"Indenture" means the trust indenture dated as of the
date of this Lease Agreement, between Bangor and The Merrill Trust
Company, as Trustee, pursuant to which the Security is to be
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issued and pursuant to which the Project is to be mortgaged and the
interest of Bangor in this Leaseand the rents and other revenues
to be received by Bangor from the Project are to be pledged and
.assigned as security for the payment of principal and interest on the
Security,including any indentures supplemental to the Indenture.
"Lease Term" means the duration of the leasehold interest
created by this Lease Agreement specified in Section 4.1 hereof.
"Lessee" means the Lessee and its successors. and assigns
and also means any surviving, resulting or transferee corporation of
the Lessee as provided in Section 5.3 hereof.
"Net Proceeds", when used with respect to any insurance or
condemnation award, means the gross proceeds from the rinsurance or
condemnation award which remain after payment of all expenses. (n-
eluding attorneys' fees) incurred in the collection of such gross
proceeds.
"Permitted encumbrances" means, as of any particular time
(i) liens for taxes not then delinquent, Uii this Lease and the -
Indenture, (iii) utility, access and other easements and rights of
way, reservations, restrictions and exceptions which. the. Authorized
Lessee Representative certifies will not interfere with or impair the
Project or its use, (iv) any mechanic's, laborer's, matefaaiman's,
supplier's or vendor's lien or right in respect thereof if payment is
not yet due and payable, or if the same are being contested in good
faith in appropriate proceedings and in the opinion of counsel satin-
factory to the Trustee the lien does not materially impair the marketa-
bility of the property affected thereby, and (v) such minor defects,
irregularities, encumbrances, easements, rights of way, and clouds on
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title as normally exist with respect to property similar in character
to the Project and as do not, in the opinion of counsel satisfactory
to the Trustee, materially impair the marketability of the property
.affected thereby or its usefulness for the purpose for which. it was
acquired or is held by Bangor and by the Lessee.
"Premises" means the real estate described in Exhibit A
together with all interests and other rights therein, less any
portions thereof or interests in other rights therein taken by the
exercise of power of eminent domain as provided in Section 3.4,8.
"Project" means the entire industrial -commercial project
(as that term is defined in the Act) including the Facility, and the
Premises. -
"Project Equipment" means all items of machinery, equipment
and other tangible personal property associated with the Project, in-
cluding all items of machinery, equipment and other tangible personal
property acquired in substitution for, as a renewal or replacement of
or as a modification or improvement of such .items; the term does not
include machinery, equipment or other tangible personal property
identified as that belonging to parties other than the Lessee, nor
does it include machinery, equipment and other tangible personal
property for which other items have been substituted, whichhave been
taken by eminent domain, or which may be installed on the Premises as
the Lessee's own machinery and equipment and properly identified
as such, as contemplated by section 6..6 hereof,
"Security" means the evidence or evidences of indebted-
ness of Bangor issued pursuant to the indenture,
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"Security Fund" means the fund created pursuant to Section
5.02 of the Indenture. ,
"Trustee" means the trustee at the time serving as such
under the Indenture. -
3.2 Representations
3.2.1 Representations by Bangor
(a) Bangor is a duly established municipality of the
State of Maine, which operates under the Revised Statutes of the.
State of Maine so far as applicable and a charter (em)oodied in
Chapter 54 of the Private and Special Laws of 1931, as amended),
Pursuant to the Act, Bangor has the power to enter into the transaction
contemplated by this Lease and to carry out its obligations hereunder.
Bangor agrees that, insofar as it may lawfully do so, it will do or
cause to be done all things necessary to preserve and keep in full
force and effect its legal existence as. a. municipality.
(b) Bangor has been duly authorized pursuant to the _
Act to acquire the Project and has taken such title thereto as has,
been conveyed to it, subject only to Permitted encumbrances, Bangor
has been duly authorized and proposes to issue the Security payable
from rent due hereunder as contemplated by the Act for the purpose
of financing its acquisition of the. Project and has been duly
authorized by its municipal officers to execute and deliver this
Lease and, upon the satisfaction of indebtedness and other oblige,
tions under this Lease Agreement, to convey the Project to Winter._
3.2.2 Representations by the Leasee
(a) The. Lessee is a corporation duly organized and
existing and in good standing under the laws of the State of Rhode
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Island, is qualified to do business as a foreign corporation and is
in good standing in the State of Maine, is not in violation of any
provision of its Charter Or By -Laws, has the power to enter int0
this Lease Agreement and by appropriate corporate action has duly
authorized the execution and delivery of this Lease Agreement,
(b) It is the present intention of the Lessee to operate
the Project as an industrial -commercial project at least until the
expiration of the Lease Term or until earlier termination of this
Lease as provided herein.
(c) The Project is included within the definition of a
'project" in the Act and its estimated cost is $425,000.
3.3 Demising Clause
3.3.1 Demise of the Project
Bangor demises and leases to Winter as Lessee, and the
Lessee leases from Bangor the Project subject to Permitted Encumbrances,
in accordance with the provisions of this Lease Agreement, including
the payment of the rents and other amounts set forth in Section
3.4.2 hereof, to have and to hold for the team set forth in Section
9.1 hereof.
3.4 Provisions of the Lease
3.4.1 Quiet Enjoyment
So long as it is not in default under any of the provisions
of this Lease Agreement, including periods for curing any default, the
Lessee shall be entitled to quiet and peaceable possession and enjoy,
ment of the Project during the term of this Lease, and Bangor at
the cost of the Lessee will cooperate with. the Lessee to ensure.
the Same. Except as provided by Section 6.,2 (relating to remedies
on default) of this Lease Agreement, Bangor hereby covenants: and
N
agrees that it will take any and all necessary action to provide
the Lessee with quiet and peaceable possession and enjoyment of the
Project.
3.4.2 Rents and Other Amounts Pavable
The Lessee agrees to pay into the Security Fund in current
funds as and for rental for the use of the Project three business days
before December 1, March 1, July 1 and September 1 of each year during
the Lease Term, commencing November 27, 1978, a am which, together
with monies as may be available therefor under provisions of the In-
denture, will equal (i) the interest due on the Security on December 1,
March 1, July 1, or September 1, as the case may be, plus (ii) in the
case of a payment to be made three business days before September 1,
the principal amount of the Security which will become due (whether in
the form of a periodic payment or as the result of redemption or pre-
payment) on the imediately following September 1. Bangor shall cause
all such amounts paid into the Security Fund to be applied in payment
of the principal and interest due on the Security.
