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EXHIBIT 10.30
FORT XXXXX-XXXXX COUNTY AIRPORT AUTHORITY
GROUND LEASE
This Ground Lease, made and entered into as of the 13th day of April,
1998, by and between FORT XXXXX-XXXXX COUNTY AIRPORT AUTHORITY, an Indiana
municipal corporation ("Landlord"), and KITTY HAWK, INC., a Delaware corporation
duly admitted to do business in the State of Indiana, ("Tenant");
WITNESSETH THAT, in consideration of the rents, covenants and
agreements hereinafter set forth, such parties enter into the following
agreement:
ARTICLE I
DEFINITIONS AND EXHIBITS
Section 1.1 Definitions.
In addition to the words and terms elsewhere defined in this Lease, the
following words and terms as used in this Lease shall have the following
meanings unless the context or use indicates another or different meaning or
intent and such definitions shall be equally applicable to both the singular and
plural forms of any of the words and terms herein defined.
"Airport Use and Lease Agreement" shall mean the agreement from time to
time in effect between the Landlord and all Signatory Airlines.
"Bonds" means the Fort Xxxxx International Airport Air Trade Center
Building Corp. First Mortgage Improvement Bonds, Series 1998.
"Building Corp." means the Fort Xxxxx International Airport Air Trade
Center Building Corp.
"Buildings" means all of the improvements to be constructed pursuant to
Article IV of the Building Lease.
"Building Lease" means that certain building lease entered into by and
between Landlord and Tenant on even date herewith.
"Project" means the American International Freight Central Cargo Hub,
consisting in part of aircraft maintenance, cargo sort, and related facilities,
the real, personal or real and personal property identified in Exhibit "C"
hereto or in or pursuant to any amendments hereto or in the certificate given
pursuant to Section 4.3 hereof, or acquired, constructed or installed as
replacement or substitution therefor or addition thereto.
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"Operating Agreement" means that certain operating agreement entered
into by and between Landlord and Tenant on even date herewith.
"Use and Lease Agreement" means that certain use and lease agreement
entered into by and between Landlord and Tenant on even date herewith.
Section 1.2 Exhibits.
The exhibits listed below and attached to this Lease are incorporated
herein by this reference:
Exhibit "A" Description of the premises herein demised to Tenant.
Exhibit "B" Phase I Environmental Site Assessment Report with respect
to the Premises to be furnished by the Landlord.
Exhibit "C" Description of the Expansion Real Estate, as described in
Article III herein.
ARTICLE II
LEASED PREMISES AND TERM
Section 2.1 Leased Premises.
Landlord herein leases to Tenant and Tenant hereby rents from Landlord
the real property described in Exhibit "A" to this Lease (hereinafter called
"the Premises"), under the terms set forth in this Lease.
Section 2.2 Lease Term.
The term of this Lease (the "Lease Term") shall commence on the earlier
of the following dates:
(a) The Completion Date as provided for in the Building Lease,
or
(b) The date upon which the Tenant takes possession of the
Premises,
which date is hereinafter referred to as the "Commencement Date."
Notwithstanding the foregoing, in no event, other than upon the occurrence of an
event described in Section 22.6 below, shall the Commencement Date be later than
July 1, 1999.
The term of this Lease shall cease at the termination of the term of
the Building Lease.
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Section 2.3 Possession Prior to Commencement Date.
If, by mutual consent of the parties, Tenant takes possession of the
Premises prior to the Commencement Date, then during such pre-term period,
Tenant shall pay the rent as herein established on a pro-rata basis and such
occupancy shall be under all of the terms and conditions of this Lease, but such
pre-term occupancy shall not affect the Lease Term as herein otherwise
established.
ARTICLE III
TENANT OPTIONS
Section 3.1 Tenant's Option to Expand the Leased Premises.
At any time during the first ten (10) years of the initial lease term
and so long as Tenant is not in default under the terms of the Ground Lease, the
Building Lease, the Operating Agreement, or the Airport Use and Lease Agreement,
and subject to the condition that the tenant is then operating an aeronautically
related activity on the Real Estate, the Tenant shall have an option to lease an
expansion area of real estate which consists of the Northeast one-half (1/2) of
Lot A-9, as described in Exhibit "C" attached hereto, to the Fort Xxxxx
International Airport Air Trade Center, consisting of 14 acres, more or less, in
order to permit the Tenant to expand their ramp and sort hub facility and to
connect with Taxiway Tango when constructed by the Landlord (the "Expansion Real
Estate"). The right of the Tenant to exercise the option to lease is conditioned
upon the payment by the Tenant to the Landlord of the sum of Six Thousand Seven
Hundred Dollars ($6,700) on July 1, 1999, and a like sum on or before the first
day of July of each and every year thereafter through July 1, 2009.
Any portion of the Expansion Real Estate which is acquired by the
Tenant pursuant to this Section 3.1 shall become part of the Premises leased to
the Tenant under this Agreement and shall be added to and incorporated as a part
of Exhibit "A" hereto. In such event, the Minimum Monthly Rent shall be
adjusted, as of the date said notice is received by the Landlord. Said
adjustment shall be calculated by dividing the Minimum Monthly Rent at that time
by 1,603,704.90. The quotient shall be multiplied by the number of square feet
in the Expansion Real Estate. The product will then be added to the Minimum
Monthly Rent then in effect to produce the new Minimum Monthly Rent. Such
adjusted Minimum Monthly Rent shall then be effective until the next adjustment
pursuant to this Section 4.1.
Section 3.2 Rights of First Refusal.
Tenant shall have the following rights of first refusal:
(a) Tenant has made each of the ten (10) payments contemplated
by Section 3.1 above, and so long as Tenant is not in default under the
terms of the Ground Lease, the Building Lease, the Operating Agreement,
or the Airport Use and Lease Agreement, and subject to the condition
that the tenant is then operating an
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aeronautically related activity on the Real Estate, Tenant shall have,
during the second ten (10) years of the Lease Term, a right of first
refusal to lease the Expansion Real Estate. In the event that the
Landlord receives a written initial proposal for the lease of the
Expansion Real Estate to any third party, the Landlord shall forthwith
notify the Tenant of the terms and conditions of such initial proposal
to lease and, thereafter for a period of forty-five (45) days, the
Tenant shall have the right of first refusal to lease the Expansion
Real Estate upon terms and conditions which are mutually acceptable.
(b) If Tenant fails to make any of the ten (10) payments
contemplated by Section 3.1 above, Tenant shall have, during the first
ten (10) years of the Initial Lease Term, a right of first refusal to
lease the Expansion Real Estate. In the event that the Landlord
receives a written initial proposal for the lease of the Expansion Real
Estate to any third party, the Landlord shall forthwith notify the
Tenant of the terms and conditions of such initial proposal to lease
and, thereafter for a period of forty-five (45) days, the Tenant shall
have the right of first refusal to lease the Expansion Real Estate upon
terms and conditions which are mutually acceptable.
