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agreement_14.md | | | | |
| --- | --- | --- |
| | (8) | The Aircraft will have installed all applicable vendors’ and manufacturer’s service bulletin kits received free of charge by Lessee that are appropriate for the Aircraft.
If these optional service bulletin kits have not been installed, they must be returned with the Aircraft. |
| | | |
| --- | --- | --- |
| | (9) | The Aircraft will have all signs and decals clean, secure and legible. |
| | | |
| --- | --- | --- |
| | (B) | Fuselage, Windows and Doors |
| | | |
| --- | --- | --- |
| | (1) | The fuselage will be free of major dents and abrasions, and patches with loose, pulled or missing rivets. |
| | | |
| --- | --- | --- |
| | (2) | The windshield will be free of cracks. Any delamination must be approved by the Manufacturer or Lessor. Windshield heat must be operational. |
| | | |
| --- | --- | --- |
| | (3) | The cabin side windows will be free of delamination, warpage, blemishes, crazing and will be properly sealed. |
| | | |
| --- | --- | --- |
| | (4) | The doors will be free moving, correctly rigged and be fitted with serviceable seals. |
22 | 200 |
agreement_14.md | | | | |
| --- | --- | --- |
| | (5) | Any and all structural repairs on the Aircraft will be permanent in nature and fully in accordance with the Manufacturer’s guidelines and will be approved where necessary by
FAA documentation. Where possible, new repairs to the fuselage skin panels will be executed by means of “flush or insert” repair methods. |
| | | |
| --- | --- | --- |
| | (C) | Wings and Empennage |
| | | |
| --- | --- | --- |
| | (1) | The leading edges will be free from damage, normal wear and tear excepted. |
| | | |
| --- | --- | --- |
| | (2) | The wings will be free of fuel leaks. |
| | | |
| --- | --- | --- |
| | (D) | Interior |
| | | |
| --- | --- | --- |
| | (1) | The ceiling, sidewalls and bulkhead panels will be clean and free of cracks and stains. |
| | | |
| --- | --- | --- |
| | (2) | All seat covers will be in good condition, clean and free of stains and meet applicable FAR fire regulations (burn certifications), normal wear and tear excepted.
|
| | | |
| --- | --- | --- |
| | (3) | All seats will be serviceable, in good condition and recovered as necessary, normal wear and tear excepted. | | 201 |
agreement_14.md | | | | |
| --- | --- | --- |
| | (4) | All emergency equipment will be in good working condition. |
| | | |
| --- | --- | --- |
| | (E) | Cockpit |
| | | |
| --- | --- | --- |
| | (1) | The fairing panels will be free of stains and cracks, will be clean, secure and repaired as necessary. |
| | | |
| --- | --- | --- |
| | (2) | Floor coverings will be clean and effectively sealed. |
| | | |
| --- | --- | --- |
| | (3) | The seat covers will be in good condition, clean and free of stains and will conform to applicable FAR fire regulations (burn certifications), normal wear and tear excepted.
|
| | | |
| --- | --- | --- |
| | (4) | Seats will be serviceable, in good condition and will be recovered as necessary, i.e. if condition of the seat covers exposes seat cushions. |
| | | |
| --- | --- | --- |
| | (F) | Cargo Compartments |
| | | |
| --- | --- | --- |
| | (1) | All panels and cargo nets will be in good condition. |
23 | 202 |
agreement_14.md | | | | |
| --- | --- | --- |
| | (G) | Landing Gear |
| | | |
| --- | --- | --- |
| | (1) | The landing gear and wheel wells will be clean, free of leaks and repaired as necessary. |
| | | |
| --- | --- | --- |
| | (H) | Corrosion |
| | | |
| --- | --- | --- |
| | (1) | The Aircraft will have been inspected and treated with respect to corrosion as defined in FAA Advisory Circular AC43-4A, Corrosion Control for Aircraft. Reference 1900D Structural
Repair Manual for repairs. |
| | | |
| --- | --- | --- |
| | (I) | Miscellaneous |
| | | |
| --- | --- | --- |
| | (1) | The Aircraft will not have incurred any reduction of the specified fatigue life or require additional maintenance inspections over and above that determined by the Aircraft
Manufacturer. |
| | | |
| --- | --- | --- |
| | (2) | The Weight and Balance Schedule and Equipment List will be current and represent the Aircraft’s current configuration at the time of return. |
| | | |
| --- | --- | --- |
| | (3) | The Aircraft will not be accepted, flight tested or undergo inspection by Lessor with a rental engine(s) installed. | | 203 |
agreement_14.md | | | | |
| --- | --- | --- |
| | (4) | Physical redelivery condition of the Aircraft relating to paint, seat covers, carpet, tires and brakes shall be subject to normal wear and tear conditions. |
| | |
| --- | --- |
| 14.3 | Immediately prior to redelivering the Aircraft, Lessee will make the Aircraft available to Lessor for inspection (“Final Inspection”) in order to verify that the
condition of the Aircraft complies with this Lease. All costs in connection with the Final Inspection (except for Lessor’s own inspectors’ salaries, travel expenses and other out-of-pocket expenses) will be for the account of Lessee. The
Final Inspection will be long enough to permit Lessor to: |
| | | |
| --- | --- | --- |
| | (A) | Inspect the Aircraft, Engine and Propeller logbooks and Technical Records; |
| | | |
| --- | --- | --- |
| | (B) | Inspect the Aircraft and uninstalled Parts; |
| | | |
| --- | --- | --- |
| | (C) | Inspect each Engine, including without limitation, a full boroscope and a full maintenance manual power assurance engine test run; and |
| | | |
| --- | --- | --- |
| | (D) | Observe a one-hour demonstration flight (with Lessor’s representatives as onboard observers). |
24 | 204 |
agreement_14.md | | | |
| --- | --- |
| 14.4 | To the extent that, at the time of Final Inspection, the condition of the Aircraft or an Engine does not comply with this Lease, Lessee will at its option: |
| | | |
| --- | --- | --- |
| | (A) | Immediately rectify the non-compliance and to the extent the non-compliance extends beyond the expiration of the Lease, the Lease Term will be automatically extended on a day-to-day
basis and this Lease will remain in force until the non-compliance has been rectified; or |
| | | |
| --- | --- | --- |
| | (B) | Redeliver the Aircraft to Lessor and indemnify Lessor, and provide to Lessor’s satisfaction, cash as security for the indemnity, against the cost of putting the Aircraft or
Engine (as the case may be) into the condition required by this Lease. |
| | |
| --- | --- |
| 14.5 | Provided Lessee has complied with its obligations under this Lease, following redelivery of the Aircraft by Lessee to Lessor, Lessor will deliver to Lessee an acknowledgment
confirming that Lessee has redelivered the Aircraft to Lessor in accordance with the Lease. Lessor reserves the right to claim restitution for hidden damages (exclusive of Manufacturer’s defects) which were caused by or which should have been
reasonably discovered by Lessee due to its operation of maintenance of the Aircraft, but which could not be detected during the Aircraft return inspection process noted in Articles 14.3 and 14.4. |
| | |
| --- | --- |
| 14.6 | Lessee’s Maintenance Program | | 205 |
agreement_14.md | | | |
| --- | --- |
| 14.6 | Lessee’s Maintenance Program |
| | | |
| --- | --- | --- |
| | (A) | Prior to the expiration or termination of the Lease and upon Lessor’s request, Lessee will provide Lessor or its agent reasonable access to Lessee’s Maintenance Program
and the logbooks and Technical Records in order to facilitate the Aircraft’s integration into any subsequent operator’s fleet; and |
| | | |
| --- | --- | --- |
| | (B) | Lessee will, if requested by Lessor to do so, upon return of the Aircraft, deliver to Lessor a certified, true, current and complete copy of Lessee’s Maintenance Program,
provided that Lessor shall not disclose any such program to a third party without Lessee’s prior written consent or a court order directing such disclosure. |
ARTICLE 15: ASSIGNMENTS AND BENEFITS
| | |
| --- | --- |
| 15.1 | This Lease may be assigned by Lessor, at its sole discretion and at any time, either in whole or in part, upon written notice to Lessee but without further consent from Lessee.
Lessee hereby consents to any and all assignments or sales of, or the granting of participations in, this Lease. |
| | |
| --- | --- |
| 15.2 | This Lease may not be assigned by Lessee, either in whole or in part, without the prior written consent of Lessor. | | 206 |
agreement_14.md | | | |
| --- | --- |
| 15.3 | The Aircraft leased hereunder may not be subleased or rented by Lessee to another party without the prior written consent of Lessor. |
| | |
| --- | --- |
| 15.4 | This Lease shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns. |
25 | 207 |
agreement_14.md | | | |
| --- | --- |
| 15.5 | Subject to Lessee’s right to possession of the Aircraft as long as no Event of Default has occurred and is continuing, Lessor may subject the Aircraft to the security interests
of a lender to Lessor or otherwise subordinate the Lease to any financing agreement, and may provide the benefit of this Lease to such lender as security for Lessor’s obligations to its lenders. Lessee agrees to cooperate in all reasonable
respects with Lessor and Lessor’s lender with regard to such subordination, security interest or other financing agreement, and to execute such documentation as may reasonably be requested by Lessor or by Lessor’s lender in connection
therewith. Without limiting the foregoing, Lessee agrees upon the request of Lessor, from time to time, to execute a written certificate certifying the following points: |
| | | |
| --- | --- | --- |
| | (A) | that the Lease has not been modified and remains in full force and effect; or, if the Lease has been modified, what the modifications are and that the Lease as so modified remains
in full force and effect; |
| | | |
| --- | --- | --- |
| | (B) | stating the date to which the monthly rental payments and other charges have been paid; |
| | | |
| --- | --- | --- |
| | (C) | acknowledging that to the knowledge of Lessee there are no uncured defaults on the part of Lessor under the Lease; or, alternatively, specifying any such default claimed by Lessee;
and | | 208 |
agreement_14.md | | | | |
| --- | --- | --- |
| | (D) | acknowledging that Lessee has no claims against Lessor under the Lease; or, alternatively, specifying any such claims that Lessee has against Lessor. |
ARTICLE 16: NOTICES
| | |
| --- | --- |
| 16.1 | Any formal notice required or allowed hereunder shall be deemed sufficiently given if personally delivered or sent by certified mail (return receipt requested) or telefacsimile to
the party to whom said notice is to be given. Notices sent by certified mail, return receipt requested, shall be deemed to be served seventy-two (72) hours after the date said notice is postmarked to the addressee, postage prepaid. Notices sent
by telefacsimile shall be deemed to have been served on the day sent. |
| | |
| --- | --- |
| 16.2 | Until changed by written notice given by either party to the other, the addresses of the parties shall be as follows: |
| | | |
| --- | --- | --- |
| | (A) | The Lessor: |
Raytheon Aircraft Credit Corporation
Attn: President
8300 East
Thorn Drive, Suite 100
Wichita, Kansas 67226
Telefacsimile: (316) 676-4636
26 | 209 |
agreement_14.md | | | | |
| --- | --- | --- |
| | (B) | The Lessee: |
Great Lakes Aviation, Ltd.
