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agreement_28.md | (a) Rent. Section 3.3 is hereby deleted in its entirety and replaced with the following provision:
The Lessee shall pay rent in an amount equal to the Hourly Rent specified in Schedule A attached hereto (which amount may be modified from time
to time upon mutual agreement of the parties hereto by executing a supplement in the form attached hereto as Schedule A-1) 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. In the event the Lease is terminated by either party pursuant to Section 3.1, Lessee shall pay upon demand all outstanding Hourly Rent for each used Flight Hour.
(b) Schedule A-1. Schedule A-1 shall be added to the end of Schedule A to the Lease Agreement and shall be read as set forth in Annex A to
this Amendment.
1 | 1200 |
agreement_28.md | 3. Miscellaneous. Except as modified herein, all terms and conditions of the Lease Agreement shall remain
in full force and effect and this Amendment and the Lease Agreement shall be considered to be the Lease Agreement as of the date hereof.
4.
Counterparts. This Amendment may be executed in two or more counterparts, each of which shall be an original, but all of which shall constitute but one and the same instrument.
[Signature Page Follows]
2
---
IN WITNESS WHEREOF, Lessor and Lessee have caused this Amendment No. 1 to the Lease
Agreement to be executed by their duly authorized representatives as of the date first above written.
| | | | | | | | | |
| --- | --- | --- | --- | --- | --- | --- | --- | --- |
| | | | | | | | | |
| **LESSEE:** **Carlyle
Investment Management L.L.C.** | | | | **LESSOR:** **Falstaff
Partners, LLC** |
| | | | | |
| By: | | /s/ Jeffrey W. Ferguson | | | | By: : | | /s/ David M. Rubenstein |
| Name: | | Jeffrey W. Ferguson | | | | Name: | | David M. Rubenstein |
| Its: | | General Counsel | | | | Its: | | |
3 | 1201 |
agreement_28.md | ANNEX A TO AMENDMENT NO. 1 TO THE LEASE AGREEMENT
**NON-EXCLUSIVE AIRCRAFT LEASE AGREEMENT**
**Schedule A-1**
**Supplement No. to Non-Exclusive Aircraft Lease Agreement**
Supplement No. dated ,
20 (this “Supplement”), is between **Falstaff Partners, LLC** (“Lessor”), and **Carlyle Investment Management L.L.C.** (“Lessee”) and relates to that certain Non-Exclusive Aircraft
Lease Agreement dated as of December 31, 2012 (as amended, modified and supplemented, the “Lease”).
**WHEREAS**, Lessor and Lessee have
agreed to modify the Hourly Rent pursuant to Section 3.3 of the Lease.
**NOW, THEREFORE**, in consideration of the premises and other good and
sufficient consideration, Lessor and Lessee hereby agree as follows:
As of the date of execution of this Supplement, the Hourly Rent shall be
$ , which shall supersede the Hourly Rent listed on Schedule A hereto (or otherwise agreed to by the parties in a supplement entered into prior to the date hereof).
All of the terms and provisions of this Supplement are hereby incorporated by reference in the Lease to the same extent as if fully set forth therein.
This Supplement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all
such counterparts shall together constitute but one and the same instrument.
[Signature Page Follows]
4 | 1202 |
agreement_28.md | **IN WITNESS WHEREOF**, the Lessor and the Lessee have each caused this **Supplement No.
to the Non-Exclusive Aircraft Lease Agreement** to be duly executed as of the date set forth above.
| | | |
| --- | --- | --- |
| | | |
| LESSOR: |
| |
| Falstaff Partners, LLC |
| | |
| By: | | |
| Print: | | |
| Title: | | |
| |
| LESSEE: |
| |
| Carlyle Investment Management L.L.C. |
| | |
| By: | | |
| Print: | | |
| Title: | | |
5 | 1203 |
agreement_29.md | EX-10.20
3
d447222dex1020.htm
EXHIBIT 10.20
Exhibit 10.20
**Exhibit 10.20**
**NON-EXCLUSIVE AIRCRAFT LEASE AGREEMENT**
Dated as of the 26th day of
December 2012,
between
**ORANGE CRIMSON AVIATION, L.L.C.**
as Lessor,
and
**CARLYLE
INVESTMENT MANAGEMENT L.L.C.**
as Lessee,
concerning one (1) 2008 Gulfstream G-550 aircraft bearing U.S. registration number N385WL (to become N554DG), and manufacturer’s serial number 5196
**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:***
provide notice of the departure airport and proposed time of departure
of said first flight, by telephone or 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.*** | 1204 |
agreement_29.md | This **NON-EXCLUSIVE AIRCRAFT LEASE AGREEMENT** (the “Agreement”) is entered into as of
December 26, 2012 (the “Effective Date”), by and between **Orange Crimson Aviation LLC.** (“Lessor”), and **CARLYLE INVESTMENT MANAGEMENT L.L.C.** (“Lessee”).
**W I T N E S S E T H :**
**WHEREAS**, Lessor is, as of the Effective Date of this Agreement, the registered owner of the Aircraft described and referred to herein;
**WHEREAS**, Lessee desires to lease from the Lessor, and Lessor desires to lease to Lessee, the Aircraft, upon and subject to the
terms and conditions of this Agreement; and
**WHEREAS**, during the term of this Agreement, the Aircraft may be subject to
concurrent leases to other lessees.
**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 agree as follows:
**SECTION 1.
DEFINITIONS**
| | |
| --- | --- |
| 1.1 | The following terms shall have the following meanings for all purposes of this Agreement: |
**“Aircraft”** means the Airframe and the Engines. Such Engines shall be deemed part of the “Aircraft” whether or
not from time to time attached to the Airframe or on the ground. | 1205 |
agreement_29.md | **“Airframe”** means that certain Gulfstream
G-550 aircraft bearing U.S. registration number N385WL (to become N554DG), and manufacturer's serial number 5196 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 FARs, the Federal Aviation Act of 1958 as amended, and Title 49, Subtitle VII of the United States Code.
**“Business Day”** means any day of the year in which banks are not authorized or required to close in the location of
Lessor's address for notification.
**“Engines”** means two (2) Rolls-Royce Deutschland GmbH model BR700-710
C4-11 engines bearing manufacturer’s serial numbers 15495 and 15496 together with any and all Parts so long as the same shall be either incorporated or installed in or attached to such Engine. An Engine shall remain leased hereunder whether or
not from time to time attached to the Airframe or on the ground.
-2- | 1206 |
agreement_29.md | **“FAA”** means the Federal Aviation Administration of the United States
Department of Transportation or any successor agency.
**“FARs”** means collectively the Aeronautics Regulations
of the Federal Aviation Administration and the Department of Transportation, as codified at Title 14, Parts 1 to 399 of the United States Code of Federal Regulations.
“**Flight Crew**” has the meaning specified in Section 5.3 of this Agreement.
**“Flight Hour”** means each flight hour of use of the Aircraft by Lessee, as recorded on the Aircraft hour meter and measured from the time the Aircraft wheel blocks are removed at the
beginning of a flight, to the time the Aircraft wheel blocks are replaced after the Aircraft lands at the end of a flight in one-tenth (1/10th) of an hour increments. Flight Hours also include any flight hours consumed in repositioning the Aircraft to
facilitate Lessee’s scheduled itineraries.
**“FSDO Notice”** means a FSDO Notification Letter in the form of
Schedule B attached hereto.
**“Lien”** means any mortgage, security interest, international 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.
**“Operating Base”** means Dulles International Airport, Virginia.
**“Operational Control”** has the same meaning given the term in Section 1.1 of the FARs. | 1207 |
agreement_29.md | **“Operational Control”** has the same meaning given the term in Section 1.1 of the FARs.
**“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 FARs.
**“Rent Payment Date”** means the last Business Day of each calendar month.
**“Schedule Keeper”** means the person designated by Lessor to coordinate the scheduling of the Aircraft.
**“Taxes”** means all sales taxes, use taxes, retailer taxes, duties, fees, excise taxes (including, without limitation,
federal transportation excise taxes), or other taxes of any kind which may be assessed or levied by any Taxing Jurisdiction as a result of the lease of the Aircraft to Lessee, or the use of the Aircraft by Lessee.
**“Taxing Jurisdictions”** means any federal, state, county, local, airport, district, foreign, or other governmental
authority that imposes Taxes.
**“Term**” means the term of this Agreement set forth in Section 3.1.
-3- | 1208 |
agreement_29.md | **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 | **Delivery**. The Aircraft shall be delivered by Lessor to the Lessee at the Operating Base or at such other location that is mutually agreeable by Lessor and Lessee
prior to each use of the Aircraft **in “AS IS”, “WHERE AS” condition subject to each and every disclaimer of warranty and requirements as set forth in Section 4.3 hereof**. Upon each such delivery, the United States
standard airworthiness certificate issued for the Aircraft shall be present on board the Aircraft, and said standard airworthiness certificate shall be effective in accordance with FAR 21.181(a)(1). 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, terrorism, civil commotion, strikes or labor disputes, weather conditions, or acts of God.
| | 1209 |
agreement_29.md | | | |
| --- | --- |
| 2.3 | **Non-Exclusivity.** Lessee and Lessor acknowledge that the Aircraft is leased to Lessee on a non-exclusive basis, and that the Aircraft shall, at other times, be
operated by Lessor and may be otherwise subject to lease to others during the Term at Lessor’s sole discretion. During any period during which the Lessor or any other person or entity is utilizing the Aircraft, Lessee’s leasehold rights to
possession of the Aircraft under 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**. The Term shall commence on the Effective Date, and be effective for a period of one (1) year. At the end of the first one (1) year period or any
subsequent one (1) year period, the Term shall automatically be renewed for an additional one (1) year period, unless terminated by either party. Either party may terminate this Agreement with or without cause upon forty-eight
(48) hours notice to the other party; provided, however, that Lessee shall be permitted to complete any scheduled use of the Aircraft which has commenced. | | 1210 |
agreement_29.md | -4- | 1211 |
agreement_29.md | | | |
| --- | --- |
| 3.2 | **Scheduling**. Lessee’s use of the Aircraft during the Term of this Agreement is non-exclusive. The parties agree as follows: |
| | | |
| --- | --- | --- |
| | (a) | Use by Lessor and Other Lessees. Lessor and Lessee agree that Lessor may lease the Aircraft to one or more other lessees during the Term on a non-exclusive
basis, that Lessor has the absolute right to determine the availability of the Aircraft for Lessee and that Lessor’s use of the Aircraft shall have priority over the availability of the Aircraft for lease to Lessee or any other party. Lessor
agrees that at such times as the Aircraft is not undergoing maintenance or being used by Lessor, Lessee and all other lessees of the Aircraft shall have equal rights to use of the Aircraft and that all use of the Aircraft shall be scheduled on a
“first come, first served” basis; provided, however, that Lessee and all other lessees shall cooperate in good faith on all scheduling matters and shall use their respective best efforts to avoid scheduling conflicts involving the
Aircraft. |
| | | |
| --- | --- | --- |
| | (b) | Designation of Schedule Keeper. Lessor shall advise Lessee of the individual or entity that will coordinate the scheduling of the Aircraft.
|
| | | |
| --- | --- | --- |
| | (c) | 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. | | 1212 |
agreement_29.md | | | |
| --- | --- |
| 3.3 | **Rent**. The Lessee shall pay rent 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. The amount of Hourly Rent paid during the calendar year (or prorated portion thereof) shall be compared to the actual utilization costs of the Aircraft at the end of each calendar year beginning December 31, 2013. If the actual
utilization costs exceed the amount of Hourly Rent paid, Lessee shall pay the amount of such excess to Lessor by the Rent Payment Date in January of the immediately following year. If the amount of Hourly Rent paid during the calendar year (or
prorated portion thereof) exceeds the actual utilization costs, Lessor shall apply the amount of such excess to the account of Lessee for credit against future Hourly Rent which is due under this Agreement. 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. In the event the Lease is terminated by either party pursuant to Section 3.1, Lessee shall pay upon demand all outstanding Hourly Rent for each used Flight Hour. | | 1213 |
agreement_29.md | | | |
| --- | --- |
| 3.4 | **Taxes.** Neither 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. Lessee shall remit to Lessor all such Taxes together with each payment of rent pursuant to Section 3.3. |
**SECTION 4. REPRESENTATIONS AND WARRANTIES; DISCLAIMER OF 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 liability company 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 which shall in any material way affect Lessee’s financial status as of the date hereof, 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 action and do not
-5- | 1214 |
agreement_29.md | 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.
