FORM 10-QA
AMENDMENT #1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Quarterly Report Under Section 13 or 15 (d)
of the Securities Exchange Act of 1934
For Quarter Ended December 31, 1995
Commission File Number 0-11720
AIR TRANSPORTATION HOLDING COMPANY, INC.
(Exact name of registrant as specified in its charter)
Delaware 52-1206400
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Post Office Box 488, Denver, North Carolina 28037
(Address of principal executive offices)
(704) 377-2109
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15 (d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days.
Yes X No
APPLICABLE ONLY TO CORPORATE ISSUERS:
Indicate the number of shares outstanding of each of the issuer's
classes of common stock, as of the latest practicable date.
2,693,933 Common Shares, par value of $.25 per share were outstanding as
of January 31, 1996.
This filing contains 106 pages.
The exhibit index is on page 4.
<PAGE>
PART II -- OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
No. Description
4.1 Specimen Common Stock Certificate, incorporated by reference to
Exhibit 4.1 of the Company's Annual Report on Form 10-K for the
fiscal year ended March 31, 1994.
10.1 Domestic Aircraft Wet Lease Agreement dated April 1, 1994 between
Mountain Air Cargo, Inc. and Federal Express Corporation, Inc.,
incorporated by reference to Exhibit 10.4 to Amendment No. 1 on
form 10-Q/A to the Company's Quarterly Report on Form 10-Q for the
period ended September 30, 1994.
10.2 Form of option to purchase the following amounts of Common Stock
issued by the Company to the following executive officers during
the following fiscal years ended March 31:
Number of Shares
Executive Officer 1993 1992 1991
J. Hugh Bingham 150,000 150,000 200,000
Walter Clark 100,000 100,000 100,000
John J. Gioffre 100,000 100,000 125,000
William H. Simpson 200,000 200,000 300,000
incorporated by reference to Exhibit 10.8 of the Company's
Annual Report on Form 10-K for the fiscal year ended March
31, 1993.
10.3 Aircraft Dry Lease and Service Agreement dated February 2, 1994
between Mountain Air Cargo, Inc. and Federal Corporation.,
incorporated by reference to Exhibit 10.13 to the Company's
Quarterly Report on Form 10-Q for the quarterly period ended June
30, 1994.
10.4 Loan Agreement among NationsBank of North Carolina, N.A. the
Company and its subsidiaries, dated January 12, 1995, incorporated
by reference to Exhibit 10.7 to the Company's Quarterly Report on
Form 10-Q for the quarterly period ended December 31, 1994.
10.5 Premises and Facilities Lease dated November 16, 1995 between
Global Transpark Foundation, Inc. and Mountain Air Cargo, Inc.
11.1 Computation of primary and fully diluted earnings per share,
incorporated by reference to Exhibit 11.1 to the Company's
Quarterly Report on Form 10-Q for the quarterly period ended
December 31, 1995.
27.1 Financial Data Schedule incorporated by reference to Exhibit 27.1
to the Company's Quarterly Report on Form 10-Q for the quarterly
period ended December 31, 1996.
(b) None
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
AIR TRANSPORTATION HOLDING COMPANY, INC.
(Registrant)
Date: April 19, 1996 /s/ David Clark
David Clark, Chief Executive Officer
Date: April 19, 1996 /s/ John Gioffre
John J. Gioffre, Vice President-Finance
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
AIR TRANSPORTATION HOLDING COMPANY, INC.
(Registrant)
Date: April 19, 1996
David Clark, Chief Executive Officer
Date: April 19, 1996
John J. Gioffre, Vice President-Finance
<PAGE>
AIR TRANSPORTATION HOLDING COMPANY, INC.
EXHIBIT INDEX
Exhibit PAGE
10.5 Premises and Facilites Lease......................5-106
<PAGE>
CONFORMED COPY
PREMISES AND FACILITIES LEASE
between
Global TransPark Foundation, Inc.
and
Mountain Air Cargo, Inc.
Dated as of November 16, 1995
Certain rights of the Global TransPark Foundation, Inc., and certain amounts
payable by Mountain Air Cargo, Inc., under this Premises and Facilities Lease
shall be pledged to secure a Term Loan in the amount of $5,800,000.00 to be
made by Branch Banking and Trust Company (the "Bank") pursuant to a certain
Construction and Term Loan Agreement between the Foundation and the Bank.
TABLE OF CONTENTS
ARTICLE I
INTERPRETIVE MATTERS
Section 1.1.Interpretation and Construction 3
ARTICLE II
REPRESENTATIONS
Section 2.1.Representations and Covenants by the Foundation 4
Section 2.2.Representations and Covenants by the Company 5
ARTICLE III
LEASE OF THE PREMISES AND THE FACILITIES
Section 3.1.Lease of Premises 7
Section 3.2.Lease of Facilities; Option for Additional Space 8
Section 3.3.Access 9
Section 3.4.Modification of Access Route 9
Section 3.5.Right of First Refusal for Additional Premises. 10
ARTICLE IV
LEASE TERM
Section 4.1.Term of the Lease 11
Section 4.2.Surrender of Possession 11
Section 4.3.Reversion 11
Section 4.4.Evidence of Termination 11
Section 4.5.Removal of Company Property 11
Section 4.6.Effect of Holding Over 12
ARTICLE V
ACQUISITION, CONSTRUCTION AND EQUIPPING OF
THE FACILITIES; NO WARRANTY BY THE FOUNDATION
Section 5.1.Agreement to Acquire, Construct and Install the Facilities; Plans
and Specifications; Authorized Company Representative 13
Section 5.2.Title to the Facilities 13
Section 5.3.Notices and Permits; Legal Conformance 14
Section 5.4.No Warranty of Condition or Suitability by the Foundation 14
<PAGE>
ARTICLE VI
PAYMENTS UNDER THIS LEASE
Section 6.1.Lease Rental Payments; Pledge of Lease Rental Payments 15
Section 6.2.Expanded Facilities Rentals 16
Section 6.3.Payments Under Lease in Addition to Payments Under Airport Use
Agreement 16
Section 6.4.Obligations of Company Hereunder Unconditional 17
ARTICLE VII
SPECIAL COVENANTS
Section 7.1.Financial Statements of Company 18
Section 7.2.Company to Maintain its Corporate Existence; Conditions Under
Which Exceptions Permitted 18
Section 7.3.Indemnification Covenants 19
Section 7.4.Taxes on Company Property 20
Section 7.5.Quiet Enjoyment 21
Section 7.6.Patents and Trademarks 21
Section 7.7.Assignments and Subleases by Company 21
Section 7.8.Company Books and Records 21
Section 7.9.United States Department of Transportation, Federal Aviation
Administration Provisions 21
ARTICLE VIII
USE AND MAINTENANCE OF FACILITIES
Section 8.1.Permitted Use; Limitations Upon Use and Location 23
Section 8.2.Compliance with Environmental and Safety Requirements 23
Section 8.3.Compliance with Airport Regulations 23
Section 8.4.Compliance with Other Governmental Regulations 24
Section 8.5.No Obstruction to Air Navigation 24
Section 8.6.Utilities 24
Section 8.7.Alterations to Leased Property 24
Section 8.8.Company Property 25
Section 8.9.Disposition of Company Property at End of Lease Term 25
Section 8.10.Repair, Maintenance, and Replacement 25
Section 8.11.Right to Enter, Inspect, and Make Repairs 26
Section 8.12.Signs 27
Section 8.13.Use, Possession, or Sale of Alcoholic Beverages or Drugs 27
Section 8.14.Smoking Policy 27
Section 8.15.Security 27
<PAGE>
ARTICLE IX
LOSS OF AND LIABILITIES
PERTAINING TO FACILITIES
Section 9.1.Property Insurance 28
Section 9.2.Liability Insurance 29
Section 9.3.Waiver of Right of Recovery and Subrogation 29
Section 9.4.Payment of Insurance Proceeds 29
Section 9.5.Continued Obligation to Pay Rentals 29
Section 9.6.Limitations as to Policies 29
Section 9.7.Failure of Company to Provide Insurance 30
Section 9.8.Notification of Loss and Compliance with Policies 30
Section 9.9.Damage or Destruction and Restoration 30
Section 9.10.Restoration or Replacement to be Undertaken Within Specified
Time 31
Section 9.11.Foundation's Election Not to Restore Damaged Property 31
Section 9.12.Condemnation 31
ARTICLE X
LIENS AND CLAIMS
Section 10.1.Prompt Payment of Taxes and Fees 34
Section 10.2.Workers' Compensation Insurance 34
Section 10.3.Mechanics' and Materialmen's Liens 34
Section 10.4.Prompt Payment of Other Obligations 34
Section 10.5.Right of Contest 34
Section 10.6.Nonpayment During Contest 34
ARTICLE XI
EVENTS OF DEFAULT AND REMEDIES
Section 11.1.Events of Default Defined 36
Section 11.2.Force Majeure 37
Section 11.3.Remedies on Default 37
Section 11.4.No Remedy Exclusive 39
Section 11.5.Agreement to Pay Fees and Expenses of Counsel 40
Section 11.6.No Additional Waiver Implied by One Waiver; Consents to
Waivers 40
ARTICLE XII
MISCELLANEOUS
Section 12.1.Notices 41
Section 12.2.No Personal Liability 42
Section 12.3.No Limitation on Previous Agreements 42
Section 12.4.Binding Effect 42
Section 12.5.Assignment 42
Section 12.6.Third Parties 42
Section 12.7.Attachments 42
Section 12.8.Numbers; Gender; Captions; Capitalized Terms;
Certain Definitions 42
Section 12.9.Further Assurances 43
Section 12.10.Dispute Resolution; Mediation 43
Section 12.11.Governing Law; Venue 44
Section 12.12.Integration 44
Section 12.13.Amendments, Changes and Modifications 44
Section 12.14.Severability 44
Section 12.15.Partial Invalidity 45
Section 12.16.Multiple Counterparts 45
Section 12.17.Benefit of and Enforcement by the Bank or Agent for the
Beneficial Holders of the Notes 45
Section 12.18.Nondisturbance and Attornment. 45
Section 12.19.Memorandum of Lease 45
Exhibit A Survey Map Showing the Premises
Exhibit A-A Description of Parcel A
Exhibit A-B Description of Parcel B
Exhibit A-C Description of Parcel C
Exhibit A-D Description of Parcel D
Exhibit A-E Description of Parcel E
Exhibit B References to Specifications and Drawings
Exhibit B-1 Drawing of First Floor Plan
Exhibit B-2 Drawing of Second Floor Plan
Exhibit B-3 Drawing of Mezzanine Floor Plan
Exhibit B-4 Table of Square Footage Calculation
Exhibit C Additional Parcel Subject to Right of First Refusal
Exhibit D Additional Space Subject to Option to Lease
Exhibit E Environmental and Safety Requirements
Exhibit F Avigation Easement
Exhibit G Federal Airport Assurances - Airport Sponsors
Exhibit H Reverter to Airport Sponsors
Exhibit I Nondiscrimination in Airport Employment Opportunities
Exhibit J Disadvantaged Enterprises
Exhibit K Kinston Regional Jetport - Rules & Regulations
Exhibit L Memorandum of Lease
PREMISES AND FACILITIES LEASE dated as of November16, 1995, (this "Lease"),
between Global TransPark Foundation, Inc., a North Carolina nonprofit
corporation (the "Foundation"), and Mountain Air Cargo, Inc., a North Carolina
corporation (the "Company").
RECITALS
WHEREAS, the North Carolina Global TransPark Authority (the "Authority") was
created by the General Assembly of the State of North Carolina (the "State")
for the purpose of developing a unique business complex to be called the North
Carolina Global TransPark (the "Global TransPark"); and
WHEREAS, the Authority has identified the Kinston Regional Jetport (the
"Airport") located in Lenoir County, North Carolina, as the preferred location
for the Global TransPark; and
WHEREAS, the Authority has concluded an agreement by and among the City of
Kinston ("Kinston") and the County of Lenoir ("Lenoir County"), North Carolina
(Kinston and Lenoir County are hereinafter sometimes referred to collectively
as the "Airport Sponsors") and the Authority, whereby the Authority has
acquired a certain tract of real property at the Airport (the "Authority's
Airport Property"); and
WHEREAS, the Authority has leased to the Foundation approximately eight and
two-tenths (8.2) acres of such property (the "Foundation's Leasehold") as
shown on Exhibit A hereto, consisting of the parcels identified by the letters
"A," "B," "C," and "D," pursuant to a certain Long-Term Premises Lease dated
as of August 29, 1995 (the "Long-Term Lease"), between the Authority and the
Foundation; and
WHEREAS, the Authority has granted to the Foundation in the Long-Term Lease a
non-exclusive right of way and easement for the purposes of ingress, egress,
regress, access, the installation and maintenance of utilities, and further
subdivision over and through the parcel identified by the letter "E" on
Exhibit A hereto; and
WHEREAS, the Authority has granted to the Foundation in the Long-Term Lease a
right of first refusal, on the terms set forth in the Long-Term Lease, on the
parcel (the "Expansion Parcel") identified by the letter "G" on Exhibit A
hereto and described in Exhibit C hereto; and
WHEREAS, it is in the best interests of the Authority and the Foundation to
encourage and assist in the development of activities relating to air
transportation at the Airport in the furtherance of the development of the
Global TransPark; and
WHEREAS, the Company is an airline company authorized to provide air freight
service at the Airport and to operate on and from the Airport in the business
of transporting property, cargo and mail, or one or more thereof, to and from
the Airport by aircraft and to operate on and from the Airport an aircraft
maintenance and other aviation-related businesses; and
WHEREAS, the Airport Sponsors, the Lenoir County/City of Kinston Airport
Commission (the "Commission"), the Authority, and the Company will enter into
a certain Airport Use Agreement to be dated as of November 16, 1995, (the
"Airport Use Agreement") pursuant to which the Company will have certain
rights to use the facilities designated therein at the Airport, subject to
certain obligations; and
WHEREAS, the Company desires to occupy and use a new aircraft hangar (the
"Hangar") to be constructed by the Foundation at the Airport and certain
facilities within such hangar, including an aircraft maintenance facility, an
air freight facility, air operations facilities, and office space
(collectively, the "Facilities"), all in accordance with the Specifications
and Drawings referred to in Exhibit B hereto, and to lease the Facilities and
that portion of the Foundation's Leasehold (the "Premises") upon which the
Facilities are to be located (the Premises and the Facilities are hereinafter
called, collectively, the "Leased Property") from the Foundation in accordance
with the terms hereinafter contained; and
WHEREAS, the Foundation proposes to finance a portion of the costs of
acquiring, constructing and equipping the Facilities through the issuance of
its promissory note or notes (the "Notes") pursuant to a certain Construction
and Term Loan Agreement (the "Loan Agreement") to be entered into by and
between Branch Banking and Trust Company, a banking organization organized and
existing under the laws of the State (the "Bank"), and the Foundation; and
WHEREAS, the Foundation has agreed with the Bank to assign this Lease and all
rentals and other payments hereunder as security under the Loan Agreement,
pursuant to that certain Deed of Trust, Security Agreement, Financing
Statement, and Assignment of Leases to be entered into by and among the
Foundation as Grantor, Jerone C. Herring, as Trustee, and the Bank as the
Beneficiary, and a separate Assignment of Leases and Rents to be entered into
by and between the Foundation as Assignor and the Bank as Assignee
(collectively, the "Security Agreement").
WHEREAS, under the Loan Agreement, the Bank may sell participations in the
Notes to other banks which together with the Bank (hereinafter sometimes
referred to collectively as the "Beneficial Holders of the Notes") are
entitled to the security and other benefits provided by the Security
Agreement; and
WHEREAS, the Foundation proposes to lease to the Company and the Company
proposes to lease from the Foundation the Leased Property in accordance with
this Lease which, among other matters, provides for the payment of Lease
Rental Payments and other amounts described herein.
NOW, THEREFORE, in consideration of the respective representations and
covenants contained herein, the Foundation and the Company hereby agree as
follows:
<PAGE>
ARTICLE I
INTERPRETIVE MATTERS
Section 1.1.Interpretation and Construction. For all purposes of this Lease,
except as otherwise expressly provided or unless the context otherwise
requires:
(a)All references in this Lease designated "Articles," "Sections,"
"subsections," "paragraphs," "clauses" and other subdivisions are to the
designated Articles, Sections, subsections, paragraphs, clauses and other
subdivisions of this Lease. The words "herein," "hereof," "hereto," "hereby,"
"hereunder" and other words of similar import refer to this Lease as a whole
and not to any particular Article, Section, subsection, paragraph, clause, or
other subdivision.
(b)Every "request," "order," "demand," "application," "appointment," "notice,"
"statement," "certificate," "consent" or similar action hereunder by the
Foundation or the Company shall be in writing and signed on behalf of the
Foundation by the President, a Vice President, or the Authorized Foundation
Representative as provided herein or such person so designated, from time to
time, by the Foundation to the Company pursuant to notice given hereunder or
on behalf of the Company by the Authorized Company Representative as provided
herein or such person so designated, from time to time, by the Company to the
Foundation pursuant to notice given hereunder.
(c)In the computation of a period of time from a specified date to a later
specified date, the word "from" means "from and including" and each of the
words "to" and "until" means "to but excluding."
(d)As used in this Lease, the phrase "to the knowledge" shall mean, with
respect to either party hereto, that the party, after reasonable inquiry, has
no actual knowledge to the contrary.<PAGE>
ARTICLE II
REPRESENTATIONS
Section 2.1.Representations and Covenants by the Foundation. The Foundation
hereby represents and covenants that:
(a)The Foundation is a corporation, duly organized and existing under the laws
of the State.
(b)The Foundation is duly authorized and empowered to enter into the
transactions contemplated by this Lease and to carry out its obligations
hereunder and thereunder, including the making and issuance of the Notes
pursuant to the Loan Agreement.
(c)The Foundation has sufficient leasehold interest to the Premises to enable
the Foundation to acquire, construct and install the Facilities on the
Premises and to enable the Foundation to lease the Premises and the Facilities
to the Company.
(d)None of the execution and delivery of this Lease, the issuance and sale of
the Notes under the Loan Agreement, the consummation of the transactions
contemplated hereby and thereby, or the fulfillment of or compliance with the
terms and conditions of this Lease or the Loan Agreement materially conflict
with or will result in a material breach of the terms, conditions or
provisions of any restriction or any agreement or instrument to which the
Foundation is now a party or by which it is bound, or constitute a default
under any of the foregoing.
(e)The Foundation has not pledged and will not pledge any interest in the
Lease Rental Payments other than to secure the Notes pursuant to the Loan
Agreement to the extent provided in the Security Agreement.
(f)When executed and delivered by the duly authorized officers of the
Foundation and the other party thereto, respectively, this Lease will
constitute a valid, binding, and enforceable obligation of the Foundation
enforceable against the Foundation in accordance with its terms except to the
extent that enforceability may be limited by (i) applicable bankruptcy,
insolvency, reorganization, moratorium, or similar laws from time to time in
effect which affect creditors' rights generally, (ii) legal and equitable
limitations on the availability of injunctive relief, specific performance,
and other equitable remedies, and (iii) general principles of equity and
applicable laws or court decisions limiting the enforceability of
indemnification provisions.
(g)To the knowledge of the Foundation, no person holding office of the
Foundation, either by election or appointment, has any interest, either
directly or indirectly, in any contract being entered into or with respect to
any work to be carried out in connection with the construction and equipping
of the Facilities.
(h)To the knowledge of the Foundation, with respect to the Premises, the
Foundation is in full compliance with all applicable environmental laws,
rules, requirements, orders, directives, ordinances and regulations of the
United States of America, the State and Lenoir County and any other lawful
authority having jurisdiction over or affecting the Premises, and the
Foundation is not aware of any potential claim or liability under any such
environmental laws, rules, requirements, orders, directives, ordinances and
regulations or of any events, conditions, circumstances, activities,
practices, actions or plans which may give rise to any such claim or
liability.
(i)The Facilities shall consist of the facilities described in, and shall be
constructed and equipped in accordance with the Specifications and Drawings
referred to in Exhibit B hereto, and no changes shall be made in the
Facilities except as permitted by Section 5.1 hereof.
Section 2.2.Representations and Covenants by the Company. The Company hereby
represents and covenants that:
(a)The Company is a corporation duly incorporated and in good standing in the
State, is not in violation of any provision of its Articles of Incorporation
or its by-laws, has full corporate power to own its properties and conduct its
business, has full legal right, power and authority to enter into this Lease
and to consummate all transactions contemplated by this Lease and by proper
corporate action has duly authorized the execution and delivery of this Lease.
(b)Neither the execution and delivery by the Company of this Lease nor the
consummation by the Company of the transactions contemplated by this Lease
conflict with, will result in a breach of or default under or will result in
the imposition of any lien on any property of the Company pursuant to the
Articles of Incorporation or by-laws of the Company or the terms, conditions
or provisions of any statute, order, rule, regulation, agreement or instrument
to which the Company is a party or by which it is bound, or constitute a
default under any of the foregoing.
(c)This Lease has been duly authorized by the Board of Directors of the
Company, and when executed and delivered by the duly authorized officers of
the Company and the other party hereto, respectively, this Lease will
constitute a legal, valid, and binding obligation of the Company enforceable
against the Company in accordance with its terms except to the extent that
enforceability may be limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium, or similar laws from time to time in effect which
affect creditors' rights generally, (ii) legal and equitable limitations on
the availability of injunctive relief, specific performance, and other
equitable remedies, and (iii) general principles of equity and applicable laws
or court decisions limiting the enforceability of indemnification provisions.
(d)There are no pending or threatened actions or proceedings before any court
or administrative agency which individually (or in the aggregate in the case
of any group of related lawsuits) is expected to have a material adverse
effect on the financial condition of the Company or the ability of the Company
to perform its obligations under this Lease.
(e)To the knowledge of the Company, no person holding office of the Company,
either by election or appointment, has any interest, either directly or
indirectly, in any contract being entered into or with respect to any work to
be carried out in connection with the construction and equipping of the
Facilities.<PAGE>
ARTICLE III
LEASE OF THE PREMISES AND THE FACILITIES
Section 3.1.Lease of Premises.
(a)The Foundation hereby leases to the Company, and the Company hereby leases
from the Foundation, the Premises, as more fully described in Exhibit A-B
hereto, for non-exclusive use by the Company on the terms and conditions set
forth in this Lease, including but not limited to the Foundation's agreement
to acquire, construct and equip the Facilities in accordance with Section 5.1
hereof and the Company's agreement to pay Lease Rental Payments to the
Foundation in accordance with Section 6.1 hereof. The Foundation expressly
reserves from the lease of the Premises (i) all water, gas, oil and mineral
rights in and under the soil, and (ii) the Avigation Easement set forth in
Exhibit F hereto.
(b)The Foundation hereby grants to the Company, its successors and assigns in
accordance with this Lease, an easement and right to use in common with the
Foundation those portions of the Foundation's Leasehold identified by the
letters "C" and "D" on Exhibit A hereto and described in Exhibits A-C and A-D
hereto pursuant to the terms of this Lease. Such portion of the Foundation's
Leasehold identified by the letter "A" on ExhibitA hereto and described in
Exhibit A-A hereto shall be for the exclusive use of the Foundation, its
successors and assigns; subject, however, to the provisions of Section 3.3
hereof.
(c)Exhibit A-C and Exhibit A-D, respectively, describe the east and west
parking areas, respectively, of the Foundation's Leasehold; the parking spaces
in each such area shall be designated by number. Assignment of the parking
spaces, by number, as between the Company and the Foundation shall be
determined by mutual agreement of the Authorized Representatives (as
hereinafter defined); and, thereafter, such parking places, excluding,
however, access thereto, shall become designated for exclusive use by the
Company or by the Foundation, as the case may be.
(d)The parcel described in Exhibit A-C hereto includes some of the landscaped
portions of the Foundation's Leasehold. Subject to the provisions of Section
8.12 hereof, the area in which signs may be erected by the Company, with the
prior consent of the Foundation, will be in the parcel identified by the
letter "C" on Exhibit A hereto.
(e)The Foundation and the Company acknowledge that the descriptions in Exhibit
A, Exhibit A-A, Exhibit A-B, Exhibit A-C, Exhibit A-D, Exhibit A-E, and
Exhibit C hereto on the date of commencement of the term of this Lease are
approximate and that, following completion of the "as-built" survey, exact
metes and bounds descriptions for each such parcel shall be provided and
substituted by the Foundation as revised Exhibits with the same designations
without the requirement of a formal amendment to this Lease. Thereafter, such
Exhibits hereto shall be revised from time to time to reflect additions to,
deletions from, and changes in, the Foundation's Leasehold, including, without
limitation, the Premises, if any, made in accordance with this Lease.
Section 3.2.Lease of Facilities; Option for Additional Space.
(a)The Foundation hereby leases to the Company, and the Company hereby leases
from the Foundation, the Facilities to be constructed in accordance with the
Specifications and Drawings referred to in Exhibit B, for non-exclusive use by
the Company, on the terms and conditions set forth in this Lease, including
but not limited to the Foundation's agreement to acquire, construct, install
and equip the Facilities in accordance with Section 5.1 hereof and the
Company's agreement to pay Lease Rental Payments to the Foundation in
accordance with Section 6.1 hereof. The Facilities shall consist of the
building, improvements and any equipment constructed, installed and otherwise
acquired pursuant to Article V hereof and any property classified as a fixture
under applicable law. The Facilities shall not include the Company Property
acquired and installed by the Company pursuant to Section 8.8 hereof.
(b)Exhibits B-1, B-2, and B-3 hereto are drawings of the Hangar; and Exhibit
B-4 is a table showing a square footage calculation of the several areas of
the Hangar. The areas shown in Exhibits B-1, B-2 and B-3 hereto in the color
blue shall be for the exclusive use of the Company, its successors and assigns
in accordance with this Lease; the areas shown in the color green shall be for
the common use of the Company and the Foundation pursuant to the terms of this
Lease; and the areas shown in the color yellow shall be for the exclusive use
of the Foundation, its successors and assigns; subject, however, to the
provisions of subparagraph (c) of this Section 3.2.
