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Exhibit 10.67
OFFICE / SHOP SPACE USE PERMIT
between
SIGNATURE COMBS INC.
and
CHAUTAUQUA AIRLINES
covering
OFFICE SPACE
BULDING #3, 6390 CARGO DRIVE
effective
JANUARY 16, 2001
1st Revision: 3/1/00
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OFFICE / SHOP SPACE USE PERMIT
This OFFICE / SHOP SPACE PERMIT, ("Permit") is entered into as of this 16th
day of JANUARY, 2001 by and between SIGNATURE COMBS, a DELAWARE corporation,
with its principal offices at 201 South Orange Avenue, Suite 1100, Orlando,
Florida 32801 ("Signature") and CHATAUQUA AIRLINES., with offices located at
2500 S. High School Rd. Suite 160, Indianapolis IN 46241 ("Permittee"). For
purposes of this Permit, Signature and the Permittee may, from time to time, be
individually referred to as a "Party" and collectively as the "Parties".
In consideration of the mutual covenants contained herein, and for other
good and valuable consideration, the Parties hereby agree as follows:
1. USE OF STORAGE SPACE AND PARTIES' REPRESENTATIONS
1a. USE OF OFFICE SPACE. Signature hereby authorizes Permittee to use and
occupy on a dedicated, exclusive basis, the office located in Signature's
building 3 facility (the "Facility") and comprising approximately 2,984 square
feet (the "Space") at INDIANAPOLIS Airport, INDIANAPOLIS, IN (the "Airport").
The Office Space is more specifically situated within Building 3 suite #'s
21,23,25,26,28,30,32,34.
Permittee represents that the Space shall be utilized solely for
administration and business purposes consistent with the operational and/or
maintenance requirements of its business. Violation of this provision in any
manner shall constitute an act of default hereunder. No other commercial
activity of any kind whatsoever shall be conducted by Permittee in, from or
around the Space, except as specifically authorized by this Permit.
Permittee shall be authorized to utilize designated common use areas of the
Facility, including, but not limited to, restrooms, entry ways, hallways and
vending areas, as specified by Signature's general manager or designate at the
Airport.
1b. PERMITTEE'S REPRESENTATIONS. Permittee represents it is fully
authorized to enter into this Permit on behalf of itself or any third party
which it herein represents and to bind itself or any third party to the terms
and conditions set forth in this Permit.
Permittee further represents that it shall not at any time place a load
upon the interior floor, wall or ceiling of the Space, which in any way exceeds
the weight bearing capacity of any such Space components or accelerates the
deterioration of same beyond ordinary wear and tear. Permittee agrees to obtain
the advance permission of Signature prior to placing any items which potentially
could cause damage or structural failure upon the interior floor, ceiling or
walls of the Space. Any repair or restoration required to be undertaken to the
Space or Facility as a result of Permittee's breach or violation of the
foregoing provision, shall be the sole responsibility and cost of Permittee.
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2. TERM
The initial term of this Permit shall be for a period of 12 months,
commencing January 16, 2001 and continuing through January 16, 2002 ("Initial
Term") and month to month thereafter, unless earlier terminated under the
provisions of this Permit. Following the expiration of the Initial Term, either
party may effect termination of this Permit, with or without cause, by
furnishing the opposite party thirty (30) days advance written notice.
The Initial Term and any subsequent extension (including, but not limited
to, month to month extension) or renewal of this Permit shall collectively be
referred to as the "Term".
3. RENT AND ADDITIONAL CHARGES
3a. PAYMENT OF RENT AND ADDITIONAL CHARGES. For use of the Space, Permittee
agrees to pay Signature, monthly rentals, payable in advance, on the first (1st)
day of each calendar month during the Term hereof, the following sum(s), plus
any and all Airport concession fees or charges and any and all applicable sales
or use taxes due thereon, as specified below:
OFFICE RENTAL RATE: $2,025.00
In the event that the term of this Permit shall commence or end on any day
other than the first and last day, respectively, of a calendar month, the sums
due hereunder for a portion of such month shall be prorated on a per-diem basis,
and the first payment shall be due on or before the effective date hereof.
3b. AIRPORT CONCESSION FEES AND CHARGES. Airport concession fees or
charges, sales and use taxes shall be the prevailing fees, charges and/or taxes
applicable at the time of each monthly rental payment, as specified below:
AIRPORT CONCESSION FEE(S): $____0________
APPLICABLE SALES TAX: $____0________
3c. FULL PAYMENT. Monthly rent and all additional charges shall be paid
promptly when due, without notice or demand and without deduction, diminution,
abatement, counterclaim or setoff of any amount or for any reason whatsoever, to
Signature at the Airport address set forth in Article 26.
3d. LATE PAYMENT. In the event payment is not received within ten (10)
calendar days from the applicable monthly due date, Signature reserves the right
to impose a late payment fee of one and one-half percent (1.5%) per month of the
outstanding balance which shall be added to the amount due and owing to
Signature. The assessment of late charges by Signature or the payment of same by
Permittee shall not in any manner prejudice or diminish the rights of Signature
as set forth in Article 25. Imposition of a late payment fee is solely at
Signature's option and failure by Signature to exercise this option does not
waive Signature's right to exercise this right at a future date.