ARTICLE IV
RENT AND DEPOSIT
Section 4.1 Minimum Rent.
Tenant covenants and agrees to pay Landlord, without deduction,
abatement or setoff of any nature whatsoever, as rent for the Premises only, the
sum of One Hundred Seventy-six Thousand Four Hundred Eight Dollars ($176,408)
per year (36.816 acres x 43,560 square feet x .11 per square foot) (hereinafter
"Minimum Term Rent"). Minimum Term Rent shall be payable in equal monthly
installments of Fourteen Thousand Seven Hundred One Dollars ($14,701) in advance
without demand on the first day of each and every calendar month throughout the
term of this Lease (hereinafter referred to as "Minimum Monthly Rent"). If the
Commencement Date is not the first day of a calendar month, then Tenant shall
pay rent at the rate herein established on a pro-rata basis for the number of
days' tenancy during such initial month and shall thereafter make rent payments
on the first day of each calendar month, with a like adjustment for the final
month of the Lease Term, if applicable. The rent shall be payable without relief
from valuation and appraisement laws at the office of the Landlord, whose
address is stated in Section 22.18.
On each anniversary date of the Lease during the Lease Term, the
Minimum Monthly Rent shall be adjusted, based upon the adjustment in the
Consumer Price Index (All Urban Consumers) or, if there shall be no such
Consumer Price Index, then in the successor of the most nearly comparable
successor index thereto ("Index Figure") by multiplying the Minimum Monthly Rent
by a fraction, the numerator being the Index Figure for the month of December
preceding the anniversary date of the Lease, and the denominator being the Index
Figure for the month of December preceding the Commencement Date. This figure,
as calculated, shall become the
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Minimum Monthly Rent for the Lease Term, subject to additional annual adjustment
as described below.
Thereafter, on each succeeding anniversary date, the Minimum Monthly
Rent shall be adjusted by multiplying the Minimum Monthly Rent by a fraction,
the numerator being the Index Figure for the month of December, preceding the
current anniversary date, and the denominator being the Index Figure for the
month of December preceding the previous anniversary date.
Section 4.2 Additional Rent.
All amounts required or provided to be paid by Tenant under this Lease
other than Minimum Monthly Rent shall be deemed Additional Rent. If Landlord
pays any monies or incurs any expense to correct a breach of this Lease by
Tenant or to do anything in this Lease required to be done by Tenant, all
amounts so paid or incurred shall, upon notice to Tenant, be considered
Additional Rent. Also, any amounts which Tenant must pay to Landlord under the
Fort Xxxxx-Xxxxx County Airport Authority Rules and Regulations, as may be
amended from time to time, shall become Additional Rent upon notice to Tenant.
Additional Rent shall be payable by Tenant under the same terms in this
Lease as Minimum Monthly Rent. Additional Rent shall be payable with the first
Minimum Monthly Rent installment thereafter becoming due and payable, and may be
collected as provided as in the case of Minimum Monthly Rent.
Section 4.3 Failure to Pay Rent.
It is agreed by Tenant and Landlord that Landlord may terminate the
tenancy of Tenant without demand or notice if Tenant fails to pay any Minimum
Monthly Rent within thirty (30) days of the date it is due.
Minimum Monthly Rent and Additional Rent shall each bear interest from
and after thirty (30) days after the due date, until paid, at the rate of
Eighteen percent (18%) per annum.
ARTICLE V
TAXES AND FEES
Section 5.1 Real Estate Taxes and User Fees.
Tenant shall pay, as Additional Rent, all real property taxes, user
fees, and other such charges levied upon its leasehold interests and/or upon the
Premises and the Buildings , if any, but Tenant shall pay only such Taxes and
Fees which are payable after the Commencement Date of this Lease as provided for
above, and it is the intent of the parties hereto that Tenant shall pay only
such Taxes and Fees which are payable in the period covered by Tenant's term of
possession. All Taxes and Fees shall become Additional Rent at the time Tenant
receives notice of such charges from Landlord.
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Section 5.2 Other Taxes.
Tenant shall pay, during the Lease Term, all license fees and
occupation taxes applicable to the business conducted by Tenant on the Premises,
and all taxes on any and all personal property owned by Tenant and located upon
the Premises.
ARTICLE VI
PARKING AREAS, COMMON AREAS AND FACILITIES
Section 6.1 Common Areas.
All public parking areas, access roads, and facilities furnished, made
available or maintained by Landlord in or near the Premises, including (where
applicable) truck ways, driveways, loading docks and areas, delivery areas,
pedestrian sidewalks, landscaped areas, retaining walls, stairways, lighting
facilities, sanitary systems, utility lines, water filtration and treatment
facilities, and other areas and improvements provided by Landlord for the
general use in common of Tenants and their customers (all of which are
hereinafter called "Common Areas") shall at all times be subject to the
exclusive control and management of Landlord, and Landlord shall have the right,
from time to time, to establish, modify and enforce reasonable rules and
regulations with respect to all Common Areas.
Section 6.2 Use of Common Areas.
Tenant and its business invitees, employees and customers shall have
the non-exclusive right, in common with Landlord and all others to whom Landlord
has granted or may hereafter grant rights, to use the Common Areas subject to
such reasonable regulations as Landlord may from time to time impose in the
rights of Landlord set forth above. Landlord may at any time close temporarily
any Common Areas to make repairs or changes or for other reasonable purposes.
Tenant shall not interfere with Landlord's or other tenants' rights to use any
part of the Common Areas.
Section 6.3 Landlord's Obligations.
Landlord shall keep the common areas in good condition and readily
accessible to the Tenant.