Unless there has been redemption or prepayment of the
Security pursuant to Section 6.4 hereof, the principal of the
Security shall be repaid at the rate of Twenty -Eight Thousand Three
Hundred Thirty -Three Dollars and Thirty -Three cents ($28.333.33)
per annum for each of the first fourteen (14) years following the
date of issue, commencing September 1, 1979, with the balance of
Twenty -Eight Thousand Three Hundred Thirty -Three Dollars and Thirty -
Eight Cents ($28,333.38) to be repaid on September 1, 1993.
The Lessee also agrees to pay as and for additional rental
on or before November 27, 1978 and three business days before each
December 1, March 1, July 1 and September 1 thereafter during the
6'D
term of this Lease, a sum equal to Administration Expenses which
have been incurred and which have not been paid, and also Administration
Expenses which Bangor estimates will be incurred prior to the next
rental payment date.
In the event the Lessee should fail to make any of the
payments required in this Section, the item or installment not
paid shall continue as an obligation of the Lessee until the amount
shall have been fully paid, and the Lessee agrees to pay interest
thereon at the rate of 88 per annum from the date on which the pay-
ment was due until paid.
3.4.3 Rentals to be Assigned
It is understood and agreed that all rentals payable by
the Lessee under Section 3.4.2 of this Lease Agreement are assigned to
the Trustee. The Lessee assents to such assignment and hereby agrees
that, as to the Trustee, its obligation to pay such rentals shall be
absolute and shall not be subject to any defense or any right of
set-off, counterclaim or recoupment arising out of any breach by
Bangor of any obligation to the Leasee, Whether hereunder or other-
wise, or out of any indebtedness or liability at any time owing to -
the Lessee by Bangor. Bangor hereby directs the Lessee, and the
Lessee hereby agrees, to pay to. the Trustee at the Trustee(a
principal office all rentals payable by the Lessee pursuant to
this Lease.
3.4.4 Maintenance and Modification Of project by Lessee
The Lessee agrees thatatall times during the term of this -
Lease it will maintain, preserve and keep the Project, or cause the
Project to be maintained, preserved and kept',with the appurtenances
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and every part and parcel thereof in good repair, working order
and condition, reasonable wear and tear excepted, and that it will
from time to time make or cause to be made all necessary and proper
repairs, replacements and renewals.
The Lessee shall have the privilege, in a sound and work-
manlike manner, of remodeling the Project or making substitutions,
additions, modifications and improvements to the Project from time
to time as it, in its discretion, may deem to be desirable for its
uses andpurposes, the cost of which remodeling, substitutions,
additions, modifications and improvements of the Project shall be paid
by the Lessee; and, except as provided in Section 6,6, the Project as
so modified shall be the property of Bangor and shall be included
under the terms of this Lease Agreement. The Lessee will not permit
any mechanic's or other liens to remain against the Project for
labor or materials furnished in connection with any remodeling,
substitutions, additions, modifications, improvements,repairs,
renewals or replacements made by it; provided, that if the Lessee
shall first notify the Trustee of its ,intention so to do, the Lessee
may in good faith contest any mechanic's or other liens filed or
established against the Project, and iT such event may permit the
items so contested to remain undischarged and unsatisfied during
the period of such contest and any appeal therefrom unless. Bangor
or the Trustee shall notify the Lessee. that, in theopinion of counsel
to Bangor or the Trustee, by non-payment of any such. 'items the.lien
of the Indenture as to the first mortgageposition or as to the
revenues from the Project will be materially endangered or the Project
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or any part thereof will be subject to loss or forfeiture, in which
event the Lessee shall promptly pay and cause to be satisfied and
discharged all such unpaid items. Bangor will cooperate fully with
the Lessee in any such contest.
3.4.5 Taxes, Other Governmental Charges and Utility Charges
The Lessee will pay during the Lease Term, as the same reser
pectively become due, all taxes and governmental charges of any kind
whatsoever that may at any time be lawfully assessed or levied against
or with respect to the Project (including, Without limiting the
generality of the foregoing, any taxes levied upon or with respect
to the income or profits of the Lessee from the Project prior to
or on a parity with the assignment thereof made in the Indenture), all
utility and other charges incurred in the operation, maintenance, use,
occupancy and upkeep of the Project and all assessments and charges
lawfully made by any governmental body for public improvements that may
be secured by lien on the Project; provided, that with respect to
special assessments or other governmental charges that may lawfully
be paid in installments over a period of years, the. Lessee shall be
obligated to pay only such installmentsas are required to be paid
during the Lease Term. '
The Lessee may, at its expense and in its own name, in
good faith contest any such taxes, assessments and other charges
and, in the event of any such contest, may permit the taxes, assess-
ments or other charges so contested to remain unpaid during the period
of such contest and any appeal therefrom unless Bangor of the
Trustee shall notify the Lessee that, in the opinion of counsel
to Bangor or the Trustee, by non-payment of anysuch'items the
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security afforded by the Indenture will be materially endangered or
the Project or any part thereof will be subject to loss or
forfeiture, in which event such taxes, assessments or charges shall
he paid forthwith. Except for a tax assessment or other charge levied
or made by Bangor in its capacity of a municipality, Bangor will co-
operate fully with the Lessee in any such contest. In the event
that the Lessee shall fail to pay any of the foregoing items required
by this Section to be paid by the Lessee, Bangor or the Trustee may
(but shall be under no obligation to) pay the same, and any amounts
so advanced therefor by Bangor or the Trustee shall become an
additional obligation of the Lessee to the one making the advance,
the amount of which, together with interest thereon at the rate of
88 per annum from the date thereof, the Lessee agrees to pay. The
Lessee agrees for itself, its successors, assigns and sublessees,
that it does hereby waive all right or privilege of exemption from
municipal taxation for the Project, Facilities, Project Equipment or
Premises, as may be available by reason of Bangor's status as a -
municipality, or for any other reason whatsoever; and that the City
of Bangor, in its capacity as a municipal taxing authority, may,
assess all taxes as would otherwisebe applicable. to the Project,
Facilities, Project Equipment or Premises, as if such exemption did
not exist.
In the event the above waiver of tax exemption is found
to be unenforceable or in the event Bangor is unable, for any other
reason whatsoever, to assess against the property (real and personall
or any part thereof included in the Project the full amount of any
taxes and other, governmental charges which would otherwise he assesged
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against the Project, then (subject to the Lessee's right to, contest
the validity of the tax or other governmental charge which would
otherwise be assessed) the lessee, its successors, assigns or
.sublessees, shall pay to Bangor in lieu thereof the amount of such.
taxes or governmental charges which could have been assessed against
the Project if the Project were owned directly by the Lessee and were
not subject to this Lease Agreement, the intent of the parties being
that the Lessee shall pay to Bangor either as taxes and governmental
charges or, pursuant to this paragraph, an amount equal to taxes
and governmental charges that would have been assessed, in accordance
with Bangor's standard valuation procedures,, against the Project if
it were not owned by Bangor.
