SW1240701_Lease Agreement_20240913

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REGIONAL AIRPORT I
GROUND LEASE AND AGREEMENT
BETWEEN
GREATER ASHEVILLE REGIONAL AIRPORT AUTHORITY
AND
SHEETZ, INC.
Lease Effective Date: August 11, 2023

TABLE OF CONTENTS
ARTICLE 1 - DEFINITIONS 3
ARTICLE 2 - TERM 8
ARTICLE 3 - PREMISES 11
ARTICLE 4 - PERMITTED USES 13
ARTICLE 5 - RENT 15
ARTICLE 6 - RECORDS 19
ARTICLE 7 - PERFORMANCE AND OPERATIONAL STANDARDS 21
ARTICLE 8 - INSURANCE 22
ARTICLE 9 - TERMINATION AND SURRENDER 23
ARTICLE 10 - FACILITY ASSESSMENT 24
ARTICLE 11 - ENVIRONMENTAL 25
ARTICLE 12 — MAINTENANCE AND REPAIRS 28
ARTICLE 13 - COMPLIANCE WITH LAWS 29
ARTICLE 14 - CONSTRUCTION OF LESSEE IMPROVEMENTS 30
ARTICLE 15 - PORTABLE STORAGE CONTAINERS/STRUCTURES 34
ARTICLE 16 - COOPERATION WITH AUTHORITY DEVELOPMENT 34
ARTICLE 17 - CONDITIONS OF AUTHORITY DEVELOPMENT 34
ARTICLE 18 - INDEMNIFICATION 36
ARTICLE 19 - INSPECTION 39
ARTICLE 20 - IMPAIRMENT OF AUTHORITY'S TITLE 39
ARTICLE 21 - DAMAGE OR DESTRUCTION 40
ARTICLE 22 - CONDEMNATION 41
ARTICLE 23 - ASSIGNMENT, SUBLEASE, MORTGAGE AND TRANSFER 41
ARTICLE 24 - DEFAULT BY LESSEE 43
ARTICLE 25 — DEFAULT BY THE AUTHORITY 47
ARTICLE 26 - NOTICES 47
ARTICLE 27 - QUIET ENJOYMENT 49
ARTICLE 28 - ESTOPPEL 49
ARTICLE 29 - APPROVALS AND CONSENTS 50
ARTICLE 30 - ADJOINING EXCAVATION 50
ARTICLE 31 - AUTHORITY NOT LIABLE 50
ARTICLE 32 - UNAVOIDABLE DELAY 50
ARTICLE 33 — GOVERNMENT REQUIREMENTS 51
ARTICLE 34 - GENERAL PROVISIONS 55
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GROUND LEASE AND AGREEMENT
This Ground Lease and Agreement ("Lease") is made and entered into by and
between the Greater Asheville Regional Airport Authority ("Authority"), created pursuant
to Session Law 2012-121 by the General Assembly of North Carolina on June 28, 2012,
and owner and operator of the Asheville Regional Airport ("Airport"), and Sheetz, Inc.,
LLC ("Lessee"), a Pennsylvania corporation, authorized to do business in the State of
North Carolina. Authority and Lessee are referred to herein as the Parties and individually
as a Party. This Lease is effective when signed by Authority ("Lease Effective Date").
RECITALS
A. WHEREAS, the Authority owns approximately three (3) acres of real
property located in Fletcher, North Carolina, 28732 ("Premises") and as graphically
depicted on Exhibit A attached hereto and made a part hereof.
B. WHEREAS, the Lessee desires to lease the Premises for the development
and construction of a convenience store building with drive-thru service lane, gasoline
pumps, underground storage tanks (collectively, "Improvements") as well as relocate the
Authority's vehicle parking spaces which shall meet or exceed what currently exists on
the Premises ("Relocated Parking"); and,
C. WHEREAS, the Authority desires additional automobile parking ("Additional
Parking") to be included in the Relocated Parking project completed by Lessee, and the
Authority agrees to reimburse Lessee for the actual costs pre-approved by the Authority
for such Additional Parking; and,
D. WHEREAS, the Lessee desires to design, develop, finance, and construct
the (a) Improvements and Relocated Parking, at Lessee's sole cost and expense, and (b)
Additional Parking, at the Authority's sole cost and expense, and (c) operate and maintain
the Improvements in accordance with the terms of this Lease.
NOW, THEREFORE, in consideration of the mutual agreements set forth herein,
it is understood and agreed by the Parties hereto as follows:
AGREEMENT
ARTICLE 1 - DEFINITIONS
Definitions. As used in this Lease, the following words and terms have the
following meanings:
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1.1. A/E means a licensed contractor, engineer, or architect, and who is licensed
to do business in the State of North Carolina.
1.2. ACDBE means the Airport Concession Disadvantaged Business
Enterprise.
1.3. Additional Parking means the area depicted, highlighted in orange, on
Exhibit B, as the additional vehicle parking area that will be constructed by the Lessee,
at the Authority's sole cost and expense, for the Authority's use.
1.4. Additional Payments mean all costs and expenses relating to the Premises
and Lessee's use and occupation thereof, which may arise or become due during the
Term, including:
a. Real estate taxes and assessments relating exclusively to the Premises.
b. Insurance premiums in connection with insurance policies covering the
Premises and/or Lessee's use and operation thereof which are required to
be maintained by Lessee under this Lease or otherwise obtained by Lessee
in its discretion.
c. All utility and/or municipal charges or assessments relating exclusively to
the Premises.
d. All costs associated with the maintenance, repair or replacement of any of
Lessee's Improvements (subject to Article 31).
e. Any costs incurred or owing with respect to the Premises under any required
development, project, FAA or other agreements required to be entered into
by Lessee pursuant to this Lease.
1.5. Adjacent Authority Property shall have the meaning ascribed to it in Article
3.1.1.
1.6. Authority is the Greater Asheville Regional Airport Authority.
1.7. Casualty means substantial damage or destruction of structural
components of the Lessee Improvements on the Premises as described in Article 21.
1.8. Condition Assessment Report means a report of the useful life remaining of
the structures and systems of the Lessee Improvements and opinion of repairs,
replacements, or refurbishments recommended to maintain the operationally useful state
and condition of the Premises as defined and required by Article 10.
1.9. Construction Completion Date means the date of completion of the Project
as defined in Article 14.1.
1.10. Convenience Store means a retail business offering for sale:
a. Motor fuels including regular, mid-grade, high grade and automobile diesel.
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b. Fast food, including carry-out service with limited indoor and outdoor
seating, and fast food items that may also be sold via the drive-thru service
lane, all available 24-hours a day.
c. Lessee's branded specialty coffee concept available 24-hours a day.
d. Snacks, fountain or pre-packaged beverages, pre-packaged foods,
cigarettes and other merchandise typical to a convenience store operation,
except for pornographic materials, which are prohibited.
e. Beer and wine products for sale to the extent allowed by North Carolina
Alcoholic Beverage Control Commission regulations (and subject to
applicable permit/license and all other applicable Laws) with the following
restrictions and/or prohibitions: (1) beer and unfortified wine may only be
sold for off-site consumption; and (2) fortified wines may not be sold.
1.11. Delinquency Charge shall mean the delinquency interest charge for late or
failure to pay Rent as described in Article 5.3.1.
1.12. Effective Date means the date the Authority accepts and executes the
Lease after receiving an executed Lease from Lessee.
1.13. Encumbrance means any lien, cloud, charge, or encumbrance as described
in Article 20.
1.14. Environmental Laws is as defined in Article 11.4.1.1
1.15. Exit Audit means the environmental audit of the Premises as required by
Article 11.2.
1.16. Gross Receipts means all amounts received, billed, delivered and/or
realized by the Lessee, whether by cash, credit or otherwise received from customers
and clients of Lessee for all operating revenues occurring in, at or from the Premises (and
only at the Premises) including but not limited to inside sales for the convenience store
and drive through concessions, gaming, merchandise, food and beverages, etc.,
authorized by this Lease. All revenue is included in the definition of Gross Receipts unless
specifically excluded as provided below. In determining whether an amount is or is not
Gross Receipts the burden of proof is on the Lessee and all exclusions below will be
construed narrowly and adjusted by the deduction of the following, provided that separate
records are maintained for such deductions:
1.16.1. Sale of fuel on the Premises;
1.16.2. Proceeds from the sale of capital assets or expendables as defined
by generally accepted accounting principles;
1.16.3. Credits and refunds to customers for items purchased on the
Premises;
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1.16.4. Receipts from the sale or trade-in value of any equipment or
materials not constituting an item inventoried by Lessee for sale to the public or
used on the Premises by the Lessee.
1.16.5. The value of any merchandise, supplies, or equipment exchanged or
transferred from or to other locations of business of Lessee, where such exchange
or transfer is not made for the purpose of avoiding inclusion of a transaction which
would otherwise be made from or at the Premises.
1.16.6. Receipts in the form of rebates, refunds from, or the value of
merchandise, supplies or equipment returned to, shippers, supplies, or
manufacturers.
1.16.7. Taxes — Any fee or other charge levied by federal, state, county or
municipal government that is explicitly identified by the taxing authority as a tax
levied on the customer and required by law to be separately stated.
1.17. Ground Rent shall be that portion of Rent as defined in Article 5.1.2.
1.18. Hazardous Materials is as defined in Article 11.4.1.2.
1.19. Institutional Lender means any savings bank, bank or trust company,
savings, and loan association, provided the Institutional Lender is organized under federal
or state law, or a real estate investment trust as defined in Section 856 of the Internal
Revenue Code of 1986 (26 U.S.C. § 856(a)).
1.20. Insurance Requirements are the insurance requirements for the Premises
as defined in Article 8.1 and set forth in Exhibit E.
1.21. Lease means this Ground Lease and Agreement between the Authority and
the Lessee dated as of the Effective Date and containing the terms and conditions for the
operation of a Convenience Store with drive-thru food service lane, gasoline pumps and
underground storage tanks.
1.22. Lease Books and Records means books, records, and accounts of all
transactions pertaining to this Lease and as described in Article 6.1.1.
1.23. Lessee Improvement(s) means any building(s) (including the Convenience
Store), structure(s), alteration(s), landscaping, pipes, underground storage tanks,
impervious surface, conduit(s), infrastructure, and/or fixture(s) that Lessee constructs or
installs on the Premises pursuant to the provisions of this Lease, and includes all
subsequent Lessee Improvements, modifications, and additions that Lessee makes to
any Lessee Improvement.
1.24. Lease Term Commencement Date means the earlier of: (i) the date the
Certificate of Beneficial occupancy is received and Lessee opens to the public on the
Premises, or (ii) thirty (30) months after the Lease Effective Date.
1.25. Lease Year means July 1 through June 30, of each year.
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1.26. Lessee is Sheetz, Inc.
1.27. Lessee Parties means Lessee's employees, contractors, agents,
customers, invitees and permittees and other representatives present at the Premises.
1.28. Operating Standards means the operational standards as set forth in Article
7.1 and Exhibit D.
1.29. Percentage Rent shall mean that portion of Rent as described in Article
5.1.3.
1.30. Permitted Mortgage means any mortgage, deed of trust, and other security
interest held by an Institutional Lender or private lender that constitutes a lien on the
Lessee's Improvements that complies with Article 23 (Assignment, Subletting, Mortgage).
1.31. Permitted Uses means those certain uses and restrictions for use of the
Premises as set forth in Article 4.
1.32. Phase I Assessment means the environmental assessment of the Premises
as described in Article 11.1.
1.33. Plans means the plans and specifications for the Project as described in
Article 14.2.
1.34. Preliminary Site Plan means those preliminary plans and specifications for
the Lessee Improvements attached hereto as Exhibit A.
1.35. Premises means the approximate three (3) acre-site, outlined in red, shown
on Exhibit A.
1.36. Project means the design, development, financing, and construction of the
Lessee Improvements, Relocated Parking, Lessee's Right of Way Access, and Additional
Parking on the on the Site, that meets federal requirements for compatible land uses, as
conceptually shown on Exhibit B.
1.37. Records means the books, records, and accounts of all financial
transactions in the operation of all business activities on the Premises as set forth in
Article 6.1.1.
1.38. Release is as defined in Article 11.4.1.3.
1.39. Relocated Parking is the current vehicle parking spaces of the Authority that
will become the Premises after Lessee designs and constructs, at Lessee's sole cost and
expense, the Authority's vehicle parking area to equal or exceed the number of the current
vehicle parking spaces to the relocated parking area depicted, highlighted in green, on
Exhibit B attached hereto and made a part hereof.
1.40. Rent shall be as set forth in Article 5.
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1.41. Rent Commencement Date shall mean the earlier of: (i) the date the
Relocated Parking has been completed and the Authority delivers the Premises to Lessee
to construct Lessee's Improvements, or (ii) eighteen (18) months following the Effective
Date.
1.42. Security Deposit means the amount delivered to Authority as a security
deposit for this Lease as described in Article 5.4.
1.43. Term means the term of this Lease as defined in Article 2.
1.44. Transfer(s) means the sale, assignment, pledge, transfer, mortgage, or
sublease of any interest in this Lease or right of use of any portion of the Premises to
any third party by Lessee by any means as set forth in Article 23.1.
1.45. UST System means Lessee's underground fuel storage tanks and related
improvements to be installed by Lessee, including (but in no event less than that required
by any applicable Environmental Laws): (i) double wall tanks, (ii) double wall product
lines, (iii) containment sumps on all submersible motors, tank manway openings and
dispensers, (iv) overfill spill buckets at fuel drop openings and Stage I vapor recovery
points, (v) emergency shut-off system, and (vi) 24-hour electronic tank monitoring
system(s).
ARTICLE 2 -TERM
2.1 Initial Term. The Initial Term of this Lease is fifteen years ("Term"). The
Term shall begin on the Lease Term Commencement Date and expire at 12:00 midnight
EST fifteen (15) years later, unless sooner terminated pursuant to the provisions of this
Lease.
2.2 Option Periods. There shall be three (3) consecutive option periods of five
(5)years each to continue this Lease upon the same terms and conditions hereof("Option
Period(s)"). Provided Lessee is not in default under any term hereof, the Option Periods
may be exercised by Lessee upon at least six (6) months' advance written notification to
Authority of its intent to exercise any Option Period.
2.3 Due Diligence Period. Commencing upon the Lease Effective Date, Lessee
will have a one hundred and twenty (120) day due diligence period ("Due Diligence
Period") from the Effective Date of the Lease to complete further inspections and general
due diligence related to the feasibility of the Premises. The Lessee and the Authority shall
agree upon the design for the Relocated Parking and Additional Parking areas as
conceptually shown on Exhibit B attached hereto and made a part hereof. Lessee shall
have the right to enter upon the Premises and perform, at its sole cost and expense,
customary due diligence activities, including, without limitation, obtain a preliminary title
report/commitment, obtain an ALTA land title survey, obtain acceptable environmental
audit(s) (including a Phase I Environmental Audit and, if desired by Lessee, a Phase II
Environmental Subsurface Investigation Study ("Phase II") and/or ground penetrating
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radar (GPR) testing, collectively, "Environmental Studies"), and/or obtain an acceptable
geotechnical report, and all reports and/or studies completed during the Due Diligence
Period will be shared with the Authority. In the event Lessee's Phase II and/or
geotechnical report cannot be completed during the Due Diligence Period, upon written
notice from Lessee to be received by the Authority prior to expiration of the Due Diligence
Period, the Due Diligence Period shall automatically extend for sixty (60) days solely for
purposes of allowing Lessee to obtain and review such reports; provided, however, any
such extension shall not delay the commencement of the Permitting Period nor shall delay
and/or prevent the Deposit Release to the Authority. Lessee shall notify the Authority in
writing upon completion of the Due Diligence Period. Lessee shall have the right to
terminate the Lease for any reason or no reason during the Due Diligence Period and
restore the property to its original condition within thirty (30) days from said written
notification to Authority.
2.4 Permitting Period. Lessee will have a two hundred and forty (240) day
permitting period upon the expiration of the Due Diligence Period, beginning no later than
December 11, 2023, during which Lessee shall, at its sole cost and expense, use its best
efforts to obtain all necessary, applicable and appropriate permits, consents and
approvals from those governmental agencies having jurisdiction or oversight that will
allow Lessee to proceed with the development and construction of the Project and
Lessee's Improvements for the use and occupancy of the Premises, including, but not
limited to (i) a lot reconfiguration/consolidation plat creating the Premises as a single,
separate legal tax parcel, (ii) land development plan, building plan and site plan
approval(s) for the Premises (inclusive of construction document approval); (iii) any
zoning and/or land use permits)/approval(s) necessary or desired in order to allow the
Premises to be used for all of Lessee's Permitted Uses, including, to the extent applicable,
any rezoning approval, zoning variance(s), special exception(s), administrative
exception(s)and/or conditional, special or auxiliary use permit(s)/approval(s), (iv)signage
permits/approvals; (v) fuel pump island canopy permit(s)/approval(s); (vi) National
Pollutant Discharge Elimination System ("NPDES"), Erosion and Sediment Control
("E&S"), and grading permits; (vii) state and local highway and driveway access
permits/approvals (including any necessary traffic impact analysis/study and required
Buncombe County, Henderson County, and/or NCDOT permits/approvals), and (viii) all
other necessary, applicable and/or desired permits and approvals for the construction of
Lessee's Improvements on the Premises, the Relocated Parking and Additional Parking
(collectively, "Governmental Approvals"). All Governmental Approvals, and any and all
conditions and/or proffers attached thereto, as applicable, shall be to the satisfaction of
Authority and Lessee, including, without limitation, acceptable building size, acceptable
number of fueling pumps, acceptable and adequate ingress and egress consistent with
the Preliminary Site Plan, acceptable and adequate signage, acceptable and adequate
parking, acceptable design, layout and color scheme, acceptable impact fees and
otherwise general financial acceptability, and consistent with Lessee's prototypical
convenience stores and auto fueling facilities recently or currently being constructed, as
designed by Lessee. The Governmental Approvals shall be deemed obtained when they
have been issued to Lessee by the proper entity/authority and all applicable appeal
periods have fully expired without the filing of an appeal by any other party, or, if an appeal
has been filed, then such appeal shall have been dismissed, settled, adjudicated or
otherwise finally resolved in favor of Lessee, to Lessee's and Authority's satisfaction,
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without possibility of any further appeal. The Authority shall cooperate with Lessee (as
necessary, and at no cost to the Authority) in obtaining the Governmental Approvals.
Notwithstanding the foregoing, all necessary permits for the Relocated Parking and the
Additional Parking shall be obtained prior to Lessee commencing any construction on the
Premises.
2.4.1. Extension of Permitting Period: Provided Lessee is not in default
under any provision of this Lease at the time, Lessee shall have the right and option
to extend the Permitting Period for two (2) additional periods of forty-five (45) days
each for the sole purpose of obtaining any outstanding Governmental Approvals,
which may be exercised by delivering written notice thereof to the Authority on or
before the last day of the Permitting Period (as previously extended, as applicable).
2.4.2. Notice of Termination / Notice of Satisfaction. Promptly upon
Lessee's determination or receipt thereof, Lessee shall provide written notice to
the Authority (a) if any Governmental Approvals are not or cannot be satisfied
during the Permitting Period (as may be extended), and, as a result thereof,
Lessee is electing to terminate this Lease (a "Notice of Termination"), or (ii) if all
Governmental Approvals are completed to Lessee's satisfaction, or otherwise
waived by Lessee, and Lessee is electing to proceed to the Lease Term
Commencement Date (a "Notice of Satisfaction"). The date on which Lessee
delivers a Notice of Satisfaction (if applicable) is hereinafter referred to as the
"Notice of Satisfaction Date". Upon delivery of a Notice of Satisfaction, Lessee
shall not thereafter have the right to terminate this Lease on the basis of non-
satisfaction of any Governmental Approvals, except as otherwise agreed to by the
Parties. In the event Lessee has not delivered a Notice of Termination or Notice
of Satisfaction on or before the expiration of the Permitting Period (as may be
extended), then, unless otherwise mutually agreed to in writing by the Parties, this
Lease shall be deemed terminated, whereupon the Parties shall have no further
rights, liabilities or obligations hereunder, except for any rights, liabilities or
obligations which expressly survive the termination hereof. Notwithstanding the
foregoing, prior to Lessee electing to terminate this Lease due to denial or non-
receipt of any Governmental Approvals, Lessee shall provide documentation of
such denial(s) to the Authority, and the Authority shall use commercially
reasonable efforts to assist in modifying the denials. In the event of termination
aforesaid, Lessee shall restore the Premises to its original condition within thirty
(30) days of such termination.
2.5 Holdover and Holdover Rent. If Lessee continues to occupy the Premises
after the expiration or earlier termination of this Lease without Authority's prior written
approval, then Lessee's occupancy shall be deemed at sufferance. In such event, Lessee
shall pay an occupancy fee equal to 150% of the monthly Rent in effect immediately prior
to termination of this Lease. Provided, however, notwithstanding the foregoing, in the
event Lessee holds over for the sole purpose of performing its obligations under Section
11.2.2, then Lessee 's occupancy shall be at sufferance at a monthly rental, payable in
advance, equal to (i) 110% of the monthly Rent in effect immediately prior to termination
of this Lease during the first sixty (60) days following the Lease termination, and (ii) 150%
of the monthly Rent in effect immediately prior to termination of this Lease thereafter.
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Lessee is bound by and shall comply with all other provisions of this Lease while in
possession of the Premises or any part thereof.
2.5.1 Nothing shall be construed, however, to give any right of holdover
and Authority may exercise any all remedies of the law or in equity to recover
possession of the Premises identified in the Agreement, together with any
damages incurred by Authority.
ARTICLE 3 - PREMISES
3.1 Premises. Authority hereby leases to Lessee and Lessee hereby leases
from Authority improved land defined herein as the Premises, consisting of approximately
three (3) acres, located in Fletcher, North Carolina, 28732, as shown on Exhibit A, for
Lessee to construct Lessee's Improvements, and the Relocated Parking and Additional
Parking as further described below.
3.1.1 Relocated Parking. Authority hereby grants a license to Lessee upon
commencement of and until construction of Relocated Parking is complete, over,
across, and under that portion of the parcel of real property owned by the Authority
immediately adjacent and to the south of the Premises ("Adjacent Authority
Property") for Lessee to construct the Relocated Parking, as shown on Exhibit B.
3.1.2 Additional Parking. Authority hereby grants a license to Lessee upon
commencement and until construction of the Additional Parking is complete, over,
across, and under the Adjacent Authority Property to the south of the Relocated
Parking for Lessee to construct the Additional Parking, as shown on Exhibit B.
The Authority hereby agrees to pay all costs associated with any parking created
in excess of the required Relocated Parking area. All such costs shall be agreed
to in advance by the Authority and paid either as a Ground Rent credit or
reimbursement of the costs paid by Lessee.
3.1.3 Reservations of Authority. Lessee further agrees and accepts the
Premises subject to the right of the Authority to secure any additional land and/or
access, utility or other development easements of and/or over the Premises that
may be necessary in the Authority's discretion to create, use and/or develop the
adjacent property owned by the Authority. Lessee hereby consents and agrees to
these easements, and the Authority will provide notification to Lessee of the
easements to create legally accessible parcels of land for the Reserved Parking
and Additional Parking parcels throughout the Lease Term. In the event the
Authority requires the access to the Additional Parking or Relocated Parking
parcels to be altered at any time during the Lease Term, the Authority, or its
developer, shall pay for any damage and cost of repair to the right-of-way access
to the Premises that occurs as a result of the Authority's construction.
3.2 Right of Way Access. During the Lease Term and any Option Periods, the
Authority grants unto Lessee a non-exclusive and irrevocable access easement over and
across that portion of property owned by the Authority immediately adjacent and to the
south of the Premises providing for access to and from the public right of way of Boylston
Highway / New Airport Road (NC280) and the Premises ("Right of Way Access"),
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highlighted in blue as conceptually shown on Exhibit B. After initial construction of
Lessee's access to the Premises, Lessee shall have no right to add, modify, change
and/or upgrade any improvement located upon the Right of Way Access without the prior
written approval of the Authority. The Authority shall not be required to furnish any
services or facilities to Lessee for the Right of Way Access.
3.2.1 Reservations of Authority. The Authority reserves the right, but not
the obligation, to make any additions, repairs or alterations to the Right of Way Access
as the Authority deems necessary or appropriate for its use and ownership. In the event
the Authority requires alterations to Lessee's Right of Way Access, as it pertains to the
Additional Parking or Relocated Parking, at any time during the Lease Term, the
Authority, or its developer shall pay for all costs of construction and restoration of
Lessee's Right of Way Access to the Premises to substantially the same condition as
existed prior to Authority's construction. In the event any additions, repairs or alterations
completed by the Authority causes any damage, destruction and/or disrepair of the Right
of Way Access, and the same is in no way caused by any action of Lessee, then the
Authority, in its election shall repair any damages to Lessee's Right of Way Access to
substantially the same condition as existed prior to the Authority's construction and/or
construct and install a new right of way to reasonably replace and supplement the said
destructed or damaged Right of Way Access.
3.3 Condition of Premises and Absence of Warranties. The Lessee agrees to
accept the Premises in its "AS IS, WHERE IS" condition upon the date that Lessee
accepts the Premises to begin construction of Lessee's Improvements. Lessee
acknowledges and affirms by acceptance, that it has had the opportunity to conduct a full
and complete examination of the environmental and other conditions of the Premises and
the title thereto and has knowledge of its present uses and non-uses, and without any
representation or warranty, express or implied, in fact or by law, by Authority to the title,
nature, condition, or usability of the Premises or the uses to which the Premises or any
part thereof may be put, and without recourse to Authority as to the title, nature, geology,
condition, or usability of the Premises. In the event any environmental remediation or any
issue that requires the Authority to remedy occurs during the Due Diligence Period and
prior to Lessee's acceptance of the Premises (herein "Remediation Work") and the costs
of the Remediation Work exceeds Twenty Thousand and 00/100 Dollars ($20,000.00)
("Remediation Threshold"), the Authority shall have the right to terminate the Lease upon
written notice to Lessee ("Environmental Termination Notice"); provided, however, upon
Lessee's receipt of Authority's Environmental Termination Notice, Lessee may, by written
notice sent to the Authority within ten (10) business days, and in lieu of termination, elect
to pay any and all costs above the Remediation Threshold and require the Authority to
complete the Remediation Work. Upon the Notice of Satisfaction Date, Lessee assumes
the full and sole responsibility for the condition, construction, operation, repair, demolition,
replacement, maintenance, and management of the Premises, including the performance
of all burdens running with the land of the Premises. Lessee, at its expense, shall furnish
custodial, janitorial, trash service, cleaning service, and any other services required to
operate the Convenience Store on the Premises. Lessee agrees that the rules and
regulations of the Federal Aviation Administration (FAA) apply to this Lease and the
Premises.
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3.4 Survey. Within ninety (90) days following completion of any of the Lessee
Improvements, which completion shall be evidenced by a certificate of occupancy issued
for any building constructed by Lessee on the Premises, the Lessee shall deliver to
Authority a copy of an "as-built" survey, metes and bounds legal description, drawn by a
NC licensed surveyor or engineer (the "Survey") and the "as-built" construction plans
thereof. The Survey shall include the square footage for the Premises, as mutually
agreed upon by the Parties. The square footage will be adjusted upward or downward to
reflect the actual Premises boundary and all future Rents for the Premises based upon
square footage reflected by the Survey shall be adjusted accordingly as provided for
herein.
ARTICLE 4 - PERMITTED USES
4.1 Permitted Uses. Regardless of the uses that might otherwise be allowed
pursuant to the zoning classification or other ordinances that may be applicable to the
Premises during the Lease Term, the Premises may only be used for the operation of an
of a non-exclusive Convenience Store, and for no other use or purpose whatsoever
without Authority's prior written approval ("Permitted Uses").
4.2 The Premises and Lessee Improvements may be used only for conducting
the Permitted Uses and any individual portion of the Premises or Improvements may be
used only for the purposes for which they were designed. Except as provided in this
Section or elsewhere in this Lease, the Premises or Lessee Improvements may be used
for no other use without the Authority's prior written consent, which the Authority may
withhold or condition in its sole discretion.
4.3 General Limits on Use
4.3.1 Lessee shall not use or conduct any activity on the Premises that (i)
is prohibited by any applicable governmental requirement, including but not limited
to zoning ordinances, and/or FAA regulations, (ii) violates any provision of this
Lease or any other agreement between Authority and Lessee.
4.3.2 Lessee shall not store any equipment or materials of any kind on the
Premises which to the general public is unsightly or inconsistent with the
Authority's objective to maintain the Premises and Improvements in a neat and
orderly condition.
4.3.3 Without limiting the generality of any other provision of this Lease,
and without the Authority's written consent, which consent shall not be
unreasonably withheld, delayed or conditioned, and except as described in the
Permitted Uses, Lessee shall not use the Premises or Improvements: (a) to
provide any facilities, services, commodities or supplies, now or hereafter made
available at or through the Airport, except as expressly allowed as the Permitted
Uses defined herein; (b) to provide automobile and/or truck rentals or perform
automobile repairs and maintenance (c) to operate any motor vehicle rental
business, public parking for hire, or facilities for the preparation, storage or
distribution of merchandise for sale or consumption aboard aircraft, (d) for parking
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for passengers or customers of the Airport and shuttle services (other than parking
for Lessee's customers, employees and invitees while at the Premises), (e) for the
installation or operation of any antennae, satellite dish or other system for third
party transmission, reception or relay of voice or data communications not
benefitting Lessee or the Premises; or (f) residential use, camping, mobile home
sales; (g) use any portion of the Premises for an adult or sexually-oriented
businesses of any kind whatsoever. Lessee shall not use the Premises or any part
thereof for any purpose prohibited by this Lease without Authority's prior written
consent, which may be withheld in the Authority's sole discretion.
4.3.4 Lessee shall use and occupy the Premises so that Lessee does not
cause any damage to the Premises and Lessee shall not commit or allow others
to commit any form of legal waste or impairment of the Premises. Lessee is liable
for all such damage whether caused by the wrongful, negligent, or willful act or
omission of Lessee or Lessee Parties.
4.4 Signage. Lessee shall not install, post, or erect any sign, poster, banner,
flag, or other signage on or about the Premises that is permanent or unsightly without
Authority's prior written approval. A request for permanent signage shall be submitted
to Authority in writing and include a sample of the proposed signage. Lessee shall
remove all unapproved signage within ten (10) days upon written demand by Authority.
If such signage is not removed within such 10-day period, then the Authority may enter
the Premises and remove the signage at Lessee's expense. Lessee shall maintain all
Authority-approved signage in good condition at all times. Lessee agrees that no exterior
signs or advertising material shall be erected on the Premises or on any improvement
or facility on the Premises unless the design and layout of such signs and advertising
material, together with the materials and method of construction of such signs and
advertising material, shall have been approved in advance in writing by Authority, which
approval shall not be unreasonably withheld. Lessee shall not erect, install, operate,
nor cause or permit to be erected, installed, or operated upon any Premises owned by
the Authority not leased by Lessee, any signs, banners, or other similar devices for its
own business, or the business of others. This provision shall not have the effect of
limiting or restricting Lessee's• right to enter into an agreement with Authority's
authorized and permitted marketing, advertising, or signage agency for the display of
informational, marketing or advertising media at approved designated locations on
Airport property, if ever agreed upon. Lessee shall have no right to erect or install, or
cause or consent to be erected or installed, any commercial outdoor advertising by a
commercial advertising agency on the Premises.
4.5 Parking Requirements. Lessee and Authority agree that the Lessee is a
24-7 (meaning all hours of every day) operator and will have employees and customers
parking within the Premises during the Lessee's hours of operation. Notwithstanding the
foregoing, Lessee agrees that parking on the Premises shall only be permitted for Lessee
Parties. Parking on the Premises for uses or activities off the Premises or long-term
storage purposes shall be prohibited. Lessee shall not provide passenger shuttle
services or provide any type of parking services on the Premises.
4.6 Variances. Authority expressly reserves the right, but not the obligation, to
grant written variances from the use restrictions contained in this Article. In reviewing any
request for a variance, Authority shall consider whether the proposed variance will
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materially injure or prejudice any other property owned by Authority or unreasonably
interfere with the use and enjoyment by any other lessee and their respective parcels.
Lessee is responsible for complying with all governmental and other requirements
pertaining thereto.
4.7 Exemption of Authority. The provisions of this Article shall not apply to any
use or activity approved in writing by or conducted or undertaken by or at the direction of
Authority.
ARTICLE 5 - RENT
5.1 Rent. Commencing upon the Rent Commencement Date, Lessee shall pay
a fair market value ground rent and percentage of Gross Receipts (collectively "Rent") on
the Rent Commencement Date during the Lease Term and the Lease Term Option
Periods for the Premises.
5.1.2 Ground Rent. The Fair Market Value (FMV) Ground Rent for the
Premises ("Ground Rent") shall be $1.60 per square foot of the Premises per year,
paid monthly. The amount for Ground Rent beginning on the Rent Commencement
Date for the Premises is $209,088.00 annually, or$17,424.00 monthly, as adjusted
in accordance herein. Ground Rent as set forth herein is based upon a square
footage of 130,680 (± 3 acres) and shall be subject to adjustment based upon the
Survey as provided for in Section 3.4 hereof. Ground Rent shall be adjusted every
five (5) years in accordance with Table 1.
Table 1
Fair Market Value Ground Rent based on 130,680 square feet (3 acres)
Per Square Foot
Lease Years Rental Rate Annual Rent Monthly Rent
1-5 $ 1.60 $ 209,088.00 $ 17,424.00
6- 10 $ 1.76 $ 229,996.80 $ 19,166.40
11- 15 $ 1.94 $ 253,519.20 $ 21,126.60
16-20 $ 2.13 $ 278,348.40 $ 23,195.70
21-25 $ 2.34 $ 305,791.20 $ 25,482.60
26-30 $ 2.57 $ 335,847.60 $ 27,987.30
5.1.3 Percentage Rent. A percentage rent of 1.5% (one and one-half
percent)of Gross Receipts shall be paid to Authority on a monthly basis throughout
the Lease Term and Lease Term Option Periods ("Percentage Rent").
5.2 Monthly Installments. All Rent shall be paid in twelve (12) monthly
installments, without notice or demand, on the first day of each month, except that if any
Rent commences on a day other than the first day of the month, the first payment of Rent
attributable to the newly commencing rental period shall be prorated to the end of that
month.
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5.3 Late Payments
5.3.1 Delinquency Charge. Lessee shall pay a delinquency interest
charge of eighteen percent (18%) of the payment of Rent, or the maximum rate of
