HomeMy WebLinkAbout2006-05-22 06-196 ORDERItem Ro. 06 196
Date: 5-22-06
Item/Subject Order, Authorizing the City Manager to Execute an Amended and Restated
Indenture of Final Lease with Bangor Historic Track
Responsible Department: City Manager/Legal
In order to proceed with the Riverside Block, the Fnat tease between to City and Bangor Historic
Track must also be amended. A variety of changes have been negotiated both to address the
location change and a number of issues in the final lease as originally negotiated with to
predecessor to Bangor Historic Tack which have been superseded by events orchanges that have
occurred since the initial slot referendum was approved In 2003. Lengthy negotiations have taken
place between the City and Penn National, the parent company of Bangor Historic Track, and a
revised and amended final lease has been developed.
Among the significant changes are: adjusting the term t an initial 15 years wit three 10 year
options; reducing to area of Bass Park to be leased m Bangor Historic Track and establishing a
revised property lease rate with periodic adjustments; clarifying to portion of the Bass Park
Property for which Bangor Historic Track will be responsible for real propend taxes; simplifying the
language relating m revenue sharing payments to be made by the City by eliminating the current
Provisions under which such payments may either Increase or decreasing and requiring a straight
3% of gross slot machine income plus to 1% hog community payment required by State statute;
clarifying liability and insurance requirements; and addressing cost sharing and risk allocations
should any signficant changes in law take place.
The Council has been kept informed of these and other issues and changes as to negotiating
process has moved forward. The attached lease amendment, again, would become effective only If
Bangor Hlrtorlc Track acquires to private properties located on to Riverside Block on or before
December 31, 2006.
Department Head
Q,
City Manager
Associated Information:
Budget Approval:
Finance Dweell
Legal Approval:
city ��Ifiawr
Inboduced for
X Passage
Fimt Reading Page _ of _
_ Referral
66 196
�, AssignM mCmmrular Yalmr 11eY 22. 2006
CITY OF BANGOR
(TITLE.) ORDER, Authonzing the Ory Manager W Execute an Amended and Restated
Indenture of Final Lease with Bangor Historic Track
WHEREAS, the CRy and the predecessor to Bangor Historic Track, Inc. (BHT) entered into a
Final Lease dated October 31, 2003 under which BHT leased a portion of the City's
Bass Park Complex for the purpose of operating a harness racing track and for use
as the location of a permanent gaming facility; and
WHEREAS, this agreement was subsequently amended on July 5, 2005 M authorize BHT to
establish a temporary gaming facility and to adjust certain dates and other
requirements of the original agreement; and
WHEREAS, under existing agreements, BHT has an obligation to develop a permanent gaming
facility at Bass Park; and
WHEREAS, the City has identified a number of concerns regarding locating the permanent
facility in Bass Park including the potential necessity of relocating the Bangor State
Fair; a negative impact on parking availability for visitors to events at the Bangor
Auditorium and Civic Center,, the potential elimination of Bees Park as a possible
location for a new arena; and possible trathc impacts; and
WHEREAS, as a result of these considerations, the City has worketl with BHT to invesui
other possible locations near Bass Park for the construction of the Permanent
Gaming Facility; and
WHEREAS, BHT has proposed locating this facility on Main Street between Lincoln and Dutbon
Streets, the Riverside Block so-called; and
WHEREAS, the parties agree that this location would avoid the potential negative impacts
associated with constructing this facility at Bass Park; and
WHEREAS, it is the intention of BHT to move forward! With the acquisition of the alternate site
on Main Street subject to subject to amending various agreements with the City W
allow this alternative to proceed; and
WHEREAS, the Cry has determined that development on the Riverside Block Is in the best
interests of the citizens of Bangor, and
WHEREAS, transferring the location of the permanent facility requires a variety of adjustments
to the terms and conditions of one Final Lease;
O6 196
NOW, THEREFORE, BE IT ORDERED BY THE CITY COUNCIL OF THE CITY OF BANGOR
THAT
The City Manager is hereby authorized to execute, in a form substantially the same as is
attached hereto, an Amended and Restated! Indenture of Final Lease with Bangor Historic
Track, Inc. subject to and conditioned upon the acquisition by Bangor Historic Track, Inc. of the
parcels located whin the Riverside Block, Le., the area bounded by Main, Urchin, and Dutton
Streets, on or before December 31, 2006.
The Amended Final Lease shall be in a final form as approved by the City Solicitor or Assistant
City Soliater.
IN CITY W MOIL
May 22, 2006
Motion Made aad Seconded
for Passage
Motion Made ana Seconded
to hneod by Su Stitution
Passed
Motion Made and Seconded foi
Pa sn " dm ed
Passey
R OR_Ie
O EDEN
(11YLEJAthorlalvE the City Meva¢er to
Execute an evended nod g Stated Indenture
of Pioal Lease alth Ean¢or Etutarit
Track
nevigeed is CasneYor P,��di^
4�
0 6 � 146 ns p.,w,raQee�
Assigncdro Councilor
:a
CITY OF BANGOR
(MILE.) ORDER, Authoniing the City Manager to Execute an Amended and Restated
Indenture of Final Lease with Bangor Historic Tmdc
WHEREAS, the City and the predecessor to Bangor Historic Track, Inc. (BHT) entered Into a
Final Lease dated October 31, 2003 under which BHT leased a portion of the Ows
Bass Park Complex for the purpose of operating a harness racing track and for use
as the location of a Permanent gaming facility; and
WHEREAS, this agreement was subsequently amended on July 5, 2005 to authorize BHT M
establish a temporary gaming facility and to adjust certain dates and other
requirements of the original agreement; and
WHEREAS, under existing agreements, BHT has an obligation to develop a permanent gaming
facility at Bass Park; and
WHEREAS, the City has Identified a number of concerns regarding locating the permanent
facility in Bass Park including the potential necessity of relocating the Bangor State
Fair, a negative impact on parking availability for visitors to events at the Bangor
Auditorium and Civic Center; the potential elimination of Bass Park as a possible
location for a new arena; and possible traffic Impacts; and
WHEREAS, as a result of Mese considerations, the City has worked with BHT to investigate
other possible locations near Bass Park for the construction of the Permanent
Gaming Facility; and
WHEREAS, BHT has proposed locating this facility on Main Street between Lincoln and Dutton
Streets, the Riverside Block so-called; and
WHEREAS, the parties agree that this location would avoid the potential negative impacts
assoclated with construcdng MIs facility at Bass Park; and
WHEREAS, R is the intention of Bi if to move forward with the acquisition of the alternate site
on Main Street subject to subject to amending various agreements with the City to
allow this altemative to proceed; and
WHEREAS, the City has determined that development on Me Riverside Block is in the best
interests of the citizens of Bangor; and
WHEREAS, transferring the location of the permanent facility requires a variety of adjustments
to the terms and conditions of the Foal Lease;
NOW, THEREFORE, BE IT ORDERED BY THE CITY COUNCIL OF THE CITY OF BANGOR
THAT
The City Manager is hereby authorized to execute, In a form substantially the same as is
attached hereto, an Amended and Restated Indenture of Final Lease with Bangor Historic
Track, Inc. subject to and conditioned upon the execution on or before May 26, 2006 of
Purchase and Sale Agreements by and between Bangor Historic Track, Inc. and L & C
Corporation and Kenduskeag yacht Club providing for the acquisition by Bangor Historic Track,
Inc. of the privately owned parcels located within the Riverside Block, so called, i.e., the area
bounded by Main, Lincoln, and Dutton Streets Bangor, Maine, said acquisition to occur an or
before December 31, 2006.
The Amended Final Lease shall be in a final form as approved by the City Solicitor or Assistant
City Solicitor.
Attachment to Item Number 06196 5-22-06
AMENDED AND RESTATED INDENTURE OF FINAL LEASE
THIS AMENDED AND RESTATED INDENTURE OF FINAL LEASE,
executed as ofthe _ day of� 2006, by and between:
CITY OF BANGOR, a municipal corporation organized and
existing under and by virtue of the laws of the State of Maine, and
having its principal offices at 73 Harlow Street, Bangor, Maine
(hereinafter reP ed to as "Lessor');
FWp.
BANGOR HISTORIC TRACY, INC, a Maine corporation and the
successor to CAPITAL SEVEN, LLC under a certain Indentue of
Final Lease, dated as of October 1, 2003 (hereinafter sometimes
referred to as "Lessee').
WITNESSETH:
WHEREAS, Lessor and the predecessor and assignor of Lessee on October 31, 2003
entered Ingo a certain Development Agreement for the Development of a Portion of Bass Park,
dated October 31, 2003 (the "Development Agreement'), a certain Bangor R seway Initial
Lease Agreement dated October 31, 2003 (the `Initial Lease'), and a certain Indenture of Fhml
Lease dated as of October 1, 2003 (the "Final Lease'), as amended by a certain Amendment to
Development Agreement, Bangor Raceway Initial Lease, and Indenture of Final Lease dated as
of July 5, 2005 (the "Final Amendment") and as further as amended by a certain Second
Amendment to Development Agreement, Bangor Raceway Initial Lease, and Indenture of Final
Lease dated on or about the date hereof (the "Second Amendment) respectively (the
Development Agreement, Initial Lease, and Final Lease as Amended by the First Amendment
and the Second Amendment shall be referred to herein collectively as the "Original
Doemments," suit caduaUeed more; not otherwise defined herein shat) have the meanings
assigned to them in the Original Documents); and
WHEREAS, the Lessor is the owner of improved rest property commonly known as Bass
Park located on Dutton Sleet in the City of Bangor, County of Penobscot, State of Maine, end
the additional parking area (the "Parking Area") located on City -owned land at Bass Park, such
Parking Area and certain portions of Bars Pink that shall comprise a portion of the demised
premises hereuder are depicted on EXIDDIT A enne out hereto and made a part hereof (such
portions of Bass Park (other than the Parking Area) herein sometimes referred to as the "Limited
Portion of Bass Park"); and
WHEREAS, the Lessor has identified a number of concerns regarding locafing the
Permanent Gaming Facility (as that term is defined elsewhere herein) in Bass Pink including the
potential necessity of relocating the Bangor State Fair; a negative impact on parking for visitors
to events and activities at the Bangor Auditorium and Civic Center, the potential elimmumor of
Bass Park as a possible location for a new arm; and possible traffic impacts on adjacent
residential neighborhoods; and
WHEREAS the Lessee identified a number of benefits to Lessee in relocating the
Permanent limning Facility to a location other than Bass Park; and
WHEREAS, as a result of these considerations, the Lessor has enmoraged Lessee to
investigate other possible locations now Bass Park for the construction of the Permanent Gaming
Facility, and
WHEREAS, subsequent to this request, Lessee has provided to Ne Lessor an alternative
proposal for the development and operation of a portion of the real property located Ens[ of Main
Strict between Lincoln and Dutton Streets in Bangor, Maine as described on EXHIBIT B
amhexed hereto and made a part hereof (the "Riverside Bioek'7 as a Permanent Gaming Facility.
The Limited Portion of Bass Park, the Parking Area, and the portion of the Riverside Black
depicted on EXHIBIT B-1 shall be known herein as the "Premises"); and
WHEREAS, the parties agree that this location would avoid the potential negative
impacts associated with constructing the Permanent Gaming Facility in Bass Park while
providing for a facility located in close proximity w the existing harness rucing oval; and
WHEREAS, this Amended and Restated Indenture of Final Lease ("Amended and
Restated Float Lease" or "Lease") is being executed pursuant to the terms aM conditions ofthe
Development Agreement, as amended, and is the agreement of lease referred to in the
Development Agreement, as amended, as the "Final Lease" or the "Amended and Bearded
Flood Lease."
NOW, LITEREFORE, W CONSIDERATION of the agreements contemner the Premises
and the mutual promises, covenants, terms and conditions contained in this Amended and
Restated Final Lease the parties do hereby agree as follows:
ARTICLE I—PREMISES
The Lessor, for and in consideration of the rents to be paid and the obligations w be
performed by Lessee as hereinafter provided, does hereby demise and lease unto Lessee, and the
Lessee does hereby take and hire from the Lessor during the Term (as defined) and, upon and
subject to the terms and conditions hereinafter expressed, and mother conditioned upon
conveyance of a deed to the Permanent Gaming Facility portion of the Riverside Block per the
Development Agreement, as amended, the Premises together with ail improvements [beret,
a�,:,a�aaoass>se.a Page 2 of
thereon and/or thereunder sitmoodi all in its Present physical condition as may be owned by
Lessor, it being acknowledged that improvements situated on the l8verside Block are not and
shall not be owned by Lessen.
ARTICLE II— MAINTENANCE
1. Lessee shall, at its sole cost, provide all necessary maintenance and repair of the
premises and all improvements thereon, including the maintenance, replacements and repair
necessary to keep the facilities in compliance with applicable fine and life safety codes. Lessee
and Lessor agree to meet, coNer and develop a long term plan for the future maintenance of the
barns, said plan to be agreed upon on or before March 1, 2007. Lessee and Lessor acknowledge
that it may be appropriate and prudent to reduce the number of bums to be retained at Bass Park.
The plan shall include an agreement for the number of barns to be retained and the level, type
and schedule of maintenance of the bums.
2. to the interim period between the date hereof and the finalization of the long term
plan referenced in the preceding paragraph, the Lessee shall he responsible for making any and
all replacements, repairs and improvements to the barns and related structures and improvements
located on the Limited Portion of Bass Park Portion of the Premises required in order to maintain
the barns and related structures and improvements in the condition in which they exist and to
comply with applicable fire and life safety order, provided however, thar Lessor or its agems or
employees shall conduct those regained repairs, improvements or replac onems for which Lessee
is responsible, subject to reimbursement by Lessee as set forth below. Lessee shall reimburse the
Lessor far all costs associated with such replacements, repairs and improvements as are approved
in writing, in advance, by Lessee based on a general description of fire work to be performed and
a good faith estimate of the cost of the work provided by the Lessor to the Lessee in advance of
performance of the work. Provided had Lessee is making a good faith effort to reach an
agreement with Lessor on individual work orders submitted to the Lessee by the Lessor, and on
the long term plan referenced in the preceding paragrapb, Lessor shall not assert a breach of this
agreement based upon the maintenance of Ne hams and related structures and improvements on
the basis of a failure m comply with applicable fire and life safety codes. Upon acceptance and
approval of the long term maimerunce plan, any and all maintenance work obligations of Lessor
shall amomatically terminate except as may be provided in the approved long term maintenance
plan and except for any particular tasks then incomplete, which Lessor shall complete in
accordance with the above.
