LEASE AGREEMENT
BETWEEN
PIEMONTE FOODS, INC.
AND THE
METROPOLITAN NASHVILLE AIRPORT AUTHORITY
CONTENTS
ARTICLE PAGE NO.
I. Definitions.............................. 2
II. Assigned Area............................ 3
III. Term..................................... 3
IV. Rentals, Fees and Charges ............... 3
V. Privileges and Obligations of Lessee .... 6
VI. Improvements by Authority ............... 7
VII. Improvements by Lessee .................. 7
VIII. Operational Standards ................... 11
IX. Maintenance ............................. 11
X. Compliance .............................. 14
XI. Assignment and Subleasing ............... 14
XII. Indemnification ......................... 15
XIII. Insurance and Bonds ..................... 16
XIV. Termination by Lessee ................... 20
XV. Termination by Authority ................ 22
XVI. Condemnation ............................ 28
XVII. Security ................................ 30
XVIII. Holding Over ......................... 31
XIX. Attorney's Fees ......................... 32
XX. Amendment ............................... 32
XXI. Relationship of Parties ................. 32
XXII. Approvals By Authority .................. 33
XXIII. Environmental Protection................. 33
XXIV. Environmental Compliance................. 33
XXV. Taxes ................................... 37
XXVI. General Provisions ...................... 38
XXVII. DOT Title VI Assurances.................. 43
XXVIII. Entire Agreement......................... 46
(i)
LEASE AGREEMENT
THIS LEASE AGREEMENT, effective this 26th day of March, 1996, by and
between the METROPOLITAN NASHVILLE AIRPORT AUTHORITY, a public corporation
existing under the laws of the State of Tennessee, hereinafter referred to as
the "Authority", and PIEMONTE FOODS, INC., hereinafter referred to as "Lessee".
W I T N E S E T H :
WHEREAS, Authority is the owner and operator of the Nashville International
Airport, Nashville, Tennessee, together with certain air navigational
facilities, hereinafter referred to as the "Airport"; and,
WHEREAS, Lessee is a corporation engaged in the operation of a food service
distribution center at the Nashville International Airport; and,
WHEREAS, it is the intent of the Authority to grant, demise and let unto
Lessee, and Lessee intends to lease, accept and rent from Authority, certain
improved real property, at the Nashville International Airport, Nashville,
Tennessee (the "Airport"), as more fully described on Exhibits "A" and "B",
attached hereto and made a part hereof, for use as a food service distribution
center.
NOW, THEREFORE, for and in consideration of the premises, mutual covenants
and agreements and other valuable consideration, Authority hereby grants the
following privileges, facilities, rights, licenses and services in connection
with and on the Airport as follows:
1
ARTICLE I.
DEFINITIONS
1.1 "Agreement" as used herein contemplates and includes the lease of
Authority-owned property (referred to henceforth as Assigned Areas)
and permission for Lessee to use such Authority-owned property for
the operation of a food service distribution center.
1.2 "Airport", "Airport Terminal" and "Terminal" shall mean the Passenger
Terminal Building at Nashville International Airport and the airfield
operating area.
1.3 "Assigned Area" is the area or areas of Airport designated by this
Agreement and Exhibits "A" and "B" attached hereto.
1.4 "Authority" shall mean the Metropolitan Nashville Airport Authority and
shall include such public officials and public bodies as may, by operation
of law, succeed to any or all of the rights, powers or duties which
lawfully reside in the Metropolitan Nashville Airport Authority.
1.5 "President" shall mean the President or Acting President of the
Metropolitan Nashville Airport Authority or that person designated by the
President to act for him with respect to any or all matters pertaining to
this Agreement.
ARTICLE II.
ASSIGNED AREA
2.1 Authority hereby grants, demises and lets unto Lessee, and Lessee accepts
and leases the same from Authority that improved real property described
on Exhibits "A" and "B" attached hereto, subject to all the intents,
terms, and conditions contained herein.
2
ARTICLE III.
TERM
3.1 This Agreement shall become effective upon execution by all parties hereto.
The term of this Agreement shall be for five years, commencing April 1,
1996, with three (3) five-year renewal options, which options shall be
exercised by written notice to Authority's President not less than One
Hundred Eighty (180) days prior to the expiration of the basic term or
renewal option, if any.
ARTICLE IV.
RENTALS, FEES AND CHARGES
4.1 Beginning April 1, 1996, Lessee covenants to pay to Authority,
over and above other additional charges and payments to be made by
Lessee, as hereinafter provided, an annual rental of Sixty-eight Thousand,
Five Hundred Forty and 00/100 Dollars ($68,540.00) payable in equal
monthly installments of Five Thousand, Seven Hundred Eleven and 67/100
($5,711.67),as shown on Exhibit "C" attached hereto and made a part hereof.
4.2 Commencing April 1, 1997 and continuing thereafter on each anniversary date
during the term hereof, and any renewals , the rental shall be adjusted in
accordance with the percentage of increase in the Cost of Living Index, All
Urban Consumers, "All Items", compiled and published by the United States
Department of Labor, Bureau of Labor Statistics, such percentage
being based upon a comparison of the index figure in effect three (3)
months prior to the calendar month in which the term commenced with the
index figure in effect three (3) months prior to the date of each
adjustment period. In no event shall the rental be less than Sixty-Eight
Thousand Five Hundred Forty and 00/100 Dollars ($68,540.00) per annum. It
is understood and agreed that the Cost of Living Index used
3
for the calendar month in which the term commenced is that Index for
January, 1996, which is three (3) months prior to the calendar month in
which the term commenced and is established at 154.4 based upon the
Cost of Living Index of 1982-84=100.
If publication of the Cost of Living Index, All Urban Consumers,
shall be discontinued, or if the manner of calculation of said Index
should become no longer comparable to the manner in which said Index is
calculated as of the date hereof, the parties hereto shall thereafter
accept comparable statistics on such prices for the United States, as they
shall be computed and published by an agent of the United States or by a
responsible financial periodical of recognized authority then to be
selected by the parties hereto, or, if the parties cannot agree upon a
selection, by arbitration. In the event of (l) use of comparable
statistics in place of the Cost of Living Index, All Urban Consumers, as
above mentioned, or (2) publication of the Index figure at other than
monthly intervals, there shall be made in the method of computation herein
provided for such revision as circumstances may require to carry out the
intent of this article, and any dispute between the parties as to the
making of such adjustments shall be determined by arbitration.
4.3 Authority hereby affirms the receipt of prepaid rental in the aggregate
amount of $66,081.94, which shall be credited to Lessee's rental payments
on a monthly basis during the first three (3) contract years of this
Agreement:
Contract Year 1 $22,027.31
Contract Year 2 $22,027.31
Contract Year 3 $22,027.31
4
Pursuant to paragraph 14.6 herein, in the event this Agreement is
terminated for any reason during the first three (3) contract years
hereof, any prepaid rental not yet credited against Lessee's rental
obligations hereunder shall become the property of Authority, free and
clear of any claims by Lessee.
4.4 Lessee further agrees and covenants that, in addition to the rentals and
fees specified in Section 4.3 above, Lessee shall, at its sole cost, risk
and expense, construct or cause to be constructed on the Assigned Area,
permanent capital improvements which are general in nature and not
specifically for the food service business, at a total cost of Ninety-two
Thousand and 00/100 Dollars ($92,000.00). All such improvements
shall be completed according to the requirements set forth in ARTICLE VII.
IMPROVEMENTS BY LESSEE, provided for in this Agreement. Upon the
completion of the permanent capital improvements and Lessee's certification
of the costs thereof as set forth in ARTICLE VII. IMPROVEMENT BY LESSEE,
Lessee shall be granted a monthly rental credit which shall be amortized
over the remaining initial five (5) year term of this Agreement utilizing
straight-line amortization from the date of completion of the permanent
capital improvements. In the event Lessee shall terminate this Agreement
prior to the expiration of the initial five (5) year term, Lessee hereby
agrees to pay to Authority the total amount of this unamortized rental
credit due from the date of termination to March 31, 2001.
4.5 All rental due herein shall be payable to Authority, in advance and
without notice or demand on or before the first day of each month.
If the term of this Agreement commences on a day other than the
first day of a month, then the rental due herein shall be pro-rated
for such partial month.