(c)The Foundation hereby grants to the Company an option to lease
approximately five thousand eight hundred (5,800) square feet of the space
within the Facilities shown in the color yellow on Exhibit B-2 hereto and
described in Exhibit D hereto for the acquisition, construction, installation
and equipping of additional facilities relating to or used in connection with
the Facilities, so long as the Company is not in default under this Lease at
the time it exercises such option. In order to exercise such option, the
Company shall notify the Foundation on or before September 1, 2004, that it
intends to exercise such option and the Foundation and the Company shall enter
into an amendment to this Lease or a separate lease on or before August 31,
2005, to provide, among other things, for the leasing of such additional space
for a term commencing not later than September 1, 2005. If the Company does
not exercise such option within the period set forth in this Section 3.2(c),
all rights of the Company under the option set forth in this Section 3.2(c)
shall terminate.
(d)The term of lease of the additional space referred to in subsection (c) of
this Section 3.2 shall commence on the date of execution of an amendment to
this Lease or a separate lease (unless otherwise provided therein), as
contemplated in subsection (c) of this Section 3.2, and shall terminate on the
date of termination of this Lease. If the Company shall exercise the option
set forth in subsection (c) of this Section 3.2, the Company shall pay to the
Foundation the Expanded Facilities Rentals described in Section 6.2 hereof.
(e)The Foundation shall place, or cause to be placed, on each item of
equipment constituting Facilities a permanent nameplate, made of a suitable
material, identifying the ownership interest of the Foundation in such item as
follows: "OWNED BY GLOBAL TRANSPARK FOUNDATION, INC., KINSTON, NORTH
CAROLINA." The Company shall not allow the name of any person other than the
Foundation to be placed on any item of equipment constituting Facilities as a
designation that might be interpreted as a claim of ownership or any interest
therein; provided, however, that nothing herein contained shall prohibit the
Company from placing its customary colors and insignia on any such property
customarily exposed to public view.
(f)The Facilities shall be described in the Specifications and Drawings
referred to in Exhibit B hereto in such detail as to enable an engineer not
otherwise familiar with the Leased Property to identify and locate the various
components of the Facilities which are not subject to a separate lease.
Exhibit B shall be revised from time to time to reflect additions to,
deletions from, and changes in, the Facilities made in accordance with this
Lease.
(g)The Foundation and the Company acknowledge that the Specifications and
Drawings referred to in Exhibit B and the delineations shown on Exhibit B-1,
Exhibit B-2, Exhibit B-3, the data shown on Exhibit B-4, and the description
in Exhibit D hereto on the date of commencement of the term of this Lease are
approximate and that, following completion of construction of the Hangar,
revised drawings, data, and descriptions of the Facilities shall be provided
and substituted by the Foundation as revised Exhibits with the same
designations without the requirement of a formal amendment to this Lease.
Thereafter, such Exhibits hereto shall be revised from time to time to
reflect additions to, deletions from, and changes in, the Facilities made in
accordance with this Lease.
Section 3.3.Access. Subject to any rules and regulations heretofore or
hereafter adopted and promulgated by the Airport Sponsors or the Authority, as
the case may be, regarding the Airport, including, without limitation, any
nondiscriminatory rules and regulations governing entrance to and use of the
Airport, the Foundation shall provide the Company, subject to the provisions
of Section3.4 hereof, the non-exclusive use of roadways, driveways, walkways,
or other rights-of-way for the purposes of ingress, egress, regress, access,
the installation and maintenance of utilities, and further subdivision, over
or through the parcel identified by the letter "A" on Exhibit A hereto and
described in Exhibit A-A hereto, the parcel identified by the letter "B" on
Exhibit A hereto and described in Exhibit A-B hereto, the parcel identified by
the letter "C" on Exhibit A hereto and described in Exhibit A-C hereto, the
parcel identified by the letter "D" on Exhibit A hereto and described in
Exhibit A-D hereto, and the parcel identified by the letter "E" on Exhibit A
hereto and described in Exhibit A-E hereto, for the Company's employees,
agents, guests, patrons, and invitees, its or their suppliers of materials and
furnishers of service, and its or their equipment, vehicles, machinery and
other property; and no fee, charge or toll shall be charged directly or
indirectly for access rights.
Section 3.4.Modification of Access Route. The Foundation may, at any time,
temporarily or permanently, close, modify, alter, change the location of,
consent to or request the closing of, any roadway, driveway, walkway, or other
right-of-way for such ingress, egress, regress, and access over or through any
property owned or controlled by the Foundation, or as to which the Foundation
has such an easement, and any other area at the Airport or in its environs
presently or hereafter used as such, so long as a means of ingress, egress,
regress, and access reasonably equivalent to that formerly provided is
substituted therefor and concurrently is made available therefor. The Company
hereby releases and discharges the Foundation, the Airport Sponsors, or the
Authority, as the case may be, of and from any and all claims, demands or
causes of action which the Company now, or at any time hereafter, may have
against the Foundation, the Airport Sponsors, or the Authority, as the case
may be, arising or alleged to have arisen out of the closing of any roadway,
driveway, walkway, or other right-of-way for such ingress, egress, regress,
and access, or other area at the Airport or in its environs used as such, so
long as the Foundation, the Airport Sponsors, or the Authority, as the case
may be, makes available a means of ingress, egress, regress, and access
reasonably equivalent to that existing prior to each such modification, if
any.
Section 3.5.Right of First Refusal for Additional Premises. The Foundation
agrees not to lease or to permit the use of (i) all or any portion of the
additional land comprising the Foundation's Leasehold shown on Exhibit A
hereto (other than the Premises) or (ii) all or any portion of the Expansion
Parcel, as to which the Foundation has a right of first refusal, on or prior
to September 1, 2005, unless the Foundation shall first have given written
notice to the Company stating the Foundation's intention to do so and setting
forth a description of the terms and conditions of such lease or permit. For
a period of one hundred twenty (120) days following the giving of the
Foundation's notice of intention to the Company, the Company shall have the
option to lease the additional land described in such notice on the terms and
conditions set forth in such notice so long as the Company is not in default
under this Lease at the time it exercises such option. In order to exercise
such option, the Company shall notify the Foundation not later than the forty-
fifth (45th) day within such one hundred twenty (120) day period that it
intends to exercise such option and the Foundation and the Company shall enter
into an amendment to this Lease or a separate lease not later than the
expiration of such one hundred-twenty (120) day period to provide, among other
things, for the leasing of such additional land. If the Company does not
exercise such option within the period set forth in this Section 3.5, all
rights of the Company under the right of first refusal set forth in this
Section 3.5 shall terminate.
In the event that the Company shall exercise the right of first refusal
granted by this Section 3.5, nothing contained in this Section 3.5 or
elsewhere in this Lease shall, nor shall any such thing be deemed or construed
to, obligate the Foundation to make any improvement to, or to construct any
facilities on, the Expansion Parcel.<PAGE>
ARTICLE IV
LEASE TERM
Section 4.1.Term of the Lease. This Lease shall commence on the Date of
Beneficial Occupancy as provided in Section 7.5 hereof and shall continue
until the earliest to occur of:
(a)twenty-one (21) years and six (6) months after the Date of Beneficial
Occupancy by the Company of the Leased Property, as defined in Section 7.5
hereof;
(b)at the Foundation's option, upon the occurrence of an event of default
under Section 11.1 hereof that is not waived in accordance with Section 11.6
hereof;
(c)at the Company's option, upon ninety(90) days written notice to the
Foundation, if the Operating Agreement between the Company and Federal Express
Corporation is terminated without the consent of the Company; and
(d)at the Company's option, upon ninety (90) days written notice to the
Foundation, if the Company's F-27 aircraft operations are reduced by at least
fifty percent(50%), as measured by the number of such aircraft subject to
operating contracts between the Company and Federal Express Corporation as
compared with the number of such aircraft under such contracts to the Company
upon the Date of Beneficial Occupancy of the Facilities under this Lease.
Section 4.2.Surrender of Possession. No notice to quit possession at the
termination of this Lease shall be necessary, and the Company covenants to
surrender possession of the Leased Property peaceably upon the termination of
this Lease. The Company shall surrender the Leased Property in good
condition, reasonable wear and tear, acts of God, and other casualties
excepted.
Section 4.3.Reversion. Upon termination of this Lease, the Company shall
cease to have any rights with respect to the Leased Property under this Lease
and all rights of the Company shall revert to the Foundation.
Section 4.4.Evidence of Termination. At the termination of this Lease and
following full payment and performance of all amounts payable and obligations
to be performed hereunder having been made and performed in accordance with
the provisions of this Lease, the Foundation and the Company shall deliver to
each other any documents and take such actions as may be requested of them to
effectuate the cancellation and evidence the termination of this Lease.
Section 4.5.Removal of Company Property. Upon the surrender of the Leased
Property, the Company forthwith shall remove therefrom all of the property
installed by the Company pursuant to Section 8.8 hereof, except as otherwise
provided in Section 8.9 hereof.
Section 4.6.Effect of Holding Over. Should the Company hold over the use of
or continue to occupy the Leased Property or any part thereof after the
termination of this Lease, such holding over shall be deemed merely a tenancy
at will upon a monthly rental in an amount equal to one-twelfth of the annual
market rental value of the Leased Property plus one-twelfth of the annual
market rental value of the additional space described in Exhibit D hereto, if
the option granted in Section 3.2(c) hereof shall have been exercised by the
Company.<PAGE>
ARTICLE V
ACQUISITION, CONSTRUCTION AND EQUIPPING OF
THE FACILITIES; NO WARRANTY BY THE FOUNDATION
Section 5.1.Agreement to Acquire, Construct and Install the Facilities; Plans
and Specifications; Authorized Company Representative.
(a)The Foundation agrees that it will acquire, construct, and install the
Facilities on the Premises substantially in accordance with the Specifications
and Drawings referred to in Exhibit B hereto and the applicable provisions
set forth in Exhibit E hereto. The Specifications and Drawings shall be
approved by the Authorized Company Representative prior to the commencement of
construction of the Facilities. The Specifications and Drawings may be
revised at any time prior to the completion date for the Facilities provided
that (i) the revisions are approved by the Authorized Company Representative,
(ii) Exhibit B hereto is revised to reflect additions to, deletions from, and
changes in the specifications and drawings applicable to the Facilities, and
(iii) if such changes or additions would cost in excess of One Thousand
Dollars ($1,000) as estimated by consultants to the Foundation, the Company
and the Foundation shall have entered into an amendment or supplement to this
Lease providing for (I) payment by the Company of the capital costs of such
changes or additions, or (II) increased Lease Rental Payments sufficient to
service and amortize the additional debt which the Foundation would incur to
accommodate such changes or to construct such additions.
(b)The Company shall designate in writing an officer of the Company or another
executive-level person to act as the representative of the Company
(hereinafter called the "Authorized Company Representative") who shall have
the power and authority to approve the Specifications and Drawings and any
revisions, additions to, deletions from, and other changes in the Facilities
on behalf of the Company. The Company, from time to time, may designate a
different person as the Authorized Company Representative by notice to the
Foundation given in the manner provided in Section 12.1 hereof.
(c)Subject to Section 5.1(a) hereof, any design or construction contracts for
the Facilities shall be awarded by the Foundation without the necessity for
any approval or consent by the Company.
(d)Nothing contained in this Section 5.1 shall relieve the Company from making
the payments required to be made pursuant to Article VI hereof.
Section 5.2.Title to the Facilities.
(a)Title to all portions of the Facilities has and is vested, and shall vest,
in the Foundation as the improvements, materials, equipment, and machinery
constituting the same have been or are deposited on the Premises, erected,
installed, and/or put in place.
(b)The Company agrees to do all acts and execute and deliver all documents
necessary to confirm title to the Facilities in the Foundation.
Section 5.3.Notices and Permits; Legal Conformance.
(a)The Foundation shall give or cause to be given all notices and comply or
cause compliance with all laws, ordinances, municipal rules and regulations,
and requirements of public authorities applying to or affecting the conduct of
the work to be carried out in connection with the construction and equipping
of the Facilities, and the Foundation will defend and save the Company, its
directors, officers, employees, and agents, past, present, and future, and the
Bank harmless from all fines due to failure to comply therewith. All permits,
approvals, and licenses necessary for the prosecution of the work to be
carried out in connection with the construction and equipping of the
Facilities shall be procured or caused to be procured by the Foundation.
(b)All of the Facilities and all alterations and additions thereto which are
permitted by Section 8.7 hereof shall in all respects be constructed in
accordance with any applicable building code and all other applicable laws,
ordinances, rules, and regulations, including, without limitation, the
applicable provisions set forth in Exhibits E, F, and G hereto.
Section 5.4.No Warranty of Condition or Suitability by the Foundation. THE
COMPANY SPECIFICALLY ACKNOWLEDGES THAT, OTHER THAN AS SPECIFICALLY SET FORTH,
AND ONLY TO THE EXTENT SET FORTH, IN THIS LEASE, THE FOUNDATION MAKES NO
WARRANTY, EXPRESS OR IMPLIED, AS TO THE FACILITIES OR THEIR CONDITION OR THAT
THEY WILL BE SUITABLE FOR THE COMPANY'S PURPOSES OR NEEDS.<PAGE>
ARTICLE VI
PAYMENTS UNDER THIS LEASE
Section 6.1.Lease Rental Payments; Pledge of Lease Rental Payments.
(a)The Company agrees to make Lease Rental Payments to the Foundation as
follows:
PeriodRate
(i)First Period,None
eighteen (18) months
from the Date of
Beneficial Occupancy
(ii)Second Period, five (5)$2.25 per square foot,
years followingper year
the end of the First
Period
(iii)Third Period, five (5)$3.50 per square foot,
years followingper year
the end of the Second
Period
(iv)Fourth Period, five (5)$4.50 per square foot,
years followingper year
the end of the Third
Period
(v)Fifth Period, five (5)$5.90 per square foot,
years followingper year
the end of the Fourth
Period
All references in this Section 6.1(a) to "square foot" shall be deemed to be a
reference to the aggregate number of square feet comprising that portion of
the Facilities designated for the exclusive use of the Company, as more fully
described in Exhibits B-1, B-2, and B-3 hereto; and being, in the aggregate,
fifty-three thousand three hundred thirty-eight and no one-hundredths
(53,338.0) square feet; subject, however, to adjustments as provided in
Section 3.2(g) hereof. Exhibit B-4 hereto is a table showing the square
footage calculation of the Hangar, allocated among the Company, the
Foundation, and common use.
(b)The Lease Rental Payments to be made pursuant to Section 6.1(a) shall be
made in monthly installments in advance on the first day of each month
beginning on the first day of the month next following the Date of Beneficial
Occupancy hereunder; provided, however, that in the event that the Date of
Beneficial Occupancy occurs on any day other than on the first (1st) day of a
month, the Lease Rental Payment for the month in which the Date of Beneficiary
Occupancy shall occur shall be prorated based on the actual number of days in
such month; and, provided, further, that if the term of this Lease shall be
terminated or shall expire on any day other than the last day of a month, the
Lease Rental Payment in respect of such month shall be prorated based on the
actual number of days in such month. Any Lease Rental Payment required to be
prorated pursuant to this Section 6.1(b) shall be made in advance on the first
day of such prorated period.
(c)It is understood and agreed that all Lease Rental Payments made pursuant to
this Section 6.1 and, in the event that the Company shall have exercised the
option referred to Section 3.2(c) hereof, pursuant to Section 6.2 hereof, are
pledged for payment of the Notes pursuant to the Loan Agreement, and the
Company hereby consents to such pledge.
Section 6.2.Expanded Facilities Rentals. In the event that the Company
exercises its option to lease additional space pursuant to Section 3.2(c)
hereof, the Company agrees to pay Expanded Facilities Rentals to the
Foundation on the Date of Beneficial Occupancy of any portion of the
additional space described in Exhibit D hereto at a rate equal to the market
rental value thereof as evidenced by certificate of an independent real estate
appraiser satisfactory to the Foundation and to the Company, and thereafter on
the first day of each succeeding month, in advance, during the remaining term
of this Lease. Expanded Facilities Rentals shall be in addition to the Lease
Rental Payments otherwise payable under this Lease during the remaining term
of this Lease.
Section 6.3.Payments Under Lease in Addition to Payments Under Airport Use
Agreement.
(a)All amounts payable by the Company under this Lease shall be in addition to
any amounts payable by the Company under the Airport Use Agreement, and the
Company's obligations to make payments and its other obligations under this
Lease shall remain unconditional as provided in Section 6.4 hereof
notwithstanding any termination of, or any contrary provision of, the Airport
Use Agreement.
(b)All expenses incurred by the Company in connection with its operation and
use of the Leased Property shall be paid by the Company directly without
reduction of any other amounts payable by the Company under this Lease or
under the Airport Use Agreement, and without right of reimbursement; provided,
however, that the Company may use proceeds of insurance carried by it with
respect to the Facilities to pay costs of restoring or replacing the
Facilities in accordance with Section 9.11(b) hereof.
Section 6.4.Obligations of Company Hereunder Unconditional. The obligations
of the Company to make the payments required hereunder and to perform and
observe the other agreements on its part contained herein shall be absolute
and unconditional and, except as provided in this Lease, shall not be subject
to any defense (other than payment) or any right of set off, counterclaim,
abatement, or otherwise and, until such time as all payments under this Lease
have been paid in full, the Company (a) will not suspend or discontinue, or
permit the suspension or discontinuance of, any payments required to be paid
hereunder, (b) will perform and observe all of its other agreements contained
in this Lease, and (c) will not suspend the performance of its obligations
hereunder for any cause, including, without limiting the generality of the
foregoing, any acts or circumstances that may constitute failure of
consideration, failure of, or a defect of title to, the Facilities or any part
thereof, eviction or constructive eviction, destruction, damage or
condemnation to or of all or any part of the Facilities, commercial
frustration of purpose, any change in the tax or other laws or administrative
rulings of or administrative actions by the United States of America or the
State or any political subdivision of either, or any failure of the Foundation
to perform and observe any agreement, whether express or implied, or any duty,
liability, or obligation arising out of or connected with this Lease.
Nothing contained in this Section 6.4 shall be construed to release the
Foundation from the performance of any of the agreements on its part herein
contained; and in the event the Foundation shall fail to perform any such
agreement on its part, the Company may institute such action against the
Foundation as the Company may deem necessary to compel performance; provided,
however, that no such action shall (i) violate the agreements on the part of
the Company contained in the first paragraph of this Section 6.4, or (ii)
diminish the payments and other amounts required to be paid by the Company
hereunder. The Company may, however, at its own cost and expense and in its
own name or in the name of the Foundation (provided the Foundation is a
necessary party) prosecute or defend any action or proceeding or take any
other action involving third persons which the Company deems reasonably
necessary in order to secure or protect its rights hereunder, and in such
event the Foundation hereby agrees to cooperate fully with the Company and to
take all action necessary to effect the substitution of the Company for the
Foundation in any such action or proceeding if the Company shall so request;
provided, further, that the Foundation shall not be required to take any
action which, in the opinion of counsel to the Foundation, would be
prejudicial to the rights or interests of the Foundation in connection with
such action or proceeding or the facts giving rise thereto.
In the event the Company shall fail to make any of the payments required
hereunder, the payment so in default shall continue as an obligation of the
Company until the amount in default shall have been fully paid, and the
Company shall pay interest on any overdue principal, to the extent permitted
by law, (i) with respect to Lease Rental Payments and Expanded Facilities
Rentals, at rates one (1) percentage point higher than the rates borne by the
Notes at the time of such default, and (ii) with respect to all other payments
hereunder, at the rate specified in the Airport Use Agreement for amounts in
default thereunder or at the rate determined by reference to clause(i) of this
paragraph, whichever rate shall be higher.<PAGE>
ARTICLE VII
SPECIAL COVENANTS
Section 7.1.Financial Statements of Company. The Company agrees to furnish to
the Foundation and the Bank and all Beneficial Owners of the Notes who have
filed requests with the Company, copies of the following:
(a)Promptly after such reports are furnished to the stockholders of the
Company, Form 10-Q (or any replacement form serving a similar requirement) for
each of the first three fiscal quarters as filed with the Securities and
Exchange Commission (or a regulatory body performing a similar function) or,
in the event that the Company is no longer required to file Form 10-Q with the
Securities and Exchange Commission, within thirty (30) days of the end of each
of the first three fiscal quarters, unaudited financial statements of
operations and management's discussion of factors affecting the results of
operations similar to those contained in Form 10-Q which the Company currently
files; and
(b)Promptly after such reports are furnished to the stockholders of the
Company, Form 10-K (or any replacement form serving a similar requirement) for
the fiscal year as filed with the Securities and Exchange Commission (or a
regulatory body performing a similar function) or, in the event that the
Company is no longer required to file Form 10-K with the Securities and
Exchange Commission, within one hundred ten (110) days of the end of the
Company's fiscal year, an audited statement of consolidated financial position
and results of operations and management's discussion thereof similar to those
contained in the Form 10-K which the Company currently files.
Section 7.2.Company to Maintain its Corporate Existence; Conditions Under
Which Exceptions Permitted. The Company agrees that during the term of this
Lease it will maintain in good standing its corporate existence, will remain
duly qualified to do business in the State, will not dissolve or otherwise
dispose of all or substantially all of its assets, and will not consolidate
with or merge into another corporation; provided, however, that the Company
may, without violating the agreement contained in this Section 7.2,
consolidate with or merge into another corporation either incorporated and
existing under the laws of the State or qualified to do business in the State
as a foreign corporation, or sell or otherwise transfer to another such
corporation all or substantially all of its assets as an entirety and
thereafter dissolve; provided, further, that (i) the resulting, surviving, or
transferee corporation, as the case may be, is not "insolvent" within the
meaning of the North Carolina Uniform Commercial Code, (ii) the Foundation and
the Bank are provided with a certificate from the Chief Financial Officer of
the resulting, surviving, or transferee corporation stating that such
corporation has not ceased to pay its debts in the ordinary course of business
and can pay its debts as they become due and is not insolvent within the
meaning of the Federal bankruptcy law, (iii) the resulting, surviving, or
transferee corporation irrevocably and unconditionally assumes in writing and
agrees to perform by means of an instrument which is delivered to the
Foundation and the Bank all of the obligations of the Company herein, and (iv)
the Foundation, counsel to the Foundation, and the Bank receive an opinion of
counsel to the Company, in form and substance reasonably satisfactory to
counsel to the Foundation, to the effect that such consolidation, merger,
sale, or transfer complies with this Lease.
Section 7.3.Indemnification Covenants.
(a)The Company will pay, and will protect, indemnify, and save the Foundation
and the Bank and all Beneficial Owners of the Notes, and their respective
agents, officers, and employees, harmless from and against any and all
liabilities, losses, damages, costs, and expenses (including, without
limitation, reasonable attorneys' fees and expenses of the Company, the
Foundation, the Bank, and the agent for the Beneficial Owners of the Notes),
causes of action, suits, claims, demands, and judgments of whatsoever kind and
nature (including those arising or resulting from any injury to or death of
any person or damage to property) arising out of any of the following except
when caused by the willful misconduct or gross negligence of the Foundation or
the Bank or any Beneficial Owner of the Notes, as the case may be, or their
respective agents, officers, or employees:
(i)actions by the Company in connection with installation and equipping of the
Facilities;
(ii)the use or occupancy by the Company of the Leased Property;
(iii)violation by the Company of any agreement, representation, warranty,
covenant, or condition of this Lease or of the Airport Use Agreement;
(iv)violation by the Company of any other contract, agreement, or restriction
relating to the Leased Property; or
(v)violation by the Company of any law, ordinance, regulation, or court order
affecting the Leased Property or the ownership, occupancy, or use thereof.
The Foundation or the Bank, as the case may be, shall promptly notify the
Company in writing of any claim or action brought against the Foundation, the
Bank, or any Beneficial Owner of the Notes, as the case may be, in respect of
which indemnity may be sought against the Company hereunder, setting forth the
particulars of such claim or action; and, if such claim is a claim in respect
of which indemnification is required hereunder, the Company will assume the
defense thereof, including the employment of counsel and the payment of all
expenses. The employment of counsel by the Company is subject to the approval
of such counsel by the Foundation. The Foundation, the Bank, or the agent for
the Beneficial Owners of the Notes, as the case may be, may employ separate
counsel in any such action and participate in the defense thereof, but the
fees and expenses of such counsel shall not be payable by the Company unless
such employment has been specifically authorized by the Company.
(b)The Foundation will pay, and will protect, indemnify, and save the Company
and its agents, officers, and employees, harmless from and against any and all
liabilities, losses, damages, costs, and expenses (including, without
limitation, reasonable attorneys' fees and expenses of the Company), causes of
action, suits, claims, demands, and judgments of whatsoever kind and nature
(including those arising or resulting from any injury to or death of any
person or damage to property) arising out of any of the following except when
caused by the willful misconduct or gross negligence of the Company or its
agents, officers, or employees:
(i)actions by the Foundation in connection with installation and equipping of
the Facilities;
(ii)the use or occupancy by the Foundation of any portion of the Leased
Property;
(iii)violation by the Foundation of any agreement, representation, warranty,
covenant, or condition of this Lease; or
(iv)violation by the Foundation of any law, ordinance, regulation, or court
order affecting the Leased Property or the ownership, occupancy, or use
thereof.
The Company or the Bank, as the case may be, shall promptly notify the
Foundation in writing of any claim or action brought against the Company, the
Bank, or any Beneficial Owner of the Notes, as the case may be, in respect of
which indemnity may be sought against the Foundation hereunder, setting forth
the particulars of such claim or action; and, if such claim is a claim in
respect of which indemnification is required hereunder, the Foundation will
assume the defense thereof, including the employment of counsel and the
payment of all expenses. The employment of counsel by the Foundation is
subject to the approval of such counsel by the Company. The Company, the
Bank, or the agent for the Beneficial Owners of the Notes, as the case may be,
may employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall not be payable by the
Foundation unless such employment has been specifically authorized by the
Foundation.
The indemnities provided for in this Section 7.3 shall be independent of any
indemnities to which the Company, the Foundation, the Bank, or any Beneficial
Owner of the Notes may be entitled under the provisions of the Airport Use
Agreement, or any other agreement between or among any two or more of the
Company, the Foundation, the Bank, and any Beneficial Owner of the Notes.
Section 7.4.Taxes on Company Property. The Company shall pay and hold the
Foundation harmless from any and all personal property taxes on or in respect
of any personal property owned, leased by, or under the control of, the
Company; provided, however, that the Company, without being considered to be
in breach of this Lease, may contest the assessment or levy of any such
personal property taxes so long as such contest is diligently commenced and
prosecuted.