interest allowed by law, whichever is greater ("Delinquency Charge") per annum
from the date such Rent is due, for any payment of Rent not made by Lessee within
ten (10) days after written notice from Authority of nonpayment thereof is received
by Lessee; provided, however, after one such notice of late payment is delivered
by Authority to Lessee in any consecutive twelve (12) month period, the
Delinquency Charge shall accrue automatically without prior notice if any payment
of Rent is not paid when due. The Delinquency Charge is subject to periodic
change upon at least thirty (30) days' prior written notice to Lessee, at the
Authority's sole discretion, but in no case shall such change be inconsistent with
Authority policy and practice with respect to the amount of the Delinquency Charge
imposed on other similar Lessees of the Authority. Imposition of a Delinquency
Charge shall not constitute a waiver of any other remedies available to the
Authority due to Lessee's failure to timely pay Rent. If not timely paid by Lessee,
the Authority may also draw upon the Security Deposit as outlined in this Lease
for any Delinquency Charge, in which event, the Lessee shall promptly replenish
the Security Deposit for the funds so used. Notwithstanding the foregoing, in no
event shall Lessee be responsible for the Delinquency Charge in the event
Authority fails to receive any payment of Rent due to any change in Authority's
address or direct deposit information for which Lessee has not received written
notice at least thirty (30) days prior to the due date for such payment.
5.3.2 Returned Checks. If Lessee's check for payment of Rent or any other
payment due the Authority under this Lease is returned as insufficient funds for
any reason, the payment shall be considered not to have been made and shall be
delinquent. In addition to the Delinquency Charge, the Authority may charge
Lessee a returned check fee of One Hundred and 00/100 Dollars ($100.00) per
returned check, which Lessee agrees is a reasonable fee for the additional
administrative time and expense incurred by the Authority in having to deal with
the returned check. The Delinquency Charge shall continue to accrue until the
returned check fee is paid, the check can be cashed, and the Authority receives
all funds due. Imposition of a Delinquency Charge shall not constitute a waiver of
any other remedies available to the Authority due to Lessee's failure to timely pay
a returned check fee. Notwithstanding the foregoing, in no event shall Lessee be
responsible for any returned check fee in the event Authority fails to receive any
payment of Rent due to any change in Authority's address or direct deposit
information for which Lessee has not received written notice at least thirty (30)
days prior to the due date for such payment.
5.3.3 Acceptance of Rent. The Authority's acceptance of a late or partial
payment of Rent and/or a Delinquency Charge shall not constitute a waiver of any
Event of Default nor shall it prevent the Authority from exercising any of its other
rights and remedies granted to the Authority under this Lease or by law. It is hereby
agreed that any endorsements or statements on checks of waiver, compromise,
payment in full or any other similar restrictive endorsement shall have no legal
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effect. Lessee shall remain in violation of this Lease and obligated to pay all Rent
due even if the Authority has accepted a partial or late payment of Rent.
5.4 Security Deposit. Upon the Lease Effective Date, Lessee shall deposit
Sixty-Nine Thousand Six Hundred Ninety-Six and 00/100 Dollars ($69,696.00) ("Security
Deposit") with an escrow agent mutually agreeable to the parties ("Escrow Agent"). The
Security Deposit shall be fully refundable if Lessee terminates the Lease on or before the
expiration of the Due Diligence Period without any extensions. The Security Deposit is
required to be in place for the entire Term of the Lease and may be amended from time
to time at the discretion of the Authority. Lessee's obligations under this Section shall
survive the expiration or earlier termination of this Lease.
5.4.1. If Lessee does not terminate the Lease on or before the expiration of
the Due Diligence Period without any extensions, Thirty Thousand and 00/100
Dollars ($30,000.00) of the Security Deposit ("Deposit Release") shall become
non-refundable and the Escrow Agent shall release such $30,000.00 to the
Authority.
5.4.2.If Lessee does not terminate the Lease on or before the ninetieth
(90th) day of the Permitting Period, Twenty Thousand and 00/100 Dollars
($20,000.00) of the Security Deposit shall become non-refundable and the Escrow
Agent shall release such $20,000.00 to the Authority.
5.4.3. If Lessee does not terminate the Lease on or before the one hundred
and eightieth (180th) day of the Permitting Period, the remaining portion of the
Security Deposit shall become non-refundable and the Escrow Agent shall release
such remaining portion to the Authority.
5.4.4 Adjustment to Security Deposit. Authority may increase the amount
of the Security Deposit from time to time so that it is equal to or greater than three
(3) months' Rent then in effect. Authority may increase the amount of the security
guarantee by giving Lessee at least thirty calendar days' prior written notice of the
amount of the increase. The amount of the Security Deposit may be increased for
any reason Authority deems appropriate, including (A) an increase of Lessee's
financial obligations under this Lease, (B) Lessee's failure to pay any Rent,
Additional Payment, or any other amount when due, and/or (C) if, in the Authority's
own discretion, the Lessee's financial condition changes to the extent that
Authority is concerned about Lessee's ability to perform under this Lease. Lessee
shall pay to Authority the additional amount necessary to increase the Security
Deposit upon written notice from Authority.
5.4.5 Duty to Restore Security Deposit. The Security Deposit insures the
full and timely performance by Lessee of all its obligations under this Lease and is
security for payment by Lessee of all claims by Authority. Authority may draw on
or make a claim against the Security Deposit if Lessee defaults, breaches or fails
to perform under this Lease. If Authority draws on or makes a claim against the
Security Deposit pursuant to the terms hereof, then Lessee, upon written demand
from Authority, shall replenish the Security Deposit to its previous amount within
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thirty(30) calendar days of Authority's written notice to Lessee of the draw or claim.
5.4.6 Refund of Security Deposit. After the expiration or earlier termination
of this Lease, Authority shall refund the Security Deposit to Lessee less any Rent,
Additional Payments, and any other amount due to Authority. In the event Lessee
terminates this Lease prior to the Lease Term Commencement Date due solely to
a default by the Authority, Lessee shall be entiled to a full refund of the Security
Deposit. Authority will not pay interest to Lessee on the Security Deposit, but the
Security Deposit may be held in any interest-bearing account for the benefit of the
Authority.
5.5 Triple Net Lease. Authority and Lessee agree that Rent shall be absolutely
net to Authority so that this Lease shall yield to Authority the Rent each year during the
Lease Term free of any taxes, charges, assessments, Additional Payments, or deductions
of any kind charged, assessed, or imposed on or against the Premises and without
abatement, deduction or set-off by Lessee, except as specifically provided in this Lease,
and Authority shall not pay any such charge, assessment, or Additional Payment or be
under any obligation or liability hereunder, except as otherwise expressly provided in this
Lease. All costs, expenses, and obligations of any kind relating to the maintenance and
operation of the Premises, including all construction, alterations, repairs, reconstruction,
and replacements, which may arise or become due during the Lease Term shall be paid
by Lessee and Authority shall be indemnified and saved harmless by Lessee from and
against all such costs, expenses, and obligations. Notwithstanding the foregoing, Lessee
shall not be obligated to pay for interest due and amortization on any Authority mortgages
against the Premises and/or for any charges or payments that, by their nature, are purely
personal to Authority, such as taxes on rental income and succession taxes.
5.6 Percentage Rent Reports.
5.6.1 In computing Percentage Rent to be paid by Lessee, the first
reporting period, as defined herein, shall commence on the Rent Commencement
Date, and shall end at the close of business on the last day of the same calendar
month. Thereafter, the reporting period shall be on a calendar month basis.
5.6.2 Monthly Reports. Beginning the first month following the Rent
Commencement Date, Lessee shall, on or before the fifteenth (15th) day of each
calendar month ("Monthly Report Due Date") after the close of each month, deliver
to Authority a detailed statement of Gross Receipts and any deduction as defined
from Gross Receipts for the preceding month prepared in accordance with
generally accepted accounting principles ("GAAP")and signed by a financial officer
of Lessee. The Gross Receipts report must show the data and breakdown for
Lessee, and if requested by Authority, an itemized list identifying all Gross
Receipts and any other type of reporting required by Authority, and shall be
accompanied by Lessee's payment of Rent that is due based on the application of
the Percentage Rent. A sample report is attached as Exhibit C. Authority may
require changes to the format of these reports at any time, but upon no less than
thirty (30) days' prior written notice to Lessee. The first Monthly Report Due Date
shall be due on the 15th of the month following the month during which the Rent
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Commencement Date begins.
5.6.3 Annual Reports, Annual Audited Statement of Gross Receipts,
Lessee shall deliver to Authority within ninety (90) days of the end of each Lease
Year, during the Term of this Lease and any Option Periods, a "Schedule of Gross
Receipts" for the operations as defined in Section 1.17, for the previous Lease
Year, prepared in accordance with GAAP, accompanied either by an opinion of an
independent Certified Public Accountant, a certification of Lessee's Chief Financial
Officer, or a certification by an independent Certified Public Accountant on behalf
of Lessee. Opinions issued by an independent Certified Public Accountant shall
be issued in accordance with the provisions of Statement of Auditing Standards
No. 62, Special Reports, as promulgated by the AICPA. Certifications provided
either by Lessee's Chief Financial Officer or by an independent Certified Public
Accountant on behalf of Lessee shall be in such form and content as is acceptable
by the Authority. Said statement shall set forth the calculation of Gross Receipts,
and the calculation of the Percentage Rent for the previous year as defined under
this Lease. If any such statement discloses that additional sums are due to
Authority, Lessee shall pay to Authority such additional sums with the submission
of said statement to the Authority. This requirement applies to prorated Lease
Years at the start and end of the Lease Term. The purpose of the annual statement
is to determine if the Gross Receipts and Percentage Rent reported accurately
reflect the Rent due and paid to Authority for the Lease Year for the Premises.
5.6.4 Late Statements and Reports. If Lessee is delinquent for ten (10) or
more calendar days in furnishing Authority with any monthly or annual statement
or other report required under this Lease, then Lessee shall pay One Hundred and
00/100 Dollars ($100.00) per late statement or report to Authority as damages for
the additional administrative costs incurred by Authority in processing and
reviewing delinquent statements or report. The Parties agree this is a fair and
reasonable estimate of Authority's costs incurred in processing a delinquent
monthly statement or report.
5.7 Additional Fees. Lessee may be subject to such other fees and costs as
are now or hereinafter imposed by the Authority; however, such fees or charges shall be
applied uniformly on all similarly situated users by the Authority.
ARTICLE 6 - RECORDS
6.1 Records.
6.1.1 Lessee shall maintain, at all times, during the term of this Lease, keep
or cause to be kept and maintained in accordance with GAAP true and complete
books, records, and accounts of all financial transactions solely pertaining to
Lessee's operations on the Premises ("Lease Books and Records").
6.1.2 The Lease Books and Records and accounts shall include detailed
analyses listing all of Lessee's transactions from operations at the Premises in the
form of printed, written, or electronic media. Lessee shall provide such Lease
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Books and Records within twenty (20) calendar days upon written notice by the
Authority to Lessee, throughout the Lease Term. Lease Books and Records shall
include, but shall not be limited to, all original accounting source documents
detailing transactions relevant to this Lease, including but not limited to
operating/financial statements, a complete (cumulative) general ledger, monthly
sales journals detailing each transaction for the month, reconciliations between
the financial records and monthly reports submitted to Authority, bank statements
applicable to the operations at the Premises and related reports on internal
controls (including management representation letters), electronic media
documenting accounting records, and other sales-related documents. Said Lease
Books and Records and accounts shall also include documentation of all
exclusions from Gross Receipts claimed by Lessee, and documentation of said
records supporting reductions to Gross Receipts authorized pursuant to Article
1.17 of this Lease.
6.1.3 Lessee shall cause to be installed and shall at all times use, such
cash registers, invoicing machines, sales slips and other accounting equipment,
devices and forms as are reasonably necessary to record properly, accurately and
completely all sales and transactions related to Lessee's Gross Receipts.
6.1.4 In those situations where Lessee's records have been generated from
computerized data, Lessee shall provide Authority with extracts of data files in a
computer readable format sent via email with attached files, or suitable alternative
computer data exchange formats as requested by Authority.
6.1.5 The Lease Books and Records required hereunder shall be kept and
maintained for a period of at least three (3) years from the date of creation and for
such extended period as Authority requires in the event that there is an audit or
litigation pending.
6.1.6 Notwithstanding any provision herein, Lessee shall keep all Lease
Books and Records for a minimum of three (3) years following termination of the
Lease.
6.2 Authority Right to Audit Lessee's Records. Authority shall have the right, at
the Authority's expense, to audit or authorize audits of the Lease Books and Records
upon at least thirty (30) days' prior written notice to Lessee, subject to the following: (a)
the audit shall be prepared by an independent certified public accounting firm of
recognized national standing; (b) in no event shall any audit be performed by a firm
retained on a "contingency fee" basis; (c) the audit shall commence within thirty (30) days
after Lessee makes the Lease Books and Records available to Authority's auditor and
shall conclude within sixty (60) days after commencement; (d) the audit shall be
conducted during Lessee's normal business hours at the location where Lessee
maintains the Lease Books and Records and shall not unreasonably interfere with the
conduct of Lessee's business; and (e) the Authority and its accounting firm shall treat any
audit in a confidential manner and shall each execute Lessee's confidentiality agreement
for Lessee's benefit prior to commencing the audit. If either an annual audit or any other
lesser period audit performed by Authority discloses an under reporting of Gross
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Receipts, Lessee shall pay to Authority any amounts due under this Lease within thirty
(30) business days of written notice by Authority, plus interest calculated in accordance
with Article 5.3 of this Lease. In addition, if an audit conducted by Authority discloses an
under reporting of Gross Receipts by two percent (2.0%) or more for any twelve (12)
month period, Lessee shall, at Authority's direction, reimburse Authority for the full cost
of the audit, any applicable legal fees, and expenses and shall pay a penalty of ten
percent (10%) of the under reported Percentage Fee. If it is determined that Lessee has
overpaid the Percentage Rent, the Authority shall reimburse to Lessee the overpaid
amount within thirty (30) business days of the completion of the audit completed at the
Authority's expense.
6.2.1 Lessee shall provide the contact information of Lessee's AVP of
Accounting who will provide the basis of the accounting system as it pertains to
this Lease and who will assist the Authority with its audit. In the event necessary
for any audit by the Authority, Lessee will also use reasonable efforts to engage
and interview present and/or past employees involved in the financial or
operational activities of Lessee during such auditing period in question.
6.2.2 Provided, there is no material disruption of Lessee's use or
operation of the Premises, Lessee agrees to provide appropriate workspace to
Authority to conduct the audit and free access to office and equipment needed to
conduct the audit. If Authority has authorized Lessee to keep any Lease Books
and Records outside the Premises or outside Buncombe County and Henderson
County, North Carolina, and the same cannot be provided and made available
locally, Lessee agrees to reimburse Authority for expenses incurred in sending
representatives to wherever such books and records are maintained. Such
expense will include transportation, lodging, food, and other out-of-pocket
expenses resulting from the necessity to leave Buncombe County or Henderson
County.
6.2.3 Lessee's duty to maintain the Lease Books and Records and
Authority's rights under this Lease to inspect and audit the books and records of
Lessee shall survive the expiration or earlier termination of this Lease.
6.3 Confidentiality. All Lease Books and Records, audits and other records
provided in this Article 6 are to be held in confidence and not disclosed by the Authority
without the prior written approval of the Lessee, unless required by law; however, this
shall expressly not include disclosure to the Authority's attorneys, officers, accountants
and other professionals engaged by the Authority to assist with this Lease and who are
directed to comply with the confidentiality requirements of this Section 6.3.
ARTICLE 7 - PERFORMANCE AND OPERATIONAL STANDARDS
7.1 Operational Standards. Following the design and construction of the
Convenience Store, Lessee shall continuously maintain and operate the Convenience
Store in accordance with the terms hereof during the Term hereof except for any periods
during which such maintenance and operation is not commercially and reasonably
possible as a result of casualty or condemnation (but subject to Lessee's obligations
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under this Lease in the event of casualty as described in Article 21). Lessee is required
to meet or exceed all operational standards defined in this Section and included in Exhibit
D, "Operating Standards", which may be amended from time to time and sent to Lessee
in writing by the Authority.
7.2 Renovations and Alterations; Restrictions. From and after the Lease Term
Commencement Date, and subject to Section 14.7.2, below, Lessee shall not improve,
change, alter, add to, remove or demolish all or any of the Lessee Improvements, if such
action would require a building permit under applicable law or would constitute a material
change to the aesthetic appearance or structure of the exterior portions of the Lessee
Improvemets, without the prior written consent of the Authority; provided, however,
Lessee shall replace the canopy and awning on the exterior of the Lessee Improvements
from time to time as necessary to maintain the appearance of the exterior of the Lessee
Improvements as a first-class Convenience Store (collectively, the "Refurbishment"). Any
such permitted Refurbishment by Lessee must comply with all conditions imposed by the
Authority and the then current Development Guidelines. Full and complete specifications
for all work and improvements, along with a statement of the time required to complete
such work shall be submitted to and approved in writing by the Authority before
construction work commences on any such Refurbishment. First-class standards of
design and construction will be required in connection with any and all such
Refurbishment work, and all Refurbishment improvements shall conform with applicable
statutes, ordinances, building codes, regulations and other general requirements of the
Authority, including but not limited to compliance with then current Development
Guidelines, procurement of general liability and builder's risk insurance and performance
and payment bonds, and compliance with worker's compensation, DBE participation
requirements and compliance with the Americans with Disabilities Act, 42 U.S.C. 12,000
et seq., and its regulations. The approval given by the Authority shall not constitute a
representation or warranty as to such conformity; responsibility therefore shall at all times
remain with Lessee. Approval of the Authority shall extend to and include consideration
of architectural and aesthetic matters, and the Authority expressly reserves the right to
reject any designs for any Refurbishment submitted (provided the Authority shall provide
Lessee with an explanation, in reasonable detail, of the basis for the Authority's rejection
and any suggestions for modifications which may garner, but not guarantee, the
requested approval) and to require Lessee to resubmit designs and layout proposals until
they meet with the Authority's approval, such approval not to be unreasonably withheld,
conditioned or delayed. The Authority agrees to act promptly upon a request for approval
of such plans and/or revisions thereto.
ARTICLE 8 - INSURANCE
8.1 Lessee Obligation to Insure. Lessee, at its expense, shall procure and
maintain for the Term of this Lease insurance against claims for injuries to persons and/or
damage to property that may arise from or in connection with this Lease or activities on
the Premises by Lessee or its agents, employees, representatives, contractors, licensees,
or invitees according to the "Insurance Requirements" set forth in Exhibit E attached
hereto and made a part hereof. Lessee shall provide the Authority with copies of all
insurance certificates and renewals.
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8.2. Risk of Loss. Authority is not required to carry any insurance covering or
affecting the Premises. Lessee assumes the risk of any loss, damage, or claims
throughout the Term and the Authority must be named as an additional insured as
described on Exhibit E.
8.3 Failure to Maintain Insurance. If Lessee fails or refuses to provide a copy
of the renewal insurance certificates, in compliance with the Insurance Requirements
attached as Exhibit E, or Lessee otherwise fails or refuses to procure or maintain
insurance as required by this Lease, then Authority may, at Authority's election and,
subject to written notice to the Lessee, procure and maintain such insurance and the
same shall be due from Lessee as Additional Payments. The premiums paid by Authority
shall be due and payable from Lessee to Authority on the first day of the month following
the date on which the premiums were paid. Authority shall give Lessee written notice of
the payment of the premiums and state the amounts paid and the names of the insurer(s)
and insured(s). The lapse and/or cancellation of any insurance policy required under this
Lease, whether in whole or in part, is an event of breach, which cannot be cured unless
Lessee obtains a new or renewed policy that specifically provides the required coverage
to Authority for any liability arising during the lapsed or uncovered period within two (2)
calendar days of the lapse or cancellation.
8.4 Increases in Coverage. Authority may increase the amount of insurance
coverage and/or change these Insurance Requirements by the Authority Board policies,
to be consistent with other similar ground leases and shall do so by giving Lessee at least
sixty (60) calendar days' prior written notice of the increase or change.
ARTICLE 9 -TERMINATION AND SURRENDER
9.1 Personal Property. Upon the expiration or earlier termination of this Lease,
Lessee shall peaceably and quietly leave, surrender, and yield up to Authority the
Premises in a broom-clean condition and free of occupants. Lessee shall repair all
damage to the Premises caused by or resulting from the removal of any trade fixture or
other personal property, normal wear and tear excepted. The fuel island canopy(ies),
signage (including any fuel pump wraps and/or any other identifying displays) and UST
System with related product lines and pumps are all deemed to be personal property of
Lessee for purposes of this Lease. Any personal property left on the Premises after the
expiration or termination of this Lease shall be deemed abandoned property and title shall
automatically be conveyed to Authority. Authority may retain the property or dispose of it
in any manner Authority sees fit. If any such property, or any part thereof, is sold, then
Authority shall receive and retain the proceeds of the sale free of any claim or interest by
Lessee or any other person. Lessee shall pay to the Authority any and all costs incurred
to remove the abandoned property and to repair all damages caused thereby.
Notwithstanding the foregoing or anything to the contrary contained herein, but without
limiting any remedies of the Authority for default by Lessee under Article 24, in no event
shall the Authority have, and the Authority hereby expressly waives, any and all rights or
claims to a security interest in any of Lessee's personal property now or at any time
located at or on, or otherwise used in connection with Lessee's operations at, the
Premises.
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9.2 Title to Improvements. As set forth in Article 14.7.2 hereof, at the Authority's
sole option and election, any Lessee Improvement erected or installed by Lessee after
the Effective Date shall become the property of the Authority upon expiration or earlier
termination of this Lease and any Option Period(s), without the requirement of any deed,
conveyance, or bill of sale. However, if Authority requires any document to confirm its
ownership of the Lessee Improvements, then Lessee shall execute, acknowledge, and
deliver the required documents in a form acceptable to Authority. Notwithstanding the
foregoing, the Authority reserves the right to require Lessee to remove any Lessee
Improvement from the Premises upon the expiration or earlier termination of this Lease
and restore the Premises to its original condition.
9.3 Removal and Demolition of Improvements. Except as required by Article
14.7.2, Lessee shall not remove or demolish, in whole or in part, any Improvements on
the Premises that do not remain Lessee's property upon the expiration or earlier
termination of this Lease, without the prior written approval of the Authority which may, at
its discretion, condition such approval upon the obligation of Lessee to replace the same
by an improvement of at least equal value and utility.
9.4 Dangerous Conditions. Within thirty (30) calendar days after the expiration
or earlier termination of this Lease, Lessee shall correct any dangerous or unsafe
condition on the Premises. After the Term or any earlier termination of this Lease, Lessee
may only enter the Premises with Authority's prior written approval and only to the extent
necessary to correct and/or remove the dangerous or unsafe condition and for no other
purpose whatsoever.
9.5 Survival of Provisions. The provisions of this Article shall survive the
expiration or earlier termination of this Lease.
ARTICLE 10 - FACILITY ASSESSMENT
Facility Assessment. Prior to January 1, 2037 but no later than July 1, 2037, the
Lessee shall provide the Authority a"Condition Assessment Report"of the Premises and
Lessee Improvements thereon, prepared by either a licensed contractor, engineer, or
architect, and who is licensed to do business in the State of North Carolina ("A/E"). This
Condition Assessment Report shall address the current condition, the contractor's or
A/E's professional opinion of the useful life remaining of the structures and systems of
Lessee Improvements, and the contractor's or A/E's professional opinion of repairs,
replacements, or refurbishments recommended to maintain the operationally useful
state and condition of the Premises. The Condition Assessment Report shall primarily
focus on major structural systems and components of the Lessee Improvements,
including but not limited to: pavements, utilities, building structures, roofs, and
heating/ventilation/air conditioning (HVAC), plumbing, and electrical systems. The
Condition Assessment Report shall be updated one (1) year prior to termination of the
Lease, and the Parties shall meet to discuss and agree upon the time period of any
items required to be repaired or replaced by the Lessee based on the Condition
Assessment Report.
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ARTICLE 11 - ENVIRONMENTAL
11.1 Environmental Assessment. In June 2021, a Phase 1 Environmental Site
Assessment completed by ECS Southeast LLP on the Premises ("Phase I Assessment").
The Phase I Assessment was prepared in accordance with federal regulations and the
standards of the American Society of Testing and Materials (ASTM) El 527-13, Standard
Practice for Environmental Assessments. The Environmental Site Assessment is
incorporated herein by this reference. In addition, a Stormwater Soil Evaluation Report
was completed on the site by S&ME, Inc., was completed in December 2021. The Lessee
has been provided a copy of both of these reports. The Lessee shall have the right to
perform Environmental Studies as defined in Article 2.3 and such Environmental Studies
shall be certified in favor of the Authority.
11.2 Environmental Exit Audit.
11.2.1 In the event that the Authority informs Lessee that it wishes to retain
Lessee's UST System pursuant to Section 14.7.2, then within 180 days prior to
expiration or earlier termination of this Lease, the Lessee, shall conduct and pay
for an environmental audit of the Premises, in accordance with federal regulations
and the standards of the American Society of Testing and Materials (ASTM)
E1527-13, Standard Practice for Environmental Assessments, ("Exit Audit") to
determine: (a) the environmental condition of the Premises; (b) whether any
Hazardous Materials Release has occurred during the Term of this Lease on or
about the Premises; and; (c) whether there is evidence of any violation of
applicable Environmental Law or the environmental provisions of this Lease. The
scope of the Exit Audit may be more extensive than that of the Initial Audit, if the
Authority has reason to believe that there has been a Hazardous Materials Release
or a violation of the environmental provisions of this Lease, or a violation of any
Environmental Laws.
11.2.2 In the event that the Authority informs Lessee that it does not wish to
retain Lessee's UST System pursuant to Section 14.7.2, then within no less than
sixty (60) days after the expiration or earlier termination of this Lease, Lessee will
remove (and is expressly entitled to remove) Lessee's UST System and shall
backfill and repave to level grade any areas disturbed by such removal.
Notwithstanding anything herein to the contrary, and unless Lessee has removed
Lessee's UST System earlier, Lessee agrees that it shall pay a monthly license
fee to the Authority during such sixty (60) day period (or such shorter period as
Lessee actually requires to remove Lessee's UST System) equal to the monthly
Ground Rent being paid by Lessee to the Authority during the last month of the
Term. The removal shall be done in a good and commercially reasonable manner
and in compliance with all Environmental Laws applicable to the Premises and
Lessee shall provide to the Authority a copy of the UST Closure Report as
completed by a certified tank removal specialist, certifying that Lessee's UST
System, monitoring wells, and all other equipment and improvements used in
connection with the Lessee's Improvements have been properly removed. If
during the course of Lessee's removal, it is determined that a Release had or has
occurred as a result of Lessee's use of the Premises, Lessee shall remediate the
Release and related contamination in accordance with applicable Environmental
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Laws and obtain a "no further action letter" issued by NCDEQ. In the event that a
Release has occurred, Authority acknowledges that Lessee may be required by
applicable law to monitor certain environmental aspects of the Premises after the
expiration of the Term. Lessee, and its agents and employees shall,
notwithstanding the expiration of the Term, retain the right to have access to the
Premises for no additional charge or rent on a limited basis and as may be
reasonably necessary for Lessee to comply with such applicable Environmental
Laws so long as (i) such continued access does not prevent the Authority from
using the Premises, and (ii) any monitoring equipment to be located within the
Premises shall only be located in locations that do not interfere with the use of the
Premises, In the event as such continued access does prevent the Authority from
using the Premises, and/or any monitoring equipment to be located within the
Premises shall only be located in locations that interfere with the use of the
Premises, then a rent shall be due by Lessee to the Authority based on mutual
agreement. Lessee shall also be permitted to take soil, air and/or water samples
at the Premises as necessary or appropriate in connection with any such
monitoring activities. Exercise of the foregoing rights of access and sampling shall
be subject to the following: (1) Lessee shall promptly repair any damage to the
Premises caused by its activities, (2) such activities shall be required for Lessee
to comply with applicable Environmental Laws, (3) Lessee shall indemnify and hold
harmless Authority from and against any and all bodily and personal injury, loss,
claims or damages to any person or property caused by or arising out of Lessee's
exercise of the rights of access and sampling at the Premises, and (4) Lessee's
other obligations under this Article 11, as shall be expressly applicable thereto.
11.3 Environmental Audit. Upon reasonable written notice to Lessee, but no less
than five (5) days' prior written notice except in the event of an emergency, the Authority
may conduct or cause to be conducted through any third party that it selects, an
environmental audit or other investigation of Lessee's operations to determine whether
Lessee has breached its obligations under this Lease. Lessee shall pay all costs
associated with said investigation if such investigation shall disclose any such breach by
Lessee.
11.4 Hazardous Materials.
11.4.1. Definitions. As used herein, the following terms shall have the
meanings hereinafter set forth:
11.4.1.1. "Environmental Laws" shall mean any federal, state, local
or administrative law, rule, regulation, order, or requirement relating to
industrial hygiene, environmental conditions, or Hazardous Materials,
whether now in effect or hereafter adopted.
11.4.1.2. "Hazardous Materials" or"Hazardous Material" shall mean
any material that, because of its quantity, concentration or physical or
chemical characteristics, is deemed by any federal, state, or local
governmental authority to pose a present or potential hazard to human
health or safety or to the environment. "Hazardous Material(s)" includes,
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without limitation, any material or substance defined as a "hazardous
substance," or "pollutant" or "contaminant" pursuant to the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, also
commonly known as the "Superfund" law, as amended (42 U.S.C. Sections
9601 et seq.) ("CERCLA"), or pursuant to the General Statutes of North
Carolina, or any waste which conforms to the criteria for hazardous material
adopted by the Authority; any asbestos and asbestos containing materials;
lead based paint; petroleum, including crude oil or any fraction thereof;
natural gas or natural gas liquids; and any materials listed as a hazardous
substance in the Authority's rules and regulations.
11.4.1.3. "Release" when used with respect to Hazardous Materials
shall include any actual or imminent spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping, or
disposing into or on any property or part of the Premises.
11.5. Storage Tanks. Above-ground refueling storage tanks will not be permitted
on the Premises (this includes special enclosure equipment). Lessee shall comply at all
times during this Lease with all local, state, federal and Airport ordinances, rules,
regulations and orders applicable to the construction, operation, maintenance, removal
or closure, and remediation of storage tank systems, including Lessee's UST System,
and fuel pumping stations and facilities, including, without limitation, all applicable
regulations of the EPA and NC DEQ. In addition, all storage tank systems, including
Lessee's UST System, shall meet or exceed existing tank standards promulgated by the
American Petroleum institute and industry standards.
11.6 Lessee's Agreement. Lessee agrees that neither it nor its officers, agents,
employees, contractors, subcontractors, sublessees, licensees and/or invitees shall
cause any Hazardous Materials to be brought upon, kept, used, stored, generated or
disposed of in, on or about the Premises, or transported to or from the Premises; unless
customarily used with a Convenience Store and gas service station operations so long as
such use is in strict compliance with all applicable Environmental Laws and the Authority's
rules and regulations.
11.7 Environmental Indemnity. Lessee shall indemnify, defend and hold
harmless the Authority from and against any and all loss, damage, cost or expense
(including attorney's fees) arising during or after the Term of this Lease as a result of or
arising from (i) a breach by Lessee of its obligations contained herein, or (ii) any Release
of Hazardous Materials from, in, on or about the Premises caused by intentional or
unintentional act or omission of Lessee, its officers, agents, employees, contractors,
subcontractors, sublessees, licensees or invitees.
11.7.1 Limitation of Lessee's Environmental Liability. Notwithstanding the
foregoing or anything to the contrary contained herein, Lessee shall have no obligation
to indemnify the Authority for any environmental condition, or the storage, release or
disposal of any Hazardous Materials, (a) existing or occurring at, on, beneath or around
the Premises prior to the earlier of (i) the Lease Commencement Date, (ii) Lessee's
installation of Lessee's UST System or (iii) the Authority's delivery of possession of the
Premises to Lessee, or (b) conclusively shown to have been solely caused by the
Page 27 of 68
IE

