EXHIBIT 10.14
TA-121
USE AND OCCUPANCY AGREEMENT
BETWEEN
PAN AMERICAN WORLD AIRWAYS, INC.
AND
ATLANTIC AVIATION CORPORATION
TETERBORO AIRPORT
C O N T E N T S
Section
Number Title Page
- ------ ----- ----
1. Term 1
2. Rights of User 1
3. Construction by User 2
4. Other Construction by the User 10
5. Fees to Pan American 10
6. Time of Payment and Computation of Amounts 14
7. Care, Maintenance and Repair 15
8. Obstruction Lights 16
9. Insurance 17
10. Indemnity, Liability Insurance 19
11. Ingress and Egress 20
12. Various Obligations of the User 21
13. Prohibited Acts 24
14. Rules and Regulations 26
15. Signs 26
16. Assignment 26
17. Condemnation 27
18. Non-Discrimination 29
19. Governmental Requirements 30
20. Rights of Entry Reserved 31
21. Basic Agreement 32
22. Patents, Trademarks 32
23. Additional Fees and Charges 32
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Section
Number Title Page
- ------ ----- ----
24. Right of Re-Entry 33
25. Surrender 33
26. Termination by Pan American 33
27. Services by User 35
28. Survival of the Obligations of the User 37
29. Use Subsequent to Cancellation or Termination 37
30. Remedies to be Non-Exclusive 38
31. Limitation of Rights and Privileges Granted 38
32. Removal of Personal Property 38
33. Brokerage 39
34. Notices 39
35. Construction and Application of Terms 39
36. Non-Liability of Individuals 39
37. Abatement 39
38. Port Authority Consent 40
39. Entire Agreement 40
Exhibit A
Exhibit B
Exhibit C
Consent Agreement
ii
USE AND OCCUPANCY AGREEMENT
THIS AGREEMENT, made as of February 14, 1979 by and between PAN AMERICAN WORLD
AIRWAYS, INC., Pan Am Building, New York, New York 10017 (hereinafter called
"Pan American"), and ATLANTIC AVIATION CORPORATION, a Delaware Corporation
(hereinafter called "the User"), having an office and place of business at
Teterboro Airport, Teterboro, New Jersey 07608,
WITNESSETH THAT:
WHEREAS, the Port Authority of New York and New Jersey (hereinafter called "the
Port Authority") is the owner of Teterboro Airport (hereinafter called "the
Airport") located in the Boroughs of Teterboro, Moonachie and Hasbrouck Heights
and in the Township of Lyndhurst, County of Bergen in the State of New Jersey;
and,
WHEREAS, Pan American is the operator of the Airport and has the right to
operate and use the Airport under an agreement between Pan American and the Port
Authority dated September 19, 1967 (hereinafter called "the Basic Agreement");
and,
WHEREAS, the User desires to use and occupy the area of the Airport shown on
Exhibit A as herein described and to make certain improvements thereto;
NOW, THEREFORE, for and in consideration of the respective promises and mutual
agreements made by the parties hereto hereinafter set forth Pan American hereby
grants to the User the right to use and occupy the ground areas at the Airport
identified as AREA "A" and AREA "B" as shown in diagonal hatching on Exhibit A
attached hereto and made a part hereof, together with all buildings, structures,
improvements, additions and permanent installations constructed and installed
thereon or therein (hereinafter called "the Space") during the term of this
Agreement upon the following terms and conditions and it is hereby mutually
agreed as follows:
1. Term
The term of this Agreement shall commence as of February 14, 1979
(hereinafter called "the effective date"), and, unless sooner
terminated, shall expire on December 30, 1999.
2. Rights of User
2.1 User shall use AREA B for the parking and servicing of aircraft only
and for no other purposes whatsoever;
2.2 User shall use AREA A for the following purposes and for no other
purpose whatsoever:
2.2.1 for the storage, maintenance servicing, overhaul, modification and
repair of aircraft, aircraft assemblies, aircraft accessories and
aircraft radio and electronic equipment and any component parts
thereof, subject to the provisions of 27.2.5 hereof;
2.2.2 for the sale of aircraft, aircraft assemblies, aircraft accessories,
aircraft radio and electronic equipment and any component parts
thereof;
2.2.3 for the operation, leasing and chartering of general aviation aircraft;
2.2.4 for, passenger air taxi operations under Part 298 of 14CFR and for all
cargo operations under said Part not conducted on a regularly scheduled
basis;
2.2.5 for the parking of automobiles and other vehicles operated by officers,
employees, invitees and business visitors of the User; it being
understood that the parking of automotive vehicles on areas of the
Space shall be subject to the prior and continuing approval of the
Airport Manager;
2.2.6 for the parking of aircraft;
2.2.7 for the conduct of pilot training;
2.2.8 for business and operations offices in connection with purposes
authorized hereunder;
2.2.9 for solicitation and sale of aviation insurance and the financing of
general aviation aircraft sold by User;
2.2.10 for the sale of aviation fuel and aviation lubricants and for delivery
of such fuel and lubricants to and into aircraft, all in accordance
with the provisions of other agreements entered into or to be entered
into between Pan American and the User specifically regulating such
sales and deliveries and providing for the payment of fees therefor and
only for such period or periods as said agreements continue in effect.
2.2.11 Notwithstanding the right granted to User to conduct pilot training
hereunder, Pan American hereby reserves the right to restrict or
terminate touch-and-go flight operations and to restrict the time
primary flight training operations may be conducted at the Airport
when, in its sole judgment, such action is deemed necessary for Airport
safety.
2.2.12 All flight operations conducted at the Airport by the User shall be
subject to the Schedule of Charges pertaining thereto in addition to
all other fees payable by the User hereunder.
3. Construction by User
3.1 The User agrees to construct on the Space the following facilities;
3.1.1 an aircraft hangar consisting approximately 30,000 square feet together
with 5,000 square feet of shops; and
3.1.2 approximately 7,500 square feet of office and lounge area; and
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3.1.3 paving to accommodate 150 auto parking spaces,
3.1.4 together with the clearing and grading of the ground area contained
within the Space and the installation on or in the Space such utilities
as may be appropriate or necessary for the utilization of the Space for
the purposes the User is permitted to use the same under Section 2
hereof, all in ____________________________.
3.2 The User agrees to complete the construction of the facilities set
forth in subsection 3.1 above on or before eighteen (18) months from
the effective date hereof, provided, however, the User shall not be
held in default under this subsection in the event construction cannot
be completed within the said time limit due to acts of God or work
stoppages.
3.3 Prior to the commencement of construction of the facilities set forth
in subsection 3.1 above, or any part thereof, User shall submit to Pan
American a construction application and complete plans and
specifications of such proposed construction.
3.3.1 The plans and specifications shall be submitted by Pan American to the
Port Authority for approval and Pan American or the Port Authority may
refuse to grant approval if, in their opinion, the proposed facilities
as laid out and indicated by the User on such plans, or if constructed
according to such plans and specifications, the facilities:
3.3.1.1 will be structurally unsound or unsafe or hazardous for human occupancy
or improper for the use and occupancy for which it is designed;
3.3.1.2 will not comply with all the requirements of this Agreement;
3.3.1.3 will not comply with Pan American's or the Port Authority's standards
for harmony of external architecture of similar or future construction
at the Airport;
3.3.1.4 will not comply with the standards set by Pan American or the Port
Authority with respect to utility or rentability;
3.3.1.5 will be so located that there will not be sufficient clearances in
respect to existing or planned projecting aprons, runways or taxiways
adjacent thereto;
3.3.1.6 is designed for use for purposes other than those for which User is
permitted to use the Space under this Agreement;
3.3.1.7 will be in violation of any local code, OSHA-70, NFPA as it pertains to
hangars and the National Electric Code or any other law, ordinance or
regulation of any governmental authority having jurisdiction over the
Airport if the Port Authority were a private corporation.
3.3.1.8 will not be compatible with external and interior building materials
and finishes of similar existing or future construction at the Airport;
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3.3.1.9 will set forth ground elevations or heights other than those that are
consistent with the proper operation and use of the Airport;
3.3.1.10 will not provide adequate circulation arteries for vehicular and
pedestrian traffic and fire-fighting equipment;
3.3.1.11 will not be at locations or not be oriented in accordance with the
approved comprehensive plans for the Airport.
3.4 Upon approval of such plans and specifications by Pan American and the
Port Authority the User shall proceed expeditiously and with all
reasonable diligence to construct, at its own expense and cost, the
facilities in accordance with such approved plans and specifications.
3.4.1 The User or User's construction contractor shall furnish Pan American
performance and payment bonds in a sum equal to the estimated cost of
construction, in a form and with sureties satisfactory to Pan American,
for the faithful performance by User of its construction obligations
contained in this Agreement and for the guarantee of payment of all
claims of materialmen, workmen and subcontractors. User shall deliver
such bonds to Pan American prior to commencement of construction or
within thirty (30) days after the award by User of construction
contract or contracts, whichever occurs first.
3.5 Upon completion of any work to be performed by User hereunder, title
thereto shall immediately and without execution of any further
instrument vest in the Port Authority and such work shall thereupon
become and thereafter be a part of the Airport.
3.6 All construction work shall be done in accordance with the following
terms and conditions:
3.6.1 The User hereby assumes the risk of loss or damage to all of the
construction work prior to the completion thereof and the risk of loss
or damage to all property of Pan American and of the Port Authority
arising out of or in connection with the performance of the
construction work. In the event of such loss or damage, the User shall
forthwith repair, replace and make good the construction work and the
property of Pan American or of the Port Authority without cost or
expense to Pan American. The User shall itself and shall also require
its contractors to indemnify and hold harmless Pan American, its
Directors, officers, agents and employees from and against all claims
and demands, just or unjust, of third persons (including employees,
officers, and agents of Pan American) arising or alleged to arise out
of the performance of the construction work and for all expenses
incurred by it and by them in the defense, settlement or satisfaction
thereof, including without limitation thereto, claims and demands for
death, for personal injury or for property damage, direct or
consequential, whether they arise from the acts or omissions of the
User, of any contractors of the User, of Pan American or of third
persons, or from acts of God or of the public enemy, or otherwise
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(including claims of the Port Authority of New York and New Jersey
against Pan American pursuant to the Basic Agreement whereby Pan
American has agreed to indemnify the Port Authority against claims
excepting only claims and demands which result solely from negligent
acts done by Pan American, its Directors, officers, agents and
employees subsequent to the commencement of the construction work.
3.6.2 Prior to engaging or retaining an architect or architects for the
construction work, the name or names of said architect or architects
shall be submitted to Pan American for its approval. Pan American shall
have the right to disapprove any architect who may be unacceptable to
it. All construction work shall be done in accordance with plans and
specifications to be submitted to and approved by Pan American and the
Port Authority prior to the commencement of the construction work, and
until such approval has been obtained the User shall continue to
resubmit plans and specifications as required. Upon approval of such
plans and specifications the User shall proceed diligently at its sole
cost and expense to perform the construction work. All construction
work, including workmanship and materials, shall be of first class
quality. The User shall re-do, replace or reconstruct at its own cost
and expense, any construction work not done in accordance with the
approved plans and specifications, the provisions of this Section or
any further requirements of Pan American made in accordance with this
Agreement.
3.6.3 Prior to entering into a contract for any part of the construction
work, the User shall submit to Pan American for its approval the names
of the contractors to whom the User proposes to award said contracts.
Pan American shall have the right to disapprove any contractor who may
be unacceptable to it. The User shall include in all such contracts
such provisions and conditions as may be required by Pan American
including, without limitation thereto, the provisions set forth in
Exhibit B attached hereto and hereby made a part hereof.
3.6.4 The User shall furnish or require its architect to furnish a resident
engineer during the construction period as Pan American may require.
The User shall require certification by a licensed engineer of all pile
driving data and of all controlled concrete work and such other
certifications as may be requested by Pan American from time to time.
3.6.5 The User agrees to be solely responsible for any plans and
specifications used by it and for any loss or damages resulting from
the use thereof, notwithstanding the same have been approved by Pan
American and the Port Authority notwithstanding the incorporation
therein of Pan American or Port Authority recommendations or
requirements. Notwithstanding the requirements for approval by Pan
American of the contracts to be entered into by the User on the
incorporation therein of Pan American requirements or recommendations,
and notwithstanding any rights Pan American may have reserved to itself
hereunder, Pan American shall have no liabilities or obligations of any
kind to any contractors engaged by the User or for any other matter in
connection therewith
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and the User hereby releases and discharges Pan American, its
Directors, officers, representatives and employees of and from any and
all liability, claims for damages or losses of any kind, whether legal
or equitable, or from any action or cause of action arising or alleged
to arise out of the performance of any construction work pursuant to
the contracts between the User and its contractors. Any warranties
contained in any construction contract entered into by the User for the
performance of the construction work hereunder shall be for the benefit
of Pan American and the Port Authority as well as the User.
3.6.6 Pan American shall have the right, through its duly designated
representatives, to inspect the construction work and the plans and
specifications thereof, at any and all times during the progress
thereof and from time to time, in its discretion, to take samples and
perform testing on any part of the construction work.
3.6.7 The User agrees that it shall deliver to Pan American "as-built"
drawings (capable of being reproduced) of the construction work and
shall during the term of this Agreement keep said drawings current
showing thereon any changes or modifications which may be made. (No
changes or modifications to be made without Pan American's consent.)
3.6.8 The User shall, if requested by Pan American, take all reasonable
measures to prevent erosion of the soil and the blowing of sand and
soil during the performance of the construction work, including but not
limited to the fencing of the space or portion thereof and the covering
of open areas with asphaltic emulsion or similar materials as Pan
American may direct.
3.6.9 The User shall pay or cause to be paid all claims lawfully made against
it by its contractors, subcontractors, materialmen and workmen, and all
claims lawfully made against it by other third persons arising out of
or in connection with or because of the performance of the construction
work, and shall cause its contractors and subcontractors to pay all
such claims lawfully made against them, provided, however, that nothing
herein contained shall be construed to limit the right of the User to
contest any claim of a contractor, subcontractor, materialman, workman
and/or other person and no such claim shall be considered to be an
obligation of the User within the meaning of this Section unless and
until the same shall have been finally adjudicated. The User shall use
its best efforts to resolve any such claims and shall keep Pan American
fully informed of its actions with respect thereto. The User shall
require its construction contractor to furnish a bond for the faithful
performance of all obligations imposed upon the contractor by the
construction contract and also for the payment of all lawful claims of
subcontractors, materialmen and workmen arising out of the performance
of said construction contract.
3.6.10 The User shall procure and maintain comprehensive general liability
insurance, including automotive, with a contractual liability
endorsement covering the obligations assumed by the User pursuant to
this Section 3 which shall be in addition to all policies of insurance
otherwise required under the Agreement or
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the User may provide such insurance by requiring each contractor
engaged by it for the construction work to procure and maintain such
insurance including such contractual liability endorsement, said
insurance not to contain any care, custody or control exclusions, any
exclusions for explosions, collapses or damage to underground utilities
or facilities, and not to contain any exclusion for bodily injury to or
sickness, disease or death of any employee of the User or of any of its
contractors which would conflict with or in any way impair coverage
under the contractual liability endorsement. Said insurance shall name
Pan American and the Port Authority as an additional insured and be in
not less than the following amounts:
(i) Bodily Injury Liability:
For injury to or wrongful death to one person.................... $1,000,000
For injury or wrongful death to more than one
person for any one occurrence.................................. $3,000,000
Aggregate Products Completed Operations.......................... $3,000,000
(ii) Property Damage Liability:
For all damage arising out of injury to or destruction
of property in any one occurrence.............................. $3,000,000
Aggregate Products Completed Operations.......................... $3,000,000
Aggregate Operations............................................. $3,000,000
Aggregate Productive............................................. $3,000,000
Aggregate Contractual............................................ $3,000,000
The insurance required hereunder shall be maintained in effect during
the performance of the construction work. A certified copy of each of
the policies or a certificate or certificates evidencing the existence
thereof, or binders, shall be delivered to Pan American at least
fifteen (15) days prior to the commencement of any work. In the event
any binder is delivered, it shall be replaced within thirty (30) days
by a certified copy of the policy or a certificate. Each such copy or
certificate shall contain a valid provision or endorsement that the
policy may not be cancelled, terminated, changed or modified without
giving fifteen (15) days' written advance notice thereof to Pan
American and the Port Authority. The aforesaid insurance shall be
written by a company or companies approved by Pan American, Pan
American agreeing not to withhold its approval unreasonably. If at any
time any of the insurance policies shall be or become unsatisfactory to
Pan American as to form or substance or if any of the carriers issuing
such policies shall be or become unsatisfactory to Pan American, the
User shall promptly
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obtain a new and satisfactory policy in replacement, Pan American
agreeing not to act unreasonably hereunder.
3.6.11 The User shall prior to the commencement of the construction work at
all times during the construction work submit to Pan American all
engineering studies with respect to the construction work and samples
of construction materials as may be required at any time and from time
to time by Pan American.
3.6.12 The User shall procure and maintain or cause to be procured and
maintained Builder's Risk Completed Value Insurance covering the
construction work during the performance thereof including material
delivered to the construction site but not attached to the realty. Such
insurance shall name Pan American, the Port Authority, the User and its
contractors and subcontractors as additional assureds and such policy
shall provide that the loss shall be adjusted with and payable to the
User. Such proceeds shall be used by the User for the repair,
replacement or rebuilding of the construction work and any excess shall
be paid over to Pan American. The policies or certificates representing
this insurance shall be delivered by the User to Pan American prior to
the commencement of construction and each policy or certificate
delivered shall bear the endorsement of or be accompanied by evidence
of payment of the premium thereon and, also, a valid provision
obligating the insurance company to furnish the Port Authority and Pan
American fifteen (15) days' advance notice of the cancellation,
termination, change or modification of the insurance evidenced by said
policy or certificate. The insurance shall be written by companies
approved by Pan American, Pan American agreeing not to withhold its
approval unreasonably. If at any time any of the insurance policies
shall be or become unsatisfactory to Pan American as to form or
substance or if any of the carriers issuing such policies shall be or
become unsatisfactory to Pan American, the User shall promptly obtain a
new and satisfactory policy in replacement, Pan American agreeing not
to act unreasonably hereunder.
3.6.13 Nothing contained in this Agreement shall grant or be deemed to grant
to any contractor, architect, supplier, subcontractor or any other
person engaged by the User or any of its contractors in the performance
of any part of the construction work any right of action or claim
against Pan American, its Directors, officers, agents and employees or
the Port Authority, its Commissioners, officers, agents and employees
with respect to any work any of them may do in connection with the
construction work. Nothing contained herein shall create or be deemed
to create any relationship between Pan American and any such
contractor, architect, supplier, subcontractor or any other person
engaged by the User or any of its contractors in the performance of any
part of the construction work and neither Pan American nor the Port
Authority shall be responsible to any of the foregoing for any payments
due or alleged to be due thereto for any work performed or materials
purchased in connection with the construction work.
3.6.14 When the construction work is substantially completed and is ready for
use by the User, the User shall advise Pan American to such effect and
shall deliver to Pan
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American a certificate by an authorized officer of the User certifying
that such construction work has been constructed strictly in accordance
with the approved plans and specifications and the provisions of this
Agreement and in compliance with all applicable laws, ordinances and
governmental rules, regulations and orders. Thereafter, such
construction work will be inspected by Pan American and if the same has
been completed as specified by the User, a certificate to such effect
shall be delivered to the User, subject to the condition that all risks
thereafter with respect to the construction and installation of the
same and any liability therefor for negligence or other reason shall be
borne by the User. The User shall not use or permit the use of the
construction work for the purposes set forth in this Agreement until
such certificate is received from Pan American. The date of delivery of
the certificate by Pan American shall constitute the Completion Date
for the purposes of this Agreement.
3.6.15 The construction work shall be constructed in such a manner that there
will be at all times a minimum of air pollution, water pollution or any
other type of pollution and a minimum of noise emanating from, arising
out of or resulting from the operations of the User under this
Agreement. Accordingly, and in addition to all other obligations
imposed on the User under this Agreement and without diminishing,
limiting, modifying or affecting any of the same, the User shall be
obligated to construct as part of the construction work hereunder such
structures, fences, equipment, devices and other facilities as may be
necessary or appropriate to accomplish the foregoing and all of the
foregoing shall be covered under the plans and specifications of the
User submitted under Section 3 hereof and shall be part of the
construction work hereunder.
3.6.15.1 Notwithstanding the provisions of subsection 3.6.15 above and in
addition thereto, Pan American hereby reserves the right from time to
time and at any time during the term of the Agreement to require the
User, subsequent to the completion of the construction work to design
and construct at its sole cost and expense such further reasonable
structures, fences, equipment, devices and other facilities as may be
necessary or appropriate to accomplish the objectives as set forth in
the first sentence of said subsection.
3.6.15.2 All locations, the manner, type and method of construction and the size
of any of the foregoing shall be determined by Pan American. The User
shall submit for Pan American's approval its plans and specifications
covering the required work and upon receiving such approval shall
proceed diligently to construct the same. All other provisions of this
Section with respect to the construction work shall apply and pertain
with like effect to any work which the User is obligated to perform
pursuant to this subsection 3.6.15 and upon completion of each portion
of such work it shall be and become a part of the construction work.
The obligations assumed by the User under this subsection 3.6.15 are a
special inducement and consideration to Pan American in granting this
Agreement to the User.
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4. Other Construction by the User
4.1 Except as otherwise expressly provided herein, the User shall not erect
any structures, make any improvements or do any other construction work
on the Space, or install any fixtures (other than trade fixtures,
removable without material damage to the Space, any such damage to be
immediately repaired by the User) without the prior written approval of
Pan American and in the event any construction, improvement,
alteration, modification, addition, repair or replacement is made
without such approval, then upon reasonable notice so to do, the User
will remove the same or at the option of Pan American, cause the same
to be changed to the satisfaction of Pan American. In case of any
failure on the part of the User to comply with such notice, Pan
American may effect the removal or change and User shall pay the cost
thereof to Pan American.
4.2 In no event shall the User erect or be authorized to erect any
structure on Area B.
5. Fees to Pan American
5.1 Commencing upon the effective date and continuing each month until the
completion of the sixtieth (60th) month of the term hereof, the User
shall pay to Pan American a monthly fee of Sixteen Thousand Nine
Hundred Sixty-Three Dollars ($16,963.00), subject to adjustment as
hereinafter provided.
5.1.1 If the effective date occurs on a day other than the first day of a
month, the fee payable for such month shall be prorated on the basis
that the number of days from the effective date to the end of such
month bears to the actual number of days in such month.