ARTICLE VII
ENVIRONMENTAL COMPLIANCE
Tenant makes the following representations and warranties to Landlord
regarding compliance with environmental laws:
(a) Environmental Laws and Hazardous Substances. For purposes herein,
the term "Environmental Law(s)" shall mean any federal, state or local statute,
law, ordinance, code, rule, regulation, order or decree regulating, relating to,
or imposing liability or standards of conduct concerning any Hazardous
Substance, as now or at any time hereafter in effect. For purposes herein,
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the term "Hazardous Substance(s)" shall have the meaning ascribed in and shall
include those substances listed under the Comprehensive Environmental Response,
Compensation and Liability Act, 41 U.S.C. 9601 et seq. and the regulations
promulgated thereunder (as amended from time to time) and the Clean Air Act, 41
U.S.C. 7401 et seq. and the regulations promulgated thereunder (as amended from
time to time) and includes oil, waste oil, and used oil as those terms are
defined in the Clean Water Act, 33 U.S.C. 1251 et seq. and regulations
promulgated thereunder (as amended from time to time) and the Resource,
Conservation and Recovery Act, 41 U.S.C. 6901 et seq. and regulations
promulgated thereunder (as amended from time to time) and the Oil Pollution Act
of 1990, 33 U.S.C. 2701 et seq. and regulations promulgated thereunder (as
amended from time to time) and shall include any other pollutant or contaminant
designated as such by Congress or the United States Environmental Protection
Agency (EPA) or defined by any other federal, state or local statute, law,
ordinance, code, rule, regulation, order or decree regulating, relating to, or
imposing liability or standards of conduct concerning any hazardous, toxic or
dangerous waste, substance or material, as now or at any time hereafter in
effect.
(b) Compliance with Environmental Laws. The Tenant warrants and
represents that (i) Tenant will not violate, in connection with the use,
ownership, lease, maintenance or operation of the Premises and the conduct of
the business related thereto, any Environmental Laws, (ii) Tenant, its agent,
employees, lessees and independent contractors will operate the Premises and
will receive, handle, use, store, treat, transport and dispose of all Hazardous
Substances in strict and timely compliance with all Environmental Laws.
(c) Environmental Permits and Licenses. The Tenant will obtain all
necessary environmental permits, licenses and approvals required under any
Environmental Law. The Tenant further certifies and represents that Tenant is
not in violation of any such permits, licenses and approvals.
(d) Notices, Orders and Complaints. If Tenant receives any notice of
(i) the happening of any event involving any Hazardous Substances or (ii) any
complaint which lists any noncompliance with regard to any environmental, health
or safety matter affecting Tenant (an "Environmental Complaint") from any person
or entity (including without limitation the EPA), then Tenant shall immediately
notify the Landlord orally and in writing of said event and provide the Landlord
with copies of any such Environmental Complaint.
(e) Right of Mitigation. The Landlord in cooperation with the Tenant
shall have the right, but not the obligation and without limitation of the
Landlord's rights under this Lease, to enter onto the Premises or to take such
other actions as it deems necessary or advisable to assess, investigate,
cleanup, remove, resolve, or minimize the impact of, or otherwise deal with, any
Hazardous Substances or Environmental Complaint which, in the sole opinion of
the Landlord, could result in an order, suit or other action against the
Landlord. All reasonable costs and expenses incurred by the Landlord in the
exercise of any such rights shall be payable by the Tenant as additional rent
upon demand, provided that Tenant shall not be liable for costs or expenses
where Tenant is not at fault.
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(f) Indemnification. The Tenant hereby agrees to indemnify the Landlord
and hold the Landlord harmless from and against any and all losses, liabilities,
including strict liability, damages, injuries, expenses, including reasonable
attorney's fees, claims for damage to the environment, claims for fines or civil
penalties, costs of any settlement or judgment and claims of any and every kind
whatsoever paid, incurred or suffered by, or asserted against the Landlord by
any person or entity or governmental agency for, with respect to, or as a direct
or indirect result of, the presence on or under, or the escape, seepage,
leakage, spillage, discharge, emission, or release from the Premises of any
Hazardous Substances or arising under any Environmental Law, if caused by or
within the control of Tenant, except that the Landlord shall be fully
responsible for the condition of the Premises prior to the Commencement Date and
shall indemnify and hold the Tenant harmless from any claim against the Tenant
arising out of the condition of the Premises prior to the Commencement Date or
caused by the Landlord.
(g) Agreement to Update. The Tenant shall advise the Landlord in
writing as soon as Tenant becomes aware of any condition or circumstance which
makes the environmental warranties, representations or certifications contained
in this Article VII incomplete or inaccurate.
(h) Breach. If any representation or warranty or certification made in
this Article VII by the Tenant shall prove untrue or the Tenant shall violate or
fail to comply with any of the provisions of this paragraph, a breach of this
Lease Agreement shall have occurred and the Landlord shall be entitled to
exercise its remedies for breach under this Lease Agreement.
(i) Inducement. The Tenant acknowledges that the representations and
warranties contained in this Article VII are being relied upon to induce the
Landlord to enter into the Lease Agreement with the Tenant.
ARTICLE VIII
UTILITIES
Tenant shall be responsible for the cost of providing any and all
utility service to the Premises. Tenant shall be solely responsible for and
promptly pay all charges for use or consumption of sewer, gas, electricity,
water, and all other utility service on the Premises.
ARTICLE IX
CONDUCT OF BUSINESS BY TENANT
Section 9.1 Use of Premises.
The Premises shall be occupied and used by Tenant solely for the
purposes of operating the American International Freight Central Cargo Hub,
consisting of aircraft maintenance facilities, aircraft hangars, and related
facilities and other aeronautical uses, except to the extent as may be permitted
pursuant to Section 10.1 of the Building Lease.
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Section 9.2 Operation by Tenant.
Tenant covenants and agrees that it will comply with all recorded
restrictions, if any, and all laws, recommendations, ordinances, rules, and
regulations of governmental, public, private and other authorities and agencies,
with respect to the use or occupancy of the Premises, and including but not
limited to the Fort Xxxxx-Xxxxx County Airport Authority Rules and Regulations,
as may be amended from time to time, provided, however, that no such Rules and
Regulations shall apply specifically to or discriminate specifically against
Tenant.
Section 9.3 Alteration, Additions and Improvements.
Tenant shall not make alterations, additions, or improvements without
the prior written consent of the Landlord, which consent shall not be
unreasonably withheld. Any alteration, addition or improvement made by the
Tenant after such consent shall have been obtained, shall be made strictly in
accordance with the plans as approved by Landlord and all applicable building
codes and governmental authority regulations. Upon the expiration or other
sooner termination of this Lease, unless the Landlord and the Tenant shall
otherwise agree, Landlord, at its option, may either require the Tenant to
remove the alteration, addition or improvement and to restore the Premises to
their original condition or elect to retain the alteration, addition or
improvement as its own property.
Section 9.4 Representations and Covenants of the Authority.
The Authority represents and warrants as follows:
(a) It is a duly organized and existing municipal corporation under the
laws of the State and is not in default under any of the provisions contained in
the laws of the State in any manner which would impair its ability to carry out
its obligations hereunder.
(b) The Authority has caused to be furnished to Kitty Hawk an
acceptable title insurance policy showing the status of title to the Real
Property as of the date of acquisition of the Real Property by Building Corp.
The Authority and the Building Corp. warrant that the Building Corp. has good
title to the Leased Premises and that the Authority has the authority to enter
into this Ground Lease.