Section 7.5.Quiet Enjoyment. The Foundation covenants that the Company, on
performing its covenants and other obligations hereunder, shall have quiet and
peaceable possession of the Leased Property (and, in the event that the
Company exercises its option to lease additional space pursuant to Section
3.2(c) hereof, the additional space referred to in Section 3.2(c) hereof) from
the completion of the Facilities (or completion or refurbishing of such
additional space) and their acceptance for occupancy, respectively, by the
Company (the "Date of Beneficial Occupancy") to the termination of this Lease.
Such acceptance by the Company shall be deemed to be the date of issuance of
the applicable Certificate of Occupancy required to be issued by Lenoir
County.
Section 7.6.Patents and Trademarks. The Company covenants that it is the
owner of or fully authorized to use any and all services, processes, machines,
articles, marks, names, or slogans to be used by it in its operations under,
or in any way connected with, this Lease. The Company agrees to save and hold
the Foundation, and its directors, officers, employees, agents, and
representatives free and harmless of and from any loss, liability, expense,
cost, suit, or claim for damages in connection with any actual or alleged
infringement of any patent, trademark, or copyright arising from any alleged
or actual unfair competition or other similar claim arising out of the
operation of the Company under or relating to this Lease.
Section 7.7.Assignments and Subleases by Company. Except as otherwise
provided in Section 7.2 hereof, the Company shall not assign or otherwise
transfer its interest in this Lease, in whole or in part, or any right or
leasehold interest or interests granted to it by this Lease, or sublet or
otherwise transfer any interest in or to the Leased Property, without the
prior written consent of the Foundation, which consent shall not be withheld
or delayed unreasonably.
Section 7.8.Company Books and Records. The Company agrees that the auditors
for the Foundation or any of such auditors' duly authorized representatives,
until the expiration of three(3)years after the termination of this Lease,
shall have the right, at any reasonable time and at the expense of the
Foundation, to have access to and the right to examine any books, documents,
papers, and records of the Company pertinent to this Lease or to the Airport
Use Agreement. In the event that the Foundation requests to examine any such
books, documents, papers, or records of the Company which are proprietary,
such examination shall be subject to reasonable restrictions and requirements
regarding the confidentiality of such books, documents, papers, or records.
Section 7.9.United States Department of Transportation, Federal Aviation
Administration Provisions.
(a)This Lease is subject and subordinate to the terms, reservations,
restrictions, and conditions of any existing or future agreements between the
Foundation, the Airport Sponsors, or the Authority, as the case may be, and
the United States of America, the execution of which has been or may be
required as a condition precedent to the transfer of Federal rights or
property to the Foundation, the Airport Sponsors, or the Authority, as the
case may be, for airport purposes, and the expenditure of Federal funds for
the extension, expansion, or development of the Airport or the construction or
development of the Global TransPark.
(b)Without in any way derogating from the generality of the foregoing
subsection (a) of this Section 7.9, the Company:
(i)acknowledges that the Premises are subject to an Avigation Easement,
reserved by the Airport Sponsors as set forth in Exhibit F hereto;
(ii)shall make no use of the Premises, including any construction, building
activity, or other endeavor that would interfere with the use of the Airport
for public aviation purposes; the Company, and any assignee of the Company,
shall comply with 14 CFR Part 77, such that no proposed or actual use of the
Premises would contravene the safety and efficiency restrictions established
by said Regulations;
(iii)shall take no action that, directly or indirectly, would make it
impossible for the Airport Sponsors, from time to time, or their successors in
interest, to comply with the Regulations issued by, and other requirements of,
and to carry out their or its agreements with, the Federal Aviation
Administration, including, but not limited to, the Assurances found in 14 CFR
Part 152, Appendix D, set forth in Exhibit G hereto;
(iv)acknowledges that the Authority's Airport Property is subject to the
reverter retained by the Airport Sponsors in that certain North Carolina Deed
with Reverter to Grantor made the 29th day of June, 1995, by and between the
Airport Sponsors, as Grantor, and the Authority, as Grantee, being recorded in
Book 1031, at Page 96, in the office of the Register of Deeds of Lenoir
County, North Carolina, and which is set forth in Exhibit H hereto; and the
Company further acknowledges that the Premises may be used only for
aviation-related or aeronautical purposes; and the Company further
acknowledges that failure to comply with said limitation shall cause the
Premises to revert to the Airport Sponsors or their successors in interest;
(v)shall make no use of the Leased Property, nor of any portion, part, or any
unit thereof, and shall take no action that, directly or indirectly, would
cause, or threaten to cause, the Authority's Airport Property to revert to the
Airport Sponsors or their successors in interest pursuant to the reverter
referred to in subsection (iv) of this Section 7.9;
(vi)assures that it will comply with the applicable requirements of law
relating to Non-Discrimination and Airport Employment Opportunities which, for
informational purposes only, are set forth in current form in Exhibit I
hereto; and
(vii)assures that it will comply with the policy of the Department of
Transportation with respect to Disadvantaged Business Enterprises which, for
informational purposes only, is set forth in current form in Exhibit J hereto.
ARTICLE VIII
USE AND MAINTENANCE OF FACILITIES
Section 8.1.Permitted Use; Limitations Upon Use and Location. The Company
shall have the right to use the Leased Property only for the following
purposes: to provide air freight service at the Airport; to transport
property, cargo, and mail to and from the Airport by aircraft; to operate on
and from the Airport an aircraft maintenance and other aviation-related or
aeronautical businesses; and for purposes reasonably incidental thereto. The
Company, with the approval of the Foundation, may be permitted to use the
Leased Property for any additional aviation-related or aeronautical use. The
Company shall make no use, nor permit any use, of the Leased Property, or of
any portion, or unit thereof, which is not an aviation-related or aeronautical
use as such is determined by application from time to time of the criteria of
the Federal Aviation Administration, or its successor agency in function..
The Company shall not commit waste with respect to the Leased Property and
shall not commit or permit any nuisance from or upon the Leased Property. The
Company shall not remove, or permit to be removed, any portion of the
Facilities from the Premises without the prior written consent of the
Foundation except as provided in Section 8.10 hereof.
Section 8.2.Compliance with Environmental and Safety Requirements. The
Company shall comply with, and shall cause its directors, officers, employees,
and any other persons over whom it has control, to comply with the applicable
provisions set forth in ExhibitE hereto and any other regulations or rules
promulgated pursuant to applicable Federal, State, or local statute,
regulation, rule, ordinance, order, or decree, in each case, as now or
hereafter may be in effect, for the protection of human health and the
environment, and assessment, removal, or remediation of environmental
contamination or hazardous or other regulated conditions.
Section 8.3.Compliance with Airport Regulations. The Company shall comply
with, and shall cause its directors, officers, employees, and any other
persons over whom it has control, to comply with, such reasonable rules and
regulations governing the use of the Leased Property and any other portion of
the Airport as from time to time may be adopted and promulgated by the Airport
Sponsors or the Authority, as the case may be, for the management, operation,
and control of the Airport and pertaining to the operation of automobile and
vehicular traffic and parking facilities thereon, and with such reasonable
amendments, revisions, additions, and extensions thereof as from time to time
may be adopted and promulgated; provided, however, that such rules and
regulations shall not be inconsistent with the specific rights granted to the
Company herein and in the Airport Use Agreement; and provided, further, that
nothing herein shall be deemed to restrict the police power of the Airport
Sponsors or the Authority, as the case may be.
The current rules and regulations adopted and promulgated by the Airport
Sponsors are entitled "Kinston Regional Jetport - Rules & Regulations, June
21, 1994," and are attached hereto, for informational purposes only, as
Exhibit K hereto.
Section 8.4.Compliance with Other Governmental Regulations. The Company, at
all times in the operation and use, maintenance, and repair, or otherwise in
connection with its occupancy of the Leased Premises, faithfully shall obey
and comply with all existing and future laws, rules, and regulations adopted
by Federal, State, local, or other governmental bodies, including, without
limitation, the Federal Aviation Administration, and the Airport Sponsors or
the Authority, as the case may be, and applicable to or affecting the Company
and its operations and activities on and at the Airport, including, without
limitation, on, in, or upon the Leased Property; provided, however, that the
Company, without being considered to be in breach of this Lease, may contest
any such laws, rules, and regulations so long as such contest is diligently
commenced and prosecuted.
Section 8.5.No Obstruction to Air Navigation. The Company agrees that no
obstruction to air navigation, as such is determined by application from time
to time of the criteria of the Federal Aviation Administration, or its
successor agency in function, will be permitted on the Premises after the Date
of Beneficial Occupancy, and any such obstruction placed on the Premises by
the Company shall be removed by it at its own cost and expense.
Section 8.6.Utilities. The Company understands and agrees that, except as
otherwise provided in this Section 8.6, all utility services required by it
during the term of this Lease for use on the Premises or in or upon the
Facilities must be obtained and secured by the Company at its own expense.
The Foundation shall install and construct, or shall cause to be installed or
constructed, as a part of the cost of the Facilities, necessary utility lines
or mains to the Facilities; provided, however, that any future relocation of
such lines and mains shall be at the sole cost and expense of the Company.
The Foundation, on or prior to the Date of Beneficial Occupancy of the
Facilities, shall extend all necessary permanent utilities to the Leased
Property. Any power lines, cables, pipes, and the like constructed or
installed by or for the Company at all times shall conform to the height and
route limitations imposed from time to time by the Airport Sponsors or the
Authority, as the case may be, and the Federal Aviation Administration or its
successor agency in function. The Foundation shall be under no obligation to
furnish at its expense snow removal or janitorial services, or any other
service, for the Leased Property.
Section 8.7.Alterations to Leased Property. The Company, at its own cost and
expense, may install on, in, or upon the Leased Property or any part thereof
any fixture or improvement or do or make alternations, or construct additions
thereto, or do remodeling, germane to the use herein or hereafter granted, so
long as any such alternation, addition, or remodeling will not impair the
capital value or rental value thereof or structurally weaken or endanger the
Facilities, and so long as the Foundation gives prior written approval, which
approval shall not be withheld or delayed unreasonably, in the case of any
alteration, addition, or remodeling involving structural changes to the
Facilities or involving any exterior modifications either to the Facilities or
to the Premises, or to both the Facilities and the Premises. In the event any
such alternation, addition, or remodeling is made without such approval, then
upon reasonable notice so to do, the Company shall remove the same, or, at the
option of the Foundation, shall cause the same to be changed to the
satisfaction of the Foundation. In case of any failure on the part of the
Company to comply with such notice, the Foundation may effect such removal or
change and the Company shall pay the cost thereof to the Foundation. The
Company, in connection with any such installation or improvement, shall cause
to be procured Builders Risk Insurance or other appropriate liability
insurance covering the persons referred to in Section7.3 hereof and otherwise
shall indemnify them as provided for herein.
Section 8.8.Company Property. The Company from time to time, in its sole
discretion and at its own expense, may install machinery, equipment, and other
personal property on, in, or upon the Leased Property. All such personal
property so installed by the Company shall remain the sole property of the
Company and in which the Foundation shall have no interest except as otherwise
provided herein.
Notwithstanding anything herein to the contrary, any personal property
installed by the Company pursuant to this Section 8.8 shall constitute Leased
Property rather than property of the Company if such property is so affixed to
the Leased Property so as to be classified as a fixture under applicable law.
The Company shall have the right at any time during the term of this Lease,
when not in default hereunder, to remove any or all of the property installed
by the Company pursuant to this Section 8.8, at its own expense, subject to
the Company's obligation to repair, at its own expense, all damage, if any,
resulting from such removal.
Section 8.9.Disposition of Company Property at End of Lease Term. All
property installed by the Company pursuant to Section 8.8 hereof shall be
removed by the Company at its own expense by the expiration of, or within a
period not to exceed sixty (60) days after the earlier termination of the term
of, this Lease; and the Leased Property shall be surrendered as provided
herein, unless the Company shall have notified the Foundation at least one
hundred twenty (120) days prior to the date of the expiration or earlier
termination of the term of this Lease of the Company's desire not to remove
the property installed by the Company pursuant to Section 8.8 hereof, or any
portion thereof, and of its request that the Foundation accept title to such
property in lieu of its removal and restoration of the Leased Property, which
request shall describe such property with reasonable particularity, and unless
the Foundation shall have notified the Company not less than sixty (60) days
prior to such expiration or earlier termination of its willingness to accept
title to such property in lieu of its removal or restoration of the Leased
Property. The Company shall have a period not to exceed sixty (60) days after
a termination of the term of this Lease for the removal of the property
installed by the Company pursuant to Section 8.8 hereof in the case of any
termination of this Lease; provided, however, that the Company shall not be
relieved of its obligations to pay Lease Rental Payments hereunder during such
period of removal.
Section 8.10.Repair, Maintenance, and Replacement. The cost of repair,
maintenance, and any necessary replacement of the Facilities shall be borne by
the Company. The Company covenants and agrees at its expense, and without
cost or expense to the Foundation, during the term hereof, after the Date of
Beneficial Occupancy of the Facilities:
(a)that the Company shall keep the Facilities in good order and condition and
will make all necessary and appropriate repairs and replacements thereof;
provided, however, that all such property repaired, after such repair, and all
such replacement property shall be in as good operating condition as, and
shall have a value and utility at least equal to, the property so repaired or
so replaced;
(b)that the Company shall not permit rubbish, debris, waste materials, or
anything unsightly or detrimental to health, likely to create a fire hazard,
or conducive to deterioration, to remain on, in, or upon any part of the
Premises or the Facilities or to be disposed of improperly;
(c)that the Company shall provide and maintain obstruction lights and all
similar equipment or devices now or at any time required by any applicable
law, ordinance, or Federal, State, or municipal regulation; and
(d)that the Company at all times shall maintain the Facilities in accordance
with all applicable codes of the Airport Sponsors or the Authority, as the
case may be, and the maintenance standards of the Foundation, as they may be
promulgated, amended, or otherwise modified from time to time.
Section 8.11.Right to Enter, Inspect, and Make Repairs. The Foundation and
its authorized directors, officers, employees, agents, contractors,
subcontractors, and other representatives, shall have the right (at such times
as may be reasonable under the circumstances and with reasonable notice to the
Company and with as little interruption of the Company's operations as is
reasonably practicable) to enter upon the Leased Premises for the following
purposes:
(a)to make inspections of the Leased Property, or any portion, part, or unit
thereof, at reasonable intervals during regular business hours (or at any time
in case of emergency) to determine whether or not the Company has complied and
is complying with the terms and conditions of this Lease and the Airport Use
Agreement with respect to the Leased Property, or any portion, part, or unit
thereof; and
(b)to perform maintenance and make repairs and replacements in any case where
the Company is obligated but has failed to do so, after the Foundation has
given the Company reasonable notice so to do, in which event the Company shall
reimburse the Foundation for the reasonable costs thereof promptly upon
demand;
provided, however, that nothing contained in this Section 8.11 shall limit the
power of the Airport Sponsors or the Authority, as the case may be, and their
or its authorized directors, officers, employees, and agents to enter upon the
Leased Property as provided in the Airport Use Agreement, in the proper
exercise of the police power of the Airport Sponsors or the Authority, as the
case may be, or as otherwise provided by law; and, provided, further, that no
such entry by or on behalf of the Airport Sponsors or the Authority, as the
case may be, on, in, or upon the Leased Property shall cause or constitute a
termination of this Lease or be deemed to constitute an interference with the
possession thereof by the Company.
Section 8.12.Signs. The Company agrees that no signs or advertising displays
shall be erected in any manner upon or painted on, in, or upon the Premises or
the Facilities without the prior written approval of the Foundation, and that
signs identifying the Company or the Facilities will conform to reasonable
standards established by the Foundation with respect to type, size, design,
and location. Subject to such limitations, the Company may paint or erect such
sign or signs reasonably necessary to identify the Company or the Facilities,
or both.
Section 8.13.Use, Possession, or Sale of Alcoholic Beverages or Drugs. The
Company and its directors, officers, employees, agents, contractors,
subcontractors, and any other persons under its control, shall comply with the
provisions of law and the rules and regulations adopted and promulgated by the
Airport Sponsors or the Authority, as the case may be, as amended from time to
time, concerning the use, possession, or sale of alcoholic beverages or drugs.
Violation of these provisions may result in the Foundation's barring the
Company or any person from any premises or facilities owned or controlled by
the Foundation.
Section 8.14.Smoking Policy. The Company and its directors, officers,
employees, agents, contractors, subcontractors, other representatives, and any
persons under its control, shall comply with the provisions of law and the
rules and regulations adopted and promulgated by the Airport Sponsors or the
Authority, as the case may be, as amended from time to time, limiting,
restricting, or prohibiting smoking on or in the Leased Property.
Section 8.15.Security. It is understood and agreed by the Company that in
addition to the Company's responsibilities to maintain the Leased Property as
provided herein, it shall comply with the applicable provisions of the Airport
Use Agreement, and the rules and regulations adopted and promulgated by the
Airport Sponsors or the Authority, as the case may be, as amended from time to
time, providing for security of the Leased Property at a standard no less than
required and set out in Part 107 of the Federal Aviation Regulations of the
Federal Aviation Administration, as the same may be amended, from time to
time, or superseded.
It is further understood and agreed by the Company that at any time during the
term hereof, when requested in writing by the Foundation, the Company shall
provide to the Foundation copies of the security plans that are being used or
are to be used by the Company on, in, or upon all or any part of the Leased
Property; and, when requested in writing by the Foundation, the Company shall
provide the Foundation with a certificate, signed by the Authorized Company
Representative, to the effect that such security plans comply with all
provisions of law, with the Airport Use Agreement, and the rules and
regulations then in effect, adopted and promulgated by the Airport Sponsors or
the Authority, as the case may be.<PAGE>
ARTICLE IX
LOSS OF AND LIABILITIES
PERTAINING TO FACILITIES
Section 9.1.Property Insurance.
(a)Except to the extent the Facilities are insured during the construction,
acquisition, or installation by any contractors, at all times during the term
of this Lease from and after the Date of Beneficial Occupancy, the Company, at
its own cost and expense (subject to a right of contribution from the
Foundation as hereinafter set forth), shall keep the Facilities insured
against loss or damage (with a deductible not in excess of $10,000 for any one
occurrence) by fire, lightning, tornado, windstorm, hail, flood, earthquake,
explosion, riot, riot attending a strike, civil commotion, vandalism and
malicious mischief, sprinkler leakage, aircraft, vehicles, smoke, or any other
casualty, in amounts not less than one hundred percent (100%) of the
replacement value of such Facilities. The replacement value of the Facilities
shall be reestablished at intervals of not more than three (3) years,
commencing on or before the first day of December 1998, by an independent
qualified appraiser employed by the Company and approved by the Foundation.
(b)Until and unless the Company shall have exercised its option to lease
additional space pursuant to Section 3.2(c) hereof, the cost of Property
Insurance referred to in Section 9.1(a) hereof shall be apportioned between
the Company and the Foundation, or its successors and assigns, as follows:
(i)The Company shall bear that portion of such cost equal to a fraction, the
numerator of which is the number of square feet in the Facilities with respect
to which the Company has exclusive use plus its proportionate share (as
hereinafter determined) of the space allocated for the common use of the
Company and the Foundation, and the denominator of which is the total number
of square feet in the Facilities, all as shown on Exhibit B-4 hereto or as the
same may be adjusted pursuant to Section 3.2(g) hereof.
(ii)The Foundation shall bear that portion of such cost equal to a fraction,
the numerator of which is the number of square feet in the Facilities with
respect to which the Foundation has exclusive use plus its proportionate share
(as hereinafter determined) of the space allocated for the common use of the
Company and the Foundation and the denominator of which is the total number of
square feet in the Facilities, all as shown on Exhibit B-4 hereto or as the
same may be adjusted pursuant to Section 3.2(g) hereof.
(iii)The space allocated for the common use of the Company and the Foundation
shall be allocated between them in proportion to the number of square feet
allocated to each such party for their respective exclusive use as compared
with the total square footage of such areas allocated to both parties for
their respective exclusive use.
Section 9.2.Liability Insurance. At all times during the term of this Lease
from and after the Date of Beneficial Occupancy of the Facilities, the
Company, at its own cost and expense, shall provide and keep in force for the
benefit of the Company, the Foundation, the Airport Sponsors or the Authority,
as the case may be, and the Beneficial Holders of the Notes, a policy, or
policies, of insurance written on a single limit per occurrence basis of not
less than $20,000,000 for bodily injury and property damage arising from any
operation of the Company at the Airport. The Foundation may reevaluate the
reasonableness of the amounts of insurance coverage pursuant to this Section
9.2 every three (3) years, commencing on the third anniversary of the Date of
Beneficial Occupancy, and if such amounts have become inadequate to provide
the coverage intended by this Section 9.2, the Foundation may require such
additional policy amounts as necessary to provide such intended coverage.
In addition, the Company, at its own cost and expense, shall provide and keep
in force Comprehensive Automobile Liability Insurance. This insurance shall
cover owned, hired, and non-owned vehicles and shall insure against death,
bodily injury, and property damage claims in a combined single limit of not
less than $6,000,000.
Section 9.3.Waiver of Right of Recovery and Subrogation. To the extent that
insurance proceeds are actually received in satisfaction of a loss which is
required to be covered by insurance or is self-insured hereunder (with the
deductible under any policy being deemed to be self-insured), the Foundation
and the Company, respectively, hereby waive any and all rights of recovery
against each other for any loss or damage to the Leased Property or to the
contents contained therein, for loss of income on account of fire or other
casualty, or for injury sustained on the Leased Property, including the common
use areas; and each party's policies of such insurance shall contain
appropriate provisions recognizing this mutual release and waiving all rights
of subrogation by the respective insurance carriers.
Section 9.4.Payment of Insurance Proceeds. All insurance policies obtained
pursuant to Sections 9.1 and 9.2 hereof shall provide for payment of the
proceeds to the Company, the Foundation, the Airport Sponsors or the
Authority, as the case may be, and the Beneficial Holders of the Notes, as
their respective interests may appear.
Section 9.5.Continued Obligation to Pay Rentals. No loss or damage,
regardless of whether it is wholly or partially insured, shall in any way
relieve the Company of its obligation to make payments as provided in Article
VI hereof.
Section 9.6.Limitations as to Policies. The insurance policy, or policies,
required by Sections 9.1 and 9.2 hereof, and certificates of insurance
evidencing the existence thereof, shall be in form and written by a company,
or companies, approved by the Foundation, which approval shall not be withheld
or delayed unreasonably, and shall insure the Company's agreement to indemnify
the Foundation, the Airport Sponsors or the Authority, as the case may be, and
the Beneficial Holders of the Notes, as set forth in the indemnification
provisions hereof. The Foundation, the Airport Sponsors or the Authority, as
the case may be, and the Beneficial Holders of the Notes, shall be named
insureds of said insurance. Each such policy and certificate shall contain a
special endorsement stating, "This policy will not be materially changed or
altered or canceled without first giving thirty (30) days' written notice by
certified mail, return receipt requested, to the Foundation at Post Office Box
1635, Kinston, North Carolina 28503." All such policies of insurance, or
certificates of insurance, together with receipts showing payment of premiums
thereon, shall be delivered by the Company to the Foundation. The Company
shall deliver to the Foundation any renewal certificates for such insurance as
soon as possible, but in any event, prior to the expiration of any such
policies.
Section 9.7.Failure of Company to Provide Insurance. If at any time the
Company shall fail or neglect to insure the Facilities, as aforesaid, or to
deliver such policies or certificates of insurance as aforesaid, the
Foundation, after ten (10) day's written notice to the Company, may effect
such insurance by obtaining policies issued by companies satisfactory to the
Foundation. The amount of the premium or premiums paid for such insurance by
the Foundation shall be payable by the Company to the Foundation with the
installment of rent thereafter next due under the terms of this Lease, with
interest thereon at a rate of one (1) percentage point higher than the rate
borne by the Notes, from the date of payment of such premium or premiums by
the Foundation to the date of such reimbursement by the Company. The
Foundation shall not be limited in the proof of any damage which the
Foundation may claim against the Company arising out of or by reason of the
Company's failure to provide and keep in force insurance as aforesaid to the
amount of the insurance premium or premiums not paid or incurred by the
Company and which would have been payable upon such insurance, but the
Foundation shall also be entitled to recover as damages for such breach the
uninsured amount of any loss, damage, cost, and expense of suit suffered or
incurred by reason of damage to, destruction of, or liability appertaining to,
the Facilities occurring, or liability arising, during any period when the
Company shall have failed or neglected to provide insurance as aforesaid.
Section 9.8.Notification of Loss and Compliance with Policies. The Company
shall not violate the terms or prohibitions of any insurance policy herein
required to be furnished by the Company, and the Company shall promptly notify
the Foundation of any claim or loss under such insurance policies.
Section 9.9.Damage or Destruction and Restoration. In case of damage or loss
of all or any portion, part, or any unit of the Leased Property, the Company
will give prompt notice thereof to the Foundation; and, within the time
periods set forth in Section 9.10 hereof, and, except as otherwise provided in
Section 9.11 hereof, the Foundation (subject to delays beyond its control),
shall restore such portion, part, or unit of the Leased Property as nearly as
reasonably practicable to the value and condition thereof immediately prior to
such damage or destruction (with alterations, at the Company's election,
pursuant to Section 8.7 hereof), or shall replace the Facilities, in whole or
in part, with other facilities of similar utility. In the event of such
damage or destruction, the Foundation shall be entitled to use or receive
reimbursement from the proceeds of any and all property insurance policy or
policies insuring the Leased Property. Any excess proceeds, after payment, or
provision of payment, of all costs of restoration of such portion, part, or
unit of the Leased Property, or the replacement of the Facilities, in whole or
in part, as contemplated in this Section 9.9, shall be paid over to the
Company. The Company shall be obligated to provide any additional moneys
necessary for such restoration or replacement.
Section 9.10.Restoration or Replacement to be Undertaken Within Specified
Time.
(a)In case of damage or loss of any portion, part, or any unit of the
Facilities which has a restoration or replacement cost of less than twenty-
five percent (25%) of the then total restoration or replacement cost of the
Facilities, the Foundation, within ninety (90) days after such damage or loss,
shall complete the restoration or replacement described in Section 9.9 hereof.
(b)In case of damage or loss of any portion, part, or any unit of the
Facilities which has a restoration or replacement cost of twenty-five percent
(25%) or more of the then total restoration or replacement cost of the
Facilities, or in the event of any uninsured casualty, the Foundation, within
one hundred eighty (180) days after receipt by the Foundation of all required
governmental permits for such restoration and/or replacement of such damage or
loss, shall complete the restoration or replacement described in Section 9.9
hereof.