Authority or an unrelated third party who is not accessing, using and/or occupying any
portion of the Premises with Lessee's consent or approval (express or implied) or
otherwise under Lessee (provided that Lessee shall not exacerbate, contribute to or
worsen any such existing environmental condition or Hazardous Materials), expressly
excepting from all of the foregoing, any environmental condition, or the storage, release
or disposal of any Hazardous Materials conclusively shown to have been solely caused
by the Lessee or an unrelated third party who is accessing, using and/or occupying any
portion of the Premises with Lessee's consent or approval (express or implied) or
otherwise under Lessee (provided that the Authority shall not exacerbate, contribute to or
worsen any such existing environmental condition or Hazardous Materials).
11.8 Survival of Provisions. The provisions of this Article shall survive the
expiration or earlier termination of this Lease. This Article does not extend the Term of
this Lease after it has expired or been terminated.
ARTICLE 12 -- MAINTENANCE AND REPAIRS
12.1 Maintenance and Repairs. Lessee shall, at its sole cost and expense,
maintain the Lessee Improvements and Premises in first-class condition and, at all times,
in a clean, safe, and orderly condition and appearance including all Improvements,
landscaping, and personal property of the Lessee pursuant to the provisions of this Lease,
and in accordance with all applicable laws and regulations whether now or hereafter
enacted. Such maintenance and repairs shall include, but not be limited to the electrical,
lighting, signs, driveways, fences, sidewalks, curbs, interior and exterior, structural, and
nonstructural, ordinary, and extraordinary, and pest and wildlife control on the Premises.
12.2 Drainage. Lessee and Authority will finalize the design and location for the
stormwater system ("SW System") for the Premises during the Due Diligence Period.
Lessee shall, at is sole cost, build the SW System. During the Lease Term, maintenance
and repair obligations for the SW System shall be determined during the Due Diligence
Period to determine any cost sharing participation between the parties. Lessee may not
alter or obstruct established drainage over the Premises unless adequate drainage is
provided and approved in writing in advance by the Authority and any governmental
authority having jurisdiction over the Premises. Any alteration of established drainage
must comply with applicable governmental requirements. For the purpose hereof,
established drainage means the natural drainage or any previous alteration thereof that
has been approved by the Authority. Approval of any alteration or obstruction of
established drainage shall not relieve Lessee from being responsible for the alteration or
obstruction from any liability to other persons that might result therefrom. Lessee shall not
be responsible at its expense for any unreasonable drainage issues created by the
Authority or any parties retained by the Authority during construction following the initial
construction of the Relocated Parking and Additional Parking.
12.3 Erosion and Lateral Support. Lessee shall maintain on the Premises
sufficient landscaping and other materials and devices to prevent erosion of the Premises
or of any adjacent parcels. Lessee may not perform any excavation on the Premises that
might result in the loss of lateral support to any adjacent parcels.
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ARTICLE 13 - COMPLIANCE WITH LAWS
13.1 General. Lessee and its agents, employees, representatives, contractors,
licensees, and invitees and any other person whom Lessee controls or has the right to
control shall comply with all present and future federal, state, and local laws, rules,
regulations, ordinances, orders, and directives and all other jurisdictions and agencies
that may apply to this Lease or Lessee's activities under this Lease, on the Premises.
Lessee shall, upon Authority's request, furnish Authority with a copy of all permits,
licenses, and other evidence of compliance with these laws.
13.2 Additional Terms and Conditions. Lessee agrees that the Premises is
owned by the Authority and as such, is part of the national transportation system and is
operated for the benefit of the public and is, from time to time, the recipient of federal
funds. As a recipient, Authority is obligated to make certain assurances to the FAA or
other federal agencies that Authority is in compliance with the requirements of federal
law, which requirements also become the obligation of Authority's contracting parties.
Lessee shall comply with all requirements set forth herein.
13.3 Compliance with Environmental Laws. In addition to the requirements of
Article 11, Lessee shall, at its expense, comply with all present and subsequently enacted
environmental laws, and any amendments thereto, affecting Lessee's use or occupancy
of the Premises, including those set forth in the provisions of this Article and Article 11,
which such provisions shall survive the expiration or earlier termination of this Lease.
13.4 Certificate of Occupancy. Lessee shall obtain any certificate(s) of
occupancy with respect to all Lessee Improvements constructed upon the Premises that
may at any time be required by any governmental agency with jurisdiction, and Lessee
shall provide a copy or copies to the Authority and as set forth in this Lease.
13.5 Construction. As set forth in Article 14 and otherwise in this Lease,
Lessee's construction and installation of all Lessee Improvements and the development
of the Relocated Parking and Additional Parking must be in strict compliance with all
applicable federal, state, and local land use regulations, codes, and laws affecting the
development, improvement, occupancy, and use of the Premises.
13.6 As required by North Carolina law, and in no way superseding the
acknowledgment of Lessee's acceptance if the Premises in its as-is and where-is
condition as set forth in Article 3.3, Authority hereby includes the following notification(s)
as part of this Lease:
RADON GAS: Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risks to persons who
are exposed to it over time. Levels of radon that exceed federal and state guidelines
have been found in buildings in North Carolina. Additional information regarding radon
and radon testing may be obtained from the county health unit applicable to the Premises.
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13.7 The requirements of compliance otherwise set forth in this Article 13 are
intended to be general and broad in nature. To the extent any other provisions of this
Lease contain more guidelines and requirements for compliance, the more strict and
detailed provisions of this Lease shall control.
ARTICLE 14 - CONSTRUCTION OF LESSEE IMPROVEMENTS
14.1 Description of Project. Lessee shall design, build, finance, construct and
manage the Lessee Improvements, investing a minimum of $7,000,000. The Lessee
Improvements shall be completed within thirty (30) months of the Lease Effective Date
(the "Construction Completion Date"), subject to (i) Article 32, or (ii) unless this Lease is
terminated during the Due Diligence Period.
14.1.2 Relocated Parking, Right of Way Access. Lessee will finance and
fund the planning, design, permitting, and construction of Lessee's Right of Way Access
and Relocated Parking.
14.1.3 Additional Parking. The Authority hereby agrees to pay all costs
associated with the Additional Parking, with such costs being agreed to in advance by the
Authority. On behalf of the Authority, Lessee will finance and fund the planning, design,
permitting, and construction of the Additional Parking ("Additional Parking Costs").
Lessee will provide the Additional Parking Costs to the Authority for review and written
approval, whereupon Lessee will be reimbursed by Authority for such approved Additional
Parking Costs associated for the Additional Parking. All such Additional Parking Costs
shall be paid either as a Ground Rent credit or reimbursement of the Additional Parking
Costs paid by Lessee.
14.2 Planning, Design and Construction of Lessee Improvements, Relocated
Parking, and Additional Parking. Lessee or its designated representatives, including the
contractor(s) and the consultants, shall meet with Authority for a pre-design meeting to
discuss the Project, applicable criteria and standards, schedule, utility requirements, etc.
Lessee shall design and construct the (i) Lessee Improvements on the Premises, and (ii)
Relocated Parking, Additional Parking and Right of Way Access on the Adjacent Authority
Property, all subject to the Authority's express approval of Lessee's proposed Project
plans and specifications ("Plans"). Any proposed changes of the Plans prior to or during
construction that would require modifications and/or updates to a permit(s) or site plan(s)
and/or submission to any government agency shall be submitted to the Authority for
review and approval in advance of any such change. All construction shall adhere to the
Plans and terms of this Lease, and to any additional design and construction standards,
and any other applicable regulations, codes and requirements set out by Authority, or any
governmental agency having jurisdictional authority, including the FAA. Project Plans and
specification review submittals shall be provided to Authority at 30, 60, and 90 percent
design, and the Authority shall provide comments, as applicable, on each submittal. Upon
the Authority's reasonable request, the Lessee shall provide additional or supplemental
submittals, as may be reasonably required, to fully understand the proposed Lessee
Improvements. Authority reserves the right to observe the work from time to time,
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however this shall not take away from the Lessee's responsibilities or place any burden
on the Authority to ensure compliance. Neither Authority nor anyone working under or
through it shall unduly interfere with or delay the Lessee's work.
14.2.1 Lessee expressly agrees for itself, its successors, and assigns to:
14.2.1.1. File a notice consistent with requirements of FAR Part 77
(FAA Form 7460-1) prior to constructing any facility, structure or other item
comprising the Lessee Improvements on the Premises; and,
14.2.1.2. Only commence vertical construction and/or activation of any
radio frequency transmitting antenna following formal FAA notification of a
"Favorable Determination of No Hazard,"and with no "Notice of Presumed Hazard
(NPH) determinations" as defined by the FAA; and,
14.2.1.3. Administer and observe on-site construction and/or design
professionals to ensure compliance with the approved plans and specifications.
14.3 Construction Standards. All construction activities engaged in upon the
Premises, shall conform to (i) the minimum standards specified by the applicable
governmental building codes in effect at the time of such construction, (ii) all other rules,
regulations, requirements, ordinances and laws, including but not limited to, such
regulations and requirements relating to soil, sedimentation and erosion control of any
local, state or federal governmental unit(s) or authority(ies) having jurisdiction thereof,
and (iii)the Development Guidelines in effect at the time of such construction. Throughout
the course of such construction activities, Lessee shall be responsible for maintaining the
Premises in as clean, safe, and orderly a condition as the nature of such construction
permits, shall insure that equipment utilized for such construction, if required to remain
overnight, is parked or stored entirely within the boundaries of the Premises and upon
completion of construction activities (or more immediately if damage is such as to
materially impair the use of a driveway, roadway or parking area) shall repair, restore
and/or reconstruct any damage to any adjoining property, including improvements,
driveways, roadways, landscaped areas, parking areas and street and parking lot lighting
caused by such construction activities. All grading activities shall be conducted, and all
slopes or gradients required to be maintained on the Premises shall be so maintained,
entirely within the boundaries of the Premises. Lessee agrees to proceed diligently to
complete the Lessee Improvements, Relocated Parking, Additional Parking and Right of
Way Access, and shall not delay or abandon its construction until it is complete and shall
be completed prior to the Construction Completion Date.
14.4. Plans and Permit Approvals. Approval of the Plans described in this Article
14 shall not be deemed any approval of zoning codes, building codes, or any other
approvals required by the Authority, the FAA and/or any other agencies having
jurisdictional authority for the enforcement of codes applicable to the Premises. Lessee
shall indemnify and hold the Authority harmless for any liability for regulatory or
governmental approvals or the failure to obtain the same for any Lessee Improvements.
Lessee shall be responsible for obtaining all permits and approvals required for the
construction, maintenance, operation and use of all facilities and Lessee Improvements
on the Premises. Lessee shall coordinate the construction of the Lessee Improvements,
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Relocated Parking, Additional Parking and Right of Way Access with the Authority
providing time schedules for completion of each of the projects comprising the total
Project.
14.5 Bonding Requirements. Lessee shall post bonds and pay for all materials
and labor as required by Authority and/or applicable county regulations and North
Carolina law for any Lessee Improvements constructed and/or installed on the Premises
by Lessee. Lessee shall provide a performance bond(s) and a payment bond(s) in an
amount equal to construction costs, and all bonds must be provided prior to start of any
work and must include Lessee and Authority as "obligees," Bonds must comply with the
requirements set forth in North Carolina Statutes and shall include the following: (a)
completion of the construction of any Lessee Improvements; (b) performance of any
construction required under this Lease; and (c) payment of all labor and materials,
assuring the Authority that the construction of any Lessee improvements shall be
completed and all contractors and subcontractors shall be paid. Each bond shall be in a
form acceptable with the Authority and the surety company providing the bonds must
have an A.M. Best Rating of B+ VI or better for the past four (4) consecutive quarters.
14.6 Utility Services for Construction Project. Lessee agrees, at its own
expense, to connect to all utility providers as are necessary to secure the services that
Lessee desires and requires for the Premises and Lessee Improvements.
14.7 Completion Requirements.
14.7.1. Workmanship. Lessee will construct the Lessee Improvements in
a good, careful, proper, commercially reasonable and workmanlike manner and
according to: (i) the approved Plans; and (ii) all provisions of law and all permits
and authority required by any federal, state, or local law, rule, regulation, or
ordinance or by any authority having jurisdiction over the Premises.
14.7.2. Ownership of Buildings and Lessee Improvements. Lessee shall
hold title to all Lessee Improvements it constructs or installs on the Premises,
including its UST System, subject to all other provisions of this Lease, excluding
the Relocated Parking, Additional Parking, Right of Way Access and roadways.
On the expiration or earlier termination of this Lease and as set forth in Article 9.2,
Lessee shall, in addition to Lessee removing Lessee's UST System, demolish all
Lessee Improvements and deliver the Premises to the Authority in a rough-graded
condition at the approximate grade at which Lessee operated upon the Premises.
Notwithstanding the foregoing, in the event the Authority desires that the Lessee
Improvements remain on the Premises, then the Authority shall deliver written
notice to Lessee within thirty (30) days after Lessee sends written notice to the
Authority that Lessee is electing not to renew the Term, or (ii) ninety (90) days prior
to the expiration of the Term and/or any Option Periods. In the event that the
Authority so notifies Lessee that the Lessee Improvements shall remain on the
Premises, then on the expiration or earlier termination of this Lease and as set
forth in Article 9.2, all Lessee Improvements, exclusive of trade fixtures and other
personal property of Lessee and its sublessees, shall, without the payment of
compensation to Lessee or others, become the property of Authority free and clear
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of all claims and encumbrances by Lessee and anyone claiming by, under, or
through Lessee. All pipes, wells, pumps, tanks, and other equipment installed on
the Premises by Lessee, including its UST System (subject to Article 11.2), shall
be left in a structurally sound, non-leaking condition so as not to become the source
of any future environmental Release, contamination, or hazard, and if such cannot
be rendered in such condition, they shall be removed by Lessee. Lessee shall
defend, indemnify, and hold Authority harmless from and against all liability and
loss that may arise from the assertion of any claim and any encumbrance on any
Lessee Improvement arising from acts that occurred prior to the expiration or
earlier termination of this Lease; provided, however, that Lessee's duty to
indemnify and hold harmless shall not apply to any claim or encumbrance that is
solely attributable to the acts or omissions of Authority. Lessee shall assign to
Authority, and Authority shall be entitled to the benefit of, any license, warranty,
and guarantee applicable to all equipment, systems, fixtures, and personal
property conveyed or otherwise transferred to, or for the benefit of, Authority under
this Lease. Title to the Lessee Improvements shall not vest in Authority, if
applicable, until they have been inspected by Authority and determined not to
present a potential environmental hazard. Lessee's obligations under this Article 1
shall survive the expiration or earlier termination of this Lease.
14.7.3. Certificate of Occupancy. Within forty-five (45) calendar days
following issuance of final Certificate of Occupancy for the Lessee Improvements
("COO"), the Premises shall be cleaned, construction debris and stored materials
removed, property damage repaired or replaced, final landscaping completed, and
all construction equipment and stored materials removed from Premises; and a
copy of the COO shall be submitted to the Authority.
14.7.4. As-Builts. By no later than thirty (30) calendar days after
completion of any Lessee Improvements, Lessee shall furnish the Authority with
one (1) complete set, on computer disc in AUTOCAD, of detailed record drawings
of the work completed.
14.7.5. Completed Construction. Upon completion of the Lessee
Improvements, Relocated Parking, Additional Parking and Right of Way Access,
Lessee shall deliver to Authority a final lien waiver and a letter, in substantially the
form attached hereto as Schedule 14.7.5 and incorporated herein by reference,
stating:
A. The improvements have been completed in accordance with the
approved Plans and specifications, and all applicable zoning and
permitting requirements;
B. The Improvements have been completed in a good and skilled manner;
C. No liens have been filed, nor is there any basis for the filing of such
liens with respect to the Improvements; and
D. The final cost of construction for the Lessee Improvements, Relocated
Parking, Additional Parking and Right of Way Access.
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14.7.6. Inaccurate or False Certifications. Inaccurate or false
certifications provided to Authority by Lessee shall be a breach of this Lease which
the Parties agree may only be remedied by specific performance whenever
discovered. Lessee's obligation to cure deficiencies in the improvements to the
Premises by performance in a good and skilled manner shall survive this Lease.
ARTICLE 15 - PORTABLE STORAGE CONTAINERS/STRUCTURES
15.1 Unless specifically approved in writing, and only under conditions specified
by Authority, Lessee shall not place or allow to be placed upon Premises, any type of
portable storage container, trailer, unit, box, barrel or other similar vessel to store
merchandise and/or equipment and supplies outside of any enclosed permanent
building or structure. Unless specifically approved and only under conditions specified
by Authority, Lessee shall not place or allow to be placed upon Premises, any type of
portable or temporary structure, trailer, mobile home, modular structure, or device.
ARTICLE 16 - COOPERATION WITH AUTHORITY DEVELOPMENT
Lessee understands and agrees that Authority may pursue development,
improvements and maintenance activities from time-to-time that may directly or indirectly
affect the Premises and other areas of the Airport and Authority-owned property. Lessee
agrees to work cooperatively and in good faith with the Authority and other lessees and
contractors in development, improvement and maintenance activities to minimize or
mitigate any disruptions. If requested by the Authority, Lessee shall cooperate with the
Authority to the greatest extent possible (as necessary and at no cost to Lessee) in the
development and implementation of any plans, designs, ingress/egress, or transition that
may arise in connection with such Authority development, improvement, and
maintenance activities. Authority may temporarily or permanently close, re-route, and/or
consent to the closing or re-routing of any method of ingress or egress on the Authority-
owned property, so long as reasonable means of ingress and egress to the Premises are
maintained. Exercise by the Authority of any such development, improvement, or
maintenance shall be paid by Authority. Lessee shall not be entitled to any compensation
for loss of revenue, business interruption, relocation, temporary storage rental, additional
labor costs, or any other expense attributable to the development, improvement, or
maintenance on the Airport or Authority-owned property.
ARTICLE 17 - CONDITIONS OF AUTHORITY DEVELOPMENT
17.1 Reservation of Easements. In addition to other reservations stated herein,
including specifically Article 3, this Lease shall at all times be subject to the easement
reservations as outlined herein for the benefit of the Authority and for its use and
development of any Authority owned property.
17.1.1. Entry for Construction and Maintenance. Authority hereby reserves
to itself and its agents, contractors, employees, licensees, and invitees a
nonexclusive easement for ingress and egress over all portions of the Premises
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for the purposes of (i) construction, installation, repair, reconstruction, restoration,
landscaping, and maintenance of any improvement now or hereafter constructed
or installed on the Premises by the Authority or its designated developer and (ii)
performing any other obligation of Authority under this Lease, upon at least five (5)
days' prior written notice to Lessee. Authority will not use the easement in a
manner that unreasonably interferes with Lessee's use and enjoyment of the
Premises and this provision shall in no way be interpreted so as to obligate the
Authority to construct, install, repair, reconstruct, restore and/or maintain any
Lessee Improvements. In the event the Authority causes any damage in the use
of any ingress and egress, and the same is in no way caused by Lessee, then the
Authority shall repair any damage to substantially the same condition as existed
prior to the damage.
17.1.2. Utility and Stormwater Easements. Authority hereby expressly
reserves the right to easements upon, over, across, and under the Premises where
utilities and/or any stormwater systems are or are to be installed, provided that the
use of such areas or the grant of such easements does not unreasonably interfere
with Lessee 's operations and use of the Premises. If created and/or granted by
Authority, the easement(s) may grant to the providing utility rights for access to,
egress from, and to occupy and use the Premises subject thereto for the purposes
of installing, maintaining, repairing, servicing, enlarging, extending, modernizing,
and/or upgrading any utility located thereon for the benefit of the Premises, or
Authority owned property or Lessee or other person occupying any portion of the
Authority property. As used herein, utility means electricity, natural gas, water,
sanitary sewers, telephone, cable television, and other similar facilities of general
use and benefit commonly regarded as utilities.
17.1.3. Airport Avigation Easement. Authority hereby expressly preserves
and reserves unto to itself an assignable exclusive easement and right-of-way for
the free and unobstructed passage of aircraft in, through, and across the air space
above and over the Premises, together with the continuing right to clear and keep
clear the Premises of all obstructions infringing upon or extending into or above an
imaginary line, the extension, distance, and height of which are prescribed in FAA
Regulation Part 77, 14 C.F.R. 77, as it may be amended, and for this purpose to
cut and remove underbrush and soil and to demolish and remove buildings or any
other structures and obstructions infringing upon or extending into or above the air
space above the imaginary line, and the right to cut the ground cover, remove,
clear, and keep clear all trees that extend above a point ten (10) feet below the
imaginary line, whether any structure or obstruction is located on or extending into
or over so much of the Premises that lies below such imaginary line; this is
expressly reserved together with the right of ingress and egress for the purpose of
effecting and maintaining such clearance; and including the right in the air space
to allow such noise as may be inherent in the operation of aircraft now known or
hereafter used for navigation or flight in the air. Lessee's use, rights, and privileges
in the Premises may not interfere with or abridge the rights hereby reserved.
Included within this easement is the right to cause or permit in the air space such
noise, smoke, fumes, droppings, and vibrations as may be inherent in the
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operation of aircraft now or hereafter used for navigation of or flight in the air using
the air space for landing at, taking off from, or operating at the Airport.
17.1.4 Reference to Easements Not Required. Any easement provided for
or reserved in this Lease shall be appurtenant to and pass with the leasehold
interest in the Premises or any portion thereof, whether or not specifically referred
to in any instrument granting or conveying any such interest.
ARTICLE 18 - INDEMNIFICATION
18.1 General Indemnification.
18.1.1. Lessee agrees to indemnify, defend and hold completely harmless
the Authority, and its members (including, without limitation, members of the
Authority's Board), officers, employees and agents of each, from and against all
liabilities (including, without limitation, liability under the Comprehensive
Environmental Response, Compensation and Liability Act, 42 USC Section 9601,
et seq., or any other federal, state or local environmental statute, ordinance
regulation or rule), losses, suits, claims, demands, judgments, damages, fines,
penalties, costs and expenses (including all costs for investigation and defense
thereof, including, but not limited to, court costs, expert fees and reasonable
attorneys' fees prior to institution of legal proceedings and at both trial and
appellate levels), which may be incurred by, charged to or recovered from any of
the foregoing (i) by reason or on account of damage to or destruction of any
property of the Authority, or any property of, injury to or death of any person
resulting from or arising out of the use, occupancy, or maintenance of the Premises
or any improvements thereto, of Lessee's operations thereon, or the intentional or
unintentional acts or omissions of Lessee's officers, agents, employees,
contractors, subcontractors, invitees or licensees, regardless of where the
damage, destruction, injury or death occurred, unless such liability, loss, suit,
claim, demand, judgment, damage, fine, penalty, cost or expense was proximately
caused solely by Authority's negligence or by the joint negligence of Authority and
any person other than Lessee or its officers, agents, employees, contractors,
subcontractors, invitees or licensees, and/or (ii) arising out of the failure of Lessee
to keep, observe or perform any of the covenants or agreements in this Lease to
be kept, observed or performed by Lessee. The provisions of this Article shall
survive the expiration of earlier termination of the Term of this Lease with respect
to any acts or omissions occurring during the Term of this Lease.
18.1.2. The foregoing provisions of this Article are not intended and shall
not be construed to limit in any manner whatsoever the protection or benefits to
which Authority otherwise would be entitled as an additional insured under any
liability insurance maintained or required to be maintained by Lessee under this
Lease.
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18.2 Additional Indemnifications
18.2.1. Without limiting Lessee's liability pursuant to Section 18.1 above,
Lessee shall assume, protect, defend, reimburse, and indemnify Authority, and
their respective past, present and future officers, members (including without
limitation all members of the governing board of Authority,) and their respective
employees and agents, and each of them, and shall hold each and all of them
harmless at all times from and against any and all liabilities for compensation under
any workers' compensation statute arising out of an injury or injuries sustained by
any employee or other worker of Lessee. Lessee also covenants that it shall cause
its licensees, contractors, and subcontractors to maintain in effect at all times
workers' compensation insurance as required by law and/or this Lease.
18.2.2. Without limiting the generality of any other provision hereof, Lessee
shall reimburse Authority for any and all reasonable attorney's fees and
investigation expenses incurred by Authority in the defense and handling of said
causes of action, suits and claims and in enforcing the provisions of this Lease,
excepting those expenses incurred by Authority in the defense and handling of
said causes of action, suits and claims resulting from the gross negligence or willful
act or omission of Authority.
18.2.3. Lessee hereby expressly waives and releases any cause of action
or right of recovery for compensation for any and all loss or damage sustained by
reason of any fire, defect, deficiency or impairments of any of the services in or to
the Premises, including, but not limited to, electrical power, gas, telephone service,
steam, heating, air conditioning, water supply, drainage or sewage systems, or
from wires leading to or inside of any space or structure, or by reason of any loss
resulting from the failure of any such system or facility unless such loss or damage
is proximately caused by the negligence or willful misconduct of Authority or its
officers, agents or employees.
18.2.4. Lessee shall also indemnify, defend, and save Authority harmless
from and against any and all Claims that may be imposed upon, incurred by, or
asserted against Authority by reason of any of the following occurring:
18.2.4.1. Construction of any Improvements and/or other work
done in, on, or about the Premises or any part thereof by Lessee or its
agents, employees, representatives, contractors, licensees, or invitees;
18.2.4.2. Any use, nonuse, possession, occupation, alteration,
repair, condition, operation, maintenance, and/or management of the
Premises or any of the improvements or any nuisance made or caused
thereon or any failure by Lessee to keep the Premises or Improvements or
any part thereof in a safe condition;
18.2.4.3. Any act of Lessee or any sublessee of Lessee or any of
their respective agents, employees, representatives, contractors, licensees,
or invitees;
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18.2.4.4. Any fire, accident, injury (including death), or damage to
any person or property occurring in, on, or about the Premises or any
Improvement or any part thereof;
18.2.4.5. Any failure by Lessee to pay Rent, Additional Payments
or other payments required by Lessee under this Lease or to perform or
comply with any provision of this Lease to be performed or complied with
by Lessee, and the exercise by Authority of any right or remedy available to
Authority with respect thereto;
18.2.4.6. Any lien, claim, or Encumbrance against or on the
Premises or any Improvement or any part thereof or any of the assets of, or
funds appropriated to, Authority or any liability that may be asserted against
Authority with respect thereto to the extent arising out of the acts or
omissions of Lessee or its agents, employees, representatives, contractors,
licensees, or invitees;
18.2.4.7. Any failure by Lessee to keep, observe, comply with,
and perform any provision in any sublease or other agreement affecting the
Premises or any part thereof, on Lessee's part to be kept, observed, or
performed;
18.3 Risk of Loss. Lessee assumes the risk of damage to all goods, materials,
furniture, trade fixtures, equipment, machinery, and other personal property on the
Premises and saves Authority harmless from any loss or damage thereto by any cause
whatsoever.
18.4 Insurance. Lessee's obligations under this Article shall not be affected by
the absence of covering insurance or by the failure or refusal of any insurance carrier to
perform any obligation on its part to be performed under insurance policies affecting the
Premises, any of the Improvements, or any personal property on the Premises.
18.5 Lessee to Defend Authority. if any claim, action, or proceeding is made or
brought against Authority by reason of any event referred to in this Article, then, upon
demand by Authority, Lessee, at its expense, shall resist or defend the claim, action, or
proceeding in Authority's name, if necessary, by the attorneys for Lessee's insurance
carrier (if such claim, action, or proceeding is covered by insurance), otherwise by
attorneys approved by Authority. Notwithstanding the foregoing, Authority may hire its
own attorneys to defend itself or to assist in its defense and Lessee shall pay the fees
and costs of the attorneys.
18.6. Survival. Without in any way limiting any other provision on the subject
matter contained elsewhere in this Lease, Lessee agrees that all of Lessee's obligations
of indemnity specified in Article 18 hereof shall survive the expiration or termination of this
Lease.
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ARTICLE 19 - INSPECTION
19.1 Inspection and Entry. Provided, there is no disruption of Lessee's use or
operation of the Premises, the Authority may enter on the Premises and any part thereof
for the purpose of ascertaining its condition and whether Lessee is observing and
performing its obligations under this Lease. During the final twelve (12) months of the
Term, Authority may show the Premises to any prospective purchaser or mortgagee, all
without hindrance or interference from Lessee, provided that the entry does not
unreasonably interfere with Lessee's business operations and provided that Authority
gives Lessee at least twenty-four (24) hours' written notice prior to inspecting the interior
of any building.
19.2 Notice. The twenty-four (24) hour written notice provision shall not be
construed to prohibit or delay any entry by Authority in its capacity as a municipality
exercising its police power or in its criminal law enforcement capacity, or to any entry
authorized by any writ or warrant issued by any court, or to any entry authorized by any
health or welfare statute, code, ordinance, rule, or regulation. In case of an emergency,
1.
as determined by Authority, Authority may enter the Premises and any part thereof
without prior notice, if necessary.
ARTICLE 20 - IMPAIRMENT OF AUTHORITY'S TITLE
20.1 No Liens. Lessee shall not cause or allow any other person or entity to
cause any lien, cloud, charge, or encumbrance ("Encumbrance") to be filed, recorded, or
imposed on the Premises or any portion thereof, or on any Rent, Additional Payment, or
other income to Authority under this Lease. If an Encumbrance is filed, recorded, or
imposed, then Lessee shall cause it to be discharged and released within thirty (30)
calendar days after the date it was filed, recorded or imposed, or bonded, if applicable
and with the prior written approval of the Authority. Lessee shall not create or allow any
other person or entity to cause anything to occur that impairs Authority's right, title, and
interest in and to the Premises. Lessee shall indemnify, defend, and hold harmless
Authority from all claims, losses, demands, costs, expenses, attorney fees, and liability
related to or arising out of any Encumbrance.
20.2 Discharge. If any Encumbrance is filed, recorded, or imposed against the
Premises or any portion thereof, then Lessee, within thirty (30) calendar days after the
filing, recording or imposition, shall cause the Encumbrance to be discharged of record
by payment, deposit, bond, order of a court, or such other means legally sufficient to
resolve and/or clear the Encumbrance. Lessee shall notify Authority in writing of its action
to satisfy or contest the Encumbrance and, if contested, of the matter's status monthly
until concluded. If Lessee fails to cause the Encumbrance to be discharged within the
thirty day period, then, in addition to all other rights and remedies, Authority may
discharge the Encumbrance by paying the amount claimed to be due or by procuring the
discharge by deposit or bonding; any amount paid by Authority and costs and expenses
incurred by Authority in connection with the Encumbrance shall constitute an Additional
Payment payable by Lessee to Authority on demand.
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20.3 No Implied Consent. Nothing in this Lease may be deemed or construed in
any way as constituting Authority's express or implied authorization, consent, or request
to any contractor, subcontractor, laborer, materialman, architect, or consultant for the
construction or demolition of any of the Improvements, the performance of any labor or
services or the furnishing of any materials for any of the Lessee Improvements, alteration
to, or repair of the Premises or any part thereof.
20.4 No Agency Intended. Lessee agrees that it is not the agent of Authority for
the construction, alteration, or repair of any of the Lessee Improvements that Lessee may
construct on the Premises.
20.5 Survival. Lessee's obligations under the provisions of this Article shall
survive the expiration or earlier termination of this Lease.
ARTICLE 21 - DAMAGE OR DESTRUCTION
21.1 General. In the event the Improvements are damaged or destroyed in whole
or in part by fire or other casualty, Lessee shall promptly notify the Authority of damage
or destruction to any building(s) or Lessee Improvements located on the Premises.
21.2 Restoration of Premises. Lessee shall, at its expense, promptly repair and
restore Lessee Improvements and/or the Premises, as applicable, to substantially their
condition prior to such damage or destruction (but with such design modifications as
Lessee may elect with Authority approval) so that the fair market value of the Lessee
Improvements and Premises are substantially equal to the value thereof immediately prior
to the casualty. Lessee shall comply, at its sole cost and expense, with all then existing
building codes and requirements in the performance of all repairs, replacements, and
restoration. Failure to maintain or receive sufficient insurance coverage shall in no way
limit or excuse Lessee's obligations hereunder.
21.3 Destruction Due to Risk Covered by Insurance. Subject to Section 21.7, if
at any time during the Term of this Lease, the Premises, or any Lessee Improvements on
the Premises are damaged from a risk covered by the insurance, such destruction shall
not terminate this Lease, but the Premises and all Lessee Improvements so damaged
shall be repaired, replaced, and restored to the condition prior to the damage.
21.4 Funds to Restore; Restoration Standards. All cost and expense of
restoration of the Lessee Improvements shall be paid by Lessee whether or not the
insurance proceeds are sufficient to accomplish such restoration. The restored or
replaced property shall be at least equal in value, quality, and use to the value, quality
and use of such damaged Improvements immediately before the casualty. Any
restoration, rebuilding, repair, and cleanup shall be at Lessee's expense and shall
comply with provisions of this lease.
21.5 No Proration or Abatement of Rent. There shall be no prorated Rent,
abatement, or reduction of Rent during any period of restoration or rebuilding.
21.6 No Duty to Protect. Protection against loss by fire or other casualty to any
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of the contents of the Premises shall not, at any time, be an obligation of the Authority.
21.7 Substantial Damage at End of Term. If fifty percent (50%) or more of the
square footage of the structural components of the Lessee Improvements on the
Premises are substantially damaged or destroyed by fire or other casualty during the
last three (3) years of the Term ("Casualty"), then the Parties shall each have the right
to terminate this Lease by delivery of written notice to the other within ninety (90)
calendar days of the Casualty. If either Party elects to terminate this Lease, then all
insurance proceeds on account of any damage or destruction under the policies of
insurance provided for in this Lease, less the costs, if any, incurred in connection with
the adjustment of the loss and the collection thereof, and all insurance proceeds arising
from Casualty shall be allocated as follows, first, to the cost to clean up and restore the
Premises to its pre-lease condition; and then, the remaining proceeds to the Authority;
provided, however, Lessee shall be entitled to insurance proceeds attributable to
Lessee's trade fixtures, furniture, equipment and other personal property, business
interruption and other components of insurance coverage not related to the permanent
portions of the Lessee Improvements. In the event, neither Party elects to terminate the
Lease, all Lessee Improvements will be restored to the conditions prior to the damage
and Casualty.
ARTICLE 22 - CONDEMNATION
22.1 If it shall be in the public interest, Authority shall have the power to condemn
the property interests created by this Lease even though it is itself a party to the Lease,
provided that this provision shall not be construed as a waiver by Lessee of its rights to
contest the validity of any such condemnation.
22.2 If the whole or any part of the Premises or Lessee Improvements shall be
taken or condemned by Authority or by any other condemning authority for any public use
or purpose, either through any proceeding or by settlement, the Lessee shall be entitled
to an award based on the taking of or injury to the Lessee Improvements within the
Premises covered by and subject to this Lease. Lessee reserves unto itself the right to
claim and prosecute its claim in all appropriate courts and agencies for an award or
damages for such taking based on upon Lessee's leasehold interest and Lessees rights
contained in this Lease, interruption of business, moving expenses, goodwill, and
Lessee's ownership of buildings alterations and improvements, including the Lessee
Improvements, and other damages available under applicable law.
ARTICLE 23 -ASSIGNMENT, SUBLEASE, MORTGAGE AND TRANSFER
23.1 No Assignment, Sublease, Mortgage, or Other Transfer shall occur without
Authority consent. This Lease is personal to Lessee. Except as provided herein, no part
of the Premises nor any Improvements on the Premises, nor any interest in this Lease,
may be sold, assigned, pledged, transferred, mortgaged, or subleased by Lessee, nor
may a right of use of any portion of the Premises be conveyed or conferred on any third
party by Lessee by any other means (all of the foregoing referred to in this Lease as a
"Transfer" or collectively "Transfers"), without the prior written consent of the Authority,
which consent shall not be unreasonably withheld, conditioned, or delayed.
23.2 Application, Article 23 shall apply to all Transfers, including any that may
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occur by operation of law. If Lessee is a corporation or other entity, any change in
ownership resulting in a change in the controlling interest in the stock of the corporation or
ownership interest in such other entity,through sale, exchange, merger, consolidation or
other transfer, shall be deemed a Transfer requiring the Authority's consent; provided,
however, that (i) Lessee may transfer this Lease without the consent of the Authority as
a result of a merger, reorganization, acquisition or consolidation of Lessee's business
entity with or into another business entity, provided that in any such case the assets of
the resulting entity are equal to or greater than the assets of Lessee immediately prior to
the transaction, and provided further that Lessee shall provide the Authority with prior
written notice of any such transaction; and (ii) Sheetz, Inc. may assign its interest in this
Lease to a wholly-owned subsidiary without the prior written consent of the Authority,
provided that any such subsidiary-assignee shall not have the right to further assign,
pledge or transfer or sublet its rights in this Lease except in accordance with the second
sentence of this Section 23.2.
23.3 Fee for Review of Requests for Transfers. The Authority reserves the right
to charge a fee for staff and legal time spent in the review of Lessee's requests for the
Authority's consent to any Transfer. This fee may be imposed by the Authority whether or
not consent is granted, but in no case shall exceed the usual fees charged by the Authority
for the review of requests for Transfer for similar lessees of the Authority.
23.4 Effect of Consent. No Transfer shall relieve Lessee of any obligation under
this Lease and Lessee shall remain fully liable hereunder unless a specific written release is
expressly given by the Authority in writing. Any consent by the Authority to a particular
Transfer shall not constitute the Authority's consent to any other or subsequent Transfer. If
consent is granted, Lessee shall provide a copy of the signed Transfer document to the
Authority promptly after execution. The Transfer document shall contain a provision
requiring that the transferee perform and observe all terms and conditions of this Lease and
shall provide that the Authority have the right to enforce such terms and conditions directly
against such transferee.
23.5 Unpermitted Transfer Void. Any Transfer or attempted Transfer without the
Authority's priorwritten consent or as otherwise permitted herein shall be void.
23.6 Transfer by the Authority. The Authority shall have the right to transfer its
interest in the Premises and/or in this Lease, in its sole discretion. In the event of such a
transfer, the Authority shall provide written notice to Lessee of the name and address of
the Authority's successor and Lessee shall attorn to said transferee and recognize
transferee as the new lessor under this Lease. Upon execution of any Transfer by the
Authority, the Authority shall be relieved of any and all obligations and duties accruing
from and after the date of the transfer provided only that the transferee agrees to assume
all obligations and duties of the Authority under this Lease.
23.7 Permitted Mortgage. Lessee shall be free to mortgage or otherwise
encumber its interest in this Lease, and the Lessee Improvements in connection with the
financing of the Lessee Improvements and in order to secure any other debt or obligation
incurred by Lessee for performance under this Lease. However, Lessee shall in no event
be permitted to create any lien or other encumbrance on the Authority's fee interest in the
Premises or the Authority's interest in this Lease. If requested by Lessee in writing, the
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Authority shall, within twenty(20) business days of the Authority's receipt of such request,
acknowledge in writing the recognition of any leasehold mortgagee and agree to
leasehold mortgagee protection provisions reasonably requested by the leasehold
mortgagee including, without limitation, agreeing to (a) give notice of any default to the
leasehold mortgagee and a reasonable time for the leasehold mortgagee to cure such
default, (b) accept performance by the leasehold mortgagee as if the same had been
performed by Lessee, (c) permit the leasehold mortgagee to enter upon the Premises for
performance of Lessee's obligations and the exercise of the leasehold mortgagee's rights,
(d) not terminate this Lease without giving the leasehold mortgagee thirty (30) calendar
days to cure if the default is capable of being cured by the payment of money, (e) permit
the leasehold mortgagee (or other acquirer of Lessee's interests) in the event of
foreclosure of the leasehold mortgage, assignment in lieu of foreclosure or other similar
means, to be the substituted Lessee under this Lease, (f) permit insurance proceeds
resulting from a casualty and any award in connection with a condemnation or the
exercise of rights under eminent domain to be used first to repair or restore the damaged
Lessee Improvements and the remainder to pay the debt owed to the leasehold
mortgagee, subject to Article 21, (g) not amend this Lease or accept surrender of the
Premises from Lessee without the prior written consent of the leasehold mortgagee, and
(h) any other provisions reasonably requested by the leasehold mortgagee so long as the
provisions do not encumber the Authority's interest in this Lease or the Premises in any
way.
23.8 Subordination. Authority's right, title, and interest in the Premises and this
Lease may only be subject or subordinate to a Permitted Mortgage and as subject to
Article 33.4. No other encumbrance or security interest shall be placed on Lessee's
leasehold interest in this Lease or any other lien or Encumbrance affecting Lessee's
interest in this Lease.
23.9 No Release of Obligations. Except for a mutual release and waiver of rights
and liabilities arising under this Lease or as otherwise expressly provided in this Lease,
any happening, event, occurrence, or situation, whether foreseen or unforeseen, and
however extraordinary, shall not authorize Lessee to vacate or surrender possession of
the Premises, cancel this Lease, or relieve Lessee of its obligation to pay the Rent,
Additional Payments, and any other amount due under this Lease, and shall not relieve
Lessee of any of its other obligations under this Lease. The expiration or earlier
termination of this Lease will not relieve Lessee of its obligation to pay all Rent, Additional
Payments, and any other amount that became due during the Term, any holdover period,
or any period of time Lessee had possession or use of the Premises.
23.10 Conflict. In the event there is a conflict between the terms and conditions
herein and any federal grant assurances, the grant assurances shall take precedence
and govern.
ARTICLE 24 - DEFAULT BY LESSEE
24.1 Events of Breach. The occurrence of the following events shall be
considered a material breach of this Lease by Lessee:
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24.1.1 Monetary Breach. Lessee fails to pay Rent, Additional Payment, or
any other amount when due and the failure continues for ten (10) calendar days
after notice from Authority.
24.1.2. Non-Monetary Breach. Except for the non-monetary events listed
below, Lessee fails to perform any non-monetary obligation under this Lease and
the failure continues for thirty (30) calendar days after notice from Authority, or if
such failure cannot by its nature reasonably be cured within said thirty (30)
calendar days, does not commence within thirty (30) calendar days such act(s) as
shall be necessary to remedy the failure and thereafter diligently proceed to cure
the same.
24.1.3. Bankruptcy, Voluntary. Lessee files a voluntary petition in
bankruptcy or is adjudicated bankrupt or insolvent or takes the benefit of any
relevant law for bankrupt or insolvent debtors or files any petition or answer
seeking any reorganization, arrangement, composition, readjustment, liquidation,
dissolution, or similar relief under any federal, state, or local statute, law, rule, or
regulation, or if Lessee seeks or consents to or acquiesces in the appointment of
any trustee, receiver, or liquidator of Lessee or of all or any substantial part of its
assets, or shall make any general assignment for the benefit of any creditor(s).
24.1.4. Bankruptcy, Involuntary. A petition is filed against Lessee seeking
any reorganization, arrangement, composition, readjustment, liquidation,
dissolution, or similar relief under any federal, state, or local statue, law, rule, or
regulation and shall remain undismissed or unstayed for ninety calendar days, of
if any trustee, receiver, or liquidator of Lessee, or of all or substantial part of its
assets, shall be appointed without the consent or acquiescence of Lessee and
such appointment remains unvacated and unstayed for ninety (90) calendar days.
24.1.5. Insurance, Lapse or Termination. Any insurance policy required
under this Lease lapses or is cancelled, in whole or in part and replacement
coverage is not procured within two (2) calendar days. This breach may only be
cured by Lessee obtaining a new or renewed policy that specifically complies with
the requirements of Article 8 of this Lease. There is no notice from Authority
required for this breach.
24.1.6. Permitted Mortgage Default. Lessee breaches any terms and/or
becomes in default of any Permitted Mortgage. There is no cure period or notice
from Authority required for this breach.
24.1.7. Transfer. The transfer of Lessee's interest in this Lease by
execution or other process of law when said process of law is not discharged within
thirty (30) days of the transfer.
24.1.8. Violation of any Law. Lessee violates any (a) non-safety related
federal, state, or local law, rule, regulation, or ordinance related to the Premises or
this Lease and the violation continues for ten (10) business days after notice from
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Authority, or (b) safety related federal, state, or local law, rule, regulation, or
ordinance related to the Premises or this Lease and the violation continues for two
(2) calendar days after notice from Authority. The term `safety related' as used
herein shall mean related to prevention of danger, risk, injury or damage to any
person or property.
24.1.9. Ceases to Operate. Lessee vacates, deserts or abandons the
Premises or any part thereof for five (5) consecutive days; provided, however, that
a vacation, desertion or abandonment shall not be deemed to occur if:
24.1.9.1 Due to a Refurishment in accordance with Section 7.2 (and
such Refurbishment period shall not exceed two hundred seventy (270)
consecutive days, unless otherwise agreed to in writing by the Parties) and during
such Refurbishment period, Lessee continues to (i) pay Rent and Additional
Payments, (ii) perform the other terms and conditions of this Lease (expressly
including maintenance and insuring the Premises), and (iii) take all reasonable
steps to protect the Premises against vandalism; or
24.1.9.2 Due to a restoration reasonably necessary after casualty or
condemnation (and such restoration period shall not exceed one hundred twenty
(120) consecutive days, unless otherwise agreed to in writing by the Parties) and
during such restoration period, Lessee continues to (i) pay Rent and Additional
Payments, (ii) perform the other terms and conditions of this Lease (expressly
including maintenance and insuring the Premises), and (iii) take all reasonable
steps to protect the Premises against vandalism.
24.1.10. Encumbrances. An Encumbrance is filed or recorded against the
Premises or any part thereof because of any act or omission of Lessee or Lessee
Parties and the Encumbrance is not removed or discharged in compliance with
Article 20 hereof. There is no notice from Authority required for this breach.
24.2 Authority Remedies. Upon a breach of this Lease continuing beyond any
and all applicable notice, grace and/or cure periods, Authority may, but shall not be
obligated to, thereafter or at any time subsequent thereto during the continued existence
of such breach, provided that the Authority shall mitigate its damages:
24.2.1 The Authority may elect to allow this Lease to continue in full
force and effect and to enforce all of the Authority's rights and remedies hereunder,
including without limitation the right to collect Rent and Additional Payments as
they become due, together with late payment charges and interest on all past due
payments in accordance with Section 5.3.
24.2.2 The Authority may cancel and terminate this Lease and
repossess the Premises (by suitable action or proceeding at law; or by force or
otherwise without additional legal process, and all without being liable for
indictment, prosecution, trespass, or damages therefor), and upon giving thirty (30)
Page 45 of 68

