Exhibit 10.1


 


Execution version


 


TIME
SHARING AGREEMENT


 


This Time Sharing Agreement
(this “Agreement”) is dated this 4th day of February 2009, by and between
Sextant Holdings, LLC, a Massachusetts limited liability company (the “Company”)
and The First Marblehead Corporation, a Delaware corporation (“Lessee”).


 


RECITALS


 


WHEREAS,
Company operates and rightfully possesses the aircraft identified in Section 15
of this Agreement (the “Aircraft”); and


 


WHEREAS,
Lessee desires to lease the Aircraft from Company from time to time on a
non-exclusive time-sharing basis as defined in Sections 91.501(b)(6), 91.501(c)(1) and
91.501(d) of the Federal Aviation Regulations  (“FARs”); and


 


WHEREAS,
this Agreement is intended to be a time sharing agreement as defined in Section 91.501(c)(1) of
the FAR.


 


NOW,
THEREFORE, in consideration of the foregoing, and the other promises contained
herein, and for other good and valuable consideration, the parties, intending
to be legally bound hereby, agree as follows:


 


1.             Non-Exclusive Lease; Term of
Lease.  Company agrees to lease the Aircraft to
Lessee on a non-exclusive basis from time to time as mutually agreed between
the parties pursuant to the provisions of FAR 91.501(b)(6), 91.501(c)(1) and
91.501(d) and to provide a fully qualified flight crew for all operations
conducted under this Agreement.   This
Agreement shall be effective on the date set forth above and shall remain in
effect until terminated by either party upon ten (10) days prior written
notice to the other.


 


2.             Lease Fee.  Lessee shall pay to Company for each flight conducted under this
Agreement a lease fee (“Lease Fee”) not to exceed the actual expenses of each
specific flight as authorized by FAR Part 91.501(d).  Such actual expenses shall include and are
limited to:


 


(a)           Fuel, oil, lubricants, and other additives;


(b)           Travel expenses of the crew, including food,
lodging and ground transportation;


(c)           Hangar and tie-down costs away from the
Aircraft’s base of operations;


(d)           Insurance obtained for the specific flight;


(e)           Landing fees, airport taxes and similar assessments;


(f)            Customs, foreign permit, and similar fees
directly related to the flight;


(g)           In-flight food and beverages;


(h)           Passenger ground transportation;


(i)            Flight planning and weather contract services;
and


(j)            An additional charge equal to 100 percent of
the expenses listed in subparagraph 2(a) above.


 


Lessee
shall also be responsible to pay, together with any Lease Fee, applicable state
and federal taxes, fees and charges.


 


3.             Invoicing and Payment.  Company will pay all expenses related to the operation of the Aircraft
when incurred, and will provide an invoice to Lessee for the Lease Fee
determined in accordance with paragraph 2 above as promptly as practicable
following each flight.  Lessee shall pay
to Company the Lease Fee, together with applicable taxes, within fifteen (15)
days of receipt of the invoice.


 


4.             Flight Information.  Lessee will provide Company with requests for flight time and proposed
flight schedules as far in advance of any given flight as possible, and in any
case, at least two (2) business days in advance of Lessee’s planned
departure (unless Company agrees to a shorter notice in 


 

















 


a
particular case in its discretion). 
Requests for flight time shall be in a form, whether written or oral,
mutually convenient to, and agreed upon by the parties.  In addition to the proposed schedules and
flight times, Lessee shall provide at least the following information for each
proposed flight prior to scheduled departure as required by the Company or
Company’s flight crew:


 


(a)           proposed departure point;


(b)           destination;


(c)           date and time of flight;


(d)           the number, name, and relationship to the
Lessee of anticipated passengers;


(e)           the nature and extent of luggage and/or cargo
to be carried;


(f)            the date and time of return flight, if any;
and


(g)           any other information concerning the proposed
flight that may be pertinent or required by Company or Company’s flight crew.


 


5.             Flight Scheduling. 
Company shall have final authority over the scheduling of the Aircraft,
provided, however, that Company will use reasonable efforts to accommodate
Lessee’s requests and to avoid conflicts in scheduling.  It is understood that Company shall not be
obligated to retain or contract for additional flight crew or maintenance
personnel or equipment in order to accommodate Lessee’s scheduling requests.