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3e. ADJUSTMENT OF FEES AND CHARGES. Consistent with the passing of each
annual period, it is mutually agreed the Space rental rate may be increased
5% by Signature. Permittee shall be notified, in writing, at least
thirty (30) days prior to the implementation of the adjusted Space rental rate.
Permittee's acceptance of Signature's adjusted rental rate, either in writing or
by Permittee's payment of the adjusted rate, shall constitute an amendment of
this Permit solely to the extent of revising the Term and rental rate. Unless
expressly set forth in writing to the contrary, all other terms and conditions
of the Permit shall continue in full force and effect and without alteration.
3f. ALTERATION OF PREVAILING LAND RENTS BY THE AIRPORT. During the Term of
this Permit, if the Airport or other local, state or federal agency having
jurisdiction over Signature's leasehold promulgates, legislates, invokes,
exercises or otherwise enacts rules, regulations or laws which result in the
prevailing land rents and/or concession fees applicable to Signature's leasehold
to be increased, then Signature, commensurate with written notification of such
occurrence to the Permittee, reserves the right to increase Permittee's
prevailing monthly Space rent by a corresponding and proportionate amount as of
the effective date of such increase.
4. SECURITY DEPOSIT N/A
5. PROPERTY RIGHTS NOT CREATED
Nothing in this Permit shall be construed or deemed to constitute a grant
of an interest in real property or to convey an estate or to vest property
rights in the Permittee. Nor shall this Permit or its performance be interpreted
to create a landlord/tenant, partnership, agency, joint venture, bailment, trust
or fiduciary relationship between Signature and Permittee.
6. MAINTENANCE AND SERVICES
6a. SIGNATURE'S MAINTENANCE OBLIGATIONS. Signature shall operate, maintain,
repair and replace the systems, facilities and equipment of the Facility
necessary for the operation by Permittee of its business in the Space. Signature
shall maintain and repair the Facility's foundation, structure, roof, mechanical
systems and other related structural systems. Signature shall maintain all
exterior portions of the Space, hallways and other related facilities in a clean
and orderly condition, free of dirt, rubbish and unlawful obstructions.
Signature shall provide utilities, excepting telephone and all other
communication equipment to the Space, including sufficient heat and air
conditioning systems to maintain the temperature of all applicable interior,
enclosed office space at a comfortable, proper level.
Permittee shall be liable for any and all expenses reasonably incurred by
Signature for any maintenance, repair or replacement required to be performed
which result from the use or occupancy of the Space by Permittee or Permittee's
agents, servants, officers, directors, employees or invitees, excepting such
maintenance or repairs necessitated by normal wear and tear, as determined by
Signature.
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6b. PERMITTEE'S MAINTENANCE OBLIGATIONS. Permittee shall be responsible to
maintain the interior of the Space in a clean and orderly condition at all times
during the Term.
6c. CLOSURE OF SPACE DURING REPAIR. Consistent with Signature's obligations
as set forth in Sub-Paragraph 6a to keep the Facility in proper repair, should
Facility or Space maintenance or repairs, whether preventive or non-routine, be
required to be undertaken by Signature and such maintenance or repair, in
Signature's sole judgment, shall compromise or potentially compromise the safety
of Permittee's personnel or property or other Facility permittee's personnel or
property, then Signature, concurrent with notification of Permittee, shall close
the Space until such time as the maintenance/repair work is completed or, in
Signature's sole determination, the maintenance/repair work is completed to the
extent that no further danger exists to the Space or Permittee's personnel or
property. Signature agrees to pro-rate the following month's Space rent of
Permittee for all days the Space cannot be utilized. The foregoing proration of
rent shall be the only compensation due Permittee from Signature hereunder.
7. SECURING / LOCKING OF SPACE
7a. SECURING OF SPACE. Unless otherwise expressly agreed to by Signature,
the securing of the Space and ensuring the proper shutdown of all office
machines, coffee makers, lights, space heaters and other unique equipment owned
or leased, shall at all times remain solely with the Permittee.
7b. LOCKING OF SPACE. Unless otherwise agreed to in writing, Permittee
shall be solely responsible for the locking of the Space. Subject to advance
approval by Signature's local general manager, Permittee may, at its sole cost,
have supplemental locks installed on Space access door(s), provided the
Signature general manager is afforded a key(s) in the event access is required.
7c. NON-LIABILITY OF SIGNATURE. Under no circumstances shall Signature, its
officers, directors or employees be held responsible in any manner for losses
from the Space sustained by the Permittee for the services rendered by Signature
under this Permit except for its gross negligence or willful misconduct.
