EXHIBIT 10.69
ASSIGNMENT AND ASSUMPTION OF FACILITIES AGREEMENT AND
AGREEMENT FOR DONATION AND ASSIGNMENT OF PURCHASED ITEMS
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THIS ASSIGNMENT AND ASSUMPTION OF FACILITIES AGREEMENT AND AGREEMENT FOR
DONATION AND ASSIGNMENT OF PURCHASED ITEMS (this "Assignment") is made and
entered into as of the ___ day of April, 1996, by and between AllianceAirport
Authority, Inc., a nonstock, nonprofit industrial development corporation
organized and existing under the laws of the State of Texas, having a mailing
address at 1000 Throckmorton, Fort Worth, Texas 76102 ("Assignor"), and the City
of Fort Worth, Texas, a municipal corporation, having a mailing address at 1000
Throckmorton, Fort Worth, Texas 76102 ("Assignee");
RECITALS:
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A. Assignee is a political subdivision of the State of Texas.
B. Assignor is an industrial development corporation created by Assignee.
C. Assignor has this day conveyed to Assignee a certain tract of land and
appurtenances situated in Denton County, Texas, more particularly described on
the attached Exhibit "A" which is incorporated into this Assignment, together
with all improvements thereon (the "Property").
D. The Property is subject to a Land and Special Facilities Lease
Agreement (the "Facilities Agreement") dated April 1, 1996, between Assignor, as
lessor, and Federal Express Corporation, a Delaware corporation, as lessee (the
"Lessee"). Capitalized terms not otherwise defined herein shall have the
meanings assigned such terms in the Facilities Agreement.
E. In conjunction with the conveyance of the Property, Assignor has agreed
to assign all of its right, title and interest in and to the Facilities
Agreement to Assignee, except as otherwise provided herein, and Assignee has
agreed to assume and perform all of Assignor's liabilities and obligations
arising under the Facilities Agreement, except as otherwise provided herein, on
and after the date of this Assignment, all in accordance with the terms and
conditions set forth below.
F. In connection with construction of improvements on and placement of
tangible personal property on the Property, it is anticipated that certain items
of tangible personal property, material, consumables, equipment, fixtures, and
services (collectively, the "Purchased Items") acquired pursuant to various
construction contracts and other agreements with third parties (the "Project
Contracts") will or may, with Assignor's consent, become the property of
Assignor, subject to and in accordance with the provisions of the Facilities
Agreement.
G. Upon its acceptance thereof, Assignor will donate, assign, and transfer
to Assignee all right, title, and interest in any such Purchased Items subject
to Assignee's acceptance and approval thereof after appropriate due diligence by
Assignee.
H. Assignor will acquire the Purchased Items under the Project Contracts
upon Assignor's approval thereof and after appropriate due diligence by Assignor
for the sole purpose of donating such Purchased Items to Assignee, and Assignor
does not intend to make any intervening use of any Purchased Items.
I. To the extent it may lawfully do so, Assignor will issue an exemption
certificate pursuant to Section 151.155 of the Texas Tax Code.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are acknowledged, Assignor and Assignee agree as follows:
1. Definitions. Capitalized terms not otherwise defined herein shall have
the meanings assigned such terms in the Facilities Agreement.
2. Assignment. Assignor assigns, transfers and conveys to Assignee all of
Assignor's right, title and interest as lessor in and to the Facilities
Agreement and all of the rights, benefits and privileges of Assignor as lessor
thereunder, including without limitation all of Assignor's right, title and
interest in and to all rentals thereunder; provided, however, that Assignor
retains its rights (i) to receive any payments due the Authority under Section
510 of the Facilities Agreement, (ii) to indemnity under Section 605(c) and
Article IX of the Facilities Agreement and (iii) to perform its covenants (A)
with respect to the Bonds, including those under Section 614 of the Facilities
Agreement and (B) under Article XII of the Facilities Agreement.
3. Assumption. Assignee assumes all liabilities and obligations of
Assignor under the Facilities Agreement which arise on or after the date hereof
and agrees to perform all obligations of Assignor under the Facilities Agreement
which are to be performed or which become due on or after the date hereof;
provided, however, that Assignee does not assume and Assignor shall remain
responsible for, the performance of its covenants (i) with respect to the Bonds,
including those under Section 614 of the Facilities Agreement and (ii) under
Article XII of the Facilities Agreement. Notwithstanding any provisions of this
Assignment to the contrary, Assignee shall not be or become a party to any
Project Contracts.