 


6.             Operational Control. The Company shall have and exercise exclusive
operational control of the Aircraft during all phases of all flights performed
under this Agreement, including, without limitation, all flights during which
Lessee and/or Lessee’s guests are on-board the Aircraft.  Consistent with the Company’s operational
control responsibilities, Company shall be solely responsible to secure
maintenance, preventive maintenance and required or otherwise necessary
inspections on the Aircraft, and shall take such requirements into account in
scheduling the Aircraft. No period of maintenance, preventative maintenance or
inspection shall be delayed or postponed for the purpose of scheduling the
Aircraft, unless said maintenance or inspection can be safely conducted at a
later time in compliance with all applicable laws and regulations, and within
the sound discretion of the pilot in command. All flight operations under this
Agreement shall be conducted under Part 91 of the FAR.


 


7.             Authority of Pilot in Command and
Flight Crew.   For each flight conducted under this
Agreement, the Aircraft will be under the command of a qualified flight crew.
The pilot in command shall have final and complete authority to cancel any
flight for any reason or condition that in his or her judgment would compromise
the safety of the flight.  Lessee
specifically agrees that the flight crew, in its sole discretion, may terminate
any flight, refuse to commence any flight, or take other action which in the
considered judgment of the pilot in command is necessitated by considerations
of safety.  No such action of the pilot
in command shall create or support any liability for loss, injury, damage or
delay to Lessee or any other person.


 


8.             Damages.   Company
shall not be liable to Lessee or any other person for loss, injury, damage or
delay occasioned by the delay or failure by Company to furnish the Aircraft and
crew pursuant to this Agreement for any reason. 
Additionally, Lessee waives any and all claims, rights and remedies
against Company arising out of this Agreement (whether express or implied, or
arising by operation or law or in equity) for any special, punitive, exemplary,
indirect, incidental or consequential damages.


 


9.             Lessee’s Covenants,
Representations and Warranties.   Lessee covenants, represents and warrants to
the Company that during the term of this Agreement:


 


(a)           Lessee will use the Aircraft for and on
account of Lessee’s own business use only, and will not use the Aircraft for
the purpose of providing transportation of passengers or cargo for compensation
or hire or in violation of applicable FARs or any agreements entered into by
the Company relating to the Aircraft;


 


2

















 


(b)           Lessee will refrain from incurring any
mechanics or other lien in connection with inspection, preventative
maintenance, maintenance or storage of the Aircraft, whether permissible or
impermissible under this Agreement, nor shall there be any attempt by Lessee to
convey, mortgage, assign, lease or any way alienate the Aircraft or create any
kind of lien or security interest involving the Aircraft or do anything or take
any action that might mature into such a lien; and


 


(c)           Lessee will, and will cause any passengers in
Lessee’s party to, abide by and conform to all such laws, governmental and
airport orders, rules and regulations, as shall from time to time be in
effect relating in any way to the use of the Aircraft by a timesharing lessee.


 


10.           Risk of Loss. The Company assumes and shall bear the entire
risk of loss, theft, confiscation, damage to, or destruction of the Aircraft
from any cause whatsoever, except to the extent attributable to the gross
negligence or willful misconduct of Lessee or Lessee’s guests on the Aircraft.


 


11.           Insurance.   The Company shall maintain and have in force and effect with respect to
the Aircraft when used pursuant to this Agreement insurance coverage of such
type and amount not less than that insurance coverage customarily maintained
with respect to the Aircraft when used by the Company.  Company shall cause Lessee to be added as an
additional insured to its aviation liability coverage.


 


12.           Home Base.  For purposes of this Agreement, the permanent base of operation of the
Aircraft shall be Laurence G Hanscom Field Airport  (KBED), Bedford, Suffolk County,
Massachusetts.


 


13.           Successors and Assigns.  Neither this Agreement nor any party’s interest herein shall be
assignable to any other party whatsoever. 
This Agreement shall inure to the benefit of and be binding upon the
parties hereto, and their respective heirs, representatives, successors and
permitted assigns.


 


14.           Governing Law.  This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of Massachusetts.


 


15.           The Aircraft.  The
following aircraft shall constitute the “Aircraft” for purposes of this
Agreement, and the use thereof shall be subject to the terms hereof.


