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EXHIBIT 10.28
EXECUTION COPY
SIXTEENTH SUPPLEMENTAL LEASE AGREEMENT
BY AND BETWEEN
MEMPHIS-SHELBY COUNTY AIRPORT AUTHORITY
AND
FEDERAL EXPRESS CORPORATION
DATED AS OF APRIL 1, 1997
AMENDING THE CONSOLIDATED AND RESTATED LEASE AGREEMENT DATED AS OF AUGUST 1,
1979 BETWEEN THE MEMPHIS-SHELBY COUNTY AIRPORT AUTHORITY AND FEDERAL EXPRESS
CORPORATION.
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TABLE OF CONTENTS
SECTION PAGE
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1 Definitions .......................................................... 6
2 Modification to the Fifteenth Supplemental Lease Agreement ........... 7
3 Granting Leasehold ................................................... 7
4 Term; Delivery and Acceptance of Possession ......................... 8
5 Rental ............................................................... 8
6 Hazardous Substances/Waste ........................................... 8
7 Lease Agreement Still in Effect; Provisions Thereof Applicable
to this Sixteenth Supplemental Lease Agreement ....................... 9
8 Descriptive Headings ................................................. 10
9 Effectiveness of this Sixteenth Supplemental Lease Agreement ......... 10
10 Execution of Counterparts ............................................ 10
11 Summaries............................................................. 10
Notary ............................................................... 12
Leased Parcel Summary ................................................ 13
Rental Summary ....................................................... 15
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SIXTEENTH SUPPLEMENTAL LEASE AGREEMENT
THIS SIXTEENTH SUPPLEMENTAL LEASE AGREEMENT, made and entered into as
of the 1st of April, 1997, by and between MEMPHIS-SHELBY COUNTY AIRPORT
AUTHORITY (herein sometimes referred to as "Authority"), a public and
governmental body politic and corporate of the State of Tennessee, and FEDERAL
EXPRESS CORPORATION (herein sometimes referred to as "Tenant"), a corporation
duly organized and existing under the laws of the State of Delaware and
qualified to do business in the State of Tennessee.
W I T N E S S E T H:
WHEREAS, Authority and Tenant on October 3, 1979 entered into a
Consolidated and Restated Lease Agreement dated as of August 1, 1979; and
WHEREAS, Authority and Tenant on April 7, 1981 entered into a First
Supplemental Lease Agreement dated as of April 1, 1981 (the "First Supplemental
Lease Agreement") so as to provide for the lease by Tenant from Authority of
additional land, buildings, and equipment to be included in the Project as
defined in the Lease Agreement all as set forth therein (such additional land,
buildings, and equipment being defined therein and hereinafter referred to as
the "1981 Federal Express Project"), all as set forth therein; and
WHEREAS, the Authority and Tenant on May 6, 1982 entered into a Second
Supplemental Lease Agreement dated as of January 1, 1982 (the "Second
Supplemental Lease Agreement") so as to provide for the lease by Tenant from
Authority of additional land to be included in this Project, all as set forth
therein; and
WHEREAS, Authority and Tenant on December 9, 1982 entered into a Third
Supplemental Lease Agreement dated as of November 1, 1982 (the "Third
Supplemental Lease Agreement") so as to release certain items consisting of
buildings and leased equipment in the 1981 Federal Express Project; and
WHEREAS, Authority and Tenant on September 29, 1983 entered into a
Fourth Supplemental Lease Agreement dated as of July 1, 1983 (the "Fourth
Supplemental Lease
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Agreement") so as to provide for the lease by Tenant from Authority of
additional land to be included in the Project, all as set forth therein; and
WHEREAS, Authority and Tenant on April 23, 1984 entered into a Fifth
