Exhibit 10.30
AEROLEASE LONG BEACH
dba
AEROPLEX AVIATION
USE & OCCUPANCY AGREEMENT
-------------------------
Schedule A
1. User 2. Commencement Date(s):
(a) 30 days after execution of this
Gulfstream Aerospace Corporation, agreement main hangar, shop/office
a California Corporation (b) 15 days thereafter Hangar #3
4150 Donald Douglas Drive (c) 30 days after (b) Hangar #4
Long Beach, CA 90808 (d) 30 days after (c) Hangar #5
3. Utilities 4. Fee (per month)
- -Electrical supplied by User a. Main hangar: $20,000
Meter #'s b. Lean to office/shop: $7,200
1st floor lighting & a/c: P264-11868 c. Hangar #3: $5,000
shop and floor utilities: P376-169 d. Hangar #4: $5,000
Hangar #3: Y367-7735 e. Hangar #5: $5,000
Hangar #4: Y367-7725 Security Deposit: $42,200
Hangar #5: Y367-7726 (Check # )
TOTAL MONTHLY FEE: $42,200
5. Term
Two (2) years from date of occupancies 6. Aircraft Types:
for the units listed in Item 2. Various Gulfstream aircraft for
One (1)- Two (2) year renewal option related services and interior
(180 day notice required for each unit) modifications
7. Space (office/hangar #) 8. Special Terms:
a. Main hangar: 25,000 sq/ft Rent during the (2) year option
b. 1st floor Lean to period will be "at market" as
office/shop: 6,000 sq/ft mutually agreed.
c. Hangar #3: 10,000 sq/ft
d. Hangar #4: 10,000 sq/ft
e. Hangar #5: 10,000 sq/ft
AEROLEASE LONG BEACH, dba Authorization: The undersigned is
AEROPLEX AVIATION authorized to accept the terms and
conditions hereinabove
GULFSTREAM AEROSPACE CORP.,
CALIFORNIA CORPORATION
By: /s/ Milton A. Widelitz By: /s/ Ken Kelley
----------------------------- -------------------------------
Milton A. Widelitz, General Partner Ken Kelley, General Manager
Date: 4/4/97 Date: April 10, 1997
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TERMS & CONDITIONS
This use and occupancy agreement is made between Aerolease Long Beach, dba
Aeroplex Aviation, 3333 East Spring Street, Long Beach, CA 90806 ("Aeroplex")
and User, identified in Item I of Schedule A.
RECITALS
A. Aeroplex leases certain facilities and Premises (the "Site") at the Long
Beach Airport (the "Airport"). Gulfstream is entitled to ingress and
egress to the facility at all times. Gulfstream is entitled to use,
without charge, 15 parking spaces in the Aeroplex main parking lot, where
designated by Aeroplex General Manager and agreed to by Gulfstream.
B. Aeroplex leases the Site from the City of Long Beach, a municipal
corporation (the "City"). Said Agreement is hereinafter referred to as the
"Master Lease".
C. Aeroplex desires to grant to User the right to use and occupy a portion of
the Site (the "Premises").
D. In consideration of the mutual covenants herein stated:
1. Grant: Aeroplex upon the terms and conditions herein stated, grants to
User, and User takes from Aeroplex, the Premises described in Schedule A
above, Aeroplex is responsible for providing the premises and each
additional portion of the premises as called for in Schedule A, attached
hereto, free of all previous tenants and their belongings and equipment,
in a timely manner.
2. Term: This agreement shall commence on the date set forth in Item 2 of
Schedule A and continue for the period of time set forth in Item 5. In the
event User holds over at the expiration of the term or any renewal, said
holdover shall create a tenancy from month to month at one and one-half
the monthly rental specified above and shall otherwise be on the terms and
conditions hereunder.
3. Rental: User shall pay the fees set forth in Item 4 of Schedule A in
advance on the first day of each month during the term of this Agreement.
Fees shall be prorated in the event the commencement date shown in Item 2
falls on a day other than the first of the month. The fees shall be
payable without deduction or setoff, and without prior notice or demand.
