HomeMy WebLinkAbout1994-03-22 REvised Lease Agreement Lawrence Municipal Airport
492 SUTCON STREET
NORTH ANDOVER,MASSACHUSETTS 01845
(508)794-5880
FAX(508)794,5961
November 15, 1996
Mr. Donald E. Florence, President
Merrimack Group Corporation
1 Parker Street
Lawrence, MA 01843
Dear Mr. Florence:
This letter confirms a vote taken at the June 13, 1996 Commission
meeting regarding the land for your hangar project.
It was unanimously voted that an adjustment could be made to your
current lease to include the additional one (1) acre.
If you have any questions or comments , please call me.
ss,'tp cerely,
Marshall A. MacKinen, CAE
Airport Manager
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853
LAWRENCE, MASSACHU$ETTS
AIRPORT COMMISSION MEETING
JUNE 13 , 1996
An Airport Commission meeting was held on Thursday evening
June 13 , 1996 at the Airport Administration Office. The meeting
was called to order at 6: 30 P.M. by Chairman Arcidi.
A. Agenda
1. ROLL CALL
PRESENT: Mr. Arcidi, Mr. Ballard, Mr. Quaglietta, Mr.
Fournier, Ms. Reed, Mr. Turrisi, Ms. O'Connor
ABSENT: Mr. Quimby
2 . APPROVAL OF MINUTES
Chairman Arcidi stated that in the future the taker of the
minutes sign and date them accordingly..
VOTED: A motion was made to approve the minutes of May 9,
1996.
The motion was seconded and unanimously voted.
3 . Presentation - Edwards and Kelcey on Project - 12
Mr. ' Dawes , the project manager for Edwards & Kelcey, and
Steve Flecch .a were present to address the Commission with the
history and background of the project. Mr. Plecchia stated what
the project will entail. He showed a diagram and there was
discussion on the issues. Mr. Dawes discussed the bonding company
and why they can not help until the termination of the contractor.
Stated there is about 30 days work left to do and 70% of the
project is done with approximately $350, 000 - $400, 000 worth of
work from the original 1. 2 million. They have confirmed from
various sub-contractors of Inter-City Construction that very little
or zero money has been paid to them for work completed, although
the contractor has been paid in full. Edwards & Kelcey has put
together a letter of recommendation to the Airport Commission
recommending they find the contractor in default on one of the
clauses in the contract which basically states if sub-contractors
aren't paid, the contractor is in default and to terminate the
contract. Suggested that it be reviewed by the attorneys to protect
the Airport Commission's interest as well.
Mr. Ballard was concerned about the drainage problem but there
seems to be no need for concern.
Mr. Flecchia stated that the delta runway pavement is 100%
complete. The shoulders drop-off and need 3-4 inches of top soil to
bring up to grade and need adjustments to lights.
Ms. Reed questioned whether there is a time frame in which
work must be completed with the contractor and the answer was "no
provision" . Ms. Reed also asked whether there has been conversation
with the company and does the Commission intend to have one. Mr.
Flecchia stated he had a brief conversation with Paul. Pandelena,
president of Inter-City Construction, and he stated at that time he
was having financial difficulties but there was no conversation
regarding sub--contractors. Mr. Dawes stated that Mr. Pandelena
could not get sub-contractors to work because they have not been
paid. Ms. Reed suggested a two step process. Mr. Ballard asked
the length of time the runway will be closed in order to notify the
F.A.A. Mr. Flecchia stated approximately two weeks to complete
construction. Mr. Dawes stated that F.A.A. and engineers are aware
of situation and that copies of letters should be sent to them and
to get their concurrence on this matter. Mr. Arcidi stated it is
the Commission's responsibility to carry out the default because
the contract is with the Commission and Inter-City, Inc.
ADD NEW ITEM - MANAGERS REPORT
Mr. MacKinen addressed the Commission and stated that the
farmer who mows the lawn can no longer do it. Asked if anyone
knows someone who can do it to please let him know.
B. OLD BUSINESS
1. Finance Committee Report
Mr. Ballard stated that a meeting was held earlier but there
is not a lot of information from the past to gain from and that the
budget was sent to Council requesting $272, 000. 00.
He has created two new graphs and eliminated two old ones to
keep track of the budget monthly. Mr. Ballard stated that the
Airport is $80, 000. 00 in arrears and estimates the new budget being
approximately $50, 000. in arrears. A new maintenance person will be
added next year.
2 . Lease Committee Report
Ms. O'Connor stated that the Lease Committee met on June 6,
1996 and discussed standardizing leases which included: value of
the land itself, security deposits on new leases, standardizing
fuel fees and insurance requirements, proposals with line item veto
or approval, create charts which monitor rents and renewals. She
hopes to have projects completed in the next few months.
Mr. MacKinen stated that by fall the Commission should have
two new stations and laser printers and will have processing
capabilities.
3 . Merrimack Valley Flyers Phase II Hangar Project
Don Florence, President, MVFA, referred to a plan and their
proposal to build four buildings of which two will have five
hangars, one will have three hangars and one is undetermined with
a total of 14-16 .individual hangars in the buildings, ten are
already reserved but need approval from Commission before accepting
deposits. $350, 000 - 1/2 million dollar project. Discussion on
details of plans. Mr. Florence also quoted a price of $8, 000 -
$10, 000 for a new sign at the entrance and added he will donate
$5, 000 to Commission. Mr. Florence asked the Commission to allow
MVFA to add 1 acre onto the existing lease and he will then go back
to the stockholders in corporation to vote.
VOTED: A motion was made by Mr. Fournier to accept MVFA
Phase II Hangar Project approval pending approval
from Town of North Andover to allow them to make
adjustments to current lease to develop project.
Motion was seconded by Mr. Ballard.
Unanimously voted.
4 . North Ramp Development Update
Deferred to New Business
5. New England Airtech Update
Mr. MacKinen spoke regarding his concern of the tie-ups and
alternatives. He met with Feds and was informed that the Airport
cannot rent any part of new maintenance building until grant runs
out but can build against it.
Mr. Uzdanovich discussed the space needed and Commission
explored different options and what will happen if Airport has to
use terminal . Also discussion on lease rates and differences.
VOTED: A motion was made by Ms. Reed to re-affirm the vote
taken on the May 9, 1996 meeting as it relates to
the N.E. Airtech after exploring alternatives to
let them use space for offices if needed.
Motion was seconded by Mr. Turrisi.
Unanimously accepted.
1
C. NEW BUSINESS
1. Letter of Default to Contractor
Discussion regarding Inter-City Construction being in
violation of federal and state law by violating contract
obligations and possible misuse of grant money. Registered letters
by sub-contractors for non-payment. Chairman Arcidi suggested that
Attorney McGravey review all legal letters going out by the
Commission. He also stated that there is nothing in writing to
address the issue, only heresay.
VOTED: A motion was made by Ms. Reed to have Airport
Manager send a letter of. inquiry to be followed by
a default letter, if necessary, to Inter-City
Construction.
Motion was seconded by Mr. Ballard.
Unanomously voted.
2 . RFQ for New Airport Consultant
Mr. MacKinen stated that Edwards & Kelcey's contract has
legally expired and must process again by law and has drafted the
RFQ which included some changes such as: 3 year contract to a five
year contract; after selection process has screened down to the
three most qualified applicants and will then present them before
the Commission. Must be filed with the Central Registry for 14
days.
VOTE: A motion was made by Mr. Ballard to have Mr.
MacKinen proceed with RFQ.
Motion seconded by Mr. Fournier.
Unanimously voted.
3 . Collings Foundation Display and Airshow
Mr. MacKinen has been in contact with Mr. Collings of the
Collings Foundation and, with the approval of the Commission, can
bring his airshow and display of restored planes to the Airport
sometime in September, 1996 for three days. The cost to the
Airport will be nothing and it will gain much publicity. This is a
U.S. Tour which gathers people everywhere is goes and Mr. MacKinen
feels it will be a great opportunity for the Airport.
VOTED: A motion was made by Mr. Fournier to approve the
Collings Airshow.
Motion was seconded by Mr. Williams.
Unanimously voted.
4 . New Maintenance Personnel
Mr. MacKinen informed the Commission of the hiring of Fred
Carberry, Jr. who is an all around qualified and excellent worker
and also mentioned Susan was hired permanently as secretary to the
commission.
i
5. Airport/ Equipment Status Report
The equipment is in bad shape but Mr. Carberry has been
working on the dump truck and tuning up engines. One plow needs
work and snowblower has leak. Need 2 snow plow trucks and an
emergency generator. The taxiway's condition range from o.k. to
bad. Received proposals for crack seal of $65, 000. 00. Runways need
striping. North Ramp will need crack seal in the next couple of
years. The terminal is cosmetically in bad shape. The furnace
needs a lot of work. The gate is broken, works manually. If he has
to declare an emergency for everything that needs to be fixed he
will do so. Will submit a proposal with figures hopefully by the
next meeting.
D. CHAIR/COMMISSION. INPUTS
Ms. Reed discussed the industrial park and the 5 year master
plan which incorporates the industrial park, North Andover land and
Airport land. Would like the Commission's ideas so a draft of a
strategic plan can be prepared to come before the Commission for
its blessing.
1. Correspondence
Would like to see a mission statement implemented.
Make sure its vision is committed to doing what you want to
achieve. and to improve function.
VOTED: A motion was made by Mr. Quaglietta to adjourn.
Motion was seconded by Mr. Turrisi.
Unanimously voted.
f
I
a c a e I P. Arc:Ud , Chairman
La,wrence Ai,rpoxt Colwlt .scion
Minutes prepared by Susan Tarshi
July 3 , 1996
GROUND
LEASE AGREEMENT
THIS AGREEMENT is between Lawrence Municipal Airport
Commission , a Massachusetts municipal non-profit corporation
with a place of business at 492 Sutton Street , North Andover ,
Massachusetts ( "Landlord" ) and Merrimack Valley Flyers
Association , Inc . with a usual place of business at 1 Parker
Street , Lawrence , Massachusetts ( "Tenant" ) .
IT IS AGREED :
ARTICLE I
Section 1 . 1 -- Purpose . Landlord owns certain real
estate located in North Andover , Essex County , Massachusetts ,
consisting of approximately 40 ; 000 sq . ft . ) , as more fully
and legally described in Exhibit "A" attached hereto and made
a part hereof ( the "Land" ) , Tenant desires to acquire the
use of the Land for the purpose of constructing ten ( 10 ) T-
Hangars to be used for storage and repair aircraft .
