HomeMy WebLinkAboutECAT C03-330 Continental Airlines_second amendmentSECOND AMENDMENT
TO
EAGLE COUNTY AIR TERMINAL CORPORATION
"SIGNATORY AIRLINE -TYPE C"
TERMINAL BUILDING LEASE
THIS SECOND AMENDMENT to the Eagle County Air Terminal Corporation
Signatory Airline-Typeeday
C Terminal Building Lease (hereinafter "Seconr ..'Umendment") is made
and enotZod into this of fVlr�, ,2003, by and between Eagle County Air Terminal
Corporation, a not for profit 63-20 Corporation of the State of Colorado, hereinafter called
"CORPORATION" and Continental Airlines, Inc., a corporation organized and existing under
the laws of the State of Delaware and authorized to do business in the State of Colorado,
hereinafter called "AIRLINE."
RECITALS
The circumstances surrounding the making of this Second Amendment are as follows:
A. The parties to this Second Amendment entered into the Signatory Airline -Type C
Terminal Building Lease Agreement ("Agreement") on May 29, 2001 for a one-year term from
the date of beneficial occupancy.
B. The parties further entered into a First Amendment ("First Amendment") to extend
that Agreement for one year.
C. The parties again wish to extend that Agreement as amended, for an additional three-
year term. Paragraph 18.9 of the Agreement provides that the Agreement may be amended in
writing and executed by duly authorized representatives of the parties.
AGREEMENT
THEREFORE, based upon and in consideration of the recitals, promises and covenants
set forth herein and those set forth in the Agreement, the parties hereto agree to amend the
Agreement as follows:
1. Section 1.1 Definitions is hereby amended by the amendment of Sections 1.1D (now
known as 1.1K) and 1.1N which paragraphs shall read as follows:
"K.(formerly 1.1.D) "Signatory Airline" shall mean those airlines, including
code sharing or wholly owned subsidiaries of such airlines, providing AIR TRANSPORTATION
to and from the AIRPORT using the TERMINAL BUILDING that have executed similar
residual type agreements to this AGEEMENT with CORPORATION covering the lease, use and
occupancy of facilities at the TERMINAL BUILDING with a term of three years, five years or at
least ten years."
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"N. "Signatory Airline- Type C" shall mean those airlines, including code
sharing or wholly owned subsidiaries of such airlines, providing AIR TRANSPORTATION to
and from the AIRPORT using the TERMINAL BUILDING that have executed similar residual
type agreements to this AGREEMENT with CORPORATION covering the lease, use and
occupancy of facilities at the TERMINAL BUILDING with a term of three years."
2. Section 2.1 Term shall be amended to read as follows:
"Section 2.1 Term. This Agreement shall become effective at 12:01 a.m. local
time on November 21, 2003, hereinafter called the "Effective Date", and shall
continue for three years, expiring at 11:59 p.m. on December 1, 2006 subject to
prior termination as provided in Article 14 hereof. The parties agree that this is a
Signatory Airline- Type C Agreement as a result of such three year lease term."
3. Section 7.2 Base Rent and Base Rent Premium shall be amended to read as follows:
"Section 7.2 Base Rent. AIRLINE shall pay to CORPORATION an annual rent
("Base Rent") for AIRLINE'S exclusively leased premises and joint use premises.
AIRLINE'S annual rent consisting of Base Rent shall not exceed $350,000.
AIRLINE is considered a Signatory Airline -Type C for purposes of calculation of
Base Rent. The Base Rent shall be paid annually in four equal monthly
installments on December 1, January 1, February 1, and March 1 during the term
of this Second Amendment."
4. Section 7.5 Rent Deposit shall be amended to read as follows:
" Section 7.5 Rent Deposit. AIRLINE shall pay a deposit equal to three months,
or one -quarter of the annual, whichever is larger, Base Rent prior to the
commencement of the lease term. This requirement shall be waived for an
AIRLINE that has been current for a period of eighteen months in its payments to
CORPORATION and COUNTY."
5. Section 7.8 Passenger Facility Charges shall be amended to read as follows:
"Section 7.8 Passenger Facility Charges. No Passenger Facility Charges shall
be used for that portion of the TERMINAL BUILDING exclusively leased by
AIRLINE. No depreciation or amortization charges for facility costs funded from
the proceeds of a Passenger Facility Charge shall be included in the determination
of rates for AIRLINE rentals and fees. Subject to Federal law enacted subsequent
to this Amendment, it is further agreed that AIRLINE acknowledges and agrees
that any Passenger Facility Charges held by AIRLINE are hereby deemed to be
held in trust by AIRLINE for the benefit of CORPORATION."