8. PERFORMANCE OF ANCILLARY SERVICES BY SIGNATURE
It is acknowledged by the Parties that other services not described in this
Permit may be requested by Permittee for the office. (or on behalf of the
owner/operator) to be performed by Signature. Such ancillary services may
include, but are not limited to, interior cleaning of the Space or other
services which may or may not be directly related to Permittee's use and
occupancy of the Space (collectively, "Ancillary Services"). Signature agrees to
furnish and/or perform such Ancillary Services at the request of the Permittee
at Signature's prevailing and locally-established rates or as otherwise
negotiated between Signature local management and Permittee. Such requests may
be made by Permittee verbally or pursuant to a verbal or written request. If
such Ancillary Services are provided, Permittee agrees to pay Signature for all
such work which shall be considered additional charges under Article 3 herein
and subject to all of the terms and conditions of this Permit.
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9. PERMITTEE'S RESPONSIBILITY FOR CONDUCT
All Permittee employees will obtain and display proper identification in
accordance with prevailing Airport regulations for all areas of the Airport
where required. All costs incurred in obtaining such required identification
badge authorizations or endorsements shall be borne solely by Permittee.
Permittee shall indemnify and hold harmless Signature (inclusive of its
subsidiaries, affiliates and parent company, as now or hereafter constituted)
and its officers, directors, agents, tenants, customers, contractors,
subcontractors, invitees and employees from and against any and all fines,
penalties, damages or legal actions which may be imposed by the Airport, United
States Customs Service or any other agency having jurisdiction at or on the
Airport as a result of Permittee's or its officers, directors, agents,
contractors, subcontractors, invitees or employees failure to comply and adhere
to any and all federal, state, local or Airport regulations in effect as of the
effective date of this Permit or promulgated from time to time thereafter.
10. ENVIRONMENTAL RESPONSIBILITIES OF PERMITTEE
10a. ENVIRONMENTAL REMOVAL AND DISPOSAL. Permittee shall be responsible for
the proper removal and disposal of all Hazardous and Regulated Substances, as
defined herein, generated by Permittee as a result of Permittee's activities in,
on and from the Space. Such removal and disposal shall include, but not be
limited to Permittee's manifesting such regulated substances under Permittee's
assigned Environmental Protection Agency (EPA) identification number and
ensuring that removal of such regulated materials from the Storage and
Signature's leasehold is accomplished in accordance with Airport, local, state
and federal guidelines. Additionally, environmental contamination which impacts
Signature's Airport leasehold as a result of Permittee's improper handling,
disposal, release or leakage of any regulated substances while utilizing the
Space, shall be the sole responsibility of Permittee. Permittee shall also be
responsible for the safe and proper removal of all regulated substances it
generates in conjunction with its use and occupancy of the Space upon
termination of this Permit. For purposes of this provision, "Hazardous and
Regulated Substances" shall mean any hazardous or toxic substances, materials or
wastes, pollutants or contaminants, as defined, listed or regulated now or in
the future by any federal, state or local law, rule, regulation, ordinance,
statute or order or by common law decision, including, without limitation,
petroleum products or by-products.
10b. ENVIRONMENTAL INDEMNIFICATION. Permittee shall indemnify, defend and
hold harmless Signature (including Signature's subsidiaries, affiliates and
parent company, as now or hereafter constituted), the Airport and their
respective officers, directors, agents, customers, tenants, contractors,
subcontractors, invitees, guests and employees from and against any and all
claims (including, without limitation, third party claims from bodily injury or
real or personal property damage), actions, administrative proceedings
(including informal proceedings), judgements, damages, punitive damages,
penalties, fines, taxes and assessments, liabilities (including sums paid in
settlement of claims), interest, impairments, losses, fees and expenses
(including attorneys' fees and expenses incurred in enforcing this provision or
collecting any sums due hereunder), consultant and expert fees, together with
all other costs and expenses of any kind or nature, including any and all
expenses of cleaning up or disposing of any such Hazardous and Regulated
Substances (collectively, "Environmental Damages"), that
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arise directly or indirectly in connection with the presence, suspected
presence, release or suspected or threatened release of any Hazardous and
Regulated Substances arising from or caused by Permittee's use of the Space or
Permittee's failure to perform the covenants of this Article 10. Permittee shall
have no responsibility for any Environmental Damages which preceded Permittee's
initial date of use of the Space. For the purpose of this provision, the Parties
mutually agree Permittee's initial date of Space use was January 16, 2000.
The obligations, covenants and agreements of Permittee contained in this
Article 10 shall survive termination of this Permit for any reason.
11. MASTER LEASE / COMPLIANCE WITH LAWS
11a. MASTER LEASE. It is expressly understood and agreed that if the lease
or operating authorization between the governing agency of the Airport and
Signature ("Master Lease") covering the Facility or Signature's right to conduct
business, is terminated, canceled or abated as to any portion of the Space, such
termination, cancellation or abatement will operate as a cancellation of this
Permit, and Signature shall be relieved of liability for any and all damages
Permittee may sustain as a result thereof. This Permit is subject to and
conditioned upon the prior written approval of the governing agency of the
Airport and the continuing authority and/or discretion of Signature to operate
at the Airport. Signature will promptly advise Permittee in writing of such
termination, cancellation or abatement.