SSecti.on 1 2 - Descri ion of Leased Premi e . The Landlord
hereby leases to the Tenant the Land, together with any and all
appurtenances , rights , privileges and easements benefiting ,
belonging or pertaining thereto which are provided for in
Section 1 . 4 of this Lease (the "Leased Premises" ) . The
Building and any other improvements to be constructed on the
Leased Premises are referred to in this Lease as the
" Ir.;nrovements" . This includes reasonable rights of ingress and
egress in common with others using Landlord ' s facilities ,
Section 1 . 3 . - Other Land of Landlord. The Leased Premises
are adjacent to other parcels of land owned by the Landlord,
which are more particularly bounded and described in the site
plan labeled Exhibit "B" attached to this Lease (the "Other
Land of Landlord" ) .
Section 1 . 4 - Ri hts Granted Together With the Land .
Toc;ether with the Land, the Tenant shall have the following
rights during the Term:
(a) The non-exclusive right to pass and repass on foot
or in vehicles , as may be appropriate, on walks ,
drives , taxiways and airport operation areas on
Other Land of Landlord which provides access to the
Land from public ways ;
(b) A non-exclusive temporary easement, during the period
of construction of the Improvements on the Leased
Premises , to enter upon the Other Land of Landlord to
facilitate constructing constructing the improvements , including
construction temporary roads and walkways and use for storage,
staging , and other requirements reasonably necessary for
construction of the Improvements, at a location to be approved
by Landlord, which approval shall not be unreasonably withheld
and subject to such restrictions by the Landlord as shall be
for the purpose of minimizing the interference by the Tenant
with other activities on the Other Land of Landlord; and
(c) The right, at Tenant ' s expense, to construct,
maintain, replace, and use utility lines , including
but not limited to, wires , poles , cables , pipes and
drains on, above or under Other Land of Landlord for
the purpose of providing utilities, water and sewers
to the Leased Premises , at locations to be approved by
the Landlord, which approval shall not be unreasonably
withheld. All improvements above ground are subject
to federal and state approvals .
Section 1 . 5 - Rights in the Leased Premises Res rved b
T,anc.Iord . The Landlord reserves the following rights with
regard to the Leased Premises :
(a) The right to pass and repass on the roadways and
walkways on the Leased Premises , as they may exist
from time to time, on foot or in vehicles, as may be
appropriate, for convenient access to Other Land of
Landlord;
(b) The right, at Landlord ' s expense, and with prior
notice to Tenant and Sublessee, to construct► maintain "
and use utility lines, including wires, poles, cables ,
pipes and drains across portions of the Leased
Premises that will not unreasonably interfere with the
Improvements which may be constructed from time to
time on the Leased Premises, for the purpose of
providing utility services to Other Land of Landlord.
Such utility lines shall be placed within a utility
easement to be granted by Tenant to Landlord at the
time of submitting the site plan for the Improvements
to be constructed on the Land to the appropriate
governmental authorities for approval . Such Easement
shall be located at a point on the Land mutually
acceptable to Landlord and Tenant . Both parties agree
not to unreasonably withhold their approval .
Section 1 . 6 -- Initial T r . The Term of this Lease shall
be for a period of twenty (20) years from the first day of the
month after the date that all Conditions Precedent, as defined
in Sections 1 . 9 and 1 . 10 of this Lease, have been satisfied or
have been waived by the Tenant and the Landlord, respectively
( "the Commencement Date" ) .
-2-
Section 1 . 7 - Holding Over . In the event the Tenant shall
hold over after the expiration of the Term hereof, such holding
over shall not extend the term of this Lease but shall create a
month-to-month tenancy upon all terms and conditions of this
Lease .
Section 1 . 8 Conditions Preced nt For Tenant . The
obligations of Tenant under this Lease and the commencement of
the Lease shall be condit ' oned upon the satisfaction of the
following conditions (the "Tenant ' s Conditions Precedent" ) or
waiver thereof by the T ant, in its sole discretion, on or
before
(a) Marketability of Title . Marketable fee simple title
to the Land shall be owned by the Landlord free ar}u
clear of all encumbrances except usual and customary
utility easements .
(b) Final Plans . The final plans and specifications for
the development of the Leased Premises and the
construction of the Improvements ("Plans and
Specifications") shall have been reviewed by the
Landlord and approved by Tenant, and all federal ,
state or local governmental agencies whose approvals
are required under applicable law and Landlord shall
have approved the exterior elevation plans for the
Improvements on the Leased Premises (the "Building
Plans" ) and the site plans for location of the
Improvements and for the proposed terrain alteration
on the Land (the "Site Plans" ) , which approval shall
not be unreasonably withheld.
(c) Permits . All permits and approvals required by any
federal. , state or local authority shall have been
issued to permit the construction of the Improvements
including , without limitation, all necessary zoning
approvals , permits or licenses from the Town of North
Andover . No such permit or approval shall be subject
to any condition unacceptable to Tenant , in its sole
discretion, and all applicable appeal periods for such
permits and approvals shall have expired .
(d) Authorization. The Landlord ' s board of directors
shall have approved this Lease . (state and Federal
approval) .
(e) Utilities Letters. Tenant shall have received letters
from the providers of all necessary utility services
that such services are available at the boundary of
the Leased Premises in capacities required for all
services contemplated for the construction and
operation of the Improvements . Provided,
nevertheless, that Tenant shall provide, at Tenant ' s
sole expense, all utilities required for its operation.
( f) Soil Tests. Tenant shall have received written
engineering reports deemed appropriate by Tenant, with
respect to soil conditions, hazardous wastes ,
hydrological conditions and other physical conditions
of the Leased Premises with respect to the suitability
of the Leased Premises for the construction and
operation of the Improvements without the need to
incorporate extraordinary measures . Provided,
nevertheless, that all tests contemplated herein are
conducted with the approval of the Landlord and are at
the exclusive expense of Tenant, and the Landlord is
not responsible for providing investigation or removal
oU spill prevention plans for any of the Tenant ' s
operations .
In the event that the Tenant ' s Conditions Precedent have
not been satisfied or waived by Tenant prior to
, this Lease shall be null and void and neither party shall
have any further obligation to the other arising out of this
Lease . The Tenant shall notify the Landlord on or before as
the Tenant ' s conditions Precedent are satisfied or waived .
Section 1 , 9 -- Conditions Precedent For Landlord. The
obligations of Landlord under this Lease and the commencement
of this Lease shall be conditioned upon the satisfaction of the
following conditions (the "Landlord ' s Conditions Precedent" ) or
waiver thereof by the Landlord, in its sole discretion, on or
before the dates hereinafter indicated.
(a) 'Improvements On Other Land of Landlord. Approval of
the Plans and Specifications by the North Andover
Municipal Authorities and Boards and other regulatory
(federal , state and Local, including environmental and
aeronautical authorities) ,
(b) Construction Guarantee. Receipt by the Landlord of a
written guarantee from Merrimack Valley Flyers Association, Inc,
for the benefit of and enforceable by the Landlord
guaranteeing the completion of construction of the
Improvements in accordance with the Plans and
Specifications and all applicable rules and
regulations of governmental agencies having
jurisdiction thereover and in accordance with the
schedule provided for in the construction contract( s)
between the Tenant and its contractors .
(c) Issuance of Certificate of Occupancy by Town of North
Andover .
The Landlord shall notify the Tenant as the Landlord ' s
Conditions Precedent are satisfied or waived .
-4-
ARTICLE II
Rent
Section 2 , 1 - Base Rent . The initial annual Base Rent
shall be ($ ) Dollars
payable in equal monthly installments of
{ $ ) Dollars , for the leased
Premises , All Base Rent shall be paid in advance in equal
monthly installments on or before the first day of each
monthly period during the Term of this Lease commencing on
the Commencement Date .
Tl:--, Bast- fZgnt nall be adjusted on the 3rd anniversary of
the Date of this Lease and every three years thereafter during
the Term. For each Three (3) year period of the Initial and
each Option Term, the Base Rent shall be adjusted by
multiplying the initial Base Rent by a fraction (so long as the
fraction is more than the whole number one) , the numerator of
which shall be the Price Index as of the month immediately
preceding the period for which the rent is being calculated and
the denominator of which shall be the Price Index as of the
first month of the Initial Term or that ' Option Term,
respectively, of this Lease . As used in this Lease, the term
"Price Index" means ( i) the "Consumers" Price Index - U5
Average (All Cities) All Urban Consumers , 1957-100) " published
by the Bureau of Labor Statistics of the United States
Department of Labor, or (ii) if the publication of the
Consumers ' Price index shall be discontinued, a comparable
index which clearly reflects the diminution of the real value {
of the rent herein provided for .
-5-
Section 2 . 2 - Taxes-,. In addition to the Base Rent payable
under Section 2 . 1, the Tenant shall pay to the Landlord, or to
the taxing authority if a separate bill for any of the items
set forth in this Section is rendered to the Tenant, "the
Taxes" set Forth in Subsections (a) , (b) and (c) of this
Section, together with applicable interest and penalties , if
any. The kinds of Taxes payable by the Tenant hereunder are as
follows :
(a) All taxes, and other governmental special assessments
imposed on the Land and/or the Building and other
Improvements which may exist from time to time on the
Land; and
(b) All personal property taxes assessed and levied
against the Tenant ' s personal property on the Leased
Premises , including trade fixtures and inventory.
Section 2 , 2 1 - Method of Payment ofTaxes . If any of the
Taxes referred to in Section 2.2 are evidenced by a separate
bill rendered by the taxing authority to the Tenant, the Tenant
shall pay such bill directly to the taxing authority no later
than the last day on which such bill, or the installment
thereof then due, can be paid without interest or penalty. In
the event any of the Taxes referred to in Section 2 . 2 are
included in a bill rendered to the landlord, the Tenant ' s share
of such Tax bill shall be paid in full as additional rent
within fifteen ( 15) days after Tenant receives written demand
therefor from Landlord, together with copies of all bills and
calculations with respect thereto, but not prior to fifteen
( 15) days before the last day on which such ball , or
installment thereof, can be paid without interest or penalty.
If the Tenant makes such a' timely payment of Taxes to the
Landlord and Landlord thereafter fails to timely remit the
Taxes to the taxing authority, Landlord shall be liable for all
resulting interest and penalties .