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6. Section 8.1 (A) Year -End Refund of Net Concession Revenue shall be amended to
read as follows:
"Section 8.1 Year -End Refund of Net Concession Revenue.
A. Except as set forth hereafter, at the end of each FISCAL YEAR or part
thereof falling within the lease term, the CORPORATION will refund
AIRLINE, along with other SIGNATORY AIRLINES, within sixty (60) }
days of the close of the audit, 50% of any Net Concession Revenues. The
SIGNATORY AIRLINE'S share of Net Concession Revenue shall be
distributed to them prorata based on actual enplanements from the
TERMINAL BUILDING during such FISCAL YEAR. AIRLINE'S year-
end refund of Net Concession Revenue shall be subject to adjustment
according to the year-end reconciliation of the AIRLINE'S base rent
allocation recalculation further described in Section 8.2A. Furthermore, if
AIRLINE is in default of any section of the Agreement, as amended,
payment of any share of Net Concession Revenue determined by
CORPORATION to be due to AIRLINE shall be immediately withheld
from AIRLINE until such default is cured and any such Net Concession
Revenue share shall result in an immediate offset against any amounts due
to the CORPORATION. In the event that at the end of any FISCAL
YEAR or part thereof falling within the lease term at which time the
CORPORATION shall determine that there shall have accrued to the
AIRLINE a refundable share of Net Concession Revenue and the
AIRLINE shall, at that time, be the subject of a "Filing" (as that term is
defined hereafter) the AIRLINE's refundable share of Net Concession
Revenue shall be held by the Corporation until the earlier of the dismissal
and closing of the Filing, the court -approved and authorized assumption of
the Agreement, or the court approved and authorized rejection of the
Agreement, in which event, the AIRLINE's refundable share of Net
Concession Revenue shall be collateral first for any pre -petition amounts
outstanding under the Agreement and then for any post- petition amounts
outstanding under the Agreement."
The remainder of Section 8.1 as set forth in the Agreement shall remain in full force and
effect.
7. Section 8.2 (A) Base Rent Allocation Among Air Transportation Companies shall be
amended to read as follows:
" Section 8.2 Base Rent Allocation Among Air Transportation Companies.
A. Base Rent for all AIRLINE's consists of the following three components calculated
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annually:
1. EXCLUSIVE USE SPACE
2. JOINT USE SPACE
3. COMMERCIAL PASSENGER SERVICE RIGHTS PURCHASE
CORPORATION will calculate the base rent equivalent square footage rate (Base
Rental Rate) 'annually during the term of this lease by dividing:
(i) $2,150,000 (the amount of Airline rent projected to be needed by the
CORPORATION to fund operations and maintenance expenses, depreciation of
CORPORATION -funded assets, other miscellaneous costs, debt service
coverage and the debt operations and maintenance reserve requirement)
(ii) less a fixed amount of $300,000 from the CORPORATION applied to subsidize
and lower the SIGNATORY AIRLINES' total unallocated base rent
by the sum of the EXCLUSIVE USE SPACE and JOINT USE SPACE rented by all
AIRLINE's during the year. This Base Rental Rate will be used to calculate AIRLINE's
Exclusive Use portion of Base Rent, by multiplying the EXCLUSIVE USE SPACE square
footage times the Base Rental Rate. The JOINT USE SPACE portion of the base rent for
AIRLINE is the base rental rate multiplied by the total square footage of all JOINT USE
SPACE rented less the annual debt service and coverage requirements for the purchase of the
commercial service rights from the fixed base operator at the Airport. The COMMERCIAL
PASSENGER SERVICE RIGHTS PURCHASE portion of the Base Rent for all AIRLINE's
is the annual debt service and coverage amount required to be paid by CORPORATION during
the year for the purchase of the commercial service rights from the fixed base operator at the
Airport. The annual Base Rent amount for all three components for AIRLINE will not be
more than the amount described in Section 7.2 during the term of the lease.
