EXHIBIT 10.17
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE
CONFIDENTIAL PORTIONS HAVE BEEN REDACTED AND ARE DENOTED BY {***}. THE
CONFIDENTIAL PORTIONS HAVE BEEN SEPARATELY FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION.
CONFIDENTIAL
AGREEMENT OF SUBLEASE
Between
AMERICAN AIRLINES, INC. And
MIDWAY AIRLINES CORPORATION
TABLE OF CONTENTS
Section Page
------- ----
1. Premises ........................................................... 1
A. Initial Premises ............................................. 1
B. Phase 2 Premises ............................................. 1
C. Fixtures, Personal Property, Terminal C Systems and Services . 2
D. Additional Premises .......................................... 3
E. No Conflict .................................................. 4
2. Term ............................................................... 4
3. Base Lease Incorporated ........................................... 4
A. Sublease Subordinate ......................................... 4
B. Base Lease In Effect ......................................... 4
C. Base Lease Amendment ......................................... 5
4. Use ................................................................ 5
5. Rent and Related Matters ........................................... 5
A. Rent ......................................................... 5
B. Default Interest ............................................. 6
C. Late Payment ................................................. 6
D. Concessions .................................................. 7
E. Most Favored Nations Clause .................................. 7
F. Third Party Vendors .......................................... 7
6. Utilities and Services; Parking .................................... 7
7. Acceptance of Premises ............................................. 8
8. Repairs and Maintenance ............................................ 8
9. Taxes .............................................................. 9
10. Alterations ........................................................ 9
11. Right of Entry ..................................................... 9
12. Compliance with Law ................................................ 9
13. Casualty ........................................................... 9
14. Release and Indemnity .............................................. 10
B. Sublessee Indemnity .......................................... 10
C. American Indemnity ........................................... 11
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D. Excluded Damages ............................................. 11
15. Insurance .......................................................... 11
A. Coverage ..................................................... 11
B. Form and Certificates ........................................ 12
C. Waiver of Subrogation ........................................ 12
16. Liens .............................................................. 12
17. Condemnation ....................................................... 12
A. Total Taking ................................................. 12
B. Partial Taking ............................................... 12
C. Awards ....................................................... 13
18. Default and Remedies ............................................... 13
A. Event of Default by Sublessee ................................ 13
B. Remedies of American ......................................... 14
C. Acceptance of Surrender ...................................... 14
D. Accelerated Rent ............................................. 14
E. Other Costs .................................................. 15
F. Reletting Demised Premises ................................... 15
G. Remedial Costs ............................................... 15
H. Sublessee Unique ............................................. 15
19. American's Lien .................................................... 16
20. Cumulative Rights .................................................. 16
21. Surrender of Premises/Holding Over ................................. 16
22. Assignment and Sublease ............................................ 16
23. Accord and Satisfaction ............................................ 17
24. Force Majeure ...................................................... 17
25. Attorneys' Fees .................................................... 17
26. GOVERNING LAW ...................................................... 17
27. Entire Agreement/Amendment ......................................... 18
28. Waiver ............................................................. 18
29. Severability ....................................................... 18
30. Approval by Landlord ............................................... 18
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31. Notices ............................................................ 18
32. Quiet Enjoyment .................................................... 19
33. Binding Effect ..................................................... 19
34. Other Space ........................................................ 19
35. Financial and Statistical Reports .................................. 20
36. Offset ............................................................. 20
37. Competition ........................................................ 20
38. American's Annual Report ........................................... 20
39. Construction ....................................................... 20
EXHIBIT A ................................................................. A-1
EXHIBIT B ................................................................. B-1
EXHIBIT C ................................................................. C-1
SCHEDULE I to EXHIBIT C ................................................... 1
EXHIBIT D ................................................................. D-1
EXHIBIT E ................................................................. E-1
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This Agreement of Sublease (this "Sublease"), dated as of the 18th day of
January, 1995 ("Execution Date"), is entered into by and between American
Airlines, Inc., a Delaware corporation ("American"), and Midway Airlines
Corporation, a Delaware corporation (the "Sublessee");
WITNESSETH
WHEREAS, pursuant to that certain Raleigh-Durham Airport Facilities Lease
and Use Agreement dated as of November 1, 1985 between the Raleigh-Durham
Airport Authority, a municipal corporation of the State of North Carolina
("Landlord") and American (together with all amendments, the "Base Lease")
American leases from Landlord certain premises (the "Base Lease Premises") at
Raleigh-Durham Airport ("RDU"); and
WHEREAS, American also leases from Landlord the improvements located on
the real property described in the Base Lease, which improvements are commonly
referred to as Terminal C (the "Improvements"); and
WHEREAS, American desires to sublease to Sublessee, and Sublessee desires
to sublease from American, a portion of each of the Base Lease Premises and the
Improvements as more fully described herein, on the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the mutual promises, agreements,
covenants, conditions and provisions contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, American and Sublessee hereby agree as follows:
1. Premises.
A. Initial Premises. American hereby subleases to Sublessee, and
Sublessee hereby subleases and takes from American space in the Base Lease
Premises and the Improvements, such space and Improvements being
specifically described and generally depicted on Exhibit A attached hereto
(such space and Improvements being referred to collectively herein as the
"Initial Premises"). The square footage set forth on Exhibit A is
approximate. The actual amount of square footage in the Initial Premises
shall be as stated in a survey to be prepared by a qualified surveyor, at
American's sole cost and expense, within 60 days after the Execution Date.
The parties agree to sign a revised Exhibit A after delivery of the survey
in order to evidence the parties' agreement as to square footage of the
Initial Premises. American shall deliver possession of the Initial
Premises free and clear of all tenancies and occupancies to Sublessee on
the Commencement Date.
B. Phase 2 Premises. Upon written notice from Sublessee to American,
but in any event not later than June 15, 1995 ("Phase 2 Premises
Commencement Date"), Sublessee shall sublease and take from American, and
American shall sublease to Sublessee, a total of not less than five (5)
additional gates and six (6)
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additional ticket counter positions, both gates and ticket counter
positions to be contiguous to the Initial Premises, together with (i)
operations and offices space in accordance with the rules and agreements
on Exhibit D attached hereto, (ii) such baggage make-up space as shall be
mutually agreed by the parties based upon both parties' operational needs
at the time in question, and (iii) the Fixtures (hereinafter defined) and
Miscellaneous Personal Property (hereinafter defined) associated with such
space, such sublease to commence on the Phase 2 Premises Commencement Date
but otherwise on the terms and conditions set forth in this Sublease. Such
space is herein referred to as the "Phase 2 Premises". Sublessee and
American will execute an amendment to this Sublease effective as of the
Phase 2 Premises Commencement Date which will amend and restate the
original Exhibit A to this Sublease such that the Initial Premises and the
Phase 2 Premises are described therein. If there shall have occurred and
be continuing on the Phase 2 Premises Commencement Date an Event of
Default by Sublessee under this Sublease, American may, at its option,
refuse to sublease to Sublessee the Phase 2 Premises, until and unless the
breach giving rise to such Event of Default has been timely cured in
accordance with this Sublease.
C. Fixtures, Personal Property, Terminal C Systems and Services. The
passenger loading bridge connected to, and the aircraft parking apron and
apron connecting taxiways contiguous to, each gate subleased by Sublessee
hereunder, as well as counters, millwork and fixtures affixed to the space
subleased hereunder, shall be deemed to be part of the Demised Premises
(such items are herein referred to as "Fixtures"). The holdroom seats,
carpet, ash and trash receptacles, furniture, personnel lockers and
shelving and other miscellaneous personal property actually located on the
Demised Premises on the Commencement Date that are not part of Terminal C
Systems or Services (hereafter defined) (such items are herein referred to
as "Miscellaneous Personal Property") are also hereby subleased by
American to Sublessee during the Term. An inventory of the Miscellaneous
Personal Property associated with the Initial Premises, Phase 2 Premises
and Additional Premises shall be prepared prior to the Commencement Date,
Phase 2 Premises Commencement Date and each Additional Premises
Commencement Date (hereinafter defined), as applicable, and initialed by
the parties for identification.
During the Term, Sublessee shall have a reasonable non-exclusive
right to use, in connection with Sublessee's air transportation
operations, in common with other airlines or tenants or subtenants of
Terminal C, each of the following systems or services associated with or
located in Terminal C (herein referred to as "Terminal C Systems or
Services"), all of which American hereby agrees to operate and maintain
during the Term: (i) inbound and outbound baggage conveyor systems, (ii)
preconditioned air system that supplies cooled air to the aircraft at each
gate, (iii) fixed ground power system to provide electric power supply to
the aircraft at each gate, (iv) aircraft gate control and communications
system, including apron control tower and related equipment, (v) premises
and passenger security and screening systems, (vi) emergency generator and
uninterruptible power supply standby electric power sources, (vii)
aircraft and premises closed-circuit television monitoring system, (viii)
flight and baggage information display system and (ix) plumbing,
electrical and HVAC systems.
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D. Additional Premises. American hereby grants to Sublessee the
option ("Option") to sublease from American all or any portion of the
additional space in the Base Lease Premises or the Improvements
specifically described and generally depicted on Exhibit B attached hereto
(the "Option Premises"), together with the Fixtures associated therewith
and the Miscellaneous Personal Property located thereon as described
above. The term of the Option ("Option Period") shall commence as of the
Execution Date and shall expire at 5:00 p.m. Fort Worth, Texas time on
August 31, 1997 ("Option Termination Date").
Sublessee may exercise the Option by delivering to American, at any
time prior to the Option Termination Date, an unconditional written notice
of exercise ("Notice") in substantially the form of Exhibit C attached
hereto. Sublessee shall have the right to deliver any number of Notices to
American during the Term of the Option, subject to the rules and
agreements that govern the type and amount of space and Improvements that
are permitted or required to be the subject of a given exercise of the
Option that are set forth on Exhibit D attached hereto. Among other
things, each Notice shall specify (i) the portion of the Option Premises
for which the Option is exercised ("Additional Premises") and (ii) the
date of the commencement of the Sublease of the Additional Premises (the
"Additional Premises Commencement Date"), which date (a) shall not be
earlier than the later of (i) June 15, 1995 and (ii) one hundred and
twenty (120) days after the date of delivery to American of the applicable
Notice and (b) shall not be later than ninety (90) days following the
Option Termination Date. Upon delivery of the Notice, Sublessee shall be
deemed to have exercised the Option and Sublessee shall become
unconditionally and irrevocably obligated to sublease from American, and
American shall become unconditionally and irrevocably obligated to
sublease to Sublessee, the Additional Premises, with a commencement date
on the Additional Premises Commencement Date, but otherwise on the terms
and conditions set forth in this Sublease. Each time Sublessee subleases
Additional Premises, Sublessee and American will execute an amendment to
this Sublease effective as of the Additional Premises Commencement Date
which will amend and restate the original Exhibit A to this Sublease such
that the Initial Premises and the Additional Premises are described
therein. If there shall have occurred and be continuing on the date of the
Notice or on the Additional Premises Commencement Date an Event of Default
by Sublessee under this Sublease, American may, at its option, refuse to
sublease to Sublessee the Additional Premises that are the subject of such
Notice, until and unless the breach giving rise to such Event of Default
has been timely cured in accordance with this Sublease. The Initial
Premises, the Phase 2 Premises and the Additional Premises (if any) shall
be referred to herein as the "Demised Premises."
Until Sublessee exercises the Option granted herein in accordance
with the terms hereof, American may utilize the portion of the Option
Premises not taken by Sublessee to the extent and in the manner American
deems appropriate (including without limitation by American's own
utilization thereof or by American's subleasing all or part of such
portion to a third party, subject to preserving Sublessee's Option rights
granted herein). If Sublessee fails to exercise its Option within the time
and in accordance with the terms and conditions set forth herein, for any
reason whatsoever,
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the Option and the rights of Sublessee hereunder in respect to such Option
shall automatically and immediately terminate without notice.
E. No Conflict. As of the date hereof and as of the Commencement
Date, each party represents and warrants to the other that the execution,
delivery and performance of this Sublease does not violate or breach, nor
conflict with, any agreement binding upon such party. American represents
and warrants to Sublessee that the Option Premises are and shall remain
free and clear of all tenancies and occupancies contrary to or in conflict
with the Option, subject to the terms of the Base Lease and except for a
sublease by American to Air South of up to two (2) gates in Terminal C.