Section 2 . 2 . 2 - Review of Tax Assessments . The Tenant
shall have the right to seek review or to contest , by
appropriate legal proceedings, including appearances before the
Appellate Tax Board or other administrative agencies, the
amount or validity of any Tax levied or imposed with respect to
the Leased. Premises , the Land, the Building or the
Improvements , If the Tenant desires to contest the validity of
any Tax, the Tenant may do so without being in default
hereunder , provided the Tenant gives the Landlord notice of the
Tenant ' s intention to do so and, if such is permitted by law
without creating a lien against the Leased Premises or the
Improvements or otherwise giving the taxing authority the right
to proceed against either of them, furnishes a bond made by a
surety company qualified to do business in the Commonwealth of
Massachusetts or pays cash to a mutually acceptable escrow
-6-
agent in Essex County, in either case equal to the amount so
required and provided that the Tenant shall pay such Tax when
the validity thereof shall have been determined . The Landlord
ageees to cooperate with the Tenant in any such review or
contest to the extent requested by the Tenant . Expenses
relating to the review or contest of any such Tax brought by
the Tenant shall be borne exclusively by the Tenant, provided
that in the event that any 'decision regarding the amount or
validity of any such Tax benefits Landlord by lessening the
amount of any such Tax on Other Land of Landlord for which
Tenant is not responsible under this Lease, Landlord shall pay
a percentage of the cost of such contest, equal to the
percentage . of the total Tax reduction benefiting Other Land of
Landlord, but in no event greater than the amount of Tax
savings to the Landlord .
Section 2 . 2 . 3 Tenant ' s failure to Pay Taxes . In the
event that the Tenant shall fail , refuse, or neglect to make
any of the payments in this Section 2 . 2 required, except as
provided in subsection 2 . 2 . 2 hereof , then the Landlord may, at
its option, pay the same, and the amount or amounts of money so
paid , together with interest on all such amounts , at the rate
of two percent (2%) per annum over the then current first
National sank of Boston prime rate, adjusted monthly, shall be
repaid the Tenant to the Landlord, upon the demand in
writing the Landlord, and the payment thereof may be
collected or enforced by the Landlord in the same manner as
though such amount were an installment of rent specifically
required by the terms of this Lease to be paid by the Tenant to
the landlord within ten (10) days after the date that. the
Landlord demands reimbursement therefor from the Tenant .
i n 2 2 4 -- Payment in Inatallments . Should any Tax be
payable in installments, the Tenant shall have the right to pay
such Taxes in such installments , provided that the Tenant makes
all such payments when due and pays all interest imposed
resulting from such installment payments . Should the Tenant
elect to pay such Taxes in installments, the Landlord agrees to
execute whatever documents are necessary to effect such
installment payments .
Section 2 . 3 -- No Notice . The Tenant shall make all
payments of . Base Rent and any other payments provided for in
this Lease without notice or demand.
Sectia-.. ? A -.....Place of Payment . Payment of Base Rent shall
be made to the Landlord at the address appearing at the end of
this Lease, or to such other address as the Landlord shall
designate by written notice to the Tenant .
-7-
Section 2 . 5 - Utilities and Other Tg1jant Services . The
Tenant shall pay any and all charges for utilities and other
services provided to the Leased Premises , including but not
limited to electricity, water, sewer , steam, heat , garbage and
trash removal, snowplowing and the like. Such payments shall
be made when due. Tenant shall also be responsible for all
environmental and hazardous waste removals .
Section 2 . 6 -._Rent to be Net . It is the purpose and intent
of the parties that the Base Rent, hereinabove provided to be
paica to the Landlord by the Tenant, shall be absolutely net to
Landlord, so that this Lease shall yield net to Landlord the
rent , as hereinabove provided, and that all costs , expenses ,
and obligations of every kind or nature whatsoever relating to
the Leased Premises, or any improvements thereon, which may
arise or become due during the Term of this Lease, shall be
paid by the Tenant and that the Landlord shall be indemnified
and saved harmless by the Tenant from and against the same,
,ARTICLE III.
Use of Leased Premises
SectiQn 3 . 1 - parmitted Uses . During the term of this
Lease, the Tenant and any Sublessee , and their respective
successors and assigns , shall use the lease Premises and the
Improvements exclusively for the construction, lease and/or
operation of hangars for the housing and storage of aircraft,,
and all other uses appertanent thereto. r
9=tion 3 .7. - Unlawful-Purpose. The Tenant shall not use
or allow the Leased Premises or any part thereof to be used or
occupied for any unlawful purpose or in violation of any
Certificate of Occupancy covering the use of the Leased
Premises or any part thereof, or in violation of any permit or
license connected with the use of the Leased Premises or any
part thereof , and shall not suffer any act to be done or any
condition to exist on the Leased Premises or any part thereof
or any article to be brought thereon which may be dangerous
. (unless safeguarded as required by law) or which may, in law,
constitute 0 nuisance, public or private, or which may make
void or voidable any insurance then in force with respect
thereto . Tenant shall indemnify Landlord for, and save
Landlord harmless from and against, all expense, damages and
loss resulting from violation of any laws, ordinances, and
regulations applicable to the use and occupancy of the Leased
Premises, whether from negligence or willful act of Tenant or
any person upon the Leased Premises by license or invitation of
Tenant, or occupying under Tenant . Tenant, at its expense, may
contest , by appropriate legal proceedings , the validity of any
law or regulation if the imposition on Landlord of any
consequence from the violation of the law or regulation can be
suspended until final determination of its validity or
application without subjecting Landlord to liability.
ARTICLE IV
Repairs nd Maintenance
Section 4 . 1 - Good State of Repair . Tenant covenants and
agrees with Landlord that, during the Term of this Lease, the
Tenant will at its own expense, keep in good state of repair
the Building and any Improvements and fixtures which are
constructed.' or placed upon the Leased Premises by the Tenant
and the Tenant will not suffer or permit any strip, waste or
neglect of the Leased Premises or of the Building or other
Improvements on the Leased Premises .
Section 4 . 2 - Reconstruction . Although it is the Tenant ' s
duty under the terms hereof to keep and maintain the Bulding
and other Improvements on the Leased Premises in good repair ,
this shall not be construed as empowering the Tenant do
demolish the Building or other Improvements on the Leased
Premises or any substantial part thereof or to cause any major
reconstruction to be made (except as otherwise expressly
provided in this lease) unless and until the Tenant ;
(a) Causes plans for the new buildings or the new
improvements to be prepared in full accordance with
all applicable building and zoning laws , regulations ,
codes and ordinances , and delivers written plans
therefor to the Landlord for its approval , federal and
state approval , (which approval shall not be
unreasonably withheld) at least sixty (60) days before
the work proposed to be done pursuant thereto is
actually commenced; and
(b) Completes the construction of new buildings or new
improvements in accordance with Article VI hereof .
For the purpose of this Subsection, no work will , be
deemed a "demolition" or a major reconstruction so as
to bring it within the terms of this provision .of the
Lease unless it constitutes either the actual
destruction of the Building or the Improvements or a
substantial part thereof or unless it constitutes a
remodeling which, in substance, requires the tearing
down of a substantial part of the Building . The
changing of openings or the removal and/or relocating
of partition wails , or other work inside the Building
designed to accommodate itself to better occupancy,
shall not be deemed a demolition or major repair
within the meaning of this subsection. Tenant may at
its option give notice to the Landlord of any proposed
undertaking which it believes does not require the
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approval of the Landlord under this subsection, and
unless the Landlord, within thirty (30) days of said
receipt, notifies the Tenant that it believes such
approval is required under this Subsection, such
proposed undertaking shall conclusively be presumed
not to require the Landlord ' s approval .
Section 4 . 3 - Maintenance. The Tenant shall ( i ) keep
reasonably free from obstructions or encumbrances all surfaced
roadways , walks , and all loading, unloading and parking areas
which are part of or which service the Leased Premises ; ( ii)
keep reasonably clear of dirt, snow and ice all such roadways,
walks and areas; and (iii ) keep the Leased Premises reasonably
clean and neat , including mowing and proper care of seeded
areas .
ARTICLE V
Landlord ' s Covenants ,
Warranties and Re resentations
Section 5 . 1 . Quiet En ' o men . Landlord represents and
warrants that it is the fee simple owner of marketable title to
the Leased Premises , subject to only those encumbrances , if
any, shown on Exhibit "C" , and that the Landlord has full power
and authority to enter into this Lease and to lease the Leased
Premises to Tenant in accordance with the terms and conditions
of this Lease. Landlord covenants and agrees that the Tenant
upon paying the Basic Rent and all additional rent reserved
hereunder and observing and performing all of the terms,
covenants and conditions on the Tenant ' s part to be observed
and performed, shall peaceable and quietly have and hold the ti
Leased Premises, without hindrance or molestation by any person
or persons lawfully claiming by, through or under the Landlord.
ARTICLE VI
Construction of Improvements
Section 6 . 1 - Preparation and Cost of Plans and
Specifications'. All Plans and Specifications for the
development of the Leased Premises or construction of the
Improvements which require approval by the Town of North
Andover municipal authorities and boards, and MAC and FAA,
shall be submitted by the Landlord in a timely manner to the
extent Tenant requests Landlord to do so . Such Plans and
Specifications , including any necessary engineering studies ,
shall be prepared at the Tenant ' s direction and at its sole
expense and, if paid for by the Landlord in the first instance,
shall be reimbursed by the Tenant regardless of whether the
Conditions Precedent are satisfied or waived by the Tenant and
rent under this Lease is commenced. If the Tenant elects not
to proceed with this Lease prior to the Commencement Date, the
Tenant shall give the Landlord written notice thereof , after
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which the Tenant ' s liability hereunder for subsequently
incurred expenses of Plans and Specifications shall cease.
Section 6 . 2 - - Responsabilit;Y__ nf _ Tenant . Tenant shall
develop the Leased Premises and Construct the Building and
Improvements to be shown in and according to the Plans and
Specifications and the Building Plans , at Tenant ' s sole
expense . Before commencement of construction, Tenant shall , at
its own expense,
(a) obtain all necessary governmental permits, licensees ,
consents and approvals ; and
(b) enter into necessary agreements with public utilities
and special service districts .
Section 6 . 3 - uali of Construction . All work shall be
done in compliance with the Plans and Specifications , the
Building Plans and all applicable laws , regulations , codes and
ordinances and .any requirements of the insurers of the Leased
Premises . The Landlord shall designate an authorized
representative, who shall have the right to inspect the
construction at reasonable times and to participate in all
project meetings held by the Tenant or its construction manager
or general contractor, provided however , that such inspection
of construction and participation in project meetings by
Landlord or its representatives shall be at the sole risk and
expense of Landlord and for informational purposes only.
