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AGREEMENT TO TERMINATE SUBTENANT'S RIGHT OF
OCCUPANCY UNDER SUBLEASE AGREEMENT
This Agreement To Terminate Subtenant's Right of Occupancy Under Sublease
Agreement (this "Agreement") is entered into effective as of this 1st day of
October, 1998 (the "Effective Date"), by and among SHASTA AVIATION CORP.,
d.b.a. CRESCENT HELICOPTERS ("Sublessor"), GLOBAL TURBINE SERVICES, INC.
("Sublessee") and AMERICAN AIRCARRIERS SUPPORT, INCORPORATED ("Assignee").
RECITALS
A. Effective December 3, 1997, the Sublessor and Sublessee entered into the
Sublease Agreement attached hereto and incorporated herein as Exhibit A
(the "Sublease") for the premises described therein (the "Premises").
B. Tenant accepted the condition of the Premises and has been in continuous
occupation of the Premises since the effective date of the Sublease.
C. Tenant is selling its assets to Assignee, and has requested Sublessor to
consent to the assignment of the Sublease to Assignee, and to release
Sublessee from the continuing obligation to pay rent under the Sublease.
D. Sublessor is not in default under the Sublease. Sublessee is current on
payment of rent under the Sublease.
E. Sublessor desires to release Sublessee from its obligation to pay rent
under the Sublease, subject to the terms and conditions contained in this
Agreement.
F. Assignor desires to assume the Sublessee subject to the terms and
conditions contained in this Agreement and the Sublease.
AGREEMENT
In consideration of the above recitals and the mutual promises contained
in this Agreement, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. RELEASE OF SUBLESSOR. Sublessee hereby releases Sublessor from any
and all conditions, covenants and obligations of Sublessor under the Sublease
and agrees not to institute any action or suit in law or equity against
Sublessor or to institute, prosecute or in any way aid in the institution or
prosecution of any claim, demand, action or cause of action against Sublessor
arising out of the Sublease or the Premises.
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2. ASSUMPTION BY ASSIGNEE. Assignee hereby assumes the Sublease and
all of Sublessee's obligations under the same as of the Effective Date hereof,
and accepts the terms and conditions of the Sublease. Assignee agrees to begin
paying rent no later than the Effective Date.
3. SECURITY DEPOSIT. Sublessor acknowledges Sublessee's assignment of
the security deposit to Assignee, which shall continue to be subject to the
terms and conditions described in the Sublease. The Parties acknowledge that
Sublessor shall retain the security deposit in satisfaction of Assignor's
requirement to provide a security deposit under the Sublease.
4. VACATION OF PREMISES. Sublessee agrees to remove any personal
assets or assets not being sold to Assignee no later than the Effective Date.
5. INDEMNITY. Sublessee shall indemnify, defend and hold the
Sublessor harmless from and against any and all claims, losses, damages,
injuries, liabilities and all costs, including attorneys fees, court costs and
expenses and liabilities incurred in or from any such claim, arising from
Sublessee's use or occupancy of the Premises during the term of the Sublease as
modified by this Agreement, or arising from any act, negligence or the failure
to act of Sublessee, or any of its agents, contractors, employees, invitees or
guests. Sublessee, upon notice from sublessor, shall defend Sublessor at
Sublessee's expense by counsel reasonably satisfactory to Sublessor. Sublessee,
as a material part of the consideration of Sublessor, hereby waives all claims
in respect thereof against Sublessor.
6. CONDITIONS PRECEDENT TO RELEASE OF SUBLESSEE. Sublessor's release
of Sublessee's obligation to pay rent under the Sublease, as further described
in this Section 6 of this Agreement, is expressly conditioned upon and subject
to satisfaction of the following conditions:
(a) Assignee assuming the Sublease and all obligations thereof
after the date hereof.
7. RELEASE OF SUBLESSEE. Subject to Sublessee's compliance with the
covenants and conditions contained in this Agreement and the satisfaction of
the conditions contained in Section 6, and except as to the following
conditions, effective as of the Effective Date, the Sublessor hereby releases
Sublessee from any further obligation(s) to pay rent or to reimburse sublessor
for operating, maintenance and common area operating expenses that relate to
the period after such date.
Sublessee is not released from its covenants under the Sublease other than
for the payment of rent and the reimbursement or payment of operating,
maintenance and common area maintenance expenses. Sublessee is not released
from any other covenants under the Sublease, including, but not limited to,
payment for claims relating to environmental contamination of the Premises,
claims for payment for work performed on the Premises, claims relating to
Sublessee's use or occupancy of the Premises, or Sublessee's failure to
properly maintain the Premises, which claims arose during the term of the
Sublease.
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8. ATTORNEYS' FEES. In the event of any controversy, claim or action being
filed or instituted between the parties to this Agreement to enforce the terms
and conditions of this Agreement or arising from the breach of any provision
hereof, the prevailing party will be entitled to receive from the other party
all costs, damages, and expenses, including reasonable attorneys' fees, incurred
by the prevailing party, whether or not such controversy or claim is litigated
or prosecuted to judgment, including all costs and reasonable attorneys fees
incurred as a result of any appeal. The prevailing party will be that party who
was awarded judgment as a result of trial or arbitration, or who receives a
payment of money from the other party in settlement of claims asserted by that
party.
9. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and once so executed by all parties thereto, each such counterpart
shall be deemed to be an original instrument but all such counterparts together
shall constitute but one agreement.
