EXHIBIT 10.40
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE
CONFIDENTIAL PORTIONS HAVE BEEN REDACTED AND ARE DENOTED BY {***}. THE
CONFIDENTIAL PORTIONS HAVE BEEN SEPARATELY FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION.
ORLANDO MAINTENANCE FACILITY
SUBLEASE AGREEMENT
[Letterhead of Greater Orlando Aviation Authority]
June 4, 1996
Mr. Xxx Xxxxx VIA FEDERAL EXPRESS
Midway Airlines Corporation # 3526071146
000 X. Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Dear Xx. Xxxxx:
RE: Sublease Agreement by and between Page Avjet Corporation ("Page") and
Midway Airlines Corporation ("Midway"), dated May 1, 1995, (the
"Sublease")
The purpose of this letter is to advise you that, in accordance with the
provisions of Article 28 of the Sublease, Page has assigned all of its rights
under the Sublease to the Greater Orlando Aviation Authority (the "Authority")
effective June 1, 1996. Please send all payments of rent and other
communications to the Authority as follows:
Payments of Rent:
Chief Financial Officer
Greater Orlando Aviation Authority
Xxx Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000-0000
Other Communications:
Executive Director
Greater Orlando Aviation Authority
Xxx Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000-0000
Mr. Xxx Xxxxx
Page 2
June 4, 1996
If you have any questions, please do not hesitate to call me.
Sincerely,
/s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Assistant Director of Properties
XXX/cq
cc: Xxxxxxxxx & Liebentriff, P.C.
000 X. Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: X. X. Xxxxxx (via Federal Express)
Xxxx X. Xxxxxx, Esq.
J. Xxxxxx Xxxxx, Esq.
Xxxxxxx Xxxxx
PAGE AVJET
May 31, 1996
Xxxxxxxx X. Xxxxxx
Vice President and General Counsel
Midway Airlines Corporation
0000 X. Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Re: Sublease between Page Avjet Corporation and Midway Airlines Corporation
dated May 1, 1995
Dear Xxx:
Pursuant to our conversation of even date, this is to ratify and confirm the
obligation of Page Avjet Corporation, a Delaware corporation and Page Avjet
Holding Corporation, a Delaware corporation (hereinafter collectively referred
to as Page) under paragraph 5(f) of that certain Agreement of Sublease dated May
1, 1995 by and between Page and Midway Airlines Corporation, a Delaware
corporation, to provide exclusive usage of two (2) 115 volt, 400 cycle ground
power units and one (1) air compressor unit located on the leased premises.
By copy of this letter I will be advising the Greater Orlando Aviation Authority
that Page will remain obligated to fulfill the obligations of the Landlord under
the provisions of Article 5(f) of the Agreement of Sublease. As we discussed,
upon termination of the Sublease, Page will retake possession of the equipment.
Xxx, thank you for your cooperation on this matter. As we discussed, I will be
contacting you shortly concerning various repairs requested by Midway.
Best regards.
Very truly yours,
/s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
Secretary
PJM/mm
cc: J. Xxxxxx Xxxxx, Esquire
PAGE AVJET
May 31, 1996
Xxxxxxxx X. Xxxxxx
Vice President and General Counsel
Midway Airlines Corporation
0000 X. Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Re: Sublease between Page Avjet Corporation and Midway Airlines Corporation
dated May 1, 1995
Dear Xxx:
Pursuant to our conversation of even date, this is to ratify and confirm the
obligation of Page Avjet Corporation, a Delaware corporation and Page Avjet
Holding Corporation, a Delaware corporation (hereinafter collectively referred
to as Page) under paragraph 5(f) of that certain Agreement of Sublease dated May
1, 1995 by and between Page and Midway Airlines Corporation, a Delaware
corporation, to provide exclusive usage of two (2) 115 volt, 400 cycle ground
power units and one (1) air compressor unit located on the leased premises.
By copy of this letter I will be advising the Greater Orlando Aviation Authority
that Page will remain obligated to fulfill the obligations of the Landlord under
the provisions of Article 5(f) of the Agreement of Sublease. As we discussed,
upon termination of the Sublease, Page will retake possession of the equipment.
Xxx, thank you for your cooperation on this matter. As we discussed, I will be
contacting you shortly concerning various repairs requested by Midway.
Best regards,
Very truly yours,
/s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
Secretary
PJM/mm
cc: J. Xxxxxx Xxxxx, Esquire
[Letterhead of Page Avjet Corporation]
December 19, 1995
Midway Airlines Corporation
Attention: Mr. Xxx Xxxxx
0000 X. Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Re: Sublease by and between Page Avjet Corporation and Midway Airlines
Corporation dated May 1, 1995
Dear Xx. Xxxxx:
This letter is being sent to provide Midway Airlines Corporation with notice
that Page Avjet Corporation's notice address with respect to the
above-referenced Sublease has changed as follows:
Page Avjet Corporation
c/o BBA U.S. Holdings, Inc.
Xxxxx 000
0000 X. X. Xxx Xxxxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx, Controller
Should you have any questions, please do not hesitate to call me at (407)
000-0000.
Sincerely,
/s/ Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxxx
Legal Assistant
cc: Xxx Xxxxxxxx
Xxxxx X. Xxxxxxx
Xxxxxxxxx & Xxxxxxxxxxx, P.C.
[Letterhead of Signature Flight Support]
May 1, 1995
Xxx Xxxxxx, Esquire
Xxxxxxxxx & Xxxxxxxxxxx, P.C.
Two Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Re: Page Avjet Sublease with Midway Airlines
Dear Xxx:
Enclosed please find one (1) original copy of the referenced Sublease, which has
been executed by Page Avjet Corporation. Please note that rather than initial
all the changes you requested, the changes were made and new pages were
inserted. The only modification made to your requested changes can be found in
Article 22.
Additionally, I have been advised that GOAA (rather than give its formal
approval by executing the Sublease) will prepare and forward their form of
consent to be executed by all parties. Upon receipt of same I will circulate for
signature.