Section 9.11.Foundation's Election Not to Restore Damaged Property. In the
event of the damage or destruction of all or any portion, part, or unit of the
Leased Property to such an extent that, in the reasonable opinion of the
Foundation, the repair or replacement thereof would not be economical, the
Foundation, within one hundred twenty (120) days thereafter, may elect not to
restore or replace such portion, part, or unit of the Leased Property as
provided in Section 9.9 hereof, in which event the Company shall pay to the
Foundation an amount equal to the net proceeds of all insurance applicable
thereto. Within one hundred eighty (180) days after the Foundation elects not
to restore or replace any portion, part, or unit of the Leased Property as
provided in Section 9.9 hereof, the Foundation may raze such part, or destroy
such unit, of the Leased Property and may restore the related portion of the
Leased Property at the Company's expense as nearly as reasonably practicable
to the value and condition thereof immediately prior to the damage or
destruction of such part or unit of the Leased Property; and the Company shall
be obligated to reimburse the Foundation for the costs of such restoration
except to the extent any proceeds of insurance are available to defray such
restoration costs. There shall not be included in the computation of said one
hundred eighty (180) day period any periods during which it is impracticable
for the Foundation to proceed with such restoration because of war, strike, or
other reason beyond the reasonable control of the Foundation.
Section 9.12.Condemnation.
(a)The term "Taking," as used in this Section 9.12, shall mean the taking of
all or any portion, part, or unit of the Leased Property as a result of the
exercise of the power of eminent domain or condemnation for public or quasi-
public use or the sale of all or part of the Premises and the Facilities under
the threat of condemnation. The term "Substantial Taking," as used in this
Section 9.12, shall mean a Taking of so much of any portion, part, or unit of
the Leased Property that, in the Company's reasonable judgment, such portion,
part, or unit of the Leased Property thereafter cannot reasonably be used by
the Company for carrying on, at substantially the same level or scope, the
business theretofore conducted by the Company on, in, or with such portion,
part, or unit of the Leased Property. The term "Insubstantial Taking," as
used in this Section 9.12, shall mean a Taking such that, in the Company's
reasonable judgment, the portion, part, or unit of the Leased Property
thereafter reasonably can be used by the Company for carrying on, at
substantially the same level or scope, the business theretofore conducted by
the Company on the related portion of the Premises and such portion, part, or
unit of the Facilities. The determination by the Company of whether a Taking
is to be deemed to be a "Substantial Taking" or an "Insubstantial Taking"
shall be made as soon as practicable after a threat of condemnation becomes
known to the Company, and in any event, within thirty (30) days after such
condemnation occurs, or the determination with finality of the amount of the
Award (as hereinafter defined), whichever shall occur later.
(b)In the event of a Substantial Taking of the Leased Property, except as
otherwise hereinafter provided in this subsection (b) of Section 9.12, the
Foundation shall (i) promptly commence and complete with due diligence
(subject to delays beyond its control) the restoration or replacement of such
portion, part, or unit of the Leased Property as nearly as reasonably
practicable to the market value and condition thereof immediately prior to
such Substantial Taking, or (ii) with the consent of the Company, acquire or
construct other property and facilities of similar utility at the Airport;
provided, however, that the Foundation, within sixty (60) days after a
Substantial Taking, may elect not to restore or replace such portion, part, or
unit of the Leased Property, in which event the Foundation shall be entitled
to retain as its separate property the amount of the Award (as hereinafter
defined), and the Company shall have no claim against same. In the event of a
Substantial Taking, and upon election by the Foundation not to restore or
replace such portion, part, or unit of the Leased Property, the Lease Rental
Payments shall be abated and reduced to an amount equal to the ratio to which
the market value of the Leased Property following such Substantial Taking
bears to the total market value of the entire Leased Property immediately
prior to such Substantial Taking.
(c)In the event of an Insubstantial Taking of any portion, part, or unit of
the Leased Property, this Lease shall continue in full force and effect, and
the Foundation shall proceed forthwith to cause such portion, part, or unit of
the Leased Property to be restored as nearly as practicable to the condition
thereof immediately prior to such Insubstantial Taking; provided, however,
that the Foundation shall be required to expend funds only to the extent of
the Award (as hereinafter defined) actually received by the Foundation; and,
provided, further, that there shall be no abatement of the Lease Rental
Payments.
(d)The total award, compensation, damages, or consideration received or
receivable as a result of a Taking (the "Award") shall be paid to and be held
by the Foundation for the purposes specified herein, whether the Award shall
be made as compensation for diminution of the value of the Company's leasehold
or otherwise, and the Company hereby assigns to the Foundation all of
Company's right, title, and interest in and to any such Award. The Company
covenants and agrees to execute, immediately upon demand by the Foundation,
such documents as may be necessary, appropriate, or advisable to facilitate
collection by the Foundation of any such Award.<PAGE>
ARTICLE X
LIENS AND CLAIMS
Section 10.1.Prompt Payment of Taxes and Fees. The Company covenants and
agrees to pay promptly all lawful general taxes (other than real property
taxes on, or in respect of, the Premises or Facilities), excises, license
fees, permit fees, and utility service charges of whatever nature, applicable
to its use or occupancy of the Leased Property, and to take out and keep
current all licenses, Federal, State, or municipal, required for the conduct
of its business at, on, or in the Airport, including the Leased Property, and
further covenants and agrees not to permit any of said taxes, excises, fees,
or charges to become delinquent.
Section 10.2.Workers' Compensation Insurance. The Company covenants and
agrees at all times to maintain adequate Worker's Compensation Insurance in
accordance with any present or future State law, with an authorized insurance
company, or through the State Compensation Insurance Fund, or through an
authorized self-insurance plan approved by the State, insuring the payment of
compensation to all its employees.
Section 10.3.Mechanics' and Materialmen's Liens. The Company covenants and
agrees not to permit any mechanics', materialmen's, or any other lien to be
imposed upon the Leased Property or any other part of the Airport and
improvements thereto or thereon, or any part or parcel thereof, by reason of
any work or labor performed or materials furnished by any mechanic or
materialman (other than for work done or materials furnished under a contract
to which the Foundation is a party) with respect to the Leased Property.
Section 10.4.Prompt Payment of Other Obligations. The Company covenants and
agrees to pay promptly when due, all bills, debts, and obligations incurred by
it in connection with its operation of the Facilities or other business on the
Airport and not to permit the same to become delinquent and to suffer no lien,
mortgage, judgment or execution to be filed against the Leased Property or any
part or unit thereof which in any way will impair the rights of the Foundation
under this Lease or the rights of the Authority as owner of the fee of the
Premises.
Section 10.5.Right of Contest. The Company shall have the right upon giving
the Foundation prior notice thereof to contest any such mechanics',
materialmen's, or any other lien or encumbrance; and the Company, pending the
termination of such contest, shall not be obligated to pay, remove, or
otherwise discharge such lien or claim; provided, however, that the contest,
in the judgment of the Foundation, will not affect the possession, use, or
control of the Leased Property or the rights of the Authority. The Company
agrees to indemnify and save harmless the Foundation and the Authority and
their respective directors, officers, employees, and other agents and
representatives from any loss as a result of the Company's action as
aforesaid.
Section 10.6.Nonpayment During Contest. If the Company in good faith shall
proceed to contest any general tax, special assessment, excise, license fee,
permit fee, or other public charge or the validity thereof by proper legal
proceedings which shall operate to prevent the collection thereof or to
prevent the appointment of a receiver because of nonpayment of any such taxes,
assessments, excises, fees, or other public charges, the Company shall not be
required to pay, discharge, or remove any such tax, assessment, excise, fee,
or other public charge so long as such proceeding is pending and undisposed
of; provided, however, that the Company, not less than five (5) days before
any such tax, assessment, excise, fee, or other public charge shall become
delinquent, shall give notice to the Foundation of the Company's intention to
contest its validity; and, provided, further, that such nonpayment, in the
judgment of the Foundation, will not affect the possession, use or control of
the Leased Property or the rights of the Authority. If such notice is so
given by the Company to the Foundation and such contest is conducted in good
faith by the Company, the Foundation, pending the termination of such legal
proceedings, shall not pay, remove, or discharge such tax, assessment, excise,
fee, or other public charge. The Company agrees to indemnify and save
harmless the Foundation and the Authority and their respective directors,
officers, employees, and other agents and representatives from any loss as a
result of the Company's action as aforesaid.<PAGE>
ARTICLE XI
EVENTS OF DEFAULT AND REMEDIES
Section 11.1.Events of Default Defined. The occurrence of any one or more of
the events described in the following subsections (a) through (d) of this
Section 11.1 shall constitute a "default" for all purposes of this Lease; and
each such default, after the giving of notice, if any, passage of time, if
any, or occurrence of an event, if any, specified in the subsection describing
such default, shall constitute an "event of default" for all purposes of this
Lease:
(a)Failure by the Company to pay, within ten (10) days after written notice of
failure to pay, any Lease Rental Payments required to be paid under Section
6.1 hereof.
(b)Any material breach by the Company of any of its representations or
warranties made in this Lease, any failure by the Company to make any payment
required to be made by it hereunder or any failure by the Company to observe
and perform any of the covenants, conditions, or agreements made on its part
to be observed or performed hereunder, other than a breach, failure to pay, or
failure to observe and perform referred to in subsection (a) of this Section
11.1, for a period of thirty (30) days after written notice specifying such
breach, failure to pay, or failure to observe and perform, and requesting that
it be remedied, given to the Company by the Foundation, unless (i) the
Foundation shall agree in writing to an extension of such time prior to its
expiration, or (ii) if the breach, failure to pay, or failure to observe and
perform is such that it can be corrected but cannot be corrected within the
applicable period, corrective action is instituted by the Company within the
applicable period and is being diligently pursued.
(c)The dissolution or liquidation of the Company; the filing by the Company of
a voluntary petition in bankruptcy; the entry of an order against the Company
for relief under Title 11 of the United States Code, as the same hereafter
from time to time may be amended; the filing of a petition or answer proposing
the entry of an order for relief against the Company under Title 11 of the
United States Code, as the same hereafter from time to time may be amended, or
proposing the reorganization, arrangement or debt readjustment of the Company
under any present or future Federal bankruptcy act or any similar Federal or
State law in any court and the failure of such petition or answer to be
discharged or denied within ninety (90) days after the filing thereof; the
appointment of a custodian (including without limitation a receiver, trustee,
or liquidator of the Company) of all or a substantial part of the property of
the Company, and the failure of such custodian to be discharged within ninety
(90) days after such appointment; the taking by such custodian of possession
of the Company or a substantial part of its property, and the failure of such
taking to be discharged within ninety (90) days after such taking; the
Company's consent to or acquiescence in such appointment or taking; assignment
by the Company for the benefit of its creditors; or the entry by the Company
into an agreement of composition with its creditors. The term "dissolution or
liquidation of the Company," as used in this subsection, shall not be
construed to include the cessation of the corporate existence of the Company
resulting from a merger or consolidation of the Company into or with another
corporation or a dissolution or liquidation of the Company following a
transfer of all or substantially all of its assets, under the conditions
permitting such actions contained in Section 7.2 hereof.
(d)Any breach by the Company of any provision of the Airport Use Agreement for
a period of thirty (30) days after written notice from the Airport Sponsors or
the Authority, as the case may be, specifying such breach and requesting that
it be remedied, (i) unless the Foundation shall agree in writing to an
extension of time, or (ii) unless such breach is such that it can be corrected
but cannot be corrected within the applicable time period and corrective
action is instituted by the Company within the applicable time period and is
being diligently pursued; provided, however, that if any breach by the Company
has resulted in a termination of the Airport Use Agreement by the Airport
Sponsors or the Authority, as the case may be, in accordance with its terms,
this Lease, at the option of the Foundation, may be terminated in accordance
with Section 4.1 hereof.
The foregoing provisions of Section 11.1(b) are subject to the following
limitations: If by reason of Force Majeure, as defined in Section 11.2 hereof,
the Company is unable in whole or in part to carry out its agreements on its
part herein contained, other than the obligations on the part of the Company
contained in Section 7.3 hereof or to make any payments required hereunder,
the Company shall not be deemed in default during the continuance of such
inability. The Company agrees, however, to remedy with all reasonable
dispatch the cause or causes preventing the Company from carrying out its
agreements; provided, however, that the settlement of strikes, lockouts, and
other employment or labor disturbances shall be entirely within the discretion
of the Company and the Company shall not be required to make settlement of
strikes, lockouts, and other disturbances by acceding to the demands of the
opposing party or parties when such course is in the reasonable judgment of
the Company unfavorable to the Company.
Section 11.2.Force Majeure. The Foundation shall be excused for the period of
any delay in the performance of any obligation under this Lease and the
Company shall be excused for the period of any delay in the performance of any
non-monetary obligation hereunder when such delay is occasioned by causes
beyond the Foundation's or the Company's control, respectively, including,
without limitation, war, invasion, or other hostility; work stoppages,
boycotts, slowdowns, strikes or other labor unrest; shortages of materials,
equipment, labor, or energy; man-made or natural casualties or disasters;
unusual weather conditions; acts or omissions of governmental or other
political bodies; or riots or civil disturbances or unrest; and the period for
the performance of any such obligation shall be extended for the period of
such delay.
Section 11.3.Remedies on Default. Whenever any event of default referred to
in Section 11.1 hereof shall have occurred and be continuing, the Foundation
shall have the right, at the Foundation's election, then or at any time
thereafter, to exercise any one or more of the following remedies:
(a)The Foundation may terminate this Lease, effective at such time as may be
specified by written notice to the Company, and demand (and, if such demand is
refused, recover) possession of the Leased Property from the Company. The
Foundation, by notice in writing to the Company upon the occurrence and
continuation of an event of default described in subsection (a), (b), (c), or
(d) of Section 11.1 hereof, shall declare all Lease Rental Payments and
Expanded Facilities Rentals payable under this Lease to be due and payable
immediately; and, upon any such declaration, all remaining Lease Rental
Payments and Expanded Facilities Rentals shall become and be immediately due
and payable; provided, however, that the Foundation in good faith shall
exercise reasonable efforts to relet the Leased Property.
(b)The Company shall remain liable to the Foundation for damages in an amount
equal to the aggregate of the Lease Rental Payments, and the Expanded
Facilities Rentals (if the option to lease additional space under this Lease
has been exercised in accordance with its terms), and other sums which would
have been owing by the Company hereunder for the balance of the Lease Term had
this Lease not been terminated, less the net proceeds, if any, of any
reletting of the Premises and the Facilities by the Foundation subsequent to
such termination, after deducting all of the Foundation's expenses in
connection with such recovery of possession or reletting. The Foundation
shall be entitled to collect and receive such damages from the Company on the
days on which the Lease Rental Payments and Expanded Facilities Rentals, if
any, and other amounts would have been payable if this Lease had not been
terminated. Alternatively, at the sole option of the Foundation, the
Foundation shall be entitled to recover forthwith from the Company, as damages
for loss of the bargain and not as a penalty, an aggregate sum which, at the
time of such termination of this Lease, represents the excess, if any, of (a)
the aggregate of the Lease Rental Payments and the Expanded Facilities
Rentals, if any, and all other sums payable by the Company hereunder that
would have accrued for the balance of the Lease Term, over (b) the aggregate
market value of lease rental payments in respect of the Leased Property for
the balance of the term of this Lease.
(c)The Foundation may re-enter and take possession of the Leased Property or
any part thereof, without demand or notice, and repossess the same and expel
the Company and any party claiming by, under, or through the Company, and
remove the effects of both using such force for such purposes as may be
necessary, without being liable for prosecution on account thereof or being
deemed guilty of any manner of trespass, and without prejudice to any remedies
for arrears of rent or right to bring any proceeding for breach of covenants
or conditions. No such reentry or taking possession of the Leased Property by
the Foundation shall be construed as an election by the Foundation to
terminate this Lease unless a written notice of such intention is given to the
Company. No notice from the Foundation hereunder or under a forcible entry
and detainer statute or similar law shall constitute an election by the
Foundation to terminate this Lease unless such notice specifically so states.
The Foundation reserves the right, following any reentry or reletting, to
exercise its right to terminate this Lease by giving the Company such written
notice, in which event the Lease will terminate as specified in said notice.
After recovering possession of the Leased Property, the Foundation, from time
to time, may relet the Leased Property, or any part thereof, for such term or
terms and on such conditions and upon such other terms as the Foundation, in
its sole discretion, may determine. The Foundation may make such repairs,
alterations or improvements as the Foundation may consider necessary,
appropriate, or advisable to accomplish such reletting, and the Company shall
reimburse the Foundation upon demand for all costs and expenses, including
reasonable attorneys' fees, which the Foundation may incur in connection with
such reletting. The Foundation may collect and receive the rents for such
reletting, but the Foundation in no way shall be responsible or liable for any
failure to relet the Leased Property, or any part thereof, or for any failure
to collect any rent due upon such reletting. Notwithstanding the Foundation's
recovery of possession of the Leased Property, the Company shall continue to
pay on the dates herein specified, the rental payments payable under Article
VI hereof and other amounts which would be payable hereunder if such
repossession had not occurred. Upon the expiration or earlier termination of
this Lease, the Foundation shall refund to the Company any amount, without
interest, by which the amounts paid by the Company, when added to the net
amount, if any, recovered by the Foundation through any reletting of the
Leased Property, exceeds the aggregate amount of the amounts payable as Lease
Rental Payments and the Expanded Facilities Rentals, if any, by the Company
under this Lease. If, in connection with any reletting, the new lease term
extends beyond the existing term, or the premises and/or facilities covered
thereby include other premises and/or facilities not part of the Leased
Property, a fair apportionment of the rent received from such reletting of the
Leased Property and the expenses incurred in connection therewith will be made
in determining the net amount recovered from such reletting.
(d)The Foundation may take whatever action at law or in equity may appear
necessary, appropriate, or advisable to collect the payments and other amounts
then due and thereafter to become due hereunder or to enforce performance and
observance of any obligation, agreement, or covenant of the Company under this
Lease.
(e)To the extent that any event of default referred to in Section 11.1(b)
hereof shall have resulted from the failure on the part of the Company to
observe or perform any covenant, condition, or agreement on its part to be
observed or performed pursuant to the provisions of this Lease, the Foundation
shall be entitled in its own name and for its own account, to the exclusion of
or in addition to any exercise by the Foundation of any other remedy provided
for in this Lease or now or hereafter existing at law, in equity, or by
statute, to institute such action against the Company as the Foundation may
deem necessary, appropriate, or advisable to compel performance or observance
of such covenant, condition, or agreement or to recover damages for the
Company's nonperformance or nonobservance of the same.
No action taken pursuant to this Section 11.3 shall relieve the Company from
the Company's obligations to make any payments required to be made by it
hereunder.
Section 11.4.No Remedy Exclusive. No remedy herein conferred upon or reserved
to the Foundation is intended to be exclusive of any other available remedy or
remedies, but each and every such remedy shall be cumulative and shall be in
addition to every other remedy given under this Lease or now or hereafter
existing at law, in equity, or by statute. No delay or omission to exercise
any right or power accruing upon any event of default shall impair any such
right or power or shall be construed to be a waiver thereof, but any such
right and power may be exercised from time to time and as often as may be
deemed expedient. In order to entitle the Foundation to exercise any remedy
reserved to it in this Article XI, it shall not be necessary to give any
notice other than such notice as may be herein expressly required. Such
rights and remedies as are given the Foundation under Section 11.3 of this
Lease shall also extend to the Bank or agent for the Beneficial Holders of the
Notes, and the Bank or such agent shall be entitled to the benefit of the
covenants and agreements herein contained.
Section 11.5.Agreement to Pay Fees and Expenses of Counsel. In the event the
Company defaults under any of the provisions of this Lease and the Foundation
or the Bank or agent for the Beneficial Holders of the Notes employs counsel
or incurs other expenses for the collection of the amounts due hereunder or
the enforcement or performance or observance of any obligation or agreement on
the part of the Company herein contained, the Company agrees that on demand
therefor it will pay to the Foundation or to the Bank or agent for the
Beneficial Holders of the Notes, the reasonable and actual fees of such
counsel and such other actual expenses so incurred by or on behalf of the
Foundation or the Bank or agent for the Beneficial Holders of the Notes.
Section 11.6.No Additional Waiver Implied by One Waiver; Consents to Waivers.
In the event any agreement contained in this Lease should be breached by
either party and thereafter waived by the other party, such waiver shall be
limited to the particular breach so waived and shall not be deemed to waive
any other breach hereunder. No waiver shall be effective unless it is in
writing and signed by the party making the waiver.<PAGE>
ARTICLE XII
MISCELLANEOUS
Section 12.1.Notices. All notices, certificates, or other communications
hereunder shall be sufficiently given and shall be deemed given to the parties
required hereunder to receive such notice, certificate or communication when
mailed by registered or certified mail, postage prepaid, addressed as follows:
If to the Foundation:Global TransPark Foundation, Inc.
Post Office Box 1635
Kinston, North Carolina 28506
Attention:President
with copy to:William T. Powell, Jr.
Assistant Secretary
Global TransPark Foundation, Inc.
c/o North Carolina Global TransPark Authority
Post Office Box 27406
Raleigh, North Carolina 27611-7406
with copy to:David L. Ward, Jr., Esq.
Post Office Box 867
New Bern, North Carolina 28563-0867
If to the Company:Mountain Air Cargo, Inc.
Post Office Box 488
Denver, North Carolina 28037
Attention: Vice President and
Treasurer
with copy to:Thomas B. Henson, Esq.
Robinson, Bradshaw & Hinson, P.A.
101 North Tryon Street, Suite 1900
Charlotte, North Carolina 28246-1900
With copy to the Bank:Branch Banking and Trust Company
Post Office Box 728
Kinston, North Carolina 28503
Attention: City Executive
A duplicate copy of each notice, certificate, or other communication given
hereunder by either the Foundation or the Company to the other shall also be
given to the Bank. The Foundation, the Company, and the Bank, by notice given
hereunder, may designate any further or different addresses to which
subsequent notices, certificates, or other communications shall be sent. No
notice need be given to any party listed in this Section 12.1 if such party is
no longer a party to the transactions contemplated by this Lease.
Section 12.2.No Personal Liability. No director, officer, employee, or other
agent of either party shall be personally liable under or in connection with
this Lease.
Section 12.3.No Limitation on Previous Agreements. It is expressly understood
that the terms and provisions of this Lease in no way shall affect or impair
the terms, obligations, or conditions of any existing or prior agreement
between the Foundation and the Company.
Section 12.4.Binding Effect. This Lease shall inure to the benefit of and
shall be binding upon the Foundation, the Company, and their respective
successors and permitted assigns; and any reference to a party in this Lease
also shall be deemed to be a reference to a successor or a permitted assign.
Section 12.5.Assignment. This Lease, together with all rights and privileges
hereunder, is fully assignable by the Foundation either prior or subsequent to
any work to be carried out in connection with the acquisition, construction,
and equipping of the Premises and the Facilities, and any assignee of the
Foundation shall acquire all right, title, and interest of the Foundation
hereunder. Except as provided in Section 7.2 hereof, none of the rights,
privileges, or obligations of the Company may be assigned without the prior
written consent of the Foundation, which consent shall not be withheld or
delayed unreasonably.
Section 12.6.Third Parties. This Lease does not, and shall not be deemed or
construed to, confer upon or grant to any third party or parties (except (i)
the Airport Sponsors or the Authority as successor to the Airport Sponsors, as
the case may be, (ii) any successor to or assignee of the Foundation, (iii)
any successor to the Company or any parties to whom the Company may assign
this Lease in accordance with Section 7.2 hereof, (iv) the Beneficial Holders
of the Notes, from time to time, outstanding, (v) the Bank or agent for the
Beneficial Holders of the Notes, and (vi) the Authority to the extent that the
Authority is a beneficiary of the rights provided under Section 12.18 hereof)
any right to claim damages or to bring any suit, action, or other proceeding
against either the Foundation or the Company because of any breach hereof or
because of any of the terms, covenants, and conditions herein contained.
Section 12.7.Attachments. All Exhibits to this Lease hereby are incorporated
into this Lease and made a part hereof as if set out in full where reference
is made thereto.
Section 12.8.Numbers; Gender; Captions; Capitalized Terms; Certain
Definitions. Whenever the context so requires, the singular numbers shall
include the plural and the plural shall include the singular, and the gender
of any pronoun shall include the other genders. Titles and captions of or in
this Lease are inserted only as a matter of convenience and for reference and
in no way define, limit, extend, or describe the scope of this Lease or the
intent of any provision of this Lease. The parties hereto agree to all
capitalized terms used as definitions in this Lease and to the definitions and
the interpretation and construction rules set forth in Article I hereof.
Section 12.9.Further Assurances. The Foundation and the Company both agree
that, from time to time, they shall execute and deliver such further
instruments and take such further actions as reasonably may be required to
carry out the purposes of this Lease.
Section 12.10.Dispute Resolution; Mediation. The parties hereto shall attempt
in good faith to resolve any controversy or claim arising out of or relating
to this Lease promptly by negotiations between the parties or through
mediation as provided in this Section 12.10.
(a)If a controversy or claim should arise, William T. Powell, Jr. of the
Foundation (the "Authorized Foundation Representative") and J. Hugh Bingham of
the Company (the "Authorized Company Representative"), or their respective
successors in the positions they now hold (the "Authorized Foundation
Representative" and the "Authorized Company Representative" are hereinafter
sometimes referred to collectively as the " Authorized Representatives"), will
meet at least once and will attempt to resolve the matter. Either Authorized
Representative may request the other to meet within fourteen (14) days for
this purpose at a mutually agreed time and place.
(b)If the matter has not been resolved within twenty (20) days of their first
meeting, the Authorized Representatives shall refer the matter to senior
executives, who shall have authority to settle the dispute (the "Senior
Executives"). For purposes of this Lease, the term "Senior Executives" shall
mean: (i) with respect to the Foundation, an officer or director of the
Foundation recognized or designated as senior to the Authorized Foundation
Representative, and (ii) with respect to the Company, a vice president or
higher ranking executive of the Company recognized or designated by the
Company as senior to the Authorized Company Representative. Thereupon, the
Authorized Representatives promptly shall prepare and exchange memoranda
stating the issues in dispute and their positions, summarizing the
negotiations which have taken place, and attaching relevant documents. The
Senior Executives shall meet for negotiations within fourteen (14) days of the
end of the twenty (20) day period referred to above, at a mutually agreed time
and place.