(c) The Authority covenants not to take any action, within its power
and control, nor to fail to take any action with respect to the Bonds that would
result in the loss of the exclusion from gross income for federal income tax
purposes of interest on the Bonds pursuant to Section 103 of the Code.
Section 9.5 Operation as a Public Airport.
Landlord covenants and agrees that at all times it will operate and
maintain the Airport as a public airport consistent with and pursuant to the
sponsor's assurances given by the Landlord to the United States Government under
the Federal Airport and Airways Act.
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Section 9.6 Ingress and Egress.
Tenant shall have the right of ingress to and egress from the Leased
Premises for Tenant, its officers, employees, agents, servants, customers,
vendors, suppliers, patrons, and invitees over the roadway provided by Landlord
serving the Leased Premises. Landlord's roadway shall be used jointly with other
tenants on the Airport, and Tenant shall not interfere with the non-exclusive
rights and privileges of other persons or firms using said roadway and shall be
subject to such weight and use restrictions promulgated in Landlord's rules and
regulations.
Section 9.7 Quiet Employment.
The Building Corporation shall covenant to Landlord and the Landlord
covenants that it will not take any action to prevent Tenant, on paying the Rent
and Additional Payments and performing the covenants and agreements herein on
Tenant's part to be performed, from peaceably and quietly holding and enjoying
the Leased Premises for the Lease Term and any extension thereof and that
Landlord will, at Tenant's request and the Landlord's expense, defend Tenant's
enjoyment and possession of the Leased Premises against all parties or permit
Tenant in its own or, to the extent lawful, in Landlord's name, to defend such
enjoyment and possession.
ARTICLE X
CONDITION AND MAINTENANCE OF PREMISES
Section 10.1 Condition of Premises on Commencement Date.
Landlord shall furnish the Premises in good condition and free of any
contamination and Tenant shall have no responsibility for the condition of the
Premises prior to the Commencement Date.
Landlord has retained a competent specialist to conduct a Phase I
Environmental Site Assessment with respect to the Premises. The report of said
assessment, when completed, shall be attached hereto as Exhibit "B" and made a
part of this Lease (hereinafter the "Phase I Report").
Landlord and Tenant agree that the Phase I Report shall be deemed to be
conclusive evidence of the environmental condition of the Premises at the
Commencement Date. Upon expiration of the term of this Lease, Landlord shall
obtain an environmental site assessment by an independent professional. Tenant
shall be responsible for the cost of all mitigation required to return the
Premises to the environmental condition which existed at the Commencement Date.
This requirement shall be in addition to the terms and conditions contained in
Article VII of this Lease.
Section 10.2 Maintenance by Tenant.
Tenant shall keep the Premises neat, clean and in good order at all
times, and shall yield the same back to Landlord upon termination of the Lease,
whether such termination shall occur by expiration of the term hereof, or in any
other manner whatsoever, in the same condition of repair as
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at the date of the execution hereof. Tenant shall at all times keep the Premises
free of derelict aircraft and equipment. Tenant shall not permit any waste or
misuse of the Premises. If Tenant fails to perform its obligations hereunder,
Landlord without notice may, but shall not be obligated to, perform Tenant's
obligations or perform work resulting from Tenant's acts, actions or omissions,
and the cost of the same shall be Additional Rent payable with the next
installment of Minimum Monthly Rent due hereunder.
Section 10.3 Maintenance of Improvements.
The maintenance of the Buildings shall be covered by Article V of the
Building Lease.
Section 10.4 Signs. Awnings and Canopies.
All Tenant signs shall conform to the area control ordinances and all
other applicable laws, and Tenant will not place or permit on the Premises any
sign, awning, canopy, advertising matter, decoration, lettering or other thing
of any kind which has not been approved in writing by Landlord, which approvals
shall not be unreasonably withheld.
ARTICLE XI
LIENS
Tenant shall exert its best efforts not to suffer any mechanics' or
materialmen's lien to be filed against the fee of the Premises or against the
Tenant's leasehold interest in the Premises by reason of work, labor, services
or materials supplied or claimed to have been supplied to the Tenant or anyone
holding the Premises through or under the Tenant. If any such lien shall at any
time be filed as aforesaid, and Tenant shall fail to remove same within thirty
(30) days thereafter, it shall constitute a default under the provisions of this
Lease. However, it shall not be an event of default so long as such lien is
being defended in good faith with reasonable diligence by the Tenant, and such
defense is, in Landlord's reasonable opinion, likely to be successful.
ARTICLE XII
WAIVER
Section 12.1 Non-Liability and Indemnification.
(a) The Tenant, the Landlord and the Building Corp., hereinafter
sometimes called "Party" or collectively the Parties", each agree that it shall
be responsible for its own acts of carelessness and negligence, and each agree
to hold the Tenant, the Landlord and the Building Corp. harmless against any
loss or damage to property, or injury to or death of any person, that may be
occasioned by or caused by any failure to act whatsoever pertaining to the
Leased Premises or the use thereof by the other parties; provided, that the
indemnity in this sentence shall be effective only to the extent any loss that
may be sustained by the Tenant, the Landlord or the Building Corp. is in excess
of the net proceeds received by the Tenant, the Landlord or the Building Corp.
from any
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insurance carried with respect to the loss sustained. Each further agree to
indemnify and save harmless the Tenant, the Landlord and the Building Corp.
against and from any and all cost, liability, expenses and claims arising from
any breach or default in the performance of any covenant or agreement to be
performed pursuant to the terms of this Lease, or arising from any act or
negligence of or failure to act by such Party, or any of its agents,
contractors, servants, employees or licensees, or arising from any accident,
injury or damage whatsoever caused to any person, firm or corporation occurring
during the Lease Term, in or about the Leased Premises, and from and against all
costs, liability and expenses incurred in or in connection with any such claim
or action or proceeding brought thereon; and in case any action or proceeding be
brought against the Authority, Building Corp. or Kitty Hawk by reason of any
such claim, upon notice from the other Party covenants to resist or defend such
action or proceedings at its own expense.
Notwithstanding the foregoing, neither Party shall have any obligation
to indemnify with respect to the following:
(1) Liabilities arising out of damages to employees of any
Party, or any third person, if such employee or third person is covered
or should have been covered by worker's compensation insurance;
(2) Losses occasioned by the negligence or willful misconduct
of such Party, such Party's agents or representatives; or
(3) Insured losses with respect to which rights of subrogation
have been waived.
(b) Landlord shall not be responsible or liable to Tenant or to those
claiming by, through or under Tenant for any loss or damage to either the person
or property of Tenant that may be occasioned by or through the acts or omissions
of persons occupying adjacent, connecting or adjoining premises.
