Loading...
HomeMy WebLinkAbout2006-10-11 06-349 ORDERItem Ro, 06 349 Babe: 6-12-06 Item/Subject Order, AuUmMAng Me Qty Manager to Execute an Amended and Restated Indenture of Initial Lease with Bangor Historic Track Responsible Department: City Manager/Legal In June 2006 the City Council authorizetl execution of an Amended Final lease and Amended Development Agreement between the City and Bangor Historic Track, Inc for development of the permanent facility to be on the Riverside Block, so-called. This Order will authorize an amendment to the Initial Lease. The substantive changes Induce references the most crment documents as exhibits; including the lot behind the Irving Station that BHT has been using, Including a provision ror paying rem far 16 use; making the real estate and personal property tax payment obligations consistent wfth Me Final Lease; and adding a provision For Ilquidated damages. Department Head As noted, these changes are intended to bring the Initial Lease into alignment wiM the terms and conditions of the Final Lease and Development Agreement. I recommend your approval. City Manager Budget Approval: France Director �ea,..prwva.. V� City Solicitor Introduced for c X Passage _ First Reaching Page_ of _ Referral 06 349 EXHIBlr CITY OF BANGOR .F' MTIEj Resolve, Establishing the Position of the City of Bangor in Regard to the Opereon of Slot Machines in Bangor. WHEREAS, on June 10, 2003, the citizens of the City of Bangor approved a referendum that will permit the operation of slot machines at a commercial hamecs racing track in Bangor; and WHEREAS, on November 4, 2003, a state-wide referendum authonang the operation of slot machines at commercial harness racing tracks was approved by the voters of the State of Maine; and - WHEREAS, a[ that time, voters in the City of Bangor also approved the state-wide measure, once again affirming their support for authorizing slot machines In Bangor, and WHEREAS, as a result of these actions, the voters of Bangor and Maine have authoraed an exparebn of the gaming functions baditionalN allowed In the State; and WHEREAS, during 2004, the I-egislahire modified the language of the state --wide measure authorizing slat machines and established the Maine Gambling Control Board for the purpose of developing and implementing dealled regulations governing slot machines in Maine; and WHEREAS, the Gambling Control Board, in conjunction with staff of the Maine Department of Pudic 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 Tack that allow for the introduction of slot machines in association with Bangor Historic Tack, including a provision that allows for the creation of an in[alm gaming facility; and WHEREAS, Bangor Histodc 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 66 349 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 famines voters as expressed In the elections of June and November 2003; and WHEREAS, the redevelopment of Bass Park and the a mstruction and operation of gaming facilities In conjunction with the harness racing track will allow for the continued future of hamess 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 M $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 fadl'ity will generate a minimum of $2.1 million in annual revenue to the City In property taxes, lease payments, and the Citys share of slat 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 in replace the Bangor Auditorium, a project which othernise could not be undertaken given the limited revenue base provkied to local governments in Maine; and WHEREAS, the presence of a state of the art 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 W support over 1,000 jobs; and WHEREAS, in order to proceed with constructing this facility, it will be necessary for the City to incur long-temn debt m be repaid through the revenues the City receives from slot machines; and WHEREAS, it is essential, therefore, that this revenue stream he 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 Stables 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 regulators that would sine 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 Citys planned investment in a new fac ity to replace the Bangor Auditorium and Civic Center, It is appropriate for the City to take a poslbon 06 349 In opposition to any efforts that would have a significant adverse financial impact on Bangor Historic Track and the slot revenues W be received by the CRY. NOW, THEREFORE, BE rr RESOLVED BY THE CrrY COUNCIL OF THE CM OF BANGOR THAT The City takes the position that neither the legislature nor the people of the State of Maine should sponsor, support, or advocate for any charge in taws, rules or regulations the could reasonably be expected to have a significant adverse financial effect on Bangor Historic Track and Its harness racing and slot operations In Me City of Bangor. BE 7 FURTHER RESOLVED THAT City staff Is hereby authorized, acting on behalf of the Bangor City Council, W actively oppose any change In laws, rules, or regulations that multi 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 r- MRTHER RESOLVED THAT The City Council hereby reaffirms Rs position, as expressed in Council Resolve 05-316, adopted on September 26, 2005, calling for a three year moratorium on any signficant changes to the Maine statutes 90vruni g slot machines and opposing any effort to modify these laws and regulations through the citizen initiative and referendum process 1HOMMAL AssipiNroCoumilor Farrington October 11, 2006 w' CITY OF BANGOR (TITLE.) ORDER, Authorisng the City Manager to Execute an Amended and Restated Indenture of Initial Lease with Bangor Historic Track WHEREAS, the City and the predecessor to Bangor Historic Track, Inc. (BHT) entered into an Initial Lease dated October 31, 21103 under which BHT leased a portion of the Oys Bass Park Complex for the purpose of operating a harness racing track and for use as the IocaBon of a gaming facility; and WHEREAS, BHT and the City have entered into a Development Agreement and Final Lease far the permanent gaming facility to be located on Main Street between Lincoln and Dutton Streets, the Riverside Block so-called; and WHEREAS, changes In the Development Agreement and Rnal Lease make ad)sutments to the Initial Lease appropriate; 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 anbRestated Indenture of Initial Lease With Bangor Historic Track, Inc. The Amended Initial Lease shall he In a final form as approved by the City Solicitor or Assistant GN Solicitor. rTTr� 06-369 0 BDEE (TIMEJAu[ho[Sa1ae [he Ci[v Mameei to etecace as emeaaea and aeatacea xmeatare of labial Lease with Emeor Historic Track Neig,wtocouncuor &milAn_ 06 399 AMENDED AND RESTATED BANGOR RACEWAY MEAL LEASE AGREEMENT THIS AMENDED AND RESTATED BANGOR RACEWAY MEAL LEASE AGREEMENT, executed w ofthe_ day of � 2006, by and beamen: CITY OF BANGOR, a municipal corporation orgavzed and existing under and by virsue of the laws of the State of Maine, and having its Principal ofFica at 73 Harlow Street, Bangor, Maine (hereinafter crucial m as "Lessor"); AND BANGOR HISTORIC TRACK, INC, a Maine corporation and the successor b CAPITAL SEVEN, LLC under a certain Bangor Raceway Initial Lease, dated as of October 31, 2003 (hereinafter sometimes referred to as "Lessee"). WITNESSETH: WHEREAS, Lessor and the predecessor and assignor of Lessee on October 31, 2003 atered into a certain Development Agreement for the Development of a Portion of Bass Park, dated October 31, 2003 (the 'TFevelopment Agreement'l a certain Bangor Raceway hdtial Lease Agreement dated October 31, 2003 (the "Initial Lease'), and a certain Indenture of Final Lease dated as of October 1, 2003 (the "Final Lase"), as amended by a carbon Amendment to Development Agreement, Bangor Raceway hdtial Lase, and Indenture of Final Lease dated as of July 5, 2005 (the "First Amendment") and as further as amended by a certain Second Amadmem to Development Agreement, Bangor Raceway Initial Lase, and Indenture of Final Lease dated on or about June 20, 2006 (the "Second Amendment") respectively (the Development Agreemat, and Final Lease as Amended by the First Amendment mM the Second Amendmern shall be referred m herein collectively as the "Original Documents," and capiblired terms not otherwise defined herein shall have the meanings assigned to them in the Original Documents); and WHEREAS, the Lessor is the owner of improved mal property commonly known as Bass Park located on Dutton Street in the City of Hangm, County of Penobscot. State of Maine, and the additional Parking atea (the "Parking Arm") located on City -owned land near Bass Park and adjacent to an Irving Oil Studen, such Packing Area and certain portions of Bass Pads that shall comprise a portion of the demised Trueness hereunder are depicted an ESIIFBIT A annexed 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 parties agree that prior to the commencemam of the tam of the Amended and Restated Final Lease as described tothe Second Amendment, the Initial Lease now in effect, as amended by the First Amendment. should be amended and restated hereby m conform with the legal tams of the Amended and Restated Final Lease, with application to the Premises thaz are defined and described W the Fiat Amendment and Which include Miller's as the site of 9a Temporary Gering Facility (the word "Premises" as used herein shall mem the 'Premise' ss defined in the Fust Amendmem, together with the Parking Area, as defined herein); NOW, 1711EREFO12E, IN CONSIDERATION of the agreements concerning the Premises and the mutual promises, covehents, terms end conditions contawM in this Amended and Restated Initial Lease the parties do hereby agree as follows: ARTICLE I—PREMISES The Lessor, for and in consideration of the nems to be paid and the obligations to be performed by Lessee as hereinafter provided, does hereby demise and lease unto Lessee, and the Lessee does hereby take and hire from she Lessor during the Term (as def ed) and, upon and subject N rhe terms and conditions heminaRer expressed, the Premises together with all unprovemrnrs farrow, thereon and/or thereunder shot all is its present physical condition m may be owned by Lessor, it being acknowledged that improvements situated on the Miller's portion of the Premises are ort and shall not be owned by Lessm. ARTICLE If— MAINTENANCE 1. Lessee shall, m 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 fire and life safety codes. Lessee and Lessor agree to meet, center rad develop a long term plan for the future maimemnce of the bums, said plan to be agreed upon on or before March 1, 2007, fusee and Lessor acknowledge that it may be appropriate and prudent to reduce the number of bums to be retained at Bass Fmk The plan shall include an agreement for the number of barns to be remined and the level, type and schedule ofof the barns. 