Supplemental Lease Agreement dated as of February 1, 1984 (the "Fifth
Supplemental Lease Agreement") so as to provide for the lease by Tenant from
Authority of additional land to be included in this Project, all as set forth
therein; and
WHEREAS, Authority and Tenant on November 19, 1984 entered into a Sixth
Supplemental Lease Agreement dated as of April 1, 1984 (the "Sixth Supplemental
Lease Agreement") so as to provide for the lease by Tenant from Authority of
additional land to be included in this Project, all as set forth therein; and
WHEREAS, Authority and Tenant on November 19, 1984 entered into a
Seventh Supplemental Lease Agreement dated as of June 1, 1984 (the "Seventh
Supplemental Lease Agreement") so as to provide for the lease by Tenant from
Authority of additional land to be included in this Project, all as set forth
therein; and
WHEREAS, Authority and Tenant on November 4, 1988 entered into a Eighth
Supplemental Lease Agreement dated as of July 1, 1988, (the "Eighth Supplemental
Lease Agreement") so as to provide for the lease by Tenant from Authority of
additional land to be included in this Project, all as set forth therein; and
WHEREAS, Authority and Tenant on July 12, 1989 entered into a Ninth
Supplemental Lease Agreement dated as of June 1, 1989, (the "Ninth Supplemental
Lease Agreement") so as to provide for the lease by Tenant from Authority of
additional land to be included in this Project, all as set forth therein; and
WHEREAS, Authority and Tenant on October 1, 1991 entered into a Tenth
Supplemental Lease Agreement dated as of October 1, 1991, (the "Tenth
Supplemental Lease Agreement") so as to provide for the lease by Tenant from
Authority of additional land to be included in this Project, all as set forth
therein; and
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WHEREAS, Authority and Tenant on July 1, 1994 entered into a Eleventh
Supplemental Lease Agreement dated July 1, 1994, (the "Eleventh Supplemental
Lease Agreement") so as to provide for the lease by Tenant from Authority of
additional land to be included in this Project, all as set forth therein; and
WHEREAS, Authority and Tenant on July 1, 1993 entered into a Twelfth
Supplemental Lease Agreement dated July 1, 1993, (the "Twelfth Supplemental
Lease Agreement") so as to release a certain parcel of land from the 1981
Federal Express Project as described on Exhibit 1 attached thereto; and
WHEREAS, Authority and Tenant on June 1, 1995 entered into a Thirteenth
Supplemental Lease Agreement dated June 1, 1995, (the "Thirteenth Supplemental
Lease Agreement") so as to provide for the lease by Tenant from Authority of
additional land to be included in this Project and so as to release a certain
parcel of land from the 1981 Federal Express Project, all as set forth therein;
and
WHEREAS, Authority and Tenant on December 1, 1995 entered into a
Fourteenth Supplemental Lease Agreement dated January 1, 1996, (the "Fourteenth
Supplemental Lease Agreement") so as to provide for the lease by Tenant from
Authority of additional land to be included in this Project, all as set forth
therein; and
WHEREAS, Authority and Tenant on January 1, 1997 entered into a
Fifteenth Supplemental Lease Agreement dated January 1, 1997, (the "Fifteenth
Supplemental Lease Agreement") so as to provide for the lease by Tenant from
Authority of additional land to be included in this Project, all as set forth
therein; and
WHEREAS, the said Consolidated and Restated Lease Agreement dated as of
August 1, 1979, together with the First through the Fifteenth Supplemental Lease
Agreements is herein referred to as the "Lease Agreement"; and
WHEREAS, Authority and Tenant have agreed to further amend and
supplement the Lease Agreement so as to modify Section 4 - Rental of the
Fifteenth Supplemental Lease
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Agreement and to lease to Tenant certain additional land under this Sixteenth
Supplemental Lease Agreement.
