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agreement_12.md | | | | |
| --- | --- | --- |
| | 3.2.3. | the Lease, as amended by this Amendment, will constitute the legal, valid and binding and enforceable obligation of Lessee, 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 |
| | | |
| --- | --- | --- |
| | 3.2.4. | Lessee 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 Lessee 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contemplated hereby and thereby, and each such consent, approval or authorization is valid and effective and has not been revoked. |
| | |
| --- | --- |
| **4.** | **No Other Modification.** | | 100 |
agreement_12.md | | | |
| --- | --- |
| **4.** | **No Other Modification.** |
| | |
| --- | --- |
| | Except as specifically provided in this Amendment, all of the terms and conditions of the Lease, including but not limited to all of Lessee's obligations and liabilities set forth therein, remain unmodified and are in full force and effect and the parties hereto hereby ratify the same. On and after the date hereof, each reference in the Lease to "this Lease", "hereunder", "hereof", or words of like import referring to the Lease shall mean and be a reference to the Lease as amended by this Amendment. |
| | |
| --- | --- |
| **5.** | **Miscellaneous.** |
| | |
| --- | --- |
| 5.1 | Governing Law. THIS AMENDMENT SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, U.S.A. APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE WITHOUT REGARD FOR CONFLICT OF LAW PRINCIPLES (OTHER THAN THE PROVISIONS OF SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK). |
| | |
| --- | --- |
| 5.2 | Counterparts. This Amendment may be executed simultaneously in two or more counterparts and by different parties hereto on separate counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. | | 101 |
agreement_12.md | | | |
| --- | --- |
| 5.3 | Successors and Assigns. This Amendment shall be binding on and shall inure to the benefit of Lessee, Lessor and their respective successors and assigns. |
| | |
| --- | --- |
| 5.4 | Entire Agreement. This Amendment (including all Appendices hereto) constitutes the entire agreement of Lessor and Lessee concerning the revisions to the Lease set forth in Section 2 hereof, and any prior or contemporaneous written or oral understandings with regard to the subject matter hereof are superseded hereby in their entirety. |
Lease Amendment Number Five
Wells Fargo Trust Company, N.A. / Sun Country, Inc.
B737-700 / MSN 30241
Page 5 | 102 |
agreement_12.md | | | |
| --- | --- |
| 5.5 | Transaction Costs. Whether or not the transactions contemplated hereby are consummated, each party hereto agrees to pay its own costs and expenses incurred in connection with the preparation, execution and delivery of this Amendment and any other documents delivered in connection herewith, including without limitation the fees, expenses and disbursements of counsel, except as otherwise expressly set forth herein. Lessee and Lessor agree to share 50/50 the costs, including attorneys' fees and disbursements, incurred as legal fees and disbursements for McAfee & Taft, FAA counsel. |
| | |
| --- | --- |
| 5.6 | Time is of the Essence. Time and strict and punctual performance are of the essence with respect to each provision of this Amendment. |
| | |
| --- | --- |
| 5.7 | Further Assurances. Each of Lessor and Lessee hereby confirms for the benefit of the other party that it will promptly and duly execute and deliver any such further documents and assurances and take such further actions as the other party hereto may from time to time reasonably request in order to more effectively carry out the intent and purpose of this Amendment. |
[SIGNATURE PAGE FOLLOWS]
Lease Amendment Number Five
Wells Fargo Trust Company, N.A. / Sun Country, Inc.
B737-700 / MSN 30241
Page 6 | 103 |
agreement_12.md | IN WITNESS WHEREOF, Lessor and Lessee have caused their duly authorized officers to execute and deliver this Amendment Number Five to Aircraft Lease Agreement as of the date first above written.
| | |
| --- | --- |
| SUN COUNTRY, INC. | WELLS FARGO TRUST COMPANY |
| Lessee | NATIONAL ASSOCIATION (f/k/a Wells |
| | Fargo Bank Northwest, National |
| | Association), not in its individual capacity, |
| | but solely as owner trustee |
| | Lessor |
| | |
| By: | By: /s/ Hillary Pavia |
| | |
| Name: | Name: Hillary Pavia |
| | |
| Title: | Title: Vice President |
TO THE EXTENT, IF ANY, THAT THIS AMENDMENT CONSTITUTES CHATTEL PAPER (AS SUCH TERM IS DEFINED IN THE UNIFORM COMMERCIAL CODE AS IN EFFECT IN ANY APPLICABLE JURISDICTION), NO SECURITY INTEREST IN THIS DOCUMENT MAY BE PERFECTED THROUGH THE TRANSFER OR POSSESSION OF ANY ORIGINAL OR COPY HEREOF OTHER THAN THAT MARKED "CHATTEL PAPER ORIGINAL".
Lease Amendment Number Five
Wells Fargo Trust Company, N.A. / Sun Country, Inc.
B737-700 / MSN 30241
Page 7 | 104 |
agreement_12.md | IN WITNESS WHEREOF, Lessor and Lessee have caused their duly authorized officers to execute and deliver this Amendment Number Five to Aircraft Lease Agreement as of the date first above written.
| | |
| --- | --- |
| SUN COUNTRY, INC. | WELLS FARGO TRUST COMPANY |
| Lessee | NATIONAL ASSOCIATION (f/k/a Wells |
| | Fargo Bank Northwest, National |
| | Association), not in its individual capacity, |
| | but solely as owner trustee |
| | Lessor |
| | |
| By: /s/ Jude Bricker | By: |
| | |
| Name: Jude Bricker | Name: |
| | |
| Title: President and CEO | Title: |
TO THE EXTENT, IF ANY, THAT THIS AMENDMENT CONSTITUTES CHATTEL PAPER (AS SUCH TERM IS DEFINE D IN THE UNIFORM COMMERCIAL CODE AS IN EFFECT IN ANY APPLICABLE JURISDICTION), NO SECURITY INTEREST IN THIS DOCUMENT MAY BE PERFECTED THROUGH THE TRANSFER OR POSSESSION OF ANY ORIGINAL OR COPY HEREOF OTHER THAN THAT MARKED "CHATTEL PAPER ORIGINAL".
Lease Amendment Number Five
Wells Fargo Trust Company, N.A. / Sun Country, Inc.
B737-700 / MSN 30241
Page 8 | 105 |
agreement_12.md | **Schedule 1 – Confidential Terms**
“Return Modification Amount” means an amount equal to [ ] Dollars (US$[ ]) which constitutes the “Buyout Offer” defined in Amendment Number Two to the Aircraft Lease Agreement.
Lease Amendment Number Five
Wells Fargo Trust Company, N.A. / Sun Country, Inc.
B737-700 / MSN 30241
Page 9 | 106 |
agreement_13.md | EX-99
2
f20061115planeleaseexh99none.htm
NON-EXCLUSIVE AIRCRAFT LEASE AGREEMENT
**NON-EXCLUSIVE AIRCRAFT LEASE AGREEMENT**
(Part 91 Operations)
Dated as of the 13th day of November, 2006,
by and between
**JRC Citation, LLC**,
as Lessor,
and
**EGL Eagle Global Logistics, L.P.**,
as Lessee,
concerning one 2006 Cessna Citation X aircraft bearing
U.S. registration number N712KC
and
manufacturer’s serial number 750-0255
**INSTRUCTIONS FOR COMPLIANCE WITH**
**“TRUTH IN LEASING” REQUIREMENTS UNDER FAR § 91.23**
***Within 24 hours after execution of this Aircraft Lease Agreement:***
mail a copy of the executed document, without Schedule A, to the
following address via certified mail, return receipt requested:
Federal Aviation Administration
Aircraft Registration Branch
ATTN: Technical Section
P.O. Box 25724
Oklahoma City, Oklahoma 73125
***At least 48 hours prior to the first flight to be conducted under this Agreement:***
deliver a completed Schedule B containing the departure airport and proposed
time of departure of said first flight by facsimile to the Flight Standards
District Office located nearest the departure airport.
***Carry a copy of this Aircraft Lease Agreement in the aircraft at all times.***
\* \* \*
***Schedule A contains only economic rental data and is***
***intentionally omitted for FAA submission purposes.*** | 107 |
agreement_13.md | This **NON-EXCLUSIVE AIRCRAFT LEASE AGREEMENT** (the “Agreement”) is entered into as of this 13th day of November, 2006 (the “Effective Date”), by and between **JRC Citation, LLC**, a Delaware limited liability company (“Lessor”), and **EGL Eagle Global Logistics, L.P.**, a Delaware limited partnership (“Lessee”).
**W I T N E S S E T H :**
**WHEREAS**, title to the Aircraft described and referred to herein is held by Lessor;
**WHEREAS**, Lessee desires to lease from the Lessor, and Lessor desires to lease to Lessee, the Aircraft, without crew, upon and subject to the terms and conditions of this Agreement;
**WHEREAS**, Lessee intends to operate the Aircraft under Part 91 of the FAR within the scope of and incidental to its own business; and
**WHEREAS**, during the term of this Agreement, the Aircraft may be subject to concurrent leases to one (1) or more Additional Lessee(s).
**NOW, THEREFORE**, in consideration of the mutual promises herein contained and other good and valid consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
**SECTION 1.**
**DEFINITIONS**
1.1
The following terms shall have the following meanings for all purposes of this Agreement:
**“Additional Lessee”** means any other person or entity possessing a non-exclusive leasehold interest in the Aircraft. | 108 |
agreement_13.md | **“Additional Lessee”** means any other person or entity possessing a non-exclusive leasehold interest in the Aircraft.
**“Aircraft”** means the Airframe, the Engines, the Parts, and the Aircraft Documents. The Engines shall be deemed part of the “Aircraft” whether or not from time to time attached to the Airframe or removed from the Airframe.
**“Aircraft Documents”** means all flight records, maintenance records, historical records, modification records, overhaul records, manuals, logbooks, authorizations, drawings and data relating to the Airframe, any Engine, or any Part, or that are required by Applicable Law to be created or maintained with respect to the maintenance and/or operation of the Aircraft.
**“Airframe”** means that certain 2006 Cessna Citation X aircraft bearing U.S. registration number N712KC, and manufacturer’s serial number 750-0255, together with any and all Parts (including, but not limited to, landing gear and auxiliary power units but excluding Engines or engines) so long as such Parts shall be either incorporated or installed in or attached to the Airframe.
**“Applicable Law”** means, without limitation, all applicable laws, treaties, international agreements, decisions and orders of any court, arbitration or governmental agency or authority and rules, regulations, orders, directives, licenses and permits of any governmental body, instrumentality, agency or authority, including, without limitation, the FAR and 49 U.S.C. § 41101, *et seq*., as amended.
**“DOT”** means the United States Department of Transportation or any successor agency. | 109 |
agreement_13.md | **“DOT”** means the United States Department of Transportation or any successor agency.
**“Engines”** means two (2) Allison AE 3007C1 engines bearing manufacturer’s serial numbers CAE3330528 and CAE3330511, together with any and all Parts so long as the same shall be either incorporated or installed in or attached to such Engine. Any engine which may be, from time to time, substituted for an Engine shall be deemed to be an Engine and subject to this Agreement for so long as it remains attached to the Airframe.
**“FAA”** means the Federal Aviation Administration or any successor agency.
1 | 110 |
agreement_13.md | **“FAR”** means collectively the Aeronautics Regulations of the FAA and the DOT, as codified at Title 14, Parts 1 to 399 of the United States Code of Federal Regulations.
**“FSDO Notice”** means an FSDO Notification Letter in the form of Schedule B attached hereto.
**“Flight Hour”** means one (1) hour of use of the Aircraft in flight operations, as recorded on the Aircraft hour meter and measured from the time the Aircraft takes off at the beginning of a flight, to the time the Aircraft lands at the end of a flight in one-tenth (1/10th) of an hour increments.
**“Lender”** means Wachovia Financial Services, Inc.
**“Lien”** means any mortgage, security interest, lease or other charge or encumbrance or claim or right of others, including, without limitation, rights of others under any airframe or engine interchange or pooling agreement, except for mechanics liens to be discharged in the ordinary course of business.
**“Mortgage”** means Aircraft Security Agreement executed by and among Lender as lender, Lessor as debtor, and James R. Crane as borrower as of the 1st day of July, 2006.
**“Operating Base”** means Houston Hobby Airport, Houston, Texas.
**“Operational Control”** has the same meaning given the term in Section 1.1 of the FAR. | 111 |
agreement_13.md | **“Operational Control”** has the same meaning given the term in Section 1.1 of the FAR.
**“Parts”** means all appliances, components, parts, instruments, appurtenances, accessories, furnishings or other equipment of whatever nature (other than complete Engines or engines) which may from time to time be incorporated or installed in or attached to the Airframe or any Engine and includes replacement parts.
**“Pilot in Command”** has the same meaning given the term in Section 1.1 of the FAR.
**“Rent Payment Date”** means the 15th day of each calendar month.
**“Taxes**” meansall taxes of every kind (excluding any tax measured by or assessed against a taxpayer’s income, including, without limitation, any income tax, gross income tax, net income tax, or capital gains tax) assessed or levied by any federal, state, county, local, airport, district, foreign, or other governmental authority, including, without limitation, sales taxes, use taxes, retailer taxes, federal air transportation excise taxes, federal aviation fuel excise taxes, and other similar duties, fees, and excise taxes.
