HomeMy WebLinkAboutECAT07-370 American Airlines_US Airways_SubleaseAMERICAN AIRLINES, INC.
AGREEMENT OF SUBLEASE
This Agreement of Sublease (this "Sublease"), dated as of the day of
December, 2007, is entered into by and between AMERICAN AIRLINES, INC., a
Delaware corporation, ("American") and US AIRWAYS, INC., a Delaware corporation
(the "Sublessee");
WITNESSETH:
WHEREAS, by the Terminal Building Lease effective December 1, 2006, and any
amendments and/or supplements thereto (as may be applicable) (the "Base Lease"),
American leases from the Eagle County Air Terminal Corporation ("Landlord") certain
premises (the "Base Lease Premises") at Eagle County Regional Airport (the "Airport")
(to the extent that the Base Lease Premises are part of a larger structure, that structure
shall be referred to herein as the "Building"); and
WHEREAS, American is willing to sublease to Sublessee and Sublessee is willing to
sublease from American, a portion of the Base Lease Premises, as more fully
described herein, on the terms and conditions set forth herein;
NOW, THEREFORE, American and Sublessee agree as follows:
1. Demised Premises. American hereby subleases to Sublessee and Sublessee
hereby subleases and takes from American three ticket counter positions, one
bagwell, the space between the counters/bagwell and the backwall, and 30% of
American's curbside areas. These areas are located in the Base Lease
Premises, as set forth in Attachment "A" and shown by the red lines on
Attachment "C" attached hereto and made a part hereof (the "Demised
Premises").
2. Term.
The term of this Sublease shall commence on December 1, 2007 and expire on
November 30, 2008. In no case shall this Sublease remain in effect beyond the
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termination or the term of the Base Lease, or the expiration date of this
Sublease.
3. Base Lease Incorporated. Except as set forth herein, this subletting shall be on
the same terms and conditions as are contained in the Base Lease, to the extent
that such Base Lease terms are appropriate to this Sublease. Further,
Sublessee acknowledges and agrees that this Sublease shall be in all respects
subject and subordinate to the Base Lease. Nothing contained in this Sublease
shall be deemed to confer upon Sublessee any rights that are in conflict with the
Base Lease, as the same may be altered or amended from time to time.
Sublessee shall not do or permit to be done any act or thing that would
contravene the terms of the Base Lease, and the Base Lease shall govern in the
event of a conflict with this Sublease. In the event that the Base Lease is
cancelled or terminated for any reason, the term of this Sublease shall
automatically terminate simultaneously therewith.
4. Use. During the term hereof, Sublessee shall use the facilities and equipment
furnished by American only for such purposes as are part of its business of
providing passenger airline transportation services at the Airport.
5. Rent, Default Interest, Other Costs, Late Payments, Per -Use Charges.
A. Facilities Rent. As rental for the use of the Demised Premises, Sublessee
shall pay American a base rental as set forth in Attachment B, without set-off
or deduction, due and payable in advance on the first day of each month
during the term hereof. Rental due hereunder shall be subject to adjustment
for any changes made to the rental due under the Base Lease, such as, but
not limited to, annual rental rate adjustments, or for any increase in
American's costs in providing, maintaining or operating the Demised
Premises, and American shall notify Sublessee in writing of any such
adjustment. Any adjustment in rental shall be effective simultaneously with
the increase of American's costs. In the event this Sublease commences or
terminates on a day other than the last day of any particular month, all rentals
hereunder shall be prorated for such month of commencement and/or
termination. Sublessee's failure to pay, when due, any rental required
hereby, or any portion thereof, shall be considered a material breach of this
Sublease and American may, at its option, immediately terminate this
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Sublease, with or without notice to Sublessee. All amounts due hereunder
shall then become immediately due and payable.
B. Payment Address. All rental payments are to be sent to the following
address:
American Airlines, Inc.
P.O. Box 70588
Chicago, IL 60673-0588
C. Use Charges and Assessments. Sublessee shall be responsible for any
and all of its rents, landing fees and all other charges and/or assessments
associated with its use of the Airport. Sublessee also agrees to reimburse
American upon demand for its pro rata share of security costs related to the
use of the Building that is not otherwise paid and/or reimbursed by the
Transportation Security Administration ("TSA") or other appropriate
governmental entity. Such pro ration will be done on the same basis
specified in the Base Lease. Sublessee shall be responsible for any cost
associated with its operations, such as payment to vendors serving its aircraft
and/or personal property and/or delivering goods and/or services to
Sublessee, utility charges, communication charges, facility maintenance
charges, and any and all other rents, charges, and/or assessments relating to
its operation at the Airport. Sublessee shall be responsible for its pro rata
share of any common charges at the Airport or other charges related to the
use of the Demised Premises.
D. Other Fees. If Landlord assesses a fee associated with this Sublease of the
Demised Premises, then such fee and/or assessment shall be added to the
Sublessee's invoice and shall be paid by Sublessee.
