HomeMy WebLinkAboutbocc.res.124.2008REC~PTlt~N#: 5582a0, 04I23/2009 at
~ 0:36:22 A~19,
9 s3F 25, R$4,00 Doc Co~ie RESO~UTION
Jani~e t~. ilos Cau+dill, ~itkin ~ouraty, CO
A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS
OF PITKIN COUNTY, COLORADO APPROVING ASSIGNMENT OF SUB-LEASE
BETWEEN TRAJEN FLIGHT SUPPORT, LP AND NORTH AMERICAN FLIGHT
SUPPORT-ASPEN, LLC
RESOLUTION # ~~ Y -2008
RECITALS
1. Pitkin County ("County") and Trajen Flight Support, LP ("Trajen") have entered into a
Master Lease and Use Agreement for a 30-year term as of Full Service Fixed-Base
Operator ("FBO") at the Aspen/Pitkin County Airport, operating as Atlantic Aviation
Services.
2. On August 23, 2006, the County approved a sublease between Trajen and North
American Flight Support-Aspen, LLC ("North American") for the aircraft maintenance
responsibilities under the lease to West Star Aviation, Inc. The Master Lease allows for
this type of sub-lease, with the consent of the County.
3. Trajen wishes to now assign the sublease between Trajen and North American to West
Star Aviation, Inc.
4. The proposed sub-lease does not remove any of the responsibilities Trajen has under the
Master Lease nor does it remove any of Trajen's responsibilities to perform any of the
services required under the Minimum Standards for Aeronautical Activities.
NOW THEREFORE, be it resolved by the Board of County Commissioners of Pitkin
County Colorado, that the Board does hereby approve the assignment of sub-lease between
Trajen Flight Support, LP and North American Flight Support Aspen, LLC to West Star
Aviation, Inc. ~
1NTRODUCED, FIRST READ AND SET FOR PUBLIC HEARING ON NOVEMBER 5, 2008
NOTICE OF PUBLIC HEARING 1NCLUDING FULL TEXT OF RESOLUTION PUBLISHED
IN THE ASPEN TIMES WEEKLY ON NOVEMBER 9, 2008,
ADOPTED AFTER SECOND READING AND PUBLIC HEARING ON NOVEMBER 19,
2008.
PUBLISHED BY TITLE AND SHORT SUMMARY, AFTER ADOPTION,IN THE ASPEN
TIMES.WEEKLY ON NOVEMBER 30, 2008.
-1-
ATTEST: BOARD OF COUNTY COMMISSIONERS
OF PITHIN COUNTY, COLORADO
,%~ 'l ~,~ ~z~l ~ ~'J'; ~ ~ ~ -~ ~ `~ ~-~ ` ,~ .
Jea~ie' e Jones Jac tfield "
Depw~y Clerk ; Ch ' man y~'
APPROVED AS TO FORM:
John M. Ely
County A~t~
;
; ; ~. ~
~ ,i s ' ,i '
Jim Elwood
Airport Director
~ ~ ~ ~2 ~ ; ,
Hilary Flet r
County M ger
-2-
~
ATTEST:
Jeanette Jones
Deputy Clerk
APPROVED AS TO FORM:
John M. Ely
County A~~o
, ~
T-`~ ~
.~~ -' ,w~ i
~i.~Elwood
Airport Director~
Hilary Fletcher
County Manager
BOARD OF COUNTY COMMISSIONERS
OF PITHIN COUNTY, COLORADO
Jack Hatfield
Chairman
-2-
~
~
CONSENT TO ASSIGNMENT OF SUBLEASE
This Consent to Assignment of Sublease ("Consent"), dated as of the 5~` day of November,
2008 (the "Effective Date"), is by and between the Board of County Commissioners of Pitkin
County, Colorado ("Landlord"), Trajen Flight Support, LP, a Delaware limited partnership
("Tenant") and West Star Aviation Inc. ("Subtenant").
RECITALS
A. Tenant leases space (the "Premises") for the operation of its fixed base flight support
operation for commercial and private aircraft located in the GA Charter Terminal (the
`Building") at the Aspen/Pitkin County Airport in Aspen, Colorado (the "Airport")
pursuant to that certain Lease and Use Agreement dated October 1, 1993 as amended by
the first Amendment to Lease and Use Agreement dated September 26, 2001 as so •
amended, (the "Master Lease").
B. On August 23, 2006, The County approved a sublease dated July 30, 2006 between
Trajen and North American Flight Support-Aspen, LLC ("Subtenant") for Subtenant to
perform the Tenant's aircraft maintenance responsibilities required under Tenant's
Master Lease.
C. Tenant and Subtenant wish to assign the Sublease Agreement dated as of July 30, 2006
for the Sublease Premises (the "Sublease"), a copy of which is attached hereto as
E~ibit A to West Star Aviation, Inc ("Sublessor"). In accordance with the Master
Lease, Tenant must receive Landlord's written consent prior to the Sublease becoming
effective.
D. Landlord has agreed to assignment of the Sublease pursuant to the terms and conditions
of this Consent.
AGREEMENT
In consideration of the foregoing recitals, which are incorporated herein by this reference, and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. COMPLETE AGREEMENT
Tenant represents and warrants that a true and complete copy of the Sublease to be assigned
is attached hereto, and the Sublease constitutes the complete agreement between Tenant and
Sublessor with respect to the subject matter thereof.
2. SUBORDINATION
Landlord consents to Tenant assigning the sublease dated July 30, 2006 to Sublessor pursuant
to the terms and provisions in the Sublease. The assigned Sublease shall be subject and
subordinate to the Master Lease and all of its provisions. Only the Master Lease governs
landlord's obligations to Tenant and by this Consent Landlord shall not be bound or estopped by
any provision of the Sublease.