2. Term. The term ("Term") of this Sublease shall commence on the date
mutually agreed upon by the parties (but not later than March 2, 1995, assuming
the requisite approval(s) of the Landlord have been obtained by that date) (the
"Commencement Date") and shall expire at 11:59 p.m. on February 28, 2013 unless
sooner terminated pursuant to the provisions hereof.
3. Base Lease Incorporated.
A. Sublease Subordinate. Except as set forth herein, the subletting
under this Sublease shall be on the same terms and conditions as are
contained in the Base Lease but Sublessee does not assume any of
American's obligations to Landlord thereunder. Further, Sublessee
acknowledges and agrees that this Sublease shall be in all respects
subject and subordinate to the Base Lease and to all amendments to the
Base Lease heretofore and hereafter entered into in accordance with this
Sublease. Nothing contained in this Sublease shall be deemed to confer
upon Sublessee any rights which are in conflict with the Base Lease, as
the same may be altered or amended from time to time. Sublessee shall not
do or permit to be done any act or thing which would contravene the terms
or conditions of the Base Lease, and the Base Lease shall govern in the
event of a conflict with this Sublease. In the event that the Base Lease
is canceled or terminated for any reason, the Term of this Sublease shall
automatically terminate simultaneously therewith. Sublessee hereby
acknowledges that the Base Lease is subordinate to certain airport revenue
bonds, as described in the Base Lease.
B. Base Lease In Effect. American represents that as of the date
hereof the Base Lease is in full force and effect. American represents
that American has not received, as of the date hereof, any notice of
default from the Landlord under the Base Lease. To the best of American's
knowledge, the Landlord has no current right to terminate the Base Lease.
Except for matters contested in good faith by American (which will be paid
by American in the event American is unsuccessful in such contest),
American hereby covenants that all rent has been or will be paid through
the Commencement Date and thereafter pursuant to said Base Lease on a
timely basis. American hereby represents that the Improvements and
American's leasehold interest
4
created by the Base Lease are unencumbered. So long as this Sublease is in
effect, American agrees that it will not terminate the Base Lease as
permitted pursuant to the Base Lease.
C. Base Lease Amendment American hereby agrees that it will not
initiate any amendment or modification of the Base Lease which materially
impairs Sublessee's rights under this Sublease without obtaining
Sublessee's prior written consent, which will not be unreasonably
withheld. In the event American requests Sublessee's approval of any such
amendment or modification to the Base Lease, Sublessee shall either grant
such approval or provide written notice to American setting forth in
reasonable detail Sublessee's reasons for withholding same within ten (10)
business days of receipt of request therefor from American. In the event
Sublessee fails to respond to American in writing within such ten (10)
business day period (time being of the essence), the amendment or
modification shall be deemed approved by Sublessee. American hereby agrees
that, promptly after the execution of any amendment of the Base Lease,
American shall mail a copy thereof to Sublessee. American shall not take
any discretionary action under, or fail to comply with, the Base Lease if
such action or failure materially impairs Sublessee's rights under this
Sublease.
4. Use. During the Term, Sublessee shall use and occupy the Demised Premises
for the uses allowed by the Base Lease for the Demised Premises and for no other
purpose.
5. Rent and Related Matters.
A. Rent.
(i) As rental for the Demised Premises, Sublessee shall pay
American rent at the rates set forth in Exhibit A for the actual
amount of square footage contained in the Demised Premises, without
set-off or deduction, due and payable in advance on the first day of
each month during the Term. The rates set forth on Exhibit A shall
increase by 2% (compounded annually) on January 1 of each year
during the Term, commencing January 1,1996. All rent due hereunder
is in addition to the Excepted Charges (as defined in Section
5.A.(ii)) and is in addition to the cost of utilities and services
described in Section 6. All rent, charges or other amounts due
hereunder shall be payable in lawful money of the United States of
America.
(ii) The rent due to American pursuant to this Sublease does
not include charges (herein collectively referred to as "Excepted
Charges") for Sublessee's landing fees, fueling charges, fuel
storage charges, employee parking charges (including employee
shuttle service to and from Terminal C), taxes and Common Use
Charges. For all Excepted Charges, Sublessee will either (a) pay
third parties directly or (b) reimburse American if American pays or
is billed for same. The term "Common Use Charges," as used herein,
shall mean any fee, expense or charge that Landlord may charge or
pass through to American under the Base Lease now or in the future,
together with charges for
5
the following (without duplication): (a) water and sewer service for
Terminal C, as described in Section C.1. of Schedule D of the Base
Lease, (b) the service fees for Operation and General Administration
for Terminal C described in Section C.2. of Schedule D of the Base
Lease, covering the items and services therein described, (c)
private branch exchange (PBX) telephone service for Terminal C
described in Section C.3. of Schedule D of the Base Lease, (d)
American's cost of clearing and removing snow, ice and debris from
the Terminal C aircraft parking apron and other areas as American is
required to do under Section 14.1 of the Base Lease, (e) American's
cost of providing cleaning, janitorial and trash compaction and
pickup services for Terminal C common use areas as American is
required to provide under Section 13.3 of the Base Lease, (f)
electricity, gas, local and long distance telephone service (if
separate billing for such telephone service is not provided by the
phone company to Sublessee) and other utilities supplied to Terminal
C by outside utility companies as described in Section 13.2 of the
Base Lease, (g) American's cost of maintaining and operating the
Terminal C Systems or Services, (h) American's cost of repairing and
maintaining the common use areas in Terminal C and repairing and
maintaining the walls, roof, exterior and structural elements of
Terminal C and the Terminal C aircraft parking apron, excluding
repairs required due to damage or destruction resulting from fire or
other casualty provided for in Section 13, and (i) American's cost
of providing passenger assistance and skycap functions in Terminal
C. All Common Use Charges shall be allocated in accordance with the
Common Use Formula.
"Common Use Formula" means a formula that prorates a Common
Use Charge amount between American and Sublessee so that each such
airline pays that proportion thereof which the number of gates it is
then leasing or subleasing as lessee or sublessee bears to all gates
(i.e., 26) in Terminal C. The portion of the Common Use Charges
allocable to Sublessee and other items under this Sublease
calculable with reference to the Common Use Formula shall be
recalculated each month, if necessary, to account for the subleasing
of additional gates, if any, by Sublessee.
(iii) In the event this Sublease commences or terminates on
other than the last day of any particular month, all rentals,
charges or other amounts due pursuant to this Sublease shall be
prorated.
B. Default Interest. If Sublessee shall default in its payment of
any rent, charges or other amounts required to be paid pursuant to this
Sublease, such unpaid amount shall bear interest from the date of default
at the lesser of: (a) eighteen percent (18%) per annum or (b) the maximum
interest rate permitted by law.
C. Late Payment. Sublessee acknowledges that the late payment by
Sublessee of any monthly installment of rent, charges or other amounts
will cause American to incur certain costs and expenses not contemplated
under this Sublease, the exact amount of which costs are difficult or
impracticable to determine. Therefore, if any such amount owing is not
received by American within ten (10) days following
6
the due date thereof, Sublessee shall immediately also pay to American a
late charge equal to three percent (3%) of such amount owing. To the
extent that any late charge provided for hereunder is determined to
constitute interest, in no event shall such late charges, plus any other
interest due on sums owed to American pursuant to this Sublease, ever
exceed the maximum interest rate permitted by law, and in the event such
amount should exceed the maximum rate, then the amount owed to American
shall automatically be reduced to equal the maximum amount permitted by
law.
D. {***}
E. {***}
F. Third Party Vendors. With respect to any Excepted Charges for
services for which American contracts with third party vendors directly,
American will endeavor to work with Sublessee and such vendors to the
extent American may legally do so, in order to assist Sublessee in
obtaining for Sublessee pricing and terms for such services no less
favorable than those enjoyed by American. There can be no assurance that
any such treatment of Sublessee will be obtained.
6. Utilities and Services: Parking. American will furnish the Demised
Premises with utilities and services to the extent that they are furnished to
American under the Base Lease and Sublessee agrees to pay for any Excepted
Charges for such utilities and services as provided above. American will
initially make available for the parking of Sublessee's employee's (or any
permitted sub-subtenant's employee's) passenger vehicles five hundred (500)
parking spaces in the Employee Parking Lot (as defined in the Base Lease) for
Sublessee's operations and reasonable, nonexclusive use, in common with other
tenants of Terminal C, of shuttle service provided by American between such
parking lot and Terminal C. Additional spaces will be made available by American
based upon Sublessee's and American's operational requirements. Sublessee shall
pay twenty-five dollars ($25.00) per
7
space per month for such use of the parking lot and shuttle service. Such
amounts for utilities, services, parking and shuttle service shall be in
addition to the rents due pursuant to this Sublease. The parking rate will
increase two percent (2%) (compounded annually) on January 1 of each year during
the Term, commencing January 1, 1996.
7. Acceptance of Premises. Sublessee has inspected the Demised Premises
(whether Initial Premises, Phase 2 Premises or Additional Premises) and accepts
them AS-IS (subject to American's agreement to modify certain gates as provided
in the next sentence) and acknowledges that, except as otherwise contained
herein, American has made no representations as to the condition thereof.
American, at American's sole cost and expense, shall, to the extent necessary,
modify each gate that is part of the Initial Premises to make such gate
compatible for use with Fokker F-100 aircraft on or prior to the Commencement
Date.
8. Repairs and Maintenance. The Sublessee, at its sole cost and expense,
shall keep the Demised Premises, including the Fixtures and Miscellaneous
Personal Property, in a clean, neat and orderly condition at all times,
including cleaning, janitorial and trash compaction and pickup. Further,
Sublessee shall, at its own expense, make all necessary repairs to the Demised
Premises, including the Fixtures and Miscellaneous Personal Property, other than
the repairs that American is responsible for as provided below, so as to
maintain the Demised Premises, including the Fixtures and Miscellaneous Personal
Property, in good order and condition, reasonable wear and tear excepted.
Sublessee shall be responsible for replacing or refurbishing Fixtures and
Miscellaneous Personal Property that is lost, stolen, destroyed or worn out, but
shall obtain American's and Landlord's prior written approval prior to such
replacement or refurbishment. In the event that Sublessee fails to make any
required repair or replacement or refurbishment within ten (10) days after
receiving written notice from American that such repair or replacement or
refurbishment is needed, in cases where such repair, replacement or
refurbishment is capable of being completed within ten (10) days, or in other
cases in the event that Sublessee falls within ten (10) days to commence and
thereafter diligently pursue completion of such repair or replacement or
refurbishment, American, without being obligated to do so, may make such repairs
or replacements or refurbishments and Sublessee shall thereafter promptly
reimburse American for all expenses incurred on account thereof. Subject to
Section 13 hereof, American shall make all necessary structural repairs to the
walls, roof, exterior, plumbing, electrical and HVAC system of the Demised
Premises so as to maintain such items in good order and condition, reasonable
wear and tear excepted. Other than repairs required due to damage or destruction
resulting from fire or other casualty provided for in Section 13, Subtenant
shall pay the cost of such maintenance and repair in accordance with the Common
Use Formula as provided in Section 5.A.(ii). In the event that American fails to
commence and diligently pursue completion of any such required repair within 60
days after receiving written notice from Sublessee that such repair is needed,
Sublessee, without being obligated to do so, may make such repairs and American
shall thereafter promptly reimburse Sublessee for all expenses incurred on
account thereof.
8
9. Taxes. Sublessee agrees to pay, before they become delinquent, all taxes
(both general and special), assessments or governmental charges of any kind
whatsoever, levied or assessed against the Demised Premises in the same
proportion as is provided with respect to Common Use Charges under the Common
Use Formula, or against the Miscellaneous Personal Property or against any
property of Sublessee located thereon or any business conducted by Sublessee
thereon (the "Taxes"). Sublessee agrees to use its best reasonable efforts to
cause its personal property and business operations to be assessed and taxed
separately from the Demised Premises. In the event that American shall be
assessed for Taxes on the Demised Premises or any or all of Sublessee's
leasehold improvements, equipment, furniture, fixtures, personal property or
Sublessee's business operations, Sublessee shall pay to American the amount of
the Taxes within ten (10) days after delivery to Sublessee by American of a
written statement and reasonably sufficient corresponding back-up documentation
setting forth the amount of the Taxes payable by Sublessee. On demand by
American, Sublessee shall furnish American with satisfactory evidence that the
payments required to be made by Sublessee hereunder have been made.
