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EXHIBIT 10.30
LEASE AND AGREEMENT
BY AND BETWEEN
RICHLAND-LEXINGTON AIRPORT DISTRICT,
LANDLORD
AND
AIR SOUTH, INC.,
TENANT
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RICHLAND-LEXINGTON AIRPORT DISTRICT, LANDLORD
AND
AIR SOUTH, INC.
LEASE AND AGREEMENT
INDEX
Page No.
Article I --------
PREMISES, RESTRICTIONS AND PRIVILEGES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 Demised Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 Restrictions on the Use of Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.3 General Privileges and Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.4 Definition of Public Airport Facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Article II
OBLIGATIONS OF LANDLORD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.1 Clear Title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.2 Operation as Public Airport . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.3 Condition and Maintenance of Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Article III
OBLIGATIONS OF TENANT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.1 Right and Obligation to Construct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.2 Submission of Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.3 Net Lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.4 Condition of Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.5 Maintenance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.6 Trash, Garbage, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.7 Signs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Article IV
LEASE, TERM, RENT AND FEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.1 Original Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.2 Renewal Option . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.3 Rental Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.4 Rental Escalation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.5 Charges for Late Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.6 Field Use Charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.7 Utilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.8 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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Article V
IMPROVEMENTS, ALTERATIONS, AND REPAIRS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.1 Requirements of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.2 Repairs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.3 Alterations and Removals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.4 Landlord's Right of Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Article VI
ENVIRONMENTAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
6.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
6.2 Landlord's Representations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
6.3 Tenant's Representations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
6.4 Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.5 Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.6 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Article VII
INDEMNIFICATION AND INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
7.1 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
7.2 Property Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.3 Liability Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
7.4 Worker's Compensation and Employer's Liability Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . 18
7.5 Certificates of Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Article VIII
TERMINATION OF AGREEMENT, CANCELLATION, ASSIGNMENT, AND SUSPENSION . . . . . . . . . . . . . . . . . . . . . . . . . 19
8.1 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
8.2 Cancellation by Landlord . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
8.3 Landlord Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
8.4 Cancellation by Tenant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
8.5 Assignment and Subletting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
8.6 Suspension of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
8.7 Relocation of Improvements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Article IX
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
9.1 Non-Disturbance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
9.2 Non-Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
9.3 Quiet Enjoyment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
9.4 Surrender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
9.5 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
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9.6 Compliance with Laws and Non-Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
9.7 Succesor and Assigns. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
9.8 Captions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
9.9 Integration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
9.10 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
9.11 Joint and Several Liability; Number and Gender. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
9.12 Recording . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Exhibit A - Description or Plan of the Property
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STATE OF SOUTH CAROLINA )
COUNTY OF LEXINGTON )
)
RICHLAND-LEXINGTON AIRPORT DISTRICT, )
LANDLORD, )
AND )
) LEASE AND AGREEMENT
AIR SOUTH, INC. )
TENANT. )
-------------------------------------------
THIS LEASE AND AGREEMENT (this "Agreement"), made on this 12th day of
December, 1995, but executed on January ___, 1996, between the Richland-
Lexington Airport District, a political subdivision of the State of South
Carolina (hereinafter referred to as "Landlord"), and Air South, Inc., an
Illinois corporation authorized to do business in South Carolina, (hereinafter
referred to as "Tenant").
WITNESSETH:
WHEREAS, Landlord owns and operates Columbia Metropolitan Airport
(hereinafter called "Airport") located in Lexington County, South Carolina;
and
WHEREAS, Tenant is signatory to the Airport Use and Lease Agreement
dated August 15, 1994 which authorizes Tenant to operate its air transportation
business at the Airport; and
WHEREAS, Landlord deems it advantageous to itself and to its operation
of the Airport to lease unto Tenant that certain parcel of land together with
any improvements
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thereon, being located at the Airport as shown on plat marked Exhibit "A"
attached hereto and by this reference made a part hereof;
NOW, THEREFORE, Landlord and Tenant, for and in consideration of the
rents, covenants and agreements herein contained, agree as follows:
ARTICLE I
PREMISES, RESTRICTIONS AND PRIVILEGES
1.1 Demised Premises. Landlord, for and in consideration of the covenants
and conditions hereinafter contained on the part of the Tenant to be performed,
and in consideration of the rental hereinafter reserved, does hereby grant,
lease, demise and let unto Tenant and Tenant does hereby rent and take from
Landlord certain real premises, together with improvements thereon (hereinafter
called "Property"), and certain attendant privileges, uses and rights, as
hereinafter specifically set out. The exclusive premises conveyed by this
Agreement shall be:
All that certain real property consisting of approximately
11.132 acres and containing two metal buildings of
approximately 21,850 sq. ft. and 1,500 sq. ft. respectively,
all being located at the Airport as shown and depicted on
plat marked Exhibit "A" attached hereto and by this
reference made a part hereof.
1.2 Restrictions on use of Property. Tenant by acceptance of this
Agreement for itself and its successors and assigns agrees that the Property
shall be used as aircraft hangar, maintenance, repair facility, and
administrative offices, and such other purposes as the Landlord may approve in
writing.
Tenant for itself, its successors and assigns does hereby agree that
it shall not in the future install, construct or erect, or cause to be
installed, constructed or erected any form
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of underground storage tanks for the storage of fuel, petroleum products or any
other product at the Property.
The Tenant additionally agrees to the following restrictions which are
hereby declared to be placed on the Property.
A. That the Landlord reserves unto itself, its successors and
assigns, for the use and benefit of the public, a right of
flight for the passage of aircraft in the airspace above the
surface of the Property, together with the right to cause in
said airspace such noise as may be inherent in the operation
of aircraft, which might be now known or hereafter invented,
used or designed for navigation of or flight in said airspace,
and for use of said airspace for landing on, taking off from
or operating at the Airport.
B. That Tenant expressly agrees for itself, its successors and
assigns that it will not make any use of the Property which
would interfere with the landing or taking off of aircraft at
the Airport nor will the Property be used in any fashion so as
to constitute an airport hazard.
