LEASE
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WHEREAS, OUTAGAMIE COUNTY, a Wisconsin Municipal corporation and
KIMBERLY-CLARK CORPORATION, a Delaware corporation, have heretofore entered
into a "Lease With Option To Renew" dated January 25, 1968, together with
certain subsequent additions, which instrument is hereby assigned (to which
assignment Outagamie County hereby consents) by Kimberly-Clark Corporation
to its wholly-owned subsidiary, K-C AVIATION INC., a Delaware corporation;
and
WHEREAS, the said parties now desire to modify, amend and reconstruct the
said Lease with such amendments and modifications that it becomes desirable
to enter into a totally new agreement;
NOW, THEREFORE, it is agreed by and between the parties hereto as follows:
1. PARTIES. Outagamie County shall be hereafter referred to as LESSOR and
K-C Aviation Inc. will be hereafter referred to as LESSEE.
2. PREMISES. The LESSOR does hereby and by these presents does lease, let
and demise unto the LESSEE and the LESSEE does hereby take and rent
from the LESSOR the land situated in the State of Wisconsin, County of
Outagamie, Town of Greenville, described on Exhibit "A", which is
attached to and made a part of this Lease.
[Illegible] being a part of the Outagamie County Airport, and
hereafter referred to as the "Premises", upon the terms and conditions
hereinafter set forth. LESSEE shall have the exclusive use of and the
right at any time to enclose by fencing, the apron and supporting
facilities, a "fuel farm" consisting of buried or surface tanks for
not less than 20,000 gallons of aviation fuels, 50 gallons of oil and
lubricants, and 10,000 gallons of heating fuels together with power
lines, pumping, venting and other necessary or desirable facilities as
LESSEE may reasonably require, and access roads for heavy transport
between the LESSEE Improvements (as hereinafter defined) and fuel farm
areas and public access roads.
3. TERM. The initial term of this Lease shall commence upon the
cancellation of the heretofore referred to "Lease With Option To
Renew" dated January 25, 1968, which said cancellation shall occur at
such time as the completion of transfer of ownership of the present
improvements on the Premises from the LESSOR to the LESSEE. This
initial term shall end on the 31st day of March, 1984. LESSEE is
granted an option to renew this Lease for nine (9) additional
consecutive five (5) year terms upon written notice to LESSOR sent at
least thirty (30) days prior to the expiration of the initial Lease
term or any renewal term, on the same terms and conditions as herein
stated, except as to the amount of rent.
4. Rents. LESSEE shall pay as rent under this Lease, for the initial
term, in equal monthly installments due and payable on the first
business day of each and every month, annual rental of $.05 per square
foot for the total Premises heretofore described, being 254,720 square
feet. If LESSEE shall exercise its option to renew this Lease for the
first renewal period commencing April 1, 1984 and ending March 31,
1989, the annual rent to be paid by LESSEE, upon the same terms and
conditions, shall be the sum of $.08 per square foot. The annual
rental, per square foot, of subsequent renewal periods shall be
determined at the commencement of each five year renewal period based
on the amount of the rent for the preceding term, adjusted at the rate
of one quarter (1/4) of the increase or decrease of the average of the
consumer price index (hereafter referred to as "CPI") as published by
the United States Department of Labor, Bureau of Labor Statistics for
the calendar year preceding the date of renewal as compared to the
index used for the calculation of any rent adjustment for the prior
renewal term. As example and explanation, the rent for the second
renewal term (that commencing April 1, 1989) would be computed by
using the average CPI for calendar year 1983 as the base index
compared with the average CPI for calendar year 1988, with one quarter
(1/4) of the difference of the two average CPIs being used as the
percentage to adjust the preceding annual rental amount ($.08 per
square foot). The third renewal term shall use the average CPI for
calendar year 1988 as the base index to be compared with the average
CPI for calendar year 1993; the rent for the fourth and succeeding
renewal terms calculated in the same fashion.
5. LESSOR'S CONSTRUCTION OBLIGATION AND LESSEE'S IMPROVEMENTS. In
entering into this new Lease, it is the understanding of the parties
hereto that the LESSEE will construct an addition (the plans for which
have been reviewed and approved by LESSOR) to the presently existing
Building improvements on the Premises (the existing Building and the
addition shall be referred to herein as the "Lessee Improvements"),
the said present existing improvements to be purchased by the LESSEE
from the LESSOR for the sum of $300,000. The purchase of the existing
Building improvements by LESSEE from LESSOR shall be closed within
thirty (30) days of the date of this Lease and shall take place at the
site specified by LESSOR in Outagamie County, Wisconsin, unless the
parties agree otherwise. LESSOR, at such closing after receipt of
payment from LESSEE, shall deliver a Bill of Sale or other similar
documents satisfactory in form to LESSEE'S counsel, transferring the
present Building improvements to LESSEE free and clear of all liens
and encumbrances, except those created by LESSEE. Upon transfer of the
present Building improvements and after construction of the addition
contemplated by LESSEE, title to these LESSEE Improvements shall be in
LESSEE until the expiration or termination of this Lease after which
title shall be transferred to LESSOR pursuant to the Purchase
Obligation provided for in paragraph 18 hereof. LESSOR agrees that it
will promptly construct, at its expense, necessary ramp facilities, as
an addition to the presently existing ramp, so as to give access to,
and to make usable and serviceable, the addition to the present
Building improvements, which said addition is to be constructed by the
LESSEE.
