================================================================================
FIFTH SUPPLEMENT TO LEASE
between
XXXXXX-XXXXX COUNTY PORT AUTHORITY, as Lessor
and
BURLINGTON AIR EXPRESS INC., as Lessee
Dated as of December 1, 1996
================================================================================
Filed for record on on December 19, 1996 at This Fifth Supplement to Lease
10:30 o'clock a.m., E.D.T., at M96- supplements a Lease between the
3194C08, in the XXXXX COUNTY, OHIO RECORDS named Lessor and Lessee dated as
of April 1, 1989, as previously
supplemented by a First Supplement
to Lease dated as of January 1,
1990, a Revised and Amended Second
Supplement to Lease dated as of
September 1, 1990, a Third
Supplement to Lease dated as of
June 1, 1991, and a Fourth
Supplement to Lease dated as of
March 1, 1994, each between the
Lessor and the Lessee. A Restated
Memorandum of Lease was filed for
record on October 1, 1990 at 12:44
o'clock p.m. E.D.S.T., at M90-
1318C06 in the Records of Xxxxx
County, Ohio, the Third Supplement
to Lease was filed for record on
October 1, 1991 at 8:55 o'clock
a.m. E.D.S.T., at M91-1446A06, and
the Second Restated Memorandum of
Lease was filed for record on
March 22, 1994 at 11:24 o'clock
a.m., E.S.T., at M94-746C09, in
the Records of Xxxxx County, Ohio.
158
FIFTH SUPPLEMENT TO LEASE
This Fifth Supplement to Lease (the Fifth Supplement) dated as of
December 1, 1996 between the Xxxxxx-Xxxxx County Port Authority (the Issuer), a
port authority and political subdivision duly organized and validly existing
under the laws of the State of Ohio (the State), and Burlington Air Express Inc.
(formerly known as Burlington Air Express USA Inc.) (the Company), a for-profit
corporation organized and existing under the laws of the State of Delaware and
duly authorized to transact business in the State (with each term used in the
recitals that follow as a defined term but not defined therein having the
meaning assigned to it expressly or by reference in Section 1);
W I T N E S S E T H:
WHEREAS, the Issuer, as lessor, and the Company, as lessee, have
heretofore entered into a Lease dated as of April 1, 1989 (the Original Lease),
as amended and supplemented by a First Supplement to Lease dated as of January
1, 1990 (the First Supplement), a Revised and Amended Second Supplement to Lease
dated as of September 1, 1990 (the Second Supplement), a Third Supplement to
Lease dated as of June 1, 1991 (the Third Supplement) and a Fourth Supplement to
Lease dated as of March 1, 1994 (the Fourth Supplement), each between the Issuer
and the Company (as so amended and supplemented, the Existing Lease) and have
caused a Restated Memorandum of Lease, the Third Supplement, the Fourth
Supplement and a Second Restated Memorandum of Lease to be filed for record as
described on the cover page hereto; and
WHEREAS, the Issuer is obligated under Section 11.2 of the
Existing Lease to reimburse the Company for any United States Customs Service
charges incurred by the Company with respect to its operations at the Airport;
and
WHEREAS, pursuant to the Act and the Joint Participation Agreement
entered into with and at the request of the Company, the Issuer entered into
contracts for the acquisition, construction, installation, improvement and
equipping of the Project in order to expand the area of the Ramp, as to which
Ramp Expansion the Company is to have a preferential right of use in common with
all other users of the Airport, and the Ramp Expansion was substantially
completed and the Company commenced use of the Ramp Expansion in September 1996;
and
WHEREAS, the Project will enhance the use and value of the Leased
Premises to the Authority and the Company and create and preserve jobs and
employment opportunities and promote economic development within the
jurisdiction of the Issuer; and
WHEREAS, in accordance with the Joint Participation Agreement, the
Company has provided money to the Issuer to pay certain Project costs heretofore
due and payable, in anticipation of being reimbursed for its provision for
payment of those costs from proceeds of the Bonds which the Issuer has
determined to issue, sell and deliver at the request of the Company in the
aggregate principal amount of $4,000,000, for such purpose and to pay any
additional Project costs, pursuant to the Act, the Inducement Resolution and the
Joint Participation Agreement; and
WHEREAS, the Company, in consideration of the services provided
and to be provided by the Issuer under the Existing Lease, the Issuer's
acquisition, construction, installation, improvement and equipping of the