**“Term**” means the entire period from the Effective Date to the date this Agreement is terminated pursuant to Section 3.1.
**SECTION 2.**
**LEASE AND DELIVERY OF THE AIRCRAFT**
2.1
**Lease**. Lessor agrees to lease to Lessee, and Lessee agrees to lease from Lessor, the Aircraft, on the terms and conditions of this Agreement.
2.2 | 112 |
agreement_13.md | 2.2
**Delivery**. The Aircraft shall be delivered to the Lessee on a mutually agreed date at the Operating Base, or such other location as the parties may mutually agree, and “AS IS,” “WHERE IS,” AND SUBJECT TO EACH AND EVERY DISCLAIMER OF WARRANTY AND REPRESENTATION AS SET FORTH IN SECTION 4 HEREOF. Lessor shall not be liable for delay or failure to furnish the Aircraft pursuant to this Agreement when such failure is caused by government regulation or authority, mechanical difficulty, war, civil commotion, strikes or labor disputes, weather conditions, or acts of God.
2.3
**Non-Exclusivity**. Lessee and Lessor acknowledge that the Aircraft is leased to Lessee on a non-exclusive basis, and that during the Term the Aircraft may be otherwise subject to lease to other lessees of Lessor. During any period during which another lessee of Lessor or any other person or entity leasing an interest in the Aircraft has scheduled use of the Aircraft, Lessee’s leasehold rights to possession of the Aircraft under
2 | 113 |
agreement_13.md | this Agreement shall temporarily abate, but all other provisions of this Agreement shall nevertheless continue in full force and effect.
2.4
**FSDO Notice**. At least 48 hours prior to the first flight to be conducted under this Agreement, Lessee shall complete the FSDO Notice attached hereto as Schedule B and deliver the completed FSDO Notice by facsimile to the FAA Flight Standards District Office located nearest to the departure airport of said first flight.
**SECTION 3. TERM, SCHEDULING, AND RENT**
3.1
**Term**. This Agreement shall become effective on the Effective Date, and shall continue in effect for a period of one (1) year, unless terminated sooner pursuant to the express provisions herein contained. At the end of the first one (1) year period or any subsequent one (1) year period, this Agreement shall automatically be renewed for an additional one (1) year period. Each party shall have the right to terminate this Agreement without cause on thirty (30) days written notice to the other party.
3.2
**Minimum Usage by Lessee**. Nothing contained herein shall obligate Lessee to any minimum usage of the Aircraft, it being understood and agreed that Lessee’s usage shall be on an “as-needed” basis.
3.3 | 114 |
agreement_13.md | 3.3
**Rent**. Lessee shall pay rent in arrears in an amount equal to the Hourly Rent specified in Schedule A attached hereto for each Flight Hour of use of the Aircraft by Lessee. All rent accrued during any calendar month shall be payable in arrears on the Rent Payment Date in the immediately succeeding calendar month without further demand or invoice. All rent shall be paid to the Lessor in immediately available U.S. funds and in form and manner as the Lessor in its sole discretion may instruct Lessee from time to time.
3.4
**Taxes**. Neither the rent nor any other payments to be made by Lessee under this Agreement includes the amount of any Taxes which may be assessed or levied by any taxing jurisdictions as a result of the lease of the Aircraft to Lessee, or the use of the Aircraft by Lessee, or the provision of a taxable transportation service by Lessee using the Aircraft. Lessee shall be responsible for, shall indemnify and hold harmless Lessor against, and Lessee shall pay when due that portion of all such Taxes attributable to the lease of the Aircraft to, and/or the use of the Aircraft by, Lessee. Lessee shall have the right to dispute or contest in good faith and at Lessee’s sole expense the amount of any Taxes assessed or imposed directly against Lessee. During the period that any such Taxes are being disputed or contested in good faith, payment of such Taxes in accordance with the terms of this Agreement may be delayed until a final determination of the amount due has been made.
**SECTION 4.**
**REPRESENTATIONS AND WARRANTIES**
4.1 | 115 |
agreement_13.md | **SECTION 4.**
**REPRESENTATIONS AND WARRANTIES**
4.1
**Representations and Warranties of Lessee**. Lessee represents and warrants as of the date hereof and during the entire Term hereof as follows:
4.1.1
Lessee is a validly organized limited partnership under the laws of the State of Delaware, and the person executing on behalf of Lessee has full power and authority to execute this Agreement on behalf of Lessee and by such execution shall bind Lessee under this Agreement.
4.1.2
No action, suit, or proceeding is currently pending or threatened against Lessee that shall in any material way affect Lessee’s financial status as of the date thereof, or impair the execution, delivery, or performance by Lessee of this Agreement.
4.1.3
The execution and delivery of this Agreement by Lessee and the performance of its obligations hereunder have been duly authorized by all necessary corporate or limited liability company action, and do not conflict with any provision of Lessee’s articles of organization, bylaws, operating agreement, any governmental regulations, or any other agreements that Lessee may now have with other parties.
3 | 116 |
agreement_13.md | 4.1.4
Lessee is not subject to any restriction, which with or without the giving of notice, the passage of time, or both, prohibits or would be violated by or be in conflict with this Agreement.
4.1.5
This Agreement constitutes the legal, valid and binding obligations of Lessee, and is enforceable against Lessee in accordance with the terms herein contained.
4.1.6
Lessee will make reasonable efforts to ensure that the Aircraft is not operated in any unsafe manner or contrary to any manual or instructions for the Aircraft or in violation of the terms or conditions of any insurance policy covering the Aircraft or any Applicable Law.
4.1.7
All pilots who operate the Aircraft for Lessee’s flights shall have at least the minimum total pilot hours required by any policy of insurance covering the Aircraft and will meet or exceed all requirements under any policy of insurance covering the Aircraft. Lessor shall inform Lessee of all such requirements.
4.2
**Representations and Warranties of Lessor.** Lessor hereby represents and warrants as follows:
4.2.1
Lessor is a validly organized corporation or limited liability company under the laws of the State of Delaware, and the person executing on behalf of Lessor has full power and authority to execute this Agreement on behalf of Lessor and by such execution shall bind Lessor under this Agreement.
4.2.2
No action, suit, or proceeding is currently pending or threatened against Lessor which shall in any material way affect Lessor’s financial status as of the date thereof, or impair the execution, delivery, or performance by Lessor of this Agreement. | 117 |
agreement_13.md | 4.2.3
The execution and delivery of this Agreement by Lessor and the performance of its obligations hereunder have been duly authorized by all necessary corporate or limited liability company action, and do not conflict with any provision of Lessor’s articles of organization, bylaws, operating agreement, any governmental regulations, or any other agreements that Lessee may now have with other parties.
4.2.4
Lessor is not subject to any restriction, which with or without the giving of notice, the passage of time, or both, prohibits or would be violated by or be in conflict with this Agreement.
4.2.5
This Agreement constitutes the legal, valid and binding obligations of Lessor, and is enforceable against Lessor in accordance with the terms herein contained.
4.3 | 118 |
agreement_13.md | 4.3
**DISCLAIMER OF WARRANTIES**. THE AIRCRAFT IS BEING LEASED BY THE LESSOR TO THE LESSEE HEREUNDER ON A COMPLETELY “AS IS,” “WHERE IS,” BASIS, WHICH IS ACKNOWLEDGED AND AGREED TO BY THE LESSEE. THE WARRANTIES AND REPRESENTATIONS SET FORTH IN THIS SECTION 4 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, AND LESSOR HAS NOT MADE AND SHALL NOT BE CONSIDERED OR DEEMED TO HAVE MADE (WHETHER BY VIRTUE OF HAVING LEASED THE AIRCRAFT UNDER THIS AGREEMENT, OR HAVING ACQUIRED THE AIRCRAFT, OR HAVING DONE OR FAILED TO DO ANY ACT, OR HAVING ACQUIRED OR FAILED TO ACQUIRE ANY STATUS UNDER OR IN RELATION TO THIS AGREEMENT OR OTHERWISE) ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE AIRCRAFT OR TO ANY PART THEREOF, AND SPECIFICALLY, WITHOUT LIMITATION, IN THIS RESPECT DISCLAIMS ALL REPRESENTATIONS AND/OR WARRANTIES AS TO THE AIRWORTHINESS, VALUE, CONDITION, DESIGN, MERCHANTABILITY, COMPLIANCE WITH SPECIFICATIONS, CONSTRUCTION AND CONDITION OF THE AIRCRAFT OPERATION, OR FITNESS FOR A PARTICULAR USE OF THE AIRCRAFT AND AS TO THE ABSENCE OF LATENT AND OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE, AS TO THE ABSENCE OF ANY INFRINGEMENT OR THE LIKE, HEREUNDER OF ANY PATENT, TRADEMARK OR COPYRIGHT, AS TO THE ABSENCE OF OBLIGATIONS BASED ON STRICT LIABILITY IN TORT, OR AS TO
4 | 119 |
agreement_13.md | THE QUALITY OF THE MATERIAL OR WORKMANSHIP OF THE AIRCRAFT OR ANY PART THEREOF OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED (INCLUDING ANY IMPLIED WARRANTY ARISING FROM A COURSE OF PERFORMANCE OR DEALING OR USAGE OF TRADE), WITH RESPECT TO THE AIRCRAFT OR ANY PART THEREOF. THE LESSEE HEREBY WAIVES, RELEASES, DISCLAIMS AND RENOUNCES ALL EXPECTATION OF OR RELIANCE UPON ANY SUCH AND OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF LESSOR AND RIGHTS, CLAIMS AND REMEDIES OF THE LESSEE AGAINST LESSOR, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO (I) ANY IMPLIED WARRANTY OF MERCHANTABILITY OF FITNESS FOR ANY PARTICULAR USE, (II) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE, (III) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF LESSOR, ACTUAL OR IMPUTED, AND (IV) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OF OR DAMAGE TO THE AIRCRAFT, FOR LOSS OF USE, REVENUE OR PROFIT WITH RESPECT TO THE AIRCRAFT, OR FOR ANY OTHER DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
**SECTION 5.**
**REGISTRATION, USE, OPERATION, MAINTENANCE AND POSSESSION**
5.1 | 120 |
agreement_13.md | **REGISTRATION, USE, OPERATION, MAINTENANCE AND POSSESSION**
5.1
**Title and Registration**. Lessee acknowledges that Lessor owns all legal, beneficial, and equitable title to the Aircraft, and that said title shall remain vested in Lessor during the Term hereof. Lessee shall undertake, to the extent permitted by Applicable Law, to do all such further acts, deeds, assurances or things as may, in the opinion of the Lessor and at Lessor’s expense, be necessary or desirable in order to protect or preserve Lessor’s title to the Aircraft.
5.2 | 121 |
agreement_13.md | **Use and Operation**. Lessee shall operate the Aircraft in accordance with the provisions of Part 91 of the FAR and shall not operate the Aircraft in commercial service, as a common carrier, or otherwise for compensation or hire except to the extent permitted under Sections 91.321 and 91.501 of the FAR, if applicable. Lessee shall be solely and exclusively responsible for the use, operation and control of the Aircraft at all times during which the Aircraft is in Lessee’s possession during the Term. Lessee agrees not to operate or locate the Airframe or any Engine, or permit the Airframe or any Engine to be operated or located, in any area excluded from coverage by any insurance policy in effect or required to be maintained hereunder with respect to the Airframe or Engines, or in any war zone. Lessor shall keep Lessee informed of changes in the requirements of any such insurance policy. Lessee agrees not to operate the Airframe or any Engine or permit the Airframe or any Engine to | 122 |
agreement_13.md | operate the Airframe or any Engine or permit the Airframe or any Engine to be operated during the Term except in operations for which Lessee is duly authorized, or to use or permit the Aircraft to be used for a purpose for which the Aircraft is not designed or reasonably suitable. Lessee will not knowingly permit the Airframe or any Engine to be maintained, used or operated during the Term in violation of any Applicable Law, or contrary to any manufacturer’s operating manuals or instructions. Lessee shall not knowingly permit the Aircraft to be used for the carriage of any persons or property prohibited by Applicable Law, nor shall Lessee permit the Aircraft to be used during the existence of any known defect except in accordance with the FAR. Lessee may carry on the Aircraft on all flights under this Agreement such passengers, baggage, and cargo as Lessee in its sole but reasonable discretion shall determine; provided, however, that the number of passengers on any flight shall in no event | 123 |
agreement_13.md | provided, however, that the number of passengers on any flight shall in no event exceed the number of seats legally available in the Aircraft, and the total load carried on any flight, including passengers, crew, baggage, and fuel and oil in such quantities as the Pilot in Command shall determine to be required, shall not exceed the legally permissible maximum load for the Aircraft. Lessee will abide by and conform to, be responsible for causing and cause others to abide by and conform to, all Applicable Laws now existing or hereafter enacted, that control or in any way affect the operation, use, maintenance, or occupancy of the Aircraft, or the use of any airport by the Aircraft. | 124 |
agreement_13.md | 5.3
**Aircraft Leased without Services**. The Aircraft is leased by Lessor to Lessee hereunder without any additional services of any kind, and Lessee shall obtain or supply all services and supplies necessary to the operation, maintenance, and storage of the Aircraft in connection with Lessee’s use of the Aircraft. Without limiting the generality of the foregoing, Lessee shall:
5 | 125 |
agreement_13.md | 5.3.1
obtain all fuel, oil, lubricants, and other services and supplies required for Lessee’s operations of the Aircraft;
5.3.2
pay the fixed hourly cost of any maintenance service plans that may be in effect with respect to the Aircraft that become due and payable as a result of Lessee’s operations of the Aircraft;
5.3.3
cause the Aircraft to be maintained, in a good and airworthy operating condition and in compliance with all applicable FAR and the Aircraft Operating Manual;
5.3.4
ensure that all mechanics assigned by or on behalf of Lessee to the maintenance of the Aircraft are competent with respect to the type of aircraft, and fully familiar with applicable maintenance and preventative repair programs for the Aircraft’s specific type;
5.3.5
in connection with Lessee’s use of the Aircraft, store the Aircraft when not in use in an appropriate and adequate indoor facility at the Operating Base;
5.3.6
obtain the services of pilots for all of Lessee’s operations of the Aircraft;
5.3.7
ensure that all pilots serving on any flight conducted by Lessee possess current and valid Airline Transport Pilot and First Class Medical Certificates issued by the FAA, and are fully competent, trained, experienced, and qualified in accordance with Applicable Law and all insurance policies covering the Aircraft;
5.3.8
cause to be maintained and preserved, in the English language, all Aircraft Documents in a complete, accurate, and up-to-date manner.