If you have any questions, please feel free to call.
Sincerely,
/s/ Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxxx
Legal Assistant
enclosures
cc: Xxx Xxxxxxxx (w/enclosure)
SUBLEASE AGREEMENT
By and Between
PAGE AVJET CORPORATION
and
MIDWAY AIRLINES CORPORATION
at
Orlando International Airport
Orlando, Florida
Effective May 1, 1995
INDEX
AGREEMENT OF SUB-LEASE
LANDLORD: PAGE AVJET CORPORATION
TENANT: MIDWAY AIRLINES CORPORATION
TERM: May 1, 1995 - April 30, 1998
COMMENCEMENT DATE: May 1, 1995
PAGE ARTICLE DESCRIPTION
---- ------- -----------
4 Article 1 Grant of Sub-Lease
4 Article 2 Master Lease Obligations
4,5 Article 3 Term
5 Article 4 Rent
5,6 Article 5 Improvements
6 Article 6 Taxes
6 Article 7 Utilities
6,7 Article 8 Tenant Insurance
7,8 Article 9 Liability
8 Article 10 Storage
8,9 Article 11 Maintenance
9 Article 12 Alterations
10 Article 13 Damage and Destruction
10 Article 14 Condemnation, Loss of Access
10,11 Article 15 Default/Early Termination
11 Article 16 Assignment and Subletting
11,12 Article 17 Use of Premises by Tenant
12 Article 18 Use of Premises by Landlord
13 Article 19 Estoppel Certificates
13 Article 20 Quiet Enjoyment
13 Article 21 Force Majeure
13 Article 22 Expiration
13 Article 23 Successors and Assigns
13 Article 24 Nonwaiver
14 Article 25 Holding Over
14 Article 26 Right of Entry
14 Article 27 Mechanic's Liens
14 Article 28 Transfer of Landlord's Interest
15 Article 29 Security Deposit
16 Article 30 Curing Tenant's Defaults
16 Article 31 Limitation of Landlord's Liability
16 Article 32 Sign Control
16 Article 33 Relocation of Premises
2
INDEX (Continued)
AGREEMENT OF SUB-LEASE
PAGE ARTICLE DESCRIPTION
---- ------- -----------
17 Article 34 Miscellaneous
18 Article 35 Recording
18 Article 36 Exclusive Rights of Landlord
18 Article 37 Notices
19 ---------- Execution
20 ---------- Airport Consent and Parties Notarization
21 Exhibit "A" Designated Premises
22 Exhibit "B" Master Lease
3
AGREEMENT OF SUBLEASE
THIS AGREEMENT OF SUB-LEASE, made and executed as of the 1st day of May, 1995,
by and between PAGE AVJET CORPORATION, a Delaware corporation ("Landlord"), and
MIDWAY AIRLINES CORPORATION, a Delaware corporation ("Tenant").
WITNESSETH
WHEREAS, Page Avjet Corporation has entered into a Maintenance Hangar
Lease Agreement with the Greater Orlando Aviation Authority ("Authority") dated
the 4th day of April, 1988 ("Master Lease") under which it leased the
"Property" (as that term is subsequently defined herein), and
WHEREAS, subject to the terms and conditions contained herein and in the
Master Lease, Landlord desires to lease a portion of the Property ("Premises")
described herein, to Tenant and Tenant desires to lease said Premises from the
Landlord.
NOW THEREFORE, in consideration of the foregoing and the mutual promises
contained herein, the parties, intending to be legally bound, agree as follows:
ARTICLE 1. GRANT OF SUB-LEASE
Landlord hereby sub-leases to Tenant and Tenant hereby sub-leases from
Landlord, the Building Xx. 000 Xxxxxxxxxxx Xxxxxx Xxxxxxxx (Xxxxx Xxxxxx)
located within the Orlando Tradeport at the Orlando International Airport,
Orlando Florida and surrounding area designated as the premises (the "Premises"
or "Property") as shown hatched on Exhibit "A" attached hereto and made a part
hereof. Landlord and Tenant hereby agree that the Premises consist of
approximately 98,111 square feet of hangar deck space, office space, shop space,
as well as the contiguous ramp areas and vehicle parking lot.
ARTICLE 2. MASTER LEASE OBLIGATIONS
The Tenant acknowledges the receipt and review of a copy of the Master
Lease, a copy of which is attached hereto as Exhibit "B" and made a part of this
Agreement. This Sub-Lease is expressly subject to and conditioned upon all of
the terms and conditions of the Master Lease. As a material inducement to
Landlord to enter into this Sub-Lease, Tenant covenants that it will comply with
all of the terms and conditions of the Master Lease which, by their terms, are
intended to govern the rights and duties of Landlord's Sub-Tenants.
ARTICLE 3. TERM
The term of this Lease (the "Term") shall commence on May 1, 1995 (the
"Commencement Date"), as hereinafter defined and terminate on April 30, 1998.
Tenant shall be permitted to terminate this Sub-Lease at the completion of
twenty four (24) months of the Term or any time thereafter by paying to Landlord
a sum equal to fifty percent (50%) of the rent that would have otherwise become
due if the Sub-Lease
4
had not been so terminated. Tenant agrees to forward ninety (90) days advance
written notification to Landlord of such request to terminate.
ARTICLE 4. RENT
A. Tenant shall pay Landlord as "Base Rent" or "rent" for the Premises
the amount of {***} per month during the term of this Agreement. The Base
Rent includes amounts allocated to land rent, the rent for all personal
property or improvements in or comprising the Premises and real estate taxes
due hereunder but is exclusive of applicable Florida state sales tax and
personal property taxes, as more fully described in Article 6.
B. Tenant shall also pay to Landlord together with the Base Rent any
excise, sales, use, gross receipts or other tax imposed on or measured by such
rent, or imposed on account of the leasing of the Property (other than a tax
imposed on Landlord's income, capital or net worth) and which Landlord may be
required to pay or collect under any law now in effect or hereafter enacted.