Project in order to expand the area of the Ramp, the Company's preferential
right of use of the Ramp Expansion and the Issuer's determination to issue
revenue obligations to provide funds to pay, or to reimburse the Company for
provision of funds for payment of, costs of the Project, has agreed to (i)
assume a portion of the charges for United States Customs Service charges with
respect to its operations at the Airport for 1996, 1997 and 1998 and all of
those charges for which bills are received on or after December 31, 1998 with
respect to its operations, (ii) an increase in the Ramp Fees in respect of the
additional
159
costs to the Issuer of maintaining the Ramp Expansion, (iii) a reduction in the
Expansion Area by the area of the Ramp Expansion, and (iv) pay to or for the
account of the Issuer amounts sufficient to pay, on condition that they be used
to pay, the principal of and interest and any premium on the Bonds as provided
in the Use Agreement; and
WHEREAS, this Fifth Supplement modifies certain contract rights of
the Issuer and the Company under the Existing Lease but does not otherwise
affect the leasehold interest established by the Existing Lease;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained and contained in the Joint
Participation Agreement and the Use Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Issuer and the Company hereby covenant and agree as follows:
Section 1. Definitions. Each term used herein as a defined term
and not otherwise defined herein, unless the context or use requires otherwise,
shall have the meaning assigned to it in the Existing Lease. In addition to the
words and terms defined by reference or elsewhere in this Fifth Supplement, as
used herein:
"Bonds" means the $4,000,000 Airport Development Revenue Bonds,
Series 1996-1 (Burlington Air Express Inc. Obligor), issued by the Issuer
pursuant to Resolution No. 69-96 adopted on July 25, 1996.
"Joint Participation Agreement" means the agreement between the
Issuer and the Company, stated to be effective February 22, 1996 and fully
executed as of March 29, 1996, pursuant to which the Issuer agreed, among other
things, to let, and proceeded to let, contracts for the acquisition,
construction, installation, improvement and equipping of the Project, in
consideration of the Company's agreement to provide money to pay Project costs
due and payable prior to the issuance and delivery of the Bonds and of the other
agreements and covenants made therein by the Company.
"Project" means expansion of the existing Ramp at the Airport by
acquiring, constructing, installing, improving and equipping a general purpose
aircraft apron on the Ramp Expansion Site adjacent to the existing Ramp Site for
transient aircraft parking and loading and unloading operations, consisting of
4-inch limestone screenings covered by 8 inches of black bituminous material,
covered by 15 inches of concrete, together with any necessary taxiway lights,
two high mast apron flood lights, drainage facilities (including an oil and
water separation system), and relocation of portions of Air Cargo Parkway and
the access road between the Ramp and the Fuel Farm located formerly on the Ramp
Expansion Site onto adjacent property, and all necessary appurtenances.
"Ramp Expansion" means that portion of the Project other than the
acquisition, construction, installation and improvement of the relocated
portions of Air Cargo Parkway and the access road between the Ramp and the Fuel
Farm onto property adjacent to the Ramp Expansion Site.
"Ramp Expansion Site" means the real property described in Exhibit
A hereto.
"Use Agreement" means the Use Agreement, dated as of even date
herewith, between the Company and the Issuer, as amended or supplemented from
time to time.
160
Section 2. Ramp Expansion. The definition of "Ramp" in Section 1.1
of the Existing Lease shall be and hereby is amended to read as follows:
"Ramp" means the portion of the Project comprised of an
approximately 40-acre transient aircraft parking and loading and unloading ramp,
and necessary appurtenances thereto, constructed on the Ramp Site, together with
an approximately 10-acre expansion thereof, used for transient aircraft parking
and loading and unloading, and necessary appurtenances thereto, constructed on
the Ramp Expansion Site, and the taxiway connectors relating thereto.
The following definition of "Ramp Expansion Site" and a new
"Exhibit C-1" in the form of Exhibit A hereto shall be and are hereby added to
the Existing Lease:
"Ramp Expansion Site" means the real property described in Exhibit
C-1 hereto.