10. Alterations. Sublessee may not make any permanent alteration, addition or
improvement to the Demised Premises, without the prior written approval of
American (which approval by American shall not unreasonably be withheld or
delayed) and by the Landlord (if Landlord's approval is required by the Base
Lease). Unless American elects otherwise, all alterations, additions or
improvements to the Demised Premises shall become the property of American upon
the termination or expiration of this Sublease or any extension hereof. Any
alterations, additions or improvements made by Sublessee shall be removed by
Sublessee at its own cost and expense, prior to the termination or expiration of
the Term of this Sublease if American so elects at the time Sublessee requests
approval pursuant to this Section, and Sublessee shall repair any damage to the
Demised Premises caused by such removal.
11. Right of Entry. American shall have the right to enter the Demised
Premises for any reasonable purpose, including to gain access to and egress from
those portions of the Base Lease Premises or the Improvements not leased to
Sublessee hereunder and to perform such functions as may be necessary or
convenient for the repair or maintenance thereof in accordance with Section 8
above. American agrees that it will not unreasonably interfere with Sublessee's
use of the Demised Premises in connection with such entry.
12. Compliance with Law. American shall deliver possession of the Demised
Premises to Sublessee on the Commencement Date, the Phase 2 Commencement Date
and the Additional Premises Commencement Date, as applicable, in compliance with
all applicable statutes, ordinances, rules, regulations, orders and directives
of any governmental authority applicable to the Demised Premises, which covenant
shall survive the delivery of possession of the Demised Premises. Subject to the
preceding sentence, Sublessee will comply with all applicable statutes,
ordinances, rules, regulations, orders and directives of any governmental
authority applicable to the Demised Premises or to Sublessee's use or occupancy
thereof and perform, at Sublessee's own expense, all obligations imposed
thereby.
13. Casualty. In the event that the Demised Premises or any portion thereof
should be damaged or destroyed by fire or other casualty to such an extent that
Sublessee's use of the Demised Premises is substantially and adversely impaired,
American, at its option, may either
9
terminate this Sublease or diligently proceed to cause the repair of the damage
to the Demised Premises. If American elects to repair or rebuild, and if the
Demised Premises are so damaged that Sublessee is unable to occupy the Demised
Premises or a portion thereof during such repair or reconstruction, then the
rental hereunder shall be appropriately abated until the Demised Premises can be
occupied by Sublessee. American will notify Sublessee of American's decision as
to whether to terminate this Sublease or repair the damage. Such notice from
American shall specify American's estimated time period for completion of
repairs, if American has chosen to repair the damage. If such estimated period
for repairs is longer than nine (9) months, Sublessee may, at its option, by
written notice to American not later than thirty (30) days after American's
notice, terminate this Sublease. American shall in no event be required to
rebuild, repair or replace any improvements, fixtures or personal property of
Sublessee; provided however, in the event the Improvements, the Demised Premises
or the Base Lease Premises are damaged or destroyed through the negligent or
willful act or negligent or willful omission to act of Sublessee, its officers,
directors, employees, agents, customers, concessionaires, vendors, contractors
or invitees, then Sublessee shall pay to American upon demand, the cost of
repairing all such damage to Sublessee's improvements, fixtures and personal
property.
14. Release and Indemnity.
A. Release. Sublessee hereby releases American and agrees that
American shall not be liable for any loss or any damage to any property
(including without limitation the property of Sublessee, its officers,
directors, employees, agents, customers, concessionaires, vendors,
contractors or invitees) or the death or injury of any persons (including
without limitation Sublessee, its officers, directors, employees, agents,
customers, concessionaires, vendors, contractors or invitees) caused by
theft, fire, acts of God, public enemy, injunction, riot, strike,
insurrection, war, or any other action of any governmental body or
authority, by other tenants of the Base Lease Premises, the Improvements,
the Demised Premises or any other matter beyond the control of American,
or for any injury or damage or inconvenience which may arise through
repair or alteration of any part of the Demised Premises, the Base Lease
Premises or the Improvements, or failure to make repairs, or for any cause
whatsoever, expressly excepting from each of the foregoing any loss or
damage to the extent caused solely by (i) the negligent or willful act or
negligent or willful omission to act of American or its officers,
directors, employees, agents, customers, concessionaires, vendors,
contractors or invitees or (ii) any breach by American of its obligations
under this Sublease.
B. Sublessee Indemnity. Sublessee hereby agrees to indemnify,
defend, protect and hold harmless American and Landlord, their respective
officers, directors, employees, agents, customers, concessionaires,
vendors, contractors and invitees (the "Indemnified Parties") from and
against any and all liabilities, claims, penalties, fines, causes of
action, suits, liens, losses, losses of use, damages, costs and expenses
of any kind (including without limitation reasonable legal fees and
disbursements) which may be suffered by, accrued against, charged to or
recoverable from the Indemnified Parties (except for excluded damages
under Section 14.D. below) by reason of (i) any Event of Default by
Sublessee under this Sublease; or (ii) any occurrence in, upon, or
10
at the Demised Premises, however caused, including without limitation
occurrences caused, in whole or in part, by the negligent or willful act
or negligent or willful omission to act of Sublessee, its officers,
directors, employees, agents, customers, concessionaires, vendors,
contractors or invitees; or (iii) any occupancy, use, or misuse of the
Demised Premises, or the areas surrounding the Demised Premises or the
service areas, parking areas, pedestrian areas, pedestrian walks or
driveways in or around the Demised Premises, by Sublessee, its officers,
directors, employees, agents, customers, concessionaires, vendors,
contractors or invitees; or (iv) any occurrence elsewhere in the Base
Lease Premises or the Improvements caused in whole or in part by the act
or omission of Sublessee; or (v) any occurrence caused by the violation of
any law, regulation or ordinance by Sublessee or its employees, officers,
directors, employees, agents, customers, concessionaires, vendors,
contractors or invitees, provided that the foregoing indemnity shall not
apply to any loss or damage to the extent (i) caused solely by the
negligent or willful act or negligent or willful omission to act of
American or its officers, directors, employees, agents, customers,
concessionaires, vendors, contractors or invitees or (ii) covered by
American's indemnity in Section 14.C.
C. American Indemnity. American agrees to indemnify, defend, protect
and hold harmless Sublessee (including the payment of Sublessee's
reasonable attorneys' fees and disbursements) against and from all
liabilities, obligations, damages, penalties, claims, costs, charges, and
expenses, which may be imposed or asserted against Sublessee (except for
excluded damages under Section 14.D. below) by reason of (i) any breach by
American of its obligations under this Sublease; or (ii) any event
occurring on the Demised Premises prior to the Commencement Date of this
Sublease or (iii) any failure of American to make timely payments of rent
when due and owing under the Base Lease or other breach by American of the
Base Lease, unless such failure or breach is a result of Sublessee's
failure to pay rent or other amounts due under this Sublease or to perform
Sublessee's other obligations under this Sublease.
D. Excluded Damages. Under no circumstances shall either party be
liable to the other party hereunder for consequential, indirect, special,
exemplary or incidental damages.
15. Insurance.
A. Coverage. During the Term of this Sublease, Sublessee, at its
sole cost and expense, shall maintain with insurers reasonably acceptable
to American, the following coverage: (i) Comprehensive Airline Liability
insurance, including but not limited to Comprehensive General Liability,
Contractual Liability and Automobile Liability coverages in an amount not
less than $300 Million (for each occurrence) for bodily injury and
property damage combined single limit, and (ii) all risk property
insurance covering loss of or damage to property of the Sublessee and the
Miscellaneous Personal Property in an amount at least equal to the value
of such property. Sublessee shall also maintain Worker's Compensation and
Employer's Liability coverage as may be required by law.
11
B. Form and Certificates. The liability policies shall: (i) name
American and the Landlord as additional insureds; (ii) specifically insure
the liability assumed by Sublessee under Section 14; (iii) be primary
without right of contribution from any insurance carried by American or
the Landlord; (iv) provide for at least thirty (30) days prior written
notice to American and the Landlord prior to cancellation or material
change in coverage; and (v) provide for a waiver of subrogation as set
forth in Section 15.C. below. Certificates evidencing the above coverages
and special endorsements shall be provided to American and the Landlord at
least ten days prior to the date Sublessee takes possession of the Demised
Premises.
C. Waiver of Subrogation. Each of Sublessee and American, on behalf
of itself and its insurers, hereby waives any claim or right of recovery
from the other party or Landlord, their officers, directors, employees,
agents, customers, concessionaires, vendors, contractors and invitees, for
loss or damage to the other party or its property or the property of
others under such other party's control, to the extent that such loss is
required to be covered by insurance policies carried by the waiving party
pursuant to this Section. Sublessee and American shall provide notice of
this waiver of subrogation to their insurers. Sublessee and American each
hereby mutually agree that so long as such clause or endorsement is
available at commercially reasonable rates, any fire and extended coverage
insurance policies carried by the parties hereto on properties which are
the subject of this Sublease and the all risk property insurance to be
carried by Sublessee pursuant to Section 15.A. above shall include a
waiver of subrogation clause or endorsement whereby the underwriters agree
to waive any rights of subrogation against the other party hereto.
16. Liens. Sublessee hereby agrees to keep the Demised Premises, and the
improvements thereon, free and clear of mechanics' liens and other liens for
labor, services, equipment or materials unless such liens are attributable to
direct contracts with American. In the event such a lien is filed or recorded,
Sublessee shall take all action required to remove the same within thirty (30)
days of the filing or recordation. In the event that Sublessee fails to take
such action to remove the lien, then American may do so and all costs associated
therewith shall be due to American from Sublessee upon demand.
17. Condemnation.
A. Total Taking. If during the Term of this Sublease or any
extension or renewal thereof, all or a substantial part of the Demised
Premises should be taken for any public or quasi-public use under any
governmental law, ordinance or regulation or by right of eminent domain,
or should be sold to the condemning authority under threat of
condemnation, this Sublease shall terminate and the rent hereunder shall
be abated during the unexpired portion of this Sublease, effective from
the date of taking of the Demised Premises by the condemning authority.
B. Partial Taking. If less than a substantial part of the Demised
Premises is taken for public or quasi-public use under any governmental
law, ordinance or regulation, or by right of eminent domain, or is sold to
the condemning authority under threat of condemnation, American, at its
option, may by written notice terminate this
12
Sublease or shall forthwith at its sole expense restore the Demised
Premises (other than leasehold improvements made by Sublessee), situated
on the Demised Premises in order to make the same reasonably tenantable
and suitable for the uses for which the Demised Premises are subleased.
Thereafter, the rent payable pursuant to this Sublease during the
unexpired portion of this Sublease shall be adjusted equitably.
C. Awards. American and Sublessee shall be entitled to receive and
retain such separate awards and portions of lump sum awards as may be
allocated to their respective interests in any condemnation proceedings.
The termination of this Sublease shall not affect the rights of the
respective parties to such awards.
18. Default and Remedies.
A. Event of Default by Sublessee. Each of the following occurrences
relative to Sublessee shall constitute an "Event of Default" by Sublessee
under this Sublease:
(i) Failure or refusal by Sublessee to make the timely payment
of any rent or other sums payable under this Sublease not later than
ten (10) days following the date the same shall become due and
payable; or
(ii) Abandonment or vacating a substantial portion or all of
the Demised Premises; or
(iii) The filing or execution or occurrence of a petition in
bankruptcy or other insolvency proceeding by or against Sublessee or
any guarantor of Sublessee; or petition or answer seeking relief
under any provision of Federal or State bankruptcy or insolvency
laws (herein collectively referred to as "Bankruptcy Laws"); or an
assignment for the benefit of creditors or composition; or a
petition or other proceeding by or against the Sublessee for the
appointment of a trustee, received or liquidator of Sublessee or any
of Sublessee's property under Bankruptcy Laws; or a proceeding by
any governmental authority for the dissolution or liquidation of
Sublessee or any guarantor of Sublessee under Bankruptcy Laws and in
the case of involuntary proceedings under Bankruptcy Laws, such
proceedings are not dismissed within sixty (60) days after the
commencement thereof; or
(iv) Failure by Sublessee in the performance or compliance
with any of the agreements, terms, covenants or conditions provided
in this Sublease, to be performed by Sublessee, other than those
referred to in (i) and (ii) above, for a period of thirty (30) days
after notice from American to Sublessee specifying the items in
default; or
(v) If (1) any breach or default occurs under any of the
following agreements under which Sublessee may be obligated,
directly or indirectly, as borrower, installment purchaser, lessee,
sublessee, guarantor or otherwise: (a) any agreement or agreements
involving the borrowing of money or the
13
extension of credit which exceed $250,000 in the aggregate, (b) any
leases or subleases of real or personal property pursuant to which
Sublessee's monetary obligations in the nature of rent or similar
obligations exceed either $20,000 per month in the aggregate or
$250,000 in the aggregate for the remaining term of the affected
leases and subleases (including without limitation any agreement or
agreements pursuant to which Sublessee leases or subleases real or
personal property from American or any of its Affiliates), (c) any
other agreement or agreements with American or any of its Affiliates
and (2) such breach or default consists of failure to pay any
indebtedness or other obligation when due or if such breach or
default permits or causes (or upon notice or lapse of time or both
would permit or cause) the acceleration of any indebtedness or other
obligation, or the termination of any lease, agreement or commitment
to lend and (3) such breach or default is not cured within the
applicable cure period. As used herein, the term "Person" shall mean
an individual, corporation, partnership, joint venture, association,
joint stock company, trust, unincorporated organization or
government or any group or political subdivision thereof; and the
term "Affiliate" shall mean with respect to any Person, any other
Person directly or indirectly controlling or controlled by or under
common control with such Person (and the term "control" within the
foregoing definition of Affiliate means the power, directly or
indirectly, to direct or cause the direction of the management and
policies of such Person whether through the ownership of voting
securities or by contract or otherwise).