5.2 Commencing upon the date the User's contractor enters upon the Space to
begin construction of the facilities set forth in Section 3.1 hereof
and ending upon the Completion Date, the monthly fee set forth in
Section 5.1 above shall be abated at the rate of One Thousand Two
Hundred Thirty-Three Dollars ($1,233.00) per month.
5.3 Upon the effective date a structure known as Building 29 exists upon
the Space. User is hereby authorized to demolish said structure in
connection with the construction of facilities set forth in Section 3.1
hereof and upon the date of completion of such demolition and removal
of all debris, the monthly fee set forth in Section 5.1 above shall be
abated at the rate of Nine Hundred Dollars ($900.00) per month.
5.4 Upon the effective date a structure known as Building 26 exists upon
the Space. User hereby agrees to demolish said structure prior to
commencement of construction set forth in Section 3 hereof and upon the
date of completion of such demolition and removal of all debris the
monthly fee set forth in Section 5.1 above shall be abated at the rate
of Fifty Dollars ($50.00) per month.
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5.5 Upon the effective date a structure known as Hangar No. 3 exists upon
the Space. Subject to prior approval by the Port Authority and Pan
American of an alteration application for the demolition of Hangar No.
3, User may demolish said Hangar upon written authorization from Pan
American to so proceed, and upon the date of completion of such
demolition removal of all debris and appropriate supplemental site work
to permit the Hangar No. 3 site to be used as an aircraft ramp, the
monthly fee shall be abated by Five Thousand Three Hundred Eighty-Seven
Dollars and Fifty Cents ($5,387.50) per month. Nothing contained herein
shall constitute an obligation upon the Port Authority or Pan American
to authorize the demolition of Hangar No. 3.
5.6 The abatements referred to in 5.3, 5.4 and 5.5 above shall become
effective upon the date Pan American renders to User acceptance in
writing of the demolition work.
5.7 Notwithstanding any provision hereof, User understands and acknowledges
that upon the effective date of this Agreement Mars Aircraft Radio
Service Company of New Jersey ("Mars") occupies approximately 2,096
square feet on the second floor of the west lean-to of Hangar No. 3
("the Mars Space") under a Use and Occupancy Agreement with Pan
American dated March 3, 1978 ("the Mars Agreement") and that said Mars
Space is not a part of the Space under this Agreement. Starting with
the second anniversary of the effective date of this Agreement or upon
earlier termination of the Mars Agreement, whichever occurs first, the
monthly fee shall be Seventeen Thousand Two Hundred Fifteen Dollars
($17,215.00), subject to abatement as provided in 5.2, 5.3, 5.4 and 5.5
above and subject to proration for a fractional month as set forth in
5.1.1; and thenceforth the Mars Space shall become a part of the Space
under this Agreement.
5.7.1 During the occupancy of the Mars Space by Mars, User agrees to supply
to Mars heat and electricity and agrees to permit Mars, its employees
and customers to use the existing stairway leading from the hangar
floor to the Mars Space and to use the common corridors for purposes of
access to the Mars Space and as a means of access to the public street
adjacent to the Space and to provide for the use of toilet facilities
and washroom in the west lean-to of Hangar No. 3.
5.7.2 Further, User hereby agrees to the use by Mars, solely for its
employees and customers, of twelve automobile parking spaces at rates
mutually satisfactory to User and Mars; and to use space on aircraft
parking ramps for the sole purpose of parking aircraft of Mars'
customers at User established rates, provided, however, that such use
by Mars shall be subject to approval by User as to location and that
the exercise of such right of use shall not unreasonably interfere with
User's operations on the Space.
5.7.3 User hereby agrees to the use by Mars of the Space for the erection of
Mars' signs, subject to the approval of User and of Pan American of an
alteration application.
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5.8 Starting with the first day of the sixty-first (61st) full month of the
term of this Agreement counting from the effective date and continuing
for the next succeeding sixty (60) months, the monthly fee shall be
Seventeen Thousand Two Hundred Fifteen Dollars ($17,215.00) (less any
abatement granted to User under the provisions of Sections 5.3, 5.4 or
5.5 above), multiplied by a fraction, the numerator of which shall be
the Consumer Price Index for all urban consumers of the Bureau of Labor
Statistics of the United States Department of Labor, all items,
Selected Large Cities, for the New York-Northeastern New Jersey Area
Base Year 1967 = 100 (hereinafter referred to as "the CPI") as
published for the month in which the fee payment for the sixtieth
(60th) full month of the term shall become due and the denominator of
which shall be the CPI published for the month preceding the month in
which the effective date falls.
5.8.1 Starting with the 121st monthly payment and continuing for the next
succeeding sixty (60) months, the monthly payments shall be computed in
the same manner as in Section 5.8 above, except that the numerator of
the fraction shall be the CPI published for the month that the 120th
monthly payment shall be due.
5.8.2 Starting with the 181st monthly payment and continuing for the next
succeeding sixty (60) months, the monthly payments shall be computed in
the same manner as 5.8 above except that the numerator of the fraction
shall be the CPI published for the month that the 180th monthly payment
shall be due.
5.8.3 Starting with the 241st monthly payment and continuing throughout the
remaining term of the Agreement, the monthly payments shall be computed
in the same manner as in 5.8 above except that the numerator of the
fraction shall be the CPI published for the month that the 240th
monthly payment shall be due.
5.8.4 In computing the adjustments for the monthly fees, in no event shall
the monthly fees be less than the monthly fees payable during the five
year period immediately preceding.
5.8.5 In the event any CPI is published using a base year other than 1967,
the CPI shall be converted to a 1967 base year equivalent, following
the instructions for such conversion provided by the Bureau of Labor
Statistics or any succeeding governmental statistical authority.
5.9 In addition to the fees set forth above and commencing upon the first
day of the calendar year following the effective date the User shall
pay to Pan American the following percentage fees:
5.9.1 Five Percent (5%) of the gross receipts (as hereinafter defined) of the
User arising during each annual period in excess of an amount ("the
annual exemption amount") to be calculated (1) by determining the sum
of (a) the then effective monthly fee and (b) .833% of the capital
investment by the User in new buildings or new structures as such are
defined in Section 17.8 hereof; and (2) multiplying said sum by a
factor of two hundred forty (240); and
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5.9.2 1/4 of 1% of gross receipts from sales of aircraft.
5.9.3 The term "gross receipts" as used in 5.9.1 above shall include all
monies paid or payable to the User for all sales made and for all
services rendered at or from the Airport, regardless of the time and
place of receipt of the order therefor, and for sales made and for
services rendered outside the Airport, if the order therefor is
received at the Airport, and shall include revenues of any type arising
out of or in connection with the activities of the User at the Airport
under this Agreement except:
5.9.3.1 revenues from sales of aviation fuels and oils;
5.9.3.2 revenues from sale of new or used aircraft;
5.9.3.3 refunds to customers for returned merchandise previously reported sold;
5.9.3.4 intra-company charges for products or services not representing a
direct sale or service to customers at the Airport;
5.9.3.5 avionics units or components sold concurrently with any aircraft sale
which are an integral part of the aircraft sale transaction and are
included in the aircraft sale price;
5.9.3.6 any taxes imposed by law which are separately stated to and paid by
customers of the User and directly remitted by the User to the taxing
or tax collecting authority.
5.9.4 The term "annual period" shall mean the twelve months beginning with
January 1 of the calendar year following the effective date and each
successive twelve month period thereafter.
5.9.5 In the event that Pan American shall enter into agreements with other
users at the Airport providing for a percentage or other fee payable to
Pan American for the sale of aircraft from the Airport, which fee is
less than the fee as set forth in subsection 5.9.2 hereof, such lesser
fee shall be substituted for the aforementioned fee upon the effective
date of such agreement for such lesser fee with other users.
5.9.6 All gross receipts from the sale of aircraft by the User shall be
considered as having been derived at the Airport and are subject to the
percentage fee set forth in 5.9.2 above, with the exception of aircraft
sales in which each and everyone of the following tests are met:
5.9.6.1 that the sale was consummated at a location other than at the Airport,
5.9.6.2 that the contract for sale was executed at a location other than at the
Airport,
5.9.6.3 that the demonstration of the aircraft to the purchaser was made at a
place other than the Airport, and
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5.9.6.4 that the delivery of the aircraft was made at a location other than at
the Airport.
5.9.7 In the event a sale of an aircraft was made for which User accepted
another aircraft in trade, the value of the sale less the value allowed
the customer for the aircraft taken in trade shall be subject to the
percentage fee, provided, however, that the aircraft taken in trade
shall be subject to said fee at its resale price when sold.
5.9.8 Sales of aircraft owned by others for which User has acted as broker
shall not be considered as gross receipts from sale of aircraft,
provided, however, that the brokerage fee earned by User from such sale
shall be considered as gross receipts as defined in 5.7.3 above.
5.9.9 There shall be included in gross receipts and gross receipts from
aircraft sales all monies paid or payable to any subsidiary of User in
which User owns 50% interest or more, which monies have been derived by
such subsidiaries, firms, corporations or entities exercising any of
the rights and privileges hereunder at the Airport. User shall render
written notice to Pan American whenever any of User's rights and
privileges hereunder are being exercised by any such firms,
subsidiaries, corporations or entities. The foregoing shall not be
deemed to grant to any such subsidiary, firm, corporation or entity any
rights or privileges granted to User hereunder.
6. Time of Payment and Computation of Amounts
6.1 User shall pay to Pan American the monthly fees specified in the
Section entitled "Fees to Pan American" hereof in advance on the first
(1st) day of each and every month until the termination of this
Agreement, provided, however, if this Agreement is terminated other
than the last day of the month the last payment shall be the then
effective basic monthly fee prorated in the same proportion the number
of days the Agreement was effective in the last month bears to thirty
(30) days.
6.2 For each annual period the User shall pay the gross receipts percentage
fee as follows: on the twentieth (20th) day of the first (1st) month
following the effective date hereof and on the twentieth (20th) day of
each and every month thereafter including the month following the end
of the annual period, the User shall render to Pan American a statement
certified by User's principal financial officer showing its gross
receipts for the preceding calendar month and its cumulative gross
receipts from the date of commencement of the annual period for which
the report is made, through the last day of the preceding calendar
month; whenever any such statement shall show that the cumulative gross
receipts for the annual period are in excess of the annual exemption
amount, the User shall pay to Pan American at the time of rendering the
statement an amount equal to Five Percent (5%) of such excess and shall
on the twentieth (20th) day of each month thereafter during the annual
period and the month next succeeding that annual period, pay to Pan
American an amount equal to Five Percent (5%) of the
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gross receipts of each subsequent month during the annual period. At
any time that the annual exemption amount is decreased by abatement so
that there is an excess of gross receipts as to which such percentage
fee has not been paid the same shall be payable to Pan American on
demand.
6.3 Upon any termination of the use and occupancy hereunder (even if stated
to have the same effect as expiration, but in no event if termination
of said use and occupancy is due to termination of the Basic Agreement
either by the Port Authority pursuant to any of the provisions of
Section 15 (a) thereof or by Pan American for any reason whatsoever),
the User shall, within twenty (20) days of the effective date of such
termination, make a payment of such percentage fees computed as
follows: First, the User shall within twenty (20) days after the
effective date of termination render to Pan American a statement of
gross receipts certified by User's principal financial officer for the
annual period in which the effective date of termination falls; and,
second, the payment when due on account of all such percentage fees for
the annual period in which the effective date of termination falls
shall be the excess of such percentage fees computed as follows, over
the total of such percentage fee payments previously made for such
annual period: Five Percent (5%) of the gross receipts of the User for
such annual period which are in excess of the annual exemption amount,
said annual exemption amount being multiplied by a fraction, the
numerator of which shall be the number of days from the commencement of
the annual period to the effective date of termination, and the
denominator of which shall be three hundred sixty-five (365).
6.4 Nothing contained in the foregoing shall affect the survival of the
obligations of the User as set forth in the Sections of this Agreement
covering the survival of the User's obligations.
6.5 User shall pay the percentage fee on gross receipts from sales of
aircraft as follows: on the twentieth (20th) day of the first (1st)
month following the commencement of the annual period and on the
twentieth (20th) day of each and every month thereafter User shall
render to Pan American a statement certified by User's principal
financial officer showing its gross receipts from the retail sales of
aircraft made during the preceding month and shall pay the percentages
fee thereon at the time such statement is rendered. If no sales were
made during any month, a negative statement shall be rendered to that
effect.
6.6 The fees specified herein shall be payable at the office of the Manager
of Teterboro Airport, 399 Industrial Avenue, Teterboro, New Jersey
07608, or such other location as may from time to time be substituted
therefor.
7. Care, Maintenance and Repair
7.1 The User shall at its own expense at all times keep in a clean and
orderly condition and appearance the Space and all the User's fixtures,
equipment and
15
personal property which are located in any parts of the Space which are
open to or visible by the general public.
7.2 The User shall at its own expense repair, replace or rebuild all or any
part of the Space which may be damaged or destroyed by the acts or
omissions of the User or by those of its employees, customers, guests
or invitees or of other persons doing business with the User.
7.3 Further, the User at its own expense shall take good care of the Space,
whether structural or non-structural, including therein, without
limitation thereto, paved areas, fences, roofs, skylights, steelwork,
walls, partitions, floors, foundations, ceilings, columns, windows,
doors, glass of every kind, plumbing, heating, fire-protection,
fire-alarm, sewerage, drainage, water-supply and electrical systems,
including all pipes, wires, lines, conduits, equipment and fixtures and
shall make all necessary repairs and replacements and do all necessary
rebuilding and repainting, regardless of the cause or the condition
requiring the same.
7.4 In the event the User fails to commence so to repair, replace, rebuild
or paint within a period of ten (10) days after notice from Pan
American so to do, or fails diligently to continue to complete the
repair, replacement, rebuilding or painting of all the Space required
to be repaired, replaced, rebuilt or painted by the User under the
terms of this Agreement, Pan American may, at its option, and in
addition to any other remedies which may be available to it, repair,
replace, rebuild or paint all or any part of the Space included in the
said notice, and charge the cost thereof to the User, the amount of
such charge to constitute an item of additional fee.
7.5 During the period of occupancy by Mars all non-structural replacements,
repairs and repainting necessary for the proper care and maintenance of
the Mars Space shall be the responsibility of Mars. User shall be
responsible for all structural, roof and exterior repairs of the Mars
Space.
8. Obstruction Lights
8.1 The User shall furnish such obstruction lights as Pan American shall
direct, of the type and design approved by Pan American, and shall
install said lights in the locations on the Space designated by Pan
American and shall maintain them in first class operating condition at
all times. The User shall furnish and install the bulbs and furnish the
electricity necessary for the operation of the said lights, and shall
operate the same in accordance with the directions of Pan American. Pan
American hereby directs that all said obstruction lights shall until
further notice, be operated daily for a period commencing thirty (30)
minutes before sunset and ending thirty (30) minutes after sunrise and
for such other periods as may be directed or requested by the Control
Tower of the Airport.
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9. Insurance
9.1 The User shall, during the term of this Agreement, insure and keep
insured to the extent of One Hundred Percent (100%) of the replacement
value thereof, all buildings, structures, improvements, installations,
facilities, and fixtures now or in the future located on the Space
against such hazards and risks as may now or in the future be included
under the standard form of fire insurance policy of the State of New
Jersey and also against damage or loss by windstorm, cyclone, tornado,
hail, explosion, riot, civil commotion, aircraft, vehicles and smoke,
under the standard form of fire insurance policy of New Jersey, and the
form of extended coverage endorsement prescribed as of the effective
date of the said insurance by the rating organization having
jurisdiction, and also covering boiler and machinery hazards and risks
and also, subject to the availability thereof, covering nuclear
property losses and contamination hazards and risks in a separate
insurance policy or policies or as an additional coverage endorsement
to the aforesaid policies in the form as may now or in the future be
prescribed as of the effective date of said insurance by the rating
organization having jurisdiction.
9.2 The aforesaid insurance coverages and renewals thereof shall insure the
Port Authority and Pan American as their interests may appear and shall
provide that the loss, if any, shall be adjusted with Pan American and
the Port Authority and shall be payable to the Port Authority or Pan
American as their interests may appear.
9.3 In the event the Space or any part thereof shall be damaged by any
casualty against which insurance is carried pursuant to this Section
the User shall promptly notify Pan American of such casualty and shall
thereafter furnish to Pan American such information and data as shall
enable the parties to adjust the loss.
9.4 At least seven (7) days prior to the beginning of the term of this
Agreement, the policies or certificates representing said insurance
shall be delivered by the User to Pan American and each policy or
certificate delivered shall bear an endorsement obligating the
insurance company to furnish the Port Authority and Pan American twenty
(20) days' advance notice of the cancellation of the insurance
evidenced by said policy or certificates or of any changes or
endorsements which may be made thereon. Renewal policies or
certificates shall be delivered to Pan American at least twenty (20)
days before the expiration of the insurance which such policies are to
renew.
9.4.1 The aforesaid insurance shall be written by a company or companies
approved by Pan American.
9.5 To the extent that any loss is recouped by actual payment to the Port
Authority or Pan American of the proceeds of the insurance herein
referred to above, such proceeds will be paid to the User to cover its
costs of rebuilding or repairing the portion or all of the Space which
has been damaged or destroyed. Such payment will be made by Pan
American to the User in installments if requested by the User
17
and as work progresses provided that as to each request for payment the
User shall certify by a responsible officer or authorized
representative thereof that the amounts requested are due and payable
to its contractor for work completed. Upon completion of all the work,
the User shall certify by a responsible officer or authorized
representative that such rebuilding and repairs have been completed,
that all costs in connection therewith have been paid by the User and
said costs are fair and reasonable and said certification shall also
include an itemization of costs. Nothing herein contained shall be
deemed to release the User from any of its repair, maintenance or
rebuilding obligations under the Agreement. If the proceeds of any such
insurance paid to Pan American exceed the User's costs of rebuilding or
repair, the excess of such proceeds shall be retained by Pan American.
9.6 If there is damage or destruction to the Space covered by insurance
under this Section, the User shall promptly repair, rebuild or replace
the damaged or destroyed portion of the Space.
9.7 If the User does not so properly proceed then Pan American may repair
or rebuild and may apply such proceeds of such insurance towards such
repair, replacement and rebuilding, but no such application shall
relieve the User of its obligations under this Agreement.
9.8 If, moreover, there is damage or destruction to the property covered
under this Section which occurs within the last three years of the term
of the Agreement, the obligations of the User to repair, replace or
rebuild such damaged or destroyed property at User's option may be
discharged (provided that the insurance applicable thereto has been
maintained in full force and effect) in which case the entire proceeds
of the insurance applicable thereto shall be retained by Pan American.
9.9 The provisions of Section 9.1 above notwithstanding, the User may
request, in writing, that Pan American secure and maintain the
insurance coverage to the extent specified in said Section 9.1,
provided, however, that the User shall reimburse Pan American for the
cost thereof and provided, further, that the policy or policies
provided by Pan American shall name the Port Authority and Pan American
as insured under such policies and that any loss shall be adjusted with
Pan American and the Port Authority as their interests may appear but
that in the event the User is required to make repairs, replacement or
rebuilding on the Space or any part thereof which is covered by the
aforesaid insurance, the proceeds thereof shall be made available to
the User for the purpose of performing its obligations in the same
manner and same extent as set forth in Section 9.5 hereof.
9.9.1 In the event User elects to request Pan American to provide the
insurance as set forth in 9.9 above, and said insurance is in fact
provided, Pan American agrees and hereby grants the User and any
sub-user of the Space approved in writing by Pan American, a waiver of
subrogation under said fire insurance policy or policies, provided,
however, that if Pan American deems the operations
18
performed on or within the Space by the User or such approved sub-user
are extra hazardous or otherwise will invalidate the terms of said fire
insurance policy or policies, the said waiver of subrogation shall be
withdrawn by Pan American.
10. Indemnity, Liability Insurance
10.1 The User shall indemnify and hold harmless the Port Authority, its
Commissioners, officers, employees and representatives; and Pan
American, its Directors, officers, employees and representatives from
all claims and demands of third persons, including, but not limited to,
claims and demands for death or personal injury or for property damages
arising out of the use and occupancy of the Space by the User or out of
any other acts or omissions of the User, its officers, employees on the
Space or out of the acts or omissions of others on the Space with
consent of the User, excepting only claims and demands which result
solely from negligent acts done by Pan American, its Directors,
officers, agents and employees.
10.2 In addition to the obligations set forth in the above subsection, the
User, in its own name as assured, shall maintain and pay the premiums
on the following described policies of comprehensive public liability
insurance and automobile liability insurance which shall cover its
operations hereunder and shall be effective throughout the term in
limits not lower than the following:
10.2.1 Comprehensive Airport Liability with single blanket limit of
$10,000,000 for Bodily Injury, Personal Injury and Property Damage
including but not limited to coverages in the following areas:
Premises and Operation
Broad Form Contractual
Products
Hangar Keepers
Owner's-Contractor's Protective
Completed Operations
10.2.2 Comprehensive Auto Liability and single blanket limit of $1,000,000 for
Bodily Injury and Property Damages with coverage in the following
areas:
Own Vehicles
Non-Owned Vehicles
Hired Vehicles
10.3 Neither the Port Authority nor Pan American shall be named as an
insured in any policy of insurance required by this Section, unless the
Port Authority or Pan American shall, at any time during the effective
period of this Agreement, direct otherwise in writing, in which case
the User shall cause the Port Authority and/or Pan American to be so
named. As to any insurance required by the provisions of this Agreement
to secured by or at the direction of the User, a certified copy of each
of the policies or certificates evidencing the existence thereof, or
binders,
19
together with evidence of the payment of the premium thereon, shall be
delivered to Pan American within fifteen (15) days prior to occupancy
by User of the Space. In the event any binder is delivered, it shall be
replaced within thirty (30) days by a certified copy of the policy or a
certificate. Each such copy or certificate shall contain a valid
provision or endorsement that the policy may not be cancelled,
terminated, changed or modified without giving twenty (20) days'
written advance notice thereof to Pan American. A renewal policy shall
be delivered to Pan American at least twenty (20) days prior to the
expiration date of each expiring policy, except for any policy expiring
after the date of expiration of the term. If at any time any of the
policies shall be or become unsatisfactory to Pan American as to form
or substance or if any of the carriers issuing such policies shall be
or become unsatisfactory to Pan American, the User shall promptly
obtain a new and satisfactory policy in replacement.
11. Ingress and Egress
11.1 The User, its customers, its contractors, suppliers of material and
furnishers of services shall have the right of ingress and egress
between the Space and the city streets or public ways outside the
Airport by means of such pedestrian or vehicular roadways to be used in
common with others having rights of passage within the Airport, as may
from time to time be designated by Pan American for the use of the
public.
