HomeMy WebLinkAbout1976-04-05 175 AD RESOLVE175 Ab
. Introduced by Councilor Soucy, April 5, 1976
CITY OF BANGOR
Authoriser ion to Execute Bst.... rent A [semen[ ._
WHEREAS, it is imperative that the City of Bangor acquire jointly
with Exxon Corporation all fixed base operation assets (except for aircraft
utilized in the fixed brae operation flight school), and interests of Trans -
Rest AS[. Inc., and its Trustee, George W. Kurt, Esquire,free find clear of
all liens (except certain interests of Exxon Corpo[atiop): am
W ERRS, it is imperative that the City settle and compromise all past,
present, and potential claims and causes of fiction between
and among the
x
Trustee. Depositors Treat Company. Exon Corporation, and the City of
Bangor; and
WHEREAS, it is imperative that as a parr of such acquisition, settle-
ment and compromise, a Settlement Agreement by and between the Trustee of
Tfaos-East Air, Im., Depositors Trust Compavy, City of Mulct, and Exxon
Corporation in substantially the form attached to this Resolve am made a
part hereof, be executed on behalf of the City immediately; and
wDERBAS. in the opinion of the Council these facts render the im,ediate
passage of this Resolveary for the pre c preservation of the public peace,
health, and safety, end e constitutes an emergency within the meaning and
provision of Article III, Section 1 of the Matter of the City of Danger
and the provisions of the Constitution of the State of Maim;
ME THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE CM OF
BANCQR TNAL
The City Meador be am he hereby is authorized to execute on behalf
of the City, the Settlement Agcement by and between
the Trustee of Tram -
East Air, Inc.. Capon itors Trust Company. City of Bangor, and Exxon Corpo[at ion,
In substantially the form attached hereto and meds a pact hereof.
AND BE a FURTHER RESOLVED THAT:
This Resolve, in light of the emergency set forth herein, shall
become effective upon passage.
8 IN CITY COUNCIL - 175 AN �$
April 5, 1976 -
Councilor gallon excused fromacting
n this.%solve. Passed Ey the
.'following yes and no vote: councilors P. E S 0 L Y.E
voting yes: Signal, Arrester. Finnigan
'Renderson) Money, Soucy and SOulas.
GotipOilOr,vOtln9 n Gaee. Councilor
eallru ex&USSI.
Authorization t cute SesB Met Agreement.
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF MAINE
NORTHERN DIVISION
In the Natter of In Proceedings of the
Reorganization of a Corporation
TRANS EAST AIR, INC., Under Chapter X
Debtor No. BK 72-251ND
Depositors Treat Company, _
Plaintiff ...
Kura, Trustee; City Of Bangor;
and Exxon Corporation,
Defendants
Kuri, Trustee,
Plaintiff
Va.
Depositors Trust Company and
City of Bangor,
Defendants
Kuri, Trustee,
Plaintiff
Exxon Corporation,
Defendant
SETTLEMENT'' AGREEMENT, STIPULATION OF
DISCONTINUANCE OF ADVERARY PROCEEDINGS
AND TWO PLENARY ACTIONS, AND AGREEMENT
OF PURCHASE AND SALE OF DEBTOR'S BUSINESS
AND SUBSTANTIALLY ALL ITS ASSETS TO CITY.
OF BANGOR AND EXXON FOR CASH PRICE OF
$1,300,000
SETTLEMENT AGREEMENT, STIPULATION OF
DISCONTINUANCE OF ADVERARY PROCEEDINGS
AND TWO PLENARY ACTIONS, AND AGREEMENT
OF PURCHASE AND SALE OF DEBTOR'S BUSINESS
AND SUBSTANTIALLY ALL ITS ASSETS TO CITY
OF BANGOR AND EXXON FOR CASH PRICE OF
$1,300,000
Depositors Trust Company, a Maine banking corporation
CITE"), which claims to be a secured creditor of the Debtor, and
George W. Karr, Jr., Trustee of the Debtor ("Trustee"), by their
respective Attorneys, do hereby enter into this Settlement Agreement,
Stipulation of Discontinuance, and Agreement of purchase and Sale
(hereinafter referred to as the "Settlement Agreement") with City
of Bangor, Maine, a Maine municipalcorporation(acting by Order
No. of its City Council, dated April. 1976, authorizing
its Attorneys to execute this Settlement Agreement on its behalf),.