-3- ~
3. NO FURTHER CONSENT
Landlord's consent to assignmerit of the Sublease shall not be deemed to be a consent to any
modification, supplement or amendment of the Sublease, or to any assignment of the Sublease or
sub-subletting of the Sublease Premises, or to any additional subleasing of the Sublease Premises
or any other portion of the Premises, each of which requires Landlord's prior written consent
(except that Tenant may terminate the Sublease without Landlord's prior consent). Neither the
execution and delivery of this Consent of the Sublease, nor any acceptance of rent or other
consideration from Subtenant by Landlord or Landlord's agent shall operate to waive, modify,
impair, release or in any manner affect Tenants' liability or obligations under the Master Lease
of Subtenant's liability or obligations under the Sublease; except, however, payment by
Subtenant of any of its obligations under the Sublease shall be deemed to be have satisfied such
obligation under such Sublease.
Landlord has caused this Consent to be executed as of the Effective Date.
LANDLORD:
Board of County Commissioners of Pitkin County,
Colorado, a home rule county
By: ~~
Name: :~".~-c k- ~{ 7" ~ l
Title: ~o c C ~
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Efi'ecti~~r D~tc.
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Assignment Of Sublease {jrs v11-17-Q$>
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tc~ the ~e~rtctif c~f r~ssi~nc~r anci A,ssi~stt~ ti~nc~ tl~eir r~spec.tiw=c si~cc~:~sc~rs a~~ti ~ssi~ns.
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c~ntz~irl t1i~; ~i<,~s~atur~:s c~t' ti:~rer tl~ax~ ~~E1 c~#' t11~: ~arties l~~t ali c>f~ ~illicll sla~ll bi~ ta~:ei~
tc~~etl~er a.~ a s'rr~~ie,~ iT~~lrutnent.
8. Sr~cCic~n Itet~~-~nces~ `I`he s~:ctiu~~ cl~~d c>tl~er 1i4;~ciizY~s cantrtineci ir1 thi,
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intc:r~ir~:t~~ti~~ra t~('tl~is ~'1~rtei~te~~t.
~1. C;o~~~ra~ir7~ I_4~~~. Cl~i; .Ossi~ni7~er7t si7zill hr t.~c,~er~tec3 ttzi~i it~tcr~r~tecl in
tj~;ct~rt3~tnit t~,it1Y th~ t~3~`:; czt~ ilt~ ~Stat~ r~l` C"f>Ic~radc>.
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Ass}gnment n£Su6lease (jrs vt t•i7•OS}
378359 vi
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atlci E'lssun~~tic~~1 c~fl.~:as~: tc~ E~e e~eci~t4c3 a, c~t"th~: date lirst ~.~~~itt~:~~ r~~i~c~e.
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378359 vt
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Assignment ot Sublease ~jrs v11-1°•O8~
378369 v1
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9
EXHIBIT A-SUBLEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease") is made this 30th day of June, 2006, by and
between Trajen Flight Support, LP, a Delaware limited partnership (hereinafter referred to as
"Landlord"), and North American Jet Maintenance - Aspen, L.L.C., a Colorado limited liability
company (hereinafter referred to as "Tenant").
SECTION 1. DEMISED PREMISES; USE.
1.1 In consideration of the rent to be paid hereunder and in consideration of the other
provisions of this Lease, Landlord hereby leases unto Tenant, and Tenant hereby leases from
Landlord, the premises (together with all easements, rights and privileges appurtenant thereto)
commonly known as Landlord's shop maintenance hangar/building at Sardy Field, Aspen,
Colorado (the "Airport"), as depicted on the site plan attached hereto as "Exhibit A" and
incorporated herein ("Demised Premises").
1.2 The Demised Premises may be used and occupied for purposes of aircraft
maintenance and any related lawful business, subject to any and all limitations that might be
contained in Landlord's lease with the City of Aspen (the "Master Lease"). Tenant shail not use
or occupy the Demised Premises or permit the Demised Premises to be used or occupied
contrary to any statute, rule, order, ordinance, requirement or regulation applicable thereto or in
any manner which would violate any certificate of occupancy for the Demised Premises. Tenant
acknowledges that its use of the Demised Premises is subject to all applicable provisions of the
Master Lease. Landlord and Tenant agree that Landlord has the right to enter into this Lease.
SECTION 2. TERM: OPTION TO EXTEND.
2.1 The term ("Term") of this Lease sha11 commence on the date of this Lease
("Commencement Date"), and shall end at midnight on May 31, 2023.
2.2 Tenant shall have the right at the end of the second (2"d) lease year, fourth (4~')
lease year, sixth (6~') lease year, eighth (8th) lease year, tenth (lOth) lease year, twelfth (12th) lease
year and fourteenth (14~`) lease year, to terminate this Lease upon written notice delivered to
Landlord at least thirty (30) days after the end of the applicable lease year end, setting forth the
desired date of termination, without any penalty or payment by Tenant whatsoever. Upon such
termination, Tenant shall vacate the Demised Premises in accordance with Section 30 and
thereafter Tenant shall be released from all future obligations and liabilities hereunder; however,
such termination shall not affect any liabilities or obligations which may have accrued prior to
such termination and shall not affect any obligations that may survive termination, including
without limitation, Tenant's indemnity obligations hereunder. If at any time should Tenant's
maintenance and related services fall below minimum industry standards of quality, then
Landlord shall send a notice of such default to Tenant. In the event that Tenant has not cured
such default within thiriy (30) days after receipt of written notice of such default then Landlord
may terminate this Lease, except that such thirty (30) day period shall be extended for a
reasonable period of time if Tenant is not able to cure such matters within said thirty (30) day
period but Tenant has commenced activities to cure the same.