5
4.6 Lessee shall pay for all utilities consumed within the Assigned Area.
4.7 Without waiving any other right of action available to Authority in
the event of default in payment of any and all fees, charges or taxes
hereunder, in the event that Lessee is delinquent for a period of ten (10)
days or more in paying to Authority any fees payable to Authority pursuant
to this Agreement, Lessee shall pay to Authority interest thereon at the
maximum rate allowable by law per annum from the date such debt was due and
payable until paid. Such interest shall not accrue with respect to
disputed items being contested in good faith by Lessee.
ARTICLE V.
PRIVILEGES AND OBLIGATIONS OF LESSEE
5.1 Lessee shall use the Assigned Area as a food service distribution
center.
5.2 Lessee shall conform with all of Authority's signage standards and shall
not display, install, inscribe, paint or affix any signs, advertisements
or notices upon the Assigned Area without prior written consent of
Authority. Upon termination of this Agreement, Lessee shall remove any and
all signs, advertisements and notices at the request of Authority and shall
restore the Assigned Area to its prior condition.
5.3 Lessee is herein granted the rights of ingress to and egress from the
Assigned Area. Such rights of ingress and egress shall apply to Lessee's
employees, guests, patrons, invitees, suppliers and other authorized
individuals.
6
5.4 Lessee shall not use the Assigned Area for any other purpose without the
prior written approval of Authority's President, or his representative.
ARTICLE VI.
IMPROVEMENTS BY AUTHORITY
6.1 Lessee represents that Lessee has inspected and examined the Assigned
Area and accepts it in its present condition and agrees that Authority,
with the exception of the replacement of the roof, shall not be
required to make any other improvements, repairs or modifications
whatsoever in or upon the Assigned Area hereby leased or any part
thereof.
6.2 All leasehold improvements, as defined by Tennessee law, will be considered
an integral part of the Assigned Area and title to such leasehold
improvements will vest in Authority upon termination or expiration of this
Agreement, free and clear of any liens or encumbrances whatsoever.
ARTICLE VII.
IMPROVEMENTS BY LESSEE
7.1 Lessee shall, without cost to Authority, provide the Assigned Area
with all improvements necessary for its operation.
7.2 All improvements and equipment constructed or installed by Lessee,
its agents, or contractors, including the plans and specifications
shall conform to all applicable statutes, ordinances, building codes,
and rules and regulations.
7
7.3 Two sets of plans and specifications for any improvements to the Assigned
Area shall be submitted to the Executive Vice President for review and
approval. No work or construction shall commence until written approval
from the Executive Vice President is received and the plans are stamped
"Approved".
7.4 The Executive Vice President shall either approve or disapprove the
plans and/or specifications submitted by Lessee. The approval by the
Executive Vice President of any plans and specifications refers only to the
conformity of such plans and specifications for Assigned Area to
existing improvements at Airport and such approval shall not be
unreasonably withheld. Such plans and specifications are not approved for
architectural or engineering design or compliance with applicable laws or
codes and Authority, acting through its Executive Vice President, by
approving such plans and specifications, assumes no liability or
responsibility herefor or for any defect in any structure or improvement
constructed according to such plans and specifications. The Executive
Vice President reserves the right to reject any designs submitted, and
shall state the reasons for such action.
7.5 In the event of rejection by the Executive Vice President, Lessee shall
submit necessary modifications and revisions.
7.6 No changes or alterations shall be made to said plans and specifications
after approval by the Executive Vice President. No structural alterations
or improvements shall be made to or upon Assigned Area without the prior
written approval of the Executive Vice President. One reproducible final
copy of the plans for all improvements or subsequent changes therein or
alterations thereof to Assigned Area shall be signed by Lessee and
submitted to the Executive Vice President within thirty (30) days following
completion of the project.
8
7.7 Lessee covenants and agrees that it shall, at its sole cost and expense,
construct or cause to be constructed on Assigned Area all improvements
required to be used for the purposes specified in Article V hereof,
including all utility services. All improvements made by Lessee to Assigned
Area shall be of high quality. Furthermore, they shall be safe, fire
resistant, attractive in appearance, and shall require written approval of
the Executive Vice President prior to installation. All charges
including installation cost, meter deposits and all service charges for
water, electricity and other utility services to and within Assigned Area
shall be paid by Lessee.
7.8 All improvements made to the Assigned Area and additions and alterations
thereto made by Lessee shall be and remain the property of Lessee until the
expiration of the term of this Agreement, as set forth in Article III, or
upon termination of this Agreement (whether by expiration of the
term, termination, forfeiture, or otherwise), whichever first occurs;
at which time the said improvements shall become the property of Authority,
provided, however, that any trade fixtures, signs and other personal
property of Lessee not permanently affixed to Assigned Area shall remain
the property of Lessee and shall so remain unless Lessee shall fail within
ten (10) days following the termination of this Agreement to remove its
trade fixtures, signs and other personal property of Lessee not permanently
affixed to Assigned Area in which event, at the option of Authority, title
to same shall vest in Authority, at no cost to Authority, or Authority may
elect to exercise its rights set forth in Paragraph 15.6 of this Agreement.
Upon expiration, or earlier termination, of this
9
Agreement, Authority reserves the right, at its sole discretion, to
require that Lessee remove, at its sole cost and expense, any and all
improvements Lessee has made to Assigned Area.
7.9 Upon completion of improvements to the Assigned Area outlined
hereinabove, Lessee shall have the right to install or erect
additional improvements in the Assigned Area provided,
however, that all such alterations be commenced only after
plans and specifications thereof have been submitted to and
approved in writing by the Executive Vice President. Any such
alterations and/or repairs shall be without cost to Authority
within the time specified in the written approval and with the
least disturbance possible to Lessee's operation and to the
public.
7.10 The ultimate control over the quality and acceptability of the
improvements in the Assigned Area will be retained by
Authority, and all improvements and finishes shall require the
written approval of the Executive Vice President prior to
installation.
7.11 Upon completion of any improvements, a duly authorized officer of Lessee
must prove to the satisfaction of Authority by certified written statement,
and any other means or devices deemed necessary by Authority: (l) the
amount of total construction costs; (2) that the improvements have
been constructed in accordance with plans and specifications previously
approved by Authority and in strict compliance with all applicable building
codes, laws, rules, ordinances and regulations; and (3) that no liens exist
on any or all of the construction and that all contractors and
subcontractors have been paid all amounts due and owing to them.
10
7.12 Lessee shall not remove or demolish, in whole or in part, any improvements
upon the Assigned Area without the prior written consent of the Executive
Vice President, which may be conditioned upon the obligation of Lessee to
replace the same by an improvement specified in such consent.
7.13 Lessee shall be responsible for making repairs at its sole expense for any
damage resulting from the removal by Lessee of its furniture, trade
fixtures, etc.
ARTICLE VIII.
OPERATIONAL STANDARDS
8.1 Lessee agrees to operate and maintain the Assigned Area in a
safe, clear, orderly and inviting condition.
8.2 The management, maintenance and operation of the Assigned Area shall at all
times be under the supervision and direction of an active, clarified,
competent manager who shall at all times be subject to the direction and
control of Lessee.
8.3 The operations of Lessee, its employees, invitees, suppliers, and
contractors shall be conducted in an orderly and proper manner so as not to
annoy, disturb or be offensive to others. All employees of Lessee must
conduct themselves at all times in a courteous manner toward the public and
in accordance with the rules, regulations and policies developed by Lessee.
ARTICLE IX.
MAINTENANCE
9.1 Lessee shall keep the Assigned Area at all times in good and substantial
repair, and will be responsible for keeping the Assigned Area in a good,
clean, sightly and healthy condition
11
commensurate with housekeeping standards of other tenants at the Airport.
9.2 If Lessee shall at any time fail to keep the Assigned Area in good and
substantial repair as aforesaid, or in a clean and healthy condition, then
Authority, after giving Lessee ten (10) days written notice of such failure
to comply, may do all things necessary to effect compliance with this
Article, and all monies expended by it for that purpose shall be repayable
by Lessee as additional rental in the month or months said work is
performed. Authority's determination shall be final and conclusive.
9.3 Lessee shall maintain and make necessary repairs, structural and otherwise,
to the Assigned Area and the fixtures and equipment therein and
appurtenances thereto. Lessee shall keep and maintain in good
condition the electrical, mechanical, HVAC, and other systems located on
the Assigned Area.