(hereinafter called "City") and. Exxon Corporation, a New .Jersey
corporation, by their respective Attorneys, and the aforesaid
Depositors Trust Company, Trustee, City and Exxon.
DO,HEREBY AGREE AND STIPULATE AS FOLLOWS:
I
CONDITIONS TO THIS SETTLEMENT AGREEMENT
BECOMING FINAL AND BINDING ON ALL FOUR
PARTIES HERETO
1.1 As a condition to this Agreement becoming final and -
binding on all four parties hereto, the United States District court,
sitting as a Chapter X Reorganization Court over these proceedings,.
will have entered orders after a hearing as provided in Bankruptcy _
RU10 10-209(b), as follows:
(a) On the "Application of the Trustee to Compromise
Dispute$ with City of Bangor, Exxon and. Depositors
Trust Company", (hereinafter for brevity
referred to as the "Application")
-2-
TAM
an Order approving the. Trustee's execution of this.
Agreement and authorizing the Trustee to take all such
actions as may be necessary or desirable to effectuate
the purposes hereof.
(b) On the "Complaint of the Trustee to sell the
Assets of the Debtor Free and Clear of Liens" (hereinafter
for brevity referred to as "The Complaint to Sell Free
and Clear") an Order granting the relief requested shall
have been entered.
(c) On the "Application of Depositors Trust 'Company
Seeking Conditionally An Order Converting the Debtor's
Chapter % Proceedings to Straight Bankruptcy Under
Rule 10-30B(2) In the Event a Settlement Agreement is
Approved" (hereinafter for brevity referred to as the _.
"Straight Bankruptcy Application"), an Order authorizing
the conversion of the Debtor's Chapter % proceedings to
Straight bankruptcy, conditional upon the order referred
to in clause (a) of this Section 1.1 becoming final and
not subject to further appeal, and making provision for
the automatic entry of an Order adjudicating the Debtor
bankrupt and providing for further proceedings in accordance
with Bankruptcy Rule 122, effective upon the order referred
to in clause (a) of this Section 1.1 becoming final and
not subject to further appeal.
Each party hereto agrees that it will not oppose the
Applications and the Complaint referred to in clauses (a), (b)and
(c) of this Section 1.1.
-3-
1.2 The parties hereto will each take all actions and
file allpleadingsas appropriate to .the and that the Debtor's
Chapter -.X reorganization court enter the order referred to
n Section 1.1. This settlement agreement will become final and
.binding upon all four parties only when:
(a) All orders entered bytheChapter X Court a
contemplated by Section 1.1 are final and not subject
to appeal or further appeal, (or that, if any appeals
have been taken, that such appeals have been dismissed o
were ultimately filed or were not accompanied by requisite
supercedeas bonds to support Motion for Stay under Bank-
ruptcy Rule
ank-
ruptcyRule 805 or applicable provisions of the Federal
Rules of Appellate Procedure, or that all Motions for Stay
have been denied by both the Chapter X Court and all
Appellate Courts with whom such motions may be filed);
Provided, however; that:
(b) in the event that any appeal is outstanding from
any one or more of the Orders contemplated by Section 1.1 and
no stay is in effect by reason of the failure of Appellants to
file the required supersedeas bond, the Trustee may elect to -
close the transactions provided for herein by notice to the
other parties; or the Trustee may elect to postpone the closing
until appeals have been dismissed or otherwise disposed of
If the Trustee does elect to close notwithstanding the pendency of
an appeal, the closing shall be final and binding upon all parties
1.3 Upon the satisfaction of the conditions set forth
in 1.1 and 1.2, this Settlement Agreement shall be .binding and
final upon all parties hereto; and each of the parties shall be
obligated to deliver to each of the other parties hereto the monies
and instruments referred to in Article VI hereof at the Closing on
the closing Date referred. to in said Article VI. -
1.4 Upon consummation of the sale of assets by the
xrusteelto the City and Exxon jointly in relianceuponthe order
t
of the. Chapter X court approving the settlement agreement, City and
Exxon will jointly receive all the Debtor's right, title and interest
in and to all assets purported to be conveyed free and clear sof all
liens and encumbrances (excepting only liens, if any, claimed by
the City or Exxon which City and Exxon consent to allowed remain
upon the assets conveyed).