6. INSURANCE AND TAXES. LESSEE shall pay all premiums for insurance on
the LESSEE Improvements on the Premises, insuring the same as it
determines. Taxes assessed against the LESSEE Improvements shall be
LESSEE'S responsibility when the initial Lease term begins.
7. LIABILITY INSURANCE. The LESSEE shall pay the premiums for and keep in
effect comprehensive general liability insurance with limits of at
least $500,000/$1,000,000 for bodily injury, $500,000/$1,000,000 for
property damage, and single limit of at least $20,000,000 for
liability arising out of repair and servicing of aircraft, insuring
LESSOR as well as LESSEE against claims or liability for damages on
account of the deficiency or claimed deficiency of any of the LESSEE
Improvements on the Premises during the terms hereof.
8. REPAIRS, MAINTENANCE, COMPLIANCE WITH SAFETY RULES, ETC. LESSEE agrees
to be responsible for all repairs, maintenance, replacements and
general upkeep, whether structural or non-structural and whether of
exterior or interior portions, to the LESSEE Improvements, and whether
or not the same are required for underground utilities and
installations except that at the time of closing of the transfer of
ownership of the present Building on the Premises from the LESSOR to
the LESSEE, items of repair and maintenance which are the
responsibility of the LESSOR under the original "Lease With Option To
Renew" shall be completed at the expense of the LESSOR. Lessor will at
all times keep all sidewalks, steps and exits (except those within the
immediate vicinity of the LESSEE Improvements), aprons, taxiways,
access roads and all other Outagamie Airport facilities in good,
clean, safe, secure, sanitary condition and repair and will conform to
all ordinances, laws, rules and regulations of any public agency
having dominion or jurisdiction thereof respecting all matters
including safety and sanitation, snow removal and street oiling
(including but not limited to Federal Aviation Administration
requirements), and will save the LESSEE free and harmless from any
personal or other liability whether or not occasioned by the
negligence of the LESSOR or any agent or any person contracting with
said LESSOR for the maintenance and care of such areas, or out of any
accident or occurrence causing injury or claimed injury of any person
whomsoever or property whatsoever due directly or indirectly to the
maintenance and repair of such areas, including the cost of defending
such claim. Snow removal shall be accomplished so as to comply with or
exceed air carrier requirements for aircraft departures and arrivals
as the same may be in force from time to time. LESSOR shall also be
responsible for, throughout the term of this Lease and any renewals
thereof, lawn maintenance and similar items which are not connected
with the maintenance of the LESSEE Improvements upon the Premises.
9. HEAT, LIGHTS AND WATER. LESSEE shall furnish and pay for all utilities
including heat, lights, water and gas required or used by it upon said
Premises.
10. USE OF PREMISES. LESSEE covenants and agrees that it will not use the
Premises or the LESSEE Improvements thereon, during the term of this
Lease for any purpose other than for aviation purposes or for any
purpose which is lawful under the laws of the United States, the State
of Wisconsin or the ordinances of Outagamie County or any laws, rules
or regulations of any proper agency of any government having dominion
thereover; otherwise, there shall be no limitation whatsoever on
LESSEE'S use of the Premises or the LESSEE Improvements. In the event
LESSEE shall, pursuant to 14 CFR 121.1 (a)(1), (2), and (3), commence
any commercial aeronautical operations carrying passengers with
established schedules on the Premises, LESSEE shall then pay all
landing or user fees required of and collected from other such
commercial operators and abide by all rules and regulations pertaining
to commercial operators on the airport. LESSEE, its agents and
employees will not discriminate against any person or class of persons
by reason of race, color, creed, sex or national origin in providing
any services or in the use of any of its facilities provided for the
public in any manner prohibited by 49 CFR Parts 21 and 23 of the
Federal Aviation Regulations.
11. ASSIGNMENT. LESSEE may assign or sublet this Lease to its parent
corporation, Kimberly-Clark Corporation, or any of the subsidiaries of
Kimberly-Clark Corporation now existing or hereafter incorporated, but
otherwise shall not assign this Lease or any part thereof without
prior written consent of the LESSOR, except to another person, form or
corporation acquiring all or a substantial part of LESSEE'S assets
used for aviation purposes. LESSOR shall not unreasonably withhold its
consent.
12. FORFEITURE ON DEFAULT. If any default shall be made by the LESSEE in
any payment of rent, or if LESSEE shall fail to keep and perform any
other covenant, condition or agreement herein provided on the part of
the said LESSEE to be performed and such default shall exist without
being fully remedied for a period of 30 days after LESSOR has given
LESSEE written notice thereof, then it shall be lawful without further
notice, to declare the term of this Lease ended and LESSOR shall have
the right to re-enter and reposess the Premises, either with or
without process of law, and LESSEE does hereby waive, in such event,
any demand for possession of the demised Premises, and LESSEE
covenants and agrees to surrender the Premises to LESSOR or the agents
or attorneys of LESSOR, immediately upon the termination of this
Lease, at the election of LESSOR.