2. In the interim period between the date hereof and the finalisation of the long term plan referenced in the preceding paragraph, the Lessee shall be responsible for making any end all mplacemenis, repairs and improvements to the bares and related structures and improvements located on the Limited Portion of Bass Pmk Portion of the Premises required in order to manorm the bars and related structures and improvements in the condition in which they exist The Lessor ben comracted for the necessary fire and life safety code repairs identified as of the date hereof Upon completion of such repairs the Lessor shall promptly do a final inspection. Once all such work much; fire and life safety code requirements, Lessee shall thereafter maintain that level of compliance with fire and life safety caries. Provided however, that Lessor or i4 agents or employees shall conduct those required repairs, improvements or replacement; for Which Lessee rv����,awnasenaa Fuge 2 or 30 06 349 is responsible, subject to reimbmsemem by Lessee as set forth below. Lessee shall reimburse the Lessor for all costs associated with such replacernos, repairs and improvements as are approved in writing, in advance, by Lessee based on a general description of the 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 perfommnce of the work provided that Lessee is making a good Nth effort to reach an agreereart with Lessor on individual work orders submitted in the Lessee by the Lessor, and on the long term plan referenced in the preceding paragraph, Lessor shall not sssert a breech of this agreement based upon the maintenance of the bums and related structures and improvements on the basis of a f ime to comply with applicable fire and life safety codes. Upon acceptance sed approval of the long term maintenance pars, any coal all mamurro nce work obligations of Lessor shall automatically Enormous except as may be provided in the approved long term maintenance plan and except for any particular tasks than incomplete, which Lessor shall complete to accordance withthe above. 3. The Lessor, as Landlord (but not in hmimtion of the other powers of Lessor to inspect, enter upon or otherwise invssigme the Premises), and its designated representatives shall have a right of access to inspect the Parking Area and the Limited Portion of Bass Park Portion of the Premises and f undertake repairs, replacements and improvements consistent with the foregoing. Formal inspections of the Limited Portion of Bess Park porton of the Premises may be conducted by the Lessen prior to and fallowing the Harness Racing Season each year during the Tenn. The propose of these inspections is to aid in establishing the long-term maintenance plan specified above. or the event Lessee Nis to make repaits or f keep fire parking Area and the Limited Portion of Bass Park portion of the Premises and all improvements thereon in a safe and sanitary condition and otherwise as provided berein, Lessor shall have the right to enter upon the Parking Area and the Limited Portion of Bass Park Portion of the Premises f purposes of making repairs and to charge the cost of such rennin to Lessee, which charges shall be payable as an Additional Fee hereunder, payable within theory (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 he made in the event Lasses fails to adequately towards and repair the Perking Area and the Limited Portion of Bass Park portion of the Premises in accordance with the tems hereof Lessor shall have the right to enter upon the Parking Area and the Limited Portion of Bass Park Portion of the Prendses for purposes of making repairs coal improve ens m accordance with ted long -team maintenance plan or approve interim work orders referenced in paragraphs (1) and (2), respectively, above. All work will be performed in a maser and 9 times reasonably designed to minimize disruption of Lessee's business operations at such facilities. Lessor shall charge the cost of such repairs and immovements to Lessee up m, but not exceeding, the amounts approved for such repairs and improvements under either the long-term maintenance plan or approved interim work orders referenced in paragraphs (1) and (2), respectively, above. ARTTCLE RL -TERM 1. TO HAVE AND TO HOLD the demised Premises unto the Lessee for an initial ton (the "Term") commencing as of November 1, 2005 and commuing until the Cmnrrencement Date of the Amended and Restated Final Lease (ss defined therein), unless mw„v..pwwearsa.a Page 3 of 30 06 349 sooner nominated. As herein used, the phrase "Lease Year" or "lease year" shall mean each successive period of twelve (12) calendar months beginning November 1, 2005. 2. Lessee shall rot have the right to renew this Amended and Restated Initial Lease. 3. Contemporaneously with the expiration or earlier termination of this Amended and Restated Initial Lease, for any reason whatsoever, the Lessor's interest in the Miller's portion of the Premises conveyed by Lessee to Lessor shall be rewnveyed by the Lessor to the Lessee by municipal quitclaim dead, conveying tide m the land, including any tide the Lessor may hold in and many buildings, structures and improvements located on Ne Millets portion of the Premises thet are owned by Lessor, subject to only such encumbrances and retractions as existed at the time of conveyance m the Lessor by Ne Lessee and any additional encumbrances and restrictions Nat have been created, agreed to or saffaed by Lessee. The Lessor and Lessee shall execme and deliver all necessary, deeds, documends and certificates related to same. The Lessee shall be responsible for all closing costs related thereto, including transfer taxes, recording few, and any other fees or charges related to the roaster. Any reconveyance m Lessee pursuant to this section shall be subject m any rax Items affecting the Premises, and/or the Lessor's right to assert tax liens against the Premises. ARTICLE IY-COMPUTATION OF ANNUAL PAYMENTS Lessee covenants to pay to the Lessor each and every year during the Term for the Premises the following amounts (collectively the "Required Payments"): 1. Rest (A) Subject to the provisions of subparagraphs (B) and (C) below, the Lessee shall pay, without abatement, deferral or artery(except as otherwise provided herein), to Ne Lessen as Rent an amount equal to $104,000 per annum. (B) Effective upon the beginning of each fifth lease year of the Term (each an "Adjustment Date"), the then effective annual Rent shall be increased by an amount equal be Ne greater of the following: (1) five percent (5%); or (ti) the pecomage increase in the "Consumer Price Index for Urban Wage Pastures; and Clerical Workers ('CPI -W)," U.S. City Average, "All Items Index," as published by the United States Bureau of Labor Statistics ("the Index"). Such increases shall be computed from the Covwmcwent Date (or the lasl Adjustment Data, as the case may be) through the that day of each five year period for which an adjustment is being made hereunder. In Ne event that the Index is not then in existence, the parties shall use such equivalent price index as is published by any successor governmental agency then in existenw or if none, then by such nongovernmental agency w may then be publishing an equivalent price index, in Gert of and adjusted to the Index. If the Index shall cease to use the 1982-84 average of 100 as the basis of calculation, or if a substantial change is made is the terms or number of items contained in the Index, the Index shall be adjusted to conform a such change, using such computation thereof, if available, as shall he employed by The United States Depar[mmt of Labor in computing same. It is understood Naz the determination of the a a s+isumlwasstea.s Page 4 of 0& 349 Rent increase in each five-year period ager the first five years of the Term may be delayed until after the notomancesurcund of such five-year period, and in such event, Tenant shall continue to pay Rent at the annual rare applicable to the preceding five-year period until such determination is made, at which time Tenant shall pay, as additional rent, such unpaid Rent as is then accrued. (C) Rent shall be paid mortldy in advance on the fust day of each and every month. Lessee shall pay all rentals herein required, without prim demand therefor, in lawful money of the United Same, at the address of the Lessor as set forth herein or m such other reasonable places as the Lessor may designs. Late payments shall be subject to or interest charge of one pension (10/9) per month to the date ofpaymnt. 2. Revenue Sharing Payments: (A) Lessee dull pay Lessor, without abatement, deferral, or setoff (except as expressly provided herein) revenue sharing equal to the sum of the following: (i) the amonn Lessee is obligated In pay m Lessor as revenue sharing pursuant to B MR.S.A § 1011(4) (the "Section 1011(4) Payment'); plus (ii) an annual amount equal to three percent (3%) of the total Grass Slot Machine Income (as that tum is defined below), minus amounts paid under subsection (i) above for such period. The amount payable order clauses (i) and (ii) above is hereinafter referred to as "Reasons Sharing." Revenue Sharing shall be paid monthly on or before the 30th day following the not of such calendar mouth based upon results of Lessee's operations for the preceding month. For purposes of clarity, Lessee and Lessor acknowledge that the Saxon 10 11(4) Payment made under subsection (i) above is intended to satisfy the minimum revenue sharing requirements of 8 M.R.S.A. § 1011(4), as currently in effect. A copy of 8 M.R.S.A. § 1011(4), as currently in effect is appended hereto as EYMIT B for reference purposes. For the purposes of calculating Lessee's payment obligations under clause (u) above, "Gross Slot Machine Income" means money, tokens, credits or similar objects or things of value used to play a slot machine minus money, credits or prizes paid out to winners related or attributable to the gaming machines manated by Losses 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 Less" to Lessor pmsunt l0 8 MRSA §1036(2)(.1) (the "Section 1036(2)(4) Tax"). The parties acknowledge that notwidvsmvding the requirement of 8 M.R.S.A. § 1036(2)(.J) that payments thereunder are to be made directly by Lessee to Lessor, the State of Maim is currently collecting and distributing the Section 1036(2)(.1) Tax. The parties hereby acknowledge then acceptance of this payment anngerint and agree that to the event the State comes to act as the collection and payment agent with respect to said payments, than Less" will make the required payments to Lessor in accordance with 8 M.RS.A. §1036(2)(n. ryt ,m aoA&i5ar9.3 Page 5 of 30 06 349 (c) (i) In the event of a revision or amendment m 6 MRSA §1011(4) (or mY [nine slaarm(s) controlling the same subject matter), then results in: (a) an increase in the Section 10 11(4) Payment amount or percentage, than the Revenue Sharing payable hereunder shall be automatically increased to such greater amount; and (b) a decrease in the Session 1011(4) payment me= or percentage, then the amount of Revenue Sharing payable hereunder shall remain fixed so that at no time shall the Revenue Sharing payable hereunder drop below the 3% of total Gross Slot Machine Income. (ii) In the event of a revemis or amendment to 8 MRSA §1036(2)(7) (or any Sstare statute(s) controlling the same subject =net), that results in: (a) an increase in the Section 1036(2)(3) Tax, then Lessee shall pay such higher amount to Lessor under Section (B) above; and (b) a decrease in the Section 1036(2)(3) Tax, then the amomt of 1% in effect at the time this Lease is signed shall be payable under Section (R) above: (D) Lessor and Lessee acknowledge that the Saxon 1011(4) Payment and the Sectim 1036(2) (3) Tax are imposed by Maine law requirements as to revenue sharing payments. Notwithimadivg then such amounts sae revenue sharing payments, failure to make payment of such amounts in accordance with the terms and provisions of this Lease shall constitute a violation of this Lease for which all remedies available for nonepayment of reed stintl apply. All oil= amounts, foes, charges and costs payable by Lessor hereuvdea shall be considered Rent or "Additional Rent" - (E) In the event that prior to or during