5.4
**Operational Control**.
5.4.1 | 126 |
agreement_13.md | 5.4
**Operational Control**.
5.4.1
**Lessee’s Flights**. Lessee shall exercise Operational Control of the Aircraft during all flight operations conducted by Lessee. Further, at all times while the Aircraft is in the possession of Lessee, Lessee shall have exclusive possession, command, and control of the Aircraft, and the pilots of any flight by Lessee shall be under the exclusive command of Lessee. The parties acknowledge and agree that no Additional Lessee shall have any right or obligation to exercise Operational Control of the Aircraft in connection with any flight conducted by Lessee.
5.4.2
**Additional Lessee’s Flights**. An Additional Lessee shall exercise Operational Control of the Aircraft during all flight operations conducted by such Additional Lessee. Further, at all times while the Aircraft is in the possession of any Additional Lessee, such Additional Lessee shall have exclusive possession, command, and control of the Aircraft, and the pilots of any such flight by such Additional Lessee shall be under the exclusive command of such Additional Lessee. The parties acknowledge and agree that Lessee shall have no right or obligation to exercise Operational Control of the Aircraft in connection with any flight conducted by any Additional Lessee.
5.5 | 127 |
agreement_13.md | 5.5
**Authority of Pilot in Command**. Notwithstanding that Lessee shall have Operational Control of the Aircraft during any flight conducted by Lessee, the parties acknowledge that pursuant to Section 91.3 of the FAR, the Pilot in Command of such flight is responsible for, and is obligated and entitled to exercise final authority over, the safe operation of the flight, and the parties agree that the Pilot in Command may, in the exercise of such authority, refuse to commence such flight, terminate such flight, or take any other flight-related action that, in the judgment of the Pilot in Command, is required to ensure the safety of the Aircraft, the flight crew, the passengers, and any other persons and/or property.
5.6
**Right to Inspect**. Lessor and/or Lessor’s agents shall have the right to inspect the Aircraft or the Aircraft Documents at any reasonable time, upon giving Lessee reasonable notice, to ascertain the condition of the Aircraft and to satisfy Lessor that the Aircraft is being properly repaired and maintained in accordance with the requirements of this Agreement. All required repairs shall be performed as soon as practicable after such inspection.
6 | 128 |
agreement_13.md | 5.7
**Modification of Aircraft**. Lessee shall not make or permit to be made any modification, alteration, improvement, or addition to the Aircraft without the express written consent of Lessor, except for those modifications, alterations, improvements, or additions that are necessary to comply with any applicable Airworthiness Directive or mandatory manufacturer’s service bulletin.
5.8
**Fines, Penalties, and Forfeitures**. Lessee shall be solely responsible for any fines, penalties, or forfeitures relating in any manner to the operation, maintenance, or use of the Aircraft by Lessee under this Agreement while in Lessee’s possession for valid business reasons.
**SECTION 6. RETURN OF AIRCRAFT**
6.1
**Return**. On the last day of the Term or the date of earlier termination hereof, Lessee shall return the Aircraft to Lessor by delivering the same to Lessor at the Operating Base, fully equipped with all Engines and Parts installed thereon.
6.2
**Condition of Aircraft**. The Aircraft at the time of its return to Lessor, shall have, and be in compliance with, a current valid certificate of airworthiness issued by the FAA, and shall be airworthy according to manufacturer’s specifications and FAA regulations, shall have been maintained and repaired in accordance with the provisions of this Agreement, and shall be in the same condition as it was in when Lessee took possession on the Effective Date of this Agreement, ordinary wear and tear excepted.
6.3 | 129 |
agreement_13.md | 6.3
**Aircraft Documents**. Lessee shall return or cause to be returned to Lessor, at the time the Aircraft is returned to Lessor, all of the Aircraft Documents, updated and maintained by Lessee through the date of return of the Aircraft.
**SECTION 7. LIENS**
7.1
**Lessee Liens**. Lessee shall ensure that no Liens are created or placed against the Aircraft by Lessee or third-parties as a result of Lessee’s actions. Lessee shall notify Lessor promptly upon learning of any Liens not permitted by these terms. Lessee shall, at its own cost and expense, take all such actions as may be necessary to discharge and satisfy in full any such Lien promptly after the same becomes known to it.
7.2
**Subordination**. This Agreement is and at all times shall remain subordinate in all respects to the Lien granted to Lender pursuant to the Mortgage encumbering the Aircraft. Lender shall have the right at all times notwithstanding this Agreement to enforce the terms and provisions of the Mortgage, including, without limitation, repossession of the Aircraft.
**SECTION 8. INSURANCE**
8.1
**Liability**. Lessor shall maintain, or cause to be maintained, bodily injury and property damage, liability insurance in an amount no less than Five Hundred Million United States Dollars (US$500,000,000.00) Combined Single Limit. Said policy shall be an occurrence policy naming Lessee and any aircraft pilot and management services provider retained by Lessee as Additional Insureds.
8.2 | 130 |
agreement_13.md | 8.2
**Hull**. Lessor shall maintain, or cause to be maintained, all risks aircraft hull insurance in the amount of Twenty Million United States Dollars (US$20,000,000.00), and such insurance shall name Lender and Lessor as loss payees as their interests may appear.
8.3
**Insurance Certificates**. Lessor will provide Lessee with a Certificate of Insurance upon execution of this Agreement and at any time thereafter as Lessee may reasonably request.
8.4
**Insurance Companies.** Each insurance policy required under this Section 8 shall be issued by a company or companies who are qualified to do business in the United States and who (i) will submit to the jurisdiction of any competent state or federal court in the United States with regard to any dispute arising
7 | 131 |
agreement_13.md | out of the policy of insurance or concerning the parties herein; and (ii) will respond to any claim or judgment against Lessor in any competent state or federal court in the United States or its territories.
**SECTION 9. DEFAULTS AND REMEDIES**
9.1
Upon the occurrence of any failure of Lessee to duly observe or perform any of its obligations hereunder, and at any time thereafter so long as the same shall be continuing, Lessor may, at its option, declare in writing to the Lessee that this Agreement is in default; and at any time thereafter, so long as Lessee shall not have remedied the outstanding default, Lessor may terminate this Agreement.
**SECTION 10. NOTICES**
10.1
All communications, declarations, demands, consents, directions, approvals, instructions, requests and notices required or permitted by this Agreement shall be in writing and shall be deemed to have been duly given or made when delivered personally or transmitted electronically by e-mail or facsimile, receipt acknowledged, or in the case of documented overnight delivery service or registered or certified mail, return receipt requested, delivery charge or postage prepaid, on the date shown on the receipt therefor, in each case at the address set forth below:
**If to Lessor:**
JRC Citation, LLC
Tel:
281-618-3274
15350 Vickery Drive
Fax:
281-618-3269
Houston, TX 77032
Attn: Margaret Barradas
**If to Lessee:**
EGL Eagle Global Logistics, L.P.
Tel:
281-618-3100 | 132 |
agreement_13.md | **If to Lessee:**
EGL Eagle Global Logistics, L.P.
Tel:
281-618-3100
15350 Vickery Drive
Fax:
281-618-3442
Houston, TX 77032
Attn: CFO and General Counsel
**SECTION 11. EVENT OF LOSS AND INDEMNIFICATION**
11.1
**Notification of Event of Loss.**In the event any damage to or destruction of or any whole or partial loss of the Aircraft while in possession of Lessee, including, without limitation, any loss resulting from the theft, condemnation, confiscation or seizure of, or requisition of title to or use of, the Aircraft by private persons or by any governmental or purported governmental authority, Lessee shall immediately:
11.1.1
report the event of loss to Lessor, the insurance company or companies, and to any and all applicable governmental agencies; and
11.1.2
furnish such information and execute such documents as may be required and necessary to collect the proceeds from any insurance policies.
11.2 | 133 |
agreement_13.md | 11.2
**Repair or Termination**. In the event the Aircraft is partially destroyed or damaged, Lessor shall have the option, in its sole discretion, to either (i) fully repair the Aircraft in order that it shall be placed in at least as good condition as it was prior to such partial destruction or damage; or (ii) terminate this Agreement. Within five (5) days after the date of such partial destruction or damage, Lessor shall give written notice to Lessee specifying whether Lessor has elected to fully repair the Aircraft or to terminate this Agreement, which termination shall be effective immediately upon such written notice from Lessor to Lessee setting forth Lessor’s election to so terminate this Agreement.
11.3
**Indemnification**. Lessee hereby releases, and shall defend, indemnify and hold harmless Lessor and Lessor’s shareholders, members, directors, officers, managers, employees, successors and assigns, from and against, any and all claims, damages, losses, liabilities, demands, suits, judgments, causes of action, civil and criminal legal proceedings, penalties, fines, and other sanctions, and any attorneys’ fees and other reasonable costs and expenses, directly or indirectly arising from Lessee’s operation, maintenance, storage, or other use of the Aircraft.
8 | 134 |
agreement_13.md | **SECTION 12. MISCELLANEOUS**
12.1
**Entire Agreement.**This Agreement, and all terms, conditions, warranties, and representations herein, are for the sole and exclusive benefit of the signatories hereto. This Agreement constitutes the entire agreement of the parties as of its Effective Date and supersedes all prior or independent, oral or written agreements, understandings, statements, representations, commitments, promises, and warranties made with respect to the subject matter of this Agreement.
12.2
**Other Transactions.**Except as specifically provided in this Agreement, none of the provisions of this Agreement, nor any oral or written statements, representations, commitments, promises, or warranties made with respect to the subject matter of this Agreement shall be construed or relied upon by any party as the basis of, consideration for, or inducement to engage in, any separate agreement, transaction or commitment for any purpose whatsoever.
12.3
**Prohibited and Unenforceable Provisions.**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 without invalidating the remaining provisions hereof, and any such prohibitions or unenforceability in any jurisdiction. To the extent permitted by Applicable Law, each of Lessor and Lessee hereby waives any provision of Applicable Law that renders any provision hereof prohibited or unenforceable in any respect.
12.4 | 135 |
agreement_13.md | 12.4
**Enforcement.**This Agreement, including all agreements, covenants, representations and warranties, shall be binding upon and inure to the benefit of, and may be enforced by Lessor, Lessee, and each of their agents, servants and personal representatives.
12.5
**Headings.**The section and subsection headings in this Agreement are for convenience of reference only and shall not modify, define, expand, or limit any of the terms or provisions hereof.
12.6
**Counterparts.**This Agreement may be executed by the parties hereto in two (2) separate counterparts, each of which when so executed and delivered shall be an original, and both of which shall together constitute but one and the same instrument.
12.7
**Amendments.**No term or provision of this Agreement may be amended, changed, waived, discharged, or terminated orally, but only by an instrument in writing signed by Lessor and Lessee.
12.8
**No Waiver.**No delay or omission in the exercise or enforcement or any right or remedy hereunder by either party shall be construed as a waiver of such right or remedy. All remedies, rights, undertakings, obligations, and agreements contained herein shall be cumulative and not mutually exclusive, and in addition to all other rights and remedies which either party possesses at law or in equity.
12.9
**No Assignments.**Neither party may assign its rights or obligations under this Agreement without the prior written permission of the other.
12.10 | 136 |
agreement_13.md | 12.10
**Governing Law.** This Agreement has been negotiated and delivered in the State of Texas and shall in all respects be governed by, and construed in accordance with, the laws of the State of Texas, including all matters of construction, validity and performance, without giving effect to its conflict of laws provisions.
12.11
**Jurisdiction and Venue**. Exclusive jurisdiction and venue over any and all disputes between the parties arising under this Agreement shall be in, and for such purpose each party hereby submits to the jurisdiction of, the state and federal courts serving the State of Texas.
S**ECTION 13. TRUTH IN LEASING**
13.1
TRUTH IN LEASING STATEMENT UNDER SECTION 91.23 OF THE FAR’s.