E. Late Payment. Sublessee acknowledges that the late payment by
Sublessee of any monthly installment of rent or other charges will cause
American to incur certain costs and expenses not contemplated under this
Sublease, the exact amount of which costs are difficult or impracticable to
determine. Therefore, if any such amount owing is not received by American
within ten (10) days following the due date thereof, Sublessee shall
immediately pay to American a late charge equal to 1.5% of such amount
owing and shall pay American an additional late charge equal to 1.5% of such
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amount owing for each additional 30 day period following the due date. To
the extent that any late charge provided for hereunder is determined to
constitute interest, in no event shall such late charge, plus any other interest
due on sums owed to American hereunder, ever exceed the maximum
interest rate permitted by law, and in the event such amount should exceed
the maximum rate, then the amount owed to American shall automatically be
reduced to equal the maximum amount permitted by law.
6. Utilities and Services. American will furnish the Demised Premises with utilities
and services to the extent that they are furnished to American under the Base
Lease, except that American assumes no responsibility for interruption of such
services for any reason whatsoever, and Sublessee agrees to pay American for
any extraordinary electrical, gas, water consumption or other utility or service
charges related to the Demised Premises at the rate payable by American for
that utility. To the extent that these utilities and services are not included in the
Base Lease, the Sublessee is responsible for these items. Sublessee shall pay
American for its pro rata share of any utilities, custodial services, facility
maintenance costs, and/or other services provided by American for the Demised
Premises and/or such utilities and/or services that are common to the Base
Lease Premises.
7. Acceptance of Demised Premises. Sublessee has inspected the Demised
Premises and, if applicable, personal property and/or equipment and accepts the
Demised Premises in its AS -IS condition and acknowledges that American has
made no representations as to the condition thereof. Further, American makes
no warranties, guarantees or representations of any kind either express or
implied, arising by law or otherwise that shall survive the use of the Demised
Premises by Sublessee pursuant to this Sublease, including, but without limiting
the generality of the foregoing, any warranty, guarantee or representation with
respect to the merchantability, fitness for intended use and condition of such
Demised Premises. Sublessee hereby waives and American expressly disclaims
all warranties, all guarantees or representations, express or implied, arising by
law or otherwise, including, but without limiting the generality of the foregoing,
any implied warranty of merchantability, any implied warranty arising from the
course of performance, course of dealing or usage, or any implied warranty of
fitness for a particular purpose. In no event shall American's liability of any kind
under this Sublease include any special, incidental or consequential damages,
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including, without limitation, loss of profits, even if American shall have been
advised of the possibility of such potential loss or damage.
8. No Cost to American. Sublessee will be wholly responsible for all costs
associated with preparing the Demised Premises for Sublessee's use of the
same and for moving Sublessee's personnel and equipment into the Demised
Premises. These costs include, but are not limited to, moving costs, the de -
installation and installation of equipment and utilities, facilities modifications and
renovations (including signage removal and installation), permitting, equipment
rental charges, operational damages (whether revenue or cost based), or any
other cost or effort necessary to make the Demised Premises useable to the
Sublessee. Similarly, and if applicable, Sublessee will pay for the de -installation,
relocation, reinstallation and/or demolition of American's equipment currently
located in the Demised Premises that must be relocated to accommodate
Sublessee.
9. Repairs and Maintenance. The Sublessee, at its sole cost and expense, shall
keep the Demised Premises in a clean, neat and orderly condition at all times.
Further, Sublessee shall, at its own expense, make all necessary interior, non-
structural repairs to the Demised Premises so as to maintain the Demised
Premises in good order and condition, reasonable wear and tear and damage by
fire or other casualty excepted. In the event that Sublessee fails to make any
required repair within ten (10) days after receiving written notice from American
that such repair is needed, or in the event that Sublessee fails within ten (10)
days to commence and thereafter diligently complete such repair, American,
without being obligated to do so, may make such repairs and Sublessee shall
thereafter promptly reimburse American for all expenses incurred on account
thereof. In the event the Demised Premises are shared with American and/or
other subtenants, then Sublessee shall pay its pro rata share of the costs of
repairs and/or maintenance.
10. Environmental.
A. Definitions.
"Environment" means surface waters, groundwater, drinking water supply, land
surface, or subsurface strata, or ambient air.
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"Environmental Law" means any federal, state, airport or local law, statute,
ordinance, code, rule, regulation, license, permit, authorization, decision, order,
injunction, decree, applicable airport tenant guide, or rule of common law
(including without limitation, any regulations or directives of the airport authority,
and any specifications issued by the Air Transport Association ("ATA"), and any
judicial or agency interpretation of any of the foregoing, whether now existing or
hereafter enacted or promulgated, as may be amended from time to time, that
pertains to health, safety, any Hazardous Material, or the Environment, and shall
include, without limitation, the Resource Conservation and Recovery Act, as
amended and codified at 42 U.S.C. §§ 6901 et seq.; 40 C.F.R. Part 195
(Transportation of Hazardous Liquids by Pipeline); the Comprehensive
Environmental Response, Compensation and Liability Act, as amended and
codified at 42 U.S.0 §§ 9601 et seq. ("CERCLA"), including without limitation, as
amended by the Superrund Amendments and Reauthorization Act of 1984
("SARA" ); the Hazardous Materials Transportation Act, as amended and codified
at 49 U.S.C. §§ 1801 et seq.; the Federal Water Pollution Control Act or Clean
Water Act, as amended and codified at 33 U.S.0 §§ 1251 et seq.; the Oil
Pollution Act, as amended and codified at 33 U.S.C. §§ 2701 et seq.; the Clean
Air Act, as amended and codified at 42 U.S.C. §§ 7401 et seq.; the Toxic
Substances Control Act, as amended and codified at 15 U.S.C. §§ 2601 et seq.;
and the Safe Drinking Water Act, as amended and codified at 42 U.S.C. §§ 300f
et seq.).