11.2 The User shall have the right of ingress and egress between the Space
and the public landing areas at the Airport by means of connecting
taxiways, to be used in common with others having rights of passage
thereon.
11.3 The use of any such roadway or taxiway shall be subject to the Rules
and Regulations of the Airport which are now in effect or which may
hereafter be promulgated for the safe and efficient operation of the
Airport. Pan American may, at any time, temporarily or permanently,
close or consent to or request the closing of, any such roadway or
taxiway and any other way at, in or near the Space presently or
hereafter used as such, so long as a reasonable means of ingress and
egress as provided above remains available to the User. Subject to the
foregoing obligation the User hereby releases and discharges the Port
Authority, its Commissioners, officers, employees and agents; Pan
American, its Directors, officers, employees and agents and all
municipalities and other governmental authorities and their respective
successors and assigns, of and from any and all claims, demands or
causes of action which the User may now or at any time hereafter have
against any of the foregoing, arising or alleged to arise out of the
closing of any street, roadway or other area, whether within or outside
the Space. The User shall not do or permit anything to be done which
will interfere with the free access and passage of others to space
adjacent to the Space or in any streets or roadways near the Space.
20
12. Various Obligations of the User
12.1 The User shall conduct its operations in an orderly and proper manner
and so as not to annoy, disturb or be offensive to others at the Space.
The User shall take all reasonable measures:
12.1.1 to eliminate vibrations tending to damage any equipment, structure,
building or portion of a building which is on the Space, or is a part
thereof, or is located elsewhere on the Airport, and
12.1.2 to keep the sound level of its operations as low as possible.
12.2 The User shall control the conduct, demeanor and appearance of its
employees and invitees and of those doing business with it, and upon
objection from Pan American concerning the conduct, demeanor or
appearance of any such shall immediately take all lawful steps
necessary to remove the cause of the objection. If Pan American shall
so request, the User agrees to supply and require its employees to wear
or carry badges or other suitable means of identification, which shall
be subject to the prior and continuing approval of the Manager of the
Airport.
12.3 It is the intent of the parties hereto that noise caused by aircraft
engine operation shall be held to a minimum. To this end the User will
conduct its operations in such a manner as to keep the noise produced
by aircraft engines and component parts thereof to a minimum by such
methods as are practicable, considering the extent and type of the
operations of the User. In addition, the User will employ the maximum
amount of noise arresting and noise reducing devices that are available
and economically practicable, considering the extent of the operations
of the User. In its use of the Space, the User shall take all possible
care, caution and precaution and shall use its best efforts to minimize
prop or jet blast interference to aircraft operating on or to
buildings, structures and roadways, now located on or which in the
future may be located on areas adjacent to the Space. In the event Pan
American determines that the User has not curbed the prop or jet blast
interference, the User hereby covenants and agrees to erect and
maintain at its own expense such structure or structures as may be
necessary to prevent prop or jet blast interference subject, however,
to the prior written approval of Pan American as to type, manner and
method of construction.
12.4 The User shall daily remove from the Space by means of facilities
provided by it all garbage, debris and other waste materials arising
out of or in connection with its operations hereunder, and any such not
immediately removed shall be temporarily stored in a clean and sanitary
condition in suitable garbage and waste receptacles, the same to be
made of metal and equipped with tight-fitting covers, and to be of a
design safely and properly to contain whatever material may be placed
therein, said receptacles being provided and maintained by the User.
The receptacles shall be kept covered except when filling or emptying
the same. The User shall exercise extreme care in removing such
garbage, debris and other
21
waste materials from the Space. The manner of such storage and removal
shall be subject in all respects to _______________________. No
facilities of the Airport shall be used for such removal unless with
Pan American's prior consent in writing. No such garbage, debris or
other waste materials shall be or be permitted to be thrown, discharged
or disposed into or upon the waters at or bounding the Space.
12.5 It is intended that the standards and obligations imposed by this
Section shall be maintained or complied with by the User in addition to
its compliance with all applicable Federal, State and Municipal laws,
ordinances and regulations, and in the event that any of said laws,
ordinances and regulations shall be more stringent than such standards
and obligations, the User agrees that it will comply with such laws,
ordinances and regulations in its operations hereunder. Changes in such
laws or regulations are not grounds for termination of this Agreement.
12.6 The User shall promptly observe, comply with and execute the provisions
of any and all present and future rules and regulations, requirements,
orders and directions of the National Fire Protection Association and
the Fire Insurance Organization of New Jersey or of any other board or
organization exercising or which may exercise similar functions which
may pertain or apply to the operations of the User on the Space and the
User shall, subject to and in accordance with the provisions of this
Agreement relating to construction by the User, make any and all
structural or nonstructural improvements, alterations or repairs of the
Space that may be required at any time hereafter by any such present or
future rule, regulation, requirement, order or direction. If by reason
of any failure on the part of the User to comply with the provisions of
this Section, any fire insurance, extended coverage or other insurance
rate on the Space or any part thereof, or on the Airport or any part
thereof, shall at any time be higher than it otherwise would be, then
the User shall pay to Pan American that part of all premiums paid by
Pan American which shall have been charged because of such violation or
failure by the User.
12.7 In connection with the conduct of User's business the User shall:
12.7.1 use its best efforts in every proper manner to maintain, develop and
increase the business conducted by it hereunder;
12.7.2 not divert, cause or allow to be diverted, any business from the
Airport;
12.7.3 maintain in accordance with accepted accounting practice during the
term hereof User's records and books of account recording all
transactions at, through or in anywise connected with the Airport which
records and books of account shall be kept at all times at the User's
place of business at the Airport;
12.7.4 permit in ordinary business hours during the term hereof and for one
(1) year thereafter the examination and audit by the officers,
employees or representatives of Pan American of such records and books
of account and also any records and
22
books of account of any company owned or controlled by the User if said
Company performs services similar to those performed by the User
anywhere at the Airport.
12.7.5 The User shall be solely responsible for compliance with the provisions
of this Section and no act or omission of Pan American shall relieve
the User _______________________.
12.8 In addition to compliance by the User with all laws, ordinances,
governmental rules, regulations and orders now or at any time in effect
during the term of the use hereunder which as a matter of law are
applicable to the operation, use or maintenance by the User of the
Space or the operations of the User under this Agreement (the foregoing
not to be construed as a submission by Pan American or the Port
Authority to the application to itself of such requirements or any of
them), the User agrees that it shall conduct all its operations under
the Agreement and shall operate, use and maintain the Space in
accordance with a high standard and in such manner that there will be
at all times a minimum of air pollution, water pollution or any other
type of pollution and a minimum of noise emanating from, arising out of
or resulting from the operation, use or maintenance of the Space by the
User and from the operations of the User under this Agreement. Pan
American hereby reserves the right from time to time and at any time
during the term of the Agreement to require the User, and the User
agrees to design and construct at its sole cost and expense such
reasonable structures, fences, equipment, devices and other facilities
as may be necessary or appropriate to accomplish the objectives as set
forth in the first sentence of this paragraph. All locations, the
manner, type and method of construction and the size of any of the
foregoing shall be determined by Pan American. The User shall submit
for Pan American approval a Construction Application together with its
plans and specifications covering the required work and upon receiving
such approval shall proceed diligently to construct the same.
12.9 The obligations assumed by the User under the above paragraph shall
continue throughout the term of this Agreement and shall not be
limited, affected, impaired or in any manner modified by the fact that
Pan American or the Port Authority shall have approved any Construction
Application and supporting plans, specifications and contracts covering
construction work and notwithstanding the incorporation therein of Pan
American's or the Port Authority's recommendations or requirements and
notwithstanding that Pan American and the Port Authority may have at
any time during the term of the Agreement consented to or approved any
particular procedure or method of operation which the User may have
proposed, or Pan American or the Port Authority may have itself
prescribed the use of any procedure or method. The agreement of the
User to assume the obligations under the above paragraph is a special
inducement and consideration to Pan American in entering into this
Agreement with the User.
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13. Prohibited Acts
13.1 The User shall not without prior written approval of Pan American
install, maintain, operate or permit the installation, maintenance or
operation of any restaurant, kitchen, stand or other establishment of
any type for the sale of food or of any vending machines or device
designed to dispense or sell merchandise or services of any kind to the
public, except that User may, for the benefit of its employees,
customers, guests and visitors install coin operated vending machines
or services for the dispensing and sale of the following:
13.1.1 Hot and cold packaged foods
13.1.2 Hot and cold beverages
13.1.3 Candy and chewing gum
13.1.4 Tobacco and tobacco products
13.1.5 Newspapers and periodicals
13.1.6 Telephone services (pay stations)
(hereinafter called "vending machines").
13.2 If User, by itself or by contractors installs vending machines on the
Space for the limited sale of merchandise or services permitted
hereunder, it shall have the right to retain the revenues derived
therefrom, provided, however, that
13.3 The User shall itself and shall also require its contractors to
indemnify and hold harmless Pan American, its Directors, officers,
agents and employees and the Port Authority, its Commissioners,
officers, agents and employees from and against all claims and demands
of third persons (including employees, officers and agents of Pan
American and the Port Authority) arising or alleged to arise out of the
installation, operation or maintenance of the vending machines or
arising or alleged to arise out of any actual or alleged infringement
of any patent, trademark or copyright or any alleged or actual unfair
competition in any wise connected with the operation of the vending
machines.
13.4 The limited right to install, operate and maintain vending machines
granted to User herein may be terminated by Pan American at any time
during the term of this Agreement upon ninety (90) days' notice to the
User and Pan American, at any time thereafter, may substitute for the
User's vending machines other machines selling similar merchandise or
services operated by Pan American or by its permittee or
concessionnaire and thereupon User shall remove its machines.
13.5 Upon installation by Pan American or by its permittee or
concessionnaire of vending machines in substitution of User's vending
machines, all revenues derived therefrom shall be retained by Pan
American.
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13.6 Upon rendering of notice to User of termination of the right to operate
vending machines, Pan American may elect to permit User's vending
machines to remain, but in such case, User shall pay or cause to be
paid to Pan American each month for each machine upon the same basis
for the preceding month as any permittee or concessionnaire of Pan
American then operating machines at the Airport for sale to the general
public of similar merchandise or rendering of similar services.
13.7 The termination by Pan American of the limited right of User to install
vending machines at the Space shall be non-discriminatory in that
similar rights granted to other Users at the Airport shall be
terminated concurrently therewith, and in the exercise of such right by
Pan American User shall not be entitled to assert any claim or
institute any action or proceeding at law or in equity to assert any
claim on account thereof whether for loss, damages or loss of revenue,
consequential or otherwise.
13.8 The User shall not overload any floor or paved area on the Space and
shall repair any floor including supporting members and any paved area
damaged by overloading.
13.9 The User shall not do or permit to be done anything which may interfere
with the effectiveness or accessibility of the utility, mechanical,
electrical, drainage and sewer systems, fire-protection system and
other systems installed or located on or in the Space.
13.10 The User shall not commit any nuisance or permit its employees or
others on the Space with its consent to commit or create or continue or
tend to create any nuisance on the Space or in or near the Airport.
13.11 The User shall not cause or permit to be caused or produced upon the
Space, to permeate the same or to emanate therefrom, any unusual,
noxious or objectionable smokes, gases, vapor or odors.
13.12 The User shall not do or permit to be done any act or thing upon the
Space which:
13.12.1 will invalidate or conflict with any fire insurance policies covering
the Space or any part thereof, or the Airport, or any part thereof; or
13.12.2 which, in the opinion of Pan American, may constitute an
extra-hazardous condition so as to increase the risks normally
attendant upon the operations permitted by this Agreement; or
13.12.3 which will increase the rate of any fire insurance, extended coverage
or other insurance on the Airport or any part thereof or upon the
contents of any building thereon.
13.13 Except persons who have been granted valid permits from Pan American,
User shall not permit, foster or allow on the Space any persons who
are:
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13.13.1 doing maintenance work on aircraft not owned solely by said persons,
13.13.2 giving flight instruction of any sort unless such persons are members
of User's flight instruction staff, or
14. Rules and Regulations
14.1 User shall observe and obey and shall compel others on the Space and
those doing business with it with respect to the Space to observe and
obey such Rules and Regulations of the Airport as are now in effect or
as may be promulgated from time to time for the government and conduct
of operations for reasons of safety, health or preservation of
property, for the good and orderly appearance of the Space and for the
safe and efficient operation and use of the Space. If a copy of the
Rules and Regulations is not attached, then Pan American will make a
copy thereof available to the User at the office of the Manager of
Teterboro Airport.
15. Signs
15.1 Except with the prior written approval of Pan American, the User shall
not erect, maintain or display any advertising, signs, posters or
similar devices at or on the Space.
15.2 Upon demand by Pan American, the User shall remove, obliterate or paint
out any and all advertising, signs, posters and similar devices placed
by the User on the Space or elsewhere on the Airport without the prior
approval of Pan American. In the event of a failure on the part of the
User so to remove, obliterate or paint out each and every sign or piece
of advertising and so to restore the Space and the Airport, Pan
American may perform the necessary work and the User shall pay the
costs thereof to Pan American on demand.
16. Assignment
16.1 The User agrees that it will not grant the right of sub-use, sell,
convey, transfer, assign, mortgage or pledge this Agreement or any part
thereof or any rights granted thereby without the prior written consent
of Pan American.
16.2 If the User assigns, sells, conveys, transfers, mortgages, pledges or
grants the right of sub-use under this Agreement in violation of the
foregoing provisions of this Section, or if the Space is occupied by
anyone other than the User, Pan American may collect from any assignee,
sub-user or anyone who claims a right to this Agreement or who occupies
the Space any charges or fees payable by it and shall apply the net
amount collected to the fees, herein reserved; and no such collection
shall be deemed a waiver by Pan American of the agreements contained in
this Section nor of acceptance by Pan American of any assignee,
claimant or occupant, nor as a release of the User by Pan American from
the further performance by the User of the agreements contained herein.
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17. Condemnation
17.1 The User, in any action or proceeding instituted by any governmental
agency or agencies for the taking for a public use of any interest in
all or any part of the Space, shall not be entitled to assert any claim
to any compensation or award or part thereof made or to be made therein
or therefor, or to institute any action or proceeding or to assert any
claim against such agency or agencies or against the Port Authority or
Pan American for or on account of any such taking (except the possible
claim to an award for loss of the User's removable fixtures), it being
understood and agreed between Pan American and the User that Pan
American shall be entitled to all the compensation or awards made or to
be made or paid for in such taking, free of any claim or right of the
User.
17.2 In the event of a taking of the entire Space by any governmental agency
or agencies, then this Agreement shall be cancelled as of the date
possession is taken from the Port Authority by the agency or agencies,
and shall cease and determine in the same manner and with the same
effect as if the Agreement had on that date expired.
17.3 In the event of a taking by any governmental agency or agencies of a
part of the Space, then use as to such part only shall, as of the date
possession thereof is taken from the Port Authority by such agency or
agencies, cease and determine, and the Fees thereafter to be paid by
the User to Pan American shall be abated as hereinafter provided from
and after the date of such taking. In the event that a substantial part
shall be taken which shall be deemed to mean a taking so extensive that
the User is unable to use or operate the Space for the purposes
expressed in this Agreement, then the User shall have the right to be
exercised within thirty (30) days of the taking to terminate this
Agreement, such termination to have the same effect as expiration.
17.4 In the event that all or any portion of the Space is required by the
Port Authority to comply with any present or future governmental law,
rule, regulation, requirement, order or direction, Pan American may by
notice given to the User terminate the Agreement with respect to all or
such portion of the Space so required. Such termination shall be
effective on the date specified in the notice. The User hereby agrees
to deliver possession of all or such portion of Space so required upon
the effective date of such termination. No taking by or conveyance to
any governmental authority as described in this Section, nor any
delivery by the User nor taking by the Port Authority pursuant to this
subsection shall be or be construed to be a breach of this Agreement or
be made the basis of any claim by the User against the Port Authority
or Pan American for damages, consequential or otherwise.
17.5 In the event a taking or conveyance as set forth above occurs with
respect to all or any portion of the new building or new structures
which shall be erected or constructed by the User, Pan American shall
pay to the User the unamortized capital investment (as is hereinafter
defined), if there be any, of such new building
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or new structures, provided, however, that with respect to a taking or
conveyance the sums payable to the User by Pan American shall be
limited to the extent of amounts covering the foregoing which shall
have actually been paid to Pan American by the Port Authority or by
others under the terms of the Basic Agreement, which amounts shall have
been paid to Pan American through the Port Authority by the
governmental agency or agencies, it being understood that the User
shall not have any claim whatsoever against Pan American or the Port
Authority by reason of insufficient or claimed insufficiency of the
amounts so paid to Pan American. Payment to the User shall be made
within sixty (60) days after receipt of the notice by Pan American from
the Port Authority that payments have been received by the Port
Authority from the governmental agency or agencies and confirmation
that the Port Authority will reimburse Pan American upon evidence of
payment to User.
17.6 The unamortized capital investment referred to in the above subsection
shall be the capital investment in all or any part of the new building
or new structures which shall be erected at the Space by the User with
the approval of Pan American as referred to in the Section entitled
"Construction by User" of this Agreement (as may be affected by the
taking or conveyance in whole or in part), multiplied by a fraction,
the numerator of which shall be the number of whole calendar months
between the effective date of taking or termination as set forth above,
and the end of the amortization period of each such new building or new
structures as hereinafter set forth, and the denominator of which shall
be the total said amortization period of such new building or new
structures.
17.7 Except as otherwise agreed to by the parties hereto prior to
commencement of construction, the amortization period with respect to
each such new structure or new building shall commence as of the date
of substantial completion of the same, shall be computed in whole
months, and shall be:
17.7.1 the useful life of the new building or new structure as determined
under sound accounting practice; or
17.7.2 two hundred forty (240) months; or
17.7.3 to termination of the term hereof, whichever is least of the above.
17.8 For purposes of this Agreement and to the extent permitted by sound
accounting practice, the capital investment of the User for each such
new building or new structure shall mean the sum of the following
items:
17.8.1 payments to independent contractors and suppliers of materials,
excluding any payments for engineering, architectural planning or
designing services, engaged or retained by the User for the actual
construction of the work, including site preparation and bringing
utilities to the site; and
17.8.2 an amount equal to Ten Percent (10%) of the above item.
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17.9 A statement of capital investment in duplicate detailing all of the
foregoing including two copies of invoices and contracts and certified
by the principal financial officer of the User shall be delivered to
Pan American not later than forty-five (45) days after completion of
any construction, and the User shall permit Pan American and the Port
Authority by their agents, employees or representatives at all
reasonable times prior to a final settlement or determination of
capital investment to examine and audit the records and books of the
User which pertain to the capital investment and the User agrees to
keep such records and books of account within the District of the Port
Authority during such time. If in the certified statement, there is
included any item of cost or expense as having been incurred which in
the opinion of Pan American or the Port Authority was not so incurred,
or which in the opinion of Pan American or the Port Authority was not a
cost or expense properly chargeable to the capital investment under
sound accounting practice, within one hundred eighty (180) days after
completion of audit and examination by the Port Authority and Pan
American, Pan American shall give written notice to the User stating
its objection to such item and the grounds therefor, which notice shall
be considered final in the determination of the capital investment.
17.10 There shall be excluded from the capital investment any cost of
personal property.
17.11 Notwithstanding any other provision of this Agreement, in ascertaining
the amount Pan American shall be obligated to pay the User under the
terms of this Section the unamortized capital investment of each such
new structure or new building shall be diminished by the amount that
any part of the components of any costs thereof are secured by liens,
mortgages or other encumbrances or conditional bills of sale on said
capital investment and less any other amounts whatsoever due to Pan
American by the User under this Agreement or any other agreement with
the User at the Airport. The capital investment for any such new
structure or new building shall not include any expenses, outlays or
charges by or for the account of the User for or in connection with the
work unless said work is actually made and completed and becomes part
of the Space.
18. Non-Discrimination
18.1 Without limiting the generality of any of the provisions of this
Agreement, the User, for itself, its successors in interest, and
assigns, as a part of the consideration hereof, does hereby covenant
and agree as a covenant running with the land that (1) no person on the
grounds of race, color, or national origin shall be excluded from
participation in, denied the benefits of, or be otherwise subjected to
discrimination in the use of the Space, (2) that in the construction of
any improvement on, over, or under the Space and the furnishing of
services thereon, no person on the grounds of race, color, or national
origin shall be excluded from participation in, denied the benefits of,
or otherwise subjected to discrimination, (3) that the User shall use
the Space in compliance with all other requirements imposed by or
pursuant to Title 49, Code of Federal Regulations, Department of
Transportation, Subtitle A, Office of the Secretary, Part 21,
29
Nondiscrimination in Federally-assisted programs of the Department of
Transportation-Effectuation of Title VI of the Civil Rights Act of
1964, and as said Regulations may be amended, and any other present or
future laws, rules, regulations, orders or directions of the United
States of America with respect thereto which from time to time may be
applicable to the User's operations thereat, whether by reason of
agreement between Pan American and the United States Government or
otherwise.
18.2 The User shall include the provisions of the above subsection in every
agreement or concession pursuant to which any person or persons, other
than the User, operates any facility at the Space providing services to
the public and shall also include therein a provision granting Pan
American a right to take such action as the United States may direct to
enforce such covenant.
18.3 The User's noncompliance with the provisions of this Section shall
constitute a material breach of the Agreement. In the event of the
breach by the User of any of the above nondiscrimination provisions,
Pan American may take any appropriate action to enforce compliance; or
in the event such noncompliance shall continue for a period of twenty
(20) days after receipt of written notice from Pan American, Pan
American shall have the right to terminate this Agreement with the same
force and effect as a termination under the Section of the Agreement
providing for termination for default by the User in the performance or
observance of any other term or provision of the Agreement; or may
pursue such other remedies as may be provided by law; and as to any or
all of the foregoing, Pan American may take such action as the United
States may direct.
18.4 The User shall indemnify and hold harmless Pan American and the Port
Authority from any claims and demands of third persons including the
United States of America resulting from the User's noncompliance with
any of the provisions of this Section and the User shall reimburse Pan
American and the Port Authority for any loss or expense incurred by
reason of such noncompliance.
18.5 Nothing contained in this Section shall grant or shall be deemed to
grant to the User the right to transfer or assign the Agreement, to
make any agreement or concession of the type mentioned in this Section,
or any right to perform any construction on the Space.
19. Governmental Requirements
19.1 The User shall procure all licenses, certificates, permits or other
authorization from all governmental authorities, if any, having
jurisdiction over the User's operations at the Space which may be
necessary for the User's operations thereat.