A Joint Use Formula will be used to prorate eighty percent (80 %) of the JOINT USE
SPACE rent according to the ratio of the number of each SIGNATORY AIRLINE's enplaning
passengers at the TERMINAL BUILDING during the most recent calendar year to the total
number of enplaning passengers of all SIGNATORY AIRLINE users of the space during that
same year. The remaining twenty percent (20 %) of the JOINT USE SPACE rent is to be
divided equally among all SIGNATORY AIRLINE USERS of the space. Solely for purposes
of this formula, the twenty percent (20 %) equal pro-rata share shall not apply to any
SIGNATORY AIRLINE operating only aircraft weighing less than thirty thousand (30,000)
pounds gross landed weight.
For new SIGNATORY AIRLINES, the twenty percent (20 %) portion of the JOINT
USE SPACE rent will be paid monthly, calculated on an annualized basis; the eighty percent
(80 %) portion will be paid monthly per enplanement at a rate calculated by dividing the
previous calendar year's eighty percent (80 %) JOINT USE SPACE rent by the total
SIGNATORY AIRLINES enplanements during that year, and will be subject to adjustment
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during the year-end reconciliation.
A formula will be used to prorate one hundred percent (100%) of the COMMERCIAL
PASSENGER SERVICE RIGHTS PURCHASE portion of the Base Rent according to the ratio
of the number of each SIGNATORY AIRLINE's enplaning passengers at the TERMINAL
BUILDING during the most recent calendar year to the total number of enplaning passengers
of all SIGNATORY AIRLINE users during that same year.
As part of the annual year-end reconciliation and prior to the year-end refund of Net
Concession Revenue, a recalculation of AIRLINE's base rent allocation will be prepared by
the CORPORATION, and CORPORATION shall provide a final accounting of the prior
year's base rent allocation based on actual enplanements at the TERMINAL BUILDING
during the most recent fiscal year. If amounts were paid in excess of the reconciled base rent
recalculation amount, the excess amount will be added to the AIRLINE'S refund of Net
Concession Revenue. If amounts actually required are in excess of base rent amounts paid,
this excess amount will be deducted from the year-end refund of the Net Concession Revenue.
If the excess amount of base rent exceeds the year-end refund of AIRLINE's share of Net
Concession Revenue, CORPORATION shall invoice AIRLINE and AIRLINE shall pay the net
amount due for the difference between the year-end base rent excess and the year-end refund of
Net Concession Revenue so long as said amount is within the base rent of $350,000.00.
Adjustments to this base rent amount due, based on the prior year reconciliation
pursuant to this Article 8, shall apply without the necessity of formal amendment of the
Agreement.
CORPORATION has calculated the base rent equivalent square footage rate based upon
the actual space constructed and rented by all AIRLINEs. The calculation for the first year of the
lease term under this Second Amendment is attached hereto as Exhibit "B" which may be
amended from time to time as set forth herein."
effect.
The remainder of Section 8.2 as set forth in the Agreement shall remain in full force and
8. Section 9.1(C) is hereby deleted.
9. Section 15.1 Assignment and Subletting is hereby amended to read as follows:
"Section 15.1 Assignment and Subletting. AIRLINE shall not assign this
Agreement, or any part hereof, or any of the privileges recited herein, in any
manner whatsoever, nor sublet any portion of the premises leased hereby, without
the prior written consent of CORPORATION, which consent shall not be
unreasonably withheld, provided that AIRLINE acknowledges that
CORPORATION need not consent to any such assignment or subletting at any
time, and to the extent that, CORPORATION has space available to lease to AIR
TRANSPORTATION companies."
10. Section 15.4 Bankrutpcy is hereby amended to read as follows:
"Section 15.4 Bankruptcy. Notwithstanding Section 15.1 in the event that a
petition for relief under Title 11 of the United States Code or under any similar or
successor federal, state or local statute is filed by or against the AIRLINE (a
"Filing")
notice of the Filing; (A) The AIRLINE shall give the CORPORATION immediate written
(B) The AIRLINE will promptly confirm the outstanding amount of
any obligations hereunder due the Corporation as of the date of Filing;
(C) The AIRLINE will fully and timely perform all obligations arising
hereunder commencing as of the date of the Filing and thereafter for the purposes of this provision
and of Section 365(d)(3) of Title 11 of the United States Code, the parties agree that, in the event that
the AIRLINE shall be the subject of a Filing commenced on a day (the "Filing Date") when the rent
due for the then -current month is outstanding and unpaid, the obligation for rent during that month in
which the Filing shall have occurred shall be considered to accrue and be due pro rasa on a daily
basis during that month and the AIRLINE will pay the CORPORATION the pro rata rent for the
period from the Filing Date through the end of that month within thirty (30) days of written demand
therefore by the CORPORATION.