3. The Lessm, as Landlord (but not in limitation of the other powers of Lessor to
inspect, enter upon or otherwise investigate the Premises), and its desigamed represenmtives
shell have a right of access to inspect the Parking Area and the Limited Portion of Bus Park
Portion of the Premises and to m urs take repairs, replacements and improvements consistent with
the foregoing. Formal inspections of the Limited Portion of Bass Park portion of the Premises
may be conducted by the Lessor prior to and following Ne Harness Racing Season each year
during the Tem. The purpose of these inspections is to aid in establishing the long-term
mamtenance plan specified above. In the event Lesson fails to make repairs or to keep the
Parking Area and the Limited Portion of Bass Park portion of the Premises and all improvements
rwv.x.,gwaasaraa.a Page 3 of 46
thereon in a safe and sanitary condition and otherwise as provided herein, Lessor shall have the
right to eater upon the Parking Area and the Limited Portion of Bass Park Portion of the
premises for purposes of making repairs and to charge the cost of such repairs to Lessee, which
charges shall be payable as an Additional Fee hereunder, payable within ninety (90) days of
demand by Lessor in the form of an invoice of such charges and costs to Lessee; provided,
however, that Lessor repairs can only be made in the event Lessee fails 10 adequately maintain
and repair the Parking Area and the Limited Portion of Bass Park portion of the Premises in
accordance with the terms hereof. Lessor shall have the right to enter upon the Parking Area and
the Limited Portion of Bass Park Portion of the Premises for purposes of making repairs and
improvements in accordance with the long-term maintenance plan or approve interim work
orders referenced in paragraphs (1) and (2), respectively, above. All work will be performed in a
moment and at times reasonably designed to minimize disruption of Lessee's business operations
m such facilities. Lessor shall charge the cost of such repairs and improvements to Lessee up to,
but not exceeding, the amounts approved for such repairs and improvements order either the
long-term rna ncenance plan or approved interim work orders referenced in paragraphs (1) and
(2), respectively, above
ARTICLE III. TERM
1. TO HAVE AND TO HOLD the demised Premises unto the Lessee for an wand
term (the 'Term") commencing on the Commencement Data (as def ed) and continuing for a
period of fifteen (15) years thereafter. For purposes of dos Amended and Restated Final Lease
the term (a) "Commencement Date" shall be and mem the later of the date upon which the
Lessor conveys title to the Riverside Block portion of the Premiss to the Lessor pursuant to
Section 4 of the Second Amendment and the data upon which Lessce commences Commercial
Operations at the Permanent Graining Facility. As herein used, the phrase `Lease Year" or
"lease year" shall mean each successive period of twelve (12) calendar months beginning (if the
(ovmincoment Dau is not Jammy 1) on the January I following the Commencement Date, and
the partial year between the Commencement Date and the first January, 1 during the Term.
2. The Lessor does hereby give and grant mon the Lessee the irrevocable right and
option (the "First Option') to extend the wdal Term for an additional period of ten calendar
years (commencing on the first day following the expiration of the Initial Term and continuing
for a period of ten years asereafter); which wakened period shall be referred to herein as the
"First Extended Term". The First Option may only be exercised: (1) by written notice ("First
Exercise Notice) committed by the Lessee Is the Lessor m least 90 days prior to the expiration
of the Initial Term; and (II) if on the last day of the wtial Term there shall exist no materw
warrant branch of this Amended and Restated Final Lease by the Lessee. H in Lessor's opinion
there exists a material uncured breach of this Lease, then within ten days of receipt of the First
Exercise Notice and within ten days prior to the expiration of the Initial Term the Lessor shall
advise the Lessee, in writing, as to the existence (in the opinion of the Lessor) of my material
ancured breach of the Amended and Restated Final Lease by the Lessee; and the Lessce, in each
issuance, shall be evaded to care the same prior to the expiration of the initial Term.
3, The Lessor does hereby give and grant unto the Lessee the irrevocable right and
option (the "Second Option") to extend the tribal Term for an additional period of ten calendar
1w.nw+awn<59]ma Page 4 of 46
years (commencing on the first day following the expiration of the First Extended Term and
continuing for a period of ten years thereafter); which extended period shall he referred to herein
as the "Second Extended Term". The Second Option may only be exercised: (1) by written
notice ("Second Exercise Notice") transmitted by the Lessee to the Lessor at tent 90 days prior
In the expiration of the First Extended Term; (11) if on the Iasi day of the First Extended Tenn
there sball exist no material uncured breach of this Amended and Restated Final Lease by the
Leasee; and (III) if the First Option was exercised. If in Lessor's opinion there exists a material
assured beach of this Lease, Wen within ten days of receipt of the Second Exercise Notice and
within ten days prior to the expiration Of the First Extended Term We Lessor shall advise the
Lessee, in writing, as to the existence (in the opinion of the Lessor) of any material uncured
breach of the Amended and Restated Final Lease by the Lessee; and the Lessee, in each immune,
slW[ be entitled to cure the same prior to the expiration of the First Extended Term.
4. The Lessor do" hereby give and grant unto the Lessee the inevocsble right and
option (the "Third Option") to extend the Initial Term for m additional period of ten calendar
years (commencing on the fust day following the expiration of the Second Extended Tema and
continuing for a period of Our years thereafter); which extended period shall be referred to Immin
as the-7hird Extended Term". The Third Option may only be exem eed: (1) by written notice
("Third Exercise Notice") rummaged by the Lesson he the Lessor
the least
Extendedtre hr
expiration of the Second Extended Term; (1) y o
Were shall exist no maerial uncured breach of this Amended and Restated Final Lease by the
Lessee; and (111) if the Second Option was exercised. If in Lessor's opinion there exists a
material mewed beach of flux Lease, then within ten days of receipt of the Third Exercise Notice
and walsim ten days prior to the expiretion of the Second Extended Term the Lessor shall advise
Use Lessee, in writing, as to the existence (in the opinion of the Lessor) of any material uncured
breach of the Amended and Restated Final Lease by the Lessee; and the Lessee, in each instance,
shall be entitled to cure the some prior to the expiration of the Second Extended Term.
5. Notice ofNon-Renewal. In the event that Lessee shall not Wnely transmit the First
Exercise Notice, Second Exercise Notice, or Tbird Exercise Notice (each a "Renewal Exercise
Notice"), Wen, as a condition of the expiration of this Used by non -renewal, the Lessor shall
Bed give Lease, written notice of the lack of timely receipt of a Renewal Exercise Notice (the
"Notice of Non -Renewal'). Less" shsll have thirty (30) business days from the receipt of such
Notice of Non -Renewal to deliver or Lessor the applicable Renewed Exercise Notice. If the
Renewal Exercise Notice is timely delivered, this Agreement shall, subject to Were being no
material uncured breach of the Lease as aforesaid, continue in full force and effect fa the
applicable First, Second, or Third Extended Term. If the Renewal Exercise Notice is not timely
delivered within said thirty (30) business days, then and only then shall this Lease expire M a
result of Lessee's nein-renewal.
b. Eontemp ubjecousdy wild the expiration or earlier termination of this Amended
and Restated Final Lease, for any reason whatsoever, the Lessor's interest in the portion of the
Riverside Block conveyed by Lessee to Lessor shall be recenveyed by the Lessor to the Less"
by municipal quitclaim deed, conveying title to the land, including any tide Iden Lessor may hold
avm,ma,�(WDa59]98.3
Page of 46
in and bo any buildings, structures and improvements located on the portion of the Riverside
Block owned by Lessor, subject to only such encumbrances and restrictions as existed at the time
of conveyance to rhe lessor by the Lessee under section fila) oftise Second Amendment and any
ddifioml encumbrances and restrictions thou have been created, agreed to or suffered by Lessee.
The Lessor and Lessee shall execute and deliver all necessary deeds, documents and certificates
related to same. The Lessee shall be responsible for all closing costs related thereto, including
Pointer taxes, recording fees, and my other fees or charges related to the hard My
,conveyance to Lessee pursuant re this section shall be subject to my tax Bens affecting the
Premien, andlor the Lessor's right to assert tax liens against the premises.
ARTICLEIV - COMPUTATION OF ANNUAL PAYMENTS
Lessee covenants w pay to the Lessor each and every year during the Term for the
Premise the following amounts (collectively lie "Required Payments"):
1. Rent
(A) Subject to the provisions of subparagraphs (B) and (C) below, the Lessee shall
pay, without abatement, deferral at setoff (except as whorwise provided herein), to the Lessor as
Rent an amount equal to $104,000 per aurum.
(B) Effective upon the beginning of emh fifth lease year of the Term (each an
"Adjustment Date"), the Nen effective mmoad Rent shall be increased by an amount expand to
the greater of the following: (i) five percent (5%); or (ii) the percentage increase in the
"Consumer Price Index for Urban Wage Eames and Clerical Workers ('CPI -W')," U.S. City
Average, "All Items Index," as published by the United States Bareau of Labor Statistics ("the
Inde="). Such increases shall be computed from the Cormevor ent Date (or the last
Adjustmrnt Date, as the case may be) through the first &Y of each five year period for which an
adjustment is being made hereunder. In the event that the Index is not then in existence, the
parties slat use such equivalent price index as is published by my suwessor governmental
agency Nen in existence or if none, Nen by such nongovernmental agency as may Nen be
publishing an equivalent price index, in lieu of and adjusted to the Index. Ifthe Index sial cease
to use the 1982-84 average of IN as the basis of calculation, or do substantial change is made in
the terms or number of items contained in the Index, the Index shall be adjusted to canfom to
such change, using such computation thereof, if available, as shall he employed by The United
States Department of Labor in computing same. It is understood that the detemimtion of the
Rent increase for each five-year period after the first five years of the Term may be delayed until
after the commencement of such five-year period, and in such event, Teomt shall wartime to
pay Rent at lie mound rate applicable m the preceding five-year period until such determination
is made, at which time Tenant sial pay, as additional rent, such =paid Rent as is Nen accrued
(C) Rent shall be paid monthly in advance our Ne first day of each and every month
Lessee shall pay all rentals herein required, without prior demand therefor, in lawful money of
the United States, at the address of the Lessor as set forth herein or at such other reasonable
ryewy,p[J,9nss]ea]
Page 6 of 46
platys as the League may designate. Late payments shall be subject to an interest charge of one
patent (1%) per month b the date ofpaymmt.
2. Revenue Sharing Payments:
(A) Ercept as specifically set forth in Article XXXHI hereof, Lessee shall pay Lessor,
without abatement, deferral, or set-off (except as expressly provided herein) revenue sharing
equal On dre sum of the following:
(i) Ore amount Lessee is obligated to pay On Lessor as revenue sharing pursuant to
8 MRSA. § 10 11(4) (the "Section 1011(4) Payment'); plus
hi) an arcual amount equal to three percent (3%) of the total Cross Slat Machine
Income (as that term is defined below), minus amounts paid under subsection (i) above
for such period.
The amount payable under clauses (i) and hi) above is hereinafter referred to as "Iteveoue
Sharing!' Revenue Sharing shall be paid monthly on or before the 30th day following the end
of such calendar month based upon results of Lessee's operations for the preceding month.
For purposes of clarity, Lessee and Lessor acknowledge that the Section 1011(4)
Payment made under subsection (i) above is intended to satisfy the minimum revenue sharing
rcqu"vemevts of 8 MILS A. § 1011(4), ere currently in effect. A copy of S M.R.S.A. § 1011(4), as
app
currently in effect, is ended hereto as UX 11311 G for reference purposes.
For the purposes of calculating Lessee's payment obligations under clause (ii) above,
"Gross Slot Machine income" means money, tokens, nadirs or similar objects or things of
value used m play a slat machine minus money, credits or pries paid out to winners related or
attributable to the gaming machines operated by Lessee that are located in the municipality.
(B) Lessee and Lessor acknowledge that an additional one percent (1%) of adjusted
gross, slot machine income is payable directly by Lessee b Lessor pursuant to 8 MRSA
§1036(2X1) (the "Section 1036(2)(.1) Tax"). The parties acknowledge that, notwithstanding the
requirement of 8 M.R.S.A. § 1036(2)(J) that payments thereunder we to be made directly by
Lesser to Lessor, the State of Maine is currently collecting and distributing the Section
1036(2)(1) Tax. The parties hereby acknowledge their acceptance of this payment arrangement
and agree that in the event the State cones b act as the collection and payment new with
respect in said payments, than Lessee will make the required payments b Lessor in accordance
with 8 M.R-S.A. §1036(2)(J).
(C) Subject to the provisions of Article XXX1R (the provisions of which shall wntrol in
the event of any inconsistency between this section and Article =111):
(i) In the event of a revision or ammdment m 8 MRSA §1011(4) (or any futme
sretute(s) embroiling the same subject matter), that results in:
a,usuawV0015ar9a.]
Page 7otos
(a) an increase in the Section 1011(4) Payment amount or percenmge,
Nen the Revenue Sharing payable hereunder shall be nummonfically increased to
such greater amount; and
(b) a decrease in the Section 1011(4) Payment amount or percentage, man
the amount of Revenue Sharing payable hereunder shall remain fixed m that at no
time shall the Revenue Sharing payable hereunder. drop below the 3% of total
Gross Slot Machine Income.
(i) In the event of a revision or amendment m 8 MRSA $1036(2)(.1) (or my
Emma smmte(s) controlling the same subject matter), dust results in:
(a) an incrome in the Section 1036(2)(J) Tax= dn Lessee shall pay such
higher amount to Lesser under Section (B) above; and
(b) a decrease in the Section 1036(2)(1) Tax, thea fe amount of 1% in
effect at the time Nis Lease is signed shall be payable ender Section (B) above.
(D) Except as expressly set fords in Article XXXRI hereof (the provisions of which
shall control in Ne event of my inconsistency between this section and Article XXX111) if with
respect to any Lease Year and regardless of whether or not Gaming Machines shall be in
operation at the Premises, the Revenue Sharing determined f accordance with the provisions of
subparagraphs (A), (B) and (C) above is less then the minimum amounts set forth below
('Revmue Sharing Floor Amount"), then within 60 days following the and of such Lease
Year ft Lasses shall pay to the Lessor an amount equal to the Revenue Sharing Floor Amount
in effect for that Lease Year minas the actual Revenue Sharing for such Lease Year. ne
Revenue Shamir Floor Amount shall be the amounts set forth below for the periods indicated:
(i) Dining the initial 15-year Tena of this Lease, the Revenue Sharing Floor
Amount shall be an amount equal to 31,000,000 per Lease Year; and
(it) Inning the First Extended Term, Second Extended Term and Thhd
Extended farm, the Revenue Sharing Flom Amount for each Lease Year shall be fifty
percent (50A) of the actual Revenue Sharing paid by Lessee for the immediately
Preceding Lease Year.
(B) Lessor and Lessee acknowledge Nat the Section 1011(4) Payment and the Section
1036(2) (d) Tax are imposed by Maine law requirements as m revenue timing payments.
Notwithstanding fat such amounts ere revenue sharing payments, failure m make payment of
such omouots in rcomence with the terms and provisions of this Lease shall constitute a
violation of this Lease for which all remedies available for non-payment of rent shall apply. All
other amounts, fees, charges and costs payable by Lessor hereunder stall be considered Rent or
"Additional Rent"
(F) In the event then prior m or during the Tema hereof any form or forms of gaming
or gambling in addition to surfor instead of slot machine gaming as auforisad under currently
a„.a,s.ixvuoasase.m Page 8 of 46
existing law Ware legally enabled in the State of Maine (including but not limited to any "game
of chance;' "game of skill;' or "roulette" such as Nose turns me defined in 17 M.R.S.A.