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 Lessee will not permit the Aircraft to be
operated in any manner 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 statute, regulation, ordinance, or other law.
| | |
| --- | --- |
| 4.2 | **Representations and Warranties of Lessor**. Lessor represents and warrants as of the date hereof and during the entire Term hereof as follows:
|
4.2.1 Lessor is a validly organized 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 hereof, or impair the execution,
delivery, or performance by Lessor of this Agreement. | 1215 |
agreement_29.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 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 Lessor may now have with other parties. | 1216 |
agreement_29.md | | | |
| --- | --- |
| 4.3 | **Disclaimer of Warranties.** THE AIRCRAFT IS BEING LEASED BY THE LESSOR TO THE LESSEE HEREUNDER ON AN “AS IS” BASIS. THE WARRANTIES AND
REPRESENTATIONS SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS OR WARRANTIES, AND LESSOR HAS NOT MADE AND SHALL NOT BE CONSIDERED OR DEEMED TO HAVE MADE AND LESSEE HEREBY WAIVES, RELEASES, DISCLAIMS AND RENOUNCES
ALL EXPECTATION OF OR RELIANCE UPON ANY WARRANTIES, OBLIGATIONS AND LIABILITIES OF LESSOR, EXPRESS, IMPLIED, ARISING BY LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE WITH RESPECT TO THE DESIGN, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR USE
OF THE AIRCRAFT. LESSOR SHALL HAVE NO RESPONSIBILITY OR LIABILITY TO LESSEE OR ANY OTHER PERSON WITH RESPECT TO ANY OF THE FOLLOWING, REGARDLESS OF ANY NEGLIGENCE OR FAULT OF LESSOR: (A) ANY LIABILITY, LOSS OR DAMAGE CAUSED OR ALLEGED TO BE
CAUSED DIRECTLY OR INDIRECTLY BY THE AIRCRAFT OR ANY COMPONENT OF THE AIRCRAFT OR BY ANY INADEQUACY THEREOF, ANY DEFICIENCY OR DEFECT IN THIS AGREEMENT OR ANY OTHER CIRCUMSTANCES IN CONNECTION WITH THE AIRCRAFT OR THIS AGREEMENT; (B) THE USE,
OPERATION OR PERFORMANCE OF THE AIRCRAFT OR ANY COMPONENT OF THE AIRCRAFT OR ANY RISKS RELATING THERETO; OR (C) ANY |
-6- | 1217 |
agreement_29.md | | | |
| --- | --- |
| |
INTERRUPTION OF SERVICE, LOSS OF BUSINESS OR ANTICIPATED PROFITS OR CONSEQUENTIAL DAMAGES. LESSEE SHALL INDEMNIFY, DEFEND AND HOLD LESSOR HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, ACTIONS,
SUITS, PROCEEDINGS, INJURIES (OR DEATH), DAMAGES, LIABILITIES, COSTS OR EXPENSES (INCLUDING WITHOUT LIMITATION REASONABLE ATTORNEYS’ FEES) ARISING FROM OR IN ANY WAY RELATING TO LESSEE’S LEASE OR POSSESSION OF THE AIRCRAFT DURING THE TERM
AND SUCH INDEMNIFICATION SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT. |
**SECTION 5. REGISTRATION,
USE, OPERATION, MAINTENANCE AND POSSESSION**
| | |
| --- | --- |
| 5.1 | **Title and Registration**. Title to the Aircraft shall remain vested in Lessor at all times during the Term to the exclusion of Lessee and that Lessor shall have
only such rights as shall be specifically set forth herein. Lessor represents that as of the date of this Agreement the Aircraft is, and throughout the Term the Aircraft shall remain, lawfully registered as a civil aircraft of the United States.
| | 1218 |
agreement_29.md | | | |
| --- | --- |
| 5.2 | **Use and Operation**. Except as otherwise expressly provided herein, Lessee shall be solely and exclusively responsible for the use, operation and control of the
Aircraft while in its possession during the Term of this Agreement. Lessee shall operate the Aircraft in accordance with the provisions of Part 91 of the FARs and shall not operate the Aircraft in commercial service, as a common carrier, or
otherwise on a compensatory or “for hire” basis except to the limited extent permitted under Subpart F of Part 91 of the FARs, if applicable. Lessee agrees not to operate or locate the Airframe or any Engine, or suffer 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. Lessee agrees not to knowingly operate the
Airframe or any Engine or knowingly permit the Airframe or any Engine to be operated during the Term except in operations for which Lessee is duly authorized, or to knowingly 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 use or operate the Aircraft 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 law nor shall it be used during the existence of any known defect except in accordance with the FARs. | | 1219 |
agreement_29.md | | | |
| --- | --- |
| 5.3 | **Operating Costs.** Except as otherwise provided herein, Lessor shall pay certain fixed and variable costs of operating the Aircraft, including, without limitation,
all costs of insurance, hangarage at the Operating Base, maintenance and inspections, overhauls, oil and other lubricants. The foregoing notwithstanding, Lessee shall, at its own expense, (i) pay costs of fuel required for operation of
Lessee’s flights, (ii) pay standard catering costs, (iii) locate and retain (either through direct employment or contracting with an independent contractor for flight services) all pilots and other cabin personnel (including mechanic)
required for Lessee’s operations of the Aircraft (collectively the “Flight Crew”), and (iv) pay all miscellaneous out-of-pocket expenses incurred in connection with Lessee’s operation of the Aircraft, including, but not
limited to, landing fees, ramp fees, overnight hangar fees, de-icing costs, contaminant recovery costs, special-request catering and commissary costs, in-flight entertainment and telecommunications charges, ground transportation, Flight Crew travel
expenses, charts, manuals, and other publications obtained for the specific flight, and any other similar items. |
-7- | 1220 |
agreement_29.md | | | |
| --- | --- |
| 5.4 | **Maintenance of Aircraft**. Lessee shall perform, or cause to be performed, all pre- and post-flight inspections in accordance and as required by the FAA-approved
inspection program for the Aircraft. Lessee shall notify Lessor, or cause Lessor to be notified, of any maintenance requirement, dangerous condition, malfunction or worn part that may be discovered during any such inspection. Subject to the
foregoing, Lessor shall be solely responsible for arranging the performance of all maintenance and inspections of the Aircraft during the Term, shall ensure that the Aircraft is maintained in an airworthy condition during the Term, and shall
coordinate the performance of and payment for all repairs and maintenance of the Aircraft. |
| | |
| --- | --- |
| 5.5 | **Flight Crew**. All members of the Flight Crew shall be fully competent and experienced, duly licensed, and qualified in accordance with the requirements of
Applicable Law and all insurance policies covering the Aircraft. All members of the Flight Crew who are pilots shall be fully trained in accordance with an FAA-approved training program, including initial and recurrent training and, where
appropriate, contractor-provided simulator training. | | 1221 |
agreement_29.md | | | |
| --- | --- |
| 5.6 | **Operational Control.** THE PARTIES EXPRESSLY AGREE THAT LESSEE SHALL AT ALL TIMES WHILE THE AIRCRAFT IS IN ITS POSSESSION DURING THE TERM MAINTAIN OPERATIONAL
CONTROL OF THE AIRCRAFT, AND THAT THE INTENT OF THE PARTIES IS THAT THIS AGREEMENT CONSTITUTE A “DRY” OPERATING LEASE. Lessee shall exercise exclusive authority over initiating, conducting, or terminating any flight conducted pursuant to
this Agreement, and the Flight Crew shall be under the exclusive command and control of Lessee in all phases of such flights. |
| | |
| --- | --- |
| 5.7 | **Authority of Pilot in Command.** Notwithstanding that Lessee shall have operational control of the Aircraft during any flight conducted pursuant to this Agreement,
Lessor and Lessee expressly agree that the Pilot in Command member of the Flight Crew retained by Lessee pursuant to Section 5.3, in his or her sole discretion, may terminate any flight, refuse to commence any flight, or take any other
flight-related action which in the judgment of the Pilot in Command is necessitated by considerations of safety. The Pilot in Command shall have final and complete authority to postpone or cancel any flight for any reason or condition which in his
or her judgment would compromise the safety of the flight. No such action of the Pilot in Command shall create or support any liability for loss, injury, damage or delay to Lessor. | | 1222 |
agreement_29.md | | | |
| --- | --- |
| 5.8 | **Right to Inspect**. Lessor and its agents shall have the right to inspect the Aircraft 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. |
| | |
| --- | --- |
| 5.9 | **Modification of Aircraft**. Lessee shall not make or permit to be made any modification or alteration, improvement, or addition to the Aircraft without the express
written consent of Lessor. |
| | |
| --- | --- |
| 5.10 | **Fines, Penalties and Forfeitures**. Lessee shall be solely responsible for any fines, penalties or forfeitures relating in any manner to the operation or use of
the Aircraft by Lessee under this Agreement. |
-8- | 1223 |
agreement_29.md | **SECTION 6. CONDITION DURING TERM AND RETURN OF AIRCRAFT**
| | |
| --- | --- |
| 6.1 | **Return**. Upon completion of each use of the Aircraft by Lessee during the Term, Lessee shall return the Aircraft to the Lessor by delivering the same to the
Operating Base, fully equipped with all Engines installed thereon. Upon each such delivery, the Aircraft shall be in as good operating condition as at it was in when Lessor delivered the Aircraft to Lessee, ordinary wear and tear excepted, and the
United States standard airworthiness certificate issued for the Aircraft shall be present on board the Aircraft and said standard airworthiness certificate shall be effective in accordance with FAR 21.181(a)(1). Nothing contained in this
Section 6.1 may be interpreted to require Lessee to perform any maintenance or other obligation which is the responsibility of the Lessor pursuant to Section 5.4 hereof; provided, however, that Lessee shall be obligated to ensure that
Lessor is advised of any maintenance requirement, dangerous condition, malfunction or worn part that may be discovered during each period during the Term commencing with the delivery of the Aircraft to Lessee and terminating when the Aircraft has
been redelivered to Lessor in the condition required hereunder. |
**SECTION 7. LIENS** | 1224 |
agreement_29.md | **SECTION 7. LIENS**
| | |
| --- | --- |
| 7.1 | Lessee shall ensure that no Liens are created or placed against the Aircraft by Lessee or third parties as a result of Lessee’s or its agents’ or
representatives’ action or inaction. 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. |
**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 Two Hundred and
Fifty Million United States Dollars (USD$250,000,000.00) Combined Single Limit for the benefit of itself and Lessee in connection with the use of the Aircraft. Said policy shall be an occurrence policy and shall include Lessee as an operator and an
Additional Named Insured. |
| | |
| --- | --- |
| 8.2 | **Hull.** Lessor shall maintain aircraft hull insurance in the amount of Forty-Five Million United States Dollars (US$45,000,000.00) which the parties agree
shall be deemed to be the full replacement value of the Aircraft, and such insurance shall name Lessor and any first lien mortgage holder as loss payees as their interests may appear. Said policy shall contain a waiver of subrogation clause in favor
of all Additional Named Insureds. | | 1225 |
agreement_29.md | | | |
| --- | --- |
| 8.3 | **Insurance Certificates.** Lessor will provide Lessee with a Certificate of Insurance upon execution of this Agreement and thereafter reasonably upon request