C. Each monthly installment shall be due and payable to Landlord in
advance on the first day of each month during the Term at its notice address, or
such other place as Landlord may designate by written notice to Tenant.
D. If any part of the rent (including any additional rent) is not paid
within five (5) days after it is due, Tenant shall pay Landlord a late charge
equal to one and one-half percent (1.5%) of the amount due.
ARTICLE 5. IMPROVEMENTS
A. All fixtures, equipment, improvements and appurtenances attached to or
built into the Premises, or other personal property in the Premises on the
Commencement Date (collectively hereinafter "Leasehold Improvements") are
subject to the terms of this Sublease, but (i) shall be and remain a part of the
Premises; (ii) shall be deemed the property of Landlord; and (iii) shall not be
removed by Tenant.
B. All movable partitions, other business and trade fixtures, furnishings,
furniture, machinery and equipment, communications equipment, and other personal
property of a similar nature located in the Premises and acquired by or for the
account of Tenant, without expense to Landlord, which can be removed without
damage to the Building (collectively sometimes hereinafter called "Tenant's
Property"), shall be and shall remain the property of Tenant and may be removed
by it at any time during the Term. Tenant shall pay the cost of repairing any
damage to the Premises or to the Building resulting from such removal.
C. The rights, duties and obligations of the parties under this Lease
shall be effective upon the Commencement Date.
D. Prior to occupancy, representatives of the Landlord and Tenant shall
perform a thorough joint inspection of the Premises for purposes of establishing
Premises
5
acceptability. It is mutually agreed that the Tenant shall accept the Premises
in an "as is" condition.
E. If Landlord gives Tenant permission to enter into possession of the
Premises prior to the Commencement Date, such possession shall be deemed to be
upon all the terms, covenants, conditions and provisions of the Sub-Lease,
including payment of the rent.
F. Landlord grants Tenant exclusive usage of two (2) 115 volt, 400 cycle
ground power units (collectively, "GPU") and one (1) air compressor unit
positioned on the Premises, with each GPU possessing the capability to
accommodate the electrical requirements of two (2) Tenant aircraft. Landlord
agrees to furnish the GPU and air compressor unit in good and proper working
condition commensurate with the effective date of this Sub-Lease. Thereafter,
Tenant shall be solely responsible for all maintenance and repair costs
associated therewith. Upon the termination of this Sub-Lease, Tenant agrees to
return the GPU and air compressor unit in good and proper working condition,
excepting reasonable wear and tear.
ARTICLE 6. TAXES
Tenant shall pay all taxes levied against personal property and
trade fixtures placed by Tenant in or about the Premises. If any such taxes are
levied against Landlord or Landlord's property and if Landlord pays same, Tenant
shall promptly and upon demand pay to Landlord the amount so paid by Landlord.
ARTICLE 7. UTILITIES
Subject to the terms of Article 18 below, Tenant shall pay all charges
against the Premises for any and all utility service furnished to or consumed on
the Premises as well as, any and all costs associated with installation and
removal.
ARTICLE 8. TENANT INSURANCE
A. In conjunction with the provisions set forth in Article IX of the
Master Lease, the Tenant shall procure and keep in full force and effect the
following insurance coverage:
MINIMUM LIMITS PER OCCURRENCE
-----------------------------
Commercial General Liability: $25,000,000.00
Combined Single Limit per occurrence
and annual aggregate for Bodily/Persona
Injury and Broad Form Property Damage, including
but not limited to, Premises/Operations, Underground,
Explosion and Collapse Hazard, Products/Completed
Operations, Contractual and Independent Contractors.
6
Comprehensive Automobile Liability $25,000,000.00
Combined Single Limit per occurrence
and annual aggregate for Bodily
Injury and Property Damage (any vehicle, including
owned vehicles, non-owned vehicles and hired vehicles)
Hangarkeeper's Liability Insurance and
Garage Liability Insurance $25,000,000.00
Worker's Compensation Statutory Limits
Tenant acknowledges that its potential liability is not limited to
the amount of liability insurance coverage it maintains, nor to the limit
required herein.
B. All insurance provided for in this Article shall be effected under
valid and enforceable policies issued by insurers of recognized responsibility
and which are licensed to do business in the State of Florida.
C. All policies of insurance provided for in this Article shall name
Landlord and the Authority as additional insured. Each such policy shall contain
an agreement by the insurer that such policy shall not be canceled without at
least thirty (30) days prior written notice to Landlord.
D. At the commencement of the term of this Sub-Lease, Tenant shall deliver
to Landlord certificates of the insurance required to be maintained hereunder.
Tenant shall also deliver at least thirty (30) days prior to the expiration date
of such policy or policies (or of any renewal policy or policies), certificates
for the renewal of such policies of such insurance.
E. Landlord and Tenant on behalf of themselves and all others under them,
including any insurer, waive their rights of subrogation against the other for
damage to their respective property from perils insured under the standard form
fire and extended coverage policy.
ARTICLE 9. LIABILITY
A. Except as provided in Article 8 above or in Article 18 below, except
for Landlord's negligence or its acts of omission or commission, Tenant shall
indemnify and save harmless Landlord, the Premises, and the Authority from and
against any and all claims, liabilities, damages or losses resulting from injury
or death of any person or damage to property occurring on or about the Premises
or in any manner in conjunction with the use and occupancy of the Premises or
any part thereof by Tenant.
B. Except for Tenant's negligence or its acts of omission or commission,
Landlord shall indemnify and save harmless Tenant, the Premises and the
Authority from and against any and all claims, liabilities, damages or losses
resulting from injury or death of any person or damage to property occurring on
or about the Premises or in any manner in conjunction with the use and occupancy
of the Premises or any part thereof by Landlord.
7
C. The parties hereby agree that under no circumstances shall either party
be liable to the other for indirect, consequential, special or exemplary damage,
whether contract or tort (including strict liability and negligence), such as,
but not limited to, loss of revenue or anticipated profits.