§ 330(2), video poker (oder Nan forms of video poker already permitted as of the date hereof
through existing legislation governing slot machine gaming), keno, or casino -style gaming (any
or all of the fomgoiug, without Fnaitation, being referred t0 herein as "Other Gaming"), den, as
a condition precedent to such forms of Other Gaming being operated or allowed on the Premises,
the Lessor and Less" shall establish through good faith negotiation the Revenue Sharing
applicable to revmues generated from any future of Other Gaming operated on the Premises.
(G) Lessor shall have the right from fine te time, upon written demand to Lessee, to
review and audit the books, accounts, and reports of Lessee for the purpose of verifyiug
compliance with the provisions of this Muds IV. Any such audit shall be upon reasonable
advance notice and shag be conducted in a commercially reasonable fashion so as to minimize
ifemption to Lessee's business operafoun.
ARTICLE V - USE, OCCUPANCY AND ALTERATIONS TO PREMISES
1. Subjem to Saurian 2(F)of Maria IV, Lessee shall have the right to use and o"ury the
Riverside Block portion of the Premises for any lawful business purpose including, without
limitation, the purposes of operation of the Permanrnt Gaming Facility. Except as herein
expressly provided to the contrary in the provisions of subsection 4 of Article X 111 hereof,
ew subject to the occurrence of events of Force Majeure, as that term is defined below, Lessee
shall, 9 all times during the Trans, operate a mhdmum of 1,000 Gaming Machines a the
Permanent Gaming Facility. Lessee shall operate its businesses conducted at the Premises in a
reasonably businesslike, careful, clean and reasonably safe reactor.
1 The permitted use of the Limited Portion of Bass Park portion of the Premises will be
for live harass mcing, and uses directly related to the forgoing activities, including simulcasting
and concerts; and, as to the Parking Area, parking for Permanent Gaming Facility patrons and
employees as is more fully described in this Lease. The use by Lessee of the Limited Portion of
Bass Park portion of the Premises is expressly limited by and subject to the reminM rights and
easements of Lessor set out elsewhere in file Lease, including without limit Article XXXII,
Pasuge and Easemrnt
3. Lessor, as landlord (but not in limitation of the other powers of lessor to inspect, enter
upon or otherwise investigate the premises), through its agents, shall have at all reasonable times
the right, upon reasonable prior written notification In the Lessee, to go on and inspect the
premises, any buildings, structures or improvements thereon, with, in the case of the Riverside
Block portion of the Premises, an authorized adimsernative of the Lessee, and the right of access
to utility systems located on the Limited Portion of Bess Park portion of the Premises for the
purposes of maintenance, repair, correction, in mirecfo0. For purposes of this paragraph,
"reasonable noGfrcatio t" shall include any actual Purification to the Less" or its agent not less
than one business day prior to the date of arpoefion (except in case of emergencies, when no
prior pori" is necessary). "Reasonable times" shall mean any rime during Lessee's regular
business hams. Any such inspections shall be conducted in a mower which does not interfere
rygcrvu' e.�µYip959]%a
Page 9ot 46
with the privacy or confidentiality of the Lessee at its customers and shall conform to Maine
laws governing rite gaming operations operated by Lessee.
4. Consistent with the terms of this Amended and Restated Final Lease, Lessee shall
exercise sound business judgmwS to the operation of its businesses at the Premises and consider
the Lessor's recommendations and advice (although no obligation to accept usy
recommendations or advice is intended or implied hereby). The Lessor's and Lessee's specific
responsibilities shall include, though not necessarily be limited to, the following:
a Neighborhood P bl' R 1 and promation. Lessee is mindful of the impact
of the operation of harness racing OTB operations, and Gaming Machine
activities on the immediate neighborhood and sumarming area. Lessee agrees to
adhere to the following guidelines:
i. No live race shall start after 11:00 pm. unless, due to an unforescen emergency
such as, but Out limited W. loss of power, loss of computer support to ran the
mound area, facility accident, or loss of ambulerece support, mass are delayed. In
such cimwnstances, Lessee shall make every effort to accelerate post times and to
finish operating at a reasonable boar, in no case later thus 12 midnight.
I Lessee, in conducting Lessee's activities hereunder, shall take necessary steps
to prevent generation of excessive noise. For this purpose, excessive noise shall
Mom noise of a volume, pitch or intensity likely to unreasonably disturb the peace
of ordinary occupwts of residential properties surrounding the Bass Park
Complex or the Riverside Block for a material period of time. Lessee shall notify
the Lessor of coy event that can be reasonably anticipated to disturb the peace of
ordinary occupmas of residential properties srnrowding the Bass Park Complex
or the Riverside Block and andl cooperate with Lessor to minimiu the
disturbanw and/or the impact thereof.
ui. To the best of its ability, Lessee shall =sure that horse trailers and traffic
resulting from its operations will comply with all applicable rules and regulations.
b. Past Control . Lessee shall be responsible for all necessary pest control services.
Lessee and M to the Limited Portion of Bass Park portion of the Premises, "a
Lessor may mutually agree to a proration of armual pest control services costs.
c. Snow Removal. The Lessor sball he responsible for snow removal services at the
parking lots (other Oran Non lots or limited -access portions of has as are used
exclusively by Lessee) and roads located on the Limited Portion of Bass Park
portion of the Ptetaises; Lessee shall otherwise be responsible to and agrees u
perform all other snow and ice removal efforts necessary to its operations A the
Premises. City shall in me event be obliged to remove snow and ice from any
other area of the Premises.
d. Trash Removal. Lessee shell be responsible for all waste and hash removal
���� Page 10 of 46
services, including removal and disposal of manure Provided however that the
Lessor in its use of the Limited Portion of Bass Park as set forth in Article =11,
Passage and Easement, shell be responsible to ensure the removal of crash
generated in connection with Lessor's or its licensees' or permitted users' use of
the Limited Portion of Bass Park as provided elsewhere herein.
e. Lio,sawand pemdts. Lessee shall obtain and maintain all licenses and permits
necessary for Lessee Or massage and operate its businesses.
f F' d Asset Inveatorv. Lessee has recon custody but not ownership of the
machinery, equipment, f crssishings end fixtures located at and used in connection
with bemess racing operations at the Limited Portion of Bass Park portion of the
Premises at the commencement of the Term. During their period of use, Lessee
shall assume all maintenance and repair costs on such machinery, equipment,
fumishings and fixtures.
g. Gress Cuttine. The Lessor will be responsible for all plass cutting throughout the
Limited Portion of Bass Park portion of the Premises.
For the purposes of this Lease, "force majeare" shall mean and include all factors,
circumstances, transactions, occurrences and other serious beyond the direct control of the
Lessee, haludirus without limiting the genaably of the foregoing, labor disputes, civil
disturbance, war, war -like operations, invasions, rebellion, hostilities, military or usurped power,
sabotage, fires or other casualty, or acts of God that have the effect Of rendering practically
unavailable materials or labor or other resources necessary to operate the Permanent Gaming
Facility. "Force Manicure" shall not include a Law Change for which a separate remedy E
provided under Article X=ll below.
to no event shall Lessor have any risk, responsibility or obligations for maintenance or
repair of the Riverside Block portion of the Premises and any improvements or structures
Hereon
ARTICLE VI - LIABILITY AND PROPERTY DAMAGE INSURANCE
1. The Lessee shall provide and maintain the following insurance during the Term:
(a) In connection with the employment of its employees, Lessee shall pay all
applicable seciat security, unemployment, workers'compensation, or other employment taxes or
contributions of insurance and shall comply with all federal and state laws and regulations
totaling to employment generally and to wages, social security, unemployment insurance and
workers' compensation in particular. Lessee shall indemnify and hold harmless the Lessor from
all costs, expenses claims or damages resulting from any failure of Lessee to comply with these
twimmrnWs.
(b) Lessee shall procure and maintain comprehensive general liability and automobile
liability insurance on behalf of itself and the Lessor (as their respective interests nay appear)
� mssafnss%796s
Page 11 of 46
against any damage, loss m liability or claims alleged to have arisen from the use or occupancy
by Lessor of the premises and such other coverages as are described more fully below. With.
respect to the required insurance, Ne Lessor shall be named as an additional Gamed; be
provided with a waiver of subrogation in favor of the Lessor, and shall be provided with thirty
(30) days prior notice of cancellation or material change; and shall be provided, through the
Office of Use City Solicitor, with certificates of insurance evidencing the above required
immunce. The cost of such insurance shall be paid directly by Lessee. The amounts of such
insurance shall be adjusted upwards from time to time to levels that are consistent with coverage
levels generally established for similarly allowed gaming properties of similar ounce, size and
stype. The below awards of insurance are considered normal and customary, sa of Ne data of
this Lease.
(c) The amounts of such coverage shall be initially no less tlsan az follows
True
L Workers'Compensation
Statutory Employers
Liability
2. Comprehensive Public
Liability to include but
Our be limited to the
following:
a) premises/operations
b) indepeadeatcontmctor
c) personal injury coverage
d) product/complumd Operators
e) communist liability
3. Comprehensive Amomobile
Liability coverage to include
coverage for:
AmOmn
S40 Million combined single limit
$40 Million combined single limit .
with additional umbrella
policy for not less than
$40 Million
$40 Million combined single limit
a) owned/rented automobiles
b) nounwned automobiles
c) hired cars
4. Standard Form Replacement
Value All Risk Insurance Policy
5. Commercial Business $50 Million
Interruption
rymvxa1M04e97983
Page 12 of 46
Should Lessee desire as to the harness racing facility (consisting of a race track,
gnaturand and sables located on the Limited Portion of Bass Park portion of the
Premises), Lessor will entertain a request that All Risk Insurance be provided by
the Lessor and shall be Paid, on an agreed pro -tam basis, by Lessee for those
Periods in which Lessee hes the right to occupy harbor occupies the Limited
Portion of Bass Park portion of the Premises. In the event of loss or damage to
my portion of the Premises (other than to new smartums wnstramod and owned
by the Lessee) due in fire or other casualty occurring during Lessee's use or
occupancy, or occurring after Lessee's use or occupancy as a result of the
negligence of Lessee or Lessee's agents, servants, contractors, or employees,
Lessee shall to the extent any such loss was not caused by the negligence and/or
Intentional misconduct of the Lessor, its agents, servants, contractors, or
employees, reimburse to the Lessor my portion of the Lessons cost of replacing
or repairing the particular facilities concerned Oat is not reimbursed by applicable
fne or all risk insurance. In the event that the Permanent Gaming Facility Portion
of the Premises shall be destroyed by fne, other easoxlty, for my event of force
majeme] during the term hereof, Lessee shall continue to pay the greater of (i)
actual ]revenue Sharing due to Lessor or (ii) Revenue Sharing Floor Amount, fa
any period the operations of the Permanent Gaming Facility are not open to the
public and at fall capacity as aresult offire or other casualty.
e. Bach insurance policy procured by Lessee shall affirmatively orae that it will not
be invalidated because the insured waived its rights of recovery against any Party
prior to the occurrence of a loss.
ARTICLE VH -HAZARDOUS WASTE
1. Lessee hereby covenants and agrees that it shall not, during the Term permanently
place, cause to be placed, deposit or discharge my hazardous waste upon the demised Premises,
or upon my other portion of Lessor's property, and further expressly agrees that it shall
indemnify Lessor from any and all mots, expense or liability, of whatever kind or mature,
evaluating, incurred by the Lessor in detecting, removing, treating, disposing of or otherwise
responding as my bmaudous waste placed or deposited in violation of this paragraph.
2. Lessee hereby covemna and agrees that it shall not. during the Term violate any
local, state or Federal regulation, ordinance or statute perfuming ro hassrdcus waste orhazhrdous
material and further expressly agrees that it shall indemnify Lessor from my and all costs,
expense or liability, of whatever kind in name, incurred by the Lesser for any such violation of
dnispmagraph
3. Such costs shall be deemed to include, without limitation, Lessons costs of defending
my suit filed by any person, entity, agency, or goveammtal authority; paying any fines imposed
in comectioa with such suit; paying any judgments or otherwise settling my damage claims;
complying with my order by a court of competent jurisdiction dvecting the Lessor to take
remedial action with respect to such Oxide; and of all associated attorney's fees and costs.
�jamtsarsa3 Page 13 of 46
4. For the purposes of this Article, the term "hazardous waste' shall be deemed to
include every substance now or hereafter designated as a hazardous waste under any provision of
State or Federal law. Lessee's obligations under this Article shall be deemed to survive the
expiration or termination of this Lease.
ARTICLE VIII - INDEMNITY
1, General Indemnification - Lessee shall defend, indemnify, and hold Lessor, and its
inhabitants, officers, employees and agents completely harmless from and against any and all
liabilities losses, suits, claims, judgments, tines or demands raising by reason of injury or death
of any person or damage to any property, including all reasonable costs for investigation and
defense thereof (including but not limited to ammeys' fees, court costs, and expert witness fees),
of any name whatsoever arumg out of or incident to the use, occupancy, conduct, or
management of the Premises or the acts or omissions of Lessee's ofrcem, agents, employees,
contractus subcontractors licensees, or invitees, uniess such injury, death, or damage is caused
by the negligence and/or intentional misconduct of the Lasser and/or its agents or employees
utilizing the Premises and/or portions thereof by license as herein provided. The Lessee shall
give to Lessor reasonable notice of any such claims or mfionn The Lessee shall also engage
counsel reasonably meepmble to Lessor in carrying out its obligations under this Article.
2. Lessee's Waiver of Workers' Compensation Immunity - The Lessee hereby expressly
agrees that it will defea4 indemnify and hold the Lessor, its inhabitants, officers, employees and
agents completely harmless from any and all claims made or asserted by the Lessee's agents,
servants or employees arising our of the Lessee's activities under this Amended and Restated
Final Lease; provided however that Lessee's aforesaid indemnity and hold harmless agreement
shall not be applicable to any liability based upon the neghgemcs and/or intentional misconduct
of the Lessor and/or others m1bang the Premises and/or portions thereof by licenses from Lessor
herein provided. For this purpose, the Lessee hereby expressly waives any and all immunity it
may have under the Maine Workers Compensation Act is regard to such claims made or asserted
by the Lessee's agents, servants or employees. Subject to the limitations hereinabove set forth,
the indemnification provided under this paragraph shall extend W and include any and all cents
incurred by the Lessm W answer, invempte, defend and settle all such claims, including but not
limited to the Lessor's costs for mbmays fees, expert and other witness fees, the con of
investigators, and payment in full of any and all judgmeans rendered in favor of the Lessee's
agents, servants or employees against the Lessor in regard to claims made or asserted by such
agents, servants, or employees.
3. The Lessor shall indemnify, defend, and hold harmless the Lessee from and against
all claims and actions, and all expenses incidental to such claims or actions based upon or
arising out of damage to property or injuries W persons or other continue acts caused or
contributed to by the Lessor or anyone acting under its direction or control or in its behalf in the
course of the Lessor's activities under this Amended and Restated Final Lease and/or others
utilizing the Premises and/or bunions shared pursuant to the rights reserved by the Lessor,
provided that Lessor's aforesaid indemnity and hold harudess agreement shall not be applicable
W any liability based upon the negligence and/or intentional misconduct of the Lessee Or anyone
r« gua, xwoasensaa page 14 of 46
acting under its direction or Control or in its behalf in the comae of the Lessee's activities under
this Arreaded and Restated Final Lease.