(c)If the matter has not been resolved within thirty (30) days of the meeting
of the Senior Executives, the parties shall attempt in good faith to resolve
the controversy or claim in accordance with the Center for Public Resources
Model Procedure for Mediation of Business Disputes (Revised 1991) or such
other mediation procedures to which the parties mutually agree.
(d)If the matter has not been resolved pursuant to the aforesaid mediation
procedure within sixty (60) days of the commencement of such procedure, or if
either party will not participate in mediation, either party may initiate
litigation.
(e)All periods of time specified in this Section 12.10 may be extended by
mutual agreement.
(f)The procedures specified in this Section 12.10 shall be the sole and
exclusive procedures for the resolution of disputes between the parties
arising out of or relating to this Lease; provided, however, that a party may
seek a preliminary injunction or other preliminary judicial relief if, in its
sole judgment, such action is necessary to avoid irreparable damage. Despite
such action, the parties shall continue to participate in good faith in the
procedures specified in this Section 12.10. All applicable statutes of
limitation shall be tolled while the procedures specified in this Section
12.10 are pending. The parties shall take such action, if any, required to
effectuate such tolling.
Section 12.11.Governing Law; Venue. This Lease shall be performed in the
State and the Foundation and the Company agree, notwithstanding the principles
of conflicts of law, that the internal laws of the State shall govern and
control the validity, interpretation, performance, and enforcement of this
Lease. Further, the Foundation and the Company agree that any action relating
to this Lease shall be instituted and prosecuted in the courts of Lenoir
County; and the Foundation and the Company each consent to the jurisdiction of
said courts and waive any right or defense relating to such jurisdiction and
venue.
Section 12.12.Integration. This Lease (which includes the Exhibits hereto)
supersedes all prior negotiations, agreements, and understandings between the
parties hereto with respect to the subject matter hereof, including, without
limitation, all prior negotiations, agreements, and understandings, by,
between, or among the parties hereto, the Airport Sponsors, and/or the
Authority, with respect to the subject matter hereof; and this Lease (which
includes the Exhibits hereto) constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof.
Section 12.13.Amendments, Changes and Modifications. This Lease may not be
amended, changed, modified, altered, or terminated by the Foundation and/or
the Company except as provided for herein or by an agreement in writing signed
by both the Foundation and the Company and accepted by the Bank or the agent
for the Beneficial Holders of the Notes.
Section 12.14.Severability. In the event that any provision of this Lease
shall be held invalid or unenforceable by any court of competent jurisdiction,
such holding shall not invalidate or render unenforceable any other provision
hereof; but this Lease shall remain in full force and effect and shall be
construed and enforced as if such invalid or unenforceable provision had not
been contained herein.
Section 12.15.Partial Invalidity. In the event that any court of competent
jurisdiction shall determine that any term or provision, or any part thereof,
of this Lease is in violation of law, for any reason, then this Lease,
excluding such term, provision, or part thereof determined to be in violation
of law, shall be deemed to be the agreement of the parties hereto.
Section 12.16.Multiple Counterparts. This Lease may be executed in any number
of counterparts, each of which shall be regarded for all purposes as an
original, and all such counterparts shall constitute but one and the same
instrument; and the parties hereto, severally, acknowledge receipt of one such
counterpart, agree that the counterparts hereof are identical, and further
agree that any counterpart shall be admissible in any proceeding, legal or
otherwise, without the production of any other such counterpart.
Section 12.17.Benefit of and Enforcement by the Bank or Agent for the
Beneficial Holders of the Notes. The Foundation and the Company agree that
this Lease is executed in part to induce the loan by the Bank evidenced by the
Notes and for the further securing of the Notes and, accordingly, all
covenants and agreements on the part of the Foundation and the Company as to
the amounts payable hereunder hereby are declared to be for the benefit of the
Beneficial Holders of the Notes and may be enforced by or on behalf of the
Bank or agent for the Beneficial Holders of the Notes.
Section 12.18.Nondisturbance and Attornment. Anything in this Lease to the
contrary notwithstanding, in the event that the Foundation's Leasehold is
terminated for any reason whatsoever, including, without limitation, default
under the Long-Term Lease, the Loan Agreement, or any document executed by the
Foundation in connection with the Loan Agreement, the Company agrees to
recognize the successor to the Foundation, including, without limitation, the
Authority, as landlord under this Lease; and the Company shall make all
payments to such successor, including, without limitation, the Authority, and
shall perform all its obligations hereunder to the same extent as if such
successor, including, without limitation, the Authority, were the named lessor
herein. The provisions of this Section 12.18 are being made for the benefit
of the Authority, the Bank, and the Beneficial Holders of the Notes and may
not be amended, changed, modified, altered, or terminated by the Foundation
and/or the Company without the consent of the Authority and the Bank or agent
for the Beneficial Holders of the Notes.
Section 12.19.Memorandum of Lease.
(a)This Lease shall not be recorded except upon the express written consent of
both the Foundation and the Company, and a memorandum of lease substantially
in the form in Exhibit L hereto shall be utilized for recording. The parties
hereto recognize and agree that, following the Date of Beneficial Occupancy,
an amended memorandum of lease, substantially in the form of Exhibit L hereto,
shall be prepared and filed to record the actual dates of commencement and
termination of this Lease.
(b)In the event of termination of this Lease prior to the date of termination
indicated in the aforesaid memorandum of lease or amended memorandum of lease,
the Company shall make, execute, and deliver to the Foundation immediately
upon request therefor an instrument in proper form for recordation in the
office where the aforesaid memorandum of lease or amended memorandum of lease
is recorded evidencing such termination. In the event that the Company shall
not make, execute, and deliver such instrument to the Foundation, the Company
shall be responsible for and hereby agrees to pay to the Foundation the
reasonable and actual attorneys' fees and other actual costs incurred by the
Foundation in taking such legal action as the Foundation may deem to be
necessary, appropriate, or advisable to obtain confirmation of record by
judicial action or otherwise of the termination of this Lease as well as in
enforcing collection of such fees and costs.
IN WITNESS WHEREOF, the Foundation and the Company have caused this Lease to
be executed in their respective corporate names by their respective Presidents
or Vice Presidents, and attested by their respective Secretaries or Assistant
Secretaries, and their respective corporate seals to be affixed hereunto, all
by order of their respective Boards of Directors first duly given, and with
the intent to be legally bound thereby, all done as of the day and year first
above written.
GLOBAL TRANSPARK FOUNDATION, INC.
By:C. FELIX HARVEY
C. Felix Harvey
President
ATTEST:
WILLIAM T. POWELL, JR.
William T. Powell, Jr.
Assistant Secretary
[CORPORATE SEAL]
MOUNTAIN AIR CARGO, INC.
By:J. HUGH BINGHAM
J. Hugh Bingham
Executive Vice President
ATTEST:
JOHN J. GIOFFRE
John J. Gioffre
Secretary
[CORPORATE SEAL]<PAGE>
STATE OF NORTH CAROLINA
COUNTY OF LENOIR
I, ANNE C. STAPLEFORD , a Notary Public in and for said
County and State, do hereby certify that on the 16TH day of NOV. , 1995,
before me personally appeared C. FELIX HARVEY with whom I am personally
acquainted, who, being by me duly sworn, says that he is President and that
WILLIAM T. POWELL, JR. is an Assistant Secretary of GLOBAL TRANSPARK
FOUNDATION, INC., the corporation described in and which executed the
foregoing instrument; that he knows the common seal of said corporation; that
the seal affixed to the foregoing instrument is said common seal; that the
name of the corporation was subscribed thereto by said President; that said
President and said Assistant Secretary subscribed their names thereto and said
common seal was affixed, all by order of the Board of Directors of said
corporation; and that said instrument is the act and deed of said corporation.
WITNESS my hand and notarial seal, this the 16TH day of NOVEMBER , 1995.
ANNE C. STAPLEFORD
Notary Public
ANNE C. STAPLEFORD
(Printed Signature)
My Commission Expires: MY COMMISSION EXPIRES 7/14/98
[Notarial Seal]
<PAGE>
STATE OF NORTH CAROLINA
COUNTY OF LINCOLN
I, JOY S. HANSLEY , a Notary Public in and for said
County and State, do hereby certify that on the 9 day of NOV. , 1995,
before me personally appeared J. HUGH BINGHAM with whom I am personally
acquainted, who, being by me duly sworn, says that he is Executive Vice
President and that JOHN J. GIOFFRE is Secretary of MOUNTAIN AIR CARGO, INC.,
the corporation described in and which executed the foregoing instrument; that
he knows the common seal of said corporation; that the seal affixed to the
foregoing instrument is said common seal; that the name of the corporation was
subscribed thereto by said Executive Vice President; that said Executive Vice
President and said Secretary subscribed their names thereto and said common
seal was affixed, all by order of the Board of Directors of said corporation;
and that said instrument is the act and deed of said corporation.
WITNESS my hand and notarial seal, this the 9 day of NOVEMBER ,
1995.
JOY S. HANSLEY
Notary Public
JOY S. HANSLEY
(Printed Signature)
My Commission Expires: 4/4/2000
[Notarial Seal]
92-0476(L)-WSMAIN/123905.21<PAGE>
EXHIBIT A
to
PREMISES AND FACILITIES LEASE
between
Global TransPark Foundation, Inc.
and
Mountain Air Cargo, Inc.
Dated as of November 16, 1995
______________________
Survey Map Showing the Premises
<PAGE>
EXHIBIT A-A
to
PREMISES AND FACILITIES LEASE
between
Global TransPark Foundation, Inc.
and
Mountain Air Cargo, Inc.
Dated As of November 16, 1995
______________________________________________________________________________
_
Parcel A
All that certain tract or parcel of land lying and being situate in Vance
Township, Lenoir County, North Carolina, being described more particularly as
follows:
Beginning at a point in the centerline of John Mewborne Road (NCSR 1581)
marked by an existing iron pipe, which point is located the following course
and distance from North Carolina Geodetic Survey Monument "Vacant 1967," said
monument having North Carolina Grid Coordinates of N = 577,680.609 and E =
2,416,154.505: North 24 47' 22" East 1010.23 feet. Thence from said point of
beginning so located, North 49 41' 53" West 221.38 feet to a point; thence
North 22 26' 30" West 37.93 feet to a point; thence North 40 18' 06" East
137.67 feet to a point; thence South 29 18' 43" East 102.92 feet to a point;
thence North 85 18' 10" East 49.38 feet to a point; thence South 49 41' 53"
East 25.08 feet to a point; thence North 40 18' 10" East 14.39 feet to a
point; thence South 49 41' 59" East 29.09 feet to a point; thence along and
with a curve to the right having a delta angle of 20 30' 00", a radius of
149.00 feet, a tangent of 26.94 feet, and an arc length of 53.31 feet, a chord
bearing and distance of South 39 26' 57" East 53.03 feet to a point; thence
South 29 12' 04" East 20.88 feet to a point; thence along and with a curve to
the right having a delta angle of 90 31' 10", a radius of 40.00 feet, a
tangent of 40.36 feet, and an arc length of 63.19 feet, a chord bearing and
distance of South 16 03' 31" West 56.82 feet to a point; thence South 28 40'
52" East 12.00 feet to a point in the centerline of John Mewborne Road; thence
along and with the centerline of John Mewborne Road South 61 19' 08" West
102.45 feet to the point of beginning.<PAGE>
EXHIBIT A-B
to
PREMISES AND FACILITIES LEASE
between
Global TransPark Foundation, Inc.
and
Mountain Air Cargo, Inc.
Dated As of November 16, 1995
______________________________________________________________________________
_
Parcel B
All that certain tract or parcel of land lying and being situate in Vance
Township, Lenoir County, North Carolina, being described more particularly as
follows:
Beginning at a point in the centerline of John Mewborne Road (NCSR1581), which
point is located the following courses and distances from North Carolina
Geodetic Survey Monument "Vacant1967," said monument having North Carolina
Grid Coordinates of N=577,680.609 and E=2,416,154.505: North 24 47' 22" East
1010.23feet and North 61 19' 08" East 102.45feet. Thence from said point of
beginning so located, North 28 40' 52" West 12.00feet to a point; thence along
and with a curve to the left having a delta angle of 90 31' 10", a radius of
40.00feet, a tangent of 40.36feet, and an arc length of 63.19feet, a chord
bearing and distance of North 16 03' 31" East 56.82feet to a point; thence
North 29 12' 04" West 20.88feet to a point; thence along and with a curve to
the left having a delta angle of 20 30' 00", a radius of 149.00feet, a tangent
of 26.94feet, and an arc length of 53.31feet, a chord bearing and distance of
North 39 26' 57" West 53.03feet to a point; thence North 49 41' 59" West
29.09feet to a point; thence South 40 18' 10" West 14.39feet to a point;
thence North 49 41' 53" West 25.08feet to a point; thence South 85 18' 10"
West 49.38feet to a point; thence North 29 18' 43" West 102.92feet to a point;
thence North40 18' 06" East 416.96feet to a point; thence South 49 41' 52"
East 183.17feet to a point; thence South 40 18' 06" West 37.00feet to a point;
thence South 49 42' 08" East 14.33feet to a point; thence South 40 18' 06"
West 100.04feet to a point; thence South 49 41' 45" East 15.00feet to a point;
thence South 40 18' 06" West 34.92feet to a point; thence North 49 41' 53"
West 15.00feet to a point; thence South 40 18' 06" West 100.04 feet to a
point; thence North 49 41' 53" West 47.50feet to a point; thence South 40 18'
09" West 80.50feet to a point; thence along and with a curve to the left
having a delta angle of 89 59' 49", a radius of 25.00feet, a tangent of
25.00feet, and an arc length of 39.27feet, a chord bearing and distance of
South 04 41' 54" East 35.36feet to a point; thence South 49 41' 54" East
10.57feet to a point; thence along and with a curve to the right having a
delta angle of 20 20' 16", a radius of 175.00feet, a tangent of 31.65feet, and
an arc length of 62.61feet, a chord bearing and distance of South 39 26' 57"
East 62.28feet to a point; thence South 29 11' 57" East 21.84feet to a point;
thence along and with a curve to the left having a delta angle of 89 28' 56",
a radius of 40.00feet, a tangent of 39.64feet, and an arc length of 62.47feet,
a chord bearing and distance of South 73 56' 21" East 56.31feet to a point;
thence South 28 40' 52" East 12.00 feet to a point in the centerline of John
Mewborne Road; thence along and with the centerline of John Mewborne Road
South 61 19' 08" West 106.00 feet to the point of beginning.<PAGE>
EXHIBIT A-C
to
PREMISES AND FACILITIES LEASE
between
Global TransPark Foundation, Inc.
and
Mountain Air Cargo, Inc.
Dated As of November 16, 1995
______________________________________________________________________________
_
Parcel C
All that certain tract or parcel of land lying and being situate in Vance
Township, Lenoir County, North Carolina, being described more particularly as
follows:
Beginning at a point in the centerline of John Mewborne Road (NCSR1581), which
point is located the following courses and distances from North Carolina
Geodetic Survey Monument "Vacant1967," said monument having North Carolina
Grid Coordinates of N=577,680.609 and E= 2,416,154.505: North 24 47' 22" East
1010.23feet and North 61 19' 08" East 208.45 feet. Thence from said point of
beginning so located, North 28 40' 52" West 12.00feet to a point; thence along
and with a curve to the right having a delta angle of 89 28' 56", a radius of
40.00feet, a tangent of 39.64feet, and an arc length of 62.47feet, a chord
bearing and distance of North 73 56' 21" West 56.31feet to a point; thence
North 29 11' 57" West 21.84feet to a point; thence along and with a curve to
the left having a delta angle of 20 20' 16", a radius of 175.00feet, a tangent
of 31.65feet, and an arc length of 62.61feet, a chord bearing and distance of
North 39 26' 57" West 62.28feet to a point; thence North 49 41' 54" West
10.57feet to a point; thence along and with a curve to the right having a
delta angle of 89 59' 49", a radius of 25.00feet, a tangent of 25.00feet, and
an arc length of 39.27feet, a chord bearing and distance of North 04 41' 54"
West 35.36feet to a point; thence North 40 18' 09" East 80.50feet to a point;
thence South 49 41' 53" East 47.50feet to a point; thence North 40 18' 06"
East 100.04feet to a point; thence South 49 41' 53" East 15.00feet to a point;
thence North 40 18' 06" East 34.92feet to a point; thence North 49 41' 45"
West 15.00feet to a point; thence North 40 18' 06" East 100.04 feet to a
point; thence North 49 42' 08" West 14.33feetto a point; thence North 40 18'
06" East 37.00feet to a point; thence South 49 41' 52" East 239.57feet to a
point; thence along and with a curve to the right having a delta angle of 111
52' 48", a radius of 30.00feet, a tangent of 44.38feet, and an arc length of
58.58feet, a chord bearing and distance of South 06 14' 38" West 49.71feet to
a point; thence South 27 48' 52" East 12.00 feet to a point in the centerline
of John Mewborne Road; thence along and with the centerline of John Mewborne
Road South 62 11' 08" West 271.16 feet to a point in the centerline of John
Mewborne Road marked by an existing iron pipe; thence continuing along and
with the centerline of John Mewborne Road South 61 19' 08" West 85.85feet to
the point of beginning.<PAGE>
EXHIBIT A-D
to
PREMISES AND FACILITIES LEASE
between
Global TransPark Foundation, Inc.
and
Mountain Air Cargo, Inc.
Dated As of November 16, 1995
______________________________________________________________________________
_
Parcel D
All that certain tract or parcel of land lying and being situate in Vance
Township, Lenoir County, North Carolina, being described more particularly as
follows:
Beginning at a point in the centerline of John Mewborne Road (NCSR1581), which
point is located the following courses and distances from North Carolina
Geodetic Survey Monument "Vacant1967," said monument having North Carolina
Grid Coordinates of N=577,680.609 and E= 2,416,154.505: North 24 47' 22" East
1010.23feet, North 61 19' 08" East 294.30feet, and North 62 11' 08" East
363.84feet. Thence from said point of beginning so located, North 27 48' 52"
West 12.00feet to a point; thence along and with a curve to the right having a
delta angle of 68 07' 15", a radius of 30.00feet, a tangent of 20.28feet, and
an arc length of 35.67feet, a chord bearing and distance of North 83 45' 28"
West 33.60feet to a point; thence North 49 41' 52" West 260.16feet to a point;
thence North 40 18' 05" East 367.02feet to a point; thence South 49 41' 53"
East 440.80feet to a point in the centerline of John Mewborne Road marked by a
new iron pipe; thence along and with the centerline of John Mewborne Road
South 62 11' 08" West 380.06feet to the point of beginning.<PAGE>
EXHIBIT A-E
to
PREMISES AND FACILITIES LEASE
between
Global TransPark Foundation, Inc.
and
Mountain Air Cargo, Inc.
Dated As of November 16, 1995
______________________________________________________________________________
_
Parcel E
All that certain tract or parcel of land lying and being situate in Vance
Township, Lenoir County, North Carolina, being described more particularly as
follows:
Beginning at a point in the centerline of John Mewborne Road (NCSR1581), which
point is located the following courses and distances from North Carolina
Geodetic Survey Monument "Vacant1967," said monument having North Carolina
Grid Coordinates of N=577,680.609 and E=2,416,154.505: North 24 47' 22" East
1010.23feet, North 61 19' 08" East 294.30feet, and North 62 11' 08" East
271.16feet. Thence from said point of beginning so located, North 27 48' 52"
West 12.00feet to a point; thence along and with a curve to the left having a
delta angle of 111 52' 48", a radius of 30.00feet, a tangent of 44.38feet, and
an arc length of 58.58feet, a chord bearing and distance of North 06 14' 38"
East 49.71 feet to a point; thence North 49 41' 52" West 422.74feet to a
point; thence North 40 18' 06" East 26.00feet to a point; thence South 49 41'
52" East 457.28feet to a point; thence along and with a curve to the left
having a delta angle of 68 07' 15", a radius of 30.00feet, a tangent of
20.28feet, and an arc length of 35.67feet, a chord bearing and distance of
South 83 45' 28" East 33.60feet to a point; thence South 27 48' 52" East
12.00feet to a point in the centerline of John Mewborne Road; thence along and
with the centerline of John Mewborne Road South 62 11' 08" West 92.68feet to
the point of beginning.<PAGE>
EXHIBIT B
to
PREMISES AND FACILITIES LEASE
between
Global TransPark Foundation, Inc.
and
Mountain Air Cargo, Inc.
Dated as of November 16, 1995
______________________
References to Specifications and Drawings<PAGE>
EXHIBIT B-1
to
PREMISES AND FACILITIES LEASE
between
Global TransPark Foundation, Inc.
and
Mountain Air Cargo, Inc.
Dated As of November 16, 1995
______________________
First Floor Plan/
Dimensioned Plan
Project Number 2518.000 Date 4.10.95
Sheet Number A2.01.1
Odell Associates, Inc. Charlotte, NC<PAGE>
EXHIBIT B-2
to
PREMISES AND FACILITIES LEASE
between
Global TransPark Foundation, Inc.
and
Mountain Air Cargo, Inc.
Dated As of November 16, 1995
______________________
Second Floor Plan/
Dimensioned Plan
Project Number 2518.000 Date 4.10.95
Sheet Number A2.03.1
Odell Associates, Inc. Charlotte, NC<PAGE>
EXHIBIT B-3
to
PREMISES AND FACILITIES LEASE
between
Global TransPark Foundation, Inc.
and
Mountain Air Cargo, Inc.
Dated As of November 16, 1995
______________________
Mezzanine Floor Plan/
Dimensioned Plan
Project Number 2518.000 Date 4.10.95
Sheet Number A2.04.1
Odell Associates, Inc. Charlotte, NC<PAGE>
EXHIBIT B-4
to
PREMISES AND FACILITIES LEASE
between
Global TransPark Foundation, Inc.
and
Mountain Air Cargo, Inc.
Dated As of November 16, 1995
______________________
NCGTP-Mountain Air Cargo Hangar
Square Footage Calculation
24-Aug-95
Total Common MAC NCGTP
Ground Floor Area Area
Hangar/Offices/Shop 46,647.5 456 46,191.5 0
Door Pockets 1,131.5 0 1,131.5 0
Entrance Lobby-including Elev.,
Elev. Machine Rm., Stair #2 525 525 0 0
Sub-Total 48,304 981 47,323.0 -
Second Floor
Offices/Classrooms/Others 13,513 1,697.0 6,015.0 5,801.0
Mezzanine**
Stairs/Corridor/Mechanical 2,700 900 0 1,800
Storage
Total 64,517 3,578.0 53,338.0 7,601.0
5.55% 82.67% 11.78% 100%
**Note: There is an additioanl 10,000 SF on the mezzanine level which is
available for lease as storage space.
<PAGE>
EXHIBIT C
to
PREMISES AND FACILITIES LEASE
between
Global TransPark Foundation, Inc.
and
Mountain Air Cargo, Inc.
Dated As of November 16, 1995
______________________
Additional Parcel Subject to Right of First Refusal
Parcel G
All that certain tract or parcel of land lying and being situate in Vance
Township, Lenoir County, North Carolina, being described more particularly as
follows:
Beginning at a point which is located the following courses and distances from
North Carolina Geodetic Survey Monument "Vacant1967," said monument having
North Carolina Grid Coordinates of N=577,680.609 and E=2,416,154.505: North
24 47' 22" East 1,010.23feet, North 61 19' 08" East 294.30feet, North 62 11'
8" East 743.91feet and North 49 41' 53" West 440.80feet to the point of
beginning. Thence from this point of beginning so located continuing North 49
41' 53" West 197.11feet to a point; thence South 40 18' 06" West 185.01 Feet
to a point; thence South 49 41' 52" East 197.12feet to a point; thence North
40 18' 05" East 367.02feet to the point of beginning.
<PAGE>
EXHIBIT D
to
PREMISES AND FACILITIES LEASE
between
Global TransPark Foundation, Inc.
and
Mountain Air Cargo, Inc.
Dated as of November 16, 1995
______________________
Additional Space Subject to Option to Lease
The additional space subject to option pursuant to Section3.2(c), of the Lease
to which this ExhibitD is attached, consist of those areas shown in the color
yellow on ExhibitB-2 to the Lease (being in the aggregate approximately five
thousand eight hundred (5,800) square feet), together with use of the common-
use areas shown in the color green on ExhibitsB-1, B-2 and B-3 to the Lease;
excluding, however, the additional ten thousand(10,000) square feet of space
on the mezzanine level which is suitable only for storage space.
<PAGE>
EXHIBIT E
to
PREMISES AND FACILITIES LEASE
between
Global TransPark Foundation, Inc.
and
Mountain Air Cargo, Inc.
Dated as of November 16, 1995
______________________
Environmental and Safety Requirements
Compliance with Environmental and Safety Requirements.
(a)Compliance by the Company. The Company, in conducting or controlling any
activity on the Leased Property, including, without limitation, any
environmental, assessment, response, removal, or remedial activities, shall
comply with all applicable local, State, or Federal environmental rules,
regulations, statutes, laws or orders (collectively, "Environmental and Safety
Requirements"), including but not limited to Environmental and Safety
Requirements regarding the generation, treatment, storage, use, and disposal
of "hazardous materials" or "special wastes" and regarding releases or
threatened releases of hazardous materials or special wastes to the
environment. For purposes of this Lease, the term "Environmental and Safety
Requirements" shall mean all Federal, State, and local statutes, regulations,
ordinances, similar provisions having the force or affect of law, all
contractual obligations and all common law concerning public health and
safety, worker health and safety, and pollution and protection of the
environment, including, without limitation, all standards of conduct and bases
of obligations relating to the presence, use, production, generation,
handling, transportation, treatment, storage, disposal, distribution,
labeling, testing, processing, discharge, release, threatened release,
control, or cleanup or any hazardous or otherwise regulated materials,
substances, or wastes, chemical substances or mixtures, pesticides,
pollutants, contaminants, toxic chemicals, petroleum products or by-products,
asbestos-containing materials, presumably asbestos-containing materials,
polybiphenyls, noise, or radiation.
The Company agrees to ensure that the Facilities are designed, constructed,
operated and maintained in a manner that avoids or minimizes environmental
impact through appropriate preventive measures and complies with all Federal,
State and local environmental requirements.
The Company shall indemnify the Foundation for penalties incurred by the
Foundation as a result of the release or threatened release by the Company, or
any person or entity acting on behalf of, or under control of the Company, of
any pollutant or contaminant from the Leased Property.