9.4 Prior to making any structural repairs, Lessee shall submit plans to and
obtain the written approval of Authority's Executive Vice President. All
such work performed by Lessee must be inspected and approved by Authority's
Executive Vice President or his representative.
9.5 All repairs done by Lessee or on its behalf shall be of first class quality
in both materials and workmanship. All repairs shall be made in conformity
with the rules and regulations prescribed from time to time by federal,
state or local authority having jurisdiction over the work in Lessee's
Assigned Area.
9.6 The President or his duly appointed representatives shall have the right
to enter Lessee's Assigned Area to:
12
a. Inspect the Assigned Area at reasonable intervals during Lessee's
regular business hours, or at any time in case of emergency, to
determine whether Lessee has complied with and is complying with the
terms and conditions of this Agreement. The President may, at his
discretion, require the Lessee to effect repairs required of
Lessee at Lessee's own cost.
b. Perform any and all things which Lessee is obligated to do, but has
failed to do after reasonable notice, including but not limited
to: maintenance, repairs and replacements to Lessee's Assigned Area.
The cost of all labor and materials required to complete the work will
be paid by Lessee to Authority within ten (10) days following
demand by the President for said payment. Authority's receipts and
invoices shall be conclusive and binding on Lessee as to the cost of
performance of such obligations by Authority.
9.7 Lessee shall, in a timely manner, provide for the adequate sanitary
handling and removal of all trash, garbage and other refuse caused as a
result of Lessee's operations. Lessee agrees to provide and use
suitable covered or sealed receptacles for all garbage, trash and other
refuse in the Assigned Area. Piling of boxes, cartons, barrels or similar
items shall not be permitted.
9.8 Lessee shall have the right, but shall not be obligated, to provide
security protection as it may desire at its own cost. Such right, whether
or not exercised by Lessee, shall not in any way be construed to limit or
reduce the obligations of Lessee hereunder. Any extra security protection
shall be subject to the authority granted to Airport's police force and
shall in no way hinder or interfere with their duties.
13
ARTICLE X.
COMPLIANCE
10.1 Lessee, its officers, agents, servants, employees, contractor, licensees
and any other person whom Lessee controls or has the right to control shall
comply with all present and future laws, ordinances, orders, directives,
rules, and regulations of the United States of America, the State of
Tennessee, the Metropolitan Government of Nashville and Davidson County and
their respective agencies, departments, authorities or commissions
which may either directly or indirectly affect Lessee or its operations on
or in connection with the Assigned Area or Airport. If the Authority
incurs any fines or penalties due to Lessee's violation of any such present
or future laws, ordinances, orders, directives, rules and
regulations, it is mutually agreed by both parties that any such fine or
penalty shall be directly passed on to Lessee by Authority and same shall
become the sole responsibility of Lessee.
10.2 Lessee shall pay wages that are not less than the minimum wages required by
federal and state statutes ordinances to persons employed in its operations
hereunder.
10.3 This Agreement is governed by the laws of Tennessee. Any disputes
relating to this Agreement must be resolved in accordance with the laws of
Tennessee.
ARTICLE XI.
ASSIGNMENT AND SUBLEASING
11.1 Lessee shall not assign this Agreement or allow the same to be assigned by
operation of law or otherwise, or sublet the Assigned Area or any part
thereof without the prior written consent of Authority. Authority reserves
the right to deny
14
any assignment or subletting by Lessee for any reason it deems in the best
interest of Authority. Any purported assignment or sublease in violation
hereof shall be void.
11.2 In no case may the activities, uses, privileges and obligations
authorized herein on the Assigned Area or any portion thereof be assigned,
for any period or periods after a default of any of the terms, covenants,
and conditions herein contained to be performed, kept and observed by
Lessee.
11.3 In the event Authority consents to any assignment or subletting on
the part of Lessee for any rights or privileges granted in this
Agreement, Lessee shall be and remain responsible for any and all
payments due Authority as a result of operations from the assignment or
subletting and for the performance of any and all of Lessee's obligations
hereunder.
ARTICLE XII.
INDEMNIFICATION
12.1 Lessee shall protect, defend, indemnify and hold Authority and its Board of
Commissioners, officers, and employees harmless from and against any and
all liabilities, demands, suits, claims, losses, fines, or judgments
arising by reason of the injury or death of any person or damage to any
property, including all reasonable costs for investigation and defense
thereof (including but not limited to attorney fees, court costs and
expert fees), of any nature whatsoever arising from or incident to Lessee's
performance of this Agreement, its operations on the Assigned Area or the
acts or omissions of Lessee's officers, employees, agents, contractors,
subcontractors, licensees or invitees regardless of where the injury, death
or damage may occur; unless such injury, death or damage is caused by the
sole negligence of Authority.
15
Authority shall give Lessee reasonable notice of any such claims or
actions. Lessee, in carrying out its obligations herein shall use counsel
reasonably acceptable to Authority. The provisions of this section shall
survive the expiration or earlier termination of this Agreement.
ARTICLE XIII.
INSURANCE AND BONDS
13.1 Lessee agrees to maintain, relative to the Assigned Area, comprehensive
public liability and property damage insurance in the amounts of:
A. Personal Injury - Two Million Dollars ($2,000,000) per accident; Five
Hundred Thousand Dollars ($500,000) per person.
B. Property Damage - One Million Dollars ($1,000,000) per accident.
C. Products Liability included as part of Personal Injury and Property
Damage.
D. Comprehensive Automobile Liability - One Million Dollars ($1,000,000)
combined single limit.
Such insurance policies shall name the Authority, its Board of
Commissioners, its officers, and its employees as additional insured and
joint payee to the full extent of Lessee's insurance coverage but in
no event less than the required minimum coverage limit. Such insurance
shall include contractual liability insurance to insure Lessee's
obligation to indemnify and hold Authority, its Board of Commissioners,
its officers and its employees harmless in accordance with the
indemnification provisions of this Agreement.
16
13.2 All insurance policies shall contain a severability of interest or
cross-liability provision endorsement which shall read generally as
follows:
"In the event of one of the assureds incurring liability to any other of
the assureds, this policy shall cover the assured against whom claim is
or may be made in the same manner as if separate policies had been
issued to each assured. Nothing contained herein shall operate to
increase the limits of liability."
13.3 All insurance policies shall provide that they will not be altered or
cancelled without thirty (30) days advance written notice to Authority.
Such insurance shall provide that it will be considered primary insurance
with respect to any other valid and collectible insurance, or self-insured
retention, or deductible Authority may possess. Any other insurance or
self insured retention of Authority shall be considered excess insurance
only.
13.4 Authority shall have the right to change the insurance coverages
and the insurance limits required of Lessee, without any adjustment of the
rental fees paid by Lessee or any cost to Authority, if such changes are
recommended or imposed by Authority's insurers.
13.5 All insurance required under this Agreement shall be obtained from an
insurance company or companies authorized to do business in the State of
Tennessee. The insurance company must be acceptable to Authority;
approval may be denied a company based on its Best rating or other
indication of financial inadequacy.
17
13.6 Lessee shall provide to Authority such evidence of compliance with
Authority's insurance requirements as Authority may from time to request.
At a minimum Lessee shall provide, at the commencement of this Agreement, a
certificate of insurance, and copies of all policies and endorsements.
All such certificates shall be completed to show compliance with Lessee's
obligations hereunder, specifically as to the indemnification and
notice provisions.
13.7 If Lessee or its insurance company fails to promptly respond to Authority's
request for adequate evidence of compliance with the insurance provisions
Authority may, in addition to all its other remedies, charge Lessee an
additional rental in an amount equal to ten percent (10%) of the rental
required hereunder until such evidence is provided.
13.8 If Lessee shall at any time fail to insure or keep insured as aforesaid,
Authority may do all things necessary to effect or maintain such insurance
and all monies expended by it for that purpose shall be repayable by Lessee
as additional rental in the month or months the premium or premiums are
paid by Authority. If any insurance policies required hereunder can not be
obtained for any reason Authority may require Lessee to cease any and all
operations until coverage is obtained. If such insurance coverage is not
obtained within a reasonable period of time, to be determined solely
by Authority, Authority may terminate this Agreement.