4. The Lessor hereby expressly agrees that it will defend indemnify and hold the Lessee
harmless from any and all claims made or assured by Lessors agents, servants or employees
mining out of Lessor's activities Coder this Amended and Restated Final Lease; pro
however that Lessor's aforesaid indemnity and hold harmless agreemem shall not be applicable
to any liability based upon the negligence and/or intentional misconduct of the Lessee or anyone
acting under its direction or control or in its behalf in the course of the Lessee's activities Order
this Lease. For this purpose, Lessor hereby expressly waives any and all immunity it may have
=der Maine's Workers' Compensation Act in regard to such claims made or asserted by
Lessor's agents, servants, or employees subject w the limitations herei=bove set forth The
indemnification provided under this paragraph shall emend u, and include my and all costs
incurred by the Less,, in answer, investigazq defend and settle all such claims, including but not
limited no the Lessee's costs for attmcey fees, expert and other witness fees, the Can of
investigators, and payment m full of any and all judgments rendered in favor of Lessor's agents,
servants or employees against the Lessee in regard to claims time or asserted by such agents,
screams, or employees.
5. The indemnification and hold harmless provisions of the Lessor contained in this
Amended and Restated Final Lease, notwithstanding anything m the contrary in this Amended
and Res=ed Final Lease, shall not be considered to, and shell not, expand or create liability on
the pan ofthe Lessor in any person (including the persons so indemnified) for claims from which
Lessor is released, exempted and/or protected by Maine Law, including without limit, the Maine
Tart Claims Act, m it a currently in effect or is in the forme from time to time modified or
amended. Any and all obligations and/or exposure of the Lessor under any indemnification
obligations remained berein, and any damages related thereto, are subject to the foregoing
limitations, and are further subject to, limited by, and shall not exceed the greater of (i) the legal
limits of its liability or lid applicable hsumnce policy coverage limits under my insurance
policy the municipality is maintaining (or required to malmein) at rhe time of such claim.
b(a) Notwithstanding anything herein to the contrary, Lessee agrees to look solely to
Lessorere
Lessor's interest in land and structures comprising the Premises an the same is valued fm real
estate rex purposes for recovery of any judgment from Lessor, it being agreed rim Lessor is not
and shall not be personally' liable for any such judgment The provision contained in the
foregoing sentence shall not limit any right that Less,, might otherwise bave to obtain an
injunctive relief against Lessor or obtain recovery against Lessors insurers, if any, or my other
action not involving the liability of Lessor. Under no circumstances shall Lessor ever be liable
for indirect or consequential damages.
(b) The provisions contained m subsection (a) above shall not limit any right that
Lesser might otherwise have to obtain an injunctive relief against Lessor Or obtain recovery
against Lessor's insurers, if any, or my other action not involving the liability of Lessor.
(c) The Lessor shall take out and maintain during the Term, comprehensi c genee �
liability insurance in an amount cot less than $5 million in the aggregate, creatural
aeey oilw[459798]
Page 15 of 45
associated with its ownership and opermon of the Premises and any other activities or
occurrences conducted on or in connection with the Premises only in connection with liability to
Lessee through subsections 3 - 5 of [lila Article VIR. Upon request by the Lessee, the Lessor
shall provide Lessee with a certificate evidencing such insurance is Or full force and effect.
ARTICLE IX- DAMAGE BY FIRE OR OTHER CASUALTY
If during the Term hereof the buildings aM improvements on the Premises shall be
destroyed or damaged in whole or in part by fire or the elements or by my other cause
whatsoever, than, Lessee (if the affected Prances are not located at Bass Park) or Lessor (if the
affected Processes are all or a portion of Bass Park) shall cause the same to be repaired, replaced
or rebuilt as nearly as practicable to the condition existing just prior. to such damage or
deamscion, within a period of time which, Order all prevailing circumstances, shall be
reasonable. Lessee or Lessor, as the case may be, mail repair, replace, or rebuild the affected
portion of the Premises with due diligence. In no event shall the repair or rebuilding obligation
of Lessor or Lessee be in excess of huc ansa proceeds received as a result of the casualty
causing the damage or destruction.
Prior to the commencement of any work necessary to repair, replace or rebuild the
buildings and other improvements, the rebuilding party shall furnish the other with complete
pians and specifications, if any, for such repairing, replacing and rebuilding, which plans and
specifications shah meet with the reasonable approval of the other, and with the approval of any
govemmenml board, bureau or body then exercising jurisdiction with regard to such work.
Lessor stall not be entitled to nor claim rights in any Proceeds from any casualty insurance
policies carried for any buildings and improvements located on the Riverside Block portion of
the Premises which are payable as a result of such damage or. destruction. Lessee or Lessor, as
the case may be, shall cause such repairs, replacement or rebuilding to be performed in
accordance with the plans and specifications therefor and my applicable law, malate, ordinance,
regulation or requirement of the federal, state or municipal governments. During the course of
such repturing, replacing and rebuilding, Lessee shall carry for the protection of Lessor, such
liability insurance in such amomts as may hour time to time be reasonably required by Lessor.
'Lessee shall not be entitled to any abatement or reduction in Rent during the period of such
restoration or rebuilding. In the event flat the Permanent Gaming Facility portion of the
Premces shall be destroyed by fire or other casualty during the term hereof, Lessee shall
momme to pay the greater of (i) actual Revenue Sharing, or (ii) Revenue Sharing Floor Amount
as provided in Article V£ Section 1(d) hermf. -
ARTICLE X- RULES, REGULATIONS AND LAWS
The Lessee hereby agrees that Lessee and all personnel employed by the Lessee shall
comply in good faith with all municipal ordinances, and all Sante and Federal rules, regulations,
or laws.
ARTICLE XI -TAXES
L Subject to the provisions of Paragraph 2 of Article XI hereof, the Lessee agrees to pay,
when due, my and all taxes and/or assessments, fees or charges of my kind whatsoever, as may
rygw,ay,,pMeOsaraa.a Page 16 of 46
be imposed during the term hereof, or any extension of the term of this Lease, by any
governmental authority upon the demised premises, including Lessee's leasehold interest therein,
any buildings, structures, and improvementsre
thereon, and any other taxable real or personal
Property interests or any taxable personal property, located thereat (irwluding Gaming Machines).
It is expressly agreed Nat such taxes and assessments stall include all amounts levied as real
estate and personal property taxes upon she demised premises and associated personal property
by the Leesor acting in its governmental capacity. Lessee turner hereby waives any and all
rights to seek or request privileges of exemption from property taxation on the Premises, or
Lessee's leasehold interest therein, or on tiny buildings, shad ens, or improvements thereon, or
on my taxable personal property located thereat arising due to public ownership of the Premises
or such property by she City of Bangor; provided, however, nothing herein shall in any way
Prohibit the Lessee from exercising its rights ander Ne law to contest the valuation of such
property interests for property tax purposes, or the charges or fees related to the assessment of
taxes on such property, or the exercise by Lessee of any other legal rights re which Lessee is
entitled under applicable law with respect x property caves generally.
2. anything in Pamgreph 1 of Article M lasmoftn the contrary notwithstanding Lessee's
obligation to pay Potential property and real estate taxa under the Amended and Restated Final
Lease shall be determined in accordance with Maine law. Should the Lessee disagree with the
current assessed value established by the City Assessor, from time to time, Lessee shall have the
same rights to challenge and appeal any such assessments) as applicable to privately owned
property; and for such purposes the Lessee shall be treated in the same marina w any other
owner of private Property in the City. Lessee shall at all times be responsible for 100% of any
and all personal property taxes applicable an personal property owned by or in possession of
Lessee and located on the Premisesin no event shall fee City be considered in default hereof, or
otherwise be liable for any action or position taken by the City assessor that may he inconsistent
with the terms of this Final Lease; provided, however, that no schen by the City assessor shall in
any way alter, amend or limit the Lessee's rights hereunder, which shall be enforceable as an
agreement between landlord and cedant separate from any action or position taken by the City
assessor. A non-binding estimate of current taxes is included at EXHBTT C attached hereto for
reference only. In the event NaS during the term bereof, Lessee shall roceive a determination
from the City Assessor or from a court of competent jwisdumun that all or a portion of the
Premises is exempt from taxation, then the Rent payable hereunder shall be automatically
increases by the amount of money otherwise payable as real estate taxes in the absence of such
datermimtion as reasonably calculated by the City (which calculation shall be subject to
Lessee's rights to dispute the valuation of the Premises and Lessee's Personal Property, and the
exercise of any other legal rights and remedies related to property taxation on the same basis as
though the Premises were privately owned property). Failure x pay such increase in Rent
attributable x this section shall mnstitme a breach of and default under this Lease by Lessee on
the same basis as any other failure to nuke timely payments hereunder.
For purposes of calculating Lessee's obligation to pay real property and personal property
taxes relax[ to the Limited Portion of Bus Pack, Lesser and Lessee hereby agree that EXHBR'
C reflects the shared use of that portion of the Premises between Lester add Lessee, and that
Lessee stall pay the real property taxes levied on that portion of the Premises based upon One
emma+.a(wwsenaa Page 17 of t6
percentages set forth in EXHIBIT C.
ARTICLE XII --NONDISCRIMINATION
Lessee for itself, its personal representatives, successors in interest and assigns, sand as
part of the considerations hereof, does hereby covenant and agree as a covenant rwning with the
land that (1) no person or group of persons shall be excluded on the grounds of race, color, or
national origin Gom participation in, denied the benefits of, or be otherwise subjected to
discrimination in the use or occupancy of said demised Premises and (2) in the termination of all
improvements, buildings, structures, on, over or under such land and the mmi'shi% of services
thereon, no person or group of persons shall be excluded on the grounds of race, color, or
national origin from participation in, denied the berrefhts of, or be otherwise subjected to
unlawful discrimination.
ARTICLE XIII - COVENANTS OF QUIET ENJOYMENT
The Lessee, subject to payment of the Renu, and observing, keeping and performing all
the terms and provisions of the Amended and Restated Final Lease on its part to be observed,
kept and performed, shall lawfully, peaceably and quietly have, hold, occupy and enjoy the
demised Premises during the Term hereof without hindrance or rejection by the Lesem or any
other persons, subject to the terms and limitations of this Uses and subject to the msemats end
other matters of remrd affecting the Premises.
ARTICLE XIV - LIENS
The Lessor and the Lessee agree that each will promptly discharge (either by payment or
by filing of the necessary bond or otherwise) any mechanlcs', mentrialmen's or other Gens against
the demised Premises, any buildings, shuctmes or improvements thereon, which Gens may arise
am of any payment due for labor, services, materials, supplies or equipment which may have
been burnished to or for the Lessor orthe Lessee, respectively.
ARTICLE XV - TITLE TO BUILDINGS, STRUCTURES, AND IMPROVEMENTS
Tide to the buildings, structures and improvements conormand on the Riverside Black
porton of the Premises by the Lessee either prior to or during the Term (collectively the
w eoaot Improvements') shall be in the Lessm, and during such Term, the Lesser stall have
the right, at he sale expense, to demolish and remove, improve or alter any mW all Tenant
Improvements and other personal property erected or located on the demised Premises, provided
haat such right shall not be ransomed to permit Lessee to termihm[e operations of the Permanent
Getting Facility at the Premises at any time other than as is specifically set ora elsewhere in dn"
Luse.
All such Tenant improvements shall conform to the Development Agreement as
amended. Subject to the provisions of Article XVI below, Lessen shall retain rifle to all
essswlawnaaerea> page 18 of 46
buildings, shudwes, improvements, facilities and installations currently located at Bass Park,
including the grandstand and tack and Parking Area.
ARTICLE XVI. REMOVAL OF PROPERTY
1. Upon the temunailon or capitation of this Amended and Restated Final Lease, Lessee
shall have the right to remove from the Limited Portion of Bass Park portion of the Premises all
of its personal property and any other installed, Storms or whet property ins alle l or built by
Lessee. Any of Lessee's Property not removedfrom the Limited Portion of Bass Park Portion of
the Premises within sixty (60) days from temdnation or expiration of this Lease may at Ute
election of Lessor become the property, of the Lessor to be disposed of in such a way as the
Lessor may deem fit. Any damage to the land or the buildings of Lessor caused by Lessee's
removal of any of its property shall be promptly repaired by Lessee such that the land or
buildings of Lessor shall be resumed as nearly as possible to its condition at the commencement
of the Arnended and Restated Final Lease, ordinary wear and tear excepted
2. In he event Lessee shall fail on remove any such Property from the Limited Portion of
Bass Park portion of the Premises within sixty (60) days from the data of termination or final
expiration of this Lease, Lessor shall, subject an the terms and conditions ofany written
agreement executed subsequent in the date hereof by the Lessor and Lessee with respect b say
such property, be entitled to recover from the Lessee Lessees reasonable costs incurred in
removing or disposing of such property. In such event, there shall be deducted from Lessor's
costs the fain value actually real'issd by the Lessor from the sale, use or other disposifion of the
property concerned.
3. The Provisions of Sections 1 and 2 above shall not apply to any portion of the
Premises ren nveyed to Lessee at the expiration or earlier termination of this Amended and
Restated Final Lease. The foregoing provisions shall swvive the expiration or termination of
this Lease.
ARTICLE XVII- SURRENDER OF POSSESSION
Subject an the provisions contained in Article XVI, the Lessee shall, upon the emotional
of this Amended and Restated Final Lease or expiration of the Term, suneader the quiet and
peaceable possession of the Premises, excepting the portion of the Premises reconveyed to
Lessee at the expiration or earlier termination of this Amended and Restated Final Lease.
ARTICLE XVOI-TERMINATION
(a) If.
() Lessee shall fail to core any default in the Performance of any of its non-moaetary
covenaoss, agreements or obligations hereunder within thirty (30) days of written
notice of default from Lessor plus, so long as Lessee has diligently comments] cure
within said thirty (30) days and bas been unable to complete same within said dirty
�agwaoW798a Page 19 of 46
(30) days, such oddifirroal time as is reasonably necessary to cure with commercially
reasonable efforts (flus subsection () shall not apply on defaults or breathes
specifically addressed elsewhere in this Article); or
(ii) Lessee about fail to cme any monetary default is g., faiture m pay RNuired
payments, Rent Revenue Sharing, Section 1036(2xn Tax or other charges
bersunder) or my default in its obligation to maintain or provide insurance within
fif cen (15) business days of written notice thereof, or
(iii) Lessee shall make any assignment for the benefit of creditors or shall apply for or
corned, m the m ofntmmt of a receiver for themselves or any of their property; or
Lessee sball be adjudged an involuntary bantaup4 or a decree or order for
reorgamustion under the federal bardwptcy laws as now or hereafter amended, or
under the laws of any state, shall be entered against Lessee, and any such decree of
judgment ac order shall not have been vacated or set aside witltin sixty (60) days
from the date of the entry or granting thereof; or Lessee's threshold interest
hereunder shell be tekrn on execution; or
(iv) Lessee fails to receive timely alive racing track license (including the sargmnrat
of racing days) issued by the Commission prior to the commencement of any
annual hamew racing season during the From hereof; or
(v) Lessee abandons or otherwise ceases its operation of a least 1000 framing
Machines for a cumulative mal period of more thea thirty (30) days during the
Term hereof following commencement of mrnowdel operation of Gaming
Machines at the Permanent Gaming Facility portion of the Premises for reasons
(A) not excusable due to Force Majeure events or circumstances ha defined
herein) or (B) not otherwise allowM or provided for in subsection 4 of Article
)(XX➢I hereof, or
(vi) Except as otherwise allowed or provided for in Article X 111, Section 4, Lessee
fails m receive a renewal of, or otherwise loses, the gaming Emus comm d for
Lessee m legally operate Gaming Machines a the Permanent Grading Facility.