'1.5 The City and Exxon shall have no interest in the
further bankruptcy proceedings of the Debtor under Rule 122. and
_other applicable Bankruptcy Rules following the conversion of the
Debtor's Chapter proceedings to straight bankruptcy by virtue of
their respective agreements to withdraw all previously -filed Proofs
of Claim and to waive all claims against the Debtor's Estate.
1.6 it is understood by the parties that. the further
proceedings in straight bankruptcy will be had in compliance with
the Bankruptcy Act and the applicable Bankruptcy Rules looking to
a prompt liquidation and distribution of the assets of the Debtor's
estateas follows:
(i) To DW as secured creditor, but only to the
extent permitted by. the Court's Memorandum Opinion
dated March 24, 1976; and to First National City Bank,
to the extent its claim is found to be secured;
(ii) To administration claimants, including the.
present and former Trustee;_ counsel. for the Trustee;
Parties claiming entitlement forservices contributing
to the Estate under Rule 10-215;, and (to the extent
of $10,000) parties who advanced a sum of case equal
to $10,000 to secure the payment of counsel fees by
the Debtor's Estate;
-5-
(iii) To priority governmental claimants, to
the extent that their claims are valid priority claims
under 564 of the Bankruptcy Act and are not penalties
barred under 957ji
(iv) To general unsecured claimants.
lA In the event that, after distribution of the assets
of the Debtor's estate in accordance with the Bankruptcy Act and
applicable bankruptcy rules, there should remain surplus assets,
such surplus assets will be distributed in accordance with future
orders of the Bankruptcy Court.
S1:
II.
ASSETS TO BE SOLD AND CONSIDERATION
-THEREFORE
Subject to the conditions of this Settlement Agreemet
becoming final and binding, Trustee agrees to sell, and City and
Exxon agree to purchase andpay for, certain assets of the Debtor's
Estate free and blear of all encumbrances, .and in order to permit such
sale.-
DTC as Secured Creditor claiming security interests in certain assets
of the
Debtors estate, agrees to consent to said sale .and to the transfer of
said
security interests to the proceeds of such sale; and Trustee consents
to the
attachment of such security interest to the proceeds of said sale;
allsubject to the following terms and conditions:
2.1 City and Exxon agree to purchase from the Debtor's
estate and the Trustee agrees to sell and transfer to the City and
Exxon jointly all of the Debtor's right,. title and interest in the
following, freeand clear of all encumbrances:
'-
(a) The Base Lease ("EBO Agreement") between the
City and Trans -East Air, Inc., dated June. 20., 1968,
as amended, supplemented or modified.
(b) The Equipment Lease between Exxon and Trans -
East Airy Inc. dated July 16, 1969.
(c) The Mobile Equipment Lease between. Exxon
and Trans -East Air, Inc. dated July 16,'1969.
(d) The Dealer Agency Agreement between Exxon and
Trans -East Air, Inc. dated July 16, 1969-
(a) The Product Sales Agreement between Exxon and
Trans -East Air, Inc. dated July 16, 1969.
(f) Any right, license a= easement which the. Debtor
may have to use the underground fueling distribution system
apart from the Equipment Lease referred to in Subparagraph
(b) above. -
-7-
(g) All equipment owned by the Debtor or leased by the
Debtor, including the Debtor's equity if any in leased
equipment order financing leases providing the lessee
with options to purchase, excepting only five (5)
trainer aircraft which are being retained by Trustee
pending further sales thereof to .parties (including the
City) who desire to purchase the same,
(h) All other contract rights of the Debtor, all
customer relationships, all customer lists, all 'accounts
receivable which remain outstanding and uncollected
(whether arising before, on, or after August 11, 1972),. and
all other intangible assets.