(c) In case Landlord shall without fault on its part be made a party to
any litigation commenced by or against Tenant, then Tenant shall protect and
hold Landlord harmless and pay all costs, expenses and reasonable attorneys'
fees.
Section 12.2
Notwithstanding the foregoing, neither party shall have obligation to
indemnify with respect to the following:
(a) Liabilities arising out of damages to employees of any
party, or any third person, if such employee or third person is covered
or should have been covered by worker's compensation insurance;
(b) Losses occasioned by the negligence or willful misconduct
of such party, such party's agents or representatives; or
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(c) Insured losses with respect to which rights of subrogation
have been waived.
ARTICLE XIII
INSURANCE
Section 13.1 Insurance on Improvements.
Insurance on Buildings shall be governed by Article XIII of the
Building Lease.
Section 13.2 Other Insurance.
Tenant agrees to carry Public liability insurance on the Premises
during the Lease Term, covering the Tenant and naming the Landlord as an
additional named insured, with terms and companies satisfactory to Landlord, in
accordance with the requirements of the Airport Use and Lease Agreement.
Tenant shall provide Landlord a certificate evidencing that said
insurance is in full force and effect and stating the terms thereof, on an
annual basis.
Tenant acknowledges that it shall bear the risk of loss for all of the
personal property, including trade fixtures, located on the Premises, as well as
the risk of loss associated with business interruption due to casualty to the
Premises.
Section 13.3 Rental Value Insurance.
Tenant shall obtain a rent or rental value insurance policy in amounts
as required by the Building Lease. Such policy shall insure against loss of
Minimum Monthly Rent during a period in which the Minimum Monthly Rent of
Landlord is abated as a result of physical loss or damage to the Buildings on
the Premises, however caused, with such exceptions only as are ordinarily
required by insurers of buildings or facilities of a similar type.
Section 13.4 Mutual Waiver of Subrogation Rights.
Landlord and Tenant and all parties claiming under them mutually
release and discharge each other from all claims and liabilities arising from or
caused by any casualty or hazard covered or required hereunder to be covered in
whole or in part by insurance on the Premises or in connection with property on
or activities conducted on the Premises, and waive any right of subrogation
which might otherwise exist in or accrue to any person on account thereof.
Provided, however, that such release shall not operate in any case where the
effect is to invalidate or increase the costs of such insurance coverage
(provided, that in the case of increased costs, the other party shall have the
right, within thirty (30) days following written notice, to pay such increased
costs, thereby keeping such release and waiver in full force and effect) .
Provided, further, that such mutual waiver shall apply only to the extent of the
insurance coverage or the required coverage, whichever is greater.
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ARTICLE XIV
DAMAGE AND DESTRUCTION
In the event that damage and destruction to the Buildings pursuant to
Section 6.1 of the Building Lease results in abatement of rent pursuant to
Section 6.4 of the Building Lease, then Minimum Monthly Rent hereunder shall
xxxxx to the same extent and under the same terms and conditions as set forth in
Section 6.4 of the Building Lease.
ARTICLE XV
ASSIGNMENTS AND SUBLEASES
Kitty Hawk may assign or sublet all or any part of the Leased Premises
to American International Airways, Inc. ("AIA"), a subsidiary of Kitty Hawk.
Such assignment or sublease shall not release Kitty Hawk from the obligations to
perform all of the terms and conditions of the Lease.
Thereafter, this Lease may be assigned in whole or in part, and the
Leased Premises may be subleased as a whole or in part by AIA or Kitty Hawk only
with the prior written consent of the Landlord and Building Corp., which consent
will not be unreasonably withheld. The assignment to AIA, consent by the
Landlord and Building Corp., or the acceptance of an assignee or subtenant shall
not release Kitty Hawk from the further performance by Kitty Hawk of the
covenants of this Lease or be construed to relieve Kitty Hawk from obtaining the
consent, in writing, of the Landlord and Building Corp. to any further
assignment or subletting and Kitty Hawk shall remain primarily liable on this
Lease for the entire term hereof and shall not be released from the full and
complete performance of all of the terms, conditions and agreements herein
contained.
ARTICLE XVI
DAMAGE, DESTRUCTION AND CONDEMNATION
In the event of the damage, destruction or condemnation of the
Premises, then all of the terms and conditions of Article VI of the Building
Lease shall apply in their entirety to this Lease.
ARTICLE XVII
EVENTS OF DEFAULT
Section 17.1 Events of Default by Tenant.
The following events shall be deemed to be events of default by a
Tenant under this Lease:
(a) Failure of Tenant to pay any rent or other amount within thirty
(30) days of the date it is due;
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(b) Failure of Tenant to perform or observe any other of the terms,
provisions, conditions and covenants of this Lease, the Building Lease, the
Operating Agreement, and/or the Lease and Use Agreement for more than thirty
(30) days after written notice of such failure;
(c) Tenant's insolvency, bankruptcy, admission in writing of its
inability to pay its debts as they mature, assignment for the benefit of
creditors, or application for or consent to the appointment of a trustee or
receiver for Tenant or for the major part of its property;
(d) Appointment of trustee or receiver for Tenant or for the major part
of its property and failure to cause said trustee or receiver to be discharged
within thirty (30) days after such appointment;
(e) Institution of any proceeding for relief under any bankruptcy law,
or similar law for the relief of debtors, by or against Tenant, and, if
instituted against Tenant or allowed against it or consented to by it, or not
dismissed within sixty (60) days after such institution;
(f) The levy and execution upon or the attachment by legal process of
the leasehold interest of Tenant, or the filing or creation of a lien in respect
to such leasehold interest to which the Landlord has not consented in writing
and which Tenant does not discharge in thirty (30) days; or
Section 17.2 Events of Default by the Landlord.
The following shall be "events of default" by the Landlord under this
Lease and the terms "event of default" or "default" shall mean, wherever they
are used in this Lease, any one or more of the following events:
(a) The FAA or other proper Federal Agency shall withdraw its
approval from the Airport and restrict the use of the Airport in such a
manner as to prevent the use of same by Tenant for its business
operations.
(b) An order is issued by any court of competent jurisdiction
restricting the use of the Airport in such a manner as to prevent the
use of same by Tenant for its business operations.
(c) The airfield shall be closed by lawful authority
restricting the use of the Airport in such a manner as to prevent the
use of the same by Tenant for its business operations hereunder.
(d) If a court of competent jurisdiction issues an injunction
against the Landlord or any successor body to the Landlord preventing
or restraining the use of the Airport in its entirety or of any part of
the Airport substantially necessary to Tenant for its operations, and
if such injunction remains in force for at least ninety (90) days.