"Hazardous Material" means any toxic, radioactive, or hazardous substance,
material, waste, pollutant, emission, or contaminant, including without limitation,
(a) asbestos, (b) urea formaldehyde, (c) the group of organic compounds known
as polychlorinated biphenyls (PCBs), (d) any petroleum product and byproduct
including, without limitation, to gasoline, aviation fuel, motor oil, fuel oil, crude oil,
and the various constituents of such products, and (e) pesticides, fertilizers, and
other agricultural chemicals.
"Release" means any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, or disposing into the
Environment and "threat of Release" shall mean a substantial likelihood of a
Release that requires action to prevent or mitigate damage to the Environment
that may result from such Release.
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B. Compliance with Laws.
1. In performing under this Sublease on and about the Demised Premises,
Sublessee agrees to comply with all applicable requirements regarding
Hazardous Material and environmental conditions set forth in American's
Base Lease and shall not cause American to be in violation of any
requirements contained therein.
2. Sublessee shall strictly observe and obey, and cause its employees,
agents, contractors, subcontractors, and licensees to observe and obey,
all Environmental Laws.
3. Without limiting the generality of the foregoing, Sublessee shall timely
perform the following tasks as they may relate to or result from
Sublessee's use of the Demised Premises and performance under this
Sublease:
a. obtaining and complying with all applicable environmental
and safety registrations, permits, authorizations, and
licenses;
b. preparing, implementing, enforcing, and keeping current all
plans or programs applicable to the storage or distribution of
aviation jet fuel or other Hazardous Material under this
Sublease, as provided in any Environmental Law, including
without limitation, Spill Prevention, Control and
Countermeasure Plans ("SPCCs") and Facility Response
Plans ("FRPs") specified in regulations promulgated under
the Clean Water Act, or similar state or local Environmental
Laws;
C. conducting all necessary or appropriate testing, monitoring,
inspection, or related activities applicable to the storage or
distribution of aviation jet fuel or other Hazardous Material,
as provided for in any Environmental Law;
d. submitting promptly to appropriate governmental authorities
(with a copy submitted simultaneously to American), any
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notices or reports applicable to the storage or distribution of
aviation jet fuel or other Hazardous Material under this
Sublease, as provided in any Environmental Law, including,
without limitation, SARA Tier I and Tier II reports; and
e. ensuring that all facilities, equipment, piping, hydrant pits,
containers, tanks, and vehicles used by Sublessee to store,
distribute, or supply fuel in connection with the Demised
Premises are constructed and maintained in a safe, efficient,
and orderly manner, and in accordance with all applicable
Environmental Laws, without regard to the ownership of
such facilities, equipment, piping, hydrant pits, containers,
tanks, or vehicles.
Nothing contained herein shall diminish the unconditional obligation of
Sublessee to investigate, prevent, remove, remediate and/or dispose of all
Hazardous Materials that may be Released or threatened to be Released
at or about the Demised Premises in connection with or arising from
Sublessee's activities under this Sublease.
C. Notice. Releases or threatened Releases of any Hazardous Material into the
Environment resulting from or related to the Demised Premises or relating to
Sublessee's activities under this Sublease including, without limitation, any
Releases or threatened Releases of Hazardous Material from the facilities,
equipment, piping, hydrant pits, containers, tanks, or vehicles used to store,
distribute, or supply fuel, shall be reported immediately by Sublessee to
American and all necessary or appropriate governmental authorities with
jurisdiction under applicable Environmental Laws.
D. Hazardous Material Release. Upon discovery of a Release or threatened
Release of a Hazardous Material into the Environment at or from the
Demised Premises or related to or arising from Sublessee's performance or
activities under this Sublease including, without limitation, use of the Demised
Premises, Sublessee shall immediately initiate all necessary or appropriate
procedures to report, investigate, mitigate, and remediate the same, to a
condition existing as of the effective date of the Sublease, and immediately
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report the same to American. All such actions shall conform with all
applicable Environmental Laws. Sublessee shall be solely responsible for
undertaking and completing the investigation and/or prevention of any such
Releases or threatened Releases, as well as the complete removal,
remediation, and proper disposal of any actual Release, to the satisfaction of
American and all government authorities with jurisdiction over such Releases
or threatened Releases. To the extent American or governmental authorities
may determine that remediation is required, Sublessee shall coordinate such
remediation with American's operations and ensure that such remediation
does not unduly interfere with American's operations. Sublessee also shall
ensure that upon the conclusion of such remediation, the affected property
has been returned to its condition prior to such Releases or threatened
Releases. Sublessee shall sign all waste manifests related to the
remediation and/or disposal of any Hazardous Material that has been
released in relation to, or as a result of, Sublessee's performance hereunder,
as the generator thereof. Sublessee shall promptly submit to American
copies of all remediation and/or disposal work plans, reports, sampling data,
and analytical results, manifests and correspondence with governmental
authorities in connection with Sublessee's activities as described in this
paragraph.
