Common use of Minimum Use Requirement Clause in Contracts

Minimum Use Requirement. Company shall average at least four (4) total flights (for the purposes of this subsection (C)(2) a “flight” shall mean an arrival and departure) per Business Day for an Airline Gate Area (hereinafter the “Minimum Use Requirement”). Company’s Minimum Use Requirement for an Airline Gate Area shall be determined by taking the total number of actual flights of Company and its Affiliate’s at the Airline Gate Area for each Business Day during the previous three (3) months and dividing by the total number of Business Days in the applicable three (3) month period. If the average equals or exceeds four (4) flights per Business Day for the Airline Gate Area, then Company has satisfied its Minimum Use Requirement for the applicable Airline Gate Area. If the Board requires the Company to divert a flight from an Airline Gate Area that flight shall be credited toward the originally intended Airline Gate Area prior to its diversion for purposes of satisfying the Minimum Use Requirement. Flights at another gate at the Airport shall not be used in any manner in determining whether Company has satisfied its Minimum Use Requirement for an Airline Gate Area and flights shall not be diverted from other gates at the Airport for the purpose of satisfying the Minimum Use Requirement for an Airline Gate Area. Notwithstanding anything contained herein to the contrary, events that are beyond the reasonable control of Company, including but not limited to events caused by acts of God, war, riots, floods, explosions, fires, earthquakes, strikes, terrorism, or labor disputes which prevent Company from complying with the Minimum Use Requirement shall be considered a hardship and shall excuse Company’s compliance during the days of such hardship up to a period of sixty (60) days. In the event that the actual use by Company of an Airline Gate Area shall fall below the Minimum Use Requirement, the Board may elect to cancel preferential rights with respect to that Airline Gate Area by serving written notice to Company. Such cancellation shall be at the Board’s option. Such cancellation shall be effective thirty (30) days after the date the Board serves notice to Company. In the event that preferential use rights with respect to an Airline Gate Area are canceled pursuant to this subsection (C)(2), because of Company’s failure to meet the Minimum Use Requirement, Company and its Affiliates shall still be entitled to use the Airline Gate Area, but the use of the Airline Gate Area shall be governed under the provisions of subsection (C)(3), below. Company shall be entitled to restoration of preferential rights for an Airline Gate Area which have been canceled if all of the following conditions are met: (a) more than six (6) months have elapsed since the effective date of cancellation; (b) Company has met or exceeded the Minimum Use Requirement during the previous three (3) months; (c) Company’s present and projected gate utilization supports its needs for preferential use of the Airline Gate Area; (d) the Board determines, in its reasonable discretion, such restoration shall not create a hardship for an Airline Transportation Company that is using the Airline Gate Area; and (e) the Board approves the restoration of preferential rights to the Airline Gate Area in writing, subject to the conditions for use of such Airline Gate Area as provided herein.