Attn: President
1022 Airport Parkway
Cheyenne, Wyoming 82001
Telefacsimile: (307) 432-7001
| | |
| --- | --- |
| 16.3 | The designated addresses of both parties must be located within the United States of America. |
ARTICLE 17: LESSEE’S REPRESENTATIONS, WARRANTIES AND COVENANTS
| | |
| --- | --- |
| 17.1 | Lessee represents, warrants and covenants to Lessor each of the following: |
| | | |
| --- | --- | --- |
| | (A) | Lessee is a corporation duly organized, validly existing and in good standing under the laws of the state in which it is incorporated, and is duly qualified and authorized to do
business wherever the nature of its activities or the ownership of its properties require such qualification and authorization. | | 210 |
agreement_14.md | | | | |
| --- | --- | --- |
| | (B) | Lessee’s address noted above is its address for purposes of determining whether Lessee is situated in a Contracting State as defined in the Cape Town Treaty. Lessee further
confirms that its appointment as Transaction User Entity was a valid and enforceable act as to the Lessee, the appointment of its Administrator was a valid and enforceable act and the Administrator and/or the appointed Professional User has the
authority to bind the Lessee and make registrations on the International Registry. Lessee agrees to indemnify and hold Lessor harmless for any fees, cost or expenses (including attorney fees and costs for preparing documents and/or litigation)
incurred by Lessor should the appointments of the Lessee’s Administrator or Professional User be deemed invalid or ineffective. |
| | | |
| --- | --- | --- |
| | (C) | Lessee has the full power, authority and legal right to execute, deliver and perform the terms of this Lease. This Lease has been duly authorized by all necessary corporate action
of Lessee and constitutes a valid and binding obligation of Lessee, enforceable in accordance with its terms. Lessor hereby confirms that Lessee, by virtue of entering into this Agreement, shall not be deemed by Lessor to be in default of any other
agreement currently existing between Lessor and Lessee. |
| | | |
| --- | --- | --- |
| | (D) | There is no law, nor any charter, bylaw or preference share provision of Lessee, nor any provision in any existing mortgage, indenture, contract or agreement binding upon Lessee,
which would be contravened by the execution, delivery or performance by Lessee of this Lease. | | 211 |
agreement_14.md | | | | |
| --- | --- | --- |
| | (E) | No consent of the shareholders or of any trustee or holder of any indebtedness of Lessee is or will be required as a condition to the validity of this Lease or, if required, all
such consents have been duly obtained and certified copies thereof shall be delivered to Lessor. |
27 | 212 |
agreement_14.md | | | | |
| --- | --- | --- |
| | (F) | No registration with, or approval of, any governmental agency or commission is necessary for the execution, delivery or performance by Lessee of the terms of this Lease or for the
validity hereunder; or, if required, all such registrations and approvals have been duly made or obtained and certified copies thereof shall be delivered to Lessor. |
| | | |
| --- | --- | --- |
| | (F) | There are no outstanding or unpaid judgments against Lessee, with the exception of those already disclosed to Lessor, and there is no action or proceeding pending or, insofar as
Lessee knows, threatened against Lessee before any Court or administrative agency which in Lessee’s reasonable opinion might have any material adverse effect on the business, condition or operations of Lessee except as disclosed by Lessee to
Lessor at time of execution of this Lease. |
| | | |
| --- | --- | --- |
| | (G) | Lessee is the holder of Air Carrier Certificate No. GL-BA0-31A issued pursuant to 14 CFR §121/135, or other such certificates that may be deemed to replace the aforementioned
certificate by the FAA. |
| | |
| --- | --- |
| 17.2 | Throughout the Lease Term, Lessee shall furnish to Lessor such financial reports and information concerning Lessee and its business operations as Lessor may from time to time
request. | | 213 |
agreement_14.md | | | |
| --- | --- |
| 17.3 | Throughout the Lease Term, Lessee agrees to provide Lessor with reasonable access (which, prior to the occurrence of an Event of Default, shall be during normal business hours) to
the Aircraft as may be requested by Lessor in order to permit Lessor to monitor the condition and status of the Aircraft, including, without limitation, access to the Technical Records. |
ARTICLE 18: DISPUTES
| | |
| --- | --- |
| 18.1 | In the event any dispute, claim or controversy arising under or in connection with this Lease results in litigation between Lessor and Lessee, then the successful party in the
litigation shall be entitled to recover its reasonable attorneys’ fees in prosecuting and/or defending the litigation. |
ARTICLE 19:
MISCELLANEOUS
| | |
| --- | --- |
| 19.1 | This Lease may not be amended except in writing signed by duly authorized representatives of both parties. |
| | |
| --- | --- |
| 19.2 | Any forbearance or indulgence by Lessor hereunder, regardless of its nature or duration, shall not constitute in any circumstance a waiver of any of Lessor’s rights or
remedies. |
| | |
| --- | --- |
| 19.3 | Any provision of this Lease which is unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition; however, such
unenforceability in any such jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. |
28 | 214 |
agreement_14.md | | | |
| --- | --- |
| 19.4 | Time is of the essence with respect to all of the provisions of this Lease. |
| | |
| --- | --- |
| 19.5 | The headings to the various Articles herein are for convenience only and do not define or limit the terms thereof. |
| | |
| --- | --- |
| 19.6 | If Lessee fails to pay or perform any obligations payable or performable under this Lease, Lessor may, at its option, cure such failure at Lessee’s expense.
|
| | |
| --- | --- |
| 19.7 | THIS LEASE IS MADE AND ENTERED INTO IN THE STATE OF KANSAS AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF KANSAS (AND THE CAPE TOWN TREATY). THE
PARTIES AGREE THAT ANY LEGAL PROCEEDING BASED UPON THE PROVISIONS OF THIS LEASE SHALL BE BROUGHT IN EITHER THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS AT WICHITA, KANSAS, OR IN THE STATE DISTRICT COURT (EIGHTEENTH JUDICIAL DISTRICT)
OF SEDGWICK COUNTY, KANSAS, TO THE EXCLUSION OF ALL OTHER COURTS. THE PARTIES CONSENT AND AGREE TO BE SUBJECT TO THE JURISDICTION OF THE AFORESAID COURTS IN ANY SUCH PROCEEDINGS. | | 215 |
agreement_14.md | | | |
| --- | --- |
| 19.8 | Upon termination of this Lease for any reason or return of the Aircraft to Lessor (by repossession or otherwise), Lessee will execute a lease termination acceptable to Lessor and in
a form necessary to terminate this Lease of record with the FAA and/or discharge or consent to a discharge of the registration of the International Interest created hereby on the International Registry. | | 216 |
agreement_14.md | | | |
| --- | --- |
| 19.9 | Lessee hereby appoints Lessor as its attorney-in-fact with right of substitution to, in the case of an Event of Default, execute any and all documents, permits, applications,
instructions discharges, lease terminations or other instruments necessary to terminate Lessee’s interests under this Lease, discharge any interest on the International Registry, and to assert, pursue, litigate and settle any insurance or other
claims for any loss or damage and collect any insurance or other proceeds pertaining to any Aircraft (including, but not limited to, endorsing Lessee’s name on all instruments and other remittances payable to Lessee with respect to such
insurance or other proceeds thereof) take any other action or execute any other document required to be taken or executed by Lessee with respect to such Aircraft. Lessor’s performance of such actions or execution of such documents shall be
taken or not taken in its sole discretion and shall not relieve Lessee from any obligation or cure any default under this Lease. This power of attorney is coupled with an interest and is irrevocable and shall be in force for the latter of five
(5) years or termination of this Lease. Lessee shall also provide an originally certified board resolution authorizing the execution of this Lease and the power of attorney granted herein. If Lessor is required to evidence an Event of Default
with the FAA in order to execute a lease termination on behalf of the Lessee, Lessee agrees that the FAA may rely on a unilateral statement by Lessor that there has been an Event of Default hereunder. |
29 | 217 |
agreement_14.md | | | |
| --- | --- |
| 19.10 | This Lease constitutes the entire agreement between and among the parties with respect to the subject matter hereof. All Exhibits attached to this Lease are hereby incorporated as
an integral part of this Lease. There are no written or oral understandings, agreements, representations or warranties between the parties which are not expressly set forth herein. This Lease supersedes and merges all prior agreements and
understandings between the parties, both written and oral. |
| | |
| --- | --- |
| 19.11 | This Lease and the Exhibits attached hereto are confidential between Lessor and Lessee. The terms and conditions set forth herein may not be disclosed in any fashion, either in
whole or in part, to any third party (excluding governmental authorities and the disclosing party’s legal counsel, financial institution and accountants, and further excluding any disclosure required by applicable Federal or State laws,
including securities laws) unless the party desiring to make such disclosure first obtains the express written approval of the other party. |
ARTICLE 20: EARLY TERMINATION OPTION
| | |
| --- | --- |
| 20.1 | Both Lessee and Lessor shall have the right and option to terminate this Lease prior to the expiration of the Lease Term (“Early Termination Option”) pursuant to
the terms set forth in this Article 20. | | 218 |
agreement_14.md | | | |
| --- | --- |
| 20.2 | Lessee may exercise the Early Termination Option by serving written notice on Lessor of its intent to terminate this Lease, which notice must be served no less than ninety
(90) calendar days prior to the date on which Lessee proposes to terminate the Lease; provided that the date upon which Lessee proposes to terminate the Lease must be on or after the first anniversary of the Lease Commencement Date.