13.9 Lessee agrees to maintain Fire and extended insurance coverage on all
buildings and permanent improvements existing or to be constructed on the
Assigned Area in an amount not less than ninety percent (90%) of the full
insurable value thereof. If any building or improvements located on the
Assigned Area shall be damaged by fire, casualty or any other causes,
Lessee shall, within ninety (90) days after such damage, commence
18
restoration or reconstruction of the Assigned Area to a condition
generally equivalent to that preceding the damage or destruction. During
the period of such reconstruction, the rental provided for herein shall be
reduced in proportion to the area of the Assigned Area which have been
rendered unusable. Lessee may elect, during such ninety (90) day
period, not to reconstruct or rebuild the damaged or destroyed building or
buildings erected on the land, in which event the insurance proceeds shall
become the property of Authority. In any event, Lessee's repair or
reconstruction to the Assigned Area, or payment of the insurance proceeds
to Authority if the Assigned Area is not restored, must be commenced in the
case of repair or in the case of payment of proceeds made within ninety
(90) days after such damage. As to permanent improvements
constructed on the Assigned Area by Lessee, the formula for determining
division of insurance proceeds when the permanent improvements are not
reconstructed shall be based upon the unamortized cost to be determined by
amortizing the cost of the permanent improvements on a straight-line basis
over the portion of the term of the lease remaining from the time of
completion of the improvements. Should Lessee later elect to rebuild or
reconstruct, then Authority will pay over to Lessee upon receipt of
itemized bills of cost as expended, that portion of the insurance proceeds
necessary to complete said rebuilding or reconstruction, but in no event an
amount greater than the insurance proceeds.
13.10 Lessee shall for insurance purposes appraise the property and improvements
at the inception of the Agreement by an appraiser to be approved in
advance by Authority. The ninety percent (90%) full insurable value
provided for above shall be based upon said appraisal. Thereafter,
the full insurable value of the Assigned Area shall be adjusted every
five (5) years by the same percentage by which the rental is adjusted,
as set forth in Article IV.
19
13.11 If Lessee makes or causes to be made additional improvements to the
Assigned Area, the agreed upon insurance limits of the Assigned Area shall
be ninety percent (90%) of the full insurable value of those
improvements.
13.12 Prior to commencing any work or construction on the Assigned Area, Lessee
agrees to provide Authority with a Construction Bond and Labor and
Materials Bonds, for any construction or capital improvements undertaken
by Lessee during the term of this Agreement in a sum equal to the full
amount of the construction contract award.
ARTICLE XIV.
TERMINATION BY LESSEE
14.1 In addition to all other remedies available to Lessee, this
Agreement shall be subject to termination by Lessee should
Authority breach any of the material terms, covenants, or
conditions of this Agreement to be kept, performed, and
observed by Authority, and the failure of Authority to remedy
such breach, subject to Authority's right to litigate the
issue, which litigation shall stay this time period, for a
period of sixty (60) days after written notice from Lessee of
the existence of such breach or if more than sixty (60) days
shall be required because of the nature of such breach, if
Authority shall fail within said sixty (60) day period to
commence and thereafter diligently proceed to cure such
default.
14.2 In the event of any occurrence or condition of default by default
by Authority, Lessee shall be eligible for an abatement in its
rental, fees and charges as identified in Article IV from the time
of default until the cessation of such condition of default, or the
termination of this Agreement by Lessee. In the event of any litigation
to determine if a condition of
20
default has occurred, Lessee may elect to pay its rentals, fees and
charges into the court having jurisdiction over such litigation, or to
Authority, but shall not be relieved from such obligation unless and until
a final determination on such litigation is made in Lessee's favor.
14.3 In the event any condition of default shall occur (notwithstanding
any waiver, license or indulgence granted to Authority with respect
to any condition of default in any form or instance), while such
condition of default is continuing, Lessee shall have the right, at its
election, to terminate this Agreement by giving at least ten (10) days
written notice to Authority at which time Lessee will then quit and
surrender the Assigned Area to Authority, and this Agreement will cease
and terminate, but Lessee shall remain liable for rents and obligations
incurred prior to termination as herein provided.
14.4 This Agreement shall be subject to suspension by Lessee in the event any
one or more of the following occur:
a. The issuance by any court of competent jurisdiction of any injunction
preventing or restraining the use of Airport in such a manner as to
substantially restrict Lessee's use of the Assigned Area, not caused
by any act or omission of Lessee, and the remaining in force of such
injunction for at least sixty (60) days; or
b. The assumption by the United States Government, or any authorized
agency thereof, of the operation, control or use of Airport and its
facilities in such a manner as to substantially restrict Lessee's use
of the Assigned Area if such restriction be continued for a period of
three (3) months or more.
21
14.5 In the event of any occurrence provided for in Section 14.4, this
Agreement may be suspended by Lessee, until any such occurrence is totally
rectified, and Lessee shall be released from its obligation to pay the
rental, fees and charges as identified in Article IV, until the cessation
of said suspension, at which time this Agreement will resume and continue
under the existing terms and conditions.
14.6 Lessee may terminate this Agreement during the initial five (5) year term,
at any time for any reason, with ninety (90) days advance written notice
to Authority.
ARTICLE XV.
TERMINATION BY AUTHORITY
15.1 This Agreement shall be subject to termination by Authority should any one
or more of the following conditions occur:
a. If Lessee shall neglect or fail to perform or observe any of the
terms, provisions, conditions or covenants herein contained and on
Lessee's part to be performed and observed and if such neglect or
failure should continue for a period of thirty (30) days after receipt
by Lessee of written notice of such neglect or failure (except for the
failure or neglect to pay any installment of monthly rental or
additional rental wherein such neglect or failure must be cured within
ten (10) days after receipt by Lessee of written notice of such
neglect or failure) or, if more than thirty (30) days shall be
required because of the nature of the default, if Lessee shall fail
within said thirty (30) day period to commence and therafter
diligently proceed to cure such default; or
b. If the estate hereby created shall be taken by execution or by other
process of law; or
22
c. The taking by a court of jurisdiction of Lessee and its assets
pursuant to proceedings under the provisions of any federal or state
reorganization code or act, insofar as the following enumerated
remedies for default are provided for or permitted in such code or
act; or
d. If any court shall enter a final order with respect to Lessee,
providing for modification or alteration of the rights of creditors;
or
e. If Lessee shall fail to abide by all applicable laws, ordinances,
rules and regulations of the United States, State of Tennessee, the
Metropolitan Government of Nashville and Davidson County; or
f. If Lessee shall fail to take possession of the Assigned Area; or
g. If Lessee shall abandon all or any part of the Assigned Area or shall
discontinue the conduct of its operations in all or any part of the
Assigned Area for a period in excess of forty-eight (48) hours; or
h. If Lessee shall commit any act of default under the terms or
conditions of any other agreement between the parties hereto, with
such default remaining uncured and resulting in the termination of
the applicable Agreement.
i. Authority hereby gives Lessee notice that during the term of this
Agreement, it may become necessary for Authority to terminate some
part or all of this Agreement for Airport modification and/or
expansion in order to adequately provide airport facilities and air
service. Authority shall have the right to terminate this Agreement at
any time in the event the Board of
23
Commissioners of Authority shall determine, by resolution adopted in
an open meeting at which Lessee shall be afforded an opportunity to be
heard, that the Assigned Area, or portion thereof, are necessary for
Airport modification or expansion. Authority shall give Lessee six
(6) months notice to vacate the Assigned Area in the event of such
termination, and thereafter Lessee shall have no liability for the
payment of rent for the remainder of the term of this Agreement
nor shall Lessee have any claim for actual or future losses against
Authority because of such termination. Lessee shall yield up the
Assigned Area and any improvements constructed thereon at the
expiration of said six (6) months notice. If, in the sole opinion of
Lessee, any portion of the Assigned Area not terminated by Authority
as described above, is no longer useful to Lessee for the purposes
described in this Agreement, Lessee shall have the right to terminate
this Agreement. A resolution duly enacted by the Board of
Commissioners of Authority shall be conclusive evidence that said
property or properties are needed for airport modification or
expansion.