Then, subject to the specific rights of lenders to Lessee under Article XXI hereof,
(notwithstanding any forbearance with respect to any fanner breach of this Amended and
Restated Final Lease or waiver of the benefit hereof or consent in any former instance) in any of
such cases Lessor may lawfully, immediately and at my time thereafter, and without further
notice or denand, and without prejudice to any other remedies, enter into and upon the Prentism
or my pan thereof, in the name of the whole, or mail a notice of termination addressed to Lessee
at the Premises, and upon such entry m meiling flus Amended and Restated Final Lease shall
immediately terrninate.
In addition to the foregoing and not in lieu of any of Lessm's rights and remedies
hemuader or at law or in acuity, if a petition is filed by Lessee for relief under Chapter 11 of
aas..�yvmasmaea Page 20 of 46
Title 11 of the United States Code, or Or reorganization or armngement under any provision of
the mardcruptcy Code as then in more and effect, or any involuntary petition under any provision
of the Bankruptcy Code is filed against Lessee and is not dismissed within sixty (60) days
thereafter, than or either of such cases this Amended and Restated Final Lease shall at the option
of Lessor continuum upon notice oftecmwafion to Lessee.
(b) Further, in rase of my terndnavon of this Amended and Restated Final Lease order
this Section, and natwithstauding any entry or re-entry by Lessor, whether by summary
proceedings, termination, or otherwise, Lessee, as of the date of such termination, (i) shall
immediately pay to Lessor as damages all amounts due W Lesser prior to and including the date
of termination; (ii) shall he liable for and pay b Lessor the mt've unpaid rental said all other
balances due under this Amended and Restated Final Lease for the remainder of the then -
effective Tons, the parties agreeing had a to this specific category of rental damages under this
amsemion (ii) such damages will be difficult to dmeorine with certainty and as such the parties
have agreed that in the event of such reraination by Lessor, the amount of damages due under
this subsection (ii) shall be liquidated az the fallowing amomre the net present value of (t) the
number of years (including any fractional portion of a partial year) remaining in the then -
effective Team of the Lease after the date of termination multiplied by (2) the Revenue Shamir
Floor Among set forth herein applying a discount rate equal to the prime Rate then in effect as
reported re the Wall Sheet journal under the heading "Money Rates — Prime Rale." (Nothing
herein shall be demand to Emit Lessee's obligations that azure or continue after termination,
including without limitation any obligations as to holdover rent or similar obligations; and (iii)
without duplication of amounts paid Order clauses (i) and (ii) above, shall additionally be liable
for and pay to Lessor, as damages for breach of this Amended suit Restated Final Lease, any
other mmtlaz amounts and categories of damages that Lessor is not expressly prohibited by law
to obtain m collect from Lessee. In addition to the foregoing and notwithstanding any other
damages or payments due from Lessee under this Amended and Restated Final Lease or at law or
in equity, Lessee agrees that, in the event of its breach of this Amended and Restated FinalLease, it shall be liable to Lessor fm Lessoi s reasonable allomeys' fees and court costs related
to in arming out of Lessee's breach or default of its obligations under this Amended and Restated
Final Lease, in the event of ourroomen and otherwise (including without limitation any
attorneys' fees incurred to mmElm or intervene in any baulmrptcy proceeding involving Lessee).
(c) Nothing herein contained shall limit re prejudice the right of Lessor to prove for and
obtain in proceedings for banlaupmy or insolvency by reason of the termination, an amoOrt equal to
the ma imum allowed by any ststute or rate of law in effect a the time when the damages are to he
proved
(d) Notwithstanding anything in this Amended and Restated Final Lease to the
ammary, and in addition to and not in lieu of anything specifically set forth herein but without
duplication of amounts paid as damages hereunder, Lessor shall be entitled re all remedies available
to Lesser at law and equity, including, without lischadon, the remedy of forcible entry and detainer.
Lessee, for itselg and its successors, and assigns hereby knowingly, willingly, and voluntarily
gives any and all rights such party may have to a trial by jury in any forcible catty and
detainer action and my proceeding to coped any money or payments due from Lessee under
this Amended and Restated Final Lease brought by L sor, or Lessor's successors and/err
o "i(NJ45e799J Page 21 of 46
assigns.
(e) A default by Lessee under the Development Agreement and/or the Initial Lease
shall be a default heremder.
Nothing set forth in this odcle XVIII shall limit Lesse rights
to r under
rticle
such
III, Section 5 hereof Notwithstanding anything else herein contrary, how
reconveyance obligation shall but diminish or negatively affect any claims her damages by
Lessor nor shall it limit remedies possessed by Lessor related to Lessee's breach of this Amended
and Restated Final Lease or my claim by Lessor affecting the Premises, including but not limited
to tax lien claims. ,
ARTICLE XIX -ATTORNEYS' FEES
The Lessee shall remotions the Lessor for reasonable attorneys' fees incurred by Lessor
in the event the Lessor employs an attorney to collect any rents out hereunder or otherwise
enforce its rights hereunder, and the Lessee is in material breach of any of the terms, conditions
m covenants on the part of the Lessee herein contained, if, but only if, Lessee faits to promptly
correct the violation of any tern, condition or macron after receipt of notice that it is in
violation thereof. The tens "outimmoble attorneys' fees" as used in the preceding sentence
shall include the reasonable allocated cost of services provided by Lessor's solicitor or assistant
solicitor. .
ARTICLE XX- ASSIGNMENT, SALE AND SUBLETTING
1. Assimabitity. O Lessce aball not assign m sublease its rights hereunder or under the
Original Documents without the prim mines consent of the Lessor, which consent shall not be
unreesonebly withheld or delayed. For purposes of dila section, my sale, transfer or other
disposition of fifty one percent (51%) or some of the currently outstanding common stock of the
Lessee, whether effected through a sale, merger or other consolidation or reorganization, W my
party nes owned or controlled by Penn National Gaming Inc. ("PNG"), whether effected through
a single transaction or through a series of related bamortions, shall be deemed an assignment
requiring the Lessor's consent. The Lessor may not withhold is commit to an assignment in
sublease W any party approved by the State of Maine Gambling Control Board pusuarm to Tide 8,
section 1011 of Ne Mame Revised Stances Annotated and licensed W conduct the wotemplaled
commercial operatims at the Permanent Gaming Facility. incepted from this section (a) is any
existing contactual mmndbnms by Lessee m PNG under the agreements governing the
acquisition of the Lessee from PNG's predecessor in interest or is related entities.
(b) The Lessor's execution of this Amended and Restated Final Lease shall not be
constmnd W he a waives of my rights the Lessor bas order current or future laws W participate
and/or intervene in any burning or Imbibing process before such Board or any oma boards or
bodies with licensing or purriming authority related W the subject matter of this Amended and
Resorted Finial Lease.
anera<page 22 of 46
(c) At the effective date of the assignment or subletting, and a the time witrn Lesser
requests Lessees written consent thereto, this Amended and Restated Final Lease must be in full
force and effect, without default on the pan of Lessee or any Connector.
(d) Any assignment of this Amended and Restated Final Lease shall transfer to the
assignee all of Lessees right, title, intent and obligations N this Amended and Restated Final
Lease and ail of Lessee's estate or interest in the Premises.
(e) The proposed assignee or subtenant shell be of the same or better fnancial capacity as
the Lessee and I% Ownership, and shall otherwise be of suitable fitness and character to conduct the
intended operations at the premises. An assignee or subrenarn shall be deemed W have fmmcisl
capacity and be of suitable fitness and cbarador W conduct the intended operations at the Premises
if it has received in final and mappealable farm all necessary state licenses and permits (including
without limitation the Charring Permits).
(f) Except ss provided elsewhere herein, following a ,,du,d assipfmmt, the Lessee shall
no longer have any liability or responsibility for the performance of all Lessee obligations under
this Amended and Restated Final Lease.
(g) Should Lessee desire W assign this Amended and Restated Final Lease or sublease my
portion of its interest in the Premises, Lessee shall give Lessor wrinen notice of is immtion W do
so at least sixty (60) days m more before the effective date of such proposed assigmverG or
subletting.
(h) Fach assignment and sublease, W the extent of the Premiss subleased, shall be
accomplished by an instrument in writing wherein the assignee shall agree in writing for the
benefit of Lessor W assume and be bound by, and W perform the terms, devenmW and conditions
of this Amended and Restated Final Lease to he done, kept and performed by Lessee. Said
hsttvment shall otherwise be im form and substance acceptable W Lessor.
ARTICLE XXI - FINANCING AFFECTING DEMISED PREMISES
(a) Lessee may from time W time without the consent of Lessor hypothecate,
mortgage or pledge Lessee's leasehold interest and estate and Lessee's rights hereunder to an
ismordional leader, as Mortgagee, as security for payment of any indebtedness of Lessee. As
anal in this Lease, the tern "irsfitusba al lender" or "institutional mortgagee" shall mean a
commercial bank or must company (whether acting on its own behalf or in any fiduciary
capacity), an insurance company, a credit union, a pension trust or pension fend, a real estate
investment trust, and my other corporation or rntity which is subject to supervision or regulation
by the Comptroller of the Currency, of the United Stares or by the banking or insurance
department of any state.
(b) When giving notice to Lessee with respect to my default hereunder, lessor shall
also serve a copy of each notice upon my Mortgagee who shall have given Lessor written notice
specifying its name and address. In the event Lessee shall be in default in performance of any of
the terns, covenants, agreements and conditions of this Lease on Lessee's pan to be perfurned,
Page 23 of 46
other than a default by Lessee be the payment of money, Mortgagee shell have the right, within a
Peace period having the same duration as the grace period available to Lessee for curing such
demuh, afer the expiration of the grace period available to Lessee for coring such default, to
cure or make good such default or to cause The same to be cured or made good whether the same
consists of the failure of payment or the failure to perform any ether obligation, and Lessor shall
accept such performance on the part of my Mortgagee m though the same lad been done or
performed by Lessee, hn case of a default by Lessee in the payment of money, Lessor will take
no action to effect a termination of this Lease by reason thereof unless such default has continued
beyond twenty (20) days after Lessor shall have served a copy of such notice upon Mortgagee, it
being the intent hereof and the understanding of the parties that Mortgagee shall he allowed up
to, but act in excess of, twenty (20) days after the service. of such notice to care any default of
Casae in the payment of Rent or in the making of any other monetary payment required under
The most of [Iris Lease. In case of any other default by Iessee Lessor will take no action to
effect a termination of this Lease by reason thereof unless such default has continued beyond a
period of thirty (30) days Offer the service of such notice To cure any such default of Lessee.
During any period that Mortgagee shgl he in possession of The premises and/or during the
pendency of any foreclosure proceeding and until the Lessee's interest in this Lease shall
Terminate, as the case may be, Mortgagee shall pay or cause to he paid the rent specified hareiv
and all other charges of whatsoever nature payable by Lessee hereunder which shall have
accrued and which are unpaid during said possession and/or pendency and which will thereaflar
name following the acquisition of the leasehold estate by Mortgage, or its designee, either as a
result of foreclosure m acceptance ofm msigmneg in lieu of fineclosOne Mortgagee shall also,
as promptly as possible, cause all defaults hereunder to be cured and all unperformed covenants
of Lessee to be performed (that occurred or were unperformed, as flue case may be, during said
possession argon pendency). Any default not susceptible of being cured by Mortgagee other
than rent and payment defaults (for example, without formation, banlwptcy or insolvency of
Lessee) shall be, and shall he deemed to have been waived by Lessor upon the completion of the
foreclosure proceedings, or acquisition of Lessee's interest w Le
this ase only, as to any
purchaser (which may, but need not be, Mortgagee) at the foreclosure sale. Nothing harem
contained shall preclude Lessor from exercising any of Lessar's rights or remedies with Penang
to my other default by Lessce a my This, subject to the rights of Mortgagee as herein provided.
All notices by Lessor to Mortgagee shall be deemed to have been validly given by The ember of
actual receipt by manual delivery or teleharsmission with written confirmation of receipt or
one (I) day after depositing with an agent of a reputable overnight carrier service or three (3)
days after being mailed by registered or certified mail postage prepaid, to Mortgagee A the
following address, or at such other address as shall be designated by Mortgagee in mitten nab ce
to Lessor (as to any notice to Mortgagee with regard to this Lease, such notice stall not be
considered valid if smt by electronic communication, e.g., e-mail).
(c) Without the prior written consent of Mortgagee, neither This Lease nor the
bormhold estate tonged by this Lease shell be surrendered, modified or amended and no
agreement pmportmg to modify or =and this Lease without such consent shall be valid or
effective.
rymuw.nMN0.5919e.a Page 24 of 46
(d) Upon any assignment of this Lease by any owner of the leasehold estate whose
interest stall have been acquired by, through or under any Mortgage or from my holder thereof,
the assignor shall be relieved of any father liability which may accrue hereunder from and after
the date of such assignment. Provided that the assignee shall execute and deliver seer a
recordable instrument ofss
assumption wherein such assignee shall assume and a m Perform
and observe the covenants and conditions in this Lease contained on Lessee's part to he
performed and observed, it being the "action of the Paries that once Mortgagee shall succeed
to Lessee's interest hereunder any and all subsequent assigmvents (whether by Mortgagee, any
purchaser at a foreclosure sale or other transferee or assignee) shall effect a release of the
assignor's liability hereunder. Nothing contained Intent shell be deemed to release the original
Lessee of its liabilities tommedm, without the prior written consent of Lessor and Mortgagee.
(e) A standard mortgagee clause naming Mortgagee may be added to any and all
hemmer mner policies required m he carried by Lessee hereunder on condition thaz the Laurance
proceeds me to be applied in the roamer specified in this Lease and the Mortgage shall so
Provide; except that the Mortgage may provide a manner for the disposition of such Proceeds, if
any, otherwise payable directly to Lessee pursumt to the provisions of this Lease.
(f) In the event that at my time hereafter Lessee seeks to mortgage its leasehold
estate, Lessor agrees to amend this Lease from time te time to the eirte d reasonably requested by
an institutional lender proposing to make Lessee a loan sawed by a first lim upon Lessee's
leasehold estate in and m the Premises ceder this Lease, Provided that such proposed
amendments do not (i) result in my changes in the Rent, Tennor other payments due to Lessor
payable by Lessee under this Lease or (ii) expand the obligations of Lessor; or (di) materially
and adversely affect the rights of Lessor hereunder m its interest in the Premises.