11b. PERMIT SUBORDINATION TO MASTER LEASE. It is expressly agreed and
understood by Permittee that this Permit shall be subordinate at all times to
the Master Lease.
11c. COMPLIANCE WITH LAWS. Permittee agrees to abide by all applicable
laws, statutes, ordinances, orders, rules, regulations and requirements of all
federal, state and municipal governments and the appropriate agencies, officers,
departments, boards and commissions thereof and the board of underwriters and/or
the insurance rating organization or similar organization performing the same or
similar functions, whether now or hereafter in force, applicable to the Space or
any part thereof, as to the manner of use or occupancy or the maintenance,
repair or condition of the Space, and the usual and customary requirements of
the carriers of all insurance policies maintained by Signature on the Facility.
Without prejudice to the provisions of the foregoing paragraph, Permittee
shall comply with (and shall further cause its officers, directors, contractors,
subcontractors, agents, employees and invitees) to comply with and observe all
Signature rules and regulations as now in effect, and as modified from time to
time, concerning the use, operation, safety and good order of the Space,
provided that such rules and regulations are not inconsistent with the
provisions of this Permit.
12. ASSIGNMENT AND SUBLETTING
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12a. PROHIBITION AGAINST ASSIGNMENT OR TRANSFER. Permittee shall not
pledge, encumber, sell, assign or transfer this Permit, in whole or in part, by
operation of law or otherwise, or sublet, assign or transfer all or any part of
the Space, without Signature's prior written approval. Any attempted sale,
assignment, transfer or subletting in violation of this provision shall be
deemed null and void. Permittee shall not take any action or suffer action to be
taken which has the effect of transferring any rights herein to any person or
legal representative whether by operation of law or otherwise. Breach of this
covenant shall terminate Permittee's rights hereunder as of and from the date of
such transfer, action or sufferance.
12b. CONSENT BY SIGNATURE. The consent by Signature to any assignment,
sublet or transfer request shall not relieve Permittee from its obligation to
obtain the express prior consent of Signature to any further assignment, sublet
or transfer.
12c. PERMITTEE NOT RELIEVED OF OBLIGATIONS. Neither an assignment of
Permittee's interest in this Permit nor a subletting, occupancy or use of the
Space or any part thereof by any person or entity other than Permittee, nor the
collection of rent by Signature from any person or entity other than Permittee
as provided in this provision, nor the application of any such rent shall, in
any circumstances, relieve Permittee from its obligation fully to observe and
perform the terms, covenants and conditions of this Permit on Permittee's part
to be observed and performed.
13. CONDITION OF PREMISES
Without prejudice to the provisions of Article 6, Permittee shall accept
the Space in its "as is" condition on the effective date of this Permit and
Signature shall have no liability or obligation to make any alterations or
improvements of any kind on or about the Space or any portion.
14. PERMITTEE'S ALTERATIONS AND INSTALLATIONS
Permittee shall not install any fixtures or make, perform or permit the
making or performance of any alterations, additions, installations or
improvements or other physical changes to any portion of the Space, inclusive of
signage, without the prior written consent of Signature, which consent may be
granted or withheld in Signature's sole and absolute discretion. All fixtures
installed, personal property of Permittee, or additions and improvements made to
the Space by Permittee may be removed, provided Permittee is not then in default
hereunder, (a) from time to time in the ordinary course of Permittee's business
or in the course of reconstruction, renovation or alteration of the Facility or
Space by Permittee, with Signature's prior written consent in accordance with
the first sentence of this Article, and (b) during a reasonable period prior to
the expiration of the Term of this Permit, provided that Permittee shall
promptly repair, at its own expense, damage to any portion of the Facility
resulting from such installation and removal, with all such repairs or
restorations being in quality at least equal to the original work or
installation.
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15. INSURANCE
15a. INSURANCE COVERAGES. Permittee shall obtain and maintain at all times
during the term of this Permit, from financially solvent insurance
carrier(s) authorized to conduct business in the State of Indiana, the
following types and minimum amounts of insurance:
Workers' Compensation - per statutory coverage as prescribed by the
State of Indiana, as required, consistent with Permittee's use of the
Space;
Employer's Liability Insurance, in a minimum amount as set forth on
Exhibit A, a copy of which is attached hereto and incorporated herein,
as required, consistent with Permittee's use of the Space;
Commercial General Liability Insurance, inclusive of premises
liability, with a combined single limit set forth in Exhibit A,
insuring Permittee's liability against bodily injury to persons,
invitees, including passengers and damage to property;
All-Risk Property Insurance, with coverage to be commensurate with the
value of the Space's furnishings, equipment, tooling, spare parts and
other contents;
Automobile Liability Insurance, consistent with the coverage set forth
in Exhibit A, and an express representation specifying the policy's
effectiveness on airport premises.