15.2 In the event any condition of default shall occur (notwithstanding
any waiver, license, or indulgence granted by Authority with respect to
any condition of default in any form or instance), while such breach is
continuing, Authority shall have the right, at its election, either to
terminate this Agreement by giving at least ten (10) days written notice
to Lessee at which time Lessee will then quit and surrender the Assigned
Area to Authority, but Lessee shall remain liable as hereinafter provided,
or, to enter upon and take possession of the Assigned Area (or any part
thereof in the name of the whole), without demand or notice, and repossess
the same as of the Authority's former estate, expelling Lessee and those
claiming under Lessee, forcibly,
24
if necessary, without prejudice to any remedy for arrears of rent or
preceding breach of covenant and without any liability to Lessee or those
claiming under Lessee for such repossession.
15.3 Authority's repossession of the Assigned Area shall not be construed as an
election to terminate this Agreement nor shall it cause a forfeiture of
rents or other charges remaining to be paid during the balance of the
term hereof, unless a written notice of such intention is given to Lessee,
or unless such termination is decreed by a court of competent
jurisdiction. Notwithstanding any reletting without termination by
Authority because of any default by Lessee, Authority may at anytime after
such reletting elect to terminate this Agreement for any such default.
15.4 Upon repossession, Authority shall in good faith attempt to relet the
Assigned Area or any part thereof for such period or periods (which may
extend beyond the term of this Agreement) at such rent or rents and
upon such other terms and conditions as Authority may, in good faith,
deem advisable. Authority shall in no event be liable and Lessee's
liability shall not be affected or diminished in any way whatsoever for
failure to relet the Assigned Area, or in the event same are relet, for
failure to collect any rental or other sums due under such reletting.
15.5 In the event that Authority shall elect to relet, then rentals received
by Authority from such reletting shall be applied: first, to the payment
of any indebtedness other than rent due hereunder from Lessee to
Authority; second, to the payment of any cost of such reletting; and the
residue, if any, shall be held by Authority and applied in payment of
future rent as the same may become due and payable hereunder.
25
Should that portion of such rentals received from such reletting during
any month, which is applied to the payment of rent hereunder, be less than
the rent payable during that month by Lessee hereunder, then Lessee
shall pay such deficiency to Authority. Such deficiency shall be
calculated and paid monthly. Lessee shall also pay to Authority, as soon
as ascertained, any costs and expenses incurred by Authority in such
reletting not covered by the rentals received from such reletting of the
Assigned Area.
15.6 If Authority shall terminate this Agreement or take possession of
the Assigned Area by reason of a condition of default, Lessee, and those
holding under Lessee, shall forthwith remove their personal property
from the Assigned Area. If Lessee or any such claimant shall fail to
effect such removal forthwith, Authority may, at its option,
exercise the right set forth in paragraph 15.1 herein or may without
liability to Lessee or those claiming under Lessee remove such goods and
effects and may store the same for the account of Lessee or of the owner
thereof at any place selected by Authority, or, at Authority's election,
and upon given fifteen (15) days written notice to Lessee of date, time
and location of sale, Authority may sell the same at public auction or
private sale on such terms and conditions as to price, payment and
otherwise as Authority may in good faith deem advisable. If, in
Authority's judgment, the cost of removing and storing or the cost of
removing and selling any such goods and effects exceeds the value thereof
or the probable sale price thereof, as the case may be, Authority shall
have the right to dispose of such goods in any manner Authority may deem
advisable.
15.7 Lessee shall be responsible for all costs of removal, storage and sale,
and Authority shall have the right to reimburse itself from the proceeds
of any sale for all such costs paid
26
or incurred by Authority. If any surplus sale proceeds shall remain after
such reimbursement Authority may deduct from such surplus any other sum
due to Authority hereunder and the residue, if any, shall be held by
Authority and applied in payment of future rent as the same may become due
and payable hereunder.
15.8 If Authority shall enter into and repossess the Assigned Area for reason
of default by Lessee in the performance of any of the terms, covenants or
conditions herein contained, Lessee hereby covenants and agrees that
Lessee will not claim the right to redeem or reenter the Assigned Area to
restore its operations hereunder. Lessee further waives the right to
such redemption and re-entrance under any present or future law, and for
any party claiming through or under Lessee, expressly waives its right, if
any, to make payment of any sum or sums of rent, or otherwise, of which
Lessee shall have made default under any of the covenants of this
Agreement and to claim any subrogation of the rights of Lessee under these
presents, or any of the covenants thereof, by reason of such payment.
15.9 All rights and remedies of Authority herein created or otherwise
existing at law are cumulative, and the exercise of one or more rights
or remedies shall not be taken to exclude or waive the right to the
exercise of any other. All such rights and remedies may be exercised
and enforced concurrently and whenever and as often as deemed advisable.
15.10 If proceedings shall at any time be commenced for recovery of possession
as aforesaid and compromise or settlement shall be effected either before
or after judgment whereby Lessee shall be permitted to retain possession
of the Assigned Area, then such proceeding shall not constitute a
27
waiver of any condition or agreement contained herein or of any subsequent
breach thereof.
15.11 Any amount paid or expense or liability incurred by Authority for
the account of Lessee may be deemed to be additional rental and the
same may, at the option of Authority, be added to any rent then due or
there after falling due hereunder.
15.12 Lessee hereby expressly waives any and all rights of redemption
granted by or under any present or future laws in the event of Lessee
being evicted or dispossessed for any cause, or in the event of Authority
obtaining possession of the Assigned Area by reason of the violation by
Lessee of any of the covenants and conditions of this Agreement or
otherwise. The rights given to Authority herein are in addition to any
rights that may be given to Authority by any statute or otherwise.
15.13 Lessee agrees that title to all permanent improvements constructed on
the Assigned Area by Lessee shall vest in Authority, free and clear,
without further process of law, upon expiration or termination of this
Agreement.
15.14 Lessee agrees to keep all insurance policies in effect through surrender
of the Assigned Area.
ARTICLE XVI.
CONDEMNATION
16.1 In the event of a total taking due to sale under or because of the right
of eminent domain, or condemnation, of all the Assigned Area during the
term of this Lease, this Lease shall terminate as of the date of such
taking, or sale, and all of Lessee's rights and interests in said Assigned
Area,
28
and any and all rights or interests in this Lease, shall cease to exist
hereunder. Lessee shall be entitled to recover from the condemning
authority only that portion of the condemnation award or settlement
allocated to the remaining unamortized cost of the permanent
improvements constructed by Lessee on the Assigned Area, if any,
determined by amortizing the cost of the permanent improvements on
a straight line basis over the portion of the initial term of the Lease
remaining from the time of completion of the permanent improvements.
Lessee shall retain its rights to compensation for moving and relocation
expenses in accordance with applicable federal or state regulations.
Authority shall be entitled to the remaining portion of the award or
settlement allocated to the buildings and permanent improvements
constructed by Lessee and all of the award allocated to the land and
permanent improvements constructed by Authority. In no event will
Lessee's right to compensation exceed that portion of the condemnation
award or settlement properly allocated to the condemned permanent
improvements constructed by Lessee as unamortized above, along with
moving and relocation expenses.
16.2 In the event of a taking or sale, under or due to the right of eminent
domain or by condemnation, of any part of the unimproved or improved
portions of the Assigned Area during the term of this Lease, which by
agreement of Authority and Lessee renders the Assigned Area useless, or
materially affects the purposes for which this Lease has been executed,
Authority or Lessee may elect to terminate this Lease; provided, that if
Lessee elects to terminate, all of its rights and interest in the Assigned
Area shall terminate as of the date of taking; however, Lessee shall be
entitled to receive that portion of the condemnation award or settlement
allocated to the unamortized cost of the permanent
29
improvements constructed by Lessee on the Assigned Area, if any, determined
by amortizing the cost of the permanent improvements on a straight line
basis over the portion of the initial term of the Lease remaining from the
time of completion of the permanent improvements. Lessee shall retain its
right to compensation for moving and relocation expenses, as provided
hereinabove. Authority shall be entitled to the remaining portion of the
award or settlement allocated to buildings and permanent
improvements constructed by Lessee and all of the award allocated to the
land and permanent improvements constructed by Authority. In no event
shall Lessee's right to compensation exceed that portion of the
condemnation award or settlement properly allocated to the condemned
permanent improvements constructed by Lessee as unamortized above. Should
the parties not be able to agree whether the portion of the Assigned Area
taken are rendered useless, they shall select an arbitrator from a list
of all A.A.A. certified arbitrators in Davidson County, Tennessee, with
the costs to be shared equally by the parties. If Lessee elects to remain
in possession, the rental provided for herein shall be reduced in
proportion to the areas of the Assigned Area so taken or rendered unusable.