days written notice to Lessee of its intention to terminate, at the end of which time
all the rights hereunder of Lessee shall terminate, unless the default, which shall
have been stated in such notice, shall have been cured within the applicable time
frame provided in Section 24.1 above (or within thirty (30) days if a cure period for
the particular event of default is not specifically proscribed in Section 24.1 above).
If Lessee fails to cure within the applicable time frame, then the Authority at its sole
option may (1) cancel and terminate all or the rights hereunder of Lessee, and the
Authority may, upon the date specified in such notice, reenter the Premises and
remove therefrom all property of Lessee and store the same at the expense of
Lessee, or (2) elect to proceed under Section 24.2.3 below. If the Authority elects
to terminate, Lessee shall be liable to the Authority for all amounts owing at the
time of termination, including, but not limited to, Rent and Additional Payments due
plus late payment charges and interest in accordance with Section 5.3.
24.2.3 The Authority may elect to reenter and take possession of
the Premises and expel Lessee or any person claiming under Lessee, and remove
all effects as may be necessary, without prejudice to any remedies for damages or
breach. Such reentry shall not be construed as termination of this Lease unless a
written notice specifically so states; however, the Authority reserves the right to
terminate the Lease at any time after reentry. Following reentry, the Authority may
relet the Premises, or any portion thereof, for the account of Lessee, on such terms
and conditions as the Authority may choose, and may make such repairs or
improvements as it deems appropriate to accomplish the reletting. The Authority
shall not be responsible for any failure to relet or any failure to collect rent due for
such reletting. Lessee shall be liable to the Authority for all costs of reletting,
including any advertising costs, brokerage commissions, the value of the
Authority's staff time expended as a result of the event(s) of default, attorneys
fees, repairs and/or improvements. The Authority may sue periodically to recover
damages during the period corresponding to the remainder of the Lease Term,
and no action for damages shall bar a later action for damages subsequently
accruing.
24.3 Lessee Liability Continues. The termination of this Lease pursuant to this
Article shall not relieve Lessee of its liability and obligations under this Lease, which shall
survive the termination. If this Lease is terminated, whether or not the Premises or any
part thereof shall have been relet, Lessee shall pay to Authority the Rent, Additional
Payments, and any other amount due under this Lease up to the date of the termination.
If Authority elects to re-let the Premises under Section 24.2.3 above, and if the amounts
received from re-letting of the Premises during any month or part thereof be less than the
Rent due and owing from Lessee during such month or part thereof under the terms of
this Lease, Lessee shall pay such deficiency to Authority promptly upon calculation and
written notice thereof.
24.4 No Implied Waivers. Authority's failure to insist upon the strict performance
of any provision of this Lease or to exercise any right or remedy upon a breach hereof,
and any acceptance of full or partial Rent or Additional Payments during the continuance
of the breach, shall not constitute a waiver of the breach or the provision. No provision
hereof to be performed or complied with by Lessee, and no breach thereof, may be
waived, altered, or modified except by a written instrument executed by Authority. A
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waiver of any breach shall not affect or alter this Lease, but all provisions hereof shall
continue in full force and effect with respect to any other then existing or subsequent
breach.
24.5 Remedies Cumulative. The remedies provided in this Lease shall be
cumulative and shall in no way affect any other remedy available to Authority under law
or equity and no one of them shall be construed as exclusive of the others, or exclusive
of any rights, remedies or priorities allowed either Party by law, and shall in no way affect
or impair the right of either Party to pursue any other equitable or legal remedy to which
either Party may be entitled as long as any default remains in any way unremedied,
unsatisfied or undischarged. The exercise or beginning of the exercise by the Authority
of any such rights or remedies will not preclude the simultaneous or later exercise by the
Authority of any other such rights or remedies.
ARTICLE 25 — DEFAULT BY THE AUTHORITY
In the event of any default by the Authority, Lessee's remedy at law shall be an
action for damages. Prior to being entitled to maintain such action, Lessee shall give the
Authority written notice specifying such default with particularity, and the Authority shall
have thirty (30) calendar days within which to cure any such default, or if such default
cannot reasonably be cured within said thirty (30) calendar days, the Authority shall then
have beyond said thirty (30) calendar days to commence cure provided the Authority
pursues diligently the cure to completion. Unless and until the Authority fails to so cure
such default after such notice, Lessee shall not have any remedy or cause of action by
reason thereof. All obligations of the Authority hereunder shall be construed as
covenants, not conditions, and all such obligations shall be binding upon the Authority
only during the period of its ownership of the Premises and this Lease and not thereafter.
ARTICLE 26 - NOTICES
26.1 Notices. Except as otherwise expressly provided in this Lease, all notices,
consents, approvals, and other communications provided for under this Lease shall be in
writing and shall be either delivered electronically or U.S. mailed by certified mail, return
receipt requested, or by receipted overnight delivery, to Authority and Lessee at the
following addresses:
by U.S. Mail or Electronically:
AUTHORITY
President & CEO
Greater Asheville Regional Airport Authority
61 Terminal Drive, Suite 1
Fletcher, NC 28732
Email address: pr(a�flyavl.com
LESSEE
Sheetz, Inc.
Attention: Associate Real Estate Counsel
351 Sheetz Way
Claysburg, PA 16625
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[phone] (direct)
[phone] (mobile)
Email: [e-mail]
by Overnight Delivery:
AUTHORITY
President & CEO
Greater Asheville Regional Airport Authority
61 Terminal Drive, Suitel
Fletcher, NC 28732
LESSEE:
Sheetz, Inc.
Attention: Associate Real Estate Counsel
351 Sheetz Way
Claysburg, PA 16625
[phone] (direct)
[phone] (mobile)
Email: cbarlow(c�sheetz.com
Emergency Notification:
AUTHORITY:
Airport Communications Center
[phone]
LESSEE:
Jordan Walker
Facility Support Manager for North Carolina
336-624-4552
iwalker(asheetz.com
or
1-800-280-4357, press #1 for Emergency
or to such other person or address as either Authority or Lessee may from time
to time designate by written notice to the other in accordance with this Section.
26.1.1. Notice given in compliance with this Article is deemed received for
purposes of this Lease (i) on the day it is personally delivered, (ii) if sent by email,
on the day the email is read, as confirmed by a read receipt confirmation (iii) on
the day it is confirmed as sent by facsimile transmittal, (iv) two business days after
it is delivered to any commercial air courier or express delivery service, or(v) three
business days after it is sent by registered or certified mail as provided above.
Unless otherwise expressly provided for herein, any time period stated in a notice
shall commence on the date the notice is deemed received and actual receipt is
not required.
Page 48 of 68