(i) All other property of the Debtor, tangible or
intangible, real or personal, excepting only cash i
bank accounts, cash on deposit in the Maine National
Bank Escrow Account, and the five aircra£t.referred to
above.
2.2 City agrees to purchase from the Debtor's estate, and
the Trustee and DTC agree to sell and transfer to the City,
allcauses of action by the Trustee and/or Debtor and/or DTC (in
thecase of DTC, as provided in Section 5.5 hereof) against the
City (the term "all causes of action" is defined as all claims
which the Trustee and/or the Debtor and/or DTC have against the City
of any kind or nature, without limitation, whether arising before, on,
or subsequent to August 11, 1972 or claims arising out of the Bankruptcy
Act). upon completion of said purchase at the Closing, all such
causes of action shall be extinguished and general releases given to City.
ZS
2.3 Exxon agrees to purchase from the Debtor's estate
and OTC, and the Trustee and DW agree to sell and transfer to
Exxon all causes of action by the Trustee and/or Debtor and/or
DTC.(iii the case of DTC, as provided in Section 5.5 hereof), against
Exxon (the term "all causes of action" is defined as any and all
claims 'which the Trustee and/or the Debtor and/or DTC have
against Exxon of any kind or nature, without limitation, whether
arising before,00n or subsequent to August 11, 1972), and claims
arising out of .the Bankruptcy Act. Upon completion of said.
purchases at the closing, all such causes of action shall be extinguished
and general releases given to Exxon.
2.9 City and Exxon. agree to pay for the assets described
in Sections 2.1 through 2.3 above the sum of $1,300,000, payment to
he made as follows:
(a) City shall pay the am of $650,000, of which _
$525,000 shall be paid by bank cashier's or certified
.check delivered to 'the Trustee at the Closing on the
Closing Date (as those terms are hereinafter in Article
VI defined). and $125,000 shall be paid by the City
releasing its claims to the sum of money ordered by
the Court's Order of July i, 1975 to be deposited with
Maine National Bank in escrow (the Trustee .shall be
entitled to retain for the benefit of the estate any
interest on deposit in said account which makes the
account balance in excess. of $125,000).
(b) City shall release all of its claims and causes
of action against the Debtor's Estate and the Trustee
(whether arising out of the events pie -August 11,-1972
or arising on or subsequent thereto, and whether administration
expenses or general unsecured claims, including all
claims whatsoever based on the alleged deficit status
of the Airport Operations Department Cash Account); and
City shall release all of its claims and causes of
action. against DTC.
(c) Exxon shall pay the sum of $650,000, all Of
which shall be paid by bank cashier's or .certified check
delivered to the Trustee at the Closing on the Closing
Date (as those terms are hereinafter in Article VS defined).
(d) Exxon shall release all its claimsand causes
of action against the Debtor's Estate and the Trustee
(whether pre -August 11, 1972 or arising on or subsequent thereto;"
and whether administration expenses or secured claims,
including claims purportedly secured by security interests
attaching to fueling equipment which is being sold by
the Trustee to City, and Exxon, or. unsecured, claims); and Exxon
shall release all its claims and causes of action against OTC.
2.5 .The conveyance by the Trustee of said assets shall be
in good and sufficient form suitable for recording and reasonably
satisfactory to Counsel for Exxon .and the City, and the Trustee shall
not later than five business days before the Closing Date provide
copies of the bills of sale, assignments and releases to the City
and Exxon for approval. - -
2.6 As a condition precedent to the payments heretofore
described of the City and Exxon, OTC agrees to execute and deliver
to City and Exxon at the Closing and contemporaneously with such
payments, releases and stipulations of dismissal with prejudice
in form satisfactory to counsel for Exxon and the City respectively,
-10-
L"
releasing and or stipulating to the dismissal of all causes of
action by DTC against the City or Exxon. "All causes of action"
when: used in reference to the City is defined. as all claims which DTC has
Against'the City of. any kind or nature,.: without limitation, whether arising
-before,,on. or subsequent to August 11, 1912. All causes of action when used
in reference to Exxon is defined as any and all claims which DTC
has against Exxon of any kind or naturet. without limitation, whether
arising before, on or subsequent to August 11, 1972.