13. FORFEITURE ON INSOLVENCY. Should LESSEE become bankrupt or make an
assignment for the benefit of creditors either voluntary or
involuntary, or be placed in receivership either voluntary or
involuntary, the term of this Lease, and all the provisions hereof
shall terminate forthwith upon such event occurring, without notice.
14. QUIET ENJOYMENT. LESSOR covenants that LESSEE, its successors and
assigns, on paying the rent in accordance with this Lease and
performing the other covenants of this Lease to be performed by
LESSEE, shall and may have, hold, occupy and enjoy peacefully and
quietly the Premises for the term of this Lease and any renewal term
without hindrance or molestation by anyone whomsoever. If LESSOR'S
title shall prove to be defective in any respect, LESSEE may either
cure the defect at LESSOR'S expense or forthwith cancel this Lease
without liability, at its option.
15. SECURITY, SAFETY AND FACILITIES. It is the intention of both LESSOR
and LESSEE that the Premises may be freely, effectively and safely
used by LESSEE for its aircraft operations; to that end, LESSOR shall
provide or cause to be provided adequate facilities therefor,
including but not limited to the following:
a. Adequate police and security protection at least equal to
generally prevailing standards;
b. Adequate fire protection with full water pressure for the present
paint and lubrication rooms in the existing Building Improvements
sufficient to obtain the lowest fire insurance rates available
for such facilities, and a crash [Illegible]
c. Complete air navigation and control radio facilities.
16. REMEDIES AND RIGHTS CUMULATIVE. The specific rights and remedies of
the parties under this Lease are cumulative, and not intended to be
exclusive of or in derogation of any other rights or remedies
available in the event of breach or threatened breach, all of which
are hereby specifically preserved. The failure to require the strict
performance of any covenant of this Lease or to exercise any option
under this Lease, in any one or more instance, shall not be construed
as a waiver or relinquishment for the future of the same or any other
covenant or option.
17. CAPTIONS. The captions in this Lease are for the purposes of
convenience and reference only and are not to be deemed or construed
as a part of this Lease nor supplemental or amendatory hereto.
18. PURCHASE OBLIGATION. Commencing with the first renewal period of this
Lease on April 1, 1984, if such renewal option shall have been
exercised by the LESSEE, LESSOR shall purchase any and all LESSEE
Improvements on the Premises at any time after the end of the initial
term, including those present improvements whose ownership is being
transferred from the LESSOR to the LESSEE pursuant to paragraph 5
hereof, upon the occurrence of any one or more of the following
conditions:
a. Upon either the unremedied default by LESSEE of any provision of
this agreement and the retaking of the Premises by LESSOR, in the
event LESSEE fails to renew this Lease for the second or
subsequent renewal terms pursuant to LESSEE'S renewal rights
contained in paragraph 3 of this agreement or at the expiration
of this Lease at the end [Illegible] Upon any of these
occurrences, the purchase price for the LESSEE Improvements shall
be seventy-five percent (75%) of the market value thereof as
determined by the appraisal procedure set forth hereafter.
b. Upon termination of this Lease by LESSEE pursuant to paragraph 19
hereof, provided LESSEE is not in default of any material
provision hereunder, if any one or more of the following events
exists:
1. The discontinuance by Outagamie County of the operation
known as the Outagamie County Airport in such fashion that
the LESSEE will be unable to continue its use of the
Premises for the intended purpose;
2. The assumption by the United States Government or any other
governmental agency or instrumentality of the operation,
control, or use of Outagamie Airport in such a manner as to
preclude LESSEE from using such Airport in the conduct of
its business;
3. A default by LESSOR to meet and observe any of the material
covenants herein contained if such default continues for a
period of thirty (30) consecutive days or more after written
notice to LESSOR by LESSEE, unless LESSOR has begun, and is
continuing, in good faith to remedy in such interval and if
such default precludes LESSEE from using such Airport in the
conduct of its business. The purchase price for the LESSEE
Improvements upon any one of these occurrences shall be the
full market value thereof as determined by the appraisal
procedures set forth hereafter.
In the event that the Purchase Obligation heretofore described shall be
activated, the market value of LESSEE'S Improvements shall be established
within thirty (30) days after the date requiring LESSEE to so purchase.
Closing of the purchase shall occur within thirty (30) days of the
establishment of the market value and shall take place at the site
specified by LESSOR in Outagamie County, Wisconsin, unless the parties
agree otherwise. LESSEE, at such closing after receipt of payment from
LESSOR, shall deliver a Bill of Sale or other similar document satisfactory
in form to LESSOR'S counsel, transferring the LESSEE Improvements to LESSOR
free and clear of all liens and encumbrances arising out of LESSEE'S acts
or omissions. The market value of the LESSEE Improvements shall be
determined by an appraiser mutually agreed upon by the parties. If the
parties cannot agree on a sole appraiser, each of the parties shall name
one appraiser, such appraisers shall in turn select a third, and the
selected appraisers shall act promptly to determine the market value. The
decision, and agreement, of any two of the appraisers as to the market
value shall be binding on the parties. Cost of the appraisal shall be
shared equally by the parties.