Lessee hereby acknowledges that late payment by Lessee to Lessor of rent
or other sums due hereunder will cause Lessor to incur cost not
contemplated by this Agreement, the exact amounts of which are extremely
difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges, and late charges which may be imposed
upon Lessor by the term of any mortgage or deed of trust covering the
Premises. Accordingly, if any installment or rent or other sum due from
Lessee shall not be received by Lessor or Lessor's designee within five
(5) business days of its due date, then Lessee shall pay to Lessor a late
charge equal to ten percent (10%) of such amount overdue. The parties
hereby agree that such late charge represents a fair and reasonable
estimate of the cost that the Lessor will incur by reason of the late
payment by Lessee.
4. Adjustments to Fees:
(a) The total monthly fee set forth in Item 4 of Schedule A shall,
beginning with the second year of the term, be adjusted after the
end of each year and during the term of this Agreement according to
the changes in the Consumer Price Index (CPI) or the Bureau of Labor
Statistics of the U.S. Department of Labor for all Urban Consumers,
Los Angeles - Anaheim. Riverside California. "All Items". The CPI
for February, 1997 is 159.2. Adjustments shall be made in the ratio
that the change in CPI between February. 1997 and each succeeding
February, has to the earlier year. Thus, if February, 1998 CPI will
be 162.4, then the increase shall be (l62.4-l59.2)/159.2=.02 or 2%.
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(b) The total monthly fee in Item 4 of Schedule A, as adjusted annually
pursuant to this provision, shall be determined at the beginning of
each annual term by multiplying the monthly fee as adjusted by a
fraction, the numerator of which shall be the CPI for the same
month, which is three (3) months prior to the end of the annual
term, and the denominator of which shall be the CPI for the month
which is three (3) months prior to the beginning of the term of this
Agreement. Notwithstanding that Aeroplex may, at its sole
discretion, elect not to adjust the fees, or to only partially
adjust them, the adjustment to the fees hereunder shall be
calculated as if Aeroplex had made the entire adjustment permitted
hereunder. In no event shall the annual fee as adjusted be reduced.
(c) In the event the compilation and/or publication of the CPI is to be
changed or discontinued, then an index most nearly the same as the
CPI shall be used to make the above calculations.
5. Use of Premises: Premises shall be used for the purpose set forth in
Schedule A and any other purpose authorized under the Master Lease, except
the sale of aircraft fuel by User. This agreement does not give User the
right to conduct a business at the Airport; any such right can only be
obtained from the City.
6. Aircraft Support: Aeroplex hereby authorizes User to utilize any vendor it
chooses on the Premises, except for aircraft refueling. Aeroplex reserves
the right to maintain this service or designate an exclusive fuel service
provider for aircraft on the Premises only. At the time of this lease
execution the aircraft refueling service provider on the Site and Premises
is Million Air Long Beach, Inc.
7. Security Deposit: Prior to occupancy and upon execution of this Agreement,
User will deposit with Aeroplex a sum equal to the fee for one (1) month.
In the event User defaults in the performance of any of the terms and
conditions herein, Aeroplex may use, apply or retain, the deposit for the
payment of any fees, or for any sum which Aeroplex may be required to
expend by reason of User's default. In the event User fully and faithfully
complies with all terms and conditions of this Agreement the deposit shall
be returned to User at its expiration and after delivery of the Premises
to Aeroplex. User shall not apply the security deposit as rent, whether
for first or subsequent months of tenancy, including the 30 day period
after notice to vacate is provided by User to Aeroplex.
8. Alterations: User shall not make any alteration, improvements, additions
or utility installations (including power panels) in or about the
Premises, without Aeroplex's prior written consent, which consent shall
not to be unreasonably withheld. Such approvals shall also require
Aeroplex's obtaining, on behalf of User, the consent of the City. User
acknowledges that consent may be conditioned upon User's agreement to
restore Premises to the condition they were in at the commencement of the
term of this Agreement. Any such improvements that Aeroplex wants removed
at the termination of the Agreement shall be done solely at the User's
expense. Aeroplex recognizes that User is contemplating the improvements
shown in Exhibit A. Aeroplex and User agree to equally share (50% each)
the cost associated with the recommendation made by User's insurance
carrier (Factory Mutual) to provide additional support bracing to the
existing fire protection system located in the Aeroplex hangars listed in
Schedule A.
