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EXHIBIT 10.47
AGREEMENT FOR SALE OF LEASEHOLD
This Agreement ("Agreement") is made by and between Xxxxxx X. Xxxxxxx
("Seller"), a resident of Dallas County, Texas, and Kitty Hawk, Inc. ("Buyer"),
a Texas corporation, as follows:
R E C I T A L S
A. Seller is the owner and holder of a certain lease of real
property and improvements, including without limitation, an
aircraft hangar, located on the promises of Dallas/Fort Worth
International Airport, bearing D/FW Airport Lease No. 23555
and known generally as 0000 X. 00xx Xxxxxx, Xxxxxx/Xxxx Xxxxx
Xxxxxxx, Xxxxx 00000. Such lease, together with all
amendments and supplements thereto is hereafter referred to as
the "Lease." A true copy of the Lease is attached to this
Agreement as Exhibit "A" and incorporated herein by reference
for all purposes. A legal description of the leased land is
attached hereto as Exhibit "B" and incorporated herein by
reference for all purposes. The leased land and all
improvements and fixtures located thereon are hereafter
referred to as the "Leased Property."
B. Buyer is the current Sublessee of the Leased Property (the
"Sublease") and has been in possession of such Property since
March 1, 1993, and has all knowledge of the condition of the
Leased Property, including without limitation, the building
and all fixtures attached thereto, that it deems necessary to
make this Agreement. A true copy of the Sublease is attached
hereto as Exhibit "C" and incorporated herein by reference.
C. Buyer desires to purchase and acquire all of Seller's right,
title and interest in the Leased Property, and Seller desires
to sell, assign and convey to Buyer all of Seller's right,
title and interest to the Leased Property, all on the
following terms and conditions:
1. Subject to the approval of the Dallas/Fort Worth
Airport Board, Seller hereby sells, assigns,
transfers and conveys to Buyer, and Buyer hereby
accepts from Seller, effective the date of Closing,
all of Seller's right, title and interest in and to
the Lease, and the Leased Property, including without
limitation, all improvements, fixtures and personal
property located thereon owned by Seller, subject to
the terms and conditions herein set forth. Pending
the Closing of this Agreement,
AGREEMENT FOR SALE OF LEASEHOLD - PAGE 1 February 19, 1997
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Buyer's Sublease shall continue pursuant to its
terms.
2. The purchase price shall be $1,760,000 payable at
Closing in cash or by wire transfer received in
Seller's account on the day of Closing.
3. Except as specifically provided in paragraph 4
below, the Leased Property is being conveyed by
Seller and accepted by Buyer "AS IS, WHERE IS",
without warranty, express or implied, as to
condition, habitability, suitability for occupancy,
use or fitness for any particular purpose.
4. Seller warrants and represents to Buyer that:
a. Exhibit "A" is a true copy of the Ground
Lease of the land that is a part of the
Leased Property, between Dallas/Fort Worth
Regional Airport Board (the "Ground Lessor"),
and Seller as Successor-in-Interest of
Sedalia-Xxxxxxxx-Boonville Stage Line, Inc.;
the Ground Lease is in full force and effect,
and to Seller's knowledge, without default or
notice of default, and without any condition
known to Seller that would result in a
default with the passage of time;
b. Seller holds all rights and interests of
Lessee of the Premises under the Lease; and
has full right and authority to execute and
perform this Agreement, subject only to the
approvals required by the Dallas/Fort Worth
Airport Board;
c. There are no liens or encumbrances upon
Seller's interest in the Leased Property; and
d. Seller knows of no condition of the Leased
Property that might violate environmental
laws, except as disclosed in the Sublease.
Buyer acknowledges that in or around December
31, 1993, Seller caused to be removed four
underground storage tanks from the Leased
land.
5. Buyer hereby agrees to indemnify and hold Seller
harmless from any and all claims based on or arising
out of any State or Federal environmental rule and
regulation, including claims based on "hazardous
substances" as defined in Section 5.03
AGREEMENT FOR SALE OF LEASEHOLD - PAGE 2 February 19, 1997
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of Buyer's Sublease, save and except any such claim
based on or arising out of the four underground
storage tanks referenced in paragraph 4d above.
6. The Closing shall take place on February 1, 1997, or
as soon thereafter as Buyer and Seller shall obtain
the approval of the Assignment of the Lease from the
Dallas/Fort Worth Airport authority. If such
approval is not obtained by _____________, 1997, and
prior to receipt of such approval at any time after
such date either Buyer or Seller may terminate this
Agreement by written notice to the other.
7. This transaction is subject to receipt by Buyer and
Seller in form reasonably acceptable to them, that
the Dallas/Fort Worth International Airport Board
consents and agrees to the Assignment from Seller to
Buyer, and will release Seller from any further
obligations or liability under the Lease. In
connection with such consent, Buyer and Seller agree
to execute an "Agreement and Assumption of Lease" and
submit it to the Dallas/Fort Worth International
Airport Board for its approval, and to make such
modifications thereto as shall be required by the
Board and as shall be reasonably acceptable to both
Buyer and Seller. The form of the proposed Agreement
and Assumption of Lease is attached hereto as Exhibit
"D" and incorporated herein by reference for all
purposes.
8. Buyer and Seller shall each bear their own legal
expenses incurred in connection with this Agreement.
Buyer shall have the right, at its sole expense, to
obtain a Title Policy and/or Survey of the Leased
Property.
9. Upon Closing of this Agreement, the Sublease between
Buyer and Seller shall terminate, but neither the
Closing of this Agreement nor the termination of the
Sublease shall affect any provision of the Sublease
that is, by its terms, to survive termination.
10. Seller is also the owner and holder of a certain
Lease of Real Property and improvements at the D/FW
International Airport bearing D/FW Airport's Lease
No. _________________, and known generally as
________________________ Street, Dallas/Fort Xxxxx
Xxxxxxx, Xxxxx 00000, which is currently subleased to
GTE (the "GTE Lease"). Seller hereby grants to
AGREEMENT FOR SALE OF LEASEHOLD - PAGE 3 February 19, 1997
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Buyer a nonassignable option to purchase and acquire
the GTE Lease on the following terms:
a. The option must be exercised by notice in
writing from Buyer to Seller, received by
Seller within 180 days from the date of
Closing of this Agreement;
b. Sale must be closed with 3 months after
receipt of the notice of exercise;
c. The purchase price shall be $860,000 paid at
Closing in cash or by wire transfer received
by Seller on the date of Closing;
d. The property is sold "AS IS, WHERE IS"
without warranty, express or implied;
e. Seller must be released from all further
liability under the Lease by the D/FW Airport
Board, and the Tenant of the GTE Property, if
any; and
f. The sale and assignment is subject to the
approval of the D/FW Airport Board.
11. This Agreement may not be transferred or assigned by
Buyer without the express written consent of Seller,
which may be denied in Seller's sole discretion.
12. At Buyer's request, Seller has begun negotiations to
acquire from Sky Chefs, Inc., an assignment of lease
of a 20-foot strip of land out of D/FW Airport Lease
No. 25210, contiguous to the Eastern boundary of the
Leased Property described in this Agreement for
$10,000, plus expenses for relocating a fence on the
property line and legal costs of preparation of the
documents in form acceptable to D/FW Airport Board,
including the preparation of Surveyor- prepared
legal descriptions of both tracts, giving effect to
such transfer. Buyer and Seller each acknowledge and
agree that Seller is under no obligation to acquire
such assignment, but if he does acquire such
assignment, he will transfer it to Buyer "AS IS,
WHERE IS", without warranty, of any nature, express
or implied, subject only to D/FW Airport Board
approval, at his actual cost for such assignment,
including purchase money, and related attorneys'
fees, surveyor legal description fees and any related
costs of Sky Chefs
AGREEMENT FOR SALE OF LEASEHOLD - PAGE 4 February 19, 1997
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or D/FW which he pays; and Buyer hereby agrees to
purchase and acquire such Leasehold and land on such
terms if this Agreement is closed, and to lease such
property on the terms of the Sublease, if this
Agreement is not closed.
13. This Agreement together with any exhibits constitutes
the entire understanding of the parties with respect
to the subject matter hereof and shall not be amended
or modified except by written instrument signed by
all parties. All prior agreements or understandings
concerning the subject matter of this Agreement are
superseded hereby.
14. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective
successors, assigns, heirs, representatives and
estates, but no party may assign or delegate any of
their obligations or liabilities hereunder without
the prior written consent of the other party hereto.
EXECUTED this 6th day of December, 1996.
BUYER:
KITTY HAWK, INC.:
By: /s/ XXXXXXX X. XXXXXXXXX
-------------------------------
Its: Vice President
Address: 0000 X. 00xx Xxxxxx
X/XX Xxxxxxx, XX 00000
SELLER:
/s/ XXXXXX X. XXXXXXX
-----------------------------------
Xxxxxx X. Xxxxxxx
Address: 000 Xxxxxxx
Xxxxxx, XX 00000
AGREEMENT FOR SALE OF LEASEHOLD - PAGE 5 February 19, 1997
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Airport Board
Lease Agreement No. 23555H
EXHIBIT A
AGREEMENT OF LEASE
Between
Dallas/Fort Worth Regional Airport Board
And
Sedalia-Xxxxxxxx-Boonville Stage Line, Inc.
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Airport Board
Lease Agreement No. 23555H
AGREEMENT OF LEASE
State of Texas )
County of Dallas )
County of Tarrant )
This Agreement of Lease, made as of the 1st day of February, 1983 by
and between Dallas/Fort Worth Regional Airport Board (hereinafter called the
"Board") having an office at East Airfield Drive, Dallas/Fort Xxxxx Xxxxxxx,
Xxxxx 00000; and Sedalia-Xxxxxxxx-Boonville Stage Line, Inc. (hereinafter
called the "Lessee"), a corporation of the State of Missouri, having an office
and place of business at ) 0000 Xxxx Xxxxxxxxx Xxxxxxx, Xxxxxxxxx, Xxxxx 00000,
evidences the following:
WHEREAS, Lessee desires to construct and operate a maintenance hanger,
office building, and airfreight complex at the Dallas/Fort Worth Regional
Airport (hereinafter called the "Airport"); and
WHEREAS, Lessee desires to lease land from Board for the construction
of such maintenance hanger, office building, and airfreight complex as
aforesaid; and
WHEREAS, Board desires to lease to Lessee certain land at the Airport
for the purpose of Lessee's constructing and operating a maintenance hangar,
office building, and airfreight complex together with ancillary services; and
WHEREAS, Lessee desires to have facilities at the site financed by
mortgagees/lenders or other secure parties on the security of the leasehold
interests of Lessee.
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NOW, THEREFORE, for and in consideration of the premises, mutual
promises and other good and valuable consideration the parties hereto do hereby
agree as follows:
Section 1. Letting, Conditions of Letting, Property Description and
Height Description.
Board hereby lets to Lessee and Lessee hereby hires and takes from
Board at the Airport, the tract of land containing approximately 7.299 acres
such tract being described by metes and bounds on Exhibit A hereof and such
tract being hereinafter referred to as the "premises" together with the right
to the use and enjoyment of all improvements now or hereafter placed thereon by
the Lessee.
Except to the extent required for the performance of the obligation of
Lessee hereunder, nothing contained in this Agreement of Lease (hereinafter
called the "Agreement") shall grant to Lessee any rights whatsoever in the
airspace above the premises in excess of 100 feet above the present ground
level thereof.
Section 2. Term, Rental, Charges and Options.
This Agreement shall become effective as of December 6, 1982 (the
"Effective Date"), and unless otherwise terminated shall expire on December 31,
2007. Lessee shall pay Board an annual rental equal to the rental per acre paid
by Board's Signatory Airlines under the formula set forth in the Use Agreement
in effect between Board and such Signatories. The formula in such Use Agreement
provides that the rental per acre is computed by dividing the "Airport Services
Cost" (as defined therein) projected to be incurred by the Board during the
next succeeding fiscal year by the "Total Developed Acreage of the Airport" (as
defined therein) projected for the first day of the next succeeding fiscal
year. This present annual rental per acre is Eight Thousand Seventy-Six Dollars
($8,076.00), but as shown by such formula, it is subject
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to change from year to year. Rental shall be payable by Lessee to Board in
advance, the first installment to be payable on the first day of the month
following the date the premises, as developed property are furnished to Lessee
in accordance with Section 3 hereof, and on the first day of each month
thereafter throughout the Term hereof,
Lessee shall store its garbage, debris and other waste materials in a
clean and sanitary condition in trash receptacles, which Board shall provide at
the premises, the size, number and location of which shall be at the discretion
of the Board, but which shall in all events be adequate to meet the reasonable
needs of Lessee, and Board further agrees to periodically remove such trash
from THE receptacles. In consideration for the services hereinabove described,
Lessee shall pay a standard Airport fee, such fee to be periodically adjusted
in accordance with the debt service on the capital investment required, as well
as the operation and maintenance expenses incurred in the furnishing of such
service. The cost to Lessee for such service shall be reasonable and consistent
with other tenants on the Airport. Any Increase in such fee to Lessee shall be
preceded by thirty (30) days written notice.
Lessee shall have the option to extend the Term of this Agreement upon
the same terms and conditions herein stated for either one (1) or two (2)
periods of five (5) years each, provided Lessee shall notify Board of same not
less than six (6) months prior to the expiration of the initial Term herein,
and not less than six (6) months prior to expiration of First Extension, if
once extended.
Section 3. Construction
Lessee shall have the right to erect and construct improvements on the
premises, but prior to the commencement of construction, Lessee shall submit
preliminary plans, elevations,
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specifications and renderings, if necessary, descriptive of the proposed
construction to Board for approval of Board's Director of Planning and
Engineering (hereinafter referred to as the "Director"). The preliminary
submission by Lessee shall employ essentials of aesthetics, convenience,
function and design, and shall be compatible in such respect with those of the
Airport. Upon approval of such preliminary plans, Lessee shall prepare
complete plans and specifications of the proposed construction. A Construction
Application, final plans and specifications, when rendered, shall be submitted
to the Director for approval, or for required changes.
Lessee shall include in all construction contracts entered into by it,
in connection with any or all of the construction work aforesaid, a provision
requiring the contractor, or, in the alternative, Lessee, to indemnify, hold
harmless, defend and insure Board, the Cities of Dallas and Fort Worth, and
their directors, officers, agents and employees against the risk of legal
liability for death, injury or damage to persons or property, direct or
consequential, arising out of or in connection with the performance of any or
all of such construction work against the risk of claims and demands, whether
such claims and demands are just or unjust, when made by third persons arising
or alleged to arise out of the performance of the construction work, unless
same are caused by the negligence or willful act of Board, and Lessee shall
require the contractor to furnish liability Insurance in such reasonable
amounts as may be approved by the Executive Director of the Board.
Lessee shall also include in any construction contract such provisions
as may be reasonably required by the Board or its Executive Director relating
to the operations of the
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contractor on the Airport; such provisions interalia, may include the
requirement for a Payment Bond for any work in excess of $25,000.00 to be
performed by the contractor,
Prior to entering into any contract for construction work, Lessee
shall submit to the Director for approval the name of the contractor or
construction manager to whom Lessee proposes to award the contract for the
construction work. Director shall have the right to approve or disapprove any
such contractor.
Lessee further agrees that all construction work to be performed by it
or its contractor, including all workmanship or materials, shall be of first
class quality and shall be substantially in accordance with the plans and
specifications approved by Director. As used herein, the term "first class
quality" shall mean of the same quality as buildings for offices or training
already constructed on the Airport. Lessee agrees that it shall deliver to
Director "as built" transparencies of the improvements constructed by it and
all other construction which may be performed by it as aforesaid and shall,
during the term of this Agreement, keep said transparencies, if any, current,
showing therein any changes or modifications which may be made in or to the
improvements.
It is understood and agreed that the Premises are to be delivered to
Lessee by Board on or before effective date. The Board assures the Lessee that
adequate streets and necessary utilities (water, telephone, electricity, and
sanitary sewer), adequate to enable Lessee to conduct its business are in
reasonable proximity to the premises. Lessee, at its sole expense, shall make
such connections with the streets and utilities in a manner approved by
Director.
Board agrees that in the event it or its contractor shall engage in or
perform any construction work on the Premises, during the term of this
Agreement, Board, to the extent of its
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statutory liabilities, shall indemnify and hold harmless Lessee, its officers,
agents and employees against the risk of death, personal injury or property
damage, direct or consequential, arising out of or in connection with the
negligent performance of any or all such construction work performed by Board
or its Independent contractors. However, except as to any rights granted
herein to a Mortgagee (as defined herein) of the Lessee's leasehold estate
created hereunder, nothing in this Agreement shall be construed for the benefit
of third parties or to expand Board's limitation of liability for injuries or
damages in tort under the laws and court decisions of the State of Texas.