The Company shall conduct all necessary environmental monitoring pertaining to
Company construction, operation, and maintenance activities to ensure
compliance with standards set by appropriate environmental laws regulations,
orders, decrees, ordinances, and permits. Records of measurements shall be
retained and available for inspection. The Company shall provide to the
Foundation, upon request of the Foundation, copies of all environmental data
collected by, or on behalf of, the Company and in any way related to the
Leased Property.
The Company shall acquire all necessary Federal, State and local environmental
and operating permits and comply with all applicable Federal and State
environmental permit requirements, related to its use, occupancy, alterations,
or modifications to the facility.
In the case of a release, spill, or leak or threat of any of the foregoing, as
a result of Company construction, preparation and maintenance activities, the
Company immediately shall report the occurrence thereof and proceed to
control, abate, assess, remediate, as may be applicable, the contaminated
media to applicable Federal, State, and local standards.
(b)Review of Environmental Documents. The Company, at the request of the
Foundation, shall make available for inspection and copying at the
Foundation's expense, upon reasonable notice and at reasonable times, any or
all of the documents and materials that the Company has prepared pursuant to
any Environmental and Safety Requirement or submitted to any governmental
agency or otherwise under its control. If there is an Environmental and
Safety Requirement to file any notice or report of a release or threatened
release of hazardous materials, special wastes, or other regulated materials
on, under, or about the Leased Property, the Company shall provide a copy of
such report or notice to the Foundation.
(c) Access for Environmental Inspection. The Foundation shall have a right of
access to the Leased Property and to any of the improvements thereon with
prior notice, reasonable under the circumstances as to time and means, to
inspect the same to confirm that the Company is using the leased facilities in
accordance with the Environmental and Safety Requirements. The Company shall
conduct such testing and analysis as is necessary to ascertain whether the
Company is using the leased facilities in compliance with all Environmental
and Safety Requirements. Such right of access to inspect shall be exercised
in a reasonable manner so as to cause the minimum reasonable interruption of
or interference with the operations of the Company. Any such tests shall be
conducted by qualified independent experts chosen by the Company and subject
to the reasonable approval of the Foundation. Copies of reports from any such
testing shall be provided to the Foundation.
(d)Duty to Notify Foundation. In the event of a release or threatened release
of hazardous materials, or special wastes, or other regulated materials, to
the environment relating to or arising out of the Company's use or occupancy
of the Leased Property, or in the event any claim, demand, action or notice is
made against the Company with regard to the Company's failure or alleged
failure to comply with any Environmental and Safety Requirements, the Company
immediately shall notify the Foundation in writing and shall provide the
Foundation with copies of any written claims, demands, notices or actions so
made.
(e)Environmental Remediation. The Company shall undertake any action as is
necessary to, assess, remove, or remedy hazardous materials, special wastes,
or other regulated materials, and any other environmental contamination
discovered or existing on or under the Leased Property, whether or not
introduced by or caused by the Company or any person or entity under control
of the Company, as is necessary to protect the public health and safety and
the environment from actual or potential harm and to bring the Leased Property
into compliance with all applicable Environmental and Safety Requirements in
effect as of the date thereof.
All work to bring the Leased Property into compliance with all applicable
Environmental and Safety Requirements shall be performed at the Company's
expense after the Company submits any necessary applications and receives
appropriate approvals. Specific cleanup levels for any environmental
remediation work shall be designed to comply with applicable requirements
under Federal, State, and local statutes, regulations, ordinances, rules, and
guidelines. In the event that the Foundation is named in any enforcement
action or lawsuit by any party in connection with the environmental condition
of the Leased Property, the Company shall indemnify the Foundation for any
costs, fines, or damages that might be assessed against the Foundation and
occasioned by the Company's use of the Leased Property.
(f)Environmental and Safety Requirements for Operation and Maintenance.
(1) Maintenance Activities and Fueling. All underground storage tanks,
pipelines and any other underground metallic structures installed by the
Company on or at the Leased Property shall comply when installed, and shall
be maintained in compliance, with all applicable Federal, State, and local
statutes, regulations, ordinances, rules, and guideline. Airport officials
shall be notified of any removal, addition, or modification of underground
tanks, piping and other metallic structures.
The Company shall be responsible for all containment, recycling, treatment,
and disposal of all fuel spills associated with Company operations using "Best
Management Practices." The Company shall make all "best efforts" to reuse or
recycle recovered fuel For small spills, the Company shall use adsorbents
suitable for cement kiln combustion. A spill prevention containment and
control plan shall be prepared and submitted according to Federal and State
requirements.
Fuel storage tanks shall either be installed above ground, according to
appropriate Federal and State requirements, or underground within an open
concrete vault to allow for tank inspection. Underground storage tanks shall
comply with EPA regulations cited in 40 CFR Part 280 and with NC UST
regulations cited in 15A NCAC 2N.
(2) Water Conservation. The Company agrees to consider the use of reclaimed
water for compatible water use activities including watering of exterior
landscaping. The Company shall connect to the reclaimed water system within
sixty (60) days of availability of the reclaimed water in the event it decides
to make use of such water.
(3) Air Emission Controls. The Company shall obtain all necessary air
emission control and operating permits associated with operation and
maintenance of the Leased Property including, without limitation, the design
and construction of any facilities to be constructed by the Company in or on
the Leased Property.
(4) Water Pollution Control. The Company shall obtain all necessary permits
under NPDES (National Pollutant Discharge Elimination System) stormwater
regulations (40 CFR Part 122-124) and industrial and sanitary pretreatment
requirements.
The Company shall comply with all Federal and State water pollution control
requirements. At the request of the Foundation, the Company shall release to
the Foundation any data collected by or on behalf of the Company relating to
water quality monitoring.
<PAGE>
EXHIBIT F
to
PREMISES AND FACILITIES LEASE
between
Global TransPark Foundation, Inc.
and
Mountain Air Cargo, Inc.
Dated as of November 16, 1995
______________________
Avigation Easement
AVIGATION EASEMENT: Grantor, for itself, its successors, and assigns, for the
benefit of the public in its use of the Kinston Regional Jetport, hereby
reserves and retains a right of flight in the airspace above the tract or
parcel of land described on ExhibitA hereto for the passage of aircraft
operated in a non-negligent manner overflying, landing at, or taking off from,
the Kinston Regional Jetport, together with the right to cause to emanate from
such aircraft upon such land and any improvements thereon, and in the air
space above such land, such noise as may now or hereafter be incident to the
non-negligent operation of aircraft overflying, landing at, or taking off
from, the Kinston Regional Jetport.
Without in anyway derogating from the generality of the foregoing paragraph,
the Grantor, for itself, its successors, and assigns, hereby reserves and
retains an avigation easement over the tract or parcel of land described on
ExhibitA hereto for the purpose of establishing, constructing, maintaining,
and operating one or more air navigation systems or instrument landing systems
of a kind now in use, or hereafter devised for use, at or in connection with
the Kinston Regional Jetport; such avigation easement reserves to and retains
in Grantor, it successors, and assigns, for the benefit of the public in its
use of such airport, certain rights and privileges, and denies to Grantee, its
successors, and assigns, certain rights and privileges, as follows:
1.Grantee, its successors, and assigns, shall not hereafter erect, or permit
the erection, or growth of, any structure, tree, or other object on any
portion of the tract or parcel of land described on ExhibitA hereto which lies
within any enroute flight area, clear zone approach area, transitional area,
or any other areas designated by application, from time to time, of the
criteria of the Federal Aviation Administration, or its successor agency in
function, over which any air navigation or instrument landing system may now
or hereafter be in service, required, convenient, or advisable for effective
and safe operation of aircraft overflying, landing at, or taking off from, the
Kinston Regional Jetport, to a height above the ground which would interfere
with, or present a safety hazard to, aircraft overflying landing at, or taking
off from, the Kinston Regional Jetport, or otherwise as may be required by, or
recommended in, any statute, regulation, or agreement applicable to the
Kinston Regional Jetport.
2.Grantor, itself and its successors, and assigns, and their agents, servants,
and employees shall have a continuing right and easement: (a)to take any
action necessary to prevent the erection, or growth, of any structure, tree,
or other object into the airspace referred to in Paragraph1 above, above such
land, designated as a part of any such air navigation or instrument landing
system, and to remove from such airspace, or mark and light as obstructions to
air navigation, any and all structures, trees, or other objects that may at
any time, or from time to time, project or extend above such land and into
such airspace, together with a right of ingress to, egress from, and passage
over such land for such purposes; and (b)to cut at any time, or from time to
time, to a level measured twelve(12) inches above the ground any and all trees
growing, or which may grow, upon such land and, at the election of Grantor,
its successors and assigns, to leave such trees so cut upon such land or to
remove them and to sell such trees. The proceeds of the sale of such trees,
after deducting the costs of cutting and removal, shall be paid to Grantee,
its successors and assigns; and for such purpose, Grantor, for itself, its
successors, and assigns hereby reserves and retains the right of ingress to
and egress from, and passage over such land. In the exercise of its right
hereunder, Grantor, its successors, and assigns, shall not be responsible or
liable for loss or cost of any structure, tree, or other object so removed or
prevented from being erected or growing, except that Grantee, its successors,
and assigns, shall be entitled to the net sales price for any trees removed as
provided above; provided, however, Grantor shall be responsible and liable for
any damage to such land and any improvements thereon caused by the exercise of
its rights reserved hereunder to the extent that such damage shall exceed the
normal damage incident to the exercise of such rights.
Grantor, its successors and assigns, shall hold this avigation easement and
all rights reserved or retained herein until Kinston Regional Jetport shall be
abandoned and shall cease to be used for purposes of a public airport.
This avigation easement and rights reserved and retained herein shall run with
the land, and any portion of such land, which lies beneath the airspace
referred to herein shall be the servient tenement and the Kinston Regional
Jetport shall be the dominant tenement.
By its acceptance of the conveyance of the property conveyed herein, Grantee,
for itself and its successors, and assigns, hereby releases Grantor, its
successors, and assigns, from any and all claims, liabilities, or causes of
actions that it has or it or they will have against Grantor, its successors,
and assigns, on account of noise emanating upon the property conveyed herein
and any improvements thereon which may now or hereafter may be incident to the
non-negligent operation of aircraft overflying, landing at, or taking off
from, the Kinston Regional Jetport, as well as any claim, liability, or cause
of action for inverse condemnation arising out of the non-negligent operation
of aircraft overflying, landing at, or taking off from, the Kinston Regional
Jetport.
<PAGE>
EXHIBIT G
to
PREMISES AND FACILITIES LEASE
between
Global TransPark Foundation, Inc.
and
Mountain Air Cargo, Inc.
Dated as of November 16, 1995
______________________
FEDERAL AIRPORT ASSURANCES
Airport Sponsors
A.General.
1.These assurances shall be complied with in the performance of grant
agreements for airport development, airport planning, and noise compatibility
program grants for airport sponsors.
2.These assurances are required to be submitted as part of the project
application by sponsors requesting funds under the provisions of Title49,
U.S.C., subtitleVII, as amended. As used herein, the term "public agency
sponsor" means a public agency with control of a public-use airport; the term
"private sponsor" means a private owner of a public-use airport; and the term
"sponsor" includes both public agency sponsors and private sponsors.
3.Upon acceptance of the grant offer by the sponsor, these assurances are
incorporated in and become part of the grant agreement.
B.Duration and Applicability.
1.Airport development or Noise Compatibility Program Projects Undertaken by a
Public Agency Sponsor. The terms, conditions and assurances of the grant
agreement shall remain in full force and effect throughout the useful life of
the facilities developed or equipment acquired for an airport development or
noise compatibility program project, or throughout the useful life of the
project items installed within a facility under a noise compatibility program
project, but in any event not to exceed twenty (20) years from the date of
acceptance of a grant offer of Federal funds for the project. However, there
shall be no limit on the duration of the assurance against exclusive rights or
the terms, conditions and assurances with respect to real property acquired
with Federal funds. Furthermore, the duration of the Civil Rights assurance
shall be specified in the assurances.
2.Airport Development or Noise Compatibility Projects Undertaken by a Private
Sponsor. The preceding paragraph1 also applies to a private sponsor except
that the useful life of project items installed within a facility or the
useful life of the facilities developed or equipment acquired under an airport
development or noise compatibility program project shall be no less than ten
(10) years from the date of acceptance of Federal aid for the project.
3.Airport Planning Undertaken by a Sponsor. Unless otherwise specified in the
grant agreement, only Assurances1, 2, 3, 5, 6, 13, 18, 30, 32, 33, and 34 in
sectionC apply to planning projects. The terms, conditions and assurances of
the grant agreement shall remain in full force and effect during the life of
the project.
C.Sponsor Certification. The sponsor hereby assures and certifies, with
respect to this grant that:
1.General Federal Requirements. It will comply with all applicable Federal
laws, regulations, executive orders, policies, guidelines, and requirements as
they relate to the application, acceptance and use of Federal funds for this
project including but not limited to the following:
Federal Legislation
a.Title49, U.S.C., subtitleVII, as amended.
b.Davis-Bacon Act - 40 U.S.C.276(a), et seq.1
c.Federal Fair Labor Standards Act - 29 U.S.C.201, et seq.
d.Hatch Act - 5 U.S.C.1501, et seq.2
e.Uniform Relocation Assistance and Real Property Acquisition Policies Act of
1970 - 42 U.S.C.4601, et seq.1 2
f.National Historic Preservation Act of 1966 - Section106 - 16 U.S.C.470(f).1
g.Archeological and Historic Preservation Act of 1974 - 16 U.S.C.469 through
469c.1
h.Flood Disaster Protection Act of 1973 - Section102(a) - 42 U.S.C.4012a.1
i.Rehabilitation Act of 1973 - 29 U.S.C.794.
j.Civil Rights Act of 1964 - TitleVI - 42 U.S.C.2000d through d-4.
k.Age Discrimination Act of 1975 - 42 U.S.C.6101, et seq.
l.Architectural Barriers Act of 1968 - 42 U.S.C.4151, et seq.1
m.Powerplant and Industrial Fuel Use Act of 1978 - Section403 - 2 U.S.C.8373.1
n.Contract Work Hours and Safety Standards Act - 40 U.S.C.327, et seq.1
o.Copeland Antikickback Act - 18 U.S.C.874.1
p.National Environmental Policy Act of 1969 - 42 U.S.C.4321, et seq.1
q.Endangered Species Act - 16 U.S.C.668(a), et seq.1
r.Single Audit Act of 1984 - 31 U.S.C.7501, et seq.2
s.Drug-Free Workplace Act of 1988 - 41 U.S.C.702 through 706.
Executive Orders
Executive Order12372 - Intergovernmental Review of Federal Programs.
Executive Order11246 - Equal Employment Opportunity1
Executive Order12699 - Seismic Safety of Federal and Federally Assisted New
Building Construction1
Federal Regulations
a.49 CFR Part18 - Uniform administrative requirements for grants and
cooperative agreements to state and local governments.3
b.49 CFR Part21 - Nondiscrimination in federally-assisted programs of the
Department of Transportation - effectuation of TitleVI of the Civil Rights Act
of 1964.
c.49 CFR Part23 - Participation by minority business enterprise in Department
of Transportation programs.
d.49 CFR Part24 - Uniform relocation assistance and real property acquisition
for Federal and federally assisted programs.1 2
e.49 CFR Part27 - Nondiscrimination on the basis of handicap in programs and
activities receiving or benefitting from Federal financial assistance.1
f.49 CFR Part29 - Governmentwide debarment and suspension (non-procurement and
governmentwide requirements for drug-free workplace (grants).
g.49 CFR Part30 - Denial of public works contracts to suppliers of goods and
services of countries that deny procurement market access to U.S. contractors.
h.29 CFR Part1 - Procedures for predetermination of wage rates.1
i.29 CFR Part3 - Contractors and subcontractors on public building or public
_________ financed in whole or part by loans or grants from the United
States.1
j.29 CFR Part5 - Labor standards provisions applicable to contracts covering
federally financed and assisted construction (also labor standards provisions
applicable to nonconstruction contracts subject to the Contract Work Hours and
Safety Standards Act).1
k.41 CFR Part60 - Office of Federal Contract Compliance Programs, Equal
Employment Opportunity, Department of Labor (Federal and federally assisted
contracting requirements).1
l.14 CFR Part150 - Airport noise compatibility planning.
m.49 CFR Part41 - Seismic safety of Federal and federally assisted or
regulated new building construction.1
n.49 CFR Part20 - New restrictions on lobbying.
Office of Management and Budget Circulars
a.A-87 - Cost Principles Applicable to Grants and Contracts with State and
Local Governments.
b.A-128 - Audits of State and Local Governments.
1 These laws do not apply to airport planning sponsors.
2 These laws do not apply to private sponsors.
3 49 CFR Part18 and OMB Circular A-87 contain requirements for State and Local
Governments receiving Federal assistance. Any requirement levied upon State
and Local Governments by this regulation and circular shall also be applicable
to private sponsors receiving Federal assistance under the Airport and Airway
Improvement Act of 1982, as amended.
Specific assurances required to be included in grant agreements by any of the
above laws, regulations or circulars are incorporated by reference in the
grant agreement.<PAGE>
2.Responsibility and Authority of the Sponsor.
a.Public Agency Sponsor: It has legal authority to apply for the grant, and
to finance and carry out the proposed project; that a resolution, motion or
similar action has been duly adopted or passed as an official act of the
applicant's governing body authorizing the filing of the application,
including all understandings and assurances contained therein, and directing
and authorizing the person identified as the official representative of the
applicant to act in connection with the application and to provide such
additional information as may be required.
b.Private Sponsor: It has legal authority to apply for the grant and to
finance and carry out the proposed project and comply with all terms,
conditions, and assurances of this grant agreement. It shall designate an
official representative and shall in writing direct and authorize that person
to file this application, including all understandings and assurances
contained therein; to act in connection with this application; and to provide
such additional information as may be required.
3.Sponsor Fund Availability. It has sufficient funds available for that
portion of the project costs which are not paid by the United States. It has
sufficient funds available to assure operation and maintenance of items funded
under the grant agreement which it will own or control.
4.Good Title.
a.It holds good title, satisfactory to the Secretary, to the landing area of
the airport or site thereof, or will give assurance satisfactory to the
Secretary that good title will be acquired.
b.For noise compatibility program projects to be carried out on the property
of the sponsor, it holds good title satisfactory to the Secretary to that
portion of the property upon which Federal funds will be expended or will give
assurance to the Secretary that good title will be obtained.
5.Preserving Rights and Powers.
a.It will not take or permit any action which would operate to deprive it of
any of the rights and powers necessary to perform any or all of the terms,
conditions, and assurances in the grant agreement without the written approval
of the Secretary, and will act promptly to acquire, extinguish or modify any
outstanding rights or claims of right of others which would interfere with
such performance by the sponsor. This shall be done in a manner acceptable to
the Secretary.
<PAGE>
b.It will not sell, lease, encumber, or otherwise transfer or dispose of any
part of its title or other interests in the property shown on ExhibitA to this
application or, for a noise compatibility program project, that portion of the
property upon which Federal funds have been expended, for the duration of the
terms, conditions, and assurances in the grant agreement without approval by
the Secretary. If the transferee is found by the Secretary to be eligible
under the Airport and Airway Improvement Act of 1982 to assume the obligations
of the grant agreement and to have the power, authority, and financial
resources to carry out all such obligations, the sponsor shall insert in the
contract or document transferring or disposing of the sponsor's interest, and
make binding upon the transferee of all of the terms, conditions, and
assurances contained in this grant agreement.
c.For all noise compatibility program projects which are to be carried out by
another unit of local government or are on property owned by a unit of local
government other than the sponsor, it will enter into an agreement with that
government. Except as otherwise specified by the Secretary, that agreement
shall obligate that government to the same terms, conditions, and assurances
that would be applicable to it if it applied directly to the FAA for a grant
to undertake the noise compatibility program project. That agreement and
changes thereto must be satisfactory to the Secretary. It will take steps to
enforce this agreement against the local government if there is substantial
non-compliance with the terms of the agreement.
d.For noise compatibility program projects to be carried out on privately
owned property, it will enter into an agreement with the owner of that
property which includes provisions specified by the Secretary. It will take
steps to enforce this agreement against the property owner whenever there is
substantial non-compliance with the terms of the agreement.
e.If the sponsor is a private sponsor, it will take steps satisfactory to the
Secretary to ensure that the airport will continue to function as a public-use
airport in accordance with these assurances for the duration of these
assurances.
f.If an arrangement is made for management and operation of the airport by any
agency or person other than the sponsor or an employee of the sponsor, the
sponsor will reserve sufficient rights and authority to insure that the
airport will be operated and maintained in accordance with the Airport and
Airway Improvement Act of 1982, the regulations and the terms, conditions and
assurances in the grant agreement and shall insure that such arrangement also
requires compliance therewith.
<PAGE>
6.Consistency with Local Plans. The project is reasonably consistent with
plans (existing at the time of submission of this application) of public
agencies that are authorized by the State in which the project is located to
plan for the development of the area surrounding the airport. For noise
compatibility program projects, other than land acquisition, to be carried out
on property not owned by the airport and over which property another agency
has land use control or authority, the sponsor shall obtain from each such
agency a written declaration that such agency supports the project and the
project is reasonably consistent with the agency's plans regarding the
property.
7.Consideration of Local Interest. It has given fair consideration to the
interest of communities in or near where the project may be located.
8.Consultation with Users. In making a decision to undertake any airport
development project under the Airport and Airway Improvement Act of 1982, it
has undertaken reasonable consultations with affected parties using the
airport at which project is proposed.
9.Public Hearings. In projects involving the location of an airport, an
airport runway, or a major runway extension, it has afforded the opportunity
for public hearings for the purpose of considering the economic, social, and
environmental effects of the airport or runway location and its consistency
with goals and objectives of such planning as has been carried out by the
community and it shall, when requested by the Secretary, submit a copy of the
transcript of such hearings to the Secretary. Further, for such projects, it
has on its management board either voting representation from the communities
where the project is located or has advised the communities that they have the
right to petition the Secretary concerning a proposed project.
10.Air and Water Quality Standards. In projects involving airport location, a
major runway extension, or runway location it will provide for the Governor of
the state in which the project is located to certify in writing to the
Secretary that the project will be located, designed, constructed, and
operated so as to comply with applicable air and water quality standards, In
any case where such standards have not been approved and where applicable air
and water quality standards have been promulgated by the Administrator of the
Environmental Protection Agency, certification shall be obtained from such
Administrator. Notice of certification or refusal to certify shall be
provided within sixty (60) days after the project application has been
received by the Secretary.
11.Pavement Preventive Maintenance. With respect to a project approved after
January1, 1995, for the replacement or reconstruction of pavement at the
airport, it assures or certifies that it has implemented an effective airport
pavement maintenance-management program and it assures that it will use such
program for the useful life of any pavement constructed, reconstructed or
repaired with Federal financial assistance at the airport. It will provide
such reports on pavement condition and pavement management programs as the
Secretary determines may be useful.
<PAGE>
12.Terminal Development Prerequisites. For projects which include terminal
development at a public airport, it has, on the date of submittal of the
project grant application, all the safety equipment required for certification
of such airport under section612 of the Federal Aviation Act of 1958 and all
the security equipment required by rule or regulation, and has provided for
access to the passenger enplaning and deplaning area of such airport to
passengers enplaning and deplaning from aircraft other than air carrier
aircraft.
13.Accounting System, Audit, and Recordkeeping Requirements.
a.It shall keep all project accounts and records which fully disclose the
amount and disposition by the recipient of the proceeds of the grant, the
total cost of the project in connection with which the grant is given or used,
and the amount or nature of that portion of the cost of the project supplied
by other sources, and such other financial records pertinent to the project.
The accounts and records shall be kept in accordance with an accounting system
that will facilitate an effective audit in accordance with the Single Audit
Act of 1984.
b.It shall make available to the Secretary and the Comptroller General of the
United States, or any of their duly authorized representatives, for the
purpose of audit and examination, any books, documents, papers, and records of
the recipient that are pertinent to the grant. The Secretary may require that
an appropriate audit be conducted by a recipient. In any case in which an
independent audit is made of the accounts of a sponsor relating to the
disposition of the proceeds of a grant or relating to the project in
connection with which the grant was given or used, it shall file a certified
copy of such audit with the Comptroller General of the United States not later
than six (6) months following the close of the fiscal year for which the audit
was made.
14.Minimum Wage Rates. It shall include, in all contracts in excess of $2,000
for work on any projects funded under the grant agreement which involve labor,
provisions establishing minimum rates of wages, to be predetermined by the
Secretary of Labor, in accordance with the Davis Bacon Act, as amended (40
U.S.C.276a-276a-5), which contractors shall pay to skilled and unskilled
labor, and such minimum rates shall be stated in the invitation for bids and
shall be included in proposals or bids for the work.
15.Veteran's Preference. It shall include in all contracts for work on any
project funded under the grant agreement which involve labor, such provisions
as are necessary to insure that, in the employment of labor (except in
executive, administrative, and supervisory positions), preference shall be
given to Veterans of the Vietnam era and disable veterans as defined in
Section515(c)(1) and (2) of the Airport and Airway Improvement Act of 1982.
However, this preference shall apply only where the individuals are available
and qualified to perform the work to which the employment relates.
16.Conformity to Plans and Specifications. It will execute the project
subject to plans, specification, and schedules approved by the Secretary.
Such plans, specifications, and schedules shall be submitted to the Secretary
prior to commencement of site preparation, construction, or other performance
under this grant agreement, and, upon approval of the Secretary, shall be
incorporated into this grant agreement. Any modification to the approved
plans, specifications, and schedules shall also be subject to approval of the
Secretary, and incorporated into the grant agreement.
17.Construction Inspection and Approval. It will provide and maintain
competent technical supervision at the construction site throughout the
project to assure that the work conforms to the plans, specification, and
schedules approved by the Secretary for the project. It shall subject the
construction work on any project contained in an approved project application
to inspection and approval by the Secretary and such work shall be in
accordance with regulations and procedures prescribed by the Secretary. Such
regulations and procedures shall require such cost and progress reporting by
the sponsor or sponsors of such project as the Secretary shall deem necessary.