NOW THEREFORE, for and in consideration of the mutual promises,
covenants and agreements hereinafter contained to be kept and performed by the
parties hereto and upon the provisions and conditions hereinafter set forth,
Authority and Tenant do hereby covenant and agree, and each for itself does
hereby covenant and agree, as follows:
SECTION 1. DEFINITIONS. Except as otherwise provided herein, and unless
the context shall clearly require otherwise, all words and terms used in this
Sixteenth Supplemental Lease Agreement which are defined in the Lease Agreement,
shall, for all purposes of this Sixteenth Supplemental Lease Agreement, have the
respective meanings given to them in the Lease Agreement.
SECTION 2. MODIFICATION TO THE FIFTEENTH SUPPLEMENTAL LEASE AGREEMENT.
Section 4, Rental, of the Fifteenth Supplemental Lease Agreement dated as of
January 1, 1997 is hereby deleted in its entirety and the following substituted
therefor:
SECTION 4. RENTAL. In addition and supplemental to the rentals
required to be paid to the Authority pursuant to Section 5 of the Lease
Agreement (including all prior supplemental lease agreements), during
the term of this Fifteenth Supplemental Lease Agreement, Tenant as to
Parcel 21 shall pay to the Authority in advance on the first business
day of each month $11,877.03 in equal installments beginning January
1, 1997, a total rental payment of $142,524.40 per year, which the
parties hereto agree is based upon an aggregate of 833,476 square feet
of area at an annual rental rate of ($0.1710) per square foot.
SECTION 3. GRANTING OF LEASEHOLD. In addition to the lease and demise
to Tenant of the land in the Lease Agreement, the Authority hereby leases and
demises to Tenant, and Tenant hereby takes and hires from Authority, subject to
the provisions and conditions set forth in the Lease Agreement and this
Sixteenth Supplemental Lease Agreement, the additional land designated as new
Lease Parcel 22A which is located on the Memphis-Shelby County Airport Authority
property situated in Memphis, Shelby County, Tennessee, and being more
particularly described as follows:
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PARCEL 22A
(CONTRACTOR PARKING LOT)
BEING THE NORTHERN MOST PART OF PARCEL 22 OF THE MEMPHIS-SHELBY COUNTY
AIRPORT AUTHORITY (M.S.C.A.A.) PROPERTY SITUATED IN MEMPHIS, SHELBY
COUNTY, TENNESSEE AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
Beginning at a point in the northwest line of Tchulahoma Road (106'
R.O.W.) 43.61 feet south of the intersection of the south line of
Xxxxxx Xxxxxx Road (80' R.O.W.) and said northeast line; thence
northeastwardly along a curve to the right having a radius of 40.00
feet an arc distance of 66.28 feet (Chord: N 16(Degree)22'21" E - 58.95
feet) to a point of tangency in the south line of Xxxxxx Xxxxxx Road;
thence N 63(Degree)50'36" E along said south line a distance of 45.13
feet to a point of curvature; thence continuing along said south line
along a curve to the right having a radius of 960.00 feet an arc
distance of 477.04 feet (Chord: N 78(Degree)04'45" E - 472.15 feet) to
a point; thence along a curve to the right having a radius of 20.00
feet an arc distance of 32.13 feet (Chord: S 41(Degree)40'09" E - 28.78
feet) to a point of tangency in the west line of Xxxxx Drive (50'
R.O.W.); thence S 04(Degree)20'49" W along said west line a distance of
309.31 feet to a point; thence N 85(Degree)38'25" W a distance of
442.28 feet to a point in said northeast line of Tchulahoma Road;
thence N 31(Degree)05'54" W along said northeast line a distance of
142.84 feet to the point of beginning and containing 140,000 square
feet or 3.214 acres.
SECTION 4. TERM; DELIVERY AND ACCEPTANCE OF POSSESSION. The terms of
this Sixteenth Supplemental Lease Agreement shall commence at 12:01 A.M. on
April 1, 1997 for the land described as Parcel 22A and shall expire at such time
as the Lease Agreement shall expire, to-wit: August 31, 2012 or upon such
earlier termination, extension or otherwise as provided therein. Authority shall
deliver to Tenant sole and exclusive possession of that portion of the land,
leased hereby as of the date commencement of the term hereof, subject however,
to Authority's right-of-entry set forth in Section 21 of the Lease Agreement.