9 | 137 |
agreement_13.md | WITHIN THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THIS AGREEMENT, EXCEPT TO THE EXTENT THE AIRCRAFT IS LESS THAN TWELVE (12) MONTHS OLD, THE AIRCRAFT HAS BEEN INSPECTED AND MAINTAINED AND IN ACCORDANCE WITH THE FOLLOWING PROVISIONS OF THE FAR:
CHECK ONE:
[ ]
91.409 (f) (1):
A continuous airworthiness inspection program that is part of a continuous airworthiness maintenance program currently in use by a person holding an air carrier operating certificate or an operating certificate issued under FAR Part 121, 127, or 135 and operating that make and model aircraft under FAR Part 121 or operating that make and model under FAR Part 135 and maintaining it under FAR 135.411(a)(2).
[ ]
91.409 (f) (2):
An approved aircraft inspection program approved under FAR 135.419 and currently in use by a person holding an operating certificate issued under FAR Part 135.
[ ]
91.409 (f) (3):
A current inspection program recommended by the manufacturer.
[ ]
91.409 (f) (4):
Any other inspection program established by the registered owner or operator of the Aircraft and approved by the Administrator of the Federal Aviation Administration in accordance with FAR 91.409 (g).
THE PARTIES HERETO CERTIFY THAT DURING THE TERM OF THIS AGREEMENT AND FOR OPERATIONS CONDUCTED HEREUNDER, THE AIRCRAFT WILL BE MAINTAINED AND INSPECTED BY LESSEE IN ACCORDANCE WITH THE PROVISIONS OF FAR: | 138 |
agreement_13.md | CHECK ONE:
[ ] 91.409 (f) (1) [ ] 91.409 (f) (2) [ ] 91.409 (f) (3) [ ] 91.409 (f) (4)
LESSEE ACKNOWLEDGES THAT WHEN IT OPERATES THE AIRCRAFT UNDER THIS AGREEMENT, IT SHALL BE KNOWN AS, CONSIDERED, AND IN FACT WILL BE THE OPERATOR OF SUCH AIRCRAFT. EACH PARTY HERETO CERTIFIES THAT IT UNDERSTANDS THE EXTENT OF ITS RESPONSIBILITIES, SET FORTH HEREIN, FOR COMPLIANCE WITH APPLICABLE FEDERAL AVIATION REGULATIONS.
AN EXPLANATION OF FACTORS BEARING ON OPERATIONAL CONTROL AND PERTINENT FEDERAL AVIATION REGULATIONS CAN BE OBTAINED FROM THE NEAREST FEDERAL AVIATION ADMINISTRATION FLIGHT STANDARDS DISTRICT OFFICE.
THE PARTIES HERETO CERTIFY THAT A TRUE COPY OF THIS AGREEMENT SHALL BE CARRIED ON THE AIRCRAFT AT ALL TIMES, AND SHALL BE MADE AVAILABLE FOR INSPECTION UPON REQUEST BY AN APPROPRIATELY CONSTITUTED IDENTIFIED REPRESENTATIVE OF THE ADMINISTRATOR OF THE FAA.
\* \* \* ***Signature Page Follows*** \* \* \*
10 | 139 |
agreement_13.md | **IN WITNESS WHEREOF**, the Lessor and the Lessee have each caused this **Non-Exclusive Aircraft Lease Agreement** to be duly executed as of the Effective Date.
LESSOR:
**JRC Citation, LLC**
By:
/s/ Margaret Barradas
Print:
Margaret Barradas
Title:
Vice President
LESSEE:
**EGL Eagle Global Logistics, L.P.**
By:
/s/ Dana Carabin
Print:
Dana Carabin
Title:
Corporate Secretary
11
---
**NON-EXCLUSIVE AIRCRAFT LEASE AGREEMENT**
**Schedule A**
Hourly Rent: $2,200.00 per Flight Hour
12 | 140 |
agreement_13.md | **NON-EXCLUSIVE AIRCRAFT LEASE AGREEMENT**
**Schedule B**
**FSDO Notification Letter**
Date: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
**Via Facsimile**
Fax: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Federal Aviation Administration
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
***RE:***
***FAR Section 91.23 FSDO Notification***
***First Flight Under Lease of 2006 Cessna Citation X, N712KC, s/n 750-0255***
To whom it may concern: | 141 |
agreement_13.md | To whom it may concern:
Pursuant to the requirements of Federal Aviation Regulation Section 91.23(c)(3), please accept this letter as notification that the undersigned, EGL Eagle Global Logistics, L.P., will acquire and take delivery of a leasehold interest in the above referenced aircraft on the 13th day of November, 2006, and that the first flight of the aircraft under the lease will depart from \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ Airport on the \_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_, 200\_\_, at approximately \_\_\_\_\_ (am / pm) local time.
Sincerely,
EGL Eagle Global Logistics, L.P.
By:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Print:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Title:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
13 | 142 |
agreement_14.md | EX-10.20
2
dex1020.htm
FORM OF AIRCRAFT LEASE
Form of Aircraft Lease
**Exhibit 10.20**
FORM OF
USED BEECH 1900D AIRLINER OPERATING LEASE AGREEMENT
between
RAYTHEON AIRCRAFT CREDIT CORPORATION
and
GREAT LAKES AVIATION,
LTD.
LEASE AGREEMENT NO.
AIRCRAFT SERIAL NO.
DATE: | 143 |
agreement_14.md | USED BEECH 1900D AIRLINER OPERATING LEASE AGREEMENT
between
RAYTHEON AIRCRAFT CREDIT CORPORATION
and
GREAT LAKES AVIATION, LTD.
INDEX | 144 |
agreement_14.md | | | | | | |
| --- | --- | --- | --- | --- |
| | | | | |
| **Article** | | | | **Page** |
| 1 | | Lease of Aircraft | | 1 |
| | | |
| 2 | | Term of Lease and Rental Payments | | 3 |
| | | |
| 3 | | Aircraft Selection | | 4 |
| | | |
| 4 | | Lessee’s Final Acceptance of Aircraft | | 4 |
| | | |
| 5 | | Warranties and Lessor’s Disclaimer | | 5 |
| | | |
| 6 | | Ownership and Inspection of Aircraft | | 6 |
| | | |
| 7 | | Maintenance and Records | | 7 |
| | | |
| 8 | | Use and Operation of Aircraft | | 10 |
| | | |
| 9 | | Insurance | | 11 |
| | | |
| 10 | | Loss or Damage | | 13 |
| | | |
| 11 | | General Indemnities | | 15 |
| | | |
| 12 | | Licenses, Certificates, Permits, Fees and Taxes | | 16 |
| | | | | 145 |
agreement_14.md | | | | |
| 13 | | Default and Remedies | | 16 |
| | | |
| 14 | | Return of Aircraft | | 19 |
| | | |
| 15 | | Assignments and Benefits | | 25 | | 146 |
agreement_14.md | i | 147 |
agreement_14.md | | | | | | |
| --- | --- | --- | --- | --- |
| | | | | |
| **Article** | | | | **Page** |
| 16 | | Notices | | 26 |
| | | |
| 17 | | Lessee’s Representations, Warranties and Covenants | | 27 |
| | | |
| 18 | | Disputes | | 28 |
| | | |
| 19 | | Miscellaneous | | 28 |
| | | |
| 20 | | Early Termination Option | | 30 |
| | | |
| | | Signature Page | | 31 |
| | | |
| **Exhibits** | | | | |
| | | |
| A | | Additional Lease Details | | |
| | | |
| B | | Certificate of Final Acceptance | | | | 148 |
agreement_14.md | **OPERATING LEASE AGREEMENT**
This Operating Lease Agreement (“Agreement” or “Lease”) is made and entered into at Wichita, Kansas, as of the date of
its execution by the last of the parties hereto to execute the same, by and between RAYTHEON AIRCRAFT CREDIT CORPORATION, a Kansas corporation, with its principal place of business at 8300 East Thorn Drive, Suite 100, Wichita, Kansas 67226
(hereafter “Lessor”), and GREAT LAKES AVIATION, LTD., an Iowa corporation, with its principal place of business at 1022 Airport Parkway, Cheyenne, Wyoming 82001 (“Lessee”).
In consideration of the mutual promises, covenants and agreements set forth herein, Lessor and Lessee agree as follows:
ARTICLE 1: LEASE OF AIRCRAFT
| | |
| --- | --- |
| 1.1 | Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, one (1) used Beech (described as BEECH AIRCRAFT CORPORATION on the International Registry drop down menu)
Model 1900D Airliner aircraft manufactured by Raytheon Aircraft Company (hereafter “Manufacturer”), bearing manufacturer’s serial number and United States
Registration number , as further described in the Certificate of Final Acceptance, the form of which is attached hereto as Exhibit “B”. |
| | |
| --- | --- |
| 1.2 | All Exhibits referred to herein and attached hereto are by this reference incorporated as an integral part of this Lease, subject to the terms and conditions set forth herein.
| | 149 |
agreement_14.md | | | |
| --- | --- |
| 1.3 | Lessee is the holder of U.S. Federal Aviation Administration (“FAA”) Air Carrier Certificate No. GL-BA0-31A issued pursuant to 14 CFR §121/135, and intends to
operate the Aircraft to be furnished to it hereunder pursuant to said Certificate. |
| | |
| --- | --- |
| 1.4 | In accordance with the Convention on International Interests in Mobile Equipment (the “Convention”), the Protocol to the Convention on International Interests in
Mobile Equipment on Matters Specific to Aircraft Equipment (the “Protocol”), both signed in Cape Town, South Africa on November 16, 2001, as ratified by the United States, together with the Regulations for the International
Registry and the International Registry Procedures, and all other rules, amendments, supplements, and revisions thereto (collectively the “Cape Town Treaty”), Lessee acknowledges and agrees that this Lease creates and constitutes an
International Interest (as defined and provided for in the Cape Town Treaty) in the Aircraft. The terms “Administrator”, “International Interest”, “International Registry”, “Professional User Entity”,
“Professional User”, “Prospective International Interest”, “Register”, “Registration”, “Transacting User Entity”, shall have the meanings given them in the Convention or Protocol, as applicable. The
term “searchable” shall have the meaning contemplated by Article 19 of the Convention. |
1 | 150 |
agreement_14.md | | | |
| --- | --- |
| 1.5 | Definitions |
“Aircraft” means
(i) the aircraft described in the Certificate of Final Acceptance including the Airframe, the Engines, the Propellers, the Landing Gear whether or not installed on the Airframe, (ii) all Parts and components thereof, (iii) spare parts
or ancillary equipment or devices furnished with the Airframe, or the Engines under this Agreement, (iv) all Technical Records, and (v) substitutions, renewals and replacements of any of the items identified in clauses (i) through
(iv) above, including, in the case of (i), (ii) and (iii), any Engine, Propeller, Landing Gear or Part which is for the time being detached from the Airframe but remains the property of Lessor pursuant to this Agreement.
“Airframe” means the Aircraft, excluding the Engines and Technical Records.
“Certificate of Final Acceptance” shall have the meaning ascribed to it in Article 4.1(B)(3).
“Engine” means each of the engines listed on the Certificate of Final Acceptance, and any replacement engine acquired by Lessor and
leased to Lessee pursuant to the terms of this Lease following a Total Loss or an early removal of an Engine, together, in any case, with any and all Parts which are from time to time incorporated in or attached to such engine and any and all Parts
removed therefrom so long as title thereto is to remain vested in Lessor in accordance herewith. | 151 |
agreement_14.md | “Landing Gear” means the
landing gear installed on the Airframe on the Lease Commencement Date or any replacement thereof made in accordance with this Agreement, together, in any case with any and all Parts which are from time to time incorporated or attached to such
landing gear and any and all Parts removed therefrom so long as title thereto is to remain vested in Lessor in accordance herewith pursuant to Article 7.9.
“Part” means any part, component, appliance, accessory, instrument or other item of equipment (including the Propellers and Landing Gear, but excluding complete Engines or other engines) for the time
being installed or incorporated in or attached to the Airframe or an Engine, or which, having been removed therefrom, is to remain the property of Lessor pursuant to this Agreement.
“Pratt & Whitney” means Pratt & Whitney Canada Corporation and/or any affiliate thereof.
“Propeller” means each of the propellers specified in the Lease Supplement and any replacement thereof made in accordance with this
Agreement together, in any case, with any and all Parts which are from time to time incorporated in or attached to such propeller and any and all Parts removed therefrom so long as title thereto is to remain vested in Lessor in accordance herewith.
“Return of Aircraft” shall have the meaning ascribed to it in Article 2.4.
“Security Deposit” shall have the meaning ascribed to it in Article 2.4.
2 | 152 |
agreement_14.md | “Technical Records” means, whether in paper, photographic, digital, electronic or other
media, all technical data, manuals supplied by the Manufacturer or any other manufacturer or supplier, logs, records, and other materials and documents regarding the Aircraft or any part thereof that are delivered to Lessee upon delivery, including
but not limited to those identified on the Certificate of Final Acceptance or that are kept by Lessee or required by the FAA to be kept whether in compliance with any applicable law or this Agreement or any requirement for the time being of the FAA.