When the construction work hereinabove provided has been completed,
Lessee shall, within a reasonable time thereafter, deliver to Board a
certificate, certifying that the Premises and such other construction has been
constructed substantially in accordance with the approved plans and
specifications and in compliance with all laws, rules, ordinances and
governmental rules, regulations and orders. When Director is satisfied that
such construction is so in compliance, he shall deliver a Certificate of
Occupancy to Lessee.
All Improvements constructed on, installed upon, or affixed to the
Premises by Lessee as permitted by this Agreement shall be owned by Lessee
until expiration of the term or sooner termination of this Agreement, at which
time title to all of such improvements shall vest in the Airport and the Cities
of Dallas and Fort Worth. Notwithstanding the foregoing, the Lessee shall have
the right but not the obligation to remove its trade fixtures in accordance
with Section 24 hereof. Lessee shall have the right to claim the depreciation
deductions and investment tax credit under this Agreement, and on the
improvements constructed on the Premises and the equipment installed therein,
and Board shall in no event claim such deductions and credits.
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Lessee shall designate areas not to exceed twenty (20) feet in width
along the periphery of the Premises for use and to be maintained as landscaped
areas.
Lessee shall furnish to Board, within sixty (60) days after completion
of any construction on the Premises, a statement certified by an officer of
Lessee, showing the total cost of the capital Improvements, including
architects' and engineers' fees.
Section 4. Lessee Financing
Lessee shall have the right at any time and from time-to-time during
the Term hereof and during any Extended Term to mortgage, encumber, or
hypothecate the leasehold estate of Lessee created hereby and all right, title
and interest of Lessee therein. In the event that Lessee, pursuant to a
mortgage, deed of trust, or other instrument, mortgages or otherwise encumbers,
conveys, or transfers an interest in the leasehold estate of Lessee created
hereby, the mortgagee or other secured party or pledgee (the "Mortgagee") shall
in no event become liable to perform the obligations of the Lessee under this
Agreement unless and until said Mortgagee becomes the owner of the leasehold
estate pursuant to foreclosure, assignment in lieu of foreclosure, or
otherwise; and thereafter, said Mortgagee shall remain liable for such
obligations only so long as such Mortgagee remains the owner of the leasehold
estate. Any purchase money, mortgage or deed of trust delivered in connection
with any assignment of this Agreement by such a leasehold Mortgagee shall be
entitled to the benefit of all of the provisions of this Agreement with respect
to a leasehold mortgage.
If any Mortgagee requests any changes in this Agreement as a condition
to funding any loan to Lessee, Board agrees to cooperate in amending this
Agreement so long as the changes
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requested do not materially increase the obligations of, or decrease the rental
payable to, Board under this Agreement.
Section 5. Rights of User
Lessee may use the Premises for the following purposes only and for no
purposes whatsoever:
(a) For the maintenance. upkeep, repair and storage of aircraft
parts, and related equipment.
(b) For all purposes related to the gathering, receiving, storing,
delivery and shipping of property, freight, and cargo by air and ground
transportation systems.
(c) For a business office.
(d) For the parking of automobiles operated by the officers,
employees and business visitors of Lessee; and
(e) For any other purposes or activity for which the Airport Board
expressly, in writing, authorizes the Premises to be used.
Section 6. Ingress and Egress
(a) Lessee, its sublessees, its contractors, suppliers of
materials and furnishers of services, and employees and business invitees of
Lessee or its sublessees, shall have the right of ingress and egress between
the premises and a public right-of-way outside the Airport by means of an
existing access road known as West Airfield Drive, the same to be used in
common with others having rights of passage within the Airport, provided that
Board may from time to time substitute other means herein provided. If Board
does so substitute other means of paved and improved ingress or egress to the
premises herein provided, Board shall pay to Lessee, upon demand, all costs and
expenses incurred by Lessee in the redesigning and reconstruction of roadway,
or driveway and parking areas on the premises.
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(b) The use of such roadway shall be subject to the Rules and
Regulations of Board uniformly applicable to lessees of the Board at the
Airport.
Section 7. Governmental and Other Requirements
(a) Lessee shall procure from all governmental authorities having
jurisdiction of the operations of Lessee hereunder all licenses, franchises,
certificates, permits or other authorization which may be necessary for the
conduct of such operations.
(b) Lessee shall promptly observe, comply with, and execute the
provisions of any and all present and future governmental laws, ordinance,
rules, regulations, requirements, orders and directions which may pertain or
apply to its operations or the use and occupancy of the Premises hereunder and,
in addition, shall make all structural and nonstructural improvements, repairs
and alterations to any and all facilities located on the premises which may be
necessary. Where any such improvements, repairs, and alterations cannot be
amortized over the remaining Term or Extended Term of this Agreement, Lessee
shall have the right to seek an extension of this Agreement. Lessee shall have
the right, after written notice to Board, to contest by appropriate legal
proceedings, diligently conducted in good faith, the validity or application of
any such law, ordinance, rule, regulation, requirement, order, and direction,
and, with the exception of any such law, rule, regulation, requirement, order,
and direction of Board, to delay compliance therewith pending the prosecution
of such proceedings, provided no civil damages or criminal penalty would be
incurred by Board and no lien or, charge would be imposed upon or satisfied out
of the Premises by reason of such delay, and the Lessee shall indemnify and
hold Board harmless from any such damages, penalty, lien, or charge.
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(c) Lessee agrees that it shall not enter into any contracts of a
type which would permit a lien or liens to become attached to the remainder
interests of Board and the Cities of Dallas and Fort Worth. Lessee further
agrees to pay, as they become due and payable, and before they become
delinquent, all ad valorem taxes, both general and special assessments, and
governmental charges lawfully levied or assessed against the leasehold
interest, or any part thereof, and upon all the improvements; provided, Lessee
shall have the right, upon posting security as required by law, to contest the
amount or legality of any tax or assessment levied or assessed against it by
any taxing authority.
(d) The Lessee covenants and agrees to observe and obey the
reasonable Rules and Regulations of Board for the government of the conduct and
operations of Lessee as may from time to time during the letting be
promulgated by Board to promote (i) air traffic safety and security and (ii)
compatible operations with other activities of the Airport.
Section 8. Prohibited Acts
(a) Lessee shall neither install in any public area any vending
machine or device designed to dispense or sell food, beverages, tobacco,
tobacco products or merchandise of any kind, nor operate any restaurant,
cafeteria, kitchen stand, or other establishment for the purpose of dispensing
or selling such products to any member of the public other than Lessee's
students, employees, officers and invitees, without the approval in advance of
the Executive Director.
(b) Lessee shall commit no nuisance on the premises and shall not
do or permit to be done anything which may result in the creation or commission
or maintenance of a nuisance on the premises.
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(c) Lessee shall not fuel or defuel its automobile vehicles or
other equipment in the enclosed space on the premises without the prior
approval of the Executive Director.
(d) Lessee shall not start or operate any engine or any item or
automotive equipment in any enclosed space on the Premises unless such engine
is equipped with a proper spark-arresting device.
Section 9. Maintenance and Repairs
Lessee shall at all times keep in a clean and orderly condition and
appearance the Premises and improvements, equipment and personal property
thereon.
Except as otherwise provided in Section 3, Section 11, and Section 25,
Lessee shall maintain, repair, replace and paint all or any part of the
improvements on the Premises including therein, without limitations thereto,
walls, partitions, floors, ceilings, columns, windows, doors, glass of every
kind, fixtures, systems for the furnishing of a fire alarm, fire protection
sprinkler, sewerage, drainage and telephone service, including lines, pipes,
mains, wires, conduits, and other equipment connected with or appurtenant to
all such systems which may be damaged or destroyed by the acts or omissions of
the Lessee, its sublessees, employees, agents, representatives, contractors,
customers, guests or invitees. Lessee is responsible for, and shall peform at
its own cost, all such repairs and replacements. Where any such repairs or
replacements cannot be amortized over the remaining Term or Extended Term of
this Agreement, Lessee shall have the right to seek an extension of this
Agreement.
In the event Lessee fails to commence so to make or do repairs,
replacements or painting within a period of thirty (30) days after written
notice from Board so to do or falls to diligently continue to complete the
repair, replacement or painting of the premises and improvements
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thereon required to be repaired, replaced or painted by Lessee, Board may, at
its option, repair, replace or paint all or any part thereof included in the
said notice, the cost thereof to be paid by the Lessee on demand.
Board assumes no responsibility for any property placed in the
premises or any part thereof, and Board is hereby expressly released and
discharged from any and all liability for any loss, injury or damage to persons
or property that may be sustained by reason of the occupancy of said Premises
under this Agreement, unless caused by the negligence or willful act of Board.
Section 10. Insurance
Lessee shall, during the term of this Agreement, cover and keep
insured, to the extent of not less than eighty percent (80%) of the insurable
value thereof, all buildings, structures, fixtures and equipment on the
Premises against fire and other hazards of extended coverage policies and all
risks against loss by windstorm, cyclone, tornado, hail, explosion (including
boiler explosion, if applicable), riot, civil commotion, aircraft, vehicles and
smoke. Such policy shall be in amounts and in carriers as shall be satisfactory
to Board's Executive Director.
The aforesaid policy of fire and extended coverage insurance and
renewal thereof shall Insure Board, the Cities of Dallas and Fort Worth, Lessee
and any Mortgagee as their interests may appear. If requested by a Mortgagee,
such policy of Insurance shall provide (a) that a duplicate original policy be
delivered to and retained by such Mortgagee, (b) that the payment of proceeds
from losses insured under such policy be made to an insurance trustee for
disbursement in accordance with the provisions of this Agreement, and (c) that
no adjustment of losses or settlement of claims under such policy shall be made
without the consent of such Mortgagee.
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In the event the improvements erected or constructed by Lessee are
damaged or destroyed by fire or other casualty to the extent that the
reasonable cost to repair or restore is sixty percent (60%) or more of the
original total cost thereof, Lessee shall have the right, at its election, to
repair and replace such improvements to substantially the same condition they
were in prior to such damage or destruction, or to terminate this Lease. As
used herein, the term "original total cost" shall not include the cost of the
construction of the foundation, footings, site preparations (unless such
portions of.the improvements were actually damaged), and other costs which
would not be incurred in reconstructing the damaged improvements. Lessee shall
give Board notice of its election hereunder within sixty (60) days next
following after the adjustment by the insurer of such loss by damage or
destruction. If Lessee elects to repair or reconstruct the improvements, the
insurance proceeds, to the extent a Mortgagee does not require the application
of such proceeds to Lessee's obligation to such Mortgagee, shall be made
available to Lessee for that purpose; if the insurance proceeds made available
to Lessee are not sufficient, Lessee agrees to bear and pay the deficiency. If
the insurance proceeds are more than sufficient to pay the cost of such repair
and reconstruction, then such excess proceeds shall be paid to any such
Mortgagee to be applied against the loan. If Lessee shall elect not to repair
or reconstruct the improvements, this Agreement and all of Lessee's and Board's
unaccrued obligations hereunder shall terminate, including Board's obligation
to reimburse Lessee for other parties' utilization of the extended utility and
road systems. The insurance proceeds, after payment of the balance owing to the
Mortgagee, shall be divided between Board and Lessee according to the following
formula: first, such proceeds shall be paid to Lessee for payment of any
deficiency between the proceeds and the amount needed to pay the cost of repair
and reconstruction and, second, Board shall
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receive an amount equal to two percent (2%) of such remaining proceeds times
the number of years elapsed in the Term of this Agreement, and the Lessee shall
receive the balance.
If the reasonable cost to repair or restore the damage or destruction
to the improvements should be less than sixty percent (60%) of the original
total cost of the Improvements. and provided this Agreement has a remaining
term of not less than forty-eight (48) months, Lessee shall be obligated to
repair and replace such damage at its sole cost and expense and shall have the
right to apply the insurance proceeds to the cost thereof. If less than
forty-eight (48) months remains on the Term of this Agreement at the time of
any such damage or destruction. Lessee may elect to repair or replace at its
cost and apply the insurance proceeds to such cost, or Lessee may elect to not
repair and terminate this Agreement. Such election shall be made in writing to
Board not more than sixty (60) days after the date of the fire or other
casualty. If Lessee elects to terminate this Agreement. Board and Lessee shall
be relieved and released of all unaccrued liability under this Agreement and
the insurance proceeds shall be paid first to the Mortgagee, if any, to the
extent of the balance owing to such Mortgagee, and the balance of such proceeds
shall be paid to the parties as follows: Board shall receive an amount equal to
two percent (2%) of such proceeds times the number of years elapsed in the Term
of this Agreement, and the Lessee shall receive the balance.
In the event of damage or destruction to any of the improvements upon
the premises, Board shall have no obligation to repair or rebuild the
improvements or any fixtures, equipment or other personal property installed by
Lessee pursuant to this Agreement, provided that such damage or destruction was
not caused by the negligence or willful act of Board.
Section 11. Indemnity; Liability Insurance
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Lessee covenants and agrees to indemnify and hold harmless Board, the
Cities of Dallas and Fort Worth, their directors, officers, agents and
employees from and against any and all claims for damages or injuries,
including death, to persons or property (other than the premises) arising out
of or incident to the leasing of, or the use and occupancy of, the Premises by
Lessee unless caused by the negligence or willful act of Board.
Lessee further covenants and agrees to obtain and keep in force during
the term of this Agreement a policy of liability insurance providing for bodily
injury (including death) and property damage to third persons in amounts not
less than $250,000.00 for any one person and $500,000.00 for any one accident
for bodily injury and death and $500,000.00 for property damage. Such coverage
shall be in an insurance carrier licensed to do business in Texas and
satisfactory to Board, and Board shall receive a copy of such policy of
insurance or a certificate, validly executed by or on behalf of the insurance
company, certifying that such insurance is in full force and effect.
Section 12. Signs
(a) Except with the prior approval of the Director, Lessee shall
not erect, maintain or display any advertising, signs, posters or similar
devices at or on the Premises or elsewhere at the Airport.
(b) Upon demand by Board, Lessee shall remove, obliterate or paint
out any and all advertising, signs, posters and similar devices placed by
Lessee on the Premises or elsewhere on the Airport without the prior approval
of the Director. In the event of a failure on the part of Lessee so to remove,
obliterate, or paint out each and every sign or piece of advertising, Board may
perform the necessary work and Lessee shall pay the costs thereof to Board on
demand.
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Section 13. Assignment and Subletting
Any Mortgagee (or its nominee) may sell, convey, transfer, assign, or
sublet, in whole or in part, this Agreement and all of Lessee's right, title
and interest hereunder, without the approval of Board, and such right shall not
be affected by any foreclosure by, or conveyance in lieu of foreclosure
received by, any Mortgagee (or its nominee). Lessee shall not assign, sell,
convey or transfer (except to Mortgagees or their nominees), or sublet (except
to subtenants in the ordinary course of Lessee's business) this Agreement, in
whole or in part, or the right, title and interest of Lessee hereunder, without
the written approval of Board, provided, however, that the approval of Board
shall not be required for any such assignment, sale, conveyance, transfer or
subletting to an individual, corporation or other entity having (or, in the
case of a partnership, one or more of whose partners have) a net worth in an
amount at least equal to ten (10) times the annual rent payable hereunder at
the time of such assignment, sale, conveyance, transfer or subletting.
Where an assignment, sale, conveyance, transfer or subletting
described in the preceding sentence occurs, Lessee shall give Board thirty (30)
days advance written notice of such transaction. No assignment, sale,
conveyance, transfer, pledge or subletting shall in anywise affect the terms,
conditions, covenants, agreements and provisions herein set forth. In the event
of a total assignment of this Agreement to an assignee approved by Board,
Lessee shall be released from any and all liability arising or accruing under
this Agreement after the date of such assignment, provided that the assignee
executes, acknowledges and delivers to Lessee and Board a valid, binding and
sufficient instrument in writing, directly enforceable by Board; containing the
assignee's assumption and agreement to pay all rent and other amounts reserved
in this
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Agreement and to perform all of the covenants, provisions and conditions of
the Agreement to be performed by Lessee.
In no event shall Board's consent be required for subleases entered
into in the ordinary course of Lessee's business. Board agrees upon request of
Lessee from time to time to execute and deliver to any permitted subtenant an
agreement in form and substance reasonably acceptable to Lessee providing that
Board will not disturb the possession of such subtenant under the terms of its
sublease in the event of any termination (or exercise of any remedies) in
connection with any default by Lessee hereunder, so long as such subtenant is
not in default under its sublease and provided the subtenant agrees to attorn
to Board under the terms of the sublease upon any termination of this Lease;
provided, however, no subtenant shall be entitled to possession of the Premises
after the expiration date of this Lease, or, if the Lease is extended, the
expiration date of any extended term hereof and provided further, that the
terms and provisions of such sublease shall be satisfactory to Board.