1.3 General Privileges and Rights. Landlord grants to Tenant the right
and privilege to use, on a non-exclusive basis, the Public Airport Facilities,
as defined in Section 1.4, and improvements which are now or may hereafter be
connected with or appurtenant to the Airport. These general privileges and
rights are applicable only to Tenant's operations under this Agreement. Tenant
has other privileges and rights under the terms of other leases and agreements
and specifically under the Airport Lease and Use Agreement that Tenant executed
as an air carrier operating pursuant to 14 C.F.R., Part 121 and doing business
at the Airport.
1.4 Definition of Public Airport Facilities. Public Airport Facilities
shall include all necessary landing area appurtenances including but not
limited to approach areas, runways, taxiways, aprons, aircraft and automobile
parking areas, roadways, sidewalks, navigational
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aids, lighting facilities, terminal facilities or other public facilities
appurtenant to the Airport and available to Tenant in connection with the use
of the Property.
ARTICLE II
OBLIGATIONS OF LANDLORD
2.1 Clear Title. Landlord covenants and agrees that at and until the
granting and delivery of this Agreement it is well seized of the Property and
has good title thereto, free and clear of all liens and encumbrances having
priority over this Agreement; and that Landlord has the full right and
authority to lease the same as herein set forth except for such restrictions as
may have been imposed by the United States Government by reason of certain
Grant Agreements.
Landlord further covenants that all things have happened and been done
to make its granting of this Agreement effective and Landlord warrants to
Tenant peaceful possession and quiet enjoyment of the Property during the term
hereof, upon performance of Tenant's covenants herein.
2.2 Operating as Public Airport. Landlord covenants and agrees that
during the term hereof it will operate and maintain the Airport and its Public
Airport Facilities as a public airport consistent and pursuant to the Sponsor's
Assurances given by Landlord to the United States Government under the Federal
Airport Act, P.L. 91-258, as amended.
2.3 Condition and Maintenance of Property. Subject to the representations
and warranties contained in Sections 5.1B and 6.2 below, Landlord shall
maintain the demised premises, including the building and any and all
equipment, fixtures, and appurtenances, furnished by the Landlord under this
lease in good repair and tenantable condition, except
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in case of damage arising from the act or the negligence of the Tenant, its
agents, employees, or licensees. For the purpose of so maintaining said
premises and property, the Landlord may at reasonable times, and with the
approval of the Tenant, enter and inspect the same and make any necessary
repairs thereto.
ARTICLE III
OBLIGATIONS OF TENANT
3.1 Right and Obligation to Construct. Tenant shall have the right and the
responsibility to provide for the location, construction, erection, maintenance
and removal of all buildings and structures on, and improvements to the
Property for the purpose of carrying out Tenant's authorized operations.
3.2 Submission of Plans. Should Tenant wish to make improvements or
modifications on the site, all plans and specifications for the construction of
facilities and improvements (including landscaping) shall be prepared as
hereinafter set out and shall require the written approval of Landlord before
construction or installation may be undertaken. Tenant shall use its best
efforts to submit to Landlord final plans and specifications for any
improvements herein referred to in advance of Tenant's anticipated beginning
date of construction. Should plans not be in final form, it shall submit such
plans as are available and submit final plans within thirty (30) days of the
execution of any construction contract between Tenant and its contractor.
These plans shall include a plat plan, drawn to scale, showing the area to be
improved, including kind of pavement to be laid, building plans, the area to be
fenced, if any, and the kind of fencing to be used, and copies of landscaping
plans.
All improvements shall conform to Landlord's general requirements and
shall be
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architecturally consistent with existing Airport structures.
3.3 Net Lease. This lease in every sense shall be without cost to the
Landlord for the development, maintenance and improvement of the Property,
except as set forth in Section 2.3 above. It shall be the sole responsibility
of the Tenant to keep, maintain, repair and operate the entirety of the
Property and all improvements and facilities placed thereon, at Tenant's sole
cost and expense, except as set forth in Section 2.3 above.
3.4 Condition of Property. Subject to the representations and warranties
contained in Section 6.2 below, Tenant accepts the Property in its present
condition, and, without expense to Landlord, will remove or cause to be removed
any construction debris to the extent required for its use thereof.
3.5 Maintenance. Tenant shall, at its sole cost and expense, maintain the
Property and the buildings, improvements and appurtenances thereto, in a
presentable condition and at least equal in appearance and character to other
similar improvements at the Airport. Tenant shall repair all damages to the
Property caused by its agents, employees, licensees or its operation thereon;
shall maintain and repair all equipment thereon, including any drainage
installations, paving, curbs, islands, buildings and improvements; and shall
repaint its own buildings and structures as necessary; subject, however, to
Landlord's obligations as set forth in Section 2.3 above.
Landlord, in its discretion, shall be the sole judge of the quality of
maintenance. Upon written notice by Landlord to Tenant, Tenant shall be
required to perform whatever maintenance Landlord deems necessary. If said
maintenance is not undertaken by Tenant within thirty (30) days after receipt
of written notice, Landlord shall have the right to enter
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upon the Property and perform the necessary maintenance, the cost of which
shall be borne by Tenant.
3.6 Trash, Garbage, etc. Tenant shall provide a complete and proper
arrangement for the adequate sanitary handling and disposal, away from the
Airport, of all trash, garbage and other refuse caused by or as a result of the
operation of its business. Tenant shall provide and use suitable covered metal
receptacles for all such garbage, trash and other refuse. Piling of boxes,
cartons, barrels or other similar items, in any unsightly or unsafe manner, on
or about the demised premises, is forbidden.
3.7 Signs. Tenant shall not maintain or erect upon the outside of any
improvements on the Property any billboards or advertising signs without first
obtaining written approval of the Landlord.
ARTICLE IV
LEASE, TERM, RENT AND FEES
4.1 Original Term. This Agreement shall be effective from the date first
above set forth. The term of this Agreement shall commence on January 1, 1996,
(the "Commencement Date") and expire at midnight on fifth (5th) anniversary of
the Commencement Date.