Lessee’s exercise of the Early Termination Option is subject to the following conditions: (a) Lessee has determined in good faith, subject to Lessor’s reasonable verification, that it is unprofitable for Lessee to utilize the Aircraft
in conjunction with Lessee’s essential air service program operations, and (b) Lessee shall return the Aircraft to Lessor in accordance with the provisions of Article 14 of the Lease Agreement. |
| | |
| --- | --- |
| 20.3 | Lessor may exercise the Early Termination Option, for any reason, by serving written notice on Lessee of its intent to terminate this Lease, which notice must be served no less than
ninety (90) calendar days prior to the date on which Lessor proposes to terminate the Lease; provided that the date upon which Lessor proposes to terminate the Lease must be on or after the first anniversary of the Lease Commencement Date. In
the event that Lessor exercises the Early Termination Option, Lessee shall return the Aircraft to the Lessor in accordance with the provisions of Article 14 of the Lease Agreement. |
[Remainder of page is blank.]
30 | 219 |
agreement_14.md | IN WITNESS OF the mutual promises, covenants and agreements set forth above, the parties have caused
their duly authorized officers to execute this Lease at Wichita, Kansas, on the date and year indicated below.
| | | | | |
| --- | --- | --- | --- | --- |
| | | | | |
| RAYTHEON AIRCRAFT CREDIT CORPORATION |
| | |
| By: | | |
| | | David A. Williams |
| | | Vice President – General Counsel |
| | | | | |
| --- | --- | --- | --- | --- |
| | | | | |
| | |
| Date of Execution: | | |
| |
| “Lessor” |
| | | | | |
| --- | --- | --- | --- | --- |
| | | | | |
| |
| GREAT LAKES AVIATION, LTD. |
| | |
| By: | | |
| | | Michael Matthews |
| | | Vice President & Chief Financial Officer |
| | | | | |
| --- | --- | --- | --- | --- |
| | | | | |
| | |
| Date of Execution: | | |
| |
| “Lessee” |
31 | 220 |
agreement_14.md | **Exhibit A**
**Additional Lease Details**
Aircraft:
Manufacturer’s Serial Number:
Registration Number:
| | |
| --- | --- |
| (1) | Article 2.1: Lease Term: |
| | |
| --- | --- |
| (2) | Article 2.2: Rental Payments: |
| | |
| --- | --- |
| (3) | Article 2.4: Security Deposit: |
| | |
| --- | --- |
| (4) | Article 7.8(B): Consumption Fee: |
| | |
| --- | --- |
| (5) | Article 9.1(A): Stipulated Value: |
| | |
| --- | --- |
| (6) | Engines – Special Provisions: |
32 | 221 |
agreement_14.md | **EXHIBIT B**
**Certificate of Final Acceptance**
This Certificate of Final Acceptance is delivered on the date set out below
by Great Lakes Aviation, Ltd. (“Lessee”) to Raytheon Aircraft Credit Corporation (“Lessor”) pursuant to the Operating Lease Agreement dated
, between Lessor and Lessee (the “Lease”). The capitalized terms used in this Certificate shall have the meaning given
to such terms in the Lease.
| | |
| --- | --- |
| 1. | **DETAILS OF THE ACCEPTANCE** |
Lessee hereby confirms to Lessor that
Lessee has, at o’clock on this day of , accepted the following, in the condition required and in
accordance with the provisions of the Lease: | 222 |
agreement_14.md | | | | | | | | | | | | |
| --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- |
| | | | | | | | | | | |
| (a) | | Aircraft: | | | | Beech 1900D Airliner¹ (described as
BEECH AIRCRAFT CORPORATION Model 1900D on the International Registry drop down menu) Serial Number: FAA Registration No.:
|
| | | |
| (b) | | Engines: | | |
| | | |
| | | (c) | | Propellers: |
| | |
| (d) | | Loose Equipment Check List and Manuals & Records:
|
| | |
| --- | --- |
| ¹ | The airframe is type certified to transport at least eight persons including crew, or goods in excess of 2750 kilograms. |
| | |
| --- | --- |
| ² | Each of the propellers have at least 750 rated take off shaft horsepower. |
33 | 223 |
agreement_14.md | | | | | | | | | | |
| --- | --- | --- | --- | --- | --- | --- | --- | --- |
| | | | | | | | | |
| (e) | | Status: | | | | | | |
| | | | | |
| | | Aircraft Total Time: | | | | Hours | | |
| | | | | |
| | | Flight Hour Meter: | | | | Hours | | |
| | | | | |
| | | Total Cycles: | | | | | | |
| | | | | |
| | | Delivery Location: | | | | | | |
| | |
| --- | --- |
| 2. | **CONFIRMATION** |
Lessee confirms to Lessor that as at the time
indicated above, being the delivery:
| | |
| --- | --- |
| (a) | the representations and warranties contained in the Lease are hereby repeated; |
| | |
| --- | --- |
| (b) | the aircraft is insured as required by the Lease; and | | 224 |
agreement_14.md | | | |
| --- | --- |
| (c) | Lessee’s authorized technical experts have thoroughly examined and inspected the Aircraft to ensure the aircraft conforms to Lessee’s requirements. The Aircraft is in
accordance with the specifications of the Lease and satisfactory in all respects. |
| | |
| --- | --- |
| 3. | **IN WITNESS WHEREOF** |
Lessee has, by its duly authorized
representative, executed this Certificate on the date in Paragraph 1 above.
| | | |
| --- | --- | --- |
| | | |
| GREAT LAKES AVIATION, LTD. |
| | |
| By: | | |
| | | |
| --- | --- | --- |
| | | |
| | |
| Print Name: | | |
| | | |
| --- | --- | --- |
| | | |
| | |
| Title: | | |
34 | 225 |
agreement_15.md | EX-10.3
4
cg2018331exhibit103.htm
EXHIBIT 10.3
Exhibit
Exhibit 10.3 AMENDED AND RESTATED NON-EXCLUSIVE AIRCRAFT LEASE AGREEMENT
| |
| --- |
| |
| |
| Dated as of the 12 day of April, 2018 |
| between |
| KEWSONG LEE |
| as Lessor, |
| and |
| CARLYLE INVESTMENT MANAGEMENT L.L.C. |
| as Lessee, |
concerning one (1) 2011 Gulfstream aircraft bearing U.S. registration number N300AY,
and manufacturer's serial number 5309
| |
| --- |
| |
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| 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 AdministrationAircraft Registration BranchATTN: Technical SectionP.O. Box 25724Oklahoma 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 StandardsDistrict Office located nearest the departure airport.
Carry a copy of this Amended and Restated Non-Exclusive Aircraft Lease Agreement in the aircraft at all times.
\* \* \*
Schedule A contains only economic rental data and isintentionally omitted for FAA submission purposes.
-1- | 226 |
agreement_15.md | This AMENDED AND RESTATED NON-EXCLUSIVE AIRCRAFT LEASE AGREEMENT (the "Agreement") is entered into as of April 12, 2018 (the "Effective Date"), by and between KEWSONG LEE ("Lessor"), and CARLYLE INVESTMENT MANAGEMENT L.L.C. ("Lessee").
W I T N E S S E T H :
WHEREAS, on September 29, 2017 the Lessor and the Lessee entered into a Non-Exclusive Aircraft Lease Agreement (the "Original Lease) in regard to one (1) 2008 Bombardier CL300 aircraft bearing U.S. registration number N585LE, and manufacturer's serial number 20191(“Original Aircraft”);
WHEREAS, as of the Effective Date the Lessor has disposed of the Original Aircraft and is the lessee of the Aircraft described and referred to herein;
WHEREAS, Lessee and Lessor desire to amend and restate in its entirety the Original Lease of the Original Aircraft as provided for herein and to substitute the Original Aircraft with Aircraft and 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
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| 1.1 | The following terms shall have the following meanings for all purposes of this Agreement: | | 227 |
agreement_15.md | "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.
"Airframe" means that certain Gulfstream G550 aircraft bearing U.S. registration number N330AY, and manufacturer's serial number 5309 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.
-2- | 228 |
agreement_15.md | "Engines" means two (2) Rolls-Royce BR710C4-11 engines bearing manufacturer’s serial numbers 15747 and 15748 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.
"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 Westchester County Airport, New York or such other location agreed to by Lessor and Lessee.
“Original Aircraft” shall have the meaning provided for in the first Whereas clause herein. | 229 |
agreement_15.md | “Original Aircraft” shall have the meaning provided for in the first Whereas clause herein.
“Original Lease” shall have the meaning provided for in the first Whereas clause herein.
"Operational Control" has the same meaning given the term in Section 1.1 of the FARs.
“Owner” means KZ Partners, Inc.
"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.
-3- | 230 |
agreement_15.md | "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.
SECTION 2. LEASE AND DELIVERY OF THE AIRCRAFT
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| 2.1 | Amendment and Restatement. The Original Lease of the Original Aircraft is hereby amended and restated in its entirety as provided for herein and the Original Aircraft is substituted with Aircraft, and Lessee hereby leases from the Lessor, and Lessor hereby leases to Lessee, the Aircraft, upon and subject to the terms and conditions of this Agreement | | 231 |
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| 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. |
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| 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. | | 232 |
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| 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
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| 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 |
-4- | 233 |
agreement_15.md | 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.
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| 3.2 | Scheduling. Lessee's use of the Aircraft during the Term of this Agreement is non-exclusive. The parties agree as follows: |
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| (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. |
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| (b) | Designation of Schedule Keeper. Lessor shall advise Lessee of the individual or entity that will coordinate the scheduling of the Aircraft. | | 234 |
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| (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. |
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| 3.3 | Rent. 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. |
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| 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 | 235 |
agreement_15.md | SECTION 4. REPRESENTATIONS AND WARRANTIES; DISCLAIMER OF WARRANTIES
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| 4.1 | Representations and Warranties of Lessee. Lessee represents and warrants as of the date hereof and during the entire Term hereof as follows: |
-5- | 236 |
agreement_15.md | 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 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. 4.1.6 Lessee acknowledges and agrees that if it exercises operational control over the Aircraft under 14 C.F.R. Part 91, it shall be independently responsible for the safety of the flight operations and for complying with all applicable laws and insurance requirements relating to the possession, operation, and maintenance of the Aircraft.