4. Additional Covenant of Assignee. In consideration of Lessee granting
its consent to this Assignment, Assignee covenants and agrees that in the event
Lessee exercises its right under Section 308 of the Facilities Agreement to
convey additional land continguous to the Land acquired by the Lessee to
accommodate Lessee Improvements, Assignee shall consider in good faith any
request by Lessee that Assignee seek approval from the FAA of an expansion of
the Airport boundaries to include such additional land. The foregoing
notwithstanding, Assignee makes no assurances that any such request will receive
approval from the FAA.
5. Ad Valorem Taxation. The Land and Special Facilities are owned by
Assignor and, as of the date of this Assignment, correspondence has been
received by the parties hereto from the Tarrant Appraisal District and the
Denton County Central Appraisal District stating that the Land and portions of
the Special Facilities may be found to be exempt from ad valorem taxes. Copies
of such correspondence have been provided to the Lessee. Assignor, Assignee and
Lessee recognize that the proposed use of the Land and Special Facilities is
reasonably necessary
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to carry out the public purpose of Assignee as defined by Chapter 22 of the
Texas Transportation Code (the "Airports Act") and that as such anticipate that
the leasehold interest of the Lessee in the Land and Special Facilities may be
exempt from ad valorem taxation. Neither Assignor nor Assignee, however, makes
any warranty as to whether the leasehold interest of the Lessee in the Land and
Special Facilities is or will be exempt from ad valorem taxation, it being the
duty and responsibility of the Lessee to establish such exemption of its
leasehold interest.
6. Representations and Warranties.
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(a) Assignor represents and warrants to Assignee (i) that it has full
power and authority to assign the Facilities Agreement to Assignee, (ii) that
the Facilities Agreement is in full force and effect and has not been modified
or amended in any manner whatsoever, and (c) that all right, title and interests
of Assignor in and to the Facilities Agreement are free and clear of any and all
claims, liens and encumbrances whatsoever other than the lien and pledge thereof
under the Indenture to secure the Bonds, and that Assignor warrants and will
forever defend the same against the claims of all persons claiming the same or
any part thereof.
(b) In consideration of Lessee granting its consent to this Assignment,
Assignee represents and warrants to Lessee that:
(i) It is duly organized as a home-rule city pursuant to the laws of the
State, and has the power under the laws of the State, including
specifically the Airports Act, to enter into the transactions
contemplated by this Assignment and to carry out its obligations
hereunder. By proper action, Assignee has duly authorized the
execution and delivery of this Assignment.
(ii) This Assignment constitutes the valid and binding obligation of
Assignee, enforceable against Assignee in accordance with its terms,
except as the enforceability thereof may be subject to applicable
bankruptcy or other laws affecting the rights of creditors generally
or by the application of general principles of equity.
(iii) All approvals or consents of which Assignee has knowledge and which
are necessary for Assignee to approve, execute and deliver this
Assignment have been obtained.
(iv) Neither the execution and delivery of this Assignment, the
consummation of the transactions contemplated hereby, nor the
fulfillment of or compliance with the terms and conditions of this
Assignment conflicts with or results in a breach of any of the terms,
conditions or provisions of any restriction, ordinance or any
agreement or instrument to which Assignee is now a party or by which
it is bound, or constitutes a default under any of the foregoing, or
results in the creation or imposition of any lien, charge or
encumbrance of any nature whatsoever upon any of the property or
assets of Assignee under the terms of any instrument or agreement to
which Assignee is party.
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(v) There is no litigation now pending or to Assignee's knowledge,
threatened challenging the powers of Assignee or its councilmembers or
in any way affecting this Assignment.
(vi) Subject to the provisions of Section 803 of the Facilities Agreement,
it will use its best efforts to operate and maintain the Airport as a
public airport consistent with and pursuant to the sponsor's
assurances given by the City to the United States Government under the
Federal Airport and Airways Act.
(vii) To the extent it may do so and at Lessee's expense, it will grant
Lessee all necessary roadway or utility easements required by Lessee
to construct utility lines and connecting roadways necessary to
connect utility services for the Leased Premises.
7. Donation and Assignment of Purchased Items. Assignor by means of this
instrument grants and conveys to Assignee all right, title, and interest that
Assignor may have in the Purchased Items described in Exhibit "B" hereto.