10. SURVIVAL. The terms and provisions hereof shall survive the termination
of the Lease and shall remain in full force and effect thereafter.
11. BINDING EFFECT. This Agreement and shall be for the benefit of and bind
the parties hereto and their respective heirs, legal representatives, successors
and assigns.
12. FURTHER ACTS. Except as otherwise provided herein, in addition to the
acts and deeds recited herein and contemplated to be performed, executed and/or
delivered by the parties, the parties hereby agree to perform, execute and/or
deliver or cause to be performed, executed and/or delivered any and all such
further acts, deeds and assurances as any party hereto may reasonably require to
consummate the transaction contemplated hereunder.
13. ENTIRE AGREEMENTS. This Agreement and the other documents to be
executed by the parties hereunder, embody the entire agreement relative to the
subject matter hereof, and there are no oral agreements existing relative to
the subject matter hereof which are not expressly set forth herein or in the
documents to be executed hereunder and covered hereby, and in the case of any
conflicts between any such documents, this Agrement shall control. This
Agreement may be modified only in writing when signed by all the parties hereto.
14. WAIVER. No covenant, term or condition or the breach thereof shall be
deemed waived, except by written consent of the party against whom the waiver is
claimed, and any waiver of the breach of any covenant, term or condition shall
not be deemed to be a waiver of any other covenant, term or condition herein.
Acceptance by a party of any performance by another party after the time the
same shall have become due shall not constitute a waiver by the first party of
the breach or default of any such covenant, term or condition unless otherwise
expressly agreed to by the first party in writing.
15. INCORPORATION OF RECITALS. The foregoing recitals are incorporated into
and made an integral part of this Agreement.
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EXECUTED effective the date first set forth above.
SUBLESSOR
SHASTA AVIATION CORP.,
an Idaho corporation
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Xxxx X. Xxxxxx, President
SUBLESSEE
GLOBAL TURBINE SERVICES, INC.,
a ___________________ corporation
By: /s/ Xxxx Xxxxx
------------------------------------
Its: President
------------------------------------
ASSIGNEE
AMERICAN AIR CARRIERS SUPPORT, INCORPORATED,
a Delaware corporation
By: Xxxx Xxxxx
------------------------------------
Its: President
------------------------------------
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SUBLEASE AGREEMENT
THIS AGREEMENT, entered into on October 1, 1997 by and between SHASTA AVIATION
CORP., dba CRESCENT HELICOPTERS, hereinafter called the SUBLESSOR, and GLOBAL
TURBINE SERVICES INC., hereinafter called SUBLESSEE or TENANT:
WITNESSETH
1. AGREEMENT TO LEASE:
Subject to the approval of Broward County, Florida, a political
subdivision of the State of Florida, SUBLESSOR does this day lease unto
SUBLESSEE, and said SUBLESSEE, does hire and take as tenant under said
SUBLESSOR, that portion of SUBLESSEES premises known as the NORTHEAST and
NORTHWEST HANGARS, including concrete pad and land to the south of the two
Hangars together with designated tie downs and other land and open areas
as shown on Exhibit "A" attached hereto and incorporated herein by
reference. The SUBLESSEE Premises specifically excludes the Jet Fuel
Facility including ingress and egress thereto, and land east of the
north/south taxiway to the west of the NORTHWEST HANGAR as shown on
Exhibit "A".
2. MASTER LEASE:
SUBLESSEE hereby acknowledges that the Premises and SUBLESSOR'S rights
thereto are subject to the Master Lease with Broward County, a copy of
which is on file in the offices of Broward County Aviation Department,
Division of Airports and SUBLESSOR'S offices, and SUBLESSEE hereby
represents that it is familiar with the provisions of same and said Master
Lease is incorporated herein by reference. SUBLESSEE acknowledges that (a)
it will comply with each and every provision of the Master Lease in
accordance with the terms hereof as such provisions relate to the
Premises, except as such provisions are supplemented or amended by this
Sublease Agreement; (b) any and all rights and reservations of Broward
County under the Master Lease as such rights or reservations may apply to
the leased Land described in the Master Lease or SUBLESSOR shall likewise
apply to the Premises and SUBLESSEE under this Sublease Agreement; and (c)
any remedy which Broward County may have against SUBLESSOR or the leased
premises under the Master Lease shall become a remedy of SUBLESSOR and
Broward County against SUBLESSEE and the Premises under this Sublease
Agreement. The foregoing shall in no manner limit SUBLESSOR's right to
require SUBLESSEE to comply with SUBLESSEE's obligations under this
Sublease Agreement or SUBLESSEE's obligations, as limited by this
Agreement, under the Master Lease.
3. LEASE TERM:
The term of this Lease is for FOUR (4) years commencing December 15, 1997
and continuing through December 14, 2001, subject to and conditioned upon
the approval of Broward County Florida, and the fulfillment of all terms
and conditions of this lease. Furthermore, the SUBLESSOR does hereby grant
SUBLESSEE an additional TWO YEAR NINE AND ONE HALF MONTHS Option to Lease
said premises commencing December 15, 20001 and continuing through
September 30, 2004, at the rental amounts specified below. Such option to
be exercised by SUBLESSEE providing SUBLESSOR notice
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in writing of intent to exercise the option no later than 180 days prior to
the end of the initial lease term (December 14, 2001).
