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agreement_1.md
EX-10.23 2 d272839dex1023.htm AIRCRAFT LEASE AGREEMENT Aircraft Lease Agreement bazadebezolkohpepadr="928393551" **Exhibit 10.23** AIRCRAFT LEASE AGREEMENT THIS AIRCRAFT LEASE AGREEMENT (“**Agreement**”) is entered into as of the 16th day of November, 2011 (“**Effective Date**”), by and between Yet Again Inc., a corporation organized and existing under the laws of Delaware (“**Lessor**”) and Clear Channel Broadcasting, Inc., a corporation organized and existing under the laws of Nevada (“**Lessee**”). WITNESSETH: WHEREAS, Lessor is the rightful owner of the Aircraft as more specifically described below; WHEREAS, Lessee desires to lease such aircraft from Lessor, and Lessor is willing to lease such aircraft to Lessee on the terms and conditions contained herein. NOW, THEREFORE, in consideration of the mutual covenants herein set forth, the parties agree as follows: 1. Dry Lease of Aircraft. Lessor hereby leases to Lessee, and Lessee leases from Lessor on an exclusive basis, subject to the terms and conditions of this Agreement, one (1) Dassault-Breguet Mystere Falcon 900 aircraft which consists of an airframe bearing Manufacturer’s Serial No. 27 and FAA registration number N5VJ, together with its three (3) installed Garrett TFE-731 series engines bearing manufacturer’s serial numbers P-97154, P-97152 and P-97318, its installed avionics and parts and all original and complete logbooks, documents and records related thereto (collectively referred as the “**Aircraft**”).
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2. Term. The term of this Agreement shall commence on the Delivery Date and shall continue for a period of seventy-two (72) months therefrom (“**Term**”) except as may be terminated in accordance with Section 10. 3. Rental; Taxes. (a) Lessee shall pay to Lessor a one-time rent payment in the amount of Three Million US Dollars (US$3,000,000) (“**Rent**”) on the Delivery Date. In the event the Lease is terminated by either party for any reason prior to the expiration of the Term, Lessor shall refund to Lessee pre-paid Rent on a pro-rated basis based on the actual number of calendar days remaining in the Term from and after the effective date of termination. Rent, which does not include the taxes or fees described in Section 3(b), below, shall be paid by Lessee to Lessor in immediately available U.S. funds to an account to be specified by Lessor. (b) In addition to the Rent, Lessee shall timely pay the amount of any sales, use, retailer, withholding, VAT, duties, fees or other taxes or fees which may be assessed or levied by any taxing jurisdiction (whether foreign or domestic) directly as a result of the leasing or operation of the Aircraft by Lessee or the payment of any Rent hereunder by Lessee (“**Tax**” or “**Taxes**”). Lessor shall be responsible for any and all Taxes related to the operation or ownership of the Aircraft prior to the Delivery Date. Lessee shall be responsible for the timely payment of any Taxes levied by any taxing jurisdiction solely due to Lessee’s operation of the Aircraft outside the State of New Jersey during the Term and that Lessor would not have otherwise been subject to
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absent Lessee’s operation of the Aircraft. Notwithstanding anything to the contrary herein, in no event shall either Lessee or Lessor be responsible to the other for any Taxes based on the income of the other party nor shall Lessee be responsible for (1) any governmental fines or penalties which are imposed directly as a result of the willful misconduct or negligence of Lessor, or (2) any fines or penalties which arose or arise prior to or following the Term, respectively. Lessee shall have the right to contest in good faith by appropriate proceedings any Taxes for which it is liable and shall not be obligated to pay such Taxes pending the final outcome of such contest, provided such contest and non-payment is not reasonably likely to result in a forfeiture of the Aircraft. The obligations of this Section 3(b) shall survive the expiration or other termination of this Agreement. In the event the Lease is terminated by either party for any reason prior to the expiration of the Term, Lessor shall refund to Lessee such portion of the Taxes paid by Lessee as relate to the portion of the Rent that is refunded. 4. Delivery; Condition of Aircraft. (a) Lessor shall deliver the Aircraft to Lessee at Teterboro Airport (TEB) in Teterboro, New Jersey on a date that is mutually agreeable to the parties (“**Delivery Date**”). (b) Lessor shall deliver the Aircraft to Lessee on the Delivery Date in the following condition: (i) current on and in compliance with manufacturer’s recommended inspection and maintenance program, with all calendar and hourly inspections that must be completed on or before the Delivery Date completed without deferment or extension; (ii) operational and in an airworthy condition with a current and valid FAA Standard Airworthiness Certificate and registered on the FAA Civil Aircraft Registry;
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(iii) with all systems functioning normally in accordance with manufacturer’s specifications and in compliance with all applicable FAA Airworthiness Directives and all applicable manufacturer mandatory service bulletins with compliance dates on or prior to the Delivery Date; (iv) the engines shall be enrolled on Honeywell MSP Gold service program, the Rockwell Collins avionics shall be enrolled on the Rockwell Collins Avionics service program and the Honeywell avionics shall be enrolled on Honeywell’s HAPP service program (collectively, “**MSP**”), which shall be fully paid through the Delivery Date; and (v) all Aircraft logbooks shall be legible, complete, continuous in the English language and shall comply in all respects with applicable FARs. (c) Upon delivery of the Aircraft in accordance with the terms of this Agreement, Lessee will execute and deliver the Delivery and Acceptance Certificate in the form attached hereto as Exhibit A. 5. Operations. (a) During the Term, Lessee shall be solely and exclusively responsible for the use, operation and control of the Aircraft and Lessee shall use and operate the Aircraft in a careful manner and in conformity with the Federal Aviation Regulations (“**FARs**”), and applicable laws of any   2
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government authority having jurisdiction over the operation of the Aircraft (“**Applicable Law**”), and in accordance with the Aircraft operating manual. Lessee shall not fly, operate, use or locate the Aircraft in, to or over any such country or area (temporarily or otherwise) (i) which is excluded from the required insurance coverages, or would otherwise cause Lessee to be in breach of the insurance requirements or other provisions of this Agreement; or (ii) in which there are recognized or threatened hostilities. (b) All operations of the Aircraft during the Term shall be under Lessee’s operational control (as defined in § 1.1 of the FARs) and Lessee shall be solely responsible for its possession and use; and (ii) Lessee shall not sell, transfer, assign, encumber, sublet or part with possession of the Aircraft or any of its rights under the Agreement except for the performance of maintenance on the Aircraft, or unless the parties otherwise agree in writing. (d) Lessee shall bear all costs of operating the Aircraft, except the cost of certain Maintenance which shall be shared by the parties in accordance with Section 6 below. (e) Lessee shall not permit any liens to be placed on the Aircraft, other than those liens (i) in favor of or created by or through Lessor or Lessor’s lender, if any; or (ii) Permitted Liens (as defined in Section 12 (b) below). 6. Maintenance.
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6. Maintenance. (a) Lessee shall, during the Term, at its own cost and expense, maintain, inspect, service, repair, overhaul and test or cause the Aircraft to be maintained, inspected, serviced, repaired, overhauled and tested so as to keep the Aircraft in good operating condition as delivered to Lessee on the Delivery Date, ordinary wear and tear excepted, and in compliance with all Applicable Law, including applicable provisions of the FARs and the manufacturer’s recommended inspection and maintenance program (“**Maintenance**”). For the avoidance of doubt, the Maintenance costs and expenses to be borne by Lessee shall include, but not be limited to, the cost of all parts and consumables used in the maintenance process that are not covered under or specifically addressed in Section 6(c). (b) Lessee shall perform or cause to be performed all Maintenance by persons and agencies approved by the FAA and the applicable manufacturer. Lessee shall ensure that the Maintenance is conducted in a manner that does not modify or impair any existing warranties or service maintenance plans and agreements covering the Aircraft or any part thereof. All logbooks, records and documents (including any computerized maintenance records) pertaining to the Aircraft and its engines and their maintenance during the Term shall be maintained in English and in accordance with the FARs, and returned to Lessor upon termination of this Agreement with all entries duly completed and properly signed off.
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(c) Lessee shall pay to Lessor the hourly rate specified in the Honeywell MSP Gold program agreements covering the engines and APU as and when due under such agreements and provide such information and documentation required thereunder. Lessor shall timely remit such payments and provide such documentation and information to Honeywell in order to keep the engines and APU current on the program. Lessee shall pay to Lessor the hourly rate specified in the Rockwell Collins Avionics Program and the Honeywell HAPP Program agreements covering the respective avionics as and when due under such agreements and provide such information and documentation   3
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required thereunder. Lessor shall timely remit such payments and provide such documentation and information to Honeywell in order to keep the avionics current on such programs and to ensure coverage under the agreements. Upon execution of this Agreement, Lessor shall provide to Lessee complete and current copies of such agreements and shall provide to Lessee any and all amendments, extensions, notices or other documentation relating to such programs and the engines, APU and or avionics. Lessor shall not reduce the coverage under such programs without the prior written consent of Lessee. (d) Lessee shall be entitled during the Term to acquire and install at its own cost and expense, any additional accessories, devices or equipment as it desires (the “**Additions**”) but only so long as such Additions (i) are approved in writing by Lessor; (ii) are ancillary to the Aircraft; (iii) are not required to render the Aircraft complete for its intended use by Lessee; (iv) will not impair the originally intended function or use of the Aircraft or diminish the value of the same; and (v) can be readily removed without causing material damage to the Aircraft. (e) Unless otherwise agreed to in advance by the parties, Lessor shall bear the full cost of any discretionary Aircraft upgrades, capital improvements or major refurbishment made during the Term. In the event the Lease is terminated by either party for any reason prior to the expiration of the Term, Lessor shall refund to Lessee the amount paid by Lessee for upgrades, improvements and refurbishment of the Aircraft paid for by Lessee under this Section 6(e) on a pro-rated basis based on the actual number of calendar days remaining in the Term from and after the effective date of termination. 7. Insurance.
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7. Insurance. (a) During the Term, Lessor shall cause to be provided and maintained in full force and effect, at Lessee’s sole cost and expense, a policy or policies of insurance providing the coverage described in this Section 7 covering all operations of the Aircraft (“**Insurance Policies**”). (i) Aircraft liability insurance covering all operations of the Aircraft, which coverage shall: (A) include a territory provision sufficient to cover all Aircraft operations permitted by this Agreement, with limits of not less than Two Hundred Million US Dollars (US $200,000,000) per occurrence on a combined single limit basis, covering claims for death, bodily injury and property damage, (B) list Lessor and Lessee as named insureds and list as additional named insureds each of Lessee’s and Lessor’s affiliates and their respective directors, officers, managers, employees and agents and Gama Aviation, Inc.; (C) be endorsed so that it is primary and non-contributing to any other insurance that is available to any of the insureds. (ii) All-risk ground and flight physical damage and hull war and allied perils insurance (“Hull Coverage”) on the Aircraft for the agreed value of Eighteen Million US Dollars (US$18,000,000) (“Casualty Value”). Such Hull Coverage shall name Lessor and Lessee as loss payees as their interests shall appear, shall specify any deductibles applicable to each and every loss.   4
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(b) The Insurance Policies maintained under this Agreement shall: (i) Be placed with insurance companies that (A) are qualified to do business in the United States, (B) will submit to the jurisdiction of any competent state or federal court in the United States with regard to any dispute arising out of the policy of insurance or concerning the parties herein; (C) will respond to any claim or judgment against Lessee and Lessor in any competent court; and (D) are reasonably satisfactory to both Lessor and Lessee, such approval not to be unreasonably withheld, delayed or conditioned. (ii) Provide for not less than thirty (30) days (no less than ten (10) days in the case of any nonpayment of premium and such lesser period as is standard in the industry for war risk insurance) advance written notice to be received by each of the insured parties prior to any adverse material change, deletion or cancellation in the Insurance Policies, any of the coverages thereunder, or any required policy provisions set forth in this Section 7 that reduces coverage available; provided, however, that war risk and allied perils policy coverages may provide for not less than seven (7) days or such lesser period prior written notice as shall be customary in the aviation insurance industry for prior written notice of cancellation.