3.4.6 Insurance
The Lessee agrees to insure or cause to be insured the
Project in such amounts as similar properties are usually insured by
business entities similarly engaged, against loss or damage of the
kinds usually insured against by such. business entities, by means of
policies issued by insurance companies duly qualified to do business.
in the State of Maine.
As an alternative to the above, the Lesseemay insure each.
property under a blanket insurance policy or policies whichcover
not only such property but other properties.
The Lessee agrees that it will carry public liability in-
surance with reference to the Project in minimum amounts of Three
Hundred Thousand Dollars C$300,000) for the deathor personal injury
to one person and One Million Dollars ($1,000,OOQj- for personal
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injury or death for each occurrence, and Three HundredThousand
Dollars ($300,000) for property damage for each occurrence. Bangor
and the Trustee shall be made additional insureds or beneficiaries
under such policies. The liability insurance provided by this
paragraph may be by blanket insurance policy or policies which cover
other property and activities in addition to those at the Project.
Each policy shall contain a provision to the effect that
the insurance carrier shall not cancel the same without first giving
at least ten (10) days' advance written notice thereof to Bangor
and to the Trustee. The Lessee shall deliver to the Trustee duplicate
copies or certificates of insurance pertaining to each policy of
insurance required by this Section and agrees to keep said duplicate
copies or certificates up to date.
The Net Proceeds of insurance protecting against loss shall
be applied as provided in Section 3.4.7, and the net proceeds of
insurance against liability for personal injury and damage to
property of others shall be applied toward extinguishment or satis-
faction of the liability with respect to which the proceeds are
payable.
Throughout the Lease Term, the Lessee shall maintain or
cause to be maintained Workmen's Compensation insurance coverage
required by the laws of the State of Maine.
In the event the Lessee shall fail to maintain the full
insurance coverage required by this Lease Agreement or shall fail to
keep the Project in good repair and safe operating condition, and such
failure shall constitute a default under Section S.l(b) hereof, Bangor
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or the Trustee may (but shall be under no obligation to) take out
required policies of insurance and pay the premiums on the same or
may make repairs or replacements as in their opinion are necessary
and provide for payment thereof; and all amounts so advanced by
Bangor or the Trustee shall become an additional obligation of the
Lessee to the one making the advance, the amount of Which, together
with interest thereon at the rate of 88 per annum, the Lessee agrees
to pay as Administration Expenses.
3.4.7 Damage and Destruction
Unless the Lessee shall have elected or been required to
purchase the Project pursuant to the provisions of Section 7.1 and
7.2 hereof, if, prior to the full payment of the debt evidenced by
the Security (or provision for payment therefor pursuant to the
Indenture) the Project is destroyed (in whole or in part) or is
damaged by fire or other casualty, the Lessee Cil will promptly re-
pair, rebuild or restore the property damaged or destroyed to
substantially the same condition as existed Prior to the event.
causing damage or destruction, with such changes, alterations and
modifications (including the aubstitution and addition of other
property)as may be desired by the Lessee 'Cprovided that the
security for the performance of this Lease Agreement and for the.
Security is not materially impaired) and Cii). will apply for such
purpose so much as may be necessary Of any Net Proceeds o{ inaurance
receivable on account of such. losses, All Net Proceeds of insurance
resulting from claims for losses for damage or destruction to the
Project shall he paid to the. Lessee.
In the event such Net Proceeds are not sufficient to pay in
full the costa of repair, rebuilding or restoration, the Lessee will
nonetheless complete the work therefor and will pay all costs thereof
in excess of the amount of Net Proceeds.
3.4.8 Condemnation -
Unless the Lessee shall have elected or been required to
purchase the Project pursuant to the provisions of Sections 7.1 or 7.2
hereof, in the event the title to, or the temporary use of the Project
or any part thereof or the leasehold estate of the Lessee in the
Project created by this Lease Agreement or any part thereof shall be
taken under the exercise of the power of eminent domain by any
governmental body (including a taking by Bangor, acting as a munici-
pality, for use other than as part of the Project) or any person, firm
or corporation acting under governmental authority, the Lessee shall
be obligated to continue to pay the amounts specified in Section 3.4.2
hereof. The Net Proceeds received by Bangor, by the Trustee orby
the Lessee from any award made in eminent domain proceedings shall be.
deposited with the Trustee in the Security Fund to be applied by the
Trustee in One or more of the following ways as shall be directed
in writing by the Lessee: -
(a) The restoration of theproperty comprising the
Project to substantially the same condition as it existed prior to
the exercise of the power of eminent domain, withsuchchanges,
alterations and modifications (including the -substitution and
addition of other propertyl as may be desired by the Lessee (pro-
vided that the security for the performance of this Lease Agreement
and for the Security is not materially impaired).
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(b) The acquisition, by purchase, construction or other-
wise, by Bangor Of other property suitable for the Lessee's operations
at the Project, which property shall become a part of the Project
and shall be available for use and occupancy by the Lessee without
the payment of any rent other than as herein provided to the same
extent as if such property were specifically described herein and
demised hereby; provided, however, that if the Net Proceeds are not
sufficient to make the necessary acquisition or construction of
property, then, if this option is selected by the Lessee, the excess
of the cost thereof over the Net Proceeds will be paid by the Lessee,
or appropriate property will be contributed to the Project by the
Lessee and shall become a part of the Project.
(c) Redemption or prepayment by Bangor of the Security,
together with accrued interest thereon to the date of redemption or
prepayment; provided that no part of any condemnation award may be
applied for redemption or prepayment unless the Security is
to be redeemed or prepaid as provided by the Indenture in the event
of purchase of the Project, pursuant to Section 7.2 hereof.
Unless the Lessee shall have been required to purchase the
Project pursuant to the provisions of Section 7..2 hereof, within ninety
(90) days from the date of entry of a final order in any eminent domain
proceedings granting condemnation, the Lessee shall direct Bangor and
the Trustee in writing as to which of the ways specified in this
Section the Lessee elects to have thecondemnation award applied,
Any balance of the Net Proceeds not so applied shall be applied in
reduction of the obligation represented by the Security or, if
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the Security has been fully paid or provision for payment thereof
has been made pursuant to the Indenture, the balance of the Net
Proceeds will be paid over to the Lessee.
Bangor shall cooperate fully with the Lessee in the hand-
ling and conduct of any prospective or pending condemnation proceeding
with respect to the Project or any part thereof and will, to the extent
it may lawfully do so, permit the Lessee to litigatein any such
proceeding in the name and behalf of Bangor.