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| 4.2 | Intentionally Omitted. | | 237 |
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| 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 INTERRUPTION OF SERVICE, LOSS OF BUSINESS OR ANTICIPATED PROFITS OR CONSEQUENTIAL DAMAGES. LESSEE SHALL INDEMNIFY, DEFEND AND HOLD LESSOR HARMLESS FROM AND AGAINST ANY |
-6- | 238 |
agreement_15.md | 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.
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| SECTION 5. | REGISTRATION, USE, OPERATION, MAINTENANCE AND POSSESSION |
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| 5.1 | Title and Registration. Title to the Aircraft shall remain vested in Owner 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. | | 239 |
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| 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. | | 240 |
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| 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- | 241 |
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| 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. |
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| 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. |
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| 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. | | 242 |
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| 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. |
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| 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. |
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| 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. | | 243 |
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| 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. |
SECTION 6. CONDITION DURING TERM AND RETURN OF AIRCRAFT
-8- | 244 |
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| 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
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| 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 | 245 |
agreement_15.md | SECTION 8. INSURANCE
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| 8.1 | Liability. Lessor shall maintain, or cause to be maintained, bodily injury and property damage, liability insurance in an amount no less than Three Hundred Million United States Dollars (USD$300,000,000.00) Combined Single Limit for the benefit of itself and Lessee and their respective directors, officers, employees and agents as named insureds in connection with the use of the Aircraft by Lessee as operator. Said policy shall be an occurrence policy and shall also include as additional insured Lessee and its affiliated companies and their officers, directors employees and agents (“Additional Insureds”). |
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| 8.2 | Hull. Lessor shall maintain aircraft hull insurance in the amount of twenty six million United States Dollars (US$26,000,000) 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 Insureds. |
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| 8.3 | Insurance Certificates. Lessor will provide Lessee with a Certificate of Insurance upon execution of this Agreement and thereafter reasonably upon request therefor. | | 246 |
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| 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 |
-9- | 247 |
agreement_15.md | 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 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.
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| 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.
SECTION 10. NOTICES | 248 |
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| 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 e-mail (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: |
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| If to Lessor: | Kewsong Lee |
####################E-mail: Kewsong.Lee@carlyle.com
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| If to Lessee: | Carlyle Investment Management L.L.C. |
1001 Pennsylvania Ave. NWSuite 220Washington, DC 20004Attn: Jeffrey FergusonE-mail: [Jeffrey.Ferguson@carlyle.com](https://www.sec.gov/Archives/edgar/data/1527166/000152716618000016/cg2018331exhibit103.htm#)
SECTION 11. EVENT OF LOSS AND INDEMNIFICATION
-10- | 249 |
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| 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.
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| 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. | | 250 |
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| 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
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| 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. |
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| 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. | | 251 |
agreement_15.md | | | |
| --- | --- |
| | |
| 12.3 | Prohibited and Unenforceable Provisions. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and |
-11- | 252 |
agreement_15.md | 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. | | 253 |
agreement_15.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 State of New York and shall in all respects be governed by, and construed in accordance with, the laws of the State of New York, 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 State of New York. 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- | 254 |
agreement_15.md | SECTION 13. TRUTH IN LEASING
| | |
| --- | --- |
| | |
| 13.1 | THE PURPOSE OF THIS PROVISION IS TO COMPLY WITH 14 CODE OF FEDERAL REGULATIONS PART 91.23 ENTITLED “TRUTH IN LEASING”. |
(a) OWNER CERTIFIES THAT THE AIRCRAFT HAS BEEN INSPECTED AND MAINTAINED IN ACCORDANCE WITH THE PROVISIONS OF THE FEDERAL AVIATION REGULATIONS (“FAR”), PART 135 AND ALL APPLICABLE REQUIREMENTS FOR THE MAINTENANCE AND INSPECTION THEREUNDER HAVE BEEN MET DURING SUCH PORTION OF THE 12 MONTH PERIOD PRECEDING THE DATE OF THIS AGREEMENT AS THE AIRCRAFT HAS BEEN OWNED BY THE OWNER.
(b) LESSEE CERTIFIES THAT THE AIRCRAFT WILL BE MAINTAINED AND INSPECTED UNDER FAR PART 91 FOR OPERATIONS TO BE CONDUCTED UNDER THIS AGREEMENT.
(c) LESSEE UNDERSTANDS AND CERTIFIES THAT IT IS RESPONSIBLE FOR OPERATIONAL CONTROL OF THE AIRCRAFT WHEN THE AIRCRAFT IS OPERATED PURSUANT TO THIS AGREEMENT; AND LESSEE UNDERSTANDS ITS RESPONSIBILITIES FOR COMPLIANCE WITH APPLICABLE FARS.
(d) OWNER AND LESSEE UNDERSTAND 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.
-13- | 255 |
agreement_15.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:
Kewsong Lee
By: /s/ Kewsong Lee Print: Kewsong LeeTitle:
LESSEE:
Carlyle Investment Management L.L.C.
By: /s/ Pamela L. Bentley Print: Pamela L. BentleyTitle: Chief Accounting Officer
-14-
---
NON-EXCLUSIVE AIRCRAFT LEASE AGREEMENT
Schedule A
Hourly Rent: $3721.87 per Flight Hour | 256 |
agreement_15.md | NON-EXCLUSIVE AIRCRAFT LEASE AGREEMENT Schedule A-1
Supplement No. \_\_\_ to Non-Exclusive Aircraft Lease Agreement
Supplement No. \_\_\_ dated \_\_\_\_\_\_\_\_\_\_ \_\_\_, 20\_\_ (this “Supplement”), is between Kewsong Lee ("Lessor"), and Carlyle Investment Management L.L.C. ("Lessee") and relates to that certain Non-Exclusive Aircraft Lease Agreement dated as of \_\_\_\_\_\_\_\_\_ \_\_\_, 2017 (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] | 257 |
agreement_15.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:
Kewsong Lee
By: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_Print: Title:
LESSEE: Carlyle Investment Management L.L.C.
By: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_Print: Title: | 258 |
agreement_15.md | NON-EXCLUSIVE AIRCRAFT LEASE AGREEMENT
Schedule B
FSDO Notification Letter
[ date ]
Via Facsimile Fax: [ applicable FSDO office fax number ]
Federal Aviation Administration[ ] FSDO Office[FSDO Address]
| | |
| --- | --- |
| | |
| RE: | FAR Section 91.23 FSDO Notification |
First Flight Under Lease of one [aircraft type] Aircraft Model [ ] bearing U.S. registration number N[ ] and manufacturer’s serial number [ ].
To whom it may concern:
Pursuant to the requirements of Federal Aviation Regulation Section 91.23(c)(3), please accept this letter as notification that the undersigned will acquire and take delivery of a leasehold interest in the above referenced aircraft on or about the [ ] day of [ ], 2018, and that the first flight of the aircraft under the lease will depart from [ ]Airport on the [ ] day of [ ], 2018, at approximately [ ] local time.
Should you require any additional information, please contact my pilot, [ ], at telephone: [ ]
Sincerely,
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
[ ], Lessee | 259 |
agreement_16.md | EX-10.11(B)
2
0002.htm
AIRCRAFT LEASE EXTENSION
Aircraft Lease Extension - Exhibit 10.11(b) | 260 |
agreement_16.md | EXECUTION VERSION
AIRCRAFT LEASE EXTENSION AND AMENDMENT AGREEMENT No. 2
Dated as of September 29, 2000
Between
GENERAL ELECTRIC CAPITAL CORPORATION
as Lessor
and
FRONTIER AIRLINES, INC.
as Lessee
in respect of
Aircraft Lease Agreement dated as of October 20, 1995
relating to one Boeing 737-301 aircraft manufacturer's serial number 23257
THIS AGREEMENT is dated as of September 29, 2000
BETWEEN:
GENERAL ELECTRIC CAPITAL CORPORATION, a company incorporated under the laws of New York whose headquarters
are at 260 Long Ridge Road, Stamford, CT 06927 ("Lessor"); and
FRONTIER AIRLINES, INC., a company incorporated under the laws of Colorado whose headquarters are at 12015
East 46th Avenue, Denver, Colorado 80239 ("Lessee").
WHEREAS: | 261 |
agreement_16.md | WHEREAS:
(A) By an Aircraft Lease Agreement dated as of October 20, 1995 as amended and supplemented by Letter
Agreement No. 1 dated as of October 20, 1995, and as further amended and supplemented by an
Aircraft Lease Extension and Amendment Agreement dated as of October 1, 1999 and an Amendment to
Letter Agreement No. 1 dated as of October 1, 1999 (as further amended, modified and supplemented
from time to time, the "Lease"), Lessor leased to Lessee and Lessee took on lease one Boeing
737-301 aircraft with manufacturer's serial number 23257, together with the engines (each having
750 or more rated takeoff horsepower) installed thereon, all more fully identified in Schedule 1
hereto, together with the related parts and equipment (collectively, the "Aircraft") on the terms
and subject to the conditions contained therein.
(B) Interests in the Aircraft and such engines are affected by the Lease and the other instruments
identified (together with information respecting their recordation by the FAA under the Federal
Aviation Act) in Schedule 2 hereto.
(C) Lessor and Lessee wish to enter into this Agreement for the purpose of extending the term of the
Lease and making certain further amendments to the Lease.
IT IS AGREED as follows:
1. INTERPRETATION
1.1 Definitions: Capitalised terms used herein but not defined shall have the respective meanings
ascribed to such terms in the Lease. In this Agreement "Extended Lease" means the Lease as
amended by this Agreement.