26.1.2. If Authority or Lessee changes the person or address for notice,
then the Party making the change shall give notice of the change to the other Party
in compliance with this Article. Unless there is a proper change of address, the
Parties are not required to give notice to any person or address other than as set
forth above. A Party may not raise failure of or of defect in notice as a defense if
the Party failed to give the other Party proper notice that it had changed the person
or address for notice.
26.1.3. Notices given orally are invalid.
26.2 Notice to First Permitted Mortgagee Only. When notice is required to be
given to a Permitted Mortgagee, the notice shall only be required to be given to the First
Permitted Mortgagee. Notice to any other Permitted Mortgagee(s) shall be the
responsibility of Lessee. If Lessee fails to give notice to other Permitted Mortgagees, the
failure shall not affect the validity of any action taken by Authority. This provision takes
precedence over any other provisions of this Lease that may impose a greater notice
requirement upon Authority.
ARTICLE 27 - QUIET ENJOYMENT
Authority agrees that Lessee, and anyone claiming by or through Lessee or a
Permitted Mortgagee, upon paying all Rent, Additional Payments, and any other amount
due under this Lease and complying with all other provisions of this Lease, shall have
possession of the Premises without unreasonable interference from Authority, subject
only to the terms of this Lease.
ARTICLE 28 - ESTOPPEL
28.1 The Authority and Lessee each hereby agree to provide to the other, upon
reasonable request, a commercially reasonable estoppel certificate evidencing:
28.1.1. That this Lease is in full force and effect.
28.1.2. The amount and current status of the Rent, Additional Payments,
and any other amount due under this Lease.
28.1.3. That this Lease has or has not been amended or supplemented. If
there has been any amendment or supplement, a description thereof.
28.1.4. That there is no default or breach under the Lease and there is no
event that, with the passage of time, may result in a default or breach, or if there
is any default or breach, a description thereof.
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ARTICLE 29 -APPROVALS AND CONSENTS
Unless otherwise expressly stated in this Lease, where the approval or consent of
a Party is required, the approval or consent shall not be unreasonably withheld nor
delayed. In such instances, if the requesting Party believes that the other Party has
unreasonably withheld or delayed its approval or consent, the sole remedy of the
requesting Party shall be limited to seeking an injunction or declaratory judgment and in
no event shall the other Party be liable for any money damages or lost profits.
ARTICLE 30 - ADJOINING EXCAVATION
Authority will use reasonable efforts to not disrupt Lessee's use or operation of the
Premises, upon at least seven (7)days' prior written notice, Lessee shall allow any person
authorized by law and approved by the Authority desiring to excavate upon land or streets
adjacent to the Premises to enter the Premises and shore up any walls and take any other
action during the excavation to the extent required. Authority, at its expense, shall repair,
or cause to be repaired any damage caused to the Premises by any excavation,
construction work, or other work that may be done on any land or street adjoining or
adjacent to the Premises, not caused by Lessee or its contractors.
ARTICLE 31 - AUTHORITY NOT LIABLE
Unless where directly and substantially caused by the negligence of the Authority,
its agents, employees or contractors, the Authority shall not be responsible or liable for
any damage or injury to any of the Lessee Improvements, or to any personal property,
fixture, merchandise, or equipment of Lessee or to any person on the Premises from
steam, gas, electricity, water, rain, or any other source(s) whether the same may leak
into, issue or flow from any part of the Premises or from pipes or plumbing work of the
same, or from any other place or quarter. Authority shall not be responsible or liable in
case of any accident or injury, including death, to any of Lessee's its agents, employees,
representatives, contractors, licensees, invitees, sublessees, or other any person in or
about the Premises or the streets, sidewalks, or vaults adjacent thereto. Lessee agrees
that it will not hold Authority responsible or liable therefor.
ARTICLE 32 - UNAVOIDABLE DELAY
If either Party is unable to perform any obligation under this Lease (other than the
payment of any sum of money) because of strikes, boycotts, labor disputes, embargoes,
riots, rebellion, terrorism, earthquake, fire, and other acts of God, shortages of labor or
materials, war, superior governmental authority, governmental laws, regulations,
restrictions, delays, an outbreak and/or spread of an epidemic, pandemic, or other
disease causing local, regional, or national emergency, or other unforeseen causes
beyond the control of such Party, then performance shall be extended for ninety (90.)
calendar days or during the period of the unavoidable delay, whichever is less. If the
affected Party is unable to perform after one hundred eighty (180) calendar days, then
this Lease shall terminate, unless the Parties mutually agree, in writing, to extend the time
Page 50 of 68