therefor. |
| | |
| --- | --- |
| 8.4 | **Conditions of Insurance.** Each insurance policy required hereunder shall insure the interest of Lessee regardless of any breach or violation by
Lessor of any warranties, declarations, or conditions contained in such policies. Each such policy shall be primary without any right of contribution from any insurance maintained by Lessee. The geographic limits, if any, contained in each and every
such policy of insurance shall include at the minimum all territories over which Lessee will operate the Aircraft for which the insurance is placed. Each policy shall contain an agreement by the insurer that notwithstanding the lapse of any such
|
-9- | 1226 |
agreement_29.md | | | |
| --- | --- |
| |
policy for any reason or any right of cancellation by the insurer or Lessor, whether voluntary or involuntary, such policy shall continue in force for the benefit of Lessee for at least thirty
(30) days (or such lesser time as may be permitted in the case of War Risk Insurance, if such War Risk Insurance so requires) after written notice of such lapse or cancellation shall have been given to Lessee. Each policy shall contain an
agreement by the Insurer to provide Lessee with thirty (30) days' advance written notice of any deletion, cancellation, or material change in coverage. |
| | |
| --- | --- |
| 8.5 | **Insurance Companies.** Each insurance policy required hereunder 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 out of the policy of insurance or concerning the parties herein; and (ii) will respond to any claim or
judgment against Lessee 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 by a party hereto duly to observe or perform any of its obligations
hereunder, and at any time thereafter so long as the same shall be continuing, the other party may, at its option, declare in writing that this Agreement is in default; and at any time thereafter, so long as the outstanding default shall not have
been remedied, the non-defaulting party may cancel, terminate, or rescind this Agreement and may exercise any and all remedies available to it at law or in equity. | 1227 |
agreement_29.md | **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 by hand or on the next Business Day when sent by overnight courier or when transmitted by means of facsimile or other wire transmission (with request for assurance of receipt
in a manner typical with respect to communications of that type and followed promptly with the original thereof and a copy sent simultaneously therewith by first class mail, postage prepaid) in each case at the address set forth below:
|
| | | |
| --- | --- | --- |
| | | |
| **If to Lessor:** | | Orange Crimson Aviation, L.L.C. |
| | | 1001 Pennsylvania Ave., NW |
| | | Suite 200 |
| | | Washington, DC 20004 |
| | | Attn: Daniel A. D’Aniello |
| | |
| **If to Lessee:** | | Carlyle Investment Management L.L.C. |
| | | 1001 Pennsylvania Ave. NW |
| | | Suite 220 |
| | | Washington, DC 20004 |
| | | Attn: Jeffrey Ferguson |
-10- | 1228 |
agreement_29.md | **SECTION 11. EVENT OF LOSS AND INDEMNIFICATION**
| | |
| --- | --- |
| 11.1 | **Notification of Event of Loss**. In the event any damage to or destruction of the Aircraft shall occur, while the Aircraft is in the possession of Lessee, or in
the event of any whole or partial loss of the Aircraft during such time, 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. | 1229 |
agreement_29.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 fully to repair the Aircraft and, if so, the expected date the Aircraft will be fully repaired and available for Lessee’s use in accordance
with this Agreement, 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 its 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 the use of the Aircraft by Lessee to the extent of available insurance. |
**SECTION 12. MISCELLANEOUS** | 1230 |
agreement_29.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 |
-11- | 1231 |
agreement_29.md | | | |
| --- | --- |
| |
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 which renders any provision hereof prohibited or unenforceable in any respect. |
| | |
| --- | --- |
| 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 separate counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts 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 the party against which the enforcement of the change, waiver, discharge, or termination is sought. | | 1232 |
agreement_29.md | | | |
| --- | --- |
| 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 | **Governing Law.** This Agreement has been negotiated and delivered in the Commonwealth of Virginia and shall in all respects be governed by, and construed in
accordance with, the laws of the Commonwealth of Virginia, including all matters of construction, validity and performance, without giving effect to its conflict of laws provisions. |
| | |
| --- | --- |
| 12.11 | **Jurisdiction and Venue**. Each party hereby consents to the nonexclusive jurisdiction and venue of the state and federal courts serving the Commonwealth of
Virginia. Nothing in this Agreement shall, however, prohibit any party from seeking enforcement of this Agreement in any appropriate court and in any jurisdiction where the party against whom enforcement is sought is subject to personal jurisdiction
and where venue is proper. |
[Remainder of Page Intentionally Left Blank]
-12- | 1233 |
agreement_29.md | **SECTION 13. TRUTH IN LEASING**
| | |
| --- | --- |
| 13.1 | TRUTH IN LEASING STATEMENT UNDER SECTION 91.23 OF THE FARs. |
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 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. |
| | |
| --- | --- |
| x | 91.409 (f) (3): A current inspection program recommended by the manufacturer. | | 1234 |
agreement_29.md | | | |
| --- | --- |
| ¨ | 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 IN ACCORDANCE WITH THE PROVISIONS OF FAR:
CHECK ONE:
| | | | | | | |
| --- | --- | --- | --- | --- | --- | --- |
| | | | | | | |
| ¨ 91.409 (f) (1) | | ¨ 91.409 (f) (2) | | x 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 LESSEE 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. | 1235 |
agreement_29.md | 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, GENERAL AVIATION DISTRICT OFFICE, OR AIR CARRIER 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.
-13- | 1236 |
agreement_29.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: |
| |
| **Orange Crimson Aviation, L.L.C.** |
| | |
| By: | | /s/ Daniel A. D’Aniello |
| Print: | | Daniel A. D’Aniello |
| Title: | | Sole Member |
| | | |
| --- | --- | --- |
| | | |
| LESSEE: |
| |
| **Carlyle Investment Management L.L.C.** |
| | |
| By: | | /s/ Jeffrey W. Ferguson |
| Print: | | Jeffrey W. Ferguson |
| Title: | | General Counsel and Managing Director |
-14- | 1237 |
agreement_3.md | EX-10.1
2
dex101.htm
AIRCRAFT LEASE AGREEMENT
Aircraft Lease Agreement
**Exhibit 10.1**
**AIRCRAFT LEASE AGREEMENT**
**AIRCRAFT LEASE AGREEMENT** (“Agreement” or
“Lease”) made and dated for reference as of the 17th day of January 2007, at Carlsbad, California.
| | | | | |
| --- | --- | --- | --- | --- |
| | | | | |
| BETWEEN: | | Heckmann Enterprises, Inc. | | LESSOR |
| AND: | | K2 Inc. | | LESSEE |
**W I T N E S S E T H:**
Lessee has requested Lessor to provide, and Lessor is willing to provide the aircraft described in Appendix A annexed hereto for the purpose of leasing
the same to Lessee for the Term identified in Section 1.
Lessee shall lease the described aircraft from Lessor pursuant to and upon
the terms, conditions and provisions of this Agreement.
The parties hereto covenant and agree as follows:
The following terms, whenever used in this Agreement will have the following meanings, unless otherwise required by context:
“AIRCRAFT” means the one (1) Canadair Ltd. Challenger CL600-2B16 Airframe, bearing manufacturer serial number 5111 and FAA
Registration Number N502HE, as more fully described in Appendix A, along with the Engines, the Manuals and Technical Records, and the Parts, or one or more of the above as required by context. | 1238 |
agreement_3.md | “ENGINES” means two (2) General Electric CF 34 Engines, bearing manufacturer serial number 350421 on the left engine and 350402 on
the right engine.
“FLIGHT HOUR” shall mean each hour elapsing from the moment the wheels of the Aircraft leave the ground
on take off to the moment when the wheels of the Aircraft touch ground on landing. For the purposes of all calculations under this Agreement measured in Flight Hours, such hours including fractions thereof shall be measured in tenths of an hour.
“HANGAR” means the aircraft hangar owned by Lessor and located at Palm Springs International Airport, Palm Springs,
California, subject to change if approved in writing by Lessee.
“MANUALS AND TECHNICAL RECORDS” means all records,
manuals, technical data, logs and other materials and documents in relation to the Aircraft, as shall be required by the Aviation Authority or by applicable law to be kept or maintained in relation to the Aircraft.
1 | 1239 |
agreement_3.md | “PARTS” means all components, Engines, instruments, accessories, furnishings, and other
equipment of whatever nature.
“RENT COMMENCEMENT DATE” means the date rent initially starts on the Aircraft, as
identified in “Lease Payments,” Section 4.
“TOTAL LOSS” with respect to the Aircraft, Airframe or any
Engine shall mean any of the following events with respect to such property:
| | | |
| --- | --- | --- |
| | (a) | an actual or constructive total loss of such property; |
| | | |
| --- | --- | --- |
| | (b) | destruction or damage beyond repair, or rendition permanently unfit for normal use for any reason whatsoever; |
| | | |
| --- | --- | --- |
| | (c) | hijacking or theft thereof or disappearance thereof for a period in excess of ninety (90) consecutive days; |
| | | |
| --- | --- | --- |
| | (d) | the condemnation, confiscation, compulsory acquisition, seizure, requisition of title or taking of title to the Aircraft or Airframe or any Engine by any governmental entity; or
|
| | | |
| --- | --- | --- |
| | (e) | the deprivation, requisition or taking for use of the Aircraft or Airframe or any Engine by any Governmental Entity or instrumentality or agency thereof for a period greater than
ninety (90) consecutive days. |
A Total Loss with respect to the Aircraft shall be deemed to have occurred if a Total
Loss has occurred with respect to the Airframe. | 1240 |
agreement_3.md | A Total Loss with respect to the Aircraft shall be deemed to have occurred if a Total
Loss has occurred with respect to the Airframe.
1. **TERM OF LEASE**.
This Agreement is for both the Aircraft and the Hangar. Subject to Lessee’s execution and delivery of the Acceptance Certificate attached hereto as
Exhibit B, this Agreement will commence immediately on delivery of the Aircraft to Lessee by Lessor on January 22, 2007. The Agreement will remain in effect until the 31st day of December, 2011, unless otherwise terminated under the terms of this Agreement (the “Term”). Either Lessor or Lessee shall have the right to
terminate this Agreement at any time upon not less than ninety (90) days prior written notice; provided that such termination shall not affect either party’s obligations hereunder for any period prior to such termination including, without
limitation, any party’s maintenance obligations set forth in Section 7.
2 | 1241 |
agreement_3.md | 2. **NATURE OF LEASE**.
The parties acknowledge and agree that it is their intent that this Lease be treated as a “true lease” for Federal income tax purposes.