19.2 The User shall pay all taxes, license, certification, permit and
examination fees and excise which may be assessed, levied, exacted or
imposed on the Space or operation hereunder or on the gross receipts or
income to User therefrom, and shall make all applications, reports and
returns required in connection therewith.
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19.3 Pan American has agreed by a provision in its agreement with the Port
Authority covering the Airport to conform to the enactments,
ordinances, resolutions and regulations of various governmental
authorities having jurisdiction and of their various departments,
boards and bureaus in regard to construction and maintenance of
buildings and structures and in regard to health and fire protection.
The User shall, within forty-eight (48) hours after its receipt of any
notice of violation, warning notice, summons or other legal process for
the enforcement of any such enactment, ordinance, resolution or
regulation, deliver the same to Pan American. Unless otherwise directed
in writing by Pan American because the same is inapplicable, the User
shall conform to such enactments, ordinances, resolutions and
regulations insofar as they relate to the operations of the User at the
Space. In the event of compliance with any such enactment, ordinance,
resolution or regulation on the part of the User, acting in good faith,
commenced after such delivery to Pan American but prior to the receipt
by the User of a written direction from Pan American, such compliance
shall not constitute a breach of this Agreement, although Pan American
thereafter notifies the User to refrain from such compliance.
19.4 The User shall promptly observe, comply with and execute the provisions
of any and all present and future governmental laws, rules,
regulations, requirements, orders and directions which may pertain or
apply to the User's operations at the Space.
19.5 The User's obligations to comply with governmental requirements are
provided herein for the purpose of assuring proper safeguards for the
protection of persons and property at the Space.
20. Rights of Entry Reserved
20.1 The Port Authority, by its officers, employees, agents, representatives
and contractors and Pan American by its officers, employees, agents,
representatives and contractors shall have the right at all reasonable
times to enter upon the Space for the purpose of inspecting the same,
for observing the performance by the User of its obligations under this
Agreement and for the doing of any act or thing which the Port
Authority or Pan American may be obligated or have the right to do
under this Agreement, or otherwise.
20.2 Without limiting the generality of the foregoing, Pan American, by its
officers, employees, agents, representatives and contractors and by the
employees, agents, representatives and contractors of any furnisher of
utility services in the vicinity, shall have the right, for its own
benefit, for the benefit of the User, or for the benefit of others than
the User at the Airport, to maintain existing and future utilities
systems or portions thereof on the Space, including therein, without
limitation thereto, systems for the supply of heat, water, gas, fuel,
electricity and for the furnishing of fire-alarm, fire-protection,
sprinkler, sewerage, drainage, telegraph and telephone services,
including all lines, pipes, mains, wires, conduits and equipment
connected with or appurtenant to such systems, and to enter upon
31
the Space at all reasonable times to make such repairs, replacements or
alterations as may, in the opinion of Pan American, be deemed necessary
or advisable and, from time to time to construct or install over, in or
under the Space new systems or parts thereof, including lines, pipes,
mains, wires, conduits and equipment; provided, however, that in the
exercise of such rights of repair, alteration or new construction Pan
American shall not unreasonably interfere with the use and occupancy of
the Space by the User.
20.3 The exercise of any or all of the foregoing rights by the Port
Authority, Pan American or others shall not be or be construed to be an
eviction of the User nor be made the grounds for any abatement of fees,
nor any claim or demand for damages, consequential or otherwise.
20.4 Nothing in this Section shall impose or shall be construed to impose
upon Pan American or the Port Authority any obligation so to construct
or maintain or to make repairs, replacements, alterations or additions,
or shall create any liability for any failure so to do.
21. Basic Agreement
21.1 In the event the Basic Agreement is terminated, revoked, cancelled or
expires, this Agreement shall terminate on the day preceding such date
the same as if such preceding date were the expiration date of the term
of this Agreement.
22. Patents, Trademarks
22.1 The User represents that it is the owner of or fully authorized to use
any, and all services, processes, machines, articles, marks, names or
slogans used by it in its operations under or in anywise connected with
this Agreement. The User agrees to save and hold the Port Authority,
Pan American, their Commissioners, Directors, officers, employees,
agents and representatives free and harmless of and from any loss,
liability, expense, suit or claim for damages in connection with any
actual or alleged infringement of any patent, trademark or copyright,
or arising from any alleged or actual unfair competition or other
similar claim arising out of the operations of the User under or in
anywise connected with this Agreement.
23. Additional Fees and Charges
23.1 If Pan American is required or elects to pay any sum or sums or incurs
any obligations or expense by reason of the failure, neglect or refusal
of the User to perform or fulfill any one or more of the conditions or
agreements contained in this Agreement, or as a result of an act or
omission of the User contrary to the said conditions and agreements,
the User agrees to pay the sum or sums so paid or the expense so
incurred, including all interest, costs, damages and penalties, and the
same may be added to any installment of Fees thereafter due hereunder,
and each and every part of the same shall be and become additional
Fees, recoverable by Pan American in the same manner and with like
remedies as if they were
32
originally a part of the Fees as set forth in the Section entitled
"Fees to Pan American" hereof.
24. Right of Re-Entry
24.1 Pan American shall, as an additional remedy upon the giving of a notice
of termination as provided in the Section entitled "Termination by Pan
American" hereof, have the right to re-enter the Space and every part
thereof upon the effective date of termination without further notice
of any kind, and may regain and resume possession either with or
without the institution of summary or any other legal proceedings or
otherwise. Such re-entry or regaining or resumption of possession,
however, shall not in any manner affect, alter or diminish any of the
obligations of the User under this Agreement, and shall in no event
constitute an acceptance of surrender.
25. Surrender
25.1 The User covenants and agrees to yield and deliver peaceably to Pan
American possession of the Space on the date of cessation of the
Agreement, whether such cessation be by termination, expiration or
otherwise, promptly and in good condition, except for reasonable wear
which does not cause or tend to cause deterioration of the improvements
or adversely affect the efficiency or proper utilization thereof.
26. Termination by Pan American
26.1 Upon the occurrence of any of the following events or at any time
thereafter during the continuance thereof, Pan American may terminate
the rights of the User under this Agreement upon five (5) days' written
notice, such termination to be effective upon the date specified in
such notice:
26.1.2 The User shall become insolvent, or shall take the benefit of any
present or future insolvency statute, or shall make a general
assignment for the benefit of creditors, or file a voluntary petition
in bankruptcy or a petition or an answer seeking an arrangement or its
reorganization or the readjustment of its indebtedness under the
federal bankruptcy laws or under any other law or statute of the United
States or of any State thereof, or consent to the appointment of a
receiver, trustee or liquidator of all or substantially all of its
property; or
26.1.3 By order of decree of a court the User shall be adjudged bankrupt or an
order shall be made approving a petition filed by any of the creditors
or, if the User is a corporation, by any of the stockholders of the
User, seeking its reorganization or the readjustment of its
indebtedness under the federal bankruptcy laws or under any law or
statute of the United States or of any State thereof; or
26.1.4 A petition under any part of the federal bankruptcy laws or an action
under any present or future insolvency law or statute shall be filed
against the User and shall not be dismissed within thirty (30) days
after the filing thereof; or
33
26.1.5 Except as may be provided in the Section entitled "Assignment" hereof,
the interest of User under this Agreement shall be transferred to, pass
to or devolve upon, by operation or law or, otherwise, any other
person, firm or corporation; or
26.1.6 The User, if a corporation, shall, without the prior written notice to
Pan American, become a possessor or merged corporation in a merger, a
constituent corporation in a consolidation, or a corporation in
dissolution; or
26.1.7 By or pursuant to, or under authority of any legislative act,
resolution or rule, or any order or decree of any court or governmental
board, agency or officer having jurisdiction, a receiver, trustee, or
liquidator shall take possession or control of all or substantially all
of the Space of the User and such possession or control shall continue
in effect for a period of twenty (20) working days; or
26.1.8 The User shall voluntarily abandon, desert or vacate the Space or
discontinue its operations at the Airport, or, after exhausting or
abandoning any right of further appeal, the User shall be prevented for
a period of sixty (60) days by action of any governmental agency having
jurisdiction thereof, from conducting its operations at the Airport,
regardless of the fault of the User; or
26.1.9 Any lien is filed against the Space because of any act or omission of
the _____________________.
26.1.10 The User shall fail duly and punctually to pay the Fees or to make any
other payment required hereunder when due to Pan American and shall
persist in its failure for a period of ten (10) days following the
receipt of written notice of such default from Pan American; or
26.1.11 The User shall fail to complete the construction as set forth in
Section 3 hereof; or
26.1.12 The User shall fail to keep, perform and observe each and every other
promise and agreement set forth in this Agreement on its part to be
kept, performed, or observed, within ten (10) days after receipt of
notice of default thereunder from Pan American (except where
fulfillment of its obligation requires activity over a period of time,
and the User shall have commenced to perform whatever may be required
for fulfillment within ten (10) days after receipt of notice and
continues such performance without interruption except for causes
beyond its control; or
26.1.13 There shall be an occurrence of any of the events of default under any
other use and occupancy agreements or permits between the User and Pan
American at the Airport.
26.2 If any of the events enumerated in the above subsections of this
Section shall occur prior to the effective date of this Agreement, the
User shall not be entitled to enter into possession of the Space, and
Pan American upon the occurrence of any such event, or at any time
thereafter during the continuance thereof by twenty-four (24) hours'
notice may cancel this Agreement, such cancellation to be effective
upon the date specified in such notice.
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26.3 No acceptance by Pan American of fees, charges, or other payments in
whole or in part for any period or periods after a default of any of
the terms, agreements and conditions hereof to be performed, kept or
observed by the User shall be deemed a waiver of any right on the part
of Pan American to terminate this Agreement.
26.4 No waiver by Pan American of any default on the part of the User in
performance of any of the terms, covenants or conditions hereof to be
performed, kept or observed by the User shall be or be construed to be
a waiver by Pan American or any other or subsequent default in
performance of any of the valid terms, agreements and conditions.
26.5 The rights of termination described above shall be in addition to any
other rights of termination provided in this Agreement and in addition
to any rights and remedies that Pan American would have at law or in
equity consequent upon any breach of this Agreement by the User, and
the exercise by Pan American of any right of termination shall be
without prejudice to any other such rights and remedies, except that in
the event of termination pursuant to the portion of the subsection
above of this Section reading "after exhausting or abandoning any right
of further appeal, the User shall be prevented for a period of sixty
(60) days by action of any governmental agency having jurisdiction
thereof, from conducting its operations at the Airport, regardless of
the fault of the User," the sole right of Pan American shall be a right
of termination.
27. Services by User
27.1 A principal purpose of Pan American in the making of this Agreement is
to make available at the Airport the items and/or services which the
User is permitted to sell and/or render hereunder and the User hereby
warrants and agrees that it will conduct a first-class operation and
will furnish all necessary or proper fixtures, equipment, personnel
(including licensed personnel as necessary), supplies, materials, and
facilities.
27.2 The User shall:
27.2.1 furnish good, prompt and efficient service hereunder adequate to meet
all demands therefor at the Space;
27.2.2 furnish said service on a fair, equal and nondiscriminatory basis to
all users thereof; and
27.2.3 charge fair, reasonable and nondiscriminatory prices for each unit of
sale or service, provided that the User may make reasonable and
nondiscriminatory discounts, rebates or other similar types of price
reductions to volume purchasers.
27.2.4 As used in the above subsections, "service" shall include furnishing of
parts, materials and supplies (including sale thereof).
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27.2.5 Pan American and User recognize the desirability and the existing need
to provide aircraft maintenance services to User's hangar occupants;
therefore, as a special, inducement for Pan American in entering into
this Agreement User hereby agrees to continue providing or cause to be
provided FAA approved personnel and facilities for maintenance
servicing and repair of aircraft during the term of this Agreement, so
long as the rendering of such services are economically justifiable. In
the event the economics of rendering such services are such as to
impose such severe financial hardship upon the User that can only be
relieved by the discontinuance thereof by User, User shall render sixty
(60) days' written notice to Pan American of its intention to so
discontinue, together with financial data and other factors supporting
such decision. Concurrently with notice to Pan American, User shall
notify its customers in order that they may assess the continued need
for such services. User shall take all appropriate steps consistent
with this Agreement and consistent with User's existing space and its
insurance requirements to assist and permit its customers in making
alternate arrangements for the provision of maintenance services.
It is clearly understood by Pan American and User that in the event
User terminates maintenance services for economic reasons that User's
customers may with User's permission which shall not unreasonably be
withheld have FAA approved and qualified maintenance personnel perform
maintenance on User's customers' aircraft within User's Space provided
the User is properly indemnified.
In the event User discontinues maintenance services (except temporary
disruption due to labor disputes) for reasons other than financial
hardship directly attributable to rendering such services, such
discontinuance shall constitute a material breach hereof and if such
services are not resumed by User within a period of thirty (30) days
after receipt of written notice from Pan American, Pan American shall
have the right to terminate this Agreement with the same force and
effect as a termination under Section 26 hereof.
27.3 The Port Authority has applied for and received a grant or grants of
money from the Administrator of the Federal Aviation Administration
pursuant to the Federal Airport Act of 1946 and pursuant to the Airport
and Airway Development Act of 1970 (49 U.S.C. 1701), as the same have
been amended and supplemented, and the Port Authority may in the future
apply for and receive further such grants. Pan American under its
Operating Agreement with the Port Authority for Teterboro Airport,
dated September 19, 1967, has assumed certain obligations of the Port
Authority under the Grant Agreement and in connection therewith, the
Port Authority and Pan American may in the future undertake certain
additional obligations respecting the operation of the Airport and the
activities of contractors, lessees and permittees thereon. The
performance by the User of the promises and obligations contained in
this Agreement is therefore a special consideration and inducement to
Pan American to enter into this Agreement and the User further
covenants and agrees that if the Administrator of the Federal Aviation
Administration or any other governmental officer or body having
36
jurisdiction over the enforcement of the obligations of the Port
Authority and/or Pan American in connection with Federal Airport Aid,
shall make any orders, recommendations or suggestions respecting the
performance by the User of its obligations under this Agreement, the
User will promptly comply therewith, at the time or times when and to
the extent that Pan American may direct.
28. Survival of the Obligations of the User
28.1 In the event that the Agreement shall have been terminated in
accordance with a notice of termination as provided in the Section
entitled "Termination by Pan American" hereof, or in the event that Pan
American has re-entered, regained or resumed possession of the Space in
accordance with the provisions of the Section entitled "Right of
Re-Entry" hereof, all the obligations of the User under this Agreement
shall survive such termination or cancellation, re-entry, regaining or
resumption of possession and shall remain in full force and effect for
the full term of this Agreement, and the amount or amounts of damages
or deficiency shall become due and payable to Pan American to the same
extent, at the same time or times, and in the same manner as if no
termination, cancellation, re-entry, regaining or resumption of
possession had taken place. Pan American may maintain separate actions
each month to recover the damage or deficiency then due or at its
option and at any time may sue to recover the full deficiency less the
proper discount, for the entire unexpired term of the Agreement.
28.2 The amount of damages for the period of time subsequent to termination
or cancellation (or re-entry, regaining or resumption of possession) on
account of the User's Fee obligations, shall be the sum of the
following:
28.2.1 The amount of the total of all installments of basic fees pursuant to
the Section entitled "Fees to Pan American" hereof, less the
installments thereof payable prior to the effective date of termination
except that the credit to be allowed for the installment payable on the
first (1st) day of the month in which the termination is effective
shall be prorated for the part of the month the Agreement remains in
effect on the basis of the total days in the month;
28.2.2 An amount equal to all expenses incurred by Pan American in connection
with regaining possession, restoring the Space, acquiring a User for
the Space, legal expenses (including but not limited to attorneys'
fees), putting the Space in order including, without limitation to,
cleaning, redecorating (on failure of the User to restore), maintenance
and brokerage fees.
29. Use Subsequent to Cancellation or Termination
29.1 Pan American, upon termination or cancellation pursuant to the Section
entitled "Termination by Pan American" of this Agreement, or upon any
re-entry, regaining or resumption of possession pursuant to the Section
entitled "Right of Re-Entry" of this Agreement, may occupy the Space or
may enter into an agreement with another User and shall have the right
to permit any person, firm or
37
corporation to enter upon the Space and use the same. Such use may be
of part only of the Space or of the entire Space or a part thereof,
together with other space, and for a period of time the same as or
different from the balance of the term hereunder remaining, and on
terms and conditions the same as or different from those set forth in
this Agreement. Pan American shall also, upon said termination or
cancellation, or upon said re-entry, regaining or resumption of
possession, have the right to repair and to make structural or other
changes in the Space, including changes which alter the character of
the Space and the suitability thereof for the purposes of the User
under this Agreement, without affecting, altering or diminishing the
obligations of the User hereunder. In the event either of use by others
or of any actual use and occupancy by Pan American, there shall be
credited to the account of the User against its survived obligations
hereunder any net amount remaining after deducting from the amount
actually received from any User, licensee, permittee or other occupier
in connection with the use of the said Space or portion thereof during
the balance of the term of use, and occupancy as the same is originally
stated in this Agreement, or from the market value of the occupancy of
such portion of the Space as Pan American may itself during such period
actually use and occupy, less all expenses, costs and disbursements
incurred or paid by Pan American in connection therewith. No such use
and occupancy shall be or be construed to be an acceptance of a
surrender of the Space, nor shall such use and occupancy constitute a
waiver of any rights of Pan American hereunder. Pan American will use
its best efforts to minimize damages to User under this Section
commensurate with its obligations under the Basic Agreement.
30. Remedies to be Non-Exclusive
30.1 Except where otherwise specifically provided, all remedies provided in
this Agreement shall be deemed cumulative and additional and not in
lieu of or exclusive of each other or of any other remedy available to
either party at law or in equity.
31. Limitation of Rights and Privileges Granted
31.1 No exclusive rights at the Airport are granted by this Agreement and no
greater rights or privileges with respect to the use of the Space or
any part thereof are granted or intended to be granted to the User by
this Agreement, or by any provision thereof, than the rights and
privileges expressly and specifically granted hereby.
32. Removal of Personal Property
32.1 The User shall have the right at any time during the term of this
Agreement to remove its equipment, inventories, removable fixtures and
other personal property from the Space.
38
32.2 If the User shall fail to remove its property on or before the
termination or expiration of the term, Pan American may remove such
property to a public warehouse for deposit or retain the same in its
own possession, and sell the same at public auction, the proceeds of
which shall be applied first, to the expense of removal, storage and
sale; second, to any sums owed by the User to Pan American, with any
balance remaining to be paid to the User, but if the expenses of such
removal, storage and sale shall exceed the proceeds of sale, the User
shall pay such excess to Pan American upon demand.
33. Brokerage
33.1 The User represents and warrants that no broker has been concerned on
its behalf in the negotiation of this Agreement and that there is no
such broker who is or may be entitled to be paid a commission in
connection therewith. The User shall indemnify and save harmless Pan
American of and from any claim for commission or brokerage made by any
such broker when such claim is based in whole or in part upon any act
or omission of the User.
34. Notices
34.1 Except where expressly required or permitted herein to be oral, all
notices, requests, consents and approvals required to be given to or by
either party shall be in writing, and all such notices and requests
shall be personally delivered to the duly designated officer or
representative of such party or delivered to the office of such officer
or representative during regular business hours, or forwarded to him or
to the party at such address by registered mail.
35. Construction and Application of Terms
35.1 The Section and subsection headings, if any, in this Agreement, are
inserted only as a matter of convenience and for reference and in no
way define, limit or describe the scope of intent of any provision
hereof.
36. Non-Liability of Individuals
36.1 Neither the Directors of Pan American or User nor any officers, agents
or employees thereof, shall be charged personally by the other with any
liability or held liable to the other under any term or provision of
this Agreement, or because of its execution or attempted execution, or
because of any breach or attempted or alleged breach thereof.
37. Abatement
37.1 Except for abatement of fees set forth in Sections 5.2, 5.3, 5.4 and
5.5 hereof, if at any time the User shall become entitled to abatement
of Fees by the provisions of this Agreement or otherwise, the abatement
of Fees shall be made on an equitable basis giving effect to the amount
and character of the Space, the use of which is denied the User as
compared with the entire Space.
39
38. Port Authority Consent
38.1 This Agreement shall become effective upon the execution hereof by all
parties hereto and the execution of a Consent Agreement between and
among the Port Authority, Pan American, and User.
39. Entire Agreement
39.1 This Agreement consists of the following: Sections 1 through 39 and
Exhibits A, B and C.
39.2 It constitutes the entire Agreement of the parties on the subject
matter hereof. It may not be changed, modified, discharged or extended
except by written instrument duly executed by Pan American and the
User. The User agrees that no representations or warranties shall be
binding upon Pan American unless expressed in writing in this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed these presents as of the
day and year first above written.
PAN AMERICAN WORLD AIRWAYS, INC.
ATTEST:
/s/ Illegible By /s/ John P. Kennedy
- ----------------------------- ----------------------------------------
(Title) Director
-----------------------------------
Metropolitan Air Facilities Division
ATLANTIC AVIATION CORPORATION
ATTEST: (User)
/s/ Thomas Cassidy By /s/ Illegible
- ----------------------------- ----------------------------------------
(Title) Sr. Vice President
-----------------------------------
40
Teterboro Airport
Agreement TA-121
Supplement No. 1
SUPPLEMENTAL AGREEMENT
THIS AGREEMENT, made this 1st day of January 1985 day of by and between PAN
AMERICAN WORLD AIRWAYS, INC. (hereinafter called "Pan American"), New York State
corporation, and ATLANTIC AVIATION CORPORATION, a Delaware corporation
(hereinafter called "the User"),
WITNESSETH, THAT:
WHEREAS, The Port Authority of New York and New Jersey (hereinafter called "The
Port Authority") is the owner of Teterboro Airport located in the Boroughs of
Teterboro, Moonachie and Hasbrouck Heights and in the Township of Lyndhurst,
County of Bergen in the State of New Jersey; and
WHEREAS, Pan American is the operator of Teterboro Airport and has the right to
operate and use the Airport under an agreement between Pan American and the Port
Authority dated September 19, 1967 ("Basic Agreement"); and
WHEREAS, Pan American and the User have entered into a Use and Occupancy
Agreement dated February 14, 1979, bearing file No. TA-121 (hereinafter called
"the Agreement"); and
WHEREAS Exhibit C of the Agreement shows a building entitled "Power Bldg"; and
WHEREAS the Power Bldg. is used exclusively by the Federal Aviation
Administration (FAA) for the storage of equipment;
NOW, THEREFORE, for and in consideration of the covenants, respective promises
and mutual agreements herein contained and made parties hereto, it is hereby
mutually agreed:
1) Effective January 1, 1985, the Power Building shall no longer be deemed
to be part of the Space under the Agreement.