4.2 Renewal Option. Tenant is hereby granted one (1) five-year option to
renew and extend the term of this Agreement, commencing upon the expiration of
the original term, upon the same terms and conditions set forth in this
Agreement for the Original Term, except for the rent which will be adjusted as
described in Section 4.4. Tenant may exercise the renewal option by written
notice to Landlord at least sixty (60) days before expiration of the original
term.
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4.3 Rental Fees. Tenant agrees to pay Landlord for the use of the
premises and facilities herein granted the sum of One Hundred Thirty Four
Thousand ($134,000.00) Dollars per annum, payable in equal monthly installments
in the amount of Eleven Thousand One Hundred Sixty Six and 67/00 ($11,166.67)
Dollars on the first (1st) day of each month in advance, with the first
installment due and payable on the Commencement Date, and with similar payments
on the first day of each and every calendar month thereafter and continuing for
the first five years of the Original Term. If the Commencement Date does not
coincide with the first day of a calendar month, the rental fees for that
calendar month shall be prorated for the number of days remaining in such a
calendar month.
4.4 Rental Escalation. For the period commencing with the option period,
January 1, 2001, through December 31, 2005, the rental fee shall be calculated
and adjusted based on the percentage increase in the Consumer Price Index
("CPI") for the base month of October, 1995 as compared with the base month of
October 2000 and the rent adjusted and paid on a monthly basis; provided,
however, that the annual rental fees for any given year shall not be less than
the annual rental fees paid during the immediately preceding year.
The percentage increase in the CPI as outlined above shall be
conclusively determined by the "Consumer Price Index: U.S. city average and
available local area data: all items; South urban, Size C - 50,000 to 450,000"
as published by the Bureau of Labor Statistics of the United States Department
of Labor or its successors. Should the CPI as now prepared be modified or
changed, the parties agree to be bound by its comparable successor.
Rental adjustments shall be paid retroactively in the event of a
delayed calculation
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for such rental adjustment. Such adjustment, in lump sum, shall be due on the
first (1st) day of the month following such adjustment.
4.5 Charges for Late Payment. Time is of the essence for the payment of
all rents, fees and charges hereunder. Should Tenant fail to make any payment
so that it is received by Landlord not later than permitted under this
Agreement, the sum shall be adjudged to be past due and a late charge of one
and one-half (1-1/2%) percent shall be due and payable. Thereafter, a late
charge of 1-1/2% per month shall continue to accrue until paid.
4.6 Field Use Charges. Nothing herein shall be deemed to relieve Tenant,
its agents, servants, employees, independent contractors, licensees, invitees
and others from rates and charges due and payable under the terms of other
leases and agreements and specifically under the Airport Lease and Use
Agreement that Tenant executed as an air carrier operating pursuant to 14
C.F.R., Part 121 doing business at the Airport.
4.7 Utilities. Tenant shall pay all charges for heat, gas, steam, water,
electricity and other utilities and services, including sprinkler and sewage
charges, used by Tenant in connection with the Property (the "Utilities").
Landlord and Tenant agree that such Utilities and storm sewer facilities are
adequate for Tenant's expected use.
4.8 Taxes. During the pendency of this Agreement, Tenant agrees that it
will pay any and all taxes of whatsoever kind or nature levied against the use
of the Property, and, should any present or subsequent legislation or
modification impose real estate taxes, "in lieu of" fees, or possessory interest
taxes on the Property or otherwise, Tenant agrees that it will pay such taxes.
Furthermore, Tenant agrees to pay all documentary stamp taxes applicable to
this Agreement pursuant to the prevailing statutory law and rules promulgated
thereto by
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the South Carolina Department of Revenue.
ARTICLE V
IMPROVEMENTS, ALTERATIONS AND REPAIRS
5.1 Requirements of Law.
A. Tenant shall, at Tenants expense, promptly comply with all
federal, state and local laws, statutes, ordinances, rules, codes, orders,
regulations and requirements (the "Law") applicable to facilities and
improvements constructed or erected by Tenant pursuant to this Agreement as
well as to Tenant's particular use of the Property.
B. Landlord represents and warrants that the Property is
presently in compliance with the Laws and that the Property shall be in
compliance with the Laws on the Commencement Date. Thereafter, Landlord shall,
at Landlord's expense, promptly comply with all Laws applicable to the physical
nature and character of the Property or otherwise applicable to the makeup of
the Property as opposed to Tenant's use thereof.
5.2 Repairs. Tenant, at Tenant's expense, shall assume the responsibility
for maintenance, upkeep and repair necessary to keep the Property and all
improvements and facilities placed thereon in a safe and serviceable
condition, except as set forth in Section 2.3, above.
5.3 Alterations and Removals. Tenant may make such alterations,
additions, and improvements to the Property as Tenant may in its discretion
deem necessary or appropriate for the conduct of Tenant's business therein.
Tenant shall first obtain Landlord's approval, which approval shall not be
unreasonably withheld, conditioned, or delayed. Such alterations, additions
and improvements shall become the property of Landlord after the term of this
Agreement and shall be surrendered with the Property as a part thereof.
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Provided, however, that at Landlord's option, Tenant shall be required to
remove all buildings, structures and improvements to the Property, including
all foundations, and any debris thereon and return the Property to Landlord in
a clean and clear condition. Notwithstanding the foregoing, Tenant may install
and shall have the right to remove from time to time and at the expiration or
earlier termination of this Agreement, Tenant's trade and business fixtures and
equipment. Tenant shall promptly repair any damage to the Property caused by
the removal of any of Tenant's property.
5.4 Landlord's Right of Access. Landlord, its agents and employees may
enter the Property during normal business hours to inspect the same to
ascertain whether Tenant is performing its obligations under this Agreement,
and at any time, as agreed upon with Tenant, to make required repairs,
alterations, improvements or additions. During such entries, Landlord may take
onto the Property all material required for the foregoing purposes without the
same constituting an eviction of Tenant in whole or in part provided that the
same does not unreasonably interfere with Tenant's operations.