ARTICLE 10. STORAGE
Storage of any material, equipment or other Tenant property outside
of the Premises is specifically prohibited except with the express written
consent of Landlord and the Authority.
ARTICLE 11. MAINTENANCE
A. Tenant shall, at Tenant's expense, repair and maintain the
mechanical, electrical, plumbing, heating and ventilating systems serving the
Premises (hereinafter the "Mechanical Systems") {***}. Notwithstanding the
above, Tenant shall be liable for all expenses, repairs and maintenance of
the Mechanical Systems which are occasioned by its negligence, abuse or
misuse of same.
Landlord represents that all of the mechanical, electrical,
plumbing, heating and ventilating systems are in good operating condition on the
date of beneficial occupancy.
B. Subject to the terms of Clause A above, Tenant shall maintain, repair
and replace as necessary, and take good care of the Premises (including without
limitation all windows, doors, signage, light fixtures, ballasts, and bulbs) and
Tenant's Property.
C. Landlord shall, at Landlord's expense, repair and maintain the Premises
structure and shall also comply with the other terms of this Article 11.
D. Tenant shall promptly respond to and clean up any release or threatened
release of any hazardous or contaminating substances into the premises, the
sanitary sewers, stormwater drainage systems, floors, soils, groundwater or
atmosphere, arising as a result of Tenant's activities in the Premises in a safe
manner in accordance with all applicable laws and as authorized or directed by
any federal, state, local and/or Authority agencies having authority to regulate
the permitting, handling, and clean up of such substances.
E. Tenant shall be responsible for the proper removal and disposal of all
regulated substances as defined by State and Federal Regulation (which ever is
applicable) generated by the Tenant as result of Tenant's activities on the
Premises. Such removal and disposal shall include, but not be limited to, the
Tenant manifesting such regulated substances under the Tenant's assigned
Environmental Protection Agency Identification Number and ensuring that removal
of such hazardous materials from the Premises and Landlord's Leasehold is
accomplished in accordance with Authority, local, state and federal guidelines.
8
Additionally, environmental contamination which impacts the Premises
as a result of Tenant's improper storage, handling, or leakage of any Tenant's
stored regulated substances on the Premises, shall be the sole responsibility of
Tenant. Tenant shall also be responsible for the proper removal of all regulated
substances used on the Premises by Tenant following the termination of this
Agreement.
Tenant shall indemnify and save harmless Landlord, The Authority and
the Premises from and against any and all environmental claims, liabilities,
damages or losses, including but not limited to any penalty or fine imposed by
any governmental agency and the expense of cleaning up or disposing of any such
hazardous waste or materials, but only when such claims, liabilities, etc. stem
from the Tenant's use and occupancy of the Property after the Commencement Date.
Tenant shall have no responsibility for any retroactive claims and liabilities
and/or latent claims or liability including any type of environmental claims
which preceded or followed Tenant's occupancy.
F. Tenant shall give Landlord prompt written notice of any damage to or
defective condition in any part or appurtenance of the Premises.
G. Except as provided herein, Landlord shall have no liability to Tenant
nor shall Tenant's covenants and obligations under this Sub-Lease be reduced or
abated in any manner whatsoever by reason of any inconvenience, annoyance,
interruption or injury to business arising from Landlord's making any repairs or
changes which Landlord is required or permitted by this Sub-Lease, the Master
Lease or required by law to make in or to any portion of the Premises, provided
such repairs or changes are made at a time when the Premises are not being
utilized for work by the Tenant or are otherwise made in a manner which does not
interfere with Tenant's use of the Premises. Landlord shall nevertheless use its
best efforts to minimize any interference with Tenant's business in the
Premises.
H. Notwithstanding anything to the contrary contained in this Agreement,
Tenant shall have no responsibility or obligation or be required to indemnify
the Landlord for any maintenance obligation where such obligation is not caused
by Tenant's use and occupancy of the Premises or where the obligation is caused
by other parties such as other tenants of the Landlord or the Landlord, its
agents, employees or guests.
ARTICLE 12. ALTERATIONS
Tenant shall make no modifications, alterations or additions to the
Premises, without the prior written consent of Landlord and the Authority. Any
modifications, additions or alterations made with Landlord's and the Authority's
prior written consent shall be made in a workmanlike manner so as not to weaken
the structure of the Building or the Premises or to invalidate any roof,
equipment or other warranty or to lessen the Building's value. All such
alterations and improvements shall become and remain the property of Landlord,
provided, however, that Landlord may, at Landlord's option, require Tenant at
Tenant's expense to remove any such modifications, additions or alterations at
the termination of this Sub-Lease and to restore the Premises to its original
condition at the Commencement Date of this Sub-Lease.
9
ARTICLE 13. DAMAGE AND DESTRUCTION
If, during the term of this Sub-Lease, the Premises, or any part thereof,
are damaged or destroyed by fire or other casualty, Landlord shall, subject to
Authority approval, within a reasonable period of time after notice of the
damage or destruction and receipt of insurance proceeds, repair and restore the
Premises to substantially the same condition as prior to such casualty, to the
extent that insurance proceeds are made available therefor. If such damage or
destruction renders the Premises or any portion thereof unusable, the rent shall
be equitably abated in direct proportion to the percentage of total space
rendered untenable for the period from the date of such damage or destruction to
the date the Premises are repaired or restored.
ARTICLE 14. CONDEMNATION, LOSS OF ACCESS
A. If all or part of the Premises shall be taken or condemned by a
competent authority for a public or quasi-public use or purpose or if there is a
negotiated purchase by such authority under threat of such taking, and if the
loss of that part so taken substantially interferes with the use of the Premises
by Tenant, Tenant may then terminate this Sub-Lease by giving Landlord written
notice within thirty (30) days from the occurrence of such taking and
termination shall be effective as of the date of such taking.