19. LESSEE'S TERMINATION RIGHTS. Upon the occurrence of any of the
following events, LESSEE may terminate this Lease in accordance with
the following terms and conditions upon sixty (60) days prior written
notice to LESSOR:
a. The issuance by any court of competent jurisdiction of any order
preventing or restricting the use of the Outagamie County Airport
for the purposes intended by this Lease, if the same shall
apparently be likely to remain in force and effect for a period
of sixty (60) consecutive days or more; the rental required of
LESSEE shall be abated for that period of time that such order is
in effect preventing or restricting the use of Outagamie County
Airport prior to LESSEE'S termination of the Lease;
b. The assumption by the United States Government of any other
governmental agency or instrumentality of the operation, control
or use of Outagamie County Airport for national defense in such a
manner as to preclude LESSEE from using such Airport in the
conduct of its business for a period of ninety (90) consecutive
days or more; the rental required of LESSEE shall be abated for
that period commencing with the said assumption and prior to the
effective date of LESSEE'S termination of the Lease;
c. A default by LESSOR to meet and observe any of the material
covenants herein contained, if such default continues for a
period of thirty (30) consecutive days or more after written
notice to LESSOR by LESSEE, unless LESSOR has begun, and is
continuing, in good faith to remedy the default in such
intervals; the rental required of LESSEE shall be abated during
the entire period of such default; or
d. In the event a substantial part of the LESSEE Improvements are
destroyed by fire, rain, wind, or other cause beyond the control
of LESSEE; the rent shall abate as of the date of such
destruction.
20. FIXTURES. LESSEE shall have the right to remove from the Premises upon
the termination of this Lease all machinery, equipment and fixtures
including but not limited to shelving, counters, bins, and storage
tanks (whether or not buried), whether or not attached to the LESSEE
Improvements or the Premises, but LESSEE shall, following such
removal, restore the Premises to their former condition, ordinary wear
and tear and damage from fire or other casualty excepted.
21. RIGHT OF FIRST REFUSAL. If LESSOR receives a bona fide offer for the
purchase of the Premises or any part thereof or a bona fide offer for
the purchase of any tract of which the Premises are a part which
LESSOR intends to accept, it will first give LESSEE a right of first
refusal; that is, it will give LESSEE written notice of the terms of
the offer and LESSEE will then have thirty days in which to notify
LESSOR whether it elects to purchase on the same terms and conditions
including price as set forth in the offer; if LESSEE notifies LESSOR
within such 30 day period that it elects to purchase, the transaction
will be closed as soon as feasible; if LESSEE has not notified LESSOR
in writing that it elects to purchase within 30 days after having
received notice from LESSOR, then LESSEE shall be deemed to have
waived its right to purchase and LESSOR shall be free to sell the
Premises or the part thereof or the tract of which the Premises are a
part, as specified in the notice upon terms and conditions not more
favorable to the purchaser than those set forth in the notice,
provided the transaction is closed within 6 months after the notice
was given; if sale to the proposed purchaser has not been completed
within such 6 month period, then LESSOR, before selling to that
proposed purchaser or another party, must again give LESSEE notice and
a right of first refusal as if the first notice had not been given.
22. ADDITIONS, REMOVALS AND ALTERATIONS BY LESSEE. LESSEE shall have the
right, while not in default under this Lease, from time to time, in
such manner and to such extent as LESSEE may deem desirable, to
construct further improvements on the Premises, subject to the
approval by LESSOR of the plans for construction, which approval shall
not be unreasonably withheld. All additions to the Premises shall
belong to LESSEE and shall be considered an addition to and a part of
the LESSEE Improvements after construction.
23. EXPANSION AREA. The area within 200 feet to the west (except that area
currently in the roadway right-of-way approximately 175 feet from the
west boundary line) and 400 feet to the east of the western and
eastern boundaries, respectively, of the Premises and having the same
north-south depth as the said western and eastern boundaries
(hereinafter called the "expansion area") shall be reserved for
expansion of LESSEE'S operations; LESSOR hereby grants to LESSEE an
option, to be exercised at any time while any part of the expansion
area remains unimproved by LESSOR, by giving 30 days' written notice
to LESSOR, to add to the area included within this Lease any or all of
such unimproved expansion area at the same rental as is then being
paid for the Premises for a term which shall be the same as the
unexpired term of this Lease with the same renewal option provisions
and subject to the same rental adjustments. LESSOR will not construct
any building or otherwise improve the expansion area without LESSEE'S
prior written consent. If LESSOR shall request such consent and LESSEE
shall deny the same, without itself exercising the aforesaid option to
expand, then, in that event, LESSEE shall pay to LESSOR one quarter
(1/4) of the then applicable rental per square foot for the Premises
for the duration of the Lease and its renewal periods or until the
LESSEE shall either exercise its option to utilize the said expansion
area or consent to LESSOR'S proposed use of the expansion area.