-s- ~D
SECTION 3. RENT.
3.1 For the first twelve (12) months of the Term, Tenant shall pay to Landlord annual
rent ("Rent") of Thirty Thousand and 00/100 Dollars ~$30,000.00), payable in equal monthly
installments of Two Thousand Five Hundred and 00/100 Dollars ($2,500.00). The Rent for the
second twelve (12) months of the Term shall be Thirty Eight Thousand Seven Hundred and
00/100 Dollars ($38,700.00) payable in equal monthly installments of Three Thousand Two
Hundred Twenty-Five and 00/100 Dollars ($3,225.00); and, thereafter, Rent for each subsequent
sixty (60) months of the Term (each such period a"Rent Escalation Period") shall increase as
agreed upon by the Parties. In no event shall any increase in Rent for any Rent Escalation Period
exceed twenty-five percent (25%) of the Rent paid for the immediately preceding Rent
Escalation Period; it being agreed by the parties hereunder that Rent will remain constant for
each month of each Rent Escalation Period. Tenant shall also pay its proportionate share of
Landlord's actual electricity bills for the Premises not to exceed thirty percent (30%) thereof; and
Tenant's proportionate share of Landlord's actual natural gas bills and real estate taxes for the
Premises not to exceed fifty percent (50%) thereof. Notwithstanding the foregoing, Landlord
may pass through to Tenant Tenant's proportionate share of any increase in ground rent or other
customary charges or expenses with respect to the Demised Premises that are beyond Landlord's
direct control. Tenant shall pay the Rent to Landlord in advance on the first clay of each calendar
month during the Term. If the Commencement Date for the Term occurs on a day other than the
first day of a calendar month, Tenant shall pay on the Commencement Date as Rent for the
period from the Commencement Date until the first full calendar month an amount equal to the
monthly Rent prorated on a daily basis for such partial month.
3.2 All payments of Rent (unless otherwise specified in this Lease as to certain
payments of Additional Rent) shall be made to Landlord at Landlord's address set forth in
Section 21, or such other place as Landlord may specify from time to time by written notice
delivered to Tenant in accordance with Section 21 at least thirty (30) days in advance.
3.3 . Notwithstanding anything in this Section 3 to the contrary, Rent for the Demised
Premises shall abate the period commencing on June _, 2006 and ending on July 31, 2006 (the
"Abatement Period"), and Tenant shall not be responsible for payment of any other amounts
which Tenant is or becomes obligated to pay to Landlord under this Lease during the Abatement
Period.
SECTION 4. FUEL CHARGES.
Landlord hereby acknowledges and agrees that any aircraft fuel (whether Jet A or 100
Low Lead) supplied to Tenant, or any affiliated companies owned or controlled directly or
indirectly by Kenneth D. Ross, for aircraft operated on Tenant's or its affiliates' charter
certificate or managed or operated by Tenant or its affiliates at the Airport, and any other
location of Landlord's in the United States of America, shall be supplied to Tenant and its
affiliated companies, at a cost equal to Landlord's actual acquisition cost for such aircraft fuel
plus applicable credit card charges and airport flowage fees plus ninety cents ($0.90) per gallon.
SECTION 5. CONDITION; MAINTENANCE; REPAIRS.
5.1 Landlord represents and warrants to Tenant that as of the Commencement Date (i)
the Demised Premises and all improvements located thereon comply with all federal, state and
local laws (including all common laws), regulations, codes and ordinances ("Laws"); (ii) the
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Demised Premises and all improvements located thereon are in good condition and repair,
subject to ordinary wear and tear; (iii) as of the date hereof, Landlord has performed all of its
obligations under the Master Lease; and (iv) there are no mortgages, deeds of trust, liens,
covenants, conditions, restrictions, easements or any other liens or encumbrances ("Liens")
affecting the Demised Premises except (A) Liens which do not and could not unreasonably
interfere with Tenant's use or occupancy of the Demised Premises and (B) the Master Lease, any
related encumbrances, and mortgages or deeds of trust in favor of Landlord's purchase money
lenders related to the acquisition of the Demised Premises by Landlord. If at any time the
Demised Premises does not comply with the standards set forth in the Master Lease (except for
matters addressed in Sections 19 and 20 which shall be governed solely by such sections or
matters caused by Tenant's negligence or willful misconduct), then the Demised Premises will
be brought up to all necessary standards at Landlord's sole cost and expense. If Landlord fails to
prosecute such work diligently and continuously until completion, then Tenant may prosecute
such work itself and apply the cost of such work against the next Rent obligation due hereunder.
Landlord shall also be responsible for paying any and all fines or penalties assessed by any
governmental authority during the Term in connection with any failure of the Demised Premises
to comply with any Laws or the terms of the Master Lease (except for matters addressed in
Sections 19 and 20 which shall be governed solely by such sections or matters caused by
Tenant's negligence or willful misconduct).