2.7 City and Exxon will take such further action after
the receipt from the Trustee of the documents referred to in
Paragraph 2.1 an is contemplated by a certain letter ofintent
executed by City and Exxon. -
-11-
-12-
fJ
RELEASES OF CLAIMS BY TRUSTEE
AGAINST DTC
v"
y'
3.1 In order to induce DTC to enter into this Settlement
Agreement and to release claims which DTC has against City and Exxon
which constitute part of the quid pro quo flowing to City and Exxon
- in exchange for consideration of $1,300.}000 in cash and releases of
claims of City and Exxon,and the release by Exxon and the City
of all claims and causes of action which Exxon and the City have,
against OTC, and in consideration of DTC's,executing thisSettlement
:Agreement, Trustee hereby agrees, subject to the conditions of this
Settlement Agreement becoming final and binding, and the consummation
of the transactions provided for herein at the Closing, to release
DTC from all causes of action (the term 'All causes of action" being
.defined to includeall claims of whatever nature which the Debtor,
the Debtor's Estate or the Trustee has against DTC, whether arising
out of the events of August 11, 1972 or events subsequent thereto,
including all claims as to an accountingfor operations of the
Debtor's business by the City as DTC's agent under the Management
-
Agreement or otherwise).
3.2 At the Closing to be held on the Closing Date as
provided in Article VI, Trustee shalldeliver to DTC a general
release signed by the Trustee; and concurrently with the delivery
'
thereof, DTC shall deliver to the Trustee an executed Consent of
Secured creditor to sale of assets free and clear of liens.
-12-
IV.
STIPULATION OF. DISCONTINUANCE OF ALL
ADVERSARY PROCEEDINGS HEREIN AND PLENARY
ACTIONS IN OTHER COURTS AND CONSENT TO
DISMISSAL WITH PREJUDICE
6.1 The parties hereto stipulate that the following
'adversary proceedings will, subject to the conditions of this
Settlement Agreement becoming final and binding, and the consumma-
tion at the Closing of thetransactions provided for herein, be
discontinued and dismissed,with prejudice:
(a) The adversary proceeding commenced May 22,
1975 by DTC's Complaint for Declaratory Judgment,
including all counterclaims and crossclaims, being
the action entitled Depositors Trust Co.vs. Kurt _
Tran6-East Air, Inc., City of Bangor and Exxon
Corporation;
(b). The adversary proceeding commenced January,
1976 by Trustee Kurt's Complaint for Accounting and
Turnover of Funds, including all counterclaims and
crossclaims, being the action entitled Karr, Trustee
vs. Depositors Trust Co., and City of Bangor;
(c) The adversary proceeding commenced January,
1976, by Trustee Kurr's Complaint against Exxon Corpora-
tion alleging the receipt of preferences, being the
action entitledKurr, Trustee vs. Exxon Corporation.
4.2 The parties hereto stipulate that the following
plenary civil actions will, subject to the conditions of this
Settlement Agreement becoming final and binding, be discontinued
and dismissed with prejudice;
-13-
(A) City Of Bangor's Complaint for Declaratory
Judgment filed in duly, 1975 in the united States
District Court for Maine, Northern Division. ..
(b) Exxon's Complaint for Declaratory Judgment
and Injunction, filed in March, 1976, intheUnited
States District Court for Maine, Southern Division
(Civil Action No. ]6 -30 -SD), which was dismissed with
prejudice by Order of the District Court entered -
March 18, 1976 (but which order of dismissal i
subject to possible appeal at this time).
4.3 The parties hereto stipulate that they will take no
further action, including discovery, in -any of the above-described
adversary proceedings or plenary actions or in the Chapter E -
reurganization proceedings during the interim period before this
settlement becomes final and binding or, in the alternative, fails;
provided, however, that any of the parties may take such steps as are
necessary to protect its litigating position, such as the timely
filing of an appeal, andprovided further that all parties will seek
to expedite a favorable resolution by. the Court of the hearings .
necessary to consummate this, settlement. in the event this settlement
fails, all parties agree to waive any claim based upon laches,
estoppel or lack of diligent prosecution arising out of the
moratorium imposed hereunder.