24. FUEL FLOWAGE CHARGES. LESSEE shall pay to LESSOR a use charge of three
cents ($.03) a gallon for all types of aviation fuel, aviation
gasoline, jet fuel, now used or which may be used in the future, sold
by LESSEE at said airport to purchasers other than to either
commercial airlines for the operation of regularly scheduled flights
to and from said airport, to any government for military aircraft or
to LESSEE'S parent or affiliated corporations. It is expressly
understood by and between the LESSOR and LESSEE that said gallonage
charge shall be subject to reexamination and reasonable adjustment to
a higher or to a lower figure at the end of the initial term and each
five (5) year renewal period of this Lease, but no change shall be
made without the mutual written consent of LESSOR and LESSEE. LESSOR
shall have the right to audit such of LESSEE'S books as pertain to the
sale of such fuels for the appropriate period, such audit to verify
the accuracy of LESSEE'S payments and will be made by an auditor
acceptable to both LESSOR and LESSEE, at a cost to be shared equally
by LESSOR and LESSEE, with copies of the audit report to be furnished
promptly to LESSOR and LESSEE upon completion. Audit of Fuel Flowage
Charges shall be determined in accordance with the Minimum Standard as
adopted by the Outagamie County Board of Supervisors.
25. CONTINUITY. This Lease and the provisions hereof shall be binding upon
and inure to the benefit of the successors and assigns of LESSOR and,
where permitted in harmony with the provisions hereof, to the benefit
of the assignees and subtenants of LESSEE.
26. NOTICES. The mailing addresses for mailing of notices required under
the terms of this Lease are as follows:
LESSOR: Outgamie County
410 S. Walnut Street
Appleton, Wisconsin 54911
LESSEE: K-C Aviation Inc.
c/o Kimberly-Clark Corporation
North Lake Street
Neenah, Wisconsin 54956
Notices sent by certified mail to the aforementioned addresses shall
be deemed to have been given properly under this Lease.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals this
9th day of October, 1980.
By: /s/ [Illegible] OUTGAMIE COUNTY
-----------------------------
Title Board Chairperson By: /s/ [Illegible]
--------------------------- -----------------------------
By: /s/ [Illegible] Title County Executive
----------------------------- -----------------------------
Title County Clerk
---------------------------
Approved as to form by: K-C AVIATION INC.
/s/ Richard L. Hamilton By: /s/ [Illegible]
- --------------------------------- -----------------------------
Richard L. Hamilton, Corporation Title President
Counsel -----------------------------
Kimberly-Clark Corporation, as a party to that agreement entitled "Lease
With Option To Renew" dated January 25, 1968, together with certain
subsequent additions to it, hereby assigns that agreement to its
wholly-owned subsidiary, K-C Aviation, Inc., on this 1st day of October,
1980.
KIMBERLY-CLARK CORPORATION
By /s/ [Illegible]
-----------------------------------
ADDENDUM NO. 1
TO LEASE DATED 9 OCTOBER, 1980
------------------------------
WHEREAS, Outagamie County, a Wisconsin municipal corporation, and K-C
Aviation Inc., a Delaware corporation, have heretofore entered into a certain
Lease Agreement dated and executed the 9th day of October, 1980 and
WHEREAS, said Lease, in Exhibit "A", describes the premises which are the
subject of the Lease, the same being 254,720 sq. Ft., and
WHEREAS, K-C Aviation Inc. is desirous of increasing the leased area.
NOW, THEREFORE, IT IS AGREED, as an Addendum to that Lease, that the
description attached hereto, marked Exhibit "B", shall be the revised and
correct description of all property which is the subject of the original
Lease, being in all 273,090 sq. ft. for which rental shall be paid commencing
the 16th day of October, 1980.
Dated at Appleton, Wisconsin this 24th day of December, 1980.
OUTAGAMIE COUNTY
By: /s/ John B. Schreiter
-----------------------------------
John B. Schreiter, County Executive
By: /s/ Herman V. Ripp
-----------------------------------
Herman V. Ripp, Board Chairperson
By: /s/ James D. Hensel
-----------------------------------
James D. Hensel, County Clerk
K-C AVIATION INC.
By: /s/ Timothy E. Hoeksema
-----------------------------------
Timothy E. Hoeksema, President
Approved as to form by:
/s/ Richard L. Hamilton
- ------------------------
Richard L. Hamilton
Corporation Counsel
Outagamie County
ADDENDUM NUMBER TWO TO LEASE
DATED 8 OCTOBER 1980
KIMBERLY CLARK AVIATION, INC.
WHEREAS, Outagamie County, a Wisconsin municipal corporation, and K-C
Aviation, Inc., a Delaware corporation, have heretofore entered into a
certain lease agreement dated and executed the 8th day of October, 1980,
together with subsequent addendum dated the 24th day of December 1980; and
WHEREAS, paragraph two of the said lease provides lessee with "the
exclusive use of and the right at any time to enclose by fencing, the apron
and supporting facilities, . . . .;" and
WHEREAS, the parties have agreed to deletion of the provisions for
exclusive use and the right to enclose by fencing.
NOW, THEREFORE, IT IS AGREED by and between the parties hereto:
1. That the promises and covenants contained herein are good and
sufficient consideration for the amendment of the said lease.