ARTICLE 2: TERM OF LEASE AND RENTAL PAYMENTS
| | |
| --- | --- |
| 2.1 | Lease Term: Subject to the Early Termination Option set forth in Article 20 below, this Lease shall be for the term stated in Exhibit “A” (hereafter “Lease
Term”). The Lease Term will commence on , as further set out in the Certificate of Final Acceptance (the “Lease
Commencement Date”). Upon expiration or termination of this Lease as provided herein, Lessee will return the Aircraft to Lessor in accordance with the provisions set forth below in Article 14. |
| | |
| --- | --- |
| 2.2 | Rental Payments: Lessee shall pay to Lessor as rent a monthly rental payment in the amount stated in Exhibit
“A”, which payment shall be payable in advance each month. The first monthly rental payment shall be due and payable to Lessor three (3) business days prior to the Lease Commencement Date. Each subsequent monthly rental payment shall
be due and payable on the twenty-eight (28th) day of each calendar month thereafter. | | 153 |
agreement_14.md | | | |
| --- | --- |
| 2.3 | Obligation to Pay Rent: Lessee shall make all rental payments and other payments to Lessor required under this Lease, in funds subject to immediate withdrawal, to such bank
account as Lessor may from time to time specify. Lessee’s obligations to pay all rent and other sums payable hereunder are absolute and unconditional, and without regard to: (A) any write-up, set-off, counterclaim or any other right which
Lessee may have against Lessor, the Manufacturer, the manufacturers of any other part of the Aircraft, or any other person for any reason whatsoever; (B) unavailability or interruption in use of the Aircraft, including governmental requisition
thereof, or limitations or restrictions in use of the Aircraft due to governmental action; (C) bankruptcy, reorganization or similar legal status on the part of Lessor, Lessee, any of the aforesaid manufacturers or any other person;
(D) Total Loss of the Aircraft until this Lease is terminated upon receipt by Lessor of the Stipulated Value in accordance with Article 10.2; and (E) any default of Lessee under this Lease, including, but not limited to, any failure of
Lessee to redeliver the Aircraft at the end of the Lease Term. | | 154 |
agreement_14.md | | | |
| --- | --- |
| 2.4 | Security Deposit: Lessee shall guarantee its performance hereunder in the form of a “Security Deposit” payable to Lessor at least three
(3) business days prior to the Lease Commencement Date in the amount stated in Exhibit “A”. Assuming no Event of Default (reference Article 13.1) has occurred and is continuing under this Lease, Lessee’s Deposit shall be refunded
by Lessor if, and only if, (A) upon return of the Aircraft, Lessee complies with the requirements of Article 14 of this Lease (“Return of Aircraft”), and (B) Lessee shall be current in the payment of all indebtedness or
other sums due and
|
3 | 155 |
agreement_14.md | | | |
| --- | --- |
| |
owing to Lessor, or any affiliate company of Lessor, by reason of any note, lease or other instrument or obligation, and no event of default is continuing
under any contractual commitment of Lessee to Lessor or its affiliate companies. Lessee hereby authorizes Lessor to apply all or applicable portions of the Security Deposit to be refunded hereunder in accordance with any other written agreement or
written instruction signed by an authorized representative of Lessee. |
| | |
| --- | --- |
| 2.5 | If any payment due hereunder to Lessor by Lessee is delayed, directly or indirectly, by Lessee’s action or inaction, then such delayed payment shall be subject to interest at
1.25 times the prime interest rate charged by Bank of America (New York, N.Y.) during the period of such nonpayment. |
ARTICLE 3: AIRCRAFT
SELECTION
| | |
| --- | --- |
| 3.1 | Lessee acknowledges and agrees that (i) the Aircraft selected to be leased hereunder is of the quality, size, design, capacity and manufacture selected by Lessee in its sole
discretion; and (ii) Lessee is satisfied that the Aircraft selected is suitable for Lessee’s purposes. |
ARTICLE 4: LESSEE’S
FINAL ACCEPTANCE OF AIRCRAFT
| | |
| --- | --- |
| 4.1 | Lessor shall offer the Aircraft for delivery to Lessee at Lessee’s facility in Cheyenne, Wyoming, in accordance with the following procedure: | | 156 |
agreement_14.md | | | | |
| --- | --- | --- |
| | (A) | The Aircraft shall be subject to Final Acceptance by Lessee’s duly authorized representatives (hereafter “Lessee’s Representative”) at Lessee’s
facility in Cheyenne, Wyoming. |
| | | |
| --- | --- | --- |
| | (B) | Delivery Procedure. The Aircraft shall be offered for acceptance and delivery to Lessee in accordance with the following procedure: |
| | | |
| --- | --- | --- |
| | (1) | Final acceptance of the Aircraft shall be based upon the Aircraft being leased to Lessee in an “AS IS, WHERE IS, AND WITH ALL FAULTS” condition. Lessee will perform at its
sole cost and expense all inspections, maintenance, repair and reconditioning of the Aircraft as may be required in order for Lessee to place the Aircraft on its operating certificate and satisfy the requirements of the Federal Aviation Regulations.
Lessee will repair all airworthiness and safety of flight discrepancies prior to placing the Aircraft into revenue service. |
| | | |
| --- | --- | --- |
| | (2) | Prior to final acceptance, (a) Lessee shall establish a valid and existing account with the International Registry, and appoint an Administrator and/or a Professional User
acceptable to Lessor to make registration in regards to the Aircraft and this Lease, and (b) Lessor and Lessee shall register a first priority Prospective International Interest in connection with the Aircraft which shall be searchable in the
International Registry to the satisfaction of Lessor. |
4 | 157 |
agreement_14.md | | | | |
| --- | --- | --- |
| | (3) | Upon completion of final acceptance of the Aircraft by Lessee, Lessee’s Representative shall sign and provide Seller with a Certificate of Final Acceptance similar in form to
that set forth in Exhibit “B” attached hereto (“Certificate of Final Acceptance”). |
| | | |
| --- | --- | --- |
| | (4) | Risk of loss shall pass to the Lessee upon completion of final acceptance, as evidenced by the signed Certificate of Final Acceptance. |
ARTICLE 5: WARRANTIES AND LESSOR’S DISCLAIMER
| | |
| --- | --- |
| 5.1 | Lessor warrants that Lessee shall have the right to possession and quiet enjoyment of the Aircraft during the Lease Term so long as Lessee is not in default.
|
| | |
| --- | --- |
| 5.2 | LESSEE ACKNOWLEDGES AND UNDERSTANDS LESSOR IS NOT THE MANUFACTURER OF THE AIRCRAFT TO BE LEASED HEREUNDER. THEREFORE, LESSOR LEASES THE AIRCRAFT TO LESSEE IN AN “AS IS”
AND “WITH ALL FAULTS” CONDITION. LESSOR MAKES NO WARRANTIES OR REPRESENTATIONS TO LESSEE, EITHER EXPRESS OR IMPLIED, AS TO: |
| | | |
| --- | --- | --- |
| | (A) | THE CONDITION, DESIGN, OPERATION, FITNESS FOR USE OR MERCHANTABILITY OF THE AIRCRAFT; |
| | | |
| --- | --- | --- |
| | (B) | THE FITNESS OF THE AIRCRAFT FOR ANY PARTICULAR PURPOSE OF LESSEE; | | 158 |
agreement_14.md | | | | |
| --- | --- | --- |
| | (C) | THE AIRWORTHINESS OF THE AIRCRAFT; OR |
| | | |
| --- | --- | --- |
| | (D) | ANY OTHER MATTER WHATSOEVER, IT BEING EXPRESSLY AGREED BY THE PARTIES THAT ALL RISKS RELATING TO OR ARISING FROM LESSEE’S USE AND OPERATION OF THE AIRCRAFT SHALL BE BORNE AND
ASSUMED SOLELY BY LESSEE. |
| | |
| --- | --- |
| 5.3 | WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LESSOR SHALL NOT BE LIABLE FOR ANY DEFECTS, EITHER LATENT OR PATENT, IN THE AIRCRAFT NOR FOR ANY GENERAL, CONSEQUENTIAL OR
INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES FOR DIMINUTION OF MARKET VALUE, LOSS OF USE OF THE AIRCRAFT, LOSS OF PROFITS OR FOR ANY INTERRUPTION IN LESSEE’S BUSINESS OCCASIONED BY ITS INABILITY TO USE THE AIRCRAFT FOR ANY
REASON WHATSOEVER. LESSOR SHALL NOT BE LIABLE FOR ANY DAMAGES CLAIMED BY LESSEE OR ANY OTHER PERSON OR ENTITY UPON THE THEORIES OF NEGLIGENCE OR STRICT LIABILITY IN TORT. |
5 | 159 |
agreement_14.md | | | |
| --- | --- |
| 5.4 | In no event shall any defect in, or unfitness of, the Aircraft relieve Lessee of any of its obligations under this Lease, including but not limited to its obligations to pay rent or
make any other payments required under this Lease. |
ARTICLE 6: OWNERSHIP AND INSPECTION OF AIRCRAFT
| | |
| --- | --- |
| 6.1 | Lessee acknowledges and agrees to each of the following: |
| | | |
| --- | --- | --- |
| | (A) | Ownership of and title to the Aircraft and the Engines, Propellers and Parts installed therein and accessions thereto (including all Engines, Propellers and Parts installed
subsequent to delivery) shall vest in and remain with Lessor, subject to the provisions set forth below in Article 7.9. |
| | | |
| --- | --- | --- |
| | (B) | Lessee will make no claim nor assert any right to the Aircraft inconsistent with Lessor’s ownership and title thereto. |
| | | |
| --- | --- | --- |
| | (C) | If required by the FAA or if requested by Lessor, Lessee will cause the Aircraft to have plainly, distinctly and permanently affixed to it at all times during the Lease Term a
statement (in size, form and location reasonably satisfactory to Lessor) indicating that the Aircraft is owned by Lessor and, if applicable, financed by a specifically-named third party. | | 160 |
agreement_14.md | | | | |
| --- | --- | --- |
| | (D) | Lessee will at all times keep the Aircraft free and clear from any and all liens, claims, charges, registrations, encumbrances and legal processes and, at Lessee’s expense,
will protect and defend Lessor’s title to the Aircraft from and against all liens, claims, charges, encumbrances and legal processes which may arise during the Lease Term, except for liens, claims, charges, encumbrances and legal processes
arising through Lessor. Lessee will not register any prospective or current International Interest or Contract of Sale (or any amendment, modification, supplement, subordination of subrogation thereof) with the International Registry without the
prior written consent of Lessor which may be withheld in its sole discretion. Any agreement between Lessee and a third party will provide that said third party shall acknowledge and agree it will not register, or consent to or allow any registration
whatsoever (including a registration of a prospective international interest or prospective contract of sale) against the Aircraft and a covenant from the third party to include this prohibition and covenant in any other contract or agreement said
third party may enter into regarding the Aircraft. |
| | | |
| --- | --- | --- |
| | (E) | Lessee will, whenever requested by Lessor during the Lease Term, execute and deliver to Lessor any agreements, instruments and documents, in a form satisfactory to Lessor, which may
be necessary to fully consummate the various undertakings contemplated herein and necessary for the maintenance and protection of Lessor’s title to the Aircraft, including, but not limited to, filings with the FAA or the International Registry.