-14-
V.
STATUS OF DTC CLAIMS AGAINST DEBTOR,
CITY AND EXXON
5.1 It is agreed by all parties that, once this Settlement
r'Agreement has become final and binding, DTC's rights in and to the
fund of money totaling $1,3000000 created by this Settlement Agree-
ment, shall be governed by the decision of Bankruptcy Judge Conrad
X. 'Cyr as set forth in his Memorandum Opinion dated March 24, 1976;
and such claim shall thereafter be treated and paid in accordance
with applicable provisions of Chapters I through VII of the
Bankruptcy Act and applicable Bankruptcy Rules. DTC agrees to
look solely to said award and its rights in. the straight bankruptcy
proceedings of the Debtor which will follow an order of transfer
of the Chapter proceedings under Rule 10-308.
5.2 It is understood that the arbitration award referred
to in Section 5.1is itself final and binding and non -appealable
in the event that this Settlement Agreement becomes final and
binding. Accordingly, the Trustee and DTC. agree with each other
that neither of them will seek to have such arbitration award
modified or amended, non willeither of them file any pleading o
take any other action (e.g., file an objection to DTC's proof of '
claim) seeking a result inconsistent with the arbitration award
referred to in Section 5.1.'
5.3 The purpose of the provisions of this Article V
s to make absolutely certain that the statue of DTC as a
claimant of the Debtor's Estate in the straight bankruptcy
proceedings will be exactly as fixed by .Judge Cyr in his capacity
-15-
as arbitrator acting within the parameters of the dispute submitted
to arbitration.
5.4 In the event this Settlement Agreement fails to
be approved and consummated, nothing contained herein shall be
deemed on the Trustee's part an admission that DTC is a secured
creditor in fact;. nor on the Trustee's or DTC's part, that the
'value of the security allegedly securing DTC'sclaim is any
particular amount. - -
5.5 It is agreed by all parties that, once this
Settlement Agreement has become final and binding, and the
consummation of the transactions provided for herein at the Closing,
all of DTC 'a claims and causes of action against City and Exxon
shall be released concurrently with the Closing and the payment
to the Trustee for the benefit of the Debtor's Estate of $525,000
by City, and $650,000 by Exxon,, and City's release of any claim it
may have to the Escrow Fund at Maine National Bank created
pursuant to the Court's Order dated July 11 1975; and DTC agrees
to execute and deliver to City and Exxon the documents referred
to in Section 6.2 and 6.3
-16-
VI.
CLOSING OF THIS SETTLEMENT
AGREEMENT
6.1 Reference is made to the provisions of Sections 1.1
and 1.2 hereof. The parties hereto agree that the closing of the
transactions contemplated by this Settlement Agreement will take
'place not later than the 10th business day following the Satis-
faction of the conditions set forth in Sections 1.1 and -1.2. In
the event the Chapter X Court has .disapproved this Settlement
Agreement, then forthwith upon such. Order of Disapproval being
entered all obligations of each of the parties hereto to each of
the other parties hereto shall be definitively cancelled and
terminated;. in which event, the status of all now pending
adversary proceedings and all now pending civil actions shall be
restored to the same status as in effect on the date immediately
preceding the execution of this Settlement Agreement. If,
notwithstanding approvalby the Chapter X Court of. this Settlement
Agreement, for legally valid and sufficient reasons, the parties
ate unable to close the transactions provided for herein (such
as the pendency of an appeal and the existence of a stay pending
appeal; or the pendency of an application to the Chapter x Court
for reconsideration of its order of approval; or any other valid
reason) not later than October 310 1976, then in such event the
parties agree that commencing November 1, 1976, they will
negotiate with each other as to an extension of timer but after
November 1, 1976, any party hereto may, by notice to the other
parties and the Chapter X Court (and in the case of the Trustee,
with the approval of the ChapterX Court) terminate this Agreement;
in which event the consequence shall be the same as if the
Chapter X Court had disapproved this Settlement Agreement.