B. If part of the premises is so taken without substantially interfering
with the use of the Premises by Tenant, or if Tenant elects not to terminate
this Sub-Lease pursuant to Paragraph 14.A. above, this Sub-Lease shall not be
terminated. Landlord shall restore any damage to the Premises caused thereby in
a manner consistent with the remaining condition of the Premises and the rent
for the Premises shall be proportionately reduced commencing on the date when
possession of the part so taken is surrendered by Tenant.
ARTICLE 15. DEFAULT/EARLY TERMINATION
A. The following shall be events of default under this Sub-Lease: (i) if
Tenant defaults in payment of any monetary amount due hereunder; (ii) if Tenant
fails to perform any other term, covenant, condition or obligation of Tenant
under this Sub-Lease and fails to cure such default within fifteen (15) days (or
if such default specified by Landlord is not capable of cure within such 15 day
period, if Tenant fails immediately after notice from Landlord to commence to
cure such default, diligently to pursue completion of such cure, and to complete
such cure within ninety (90) days after such notice); or, (iii) if Tenant
abandons or vacates the Premises, or if the Premises remain unoccupied for a
period of thirty (30) days or more.
B. Upon any such event of default, Landlord may without prejudice to its
other rights hereunder, do any one or more of the following: (i) terminate this
Sub-Lease and reenter and take possession of the Premises; (ii) recover
possession of the Premises (with or without terminating this Sub-Lease, at
Landlord's option) in the manner prescribed by any statute relating to summary
process, (iii) Landlord may relet the Premises as Landlord may see fit without
thereby avoiding or terminating this Sub-Lease, and for the purpose of such
reletting, Landlord is authorized to make such repairs to the Premises as may be
necessary
10
to conform with the terms of this Sub-Lease and if a sufficient sum is not
realized from such reletting (after payment of all costs and expenses of such
repairs and the expense of such reletting and the collection of rent accruing
therefrom) each month to equal the sums due from Tenant hereunder, then Tenant
shall pay such deficiency upon demand therefor; and (iv) Landlord may declare
immediately due and payable all the remaining installments of the rent and such
amount, less the fair rental value of the Premises for the remainder of the
Term, shall be construed as liquidated damages and shall constitute a debt
provable in bankruptcy or receivership. In computing such liquidated damages,
there shall be added to such deficiency any reasonable expenses as Landlord may
incur in connection with reletting, such as court costs, attorneys' fees and
disbursements, brokerage fees, and for putting and keeping the Premises in the
condition required upon termination pursuant to the terms of this Sub-Lease. The
failure of Landlord to relet the Premises or any part thereof after recovery of
possession shall not release or affect Tenant's liability for damages. Landlord
shall in no event be liable in any way whatsoever for failure to relet the
Premises, or in the even that the Premises are relet, for failure to collect the
rent under such reletting. All of the damages which are specified in this
Sub-Lease are in addition to all other damages and costs to which Landlord may
be entitled under the laws of the State of Florida.
C. After default, the acceptance of the rent (or any portion thereof) by
Landlord shall not be held to be a waiver of its rights to terminate this
Sub-Lease, and Landlord may re-enter and take possession of the Premises as if
no rent had been accepted after such default. All of the remedies given to
Landlord in this Sub-Lease in the event of default by Tenant shall be deemed
cumulative and the election of one shall not be deemed a waiver of any other or
further rights or remedies.
D. If Tenant shall file a voluntary petition pursuant to the Bankruptcy
Code or any successor thereto, or take the benefit of any insolvency act, or be
dissolved, or if an involuntary petition be filed against Tenant pursuant to the
Bankruptcy Code or any successor thereto, or if a receiver shall be appointed
for its business or its assets and the appointment of such receiver is not
vacated within thirty (30) days after such appointment, or if it shall make an
assignment for the benefit of its creditors, then and forthwith thereafter
Landlord shall have all of the rights provided In this Article in the event of
non-payment of the rent.
ARTICLE 16. ASSIGNMENT AND SUBLETTING
Except for assignment to its parent or subsidiary, Tenant may not assign
this Sub-Lease in whole or in part or sublet any part of the Premises without
Landlord's and the Authority's prior written consent, such consent not to be
unreasonably withheld or delayed if the use is for Airport-related activities.
No such assignment or subletting shall relieve Tenant from performing its
obligations hereunder. An unauthorized assignment shall be void and of no
effect.
ARTICLE 17. USE OF PREMISES BY TENANT
A. The Premises shall be used by the Tenant for the parking and storage of
aircraft and the performance of aircraft maintenance for those aircraft owned,
operated
11
and/or leased by the Tenant and associated support purposes of same, consistent
with Tenant's, industry and all governmental rules, regulations and guidelines
and for no other purposes. The Landlord represents such functions can lawfully
be conducted on the Premises. Tenant, at Tenant's sole cost and expense, shall
comply with all such requirements of insurers, restrictive covenants, laws,
governmental rules, regulations and orders, present or future, including but not
limited to making any alterations, additions or improvements to the Premises
which may be required for Tenant's use of the Premises during the term of this
Sub-Lease.
B. It is expressly agreed and understood by the Tenant that at no time
shall painting activity of any kind be permitted in, around or on the Premises.
C. Tenant shall not place a load upon any floor of the Premises which
exceeds the load per square foot which such floor was designed to carry, nor
install business machines or mechanical equipment which cause excessive noise or
vibrations. Landlord represents the existing load bearing capacity of the hangar
deck floor portion of the Premises is sufficient for all Tenant's permitted uses
herein set forth.
ARTICLE 18. USE OF PREMISES BY LANDLORD
A. Upon notice given to Tenant as far in advance as is possible, Landlord
may from time to time request Tenant's consent for Landlord's use of up to Ten
Thousand (10,000) square feet of usable hangar deck floor space of the Premises
on a non-dedicated, ad-hoc and temporary basis. Tenant will not withhold its
consent to such request(s) for use by Landlord so long as the Tenant reasonably
determines that the same will not interfere with Tenant's use of the Premises in
any material manner. Tenant's consent to such request(s) however, may be
conditioned upon the imposition of reasonable use restrictions as to the length
and frequency of such usage by Landlord and the payment of any out-of-pocket
costs estimated to be incurred by Tenant in connection with the Landlord's use
of electricity or other utilities serving the Premises.