Landlord or Landlord's agents may, only during the three (3) months
preceding expiration of this Agreement, during normal business hours, show the
Property to prospective tenants and place in one or more conspicuous places
upon the exterior of the Property, sale and rental notices in usual form,
provided they do not interfere with Tenant's use. Such entry for this purpose
must be upon at least twenty-four (24) hours notice to Tenant. Landlord's
entry onto the Property for this purpose shall not result in any inconvenience
or interference of Tenant's operations.
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ARTICLE VI
ENVIRONMENTAL PROVISIONS
6.1 Definition. The following definitions are for purposes of this
Article VI.
A. "Environmental Condition" means any condition that may exist or
have existed with respect to soil, surface or ground waters, stream sediments,
and every other environmental medium, which conditions could require
investigation and/or remediation or which could result in claims, demands,
orders or liabilities by or to third parties, including without limit
governmental entities.
B. "Hazardous Materials" means any chemical, compound,
constituent, material, waste, contaminant, or other substance as defined in or
regulated by any of the following sources as amended from time to time:
i. The Resource Conservation and Recovery Act of
1976 ("RCRA") 42 U.S.C. Section 6901 et seq.
as amended by the Solid Waste Disposal Act;
ii. The Comprehensive Environmental Response,
Compensation, and Liability Act of 1980
("CERCLA") 42 U.S.C. Section 9601 et seq. as
amended by the Superfund Amendments and
Reauthorization Act of 1986 ("XXXX");
iii. The Hazardous Materials Transportation Act,
49 U.S.C. Section 1801 et seq.;
iv. The Toxic Substances Control Act, 15 U.S.C.
Section 2601, et seq.;
v. The Clean Water Act, 33 U.S.C. Section 1251,
et seq.;
vi. The Clean Air Act, 42 U.S.C. Section 1857,
et seq.;
vii. The Emergency Planning and Community
Right-to-know Act, 42 U.S.C. Section 11001,
et seq.; and
viii. Any other environmental law.
C. "Petroleum" or "petroleum product(s)" means crude oil or any
fraction thereof,
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including, but not limited to, gasoline, diesel fuel, kerosene, aviation fuel,
and any combination, mixture, or constituents of any of the foregoing as
defined in or regulated by any of the following sources as amended from time to
time:
i. The State Underground Petroleum Environmental
Response Bank Act of 1988 ("SUPERB"), S.C.
Code Xxx. Section 44-2-10 et seq. (Law
Co-op. Supp. 1993);
ii. The South Carolina Pollution Control Act,
S.C. Code Xxx. Section 48-1-10 et seq. (Law
Co-op. 1987 and Supp. 1993);
iii. S.C. Code Xxx. Section 48-43-10 et seq. (Law
Co-op. 1987 and Supp. 1993) (Regulation of
Oil and Gas Exploration, Drilling,
Transportation, and Production); and
iv. Any other environmental law.
6.2 Landlord's Representations. Landlord represents and warrants to
Tenant as follows:
A. Landlord has at all times complied and shall at all times
during the term this Agreement comply with all applicable federal, state and
local environmental laws and regulations applicable to the Property and any
activities conducted thereon.
B. There is no pending or threatened private or governmental
claim, order or litigation, nor is there any pending or threatened judicial or
administrative action or order, pertaining to or affecting the Property.
C. Landlord has not caused or permitted, shall not cause or
permit, and Landlord has no knowledge of any Environmental Condition on the
Property.
D. Landlord has no knowledge of any Environmental Condition
concerning any real property adjacent to the Property that would adversely
affect the Property.
6.3 Tenant's Representations. Tenant shall not cause or
permit any Hazardous Material or Petroleum Product, including any solid,
liquid, vapor, soot, fumes, acids, alkalis, or waste
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including materials to be recycled, reconditioned, or reclaimed, to be brought
upon, kept, or used in or about the Property by Tenant, its agents, employees,
contractors, or up without the prior written consent of Landlord, which consent
Landlord shall not unreasonably withhold as long as Tenant demonstrates to
Landlord's reasonable satisfaction that such Hazardous Material or Petroleum
Product is necessary or useful to Tenant's business and will be used, kept, and
stored in a manner that complies with all laws, existing or as they may be
enacted in the future, regulating any such Hazardous Material or Petroleum
Product so brought upon or used or kept in or about the Property. This Section
6.3 shall not be construed to prohibit routine aircraft maintenance activities
performed in compliance with applicable state and federal guidelines.
If Tenant breaches the obligations stated in the preceding paragraph,
or if the presence of Hazardous Material or Petroleum Product on the Property
caused or permitted by Tenant results in contamination of the Property, or if
contamination of the Property by Hazardous Material or Petroleum Product
otherwise occurs, then Tenant shall indemnify, defend and hold Landlord
harmless from any and all claims, judgments, damages, penalties, fines, costs,
liabilities, or losses (including, without limitation, diminution in value of
the Property, damages for the loss or restriction on use of rentable or usable
space or of any amenity of the Property, damages arising from any adverse
impact on marketing of the Property, and sums paid in settlement of claims,
attorneys' fees, consultant fees and expert fees) which arise during or after
the term of this Agreement as a result of such contamination. This
indemnification of Landlord by Tenant includes, without limitation, costs
incurred in connection with any investigation of site conditions or any
clean-up,
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remedial, removal, or restoration work required by any federal, state, or local
government agency or political subdivision because of Hazardous Material or
Petroleum Product present in the air, soil or ground water on or under the
Property. Without limiting the foregoing, if the presence of any Hazardous
Material or Petroleum Product on the Property caused or permitted by Tenant
results in any contamination of the Property, Tenant shall promptly take all
actions at its sole expense as are necessary to return the Property to the
condition existing prior to the introduction of any such Hazardous Material or
Petroleum Product to the Property; provided that Landlord's approval of such
actions shall first be obtained, which approval shall not be unreasonably
withheld so long as such actions would not potentially have any material
adverse long-term or short-term effect on the Property.