SECTION 5. RENTAL. In addition and supplemental to the rentals required
to be paid to the Authority pursuant to Section 5 of the Lease Agreement
(including all prior supplemental lease agreements), during the term of this
Sixteenth Supplemental Lease Agreement, Tenant as to Parcel 22A shall pay to the
Authority in advance on the first business day of each month $1,995.00 in equal
installments beginning September 1, 1997, a total rental payment of $23,940.00
per year, which the parties hereto agree is based upon an aggregate of 140,000
square feet of area at an annual rental rate of ($0.1710) per square foot.
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SECTION 6. HAZARDOUS SUBSTANCES/WASTE. Tenant, at its own expense, may
arrange for a Phase 1 Environmental Survey on the land described as Parcel 22A
by a reputable environmental consultant to determine the existence of Hazardous
Substances. In the event that Hazard Substances are uncovered during excavation
for construction on Parcel 22A, and such Hazardous Substances, as defined
herein, shall require special handling and disposal, then Authority shall grant
to Tenant a rent credit equal to the reasonable documented costs paid by Tenant
for the removal and disposal of Hazardous Substance(s) associated with Parcel
22A exclusively.
The term "Hazardous Substances", as used in this Sixteenth
Supplemental Lease Agreement, shall mean any hazardous or toxic substances,
materials or wastes, including, but not limited to, those substances, materials,
and wastes (i) listed in the United States Department of Transportation
Hazardous Materials Table (49 CFR ss. 172.101) or by the Environmental
Protection Agency as hazardous substances (40 CFR Part 302) and amendments
thereto, (ii) designated as a "Hazardous Substance" pursuant to Section 311 of
the Clean Water Act, 33 U.S.C. ss. 1251 et seq. (33 U.S.C. ss. 1321) or listed
pursuant to Section 307 of the Clean Water Act (33 U.S.C. ss. 1317, (iii)
defined as a "Hazardous Waste" pursuant to Section 1004 of the Resource
Conservation and Recovery Act, 42 U.S.C. ss. 6901, et seq. (42 U.S.C. ss. 6903),
or (iv) defined as "Hazardous Substance" pursuant to Section 101 of the
Comprehensive Environmental Response, Compensation and Liability Act, 42
X.X.X.xx. 9601, et seq. 42 U.S.C. ss. 9601) or any other substances, (including,
without limitation, asbestos and raw materials which include hazardous
constituents), the general, discharge or removal of which or the use of which is
restricted, prohibited or penalized by any "Environmental Law", which term shall
mean any Federal, State or local law, regulation, or ordinance relating to
pollution or protection of the environment.
SECTION 7. LEASE AGREEMENT STILL IN EFFECT; PROVISIONS THEREFORE
APPLICABLE TO THIS SUPPLEMENTAL LEASE AGREEMENT. All of the terms, provisions,
conditions, covenants and
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agreements of the Lease Agreement, as supplemented, shall continue in full force
and effect as supplemented hereby, and shall be applicable to each of the
provisions of this Sixteenth Supplemental Lease Agreement during the term hereof
with the same force and effect as though the provisions hereof were set forth in
the Lease Agreement.
SECTION 8. DESCRIPTIVE HEADINGS. The descriptive headings of the
sections of this Sixteenth Supplemental Lease Agreement are inserted for
convenience of reference only and do not constitute a part of this Sixteenth
Supplemental Lease Agreement and shall not affect the meaning, construction,
interpretation or effect of this Sixteenth Supplemental Lease Agreement.
SECTION 9. EFFECTIVENESS OF THIS SUPPLEMENTAL LEASE AGREEMENT. This
Sixteenth Supplemental Lease Agreement shall become effective at 12:01 a.m.
on April 1, 1997.