B. As consideration for this Sub-Lease and subject to the other terms of
this Article 18, it is mutually agreed Landlord's use of the Premises shall be
at no charge to Landlord; however, in consideration of Landlord's usage of the
Premises at no charge, Landlord agrees that any and all economic benefit derived
from such usage, including but not limited to, hangar storage fees, shall be
paid in cash to the Tenant and Landlord shall charge its customers a standard
and customary fee for such usage.
C. Landlord warrants and represents to Tenant that it shall maintain
adequate, prudent and/or statutory comprehensive General Liability,
Hangarkeeper's Liability, Automobile Liability and Worker's
Compensation/Employer's Liability Insurance at all times in conjunction with
Landlord's use and occupancy of the Premises.
D. Except for Tenant's negligence or acts of omission or commission,
Landlord shall indemnify and save harmless Tenant, the Premises and the
Authority from and against any and all claims, liabilities, damages or losses
resulting from injury or death of any person or damage to property occurring on
or about the Premises or in any manner in conjunction with the use and occupancy
of the Premises or any part thereof by Landlord.
12
ARTICLE 19. ESTOPPEL CERTIFICATES
When requested by Landlord, Tenant shall execute an estoppel certificate
to evidence the existence of any default by Landlord or of any prepayment of
rent or other facts with respect to this Sub-Lease as Landlord may reasonably
require.
ARTICLE 20. QUIET ENJOYMENT
Landlord covenants that it has the full right and authority to make this
Sublease and that if Tenant pays the rent and performs all of the terms of this
Sub-Lease, Tenant may peaceably and quietly enjoy and possess the Premises
throughout the term hereof, subject only to the conditions herein set forth,
including the applicable terms of the Master Lease.
ARTICLE 21. FORCE MAJEURE
The time allowed for the performance of either Party's covenants
hereunder, except for the payments of rents and fees if necessary, shall be
extended by an amount of time equal to any delay caused by tornado, windstorm,
other casualties or acts of God, strikes, labor difficulties, walkouts, riots,
governmental regulation, unavailability of labor or materials, delays caused by
either Party relating to approvals or otherwise, or any other cause beyond the
reasonable control of either Party.
ARTICLE 22. EXPIRATION
Upon the expiration or earlier termination of this Sub-Lease, Tenant shall
surrender to Landlord the Premises in substantially the same condition and
repair, ordinary wear and tear excepted, as existed on the Commencement Date.
No spill, deposit, emission, leakage or other release of any hazardous or
contaminating substance caused by Tenant, its invitees, agents or subcontractors
in the Premises or the drainage systems, soils or groundwaters associated
therewith shall be deemed "ordinary wear and tear". Tenant shall be responsible
to promptly and completely clean up any such release and shall surrender the
Premises free of any contamination.
ARTICLE 23. SUCCESSORS AND ASSIGNS
The covenants and agreements in this Sub-Lease of Landlord and Tenant
shall bind and inure to the benefit of their successors and permitted assigns.
ARTICLE 24 NONWAIVER
No waiver of any condition or covenant of this Sub-Lease by either party
shall be deemed to imply or constitute a further waiver of the same or any other
condition or covenant nor shall be construed to be a waiver on the part of
Landlord of any right or remedy in law or otherwise.
13
ARTICLE 25. HOLDING OVER
Any holding over beyond the expiration of the term of this Sub-Lease shall
be as a tenancy from month to month at one and one-half (1.5) times the monthly
rental rate that was paid during the last month of the Lease Term, and shall
otherwise be on the same terms and conditions as herein specified. Such holdover
shall be conditional in part upon Authority's extension of the Master Lease.
Tenant agrees to vacate the Premises upon thirty (30) days advance written
notice from Landlord.
ARTICLE 26. RIGHT OF ENTRY
Landlord shall have the right to enter the Premises to examine the
condition thereof or to make repairs which Landlord and/or the Authority deems
necessary for the safety, preservation or improvement of the Premises, to show
the same, and to place upon the Premises any signs desired by Landlord. Each
such entry by Landlord in accordance with this Article 26 shall be made during
normal business hours (except in case of emergency) and otherwise in accordance
with Sub-Article 11(G) above.
ARTICLE 27. MECHANICS' LIENS
Tenant shall defend, indemnify and save harmless Landlord from and against
any and all mechanics' and other liens and encumbrances filed by any person
claiming through or under Tenant, including security interests in any materials,
fixtures, equipment or any other improvements or appurtenances installed in and
constituting part of the Premises and against all costs, expenses and
liabilities (including reasonable attorney's fees) incurred in connection with
any such lien or encumbrance or any action or proceeding brought thereon. Tenant
at its expense shall procure the satisfaction or discharge of record of all such
liens and encumbrances within twenty (20) days after the filing thereof. Under
no circumstances shall the interest of Landlord in and to the Property be
subject to liens for improvements made by Tenant or subject to any mechanic's,
laborer's or material man's liens or any other lien or charge on account of or
arising from any contract or obligation of Tenant.
ARTICLE 28. TRANSFER OF LANDLORD'S INTEREST
Landlord may assign, in whole or in part, subject to approval of the
Authority, its rights and obligations under this Sub-Lease and its rights and
obligations in and to the Property. The term "Landlord" as used in this
Sub-Lease, shall be limited to mean and include only the owner or owners of
Landlord's interest in this Sub-Lease at the time in question. Upon any transfer
of such interest, Landlord herein named (and in case of any subsequent transfer,
the then transferor) shall thereafter be relieved of all liability for the
performance of any covenants or agreements on the part of Landlord contained in
this Sub-Lease.