-17-
6.2 If the conditions referred to in Section 6.1,
1.1., and 1.2 hereof have been satisfied, the Closing shall take
place on the 10th business day after such conditions have been
satisfied (orat such earlier date as shall be agreed to by all
four parties hereto) at the offices of DTC's counsel, Rudman,
Rudman 6 Carter, 84 Barlow Street, Bangor, Maine. At the closing:
(a) Trustee shall deliver to City and Exxon jointly:
(i) An assignment of all right, title and interest in the
property mention in Paragraph 2.1(a) through (i);
(ii) Bills of sale and assignments covering allpersonal
property, of the Debtor, tangible and intangible, which is to be
sold to the City and Exxon pursuant to Paragraph 2.1;
(iii) An .instrument of consent of secured creditor,
signed by DTC, whereby DTC consents to the sale, assignment and
transfer to City and Exxon jointly of certain assets of the Debtor
which maynow be subject to DIC 'a security interest, subject to
the transfer of such security interest to the proceeds of such.
sale.
(b) Trustee shall deliver to the City an instrument of
general release running to the City signed by Trustee and an,
instrument of general release running to the City signed by DTC. -
(c) Trustee shall deliver to Exxon an instrument of general
release running to Exxon signed by Trustee and an instrument of
general release running to Exxon signed by DTC.
(d) OTC shall deliver to the Trustee in order to enable
Trustee to deliver the same to City and Exxon:
(i) Aninstrument -.of general release running to the City;
(ii) An instrument of general release running to Exxon;
(iii) An instrument of consent of secured creditor
running to City and Exxon jointly.
-18-
(e). City shall deliver to the Trustee; _
(i)- A bank cashier's check or certified check, payable
to the order of the Trustee, in the amount of $525,000;
(ii) An instrument of release, running from the City
to the Trustee, releasing all claims by City to the sums deposited _
in escrow with Maine National Bank pursuant to the Court's July -1,.
1975 Order; - -
(iii) An instrument of general release running to the,
'Debtor, the Debtor's estate and the Trustee signed by the City; and
(iv) An instrument of general release running to DTC
signed by the City.
(f) Exxon shall deliver to the Trustee:
- (i) A bank cashier's check or certified check, payable
to the order of the Trustee, in the amount of $650,000;
(ii) An instrument of general release running to the
Debtor, the Debtor's estate and the Trustee signed by Exxon; and
(iii). An instrument of general release running to OTC
'signed by Exxon.
6.3 At the closing all parties will execute stipulations
of 'dismissal with prejudice of all the adversary proceedings and
plenary actions mentioned in Paragraph 4 hereof.
-19-
VII
SUBMISSION BY ALL PARTIES TO JURISDICTION
OF CHAPTER X COURT TO RESOLVE DISPUTES AND
CONTROVERSIES ARISING HEREUNDER; CONTINUING'
JURISDICTION OF BANKRUPTCY COURT AFTER RULE
10-308 ORDER
7.1, Each of the parties hereto recognizes and submits to
the jurisdiction of the Debtor's Chapter X Court to adjudicate and/or
resolve any dispute or controversy amongst any two or more of the
parties to this Settlement Agreement arising hereunder; and any 'dispute
or controversy whichmay hereafter arise by reason of any circumstance
or. situation, whether or not :the same has been specifically foreseen
and adverted to herein, which threatens to. prevent the. consummation
of the compromise settlement effected by this Settlement Agreement.
In exercising such jurisdiction, the Chapter X. Court shall be
guided by the fact that this Settlement Agreement is being entered
into in good faith, by the four parties hereto for reasons of avoidance
of the uncertainties and expense of litigation.
7.2 Inparticular, it is the intent of the parties, that
subsequent events, including for example offers made by non-parties to
this Settlement Agreement alleging willingness to purchase or otherwise
acquire the Debtor's assets for allegedly greater consideration
,than that offered hereby, shall not be grounds for the Trustee
and/or OTC to seek to avoid the commitment to settlement made hereby.