to perform for any length of time deemed appropriate, and the Parties may extend the
time to perform as many times as deemed appropriate. Lessee may not assert any
unavoidable delay as an excuse or defense to its failure to pay Rent,Additional Payments,
or any other amount due under this Lease or maintain all Insurance as required under
this Lease. Lessee's lack of money and/or inability to obtain money or financing is not an
unavoidable delay as set forth herein and cannot be used by Lessee as an excuse or
defense to its failure to pay Rent, Additional Payments, or any other amount due under
this Lease.
ARTICLE 33 — GOVERNMENT REQUIREMENTS
33.1 Government and Federal Aviation Administration Requirements.
33.1.1. Lessee shall comply with all applicable regulations of the Federal
Aviation Administration relating to Airport security and shall control the Premises
so as to prevent or deter unauthorized persons from obtaining access to the air
operations area of the Airport.
33.1.2. In addition to Article 18.1, the Authority reserves unto itself, and
unto its successors and assigns, for the use and benefit of the public, a right of
flight for the passage of aircraft through the airspace above the surface of the
Premises, together with the right to cause in said airspace such noise as may be
inherent in the operation of aircraft now known or hereafter used, and for
navigation of or flight in the said airspace, and use of said airspace for landing on,
taking off from or operating on the Airport.
33.1.3 Lessee shall restrict the height of structures, objects of natural
growth and other obstructions on the Premises in compliance with the
requirements of Federal Aviation Regulations, 14 CFR Part 77.
33.1.4 Lessee shall require any lights in the Premises to be constructed,
focused, or arranged in a manner that will prevent them from casting their beams
in an upward direction so as to interfere with the vision of pilots in aircraft landing
at or taking off from the Airport.
33.1.5. Lessee shall prevent any use of the Premises which would interfere
with or adversely affect the operation or maintenance of the Airport or which would
otherwise constitute a hazard, danger or nuisance at the Airport.
33.1.6 Notwithstanding anything herein contained that may appear to be
the contrary, it is expressly understood and agreed that, except for Lessee's right
to possession of the Premises, the rights granted under this Lease are non-
exclusive.
33.2 Discrimination Not Permitted. Lessee, for itself, its successors in interest
and its assigns, as a part of the consideration hereof, does hereby covenant and agree
as a covenant running with the land that (a) no person on the grounds of race, color or
national origin shall be excluded from participation in, denied the benefits of, or be
otherwise subject to discrimination in the use of the Premises under the provisions of this
Page 51 of 68