ARTICLE =1- AUTHORITY TO ENTER INTO AGREEMENT
1. The Lessor hereby represents and wmmts that it has taken all necessary Procedural
and legal steps as required by federal, state and local laws and regulations fm the purpose of
authodvng the execution of this Amended and Restated Final Lease and that execution of this
Amended and Restated Food Lease by the City Manager readers this Amended and Restated
Final Lessor a valid and binding dominant on the part of the Lessor.
2. Lessee hereby represents and wor mts that it has taken all necessary procedural and
legal steps as required under all state, local and federal laws and regulations, and all necessary
corporate action m mthmIZID the execution of this Amended and Restated Final Lease by its
undersigned corporate officers and that upon such execution this Amended and Restated Final
Lease is avalid and binding document on the pan of the Lessee.
ARTICLE CHH -WAIVER
Failure on the part of either party hereto to complain of any action or non -action on the
part of the other party no matter how long the same may continue, shall never be deemed m be a
waiver by such party of its rights hereunder. Forgoer it is tormented and agreed that no waiver
at my time of my of the provisions hereof by either patty hereto, shall be construed m a waiver
ryr eo#ialwrgaa Page 25 of
of any other provisions he an, and that a waiver at nay Inctiof any of the provisions hereof
shell not he construed at any subsequent time as a waiver of the seine provisions. The approval
of Lessor or of any action by the Lessee requiring the Lesson's coraent or approval stall not be
deemed to waive or tender unnecessary the Lessors consent or approval of any subsequent
similar act by the Lessee.
ARTICLE XXIV-NOTICES
Notices to the Lessor provided for in this Lease shall be sufficient if land delivered,
delivered to a reputable overnight delivery service or sent by registered or certified mail, retain
receipt requested postage prepaid to:
Edward A. Barrett, City Manager for the than curtent City Manager): and
Office of the City Solicitor
City of Bangor
City Bull
93 Harlow Street
Bangor, Maine 04401
Withampyto: Bernstein, Shia, Sawyer & Nelson
100 Middle Street, PO Box W29
Portland, ME 04101-5029
Ann: John L. Carpenter, Esq.
Notices to Lessee shag be sufficient if hand delivered, delivered in a reputable overnight
delivery service or seat by registered or certified nal, return receipt requested, postage prepaid,
addressed to:
Berger Historic Track, Inc.
Ana: Jon Johnson
100 Dutton Street
P.O. Box 614
Begin, PdE 04402
Penn National Gaming Inc.
Atm Carl Sotlosann, Esq.
825 Berkshire Blvd., Suite 200
Wyomissing,PA 19610
With a copy to:
Christopher E. Howard, Esq.
Pierce Atwood LLP
One Monument Square
Por0and, ME 04101
puom'aaPage 260f 46
or to such other respective addresses as the parties may designate to each Oliver in writing from
time to time.
ARTICLE XXV -INVALIDITY OF PARTICULAR PROVISIONS
If my term or Provisions of this Amended and Restated Final Lease or the application
thereof to my person or circumstanws is hereafter determined to be to any extent invalid or
unenlmceable, the remnirvder of this Amended and Restated Final Lease or the application Of
sachtmos and provisions to persons or circumstances other [lain those to which it is held invalid
or unenforceable shall not be affected hereby and swh term and provision of this Amended and
Restated Final Lease "I be valid and he emoreemble to the fullest extent permitted by law.
ARTICLE XXVI-CONSTRUCTION
The headings appearing It the Amended and Restated Final Lease we intended for
convenience and reference only, and not to be considered in construing this Amended and
Finlatnd Final Lease,
ARTICLE XXVH-NO PARTNERSHIP ORJOINT VENTURE CREATED
Nothing contained herein shall be deemed or construed as creating the relationship of
principal and again or of partnership or ofjoim venture between the parties, it being understood
and agreed that neither the method of computation of root nor my other provision contained
herein nor my acts of the parties shall be deemed to create coy relationship between the parties
other thin the relationship of landlord and Onnot.
ARTICLE XXVIII - GOVERNING LAW
This Lease shall be governed exclusively by the provisions hereof and by the laws of the
State of Maine.
ARTICLE XXIX- MEMORANDUM OF LEASE
The parties agree not in record this lease; however, upon request of either, the other shall
prepare and execute a Memorandum of Lease m a form suitable for recording m the Penobscot
Maine Registry of Deeds, as evidence of Lessee's interior in the premises demised herein.
ARTICLE XXX- AMENDMENT TO LEASE
ryga,tt���a4bOsarP9a
Papa 27 of 46
This Amended and Restated Final Leese contains all the terms and conditions between
The parties heron and no alteration, amendment or addition hereto shall be valid unless in writing
and signed by both parties hereto.
ARTICLE XXXI — RELATION TO ORIGINAL DOCUMENTS
1. Upon the Commemczment Date, the term of d® Inifial Lease shall terminate, and
all obligations, rights and duties of the parties thereto shall terminate thereunder except for those
obligations which expressly survive such coordination Furthermore, upon the Commencement
Date, the Original Documents shall be deemed fWfilled " to all development obligations of
Lessor and all obligmions of any kind of Lessor, and Lessor shall thereafter have no right to
terminate this Amended and Restated Final Lease except in the manner and at the times set forth
elsewhere berein; provided, however, the Development Agreement, as amended, has been
referenced in Us Uwe as the source of definitional tams, and therefore,To the
ed, shall
inwryarated herein, those defnuouel terms of the Development Agreement, as
remain effective.
2. Lessee hereby agrees that during the Term of this Lease, neither Lessee nor any
parent, subsidiary, or affiliate entity of Lessen shall acquire any interest in real property for the
comvuotion of a commercial track or a slot machine facility, as defined in 8 M.R.S.A. § 1001,
within 50 miles of The Premises. Should Lessee or any such Parent, subsidiary, or a%lute eurty
acquire such irrteres[, it shall constitute a breach of this Lease by Lessee which shall cantle
Lessor on termwate the Lease per Article X 111.
ARTICLE X=I —PASSAGE AND EASEMENT
The parties acknowledge that the property known as Rte Bass Park complex is used by the Lessor
and other Parties at various times during the yea and that in order to accommodate those various
uses, the Lessor To this Lease reserves certain Tights and use related by the Limited Portion of
Bass Park portion of the Premises to itself and its successors and assigns. The Lessor does
hereby reserve the following Tights to the Limited Portion of Bass Park and the parties do hereby
describe certain uses of Bass Park facilities by each of the parties:
a. Pte. The parking lots designated on EXHIBIT A as "shored" will be
available on a non-exclusive basis for use by harness noting customers, for
attendees a the Bass Park Complex and other Bass Park Complex events held a
The Bass Park The Lessor and Lessee doll use commercially reasonable efforts to
accovunodate the puking needs related to each party's use of the Premises, and
agree to work in good faith to resolve all conflius regrading ufilizabon of shared
parking meas in a fanion that fairly and appropriately balances the needs of both
parties for we of such spaces. However, in fie event that Lessor shall in future
construct a parking garage or other puking facility on Bass Park, Lessee shall not
be entitled to any percentage or shared use of said facility under this Amend
nm,sBrsa.a Page 28 of 46
and Restated Final Lease, and the above rights of shared use apply only to
existing sou srot packing. It is acknowledged and agreed by Lessee that Lessee's
non-exclusive parking rights MY be significantly affected or disturbed during the
periods that the Bangor State Fair is scheduled from year to year, and that parking
for the Bangor State Fair shall have Priority fights over Lessee's parking rights
related an the use of the Bass Park ComPlex.
b. Trailer Park. The trailer park areas depicted on the attached EXHIBIT A will be
available (on a subordinate basis) for use by individuals associated with ban" shows held in
August and during the Lamers racing season with bamess racing on a Priority basis. At all other
times, any unused space in the Trailer Park will be made available by the Lessor for short-term
use by others with the revenue from these users to be collected and retained by the Lessor.
C. Tek and Gmadstaed. The track and grandstand seating areas including the
office improvement areas depicted on EXHIBIT A shall be available for use by
the Lessor for other events add uses a all times except during the harness racing
season. For purposes of this Lease, the "harness racing season" shall mean the
period of time during each year that Lessee magmas for and conduce its race
Met pursuant m the provisions of 8 M R.S.A. § 271. The track and grandstand
seating areas shall also be available to the Lessor and its invitees during the
bemess racing season on contouring days mad after racing on any racing day
where racing is nommlly scheduled to end by 6:00 p.m. Such uses shell be
permitted provided that the hack some shall act be closed to horses for mere than
than days in any week from April 19 to the daze of cormmencemene of the
harness owing season and for no more than two days is any week during the
racing season. Lessee shall have exclusive use of those portions of the greadsrand
that are the location of Lessee's office space only during the berg ss racing
season.
d. Bangor Stam Fair: The Lesson may continue to operate the Bangor State Fair
during the term hereof az the Bass Park Complex, including portions of the
Limited Portion of Bass Park portion of the Premises and, so long as a portion of
the Premises is used, Lessor agrees that the Fair shall not to exceed fourteen (14)
days and shall he on substantially those dates as utilized by the State Fav during
2004.
e Other Uses: In addition w the foregoing, the Lessor may during the ton hereof
use any Portion of the Limited Portion of Bass Park portion of the Premises not
ufilized by Lessee for its harness racing or office operations, for any parlours,
subject however to the condition tlmt such now do not unreasonably iahmiffie with
or otherwise adversely affect the Lessee's harness racing office operations at the
Premises. Any such use by the Lessor may include, but shall not be limited to,
youth soccer.
f. Clammetion. Lessee and Lesser agree to cooperative efforts to avoid any
interference resulting from their respective uses of the Premises.
ryamss oFAB597983
Page 29 of 46
g. Passim . Each of the Lessor and the Lessee hereby grant in the other a right of
passage and easement over its respecfive portions of the Bass Park Complex for
Purposes of access to and mass" and egress from their uses of the Limited
Portion Of Bass Park Portion Of the Premises. The Levers, its employees, agents,
versants and invitees shall have the right to eater onto the Limited Portion Bass
Pork portion of the Premises at ell reasonable times with personnel, vehicles
equipment for the pmpose of mointainda& repairing and replacing the
infraswcture, utilities and appurtenant stractures that are not Lessee's obligation
to monitor or to conduct my such activities on behalf of Lessee in the event of
Lessee defauh in the manner and subject b the limitations act forth herein.
ARTICLE XXXIH-COST SHARING AND RISK ALLOCATION PROVISIONS
L Def itiona. For purposes of this Ankle X lfi the following terms shall have
the meanings hereinafter set forth:
"Annual harmonic Impact" meso the net yearly economic effect of
(i) all increases or (for the purposes of offset calculations) reductions in caPital
ciassu iNres("Cap Ex"),and/or
(ii) all reductions (or for the purposes of offset calculations) increases in the
revenues ('Revenues") realized; and
(iii) all increases or (for the purposes of Offset calculations) reductions m
operating expenses ('01wee ing ExPen6e9")
at the Gaming Facility opereted by Lessee pursuant to the teens Of this Lease determined upon
the implementation and compliance by Lessee with the appliable Law Change(s) for the
preceding Lease Yew based upon the actual effect Of all Law Changes, on a combined basis as
calculated and determined as set forth in this Article =111. The Lessce's calculation of
Annual Economic hnpact shall not include my increases or losses dal are attributable to other
items not directly combinable to, Or required by. a Law Change (e.g. inflationary increases in
wages, energy costs, em.). The calculation of Annual Economic Impact shall be made on a
comma ive basis giving effect to all Law Changes occurring form the date hereof through the
dace of calculation and shall take into consideration bath positive impacts and negative impacts
of my Law Changes. By way of example ben not by way of limitation, if Lessee's Operating
Expenses are reduced by $2,000,000 due to a Law Change in Lease Yew 4 that is favorable 10
Lessee, and subsequently raised by $1,500,000 due to a Law Change in Levu Year 5, assuming
no alter Law Changes during the first five yews, the Annual Economic Impact Of the Law
Change in Leau Yew 5 shall be a positive impact of $500,000 (rather then a negative
$1,500,000) became the cumulative impact on Operating Expenses is positive. If a Law Change
continues in effrct for more than one yew, the effect Of that Law Change shall be included in the
determination of Annual Economic Impact for each subsequent year in Ex ch hit mins in
effect. but only to the extent to which the iamewe in Cap Ex, or operating pensor
rypnmi��(Nre49i983
Page 30 of 46
in Revenues reams in, or is solely attributable to additional costs incurred in, such subsequent
Lease Year.
"Captured Assessed Value" is defined as the tail assessed value of the real and
personal property of the Lessee located at the Riverside Block for which Lessee is resporvsible
for real and personal property taxes as of April I of the Lease Yen for which m "
Impact' is calculated, less the fatal assessed value of the real and personal property lofted on
the Rivmside Block as of April 1, 2005.
"Economic Impact Statement" weans a reasonably detailed statement setting forth the
basis for the good faith determination by Lessee of ivy Annual Ecommia hupact and which
shall be submitted to Lessor by Lessee on or before April 1 of each year for the preceding Lease
Year, The EwmMc Impact Sanatoria shall s am Lessee's basis for any conclusion that any one
or more Law Change(s) has caused a Financial Effect. The Economic Impact Statement shall
contain a statement of all Law Changes addressed therein, shall contain a baseline calculation of
Cap Ex, Gperating.Expenees and Revenues prior te the Law Change and shall itemize and
describe the specific impact and cost of such Law Changes and shall be in a form and contain
such detail as is reasonably requested by Lessor. The Lessee's Economic Impact Statement shall
he citified by Lessee's most senior frsocad officer assigned to Me oversight of the Gaming
Facility. Such determination shall be final and binding upon the Lessm and Lessor unless the
Lessor, in a form acceptable to Lessor, notifies Lessee of ivy objections to such Economic
Impact Satesnent within 30 days following receipt Hereof Lessor shall have the right w audit
m inspect the accounting books, records, a ledgers of Lessee for the purpose of determining any
emensuch objectiam m to verify the content of Lessa's Economic Impact Satca
docunvand ss
enation,Or
shall reasonably cooperate with Lessor's request for ivfomation,
substantiation of any the effect of ivy claimed Law Change set forth iv the Economic Impact
Sa[emena. Lessor's 30 day period te notify Lessee of any objectimvs shall be ufiliflly and
such
reasonably extrndM for delays fused by Lessee's failure a timely famish suchchinformation,
documentation, or subnantiation to Lessen when requested. Any such objection notice
shall
ment which Lessor essor
specify, in reasonable detail, the elements of the Economic Impact Srme
disputes or analis w be incorrect. If the parties are amble m resolve the dispute within thirty
(30) days after Lessee's receipt of Lessoi s objection notice, then the dispute shall be submitted to
a firm of independent cMified public accomtants mutually acceptable to both parties sAudit
Professionals'"). If both parries cameo[ agree ov Audit Professiomis within thirty (30) days, Nen
each party shall, within fifteen (15) days ihereafieq select one (1) independent Evtn of Audit
Professionals, and such two (2) Audit Professionals shall together select a [lilrd firm of Audit
Professionals, which third firm shall be the Audit Pro ionala who shall resolve the dispute. ff
either party fails to select its Audit Professionals within said fifteen (15) day period, then the
Audit Professionals selected by the other party sball asolve the dispute. The Audit Professiomis
shall be entitled m review all records relafi]tg no the disputed items.Excepttffor mmdsand W,
the deamuratim of the Audit Professionals shall be final and binding upo pini es
Audit Professionals' expenses shall be home by Lessor to the event that the Audit Professiavals
shall detemdve that the Economic Impact Statement is accurate in all respect. N the event the
Audit Professiomis shall determine then
the
Fo the a mot t s
niin error in my
be
material respect (i.e., greater than $50,000), tsf all Audi
home by Lessee.
it[w(459]Po.a
Page 31 x146
,unrial Effect" mems an Annual Bcommlc Impact oweading $1,000,000 per yew.