RENTAL AMOUNT:
The agreed total base annual rental amount for year one shall be $96,000 or
$8,000 per month plus any applicable sales or use tax or other sums imposed
by law on such payments. It is recognized that, for purposes of any rental
increases imposed on SUBLESSOR by Broward County, SUBLESSEE shall occupy
50% of the total premises leased by SUBLESSOR and will be responsible to
pay, as additional rent, 50% of any such Broward County imposed rental
increase. Therefore, 50% of the final rent increase resulting from the
revaluation of the premises in August 1997, which is currently being
negotiated with Broward County (estimated to be between $500 and $2,200 per
month), will be added to the base monthly rent of $8,000 retroactive to
December 15, 1997. It is further agreed that 50% of any rent increase
resulting from the re-evaluation of the premises by Broward County as of
August 2002 will be added to the then monthly rental rate paid by SUBLESSEE
during the option period if said option has been exercised by SUBLESSEE. In
addition, at the time of percentage Consumer Price Index (CPI) increases
(if any) imposed by Broward County on SUBLESSOR, SUBLESSEE'S annual rental
amount will be increased by a dollar amount equal to 50% of that CPI
percentage increase. Base monthly rent will also increase beginning the
second year (December 15, 1998) as well as at the beginning of each year
thereafter including each option year by an amount of $500 per month. All
rents are due monthly in advance on the first calendar day of each month
payable to: CRESCENT HELICOPTERS, 0000 Xxxxx Xxxx., Xxxxxxxx Xxxxx, XX
00000. The first lease payment due December 15, 1997 will be for both the
first and last month's base lease payments amounting to $16,000. A 10%
penalty fee will be incurred by the SUBLESSEE for any payments not received
by the SUBLESSOR by the seventh calendar day of the applicable month.
5. DEPOSIT:
Receipt is hereby made in the amount of $8,500 from SUBLESSEE. Upon
acceptance of this lease, such deposit shall belong to the SUBLESSOR and
applied as a Security Deposit for the period of said Lease. Said Security
Deposit shall secure the performance of the SUBLESSEE'S obligation
hereunder and shall constitute a fund from which any liens incurred by
SUBLESSEE or damages caused by SUBLESSEE and suffered by SUBLESSOR shall be
paid. Any Deposit remaining upon termination shall be returned to the
SUBLESSEE. SUBLESSEE shall not have the right to apply the Security Deposit
in payment of monthly rent.
6. LESSEE'S OBLIGATIONS:
(A) SUBLESSEE herein to the absolute and complete exclusion of
SUBLESSOR herein, shall be solely responsible for the
performance of any and all maintenance upon the interior and
exterior of premises including maintenance and repair of the
tie down areas, maintenance of the landscaping, cutting grass
areas including grass around tie down areas, the payment of
any and all liability, fire and personal property insurance
premiums, and 100% of said hangar's metered utilities. In
addition, tenant A shall pay 50% of the water xxxx which is a
joint use water xxxx for the entire premises.
(B) SUBLESSEE shall be solely responsible for the maintenance and
repair of all equipment, doors, windows, electrical, plumbing
and HVAC equipment and any and all other related equipment.
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(G) SUBLESSEE shall accept the premises in "as is" condition including
acknowledgment by SUBLESSEE of an acceptable Phase II environmental
inspection having been completed on the premises as of __________
199_, a copy of which is attached and as such made a part of this
lease. SUBLESSEE shall also be responsible for any and all
improvements to the premises, with any improvement costing more than
$1,000 requiring the written approval of SUBLESSOR. All SUBLESSEE
improvements shall at the end of the lease term become the property of
the SUBLESSOR unless said improvements are removed by SUBLESSEE and
the premises are put back to it's original condition as determined
solely by SUBLESSOR.
7. SUBLESSOR'S OBLIGATIONS:
(A) SUBLESSOR shall be responsible for the maintenance on the roof,
exterior structural walls and foundation of any buildings located on
the Premises.
8. SUB-LETTING:
SUBLESSEE shall not assign this lease nor sublet the premises, or any part
thereof, without the written consent of the SUBLESSOR, nor shall SUBLESSEE
allow the premises, or any part thereof, to be used for any other purpose
than is legally permitted by Broward County or any other governing body.
9. PERSONAL PROPERTY:
All personal property placed or moved into the premises above described by
the SUBLESSEE, shall be at risk of the SUBLESSEE or OWNER thereof, and the
SUBLESSOR shall not be liable for any damage to said personal property, or
to the SUBLESSEE, or to any other party for any reason whatsoever.
10. COMPLIANCE WITH RULES AND REGULATIONS:
SUBLESSEE shall promptly comply with all statutes, ordinances, rules,
orders, regulations and requirements of the Federal, State and Local
Governments, Broward County Aviation Department, and of any and all of
their departments, bureaus and agencies applicable to said premises.
11. COMPLIANCE WITH RULES AND REGULATIONS: NON-PAYMENT OF RENT, RIGHT OF
RE-ENTRY:
(A) Time shall be of the essence within the terms and conditions of this
Lease. THE PROMPT PAYMENT OF THE RENT FOR SAID PREMISES UPON THE DATES
NAMED, AND THE FAITHFUL OBSERVANCE OF THE RULES AND REGULATIONS AND
TERMS OF THIS LEASE ARE THE CONDITIONS UPON WHICH THIS LEASE IS MADE
AND ACCEPTED. Any material failure on the part of the SUBLESSEE herein
to comply with the terms, conditions, rules or regulations now in
existence, or which may be hereinafter required by Broward County,
Florida, to whom this Lease is subservient, or the failure to pay rent
within Seven calendar days after the same is due and payable, shall,
at the option of the SUBLESSOR, work a forfeiture of this said
contract and of all rights of the SUBLESSEE hereunder, and, thereupon,
the SUBLESSOR, it's agent or attorneys, shall have the right to enter
said premises and remove therefrom all persons and/or personal
property located therein, forcibly or otherwise.