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(e) If the Landlord fails to provide and maintain reasonable
means for ingress and egress to and from the Leased Premises in
accordance with the provisions of this Agreement or fails to fulfill
its obligations under Section 9.7 in respect of Tenant's right of quiet
enjoyment granted thereby.
(f) If by reason of any willful act, willful omission
wrongfully done or wrongfully omitted to be done in violation of this
Agreement; the Landlord prevents the use of the Leased Premises for the
purposes for which the use thereof is authorized by this Agreement.
Section 17.3 Remedies of Authority on Default.
Upon the occurrence of any such event of default, Landlord may pursue
any one or more of the following remedies, as well as any other remedies
provided by law, at its sole option, without any notice or demand whatsoever:
(a) Landlord may declare immediately due and payable the entire amount
of the rent then remaining to be paid under this Lease for the balance of the
Lease Term;
(b) Landlord may enter upon and take possession of the Premises without
terminating this Lease and without relieving Tenant of its obligation to make
the monthly payments of rent herein reserved, expel or remove Tenant and any
other person who may be occupying said Premises or any part thereof and any
personal property or trade fixtures located therein (including changing or
alternating the locks and other security devices), and relet the Premises in the
name of Landlord or Tenant at any rental readily obtainable and receive the rent
therefor. In such event, Tenant shall pay to Landlord, on demand, any deficiency
that may arise by reason of such reletting and the expenses, including, but not
limited to, realtors' commission, appraisers' fees, and reasonable attorneys'
fees, of such reletting, for the residue of the term of this Lease. In no event
shall Landlord have a duty to relet the Premises until such time as all other
available space owned and controlled by Landlord has been leased.
(c) Landlord may forfeit and terminate this Lease forthwith. In the
event of such a termination, Tenant shall immediately surrender the Premises to
Landlord and if Tenant fails to do so, Landlord may enter upon and take
possession of the Premises and expel or remove Tenant and any other person who
may be occupying the Premises or any part thereof, and any personal property or
trade fixtures located therein.
Pursuit by Landlord of any of the foregoing remedies or any other
remedy provided by law shall not constitute a waiver of any rent due to Landlord
hereunder or of any damages occurring to Landlord by reason of the violation by
Tenant of any of the terms, provisions and covenants of this Lease. In no event
shall Tenant be relieved from its obligation to pay rental specified in this
Lease by reason of a surrender of possession, termination of this Lease, or in
any other manner whatsoever unless specifically agreed to, in writing, by
Landlord. Further, any agreement by Tenant as to unconditional payments shall
not be construed to prevent Tenant, after complying with the payment
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provision, from pursuing any claim it may have against the Landlord or any other
person in such court of law or otherwise as Tenant may deem appropriate.
Section 17.4 Remedies of Tenant on Default.
Whenever any event of default under Section 17.2 of this Lease shall
have happened or be subsisting, any one or more of the following remedial steps
may be taken:
(a) Tenant may terminate this Lease.
(b) Tenant may take whatever action at law or in equity may
appear necessary or desirable to pursue in order to enforce performance
and observance of any obligation, agreement or covenant of the
Authority under this Lease.
Provided, however, if before the expiration of 60 days from the date of
which an event of default under Section 17.2 of this Lease shall have happened,
Landlord shall have cured the event of default, then: (i) Tenant shall waive the
event of default and its consequence and shall rescind and annul that
declaration, (ii) the Lease, if it has been terminated pursuant to Subparagraph
(a) above, shall be reinstated, and (iii) the Lease shall continue in full force
and effect.
Section 17.5 Tenant's Waiver.
Tenant hereby waives demand for rent, demand for possession, notice of
forfeiture, notice of termination and any and all other demands or notices
required by law.
Section 17.6 Arbitration.
In the event of any dispute between Tenant and Landlord with respect to
the terms and conditions of this Ground Lease, the Building Lease or the
operating Agreement, Tenant and Landlord shall first appoint a single
representative of each to attempt to reasonably negotiate a settlement of such
dispute and make recommendations with respect to such settlement to Tenant and
to Landlord. Tenant and Landlord may, if they so desire, submit such issue to
mediation. In the event that such dispute continues to be unsettled for
forty-five (45) days following the receipt of formal notification by certified
mail, return receipt requested, that a dispute subject to arbitration exists,
then both Tenant and Landlord shall appoint an independent arbitrator, who shall
appoint a third arbitrator, and the matters in dispute shall be submitted to
arbitration by this panel of arbitrators in accordance with the commercial
arbitration rules then existing by the American Arbitration Association, whose
determination, following the exhaustion of all administrative and judicial
appeals, shall become final, subject to appeal only on the basis of collusion,
fraud, or manifest disregard for the law. The panel of arbitrators shall have
the authority to enter equitable and legal orders and interim and final orders.
Such arbitration shall occur in Xxxxx County, Indiana, and shall be binding upon
the parties, their representatives and assigns, provided, further, that all
parties shall be obliged to observe and comply with all the terms of the Ground
Lease, the Building Lease and the Operating Agreement, including the obligation
to make all rental payments and other payments, until the arbitration process
has been completed and becomes binding on all of the parties.
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Notwithstanding the foregoing, no arbitration decision shall affect
Xxxxx Xxxx'x obligation to pay rent or make other payments to Landlord required
by the terms of this Lease.
ARTICLE XVIII
DEFAULT BY LANDLORD
Landlord shall in no event be charged with default in any of its
obligations hereunder, either affirmatively or as a defense, unless and until
Landlord shall have failed to perform such obligations within sixty (60) days
(or such additional time as is reasonably required to correct any such default),
after written notice to Landlord and to Fort Xxxxx National Bank ("Bond
Trustees") by Tenant, specifically describing such failure.
ARTICLE XIX
RIGHTS RESERVED TO LANDLORD
Section 19.1 Inspection and Repair.
Landlord, and its duly authorized agents, employees and contractors,
shall have access to the Premises at all reasonable times for the purposes of
inspecting the same and making necessary repairs or replacements as called for
hereunder or as the Landlord shall elect to undertake for the safety,
preservation, benefit or welfare of the building of which the Premises
constitute a part or of other tenants thereof.
Section 19.2 Right to Show Premises.
Landlord shall have the right to show the Premises to prospective
tenants or brokers during the last one hundred eighty (180) days of the term of
this Lease, including any renewal terms, at all reasonable times.
Section 19.3 Right to Relocate and Grant Easements.
Landlord shall have the right to relocate existing utility easements in
the Premises, as well as the right to grant new utility easements in the
Premises. Tenant's rights in the Premises shall be subordinate to the rights of
any grantee(s) of such easements. The location, relocation and placement of all
utilities will be made only with the cooperation of the Landlord and Tenant. In
the event Landlord requires such a location or relocation, Landlord shall be
responsible to repair and restore any damage caused thereby.