9. Repairs: User, at its sole cost and expense, shall keep the interior of
the Premises and all glass therein in good condition and repair. Upon the
expiration or sooner termination of this Agreement, the Premises shall be
returned to Aeroplex in the same condition as they were in at the
beginning of the term, normal wear and tear excepted. Except as set forth
in an addendum, if any, attached and initialed by the parties hereto,
Aeroplex makes no representation to User about the condition of the
Premises.
10. Utilities: User shall supply at its own expense, the utilities named in
Item 3 of Schedule A. Aeroplex shall not be liable for any damages caused
as a result of its failure to supply said utility services, unless such
failure is due to its gross negligence. User agrees to pay promptly all
utility obligations incurred by it on the Premises.
11. Taxes: Aeroplex shall pay all Real Estate Taxes and/or possessory interest
taxes, as presently assessed, or which may be assessed as a result of a
reappraisal of the Premises, except for appraisals caused by improvements
made by or requested to be made by User. In such event, User will only be
responsible for any increase in the taxes associated with such
reappraisal. Aeroplex will be responsible for any taxes assessed
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on improvement made to the property which were not requested by User. User
shall pay prior to delinquency all taxes assessed against and levied upon
trade fixtures, furnishings, equipment, and all other personal property of
User contained in the Premises or elsewhere on the Site. When possible,
User shall cause said trade fixtures, furnishings, equipment, and all
other personal property to be assessed and billed separately from the real
property of User. Also, User shall pay Aeroplex any increase in Real
Estate taxes attributable to the real property and improvements of the
User located on the Premises over and above the taxes assessed on the
Premises for the fiscal year of July 1, 1997 to June 30, 1998. By
executing this Agreement and accepting the benefits thereof, a property
interest may be created, known as a "possessory interest". If such
property interest may be created, User, as the party in whom the
possessory interest is vested, shall be responsible for the property taxes
levied upon such interest.
12. Signs: User shall not erect or display any signs without prior written
consent of Aeroplex, which consent shall not be unreasonably withheld.
13. Insurance/Indemnification: User agrees that at all times in which this
Agreement is in effect it will maintain, in full force and effect, an
airport (general) liability policy, including contractual, in an amount
not less than $200,000,000 combined single limit, which will be used to
indemnify and hold harmless Aeroplex Long Beach dba Aeroplex Aviation, the
City of Long Beach, members of the City Council, all of the City's boards
and commissions, and every officer and employee of the City (hereinafter
the "Additional Insured") against liability resulting from any suits,
claims, demands, actions or loss, including all costs and expense of
litigation, brought or made by reason of the use and/or occupancy by User
its officers, agents, employees, licensees, patrons, or visitors of the
Site and Premises, and of the Long Beach Airport or any of its facilities,
except for liability resulting from the sole negligence of Aeroplex, its
officers, agents, employees, licensees, patrons, or visitors
In the event Aeroplex contests User's contention that an incident is the
result of Aeroplex' sole negligence, User shall defend Aeroplex and User's
insurance carrier may subrogate against Aeroplex' insurance carrier.
Aeroplex will reimburse User if it is determined that the negligence in an
incident was solely that of Aeroplex. Aeroplex agrees to maintain
$20,000,000 of general liability insurance to protect User in the event of
an incident caused by Aeroplex' sole negligence. In such event User agrees
to cap the maximum liability of Aeroplex in the amount of $20,000,000 and
to waive any and all claims in excess of that amount. Aeroplex and User
will equally share (50% each) the additional annual premium for the
insurance necessary as a result of increasing Aeroplex' general liability
insurance policy from $10,000,000 to $20,000,000.
In addition, User will carry aircraft liability insurance, and adequate
hangarskeepers, ground and flight, and adequate automobile liability
insurance. User will carry worker's compensation insurance coverage for
all of its employees.
Except to the extent such liability has been caused by the sole negligence
of Aeroplex, its officers, agents, employees, licensees, patrons, or
visitors, all policies required by this provision shall include a
severability of interest (cross liability) clause. Said coverage shall be
primary with respect to Aeroplex. The Additional Insured shall be named as
additional insured on said policy(ies) to the extent of the protection
specified above. All insurance policies secured by User shall contain the
following: "The inclusion herein of any person or entity as an insured
shall not effect any right such person or entity would have as a claimant
hereunder if not so included".