Landlord shall have no right to control the means or method of
construction of the Improvements . The Tenant further agrees to
make available to the Landlord at reasonable times, after the
representative ' s request therefor, all construction contract
change orders for the Laudl.-e-rd-'rs informati6n.-
q- ction - Oc u anc Tenant shall be entitl to
occupy Building upon receipt of a Certificate of Occupa
from e Town of North Andover municipa au oritzes and board.
(t e "Approvals" ) . Tenant agrees to subject to the Landlord a
c rtificate from an a chitect selected by the Tenant and
re Ice in one of these United States , that the
Building or portion thereof in question has been constructed
substantially in accordance with the Plans and Specificati
he Building Plans' and that, subject to typica nal
punch lrs mp ete, such
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certificate to be submitted as soon as reasonably practicable
after Tenant ' s receipt of the Approvals .
Section 6 . 5 - Control of Construction. The Tenant
covenants and agrees that it will use its reasonable best
efforts to minimize traffic, noise, soil erosion and dust
during the construction of any improvements to the Leased
Premises . The Tenant further agrees that , to the extent that
any of its construction traffic passes over Other Land of
Landlord , the Tenant will Steep the said premises in a good
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state of repair and shall use its reasonable best efforts to
minimize the dust, debris and soil erosion generated thereon by
said traffic .
Section 6 . 6 - Additional Improvements . The Tenant may,
from time to time, make such additional improvements ,
alterations or additions to the Improvements provided for in
the Plans and Specifications . Additionally, Tenant may, from
time to time, make changes to the exterior of the Building or
to the Land, provided that, in the event of any substantial
exterior changes to the Building or the Land , Tenant shall
submit the Building Plans or the Site Plans , as the case may be
to Landlord' for Landlord ' s approval in writing in advance . The
construction an
d use of such improvements shall be subject to
all other terms and conditions of this Lease, Landlord shall
not in any case be required to dedicate any further land to
this Lease and all costs of the additional improvements shall
be at the sole expense of Tenant . (See also, Section 4 . 2 ante , )
Section 6 , 7 Mechanics Liens . If any mechanic ' s,
laborer ' s, materialman ' s, contractor ' s, or subcontractor ' s lien
is filed against the Leased Premises , Tenant shall cause it to
be discharged of record within a reasonable time after
receiving notice that such lien has been filed, unless Tenant
determines in good faith to contest the amount of validity of
the claim. In that event , Tenant shall furnish a surety bond
or other security as may be required by law, and shall
prosecute such contest diligently and in good faith. If Tenant
fails to discharge the lien or comply with statutory
requirements to contest it , then, in addition to any other
right or remedy, Landlord, on sixty (60) days ' written notice
to Tenant , or such shorter notice as may be required to prevent
foreclosure of the lien, may discharge the lien by any mode
allowed by law. All of Landlord ' s payments and legal and other
expenses , including attorneys ' fees, in procuring the discharge
of such lien shall be repaid by Tenant on demand .
Section. 6 . 8 - Survey and Sgils Test . Landlord shall
provide to Tenant, at Tenant ' s sole cost and expense and. at
Tenant ' s option, complete access to the Leased Premises prior
to the Commencement Date for purposes of preparing land surveys
.of the Leased Premises , including topographic data and
completing soil tests and borings , performed by licensed
professional surveyors and engineers selected by Tenant .
Section 6 . 9 - Rights inImprovements and Personal
Property. All machinery, furniture, equipment, and inventory
of whatsoever nature (the "Personal Property" ) at any time
placed on any part of the Leased Premises, and the Buildings
and Improvements constructed on the Leased Premises , shall be
and remain the property of Tenant or subtenants , as their
interests may appear, during the Term. The purchase option set
forth in Article XII hereof shall not include any of the
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Personal Property which shall remain the property of Tenant , or
its subtenants , and may be removed from the Leased Premises at
any time; but the Tenant shall repair any damage occasioned by
such removal . {
Se tion 6 . 10 -- Off-Site Improvements . Tenant, at Tenant ' s
sole expense, shall be responsible for the construction of any
improvements off-site from the Leased Premises , whether on the
Other Land of Landlord or entirely off the Landlord ' s premises ,
as are required by governmental authorities as a condition for
approval of the initial plans and specifications or for
approval of plans and specifications for subsequent additions
to or alterations in the improvements , unless expressly agreed
to otherwise by the Landlord in writing .
ARTICLE VII
Mortg a in As i gnment and Subletting
Section 7 , 1 - Tenant ' s Right to Lease and Mortgage, The
Tenant shall have the right to mortgage, pledge, assign or
sublet the Leased Premises , this Lease and the Improvements ,
subject to the limitations of this Article . Any such mortgage,
pledge, assignment or sublease shall be subject and subordinate
to the rights of the Landlord under this Lease.
Section 7 . 1 . 1 - Leases_ and Subleases . The Tenant shall not
lease or sublease the Improvements or the Leased Premises , in
whole or in part , without the Landlord ' s prior written consent ,
to any party. Such leasing and/or subleasing shall not relieve
the Tenant from any of its obligations or covenants under this
Lease . Any lease or sublease to a party shall include a
provision making the Substitute Leasee a guarantor of the
Tenant ' s obligations under this Lease to pay the Base Rent and
any additional rent as outlined in said Lease, and shall
provide that such guarantee may be enforced by the Landlord .
Notwithstanding the above :
( a) AssignmentZSubletting . Tenant shall not assign this
lease or sublet all or any part of the demised premises or the
term or permit the demised premises or any part thereof to be
used or occupied by others . Notwithstanding the foregoing ,
subject to the provisions and conditions of this Section
7 . 1 . 1 (a) and its subdivisions , Tenant shall have the right to
assign this lease or to sublet a portion of the demised
premises (but not the entire demised premises) , provided Tenant
shall have first obtained Landlord ' s prior written consent
thereto, which Landlord agrees shall not be unreasonably
withheld . It shall not be deemed unreasonable for Landlord to
withhold such consent, if the proposed assignee or subtenant
shall fail to meet Landlord ' s standards for financial
stability, and good personal and business reputation, and does
not intend to use the demised premises for the conduct of an
establishment for a main hangar/office building .
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(b) Conditions . If Landlord consents to any proposed
assignment or subletting, such consent shall, apply only to the
specific transaction thereby authorized. Tenant acknowledges
and agrees that in all such cases ( i) each assignee shall be
required to attorn to Landlord by instrument satisfactory to
Landlord, and ( ii) the minimum rent payable hereunder (and
other pertinent terms and conditions of the lease) for the
portion of the term beginning with the effective date of any
assignment or sublease shall be increased to the then current
"market" rate(s) for similar space in the market area in which
the demised premises are located, all as determined by Landlord .
(c) Joint Liability- with Successors . In any event ,
whether or not Landlord has consented to any assignment or
sublease, all persons and legal entities holding the lessee
interest in this lease from time to time shall be jointly and
severally liable to Landlord (and the original named Tenant
shall remain fully and primarily liable to Landlord) to perform
all of the obligations of Tenant hereunder , notwithstanding any
recognition (by acceptance of rent or otherwise) or indulgence
at any time granted by Landlord to Tenant or to any assignee or
subtenant .
(d) Notice of Proposal to Assign or Sublet . If Tenant
desires to assign this lease or to sublet a portion of the
demised premises, Tenant shall give Landlord prompt written
notice of that fact and shall furnish to Landlord, as a part of
that notice, ( i) a comprehensive and detailed description of
the monetary and all other details of the proposed assignment
or subletting, including without limitation, any lump sum
payment to be made with respect to the fixtures and equipment ,
( ii) the identity and address of the proposed assignee or
subtenant and of any proposed guarantor, ( iii) a detailed
description of the use of the demised premises to be made by
the proposed assignee or subtenant, (iv) a statement of the
then current net worth of the proposed assignee or subtenant ,
determined in accordance with generally accepted accounting
standards, and certified by a Certified Public Accountant (.the
"Net Worth" ) , and (v) the business history of the proposed
assignee or subtenant .
(e) Landlord ' s Options . If Tenant shall give notice of a
proposed assignment or subletting as required by the provisions
of Section 7 , 1 . 1 (d) , Landlord shall have the right to make any
one of the following elections : (i) Landlord may refuse to
grant consent thereto for the reason that it would not be
unreasonable so to do under the foregoing provisions of this
Section 7 . 1 . 1 and its subdivisions , or ( ii) Landlord shall
consent to such assignment or subletting, if, under the
provisions hereof , it would be unreasonable not to do so, or
( iii) Landlord may request any additional information, which
may, in Landlord ' s sole business judgment, be necessary for
Landlord to make its determination under this Section 7 . 1 . 1 and
its subdivisions .
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f
( €) andlor R ie . If the Named Tenant or any
successor shall fail to perform or observe the obligations and
limitations imposed by Section 7 . 1 . 1 , such failure shall be
deemed to be a Condition of Default not susceptible of being
cured, and Landlord shall have no obligation to give notice
prior to exercising any of Landlord ' s rights provided as
remedies for such Default hereunder . Whether or not Landlord
exercises any of its rights hereunder , Landlord may enforce
this lease in all, particulars against the person(s) or legal
entity(ies) from time to time in possession of the demised
prerises (including, without limitation, the provisions
relating to minimum rent and other payments and the provisions
relating tp reports and audits of gross sales) to the same
extent and with the same effect as if such person(s) or legal
entity(ies) were the Named Tenant, but, in the absence of a
written agreement to the contrary between Landlord and such
person(s) or legal entity( ies) , neither such enforcement nor
the acceptance of any payment shall impose on Landlord any
obligation or liability whatsoever, other than such as may be
expressly imposed by applicable law, nor shall such enforcement
or acceptance relieve the Named Tenant from any of its
obligations or liabilities under this lease .