5.2 Landlord covenants and agrees, at its expense without reimbursement or
contribution by Tenant, to keep, maintain and replace, if necessary, the foundations, the exterior
paint, the plumbing system, the electrical system, the HVAC system, the utility lines and
connections to the Demised Premises, the sprinkler mains, if any, and all structural elements of
all improvements located on the Demised Premises, including, without limitation, the roof (and
all interior elements if damaged by leakage), load-bearing and masonry walls and floor slabs, in
good condition and repair. In the event any such elements of the Demised Premises become out
of repair due to either the failure of Landlord to comply with the terms of this Section or a latent
defect, then Landlord shall perform or cause the landlord ur~der the Master Lease to perform any
and all repairs necessary to restore such elements of the Demised Premises to a state of good
condition and repair in accordance with this Lease. If such repairs are not completed within ten
(10) days after Landlord has received written notice from Tenant of such state of disrepair or if
such repairs cannot reasonably be completed within such ten (10) day period and Landlord shall
fail to commence such repairs with such ten (10) day period or fail to pursue such repairs
diligently to completion thereafter, then Tenant may either (i) terminate this Lease immediately
upon delivery of written notice to Landlord or (ii) prosecute such repairs itself and apply the cost
of such repairs against the next maturing monthly installment or installments of Rent and other
charges due by Tenant hereunder. Notwithstanding the foregoing, in the case of an emergency,
Tenant shall have the right to prosecute immediately any and all necessary repairs and shall
deliver contemporaneous notification to Landlord of the emergency and related repairs and offset
the cost of such repairs against the next maturing monthly installment or installments of Rent and
other charges due by Tenant hereunder; provided further that if contemporaneous notice is not
practicable, as determined by Tenant in its sole judgment, then Tenant shall provide such notice
as soon thereafter as reasonably practicable. Landlord's obligations under this Section shall not
include such maintenance, repairs or replacements required as a result of any damage caused by
Tenant, its employees, agents, contractors, customers or invitees or by Tenant's failure to
maintain and repair the Demised Premises as required under this Lease.
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5.3 Except for Landlord's maintenance and repair obligations under Section 5.2
above, Tenant sha11, at its sole cost and expense, maintain the Demised Premises in operating
order and condition during the Term, subject to reasonable wear and tear, daxriage caused by the
negligence of Landlord or its employees, agents, contractors, customers or invitees and damage
from casualty and condemnation. Any repairs required by Tenant under this Section shall be
made in a good and workmanlike manner with materials of substantially similar quality to the
original materials in the Demised Premises which are repaired or replaced. Tenant's obligations
under this Section shall be subject to the provisions of Sections 9 and 10.
SECTION 6. 1NSURANCE.
6.1 Landlord agrees to carry, at Landlord's own cost and expense, during the term
hereof, Commercial General Liability insurance on the Demised Premises, naming Tenant as an
additional insured providing coverage as required by the Rules and Regulations and Minimum
Standards promulgated by the Airport.
6.2 Landlord also agrees to carry, at Landlord's own cost and expense during the
Term hereof, a11 risk property insurance covering fire and extended coverage, vandalism and
malicious mischief, sprinkler leakage and all other perils of direct physical loss or damage
insuring the improvements and betterments located in the Demised Premises, and all
appurtenances thereto (excluding Tenant's Property) for the full replacement value thereof.
63 Tenant agrees to carry Commercial General Liability insurance on the Demised
Premises during the Term hereof covering Tenant and Fire and Legal Liability insurance on the
Demised Premises in the amount of Fifty Thousand Dollars ($50,000.00). Such Commercial
General Liability insurance shall be for limits of not less than Ten Million Dollars
($10,000,000.00), combined Bodily Injury and Property Damage Liability and in separate limits
of One Million Dollars ($1,000,000.00) for each of the following: General Aggregate, Products-
Completed Operations Aggregate and Each Occurrence. Landlord shall be added as an
additional named insured to all such policies.
6.4 Except for any landlord's lien that may attach due to a Tenant default, Landlord
agrees that it shall not have any right, title or interest in and to Tenant's property insurance
covering Tenant's Property located on or within the Demised Premises or any proceeds
therefrom.
6.5 Landlord and Tenant and all parties claiming under them, mutually release and
discharge each other from all claims and liabilities arising from or caused by any casualty or
hazard, covered or required hereunder to be covered in whole or in part by insurance on the
Demised Premises or in connection with property on or activities conducted on the Demised
Premises, and waive any right of subrogation which might otherwise exist in or accrue to any
person on account thereof.
6.6 Landlord and Tenant each shall ensure that any contractors performing work on
the Demised Premises on behalf of such party shall maintain Commercial General Liability
insurance in an amount with a combined single limit of One Million Dollars ($1,000,000.00),
with a reasonable deductible, for the benefit of Landlord and Tenant.
6.7 Upon written request of either party, the other party shall furnish the requesting
party with certificates of the insurance which such party is required to carry under this Section.
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Such certificates shall provide that the insurer give the certificate holder at least thirty (30) days
prior written notice of any cancellation or material amendment of the policy in question.
SECTION 7. INDEMNIFICATION.
7.1 Subject to Section 20 below, Tenant hereby indemnifies and holds Landlord and
its officers, directors, partners, employees, affiliates and contractors harmless from and against
any and all losses, claims, demands, liabilities, damages, fines, costs and expenses (including
reasonable attorneys' fees and expenses) arising, prior to the date hereof, from Tenant's use of
the Demised Premises or from any act permitted, or any omission to act, in or about the Demised
Premises by Tenant or its agents, employees or contractors during the Term or from any breach
or default by Tenant of this Lease, except to the extent any such claims, demands, liabilities or
expenses axe caused by Landlord's negligence or willful misconduct. In the event any action or
proceeding shall be brought against Landlord by reason of any such claim, demand, liability or
expense, Tenant shall defend the same at Tenant's expense by counsel reasonably satisfactory to
Landlord.