1.2 Construction: The provisions of Clause 1.2 (Construction) of the Lease shall apply to this
Agreement as if the same were set out in full herein.
2. REPRESENTATIONS AND WARRANTIES | 262 |
agreement_16.md | 2. REPRESENTATIONS AND WARRANTIES
Lessee hereby repeats the representations and warranties in Clause 2.1 of the Lease as if made with
reference to the facts and circumstances existing as at the date hereof and as if the references in
such representations and warranties to "this Agreement" referred to the Lease as amended by this
Agreement.
3. LEASE EXTENSION
Lessor and Lessee hereby agree (subject to satisfaction of the conditions specified in Clause 5) to
extend the period for which the Aircraft is leased to Lessee pursuant to the Lease from the current
Expiry Date of February 23, 2003 to September 30, 2003. Accordingly, the Lease is hereby amended
(subject to satisfaction of the conditions specified in Clause 5) by deleting it in its entirety and
replacing it with the following:
Expiry Date September 30, 2003 or if earlier the date on which:
(a) Lessor, acting in accordance with the terms of this Agreement terminates the leasing of the Aircraft
to Lessee under this Agreement; or
(b) Lessor receives the Agreed Value together with any other amounts then due and unpaid by Lessee
following an Event of Loss.
4. OTHER AMENDMENTS TO LEASE
4.1 Other Amendments: The Lease shall be further amended (subject to satisfaction of the conditions
specified in Clause 5) as follows:
4.1.1 The following definitions shall be added in the appropriate alphabetical order in Clause 1.1:
"Pre-Approved Bank Wells Fargo Bank, N.A."
"Letter of Credit as defined in Clause 5.1 hereof."
"Required LC Expiry Date" the date which is 91 days after the Expiry Date."
4.1.2 Clause 5.1 is hereby amended and restated its entirety as follows:
"5.1 Deposit: | 263 |
agreement_16.md | 4.1.2 Clause 5.1 is hereby amended and restated its entirety as follows:
"5.1 Deposit:
(a) Lessee shall pay to Lessor a Deposit in the amount set forth in the definition of that
term in Letter Agreement Number 1.
(b) In lieu of a cash Deposit, Lessee shall have the option to provide Lessor with a letter
of credit issued and payable by a Pre-Approved Bank or another bank reasonably
acceptable to Lessor in its reasonable discretion and in form and substance reasonably
acceptable to Lessor, and, if not issued by a Pre-Approved Bank or by the New York
branch of a major bank reasonably acceptable to Lessor in its reasonable discretion from
time to time, will be confirmed by and payable at the New York branch of a major bank
reasonably acceptable to Lessor in its reasonable discretion from time to time (the
"Letter of Credit"). The Letter of Credit will be issued in lieu of a cash Deposit as
security for all payment obligations of Lessee under the Lease and Other Agreements
(including any and all obligations to indemnify Lessor for Losses suffered or incurred
by it), which shall remain in full force and effect and may be drawn down by Lessor upon
demand at any time or times following the occurrence of an Event of Default until the
Required LC Expiry Date.
(c) With the prior written consent of Lessor, the Letter of Credit may have a validity
period or periods ending prior to the Required LC Expiry Date, provided that (i) the
Letter of Credit shall, in each case, be renewed and delivered to Lessor not later than
45 days prior to its expiry; and (ii) a Letter of Credit shall remain in force at all
times up to the Required LC Expiry Date. | 264 |
agreement_16.md | (d) If at any time during the Term, Lessor reasonably determines in its reasonable
discretion that the current issuing or confirming bank for the Letter of Credit is no
longer an acceptable issuing or confirming bank (whether by virtue of a material adverse
change in its financial condition, a decrease in any credit rating of its long-term
unsecured debt obligations, or for any other reason) Lessee shall promptly procure that
the Letter of Credit is replaced by a Letter of Credit issued by another bank reasonably
acceptable to Lessor in its reasonable discretion and (if reasonably requested by Lessor
in its reasonable discretion) that such replacement Letter of Credit is confirmed by
another bank reasonably acceptable to Lessor in its reasonable discretion.
(e) If Lessor makes a drawing under the Letter of Credit, Lessee shall, following a demand
in writing by Lessor, procure that the maximum amount available for drawing under the
Letter of Credit is promptly restored to the level at which it stood immediately prior
to such drawing.
(f) If Lessee elects to provide Lessor with a Letter of Credit in lieu of the cash Deposit
pursuant to the provisions of this Clause 5.1, then promptly upon receipt by Lessor of
such Letter of Credit, Lessor shall return such cash Deposit to Lessee. If at any time
thereafter a Letter of Credit shall not be in force and effect, then Lessee shall
promptly provide Lessor with a cash Deposit.
(g) So long as no Default or Event of Default then exists, Lessor shall refund to Lessee all
Deposits (if any) then held by Lessor or, as the case may be, return the Letter of
Credit upon return and final acceptance of the Aircraft by Lessor on the Expiry Date or
promptly after receipt of the Agreed Value after an Event of Loss. | 265 |
agreement_16.md | 4.1.3 Clause 7.3(b)(i) shall be amended by inserting the words "(if any) or, as the case may be, return
the Letter of Credit" immediately after the word "Deposit".
4.1.4 Clause 16.7 (a) shall be amended be deleting the Phrase beginning with the words "The U.N.
Convention" through the words ", and" at the end thereof and replacing them with the word "or".
4.1.5 The following sentence shall be added at the end of Clause 16.12(a):
"The U.N. Convention on Contracts for the International Sales of Goods is not applicable to this
Agreement and all of its terms must be construed in accordance with the Governing Law applicable
to domestic transactions in the jurisdiction to which the Governing Law pertains."
5. CONDITIONS PRECEDENT
5.1 Conditions: This Agreement and Lessor's obligation to extend the Term shall be subject to the
satisfaction of each of the following conditions and receipt of the following documents:
(a) Insurances: certificates of insurance, an undertaking from Lessee's insurance broker
and other evidence satisfactory to Lessor of Lessee's due compliance with the provisions
of the Lease (as extended hereby) regarding Insurances;
(b) Legal Opinion: a legal opinion from Lessee's counsel in form and substance reasonably
acceptable to Lessor;
(c) Filings and FAA Opinion: evidence of the recordation of this Amendment with the FAA
and, promptly after such recordation, provision by Lessee to Lessor of an opinion of FAA
counsel acceptable to Lessor who are recognized specialists with regard to FAA
registration matters in a form acceptable to Lessor acting reasonably as to the due
filing for recordation of this Amendment; | 266 |
agreement_16.md | (d) Certificate of Lease Termination: a replacement certificate of lease termination
executed by a duly authorized officer of Lessee, substantially in the form of Schedule 3
hereto, acknowledging that the Extended Lease is no longer in effect with respect to the
Aircraft, which certificate Lessor will hold in escrow to be filed at the FAA upon the
expiration of the Term or other termination of the leasing of the Aircraft to Lessee
pursuant to the Extended Lease.
(e) Other: such other documents as Lessor may reasonably request.
5.2 Further Conditions: The obligation of Lessor to extend the Term under this Agreement is subject
to the further condition that, as of February 23, 2003 (the Expiry Date prior to the amendment
contained herein), no Default or Event of Default shall have occurred and be continuing under the
Lease or any other Operative Document.
5.3 Waiver: The conditions specified in Clauses 5.1 and 5.2 are for the sole benefit of Lessor and
may be waived or deferred (in whole or in part and with or without conditions) by Lessor.
6. MISCELLANEOUS
6.1 Further Assurances: Lessee agrees from time to time to do and perform such other and further acts
and execute and deliver any and all such other instruments as may be required by law or reasonably
requested by Lessor to establish, maintain and protect the rights and remedies of Lessor and to
carry out and effect the intent and purpose of this Agreement.
6.2 Counterparts: This Agreement may be executed in any number of separate counterparts, and each
counterpart shall when executed and delivered be an original document, but all counterparts shall
together constitute one and the same instrument. | 267 |
agreement_16.md | 6.3 Governing Law: The provisions of Clause 16.12 (Governing Law and Jurisdiction) of the Lease shall
apply to this Agreement as if the same were set out in full herein.
6.4 Variation: The provisions of this Agreement shall not be varied otherwise than by an instrument
in writing executed by or on behalf of Lessor and Lessee.
6.5 Invalidity of any Provision: If any provision of this Agreement becomes invalid, illegal or
unenforceable in any respect under any law, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired.
6.6 Costs and Expenses: In accordance with Clause 16.9 of the Lease, Lessee shall bear the costs and
expenses associated with this extension and amendment of the Lease, including without limitation
the costs and expenses of legal counsel providing the legal opinions referenced in Clause 5.1
7. CONTINUATION OF LEASE
Save as expressly amended by this Agreement, the Lease shall continue in full and unvaried force
and effect as the legal, valid and binding rights and obligations of each of Lessor and Lessee
enforceable in accordance with their respective terms.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the day and year first above written.
Signed for and on behalf of
GENERAL ELECTRIC CAPITAL CORPORATION
By: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Title: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Signed for and on behalf of
FRONTIER AIRLINES, INC.
By: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ | 268 |
agreement_16.md | By: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Title: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
SCHEDULE 1
DESCRIPTION OF AIRCRAFT
-----------------------
AIRCRAFT: N578US
Manufacturer: Boeing
Model: 737-301
Serial Number 23257
ENGINES:
Type: CFM International Inc. CFM-56-3B2
Serial Nos.: 721160 and 725729
SCHEDULE 2
INSTRUMENTS
-----------
Aircraft Lease Agreement dated as of October 20, 1995, between General Electric Capital Corporation
as lessor and Frontier Airlines, Inc. as lessee, as supplemented by Lease Supplement No. 1 dated
October 24, 1995, recorded by the Federal Aviation Administration on December 20, 1995, as
Conveyance no. SS004071 (the "Lease")
SCHEDULE 3
[FORM OF]
CERTIFICATE OF LEASE TERMINATION
The undersigned hereby certify that the Aircraft Lease Agreement dated as of October 20, 1995, as
amended and supplemented from time to time, including, without limitation, by the Aircraft Lease Extension
and Amendment Agreement dated as of October 1, 1999 and by the Aircraft Lease Extension and Amendment
Agreement No. 2 dated as of September \_\_, 2000, and as further described in the Appendix attached hereto, has
terminated and the aircraft and the aircraft engines covered thereby are no longer subject to the terms
thereof. This certificate may be executed in one or more counterparts each of which when taken together
shall constitute one and the same instrument. | 269 |
agreement_16.md | DATED this \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ day of\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Lessor: Lessee:
GENERAL ELECTRIC CAPITAL FRONTIER AIRLINES, INC.