E. Audits. American reserves the right, but shall have no obligation, to conduct
multi -media environmental audits, including the taking of samples, from time
to time of Sublessee's operations, the Demised Premises, or of facilities,
equipment, piping, hydrant pits, containers, tanks, or vehicles used to store,
distribute, or supply fuel under this Sublease. Nothing in this provision shall
be deemed or construed to diminish or extinguish any of Sublessee's
environmental obligations contained in this Sublease.
F. Environmental Indemnity. Sublessee hereby presently, unconditionally,
irrevocably, and absolutely agrees to pay, indemnify, defend with counsel
acceptable to American, release and save harmless American, its members,
officers, employees, agents, successors, and assigns (the "Indemnified
Parties") for, from, and against any and all damages, losses, liabilities,
obligations, claims, litigation, demands, defenses, judgments, suits,
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proceedings, fines, penalties, costs, disbursements, and expenses (including,
without limitation, attorneys' and experts' fees and expenses, loss of use,
cleanup costs, waste disposal costs and all costs, expenses, penalties, and
fines within the meaning of CERCLA), of any kind or nature whatsoever
which may at any time be imposed upon, incurred by or asserted or awarded
against any of the Indemnified Parties, whether known or unknown, that
arises from any violation or alleged violation of Environmental Laws by
Sublessee, environmental problem caused by Sublessee, or other
environmental matter described herein or that in any way relates to or arises
from Sublessee's performance or activities related to the Sublease or any
operations on the Demised Premises, including, without limitation, Releases
or threatened Releases from the facilities, equipment, piping, hydrant pits,
containers, tanks, or vehicles used to store, distribute or supply fuel.
Sublessee does further agree and covenant that none of the Indemnified
Parties shall assume any liability or obligation for loss, damage, fines,
penalties, claims, or duty to investigate, remove, remediate, or dispose of
Hazardous Material in any way related to or resulting from Sublessee's
performance under this Sublease. Notwithstanding the foregoing,
Sublessee's obligation to defend and indemnify American pursuant to this
Section shall not apply to any liability, loss, or claim caused by actions taken
by or on behalf of American that are caused solely by the negligence or
misconduct of American. This Section shall survive the expiration or earlier
termination of this Sublease, as well as the exercise of any remedy by
American under this Sublease. Sublessee shall give American prompt
written notice of any claims threatened or made or suit instituted against it
that could result in a claim for defense and indemnity hereunder.
G. Environmental Condition on Termination. The Demised Premises shall be
returned to American in the same environmental condition that existed upon
commencement of the Sublease and free of any Hazardous Material
introduced after control of the Demised Premises was transferred to
Sublessee.
11. Landlord -Mandated Maintenance and Improvements. In the event the
Landlord requires the maintenance or replacement of certain portions of the
leasehold (such as, but not limited to, carpet, walls, doors, and ceilings) in the
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Base Lease, Sublessee shall be responsible for any such maintenance or
replacements in the areas subleased to it, and, if applicable, for its pro-rata
share of any such work that is required throughout any part of the Base Lease
Premises. In the event the Demised Premises is shared with American and/or
other subtenants, then Sublessee shall pay its pro rata share of these costs.
12. Taxes. Sublessee agrees to pay, before they become delinquent, all taxes (both
general and special), assessments or governmental charges of any kind
whatsoever (the "Taxes"), levied or assessed against the Demised Premises, or
any property of Sublessee located thereon or any business conducted by
Sublessee thereon. Sublessee agrees to use its best efforts to cause the
Demised Premises, its personal property and business operations to be
assessed and taxed separately from the Demised Premises. In the event that
American shall be assessed for Taxes on the Demised Premises or any or all of
Sublessee's leasehold improvements, equipment, furniture, fixtures, personal
property or Sublessee's business operations, Sublessee shall pay to American
the amount of the Taxes within ten (10) days after delivery to Sublessee by
American of a written statement setting forth the amount of the Taxes payable by
Sublessee. On demand by American, Sublessee shall furnish American with
satisfactory evidence that the payments required to be made by Sublessee
hereunder have been remitted to the appropriate entity or agency.
13. Alterations. Sublessee may not make any alteration, addition or improvement
to the Demised Premises or other equipment associated thereto, including, but
not limited to, signage, without the prior written approval of American and the
Landlord. Unless American elects otherwise, all alterations, additions or
improvements to the Demised Premises shall become the property of American
upon the expiration of this Sublease or any extension thereof. In the event
American so elects, such alterations, additions or improvements shall be
removed by Sublessee at its own cost and expense, prior to expiration of the
term of this Sublease, and Sublessee shall repair any damage to the Demised
Premises caused by such removal. Further, if American so elects, Sublessee
shall re -install or replace any fixtures and/or equipment removed or relocated by
Sublessee during the term of this Sublease.