B. Remedies of American. This Sublease and Term and estate hereby
made are subject to the limitation that if and whenever any Event of
Default by Sublessee under this Sublease shall occur, American may, at
American's option and without order of any court or further written notice
to Sublessee, in addition to all other remedies given hereunder or by law
or equity, do any one or more of the following:
(i) Terminate this Sublease in which event Sublessee shall
immediately surrender possession of the Demised Premises to
American;
(ii) Enter upon or take possession of the Demised Premises,
securing it against unauthorized entry and expel or remove Sublessee
and any other occupant therefrom with or without having terminated
the Sublease; and
(iii) Alter locks and other security devices at the Demised
Premises.
C. Acceptance of Surrender. Exercise by American of any one or more
remedies shall not constitute an acceptance of surrender of the Demised
Premises by Sublessee, whether by agreement or by operation of law, it
being understood that such acceptance of surrender can be effected only by
the written agreement of American and Sublessee.
D. Accelerated Rent. If American repossesses the Demised Premises
without terminating the Sublease, then Sublessee shall pay to American all
rent and other indebtedness accrued to the date of such repossession,
which is hereby
14
accelerated at such time, plus rent and other sums required to be paid by
Sublessee during the remainder of the Term, diminished by any net sums
thereafter received by American through reletting the Demised Premises
during said period (after deducting expenses incurred by American as
provided below). Re-entry by American will not affect the obligations of
Sublessee for the unexpired Term. Sublessee shall not be entitled to any
excess of any rent obtained by reletting over the rent herein reserved.
Actions to collect amounts due by Sublessee may be brought on one or more
occasions, without the necessity of American's waiting until expiration of
the Term.
E. Other Costs. Upon the occurrence of an Event of Default by
Sublessee, Sublessee shall also pay to American: the cost of removing from
the Demised Premises and storing Sublessee's or any other occupant's
property; the cost of repairing, altering, remodeling or otherwise putting
the Demised Premises into condition acceptable to a new tenant or tenants;
and all reasonable expenses incurred by American in enforcing American's
remedies, including reasonable attorney's fees and court costs.
F. Reletting Demised Premises. Upon termination of this Sublease or
repossession of the Demised Premises for an Event of Default by Sublessee,
American shall not be obligated to relet or attempt to relet the Demised
Premises, or any portion thereof, or to collect rental after reletting,
but American shall have the option to relet or attempt to relet. In the
event of reletting, American may relet the whole or any portion of the
Demised Premises for any period, to any tenant and for any use or purpose.
G. Remedial Costs. If Sublessee should fail to make any payment,
perform any obligation, or cure any default hereunder, American, without
obligation to do so and without thereby waiving such failure or default,
may make such payment, perform such obligation, and/or remedy such other
default for the account of Sublessee (and enter the Demised Premises for
such purpose), and Sublessee shall pay upon demand all costs, expenses and
disbursements (including reasonable attorney's fees) incurred by American
in taking such remedial action.
H. Sublessee Unique. American and Sublessee hereby acknowledge and
agree (i) that the passenger airline business and other services to be
provided by the Sublessee on the Demised Premises are of an unique nature,
(ii) that the Sublessee has special experience, equipment, and personnel
which make it especially suited to the operation of such a business and
the providing of such services to the Raleigh-Durham-Chapel Hill, North
Carolina market area, and (iii) that American's decision to grant this
Sublease was based materially on Sublessee's possession of such unique
experience, equipment and personnel. In addition, the Sublessee
acknowledges and agrees that the nature of its business, and the risks to
the general public inherent therewith, require constant monitoring,
maintenance and precise operation of the Demised Premises, and that
American is liable and responsible to the Landlord for the operation and
maintenance of the Demised Premises under the terms of the Base Lease.
Accordingly, upon the filing of a bankruptcy case by or against the
Sublessee, the Sublessee hereby agrees to permit American access to and
possession of the
15
Demised Premises for such purposes as American deems in its and the
public's interest, notwithstanding the provisions of any automatic stay
under any applicable Bankruptcy Laws.
19. American's Lien. In addition to any statutory lien for rent, damages, and
costs of any sale as provided in this Sublease in American's favor, American
shall have and Sublessee hereby grants to American a continuing security
interest for all rentals and other sums of money becoming due hereunder from
Sublessee, upon all goods, wares, equipment, fixtures, furniture, inventory,
accounts, contract rights, chattel paper and other personal property of
Sublessee, and the proceeds and products thereof situated on the Demised
Premises, and, after the occurrence of an Event of Default by Sublessee under
this Sublease, such property shall not be removed therefrom without the consent
of American until all arrearage in rent as well as any and all other sums of
money then due to American hereunder all first have been paid and discharged.
Upon the occurrence of an Event of a Default by Sublessee under this Sublease,
American shall have, in addition to any other remedies provided herein or by
law, all rights and remedies under the Uniform Commercial Code, including,
without limitation, the right to sell the property described in this Section at
public or private sale upon five (5) days notice to Sublessee. Sublessee hereby
agrees to execute such financing statements and other instruments necessary or
desirable in American's discretion to perfect the security interest hereby
created. Any statutory lien for rent, damages and costs is not hereby waived,
the express contractual lien herein granted being in addition and supplementary
thereto.
20. Cumulative Rights. American's rights and remedies hereunder shall be
cumulative and shall not be exclusive of one another, and American shall have
the right to pursue any one or more of them. American's acceptance of any rent
or other payments due hereunder or American's failure to take any action on
account of a default if such default persists or is repeated, shall not be
deemed a waiver of any default. American's consent to any act by Sublessee
requiring American's consent or approval shall not be deemed to waive or render
unnecessary American's consent or approval to any subsequent or similar acts by
Sublessee.
21. Surrender of Premises/Holding Over. At the expiration or earlier
termination of this Sublease, Sublessee shall surrender the Demised Premises and
the Miscellaneous Personal Property to American in good condition, broom clean,
reasonable wear and tear, damage by fire or other casualty excepted. Should
Sublessee remain in possession of the Demised Premises, or any portion thereof,
after the termination of this Sublease (whether by expiration of the Term of
this Sublease or otherwise), without execution of a new Sublease, Sublessee
shall become a tenant from month to month and shall be liable to pay monthly
rental at one and one-half times the applicable rate provided hereunder, as long
as Sublessee remains in the Demised Premises. Such tenancy shall be subject to
all terms and conditions of this Sublease.
22. Assignment and Sublease. Sublessee shall not assign or transfer this
Sublease or any right hereunder or sublet the Demised Premises during the Term
of this Sublease, without the prior written consent of American and Landlord.
American agrees that its consent to a subletting to a commuter carrier that
codeshares with Sublessee shall not be unreasonably withheld or delayed;
provided, in all cases Landlord's consent must be obtained on conditions
reasonably acceptable to American; and provided further that Sublessee agrees
that it would
16
be reasonable for American to withhold its consent in American's sole discretion
to any such subletting by Sublessee to such a commuter carrier that is a
Disqualified Investor (as defined below) (except for such commuter carrier's
status as an airline). Both parties acknowledge that Landlord is under no
obligation to grant its consent to any requested assignment, transfer or
subletting. For the purposes of this Sublease, the term "transfer" shall
include, without limitation, any of the following: (i) Sublessee's merger with
or into another Person (except any merger in which each of the following
conditions is satisfied: (A) the shareholders of Midway Airlines Corporation, as
of immediately prior to such merger, receive or retain 80% or more of the equity
securities of the merged entity as of immediately after such merger and (B) such
merger does not cause or result in any other event or condition specified in
this Sublease which would give American the right to terminate this Sublease);
or (ii) Sublessee's sale or other transfer of all or substantially all of its
assets to any other Person. Consent to one subletting shall not be deemed to be
consent to any subsequent subletting. In the event of subletting as provided
above, Sublessee shall remain bound and responsible for performance of all of
the terms, covenants, agreements, conditions and provisions of this Sublease,
including the payment of rents, fees and charges, to the same extent as if there
had been no subletting.
23. Accord and Satisfaction. No payment or receipt by American of a lesser
amount than the rent or other charges herein stipulated shall be deemed to be
other than on account of the rent or such charges. Further, no endorsement or
statement on any check or any letter accompanying any check shall be deemed to
be an accord and satisfaction. American may accept such check or payment without
prejudice to American's right to recover the balance of such rent or other
charges or pursue any other remedy provided in this Sublease.
24. Force Majeure. Neither party shall be deemed to be in breach of this
Sublease by reason of a failure to perform any of its obligations hereunder to
the extent that such failure is caused by a labor strike, unavailability of
materials or utilities, riots, rebellion, insurrection, invasion, war, action or
interference or governmental authorities, acts of God, or any other cause
whether similar or dissimilar to the foregoing which is reasonably beyond the
control of the parties; provided, however, this clause shall not apply to
Sublessee's obligation to pay rent or other sums due hereunder, such obligation
being absolute and unconditional.
25. Attorneys' Fees. In the event that either party hereto defaults in the
performance of any of the terms or conditions contained in this Sublease and
either party places the enforcement of all or part of this Sublease in the hands
of an attorney for enforcement, including the filing of a suit upon the same,
the prevailing party agrees to pay all of the other party's actual attorneys'
fees and costs.
26. GOVERNING LAW. THIS SUBLEASE SHALL BE GOVERNED BY AND CONSTRUED UNDER THE
INTERNAL LAWS OF THE STATE OF NORTH CAROLINA WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES.
17
27. Entire Agreement/Amendment. The Sublease constitutes the complete
agreement of American and Sublessee with respect to the subject matter hereof
and supersedes all prior and contemporaneous agreements, representations,
warranties and understandings concerning the same between American and
Sublessee, whether written or oral. The provisions of the Sublease may be
modified, amended or waived only by a written instrument, executed by American
and Sublessee.
28. Waiver. A waiver by either party to this Sublease of any breach of the
covenants, conditions or agreements contained herein shall not be construed as a
waiver of any succeeding breach of the same or other covenants, conditions or
agreements.
29. Severability. If any provision or term of this Sublease shall be
determined to be illegal, invalid or unenforceable, the remainder of this
Sublease shall not be affected and shall remain valid and enforceable to the
fullest extent permitted by law.
30. Approval by Landlord. The effectiveness of this Sublease is conditioned
upon prior written consent to this Sublease being obtained from the Landlord in
a form satisfactory to American and Sublessee. In the event the Landlord does
not give such consent, either of the undersigned parties may, at its option,
rescind this Sublease and this Sublease shall thereafter be of no force or
effect.
31. Notices. All notices, reports, invoices and other communications required
or permitted hereunder to be given to or made upon any party hereto in writing,
shall be addressed as provided below and shall be considered as properly
dispatched (i) if delivered in person; (ii) if sent by an express courier
delivery service which provides signed acknowledgments of receipt; (iii) if
deposited in the U.S. mail, certified or registered first class mail, postage
prepaid, return receipt requested or (iv) if transmitted by facsimile (upon
receipt by sender thereof of evidence that a complete transmission of such copy
was made to the recipient thereof) and, if sent by facsimile, confirmed by (a)
telephone contemporaneously to the person entitled to receive such notice or to
such person's secretary, or (b) dispatching a hard copy of such notice by the
methods set forth in (i), (ii) or (iii) above. All notices shall be effective
upon receipt. For the purposes of notice, the addresses of the parties shall be
as set forth below; provided, however, that either party shall have the right to
change its address for notice to any other location by giving at least thirty
(30) days prior written notice to the other party in the manner set forth above.