ARTICLE XVII.
SECURITY
17.1 Lessee agrees to observe all security requirements of Federal
Aviation Regulations Part 107, and the Airport Security Program, and as
they may be amended hereafter, applicable parts of which will be furnished
to Lessee, as approved by the Federal Aviation Administration, and to take
such steps as may be necessary or directed by Authority to insure that
sublessees, employees, invitees, and guests observe these requirements.
30
17.2 If Authority incurs any fines and/or penalties imposed by the Federal
Aviation Administration or any expense in enforcing the regulations
of Federal Aviation Regulations Part 107 and/or the Airport Security
Program, as a result of the acts or omissions of Lessee, Lessee agrees
to pay and/or reimburse all such costs and expense. Lessee further
agrees to rectify any security deficiency as may be determined as
such by Authority or the Federal Aviation Administration. Authority
reserves the right to take whatever action necessary to rectify any
security deficiency as may be determined as such by Authority or the
Federal Aviation Administration. Authority reserves the right to take
whatever action necessary to rectify any security deficiency, in the
event Lessee fails to remedy the security deficiency.
ARTICLE XVIII.
HOLDING OVER
18.1 Any holding over by Lessee after the expiration or termination of
this Agreement, without the written consent of Authority, except for the
period provided for herein for removal of property, shall not be deemed
to operate as an extension or renewal of this Agreement, but shall only
create a tenancy from month to month which may be terminated by Authority
at any time. In the event of such holding over, Authority shall be
entitled to collect from Lessee, as liquidated damages for such holding
over, double the amount of the monthly rental in effect immediately prior
to the commencement of such holding over.
31
ARTICLE XIX.
ATTORNEY'S FEES
19.1 In the event that Authority or Lessee brings any action under this
Agreement, and prevails in said action, then prevailing party shall be
entitled to recover from the other party its reasonable fees incurred as
a result of said action. Such fees shall include, but not be limited to,
expert witness fees, court reporter fees, court costs, and attorney fees.
ARTICLE XX.
AMENDMENT
20.1 This Agreement constitutes the entire agreement between the parties. No
amendment, modification, or alteration of the terms of this Agreement
shall be binding unless the same be in writing, dated subsequent to the
date hereof and duly executed by the parties hereto.
ARTICLE XXI.
RELATIONSHIP OF PARTIES
21.1 Nothing contained herein shall be deemed or construed by the parties
hereto, or by any third party, as creating the relationship of
principal and agent, partners, joint venturers, or any other similar
such relationship, between the parties hereto. The parties understand
and agree that neither the method of computation of rent, nor any other
provision contained herein, nor any acts of the parties hereto creates a
relationship other than the relationship of Landlord and Tenant.
32
ARTICLE XXII.
APPROVALS BY AUTHORITY
22.1 Whenever this Agreement calls for approval by the Authority, such
approval shall be evidenced by the written approval of the President of
the Metropolitan Nashville Airport Authority or his designee.
ARTICLE XXIII.
ENVIRONMENTAL PROTECTION
23.1 Lessee agrees to comply with all laws, and to obey all rules,
regulations, or administrative orders of agencies of The Metropolitan
Government of Nashville and Davidson County, the State of Tennessee,
The United States and Authority as these laws, rules, regulations
and administrative orders may now exist and as they may be hereafter
adopted relating to protection of the environment.
ARTICLE XXIV.
ENVIRONMENTAL COMPLIANCE
24.1 Lessee shall not cause or permit any "Hazardous Substance" as defined in
Paragraph 23.4 of the Agreement to be used, stored or generated on the
Assigned Area, except for Hazardous Substances of types and quantities
customarily used or found in Lessee's business so long as said Hazardous
Substances are used, stored and/or generated in full compliance
with all laws. Lessee shall not cause or permit the release [as
"Release" is defined in 42 U.S.C. Section 9601(22) (as amended)] of any
Hazardous Substance, contaminant, pollutant, or petroleum product in, on
or under the Assigned Area or into any ditch, conduit, stream, storm
sewer, or sanitary sewer connected thereto or located thereon. Lessee
shall fully and timely comply with all
33
applicable federal, state, and local statutes and regulations
relating to protection of the environment, including, without limitation,
42 U.S.C. Sections 6991-6991i.
24.2 Compliance Upon Termination - Upon the termination of this Agreement or
vacation of the Assigned Area, Lessee shall, at Lessee's sole expense,
remove or permanently clean all Hazardous Substances that Lessee, or
anyone for whom Lessee is responsible, including, but not limited to, a
customer, invitee, employee, agent, or person having a contractual
relationship with the Lessee, caused to be situated on, at, in or under
the Assigned Area. This shall be done in compliance with all applicable
federal, state and local laws, regulations and ordinances and shall
include the performance of any necessary cleanup or remedial action.
Lessee shall provide Authority with copies of all records related to any
Hazardous Substances that are required to be maintained by any applicable
federal, state, or local laws or regulations.
Lessee shall, at Lessee's sole expense, clean up, remove and remediate
(l) any Hazardous Substances in, on, or under the Assigned Area in excess
of allowable levels established by all applicable federal, state and
local laws and regulations and (2) all contaminants and pollutants, in,
on, or under the Assigned Area that create or threaten to create a
substantial threat to human health or the environment and that are
required to be removed, cleaned up, or remediated by any applicable
federal, state, or local law, regulation, standard or order. This
obligation does not apply to a Release of Hazardous Substances,
pollutants, contaminants or petroleum products that existed on the
Assigned Area prior to the execution of the Agreement or caused solely by
the act or omission of Authority or a third party for whom the
34
Lessee is not responsible, e.g., not a customer, invitee, employee, agent,
or person having a contractual relationship with the Lessee.
24.3 Indemnity for Non-Compliance - Lessee shall defend, indemnify and
hold harmless the Authority and its consultants, agents, officers,
directors and employees from and against all claims, damages, losses
and expenses, whether direct, indirect or consequential, including but
not limited to attorneys fees, arising out of or resulting from the
Lessee's use of the Assigned Area or acts or omissions of others on the
Assigned Area for whom Lessee is responsible. Without limiting the
generality of the foregoing, the above indemnification provision
extends to liabilities, damages, suits, penalties, judgments, and
environmental cleanup, removal, response, assessment, or remediation
costs, arising from actual, threatened or alleged contamination of
the Assigned Area or actual, threatened or alleged release of any
Hazardous Substances, pollutant, contaminant or petroleum in, on or under
the Assigned Area or the Building, provided that said actual, threatened
or alleged contamination or release occurs after execution of the
Agreement and is not caused by contamination that existed at the
Assigned Area prior to execution of the Agreement. Lessee's obligations
under this paragraph shall survive termination or expiration of the
Agreement.
24.4 Definition of Hazardous Substances - As used herein, the term "Hazardous
Substances" means and includes any and all substances, chemicals, wastes,
sewage or other materials which are now or hereafter regulated,
controlled or prohibited by any local, state or federal law or regulation
requiring removal, warning or restrictions on the use, generation,
disposal or transportation thereof including,
35
without limitation, (a) any substance defined as a "hazardous substance",
"hazardous material", "hazardous waste", " toxic substance", or "air
pollutant" in the Comprehensive Environmental Response Compensation and
Liability Act(CERCLA), 42 U.S.C. Section 9601, et seq., the Hazardous
Materials Transportation Act (HMTA), 49 U.S.C. Section 1801, et seq.,
the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. Section
6901, et seq., the Federal Water Pollution Control Act (FWPCA), 33 U.S.C.