(B) If the SUBLESSEE shall abandon or vacate the subject premises before
the end of the term of this Lease, or any extension thereof, or if
said SUBLESSEE shall suffer the rent or any other sums of money due
SUBLESSOR to be in arrears, then, and in such event, the SUBLESSOR.
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may, at its option, forthwith cancel this Lease or SUBLESSOR may enter
said premises by force or otherwise, without being liable in any way
therefor, and relet the premises with or without any furniture, tools,
or equipment, that may be therein, at such price and upon such terms
and for such duration of time as the SUBLESSOR may determine, and
revive the rent therefor, applying the same to the payment of the rent
or other moneys due by these presents, and if the full rental or other
sums of money due SUBLESSOR herein provided shall not be realized by
SUBLESSOR over and above the expenses to the SUBLESSOR in such
releting, the said SUBLESSEE shall pay any deficiency.
12. ATTORNEY'S FEES AND COSTS:
The parties hereto agree, jointly and severally, to pay to the prevailing
party a reasonable attorney's fee, suit costs, and all other costs
connected with the enforcement of any and all terms of this Lease
Agreement.
13. TIMELY PAYMENT OF RENT, UTILITIES, TAXES AND INSURANCE.
(A) SUBLESSEE agrees that they will pay all charges for rent, insurance,
utilities etc. on said premises, and should said charges herein
provided for at any time become due and unpaid for a period of Seven
(7) Calendar days after the same shall become due and owing, the
SUBLESSOR may, at its option, consider the said SUBLESSEE to be
tenants at sufferance and shall have the right to immediately reenter
upon said premises and the entire rent for the remainder of this Lease
Agreement shall be at once due and payable and may forthwith be
collected by distress and otherwise, plus reasonable attorney's fees
and any other costs and expenses connected with the enforcement of the
terms and conditions of any portion of this Lease Agreement.
(B) SUBLESSEE agrees that they will pay any and all applicable sales
taxes, personal property taxes, which may be levied against the
property herein now or in the future during the course of this Lease
Agreement or any extension thereof.
14. RIGHT OF INSPECTION AND ENTRY:
The SUBLESSOR, or any of its agents, shall have the right to enter said
premises during all reasonable hours to examine the same, to make such
repairs, additions or alterations as may be deemed necessary for the
safety, comfort or preservation thereof, of said building, or to exhibit
said premises, and to put or keep upon the doors thereof a notice "FOR
RENT" at any time the SUBLESSEE is in default of this sublease agreement
as well as within 180 days before the expiration of this Sublease.
15. ACCEPTANCE AND RETURN OF PREMISES:
SUBLESSEE hereby accepts the premises in the condition they are in at the
beginning of this Lease and agrees to maintain said premises in at least
the same condition, order and repair as they are at the time commencement
of said term, excepting only reasonable wear and tear.
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16. LIMITATION OF LANDLORD'S LIABILITY:
SUBLESSOR shall not be liable for any damages or injury by any cause, which
may be sustained by the SUBLESSEE herein or any persons or for any other
damage or injury resulting from carelessness, negligence or improper
conduct on the part of any other tenant or agent, or employee, or entity.
17. DEFAULT AND REMEDIES:
A. DEFAULT. The occurrence of any of the following shall constitute a
material default and breach of this Lease by SUBLESSEE:
(1) Any failure by SUBLESSEE to pay Minimum Rent or Percentage Rent or
any other monetary sums required to be paid hereunder, where such
failure continues for three (3) days after written notice by
SUBLESSOR to SUBLESSEE:
(2) The failure to occupy or the abandonment or vacation of the
Premises by SUBLESSEE;
(3) The repudiation of this Lease by SUBLESSEE, any action by
SUBLESSEE which renders performances by SUBLESSEE of its
obligations under this Lease impossible, or any action by
SUBLESSEE which demonstrates an intent by SUBLESSEE not to perform
an obligation under this Lease or not to continue with the
performance of obligations under this Lease;
(4) A failure by SUBLESSEE to observe and perform any other provisions
of this Lease to be observed or performed by SUBLESSEE, where such
failure continues for fifteen (15) days after written notice
thereof by SUBLESSOR to SUBLESSEE; provided, however, that if the
nature of the default is such that the same cannot reasonably be
cured within said fifteen (15) day period, SUBLESSEE shall not be
deemed to be in default if SUBLESSEE shall within such period
commence such cure and thereafter diligently prosecute the same to
completion;
(5) The making by SUBLESSEE of any general assignment or general
arrangement for the benefit of creditors, the filing by or against
SUBLESSEE of a petition to have SUBLESSEE adjudged bankrupt or of
a petition for reorganization or arrangement under any law
relating to bankruptcy (unless, in the case of a petition filed
against SUBLESSEE, the same is dismissed within sixty (60) days),
the appointment of a trustee or receiver to take possession of
substantially all of SUBLESSEE'S assets or of SUBLESSEE'S interest
in this Lease, where possession is not restored to SUBLESSEE
within thirty (30) days, or the attachment, execution or other
judicial seizure of substantially all of SUBLESSEE'S assets
located at the Premises or of SUBLESSEE'S interest in this Lease,
where such seizure is not discharged within thirty (30) days.