IV. COMMENCEMENT AND COMPLETION OF THE PROJECT
4.1 Agreement to Construct the Project
The Lessee agrees that on behalf of Bangor:
(a) It will cause the Facility to be constructed as
herein provided on the Premises in accordance withplane and speci-
fications prepared for it and in accordance with a list of require-
ments attached hereto as Exhibit B and made a part hereof. All of
the Project shall belong to and he the property of Bangor alone and
shall be subject to this Lease. .
(b) It will cause to be. -acquired and installed in the
Project or on the Premises, the project Equipment provided for in the -
plans and specifications, as well as any additional fixtures and fixed
equipment which in the reasonable judgment of the Authorized Lessee
Representative may be necessary for completion of the Projectf and as
shall from time to time prior to the Completion Date be. specified in
writing by the Lessee, all of which. acquisitions and installations
shall be made in accordance with the Lessee'sspecifications and
directions.
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The Lessee hereby agrees that in order to effectuate the
purposes of this Lease Agreement, it will make, execute, acknowledge
and deliver any contracts, orders, receipts, writings and instructions,
and in general do all things which may be requisite or proper, for Con-
structing and completing the Project and acquiring and installing the
fixtures and fixed equipment. The Lessee's interest in any contract
relating to construction, furnishing of labor, materials or supplies
connected with the Project will be assignable to the Trustee. So
long as the Lessee is not in default under any of the provisions of
this Lease, the power of the Lessee to act as provided in this para-
graph shall not be terminated by any act of Banger or of the Trustee.
The Lessee agrees': to construct the Project with. all reason-
able dispatch; and to use its best efforts to cause construction to
be completed by September 1, 1979, or as soon thereafter as maybe
practicable, delays, incidents or strikes, riots, acts of God, or
the public, enemy beyond the reasonable control of the Lessee excepted;
but if for any 'reason such construction is not completed by said
.date there shall be no diminution in or postponement of therental
payments required in Section 3.4.2 'hereof to bepaid by the Lessee
provided, however, that the Lessee will use its best efforts. and
cause the Trustee to use its best efforts to collect any penalty pay --
menta due from the contractors dueto the failure to complete by said
date. All of said penalty payments less the cost of collecting the
same shall be deposited in the Security Pend under the Indenture,
4.2 Application of Bond Proceeds
In order to provide funds for payment of the Cost of Con,
-20-
struction, Bangor, concurrently with the execution of this Lease
agreement, has issued a Security and deposited the proceeds thereof
with the Trustee as follows:
(i) in the Security Fund a sum equal to the accrued
interest, if any, to be 'paid by the purchasers of the Security,
and
(ii) in the Construction Food the balance of the
proceeds received from said issue, after payment of costs of the
issue as provided in the Indenture.
4.3 Disbursements from the Construction Fund
Bangor has, in the Indenture, authorized and directed the
Trustee to make payments from the Construction Fund to pay the Cost of
Construction, or to reimburse the Lessee for any Cost of Construction
paid by it, upon receipt of a requisition signed by the authorized
Lessee Representative stating with respect to each payment to be made
(1) the requisition number, (2) the name and address of the person,
firm or corporation to whom payment is due, (31 the amount to be paid,
and (4) that each obligation mentioned therein has been properly
incurred, is a proper charge against the Construction Food, constitutes
a reimbursement to Lessee for payment made by it or is unpaid, and has
not been the basis of any previous withdrawal,
In approving any requisition under this Section, the Trustee
may rely as to the completeness and accuracy of all statements in said
requisition upon the approval of suchrequisition by the Lessee, and the
Lessee hereby covenants and agrees to indemnify and save. harmless
Bangor and the Trustee from any liability incurred in connection with.
any requisition approved by the Lessee as aforesaid.
-21,
4.4 Furnishing Documents to Trustee
Bangor and the Lessee agree to cause such requisitions to be
directed by Bangor and the Lessee to the Trustee as may be necessary
to effect payments out of the Construction Fund in accordance with
Section 4.3 hereof.
4.5 establishment of Completion Date
The Completion Date shall be evidenced to the Trustee by a
certificate signed by the Authorized Lessee Representative stating that
except for amounts retained by the Trustee for any Cost of Construction
not then due and payable,
(i) construction of the Project has been completed in
accordance with the plans and specifications and with. Exhibit B
hereto and all labor, services, materials and supplies used in
such construction have been paid for, or payment has been
provided for, and -
(ii) all other facilities necessary in connection with
the Project have been constructed, acquired and installed in
accordance with the plans and specifications and with Exhibit
C hereto, and all costs and expenses incurred in connection
therewith have been paid orpaymenthas been provided for.
Notwithstanding the foregoing, suchcertificate shall state that
it is given without prejudice to any rights against third
parties which exist at thedate of suchcertificate or which.
may subsequently come into being. Bangor and the Lessee agree
to cooperate in causing suchcertificate to be furnished to the
Trustee. Upon receipt of such certificate, the Trustee shall
in accordance with Section 5.08 of the Indenture transfer all
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monies then in the Construction Fund to the Security Fund,
except for any amounts retained as aforesaid by the Trustee for
any Costs of Construction.
4.6 Lessee Required to Pay in Event Construction Fond
Insufficient
In the event the monies in the Construction Fund available for
payment of the Casts of Construction should not be sufficient to pay the
Costs of Construction in full, the Lessee agrees to complete the Project
and to pay that portion of the Costs of Construction in excess of the
monies available therefore in the Construction Fund. Bangor does not
make any warranty, either express or implied, that the monies paid into
the Construction Fund and available for payment of the Costa of Con-
struction will be sufficient to pay all of the Costs of Construction.
The Lessee agrees that if after exhaustion of the monies in the Con-
struction Food, the Lessee should pay any portion of the Costs of
Construction pursuant to the provisions of this sectionr it shall not
be entitled to any reimbursement therefor from Bangor Or from the.
Trustee or from the holders of the Security, nor shall it be entitled
to any diminution of the amounts payableunder Section. 3.4,2 hereof,
4.7 Investment of Construction Fund and Security
Fund Monies
Any monies held as. a part of the Construction Fund and Security.
Fund shall, subject to the provisiona of Section 4,04 of the Indenture,
be invested or reinvested by the Trustee at the request of, and as
directed by, the Lessee, in
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(i) bonds, treasury notes and other evidences of
indebtedness of, and those unconditionally guaranteed as to the
payment of principal and interest by, the United States of
America;
(11) bonds and notes of the Federal National Mortgage
Association;
(iii) obligations of the Federal Intermediate Credit
Corporation; -
(iv) obligations of banks or cooperatives of the Farm
Credit System;
(v) bonds and notes of Federal Nome Loan Banks;
(vi) deposits or certificates of deposit in banks
or savings banks to the extent such deposits are insured by
the Federal Deposit Insurance Corporation.