2) In the event that the FAA shall at anytime vacate the Power Building,
then upon the effective date of such surrender by the FAA, the Power
Building shall be and become a part of the space under the Agreement
and shall be subject to all of the terms and provisions of the
Agreement.
3) Except as herein supplemented and amended, all the terms, conditions
and covenants of the Agreement shall be and remain in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have executed these presents as of the
day and year first above written.
ATTEST: Pan American World Airways, Inc.
/s/ Illegible
- ----------------------------- By /s/ Linda B. Young
----------------------------------------
Linda B. Young
Title Authorized Representative
-------------------------------------
Pan American World Airways, Inc.
ATTEST: Atlantic Aviation Corporation
/s/ Illegible
- ----------------------------- By /s/ Illegible
----------------------------------------
Title VP GM
-------------------------------------
2
CONSENT AGREEMENT
THIS AGREEMENT, dated as of January 1, 1985 by and among THE PORT AUTHORITY OF
NEW YORK AND NEW JERSEY (hereinafter called "the Port Authority") and PAN
AMERICAN WORLD AIRWAYS, INC. (hereinafter called "the Airport Operator") and
Atlantic Aviation, Corporation, a corporation in the State of Delaware
(hereinafter called "the User"),
WITNESSETH, THAT:
WHEREAS, the Port Authority and the Airport Operator have heretofore entered
into an agreement dated September 19, 1979 (which agreement, as the same has
been or may hereafter be supplemented and amended, is hereinafter called "the
Main Agreement"), pursuant to which the Airport Operator is operating and using
Teterboro Airport (hereinafter called "the Airport"); and
WHEREAS, pursuant to and in accordance with the terms of the Main Agreement, the
Airport Operator and the User have entered into a Use and Occupancy Agreement
dated February 14, 1979 which Use and Occupancy Agreement has been designated
TA-121; and
WHEREAS, Pan American and User desire to supplement the above referenced Use and
Occupancy Agreement, copy of which is attached hereto, made a part hereof and
hereafter called "the Supplement," subject to the consent of the Port Authority
and the execution of a Consent Agreement by and among the Airport Operator, the
User and the Port Authority; and
WHEREAS, the Port Authority, Pan American and the User entered into a Consent
Agreement dated as of February 14, 1979 (hereinafter called "the Use and
Occupancy Consent Agreement"), wherein the Port Authority gave its consent to
the Use and Occupancy Agreement;
NOW, THEREFORE, for and in consideration of the covenants and mutual agreements
herein contained, the Port Authority, the Airport Operator and the User hereby
agree effective as of January 1, 1985 as follows:
1. On the terms and conditions hereinafter set forth, the Port Authority
consents to the Supplement.
2. It is hereby specifically agreed that all of the terms and provisions
of the Use and Occupancy Consent Agreement shall apply with like effect
to this consent to the Supplement as though each and every such term
and such provision were incorporated herein.
3. Neither the Commissioners of the Port Authority nor any of them, nor
any officer, agent or employee thereof shall be held personally liable
to the Airport Operator or to the User under any term of provision of
this Consent Agreement to the Supplement or because of its execution or
because of any breach or alleged breach hereof.
IN WITNESS WHEREOF, the Port Authority, the Airport Operator and the User have
executed these presents.
THE PORT AUTHORITY OF NEW YORK
ATTEST: AND NEW JERSEY
/s/ Illegible
- --------------------------- By: /s/ Gerald P. Fitzgerald
--------------------------------------
SECRETARY Title: Deputy Director of Aviation
-----------------------------------
ATTEST: PAN AMERICAN WORLD AIRWAYS, INC.
/s/ Illegible
- --------------------------- By: /s/ Linda B. Young
--------------------------------------
Linda B. Young
SECRETARY
Title: Authorized Representative
-----------------------------------
Pan American World Airways, Inc.
ATLANTIC AVIATION CORPORATION
ATTEST:
/s/ F.S. Eyster By: /s/ Illegible
- ----------------------------- --------------------------------------
Corporate Secretary Title: VP GM
-----------------------------------
2
Teterboro Airport
Agreement TA-121
Supplement No. 2
SUPPLEMENTAL AGREEMENT
THIS AGREEMENT, made as of January 1, 1987 by and between PAN AMERICAN WORLD
AIRWAYS, INC., a New York State Corporation (hereinafter called "Pan American"),
and ATLANTIC AVIATION CORPORATION, (hereinafter called "the User"), a Delaware
Corporation,
WITNESSETH THAT:
WHEREAS, the Port Authority of New York and New Jersey (hereinafter called "the
Port Authority") is the owner of Teterboro Airport (hereinafter called "the
Airport") located in the boroughs of Teterboro, Moonachie and Hasbrouck Heights
and in the Township of Lyndhurst, County of Bergen in the State of New Jersey;
and,
WHEREAS, Pan American is the operator of the Airport and has the right to
operate and use the Airport under an agreement between Pan American and the Port
Authority dated September 19, 1967 (hereinafter called "the Basic Agreement");
and,
WHEREAS, the User and Pan American have entered into a Use and Occupancy
Agreement dated February 14, 1979, designated Agreement No. TA-121 (which
agreement as has heretofore been supplemented and amended is hereinafter called
"the Agreement"); and
WHEREAS, the User desires to extend the area of use and occupancy by
incorporating into the Agreement the area previously covered under a Use and
Occupancy Agreement dated June 14, 1972, designated Agreement NO. TA-028;
NOW, THEREFORE, for and in consideration of the convenants, respective promises
and mutual agreements herein contained and made by the parties hereto, it is
hereby mutually agreed as follows:
1. Effective January 1, 1987, Pan American hereby grants to the User the
right to use and occupy the additional area set forth as shown in
stipple on Exhibit A-2 attached hereto and made a part hereof, together
with all buildings, structures, improvements, additions and permanent
installations constructed and installed therein or thereon during the
reminder of the term of this Agreement (hereinafter to be deemed to be
a part of the "Space").
2. In addition to the Space set forth in diagonal hatching on Exhibit A-1,
from and after January 1, 1987 the Space set forth in stipple on
Exhibit A-2 shall become part of the Agreement and subject to all
terms, provisions and conditions of the Agreement.
3. Section 2.2.2 of the Agreement shall be deleted and the following
substituted therefore:
"2.2.2 for the sale of aircraft assemblies, aircraft accessories,
aircraft radio and electronic equipment and any component
parts thereof;"
4. Sections 5.9.2, 5.9.5, 5.9.6, 5.9.6.1,5.9.6.2, 5.9.6.3, 5.9.6.4,
5.9.7, 5.9.8 and 6.5 of the Agreement shall be deleted in their
entirety.
5. The User agrees to use the portion of the Space outlined in stipple on
Exhibit A-2 shall be and become a part of Area A under the Agreement
and used, for purposes as outlined in Section 2.2 of the Agreement and
for no other purposes.
6. The following Subsections 5.10, 5.11, 5.11.1,5.11.2 and 5.11.3 shall
be added to Section 5 "Fees to Pan American", of the Agreement:
5.10 Effective January 1 , 1987 and continuing each and every month
throughout the remaining term of the Agreement, the User
agrees to pay to Pan American a monthly fee of Six Thousand
Nine Hundred Forty Eight Dollars and Forty Three Cents
($6,948.43) for the additional portion of the Space as shown
in stipple on Exhibit A-2. The fee is in addition to that
specified in Section 5.1 of the Agreement.
5.11 Effective March 1, 1989 and continuing for the next succeeding
sixty (60) monthly payments the monthly fee as stated in
Section 5.10 above shall be Six Thousand Nine Hundred Forty
Eight Dollars and Forty Three Cents ($6,948.43) multiplied by
a fraction the numerator of which shall be the Consumer Price
Index for all Urban Consumers of the Bureau of Labor
Statistics of the United States Department of Labor, all
items, Selected Large Cities, for the New York - Northeastern
New Jersey area (hereinafter called "the CPI") as published
for the month of February 1989 and the denominator of which
shall be the CPI published for the month of October 1984.
5.11.1 Effective March 1, 1994 and continuing for the next succeeding
sixty (60) monthly payments the monthly fee as stated in
Section 5.10 above shall be computed in the same manner as in
Section 5.11 above except that the numerator of the fraction
shall be the CPI published for the month of February 1994.
5.1.2 Effective March 1, 1999 and continuing throughout the
remaining term of the Agreement, the monthly fee as stated in
Section 5.10 above shall be computed in the same manner as in
Section 5.11 above, except that the numerator of the fraction
shall be the CPI published for the month of February 1999.
5.11.3 In computing the adjustments for the monthly fee stated in
Section 5.10, in no event shall the monthly fee be less than
the monthly fees payable during the year period immediately
preceding."
7. The following words shall be inserted in the last sentence of Section
5.1 of the Agreement after the words "hereinafter provided";
2
",for the portion of the Space as shown in diagonal hatching on Exhibit
A-1."
8. The following words shall be inserted after the words "the monthly fee"
on the third line of the first sentence of Section 5.8 of the
Agreement:
"for the portion of the Space as shown in diagonal hatching on Exhibit
A-1."
9. The following Subsections 16.1.1 and 16.1.2 shall be added to Section
16 of the Agreement:
16.1.2 Notwithstanding the above, the User agrees that Pan American
will not grant the right of sub-use of the entire Space to a
single entity or individual or to various entities or
individuals controlled, represented or managed by a single
entity or individual."
10. The following words shall be inserted after the words "Exhibits A-1, B
and C" on the second line of the first sentence of Section 39.1 of the
Agreement pursuant to the terms of Supplement No. 1:
"and A-2"
11. Except as supplemented and amended herein, all of the covenants terms
and conditions of the Agreement shall remain in full force and effect.
12. Neither the Directors of Pan American, its subsidiaries and affiliates,
nor any of their officers, agents or employees thereof, shall be
charged personally by the User with any liability or held liable to it
under any term or provision of this Agreement, or because of its
execution or attempted execution, or because of any breach or attempted
or alleged breach thereof.
3
IN WITNESS WHEREOF, the parties hereto have executed these presents as of the
day and year first above written.
PAN AMERICAN WORLD AIRWAYS, INC.
ATTEST: By /s/ Linda B. Young
------------------------------------
/s/ Illegible
- ----------------------------- Title: Authorized Representative
--------------------------------
ATLANTIC AVIATION CORPORATION
ATTEST: By /s/ Illegible
/s/ F.S. Eyster ------------------------------------
- -----------------------------
Title: VP GM
--------------------------------
4
CONSENT AGREEMENT
THIS AGREEMENT, dated as of January 1, 1987 by and among THE PORT AUTHORITY OF
NEW YORK AND NEW JERSEY (hereinafter called "the Port Authority") and PAN
AMERICAN WORLD AIRWAYS, INC. (hereinafter called "the Airport Operator" and
ATLANTIC AVIATION CORPORATION (hereinafter called "the User"),
WITNESSETH, THAT:
WHEREAS, the Port Authority and the Airport Operator have heretofore entered
into an agreement dated September 19, 1967 (which agreement, as the same has
been or may hereafter be supplemented and amended, is hereinafter called "the
Main Agreement"), pursuant to which the Airport Operator is operating and using
Teterboro Airport (hereinafter called "the Airport"); and
WHEREAS, pursuant to and in accordance with the terms of the Main Agreement, the
Airport Operator and the User have entered into a Use and Occupancy Agreement
dated February 14, 1979 which Use and Occupancy Agreement has been designated
TA-121; and
WHEREAS, Pan American and User desire to supplement the above referenced Use and
Occupancy Agreement, copy of which is attached hereto, made a part hereof and
hereafter called "the Supplement," subject to the consent of the Port Authority
and the execution of a Consent Agreement by and among the Airport Operator, the
User and the Port Authority; and
WHEREAS, the Port Authority, Pan American and the User entered into a Consent
Agreement dated as of February 14, 1979 (hereinafter called "the Use and
Occupancy Consent Agreement"), wherein the Port Authority gave its consent
to the Use and Occupancy Agreement;
NOW, THEREFORE, for and in consideration of the covenants and mutual agreements
herein contained, the Port Authority, the Airport Operator and the User hereby
agree effective as of January 1, 1987 as follows:
1. On the terms and conditions hereinafter set forth, the Port Authority
consents to the Supplement.
2. It is hereby specifically agreed that all of the terms and provisions
of the Use and Occupancy Consent Agreement shall apply with like effect
to this consent to the Supplement as though each and every such term
and such provision were incorporated herein.
3. Neither the Commissioners of the Port Authority nor any of them, nor
any officer, agent or employee thereof shall be held personally liable
to the Airport Operator or to the User under any term of provision of
this Consent Agreement to the Supplement or because of its execution or
because of any breach or alleged breach hereof.
IN WITNESS WHEREOF, the Port Authority, the Airport Operator and the User have
executed these presents.
THE PORT AUTHORITY OF NEW YORK
ATTEST: AND NEW JERSEY
/s/ Illegible By: /s/ Gerald P. Fitzgerald
- --------------------------- --------------------------------------
SECRETARY Title: Deputy Director of Aviation
-----------------------------------
ATTEST: PAN AMERICAN WORLD AIRWAYS, INC.
/s/ Illegible
- --------------------------- By: /s/ Linda B. Young
Secretary --------------------------------------
Linda B. Young
Title: Authorized Representative
-----------------------------------
Pan American World Airways, Inc.
ATLANTIC AVIATION CORPORATION
ATTEST:
/s/ F.S. Eyster By: /s/ Illegible
- --------------------------- --------------------------------------
Corporate Secretary Title: VP GM
-----------------------------------
2
Teterboro Airport
Agreement TA-121
Supplement No. 3
SUPPLEMENTAL AGREEMENT
THIS AGREEMENT, dated this 1st day of January, 1995 by and between
JOHNSON CONTROLS WORLD SERVICES INC. (hereinafter called "Johnson Controls") a
Florida corporation, and ATLANTIC AVIATION CORPORATION, a Delaware corporation
(hereinafter called "the User").
WITNESSETH, THAT:
WHEREAS, The Port Authority of New York and New Jersey (hereinafter
called "the Port Authority") is the owner of Teterboro Airport located in the
Boroughs of Teterboro, Moonachie and Hasbrouck Heights and in the Township of
Lyndhurst, County of Bergen in the State of New Jersey; and
WHEREAS, Johnson Controls is the operator of Teterboro Airport and has
the right to operate and use the Airport as successor - assignee to an agreement
between Pan American World Airways, Inc. ("Pan American") and the Port Authority
dated September 19, 1967 ("Basic Agreement"); and
WHEREAS, a Use and Occupancy Agreement, bearing file No. TA-121 and
made effective as of February 14, 1979, was entered into between Pan American
and the User for the use and occupancy of certain Space at Teterboro Airport
(which Use and Occupancy Agreement as has heretofore been supplemented and
amended is hereinafter referred to as "the Agreement"); and
WHEREAS, the User desires to extend the area of use and occupancy
covered under this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements and
respective promises herein contained, and made by the parties hereto, the
parties hereby agree, effective as of the date of this Supplemental Agreement,
as follows:
1. Effective June 1, 1995, Johnson Controls here by grants to the
User the right to use and occupy the additional area set forth
as shown in stipple on Exhibit A-3, attached hereto and made a
part hereof, together with all buildings, structures,
improvements, additions and permanent installations
constructed and installed therein or thereon during the
reminder of the term of this Agreement (hereinafter to be
deemed to be a part of the "Space").
2. In addition to the Space set forth in diagonal hatching on
Exhibit A-1 and the Space set forth in stipple on Exhibit A-2,
from and after January 1, 1995, the Space set forth in cross
hatching on Exhibit A-3 shall become part of the Agreement and
subject to all terms, provisions and conditions of the
Agreement.
3. The User agrees to use the portion of the Space outlined in
cross hatching on Exhibit A-3 for the purpose of parking of
automobiles and other vehicles operated by officers,
employees, invitees and business visitors of the User and for
no other purposes.
4. The following Subsections 5.12, 5.13 and 5.13.1 shall be added
to Section 5 "Fees", of the Agreement
5.12 Effective 1, 1995 and continuing each and every month
throughout the remaining term of the Agreement the
User agrees to pay to Johnson Controls a monthly fee
of Six Hundred Eighty Nine Dollars ($689.00) for the
additional portion of the Space as shown in cross
hatching on Exhibit A-3. The fee is in addition to
that specified in Subsection 5.1 of the Agreement and
5.10 of Supplement No. 2 to the Agreement.
5.13 Effective March 1, 1999 and continuing throughout the
remaining term of the Agreement, the monthly fee as
stated in Subsection 5.12 above shall be Six Hundred
Eighty Nine Dollars ($689.00) multiplied by a
fraction the numerator of which shall be the CPI as
published for the month of February 1999 and the
denominator of which shall be the CPI published for
the month of June 1993.
5.13.1 In computing the adjustments for the monthly fee
stated in Subsection 5.12, in no event shall the
monthly fee be less than the monthly fee payable
during the year period immediately preceding.
5. The User hereby agrees to construct on the Space, as shown in
cross hatching on Exhibit A-3, paving to accommodate the
approved uses of said Space, together with the clearing and
grading of the ground area contained within said Space and the
installation on or in said Space such utilities as may be
appropriate or necessary for the utilization of said Space for
the permitted uses.
6. The User agrees to perform the construction stated in
paragraph 5 above in accordance the requirements of Section 3
"Construction by User" of the Agreement, to submit a
construction application and complete plans and specifications
of such proposed construction and obtain Port Authority
approval of the construction application prior to start of
construction.
7. The following words shall be inserted after the words
"Exhibits A-1, B and C and A-2" on the second line of the
first sentence of Subsection 39.1 of the Agreement pursuant to
the terms of Supplement No. 2:
"and A-3"
8. Except as herein supplemented, all terms, provisions,
covenants and conditions of the Agreement shall continue in
full force and effect.
2
9. Neither the Directors of Johnson Controls, its subsidiaries
and affiliates, nor any officers, agents, or employees
thereof, shall be charged personally by the User with any
liability or held liable to it under any term of provision of
this Agreement, or because of its execution or attempted
execution, or because of any breach or attempted or alleged
breach thereof.
IN WITNESS WHEREOF, the parties hereto have executed these presents as
of the day and year first above written.
ATTEST: JOHNSON CONTROLS WORLD SERVICES INC.
/s/ Illegible By: /s/ Illegible
- ----------------------------- ----------------------------------
Title: Illegible Title: Vice President
- ----------------------------- --------------------------------
ATTEST: ATLANTIC AVIATION CORPORATION
/s/ F.S. Eyster By: /s/ Illegible
- ----------------------------- ----------------------------------
Title: Secretary Title: SR VP
- ----------------------------- --------------------------------
3
I, Franklin S. Eyster, II, certify that I am the Secretary of the corporation
named in the attached agreement, that Joseph J. McShulkis who signed said
authorized agreement on behalf of the corporation was then the Sr. Vice
President of said corporation; that said, agreement was duly signed for and in
behalf of said corporation by authority of its governing body, and is within the
scope of its corporate powers.
/s/ Franklin S. Eyster, II
------------------------------------
(Signature)
(Corporate Seal)
STATE OF DELAWARE
----------
COUNTY OF NEW CASTLE
----------
On this 26th day of April, One Thousand Nine Hundred and Ninety Five
before me, Victoria A. Tait, a Notary Public in and for the County of New
Castle, State of Delaware, duly commissioned and qualified, personally appeared
Franklin S. Eyster, II, known to me to be the person described in and whose name
is subscribed to the attached instrument, and acknowledged to me that he
executed the instrument for the purposes and consideration therein stated.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my office
seal, at my office the day and year in this certification first written above.
By: /s/ Victoria A. Tait
-----------------------------
My Commission Expires:
August 27, 1998
- -----------------------------
Teterboro Airport
Agreement TA-121
Supplement No. 3
CONSENT AGREEMENT
THIS AGREEMENT, dated as of January 1, 1995 by and among THE PORT AUTHORITY OF
NEW YORK AND NEW JERSEY (hereinafter called "the Port Authority") and JOHNSON
CONTROLS WORLD SERVICES INC. (hereinafter called "the Airport Operator") and
ATLANTIC AVIATION CORPORATION (hereinafter called "the User"),
WITNESSETH, THAT:
WHEREAS, the Port Authority and the Airport operator have heretofore entered
into an agreement dated September 19, 1967 (which agreement, as the same has
been or may hereafter be supplemented and amended, is hereinafter called "the
Main Agreement"), pursuant to which the Airport Operator is operating and using
Teterboro Airport (hereinafter called "the Airport"); and
WHEREAS, pursuant to and in accordance with the terms of the Main Agreement, the
Airport Operator and the User have entered into a Use and Occupancy Agreement
made effective as of February 14, 1979 with the consent of the Port Authority
(which consent was set forth in an agreement hereinafter called the "Consent
Agreement") which Use and Occupancy Agreement has been designated TA-121; and
WHEREAS, Airport Operator and User desire to supplement the above referenced Use
and Occupancy Agreement, copy of which is attached hereto, made a part hereof
and hereafter called "the Supplement," subject to the consent of the Port
Authority and the execution of a Consent Agreement by and among the Airport
Operator, the User and the Port Authority; and
NOW, THEREFORE, for and in consideration of the covenants and mutual agreements
herein contained, the Port Authority, the Airport Operator and the User hereby
agree, effective as of the effective date of the Supplement, as follows:
1. On the terms and conditions hereinafter set forth, the Port Authority
consents to the Supplement.
2. It is hereby specifically agreed that all of the terms and provisions
of the Use and Occupancy Consent Agreement shall apply with like effect
to this consent to the Supplement as though each and every such term
and such provision were incorporated herein.
3. Neither the Commissioners of the Port Authority nor any of them, nor
any officer, agent or employee thereof shall be held personally liable
to the Airport Operator or the User under any term of provision of this
Consent Agreement to the Supplement or because of its execution or
because of any breach or alleged breach hereof.
IN WITNESS WHEREOF, the Port Authority, the Airport Operator and the User have
executed these presents.
ATTEST: THE PORT AUTHORITY OF NEW YORK AND
NEW JERSEY
/s/ Illegible By: /s/ Gary L. Davis
- ----------------------------------- ----------------------------------
Title: Acting Secretary Title: Gary L. Davis
--------------------------- General Manager
Central Business Division
Aviation Department
-------------------------------
ATTEST: JOHNSON CONTROLS WORLD SERVICES INC.