B. NOTICE. SUBLESSEE shall pay SUBLESSOR the sum of One Hundred and
No/100ths dollars ($100.00) in addition to any other obligations
hereunder for the cost of sending each Notice to Default.
C. REMEDIES. In the event of any such material default or breach by
SUBLESSEE, SUBLESSOR may at any time thereafter, without limiting
SUBLESSOR in the exercise of any right of remedy at law or in equity
which SUBLESSOR may have by reason of such default or breach:
(1) Maintain this Lease in full force and effect and recover the Rent
and other monetary charges as they become due (or alternatively,
if SUBLESSOR exercises the right to accelerate the Rent due
hereunder as set forth in Section 17D below, recover all Rent and
other monetary charges due as a result of acceleration), without
terminating SUBLESSEE'S right to possession irrespective of
whether SUBLESSEE shall have
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abandoned the Premises. In the event SUBLESSOR elects not to
terminate this Lease, SUBLESSOR shall nevertheless have the right
to attempt to re-let the Premises at such rent and upon such
conditions and for such a term, and to do all acts necessary to
maintain or preserve the Premises as SUBLESSOR deems reasonable
and necessary without being deemed to have elected to terminate
this Lease, including removal of all persons and property from
the Premises; such property may be removed and stored in a public
warehouse or elsewhere at the cost of and for the account of
SUBLESSEE, and if SUBLESSEE does not pay for storage, then sold
at public auction; the proceeds of such sale shall first be
applied to payment of the expenses of such sale, second to
amounts due SUBLESSOR and the balance, if any, to SUBLESSEE. In
the event any re-letting occurs, SUBLESSEE'S right to possession
of the Premises under this Lease shall terminate automatically
upon the new SUBLESSEE taking possession of the Premises, but
SUBLESSEE shall nevertheless be responsible for damages, more
particularly described in Sections 17C.(2)a through 17C.(2)e.
Notwithstanding that SUBLESSOR fails to elect to terminate the
Lease initially, SUBLESSOR may at any time during the term of
this Lease elect to terminate this Lease by virtue of such
previous default of SUBLESSEE.
(2) Terminate SUBLESSEE'S right to possession by any lawful means
and SUBLESSEE shall immediately surrender possession of the
Premises to SUBLESSOR. In such event SUBLESSOR shall be entitled
to recover from SUBLESSEE all damages incurred by SUBLESSOR by
reason of SUBLESSEE'S default, including without limitation
thereto the following:
a.) the worth at the time of award of any unpaid Rent which
had been earned at the time of such termination; plus
b.) the worth at the time of award of the amount by which the
unpaid Rent which would have been earned after
termination until the time of award exceeds, the amount
of such rental loss that could have been reasonably
avoided; plus
c.) the amount by which the unpaid Rent for the balance of
the term after the time of award exceeds the amount of
such rental loss that could be reasonably avoided; plus
d.) any other amount necessary to compensate SUBLESSOR for
all the detriment proximately caused by SUBLESSEES
failure to perform its obligation under this Lease or
which in the ordinary course of events would be likely to
result therefrom including costs and expenses incurred by
SUBLESSOR in making the Premises ready for a new
SUBLESSEE; plus
e.) at SUBLESSOR'S election, such other amounts in addition
to or in lieu of the foregoing as may be permitted from
time to time by applicable law of the State where the
Premises are located. Upon any such re-entry, SUBLESSOR
shall have the right to make any reasonable repairs,
alterations or modifications to the Premises, which
SUBLESSOR in its sole discretion deems reasonable and
necessary. As used in Section 17C.(2)a. above, the "worth
at the time of award" is computed by allowing interest at
the rate of one percent (1%) per month from the date of
default. The term Rent, means the rent to be paid
pursuant to Paragraph 4 and all other monetary sums
required to be paid by SUBLESSEE pursuant to the terms of
this Lease.
D. ACCELERATION OF RENT. In the event of any such material default or
breach by SUBLESSEE, SUBLESSOR may, at its election and without
limiting SUBLESSOR'S other rights and remedies, accelerate the payment
of all Rent and other monetary sums payable by
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SUBLESSEE for the balance of the term and upon any such elections
such sums shall be immediately due and payable in full.
E. SPECIAL DAMAGES. In addition to the damages for breach of this
Lease described in Paragraph 17C. and 17D. SUBLESSEE agrees that
SUBLESSOR shall be entitled to receive from SUBLESSEE any and all
costs in connection with SUBLESSEE'S default hereunder, including
without limitation, administrative costs of SUBLESSOR associated
with SUBLESSEE'S default, costs of repairing and/or remodeling the
Premises for new SUBLESSEES and leasing commissions for any leasing
agent engaged to re-let the Premises.
F. LATE CHARGES. SUBLESSEE hereby acknowledges that late payment by
SUBLESSEE to SUBLESSOR of Rent and other sums due hereunder will
cause SUBLESSOR to incur costs not contemplated by this Lease, the
exact amount of which are unknown and will be extremely difficult
to ascertain other than such late charges which may be imposed on
SUBLESSOR by the terms of any mortgage or trust deed covering the
Premises. Accordingly, if any installment of Rent or any other sums
due from SUBLESSEE shall not be received by SUBLESSOR or
SUBLESSOR'S designee within seven (7) days after such amount shall
be due, SUBLESSEE shall pay to SUBLESSOR in addition to any late
charges incurred by SUBLESSOR under any mortgage or deed of trust
covering the Premises, a late charge equal to ten percent (10%) of
the amount(s) past due and additionally all such installments of
Rent or other sums due shall bear interest from the seventh day
forward at the rate of One percent (1%) per month until paid in
full. The parties hereby agree that such late charges represents
fair and reasonable estimate of the costs SUBLESSOR will incur by
reason of late payment by SUBLESSEE. Acceptance of such late charge
by SUBLESSOR shall in no event constitute a waiver of SUBLESSEE'S
default with respect to such overdue amount, nor prevent SUBLESSOR
from exercising any of the rights and remedies granted hereunder.