Section 14. Additional Construction by the Lessee
Except as hereinbefore provided in Section 3 hereof or as permitted by
Sections 10, 11, and 25, Lessee shall not, without the prior written approval
of the Director, erect any structures, make any improvements or do any other
construction work on the premises or alter, modify, or make additions,
improvements or repairs to or replacements of, any structure now existing or
built at any time during the letting, or install any fixtures (other than trade
fixtures, removable without material damage to the freehold, any such damage to
be immediately repaired by Lessee). Notwithstanding the foregoing, Lessee
shall have the right without the prior approval of the Director to replace or
repair floor and wall coverings and to make nonstructural repairs
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and additions to the Premises the cost of which does not exceed Five Thousand
Dollars ($5,000.00) per project.
Section 15. Rights of Entry Reserved
(a) Board, its officers and employees shall have the right during
normal business hours, after notice to Lessee and when accompanied by a
representative of Lessee, to enter upon the Premises for the purpose of
inspecting same, and for the doing of any act or thing which Board may be
obligated to do or have the right to do under this Agreement.
(b) Without limiting the generality of the foregoing, Board shall
have the right, for its own benefit, for the benefit of Lessee, or for the
benefit of others than Lessee at the Airport, to maintain existing and future
utilities systems, other systems, or portions thereof on the Premises,
including, without limitation, systems for the supply of heat, water, gas fuel
and electricity and for the furnishing of fire alarm, fire protection,
sprinkler, sewerage, drainage, telephone and telegraph service, including all
lines, pipes, mains, wires, conduits, and equipment connected with or
appurtenant to such to make such repairs, replacements or alterations as may,
in the opinion of Board, be deemed necessary or advisable; provided, however,
that such systems and ingress and egress thereto shall not unreasonably
interfere with Lessee's facilities nor with clearances therefor. Board shall
indemnify and hold Lessee harmless from and against any cost, expense,
liability, or action caused by or arising out of the actions taken by Board
pursuant to this Section 16(b).
Xxxxxxx 00. Xxxxx of Payments
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All payments required of the Lessee by this Agreement shall be made at
the office of the Director of Finance, Dallas/Fort Worth Regional Airport
Board, P. O. Drawer DFW, Dallas/Fort Xxxxx Xxxxxxx, Xxxxx 00000, or to such
other office or address as may be substituted therefor.
Section 17. Default; Termination
(a) Board, subject to the provisions of subparagraphs (b), (c),
and (d) hereafter, may declare this Agreement to be in default upon the
occurrence of any one or more of the following events:
(1) When any Lien shall be filed against the Premises
(except for a lien for a mortgage, or other instrument used to secure
financing, or a lien for taxes, assessments or other governmental charges so
long as such taxes, assessments or charges are not delinquent or are being
contested in accordance with the provisions of Section 8(c) hereof and not
released or otherwise removed or bonded within sixty (60) days after written
notice to the Lessee of the filing thereof; or
(2) When Lessee shall fail to pay the rental or to make
any other payment required hereunder to Board within thirty (30) days after the
due date; or
(3) When Lessee shall fail to keep, perform and observe
each and every covenant and agreement set forth in this Agreement on its part
to be kept, performed or observed within thirty (30) days after written notice
to the Lessee of such failure.
(b) In the event Board has declared this Agreement to be in default
pursuant to the provisions of subparagraph (a) above, Board may enforce the
performance of this Agreement in any method provided by law, and this Agreement
may be terminated at Board's discretion if such default continues for a period
of sixty (60) days after Board notifies Lessee and any Mortgagee
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in writing of such default and of Board's intention to declare this Agreement
terminated; and thereupon (unless Lessee or any Mortgagee shall have completely
removed or cured said default or unless,the provisions of subparagraphs (c) and
(d) below are applicable), this Agreement shall cease and come to an end as if
it were the day originally fixed herein for the expiration of the term hereof;
and Board, its agents and attorneys shall have the right, without further
notice or demand, to re-enter and remove all persons and property therefrom
without being deemed guilty of any manner of trespass, and without prejudice to
any remedies for arrears of rent or breach of covenant.
(c) Irrespective of the provisions of subparagraph (b) above, if
any default set forth in Board's notice is other than an uncured failure to pay
rent and the payment of rent is continued and the Lessee or any Mortgagee or
permitted assignee is diligently attempting to cure the default complained of
(even though the Lessee or such Mortgagee or permitted assignee is unable to do
so within sixty (60) days after such notice), this Agreement shall not
terminate so long as the Lessee or any Mortgagee or permitted assignee
continues diligently to attempt to cure the default.
(d) If the leasehold estate is encumbered by a mortgage. deed of
trust, or other instrument used to secure financing, and there is an uncured
default, Board may not terminate this Agreement by reason of such default, if a
Mortgagee, within sixty (60) days after receipt of such notice of default, as
provided herein, shall commence to cure such default or shall commence
foreclosure or similar proceedings under the mortgage or deed of trust, for the
purpose of acquiring Lessee's interest in this Agreement and thereafter
diligently prosecutes the same and upon the completion of such foreclosure
proceedings, the Mortgagee shall diligently
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attempt to cure such default. Any default by Lessee, not reasonably susceptible
of being cured by the Mortgagee, shall be deemed to have been waived by Board
upon completion of such foreclosure proceedings or upon such acquisition of
Lessee's interest in this Agreement, except that any of such events of default
which are reasonably susceptible of being cured after such completion and
acquisition shall then be cured with reasonable diligence.
(e) A Mortgagee or its nominee may become the legal owner and
holder of the leasehold estate under this Agreement by foreclosure or similar
proceedings under its mortgage or deed of trust or as a result of the
assignment of this Agreement in lieu of foreclosure.
(f) It is understood and agreed that in the event there is a
default hereunder and Board has sent the sixty (60) day notice as provided in
subparagraph (d) above, then and in such event Board shall have the right and
option, but not the obligation, to pay in full the indebtedness, including any
penalties arising from such prepayment, owing to the Mortgagee by Lessee and
secured by a mortgage or deed of trust upon the leasehold estate; and upon such
payment Board shall be subrogated to all of the rights, liens, interests and
remedies of the Mortgagee. Board shall exercise its option, if at all, by
written notice to Lessee and the Mortgagee, and by payment of such indebtedness
at any time prior to the completion of such foreclosure or similar proceedings.
Section 18. Obstruction Lights
Lessee shall furnish such obstruction lights as Board shall direct, of
the type and design approved by the Director, and shall install said lights in
the locations of the Premise, designated by Board and furnish and install the
bulbs and furnish the electricity necessary for the operation of said lights,
and shall operate the same in accordance with the directions of Board. Board
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hereby directs that all obstruction lights shall, until further notice, be
operated daily for a period commencing thirty (30) minutes before sunset and
ending thirty (30) minutes after sunrise (as sunset and sunrise may vary from
day to day throughout the year) and for such other periods as may be directed
or requested by the Control Tower of the Airport.
Section 19. Services to Lessee
(a) Board, at its sole cost and expense, covenants and agrees
promptly at all times during the term of this Agreement to maintain, replace
and repair the existing access road referred to in Section 7(a) of this
Agreement and any and all improvements constructed by it pursuant to the terms
of this Agreement, including, but not limited to, the streets, all utilities
(water, electricity, telephone, and sanitary sewers), all outside of and to the
exterior boundary of the premises and to furnish police and fire protection to
the premises.
(b) Except as may otherwise be expressly provided herein, Board
shall have no obligation to furnish or supply for or on behalf of Lessee, any
services whatsoever on the Premises. Lessee shall have the obligation to
arrange with the appropriate utility or service companies, municipalities, or
other supplier, including Board, supplying utilities and services in the area
for the supply of all other services including electric power. Lessee shall
have the responsibility to arrange for the maintenance and good repair of all
such service lines on the Premises furnished to it by such utility companies
and for all water mains and sewers constructed and installed within Lessee's
Premises by Lessee.
(c) Except as provided in this Agreement, no failure, delay or
interruption in any service or services, whether such service or services shall
be supplied by Board or by others, shall relieve Lessee of any of its
obligations hereunder, or shall be construed to be an eviction of
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Lessee, or of the rental payable under this Agreement, or grounds for any
claims by Lessee for damages, consequential or otherwise, unless caused by the
negligence or willful act of Board.
Section 20. Brokerage
Board and Lessee shall indemnify and save harmless each other of and
from any claim or commission or brokerage made by any broker when such claim is
based in whole or in part upon any act or omission of Lessee of Board.
Section 21. Termination of Agreement by Lessee
Lessee, with the written consent of all Mortgagees, if any, may
terminate this Agreement upon the default by Board in the performance of any
covenant or agreement herein required to be performed by Board, if such default
is not cured within sixty (60) days following written notice thereof from
Lessee to Board; provided, however, if such condition of default is not
reasonably susceptible to cure within such sixty (60) day period, Lessee may
not terminate this Agreement by reason of such condition of default, if Board
commenced its effort to cure such condition of default within such sixty (60)
day period, so long as Board proceeds with reasonable diligence to the cure of
such condition of default; provided, further, as to.any such condition of
default which continues beyond sixty (60) days, after such sixty (60) day
period, Lessee shall be entitled to a reasonable abatement of rent commensurate
with the extent to which such condition of default substantially interferes
with Lessee's use of the premises.
Section 22. Non-Discrimination
Without limiting the generality of any of the provisions of this
Agreement, Lessee, in its operations at the Airport, and also as a part of the
consideration hereof, shall maintain and operate its facilities and provide its
services in compliance with and pursuant to Title 49, Part 21
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(Non-Discrimination in federally-assisted programs of the Department of
Transportation - Effectuation of Title VI) of the Civil Rights Act of 1964, and
as said Regulations may be amended; and shall not on the grounds of race.
creed, color or national origin discriminate against any person or group of
persons in any manner whatsoever. Lessee shall indemnify and hold harmless
Board and the Cities of Dallas and Fort Worth from any claims and demands of
third persons, including the United States of America, resulting from Lessee's
non-compliance with any of the provisions of this Section; and Lessee shall
reimburse Board for any loss or expense incurred by reason of such
non-compliance.
Section 23. Removal of Property
Upon termination of this Agreement by lapse of time or otherwise,
Lessee shall have the right but not the obligation to remove from said Premises
its trade fixtures, including display signs, counters, furniture, equipment,
and other items of personal property installed and place in and upon the
premises, and in any event shall clean up the debris and leave said premises in
a safe, sanitary and sightly condition.
Section 24. Condemnation
(a) In the event that title to or use of the premises, or a
substantial part thereof, shall be taken or condemned in any eminent domain,
condemnation, compulsory acquisition or like proceeding or by any competent
authority or conveyed under the threat thereof, for any public or quasi-public
use or purpose (hereinafter called "by the power of eminent domain") the
following provisions shall be applicable:
(1) If at any time of the taking Lessee requests,
with the consent of all Mortgagees, that the improvements be rebuilt elsewhere
and if land suitable for such purpose is
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available elsewhere, such improvements shall be rebuilt elsewhere and paid for
with the proceeds of condemnation allocable to Board's reversionary interest in
the improvements taken, and the proceeds of condemnation allocable to the fair
market value of Lessee's lost leasehold estate for the then remaining Term of
the Agreement and any extension thereof to which Lessee may be entitled
hereunder ("Lessee's Proceeds"), and if such proceeds are insufficient for such
purposes Lessee shall pay the deficiency. If Lessee's Proceeds are in excess
of the amount necessary for such purpose, any such excess, after first repaying
the indebtedness owing to any Mortgage in order of priority, shall be paid to
Lessee if the condemning authority is Board or either the City of Dallas or
Fort Worth. If, however, the condemning authority is other than Board or the
Cities of Dallas or Fort Worth, such excess, after first repaying the
indebtedness owing to any Mortgagees in order of priority, shall be paid to
Board and deposited by it as a credit to the next due payment(s) of rentals,
with such credit to continue until the amount thereof is exhausted. The
rebuilding of such improvements shall be in accordance with the original plans
and specifications, together with alterations or modifications made or agreed
upon prior to the taking, or in accordance with the original plans and
specifications, together with alterations or modifications made or agreed upon
prior to the taking, or in accordance with new or modified plans and
specifications, the alternative to be determined by the Lessee.
(2) If (A) Lessee elects not to have the improvements
rebuilt elsewhere (in which event Lessee will advise Board of such decision
within one hundred twenty (120) days after the date of the taking), or (B) all
Mortgagees do not consent to the rebuilding of improvements, or (C) Lessee's
Proceeds are insufficient for such purpose and Lessee fails to agree to bear
and pay the deficiency, or (D) land suitable for such purpose is not available
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elsewhere, this Agreement and all unaccrued obligations hereunder shall
thereupon be terminated and all condemnation proceeds, after first repaying the
indebtedness owing to all Mortgagees, shall be divided between Board and Lessee
as their respective interests appear at the time of the taking, with Lessee
being entitled to the present fair market value of its lost leasehold estate
(less the amount of proceeds paid to Mortgagees, if any) together with any
allowance receivable for relocation or removal. Notwithstanding any other
provision hereof or any right of Lessee or Mortgagee herein contained, as
between Board, Lessee and any Mortgagee, Board shall be entitled to be paid out
of the proceeds of condemnation not less than the present fair market value of
its lost reversionary interest in the Premises taking into consideration any
right of Lessee to extend the term of this Agreement, but exclusive of the
value of improvements constructed by Lessee thereon.
(3) For purpose of this Section 25(a), "land suitable
for such purpose available elsewhere" shall mean other land on Airport property
managed by Board. If the improvements are rebuilt elsewhere, this Agreement
shall continue in force and effect, unchanged, as to the rebuilt improvements
and substitute land. Rental shall xxxxx from the time of the taking until
rebuilding is completed.
(b) In the event that title to or use of less than a substantial
part of the Premises is taken by the power of eminent domain (that is, if the
primary use of the improvements is not substantially impaired by deletion of
the part taken) Lessee shall restore, repair or refurbish the remainder of the
improvements to the Premises following the taking to the extent Board may
reasonably require. Such restoration, repair or refurbishment shall be at
Lessee's sole cost and expense; provided, however, with the consent of all
Mortgagees, the cost of such restoration,
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repair or refurbishment may be paid for with Lessee's Proceeds (as defined in
Section 25(a)(l). Any of Lessee's Proceeds not used for the purposes of
rebuilding shall first be used to repay the indebtedness owing to any
Mortgagees in order of priority and then shall be applied until exhausted in
reduction of the rentals payable hereunder. The rentals payable hereunder shall
be reduced for the remainder of the term hereof because of the taking in a
manner that is fair and equitable under the circumstances.
(c) Before any reconstruction or repair under this Section, Lessee
shall submit a Construction Application and plans and specifications to the
Director for approval and construction shall be substantially in accordance
therewith subject to such changes as may be reasonably requested by Lessee and
approved by the Director; the Director reserves the right specifically to
approve the contractor and/or the architect/engineer selected by Lessee for
such reconstruction or repair work.
Section 25. Recording - Memorandum of Lease
Board and Lessee agree, upon the request of either of them, to execute
a short form of memorandum of this Agreement in recordable form for recordation
in the deed records of the County where the Premises are situated. The cost of
recording shall be borne by the party requesting it.
Section 26. Estoppel Certificates
Board agrees to execute and deliver, from time to time, such estoppel
certificates or other instruments to the Mortgagee, assignees and sublessees of
Lessee which certificates, to the extent the facts recited therein are true,
shall certify to such Mortgagee, assignees and sublessees that this Agreement
is in full force and effect, that there are no defaults existing, the date
through
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which the rental has been paid and such other matters as may be reasonably
requested by such assignees, sublessees and the Mortgagee, it being intended
that any such statement delivered pursuant to this Section may be relied upon
by any prospective purchaser, assignee, sublessee or mortgagee of the leasehold
estate.
Section 27. Leasehold Title Certification
Board agrees to furnish to Lessee, if requested, at Board's expense an
Abstractor's Certification covering the Premises.
Section 28. Quiet Enjoyment
Board agrees that, on payment of rentals, fees and charges herein
provided for and the performance hereunder, Lessee shall peaceably have and
enjoy the Premises, appurtenances, facilities, licenses and privileges granted
herein,
Section 29. Force Majeure
Neither Board nor Lessee nor any assignee or sublessee shall be deemed
in violation of this Agreement if it is prevented from performing any of its
obligations hereunder by reasons of strikes, boycotts, labor disputes,
embargoes, shortages of material, acts of God, acts of the public enemy, acts
of superior governmental authority, weather conditions, floods, riots,
rebellions, acts of sabotage, or any other circumstances for which it is not
responsible or which area not in its control; provided, however, that this
section shall not apply to failures by Lessee to pay the rentals, fees and
charges hereinbefore specified or to the obligations of Board under Section 29
hereof. All assertions of force majeure interference by a party places the
burden of proof of same as a reason for failure to perform upon the party
claiming same.