(Airport Operator)
/s/ Illegible
By: /s/ Illegible
- ----------------------------------- ----------------------------------
Title: Illegible Title: Vice President
--------------------------- -------------------------------
ATTEST: ATLANTIC AVIATION CORPORATION
(USER)
/s/ Illegible By: /s/ Illegible
- ----------------------------------- ----------------------------------
Title: Illegible Title: SR VP
--------------------------- -------------------------------
2
CERTIFICATE OF OCCUPANCY
Pursuant to the provisions of Section 3.6.14 of Use and Occupancy
Agreement TA-121 (hereinafter referred to as the "Agreement") between Atlantic
Aviation Corporation (hereinafter referred to as "Atlantic Aviation") and Pan
American World Airways, Inc. (hereinafter referred to as "Pan American");
Pan American having received from Atlantic Aviation, in compliance with
the aforesaid section of the Agreement, a Certificate of Substantial Completion
of the construction work as part of said Agreement, and;
Pan American having inspected said construction work and having found
it completed as specified by Atlantic Aviation;
Pan American does hereby permit use of the construction work for the
purposes set forth in the Agreement.
Notwithstanding the above, Atlantic Aviation assumes all risks
hereafter with respect to the construction work and any liability therefor for
negligence or other reason.
PAN AMERICAN WORLD AIRWAYS, INC.
By: /s/ John P. Kennedy
----------------------------------
Director
Dated: July 31, 1981
---------
Teterboro Airport
Agreement TA-121
Supplement No. 4
SUPPLEMENTAL AGREEMENT
THIS AGREEMENT, dated this 18 day of May, 1999 by and between JOHNSON
CONTROLS WORLD SERVICES INC. (hereinafter called "Johnson Controls"), a Florida
corporation, and ATLANTIC AVIATION CORPORATION (hereinafter called "the User"),
a Delaware corporation.
WITNESSETH, THAT:
WHEREAS, The Port Authority of New York and New Jersey (hereinafter
called "the Port Authority") is the owner of Teterboro Airport (the "Airport")
located in the Boroughs of Teterboro, Moonachie and Hasbrouck Heights and in the
Township of Lyndhurst, County of Bergen in the State of New Jersey; and
WHEREAS, Johnson Controls is the operator of the Airport and has the
right to operate and use the Airport as successor - assignee to an agreement
between Pan American World Airways, Inc. ("Pan American") and the Port Authority
dated September 19, 1967 ("Basic Agreement"); and
WHEREAS, a Use and Occupancy Agreement dated February 14, 1979 was
entered into between Pan American and the User for the use and occupancy of
certain Space at Teterboro Airport, bearing file No. TA-121 (which Use and
Occupancy Agreement, as has heretofore been supplemented or amended, is
hereinafter referred to as the "Agreement"); and
WHEREAS, the User desires to construct and Johnson Controls desires to
permit the User to construct a hangar facility at the Space provided for in the
Agreement and in consideration of said construction extend the term of the
Agreement,
NOW, THEREFORE, in consideration of the mutual agreements and
respective promises herein contained and made by the parties hereto, the parties
hereby agree, effective as of June 1, 1999 (the "Effective Date" of this
Supplement) unless otherwise stated, as follows:
1. Effective on May 31, 1999, Exhibits A-1, A-2 and A-3 to the
Agreement shall be deemed deleted and of no further effect,
and reference to "Exhibits A-1"," A-2" and "A-3" in the
Agreement shall be deleted and substituted by the reference
"Exhibit A-4."
2. Effective on June 1, 1999, the Space under the Agreement shall
be the area set forth in hatching and cross hatching on
Exhibit A-4, attached hereto and made a part hereof, together
with all buildings, structures, improvements, additions and
permanent installations constructed and installed or to be
constructed and installed therein or thereon or thereunder
during the remainder of the term of this Agreement
(hereinafter collectively referred to as the "Space").
3. The parties hereby agree that within six (6) months of the
date of execution by the Port Authority of the Consent
Agreement granting the Port Authority's consent to this
Supplement No. 4 to the Agreement, the User shall, in
accordance with subsection 3.3 of the Agreement, submit plans
and specifications for the demolition of the facility
currently on the Space in Area No. 1 known as Hangar 2 and the
construction of a replacement facility consisting of a minimum
of 30,000 square feet of aircraft hangar space to ether with
approximately 7,500 square feet of adjoining office and shop
space (hereinafter referred to as the "Construction Work")
with a minimum investment of Four Million Dollars
($4,000,000.00). Upon approval by the Port Authority of said
plans and specifications the User agrees to promptly commence
performance of the construction work as provided for in
Section 3 of the Agreement and to complete construction within
one (1) year from the date of Port Authority approval.
4. The parties acknowledge that the Consent Agreement granting
the Port Authority's consent to this Supplemental Agreement
and the matters herein set forth shall provide that the
expiration date of December 30, 1999, as referenced in Section
1, "Term" of the Agreement shall be changed to expire, unless
sooner terminated as hereinafter provided or as provided for
in the Consent Agreement, on the day before the Twentieth
(20th) Year Anniversary of the Completion Date, as defined in
subsection 3.6.14 of the Agreement and as amended by Paragraph
7 of this Supplemental Agreement, of construction as provided
for in Paragraph 3 hereof.
5. Effective on December 30, 1999, the User's right to use and
occupy the portion of the Space in Area 4 shall be terminated.
6. Subsection 3.2 of the Agreement shall be deleted in its
entirety and the following substituted therefor:
"3.2 The User agrees to complete the construction of the
facility set forth in Paragraph 3 of Supplement No. 4
to the Agreement on or before twelve (12) months from
the commencement of construction as set forth in
subsection 3.4 below and Paragraph 3 of said
Supplement, provided, however, the User shall not be
held in default under this subsection in the event
construction cannot be completed within the said time
limit due to Force Majure."
7. Subsection 3.6.14 of the Agreement shall be deleted in its
entirety and the following substituted therefor:
"3.6.14 When the construction work on the new Hangar 2
facility is substantially completed and is ready for
use by the User, the User shall advise Johnson
Controls to such effect and shall deliver to Johnson
Controls a certificate by an authorized officer of
the User and the User's architect or engineer
certifying that such construction work has been
constructed strictly in accordance with the approved
plans and specifications and the provisions
2
of the Agreement and Supplement No. 4 to the
Agreement and in compliance with all applicable laws,
ordinances and governmental rules, regulations and
orders. Within thirty (30) days after receipt of said
certificate from the User, such construction work
will be inspected by Johnson Controls and if the same
has been completed as certified by the User, a
certificate to such effect shall be delivered to the
User, subject to the condition that all risks
thereafter with respect to the construction and
installation of the same and any liability therefor
for negligence or other reason shall be borne by the
User.
The User shall not use or permit the use of the
construction work for the purpose set forth in this
Agreement until such certificate is received from
Johnson Controls. The date of delivery of the
certificate by Johnson Controls shall constitute the
Completion Date for the purposes of the Agreement."
8. The User hereby agrees to upgrade, improve and refurbish
Hangar 3 located on the Space. The specific list of these
upgrades, improvements and refurbishments (hereinafter
referred to as the "Construction Work") are shown in Exhibit
D, attached hereto and made a part hereof Said upgrades,
improvements and refurbishments shall be done in accordance
with Section 3 of the Agreement, have a cost of not less that
Five Hundred Thousand Dollars ($500,000.00), and be completed
within one (1) year of the Completion Date of the new Hangar 2
facility.
9. In the event that Taxiway P at the Airport is relocated, then,
upon notice by Johnson Controls to the User that said Taxiway
has been decommissioned, Area 3 as shown on Exhibit A-4 shall
be added to and become part of the Space as herein defined.
The User shall proceed expeditiously and with all reasonable
diligence, in accordance with Section 3 of the Agreement, to
pave and construct an aircraft parking ramp on said Area 3.
10. In the event that the Airport's administrative office is
relocated and the existing structure is demolished, then, upon
notice by Johnson Controls to the User that said building has
been demolished, Area 2 as shown on Exhibit A-4 shall be added
to and become part of the Space as herein defined. The User
shall proceed expeditiously and with all reasonable diligence,
in accordance with Section 3 of the Agreement, to construct an
aircraft hangar facility consisting of a minimum of 30,000
square feet of aircraft hangar space together with
approximately 7,500 square feet of adjoining office and shop
space (hereinafter referred to as the "Construction Work")
with a minimum investment of Four Million Dollars
($4,000,000.00) in accordance with plans and specifications to
be submitted by the User to the Port Authority for its
approval and in accordance with Section 3 of the Agreement.
The User shall pay to Johnson Controls the then prevailing
land use fee for Area 2, in addition to all other fees and
charges.
3
11. The following subsections 5.14, 5.15, 5.16, 5.17, 5.18, 5.19
and 5.20 shall be added to Section 5 "Fees" of the Agreement:
"5.14 Effective on the Effective Date of Supplement No. 4
to the Agreement and continuing until December 31,
1999, the User shall pay to Johnson Controls a total
monthly fee of Seventy-eight Thousand Nine Hundred
Ninety-three Dollars and Thirty-eight Cents
($78,993.38), as detailed on Exhibit E, attached
hereto and made a part hereof.
5.14.1 Upon notice by the User to the Port Authority of the
date that it has vacated and no longer using the
existing structure known as Hangar 2 and is prepared
to demolish it, the total monthly fee stated above
shall be abated from and after said date by the then
current building rental fee.
5.15 In the event that the construction set forth in
Paragraph 3 of Supplement No. 4 of the Agreement is
not completed in the time frame set forth therein and
in subsection 3.2 above, as amended by Paragraph 6 of
Supplement No. 4 of the Agreement, the User agrees to
pay to Johnson Controls a surcharge equal to Nineteen
Thousand Six Hundred Twenty-six Dollars and
Forty-eight Cents ($19,626.48) representing one half
(1/2) of the monthly land use fee as stated in
subsection 5.14 above, for each month, or fraction
thereof, that the completion of construction extends
beyond the twelve (12) month time frame. This
surcharge shall be in addition to all other fees and
charges set forth in this Section.
5.16 In the event that Area 3 as shown on Exhibit A-4
becomes part of the Space prior to December 31, 1999,
effective on the date of notice to such effect and
continuing until December 31, 1999, the User shall
pay to Johnson Controls a monthly land use fee of
Thirty-five Thousand Nine Hundred Sixty-six Dollars
and Forty Cents ($35,966.40).
5.17 Effective January 1, 2000 the User shall pay to
Johnson Controls a total monthly fee for building
space and land area in Area 1 determined as follows:
a total base fee of One Hundred Ninety-five Thousand
One Hundred Seven Dollars and Thirty-three Cents
($195,107.33) shall first be multiplied by a
fraction, the numerator of which shall be the CPI as
published for the month of December 1999 and the
denominator of which shall be the CPI published for
the month of December 1998 and the User shall pay the
product thereof on January 1, 2000 and on the first
day of each and every month thereafter. In computing
the total monthly fee payable January 1, 2000 in no
event shall the monthly fee be less than One Hundred
Ninety-five Thousand One Hundred Seven Dollars and
Thirty-three Cents ($195,107.33).
5.17.1 In the event that Area 3 as shown on Exhibit A-4 has
become part of the Space, effective January 1, 2000
the User shall pay to Johnson Controls a total
monthly fee for the land area in Area 3 determined as
follows: a total
4
base fee of Thirty-five Thousand Nine Hundred
Sixty-six Dollars and Forty Cents ($35,966.40) shall
first be multiplied by a fraction, the numerator of
which shall be the CPI as published for the month of
December 1999 and the denominator of which shall be
the CPI published for the month of December 1998 and
the User shall pay the product thereof on January 1,
2000 and on the first day of each and every month
thereafter. In computing the total monthly fee
payable January 1, 2000 in no event shall the monthly
fee be less than Thirty-five Thousand Nine Hundred
Sixty-six Dollars and Forty Cents ($35,966.40).
5.17.2 Effective January 1, 2001 and annually thereafter the
User shall pay to Johnson Controls a total monthly
fee for building and land for Area 1 and Area 3, if
then a part of the Space, equal to the greater of
either the prior year's fee multiplied by a fraction,
the numerator of which shall be the CPI as published
for the month of December of the year prior to the
affected year and the denominator of which shall be
the CPI published for the month of December of two
years prior to the affected year or the prior year's
fee. In computing the total monthly fee payable in no
event shall the monthly fee be less than the prior
year's fee or increased by an amount greater than six
percent (6 %).
5.18 Johnson Controls reserves the right, at its option,
to perform a real estate appraisal of the User's
Space in the year 2009. In the event that such an
appraisal is performed, from and after January 1,
2010 the monthly fee payable by the User shall be the
greater of either (i) one twelfth of the appraised
building rate for Hangar 3 and Hangar 4 plus the
appraised land rate for Area 1 and 3, if Area 3 is
then a part of the Space or (ii) the December 2009
total monthly fee payable for Area 1 and 3 multiplied
by a fraction the numerator of which shall be the CPI
as published for the month of December 2009 and the
denominator of which shall be the CPI published for
the month of December 2008. In the event that the fee
calculated in accordance with (ii) above is fifteen
percent (15%) or higher than that calculated in
accordance with (i) above, then the monthly fee
payable effective January 1, 2010 would be the
greater of (a) the fee payable January 2000 adjusted
annually by 1/2 of the change in the CPI or (b) the
rate calculated per (i) above.
5.18.1 In the event that a real estate appraisal of the
User's Space is not performed in the year 2009,
effective January 1, 2010 the User shall pay to
Johnson Controls a total monthly fee for building and
land for Area 1 and Area 3, if then a part of the
Space, equal to the greater of either (i) the fee
payable December 1, 2009 multiplied by a fraction,
the numerator of which shall be the CPI as published
for the month of December 2009 and the denominator of
which shall be the CPI published for the month of
December 2008 or (ii) the rate payable December 1,
2009. In computing the total monthly fee payable in
no event shall the monthly fee be less than
5
the prior year's fee or increased by an amount
greater than six percent (6%).
5.19 Effective January 1, 2011 and annually thereafter the
User shall pay to Johnson Controls a total monthly
fee for building and land for Area 1 and Area 3, if
then a part of the Space, equal to the greater of (i)
the prior year's fee multiplied by a fraction, the
numerator of which shall be the CPI as published for
the month of December of the year prior to the
affected year and the denominator of which shall be
the CPI published for the month of December of two
years prior to the affected year, or (ii) the rate
payable December of the prior year. In computing the
total monthly fee payable in no event shall the
monthly fee be less than the prior year's fee or
increased by an amount greater than six percent (6%).
5.20 In the event that the term of the Agreement is
extended beyond the twenty (20) year anniversary of
the completion of the construction provided for in
Paragraph 3 of Supplement No. 4 of the Agreement due
to the later completion of the construction provided
for in Paragraph 10 above, the User shall, from the
day after the twentieth (20th) year anniversary of
the Completion Date of the construction provided for
in Paragraph 3 of Supplement No. 4 of the Agreement
until the expiration of the term of the Agreement,
pay to Johnson Controls a monthly building rental fee
based upon the appraised building rate derived from a
real estate appraisal performed of the facility, with
the appraiser to be selected by the Port Authority.
If an appraisal is not conducted the building rental
fee will be determined using the prevailing rate for
comparable space at the Airport or the existing rate
increased by the CPI, whichever is higher.
5.20.1 Effective on the January 1st following the twentieth
(20th) year anniversary of the Completion Date
described in Paragraph 3 of Supplement No. 4 of the
Agreement and annually thereafter, the User shall pay
to Johnson Controls the monthly building rental fee
stated above, multiplied by a fraction, the numerator
of which shall be the CPI as published for the month
of December of the year immediately preceding January
1 of the fee increase and the denominator of which
shall be the CPI published for the month of December
two years preceding. In computing the total monthly
fee payable in no event shall the monthly fee be less
than the year preceding."
12. In accordance with the construction required in Section 3 of
the Agreement, the User hereby agrees to use its reasonable
efforts to ensure that minority business enterprises (M.B.E.)
and women-owned business enterprises (W.B.E.) as defined in 49
CFR Part 23 have the maximum opportunity to participate in
said construction. The participation goal for M.B.E. and
W.B.E. participation in the total contract price shall be
twelve percent (12%) for firms owned and controlled by
minorities and five percent (5%) for firms owned and
controlled by women.
6
13. (a) The following Subsection 12.10 shall be added to Section
12 of the Agreement entitled "Various Obligations of the
User":
"12.10 The following terms shall have the following
respective meanings as used herein:
12.10.1 "Environmental Damages" shall mean any one or more of
the following: (i) the presence on, about or under
the Space of any Hazardous Substance, as hereinafter
defined, and/or (ii) the disposal, release or
threatened release of any Hazardous Substance from
the Space, and/or (iii) an Off-Space Hazardous
Substance, as hereinafter defined, and/or (iv) any
personal injury (including wrongful death) or
property damage arising out of or related to such
Hazardous Substances, and/or (v) the violation of any
Environmental Requirements, as hereinafter defined,
pertaining to such Hazardous Substances or Off-Space
Hazardous Substances, the Space and/or the activities
thereon.
12.10.2 "Environmental Requirements" and "Environmental
Requirement" shall mean all applicable present and
future laws, statues, enactments, resolutions,
regulations, rules, ordinances, codes, licenses,
permits, orders (including agreed upon consent
orders), approvals, plans, authorizations,
concessions, franchises, requirements and similar
items, of all Governmental Agencies, and all
applicable judicial, administrative, and regulatory
decrees, judgments, and orders relating to the
protection of human health or the environment, and in
the event that there shall be more than one
compliance standard, as among the various
Governmental Agencies, the standard for any of the
foregoing to be that which requires the lowest level
of a Hazardous Substance taking into account the
nature and intended use of the Space, the foregoing
to include without limitation:
(a) All requirements pertaining to
reporting, licensing, permitting, investigation and
remediation of emissions, discharges, releases, or
threatened releases of Hazardous Substances into the
air, surface water, groundwater, or land, or relating
to the manufacture, processing, distribution, use
treatment, storage, disposal, transport, or handling
of Hazardous Substances; and
(b) All Environmental Requirements
pertaining to the protection of the health and safety
of employees or the public.
12.10.3 "Hazardous Substances" and "Hazardous Substance"
shall mean and include without limitation any
pollutant, contaminant, toxic or hazardous waste,
dangerous substance, potentially dangerous substance,
noxious substance, toxic substance, flammable,
explosive or radioactive material, urea formaldehyde
foam insulation, asbestos, polychlorinated biphenyls
(PCBs), chemicals known to cause cancer or
reproductive toxicity,
7
petroleum and petroleum products and other substances
which have been or in the future shall be declared to
be hazardous or toxic, or the removal of which have
been or in the future shall be required, or the
manufacture, preparation, production, generation,
use, maintenance, treatment, storage, transfer,
handling or ownership of which have been or in the
future shall be restricted, prohibited, regulated or
penalized by any Environmental Requirement.
12.10.4 "Off-Space Hazardous Substance" shall mean the
presence of any Hazardous Substance in, about or
under property at the Airport other than the Space as
a result of the User's use and occupancy of the
Space, whether by migration, release, discharge or
any other manner, it being understood that the User
shall have the burden of proof to establish that any
migration of a Hazardous Substance from the Space was
not a result of the User's use and occupancy of the
Space.
(b) The User, prior to the execution of this Agreement,
had thoroughly examined the Space and determined it to be
suitable for the User's operations hereunder and the User
restates and continues said determination in connection with
the extension hereunder. Except as otherwise provided herein,
the User hereby agrees to assume all responsibility for any
and all risks, costs and expenses of any kind whatsoever
caused by, arising out of or in connection with the condition
of the Space whether any aspect of such condition existed
prior to, on or after the effective date of the letting of the
Space, including, without limitation, all Environmental
Requirements and Environmental Damages, as herein defined and
all soil remediation to the extent required under
Environmental Requirements, including but not limited to,
remediation which may be required as a result of discovery of
any contaminants while performing test borings or in the
performance of any construction work, and to indemnify and
hold harmless the Port Authority and Johnson Controls with
respect to third party claims for Section 8 of this Agreement,
as amended. Notwithstanding the foregoing, the User shall be
responsible for the removal of and remediation of Hazardous
Substances placed, or permitted or caused to be placed, on, in
or under the Space by the User or by its employees, agents,
contractors, or others using or occupying the Space under this
Agreement.
14.0. Port Authority's Additional Rights to Recapture or Accommodate
Others on Portions of User's Ramp Space
The User acknowledges that the Airport serves the
transportation needs of the public and that the Public
Aircraft Facilities should be utilized to the fullest extent
possible with airport users afforded fair and reasonable
access. The User also acknowledges that the following
subsections provide that if the User does not utilize its
facilities to the level set forth in stated performance
criteria such underutilized facilities may be either
recaptured by the Port Authority or required to be offered by
the User to another user in accordance with the following:
8
14.1. It is hereby agreed that, commencing either one year after the
effective date of the addition of Area 3 to the Space, or January 1,
2002, whichever occurs earlier and which will be known as the "Start
Date", and for each and every calendar year thereafter, the Port
Authority may ascertain the User's percentage share (hereinafter
referred to as the "User's Current Fuel Share") of the total aircraft
fuel gallons sold (hereinafter referred to as "Total Current Fuel
Dispensed") at the Airport for the preceding calendar year. The fuel
dispensed by the User for the year preceding the Start Date and the
year preceding each and every calendar year thereafter during which
such calculation is made shall be known as the "User's Current Fuel
Dispensed". The User's Current Fuel Share shall be calculated by
dividing the User's Current Fuel Dispensed by the Total Current Fuel
Dispensed preceding the year during which such calculation is made. The
User's Current Fuel Share for calendar year 1998 shall hereinafter be
defined as "the Base Year Fuel Share" and is shown below:
Teterboro Airport User Fuel Share in 1998
- ----------------------------------------------- ------------------
Atlantic Aviation Corporation 17.8%
First Aviation Services, Inc. 16.5%
Jet Aviation of America, Inc. 34.4%
General Aviation Aircraft Services, Inc. (doing 17.0%
business as Million Air-Teterboro
Signature Flight Support-New Jersey, Inc. 14.3
14.2. As of the Start Date and as of January 1 of each succeeding calendar
year, in the event that the User's Current Fuel Share for the
respective preceding calendar year is determined to be at least twelve
and one-half percent (12.5%) less than the User's Base Year Fuel Share,
the Port Authority shall have the right but not the obligation, upon
two (2) month's written notice to the User, to require the User and the
User hereby agrees to make ramp space in Area 3 (hereinafter called
"Accommodation Space") available to other users, sub-users or the Port
Authority in useable increments as directed by the Port Authority in
the manner and amount and to the extent set forth below:
Percentage of the User's
Current Fuel Share Divided by Ramp Space to be Made
User's Base Year Fuel Share Available in Area 3
- ----------------------------------- ---------------------
87.5% (12.5% reduction or greater) Up to 20.0% of Total
75.0% (25% reduction or greater) Up to 50.0% of Total
50.0% (50% reduction or greater) Up to 100.0% of Total
14.3. In the event the User is so notified by the Port Authority it shall
either (a) enter into a sub-use and occupancy agreement with another
user as determined by the Port Authority or (b) enter into a surrender
agreement as directed by the Port Authority. Any such sub-use and
occupancy agreement shall be subject to the prior and continuing
approval of the Port Authority and the execution by and among the User,
the Sub-user, the Airport Operator, and the Port Authority of a Consent
Agreement in form satisfactory to the Port Authority. Moreover, and
9
without limiting the forgoing, the User shall provide any and all
information to the Airport Operator as may be requested by the Airport
Operator from time to time as to all aspects of its accommodation of a
Sub-user hereunder. Nothing contained herein shall in any way affect
the discretion of the Airport Operator or the Port Authority in
granting or withholding its consent to a sub-use and occupancy
agreement.