6.4 Disclosure. At the commencement of this Agreement, and on January 1
of each year thereafter (each such date being hereafter called "Disclosure
Dates"), including January 1 of the year after the termination of this
Agreement, Tenant shall disclose to Landlord the names and amounts of all
Hazardous Materials or Petroleum Products, or any mixture or combination
thereof, which were brought upon, kept or used on the Property, or which Tenant
intends to bring upon, keep or use on the Property, other than such products
excluded by the provisions of Section 6.3 above.
6.5 Inspection. Landlord and its agents shall have the right, but not the
duty, to inspect the Property at any time to determine whether Tenant is
complying with the terms of this Agreement. If Tenant is not in compliance
with this Agreement, Landlord shall have the right to immediately enter upon
the Property to remedy any contamination or Environmental Condition caused by
Tenants failure to comply, notwithstanding any other
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provision of this Agreement. Landlord shall use its best efforts to minimize
interference with Tenant's business but shall not be liable for any
interference caused thereby.
6.6 Survival. Notwithstanding any provision in this Agreement to the
contrary, the representations and warranties made and the indemnity
obligations provided for in this Article VI shall survive the expiration or
termination of this Agreement.
ARTICLE VII
INDEMNIFICATION AND INSURANCE
7.1 Indemnification. Tenant shall protect, defend and hold Landlord
completely harmless from and against any and all liabilities, losses, suits,
claims, judgments, fines, or demands arising by reason of injury or death of
any person or damage to any property, (including but not limited to attorney
fees, court costs, and expert fees), of any nature whatsoever arising out of or
incidental to this Agreement and the use or occupancy of the Premises or the
acts or omissions of Tenant's directors, officers, agents, employees,
contractors, subcontractors, or licensees. Landlord shall give Tenant
reasonable notice of any claims or actions made against Landlord which may
result in a judgment for damage, penalty, time, cost, liability claim of loss
against Landlord because of such injury or damage and deliver to Tenant all
papers, notices, documents, summonses and other legal process served on
Landlord or its agents; provided, that Tenant and its insurer or either of them
shall have the right to compromise and defend all claims, actions, suits and
proceedings to the extent of Tenant's interest therein and in connection
therewith and that the parties agree to faithfully cooperate with each other
and with Tenant's insurer in the defense thereof.
It is expressly understood and agreed that Tenant is and shall be
deemed to be an
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independent contractor and operator responsible to all parties for its acts
and omissions. It is further agreed that in the use of the Airport, in the
erection or construction of any improvements thereon, and in the exercise or
enjoyment of the privileges herein granted, Tenant shall indemnify and save
harmless the Landlord from any and all losses that may proximately result to
the Landlord because of any negligence on the part of Tenant. The provisions
of this section shall survive the expiration or early termination of this
Agreement for a period of twenty (20) years, except for environmental matters
or matters for which there is no statute of limitations.
7.2 Property Insurance. During all terms of this Agreement, Tenant shall,
at Tenant's expense, provide and maintain, insurance on all buildings,
structures and leasehold improvements constructed or erected on the Property
against the perils covered by a standard fire insurance policy with extended
coverage, vandalism and malicious mischief, and sprinkler leakage
endorsements. Such insurance shall be maintained on a basis of not less than
one hundred percent (100%) of actual replacement value of all buildings,
structures and improvements located on the Property and sufficient to meet
co-insurance requirements. Tenant shall have the right to obtain a policy
containing a deductible provision. Tenant shall name Landlord as an
additional insured on such policy.
The proceeds of any such insurance, paid on account of casualties
covered under said policy, shall be used to defray the cost of repairing,
restoring or reconstructing said buildings, structures and leasehold
improvements, as necessary. If all or any portion of buildings, structures or
leasehold improvements constructed or erected on the Property are partially or
wholly destroyed by fire or other casualty, rental fees with respect to the
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Property shall be proportionately abated from the date of such damage or
destruction until such time as Tenant, at its own expense and cost, exercising
due diligence, shall put such buildings, structures or leasehold improvements
in useable order; provided, however, rental fees shall not be abated for a
period longer than one hundred eighty (180) days.
7.3 Liability Insurance.
Tenant shall at all times during the term of this Agreement
carry commercial general liability insurance covering Tenants operations on the
Property, and its officers, employees, servants, agents, up, and licensees;
insuring against liability for personal injury, bodily injury, including death
in a minimum sum of Five Million ($5,000,000) Dollars per person and a maximum
of Twenty-Five Million ($25,000,000) Dollars for any one accident or
occurrence; and property damage for Five Million ($5,000,000) Dollars for any
one accident or occurrence. Landlord shall be named as an additional insured
on all insurance coverage.
7.4 Worker's Compensation and Employer's Liability Insurance. Tenant
shall, at its sole cost and expense, obtain Worker's Compensation and
Employer's Liability insurance with South Carolina statutory limits.
7.5 Certificates of Insurance. Tenant shall provide the Landlord with a
certificate of insurance evidencing the insurance required to be maintained by
Tenant upon the execution of this Agreement, and upon the reasonable request
from the Landlord from time to time, a certificate of insurance evidencing that
such insurance is in full force and effect.
Tenant shall maintain said insurance required under this Article VII
with insurance underwriters authorized to do business in the State of South
Carolina reasonably satisfactory to Landlord. Said policies or certificates
shall contain a provision that written notice of
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cancellation or of any material change in said policy by the insurer shall be
delivered to Landlord ten (10) days in advance of the effective date thereof.
ARTICLE VIII
TERMINATION OF AGREEMENT,
CANCELLATION, ASSIGNMENT, AND SUSPENSION
8.1 Termination. This Agreement shall terminate at the expiration of the
full term hereof, and Tenant shall have no further right or interest in any of
the lands or improvements hereby demised, except as provided in Section 6.7
hereof.