14. Right of Entry. American shall have the right to enter the Demised Premises for
any reasonable purpose, including to gain access to and egress from those
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portions of the Base Lease Premises or the Building not leased to Sublessee
hereunder and to perform such functions as may be necessary or convenient for
the maintenance and operation thereof. In the event the Demised Premises
and/or personal property are used by others, then American, Sublessee, and all
other subtenants of the Demised Premises and/or personal shall have
reasonable rights of ingress and egress at all times to the Demised Premises
and shall use reasonable effort not to interfere with each others operations.
15. Compliance with Law. Sublessee will comply with all applicable statutes,
ordinances, rules, regulations, orders and directives of any governmental
authority applicable to the Demised Premises or to American's or Sublessee's
use or occupancy thereof and perform, at its own expense, all obligations
imposed thereby. Sublessee shall pay all costs, fines, and assessments that it
causes or which are assessed due to its actions, insofar as those actions are
contrary to a law, ordinance, or regulation and are not mandated by this
Sublease.
Sublessee agrees to fully implement all procedures and comply with all
regulations of the Airport's security program, including, but not limited to, the
procedures and regulations of the airport that regulate access to and from the air
operations area, to the extent such procedures and regulations relate to the
facilities provided hereunder. Sublessee will instruct its employees, and any
other representatives of Sublessee, including those under contract, as to the
security procedures to be followed and responsibilities required to be performed
by American with respect to the facilities.
American may, from time to time, evaluate Sublessee's compliance with the
airport's security program. In the event Sublessee shall refuse, neglect or fail to
implement, perform, or observe any of the security procedures on its part to be
performed, observed and kept with respect to the facilities, American shall have
the right to immediately take any corrective measures deemed necessary.
Sublessee shall indemnify and hold harmless American, its directors, officers,
agents, and employees, from and against any and all costs, claims, judgements
and expenses (including attorneys' fees) incurred by American due to any
investigation commenced or penalties or fines imposed by the Federal Aviation
Administration, the Airport or any other governmental agency having jurisdiction
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with respect to the Air Carriers Standard Security Program and/or Airport's
security program arising out of or in connection with Sublessee's use and
occupancy of the Demised Premises.
16. Casualty. In the event that the Demised Premises or any portion thereof should
be damaged or destroyed by fire or other casualty, American, at its option, may
either terminate this Sublease or diligently proceed to cause the repair of the
damage to the Demised Premises. If American elects to repair or rebuild, and if
the Demised Premises are so damaged that Sublessee is unable to occupy or
use the Demised Premises or a portion thereof during such repair or
reconstruction, then the rental hereunder shall be appropriately abated until the
Demised Premises can be occupied or used by Sublessee. American shall in no
event be required to rebuild, repair or replace any improvements, fixtures or
personal property of Sublessee. Notwithstanding the foregoing, in the event the
Building or the Demised Premises or the Base Lease Premises are damaged or
destroyed through the negligence or willful misconduct of Sublessee, its officers,
directors, employees, agents, customers, concessionaires, vendors, contractors
or invitees, then Sublessee shall pay to American upon demand, the cost of
repairing any such damage.
17. Release and Indemnity.
A. Release. Sublessee hereby agrees that American shall not be liable for any
loss or any damage to any property (including the property of Sublessee, its
officers, directors, employees, agents, customers, concessionaires, vendors,
contractors or invitees) or the death or injury of any persons (including
Sublessee, its officers, directors, employees, agents, customers,
concessionaires, vendors, contractors or invitees) occasioned by theft, fire,
acts of God, public enemy, injunction, riot, strike, insurrection, war, or any
other action of any governmental body or authority, by other tenants of the
Base Lease Premises or the Building or any other matter beyond the control
of American, or for any injury or damage or inconvenience which may arise
through repair or alteration of any part of the Demised Premises or the Base
Lease Premises or the Building, or failure to make repairs, or for any cause
whatsoever, except the negligence or willful misconduct of American.
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B. Indemnity. Sublessee hereby releases and will defend, indemnify and hold
harmless American and Landlord, their respective officers, directors,
employees, agents, concessionaires, vendors and contractors (the
"Indemnified Parties") from and against any and all liability, claims, penalties,
fines, causes of action, suits, liens, losses, loss of use, damages, costs and
expenses of any kind (including legal fees and litigation costs) that may be
suffered by, accrued against, charged to or recoverable from the Indemnified
Parties by reason of (i) any occurrence in, upon, at, or by the Demised
Premises, however caused, including, without limitation, occurrences caused,
in whole or in part, by the negligence or misconduct of Sublessee, its officers,
directors, employees, agents, customers, concessionaires, vendors,
contractors or invitees; or (ii) any occupancy, use, or misuse of the Demised
Premises, or the areas surrounding the Demised Premises or the service
areas, parking areas, pedestrian areas, pedestrian walks or driveways in or
around the Demised Premises, by Sublessee, its officers, directors,
employees, agents, customers, concessionaires, vendors, contractors or
invitees; (iii) any occurrence elsewhere in the Base Lease Premises or the
Building occasioned in whole or in part by the act or omission of Sublessee;
or (iv) any occurrence occasioned by the violation of any law, regulation or
ordinance by Sublessee or its officers, directors, employees, agents,
customers, concessionaires, vendors, contractors or invitees. The foregoing
indemnification shall not apply to the extent the applicable liability arises as a
result of the negligence or misconduct of American.