The Trustee may make any and all suchinvestments through
its own departments or agents.
V. SPECIAL COVENANTS
5.1 Suitability of the Premises
Bangor makes no warranty either express or implied as to
the Project or whether it will be suitable for the purposes or needs
of the Lessee. 1-
5.2 Inspection of the Project
The Lessee agrees that Bangor and the Trustee and their
duly authorized agents shall have the right at all reasonable times,
subject to the Lessee's usual safety and security requirements, to
4-'
enter the Premises or the Facility and to examine
and inspect the
Project for the proper maintenance Of the Project.
5.3 Corporate Existence
Of the
The Lessee agrees that during the Lease Term it will
maintain its corporate existence and will not dissolve or otherwise
dispose of all or substantially all of its assets, and will not
consolidate or merge with or into another corporation except with
or into another domestic corporation (i.e. a corporation incorporated
and .existing under. the laws of one of the states of the United States
Of America or under the laws of the United States) unless, in case
Of a sale of assets, the purchasing corporation, or in the case of
merger or consolidation, the surviving corporation (if other than
the Leasee), assumes in writing all of the obligations of the Lessee
set forth in this Lease Agreement and Bangor consents in writing to
such dissolution, disposition, consolidation or merger. Bangor agrees
that consent shall not be withheld unreasonably.
5.4 Further Assurances and Corrective Instruments
Bangor and the Lessee agree that they will, from time to
time, execute, acknowledge and deliver, or cause to beexecuted,
instruments as may reasonably be required for correcting any inadequate
Or incorrect description of the Project hereby leased or intended
to be leased or for carrying out the intention of or facilitating
Performance Under this Lease Agreement.
5.5 AUthoriaed Leasee Re LesentatiVe
Whenever Under the provisions of. this Lease A
approval of the Lessee is required or Bangor is g°eemethe
required to take some
action at the request of the Lessee, such approval or such request
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shall be made in writing by the Authorized Trustee Representative.
Bangor or the Trustee shall be authorized to act an any such approval
or request and the Lessee shall have no complaint against Bangor or
the Trustee as a result of any such action taken.
5.6 Tax Exempt Interest
The Lessee covenants that it will take no action which
would render the interest on the Security subject to Federal Or
State of Maine income taxes.
VI. ASSIGNMENT, SUBLEASING, INDEMNIFICATION;
REDEMPTION AND PREPAYMENT
6.1 Assignment and Subleasing
This Lease may be assigned, and the Project may be subleased
as a whole or in part, by the Lessee only with written consent of
Bangor, which shall not be withheld unreasonably, and after notice to
the Trustee, subject to each of the following conditions:
(a) NO assignment (except pursuant to Section 5.3 hereof,
relating to consolidation or merger) shall relieve the Leasee from
primary liability for any of its obligations hereunder, and in the
event of assignment the Lessee shall continue to remain primarily
liable for payment of the amounts specified in Section 3.4.2 hereof
and for performance and observance of the other agreements on its
part herein provided to be performed and observed by it to the same
extent as though no assignment had been made.
(b) The assignee or sublessee 'shall assume the obliga-
tions of the Lessee hereunder to the extent of the interest assigned
or subleased.
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(c) The Lessee shall, within thirty days after the
delivery thereof, furnish or cause to be furnished to Bangor and to
the Trustee a true and complete copy of each such assignment,
assumption of obligation or sublease, as the case may be.
(d) No assignment or sublease shall be made which would
allow the assignee or subleases to use the Project for a purpose
which wouldresult in the interest on the Security being taxable,
nor shall an assignment or sublease be made to a party if sublease.
or assignment to that party would result in the interest on the
Security being taxable. No assignment or sublease shall he made
which would permit the Project to cease to be an "industrial -com-
mercial project' as that term is defined in the Act. -
6.2 Release and indemnification Covenants
The Lessee releases Bangor from and covenants and agrees
that Bangor shall not be liable for, and agrees to indemnify and
hold Bangor harmless against, any loss or damage to property o
any injury to or death of any person occurring on or about, or result-
ing fram operation, control and maintenance of, the Project, the _
Facility or the Premises, unless caused by the willful or negligent
act or omission of Bangor;. provided, that the indemnity provided in
this sentence shall be effective only to the extent of any loss that
may be sustained by Bangor in excess of the Net Proceeds received
from any insurance carried by the Lessee with respect to the loss
sustained. To this end,. the Lessee will provide for and insure,
in the public liability policies required in Section. 3,4,6 hereof,.
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not only its own liability in respect of the matters there mentioned
but also the liability herein assumed.
6.3 Assignment of Bangor's Interest
Bangor may mortgage the Project under the Indenture and
assign its interest in and pledge any monies receivable under this
Lease Agreement to the Trustee as security for the payment of the
principal of and interest on the Security, but each mortgage, assign-
ment or pledge shall be subject to the Lease created by this Lease
Agreement.
6.4 Redemption or Prepayment of Securities
Under the circumstances and subject to the conditions set
forth below, at the request of the Lessee and upon 90days' notice to,
and deposit by the Lessee with, the Trustee of an amount sufficient to
redeem or prepay all of the Security outstanding (or a part thereof,
not less than a principal amount of $50,000), Bangor shall take all
steps (other than the payment of money) required by the Indenture to
effect redemption or prepayment:
6.4.1 The Security may be redeemed or prepaid on any prin-
cipal repayment date, after January 1, 1979, at a price of one hundred
four percent (1048) of the outstanding principal amount, declining
by one percent (18) after each January 1, thereafter, to one hundred
percent (1004) of principal amount after January 1, 1983,
6.4.2 The Security may be redeemed or prepaid at any
time at one hundred percent C100%), of principal amount in the event
(i) the Project shall be condemnedor taken by eminent domain,
destroyed or damaged to the extent that the Lessee is unable to
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conduct its business at the Project, or (111 this Lease. Agreement
becomes void, unenforceable or impossible of performance due to
changes in Federal or State law, or (iii) the Lessee is required to
cease operations at the Project as the result of any governmental
action, or (iv) the Project, in the opinion of the Lesseee becomes
no longer useful for the purpose for which it was intended.
Upon any redemption or prepayment of the Security, accrued
interest shall be paid to the date of redemption or prepayment.
6.5 Mandatory Redemption or Prepayment
In the event that at any time the Security fails to qualify
as an industrial development bond interest on which is exempt from
Federal income taxes pursuant to Section 103 of the Federal Internal
Revenue Code, the Leasee shall immediately deposit monies with the
Trustee in an amount sufficient to redeem, at prices set forth fn
Section 6.4.1, the outstanding Security in full and Bangor shall
forthwith take all steps (other than the payment of money) to effect
redemption of the Security in accordance with the Indenture.