 


	
  Type of Aircraft

  	
   

  	
  Manufacturer’s Serial Number

  	
   

  	
  U.S. Registration No.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Gulfstream
  GIV-X (G450)

  	
   

  	
  4035

  	
   

  	
  N119AD

  



 


16.           Subordination.   This Agreement is subject and subordinate to the rights and interests
of any person or entity providing financing in respect of the Aircraft, whether
pursuant to a loan, lease or other financing arrangement, and to the terms of
any documents evidencing the same. This Agreement is subject and subordinate to
a certain Aircraft Security Agreement dated April 23, 2008 between VFS
Financing, Inc. (the “Bank”) and the Company (the “Security Agreement”),
and the rights and interests of the Bank thereunder and in and to the Aircraft
(including, without limitation, the Bank’s right to repossess the Aircraft
pursuant to the Security Agreement). 
Notwithstanding anything to the contrary contained herein, upon the
occurrence and during the continuance of an Event of Default (as defined in the Security Agreement), this Agreement
shall terminate immediately at the option of the Bank, upon written notice to
Lessee and Bank may exercise its
rights and remedies in accordance with the terms and conditions of the Security
Agreement including, without limitation, its right to terminate this Agreement
and take possession of the Aircraft.  The
Bank shall be an intended third party beneficiary of this provision with the
right to enforce the same in its own name.


 


17.           Notices and Communications. All communications, requests and notices
required or permitted by this Agreement shall be in writing and shall be deemed
to have been duly given or made when delivered personally or transmitted
electronically by facsimile, receipt acknowledged, or in the case of documented
overnight delivery service or registered or certified mail, return receipt
requested, delivery charge or postage prepaid, on the date shown on the receipt
therefor, in each case at the address set forth below (or to such other address
as either party shall from time to time designate to the other party):


 


3

















 


If to Company:


 


Sextant
Holdings, LLC


800
Boylston Street


Suite 1380


Boston,
Massachusetts 02199


Attention:  Seth Gelber, Chief Financial Officer


Telephone:
(617) 535-0000


Telecopier:  (617) 535-0022


 


If to Lessee:


 


The
First Marblehead Corporation


800
Boylston Street, 34th Floor


Boston,
Massachusetts 02199


Attention:  Greg Woods, Managing Director


Telephone:
(617) 638-2176


Telecopier:  (617) 638-2161


 


18.           Severability.  If any provision of this Agreement is held to be illegal, invalid or
unenforceable, the legality, validity and enforceability of the other
provisions of this Agreement shall not be affected or impaired.


 


19.           Counterparts.  This Agreement may be executed in any number of counterparts and/or via
facsimile or other electronic means, each of which shall be deemed an original,
and all of which shall constitute one and the same Agreement.


 


20.           Entire Agreement.  This Agreement constitutes the entire understanding among the parties
with respect to its subject matter, and there are no representations, warranties,
rights, obligations, liabilities, conditions, covenants or agreements among the
parties relating thereto other than as set forth herein.


 


21.           Amendment and Waiver.  This
Agreement may be amended only by a writing duly executed by the parties
hereto.  No delay or omission in the
exercise or enforcement of any right or remedy hereunder by either party shall
be construed as a waiver of such right or remedy unless in the form of a
writing signed by the party intended to be bound.


 


22.           TRUTH IN LEASING STATEMENT PURSUANT TO 14 CFR
PART 91.23


 


THE
AIRCRAFT, A GULFSTREAM MODEL GIV-X (G450) AIRCRAFT BEARING MANUFACTURER’S
SERIAL NUMBER 4035 AND U.S REGISTRATION MARK N119AD HAS BEEN MAINTAINED AND
INSPECTED UNDER FAR PART 91.409(f)(3) DURING THE 12 MONTH PERIOD PRECEDING
THE DATE OF THIS LEASE.


 


SEXTANT
HOLDINGS, LLC, A MASSACHUSETTS LIMITED LIABILITY COMPANY, CERTIFIES THAT THE
AIRCRAFT IS IN COMPLIANCE WITH ALL APPLICABLE MAINTENANCE AND INSPECTION
REQUIREMENTS FOR OPERATIONS TO BE CONDUCTED UNDER THIS LEASE.  THE AIRCRAFT WILL BE MAINTAINED AND INSPECTED
UNDER FAR PART 91.409(f)(3) FOR OPERATIONS TO BE CONDUCTED UNDER THIS
LEASE.