8.2 Cancellation by Landlord. Landlord shall have the right, upon
notice to Tenant, to cancel this Agreement in its entirety, upon or after the
happening of one or more of the following events, if said event or events shall
be then continuing:
A. The permanent abandonment of the Airport as an air terminal.
B. The lawful assumption by the United States government, or any
authorized agency thereof, of the operation, control, or use
of the Airport, or any substantial part or parts thereof in
such manner as to substantially restrict Tenant from operating
at the Property for a period of at least ninety (90) days;
provided, however, Tenant shall not be obligated to make
rental payments after the effective date of such assumption.
C. The default by Tenant in the performance of any covenant or
agreement herein required (other than payment of rent) to be
performed by Tenant and failure of Tenant to remedy such
default for a period of thirty (30) days after receipt from
Landlord of notice to remedy same.
D. Tenant fails to pay when due any rental fee or other payment
to be made by Tenant hereunder and does not cure such failure
within thirty (30) days after Landlord's Executive Director,
or his successor, gives Tenant notice thereof.
E. Tenant violates or breaches or fails to fully and completely
observe, keep, satisfy, perform and comply with, any
agreement, term, covenant, condition, requirement,
restriction, or provision of this Agreement (other than
payment of rent, additional rent, or any other payment to be
made by Tenant) and
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does not cure such failure within thirty (30) days after
Landlord gives Tenant notice thereof or, if such failure shall
be incapable of cure within thirty (30) days, Tenant does not
commence to cure such failure within the thirty (30) day
period and continuously prosecute the performance of same to
completion with due diligence.
F. Tenant becomes insolvent as defined in the Uniform Commercial
Code in effect in the State of South Carolina, or makes an
assignment for the benefit of creditors; or any action is
brought by Tenant seeking its dissolution or the liquidation
of its assets or seeking an appointment of a trustee, interim
trustee, receiver or other custodian for any of its property;
or Tenant commences a voluntary proceeding under the Federal
Bankruptcy Code; or any reorganization or arrangement
proceeding is instituted by Tenant for the settlement,
readjustment, composition, or extension of any of its debts
upon any terms; or any action or petition is otherwise brought
by Tenant seeking similar relief or alleging that it is
insolvent or unable to pay its debt as they mature; or if any
action is brought against the Tenant seeking its dissolution
or liquidation of any of its assets, or seeking the
appointment of a trustee, interim trustee, receiver, or other
custodian for any of its property and any such action as
consented to or acquiesced in by the Tenant or is not
dismissed within thirty (30) days after the date upon which it
was instituted; or any proceeding under the Federal Bankruptcy
Code is instituted against Tenant and either an order for
relief is entered in such proceeding or such proceeding is
consented to or acquiesced in by Tenant or is not dismissed
within thirty (30) days after the day upon which it was
instituted; or any reorganization or arrangement proceeding is
instituted against Tenant for the settlement, readjustment,
composition or extension of any of its debts upon terms, and
such proceeding is consented to or acquiesced in by Tenant or
is not dismissed within thirty (30) days after the date upon
which it was instituted; or any action or petition is
otherwise brought against Tenant seeking similar relief
alleging that it is insolvent, unable to pay its debts as they
mature, or generally not paying its debts as they become due,
and such action or petition is consented to or acquiesced in
by Tenant or is not dismissed within thirty (30) days after
the date upon which it was brought, the Tenant shall be in
default under this Agreement.
G. Tenant abandons the premises leased to it hereunder for a
continuous period of sixty (60) days at any one time, except
when such abandonment is caused by fire, earthquake, war,
strike, or other calamity beyond Tenant's control.
H. Tenant is divested of, or is prevented by any final action of
any Federal or State authority from conducting and operating
the transportation of persons using its fleet of aircraft.
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In the event of any cancellation or termination of this Agreement by
Landlord under circumstances specified in this Article VIII, all fixed
improvements erected or installed in or upon the demised premises by Tenant
shall become the absolute property of Landlord.
8.3 Landlord Remedies. If Tenant is in default under this Agreement,
Landlord may pursue any one or more of the following remedies, without any
notice (except as specifically provided below) or demand whatsoever and
without prejudice to any other remedy which it may have for possession of
the premises, for arrearage in rent, or other amounts payable by Tenant.
A. Landlord may terminate this Agreement by giving Tenant sixty
(60) days notice of termination in which event Tenant shall
quit and vacate the premises and deliver and surrender
possession of the premises to Landlord and this Agreement
shall be terminated at the time designated by Landlord in its
notice of termination to Tenant.
B. With or without terminating this Agreement, Landlord may enter
upon and take possession of the premises and expel or remove
Tenant and any other person who may be occupying the premises,
without being liable for prosecution or any claim for damages.
C. Landlord may re-lease the premises or any part thereof and
receive a rental fee for any such re-leasing, in which event
Tenant shall pay to Landlord on demand any deficiency that may
arise by reason of such re-leasing.
D. Landlord may collect and xxx Tenant from time-to-time for the
amount of any rent, additional rent, late charges, or other
amounts then owing by Tenant to Landlord; and exercise all
other remedies provided by law, including distraint.
E. With or without terminating this Agreement, Landlord may bring
an action against Tenant to recover from Tenant all damages
suffered, incurred, or sustained by Landlord (including
without limitation court costs, reasonable attorneys' fees,
and expert fees actually incurred) as a result of, by reason
of, or in connection with such default, or to obtain specific
performance of Tenant's obligations under this Agreement.
F. Landlord may do whatever Tenant is obligated to do under the
terms of this Agreement, in which event Tenant shall reimburse
Landlord on demand for
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any expenses, including, without limitation, court costs,
reasonable attorneys' fees, and expert fees which Landlord
may incur, thus effecting satisfaction and performance of, or
compliance with Tenant's duties and obligations under this
Agreement. No action taken by or on behalf of Landlord shall
be construed to be an acceptance of surrender of this
Agreement. No termination of this Agreement shall affect
Landlord's right to collect rent or other amounts due for the
period prior to the termination.