When to American: AMERICAN AIRLINES, INC.
Attn: Vice President-Corporate Real Estate
P.O. Box 619616, MD 4213
XXX Xxxxxxx, XX 00000-0000
Overnight Delivery Address: 0000 Xxxx Xxxxxx Xxxx.,
XX 0000
Xxxx Xxxxx, XX 00000
Facsimile Number - (000) 000-0000
18
With a copy to: American Airlines, Inc.
Attn: Vice President-Corporate and Fleet Planning
P.O. Box 619616, MD 5566
XXX Xxxxxxx, XX 00000-0000
Overnight Delivery Address:
0000 Xxxx Xxxxxx Xxxx., XX 0000
Xxxx Xxxxx, XX 00000
Facsimile Number - (000) 000-0000
When to Sublessee: MIDWAY AIRLINES CORPORATION
Attn: President
0000 X. Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Facsimile Number - (000) 000-0000
With Copy to: Xxxxxxxxx & Xxxxxxxxxxx, P.C.
Attn: Xxxxxxxx X. Xxxxxx
0 Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Facsimile Number - (000) 000-0000
32. Quiet Enjoyment. Upon Sublessee's payment of all sums due hereunder and
provided that Sublessee is not otherwise in default hereunder, Sublessee shall
peaceably and quietly hold, occupy and enjoy the Demised Premises for the Term
of this Sublease without hindrance, ejection or interruption by American, or
persons lawfully claiming through American.
33. Binding Effect. Subject to prohibitions against assignment, transfer and
subletting, this Sublease shall be binding upon the parties, their personal
representatives, successors and assigns.
34. Other Space. If Sublessee has not yet exercised its Option on all of the
Option Premises and it wishes to lease space in excess of the Demised Premises
at RDU, it will, prior to attempting to lease space at RDU from another person
or entity (including without limitation, Landlord), give at least thirty (30)
days prior written notice to American of the type and quantity of space desired
(the "Sublessee Excess Space Notice"). American will have the right, but not the
obligation, to sublease such space to Sublessee, subject to American's obtaining
the prior written consent of the Landlord on conditions reasonably acceptable to
American. American shall respond to Sublessee within thirty (30) days of the
date it received the Sublessee Excess Space Notice as to whether it has elected
to provide such space. If American responds that it is willing to provide such
space, it shall proceed to request consent from Landlord after the lease terms
are agreed between the parties. If Landlord fails to give its consent, American
shall not be obligated to sublease to Sublessee the requested space,
19
such space, or if American fails to respond within such 30-day period, Sublessee
may seek to obtain space at RDU from any other source.
35. Financial and Statistical Reports. Sublessee will deliver to American the
reports described on Exhibit E.
36. Offset If at any time there shall be amounts past due and owing from
Sublessee to American under this Sublease, American may offset any sums American
may owe under any agreement between American or its affiliates and Sublessee
against such amounts due and owing from Sublessee under this Sublease.
37. Competition. Nothing contained herein shall be deemed to restrict either
American's or Sublessee's right to fly any route such party chooses to fly out
of RDU or from any other airport.
38. American's Annual Report. On or before April 1 of each calendar year
during the Term and within 60 days following the date on which the Term expires,
American shall provide Sublessee with a report showing the amount spent by
American pursuant to Section 5.A.(ii)(b) of this Sublease or received by
American pursuant to Article 15 of the Base Lease, in each case shown on a
monthly basis during the most recently concluded calendar year, or portion
thereof (along with such supporting documents as Sublessee shall reasonably
request from time to time hereunder) and also showing American's calculations on
a monthly basis, of the amounts payable by or owing to Sublessee pursuant to
Section 5.A.(ii)(b) and Section 5.D. of this Sublease. If such report shows that
an adjustment to any amount paid by or to Sublessee is required pursuant to the
terms of this Sublease, then the party shown to be owing amounts (as a
reimbursement or otherwise) to the other party shall promptly make such payment
to the other within thirty (30) days following Sublessee's receipt of written
notice of such adjustment. American shall give Sublessee and its agents access
during normal business hours to documents and/or personnel as may be reasonably
necessary for Sublessee to review the report submitted by American to Sublessee
pursuant to this Section 38. The terms of this Section 38 shall survive the
termination of this Sublease for a period of one (1) year.
39. Construction. For convenience, the parties hereto have used the term
"sublease" to cover those portions of both the Base Lease Premises and the
Improvements to be covered hereby, and such term shall include the lease of the
applicable Improvements as well as the sublease of the applicable Base Lease
Premises to Sublessee on the terms and conditions set forth herein.
20
WITNESS the signatures of the parties as of the date first written above.
AMERICAN AIRLINES, INC.
By: /s/ [ILLEGIBLE]
-------------------------------------
Its: VP CORPORATE/FLEET PLANNING
ATTEST:
/s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Secretary
(Corporate Seal)
STATE OF TEXAS
COUNTY OF TARRANT
I, a Notary Public of the County and State aforesaid, do hereby certify
that Xxxxxxx X. Xxxxxxx personally came before me this day and acknowledged that
he is Corporate Secretary of American Airlines, Inc., a Delaware corporation,
and that by authority duly given and as the act of the corporation, the
foregoing instrument was signed in its name by its Vice President, sealed with
its corporate seal and attested by himself as its Corporate Secretary.
Witness my hand and official stamp or seal, this the 19th day of January,
1995.
/s/ Xxxxx X. Xxxxxxx
------------------------------------
Notary Public
My Commission Expires: 11/08/96
(Seal)
21
MIDWAY AIRLINES CORPORATION
By: /s/ [ILLEGIBLE]
-------------------------------
Its: President
ATTEST:
/s/ X X Xxxxxx
-----------------------------
Secretary
(Corporate Seal)
STATE OF ILLINOIS
COUNTY OF XXXX
I, a Notary Public of the County and State aforesaid, do hereby certify
that Xxxxxxxx X. Xxxxxx personally came before me this day and acknowledged that
he is Corporate Secretary of Midway Airlines Corporation, a Delaware
corporation, and that by authority duly given and as the act of the corporation,
the foregoing instrument was signed in its name by its President, sealed with
its corporate seal and attested by himself as its Corporate Secretary.
Witness my hand and official stamp or seal, this the 20th day of January,
1995.
/s/ Xxxx X. Xxxxxxx
-----------------------------------
Notary Public
My Commission Expires: ___________________
(Seal)
"OFFICIAL SEAL"
XXXX X. XXXXXXX
NOTARY PUBLIC, STATE OF ILLINOIS
My Commission Expires Feb. 4, 1997
22
ORIGINAL COPIES
EXHIBIT A
INITIAL PREMISES AND RENTAL
11,686 sq. ft. Holdrooms and Related (7 Gates, numbered 1, 2, 3, 4, 7, 9
and 11) in the cross-hatched areas generally depicted within the Terminal C
Upper Level on page A-2 attached. American and Sublessee acknowledge that the
holding and access areas for Sublessee's gates within the Demised Premises and
the holding and access areas for adjacent gates operated by American are
generally open to passenger traffic, and the parties agree not to preclude or
impede access between such areas.
1,148 sq. ft. Ticket Counter (10 positions) in the cross-hatched area
generally depicted within the Terminal C Upper Level on page A-2 attached.
13,190 sq. ft. Operations/Offices in the cross-hatched areas generally
depicted within the Terminal C Upper Level and Terminal C Lower Level on pages
A-2 and A-3 attached.
5,400 sq. ft. Baggage Makeup in the cross-hatched areas generally depicted
within the Terminal C Lower Level on page A-3.
1995 Annual
Rental Rate Per
Square Foot(1)
--------------
Ticket Counter {***}
Holdrooms & Related {***}
Operations/Offices {***}
Baggage Makeup {***}
----------
(1) Rental rates will increase 2% (compounded annually) on January 1 of
each year during Term, commencing January 1, 1996.
A-1
EXHIBIT A
A-2
Map of American Airlines
at Raleigh-Durham Airport
Terminal C
Upper Level
EXHIBIT A
A-2
Map of American Airlines
at Raleigh-Durham Xxxxxxx
Xxxxxxxx X
Xxxxx Xxxxx
XXXXXXX X
OPTION PREMISES
See pages B-2 and B-3 attached
B-1
EXHIBIT B
B-2
Map of American Airlines
at Raleigh-Durham Airport
Terminal C
Upper Level
EXHIBIT B
B-3
Map of American Airlines
at Raleigh-Durham Airport
Terminal C
Lower Level
SCHEDULE 1 to EXHIBIT C
NOTICE OF EXERCISE OF OPTION
Space Added
_____ sq. ft. Ticket Counter (__ positions)
_____ sq. ft. Holdrooms & Related (__ gates)
_____ sq. ft. Operations/Offices
_____ sq. ft. Baggage Makeup
Description and Location of Space Added:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
1
EXHIBIT D
RULES GOVERNING AMOUNT AND TYPE OF OPTION PREMISES
The intent of the parties with respect to the rules stated herein is to
maintain the value and useability for airline operations of every type of space
in Terminal C. Sublessee shall exercise the Option in each case in a manner that
maintains proportion among the various categories of space in Terminal C in
accordance with the table set forth below.
Total Total Total Gates Total Sq. Ft.
Bag Ticket (Includes Operations/
Make-up Counter Associated Offices
Piers Positions Holdroom) Space (Range)
----- --------- --------- -------------
3 12 8 10,000 to 20,000
3 __ 9 10,000 to 20,000
3 14 10 10,000 to 20,000
3 __ 11 10,000 to 20,000
__ 16 12 10,000 to 20,000
4 __ 13 15,000 to 24,000
4 18 14 15,000 to 24,000
__ 20 15 15,000 to 26,000
5 22 16 15,000 to 26,000
5 __ 17 17,000 to 28,000
5 24 18 20,000 to 30,000
5 24 19 22,000 to 32,000
Ticket counter positions may be taken by Sublessee under the Option only
two at a time. The entire holdroom associated with each gate taken by Sublessee
under the Option must be taken with that gate. Ticket counter positions that are
taken by Sublessee under the Option must be contiguous to existing ticket
counter positions subleased by Sublessee. Gates and holdrooms that are taken by
Sublessee under the Option must be contiguous to existing gates and holdrooms
subleased by Sublessee.
The office space behind each ticket counter position may be taken by
Sublessee under the Option in such amounts as shall be mutually agreed in
writing by American and Sublessee, based upon American's, Sublessee's and other
Terminal C tenants' operational needs, or in the absence of such mutual
agreement, in an amount that is proportional to the number of each occupant's
ticket counter positions. The requirement stated above that a category of space
must be contiguous need not be followed if American's space, other tenants'
space or public use areas make it impossible for Sublessee to take space that is
contiguous.
D-1
EXHIBIT E
SUPPLEMENTAL PROVISIONS
During the term of this Sublease, Sublessee shall furnish to American (to
4333 Xxxx Xxxxxx Boulevard, MD 5566, Xxxx Xxxxx, Xxxxx 00000, Attention: Vice
President - Corporate and Fleet Planning) the following:
As soon as available and in any event within one hundred eighty (180)
days after the close of each fiscal year of Sublessee, copies of the financial
statements of Sublessee for the fiscal year then ended including, without
limitation, a balance sheet of Sublessee as of the close of such fiscal year and
statements of income, shareholders equity and cash flows for such fiscal year.
As soon as available, and in any event within fifty (50) days after the
end of each fiscal quarter of Sublessee, copies of the financial statements of
Sublessee for the fiscal quarter then ended including, without limitation, a
balance sheet of Sublessee as of the end of such quarter and statements of
income, shareholders equity and cash flows for such quarter and for the portion
of the fiscal year ending with such quarter, all in reasonable detail, and
certified by the chief financial officer of Sublessee as being true and correct
and as having been prepared in accordance with generally accepted accounting
principles ("GAAP") and as fairly presenting the assets, liabilities, financial
condition and results of operations of Sublessee.