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(iii) The Insurance Policies shall contain an endorsement providing that coverages under such Insurance Policies shall not be voided by any act or negligence of any person, including another insured under the policies; provided that there is neither consent nor actual knowledge by the insured party that such action would void coverage under the policy and shall include a waiver of subrogation in favor of Lessee and its officers, directors, managers, employees and agents and Gama Aviation. Inc. All Insurance Policies shall provide for a severability of interest/cross liability endorsement, so as to ensure that the insurance shall operate in all respects as if a separate policy has been issued covering each party insured, although underwriters’ overall limit of liability will not increase. (c) Promptly following the execution of this Agreement and annually thereafter, Lessor shall provide Lessee with certificates of insurance and endorsements evidencing the effectiveness (and renewal, as applicable) of such Insurance Policies in compliance with the insurance requirements specified in this Section 7. 8. Limitation of Liability.
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8. Limitation of Liability. LESSOR UNDERSTANDS AND AGREES THAT THE INSURANCE POLICIES ARE LESSOR’S SOLE REMEDY AGAINST LESSEE FOR ANY AND ALL LOSS OR DAMAGE TO THE AIRCRAFT AND/OR INJURY OR DEATH OF ANY PASSENGER AND/OR FOR ANY AND ALL CLAIMS, DAMAGES, LOSSES, EXPENSES AND LIABILITIES INCLUDING, BUT NOT LIMITED TO, DIRECT OR INDIRECT LOSS OR DAMAGE TO THE AIRCRAFT, DIMINUTION IN VALUE OF THE AIRCRAFT, LOSS OF INCOME, REVENUES, PROFITS OR BUSINESS OPPORTUNITIES OR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT OR IN ANY WAY CONNECTED WITH THE AIRCRAFT UNDER THIS AGREEMENT, WHETHER ON THE GROUND OR IN THE AIR, AND THE OTHER TRANSACTIONS CONTEMPLATED HEREBY, UNLESS SUCH CLAIMS, DAMAGES, LOSSES, EXPENSES OR LIABILITIES   5
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ARE SOLELY THE RESULT OF LESSEE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR LESSOR’S FAILURE TO MAINTAIN THE INSURANCE POLICIES REQUIRED HEREUNDER. Lessor understands that Lessee and each of the other insureds have no liability for any event or occurrence not covered by the foregoing insurance, unless such event or occurrence is solely the result of the gross negligence or willful misconduct of Lessee or one of the other insureds or Lessor’s failure to maintain the insurance policies required hereunder. Lessor hereby waives any claim for damage, loss or expense arising out of the operation, use or maintenance of the Aircraft or of other services relating to the Aircraft hereunder and the covenants not to assert any claim against Lessee or its affiliates or their respective officers, directors, managers, employees and agents in respect thereof, unless such claim for damage, loss or expense is attributable to Lessee’s gross negligence or willful misconduct. Lessee shall not be limited in the manners set forth in this Section 8 for any damages, losses or expenses arising from Lessor’s failure to maintain the insurance required herein. This Section 8 shall survive any termination of this Agreement. 9. Risk of Loss; Loss or Damage.
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9. Risk of Loss; Loss or Damage. (a) Subject to Section 8, Lessee shall bear the risk of loss, damage or destruction of the Aircraft from the time of delivery until the Aircraft is returned to Lessor pursuant to this Agreement. Lessee shall provide written notice to Lessor of any material damage concurrently with its report of same to the applicable governmental authority, and if no such report is required, such written report shall be delivered to Lessor within thirty (30) calendar days of the occurrence of such damage. The required notice must be provided together with any damage reports provided to the FAA or any other governmental authority or the insurer, and any documents pertaining to the repair of such damage, including copies of work orders, and all invoices for related charges. (b) Except as hereafter provided, in the event of damage to the Aircraft during the Term which is not an “Event of Loss”, Lessee will, subject to Section 8 and prior written approval from Lessor, repair or cause to be repaired, any such damage at its expense, and the insurance proceeds shall be paid to the repair facility or to reimburse Lessee (to the extent Lessee paid such expenses) upon submission of an invoice issued by the repair facility. (c) Upon the occurrence of an “Event of Loss” of the Aircraft, Lessor shall be entitled to the proceeds of the Hull Coverage. Upon receipt of the full Casualty Value by Lessor, this Agreement shall terminate as set forth in Section 10. Lessor shall have no obligation to replace the Aircraft with any other aircraft and Lessee shall have no obligation to make future payments of Rent to Lessor hereunder.
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(d) An “**Event of Loss**” with respect to the Aircraft shall mean any of the following events with respect to such property (i) loss of the Aircraft due to destruction, damage beyond repair or rendition of such property permanently unfit for normal use; (ii) any damage to such property which results in an insurance settlement with respect to such property on the basis of a total loss or constructive total loss; or (iii) the condemnation, confiscation or seizure of, or requisition of title to or use of, such property by the act of any government (foreign or domestic) or of any state or local authority or any instrumentality or agency of the foregoing for a period in excess of sixty (60) consecutive days (“**Requisition of Use**”). The date of such Event of Loss shall be the date on which the sixty (60) consecutive day period ends in the case of Requisition of Use, the date of such destruction or damage or the date on which the Aircraft is declared a constructive total loss. An Event of Loss with respect to any engine or APU shall not, without loss of the airframe, be deemed an Event of Loss with respect to the Aircraft.   6
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10. Termination. This Agreement may be terminated: (i) immediately upon the mutual consent of all parties; (ii) by either party immediately upon the termination of Robert Pittman’s employment with Lessee for any reason; (iii) by the non-breaching party if an Event of Default has occurred and the breaching party has not cured within the applicable cure period (if any) provided for in Section 14 of this Agreement; (iv) automatically upon receipt by Lessor of the Casualty Value following an Event of Loss; or (v) either party following a determination by a mutually agreeable Dassault-authorized service facility that the Aircraft is damaged to the extent that it is improbable that it can be made operative within sixty (60) days. All amounts payable by one party to another in the event of a termination of this Agreement prior to the expiration of the Term shall be paid to the other party within thirty (30) days of the date of termination, and this obligation shall survive the termination of this Agreement. 11. Representations, Warranties and Agreements. Lessee and Lessor each represent, warrant and agree as follows: (a) Due Organization. It is duly organized and validly existing under the laws of the jurisdiction of its organization and will remain duly organized and existing in good standing and is duly qualified to do business wherever necessary to perform its obligations under this Agreement. (b) Due Authorization. This Agreement has been duly authorized by all necessary action on its part consistent with its form of organization, does not require the approval of, or giving notice to, any governmental authority.
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(c) Enforceability. This Agreement has been duly executed and delivered by its authorized representative and constitutes its legal, valid and binding obligation enforceable in accordance with its terms except as such enforceability may be limited by bankruptcy, insolvency or similar laws affecting creditors’ rights generally and subject to general principles of equity. 12. Title; No Liens; Quiet Enjoyment. (a) Title to the Aircraft shall remain vested in Lessor during the Term and the Aircraft shall be registered at the FAA in the name of Lessor. Lessee shall have no right, title or interest in or to the Aircraft except as expressly provided herein and shall take no action or fail to take any action reasonably requested by Lessor that would impair the continued registration of the Aircraft at the FAA in the name of Lessor. (b) Lessee shall ensure that no liens or encumbrances of any nature or description whatever (“**Liens**”) are created or placed against the Aircraft, (including the engines, parts and components and all associated rights and the related international interests) or this Agreement as a result of Lessee’s acts or omissions except (i) for inchoate materielmen’s, mechanic’s, workmen’s, repairmen’s, employee’s, or other like Liens arising in Lessee’s ordinary course of business for sums not yet due or delinquent or being contested in good faith with due diligence and by appropriate proceeding and (ii) liens relating to taxes (the payment of which is Lessee’s obligation) that are being contested in good faith by appropriate proceedings (“**Permitted Lien**”). This Section 12(b) shall survive any termination of this Agreement.   7
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(c) As long as Lessee pays Rent and other amounts payable hereunder and performs and complies with all of the other terms and conditions hereof, neither Lessor nor any person acting through or on behalf of Lessor or in its stead, nor any person with rights granted by Lessor will interfere with the peaceful and quiet use and enjoyment of the Aircraft by Lessee, which use and enjoyment shall be without hindrance. 13. Redelivery of the Aircraft (a) Upon termination of this Agreement by expiration of the Term or otherwise, Lessee shall deliver to Lessor (or its designated representative) custody and possession of the Aircraft and all Aircraft documentation at Teterboro Airport (TEB) in Teterboro, New Jersey or such other mutually agreed location as may be specified by Lessor (“Redelivery”). (b) Upon Redelivery, the Aircraft shall be in the following condition unless waived by Lessor: (i) current on and in compliance with manufacturer’s recommended inspection and maintenance program, with all calendar and hourly inspections that must be completed on or before the Redelivery date completed; (ii) operational and in an airworthy condition with a current and valid FAA Standard Airworthiness Certificate and registered on the FAA Civil Aircraft Registry; (iii) with all systems functioning normally in accordance with manufacturer’s specifications and in compliance with all applicable FAA Airworthiness Directives, and all applicable manufacturer mandatory service bulletins with compliance dates on or prior to the Redelivery date;
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(iv) Lessee shall have paid Lessor all amounts due for hours operated by Lessee during the Term for (A) the engines under the applicable Honeywell MSP Gold service program, (B) the Rockwell Collins avionics under the Rockwell Collins Avionics service program and (C) the Honeywell avionics under the Honeywell’s HAPP service program, and Lessee shall have provided to Lessor all documentation required under the applicable programs with respect to such use; (v) all Aircraft logbooks shall be legible, complete, continuous in the English language and shall comply in all respects with applicable FARs; and (vi) clear of all Liens to the extent created by or through Lessee. (c) Upon return of the Aircraft in accordance with the terms of this Agreement, Lessor will execute and deliver to Lessee the Redelivery Certificate in the form attached hereto as Exhibit B. (d) Notwithstanding anything in the Agreement to the contrary, in the event Lessor shall have failed to pay its portion of the Maintenance cost as required under Section 6(d), Lessee shall have no liability for the failure of the Aircraft to meet the condition required herein to the extent that such failure relates to the Maintenance for which Lessor was financially responsible.   8
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14. Events Of Default And Remedies. (a) Events of Default. The term “**Event of Default**” means: (i) non-payment by a party of any Rent and/or any other amount due pursuant to this Agreement within thirty (30) days after receipt of notice from the other party of failure to pay any or all of the same on the due date; (ii) failure by Lessee to maintain, use, or operate the Aircraft in compliance with Applicable Law; (iii) failure by Lessee to comply with all of the insurance coverages required under this Agreement; (iv) the creation by Lessee of any Lien other than a Permitted Lien; (v) failure to return the Aircraft to Lessor on the date and in the manner required by this Agreement; (vi) the commencement of any bankruptcy, insolvency, receivership or similar proceeding by or against Lessee or Lessor or any of its properties or business (unless, if involuntary, the proceeding is dismissed within sixty (60) days of the filing thereof) or the rejection of this Agreement; (vii) breach by a party of any other covenant, condition or agreement (other than those in subsections (i)-(vi) of this Section 14(a)) under this Agreement that continues for thirty (30) days after written notice by the non-defaulting party to the defaulting party (but such notice and cure period will not be required if Lessee operates the Aircraft when the insurance required hereunder is not in full force and effect or if such breach cannot be cured by practical means within such notice period).