Conversely, it is the intent of the parties that no adverse or -
favorable development in relation to the business of the Debtor (e.g.,
establishment of a competing airport;. changes by Congressional
enactment in legislation relating to fuel prices; new boycotts or
price increases by OPEC nations) shall be grounds for the City
and/or Exxon to Seek to avoid the Commitment t0 settlement made
hereby. In this connection, each party hereto agrees to waive
20-
contentions such as force maje_ or the occurrence after the
signing hereof of any event which makes the bargain struck hereby
appear in hindsight to be less advantageous to a party than when
this Settlement Agreement was signed. In addition, by authorizing
its City Manager to execute this Settlement Agreement, City of Bangor
by its City Council, hereby waives any and all contentions that
this Agreement is not authorized; that it is "ultra vires"; or
that it is "illegal" in any respect whatsoever, under the law of the
State of Maine, its municipal charter, or otherwise. The attorneys
for the City, Eaton, Peabody, Bradford 6 Veague, shall furnish the
Court, and the parties with a signed opinion, concurrently with execution
thereof, stating in substance that this Settlement Agreement was duly
authorized by the City Council, was duly executed on behalf of the City
by its City Manager, and is irrevocably valid and binding one and
enforceable against, the City of Bangor, in accordance with the terms
hereof.
7_3The jurisdiction to resolve disputes arising hereunder
which the parties recognize to be possessed by the Debtor's Chapter
X Court shall pass, by operation of law, to the Debtor's Bankruptcy
Court upon entry of an order under Rule 10-308 converting the
proceedings to straight bankruptcy and adjudicating the Debtor a
bankrupt. -
7.4 The provisions of this Settlement Agreement shall survive
the closing provided for in Article 6.
7.5 Once the Closing provided for in Article 6 has been
consummated, City and Exxon shall have the benefit of all the terms.
and provisions of this Agreement without regard to any subsequent
order which may be entered by the Debtor's Chapter X or Bankruptcy Court.
'Fa'+e
-21-
IN WITNESS WHEREOF, "the parties hereto have executed this
Settlement Agreement by their attorneys thereunto duly authorizedi
this - day of April, 1976.. -
DEPOSITORS TRUST COMPANY
By its attorneys -
By
Paul L.Rudman
Rudman,
Rudman s Carter
84 Harlow Street -
Bangor, Maine 04401
GEORGE W. KURR, JR., Trustee
George W. Kurr, Jr.
CITY OF BANGOR, MAINE
By its attorneys
B
Brown
Omae M. Brn
Eaton., Peabody, Bradford 6 Veague
six state Street
Bangor, Maine 04401
ENRON CORPORATION
By its attorneys
Thomas Schulten
Perkins, Thompson, Hinckley S
Soddy
One Canal Plaza
Portland, Maine 04112
-22-
contentions such as force ma eure or the occurrence after the
signing hereof of any event which makes the bargain struck hereby
appear in hindsight to be less advantageous to.a party than when
this Settlement Agreement was signed. In addition, by permitting
its attorneys to execute this .Settlement Agreement, City of Bangor
by its City Council, hereby waives any and all contentions that
this Agreement is not authorized; that it is "ultra vires"; or
that it is "illegal" in any respect whatsoever, under the law of the
State of Maine,. its municipal charter, or otherwise. The attorneys
for the City shall furnish the Court and the parties with a signed -
opinion, concurrently with execution thereof, stating in substance
that this Settlement Agreement wasduly authorized by the City
`Council, was duly executed on behalf of the City bythe firm of Baton,
-Peabody, Bradford & Veague, and is irrevocably valid and binding on,
and enforceable against, the City of Bangor, in accordance with the
terms hereof.
7.3 The jurisdiction to resolve disputes arising hereunder
which the parties recognize to be possessed by the Debtor's Chapter
X Court shall pass, by operation of law, to the Debtor's Bankruptcy
.Court upon entry of an order under Rule 10-308 converting the
proceedings to straight bankruptcy and adjudicating the Debtor a
bankrupt.
7.4 The provisions of this Settlement Agreement shall survive
the Closing provided for in Article 6.
7.5 Once the Closing provided for. in Article 6 has been
consummated, City and Exxon shall have the benefit of all the terms -
and provisions of this Agreement without regard to any subsequent
order which may be entered by the Debtor's Chapter X or Bankruptcy
Court.
-21_