Section . 7.. 1 . 2 - Security Intersts . The Tenant shall not
assign as security► pledge, mortgage or otherwise encumber this
Lease or the Improvements, in whole or in part, to any party
other than one who supplies purchase money, construction,
permanent or working capital financing to the Tenant or the
Sublessee with respect to this Lease, the Improvements and/or
the activities to be conducted on the Leased Premises or one
who provides refinancing of such loans , provided that such
refinancing shall not exceed ninety percent (90d) of the Fair
Market Value of the Improvements (defined hereinafter)
determined as of the date of the refinancing . Without limiting
the generality of the foregoing, the Tenant shall not encumber
this Lease or the Improvements under a blanket mortgage or
other security agreement to secure debt obligations of the
Tenant or the Sublessee unrelated to the activities conducted
on the Leased Premises . The Tenant shall not mortgage . or
pledge its interest in this Lease to any party separately from
its interest in the Improvements and any such mortgage or
.pledge shall provide that, upon foreclosure by a mortgagee or
pledgee of its security interest, all of the Tenant ' s interests
in both this Lease and the Improvements shall be foreclosed
upon and shall be extinguished. No mortgage or pledge of the
Tenant ' s interest in this Lease or the Improvements shall
contain a provision prohibiting prepayment of the debt
obligation secured by the mortgage or pledge. Any mortgage or
pledge of the Tenant ' s interest in this Lease or the
Improvements shall contain a provision subordinating the
mortgage or pledge to this Lease and, without limiting the
generality of the foregoing , shall specifically subject the
mortgagee or pledgee to the provisions of this Lease, including
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Section 7 . 4 hereof . No mortgage or pledge of the Tenant ' s
interest in this Lease or the Improvements shall extend for or
grant any security interest in excess of the Term of this Lease.
Section 7. 1 . 3 - Sale or Other Disposition. The Tenant
shall not assign this Lease or sell, gift or otherwise dispose
of its ownership interests in the Improvements, in whole or in
part, to any party except in accordance with Section 7 . 1 . 1 of
this Lease, nor shall the Tenant so transfer its interest in
this Lease to any party separately from its interest in the
Improvements . Any transfer to a subsidiary, parent corporation
or other affiliate of the Tenant , or to any corporation or
partnership.' of which the Tenant is a shareholder or partner
shall not be deemed a disposition subject to this Section so
long as Tenant has more than 500 of the voting rights in the
successor entity.
Section 7 . 2 - Notice of Mart a e. No holder of a mortgage
on or pledge of this Lease or the Improvements and no lessee of
the Improvements or subleasee of this Lease (collectively, the
"Leasehold Mortgages") shall have. the right to notice mentioned
in this Article, unless and until the Landlord shall receive an
executed counterpart copy of such mortgage, pledge, lease or
sublease together with the name and address of the mortgagee,
pledgee, lessee or sublessee, notwithstanding any other form of
notice, actual or constructive.
o
r,t Term
Section 7_,3 Special Provisions During„ . e
Leasehold Mc� gages, I f the Tenant shall
a l l,., mortgage
a e or pledge
this Lease or the Improvements in compliance with the
provisions of this Article, then so long as any such mortgage
or pledge shall remain unsatisfied of record, the following
provisions shall apply;
(a) The Landlord, upon serving upon the Tenant any notice
of default pursuant to the provisions of Article X of
this Lease or any other notice under the provisions of
or with respect to this Lease, shall also serve a copy
of such notice upon the holders of each of the
Leasehold Mortgages at the addresses provided for in
this Article, and no notice by the Landlord to the
Tenant under this Lease shall be deemed to have been
duly given unless and until a copy thereof has been so
served .
(b) Any holder of such Leasehold Mortgage, in case the
Tenant shall be in default hereunder, shall, within
the cure and grace periods, have the same rights , at
its option and discretion, to remedy and cure such
default or cause the same to be remedied, and the
Landlord shall accept such performance by or at the
instance of such holder as if the same had been made
by the Tenant .
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{c} The Tenant and Landlord expressly agree that, in case
of the Tenant ' s default hereunder which remains
unremedied within the applicable cure and grace
periods , any holder of a Leasehold Mortgage who has
issued the notice provided for in Section 7 . 2 shall
have the right , at its option, to obtain possession of
the Leased Premises and the Improvements and the right
to forthwith succeed to the Tenant ' s interest in this
Lease and the Improvements upon receipt by the
landlord and Tenant within sixty (60) days after the
expiration of such cure or grace period of a written
notice of the said holder ' s exercise of the rights
granted hereby and the holder ' s agreement to succeed
to the Tenant ' s interests , rights and obligations
under this Lease (the "Notice to Succeed" ) , subject to
the following conditions :
( 1) service upon the Landlord within ten ( 10)
days of the expiration of the applicable grace or
cure period of a written request to forebear from
serving upon the Tenant a Notice of Title as
provided for by Section 10 . 2 hereof ; and
(2) cure of all monetary defaults of the Tenant
within the aforesaid sixty ( 60) day period; and
(3) cure of all non-monetary defaults (except a
default under Section 10 . 1 (c) hereof) of the
Tenant within the aforesaid sixty ( 60) day period
or , if more than sixty (60) days is reasonably
required for cure, commencement to cure within
the period and diligent efforts thereafter to
complete the cure; and
(4) cooperation with the Landlord to remove the
Tenant from possession of the Leased Premises .
The Landlord expressly agrees that if the Landlord
receives a timely Notice to Succeed from the holder of
a Leasehold Mortgage, and if the above conditions are
satisfied, the Landlord will accept the said holder ,
as ' successor to the Tenant ' s interests , rights and
obligations under this Lease (the "Successor Tenant" )
and the Landlord shall not terminate this Lease . if
the Successor Tenant shall fail to satisfy the above
conditions , the Landlord may elect to terminate this
Lease as provided for in Article X hereof . No actions
by the holder of any Leasehold Mortgage pursuant to
this Section shall extend the Tenant ' s time to cure a
default nor act to allow the Tenant to reinstate or
redeem this Lease after the Tenant ' s time for cure has
expired .
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(d) If the holders of more than one such Leasehold
Mortgage shall serve Notices to Succeed upon the
Landlord in accordance with the provisions of this
Article, this Lease shall be assigned pursuant to the
request of the holder whose Leasehold Mortgage shall
be prior in lien therto, and thereupon the Notices to
Succeed of each holder of a Leasehold Mortgage junior
in lien shall be deemed to be void and of no force or
effect .
(e) So long as there are holders of Leasehold Mortgages
whose liens are unsatisfied, any agreement between the
Landlord and the Tenant cancelling or surrendering
this lease shall only be effective upon one hundred
twenty ( 120) days prior written notice thereof to the
holders of Leasehold Mortgages of which the Landlord
has received the notice provided for in Section 7 . 2
hereof . Upon receipt of such notice, the said holders
of Leasehold Mortgages shall have the rights provided
for in Section 7 . 3 (d) hereof .
(f) So long as there are holders of Leasehold Mortgages
whose liens are unsatisfied, no union of the interests
of the Landlord and the Tenant herein shall result in
a merger of this Tease in the fee interest .
(g) Any notice or other communication which the holder of
a Leasehold Mortgage shall desire or is required to
give to or serve upon the Landlord shall be deemed to
have been duly given_ or served if sent by registered
or certified mail , return receipt requested, hand
delivery or by Federal Express or similar overnight
service, addressed to the Landlord at the Landlord ' s
address as set forth in Section 13 . 5 of this Lease or
at such other address as shall be designated by the
Landlord by notice in writing given to such holder .
Section 7 .4 - Assignment , by Foreclosing Mortgagee. If the
holder of any Leasehold Mortgage shall purport to acquire. or
transfer title to the Tenant ' s interest in this Lease and/or
the Improvements by foreclosure of such Leasehold Mortgage
-thereon or by assignment in lieu of foreclosure, the
foreclosing . holder of such a Leasehold Mortgage shall first
offer the Landlord in writing the option to purchase the
Tenant ' s interests in the Improvements , free and clear of the
interests of the Tenant , the Leasehold Mortgage of the
foreclosing party, the Leasehold Mortgages junior thereto in
lien, and any operation Agreements or subleases of this Lease
and/or the Improvements (which shall all automatically expire
if the Landlord exercises its option to purchase provided by
this Section 7 .4 ) . The option price to the Landlord shall be
the then Fair Market Value of the Improvements (as hereinafter
defined) , minus the amounts secured by any senior Leasehold
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Mortgages . The Landlord shall have forty-five (45) days after
such notice to accept in writing the option price and to make a
deposit of ten percent ( 10%) of the purchase price, and then to
Pay the balance not more than ninety (90) days thereafter . In
the event that the Landlord fails to exercise its option to
purchase within the forty-five (45) day period, the holder of
the Leasehold Mortgage shall bq free to complete a foreclosure
sale of its Leasehold Mortgage; provided however , that nothing
herein shall bar the Landlord from bidding at such a
foreclosure sale or from thereby acquiring title to the
Improvements ; provided further, that if the Leasehold Mortgagee
shall thereupon obtain title to the Improvements by way of
foreclosure* deed or in lieu of a foreclosure, the Landlord
shall have no further right of first refusal to purchase the
Improvements pursuant to Section 12 . 2 hereof upon a
reconveyance of the Improvements by the said Leasehold
Mortgagee .
A Leasehold Mortgagee who shall acquire title to the
Improvements by foreclosure deed or in lieu of foreclosure
shall thereafter assume the rights and liabilities of the
Tenant under this Lease (which shall not be construed to
constitute an assumption by the Leasehold Mortgagee or a
release by the Landlord of the Tenant ' s liabilities under this
Lease which accrued prior to the date of the conveyance of
title) . At such time as the Leasehold Mortgagee shall reconvey
the Improvements to a third party, the Leasehold Mortgagee
shall be relieved from all subsequent rights and liabilities
under this Lease and the acquiring party shall be required to
endorse this Lease agreeing thereby to assume the position as
Tenant , u
Section 7 . 5 - Mortgaging' by Landlord. During the term of
this Leas= Landlord shall not mortgage, encumber or otherwise
create a security interest affecting the fee interest in any
portion of the Land . Any such mortgage, security interest or
encumbrance created in violation of this covenant shall be
unauthorized and void . In addition to any other rights and
remedies of Tenant by reason of breach of this covenant , all
rights acquired under any such mortgage shall be subject and
subordinate to the rights and interest of Tenant under this
.Lease, the covenants , conditions and restrictions set forth
herein, and -the leasehold estate created hereunder .
SectionT 7 , 6 - Subleasing by Sublessees,. Any Sublessee
shall have no right to sublease the Leased Premises or its
interests in the Improvements , or to assign its obligations
under the Operation Agreements , in whole or in part , to any
other party without the prior written consent of the Landlord .
Any transfer to a subsidiary, parent corporation or other
affiliate of any Sublessee, or to any corporation or
partnership of which any Sublessee is a shareholder or partner,
shall not be deemed a disposition subject to this Section so
long as Sublessee has more than 50% of the voting rights in the
successor party.