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(b) Remedies. Upon the occurrence and during the continuation of an Event of Default, the non-breaching party may exercise any one or more of the following remedies (in its sole discretion): (i) terminate this Agreement; (ii) to the extent permitted by Applicable Law, enter the premises where the Aircraft is located and take immediate possession of and remove (or disable in place) the Aircraft by self-help, summary proceedings or otherwise without liability; (iii) apply any deposit or other cash collateral, or collect and apply any proceeds of insurance or otherwise, at any time to reduce any amounts due to Lessor; and (iv) demand and recover from the defaulting party the unpaid amount due. (c) Lessor’s Performance. Upon the occurrence and during the continuation of an Event of Default, Lessor shall have the right upon notice to Lessee, but shall not be obligated, to effect such performance and any reasonable and documented expenses incurred by Lessor in connection with effecting such performance shall be payable by Lessee promptly upon demand. Any such action shall not be a cure or waiver of any Default or Event of Default hereunder. 15. Notices All notices and other communications under this Agreement shall be in writing and shall be sent by personal delivery, telefax or nationally recognized courier for overnight delivery to the address set forth below (or to such other address as may be designated by a party in writing):   9
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| | | | | --- | --- | --- | | | | | | **If to Lessor:**   Yet Again Inc. |    | **If to Lessee**   Clear Channel Broadcasting, Inc. | | c/o TAG Associates, LLC 75 Rockefeller Plaza, 9th Floor New York, NY 10019-6999 Attn: Phil Krevitsky Fax: (212) 275-1510 |    | 200 E. Basse Road San Antonio, TX 78209 Attn: General Counsel Fax: (210) 832-3129 | Such notice or other communication shall be deemed to have been received in the case of personal delivery, upon actual delivery or the intended recipient’s refusal to accept delivery; in the case of nationally recognized courier, the next business day; and in the case of a telefax, on the date of transmission if sent during normal business hours of the receiving party with electronic confirmation of transmission and if sent after normal business hours of the recipient or on a date that is not a business day for the recipient it shall be deemed to have been received at the opening of business on the next such business day). Each party is required to notify the other party in the above manner of any change of address. Neither party may object to the method of notice for any notice actually received by such party. 16. Miscellaneous
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16. Miscellaneous (a) Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns. This Agreement may not be assigned by any party without the consent of the other party hereto, such consent not to be unreasonably withheld or delayed, except that Lessee may assign this Agreement to its parent, a majority owned and controlled subsidiary or a company under common ownership or control with Lessee, upon written notice to Lessor. (b) Severability. The provisions of this Agreement shall be deemed independent and severable and the invalidity, partial invalidity or unenforceability of any one provision or portion of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability and any prohibition or unenforceability in any particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. (c) Headings. The headings herein are inserted only for convenience and shall not affect the interpretation of this Agreement. (d) Entire Agreement. This Agreement constitutes the entire agreement, both written and oral, between the parties or their respective representatives with respect to the subject matter hereof and is not intended to confer upon any other person any rights or remedies hereunder not expressly granted thereto. This Agreement shall not be further amended or modified unless in writing duly signed by the parties hereto.
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(e) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE WITHIN SUCH STATE, EXCLUDING CONFLICT OF LAWS PRINCIPLES (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).   10
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(f) Counterparts. This Agreement may be executed in one or more counterparts each of which shall be deemed an original, all of which together shall constitute one and the same agreement. A facsimile or electronically transmitted copy of an original signature to this Agreement shall be considered the same and as effective as an executed original. (g) Failure or Delay in Performance. Neither Lessor nor Lessee shall be liable for any failure or default hereunder if such failure or default is due to Acts of God or the public enemy, civil war or insurrection or riots, strike or lockout or other labor dispute, act of the public enemy, act of terrorism, war (declared or undeclared), blockade, revolution, civil commotion, lightning, fire, storm, flood, earthquake, explosion, governmental restraint, embargo, sudden or unexpected aircraft mechanical failure, inability to obtain or delay in obtaining equipment or transport, inability to obtain or delay in obtaining governmental approvals, permits, licenses or allocations, serious accidents and any other cause whether of the kind specifically enumerated above or otherwise beyond the affected party’s reasonable control. (h) TRUTH IN LEASING STATEMENT UNDER SECTION 91.23 OF THE FARs: (i) LESSOR HEREBY CERTIFIES THAT THE AIRCRAFT HAS BEEN INSPECTED AND MAINTAINED WITHIN THE 12 MONTH PERIOD PRECEDING THE DATE OF THIS AGREEMENT IN ACCORDANCE WITH THE PROVISIONS OF FAR PART 91 AND ALL APPLICABLE REQUIREMENTS FOR THE MAINTENANCE AND INSPECTION THEREUNDER HAVE BEEN MET. (ii) OPERATOR AGREES, CERTIFIES AND KNOWINGLY ACKNOWLEDGES AS EVIDENCED BY ITS SIGNATURE BELOW THAT, OPERATOR WILL BE KNOWN AS, CONSIDERED, AND WILL IN FACT BE THE OPERATOR OF THE AIRCRAFT.
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CLEAR CHANNEL BROADCASTING, INC. By:                                                           Title:                                                        (c) THE PARTIES UNDERSTAND THAT AN EXPLANATION OF FACTORS AND PERTINENT FEDERAL AVIATION REGULATIONS BEARING ON OPERATIONAL CONTROL CAN BE OBTAINED FROM THE LOCAL FAA FLIGHT STANDARDS DISTRICT OFFICE. OPERATOR FURTHER CERTIFIES THAT IT WILL SEND A TRUE COPY OF THIS EXECUTED AGREEMENT TO AIRCRAFT REGISTRATION BRANCH, ATTN: TECHNICAL SECTION, P.O. BOX 25724, OKLAHOMA CITY, OKLAHOMA, 73125 WITHIN 24 HOURS OF ITS EXECUTION, AS PROVIDED BY FAR 91.23(c)(1). [*Signatures on following page*]   11
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above and verify that they have read the Agreement, understand its contents, and have full authority to bind and hereby do bind their respective parties.   | | | | | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | --- | | | | | | | | | | | | LESSOR: YET AGAIN INC. |   | |   | LESSEE: CLEAR CHANNEL BROADCASTING, INC. | | | | | | | | By:  |   | /s/ Robert W. Pittman |   | |   | By:  |   | /s/ Hamlet T. Newsom, Jr. | | Name:  |   | Robert W. Pittman |   | |   | Name:  |   | Hamlet T. Newsom, Jr. | | Title: |   | |   | |   | Title: |   | VP, Assistant Secretary | *Aircraft Lease Agreement Signature Page*
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**Exhibit A** **DELIVERY AND ACCEPTANCE CERTIFICATE** DATE:             , 20             PLACE:             ,              CLEAR CHANNEL BROADCASTING, INC. does hereby accept delivery of one (1) Dassault-Breguet Mystere Falcon 900 aircraft which consists of an airframe bearing FAA Registration Number N5VJ and Manufacturer’s Serial No. 27 together with its three (3) installed Garrett TFE-731 series engines bearing manufacturer’s serial numbers P-97154, P-97152 and P-97318, its installed avionics and parts and all logbooks, documents and records related thereto in accordance with the Aircraft Lease Agreement between Clear Channel Broadcasting, Inc., as Lessee, and Yet Again Inc., as Lessor, dated the             day of             2011.   | | | | | --- | --- | --- | | | | | | CLEAR CHANNEL BROADCASTING, INC. as Lessee | | | | | By:  |   |   | | | | | Name: |   | | | | | | Title: |   | | *Exhibit A – Delivery and Acceptance Certificate*
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**Exhibit B** **REDELIVERY CERTIFICATE** DATE:             , 20             PLACE:             ,              YET AGAIN INC. does hereby accept redelivery of one (1) Dassault-Breguet Mystere Falcon 900 aircraft which consists of an airframe bearing FAA Registration Number N5VJ and Manufacturer’s Serial No. 27 together with its three (3) installed Garrett TFE-731 series engines bearing manufacturer’s serial numbers P-97154, P-97152 and P-97318, its installed avionics and parts and all logbooks, documents and records related thereto in accordance with the Aircraft Lease Agreement between Clear Channel Broadcasting, Inc., as Lessee, and Yet Again Inc. as Lessor, dated the             day of             2011.   | | | | | --- | --- | --- | | | | | | YET AGAIN INC. as Lessor | | | | | By:  |   |   | | | | | Name: |   | | | | | | Title: |   | | *Exhibit B – Redelivery Certificate* ![](https://www.sec.gov/akam/13/pixel_37562a24?a=dD02NjkwMTI0NmM3MDE3NzA3MDExMDk4NjAzN2NmZDBiZjc3NzNmMzRkJmpzPW9mZg==)
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EX-10.1 2 dex101.htm AIRCRAFT DRY LEASE Aircraft Dry Lease **Exhibit 10.1** **AIRCRAFT DRY LEASE** This Lease of aircraft is made effective as of June 12, 2008, by and between BH Holdings LLC, with an address of 700 17th St., Suite 1750, Denver, CO 80202 (“**Lessor**”) and Intrepid Potash, Inc., with an address of 700 17th St., Suite 1700, Denver, CO 80202 (“**Lessee**”). **RECITALS** The parties recite that: WHEREAS, Lessor owns and is the registered owner of the airframe together with the Engines, APU(s) and all appliances, parts, instruments, avionics and appurtenances thereto, including any replacement part(s) or engine(s) which may be installed on the Aircraft from time to time, and all logs, manuals and other records relating to such Aircraft (collectively, the “**Aircraft**”):   | | | | | --- | --- | --- | | | | | | FAA Registration Number: |    | N518CL | | Aircraft Serial Number: |    | 5180 | | Aircraft Manufacturer: |    | Canadair, Ltd. | | Aircraft Model: |    | CL-600-2B16 | | Aircraft Year: |    | 1995 | | Engine Serial Numbers: |    | 807282 and 807284 | | Engine Manufacturer: |    | GE | | Engine Model: |    | CF-34-1A |
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WHEREAS, Lessee desires to lease the Aircraft under such terms and conditions as are mutually satisfactory to the parties.
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The parties agree as follows: **SECTION ONE** **LEASE OF AIRCRAFT** For Four Thousand Four Hundred Twenty Nine Dollars ($4,429) per flight hour, Lessor agrees to lease the Aircraft to Lessee, Lessee acknowledges that Lessor has also entered into a management agreement with Airmax, LLC, a limited liability company organized under the laws of the State of Colorado with an address at 8551 Aviator Lane, Centennial, CO 80112, pursuant to which Airmax, LLC shall manage the Aircraft according to 14 C.F.R. Part 91 and Airmax, LLC’s policies. It shall be conclusively presumed between the parties that Lessee has fully inspected the Aircraft having knowledge that it is in good condition and repair and that Lessee is satisfied with and has accepted the Aircraft in such condition and repair. **SECTION TWO** **TERM** This Lease will commence on the date first above written and continue for one year after said date. Thereafter, this Lease will be automatically renewed on a month to month basis, unless sooner terminated by either party as hereinafter provided. Either party may at any time terminate this Lease upon thirty (30) days written notice to the other party, delivered personally or by certified mail, return receipt requested, at the address set forth above. **SECTION THREE** **PRIVATE AND COMMERCIAL OPERATION**
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**SECTION THREE** **PRIVATE AND COMMERCIAL OPERATION** Neither Lessee nor Lessor will make the Aircraft available for hire within the meaning of the Federal Aviation Regulations. The Aircraft must be operated in accordance with 14 C.F.R. Part 91 at all times, Lessor and Lessee hereby agree that Lessee shall have complete and uncompromised operational control of the Aircraft under 14 C.R.R. Part 91 at all times the Aircraft is operated by Lessee under this Lease. Lessee represents and warrants that it is leasing the Aircraft for either: (a) the personal transportation of Lessee and Lessee’s guests where no charge, assessment or fee is made for such transportation; or   2
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(b) the transportation of Lessee’s officers, employees, guests and property where such transportation is within the scope of or incidental to Lessee’s business. Lessee represents and warrants that it is not leasing the Aircraft for the purpose of charter or lease to third parties which could be considered commercial air transportation or air transportation for hire as set out in the Federal Aviation Regulations. **SECTION FOUR** **INSURANCE** At all times during the term of this Lease, Lessor will also cause to be carried and maintained third party aircraft liability insurance, passenger legal liability insurance, property damage liability insurance, and medical expense insurance in the amounts set forth below:   | | | | | | --- | --- | --- | --- | | | | | | | Combined Liability Coverage for Bodily Injury and Property Damage Including Passengers - |    | | | | Each Occurrence |    | $ | 250,000,000 | | | | | | | Medical Expense Coverage - |    | | | | Each Person |    | $ | 50,000 | | | | | | Lessee’s proportionate share of the cost of the above insurance is included in Lessee’s lease payments to Lessor. Lessee will also bear the cost of paying any deductible amount on any policy of insurance in the event of a claim or loss.
