HomeMy WebLinkAbout1993-10-25 93-497 ORDERCOUNCIL ACTION 9}691
ITem No.
Data 10-25-93
Item/Subjectz Authorizing the City Manager to Execute Certain
Documents Concerning Telford Aviation, Inc. and
Jet Source International, Inc.
esponsible Department: Legal
Commentary:
As the Council is aware, Telford Aviation, Inc. Is conducting
aircraft repair operations at RIA. They are replacing and
subsuming the operations of Aerofusion. By Council Order 93-452 a
First Amendment to the Telford lease was authorized which expanded
the authorized activities of Telford under their lease with the
City. The Airport Committee has met a number of times to discuss
aircraft maintenance and repair issues Bud specifically the
transfer of operations from Aerofusion to Telford and Jet Source
International (JSI). SSI is a separate corporation from Telford,
(cont'd on next page)
Budget Approval:
�" Finance Director
Legal Approval: �SSIsfG� �ir•i far- (aa
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Introduced For
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Referral Page I of 16
Department E
Nana�garR's�C}o:mnent�s:
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City Manager
Associated Information:
Assign Ment 6
Assumption of Lease, Escrow
Agreement, First Amendment to Indenture of Lease (Telford -
previously approved C.O.
93-452)
Budget Approval:
�" Finance Director
Legal Approval: �SSIsfG� �ir•i far- (aa
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Referral Page I of 16
_2_
but they have the came corporate president, Telford Allen. JSI, in
the process of acquiring Aercfueion, has requested assistance from
the Small Business Administration (SBA) and Gardiner Savings
Institution. As part of the $180,000 financing package, SSA has
required certain conditions in exchange for its guarantee of the
loan. JSI and Aerofusion closed in escrow on 10/15/93 and have 30
days to get certain City of Bangor approvals.
The Airport Committee has been briefed on these new developments.
They are in agreement that the City should execute the documents
necessary to facilitate the operation of Telford and JSI at BIA so
long as the City's interests are not adversely impacted. The
continuation of a viable general aviation repair station, air
charter/taxi and other Telford/JSI operations are beneficial to the
City and BIA. The documents to be executed will accomplish the
fallowing purposes, none of which adversely impact the City:
1) Acknowledge that a 2 -story prefabricated building
located in Building 800 is the personal property of
JSI.
2) Consent to Conditional Assignment of lease executed
separately by Telford and JSI with the Gardiner
Savings Institution. Said assignment shall only
take place if Telford or JSI default on their
obligations to Gardiner Savings Institution.
3) Consent to the Assignment of Aerofusion's lease
(Laurence A. Maul) to JSI.
4) Amend the JSI lease (formerly Aerofusion lease) to
grant a second renewal option from 4/30/96 through
10/31/2000, subject to appropriate rental to be
negotiated at the time option is exercised (Maul
had previously exercised Aerofusion's first renewal
option); authorising the lender (Gardiner Savings
Institution) to have 90 days after notice of
default of lease to enter premises to take
possession of personal property which lender has a
lien or security interest in that is not c red by
Bangor's first priority security interest in
Telford personal property; and updating of
indemnification (general, workers compensation,
hazardous materials) language consistent with
language contained in Council Order 93-452.
5) Amend the Telford lease to extend the option
period, if requested by Telford under the lease, to
October 31, 2000 (rental rate negotiable under
current lease at time option exercised); and the
same provision regarding Gardiner Savings
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institution's right ofentry. This will be the
Second Amendment to the Telford lease and the First
Amendment already covered the indemnification
issues.
6) State the unmortgaged status of Hangar 115 and
Building 600 to satisfaction of lender and SBA.
SBA required a ] year interest in the property by the borrower
(SSI, as well as Telford Allen persanally), hence the option period
extension, as well as the right of entry by the lender and
conditional assignment to the lender. Bangor is further protecting
itself by adding more expansive indemnification language to the JSI
lease through this amendment, especially with regard to hazardous
materials, as well as reserving the right to negotiate a new lease
payment at that time (thecurrent JSI lease hoe a fixed monthly
rate during the entire time of the option period). Bangor has a
firstpriority security interest in new inventory, spare used parts
and repair tools which it has previously sold to Telford. That
interest is not harmed by this current SBA guaranteed financing
transaction.