14
ARTICLE 29. SECURITY DEPOSIT
A. At Tenant's option, it shall either deposit with Landlord the sum of
{***} or obtain, maintain and subsequently deliver to Landlord prior to the
Commencement Date, an original Letter of Credit in the amount of {***} as
security for the full and faithful performance of Tenant's obligations under
this Sub-Lease (individually and collectively, "Security Deposit"). Such
Letter of Credit shall be drawn upon a United States Bank, in favor of the
interests of the Landlord.
B. At any time after the establishment of the Security Deposit should any
portion of Tenant's rent balance due Landlord become more than thirty (30) days
past due, Landlord shall have the right, without prior notification or
authorization of Tenant, to draw upon said Security Deposit in an amount
sufficient to cause Tenant's balance due to once again become current.
C. In the event Landlord shall be compelled to utilize Tenant's
established Security Deposit, Landlord shall have the right to request a
replacement Security Deposit to be furnished by Tenant within five (5) business
days from such request, for either the previous specified amount or an increased
amount, should Tenant's payment history warrant such action.
D. In the event Tenant forwards the Security Deposit in cash, Landlord
agrees to place such funds in an interest-bearing money market account, at a
federally insured bank or savings and loan institution. Any and all interest
earned thereon shall be deemed part of the Security Deposit and available for
refund to the Tenant at the termination of this Sublease, provided Tenant is in
full compliance with the terms and conditions set forth herein.
E. If Tenant defaults with respect to any provision of this Sub-Lease,
including payment of the rent, Landlord may use, apply or retain all or any part
of the Security Deposit for the payment of any rent, or to compensate Landlord
for any other loss, cost or damage which Landlord may suffer by reason of
Tenant's default. If any portion of the Security Deposit is so used or applied,
Tenant shall, within five days after notice thereof, deposit cash with Landlord
in an amount sufficient to restore the Security Deposit to its original amount,
and Tenant's failure to do so shall be a default of this Sub-Lease. If Tenant
shall fully and faithfully perform every provision of this Sub-Lease, the
Security Deposit or any balance thereof shall be returned to Tenant (or, at
Landlord's option, to the last transferee of Tenant's interest hereunder) at the
expiration of the Term and upon Tenant's vacation of the Premises. If the
Property is sold, the Security Deposit may be transferred to the new owner, who
shall assume all obligations with respect thereto in writing and Landlord shall
be discharged from further liability with respect thereto. The Security Deposit
shall in no event be considered an advance rental payment, nor a measure of
Landlord's damage.
15
ARTICLE 30. CURING TENANT'S DEFAULTS
A. If Tenant defaults in the performance of any of its obligations under
this Sub-Lease, Landlord without waiving such default may (but shall not be
obligated to) perform the same for the account and at the expense of Tenant,
without notice in a case of emergency, and in any other case only if such
default continues after the expiration of the later of; (i) ten (10) days from
the date Landlord gives Tenant notice of its intention so to do; or (ii) the
expiration of the applicable grace period provided in this Sub-Lease for cure of
such default.
B. In the event of a default by Tenant, any expenses incurred by Landlord,
including reasonable attorneys' fees involved in collection of the rent or any
part thereof or enforcing any rights against Tenant, including the rights set
forth in this Article, or curing or endeavoring to cure any default of Tenant
under or in connection with this Sub-Lease, including any costs or expenses
involved in instituting and prosecuting summary proceedings, shall be due and
payable within ten (10) days of Landlord's demand as additional rent.
ARTICLE 31. LIMITATION OF LANDLORD'S LIABILITY
Landlord's obligations hereunder shall be binding upon Landlord only for
the period of time that Landlord is in ownership of the Property. Upon
termination of that ownership, Tenant, except as to any obligations which have
then matured, shall look solely to Landlord's successor in interest in the
Property for the satisfaction of each and every obligation of Landlord
hereunder.
ARTICLE 32. SIGN CONTROL
Except for such signs, awnings, signals, or advertisements preapproved by
the Landlord prior to beneficial occupancy, which approval shall not be
unreasonably withheld or delayed, Tenant shall not affix, paint, erect or
inscribe any sign, projection, awning, signal or advertisement of any kind to
any part of the Building or the Premises, including the inside or outside of the
windows or doors, without the written consent of Landlord. Landlord shall have
the right to withdraw such consent at any time and to require Tenant to remove
any sign, projection, awning, signal or advertisement affixed to the Building or
the Premises. If such work is done by Tenant without the express written consent
of Landlord and the Authority, Landlord shall have the right to remove the same
without being liable to Tenant and to charge the cost of such removal to Tenant
as additional rent, payable within ten (10) days of Landlord's demand.
ARTICLE 33. RELOCATION OF PREMISES
In the event Landlord locates a Tenant who is desirous of subleasing the
Premises on a long term basis or a buyer for the Premises, Landlord reserves the
right to relocate the Tenant to an alternate hangar facility of sufficient size
on the same or better economic conditions and meeting the existing facility
requirements of Tenant. In such event, Landlord agrees to reimburse Tenant its
reasonable relocation expenses, including without limitation, moving costs,
brokers fees, etc. and shall provide Tenant with a minimum of 60 days advance
written notification.
16
ARTICLE 34. MISCELLANEOUS
A. If Tenant is a corporation or partnership, each individual executing
this Sub-Lease on behalf of said corporation or partnership represents and
warrants that he is duly authorized to execute and deliver this Lease on behalf
of said corporation or partnership in accordance with the duly adopted
resolution of the Board of Directors of said corporation or with the bylaws of
said corporation or under pertinent partnership agreements, that any required
consents or approvals of third parties have been obtained, and that this
Sub-Lease is binding upon said corporation or partnership.
B. In any action or proceeding which Landlord or Tenant may be required to
prosecute or enforce its respective rights hereunder, the unsuccessful party
agrees to pay all costs incurred by the prevailing party therein, including
reasonable attorneys' fees (including on any appeal).