15b. CERTIFICATES OF INSURANCE. All Permittee insurance is to be carried
by one or more insurance companies licensed to do business in the State where
this Permit is effective and approved by Signature. Signature shall be named as
an additional insured under the applicable liability policies and furnished duly
executed certificate(s) of all required insurance, together with satisfactory
evidence of the payment of the premiums therefore, on the date Permittee first
occupies the Space and, upon renewals of such policies, no less than thirty (30)
days prior to the expiration of the terms of such coverage. The insurance
policies of Permittee shall further provide at least thirty (30) days advance
written notice to Signature and Permittee of any material changes, cancellation,
non-renewal or changes adverse to the interests of Signature or Permittee.
It is expressly understood by Permittee that the receipt of any required
insurance certificate(s) by Signature hereunder does not constitute agreement
that the insurance requirements of this Permit have been fully met or that the
insurance policies indicated on the certificate are in compliance with all
requirements of this Permit. Further, the failure of Signature to obtain
certificates or other evidence of insurance from the Permittee shall not be
deemed a waiver by Signature. Non-conforming insurance shall not relieve
Permittee of its obligation to provide the insurance specified herein.
Nonfulfillment of the insurance conditions by Permittee hereunder may constitute
a material breach of this Permit and Signature retains the right to suspend the
Permit until proper evidence of insurance is provided or, in the continued
absence of such insurance evidence, terminate this Permit, in Signature's sole
discretion.
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15c. WAIVER OF SUBROGATION. All policies shall expressly waive the
underwriters and insurance carriers' right of subrogation against Signature
and/or its insurance carriers.
15d. PRIMARY INSURANCE. Consistent with the indemnification provisions of
this Permit, Permittee's insurance policies will respond on a primary basis,
with any insurance carried by Signature to be construed as secondary or excess
insurance.
15e. PERMITTEE'S LIABILITY NOT LIMITED. NOTWITHSTANDING THE PROVISIONS OF
THIS SECTION, FOR PURPOSES OF THIS PERMIT, PERMITTEE ACKNOWLEDGES THAT ITS
POTENTIAL LIABILITY IS NOT LIMITED TO THE AMOUNT OF LIABILITY INSURANCE COVERAGE
IT MAINTAINS NOR TO THE LIMITS REQUIRED HEREIN.
15f. INVALIDATION OR CONFLICT WITH EXISTING INSURANCE POLICIES. Permittee
shall not do, permit or suffer to be done any act, matter, thing or failure to
act in respect to the Space that will a) invalidate or be in conflict with any
insurance policies covering the Space, the Facility or any part thereof;
b) increase the rate of insurance on the Space or any property located therein.
If, by reason of the failure of Permittee to comply with the provisions of this
Permit, the insurance rate shall at any time be higher than it otherwise would
be, then Permittee shall reimburse Signature and any other Facility tenants, on
demand, for that part of all premiums for any insurance coverage that shall have
been charged because of such actions by Permittee.
15g. SIGNATURE INSURANCE. During the Term of this Permit, Signature shall
maintain, at Signature's expense, liability insurance, fire insurance with
extended coverage and other insurance on Signature's leased premises with
coverages and in amounts not less than those which are from time to time
acceptable and customary to a prudent fixed base operator; provided, however,
that such liability coverage shall not be less than that required of Permittee
during the Term of this Permit.
16. INDEMNIFICATION
16a. INDEMNIFICATION BY PERMITTEE. Subject to the provisions of Article
17, Permittee agrees to indemnify, defend and hold harmless Signature
(including, without limitation, Signature's subsidiaries, affiliates and parent
company as now or hereafter constituted), the Airport and their respective
officers, directors, agents, tenants, customers, contractors, subcontractors,
invitees, guests and employees from and against any and all liabilities,
damages, losses, claims, suits, fines, penalties or judgments, of any kind
whatsoever (including those arising from third parties), including all costs,
reasonable attorneys' fees and expenses incidental thereto (hereinafter
collectively referred to as, "Damages"), which may be suffered by or charged to
Signature by reason of any loss of or damage to any property or injury to or
death of any person arising out of or by reason of any breach, violation or
non-performance by Permittee or its officers, directors, agents, contractors,
subcontractors, invitees, guests and employees of any covenant or condition of
this Permit or by any act or omission of those persons, excepting those Damages
caused by the gross negligence or willful misconduct of Signature.
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16b. INDEMNIFICATION BY SIGNATURE. Subject to the provisions of Article
17, Signature agrees to indemnify, defend and hold harmless Permittee
(including, without limitation, Permittee's subsidiaries, affiliates and parent
company as now or hereafter constituted), the Airport and their respective
officers, directors, agents, tenants, customers, contractors, subcontractors,
invitees, guests and employees from and against any and all Damages, which may
be suffered by or charged to Permittee by reason of any loss of or damage to any
property or injury to or death of any person arising out of or by reason of any
breach, violation or non-performance by Signature or its officers, directors,
agents, contractors, subcontractors, invitees, guests and employees of any
covenant or condition of this Permit or by any act or omission of those persons,
excepting those Damages caused by the gross negligence or willful misconduct of
Permittee.