|
6 | 161 |
agreement_14.md | | | | |
| --- | --- | --- |
| | (F) | Lessee will allow Lessor to make reasonable periodic inspections of the Aircraft and its Engines, Propellers, Parts and Technical Records, including visual and physical inspections
and testing utilizing such methods and non-destructive technologies as Lessor, in its sole discretion, deems proper and necessary. |
| | | |
| --- | --- | --- |
| | (G) | Lessee will make reports in such form (consistent with standard industry practice) and at such times as Lessor may reasonably require with regard to the Aircraft, including, but not
limited to, the use, operation, location and condition of the Aircraft. |
| | |
| --- | --- |
| 6.2 | Lessee understands and agrees that it will not acquire any right of beneficial ownership or equity in the Aircraft by reason of the payment of any rentals hereunder or by virtue of
any other reason or legal theory. Lessee shall not have the right to register the Aircraft in Lessee’s name with the FAA or any other governing authority, unless Lessor specifically agrees in writing. |
| | |
| --- | --- |
| 6.3 | Lessee acknowledges that Lessor is the owner of the Aircraft and that Lessee holds the Aircraft under lease from Lessor. Lessee covenants that it will, for income tax purposes,
treat the transactions contemplated hereby as a true lease and will not take any position on its tax returns or in any other document or instrument relating thereto that is inconsistent therewith other than, if required by generally accepted
accounting principles, its financial statements. |
ARTICLE 7: MAINTENANCE AND RECORDS | 162 |
agreement_14.md | ARTICLE 7: MAINTENANCE AND RECORDS
| | |
| --- | --- |
| 7.1 | Lessee shall, at its own expense and at all times during the Lease Term, maintain the Aircraft and cause the Aircraft to remain currently certified and completely airworthy and in
good and safe operating order, repair and condition in accordance with the requirements of the FAA and any other governmental authorities having jurisdiction therefor. Lessee, at its own expense, shall also pay for all fuel, service, inspections,
overhauls, replacements, substitutions, improvements, storing, hangaring, maintenance and Airworthiness Directives (with which the FAA requires completion or compliance during the Lease Term) respecting the Aircraft and will permit all such required
inspections, replacements, substitutions, maintenance and repair work to be performed only at either (a) Lessee’s service facility, provided that Lessee maintains its Part 121 and Part 145 certifications, or (b) service facilities
duly licensed by the FAA, approved by the Manufacturer and acceptable to Lessor. Lessee will cause all such work (as described in the preceding sentence) to be performed by appropriately licensed and currently certificated persons duly qualified to
perform such work as and when required thereby. |
| | |
| --- | --- |
| 7.2 | Lessee will operate the Aircraft in compliance with all FAR requirements set forth under Title 14 of the Code of Federal Regulations, as well as any other applicable laws or
regulations. |
| | |
| --- | --- |
| 7.3 | Lessee will maintain the Aircraft in accordance with the Manufacturer’s operating, inspection and maintenance manuals or Lessee’s FAA-approved maintenance
and
|
7 | 163 |
agreement_14.md | | | |
| --- | --- |
| |
inspection program, and in compliance with all applicable FAR requirements set forth under Title 14 of the Code of Federal Regulations (hereinafter sometimes
referred to as “Maintenance Program”). |
| | |
| --- | --- |
| 7.4 | Lessee shall prepare and maintain all Technical Records pertaining to the Aircraft during the Lease Term in accordance with all applicable rules and regulations of the FAA and any
other governmental authorities. Such records shall be prepared and maintained in a commercially prudent manner and shall provide a complete historical record of the Aircraft, including, but not limited to, the use, operation, servicing and
maintenance of the Aircraft, and all Airworthiness Directives and Service Bulletins that may be issued relative to the Aircraft. A complete record of the number of Manufacturer’s defined and specified cycles completed by the Aircraft shall also
be maintained in appropriate log books or other permanent records for the Aircraft. |
| | |
| --- | --- |
| 7.5 | All records which Lessee is required to prepare, maintain and retain under this Article shall be available for examination and copying by Lessor at all reasonable times. Lessee
agrees to furnish any information in respect to the location and use of the Aircraft that Lessor may reasonably request. Lessee shall deliver, free of charge, all such records in complete and current form to Lessor upon return of the Aircraft to
Lessor. |
| | |
| --- | --- |
| 7.6 | Lessee, at its sole expense, may make alterations, modifications, additions or improvements to the Aircraft, provided that: | | 164 |
agreement_14.md | | | | |
| --- | --- | --- |
| | (A) | any such alteration, modification, addition or improvement has been approved by the Manufacturer of the Aircraft and/or required by the FAA; |
| | | |
| --- | --- | --- |
| | (B) | any such alteration, modification, addition or improvement does not eliminate any of the Aircraft’s capabilities, nor reduce its value or utility, nor impair its warranty,
airworthiness, certifications, safety or performance; and |
| | | |
| --- | --- | --- |
| | (C) | Lessee receives Lessor’s prior written approval, provided that such approval shall not be required with respect to any routine maintenance or repairs performed by Lessee on the
Aircraft. |
Unless otherwise agreed in writing, all such alterations, modifications, additions and improvements to the Aircraft
shall become a part of the Aircraft leased hereunder. Lessee shall promptly notify Lessor in writing of the nature of any contemplated alteration, modification, addition or improvement, and if Lessor’s written approval is given, Lessee shall
subsequently notify Lessor upon the completion of the alteration, modification, addition or improvement that such work has been accomplished and all required entries in the Technical Records or other permanent records of the Aircraft have been made
and certified by FAA-authorized Inspectors.
| | |
| --- | --- |
| 7.7 | Lessee shall promptly notify Lessor of any and all engine and propeller changes or substitutions with respect to the Aircraft. Lessee agrees to execute, deliver and
facilitate any and all required filings necessary in connection with such change or substitution,
|
8 | 165 |
agreement_14.md | | | |
| --- | --- |
| |
including but not limited to filings with the FAA or the International Registry, that Lessor shall determine in its sole discretion are necessary to maintain
and protect its interest in the Aircraft. |
| | |
| --- | --- |
| 7.8 | Engine Maintenance Costs and Consumption Fee |
| | | |
| --- | --- | --- |
| | (A) | Maintenance Costs: Lessee shall be solely responsible for the cost of all scheduled and unscheduled maintenance on the Engines during the Lease Term, including but not
limited to the cost of any basic unscheduled removal of an engine and foreign object damage. |
| | | |
| --- | --- | --- |
| | (B) | Consumption Fee: In lieu of Lessee enrolling the Engines in a maintenance reserves plan or program with the engine manufacturer or other third party supplier of such
services, Lessee shall pay Lessor an engine consumption fee in the amount stated in Exhibit “A” for all engine utilization during the Lease Term. The consumption fees shall (i) be calculated on a monthly basis and paid by Lessee to
Lessor monthly in arrears, (ii) be the sole and exclusive property of Lessor, and (iii) not be available to Lessee for use as maintenance reserves or for use in performing repairs or maintenance on the Aircraft’s engines.
|
| | |
| --- | --- |
| 7.9 | Substitution and Ownership of Parts and Engines | | 166 |
agreement_14.md | | | |
| --- | --- |
| 7.9 | Substitution and Ownership of Parts and Engines |
| | | |
| --- | --- | --- |
| | (A) | Substitution of Parts. Lessee, at its own cost and expense, will promptly replace any and all Parts (inclusive of Propellers and Landing Gear) that may from time to time be
incorporated or installed in or attached to the Aircraft or any Engine that may from time to time become worn out, lost, stolen, destroyed, seized, confiscated, damaged beyond repair or permanently rendered unfit for use for any reason whatsoever.
All replacement Parts and replacement Engines shall (i) be in as good operating condition as the Part or Engine replaced assuming such replaced Part or replaced Engine was in the condition and repair required to be maintained by the terms of
this Agreement, (ii) be of comparable make and model or an improved or advanced version of the replaced Part or Engine and approved for installation on the Aircraft, (iii) have origin (back-to-birth) traceability and valid FAA
certification, and (iv) not impair the airworthiness or diminish the overall value of the Aircraft, and any such replacement Part or Engine, upon installation on the Aircraft, shall thereby be owned by Lessor and become subject to this
Agreement without the necessity of further act. | | 167 |
agreement_14.md | | | | |
| --- | --- | --- |
| | (B) | Ownership of Replacement Parts and Engines. Lessee shall procure that any substituted, replacement or renewed Part or Engine shall be, or upon installation
on the Aircraft become, the property of Lessor subject to this Agreement and any security documents and be free and clear of liens and encumbrances, and Lessee shall deliver to Lessor any instruments reasonably required by Lessor evidencing
Lessor’s title to such substitution, replacement or renewal Part or Engine. Any Part or Engine at any time removed from the Aircraft shall remain the property of Lessor, no matter where located, until such time as such Part or Engine shall be
|
9 | 168 |
agreement_14.md | | | |
| --- | --- |
| |
replaced by a Part or Engine that has been incorporated or installed in or attached to the Aircraft in a manner that satisfies the requirements of the
preceding sentence, whereupon title and ownership to such removed Part or Engine shall vest in Lessee. |
| | | |
| --- | --- | --- |
| | (C) | Removal, Pooling and Interchange of Engines and Propellers. Lessee shall not permit any Engine or Propeller to be removed from the Aircraft and (i) installed on another
aircraft, (ii) placed into storage or (iii) placed into the care, custody or control of any third party without first obtaining the express written consent of Lessor. |
| | | |
| --- | --- | --- |
| | (D) | Title to Removed Parts and Engines. If a Part or Engine is at any time removed from the Aircraft for any reason whatsoever, title to such Part or Engine shall remain vested
in Lessor at all times and such shall remain subject to this Agreement and any security documents, and Lessee shall not take any steps that could be reasonably expected to jeopardize the interest of Lessor and any lender or secured party therein or
that could be reasonably expected to lead any third party to believe that such Part or Engine is the property of any person other than Lessor, subject to the provisions set forth above in the last sentence of Article 7.9(B).
|
ARTICLE 8: USE AND OPERATION OF AIRCRAFT | 169 |
agreement_14.md | ARTICLE 8: USE AND OPERATION OF AIRCRAFT
| | |
| --- | --- |
| 8.1 | Lessee warrants that the Aircraft will be used only for lawful purposes in the normal course of Lessee’s business. Lessee shall at all times keep the Aircraft duly and properly
registered on the U.S. register of civilian aircraft. Lessee’s use and operation of the Aircraft is restricted to the areas of operation authorized in Lessee’s FAA-approved operations specifications. Lessee will not use or operate the
Aircraft in any geographic area for which Lessee has not obtained and is maintaining, in full force and effect, the insurance coverage required under this Lease. Additionally, Lessee must obtain and carry adequate insurance coverage protecting the
Aircraft against confiscation, war risks and allied perils for any operations outside of the United States of America, Canada and/or Mexico. |
| | |
| --- | --- |
| 8.2 | During the Lease Term, Lessee shall hold and maintain in good standing a current and valid operating certificate in conformity with FAR Parts 121, and/or 135, as such FARs may be
applicable to Lessee’s usage and operation of the Aircraft. Lessee agrees to use and operate the Aircraft only in full compliance with all applicable FAR requirements and in accordance with the terms, conditions and provisions of all insurance
policies required under this Lease. | | 170 |
agreement_14.md | | | |
| --- | --- |
| 8.3 | During the Lease Term, Lessee will abide by and conform to all applicable laws, ordinances, orders, rules and regulations, whether federal, state, municipal, foreign or otherwise,
now existing or hereafter enacted (including, without limitation, those now or hereafter promulgated by the FAA and any other governmental agency having jurisdiction over the Aircraft), which control or in any way affect the possession, maintenance,
condition, operations, use or airworthiness of the Aircraft, or the use of any premises or facilities occupied by the Aircraft. |
10 | 171 |
agreement_14.md | | | |
| --- | --- |
| 8.4 | Lessee will not load, use, operate, maintain, service, repair, hangar or store the Aircraft negligently, abusively, improperly or in violation of this Lease or so as to void or
adversely affect any insurance covering the Aircraft. Lessee will keep the Aircraft adequately protected at all times when not in use. |
ARTICLE 9: INSURANCE
| | |
| --- | --- |
| 9.1 | Lessee will, at all times and at its sole expense, obtain and carry the types and amounts of insurance coverage specified below (to the extent the same are commercially available to
airline operators): |
| | | |
| --- | --- | --- |
| | (A) | “All Risk” type hull insurance on the Aircraft, subject to the physical damage deductible both In-Flight and Not In-Flight, including ingestion and foreign object damage,
and in amounts not less than the value stated in Exhibit “A” (“Stipulated Value”) attached hereto and with a deductible not exceeding U.S.$50,000.00. All policies of insurance carried in accordance with this subsection
(A) will provide that the insurance proceeds from any loss involving the Aircraft will be jointly payable to Lessor and Lessee, provided that insurance proceeds in amounts below U.S.$50,000.00 may be paid by the insurer directly to Lessee.
| | 172 |
agreement_14.md | | | | |
| --- | --- | --- |
| | (B) | Aircraft passenger liability, public liability and property damage liability insurance, including such additional liability insurance as is necessary to cover Lessee’s
incidental use and operation of the Aircraft, with limits no less than U.S. $50,000,000.00 combined single limit per occurrence. Such insurance will not favor Lessee or any other insured as against Lessor, its officers, agents, servants, employees,
successors or assigns as to priority of application of insurance proceeds in satisfaction of claims against more than one insured. |
| | | |
| --- | --- | --- |
| | (C) | Hull War and Allied Perils coverage for the amount of the Stipulated Value (including confiscation by government of registration), and Liability War and Allied Perils coverage (form
AVN 52E) in the amount of U.S. $50,000.000.00, or if the FAA offers such War and Allied Perils insurance coverage which affords to Lessor equal to or better coverage and amounts as required by form AVN52E, Lessee may carry such War and Allied Perils
coverage under an FAA insurance policy. If separate Hull “all risk” and “war risk” insurance is arranged, a 50/50 provision must be included in accordance with market practice (AVS 103 is the current market language).