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ARTICLE XX
HOLDING OVER
If Tenant or any party holder under Tenant holds over or occupies the
Premises beyond the Lease Term (it being agreed there shall be no such holding
over or occupancy without Landlord's written consent), Tenant shall pay Landlord
for each day of such holding over a sum equal to twice the Minimum Monthly Rent
prorated for the number of days of such holding over, plus any Additional Rent,
as set forth in the Lease. If Tenant holds over with Landlord's written consent,
Tenant shall occupy the Premises on a tenancy from month to month, and all other
terms and provisions of this Lease shall be applicable to such period.
ARTICLE XXI
QUIET ENJOYMENT
If Tenant pays the rents and other amounts herein provided, observes
and performs all the covenants, terms and conditions hereof, Tenant shall
peaceably and quietly hold and enjoy the Premises for the Lease Term without
interruption by Landlord or any person or persons claiming by, through or under
Landlord, subject, nevertheless, to the terms and conditions of this Lease.
ARTICLE XXII
MISCELLANEOUS
Section 22.1 Waiver.
No waiver by Landlord or Tenant of any breach of any term, covenant, or
condition hereof shall be deemed a waiver of the same, or any subsequent breach
of the same, or any other term, covenant or condition. The acceptance of rent by
Landlord shall not be deemed a waiver of any earlier breach by Tenant of any
term, covenant, or condition hereof, regardless of Landlord's knowledge of such
breach when such rent is accepted. No covenant, term or condition of this Lease
shall be deemed waived by Landlord or Tenant unless waived in writing.
Section 22.2 Relationship of Parties.
Nothing contained in this Lease shall be construed to create a
partnership or joint venture between the Landlord and the Tenant or between the
Landlord and any other party, or cause the Landlord to be responsible in any way
for the debts or obligations of the Tenant or any other party.
Section 22.3 Accord and Satisfaction.
Landlord is entitled to accept, receive and cash or deposit any payment
made by Tenant for any reason or purpose or in any amount whatsoever, and apply
the same at Landlord's option to any obligation of Tenant and the same shall not
constitute payment of any amount owed except that to
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which Landlord has applied the same. No endorsement or statement on any check or
letter of Tenant shall be deemed an accord and satisfaction or otherwise
recognized for any purpose whatsoever. The acceptance of any such check or
payment shall be without prejudice to Landlord's right to recover any and all
amounts owed by Tenant hereunder, and Landlord's right to pursue any other
available remedy.
Section 22.4 Attorneys' Fees.
Tenant shall pay, as Additional Rent, all of the costs, charges and
expenses, including court costs and reasonable attorneys' fees incurred by
Landlord in enforcing its rights under this Lease or incurred by Landlord in any
litigation, negotiation or transactions relating to, or arising out of, this
Lease in which Landlord, without fault, becomes involved or concerned.
Section 22.5 Entire Agreement.
There are no representations, covenants, warranties, promises,
agreements, conditions or undertakings, oral or written, between Landlord and
Tenant other than herein set forth. Except as herein otherwise provided, no
subsequent alteration, amendment, change or addition to this Lease shall be
binding upon Landlord or Tenant unless in writing and signed by them.
Section 22.6 Force Majeure.
If either party hereto shall be delayed or hindered in or prevented
from the performance of any act required hereunder by reason of strikes,
lockouts, labor troubles, inability to procure material, failure of power,
restrictive governmental laws or regulations (other than those enacted by
Landlord), riots, insurrection, war, or other reason of a like nature not the
fault of the party delayed in performing work or doing acts required under this
Lease, the period for the performance of any such act shall be extended for a
period equivalent to the period of such delay, provided, however, that this
provision shall not apply to the payment of Minimum Rent or Additional Rent by
Tenant. Accordingly, Minimum Rent or Additional Rent shall not xxxxx under this
provision.
Notwithstanding the foregoing, in the event that Kitty Hawk, shall
defease the Bonds in accordance with the Trust Indenture, and any other
indebtedness of the Authority which was issued to finance infrastructure and any
indebtedness which was issued to refinance or advance refund any such
indebtedness, and remediate any environmental cleanup, then the Lease Term shall
be extended only upon the mutual agreement of Landlord and Tenant.
Section 22.7 Captions and Section Numbers.
This Lease shall be construed without reference to titles of articles
and sections, which are inserted only for convenience of reference.
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Section 22.8 Number and Gender.
The use herein of a singular term shall include the plural and use of
the masculine, feminine or neutral gender shall include all others.
Section 22.9 Joint and Several Liability.
If Tenant is a partnership or other business organization, the members
of which are subject to personal liability, the liability of each such member
shall be deemed to be joint and several.
Section 22.10 Partial Invalidity.
If any provision of this Lease or the application thereof to any person
or circumstance shall to any extent be invalid or unenforceable, the remainder
of this Lease, or the application of such provision to persons or circumstances
other than those as to which it is invalid or unenforceable, shall not be
affected thereby and each provision of this Lease shall be valid and enforceable
to the fullest extent permitted by law.
Section 22.11 Recording.
The parties agree not to place this Lease of record but each party
shall, at the request of the other, execute and acknowledge, so that the same
may be recorded, a Short Form Lease or Memorandum of Lease, indicating a lease
term, but omitting rent and other terms, and an Agreement specifying the date of
commencement and termination of the lease term; provided, however, that the
failure to record said Short Form Lease, Memorandum of Lease or Agreement shall
not affect to impair the validity and effectiveness of this Lease. Tenant shall
pay all costs, taxes, fees and other expenses in connection with or prerequisite
to recording.
Section 22.12 Successors.
This Lease shall inure to the benefit of and be binding upon the
Landlord or Tenant and their respective heirs, executors, administrators,
successors and such assigns and subtenants as may be permitted hereunder.
Section 22.13 Corporate Tenants.
Each individual executing this Lease on behalf of a corporation
represents and warrants that he has the authority to do so.
Section 22.14 Compliance with Federal Law.
(a) The Tenant, for himself, his heirs, personal representatives,
successors in interest, and assigns, as a part of the consideration hereof, does
hereby covenant and agree, as a covenant running with the land, that in the
event facilities are constructed, maintained or otherwise operated on the
Premises for a purpose for which a United States Department of Transportation
program or activity
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is extended or for another purpose involving the provision of similar services
or benefits, the Tenant shall maintain and operate such facilities and services
in compliance with all other requirements imposed pursuant to 49 C.F.R. Part 21,
Nondiscrimination in Federally Assisted Programs of the Department of
Transportation, and as said Regulations may be amended.