Section 30. Severability
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Should any provision of this Agreement be finally declared to be
invalid by a court of competent jurisdiction, provided such provision is not
material to the performance of the contract, it is the intention of the parties
that the remaining portions of this Agreement shall remain in full force and
effect.
Section 31. Non-Liability
No member, director, officer, or employee of either party shall be
charged personally or held contractually liable by or to the other part under
any term or provision of this Agreement, or of any supplement, modification or
amendment of this Agreement, or because of any breach thereof, or because of
its or their execution or attempted execution of same.
Section 32. Notices to Leasehold Mortgagees
Upon execution and recordation in the Deed of Trust Records of Dallas
County, Texas of any leasehold mortgage, the leasehold Mortgagee shall notify
Board in writing that a leasehold Mortgage has been given and executed by
Lessee, and shall furnish to Board at the same time the address to which it
desires copies of notices to be mailed, or, designate some person or
corporation in the City of Dallas, Texas, as its agent and representative for
the purpose of receiving copies of notices. Board hereby agrees that it will
thereafter mail to each leasehold Mortgagee from whom it has received such
notice, or to the agent or representative so designated by each such leasehold
Mortgagee, at the address so given, duplicate copies of any and all notices in
writing which Board may from time to time give or serve upon Lessee under and
pursuant to the terms and provisions of this Agreement. No notice to Lessee
under the terms and provisions of this Agreement shall be effective unless a
duplicate copy thereof is mailed in
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the manner provided for the giving of notices in Section 38 hereof to each
leasehold Mortgagee of whom Board has been notified as aforesaid.
Section 33. Leasehold Mortgagees May perform Covenants
To the extent that Lessee may grant the right to any such leasehold
Mortgagee or same may be provided for herein, any such leasehold Mortgagee may,
at its option, at any time before the rights of Lessee hereunder shall have
been terminated, pay any rental due hereunder, effect any insurance, pay any
taxes, discharge any lien, make any repairs and improvements, make any
deposits, or make any other payment required of Lessee by the terms of this
Agreement, or do any act or thing which may be necessary and proper to be done
in the observance of the covenants and conditions of this Agreement, or to
prevent the termination of this Agreement; and all payments so made and all
things so done and performed by any such leasehold Mortgagee shall be as
effective to prevent a forfeiture of the rights of Lessee hereunder as the
same would have been if done and performed by Lessee instead of by any such
leasehold Mortgagee. Any leasehold mortgage so given by Lessee may, if Lessee
desires, be so conditioned as to provide that, as between any leasehold
Mortgagee and Lessee, the leasehold Mortgagee shall, on making good any such
default or defaults on the part of Lessee, be thereby subrogated to or put in
the position of assignee of any or all of the rights of Lessee under the terms
and provisions of this Agreement.
Section 34. Leasehold Mortgagees Not Liable
No leasehold Mortgagee of Lessee hereunder shall be or become liable
to Board, as an assignee of this Agreement or otherwise, for the payment or
performance of any obligation of Lessee until it expressly assumes the payment
or performance of such obligation, by written
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instrument; and no assumption of liability shall be inferred or result from
foreclosure or other appropriate proceedings in the nature thereof or as the
result of any other action or remedy provided for by any leasehold estate to
such leasehold Mortgagee in lieu of foreclosure, or pursuant to which any
purchaser at foreclosure shall acquire the rights and interest of Lessee under
the terms of this Agreement.
Section 35. Parties' Authority
Each party represents and warrants that it has the full right, power
and authority to make this Agreement and that no other persons need to join in
the execution of this instrument in order for this Agreement to be binding on
all parties having an interest in the subject matters; and each party agrees to
execute or procure any further necessary assurances of title that may be
reasonably required for the protection of the other party. Further, Board
warrants that it has good and merchantable title to the Premises.
Section 36. Approval of Parties
In any case in this Agreement where approval or consent or
satisfaction is required to be obtained by one party from the other, it is
understood and agreed that any such approval or consent or satisfaction shall
not be unreasonably withheld, conditioned, or delayed. Failure of Board either
to give written notice of approval or disapproval (specifying the basis for any
such disapproval with particularity) within thirty (30) days following
submittal by Lessee of any request for approval (accompanied by appropriate
plans, specifications or other materials) shall conclusively be deemed approval
thereof. The party alleging that such approval, consent, or satisfaction is
withheld without good reason shall have the burden of proof that allegation in
any adversary proceeding, provided the reasons for the failure by the other
party are stated in writing.
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Section 37. Notices
(a) Any notice, request or demand to be given or served under the
terms and provisions of this Agreement must be in writing, and shall be deemed
to have been given and received 48 hours after a certified or registered letter
containing such notice, request or demand, with postage prepaid, return receipt
requested, is deposited in a United States Postal Service depository, addressed
as follows:
If to the Airport Board: Dallas/Fort Worth Regional Airport Board
East Airfield Drive
P. O, Drawer DFW
Dallas/Fort Xxxxx Xxxxxxx, Xxxxx 00000
Attention: Executive Director
If to Lessee: Sedalia-Xxxxxxxx-Boonville Stage Line, Inc.
0000 Xxxx Xxxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxx 00000
with copy to each leasehold Mortgagee of which Board has notice; provided,
however that any party may at any time change the place of receiving notices,
requests or demands by ten (10) days' written notice of such change of address
to the other.
(b) If and when included in the terms "Board" or "Lessee" as used
in this Agreement there shall at any time be more than one person, firm or
corporation, they shall arrange among themselves for the joint execution of
such notice, specifying one of their number for the receipt of notices,
requests, demands and payments, and any notices, requests, demands and payments
made by either Board or Lessee in accordance with each such notice from the
other (such arrangements for notices, requests, demands and payments being
subject to change by the delivery of a different notice) shall constitute
notice, request, demand or payment to all persons, firms and corporations
included within the terms "Board" or "Lessee," as the case may be.
32
39
Section 38. Mineral Rights
It is agreed and understood that all water, gravel, rock, earth, gas,
oil and all other minerals or materials and the rights thereto, in and under
the soil (with the exception of gravel, rock, earth, and other materials
removed in the course of construction of Lessee's improvements on the
premises), are expressly reserved to Board, but Board hereby waives and
covenants not to grant, sell, or convey any right to enter upon the surface of
the premises to conduct any drilling or exploration activities during the term
of this Agreement for the purpose of producing any such water, gravel, rock,
earth, gas, oil or all other minerals or materials.
Section 39. Successors and Assigns
This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the parties hereto.
Section 40. Entire Agreement
This Agreement constitutes the entire agreement of the parties on the
subject matter hereof and may not be changed, modified, discharged, voluntarily
surrendered or terminated or extended except by a written instrument duly
executed by Board, Lessee and any Mortgagee. The parties agree that no
representations or warranties shall be binding upon either party unless
expressed in writing in this Agreement or by Supplements thereto.
Section 41. Venue
Venue on any suit brought hereunder shall lie exclusively in Dallas or
Tarrant County, Texas.
Section 42. Right of First Refusal
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40
Board agrees to use its best efforts to cause a right of first refusal
to be granted to Lessee in the event the Premises are sold, provided, that
Board shall have no such obligation up a sale of the entire Airport.
IN WITNESS WHEREOF, the parties hereto have executed this instrument
at East Airfield Drive, Dallas/Fort Xxxxx Xxxxxxx, Xxxxx 00000, as of the day
and year first above written.
DALLAS/FORT WORTH REGIONAL AIRPORT BOARD
By: ___________________________________
Executive Director
ATTEST:
_________________________________
Staff Secretary to the Board
APPROVED:
__________________________________
Legal Counsel to the Board
SEDALIA-XXXXXXXX-B00NVILLE STAGE LINE, INC.
By: ___________________________________
Its: ___________________________________
ATTEST:
By: ______________________________
34
41
EXHIBIT B
LEGAL DESCRIPTION
BEING a 4.557 acre tract of land situated in the Xxxxxx Xxxx Survey, Abstract
No. 698, Tarrant County, Texas, and within the boundary of the Dallas/Forth
Worth Airport, and being all of that called 4.460 acre tract described in XXX
Xxxxxxx Xxxxx Xx. 00000 and the westerly most 20 feet of that called 4.89 acre
tract described in DFW Lease No. 25210, and being more particularly described
as follows:
COMMENCING at the airport reference point, which is located at Texas Xxxxxxx
coordinates of north 447,856.04 and east 2,140,991.46 and is the basis for a
plane grid established for the Dallas/Fort Worth Airport;
THENCE West a distance of 7,586.46 feet to a point for corner;
THENCE North a distance of 3,808.78 feet to a point in the east right-of-way
line of a 50 foot access easement (unrecorded) and the north right-of-way of'
West 20th Street (Hangar Road) (70 foot right-of-way); for the POINT OF
BEGINNING of the herein described tract of land, said point also being the
southeast corner of said 4.460 acre tract;
THENCE West along the north right-of-way line of Hangar Road, a distance of
322.29 feet to a point for corner;
THENCE North a distance of 457.68 feet to a point in a concrete apron;
THENCE East, at 272.29 feet pass the west line of aforementioned 50 foot access
easement, and continue in all a total distance of 312.29 feet to a point for
corner;
THENCE North 45 degrees 00 minutes 00 seconds East, at 14.14 feet past the east
line of said 50 foot access easement, and continue in all a total distance of
197.99 feet to a point for corner;
THENCE South a distance of 110.00 feet to a point for corner;
THENCE East a distance of 155.87 feet to a point for corner;
THENCE South 45 degrees 00 minutes 00 seconds West, a distance of 376.00 feet
to a point for corner located 20 feet east of the east right-of-way line of
aforementioned 50 foot access easement;
THENCE South along a line 20 feet east of and parallel to the east right-of-way
line of said 50 foot access easement, a distance of 221 .81 feet to a point of
the said north line of Hanger Road;
THENCE West along said north line, a distance of 20.00 feet to the POINT OF
BEGINNING AND CONTAINING 198,503 square feet or 4.557 acres of land, more or
less.
This description was prepared solely from existing lease documents, with
closure verified by coordinate geometry. No field work was performed to locate
this property on the ground.
Basis of bearing is the referenced DFW Airport Lease No. 23555.
42
EXHIBIT 10.19
EXHIBIT C
SUBLEASE AGREEMENT
Dated: Xxxxx 0, 0000
Xx and Between
XXXXXX X. XXXXXXX
("Landlord")
and
M. XXX XXXXXXXXXXX
("Tenant")
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TABLE OF CONTENTS
Page
----
ARTICLE I - PREMISES
Section 1.01 - Premises 1
Section 1.02 - Landlord Repairs 1
Section 1.03 - Landlord's Representations and Warranties 1-2
ARTICLE II - TERM
Section 2.01 - Term 2
ARTICLE III - RENT
Section 3.01 - Base Monthly Rent 2-3
Section 3.02 - Ground Rent 3
Section 3.03 - Security Deposit 3-4
ARTICLE IV - USE OF PREMISES
Section 4.01 - Permitted Use 4
Section 4.02 - Prohibited Uses 4-5
Section 4.03 - Non-Discrimination 5
ARTICLE V - TENANT'S COMPLIANCE WITH GROUND LEASE,
RULES AND REGULATIONS
Section 5.01 - Ground Lease 6
Section 5.02 - Compliance with Laws, Rules and Regulations 6
Section 5.03 - Hazardous Substances 6-7
ARTICLE VI - IMPROVEMENTS AND ALTERATIONS
Section 6.01 - Improvements and Alterations 7-8
Section 6.02 - Liens 8-9
ARTICLE VII - INDEMNITY
Section 7.01 - Indemnity 9-10
ARTICLE VIII - INSURANCE
Section 8.01 - Insurance 10
Section 8.02 - Waiver of Right of Recovery 10-11
Section 8.03 - Certificates of Insurance 11
ARTICLE IX - COMMON AREAS
Section 9.01 - License 11
ARTICLE X - ASSIGNMENT OR SUBLEASE
Section 10.01 - Assignment or Sublease by Tenant 11-12
Section 10.02 - Request for Assignment of Sublease by Tenant 12
Section 10.03 - Assignment by Landlord 12
44
ARTICLE XI - TAXES AND UTILITIES
Section 11.01 - Taxes 13
Section 11.02 - Utilities 13
ARTICLE XII - REPAIR AND MAINTENANCE
Section 12.01 - Repair and Maintenance by Tenant 13-14
Section 12.02 - Repair and Maintenance by Landlord 14
Section 12.03 - Condition of Premises at Surrender 14
Section 12.04 - Acceptance of Premises 14-15
Section 12.05 - Entry for Repairs and Inspection 15
ARTICLE XIII - DEFAULT AND REENTRY. 15-17
ARTICLE XIV - CONDEMNATION
Section 14.01 - Total Taking 18
Section 14.02 - Partial Taking 18
Section 14.03 - Temporary 18-19
Section 14.04 - Awards 19
ARTICLE XV - CASUALTY 19
ARTICLE XVI - INABILITY TO PERFORM. 20
ARTICLE XVII -SUBORDINATION AND ESTOPPEL
Section 17,01 - Subordination 20
Section 17.02 - Attornment 20-21
Section 17.03 - Estoppel 21
Section 17.04 - Notice to Mortgagee 21
ARTICLE XVIII - SIGNS 21-22
ARTICLE XIX - QUIET ENJOYMENT . 22
ARTICLE XX - SURRENDER OF PREMISES
Section 20.01 - Surrender of Premises 22
Section 20.02 - Environmental Inspection 22
ARTICLE XXI - HOLDING OVER. 23
ARTICLE XXII - NET LEASE 23
ARTICLE XXIII - NOTICES 23-24
ARTICLE XXIV - MISCELLANEOUS
Section 24.01 - Easements 24
Section 24.02 - Access 24-25
45
Section 24.03 - Late Charges 25
Section 24.04 - Waiver 25
Section 24.05 - Captions 25
Section 24.06 - Severability 25
Section 24.07 - Entire Agreement 25-26
Section 24.08 - Limitation of Liability of Landlord 26
Section 24.09 - Construction 26
Section 24.10 - Authority. 26
Section 24.11 - Joint and Several Liability 26
Section 24.12 - Costs and Attorney's 26
Section 24.13 - Sublease Subject to Consent of Ground Lessor 26-27
Section 24.14 - Successors and Assigns 27
Section 24.15 - Financial Information 27
Section 24.16 - Submission of Sublease 27
Section 24.17 - Exhibits 27
Section 24.18 - Purchase Option 27-28
ARTICLE XXV - RECORD OF MEMORANDUM
Section 25.01 - Memorandum of Lease 28
SIGNATURE PAGE 29
46
SUBLEASE AGREEMENT
This SUBLEASE AGREEMENT ("Sublease") is made and entered into as of
this 1st day of March, 1993, by and between Xxxxxx X. Grammar ("Landlord") and
M. Xxx Xxxxxxxxxxx ("Tenant").
W I T N E S S E T H:
For and in consideration of the covenants and agreements hereinafter
set forth to be performed by Landlord and Tenant, Landlord hereby subleases to
Tenant and Tenant hereby subleases from Landlord the Premises hereinafter
described, for the term, at the rental, and subject to all of the terms,
covenants and conditions hereinafter set forth.
ARTICLE I
PREMISES
Section 1.01 Premises. Landlord hereby subleases to Tenant and
Tenant hereby subleases from Landlord that certain parcel of land and all of
its improvements and appurtenances (all hereinafter, the "Premises"), including
without limitation, an aircraft hangar and offices; containing approximately
40,000 square feet of floor space including office space, all of which is
located on that certain parcel of land containing approximately 4.460 acres,
located at 0000 X. 00xx Xxxxxx, Xxxxxx/Xxxx Xxxxx Xxxxxxx, Xxxxx 00000, the
legal description of which is set forth in Exhibit "A" attached hereto and
incorporated herein for all purposes. Nothing contained in this Sublease shall
grant Tenant any rights in the air space above the Premises.
Section 1.02 Landlord Repairs. On or before December 31, 1993,
Landlord shall repair or remove the four underground storage tanks to the
extent, if any, required to bring such tanks into compliance with applicable
environmental requirements. Subject only to these repairs, the Premises is
subleased "AS IS."