CORPORATION
By: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ By: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Title: Title: | 270 |
agreement_17.md | EX-10.1
2
dex101.htm
AMENDED AND RESTATED AIRCRAFT DRY LEASE AGREEMENT
Amended and Restated Aircraft Dry Lease Agreement
**Exhibit 10.1**
AMENDED AND RESTATED
AIRCRAFT DRY LEASE AGREEMENT
BETWEEN
LENNAR AIRCRAFT I, LLC
as Lessor
AND
US HOME CORPORATION
as Lessee
STUART MILLER
CHIEF EXECUTIVE OFFICER
LENNAR CORPORATION
as Optional Payor for
Payment Only
under Paragraph 4
Dated as of the 1st day of December, 2008
Lease of One (1) 2005 Bombardier Inc. CL-600-2B16
(a/k/a Bombardier Challenger 604),
Manufacturers Serial Number 5607
FAA Registration No. N954L | 271 |
agreement_17.md | **TABLE OF CONTENTS** | 272 |
agreement_17.md | | | | |
| --- | --- | --- |
| | | |
| 1. Lease | | 3 |
| | |
| 2. Definitions | | 3 |
| | |
| 3. Term | | 7 |
| | |
| 4. Rent; Unconditional Obligations; Security | | 7 |
| | |
| 5. Disclaimer; Assignment of Warranties | | 9 |
| | |
| 6. Delivery; Return | | 10 |
| | |
| 7. Representations and Warranties | | 11 |
| | |
| 8. Liens | | 13 |
| | |
| 9. Insurance | | 13 |
| | |
| 10. Taxes | | 14 |
| | |
| 11. Compliance with Laws; Location, Operation and Maintenance; Additions | | 17 |
| | |
| 12. Inspection | | 21 |
| | |
| 13. Identification | | 21 |
| | |
| 14. Certain Transactions | | 21 |
| | |
| 15. Loss or Damage | | 21 |
| | |
| 16. General Indemnity | | 22 |
| | |
| 17. Events of Default | | 24 |
| | | | 273 |
agreement_17.md | | | |
| 17. Events of Default | | 24 |
| | |
| 18. Remedies | | 26 |
| | |
| 19. Lessor’s Right to Perform | | 27 |
| | |
| 20. Assignment or Sublease | | 27 |
| | |
| 21. Further Assurances; Financial Information | | 28 |
| | |
| 22. Notices | | 28 |
| | |
| 23. Conditions Precedent | | 29 |
| | |
| 24. Miscellaneous | | 30 |
| | |
| 25. Truth-in-Leasing | | 32 | | 274 |
agreement_17.md | 2 | 275 |
agreement_17.md | **AMENDED AND RESTATED**
**AIRCRAFT LEASE AGREEMENT**
This **Amended and Restated Aircraft Lease
Agreement**, dated as of the 1st day of December, 2008 between **Lennar Aircraft I, LLC** (“Lessor”), Stuart Miller (“Optional Payor”), solely in his capacity as Chief Executive Officer of Lennar Corporation and solely with
respect to the payment of rent under paragraph 4 herein, and **US Home Corporation** (“Lessee”).
**1. Lease.**
a. Lessor agrees to lease to Lessee and Lessee agrees to lease from Lessor hereunder, on a non-exclusive basis, the aircraft which is
described in Section 2(a) hereof (the “Aircraft”), on a non-exclusive basis.
**2. Definitions.**
a. As used in this Lease, the following terms shall have the following meanings (such definitions to be equally applicable to both the singular and plural
forms of the terms defined):
“Affiliate” shall mean with respect to any Person, any Person which, directly or indirectly,
controls, is controlled by, or is under common control with such Person. For purposes of this definition, “control” of a Person means the power, direct or indirect, to vote ten percent (10%) or more of the securities having voting
power for the election of directors of such Person; or otherwise to direct or cause the direction of the management and policies of such person, whether by contract or otherwise.
“Aircraft” shall mean the Airframe to be leased hereunder together with the Engines to be leased hereunder whether or not any of the
Engines may at the time of determination be installed on the Airframe or any other airframe. | 276 |
agreement_17.md | “Airframe” shall mean the
Lease of One (1) 2005 Challenger 604, Manufacturers Serial Number 5607, FAA Registration No. N954L.
“Anti-Money Laundering
Laws” means those laws, regulations and sanctions, state and federal, criminal and civil, that (a) limit the use of and/or seek the forfeiture of proceeds from illegal transactions; (b) limit commercial transactions with
designated countries or individuals believed to be terrorists, narcotics dealers or otherwise engaged in activities contrary to the interests of the United States; (c) require identification and documentation of the parties with whom a
Financial Institution conducts business; or (d) are designed to disrupt the flow of funds to terrorist organizations. Such laws, regulations and sanctions shall be deemed to include the Patriot Act, the Bank Secrecy Act, the Trading with the
Enemy Act, 50 U.S.C. App. Section 1 et seq, the International Emergency Economic Powers Act, 50 U.S.C. Section 1701 et seg, and the sanction regulations promulgated pursuant thereto by the OFAC, as well as laws relating to prevention and
detection of money laundering in 18 U.S.C. Sections 1956 and 1957.
3 | 277 |
agreement_17.md | “Aviation Act” means the Federal Aviation Act of 1958, as amended.
“Bill of Sale” shall mean an FAA Bill of Sale whereby title to the Aircraft is in possession of the Lessor.
“Business Day” shall mean a day other than a Saturday, Sunday or legal holiday under the laws of the State of Florida.
“Cape Town Convention” shall mean the Convention and the Protocol.
“Code” shall mean the Internal Revenue Code of 1986, as it may be amended hereafter, or any comparable successor law.
“Commencement Date” shall mean the date of execution hereof by all parties.
“Convention” shall mean the Convention on International Interests in Mobile Equipment concluded in Cape Town, South Africa.
“Default” shall mean any event or condition which with notice, lapse of time or both would constitute an Event of Default.
“Engines” shall mean two (2) General Electric Model CF 34-3B jet aircraft engines, respectively bearing
Manufacturer’s Serial Nos. GE-E950299 and GE-E950296, each of which is rated at greater than seven hundred fifty (750) or more take off horsepower or its equivalent (and each of which is referred to herein as an “Engine”).
“Event of Default” shall have the meaning specified in Section 17 hereof. | 278 |
agreement_17.md | “Event of Default” shall have the meaning specified in Section 17 hereof.
“Event of Loss” shall mean, with respect to the Aircraft, an Engine or any Part thereof, any damage requiring the completion of an FAA
Form 337, “Major Repair and Alteration Statement” which results in the payment of an insurance settlement for the actual or constructive total loss of the Aircraft, Engine(s) or any such Part or the loss of use thereof due to the theft,
destruction, damage beyond repair or rendition thereof permanently unfit for normal use for any reason whatsoever, or the condemnation or grounding of all Learjet 60 series aircraft by any governmental authority for more than one year, or
confiscation or seizure of, or requisition of title to or use of the Aircraft.
“FAA” shall mean the Federal Aviation
Administration or any applicable successor governmental authority.
“Fair Market Sale Value” shall, at any time with
respect to the Aircraft, be equal to the sale value of the Aircraft which would be obtained in an arm’s-length transaction between an informed and willing seller under no compulsion to sell and an informed and willing buyer-user (other than a
lessee currently in possession or a used equipment or scrap dealer) under no compulsion to buy. For purposes of Section 6 and hereof, Fair Market Sale Value shall be determined by a recognized independent appraiser (at Lessee’s
4 | 279 |
agreement_17.md | sole expense) selected by Lessor, and reasonably satisfactory to Lessee, which determination shall be made on the assumption that the aircraft is free and
clear of all Liens and is in the condition and repair in which it is required to be returned pursuant to Section 6(a) hereof. For purposes of Section 18(c) hereof, Fair Market Sale Value shall be determined (at Lessee’s expense) by an
independent appraiser selected by Lessor, on an “as is, where is” basis, without regard to the assumptions set forth in the immediately preceding sentence; provided, that, if Lessor shall have sold the Aircraft pursuant to
Section 18(b) hereof prior to giving the notice referred to in Section 18(c) hereof, Fair Market Sale Value of the Aircraft shall be the net proceeds of such sale after deduction of all costs and expenses incurred by Lessor in connection
therewith; provided, further, that if for any reason Lessor is not able to obtain possession of the Aircraft pursuant to Section 18(a) hereof, the Fair Market Sale Value of the Aircraft shall be zero (and, in such event, upon payment by Lessee
of the amounts Lessee is obligated to pay pursuant to Section 18(c) hereof Lessor shall assign all its rights to such Aircraft or insurance proceeds to Lessee).
“International Interest” shall have the meaning set forth in the Cape Town Convention.
“Late Charge Rate” shall mean an interest rate per annum equal to the Reference Rate plus two percent (2%) per annum but not to exceed the highest rate permitted by applicable law. | 280 |
agreement_17.md | “Lease” and the terms “hereof”, “herein”, “hereto” and “hereunder”, when used in this Aircraft
Lease Agreement, shall mean and include this Aircraft Dry Lease Agreement as the same may from time to time be amended, modified or supplemented.
“Lessor’s Cost” shall mean the total amount paid by the Lessor for the Aircraft.
“Lessor’s
Liens” shall mean any mortgage, pledge, lien, security interest, charge, encumbrance, financing statement, title retention, taxes or any other right or claim of any person claiming through or under Lessor other than the interest of the
Lessor as Owner and Lessor of the Aircraft hereunder.
“Liens” shall mean any mortgages, pledge, lien, security interest,
charge, encumbrance, financing statement, title retention or any other right or claim of any person with respect to the Aircraft, other than any Lessor’s Liens or Permitted Liens.