18.Planning Projects. In carrying out planning projects:
a.It will execute the project in accordance with the approved program
narrative contained in the project application or with the modifications
similarly approved.
b.It will furnish the Secretary with such periodic reports as required
pertaining to the planning project and planning work activities.
c.It will include in all published material prepared in connection with the
planning project a notice that the material was prepared under a grant
provided by the United States.
d.It will make such material available for examination by the public, and
agrees that no material prepared with funds under this project shall be
subject to copyright in the United States or any other country.
e.It will give the Secretary unrestricted authority to publish, disclose,
distribute, and otherwise use any of the material prepared in connection with
this grant.
f.It will grant the Secretary the right to disapprove the sponsor's employment
of specific consultants and their subcontractors to do all or any part of this
project as well as the right to disapprove the proposed scope and cost of
professional services.
g.It will grant the Secretary the right to disapprove the use of the sponsor's
employees to do all or any part of the project.
<PAGE>
h.It understands and agrees that the Secretary's approval of this project
grant or the Secretary's approval of any planning material developed as part
of this grant does not constitute or imply any assurance or commitment on the
part of the Secretary to approve any pending or future application for a
Federal airport grant.
19.Operation and Maintenance.
a.It will suitably operate and maintain the airport and all facilities thereon
or connected therewith, with due regard to climatic and flood conditions. Any
proposal to temporarily close the airport for nonaeronautical purposes must
first be approved by the Secretary. The airport and all facilities which are
necessary to serve the aeronautical users of the airport, other than
facilities owned or controlled by the United States, shall be operated at all
times in a safe and serviceable condition and in accordance with the minimum
standards as may be required or prescribed by applicable Federal, state and
local agencies for maintenance and operation. It will not cause or permit any
activity or action thereon which would interfere with its use for airport
purposes.
In furtherance of this assurance, the sponsor will have in effect at all times
arrangements for-
(1) Operating the airport's aeronautical facilities whenever required;
(2) Promptly marking and lighting hazards resulting from airport conditions,
including temporary conditions; and
(3) Promptly notifying airmen of any condition affecting aeronautical use of
the airport.
Nothing contained herein shall be construed to require that the airport be
operated for aeronautical use during temporary periods when snow, flood or
other climatic conditions interfere with such operation and maintenance.
Further, nothing herein shall be construed as requiring the maintenance,
repair, restoration, or replacement of any structure or facility which is
substantially damaged or destroyed due to an act of God or other condition or
circumstance beyond the control of the sponsor.
b.It will suitably operate and maintain noise compatibility program items that
it owns or controls upon which Federal funds have been expended.
20.Hazard Removal and Mitigation. It will take appropriate action to assure
that such terminal airspace as is required to protect instrument and visual
operations to the airport (including established minimum flight altitudes)
will be adequately cleared and protected by removing, lowering, relocating,
marking, or lighting or otherwise mitigating existing airport hazards and by
preventing the establishment or creation of future airport hazards.
21.Compatible Land Use. It will take appropriate action, including the
adoption of zoning laws, to the extent reasonable, to restrict the use of land
adjacent to or in the immediate vicinity of the airport to activities and
purposes compatible with normal airport operations, including landing and
takeoff of aircraft. In addition, if the project is for noise compatibility
program implementation, it will not cause or permit any change in land use,
within its jurisdiction, that will reduce its compatibility, with respect to
the airport of the noise compatibility program measures upon which Federal
funds have been expended.
22.Economic Nondiscrimination.
a.It will make its airport available as an airport for public use on fair and
reasonable terms and without unjust discrimination, to all types, kinds and
classes of aeronautical use.
b.In any agreement, contract, lease, or other arrangement under which a right
or privilege at the airport is granted to any person, firm, or corporation to
conduct or engage in any aeronautical activity for furnishing services to the
public at the airport, the sponsor will insert and enforce provisions
requiring the contractor to-
(1)furnish said services on a fair, reasonable, and not unjustly
discriminatory basis to all users thereof, and
(2)charge fair, reasonable, and not unjustly discriminatory prices for each
unit or service, provided that the contractor may be allowed to make
reasonable and nondiscriminatory discounts, rebates, or other similar types of
price reductions to volume purchasers.
c.Each fixed-based operator at any airport owned by the sponsor shall be
subject to the same rates, fees, rentals, and other charges as are uniformly
applicable to all other fixed-based operators making the same or similar uses
of such airport and utilizing the same or similar facilities.
d.Each air carrier using such airport shall have the right to service itself
or to use any fixed-based operator that is authorized or permitted by the
airport to serve any air carrier at such airport.
e.Each air carrier using such airport (whether as a tenant, nontenant, or
subtenant of another air carrier tenant) shall be subject to such
nondiscriminatory and substantially comparable rules, regulations, conditions,
rates, fees, rentals, and other charges with respect to facilities directly
and substantially related to providing air transportation as are applicable to
all such air carriers which make similar use of such airport and utilize
similar facilities, subject to reasonable classifications such as tenants or
nontenants and signatory carriers and nonsignatory carriers. Classification
or status as tenant or signatory shall not be unreasonably withheld by any
airport provided an air carrier assumes obligations substantially similar to
those already imposed on air carriers in such classification or status.
f.It will not exercise or grant any right or privilege which operates to
prevent any person, firm, or corporation operating aircraft on the airport;
from performing any services on its own aircraft with its own employees
(including, but not limited to maintenance, repair, and fueling) that it may
choose to perform.
g.In the event the sponsor itself exercises any of the rights and privileges
referred to in this assurance, the services involved will be provided on the
same conditions as would apply to the furnishing of such services by
contractors or concessionaires of the sponsor under these provisions.
h.The sponsor may establish such fair, equal, and not unjustly discriminatory
conditions to be met by all users of the airport as may be necessary for the
safe and efficient operation of the airport.
i.The sponsor may prohibit or limit any given type, kind or class of
aeronautical use of the airport or necessary to serve the civil aviation needs
of the public.
23.Exclusive Rights. It will permit no exclusive right for the use of the
airport by any person providing, or intending to provide, aeronautical
services to the public. For purposes of this paragraph, the providing of the
services at an airport by a single fixed-based operator shall not be construed
as an exclusive right if both of the following apply:
a.It would be unreasonably costly, burdensome, or impractical for more than
one fixed-based operator to provide such services, and
b.If allowing more than one fixed-based operator to provide such services
would require the reduction of space leased pursuant to an existing agreement
between such single fixed-based operator and such airport.
It further agrees that it will not, either directly or indirectly, grant or
permit any person, firm, or corporation, the exclusive right at the airport to
conduct any aeronautical activities, including, but not limited to charter
flights, pilot training, aircraft rental and sightseeing, aerial photography,
crop dusting, aerial advertising and surveying, air carrier operations,
aircraft sales and services, sale of aviation petroleum products whether or
not conducted in conjunction with other aeronautical activity, repair and
maintenance of aircraft, sale of aircraft parts, and any other activities
which because of their direct relationship to the operation of aircraft can be
regarded as an aeronautical activity, and that it will terminate any exclusive
right to conduct an aeronautical activity now existing at such an airport
before the grant of any assistance under the Airport and Airway Improvement
Act of 1982.
24.Fee and Rental Structure. It will maintain a fee and rental structure
consistent with Assurance22 and 23 for the facilities and services being
provided the airport users which will make the airport as self-sustaining as
possible under the circumstances existing at the particular airport, taking
into account such factors as the volume of traffic and economy of collection.
No part of the Federal share of an airport development, airport planning or
noise compatibility project for which a grant is made under the Airport and
Airway Improvement Act of 1982, the Federal Airport Act or the Airport and
Airway Development Act of 1970 shall be included in the rate basis in
establishing fees, rates, and charges for users of that airport.
25.Airport Revenues. If the airport is under the control of a public agency,
all revenues generated by the airport and any local taxes on aviation fuel
established after December30, 1987, will be expended by it for the capital or
operating costs of the airport; the local airport system; or other local
facilities which are owned or operated by the owner or operator of the airport
and directly and substantially related to the actual air transportation of
passengers or property; or for noise mitigation purposes on or off the
airport. Provided, however, that if covenants or assurances in debt
obligations issued before September3, 1982, by the owner or operator of the
airport, or provisions enacted before September3, 1982, in governing statutes
controlling the owner or operator's financing, provide for the use of the
revenues from any of the airport owner or operator's facilities, including the
airport, to support not only the airport but also the airport owner or
operator's general debt obligations or other facilities, then this limitation
on the use of all revenues generated by the airport (and, in the case of a
public airport, local taxes on aviation fuel) shall not apply.
26.Reports and Inspections. It will:
(a)submit to the Secretary such annual or special financial and operations
reports as the Secretary may reasonably request and make such reports
available to the public;
(b)make available to the public at reasonable times and places a report of the
airport budget in a format prescribed by the Secretary;
(c)for airport development projects, make the airport and all airport records
and documents affecting the airport, including deeds, leases, operation and
use agreements, regulations and other instruments, available for inspection by
any duly authorized agent of the Secretary upon reasonable request;
(d)for noise compatibility program projects, make records and documents
relating to the project and continued compliance with the terms, conditions,
and assurances of the grant agreement including deeds, leases, agreements,
regulations, and other instruments, available for inspection by any duly
authorized agent of the Secretary upon reasonable request; and
<PAGE>
(e)in a format prescribed by the Secretary, provide to the Secretary and make
available to the public, not later than sixty (60) days following each of its
fiscal years, ending after March1, 1995, an annual report listing in detail:
(i)all amounts paid by the airport to any other unit of government and the
purposes for which each such payment was made; and
(ii)all services and property provided by the airport to other units of
government and the amount of compensation received for provision of each such
service and property.
27.Use by Government Aircraft. It will make available all of the facilities
of the airport developed with Federal financial assistance and all those
usable for landing and takeoff of aircraft to the United States for use by
Government aircraft in common with other aircraft at all times without charge,
except, if the use by Government aircraft is substantial, charge may be made
for a reasonable share, proportional to such use, for the cost of operating
and maintaining the facilities used. Unless otherwise determined by the
Secretary, or otherwise agreed to by the sponsor and the using agency,
substantial use of an airport by Government aircraft will be considered to
exist when operations of such aircraft are in excess of those which, in the
opinion of the Secretary, would unduly interfere with use of the landing areas
by other authorized aircraft, or during any calendar month that-
a.Five (5) or more Government aircraft are regularly based at the airport or
on land adjacent thereto; or
b.The total number of movements (counting each landing as movement) of
Government aircraft is 300 or more, or the gross accumulative weight of
Government aircraft using the airport (the total movement of Government
aircraft multiplied by gross weights of such aircraft) is in excess of five
million pounds.
28.Land for Federal Facilities. It will furnish without cost to the Federal
Government for use in connection with any air traffic control or air
navigation activities, or weather-reporting and communication activities
related to air traffic control, any areas of land or water, or estate therein,
or rights in buildings of the sponsor as the Secretary considers necessary or
desirable for construction, operation, and maintenance at Federal expense of
space or facilities for such purposes. Such areas or any portion thereof will
be made available as provided herein within four (4) months after receipt of a
written request from the Secretary.
<PAGE>
29.Airport Layout Plan.
a.It will keep up to date at all times an airport layout plan of the airport
showing (1) boundaries of the airport and all proposed additions thereto,
together with the boundaries of all offsite areas owned or controlled by the
sponsor for airport purposes and proposed additions thereto; (2) the location
and nature of all existing and proposed airport facilities and structures
(such as runways, taxiways, aprons, terminal buildings, hangars and roads),
including all proposed extensions and reductions of existing airport
facilities; and (3) the location of all existing and proposed nonaviation
areas and of all existing improvements thereon. Such airport layout plans and
each amendment, revision, or modification thereof, shall be subject to the
approval of the Secretary which approval shall be evidenced by the signature
of a duly authorized representative of the Secretary on the face of the
airport layout plan. The sponsor will not make or permit any changes or
alterations in the airport or any of its facilities which are not in
conformity with the airport layout plan as approved by the Secretary and which
might, in the opinion of the Secretary, adversely affect the safety, utility
or efficiency of the airport.
b.If a change or alteration in the airport or the facilities is made which the
Secretary determines adversely affects the safety, utility, or efficiency of
any federally owned, leased, or funded property on or off the airport and
which is not in conformity with the airport layout plan as approved by the
Secretary, the owner or operator will, if requested by the Secretary (1)
eliminate such adverse effect in a manner approved by the Secretary; or (2)
bear all costs of relocating such property (or replacement thereof) to a site
acceptable to the Secretary and all costs of restoring such property (or
replacement thereof) to the level of safety, utility, efficiency, and cost of
operation existing before the unapproved change in the airport or its
facilities.
30.Civil Rights. It will comply with such rules as are promulgated to assure
that no person shall, on the grounds of race, creed, color, national origin,
sex, age, or handicap be excluded from participating in any activity conducted
with or benefitting from funds received from this grant. This assurance
obligates the sponsor for the period during which Federal financial assistance
is extended to the program, except where Federal financial assistance is to
provide, or is in the form of personal property or real property or interest
therein or structures or improvements thereon in which case the assurance
obligates the sponsor or any transferee for the longer of the following
periods: (a) the period during which the property is used for a purpose for
which Federal financial assistance is extended, or for another purpose
involving the provision of similar services or benefits, or (b) the period
during which the sponsor retains ownership or possession of the property.
<PAGE>
31.Disposal of Land.
a.For land purchased under a grant for airport noise compatibility purposes,
it will dispose of the land, when the land is no longer needed for such
purposes, at fair market value, at the earliest practicable time. That
portion of the proceeds of such disposition which is proportionate to the
United States' share of acquisition of such land will, at the discretion of
the Secretary, 1) be paid to the Secretary for deposit in the Trust Fund, or
2) be reinvested in an approved noise compatibility project as prescribed by
the Secretary.
b.(1)For land purchased under a grant for airport development purposes (other
than noise compatibility), it will, when the land is no longer needed for
airport purposes, dispose of such land at fair market value or make available
to the Secretary an amount equal to the United States' proportionate share of
the fair market value of the land. That portion of the proceeds of such
disposition which is proportionate to the United States' share of the cost of
acquisition of such land will, (a) upon application to the Secretary, be
reinvested in another eligible airport improvement project or projects
approved by the Secretary at that airport or within the national airport
system, or (b) be paid to the Secretary for deposit in the Trust Fund if no
eligible project exists.
(2)Land shall be considered to be needed for airport purposes under this
assurance if (a) it may be needed for aeronautical purposes including runway
protection zones) or serve as noise buffer land, and (b) the revenue from
interim uses of such land contributes to the financial self-sufficiency of the
airport. Further, land purchased with a grant received by an airport operator
or owner before December31, 1987, will be considered to be needed for airport
purposes if the Secretary or Federal agency making such grant before
December31, 1987, was notified by the operator or owner of the uses of such
land, did not object to such use, and the land continues to be used for that
purpose, such use having commenced no later than December15, 1989.
c.Disposition of such land under (a) or (b) will be subject to the retention
or reservation of any interest or right therein necessary to ensure that such
land will only be used for purposes which are compatible with noise levels
associated with operation of the airport.
32.Engineering and Design Services. It will award each contract, or sub-
contract for program management, construction management, planning studies,
feasibility studies, architectural services, preliminary engineering, design,
engineering, surveying, mapping or related services with respect to the
project in the same manner as a contract for architectural and engineering
services is negotiated under TitleIX of the Federal Property and
Administrative Services Act of 1949 or an equivalent qualifications-based
requirement prescribed for or by the sponsor of the airport.
<PAGE>
33.Foreign Market Restrictions. It will not allow funds provided under this
grant to be used to fund any project which uses any product or service of a
foreign country during the period in which such foreign country is listed by
the United States Trade Representative as denying fair and equitable market
opportunities for products and suppliers of the United States in procurement
and construction.
34.Policies, Standards, and Specifications. It will carry out the project in
accordance with policies, standards, and specifications approved by the
Secretary including but not limited to the advisory circulars listed in the
Current FAA Advisory Circulars for AIP projects, dated May31, 1984, and
included in this grant, and in accordance with applicable state policies,
standards, and specifications approved by the Secretary.
35.Relocation and Real Property Acquisition. (1) It will be guided in
acquiring real property, to the greatest extent practicable under State law,
by the land acquisition policies in SubpartB of 49 CFR Part24 and will pay or
reimburse property owners for necessary expenses as specified in SubpartB.
(2) It will provide a relocation assistance program offering the services
described in SubpartC and fair and reasonable relocation payments and
assistance to displaced persons as required in SubpartD and E of 49 CFR
Part24. (3) It will make available within a reasonable period of time prior
to displacement, comparable replacement dwellings to displaced persons in
accordance with SubpartE of 49 CFR Part24.
<PAGE>
EXHIBIT H
to
PREMISES AND FACILITIES LEASE
between
Global TransPark Foundation, Inc.
and
Mountain Air Cargo, Inc.
Dated as of November 16, 1995
______________________
Reverter to Grantor
REVERTER: All right, title, claim, and interest of Grantee to the property
conveyed herein and all improvements then located thereon shall revert, ipso
facto, to Grantor upon the happening of any of the events set out below, and
thereafter Grantee shall have no further right, title, claim, or interest in
such property or such improvements:
1.If Grantee shall fail to exercise the right of option contained in that
certain Option Agreement and Offer to Transfer dated October13, 1992, between
Grantor and Grantee, within the time limits specified therein, or any
extension thereof (hereinafter called the "Option Period"). With respect to
said Option and Agreement and Offer to Transfer, a Memorandum of Option to
Purchase is filed in Book962, at Page285, in the office of the Register of
Deeds of Lenoir County, North Carolina.
2.If, during the Option Period, Grantee, or its successor agency in function,
shall be dissolved or if the statutory purposes of Grantee, or its successor
agency in function, shall be changed substantially by action of the General
Assembly of North Carolina from those purposes set forth in N.C. Gen. Stat.
Chapter 63A, as the same may be amended from time to time.
3.If Grantee shall use the property conveyed herein for any purpose other than
aviation or aeronautical purposes as such terms may be interpreted, from time
to time, by the Federal Aviation Administration, or its successor agency in
function.
<PAGE>
EXHIBIT I
to
PREMISES AND FACILITIES LEASE
between
Global TransPark Foundation, Inc.
and
Mountain Air Cargo, Inc.
Dated as of November 16, 1995
______________________
Nondiscrimination in Airport
Employment Opportunities
The Company assures that it will comply with pertinent statutes, executive
orders and such rules as are promulgated to assure that no person shall, on
the grounds of race, creed, color, national origin, sex, age, or handicap be
excluded from participating in any activity conducted with or benefiting from
Federal assistance. This provision obligates the Company for the period
during which Federal assistance is extended to the Airport program, except
where Federal assistance is to provide, or is in the form of personal property
or real property or an interest therein or structures or improvements thereon.
In these cases, this provision obligates the Company for the longer of the
following periods: (a) the period during which the property is used by the
Foundation or any transferee for a purpose for which Federal assistance is
extended, or for another purpose involving the provision of similar services
or benefits; or (b) the period during which the Foundation or any transferee
retains ownership or possession of the property. In the case of contractors,
this provision binds the contractors from the bid solicitation period through
the completion of the contract
It is unlawful for airport operators and their lessees, tenants,
concessionaires and contractors to discriminate against any person because of
race, color, national origin, sex, creed, or handicap in public services and
employment opportunities.
<PAGE>
EXHIBIT J
to
PREMISES AND FACILITIES LEASE
between
Global TransPark Foundation, Inc.
and
Mountain Air Cargo, Inc.
Dated as of November 16, 1995
______________________
Disadvantaged Business Enterprises - Required Statements
Policy. It is the policy of the Department of Transportation that
disadvantaged business enterprises as defined in 49 CFR Part 23 shall have the
maximum opportunity to participate in the performance of leases as defined in
49 CFR Part 23.5. Consequently, these leases are subject to 49 CFR Part23 as
applicable.
Company Obligations. The Company hereby assures that no person shall be
excluded from participation in, denied the benefits of or otherwise
discriminated against in connection with the award and performance of any
contract, including leases, covered by 49 CFR Part 23 on the grounds of race,
color, national origin or sex.
Sublease Clause. The Company hereby assures that it will include the above
clauses in all subleases and cause sublessees to similarly include such
clauses in further subleases.
<PAGE>
EXHIBIT K
to
PREMISES AND FACILITIES LEASE
between
Global TransPark Foundation, Inc.
and
Mountain Air Cargo, Inc.
Dated as of November 16, 1995
______________________
KINSTON REGIONAL JETPORT - RULES& REGULATIONS
June21, 1994<PAGE>
EXHIBIT L
to
PREMISES AND FACILITIES LEASE
between
Global TransPark Foundation, Inc.
and
Mountain Air Cargo, Inc.
Dated as of November16, 1995
______________________
STATE OF NORTH CAROLINA
COUNTY OF LENOIR
MEMORANDUM OF LEASE
GLOBAL TRANSPARK FOUNDATION,INC. (hereinafter referred to as the "Foundation)
of Kinston, North Carolina, hereby leases to MOUNTAIN AIR CARGO,INC.
(hereinafter referred to as the "Company") of Denver, North Carolina, for a
term beginning on the Date of Beneficial Occupancy of the facilities
(hereinafter referred to as the "Facilities") to which reference is
hereinafter made (such date is expected to occur during the Fourth Quarter of
1996), and ending on the day next preceding the date which is twenty-one and
one-half (21.5) years thereafter (such date is expected to occur during the
Second Quarter of 2018), the premises described on Exhibit A-B hereto
(hereinafter referred to as the "Premises"), together with certain rights of
common use with others of the premises described on Exhibits A-A, A-C, A-D,
and A-E hereto, and the Facilities which will be constructed on the Premises,
subject to the Avigation Easement set forth on ExhibitF. The Premises and the
Facilities are hereinafter referred to collectively as the "Leased Property."
When the Facilities shall have been constructed, and on or about the Date of
Beneficial Occupancy, an amended Memorandum of Lease will be recorded setting
forth the exact dates of commencement and termination of this lease.
The terms and provisions set forth in the written lease between the parties
dated as of the 16th day of November, 1995, hereby are incorporated in this
memorandum, a copy of said lease being on file at the offices of Ward and
Smith,P.A., Attorneys at Law, 1001 College Court, New Bern, North
Carolina28562. Article III of said lease is set forth below in its entirety:
ARTICLE III
LEASE OF THE PREMISES AND THE FACILITIES
Section 3.1.Lease of Premises.
(a)The Foundation hereby leases to the Company, and the Company hereby leases
from the Foundation, the Premises, as more fully described in Exhibit A-B
hereto, for non-exclusive use by the Company on the terms and conditions set
forth in this Lease, including but not limited to the Foundation's agreement
to acquire, construct and equip the Facilities in accordance with Section 5.1
hereof and the Company's agreement to pay Lease Rental Payments to the
Foundation in accordance with Section 6.1 hereof. The Foundation expressly
reserves from the lease of the Premises (i) all water, gas, oil and mineral
rights in and under the soil, and (ii) the Avigation Easement set forth in
ExhibitF hereto.
(b)The Foundation hereby grants to the Company, its successors and assigns in
accordance with this Lease, an easement and right to use in common with the
Foundation those portions of the Foundation's Leasehold identified by the
letters "C" and "D" on ExhibitA hereto and described in ExhibitsA-C and A-D
hereto pursuant to the terms of this Lease. Such portion of the Foundation's
Leasehold identified by the letter "A" on ExhibitA hereto and described in
ExhibitA-A hereto shall be for the exclusive use of the Foundation, its
successors and assigns; subject, however, to the provisions of Section3.3
hereof.
(c)ExhibitA-C and ExhibitA-D, respectively, describe the east and west parking
areas, respectively, of the Foundation's Leasehold; the parking spaces in each
such area shall be designated by number. Assignment of the parking spaces, by
number, as between the Company and the Foundation shall be determined by
mutual agreement of the Authorized Representatives (as hereinafter defined);
and, thereafter, such parking places, excluding, however, access thereto,
shall become designated for exclusive use by the Company or by the Foundation,
as the case may be.
(d)The parcel described in ExhibitA-C hereto includes some of the landscaped
portions of the Foundation's Leasehold. Subject to the provisions of
Section8.12 hereof, the area in which signs may be erected by the Company,
with the prior consent of the Foundation, will be in the parcel identified by
the letter "C" on ExhibitA hereto.
(e)The Foundation and the Company acknowledge that the descriptions in
ExhibitA, Exhibit A-A, ExhibitA-B, ExhibitA-C, ExhibitA-D, ExhibitA-E, and
ExhibitC hereto on the date of commencement of the term of this Lease are
approximate and that, following completion of the "as-built" survey, exact
metes and bounds descriptions for each such parcel shall be provided and
substituted by the Foundation as revised Exhibits with the same designations
without the requirement of a formal amendment to this Lease. Thereafter, such
Exhibits hereto shall be revised from time to time to reflect additions to,
deletions from, and changes in, the Foundation's Leasehold, including, without
limitation, the Premises, if any, made in accordance with this Lease.
Section 3.2.Lease of Facilities; Option for Additional Space.
(a)The Foundation hereby leases to the Company, and the Company hereby leases
from the Foundation, the Facilities to be constructed in accordance with the
Specifications and Drawings referred to in ExhibitB, for non-exclusive use by
the Company, on the terms and conditions set forth in this Lease, including
but not limited to the Foundation's agreement to acquire, construct, install
and equip the Facilities in accordance with Section 5.1 hereof and the
Company's agreement to pay Lease Rental Payments to the Foundation in
accordance with Section6.1 hereof. The Facilities shall consist of the
building, improvements and any equipment constructed, installed and otherwise
acquired pursuant to Article V hereof and any property classified as a fixture
under applicable law. The Facilities shall not include the Company Property
acquired and installed by the Company pursuant to Section8.8 hereof.
(b)ExhibitsB-1, B-2, and B-3 hereto are drawings of the Hangar; and ExhibitB-4
is a table showing a square footage calculation of the several areas of the
Hangar. The areas shown in Exhibits B-1, B-2 and B-3 hereto in the color blue
shall be for the exclusive use of the Company, its successors and assigns in
accordance with this Lease; the areas shown in the color green shall be for
the common use of the Company and the Foundation pursuant to the terms of this
Lease; and the areas shown in the color yellow shall be for the exclusive use
of the Foundation, its successors and assigns; subject, however, to the
provisions of subparagraph(c) of this Section3.2.