Time is of the essence for Telford and JSI. Your approval is
recommended.
C. ia5see's Indemnification with Respect to
Hazardous Materials - Without limiting the
Lessee's General Indemnification provided in
paragraph A above, Lessee hereby represents and
warrants that, as to Lessee Hazardous Materials,
as defined in this paragraph, Lessee shall:
1. Mediately forward to Lessor copies
of any and all notices, correspondence,
warnings, guidelines, or other written
materials hereafter received from, or given
to, any governmental authority in
connection with Lessee Hazardous Materials
and their relationship to the demised
premises;
2. Conduct and complete at its own
expense., all investigations, studies,
sampling and testing, and all remedial,
removal, and other actions necessary to
clean up and r all Lessee Hazardous
Materials in, under, upon, from, or
affecting the demised premises, to the
extent required by and in accordance with
all applicable federal, state, and local
laws, regulations, rules, ordinances, and
policies, and in accordance with orders and
directives of any federal, state, or local
gbverime,ntal authority; except that if a
dispute exists in good faith concerning
whether Lessee Hazardous Materials are
involved, the Lessor shall perform these
functions under subparagraph A(2) above,
subject to a determination under paragraph
E below.
3. Defend, indemnify, and hold harmless
Lessor, its employees, agents, officers and
directors, from and against any and all
claims, demands, penalties, fines, liabili-
ties, settlements, damages, Costs, o
expenses (including without limitation,
attorney, engineering, and consultant fees,
investigation, testing and laboratory fees,
court costs, and litigation expenses) of
whatever kind or nature, known or unknown,
contingent or otherwise, arising out of or
in any way related to;
a. the discovery, presence, disposal,
release, or threatened release of
Lessee Hazardous Materials within,
under, upon, from or into the demised
premises; _
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93-497
b. any personal injury (including
wrongful death) or property damage (real
or personal) arising out of or related
to Lessee Hazardous Materials, which
i concern the demised premises;
c. any legal action brought or
threatened before any court or agency,
settlement reached, or government
order relating to Lessee Hazardous -
Materials which concern the demised
premises; and/or
d. any violation of laws, orders,
regulations, requirements, or demands
of government authorities now in effect
or in effect at any time in the future,
which are based upon or in any way
related to Lessee Hazardous Materials
which concern the demised premises.
For this purpose, the term "Lesson Hazardous
Materials" shall mean flammable explosives,
radioactive materials, hazardous materials,
hazardous waste, hazardous Or toxic substances
or matter, oil or other petroleum products,
asbestos, chemical pollutants or materials in
the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, a
amended (42 U.S.C. Sec. 9601 at sem.), the
Hazardous Materials Transpoxtation Act, as
amended (49 U.S.C. Sec. 881 at sea.), the
Resource Conservation and Recovery Act, as
amended (42 U.S.C. Sec. 691 gt sec.), applicable
Maine statutes or any similar federal, state or
local law, or in the regulations adopted and
publications promulgated pursuant thereto, o
any other substances or materials constituting a
/ hazard, peril or threat to the health of
persona, animals, or plant life and used,
placed, stored or disposed of upon the demised
premises by Lessee, its contractors, customers,
licensees, agents, servants or employees; but
the term 'Lessee Hazardous Materials" shall not
include any such materials used, placed, stored
or disposed of upon the.demized premises by the
Lessor, its agents, servants or employees, or by
a third party other than contractors, customers
or licensees of the Lessee.
D. Joint Liability Retained. In the event
Leasee shall operate its General Aviation
aircraft repair facility through a subsidiary
corporation as permitted in Article IV(A) above,
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Lessee shall require such subsidiary corporation
to execute a document agreeing to indemnify and
hold and save the City of Bangor harmless in all
respects required of the Lessee under this
Article VII. In such event it is understood and
agreed that Lessee shall remain jointly and
severally liable with its subsidiary corporation
to the Lessor under all circumstances as
provided 1n this Article VII, and Lessor's
consent in Article N(A) above or otherwise to
Lessee's operation of its General Aviation
aircraft repair facility through a subsidiary
corporation shall in no manner be deemed to
relieve Leasee of its liability to the Lessor
under this Lease for the negligent or
intentional acts of such subsidiary corporation,
or of such corporation's, officers, agents or
employees.