2. That the lease agreement dated October 8, 1980, be and the same
hereby is amended by striking from paragraph two thereof the word exclusive
in the second paragraph of paragraph two and the words "and the right at
any time to enclose by fending" such that the second paragraph of paragraph
two shall now read "lessee shall have the use of the apron and supporting
facilities, a "fuel farm" consisting of buried or service tanks for not
less than 20,000 gallons of aviation fuels, 50 gallons of oils and
lubricants, and 10,000 gallons of heating fuels together with power lines,
pumping, venting and other necessary or desirable facilities as lessee may
reasonably require, and access roads for heavy transport between the lessee
Improvements (as hereinafter defined) and fuel farm areas and public access
roads.
IN WITNESS WHEREOF, the parties have hereunto set their hands and
seals this ___ day of ___________, 1988, and confirm all other portions of
the original lease and subsequent addendum the same as if set forth fully
herein.
OUTAGAMIE COUNTY
By:
--------------------------------
John R. Schreiter
County Executive
By:
--------------------------------
George H. Schroeder
Board Chairperson
\
By:
--------------------------------
James D. Hensel
County Clerk
K-C AVIATION, INC.
By:
--------------------------------
Approved by:
/s/ Richard L. Hamilton
- --------------------------
Richard L. Hamilton
Corporation Counsel
Outagamie County
ADDENDUM NO. THREE TO LEASE
DATED 9 OCTOBER 1980
WHEREAS, Outagamie County, a Wisconsin municipal corporation, and K-C
Aviation, Inc., a Delaware corporation, have heretofore entered into a
certain Lease Agreement dated and executed the 9th day of October 1980 and
subsequently modified by Addendum Number One dated the 24th day of
December, 1980 and Addendum Number Two dated the 25th day of March, 1988;
and
WHEREAS, said original Lease together with the Addendum presently
provide for the letting of 273,090 square feet; and
WHEREAS, K-C Aviation, Inc., and Outagamie County have agreed to an
increase of the leased area of 33,855 square feet, a new total leased area
of 306,945 square feet; and
WHEREAS, the description attached hereto and marked Exhibit "C" is now
the revised correct description of the total property being let to K-C
Aviation, Inc., under the original Lease and Addenda one and two.
NOW, THEREFORE, IT IS AGREED that Outagamie County does hereby let
unto K-C Aviation, Inc., the property described in Exhibit "C", a total of
306,940 square feet for which rent shall be paid commencing the 1st day of
February, 1980; and
IT IS FURTHER AGREED that in all other respects all terms and
conditions of the original Lease are in full force and effect the same as
if set forth fully herein.
Dated this 26 day of January, 1989.
OUTAGAMIE COUNTY
By: /s/ John B. Schreiter
---------------------------
John B. Schreiter
County Executive
By: /s/ George H. Schroeder
---------------------------
George H. Schroeder
Board Chairperson
By: /s/ James D. Hensel
---------------------------
James D. Hensel
County Clerk
K-C AVIATION, INC.
By: /s/ Richard Emery
---------------------------
Richard Emery
President
Approved as to form by:
/s/ Richard L. Hamilton
- ----------------------------------
Richard L. Hamilton, Corp. Counsel
Outagamie County
FOURTH ADDENDUM
THIS FOURTH ADDENDUM is entered into this 22nd day of October,
1996, between OUTGAMIE COUNTY ("LESSOR") and K-C AVIATION INC. ("LESSEE").
W I T N E S S E T H :
WHEREAS, the parties have entered into a Lease on October 9,
1980, (hereinafter the "Lease"), providing for the lease from LESSOR by
LESSEE of land situated in the State of Wisconsin, County of Outagamie,
Town of Greenville, located at the Outagamie County Airport; and
WHEREAS, the parties have previously amended the Lease by a First
Addendum dated the 24th day of December, 1980, a Second Addendum dated the
25th day of March, 1988, and by a Third Addendum dated the 9th day of
October, 1990; and
WHEREAS, the parties desire to amend the Agreement by this Fourth
Addendum; and
NOW, THEREFORE, in consideration of the mutual benefits,
covenants and obligations of the parties contained in the Lease, in the
First, Second and Third Addendums, and in this Fourth Addendum, Lessor and
Lessee agree to amend the Lease as follows:
1. Paragraph 2, PREMISES, is amended by adding an additional
Exhibit to the Lease designated as Exhibit D which is attached hereto and
made a part hereof. Exhibit D describes and provides for additional land
leased by LESSEE from LESSOR hereunder and together with the other Exhibits
previously added in prior addendums, describe all of the land leased by
LESSEE from LESSOR pursuant to the Lease.
2. The rent for the additional land shall be calculated in
accordance with the pricing formula in Paragraph 4, RENTS, of the Lease.
3. The parties understand and agree that the purpose of amending
the Lease to provide for additional land is to enable LESSEE to construct
new facilities. The parties agree that such new facilities shall not be
included within the definition of Lessee Improvements in Paragraph 5,
LESSOR'S CONSTRUCTION OBLIGATION AND LESSEE'S IMPROVEMENTS, of the Lease.