7.2 Subject to Section 20 below, Landlord hereby indemnifies and holds Tenant and
its members, managers, employees, affiliates and contractors harmless from and against any and
all losses, claims, demands, liabilities, damages, fines, costs and expenses (including reasonable
attorneys' fees and expenses) arising, from and after the date hereof, from Landlord's use of the
Demised Premised or from any act permitted, or any omission to act, in or about the Demised
Premises by Landlord or its agents, employees, contractors or invitees, except to the extent any
such claims, demands, liabilities or expenses are caused by Tenant's negligence or willful
misconduct during the Term. In the event any action or proceeding shall be brought against
Tenant by reason of any such claim, demand, liability or expense, Landlord shall defend the
same at Landlord's expense by counsel reasonably satisfactory to Tenant.
SECTION 8. ASSIGNMENT AND SUBLETTING.
8.1 Tenant shall have the absolute right to sublet, assign or otherwise transfer its
interest in this Lease, without Landlord's approval, to any affiliated companies owned or
controtled directly or indirectly by Kenneth D. Ross. In the event any entity or individual
purchases all or substantially all of the assets or a majority of the equity interest of Tenant,
consent of Landlord will be required; however, such consent may not be unreasonably withheld.
Upon the occurrence of any such event, Tenant shall automatically be released from all liability
with respect to that portion of the Tenant's leasehold estate so assigned or subleased but not from
any accrued obligations or liabilities of Tenant at the time of such assignment.
8.2 Any other assignment of the Lease or subletting of Tenant's leasehold estate
hereunder shall require the prior written consent of Landlord, which shall not be unreasonably
withheld, conditioned or delayed; provided, however, if Landlord fails to respond to any request
by Tenant for Landlord's consent within thirty (30) days of such request, the consent of Landlord
to such assignment or subletting shall be deemed given.
8.3 Landlord shall have the right to transfer, assign and convey, in whole or in part,
any or all of its right, title and interest in the Demised Premises without consent of Tenant;
provided such transferee or assignee shall be bound by the duties, obligations and covenants of
Landlord hereunder and shall expressly assume and agree to perform such duties, obligations and
covenants. Notwithstanding anything in this Section 8.3 to the contrary, should any such
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transferee or assignee be unacceptable to Tenant in Tenant's good faith discretion, Tenant shall
have the right, at its sole election, to terminate this Lease provided Tenant does so within one
hundred and eighty (180) days from the date Tenant is provided notice of such transfer or
assignment and further provided that Tenant give sixty (60) days notice prior to such termination
being effective.
SECTION 9. REPAIR AFTER CASUALTY.
In the event the Demised Premises is hereafter materially damaged or destroyed or
rendered fully or partially untenantable for its accustomed use, by fire or other casualty, then
Tenant shall have the right to terminate this Lease effective thirty (30) days after delivery of
written notice to Landlord. If Tenant does not elect to terminate this Lease, then Landlord shall,
at its cost and expense, restore, within a reasonable period of time (not to exceed one hundred
and eighty (180) days), the Demised Premises to a substantially similar condition as existed prior
to such casualty. From the date of such casualty until the Demised Premises is so repaired and
restored, all Rent and all other charges payable by Tenant hereunder shall abate in such
proportion as the part of the Demised Premises thus destroyed or rendered untenantable, in the
good faith opinion of Landlord, bears to the total square footage of the Demised Premises.
Further, if it is at any time anticipated that such casualty cannot be repaired within one hundred
and eighty (180) days, then Tenant shall have the right to terminate this Lease, effective as of the
date of the occurrence of such casualty, by delivering written notice thereof to Landlord within
thirty (30) days of the time at which it becomes apparent that such damage cannot be repaired
with such time frame. Upon any such notice by Tenant to terminate, this Lease shall terminate
and Rent and all other charges payable by Tenant hereunder shall abate as aforesaid from the
date of such casualty, and Landlord shall promptly repay to Tenant any Rent paid in advance
which has not been earned as of the date of such casualty. From and after such date, Tenant shall
be fully released from all future obligations and liabilities hereunder.
SECTION 10. EMINENT DOMAIN.
10.1 If, by exercise of the right of condemnation or eminent domain, or by conveyance
made in response to the threat of the exercise of such right (a "Takin~"), so much of the Demised
Premises is taken that the.Taking materially interferes with Tenant's ability to use the Demised
Premises in the operation of the Business, this Lease shall end on the earlier of the vesting of title
to the Demised Premises or the taking of possession of the Demised Premises by the condemning
authority (the "Endin~Date"), in which case all Rent shall be pro-rated according to such Ending
Date (and on the basis of a 365 day calendar year).
10.2 If such Taking does not materially interfere with Tenant's ability to use the
Demised Premises in the operation of the Business, then:
(a) this Lease shall end on the Ending Date as to the part of the Demised
Premises which is taken and a11 Rent and other obligations of Tenant shall cease with
respect to such part of the Demised Premises;
(b) beginning on the day after the Ending Date, rent for so much of the
Demised Premises as remains shall be reduced in proportion to the square footage of the
Demised Premises remaining after the Taking relative to the square footage of the
Demised Premises before the Taking; and
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(c) Landlord shall, at its cost and expense, restore, within a reasonable period
of time, so much of the Demised Premises as remains in order to permit Tenant's
operation of the Business in substantially the same manner as Tenant conducted such
Business prior to such Taking.
10.3 In connection with any Taking under this Section, Landlord shall be entitled to all
proceeds or awards in connection with such Taking relating to its fee interest and Tenant shall be
entitled to all proceeds or awards relating to its interest under this Lease, including any loss of
Tenant's Property and moving expenses.
SECTION 11. EVENT OF DEFAULT.