(c)The Foundation hereby grants to the Company an option to lease
approximately five thousand eight hundred (5,800) square feet of the space
within the Facilities shown in the color yellow on Exhibit B-2 hereto and
described in ExhibitD hereto for the acquisition, construction, installation
and equipping of additional facilities relating to or used in connection with
the Facilities, so long as the Company is not in default under this Lease at
the time it exercises such option. In order to exercise such option, the
Company shall notify the Foundation on or before September1, 2004, that it
intends to exercise such option and the Foundation and the Company shall enter
into an amendment to this Lease or a separate lease on or before August31,
2005, to provide, among other things, for the leasing of such additional space
for a term commencing not later than September1, 2005. If the Company does
not exercise such option within the period set forth in this Section 3.2(c),
all rights of the Company under the option set forth in this Section 3.2(c)
shall terminate.
(d)The term of lease of the additional space referred to in subsection(c) of
this Section3.2 shall commence on the date of execution of an amendment to
this Lease or a separate lease (unless otherwise provided therein), as
contemplated in subsection(c) of this Section3.2, and shall terminate on the
date of termination of this Lease. If the Company shall exercise the option
set forth in subsection(c) of this Section3.2, the Company shall pay to the
Foundation the Expanded Facilities Rentals described in Section6.2 hereof.
(e)The Foundation shall place, or cause to be placed, on each item of
equipment constituting Facilities a permanent nameplate, made of a suitable
material, identifying the ownership interest of the Foundation in such item as
follows: "OWNED BY GLOBAL TRANSPARK FOUNDATION, INC., KINSTON, NORTH
CAROLINA." The Company shall not allow the name of any person other than the
Foundation to be placed on any item of equipment constituting Facilities as a
designation that might be interpreted as a claim of ownership or any interest
therein; provided, however, that nothing herein contained shall prohibit the
Company from placing its customary colors and insignia on any such property
customarily exposed to public view.
(f)The Facilities shall be described in the Specifications and Drawings
referred to in Exhibit B hereto in such detail as to enable an engineer not
otherwise familiar with the Leased Property to identify and locate the various
components of the Facilities which are not subject to a separate lease.
Exhibit B shall be revised from time to time to reflect additions to,
deletions from, and changes in, the Facilities made in accordance with this
Lease.
(g)The Foundation and the Company acknowledge that the Specifications and
Drawings referred to in Exhibit B and the delineations shown on ExhibitB-1,
ExhibitB-2, ExhibitB-3, the data shown on ExhibitB-4, and the description in
ExhibitD hereto on the date of commencement of the term of this Lease are
approximate and that, following completion of construction of the Hangar,
revised drawings, data, and descriptions of the Facilities shall be provided
and substituted by the Foundation as revised Exhibits with the same
designations without the requirement of a formal amendment to this Lease.
Thereafter, such Exhibits hereto shall be revised from time to time to
reflect additions to, deletions from, and changes in, the Facilities made in
accordance with this Lease.
Section 3.3.Access. Subject to any rules and regulations heretofore or
hereafter adopted and promulgated by the Airport Sponsors or the Authority, as
the case may be, regarding the Airport, including, without limitation, any
nondiscriminatory rules and regulations governing entrance to and use of the
Airport, the Foundation shall provide the Company, subject to the provisions
of Section3.4 hereof, the non-exclusive use of roadways, driveways, walkways,
or other rights-of-way for the purposes of ingress, egress, regress, access,
the installation and maintenance of utilities, and further subdivision, over
or through the parcel identified by the letter "A" on ExhibitA hereto and
described in ExhibitA-A hereto, the parcel identified by the letter "B" on
ExhibitA hereto and described in ExhibitA-B hereto, the parcel identified by
the letter "C" on ExhibitA hereto and described in ExhibitA-C hereto, the
parcel identified by the letter "D" on ExhibitA hereto and described in
ExhibitA-D hereto, and the parcel identified by the letter "E" on ExhibitA
hereto and described in ExhibitA-E hereto, for the Company's employees,
agents, guests, patrons, and invitees, its or their suppliers of materials and
furnishers of service, and its or their equipment, vehicles, machinery and
other property; and no fee, charge or toll shall be charged directly or
indirectly for access rights.
Section 3.4.Modification of Access Route. The Foundation may, at any time,
temporarily or permanently, close, modify, alter, change the location of,
consent to or request the closing of, any roadway, driveway, walkway, or other
right-of-way for such ingress, egress, regress, and access over or through any
property owned or controlled by the Foundation, or as to which the Foundation
has such an easement, and any other area at the Airport or in its environs
presently or hereafter used as such, so long as a means of ingress, egress,
regress, and access reasonably equivalent to that formerly provided is
substituted therefor and concurrently is made available therefor. The Company
hereby releases and discharges the Foundation, the Airport Sponsors, or the
Authority, as the case may be, of and from any and all claims, demands or
causes of action which the Company now, or at any time hereafter, may have
against the Foundation, the Airport Sponsors, or the Authority, as the case
may be, arising or alleged to have arisen out of the closing of any roadway,
driveway, walkway, or other right-of-way for such ingress, egress, regress,
and access, or other area at the Airport or in its environs used as such, so
long as the Foundation, the Airport Sponsors, or the Authority, as the case
may be, makes available a means of ingress, egress, regress, and access
reasonably equivalent to that existing prior to each such modification, if
any.
Section 3.5.Right of First Refusal for Additional Premises. The Foundation
agrees not to lease or to permit the use of (i)all or any portion of the
additional land comprising the Foundation's Leasehold shown on ExhibitA hereto
(other than the Premises) or (ii)all or any portion of the Expansion Parcel,
as to which the Foundation has a right of first refusal, on or prior to
September1, 2005, unless the Foundation shall first have given written notice
to the Company stating the Foundation's intention to do so and setting forth a
description of the terms and conditions of such lease or permit. For a period
of one hundred twenty (120) days following the giving of the Foundation's
notice of intention to the Company, the Company shall have the option to lease
the additional land described in such notice on the terms and conditions set
forth in such notice so long as the Company is not in default under this Lease
at the time it exercises such option. In order to exercise such option, the
Company shall notify the Foundation not later than the forty-fifth (45th) day
within such one hundred twenty (120) day period that it intends to exercise
such option and the Foundation and the Company shall enter into an amendment
to this Lease or a separate lease not later than the expiration of such one
hundred-twenty (120) day period to provide, among other things, for the
leasing of such additional land. If the Company does not exercise such option
within the period set forth in this Section 3.5, all rights of the Company
under the right of first refusal set forth in this Section 3.5 shall
terminate.
In the event that the Company shall exercise the right of first refusal
granted by this Section3.5, nothing contained in this Section3.5 or elsewhere
in this Lease shall, nor shall any such thing be deemed or construed to,
obligate the Foundation to make any improvement to, or to construct any
facilities on, the Expansion Parcel.
IN TESTIMONY WHEREOF, the parties hereto have executed this instrument under
seal, this the _____ day of _____________, 199___.
GLOBAL TRANSPARK FOUNDATION, INC.
By:_______________________________________
C. Felix Harvey
President
ATTEST:
____________________________________
William T. Powell, Jr.
Assistant Secretary
[CORPORATE SEAL]
MOUNTAIN AIR CARGO, INC.
By:_______________________________________
J. Hugh Bingham
Executive Vice President
ATTEST:
____________________________________
John J. Gioffre
Secretary
[CORPORATE SEAL]<PAGE>
STATE OF NORTH CAROLINA
COUNTY OF
I, _____________________________________, a Notary Public in and for said
County and State, do hereby certify that on the _____ day of , 199__,
before me personally appeared C. FELIX HARVEY with whom I am personally
acquainted, who, being by me duly sworn, says that he is President and that
WILLIAMT. POWELL, JR. is an Assistant Secretary of GLOBAL TRANSPARK
FOUNDATION, INC., the corporation described in and which executed the
foregoing instrument; that he knows the common seal of said corporation; that
the seal affixed to the foregoing instrument is said common seal; that the
name of the corporation was subscribed thereto by said President; that said
President and said Assistant Secretary subscribed their names thereto and said
common seal was affixed, all by order of the Board of Directors of said
corporation; and that said instrument is the act and deed of said corporation.
WITNESS my hand and notarial seal, this the ___ day of ____________________,
199__.
_______________________________________
Notary Public
_______________________________________
(Printed Signature)
My Commission Expires: _____________________
[Notarial Seal]
<PAGE>
STATE OF NORTH CAROLINA
COUNTY OF
I, _____________________________________, a Notary Public in and for said
County and State, do hereby certify that on the _____ day of , 1995,
before me personally appeared J.HUGH BINGHAM with whom I am personally
acquainted, who, being by me duly sworn, says that he is Executive Vice
President and that JOHNJ. GIOFFRE is Secretary of MOUNTAIN AIR CARGO, INC.,
the corporation described in and which executed the foregoing instrument; that
he knows the common seal of said corporation; that the seal affixed to the
foregoing instrument is said common seal; that the name of the corporation was
subscribed thereto by said Executive Vice President; that said Executive Vice
President and said Secretary subscribed their names thereto and said common
seal was affixed, all by order of the Board of Directors of said corporation;
and that said instrument is the act and deed of said corporation.
WITNESS my hand and notarial seal, this the ___ day of ________________, 1995.
_______________________________________
Notary Public
_______________________________________
(Printed Signature)
My Commission Expires: _____________________
[Notarial Seal]
<PAGE>
EXHIBIT A-A
to
PREMISES AND FACILITIES LEASE
between
Global TransPark Foundation, Inc.
and
Mountain Air Cargo, Inc.
Dated As of November 16, 1995
______________________________________________________________________________
_
Parcel A
All that certain tract or parcel of land lying and being situate in Vance
Township, Lenoir County, North Carolina, being described more particularly as
follows:
Beginning at a point in the centerline of John Mewborne Road (NCSR1581) marked
by an existing iron pipe, which point is located the following course and
distance from North Carolina Geodetic Survey Monument "Vacant 1967," said
monument having North Carolina Grid Coordinates of N=577,680.609 and E=
2,416,154.505: North 24 47' 22" East 1010.23feet. Thence from said point of
beginning so located, North 49 41' 53" West 221.38feet to a point; thence
North 22 26' 30" West 37.93feet to a point; thence North40 18' 06" East
137.67feet to a point; thence South 29 18' 43" East 102.92feet to a point;
thence North 85 18' 10" East 49.38feet to a point; thence South 49 41' 53"
East 25.08feet to a point; thence North 40 18' 10" East 14.39feet to a point;
thence South 49 41' 59" East 29.09feet to a point; thence along and with a
curve to the right having a delta angle of 20 30' 00", a radius of 149.00feet,
a tangent of 26.94feet, and an arc length of 53.31feet, a chord bearing and
distance of South 39 26' 57" East 53.03feet to a point; thence South 29 12'
04" East 20.88feet to a point; thence along and with a curve to the right
having a delta angle of 90 31' 10", a radius of 40.00feet, a tangent of
40.36feet, and an arc length of 63.19feet, a chord bearing and distance of
South 16 03' 31" West 56.82feet to a point; thence South 28 40' 52" East
12.00feet to a point in the centerline of John Mewborne Road; thence along and
with the centerline of John Mewborne Road South 61 19' 08" West 102.45 feet to
the point of beginning.
<PAGE>
EXHIBIT A-B
to
PREMISES AND FACILITIES LEASE
between
Global TransPark Foundation, Inc.
and
Mountain Air Cargo, Inc.
Dated As of November 16, 1995
______________________________________________________________________________
_
Parcel B
All that certain tract or parcel of land lying and being situate in Vance
Township, Lenoir County, North Carolina, being described more particularly as
follows:
Beginning at a point in the centerline of John Mewborne Road (NCSR1581), which
point is located the following courses and distances from North Carolina
Geodetic Survey Monument "Vacant1967," said monument having North Carolina
Grid Coordinates of N=577,680.609 and E=2,416,154.505: North 24 47' 22" East
1010.23feet and North 61 19' 08" East 102.45feet. Thence from said point of
beginning so located, North 28 40' 52" West 12.00feet to a point; thence along
and with a curve to the left having a delta angle of 90 31' 10", a radius of
40.00feet, a tangent of 40.36feet, and an arc length of 63.19feet, a chord
bearing and distance of North 16 03' 31" East 56.82feet to a point; thence
North 29 12' 04" West 20.88feet to a point; thence along and with a curve to
the left having a delta angle of 20 30' 00", a radius of 149.00feet, a tangent
of 26.94feet, and an arc length of 53.31feet, a chord bearing and distance of
North 39 26' 57" West 53.03feet to a point; thence North 49 41' 59" West
29.09feet to a point; thence South 40 18' 10" West 14.39feet to a point;
thence North 49 41' 53" West 25.08feet to a point; thence South 85 18' 10"
West 49.38feet to a point; thence North 29 18' 43" West 102.92feet to a point;
thence North40 18' 06" East 416.96feet to a point; thence South 49 41' 52"
East 183.17feet to a point; thence South 40 18' 06" West 37.00feet to a point;
thence South 49 42' 08" East 14.33feet to a point; thence South 40 18' 06"
West 100.04feet to a point; thence South 49 41' 45" East 15.00feet to a point;
thence South 40 18' 06" West 34.92feet to a point; thence North 49 41' 53"
West 15.00feet to a point; thence South 40 18' 06" West 100.04 feet to a
point; thence North 49 41' 53" West 47.50feet to a point; thence South 40 18'
09" West 80.50feet to a point; thence along and with a curve to the left
having a delta angle of 89 59' 49", a radius of 25.00feet, a tangent of
25.00feet, and an arc length of 39.27feet, a chord bearing and distance of
South 04 41' 54" East 35.36feet to a point; thence South 49 41' 54" East
10.57feet to a point; thence along and with a curve to the right having a
delta angle of 20 20' 16", a radius of 175.00feet, a tangent of 31.65feet, and
an arc length of 62.61feet, a chord bearing and distance of South 39 26' 57"
East 62.28feet to a point; thence South 29 11' 57" East 21.84feet to a point;
thence along and with a curve to the left having a delta angle of 89 28' 56",
a radius of 40.00feet, a tangent of 39.64feet, and an arc length of 62.47feet,
a chord bearing and distance of South 73 56' 21" East 56.31feet to a point;
thence South 28 40' 52" East 12.00 feet to a point in the centerline of John
Mewborne Road; thence along and with the centerline of John Mewborne Road
South 61 19' 08" West 106.00 feet to the point of beginning.<PAGE>
EXHIBIT A-C
to
PREMISES AND FACILITIES LEASE
between
Global TransPark Foundation, Inc.
and
Mountain Air Cargo, Inc.
Dated As of November 16, 1995
______________________________________________________________________________
_
Parcel C
All that certain tract or parcel of land lying and being situate in Vance
Township, Lenoir County, North Carolina, being described more particularly as
follows:
Beginning at a point in the centerline of John Mewborne Road (NCSR1581), which
point is located the following courses and distances from North Carolina
Geodetic Survey Monument "Vacant1967," said monument having North Carolina
Grid Coordinates of N=577,680.609 and E= 2,416,154.505: North 24 47' 22" East
1010.23feet and North 61 19' 08" East 208.45 feet. Thence from said point of
beginning so located, North 28 40' 52" West 12.00feet to a point; thence along
and with a curve to the right having a delta angle of 89 28' 56", a radius of
40.00feet, a tangent of 39.64feet, and an arc length of 62.47feet, a chord
bearing and distance of North 73 56' 21" West 56.31feet to a point; thence
North 29 11' 57" West 21.84feet to a point; thence along and with a curve to
the left having a delta angle of 20 20' 16", a radius of 175.00feet, a tangent
of 31.65feet, and an arc length of 62.61feet, a chord bearing and distance of
North 39 26' 57" West 62.28feet to a point; thence North 49 41' 54" West
10.57feet to a point; thence along and with a curve to the right having a
delta angle of 89 59' 49", a radius of 25.00feet, a tangent of 25.00feet, and
an arc length of 39.27feet, a chord bearing and distance of North 04 41' 54"
West 35.36feet to a point; thence North 40 18' 09" East 80.50feet to a point;
thence South 49 41' 53" East 47.50feet to a point; thence North 40 18' 06"
East 100.04feet to a point; thence South 49 41' 53" East 15.00feet to a point;
thence North 40 18' 06" East 34.92feet to a point; thence North 49 41' 45"
West 15.00feet to a point; thence North 40 18' 06" East 100.04 feet to a
point; thence North 49 42' 08" West 14.33feetto a point; thence North 40 18'
06" East 37.00feet to a point; thence South 49 41' 52" East 239.57feet to a
point; thence along and with a curve to the right having a delta angle of 111
52' 48", a radius of 30.00feet, a tangent of 44.38feet, and an arc length of
58.58feet, a chord bearing and distance of South 06 14' 38" West 49.71feet to
a point; thence South 27 48' 52" East 12.00 feet to a point in the centerline
of John Mewborne Road; thence along and with the centerline of John Mewborne
Road South 62 11' 08" West 271.16 feet to a point in the centerline of John
Mewborne Road marked by an existing iron pipe; thence continuing along and
with the centerline of John Mewborne Road South 61 19' 08" West 85.85feet to
the point of beginning.<PAGE>
EXHIBIT A-D
to
PREMISES AND FACILITIES LEASE
between
Global TransPark Foundation, Inc.
and
Mountain Air Cargo, Inc.
Dated As of November 16, 1995
______________________________________________________________________________
_
Parcel D
All that certain tract or parcel of land lying and being situate in Vance
Township, Lenoir County, North Carolina, being described more particularly as
follows:
Beginning at a point in the centerline of John Mewborne Road (NCSR1581), which
point is located the following courses and distances from North Carolina
Geodetic Survey Monument "Vacant1967," said monument having North Carolina
Grid Coordinates of N=577,680.609 and E= 2,416,154.505: North 24 47' 22" East
1010.23feet, North 61 19' 08" East 294.30feet, and North 62 11' 08" East
363.84feet. Thence from said point of beginning so located, North 27 48' 52"
West 12.00feet to a point; thence along and with a curve to the right having a
delta angle of 68 07' 15", a radius of 30.00feet, a tangent of 20.28feet, and
an arc length of 35.67feet, a chord bearing and distance of North 83 45' 28"
West 33.60feet to a point; thence North 49 41' 52" West 260.16feet to a point;
thence North 40 18' 05" East 367.02feet to a point; thence South 49 41' 53"
East 440.80feet to a point in the centerline of John Mewborne Road marked by a
new iron pipe; thence along and with the centerline of John Mewborne Road
South 62 11' 08" West 380.06feet to the point of beginning.<PAGE>
EXHIBIT A-E
to
PREMISES AND FACILITIES LEASE
between
Global TransPark Foundation, Inc.
and
Mountain Air Cargo, Inc.
Dated As of November 16, 1995
______________________________________________________________________________
_
Parcel E
All that certain tract or parcel of land lying and being situate in Vance
Township, Lenoir County, North Carolina, being described more particularly as
follows:
Beginning at a point in the centerline of John Mewborne Road (NCSR1581), which
point is located the following courses and distances from North Carolina
Geodetic Survey Monument "Vacant1967," said monument having North Carolina
Grid Coordinates of N=577,680.609 and E=2,416,154.505: North 24 47' 22" East
1010.23feet, North 61 19' 08" East 294.30feet, and North 62 11' 08" East
271.16feet. Thence from said point of beginning so located, North 27 48' 52"
West 12.00feet to a point; thence along and with a curve to the left having a
delta angle of 111 52' 48", a radius of 30.00feet, a tangent of 44.38feet, and
an arc length of 58.58feet, a chord bearing and distance of North 06 14' 38"
East 49.71 feet to a point; thence North 49 41' 52" West 422.74feet to a
point; thence North 40 18' 06" East 26.00feet to a point; thence South 49 41'
52" East 457.28feet to a point; thence along and with a curve to the left
having a delta angle of 68 07' 15", a radius of 30.00feet, a tangent of
20.28feet, and an arc length of 35.67feet, a chord bearing and distance of
South 83 45' 28" East 33.60feet to a point; thence South 27 48' 52" East
12.00feet to a point in the centerline of John Mewborne Road; thence along and
with the centerline of John Mewborne Road South 62 11' 08" West 92.68feet to
the point of beginning.<PAGE>
EXHIBIT C
to
PREMISES AND FACILITIES LEASE
between
Global TransPark Foundation, Inc.
and
Mountain Air Cargo, Inc.
Dated As of November 16, 1995
______________________
Additional Parcel Subject to Right of First Refusal
Parcel G
All that certain tract or parcel of land lying and being situate in Vance
Township, Lenoir County, North Carolina, being described more particularly as
follows:
Beginning at a point which is located the following courses and distances from
North Carolina Geodetic Survey Monument "Vacant1967," said monument having
North Carolina Grid Coordinates of N=577,680.609 and E=2,416,154.505: North
24 47' 22" East 1,010.23feet, North 61 19' 08" East 294.30feet, North 62 11'
8" East 743.91feet and North 49 41' 53" West 440.80feet to the point of
beginning. Thence from this point of beginning so located continuing North 49
41' 53" West 197.11feet to a point; thence South 40 18' 06" West 185.01 Feet
to a point; thence South 49 41' 52" East 197.12 feet to a point; thence North
40 18' 05" East 367.02feet to the point of beginning.<PAGE>
EXHIBIT D
to
PREMISES AND FACILITIES LEASE
between
Global TransPark Foundation, Inc.
and
Mountain Air Cargo, Inc.
Dated as of November 16, 1995
______________________
Additional Space Subject to Option to Lease
The additional space subject to option pursuant to Section3.2(c), of the Lease
to which this ExhibitD is attached, consist of those areas shown in the color
yellow on ExhibitB-2 to the Lease (being in the aggregate approximately five
thousand eight hundred (5,800) square feet), together with use of the common-
use areas shown in the color green on ExhibitsB-1, B-2 and B-3 to the Lease;
excluding, however, the additional ten thousand(10,000) square feet of space
on the mezzanine level which is suitable only for storage space.
<PAGE>
EXHIBIT F
to
PREMISES AND FACILITIES LEASE
between
Global TransPark Foundation, Inc.
and
Mountain Air Cargo, Inc.
Dated as of November 16, 1995
______________________
Avigation Easement
AVIGATION EASEMENT: Grantor, for itself, its successors, and assigns, for the
benefit of the public in its use of the Kinston Regional Jetport, hereby
reserves and retains a right of flight in the airspace above the tract or
parcel of land described on ExhibitA hereto for the passage of aircraft
operated in a non-negligent manner overflying, landing at, or taking off from,
the Kinston Regional Jetport, together with the right to cause to emanate from
such aircraft upon such land and any improvements thereon, and in the air
space above such land, such noise as may now or hereafter be incident to the
non-negligent operation of aircraft overflying, landing at, or taking off
from, the Kinston Regional Jetport.
Without in anyway derogating from the generality of the foregoing paragraph,
the Grantor, for itself, its successors, and assigns, hereby reserves and
retains an avigation easement over the tract or parcel of land described on
ExhibitA hereto for the purpose of establishing, constructing, maintaining,
and operating one or more air navigation systems or instrument landing systems
of a kind now in use, or hereafter devised for use, at or in connection with
the Kinston Regional Jetport; such avigation easement reserves to and retains
in Grantor, it successors, and assigns, for the benefit of the public in its
use of such airport, certain rights and privileges, and denies to Grantee, its
successors, and assigns, certain rights and privileges, as follows:
1.Grantee, its successors, and assigns, shall not hereafter erect, or permit
the erection, or growth of, any structure, tree, or other object on any
portion of the tract or parcel of land described on ExhibitA hereto which lies
within any enroute flight area, clear zone approach area, transitional area,
or any other areas designated by application, from time to time, of the
criteria of the Federal Aviation Administration, or its successor agency in
function, over which any air navigation or instrument landing system may now
or hereafter be in service, required, convenient, or advisable for effective
and safe operation of aircraft overflying, landing at, or taking off from, the
Kinston Regional Jetport, to a height above the ground which would interfere
with, or present a safety hazard to, aircraft overflying landing at, or taking
off from, the Kinston Regional Jetport, or otherwise as may be required by, or
recommended in, any statute, regulation, or agreement applicable to the
Kinston Regional Jetport.
2.Grantor, itself and its successors, and assigns, and their agents, servants,
and employees shall have a continuing right and easement: (a)to take any
action necessary to prevent the erection, or growth, of any structure, tree,
or other object into the airspace referred to in Paragraph1 above, above such
land, designated as a part of any such air navigation or instrument landing
system, and to remove from such airspace, or mark and light as obstructions to
air navigation, any and all structures, trees, or other objects that may at
any time, or from time to time, project or extend above such land and into
such airspace, together with a right of ingress to, egress from, and passage
over such land for such purposes; and (b)to cut at any time, or from time to
time, to a level measured twelve(12) inches above the ground any and all trees
growing, or which may grow, upon such land and, at the election of Grantor,
its successors and assigns, to leave such trees so cut upon such land or to
remove them and to sell such trees. The proceeds of the sale of such trees,
after deducting the costs of cutting and removal, shall be paid to Grantee,
its successors and assigns; and for such purpose, Grantor, for itself, its
successors, and assigns hereby reserves and retains the right of ingress to
and egress from, and passage over such land. In the exercise of its right
hereunder, Grantor, its successors, and assigns, shall not be responsible or
liable for loss or cost of any structure, tree, or other object so removed or
prevented from being erected or growing, except that Grantee, its successors,
and assigns, shall be entitled to the net sales price for any trees removed as
provided above; provided, however, Grantor shall be responsible and liable for
any damage to such land and any improvements thereon caused by the exercise of
its rights reserved hereunder to the extent that such damage shall exceed the
normal damage incident to the exercise of such rights.
Grantor, its successors and assigns, shall hold this avigation easement and
all rights reserved or retained herein until Kinston Regional Jetport shall be
abandoned and shall cease to be used for purposes of a public airport.
This avigation easement and rights reserved and retained herein shall run with
the land, and any portion of such land, which lies beneath the airspace
referred to herein shall be the servient tenement and the Kinston Regional
Jetport shall be the dominant tenement.
By its acceptance of the conveyance of the property conveyed herein, Grantee,
for itself and its successors, and assigns, hereby releases Grantor, its
successors, and assigns, from any and all claims, liabilities, or causes of
actions that it has or it or they will have against Grantor, its successors,
and assigns, on account of noise emanating upon the property conveyed herein
and any improvements thereon which may now or hereafter may be incident to the
non-negligent operation of aircraft overflying, landing at, or taking off
from, the Kinston Regional Jetport, as well as any claim, liability, or cause
of action for inverse condemnation arising out of the non-negligent operation
of aircraft overflying, landing at, or taking off from, the Kinston Regional
Jetport