All insurance policies shall require notification to Aeroplex by certified
mail of any modification, termination, or cancellation by the insurance
company of any policy of insurance no less than thirty (30) days prior to
the effective date of such modification, termination, or cancellation.
Notice by the insured shall be effective upon receipt of said notice by
Aeroplex.
In addition to any other requirements of this Agreement, the User shall
notify Aeroplex of any modification, termination, or cancellation of any
policy of insurance secured by User pursuant to this paragraph as soon as
User learns of any such modification, termination, or cancellation.
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The procuring of such insurance shall not be construed to be a limitation
upon User's liability or as full performance on User's responsibility to
indemnify and hold harmless Aeroplex for any and all claims brought by
others due to the negligence of User. User understands and agrees that not
withstanding any policies of insurance, User's obligation to protect and
hold harmless the Additional Insured hereunder is for the full amount of
any damage, injuries, loss expense, costs or liabilities caused by, or
attributed to, the sole negligence of the User, its officers, agents, or
employees.
14. Aircraft Ownership: Deleted - not necessary
15. Assignment and Subletting: This Agreement may not be voluntarily or by
operation of law assigned, or the Premises transferred, mortgaged, sublet,
or encumbered in whole or in part without Aeroplex's prior written consent
which consent will not be unreasonably withheld.
16. Storage: No outside ramp, alleyway, or parking lot storage of aircraft
parts or service equipment, lumber, metal, machinery, liquids, vehicles,
trailers, or other materials will be permitted. No hazardous materials
will be stored in any facility on the Site or Premises, except at the sole
responsibility of User, and in accordance with all applicable Federal,
State, and local laws and regulations.
17. FAA Regulations: User shall abide by Part 107 ("Airport Security") and
Part 139 ("Airport Safety") of the Federal Aviation Regulations, and
reimburse Aeroplex, and/or the City for the full amount of any fine,
penalty or other financial loss resulting from its failure to do so.
18. Towing of Aircraft: User, or its designated agent, shall perform all
aircraft towing at the Site.
19. Compliance with Laws: User, at its sole expense, shall comply with all
applicable statutes, ordinances, rules, regulations, and orders regulating
the use by User of the Premises. User also agrees to observe all
reasonable rules which Aeroplex, or the City may make from time to time
for the management, safety, care and cleanliness of the Premises, the
common areas, the parking of vehicles and aircraft, and the preservation
of good order therein, as well as for the convenience of other occupants
and tenants. Aeroplex rules shall be presented to User for concurrence
prior to being effected.
20. Right to Entry: Aeroplex and its designees shall have the right to enter
the Premises at reasonable times and upon prior notice for the purpose of
inspecting, showing to prospective purchasers, lenders or tenants, and
making repairs or alterations as it may deem necessary or desirable, and
at any time without notice in the event of any emergency. Such entry shall
be in accordance with User's security policies and shall be accompanied by
User's designee if User so requires, and entry shall not interfere with
User's business or maintenance of aircraft.
21. Damage: In the event the Premises are totally destroyed by fire or other
casualty, or are damaged to such an extent that Aeroplex, at its sole
option, determines to raze or remodel the building(s) located thereon,
then the term hereby created by this use and occupancy agreement shall end
on the date of such fire or casualty, and the User shall pay the rent
apportioned to the time of such fire or casualty and shall surrender
possession of said Premises. If, however, said Premises, in Aeroplex's
judgement, can be repaired with reasonable promptness so as to be in as
good condition as they were at the beginning of the term, the Agreement
and term herein created shall not be affected except that the rent shall
be apportioned or suspended while such repairs are made. If, however, said
Premises are slightly damaged by fire, accident, or casualty, and are not
thereby rendered unfit for occupancy, then the same shall be repaired by
Aeroplex with reasonable promptness and no abatement or apportionment of
rent shall be made, except to the extent such damages prevent User from
conducting the maintenance work or service work on the aircraft
22. Eminent Domain: If the whole of the buildings of which the Premises are
part shall be acquired or condemned by eminent domain for any public or
quasi-public use or purpose, then the term of this Agreement shall cease
and terminate as of the date of title vesting in such proceeding, and all
fees shall be paid
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up to that date, and User shall have no claim against Aeroplex or the
condemning authority with respect to any compensation for such taking
awarded Aeroplex whether through a negotiated settlement or formal
condemnation proceedings.