"Gaming Authority" mems Lessee's right to opem[e Gaming Machines at the Riverside
Block.
"Gaming Authority Termination" means my Law Change (other than Lessee's failure
to obtain, or the revocation or denial of, required licenses, approvals or authority to operate
(3muing Machines or a Harness Racing Track) that results in a termination or elunivation of
Lessee's mthority to operate Gaming Machines at the Riverside Block.
"Gaming Impairment" mems any Law Change (other then Lessee's failme to obtain, or
the revocation or denial of, required licenses, approvals or authority to operate Gaming Machines
or a Harness Rasing Track by action of the Mame Gambling Control Board or other applicable
gaming regulatory authority, provided, however, that such an event shall contribute a valid basis
for default and termination of this Lease as set forth in Section XIIIH(a), subject to the
provisions of Section 4 of this Article XXXHI), that results N a termination or elimination of
Lessee's authority m OPowe the required minimum of 1,000 Gaming Machines at the Premises
but bas not resulted in Gaming Authority Temdnation.
"Law Change" means my change in the laws, rules,
nanc
regulations, ordinances and other
legal requirements in force as of the Commencement Date hereof enmted Or adopted by the
Legislature of the Stare of Mame, the Maine fumbling Control Board, Penobscot County. the
City of Bangor, or my other polifical subdivision, agency, or instrumentality of my of the
fomgoiv& The following shall not qualify for inclusion in the turn "Law Change":
(a) my Law Change of general applicability On other businesses, or groups of other
businesses (e. g. restaarmtid in the State of Maine except to the extent, if any, that such changes
of general applicability specifically Provide that they shall apply to businesses operating Gaming
Machines or wmmertial harness marks on a basis that is different than their application to other
business organiamena
(b) my Law Change allowing operation of Gaming Machines in York, Cumberland, or
Washington counties;
(c) any Law Change that Lessee does ant actively oppose through the ase of lobbyists or
public wmmunicatinm or
(d) my Law Change that Occurs when Lessee's iuremelly established policies and
Operating procedures already meet or exceed the requirements established by such Law Change.
(e) my change in the assessed value of the Premises for the purpose Ofcalculatim real
estate taxes, providedhowever, that Lessee shall at all vanes have rhe rights to dispute the
valuation of the Premises and Lessee's personal property and may exercise my other legal rights
and remakes related to propertymotion on the same basis as other taxpayers in Bangor, Maine.
� ,gNUSSMa Page 32 of 46
"Significant Change in Law" means any Law Change that, individually or Ween
together with other Law Changes, requires action by Lessee that has a Financial Effect on
Lessee. For dte putpoee of the foregoing, all Law Changes shall be aggregated to determine
whether, over a one-year period of time, a Financial Effect has occurred.
2. Notice of Law Change. Lessee and Lessor shall endeavor to inform the
other of any proposed Law Change of which it becomes aware, and Lessor and Lessee agree to
confer as to such proposed Law Change. Failure m so mhorm the other party or failure in so
amber shall not constitute a breach of this Lease. Lessee shall provide written notice to the
Lessor of any Law Change that the Lessee anticipates will have a Financial Effect within 30 days
following the effective date of my such Law Change.
3. Cost Sharing. (a) Upon the occurrence of a Significant Change is Law the
Financial Effect of which is adverse to Lessee, Ne following past shining Payments ("Cost
Sharing Payments') shall be made miles manner set forth below:
(i) For every $1 of Am and Economic Impact in excess of $000,000 and up to
$3,000,000, the Lessor will pay to Lessee $.25 (twenTy, five cannot).
(ii) For every $1 of Annual Economic Impact in excess of $3,000,000 and OF to
$5,000,000, the Lessor will pay to Lessee $.20 (twenty cents).
(iii) For every $1 of a moral Economic Impact in excess of $5,000,000 and up to
$6,100,000, the Lessor will pay to Lessee $.15 (fifteen needs).
(iv) For every $1 of Armed Economic Impact m excess of $6,000,000, the
Lessor will pay m Lessee $.12 (twelve cents).
Attached hereto as EXEIIBTT D are examples of the foregoing calculations . These examples are
included for illustrative proposes only and assign arbitrary lheorefical values In Annual
Economic Impact for purposes of the example, which have no force or effect other than to allow
an illustrative calculation.
(b) In any single Lease Year (prorated fm any partial lease year), the maximum
possible amount payable by me Lessor o tide Lessee under Section 3(a) above "I be capped m
the levels shown on EXdBIT E attached hereto and made a part hereof.
(c) Lessor's obligation to make Cost Sharing Payments shall homage fifteen (15)
years from the Effective Date hereof, and any sed all Coal Sharing Payment obligations under
Section 3(a) above (other tbsn those thin mPaid and related to prior years) shall terminate in
their emirety m that time.
(d) If in any single Lease Year, Cost Sharing Payments exceed the maximum amount
payable specified in Section 3(b) above, any amount due over and above the maximum amount
payable shall not he carried forward re subsequent Lease Years and shall be considered
pmw.nrytgn59]89.9 Page 33 of M
automatically waived and discharged upon payment of Cost Sharing Payments due for the
application Lease Year.
(e) Lessors obligation to make Cost Sharing Payments shall not be effective, nor shall
Lessor be liable for my cost sliming during my period during which the Lessee is m default
hereof, provided that Lessors obligations shall not he suspended for Lessee's default during my
time period during which no default notice has been given.
(f) Upon termination of this Leese, Lessor shall have no froden obligation to make Cost
Sharing Payments (other than payment of unpaid amounts related to prior periods). Provided,
however, that the foregoing shall not limit or impar Lessee's right to challenge and/or appeal any
determinations of assessed value established by the City Assessor on the same basis as applicable
to any other owner of private property within the City.
(g) Lessor shall not be required to make any Cost Sharing Payments, not shall Lessen be
liable for my cost sharing during my period in which Lessee's authority on operate at least 1,000
Gaming Machines at the Riverside Block is summoned or suspended.
@) Lessor shall not he required n make my Cost Sharing Payments, nor shall Lessor be
liable for my cost sharing during my period in which the Permanent Gaming Facility is not in
full operation (i.e., fully operating all required Gaming Machines) by thrum of force majeure.
(i) Cast Sharing Payments due or Lessee from Lessor shall he made by the later of 30
days after the end of the L4 for which the payment is due and July 15 of the year following the
Lease Year for which the payment is due. If the amount of Cost Sharing Payments for any year
him not been finally determined prior on July 1 of the Lease Year in which the payment is due,
payment shall be made within 30 days of the date of the determination of the final and binding
payment amount.
(j) The Cost Sharing Payments required under this Section 3 will commence upon the
Commencement Dale of this Amended and Restated Final Lease. All annual amours and values
will be promised on an appropriate basis in order to account for my partial Lease Yems with
respect re which Cost Sharing Payments are required. For purposes of Section 3(c) above, the
15 -year total period identified shall commence on January 1 following the commencavent of
Commercial Operation of the Permanent Gaming Facility (if such commencement does not take
place on January 1).
4. Termination of Gaming Authority. (a) In the event of Gaming Authority
Termination, the Lessee shall have a period of up to five (5) years from the date the Gaming
Authority Termination takes effect in which to seek and obtain a reinstatement of Lessee's
Gaming Authority. Suspension of operation of Gaming Machines at the Riverside Block during
all or my portion of the period of Gaming Authority Termination (up to five (5) years) shall not
constitute a default maker this Lease, provided that Lessee shall be obligated to perform all other
covenants under this Lease during pendency of my Gaming Authority Termination, maduding
without linsitation, payment of all round amounts due bereander, including Rent and other men -
Revenue Sharing mnomts due from Lessee. The Revenue Sharing Floor Amount shall not be
maw:a.�gwoassrsea page 34 of 46
paid during Ne pendency of any Gaming Authority Temdnation. In the event of a Gmvmg
Authority Termination, Lessee shall use commercially reasonable efforts to reverse or modify
the Law Change and/or petition as soon as passible in order to cause a reinstatement of Lessees
Gaming Authority. As soon az passible, using commercially reasonable efforts, upon
reiasetement of Lessee's Gaming Authority, Lessee well commence operation of all required
Gaming Machines at the Premises. In the event Lassoes Gaming Authority is not mireatated by
the conclusion of the 5-year period, than either Lessee or Lester, upon written notice m the
other, shall have the right thereafter for so long as Lessee's Gaming Authority has not been
trimmed to terminate this Lease in its entirely. Upon such termination, Lester and Lessee shall
have an Father rights, obligations or liabilities under the Lease, other than Nose that expressly
survive For iattion. In addition, Lessee shall have the right, in its sole discretion, to terminate
this Lease prior to the expiration of the 5-year period by providing written notice to Lessor on in
before May 1 of my calendar year exercising its right of termination effective as of January I of
the following calendar year.
(b) In the event of any Gaming Impaimseol, Lessee shall have the option to either (i)
mundane to operate Gaming Machines and occupy the Premises under this Lease in accordance
with its terms, including payment of Revenue Sharing, or (it) cease operations at the Permanent
Gaming Facility. Lessee shall have around of 24 months following the effective date of the
Law Change resulting in Gaming Impanment within which to notify the Lessor whether Lessee
will continue or cease operations under Nis subsection 4(b). During such 24 month period, the
Lessee shall have the option, in its sole discretion, to cease operations at the Paramount Gaming
Facility on an interim basis for all or any portion of such 24 month period. In any event, during
any period of Gaming Impairment, whether or not any Gaming Machines me in opemtiov, (i)
Lessee shall be obligated to perform all other covenants order this Lease, including without
Hamer, payment of all Rent and other amounts due hereunder, and (ii) Lessee shall pay m the
Lessor, in lieu of Revenue Sharing (including payment of the Revenue Sharing Floor Amount),
the grainer of (A) acral Revenue Sharing from Gaming Machines in operation, or (B) a reduced
minimum revenue sharing amount, in lieu of the Revenue Sharing Floor Amount, N an meant
equal m: (x) Fifty percent (50%) of the total revenue sharing amount per slot machine paid by
Lessee during the last full Lease Year immediately prior to the period of Gaming Impairment,
multiplied by (y) the maxi mom number of Gaming Machines Nat Lessee has authority to operate
at Ne Permanent Gaming Facility during such period of Gaming Impm maid. The reduced
minimum revenue sharing amount shall be prorated on an appropriate basis for any partial Year
included in Ne period of Gaming Impairment. In the event of Gaming Impairment, Lessee
shall sou commercially reasonable Orions to reverse or modify the Law Charge and/or petition as
soon as possible to cause a reinstatement of Lessee's authority to operate at least 1,000 Gaming
Machines. As soon as possible, using commercially reasonable efforts, upon termination of any
period of Gaming Impairment, Lessee shall commence operation of all required Gaming
Machines at the Premises.
5. Revenue Sharing and Tax. (a) If either or both of 8 M.RS.A. § 101 t(4) or 8
M.R.S.A. § 1036 (2) (J), or any successor statute, is after the date hereof amended or modified
(mvluding through repeal and replacemern) to increase the Section 1011(4) Payment or the
Section 1036(2X1) Tax above their current levels of 3% of total gross slot machine income and
1%of total gross slot machine income, respectively, to be paid to the municipality in Which the
ryTmnu,gWpC59]9A9 Page 35 of 46
slot machines are located ("City Slot Percentages") and if, and only if, and only to the extent
that, such an amendment or modification has the further effect of:
(i) increasing rhe then-effeadve aggregate overall amount due from Lessee under
8 M.R.S.A. §1036 (2) and/or B M.R.S.A. §1011(4), or my successor statutes (it being
acknowledged as of the data hereof that said aggregate overall amount due pursuant to 8
M.R.S.A. §1036 (2) and 8 M.R.S.A. §1011(4) is currently 42% of total grosS slot
machine income as defined under said statures) (my such increase over the 42% that is
due to an increase in the City Slot Percentages is herein referred to as "Lessee
Percentage Increase'); or
(it) reducing the then effective overall mums; payable to Lessee pursuant to 8
M.R.S.A. § 1036(2)(H), or any successor stable ("Leasee Revenue Shure Decrease');
than, if Lessee is not then in default of the Lease, any such Lessee Percentage ]morns or Lessee
Revenue Share Decrease actually received by the Lessor shall be reimbursed by the Lessor to
Lessee upon the Lewor s receipt of same, from Lessors fords that Lessor shall desigrute within
its sole discretion. In this case, the Lessee Percentage Increase or Lessee Revenue Share
Decrease shall not be deemed a Significant Change in Law or a Law Change =der this Article.
This section shall not and is not intended to reduce my amounts or payments regained m be paid
to Lessor under my other agreement, law, ordinance m regulation, other than as explicitly set
forth above.
(b) If my provision of 8 M.R.S.A. §1036 (2) (J) or 8 M.R.S.A. § 1011(4) is amended
W increase the City Slot percentages, and such increase does mt, in addition, result in a Lessee
Percentage Increase or alasee Revenue Share Decrease, my such increase or decrease shall not
be subject to the preceding paragraph, shall not constitute a Significant Change in Law or a Law
Ch=ge, and shall be paid m the Lessor by Lessee in accordance with this Lease and/or the
provisions of law applicable thereto.
(c) In applying the provisions of this Section 5, the City Slot Percentages, the Lesser
percentage Increase and the Less« Revenue Share Decrease will be calculated for each Lease
Yeas giving Granulative effect to all charges in the City Slot Percentages, the Lessee percentage
Increase and the Lessee Revenue Share Decrease on an aggregated basis, whether over a one -
yew period of time or multiple years as a result of multiple Law Changes affecting those
peroentages or amounts.
Lessors marbmsam or obligations under this Section 5 shall terminate fifteen (15) yews
from the Effective Date hereof, and my and all payment obligations under this Section 5 (other
than those than unpaid and related to prior years) shall thereafter terminate.
6. Savings Clause. Whenever possible, each provision and term of this Amended
and Restated Final Lease will be imer ceted in a warmer m he effective and valid, but if my
provision or term of this Amended and Restated Final Lease is held Is be invalid or
unenforceable, then such provision or term will be ineffective only or Ore extent of such
invalidity or manimceability, without invalidating or affecting th any manner whatsoever the
aw°bss,ahwWaa]BB.3
Pape 36 of 46
remainder of such provision or term or the remaiwng provisions or terms of this Amended and
Restated Final Lease, and the parties shall in good beach agree upon and implement enforceable
terms and provisions that most closely preserve the ecommic costs and benefits inherent in any
terms or provisions that are determined to be invalid or unenforceable.