The foregoing indemnifications expressly exclude all Environmental
Damages, as defined in Article 10 herein, and shall survive the termination or
expiration of this Permit and shall not be construed to negate or abridge any
other obligation of indemnification running to the opposite party which would
exist at common law or under other provisions of this Permit and the extent of
the obligation of indemnification shall not be limited by any provision of
insurance undertaken in accordance with this Permit.
17. DISCLAIMER OF LIABILITY
THE PARTIES HEREBY AGREE THAT UNDER NO CIRCUMSTANCES SHALL EITHER PARTY
BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR
EXEMPLARY DAMAGES, WHETHER IN CONTRACT OR TORT (INCLUDING STRICT LIABILITY AND
NEGLIGENCE), SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE, DIMINUTION OR LOSS OF
VALUE, LOSS OF USE, LOSS OF ANTICIPATED PROFITS OR THE COST ASSOCIATED WITH
SUBSTITUTE OR REPLACEMENT AIRCRAFT.
18. FORCE MAJEURE
Neither Signature nor Permittee shall be liable for their failure to
perform under this Permit (or for any loss, injury, damage or delay of any
nature whatsoever resulting therefrom) caused by any act of God, act of nature,
fire, flood, wind storm, strike, labor dispute, riot, insurrection, war or any
other cause beyond either Party's control.
19. DEFAULT
(a) It shall be considered a default of this Permit if: (a) Permittee
shall fail to make timely payments required hereunder on the date due and said
default shall continue for ten (10) days after receipt by Permittee of notice
thereof from Signature; (b) Permittee shall fail to perform any other material
covenant herein, and such default shall continue for a period of thirty (30)
days after receipt by Permittee of written notice of said default from
Signature; (c) Signature shall fail to perform any of its covenants, agreements
and material undertakings contained herein and said default shall continue for a
period of thirty (30) days after receipt by Signature of written notice from
Permittee,
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provided, however, that should Signature initiate corrective action in response
to a notification of default within thirty (30) days and the nature of the
corrective action required precludes Signature from rectifying such default
within thirty (30) days, then Signature shall be permitted the reasonable
additional time as may be required to pursue, through its best and most diligent
efforts, the required corrective action to completion without being adjudicated
non-responsive or in default under the terms of this Permit; (d) either of the
Parties shall cease to do business as a going concern; (e) a petition is filed
by or against either Party under the Bankruptcy Act or any amendment thereto
(including a petition for reorganization or an arrangement) or under any other
debtor protection laws; or (f) either Party assigns its property for the benefit
of creditors. In the event of any default hereunder, either Party shall, at its
option and without further notice, have the right to terminate this Permit. In
the event Signature terminates this Permit, it shall have the right to remove
the personal property of Permittee from the Space, in the event Permittee does
not forthwith vacate and surrender the Space and remove its personal property.
In the event either Party shall institute any action for the enforcement of its
rights under this Permit, the prevailing Party shall be reimbursed by the other
Party for its reasonable attorneys' fees in addition to any other damages
recoverable in such action.
(b) The assignment, transfer or encumbering of this Permit or the
subletting of the Space in a manner not permitted by Article 12 hereunder, shall
be considered to be a default.
(c) It shall further be considered a default if there is a taking of this
Permit or the Space, or any part thereof, upon execution or by other process of
law directed against Permittee, or upon or subject to any attachment at the
instance of any creditor of or claimant against Permittee, which execution or
attachment shall not be discharged or disposed of within thirty (30) days after
the levy thereof; or the vacating or abandonment of the Space by Permittee.
20. TAXES, ASSESSMENTS AND FEES
Permittee shall be solely responsible for the payment of all taxes,
assessments, license fees or other charges that may be levied or assessed during
the Term of this Permit upon or against any personal property or equipment
located within or on the Space which is owned by, leased to or in the care,
custody and control of the Permittee.
21. GOVERNING LAW / VENUE
This Permit shall be construed, interpreted and enforced in accordance
with the laws of the State of Indiana.
22. MEDIATION /ARBITRATION
(a) If a dispute arises from or relates to this Permit or the breach
thereof and if the dispute cannot be settled through direct discussions, the
Parties agree to first endeavor to settle the dispute by mediation to be held
within thirty (30) days from
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demand by either party, to be administered by the American Arbitration
Association (AAA) under its Commercial Dispute Resolution Procedures. If the
matter cannot be resolved by mediation, any unresolved controversy or claim
arising from or relating to this contract or breach thereof shall be settled
exclusively by arbitration administered by the AAA in accordance with its
Commercial Dispute Resolution Procedures, with the Parties splitting the costs
of arbitration evenly. Any demand for arbitration must be filed within one (1)
year of the conclusion of the mediation session in which an impasse was reached
or any unresolved controversy remained. Judgment on any award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof.
(b) With regard to the arbitration process, in the event of a conflict
between this clause and applicable State law, arbitration shall be governed by
Title 9 of the US Code (United States Arbitration Act) and the Commercial
Dispute Resolution Procedures of the AAA.
(c) Either Party may, without inconsistency with this Permit, seek from a
court any interim or provisional relief that is necessary to protect the rights
or property of that Party, pending the establishment of the arbitral tribunal
(or pending the arbitral tribunal's determination of the merits of the
controversy).