If any part of the building of which the Premises are a part shall be
acquired or condemned as aforesaid, and in the event that such partial
taking or condemnation shall render the portion of the building occupied
hereunder by the User unsuitable for the User's business, then the term of
this Agreement shall cease and terminate as of the date of title vesting
in such proceeding. User shall have no claim against Aeroplex, or the
condemning authority with respect to any compensation for such taking
awarded to Aeroplex, whether through a negotiated settlement or formal
condemnation proceedings, and provided, however, fees shall be adjusted to
the date of such termination. In the event a partial taking or
condemnation, which is not extensive enough to render that portion of the
building occupied hereunder to User unsuitable for the business of the
User, at User's sole judgement, Aeroplex shall promptly restore said
portion of said leased hereunder to its condition as nearly as possible as
existed at the time of such condemnation less the portion lost in the
taking, and this Agreement shall continue in full force and effect, and
rent shall be adjusted on the basis of the number of square feet taken on
a pro-rata basis.
23. Master Lease and Agreement: This Agreement is, and shall be at all times,
subject to and subordinate to the Master Lease. Aeroplex agrees to
maintain the Master Lease in full force and effect during the term of this
Agreement, provided however that it shall not be liable for any earlier
termination of the Sublease which is not due to its fault.
24. Default and Remedies: The occurrence of any one or more of the following
events shall constitute a material default and breach of this Agreement by
the User.
(a) User shall default in the due and punctual payment of the fees
payable hereunder, and such default shall continue for five (5) days
after Aeroplex shall have given User written notice of such default.
(b) User shall neglect or fail to perform or observe any of the
covenants herein contained on User's part to be performed or
observed other than described in subparagraph (a) above, and User
shall fail to remedy same within thirty (30) days after Aeroplex
shall have given to User written notice specifying such neglect or
failure, or if such default is incapable of being cured within
thirty (30) days, then in such event, if User shall fail to commence
the cure of such default within thirty (30) days of receipt of
written notice of same, and continue thereafter in good faith and
with due diligence to cure same; or,
(c) User shall be involved in financial difficulties as evidenced by (1)
its admitting in writing its inability to pay its debts generally as
they come due, or (2) by it its filing a petition in Bankruptcy or
for reorganization or for the adoption of an arrangement under the
Bankruptcy Act or an answer or other pleading to be filed by or on
behalf or User admitting the material allegations of such a petition
or seeking, consenting to or acquiescing in the relief provided for
under such Act, or (3) by its approving a petition filed against it
for the effecting of an arrangement in bankruptcy or for a
reorganization pursuant to said Bankruptcy Act.
In the event of any such material default or breach by User,
Aeroplex may, at anytime thereafter, with or without notice or
demand and without limiting Aeroplex in the exercise of any right or
remedy which Aeroplex may have by reason of such default or breach.
(i) Terminate User's right to possession of the Premises by any
lawful means, in which case this Agreement shall terminate and
User shall immediately surrender possession of the Premises to
Aeroplex. In such event, Aeroplex shall be entitled to recover
from User all damages incurred by Aeroplex by reason of User's
default, including but not limited to, the cost of recovering
possession of the Premises; expense of reletting, including
removal of
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the alterations User may have made during the occupancy of the
Premises, reasonable attorney fees, and any real estate
commission actually paid; that portion of any leasing
commission paid by Aeroplex applicable to the unexpired term
of this Agreement
(ii) Pursue any other remedy now or hereafter available to Aeroplex
under the laws or judicial decisions of the state wherein the
Premises are located.
25. General Provisions:
(a) Waiver: The waiver by either party of any term, covenant, or
condition herein contained shall not be deemed to be a waiver of
such term, covenant, or condition on any subsequent breach of same,
or any other term, covenant, or condition herein contained.
(b) Marginal Headings: The marginal headings and paragraph titles to the
paragraphs of this Agreement are not a part of this Agreement, and
shall have no effect upon the construction or interpretation of any
part hereof.
(c) Time: Time is of the essence in this Agreement, and each and all of
its provisions in which performance is a factor.
(d) Successors and Assigns: The covenants and conditions herein
contained, subject to the provisions as to assignment, apply to and
bind the heirs, successors, executors, administrators, and assignees
of the parties hereto.