SECTION 10. EXECUTION OF COUNTERPARTS. This Sixteenth Supplemental
Lease Agreement may be simultaneously executed in several counterparts, each of
which shall be an original and all of which shall constitute but one and the
same instrument.
SECTION 11. SUMMARIES. For the convenience of both parties a Leased
Parcel Summary and a Rental Summary are attached to this Lease Agreement.
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IN WITNESS WHEREOF, THE MEMPHIS-SHELBY COUNTY AIRPORT AUTHORITY AND
FEDERAL EXPRESS CORPORATION have caused this Sixteenth Supplemental Lease
Agreement to be duly executed in their respective behalfs, as of the day and
year first above written.
WITNESS: MEMPHIS-SHELBY COUNTY AIRPORT
AUTHORITY
/s/ XXXXXXX X. XXXXX BY: /s/ XXXXX X. XXX
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Title: Director of Properties TITLE: President
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Approved as to Form and Legality:
/s/ X. XXXXXXX XXXXX, XX.
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X. Xxxxxxx Xxxxx, Xx., Attorney for Authority
WITNESS: FEDERAL EXPRESS CORPORATION
/s/ XXXXXX XXXXXXX BY: /s/ XXXXX XXXXXXX, XX.
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Title: Project Coordinator TITLE: Managing Director, Real
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Estate and Airport
Development
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(STATE OF TENNESSEE )
(COUNTY OF SHELBY )
On this 17 day of April, 1997, before me appeared XXXXX X. XXX, to me
personally known, who, being by me duly sworn (or affirmed), did say that he is
the President of the Memphis-Shelby County Airport Authority, the within named
Lessor, and that he as such President, being authorized so to do, executed the
foregoing instrument for the purposes therein contained, by signing the name of
the Authority by himself as such President.
MY COMMISSION EXPIRES
December 21, 1999 /s/ XXXXXX WACHINGT
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Notary Public
(seal)
STATE OF TENNESSEE )
COUNTY OF SHELBY )
On this 17 day of April, 1997, before me appeared Xxxxx Xxxxxxx, to me
personally known, who, being by me duly sworn (or affirmed), did say that he
is a Managing Director of Real Estate of Federal Express Corporation, the
within named Lessee, and that he as such Managing Director, being authorized so
to do, executed the foregoing instrument for the purposes therein contained, by
signing the name of the Corporation by himself as such Managing Director.
MY COMMISSION EXPIRES
December 7, 1998 /s/ XXXXXX X. XXXXXXX
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Notary Public
(seal)
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FEDERAL EXPRESS LEASED PARCELS SUMMARY
PARCEL EFFECTIVE
LEASE ACRES SQUARE FEET AGREEMENT DATE
----- ----- ----------- --------- ---------
BASE-LEASE
Revised 9 128.469 Consolidated & 08/01/79
Restated
10 1.612 70,200 Consolidated & 08/01/79
Restated
11 1.044 45,359 Consolidated & 08/01/79
Restated
PREVIOUS SUPPLEMENTS
12 2.707 117,915 First 04/01/81
Supplemental
13 6.860 298,830 Second 01/01/82
Supplemental
14 14.586 635,377 Fourth 07/01/83
Supplemental
15 12.689 552,723 Fourth 07/01/83
Supplemental
Rev 16 18.281 (19.685) 796,312 Fifth 02/01/84
Supplemental
Rev 17 119.616 (124.992) 5,210,477 Sixth 04/01/84
Supplemental
18 2.717 118,353 Sixth 04/01/84
Supplemental
19 41.606 1,812,352 Seventh 06/01/84
Supplemental