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Any policies of insurance carried in accordance with this Lease: (i) shall name Lessee as an additional insured; and (ii) shall contain a waiver by the underwriter thereof of any right of subrogation against Lessor; and (iii) shall provide that in respect of the interests of Lessor, such policies of insurance shall not be invalidated by any action or inaction of Lessee or any other person and shall insure Lessor (subject to the limits of liability and war risk exclusion set forth in such policies) regardless of any breach or any   3
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violation of any warranty, declarations or conditions contained in such policies by Lessee or any other person; and (iv) shall provide that if the insurers cancel insurance for any reason whatsoever, or the same is allowed to lapse for non-payment of premium, or if there is any material change in policy terms and conditions, such a cancellation, lapse or change shall not be effective as to Lessee. Each liability policy shall be primary without right of contribution from any other insurance which is carried by Lessee or Lessor and shall expressly provide that all of the provisions thereof, except the limits of liability, shall operate in the same manner as if there were a separate policy covering each insured. Lessor will submit this Lease for approval to the insurance carrier for each policy of insurance on the Aircraft. Lessor will arrange for a Certificate of Insurance evidencing appropriate coverage as to the Aircraft and the satisfaction of the requirements set forth above to be given by its insurance carriers to Lessee upon Lessee’s request. **SECTION FIVE** **RESTRICTIONS ON USE**
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**SECTION FIVE** **RESTRICTIONS ON USE** Lessee may operate the Aircraft only for the purposes and within the geographical limits set forth in the insurance policy or policies obtained in compliance with this Lease. The Aircraft will be operated at all times in accordance with the flight manual and all manufacturer’s suggested operating procedures. Furthermore, Lessee will not use the Aircraft in violation of any foreign, federal, state, territorial, or municipal law or regulation and will be solely responsible for any fines, penalties, or forfeitures occasioned by any violation by Lessee. If such fines or penalties are imposed on Lessor and paid by Lessor, Lessee will reimburse Lessor for the amount thereof within thirty (30) days of receipt by Lessee of written demand from Lessor. Lessee will not base the Aircraft, or permit it to be based, outside the limits of the United States of America, without the written consent of Lessor.   4
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The Aircraft will be flown only by certificated and qualified pilots and will be maintained only by certificated and qualified mechanics.Lessor agrees, represents and warrants that Lessee may make an independent choice in selecting crew members that Lessee uses on Lessee flights. Lessee will not directly or indirectly create, incur, assume or suffer to exist any lien on or with respect to the Aircraft. Lessee will promptly, at its own expense, take such action as may be necessary to discharge any lien not excepted above if the same will arise at any time. This Lease shall be subject and subordinate in law and equity to any existing or future security interest, mortgage or deeds of trust placed by Lessor upon the Aircraft. Lessee acknowledges and agrees that the Aircraft shall not be available for use by Lessee during periods when Lessor is using the Aircraft or has reserved the Aircraft for use. **SECTION SIX** **INSPECTION BY LESSOR** Lessee agrees to permit Lessor or any authorized agent to inspect the Aircraft at any reasonable time and to furnish any information in respect to the Aircraft and its use that Lessor may reasonably request. **SECTION SEVEN** **ALTERATIONS** Except in accordance with other written agreements entered into subsequent to the date of this Lease between Lessee and Lessor regarding maintenance of the Aircraft, Lessee will not have the right to alter, modify, or make additions or improvements to the Aircraft without the permission of Lessor. All such alterations, modifications, additions, and improvements as are so made will become the property of Lessor and will be subject to all of the terms of this Lease.   5
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**SECTION EIGHT** **MAINTENANCE AND REPAIR** Lessee shall inspect the Aircraft and all maintenance records pertaining to the Aircraft and confirm the airworthiness of the Aircraft prior to each flight under this Lease. If Lessee determines any repair or maintenance should be completed prior to any flight, Lessee shall not operate the Aircraft until such time as certificated and qualified mechanics have completed such repairs or maintenance. Lessor shall schedule and pay for all repairs and maintenance on the Aircraft during the term of this Lease, including all ferry flights and transportation charges on replacements parts and accessories. Lessee’s proportionate share of the cost of all such repairs and maintenance is included in Lessee’s lease payments to Lessor. Lessor will be entitled to any and all salvage from broken or worn out parts. All inspections, repairs, modifications, maintenance, and overhaul work to be accomplished by Lessor will be performed by personnel certificated to perform such work and will be performed in accordance with the standards set by the Federal Aviation Regulations. Lessee will maintain all log books and records pertaining to the Aircraft during the term of this Lease in accordance with the Federal Aviation Regulations. Such records will be made available for examination by Lessor, and at the termination of this Lease, Lessee will deliver such records to Lessor. Lessee agrees and acknowledges that Lessor has arranged for the Aircraft to be maintained by Airmax, LLC in accordance with 14 C.F.R. Part 91, and accordingly, Lessee shall provide the Aircraft records and logbooks to Airmax, LLC as required by Airmax, LLC to maintain the Aircraft.   6
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**SECTION NINE** **TITLE** The registration of and title to the Aircraft will be in the name of the Lessor, and the Aircraft, at all times during the term of this Lease or any extension, will bear United States registration markings. All responsibility and obligations in regard to the operation of the Aircraft as above owned, registered, and marked will be borne by Lessee during the term of this Lease. **SECTION TEN** **PAYMENT OF TAXES** Lessee will pay all taxes associated with Lessee’s use of the Aircraft on Lessee’s own business, including landing fees, fuel taxes, and any other taxes or fees which may be assessed against a specific flight by Lessee. **SECTION ELEVEN** **ASSIGNMENT** Lessee shall not assign this Lease or any interest in the Aircraft, or sublet the Aircraft, without prior consent of Lessor. Subject to the foregoing, this Lease inures to the benefit of, and is binding on, the heirs, legal representatives, successors, and assigns of the parties. **SECTION TWELVE** **ACCIDENT AND CLAIM** Lessee will immediately notify Lessor and Airmax, LLC of each accident involving the Aircraft, which notification will specify the time, place, and nature of the accident or damage, the names and addresses of parties involved, persons injured, witnesses, and owners of properties damaged, and such other information as may be known. Lessee will advise Lessor of all correspondence, papers, notices, and documents whatsoever received by Lessee in connection with any claim or demand involving or relating to the Aircraft or its operation, and will aid in any investigation instituted by Lessor and in the recovery of damages from third persons liable therefor.   7
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**SECTION THIRTEEN** **RETURN OF AIRCRAFT TO LESSOR** Upon the conclusion of each flight conducted by Lessee under this Lease, Lessee will return the Aircraft to Lessor at the Centennial Airport, Englewood, Colorado, in as good operating condition and appearance as when received, ordinary wear, tear and deterioration excepted, and will indemnify Lessor against any claim for loss or damage occurring prior to the actual physical delivery of the Aircraft to Lessor. **SECTION FOURTEEN** **MODIFICATION OF AGREEMENT** This Lease constitutes the entire understanding between the parties, and any change or modification must be in writing and signed by both parties.   8
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**SECTION FIFTEEN** **GOVERNING LAW** This Lease is entered into under, and is to be construed in accordance with, the laws of the State of Colorado. **SECTION SIXTEEN** **TRUTH IN LEASING STATEMENT** THE AIRCRAFT, A CANADAIR LTD., CL-600-2B16, MANUFACTURER’S SERIAL NO. 5180, CURRENTLY REGISTERED WITH THE FEDERAL AVIATION ADMINISTRATION AS N518CL, HAS BEEN MAINTAINED AND INSPECTED UNDER FAR PART 91 DURING THE 12 MONTH PERIOD PRECEDING THE DATE OF THIS LEASE. THE AIRCRAFT WILL BE MAINTAINED AND INSPECTED UNDER FAR PART 91 FOR OPERATIONS TO BE CONDUCTED UNDER THIS LEASE. DURING THE DURATION OF THIS LEASE, INTREPID POTASH, INC. 700 17TH ST., SUITE 1700, DENVER, CO 80202, IS CONSIDERED RESPONSIBLE FOR OPERATIONAL CONTROL OF THE AIRCRAFT UNDER THIS LEASE. 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 “INSTRUCTIONS FOR COMPLIANCE WITH TRUTH IN LEASING REQUIREMENTS” ATTACHED HERETO ARE INCORPORATED HEREIN BY REFERENCE.