— 6.6 Installation of Lessee's. Own Machinery and Equipment
The Lessee may, from time to time in its sole discretion
and at its own expense, install and remove machinery, equipment and
other tangible personal property in the Project not demised under
this Lease Agreement, provided that the installation or removal
thereof does not cause permanent injury to the Project. All such
machinery, equipment and other tangible personal property (other
than fixtures which become real property under the law of the State
of Maine) shall remain the sole property of the Lessee in which
Bangor 'shall have no interest.
129.
The parties may agree, to the extent permitted by law,
that specific personalty not purchased with the proceeds of the
Issue, installed in or about the Project shall not constitute
fixtures but shall remain personalty of. the Lessee. Bangor
will cooperate with the Lessee to execute appropriate documentation
of such agreement and to record the same in appropriate places to
effect record notice.
6.7 Replacement of Obsolete or Worn Out Equipment
In the event that any of the equipment leased by Bangor
to the Lessee pursuant to this Lease Agreement from time to time
becomes obsolete or worn out or inappropriate for use by the Leasee
in carrying on its business under the Project, then the Lessee may
dispose of such property and, at the request Of the Lessee, Bangor
and the Trustee shall execute appropriate documents releasing the
equipment to be disposed of from the lien of this Lease Agreement
or of the Indenture; provided, however, that any such equipment to
be sold or otherwise disposed of shall be replaced at the sole cost
of the -Lessee by equipment of at least equal value of a nature which
is appropriate for the conduct of businessof the Project, title to
any such equipment to he taken in the name of Bangor and to become
a part of the Project and subject to the provisions of this Lease
Agreement, with Bangor to have a security interest therein.
VII. OPTIONS; PURCHASE OF PROSECT
7.1 Options to Purchase
The Lessee shall have, and ishereby granted, options to
purchase the Project and to cancel Or terminate this Lease Agreement
as follows:
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(a) If unreasonable burdens or excessive liabilities
shall have been imposed upon Bangor or the Lessee with respect to
the Project or the operation thereof, including without limitation,
federal, state or other ad valorem property, income or other taxes
not being imposed on the date of this Lease Agreement other than ad
valorem taxes presently levied upon privately owned property used
for the same general purpose as the Project, in which case the
purchase .price will be a sum sufficient to redeem or prepay in full
the Security then outstanding, at redemption prices set forth in
Section 6.4.2 and to pay all Administration Expenses incurred and
to be incurred through final payment of the Security; or
(b) At any time on or after September 1, 1979, if the
Lessee shall find continued operation of the Project to be uneconomical
in which case the purchase price will be a sum sufficient to redeem
all Securities then outstanding at pricesset forth in Section 6.4.2
and to pay all Administration Expenses, calculated as in clause
(a) above, plus $1.
7.2 Obligations to Purchase
The Lessee shall bs obligated to purchase the project prior
to. the expiration of the Lease Term and prior to the full payment of
the Security (or prior to making provisionfor payment thereof in
accordance with the Indenture) if any of the following shall have
occurred:
(a) The Project or a portion thereof shall have been
damaged or destroyed to such an extent that the Lessee deems it not
practicable to rebuild, repair and restore the Project;
-31-
(b) Condemnation of all or substantially all of the
Project or the taking by eminent domain of Such use or control of the
Project as to render it unsatisfactory to the Lessee for its intended
use; on
(c) As a result of any changes in the Constitution of
the State Of Maine or the Constitution of the united States of America
or o£.legislative or administrative action (whether state or federal)
or of final decree, judgment or order of any court or administrative
body (whether state or federal) or of final decree, judgment or order
of any court or administrative body (whether state or federal) this
Lease shall have become void or unenforceable or impossible of -per-
formance in accordance with the intent and purpose of the parties as
expressed in this Lease.
In any such case the purchase price shall be a sum sufficient,
together with any funds held by the Trustee and available for such
purpose, to redeem in full the Security thenoutstandingat 100% of
principal amount and to pay all Administration Expenses accrued and to
accrue through full payment for the Security,
7.3 Purchase at Expiration of Lease
The Lessee agrees that it will purchase and Bangor agrees
it will sell and convey, by Quitclaim Beed with Covenant, to the
Lessee the Project for $1 at the Cancellation, termination or expires
Stich of the Lease Term and, upon full payment of the Security
or upon provision for payment thereof having been made, in accordance
with the provisions of the Indenture.
-32-
7.4 Notice of Purchase
To exercise an option granted under this Article VII the
Lessee shall give written notice to Bangor and to the Trustee specify-
ing therein the date of closing of the purchase (not less than ninety
'(90) days following delivery of the notice), the reason for exercise
of the option and the purchase price which shall apply.
7.5 Conveyance Pursuant to this Article -
Upon any purchase of the Project under this Article, Bangor,
upon receipt of the purchase price and after the discharge by the
Lessee of all of its obligations under this Lease Agreement, will
deliver to the Lessee documents conveying to the Lessee title to the
property being purchased, as such property then exists, subject to
the following: (a) those liens and encumbrances existing prior to
acquisition -of the property by Bangor or created by the Lessee or
to the creation or suffering of which the Lessee consented; (b)
those liens and encumbrances resulting from the failure of the
Lessee -to perform or observe any of the agreements on its part
contained in this Lease Agreement; CO Permitted. Encumbrances other
than the Indenture and this Lease Agreement; and (dl, if the
purchase is on account of condemnation, the rights and title of
the condemning authority.
7.6 Relative Position of this Article and Indenture
The rights and options granted to the Lessee in this
Article vii shall be and remain prior and superior to the Indenture
and may be exercised whether or not the Lessee is in default here,
under; provided, that such. default will not result in non£ul£ill-
ment of any condition to the exercise of any suchright or option.
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VIII. EVENTS OF DEFAULT AND REMEDIES
8.1 Events of Default Defined
The following shall be "events of default" under this Lease
Agreement and the terms "event of default" or "default" shall mean,
whenever they are used in this Lease Agreement, any one or more of
the following events:
(a) Failure by the Lessee to pay the rent required to
be paid under Section 3.4.2 hereof at the time specified therein and
the continuation of said failure for three working days, not count-
ing Saturdays, Sundays and holidays, after receipt by the Lessee
of notice given by the Trustee that the rent referred to in such
notice has not been received.