G. DEFAULT BY SUBLESSOR. SUBLESSOR shall not be in default unless
SUBLESSOR fails to perform obligations required of SUBLESSOR within
a reasonable time, but in no event later that thirty (30) days
after written notice by SUBLESSEE to SUBLESSOR and to the holder of
any mortgage or deed of trust covering the Premises furnished to
SUBLESSEE in writing, specifying wherein SUBLESSOR has failed to
perform such obligations; provided, however, that if the nature of
SUBLESSOR'S obligation is such that more than thirty (30) days are
required for performance, then SUBLESSOR shall not be in default if
SUBLESSOR commences performance within such thirty (30) day period
and thereafter diligently prosecutes the same to completion;
provided, further, that in the event that SUBLESSOR has defaulted
in the payments of a monetary obligation and SUBLESSEE has advanced
monies to pay such obligation. SUBLESSOR shall pay SUBLESSEE
interest on such monies advanced at a rate of one percent (1%) per
month until paid in full.
H. BANKRUPTCY.
(1.) CHAPTER 7. In the event that SUBLESSEE shall become a
debtor in a case filed under Chapter 7 of the Bankruptcy
Code, and SUBLESSEE'S trustee or SUBLESSEE shall elect to
assume this Lease for the purpose of assigning the same
or otherwise, such election and assignment may be made
only if the provisions of Sections 17H.(2), 17H.(3), and
17H.(5) are satisfied. If SUBLESSEE or SUBLESSEE'S
trustee shall fail to elect to assume this Lease within
sixty (60) days after the filing of such petition or such
additional time as provided by the court within such 60-
day period, this Lease shall be deemed to have been
rejected. Immediately thereupon SUBLESSOR shall be
entitled to possession of the Premises without further
obligation to SUBLESSEE or SUBLESSEE'S trustee and this
Lease, upon the election of SUBLESSOR, shall terminate
but SUBLESSOR'S right to be compensated for
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damages (including, without limitation, damages pursuant to this
Paragraph 17) in any such proceeding shall survive whether or
not the Lease is terminated.
(2.) CHAPTER 11. In the event that SUBLESSEE shall become a debtor in
a case filed under Chapter 11 of the Bankruptcy Code, or in a
case filed under Chapter 7 of the Bankruptcy Code which is
converted to Chapter 11, SUBLESSEE'S trustee or SUBLESSEE, as
debtor-in-possession, must elect to assume this Lease within
sixty (60) days from the date of the filing of the petition
under Chapter 11 or conversion thereto, or SUBLESSEE'S trustee
or the debtor-in-possession shall be deemed to have rejected
this Lease. Immediately thereupon SUBLESSOR shall be entitled to
possession of the Premises without further obligation to
SUBLESSEE or SUBLESSEE'S trustee and this Lease, upon the
election of SUBLESSOR, shall terminate, but SUBLESSOR'S right to
be compensated for damages (including, without limitation,
damages pursuant to this Paragraph 17) in any such proceeding
shall survive whether or not the Lease is terminated.
Should SUBLESSEE'S trustee, or SUBLESSEE or debtor-in-
possession elect to assume this lease, it can do so only if:
a.) SUBLESSEE'S trustee or the debtor-in-possession has cured
all defaults under this Lease, or has provided SUBLESSOR
with Assurance (as defined below) that it will cure all
defaults susceptible of being cured by the payment of money
on the date of such assumption, and that it will cure all
other defaults under this Lease which are susceptible of
being cured by the performance of any act within fifteen
(15) days from the date of such assumption.
b.) SUBLESSEE'S trustee or the debtor-in-possession has
compensated or has provided SUBLESSOR with Assurance that
within ten (10) days from the date of such assumption that
it will compensate SUBLESSEE for any actual pecuniary loss
incurred by SUBLESSEE arising from the default of
SUBLESSEE, SUBLESSEE'S trustee, or the debtor-in-possession
indicated in any statement of actual pecuniary loss sent
by SUBLESSOR to SUBLESSEE'S trustee or the
debtor-in-possession.
c.) SUBLESSEE'S trustee or the debtor-in-possession has
provided SUBLESSOR with Assurance of future performance of
each of the obligations under this Lease of SUBLESSEE,
SUBLESSEE'S trustee or the debtor-in-possession, and if
SUBLESSEE'S trustee or the debtor-in-possession has
provided such assurance, SUBLESSEE'S trustee or the
debtor-in-possession shall also deposit with, or provide
Assurance as defined below to SUBLESSOR, as security for
the timely payment of Rent hereunder, an amount equal to
six (6) monthly installment payments of the Rent, provided
all terms and provisions of this Lease shall have been
complied with. The obligations imposed upon SUBLESSEE'S
trustee or the debtor-in-possession by this paragraph shall
continue with respect to SUBLESSEE or any assignee of this
Lease after the completion of bankruptcy proceedings.