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THE UNDERSIGNED DAVID W. HONEYFIELD AS THE EXECUTIVE VICE PRESIDENT, CHIEF FINANCIAL OFFICER AND TREASURER OF INTREPID POTASH, INC. 700 17TH ST., SUITE 1700, DENVER, CO 80202, CERTIFIES THAT INTREPID POTASH, INC. IS RESPONSIBLE FOR OPERATIONAL CONTROL OF THE AIRCRAFT AND THAT I UNDERSTAND ITS RESPONSIBILITIES FOR COMPLIANCE WITH APPLICABLE FEDERAL AVIATION REGULATIONS. SIGNED, /s/ David W. Honeyfield, DAVID W. HONEYFIELD.   9
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IN WITNESS WHEREOF, the parties have executed this Lease.   | | | | | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | --- | | | | | | | | | | | | **LESSOR** | | | | **BH Holdings LLC** | | | | | By:  |   | Intrepid Oil & Gas, LLC | | |   | Its: |   | Manager | | |   | |   | By:  |   | Intrepid Production Corporation | | |   | |   | Its:  |   | Manager | | | | | | | | |   | |   | |   | x |   | /s/ Robert P. Jornayvaz III | | |   | |   | |   | By:  |   | Robert P. Jornayvaz III | | |   | |   | |   | Its:  |   | President |   | | | | | --- | --- | --- | | | | | | **LESSEE** | | | | **Intrepid Potash, Inc.** | | | | | By:  |   | /s/ David W. Honeyfield | | |   | David W. Honeyfield Its: Executive Vice President,       Chief Financial Officer and Treasurer |
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**INSTRUCTIONS FOR COMPLIANCE WITH “TRUTH IN LEASING”** **REQUIREMENTS**   | | | | --- | --- | | 1. | Mail a copy of the lease agreement to the following address via certified mail, return receipt requested, immediately upon execution of the agreement (14 C.F.R. 91.23 requires that the copy be sent within twenty-four hours after it is signed): | Federal Aviation Administration Aircraft Registration Branch ATTN: Technical Section P.O. Box 25724 Oklahoma City, Oklahoma 73125   | | | | --- | --- | | 2. | Telephone the nearest Flight Standards District Office at least forty-eight hours prior to the first flight under this lease agreement. |   | | | | --- | --- | | 3. | Carry a copy of the lease agreement in the aircraft at all times. |
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EX-10.1 3 dex101.htm AMENDMENT NO. 1 TO AIRCRAFT LEASE AGREEMENT Amendment No. 1 to Aircraft Lease Agreement **Exhibit 10.1** **AMENDMENT NO. 1 TO AIRCRAFT LEASE AGREEMENT** **BETWEEN** **WHL MANAGEMENT LLC** **A CALIFORNIA LIMITED LIABILITY COMPANY** **AS LESSOR** **AND** **WILLIAMS-SONOMA, INC.** **A CALIFORNIA CORPORATION** **AS LESSEE** **DATED** **MAY 26, 2010**
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**AMENDMENT NO. 1 TO AIRCRAFT LEASE AGREEMENT** **AMENDMENT NO. 1 TO AIRCRAFT LEASE AGREEMENT** (this “**Amendment**”) dated May 26, 2010 (the “**Effective Date**”), by and between **WHL MANAGEMENT LLC**, a California limited liability company (“**Lessor**”), and **WILLIAMS-SONOMA, INC.**,a California corporation (“**Lessee**”). **RECITALs** **WHEREAS**, Lessor and Lessee are parties to that certain Aircraft Lease Agreement dated May 16, 2008 (the “**Agreement**”); **WHEREAS**, Lessor, Lessee and Bank of America, N.A. (“**Bank**”) are parties to that certain Consent to Lease and Assignment dated May 16, 2008 (“**Consent**”); and **WHEREAS**, Lessee and Mr. Howard Lester (“**Executive**”) are parties to that certain Retirement and Consulting Agreement dated January 25, 2010 (the “**Consulting Agreement**”); and **WHEREAS,** pursuant to the Consulting Agreement, the parties agreed to maintain the full 36-month term of the Agreement and the Executive agreed to cause Lessor to give Lessee an option to purchase the Aircraft; and **WHEREAS**,the parties desire to amend the Agreement to incorporate the agreements regarding the Aircraft set forth in the Consulting Agreement. **NOW, THEREFORE**, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the sufficiency of which is hereby
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herein, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereto agree as follows: **AGREEMENT** 1. **CAPITALIZED TERMS.** All capitalized terms used herein and not otherwise defined shall have the meaning set forth in the Agreement. 2. **AMENDMENT OF AGREEMENT**. **(a)** The parties agree that the retirement of the Executive constitutes a Retirement Event under the Agreement. Notwithstanding such Retirement Event, the parties agree that the Lease Term of the Agreement shall continue and that the Agreement shall not terminate pursuant to Section 15 due to such Retirement Event. **(b)** The parties agree that the Agreement is hereby amended to provide that Lessee shall have the option to purchase the Aircraft from Lessor on the expiration of the Lease Term (the “**Option**”) for the purchase price of **US$32,000,000** (the “**Purchase Price**”). Lessee shall provide Lessor with preliminary, non-binding written notice of Lessee’s intent whether or not to exercise the Option (the “**Preliminary Notice**”) on or within thirty (30) days prior to December 1, 2010. Regardless   1.
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of the intent expressed by Lessee in the Preliminary Notice, Lessee shall provide Lessor with binding, final written notice of Lessee’s intent to exercise the Option (the “**Option Notice**”) on January 3, 2011 (the “**Exercise Date**”); the Option Notice may not be delivered by Lessee prior to the Exercise Date and shall not be deemed to be binding or effective prior to the Exercise Date. If Lessee fails to provide the Option Notice on the Exercise Date, then the Option shall be void. If Lessee elects to exercise the Option, then: **(i)** Lessee’s acquisition of the Aircraft shall occur on Monday, May 16, 2011, or such other date that is mutually agreeable to the parties (the “**Closing Date**”). On or before the Closing Date, Lessee shall, at its sole expense, position the Aircraft in Portland, Oregon or other mutually agreeable location in the continental United States (“**Closing Location**”). **(ii)** Prior to the Closing Date, Lessor shall position an original executed FAA Lease Termination for the Agreement, an FAA Bill of Sale, and any and all other documents necessary to convey good and marketable title to the Aircraft free and clear of all liens and encumbrances to Lessee (except for the Warranty Bill of Sale referred to below) with the law firm of Daugherty, Fowler, Peregrin, Haught & Jenson in Oklahoma City, Oklahoma (“**Escrow Agent**”). Prior to the Closing Date, Lessee shall position an original executed FAA Lease Termination for the Agreement and FAA Registration Application with Escrow Agent.
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**(iii)** On the Closing Date and at the Closing Location, Lessor shall have an authorized individual present, with proof of authorization, to execute and deliver to Lessee (1) a Warranty Bill of Sale substantially in the form attached hereto and incorporated herein as **Exhibit 1-A**; (2) an Assignment of Warranties substantially in the form attached hereto and incorporated herein as **Exhibit 1-B**; (3) a Receipt for Funds substantially in the form attached hereto and incorporated as **Exhibit 1-C**; and (4) California Statements of Exemption substantially in the form attached hereto and incorporated herein as **Exhibit 1-D**. On the Closing Date and at the Closing Location, Lessee shall have an authorized individual present, with proof of authorization, to execute and delivery to Lessor the Delivery Receipt substantially in the form attached hereto and incorporated as **Exhibit 1-E**; and the California Statements of Exemption substantially in the form attached hereto and incorporated herein as **Exhibit 1-D**. **(iv)** Lessor shall deliver to Lessee any items that Lessor has removed or retained from the Aircraft, if any, prior to the Closing (as defined below). All return conditions of Section 9 shall be waived upon acquisition of the Aircraft by Lessee. Except with respect to the situations identified in **Section 2(b)(v)** below, the Aircraft will be sold to Lessee regardless of its then-current condition, as-is and with all faults. The Aircraft registration number, N878HL, shall be transferred to Lessee upon the Closing.
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**(v)** For the avoidance of doubt, the parties hereby state that Lessor shall remain responsible to make any Capital Improvements under Section 5(l) of the Agreement until the Closing. If the Aircraft requires Capital Improvements to keep the Aircraft airworthy and Lessor makes such Capital Improvements after January 25, 2010, and prior to the Closing, then the Purchase Price shall be adjusted upwards to account for the increased value of the Aircraft resulting therefrom at the time of completion of such Capital Improvements. If the parties cannot agree on the increase in value of the Aircraft due to such Capital Improvements, then an appraisal will be performed to determine the increase in Aircraft value, if any, that is proximately caused solely as a result of such Capital Improvements. The appraisal will be conducted by a panel of three (3) experienced aircraft appraisers, with each party selecting, and bearing the expense of, one (1) appraiser and the two (2) appraisers thus appointed selecting the third appraiser, who will act as chairman and whose expense will be borne equally by both   2.
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parties. The findings of the two (2) appraisers which are closest in value shall be averaged and shall constitute the increase in value, if any, of the Aircraft due to such Capital Improvements. Notwithstanding the foregoing, the appraisal process described above shall be for the limited purpose described above and shall not be used to revalue the entire Aircraft. The parties also agree that if during the period of time from the Lessee’s issuance of the Option Notice up to and including the Closing: **(aa)** the Aircraft is damaged in a manner that would trigger Lessee’s obligation of indemnification under Section 14(c) of the Agreement, then Lessee’s acquisition of the Aircraft under the Option shall satisfy any and all of the obligations of Lessee to Lessor under Section 14(c) of the Agreement, **(bb)** the Aircraft is damaged (but not destroyed) in a manner that would trigger a claim and payment from the insurer under the hull insurance for the Aircraft, then the Purchase Price shall be decreased by the amount of such payment, or, if the amount of such payment is not known prior to Closing, then Lessor shall assign such payment to Lessee at Closing, **(cc)** the Aircraft is destroyed or determined to be a total loss, then the Option shall terminate, Lessor and Lessee shall be released from their obligations under this Amendment including Lessee’s obligation to purchase the Aircraft and the Agreement shall terminate. In such event, any hull insurance payable with respect to the Aircraft shall be paid to Bank, to the extent of its interest under the Aircraft Mortgage, with any surplus being retained by Lessor.
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**(vi)** THE AIRCRAFT IS BEING SOLD TO LESSEE BY LESSOR HEREUNDER “AS IS,” AND, EXCEPT AS SET FORTH IN THE WARRANTY BILL OF SALE, LESSOR SHALL NOT BE DEEMED TO HAVE MADE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE AIRWORTHINESS, CONDITION, VALUE, DESIGN, OPERATION, MERCHANTABILITY OR FITNESS FOR USE OF THE AIRCRAFT, AS TO THE ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE, AS TO THE ABSENCE OF ANY INFRINGEMENT OF ANY PATENT, TRADEMARK OR COPYRIGHT, AS TO THE ABSENCE OF OBLIGATIONS BASED ON STRICT LIABILITY IN TORT, OR AS TO THE QUALITY OF THE MATERIAL OR WORKMANSHIP OF THE AIRCRAFT OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE AIRCRAFT. **(vii)**The parties agree that the term Taxes shall be expanded to include sales, use, retail, or other taxes that may be imposed on the Aircraft, Lessor or Lessee as a result of the purchase, sale or delivery of the Aircraft from Lessor to Lessee or use of the Aircraft by Lessee after Closing; *provided, however,* that Taxes shall not include any taxes to the extent that they relate to any income or capital gain taxes that may be imposed on Lessor on the sale of the Aircraft to Lessee.
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**(viii)** The Cape Town Convention will be applicable to the sale of the Aircraft under the Option. The parties agree to cooperate and perform such acts as necessary to register at Closing, Lessee’s purchase of the Aircraft including, without limitation, its engines, as a contract of sale under the Cape Town Convention. The parties further agree to each appoint Escrow Agent as its professional user entity in regard to the Aircraft including, without limitation, its engines in order for Escrow Agent to register the contract of sale at Closing. Lessee shall not register any prospective contract of sale with the International Registry with respect to the Aircraft or any part thereof; any contracts of sale registered with respect to the Option shall occur at Closing.   3.
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**(ix)** Lessor’s right to terminate the Agreement pursuant to Section 15 of the Agreement shall not be impacted by the exercise of the Option by Lessee. Termination of the Agreement by Lessor or Lessee pursuant to Section 15 of the Agreement shall terminate the Option. Upon execution of this Amendment, (i) Lessee shall no longer have the right to terminate the Agreement pursuant to the penultimate sentence of Section 15 of the Agreement or pursuant to Section 2(b)(iii) of the Consent; (ii) Lessee’s right to terminate the Agreement pursuant to the remainder of Section 15 of the Agreement and Section 2(b)(ii) of the Consent shall not be impacted by the exercise of the Option by Lessee; and (iii) if, on May 16, 2011, the conditions of Closing described in Section 2(b)(x) of this Amendment are not met by Bank or Lessor, then Lessee may elect to terminate the Option, not purchase the Aircraft, and return the Aircraft to Lessor as set forth in the Agreement.