(d) Mediation and arbitration shall be held in Orlando, Orange County,
Florida, or at any other place selected by mutual agreement of the Parties.
(e) A mediator shall be selected by mutual agreement of the Parties. If
the Parties cannot agree, then by the AAA.
(f) An arbitration shall be by a single arbitrator, unless the Parties
mutually agree to more than one. AAA shall provide a list of neutral
arbitrators, from which the Parties shall select an arbitrator.
(g) The arbitrator(s) shall have the authority to award any remedy or
relief that a court in the applicable State could order or grant, including,
without limitation, specific performance, attorneys' fees, if otherwise provided
in this Permit, and costs, the issuance of an injunction, or the imposition of
sanctions for abuse or frustration of the arbitration process and costs.
(h) Neither a Party nor an arbitrator may disclose the existence,
content, or results of any mediation or arbitration hereunder without the prior
written consent of both Parties.
(i) The Parties shall allow and participate in limited discovery for a
period of ninety (90) days after the filing of an answer or another responsive
pleading to the demand for arbitration. Limited discovery shall mean no more
than three (3) depositions (including one (1) expert) and no more than
twenty-five (25) interrogatories and requests for admissions. The arbitrators
can expand discovery only for good cause shown. The final arbitration hearing
must be held within one hundred twenty (120) days of the initial demand for
arbitration unless continued by the arbitrators, and only for good cause shown.
(J) THE PARTIES STIPULATE THAT TRIAL BY JURY IS WAIVED.
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(k) The arbitration award shall be in writing, and upon the request of a
Party, include findings of fact and conclusions of law.
(l) The arbitrator(s) shall award to the substantially prevailing Party
all of the Party's costs and fees. "Costs and fees" mean all reasonable preaward
expenses of the arbitration, including the arbitrators' fees, administrative
fees, travel expenses, out-of-pocket expenses such as copying and telephone,
court costs, witness fees and attorneys' fees.
23. INDEPENDENT CONTRACTOR
The relationship between Signature and Permittee shall be that of
permitor and permittee. Signature and Permittee shall act at all times as
independent contractors and nothing contained herein shall be construed to
create the relationship of principal and agent nor employer and employee.
Additionally, neither Party shall be considered the partner, joint venturer,
agent, fiduciary, bailee or trustee of the other and neither Party shall be
responsible for the acts or omissions of the other.
24. RIGHTS NOT WAIVED
No failure by Signature to insist upon the strict performance of any
term, covenant, agreement, provision, condition or limitation of this Permit or
to exercise any right or remedy consequent upon a breach thereof, and no
acceptance by Signature of full or partial rent during the continuance of any
such breach or application of the security deposit in light of any breach, shall
constitute a waiver of any such breach or of any such term, covenant, agreement,
provision, condition, limitation, right or remedy. No term, covenant, agreement,
provision, condition or limitation of this Permit to be kept, observed or
performed by Signature or by Permittee, and no breach thereof, shall be waived,
altered or modified except by a written instrument executed by Signature or by
Permittee, as the case may be. No waiver of any breach shall affect or alter
this Permit, but each and every term, covenant, agreement, provision, condition
and limitation of this Permit shall continue in full force and effect with
respect to any other then existing or subsequent breach thereof.
25. REMEDIES CUMULATIVE
The rights and remedies with respect to any of the terms and conditions
of this Permit shall be cumulative and not exclusive and shall be in addition to
all other rights and remedies. The waiver by either Party of any covenant or
condition of this Permit shall not preclude such Party from demanding
performance thereafter in accordance with the terms hereof.
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26. NOTICES
Any notice given by one Party to the other in connection with this Permit
shall be in writing and shall be sent by U.S. certified mail, return receipt
requested, via hand delivery (with advance copy to be forwarded via facsimile):
(1) If to Signature, addressed to:
Signature Combs Inc.
Attention: General Manager
P.O. Box 51568
Indianapolis Int'l Airport
Indianapolis, IN 46251
Facsimile: 317-248-4962
--and--
Signature Flight Support Corporation
Attention: Director of Contracts
201 South Orange Avenue, Suite 1100
Orlando, Florida 32801
Facsimile: (407) 648-7352
(2) If to Permittee, addressed to:
Chautauqua Airlines
Attention: Jeff Domrese
2500 S. High School Rd.
Indianapolis,
IN 46251 Facsimile:___________
Notice shall be deemed to have been given on the date of receipt as shown
on the return receipt or facsimile confirmation document.
27. INTEGRATION
It is mutually agreed and understood that this Permit (and any exhibits,
amendments and addendums duly entered into between the Parties) contains the
final and entire agreement between the Parties. The Parties shall not be bound
by any terms, statements, conditions or representations, oral or written,
express or implied, not herein contained. Any change or modification to this
Permit must be in writing, signed by both Parties, as of its effective date, and
supercedes all prior independent agreements between the Parties related to the
use of the Space at the Airport.