(b) Failure by the Lesseeto observe and perform any -
covenant, condition or agreement on its part to. be observed or per-
formed, other than as referred to in subsection (a) of this Section,
for a period of thirty days after written notice, specifying such
failure and requesting that it be remedied, given to the Lessee by
Bangor or by the Trustee, unless Bangor and the Trustee 'shall agree
inwriting to an extension of such time prior to its. expiratZon) pro,
vided, however, if the failure stated in the 'notice cannot be
corrected within the applicable period, Bangor and the Trustee will
not unreasonably withhold their consent to an extension of such time
if corrective action is instituted by the Lessee within the applicable
period and diligently pursued until the default is corrected.
(c) The dissolution or liquidation of the Lessee or
the filing by the Lessee of a voluntary petition in bankruptcy, or
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failure by the Lessee promptly to lift (or furnish bond for, if
legally permissible) any execution, garnishment or attachment of
such consequence as will impair its ability to carry on its opera-
tions,at the Project, or adjudication (not set aside within ninety
days) of the Lessee as a bankrupt, or assignment by the Lessee for
the benefit of its creditors, or the entry by the Lessee into
an agreement of composition with its creditors, or the approval by a
court of competent jurisdiction of a petition applicable to the
Lessee in any proceeding for its reorganization instituted under the
provisions of the Federal Bankruptcy Act, as amended, or under any
similar act which may hereafter be enacted. The term "dissolution
or liquidation of the Lessee" as used in this subsection, shall not
be construed to include the cessation of the corporate existence of
the Lessee resulting either from a merger or consolidation of the
Lessee into or with another corporation or a dissolution or liquidation
of the Leasee following a transfer of all or substantially all of
its assets as an entirety, under the conditions permitting such
actions contained in Section 5.3 hereof.
The foregoing provisions of this Section are subject to.
the following limitations: If by reason of force majeure the Lessee
is unable in whole or in part to carry Out its agreements on Sts
part therein contained, other than the obligations on the part
of the Lessee contained in section 3.4 hereof, the Lessee shall not
be deemed in default during the continuance of such inability. The
-35-
term"force majeure" as used herein shall mean, without limitation,
the following: acts Of God; strikes, lockouts or other industrial
disturbances, acts of public enemies, orders of any kind of the
government of the United States or of the State of Maine or any Of
their departments, agencies or officials, or any civil or military
authority; insurrections; riots; earthquakes; fires; storms;. floods;
explosions; breakage or accident to machinery; partial or entire
failure of utilities; or any other cause or event not reasonably
within the control of the Lessee. The Lessee agrees, however, to -
remedy with all reasonable dispatch the cause or causes preventing
the Lessee from carrying out its agreements; provided, that the
settlement of strikes, lockouts and other industrial disturbances
shall beentirely within the discretion of the Lessee, and the
Lessee shall not be required to make settlement of strikes, lockouts
and other industrial disturbances by acceding to the demands of the
opposing partyorparties when such course is in the judgment Of the
Lessee unfavorable to the Lessee.
8.2 Remedies On Default
Whenever any event of default referred to in Section 8.1
hereof shall have happened and be continuing, with the consent p$ the
Trustee as provided in Section 4.10 of the Indenture, Bangor may take
any one or more of the following remedial steps:
(a) Bangor may declare all installments of rent payable
under Section 3.4.2 hereof for the remainder of the Lease Term t0
be immediately due and payable, whereupon the same shall become
immediately due and payable.
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(b) Bangor may re-enter and take .possession of the
Project without terminating this Lease Agreement, and sublease the
Project for the account of the Lessee, holding the Lessee liable for
the difference in the rent and other amounts payable by any sublessee
and the rents and other amounts payable by the Lessee hereunder.
(c) Bangor may have access to and inspect, examine
and make copies of the books and records and any and all accounts,
and data of the Lessee relating to the Project.
(d) Bangor may take whatever action at law or an equity
may appear necessary or desirable to collect the rent then due and
thereafter to become due, or to enforce performance and observance of
any obligation, agreement or covenant of the Lessee under this
Lease Agreement.
8.3 No Remedy Exclusive
No -remedy herein conferred upon or reserved to Bangor is
intended to be -exclusive of any ether available remedy or remedies, -
but each and every such remedy shall be cumulative and shall be in
addition to every other remedy given under this Lease and now
hereafter existing at law or in equity or by statute. No delay or
omission to exercise any right or power accruing upon any default
shall impair any such right or power or shall be construed to be a
waiver thereof, but any such right and power may be exercised from
time to time and as often as may be deemed expedient. ?n order to
entitle Bangor to exercise any remedy reserved to it in this Article,
it shall not be necessary to give any notice, other than such
notice as may be herein expressly required. Such rights and remedies
as are given Bangor hereunder shall also extend to the Trustee, and
the Trustee and the holders of the Security, subject to the provisions,
of the Indenture, shall be entitled to the benefit of all covenants
and agreements herein contained.
8.4 Agreement to Pay Attorneys' Fees and Expenses
In the event the Lessee should default under any of the
provisions of this Lease Agreement and Bangor should employ attorneys
or incur other expenses for the collection of rent or the enforcement
of performance or observance of any obligation or agreement on the
part of the Lessee herein contained, the Lessee agrees that it will
on demand therefor pay to Bangor the reasonable fee of such attorneys
and such other reasonable expenses so incurred by Bangor.
8.5 No Additional WaiverImpliedby One Waiver
In the event any agreement contained in this Lease Agreement
should be breached by either party and thereafter waived by the other
party, such waiver shall be limited to the particular breach sowaived
and shall not be deemed to waive any other breach hereunder. - -
TX. MISCELLANEOUS PROVISIONS
9.1 Lease Term
This Lease Agreement shall remain in full force and effect
from the date hereof to and including September 1, 1993, subject to
Article VIII (relating to defaultlt provided, however, that this Lease
Agreement shall be terminated prior to that date upon the purchase
of the Project by the Leasee or upon prepayment or redemption of Ube
Securities and the fulfillment of all of the obligations of the
Lessee under this Lease Agreement.
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9.2 Notices
All notices, certificates or other communications here-
under shall he sufficiently given and shall be deemed given when
delivered or mailed by registered mail, postage prepaid, addressed
as follows: if to Bangor, at City Nall, Bangor, Maine Q4401,
Attention: City Clerk; if to the Lessee, at the address of the
Facility, Target Industrial Plaza West Subdivision, Bangor, Maine
04401, Attention: Plant Manager, and a copy to Winter, Dexter Boadi
Providence, Mode Island 02944, Attention: Presidents and if to
the Trustee, to its principal office, Bangor, Maine 04401,
Attention: Corporate Trust Department. A duplicate copy of each
notice, certificate or other communication given hereunder by
either Bangor or the Lessee to the other shall also be given to the
Trustee. Bangor, the Lessee and the Trustee may, by notice given
hereunder, designate any further or different addresses to which.
subsequent notices, certificates or other communications shall be
sent.