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Section 1.03 Landlord's Representations and Warranties. Landlord
represents and warrants to Tenant that:
(A) Landlord knows of no condition of the Premises that might
violate Environmental Laws, except those identified in Section 1.02;
(B) Exhibit B is a true copy of the Ground Lease of the land that
is a part of the premises, between Dallas/Fort Worth Regional Airport Board
(the "Ground Lessor") and Sedalia-Xxxxxxxx-Boonville Stage Line, Inc., dated
February 1, 1983 (the "Ground Lease"), with all of its currently-effective
amendments; and as so amended the Ground Lease is in full force and effect,
without default or notice of default, and without any condition known to
Landlord that would result in default with the passage of time;
(C) Landlord holds all rights and interests as Lessee of the
Premises under the Ground Lease; and has full right and authority to execute
and perform under this Sublease, subject only to the approvals required by the
Dallas/Fort Worth Airport Board under this Sublease; and all prior rights in
the Premises have been fully, lawfully and finally extinguished;
(D) There are no liens or encumbrances upon Landlord's interests
in the Premises; and
(E) No adverse person or entity possesses any interest in any
portion of the Premises.
ARTICLE II
TERM
Section 2.01 Term. Subject to and upon the terms and conditions
set forth herein, or in any exhibit or addendum hereto, the term of this
Sublease shall have a 5-year term commencing as of March 1, 1993 (the
"Effective Date") and ending February 28 1998 (the "Expiration Date"), unless
sooner terminated pursuant to the terms and provisions of this Sublease (the
"Sublease Term").
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48
ARTICLE III
RENT
Section 3.01 Base Monthly Rent. Tenant covenants and agrees to pay
to Landlord a net lease rental as follows:
Beginning the Effective Date of this Sublease and continuing on the
same day of each month thereafter during the term and any extension or renewals
of this Sublease, Tenant shall pay Landlord a monthly "Base Rent" of $21,000
per month in advance.
Tenant shall also pay with the Base Rent, as additional rent, all
other sums of money that shall become due from and payable by Tenant to
Landlord under this Sublease. Landlord shall also have the same remedies for
default for the payment of additional rent as are available to Landlord in the
case of default in the payment Base Rent. The Base Rent, together with any
adjustments of rent provided for herein then in effect, shall be due and
payable on the first day of each calendar month during the Sublease Term and
any extensions or renewals thereof. Tenant hereby agrees to so pay such rent to
Landlord at Landlord's address herein provided (or such other address as
Landlord may designate to Tenant in writing from time to time) monthly in
advance, without demand, counterclaim or offset except as provided herein. If
the Sublease Term, as heretofore established, commences on other than the first
day of a month or terminates on other than the last day of the month, then the
installment of Base Rent for such month or months shall be prorated based on
the number of days in such month which are a part of the Sublease Term and the
installment(s) so prorated shall be paid in advance on either the Commencement
Date or the first day of the last month of the Sublease Term, as the case may
be.
Section 3.02 Ground Rent. The Base Rent which Tenant is obligated
to pay hereunder includes Tenant's proportionate share of the ground rental
which Landlord is obligated to pay as of
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49
the Effective Date of this Sublease under the Ground Lease. The Tenant's share
of the ground rental rate under the Ground Lease which is in effect as of the
Effective Date of this Sublease is $5,500.67 per month. The initial Base Rent
has been calculated based upon the ground rental rate in effect as of the
Effective Date of this Sublease. However, said Ground Lease provides for
potential periodic increases of ground rental payable by Landlord to the Ground
Lessor, and for potential charges for the cost of construction, relocation or
extension of any utilities or improvements in the future. In the event of any
such increase in the ground rental, or the imposition of any additional charges
by Ground Lessor under the Ground Lease, Tenant agrees to pay to Landlord in
monthly installments, as additional rent, such increase in said ground rental,
as well as any other charges payable under the Ground Lease by Landlord to
Ground Lessor in addition to those currently being charged.
Section 3.03 Security Deposit. Concurrent with Tenant's execution
of this Sublease, Tenant shall deposit with Landlord the sum of $21,000 cash
(the "Security Deposit"). Said sum shall be held by Landlord as a security
deposit for the faithful performance by Tenant of all terms, covenants and
conditions of this Sublease to be kept and performed by Tenant during the term
hereof. If Tenant defaults with respect to any provision of this Sublease,
including but not limited to, the provisions relating to the payment of rent
and any of the monetary sums due therewith, Landlord may (but shall not be
required to) use, apply or retain all or any part of the Security Deposit for
the payment of any sum which Landlord may spend or become obligated to spend by
reason of Tenant's default or to compensate Landlord for any other loss or
damage which Landlord may suffer by reason of Tenant's default. If any portion
of said Security Deposit is so applied, Tenant shall, within ten (10) days
after written demand therefor, deposit cash with Landlord in an amount
sufficient to restore the Security Deposit to its original amount; Tenant's
failure to do so within said ten (10) day period shall be a material breach of
this Sublease. Landlord shall not be required to keep the Security Deposit
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50
separate from its general funds, and Tenant shall not be entitled to interest
on said Security Deposit. If Tenant shall fully and faithfully perform each and
all of its obligations under this Sublease, the Security Deposit or any balance
thereof shall be returned to Tenant (or, at Landlord's option, to the last
assignee of Tenant's interest hereunder) within thirty (30) days after the
expiration of the Sublease Term (or any renewal term) and after Tenant has
vacated the Premises. Tenant shall not offset its last month's rent against the
Security Deposit.
ARTICLE IV
USE OF PREMISES
Section 4.01 Permitted Use. The Premises shall be used and
occupied by Tenant only for the following specific purposes and for no other
purposes whatsoever without obtaining the prior written consent of Landlord
which may be withheld in Landlord's sole discretion: office and aircraft
maintenance, together with aircraft handling, fueling, de-icing, lubrication
and parking associated therewith, and other lawful uses incidental and
necessary to such specific uses. Tenant warrants and represents to Landlord
that the Premises shall be used and occupied only for the purpose set forth in
this Section 4.01.
Section 4.02 Prohibited Uses.
(A) Tenant shall not use the Premises or permit anything to be
done in or about the Premises which will in any way conflict with or cause a
breach under the Ground Lease or conflict with or violate any law, statute,
zoning restriction, deed restriction, ordinance, or any environmental,
hazardous waste or governmental rules or regulations or requirements now in
force or which may hereafter be enacted or promulgated. Tenant shall at its
sole cost and expense promptly comply with all said laws, rules and regulations
to the extent that they relate to Tenant's use of the premises.
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51
Tenant shall not use the Premises for any purpose which is illegal, or which in
Landlord's reasonable opinion, creates a factual or legal nuisance, or which
violates the Ground Lease.
(B) Tenant shall not do or permit anything to be done in or about
the Premises which will increase the existing rate of insurance upon the
Premises (but Tenant shall pay such increased premiums as additional Rent, and
the payment thereof shall not give Tenant the right to continue such activity
nor waive the restrictions of this Section 4.02) or cause the cancellation or
reduction of coverage of any insurance policy covering said Premises or any
building of which the Premises may be a part, nor shall Tenant sell or permit
to be kept, used or sold in or about said premises, any articles which may be
prohibited by a standard form policy of fire insurance.
(C) Tenant shall not do or permit anything to be done in or about
the Premises which will in any way obstruct or interfere with the rights of
other tenants, users or occupants of other property located on D/FW
International Airport property, including, without limitation, the open taxiway
on the North side of the Premises. Tenant shall not commit, or suffer to be
committed, any waste in or upon the Premises.
(D) Tenant shall not install in the Premises or in any public area
any vending machine or device designed to dispense or sell food, beverages,
tobacco, tobacco products or merchandise of any kind to the general public, nor
operate any restaurant, cafeteria, kitchen, stand or other establishment for
the purpose of dispensing or selling such products to any member of the general
public, other than to Tenant's employees, officers and business invitees,
without the prior express written approval of Landlord and Ground Lessor.
(E) Tenant shall not violate any provision of the Airport Building
Code or the Airport Fire Code, or any other Code or Regulation promulgated by
D/FW International Airport Board.
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52
(F) Tenant shall not permit the accumulation of paper, cans,
bottles, wrappers, rags, trash, junk or debris on the Premises. Tenant agrees
to promptly comply with any notices concerning any such accumulation, given to
Tenant by either Landlord or Ground Lessor. Failure by Tenant to comply with
any such clean-up notice within 10 business days after receipt of such notice
shall constitute a material default by Tenant under this Sublease entitling
Landlord to exercise any remedy set forth in Article XIII hereof.
Section 4.03 Non-Discrimination. Tenant, in its operations at the
Airport, and as part of the consideration hereof, shall maintain and operate
its facilities and provide its services in compliance with and pursuant to
Title 49, Part 21 (Non-Discrimination in Federally-Assisted Programs of the
Department of Transportation-Effectuation of Title VI) of the Code of Federal
Regulations, as said Regulations may be amended and all other applicable
non-discrimination laws. Further, Tenant shall not unlawfully discriminate in
its operations at the Premises against any person or group of persons on the
grounds stated therein. Tenant shall indemnify and hold harmless Landlord and
Ground Lessor from any claims and demands of third persons and the United
States of America resulting from Tenant's non-compliance with the provisions of
this Section 4.03, and Tenant shall reimburse Ground Lessor and Landlord for
any loss or expense incurred by reason of such non-compliance.
ARTICLE V
TENANT'S COMPLIANCE WITH GROUND LEASE
RULES AND REGULATIONS
Section 5.01 Ground Lease. Tenant agrees to not cause any breach
of Landlord's covenants under the Ground Lease, and to be bound by all the
terms and provisions of the Ground Lease. Tenant shall indemnify Landlord
against: all actions, expenses, claims and demands made,
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53
suffered or sustained by the Landlord as a result of breach by the Tenant of
the covenants as aforesaid. Landlord shall not consent to any amendment to the
Ground Lease without Tenant' s prior consent, which shall not be withheld
unreasonably.
Section 5.02 Compliance with Laws, Rules and Regulations. Tenant
agrees to comply and cause its employees, agents, invitees and licensees to
comply, with reasonable promptness after being advised thereof, with all
applicable rules, regulations, orders and directives, pertaining to the
Airport, now in existence or hereafter promulgated by any governmental
authority or agency having jurisdiction thereover in the interest of health,
safety, sanitation and good order at the Airport, and to cause its various
tenants, invitees and licensees to comply with all present and future federal,
state and municipal laws, statutes, ordinances and regulations hereafter
enacted or promulgated, which may apply to the Airport or to the use of the
Premises and the Airport by Tenant. Tenant agrees to promptly make all
nonstructural improvements, repairs and alterations to any and all facilities
located in the Premises when required by law, ordinance, rule, order or
regulation, except to the extent that they relate to matters required by
environmental laws as to conditions preceding this Sublease. Further, Tenant
shall also comply and cause its employees, agents, invitees and licensees to
comply with all valid and applicable rules, orders and regulations of (i) the
police, health and fire departments, and (ii) the National Board of Fire
Underwriters or similar organizations for the prevention of fire or for the
correction of unhealthy or hazardous conditions.
Section 5.03 Hazardous Substances. As used below, "Hazardous
Substances" shall mean threshold quantities of any substances, or materials
which are categorized or defined as hazardous or toxic under any present or
future local, state or federal law, rule or regulation pertaining to
environmental regulation, contamination, cleanup or disclosure, including,
without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as now or
8
54
hereafter amended ("CERCLA"), the Resources Conservation and Recovery Act
(including, without limitation, the Hazardous and Solid Waste Amendments), as
now or hereafter amended ("RCRA"), Superfund Amendments and Re-authorization
Act of 1986, as now or hereafter amended ("TSCA"), or state super lien or
environmental cleanup or disclosure statutes (including, without limitation,
the Texas Substances Control Act, the Texas Solid Waste Disposal Act, the Texas
Hazardous Substance Spill Prevention and Control Act, and the Texas Underground
Storage Tanks Act) (all such laws, rules and regulations, whether listed above
or not, being referred to collectively as "Environmental Laws"). Tenant
warrants, represents and covenants as follows:
(A) Neither the Tenant, the Premises, nor the Building shall
become subject to any private or governmental lien or judicial or
administrative notice, order or action relating to Hazardous Substances or
subject to any public or governmental lien or judicial or administrative
notice, order or action relating to any environmental problems, impairments or
liabilities with respect to the Building or the Premises, as a result of
Tenant's violation of any environmental laws.
(B) Tenant shall immediately notify Landlord should Tenant become
aware of (i) any Hazardous Substance in the Premises or the Building or on the
property on which the Building is situated, (ii) any lien, action or notice of
the nature described in subparagraph (A) above, or (iii) any litigation or
threat of litigation relating to any alleged unauthorized release of any
Hazardous Substance or the existence of any Hazardous Substance therein or
thereon.
(C) Tenant hereby covenants and agrees not to do or take any
action or omit or fail to take any such action which will violate any
Environmental Laws.
ARTICLE VI
IMPROVEMENTS AND ALTERATIONS
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Section 6.01 Improvements and Alterations. After occupance by
Tenant pursuant to the terms of this Sublease, Tenant shall make no
alterations, additions, or improvements in or to the Premises without the prior
written consent of Landlord, which shall not be withheld unreasonably. Landlord
may require Tenant to provide a Completion Bond and a Bond against liens in
connection with the construction of any such improvements. Tenant shall be
solely responsible for any alterations required to bring the Leased Premises
into compliance with, or maintain such compliance with any applicable State or
Federal law or regulation, including, without limitation, the Americans With
Disabilities Act, except to the extent that they relate to matters required by
environmental laws as to conditions preceding this Sublease. Any permitted
alterations, additions or improvements prior to Tenant's occupancy or after
occupancy shall be at Tenant's sole expense. Tenant shall secure any and all
governmental permits required in connection with any such work, and shall hold
Landlord harmless from any and all liability (including reasonable attorney' s
fees) resulting therefrom. All alterations, additions and improvements (except
trade fixtures, appliances and equipment which shall not be deemed a part of
the Premises), shall immediately become the property of Landlord without any
obligation to pay Tenant therefor and shall not be removed by Tenant except as
hereinafter provided. Upon the expiration or sooner termination of the term
hereof, Tenant shall, upon written demand by Landlord which shall be given at
least ten (10) days prior to the end of the term, at Tenant's sole cost and
expense forthwith and with all due diligence remove any alterations, additions
or improvements made by Tenant which are designated by Landlord for removal,
repair any damage to the Premises caused by such removal and, if requested by
Landlord, restore the altered Premises to its original condition.
Section 6.02 Liens. Tenant agrees that it shall not create or permit
to be created any lien against the Premises or any part thereof. Further,
Tenant agrees that it shall not enter into any
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56
contracts of a type which would attempt to permit a lien or liens to become
attached to the remainder interests of Ground Lessor in the Premises . At
Landlord' s request, Tenant shall furnish written proof of payment of any items
which would or might constitute the basis for such a lien on the Premises if
not paid, and if an item is being contested by Tenant, evidence satisfactory to
the Landlord that Tenant is contesting the validity thereof in good faith and
has the financial ability to discharge the debt if the matter is decided
adversely to Tenant. Nothing herein or elsewhere in this Sublease shall imply,
and it is not intended, that the Ground Lessor's fee title, Landlord's
leasehold title, or other interest in the Premises may in any manner whatsoever
be subordinated to any lien or other encumbrance. In the event that any such
lien is filed against the Premises or the Building, or any portion thereof, or
any interest therein, Tenant shall cause the same to be canceled or discharged
of record by payment, bonding or otherwise within twenty (20) days of the
filing thereof. In the event that any such lien, claim or claims exceed,
individually or in the aggregate, the sum of $10,000, bonding by Tenant with
respect to such excess amount shall not be sufficient to comply with Tenant's
obligations hereunder; and Tenant shall cause any such lien to be canceled or
discharged of record by payment within twenty (20) days after the filing
thereof, or at such earlier time as shall be necessary to prevent foreclosure
thereof. In the event that any such lien is attached to the Premises, the
Building or any portion thereof or interest therein, and Tenant shall fail to
obtain the cancellation, discharge or bonding of the same within the time
period provided hereinabove, then, in addition to any other right or remedy of
Landlord, Landlord may, but shall not be obligated to, discharge the same, and
any amount paid by Landlord for any of the aforesaid purposes shall be paid by
Tenant to Landlord on demand as additional rent. Tenant shall indemnify and
hold Landlord harmless from all costs, damage, claims and expense (including
reasonable attorneys' fees) occasioned by the filing of any such lien.