8.4 Cancellation by Tenant. Tenant may cancel this Agreement in its
entirety by giving Landlord sixty (60) days notice of same upon or after the
breach by Landlord of any of the covenants or agreements herein contained and
the failure of Landlord to remedy such breach for a period of thirty (30) days
after receipt of a notice of the existence of such breach; provided, however,
that if the breach cannot reasonably be remedied within the thirty-day
period, this Agreement shall not be canceled if Landlord commences to cure
the breach within the thirty-day period and diligently and in good faith
continues to cure the breach. Additionally, Tenant may cancel this Agreement
under the provisions provided in Section 8.2 (B) above.
8.5 Assignment and Subletting. Tenant shall not at any time sublet,
assign, transfer, convey, mortgage, pledge or encumber its interest under this
Agreement, or any part of the Property, to any party, without prior written
consent of Landlord, which consent shall not be unreasonably withheld or
delayed. Tenant shall have the right to sub-lease portions of its buildings
provided that such sub-leasing shall be with the prior written consent of
Landlord, which consent shall not be unreasonably withheld or delayed.
All such assignments, transfers or sub-leases shall be to financially
responsible parties and shall provide that the uses to which the Property is
put shall remain unchanged. Tenant shall have the right to make assignments of
this Agreement to any lender, provided that such assignment shall be with the
prior written consent of Landlord, which consent shall not
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be unreasonably withheld or delayed.
8.6 Suspension of Agreement. During the time of war or national
emergency, Landlord shall have the right to lease the landing area or any part
thereof to the United States Government for military use. If any such lease is
executed, any provisions of this instrument which are inconsistent with the
provisions of the lease to the United States Government shall be suspended.
Additionally, and at the option of Tenant, this Agreement may be canceled or
extended by the amount of time in the period of such suspension.
8.7 Relocation of Improvements. In the event Landlord requires the
demised premises for expansion or development of the Airport, Landlord reserves
the right, on six (6) months' notice, to relocate or replace Tenant's
improvements at Landlord's cost and expense in substantially similar form at
another generally comparable location on said Airport.
ARTICLE IX
MISCELLANEOUS
9.1 Non-Disturbance. Landlord represents and warrants that there are no
ground leases, mortgages, or other encumbrances affecting the Property or
Tenants proposed use thereof except land use guidelines and Federal Aviation
Administration grant assurance restrictions.
9.2 Non-Waiver. The failure of either party to insist upon strict
compliance with any of the covenants or conditions of this Agreement or to
exercise any right hereunder in any one or more instances shall not be
construed as a waiver for the future of any such covenant, condition or right.
9.3 Quiet Enjoyment. Landlord covenants that on paying the rental fee and
performing the covenants to be performed by Tenant, Tenant shall peaceably and
quietly have, hold and enjoy the Property for the Term of this Agreement,
including any renewal or extension
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periods.
9.4 Surrender. Except as provided in Section 5.4 hereof, Tenant shall
surrender the Property at the expiration or earlier termination of this
Agreement in broom clean condition and good order and repair, except that
Tenant shall not be responsible for conditions resulting from ordinary wear and
tear or any condition which is not an obligation of Tenant to remediate or
repair under the terms of this Agreement.
9.5 Notices. All notices and demands of any kind (a "Notice") which either
party may be required or may desire to give the other party pursuant to this
Agreement shall be in writing and shall be served by personal delivery,
registered or certified mail return receipt requested and postage prepaid or by
overnight delivery service which obtains a receipt for delivery. Either party
may change the address or person to which Notices to it are to be given by
notice to the other party as provided herein.
9.6 Compliance with Laws and Non-Discrimination.
A. All provisions of this Agreement shall be subordinate to the
rights of the United States of America to operate the National Aviation System
or any part thereof during time of war or national emergency. Such rights
supersede any provisions of this Agreement inconsistent with the operations of
the National Aviation System of the United States; provided, however, Tenant
shall have the right to terminate this Agreement if its use is not allowed or
is substantially impaired.
B. Tenant for itself, its personal representatives, successors in
interest, and assigns, as a part of the consideration hereof, does hereby agree
that (i) no person shall be excluded from participation in, denied the benefits
of, or otherwise discriminated in the use
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of the Property on the grounds of race, color, national origin or sex; (ii) no
person shall be excluded from participation in, denied the benefits of, or
otherwise discriminated in the construction of any improvements on, over, or
under the Property and the furnishing of services thereon on the grounds of
race, color, national origin or sex; and (iii) Tenant shall use the Premises
in compliance with all other requirements imposed by or pursuant to 49 CFR,
Subtitle A, Part 21, Nondiscrimination in Federally Assisted Programs of the
Department of Transportation, and as said Title and Regulations may be amended.
C. Tenant acknowledges that the provisions of 49 CFR, Part 23,
Disadvantaged Business Enterprises ("DBE"), as said regulations may be amended,
and such other similar regulations as may be enacted, may be applicable to the
activities of Tenant under the terms of this Agreement, unless exempted by said
regulations, and hereby agrees to comply with the Federal Aviation
Administration and the United States Department of Transportation laws and
Regulations, in reference thereto. These requirements may include, but not be
limited to, compliance with DBE participation goals, the keeping of certain
records of good faith compliance efforts, which would be subject to review by
the various agencies, the submission of various reports and, if so directed,
the contracting of specified percentages of goods and services contracts to
Minority Business Enterprises.
D. In the event of breach of any of the above nondiscrimination
covenants, Landlord shall have the right to cancel this Agreement after such
action as the United States Government may direct to enforce this covenant has
been followed and completed, including exercise or expiration of appeal rights.
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9.7 Successors and Assigns. All of the provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective executors, administrators, heirs, successors and assigns.
9.8 Captions. The headings and captions used in this Agreement are for
convenience of reference only and shall not affect the meaning of this
Agreement in any way.