In all other respects, the parties' Indenture of Lease and
each and every portion thereof shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this First
Amendment to 'Indenture of Lease on the day and year first above
written.
CITY OF BANGOR
(By)
Witness
(Title) City Manager
Printed Name: Edward A. Barrett
TELFORD AVIATION, INC.
(By)
Witness
(Title)
Printed Name:
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Assigned to Councilor Shubert October 25, 1993
CITY OF BANGOR
(TITLE.) (Orbtr,—.._.Authorizing- the -city -manager..to.-Execute..Certain.. _.
Documents Concerning Telford Aviation, Inc.
and Jet Source International, Inc.
By the City Cim it of Owl My ofBassot:
ORDERED,
THAT
Edward A. Barrett, City manager, is hereby
authorized to execute the following documents related to Jet Source
International, Inc.'s and Telford Aviation, Inc.'s operations in
Hangar 115 and Building 600 at Bangor International Airport;
provided, however, that all such documents be approved as to form
and content by the City Solicitor and Airport Directors
1. An Agreement, pursuant to 33 MRSA S 455, -
concerning the personal property status of
a two-story prefabricated building located.
in Building 600.
2.. Consent to separate Conditional Assignment
of Leases and Bents to Gardiner Savings
Institution, FSB from Telford Aviation,
Inc. and Jet Source International, Inc.
3. Consent to Assigtmient and Assumption of
Lease to Jet Source International-, Inc.
from Laurence A. Maul f/d/b/a hercfusion.
4. First Amendment to Indenture of Lease
between City of Bangor and Jet Source
International, Inc. (as assigned from
Laurence A. Maul f/d/b/a Aerofusion).
5. Second Amendment to Indenture of Lease
between City of Bangor and Telford
Aviation, Inc.
6. Letter stating that there are no private
mortgagees on either Building 600 or Hangar
115 at Bangor International Airport.
93-49]
ORDER
IN CITY COIMCIL
Title,
October 35, 1993
P e
Authorising the City Manager to Execute
Certain Documents Concerning Telford
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THIS AGREEMENT, made this _(L2 day of �2C7PBE)T, 1993,
,01, by and., between:
1 ", ';rye.'
LRUMNCB A. MAUI. of Bangor, Penobscot County,
State of Maine, formerly doing business ae
•�, 'Rerofuaion' and having a place of business -
Sn Bangor, Penobscot County, State of Heine
(hereinafter referred to ae "A86l9ftOr')
and
JET SOURCE INTERNATIONAL, INC., a business
corporation organised and existing under the
laws of the State of Maine and having A place
of business at Bangor. Penobscot County, State
of Maine (hereinafter referred to as "Assignee")
P1 T. P&&EIII P:
WHEREAS, the City of Bangor, Maine, as Lessor, entered into
e certain Indenture of Lease dated June 11, 1986, under term$ of
which Laurence A. Maul leased certain promises located at the
City's Bangor International Airports for a five-year term
commencing May 1, 1986 and renewable through April 30, 1996, as
more fully set out In said Indenture of Lease; and
WRBREAS, the termpp�� said Indenture of Lease was duly
extended through April 30(i'3988'9a provided therein, by a written �o Pz
notice given by Laurance A. Maul to the City of Bangor dated June
26, 1991; and
WHEREAS, Assignor currently occupies the promisee described
in said Indenture of Lease as Lessee thereof, said Indenture of
Lease being in full force and effect according to its termer
Assignor having committed no breach or default thereunder) and
WNEREASr Assignor desires to namlgn, and Assignee desires
to assume, said Indenture ofLease including all of Assignor's
right, title and interest in and t0 the promisee demised thereunder
for the balance of the current unexpired term; in each case with
affect from and after :C,-. Al 1993 (the "Effective Date'))
NOM, THEREFORE, in consideration of the premises end of the
respective undertakings hereinafter set forth, the parties hereby
mutually agree as follows;
DRAFT 7-30-93
93-49]
1. The Assignor hereby assignee transfers and convoys to
the Assignee all of the Assignor#• right, title and interest in and
to said Indenture of Lease and the promisee desired thereunder as
of and from the Effective Data through the balance of the current
unexpired term.