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ARTICLE VII
INDEMNITY
Section 7.01 Indemnity. Tenant agrees that Landlord shall not be
liable for injury to any person, or for the loss of, or for the damage to, any
property (including, without limitation, property of Tenant and claims for
consequential or special damages) occurring in or about the Premises,
including, without limitation, the ordinary negligence of Landlord or his
agents, employees or representatives. Subject to Section 8.01, Tenant hereby
indemnifies and holds harmless Landlord from and against same and agrees to
defend Landlord against: any and all claims, charges, liabilities, obligations,
penalties, damages, costs and expenses (including reasonable attorneys' fees)
arising, claimed, charged, or incurred against or by Landlord from any matter
or thing arising from Tenant's use of the Premises, the conduct of its business
or from any activity, work or other things done, permitted, or suffered by the
Tenant in or about the Premises, including without limitation, ordinary
negligence of Landlord and his agents and representatives. Tenant shall
further indemnify and hold harmless Landlord from and against any and all
claims arising from any breach or default in the performance of any obligation
on Tenant's part, or arising from any act or negligence of Tenant, or any
officer, agent, employee, guest, or invitee of Tenant, and from all costs,
reasonable attorney's fees, and liabilities incurred in or about the defense of
any such claim or any action or proceeding brought thereon. In case any action
or proceeding be brought against Landlord by reason of any such claim Tenant
shall defend the same at Tenant's sole expense. Subject to Section 8.01, the
indemnification provided in this section shall survive any termination or
expiration of this Sublease. Without limiting the generality of the above,
Landlord and its agents shall not be liable for any loss or damage to persons
or property resulting from fire, explosion, falling plaster, steam, gas,
electricity, water or rain which may leak from any part of the Premises, or
from pipes, appliances
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or plumbing works therein or from the roof, parking area, street or subsurface
or from any other place resulting from dampness or any other cause whatsoever,
unless caused by or due to the gross negligence or willful act or omission of
Landlord, its agents, servants or employees. Landlord and its agents shall not
be liable for consequential damages or special damages of any nature, whether
foreseeable or not, nor for interference with the utilities, light or air on
the Premises. Tenant shall give prompt notice to Landlord in case of casualty
or accidents on the Premises.
ARTICLE VIII
INSURANCE
Section 8.01 Insurance. Tenant shall, at its own expense, maintain
at all times during the Sublease Term adequate comprehensive liability
insurance with an insurance company or companies acceptable to Ground Lessor
and Landlord with minimum Combined Single Limit Coverage of TWO MILLION AND
NO/100 DOLLARS ($2,000,000.00) (including, but not limited to, personal injury
broad form contractual liability, products liability, broad form property
damage and contractor's protective), to insure Landlord, Tenant and Ground
Lessor against any such claims, demands, losses, damages, liabilities and
expenses. So long as Tenant maintains such insurance, with Landlord as an
additional insured and otherwise as provided below, Landlord shall look first
to such insurance for Tenant's indemnity under Section 7.01. Tenant shall, at
its own expense, also maintain at all times during the Sublease Term (a)
Worker's Compensation insurance, and (b) comprehensive automobile liability
insurance covering all owned, non-owned and hired motor vehicles with a
Combined Single Limit of not less than TWO MILLION AND NO/100 DOLLARS
($2,000,000.00) . Landlord and Ground Lessor shall be named as additional
Insureds as their interests may appear and waiver of subrogation among named
insured in all of said policies referred to in this Section 8.01 (except for
any policy of insurance covering Worker's Compensation), when
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applicable, each such policy shall have deductibles of not more than $2,000 per
occurrence or such other amounts as may be acceptable to Landlord, and Landlord
and Ground Lessor shall each be furnished with a certificate of insurance which
shall bear an endorsement that same shall not be canceled, terminated or
materially changed without thirty (30) days prior written notice to Ground
Lessor and Landlord. If Tenant fails to maintain such insurance, Landlord may
(but is not obligated to) maintain the same on behalf of Tenant, and any
premiums paid by Landlord shall be deemed additional rent and shall be due on
the payment date of the next installment of rental hereunder. Tenant may
maintain Fire and Extended Coverage insurance in Tenant's discretion on
Tenant's property on the Leased Premises and on Tenant's interest in the
Leasehold estate, and Landlord shall have no obligation to Tenant regarding
such insurance.
Section 8.02 Waiver of Right of Recovery. Landlord and Tenant
hereby mutually release each other from liability and waive all right of
recovery against each other for any property loss in or about the Premises from
perils insured against under their respective prior insurance policies to the
extent covered by such prior insurance policies (but not the policies as
provided pursuant to paragraph 8.01 above) including any extended coverage
endorsements thereof, whether due to negligence or any other cause; provided
that this section shall be inapplicable if it would have the effect, but only
to the extent that it would have such effect, of invalidating any insurance
coverage of Landlord or Tenant.
Section 8.03 Certificates of Insurance. A certificate issued by
the insurance carrier for each policy of insurance required to be maintained by
Tenant under the provisions of this Sublease shall be delivered to Landlord on
or before the Effective Date of this Sublease and thereafter, at time of policy
renewals, within thirty (30) days prior to the expiration of the term of each
such policy. Each of said certificates of insurance and each such policy of
insurance required to be maintained
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by Tenant hereunder shall expressly evidence insurance coverage as required by
this Sublease. All such policies shall be written as primary policies not
contributing with and not in excess of coverage which Landlord may carry.
ARTICLE IX
COMMON AREAS
Section 9.01 License. Not applicable.
ARTICLE X
ASSIGNMENT OR SUBLEASE
Section 10.01 Assignment or Sublease by Tenant. Tenant shall have
the right, without notice to or consent of Landlord, to sublease or rent any
portion or all of the Premises to any one or more entities in which Kitty Hawk
Group, Inc., or Tenant hold a majority interest; the right with Landlord's
reasonable approval to assign, sublease or rent to any other person or entity,
A transfer of tenant's rights in the Sublease to his executor or heirs in the
event of Tenant's death is a permitted assignment. Tenant shall not otherwise
assign, sublease, mortgage, sell and lease back, hypothecate, or transfer all
or any part of this Sublease, or any interest therein . Tenant acknowledges
that , pursuant to the provisions of the Ground Lease, any assignment or
sublease is also subject to obtaining the prior written approval of the Ground
Lessor and also subject to certain other conditions set forth in the Ground
Lease. If Tenant assigns or transfers all or any part of its interest in this
Sublease or subleases the Premises, or any portion thereof, without first
obtaining Ground Lessor's prior written approval and Landlord's prior written
consent, such assignment, transfer or sublease shall be construed to be a
material default by Tenant hereunder; however, Landlord may collect rent from
such party in possession and apply the amount collected to the rent hereby
reserved, but no such collection and application shall be considered a waiver
of the requirements of this paragraph
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the acceptance of such party as tenant, nor the consent of Landlord to such
assignment, sublease or transaction. Any collection of rent directly by
Landlord from any such assignee or sublessee shall not be construed to
constitute a novation or a release of Tenant or any guarantor from the further
performance of their respective obligations under this Sublease. Tenant agrees
to reimburse Landlord for Landlord's reasonable attorney's fees incurred in
conjunction with the processing and documentation of any requested transfer or
sublease pursuant to this Section 10.01.
Section 10.02 Request for Assignment or Sublease by Tenant. If
Tenant desires to assign, sublease or rent any portion of the Premises in a
transaction that requires notice to or consent of Landlord under Section 10.01,
it shall notify Landlord at least thirty (30) days in advance of the date on
which Tenant desires to make such assignment or sublease. Tenant shall provide
Landlord a copy of the proposed assignment or sublease and such reasonable
information as Ground Lessor or Landlord might request concerning the proposed
assignee or sublessee to allow Ground Lessor and Landlord to make informed
judgments as to the financial condition, operations expertise and management
ability of the proposed assignee or sublease. In the event Landlord consents to
any assignment, transfer or sublease, Tenant shall remain fully liable for the
performance of all obligations under this Sublease unless expressly released
from such liabilities in writing by Landlord.
Section 10.03 Assignment by Landlord. Landlord shall have the
absolute right to assign or otherwise transfer its interest hereunder and/or in
the Premises or any portion thereof without the consent of Tenant, provided
that Landlord shall give Tenant notice of such transaction and provided further
that any such transaction shall not affect Tenant's right to possession and use
of the Premises or its rights under this Sublease so long as Tenant is not in
default under any of the terms and conditions of this Sublease. Tenant shall
attorn to any assignee of Landlord, but assignment by
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Landlord shall not in any way diminish Landlord's obligations under this
Sublease for any matter preceding the assignment. The covenants and obligations
contained in this Sublease on the part of Landlord shall, subject as aforesaid,
be binding on Landlord, its successors and assigns, only during and in respect
to their respective periods of ownership, except as may be expressly otherwise
stated in this Sublease. Any estate, right, title or interest of Landlord
assigned hereunder may be assigned in like manner by any assignee thereof.
ARTICLE XI
TAXES AND UTILITIES
Section 11.01 Taxes. Tenant shall pay or cause to be paid before
delinquency all income and personal property taxes, assessments, license fees
and public charges levied, assessed or imposed upon or measured by the value of
its business operation, including, but not limited to, the furniture, fixtures,
leasehold improvements, equipment and other property of Tenant at any time
situated on or installed in the Premises. If at any time during the term of
this Sublease any of the foregoing are assessed as part of the real property of
which the Premises are a part, Tenant shall pay to Landlord upon demand, as
rent in addition to the Base Rent, the amount of such additional taxes as may
be levied against said real property by reason thereof. For the purpose of
determining said amount, the determination by the Dallas County or Tarrant
County Tax Assessor, or other taxing authority, as applicable, as to amount so
assessed shall be conclusive. Landlord shall pay any real property taxes levied
against the Premises.
Section 11.02 Utilities. Tenant shall pay throughout the term of
this Sublease for all charges charged to the Premises for utilities including,
but not limited to, electricity, heat, oil, gas, water, sewage, garbage,
disposal, telephone and telegraph. Tenant shall also provide its own
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janitorial services, replacement of lightbulbs and tubes and all washroom and
toilet supplies, and parking area maintenance.
ARTICLE XII
REPAIR AND MAINTENANCE
Section 12.01 Repair and Maintenance by Tenant. Tenant shall at
all times throughout the term of this Sublease at its sole cost and expense
keep the Premises (including exterior doors and entrances, all windows and
molding and trim of all doors and windows) , and appurtenances thereof
(including, without limitation, all heating, air conditioning, plumbing and
electrical systems as well as the fire protection alarm and sprinkler systems
of the Premises) in good order, condition and repair, damage by unavoidable
casualty and Landlord's obligations under Section 12.02 excepted. Without
limiting the general requirements contained herein, Tenant shall keep the glass
of all windows and doors unbroken, in good repair, clean and presentable, at
reasonable intervals paint or refinish the interior of the Premises and keep
same free from uncleanliness or obstruction. Tenant shall give Landlord or its
agents prompt written notice of any accident to or defects in the plumbing
systems, electrical systems, and heating and air conditioning systems and fire
protection alarm and sprinkler systems. Any damage to same resulting from
misuse, acts or omissions of Tenant, its employees, agents, or invitees shall
be repaired at Tenant's sole cost.
Section 12.02 Repair and Maintenance by Landlord. Landlord shall
at all times throughout the term of this Sublease keep the roof (both interior
and exterior), exterior walls, foundations and building structure of the
Premises in as good a state of repair as at the commencement of this Sublease,
reasonable wear excepted, and shall promptly accomplish such repairs as may be
needed. Tenant shall immediately inform Landlord of any necessary repairs, but
make no such repairs without Landlord's prior written consent. Landlord shall
make such repairs to
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the roof, exterior walls, foundations and building structure of the Premises,
without liability to Tenant for any loss or damage which may result in Tenant's
stock or business by reason of such repairs and maintenance. Landlord shall
have the right, without liability, to enter the Premises for the purpose of
inspection or making those repairs required under this Section 12.02. Except
as otherwise specifically provided herein, there shall be no liability of
Landlord (including, without limitation, consequential or special damages or
ordinary negligence of Landlord, his agents, employees or representatives) by
reason of any injury to or interference with Tenant's business arising from the
making of, or failure to make, any repairs, alterations or improvements in or
to any portion of the Premises or in or to fixtures, appurtenances and
equipment therein.
Section 12.03 Condition of Premises at Surrender. At the
expiration or sooner termination of this Sublease, Tenant shall return the
Premises to Landlord in the same condition as the Premises existed at the
commencement of this Sublease (or, if altered by Landlord or Tenant with
Landlord's consent, then the Premises shall be returned in such altered
condition subject to Landlord's right to require removal of such alterations),
with reasonable wear and tear excepted. Tenant shall remove all trade fixtures,
appliances and equipment which do not become a part of the Premises together
with those alterations which Landlord designates to be removed, and subject
thereto, Tenant shall restore the Premises to the original condition existing
prior to the installation of said items. Tenant's obligation to perform this
covenant shall survive the expiration or termination of this Sublease.
Section 12.04 Acceptance of Premises. By entry thereon, but
subject to the completion of the items set forth in Section 1.02 of this
Sublease, Tenant shall be deemed to have accepted the Premises "AS IS" except
for latent defects known to Landlord but not disclosed, and except for
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the existing environmental issue described in Section 1.02 and as being in good
and sanitary order, condition and repair, and suitable for the uses permitted
by this Sublease.
Section 12.05 Entry for Repairs and Inspection. Tenant covenants
and agrees to permit Landlord or its agents or representatives to enter into
and upon any part of the Premises at all reasonable hours to inspect the same,
make repairs, alterations or additions thereto; and to show the Premises to
prospective purchasers, mortgagees and tenants (but only during the last six
(6) months of the Sublease Term or any renewal term with respect to prospective
tenants), and Tenant shall not be entitled to any abatement or reduction of
rent by reason thereof; provided however, that Landlord agrees not to
unreasonably interfere with Tenant's business operations in connection with any
such entry.
ARTICLE XIII
DEFAULT AND REENTRY
Time is of the essence of this Sublease. In the event any of the
following events occur:
(1) Tenant fails to timely pay Landlord any installment of rent
or other payments required under Article III hereof or any other payment
required under the provisions of this Sublease and such default shall not have
been remedied within 10 days after notice from Landlord to Tenant for such
default, provided that Landlord shall not be required to give more than two
such notices in any calendar year; or
(2) The Premises are deserted or vacated by Tenant for a period of
fifteen (15) consecutive days without prior written consent of Landlord; or
(3) A voluntary petition in bankruptcy is filed against Tenant
under any chapter of the Bankruptcy Code, 11 U.S.C. Paragraph 101 et seq., or
Tenant makes an assignment for the benefit of creditors, or becomes insolvent;
or
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(4) There shall be an involuntary bankruptcy or receivership
petition filed with respect to Tenant, or any attachment, execution or other
judicial seizure of, or affecting, the properties and assets of Tenant, or
affecting the Premises, or any part thereof, unless Tenant causes such petition
to be dismissed, or dissolves, bonds against, or otherwise eliminates such
attachment, execution or seizure within thirty (30) days of its occurrence; or
(5) There is a transfer, hypothecation, assignment, sublease or
conveyance of the Premises or any portion thereof or interest therein by Tenant
in violation of Section 10.01 of this Sublease or without Ground Lessor's prior
written approval; or
(6) Tenant shall default in the observance or performance
of any term, covenant (including, without limitation , the covenant to provide
an estoppel certificate as required by Section 17.03 of this Sublease),
condition or provision of this Sublease, or the Ground Lease, and such default
shall not have been remedied within ten (10) days after notice from Landlord to
Tenant such default, provided that the l0-day cure period shall be applicable
only to the first occurrence of each such event during the term of this
Sublease.
THEN, AND IN SUCH EVENT, in addition to any other remedies conferred
upon Landlord at law or in equity, Landlord shall have the absolute right, at
its election any time after such event, and to the extent permitted by
applicable laws, without further notice or demand, to exercise any one or more
of the following remedies:
(A) Landlord may terminate this Sublease and forthwith repossess
the Premises and be entitled to recover forthwith as damages, a sum of (i) all
rents and other indebtedness accrued to the date of such termination, (ii) the
reasonable cost of recovering the Premises, (iii) the cost of removing and
storing Tenant's and any other occupant's property located therein, (iv) the
cost of reletting the Premises (including, without limitation, reasonable
brokerage commissions and the
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amount of Rent lost from the time of recovery of the Premises to the beginning
date of any reletting thereof), (v) the cost of repairs, changes, alterations
and additions to the Premises whether accomplished in one or more steps or
phases, (vi) the reasonable cost of collecting such amounts from Tenant
hereunder and (vii) any other reasonable sums of money or damages that may be
owed to Landlord as a result of a default by Tenant or the exercise of
Landlord's rights at law or in equity. If upon such reentry there remains any
personal property of Tenant or any other person upon the Premises, the Landlord
may, but is without obligation to do so, remove such personal property and hold
it for the owner thereof or place the same in a public garage or warehouse in
Tenant's name, all at the expense and risk of the owner thereof, and Tenant
shall reimburse Landlord for any expenses incurred in connection with such
removal and storage. Landlord shall have the right to sell such stored property
provided it has given Tenant not less than thirty (30) days prior written
notice of such intended sale. The proceeds of such sale shall be applied first
to the cost of sale (including without limitation, attorneys' fees and court
costs, second to payment of storage charges, third to payment of any other
amounts then due from Tenant to Landlord, and the balance, if any, shall be
paid to Tenant.