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**(x)** On the Closing Date and upon (i) Lessee’s confirmation it is prepared to transfer the Purchase Price to Lessor in compliance with Lessor’s instructions (which may include, without limitation, instructions for payment of the Purchase Price directly to Bank), (ii) Bank’s confirmation that upon Lessee’s payment to Bank of the Purchase Price (or as much of the Purchase Price as Lessor directs Lessee to pay to Bank), Bank will release its lien release documents with respect to the Aircraft, (iii) Lessor’s confirmation that upon Lessee’s payment of the Purchase Price, and the filing of the documents positioned with Escrow Agent, the Aircraft shall be conveyed to Lessee with good and marketable title, free and clear of all liens and encumbrances, and that Escrow Agent has been provided with such irrevocable instructions, and (iv) Escrow Agent’s confirmation that it has received all necessary documents and is prepared to file them with the Federal Aviation Administration, then: (v) Lessee shall initiate transfer of the Purchase Price to Lessor and/or Bank, as applicable, by wire transfer and provide confirmation number(s) for same, and (vi) Escrow Agent shall initiate filing of the documents identified in **Section 2(b)(ii)** with the Federal Aviation Administration. After steps (i) – (vi) are complete, Lessor shall deliver the Aircraft to Lessee and Lessee shall accept the Aircraft by executing and delivering the documents identified in **Section 2(b)(iii)**. The completion of all the items in the preceding two sentences shall constitute the “**Closing**”. Without altering Lessee’s obligations with respect to maintaining the condition of the Aircraft under the Agreement, all risk of loss or damage to the Aircraft shall transfer to Lessee upon the Closing Delivery.
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3. **GOVERNING LAW/JURISDICTION.**This Amendment shall be governed by and construed under the laws of the State of California as applied to agreements among California residents entered into and to be performed entirely within California. The parties hereby submit to the exclusive jurisdiction and venue of any court (federal, state or local) having situs within the State of California. 4. **COUNTERPARTS**. This Amendment may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original, and such counterparts together shall constitute and be one and the same instrument. 5. **NO FURTHER AMENDMENT; TREATMENT OF TRANSACTIONS**. Except as modified pursuant to this Amendment, the Agreement and the Consent shall remain unmodified and in full force and effect, and the parties hereto confirm that the Agreement and Consent shall remain in effect except as amended hereby. Prior to the Closing, Lessor and Lessee shall report the Lease and the Option as separate transactions for financial accounting and federal, state and local income and other tax purposes. Lessor and Lessee shall continue to report Lessor as being the owner of the Aircraft for accounting and tax purposes until the Closing. (SIGNATURES ON NEXT PAGE)   4.
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The parties have executed this Amendment as of the day and year first written above.   | | | | | --- | --- | --- | | | | | | **LESSOR:** |    | **LESSEE:** | | | | | **WHL MANAGEMENT LLC** |    | **WILLIAMS-SONOMA, INC.** | | a California limited liability company |    | a California corporation | |   By: /s/ R. Kirk Lester |    | By: /s/ Sharon L. McCollam | |   Printed Name: R. Kirk Lester |    | Printed Name: Sharon L. McCollam | |   Its: Manager |    | Its: Executive Vice President, Chief | | |    |   Operating and Chief Financial Officer | | WHL Management LLC |    | Williams-Sonoma, Inc. | | Address: c/o R. Kirk Lester, PO Box 1475 |    | Address: 3250 Van Ness Avenue | | Rancho Mirage, CA 92270 |    | San Francisco, CA 94109 | | Phone: 760-779-5236 |    | Phone: 415-616-8775 | | Fax: 703-837-1592 |    | Fax: 415-439-1067 | | Attn: R. Kirk Lester |    | Attn: Sharon McCollam | | E-mail: kirk@rklester.com |    | E-mail: smccollam@wsgc.com |   | | | | | --- | --- | --- | | | | | | Acknowledged and consented to by: | | | | BANK OF AMERICA, N.A. |
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| | | | | --- | --- | --- | | | | | | By: |   | /s/ Lucia Walsh | | | | | Name: |   | Lucia Walsh | | | | | Title: |   | Vice President |   5.
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**EXHIBIT 1-A** **AMENDMENT NO. 1 TO AIRCRAFT LEASE AGREEMENT** **WARRANTY BILL OF SALE** KNOW ALL MEN BY THESE PRESENTS: THAT WHL Management LLC (“Seller”) is the owner of the full legal and beneficial title to that certain 2007 Bombardier Inc. Model BD-700-1A11 “Global 5000” aircraft bearing manufacturer’s serial number 9261, currently registered as N878HL, together with two (2) Rolls-Royce Deutschland BR700-710A2-20 engines installed thereon, bearing manufacturer’s serial numbers 12633 and 12634 and all other appliances, avionics, parts, additions, appurtenances, accessories, instruments, components, systems, furnishings, and other items of equipment now installed thereon, and all flight manuals, log books and records required by the United States Federal Aviation Administration, relating to said aircraft, engines, components and systems as further described in the Aircraft Delivery Receipt to be executed at acceptance by Williams-Sonoma, Inc. (“Purchaser”) (collectively, the “Aircraft”). THAT for and in consideration of the sum of $10.00 and other valuable consideration, Seller does on the date hereof grant, convey, transfer, bargain, sell, deliver and set over, all of its right, title and interest in and to the Aircraft unto Purchaser.
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THAT Seller hereby warrants to Purchaser, its successors and assigns, that there is hereby conveyed to Purchaser good and marketable title to the Aircraft free and clear of any and all mortgages, claims, liens, charges, leases, rights of others, security interests or other encumbrances of any kind, and that it will warrant and defend such title forever against all claims and demands whatsoever. THE AIRCRAFT IS BEING SOLD TO LESSEE BY LESSOR HEREUNDER “AS IS,” AND, EXCEPT AS SET FORTH IN THE WARRANTY BILL OF SALE, LESSOR SHALL NOT BE DEEMED TO HAVE MADE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE AIRWORTHINESS, CONDITION, VALUE, DESIGN, OPERATION, MERCHANTABILITY OR FITNESS FOR USE OF THE AIRCRAFT, AS TO THE ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE, AS TO THE ABSENCE OF ANY INFRINGEMENT OF ANY PATENT, TRADEMARK OR COPYRIGHT, AS TO THE ABSENCE OF OBLIGATIONS BASED ON STRICT LIABILITY IN TORT, OR AS TO THE QUALITY OF THE MATERIAL OR WORKMANSHIP OF THE AIRCRAFT OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE AIRCRAFT. **IN WITNESS WHEREOF**, Seller has caused this instrument to be executed by its duly authorized officer on this              day of                     , 2011.   1-A-1
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| | | --- | | | | **SELLER:** | | | | **WHL MANAGEMENT LLC** a California limited liability company | | | | By: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ | | | | Printed Name: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ | | | | Title: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ | | | | Location of Delivery: Portland, Oregon | | | | Date: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ | | | | Time: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ | | | | Airframe Hours: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ | | | | Engine Hours: Left                             Right                           |   1-A-2
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| | | | | | | | | | | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | | | | | | | | | | | | | | | | | | STATE OF OREGON |    |   |    | ) |   |   CAPACITY CLAIMED BY SIGNER Though statute does not require the Notary to fill in the data below, doing so may prove invaluable to persons relying on the document. | |   |    | |    | ) ss. |   | | COUNTY OF                                       |    | |    | ) |   | | | | | On             , 2011, before me,                                                                                                                , personally appeared                                                                                                           , |   | ¨  Individual ¨  Corporate Officer(s) | |     ¨ |   |   personally known to me |   |                                                                                  | |   |   | **-or-** |   | ¨  Partner(s) |   | ¨  Limited ¨  General | |     ¨ |   | proved to me on the basis of satisfactory evidence |   |   |
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¨  General | |     ¨ |   | proved to me on the basis of satisfactory evidence |   |   | |   |   | |   | to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. |   | ¨  Attorney-in-Fact ¨  Trustee(s) ¨  Guardian/Conservator |   |   | |   |   | |   |   | ¨  Other:                                                                       \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ | | |   | |   | |    | |    | |   | | |   |   | |   | |    | |    | Witness my hand and official seal. |   | SIGNER IS REPRESENTING: Name of person(s) or entity(ies) | | | | | | | | | |   |   | |   | |    | |    | |    |   |   | WHL Management LLC                                                                                  | | |   | |   | |    | |    |                                                                                               |   | |
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|   | | |   |   |   |   |   |    |   |    | Signature of the Notary   |   |   |   |   | |   This certificate must be attached to the document described at right: |    |   Title or Type of Document: Warranty Bill of Sale   Number of Pages: 3 Date of Document:                                                           | |   |    |   |    |   Signer(s) other than named above: N/A   |   |   |   |   |
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1-A-3
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**Exhibit 1-B** **AMENDMENT NO. 1 TO AIRCRAFT LEASE AGREEMENT** **ASSIGNMENT OF WARRANTIES** KNOW ALL MEN BY THESE PRESENTS: In accordance with the terms and conditions of the Option set forth in the Aircraft Lease Agreement between WHL Management LLC (“Seller”) and Williams-Sonoma (“Purchaser”) dated May 16, 2008, as amended, regarding that certain 2007 Bombardier Inc. Model BD-700-1A11 “Global 5000” aircraft bearing manufacturer’s serial number 9261, currently registered as N878HL, together with two (2) Rolls-Royce Deutschland BR700-710A2-20 engines installed thereon, bearing manufacturer’s serial numbers 12633 and 12634 and all other appliances, avionics, parts, additions, appurtenances, accessories, instruments, components, systems, furnishings, and other items of equipment now installed thereon, and all flight manuals, log books and records required by the United States Federal Aviation Administration, relating to said aircraft, engines, components and systems as further described in the Aircraft Delivery Receipt to be executed at acceptance by Purchaser (collectively, the “Aircraft”): Seller hereby assigns to Purchaser, to the extent assignable, such rights as Seller may have under (a) any warranty (express or implied) with respect to the Aircraft and (b) any service policies or product agreements with respect to the Aircraft, in each case to the extent the same exist in favor of Seller and are capable of being assigned by or otherwise available to Purchaser (collectively, the “Assigned Rights”).