(D) The AIRLINE will promptly determine whether it intends to
assume or reject the unexpired term of this Lease, if any, and shall promptly advise the
CORPORATION of such determination;
(E) The AIRLINE will not seek to delay the date by which it will make
the determination under (D) above and obtain any necessary third -party authorization (including
court approval) therefor beyond the 60`h day following the date of the Filing without the prior
express consent of the CORPORATION;
(F) If the AIRLINE determines that it wishes to assume the Lease, the
AIRLINE will cure all defaults, compensate the CORPORATION for all damages incurred as a
result of such defaults, provide the CORPORATION with adequate assurances of future
performance and comply with any and all other statutory or legal requirements prior to the
effective date of such assumption;
(G) If the AIRLINE determines that it wishes to assume the Lease and
assign the Lease to a third -party, the AIRLINE shall seek consent of the CORPORATION which
consent shall not be unreasonably withheld and shall provide to the CORPORATION all
pertinent information with respect to the proposed assignee, cure all defaults, compensate the
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CORPORATION for all damages incurred as a result of such defaults, provide the
CORPORATION with adequate assurances of future performance through the proposed assignee
and comply with any and all other statutory or legal requirements;
(H) IF the AIRLINE wishes to reject the unexpired term of the Lease, if
any, the AIRLINE will not seek to have the effective date of such rejection determined to be a
date earlier than that date on which (i) the AIRLINE shall have returned control and possession
of the premises to the CORPORATION in the condition and on the terms set forth herein and
relevant to the redelivery of possession to the CORPORATION, and (ii) the AIRLINE shall have
obtained court approval and authorization for such rejection; and the AIRLINE shall fully and
timely pay all rent and other charges through the date of such rejection; and
(1) The AIRLINE shall be deemed to have expressly consented to the
modification of the stays of proceedings in any Filing in the event of any post -Filing. default by
the AIRLINE under the terms of this Lease for the purpose of allowing the CORPORATION to
exercise any default rights or remedies arising from such default."
11. Article 17 (1) and (2) are hereby amended as follows:
"(1) President
Eagle County Air Terminal Corporation
P.O. Box 850
Eagle, CO 81631
Telephone: (970) 524-8246
Fax: (970) 524-8247
and also
Eagle County Attorney
P.O. Box 850
Eagle, CO 81631
Telephone: (970) 328-8685
Fax: (970) 328-8699
(2) AIRLINE
ATTN: Sr • lMan ate/
Telephone: - 713 - b y - 6 90H
Fax:_ 713 - 3aq - 6 9s y f,
12. Any reference to Exhibit "A" in the Agreement, First Amendment or this Second
Amendment shall mean the Exhibit "A" which is attached to the First Amendment and
incorporated herein by reference thereto.
13. Any reference to Exhibit "B" in the Agreement or this Second Amendment shall
mean the Exhibit `B" which is attached hereto and incorporated herein by reference.
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14. The terms of the Agreement and the First Amendment shall continue in full force and
effect except as modified by this Second Amendment.
IN WITNESS WHEREOF the parties hereto have executed this Second Amendment on
the day and year first written above.
CORPORATION:
wL A
AIRLINE:
CONTINENTAL AIRLINES, INC.