Each such financial statement shall be accompanied by a certificate signed
by the chief financial officer of Sublessee certifying as to whether Sublessee
is in default under this Sublease, any other agreement with American or its
Affiliates, or any material agreement to which Sublessee is a party or by which
it or any of its properties are bound. Further, each of the annual financial
statements shall be accompanied by a certificate from Xxxxxx Xxxxxxxx & Co.,
Sublessee's independent certified public accountants, or such other "Big Six"
independent certified public accounting firm chosen by Sublessee, stating that
(x) such financial statements have been prepared in accordance with GAAP and
fairly present the financial position, results of operations and cash flows of
Sublessee, (y) the examinations of Sublessee's accounts in connection with such
financial statements have been made in accordance with generally accepted
auditing standards and included such tests of the accounting records and such
other auditing procedures as were considered necessary in the circumstances and
(z) nothing has come to the attention of such accountants in the course of their
audit that caused them to believe there exists any set of circumstances which
would constitute a default by Sublessee under this Sublease, any other agreement
with American or its Affiliates, or any material agreement to which Sublessee is
a party or by which it or any of its properties are bound, (and, with respect to
this Subparagraph (z), such certificate may also state that such accountants
have not expanded the scope of the procedures performed in the course of their
audit in order to deliver such certificate).
If at any time any monies owed by Sublessee under this Sublease are past
due and owing, then upon the request of American, Sublessee shall also furnish
to American, as soon as available on a continuing basis, and in any event within
twenty (20) days after the end of each calendar month, copies of the summary
financial statements of Sublessee as of the end
E-1
of the month most recently completed which are produced for the use of
management of Sublessee, including, without limitation, a balance sheet of
Sublessee as of the end of such month and statements of income, shareholders
equity and cash flows for such month and for the portion of the fiscal year
ending with such month, all in reasonable detail, and certified by the chief
financial officer of Sublessee as being true and correct and as having been
prepared in accordance with GAAP and as fairly presenting the assets,
liabilities, financial condition and results of operations of Sublessee.
Sublessee shall be required to give American immediate notice of any
default, event of default, right of termination, suspension, acceleration,
breach or other similar event (or any event or set of circumstances which with
notice or the lapse of time or both, would constitute any of the foregoing)
under this Sublease or with respect to any material indebtedness of Sublessee.
Sublessee's chief financial officer shall be required to provide a certificate
with each set of annual and quarterly financial statements and, if provided,
monthly financial statements, that (i) Sublessee has not received any notice of
a default, event of default, right of termination, suspension, acceleration,
breach or similar event (or any event or set of circumstances which with notice
or the lapse of time or both, would constitute any of the foregoing) regarding
this Sublease, any other agreement with American of its Affiliates, or any
agreement or instrument involving any material indebtedness of Sublessee, and
(ii) there exists no set of circumstances which would constitute or give rise to
any event or set of circumstances specified in clause (i) above.
E-2
EXHIBIT C
NOTICE OF EXERCISE OF OPTION
_________ __, 199_
American Airlines, Inc.
0000 Xxxx Xxxxxx Xxxx.
XX 0000
Xxxx Xxxxx, XX 00000
Attn: Vice President - Corporate Real Estate
Re: Agreement of Sublease (the "Sublease"), dated as of January 18,
1995, between American Airlines, Inc. ("American") and Midway
Airlines Corporation ("Midway")
Dear Sir or Madam:
Pursuant to Section 1.B. of the Sublease, Midway hereby exercises its
option to sublease the portion of the Option Premises described in Schedule 1
attached hereto and incorporated herein by this reference ("Additional
Premises"). The term of the sublease of the Additional Premises shall commence
effective as of ____________ [at least 120 days after date of this letter].
Midway represents and warrants to American that (a) no Event of Default by
Midway under the Sublease has occurred and is continuing as of the date hereof
and (b) the Additional Premises type and location are in compliance with Exhibit
D of the Sublease. Midway hereby agrees to enter into an amendment which shall
modify Exhibit A of the Sublease to reflect, on an amended and restated basis,
the revised description of the premises subleased by Midway pursuant to the
Sublease.
All capitalized terms used herein and not otherwise defined herein shall
have the meaning ascribed to them in the Sublease.
Sincerely,
MIDWAY AIRLINES CORPORATION
By:____________________________
Name:__________________________
Its:___________________________
cc: American Airlines, Inc.
0000 Xxxx Xxxxxx Xxxx.
XX 0000
Xxxx Xxxxx, XX 00000
Attn: Vice President - Corporate and Fleet Planning
C-1
FIRST AMENDMENT OF AGREEMENT OF SUBLEASE
This First Amendment of Agreement of Sublease (this "Amendment"), dated as
of the date set forth below, is entered into by and between American Airlines,
Inc., a Delaware corporation ("American"), and Midway Airlines Corporation, a
Delaware corporation (the "Sublessee"). Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Sublease referred to below.
WITNESSETH:
WHEREAS, pursuant to that certain Raleigh-Durham Airport Facilities Lease
and Use Agreement dated as of November 1, 1985 between the Raleigh-Durham
Airport Authority, a municipal corporation of the State of North Carolina
("Landlord") and American (together with all amendments, the "Base Lease")
American leases from Landlord certain premises (the "Base Lease Premises") at
Raleigh-Durham Airport ("RDU"); and
WHEREAS, American also leases from Landlord the improvements located on
the real property described in the Base Lease, which improvements are commonly
referred to as Terminal C (the "Improvements"); and
WHEREAS, American has subleased to Sublessee a portion of each of the Base
Lease Premises and the Improvements pursuant to that certain Agreement of
Sublease dated January 18, 1995 (the "Sublease"); and
WHEREAS, Section lA of the Sublease provides that the Initial Premises
will be surveyed to determine that the exact square footage thereof and that the
parties will sign a revised Exhibit A to the Sublease in order to evidence the
parties' agreement as to such square footage; and
WHEREAS, a survey has been prepared that correctly depicts and measures
the square footage of the combined Initial Premises and Phase 2 Premises (the
"Survey") and has been attached to this Amendment as pages X-0, X-0 xxx X-0 xx
Xxxxxxx A attached hereto; and
WHEREAS, Section 1B of the Sublease provides that upon written notice
from Sublessee to American, Sublessee shall sublease and take from American, and
American shall sublease to Sublessee, certain additional space in the Base Lease
Premises and the Fixtures and Miscellaneous Personal Property associated with
such space, such sublease to be on the terms and conditions set forth in the
Sublease; and
WHEREAS, Sublessee has given such notice; and
WHEREAS, such additional space consists of five (5) additional gates, six
(6) additional ticket counter positions and one (1) additional bag makeup pier
as depicted as part of the combined Initial Premises and Phase 2 Premises on
Exhibit A attached hereto and is herein and in the Sublease referred to as the
"Phase 2 Premises"; and
WHEREAS, Section lB of the Sublease further provides that Sublessee and
American will execute an amendment to the Sublease effective as of the Phase 2
Premises Commencement Date which will amend and restate the original Exhibit A
to the Sublease such that the Initial Premises and the Phase 2 Premises are
described therein; and
WHEREAS, Exhibit A attached hereto so describes the combined Initial
Premises and Phase 2 Premises.
NOW, THEREFORE, in consideration of the mutual promises contained herein,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, American and Sublessee hereby agree as follows:
1. Amendment. Exhibit A to the Sublease is hereby amended, restated and
replaced in its entirety by Exhibit A attached to this Amendment.
Effective June 15, 1995 (the "Phase 2 Premises Commencement Date"),
American hereby subleases to Sublessee and Sublessee hereby subleases from
American the Phase 2 Premises and the Fixtures and Miscellaneous Personal
Property associated with the Phase 2 Premises on the terms and conditions
set forth in the Sublease. American and Sublessee acknowledge and agree
that the provisions of Section 1A of the Sublease have been satisfied and
that Exhibit A attached hereto correctly reflects the combined square
footage of the Initial Premises and the Phase 2 Premises.
2. Miscellaneous. This Amendment, together with the Sublease, constitutes the
entire agreement of the parties with respect to its subject matter and
supersedes all prior agreements or understandings, whether written or
oral, if any, concerning such subject matter, including without limitation
any earlier revised Exhibit A's to the Sublease that may have been signed
or initialed by the parties. The Sublease, as specifically modified by
this Amendment, is hereby ratified and shall remain in full force and
effect in accordance with its terms.
WITNESS the signatures of the parties as of this ______ day of __________,
1996.
AMERICAN AIRLINES, INC.
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------
Its: Managing Director
Corporate Real Estate
ATTEST:
/s/ Xxxxxxx X. XxxXxxx
-------------------------------
Corporate Secretary
(Corporate Seal)
2
STATE OF TEXAS
COUNTY OF TARRANT
I, a Notary Public of the County and State aforesaid, do hereby certify
that Xxxxxxx X. XxxXxxx personally came before me this day and acknowledged that
he is Corporate Secretary of American Airlines. Inc., a Delaware corporation,
and that by authority duly given and as the act of the corporation, the
foregoing instrument was signed in its name by its _______________ President,
sealed with its corporate seal and attested by himself as its Corporate
Secretary.
Witness my hand and official stamp or seal, this the _____ day of
____________ 19__.
------------------------------------
Notary Public
My Commission Expires:___________
(Seal)
MIDWAY AIRLINES CORPORATION
By: [ILLEGIBLE]
--------------------------------
Its: President
ATTEST:
X X Xxxxxx
----------------------------
Secretary
(Corporate Seal)
STATE ILLINOIS
COUNTY OF XXXX
I, a Notary Public of the County and State aforesaid, do hereby certify
that Xxxxxxxx X. Xxxxxx personally came before me this day and acknowledged that
he is Corporate Secretary of Midway Airlines Corporation, a Delaware
corporation, and that by authority duly given and as the act of the corporation,
the foregoing instrument was signed in its name by its President, sealed
3
with its corporate seal and attested by himself as its Corporate Secretary.
Witness my hand and official stamp or seal, this the 6th day of February,
1996.
/s/ Xxxx X. Xxxxxxx
------------------------------------
Notary Public
My Commission Expires:_____________
"OFFICIAL SEAL"
XXXX X. XXXXXXX
NOTARY PUBLIC, STATE OF ILLINOIS
(Seal) My Commission Expires Feb. 4, 1997
APPROVED AND CONSENTED TO:
RALEIGH-DURHAM AIRPORT AUTHORITY
By: /s/ Xxxx X. Xxxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxxx
Title: Airport Director
4
EXHIBIT A
COMBINED INITIAL PREMISES AND
PHASE 2 PREMISES AND RENTAL
21,134.64 ft. Holdrooms and Related (12 Gates, numbered 1 through 12) in
the shaded areas generally depicted within the Terminal C Upper Level on page
A-3 attached. American and Sublessee acknowledge that the holding and access
areas for Sublessee's gates within the Demised Premises and the holding and
access areas for adjacent gates operated by American are generally open to
passenger traffic, and the parties agree not to preclude or impede access
between such areas.
1,856 sq. ft. Ticket Counter (16 positions) in the shaded area generally
depicted within the Terminal C Upper Level on page A-2 attached.
10,303.44 sq. ft. Operations/Offices in the shaded areas generally
depicted within the Terminal C Upper Level and Terminal C Lower Level on pages
X-0, X-0 and A4 attached.
8,307 sq. ft. Baggage Makeup in the shaded areas generally depicted within
the Terminal C Lower Level on page A-4 attached.
1995 Annual
Rental Rate Per
Square Foot(1)
--------------
Ticket Counter {***}
---
Holdrooms & Related {***}
---
Operations/Offices {***}
---
Baggage Makeup {***}
---
----------
(1) Rental rates will increase 2% (compounded annually) on January 1 of
each year during Term, commencing January 1, 1996.
A-1
EXHIBIT A-2
American Airlines
Raleigh-Durham International Airport
Terminal C
[GRAPHIC OMITTED]
Level 3
Midway Airlines
Sub-Lease Areas
EXHIBIT A-3
American Airlines
Raleigh-Durham International Airport
Terminal C
[GRAPHIC OMITTED]
Level 2
Midway Airlines
Sub-Lease Areas
EXHIBIT A-4
American Airlines
Raleigh-Durham International Airport
Terminal C
[GRAPHIC OMITTED]
Level 1
Midway Airlines
Sub-Lease Areas
[Letterhead of Midway Airlines]
March 12, 1997
Mr. Xxxx Xxxxxxxx
Xxxxxxx Xxxxxx Airport Authority
X.X. Xxx 00000
XXX Xxxxxxx, Xxxxx Xxxxxxxx 00000
Re: Second Amendment to Agreement of Sublease
Dear Xx. Xxxxxxxx:
I apologize for our failure to submit the "Second Amendment" to you for
consent by the Airport Authority at the time of its execution on April 25, 1996.