C. Should any clause or provision of this Lease become unenforceable
because of present or future laws or any regulation of any governmental entity,
the parties hereto agree that the remaining parts of this Sub-Lease shall not be
affected thereby unless such clause or provision is, in the reasonable
determination of either Party, essential and material to its rights, in which
event either Party shall have the right to terminate this Sub-Lease by notice to
the other.
D. Tenant and Landlord both waive a trial by jury of any issues arising in
any action or proceeding between the parties hereto or their successors, under
or connected with this Sub-Lease.
E. This Sub-Lease shall be deemed to have been made in and shall be
construed in accordance with the laws of the State of Florida.
F. This Sub-Lease represents the final resolution of all prior discussions
between Landlord and Tenant and sets forth all of the covenants, promises,
agreements, conditions and understandings between them. There are no covenants,
promises, agreements, conditions or understandings, either oral or written
between Landlord and Tenant other than as are herein set forth. No subsequent
alteration, amendment, change or addition to this Sub-Lease shall be binding
upon Landlord or Tenant unless made in writing and signed by each.
G. The captions appearing within the body of this Sub-Lease have been
inserted as a matter of convenience only and in no way define, limit or enlarge
the scope or meaning of this Sub-Lease or of any provision hereof.
H. No payment by Tenant or receipt by Landlord of a lesser amount than the
rent payment herein stipulated shall be deemed to be other than on account of
the rent, nor shall any endorsement or statement on any check or payment as rent
be deemed an accord and satisfaction (unless Landlord expressly agrees to an
accord and satisfaction in a separate agreement duly accepted by Landlord), and
Landlord may accept such check or payment without prejudice to Landlord's right
to recover the balance of such rent or pursue any other remedy provided in this
Sub-Lease.
17
ARTICLE 35. RECORDING
Tenant shall not record this Sub-Lease without Landlord's prior written
consent. However, either party shall, upon written request of the other,
execute, acknowledge and deliver to the other a "short form" memorandum of this
Sub-Lease for recording purposes.
ARTICLE 36. EXCLUSIVE RIGHTS OF LANDLORD
Tenant understands and acknowledges that Landlord has acquired through the
execution of its lease and operating agreement with the Authority, certain
rights to conduct specific aviation-related activities, ("Activities"). Such
Activities include line services (including all fueling), ground handling,
aircraft parking and storage and the provision of office space. Tenant expressly
agrees not to engage in any of the listed Activities on Landlord's Premises,
other than those described in Article 17, herein, which would infringe upon
Landlord's duly acquired rights as granted by the Authority.
ARTICLE 37. NOTICES
All notices to be given to either party shall be deemed given if made in
writing and deposited in the United States mail, postage prepaid, return receipt
requested, or overnight courier service and addressed to the parties at the
following address:
Landlord's Address: Page Avjet Corporation
C/O Signature Flight Support Corporation
Attention: General Manager
Orlando International Airport
0000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
and
Signature Flight Support Corporation
Attention: Corporate Contracts Manager
Signature Plaza
000 X. Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Tenant's Address: Midway Airlines Corporation
Attention: Mr. Xxx Xxxxx
0000 X. Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
with a copy to: Xxxxxxxxx & Xxxxxxxxxxx, P.C.
0 Xxxxx Xxxxxxxxx Xxxxx #00X
Xxxxxxx, Xxxxxxxx 00000
Attention: X.X. Xxxxxx
18
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
day and year first above written.
LANDLORD:
PAGE AVJET CORPORATION
Signed and acknowledged
the presence of:
/s/ [ILLEGIBLE] By: /s/ Xxxxxxxxx X. Xxxxxxx
--------------------------- --------------------------------
/s/ [ILLEGIBLE] Its: Senior Vice President
--------------------------- --------------------------------
APPROVED AS TO FORM
/s/ [ILLEGIBLE]
--------------------------
LEGAL DEPT.
TENANT:
Signed and acknowledged MIDWAY AIRLINES CORPORATION
in the presence of:
/s/ [ILLEGIBLE] By: /s/ Xxxxxxxx X. Xxxxxx
--------------------------- --------------------------------
/s/ [ILLEGIBLE] Its: Vice President
--------------------------- --------------------------------
19
The Greater Orlando Aviation Authority hereby consents to this Sublease.
ATTEST: GREATER ORLANDO AIRPORT AUTHORITY
________________________ _________________________________
APPROVED this ____ day of ____________, 19__.
________, GREATER ORLANDO AVIATION AUTHORITY - GENERAL COUNSEL
By:
--------------------------------------
Greater Orlando Aviation Authority - General Counsel
THE STATE OF FLORIDA
COUNTY OF ORANGE
This instrument was acknowledged before me on May 1, 1995 by Xxxxxxxxx X.
Xxxxxxx, (Title) Senior Vice President of Page Avjet Corporation, a Delaware
corporation, on behalf of said corporation.
/s/ Xxxxx Xxxxx Xxxxx
-------------------------------
Notary Public, State of Florida
-----------------
SEAL
XXXXX XXXXX XXXXX -------------------------------
----------------- Printed or Typed Name of Notary
My commission expires: ________
THE STATE OF ILLINOIS
COUNTY OF XXXX
This instrument was acknowledged before me on the 26th day of April, 1995
by Xxxxxxxx X. Xxxxxx, (Title) Vice President of Midway Airlines Corporation, a
Delaware corporation, on behalf of said corporation.
/s/ Xxxx X. Xxxxxxx
-------------------------------
Notary Public, State of Illinois
-----------------
SEAL
XXXX X. XXXXXXX /s/ Xxxx X. Xxxxxxx
----------------- -------------------------------
Printed or Typed Name of Notary
My commission expires: February 4, 1997
20
EXHIBIT "A"
SKETCH OF LAND DESCRIPTION
[MAP OMITTED]
[MAP OMITTED]