25 0.435 18,933 Eighth 07/01/88
Supplemental
20 11.275 491,127 Ninth 06/01/89
Supplemental
27 11.192 487,512 Tenth 10/01/91
Supplemental
27 A(West) 4.058 176,777 Eleventh 07/01/94
Supplemental
27 B(West) 5.706 248,533 Eleventh 07/01/94
Supplemental
Southwest
Ramp 2.350 102,366 Eleventh 07/01/94
Supplemental
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PARCEL EFFECTIVE
LEASE ACRES SQUARE FEET AGREEMENT DATE
----- ----- ----------- --------- ---------
32 (removed) 22.972 1,000,681 Twelfth 07/01/93
Supplemental
33 8.998 391,942 Thirteenth 06/01/95
Supplemental
36 3.050 132,837 Thirteenth 06/01/95
Supplemental
Hangar 8 (removed) 36,946,33 Thirteenth 06/01/95
Supplemental
34 9.951 433,461 Fourteenth 01/01/96
Supplemental
21 19.134 833,476 Fifteenth 01/01/97
Supplemental
THIS SUPPLEMENT
22A (NORTH) 3.214 140,000 SIXTEENTH 04/01/97
SUPPLEMENTAL
OPTIONS
22B (South) 3.310 144,200 Option, Expires 5/31/99
29 3.85 167,706 Option, Expires 9/30/2001
ASSIGNMENTS
23 5.923 258,008 Xxxxxx Assignment,
Expires 12/31/2000
Invoice FEC
Final Increase 1/1/96
24 9.964 434,030 Southwide Assignment
Expires 5/14/2013
Invoice FEC
Next Increase 5/15/98
26 9.532 415,213 BICO Assignment,
Expires 7/31/2021
Invoice FEC
Next Increase 8/01/2011
28 10.68 465,221 Equitable Life Assignment
Expires 5/14/2013
Invoice FEC
Next Increase 5/15/98
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RENTAL - FEDERAL EXPRESS
Effective September 1, 1997
Annual
Category Number of Rental Rate
of Space Square Feet Per Sq. Ft. Annual Rental
-------- ----------- ----------- -------------
Xxxx. X-000 1,240 1.221 $ 1,514.04
Unimproved Ground 5,452,282 0.098 534,323.64
Improved Apron 2,395,802 0.122 292,287.84
Hangar Property 72,092.67 0.903 65,099.68
Hangar Office 28,000 1.465 41,020.00
International Park 9,694,700 0.171 1,657,793.70
Former IRS Facility 2,255,137.24 1,200,000.00
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19,899,253.91 $3,792,038.90
BREAKDOWN OF SPACE
Sq. Ft. Sq. Ft.
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Xxxx. X-000 Xxxxxx 0 1,240
1,240
Unimproved Ground Parcel 1 130,900
Parcel 2 50,000
Parcel 3 192,400
Parcel 4 32,540
Parcel 6 89,700
Parcel 9 1,167,337
Parcel 19 1,812,362
Parcel 20 491,127
Parcel 27A 176,777
Parcel 27B 248,533
Southwest Ramp 102,366
Parcel 33 391,942
Parcel 36 132,837
Parcel 34 433,461
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5,452,282
Improved Apron Parcel 1 850,250
Parcel 2 226,900
Parcel 7 577,540
Parcel 9 253,600
Parcel 27 487,512
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2,395,802
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Sq. Ft. Sq. Ft.
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Hangar Property Parcel 1 44,336
Parcel 2 27,756.67
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72,092.67
Hangar Office Parcel 1 22,400
Parcel 2 5,600
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28,000
International Park Parcel 5 24,000
Parcel 8 247,254
Parcel 9 1,586,172
Parcel 10 70,200
Parcel 11 45,359
Parcel 12 117,915
Parcel 13 298,830
Parcel 14 556,334
Parcel 15 552,723
Parcel 16 796,312
Parcel 17 4,288,839
Parcel 18 118,353
Parcel 25 18,933
Parcel 21 833,476
Parcel 22A 140,000
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9,694,700
Former IRS Facility 2,255,137.24 2,255,137.24
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TOTAL: 19,899,253.91
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