18. Insurance.
A. Coverage. During the term of this Sublease, Sublessee, at its own cost and
expense, shall maintain with insurers acceptable to American, the following
coverage: (i) Comprehensive Airline Liability insurance, including, but without
limitation, Comprehensive General Liability, Contractual Liability and
Automobile Liability coverages in an amount not less than $200,000,000 for
bodily injury and property damage combined single limit, and (ii) all risk
property insurance covering loss of or damage to property of the Sublessee.
Sublessee shall also maintain Worker's Compensation and Employer's
Liability coverage as may be required by law.
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B. Form and Certificates. The liability policies shall: (i) name American and
Landlord as additional insureds; (ii) specifically insure the liability assumed by
Sublessee hereunder; (iii) be primary without right of contribution from any
insurance carried by American or Landlord hereunder; and (iv) provide for
thirty (30) days written notice to American and Landlord prior to cancellation
or material change. Certificates evidencing the above coverages and special
endorsements shall be provided to American and Landlord on or before the
date Sublessee takes possession of the Demised Premises. Send forms to:
American Airlines
Insurance Compliance
P. O. Box 12010 -AM
Hemet, CA 92546-8010
C. Waiver of Subrogation. Sublessee, on behalf of itself and its insurers,
hereby waives any claim or right of recovery from American or Landlord, their
officers, directors, employees, agents, concessionaires and contractors, for
loss or damage to Sublessee or its property or the property of others under
Sublessee's control, to the extent that such loss is covered by valid insurance
policies. Sublessee shall provide notice of this waiver of subrogation to its
insurers.
19. Liens. Sublessee hereby agrees to keep the Demised Premises, and the
improvements thereon, free and clear of mechanics' liens and other liens for
taxes, labor, services, equipment, materials, and/or any other type of lien. In the
event such a lien is filed or recorded, Sublessee shall take all action required to
remove the same within fifteen (15) days of the filing or recordation. In the event
that Sublessee fails to take such action to remove the lien, then American may
do so and all costs associated therewith shall be due to American from
Sublessee upon demand.
20. No Bailment. During the term of this Sublease, an employee or agent of
Sublessee shall at all times be in charge of and in custody and control of any
aircraft or equipment of Sublessee on or about the Demised Premises and
American shall at no time be considered a bailee of or in custody or control of
such aircraft or equipment. American, its officers, directors, employees, agents
and independent contractors shall not be liable to Sublessee for damage
sustained by or claims lodged against Sublessee in connection with or resulting
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from the use of the Demised Premises or from the rendering of services or the
furnishing of goods pursuant to this Sublease unless such damage was
sustained by or such claims were lodged due to the willful misconduct of
American's officers, directors, employees, agents or independent contractors.
21. Condemnation.
A. Total Taking. If during the term of this Sublease or any extension or renewal
hereof, all or a substantial part of the Demised Premises should be taken for
any public or quasi -public use under any governmental law, ordinance or
regulation or by right of eminent domain, or should be sold to the condemning
authority under threat of condemnation, this Sublease shall terminate and the
rent hereunder shall be abated during the unexpired portion of this Sublease,
effective from the date of taking of the Demised Premises by the condemning
authority.
B. Partial Taking. If less than a substantial part of the Demised Premises is
taken for public or quasi -public use under any governmental law, ordinance
or regulation, or by right of eminent domain, or is sold to the condemning
authority under threat of condemnation, American, at its option, may by
written notice terminate this Sublease or shall forthwith at its sole expense
restore the Demised Premises (other than leasehold improvements made by
Sublessee), situated on the Demised Premises in order to make the same
reasonably tenantable and suitable for the uses for which the Demised
Premises are subleased. The rent payable hereunder during the unexpired
portion of this Sublease shall be adjusted equitably.
C. Awards. American and Sublessee shall be entitled to receive and retain
such separate awards and portions of lump sum awards as may be allocated
to their respective interests in any condemnation proceedings. The
termination of this Sublease shall not affect the rights of the respective
parties to such awards.
22. Defaults. The occurrence of any of the following shall constitute an "Event of
Default" by Sublessee under this Sublease:
A. Sublessee fails to pay any sum as required hereunder and such failure
continues for five (5) days;
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B. Sublessee abandons or vacates the Demised Premises;
C. Sublessee fails to observe and perform any other provision of this
Sublease, and such failure continues for thirty (30) days after written
notice thereof by American to Sublessee; provided however, that if the
default cannot reasonably be cured within said 30-day period, Sublessee
shall not be deemed to be in default if Sublessee timely commences to
cure the default and thereafter diligently prosecute the same to
completion;
D. Sublessee (i) fails to pay its bills when due without just cause; or (ii) takes
any steps leading to its cessation as a going concern or ceases or
suspends operations for reasons other than a strike; or (iii) becomes
insolvent or makes transfers in fraud of creditors or makes an assignment
for the benefit of creditors; or (iv) files a petition for protection under any
state or federal bankruptcy act or a trustee or receiver is appointed for all
or substantially all of Sublessee's assets.