d.) Such assumption will not breach or cause a default under
any provision of any other lease, mortgage, financing
agreement or other agreement by which SUBLESSOR is bound
relating to the Premises. For purposes of this Paragraph
17H, SUBLESSOR and SUBLESSEE acknowledge that "Assurance"
shall mean no less than: SUBLESSEE'S trustee or the
debtor-in-possession has and will continue to have
sufficient unencumbered assets after the payment of all
secured obligations and administrative expenses to assure
SUBLESSOR that sufficient funds will be available to
fulfill the obligations of SUBLESSEE under this Lease and
there shall have been deposited with SUBLESSOR, or the
Bankruptcy Court
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shall have entered an order segregating sufficient cash
payable to SUBLESSOR and/or SUBLESSEE'S trustee or
debtor-in-possession shall have been granted a valid and
perfected first lien and security interest and/or mortgage
in property of SUBLESSEE, SUBLESSEE'S trustee of the
debtor-in-possession, acceptable as to value and kind to
SUBLESSOR, to secure to SUBLESSOR the obligation of
SUBLESSEE'S trustee or the debtor-in-possession to cure
the defaults under this Lease, monetary and/or
non-monetary, within the time periods set forth above.
(3). SUBSEQUENT PETITIONS. In the event that this Lease is assumed in
accordance with Paragraph 17H(2) and thereafter SUBLESSEE is
liquidated or files or has filed against it a subsequent petition
under Chapter 7 or Chapter 11 or the Bankruptcy Code, SUBLESSOR
may, at it's option, terminate this Lease and all rights of
SUBLESSEE hereunder by giving SUBLESSEE notice of its election to
so terminate within thirty (30) days after the occurrence of
either of such events.
(4). ADEQUATE ASSURANCES. If SUBLESSEE'S trustee or the
debtor-in-possession has assumed the Lease pursuant to the terms
and provisions of Sections 17H(1), 17H(2) and 17H(3) for the
purposes of assigning (or thereafter elects to assign) this
Lease, this Lease may be so assigned only if the proposed
assignee has provided adequate assurance of future performances
of all of the terms, covenants and conditions of this Lease to be
performed by SUBLESSEE. SUBLESSOR shall be entitled to receive
all cash proceeds of such assignment. As used herein, "adequate
assurance of future performance" shall mean and include all such
requirements as set forth in Section 365 of Title II, U.S. Code
(as may be amended) are met, and further that no less than each
of the following conditions has been satisfied.
a). The proposed assignee has furnished SUBLESSOR with either
(i) a current financial statement audited by a certified
public accountant indicating a net worth and working capital
in amounts which SUBLESSOR reasonably determines to be
sufficient to assure the future performance by such assignee
of SUBLESSEE'S obligations under this Lease, or (ii) a
guarantee or guarantees, in form and substance satisfactory
to SUBLESSOR, from one or more persons with a net worth which
SUBLESSOR reasonable determines to be sufficient to secure
the SUBLESSEE'S obligations hereunder, and has also furnished
information with respect to the proposed assignee's
management ability, expertise and experience in SUBLESSEE'S
business and SUBLESSOR has reasonably determined that the
proposed assignee has the management expertise and experience
to operate the business conducted on the Premises.
b). SUBLESSOR has obtained all consents or waivers from others
required under any lease, mortgage, financing arrangement or
other agreement by which SUBLESSOR is bound, in order to
permit SUBLESSOR to consent to such assignment without
violating the terms of any such agreement.
c). The proposed assignment will not release or impair any
guaranty of the obligations of SUBLESSEE (including the
proposed assignee) under this Lease.
(5). USE AND OCCUPANCY CHARGES. When, pursuant to the Bankruptcy
Code, SUBLESSEE'S trustee or the debtor-in-possession shall be
obligated to pay reasonable use and occupancy charges for the use
of the Premises, such charges shall not be less than the Base
Rent plus Broward County valuation rental increase, CPI
increases, and other charges due hereunder. No acceptance by
SUBLESSOR of said use and occupancy charges, or of Rent hereunder
shall constitute a waiver of any of the provisions of this
Paragraph 17H, or any of SUBLESSOR'S rights thereunder.
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(6) NO TRANSFER IN BANKRUPTCY WITHOUT CONSENT. Neither the whole nor
any portion of SUBLESSEE'S interest in this Lease or its estate
in the Premises shall pass to any trustee, receiver, or assignee
for the benefit of creditors, or any other person or entity, or
otherwise by operation of law under the laws of any state having
jurisdiction of the person or property of SUBLESSEE unless the
requirements and conditions of this Paragraph 17H, are truly met
or unless SUBLESSOR shall have otherwise consented to such
transfer in writing. No acceptance by SUBLESSOR of installment
payments or Rent or any other payments from any such trustee,
receiver, assignee, person or other entity shall be deemed to
constitute such consent by SUBLESSOR nor shall it be deemed a
waiver of SUBLESSOR'S rights under this Paragraph 17H including
the right to terminate this Lease for any transfer of
SUBLESSEE'S interest under this Lease without such consent.
18. PERSONS AND PARTIES BOUND HEREBY:
This contract shall be binding upon the SUBLESSOR, it's heirs,
administrators or legal representatives, and of the SUBLESSEE, individually
or corporately, jointly and severally.
19. TIME OF PERFORMANCE HEREUNDER:
It is understood and agreed by and between the parties hereto that time is
of the essence of this contract and this applies to all terms and
conditions contained herein.