I have attached a copy of that amendment to this letter and hereby request the
Airport Authority's consent to such Second Amendment. As you review the attached
Amendment to AA Agreements, you will see that the amendment was not only an
amendment of the Sublease but also of four other agreements which exist between
American Airlines and Midway Airlines Corporation. Thus, we overlooked the
Airport Authority's consent to one of the agreements referenced therein (i.e.,
the Agreement of Sublease).
Again, I apologize for this oversight. Please contact me should you have
any questions.
Very truly yours,
MIDWAY AIRLINES CORPORATION
/s/ Xxxxxxxx X. Xxxxxx
Xxxxxxxx X. Xxxxxx
Senior Vice President and General Counsel
JSW/tmg
Enclosures
cc: Xxxxx Xxxxxxxx (w/o end.)
CONSENT
Amendment to AA Agreement
identified as item (i) in the attached
Amendment to AA Agreements dated as of April 25, 1996
By: /s/ Xxxxx X. Xxxxx, Xx.
---------------------------
Name: Xxxxx X. Xxxxx, Xx.
Title: Chairman
AMENDMENT TO AA AGREEMENTS
This Amendment to AA Agreements (the "Amendment"), dated as of April 25,
1996, by and between American Airlines, Inc. ("American"), Airline Management
Services, Inc., The SABRE Group, Inc. and Midway Airlines Corporation
("Midway"). Capitalized terms used herein and not defined herein shall have the
meanings assigned to such terms in the Deferral Agreement referred to below.
WHEREAS, the parties have entered into the following agreements (as such
agreements may be amended from time to time, the AA Agreements ):
(i) Agreement of Sublease between American and Midway, dated as of
January 18, 1995;
(ii) AAdvantage Participating Carrier Agreement between American and
Midway, dated as of January 18, 1995;
(iii) Aircraft Maintenance Agreement between American and Midway, dated as
of November 1, 1993;
(iv) SABRE Multihost Agreement executed by SABRE Decision Technologies, a
division of The SABRE Group, Inc., on March 20,1995 and executed by
Midway on February 24, 1995; and
(v) Services and Licenses Agreement between Airline Management Services,
Inc. and Midway dated December 7, 1995;
WHEREAS, Midway and American have entered into the {***} dated the date
hereof;
WHEREAS, pursuant to the {***}, dated as of the date hereof, and is
entering into a {***}, dated as of the date hereof, with American; and
WHEREAS, pursuant to the {***} Midway and American are to
enter into certain amendments to the M Agreements.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Midway and American hereby amend the AA Agreements as follows:
1. Amendments to AA Agreements
1.1 Definitions. The definitions of "American," "Midway," "Affiliates,"
{***} set forth or referred to above are hereby added to each AA
Agreement.
1.2 Cross Defaults Effective as of the date hereof, each of the American
Agreements is amended by adding the following provision:
"Notwithstanding anything to the contrary herein, if, and so
long as, an Event of Default (as defined therein,
respectively) exists under the {***} shall not have been paid
in full, then American, or its Affiliates, as applicable, may
immediately terminate this Agreement without prior written
notice to Midway: provided, that upon such termination, all
monies owed to American, or its Affiliates, as applicable,
hereunder through the date of termination shall be immediately
due and payable to American, or its Affiliates, as applicable,
by Midway; and further provided the defaults described in
Schedule 3.a to the {***} shall not be deemed an
event of default, Event of Default, default or Default
(howsoever defined) or breach of this agreement so long as (i)
no Event of Default exists under the {***} and (ii) the
parties referenced in Schedule 3.a take no material adverse
action against Midway."
1.3. Change of Control. Effective as of the date hereof, each of the
American Agreements, except for the AAdvantage Participating Carrier
Agreement dated as of January 18,1995, is amended by adding the
following provision:
{***}
2. Miscellaneous
2.1 Except as set forth herein, all terms and provisions contained in
the AA Agreements shall remain in full force and effect. Nothing
contained in this Amendment shall be deemed a waiver by American or
its Affiliates of any amounts due and owing under the AA Agreements
or of any rights of American or its Affiliates, as applicable,
existing on the date hereof under the AA Agreements.
2.2 This Amendment is being delivered in the State of Texas and shall in
all respects be governed by, and construed in accordance with, the
laws of the State of Texas, including all matters of construction,
validity and performance.
2.3 This Amendment may be executed in several counterparts, each of
which shall be deemed an original, and all such counterparts shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused Amendment to be duly executed
and delivered as of the date and year first above written.
MIDWAY AIRLINES CORPORATION AMERICAN AIRLINES, INC.
By: /s/ Xxxx Xxxxxxxxx By: [ILLEGIBLE]
------------------------- --------------------------------
Name: Xxxx Xxxxxxxxx Name:
-------------------------------
Title: President Title:
------------------------------
AIRLINE MANAGEMENT SERVICES, INC.
By: /s/ [ILLEGIBLE]
--------------------------------
Name:
-------------------------------
Title:
------------------------------
THE SABRE GROUP, INC.
By:
--------------------------------
Name:
-------------------------------
Title:
------------------------------
same instrument
IN WITNESS WHEREOF, the parties have caused Amendment to be duly executed
and delivered as of the date and year first above written.
MIDWAY AIRLINES CORPORATION AMERICAN AIRLINES, INC.
By: By:
------------------------- --------------------------------
Name: Name:
------------------------- -------------------------------
Title: Title:
------------------------- ------------------------------
AIRLINE MANAGEMENT SERVICES, INC.
By:
--------------------------------
Name:
-------------------------------
Title:
------------------------------
THE SABRE GROUP, INC.
By: /s/ [ILLEGIBLE]
--------------------------------
Name:
-------------------------------
Title:
------------------------------
EXHIBIT D
THIRD AMENDMENT TO AGREEMENT OF SUBLEASE
This Third Amendment to Agreement of Sublease (the "Third Amendment"),
dated as of February 10, 1997, by and between American Airlines, Inc.
("American") and Midway Airlines Corporation ("Sublessee").
WHEREAS, American and Sublessee have entered into an Agreement of Sublease
(the "Sublease") dated as of the 18th day of January, 1995, amended pursuant to
a First Amendment of Agreement of Sublease dated on or about February 6, 1996
(the "First Amendment") and Amendment to AA Agreements dated April 25, 1996 (the
"Second Amendment) (for ease in drafting the Sublease, First Amendment and
Second Amendment are collectively referred to herein as the Sublease), pursuant
to which American has subleased a portion of the Base Lease Premises and the
Improvements located thereon; and
WHEREAS, concurrently herewith, American and Sublessee are entering into a
certain Letter Agreement providing the terms and conditions under which American
has agreed to participate in a financial restructuring of Sublessee; and
WHEREAS, in connection with such restructuring, Sublessee has requested
and American has agreed to make certain amendments to the Sublease, subject to
the terms and conditions set forth in this Third Amendment.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, American and Sublessee hereby agree to amend the Sublease as
follows:
1. Section 1.D. shall be amended by changing the reference to "August 31, 1997"
in the last sentence of the first paragraph to read "August 31, 1999".
2. Section 1.D. shall further be amended by adding the following to the end
thereof:
"From the effective date of this Third Amendment until May 1, 1997,
Sublessee shall have the option to sublease from American a portion of the
additional space in the Base Lease Premises (including the Improvements
located therein), other than ticket counters and gates, identified by
American to be surplus, unused space (the "Surplus Space"). American shall
identify such Surplus Space to Sublessee by written notice on or before
March 15, 1997. The Rental Rate for any Surplus Space subleased by
Sublessee pursuant to this paragraph shall be $5.00 per square foot per
annum, subject to the yearly increases of 2%
(compounded annually) on January 1 of each year during the Term, Sublessee
may exercise the option for Surplus Space by delivering to American, at
any time prior to the termination date of this option, an unconditional
written notice of exercise ("Notice") in substantially the form of Exhibit
C attached to the Sublease. Any sublease of Surplus Space shall be subject
to the terms and conditions set forth in the Sublease, unless terminated
by either party upon six (6) months prior written notice to the other
party. If Sublessee should sublease Surplus Space under this paragraph,
Sublessee and American will execute an amendment to the Sublease effective
as of the Additional Premises Commencement Date specified in the Notice
which will amend and restate Exhibit A to the Sublease. If there shall
have occurred and be continuing on the date of the Notice or on the
Additional Premises Commencement Date an Event of Default by Sublessee
under the Sublease, American may, at is option, refuse to sublease to
Sublessee any Surplus Space until and unless the breach giving rise to
such Event of Default has been cured in accordance with the Sublease.
3. Section 5.A.(i) shall be amended by adding the following to the end thereof:
"Commencing with the rental payment due on March 1,1997, the rent for the
Demised Premises payable or common use charges, at American's sole
discretion, hereunder shall be reduced by {***} per month (the
"Rental Discount") for the remainder of the term of this Sublease:
provided, however, the Rental Discount shall immediately end if (i)
Sublessee terminates its participation in American's frequent flier
mileage program (currently, the "AAdvantage Program"), (ii) American
terminates the AAdvantage Participating Carrier Agreement (the "AAdvantage
Agreement") dated January 18, 1995, as amended, between American and
Sublessee pursuant to Section 11(a)(ii) or Section 11(e) thereof, or (iii)
Sublessee fails to renew its participation in the AAdvantage Program upon
the expiration of the AAdvantage Agreement after American has offered, in
writing, the renewal of Sublessee's participation in the AAdvantage
Program on substantially the same terms as those included in the
AAdvantage Agreement, subject to an increase in the rates payable by
Sublessee under Section 8(a)(ii) thereof not to exceed the percentage
change between (a) the average of American's (including AMR Eagle)
passenger revenue per ASM (RASM) and operating cost per ASM (CASM) for the
year 1996 and (b) the average of American's (including AMR Eagle) RASM and
CASM for the 12 months immediately preceding the expiration of the
AAdvantage Agreement (or the most recent 12 months for which data is
available). Nothing herein shall, however, be construed to impose any
obligation on American to renew Sublessee's current AAdvantage Agreement
upon substantially the same terms or
2
otherwise, or to offer a renewal rate for Sublessee's AAdvantage Agreement
as described above.
Should Midway exercise its Option to sublease the Option Premises as
described in Section 1.D. above, the rent for such Option Premises shall
be {***} of the rates established pursuant to this
Section 5.A.
4. Section 6 shall be amended by deleting everything after the end of the
first sentence thereof.
5. Section 38 shall be amended in its entirety to read as follows:
"On or before the fifteenth day following each calendar quarter during the
Term of the Sublease (i.e., January 15, April 15, July 15 or October 15,
as applicable) and on the first such date following the expiration or
earlier termination hereof, American shall provide Sublessee with a report
showing the amount spent by American pursuant to Section 5.A.(ii)(b) of
this Sublease or received by American pursuant to Article 15 of the Base
Lease, in each case shown on a monthly basis during the most recently
concluded calendar quarter, or portion thereof (along with such supporting
documents as Sublessee shall reasonably request from time to time
hereunder) and also showing American's calculations on a monthly basis, of
the amounts payable by or owing to Sublessee pursuant to Section
5.A.(ii)(b) and Section 5.D. of this Sublease. If such report shows that
an adjustment to any amount paid by or owed to Sublessee is proper then
the party shown to be owing amounts (as a reimbursement or otherwise) to
the other party shall promptly make such payment to the other within five
(5) business days following receipt of written notice of such adjustment.
American shall give Sublessee and its agents access during normal business
hours to documents and/or personnel as may be reasonably necessary for
Sublessee to review the report submitted by American to Sublessee pursuant
to this Section 38. The terms of this Section 38 shall survive the
termination of the Sublease for a period of six (6) months.
6. This Third Amendment, together with the Sublease, First Amendment and Second
Amendment, constitutes the entire agreement of the parties with respect to its
subject matter and supersedes all prior agreements or understandings, whether
written or oral, if any, concerning such subject matter. All defined terms used
herein without definition shall have the meanings set forth in the Sublease. As
modified hereby, the Sublease is ratified and confirmed and shall remain in full
force and effect.
3
IN WITNESS WHEREOF, the parties have caused this Third Amendment to be duly
executed and delivered as of the date and year first above written.
MIDWAY AIRLINES CORPORATION AMERICAN AIRLINES, INC.
By: X X Xxxxxx By: /s/ Xxxxxx X. Xxxxx
------------------------- -------------------------------------
Xxxxxxxx X. Xxxxxx Xxxxxx X. Xxxxx
Managing Director
Its: Senior vice President Airline Management Services, Inc.