(B) Landlord may terminate Tenant's right of possession (but not
this Sublease) and may repossess the Premises by forcible entry or detainer
suit or otherwise, without demand or notice of any kind to Tenant and without
terminating this Sublease, in which event Landlord may, but shall be under no
obligation to do so, relet the Premises or any portion thereof for the account
of Tenant for such rent and upon such terms as shall be satisfactory to
Landlord. If Landlord shall fail or refuse to relet the Premises, or if the
same are relet and a sufficient sum shall not be realized from such reletting
to satisfy the rent provided for in this Sublease to be paid, then Tenant shall
pay to Landlord as damages a sum equal to the amount of the rental reserved in
this Sublease for such
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period or periods, or if the Premises have been relet, the Tenant shall satisfy
and pay any such deficiency upon written demand therefor from time to time.
Landlord shall also be entitled to recover forthwith as damages, a sum of (i)
all rents and other indebtedness accrued to the date of such termination, (ii)
the reasonable cost of recovering the Premises, (iii) the cost of removing and
storing Tenant's and any other occupant's property located therein, (iv) the
cost of reletting the Premises (including, without limitation, reasonable
brokerage commissions), (v) the cost of repairs, changes, alterations, and
additions to the Premises whether accomplished in one or more steps or phases,
(vi) the reasonable cost of collecting such amounts from Tenant hereunder and
(vii) any other sums of money or damages that may be owed to Landlord as a
result of a default by Tenant or the exercise of Landlord's rights at law or
in equity, including without limitation, attorneys' fees and court costs.
Tenant agrees that Landlord may file suit to recover any sums falling due under
the terms of this subparagraph (B) from time to time, and that no delivery or
recovery of any portion due Landlord hereunder shall be any defense to any
subsequent action brought for any amount not theretofore reduced to judgment in
election on the part of Landlord to terminate this Sublease unless a written
notice of such intention be given to Tenant by Landlord. Notwithstanding any
such reletting without termination, Landlord may at any time thereafter elect
to terminate this Sublease for such previous breach.
ARTICLE XIV
CONDEMNATION
Section 14.01 Total Taking. If the entire Premises are taken
under the power of eminent domain or conveyed under the threat of the exercise
of said power or otherwise pursuant to the Ground Lease (all of which is
hereafter referred to as "condemnation"), this Sublease shall terminate
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as of the date the condemning authority is entitled to possession. All Base
Rent, additional rent and other charges payable by Tenant hereunder shall be
apportioned and paid to the date of such taking.
Section 14.02 Partial Taking. If a portion of the Premises should
be taken by a governmental authority, corporation or other entity under the
right of eminent domain, condemnation, pursuant to the Ground Lease or similar
right, this Sublease shall nevertheless continue in effect as to the remainder
of the Premises unless, in Ground Lessor's judgment, so much of the Premises
shall have been taken so as to make it economically unsound to use the
remainder of the Premises for the uses and purposes contemplated by this
Sublease. If the Ground Lessor determines that so much of the Premises has been
taken as to make it economically unsound to use the remainder of the Premises
for the uses and purposes contemplated by this Sublease, this Sublease shall
terminate as of the date of the taking of possession by the condemning
authority, and all Base Rent, additional rent and other charges payable by
Tenant hereunder shall be apportioned and paid to the date of such taking. In
the event of a partial taking where this Sublease is not terminated, then to
the extent of the condemnation proceeds received by Landlord, Landlord shall
proceed promptly to restore the remaining portion of the Premises to a safe
integral unit resembling, so far as practicable, the Premises prior to such
taking, and the Base Rent, additional rent and other charges payable by Tenant
hereunder during the remainder of the Sublease Term after taking of possession
by the condemning authority shall be reduced on a just and proportionate basis
having due regard for the relative value and square footage of the portion of
the Premises thus taken as compared to the remainder thereof and taking into
consideration the extent, if any, to which Tenant's use of the remainder of the
Premises shall have been impaired or interfered with by reason of such partial
taking.
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Section 14.03 Temporary Taking. If the whole or any portion of
the Premises shall be taken for temporary use or occupancy, the Sublease Term
shall not be reduced or affected and the Base Rent, additional rent and other
charges payable by Tenant hereunder shall be abated in proportion to the
portion of the Premises taken. Except to the extent Tenant is prevented from so
doing pursuant to the terms of the order of the condemning authority, Tenant
shall continue to perform and observe all of the other covenants, agreements,
terms and provisions of this Sublease.
Section 14.04 Awards. All awards for the taking of any part of
the Premises or any payment made under threat of exercise of power of eminent
domain, condemnation or pursuant to the Ground Lease shall be the sole property
of Landlord, whether made as compensation for diminution in value of the
leasehold or severance damages or any other costs. Neither Landlord nor Ground
Lessor shall have any liability whatsoever to Tenant for said condemnation and
Tenant waives all rights to claim damages or awards for loss of its leasehold
interest or to seek recovery of any condemnation award or settlement.
ARTICLE XV
CASUALTY
In the event the Premises are damaged or destroyed to such an extent
as to render the same untenantable in whole or in substantial part, the Base
Rent, additional rent and other charges payable by Tenant hereunder shall xxxxx
during the time Tenant is unable to use the Premises, Landlord shall, within
thirty (30) days of receipt of notice from Tenant of said damage or
destruction, advise Tenant in writing of Landlord's determination of whether to
repair or rebuild same, which shall be at the sole election of Landlord. In the
event that Landlord has determined to repair the damage but the Premises are
incapable of being repaired within one hundred thirty-five (135) days from date
of Landlord's notice to Tenant, this Sublease may be terminated by Tenant by
written notice given by
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the terminating party to the other party. If Landlord elects not to repair or
rebuild, or if repair and rebuilding will require more than 135 days from
Landlord's notice, Tenant may by notice to Landlord within 30 days after
Landlord's notice elect to purchase the Premises under the option in section
24.18, in which case the Premises shall include all proceeds of casualty
insurance received or receivable by Landlord with respect to the damage or
destruction. On such termination date, Tenant shall immediately surrender the
Premises and all interest therein to Landlord, and Tenant shall pay Base Rent,
additional rent and other charges payable by Tenant hereunder only to the date
of termination or the date the Premises are surrendered, whichever occurs
later. Landlord shall at all times maintain adequate fire and casualty
insurance upon the Premises up to $1,700,000. Tenant may maintain such fire
and casualty insurance on its leasehold interest as it chooses pursuant to
paragraph 8.01.
ARTICLE XVI
INABILITY TO PERFORM
This Sublease and the obligation of Tenant to pay Base Rent,
additional rent and the other charges payable by Tenant hereunder and to
perform all of the other covenants and agreements set forth herein shall in no
event be affected, impaired or excused because either the Ground Lessor or the
Landlord is unable to supply, or is delayed in supplying, any service to be
supplied by Ground Lessor under the Ground Lease or Landlord under this
Sublease or is unable to make or is delayed in making, any repairs required of
such party, if either the Ground Lessor or Landlord is prevented or delayed
from so doing by reason of strikes or labor troubles or for any cause beyond
the control of Ground Lessor or Landlord, including, but not limited to,
governmental preemption in connection with a National Emergency, or by reason
of any rule, order or regulation of any department or
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subdivision of any other government agency or by reason of the conditions of
supply and demand which have been or are affected by war, natural disaster or
other emergency.
ARTICLE XVII
SUBORDINATION AND ESTOPPEL
Section 17.01 Subordination. This Sublease is subject and hereby
subordinated to all present and future mortgages, deeds of trust and other
encumbrances of the Landlord, his successors or assigns , affecting the
Premises or the property described in Exhibit "A" of which the Premises are a
part, provided that such subordination shall not affect the Tenant's right to
possession and use of the Premises so long as Tenant is not in default under
any of the terms and conditions of this Sublease. Tenant will, promptly upon
Landlord's request, execute such instruments as may be reasonably required from
time to time to subordinate the rights and interest of Tenant under this
Sublease to the lien of any mortgage or deed of trust which may at any time be
placed upon the land or Building of which the Premises are a part; provided,
however, such subordination shall not affect the Tenant's option to purchase
pursuant to 24.18 below nor the Tenant's right to possession, use and
occupancy of the Premises as long as Tenant is not in default under any of the
terms and conditions of this Sublease or the Ground Lease.
Section 17.02 Attornment. Tenant agrees that any such
subordination agreement will contain a provision satisfactory to Landlord's
lender whereby Tenant will agree, in the event of foreclosure of any such
mortgage or deed of trust, to attorn to and recognize as its Landlord under the
terms of this Sublease said lender, any purchaser of this Leasehold at a
foreclosure sale, or their successors or assigns.
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Section 17.03 Estoppel Certificate. Tenant agrees that it will
upon request execute and deliver to Landlord, Landlord's lender, or to the
Ground Lessor, an estoppel certificate in the form requested by Landlord or
such party.
Section 17.04 Notice to Mortgagee. Tenant agrees to give any
present or future mortgagee of the Premises or the property described in
Exhibit "A" of which the Premises are a part, a copy of any notice of default
served upon Landlord by Tenant. Tenant further agrees that if Landlord shall
have failed to cure such default within the time provided for in this Sublease,
then any such mortgagee shall have an additional fifteen (15) days within which
to cure such default or if such default cannot be cured within such time, then
such additional period of time as may be necessary to cure such default if
within such fifteen (15) days the mortgagee has commenced and is diligently
pursuing the remedies necessary to cure such default, in which event this
Sublease shall not be terminated while such remedies are being so diligently
pursued.
ARTICLE XVIII
SIGNS
Tenant shall have the right, as limited herein, to install and
maintain signs in and on the Premises identifying it and its operations;
provided, however, that all such signs shall conform to all applicable
governmental and Airport regulations and requirements as to design, placement,
erection, repair and maintenance and shall be subject to the prior written
approval of Landlord and the Director of Planning and Engineering (the
"Director") for Ground Lessor as to content, color, size, design and location.
Further, upon demand, written or oral, by Ground Lessor, Tenant shall remove,
obliterate or paint out any and all advertising, signs, poster and similar
devices that were placed by Tenant on the Premises or elsewhere on the Airport
without the prior written approval of the Director. In the event of a failure
on the part of the Tenant to so remove, obliterate or paint out
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each and every sign or piece of advertising within seven (7) days after receipt
of such demand, Tenant acknowledges that the Ground Lessor has the right under
the Ground Lease to perform the necessary work and demand that Landlord pay the
cost thereof to Ground Lessor on demand as additional rental under the Ground
Lease, all of which shall be immediately paid by Tenant to Landlord as
additional Rent, upon Tenant's receipt of Landlord's notice thereof. Tenant
agrees to indemnify and hold harmless Landlord from any and all costs and
expenses incurred by Landlord by reason of Tenant's failure to comply with the
provisions of this Article XVIII. If any such charge is not paid by Tenant to
Ground Lessor or Landlord within thirty (30) days after the date of completion
of Ground Lessor's work, Landlord shall have the right, but not the obligation,
to pay for such work and Tenant shall reimburse to Landlord such amounts as
have been advanced by Landlord to Ground Lessor within ten (10) days after
demand therefor.
ARTICLE XIX
QUIET ENJOYMENT
Landlord agrees that, upon payment of rental and performance of all
covenants and agreements on the part of Tenant to be performed hereunder,
Tenant shall peaceably have and enjoy the Premises and all rights and
privileges granted herein. Tenant agrees that temporary inconveniences,
including as illustration and not limitation, such occurrences as reasonable
noise, reasonable disturbance, reasonable traffic detours caused or associated
with Airport or Building operations as well as those caused by or associated
with the construction of Airport or Building improvements, shall not constitute
a breach of this paragraph.
ARTICLE XX
SURRENDER OF PREMISES
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Section 20.01 Surrender of Premises. At the expiration or sooner
termination of this Sublease, Tenant shall promptly surrender possession of the
Premises broom clean to Landlord and shall deliver to Landlord all keys that it
may have to any and all parts of the Premises and the Building.
Section 20.02 Environmental Inspection. At the expiration or sooner
termination of this Sublease, Tenant shall have conducted, at Tenant's expense,
a Phase I Environmental Inspection and any additional inspection such Phase I
Inspection indicates is appropriate or necessary. Upon receipt of such
environmental reports, Tenant shall, at its sole cost and expense, bring the
Leased Premises into compliance with all applicable State and Federal
Environmental Laws, as reflected in such environmental inspections. In the
event Tenant fails to have such inspections completed within 30 days subsequent
to the termination of the Sublease, Landlord may, but shall not be required, to
conduct such inspections and remedy such deficiencies, and Tenant shall be
fully liable for the total cost.
ARTICLE XXI
HOLDING OVER
If Tenant shall, with the consent of Landlord, hold over after the
expiration or sooner termination of the term of this Sublease, the resulting
tenancy shall be a month-to-month tenancy, which tenancy may be terminated upon
thirty (30) days' written notice by Tenant to Landlord, or by seven (7) days'
written notice from Landlord to Tenant. Notwithstanding the foregoing, any
holding over by Tenant after termination of this Sublease without Landlord's
consent or while Tenant is in default hereunder shall be terminable at will by
Landlord. During such tenancy, Tenant agrees to pay to Landlord rental at a
rate equal to one hundred twenty-five percent (125%) of the rental applicable
for the last month of term of this Sublease unless a different rate is agreed
upon in
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writing, and to be bound by all of the terms, covenants, and conditions as
herein specified to the extent applicable.
ARTICLE XXII
NET LEASE
This Sublease is a "net" Lease and Tenant shall (except as expressly
provided to the contrary herein) pay all costs, taxes and assessments which are
connected with or arise out of the possession, use or occupancy of the Premises
or any portion thereof. All amounts payable by Tenant to Landlord hereunder
shall be paid by Tenant without notice or demand (except as herein otherwise
expressly provided) and without any set-off, counterclaim, deduction, defense,
abatement, suspension, diminution or reduction of any kind or for any reason.
ARTICLE XXIII
NOTICES
Any notice required or permitted to be given hereunder shall be in
writing and shall be considered properly given if mailed by first class United
States mail, postage prepaid, certified with return receipt requested, or by
delivering same in person to the intended addressee. For purposes of notice,
the addresses of the parties hereto shall be as set forth below:
LANDLORD :
Xxxxxx X. Xxxxxxx
201 Tampico
Xxxxxx, Xxxxx 00000
TENANT:
M. Xxx Xxxxxxxxxxx
000 Xxxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
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Any party hereto shall have the right to change such party's address for notice
hereunder by the giving of ten (10) days' notice to all other parties in the
manner set forth hereinabove. Notices sent by certified mail shall be deemed to
have been given five (5) business days following the date of mailing. Notices
given in any other manner shall be effective only if and when received by the
addressee.
ARTICLE XXIV
MISCELLANEOUS
Section 24.01 Easements. Tenant acknowledges that the Premises are
subject to easements reserved by the applicable public utilities for water
mains and other utilities and the right to operate, repair, maintain,
construct, reconstruct and alter said utility lines and construct new and
additional lines within said easement areas. Tenant agrees to release Landlord
from any and all liability of every kind and nature resulting from the exercise
by said public utilities of their rights under said retained easements.
Section 24.02 Access. Landlord, its employees, agents, and
contractors, shall have the right to enter the Premises at any reasonable time
to examine same, make such repairs, alterations, improvements or additions as
Landlord may deem necessary or desirable, and to show the Premises to
prospective tenants, insurance representatives and such other persons who in
the judgment of the Landlord have a legitimate and appropriate interest in
viewing the Premises. In addition, Tenant acknowledges and agrees that Ground
lessor, its officers and employees, have the right under the Ground Lease,
during business hours (and at any time in the case of an emergency), to enter
upon the Premises for the purposes of inspecting the Premises or doing any act
or thing which either the Ground Lessor or Landlord may be obligated to do, or
have the right to do, under the Ground Lease. If Tenant is not present to
permit entry and entry is necessary, Landlord may, in case of emergency,
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forcibly enter the Premises without rendering Landlord liable therefor, except
for the gross negligence or willful acts of Landlord, its agents or employees .