By:
G:\DHM\AIRPORnCmtinental\Continentalamend2.DOC
en Shannon
ce President
C-31porate Real E:tets
& Envuonrnanlal Affai s
(Title)
EAGLE COUNTY AIR TERMINAL CORPORATION
ECATALRENT0304c.123 Exhibit B
Calculation of Terminal Rent for Ski Season 2003-04
(No Rent Premium with 3 Year Leases for Mesa,Delta,NW&CO; Subsidy Provided)
30-Jul-03
Exclusive and Joint Use Space; RatelSq Ft Calculation
Exclusive
Sq Ft
RatelSq Ft
Space Rent
American
4,512
$38.92
$175,620
Mesa
2,918
$38.92
113,577
Delta
1,082
$38.92
42,114
Northwest
865
$38.92
33,668
Continental
1,825
$38.92
71,034
Total Exclusive Space/Rent 11,202 $436,013
Total Joint Use Space 36,328
Total Exclusive and Joint Space 47,530
Terminal Rent per Section 8 $2,150,000
Less ECAT SubsidyNear for 3 Year Term (300,000)
$1,850,000
Total Exclusive and Joint Space 47,530
Calculated Rental RatelSq Ft $38.92
Terminal Rent Net of Subsidy $1,850,000
Less Exclusive Space Rent (436,013)
Total Joint Rent to Allocate $1,413,987
Less FBO Business Purchase Joint Rent (631,750)
20% 80%
Total Joint Space Rent to Allocate $782,237 $156,447 $625,790
Joint Space Rent Allocation
Joint
20% Equal
2002 Actual
Market
80% Allocated
Space
Share
_Enplanements
Share
Share
Rent
American
$31,289
80,046
47.3%
$295,835
$327,124
Mesa
31,289
41,548
24.5%
153,554
184.843
Delta
31,289
16,509
9.7%
61,014
92,304
Northwest
31,289
15,088
8.9%
55,762
87,052
Continental
31,289
16,133
9.5°%
59,625
90,914
Total $156,447 169,324 100.0°% $625,790 $782,237
FBO Business Purchase Joint Rent Allocation
FBO
FBO
Business
Market
Business
Purchase
Share
Purchase
Joint Rent
American
47.3°%
$631,750
$298,653
Mesa
24.5%
$631,750
155,016
Delta
9.7°%
$631,750
61,595
Northwest
8.9°%
$631,750
56,294
Continental
9.5°%
$631,750
60,192
100.0°% $631.750
Page 1 of 2
EAGLE COUNTY AIR TERMINAL CORPORATION
ECATALRENT0304a123
Calculation of Terminal Rent for Ski Season 2003-04
Exhibit B
(No Rent Premium with 3 Year Leases for Mesa,Delta,NW&CO; Subsidy Provided)
30-Jul-03
Components of Airline Terminal Rent
Excludes Refund of Net Concession Revenue Share After Year End)
American (10 Year LeaseZ
Four Equal
Monthly
Base Rent -Exclusive
Annual Payments
Payments
Allocated Base Rent - Joint (20°% Equal Shares)
$175,620
31,289
Allocated Base Rent - Joint (80°% Enplanements)
295,835
Allocated Base Rent - FBO Business Purchase (0%/100%)
298,653
Less Adjustment Due to AA $750,000 Cap
(51,397)
Total American Rent
$750 000 _ $62 500
Mesa Q Year Lease):
Allocated Base Rent - Exclusive
$113,577
Allocated Base Rent - Joint (20°% Equal Shares)
31,289
Allocated Base Rent - Joint (80% Enplanements)
153,554
Total Space Rent
Base Rent Premium (00%)
$298.420
Allocated Base Rent - Business Purchase (00/o/100%)
0
155,016
Total Mesa Rent
$453 436 $113 359
Delta (3 Year Lease):
Allocated Base Rent - Exclusive
$42,114
Allocated Base Rent - Joint (20% Equal Shares)
31,289
Allocated Base Rent - Joint (80% Enplanements)
61,014
Total Space Rent
$134,418
Base Rent Premium (00%)
Allocated Base Rent - FBO Business Purchase (0%/100%)
0
61,595
Total Delta Rent
196 013 tAQ 003
Northwest (3 Year Lease):
Allocated Base Rent - Exclusive
$33,668
Allocated Base Rent - Joint (20% Equal Shares)
31,289
Allocated Base Rent - Joint (80% Enplanements)
Total Space Rent
55,762
Base Rent Premium (00%)
$120.720
Allocated Base Rent - FBO Business Purchase (0%/100%)
0
56,294
Total Northwest Rent
177 0144tAA 253
Continental 3 Year L as
Allocated Base Rent- Exclusive
Allocated Base Rent - Joint (20°% Equal Shares)
$71,034
Allocated Base Rent - Joint (80°% Enplanements)
31,289
Total Space Rent
59,625
Base Rent Premium (00%)
$161,948
Allocated Base Rent - FBO Business Purchase (0%/100°%)
0
60,192
Total Continental Rent
$222 141 55,535
Total Airline Rent•
Total Base Rent - Exclusive
Total Allocated Base Rent - Joint
$436,013
Total Base Rent Premium
782,237
Allocated Base Rent - FBO Business Purchase (0°%/100%)
0
Less Adjustment Due to AA $750,000 Cap
631,750
_ (51,397)
Total Rent
$1,798 603 $262 151
$62 500
Page 2 of 2
Om
DISTRIBUTION
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