ARTICLE XXXIV—SUPPORT
fn order to express Lessor's support for maintaining a stable, cousisten legal framework
for Lessee's gearing operations, reference is made to the resolve adopted by Lessor's City
Council, attached hereto as EXHIBIT F.
ARTICLE XXXV —LESSEE HOLDOVER
If Lessee shall default in surrendering the Premises upon the expiration or earlier
termination of the tarn of this Lease. then Lessee's occupancy subsequent to such expiration or
[amination, whether or not with the consent or acquiescence of Lessor, shall be deemed to be
that of a tenancy -at -will and in no event from mouth -to -month or from year-to-year and it shall
be subject to all terms, covenants and conditions of this Lease applicable thereto, including,
without limitation, rental provisions. Nothing herein shall be deemed either permission to hold
over or a waiver of any rights or remedies of Lessor in the event of hold over or other breach of
the Lease by Lessee.
rygwcu.1&M4a B7883 Page 37 of 46
IN WITNESS WHEREOF, the parties hereto have set Weir hands and seals the day and
year written above.
WITNESS: CTTY OF BANGOR
(BY)
Edward A. Barrett
Its City Manager
WITNESS: BANGOR HISTORIC TRACK, INC.
(BY)
Title:
STATE OF n1AINE
PENOBSCOT, ss 2006
Tbea personally appeared the above-named Edward A. Barnett, City Manager of the CitY
of Bangor, and acknowledged the foregoing instrument to be his free act and deed in his said
capacity, and the free act and deed of said body corporate.
Before me,
Notary Public/ Attamey-at-law
STATE OF
2006
Then personally appeared the above-vameA
of Bangor Historic Track, Inc., and acdmowtedged the foregoing
instrument to be his/her free act and dead in his said capacity, and the free act and deed of said
corporation.
Before me,
Notary Public/ Attomey-at-law
EXHIBPf A
DepictionMescriptlon ofthe portion ofthe Remises that is located on the Bass Park
Depiction'Descripfion of the portion of the Premises that is located on the Bass Park (including
the Parking Aree'�
EXHIBIT B
DepioflmdDnoription of the emhe "Riveodde Block"
EXHIBIT B-1
Depictiod sctiption of the portion of the Premises that is located on the Rivrrside Block
rynxeupt11A159]98.]
Page 2 of 4fi
P
=-
�, ;-_ <:;; �= maw=-w-� �•-�;�-v
Initial Lease
Track and hams (10.85 acres)
Track oval (9.33) acres)
RV Park (2.6 ares)
Grandstand (0.9ames)
Parking — OTB (1.0 acres)
Parking—Racing (1.0 acres)
Personal Property
100% of real estate taxes
50% of real estate taxes
50%ofrealestatemxes
100%ofrest estatemxee
100%ofTeal estate taxes
50% of real estate taxes
100% of personal property taxes
Mnal Lease
Track and Barns (10.85 acres) 100% of real estate taxes
Trick oval(9.33) acres)
50% of real estate nixes
RV Pink (2.6 acres)
50% of real estate taxes
Grandstand (0.9acres)
50%ofcut estate taxes
Parking— employee(2.0 acres)
100% of real estate nixes
Puking — Ruing (LO acres)
50% of real estate taxes
Personal Property
100% of personal propeny taxes
Real Estate -Riverside Block
100% of real estate taxes
Personal Property—Riverside Block 100Io of personal property taxes
EXHIBIT D
111 E le ofC st Sbm'ne CalcWafion
Assume Atumal NM Ewnomic Impact adverse to BUT =$6,500,000
Annual Net Economic
S t
Annual Cort ShazineBn
d' e b t$0-$100,000
$0
$1000,000-$3,00,000
$500000
$3,000,000-$5,00,000
EAdi�entt
$40,000
$5,000,000-$6,000,000
$150,000
$6,00,000-$6,500,000
$ 60 0nt
$1,11,000.00
FXMBIT E
£n any single lease year (prorated for any partial lease year), the maximum amoont
payable by the Lessor to the Lessee shall not exceed the following, if the permanent
facility opens during calendar year 2008:
1. During the initial five (5) year period commencing on January I of the
fust full year of operation of the Permanent Facility 0 e. lease years I
through 5, as described in section 2(g)), 75% of the Captured Assessed
Value (as defined berom) resulting from Lessee's real and personal
property located on the Riverside Block as of the end of each year during
the 5 -year period, multiplied by the City's mil rate in effect 9 the and of
each year during such 5 -year period.
2. During the next five (5) lease year period (lease years 6 through 10), 50%
of the Captured Assessed Value resulting from Lessee's real and personal
property located on the Riverside Block as of the end of each year during
the 5 -year period, multiplied by the City's mil raze in effect at the end of
each year during such 5 -year period.
3. During the next five (5) lease yen period (lease years t I through 15),
25% of the Captured Assessed Value resulting from Lessee's real and
personal property located on the Riverside Block as of the end of each
year during the 5 -year period, multiplied by the City's mil rare in effect at
the end of each year during such 5 -year period.
Should the permanent facility open in any subsequent calendar year, the percentage of the
captured assessed value to be used in computing the mazimum amount payable shall be
reduced in accordance with the following chart.
Opening
Date 2009 2010 2011 2012 2013
Years 1-5 60% 45% 30% 15% 0%
Years 6-10 40% 30% 20% 100/0 0%
Years 11-15 20% 15% 10'/0 5% 0°/
EXHIBITF_
Resolve
CITY OF BANGOR
(TITLE.) Resolve, Establishing the Position of the City of Bangor in Regard to the Operation of
Slot Machines in Bangor.
WHEREAS, on lune 10, 2003, the citizens of the Qty of Bangor approved a referendum that
will permit the operation of slot machines at a commercial harness racing track in
Bangor; and
WHEREAS, on November 4, 2003, a state-wide referendum authorizing the operation of slot
machines at commercial harness racing tracks was approved by the voters of the
State of Maine; and
WHEREAS, at that time, voters in the City of Bangor also approved the state-wide measure,
once again affirming Meir support for authorizing slot machines In Bangor; and
WHEREAS, as a result of these actions, the voters of Bangor and Maine have authorized an
expansion of the gaming functions traditionally allowed in the State; and
WHEREAS, during 2004, the Legislature modified the language of the state-wide measure
authorizing slot machines and established the Maine Gambling Control Board for the
purpose of developing and implementing detailed regulations governing slot
machines in Maine; and
WHEREAS, the Gambling Control Board, in conjunction with staff of the Maine Department of
Public Safety, has worked diligently to establish an appropriate framework for
licensing and regulating the operation of slot machines In Maine; and
WHEREAS, the City of Bangor has entered Into various agreements with Bangor Historic Track
that allow for the introduction of slot machines in association with Bangor Historic
Track, Including a provision that allows for the creation of an interim gaming
facility; and
WHEREAS, Bangor Historic Track opened an interim gaming facility In Bangor in November
2005 and is continuing to work with the City on plans for a permanent facility; and
WHEREAS, during the last legislative session, numerous proposals were advanced to modify
the state gambling laws and/or change the regulatory framework developed by the
Gambling Control Board; and
WHEREAS, efforts are under way to place Initiatives on the state-wide ballot that would modify
existing state gambling laws; and
WHEREAS, continued uncertainty as to future changes in Maine gambling laws and regulations
can have a negative Impact on the development of a slot machine operation in
Bangor and could conceivably result in thwarting the will of Bangor's voters as
expressed in the elections of lune and November 2003; and
WHEREAS, the redevelopment of Bass park and the construction and operation of gaming
facilities in conjunction with the harness racing track will allow for the continued
future of harness rating in Bangor and provide an economic boost to those
engaged in this Industry; and
WHEREAS, such a facility will enhance the economy of the greater Bangor Region and the
state, with a total annual impact on the Bangor economy estimated at $95.6 million
in sales revenue, $10.3 million in wages and salaries, and the creation of 500 full
and part-time jobs; and
WHEREAS, under the existing agreements between the operator and the City, the permanent
facility will generate a minimum of $2.1 million in annual revenue to the City in
property taxes, lease payments, and the City's share of slot revenues; and
WHEREAS, this may provide a source of revenue to the City for reinvesting in our regional
economy through the construction of a new Arena to replace the Bangor
Auditorium, a project which otherwise could not be undertaken given the limited
revenue base provided to lora] governments in Maine; and
WHEREAS, the presence of a state of the an convention and meeting facility in Bangor is
estimated to have a direct economic Impact on our region of between $21 and $28
million per year and to support over 1,000 jobs; and
WHEREAS, in order to proceed with constructing this facility, It will be necessary for the City ro
Incur long-term debt to be repaid through the revenues the City receives from slot
machines; and
WHEREAS, It is essential, therefore, that this revenue stream be stable and predictable for the
full period in which the City will be making annual debt service payments; and
WHEREAS, the City Council approved a resolve in November 2005 calling for a three-year
moratorium on any significant changes to the Maine Statutes governing slot
machines in order tol provide an opportunity to sufficiently study the effects of a
slot machine facility in Maine prior to any further significant modification in State
laws and regulations that would either eliminate or further expand slot machine
operation In the State; and
WHEREAS, given the requirement that slot revenues become a stable and predictable revenue
source to support the City's planned investment in a new facility to replace the
Bangor Auditorium and Civic Center, it is appropriate for the City to take a position
in opposition to any efforts that would have a significant adverse financial impact
on Bangor Historic Track and the slot revenues to be received by the City.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BANGOR THAT
The OM1y takes the position that neither the legislature nor the people of the State of Maine
should sponsor, support, or advocate for any change in laws, rules or regulations that could
reasonably be expected to have a significant adverse financial effect on Bangor Historic Track
and its harness racing and slot operations in the City of Bangor.
BE IT FURTHER RESOLVED THAT
City staff Is hereby authorized, acting on behalf of the Bangor City Council, to actively oppose
any change in laws, rules, or regulations that could reasonably be expected to have a
significant adverse financial effect on Bangor Historic Track and its harness racing and slot
operation in the City of Bangor.
BE IT FURTHER RESOLVED THAT
The City Council hereby reaffirms Its position, as expressed in Council Resolve 05-316,
adopted on September 26, 2005, calling for a three year moratorium on any significant
changes to the Maine statutes governing slot machines and opposing any effort to modify
these laws and regulabons through the citizen inRlative and referendum process
IW4Ult3009
In any single lease year (prorated for any partial lease year), the maximum
amount payable by the Lessor to the Lessee shall not exceed the following, if
the permanent facility opens during calendar year 2008:
1. Dming the Initial five (5) year period commancing on January 1 of
the first full year of operation of the Permanent Facility (i.e. lease
years 1 damugb 5, as described in section 2(g)), 75% of the
Captured Assessed Value (as defined herein) resulting from
Lessee's real and personal property located on the Riverside Block
as of the and of each year during the 5-ymr period, multiplied by
the City's mil rete in effect at the end of each year during such 5 -
year period.
2. During Be next five (5) lease year period (lease years 6 through
10), 50°/ of the Captured Assessed Value resulting from Lessee's
read and personal property located on the Riverside Black as of the
end of each year during the 5 -year period, multiplied by the City's
mil rate in effect at the end of each year during such 5 -year period.
3. During the next five (5) lease year period (lease years 11 tbmugh
15), 25% of the Captured Assessed Value resulting from Lessee's
real and personal property located on the Riverside Block as of
the and of each year during the 5 -year p rdad, multiplied by the
City's mil rate in effect m the end of each year during such 5 -year
period.
Should the permanent facility open in any subsequent calendar year, the
percentage of the captured assessed value to be used in computing the mavmum
amount payable shall be reduced w accordance with the following chart.
Opening
D to 2009 2010 2011 2012 2013
Years l-5 605/o 45% 30% 15% 0%
Years 6-10 40% 30% 20% 10% 00/0
Years I1-15 20% 15% 10% 5% 0%
EXMBU c
8MRSA &1011(4)
Wye I
MRSA T. 8 SecJ011, License to oparte page I
•9253 8 M.R.S.A. § 1011 2002 and before December 31, 20M
MAINE REVISED STATUTES
ANNOTATED
TITLE S. AMUSEMENTS AND
SPORTS
CHAPTER 31. GAMBLING
CONTROL BOARD
SUBCHAPTER2. LICENSING
AND REGISTRATION
Corneal through the 2045 SecondSpeald
Sort" oJlM1e 122ndUalulome
§ 1011. Limou to operate
The hand aha[[ camarlSoff authority over me
licencing of all petuw participating in the
operation, distribution and maintenance of slot
machitles and slid machme fuilities and over t
reg6hadan of slot machines.
l.Operetor liasse required Apersonmaynot
operate any slot machine in Ne Stake makes the
person has been hourcL a license to operate slot
machme5 by the board A suit machine Tiondar
license authorizes a licensee 0 own or lease slot
machines operated m a licensed gambling guilty.
2. Eligible persons. The bmrd may accept
applicatiorw for a license to operate slot machines
firm any pan= who h licensed in operate a
commercial hack fiat satin the following
ornmoba:
A, The commercial back is lusted at or
whin a 5 -mile radius of Ne canter Of a
ereet ad trek Nconducted bamea
ruing with PUFmumel wagering an mote
Man 25 days during calendar year 2102;
and
B. The operation of slat machines at the
commercial huh is approved by the voters
of the municipality Or which Ne commercial
track to be licerem in located by refinendum
electron held at any time after December 31,
3. Requirements for licence; continued
commercial track litmesure. The board may not
issue a license in operate slot machines to any
Season unless Hmt person demonshatas
compliance with Me qualifications set hub in
sections 1016 and 1019. A p nscn who is graced
a license to operate slot machines mat maintain a
license to operate a commercial track without
Input, suspension or revacetlon for the duration of
Ne shot machine operator's license.
9. Rvimortmad for licenser; agreement with
municipality where slot mut are located. A
slot machine opermor shell enter Into an
agreement with the municipality where the slot
machine opermots slur machines are burned that
Provides for revenue sharing or oNer
compensation, including, but not liln8ed to, a
provision requiring Me preparation, in cultivation
win the municipality, of a momity plan for the
musicians on which Ne slot machines are located.
The revenucsharing agreement must provide Por a
minimum payment in the municipality of 3% of
the total Pact slot machine Income derived from
Me uachums located in Ne municipality.
49281 5. Renewal. Licenses In operate slot
machines may be reuwed upon application for
ewal in accomance with this ubchaprer,
subject to bawd sales.
CREDITM
MA c 687. §AS
<G meal hfamriafs (GM) Refrenw.
Annrmtions,or Table9
HISTORICAL NOTES
HISTORICALANDSTATOTORY
NOTES
2003 UVA01101
Ivor 2003, c 687,1 P 11, pmvMa'
-Sot, 611. twor clivlty The Act applies "contumely
W January 3, 2111"
®2005 ThomsodWat No chain in mutual U.S. Govt wmis,