14.4. The failure of the Port Authority to exercise its right under this
Section during any year in which it may have such a right shall not
affect, waive or limit its rights to exercise such right in any
subsequent year during any period of underutilization. In no event will
the Accommodation Space exceed the percentages set forth above.
14.5. The User shall make such ramp space available during the period set
forth in the aforesaid notice. The Port Authority shall consider a
request by the User to restore the Accommodation Space to the User when
the User's Current Fuel Share shall have returned to within twelve and
one-half percent (12.5%) or less of the User's Base Year Fuel Share,
provided the Accommodation Space is not then covered by a sub-use or
other agreement or at such other time as the Port Authority deems it is
in the best interest of the Airport to restore the Accommodation Space
to the User.
14.6. The User agrees that all handling, sublease, sub-use and occupancy
agreements shall be reasonable and at non-discriminatory rates, fees
and charges and shall be based on the recovery by the User of a pro
rata share of the User's costs of (1) operation and maintenance, (2)
services provided, and (3) the User's fees and investment in the
Accommodation Space.
15.0. Construction Payments -- In the event that the User seeks Port
Authority financing for construction of any of the hangars or other
improvements the following will apply.
15.1. (a) The following terms as used in this Agreement shall have the
respective meanings given below:
(1) "Accrued Amount" shall mean the monthly amount,
calculated on the last day of each calendar month,
equal to the product obtained by multiplying the
daily average of the Construction Payment Amount, as
hereinafter defined, during such month by the decimal
.006875, for each month during the period commencing
on the first Construction Payment Date and ending on
the day preceding the Additional Rental Commencement
Date.
(2) "Construction Commencement Date" shall mean the first
date any contractor of the User enters upon any
portion of the Space to perform any portion of the
Construction Work.
10
(3) "Construction Costs" shall mean the following costs
actually paid by the User to the extent that the
inclusion of the same is permitted by sound
accounting practices consistently applied;
(i) amounts actually paid to independent
contractors for work actually performed and
labor actually furnished and materials
actually delivered in connection with the
performance of the Construction Work; and
(ii) amounts actually paid in connection with the
Construction Work for engineering,
architectural, professional and consulting
services, construction management and
supervision of construction provided,
however, payments under this paragraph (a)
(3) (ii) shall not exceed fifteen percent
(15 %) of the amounts paid under paragraph
(a) (3) (i);
provided and to the extent that such work is
performed by the User in accordance with all the
terms and provisions of (i) this Agreement and (ii)
the final Construction Application(s) (including the
final plans and specifications) as approved by the
Port Authority pursuant to Section 3.3 of the
Agreement. Notwithstanding the foregoing, the
Construction Costs shall not include:
(i) the costs of Construction Work which
although performed pursuant to an approved
plan or specification is not incorporated in
the final plans and specifications as
approved by the Port Authority or the cost
of altering such Construction Work; or
(ii) any amounts paid for or in connection with
any trade fixtures or other personal
property of the User.
(4) "Construction Payment" shall mean each payment made
by the Port Authority to the User for Construction
Costs.
(5) "Construction Payment Amount" shall mean the
aggregate amount of all Construction Payments made by
the Port Authority to the User at any time during the
term of this Agreement pursuant to paragraph (b) of
this Paragraph 15 of Supplement No. 4 to the
Agreement together with the Accrued Amount
accumulated thereon.
(6) "Construction Payment Date" shall mean the date upon
which each Construction Payment is made pursuant to
the Paragraph.
11
(7) "Final Date" shall mean the last day of the twelfth
month following the month in which the certificate of
the User is delivered to the Port Authority pursuant
to Section 3.6.14 of the Agreement.
(b) The Port Authority shall reimburse the User for Construction
Costs, subject to and in accordance with the terms and
provisions hereinafter set forth.
(1) On the twentieth day of the calendar month following
the month in which the Construction Commencement Date
occurs, and on the twentieth day of each calendar
month thereafter up to and including the calendar
month following the Final Date, the User shall
deliver to the Port Authority a certificate which
shall be signed by a responsible fiscal office of the
User, sworn to before a notary public, and shall:
(i) certify the amounts of actual payments made
by the User and the amounts actually due and
payable from the User to its independent
contractors for work actually performed and
labor and materials actually furnished for
the Construction Work;
(ii) certify the amounts of actual payments made
by the User and the amounts due and payable
from the User in connection with the
Construction Work for engineering,
architectural, professional, consulting
services, construction management and
supervision of construction;
(iii) certify all due and payable amounts included
by the User in previous certificates against
which a Construction Payment has been made
by the Port Authority to the User and which
have been paid by the User since the
submission of each such previous
certificate, and shall have attached there
to or included therein such verification as
shall be required by the Port Authority,
that such amounts have been paid;
(iv) certify the total cumulative payments made
by the User from the commencement of the
Construction Work to the date of each
certificate;
(v) contain a representation by the User that
the User will apply the Construction Payment
only against expenses actually incurred as
Construction Costs and for no other purpose
whatsoever;
(vi) certify that the amounts, payments and
expenses therein set forth constitute
Construction Costs;
12
(vii) certify that the work for which payment is
requested has been accomplished, that the
amounts requested have been paid or are due
and payable to the User's contractors, and,
subject to the concurrence of the Port
Authority, that such work is in place and
has a value of not less than the amount
requested to be paid;
(viii) certify that each portion of the
Construction Work covered by such
certificate has been performed in accordance
with the terms of this Agreement;
(ix) have attached thereto reproduction copies or
duplicate originals of the invoices of such
independent contractors and other persons
(whether such invoices are paid or unpaid)
and for such invoices which have been paid,
an acknowledgement by such independent
contractors and other persons of the receipt
by them of such amounts and payments; and
(x) contain such further information and
documentation with respect to the User's
costs as the Port Authority may from time to
time require, which information,
documentation and certification shall be
given on such forms as may be adopted by the
Port Authority.
(2) In addition to the foregoing, the User shall furnish
to the Port Authority information concerning
Construction Costs and timing of the performance of
the Construction Work as may be requested by the Port
Authority from time to time and at any time,
including but not limited to, the following:
(i) The User's original detailed Construction
Costs projections, accompanied by a
certification signed by an independent
engineering consultant or independent
licensed architect, to the effect that the
Construction Costs projections submitted by
the User are accurate, and that the same
represent reasonable prices for the work in
question.
(ii) Reports of the full-time resident engineer
or licensed architect and reports of the
User's chief architect, which reports or log
must contain reports as to activity
conducted in connection with the
Construction Work for each and every day
that such activity occurred from the
commencement of the work to the date of
submission;
13
(iii) A certification signed by the User's
architect or architects certifying the value
of work in place, both on and off the site;
and
(iv) Accurate, readable and complete copies of
all change orders, extra work
authorizations, design change authorizations
and purchase orders in connection with the
Construction Work.
(3) The User shall mark as "final" its final certificate
covering the Construction Work, which certificate,
with respect to amounts withheld by the User which
have been deducted from a Construction Payment and
which have subsequently been paid by the User, shall
have attached thereto or included thereon such
verification as shall be required by the Port
Authority that such withheld and deducted amounts
have been paid by the User and to the extent such
withheld and deducted amounts have been so paid, such
withheld and deducted amounts shall be included in
the amount of the final Construction Payment. After
submitting such final certificate the User shall
submit no further certificate hereunder.
(c) Subject to the provisions of subparagraphs (c) (1) through (c)
(4) hereof, within thirty (30) days after the delivery of duly
submitted certificates by the User satisfying in full the
requirements set forth of this Paragraph, the Port Authority
shall pay to the User the amounts paid by the User as
certified in such certificates, to the extent that such
amounts or any portion thereof have not theretofore been
included in any Construction Payment.
(1) In the event this Agreement is not in full force and
effect, or the User shall be under a notice of
termination of the use of the Space under this
Agreement, or in default under any term or provision
hereof, the Port Authority shall have the right, in
its discretion, to withhold the payment of any
Construction Payment to the User, provided, further,
no payment or withholding of a Construction Payment
shall be or be deemed to be a waiver of any rights of
the Port Authority with respect to the termination of
the use of the Space under this Agreement, or to a
default by the User under any term or provision
therefore, or to the withholding or payment of future
Construction Payments, or with respect to any
determination as to the usability of any item of
work.
(2) It is hereby understood and agreed that nothing in
this Section shall be or be deemed to be for the
benefit of any contractor of the User.
(3) It is further understood that at the election of the
Port Authority no payment will be made if the Port
Authority's inspection or audit
14
does not substantiate the contents of any such
certificate and until such matters have been resolved
to the satisfaction of the Port Authority, but the
Port Authority shall have no obligation to conduct
any such inspection or audit.
(4) No Construction Payment shall be made by the Port
Authority to the User until all due and payable
amounts included on all previously submitted
certificates have been paid by the User and the
payment thereof verified to the satisfaction of the
Port Authority (unless such amounts are being
withheld by the User and the amount so withheld shall
have been deducted from the amount of a Construction
Payment).
(d) If for any reason the construction of the Construction Work or
any portion thereof is not performed in accordance with the
terms and provisions of (i) this Agreement, and (ii) the
Construction Application(s) (including the final plans and
specifications) as finally approved by the Port Authority, it
is understood and agreed that the Port Authority shall not be
obligated to make any Construction Payments nor shall the
Construction Payment Amount include any amount for such work
or any costs in connection with the removal, restoration,
modification, correction or change required to cause such work
to comply with such terms and provisions, and in the event
that the Port Authority shall have made a Construction Payment
for such work, the Port Authority shall have the right to
withhold and credit future Construction Payments against any
such amount or upon demand of the Port Authority, the User
shall pay to the Port Authority the amount of any such
Construction Payment or portion thereof covering such work.
(e) The entire obligation of the Port Authority under this
Agreement for Construction Costs shall be limited in amount to
a total sum of Twelve Million Dollars and No Cents
($12,000,000.00), and limited in time to Construction Costs
adequately documented and covered by certificates of the User
submitted in accordance with subparagraph (b) of this
Paragraph no later than the Final Date.
(f) The User shall promptly submit to the Port Authority further
information, including but not limited to its estimate of the
amounts and times of the various payments it will be making
for Construction Costs as the Port Authority may from time to
time, and at any time, request, and shall be available itself
or cause its architect or engineer to be available for
consultation in connection with payment certificates submitted
pursuant to subparagraph (b) of this Paragraph.
(g) Without limiting any other provision of this Agreement, the
Port Authority shall have the right at any time and from time
to time by its agents, employees and representatives to audit
and inspect during regular business hours the books, records
and other data of the User relating to the cost of
15
the Construction Work, it being understood that the Port
Authority shall not be bound by any prior audit conducted by
it. The User agrees to keep such books, records and other data
within the Port of New York District. The User shall maintain
such books, records and other data for five (5) years after
the User has delivered the certificate marked "final" called
for under subparagraph (b) above.
(h) If the User has included in any portion of the cost of the
Construction work any item as having been incurred, but which
in the opinion of the Port Authority was not so incurred, or
which in the opinion of the Port Authority was not so incurred
is not an item properly chargeable to such element of cost
under sound accounting practice, or does not represent an
appropriate division of the costs of a particular contract
which are required to be designated according to time of
performance or delivery, and the parties have been unable to
resolve their differences within 90 days after the Port
Authority gave its notice objecting to the same, the Port
Authority's decision as to the nature of the items in question
shall be final.
(i) Any payment by the Port Authority which may exceed the
limitation set forth in subparagraph (a) (3) (ii) shall be
promptly refunded to the Port Authority upon demand. Further,
in connection with the limitation set forth in subparagraph
(a) (3) (ii), of this Paragraph, it is agreed that such
limitation shall not be applied for the purpose of calculating
the amount of a Construction Payment until the User has
submitted the final certificate as hereinbefore provided, at
which time such fifteen percent limitation shall be applied).
16. Additional Rental
16.1. These paragraphs related to Additional Rental are only used when the
User accepts Port Authority advances for construction payments.
16.1.1 The following terms as used in this Agreement shall have the
respective meanings given below:
(1) "Monthly Additional Rental Commencement Date" shall
mean the earlier occurring of (i) January 1, 2002 or (ii) the
first day of the month following the month during which the
Completion Date, as defined as the date a certificate of
occupancy has been issued occurs.
(2) "Monthly Additional Rental Factor" shall mean the
factor or factors derived in accordance herewith from time to
time by the application of the following formula:
0.006875
---------------------------
1 = Additional Rental Factor
--------------------
1- (1.006875)degrees
16
Where n (a power) equals the number of calendar months
(expressed in whole numbers) from the Monthly Additional
Rental Commencement Date to the expiration date of the
Agreement.
(3) The term "Accrued Amount" shall mean the monthly
amount, calculated on the last day of each calendar month,
equal to the product obtained by multiplying 0.004375 and the
amount of the Construction Investment Amount (including any
previously calculated Accrued Amount) during said month, for
each month during the period commencing on the first
Construction Advance Date and ending on the day preceding the
Monthly Additional Rental Commencement Date.
(4) The term "the Reimbursement Amount" shall mean the
period commencing on the Monthly Additional Rental
Commencement Date and ending on the expiration date of the
Agreement.
(5) The "Monthly Additional Rental Period" shall mean the
period commencing on the Monthly Additional Rental
Commencement Date and ending on the expiration date of the
Agreement.
16.1.2 The User shall pay to the Port Authority a Monthly Additional
Rental as follows:
(1) Commencing on the Monthly Additional Rental
Commencement Date, the User shall pay to the Port Authority a
Monthly Additional Rental which shall be an amount determined
for and payable on the first day of each and every calendar
month occurring during the Monthly Additional Rental Period
equal to the product obtained by multiplying the Reimbursement
Amount by the Monthly Additional Rental Factor.
(2) (i) In the event the Monthly Additional Rental
Commencement Date shall precede the Final Date and the Port
Authority shall make a Construction Advance or Construction
Advances to the User on or after the Monthly Additional Rental
Commencement Date (each such payment being a part of the
Construction Advance Amount and being herein called a
"Subsequent Construction Advance"), then, with respect to each
such Subsequent Construction Advance, a Monthly Additional
Rental Factor shall be calculated using the formula set forth
in item (2) of subparagraph (a) hereof where n (a power) shall
equal the number of calendar months (expressed in whole
numbers) from the date of each such Subsequent Construction
Advance if such date be the first day of a calendar month, or
if not then the first day of the following calendar month, to
the expiration date of the Agreement.
(ii) As a part of the payment of Monthly
Additional Rental due as provided in this subparagraph (b) and
in addition to the foregoing, the User shall pay to the Port
Authority on the first day of each and every
17
calendar month during the Monthly Additionally Rental Period
subsequent to the payment of each Subsequent Construction
Advance, an amount equal to the product obtained by
multiplying (A) the amount of each Subsequent Construction
Advance and (B) the Monthly Additional Rental Factor
applicable to said Subsequent Construction Advance; such
amount to be payable as a part of the Monthly Additional
Rental payments to be made hereunder and to be deemed a part
thereof for all purposes of the Agreement.
(iii) As a part of the payment of Monthly
Additional Rental due as provided in this subparagraph (b) and
in addition to the foregoing, the User shall pay to the Port
Authority an amount equal to the product obtained by
multiplying (A) the amount of each Subsequent Construction
Advance made on other than the last day of a month, and (B)
the number of days in the period from the date of such
Subsequent Construction Advance is made to and including the
last day of the calendar month in which such Subsequent
Construction Advance is made; and (C) the quotient derived
from dividing 0.006875 by 30; such amount to be payable as
part of the Monthly Additional Rental payment due on the first
day of the month following the month in which such Subsequent
Construction Advance is made.
16.1.3 In the event that a Port Authority audit shall disclose that
the User has expended Construction Costs which total less than
the total of all Construction Advances made to the User
hereunder up to the time of such audit then, upon demand of
the Port Authority, the User shall immediately pay to the Port
Authority an amount equal to the difference between the
amounts expended by the User as disclosed by the Port
Authority audit and the aforesaid amount of the total of all
Construction Advances made to the User and effective from and
after such date of payment the Construction Advance Amount
shall be reduced by the amount of such payment and the Monthly
Additional Rental payable by the User adjusted appropriately
hereunder.
17. The Port Authority may advance funds to the User for the construction
of hangars. If Port Authority funds are provided to the User a security
deposit in the form of any of the following will need to be provided:
Cash, Letter of Credit, Treasury Bonds, Treasury Notes. The bonds can
be issued by any of the following: States of New Jersey or New York or
the Port Authority of New York and New Jersey. Security will be in the
amount of one million dollars ($1,000,000) for each hangar to be
constructed. If two hangars are being constructed simultaneously one
million dollars will need to be provided to the Port Authority for each
hangar for which funding is being provided. If the hangars are being
constructed consecutively (only one is being constructed at a time),
the one million dollar security from the first hangar can be rolled
over to be used for the second. The security is only required during
the construction period until a certificate of occupancy has been
issued.
18
18. Except as herein supplemented, all terms, provisions, covenants and
conditions of the Agreement shall continue in full force and effect.
19. No director, officer, agent, employee, shareholder, principal, parent,
subsidiary or affiliate of any party hereto shall be charged personally
or held contractually liable by or to the other party under any term or
provision of this Supplemental Agreement, or because of its execution
or attempted execution, or because of any breach or attempted or
alleged breach thereof. Notwithstanding the foregoing, the person or
persons executing this Supplemental Agreement on behalf of Johnson
Controls and the User respectively represent that such person is
authorized to execute this Supplemental Agreement.
19
IN WITNESS WHEREOF, the parties hereto have executed these presents as
of the day and year first above written.
ATTEST: JOHNSON CONTROLS WORLD SERVICES
INC.
/s/ Laura Conner By: /s/ C.R. Borders
- -------------------------------- ----------------------------
Title: Illegible Title: Vice President
-------------------------- -------------------------
ATTEST ATLANTIC AVIATION CORPORATION
/s/ Victoria A. Tait By: /s/ R.N. Fitzgerald
- -------------------------------- ----------------------------
Title: Secretary Title: President
-------------------------- -------------------------
20
I, Victoria A. Tait, certify that I am the Secretary of the corporation named in
the attached agreement, that Raymond N. Fitzgerald who signed said authorized
agreement on behalf of the corporation was then the President of said
corporation; that said agreement was duly signed for and in behalf of said
corporation by authority of its governing body, and is within the scope of its
corporate powers.
/s/ Victoria A. Tait
------------------------------------
Victoria A. Tait
(Corporate Seal)
STATE OF DELAWARE
COUNTY OF NEW CASTLE
On this 19th day of May, One Thousand Nine Hundred and Ninety Nine
(1999) before me, Kathleen A. Stansell, a Notary Public in and for the County of
New Castle, State of Delaware, duly commissioned and qualified, personally
appeared Raymond N. Fitzgerald, known to me to be the person described in and
whose name is subscribed to the attached instrument, and acknowledged to me that
he executed the instrument for the purposes and consideration therein stated.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my office seal, at
my office the day and year in this certification first written above.
/s/ Kathleen A. Stansell
----------------------------------------
Kathleen A. Stansell
Notary Public
My Commission Expires: February 13, 2001
THIS AGREEMENT SHALL NOT BE BINDING UPON
JOHNSON CONTROLS UNTIL DULY EXECUTED BY
AN EXECUTIVE OFFICER THEREOF AND DELIVERED
TO THE USER BY AN AUTHORIZED REPRESENTATIVE OF
JOHNSON CONTROLS
Use and Occupancy Agreement No. TA-121
SURRENDER AGREEMENT
THIS SURRENDER AGREEMENT, dated as of August 1, 1999, by and between
JOHNSON CONTROLS WORLD SERVICES INC. (hereinafter called "Johnson Controls") and
ATLANTIC AVIATION CORPORATION (hereinafter called the "User");
WITNESSETH, That:
WHEREAS, The Port Authority of New York and New Jersey (hereinafter
called the "Port Authority") is the owner of Teterboro Airport (hereinafter
called the "Airport") located in the Boroughs of Teterboro, Moonachie and
Hasbrouck Heights and in the Township of Lyndhurst, County of Bergen in the
State of New Jersey; and
WHEREAS, Johnson Controls is the operator of the Airport and has the
right to operate and use the Airport as successor - assignee to an agreement
bearing file No. TA-204 and dated September 19, 1967 between Pan American World
Airways, Inc. ("Pan American") and the Port Authority (hereinafter called the
"Basic Agreement"); and
WHEREAS, a Use and Occupancy Agreement, bearing file No. TA-121 and
dated February 14, 1979 was entered into between Johnson Controls and the User
for the use and occupancy of certain Space at the Airport (which Use and
Occupancy Agreement is hereinafter called "the Agreement"); and
WHEREAS, the User, upon receipt of notice (hereinafter called the
"Notice") from the Port Authority within two (2) years of the date hereof that
the Port Authority or the current operator of the Airport has entered into an
agreement with the then-current user of Hangar No. 1 at the Airport covering,
among other things, the incorporation of the surrendered space, as hereinafter
defined, in the Port Authority's agreement with said user of Hangar No. 1
covering its operations at the Airport, agrees to terminate its occupancy of
certain portions of the Space under the Agreement consisting of a total of
approximately 7,813 square feet of outside ground area designated Area 1A and
Area 3A on the drawing attached hereto, hereby made a part hereof and marked
"Exhibit A-4," said portions being hereinafter collectively called "the
surrendered space," and to surrender the same to Johnson Controls effective as
of 11:59 o'clock P.M. on the date set forth in the Notice, which hour and date
are hereinafter, for purposes of Paragraphs 1 through 4 hereof, collectively
called "the effective date;" and
Page 1
WHEREAS, Johnson Controls is willing to accept such surrender on the
terms and conditions hereinafter set forth; and
WHEREAS, the parties desire to amend the Agreement in certain other
respects as hereinafter set forth;
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements hereinafter set forth, it is hereby agreed by and between Johnson
Controls and the User to amend the Agreement, effective as of August 31, 1999,
as follows:
1. Upon receipt by the User of the Notice from the Port Authority
to surrender the surrendered space, as herein before set forth, the User shall
grant, bargain, sell, surrender and yield up and does by these presents grant,
bargain, sell, surrender and yield up unto Johnson Controls, its successors and
assigns, forever, the surrendered space and the term of years with respect
thereto under the Agreement yet to come and give, grant and surrender and by
these presents does give, grant and surrender to Johnson Controls, its
successors and assigns, all the rights, rights of renewal, licenses, privileges
and options of the User granted by the Agreement with respect to the surrendered
space, all to the intent and purpose that the said term under the Agreement and
the said rights of renewal, license, privileges and options may be wholly
merged, extinguished and determined on the effective date, with the same force
and effect as if the said term were in and by the provisions of the Agreement
originally fixed to expire on the effective date;
TO HAVE AND TO HOLD the same unto Johnson Controls, its successors and
assigns forever.