Section 3. United States Customs Service Charges. Notwithstanding
the provisions of the Existing Lease or any other existing agreement or course
of conduct or dealing, the Company has paid $100,000 to the Issuer in 1996 in
respect of Customs Service charges for which bills are received by the Company
in 1996 with respect to the Company's regularly scheduled flights arriving at
the Airport, and hereby agrees to pay to the Issuer the amount of $75,000 on
January 1, 1997 and on July 1, 1997 and the amount of $100,000 on January 1,
1998 and on July 1, 1998 in respect of such charges for which bills are received
by the Company in 1997 and 1998; provided, that the Issuer shall remain liable
under the Existing Lease for the payment of all Customs Service charges for
which bills are received by the Company on or before December 31, 1998 with
respect to Customs Service activities provided for the Company's regularly
scheduled flights arriving at the Airport, regardless of whether the foregoing
deposits to be made by the Company shall be sufficient for the payment of those
charges. Any Customs Service charges for which bills are received by the Company
on or after December 31, 1998 with respect to Customs Service activities
provided for the Company's flights arriving at the Airport, whether regularly
scheduled or otherwise, shall be paid by the Company, and the Issuer shall not
have any obligation for the payment or reimbursement of all or any part of those
charges.
Section 4. Expansion Site. The definition of "Expansion Site" in
Section 1.1 of the Existing Lease shall be and is hereby amended to read as
follows:
"Expansion Site" means a 54.952-acre Expansion Site presently
owned or leased by the Lessor and contiguous to the Initial Site, including the
Leased Expansion Site and the precise location of the balance of which will be
identified, when agreed upon by the Lessor and the Lessee, in a supplement to
this Lease to be executed and delivered by appropriate officers of the Lessor
and the Lessee and, so long as such site does not exceed 54.952 acres less the
Leased Expansion Site, without any further legislative action on behalf of the
Lessor; provided, that the location of the Expansion Site may be changed at any
time and from time to time by an appropriate instrument executed by appropriate
officers of the Lessor and the Lessee solely in the discretion of the Lessor and
the Lessee, without notice to or the consent of any other Person and, so long as
the size of the Expansion Site is not increased, without any further legislative
action on behalf of the Lessor.
Section 5. Ramp Fees. Clause (a)(ii) of Section 3.2 of the
Existing Lease shall be and is hereby amended, in its entirety, to read as
follows:
(ii) on or prior to each Rental Payment Date commencing with
the November 1991 Rental Payment Date, as a user fee for the
preferential
161
but common use of the Ramp, the Ramp Fees in an amount equal to
(A) during the Initial Term (I) prior to the November 1996 Rental
Payment Date, $38,368.97, (II) on the November 1996 Rental
Payment Date, $33,674.53, (III) on the December 1996 Rental
Payment Date, $55,445.21 (which includes the amounts of $5,442.67
with respect to use and maintenance of the Ramp Expansion Site
for each of the months September, October and November 1996), and
(IV) on and after the January 1997 Rental Payment Date,
$39,117.20, provided, that, the Ramp Fees to be paid under this
Section 3.2(a)(ii)(A) (under each of subclauses (I), (II), (III)
and (IV)) shall be adjusted upward, commencing on the Rental
Payment Date next following any date on which the Lessor,
pursuant to Section 2(b) of the Second Supplement pays, or causes
to be paid, for deposit or transfer to the Interest Account in
the Bond Fund, an amount sufficient to fund the Monthly Interest
Payment portions of the Basic Rent as set forth in Schedules I
and II of Exhibit D to this Lease, by, and shall thereafter
include, in addition to all other amounts payable hereunder, an
amount equal to $3,001.97, and (B) during any of the extension
periods provided pursuant to Section 2.5 hereof, an amount
adjusted, pursuant thereto, to the fair market value of the use
of the Ramp.
Section 6. Ratification of Lease; Integration. As amended and
supplemented hereby, the Existing Lease is, in all respects, ratified and
confirmed and remains in full force and effect. It is understood and agreed that
as of the date of execution and delivery of this Fifth Supplement, the Lease is
comprised only and exclusively of the Original Lease, the First Supplement, the
Second Supplement, the Third Supplement, the Fourth Supplement and this Fifth
Supplement, and that the Lease, as so constituted, together with the Guaranty
and the Assumption Agreement, constitute the entire understanding of the Issuer
and the Company with respect to the subject matter thereof and hereof, and that
the Lease, as so constituted, together with the Guaranty and Assumption
Agreement, supersede all other oral or written agreements, prior to the date of
execution and delivery of this Fifth Supplement, with respect thereto.