3. **LESSOR’S WARRANTIES**.
a. Except as otherwise provided herein, the Aircraft is leased to Lessee hereunder “AS IS, WHERE IS” and Lessor does not make or give any warranties as to the Aircraft, its airworthiness, design, fitness or
condition, or as to any other matter or thing whatsoever except for warranty of right of quiet enjoyment, and all warranties are, to the extent permitted by law or otherwise provided herein, hereby expressly excluded, except Lessor represents and
warrants that it has the legal right to lease the Aircraft hereunder, that the entering into and performance of this Agreement by Lessor do not conflict with any contract or agreement to which Lessor is a party or by which it or its properties are
bound or affected, and that this Agreement is in compliance with all applicable federal and state laws with respect to the status of Lessor in its capacity as owner/lessor of the Aircraft and in its status as operator of the Aircraft when the
Aircraft is in the operational control of Lessor, its affiliates or agents as contemplated in Section 4(d).
b. Except as otherwise
expressly provided in this Agreement, Lessor shall not be liable to Lessee for any loss, cost, damage, or expense of any kind or nature, caused directly or indirectly, by the Aircraft or the use or maintenance thereof, or by any interruption of
service of whatsoever and howsoever caused, other than interruption of right of quiet enjoyment. | 1242 |
agreement_3.md | LESSOR LEASES THE AIRCRAFT TO LESSEE
HEREUNDER “AS IS” AND “WHERE IS”, AND NEITHER LESSOR NOR ANY SUCCESSOR IN INTEREST THERETO, BY ASSIGNMENT OR OTHERWISE, SHALL BE DEEMED TO HAVE MADE OR TO MAKE AND BY ACCEPTING THE AIRCRAFT HEREUNDER LESSEE HEREBY WAIVES,
RELEASES AND RENOUNCES ANY RIGHTS PREMISED UPON OR ANY RELIANCE UPON ANY REPRESENTATIONS, WARRANTIES, LIABILITIES OR GUARANTEES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE AIRCRAFT, AIRFRAME, ANY ENGINE, PART
OR OTHER THING DELIVERED, LEASED, OR TRANSFERRED HEREUNDER, INCLUDING BUT NOT LIMITED TO: (A) AIRWORTHINESS, CONDITION, VALUE, TITLE, DESIGN, OPERATION, MERCHANTABILITY, COMPLIANCE WITH SPECIFICATION, CONSTRUCTION, PERFORMANCE OR FITNESS FOR
USE; (B) THE ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE; (C) THE ABSENCE OF ANY INFRINGEMENT OF ANY PATENT, TRADEMARK OR COPYRIGHT; (D) THE QUALITY OF THE MATERIAL OR WORKMANSHIP; OR (E) (i) ANY
LIABILITY ARISING IN TORT OR CONTRACT, EXPRESS OR IMPLIED; (ii) ANY OBLIGATION OR LIABILITY ARISING FROM NEGLIGENCE, STRICT LIABILITY, OR PRODUCTS LIABILITY; (iii) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING
OR USAGE OF TRADE; OR (iv) ANY LOSS FROM INTERRUPTION OF USE, LOST PROFITS, LOST BUSINESS OR OTHER SPECIAL OR CONSEQUENTIAL DAMAGES. LESSOR HEREBY WAIVES, RELEASES AND RENOUNCES ANY CLAIMS FOR LOSS FROM INTERRUPTION OF USE, LOST PROFITS, LOST | 1243 |
agreement_3.md | BUSINESS OR OTHER SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF LESSOR’S RIGHTS TO USE THE AIRCRAFT DURING THE TERM OF THIS AGREEMENT. | 1244 |
agreement_3.md | 3 | 1245 |
agreement_3.md | 4. **LEASE PAYMENTS**.
a. Lessee shall pay Lessor rent in the amount of $30,000, such first payment being due on January 22, 2007 and subsequent rent payments being due on
the equivalent day of each succeeding month until the end of the Term.
b. On or before the 10th day of each calendar month, Lessee shall
provide Lessor with a written statement setting forth the number of Flight Hours for which the Aircraft has been used by Lessee and Lessor, respectively, during the immediately preceding calendar month.
c. All Rent payable under this Lease shall be paid in the full amount required to be paid hereunder without regard to any Tax, fines, levies or charges
whatsoever and paid in U.S. dollar funds consisting of lawful currency of the United States of America that shall be immediately available at Lessor’s U.S. bank account. | 1246 |
agreement_3.md | d. As additional Rent hereunder, subject always to Lessee’s prior right to use of the Aircraft, Lessor shall be entitled to use the Aircraft for
Lessor’s purposes during the Term of this Agreement. If Lessor desires to use the Aircraft, it shall give Lessee as much advance notice of such usage as is practicable. Provided that Lessee is not using the Aircraft for its purposes, Lessee
shall make the Aircraft available for Lessor’s use. Lessor and Lessee acknowledge, agree and understand that when Lessor is using the Aircraft for Lessor’s purposes, Lessor shall be completely responsible for and in control of the Aircraft
and Lessee shall not be responsible for and not in control of the Aircraft. To the extent that Lessor chooses to use flight crews employed by Lessee when Lessor is using the Aircraft, the flight crews will report to and take directions exclusively
from Lessor and, in all events, shall comply with the applicable Federal Aviation Regulations. At such times as Lessor uses the Aircraft, Lessor shall comply with the provisions of Sections 6(d) and 6(e) as if it were the “Lessee” and
shall comply with the provisions of all insurance policies maintained by Lessee pursuant to Section 8. At such times as Lessor uses the Aircraft, Lessor shall be responsible for all variable costs in connection with the operation of the
Aircraft, including, but not limited to, fuel, landing fees, “Smart Parts” fees, maintenance service plan fees, hangaring fees, catering, crew travel and quartering, flight telephone and expendable supplies. The Lessor and Lessee will
execute a delivery receipt in the form attached hereto as Appendix C when Lessor uses the Aircraft and returns the Aircraft to Lessee. With respect to operation of the Aircraft by Lessor, its affiliates or agents, if the Lessee, its officers, | 1247 |
agreement_3.md | directors, shareholders, employees, agents or representatives (“Lessee Parties”) shall suffer any Claims (as defined in Section 6(m)) that are not covered by insurance or warranty or are not attributable to normal or customary
operation of the Aircraft or which are attributable to Lessor’s breach of its obligations under this Lease, Lessor shall hold the Lessee Parties harmless with respect to such Claims. | 1248 |
agreement_3.md | 4 | 1249 |
agreement_3.md | e. Lessee’s and Lessor’s obligations hereunder shall be absolute and unconditional and shall
not be affected or reduced by any circumstances including, without limitation: (i) any set-off, counterclaim, recoupment, defense, or other right that Lessee may have against Lessor or any person for any reason whatsoever except for breach of
warranty to include but not limited to Lessee’s right of quiet enjoyment; (ii) any defect in the airworthiness, condition, design, operation, or fitness for use of, or any damage to or loss or destruction of, the Aircraft, unless such
defect in title actually or effectively prevents Lessee’s viable and efficient commercial use of the aircraft; (iii) any interruption or cessation in the use or possession of the Aircraft by Lessee or Lessor or availability thereof to
Lessee or Lessor for any reason arising out of or related to an act or omission of Lessee, or any person other than Lessor or entities acting through Lessor; (iv) any insolvency, bankruptcy, reorganization, or similar proceedings by or against
Lessor or Lessee; (v) any other circumstances or happening of any nature whatsoever, similar to any of the foregoing; or (vi) any Taxes, it being the express intention of Lessor and Lessee that amounts payable hereunder shall be payable
hereunder in all events unless the obligation to pay the same is terminated pursuant to the express provisions of this Lease. To the extent permitted by applicable law, Lessee hereby waives any rights it may now have or that may be conferred upon
it, by statute or otherwise, to terminate, cancel, quit or surrender this Lease except in accordance with the terms hereof. Notwithstanding the provisions of this Section 4(e), Lessee shall otherwise have the rights and remedies provided for in | 1250 |
agreement_3.md | this Lease against Lessor, *provided* that said rights shall not be asserted in an action to enforce this Lease in violation of the terms of this Lease. | 1251 |
agreement_3.md | f. Lessee and Lessor acknowledge that the rentals payable pursuant to Section 4(a) were determined based upon an assumed average annual usage by Lessee of 300 Flight Hours. Lessee and Lessor agree to negotiate in
good faith an adjustment to such rentals in the event that Lessee’s aggregate usage from the commencement of this Agreement through the end of any calendar year exceeds 120% of the product of 300 Flight Hours times the number of years elapsed
since the commencement of this Agreement.
5. **RETURN OF AIRCRAFT**.
Upon the termination of this Agreement, Lessee shall return the Aircraft to Lessor at such location in the continental United States as may be mutually
agreed upon by Lessor and Lessee, in the condition described in Appendix D.
The Aircraft shall be equipped and in the same configuration
as it was on delivery. All Manuals, Logs and Technical Records will be current and accurate with respect to the period of this Agreement. All modifications, alterations, and additions made to the aircraft during the Lease will be removed at
Lessee’s expense, except for those made pursuant to an Airworthiness Directive or service letter or bulletin issued by the Airframe or Engine manufacturer, and except for those designated by Lessor, with agreement of Lessee, to remain as part
of the Aircraft.
5 | 1252 |
agreement_3.md | Lessor will issue a certificate of acceptance once the conditions of this section have been complied with
to the reasonable satisfaction of Lessor.
6. **LESSEE’S COVENANTS**.
Lessee covenants with Lessor:
a. That the
Aircraft was selected by Lessee and that it is of a make, size, design and capacity desired by Lessee for the purposes intended by Lessee.
b. To keep and maintain the Aircraft in a fully operative and airworthy condition in conformity with any requirements or airworthiness directives which may from time to time be made by the manufacturers of the Aircraft, and in conformity
with all applicable laws, orders, rules, regulations, and directives of governmental departments, boards or authorities, relating to the maintenance or storage of the Aircraft. Maintenance costs and costs of complying with any airworthiness
directives shall be borne by Lessee and Lessor as provided in Section 7 hereof.
c. That, at Lessor’s risk and expense, Lessor or
its agent shall have the right at all reasonable times and on reasonable notice to fully inspect the Aircraft and any parts thereof, and any documents relating thereto to determine the condition of the Aircraft, and to further determine whether or
not Lessee is performing according to the covenants and conditions herein contained.
d. To operate the Aircraft at all times in conformity
with all the applicable laws, orders, rules, regulations, and authorities, domestic or foreign, and in conformity with any limitations or restrictions of performance which may from time to time be recommended by the manufacturers of the Aircraft,
and within the geographical limitations on operations of the Aircraft pursuant to applicable policies of insurance maintained by Lessee. | 1253 |
agreement_3.md | e. To permit the Aircraft to be operated only by certified pilots employed by Lessee or contracted by Lessee and who hold valid and subsisting licenses or permits appropriate to their duties, and who have at least the minimum total pilot
hours required by any policies of insurance on the Aircraft.
f. Not to use or operate the Aircraft or permit it to be used or operated
illegally or contrary to any applicable laws, regulations, orders, rules or directives of any power or government or agency thereof having jurisdiction, and to indemnify and hold Lessor, harmless from and against any and all actions, precautions,
administrative proceedings or similar assertions or threats in any way arising out of the custody, use or operation of the Aircraft during the Term of this Agreement and, subject to Lessee’s reasonable contest rights, to assume liability and
pay for any and all transgressions, defaults, fines, penalties or forfeiture incurred, suffered or assessed against Lessor or the Aircraft during the Term of this Agreement together with all legal fees, costs and expenses incidental to the foregoing
to the complete exoneration of Lessor.
6 | 1254 |
agreement_3.md | g. Not to sublease or otherwise transfer possession of the Aircraft or any Engine to any Person,
*provided* that, so long as no Event of Default shall have occurred and be continuing, Lessee may, upon notice to Lessor deliver possession of the Airframe or any Engine to the manufacturer thereof for testing or other similar purposes or to
any FAA-approved repair facility reasonably acceptable to Lessor for service, repair, maintenance or overhaul work of the Airframe or any Engine or any part thereof or for alterations or modifications in or additions to the Airframe or any Engine to
the extent required or permitted by the terms of this Lease.
h. To keep the Aircraft free and clear of all seizures, security interests,
forfeitures, liens, claims, privileges, debts, taxes, charges, pledges or encumbrances of any nature whatsoever applicable to any occurrence during the Term of this Agreement.
i. That if for any reason any part of the Aircraft is replaced with a similar part, or any part or attachment is added thereto, no matter by whom
manufactured, the part so replaced or added shall at once become the property of Lessor, to the same extent as all the original parts of the Aircraft, and with the same rights and powers of Lessor in all respects as if such part had been one of the
original parts thereof, and any such part added will be supported by complete records back to the original manufacture date. Any new part placed on the Aircraft shall be free of liens and shall be of same value and utility as the part being
replaced. | 1255 |
agreement_3.md | j. Subject to Lessee’s reasonable contest rights, to pay, when due, all license fees and other fees and assessments
necessary for the securing of licenses, certificates of registration and certificates of airworthiness and other similar permits for the operation of the Aircraft during the Term of this Agreement, and further, to pay, when due, all taxes, fees,
assessments or other levies now and hereafter imposed by any provincial, federal or local government upon the Aircraft, or upon the leasing, use or operation thereof (but not on the income of Lessor), whether assessed to Lessor, or to Lessee;
provided that upon payment of such fees, assessments, taxes or levies, Lessee will promptly deliver the receipts for such payments to Lessor, and that if Lessor pays any sum or sums constituting an obligation of Lessee under this Agreement, then the
amount of such payments shall be reimbursed on demand.
k. Subject to Sections 4(d) and 7 hereof, to furnish at its own cost and expense
all fuel, lubricants, and other material necessary for the operation of the Aircraft, pay all maintenance, storage, hangar (other than home base hangaring), landing, airport and customs charges and fees and all other charges of operation,
maintenance (except as otherwise provided herein), or storage of the Aircraft. | 1256 |
agreement_3.md | l. To assume custody of the Aircraft and full
responsibility for its operation and maintenance during the Term. In the event of a failure of any component (to include but not limited to any Engine), it is the responsibility of Lessee to remove, repair and re-install such item. Subject to
Section 7 hereof, if any Engine or other major component becomes non-repairable for any cause, it will be replaced with a replacement of equal value and utility with the same or improved performance ability the original, all with records
traceable back to manufacture, with clear warranty title in Lessor.