9.9 Integration. This Agreement constitutes the entire understanding
between the parties hereto and the parties shall not be bound by any prior or
contemporaneous agreements, understandings or conditions respecting the subject
matter hereof other than those expressly set forth and stipulated in this
Agreement. This Agreement may be amended only by writing signed by Landlord
and Tenant. Except as provided in Section 6.7 hereof, no provision of this
Agreement shall survive the expiration or earlier termination of this
Agreement.
9.10 Governing Law. This Agreement shall be governed by, construed and
enforced in accordance with the laws of the State of South Carolina.
9.11 Joint and Several Liability Number and Gender. If any of the parties
to this Agreement consist of more than one person or entity, each such person
and entity shall be jointly and severally liable for the performance of this
Agreement. For purposes of this Agreement the neuter shall include the
masculine and the feminine, and the singular shall include the plural and the
plural the singular, as the context may require.
9.12 Recording. The parties hereto agree to execute a memorandum for
recording purposes in lieu of recording the entire Agreement should recording
be desirable.
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IN WITNESS WHEREOF, the parties hereto intending to be legally bound,
hereby, have caused this Agreement to be duly executed as of the day and year
first above written.
TENANT:
WITNESS AS TO TENANT AIR SOUTH, INC.
(CORPORATE SEAL)
BY:
------------------------------ --------------------------------
Its:
------------------------------ --------------------------------
Address for Notice:
Air South, Inc.
Attn: President
0000 Xx. Xxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000
Copy to:
Xxxxx X. Xxxxxxxx, Esquire
Attorney at Law
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
LANDLORD:
WITNESS AS TO LANDLORD: RICHLAND-LEXINGTON AIRPORT DISTRICT
(SEAL)
BY:
----------------------------- -----------------------------------
H. Xxx Xxx, Chairman
BY:
----------------------------- -----------------------------------
Xxxxxx X. Xxxxxx, AAE, Executive Director
Address for Notice:
Executive Director,
Columbia Metropolitan Airport
0000 Xxxxxxxx Xxx
Xxxx Xxxxxxxx, XX 00000
Mailing address:
X.X. Xxx 000000
Xxxxxxxx, XX 00000-0000
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EXHIBIT X
[XXXX XXX]
00
XXXXX XX XXXXX XXXXXXXX )
COUNTY OF LEXINGTON )
RICHLAND-LEXINGTON AIRPORT DISTRICT, )
LANDLORD, )
AND ) ADDENDUM No. 1 TO
) LEASE AND AGREEMENT
AIR SOUTH, INC. )
)
TENANT. )
THIS ADDENDUM No. 1 is made on this 12th day of December, 1995, but
executed on January 5, 1996, between the Richland-Lexington Airport
District, a political subdivision of the State of South Carolina (the
"Landlord"), and Air South, Inc., an Illinois corporation, (the "Tenant").
WITNESSETH:
WHEREAS, Landlord owns and operates Columbia Metropolitan Airport (the
"Airport") located in Lexington County, South Carolina; and
WHEREAS, contemporaneously with this Xxxxxxxx Xx. 0, Xxxxxxxx and
Tenant have entered into a Lease and Agreement for certain real property as
described therein (the "Property"); and
WHEREAS, the Property is subject to a Lease For Real Property No.
DACA21-5-90-1047 between the District and the United States of America (the
"Government Lease") which expires and terminates all leasehold interests on
December 31, 1995; and
WHEREAS, Landlord believes that commencing on January 1, 1996, it has
the legal
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right to be well seized of the Property and has good title thereto, free and
clear of all liens, encumbrances and prior leases, including the Government
Lease, and it has the full right and authority to lease the Property subject to
certain restrictions which might have been imposed by the United States
Government by reason of certain Grant Agreements unrelated to the Government
Lease; and
WHEREAS, Landlord believes that it may have actual or implied notice
that the United States Government will not vacate the Property at the
expiration of the Government Lease on December 31, 1995.
NOW, THEREFORE, Landlord and Tenant, for and in consideration of the
mutual covenants and promises herein contained, and notwithstanding any
agreements to the contrary contained in the Lease and Agreement, agree as
follows:
1. Landlord shall warrant and defend Tenant against any condemnation
action initiated by the United States Government with respect to the Lease and
Agreement entered between Landlord and Tenant regarding the Property.
2. In the event that the United States Government does not vacate the
Property at the expiration and termination of the Government Lease, Landlord
shall initiate eviction proceedings in a court of competent jurisdiction, and
shall proceed in good faith and without unreasonable delay to remove any
hold-over tenant from the Property.
3. In the event that the United States Government prevails in
condemnation proceedings against the Lease and Agreement, or in the event that
Landlord does not prevail in eviction proceedings or is otherwise unable to
terminate and remove any holdover tenant from the Property within ninety (90)
days from the commencement of such hold-
2
35
over tenancy, Tenant may cancel the Lease and Agreement without prejudice.
4. No rent shall be due and payable until possession of the property is
delivered to the Tenant; provided, however, beginning January 31, 1996, Tenant
may, upon thirty (30) days notice, cancel the Lease and Agreement without
prejudice.
5. This Addendum No. 1 to the Lease and Agreement shall become effective
upon its execution and shall expire and all of its provisions terminate on the
30th of June, 1996.
IN WITNESS WHEREOF, the parties hereto intending to be legally bound,
hereby, have caused this Addendum No. 1 to the Lease and Agreement to be duly
executed as of the day and year first above written.
TENANT:
WITNESS AS TO TENANT AIR SOUTH, INC.
(CORPORATE SEAL)
BY:
------------------------- --------------------------------
Its:
------------------------- -------------------------------
LANDLORD:
WITNESS AS TO LANDLORD: RICHLAND-LEXINGTON AIRPORT DISTRICT
(SEAL)
BY:
------------------------- ----------------------------------
H. Xxx Xxx, Chairman
BY:
------------------------- ----------------------------------
Xxxxxx X. Xxxxxx, AAE, Executive Director
3