“Loss Payment Date” shall mean with respect to the Aircraft the date on which payment, as described in Section 15(b) hereof, is
made to the Lessor by the Lessee as the result of an Event of Loss with respect to the Aircraft. The Loss Payment Date shall be within one hundred twenty (120) days of the Rent Payment Date immediately following said Event of Loss.
“OFAC” means the Office of Foreign Assets Control, Department of the Treasury.
5 | 281 |
agreement_17.md | “Parts” shall mean any and all avionics, instruments, appliances, furnishings, repairs,
parts, appurtenances, accessories and other equipment and attachments incorporated or installed in or attached to the Airframe or any Engine and from time to time incorporated or installed in or attached to the Airframe or any Engine, together with
all additions, attachments or accessions to any of the foregoing and all replacements and substitutions for any of the foregoing.
“Patriot Act” means the USA PATRIOT Act of 2001, Pub. L. No. 107-56.
“Permitted Act” shall
mean (a) the execution and delivery by Lessee of this Lease and any proper attachment hereto; (b) the exercise of any purchase option pursuant to this Lease; and (c) any act that Lessee is required or expressly permitted to do
pursuant to this Lease or other agreement executed in connection herewith. | 282 |
agreement_17.md | “Permitted Liens” shall mean any of the
following: (a) the respective rights of Lessor and Lessee as herein provided; (b) the rights of others under agreements or arrangements only to the extent expressly permitted by the terms of Section 20; (c) Lessor’s Liens;
(d) Liens for taxes either not yet due or being contested in good faith (and for payment of which, to the extent required by GAAP adequate reserves have been provided) by appropriate proceedings conducted with due diligence so long as such
proceedings do not involve any material danger of the sale, forfeiture or loss of the Airframe or any Engine or interest therein; (e) materialmen’s, mechanics’, workmen’s, repairmen’s, or other like Liens arising in the
ordinary course of business for amounts the payment of which is either not yet delinquent or is being contested in good faith (and for the payment of which adequate reserves had been provided) by appropriate proceedings so long as such proceedings
do not involve any material danger of the sale, forfeiture or loss of the Airframe or any Engine or interest therein; (f) salvage rights of insurers under insurance policies maintained pursuant to Section 9; (g) Liens arising out of
judgments or awards against Lessee or a sublessee with respect to which at the time there shall have been secured a stay of execution and; (h) any other Lien with respect to which Lessee or sublessee shall have provided a bond or other security
in an amount and under terms reasonably satisfactory to Lessor. Lessee will promptly at its own expense, take such action as may be necessary duly to discharge (by bonding or otherwise) any such Lien not accepted above if the same shall arise at any
time. | 283 |
agreement_17.md | “Person” shall mean an individual, partnership, corporation, limited liability company, business trust, joint stock
company, trust, incorporated association, joint venture, governmental authority or other entity of whatever nature.
“Protocol” shall mean the protocol to the Convention on Matters Specific to Aircraft Equipment.
“Reference Rate” shall mean an implicit interest rate of eight and 50/100 percent (8.5%).
“Rent Payment
Date” shall mean each date on which an installment of rent is due and payable pursuant to the terms hereof.
6 | 284 |
agreement_17.md | “Specially Designated National and Blocked Persons” means those Persons that have been
designated by executive order or by the sanction regulations of OFAC as Persons with whom U.S. Persons may not transact business or must limit their interactions to types approved by OFAC.
“Stipulated Loss Value” shall mean Twenty Two Million Seven Hundred and Sixty Seven Thousand Four Hundred (U.S. $22,767,400.00) United
States Dollars; provided, that for purposes of Section 15(b) and Section 18(c) hereof, any determination of Stipulated Loss Value as of a date occurring after the final Rent Payment Date shall be made as of such final Rent Payment Date.
“Term” shall mean the term of the Lease of the Aircraft hereunder specified in Section 3 hereof.
b. All accounting terms not specifically defined herein shall be construed in accordance with generally accepted accounting principals (“GAAP”)
consistently applied.
**3. Term.** The term of the Lease of the Aircraft hereunder shall commence on the Commencement Date and
shall remain in full force and effect until terminated by either Lessor or Lessee upon thirty (30) days written notice prior to the effective date of such termination. Upon expiration of the Term, Lessee shall return the Aircraft to Lessor in
accordance with the terms of Section 6 hereunder.
**4. Rent; Unconditional Obligations; Security.** | 285 |
agreement_17.md | **4. Rent; Unconditional Obligations; Security.**
a. Lessee shall pay to Lessor, monthly, in advance, for the use of the Aircraft, the sum
of the management fees and costs, maintenance services and Aircraft operating expenses billed to US Home Corporation by its provider of Aircraft management services, plus the monthly cost of the
Aircraft under the Banc of America Lease, in United States dollars, plus applicable sales tax with the first such payment of rent with respect to the Aircraft being due on the first day of December, 2008, and a like amount on the
first day of each month thereafter for the full term of this Lease, or, if such date does not fall on a business day, on the first business day immediately succeeding such date. Notwithstanding the foregoing, Optional Payor may, at his sole
discretion and from time to time, pay the rent (or any portion thereof), due under this paragraph 4(a) provided, however, to the extent that the Optional Payor remits a portion of the rent, the Lessee shall pay the remaining portion of the rent.
b. Lessee shall also pay to Lessor, on demand, interest at a rate per annum equal to the Late Charge Rate on any installment of rent and
on any other amount owing hereunder which is not paid when due for any period for which the same shall be overdue. Each payment made under this Lease shall be applied first to the payment of interest then owing and then to rent or other amounts
owing hereunder. Interest shall be computed on the basis of a three hundred sixty (360) day year and actual days elapsed.
7 | 286 |
agreement_17.md | c. Each payment made under this Lease shall be applied first to the payment of interest then owing and
then to rent or other amounts owing hereunder. Interest shall be computed on the basis of a three hundred sixty (360) day year and actual days elapsed. Lessee shall also pay to Lessor, on demand, interest at a rate per annum equal to the Late
Charge Rate on any installment of rent and on any other amount owing hereunder which is not paid when due, for any period for which the same shall be overdue. Each payment made under this Lease shall be applied first to the payment of interest then
owing and then to rent or other amounts owing hereunder. Interest shall be computed on the basis of a three hundred sixty (360) day year and actual days elapsed. | 287 |
agreement_17.md | d. This Lease is a net lease, and Lessee’s obligation to pay all rent and all other amounts payable hereunder is ABSOLUTE AND UNCONDITIONAL under any and all circumstances, and shall not be effected by any
circumstances of any character whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense, abatement or reduction or any right which Lessee may have against Lessor, the manufacturer or supplier of the Aircraft
or anyone else for any reason whatsoever; (ii) any defect in the condition, design or operation of, or lack of fitness for use of, for any damage to, or loss of, all of any part of the Aircraft from any cause whatsoever; (iii) the
existence of any Liens with respect to the Aircraft; (iv) the invalidity, unenforceability or disaffirmance of this Lease or any other document related hereto; or (v) the prohibition of or interference with the use of possession by Lessee
of all or any part of the Aircraft, for any reason whatsoever, including without limitation, by reason of (1) claims for patent, trademark or copyright infringement; (2) present or future governmental laws, rules or orders; (3) the
insolvency, bankruptcy, or reorganization of any person; and (4) any other cause whether similar or dissimilar to the foregoing, any present or future law to the contrary notwithstanding. Lessee hereby waives, to the extent permitted by
applicable law, any and all rights which it may now have or which may at any time hereafter be conferred upon it, by statute or otherwise, to terminate, cancel, quit or surrender the lease of the Aircraft. If for any reason whatsoever this Lease, | 288 |
agreement_17.md | other than, as expressly provided herein, shall be terminated in whole or in part by operation of law or otherwise, Lessee will nonetheless pay to Lessor an amount equal to each installment of rent at the time such installment would have become due
and payable in accordance with the terms hereof. Each payment of rent or other amount paid by Lessee hereunder shall be final and Lessee will not seek to recover all or any part of such payment from Lessor for any reason whatsoever. | 289 |
agreement_17.md | e. Lessee agrees that this Dry Sublease is subject to the terms and provisions of that certain Aircraft Lease (S/N 5607) dated as of February 15,
2005 (the “Banc of America Lease”) between Banc of America Leasing & Capital, LLC (“Banc of America”) and Lessor, that certain Consent to Sublease and Assignment dated as of August 17, 2005 between Banc of America,
Lessor and Lessee and any related documents, agreements or instruments of any kind whatsoever. Without limiting the generality of the foregoing, the rights of Lessor, Lessee and any other party, person or entity of any kind whatsoever claiming
through any of Lessor or Lessee with respect to the Aircraft (and any and all proceeds thereof, including any insurance proceeds) shall be subject and
8 | 290 |
agreement_17.md | subordinate in all respects to any and all of the rights, privileges, powers, entitlements, benefits, remedies, title or interests of Banc of America in or
to the Aircraft (and any and all proceeds thereof, including any insurance proceeds), including all of its rights and remedies under or in connection with the Banc of America Lease and any related documents, agreements or instruments of any kind
whatsoever. In addition, and notwithstanding anything to the contrary set forth in this Dry Sublease or otherwise, upon the occurrence of any Event of Default (as such term is defined in the Banc of America Lease) under or in connection with the
Banc of America Lease, this Dry Sublease shall automatically and immediately terminate.