Section 7. General Agreements. This Fifth Supplement shall take
effect upon the execution and delivery hereof and shall continue in effect until
the expiration of the Lease Term. The Issuer and the Company agree that they
will execute and deliver such further documents and do such further acts and
things as are necessary fully to effect the purposes of this Fifth Supplement.
THIS FIFTH SUPPLEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE AND SHALL INURE TO THE BENEFIT OF AND BE BINDING UPON THE
ISSUER AND THE COMPANY AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS. Any
provision hereof invalid under any law shall be inapplicable and deemed omitted
herefrom, but shall not invalidate the remaining provisions hereof. This Fifth
Supplement may be executed in counterpart, and in several counterparts, each of
which shall be deemed an original.
(Balance of page intentionally left blank)
162
IN WITNESS WHEREOF, the Issuer and the Company have caused this
Fifth Supplement to Lease to be duly executed in their respective names by their
duly authorized officers all as of the date first hereinbefore written.
Signed and acknowledged as to XXXXXX-XXXXX COUNTY PORT
the Issuer in the presence of: AUTHORITY
/s/ Xxxxxxxx X. Xxxxxxxxxx By: /s/ Xxxxx X. Xxxxxxx
----------------------------- --------------------------------
Name: Xxxxxxxx X. Xxxxxxxxxx Xxxxx X. Xxxxxxx, President
/s/ Xxxxxxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------- --------------------------------
Name: Xxxxxxxxx X. Xxxxx Xxxxx X. Xxxxxxxxx,
(Witnesses as to both) Secretary-Fiscal Officer
Signed and acknowledged as to BURLINGTON AIR EXPRESS INC.
the Company in the presence of:
/s/ Xxxxx Xxxxxxx By: /s/ Xxxxx X. Xxxxx
----------------------------- --------------------------------
Name: Xxxxx Xxxxxxx Xxxxx X. Xxxxx, Assistant Treasurer
/s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxx
(Witnesses)
Approved as to form: /s/ Xxxx Xxxxxxxxx Xxx
------------------------------------
Xxxx Xxxxxxxxx Xxx, Staff Counsel
163
STATE OF OHIO )
)
COUNTY OF XXXXX )
On this 12th day of December, 1996, before me, a Notary Public in
and for said County and State, personally appeared Xxxxx X. Xxxxxxx and Xxxxx X.
Xxxxxxxxx, President and Secretary-Fiscal Officer, respectively, of the
Xxxxxx-Xxxxx County Port Authority, and acknowledged that they did sign the
foregoing instrument as such officers of said Port Authority, respectively, for
and on behalf of said Port Authority and by authority granted by law and by the
Board of Directors of said Port Authority and that the same is their voluntary
act and deed as such officers on behalf of said Port Authority and the voluntary
and corporate act and deed of said Port Authority.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed
my official seal on the day and year aforesaid.
[Seal] /s/ Xxxxxxxx Xxxxxxxxxx
-----------------------
Notary Public
XXXXXXXX X. XXXXXXXXXX
Notary Public, State of Ohio
My Commission Expires Aug. 19, 0000
XXXXXXXXXXXX XX XXXXXXXX )
)
COUNTY OF HENRICO )
On this 16th day of December, 1996, before me, a Notary Public in
and for said County and Commonwealth, personally appeared Xxxxx X. Xxxxx,
Assistant Treasurer of Burlington Air Express Inc., and acknowledged that he did
sign the foregoing instrument as such officer of said corporation for and on
behalf of said corporation and by authority granted by the Board of Directors of
said corporation and that the same is his voluntary act and deed as such officer
on behalf of said corporation and the voluntary and corporate act and deed of
said corporation.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed
my official seal on the day and year aforesaid.
[Seal] /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------
Notary Public
This instrument was prepared by: D. Xxxxx Xxxxxxx, Esq.
Squire, Xxxxxxx & Xxxxxxx L.L.P.