28. SUCCESSORS BOUND
Except as otherwise provided herein, this Permit shall be binding upon,
and shall inure to the benefit of the Parties hereto, and each of their
respective heirs, legal representatives, successors and assigns.
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29. PREMISES SECURITY
The Space which is the subject of this Permit is located within the
boundaries of the Airport's perimeter fence and situated on the AOA. Signature
and Permittee represent their activities shall adhere at all times to the
prevailing Airport and Federal Aviation Administration security regulations set
forth within Federal Air Regulation (FAR) Part 107.
30. TIME IS OF THE ESSENCE
Time is of the essence in the performance of all Permittee's obligations
under this Permit.
31. SEVERABILITY OF PROVISIONS
If any provision of this Permit shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not be affected thereby.
32. BASIS OF BARGAIN
Permittee acknowledges that it is familiar with the operation of aircraft
hangar facilities, aircraft storage areas, parking ramp areas and has inspected
the Space and surrounding Facility. Permittee further acknowledges that it is
aware that aircraft will be operated, stored and maintained in and around the
Facility where the Space is located and that there are certain dangers inherent
in the storage of aircraft and operation of such facilities. Permittee
acknowledges that it has considered these dangers along with the benefits which
flow to Permittee as a result of this Permit and that such considerations
constitute part of the basis for the bargain reached herein between Signature
and Permittee. Specifically, Permittee understands that its obligations to
Signature with regard to the specified insurance coverages and Permittee's
indemnification and limitation of liability as to Signature constitute a
material consideration for Signature to agree to enter into this Permit.
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IN WITNESS WHEREOF, the Parties have executed this Permit as of the day
and year first above written.
(Signature) (Permittee)
SIGNATURE COMBS INC. Chautauqua Airlines
/s/ Philip S. Kerr /s/ Jeff Domrese
- -------------------------- -----------------------
By: Philip S. Kerr By: Jeff Domrese
Its: General Manager Its: Director of Maintenance
------------------------
Date: Jan 16, 2001 Date: 1/16/01
--------------- ----------------
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EXHIBIT A
MAIL CERTIFICATES TO: SIGNATURE INSURANCE DEPARTMENT, P.O. BOX 9085, MISSION
VIEJO, CALIFORNIA 92690-9085 ATTENTION: MR. LEE ROTH
INSURANCE COMPANY FINANCIAL STRENGTH REQUIREMENTS
- AM Best Rating : B+
- Financial Size : V
MINIMUM INSURANCE LIMITS FAR SFSC CUSTOMERS, TENANTS & VENDORS
entering or using SFSC ramp and/or hangars as services apply and/or
construction /vendor activity:
- - LIABILITY - AIRPORT PREMISES:
- - Commercial General *for products and completed operations
- - Tie Downs/T Hangars/Office Combined Single Limit $2,000,000 per occurrence*
- - All Others Combined Single Limit $5,000,000 per occurrence*
- - Auto Combined Single Limit $5,000,000 per occurrence
- - Environmental/Pollution
- - LIABILITY - OFF AIRPORT PREMISES
- - Auto Combined Single Limit $1,000,000 per occurrence
- - Commercial General Combined Single Limit $1,000,000 per occurrence
for products and completed operations
- - LIABILITY OTHER:
Builders Risk "All Risk", Full Completed Value of Project and
must include "Delay in Start-Up"
- - Professional (Errors & Combined Single Limit $ 5,000,000 per occurrence
Omissions)
- - PROPERTY
- - Property "All Risk", Full Replacement Value
- - WORKER'S COMPENSATION & EMPLOYER'S LIABILITY:
- - Worker's Compensation Statutory
- - Employer's Liability $1,000,000 each occurrence for bodily injury by
accident
$ 1,000,000 each occurrence for bodily injury by
disease
$1,000,000 policy limit for bodily injury by
disease
SPECIAL PROVISIONS FOR CERTIFICATE OF INSURANCE: All such required liability
insurance, except Automobile, Workers Compensation and Employers Liability shall
name Signature Flight Support Corporation (SFSC) and its subsidiaries as
additional insureds. If the required liability polices do not contain a standard
separation of insured provision, they shall be endorsed to provide cross
liability coverage. All required insurance policies, except Workers
Compensation, Employers Liability and Automobile Liability shall contain a
waiver of subrogation in favor of Signature Flight Support Corporation and its
subsidiaries. All required insurance policies shall be evidenced by Certificates
of Insurance, which provide at least thirty (30) days advance written notice of
any cancellation or changes adverse to the interests of Signature Flight Support
Corporation and its subsidiaries.
NOTE: MINIMUM INSURANCE AMOUNTS STATED CANNOT BE LOWERED WITHOUT EXPRESS WRITTEN
CONSENT OF SIGNATURE FLIGHT SUPPORT CORPORATION. HIGHER INSURANCE LIMITS
REQUIRED BY AIRPORT AUTHORITIES WILL SUPERSEDE THE LIMITS STATED ABOVE AND WILL
REQUIRE VERIFICATION AND POSSIBLE COVERAGE AND PREMIUM INCREASES.
REVISED: 1/10/00MSB
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