Lease; (b) that in the construction of any improvements on, over or under the Premises
and the furnishing of services thereon, no person on the grounds of race, color or national
origin shall be excluded from participation in, denied the benefits of, or otherwise be
subject to discrimination; and (c) that Lessee shall use the Premises in compliance with
all other requirements imposed pursuant to Title 49, Code of Federal Regulations,
Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non-
discrimination in Federally-assisted programs of the Department of Transportation-
effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be
amended. Likewise, Lessee shall comply with laws of the State of North Carolina
prohibiting discrimination because of race, color, religion, sex, national origin, age,
handicap, or marital status. Should the Lessee authorize another person to provide
services or benefits from the Premises, Lessee shall obtain from such person a written
agreement pursuant to which such person shall, with respect to the services or benefits
which it is authorized to provide, undertake for itself the obligations contained in this
paragraph. Lessee shall furnish the original or a true copy of such agreement to Authority.
The Authority may, from time to time, be required by the United States Government, or
one or more of its agencies, to adopt additional or amended provisions, including non-
discrimination provisions, concerning the use and operation of the Airport and Authority-
owned property, and in such event, Lessee agrees that it will adopt any such requirement
as a part of this Lease. If Lessee shall furnish any services to the public at Premises, it
shall furnish said services on a fair, equal, and not unjustly discriminatory basis to all
users thereof and shall charge fair, reasonable, and not unjustly discriminatory prices for
each unit of service, provided that Lessee shall be allowed to make reasonable and non-
discriminatory discounts, rebates or other similar types of price reductions to volume
purchasers, if any. In the event of breach by Lessee of any of the herein nondiscrimination
covenants, continuing after the thirty calendar day notice from the Authority, Authority
shall have the right to terminate this Lease and to re-enter and repossess said Premises,
and hold the same as if this Lease had never been made or issued. The right granted to
Authority by the foregoing sentence shall not be effective until applicable procedures of
Title 49, Code of Federal Regulations, Part 21 are followed and completed, including
exercise or expiration of appeal rights. Further, Lessee assures Authority that no person
shall be excluded on the grounds of race, creed, color, national origin, or sex from
participating in or receiving the services or benefits of any program or activity covered by
Title 14, Code of Federal Regulations, Part 152, Subpart E, Federal Aviation
Administration, Non-discrimination in Airport Aid Program, and that it will be bound by and
comply with all other applicable provisions of such Subpart E, as it may be amended.
Lessee also assures Authority that it will require its covered sub-organizations to provide
written assurances to the same effect and provide copies thereof to Authority. Lessee
assures Authority that it will comply with all pertinent State of North Carolina and/or
Federal statutes, Executive Orders, and such rules as are promulgated to assure that no
person shall, on the grounds of race, creed, color, national origin, sex, age, or handicap
be excluded from participating in any activity conducted in connection with its operations
under this Lease. Lessee also assures the Authority that it will require any contractors
and sublessees (to the extent that such sublessees are allowed under other provisions of
this Lease) to provide assurances to the same effect and ensure that such assurances
are included in subcontracts at all tiers which are entered into in connection with Lessee's
operations under this Lease.
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33.3 Airport Concession Disadvantaged Business Enterprise ("ACDBE"). This
Lease is subject to the requirements of the U.S. Department of Transportation's
regulations, 49 CFR Part 23. In accordance with these requirements of the U.S.
Department of Transportation, Disadvantaged Business Enterprises ("DBEs") as defined
in 49 CFR Part 23 shall have the maximum opportunity to participate in the performance
of contracts financed in whole in part with Federal funds and in concession agreements
at Airports. Lessee agrees that it will not discriminate against any business owner
because of the owner's race, color, national origin, or sex in connection with the award or
performance of any concession agreement covered by 49 CFR Part 23. Lessee agrees
to include the immediately preceding sentence in any subsequent concession
agreements (subcontracts) that it enters and cause those businesses to similarly include
the statements in further agreements.
33.3.1 Lessee shall submit information as required concerning the DBE(s)
that will participate in this concession. This information will include the names and
addresses of each DBE and/or DBE suppliers of goods and services, a description
of the work to be performed by each DBE, the dollar value (annual estimated gross
receipts) of the DBE's contracted participation, and a description of the legal
arrangements to be utilized. Lessee does not have a specific goal for ACDBE
participation in the performance of this Lease. Notwithstanding the absence of a
specific goal, Lessee agrees that it will make substantial good faith efforts to obtain
participation of ACDBEs through subleasing of locations, join venturing with an
ACDBE partner and or utilizing ACDBE vendors/suppliers, when available. If
applicable, Lessee will contract with the ACDBEs identified by Lessee and
approved by the Authority.
33.3.2 The Lessee agrees it will make good faith efforts to explore all
available opportunities to extent practicable to obtain ACDBE participation, or if
Lessee does not secure ACDBEs, Lessee agrees to provide documentation of its
good faith effort to the Authority.
33.3.3 DBE participation may be in the form of one or more subleases,
joint ventures, partnerships, or other legal arrangement meeting the eligibility
standards in 49 CFR Part 23. In the event that the Lessee qualifies as a DBE,
then ACDBE participation shall be deemed to have been met. Should Lessee be
unable to attain participation as provided for above, Lessee may use or obtain the
services, goods, and products from Disadvantaged Business Enterprises (DBEs)
as allowed by 49 CFR, Part 23.
33.3.4 The Lessee shall replace a DBE firm whose contract is terminated
with another DBE firm in order to meet the goal, unless otherwise approved by the
Authority.
33.3.5 Lessee shall maintain records and documents of payments to
DBE's for three (3) years following their performance under this Lease.
33.4 Subordination to Agreements with the United States. This Lease is subject
and subordinate to all current and future agreements entered into between Authority and
Page 53 of 68

the FAA, or any other federal agency, related to the operation or maintenance of the
Airport and real property, including agreements that are required as a condition to
Authority receiving federal rights or property for Airport purposes or required in order for
Authority to spend federal funds to improve or further develop the Airport in accordance
with the Federal Aviation Act of 1958 (49 U.S.C. §§ 1301, et seq.).
33.5 Rehabilitation Act and Americans with Disabilities Act. Lessee and its
agents, employees, representatives, contractors, licensees, or invitees and any other
person whom Lessee controls or has the right to control, shall comply with Section 504
of the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990 (ADA),
and all pertinent Executive Orders, regulations, and rules promulgated thereunder.
Lessee must train all employees and agents performing under this Lease on Section 504
and ADA requirements.
33,6 Reservation of Rights. The Authority reserves the right for itself and its
assigns to access and use the Premises. The Authority reserves the right to grant
easements for the purpose of constructing, installing, maintaining, operating, repairing,
replacing, and removing new or existing utilities and facilities related to the operation or
use of Authority properties and for the purpose of providing access and services to other
Authority properties. In addition, the Authority reserves the right for itself and its assigns
to widen or realign existing roadways adjacent to the Premises and to install new
roadways or driveways, provided that such roadway or driveway construction does not
unreasonably interfere with Lessee's use of the Premises. Lessee agrees to execute any
reasonable documents requested by the Authority related to the granting of any such
access, use rights, or easements. The Authority shall have no liability for interference with
Lessee's use of the Premises which might result from the Authority's construction,
installation, maintenance, repair, replacement, or removal efforts and no such efforts shall
be construed as a constructive eviction, other eviction, or disruption of the quiet
enjoyment of Lessee. Rent shall not be reduced during any time period that the Authority
is exercising any rights described in this Article; provided, however, if any portion of the
Premises is permanently removed as described in the Agreement, then Rent shall be
adjusted accordingly.
33.7 Authority Over the Airport and the Airport Public Facilities. In addition to
any other rights granted by law or by this Lease, the Authority reserves the following rights
with respect to the Airport and Premises including, without limitation, the Airport Public
Facilities: a) to adjust the boundaries of, expand or delete all or part of the Airport; (b) to
add to, delete, or amend all or any part of the Authority rules applicable to all or portions
of the Airport; (c)to permit the use of the Airport by others in such manner as the Authority
may from time to time determine; (d) to close all or any portion of the Airport; (e) to
construct additional buildings or other Improvements at the Airport; and (f)to evict anyone
from the Airport who fails to comply with any applicable laws, including applicable
Authority ordinances or rules.
33.8 Right to Amend. If the FAA or any other federal agency requires an
amendment, modification, revision, supplement, or deletion of any provision of this Lease
as a condition to granting funds for the improvement of the Airport or the Premises then
Lessee hereby consents to the amendment, modification, revision, supplement, or
Page 54 of 68