| | 173 |
agreement_14.md | | | | |
| --- | --- | --- |
| | (D) | Insurance on the Aircraft’s engines and parts, which covers said engines or parts when they are not installed on the Aircraft or another aircraft, under a contract of all risks
property insurance for an amount which will at no time shall be less than the replacement cost of said engines or parts, the terms and conditions of which do not provide for any payment by Lessee in the form of a deductible in an amount greater than
U.S. $50,000.00. |
11 | 174 |
agreement_14.md | | | |
| --- | --- |
| 9.2 | All insurance policies maintained by Lessee in accordance with Article 9.1, subsections (A) through (D), will also comply with each of the following requirements:
|
| | | |
| --- | --- | --- |
| | (1) | name Lessor and Lessee as loss payee with respect to the physical damage coverages maintained in accordance with the provisions of subsections (A), (C) and (D) and as
additional insured with respect to the liability coverages maintained in accordance with the provisions of subsections (B) and (C); |
| | | |
| --- | --- | --- |
| | (2) | be in the kind and form satisfactory to Lessor and issued by insurers of recognized responsibility which are satisfactory to Lessor; |
| | | |
| --- | --- | --- |
| | (3) | with regard to the insurance coverage required by subsection (B), be primary without right of contribution from any other insurance which is carried by Lessor with respect to its
interest in the Aircraft; |
| | | |
| --- | --- | --- |
| | (4) | waive any right of subrogation of the insurer against Lessor; likewise, Lessee will waive any right of subrogation against Lessor to the same extent the Lessee has waived its rights
of recovery under the terms of this agreement; |
| | | |
| --- | --- | --- |
| | (5) | provide that Lessor shall have no obligation or liability for premiums, commissions, assessments or calls in connection with such insurance policies; | | 175 |
agreement_14.md | | | | |
| --- | --- | --- |
| | (6) | provide that if such insurance is canceled by insurers for any reason whatsoever, or any substantial change is made in policy terms, conditions or coverage adverse to the interests
of Lessor, or the policy is allowed to lapse for nonpayment of premium, such cancellation, change or lapse will not be effective as to Lessor until thirty (30) days (seven [7] days or such shorter period as is customary with respect to War
Risks coverages / ten [10] days in the event of cancellation due to nonpayment of premium) after Lessee’s insurers send written notice of the cancellation, change or lapse in policy terms, conditions or coverage to Lessor via certified mail or
facsimile transmission; |
| | | |
| --- | --- | --- |
| | (7) | provide that in respect of the interest of Lessor in such policies, the insurance will not be invalidated by any action or inaction of Lessee and will insure Lessor regardless of
any breach or violation by Lessee of any warranty, declaration or condition contained in such policies as respects physical damage coverage only; |
| | | |
| --- | --- | --- |
| | (8) | provide that the geographic limits, if any, contained in such policy will include at a minimum all territories over which Lessee will operate the Aircraft; | | 176 |
agreement_14.md | | | | |
| --- | --- | --- |
| | (9) | Lessee will furnish to Lessor evidence of the aforesaid insurance coverage in certificate form. Evidence of renewal of each policy will thereafter be furnished to Lessor in
certificate form. Lessee covenants that it will not do any act or voluntarily suffer or permit any act to be done whereby any insurance required hereunder will or may be suspended, impaired or defeated; and |
12 | 177 |
agreement_14.md | | | | |
| --- | --- | --- |
| | (10) | only with respect to subsection (B), include a Severability of Interest Clause which provides that the insurance, except for the limit of liability, will operate to give each
insured the same protection as if there was a separate policy issued to each of them. |
| | |
| --- | --- |
| 9.3 | Lessee’s use of the Aircraft may be terminated by Lessor, at any time and without notice, in the event Lessee fails to maintain in force any of the insurance coverage required
under this Article. |
| | |
| --- | --- |
| 9.4 | Lessee warrants that the Aircraft shall be operated: |
| | | |
| --- | --- | --- |
| | (A) | only by duly licensed pilot operators currently certificated as qualified to operate the Aircraft in compliance with the laws of the United States or any other state or local
governmental authorities having jurisdiction therefor; and |
| | | |
| --- | --- | --- |
| | (B) | in accordance with the provisions of the insurance policy or policies issued in connection therewith. |
ARTICLE 10: LOSS OR DAMAGE
| | |
| --- | --- |
| 10.1 | Lessee assumes and shall bear the entire risk of loss, destruction, theft, taking of or damage to the Aircraft from any cause whatsoever. Lessee shall promptly report to Lessor in
writing any loss, destruction, theft, taking of or damage to the Aircraft, and shall promptly provide to Lessor copies of all reports or documents made or given by Lessee relating thereto. | | 178 |
agreement_14.md | | | |
| --- | --- |
| 10.2 | In the event the Aircraft shall have been lost, destroyed, stolen or damaged to such an extent that the Manufacturer and/or Lessor determines that repair thereof is impractical, or
in the event of a total taking of the Aircraft (which term includes, without limitation, seizure, hijacking, condemnation, requisition or taking of possession of the Aircraft by any governmental authority, domestic or foreign, or any agency or
political subdivision thereof), Lessee shall pay to Lessor or its Assignee within ninety (90) days after such loss, destruction, theft, taking or damage, a sum equal to the Stipulated Value stated in Exhibit “A” hereto, plus an amount
equal to any accrued rental payments due hereunder, plus all other sums payable under this Lease (including, but not limited to, the sums payable under any indemnity provisions). The occurrence of any of the above-identified incidents shall be
deemed as a “Total Loss” of the Aircraft. Any nonpayment of insurance proceeds that may be due hereunder will not excuse Lessee from its obligation to pay Lessor as set forth hereinabove. |
| | |
| --- | --- |
| 10.3 | To the extent that the loss, destruction, theft, taking or damage described in Article 10.2 is covered by insurance, all proceeds of such insurance shall be first
applied by Lessor toward satisfaction of the payments required to be made to Lessor or its Assignee
|
13 | 179 |
agreement_14.md | | | |
| --- | --- |
| |
pursuant to Article 10.2. Upon Lessor’s receipt of payment in full as required under Article 10.2, this Lease shall terminate (if Lessee is not then in
default under this Lease) and Lessee shall become entitled to: |
| | | |
| --- | --- | --- |
| | (A) | all remaining proceeds of insurance pertaining to the Aircraft, and all rights and ownership in the insurance policies required under this Lease, except as to such policies insuring
or covering liabilities of Lessor or any other person named as insured or covered thereby, caused by or arising out of or in connection with any events, matters or circumstances antedating or existing at the time of such termination; and
|
| | | |
| --- | --- | --- |
| | (B) | all of Lessor’s rights, title, duties and interest with regard to the Aircraft as they exist at the time of such termination, without warranty, express or implied, as to any
matter whatsoever. |
LESSEE’S ACQUISITION OF TITLE TO THE AIRCRAFT SHALL BE “AS IS, WHERE IS, AND WITH ALL
FAULTS”. FOLLOWING TRANSFER OF TITLE TO LESSEE, LESSOR SHALL NOT THEREAFTER BE LIABLE FOR ANY GENERAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES FOR LOSS OF USE, LOSS OF PROFITS OR DIMINUTION OF MARKET
VALUE, OR ANY DAMAGES CLAIMED BY THE LESSEE OR ANY OTHER PERSON OR ENTITY UPON THE THEORIES OF NEGLIGENCE OR STRICT LIABILITY IN TORT. | 180 |
agreement_14.md | Following Lessor’s transfer of title to Lessee, Lessee shall release, indemnify and hold Lessor harmless, together with its insurers, directors, officers, agents, employees and stockholders, from any and all claims, suits, litigations,
judgments, costs, expenses, losses or damage whatsoever, including reasonable attorneys’ fees and expenses, arising out of or relating to any deaths, personal injury, sickness or condition, loss or destruction of property, and/or any loss of
the time, or use of the Aircraft or other equipment, or loss of time of employment of persons in respect to any claimed loss, injury or damage for which liability might be imposed under any of the laws of any jurisdiction by reason of an accident
involving the Aircraft.
Lessor and Lessee agree to deliver such duly executed instruments as may be required to accomplish the foregoing.
| | |
| --- | --- |
| 10.4 | If the Aircraft or any part or component thereof shall suffer any loss, destruction, theft, taking or damage, other than as set forth in Article 10.2 above, Lessee
shall at its own expense promptly restore the Aircraft to a good and safe and airworthy condition, repair and working order, including, without limitation, replacing all equipment, parts or components of the Aircraft as shall have been lost,
destroyed, stolen, taken or damaged with Manufacturer approved equipment, parts or components of equal or greater value. After any such repairs or replacements are completed, Lessee shall certify to Lessor that the Aircraft has been inspected by an
FAA-authorized Inspector and has in effect a current FAA Certificate of Airworthiness. All insurance proceeds paid to Lessor as a
|
14 | 181 |
agreement_14.md | | | |
| --- | --- |
| |
result of such damage, pursuant to Article 9.1(A) hereof, shall be available to reimburse Lessee for the reasonable costs of all required repairs, provided
that no “Event of Default” (reference Article 13) has occurred and is continuing. |
| | |
| --- | --- |
| 10.5 | No loss, destruction, theft, taking of or damage to the Aircraft, however occurring and whether or not the same is covered by insurance, shall relieve Lessee of any of its
obligations under this Lease. |
ARTICLE 11: GENERAL INDEMNITIES
| | |
| --- | --- |
| 11.1 | Lessee shall exonerate and indemnify Lessor, its officers, employees, representatives, insurers, agents and assigns, against and hold them harmless from, any and all claims,
actions, suits, proceedings, losses, judgments, damages and liabilities (including reasonable attorneys’ fees) and all other costs and expenses in connection therewith or incident thereto, for death or injury to any person (other than Lessor or
Lessor’s employees) whomsoever, and for any loss or damage to, or destruction of, any property whatsoever, caused by or arising out of, or in any way connected with or resulting from: |
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| | (A) | the Aircraft or any property or persons aboard or connected with the Aircraft; | | 182 |
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| | (B) | the manufacture, acquisition, selection, delivery, possession, use, condition, operation, storage, maintenance, servicing, repair or return of the Aircraft; and
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| | (C) | strict liability in tort relating to the Aircraft, provided that Lessee shall have no obligation to indemnify Lessor for any acts or omissions on the part of the manufacturer of the
Aircraft or any of its parts or components; |
but only to the extent any such claims, actions, suits, proceedings, losses,
judgments, damages and liabilities are caused by or arise out of or result from any errors, acts, omissions or negligence on the part of Lessee. | 183 |
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| --- | --- |
| 11.2 | LESSEE HEREBY AGREES TO RELEASE, PROTECT, INDEMNIFY AND HOLD LESSOR HARMLESS, TOGETHER WITH ITS OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND INSURERS, FROM AND AGAINST ANY AND
ALL CLAIMS, ACTIONS, SUITS, PROCEEDINGS, JUDGMENTS, COSTS, FINES, EXPENSES, LOSSES, DAMAGES AND LIABILITIES WHICH IN ANY MANNER RELATE TO OR ARISE OUT OF THE INJURY OR DEATH OF ANY PERSON, OR DAMAGE TO OR LOSS OF PROPERTY, OCCASIONED BY OR RESULTING
FROM (A) ANY ACCIDENT OR FAILURE OF THE AIRCRAFT OR ANY OF ITS EQUIPMENT WHICH OCCURS AT ANY TIME DURING WHICH LESSEE OWNS AND/OR OPERATES THE AIRCRAFT, (B) ANY ACTS OR OMISSIONS OF LESSEE IN THE INSPECTION, REPAIR, MAINTENANCE, SERVICING
OR OPERATION OF THE AIRCRAFT, AND (C) ANY ACTS OR OMISSIONS OF LESSEE IN FULFILLING THE WARRANTIES AND COVENANTS STIPULATED IN THIS AGREEMENT. |
15 | 184 |
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| --- | --- |
| 11.3 | With respect to causes of action accruing during the Lease Term, the indemnities specified above in Article 11.1 shall remain in full force and effect notwithstanding the expiration
or other termination of this Lease. |
ARTICLE 12: LICENSES, CERTIFICATES, PERMITS, FEES AND TAXES
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| --- | --- |
| 12.1 | Lessee shall, at its sole expense, procure and maintain in effect all licenses, certificates, permits and other approvals and consents required by any municipal, state, federal or
foreign laws and regulations in connection with the possession, use and operation of the Aircraft. Lessee shall pay promptly when due all registration, title, license, landing, toll, permit and certificate fees, all assessments, sales, use, gross
receipts, property and any and all other taxes or other charges of whatever nature (hereinafter collectively called “Impositions”) and by whomever payable (except federal or state taxes levied on Lessor’s net income), now or
hereafter imposed by any state, federal, local or foreign governmental authority upon any use, ownership, rental, shipment, transportation, delivery or operation of the Aircraft or upon or measured by any payments due hereunder.