7 | 1257 |
agreement_3.md | m. Subject to Section 4(d), Lessee agrees to indemnify, reimburse, and hold harmless Lessor and its
successors, assigns, agents, employees, officers, directors, shareholders, servants and representatives (the “Indemnified Parties”) from and against any and all claims, damages, losses, liabilities, demands, suits, judgments, causes of
action, legal proceedings, penalties, fines, other sanctions, and any costs and expenses in connection therewith, including reasonable attorney’s fees and expenses (any and all of which are hereafter referred to as “Claims”) arising
from or relating to death or injuries to any Persons whomsoever (including without limitation Lessee’s employees) and for loss of or damage to any property whatsoever that in any way arises during the Term or which may result from or arise out
of or in relation to (i) the ownership, manufacture, purchase, delivery, redelivery, lease, possession, return, import, export, disposition, use, maintenance or operation of the Aircraft either in the air or on the ground; or (ii) any
defect in the Aircraft arising from the material of, or any article used therein, or from the design, testing or use thereof or from any maintenance, service, repair, overhaul or testing of the Aircraft; or (iii) any infringement of any patent;
or (iv) this Lease or any other transaction, approval or document contemplated hereby or given or entered into in connection herewith; *provided, however*, that upon payment in full to any party indemnified hereunder of any indemnities
contained in this Section 6(m) by Lessee, Lessee shall be subrogated to all rights and remedies that such indemnified party may have against any manufacturers, suppliers, overhaul agencies, sellers and/or prior lessees (and similar parties) of | 1258 |
agreement_3.md | the Aircraft and *provided, further*, that Lessee shall not be required to indemnify any of the Indemnified Parties against Claims arising out of such Indemnified Party’s willful misconduct or gross negligence or arising out of operational
control of the Aircraft by Lessor, its affiliates or agents pursuant to Section 4(d). Notwithstanding the preceding sentence, nothing contained herein is intended to invalidate, prejudice or otherwise compromise, Lessor’s rights and
benefits under the insurance required in this Lease or affect Lessor’s ability to obtain the benefits of such insurance. Lessee shall have the right to control the defense of any claims, subject to indemnification hereunder so long as no Event
of Default is continuing. No settlement of a Claim shall be made or be binding upon any party unless both Lessor and Lessee approve such settlement in writing, such consent not to be unreasonably withheld or delayed. Lessor shall notify Lessee of
any such Claim promptly after becoming aware thereof. | 1259 |
agreement_3.md | Lessee hereby waives, and releases the Indemnified Parties from, any Claims of
Lessee now or hereafter existing for or on account of or arising out of or in any way connected with injury to or death of personnel of Lessee, or loss or damage to property of Lessee, or the loss of use of any property, in each case that, after the
delivery of the Aircraft to Lessee, may result from or arise in any manner out of or in relation to the ownership, leasing, use, or operation of the Aircraft (other than operational control of the Aircraft by Lessor, its affiliates or agents),
either in the air or on the ground, or which may be caused by any defect in the Aircraft from the material of, or any article used therein or from the testing of the Aircraft regardless of when such defect may be discovered, whether or not the
Aircraft is at the time in the possession of Lessee, and regardless of such location of the Aircraft at any such time.
The indemnities
contained in this Section 6(m) shall continue in full force and effect notwithstanding the expiration of the Term with respect to the Aircraft or other termination of this Lease and are expressly made for the benefit of the Indemnified Parties
and shall be enforceable by the Indemnified Parties directly.
8 | 1260 |
agreement_3.md | n. To make rental and any other payments required by this Agreement when due.
o. To keep complete, accurate, and current technical records of all flights and maintenance of the Aircraft in English in accordance with applicable
rules and regulations of the FAA. The records shall be available for inspection by Lessor at any reasonable time, and become the property of Lessor upon return of the Aircraft.
p. To maintain all insurance required by this Agreement, and notify Lessor of any lapse, cancellation, or material adverse change in the insurance
coverage.
q. Lessee shall not knowingly use or permit the use of the Aircraft for the carriage of any goods, materials or items of cargo
that could reasonably be expected to cause damage to the Aircraft or that would not be adequately covered by the insurance required by this Agreement.
| | | |
| --- | --- | --- |
| | 7. | **ROUTINE MAINTENANCE, HEAVY MAINTENANCE, UNSCHEDULED MAINTENANCE AND AIRWORTHINESS DIRECTIVES.** |
a. With respect to all routine maintenance, based on an annual accounting of routine maintenance costs incurred during each calendar year, Lessee and
Lessor shall proportionately share the costs of such maintenance based upon the number of Flight Hours that each has used the Aircraft during such calendar year.
b. With respect to all scheduled heavy maintenance (including 60 month inspections and 6,000 hour overhaul of the Engines), Lessee and Lessor shall proportionately share the costs of such maintenance based upon the
number of Flight Hours that each has used the Aircraft since the last corresponding heavy maintenance visit (including for the purposes of this Section 7(b) any Flight Hours flown by Lessor and Lessee prior to the commencement of this
Agreement). | 1261 |
agreement_3.md | c. Except as provided in Section 4(d), with respect to unscheduled maintenance, the costs of which are not covered by
warranty or insurance, Lessee and Lessor shall proportionately share the costs of such maintenance based upon the number of Flight Hours that each has used the Aircraft (including for the purposes of this Section 7(c) any Flight Hours flown by
Lessor and Lessee prior to the commencement of this Agreement).
d. With respect to the costs of compliance with any airworthiness
directive applicable to the Aircraft, Lessee shall bear the costs of such compliance if the cost of such compliance does not exceed $50,000. If the cost of such compliance exceeds $50,000, Lessee and Lessor shall each bear 50% of the total cost of
the compliance with such airworthiness directive.
9 | 1262 |
agreement_3.md | | | | |
| --- | --- | --- |
| | 8. | **INSURANCE**. |
a. The Aircraft shall be at
Lessee’s risk throughout this Agreement; provided, however, that Lessee shall secure and maintain in effect, at Lessee’s expense throughout the Term, insurance policies reasonably acceptable to Lessor covering the Aircraft as follows:
| | | |
| --- | --- | --- |
| | (1) | Hull coverage in the name of Lessee including all risks, both in flight and not in flight, with a “loss payable” clause and a breach of warranty endorsement and a waiver
of subrogation, to the extent that Lessee has waived its rights of subrogation under this Agreement, in favor of Lessor and other customary endorsements reasonably requested by Lessor including coverage during the periods of time when Lessor is
using the Aircraft; provided that if repairs of damage are made, Lessee agrees to pay the deductible amount as provided in the policy covering the Aircraft; and |
| | | |
| --- | --- | --- |
| | (2) | Liability insurance including passenger liability written in the name of Lessee and naming Lessor as an additional insured, including coverage for Lessor during the periods of time
where Lessor is using the Aircraft. |
b. Lessee shall deliver certificates of insurance to Lessor specifying all coverage
required herein, in form and substance reasonably satisfactory to Lessor. Lessee shall cause certificates of insurance to be issued which list Lessor, its officers, directors, employees and agents as additional insureds, and agrees to cause to be
issued such additional certificates of insurance from time to time as may reasonably be required by Lessor to name other parties as may be identified by Lessor as additional insureds. | 1263 |
agreement_3.md | c. Minimum required coverage effective with acceptance of delivery by Lessee:
Hull All Risks $$11,000,000 (the “Insured Value”); Lessee and Lessor agree to negotiate in good faith to periodically adjust the Insured Value
to reflect the current fair market value of the Aircraft;
Public Liability Insurance, including third-party liability $ 200,000,000; and
Deductible $500,000.
d. In
the event of any insurance claims, all deductible amounts are to be paid by Lessee.
e. Lessee’s broker will notify Lessor and
Lessor’s Lender no less than thirty (30) days in advance of any lapse in coverage (ten days for nonpayment of premium), however caused, or any material adverse change in coverage. Further, in the event of non-payment of premiums, Lessor
may make any premium payments required to ensure that coverage is not interrupted, and any payments so made hereunder shall be payable forthwith by Lessee to Lessor.
10 | 1264 |
agreement_3.md | 9. **ASSIGNMENT.**
This Lease shall not be assigned, sold or sublet by either party without the prior written consent of the other party which shall not be unreasonably
withheld.
10. **DEFAULT.**
If Lessee defaults in payment of rent or in performance or observance of any of the covenants, terms, provisions, or conditions herein contained, and if such defaults shall not have been remedied within the grace periods identified in the
following paragraphs, or if Lessee files for bankruptcy under Chapter 11, or becomes insolvent, or in the event of cancellation of any insurance required to be maintained hereunder without replacement to insure no lapse in coverage exists, Lessor
may, at its option, terminate this Lease by written notice and take immediate possession of the Aircraft, all at the cost of Lessee.
The
following events shall constitute Events of Default:
a. Lessee shall fail to make any payment of Rent to Lessor within ten (10) days
of when due under this Lease;
b. there shall occur any termination of, material alteration in the scope of the coverage of, or material
reduction in the maximum amounts payable under any insurance maintained by Lessee pursuant hereto, or a change in coverage from an approved insurer to an unapproved insurer, or Lessee shall operate the Aircraft after having received notice that the
insurance required hereby has lapsed or has been cancelled;
c. Lessee shall fail to perform or observe any covenant, condition or
agreement to be performed by it hereunder and such failure shall continue for a period of thirty (30) days after written notice thereof from Lessor to Lessee; | 1265 |
agreement_3.md | d. Lessee shall consent to the appointment of or taking possession by a receiver, assignee, custodian, sequestrator, trustee or liquidator or other similar official of itself or of a substantial part of its property,
or Lessee shall fail to pay its debts generally as they come due or shall make a general assignment for the benefit of creditors, or Lessee shall commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with
respect to itself or its debts under any bankruptcy laws, as now or hereafter constituted or any other applicable federal or state bankruptcy, insolvency or other similar law or shall consent to the entry of an order for relief in an involuntary
case under any such law or Lessee shall file an answer admitting the material allegations of a petition in any such proceeding, or otherwise seek relief under the provisions of any now existing or future federal or state bankruptcy, insolvency or
other similar law providing for the reorganization or winding-up of corporations, or providing for an agreement, composition, extension or adjustment with its creditors;
e. any order, judgment, or decree shall be entered in any proceedings by any court of competent jurisdiction appointing, without the consent of Lessee, a receiver, trustee or liquidator of Lessee or of any substantial
part of its property, or any substantial part of the property of Lessee shall be sequestered, and any such order, judgment, decree, appointment, or sequestration shall remain in force, undismissed, unstayed, or unvacated for a period of sixty
(60) days after the date of entry thereof;
11 | 1266 |
agreement_3.md | f. a petition in a proceeding or case under the bankruptcy laws or other insolvency laws (as now or
hereafter in effect) shall be filed and shall not be withdrawn or dismissed within sixty (60) days thereafter, or, in case the approval of such petition by a court of competent jurisdiction is required, the petition as filed or amended shall be
approved by such a court as properly filed and such approval shall not be withdrawn or the proceeding dismissed within sixty (60) days thereafter, or a decree or order for relief in respect of Lessee shall be entered by a court of competent
jurisdiction in an involuntary case under the federal bankruptcy laws, as now or hereafter constituted, and such decree or order shall remain unstayed in effect for a period of sixty (60) days, or if, under the provisions of any law providing
for reorganization or winding-up of corporations that may apply to Lessee, any court of competent jurisdiction shall assume jurisdiction, custody or control of Lessee or of any substantial part of its property and such jurisdiction, custody or
control shall remain in force, unrelinquished, unstayed or unterminated for a period of sixty (60) days.