the Term hereof my form or forms of gaming or gambling in addition to and/or instead of slot machine gaming as authorized under currently existing law islare legally enabled in the State of Maine (including but not limited many "game of chance;' "game of skill," or "roulette" such as those terms are defined in 17 MRSA § 33(k2), video poker (other then foams of video poker aheady permitted as of the date hereof through existing legislation governing slot machine gaming), keno, or casino -style gaming (any or all of the foregoing without limitation, being offered m herein as "GMer Gaming"), then, as - a condition precedent to such forms of OtMr Gaming being operated or allowed on the Premises, the Lessor and Lessre shell establish through good faith negotiation the Revenue Sharing applicable m revenues generated from any forms of Other Gaming operated on the Premises. ryam„azsaNq<59]fa.3 Page 6 of 30 06 349 (F) Lesser shall have the right from time to time, upon written demand to LeSsee, to neview, and audit the books, accounts, and reports of Lessee for the purpose of verifying compliance with the provisions of this Article N. My such audit shall be open reasonable advance ounce and shall be conducted in a commercially reasonable fashion so as to minimize disruption to Lessee's business operations. ARTICLE V - USE, OCCUPANCY AND ALTERATIONS TO PREMISES 1. Subject m Section 2(E) of Article W, Lessee shall have the right to use and occupythe Miller's portion of the Premises for any lawful business purpose includin& without limitation, the purposes of operation of the Temporary Gaming Facility. Subject m the occurrence of events of Force Majeure, as that tam is defined below, Lesswe shall, at all times during the Tum, operate a minimum of 475 Gaming Machines at the Temporary Gaming Facility. Lessee shall operate its businesses conducted at the Premises is a reasonably businesslike, careful, clean and reasonably safe mmmu. 2. The permitted use of the Limited Portion of Bass Park portion of the Premises will be for live hamess racing, and uses directly related to the forgoing activities, including simulcasting. and concerts; and, as to the Parking Area, parking for Permanent Gaming Facility pattens and employees m is more fully d=6ri din this Lease. The use by Lessee of the Limited Portion of Bass Pink portion of the Premises is expressly limited by and subject to the retained rights and easements of Lessor set out elsewhere in this Lease, including wiilrout limit Article X 1, Passage and Basement. 3. Lessor, as landlord (but not in limitation ofthe other powers of Lessorto inspect, enter upon or otherwise investigate the Premises), through its agents, shall gave 9 all reasonable times the right, upon reasonable prior written amificafien to the Lessee, to go on and inspect the Premises, any buildings, structures or improvements thereeq with, in the was of the Miller's portion of the Premises, an anthonved representative of the Lessee, and the right of access to utility systems loomed on the Limited Portion of Bass Park portion of the Premises for the purposes of maintenance, repair, correction, or inspection. For purposes of rids paragraph, "reasonable ootifreadon" shall include any actual notification to the Lessee of its agent not less then one business day prim to the date of inspection (except in case of emergencies, when no prior notice is necessary). "Removable times" shall mean any time during Lessee's regular business hours. My such inspections shall be conducted in a manner which does not interfere with the privacy or confidentiality of the Lessee or its customers and shall conform to Maine laws governing the gaming operations operated by Lessee. 4. Consistent with the terms of this Amended and Restated initial Lease, Lessee shall exercise sound business judgment, in the operation of its businesses at the Premises and consider the Lessor's recommendations and advice (although no obligation to accept any recommendations or advice is intended or implied hereby). The Lessor's and Lessce's speck responsibilities shall include, though not necessarily be limited to, the following: a. Neiahborbood Pubibe Relations end Proteeflon. Lessee is medial of the impact of the operation of hamess using, OTB operations, and Gaming Machine nwsroezoawwsaraes Page'! of 30 06 349 activities on the immediate neighborhood and surrounding area. Lessoc agrees to adhere to the following guidelines: i. No live race shall stmt after 11:00 p.m. unless, due to an unf rrueeren emergency such as, but not limited m, loss of power, loss of computer support m ran the mutual ares, facility accident, or loss of ambulance support, races are delayed. In such cireumsmrmes, Lessor shalt make every effort to accelerate post times and to firdsh operating at a reasonable hour, in no use later than 12 midnight. ii. Lessee, m conducting Lessee's activities hereunder, shall rake necessary steps to prevent generation of excessive noise. For this purpose, excessive noise shall mean noise of a volume, pitch or intensity likely to unreasonably disturb the peace of ordinary occupants of residential properties surrounding the Bass Park Complex or Miller's for a material period of time. Lessee shall notify the Lessor of any event that can be reasonably anticipated to disturb the peace of ordinary occupants oftesidendal properties surrounding the Bass Park Complex or Miller's and shall cooperate with Lessor to minim've the disturbance and/or the import thereof. iii. To the best of its ability, Lessee shall ensure that horse trailers and traffic resulting from in; operations will comply with all applicable rules and regulations. b. Pest Control. Lessee shall be responsible for all necessary pest control services. Lessee and m to the Limited Portion of Baas Park portion of the Premises, the Lessor may muamBy agree m a proration ofarmusl pert control services costs. C. Snow Removal. The Lessor shall be responsible for snow removal services at the parking lots (other than those lots or limimd-access portions of lots as are used exclusively by Lessee) and mads located on the Limited Portion of Bass Park portion of the Premises; Lessee shall otherwise be responsible 10 and agrees to perform all other snow and iso removal efforts necessary to its opuatims at the Premises. City shall in no event he obliged to remove mow and ice from any other ars of the Premises. d. Trash Removal. Lessee shall be responsible for all waste and trash removal services, including removal and disposal of manme provided however flat the Lessor in its use of the Limited Portion of Bass Park as set forth m Article , Passage and Enactment, shall be respomible to ensure the removal of trash generated in connection with Lessor's a its licrosces' or permitted users' use of the Limited Portion of Bass Park as provided elsewhere herein. a Licenses and Permits. Lessee shall obtain and maintain all licenses and permits necessary, fur Lessee m manage and operate its businesses. f Fixed Asset Invm[orv. Lessee has taken custody but not ownership of the machinery, equipment, furnishings and fixtures located at and used m connection nw,,wamoamrsa3 Page 0 of 30 06 349 with harness racing operations at the Limited Portion of Bass Perk portion of the Premises at the wmmeveeruent of the Tam. During their period of use, Lessee shall assume all maintavance and repay costs an such meclvnay, equipment, furnishings and fixtures. g. Grass Camara The Lessor will be responsible for all grass cutting throughout the - Limited Potion of Bass Pmk portion of the Premises. For the purposes of 9vs Lease, "force majeure" shah( mean and include all factors, circumstances, transactions, occurrences and other actions beyond the direct control of the Lessee, including without limiting [be generality 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 unavoidable materials or labor or other resources necessary to operate the Temporary Gaming Facility. In no event shall Lessor have any risk, responsibility or obligations for mainteriarne or repair of the Miller's Fiction of the Premises and any improvements or sometimes thereon. ARTICLE YI -LIABILITY AND PROPERTY DAMAGE INSURANCE 1. The Lessee shall provide and maintain the following insurance during the Tenn: (a) In connection with the employment of its employees, Lessee shall pay all applicable social security, unemployment, workers' compensation, or other employment taxes or contributions ofinsmance and shall comply with all federal and state laws and regulations relating to employment generally and to wages, social security, unemployment insurance and workers' wmpemtatimn yr particular. Lessee shall indemnify and hold harmless the Leser from all costs, expenses, claims or damages resulting from any failure of Lessee to comply with these requirements. (b) Lessee shall procure and maintain comprehensive general liability and automobile liability insurance on behalf of itself and the Lessor (as their respective interests may appear) against any damage, loss or 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 'instance, the Lessor shall be named as an additional insured; be provided with a waiver of subrogation in favor of the Leser; and shall be provided with thirty (30) days prim notice of cancellation in material change; and shall be provided, through the Office of the City Solicitor, with certificates of insurance evidencing the above requred insurance. no 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 situated gaming Properties of similar assume, sit and stype. The below amounts of insurance are considered nomad and customary as of the date of this Leve. (c) The amounts of such coverage shall be Initially no less than as follows: Iwn++avlpvVi58]9a] Gage 9 of 30 66 319 1. Employ' Compensation Pm Liability 2. Comprehensive Public Liability to include but not be limited to the following: a) premmes/operamne b) indepmdarc contractor c) personal injury average d) produ dlecmpleted operations e) anaadmal liability 3. Comprehensive Automobile Liability coverage to inductee coverage for: a) ownedhented automobiles b) non-ownedmtomobiles c) hired cars f Stationary $1 Million/$t million $1 Million combined single limit with additional umbrella policy for not less than $10 Million $1 Million combined single limit 4. Property Lsumnce All Risk — Replacement value 5. Commercial Business $50 Million Interruption Should Lessee des'ne as to the homers racing facility (cousisting of a race track, grandstand and stables located on the Limited Portion of Bass Park porion of the Premises), Lessor will entertain a request [hat All Risk Insurance be provided by the Lessor and shall he paid, on an agreed pro -rete basis, by Lessee for those periods in which Lessee has the right in oremy ml/or occupies the Limited Portion of Bass Park portion of the Premiss. In the event of loss or damage to my portion of the Premiss (other than b new structures constructed and owned by the Lessee) due to fire or other casualty occurring during Lessee's use or occupancy, or occurring after Lessee's use or oaupmcy as a result of the negligence of Lessee or Lessee's agents, serrations, contractors, m employees, Lessee shall to the extent my such loss was not caused by the negligeme and/or intentional misanduct of the Lessor, its agents, seivmts, Commitment, or employees, reimburse to the Lessor my portion of the Lessor's cost of replacing rynnn¢516MM54199.3 Page 10 of 30 06 349 or repairing the particular facilities concerned that is not reimbursed by applicable fire or all risk insurance. In the event rim the Temporary Gaining Facility portion of the Promises shat) be dwhuyed by fire, other casualty, [or envy event of force majerre] during the term hereof, Lessee shall confirm to pay the actual Revenue Sharing due to Lessor for any period the operations of the Temporary Gaming Facility are not open to the public and at full capacity as a result of fire or Unit casualty. e. Each insurance policy procured by Lessee shall affirmatively state that it will not lore invalidated because the insured waived its rights of recovery against any party prior to the occurrence of loss. ARTICLE VII - HAZARDOUS WASTE 1. Less hereby covenants and agrees that A shall not, during the Term pemarnently place, worse m be placed, deposit or discharge any humorous waste upon the demised Premises, or upon any, other portion of Lessor's property, and farther expremsly agrees that it shall indemnify Lessor from any and all mats, expense or liability, of whamver kind or nature, incurred by the Lessor in detecting evaluating, removing, treating, disposing of of otherwise responding to any hararmus waste placed or deposited in violation mdus paragraph. 2. Less hereby coverats and agrees that it shall not, during the Term violate any local, state or Federal regulation, radiative or statute pertaining in Sarcomas waste or hazardous material and lurcher expressly agrees that it mail indemnify Lessor from my and all costs, expose or liability, of whatever kind or owns, incurred by the Lessor fox any such violation of this Paragraph 3. Such costs shall be deemed to include, without limimtion, Lessots costs of defending any suit filed by any poison, entity, agency, or govemmmml authonty; paying any Imes imposed in extraction with such suit; paying any judgments or otherwise setting any damage claims; complying with any order by a court of competent jurisdiction directing the Lessor to We remediai action with respect to such waste; and of all associated anomey's fees and costs. 4. For the purposes of this Article, the term "huardoas waste" shall be deemed to include every substance now or hereafter designated as a hazardous waste under any provision of Sate or Federal law. Lessee's obligations under [his Article shall be deemed to survive the expiration or nomination of Us Lase. 1. General Indemnification - Lessee shall defend, indemnify, and hold Lessor, and its inhabitants, officers, employees and agents completely hmmleas from ant against any and all liabilities, losses, suits, claims, judgments, fmw or demands arising by reason of injury or death of my person or damage In any property, including all reasonable costs for investigation and defense thereof (including but not limited to attomeys' fees, court costs, and export wimess few), ryvsinassryY+DOSarPB.9 Page 11 of 3D 06 349 of any nature whatsoever arising out of or incident to the use, occupancy, conducS or management of the premises or the acts or omissions of Lessee's officers, agents, employees, convectors, subcontractors, licensees, invitees, unless such injury, death, or damage is caused by the negligence and/or intentional misconduct of the Lessor and/or its agents or employees utilizing the Premises and/or portions thereof by license as herein provided. The Lessee shall give to Lessen reasonable notice of any such claims or actions. The Lessee stall also engage counsel reasonably acceptable to Lessor in carrying out its obligations under this Article. 2. Lessee's Waiver of WorkersCompensation Immunity - The Lessee hereby expressly agrees that it will defend, 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 mising out of the Lessee's activities under this Avr m k d and Restated Initial Lease; provided hoosver that Lessee's aforesaid indemnity and hold homeless agreement shall not be. applicable to any liability based upon the negligence matter intentional misconduct ofthe Lessor and/or others utilizing the Premises and/orportioas 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 in regard to such claims made or asserted by the Lessee's agents, servants or employees. Subject to the limitations berammove aunt forth, the ivdenrufication provided under this paragraph shall extend to and include any and all costs incurred by the Lessor to answer, investigate, defend and same all such claims, including but not limited m the Lessor's rusts for attorneys fees, expert and other witness fees, the Post of investigators, and payment in full of any and all judgments rendered in favor of the Lessee's agents, servaros 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 barmless the Lessee from and against all claims and actions, and all expenses incidental to such claims or actions, based upon or asiong out of damage as property or injuries to persons or other tortious acts caused or contributed to by the Lessor or anyone acting wader its direction or control or in its behalf in the course of the Lessors activities under this Amended and Resorted Initial Lease and/or others utilizing the Premises and/or portions shared pursued to the rights reserved by the Lessor, provided that Lessors of said indemnity and hold baroness agreement shall not be applicable to my liability based upon the nephimaw 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 under this Amended and Restated Initial Lease. 4. Thel.essor hereby expressly agrees that it will defend, indemnify and hold the Lessee harmless from any ed all claims made or asserted by Lessor's agents, servants or employees arising out of Lessors activities under this Amended and Restated Initial Lease; provided however that Lessor's of said indemnity and hold mirthless agreement shall not be applicable W may 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 worse of the Lessee's activities under this Lease. For this purpose, Lessor hereby expressly waives any and all immunity it may have under Maine's Workers' Compensation Act in regard to such clavas shade or asserted by Lessor's agents, servants, or employees subject to the limitations hereinabove set forth. The indemnification provided under this paragraph shall extend to and include any and all costs Uwni¢.a1M1WV05796.3 Page 12 of 30 30 349 incurred by the Lessee to answer, investigate, defend and settle all such clabns, including but not limited to the Lessee's costs for attorney foes, expert and other witness fees, the cost of investigators, and payment in full of any and all judgments rendered in favor of Lessoi s agents, savants or employees against the Lessee in regard to claims made or asserted by such agents, servants, or employees. 5. The indemuification and hold barmless provisions of the Lessor contained in this Amended and Restated Final Leese, notwithstanding anything to the contrary in this Annotated and Restated Final Lease, shall not be considered to, and shall not, expand or create liability on the pan of de, Lessen to 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 Tort Claims Act as it is cur eady in effect or is in the finme from time to time modified or amended. Any and all obligations and/or exposure of the Lessor under any indemnification obligations contained herein, and any damages related thereto, are subject to the foregoing limitations, and are mother subject to, limited by, and shall not exceed the greater of (i) the legal hams of its liability, (u) applicable insurance policy coverage limits under any insurance policy the municipality is mavrtshdng (or required to maintain) at the time of such claim, or (ifi) in the even of an amounted loss, or any loss with respect to which coverage is denied coda the insurance referenced in Section 6(c) below, Nen a loss limit of $5 million in the aggregate. 6(a) Notwithstanding anything herein to the conrtary, Lesasa agrees that Lessor's liability for any judgment against Lessor shall he limited in amount to $5 million in the aggregate during the life of this Final Lease, it being agreed that Lessor is not and shall not be personally, liable her any judgment in excess of such amount. The provision contained in the foregoing someone shall not limit any right that Lessee might otherwise have to obtain an injunctive relief against Lessor or obtain recovery some Users insmers, if any, or any other action not involving the liability of Lessor. Under no ciroumstancee shall Lessor ever be liable for indirect or consequential damages. (b) The provisions contained in subsection (a) above shall not limit any right that Less« might otherwise have to obtain an injunctive relief against Lessor or obtain recovery against Lessor's iaraers, if any, or any other action not involving the liability of Lessor. (c) The Lessor shall take out and maintain during the Term, comprehensive general liability insurance in an annum not las than $5 million in the aggregate, covering risks sociated with its ownership and operation of the Premises and any other activities or oecunences conducted on or in connection with the Premises only in wmection with liability to Lessee through subsections 3 - 5 of this Article VIII. Upon request by the Lessee, the Lessor shall provide Lessee with a certificate evidencing such insurance is is full force and effect. (d) In the event that there is a claim giving rise to an indemnity, obligation on the pan of Lessor under Us Article VIII, any amount recovered by Lessee from Lessor or paid by Lessor up to the $5 million aggregate limit set forth above shall automatically reduce the indemnity obligations of Lessor under Article VIE of a cerlaio Amended and Restated bdenmre of Final Lease signed by the parties hereto and dated as of June 23, 2006 (the "Final Lease"). The $5 million aggregate limit hereunder and order shall therefore be cumulative, and Lessor's ry IaS moriwon.3 Page 13 of 30 06 349 combined and total liability hereunder and under the Final Lease shell in no event exceed the $5 million aggregate limit, notwithstanding anything else to the country in the Final Lease, Article VII of which shall be considered in part amended hereby. ARTICLE IX -DAMAGE BY FIRE OR OTHER CASUALTY If during the Term hereof the buildings and improvements on the Premises shall be destroyed or damaged in whole or in part by fire or the elements or by any after cause whatwever, then, Lessee (if the affected Premises sue not located at Bass Park) or Lessor (if the affected Premises are all or a portion of Bass Pah) shall cause the same In be reported, replaced or rebuilt as nearly as practicable to the condition existing just prior a such damage or destruction, within a period of time which, order all prevailing chromosomes, shall be reasonable. Lessee or Lesm, as the case may be, shall repair, repines, 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 i naso a proceeds received as a result of the casualty causing the damage or destruction. Prim to the commencement of army work necessary to repair, replace or rebuild the buildings and other improvements, the rebuilding Party shall furnish the other with complete plans and specifications, if any, for such opening, replacing and rebuilding, which plans and specifications shall meet with the reasonable approval of the other, and with the approval of any governmental board, bureau or body than exercising jurisdiction with regard he such work Lessor shall not be =filled to nor chum fight in any proceeds from any casualty insurance policies carried for any buildings and improvements located on the Miller's porton 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 any applicable law, statute, ordinance, regulation or requiraven[ of the federal, mate or mmdcipul governments. During the course of such repairing, replacing and rebuilding, Lessee shall tarty for the protection of Lessor, such liability insurance in such amounts as may from time to time be reasonably required by Lessor. Leasee shall not be entitled to any abatement or reduction in Rew during the period of such nomination or rebuilding. In the event that the Temporary Gandng Facility portion of the Premises shall be destroyed by fire or other casualty during the num hereof, Lessee shall continue to pay sound Revenue Sharing, 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 State and Federal rules, regulations, or laws. ARTICLE XI -TAXES 1. Subject to the provisions of Paragraph 2 of Article Xl hereof, the Lessee agrees to pay, when due, any and all taxes and/or assessments, fees or charges of any kind whatsoever, as may be imposed during the mum hereof, or any extension of the term of this Lease, by any rynn�xaaW0V59]9aa Page 14 of 30 06 049 governmental authority upon the demised premises, mcluding Lessee's leasehold interest therei , my buildings, structures, and improvements thereon, and any other taxable real or personal property interests m my tenable pareass t property located thereat (including Gaming Machines). It is expressly agreed that such taxes and assessments shall include all amounts levied as real estate and personal property taxes upon We demised premises and associated personal property by the Lesser acting in its governmental camety. Lessee further hereby werves my and all rights to seek or request privileges of exemption from property taxation on the Premises, or Lessee's leasehold interest therein, or on my buildings, structures, or improvements thereon, or on my taxable personal property located thereat swung due m public ownership of the Premises m such property by the City of Ibeagor, provided, however, nothing herein shall or my way prohibit the Lessee from exercising its rights under the law W contest the valuation of such property interests for property tax purposes, or the charges or fees related to the assessment of taxes om such property, or the exercise by Lessee of my other legal rights to which Lessee is entitled under applicable law with reser t to property renes generally. 2. Anything on Paragraph l of Article XI hereof m the commy notwithstanding Lessee's obligation W pay personal property and real estate taxes under the Amended and Restates Imtud Cease shall be determined] m accordance with Means asv. Should the Lessee disagree with the emrem stressed value established by the City Assessor, Gam time W time, Lessee slash have fire time rights to challenge and appeal my such assessment(s) as applicable to privately owned property; and for such purposes the Lessee shall be treated in the same n mner as my other m ma of private property in the City Lessee shall at all times be responsible far 100% of my and all personal property taxes applicable W personal property maned by or hs possession of Lessee and located on the Premises. In no event shall fire City be considered in defaWt hereof, or otherwise be liable for my action or position taken by the City assessor that may be inconsistent with the terms of this Amended and Restated Irdtial Lease; provided, however, that no action by the City assessor shall in my way abet, amend or limit the Lessee's rights hereunder, which shall be embreeable as an agreement between landlord and tmmt separate from my moon or position taken by me City assessor. A von -binding eadmafe of current taxes is included at EXHBIT C attached hereat for reference only. In the event thin, during the tern bereof, Lessee shall receive a determination from me City Assessor or from a court of competent jurisdiction that all or a portion of the Premises is exempt from mention. clam the Rent payable hereunder shall be aummadcally immersed by the amount of money otherwise payable as real estate taxes w the absence of such de[ermivation as masmably calculated by the City (which calculation shall be subject to Lessee's rights W dispute the valuation ofthe Premises and Lessee's personal property and the exemise of my other legal rights and remedies related to property taxation on the more basis as though the Premises were privately owned property). prime W pay such increase in Read attributable W this section shall cons itme a breach of and default order this Lease by Lessee on the same basis m my other failure to make timely payments hereunder. For purposes of calculating Lessee's obligation W pay real property, and personal property tones related to the Limited Portion of Bass Park, LessoT and Lessee hereby agree that EXHIBIT C mflects the shared use of that portion of the Premises between Lessor and Lessee, and that Lessee shall pay the real property taxes levied on that portion of the Premises based upon the percentages set fact in EXE[MIT C. rymn"asaWm59i99.3 Page 15 of 30 06 349 ARTICLE XR--NONDISCRIMINATION Lessee for itself, its personal reuenumatives, successors in interest and assigns, and as part of the coasldemtiora hereof, does hereby covenam and agree as a covenant raving with the land that (1) an person or group of persons shall be excluded on the grounds of race, color, or - national origin fiom participation in, denied the bevefits of, or he otherwise subjected to d urporinedon in the use or occupancy of said demised Premises and (2) in the construction ction of all improvements, buildings, structures, on, over or under such land and the furnishing 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 benefits of, or be otherwise subjected to unlawful discrimination. ARTICLE XIII - COVENANTS OF QUIET ENJOYMENT The Lessee, subject to payment of the Rent, and observing, keeping and performing ell the terms and provisions of the Amended and Restated Initial Lease on its part in be observed, kept and performed, shall lawfully, peaceably and quietly have, hold, occupy and enjoy the demised Premises during flu Term hereof without hindrance or rejection by the Lessor or any other persons, subject to the terms and limitations of this Lease and subjaY to the easements and other matters of record affecting the Premises. ARTICLE XIY-LIENS The Lessor and the Lessee agree that each will promptly discharge (either by payment or by filing of the necessary bond or otherwise) any mechanics', materialmen's or other how against the demised Premises, any buildings, structures or improvements thereon, which liens may arise out of any payment due for labor, services, materials, supplies or equipment which may have been famished to or forthe Lessor or the Lasa, respectively. ARTICLE XV -1TCLE TO BUILDINGS, STRUCTURES, AND RVIPROVEMENTS Title to the buildings, structures and improverments constructed on the Miller's portion of the Premises by the Lessee either prior to or during the Teter (collectively the "Tenant Improvements") shall be in the Lessee, and during such Tenn, the Lessee shall have the right, at its sole expense, to demolish and remove, improve or alter any and all Tenant Improvements and other personal property erected or located an the demised Preanises, provided that such right SUI not be construed to permit Lessee to terminate operations of the Temporary Gaming Facility m the Premises many time other man as is specifically not out elsewhere m this Lease. All such Tenavt Improvements shall conform to the Developm art Agreement, es amended Subject to the provisions of Article XVI below, Lessor shall retain title to all buildings, structures, improvements, facilities and irumalladons curready located at Bass Park, including the gran istund and track and Parking Area. Mosrna+l[M1m5nNO3 Page 16 of 30 OB 349 ARTICLE XVI -REMOVAL OF PROPERTY 1. Upon the termination or expiration of this Amended and Restated Initial Lease for any moon other then the opening of the Permanent Gaming Facility and the commencement of the AmerWed and Restated Fund Lease, Lessee shall have the fight to remove from the Limited Portion of Bass Park portion of the Premises all of its personal property and my other installations, fixtures or other property installed or built by Lessee. Any of Lessee's property not removed from the Limited Portion of Bass Pork Portion of the Premises within sixty (60) days man termination or expiration of this Lease may at the election of Lessor become the property of the Lessor to be disposol of in such a way as the Lessor may deem fit. Any damage to the land or the buildings of Lessm caused by Lessee's removal of any of its property shall be promptly repaired by Lessee such drat the lend or buildings of Lessor shall be common az nearly as possible to i6 condition a[ the comormc onem of the Amended and Restated Initial Lease, ordinary, wear and [ear excepted. 2. In the event Lessee shall fail to remove any such property from the Limited Portion of Bass Park portion of the Premises within sixty (60) days from the daze of temdnatioa or fecal exprafion of this Lease, Lessor shell, subject to the terms and conditions of any written agreement executed subsequent to the date hereof by the Lessor and Lessee with respect to any such property, be entitled to recover from the Irssee Lesams reasonable costs incurred in removing or disposing of such property. in such event, there shall be deducted from Lessor's cosh the fair value actually realized by the Lessor man the sale, use or other disposition of the property concerned. 3. The provisions of Sections 1 and 2 above shall not apply to any portion of the Premises reconveyed to Lessee at the expiration or earlier termination of this Amended aM Restated Initial Lease. The foregoing provisions And survive the expiration or termination of this lease. ARTICLEXVII - Subject to the provisions contained in Article XVI, the Lessee shall, upon the tesminatinn of this Amended and Restated bdfial Lease or expiration of the Term, surrender the quiet and peaceable possession of the Premises, excepting the portion of the pravises reconveyed or Lessee at the expiration or earlier termination ofdds Amended and Restated Initial Lease. ARTICLE XVRI-TERMINATION (i) Lessee stall M to core any default in the performance of airy of its non -monetary covenauM agreements or obligatims hereunder withim ttirty (30) days of written nofics of default from Lessor plus, so long as Lessee has diligently commenced cure within said thirty (30) days and has been unable incomplete some within said thirty (30) days, such additional time as is reasonably necessary to orae with commercially, awni�noihwaserro.s Page 17 of 30 06 349 reasomAde efforts Chis subsection (i) shall not apply to defadns or breaches specifically addressed elsewhere in this Article); on (ii) Lessee shall fail to cure my monetary default (e.g., failure no pay Required Payments, Rem, Revenue Sharing, Section 1036(2)(.J) Tax or other charges hereunder) or my default m its obligation to maintain or provide insurance within fiftecn (15) business days of written notice thaeot or (ui)Lessee shall make my assignment for the benefit of creditors or shall apply for or cement to the appointment of receives for themselves or my of their property; or Lessor shall be adjudged an mvolmtary bankrupt, or a decree or order for reorganization under the feded bardamacy laws as mw or hereafter amended, or under the laws of my sure, shall be counted against Lessee, and my such decree or judgmeua or order shall not have been vacated or set aside within sixty (60) days from the date of the entry or granting thereof, or Lessee's leasehold 'interest hereunder shall be taken on execution; or (bd Lessee falls to receive timely a live acing book license (including the assignment of racing days) issued by the Commission prior to the commencement of my annual harness racing season during the Term hereof, or (v) Lessee abandons or otherwise ceases its operation of at least 475 Gaming Machina for a cumulative hand period of more them thirty (30) days during the Tenn hasof, or (wi) Lessee fails M receive a renewal of or otherwise loses, the gaming license required for Lessee to legally operate Gaming Machines a the Partnavmt Gaming Facility. Then, subject to the spec. rights of leaders to Lessee under Article = hereat bone nbstavdmg my forbearance with maPect to my former breach of this Arnended and Restated Initial Lease or waiver of the benefit hereof or consent in any former instance)m my of such cases Lessor may lawfully, immediately and at my time thereafter, and without further notice or demand, and without prejudice to my other remedies, enter into and upon the Premise or my pan thereof, m the name of the whole, or mail a notice of termination addressed to Lessee at the premises, and upon such entry or mailing this Amended and Restated Initial Lase shall immediately tomirow., To addition M the foregoing and nor in lieu of my of Lessor's rights and remedies hereunder or at law or in Nulty, if a petition is filed by Lessee for relief under Chapter Il of Title I I of the United States Code, or for reorganization or aangemmt Under my Provision of the Bankruptcy Code as then in force ant effect or my involuntary petition under any provision of the Barmkmptcy Code is filed against Lessee and is not dismissed within sixty (60) days thereafter, then ou either of such cases this Amended and Restated wtid Leine shall a the option of Lessor temtlnde upon notice oftermimationto Lessee. Mv�nccsaNJe<59]aB.] Pages 18 of 30 06 349 (b) Further, or case of any termination of ths; Amended and Restated burial Leese under this Section, and votwiNstaMing any entry or orentry by Lessor, whether by summary Proceedings, assassination, or oferwise, Lessee, as of fie date of such termination, (i) shall unmediately Pay in Lessor eu damages all amounts due to Lessor prior on and including the date of termination, (it) shall be liable for read pay to Lessor the entire unpaid rental and all other balances due under this Amended and Restated Initial Leese for the remainder of the Nen. effective Tenn, the parties agreeing that as to this specific category of renal damages under Nis subsection (it), such damages will be difficult to determine with certainty and as such the parties have agreed thin in the event of such estimation by Lessor, the amount of damages due under this subsection (ii) shall be liquidated at an amoort equal to the net Asan value of (I) the number of years (including any fractional portion of a partial year) remaining in the then - effective Tam of this Amended aM Restated buttal Lease after the due of ter amation multiplied by (2) $475,000, applying a discount rate equal to the Prime Rate then in effect as reported in the Wall Street Journal under the heading "Money Rates — Prune Rate,'snd (ui) shall additionally be liable for and pay to Lessor, as damages for breach of this Amended and Restated Initial Lease, any other amounss and categories of damages that Lessor is not expressly prohibited by law h, obtain or Potent from Lessee. In addition to the foregoing and notwithstanding any other damages or payments due from Lessee order Nis Amended and Restated Initial Lease or m law or in equity, Lessee agrees Nm, m the event of its breach of dos Amended and Restated formal Lease, it shall he liable to Lessor for Lessor's reasonable attoneys' fees and watt costs related to or arising our of Lessee's breach or default of its obligations under this Amended and Related Initial home, in the event of termination and oNerwise (including without maximum any anoneys' fees incurred w number or intervene in any bankruptcy procceding involving Lessee). (c) Nothing harm contained shall limit or prejudice the right of Lessor w move for and obtain is pilings for bankruptcy or insolvexy by reason of the termination, an amount equal to the maximum allowed by any smote or role of law in effect at the time when the damages are to be moved. (d) NatwiNmavdmg anything m this Amended and Restated Initial Leese to the conmuy, and in addition to and nm in lieu of anything specifically set forth bemin but wiNout duplication ofsmomVs paid as damages hereorda, Lessor shall be entitled to all remedies available to Lessor at law and equity, including, without limitation the remedy of forcible entry and detainer. Lessee, for ifself, and in successors, and assigns hereby lmowmgly, willingly, and voluntarily waives any and a0 rights arch party may have to a trial by jury m any forcible entry and defamer action and any proceeding to collect any money or payments due from Lesaee under this Amended and Restated heads] Lease brought by Lessor, or Lessor's successors and/or assigns. (a) A default by lessee under the Development Agremasat shall be a default hereunder. Nothing set forth in this Article XVIII shall limit Lessee's rights to recoweyance order Article III, Section 5 hereof. Notwithstanding anything else herein to the contrary, however, such reconveyance obligation shall not chartists or negatively affect any claims for damages by rym,nmaauVW58RB3 Page 19 of 30 06 349 Lessor nor shall it holt remedies possessed by Lessor related to Lessee's breach of this Amended and Restated hdtlal Lease or any claim by Lessor affecting the Premises, including but not limited to tan hen claims. ARTICLE XIX- ATTORNEYS' FEES The Lessee shall reimburse the Lessor for reasonable atiomeys' fees incurred by Lessor in the event the Lessor employs an attomey to collect any rents due hereunder or Odwwim enforce its rights hereunder, and the Lessee is in material breech of my of the terms, conditions or covenants on the part of the Lessee herein contained, if, but only if, Lessee fails in promptly correct the violation of any term, condition or coveoard after receipt of notice that it is in violation thereof The term "reasonable attorneys' fees" as used is the preceding sentence shall include rhe reasonable aRonted was of services provided by Lessor's solicitor or assistant solicitor. ARTICLE XX -ASSIGNMENT, SALE AND SUBLETTING 1. AssimabilbA (a) Lessee shall rat assign or sublease its rights hereunder or under the Original Documents without the prior written consent of the Lessor, winch consent shall not be unreasonably withheld or delayed. For purposes of this section, any sale, bamsf or other disposition of fifty one percent (51%) or more of the currently outstanding common stock of the Lessee, whether effected through a sale, merger or Other consolidation or reorganiution, to any party not owned or controlled by Pam Natioasl Gaming, Inc. ("PNG"), whether effected through a single transaction or through a series of relined mnsactlons, shall be deemed an assipmme st requiring rhe Lessor's consent The Lessor may, not withhold its consent in an assignment or sublease m my party approved by the State of Maine Gambling Control Board pursuant to Title 8, section 10t of the Maine Revised Statures Annotated and licensed to conduct the contemplated commercial opemti ms; a the Permanevt Gmuing Facility. Excepted from this section (a) is my existing corrtracmal commitments by Lessee or PNO under the agreements grooming the acquisition of the Lessee from PNG's predecessor in interest or its related entities. (b) The Lessor's execution of this Amended and Resected Initial Lease shell not be construed to be a waiver of my rights the Lessor bus under contract or future laws to participate and/or intervene in any licensing or permitting process before such Board or my other boards or bodies with licenaing or permitting authority related to the subject matter of this Amended and Restated Initial Lease. (c) At the effective dare of the assignment or subletting, and at the time when Lessee requests Les res written moment thereto, this Amended arta Restated Initial Irene must be in full force add effect, without default on the part of Lessee or any Gunrunner. (d) My assignment of [his Amended and Rescued Initial base shall transfer to the assignee art of Lessee's right, fide, interest and obligations in this Amended and goaded Initial Lease and all of Lessor's estate or interest in the Premises. rttnm.a 5979aa Page 20 & 30 96 349 (e) The proposed assignee or subteomtt shall be of the same or better fmmcial capacity as the Lessee and its ownership, and shall otherwise be of suitable fitness and character to conduct the intended operations a the premises. An assignee or subtenant shall he deemed 0 have firtancut capacity and be of suitable fitress and character to conduct the intended operations at the Premises if it has received in final and unappealable form all necessary state licenses and permits (including without Nutation the Gaming Pounds). (f) Except as provided elsewhere heran, following a permitted assignment, the Lessee shall no longer have any liability to responsibility for the performance of all Lessee obligations tatter Us Amended and Acetated Inttiel Lease. (g) Should Lessee desire to assign this Amended and Restated Initial Lease or sublease any portim of its iruerest in the Premises, Lessee shall give Lessor written notice of its intention to do so at least story (60) days or more before the effective dare of such Proposed memento to or subletnvg. (h) Each assignment and sublease, to the cannot of the Premises subleased, shall be accomplished by an inear anent in writing whereir the assignee shall agree m writing for the benefit of Lessor to asstame ant be bound by, and be perform the tarns, covenants and conditions of this Amended and Restated Initial Leese be be dme, kept and Imported by Lessee. Said instrument shall otherwise be m form and substance acceptable to Lessor. ARTICLE XXI-FDVAPICING AFFECTEVG DEMISED PREMISES (a) f.essee may from time to time without the consent of Lessor hypothecate, mortgage or pledge Lessee's leasehold interest and estate and Lessee's rights hereunder to an institutional lender, as Mortgagee, m security for payment of my indebtedness of Lessee. As used in this Lsase, the term "institutional lender" or "insdtutloual mortgages" shall mean a commercial bark or trust company (whether acting on its own behalf or th my fiduciary capacity), an insummce company, a credit moan, a pension trust or pension fund, a real estate investment trust, and any other corporation or maty which is subject an supervision or regulation by the Comptroller of the Currency of the United States or by the banking or insurance departracm of my state. (b) When giving notice to Lessee with respect to my default hereunder, Lessor shall also serve a copy of each notice upon any Mortgagee who shall have given Lessor written notice specifying is name and address. In the even Lessee slmil be M default in performance of any of the tents, covenants, agreements and conditions of this Lease on Lessee's part to be performed, otber than a default by Lessee in the payment of money, Mortgogee slut have the right, within a grace period having the same duration as the Some pericd available to Lessee f curing such default, after the expiration of the grace period available to Lessee for curing such default, to mrs r make good such default or to cause the same to be cured or made good whether the same