3. Assignee hereby accepts the assignment of Assignor's
right, title and interest In and to the Lease, and (a) assumes
k' paeformence of all of the obligations of the Lessee under the
Lease, and (b) further agrees to comply with and abide by all of
the termer conditions, provisions, and covenants on the part of the
Lessee under the Lease,. including without limitations the payment
of front and all other charges due under the Lease, with effect as
of and from the Effective Date.
#; 3. Assignor hereby agrees to indemnify and hold Assignee
harmless of and from any and all claims, liabilities, obligations,
costaand expenses of any nature whatsoever, includinge without
zlimitation, reasonable attorneys, fees, &Tieing out of any default
on the part of Assignor pursuant to the Lease up to the Effective
Date.
f. Assignee hereby agrees to indemnify and hold Assignor
harmless of and from any and all claims, liabilities, obligations,
costs and expenses of any nature whatsoevere including without
limitation, reasonable attorneys' fees arising by reason of any
default on the part of Assignee pursuant to the Lease and after the
Effective Date. -
5. This Assignment and Aeeumptlon of Leese agreement is
conditional upon the delivery by Lessor of any necessary consent
hereto.
IN WITNESS WHEREOF, the parties have executed this
Assignment and Assumption of Lease agreement on the day and year
first above rattan. �J
W n 88 LAUAANC6 A.MAUL
JET SOURCE. INTERNATIONALe
INC.
ey
Its P6lG/ T
Thereunto Duly Authorised
9}497
Pursuant to Article XVIII (R) of said Indenture of Laasa
dated June Ile 1966, the CITY OF RARGOR, as Lessor, releasee the
ASSIGNOR froi any of its obligations under &aid Indenture ot,tease
ariaing�oriceruing"after the •Effacti" Oats" of a&eigrvnent an
defined aboyel and hereby consents to the Assignment to and
Assumption of said Indenture of Lease by the ASSIGNER,
Nltneoet CITY OF BANGOR
Its
Thereunto Duly Authorized
Date
ESCROW AGREEMENT
AGREEMENT made this 15th day Of October, 1993 by and among the
following:
GARDINER SAVINGS INSTI'f UTION BSB a federally chartered savings
bank w a pr ne pe p ace o ua nese in Gardlne.r, County of
Rennebec, Sta ca of Maine,. he refnafter called "Bank*; -
JET SOURCE INTERNATIONAL INC. a corporation organized under
the laws o Me ne w t a p ace o usiness in Bangor, penobseot
County, M41ne, hereinafter called •BOa[owerxl/-
TELFORD , ALLEN Of r /n , County of
State o Ma neere naf t¢/prJ c8 e A en•1 and
LAURENCE A. MAUL of VIfACA✓ . County of
ereere after called au ; ISI
�
WITI HA $ETH: i
WHEREAS, Maul wishes to sell t0 Borrower and Borrower wishes to
buy from Maul certain assets of Maul utilised in his business which
has been operating under the name of "Ae[ofusion";
WHEREAS, it is convenient for the parties hereto to sign all
documentation regarding this transaction on this date;
WHEREAS, because certain amendments to the lessee affecting the
properties which are part of this transaction must be reviewed and
approved by the Bangor City Council at its meeting of October 235,
1993;
WHEREAS, the parties hereto all agree that the Said documents
signed today shall be held by George W. Heselton as Escrow Agent
pending action by the Bangor City Council;
NOW, THEREFORE, for good and Valuable consideration the receipt
of which is acknowledged by all parties hereto, each from the Other,
the parties agree as follows:
1. That all documents regarding this transaction shall be signed
today.