|
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| 12.2 | If any such Impositions and any penalties or interest thereon shall be paid by Lessor or if Lessor is required to collect and pay any thereof, Lessee shall, upon demand by Lessor,
promptly reimburse Lessor for such sums and for any expenses incurred therein, and any such payment made by Lessor for Lessee shall not relieve Lessee from its obligation to pay all such Impositions as provided hereunder. | | 185 |
agreement_14.md | ARTICLE 13: DEFAULT AND REMEDIES
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| --- | --- |
| 13.1 | An “Event of Default” shall be deemed to occur if: |
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| | (A) | Lessee either (1) fails to pay when due any monthly rental payment or any other sum scheduled to be payable to Lessor under this Lease, or (2) if the failure continues for
a period of five (5) days after Lessor has given Lessee notice of the failure; |
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| --- | --- | --- |
| | (B) | Lessee fails to pay when due any unscheduled payment payable to Lessor under this Lease, and such failure continues for a period of five (5) days after Lessor has given Lessee
notice of the failure; |
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| --- | --- | --- |
| | (C) | Lessee fails to perform or observe any material covenant, warranty, condition, obligation or agreement to be performed, honored or observed by it hereunder, if such failure
continues for a period of seven (7) days after Lessor has given Lessee notice of such failure; |
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| --- | --- | --- |
| | (D) | any carrier of insurance cancels or reduces coverage under any policy of insurance required hereunder or determines that Lessee is an uninsurable risk at standard rates;
|
16 | 186 |
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| --- | --- | --- |
| | (E) | Lessor determines that any material warranty or representation of Lessee herein was untrue when made; |
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| | (F) | Lessee’s Air Carrier Certificate (reference Article 1.3) is revoked or suspended for any reason; |
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| | (G) | Lessee ceases doing business as a going concern, makes an assignment for the benefit of creditors, admits in writing its inability to pay its debts as they become due or such fact
is determined in a judicial proceeding, files a voluntary petition in bankruptcy, has a petition in bankruptcy filed against it, is adjudicated a bankrupt or an insolvent, files a petition seeking for itself any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar arrangement under any present or future statute, law or regulation, or files an answer admitting the material allegations of a petition filed against it in any such proceedings, consents
to or acquiesces in the appointment of a trustee, receiver or liquidator of it or of all or any substantial part of its assets or properties, or if it or the holders of its Common Stock shall take any action contemplating its dissolution or
liquidation (but excluding a filing of technical insolvency with the Internal Revenue Service for income recognition purposes); |
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| --- | --- | --- |
| | (H) | Lessee attempts to sell, transfer, sublet, encumber or part with possession of the Aircraft or any item thereof in breach of this Lease; or | | 187 |
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| | (I) | Lessee is in default under any obligation in excess of $1,000,000 which it has for the payment of money to any person or entity. |
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| 13.2 | Upon the occurrence of any Event of Default, Lessor may elect to declare this Lease to be in default and immediately take one or more of the following actions:
|
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| | (A) | proceed by appropriate court action or actions either at law or in equity to enforce performance by Lessee of the applicable covenants and terms of this Lease or to recover from
Lessee any and all damages or expenses which Lessor shall have sustained by reason of Lessee’s default under this Lease or on account of Lessor’s enforcement of its remedies hereunder; |
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| --- | --- | --- |
| | (B) | terminate Lessee’s rights under this Lease, whereupon Lessee, at Lessee’s sole cost and expense, shall cause the Aircraft to be delivered to Lessor in accordance with
Article 14; |
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| --- | --- | --- |
| | (C) | declare all rentals and other sums payable by Lessee under this Lease immediately due and payable; |
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| | (D) | take possession of the Aircraft, whereupon Lessee’s right to the possession of the Aircraft shall terminate; | | 188 |
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| --- | --- | --- |
| | (E) | apply for a court order authorizing or directing either Article 13.2 (B) or (D); |
17 | 189 |
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| --- | --- | --- |
| | (F) | pending final determination of any claim arising under the Lease obtain an order or orders for any or all of the following: preservation of the Aircraft; possession, control or
custody of the Aircraft; immobilization of the Aircraft; and/or lease or management of the Aircraft and the income therefrom; and/or |
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| --- | --- | --- |
| | (G) | enforce any other right or remedy afforded to Lessor under applicable law (including but not limited to the Cape Town Treaty). |
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| 13.3 | In the event of any such repossession as provided above in Article 13.2, Lessor may either lease the Aircraft or any portion thereof on such terms and to such persons as Lessor may
elect, or sell the Aircraft or any portion thereof at public or private sale, following commercially reasonable notice of sale, but without presence of the Aircraft at the place of sale. If the Aircraft is leased, sold or otherwise disposed of
pursuant to this Article 13.3, Lessee shall be liable to Lessor for and Lessor may recover from Lessee, as liquidated damages for the breach of this Lease and not as a penalty, the amount by which the proceeds of such lease, sale or disposition
(less the expense of retaking, repairing, refurbishing, storing, servicing, flight testing, demonstrating, leasing, selling or otherwise disposing of the Aircraft) is less than the sum of: |
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| --- | --- | --- |
| | (A) | all due and unpaid monthly rental payments for the Aircraft through the date of repossession; | | 190 |
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| | (B) | the applicable fair market value of the Aircraft (in the event that the Aircraft is sold pursuant to this Article 13.3); |
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| | (C) | an amount equal to all accrued Impositions and other amounts payable hereunder by Lessee with respect to the Aircraft; |
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| | (D) | all costs, expenses, losses and damages incurred or sustained by Lessor by reason of Lessee’s default hereunder; and |
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| | (E) | interest at 1.25 times the prime interest rate charged by Bank of America (New York, N.Y.), on each of the foregoing and on all sums not paid when due under any provision of this
Lease. |
If on the date of such termination or repossession the Aircraft has been lost, destroyed, stolen, taken or damaged, or
is subject to any levy, seizure, assignment, imposition, application for sale for or by any creditor or governmental agency, Lessee shall also be liable to Lessor for the amounts specified in Article 10, less the amount of any insurance recovery
received by Lessor in connection therewith. Lessee hereby waives any and all rights to notice and to a judicial hearing with respect to the repossession of the Aircraft by Lessor in the event of a default hereunder by Lessee. Lessee also expressly
waives any damages occasioned by Lessor’s taking of possession of the Aircraft as provided above in Article 13.2.
18 | 191 |
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| --- | --- |
| 13.4 | No right or remedy conferred upon or reserved to Lessor by this Lease shall be exclusive of any other right or remedy herein or provided by law or at equity. All rights and remedies
conferred upon Lessor by this Lease or by law shall be cumulative and in addition to every other right and remedy available. |
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| --- | --- |
| 13.5 | In the event of any Event of Default, Lessee will pay to Lessor a reasonable sum for attorneys’ fees and such costs and expenses as shall have been incurred by Lessor in the
enforcement of any right or privilege hereunder. |
ARTICLE 14: RETURN OF AIRCRAFT
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| --- | --- |
| 14.1 | Upon the expiration or termination of this Lease, Lessee will, unless a loss or damage to the Aircraft has occurred, at its expense and within forty-eight (48) hours:
(i) redeliver the Aircraft and all Technical Records to Lessor at such airport facility located within the continental U.S. as Lessor may in its sole discretion designate; (ii) cause the Aircraft and all Technical Records to satisfy and
comply with all the provisions of Article 14.2; (iii) cause the Aircraft to be free and clear of all security interests, registrations and liens (other than liens caused by Lessor); and (iv) cause the following items relating to the
Aircraft to be delivered to Lessor: |
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| --- | --- | --- |
| | (A) | All records of maintenance, preventative maintenance, alterations and major repairs; | | 192 |
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| --- | --- | --- |
| | (B) | All airframe and engine logbooks endorsed for current total time and cycles for the airframe, total time and cycles for each engine and an entry for total time and cycles since
overhaul and hot section inspection for each engine. The airframe logbook must include all appropriate endorsements (i.e. maintenance releases) verifying that the avionics have been periodically tested and inspected in accordance with all applicable
provisions of the FAR requirements and Lessee’s Maintenance Program; |
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| --- | --- | --- |
| | (C) | A current written summary certified by an FAA-licensed mechanic listing the status of all applicable Airworthiness Directives, Mandatory Service Bulletins, and Service Bulletins for
the airframe, engines and appliances; and |
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| --- | --- | --- |
| | (D) | A written summary certified by an FAA-licensed mechanic of the current status of life limited and/or overhauled components for the airframe, engines (in accordance with the
Manufacturer’s recommended intervals), engine accessories and appliances as defined in the most current revision(s) of all Manufacturers’ maintenance publications applicable to the Aircraft. | | 193 |
agreement_14.md | In addition, Lessee must provide the following documentation and data for each component having an overhaul or inspection requirement of life limit, which
components are identified in pertinent sections of Lessee’s Maintenance Program applicable to the Aircraft as follows: (i) an airworthiness release certificate or maintenance release tag, (ii) the vendor work order or copy thereof
verifying the details of each component overhaul, and (iii) an appropriate record certifying the date and expended time status of the component when installed (i.e. copy of log or inspection squawk card). The three items identified in the
preceding sentence must be properly organized and provided on board the Aircraft at the time it is returned to Lessor in order for the Aircraft to satisfy the requirements of this Article 14.
19 | 194 |
agreement_14.md | To the extent not covered above, Lessee will also deliver to Lessor all work cards, computerized
maintenance history, component serviceability tags, STCs, 337s, NDT radiographs, maintenance manuals, structural repair manuals, flight manuals, and crew manuals in an acceptable media, including CD-ROM. All manuals or other documents delivered to
Lessor which are subject to periodic revision will be fully up-to-date and current to the latest revision standard of any particular manual or document. If the Aircraft is on a computerized maintenance program, such program will be up-to-date in
accordance with the Manufacturer’s recommended maintenance schedule and fully assignable to Lessor at redelivery.
Lessee acknowledges
that each of the items described above must be provided to Lessor upon return of the Aircraft, regardless of whether Lessee has conducted its periodic inspections of the Aircraft pursuant to pertinent sections of Lessee’s Maintenance Program or
in accordance with an inspection program approved by the FAA. Lessee hereby expressly waives its right of objection to the right of Lessor under this Agreement to demand redelivery of the Aircraft and logbooks upon an Event of Default being notified
by Lessor to Lessee.
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| --- | --- |
| 14.2 | Upon the expiration or termination of this Lease, including by the sale of the Aircraft to a third party, Lessee (at its sole cost and expense) shall cause the Aircraft to comply
with each of the following provisions at the time it is redelivered to Lessor: |
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| --- | --- | --- |
| | (A) | General Conditions | | 195 |
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| | (A) | General Conditions |
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| --- | --- | --- |
| | (1) | The Aircraft will be in an airworthy and fully serviceable condition with all systems fully functional and operational. The Aircraft will have no airworthiness or safety of flight
discrepancies, and no carry-over or deferred defects of any kind in existence. |
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| --- | --- | --- |
| | (2) | The Aircraft will comply with the Manufacturer’s original specifications and have installed the full complement of engines and other equipment, parts, accessories and loose
equipment as installed in the Aircraft at delivery to Lessee. Any aircraft system added or modified by supplemental modification action will also be fully operational and functional. |
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| --- | --- | --- |
| | (3) | The Aircraft will have a current FAA Certificate of Airworthiness. In this regard, the Certificate of Airworthiness will be currently validated by appropriate entries duly executed
by currently licensed FAA inspectors in all applicable logbooks for the Aircraft. Lessee will be solely responsible for all costs and expenses incurred in obtaining the Certificate of Airworthiness, including but not limited to, all aircraft
inspections required for issuance of the Certificate of Airworthiness. |
20 | 196 |
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| --- | --- | --- |
| | (4) | The Aircraft will be current and in complete compliance with the Manufacturer’s recommended Maintenance Program (ref. FAR 91.409[f][3]), specifically including all applicable
Manufacturer’s recommended maintenance schedules for the airframe, engines, propellers and avionics. The Aircraft will be in complete compliance with all requirements of the FAA. All of the Aircraft’s maintenance will be signed off in
accordance with the regulations of the FAA and the above designated inspection program. |
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| --- | --- | --- |
| | (5) | (i) Compliance with Maintenance Schedule: All of the Aircraft’s airframe, engine (including hot section inspections), propeller and avionic component overhaul periods,
mandatory life limitations and other specifications will be complied with pursuant to the applicable Manufacturer’s recommended maintenance schedule. |
(ii) Engines: All maintenance on the Engines shall be current and up-to-date, and Lessee shall have complied with all requirements stipulated above in Article 7.8 (Engine Maintenance Costs and Consumption Fee)
and Article 7.9 (Substitution and Ownership of Parts and Engines). | 197 |
agreement_14.md | (iii) Life Limited Components: The Aircraft (excluding only its
engines) shall be in no worse condition upon redelivery by Lessee to Lessor than the condition it was in at the time it was delivered by Lessor to Lessee at the inception of the Lease, reasonable wear and tear excepted. The standard for determining
Lessee’s compliance with this requirement will be the Aircraft’s various life limited components identified in Chapters 4 and 5 of the Beech 1900D maintenance manual. Thus, at redelivery, each life limited component must have no less life
remaining on the component than said component had at the time the Aircraft was delivered to Lessee. Should any life limited component fail to meet the above standard, Lessee will either (a) replace the non-compliant component with another
component of like kind which meets the above standard, or (b) pay to Lessor a financial adjustment with respect to such non-compliant component in an amount equal to the cost of replacing the non-compliant component based upon Lessor’s
typical cost for overhauling such component (“Overhaul Cost”), which Overhaul Cost will be prorated to an amount equal to the amount of life (as a percentage) that was remaining on the non-compliant component at the time the
Aircraft was delivered to Lessee less the amount of life (as a percentage) that is remaining on the non-compliant component at the time the Aircraft is redelivered to Lessor. For sake of clarity, the Engines shall not be subject to the requirements
of this subclause 5(iii), but the Engines shall be subject to the provisions of subclauses 5(i), 5(ii) and 5(iv) of the present Article 14.2(A).
21 | 198 |
agreement_14.md | (iv) Documentation:Lessee will provide evidence to Lessor, in such form and substance as
is consistent with generally accepted industry practice and standards, of its compliance with the requirements of items (i), (ii) and (iii) above, such evidence to include “yellow” tags, release certificates, certificates of
conformance or other such documentation verifying the origin and condition of components at installation. A serial number verification of all components will be performed. In the event documentation does not exist to verify the origin and condition
of components at installation, Lessee will overhaul and/or replace all such components with components in a zero-time or fully overhauled condition.
| | | |
| --- | --- | --- |
| | (6) | All Airworthiness Directives, Service Bulletins, Mandatory Service Bulletins and other mandatory orders issued by the FAA or the Manufacturer affecting the Aircraft’s airframe,
engines, propellers and avionics which exist at the time of return will be fully complied with and satisfied. |
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| --- | --- | --- |
| | (7) | A current Phase Inspection will have been performed on the Aircraft by an FAA authorized Certified Repair Station acceptable to Lessor immediately preceding redelivery in the manner
stipulated in the Manufacturer’s recommended Maintenance Program with all discrepancies discovered corrected by Lessee. Lessor acknowledges that Lessee’s repair facility is acceptable, provided that Lessee maintains its Part 121 and Part
145 certifications. | | 199 |