Consequently, the parties agree that LESSOR shall have no obligation to
purchase new improvements made on the land leased pursuant to this Fourth
Addendum in accordance with Paragraph 18, PURCHASE OBLIGATION, but that
LESSOR retains the obligation under the Lease to purchase all improvements
in existence on the date of this Fourth Addendum. Further, the parties
agree that LESSOR shall not have to purchase any improvements constructed
after the date hereof on any part of the land described in and subsequently
leased by LESSEE from LESSOR pursuant to Paragraph 23, EXPANSION AREA, of
the Lease.
4. Paragraph 18, PURCHASE OBLIGATION, section a., shall be
amended by changing the percentage of the market value of Lessee
Improvements which shall constitute the purchase price, from seventy-five
percent (75%) to fifty percent (50%).
5. Only in the event where LESSEE shall not renew the Lease
pursuant to Paragraph 3, TERM, at the end of an extension term, LESSEE
shall have the right to continue the Lease in accordance with its
provisions for a period of up to two (2) years after the end of such
extension term in order to allow LESSEE an opportunity to sell all of the
LESSEE Improvements (both the improvements which LESSOR shall be required
to purchase and the improvements which are to be constructed hereafter
which LESSOR shall have no obligation to purchase). LESSOR'S prior written
consent shall be required before the sale of the improvements, which
consent shall not be unreasonably withheld. Any sale of the improvements
shall be subject to the continuance of the present use of the improvements
for aviation purposes and to the proof of the financial viability of the
purchasing entity. The rent to be paid during such period shall be reduced
to fifty percent (50%) of the rent then being paid by LESSEE to LESSOR at
the end of such extension term, but only if LESSEE shall not be conducting
aviation completion business on the Premises during such period. Should
LESSEE be unable to sell the improvements during the period, LESSOR shall
be required to purchase the LESSEE Improvements in existence on the date
hereof (but not the new improvements as provided for above in paragraph 3)
pursuant to paragraph 18, PURCHASE OBLIGATION, with the market value of the
improvements to be determined as of the date when LESSEE advises LESSOR
that no purchaser can be located and that the Lease shall be considered to
have ended. Further, where LESSEE shall be required to structure any sale
of the LESSEE Improvements as a part of an assignment or sublease of this
Lease, there shall be no change to LESSOR'S obligation to purchase the
applicable (as provided for above in paragraph 3) LESSEE Improvements and
LESSOR shall purchase such improvements at the end of the Lease from
LESSEE's assignee or sublessee. The parties agree that all of the
improvements on the land leased hereunder by LESSEE from LESSOR, shall be
conveyed and transferred to LESSOR by LESSEE or its assignee or sublessee
at the end of the Lease simultaneously with the closing on LESSOR'S
purchase of the applicable LESSEE Improvements.
6. In the first sentence, fourth line of the second paragraph on
page 12 of the Lease in Paragraph 18, PURCHASE OBLIGATION, the word
"LESSEE" between the words "requiring" and "to so purchase" shall be
deleted and the word "LESSOR" shall be inserted.
7. LESSOR shall continue snow removal on the existing parking
lots on the Premises, except, however, LESSEE shall be responsible for snow
removal on any areas within the leased area described in Exhibit D.
8. LESSOR shall move its fence to outside of the boundaries of
the leased area described in Exhibit D.
9. LESSOR shall reserve and make available fifty (50) parking
spaces for use of the construction personnel during the duration of the
construction of the new improvements on the leased area described in
Exhibit D. LESSEE shall pay for the parking permits for such spaces.
10. Except as previously amended, the Lease in all other respects
shall be unchanged.
IN WITNESS WHEREOF, the parties have executed this Fourth
Amendment upon the date first above written.
OUTAGAMIE COUNTY K-C AVIATION INC.
By: By: /s/ [illegible]
-------------------------- ---------------------------
Title: President
-------------------
OUTAGAMIE COUNTY
By: /s/ James P. Schuette
------------------------------
James P. Schuette
County Executive
By: /s/ Marvin J. Fox
------------------------------
Marvin J. Fox
Board Chairman
By: /s/ James D. Hensel
------------------------------
James D. Hensel
County Clerk
FIFTH ADDENDUM
THIS FIFTH ADDENDUM is entered into this 19th day of March, 1997,
between Outagamie County ("LESSOR") and K-C Aviation Inc., ("LESSEE").
W I T N E S S E T H :
WHEREAS, the parties have entered into a Lease on October 9,
1980, (hereinafter the "Lease"), providing for the lease from LESSOR by
LESSEE of land situated in the State of Wisconsin, County of Outagamie, Town
of Greenville, located at the Outagamie County Airport; and
WHEREAS, the parties have previously amended the Lease by a First
Addendum dated the 24th day of December, 1980, a Second Addendum dated the
25th day of March, 1988, a Third Addendum dated the 9th day of October, 1990,
and by a Fourth Addendum dated the 22nd day of October, 1996; and
WHEREAS, the parties desire to amend the Agreement by this Fifth
Addendum; and
NOW, THEREFORE, in consideration of the mutual benefits,
covenants and obligations of the parties contained in the Lease, in the
First, Second, Third and Fourth Addendums, and in this Fifth Addendum, LESSOR
and LESSEE agree to amend the Lease as follows:
1. Paragraph 2, PREMISES, is amended by adding an additional
Exhibit to the Lease designated as Exhibit "E" which is attached hereto and
made a part hereof. Exhibit "E" describes and provides for additional land
leased by LESSEE from LESSOR hereunder and together with the other Exhibits
previously added in prior addendums, describe all of the land leased by
LESSEE from LESSOR pursuant to the Lease.