Section 1251, et seq., or the Clean Air Act (CAA), 42 U.S.C. Section
7401, et seq., all as amended and amended hereafter; (b) any substance
defined as a "hazardous substance", "hazardous waste", "toxic substance",
"extremely hazardous waste", "RCRA hazardous waste", "waste" or
"hazardous material" in Sections 25115,25117, 25122.7, 25120.2, 25124,
25281, 25316, 25501 of the California Health and Safety Code, or listed
pursuant to Section 25140 of the California Health and Safety Code; (c)
any hazardous substance, hazardous waste, toxic substance, toxic waste,
hazardous material, waste, chemical, or compound described in any other
federal, state, or local statute, ordinance, code, rule, regulation,
order, decree or other law now or at any time hereafter in effect
regulating, relating to or imposing liability or standards of conduct
concerning any hazardous, toxic, or dangerous substance, chemical,
material, compound, or waste. As used herein, the term "Hazardous
Substances" also means and includes, without limitation, asbestos;
flammable, explosive or radioactive materials; gasoline, oil; motor oil;
waste oil; petroleum (including without limitation, crude oil or any
fraction thereof); petroleum-based products; paints and solvents; lead;
cyanide; DDT; printing inks; acids; pesticides; ammonium compounds;
polychlorinated biphenyls; and other regulated chemical products.
36
24.5 Authority's Representation - To the best of Authority's current actual
knowledge and belief as of the date of Agreement execution, Authority is
not aware of any disposal of any Hazardous Substances in the Assigned
Area prior to the date of execution of this Agreement. Authority has
provided Lessee with an opportunity to inspect the Assigned Area prior to
the execution of this Agreement and date of possession.
ARTICLE XXV.
TAXES
25.1 In addition to the net monthly rental provided in Section 5 of the
Lease, Lessee shall pay to the Metropolitan Government of Nashville
and Davidson County, Tennessee upon billing therefor, within the time
period provided therein during each year of the term hereof, a tax
equivalent equal to the real estate taxes which would be assessed on the
amount by which the fair market rental on the Assigned Area exceeds the
rent which is paid by Lessee to Authority, hereunder. The amount of
such tax equivalent shall be subject to all administrative and judicial
review available with respect to the tax assessments imposed on
non-exempt properties. Lessee shall also pay, on or before their
respective due dates, to the appropriate collecting authority, all
federal, state and local taxes and fees, which are now or may hereafter
by levied upon the Assigned Area, or upon Lessee, or upon the business
conducted on the Assigned Area or upon any of Lessee's property used in
connection therewith; and shall maintain in current status all federal,
state, and local licenses and permit required for the operation of the
business conducted by Lessee.
25.2 Lessee has the right to legally protest to any proper taxing authority,
at its own expense, by whatever legal means, any
37
tax, levy, assessment or other governmental or similar charge it
deems inappropriate or unlawful.
25.3 Lessee covenants to furnish to Authority, promptly upon request, proof of
the payment of any tax, assessment, and other governmental or similar
charge, which is payable by as provided herein unless Lessee is
properly protesting the same as permitted above.
ARTICLE XXVI.
GENERAL PROVISIONS
26.1 Nondiscrimination - Lessee shall undertake an affirmative action program
as required by 14 CFR Part 152, Subpart E, to insure that no person shall
on the grounds of race, creed, color, national origin, or sex be
excluded from participating in any employment activities covered in 14
CFR Part 152, Subpart E. Lessee warrants that no person shall be
excluded on these grounds from participating or receiving the services or
benefits of any program or activity covered by this subpart. Lessee
shall require that its covered suborganizations provide assurances to
Lessee that they similarly will undertake affirmative action programs and
that they will require assurances from their suborganizations
as required by 14 CFR Part 152, Subpart E, to the same effect.
26.2 Federal Aviation Act, Section 308 - Nothing herein contained shall be
deemed to grant Lessee any exclusive right or privilege within the
meaning of Section 308 of the Federal Aviation Act or the conduct of any
activity on Airport, except that, subject to the terms and provisions
hereof, Lessee shall have the right to possess the Assigned Area under
the provisions of this Agreement.
38
26.3 Subordination to Agreements With the United States Government -
This Agreement is subject and subordinate to the provisions of any
agreement heretofore or hereafter made between Authority and the United
States Government relative to the operation or maintenance of Airport,
the execution of which has been required as a condition precedent to the
transfer of federal rights or property to Authority for Airport purposes,
or the expenditure of federal funds for the improvement or development of
Airport, including the expenditure of federal funds for the development
of Airport in accordance with provisions of the Federal Aviation Act of
1958, as it has been amended from time to time. Authority covenants that
it has no existing agreements with the United States Government in
conflict with the express provisions hereof.
26.4 Nonwaiver of Rights - No waiver of default by either party of any of the
terms, covenants, and conditions hereof to be performed, kept, and
observed by the other party shall be construed as, or shall operate
as, a waiver of any subsequent default of any of the terms,
covenants, or conditions herein contained, to be performed, kept, and
observed by the other party.
26.5 Notices - All notices to Authority required by this Agreement
shall be in writing addressed to:
President
Metropolitan Nashville Airport Authority
Nashville International Airport
One Terminal Drive, Suite 501
Nashville, Tennessee, 37214
and all notices to Lessee so required shall be addressed to:
Piemonte Foods, Inc.
400 Augusta Street
P. O. Box 9239
Greenville, SC 29605-9239
or any other address furnished to the Authority, in writing, by
Lessee. Any notice required or desired to be given under this
Agreement may be personally served or given by mail.
39
Any notice given by mail shall be sent certified mail with return
receipt requested, postage prepaid, addressed to the party to be served
at the last address filed by such party with the other party and shall
be deemed served on the date that such notice shall be deposited in the
United States mail in the manner described herein.
26.6 Captions - The headings of the several articles of this Agreement are
inserted only as a matter of convenience and for reference and in no way
define, limit, or describe the scope or intent of any provisions of this
Agreement and shall not be construed to affect in any manner the terms
and provisions hereof or the interpretation or construction thereof.
26.7 Severability - If one or more clauses, sections, or provisions of
this Agreement shall be held to be unlawful, invalid, or unenforceable,
the parties hereto agree that the material rights of either party shall
not be effected thereby.
26.8 Agent for Service or Process - The parties hereto expressly understand
and agree that if Lessee is not a resident of the State of Tennessee, or
is an association or partnership without a member or partner resident of
said State, or is a foreign corporation, then in any such event the Lesee
does designate it Tennessee registered agent as its agent for the purpose
of service of process in any court action between it and Authority
arising out of or based upon this Agreement, and the service shall be
made as provided by the laws of the State of Tennessee by serving also
the Lessee's registered agent. The parties hereto expressly agree,
covenant, and stipulate that Lessee shall also personally be served with
such process out of this State by the registered mailing of such
complaint and process to the Lessee at the
40
address set forth herein. Any such service out of this State shall
constitute valid service upon Lessee as of the date of receipt thereof.
The parties hereto further expressly agree that the Lessee is amenable
to and hereby agrees to the process so served, submits to the
jurisdiction, and waives any and all obligations and protect thereto, any
laws to the contrary notwithstanding.
26.9 Waiver of Claims - Lessee hereby waives any claim against Authority and
the State of Tennessee and its officers, or employees for loss of
anticipated profits caused by any suit or proceedings directly or
indirectly attacking the validity of this Agreement or any part thereof,
or by any judgment or award in any suit proceeding declaring this
Agreement null, void or voidable, or delaying the same or any part
thereof, from being carried out.
26.10 Right to Develop Airport - The parties hereto further covenant and
agree that Authority reserves the right to further develop or improve
Airport Terminal and all landing areas and taxiways as it may see fit,
regardless of the desires or view of Lessee and without interference or
hindrance. In such instances, the costs of development and financial
impact, as they impact Lessee, shall be borne by Authority and Lessee
according to mutually agreed upon terms and conditions.
26.11 Incorporation of Exhibits - All exhibits referred to in this Agreement
are intended to be and hereby are specifically made a part of this
Agreement.
26.12 Incorporation of Required Provisions - The parties incorporate herein by
reference all provisions lawfully required to be contained herein by any
governmental body or agency.
41
26.13 Nonliability of Agents and Employees - No member, officer, agent,
President, or employee of the Authority or the Lessee shall be charged
personally or held contractually liable by or to the other party under
this Agreement or because of any breach thereof or because of its or
their execution.
26.14 Successors and Assigns Bound - This Agreement shall be binding upon and
inure to the benefit of the successors and assigns of the parties hereto
where permitted by this Agreement.