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Section 7 . 7 - Specla 1 Provisions During he Term of
Su'bleses to Sublessee. If the Tenant shall sublease the Leased
Premises or lease the Building and other Improvements to any
Sublessee in compliance with the provisions of this Lease, the
following provisions shall apply:
i
(a) The Landlord, upon serving upon the Tenant any notice
of default pursuant to the provisions of Article X of
this Lease or any other notice under the provisions of
or with respect to this Lease, shall also serve a copy
of such notice upon any Sublessee at the addresses
provided for in this Article, and no notice by the
Landlord to the Tenant under this Lease shall be
deemed to have been duly given unless and until a copy
thereof has been so served.
(b) Any act required to be performed by Tenant pursuant to
the terms of this Lease may be performed by the
Sublessee occupying all or any part of the Leased
Premises and the performance of such acts shall be
deemed to be performance by Tenant and shall be
acceptable as Tenant ' s act to Landlord .
(c) If, for any reason, this Lease and the leasehold estae
of Tenant hereunder is terminated by Landlord by
reason of an Event of Default (as defined hereinafter)
in accordance with the terms of this Lease prior to
the conclusion of the Term, Landlord covenants and
agrees that such termination of this Lease will not
automatically result in the termination of the
Operation Agreements or any lease or sublease to the
Sublessee affecting the Leased Premises and that the
Sublessee shall have the same rights as the holders of
Leasehold Mortgages provided by Sections 7 . 3 (c) and
7 . 3 (d) hereof, except that a proper Notice to Succeed
issued by the holder of any Leasehold Mortgage shall
take priority over a Notice to Succeed from the
Sublessee . In the event, however, that no holder of a
Leasehold Mortgage or the Sublessee shall timely
exercise the rights provided for in Sections 7 . 3(c) or
7 . 3 (d) , as may be applicable, to succeed to the
interests , rights and obligations of the Tenant in
this Lease, the Operation Agreements and any lease or
sublease to the Sublessee shall thereupon terminate.
ARTICLE VIII
Insurance and Indemnification
Section_ 8 . 1 - Public Liability Insurance . At all times
subsequent to the Commencement Date of this. Lease and during
its Term, the Tenant shall keep the Leased Premises and
Improvements insured at its sole cost and expense against
claims for bodily injury, personal injury and property damage
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under a policy of comprehensive public liability insurance with
limits no less than One Million Dollars ($1 , 000, 000) for injury
to any one person and for any one accident and Five Hundred
Thousand Dollars ($500 , 000) for property damage. Such policy
shall name the Tenant, any Sublessee, the Landlord and all
holders of Leasehold Mortgages as the insureds . Upon written
notice by Landlord to Tenant, the parties shall consult upon
the adequacy of the liability coverage and, if necessary in
light of changed circumstances in order to provide the Landlord
with protection against claims in future years at least
equivalent to that provided at the Commencement Date of this
Lease, the Tenant shall increase the limits of liability
coverage accordingly.
Section B . 2 - Casualty Insurance. At all times subsequent
to the Commencement date of this Lease and during its Term, the
Tenant will keep insured the Building and other Improvements
upon the Leased Premises against all loss or damage by fire and
other casualties under what is generally termed in the
insurance trade as "extended coverage" , which said insurance
will be maintained in an amount. which will be sufficient to
equal the full replacement value of the Improvements and all of
such policies of insurance shall include the name of the
Landlord as one of the parties insured thereby and shall fully
protect both the Tenant, the holders of all Leasehold
Mortgages , and the Landlord as their respective interests may
appear . During the course of construction of any Improvements ,
the Tenant ' s aforesaid obligation shall include the purchase of
so-called "builder ' s risk" insurance written on a completed
value basis, utilizing a maximum value at completion of not
less than the aggregate contract price for the construction of
the Improvements .
Section 8 . 2 1 - Restoration After Casualty. In the event
of damage to or destruction of the Building or other
Improvements by fire or other casualty for which insurance
shall be payable and as often as such insurance money is paid
to the Landlord and/or the Tenant , said sums so paid and not
retained by the holders of all Leasehold Mortgages sh,:.11 . be
deposited in a bank account designated by the Tenant and
approved by the holders of all Leasehold Mortgages and (subject
to the consents of the holders of all Leasehold Mortgages)
shall be made available to the Tenant for the reconstruction or
repair, as the case may be, of the Building or other
Imp-ovements damaged or destroyed and shall be paid out in
accordance with procedures established by the holders of all
Leasehold Mortgages; provided, however, that the Tenant shall
have the option not to reconstruct or repair and to terminate
this Lease, and to retain the insurance proceeds for itself and
the holders of Leasehold Mortgages , as their interests may
appear , in the event that the Tenant shall remove all
Improvements and debris and shall restore the Leased Premises
as reasonably feasible to the same condition as at the
commencement of this Lease, excepting only the resulting
-21--
reimbursements to its insurer, but such waiver shall
only be to the extent of the amounts actually paid by
an insurance carrier and the amounts of any
deductibles and self-retained limits, but shall not
extend to uninsured losses (unless the failure of the
Tenant or any Sublessee to have such insurance is a
violation of that , party' s obligations under this
Lease) or losses in excess of policy limits required
by this Lease or otherwise in effect , whichever are
greater .
Section 8 . 4 - .-.Certificate of Insurance. At or prior to the
commencement Date of this Lease, the Tenant shall provide the
Landlord with certificates of insurance certifying that all
insurance required to be carried by the Tenant under the terms
of this Lease is in full force and effect and certifying that
such insurance may not be cancelled without thirty (30) days
written notice to the Landlord. No less than- thirty (30) days
before the expiration of any such insurance policy, the Tenant
shall furnish the Landlord with a new certificate of insurance
certifying that such policy has been renewed or replaced .
Section 8 . 5 - Blanket Insurance . Nothing in this Article
shall prevent the Tenant from taking out insurance of the kind
and in the amounts provided for in this Article under a blanket
insurance policy or policies covering other properties as well
as the Leased Premises , provided, however, that any such policy
of policies of blanket insurance;
(a) Shall specify therein, or the tenant shall furnish the
Landlord with a written statement from the companies
issuing such policies specifying , the amounts of the
total insurance allocated to the Leased Premises ,
which amounts shall not be less than the amounts
required under this Article, and that such amounts so
specified shall be sufficient to prevent any one of
the insureds from becoming a co-insurer within the
terms of the applicable policy or policies ; and
(b) Shall , as to the Leased Premises , otherwise comply
with the provisions of this Article as to endorsements
and coverage .
Section 8 . 6 -- Qualification of , insurers . All insurance
provided for in this Lease shall be effected under enforceable
policies issued by insurers of recognized responsibility,
licensed to do business in the Commonwealth of Massachusetts .
Section 8 . 7 -- Tenant ' s Indemnification. The Tenant shall
defc -id, indemnify and save harmless the Landlord and its
officers , directors, agents and employees against and from all
liabilities, suits , actions , damages , and expenses, penalties ,
claims and costs which may be imposed upon or incurred by or
asserted against the Landlord or its officers , directors ,
agents or employees by reason of , or in any way arising out of ,
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the Tenant ' s or any Sublessee ' s use or occupancy of the Leased
Premises or the Improvements or any part thereof or occasioned
wholly or in part by any act or omission of the Tenant or the
Sublessee or their respective agents , contractors , employees ,
servants , invitees, or licensees . In case any action or
proceeding is brought against Landlord by reason of any such
claim, Tenant, upon timely written notice from Landlord with
complete details of such action or proceeding and complete
copies of all materials related thereof, shall , at Tenant ' s
expense, arrange for the defense of such action or proceeding .
Section . 8 - T nant ' s Failure to Insure. In the event
that the Tenant shall fail to procure or to maintain in full
force and effect any of the policies of insurance required by
this Article, Landlord may, at its sole option, procure and pay
for such insurance. In such event, the Tenant shall be
responsible to reimburse the Landlord for all expenses incurred
in obtaining the required insurance, as additional rent ,
payable upon written demand from the Landlord.
ARTICLE IX
_ondemnation
Section 9 . 1 - Taking of All . If at any time during the
Term of this Lease, all or materially all of the Leased
premises, or so much of the Leased Premises that the remaining
area can no longer reasonably be used for the purpose for which
the same was being used prior to such taking, shall ' be taken by
the exercise of the right of condemnation or eminent domain or
for any public or quasi-public use by any public authority, -
this Lease shall terminate and expire on the date that Tenant
shall be deprived of possession by the taking authority, and
the Basic Rent provided to be paid by Tenant shall be
apportioned and paid to the date of such taking .
Section 9 . 2 - Taking of Less Than All . If at any time
during the Term of this Lease any portion of the Leased
Premises shall be taken by a public authority in any eminent
domain or comdemnation proceeding so that the remaining area
can continue to be reasonably used for the purpose that the
.entire Leased Premises was used prior to such taking, then this
Lease shall , continue and the Basic Rent shall be reduced for
the remainder of the Term equal to the proportion of the rental
value of the Leased Premises so taken.
Section 9 . 3 Awards . Any award received or sum accepted
by the party or parties in interest by a compromise disposition
or otherwise, at or as a result of such taking , shall be
distributed as follows :
(a) All amounts payable for the Leased Premises , as
unimproved by the Improvements , shall go to the
Landlord .
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(b) All amounts payable for the Personal Property of the
Tenant, the Sublessee or any other party shall go to
the party owning the property.
(c) All amounts payable for the Improvements in the event
of
( 1) a taking of less than all under Section 9 . 2 shall
go to the Tenant, or the holders of Leasehold
Mortgages, as their interests may appear; or
(2) a taking of all under Section 9 . 1 shall go :
(a) first , to the holders of Leasehold
Mortgages , in amounts sufficient ;:ay the
unpaid balances of any loans secured by the
Improvements,
(b) then, to the Tenant : ( i) the remaining
balance if such taking occurs during the
Initial Term; ' and ( ii) if such taking occurs
during any Option Term, the remaining
balance multipligd by a fraction, the
numerator of which is the number of years
remaining in the Term of this Lease
(including all Option Terms) -nd the
denominator of which is 45 _er of
years in the Term after the lniui a1 Term) ,
and
(c) then, to the Landlord, the remaining balance
of the proceeds , if any.
If the condemning authority or any court hearing an appeal
from such taking , shall apportion the award between the
Improvements and the Leased Premises , such apportionment shall
be binding on the parties . The Tenant and the Leasehold
Mortgagee shall have the right to participate in any legal
proceedings and/or settlement discussions concerning a taking
of their respective interests in the Improvements or its
Personal Property.