For the avoidance of doubt,
no Event of Default shall occur if such status arises out of the operational control of the Aircraft by Lessor, its affiliates or agents pursuant to Section 4(d). | 1267 |
agreement_3.md | Upon the occurrence of any Event of Default and any time thereafter so long as the same shall be continuing, Lessor may, at its option, declare this Lease to be in default and at any time thereafter, so long as Lessee
shall not have cured all outstanding Events of Default, Lessor may exercise one or more of the following remedies with respect to the Aircraft as Lessor in its sole discretion shall elect (and Lessee shall comply with any such election of remedies
by Lessor), to the extent available and permitted by, and subject to compliance with any mandatory requirements of applicable law then in effect:
| | | |
| --- | --- | --- |
| | (i) | cause Lessee, upon the written demand of Lessor and at Lessee’s expense to, and Lessee shall, promptly return the Aircraft to Lessor at such location in the continental United
States as Lessor may reasonably specify in the manner and condition required by, and otherwise in accordance with all of the provisions of, Section 5 as if such Airframe or such Engines were being returned at the end of the Term relating
thereto; or Lessor, at its option, may take immediate possession of and remove the Aircraft, all without liability of Lessor for or by reason of such entry or taking possession, whether for the restoration of damage to property caused by such taking
or otherwise. Lessee shall promptly execute and deliver to Lessor such instruments of title or other documents as Lessor may deem necessary or advisable to enable Lessor or its agent to obtain possession of the Airframes or the Engines,
*provided* that if Lessee shall for any reason fail to execute and deliver such instruments and documents after such request, Lessor shall be entitled to a judgment for specific performance, conferring the right to immediate possession upon
Lessor and requiring Lessee to execute and deliver such instruments and documents to Lessor; | | 1268 |
agreement_3.md | 12 | 1269 |
agreement_3.md | | | | |
| --- | --- | --- |
| | (ii) | sell or otherwise dispose of the Aircraft, at a commercially reasonable and reasonably prompt public sale and with notice to Lessee or advertisement, as Lessor may reasonably
determine, or use, operate, lease to others the Aircraft as Lessor, may reasonably determine, in any such case free and clear of any rights of Lessee except as hereinafter set forth in this Section 10. |
| | | |
| --- | --- | --- |
| | (iii) | whether or not Lessor shall have exercised, or shall thereafter at any time exercise, any of its rights under paragraph (i) or paragraph (ii) above with respect to the
Aircraft, Lessor, by written notice to Lessee specifying a payment date not earlier than ten (10) business days from the date of such notice, may cause Lessee to pay to Lessor, and Lessee shall pay to Lessor, on the payment date specified in
such notice, all installments of Rent then due (iii) rescind this Lease or exercise any other right or remedy which may be available under applicable law or proceed by appropriate court action to enforce the terms hereof or to recover damages
for the breach hereof. | | 1270 |
agreement_3.md | In addition, Lessee shall be liable for all amounts due hereunder before any termination hereof,
including all costs and expenses (including reasonable attorney’s fees and disbursements) incurred by reason of the occurrence of any Event of Default or the exercise of Lessor’s remedies with respect thereto including all costs and
expenses incurred in connection with the return of the Aircraft (or any damages suffered as a result thereof) in accordance with the terms of Section 5. No express or implied waiver by Lessor of any Event of Default hereunder shall in any way
be, or be construed to be, a waiver of any future or subsequent Event of Default.
| | | |
| --- | --- | --- |
| | 11. | **LOSS OR DAMAGE TO AIRCRAFT AND INJURY OR DAMAGE TO THE PERSON OR PROPERTY OF THIRD PARTIES INCLUDING PASSENGERS** |
In the event of loss or damage to or requisition of the Aircraft, or in the event of injury or damage being caused by the Aircraft to persons (including
passengers) or to property, Lessee shall immediately report said loss, injury or damage to Lessor, the insurance company or companies, and to any and all applicable governmental agencies, both federal and state, and shall furnish such information
and execute such documents as may be required and necessary to collect the proceeds under any insurance policy or to obtain the protection of any liability insurance policies. In this event, the rights, liabilities, and obligations of the parties
hereto shall be as follows: | 1271 |
agreement_3.md | If the Aircraft is partially damaged (and is not subject to a Total Loss), then this Agreement shall remain in
full force and effect with respect thereto. Lessee shall, at its own expense, fully repair the Aircraft in order that the Aircraft shall be placed in as good and the same condition as it was before the damage assuming it was in the condition
required hereby;
13 | 1272 |
agreement_3.md | provided, that if the Aircraft is partially damaged while it is in the operational control of Lessor, its affiliates or agents, Lessee shall only be
responsible for the repair of the Aircraft to the extent that insurance or warranty proceeds are available for such repair. Upon the damage being repaired and the Aircraft being in the same condition as before the damage, Lessor shall so long as no
Event of Default is continuing, reimburse Lessee to the extent, but not in excess of, the proceeds of insurance covering such damage received by Lessor, this payment to be contingent upon Lessee furnishing to Lessor the necessary information and
documents required for the recovery of the said insurance proceeds. Payment of this amount is further contingent upon the approval by Lessor of the repairs made by Lessee including the cost thereof and the Aircraft having been returned, as nearly as
possible, in the same condition as before said damage occurred assuming it was in the condition required hereby. Except when the Aircraft is in the operational control of Lessor, it affiliates or agents, any and all risk of loss or damage shall be
borne by Lessee. During any such period encompassed by repairs, all lease payments shall be made in full without offset or abatement.
In
the event that the Aircraft shall suffer a Total Loss, Lessee shall pay the Insured Value (as set forth in Section 8(c)) to Lessor upon the earlier to occur of the date on which insurance proceeds with respect thereto are received by either
Lessor or Lessee and the date that is 120 days following such Total Loss; provided, that if the Aircraft shall suffer a Total Loss while it is in the operational control of Lessor, its affiliates or agents, Lessee shall only be responsible for the
payment of Insured Value to the extent that insurance proceeds are available for such payment.
12. **STATEMENTS AND
REPRESENTATIONS:** | 1273 |
agreement_3.md | 12. **STATEMENTS AND
REPRESENTATIONS:**
Lessee and Lessor hereby agree that no representations, statement or agreement, other than as set forth herein,
shall be binding upon the parties hereto unless expressed in writing signed by each party hereto and purporting to be an expressed modification of this Agreement.
13. **[INTENTIONALLY OMITTED]**
14. **NOTICES**.
Any notice hereunder shall be sufficiently given by personal delivery or by telegram or by registered letter postage prepaid and mailed addressed to the
party to receive such notice at the address first above set forth or to such other address as may be designated in writing by either of the parties and the date or receipt of any notice by mailing as aforesaid shall be deemed conclusively to be the
second business day after such mailing. Notices shall be as follows:
14 | 1274 |
agreement_3.md | Heckmann Enterprises, Inc.
Rancho Mirage, CA 92270
Attention: Richard Heckmann
K2 Inc.
5818 El Camino Real
Carlsbad, CA 92008
Attention: General Counsel
Telephone: (760) 494-1000
Fax: (760) 494-1099
15. **FURTHER
ASSURANCES.**
Lessee and Lessor will each promptly and duly execute and deliver to the other such further documents and assurances
and take such further action as may from time to time be reasonably requested by any of them in order to more effectively carry out the intent and purpose of this Lease and to establish and protect the rights and remedies created or intended to be
created, or otherwise arising, in favor of Lessor and Lessee hereunder.
16. **AMENDMENTS.**
No term or provision of this Lease may be changed, waived, discharged or terminated orally, but only by an instrument in writing expressed to be a
supplement or amendment to this Lease duly signed by the party against which the enforcement of the change, waiver, discharge or termination is sought.
17. **COUNTERPARTS.**
This Lease may be executed by the parties hereto in separate counterparts,
each of which when so executed and delivered shall constitute one and the same agreement, which shall be sufficiently evidenced by any one of such original counterparts. To the extent that this Lease constitutes chattel paper (as defined in the
Uniform Commercial Code as in effect in any applicable jurisdiction), no security interest herein may be created through the transfer or possession of any counterpart other than the original counterpart, which shall be identified as the counterpart
containing the receipt therefor executed by Lessor on the signature page thereof.
18. **BINDING EFFECT.** | 1275 |
agreement_3.md | 18. **BINDING EFFECT.**
Subject to the terms hereof, the covenants and conditions of this Agreement shall inure to the benefit of and be binding upon the executors, successors,
administrators and assigns of the parties hereto.
15 | 1276 |
agreement_3.md | | | | |
| --- | --- | --- |
| | 19. | **GOVERNING LAW.** |
THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE UNITED STATES OF AMERICA, STATE OF CALIFORNIA AND LESSOR AND LESSEE AGREE TO EXCLUSIVE VENUE AND JURISDICTION OF THE UNITED STATES FEDERAL COURTS AND STATE COURTS OF CALIFORNIA IN THE
EVENT ANY DISPUTE ARISES WHICH RESULTS IN LITIGATION.
| | | |
| --- | --- | --- |
| | 20. | **TAXES.** | | 1277 |
agreement_3.md | Lessee agrees to pay, and to
indemnify and hold Lessor and its successors and assigns harmless from any and all Taxes (other than taxes payable with respect to the rent or earnings arising out of this Agreement and income taxes as a result of the use of the Aircraft by Lessor
or its affiliates) imposed, levied or withheld against, upon or from Lessor, Lessee, the Airframe, any Engine or any Part thereof arising out of or in any manner connected with the Airframe, any Engine, or any Part thereof, or upon the leasing,
possession, repossession, use, operation, repair, maintenance, overhaul, or return of any thereof, or upon or with respect to this Lease imposed by any government entity in any country, state or political subdivision thereof in which Lessee operates
the Aircraft or any other aircraft, or otherwise carries on any business activity, unless, and to the extent only that, any such Taxes are being contested by Lessee in good faith and by appropriate proceedings and only so long as such proceedings do
not involve any danger of the sale, forfeiture, or loss of all or any portion of the Airframe, any Engine or any Part. In case any report or return is required to be made with respect to any obligation of Lessee under or arising out of this
Section 20, Lessee shall make such report or return in a timely fashion and in such manner as will show the title of the Aircraft to be in Lessor, and send a copy of such report or return to Lessor. Lessor shall, at Lessee’s expense, take
such action as Lessee may reasonably request in writing with respect to such asserted liability, and if requested by Lessee and upon the prior payment to Lessor by Lessee of an amount equal to such Tax, shall make payment of such Tax under protest, | 1278 |
agreement_3.md | if payment under protest is necessary in order to contest the claim for Taxes. If contest is made, Lessor shall, at Lessee’s expense, take such action as Lessee may reasonably request to contest the claim for Taxes and shall, if requested,
permit Lessee, in Lessor’s name, to file a claim or prosecute an action to contest the claim for Taxes and to recover any payment made under protest. Any amount paid by Lessee pursuant to this Section 20 shall be in an amount which, after
deduction of all Taxes required to be paid by Lessee hereunder, shall equal the amount of payment otherwise required hereunder. All of the obligations of Lessee in this Section 20 with respect to Taxes imposed or accrued before the expiration
or other termination of this Lease shall continue in full force and effect notwithstanding such expiration or other termination hereof and are expressly made for the benefit of, and shall be enforceable by, Lessor and its successors and assigns. | 1279 |
agreement_3.md | Lessee’s obligations under this Section 20 shall not extend to any liability resulting from any fact, occurrence, event or
condition occurring prior to the commencement of the Term, or, so long as no Event of Default is continuing, after the date on which the Aircraft has been returned to Lessor in accordance with the provisions of this Lease.