Nothing contained herein shall be construed to impose upon Landlord any duty of
inspection or repair of the premises or the Building of which the Premises are
a part except as otherwise specifically provided herein,
Section 24.03 Late Charges. If any installment of rent or other
sum due from Tenant is not received by Landlord or its designee within ten (10)
days after such amount is due, Tenant shall pay to Landlord a late charge equal
to five percent (5%) of such overdue amount as partial compensation for
additional costs incurred by Landlord due to payment delinquency. Acceptance of
such late charge by Landlord shall in no event constitute a waiver of Tenant's
default, if any, with respect to such overdue amount, nor prevent Landlord from
exercising any other rights granted herein.
Section 24.04 Waiver. The failure of Landlord to insist upon
strict performance of any of the covenants or conditions of this Sublease, or
to exercise any option herein conferred in any one or more instances, shall not
be construed to be a waiver or relinquishment of any covenant or condition, but
the same shall be and remain in full force and effect.
Section 24.05 Captions. The captions in this Sublease are for
convenience only and do not in any manner limit or amplify the provisions of
this Sublease.
Section 24.06 Severability. If any term or provision of this
Sublease or the application thereof to any person or circumstance shall, to any
extent, be invalid or unenforceable, the remainder of this Sublease or the
application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby and shall continue in full force and effect, provided, however, if
Landlord, in his sole discretion, shall determine such unenforceable provision
to be material to this Sublease, Landlord shall have the right to terminate the
Sublease on 30-days' prior written notice to Tenant.
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Section 24.07 Entire Agreement. IT IS EXPRESSLY AGREED BY LANDLORD
AND TENANT, AS A MATERIAL CONSIDERATION FOR THE EXECUTION OF THIS SUBLEASE,
THAT THIS SUBLEASE, WITH ITS SPECIFIC REFERENCES TO WRITTEN EXTRINSIC
DOCUMENTS, IS THE ENTIRE AGREEMENT OF THE PARTIES; THAT THERE ARE, AND WERE,
NO VERBAL REPRESENTATIONS, WARRANTIES, UNDERSTANDINGS, STIPULATIONS, AGREEMENTS
OR PROMISES PERTAINING TO THIS SUBLEASE OR TO THE EXPRESSLY MENTIONED WRITTEN
EXTRINSIC DOCUMENTS NOT INCORPORATED IN WRITING IN THIS SUBLEASE. NO
MODIFICATION OR AMENDMENT OF THIS SUBLEASE SHALL BE VALID OR EFFECTIVE UNLESS
EVIDENCED BY AN AGREEMENT IN WRITING EXECUTED BY LANDLORD AND TENANT.
Section 24.08 Limitation of Liability of Landlord.
Notwithstanding anything to the contrary contained in this Sublease, in the
event of any default or breach by Landlord with respect to any of the terms,
covenants and conditions of this Sublease to be observed, honored or performed
by Landlord, Tenant shall look solely to the estate and property of Landlord in
the leasehold estate and Building owned by Landlord for the collection of any
judgment (or any other judicial procedures requiring the payment of money by
Landlord), it being agreed that Landlord shall never be personally liable for
any such judgment and no other property or assets of Landlord shall be subject
to levy, execution, or other procedures for satisfaction of Tenant's remedies.
Landlord shall not be liable to Tenant under any circumstances for
consequential or special damages, including, without limitation, claims arising
out of or based on the ordinary negligence of Landlord, his agents, employees
or representatives.
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Section 24.09 Construction. This Sublease shall be deemed to be
made in and construed in accordance with the laws of the State of Texas.
Section 24.10 Authority. If Tenant is a corporation, each
individual executing this Sublease on behalf of said corporation represents and
warrants that he/she is duly authorized to execute and deliver this Sublease in
accordance with a duly adopted resolution of the Board of Directors of said
corporation and in accordance with its terms.
Section 24.11 Joint and Several Liability. If Tenant consists of
more than one person or entity, all terms, covenants and conditions contained
in this Sublease shall be deemed to be the joint and several responsibility of
each party, and all rights and remedies of the Landlord shall be cumulative and
nonexclusive of any other remedy at law or in equity.
Section 24.12 Costs and Attorney's Fees. If, by reason of any
default on the part of Tenant or Landlord, it becomes necessary for the other
to employ an attorney to take any action to collect rent or other sums due
hereunder or cure any breach or to bring suit in court to recover any rent or
other sums due hereunder, or for the breach of any provision of this Sublease,
or to recover possession of the Premises, the prevailing party shall recover
all reasonable costs and expenses (including, without limitation, reasonable
attorneys' fees) expended or incurred in addition to other relief granted
therein.
Section 24.13 Sublease Subject to Consent of Ground Lessor, The
parties hereto recognize and agree that this Sublease shall not become
effective until approved by Ground Lessor pursuant to certain rights reserved
by Ground Lessor in the Ground Lease. In connection with obtaining such
approval, Tenant agrees to provide to the Ground Lessor such information as may
be required by the Ground Lessor in considering a request for its approval of
this Sublease. Consent by the Ground Lessor to any of the provisions of this
Sublease which may be inconsistent with the Ground Lease
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does not constitute an amendment to the Ground Lease. The Ground Lease shall
supersede this Sublease in the event of any inconsistency or contradiction
between the two and this Sublease is in all things subordinate to the Ground
Lease.
Section 24.14 Successors and assigns. This Sublease shall extend to
and bind the successors, heirs and assigns of the respective parties hereto,
provided that this provision shall not authorize or permit any assignment or
other transfer of this Sublease or any part thereof, except as expressly
permitted in Article X hereof.
Section 24.15 Financial Information. Within twenty (20) days after
written request from Landlord, Tenant shall deliver to Landlord or lender
designated by Landlord such financial information as is reasonably required.
This financial information shall be kept confidential.
Section 24.16 Submission of Sublease. Submission of this Sublease
to Tenant for signature does not constitute a reservation of space or an option
to lease. In addition to any other conditions to the effectiveness of this
Sublease set forth herein, this Sublease shall not become effective until fully
executed by, and delivered to, both Landlord and Tenant and approved in writing
by Ground Lessor.
Section 24.17 Exhibits. All exhibits referred to herein and any
exhibits which may be referred to in any amendment hereto are by such reference
incorporated herein and shall be deemed a part of this Sublease as fully as if
set forth herein. The following numbered or lettered exhibits are attached
hereto and made a part hereof for all purposes:
Exhibit "A" - Legal Description of Land
Exhibit "B" - Ground Lease No. 23555-H, Supplemental Agreements Nos.
23555-H1 and 23555-H2, 4.460 acres more or less
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Section 24.18 Purchase Option. Tenant is hereby granted an Option
to purchase Landlord's interest in the Leased Premises and Ground Lease on the
following terms and conditions:
(a) The Option must be exercised and closed within four years from
the Effective Date of this Lease;
(b) Notice of the exercise of the Option shall be given by Tenant
to Landlord in writing at least 60 days prior to the proposed closing date;
(c) The purchase price shall be $2,200,000, payable in cash at
closing. The purchase price shall be reduced by the sum of $5,000 for each
month prior to closing that Tenant has leased the Premises and paid its full
monthly rent according to this Sublease;
(d) Such Sale is expressly subject to the consent of Ground Lessor
and Ground Lessor's further agreement to release Landlord from any further
obligations or liability to it arising out of the Ground Lease. The obligation
to obtain such consent shall be Tenant's. Landlord shall give his reasonable
cooperation in obtaining such consent but shall not be required to expend any
money or assume any obligations in connection with obtaining the consent of
Ground Lessor or assigning Landlord's interest;
(e) Tenant shall purchase the Property "AS IS" without warranty,
express or implied other than that Landlord transfers to Tenant good and
unencumbered title to all interest in the Premises under the Ground Lease. Any
survey or title policy shall be at Tenant's cost. Ad valorem taxes on the
Leased Property for the year in which the sale is closed shall be pro rated to
date of closing. Tenant shall pay all other costs of closing, the Purchase
Price set forth in paragraph 24.18(c) being net to Landlord less only
Landlord's pro rated portion of taxes for the year of closing; and
(f) All closing documents shall be in form reasonably acceptable to
Landlord.
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ARTICLE XXV
RECORD OF MEMORANDUM
25.01 Memorandum of Lease. Landlord and Tenant shall execute and
acknowledge an appropriate record memorandum of this Sublease, which shall give
notice of the existence of the Sublease and of the purchase option in Section
23.18.
EXECUTED as of this 15th day of March, 1993.
LANDLORD :
XXXXXX X. XXXXXXX:
__________________________________________
Xxxxxx X. Xxxxxxx
TENANT:
M. XXX XXXXXXXXXXX
__________________________________________
M. Xxx Xxxxxxxxxxx
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EXHIBIT A
Commencing at the Airport reference point which is located at Texas Xxxxxxx
coordinates of North 447,356.04 and East 2,140,991.46 and is the basis for a
plane grid established for the Dallas/Fort Worth Airport;
Thence West 7,586.46 feet to a point for corner;
Thence North 3,808.78 feet to a 5/8 inch iron pin in the east right-of-way line
of a 50 foot access easement (unrecorded) and the north right-of-way of Hangar
Road (a 70 foot public right-of-way) said iron pin having Dallas/Fort Worth
Regional Airport coordinates of North 451,664.82 and East 2,133,405.00
(coordinates not Xxxxxxx) said iron pin also being the point of beginning of
the herein described tract of land;
Thence West along the north right-of-way line of Hangar Road 322.29 feet to a
5/8 inch iron pin with plastic cap stamped "Xxxxxx & Xxxxxxx" (set);
Thence North 457.63 feet to an "X" cut in concrete apron (set) at base of
fence;
Thence East at 272.29 feet pass the west line of aforementioned 50 foot access
easement and continue on in all a total distance of 312.29 feet to a point;
Thence N 45degrees00'00" E, at 14.14 feet past the east line of said 50 foot
access easement and continue on in all a total distance of 197.99 feet to a
point;
Thence South 110.00 feet to a point;
Thence East 155.37 feet to a point;
Thence S 45degrees00'00" W, 404.28 feet to a point, said point being in the
east right-of-way line of aforementioned 50 foot access easement;
Thence South along the east right-of-way line of said 50 foot access easement
201.81 feet to the point of beginning and containing 194,277.60 square feet or
4.460 acres of land, more or less.
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EXHIBIT D
AGREEMENT AND ASSUMPTION OF LEASE
This Agreement and Assumption of Lease ("Agreement") is made by and
between the Dallas/Fort Worth International Airport Board (the "Board"), Kitty
Hawk, Inc. ("KHI: "), and Xxxxxx X. Grammar ("Grammar") on the following terms
and conditions:
WHEREAS, by Agreement of Lease bearing D/FW Airport Lease No. 23555,
dated as of February 1, 1983, the Board as Lessor leased certain real property
located on D/FW Regional Airport (the "Property") to Sedalia-Xxxxxxxx-Boonville
Stage Line, Inc. ("SMB") as Lessee, incorporated herein by reference; and
WHEREAS, by Supplemental Agreements of March 6, 1984 and April 1, 1986
the leased acreage was reduced to 4.460 acres more or less, said Supplemental
Agreements being incorporated herein by reference) (said Agreement of Lease and
Supplemental Agreements being referred to herein collectively as the "Lease");
and
WHEREAS, by Letter Agreement dated January 17, 1997, Grammar and Sky
Chefs, Inc. jointly requested this Board to transfer a 20-foot strip of
property from D/FW Lease No. 25210 to Grammar D/FW Lease No. 23555, and such
action is pending for approval of the Board (hereinafter referred to as the
"20-foot strip"); and
WHEREAS, SMB with the consent of the Board caused an aircraft hangar
(the "Hangar") to be built on the leased Property, which hangar was financed
with one certain $1,500,000 Grapevine Industrial Development Corporation
Industrial Development Revenue Bond, Series 1982 (Sedalia-Xxxxxxxx-Boonville
Stage Line, Incorporated Project) (the "Bond"), and said Bond was secured by a
Deed of Trust, Assignment of Rents and Financing Statement dated December 1,
1982 and recorded in Volume 7421, Page 269, of the Deed of Trust Records of
Tarrant County, Texas (the "Deed of Trust"), creating a first lien on the
Hanger and other Mortgaged Property as defined therein; and
WHEREAS, the Lease permits the mortgagee to become the legal owner and
holder of the leasehold estate under the Lease by foreclosure or similar
proceedings; and
AGREEMENT AND ASSUMPTION OF LEASE - Page 1 January 31, 1997
86
WHEREAS, Grammar lawfully and for good consideration, as represented
to the Board, did purchase and acquire all rights and interests of the original
mortgagee, Mercantile National Bank at Dallas; and
WHEREAS, SMB filed for bankruptcy in BK No. 390-33170-HCA-ll in the
United States Bankruptcy Court for the Northern District of Texas, Dallas
Division, and Grammar thereafter obtained an Order Modifying Automatic Stay
which granted Grammar the right to foreclose the Deed of Trust; and
WHEREAS, on August 7, 1990 Grammar, as owner and holder of the Bond
and Deed of Trust Lien securing the Bond, after having first given notice as
required by Texas law, did foreclose said Deed of Trust, as amended, at the
Courthouse of Tarrant County, Texas, at which sale Grammar purchased the
Mortgaged Property including the Hangar; and
WHEREAS, on October 1, 1990 Grammar and the Board as "Lessor" entered
into an "Assignment and Assumption of Lease" whereby, on the terms and
conditions contained therein, the Board allowed Grammar to assume the Lease;
and
WHEREAS, KHI and Grammar desire to have the Board recognize KHI as the
Lessee under the Lease (including, without limitation, the 20-foot strip of
land referenced above) and release Grammar from all further obligations
thereunder, and the Board is willing to accept KHI as such Lessee and release
Grammar, all on the terms and conditions hereinafter set forth;
NOW THEREFORE, the Board, KHI and Grammar agree as follows:
1. As of the effective date of this Agreement, KHI hereby assumes
and agrees to be bound by and comply with all of the terms, conditions and
covenants of the Lease and Supplements thereto arising on or after the date of
this Agreement (including, without limitation, the 20-foot strip of land
referenced above), and the Board hereby consents to KHI as Lessee under said
Lease, and hereby releases Grammar from all obligations of the Lease, and the
October 1, 1990 Agreement and Assumption of Lease, together with all
Supplements and modifications thereto through the effective date of this
Agreement (including, without limitation, the 20-foot strip of land referenced
above). The Board agrees to be bound by and honor its obligations as Lessor
under said Lease. The legal description of said lease as supplemented by the
addition
AGREEMENT AND ASSUMPTION OF LEASE - Page 2 January 31, 1997
87
of the 20-foot strip is attached hereto as Exhibit "A," with a separate
description of the 20-foot strip attached as Exhibit "B."
2. Except as modified by this Agreement, all of the terms, rents,
conditions and provisions of the Lease as amended or supplemented through the
effective date of this Agreement are hereby ratified and confirmed.
3. This Agreement (together with its Exhibits which are
incorporated herein by reference) represents the entire understanding and
agreement of the parties hereto and may not be amended or modified except in
writing signed by the parties affected thereby. All prior agreements and
understandings between the parties with regard to the subject matter hereof,
are merged herein and superseded hereby. Further, all rights and obligations of
the Mortgagee under the Lease are hereby merged into KHI as Lessee, and Grammar
is released therefrom.
4. This Agreement shall be construed in accordance with the laws
of the State of Texas. Venue for any suit brought hereunder shall lie
exclusively in Dallas or Tarrant County, Texas.
5. Any notice to be given to Lessee pursuant to the Lease or this
Agreement shall be given to Kitty Hawk, Inc., 0000 X. 00xx Xxxxxx, X/XX
Xxxxxxx, Xxxxx 00000, Attention: M. Xxx Xxxxxxxxxxx, with copy to: Xxxxx Xxxxx,
Xxxxxxxx, 0000 Renaissance Tower, 0000 Xxx Xxxxxx, Xxxxxx, Xxxxx 00000-0000,
until such address is changed by written notice given in compliance with the
terms of the Lease.
(THIS SPACE INTENTIONALLY LEFT BLANK)
AGREEMENT AND ASSUMPTION OF LEASE - Page 3 January 31, 1997
88
EXECUTED as of this _____ day of ______________, 1997.
LESSOR:
DALLAS/FORT WORTH INTERNATIONAL
AIRPORT BOARD:
By: __________________________________
Executive Director
ATTEST:
________________________________
Secretary to the Board
APPROVED:
_________________________________
Legal Counsel to the Board
LESSEE:
KITTY HAWK, INC.:
By : __________________________________
Its: __________________________________
ATTEST:
By: __________________________
ASSIGNOR:
__________________________________
Xxxxxx X. Grammar
AGREEMENT AND ASSUMPTION OF LEASE - Page 4 January 31, 1997