consists of the failure of payment m the failure to perform my other obligation, and Lessor shall accept such pacharr nom m the part of any Mortgages as though the same had been done or performed by Lessee. In case of a demo t by Lessee in the payment of money, Lessor will take no action to effect a nomination of this Lease by reason thereof urdces such default has continued Page 21 of 30 06 349 beyond twenty (20) days after Lessor shall have served a copy of such notice neon Mortgagee, it being the mMm hereof and the understanding of the Patties that Mortgagee shell be allowed up to, but not in excess of, twenty (20) days afar the service of such notice m care any defeuh of Lessee in the payment of Rent or in the making of any other monetary payment required under the tams of this Lease. for tate of any other default by Lessee, Lessor will take no action m offs[ a temdnsion of this Lease by reason thereof unless such default has continued beyond a period of thirty (30) days ata the service of such notice to core any such default of Lessee. During any period that Mortgagee shall be N possession of the Premises and/or during the pendency of any foreclosure proceeding and until the Lessee's interest in this Lease shall tenacious, as the case may be, Mortgagee shall pay or cause to be paid the rent specified herein and all other charges of whatsoever nmwe payable by Lessee hereunder which shall have weed and which are would owing said possession and/or pendency and which will thereafter arerue following the acquisition of the leasehold estate by Mortgagee or its designee, either as a result of foreclosure or acceptance of an assignment in lieu of foreclosure. Mortgagee shall also, as promptly as possible, cause all defaults hereunder to be cured and all unperformed cewmants of Lesson to be performed (tum occurred or were unperformed, as the case may be, during said possession and/or pendency). Any default not susceptible of being cured by Mortgages other than rent soul payment defaults (for example, without limitation, badauptcy or insolvency of Lessee) shall be, and shall be deemed to have been waived by Lessor upon the completion of the foreclosure proceedings, or acquisition of Lessee's interest in this Lease only, as to any purchaser (which may, but need not be, Mortgagee) at the foreclosure sale. Nothing herein contained shall preclude Lessor from exercising any of Lessor's rights or remedies with respect to any other default by 1,enew many true, subject to the rights ofMortgagce as heroin provided. All notices by Lessor to Mortgagee shall be deemed to have been validly given by the earlier of actual receipt by manual delivery or teletramormssion with written confirmation of receipt or one (I) day after depositing with an agent of a reputable overnight courirn service or three (3) days after being mailed by registered or certified mail postage prepaid, to Mortgagee at the following address, or a such other address as shall be designated by Mortgagee in written notice to Lessor (as to any notice to Mortgagee with regard to this Lease; such notice shall not be considered valid if seat by electronic communication, e.g, e-mail). (c) Without the prior written consent of Mortgagee, neither this Lease not the leasehold estate created by this Lease shall be surrendered, modified or amended and no agreement purporting to modify or amend this Lease without such consent shall be valid or effective. of Upon any assignment of this Lease by any owner of the leasehold estate whose interest shall have been acquired by, through or under any Mortgage or from any holder thereof, the assignor shall be relieved of any further liability which may accrue hereunder from and after the date of such assignment, provided than the assignee shall execute and deliver to Lessor a recordable instrument of assumption wherein such assignee sball assume and agree to perform and observe the covenants and conditions in this lease contained on Lessee's part to be perfovned and observed it being the intention of the Parties that ones Mortgagee shall succeed W Lessee's interest hereunder any and all subsequent assignments (whether by Mortgagee, any purchaser at a foreclosure sale or other transferee or assignee) shall effect a release of the mvoes.awwsarsas Page 22 of 30 06 349 assignor's liability hereunder. Nothing contained herein shall lee deemed b release the original Lessee of its liabilities hereunder, without the prior written consent of Lessor and Mortgagee. (e) A smMmd mortgagee clause naming Mortgagee may be added le any and all insurance policies required to be camied by Lessee hereunder on condition that the insurance proceeds are to be applied in the mmmer specified in this Lem v and the Mortgage shall so provide; except that the Mortgage may provide a roamer for the disposition of such pro a ds, if my, otherwise payable directly le Lessee pursuant to me provisions of Us Lease. (O In the event that at my time instanter Lessee seeps to mortgage its leasehold estme, Lessor agrees to arnend thus Lease from time to time to the extent reasonably requested by an instmitimal lender proposing to make Lessee a loan secured by a fins lire upon Lessee's leasehold estate in and to the Premises under this Lease, provided that such proposed amendments do not (i) result in my changes in dre Rent, Term, or other payments due to Lessor payable by Lessee under this Lease or (u) expand the obligations of Lessor; or (in) materially and adversely affect the rights of Lessor hereunder or its interest in the Premises. ARTICLE XXII - AUTHORITY TO ENTER INTO AGREEMENT 1. The Lessor hereby represents and warrants that it has taken all necessary procedural and legal steps as required by federal, state and local laws and regulations for the purpose of authorizing the execution of this Amended and Restated hutial Leese and that execution of this Amended and Restated Initial Lease by the City Manager waders this Amended and Restated Initial Lease a valid and binding document on the pan ofghe Lessor. 2. Lesser hereby represents and warrants tbat it has taken all necessary procedural and legal steps an required under all state, local and federal laws and regulations, and ed necessary corporate action to auNoriu the execution of thus Amended and Restated Initial Lease by its undersigned corporate officers and that upon such execution this Amrnded and Restated Initial Leam is a valid and binding document on the part of We Lessee. ARTICLE XXHI - WAIVER Failme on the part of either party hereto to complain of my action or non -action on the part of the otlu:r party no matter how long the same may combine, shall never be deemed to be a waiver by such parry of its rights hereunder. Further, it is wverarrred and agreed that no waiver at any time of my of the provisions hereof by Cuba party battle, shall be constmed as a waiver of my other provisions hereunder, and that a waiver at any time of my of the provisions barer£ shall not be construed X my mbsequrnt time as a waiver of the same provisions. The approval of Lessor or of my action by the Lessee requiring the Lessor's consent or approval shall not he deemed m waive or render unnecessary the Lessors cement or approval of my subsequent similar set by the Lessee. ARTICLE XXIV-NOTICES Notices to the Lessor provided for in thus Lease shall be sufcimt if bond delivered, ssirt>Mwn159]98 3 Page 23 of 30 delivered to a reputable overnight defivery service or sent by registered or certified mail, return receipt requested, postage prepaid m: Edward A. Barren, City Manager (or the Nen ourreat City Manager); end Office of the City Solicitor City of Bangor City Hall 73 Harlow Street Bangor, Maine 04401 Withacopyto: Bernstein, Shur, Sawyer&Nelson 100 Middle Street, PO Box 9729 Portland, ME 04101-5029 Atm: John L. Carpenter, Esq. Notices m Lessee shall be sufficient if band delivered, delivered to a reputable overnight delivery service or sent by registered or certified mail, reason receipt requested, postage prepaid, addressed m: - Bangor Historic Track, Inc. Ann: Jon Johnson 100 Current Street P.O. Box 614 Bangor, ME 04402 Penn National Gaming, Inc. Ardn: Carl Somsanti, EN. 825 Berkshire Blvd., Suite 200 Wyomissing, PA 19610 With a ropy to: Christopher E. Howard, Esq. Pierce Atwood LLP One Monument Square Portland, ME 04101 or m such other respective addresses as the parties may designate to each other in Writing from time to time. AIRTIME - INVALIDITY OF PARTICULAR PROVISIONS If any teat or provisions of this Amended and Restated Initial Lease or the application ryns,nmµWJi59r0a3 Page 24 0/ 30 06 349 thereof to any person or c'ucumstancer is hereafter deremvned to be 0 any extent invalid or anenfvemble, the remainder of this Amended and Restated Inival Lease or the application of such terns and provisions to persons or cvmvvnances other than those to which it is held invalid or unenforceable shall not be affected hereby and such term and provision of flus Amended and Restated Initial Lease shall be valid and be eNbrceable M the Meet extent permitted by law. ARTICLE XXVI-CONSTRUCTION The headings appearing in the Amended and Restated Initial Lease are intended for convenience aM reference only, and not to be considered in construing this Amended and Restated Initial Lease. ARTICLE XXVII - NO PARTNERSHIP OR JOINT VENTURE CREATED Nothing contained herein shall be deemed or construed as creating the relationship of principal and agent or of partnership or of joint venture between the parties, it being understood and agreed that neither the method of computation of rend nor any other prevision contained herein nor my acts of the parties shall be deemed to create any relationship between the parties other than the relationship of landlord and terns. ARTICLE XEVIII -GOVERNING LAW This Lease shall be governed exclusively by the previsions hereof and by the laws of tlm State of Maine. ARTICLE XXIX-MEMORANDUM OF LEASE The parties agree not to record this Ieme; however, upon request of either, the other shall prepare and execute a Memorandum of Lease in a form suitable for recording at the Penobscot Maine Registry of Deeds, as evidence of Lessee's interest in the Practises demised herein. ARTICLE XXX -AMENDMENT TO LEASE This Amended and Restated Waal Lease contains all the tares and conditions between the patties hereto and no attention, amendment or addition hereto shall be valid unless in writing and signed by both parties hereto. ARTICLE =—RELATION TO ORIGINAL DOCUMENTS 1. Upon the Commencement Date of the Amended and Restated Final Lease, the �wfli�xarylW<99rm3 Page 25 of 30 06 349 term of the hdtial Lease sbab terminate, and all obligations, rights and dudes of the parties therein shall terminate thereunder except for those obligations which expressly survive such orientation- Furthermore, upon the Commencement Date of the Amended and Restated Final Leese, the Origivel Documents shall be deemed fulfilled as to all development obligations of Lessee and all obligations of any kind of Lessor, mul Lessor shall thereafter have an right to terminate Us Amended and Festered Initial Lease except in Ne manner and at the times set forth elsewhere therein; provided, however, the Development Agreement, as amended, bas been referenced in this Amended and Restated Lease as the source ofdefvfifionah terms, and therefore, or the extent incorporated herein, Nose definitional tams of the Development Agreement, as amended, shall remain effective. 