**5. Disclaimer; Assignment of Warranties.** | 291 |
agreement_17.md | **5. Disclaimer; Assignment of Warranties.**
a. LESSOR NEITHER MAKES NOR SHALL BE DEEMED TO HAVE MADE AND LESSEE HEREBY EXPRESSLY WAIVES ANY WARRANTY OR REPRESENTATION, EITHER
EXPRESS OR IMPLIED, AS TO THE AIRCRAFT INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OR REPRESENTATION AS TO THE DESIGN, QUALITY OR CONDITION OF THE AIRCRAFT OR ANY WARRANTY OF MERCHANTABILITY OR FITNESS OF THE AIRCRAFT FOR ANY PARTICULAR PURPOSE OR
TO AS TO ANY OTHER MATTER RELATING TO THE AIRCRAFT OR ANY PART THEREOF, EXCEPT THAT LESSOR WARRANTS THAT ON THE COMMENCEMENT DATE LESSOR HAS GOOD AND MARKETABLE TITLE TO THE AIRCRAFT AND THAT IT HAS THE RIGHT TO LEASE THE AIRCRAFT TO LESSEE PURSUANT
TO THIS AGREEMENT AND THAT THE AIRCRAFT WILL BE AVAILABLE FOR USE BY LESSEE. LESSEE ACKNOWLEDGES THAT THE USE AND OPERATION OF JET AIRCRAFT ARE ULTRAHAZARDOUS AND DANGERS ACTIVITIES. LESSEE IS A KNOWLEDGEABLE AND SOPHISTICATED USER OF JET AIRCRAFT
AND LESSOR SHALL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE SUSTAINED OR INCURRED DURING OR AFTER THE TERM HEREOF ARISING OUT OF THE USE OR OPERATION OF THE AIRCRAFT. LESSEE, FOR ITSELF, ITS SUCCESSORS, ASSIGNS AND ITS INVITEES WAIVES, RELINQUISHES
AND RENOUNCES ANY AND ALL DAMAGE CLAIMS AGAINST LESSOR WHICH LESSEE, ITS SUCCESSOR, ASSIGNS AND INVITEES CAN OR MAY HAVE AGAINST LESSOR ARISING FROM THE USE OR OPERATION OF THE AIRCRAFT. | 292 |
agreement_17.md | LESSEE CONFIRMS THAT IT HAS SELECTED THE AIRCRAFT AND EACH PART THEREOF ON THE BASIS OF ITS OWN JUDGMENT UTILIZING INDEPENDENT EXPERTS SELECTED BY LESSEE
AND EXPRESSLY DISCLAIMS RELIANCE UPON ANY STATEMENTS, REPRESENTATIONS OR WARRANTIES MADE BY LESSOR (OR ANY AGENT OR REPRESENTATIVE OR LESSOR), AND LESSEE ACKNOWLEDGES THAT LESSOR IS NOT A MANUFACTURER OR A VENDOR OF ANY PART OF THE AIRCRAFT.
LESSOR NEITHER MAKES NOR SHALL BE DEEMED TO HAVE MADE ANY REPRESENTATION OR WARRANTY AS TO THE ACCOUNTING TREATMENT TO BE ACCORDED TO THE
TRANSACTIONS CONTEMPLATED BY THIS LEASE OR AS TO ANY TAX CONSEQUENCES AND/OR TAX TREATMENT THEREOF.
9 | 293 |
agreement_17.md | b. Lessor hereby assigns to Lessee such right as Lessor may have (to the extent Lessor may validly assign
such rights, and to the extent same exist - no warranty or representation as to whether such warranties exist shall be deemed to have been made by Lessor) under all manufacturers’ and suppliers’ warranties with respect to the Aircraft
provided, however, that the foregoing rights shall automatically revert to Lessor upon the occurrence and during the continuance of any Event of Default hereunder, or upon the return of the Aircraft to Lessor. Lessee agrees to settle all claims with
respect to the Aircraft directly with the manufacturers or suppliers thereof, and to give Lessor prompt notice of any such settlement and the details of such settlement.
c. Lessor covenants that during the Term, as long as no Event of Default shall have occurred and be continuing, the Lessee’s or any sublessee’s possession, use and quiet enjoyment of the Aircraft leased
hereunder shall not be interrupted by Lessor.
**6. Delivery; Return.**
a. The Aircraft shall be delivered to Lessee at Opa-Locka Airport (““OPF””) in Miami-Dade County, Florida prior to each flight
operation of the Aircraft and shall be returned to Lessor by Lessee at such location mutually agreed upon by the parties immediately after each flight operation. Until the Aircraft is returned to Lessor pursuant to the provisions of this Section,
all of the provisions of this Lease with respect thereto shall continue in full force and effect. Lessee shall not cause or permit any distinctive markings to be placed on the Aircraft at any time. | 294 |
agreement_17.md | At the time of each return of the Aircraft by Lessee to Lessor after each flight operation conducted hereunder, the Lessee shall: (i) Insure that
the Aircraft is fully equipped and have installed thereon the Engines and any and all Parts as were installed or incorporated in or attached to the Aircraft as of the Commencement Date (or subject to such replacements, substitutions and changes
permitted by or required pursuant to the terms hereof subject to reasonable wear and tear and the use contemplated herein); (ii) Insure that the Aircraft shall be duly certified as an airworthy aircraft by the FAA and be returned with a valid
certificate of airworthiness issued under the Federal Aviation Regulations, or its equivalent and that the Aircraft will be in full compliance with the original type certificate data sheet; (iii) Insure that the Aircraft shall be in the
condition and repair required to be maintained by Section 11 hereof, free and clear of all Liens; (iv) Insure that Lessor shall receive all logs, manuals and data and all inspection, modification and overhaul records required to be
maintained with respect to the Aircraft under applicable rules and regulations of the FAA and any other governmental authority having jurisdiction which shall be complete and current through the date the Aircraft is received by Lessor. It is agreed
that Lessor shall maintain the original logs and Lessee shall maintain copies of the logs. Therefore, all original log entries shall be forwarded to Lessor by Lessee during the Term hereof and Lessee shall keep copies thereof; (v) Lessee shall
not permit more than one (1) cycle per every 1.2 hours of operation of the Aircraft.
10 | 295 |
agreement_17.md | b. Lessee shall be responsible for its allocated share of all normal maintenance of the Aircraft during
the Term hereof and shall pay for same when and as billed by the manager of the Aircraft. Lessee shall also be responsible for all maintenance resulting from Lessee’s abuse, misuse or improvident use and operation of the Aircraft.
**7. Representations and Warranties.** In order to induce Lessor to enter into this Lease and to Lease the Aircraft to Lessee hereunder,
Lessee represents and warrants that:
a. Organization. Lessee is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. For purposes of the Cape Town Convention, Lessee is situated in the “Contracting State” (as defined in the Cape Town Convention) of the United States of America.
b. Power and Authority. Lessee has full power, authority and legal right to execute, deliver and perform this lease and the execution, delivery
and performance of this Lease have been duly authorized by all necessary action of Lessee.
c. Enforceability. This Lease has been
duly executed and delivered by Lessee and constitutes a legal, valid and binding obligation of Lessee enforceable in accordance with its terms. | 296 |
agreement_17.md | d. Consents and Permits. The execution, delivery and performance of this Lease does not require any stockholder or member approval or approval or consent of any trustee or holders of any indebtedness or obligations of Lessee; and
will not contravene any law, regulation, judgment or decree applicable to Lessee, or the certificate of incorporation/ organization/formation or by-laws/regulations/operating agreement of Lessee; and will not contravene the provisions of, or
constitute a default under, or result in the creation of any Lien upon any property of Lessee under any mortgage, instrument or other agreement to which Lessee is a party or by which Lessee or its assets may be bound or affected.
e. Financial Condition of Lessee. The financial statements of Lessee heretofore furnished to Lessor present the financial condition of Lessee and
the results of its operations for the respective periods covered thereby, in accordance with GAAP (provided that interim financial statements provide summary information, omit certain footnote information, and are subject to normal year and
adjustments) and since December 31 of the year preceding of execution of this Lease there has been no material adverse change in such financial condition or operations.
11 | 297 |
agreement_17.md | f. No Litigation. There is no action, suit, investigation, or proceeding by or before any court,
arbitrator, administrative agency, or other governmental authority pending or threatened against or affecting Lessee (a) which involves the transactions contemplated by this Lease or the Aircraft; or (b) which, if adversely determined,
would reasonably be expected to have a material adverse effect on the financial condition, business or operations of Lessee.
g. No
Defaults. Lessee is not in default, and no event or condition exists which after giving of notice or lapse of time or both would constitute an event of default, under any mortgage, indenture, contract, agreement, judgment or other undertaking to
which Lessee is a party or which purports to be binding upon Lessee or upon any of its assets, except for any such default, event or condition which, individually or in the aggregate, would not materially affect Lessee’s ability to perform its
obligations under this Lease.
h. Information. All information supplied by Lessee or any Affiliate of Lessee, to Lessor or any
appraiser, with respect to the Aircraft or any part thereof, was accurate and complete at the time given and Lessee has notified Lessor of any material change in any information so supplied. | 298 |
agreement_17.md | i. No Warranties: Lessee has inspected the Aircraft utilizing the services of experts selected by Lessee, and at the time of delivery Lessee shall
be deemed to accept delivery of the Aircraft “AS IS, WHEREIS” and with all faults. Lessor makes no warranty concerning the Aircraft of any type, express or implied, including any warranty of fitness for a particular use or otherwise.
Lessee is knowledgeable and sophisticated in the use, maintenance and operation of aircraft and has selected this Aircraft based upon its own expertise, or the use of experts of its own selection, and is not relying upon any statement,
representation or warranty of Lessor, all of which are expressly excluded and disclaimed and all claims related thereto or arising therefrom are waived, relinquished and renounced by Lessee.
j. OFAC. Lessee is and will remain in full compliance with all laws and regulations applicable to it including, without limitation,
(i) ensuring that no person who owns a controlling interest in or otherwise controls Lessee is or shall be (Y) listed on the Specially Designated Nationals and Blocked Person List maintained by the Office of Foreign Assets Control
(“OFAC”), Department of the Treasury, and/or any other similar lists maintained by OFAC pursuant to any authorizing statute, Executive Order or regulation or (Z) a person designated under Section 1(b), (c) or (d) of
Executive Order No. 13224 (September 23, 2001), any related enabling legislation or any other similar Executive Orders, and (ii) compliance with all applicable Bank Secrecy Act (“BSA”) laws, regulations and government guidance on
BSA compliance and on the prevention and detection of money laundering violations.
k. Compliance with International Trade Control Laws
and OFAC Regulations. Lessee represents, warrants and covenants to and with Lessor that: | 299 |