2. That no funds shell be disbursed until the action required by
the Bangor City Council has boon formally taken by that Council
and Written confirmation of that action hal been reviewed and
approved by Bank.
3. That all documents signed this date shall be held by George W.
Heselton, attorney for Bank, as Escrow Agent, under the terms
of this Agreement.
4. That upon approval by Bank of the action Of the Bangor City
Council the Escrow Agent shall deliver ell documents t0 the
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parties entitled to them according to the closing agenda and
shall disburse all funds of this closing in accordance with the
Settlement Statement.
5. That in the event that the Bangor City Council does not take
the requestedgyq9jj ion, which action is set forth in Exhibit 'A"
attached heret07lblth thirty (30) days of this date, then this
transection snail, be terminated and ell documents held by the
Escrow Aggant shell be marked `VOID• and returned to the
a igner(el.
IN WITNESS WHEREOF, the parties hereto have set their hands and
seals as of the day and year first above written.
SIGNED, SEALED and DELIVERED
in Presence of
CARDS I NS IT TION. FSB
Sy:
R 414 it. an
Assistant VL a President
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No+
.. 93-497
EXHIBIT 'A•
Action requested by the Bangor City Council:
1. Authorize the Extension of the term In the Option Of Renewal in
the lease of the City Of Bangor to Telford Aviation, Inc. dated
September 1, 1989 to October 31, 2000.
2. Authorise the extension of the term in the Option of Renewal in
the lease of the City of Bangor to Laurence A. Maul dated June
11, 1986 to October 31, 2000.
4. Authorize the further Assignment of gold lease of September 1,
1986 (Bangor to Telford) from Jet Source International, Inc. to
Gardiner Savings Institution, FSH.
5. Authorize the Assignment of said lease of June 11, 1986 (Bangor
to Maul) to Jet Source International, Inc.
6. Authorize the Assignment of said lease of June 11, 1986 (Bangor
to Maul) from Jet Source International, Inc. to Gardiner
Savings Institution, ?Be.
7. Authorize the Amendment of both Said leases,to include the
following provision:
•Lender (Gardiner Savings Institution, FSB) shall have
the right, for a period of ninety (90) days following
receipt of written notice from Lessor to Lender of
termination of the Lease, to enter the leased premises
for the purpose of removing or selling thereat any or all
of the Leaeee's personal property on which Lender has a
lien or security Interest.'
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93-497
FIRST AMENDMENT TO
INDENTURE OF LEASE
This FIRST AMENDMENT TO INDENTURE OF LEASE, executed this
day of , 1993, by and between:
The CITY OF BANGOR, a municipal corporation
duly organized and existing under the laws
of the State of Maine and located at Bangor,
Penobscot County, State of Maine (hereinafter
'LESSOR-)
and
TELFORD AVIATION, INC., a business corporation
duly organized and existing under the laws of
the State of Maine and having its principal
office at Waterville, Somerset County, State
of Maine (hereinafter "LESSEE')
w 3 T 1i HBBE T H:
WHEREAS, LESSOR and LESSEE are parties to a certain Indenture
of Lease dated September 1, 1989 demising to the LESSEE certain
premises at LESSOR's Bangor International Airport, as more fully set
out in said Indenture of Lease; and
WHEREAS, LESSEE desires to operate a general aviation repair
station upon the premises demised in said Indenture of Lease, for the
purpose of providing aircraft maintenance, repairs and related
services; and
WHEREAS, LESSOR is agreeable to LESSEE'S intended use of the
premises demised under the parties' Indenture of Lease,
NOW, THEREFORE, in consideration of the foregoing recitals,
the parties hereby agree that Article IV(A) of the parties' Indenture
of Lease dated September 1, 1989 is hereby amended to read as
follows:
ARTICLE IV
USE OCCUPANCY AND IMPROVEMENTS OF PREMISES
(A) Lessee shall use, occupy, and maintain
the premises herein leased in a reasonably
businesslike, careful and nonhazardous manner on
account of fire for the purposes of operating a
General Aviation service and aircraft repair
facility based on specific uses herein listed,
ARTICLE VIZ
ElNiIFICATION AND COYENANT TO HOLD .HARMLESS
A. General Indemnification - The Lessee
agrees to indemnify and to s and hold Lessor
harmless from and against any and all claims of
whatever nature arising from any negligent act
or omission of the Lessee or Lessee's
contractora, licensees, agents, servants or
employees arising out of any accident, injury,
death or damage whatsoever caused to any person
or to the property of any .person occurring
during the term or any extension hereof in or
about the Lassoe's demised premises where such
accident, damage, death or injury is proximately
caused by any negligent act or omission on the
part of the Lessee or Lessee's contractors,
licensees, agents, servants or employees, or
from the use, placement, storage or disposal,
including accidental disposal, of any fuel,
solvent, lubricant, or any other volatile or
hazardous material on the leased premises by the
Lessee or by Lessee's contractors, customers,
licensees, agents, servants or employees.