2. Lessee hereby agrees that during the Term of this Amended and Restated hdfiai Lease, neither Lessee nor any parent, subsidiary, or affiliate entity of Lessee shall acquire any interest in real property for the construction 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 Import, subsidiary, m affiliate rawly acquire such interest, it shall comm um a breach of Nis Lease by Lessee which shell cable Lessor to terminate the Lease per Article X IIL ARTICLE XXXII—PASSAGE AND EASEMENT The parties acknowledge that the property known as the Bass Fmk complex is used by the Lessor and other paries at various times during the year and that in order to accommodate those various uses, the Lessor in this Lease resines certain rights and uses related m the Limited Portion of Bass Park portion of the Premises m itself and its successors and assigns. The Lessor does hereby reserve On following rights to the Limited Portion of Bass Park and Ne parties do hereby describe certain uses of Bass Park facilities by each of the power: a. Perform The poking lots designated on EXHIBIT A as "shared" will be available on a non-exclusive basis for use by hannew racing customers, fm ffitendces at the Baas Pok Complex and other Bass Park Complex events held at the Bass Park The Lessor and Lessee shall use commercially reasonable effort to accommodate the parking needs related to each party's use of the Premises, and agree to work in good faith to resolve all conflicts regarding utilization of shared poking areas in a fashion That fairly and appropriately balances the needs of both parties for use of such spaces. However, in the event that Lessor shall in future contract a parking garage or other parking facility on Bass Pok, Lessee shall not be entitled In any percentage or shoed use of said facility under [Itis Amevded and Resorted Initial Lease, and the above rights of shoed use apply only to existing surface parkiug. It is acknowledged and agreed by Lessee that Lestwes non-exclusive poking rights may be significantly affected or disturbed during the periods that the Bangor State Fav is scheduled brom year to year, and that parking for the Bangor State Fair stall have priority rights over Lessee's parking rights related to the use of the Bass Pok Complex. b. Trailer Park. The mulm pork areas depicted on the attached EXBIBIT A will be ryusnuagutgia9r&9.: Page 26 of 30 06 349 available (on a subordinate bars) for use by individuals associated with horse shows held in August and during the harness racing season with harness racing on a priority basis. At all other times, any armed 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. Track and Grandstand. 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 and uses at all times except during the hamass racing season. For purposes of this Lease, the "harness racing season" shall mean the period of time during each year that Lessee prepares for and conducts its race meet pursuant to the provisions of 8 AREA. § 27I. The track and grandstand semmg areas shall also be available to the Lessor and its invitees during the hamess racing season on non -racing days and after racing on any racing day where racing is normally scheduled mend by 6:00 p.m. Such uses shall be pemuned provided that the track areas shall not be closed to bursas for more Nen three days in any week from April 1st to the dale of commencement of the bareness racing season and for no more Nan two days in any week during the racingseeson. Lessmsballhaveexclmiveuseofthoseporriomoftheg dstand that are the location of Lessee's office space only during the harness racing season. d. Bangor State Fa'v: The Lessor may common to operate the Bangor Store Fav durvg the term hereof at 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 For shall not to exceed fourteen (14) days and shell be on substantially those dates as utilized by the State Fav during 2004. e. Other Uses: In addition m the f going, the Lessor may during the term hereof use any portion of the Limited Portion of Bass Park portion of the Premises not utilized by Lessee for it harness racing or office operations, for any purposes, subject however to Otte condition Nat such uses do not unreasonably interfere with or otherwise adversely affect the Lessee's harness racing office operations X the Premises. Any such use by the Lessor may include, but shall not be I m edl m, youth soecer. f Coomeratioa Lessee and Lessor agree m cooperative efforts to avoid any interference resulting fiom thein respective uses of the Premises. g. Passage. Each of the Lessor and the Lessee hereby grant to the other a right of passage and easement over it respective portions of the Bass Park Complex fm purposes of access to and ingress and egress from their was of the Limited Portion of Maas Park Portion of the Premises. The Lessor, its employees, agents, servants and invitees shall have the right to enter onto the Limited Portion of Bass Ptak portion of the Promises m all reasonable times with personnel, vehicles and equipment for the purpose of maintaining, repairing and replacing the inGssomeme, utilities and appmtenaM stmotures that are net Lessee's obligation e,00,M tWn459198.3 Page 27 of 30 06 349 to monitor or to conduct any such activities on behalf of Lessee in the event of I.essce default in the manner, and subject be the limitations set forth herein. ARTICLE XXXOI INTENTIONALLY LEEP BLANK ARTICLEXXXIY—SUPPORT In order to express Lessor's support for mainmirdng a stable, consistent legal framework for Lessee's gaming operations, reference is made to the resolve adopted by Lessor's City Council, attached hereto as EX IT D. ARTICLE XXXV—LESSEE HOLDOVER If Lessee shall default in surrendering the Prernises upon the expiration or earlier termination of the ram of this Lease, then Lessee's occupancy, subsequent to such expiration or temunation, whether or out with the consent or arxpuescence of Lessor, shall be decreed to be drat of a resuarrcy-at-will and in no event from month-to-month or from year -to -yea and it shall be subject m au temps, covenants and conditions of this Lease applicable thereto, including, without limitabor, rental provisions. Notting herem shell 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. ry.®„eadwM59]98.3 Page 28 of 30 06 349 M WITNESS WHEREOF, the parties hereto have set their bands and seals the day end year written above. '.IOJ . Y. •. J' (BY) Eidwmd A. Barran Ifs City Manager WITNESS: BANGOR MSTOMC TRACK, INC. (BY) Tide: STATE OF M E PENOBSCOT, ss2006 Then personally appeared the above-named Edward A. Barrett, City Manager of the City of Bangor, and aclmowledged the foregoing inshvment to be bis fne act and deed in his said capacity, end the free act and deed of said body carpwate. Before me, STATE OF Notary Public/ Attorney-at-law ss 12006 Then personally appeared the above-named of Bangor Historic Track, Inc., end acknowledged the foregoing inswmeat in be hie&w free act and deed in his said capacity, and the free ad end deed of said cmporatlon. Before me, Notary Publio/Attomey-at-law irm,i,u» 66 349 Exhibit List Exhibit Limited Portion of Bess Park Exhibit 8hIRSA 1011(4) Exhibit C Tex Shooing Schedule Exhibit finger City Council Resolve 06 349 -� FXXI BIT The Limited Portion of Base Park The Limited Portion of Bass Park portion of the Premises, as reforest to in the Final Luse, is the cross -hatched section of Bess Pah shown in the illustration atuche] hereto. Parking Area Also attached hereso is a cucept plan showing a proposed parking area covering a lend area in excess of the 2 acres referenud in the Lusear the Perking Am. Lessor aM Lessee agree that a configoub 2 scree of lie parking area shown in the attsched plan loutd closest to Maine Stract will cuudmta the Parking Area referred to in the Final Leese. Upon recdpt of final goveamnutal permits for the parking area, an addendum to this Exhibit will be executed by both parties spuifically identifying the location of the "Parking Ama" included in the Premises. Parking area 06 349 -2- MRSA T. g gees. 1011, Liantt to opema 19253 g M.R.S.A. 11011 MAINE REVISED STATUTES ANNOTATED TITLE &AMUSEMENTS AND SPORTS CHAPTERM. GAMBLING CONTROL BOARD SUBCHAPTER 2. LICENSING AND REGISTRATION Cumor,a ong the 2003 SwaadSpeucl Sm ionufoke 122W Lammas § 1011. Liemn to operefe The brand shell exercise authority over the leasing Of all persona P"Cipting in the common, distribution and transverse of slot machines coot sot machin thc111ties and am the magumfrs of slot machines. I.Opemkr license command. Apeesn may rot "come any got machine as the Send unless the pmson has ban ismM_a lime by opemk slot machines by the brood. A slot machine manager license wthmi s a licensee to own or kms slot machinm operated at a licensed pare ingfail y. 2. Eligible persons. The hoard may some application for a Haeme m agrak slot maehiner Sam my person who is heading to operee a damongraig track thin ainafa me fo00w119 organs: A. The eommereal hack is localeg w m within a 5 -mile radius of the Center of a nmmemial track W conduced hemess racing with pmfmumel wagoning on mora man 25 drys during imagm your 2002 and H. Tim operation Of slot machine& at the commourcial teak Is approved by the voters of *0 marginality in which Oro command does to be OcenW is located by announcing electron held a my Sae aft December 31, 06 349 y EXHIBIT 8 2002 and bekre Durri 31, 2003, 3. Requhemme fff Usage; continued commercial track licamo e. no board may not issue a Home to operate slot mschimes te any among unless thin hump demOmhatea amp hince with the qualifications sat forth in sections 1016 and 1019. A pawn who is Wanted a leant: to opmate std machines man maintain a license to operate a comment trek, without farm, atonal or nwocatlon far Ore dumion of the gm machine operators firma. 4. Raquiretmnl for licenses agreement with nieipalult Msme slot ingogrms me kxurad. A slot machine operator shall noter into an agreement with the municipality where the slot machme operators gm meonima arc iecned tam provides for associates shming or other nmpenalmn, including but not limited te, a provision requiring the preparation, in ceNmm us with the municipality, of a security plan for the premiss an which the aloe machines rte banned. The revaueabming agreement mug poncho Por a allotment payment to the municipally of 3% of the toed forms; slot macros iacame derived from the machines boosted In the municipality. •9254 S. Renewed. Llcenms to O rank slot machines may be renewed upon applications for mrsawal in marshiness wird Ih6 subehaptar, subject m boom it MEDUrbal 200; c mai f A <Oenenl Materinb (OM) -Reformers, Annoatlons,or Tables> HISTORICAL NIMES HISIORICAL)VU)nATUTORY NOTES 3001 Leaders, nswe AUl. e.6H),1R`I l.pmrlde&' , "Seo 13.11. losm livlly. Tic Aon Nquies MmWivety mlam at.200i 0 2005 ThomwN W eu. No claim to Origin U.S. 00h. comp. 06 349 tnmal Lease Tmk and Bases (10.85 saes) 1M of rad estate taxes Track oval (9.33) acres) 5o% of real estate tares RV Park(2.6 aces) 50%afrealestatetaxes Gmndstand(0.9aces) 100%ofmalestatetaxes Parking—OTB(1.0 saes) 100%ofmalestaktaxes Parking—Racing(I.Osaes) 50% of mel estate` axes Personal Property 100% Ofpesaoml property taxes Plnal Leese heck and Bams(10.95 aces) 100% Of Mal estate taxes Trak oval (9.33) acres) 50% of Mal estate taxes RV Park(2.6 aces) So°o of Mal estate taxes Gmndstand(0.9mres) 50% of Mal estate taxes Paaking— anployee(2.0 acres) 100% of Mal estate taxes Parking— Racing( t.0 acres) 50% of reel estate tsses PersomlP Pcty )OOa/oofpasomlpmpeAYtaxes Rol Estate - Riverside Block 100% of real estate taxes Pectoral Pmpecty—Riveseide Blok IW%ofpononal property taxes