deletion to the extent necessary to satisfy the FAA's or other federal agency's
requirements. At the Authority's request, Lessee shall execute and deliver to the
Authority all instruments and other documents necessary to evidence its consent.
33.9 Conflict. To the extent of any direct conflict of the terms and provisions of
this Article 34 with any other terms of this Lease, the terms of this Article 34 shall control.
ARTICLE 34 - GENERAL PROVISIONS
34.1 Additional Documents. Each Party agrees to provide such other
documents from time to time as may be reasonably requested to implement the
provisions of this Lease.
34.2 Amendments. All amendments, approvals, and consents required by this
Lease shall be in writing, dated, and signed by the Parties, and may not be established
by oral testimony. This Lease cannot be modified or amended by any verbal agreement
or communication with Authority either before or after this Lease was effective.
34.3 Attorney Fees and Costs. In any contested action related to or arising out
of this Lease and except as otherwise expressly set forth in this Lease, the Authority and
Lessee shall each be responsible for the fees and expenses of their respective legal
counsel, court costs, and consultants.
34.4 Business Certification. If Lessee is a corporation, limited liability company,
or other business entity regulated by a different state than North Carolina, then Lessee
certifies that it is authorized to do business in the State of North Carolina, is in good
standing with North Carolina, and shall remain in good standing with North Carolina
throughout the Term of this Lease. If Lessee is an individual or any other unregulated
business entity, then Lessee certifies that it is authorized to transact business in the State
of North Carolina and shall remain authorized throughout the Term of this Lease. Lessee
certifies that the person signing this Lease on its behalf is an agent of Lessee and
authorized to bind Lessee to this Lease.
34.5 Brokerage Commissions. Unless expressly provided otherwise herein,
each Party warrants to the other that no real estate commission, finder's fees (or similar
fees) is owed, or claimed by or through such Party to any person or entity in connection
with this Lease, and both Parties do hereby agree to indemnify, defend and hold
completely harmless the other Party from and against any and all liabilities, costs and
expenses (including all costs for investigation and defense thereof, including, but not
limited to, court costs, expert fees and reasonable attorneys' fees prior to institution of
legal proceedings and at both trial and appellate levels) incurred by either Party as a
result of any claims therefor.
34.6. Choice of Law. This Lease shall be governed by, construed, and enforced in
accordance with the laws of the State of North Carolina, and those of the United States.
34.7 Recording. This Lease shall not be recorded, but, if requested by either
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Party, a memorandum hereof shall be prepared, signed by the parties, and recorded in
the County where the Premises are located, at the expense of the Party requesting the
same. The aforesaid memorandum shall contain such information as is necessary to
provide adequate record notice of the existence of the Lease, including the Parties, the
Term, the property and easements involved and whether options to renew exist.
34.8 Continuation During Disputes. The Parties shall continue to perform under
this Lease during the period of any dispute between them, unless enjoined by a court
order. This provision does not apply to the Authority when Lessee is in default or breach
of this Lease beyond all applicable notice and cure periods.
34.9 Successors and Assigns. This Lease binds the Parties and their owners,
officers, directors, managers, members, agents, employees, representatives, trustees,
executors, personal representatives, successors, and assigns.
34.10 Fair Interpretation. Lessee agrees that the rule that ambiguous or vague
language in a contract will be construed against the drafter is waived and does not apply
to this Lease. Lessee agrees that this Lease shall be interpreted fairly and not against
Authority simply because Authority drafted this Lease.
34.11 Headings. Headings for articles, sections, and paragraphs are for reference
only and do not limit the content or scope of any provision of this Lease.
34.12 Institution of Legal Actions. Any action or proceeding related to or arising out
of this Lease shall be filed and maintained in a state or federal court located in the State of
North Carolina and of the Federal District Court for the Western District of North Carolina
and the Parties consent to the jurisdiction and venue of such courts.
34.13 Authority's Officials Not Liable. Authority's officers, officials, agents, and
employees are not personally liable to Lessee for any default or breach of this Lease by
Authority, are not liable for any amount that may become due to Lessee, and are not
obligated to perform under any provision of this Lease.
34.14 No Liability to Third Parties. Authority has no liability to any third party for any
approval of Lessee's Plans, construction of Lessee Improvements, negligence, failure to
comply with the provisions of this Lease, including any absence or inadequacy of insurance
required to be carried by Lessee, or otherwise as a result of the existence of this Lease.
34.15 No Third-Party Beneficiaries. Except as expressly stated herein, this Lease
does not create and may not be construed as creating any right or privilege in any person
that is not a Party to this Lease.
34.16 No Partnership. The relationship of the Parties is solely that of Authority and
Lessee. Nothing in this Lease creates or may be construed as creating a principal-agent,
employer-employee, partnership, joint venture, or similar relationship between the
Parties. Lessee agrees that it is not an agent or employee of Authority for the use or
occupancy of the Premises or for the installation, construction, alteration, or repair of any
Lessee Improvement(s) on the Premises. Lessee agrees that the Lessee Parties, as
Page 56 of 68

applicable, are not employees of Authority and that Authority's civil service, retirement, or
personnel rules and benefits do not accrue or apply to Lessee's employees and
contractors. Lessee shall pay all salaries, wages, bonuses, retirement, withholdings,
workers' compensation, unemployment compensation and other benefits, taxes, and
premiums appurtenant thereto concerning Lessee and the Lessee Parties, as applicable,
and Lessee shall indemnify, defend, and hold harmless Authority with respect thereto.
34.17 Savings Clause. If any provision of this Lease is ruled invalid or
unenforceable by an court of law applicable to the Premises and/or this Lease, then the
provision shall be modified to the extent necessary to make it valid or enforceable, if
practicable, and the remaining provisions of this Lease shall remain unchanged and in
full force and effect, provided that elimination of the offending provision does not
materially prejudice either Party's rights or obligations under this Lease, in which case
this Lease will terminate.
34.18 Time of Essence. Time is of the essence in Lessee's payment of Rent,
Additional Payments, and any other amount due under this Lease, and the performance
of all its other obligations under this Lease.
34.19 Entire Agreement. This Lease constitutes and embodies the entire
agreement between the Parties and supersedes all prior written and oral agreements,
understandings, discussions, proposals, negotiations, communications, representations,
and correspondence related to this Lease and the Premises. The Parties are not bound
by any obligation not provided for in this Lease. Lessee agrees that it was not induced to
enter into this Lease by any misrepresentation, undue influence, or coercion by Authority
or any of its officers, officials, agents, or employees. The Recitals and Exhibits attached
to this Lease are material parts of this Lease and are incorporated herein by this
reference.
Page 57 of 68

IN WITNESS WHEREOF, this Lease is duly executed by the parties hereto as of the
day and year first above written, intending themselves to be legally bound hereby.
GREATER ASHEVILLE REGIONAL
AIRPORT AUTHORITY
( � - 1�'
By: Lew Bleiweis, A.A.E. Date
President & CEO
SHEETZ, INC.
By: Tr vis T. 4rP110 Date
President & CEO
Page 58 of 68

SCHEDULE 14.7.5
CONSTRUCTION COST SUMMARY (IMPROVEMENTS)
(***To Be Completed and Attached within 90 Days of Completion of Construction***)
RE: Ground Lease and Agreement dated , 2023 (the "Lease"), between
GREATER ASHEVILLE REGIONAL AIRPORT AUTHORITY ("Authority") and SHEETZ, INC.
("Lessee")for the Premises, approximately acres located at
Unless otherwise specified, capitalized terms used herein shall have the same meanings as in
the Lease.
Lessee agrees that:
1. The Improvements have been completed in accordance with the approved Plans and
specifications, and all applicable zoning and permitting requirements.
2. The Improvements have been completed in a good and skilled manner.
COST CATEGORY— LESSEE PERCENT OF
IMPROVEMENTS FINAL AMOUNT TOTAL
Planning and Development
Building Improvements
Site Work Improvements
Equipment Costs
TOTAL PROJECT COST
SHEETZ, INC.
By: Date
Its:
Page 59 of 68

SCHEDULE 14.7.5
Page 2
COST CATEGORY— Relocated Parking FINAL AMOUNT PERCENT OF
TOTAL
Planning and Development
Building Improvements
Site Work Improvements
Equipment Costs
TOTAL PROJECT COST
COST CATEGORY— Additional Parking FINAL AMOUNT PERCENT OF
TOTAL
Planning and Development
Building Improvements
Site Work Improvements
Equipment Costs
TOTAL PROJECT COST
SHEETZ, INC.
By: Date
Its:
Acknowledgement of receipt and approval of the foregoing from Lessee:
GREATER ASHEVILLE REGIONAL
AIRPORT AUTHORITY
By: Lew Bleiweis, A.A.E. Date
President & CEO
Page 60 of 68

Exhibit A
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Page 61 of 68

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Exhibit C
Percentage Rent Monthly Report •
Remit Payment to:
Greater Asheville Regional Airport Authority
61 Terminal Drive, Suite 1
Fletcher, NC 28732
Send Reports to:
xxxxxxxx
MONTHLY GROSS RECEIPTS REPORT
("MONTHLY STATEMENT")
SHEETZ #
Asheville Regional Airport
Month: Year:
[This Monthly Statement and payment must be submitted to Authority by the 15th of each month.]
Gross Receipts $
Less Discounts (1) $ Discount %
Adjusted Gross Receipts $
Percentage Fee X 1.5%
Percentage Fee Payable $
The Monthly Statement with prior month actuals, along with payment, is due by the
fifteenth (15th) day of each calendar month. The undersigned hereby certifies that the
figures above represent a true account statement for the transactions, gross receipts,
and fees collected.
Signature Date Email
Prepared By Title Phone
Page 63 of 68

Exhibit D
Operating Standards
Page 1 of 3
In the operation of the business to be conducted under this Lease, Lessee agrees to
comply with the following conditions and requirements:
2. Lessee shall provide the customary facilities and services of a Convenience Store
and gas station in support thereof twenty-four (24) hours per day, seven (7) days
per week.
3. Lessee shall furnish well-trained personnel, including qualified, competent, and
experienced supervisory personnel, and other support staff necessary to operate
its Convenience Store and gas station. Lessee shall select and appoint a full-time
manager and supervisors necessary to fulfill the requirements of the operation.
4. Lessee's supervisors shall be qualified and experienced supervisors. Each shall
be capable of acting as the manager during the full-time manager's absence.
Supervisors shall be trained by the manager and Lessee so that each shall
become proficient in handling all the duties of the manager. Supervisors shall be
scheduled so that the manager or a supervisor is on duty at all times.
5. Lessee shall ensure polite and inoffensive conduct and demeanor on the part of
its representatives, agents, servants, and employees.
6. Lessee shall furnish good, prompt, courteous and efficient service to meet
reasonable demands or requests for such services.
7. Lessee's Premises shall be clean in appearance and maintained so as to present
a professional and well-kept image at all times.
8. Lessee shall not distribute, or allow to be distributed, advertising or promotional
materials, flyers, or leaflets at or upon Authority Property.
9. Lessee shall not allow its agents, servants or employees so engaged to conduct
business in a loud, noisy, boisterous, derogatory, discriminatory, offensive,
objectionable manner, or to drive in either a reckless or an unlawful fashion, or to
solicit business on Airport or Authority Property except through the Authority's
advertising concessionaire.
10.Lessee shall operate its business upon the Premises so that a duplicate sales slip,
or detailed sales transaction shall be issued with each sale or transaction. Such
duplicate detailed sales transactions shall be considered a part of Lessee's books
and records of accounts and shall be retained pursuant to Article 6 of this Lessee.
Page 64 of 68

Exhibit D
Operating Standards
Page 2 of 3
11.Lessee shall not misrepresent to the public its prices or the terms and provisions
of its services or those of its competitors. Lessee shall comply with all applicable
rules and regulations of all governmental agencies having jurisdiction over
Lessee's activities. Lessee shall, upon receipt of written notice, immediately cease
any business practices which Authority determines to be deceptive.
12.Lessee must offer for sale:
a. Motor fuels including regular, mid-grade, high grade and automobile diesel.
b. Fast food, which must include carry-out service with limited indoor and
outdoor seating, and such fast food items may also be sold via the drive-
thru service lane. All made-to-order items and cold made-to-go items must
be available 24-hours a day.
c. Lessee's branded specialty coffee concept, which must be available 24-
hours a day.
d. Snacks, fountain or pre-packaged beverages, pre-packaged foods,
cigarettes and other merchandise typical to a Convenience Store operation,
except for pornographic materials, which are prohibited.
e. Beer and wine products for sale to the extent allowed by North Carolina
Alcoholic Beverage Control Commission regulations (and subject to
Lessee's applicable permit/license and all other applicable Laws) with the
following restrictions and/or prohibitions:
1. Beer and unfortified wine may only be sold for off-site
consumption; and
2. Fortified wines may not be sold.
13.Lessee may provide electric vehicle charging stations through sublease/license
arrangements with third-party electric charging providers, provided that such
sublease/license agreement(s) have been approved in advance in writing by
Authority and that the electricity costs for such vehicle charging stations are billed
to and paid by Lessee and/or the third-party electric charging provider(s).
14.Lessee must accept cash, debit and credit payments for all sales, and must offer
debit and credit payments for motor fuel sales at each pump. Lessee is not
obligated to offer credit sales for lottery.
15.Lessee must provide air pumps for customer use.
16.Lessee must provide sufficient parking to ensure parking for the fast-food operation
does not interfere with motor fuel and convenience center operations.
17.Lessee may also offer for sale such merchandise and services typical to a
Convenience Store, including, but not limited to, ATM banking and payphones
services.
Page 65 of 68

Exhibit D
Operating Standards
Page 3 of 3
18.Notwithstanding any provisions hereof to the contrary, Lessee shall not (i) provide
automobile and/or truck rentals, (ii) perform automobile repairs and/or
maintenance, (iii) provide parking services (whether or not for compensation), (iv)
provide passenger shuttle service, (v) perform any service not specifically listed or
permitted in the terms of the Lease.
19.Lessee's right to operate the Convenience Store business at the Airport as granted
in this Lease shall not be construed as an exclusive right.
Page 66 of 68

Exhibit E
Insurance Requirements
Page I of 2
At least three (3) business days prior to the Effective Date of this Lease and at least ten (10)
days prior to the expiration of any policy or policies theretofore provided hereunder by Lessee,
Lessee shall cause a certificate or certificates of insurance to be furnished to Authority
evidencing all such coverage, and such certificate shall provide that the policy or policies will not
be cancelled nor the limits thereunder be materially changed without first providing at least thirty
(30) days' written notice thereof to Authority. The Greater Asheville Regional Airport Authority,
and the members (including, without limitation, members of Authority Board), officers, agents
and employees of each, all of whom shall be named as additional insureds, from and against
any and all liabilities arising out of or relating to Lessee's use or occupancy of, or the conduct of
its operations on the Premises,
A. Liability Insurance (any auto, including owned autos, non-autos and hired autos),
and Commercial General Liability insurance (including, but not limited to Premises/Operations,
Products/Completed Operations, Contractual, Independent Contractors, Personal Injury
coverage, as applicable), Liquor Liability, Employment Practices, Crime Liability, Pollution
Liability protecting Lessee, the Greater Asheville Regional Airport Authority, and the members
(including, without limitation, members of Authority Board), officers, agents and employees of
each, all of whom shall be named as additional insureds, from and against any and all
liabilities arising out of or relating to Lessee's use or occupancy of, or the conduct of its
operations on, the Premises and any improvements thereto, in such form and with such
company or companies as the Authority may reasonably approve, with a combined single limit
(or its equivalent) per occurrence of not less than the amount set forth hereof, with a
deductible reasonably acceptable to the Authority, with a waiver of any right of subrogation
that the insurer may have against the Authority, with contractual liability coverage for Lessee's
covenants to and indemnification of the Authority under this Lease, and with the insurance
company obligated to use counsel agreed upon by the Parties and competent in this area of
insurance defense in carrying out its obligations to the Authority. This insurance shall provide
that it is primary insurance as respects any other valid and collectible insurance Authority may
possess, including any self- insured retention or deductible Authority may have, and that any
other insurance Authority does possess shall be considered excess insurance only. This
insurance shall also provide that it shall act for each insured and each additional insured as
though a separate policy has been written for each; provided, however, that this provision
shall not operate to increase the policy limits of the insurance;and,
B. Workers Compensation Insurance as required by the laws of North Carolina;
provided, however, that Lessee may self-insure its workers compensation liability, if in
compliance with North Carolina law. Employers Liability coverage is also required with limits of
liability not less than $500,000 each accident, $500,000 disease policy limit and $500,000
disease-each employee.
Lessee shall purchase and maintain throughout the Term of this Lease the following insurance:
Page 67 of 68

Exhibit E
Insurance Requirements
Page 2 of 2
Minimum Limits of Insurance
Lessee, or any party the Lessee subcontracts with, shall maintain limits of liability of not less
than those set forth below.
1. COMMERCIAL GENERAL LIABILITY:
(i) $5,000,000 per occurrence for bodily injury and property damage;
(ii) $5,000,000 per occurrence for personal and advertising injury;
(iii) $5,000,000 aggregate for products and completed operations; and,
(iv) $5,000,000 general aggregate applying separately to the work performed
under the Agreement.
2. COMMERCIAL AUTOMOBILE LIABILITY:
(i) $1,000,000 per accident for bodily injury and property damage.
3. CRIME LIABILITY INSURANCE: Not less than $1,000,000 for each occurrence
covering all employees, including sub-contractors, who have access to or responsibility
for or who handle any funds associated with or generated on or from the Premises.
4. PROPERTY INSURANCE: Insurance against loss of ordamage to all buildings,
improvements, equipment, and fixtures on the Premises resulting from fire,
lightning, vandalism, malicious mischief, those risks ordinarily defined as "all risk
coverage." Such property insurance shall be in amount equal tothefull replacement
cost of said buildings, improvements,equipment,and fixtures,including all required
code upgrades.
5. BUSINESS INTERUPTION INSURANCE: Insurance equal to 100% of the rental
requirements herein stated, including fixed rents and percentage rents, which shall be
based on an annual average computed on the most recent twelve-month period.
6. WORKERS' COMPENSATION INSURANCE as required by the State of North
Carolina with statutory limits and EMPLOYER'S LIABILITY with limits of liability not
less than:
(i) $500,000 each accident for bodily injury;
(ii) $500,000 disease each employee; and,
(iii) $500,000 disease policy
7. DRAM SHOP/LIQUOR LIABILITY INSURANCE for liquor liability coverage covering
any claims arising under applicable law relating to said uses which could be asserted
against Authority, Lessee, or the Premises if Lessee serves or sells alcoholic beverage
in or from the Premises. Liquor Liability coverage is required with limits of liability of
not less than:
(i) $2,000,000 per occurrence;
(ii) $2,000,000 aggregate for bodily injury and property damage;
8. POLLUTION LIABILITY/ENVIRONMENTAL IMPAIRMENT/ENVIRONMENTAL
CLEAN-UP AND LIABILITY/STORAGE TANK POLLUTION LIABILITY:
(I) $1,000,000 per occurrence.
Page 68 of 68