23. Remedies Upon Default. Upon the occurrence of an Event of Default
hereunder, American may take any one or more of the following actions:
A. Maintain this Sublease in full force and effect and recover any and all rent
and other monetary charges as they become due, without terminating
Sublessee's right to possession, regardless of whether Sublessee shall
have abandoned the Demised Premises. If American elects not to
terminate this Sublease, American shall have the right to attempt to relet
the Premises on behalf of Sublessee upon such conditions and for such a
term and to do all acts necessary to maintain or preserve the Demised
Premises as American deems reasonable and necessary, including the
removal of all persons and property from the Demised Premises, without
being deemed to have elected to terminate this Sublease. Any property
so removed may be disposed of or stored in a public warehouse or
elsewhere, at American's election, at the cost of and for the account of
Sublessee. Notwithstanding that American fails to elect to terminate this
Sublease initially, American at any time thereafter may elect to terminate
this Sublease as a result of such previous and then existing default of
Sublease;
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B. Terminate this Sublease by written notice to Sublessee, in which event this
Sublease shall be ended as to Sublessee and all persons holding under
Sublessee, and all of Sublessee's rights shall be forfeited and lapsed, as fully
as if this Sublease had expired by lapse of time. In such event, Sublessee
shall be required to vacate and halt the use of the Demised Premises
immediately and surrender same to American. If Sublessee fails to surrender
the Demised Premises immediately to American, American, without prejudice
to any other remedy, may enter upon and take possession of the Demised
Premises and expel or remove Sublessee and any other person who may be
occupying or using the Demised Premises or any part thereof, without being
liable for prosecution or any other claim of damages. In the event of
termination in accordance with this provision, the rental or any other sums
payable by Sublessee pursuant to this Sublease that have accrued
hereunder but are unpaid shall be immediately due and payable by
Sublessee to American. In addition, Sublessee agrees to pay to American
upon demand the amount of all loss and damages which American may
suffer by reason of such termination, whether through inability to relet the
premises on satisfactory terms or otherwise, including, without limitation, (i)
all expenses incurred by American, including court costs and attorney's fees,
in recovering possession of the Demised Premises or enforcing American's
rights under this Sublease; (ii) all costs and charges for care of the Demised
Premises while vacant or unused; (iii) all costs of restoring the Demised
Premises to a good condition; (iv) all costs associated with American's efforts
to relet the Demised Premises; and (v) the difference between the total rental
that would have accrued to American under the Sublease for the remainder
of the term had the Sublease not been terminated and the total fair market
rental value of the Demised Premises for the remainder of the term of the
Sublease. The failure of American to relet the Demised Premises or any part
or parts thereof shall not release or effect Sublessee's liability for damages
hereunder;
C. Cure the default on the behalf of the Sublessee, in which event the
Sublessee shall, upon demand by American, pay all sums expended by
American in accomplishing such cure;
D. Exercise any right available to American in law or in equity.
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24, Cumulative Rights. American's rights and remedies hereunder shall be
cumulative and shall not be exclusive of one another, and American shall have
the right to pursue any one or more of them. American's acceptance of any rent
or other payments due hereunder or American's failure to take any action on
account of a default if such default persists or is repeated, shall not be deemed a
waiver of any default. American's consent to any act by Sublessee requiring
American's consent or approval shall not be deemed to waive or render
unnecessary American's consent or approval to any subsequent or similar acts
by Sublessee.
25. Surrender of Premises/Holding Over. At the expiration or earlier termination
of this Sublease, Sublessee shall surrender the Demised Premises to American
in good condition, broom clean, reasonable wear and tear excepted. Should
Sublessee remain in possession of the Demised Premises, or any portion
thereof, after the termination of this Sublease (whether by expiration of the term
of this Sublease or otherwise), without the extension or renewal of the Sublease,
Sublessee shall become a tenant from month to month and shall be liable to pay
monthly rental at double the rate provided hereunder, or at a lesser rate as
determined by American, as long as Sublessee remains in the Demised
Premises. Such tenancy and use shall be subject to all terms and conditions of
this Sublease.
26. Assignment and Sublease. Sublessee shall not assign this Sublease or any
right hereunder or sublet the Demised Premises during the term of this
Sublease, without the prior written consent of American. American's acceptance
of rent from any person other than Sublessee shall not be deemed to be a
waiver of this provision. Consent to one assignment or subletting shall not be
deemed to be consent to any subsequent assignment or subletting.
27. Accord and Satisfaction. No payment or receipt by American of a lesser
amount than the rent or other charges herein stipulated shall be deemed to be
other than on account of the rent or such charges. Further, no endorsement or
statement on any check or any letter accompanying any check shall be deemed
to be an accord and satisfaction. American may accept such check or payment
without prejudice to American's right to recover the balance of such rent or other
charges or pursue any other remedy provided in this Sublease.
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28. Attorney's Fees. In the event that Sublessee defaults in the performance of any
of the terms, conditions or agreements contained in this Sublease and American
places the enforcement of all or part of this Sublease in the hands of an attorney
for enforcement, including the filing of a suit upon the same, Sublessee agrees
to pay all of American's reasonable attorney's fees and costs.
29. Force Maieure. Neither party shall be deemed to be in breach of this Sublease
by reason of a failure to perform any of its obligations hereunder to the extent
that such failure is caused by strike or labor troubles, unavailability of materials
or utilities, riots, rebellion, insurrection, invasion, war, action or interference of
governmental authorities, acts of God, or any other cause whether similar or
dissimilar to the foregoing which is reasonably beyond the control of the parties;
provided, however, this clause shall not apply to Sublessee's obligation to pay
rent or other sums due hereunder, such obligation being absolute and
unconditional.
30. Governing Law. This sublease shall be governed by and construed under the
laws of the State of Colorado.
31. Entire Aureement/Amendment. This Sublease constitutes the complete
agreement of the parties with respect to the subject matter hereof and
supersedes all previous agreements, representations and understandings
concerning the same, whether written or oral. The provisions of the Sublease
may be modified, amended or waived only by a written instrument, executed by
American and Sublessee.
32. Waiver. A waiver by either party to this Sublease of any breach of the
covenants, conditions or agreements contained herein shall not be construed as
a waiver of any succeeding breach of the same or other covenants, conditions or
agreements.
33. Severability. If any provision or term of this Sublease shall be determined to be
illegal, invalid or unenforceable, the remainder of this Sublease shall not be
affected and shall remain valid and enforceable to the fullest extent permitted by
law.
34. Approval by Landlord. This Sublease is conditioned upon written consent
being obtained from the Landlord. In the event the Landlord does not give its
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consent, either of the undersigned parties may, at its option, rescind its signature
and this Sublease shall thereafter be of no force or effect.
35. Notices. All notices, requests and other communications under Sublease shall
be in writing (including a writing delivered by facsimile transmission) and shall be
deemed to have been duly given if delivered personally, or sent by either
certified or registered mail, return receipt requested, postage prepaid, by
overnight courier guaranteeing next day delivery, by US Mail, first-class, postage
prepaid, or by facsimile machine (with facsimile or machine confirmation by the
sender) addressed as follows (or to other address, including facsimile number,
as shall have been designated by the recipient in writing):
When to American:
Attn: Vice President -
Corporate Real Estate, MD 5317
American Airlines, Inc.
P. O. Box 619616
DFW Airport, TX 75261-9616
Overnight Delivery Address:
Attn: Vice President -
Corporate Real Estate, MD 5317
American Airlines, Inc.
4333 Amon Carter Blvd., MD 5317
Fort Worth, TX 76155
Tele. Number: 817-931-4735
Fax Number - 817-967-3111
When to Sublessee:
US Airways, Inc.
Attn: Vice President - Corporate Real
Estate
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85034
Tele. Number 480-693-5773
Fax Number 480-693-2859
Either party may, from time to time, change its address by written notice to the
other party. Notices hereunder shall be deemed effective upon the date of
delivery when delivered by hand or overnight courier, three days after deposit in
the United States mail, or when receipt is confirmed as provided above (if a
facsimile machine is used).
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35. Quiet Enioyment. Upon Sublessee's payment of all sums due hereunder and
provided that Sublessee is not otherwise in default hereunder, Sublessee shall
peaceably and quietly hold, occupy and enjoy the Demised Premises for the
term of this Sublease without hindrance, ejection or interruption by American, or
persons lawfully claiming through American.
36. Binding Effect. Subject to prohibitions against assignment, this Sublease shall
be binding upon the parties, their personal representatives, successors and
assigns.
37. Counterparts. This Sublease may be executed in multiple counterparts, each of
which shall be deemed an original for all purposes and all of which shall be
deemed collectively to be one Sublease.
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...
WITNESS the signatures of the parties as of the
Name
Title:
AMERICAN AIRLINES, INC.:
No► G.. o
i
VICE PRESIDENT
Agreed andlord this � day of , 2007.
By:
Title: C Q-gv.o \
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Attachment A
DEMISED PREMISES
The Sublessee's Demised Premises shall consist of the following:
Sublessee's space consists of:
Three ticket counter positions, one bag well, and the area between these
fixtures and the backwall, plus 30% share of American's curbside areas.
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I
Attachment B
DEMISED PREMISES RENT
Sublessee shall pay American rent pursuant to Section 5 of the Sublease as follows:
A. From December 1, 2007 through November 30, 2008, the monthly rent for the
Demised Premises is one thousand six hundred thirty-two dollars and sixty-one
cents ($1,632.61).
In addition to the rents set forth above, Sublessee shall pay any and all other rents,
charges, and fees pursuant to Section 5.
Sublessee shall be responsible for any subleasing fee and/or other assessment by the
Landlord (or their agents) relating to the sublease of the Demised Premises.
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Attachment C
DRAWINGS OF DEMISED SPACE
KEV