Any of the following shall be deemed an event of default by Tenant:
(a) Any failure by Tenant to pay Rent or make any other payment required to
be made by Tenant hereunder within ten (10) days after receipt of written notice from the
Landlord; and
(b) A failure by Tenant to observe and perform any other material provision
of this Lease to be observed or performed by the Tenant, where such failure continues for
thirty (30) days after written notice thereof by Landlord to Tenant, except that this thirty
(30) day period shall be extended for a reasonable period of time if the alleged default is
not reasonably capable of cure within said thirty (30) day period and Tenant proceeds to
cure such default within such period.
SECTION 12. LANDLORD' S REMEDIES.
12.1 In addition to the right to seek and recover any unpaid Rent or other monetary
obligation from Tenant, in the event of any such default by Tenant, Landlord shall be entitled to
terminate this Lease by giving written notice of ternunation to Tenant, in which event Tenant
shall immediately surrender the Demised Premises to Landlord. If Tenant fails to so surrender
the Demised Premises, then Landlord may, without prejudice to any other remedy it has for
possession of the Demised Premises or arrearages in Rent or other damages, re-enter and take
possession of the Demised Premises and expel or remove Tenant and any other person occupying
the Demised Premises or any part thereof, in accordance with applicable law.
12.2 Notwithstanding anything to the contrary contained in this Lease: (i) Landlord
shall not have any right to accelerate the Rent and other amounts payable hereunder; (ii)
Landlord shall not have the right to terminate this Lease or Tenant's right to possession of the
Demised Premises if Tenant in good faith exercises its rental offset rights set forth herein; and
(iii) in the event of any default by Tenant under this Lease, Landlord shall, in each case, use all
reasonable efforts to mitigate its damages.
12.3 No right or remedy herein granted or otherwise conferred upon or reserved to
Landlord shall be considered exclusive of any other right or remedy, but the same shall be
cumulative and shall be in addition to every other remedy given hereunder now or thereafter
existing at law or in equity, and every power and remedy given by this Lease to Landlord may be
exercised from time to time and as often as occasion may arise or as may be deemed expedient.
No delay or omission of Landlord to exercise any right or power arising from any default shall
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impair any such right or power or shall be construed to be a waiver of any such default or an
acquiescence therein.
SECTION 13. LANDLORD' S DEFAULT.
If Landlord should default in the performance of any of its obligations under this Lease
for a period of more than thirty (30) days after receipt of written notice from Tenant specifying
such default, or if such default is of a nature to require more than thirty (30) days to remedy and
continues beyond the time reasonably necessary to cure such default (or Landlord has not
undertaken procedures to cure such default within such thirty (30) day period or diligently
pursued such procedures), Tenant may, in addition to any other remedy available at law or in
equity, (i) terminate this Lease or (ii) incur any expense necessary to perform the obligation of
Landlord specified in such notice and deduct such expense from .the Rent or other charges next
becoming due to Landlord.
SECTION 14. SUBORDINATION AND NONDISTURBANCE.
14.1 Upon written request of Landlord, Tenant will, in writing, subordinate its right
hereunder to the Master Lease and any lien of any mortgage or deed of trust now or hereafter in
force against the Demised Premises or any building located thereon; provided, however, that the
landlord in said Master Lease and mortgagee or trustee named in said mortgage or trust deed
shall agree that, so long as Tenant is not in default under this Lease, Tenant's peaceable
possession of the Demised Premises or its rights under this Lease will not be disturbed on
account thereof.
14.2 In the event any proceedings are brought for foreclosure, or in the event of the
exercise of the power of sale under any mortgage or deeds of trust to which Landlord is a party,
Tenant agrees to recognize such beneficiary or purchaser of the Demised Premises as the
Landlord under this Lease, provided, and so long as Tenant is not in default hereunder, such
beneficiary or purchaser recognizes Tenant as tenant under this Lease.
SECTION 15. QUIET ENJOYMENT.
Landlord warrants that Tenant shall have. quiet and peaceable possession and enjoyment
of the Demised Premises, without any hindrance or disturbance whatsoever, throughout the
Term, subject to all of the terms and conditions of this Lease.
SECTION 16. NO WAIVER OF DEFAULT.
No waiver by either party of any of the duties, obligations, covenants or conditions
required to be performed by the other party under this Lease and no waiver of any legal or
equitable relief or remedy shall be implied by the failure of either party to assert any of its rights
or to declare any forfeiture, and no waiver of any of said duties, obligations, covenants or
conditions shall be valid unless it shall be signed in writing by the party against whom such
waiver is claimed. In addition, no waiver of any particular right by either party shall be deemed
to waive the assertion of that right or any other rights in the future.
SECTION 17. RECORDING.
The parties agree not to place this Lease of record, but each party shall, at the request of
the other, execute and acknowledge a short form or memorandum of lease which may be
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recorded and which shall indicate only the Term, the Commencement Date and the expiration
date of this Lease (and shall omit Rent and any other economic terms); provided, however, that
the failure to record said short form lease or memorandum of lease sha11 not affect or impair the
validity and effectiveness of this Lease. The party requesting such short form or memorandum
of lease shall pay for the cost of recording the same.
SECTION 18. IMPROVEMENTS AND ALTERATIONS BY TENANT;
TENANT' S PROPERTY.
18.1 Tenant shall have the right, at any time during the Term, to make any non-
structural and non-material alteration or improvement to the Demised Premises or any
improvement located thereon without Landlord's prior approval.
18.2 Any trade fixtures, business equipment, inventory and other personal property
installed in or on the Demised Premises by Tenant ("Tenant's Propertv"), shall remain the
property of the Tenant. Subject to any applicable Landlord's lien on Tenant's default, Landlord
agrees that Tenant shall have the right, at any time and from time to time, to remove any and all
of Tenant's Property. Tenant, at its expense, shall repair any damage occasioned by the removal
of Tenant's Property and shall leave the Demised Premises in the condition specified in Section
30 at the expiration of the Term or the earlier termination of the Lease in accordance herewith.