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Seller hereby acknowledges Purchaser’s right to enforce in its own name such Assigned Rights as Seller may have with respect to the Aircraft to the extent assigned (and assignable) to Purchaser by Seller hereunder. **IN WITNESS WHEREOF**, Seller has caused this instrument to be executed by its duly authorized representative on                  , 2011.   | | | --- | | | | **SELLER:** | | | | **WHL MANAGEMENT LLC** a California limited liability company | | | | By:                                                                                                   | | | | Printed Name:                                                                            | | | | Title:                                                                                               |   1-B-1
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**EXHIBIT 1-C** **AMENDMENT NO. 1 TO AIRCRAFT LEASE AGREEMENT** **RECEIPT FOR FUNDS** The undersigned hereby acknowledges receipt of the sum of **$32,000,000** for payment of that certain 2007 Bombardier Inc. Model BD-700-1A11 “Global 5000” aircraft bearing manufacturer’s serial number 9261, currently registered as N878HL, together with two (2) Rolls- Royce Deutschland BR700-710A2-20 engines installed thereon, bearing manufacturer’s serial numbers 12633 and 12634 and all other appliances, avionics, parts, additions, appurtenances, accessories, instruments, components, systems, furnishings, and other items of equipment now installed thereon, and all flight manuals, log books and records required by the United States Federal Aviation Administration, relating to said aircraft, engines, components and systems as further described in the Aircraft Delivery Receipt to be executed at acceptance by Purchaser (collectively, the “Aircraft”) **IN WITNESS WHEREOF**, the undersigned has caused this instrument to be executed by its duly authorized representative on                  , 2011.   | | | --- | | | | **WHL MANAGEMENT LLC** | | A California limited liability company | | | | By:                                                                                                   | | | | Printed Name:                                                                             | | | | Title:                                                                                               |   1-C-1
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**AMENDMENT NO. 1 TO AIRCRAFT LEASE AGREEMENT** **EXHIBIT 1-D** ***STATEMENTS OF EXEMPTION PURSUANT*** ***TO SECTIONS 6247 AND 6248 OF THE CALIFORNIA SALES AND USE TAX LAW***   | | | | | | | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | | | | | | | | | | | | | | I hereby certify, under penalty of perjury under the laws of the State of California, that I delivered a | | 2007 |    | Bombardier BD-700-1A11 |    | 9261         |   | to |   | Williams-Sonoma, Inc. |    | at | | (Year) |    | (Make)     (Model) |    | (Serial No.) |   | |   | (Name of Buyer) |    | |
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| | | | | | | | | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | | | | | | | | | | | | | | | | Portland, Oregon |   | on |   | |   | on behalf of |   | WHL Management LLC |    | . |    |   | | (Out of State Location) |   | |   | (Date of Delivery) |   | |   | (Name of Seller) |    | |    | |   | | | | | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | --- | | | | | | | | | | | | Signed |    | |    |   |    | |    |   | | |    | (Signature of Person Making Delivery) |    | (Date) |    | |    | |   | | | | | | | --- | --- | --- | --- | --- | | | | | | | | Capacity |   | |    |   | | |   | (Salesman - Agent - Employee - Partner) |    | |
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| | | --- | | | | = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = | | | I hereby certify, under penalty of perjury under the laws of the State of California, that I took delivery of a   | | | | | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | --- | | | | | | | | | | | | 2007 |    | Bombardier |    | BD-700-1A11 |    | 9261 |    |   | | (Year) |    | (Make) |    | (Model) |    | (Serial No.) |    | |
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| | | | | | | | | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | | | | | | | | | | | | | | | | on |   |         , 2011 |   | at |   | Portland, Oregon |   |     from |   |     WHL Management LLC |   |   | | |   | (Date) |   | |   | (Out of State Location - City and State) |   | (Name of Person Delivering Aircraft) |   | | CHECK ONE OF THE FOLLOWING:   | | | | --- | --- | | ¨ | ***Non-Resident*****:** I further certify that the buyer does not have a residence in California where it resides permanently, personally or recurrently and that this aircraft was purchased for use outside the State of California. |   | | | | --- | --- | | x | ***California Resident*****:** I further certify that the buyer has a residence in California where it resides permanently, personally or recurrently and that this aircraft was purchased for use in Interstate or Foreign Commerce pursuant to the provisions of California Sales and Use Tax Regulation §1620(b)(5)(C)3 summarized below. |
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I understand that the aircraft delivery must occur outside of California. One business trip must occur outside of California before initial entry into the state. Subsequent to California entry and for the next six months, 50% or more of the flight time must be for interstate or foreign commerce purposes. If these requirements are not met, and if determined that use tax is due, the buyer will pay it directly to the California State Board of Equalization.   | | | | | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | --- | | | | | | | | | | | | Signed |    |   |    |   |    |         , 2011 |    |   | | |    | (Purchaser or Agent) |    | (Title) |    | (Date) |    | | | | | --- | | | |   **= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =** |
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On this      day of             , 2011, before me                                 , a Notary Public in and for the county of                     , State of Oregon, duly commissioned and sworn, personally appeared before me, both                                  and                                 , known to me ***OR*** proved to me on the basis of satisfactory evidence to be the persons whose names are subscribed to the within instrument, and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the persons, or the entities upon behalf of which the persons acted, executed the instrument.   1-D-1
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| | | | | --- | --- | --- | | | | | |             WITNESS my hand and official seal. |    |   | | |    | (Signature of Notary Public)                     |
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**AMENDMENT NO. 1 TO AIRCRAFT LEASE AGREEMENT** **EXHIBIT 1-E** **AIRCRAFT DELIVERY RECEIPT** **WILLIAMS-SONOMA, INC.** (“Purchaser”) hereby accepts and acknowledges receipt from **WHL MANAGEMENT LLC** (“Seller”) in accordance with the terms and conditions of the Option set forth in the Aircraft Lease Agreement between Lessee and Lessor dated May 16, 2008, as amended (the “Agreement”), of that certain **2007 Bombardier Inc. Model BD-700-1A11 “GLOBAL 5000”** aircraft, U.S. registration number **N878HL**, and bearing manufacturer’s serial number **9261**, including its **ROLLS-ROYCE DEUTSCHLAND BR710A2-20** engines, serial numbers **12633** and **12634**, and all other appliances, avionics, parts, additions, appurtenances, accessories, instruments, components, systems, furnishings, and other items of equipment now installed thereon, and all flight manuals, log books and records required by the United States Federal Aviation Administration (“**FAA**”) relating to said aircraft, engines, components and systems, including the equipment and accessories set forth in Schedule 1 attached hereto (collectively, the “**Aircraft**”). Purchaser has determined that the Aircraft has the following hours:   | | | --- | | | | Airframe:                          | | Engine S/N 12633:                              | | Engine S/N 12634:                              |
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IN WITNESS WHEREOF, this instrument has been duly signed by the undersigned authorized party, and the Aircraft accepted at                             Airport, in             , on             , 2011, at     a.m./p.m. local time.   | | | --- | | | | **PURCHASER:** | | | | WILLIAMS-SONOMA, INC. a California corporation | | | | By:                                                                                                   | | Print Name:                                                                                 | | Its:                                                                                                    |   | | | --- | | | | **SELLER:** | | | | WHL MANAGEMENT LLC a California limited liability company | | | | By:                                                                                             | | Print Name:                                                                            | | Its:                                                                                              |   1-E-1
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| | | | | | | | | | | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | | | | | | | | | | | | | | | | | | STATE OF OREGON |    |   |    | ) |   |   CAPACITY CLAIMED BY SIGNER Though statute does not require the Notary to fill in the data below, doing so may prove invaluable to persons relying on the document. | |   |    | |    | ) ss. |   | | COUNTY OF                                   |    | |    | ) |   | | | | | On             , 2011, before me,                                                                                                                       , personally appeared                                                          , |   | ¨ Individual ¨ Corporate Officer(s) | |     ¨ |   |   personally known to me |   |                                                                                  | |   |   | **-or-** |   | ¨ Partner(s) |   | ¨ Limited ¨ General | |     ¨ |   | proved to me on the basis of satisfactory evidence |   |   | |   |   | |   | to be the person(s) whose name(s) is/are subscribed to the within instrument and
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|   |   | |   | to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. |   | ¨ Attorney-in-Fact ¨ Trustee(s) ¨ Guardian/Conservator |   |   | |   |   | |   |   | ¨ Other:                                                                        \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ | | |   | |   | |    | |    | |   | | |   |   | |   | |    | |    | Witness my hand and official seal. |   | SIGNER IS REPRESENTING: Name of person(s) or entity(ies) | | | | | | | | | |   |   | |   | |    | |    | |    |   |   | Williams-Sonoma, Inc.                                                                                  | | |   | |   | |    | |    |                                                                                        |   | | |   |   |   |   |   |    |   |    | Signature of the Notary   |   |   |   |   |
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|   |   |   |   | | This certificate must be attached to the document described at right: |    | Title or Type of Document: Aircraft Delivery Receipt   Number of Pages: 1 Date of Document:                      | |   |    |   |    |   Signer(s) other than named above: Representative of WHL Management LLC   |
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| | | | | | | | | | | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | | | | | | | | | | | | | | | | | | STATE OF OREGON |    |   |    | ) |   |   CAPACITY CLAIMED BY SIGNER Though statute does not require the Notary to fill in the data below, doing so may prove invaluable to persons relying on the document. | |   |    | |    | ) ss. |   | | COUNTY OF                                   |    | |    | ) |   | | | | | On             , 2011, before me,                                                                                                                       , personally appeared                                                          , |   | ¨ Individual ¨ Corporate Officer(s) | |     ¨ |   |   personally known to me |   |                                                                                  | |   |   | **-or-** |   | ¨ Partner(s) |   | ¨ Limited ¨ General | |     ¨ |   | proved to me on the basis of satisfactory evidence |   |   | |   |   | |   | to be the person(s) whose name(s) is/are subscribed to the within instrument and
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|   |   | |   | to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. |   | ¨ Attorney-in-Fact ¨ Trustee(s) ¨ Guardian/Conservator |   |   | |   |   | |   |   | ¨ Other:                                                                        \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ | | |   | |   | |    | |    | |   | | |   |   | |   | |    | |    | Witness my hand and official seal. |   | SIGNER IS REPRESENTING: Name of person(s) or entity(ies) | | | | | | | | | |   |   | |   | |    | |    | |    |   |   | WHL Management LLC                                                                                  | | |   | |   | |    | |    |                                                                                        |   | | |   |   |   |   |   |    |   |    | Signature of the Notary   |   |   |   |   |
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|   |   |   |   | | This certificate must be attached to the document described at right: |    | Title or Type of Document: Aircraft Delivery Receipt   Number of Pages: 1 Date of Document:                      | |   |    |   |    |   Signer(s) other than named above: Representative of Williams-Sonoma, Inc.   |
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**SCHEDULE 1 TO AIRCRAFT DELIVERY RECEIPT** **AVIONICS AND EQUIPMENT**
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| | | --- | | | | **Lightning Sensor System (Honeywell)** | | **LH Entrance Jeppesen Manual (10max) Storage Drawer** | | **Noise Cancelling Headphones for Crew** | | **Wireless LAN** | | **Standby Analog Telephone Jack and Loose Equipment** **Handset (in Cockpit)** | | **Additional Wired Handset, without Cradle** | | **18.1 Inch LCD Pop Up Monitor in Credenza** | | **- 24 Inch Bulkhead Monitors. Quantity 2** | | **10.4 Inch Touchsecreen Monitor. Quantity 1** | | **- 3 in arm monitors** | | **Additional Galley Outlet (115v-60Hz)** | | **Utility Outlets For Cockpit (115VAC - 60Hz)** | | **Additional TRU & PDEs #5 and 6** | | **Service Lights Timer Cabin Power Override System** | | **Sunshield (Cockpit)** | | **Side Console Pouches in cockpit (connectors delta)** | | **Floor Mat Heaters (Entrance Area)** | | **Flight Compartment Printer** | | **Recliner Type Legrest, Single Seat (qty 6)** | | **Flexible Reading Light, Single Seat (qty 6)** | | **Flexible Reading Light, Double Seat (qty 2)** | | **Plug-in Headrest with Flexwings (qty 10)** | | **Single Seat Wide replacing Single Narrow Seat (qty 2)** | | **Three Place Divan** | | **Espresso Coffee Maker, Manual Fill** | | **Addition Fwd Cabin Windows (in Fwd Lavatory)** |