B. Lessee's waiver of workers' Compensation
Immunity - Lessee hereby expressly agrees that
it will defend, indemnify and hold the City of
Bangor harmless from any and all claims made or
asserted by Lessee's agents, servants or
employees arising out of or in connection with
Lessee's activities under this Lease, including
employment-related claims. For this purpose,
Lessee hereby expressly waives .any and all
immunities it may have under Maine's Workers'
Compensation Act or other provisions of law i
regard to such claims made or asserted against
the Lessor by Lessee'sagents, servants or
employees. The indemnification provided under
this paragraph shall extend to and include any
and all'costs incurred by the City of Bangor to
answer, investigate, defend and settle all such
claims, including but not limited to the City of
Bangor's costa for attorneys fees, expert and
other witness fees, the cast of investigators,
and payment in full of any and all judgments
rendered in favor of Lessee's agents, servants
or employees against the City of Bangor in -
regard to claims made or asserted by such
agents, servantsor employees. Lessee shall
indemnify the Lessor for all such coats
notwithstanding any immunity from liability or
suit for such claims Lessee may otherwise enjoy
under Maine's Workers' Compensation Act or other
provisions of law.
-3-
93-69]
and for no other use whatsoever without the
prior expressed written consent of the Airport
Director. The General Aviation service to be
conducted by Lessee upon the demised premises
shall consist of a charter aircraft service or
so-called air taxi service, flying instruction,
aircraft rental, and aircraft maintenance within
the demised premisea, said maintenance to be
restricted to maintenance of aircraft owned by
Lessee, leased by Lessee from aircraft sales
companies, aircraft for which maintenance is
provided by Lessee under a leaseback arrangement
with private owners that provide for management
and use of said aircraft by Lessee over an
extended period of time. In conducting and
operating its General Aviation service, Lessee
shall meet and conform with the Minimum
Standards for General Aviation Service operators
on Bangor International Airport, said standards
prepared in written form and attached to this
Lease as exhibit C. The General Aviation
aircraft repair facility to be operated by the
Lessee upon the demised premises may provide
aircraft maintenance and repair services to
owned and non -owned aircraft, including but not
limited to those types of aircraft listed
above. Services to he provided may include
maintenance, repair, overhaul of propeller or
jet aircraft
raft and engines. Lessee shall not,
however, provide such services to multi -engined
aircraft engaged in scheduled or unscheduled
commercial transportation of passengers o
freight via SIA. Leasee may operate its General
Aviation aircraft repair facility upon the
demised premises through a subsidiary
corporation organized within the State of Maine
for that purpose, but such subsidiary
corporation shall independently comply with fire
and liability insurance and indemnification
requirements imposed by the Lessor or made
applicable to the Lessee under Articles v and
VII of this Lease. In operating its General
Aviation aircraft repair facility, Lessee or its
subsidiary shall conform with all applicable
Federal, State and local laws and regulations
concerning such repairs and maintain PAA
certification to operate such -a facility.
Lessee may also engage in sales, service and
repair of any and all types of marine or
aviational electronic equipment.
The parties further agree that Article VII of their
Indenture of Lease, dated September 1, 1989, is hereby amended to
read as follows:
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