SECTION 19. COMPLIANCE WITH LAWS.
Subject to Sections 5, 7 and 20, Tenant agrees to comply with all Laws relating to the
performance of its obligations hereunder and its use and occupancy of the Demised Premises
during the Term. Subject to Sections 5, 7 and 20, Landlord agrees to comply with all Laws
relating to the performance of its obligations hereunder and any use by Landlord (or its
employees, contractors, agents, licensees or invitees) of the Demised Premises during the Term.
Tenant agrees to permit Landlord access to the Premises in accordance with Section 27 to allow
Landlord to comply with such requirements.
SECTION 20. ENVIRONMENTAL MATTERS.
Landlord agrees to defend, indemnify, and hold harmless Tenant and its officers,
directors, stockholders, employees, affiliates and contractors from and against any and all losses,
claims, demands, liabilities, damages, fines, costs and expenses (including reasonable attorneys'
fees and expenses) arising under or relating to Laws concerning pollution or the protection of
human health or the environment, including but not limited to those pertaining to the release or
threatened release of petroleum or hazardous materials, substances or wastes ("Environmental
Liabilities") relating to the Demised Premises, except to the extent that such Environmental
Liabilities are caused by or result from the acts of Tenant or its employees, authorized agents or
contractors during the Term. Tenant agrees to defend, indemnify, and hold harmless Landlord
and its officers, directors, partners, employees, affiliates and contractors from and against any
and all Environmental Liabilities relating to the Demised Premises to the extent such
Environmental Liabilities are caused by or result from the acts of Tenant or its employees,
authorized agents or contractors with respect to Demised Premises during the Term.
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SECTION 21. NOTICES.
Any notices, requests for consent or approval or demands (each a"Notice") required or
desired to be given by or on behalf of either party upon the other sha11 be in writing and shall be
given by (a) mailing such Notice by certified mail; (b) nationai overnight courzer; (c) facsimile;
or (d) personal delivery service addressed as follows:
To Landlord: c/o Trajen, Inc.
3131 Briarcrest
Suite 100
Bryan, Texas 77802
Attention: Don Prescott
Telephone: (979) 393-9932
Facsimile: (979) 260-4009
with a copv to: Squire, Sanders & Dempsey L.L.P.
600 Travis
Suite 6250
Houston, Texas 77002
Attention: Allen Ashcraft
Telephone: (713)~546-5855
Facsimile: (713) 546-5830
To Tenant: North American Jet Maintenance - Aspen, L.L. C.
1011 South Wolf Road
Wheeling, Illinois 60090
with a co~y to: Neal, Gerber & Eisenberg LLP
2 North LaSalle Street
Chicago, Illinois 60602
Attention: Robert D. Zimelis
Telephone: (312) 269-8095
Facsimile: (312) 269-0260
or to such other address as may be specified in writing from time to time and delivered to the
other party pursuant to this Section at least thirty (30) days in advance. Each such Notice shall
be deemed to be delivered upon (i) actual receipt of notice by the party to whom such Notice is
sent, provided~ such Notice is received prior to 5:00 p.m. of the recipient's local time on a
business day, otherwise such Notice shall be deemed to be delivered upon the following business
day; or (ii) when the delivery of such Notice is refused; or (iii) when the delivery of such Notice
is attempted but unsuccessful because the party to whom such Notice is sent did not notify the
other party of its change in address as required under this Lease. Landlord and Tenant
acknowledge and agree that any Notice from their respective counsel identified above, or such
other counsel as may be specified in writing from time to time and delivered to the other party
pursuant to this Section, shall constitute a Notice from the party whom such counsel represents.
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SECTION 22.
APPLICABLE LAW AND CONSTRUCTION: NO PARTNERSHIP.
The laws of the state in which the Demised Premises is located shall govern the validity,
performance and enforcement of this Lease. The invalidity or unenforceability of any provision
of this Lease shail not affect or impair any other provision. All negotiations, considerations,
representations and understandings between the parties are incorporated in this Lease and this
Lease may be modified or altered only by an agreement in writing between the parties. This
Lease has been negotiated by Landlord and Tenant and the Lease, together with ail of the terms
and provisions hereof, shall not be deemed to have been prepared by either Landlord or Tenant,
but by both equally. This Lease shall not create any partnership, venture or other common
enterprise between Landlord and Tenant.
SECTION 23. LEGAL EXPENSES.
If any suit shall be brought because of a.ny claimed breach of any agreement or obligation
on the part of Tenant or Landlord hereunder and such a breach shall be established pursuant to
such suit, the prevailing party shall be entitled to recover all reasonable costs and expenses
incurred in connection with such suit, including reasonable attorneys' fees and court costs.
SECTION 24. BROKERS.
Tenant and Landlord each hereby represents and warrants to the other that each knows of
no claims for brokerage commissions or finder's fees in connectiori with the execution of this
Lease, and Landlord and Tenant each agree to indemnify and hold harmless the other party from
and against any and all losses, claims, demands, liabilities, damages, fines, costs and expenses
(including reasonable attorneys' fees and expenses) for commissions o~r other compensation or
charges claimed by a broker or agent for dealings with such party with respect to this Lease.
SECTION 25. VARIATIONS 1N PRONOUNS; CAPTIONS.
All of the terms and words used in this Lease, regardless of the number and gender in
which they are used, shall be deemed and construed to include any other number, singular or
plural, and any other gender, masculine, feminine or neuter, as the context or sense of this Lease
or any paragraph or clause herein may require, as if such words had been fully and properly
written in such number and gender. Any paragraph titles or captions contained in this Lease are
for convenience only and shall not be deemed to be part of the context of this Lease.