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| **Espresso Coffee Maker, Manual Fill** | | **Addition Fwd Cabin Windows (in Fwd Lavatory)** | | **Enviroclean System for Vacuum Toilet** | | **Electronic Flight Bag** | | **Logo Lights (Exterior)** | | **Enhanced Vision System** | | **Third FMS** | | **Flight Crew Quick Donning Oxygen Masks-Puritan Bennett** | | **Airshow: World Map Package** | | **Airshow: Day-Night Map with Times Zone** | | **Airshow: Static Logo** | | **Airshow: Video Briefing English and Non English** | | **Airshow: World Explorer** | | **Winglet Viewing Mirrors (Cockpit)** | | **Main Entry Door, Aft Handrail Extension** | | **Main Entry Door, Additional Airstair Storage** | | **Mid Cabin Bulkhead C/W Manual Sliding Frangible Door and** **EICAS Annunciation Half Bulkhead RHS** | | **Provisions for Electrical Outlet in LH Galley Annex** | | **Aft Lavatory Large 50.5 inch (EVAC vacuum toilet)** |
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TOGETHER WITH ALL ADDITIONS, ACCESSIONS, MODIFICATIONS, IMPROVEMENTS, REPLACEMENTS, SUBSTITUTIONS, AND ACCESSORIES THERETO AND THEREFOR, ALL AVIONICS, ONBOARD EQUIPMENT, LOOSE EQUIPMENT, MANUALS, DOCUMENTATION AND TECHNICAL PUBLICATIONS, NOW OWNED OR HEREAFTER ACQUIRED, AND ALL RECORDS AND LOGBOOKS (IN WRITTEN FORM OR AS COMPUTER DATA, DISCS OR TAPES, WHETHER NOW EXISTING OR HEREAFTER ACQUIRED OR CREATED, AND WHETHER IN THE POSSESSION OF CUSTOMER OR HELD ON BEHALF OF CUSTOMER BY OTHERS).   Schedule 1
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EX-10.7 8 ex\_152368.htm EXHIBIT 10.7 ex\_152368.htm **Exhibit 10.7**   **CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED.**   **EXECUTION VERSION**   **AMENDMENT****NUMBER FIVE****TO** **AIRCRAFT LEASE****AGREEMENT**     Dated as of June 20, 2019     BETWEEN   **WELLS FARGO TRUST COMPANY, NATIONAL ASSOCIATION** **(f/k/a Wells Fargo Bank** **Northwest,** **National** **Association),** **not in** **its individual capacity,** **but solely as** **owner** **trustee** *as Lessor* AND     **SUN COUNTRY, INC.** **DBA SUN COUNTRY AIRLINES** (formerly known as MN Airlines, LLC) *as Lessee* Concerning:   One (1) Boeing 737-700 (737-73V) Aircraft Manufacturer’s Serial Number 30241 U.S. Registration Number N710SY
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**AMENDMENT NUMBER FIVE TO AIRCRAFT LEASE AGREEMENT** This AMENDMENT NUMBER FIVE TO AIRCRAFT LEASE AGREEMENT (this"Amendment") is dated as of June 20, 2019 and is entered into between WELLS FARGO TRUST COMPANY, NATIONAL ASSOCIATION (f/k/a Wells Fargo Bank Northwest, National Association), not in its individual capacity, but solely as owner trustee ("Lessor") and SUN COUNTRY, INC. DBA SUN COUNTRY AIRLINES (formerly known as MN Airlines, LLC), a corporation incorporated and existing under the laws of Minnesota ("Lessee").   **RECITALS**
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**RECITALS** WHEREAS, C.I.T. Leasing Corporation (“CITLC”) and Lessee have previously entered into that certain Aircraft Lease Agreement dated as of January 14, 2009, as supplemented by that certain Lease Supplement dated as of January 30, 2009, which was recorded as one instrument by the Federal Aviation Administration on February 4, 2009 and assigned Conveyance No. SB003509, and as amended by that certain Amendment Number One to Aircraft Lease Agreement dated as of November 30, 2011, which was recorded by the Federal Aviation Administration on January 6, 2012 and assigned Conveyance No. JB004755, and as further amended by that certain Amendment Number Two to Aircraft Lease Agreement dated as of October 15, 2013, which was recorded by the Federal Aviation Administration on December 11, 2013 and assigned Conveyance No. NW006692, and as further amended by that certain Amendment Number Three to Aircraft Lease Agreement dated as of June 9, 2015, which was recorded by the Federal Aviation Administration on July 9, 2015 and assigned Conveyance No. KT013830, and as further assigned, assumed and amended by that certain Assignment, Assumption and Amendment Agreement dated as of August 22, 2016 among CITLC, as assignor, Lessor, as assignee, and Lessee, which was recorded by the Federal Aviation Administration on August 23, 2016 and assigned Conveyance No. SD009963, and as further amended by that certain Amendment Number Four to Aircraft Lease Agreement dated as of February 23, 2018, recorded by the Federal Aviation Administration on March 21, 2018 and assigned Conveyance No. DV022033 (the "Lease");
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WHEREAS, pursuant to the Lease, Lessee is currently leasing from Lessor one (1) Boeing 737-73V aircraft bearing Manufacturer's serial number 30241 and United States Registration Number N710SY and two (2) CFM International Inc. model CFM56-7B22 (also described in the FAA records as model CFM56-7B20) aircraft engines bearing manufacturer’s serial numbers 889727 and 889728 (as more fully described and defined in the Lease, the "Aircraft"); and   WHEREAS, Lessee and Lessor desire amend certain provisions of the Lease as set forth in this Amendment.   NOW, THEREFORE, in consideration of the mutual covenants herein set forth, Lessor and Lessee hereby agree as follows:     Lease Amendment Number Five Wells Fargo Trust Company, N.A. / Sun Country, Inc. B737-700 / MSN 30241 Page 1
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**AGREEMENT**   | | | | --- | --- | | **1.** | **Definitions.** | “**Return****Modification****Amount**” has the meaning given to such term on Schedule 1 hereto.   Capitalized terms not otherwise defined herein shall have the meanings given to them in the Lease.   | | | | --- | --- | | **2.** | **Amendments to Lease.** | | | | | --- | --- | | 2.1 | The amendments to the Lease set forth in this Amendment shall be deemed effective upon execution of this Amendment. Lessee shall pay to Lessor the Return Modification Amount during the last calendar month of the Term, but in any event not later than the Expiration Date. Lessor and Lessee agree that in the event that Lessee fails to pay the Return Modification Amount in accordance with this Amendment, the revisions agreed to in Clause 2.2 below shall be null and void thus having the effect of restoring Exhibit B to the terms agreed to by the parties prior to the date of this Amendment. |   | | | | --- | --- | | 2.2 | Exhibit B to Aircraft Lease Agreement (Return Condition Requirements) |   | | | | --- | --- | | | Exhibit B shall be amended as follows: |   (a)     GENERAL. Exhibit B, GENERAL section is hereby amended by deleting the following sub-sections in their entirety :
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(a)     GENERAL. Exhibit B, GENERAL section is hereby amended by deleting the following sub-sections in their entirety :   (i)     The text of sub-section (2): “(2) The Aircraft exterior shall be washed and the interior shall be clean. The cockpit shall be repainted if required to eliminate existing stains, excessive wear, and inappropriate markings. Placards shall be replaced if unreadable, missing or not in the English language.”;   (ii)    The text of sub-section (7): “(7) Cockpit windows shall have no crazing or delamination that exceed maintenance manual allowable limits, and passenger compartment windows shall have no crazing that obstructs the view from the windows. All equipment and furnishings in the interior of the Aircraft which are defective, damaged, or excessively worn shall be repaired or replaced by Lessee.”;   (iii)   The text of sub-section (10): “(10) At the end of the Term, Lessee shall obtain an export certificate of airworthiness for the Aircraft and Lessor shall reimburse Lessee at Lessee's Actual Cost for the cost of any modifications required for the Aircraft to comply with the import requirements of such other country.”; and     Lease Amendment Number Five Wells Fargo Trust Company, N.A. / Sun Country, Inc. B737-700 / MSN 30241 Page 2
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(iv)    The text of sub-section (11): “(11) Prior to the Expiration Date, all temporary repairs accomplished during the Term, including repairs using blind fasteners (except to the extent that the use of blind fasteners is considered a permanent repair in accordance with the Airframe Manufacturer's structural repair manual for the Aircraft) and those requiring repetitive inspections or future upgrading, shall be upgraded to a permanent repair and all external doublers (scab patches) installed during the Term shall be replaced with flush repairs, all in accordance with the Manufacturer's maintenance manual, structural repair manual, or other FAA and Airframe Manufacturer approved data, provided, however, such replacement of a doubler shall not be required where installation of such doubler is (i) the only approved repair in accordance with the Manufacturer's maintenance manual, structural repair manual or other FAA approved data, (ii) the result of a Manufacturer recommended service bulletin accomplishment, or (iii) where a flush repair cannot be accomplished due to inaccessibility of the area.”   (b)     PAINT. Exhibit B, PAINT is hereby amended by deleting in its entirety the following text of sub-section (1):
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(i)     “(1) The Aircraft fuselage including radome, wing to body fairings, wheel well doors, vertical stabilizer, and engine cowlings (if previously painted) shall be prepared for repainting in accordance with the Airframe Manufacturer’s recommended procedures, and the fuselage shall be repainted white using a quality paint acceptable to Lessor. All other areas of the Aircraft where paint is peeled, chipped or worn out, including control surfaces shall be restored as necessary to provide a uniform appearance. Preparation for such repainting shall include restoration of aerodynamic sealer in areas requiring aerodynamic sealer due to deterioration or missing sealant. All required placards and markings shall be in the English language and shall be replaced if not in English, or if deteriorated.”   (c)     AIRFRAME. Exhibit B, AIRFRAME is hereby amended and restated in its entirety as follows:   (i)     “(2) Immediately prior to redelivery of the Aircraft to Lessor, the Aircraft shall have no overdue tasks required by the MPD.”   (d)     INTERIOR. Exhibit B, INTERIOR is hereby amended and restated in its entirety as follows:   (i)     “The Aircraft shall be in the same configuration (including, but not limited to, interior seating configuration, galleys and lavatories) as at the time of Lessee’s last revenue flight.”   (e)     INSPECTION. Exhibit B, INSPECTION is hereby deleted in its entirety and restated as follows:   (i)     “The Aircraft is to be returned in serviceable condition with redelivery in Marana, Arizona.”     Lease Amendment Number Five Wells Fargo Trust Company, N.A. / Sun Country, Inc.
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Lease Amendment Number Five Wells Fargo Trust Company, N.A. / Sun Country, Inc. B737-700 / MSN 30241 Page 3
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| | | | --- | --- | | **3.** | **REPRESENTATIONS AND WARRANTIES** |   | | | | --- | --- | | 3.1 | Lessor's Representations and Warranties. Lessor hereby represents and warrants to Lessee as of the date of this Amendment that: |   | | | | | --- | --- | --- | | | 3.1.1. | Lessor (i) is a national banking association organized, validly existing and in good standing under the laws of the United States of America and (ii) has the power and authority to enter into and perform its obligations under this Amendment; |   | | | | | --- | --- | --- | | | 3.1.2. | the execution and delivery by Lessor of this Amendment, the consummation by Lessor of the transactions contemplated herein and compliance with the terms and provisions hereof and thereof are within Lessor's corporate powers, do not and will not result in a violation of Lessor's charter, by-laws or other constitutional documents as currently in effect; |   | | | | | --- | --- | --- | | | 3.1.3. | the Lease, as amended by this Amendment, will constitute the legal, valid and binding and enforceable obligation of Lessor, except as such enforceability may be limited by bankruptcy, insolvency, reorganization and other laws of general application affecting the enforcement of creditors' rights and general principles of equity (regardless of whether such proceeding is considered a proceeding in equity or at law); and |
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| | | | | --- | --- | --- | | | 3.1.4. | Lessor has received every consent, approval or authorization of, and has given every notice to, each Governmental Authority having jurisdiction with respect to the execution, delivery or performance of this Amendment and the performance of the Lease, as amended by this Amendment, and each other Operative Agreement (including all monetary and other obligations hereunder) that is required for Lessor to execute and deliver this Amendment and each other document to which it is a party, and to perform the transactions contemplated hereby and thereby, and each such consent, approval or authorization is valid and effective and has not been revoked. |   | | | | --- | --- | | 3.2 | Lessee's Representations and Warranties. Lessee hereby represents and warrants to Lessor as of the date of this Amendment that: |   | | | | | --- | --- | --- | | | 3.2.1. | Lessee (i) is a corporation duly organized, validly existing and in good standing under the laws of the State of Minnesota, U.S.A. and (ii) has the requisite company power and authority to enter into and perform its obligations under this Amendment; |   | | | | | --- | --- | --- | | | 3.2.2. | the execution and delivery by Lessee of this Amendment, the consummation by Lessee of the transactions contemplated herein and compliance with the terms and provisions hereof and thereof are within Lessee's corporate powers, do not and will not result in a violation of Lessee's charter, by-laws or other constitutional documents as currently in effect; |     Lease Amendment Number Five
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Lease Amendment Number Five Wells Fargo Trust Company, N.A. / Sun Country, Inc. B737-700 / MSN 30241 Page 4

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