ARTICLE X
Default by Tenant
se ion 10 . 1 - Default . The following events shall
constitute a default by the Tenant in its obligations under
this Lease ( "Events of Default" ) :
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( a) Written notice by the Landlord to the Tenant of
failure of the Tenant to pay the Basic Rent or
additional payments due hereunder on the respective
due date thereof and such failure shall remain uncured
within fifteen ( 15) days thereafter .
(b) Written notice by the Landlord to the Tenant of
neglect or failure by the Tenant to perform or observe
any of the other covenants or undertakings herein on
its part to be performed or observed and Tenant fails
to remedy such default within thirty (30) days
thereafter, or if more than thirty (30) days is
reasonably required for its cure, failure of Tenant to
proceed within such thirty (30) day period to commence
to cure the same and thereafter to prosecute the
curing of such default with due diligence; or
(c) The Tenant makes as assignment for the benefit of
creditors , files a voluntary petition in bankruptcy,
is adjudicated insolvent or bankrupt, petitions or
applies to any tribunal for any receiver or any
trustee of or for the Tenant of any substantial part
of its property, commences any proceeding relating to
the Tenant or any substantial part of its property
under any reorganization, arrangement, readjustment of
debt, dissolution or liquidation law or statute of any
jurisdiction, whether nor or hereafter in effect, or
there is commenced against the Tenant any such
proceeding which remains undismissed for a period of
thirty (30) days , or any order approving the petition
in any such proceeding is entered, or the Tenant by u.
any act indicates its consent to, or acquiescence in,
any such proceeding or the appointment of any receiver
of or trustee for the Tenant of any substantial part
of its property, or suffers any such receivership or
trusteeship to continue undischarged for a period of
thirty (30) days .
Section 10 . 2 - Landlord ' s Rights on Default . Upon the
occurrence of any Event of Default in the payment of Base Rent
or any additional amounts due hereunder, interest shall be
. assessed on the overdue payments at the rate of ten percent
( 10%) per annum from the due date of the payment until the date
paid . Further, upon the occurrence of any Event of Default
under Section 10 . 1(a) or in the event Tenant violates the
provisions of Article III or Article XII and fails to remedy
such within the period set forth in Section 10 . 1 (b) above, or
upon the occurrence of any other Event of Default which is not
remedied within the time period set forth in Section 10 . 1 (c)
and concerning which the Tenant has not filed a Petition for
Declaratory Judgment in a court of competent jurisdiction,
within said period, challenging the , existence of the Event of
Default , or upon a final judgment in such a Declaratory
Judgment action in favor of the Landlord, the Landlord may,
-26-
subject to the rights of the holders of Leasehold Mortgages and
any Sublessee provided for in Sections 7 . 3 (c) and 7 . 3 (d) of
this Lease and subject to the rights of any trustee in
bankruptcy to assume this Lease, upon ten ( 10) days notice to
Tenant, enter upon the Leased Premises, and the Improvements ,
and take possession of the same and expel the Tenant and those
claiming through or under the Tenant, including the Sublessee,
and remove their effects by reasonable force, if necessary,
without being deemed guilty of any manner of trespass and
without prejudice to any remedies which might otherwise be used
for arrears of rent or preceding breach of covenant subject
however to the rights of any residents or patients and to any
requirement•' of law. Upon such entry, this Lease shall
terminate, and the Tenant covenants that, in case of such
termination, the Tenant shall remain and continue liable to the
Landlord for all amounts due the Landlord under this Lease as
of the date the Landlord regains possession of the Leased
Premises . The Tenant further agrees that , upon the occurrence
of any Event of Default under Section 10 . 1 (a) or a violation of
Article III or Article XII which is not remedied within the
time period set forth in Section 10 . 1(b) , or upon the
occurrence of any other Event of Default which is not remedied
within the time period set forth in Section 10 . 1 (b) ( and
concerning which the Tenant has not filed a Petition for
Declaratory Judgment in a court of competent jurisdiction,
within said period, challenging the existence of the Event of
Default, or upon a final judgment in such a Declaratory
Judgment action in favor of the Landlord, the Landlord may
serve upon the Tenant a written notice of its intent to take
title to the Improvements (the "Notice of Title" ) , whereupon,
subject to the rights of the holders of Leasehold Mortgages and
the Sublessee provided for in Sections 7 .3 (c) , 7 . 3 (d) , and
7 . 7(c) , the title to the Improvements shall vest in the
Landlord free and clear of all encumbrances , including
Leasehold Mortgages and Operation Agreement . In the event that
the Landlord shall take possession of the Leased Premises and
the improvements and shall serve a Notice of Title, the parties
agree that the Tenant shall have no further obligations to the
Landlord for future payments of Base Rent or otherwise under
this Lease . Alternatively, if the Landlord shall tame
possession of the Leased Premises and the Improvements without
serving a Notice of Title, the Tenant agrees that it shall
remain and continue liable to the Landlord in an amount equal
to the total rent reserved for the balance of the current term
of this Lease less the net amounts (after deducting the
expenses of repair, renovation or demolition) which the
Landlord realizes , or with due diligence should have realized,
from the reletting of the Leased Premises , the Landlord shall
have the right from time to time to relet the Leased Premises
upon such terms as it may deem fit, and if a sufficient sum
shall not be thus realized to yield the net rent required under
this Lease, the Tenant agrees tb satisfy and pay all
deficiencies as they may become due during each quarter of the
balance of the current term of this Lease. The rights and
-27-
remedies given to the Landlord in this Lease are distinct ,
separate and cumulative remedies, and no one of them, whether
or not exercised by the Landlord, shall be deemed to be in
exclusion of any of the others herein or by law or equity
provided .
Section 10 . - N n-Waiver . Either the Landlord ' s or the
Tenant ' s failure to act upon the breach of any covenants of
this Lease by the other shall in no way constitute a waiver of
the rights of such party, at any time in the future, to act
upon any such default; nor shall any failure to act prevent
either the Landlord or the Tenant from acting in the event of
any other oi further breach of the other party' s covenants . No
provision of this Lease shall be deemed to have been waived
unless such waiver shall be in writing signed by the Landlord
or the Tenant., as the case may be, or unless otherwise provided
for in this Lease .
ARTICLE XI
Termination and Surrender
Section 11 . 1 - Expiration. This Lease shall expire as
provided for under Section 1 . 6 and 1 . 7 . This Lease may be
earlier terminated under Section 8 . 2 . 1 , Section 9 . 1 or Article
X.
Section 11 . 2 - Title ,, to improvements . Upon the expiration
of this Lease, or termination of this Lease accompanied by a
proper Notice of Title, title to Improvements shall pass to the
Landlord without the execution of any document or the
requirement of any act by the Tenant . Notwithstanding the
foregoing , the Tenant agrees to execute any and all documents
which the Landlord may reasonably request to evidence or give
effect to such passage of title.
Section 11 . 3 - Surrender of Premises .
( a) The Tenant covenants and agrees with the Landlord
that, at the expiration of this Lease or at the
earlier termination of this Lease for any cause herein
provided, the Tenant will peaceably and quietly
deliver up to the Landlord possession of the Leased
Premises and all Improvements , and including any
fixtures which Tenant may have brought , placed or
constructed upon the premises , in the same condition
and state of repair as at the commencement of this
Lease, reasonable wear and tear excepted and except as
otherwise provided for in this Lease .
(b) The Landlord agrees that ( i) all machinery and
equipment and appurtenancet thereto which are not
fixtures installed in the Leased Premises by or in
behalf of the Tenant , and ( ii ) all furniture,
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furnishings and inventory installed in the Leased
Premises shall be deemed to remain personal property
and that all such machinery, equipment , appurtenances ,
furniture and furnishings of the Tenant or of any
employee, agent or subcontractor of the Tenant may be
removed prior to the expiration of this Lease or its
earlier termination for any cause herein provided for;
but the Tenant shall repair any damage occasioned by
such removal . Any such property which may be removed
pursuant to the preceding sentence and which is not so
removed prior to the expiration or earlier termination
of this Lease may be removed from the Leased Premises
by.' the Landlord and stored for the account of the
Tenant; and if the Tenant shall fail to reclaim such
property within sixty (60) days following such
expiration or earlier termination of this Lease, such
property shall be deemed to have been abandoned by the
Tenant and may be appropriated, sold, destroyed or
otherwise disposed of by the Landlord without notice
to the Tenant and without obligation to account
therefor .
ARTICLE XII
Concluding Provisions.
Section 12 . 1 - Entir_e_._nreement. This Lease contains the
entire understanding of the parties with respect to the Leased
Premises . There are no oral understandings , terms or
conditions, and no party has relied upon any representation,
express or implied, not contained in this Lease.
Section 12 . 2 -• Amendments . This Lease may not be amended ,
modified, altered or changed in any respect whatsoever , except
upon the express written consent of the Leasehold Mortgagee
having the senior lien on the improvements, which consent shall
not be unreasonably withheld (and subject to Section 7 . 3 ( f)
hereof) , and except by a further agreement in writing, fully
executed by each of the parties hereto.
Section 12 . 3 - construction. The parties agree that this
.Lease shall not be construed more severely against one of the
parties than the other .
Section 12 . 4 - Captions . The Captions of this Lease are
for convenience and reference only and in no way define,
describe, extend or limit the scope or intent of this Lease or
the intent of any provision hereof .
Section 12 . 5 - Notice. Any notice, demand, offer or other
written instrument ( "Notice" ) required or permitted to be
given, made or sent under this Lease shall be in writing ,
signed by or on behalf of the party giving such Notice and
shall be hand delivered or sent , postage prepaid, by Registered
-29-
or Certified Mail , Return Receipt Requested, or by Federal
Express overnight service, addressed as follows :
TO LANDLORD:
Mr .Richard D'Agostino
Executive Director
Lawrence Municipal Airport Commission
492 Sutton Street
North Andover , MA 01845
WITH A COPY TO:
Burton A. Shaker , Esq .
23 Main Street
Andover , MA 01810
TO TENANT:
Merrimack Valley Flyers Association , Inc.
1 Parker Street
Lawrence, MA 01843
WITH A COPY TO:
Jack B . Little , Esq .
114A Union Wharf
Boston, MA 02109
Any party may change its address set forth in this Section
by diving Notice to the other party in accordance with this
Section.