(e) Recordation: Neither Aeroplex nor User shall record this Agreement
without prior written consent of the other party, but either party
at the request of the other shall execute a short form memorandum of
the Agreement for recording.
(f) Quiet Possession: Upon User's paying the rent reserved hereunder,
and observing and performing all of the covenants, conditions, and
provisions on User's part to be observed and performed hereunder,
User shall have quiet possession of Premises for the entire term
hereof, subject to all provisions of this Agreement.
(g) Prior Agreements: This Agreement contains all of the agreements of
the parties hereto with respect to any matter covered or mentioned
in this Agreement, and no prior agreements or understandings
pertaining to any such matters shall be effective for any purpose.
No provision of this Agreement may be amended or added to, except by
an agreement in writing assigned by the parties hereto or their
respective successors in interest. This Agreement shall not be
effective or binding upon any party until fully executed by both
parties hereto.
(h) Inability to Perform: This Agreement and the obligations of the User
hereunder shall not be affected or impaired because Aeroplex is
unable to fulfill any of its obligations hereunder or is delayed in
doing so, if such inability or delay is caused by a reason of
strike, labor troubles, acts of God, or any other caused beyond
reasonable control of Aeroplex, except that rent shall not commence
until the existing tenants have been vacated from the Premises.
(i) Attorney Fees: In the event of any action or proceeding brought by
either party against the other under this Agreement, the prevailing
party shall be entitled to recover all costs and expenses, including
the fees of its attorneys in such action or proceeding, in such
amount as the court may deem just and proper as attorney fees.
(j) Separability: Any provision of this Agreement which shall prove to
be invalid, void, or illegal shall in no way affect, impair, or
invalidate any other provision hereof, and such other provision
shall remain in full force and effect.
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(k) Cumulative Remedies: No remedy or election hereunder shall be deemed
exclusive, but shall, wherever possible, be cumulative with all
other remedies at law or in equity.
(l) Choice of Law: This Agreement shall be governerd and construed in
accordance with the laws of the State of California.
26. Premises Free of All Tenants: Deleted - not applicable.
27. Use of Premises: The Premises may be used, without approval of Aeroplex
for interior refurbishing of fixed wing aircraft, completions and other
service-related work for aircraft, or for any other use permitted under
the Master Lease, or any use required by Gulfstream and currently being
conducted by Gulfstream on its primary leased property, unless
specifically excluded by the Master Lease. Gulfstream may not sell
aircraft fuel or be fuel serviced on the premises by any provider other
than Long Beach Million Air, Inc.
28. Right to Remove Equipment or Personal Property: All personal property and
all trade fixtures placed on the Premises at the direction or with the
consent of Gulfstream, its employees, agents, licensees or invitees, shall
be the property of Gulfstream. Gulfstream may remove any such personal
property or trade fixtures at the termination of the Agreement; provided,
however, should Gulfstream cause any damage to the Premises upon the
removal of such personal property or trade fixtures, Gulfstream shall
immediately repair the damage resulting from the removal of the personal
property or trade fixtures.
29. Notice and Requests: All notices and requests hereunder shall be in
writing and shall be deemed to be effective when received at the addresses
listed below (or such other addresses as may hereafter be designated in
writing)
For Gulfstream: Kenneth D. Kelley
General Manager
Long Beach Operations
Gulfstream Aerospace Corporation, a California
Corporation
4150 Donald Douglas Drive
Long Beach, CA 90808
For Aeroplex: Milton A. Widelitz
Aerolease Long Beach, A California General
Partnership, dba Aeroplex Aviation
10850 Wilshire Boulevard, Suite 740
Los Angeles, CA 90024
30. Consent to Use and Occupancy agreement: This Agreement is contingent upon
the receipt of consent to this Agreement by the City of Long Beach Airport
Bureau.
ACCEPTANCE OF TERMS AND CONDITIONS
Aerolease Long Beach, A California Gulfstream Aerospace Corporation,
General Partnership, dba Aeroplex a California Corporation
Aviation
By:
/s/ Milton A. Widelitz /s/ Ken Kelley
- ---------------------------------- ------------------------------------
General Partner General Manager, authorized signature
DATE 4/4/97 DATE April 10, 1997
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