8. Agreement to Deliver Purchased Items. Upon Assignor's acceptance of
Purchased Items, Assignor will immediately notify Assignee, and upon Assignee's
acceptance of such Purchased Items, Assignor will deliver all such Purchased
Items to Assignee. Assignor will not make any intervening use of any such
Purchased Items. All costs or expenses of any such delivery shall be paid by
Assignor but solely from funds on deposit in the Construction Fund or monies
provided by Lessee.
9. No Assumption of Liabilities by Assignor or Assignee with Respect to
Purchased Items. Neither Assignor nor Assignee assumes any liability, under the
Project Contracts or otherwise, to pay for the acquisition of any of the
Purchased Items at any time other than from funds on deposit in the Construction
Fund, and nothing in this Agreement shall operate to impose any such liability
on Assignor or Assignee. Correspondingly, any liability of Lessee under the
Project Contracts shall not be affected by this Agreement. Neither Assignor nor
Assignee shall be liable for any taxes related to the Purchased Items by virtue
of any use of such property or otherwise, and Lessee shall be liable for such
taxes, if any, as may be levied from time to time.
10. Further Assurances. Assignor covenants with Assignee and Assignee
covenants with Assignor that each will execute or procure any additional
documents necessary to establish the rights of the other under this Assignment.
11. Binding Effect. This Assignment is binding upon and shall inure to
the benefit of Assignor, Assignee and their respective successors and assigns.
12. Multiple Counterparts. This Assignment may be executed in a number of
identical counterparts, each of which is deemed an original, and all of which
constitute collectively one agreement between the parties.
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13. Governing Law. This Assignment shall be construed and enforced in
accordance with the laws of the United States of America and the State of Texas.
14. Entire Agreement. This Assignment contains the entire agreement of
the parties and supersedes all prior agreements and understandings, oral or
written, with respect to the subject matter hereof. This Assignment may be
changed only by an agreement in writing signed by all of the parties to this
Assignment.
15. Conflict. In the event of any conflict between the terms of this
Assignment and the terms of any other agreement or understanding between the
parties relating to the Purchased Items, the terms of this Assignment shall
control.
16. Headings. The headings contained in this Assignment are for reference
purposes only and shall not affect the meaning or interpretation of this
Assignment.
IN WITNESS WHEREOF, the parties have executed this Assignment as of the
date set forth above.
ASSIGNOR: ALLIANCEAIRPORT AUTHORITY, INC.
By: /s/ JIM LANE
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President
By: /s/ JEWEL WOODS
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(SEAL) Secretary
ASSIGNEE: THE CITY OF FORT WORTH, TEXAS
By: /s/ BOB TERRELL
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City Manager
By: /s/ ALICE CHURCH
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City Secretary
APPROVED AS TO FORM:
(SEAL) By: /s/ WADE ADKINS
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City Attorney
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The undersigned lessee under the Facilities Agreement
consents to and acknowledges the provisions of the
above Assignment and Assumption of Facilities Agreement
and Agreement for Donation and Assignment of Purchased Items
by and between Assignor and Assignee:
FEDERAL EXPRESS CORPORATION
By: /s/ CHARLES M. BUCHAS, JR.
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Name: Charles M. Buchas, Jr.
Title: Vice President and Treasurer
THE STATE OF TEXAS )
)
COUNTY OF TARRANT )
This instrument was acknowledged before me on the 2nd day of April, 1996,
by Jim Lane and Jewel Woods, President and Secretary, respectively, of
AllianceAirport Authority, Inc., a nonstock, nonprofit industrial development
corporation organized and existing under the laws of the State of Texas, on
behalf of said Corporation.
/s/ LOIS O. THREATT
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Notary Public in and for the State of Texas
My Commission Expires: 10-6-97
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THE STATE OF TEXAS )
)
COUNTY OF TARRANT )
This instrument was acknowledged before me on the 2nd day of April, 1996,
by Bob Terrell, Alice Church, and Wade Adkins, City Manager, City Secretary, and
City Attorney, respectively, of the City of Fort Worth, Texas, a municipal
corporation, on behalf of said City.
/s/ LOIS O. THREATT
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Notary Public in and for the State of Texas
My Commission Expires: 10-6-97
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THE STATE OF TENNESSEE )
COUNTY OF SHELBY )
This instrument was acknowledged before me on the 1st day of April, 1996,
by Charles M. Buchas, Jr., Vice President and Treasurer of Federal Express
Corporation, a Delaware corporation, on behalf of said corporation.
/s/ KIMBLE HALE SCOTT
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Notary Public in and for the State of
Tennessee
My Commission Expires: June 8, 1999
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