2. The User hereby covenants on behalf of itself, its successors
and assigns that (a) it has not done or suffered and will not do or suffer
anything whereby the surrendered space, or the User's rights therein, have been
or shall be encumbered as of the effective date in any way whatsoever, (b) the
User is and will remain until the effective date the sole and absolute owner of
the rights, rights of renewal, licenses, privileges and options granted by the
Agreement with respect thereto and that the same are and will remain until the
effective date free and clear of all liens and encumbrances of whatsoever nature
created or suffered by the User; and (c) the User has full right and power to
make this Agreement.
3. All promises, covenants, agreements and obligations of the
User with respect to the surrendered space, under the Agreement or otherwise,
which under the provisions thereof would have matured upon the date originally
fixed in the Agreement for the expiration of the term thereof, or upon the
termination of the Agreement prior to the said date, or within a stated period
after expiration or termination, shall notwithstanding such provisions, mature
upon the effective date and shall survive the execution and delivery of this
Agreement.
4. The User does by these presents release and discharge Johnson
Controls from any and all obligations of every kind, past, present or future on
the part of Johnson Controls to be performed under the Agreement with respect to
the surrendered space. Johnson Controls does by these presents release and
discharge the User from any and all obligations on the part of the User to be
performed under the Agreement with respect to the surrendered space for that
Page 2
portion of the term subsequent to the effective date; it being understood that
nothing herein contained shall release, relieve or discharge the User from any
liability for fees or for other charges that may be due or become due to Johnson
Controls for any period or periods prior to the effective date, or for breach of
any other obligation on the User's part to be performed under the Agreement for
or during such period or periods or maturing pursuant to Paragraph 3 above; it
being further understood that nothing herein contained shall release, relieve or
discharge Johnson Controls from any liability for breach of any obligation on
the part of Johnson Controls to be performed under the Agreement for or during
such period or periods.
5. From and after the effective date, fees for the Space under
the Agreement shall be appropriately abated in accordance with the terms
thereof.
6. Each party represents and warrants to the other that no broker
has been concerned in the negotiation of this Surrender Agreement or the
surrender hereunder and that there is no broker who is or may be entitled to be
paid a commission in connection therewith. Each party shall indemnify and save
harm-less the other of and from any and all claims for commission or brokerage
made by any and all persons, firms or corporations whatsoever as a result of the
indemnifying party's actions for services in connection with the negotiation and
execution of this Surrender Agreement or the surrender hereunder.
7. Neither the directors of Johnson Controls nor any of them, nor
any officer, agent or employee thereof, shall be charged personally by the User
with any liability, or held liable to it under any term or provision of this
Surrender Agreement, or because of its execution or attempted execution or
because of any breach thereof.
8. As hereby amended, all of the terms, covenants, provisions,
conditions and agreements of the Agreement shall be and remain in full force and
effect.
9. This Surrender Agreement and the Agreement which it amends
constitute the entire agreement between Johnson Controls and the User on the
subject matter, and may not be changed, modified, discharged or extended except
by instrument in writing duly executed on behalf of Johnson Controls and the
User. The User agrees that no representations or warranties shall be binding
upon Johnson Controls unless expressed in writing in the Agreement or this
Surrender Agreement.
Page 3
IN WITNESS WHEREOF, Johnson Controls and the User have executed and
sealed these presents as of the date first written above.
ATTEST: JOHNSON CONTROLS WORLD SERVICES
INC.
/s/ Illegible By /s/ C.R. Borders
- -------------------------------- -----------------------------
Vice President (Title) Vice President
(Corporate Seal)
ATTEST: ATLANTIC AVIATION CORPORATION
/s/ Victoria A. Tait By /s/ R.N. Fitzgerald
- -------------------------------- -----------------------------
Secretary (Title) President
(Corporate Seal)
Page 4
STATE OF FLORIDA )
) ss.
COUNTY OF BREVARD )
On this 12th day of October, 1999, before me, the subscriber, a Notary Public,
personally appeared Charles R. Borders, the Vice President of JOHNSON CONTROLS
WORLD SERVICES INC. who I am satisfied is the person who has signed the within
instrument; and I having first made known to him the contents thereof, he did
acknowledge that he signed, sealed with the corporate seal and delivered the
same as such officer aforesaid and that the within instrument is the voluntary
act and deed of such corporation, made by virtue of the authority of its Board
of Directors.
/s/ Denise E. Minacapelli
-------------------------------
(notarial seal and stamp)
STATE OF DELAWARE )
) ss.
COUNTY OF NEW CASTLE )
On this 11th day of October, 1999, before me, the subscriber, a Notary Public,
personally appeared RN Fitzgerald the President of ATLANTIC AVIATION CORPORATION
who I am satisfied is the person who has signed the within instrument; and I
having first made known to him the contents thereof, he did acknowledge that he
signed, sealed with the corporate seal and delivered the same as such officer
aforesaid and that the within instrument is the voluntary act and deed of such
corporation, made by virtue of the authority of its Board of Directors.
/s/ Kathleen A. Stansell
-------------------------------
(notarial seal and stamp)
CONSENT AGREEMENT
THIS AGREEMENT, dated as of October 15, 1999 by and among THE PORT
AUTHORITY OF NEW YORK AND NEW JERSEY (hereinafter called "the Port Authority")
and JOHNSON CONTROLS WORLD SERVICES INC. (hereinafter called the "Airport
Operator") and ATLANTIC AVIATION CORPORATION (hereinafter called "the User"),
WITNESS, THAT:
WHEREAS, the Port Authority and the Airport Operator have heretofore
entered into an agreement dated September 19, 1967 (which agreement, as the same
has been or may hereafter be supplemented and amended, is hereinafter called
"the Main Agreement"), pursuant to which the Airport Operator is operating and
using Teterboro Airport (hereinafter called "the Airport") and;
WHEREAS, pursuant to and in accordance with the terms of the Main
Agreement, the Airport Operator and the User entered into a Use and Occupancy
Agreement dated February 14, 1979 with the consent of the Port Authority (which
consent was set forth in an agreement hereinafter called the "Consent
Agreement") which Use and Occupancy Agreement has been designated TA-121 and
hereinafter called "TA-121"; and
WHEREAS, the Airport Operator and the User desire to execute a
Surrender Agreement which calls for the User, under certain conditions, to
surrender a portion of the Space associated with TA-121. A copy of which
Surrender Agreement is attached hereto, made a part hereof and hereafter called
"the Surrender Agreement", subject to the consent of the Port Authority and the
execution of a Consent Agreement by and among the Airport Operator, the User and
the Port Authority.
NOW, THEREFORE, for and in consideration of the mutual agreements
herein contained, the Port Authority, the Airport Operator and the User hereby
agree effective as of the Effective Date of the Surrender Agreement as follows:
1. On the terms and conditions hereinafter set forth, the Port
Authority consents to the Surrender Agreement.
2. (a) If the Main Agreement shall terminate (whether through the
expiration of its term or by earlier termination as provided
in the Main Agreement) before the expiration date of the two
year period identified in the Surrender Agreement, if the User
is in occupancy of and using the "surrender space" identified
in the Surrender Agreement, the Surrender Agreement will be
terminated. Under these conditions, the User is obligated to
enter into another surrender agreement with the Port Authority
or a successor airport operator selected by the Port Authority
with the same terms and conditions of the Surrender Agreement,
and with such additional terms as may be necessary or
appropriate.
3. Neither this Consent Agreement, nor anything contained herein
nor the consent granted hereunder shall constitute or be
deemed to constitute a
Page 1
consent to nor shall they create an inference or implication
that there has been consent to any enlargement, variation or
change in the rights, powers and privileges granted to the
Airport Operator under the Main Agreement, nor consent to the
granting or conferring of any rights, powers or privileges to
the User as may be provided by TA-121 if not granted to the
Airport Operator under the Main Agreement, nor shall the same
impair or change any of the duties, liabilities and
obligations imposed on the Airport Operator under the Main
Agreement. The Surrender Agreement is an agreement between the
Airport Operator and the User with respect to the various
matters set forth therein. Neither this Consent Agreement nor
anything contained herein nor the consent granted hereunder
shall constitute an agreement between the Port Authority and
the Airport Operator that the provisions of Surrender
Agreement shall apply and pertain as between the Airport
Operator and the Port Authority, it being understood that the
terms, provisions, covenants, conditions and agreements of the
Main Agreement shall, in all respects, be controlling,
effective and determinative. The specific mention of or
reference to the Port Authority in any part of Surrender
Agreement, including, without limitation thereto, any mention
of any consent or approval of the Port Authority now or
hereafter to be obtained, shall not be or be deemed to create
an inference that the Port Authority has granted its consent
or approval thereto under this Consent Agreement or shall
thereafter grant its consent or approval thereto or that the
subject matter as to which the consent or approval applies has
been or shall be approved or consented to in principle or in
fact or that the Port Authority's discretion pursuant to the
Main Agreement as to any such consents or approvals shall in
any way be affected or impaired. The lack of any specific
reference in any provisions of the Surrender Agreement to Port
Authority approval or consent shall not be deemed to imply
that no such approval or consent is required and the Main
Agreement shall, in all respects, be controlling, effective
and determinative.
4. The granting of the consent hereunder by the Port Authority
shall not be or be deemed to operate as a waiver of consent to
any subsequent agreement with respect to the use or occupancy
of space at the Airport (by the Airport Operator or by the
User) or to any assignment of the Main Agreement or TA-121 or
of any rights under either of them, whether in whole or in
part.
5. Reference herein to the User shall mean and include the User,
its officers, agents, employees and also others on the Space
covered by TA-121 or elsewhere on the Airport with the consent
of the User.
6. Neither the Commissioners of the Port Authority nor any of
them, nor any officer, agent or employee thereof shall be held
personally liable to the Airport Operator or to the User under
any term of provision of this Consent Agreement or because of
its execution or because of any breach or alleged breach
hereof.
Page 2
IN WITNESS WHEREOF, the Port Authority, the Airport Operator and the User have
executed these presents.
ATTEST THE PORT AUTHORITY OF NEW YORK AND
NEW JERSEY
/s/ Illegible By: /s/ R. Kelly
- -------------------------------- ---------------------------------
Assistant Secretary Title: Aviation Director
ATTEST JOHNSON CONTROLS WORLD SERVICES INC.
/s/ Illegible By: /s/ C.R. Borders
- -------------------------------- ---------------------------------
Title: Vice President Title: Vice President
ATTEST ATLANTIC AVIATION CORPORATION
/s/ Victoria A. Tait By: /s/ R.N. Fitzgerald
- -------------------------------- ---------------------------------
Title: Secretary Title: President
Page 3
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
On the 15th day of October, in the year 1999, before me, the undersigned, a
Notary Public in and for said state, personally appeared Robert J. Kelly
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual(s) whose name(s) is (are) subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
individual(s), or the person upon behalf of which the individual(s) acted,
executed the instrument.
/s/ Karen E. Eastman
----------------------------------
(notarial seal and stamp)
STATE OF FLORIDA )
) ss.
COUNTY OF BREVARD )
On this 12th day of October, 1999, before me, the subscriber, a Notary Public,
personally appeared Charles R. Borders the Vice President of JOHNSON CONTROLS
WORLD SERVICES INC., who I am satisfied is the person who has signed the within
instrument; and I having first made known to him the contents thereof, he did
acknowledge that he signed, sealed with the corporate seal and delivered the
same as such officer aforesaid and that the within instrument is the voluntary
act and deed of such corporation, made by virtue of the authority of its Board
of Directors.
/s/ Denise E. Minacapelli
----------------------------------
(notarial seal and stamp)
STATE OF DELAWARE )
) ss.
COUNTY OF NEW CASTLE )
On this 11th day of October, 1999, before me, the subscriber, a Notary Public,
personally appeared RN Fitzgerald the President of ATLANTIC AVIATION
CORPORATION, who I am satisfied is the person who has signed the within
instrument; and I having first made known to him the contents thereof he did
acknowledge that he signed, sealed with the corporate seal and delivered the
same as such officer aforesaid and that the within instrument is the voluntary
act and deed of such corporation, made by virtue of the authority of its Board
of Directors.
/s/ Kathleen A. Stansell
----------------------------------
(notarial seal and stamp)
DELEGATION OF AUTHORITY
In accordance with the authority granted by the General Delegation Resolutions
of Johnson Controls World Services Inc. (the "Company"), as modified by the
Resolutions adopted at that certain meeting of the Board of Directors of the
Company held on December 19, 1989, I, Mark C. Filteau, hereby delegate to C.
Robert Borders, Vice President (Acting) the authority to act on my behalf with
respect to matters related to the Airport Management Services Division of the
Company and Teterboro Airport, including the authority to sign the following
documents related thereto:
General correspondence
Payroll Notifications in accordance with Company policy
Contractual Agreements for supplies and services not exceeding
$100,000.
*Teterboro Airport Use and Occupancy Agreement for tenants and
modifications thereto.
*Permits to conduct business at Teterboro Airport and modifications and
amendments thereto.
*Licenses as may be required for activities at Teterboro Airport.
*Consent Agreements.
*FAA Reimbursement Documentation
*Subject to the terms of the Teterboro Operating Agreement executed between Pan
American World Airways, Inc. and the Port of New York Authority dated September
19, 1967, which may require the consent of the Port Authority.
This Delegation of Authority is valid from July 1, 1996 through March 31, 1999,
unless earlier rescinded by the writer.
JOHNSON CONTROLS WORLD SERVICES INC.
BY: /s/ Mark C. Filteau
-------------------------------------------------
Mark C. Filteau, Vice President, Federal Services
DATE: 12-23-98
CERTIFICATION
I, Robert M. Carter, hereby certify that I am the Secretary of Johnson Controls
World Services Inc. (the "Company"); that Mark C. Filteau, who executed the
above Delegation of Authority, is the Vice President of the Company and has been
authorized by the General Delegation Resolutions, as modified by the Resolutions
of the Board of Directors adopted on December 19, 1989, to delegate the
authority to execute in the name of and on behalf of the Company certain
documents further described above; and, that said Resolutions have not been
revoked, canceled, modified or superseded, to date.
BY: /s/ Robert M. Carter
-------------------------------------------------
Robert M. Carter, Secretary
DATE: 12-23-98 SEAL
THIS SUPPLEMENT SHALL NOT BE BINDING UPON
THE PORT AUTHORITY UNTIL DULY EXECUTED BY
AN EXECUTIVE OFFICER THEREOF AND DELIVERED
TO THE USER BY AN AUTHORIZED REPRESENTATIVE
OF THE PORT AUTHORITY
Teterboro Airport
Agreement TA-121
Supplement No. 5
SUPPLEMENTAL AGREEMENT
THIS AGREEMENT, dated this 23rd day of August, 2000 by and between THE
PORT AUTHORITY OF NEW YORK AND NEW JERSEY (hereinafter called the "Port
Authority") and ATLANTIC AVIATION CORPORATION, a corporation organized under the
laws of the State of Delaware (hereinafter called the "User"),
WITNESSETH, THAT:
WHEREAS, The Port Authority of New York and New Jersey (hereinafter
called "the Port Authority") is the owner of Teterboro Airport located in the
Boroughs of Teterboro, Moonachie and Hasbrouck Heights and in the Township of
Lyndhurst, County of Bergen in the State of New Jersey; and
WHEREAS, Johnson Controls World Services Inc. (hereinafter called
"Johnson Controls") is the operator of Teterboro Airport and has the right to
operate and use the Airport as successor - assignee to an agreement between Pan
American World Airways, Inc. (hereinafter called "Pan American") and the Port
Authority dated September 19, 1967 (hereinafter called the "Basic Agreement");
and
WHEREAS, a Use and Occupancy Agreement, bearing file No. TA-121 and
made effective as of February 14, 1979, was entered into between Pan American
and the User for the use and occupancy of certain Space at Teterboro Airport
(which Use and Occupancy Agreement is hereinafter referred to as "the
Agreement"); and
WHEREAS, Johnson Controls and the Port Authority intend to terminate
the Basic Agreement effective as of the Termination Date, as hereinafter
defined; and
WHEREAS, effective from and after the Termination Date the Port
Authority will be the operator of the Airport and now desires, together with the
User, to provide for the continuation of the Agreement and the substitution of
the Port Authority in the place and stead of Johnson Controls as the Airport
Operator under the Agreement;
NOW, THEREFORE, in consideration of the mutual agreements and
respective promises herein contained and made by the parties hereto, the parties
hereby agree, as of the date first set forth above, as follows:
1. The parties hereby agree that if, as and when the Basic
Agreement shall expire or be terminated, the Port Authority shall notify the
User of the effective date thereof, with such date set forth in said notice
being herein referred to as the "Effective Date." From and after the Effective
Date, the term of the Agreement shall continue as provided in the Agreement with
the Port Authority as the Airport Operator thereunder, with the Port Authority
succeeding to all the rights and obligations of Johnson Controls under the
Agreement from and after the Termination Date. The obligations and liabilities
of Johnson Controls to the User arising under the Agreement prior to the
Termination Date shall be and remain the obligations and liabilities of Johnson
Controls and the Port Authority shall have no responsibility therefore.
2. As between the Port Authority and the User, this substitution
of the Port Authority shall not in any way whatsoever affect or impair the
liability of Johnson Controls to the User or to the Port Authority to perform
all the terms, provisions and conditions of the Agreement on the part of Johnson
Controls to be performed, for the period from the effective date of the
Agreement to and including the Termination Date and the obligation to comply
with all requirements of the Port Authority and appropriate federal, state and
local governmental agencies arising from any environmental condition of the
Space.
3. From and after the Termination Date, the Port Authority shall
assume all the rights, obligations and duties of Johnson Controls under the
Agreement as well as the performance of, and does hereby agree to perform, all
the terms, provisions and conditions of the Agreement on the part of the Airport
Operator thereunder to be performed. The execution of this instrument by the
Port Authority does not constitute a representation by it that Johnson Controls
has performed or fulfilled every obligation required by the Agreement; as to
such matters the User agrees to look solely to Johnson Controls.
4. No provision of the Agreement, including but not limited to,
those imposing obligations on the User with respect to laws, rules, regulations,
taxes, assessments and liens, shall be construed as a submission or admission by
the Port Authority that the same could or does lawfully apply to the Port
Authority, nor shall the existence of any provision of the Agreement covering
actions which shall or may be undertaken by the User or the Airport Operator,
including but not limited to, construction on the Space covered by the
Agreement, be deemed to imply or infer that Port Authority consent or approval
thereto has been or shall be given or that Port Authority discretion with
respect thereto will in any way be affected or impaired. References in this
paragraph to specific matters and provisions shall not be construed as
indicating any limitation upon the rights of the Port Authority with respect to
its discretion as to matters and provisions in the Agreement which are not
specifically referred to herein.
5. Except as otherwise provided herein, during the remainder of
the term of the Agreement all the terms, provisions, covenants and conditions of
the Agreement shall be and continue in full force and effect.
6. Neither the Commissioners of the Port Authority nor any of
them, nor any officer, agent or employee thereof, shall be charged personally by
the User with any liability, or held liable to it under any term or provision of
this Supplemental Agreement, or because of its execution or attempted execution
or because of any breach thereof.
-2-
7. This Supplemental Agreement and the Agreement which it amends
constitute the entire agreement between the Port Authority and the User on the
subject matter, and may not be changed, modified, discharged or extended except
by instrument in writing duly executed on behalf of both the Port Authority and
the User.
IN WITNESS WHEREOF, the parties hereto have executed these presents as
of the day and year first above written.
ATTEST THE PORT AUTHORITY OF NEW YORK AND
NEW JERSEY
/s/ Illegible By: /s/ Francis A. Dimola
- -------------------------------- --------------------------------
Secretary Title: Assistant Director
ATTEST ATLANTIC AVIATION CORPORATION
/s/ T.W. Crawley By: /s/ R.N. Fitzgerald
- -------------------------------- --------------------------------
Title: President
(Corporate Seal)
-3-
STATE OF NEW JERSEY )
) ss.
COUNTY OF )
On this 4th day of December, 2000, before me, the subscriber, a notary public of
New York, personally appeared Francis A. Dimola, the Assistant Dir. Aviation
Dept of The Port Authority of New York and New Jersey, who I am satisfied is the
person who has signed the within instrument; and, I having first made known to
him the contents thereof, he did acknowledge that he signed, sealed with the
corporate seal and delivered the same as such officer aforesaid and that the
within instrument is the voluntary act and deed of such corporation made by
virtue of the authority of its Board of Commissioners..
/s/ Mary Ann Grossu
----------------------------------
(notarial seal and stamp)
STATE OF DELAWARE )
) ss.
COUNTY OF NEW CASTLE )
On this 3rd day of November, 2000, before me, the subscriber, a Notary Public,
personally appeared Raymond N. Fitzgerald, the President of Atlantic Aviation
Corporation, who I am satisfied is the person who has signed the within
instrument; and, I having first made known to him the contents thereof, he did
acknowledge that he signed, sealed with the corporate seal and delivered the
same as such officer aforesaid and that the within instrument is the voluntary
act and deed of such corporation, made by virtue of the authority of its Board
of Directors.
/s/ Victoria A. Tait
----------------------------------
(notarial seal and stamp)