16 | 1280 |
agreement_3.md | 21. **OTHER CONDITIONS**.
a. Lessee does not obtain any property interest in the Aircraft, nor will Lessee acquire any property rights in the Aircraft except to use the Aircraft as
a Lessee during the Term of this Agreement, or any extension thereto.
b. Any delay or omission, by either party, in exercising the rights
or powers granted by this Agreement will not affect either party’s ability to enforce those rights or powers at a later date.
c. No
director, officer, employee or stockholder, as such, of Lessor shall have any liability for any obligations of Lessor under this Agreement or for any claim based on, in respect of or by reason of such obligations or their creation. Lessee, by
accepting the Aircraft hereunder, waives and releases all such liability. The waiver and release are part of the consideration for the lease of the Aircraft to Lessee hereunder.
22. **TRUTH IN LEASING**
a.
Within 24 hours of the execution of this Lease, Lessor will mail a copy of this Lease to the Aircraft Registration Branch, Attention: Technical Section, P.O. Box 25724, Oklahoma City, OK 73125.
b. A copy of this Lease must be carried in the Aircraft and shall be made available for review upon request by the Administrator (as such term is used in
14 C.F.R. Section 91.23(c)(2)).
c. Lessee will notify by telephone the FAA Flight Standards district office nearest the airport where
the first flight of the Aircraft will originate under this Lease. Unless otherwise authorized by that office, the notification shall be given at least 48 hours before takeoff and Lessee shall inform the FAA of the location of the airport of
departure, the departure time and the registration number of the Aircraft. | 1281 |
agreement_3.md | d. LESSEE AND LESSOR HAVE REVIEWED OR CAUSED TO BE REVIEWED THE
AIRCRAFT MAINTENANCE AND OPERATING LOGS SINCE THE LATER OF THE 12-MONTH PERIOD PRECEDING THE DATE OF THIS AGREEMENT AND THE DATE OF MANUFACTURE OF THE AIRCRAFT AND HAVE FOUND THAT THE AIRCRAFT HAS BEEN MAINTAINED AND INSPECTED UNDER PART 91 OF THE
FEDERAL AVIATION REGULATIONS DURING SUCH PERIOD. LESSEE CERTIFIES THAT THE AIRCRAFT PRESENTLY COMPLIES WITH THE APPLICABLE MAINTENANCE AND INSPECTION REQUIREMENTS OF PART 91 OF THE FEDERAL AVIATION REGULATIONS. LESSEE CERTIFIES THAT THE AIRCRAFT
PRESENTLY COMPLIES WITH THE APPLICABLE MAINTENANCE AND INSPECTION REQUIREMENTS OF PART 91 OF THE FEDERAL AVIATION REGULATIONS.
17 | 1282 |
agreement_3.md | e. LESSEE CERTIFIES THAT LESSEE WILL BE RESPONSIBLE FOR OPERATIONAL CONTROL OF THE AIRCRAFT UNDER THIS
LEASE DURING THE PERIODS OF LESSEE’S POSSESSION AND USE OF THE AIRCRAFT DURING THE TERM HEREOF. LESSEE FURTHER CERTIFIES THAT LESSEE UNDERSTANDS ITS RESPONSIBILITY FOR COMPLIANCE WITH APPLICABLE FEDERAL AVIATION REGULATIONS.
f. LESSEE CERTIFIES THAT THE AIRCRAFT WILL BE MAINTAINED AND INSPECTED UNDER PART 91 OF THE FEDERAL AVIATION REGULATIONS FOR OPERATIONS TO BE CONDUCTED
UNDER THIS LEASE. LESSEE UNDERSTANDS THAT AN EXPLANATION OF FACTORS BEARING ON OPERATIONAL CONTROL AND PERTINENT FEDERAL AVIATION REGULATIONS CAN BE OBTAINED FROM THE NEAREST FAA FLIGHT STANDARDS DISTRICT OFFICE, GENERAL AVIATION DISTRICT OFFICE, OR
AIR CARRIER DISTRICT OFFICE.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
18
---
**IN WITNESS WHEREOF**, Lessor and Lessee have executed this Lease the day and year first above
written.
| | | |
| --- | --- | --- |
| | | |
| **HECKMANN ENTERPRISES, INC.** |
| **LESSOR** |
| | |
| By: | | /s/ RICHARD J. HECKMANN |
| Title: | | President |
| |
| **K2 INC.** |
| **LESSEE** |
| | |
| By: | | /s/ J. WAYNE MERCK |
| Title: | | President & COO |
19 | 1283 |
agreement_30.md | EX-4
6
exhibit106aircraftlease.htm
AIRCRAFT LEASE
**AIRCRAFT LEASE AGREEMENT [49222]
dated as of
February 1, 2001
between
PEGASUS AVIATION II, INC.,
as Lessor,
and
VANGUARD AIRLINES, INC.,
as Lessee
One (1) McDonnell Douglas model DC-9-82 aircraft, MSN 49222, U.S. Registration
Mark N16802, along with two (2) Pratt & Whitney JT8D-217A engines**Counterpart No. \_\_\_ of 6 serially numbered, manually executed counterparts. To the extent that this Aircraft Lease Agreement constitutes chattel paper under the Uniform Commercial Code in the U.S. or any corresponding law in any foreign JURISDICTION, no security interest in this Aircraft Lease Agreement may be created through the transfer or possession of any counterpart hereto other than Counterpart No. 1.
**INDEX** | 1284 |
agreement_30.md | | | | |
| --- | --- | --- |
| SECTION | HEADING | PAGE |
| | | |
| | | |
| 1. | Definitions | 1 |
| 2. | Lease and Conditions | 7 |
| 3. | Delivery and Acceptance; Term | 10 |
| 4. | Rent | 10 |
| 5. | Representations and Warranties | 11 |
| 6. | Possession and Use | 15 |
| 7. | Information and Inspection | 22 |
| 8. | Covenants of Lessee | 22 |
| 9. | Replacement of Parts; Alterations, Modifications and Additions | 24 |
| 10. | General Tax Indemnity | 25 |
| 11. | Casualty Occurrences | 29 |
| 12. | Insurance | 32 |
| 13. | Indemnification | 34 |
| 14. | Liens | 37 |
| 15. | Perfection of Title and Further Assurances | 37 |
| 16. | Return of Aircraft and Records | 38 |
| 17. | Events of Default | 41 |
| 18. | Remedies | 43 |
| 19. | Alienation | 45 |
| 20. | Miscellaneous | 46 |
| | | |
| | | |
| | | |
| EXHIBITS | | |
| | | |
| EXHIBIT A | Description of Aircraft | i |
| EXHIBIT B | List of Manuals, Documents and Records | ii | | 1285 |
agreement_30.md | | EXHIBIT B | List of Manuals, Documents and Records | ii |
| EXHIBIT C | Definitions and Values | iv |
| EXHIBIT D | Form of Lease Supplement | viii |
| EXHIBIT E | Delivery and Other Requirements | xi |
| EXHIBIT F | Return Condition Requirements | xv |
| EXHIBIT G | Maintenance Recording Requirements | xxi |
| | | | | 1286 |
agreement_30.md | **AIRCRAFT LEASE AGREEMENT [49222]**
THIS AGREEMENT, dated as of February 1, 2001, is by and between PEGASUS AVIATION II, INC., a Delaware corporation, or its assigns (hereinafter, the "Lessor"), and VANGUARD AIRLINES, INC., a Delaware corporation (hereinafter, the "Lessee").
**WITNESSETH**
WHEREAS, Lessee desires to lease from Lessor, and Lessor is willing to lease to Lessee, the aircraft described herein, upon and subject to the following terms and conditions.
NOW THEREFORE, for and in consideration of the premises, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Lessor and Lessee hereby agree as follows:
Section 1. Definitions.
Unless the context otherwise requires, the following terms shall have the following respective meanings for all purposes of this Agreement and shall be equally applicable to both the singular and the plural forms of the terms herein defined:
Aircraft shall mean the Airframe, together with: (i) the Engines, whether or not installed on the Aircraft; (ii) all Parts and all components thereof; (iii) all ancillary equipment or devices furnished with the Aircraft under this Lease; (iv) all Aircraft Documents, and (v) all substitutions, replacements and renewals of any and all thereof.
Aircraft Documents shall mean the maintenance and inspection records and all other current and historical records and documentation pertaining to the Aircraft, including, without limitation, the items identified in Exhibit B hereto, those generated by Lessee during the Term, and all such documents and records required to be maintained under this Lease and in accordance with Applicable Law and the requirements of Exhibit G hereto. | 1287 |
agreement_30.md | Airframe shall mean: (a) the McDonnell Douglas model DC-9-82 aircraft (excluding Engines or engines from time to time installed thereon) bearing manufacturer's serial number 49222, United States registration N16802; and (b) any and all Parts which are from time to time incorporated or installed on or attached thereto or which have been removed therefrom so long as title thereto remains vested in Lessor in accordance herewith, including the terms of Section 9 hereof.
Applicable Law shall mean: (i) any law, statute, decree, constitution, regulation, order, judgment, rule, license, permit, injunction or other directive of any Governmental Entity; (ii) any treaty, pact, compact or other agreement to which any Governmental Entity is a signatory or party; (iii) any judicial interpretation with binding characteristics or application of those described in (i) or (ii) above; (iv) any administrative interpretation with binding characteristics or application of those described in (i) or (ii) above; and (v) any amendment or revision of any of those described in (i), (ii), (iii) or (iv) above, and in each case, which is applicable to the Aircraft and its use and operation, the Lessee, any Sublessee, or the transactions contemplated by this Lease and the other Operative Agreements.
Approved Insurance Broker shall mean AON Aviation or such other that insurance/reinsurance broker of internationally recognized responsibility and standing specializing in aircraft insurance as is reasonably acceptable to and approved by Lessor.
Approved Insurer shall mean each insurer and reinsurer of internationally recognized responsibility and standing effecting aircraft insurance as is reasonably acceptable to and approved by Lessor with respect to all policies of insurance and reinsurance required hereunder or the current insurers of Lessee's fleet. | 1288 |
agreement_30.md | Approved Maintenance Provider shall mean: (i) with respect to any scheduled maintenance or any modification or alteration to the Aircraft, Hamilton Aviation of Tucson, Arizona, COOPESA of San Jose, Costa Rica, or such other FAA approved maintenance facility which is approved in advance in writing by Lessor to perform maintenance on the Aircraft or such facility as is otherwise mutually agreed between Lessor and Lessee; and (ii) with respect to any other required maintenance hereunder, an FAA approved maintenance facility which is approved in writing, in advance, by Lessor.
Basic Rent shall mean the rent for the Aircraft specified on Exhibit C and payable throughout the Term for the Aircraft pursuant to Section 4(a) hereof.
Basic Rent Payment Date shall mean the day for payment of Basic Rent determined in accordance with Exhibit C. It is further understood and agreed that if a Basic Rent Payment Date shall fall on a day which is not a Business Day, any payment due on such Basic Rent Payment Date shall be made on the next following Business Day.