0000 Xxx Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
164
CERTIFICATE
The undersigned, Fiscal Officer of the Issuer under the aforesaid
Fifth Supplement to Lease, hereby certifies that the moneys required to meet the
obligations of the Issuer during the year 1996 under that Fifth Supplement to
Lease have been lawfully appropriated by the Board of Directors of the Issuer
for such purposes and are in the treasury of the Issuer or in the process of
collection to the credit of an appropriate fund, free from any previous
encumbrances. This Certificate is given in compliance with Sections 5705.41 and
5705.44, Ohio Revised Code.
Dated: December 18, 1996 /s/ Xxxxx X. Xxxxxxxxx
-----------------------
Secretary - Fiscal Officer,
Xxxxxx-Xxxxx County Port Authority
165
CONSENT OF DIRECTOR
The undersigned, The Director of Development of the State of Ohio,
by the undersigned duly authorized officer, hereby acknowledges receipt of
notice of, and hereby consents to, the foregoing Fifth Supplement to Lease and
the amendments, changes, modifications, covenants and agreements therein made to
the extent, if any, that those amendments, changes, modifications, covenants and
agreements are material to that Director.
THE DIRECTOR OF DEVELOPMENT
OF THE STATE OF OHIO
Dated: December 18, 1996 By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Deputy Director
166
CONSENT OF TRUSTEE
The undersigned, as Trustee under the Indenture identified in the
foregoing Fifth Supplement to Lease, by the undersigned duly authorized officer,
hereby (i) acknowledges receipt of notice of the foregoing Fifth Supplement to
Lease and the amendments, changes, modifications, covenants and agreements
therein made, (ii) determines that such amendments, changes and modifications of
the Lease are required in connection with changes in the Lease that are not to
the prejudice of the Trustee or the holders of the Bonds issued under that
Indenture, and (iii) consents to that Fifth Supplement to Lease and the
amendments, changes, modifications, covenants and agreements therein made.
MELLON BANK, F.S.B., as Trustee
Dated: December 18, 1996 By: /s/ Xxxx X. Xxxxxxx
-------------------
Vice President
167
EXHIBIT A
RAMP EXPANSION SITE
A parcel of land being a part of Section 10, Town 7 North, Range 9 East,
Swanton Township, Xxxxx County, Ohio, and being more particularly described as
follows:
Commencing at an iron pin at the Southeast corner of the Northeast quarter
of Xxxxxxx 00, Xxxxxxx Xxxxxxxx;
thence North 88[d] 46' 07" West, on the South line of the Northeast quarter
of Section 10, a distance of 1,539.26 feet to a point;
thence North 21[d] 23' 38" West, on a line being at right angles to the
centerline of Runway 7-25, a distance of 439.34 feet to a point on the
Southeasterly line of the existing 40,000 acre Burlington Apron;
thence South 68[d] 36' 22" West, on a line being 1362.50 feet Southeasterly
of as measured perpendicular to and parallel with the centerline of Runway 7-25
and on the Southeasterly line of the existing 40,000 acre Burlington Apron, a
distance of 930.00 feet to a point, said point being the TRUE POINT OF BEGINNING
of the parcel herein described; thence continuing South 68[d] 36' 22" West, on a
line being 1362.50 feet Southeasterly of as measured perpendicular to and
parallel with the centerline of Runway 7-25 and on the Southwesterly extension
of the Southeasterly line of the existing 40,000 acre Burlington apron, a
distance of 700.00 feet to a point;
thence North 21[d] 23' 38" West, on a line being at right angles to the
centerline of Runway 7-25, a distance of 625.25 feet to a point;
thence North 68[d] 36' 22" East, on a line being 737.25 feet, Southeasterly
of as measured perpendicular to and parallel with the centerline of Runway 7-25,
a distance of 700.00 feet to the Northwesterly corner of the existing 40,000
acre Burlington Apron;
thence South 21[d] 23' 38" East, on a line being at right angles to the
centerline of Runway 7-25, and on the Southwesterly line of the existing 40,000
acre Burlington Apron, a distance of 625.25 feet to the TRUE POINT OF BEGINNING
of the parcel herein described, containing 10.048 acres of land, more or less,
subject to all easements, zoning restrictions of record and legal highways.
The bearings used herein are for the purpose of describing angles only and
are not referenced to true or magnetic North.
168