Section 12 . 6 - Recording of Lease. A memorandum of this
Lease, in statutory form, or this Lease may be recorded by the
Landlord or the Tenant , and all charges attributable to the
recording of this Lease or memorandum shall be paid by the
party so recording .
Section 12 . 7 - Counterparts . This Lease shall be executed
in one or more copies , each of which shall be deemed an
original .
Section 12 . 8 - Partial Invalidity. The invalidity of one
or more of the phrases, sentences,, clauses , Sections or
ARticles contained in this Lease shall not affect the remaining
portions so long as the material purposes of this Lease can be
determined and effectuated. If any portion of this Lease may
be interpreted in two or more ways , one or which would render
-30-
the portion invalid or inconsistent with the rest of this
Lease, it shall be interpreted to render such portion valid or
consistent .
Section 12 . 3 Estoppel Certificate. Landlord and Tenant
shall , from time to time upon request by the other , execute and
deliver to the other within thirty (30) days of such request, a
written declaration in recordable form: (a) ratifying this
Lease; (b) confirming the commencement and termination dates
thereof ; (c) certifying that this Lease is in full force and
effect and has not been assigned, modified, supplemented or
amended (except by such writings as shall be stated) ; (d)
stating that all conditions under this Lease to be performed by
Landlord or Tenant have been satisfied, or stating those
alleged to remain unsatisfied; (e) stating that there are no
defenses or offsets against the enforcement of this Lease by
Landlord or Tenant, or stating those claimed by the other
party; ( f) stating the date to which rent has been paid; and
(g) stating any such other matters as may be reasonably
requested by the other party.
Section 12 . 10 - Successors . This Lease shall be binding
upon and inure to the benefit of the parties and to their
respective heirs , personal representatives , successors and
assigns .
Section 12 . 11 - Number and Gender . Any reference to the
masculine gender shall be deemed to include the reminine and
neuter genders, and vice versa, and any reference to the
singular shall include the plural,, and vice versa , unless the
context otherwise requires .
Section 12 . 12 - Exhibits . All exhibits referred to in this
Lease shall be incorporated into this Lease by such reference
and shall be deemed a part of this Lease as if fully set forth
in his Lease .
Section 12 . 13 -- Massachusetts Law. This Lease shall be
governed by, construed and enforced in accordance with the laws
of the Commonwealth of Massachusetts .
Section 12 . 14 - No Joint Venture. Notwithstanding any
obligation from one party to the other herein, the parties
hereto state that they have not created and do not intend to
create by this Lease a joint venture or other partnership
relation between them, it being their sole purpose and intent
to create only a landlord-tenant relationship.
Section 12 . 15 -- „ Force Majeure. Except as otherwise
specifically provided elsewhere in this Lease, in any case
where either party hereto is required to do any act (other than
the Tenant ' s obligation to pay Base Rent or additional rent
under this Lease) , the time for such performance shall be
extended by the period of delays caused by fire or other
-31-
casualty, labor difficulties , shorages of labor , materials or
equipment, war, civil insurrection, government regulations or
other causes beyond the reasonable control of such party.
Section 12 . 16 Third Party Beneficiaries . This Lease
shall not be construed to be for the benefit of any third party
except, where applicable, the holders of Leasehold Mortgages
and any Sublessee, and its provisions may be enforced only by
the parties hereto and, where applicable, the holders of
Leasehold Mortgages and any Sublessee .
ARTICLE XTII
Miscellaneous
(a) The parties hereto adopt and incorporate herein by
reference as party of their new contract the following
executed documents :
Termination of Previous Lease Agreement
(b) The parties further agree that notwithstanding
anything to the contrary in the foregoing Lease, that
the following shall apply and supercede all previous
agreements and be controlling, in all events as
follows ;
( 1) Tenant shall be fully responsible for all
environmental and hazardous waste conditions and
removals necessitated therefrom.
(2) Tenant agrees to be subject to all municipal ,
state and federal rules and regulations
including , but not limited to, those promulgated
by Landlord, MAC and FAA.
(3) Tenant agrees to comply with all federal and
state non--discrimination statutes .
(c) Tenant reserves unto itself , its successors and
assigns , for the use and benefit of the public a right
of flight for the passage of aircraft in the airspace
above the surface of the real property (hereinafter
described) together with the right to cause in said
airspace such sound as may be inherent in the
operation of aircraft, now known or hereafter used for
the navigation of or flight in said airspace, together
with the emission of fumes or particles incidental to
aircraft navigation, and for the use of said airspace
for the landing on, taking off from or operating on
Lawrence Municipal Airport ,
-3 2-
i
(d) Tenant expressly agrees for itself , its successors and
assigns to prevent the use of the premises for
purposes which will create or result in hazards to
flight such as, but not limited to , purposes which
will (i) produce electrical interference with radio
communications , ( ii) make it difficult for pilots to
distinguish between airport lights and others , ( iii)
project glare in the eyes of pilots, ( iv) impair
visibility in the vicinity of the airport , or (v)
otherwise endanger the landing ► take-off or
maneuvering of aircraft .
(e) Landlord retains the continuing right in the subject
property to prevent the erection or growth of any
building, structure, tree, or other object extending
into the airspace above the minimum requirement of
federal and state authorities and to remove from said
airspace, at the Tenant ' s expense or at the sole
option of Landlord, as an alternative, to mark and
light as obstructions to air navigation, any such
building, structure, tree, or other object now upon,
or which in the future may be upon the property
together with the right of ingress to, passage over,
and egress from Tenant ' s property for the above
purposes .
(f) Tenant expressly agrees for itself, its successors and
assigns, that the reservations and restrictions set
forth in this instrument shall run with the land which
shall be the servient tenement, it being intended that
the lands now and hereafter comprising the airport
shall be the dominant tenement ; excepting, however,
that such reservations and restrictions shall become
void and of no force and effect on such date as the
lands comprised in the aforesaid airport shall cease
to be used for airport purposes .
(g) Tenant for itself, its heirs, personal
representatives , successors in interest and assigns, do
hereby . agree that if any aeronautical services or
activities are to be offered, performed or conducted
upon the premises that :
In the exercise of the rights and privileges granted
for the furnishing of aeronautical services to the
public, Tenant will :
( 1) furnish said service on a fair, equal , and not
unjustly discriminatory basis to all users
thereof , and
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(2) charge fair, reasonable, and not unjustly
discriminatory prices for each unit or service;
provided that Tenant may be allowed to make
reasonable and nondiscriminatory discounts ,
rebates or other similar types of price
reductions to volume purchasers .
It is mutually understood and agreed by the parties
hereto that nothing contained in this Agreement shall
be construed as granting or as authorizing the
granting of an exclusive right within the meaning of
Section 308(a) of the Federal Aviation Act of 1958 .
(g) Tenant for itself, its heirs , personal
representatives, successors in interest , and assigns,
as a part of the consideration hereof , does hereby
covenant and agree as a covenant running with the land
that in the event facilities are constructed,
maintained, or otherwise operated on the said property
described in this lease for a purpose for which a DOT
program or activity is extended or for another purpose
involving the provision of similar services or
benefits, Tenant shall maintain and operate such
facilities and services in compliance with all other
requirements imposed pursuant to 49 CRF Part 21,
Nondiscrimination in Federally Assisted Programs of
the Department of Transportation, and as Regulations
may be amended.
(h) Tenant for itself, its personal representatives,
successors in interest, and assigns as a part of the M'
consideration hereof , does hereby covenant and agree
as a covenant running with the land that: ( 1) no
Person on the grounds of race, color , or national
origin shall be excluded from participation in, denied
the benefits of, or be otherwise subjected to
discrimination in the use of said facilities, (2) that
in the construction of any improvements on, over, or
under such land and in the furnishing of services
thereon, no person on the grounds of race, color, or
national origin shall be excluded from participation
in, denied the benefits of , or otherwise be subjected
to • discrimination, (3) that Tenant shall use the
premises in compliance with all other requirements
imposed by or pursuant to 49 CRF Part 21 ,
Nondiscrimination in Federally Assisted Programs of
the Department of Transportation, and as said
Regulations may be amended .
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I
Dated this day of 2 91.
LANDLORD :
LAWRENCE MUNICIPAL AIRPORT
COMMISSION
BY :
TENANT:
MERRIMACK VALLEY FLYERS ASSOCIATION,
,I
Y).
GUARANTEE
FOR CONSIDERATION PAID, We
and hereby guarantee all Tenant ' s
obligations contained in the aforementioned Lease .
individually
Individually
35 -
COMMONWEALTH OF MASSACHUSETTS
Essex , SS .
The foregoing instrument was acknowledged before me this
day of , 199q by ,
of the Lawrence Municipal Airport Commission, a
Massachusetts municipal non--profit corporation, on behalf of
the corporation..
Notary Public
COMMONWEALTH OF MASSACHUSETTS
Essex , SS.
The foregoing instrument was acknowledged before me this
day of 199q by ,
of a
Massachusetts corporation, on behalf of the corporation .
Notary Public
COMMONWEALTH OF MASSACHUSETTS
Essex , SS .
The foregoing instrument was acknowledged before me this
day of , 199Y by
and individually .
Notary Public
36
LEASE AMENDMENT
it is agreed by and between Merrimack Valley Flyers
Association, Inc. and the Lawrence Municipal Airport
Commission that Exhibit A referred to in Article I of said
Lease shall be completed and presented to the Lawrence
Municipal Airport Commission no later than 5: 00 p.m. on June
20 , 1994 , and is to be in proper form which is acceptable to
the Commission.
if the foregoing is not accomplished or if the Exhibit
is not acceptable to the Commission, the aforementioned Lease
dated June 9, 1994 , shall be voided at the option of the
Commission.
Dated this 9th day of June, 1994 .
Lawrence Municipal Airport
Commission
a��By: r —
Merrimack Valley Flyer:
Association, Inc.
1, . 2 ' �, '
EASE AMENDMENT
H. is agreed by and between Merrimack Valley Flyers
Association, Inc. and the Lawrence Municipal Airport
Commission that Exhibit A referred to in Article I of said
Lease shall be completed and presented to the Lawrence
Municipal Airport Commission no later than 5: 00 p.m. on June
20 , 1994 , and is to be in proper form which is acceptable to
the commission.
If the foregoing is not accomplished or if the Exhibit
is no•k acceptable to the Commission, the aforementioned Lease
dated June 9 , 1994 , shall be voided at the option of the
commission.
Dated this 9th day of June, 1994 .
Lawrence Municipal Airport
commission
By-. L
Merrimack Valley Flyers
Association, Inc.