SECTION 26. BINDING EFFECT OF AGREEMENT.
Except as otherwise provided herein, this Lease and all of the covenants, conditions,
provisions and restrictions contained herein shall inure to the benefit of and be binding upon the
permitted successors and assigns of both the Landlord and Tenant.
SECTION 27. LANDLORD'S ACCESS.
Upon reasonable prior written notice delivered to Tenant in no event less than twenty-
four (24) hours in advance (except in the case of an emergency), Landlord may enter the
Demised Premises during Tenant's normal business hours for purposes of inspection, to show the
Demised Premises to prospective purchasers and lenders, or to perform maintenance and repair
obligations imposed upon Landlord by this Lease; provided, however that Landlord shall use
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commercially reasonable efforts not to interfere with Tenant's business in connection with any
such entry. '
SECTION 28. FORCE MAJEURE.
In the event either party hereto shall be delayed or hindered in or prevented from the
performance of any act required under this Lease by reason of adverse weather conditions,
strikes, lockouts, labor troubles, inability to procure materials, failure of power, riots, prohibitive
Laws, insurrection, war or other reason of a like nature which is not the fault of the party delayed
in performing such act, then performance of such act shall be excused for the period of the delay,
and the period for the performance of any such act shall be extended for a period equivalent to
the period of such delay. The provisions of this Section shall not (a) operate to excuse Tenant
from prompt payment of any Rent; or (b) be applicable to delays resulting from the inability of a
party to obtain fmancing or to proceed with its obligations under this Lease because of a lack of
funds.
SECTION 29. ESTOPPEL CERTIFICATE.
Each party agrees, within ten (10) days after written request by the other, to execute,
acknowledge and deliver to and in favor of any proposed lender, purchaser of the Demised
Premises, or permitted assignee or sublessee, an estoppel certificate, in a form reasonably
satisfactory to such proposed lender, purchaser or permitted assignee or sublessee, stating among
other things: (i) whether this Lease is in full force and effect; (ii) whether this Lease has been
modified or amended and, if so, identifying and describing any such modification or amendment;
(iii) the date through which Rent has been paid; and (iv) whether the party giving such certificate
knows of any default on the part of the other party or has any claim against the other party and, if
so, specifying the nature of such default or claim.
SECTION 30. END OF TERM.
Tenant shall, upon the expiration of the Term or any earlier termination of this Lease in
accordance herewith, surrender to Landlord the Demised Premises and all alterations,
improvements and other additions which may be made or installed by either party to, in, upon or
about the Demised Premises, other than Tenant's Property which shall remain the property of
Tenant. In connection therewith, Tenant, at its expense, shall repair any damage occasioned by
the removal of Tenant's Property and shall leave the Demised Premises in a neat and clean
condition and free of debris, normal wear and tear and damage from casualty and condemnation
excepted.
SECTION 31. CONSENT.
Wherever in this Lease Landlord or Tenant is required to give its consent or approval,
such consent ar approval shall not be unreasonably withheld, conditioned or delayed. Except as
otherwise provided in this Lease, if no written response to a request for a consent or approval is
provided within ten (10) days from the receipt of such request, then such consent or approval
shall be presumed to have been given.
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SECTION 32. LIENS.
Neither Landlord nor Tenant shall permit to be created nor to remain undischarged any
lien, encumbrance or charge arising out of any work or work claim of any contractor, mechanic
or laborer of Landlord or Tenant or material supplied by a materialman to Landlord or Tenant
which might be, or become, a lien, encumbrance or charge upon the Demised Premises. If any
lien or notice of lien on account of an alleged debt of Landlord or Tenant or any notice of
contract by a party engaged by Landlord or Tenant or Landlord's or Tenant's contractor to work
in the Demised Premises shall be filed against the Demised Premises, the responsible party shall,
within thirty (30) days after notice of the filing thereof, cause the same to be discharged of record
by payment, deposit or bond. In addition, except to the extent otherwise specifically allowed
hereunder, Landlord shall not permit to be created nor to remain undischarged any other lien,
encumbrance or charge on the Demised Premises which could reasonably interfere with Tenant's
operation of the Business at the Demised Premises.
SECTION 33. COLJNTERPARTS.
This Lease may be executed in one or more counterparts, including signatures by
facsimile, each of which shall be deemed an original, but all of which together will constitute one
and the same instrument.
SECTION 34. ENTIRE AGREEMENT.
This Lease constitutes the entire agreement between Landlord and Tenant regarding the
subject matter hereof and supersedes all prior agreements with respect to such matters.
SECTION 35. AUTHORITY.
Landlord and Tenant hereby represent and warrant that each has the power and authority
to enter into this Lease. Each of the persons executing this Lease on behalf of Landlord and
Tenant hereby represents and warrants that he/she has been duly authorized to execute this Lease
for and on behalf of Landlord and Tenant.
above.
IN WITNESS WHEREOF, this Lease has been executed as of the date first written
LANDLORD:
TRAJEN FLIGHT SUPPORT, L.P., a Delaware
limited partnership "
By: TRAJEN FBO LLC, its general partner
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Name: ~2i .~-~~ ~ ~`~~ aS t-t ~,~'~
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Title: ~ c~~ t~,At ~r`~ ~c ~ ~ ~'=~~~' -
TENANT:
NORTH AMERICAN JET MAINTENANCB - ASPEN,
L.L.C., a Colorado limjyted liability company
By:
D,~1jlo~~ Manager
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EXHIBIT A
Site Plan of Demised Premises
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