9.3 Binding Effect
This Lease Agreement shall inure to the benefit of and
shall be binding upon Bangor, the Lessee and their respective suc=
cessors and assigns, subject, however, to the provisions of Section
5.3 (relating to corporate existence), 6.1 [relating to assignment
and subleasing), and Sections 3.4.3 and 6,3 [relating to assignment
of the interest of Bangor) hereof.
9.4 Severability
In the event any provision of this Lease Agreement shall
be held invalid or unenforceable by any court of competent jurisdiction
-39-
such holding shall not invalidate or render unenforceable any other
provision hereof.
9.5 Overpayment by Lessee
It is agreed by the parties hereto that any amounts remaining
in the Security Fund upon expiration or termination of this Lease
Agreement, after payment in full of the Security (or provision there-
fore in accordance with the Indenture) and the fees and expenses of the
Trustee in accordance with the Indenture shall be paid to the Lessee
by the Trustee as an overpayment of rents.
9.6 Amendments, Changes and Modifications
Subsequent to the issuance of the Securiti and prior to its
payment in full (or provision for the payment thereof having been
made in accordance with the provisions of the Indenture), this Lease
Agreement may not be effectively amended, changed, modified, altered
or terminated without the written consent of the Trustee.
9.7 Execution in Counterparts
This Lease Agreement may be simultaneously executed in
several counterparts, each of which shall be an original and all of
which shall constitute but one and the same instrument. -
9.8 Net Lease
This Lease Agreement shall be deemed and construed to be a
net lease" and the Lessee shall pay absolutely net during the Lease
Term the rent and all other payments required hereunder, free from
any deductions, and without abatement, deduction or set-off other
than those herein expressly provided.
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9.9 Applicable Law
This Lease Agreement shall be governed by and construed in
accordance with the laws of the State of Maine.
IN WITNESS WHEREOF, Bangor and the Lessee have caused this
Lease Agreement to be executed in their respective corporate names
and their respective corporate seals to be hereunder affixed and
attested by their duly authorized officers, allas of the date first
above written.
Witness: CITY OF BANGOR ('Bangor")
-41-
Thereunto duly authorized
V. P. WINTER DISTRIBUTING CO, ('Lessee")
By
Its
Thereunto duly authorized
but W 20-A
A certain lot or parcel of land situated in the City of Bangor,
Casty of Penobscot, State of Maine bo,nvded and described as
follows:
Being all of Int W 20.A as shown on Plan entitled "Target
Industrial Plaza West Revision of but W 17, W 18, W 19, and W 20
Bangor, Penobscot Casty, Maine" by Andrew J. Bhyka, land Surveyor,
Bangor, fain dated Jure 1978 and recorded in Penobscot Registry
of Deeds, in Plan File , more particularly described
as folhais:
Beginning at an iron rad at the southeast corner of but W 20-A as
shown on aforesaid Plan of Target Industrial Plass West, said iron
rod being In the northerly lire of the Mine Central Railroad right-
of-way and at the southwest comer of land formerly wined by Simpson;
thence by and along the said northerly lire of the Maine Central
Railroad, N 660 32' 11" W fon hundred and twenty (420.00) feet
to the southeast comer of Lot W 19-A as shown on aforesaid Plan;
thence by and along the easterly line of said but W 19-A, N 120
16' 15" E four hundred sixty and seven hundredths (460.07) feet
to the northeast corner of said lot W 19-A being in the southerly
line of Target Industrial Circle;
thence by and along the southerly line of Target Industrial
6lrcle, S 660 32' 11" E four hundred and twenty (420.00) feet to
the northeast corner of aforesaid lot W 20-A being in the westerly
line of said land formerly wined by Simpson;
thence southerly by and along the westerly line of said formerly
Simpson land, S 120 16' 15" W four lussdred and sixty and seven
hundredths (460.07) feet to the point of beginning.
Containing 189,554 square feet and being the portion of * (SOCRCE
OF TITLE TO BE SUPPLIED BY ATR)RIdE() �
Reference Meridian is Magnetic North, 1954 as shown m aforesaid plan
of Target Industrial Plaza West. Subject to, however, a City of
Bangor sewer easenxnt crossing the southerly end of the above des-
cribed parcel. * (NO ABSTRACT AVAILABLE, REFERENCE TO BE SUPPLim
BY ATTORNEY) *++*
�A✓
FURTHER RESOLVED that subparagraph a of the fifth resolution of the
July 10, 1978 resolutions shall be amended to read as follows:
"The Security may be redeemed or prepaid in its
entirety at the option of the City of Bangor.
Redemption or prepayment may be made on any re-
payment date 0$ 0y' atter the first principal re-
payment date at a price of one hundred three
percent (1038) of the outstanding principal
amount, declining by one percent (18) on each
anniversary thereafter to one hundred percent
(1008) of principal amount after the anniversary
1983."
FURTHER RESOLVED that all references to "Lot W20 and a portion of
Lot W19" shall be amended to read "Lot W20A" and all references to
"Winter Distributing Company, Inc." shall be amended to read "V. P.
Winter Distributing Co.".
FURTHER RESOLVED that the July 10, 1978 Resolutions, as amended
hereby, are hereby confirmed.
FURTHER RESOLVED that the Trust Agreement dated as of August 14,
1973, submitted to this meeting and incorporated in the minutes
thereof under the title "Indenture of Mortgage and Deed of Trust
Between the City of Bangor and The Merrill Trust Company, be and it hereby
is approved, and that the municipal officers and other officers of the
City of Bangor be and they hereby are authorized to execute the same on
behalf of the City, with such additions, deletions and alterations as the
Officer or officers executing the same may determine, such determination
to be conclusively evidenced by such execution.
FURTHER RESOLVED that the Lease Agreement dated as of August 14,
1978 (including an assignment by the City of Bangor, Maine to the
Merrill Trust Company, as Trustee, of the Lease Agreement as well a
all rentals and other amounts payable thereunder), submitted to this
meeting and incorporated in the minutes thereof under the title
Lease Agreement between the City of Bangor and V. P. Winter Distributing
Co.", be and it hereby is approved, and that municipal officers be and
they hereby are authorized to execute the same on behalf of the City as
required by the ordinances of the City of Bangor with such additions,
deletions and alterations as the officer or officers executing the same
meycda£aBmine, such determination to be conclusively evidenced by such
execution.
FURTHER RESOLVED that the City of Bangor shall assign all rentals
and other amounts payable under the Lease Agreement to the Trustee as
security for the Security.