Business Day shall mean any day other than a Saturday, Sunday or other day on which banking institutions in New York, New York, or Kansas City, Missouri, or San Francisco, California are authorized or required by law to be closed. | 1289 |
agreement_30.md | Casualty Occurrence shall mean any of the following events with respect to the Aircraft, Airframe or any Engine: (a) loss of such property or its use due to theft or disappearance for a period in excess of ninety (90) consecutive days, or destruction, damage beyond economic repair, or rendition of such property permanently unfit for normal use by Lessee for any reason whatsoever; (b) any damage to such property which results in an insurance settlement with respect to such property on the basis of a total loss or on the basis of a compromised or constructive total loss; (c) the condemnation, confiscation, appropriation or seizure of, or requisition of title to, such property; or the use of such property by any Governmental Entity or purported Governmental Entity, which in any such case shall have resulted in the loss of possession thereof by Lessee for a period in excess of ninety (90) consecutive days (or for such shorter period ending on the date which is the date of receipt of an insurance settlement with respect to such property on the basis of a total loss); (d) the disposal of such property by an administrator of Lessee (including a receiver, manager, liquidator or provisional liquidator) or any official exercising similar powers pursuant to applicable bankruptcy law, or any similar statute, or any disposal of such property by an administrator of Lessee or any person exercising similar powers pursuant to any security interest over the assets of Lessee; or (e) the occurrence of any event described in Section 6(a)(iii)(4) hereof. A Casualty Occurrence with respect to the Airframe shall constitute a Casualty Occurrence with respect to the Aircraft.
Casualty Value shall mean the amount specified in Exhibit C hereto.
Commencement Date shall have the meaning provided therefor in Exhibit C hereto. | 1290 |
agreement_30.md | Commencement Date shall have the meaning provided therefor in Exhibit C hereto.
Default shall mean an event which would constitute an Event of Default but for the lapse of time or the giving of notice or both.
Delivery Location shall mean the location specified in Exhibit C hereto for the delivery of the Aircraft by Lessor to Lessee.
Dollars shall mean lawful currency of the United States of America.
Engine shall mean any Engine installed on or furnished with the Aircraft on the Commencement Date or any subsequent date, such Engines being identified as to manufacturer, type and manufacturer serial number in Exhibit A hereto, and any Replacement Engine which may from time to time be substituted therefor pursuant to Section 11 hereof; together in each case with any and all Parts incorporated or installed in or attached thereto and any and all Parts removed therefrom so long as title thereto remains vested in Lessor in accordance with the terms of Section 9 hereof after removal from such Engine. Except as otherwise set forth herein, at such time as a Replacement Engine shall be so substituted, such replaced Engine shall cease to be an Engine hereunder. The term "Engines" means, as of any date of determination, all Engines then leased hereunder.
Estimated Delivery Date shall mean the date specified in Exhibit C hereto.
Event of Default shall mean the occurrence of any of the events specified in Section 17 hereof. | 1291 |
agreement_30.md | Event of Default shall mean the occurrence of any of the events specified in Section 17 hereof.
Excluded Payments shall mean (i) proceeds of any public liability insurance in respect of the Aircraft payable as a result of insurance claims made, or losses suffered which are payable directly to the Lessee or any Indemnitee; (ii) any interest that pursuant to the Operative Agreements may from time to time accrue in respect of any of the amounts described in clause (i) above; (iii) any right to enforce against any Person owing such amounts, the payment of any amount described in clauses (i) and (ii) above (iii) any right to exercise any election or option or make any decision or determination, or to give or receive any notice, consent, waiver or approval, or to take any other action in respect of, but in each case only to the extent relating to, any Excluded Payments; and (iv) any right of Lessee or an Indemnitee to restitution in respect of, but only to the extent relating to, any Excluded Payment resulting from a determination of invalidity of such Excluded Payment.
Expiration Date shall mean the date specified as such in Lease Supplement No. 1, and in Exhibit C hereto, unless extended or accelerated as provided herein.
FAA shall mean the Federal Aviation Administration of the United States Department of Transportation, or any successor thereto.
FAR shall mean the Federal Aviation Regulations promulgated under the Federal Aviation Act, as amended and supplemented from time to time.
Federal Aviation Act shall mean 49 U.S.C. Section40101 et. seq., as amended and as in effect on the date of this Lease, or any successor or substituted U.S. legislation at the time in effect and applicable. | 1292 |
agreement_30.md | Governmental Entity shall mean and include: (i) the FAA; (ii) any national, federal, state, or local government (whether domestic or foreign), any political subdivision thereof or local jurisdiction therein; (iii) any board, commission, department, division, organ, instrumentality, court or agency of any entity described in (ii) above, however constituted; and (iv) any association, organization or institution of which any entity described in (ii) or (iii) above is a member or to whose jurisdiction any such entity is subject or in whose activities any such entity is a participant but only (except for purposes of defining "Applicable Law" above) to the extent that any entity described in (i) through (iv) above has jurisdiction over this Lease, the Operative Agreements or the Aircraft and its operations, or any of the parties hereto.
Indemnitees shall mean, collectively, the Lessor, and any Lessor Lender, and their respective officers, directors, shareholders, controlling persons, agents, and employees, and their respective successors and assigns.
Lease Agreement, this Lease Agreement, this Lease, this Agreement, herein, hereunder or other like words shall mean this Lease and all Exhibits, Lease Supplements, amendments or modifications hereto or thereto from time to time entered into.
Lease Identification shall mean a placard in the form set forth in Exhibit C hereto.
Lease Supplement shall mean Lease Supplement No. 1, substantially in the form of Exhibit D hereto, and any subsequent Lease Supplements.
Lessor Lender shall mean and include any Person to whom Lessor grants a security interest in the Aircraft and/or this Lease and the other Operative Agreements for the purpose of any financing to be accomplished by Lessor or any of its affiliates, and as Lessor may from time to time notify Lessee. | 1293 |
agreement_30.md | Lessor's Estate shall mean all estate, right, title and interest of the Lessor in and to the Aircraft, the Lease, the Lease Supplement, any bill of sale, any warranty with respect to the Airframe or the Engines, all amounts of Basic Rent and Supplemental Rent, including, without limitation, insurance proceeds and requisition, indemnity or other payments of any kind for or with respect to the Aircraft.
Lessor's Liens shall mean Liens on the Aircraft or the Lessor's Estate arising as a result of: (i) claims against Lessor or the Lessor's Estate not related to the transactions contemplated by the Operative Agreements; or (ii) acts or omissions of Lessor, not contemplated and expressly permitted under the Operative Agreements; or (iii) Taxes imposed against Lessor, the Lessor's Estate, or the Aircraft which are not indemnified against by Lessee pursuant to Section 10 hereof; or (iv) claims against Lessor, Lessor's Estate or the Aircraft arising out of the voluntary transfer by Lessor of all or any part of its interests in the Lessor's Estate, the Aircraft or this Lease, other than a transfer pursuant to Sections 11 or 18 hereof; or (v) Liens granted by the Lessor to any Lessor Lender.
Lien shall mean any mortgage, pledge, lien, charge, encumbrance, hypothecation, lease, exercise of rights, security interest or claim (including any imposed with respect to any Taxes, Eurocontrol fees and charges, or any airport or landing fees or related charges). | 1294 |
agreement_30.md | Maintenance Program shall mean the Lessee's FAA-approved MSG-3 maintenance program for McDonnell Douglas model DC-9-82 (Boeing MD-80 series) aircraft, or such other FAA-approved manufacturer's maintenance program as in effect from time to time for the Aircraft encompassing scheduled maintenance, condition-monitored maintenance and on-condition maintenance of the Airframe, Engines and components of the Aircraft as shall be approved by Lessor. Lessee's Maintenance Program shall not deviate materially from the respective Manufacturers' recommended MSG-3 maintenance planning documents.
Maintenance Reserves shall mean the Maintenance Reserve Payments for the Aircraft specified on Exhibit C payable by the Lessee throughout the Term pursuant to Section 4(a) and Section 6(g) hereof.
Operative Agreements shall mean this Lease, any Lease Supplement, any Permitted Sublease, any Security Agreement, the Participation Agreement, and any other documents and agreements executed and delivered by Lessor, Lessee and any Sublessee, or any Lessor Lender or any other Person in furtherance of the transactions contemplated hereby and thereby.
Participation Agreement shall mean that certain Aircraft Participation Agreement dated as of the date hereof among Lessee, Lessor and certain affiliates of Lessor.
Parts shall mean all appliances, components, parts, instruments, appurtenances, avionics, accessories, furnishings and other equipment of whatever nature (other than complete Engines or engines), which may now or from time to time be incorporated or installed in or attached to the Airframe or any Engine. Except as otherwise set forth herein, only at such time as a replacement part shall be substituted for a Part in accordance with Section 9 hereof, shall the Part so replaced cease to be a Part hereunder. | 1295 |
agreement_30.md | Permitted Lien shall mean: (i) any Lien for Taxes which are either not assessed or, if assessed, are not yet due and payable or are being contested in good faith by appropriate proceedings so long as such proceedings shall not involve any material risk of the sale, forfeiture or loss of the Aircraft; or (ii) any undetermined or inchoate Lien of a repairer, carrier, hangarkeeper, material supplier or other similar Lien arising in the ordinary course of business in respect of obligations which are not overdue or which have been adequately bonded or are being contested in good faith by appropriate proceedings; provided that (in the case of both (i) and (ii)) such proceedings, or the continued existence of such Lien, do not involve any material risk of the sale, forfeiture or loss of the Aircraft; or (iii) the respective rights of the parties to the Operative Agreements as set forth therein, and any Liens expressly permitted thereby including Liens granted by the Lessor | 1296 |
agreement_30.md | and any Liens expressly permitted thereby including Liens granted by the Lessor to any Lessor Lender; or (iv) Liens arising out of any judgment or award against Lessee (or any Sublessee), unless the judgment secured shall not, within thirty (30) days after the entry thereof, have been discharged, vacated, reversed or execution thereof stayed pending appeal or shall not have been discharged, vacated or reversed within thirty (30) days after the expiration of such stay, so long as during any such 30-day period there is not, or any such judgment or award does not involve, any material risk of the sale, forfeiture or loss of the Airframe or any engine or any interest therein (unless Lessee or any Sublessee shall have provided a bond or other security in an amount and under terms reasonably satisfactory to Lessor and Lessor's Lender); or (v) any other Lien with respect to which Lessee (or any Sublessee) shall have provided a bond or other security in an amount and under | 1297 |
agreement_30.md | Sublessee) shall have provided a bond or other security in an amount and under terms reasonably satisfactory to Lessor and Lessor's Lender. | 1298 |
agreement_30.md | Permitted Sublease shall mean any sublease or other contract for the use of the Aircraft (other than ACMI "wet leases" or charter agreements whereby Lessee retains full operational control of the Aircraft), accepted and approved in writing by Lessor, subject to the provisions of Section 6 hereof.
Person shall mean and include any individual, corporation, company, limited liability company, partnership, firm, joint stock company, joint venture, trust, estate, unincorporated organization, association or Governmental Entity.
Rent shall mean Basic Rent and Supplemental Rent, collectively.
Replacement Engine shall mean an engine of the same manufacturer and model, and having equivalent value, utility, modification status and remaining useful life as the Engine it is intended to replace under Section 11(b) hereof, or, at Lessee's option, an engine of the same manufacturer as such Engine but of an improved model, and otherwise of an equivalent value, utility and remaining useful life and suitable for installation and use on the Airframe without any diminution in the value, utility or remaining useful life of the Airframe.
Return Occasion shall mean the return of possession of the Aircraft from Lessee to Lessor at the end of the Term of this Lease, or upon Lessor demanding that Lessee return or Lessor taking possession of the Aircraft pursuant to Section 18 hereof.
Security Agreement shall mean each mortgage, security agreement or other document creating a Lien over the Aircraft or this Lease in favor of any Lessor's Lender, as indentified in writing by Lessor.
Security Deposit shall mean the amount specified in Exhibit C hereto.
Sublessee shall mean any Person in possession of the Aircraft pursuant to a Permitted Sublease. | 1299 |