20. NOTICE:
It is understood and agreed by and between the parties hereto that written
notice mailed or hand delivered to the premises leased hereunder shall
constitute sufficient notice to the SUBLESSEE to comply with the terms of
this Lease Agreement. As to the SUBLESSOR, all notices shall be sent to:
Crescent Helicopters, 0000 Xxxxx Xxxx., Xxxxxxxx Xxxxx, XX 00000.
21. CHARGES AS RENT:
It is understood and agreed by and between the parties hereto that any
charges against the SUBLESSEE by the SUBLESSOR for services or for work
done on the premises by order of the SUBLESSEE or otherwise accruing under
this contract shall be considered as rent due and shall be included in
any lien for rent due and unpaid.
22. REQUIRED INSURANCE:
SUBLESSEE, at it's sole expense, shall maintain a Comprehensive General
Liability Insurance Policy in an amount not less that $1,000,000 and
listing Crescent Helicopters, and Xxxxx X. Xxxxxxx and Xxxx X. Xxxxxx, as
"ADDITIONAL INSURED". SUBLESSEE shall also maintain fire and extended
coverage insurance upon the Premises and any contents owned by SUBLESSOR
in an amount equal to no less than 100% of the replacement cost. Such
insurance shall include standard extended coverage, vandalism, malicious
mischief, and water damage coverage and shall name Broward County,
SUBLESSOR and any mortgagee of SUBLESSOR as additional insured and co-loss
payee thereunder. Evidence of the above insurance must be delivered to
SUBLESSOR prior to occupancy. SUBLESSEE
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will continue to provide SUBLESSOR with satisfactory evidence that such
insurance is maintained throughout the SUBLESSEE term.
23. WASTE DISPOSAL:
SUBLESSEE shall not suffer the disposal of any human or chemical waste in,
on or about the demised premises except in approved containers, or fashion,
and in areas specifically approved by Landlord for such purpose. All
government requirements relative to the storage and disposal of hazardous
chemicals, fuel, oil, etc., shall be strictly adhered to at all times.
24. MAINTENANCE OF GROUNDS:
SUBLESSEE, at their sole expense, shall maintain the demised premises,
including lawn and shrubbery, in at least as good condition as the same
presently exists.
25. USE:
SUBLESSEE shall occupy the premises for Aircraft Service and Maintenance
only. Any other use must be approved by Crescent Helicopters and Broward
County Aviation Dept. SUBLESSEE is expressly restricted from conducting any
helicopter activities on the premises including but not limited to
equipment and parts sales, charters and contracts. SUBLESSEE is also
restricted from performing any aircraft or aircraft parts stripping and/or
painting activities on the Premises. Restrictions on SUBLESSEE activities
as specified above also apply to anyone subletting or renting from
SUBLESSEE.
26. HOLD HARMLESS:
SUBLESSEE shall indemnify and hold forever harmless SUBLESSOR and Broward
County, against any and all claims of every kind or character arising out
of the acts or omissions of SUBLESSOR, its directors, officers, agents, or
employees or failure of SUBLESSOR to perform or comply with any of the
terms hereof or otherwise caused by SUBLESSOR, its directors, officers,
agents, or employees on said premises (except to the extent that such
claims may be attributable to the negligence or willful misconduct of the
agents or employees of SUBLESSOR) whether such claims shall arise from or
be based upon injuries to persons (including death) or damage to property
provided SUBLESSEE shall give SUBLESSOR prompt notice of any claims, damage
or loss, or action in respect thereto, and an opportunity reasonably to
investigate and defend against any claim or action based upon alleged
negligent conduct of SUBLESSOR, its duly authorized director, officers,
agents or employees.
27. BINDING EFFECT:
The party executing this Sublease Agreement on behalf of SUBLESSOR and
SUBLESSEE respectively has the authority to bind the respective parties to
this Sublease Agreement.
28. ENTIRE AGREEMENT:
The foregoing constitutes the entire agreement between the parties and may
be modified only by a writing signed by both parties.
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IN WITNESS WHEREOF, the parties hereto have executed this instrument for the
purpose expressed, the day and year above written.
SUBLESSOR: SUBLESSEE:
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SHASTA AVIATION CORPORATION GLOBAL TURBINE SERVICES, INC.
DBA CRESCENT HELICOPTERS
BY: BY:
--------------------------------------------- --------------------------------------------
NAME: XXXX X. XXXXXX NAME:
------------------------------------------
TITLE: President TITLE:
-----------------------------------------
Signed, sealed and delivered in the presence of: Signed, sealed and delivered in the presence of:
------------------------------------------------ ------------------------------------------------
Witness Witness
In Witness whereof, the parties have made and executed this Agreement:
BROWARD COUNTY through its BOARD OF COUNTY COMMISSIONERS, signing by and
through its Chairman or Vice Chairman, _______________________, authorized to
execute same by Board Action on the ______ day of _______________, 1996.
GLOBAL TURBINE SERVICES, INC., signing by and through its ____________________
duly authorized to execute same and SHASTA AVIATION, dba CRESCENT HELICOPTERS,
signing by and through its ____________________ duly authorized to execute same.
COUNTY
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ATTEST: BROWARD COUNTY, through its
BOARD OF COUNTY COMMISSIONERS
----------------------------------------- ----------------------------------------
County Administrator and Ex-Officio Clerk day of , 1996
--------- ----------------
of the Board of County Commissioners Approved as to form by Office of County Attorney
of Broward County, Florida Broward County, Florida
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