(b) The Tenant, for himself, his personal representatives, successors
in interest, and assigns, as a part of the consideration hereof, does hereby
covenant and agree, as a covenant running with the land that:
(1) No person, on the grounds of race, color, or national
origin, shall be excluded from participation in, denied the benefits
of, or be otherwise subjected to discrimination in the use of said
facilities;
(2) That in the construction of any improvements on, over or
under such land and the furnishing of services thereon, no person, on
the grounds of race, color or national origin shall be excluded from
participation in, denied the benefits of, or otherwise be subjected to
discrimination;
(3) That the Tenant shall use the Premises in compliance with
all other requirements imposed by or pursuant to 49 C.F.R. Part 21,
Nondiscrimination in Federally Assisted Programs of the Department of
Transportation, and as said Regulations may be amended.
(c) Tenant 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
benefitting from Federal assistance. This provision obligates Tenant or its
assignee for the period during which Federal assistance is extended to the
airport programs, except where Federal assistance is to provide, or is in the
form of personal property or real property or interest therein or structures or
improvements thereon. In these cases, this provision obligates Tenant or its
assignee for the longer of the following periods:
(1) The period during which the property is used by Landlord
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
(2) The period during which Landlord or any transferee retains
ownership or possession of the property
(d) Tenant shall comply with all laws, orders or regulations of any
governmental authority relating to the use and occupancy of the Premises,
including, but not limited to, the regulations and rules adopted by Landlord, in
its Airport Security Program, the Federal Aviation Administration (and
specifically, without limitation, Federal Aviation Regulations, Parts 107 and
139), and any other entity having authority applying to or affecting Xxxx Field.
Any violation by Tenant, its employees, suppliers, guests, business invitees, or
agents of any rule or regulation which results in the
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assessment of a fine against Landlord by the Federal Aviation Administration
shall be the responsibility of Tenant, and the fine shall be paid by Tenant as
additional rent.
Section 22.15 Master Lease.
It is hereby acknowledged by Tenant that the Landlord does not have
legal title to the premises, but, rather, leases the Premises from the Building
Corp. (the "Master Lease"). Tenant acknowledges that its right in the premises
derives from and is subordinate to the Master Lease. The Master Lease shall
require, in the event that the Building Corp. evicts the Landlord from the
Leased Premises, this Lease shall continue in full force and effect, so long as
Tenant is not in default of this Lease. In such event, Tenant hereby agrees to
attorn to and acknowledge the Building Corp. as Landlord.
Section 22.16 Right of Flight.
Landlord reserves for the use and benefit of the public a right of
flight for the passage of aircraft in the air space over-lying the Premises,
together with the right to cause in that air space such noise as is inherent in
the operation of aircraft using the air space for landing at, taking off from,
or operating at Xxxx Field. Tenant shall not erect or allow the erection or
maintenance of any structure or object or permit any growth which violates
federal or state law regarding tall structures, including, but not limited to,
14 C.F.R. Part 77 and Ind. Code Section 8-21-10-1, et seq., and any amendments
thereto.
Section 22.17 Applicable Law.
This Lease shall be construed under the laws of the State of Indiana.
Section 22.18 Notices.
All notices from Tenant to Landlord required or permitted by any
provision of this Lease shall be directed to Landlord as follows:
Fort Xxxxx-Xxxxx County Airport Authority
Fort Xxxxx International Airport
Lt. Xxxx Xxxx Xxxxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Executive Director of Airports
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All notices from Landlord to Tenant required or permitted hereunder
shall be directed as follows:
KITTY HAWK, INC.
BY:
---------------------------
M. Xxx Xxxxxxxxxxx,
Chairman of the Board and
Chief Executive Officer
STATE OF INDIANA )
)
COUNTY OF XXXXX )
Before me, a Notary Public in and for said County and State, personally
appeared XXXXXX X. XXXXXX and XXXXX X. XXXXXXX, the President and Assistant
Secretary, respectively, of the Fort Xxxxx-Xxxxx County Airport Authority Board,
who acknowledged the execution of the above and foregoing Ground Lease, for and
on behalf of the Fort Xxxxx-Xxxxx County Airport Authority.
WITNESS my hand and Notarial Seal this 13th day of April, 1998.
-------------------------------------------
Xxxxxx X. Xxxxx, Notary Public
Residing in Xxxxx County, Indiana
My Commission Expires:
-----------------------------------
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STATE OF TEXAS )
)
COUNTY OF )
Before me, a Notary Public in and for said County and State, personally
appeared M. XXX XXXXXXXXXXX, Chairman of the Board and Chief Executive Officer
of KITTY HAWK, INC., who acknowledged the execution of the above and foregoing
Ground Lease, for and on behalf of said corporation.
WITNESS my hand and Notarial Seal this day of April, 1998.
---------------------------------
, Notary Public
-----------------
Residing in County, Texas
---------
My Commission Expires:
-------------------------------------
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Kitty Hawk, Inc.
0000 Xxxx 00xx Xxxxxx
P.O. Box 612787
Dallas/Fort Worth International Xxxxxxx, Xxxxx 00000
Attention: M. Xxx Xxxxxxxxxxx,
Chairman of the Board and Chief Executive Officer
All notices to be given hereunder by either party shall be written and
sent by certified mail, return receipt requested, postage prepaid, addressed to
the party intended to be notified at the address set forth above. Either party
may, at any time, or from time to time, notify the other in writing of a
substitute address or substitute person to whose attention the notice is to be
sent for that set forth above, and, thereafter, notices shall be directed to
such substituted address or substituted person. Notice given as aforesaid shall
be sufficient service thereof and shall be deemed given as of the date received,
as evidenced by the return receipt of the registered or certified mail.
Section 22.19 Landlord's Consent.
In each case under this Lease in which Landlord's consent shall not be
unreasonably withheld, Landlord shall notify Tenant of its decision within
ninety (90) days if Tenant's request is made under Section 9.3 or Article XV
hereunder, and within sixty (60) days if Tenant's request is made under any
other provision hereunder. Landlord's consent shall be deemed granted if
Landlord has not given written notice of its refusal to grant such consent,
setting forth with specificity the bases for such refusal.
IN WITNESS WHEREOF, Landlord and Tenant have signed and sealed this
Lease as of the day and year first above written.
FORT XXXXX-XXXXX COUNTY
AIRPORT AUTHORITY
BY:
----------------------------
Xxxxxx X. Xxxxxx, President
Fort Xxxxx-Xxxxx County
Airport Authority Board
ATTEST:
-----------------------------------
Xxxxx X. Xxxxxxx
Assistant Secretary
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