26.15 Right to Amend - In the event that the Federal Aviation Administration or
its successor requires modifications or changes in this Agreement as a
condition precedent to the granting of funds for the improvement of the
Airport, or otherwise, Lessee shall make such amendments, modifications,
revisions, supplements, or deletions of any of the terms, conditions, or
requirements of this Agreement as may be reasonably required and any
expenses resulting from such amendments, modifications, revisions,
supplements or deletions, shall be borne solely by Lessee.
26.16 Time of Essence - Time is of the essence in the performance and/or
satisfaction of the duties and/or conditions of this Agreement.
26.17 Gender - Words of any gender used in this Agreement shall be held and
construed to include any other gender, and words in the singular number
shall be held to include the plural, unless the context otherwise
requires.
26.18 Force Majeure - Neither Authority nor Lessee shall be deemed in
violation of this Agreement if it is prevented from performing any of
the obligations hereunder by reason of strikes, boycotts, labor
disputes, embargoes, shortage of
42
material, acts of God, acts to the public enemy, acts of superior
governmental authority, weather conditions, riots, rebellion, sabotage,
or any other circumstances for which it is not responsible or which are
not within its control.
26.19 Disadvantaged Business Enterprise - Lessee agrees that it will comply
with Authority's Disadvantaged Business Enterprise Program and
applicable laws and regulations, as they now exist and as they may be
hereafter modified.
ARTICLE XXVII.
DOT TITLE VI ASSURANCES
27.1 Compliance with Regulations: Lessee shall comply with the regulations
relative to nondiscrimination in Federally-assisted programs of the
Department of Transportation (hereinafter "DOT") Title 49, Code of
Federal Regulations, Part 21, as they may be amended from time to
time (hereinafter referred to as the "Regulations"), which are herein
incorporated by reference and made a part of this Agreement.
27.2 Nondiscrimination: Lessee, with regard to the services provided by it
during the term of this Agreement, shall not discriminate on the grounds
of age, sex, race, creed, color, handicap, or national origin in the
selection and retention of sublessees or subcontractors, including
procurement of materials and leases of equipment. Lessee shall not
participate either directly or indirectly in the discrimination
prohibited by Section 21.5 of Regulations.
27.3 Solicitations for Sublessees and Subcontractors, Including Procurement
of Materials and Equipment: In all solicitations involving either
competitive bidding or negotiation by Lessee for services or work to
be performed
43
under a sublease or subcontract, including procurement of materials and
leases of equipment, each potential sublessee, subcontractor or supplier
shall be notified by Lessee of obligations under this Agreement and
Regulations relative to nondiscrimination on the grounds of age, sex,
race, creed, color, handicap, or national origin.
27.4 Information and Reports: Lessee shall provide all information and
reports required by Regulations or directives issued pursuant thereto,
and shall permit access to its books, records, accounts, other
sources of information, and its facilities as may be determined by
Authority or the Federal Aviation Administration to be pertinent to
ascertain compliance with such regulations, orders, and instructions.
Where any information required of a Lessee is in the exclusive possession
of another who fails or refuses to furnish this information, Lessee shall
so certify to Authority or the Federal Aviation Administration, as
appropriate, and shall set forth what efforts it has made to obtain the
information.
27.5 Sanctions for Noncompliance: In the event of breach of any of the
nondiscrimination provisions of this Agreement, Authority shall have the
right, in addition to imposing sanctions deemed appropriate by Authority
and the Federal Aviation Administration, to immediately terminate this
Agreement and to re-enter and repossess Assigned Area and any permanent
improvements thereon, and hold same as if this Agreement had never been
made or issued.
27.6 Equal Employment Opportunity: In the performance of services under this
Agreement, Lessee shall not discriminate against any employee or
applicant for employment because of race, creed, color, sex, age,
handicap, or national origin. Lessee shall take affirmative action to
ensure that
44
applicants are employed and that employees are treated during employment,
without regard to their race, creed, color, sex, age, handicap, or
national origin. Such action shall include, but not be limited to,
the following: employment, upgrading, demotion, or transfer; recruitment
or other forms of compensation; and selection for training, including
apprenticeship. Lessee agrees to post in conspicuous places,
available to employees and applicants for employment, notices to be
provided by the government setting forth the provisions of this
nondiscrimination clause. Lessee shall, in all solicitations or
advertisements for employees placed by or on behalf of Lessee, state that
all qualified applicants shall receive consideration for employment
without regard to race, creed, color, sex, age, handicap, or national
origin. Lessee shall incorporate the foregoing requirements of this
paragraph in all subleases and subcontracts for services covered by this
Agreement.
27.7 Incorporation of Provisions: Lessee shall include the provisions of
these sections 26.1 through 26.7 in every sublease and subcontract,
including procurement of materials and leases of equipment, unless
exempted by Regulations or directives issued pursuant thereto. Lessee
shall take such action, with respect to any sublease, subcontract or
procurement, as Authority or the Federal Aviation Administration
may direct as a means of enforcing such provisions including sanctions for
noncompliance; provided, however, that in the event Lessee becomes
involved in or is threatened with litigation with a sublessee,
subcontractor or supplier as a result of such directions, Lessee may
request Authority to enter into such litigation to protect the interest
of Authority, and, in addition, Lessee may request the United States
to enter into such litigation to protect the interests of the United
States.
45
ARTICLE XXVIII.
ENTIRE AGREEMENT
28.1 The parties hereto understand and agree that this instrument contains the
entire agreement between them. The parties hereto further understand
and agree that the other party and its agents have made no
representations or promises with respect to this Agreement, except as in
this Agreement expressly set forth, and that no claim or liability for
cause for termination shall be asserted by either party against the
other, and such party shall not be liable by reason of the making of any
representations or promise not expressly stated in this Agreement, any
other written or oral agreement with the other party being expressly
waived.
The individuals executing this Agreement warrant that they have full
authority to execute this Agreement on behalf of the entity for whom they
are acting herein.
The parties hereto acknowledge that they thoroughly read this Agreement,
including any exhibits or attachments hereto, and have sought and
received competent advice and counsel which was necessary for them to
form a full and complete understanding of all rights and obligations
herein.
46
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and date first written above.
AUTHORITY
ATTEST: METROPOLITAN NASHVILLE
AIRPORT AUTHORITY:
BY (Signature of ????) BY: (Signature of William G. Moore, Jr.)
Board Secretary William G.Moore, Jr.
President
APPROVED AS TO
FORM AND LEGALITY: RECOMMENDED:
BY: (Signature of ????) BY: (Signature of Glenda C. McClellan)
Legal Counsel Glenda C. McClellan
Director of Properties
Stokes & Bartholomew, P.A.
Third National Financial Center
Nashville, Tennessee 37219
DATE: 01-11-96 DATE: 3-26-96
LESSEE:
PIEMONTE FOODS, INC.
BY: (Signature of ????)
TITLE: President
DATE: March 25, 1996
47
CERTIFICATE OF ACKNOWLEDGEMENT
STATE OF
COUNTY OF
Before me, , of the state and county
aforesaid, personally appeared , with whom
I am personally acquainted, and who upon oath, acknowledged (himself)(herself)
to be the of the within
bargainor, a corporation, and that (he)(she) as such being
authorized so to do, executed the foregoing instrument for the purpose
therein contained, by signing the name of the corporation by
(himself)(herself) as .
Witness my hand and seal, at office in this day
of , 19 .
Notary Public
My Commission Expires:
48
(Map depicting the Metropolitan Nashville Airport Authority and the
Nashville International Airport appears here.)
EXHIBIT A
(Map of Building #4113 appears here depicting the 26,000 square foot
area under lease and the 72,000 square foot land under lease.)
EXHIBIT B
RENT SCHEDULE
PIEMONTE, INC.
BUILDING 4113
CONTRACT YEAR 1
SQUARE RATE ANNUAL MONTHLY
DESCRIPTION FOOTAGE PSF RENTAL RENTAL
BLDG 4113 26,000 $1.43 $37,180.00 $3,098.33
LAND 98,000 $0.32 $31,360.00 $2,613.33
SUB-TOTALS: 124,000 $1.75 $68,540.00 $5,711.67
PREPAID RENTAL (CONTRACT YEAR 1): $22,027.31 $1,835.61
RENTAL CREDIT: TO BE DETERMINED $0.00 $0.00
GRAND TOTAL: $46,512.69 $3,876.06
EXHIBIT C