2. The rent for the additional land shall be calculated in
accordance with the pricing formula in Paragraph 4, RENTS, of the Lease.
3. The parties understand and agree that the purpose of amending
the Lease to provide for additional land is to enable LESSEE to construct
new facilities. The parties agree that such new facilities shall not be
included within the definition of LESSEE Improvements in Paragraph 5,
LESSOR'S CONSTRUCTION OBLIGATION AND LESSEE'S IMPROVEMENTS, of the Lease.
Consequently, the parties agree that LESSOR shall have no obligation to
purchase new improvements made on the land leased pursuant to this Fifth
Addendum in accordance with Paragraph 18, PURCHASE OBLIGATION, but that
LESSOR retains the obligation under the Lease to purchase all improvements
in existence on the date prior to the Fourth Addendum. Further, the parties
agree that LESSOR shall not have to purchase any improvements constructed
after the date hereof on any part of the land described in and subsequently
leased by LESSEE from LESSOR pursuant to Paragraph 23, EXPANSION AREA, of
the Lease.
4. Paragraph 18, PURCHASE OBLIGATION, section a., shall be
amended by changing the percentage of the market value of LESSEE
Improvements which shall constitute the purchase price, from seventy-five
percent (75%) to fifty percent (50%).
5. Only in the event where LESSEE shall not renew the Lease
pursuant to Paragraph 3, TERM, at the end of an extension term, LESSEE
shall have the right to continue the Lease in accordance with its
provisions for a period of up to two (2) years after the end of such
extension term in order to allow LESSEE an opportunity to sell all of the
LESSEE Improvements (both the improvements which LESSOR shall be required
to purchase and the improvements which are to be constructed which LESSOR
shall have no obligation to purchase). LESSOR'S prior written consent shall
be required before the sale of the improvements, which consent shall not be
unreasonably withheld. Any sale of the improvements shall be subject to the
continuance of the present use of the improvements for aviation purposes
and to the proof of the financial viability of the purchasing entity. The
rent to be paid during such period shall be reduced to fifty percent (50%)
of the rent then being paid by LESSEE to LESSOR at the end of such
extension term, but only if LESSEE shall not be conducting aviation
completion business on the Premises during such period. Should LESSEE be
unable to sell the improvements during the period, LESOR shall be required
to purchase the LESSEE Improvements in existence on the date of the Fourth
Addendum (but not the new improvements as provided for above in paragraph
3) pursuant to Paragraph 18, PURCHASE OBLIGATION, with the market value of
the improvements to be determined as of the date when LESSEE advises LESSOR
that no purchaser can be located and that the Lease shall be considered to
have ended. Further, where LESSEE shall be required to structure any sale
of the LESSEE Improvements as a part of an assignment or sublease of this
Lease, there shall be no change to LESSOR'S obligation to purchase the
applicable (as provided for above in paragraph 3) LESSEE Improvements and
LESSOR shall purchase such improvements at the end of the Lease from
LESSEE'S assignee or sublessee. The parties agree that all of the
improvements on the land leased hereunder by LESSEE from LESSOR, shall be
conveyed and transferred to LESSOR by LESSEE or its assignee or sublessee
at the end of the Lease simultaneously with the closing on LESSOR'S
purchase of the applicable LESSEE Improvements.
6. In the first sentence, fourth line of the second paragraph on
page 12 of the Lease in Paragraph 18, PURCHASE OBLIGATION, the word
"LESSEE" between the words "requiring" and "to so purchase" shall be
deleted and the word "LESSOR" shall be inserted.
7. LESSOR shall continue snow removal on the existing parking
lots on the Premises, except, however, LESSEE shall be responsible for snow
removal on any areas within the leased area described in Exhibit "E".
8. LESSOR shall move its fence to outside of the boundaries of
the leased area described in Exhibit "E".
9. LESSOR shall reserve and make available fifty (50) parking
spaces for use of the construction personnel during the duration of the
construction of the new improvements on the leased area described in
Exhibit "E". LESSEE shall pay for the parking permits for such spaces.
10. LESSEE shall assume financial responsibility for any taxiway
alterations directly required by the construction of the paint building
upon the land described in the attached Exhibit "E".
11. Except as previously amended, the Lease in all other respects
shall be unchanged.
IN WITNESS WHEREOF, the parties have executed this Fifth Addendum
upon the date first above written.
OUTAGAMIE COUNTY K-C AVIATION INC.
By: /s/ James P. Schuette By: /s/ John F. Rahilly
------------------------ --------------------------
James P. Schuette John F. Rahilly
Title: County Executive Title: President
By: /s/ Marvin J. Fox
------------------------
Marvin J. Fox
Title: Board Chairman
By: /s/ James D. Hensel
------------------------
James D. Hensel
Title: County Clerk