Agreed to by Landlord this 20th day of March, 1997.
RALEIGH-DURHAM AIRPORT AUTHORITY
By: Xxxxx X. Xxxxx, Xx.
-----------------------------
Its: Chairman
4
AWAITING FULLY EXECUTED
ORIGINAL VERSION OF FOURTH
AMENDMENT TO AGREEMENT OF SUBLEASE
FOURTH AMENDMENT OF AGREEMENT OF SUBLEASE
This Fourth Amendment of Agreement of Sublease ("Fourth Agreement"), dated
as of the date set forth below, is entered into by and between American
Airlines, Inc., a Delaware corporation ("American") and Midway Airlines
Corporation, a Delaware corporation (the "Sublessee"). Capitalized terms used
herein and not otherwise defined herein shall have the meanings assigned to such
terms in the Sublease referred to below.
WITNESSETH:
WHEREAS, pursuant to that certain Raleigh-Durham Airport Facilities Lease
and Use Agreement dated as of November 1, 1985, between the Raleigh-Durham
Airport Authority, a municipal corporation of the State of North Carolina
("Landlord") and American (together with all amendments, the "Base Lease"),
American leases from Landlord certain premises (the "Base Lease Premises") at
Raleigh-Durham Airport: and
WHEREAS, American also leases from Landlord the improvements located on
the real property described in the Base Lease, which improvements are commonly
referred to as Terminal C (the "Improvements"); and
WHEREAS, American has subleased to Sublessee a portion of each of the Base
Lease Premises and the Improvements pursuant to that certain Agreement of
Sublease dated January 18, 1995 (the "Sublease"), amended pursuant to a First
Amendment of Agreement of Sublease dated on or about February 6, 1996 (the
"First Amendment") and amendment to American Airlines' agreements dated April
25, 1996 (the "Second Amendment") and a Third Amendment to Agreement of Sublease
dated February 10,1997 (the "Third Amendment"); and
WHEREAS, Section 2 of the Third Amendment to Agreement of Sublease
provides Sublessee the option to sublease certain Surplus Space at a rental rate
of $5.00 per square foot per annum, subject to the yearly increases of 2%
(compounded annually) on January 1 of each year during the term; and
WHEREAS, Sublessee has exercised such option; and
WHEREAS, Exhibit 4-1 attached hereto so describes the Surplus Space added
to the premises.
NOW, THEREFORE, in consideration to the mutual promises contained herein,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, American and Sublessee hereby agree as follows:
1. Leasing of Surplus Space. Effective May 1, 1997, American hereby subleases
to Sublessee and Sublessee hereby subleases from American as part of the
Demised Premises the office spaces identified as A8, A11, C8 and C11 (the
"Surplus Space") in Exhibit 4-1 hereto. The square footage of such Surplus
Space is set forth in Exhibit 4-1. Rental for such Surplus Space will
begin to accrue on May 1, 1997 with respect to office space C-11, on June
1, 1997 with respect to office spaces A8 and A11, and on August 1, 1997
with respect to office space C8. The Rental rate for such
-1-
Surplus Space shall be $5.00 per square foot per annum, subject to yearly
increases of 2% (compounded annually) on January 1 of each year during the
term.
2. Term. The subleasing of Surplus Space hereunder may be terminated any time
by either party upon not less than six (6) months prior notice to the
other party.
3. Miscellaneous. This Fourth Amendment, together with the Sublease,
constitutes the entire agreement of the parties with respect to its
subject matter and supersedes all prior agreements or understandings,
whether written or oral, if any, concerning such subject matter. The
Sublease, as specifically modified by this Amendment, is hereby ratified
and shall remain in full force and effect in accordance with its terms.
WITNESS the signatures of the parties as of this _____ day of
____________, 1997.
By:
-------------------------------
Xxxx X. Xxxxxxx
Managing Director
Its: Corporate Real Estate
ATTEST:
------------------------------
Xxxxxxx X. XxxXxxx
Corporate Secretary
(Corporate Seal)
STATE OF TEXAS
COUNTY OF TARRANT
I, a Notary Public of the County and State aforesaid, do hereby certify
that Xxxxxxx X. XxxXxxx personally came before me this day and acknowledged that
he is Corporate Secretary of American Airlines, Inc., a Delaware corporation,
and that by authority duly given and as the act of the corporation, the
foregoing instrument was signed in its name by its _____________ President,
sealed with its corporate seal and attested by himself as its Corporate
Secretary.
Witness my hand and official stamp or seal, this the ______ day of
__________, 1997.
------------------------------
Notary Public
My Commission Expires:
------------
(Seal)
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MIDWAY AIRLINES CORPORATION
By: /s/ X X Xxxxxx
-----------------------------
Its: Senior Vice President
General Counsel
ATTEST:
/s/ Xxxx X. Xxxxxxx
---------------------------
Asst. Secretary
(Corporate Seal) XXXXXXXX X. XXXXXX
SENIOR VICE PRESIDENT
GENERAL COUNSEL
STATE OF NORTH CAROLINA
COUNTY OF
I, a Notary Public of theCounty and State aforesaid, do hereby certify
that Xxxx Xxxxxxx personally came before me this day and acknowledged that (she)
is Assistant Corporate Secretary of Midway Airlines Corporation, a Delaware
corporation, and that by authority duly given and as the act of the corporation,
the foregoing instrument was signed in its name by its Senior Vice President,
sealed with its corporate seal and attested by her as its Assistant Corporate
Secretary.
Witness my hand and official stamp or seal, this the 29th day of July,
1997.
/s/ Xxxxxxx Xxxxx
------------------------------
Notary Public
My Commission Expires: 10/22/99
(Seal)
APPROVED and CONSENTED TO:
RALEIGH-DURHAM AIRPORT AUTHORITY
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
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EXHIBIT 4-1
1 OF 1
American Airlines
Raleigh-Durham International airport
[GRAPHIC OMITTED]
Level 1
Midway Airlines
e 2/Sub-Lease Areas
[Letterhead of American Airlines]
March 2, 1995
VIA FEDERAL EXPRESS
Xxxxxxxx X. Xxxxxx, Esq.
Xxxxxxxxx & Xxxxxxxxxxx, P.C.
Two Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx. XX 00000
Re: RDU Sublease - Midway
Dear Xxx:
I have enclosed one copy of the signed Airport Authority's consent that I
received today. Please call if you have any questions.
Sincerely,
/s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
/jr
Enclosure
AGREEMENT AND CONSENT TO SUBLEASE
AMERICAN AIRLINES/MIDWAY AIRLINES
TERMINAL C RALEIGH-DURHAM AIRPORT
THIS AGREEMENT AND CONSENT ("Agreement"), dated the 28th day of February,
1995, by and between AMERICAN AIRLINES, INC., a Delaware corporation
("Sublessor"); MIDWAY AIRLINES CORPORATION, a Delaware corporation
("Sublessee"); and RALEIGH-DURHAM AIRPORT AUTHORITY (the "Authority"):
WITNESSETH
WHEREAS, the Authority entered into a Facilities Lease and Use Agreement
effective June 15, 1987, including subsequent amendments thereto, (which items
are collectively referred to hereinafter as the "Lease") with Sublessor for the
occupancy and use of space at Raleigh-Durham International Airport ("RDU"),
including the occupancy and use of the facilities identified as "Terminal C", as
more particularly described therein;
WHEREAS, Sublessor has entered into a Sublease Agreement, a copy of which
is attached hereto, dated January 18, 1995 (the "Sublease") with the Sublessee
to sublease to Sublessee a portion of its leasehold interest in Terminal C and
its related leasehold facilities as more particularly described in the Sublease;
WHEREAS, the Sublessor and Sublessee have requested the Authority's
consent to the Sublease, which consent is required by the terms of the Lease and
the amendments thereto, without in any way reducing, increasing, expanding,
releasing, discharging, or modifying Sublessor's rights, duties and obligations
to the Authority, or the Authority's rights, duties and obligations to Sublessor
under the terms of the Lease or under the terms of any and all other existing
agreements between Sublessor and the Authority;
WHEREAS, the Authority has agreed to consent to the Sublease conditioned
upon the agreements and undertakings set forth hereinbelow.
NOW, THEREFORE, in consideration of these premises, the mutual promises,
agreements, covenants, conditions, and provisions contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. SUBLESSOR'S AGREEMENT.
Sublessor hereby agrees and acknowledges that it is and remains fully liable to
the Authority for all of its duties and obligations as Lessee under the Lease,
whether prior or subsequent to the execution of the Sublease and this Agreement,
and that the execution of the Sublease and of this Agreement will not reduce,
increase, expand, release, discharge, or otherwise modify Sublessor's rights or
its duties and obligations to the Authority under the Lease or under any other
agreement now existing between Sublessor and the Authority.
2. SUBLESSEE'S AGREEMENT.
A. Except as expressly provided in this Agreement, Sublessee hereby agrees
and acknowledges that it shall be bound and limited by the terms of the Lease as
if Sublessee were the Lessee thereunder (without Sublessee's assumption of any
of Lessee's obligations thereunder) and that neither this Agreement nor the
Sublease shall be construed to reduce, release, discharge, amend or otherwise
modify the Lease as it applies to Sublessor and to Sublessee; and
B. Sublessee expressly acknowledges and agrees that, to the extent of its
actions and activities and the actions and activities of its agents, employees,
contractors, and invitees, the indemnification provisions of Article 23 of the
Lease shall be applicable to it as fully as if the Lease were entered into
between the Authority and Sublessee.
3. THE AUTHORITY'S AGREEMENT.
The Authority hereby consents to the Sublease between Sublessor and Sublessee
conditioned upon the agreements and acknowledgements set forth herein. This
consent by the Authority satisfies the requirement for consent as set forth in
Paragraph 30.1 of the Lease.
4. THE LEASE.
A. The Authority and Sublessor covenant and agree that the Lease, as amended,
remains in full force and effect as of the date of this Agreement and all of the
rights, duties and obligations of the Authority and the Sublessor thereunder
shall survive the execution of this Agreement; and
B. Sublessee, Sublessor, and the Authority expressly agree and acknowledge
that the inclusion of the "Phase 2 Premises" and the Additional Premises" in the
Sublease and any other restriction therein on further subleasing by Sublessor to
other air carriers does not amend the agreement between the Authority and
Sublessor to make available excess, unused gate capacity in Terminal C at RDU
for the use of additional air carriers as set forth in section 24.2 of the
Lease; provided, however, that any agreement between Sublessor and any such
additional air carriers shall be subject to the right of Sublessor, and any
assignee or sublessee (including Sublessee) of Sublessor which has the right to
occupy and use such gates in Terminal C, to recover the possession and use of
all or a portion of such gates, previously deemed to be excess, unused gates,
upon such terms and conditions as may be agreed to between Sublessor and such
additional air carriers.
5. OPERATING LETTER OF AGREEMENT.
Within 10 days of the execution of this Agreement, the Authority and Sublessee
will enter into an Operating Letter of Agreement regarding such matters as
Landing Fee charges, security for payment, scheduling, and insurance
requirements. Sublessee's failure to timely execute and return the Operating
Letter of Agreement to the Authority will terminate this Agreement.
Notwithstanding the Authority's consent to the Sublease, Sublessee's failure to
operate in compliance with the Operating Letter of Agreement, this Agreement,
the Lease, and any and all
- 2 -
other applicable agreements that it may hereafter enter into with the Authority,
may result in the termination of Sublessee's right to operate as an air carrier
at RDU.
6. CONSTRUCTION OF AGREEMENT.
This Agreement shall inure to the benefit of the parties hereto and their
successors and assigns, and shall be construed and enforced exclusively under
the laws and in the courts of the State of North Carolina.
WHEREFORE, the parties have executed this Agreement and Consent under seal
to be effective only upon the duly authorized execution hereof by each of the
parties hereto.
AMERICAN AIRLINES, INC. MIDWAY AIRLINES CORPORATION
By: /s/ [ILLEGIBLE] By: /s/ X X Xxxxxx
---------------------- --------------------------------
Its: Its: Vice President
ATTEST: /s/ [ILLEGIBLE] ATTEST: /s/ [ILLEGIBLE]
------------------ ----------------------------
[Corporate Seal] [Corporate Seal]
RALEIGH-DURHAM AIRPORT AUTHORITY
By: /s/ [ILLEGIBLE] ATTEST: /s/ Xxxxxxxx X. Xxxxxx
---------------------- ----------------------------
Its Chairman [Corporate Seal]
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