 


4

















 


SEXTANT
HOLDINGS, LLC CERTIFIES AND ACKNOWLEDGES THAT WHENEVER THE AIRCRAFT IS OPERATED
UNDER THIS AGREEMENT, SEXTANT HOLDINGS, LLC SHALL BE KNOWN AS, CONSIDERED AND
SHALL IN FACT BE RESPONSIBLE FOR OPERATIONAL CONTROL OF THE AIRCRAFT IDENTIFIED
AND TO BE OPERATED UNDER THIS LEASE. 
EACH PARTY CERTIFIES THAT IT UNDERSTANDS ITS RESPECTIVE
RESPONSIBILITIES, IF ANY, FOR COMPLIANCE WITH APPLICABLE FEDERAL AVIATION
REGULATIONS.  I, THE UNDERSIGNED, SETH
GELBER, AS CHIEF FINANCIAL OFFICER OF SEXTANT HOLDINGS, LLC, CERTIFY THAT IT IS
RESPONSIBLE FOR OPERATIONAL CONTROL OF THE AIRCRAFT FOR OPERATIONS TO BE
CONDUCTED UNDER THIS LEASE AND THAT IT UNDERSTANDS ITS RESPONSIBILITIES FOR
COMPLIANCE WITH APPLICABLE FEDERAL AVIATION REGULATIONS.


 


EACH
PARTY UNDERSTANDS THAT AN EXPLANATION OF FACTORS BEARING ON OPERATIONAL CONTROL
AND PERTINENT FEDERAL AVIATION REGULATIONS CAN BE OBTAINED FROM THE NEAREST FAA
FLIGHT STANDARDS DISTRICT OFFICE.


 


THE
ADDRESS OF SEXTANT HOLDINGS, LLC IS 800
BOYLSTON STREET, SUITE 1380, BOSTON, MASSACHUSETTS 02199.


 


[Remainder of page intentionally blank]


 


5

















 


IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.


 


 


	
   

  	
  SEXTANT
  HOLDINGS, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Seth Gelber

  
	
   

  	
   

  	
  Seth Gelber

  
	
   

  	
   

  	
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE
  FIRST MARBLEHEAD CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/
  William R. Berkley

  
	
   

  	
   

  	
  William R. Berkley

  
	
   

  	
   

  	
  Lead Director

  



 


6

















 


INSTRUCTIONS FOR COMPLIANCE WITH “TRUTH IN LEASING” REQUIREMENTS UNDER


FAR § 91.23


 


Within 24 hours after execution of this Time
Sharing Agreement:


 


mail a copy of the executed document to the following address via
certified mail, return receipt requested:


 


Federal Aviation Administration


Aircraft Registration Branch


ATTN:  Technical Section


P.O. Box 25724


Oklahoma City, Oklahoma 73125


 


At least 48 hours prior to the first flight to be
conducted under this Agreement:


 


deliver a completed FSDO Notification Letter (sample form attached)
containing the departure airport and proposed time of departure of said first
flight by facsimile to the Flight Standards District Office located nearest the
departure airport


 


Carry a copy of this Time Sharing Agreement in the
aircraft at all times.


 

















 


FSDO Notification Letter


 


	
  Date:

  	
   

  	
   

  	
   

  



 


Via
Facsimile


Fax:


 


Federal
Aviation Administration


 


 


 


 


	
  RE:

  	
   

  	
  FAR Section 91.23 FSDO Notification

  
	
   

  	
   

  	
  First Flight Under Time Sharing Agreement of Gulfstream GIV-X (G450),
  N119AD, s/n 4035

  



 


To
whom it may concern:


 


Pursuant
to the requirements of Federal Aviation regulation Section 91.23(c)(3),
please accept this letter as notification that the first flight of the aircraft
under the above-referenced agreement will depart from
                                          
Airport on the            day
of                           ,
2008, at approximately
           (am/pm) local
time.


 


 


	
   

  	
  Sincerely,

  
	
   

  	
   

  
	
   

  	
  Sextant
  Holdings, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title: