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agreement_17.md | (i) They Lessee is not now nor
shall it be at any time until after the Term expires, a Person with whom a U.S. Person is prohibited from transacting business of the type contemplated by this Lease, whether such prohibition arises under U.S. law, regulation, executive orders and
lists published by the OFAC (including those executive orders and lists published by OFAC with respect to Specially Designated Nationals and Blocked Persons) or otherwise.
12 | 300 |
agreement_17.md | (ii) No Lessee and no Person who owns a direct or indirect interest in Lessee is now nor
shall be at any time until after this Lease is fully paid, a Person with whom a U.S. Person is prohibited from transacting business of the type contemplated by this Lease, whether such prohibition arises under U.S. law, regulation, executive orders
and lists published by the OFAC (including those executive orders and lists published by OFAC with respect to Specially Designated Nationals and Blocked Persons) or otherwise.
(iii) Lessee represents and warrants that it is in compliance with any and all applicable provisions of the Patriot Act.
**8. Liens.** Lessee will not directly or indirectly create, incur, assume or suffer to exist any lien on or with respect to the Aircraft. At
the time of execution hereof, there are no liens, security interests, mortgages, claims, charges, “international interests” (as defined in the Cape Town Convention or other encumbrances (whether or not registered or filed at the FAA or the
International Registry or elsewhere) (collectively, “Liens”) in or on the Aircraft, other than Liens in favor of Lessor or Lessor’s lender. | 301 |
agreement_17.md | **9. Insurance.** Lessee shall cause the manager of the Aircraft and the manager of the Aircraft shall obtain and maintain, at Lessee’s expense, which shall be maintained at all times on the Aircraft
(including the Airframe and Engines), “all-risk” aircraft physical damage insurance (covering ground, flight and taxiing exposures) and comprehensive general and aircraft liability insurance (covering bodily injury and property damage
exposures) including, but not limited to, passenger liability, third party liability, contractual liability insurance in such amounts against such risks and in such form, as is customary for corporations similarly situated as Lessee or otherwise as
shall be reasonably satisfactory to Lessor and with insurers or recognized responsibility; provided, that such insurance shall include, without limitation, the following: (i) “all-risk” physical damage insurance on the Aircraft
in an amount which shall not on any date be less than Twenty Two Million Eight Hundred Thousand (U.S. $22,800,000) United States Dollars with war risk coverage (to include seizure, detention and confiscation coverage) as well as legal liability and
hijacking coverage; (ii) comprehensive aircraft liability insurance in an amount which shall not on any date be less than Two Hundred Million (U.S. $200,000,000) United States Dollars and which shall name Lessor as additional insured; and
(iii) coverage against hijacking and acts of terrorism exposures in an amount which will be not less than Two Hundred Million (U.S. $200,000,000) United States Dollars internationally and Two Hundred Million (U.S. $200,000,000) United States
Dollars domestically and which shall name Lessor as loss payee and which, for liability purposes, shall name Lessor as additional insured. If the Aircraft is operated outside the continental
13 | 302 |
agreement_17.md | United States, in addition to the above requirements, War Risk Insurance, including Confiscation, Expropriation, Nationalization and Seizure is required to
be maintained. Additionally, each insurance policy shall, among other things, require that the insurer give Lessor at least thirty (30) days prior written notice (or such lesser period as may be applicable in case of war risk insurance)(at each
of the addresses of notice to Lessor set forth in Section 22 hereof) of any alteration in or cancellation of the terms of such policy, and require that the interest of Lessor (and Lessor’s lender, if any) be continued insured regardless of
any breach of or violation by Lessee of any warranties, declarations or conditions contained in such insurance policy. In no event shall Lessor be responsible for premiums, warranties, conditions or representations to any insurer or any agent
thereof. The insurance maintained by the manager of the Aircraft shall be primary without any right of contribution from insurance which may be maintained by Lessor. At Lessor’s request, Lessee shall request manager of the Aircraft to furnish
to Lessor a certificate or other evidence reasonably satisfactory to Lessor that such insurance coverage is in effect; provided, however, that Lessor shall be under no duty to ascertain the existence or adequacy of such insurance. An agreement by
the United States government or any subdivision or agency thereof to insure against or indemnify for substantially the same risks to at lease the same amount will satisfy the requirements of this Section 9.
**10. Taxes.** | 303 |
agreement_17.md | a. General Tax
Indemnity. Lessee shall pay, and on written demand indemnify, defend and hold Lessor harmless from and against, all fees, taxes (whether sales, use, excise, personal property or other taxes), imposts, duties, withholdings, assessments and other
governmental charges of whatever kind or character, however designated (together with any penalties, fines or interest thereon), all of the foregoing being herein collectively called “impositions” which are at any time levied or imposed
against or incurred with respect to Lessor, Lessee, this Lease, the Aircraft or any part thereof or interest therein by any federal, state or local government or taxing authority in the United States or by any foreign government or any subdivision
or taxing authority thereof upon, with respect to, as a result of or measured by (i) the Aircraft (or any part thereof or interest therein), or this Lease or the interest of Lessor therein; or (ii) the delivery, leasing, subleasing,
possession, maintenance, modification, repair, use, operation, registration or return of the Aircraft or any part thereof or (iii) the rentals, receipts or earnings payable under this Lease or otherwise arising from the Aircraft or any part
thereof or from the transactions contemplated by this Lease’ excluding, however, any impositions to the extent such impositions are (1) based on or measured by the gross or net income or capital of Lessor; (2) in the
nature of franchise or conduct or business taxes imposed on Lessor; (3) in the nature of minimum taxes for tax preferences imposed on Lessor; (4) the result of Lessor’s own bankruptcy or any act on the part of Lessor in contravention | 304 |
agreement_17.md | of the provisions of this Lease or any failure of Lessor to observe the provisions of this Lease; (5) imposed as a result of any voluntary sale, assignment, transfer, or other disposition by Lessor of any interest in the Aircraft or the Engines
unless such transfer or disposition occurs while an Event of Default by Lessee is continuing; (6) so long as no Default or Event of Default shall have occurred and be continuing, imposed with respect to acts or | 305 |
agreement_17.md | 14 | 306 |
agreement_17.md | events occurring or matters arising after the earlier of (A) the return of possession of the Aircraft to Lessor pursuant to the terms of the Lease and
the expiration or earlier termination of the Term, pursuant to Section 6 hereof, or (B) the discharge in full of Lessee’s obligation to pay Stipulated Loss Value or Termination Value and all other amounts due under the Lease;
(7) included in the computation of Lessor’s Cost; (8) imposed solely as a result of a transaction which is unrelated to the transactions contemplated under this Lease; (9) enacted or adopted expressly as a substitute for taxes
that would have been imposed on Lessor and not indemnified hereunder; (10) interest or penalties resulting from Lessor’s failure to file timely and proper returns unless such failure is a result of Lessee’s failure to provide Lessor
in a timely manner with any document or other information which this Section 10 requires Lessee to provide to Lessor; or (11) a result of the willful misconduct or gross negligence of Lessor; provided, however, that there
shall not be excluded by clause (1) or clause (2) any license, sales, use, rental, value-added or property tax or any Imposition which would not have been incurred but for, or to the extent increased as a result of, (i) the situs or
organization, any place of business or the activities of Lessee, any sublessee or any other user of the Aircraft in the jurisdiction imposing the tax, or (ii) the operation or location of the Aircraft (or any part thereof) in the jurisdiction | 307 |
agreement_17.md | imposing the tax, or (iii) the making of any payment contemplated by this Lease in or from the jurisdiction imposing the tax, or (iv) the execution, delivery or recording of this Lease or any document contemplated by this Lease in the
jurisdiction imposing the tax. | 308 |
agreement_17.md | To the extent permitted by applicable laws, Lessee shall pay or cause to be paid all Impositions
indemnified under this Section 10(a) directly to the appropriate taxing authority on or before the time, and in the manner, prescribed by applicable laws. Lessee shall pay each other amount required to be paid pursuant to this
Section 10(a) to Lessor within ten (10) days following Lessee’s receipt of Lessor’s demand for the payment accompanied by a written statement of Lessor describing in reasonable detail the Impositions for which Lessor is demanding
an indemnity and the computation of the amount of the indemnity being demanded. In case any report or return is required to be filed with respect to any Imposition indemnified by Lessee under this Section 10(a) or arising out of this
Section 10(a), Lessee shall notify Lessor of the requirement and, if permitted by applicable law, timely file the report or return with respect to the Imposition (except for any report or return that Lessor shall have notified Lessee that
Lessor intends to file) and send a copy of such report or return to Lessor; or if Lessee is not permitted by applicable law to file such report or return, notify Lessor of the requirement and prepare and deliver to Lessor a proposed form of the
report or return within a reasonable time prior to the time it is required to be filed. The obligations of Lessee under this Section 10(a) shall survive the expiration or earlier termination of this Lease. | 309 |
agreement_17.md | Upon Lessor’s request, Lessee will provide such documents and other information as Lessor may reasonably request from time to time to enable Lessor
to fulfill its tax filing, audit and related litigation obligations, including, but not limited to, log books with respect to the Aircraft and other records maintained by Lessee or any other user with respect to the Aircraft. Lessee shall indemnify
Lessor for all liabilities arising out of any insufficiency or inaccuracy of any report or return if the insufficiency or inaccuracy is the result of the inaccuracy of any information required to be supplied by Lessee to Lessor pursuant to this
Section 10.
15 | 310 |
agreement_17.md | Each indemnity pursuant to Section 16 or this Section 10 shall be in an amount which, after
taking into account all Impositions required to be paid by Lessor as a result of the receipt or accrual of the indemnity (determined by assuming that each indemnity received or accrued by Lessor will be subject to tax at the highest marginal
statutory rates of tax applicable to Lessor when such indemnity is received or accrued), shall be equal to the total amount of the indemnity that Lessee would be required to pay if Lessor were not subject to any Impositions as a result of the
receipt or accrual of the indemnity.
If Lessor receives written notice of a claim for any Imposition for which Lessee would be required to
indemnify Lessor pursuant to this Section 10(a), Lessor will give Lessee written notice of the claim within fifteen (15) days after the Lessor receives written notice of the claim. If Lessee so requests in writing within ten (10) days
after receipt of Lessor’s written notice, or, if earlier, at least five (5) Business Days prior to the last date allowed for responding to such claim, Lessor shall contest, or shall permit Lessee to contest (if and to the extent permitted
by law), the claim, provided that (i) no Default or Event of Default shall have occurred and be continuing and (ii) in the opinion of Lessor, the requested contest does not involve any material danger of any sale, forfeiture or loss of the
Aircraft. Lessee shall pay to Lessor on demand all costs and expenses which Lessor may incur in connection with the contest of a claim pursuant to this paragraph (including reasonable attorneys’ and accountants’ fees and disbursements).
b. Special Tax Provisions. | 311 |
agreement_17.md | b. Special Tax Provisions.
(i) Lessor has calculated the periodic rentals and Stipulated Loss Values based in part on Lessee’s representations and warranties herein and on the following assumption that Lessor will be entitled to deductions for depreciation with
respect to the Aircraft under Section 168 of the Code.
(ii) Lessor represents and warrants to Lessee that a reasonable estimate of
the fair market value of the Aircraft to the Lessor at the end of the Term, without including in such value any increase or decrease for inflation or deflation during the Term, will not be less than 20% of Lessor’s Cost for the Aircraft. Lessor
further represents and warrants that Lessor has made a minimum unconditional “at risk” investment in the Aircraft of at least 20% and will maintain such minimum investment until the end of the Term.
c. Notwithstanding anything to the contrary in this Section 10, no amount shall be payable to Lessor as an indemnity under Section 10, to the
extent such indemnity is the result of one or more of the following:
(i) Any event as a result of which Lessee has paid in full in
accordance with this Lease Stipulated Loss Value, but only to the extent that the loss of deductions or inclusion shall have been taken into account in calculating the Stipulated Loss Value;
16 | 312 |
agreement_17.md | (ii) Any Change in Tax Law;
(iii) The willful misconduct or gross negligence of Lessor;
(iv) Any misrepresentation by Lessor in this Lease;
(v) Any voluntary sale, assignment, transfer, or
other disposition by Lessor of any interest in the Aircraft or any part thereof or any interest in this Lease, unless such sale, assignment, transfer or other disposition occurs while an Event of Default by Lessee under this Lease is continuing;
(vi) The failure by Lessee to provide information requested by Lessor and needed by Lessor to prepare its Federal, state or local income
tax returns;
(vii) The applicability to Lessor of Section 55, 56, 57, 58, 291, 465, 467 or 469 of the Code or any successor
provision or any treasury regulations thereunder;
(viii) The treatment of an Item of Equipment as either public utility property within
the meaning of Section 168(i)(10) of the Code as a result of the identity of Lessor or any activity of Lessor that is unrelated to the transactions contemplated by this Lease;
(ix) Any change in the Lessor’s taxable year;
(x) Any inaccuracy in the conclusions expressed in the appraisal report referred to in Section 23(1) hereof unless the inaccuracy is attributable to the inaccuracy of any information provided by Lessee or Lessor
or to the appraiser; or
(xi) A failure of the transaction to be a true lease for Federal income tax purposes unless such failure is
attributable to any act or failure to act on the part of Lessee or any Affiliate of Lessee, or the inaccuracy of any representation of Lessee in this Agreement or the breach of any warranty or covenant of Lessee in this Agreement. | 313 |
agreement_17.md | **11. Compliance with Laws: Location, Operation & Maintenance: Additions.**
a. Lessee will enter into a management agreement for professional operation and maintenance of the Aircraft with a manager approved by Lessor which
approval shall not be unreasonably withheld, and such manager shall provide for the maintenance
17 | 314 |
agreement_17.md | of the Aircraft and performance of Lessee’s other technical obligations set forth herein. Lessee will use the Aircraft in a careful and proper manner,
will comply with and conform to all applicable governmental laws, rules, regulations and orders thereto, and will cause the Aircraft to be operated in accordance with the manufacturer’s or supplier’s instructions or manuals. Lessee will,
prior to each operation of the Aircraft, conduct a thorough pre-flight inspection of the Aircraft and conduct all pre-flight action required by the Federal Aviation Regulations. Lessee agrees that it will not operate, use or maintain the Aircraft in
violation of any airworthiness certificate, license, law, statute, rule, regulation or registration relating to the Aircraft or aviation nor use the Aircraft (or permit the Aircraft to be used) in violation of any criminal law, rule, statute or
regulation of the United States of America or any other nation state or sub-division thereof. Under no circumstances will the Aircraft be used to carry or transport contraband or unauthorized persons. In the event that any law, rule or regulation or
order applicable to the Aircraft requires alteration, repair or modification of the Aircraft during the Lease Term, Lessee will, at Lessee’s sole expense (utilizing the services of FAA approved maintenance facilities and personnel), conform
thereto, or obtain conformance therewith, maintain the same in proper operating condition under such laws, rules, regulations and orders, and such alterations, repairs and modifications shall immediately, without further act, become the property of
Lessor and part of the Aircraft. | 315 |
agreement_17.md | b. The Aircraft will be permanently based at Opa-Locka Airport (“OPF”), Miami-Dade County,
Florida in the United States. The Aircraft will be operated under 14 C.F.R. Part 91 of the Federal Aviation Regulations, and Lessee will not permit the Aircraft to be operated outside the continental United States except that Lessee may permit the
Aircraft to be operated outside the Continental United States operating under 14 C.F.R. Part 91 provided that, under no circumstances will Lessee permit the Aircraft to be operated in (A) any area excluded from coverage by any insurance
required by the terms of Section 9 hereof (or not specifically and fully covered by such insurance), or any recognized or threatened area of hostilities unless fully covered, without limitation, to Lessor’s satisfaction by hull, political,
expropriation, hijacking and war risk insurance, in each case unless the Aircraft is operated or used under contract with the government of the United States or any agency or instrumentality thereof under which contract the government assumes the
liability in form and substance acceptable to Lessor for substantially the same risk in at least the same amounts as would be covered by such insurance, (B) any jurisdiction as to which a travel advisory or equivalent warning issued by the
Bureau of Consular Affairs, United States Department of State is in effect, or any country that is experiencing wide spread civil unrest or wide spread anti-American activity, or (C) any area in which Lessor’s title to the Aircraft may
reasonably be expected to be jeopardized or not recognized.
c. Lessee, at its sole cost and expense, through the manager of the Aircraft,
shall at all times:
(i) cause the Aircraft to be and remain duly registered under the laws of the United States of America in the name of
Lessor as owner;
18 | 316 |
agreement_17.md | (ii) keep, service, repair, maintain and overhaul the Aircraft utilizing the services of FAA approved
maintenance facilities and FAA licensed personnel (A) in compliance with the FARs and with all FAA Airworthiness Directive and manufacturers’ recommended and mandatory Service Bulletins, (B) in compliance with the applicable
manufacturer’s or supplier’s recommended maintenance, service and overhaul procedures and schedules and in compliance with the Factory Authorized Maintenance Program, pursuant to 14 C.F.R., FAR Part 91.409(f)(3), and as specified by Lessee
to Lessor designating any variation of the approved maintenance program(s), and comply with all applicable maintenance programs, keeping same in full force and effect, in good standing and timely providing all reports and remittances required and
keep same in full force and effect, and good standing making all reports required to the engine program administrator and pay all remittances due (C) with respect to the Engines maintain current and in good standing in accordance with the
engine manufacturers requirements and in compliance with the recommended procedures and schedules of any overhaul, service or maintenance contract relating to the Engines, (D) so as to keep the Aircraft in as good repair and operating condition
(and to furnish all parts, replacements, mechanisms, devices and services required therefore) as when delivered to Lessor, reasonable wear and tear excepted, and (E) so as to keep the Aircraft in such operating condition as may be necessary to
enable the airworthiness certification of the Aircraft to be maintained in good standing at all times under the Aviation Act and so as to comply with the original type certification data sheet; provided, however, if the airworthiness certificate is
withdrawn, then, subject to Section 15 hereof, so long as Lessee is taking or causing to be taken all necessary action to promptly correct the condition which caused such withdrawal, no Event of Default shall arise from such withdrawal. Nothing | 317 |
agreement_17.md | herein shall prevent Lessee from taking the Aircraft out of service for maintenance or modification permitted hereunder or for storage in accordance with applicable FAA requirements; | 318 |
agreement_17.md | (iii) maintain all records, logs and other materials required by the FAA to be maintained in respect of the Aircraft. All repairs, parts, replacements,
mechanisms, devices and services installed or made under this Subsection 11(c) shall be and remain free and clear of any Liens and shall immediately, without further act, become the property of Lessor and part of the Aircraft.
d. Lessee will not make or authorize any improvement, change, addition or alteration to the Aircraft (i) if such improvement, change, addition or
alteration will impair the originally intended function or use of the Aircraft or impair the value, utility or remaining useful life of the Aircraft as it existed immediately prior to such improvement, change, addition or alteration, except that the
value (but not the utility, condition, remaining useful life or airworthiness) of the Aircraft may be reduced by the value of the Parts that Lessee deems obsolete or no longer suitable or appropriate for use in the Airframe if replaced by an
equivalent Part of equal or greater value, utility, condition and airworthiness. If any parts installed in or attached to or otherwise becoming a part of the Aircraft as a result of any such improvement, change, addition or alteration shall not be
readily removable without damage to the Aircraft, such Parts shall become property of Lessor. If no Event of Default shall have occurred and be continuing, any Part which is
19 | 319 |
agreement_17.md | added to the Aircraft not described in the immediately preceding sentence and which is not a replacement or substitution for any property which was a Part of
the Aircraft, shall remain the property of Lessee and may be removed by Lessee at any time prior to the expiration or other termination of the Lease Term. All such parts shall be and remain free and clear of any Liens. Any such Part which is not so
removed prior to the expiration or other termination of the Lease Term shall, without further act, become the property of Lessor.
e.
Lessee agrees that all service, repair, maintenance and overhauls of the Aircraft or any part thereof undertaken or performed during the Term shall be performed solely by FAA approved maintenance facilities and FAA approved service personnel to the
extent required by applicable law or regulation.
f. Lessee agrees that the Aircraft will be operated only by a flight crew qualified under
applicable FAA requirements and having at least the minimum total pilot hours on the aircraft type required by any of the insurance policies described in Section 9 hereof, including annual recurrent full motion based simulator training, and at
Lessee’s sole cost and expense. Lessee shall be solely responsible for the payment of all fuel, lubricants, parts, materials and supplies for the use, operation and maintenance of the Aircraft and Engines. | 320 |
agreement_17.md | g. If Lessor reasonably believes that Lessee may have breached any of its representations, warranties or covenants set forth herein Lessor has the right
(and may have the obligation under applicable law), with or without notice to Lessee, to (1) notify the appropriate governmental authority (or authorities) and to take such action as such governmental authority (or authorities) may direct;
(2) segregate assets or any of Lessee’s funds or assets deposited with or otherwise controlled by Lessor; (3) decline any payment (or deposit such payment with an appropriate United States governmental authority or court) or decline
any prepayment or consent request, and/or declare an Event of Default and immediately accelerate the Lease. Lessee agrees that it shall not assert any claim (and hereby waives any claim that either/both of them may now or hereafter have) against
Lessor or any of its Affiliates or agents for any form of damages as a result of any of the foregoing actions, regardless of whether Lessor’s reasonable belief is ultimately demonstrated to be accurate.
h. Lessee represents, warrants and covenants to and with Lessor that it has taken, and shall continue to take until after the Lease is fully paid, such
measures as are required by law to assure that the funds invested in the Lessee and/or used to make payments on this Lease are derived (a) from transactions that do not violate U.S. law nor, to the extent such funds originate outside the United
States, do not violate the laws of the jurisdiction in which they originated; and (b) from permissible sources under U.S. law and to the extent such funds originate outside the United States, under the laws of the jurisdiction in which they
originated. | 321 |
agreement_17.md | i. Lessee further represents, warrants and covenants to Lessor that to the best of its knowledge after making due inquiry,
neither Lessee, nor any holder of a direct or indirect interest in Lessee, nor any person providing funds to Lessee (a) is under
20 | 322 |
agreement_17.md | investigation by any governmental authority for, or has been charged with, or convicted of, money laundering, drug trafficking, terrorist-related activities,
any crimes which in the United States would be predicate crimes to money laundering, or any violation of any Anti-Money Laundering Laws; (b) has been assessed civil or criminal penalties under any Anti-Money Laundering Laws; and (c) has
had any of its funds seized or forfeited in any action under any Anti-Money Laundering Laws.
**12. Inspection.** Lessor or its
authorized representative may, at such time as the Aircraft is in the possession of the Lessee with five (5) days’ prior written notice to Lessee, at any reasonable time or times during business hours, inspect the aircraft and the books
and records of Lessee.
**13. Identification.** Upon the request of Lessor in writing, Lessee shall, at Lessor’s expense,
attach to the Aircraft or any part of the Aircraft a notice reasonably satisfactory to Lessor disclosing Lessor’s ownership thereof. | 323 |
agreement_17.md | **14. Certain Transactions.** Lessee will not (a) merge or consolidate with any other corporation, (b) liquidate or dissolve, or (c) sell, transfer or dispose of all of substantially all of its assets, unless, in
the case of any transaction described in clause (a), (b) or (c), the entity surviving or resulting from such transaction shall have a tangible net worth equal to or greater than the tangible net worth of Lessee immediately prior to such
transaction and shall have assumed or shall otherwise be bound by the obligations of Lessee hereunder. Lessee will not, without thirty (30) days prior written notice to Lessor, change its name or its chief place of business. Lessee agrees to
notify Lessor within thirty (30) days of any change in the permanent base of the Aircraft, which shall in any case remain within the United States.
**15. Loss or Damage.**
a. All risk of loss, theft, damage or destruction to the Aircraft or any
part thereof while the Aircraft is under operational control of Lessee, however incurred or occasioned, shall be borne by Lessee and, unless such occurrence constitutes an Event of Loss pursuant to paragraph (b) of this Section 15, Lessee
shall promptly cause the effected part or parts of the Aircraft to be replaced or restored to the condition and repair required to be maintained by Section 11 hereof. Upon the occurrence of an Event of Loss with respect to an Engine or a Part
not resulting in an Event of Loss with respect to the Airframe, Lessee will promptly substitute such Engine or Part with an Engine or part having the equivalent value, utility and economic life. | 324 |
agreement_17.md | b. If an Event of Loss while in Lessee’s operational control with respect to the Aircraft shall occur, at Lessee’s election, Lessee shall
(i) promptly give Lessor written notice thereof, and Lessee shall pay to Lessor on the Loss Payment Date an amount equal to the sum of (x) the Stipulated Loss Value of the Aircraft computed as of the Rent Payment Date with respect to the
Aircraft on or immediately preceding the Loss Payment Date; and (y) all rent and other amounts due and owing hereunder for the Aircraft on or
21 | 325 |
agreement_17.md | prior to the Loss Payment Date or (ii) within sixty (60) days after the occurrence of an Event of Loss give written notice to Lessor of its
intention to substitute within one hundred twenty (120) days of an occurrence of an Event of Loss an aircraft of identical make and model having the equivalent value, utility and economic life as the Aircraft. In the event Lessee exercises its
option under clause (i) of this paragraph, upon payment of such amount to Lessor, the Lease of the Aircraft hereunder shall terminate, and Lessor will transfer to Lessee all of Lessor’s right, title and interest in and to the Aircraft on
an *“as is, where is”* basis, without recourse and without representation or warranty, express or implied, other than a representation and warranty that the Aircraft is free and clear of any Lessor’s Liens. | 326 |
agreement_17.md | c. Any payments received at any time by Lessor or Lessee from any insurer with respect to loss or damage to the Aircraft shall be applied as follows:
(i) if such payments are received with respect to an Event of Loss they shall be paid to Lessor, but to the extent received by Lessor, (x) they shall reduce or discharge, as the case may be, Lessee’s obligation to pay the amounts due
to Lessor under Section 15(b) hereof with respect to such Event of Loss, or (y) if the Aircraft is being replaced pursuant to Section 15(b) they shall be paid to Lessee on the consummation of the closing for such replacement; and any
excess above Stipulated Loss Value shall be paid to Lessee; or (ii) if such payments are received with respect to any loss of or damage to the Aircraft other than an Event of Loss, such payment shall, unless a Default or an Event of Default
shall have occurred and be continuing, be applied to the repair of the Aircraft or paid to Lessee forthwith upon completion of such repairs.
If an Event of Default shall have occurred and be continuing, such payments shall be paid to Lessor and applied to any amount due and payable to Lessor hereunder. Both Lessor and Lessee agree to cooperate with each other to ensure that any
payments from insurers are paid in accordance with this subsection.
**16. General Indemnity.** | 327 |
agreement_17.md | **16. General Indemnity.**
a. (i) Claims Indemnified as between Lessor and Lessee. Subject to the exclusions stated in Section 16(b) below, Lessee assumes liability
for, and shall indemnify, protect, save and keep harmless Lessor and its agents, servants, successors and assigns (an “Indemnitee”) from and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, suits,
costs and expenses, including reasonable legal expense, of whatsoever kind and nature, imposed on, incurred by or asserted against any Indemnitee, in any way relating to or arising out of this Lease or the enforcement hereof, or the manufacture,
ordering, purchase, acceptance, rejection, ownership, possession, use, selection, delivery, lease, operation, condition, sale, return or other disposition of the Aircraft or any part thereof (including, without limitation, latent or other defects,
whether or not discoverable by Lessee or any other person, any claim in tort for strict liability and any claim for patent, trademark or copyright infringement); provided, however, that Lessee shall not be required to indemnify any lndemnitee for
loss or liability arising from acts or events which occur after the Aircraft has been returned to Lessor in accordance with this Lease, or for loss or liability resulting solely from the willful misconduct or gross negligence or sole negligence of
such Indemnitee. The provisions of this Section shall survive the expiration or early termination of this Lease.
22 | 328 |
agreement_17.md | (ii) Claims Indemnified as between Lessor, Leesee and Optional Payor. Lessee and Lessor assume
liability for, and shall indemnify, protect, save and keep harmless Optional Payor and his agents, servants, executors, administrators, personal representatives, heirs, successors and assigns (an “Indemnitee”) from and against any and all
liabilities, obligations, losses, damages, penalties, claims, actions, suits, costs and expenses, including reasonable legal expenses, of whatsoever kind and nature, imposed on, incurred by or asserted against any Indemnitee, in any way relating to
or arising out of, or a consequence of, this Lease or the enforcement hereof, including, without limitation, any rental payment or determination to make any such rental payment made by an Indemnitee, or the manufacture, ordering, purchase,
acceptance, rejection, ownership, possession, use, selection, delivery, lease, operation, condition, sale, return or other disposition of the Aircraft or any part thereof (including, without limitation, latent or other defects, whether or not
discoverable by Lessee or any other person, any claim in tort for strict liability and any claim for patent, trademark or copyright infringement). The provisions of this Section shall survive the expiration or early termination of this Lease.
b. Claims Excluded. Notwithstanding Section 16(a) above, Lessee shall not be obligated to indemnify any Indemnitee for:
(i) Any claim that is a tax;
(ii) Any claim to the extent attributable to the gross negligence or willful misconduct of, or the breach of any contractual obligation by, or the falsity or inaccuracy or breach of any representation or warranty by such lndemnitee; | 329 |
agreement_17.md | (iii) Any claims attributable to acts or events occurring after the expiration of the Term unless the Aircraft is not returned in
circumstances where Lessee is required by the terms hereof to return the Aircraft, in which case the foregoing exclusions shall apply only to claims attributable to acts or events occurring after any such return;
(iv) Any claims attributable to the voluntary offer, sale or disposition by or on behalf of such Indemnitee of its interest in the Aircraft or any part
thereof or any security, or except pursuant to this Lease;
(v) Any claims that are ordinary and usual operating or overhead expenses;
(vi) Any claims that constitute costs and expenses of any Indemnitee that Lessee is not required to pay pursuant to any other provision
of this Lease, unless such costs and expenses are indemnified as part of a claim under this indemnity;
23 | 330 |
agreement_17.md | (vii) Any claims for a diminution in value of the Aircraft that results from the existence during the
Term of any Lessor’s Lien;
(viii) Any claims attributable to any loan transaction relating to the Aircraft;
(ix) Any claims attributable to the authorization or giving or withholding of consent to, or to the preparation, execution, delivery or filing of, any
future amendments, supplements, waivers, or consents with respect to any of the documents relating to this Lease other than (a) as have been requested by Lessee, (b) as are required or contemplated by (and, if contemplated by, in
compliance with) the provisions of this Lease in order to give effect thereto or necessary to accomplish the purposes thereof, (c) as are required by applicable law or (d) after the occurrence of an Event of Default;
(x) Any claim attributable to any “prohibited transaction” within the meaning of Section 4975(c)(i) of the Code;
(xi) Any claim attributable to the bankruptcy or insolvency of any Person other than Lessee;
(xii) Any claim that is a fee or expense of any trustee appointed without the consent of Lessee unless such fee or expense is attributable to an Event
of Default; or
(xiii) Any claim relating to insurance maintained by or for the benefit of an Indemnitee that Lessee is not required to
maintain at its own cost and expense pursuant to Section 9 of this Lease.
(xiv) Any claims that did not arise while Lessee had
operational control of the Aircraft.
**17. Events of Default.** The following events shall each constitute an event of default
(herein called “Event of Default”) under this Lease: | 331 |
agreement_17.md | a. Lessee shall fail to make any payment of rent or other amount owing
hereunder within ten (10) days after the date when due; or
b. Lessee shall fail to maintain the insurance required by Section 9
hereof or to perform or observe any of the covenants contained in Sections 11 (a), (b) & (c), 14 or 20 hereof; or
24 | 332 |
agreement_17.md | c. Lessee shall fail to perform or observe any other covenant, condition or agreement to be performed or
observed by it with respect to this Lease and such failure shall continue unremedied for thirty (30) days after the date on which such performance was due; or
d. Lessee shall fail to maintain the engines in accordance with the engine manufacturers maintenance program and provide monthly reports and proof that the engines have been maintained in accordance with the
requirements and recommendations of the engine manufacturer; or
e. Any material representation or warranty made by Lessee herein shall
prove at any time to have been untrue or misleading in any material respect as of the time when made and such incorrectness shall continue to be material and unremedied for a period of thirty (30) days after written notice thereof by Lessor; or
f. The entry of a decree or order for relief by a court having jurisdiction in respect of Lessee, adjudging Lessee a bankrupt or
insolvent, or approving as properly filed a petition seeking a reorganization, arrangement, adjustment, or composition of or in respect of Lessee in an involuntary proceeding or case under the federal bankruptcy laws, as now or hereafter constituted
or any other applicable federal or state bankruptcy, insolvency or other similar law, or appointing a receiver, liquidator, assignee, custodian, trustee, or sequestrator (or other similar official) of Lessee or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of ninety (90) days; or | 333 |
agreement_17.md | g. The institution by Lessee of proceedings to be adjudicated a bankrupt or insolvent, or the consent by Lessee to the institution of bankruptcy or
insolvency proceedings against it, or the commencement by Lessee of a voluntary proceeding or case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar
law, or the consent by Lessee to the filing of any such petition or to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, of sequestrator (or other similar official of Lessee or of any substantial part
of Lessee’s property, or the making by Lessee of any assignment for the benefit of creditors or the admission by Lessee of inability to pay debts generally as they become due or willingness to be adjudicated a bankrupt or the failure of Lessee
generally to pay debts as they become due or the taking of corporate action by Lessee in furtherance of any of the foregoing; or
h. Lessee
shall default under any other agreement providing for the payment of One Hundred Thousand U.S. Dollars ($US 100,000.00) or more of borrowed money and a result thereof the indebtedness thereunder is permitted to be accelerated under such agreement.
Provided that, notwithstanding anything to the contrary contained in this Lease any failure of Lessee to perform or observe any covenant,
condition, or agreement herein shall not constitute an Event of Default if such failure is caused solely by reason of an event referred to in the definition of Event of Loss so long as Lessee continues to comply with the applicable terms of
Section 15.
25 | 334 |
agreement_17.md | **18. Remedies.** Subject to applicable local law requirements, upon the occurrence of any
Event of Default hereunder and so long as the same shall be continuing, Lessor may, at its option, declare this Lease to be in default, and at any time thereafter so long as the Event of Default shall be continuing, Lessor may terminate this Lease
and exercise one or more of the following remedies, as Lessor in its sole discretion shall lawfully elect:
a. Demand that Lessee, and
Lessee shall at its expense upon such demand, return the Aircraft promptly to Lessor, in the condition required by Section 6 of this Lease, at such place in the continental United States of America as Lessor shall specify, or Lessor, at its
option, may enter upon the premises where the Aircraft is located and take immediate possession of the Aircraft and remove the same by summary proceedings or otherwise, all without liability for or by reason of such entry or taking of possession,
whether for the restoration of damage to property caused by such taking or otherwise;
b. Sell the Aircraft at public or private sale, with
or without notice, advertisement or publication, as Lessor may determine, or otherwise dispose of, hold, use, operate, lease to others or keep idle the Aircraft as Lessor in its sole discretion may determine, all free and clear of any rights of
Lessee, except that Lessee shall have (i) the right to be notified in advance of any sale and to participate equally with other bidders and (ii) the right to purchase the Aircraft in advance of any such sale for a cash price equal to the
Fair Market Sale Value of the Aircraft or the Stipulated Loss Value of the Aircraft plus any reasonable costs and expenses (including reasonable attorneys’ fees and disbursements) incurred in connection with the exercise by Lessor of its
remedies hereunder; | 335 |
agreement_17.md | c. By written notice to Lessee specifying a payment date which shall be not earlier than ten (10) days after the
date of such notice, demand that Lessee pay to Lessor, and Lessee shall pay to Lessor, on the payment date specified in such notice, as liquidated damages for loss of a bargain and not as a penalty, all accrued and unpaid rent for the Aircraft due
on all Rent Payment Dates up to and including the payment date specified in such notice plus an amount (together with interest on such amount at the Late Charge Rate, from the payment date specified in such notice to the date of actual payment)
equal to the excess, if any, of the Stipulated Loss Value of the Aircraft as of the payment date specified in such notice over the Fair Market Sale Value of the Aircraft as of such date;
d. Lessor may exercise any other right or remedy which may be available to it under applicable law or proceed by appropriate court action to enforce the
terms hereof or to recover damages for the breach hereof or to rescind this Lease.
26 | 336 |
agreement_17.md | In addition, Lessee shall be liable for any and all unpaid rent and other amounts due hereunder before or
during the exercise of any of the foregoing remedies and for all reasonable legal fees and other costs and expense incurred by reason of the occurrence of any Event of Default or the exercise of Lessor’s remedies with respect thereto, including
all costs and expenses incurred in connection with the placing of the Aircraft in the condition required by Sections 6(a) and 11 hereof.
No remedy referred to in this Section 18 is intended to be exclusive but each shall be cumulative and in addition to any other remedy referred to herein or otherwise available to Lessor at law or in equity; and the exercise or
beginning of exercise by Lessor of any one or more of such remedies shall not preclude the simultaneous or later exercise by Lessor of any or all such other remedies. No express or implied waiver by Lessor of an Event of Default shall in any way be,
or be construed to be, a waiver of any future or subsequent Event of Default. To the extent permitted by applicable law, Lessee hereby waives any rights now or hereafter conferred by statute or otherwise which may require Lessor to sell, or lease or
otherwise use the Aircraft in mitigation of Lessor’s damages or losses or which may otherwise limit or modify any of Lessor’s rights or remedies under this Lease. | 337 |
agreement_17.md | **19. Lessor’s Right To Perform.** If Lessee fails to make any payment required to be made by it hereunder or fails to perform or comply
with any of its other agreements contained herein, Lessor may itself make such payment or perform or comply with such agreement, and the amount of such payment and the amount of reasonable expenses of Lessor incurred in connection with such payment
or the performance of or compliance with such agreement, as the case may be (together with interest thereon at the Late Charge Rate), shall be deemed to be an addition to the rent payable hereunder, which shall be payable by Lessee on demand. | 338 |
agreement_17.md | **20. Assignment or Sublease.** Lessee shall not attempt to sell, lease, charter, rent, assign or dispose of the Aircraft, or
any interest herein or therein, or any part thereof, without Lessor’s prior written consent and, in accordance with the Cape Town Convention, without making all filings and registrations with the International Registry deemed necessary or
advisable by Lessor to protect its interest herein and in the Aircraft. The Aircraft shall at all times be in the sole possession and control of Lessee and Lessee will not, without the prior written consent of Lessor, assign this Lease or any
interest herein or sublease, or otherwise transfer its interest in the Aircraft, provided that Lessee shall remain liable to Lessor under this Lease during any such sublease or transfer. Any sublease shall not relieve Lessee of any of its
obligations hereunder. In the event that Lessee sublets or attempts to sublet or voluntarily or involuntarily parts with possession of the Aircraft, or attempts to move said Aircraft from the airport where it is required to be kept, except while
being in the ordinary permitted use hereunder, or in any manner violates any of the terms hereof, then in either or any of these events this Lease shall at the option of the Lessor immediately terminate and Lessor shall be entitled to immediate
possession of the Aircraft.
27 | 339 |
agreement_17.md | Lessee shall warrant and defend title to the Aircraft in favor of Lessor against all claims and demands
of all other persons claiming any interest therein by, through or under Lessee and shall not create, incur or suffer to exist any Lien or any Irrevocable De-Registration and Export Request Authorization (“IDERA”) with respect to the
Aircraft filed or to be filed with the International Registry, the FAA or elsewhere, other than those in favor of Lessor or Lessor’s lender.
Notwithstanding the foregoing, Lessee shall at any time during the Lease Term be entitled to (i) deliver possession of the Airframe or any Engine or any Part to the manufacturer thereof or to any organization for testing, service,
repair, maintenance, overhaul work or other similar purposes or for alterations or modifications or additions required or permitted by the terms of this Lease and (ii) transfer possession of the airframe or any engine to the United States of
America as required by applicable law.
Lessor may, without the prior consent of Lessee, assign its interest in and to the Aircraft and
this Lease to any third party.
**21. Further Assurances; Financial Information.** | 340 |
agreement_17.md | **21. Further Assurances; Financial Information.**
a. Lessee will, at Lessee’s expense, promptly and duly execute and deliver to Lessor such further documents and assurances and take such further
actions as Lessor may from time to time request for the confirmation of this Lease and in order to more effectively establish and protect the rights, interest and remedies created or intended to be created in favor of Lessor hereunder, including,
without limitation, the execution and filing of Uniform Commercial Code financing statements in the jurisdictions in which Lessee has its corporate headquarters and/or its principal place of business and in which the Aircraft is principally based
from time to time. To the extent permitted by applicable law, Lessee hereby authorizes Lessor to file any such financing statements without the signature of Lessee. Lessee will also provide such information as Lessor may reasonably request from
Lessee to enable Lessor to fulfill all of its tax filing obligations.
b. Lessee will furnish to Lessor not later than one hundred twenty
(120) days after the end of each fiscal year of Lessee, consolidated balance sheet of Lessee as of the end of such fiscal year, and consolidated statements of income and changes in financial position of Lessee for such fiscal year, all in
reasonable detail, prepared in accordance with generally accepted accounting principles and reviewed by a certified public accountant.
**22. Notices.** Notices sent by acceptable courier services shall be deemed received when delivered and evidenced by proper receipt. All other notices, demands and other communications hereunder shall be in writing, and shall be
deemed to have been given or made when sent by telefacsimile or ten (10) days after deposited in the United States mail, first class postage prepaid, addressed as follows or to such other address as any of the following persons may from time to
time designate in writing to the other persons listed below: | 341 |
agreement_17.md | | | | |
| --- | --- | --- |
| | | |
| **Lessor:** | | Lennar Aircraft I, LLC |
| | | c/o Lennar Corporation |
| | | 700 NW 107th Avenue |
| | | Suite 400 |
| | | Miami, FL 33172 |
| | |
| **Lessee:** | | US Home Corporation |
| | | c/o Lennar Corporation |
| | | 700 NW 107th Avenue |
| | | Suite 400 |
| | | Miami, FL 33172 |
28 | 342 |
agreement_17.md | **23. Conditions Precedent.** Lessor shall not be obligated to accept and execute this Lease
and thereby lease the Aircraft to Lessee hereunder unless:
a. Resolution of Lessee. Lessor shall have received a copy of resolutions
of the Board of Directors of Lessee certified by the Secretary or Assistant Secretary of Lessee as of the date of execution hereof by Lessee or other evidence of corporate authority acceptable to Lessor, authorizing the execution, delivery and
performance by Lessee of this Lease.
b. Insurance. Lessor shall have received evidence satisfactory to it as to the due compliance
by Lessee with the provisions regarding insurance contained in Section 9 hereof.
c. Lessor’s Title. Lessor shall have
received good and marketable title to the Aircraft, free and clear of any Liens and all filings, recordings and other actions that are necessary or desirable in order to establish, protect and preserve Lessor’s title to and ownership of the
Aircraft shall have been duly effected, including, without limitation, the receipt by Lessor of a duly completed, executed and delivered FAA Bill of Sale. In addition, Lessor shall have received evidence satisfactory to it that, immediately prior to
the transfer of the title to the Aircraft to Lessor by the seller thereof, such seller has good and marketable title to the Aircraft. The International Interest created hereby in the Aircraft pursuant to the provisions of the Cape Town Convention
shall be registered with the International Registry, and Lessee hereby consents to such registration and authorizes Lessor to effect all such registrations with the International Registry. No International Interest created in favor of Lessor shall
be discharged without the prior written consent of Lessor.
d. Airworthiness Certificate. Lessor shall have received a copy of the
FAA airworthiness certificate for the Aircraft.
29 | 343 |
agreement_17.md | e. FAA Registration; FAA Filings; International Interest. Lessor shall have received evidence
satisfactory to it and its special FAA counsel that the Aircraft is currently properly registered (including, without limitation, a copy of the current Certificate of Aircraft Registration), that a proper Application for Registration for the
Aircraft in Lessor’s name has been submitted to the FAA and that the FAA Bill of Sale covering the Aircraft from the seller thereof to Lessor, and the Lease have been properly filed for record. The International Interest created hereby in the
Aircraft pursuant to the provisions of the Cape Town Convention shall be registered with the International Registry.
f. Representations
True. No Default or Event of Default. All representations and warranties of Lessee contained herein or in any certificate furnished Lessor in connection herewith shall be true and correct on and as of the date of execution hereof by Lessee with
the same force and effect as if made on and as of such date; no Event of Default or Default shall be in existence on such date or shall occur as a result of the lease by Lessee of the Aircraft.
g. No Material Adverse Change. In the reasonable judgment of Lessor, there shall have been no material adverse change in the financial condition
or business of Lessee from December 31 of the year preceding the year of execution of this Lease.
h. Other Documents and
Information. Lessor shall have received from Lessee, in form and substance satisfactory to Lessor, such other documents and information, as Lessor shall reasonably request.
i. Legal Matters; Proceedings. All legal matters and all proceedings in connection with the transactions contemplated by this Lease, and all
documents incidental thereto, shall be satisfactory to Lessor’s counsel.
j. Attorney’s Fees. Lessee shall be responsible
for all legal costs incurred in completion of this Lease. | 344 |
agreement_17.md | j. Attorney’s Fees. Lessee shall be responsible
for all legal costs incurred in completion of this Lease.
k. Records. Lessor shall keep records showing the usage of the Aircraft,
total hours flown per month, all management, maintenance, fixed and variable expenses, taxes, and usage records for each party utilizing the Aircraft for each calendar year for a period of three (3) years following each year, and such records
shall be made available for inspection and photocopying by Lessee and/or its agents during ordinary business hours in Opa-Locka, Florida.
**24. Miscellaneous.**
a. Any provision of this Lease which is prohibited or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted by applicable law, Lessee hereby waives any provision of law which renders any provision hereof prohibited or unenforceable in any respect.
30 | 345 |
agreement_17.md | b. No terms or provisions of this Lease may be 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. No delay or failure on the part of Lessor to exercise any power or right hereunder shall operate as a waiver
thereof, nor as an acquiescence in any default, nor shall any single or partial exercise of any power or right preclude any other or further exercise thereof, or the exercise of any other power or right. After the occurrence of any Default or Event
of Default, regardless of Lessor’s knowledge or lack of knowledge thereof at the time of acceptance of any such payment, and shall not constitute a reinstatement of this Lease if this Lease shall have been declared in default by Lessor pursuant
to Section 18 hereof or otherwise, unless Lessor shall have agreed in writing to reinstate the Lease and to waive the Default or Event of Default.
c. This Lease contains the full, final and exclusive statement of the agreement between Lessor and Lessee relating to the lease of the Aircraft and supercedes all prior and contemporaneous agreements and
understandings, inducements or conditions pertaining thereto, expressed or implied, oral or written, except as contained herein.
d. This
Lease shall constitute an agreement of Lease only, and nothing herein shall be construed as conveying to Lessee any right, title or interest in the Aircraft except as Lessee only.
e. This Lease and the covenants and agreements contained herein shall be binding upon, and inure to the benefit of, Lessor and its successors and assigns
and Lessee and, to the extent permitted by Section 20 hereof, its successors and assigns. | 346 |
agreement_17.md | f. The headings of the Sections are for
convenience of reference only, are not a part of this Lease and shall not be deemed to affect the meaning or construction of any of the provisions hereof.
g. This Lease may be executed by the parties hereto on any number of separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one
and the same instrument.
h. This Lease shall be governed by and construed in accordance with the laws of the State of Florida (excluding
its choice of law rules, it being the intent of the parties that the laws of Florida or, where applicable, United States Federal Aviation Law apply to this Lease). Any legal action brought to enforce or construe this Agreement shall be brought only
in state courts located in Miami-Dade County, Florida and Lessor and Lessee hereby agree to the exclusive jurisdiction of such courts and agree that they will not
31 | 347 |
agreement_17.md | invoke the doctrine of forum non conveniens or other similar defenses (except that Lessor may seek the replevin in any court in any jurisdiction and Lessee
may not interpose a counterclaim therein, but rather, may only assert claims against Lessor in a state court of competent jurisdiction in Miami-Dade County, Florida).
i. LESSOR AND LESSEE IN ANY LITIGATION RELATING TO OR IN CONNECTION WITH THIS LEASE IN WHICH THEY SHALL BE ADVERSE PARTIES WAIVE TRIAL BY JURY.
j. Regardless of place of execution, this Agreement is deemed executed at Lessor’s place of business in Miami-Dade County, Florida.
**25. Truth In Leasing.**
a. THIS
CERTIFIES THAT THE AIRCRAFT HAS BEEN MAINTAINED AND INSPECTED UNDER PART 91 OF THE FEDERAL AVIATION REGULATIONS FOR THE TWELVE MONTHS PRECEDING EXECUTION HEREOF.
b. LESSEE CERTIFIES THAT THE AIRCRAFT WILL BE MAINTAINED AND INSPECTED UNDER PART 91 OF THE FEDERAL AVIATION REGULATIONS FOR OPERATIONS TO BE CONDUCTED UNDER THIS LEASE.
c. LESSEE CERTIFIES THAT DURING THE TERM OF THIS LEASE, LESSEE, AND NOT LESSOR, IS CONSIDERED RESPONSIBLE FOR OPERATIONAL CONTROL OF THE AIRCRAFT UNDER
THIS LEASE. LESSEE FURTHER CERTIFIES THAT LESSEE UNDERSTANDS ITS RESPONSIBILITIES FOR COMPLIANCE WITH APPLICABLE FEDERAL AVIATION REGULATIONS.
d. LESSEE UNDERSTANDS THAT AN EXPLANATION OF FACTORS BEARING ON OPERATIONAL CONTROL AND PERTINENT FEDERAL AVIATION REGULATIONS CAN BE OBTAINED FROM THE NEAREST FAA FLIGHT STANDARDS DISTRICT OFFICE. | 348 |
agreement_17.md | e. LESSEE AGREES TO KEEP A COPY OF THIS LEASE IN THE AIRCRAFT AT ALL TIMES DURING THE LEASE TERM.
32 | 349 |
agreement_17.md | **IN WITNESS WHEREOF**, Lessor and Lessee have each caused this Aircraft Lease Agreement to be duly
executed as of the day and year first above written.
| | | | | |
| --- | --- | --- | --- | --- |
| | | | | |
| **Lessor:** | | **Lennar Aircraft I, LLC** |
| | |
| | | By: Lennar Corporation, its sole member |
| | | |
| | | By: | | /s/ Bruce Gross |
| | | Name: | | Bruce Gross |
| | | Title: | | Vice President |
| | |
| **Lessee:** | | **US Home Corporation** |
| | | |
| | | By: | | /s/ Bruce Gross |
| | | Name: | | Bruce Gross |
| | | Title: | | Vice President |
| | |
| | | **Agreed to and Accepted as Optional Payor for Payment Only under Paragraph 4** |
| | | |
| | | By: | | /s/ Stuart Miller |
| | | | | Stuart Miller |
| | | | | Chief Executive Officer |
| | | | | Lennar Corporation |
33 | 350 |
agreement_18.md | EX-10.44
3
d232355dex1044.htm
AMENDED AND RESTATED MASTER AIRCRAFT DRY LEASE AGREEMENT
Amended and Restated Master Aircraft Dry Lease Agreement
**Exhibit 10.44**
**AMENDED AND RESTATED MASTER AIRCRAFT DRY LEASE AGREEMENT**
THIS
AMENDED AND RESTATED MASTER AIRCRAFT DRY LEASE AGREEMENT (this “**Agreement**”) is made and entered into this the 27th day of February, 2012 between 113CS LLC, a Delaware limited liability company, (“**Lessor**”) and
Blackstone Management Partners IV, L.L.C., a Delaware limited partnership (“**Lessee**”) (collectively the “**Parties**”).
**W I T N E S S E T H:**
**WHEREAS**, Lessor owns a 2007 Gulfstream
Aerospace model GV-SP (G550), FAA Registration N113CS, as described more fully in Section 1.1 below (the “**Aircraft**”); and
**WHEREAS**, Lessor desires to dry lease the Aircraft to Lessee from time to time on a non-exclusive periodic basis; and Lessee desires to dry lease the Aircraft from Lessor from time to time.
**WHEREAS**, Lessor and Lessee entered into Master Aircraft Dry Lease Agreement for the lease, from time to time, of the
Aircraft on August 30, 2011, and now wish to amend and restate that agreement in its entirety with this Agreement.
**NOW, THEREFORE**, in consideration of the promises and the mutual covenants and undertakings herein contained, the Parties hereto do
hereby agree as follows:
**ARTICLE 1: LEASE AND TERM** | 351 |
agreement_18.md | **ARTICLE 1: LEASE AND TERM**
1.1. Lease. Lessor hereby agrees to dry lease to Lessee, from time to time, and Lessee hereby agrees to dry lease from Lessor,
from time to time, one (1) 2007 Gulfstream Aerospace model GV-SP (G550) aircraft with U.S. registration mark N113CS (formerly N557GA), and manufacturer’s serial number 5154 (the “**Airframe**”), equipped with two
(2) Rolls Royce model BR700-710C4-11 engines bearing manufacturer’s serial numbers 15408 and 15409 (the “**Engines**”) and one (1) Honeywell model RE220 auxiliary power unit bearing manufacturer’s serial number P-480
(the “**APU**”), together with all components, accessions, systems, appliances, parts, instruments, accessories, furnishings, and any manufacturer’s or third-party warranties, any manufacturer service programs in connection with
the Aircraft and other equipment installed thereon or attached thereto on the date hereof, all specified avionics, equipment, spare parts and loose equipment and all logs, weight and balance documents, wiring diagrams, manuals and other records and
documentation pertaining to the operation and maintenance of such aircraft in Seller’s possession or under its control (the foregoing, together with the Airframe, Engines and APU, collectively, the “**Aircraft**”) to Lessee
hereunder. Changes to the U.S. registration mark of the Aircraft shall have no effect on this Agreement.
1.2. Term and
Rental Periods. The Term of this Agreement (“**Term**”) shall commence upon delivery of the Aircraft from Bombardier Inc., for a period of one (1) year. Thereafter, this | 352 |
agreement_18.md | Agreement shall renew on a month-to-month basis. Either Party may terminate this Agreement at any time upon five (5) days written notice to the other Party. Lessee may dry lease the Aircraft
pursuant to this Agreement for specific periods of time during the Term (“**Rental Periods**”). No Rental Period shall be for more than Thirty (30) days.
**ARTICLE 2: RENTAL AND EXPENSES**
2.1. Rental Payment. Lessee agrees
to pay to Lessor an hourly rental fee at a rental rate of Six Thousand Dollars ($6,500.00) per hour of operation during each Rental Period. Such hourly rental fees include delays, detours, cancellations caused by weather, routing, maintenance or
other similar occurrences during each Rental Period, except that Lessor, at its sole discretion, may reduce the rental fees in the event of such occurrences. In addition, Lessee shall pay for a minimum of two hours of Rental Payment on any day
during the Rental Period.
2.2. Positioning, Repositioning Charges. Lessee shall be responsible for accepting the
Aircraft from Lessor, and returning the Aircraft to Lessor at Waterbury-Oxford Airport (“**Home Base**”), or other airport agreed between the Parties. If Lessee commences or ends its Rental Period at a point other than Home Base, Lessee
shall, in Lessor’s sole discretion, be assessed an additional charge equivalent to Lessor’s costs in positioning the Aircraft from Home Base to the delivery point, or repositioning the Aircraft back to Home Base from the point of return. | 353 |
agreement_18.md | 2.3. Lessee Reimbursement for Incidental Charges. Lessee shall be responsible for all incidental charges for any
flight during the Rental Period, including but not limited to, hangaring and tie down charges away from the aircraft’s base of operation, landing fees, federal excise taxes, airport taxes or similar charges, customs, immigration or similar
charges related to international flight; and (3) any additional insurance premiums required for specific flights during the Rental Period. In the event any such charges are made to Lessor by service providers, Lessee shall promptly reimburse
Lessor for such costs.
2.4. Lessor Reimbursement for Certain Charges. Lessor has incorporated the cost for maintenance
and repairs, and fuel costs into the Rental Payment. In the event any charges for fuel or maintenance are paid directly by Lessee, Lessor shall promptly reimburse Lessee for such cost, or deduct as an offset against Rental Payments such costs.
2.5. Invoicing and Payment. Lessor will send Lessee invoices for such payments as are due under this Article for each
Rental Period, using the form attached as Appendix A or other form at Lessor’s discretion. Lessee shall make payment by check or money order payable to “113CS, LLC” payable upon receipt, or shall wire transfer funds to the address
specified on the invoice.
2.6. Calculation of Hours of Operation. For purposes of rental payments, hours of operation
for each Rental Period shall be calculated (a) from the time the Aircraft takes off to the time it lands, and (b) hours of operation shall include flights to return the Aircraft to Lessor at the end of Rental Period. | 354 |
agreement_18.md | 2.7. Taxes. All payments, including specifically Rental Payments made by Lessee hereunder, shall be made free and clear of, and
without deduction for, any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, restrictions or conditions now or hereafter
BLACKSTONE DRY LEASE - PAGE 2 OF 11 | 355 |
agreement_18.md | imposed by any governmental or taxing authority. Taxes which the Lessee may incur while operating the Aircraft include, but are not limited to: fuel excise taxes, airport taxes, sales and use
taxes, over flight fees or taxes, and customs duties, or other foreign taxes relating to international travel.
2.8.
Procedure to Request Rental of Aircraft. Lessee shall make requests for rental of the Aircraft to Lessor either orally or in writing. Requests should be made as far in advance as possible before the intended commencement of the Rental Period.
2.9. Availability. Lessor is making the Aircraft available to Lessee for dry lease on an “as available”
basis only, and makes no guarantee or warranty with regard to Aircraft availability. Lessor will, in good faith, attempt to make the Aircraft available when it is not otherwise being used by Lessor, another lessee, or is unavailable for maintenance
or other reasons.
2.10. Non-availability or Delay Due to Unanticipated Causes. Lessor shall promptly notify Lessee if
the Aircraft cannot be delivered for a Rental Period due to an unanticipated delay, such as weather or mechanical related delays. Lessor shall not be responsible for any loss, injury, damage, delay, or cancellation, or any consequential or
incidental damages or costs incurred by Lessee caused by such delay or cancellation.
**ARTICLE 3: OPERATION OF AIRCRAFT BY
LESSEE**
3.1. Operational Control. During each Rental Period, Lessee is and shall be the sole operator of the
Aircraft and has sole operational control of the Aircraft. During each Rental Period, Lessee is responsible for operating the Aircraft in accordance and compliance with all laws, ordinances and regulations relating to the possession, use, operation,
or maintenance of the Aircraft, including, but not limited to, the FARs. | 356 |
agreement_18.md | 3.2. Selection of Flight Crew. Lessee shall
select and hire its own flight crew provided that the pilots shall be professionally trained and qualified, shall be familiar with and licensed to operate the Aircraft, and shall have current medical certificates, and recurrent training.
3.3. Care and Use. Lessee shall use and operate the Aircraft in a careful and proper manner. Lessee shall operate the Aircraft in
accordance with the flight manual and all manufacturer’s suggested operating procedures. Lessee shall not operate, use, or maintain the Aircraft in violation of any airworthiness certificate, license, or registration relating to the Aircraft,
or contrary to any law or regulation.
3.4. Limits of Operations. Lessee expressly warrants and agrees that it shall
not operate the Aircraft outside the geographic limits set forth in the Insurance Policies, or otherwise operate the Aircraft in a way that would violate or compromise the Insurance Policies. Lessee shall use the Aircraft only for and on account of
its business, and will not use the Aircraft for the purpose of providing transportation of passengers or cargo in air commerce for compensation or hire (except in accordance with the provisions of FAR 91.501), or for any illegal purpose.
3.5. Documentation. Lessee shall complete required flight logs, maintenance logs, or other recording entries required by the FARs
during any Rental Period.
BLACKSTONE DRY LEASE - PAGE 3 OF 11 | 357 |
agreement_18.md | 3.6. Maintenance and Repair. Lessor, at its own cost and expense, will promptly
repair or replace all parts, appliances, components, instruments, accessories, and furnishings that are installed in or attached to the Aircraft (herein called “**Parts**”) that may from time to time become worn out, lost, stolen,
destroyed, seized, confiscated, damaged beyond repair, or permanently rendered unfit for use for any reason whatsoever during a Rental Period. Further, Lessor shall reimburse Lessee for any mechanics liens or other costs incurred by Lessee
associated with non-routine repairs or maintenance made during a Rental Period, provided that: (1) such repairs shall be made by an FAA approved repair facility; and (2) Lessor shall approve in advance such repairs or maintenance. Lessee
covenants to repair any damage beyond ordinary wear and tear caused by Lessee’s use of the Aircraft.
3.7. Right to
Inspect. Lessor and its authorized representatives shall, at all reasonable times, have the right to enter the premises where the Aircraft may be located for the purpose of inspecting and examining the Aircraft, its condition, use and operation,
and the books and records of Lessee relating thereto to ensure Lessee’s compliance with its obligations under this Lease. Notwithstanding the foregoing rights, Lessor has no duty to inspect and shall not incur any liability or obligation by
reason of not making any such inspection.
**ARTICLE 4: INSURANCE AND LIABILITY** | 358 |
agreement_18.md | **ARTICLE 4: INSURANCE AND LIABILITY**
4.1. Primary Liability and Property Damage Insurance. Lessor shall maintain in effect, at its own expense, third party Aircraft
liability insurance, passenger legal liability insurance, and property damage liability insurance during the Term in such amounts as are customary for similarly situated aircraft. Each liability policy shall be primary without right of contribution
from any other insurance that is carried by Lessee, and expressly provide that all the provisions thereof, except the limits of liability, shall operate in the same manner as if there were a separate policy covering each insured.
4.2. Insurance Against Physical Damage. Lessor shall maintain in effect, at its own expense, all-risk ground and flight Aircraft
hull insurance covering the Aircraft. Any such insurance shall be during the Term for an amount customary for a similar aircraft.
4.3. Lessee As Named Insured. All Insurance Policies carried by Lessor in accordance with this Article shall name Lessee as a named insured.
4.4. Deductible. Any Insurance Policy carried by Lessor in accordance with this Article may be subject to a deductible amount
which is customary under policies insuring similar aircraft similarly situated. Lessor warrants and agrees that in the event of an insurable claim, Lessor will bear the costs up the deductible amount.
4.5. Additional Insurance for Lessee. Lessee may, at its discretion, obtain additional insurance covering its operation of the
Aircraft.
4.6. Certificate of Insurance. Upon request, Lessor shall deliver to Lessee a certificate of insurance
evidencing the insurance required to be maintained by Lessor under this Article.
BLACKSTONE DRY LEASE - PAGE 4 OF 11 | 359 |
agreement_18.md | 4.7. Mutual Waiver of Liability Claims. Except as specifically set forth in this
Agreement, Lessor and Lessee (the “**Parties**”) each hereby agree that each shall hold harmless the other Party, and the other Party’s respective officers, directors, agents, employees, servants, attorneys, insurers, coinsurers,
reinsurers, indemnitors, parents, subsidiaries, affiliates, predecessors, successors, and assigns from and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, suits, costs and expenses, including reasonable
legal fees and expenses, of whatsoever kind and nature including, without limitation, personal injury or death (“**Liabilities**”), that could be asserted by that Party against the other Party directly or indirectly (including but not
limited to claims raised against that Party by any third-party, employee, agent, or other person or entity not a party to the Agreement) arising out of the lease, sublease, possession, rental, use, condition, operation, transportation, return,
storage or disposition of the Aircraft or any part thereof (including, without limitation, Liabilities in any way relating to or arising out of latent or other defects, whether or not discoverable by a Party or any other person, injury to persons or
property, or strict liability in tort), provided, however, that neither Party shall be required to hold harmless the other Party for Liabilities resulting from the gross negligence or willful misconduct of the other Party.
**ARTICLE 5: WARRANTIES AND DISCLAIMERS** | 360 |
agreement_18.md | **ARTICLE 5: WARRANTIES AND DISCLAIMERS**
5.1. Lessor’s Warranty. Lessor warrants that (1) the Aircraft shall be delivered to Lessee in airworthy condition; (2) the Aircraft is properly registered in accordance with U.S.
law; and (3) Lessor is a citizen of the United States of America as set forth in Section 40102(16) of the Transportation Laws and the regulations thereunder.
5.2. Lessor’s Disclaimer of Warranties. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, LESSOR NEITHER MAKES NOR SHALL BE DEEMED TO HAVE MADE AND HEREBY EXPRESSLY DISCLAIMS, AND LESSEE EXPRESSLY
WAIVES ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE VALUE, CONDITION, WORKMANSHIP, DESIGN, OPERATION, MERCHANTABILITY OR FITNESS FOR USE FOR A PARTICULAR PURPOSE OF THE AIRCRAFT, AS TO THE ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER
OR NOT DISCOVERABLE, AS TO THE ABSENCE OF ANY INFRINGEMENT OF ANY PATENT, TRADEMARK OR COPYRIGHT, AS TO THE ABSENCE OF OBLIGATIONS BASED ON STRICT LIABILITY IN TORT OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT
TO THE AIRCRAFT OR ANY PART THEREOF.
5.3. Lessee’s Representation Regarding Selection. Lessee represents and
warrants that: (1) it has selected the Aircraft based on its own judgment and disclaims any reliance upon statements or representations not part of this Agreement; and (2) that the Aircraft is of a size, design and capacity selected by
Lessee and is suitable for Lessee’s intended use. | 361 |
agreement_18.md | 5.4. Lessee Warranty Regarding Operation. Lessee represents and
warrants that it shall only operate the Aircraft under the terms, conditions, and restrictions, as set forth in this Agreement.
BLACKSTONE DRY LEASE - PAGE 5 OF 11 | 362 |
agreement_18.md | **ARTICLE 6: MISCELLANEOUS**
6.1. Title. Title to the Aircraft shall remain vested in Lessor during the Lease Term and the Aircraft shall be registered at the
FAA in the name of Lessor. Lessee shall have no right, title or interest in or to the Aircraft except as expressly provided herein and shall take no action that would impair the continued registration of the Aircraft at the FAA in the name of
Lessor. Lessee shall not file or record this Agreement with the FAA. Lessee shall do or cause to be done any and all acts and things which may be required to perfect and preserve the interest and title of Lessor to the Aircraft within any
jurisdiction in which Lessee may operate the Aircraft, and Lessee shall also do or cause to be done any and all acts and things which may be required under the terms of any other agreement, treaty, convention, pact or by any practice, customs or
understanding involving any country or state in which Lessee may operate, as may be necessary or helpful, or as Lessor may reasonably request, to perfect and preserve the rights of Lessor within the jurisdiction of any such country or state. | 363 |
agreement_18.md | 6.2. Liens. Except as provided herein, Lessee will not directly or indirectly create, incur, assume or suffer to exist
any liens on or with respect to (1) the Aircraft or any part thereof; (2) Lessor’s title thereto; or (3) any interest of Lessor therein. Lessee will promptly, at its own expense, take such action as may be necessary to discharge
any such lien. Lessee may incur the following liens: (i) the respective rights of Lessor and Lessee as herein provided; (ii) liens created by Lessor; (iii) liens for taxes either not yet due or being contested by Lessee in good faith;
and (iv) inchoate materialmen’s, mechanics’, workmen’s, repairmen’s, employees’ or other like liens arising in the ordinary course of business of Lessee, or Parties acting on behalf of Lessee insofar as such actions
relate to the Aircraft and are not inconsistent with this Agreement, not delinquent, and for the payment of which adequate reserves have been provided.
6.3. Defaults. | 364 |
agreement_18.md | 6.3. Defaults.
(a) Each of the following events shall constitute an
“Event of Default” hereunder (whatever the reason for such event of default and whether it shall be voluntary or involuntary, or come about or be effected by operation of law, or be pursuant to or in compliance with any judgment, decree or
order of any court or any order, rule or regulation of any administrative or governmental body): (1) if Lessee shall fail to pay when due any sum under this Agreement and such failure shall continue for a period of three business days after
oral, facsimile, or written notice has been given by Lessor to Lessee; (2) if Lessee shall fail to perform any covenant or agreement contained herein, and such failure shall continue for a period of fifteen (15) days after notice thereof
shall have been given in writing; (3) if any representation or warranty made by Lessee in this Agreement or any agreement, document or certificate delivered by the Lessee in connection herewith is or shall become incorrect in any material
respect; (4) if Lessee shall operate the Aircraft in violation of any applicable law, regulation, rule or order of any governmental authority having jurisdiction thereof or shall operate the Aircraft when the insurance required hereunder shall
not be in effect; (5) if any proceedings shall be commenced under any bankruptcy, insolvency, reorganization, readjustment of debt, receivership or liquidation law or statute of any jurisdiction; or (6) if any such proceedings shall be
instituted against either Party and shall not be withdrawn or terminated within thirty (30) days after their commencement.
BLACKSTONE DRY LEASE - PAGE 6 OF 11 | 365 |
agreement_18.md | (b) Upon the occurrence of any Event of Default Lessor may, at its option, exercise any or
all remedies available at law or in equity, including, without limitation, any or all of the following remedies, as Lessor in its sole discretion shall elect: (1) by notice in writing to terminate this Agreement immediately, whereupon all
rights of the Lessee to the use or possession of the Aircraft or any part thereof shall absolutely cease and terminate but Lessee shall remain liable as hereinafter provided; and thereupon Lessee, if so requested by Lessor, shall at its expense
promptly return the Aircraft and Aircraft Documentation as required by this Agreement or Lessor, at its option, may enter upon the premises where the Aircraft or Aircraft Documentation are located and take immediate possession of and remove the same
by summary proceedings or otherwise. Lessee specifically authorizes Lessor’s entry upon any premises where the Aircraft or Aircraft Documentation may be located for the purpose of, and waives any cause of action it may have arising from, a
peaceful retaking of the Aircraft or Aircraft Documentation; or (2) perform or cause to be performed any obligation, covenant or agreement of Lessee hereunder. Lessee agrees to pay all costs and expenses incurred by Lessor for such performance
and acknowledges that such performance by Lessor shall not be deemed to cure said Event of Default. | 366 |
agreement_18.md | (c) Lessee shall be
liable for all costs, charges and expenses, including reasonable legal fees and disbursements, incurred by Lessor by reason of the occurrence of any Event of Default or the exercise of Lessor’s remedies with respect thereto. No remedy referred
to herein is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to above or otherwise available to Lessor at law or in equity. Lessor shall not be deemed to have waived any default, Event of Default
or right hereunder unless the same is acknowledged in writing by duly authorized representative of Lessor. No waiver by Lessor of any default or Event of Default hereunder shall in any way be, or be construed to be, a waiver of any future or
subsequent default or Event of Default. The failure or delay of Lessor in exercising any rights granted it hereunder upon any occurrence of any such right upon the continuation or recurrence of any such contingencies or similar contingencies, and
any single or partial exercise of any particular right by Lessor shall not exhaust the same or constitute a waiver of any other right provided herein.
6.4 Successors and Assigns. This Agreement shall be binding upon Lessor, Lessee, and their respective successors and assigns, except that Lessee may not assign or transfer any of its rights
hereunder except with the prior written consent of Lessor. Subject to the foregoing, this Lease shall inure to the benefit of Lessor and Lessee and their respective successors and assigns. | 367 |
agreement_18.md | 6.5. Notices. All notices and other communications under this Agreement shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt or refusal to accept receipt) by delivery in person, by facsimile (with a simultaneous confirmation copy sent by first class mail properly addressed and postage prepaid), or by a reputable overnight
courier service, addressed as follows:
| | | | | |
| --- | --- | --- | --- | --- |
| | | | | |
| If to Lessor: | | 113CS LLC |
| | | 288 Christian Street, Suite 10 |
| | | Oxford, Connecticut, 06478 |
| | | Attn: Alex Tsungu |
| | | Telephone: (203) 267-1045 |
| | | Facsimile: (203) 267-1406 |
BLACKSTONE DRY LEASE - PAGE 7 OF 11 | 368 |
agreement_18.md | | | | | | |
| --- | --- | --- | --- | --- |
| | | | | |
| If to Lessee: | | Blackstone Management Partners IV, L.L.C. |
| | | 345 Park Avenue |
| | | New York, NY 10154 |
| | | Attn: John A. Magliano |
| | | Telephone: (212) 583-5794 |
| | | Facsimile: (212) 583-5692 |
or at such other address as either Party may designate in writing. Any notice hereunder shall be effective upon delivery.
6.6. Entire Agreement. This Agreement constitutes the final, complete, and exclusive statement of the terms of the
agreement between the Parties pertaining to the subject matter of this agreement and supersede all prior and contemporaneous understandings of the Parties.
6.7. Severability. If any provision of this Agreement is found to be prohibited or unenforceable in any jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof. Any such prohibition or unenforceability in one jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the
extent permitted by applicable law, each Party hereto hereby waives any provision of law that renders any provision hereof prohibited or unenforceable in any respect.
6.8. Amendments and Modifications. The terms of this Agreement shall not be waived, varied, contradicted, explained, amended or changed in any other manner except by an instrument in writing,
executed by both Parties. | 369 |
agreement_18.md | 6.9. Choice of Law. This Agreement shall in all respects be governed by, and construed in
accordance with, the laws of the State of New York (disregarding any Conflict of Laws rule which might result in the application of the laws of any other jurisdiction), including all matters of construction, validity, and performance.
6.10. Force Majeure. No Party shall be liable for any failure to perform its obligations in connection with any action described
in this Agreement, if such failure results from any act of God, riot, war, civil unrest, flood, earthquake, or other cause beyond such Party’s reasonable control (including any mechanical, electronic, or communications failure, but excluding
failure caused by a Party’s financial condition or negligence).
6.11. Execution. This Lease may be executed in
any number of counterparts, each of which when so executed shall be deemed to be an original, and such counterparts together shall constitute one and the same instrument.
**ARTICLE 7: TRUTH IN LEASING**
7.1. Representation Regarding
Maintenance. THE AIRCRAFT HAS BEEN MAINTAINED AND INSPECTED SINCE NEW UNDER FEDERAL AVIATION
BLACKSTONE DRY LEASE - PAGE 8 OF 11 | 370 |
agreement_18.md | REGULATION PART 91 (AND WILL BE MAINTAINED UNDER PART 135 UPON COMPLETION OF CONFORMITY INSPECTION). LESSOR HEREBY CERTIFIES THAT THE AIRCRAFT COMPLIES WITH THE MAINTENANCE AND INSPECTION
REQUIREMENTS CONTAINED IN THE ABOVE LISTED FEDERAL AVIATION REGULATION FOR LESSEE’S USE OF THE AIRCRAFT UNDER THIS LEASE.
7.2. Representation Regarding Operational Control. LESSEE, WHOSE NAME AND ADDRESS APPEAR HEREIN, IS RESPONSIBLE FOR OPERATIONAL
CONTROL OF THE AIRCRAFT UNDER THE LEASE. LESSEE HEREBY CERTIFIES THAT IT UNDERSTANDS ITS RESPONSIBILITIES FOR COMPLIANCE WITH THE FEDERAL AVIATION REGULATIONS APPLICABLE TO THE AIRCRAFT.
7.3. Information from FAA. LESSEE UNDERSTANDS THAT AN EXPLANATION OF FACTORS BEARING ON OPERATIONS CONTROL AND PERTINENT FEDERAL
AVIATION REGULATIONS CAN BE OBTAINED FROM THE NEAREST FAA FLIGHT STANDARDS DISTRICT OFFICE, GENERAL AVIATION DISTRICT OFFICE, OR AIR CARRIER DISTRICT OFFICE.
7.4. FAA Notification: in accordance with FAR 91.23. The Parties shall take the following actions upon execution of this Agreement: (a) a copy of this Agreement shall be placed aboard the
Aircraft; (b) a copy of this agreement will be mailed to the FAA Aircraft Registration Branch, Attn: Technical Section, P.O. Box 25724, Oklahoma City, OK 73125 within 24 hours of execution; and (c) the FAA will be notified at least 48 hours
prior to the first flight of any aircraft under this Agreement.
*(Signature page follows)* | 371 |
agreement_18.md | *(Signature page follows)*
BLACKSTONE DRY LEASE - PAGE 9 OF 11 | 372 |
agreement_18.md | IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed in their
names and on their behalf by their duly authorized officers, effective as of the date first written above.
| | | | | |
| --- | --- | --- | --- | --- |
| | | | | |
| | | **113CS LLC** |
| | | As Lessor |
| | | |
| | | By: | | /s/ John A. Magliano |
| | | Name: | | John A. Magliano |
| | | Title: | | Vice President |
| | |
| | | **Blackstone Management Partners IV, L.L.C.** |
| | | As Lessee |
| | | |
| | | By: | | /s/ John A. Magliano |
| | | Name: | | John A. Magliano |
| | | Title: | | Managing Director -Taxes |
BLACKSTONE DRY LEASE - PAGE 10 OF 11 | 373 |
agreement_18.md | **APPENDIX A**
**113CS LLC**
**INVOICE**
| | | | | | | | | | | |
| --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- |
| | | | | | | | | | | |
| To | | | | | | | | | | |
| | | | | | | | | | | |
| | | | | | | | | | | |
| | | | | | | | | | | Date: |
Payable: Payable upon receipt
Ref Contract: Amended and Restated Master Aircraft Dry Lease Agreement between 113CS LLC and Blackstone
Management Partners IV, L.L.C. (“Lease”) dated Feb. 13, 2012.
| | | | | |
| --- | --- | --- | --- | --- |
| | | | | |
| Rental Period: | | to
| | | | 374 |
agreement_18.md | | | | |
| --- | --- | --- |
| | | |
| **Description** | | **Amount** |
| | |
| 1. Rental Payment | | $ |
| Rental Fee ($6,500 per flight hour of operation x
hours) | | |
| | |
| 2. Other Costs: (see paragraph 2.3 of Lease) | | $ |
| | | | | | | |
| --- | --- | --- | --- | --- | --- | --- |
| | | | | | | |
| Description | | Cost | | |
| | | |
| | | |
| | | |
| | | |
| | | | | |
| --- | --- | --- | --- | --- |
| | | | | |
| **TOTAL THIS INVOICE** | | **$** |
BLACKSTONE DRY LEASE - PAGE 11 OF 11 | 375 |
agreement_19.md | EX-10.2
2
h32008exv10w2.htm
FORM OF AIRCRAFT LEASE AGREEMENT
exv10w2 | 376 |
agreement_19.md | **Exhibit 10.2**
**FORM
OF AIRCRAFT LEASE AGREEMENT (SN [See Schedule I])**
dated as of December **\_\_\_\_\_\_\_****, 2005**(**“Agreement”**)
This Agreement (together with all supplements, annexes, exhibits and schedules hereto hereinafter
referred to as the **“Lease”**) is between **CFS Air, LLC**, with an office at **44 Old Ridgebury Road,
Danbury, CT 06810** (together with its successors and assigns, if
any **“Lessor”**) and **Air Logistics,
L.L.C.**, a limited liability company organized and existing under the laws of the State of Louisiana
with its mailing address and chief place of business at **4605 Industrial Drive, New Iberia, LA 70560**
(hereinafter called **“Lessee”**).
| | | |
| --- | --- | --- |
| **1.** | | **LEASING:** |
(a) Subject to the terms and conditions set forth below, Lessor agrees to lease to Lessee, and
Lessee agrees to lease from Lessor, the aircraft, including the airframe, engines and all
appurtenant equipment and property (together hereinafter the **“Aircraft”**) described in Annex A. | 377 |
agreement_19.md | (b) Lessor shall purchase the Aircraft from Lessee and lease it to Lessee if on or before the
Last Delivery Date (specified in Annex B) Lessor receives each of the following documents in form
and substance satisfactory to Lessor: (i) a copy of this Lease executed by Lessee, (ii) a Bill of
Sale from Lessee to Lessor in the form of Annex C; (iii) copies of insurance policies or, at
Lessor’s option, such other evidence of insurance which complies with the requirements of Section
10, (iv) evidence of an N number for the Aircraft; (v) evidence that the Aircraft has been duly
certified as to type and airworthiness by the Federal Aviation Administration (**“FAA”**); (vi)
evidence that Lessor’s designated FAA escrow agent (which may be FAA counsel) has received in
escrow the executed bill(s) of sale (which shall include, without limitation, a standard form FAA
Bill of Sale) and AC Form 8050-1 Aircraft Registration Form (except for the pink copy which shall
be available to be placed on the Aircraft upon acceptance thereof), and an executed duplicate of
this Lease all in proper form for filing with the FAA; (vii) resolution of Lessee authorizing this
Lease in the form of Annex D; (viii) a completed inspection and/or survey with respect to the
Aircraft in accordance with the requirements set forth in the Certificate of Acceptance; (ix) an
Additional Collateral Agreement executed by Lessee in a form and substance satisfactory to Lessor;
and (x) a Corporate Guaranty agreement executed by Offshore Logistics, Inc. (the “Guarantor”) in a | 378 |
agreement_19.md | and (x) a Corporate Guaranty agreement executed by Offshore Logistics, Inc. (the “Guarantor”) in a
form and substance satisfactory to Lessor (the “Guaranty”). Lessor’s obligation to lease the
Aircraft hereunder is further conditioned upon (1) the cost to Lessor of the acquisition of the
Aircraft not exceeding the Capitalized Lessor’s Cost stated on Annex A; (2) upon delivery of the
Aircraft, Lessee’s execution and delivery to Lessor of a Certificate of Acceptance in the form of
Annex E; and (3) filing of all necessary documents with, and the acceptance thereof by, the FAA. | 379 |
agreement_19.md | (c) Lessor hereby appoints Lessee its agent for inspection and acceptance of the Aircraft from
the Supplier. Once the Certificate of Acceptance has been signed, Lessee may not cancel this Lease
other than in accordance with its express terms.
| | | |
| --- | --- | --- |
| **2.** | | **TERM, RENT AND PAYMENT:** |
(a) The rent (**“Rent”**) payable for the Aircraft and Lessee’s right to use the Aircraft begins
on the date of the Certificate of Acceptance (**“Commencement Date”**). The term (**“Term”**) of this
Lease shall commence on the Commencement Date and shall continue, unless earlier terminated
pursuant to the provisions of this Lease, until and including the Expiration Date stated in Annex
B. If any Term is extended or renewed, the word **“Term”** shall be deemed to refer to all extended or
renewal Terms, and all provisions of this Lease shall apply during any such extension or renewal
Terms, except as may be otherwise specifically provided in writing. | 380 |
agreement_19.md | (b) Lessee shall pay rent to Lessor at its address stated above, except as otherwise directed
by Lessor. Rent payments shall be in the amount, payable at such intervals and due in accordance
with the provisions of Annex B. (Each payment of Rent is hereinafter referred to as a **“Rent
Payment”**). If any Interim Rent (as defined in Annex B) or Advance Rent (as defined in Annex B) is
payable, such Interim Rent and/or Advance Rent shall be set forth on Annex B and due in accordance
with the provisions of Annex B, and when received by Lessor, such Interim Rent shall be applied to
the Rent Payment due for the Interim Period as set forth on Annex B and such Advance Rent shall be
applied to the first Basic Term for Rent Payment as set forth on Annex B and any balance, if any,
shall be applied to the next scheduled Rent Payment. In no event shall any Advance Rent, Interim
Rent or any other Rent Payment be refunded to Lessee. If Lessor does not receive from Lessee
payment in full of any Rent Payment or other payment due hereunder on or prior to the due date
thereof, then Lessee shall pay to Lessor a late fee equal to 3% of the amount due but not received
within 10 days after the due date therefor, in addition to, the unpaid amount of such Rent Payment,
but not exceeding the lawful maximum, if any. Such late fee will be immediately due and payable
and is in addition to any other costs, fees and expenses Lessee may owe as a result of such late
payment. | 381 |
agreement_19.md | | | | |
| --- | --- | --- |
| **3.** | | **RENT ADJUSTMENT:** | | 382 |
agreement_19.md | (a) If, solely as a result of Congressional enactment of any law (including, without
limitation, any modification of, or amendment or addition to, the Internal Revenue Code of 1986, as
amended, (**“Code”**)), the maximum effective corporate income tax rate (exclusive of any minimum tax
rate) for calendar-year taxpayers (**“Effective Rate”**) is higher than thirty-five percent (35%) for
any year during the Term of this Lease, then Lessor shall have the right to increase such rent
payments by requiring payment of a single additional sum. The additional sum shall be equal to the
product of (i) the Effective Rate (expressed as a decimal) for such year less .35 (or, in the event
that any adjustment has been made hereunder for any previous year, the Effective Rate (expressed as
a decimal) used in calculating the next previous adjustment) times (ii) the adjusted Termination
Value (defined below) divided by (iii) the difference between the new Effective Rate (expressed as
a decimal) and one (1). The adjusted Termination Value shall be the Termination Value (calculated
as of the first rental due in the year for which such adjustment is being made) minus the Tax
Benefits that would be allowable under Section 168 of the Code (as of the first day of the year for
which such adjustment is being made and all future years of the lease term). The Termination
Values are defined on Annex F and the Tax Benefits are defined on Annex B. Lessee shall pay to
Lessor the full amount of the additional rent payment on the later of (i) receipt of notice or (ii)
the first day of the year for which such adjustment is being made. | 383 |
agreement_19.md | (b) Lessee’s obligations under this Section 3 accruing prior to the expiration or termination
of this Lease shall survive any expiration or termination of this Agreement. | 384 |
agreement_19.md | **4. TAXES AND FEES:** If permitted by law, Lessee shall report and pay promptly all taxes, fees and
assessments due, imposed, assessed or levied against the Aircraft or any part thereof or any engine
thereof (or purchase, disposition, ownership, delivery, leasing, possession, use or operation
thereof), this Agreement (or any rents or receipts hereunder), any Schedule, Lessor or Lessee, by
any domestic or foreign governmental entity or taxing authority during or related to the term of
this Agreement, including, without limitation, all license and registration fees, and all sales,
use, personal property, excise, gross receipts, franchise, stamp, value added, custom duties,
landing fees, airport charges, navigation service charges, route navigation charges or other taxes,
imposts, duties and charges, together with any penalties, fines or interest thereon (collectively
**“Taxes”**). Lessee shall have no liability for Taxes imposed by the United States of America or any
state or political subdivision thereof which are on or measured by the net income of Lessor except
as provided in Sections 3 and 14(c) (**“Income Taxes”**). Lessee shall promptly reimburse (on an after
tax basis) Lessor for any Taxes charged to or assessed against Lessor other than Income Taxes
except as provided in Sections 3 and 14(c). Lessee shall show Lessor as the owner of the Aircraft
on all tax reports or returns, and send Lessor a copy of each report or return and evidence of
Lessees payment of Taxes upon request*.* All of Lessor’s rights, privileges and indemnities
contained in this Section 4 shall survive the expiration or other termination of this Lease. The
rights, privileges and indemnities contained herein are expressly made for the benefit of, and
shall be enforceable by Lessor, its successors and assigns. | 385 |
agreement_19.md | **5. REPORTS:** Lessee will provide Lessor with the following in writing within the time periods
specified: (a) notice of any tax or other lien which attaches to the Aircraft and the full
particulars of the tax or lien, within thirty (30) days after Lessee becomes aware of the tax or
lien, (b) Guarantor’s complete financial statements, certified by a recognized firm of certified
public accountants, within ninety (90) days of the close of each fiscal year of Guarantor, and any
further financial information or reports, upon reasonable request (it being understood that so long
as Guarantor continues to report its financial statements in SEC form 10-K, and such 10-K remains
publicly available, Guarantor shall have no further obligation to deliver annual financial
statements); (c) notice to Lessor of the Aircraft’s location, and the location of all information,
logs, documents and records relating to the Aircraft and its use, maintenance and/or condition,
immediately upon reasonable request; (d) notice to Lessor of the relocation of the Aircraft’s
primary hangar location, as soon as practicable upon intent by Lessee to so relocate and in any
event at least simultaneously with any relocation; (e) notice of loss or damage to the Aircraft
which would cost more than the lesser of (i) ten percent (10%) of the original Capitalized Lessor’s
Cost or (ii) two hundred fifty thousand Dollars ($250,000.00) to repair or replace, within ten (10)
days of such loss or damage; (f) notice of any accident involving the Aircraft causing personal
injury or property damage, within the earlier of twenty (20) days of such accident or when required | 386 |
agreement_19.md | injury or property damage, within the earlier of twenty (20) days of such accident or when required
to be reported to the FAA; (g) copies of the insurance policies or other evidence of insurance
required by the terms hereof, promptly upon request by Lessor; (h) copies of all information, logs,
documents and records relating to the Aircraft and its use, maintenance and/or condition, required
to be reported to the FAA or reasonably requested by Lessor; (i) such information as may be
required to enable Lessor to file any reports required by any governmental authority as a result of
Lessor’s ownership of the Aircraft, promptly upon request of Lessor; (j) copies of any
manufacturer’s maintenance service program contract for the airframe or engines, promptly upon
request by Lessor; (k) evidence of Lessee’s compliance with FAA airworthiness directives and
advisory circulars and of compliance with other maintenance provisions of Section 7 hereof and the
return provisions of Section 11, promptly upon request of Lessor; and (l) notice of any change | 387 |
agreement_19.md | in Lessee’s state of incorporation or organization, within thirty (30) days of such change and (m)
such other reports or information as Lessor may reasonably request.
| | | |
| --- | --- | --- |
| **6.** | | **DELIVERY, REGISTRATION, USE AND OPERATION:** |
(a) The Aircraft shall be delivered directly from the Supplier to Lessee unless the Aircraft
is being leased pursuant to a sale leaseback transaction in which case Lessee acknowledges that it
is in possession of the Aircraft as of the Commencement Date.
(b) Lessee, at its own cost and expense, shall cause the Aircraft to be duly registered in the
name of Lessor under the Title 49, Subtitle VII of the United States Code, as amended (the **“FAA
Act”**), and shall not register the Aircraft under the laws of any other country. | 388 |
agreement_19.md | (c) The possession, use and operation of the Aircraft shall be at the sole risk and expense of
Lessee. Lessee acknowledges that it accepts full “operational control” of the Aircraft (as defined
in the Federal Aviation Regulations (**“FAR”**). Lessee agrees that the Aircraft will be used and
operated: (i) in compliance with any and all statutes, laws, ordinances, regulations and standards
or directives issued by any governmental agency applicable to the use or operation thereof; (ii) in
compliance with any airworthiness certificate, license or registration relating to the Aircraft
issued by any agency; (iii) in compliance with all safety and security directives of the FAA and
similar government regulations relating to aircraft security; and (iv) in a manner that does not
modify or impair any existing warranties on the Aircraft or any part thereof. Lessee will operate
the Aircraft predominantly in the conduct of its business and will not use or operate, or permit
the Aircraft to be used or operated, (aa) in violation of any United States export control law,
(bb) in a manner wherein the predominant use during any twelve month period is for a purpose other
than transportation for Lessee, its affiliates or its customers, or in a manner, for any time
period, such that Lessor or a third party shall be deemed to have “operational control” of the
Aircraft (except as otherwise expressly permitted hereunder), or (cc) for the transport of mail or
contraband. The Aircraft will, at all times be operated by duly qualified pilots holding at least
a valid pilot certificate for aircraft having the same weight as the Aircraft and instrument rating
and any other certificate, rating, type rating or endorsement appropriate to the Aircraft, purpose
of flight, condition of flight or as otherwise required by the FAR. Every pilot of the Aircraft | 389 |
agreement_19.md | of flight, condition of flight or as otherwise required by the FAR. Every pilot of the Aircraft
shall be employed and/or paid and contracted for by Lessee or its affiliates (except for any FAA
pilot who operates the Aircraft as part of an FAA inspection or to certify an airman), shall meet
all recency of flight requirements and shall meet the requirements established and specified by the
insurance policies required under this Lease and the FAA. The primary hangar location of the
Aircraft shall be as stated in Annex B (subject to Section 5(d)). Lessee shall not relocate the
primary hangar location to a hangar location outside the United States. Lessor may examine and
inspect the Aircraft, wherever located, on land and in flight, after giving Lessee reasonable prior
notice. | 390 |
agreement_19.md | (d) AT ALL TIMES DURING THE TERM OF THE LEASE, THE AIRCRAFT WILL BE LOCATED AND USED SOLELY
WITHIN THE CONTINENT OF NORTH AMERICA (INCLUDING MEXICO) AND THE CARIBBEAN (INCLUDING TRINIDAD)
WITH THE EXCEPTION OF CUBA. NOTWITHSTANDING THE FOREGOING, AT ALL TIMES DURING THE TERM OF THE
LEASE, LESSEE AGREES NOT TO OPERATE OR LOCATE THE AIRCRAFT, OR ALLOW THE AIRCRAFT TO BE OPERATED
OR LOCATED IN OR OVER (i) ANY COUNTRY OR JURISDICTION THAT DOES NOT MAINTAIN FULL DIPLOMATIC
RELATIONS WITH THE UNITED STATES, (ii) ANY AREA OF HOSTILITIES, (iii) ANY GEOGRAPHIC AREA WHICH IS
NOT COVERED BY THE INSURANCE POLICIES REQUIRED BY THIS LEASE, OR (iv) ANY JURISDICTION OR NATION
WHEREIN THE OPERATION OR LOCATION THEREOF WOULD VIOLATE ANY APPLICABLE LAW, REGULATION, OR
RESTRICTION, INCLUDING, BUT NOT LIMITED TO, THE U.S. EXPORT ADMINISTRATION REGULATIONS AND THE U.S.
INTERNATIONAL TRAFFIC IN ARMS REGULATIONS. LESSEE ALSO AGREES TO PROHIBIT ANY NATIONAL OF SUCH
RESTRICTED NATIONS FROM OPERATING THE AIRCRAFT.
(e) The engines set forth on Annex A shall be used only on the airframe described in Annex A
and shall only be removed for maintenance in accordance with the provisions of this Lease, except
as otherwise expressly permitted herein. | 391 |
agreement_19.md | (f) Lessor shall not disturb Lessee’s quiet enjoyment of the Aircraft during the Term of this
Lease unless an Event of Default has occurred and is continuing under this Lease. Lessor shall not
create or permit to exist any lien, encumbrance or defect of title on the Aircraft other than this
Lease or other liens in favor of Lessor.
(g) At all times prior to the termination or expiration of this Lease in accordance with its
terms, Lessee expressly assumes sole and exclusive responsibility for the determination and
implementation of all security measures and systems necessary or appropriate for the proper
protection of the Aircraft (whether on the ground or in flight) against theft, vandalism,
hijacking, destruction, bombing, terrorism or similar acts directly or indirectly affecting the
Aircraft, any part thereof, or any persons who (whether or not on board the Aircraft) may sustain
any injury or damage as a result of any such acts. Lessee expressly acknowledges that Lessee’s
implementation of such security measures and systems is a | 392 |
agreement_19.md | material obligation of Lessee under this Lease, and that Lessor shall have absolutely no
responsibility therefor. Lessee shall provide Lessor with such evidence as is reasonably requested
by Lessor regarding Lessee’s compliance with its obligations under this Section. However, in no
event shall Lessor have any duty or obligation to monitor, review or assess any security measures
maintained by Lessee or Lessee’s compliance with the provisions of this Section. Any review by
Lessor of such evidence as is provided pursuant to Lessor’s request hereunder shall be for Lessor’s
informational purposes only, and there shall be no inference or implication therefrom that Lessor
has reviewed or approved the adequacy or sufficiency of such recommendations or of the actual
security measures or systems employed by Lessee. Without limiting the generality of the foregoing,
it is expressly understood and acknowledged that Lessee, being in sole “operational control” of the
Aircraft, is uniquely in a position to identify and implement those security measures necessary to
comply with this Section and that in doing so, Lessee has not relied upon, and shall not rely upon,
any statement, act, or omission of Lessor.
| | | |
| --- | --- | --- |
| **7.** | | **MAINTENANCE:** |
(a) Lessee agrees that the Aircraft will be maintained in compliance with any and all
statutes, laws, ordinances, regulations and standards or directives issued by any governmental
agency applicable to the maintenance thereof, in compliance with any airworthiness certificate,
license or registration relating to the Aircraft issued by any agency and in a manner that does not
modify or impair any existing warranties on the Aircraft or any part thereof. | 393 |
agreement_19.md | (b) Lessee shall maintain, inspect, service, repair, overhaul and test the Aircraft (including
each engine) in accordance with (i) all maintenance manuals initially furnished with the Aircraft,
including any subsequent amendments or supplements to such manuals issued by the manufacturer from
time to time, (ii) all mandatory **“Service Bulletins”** issued, supplied, or available by or through
the manufacturer and/or the manufacturer of any engine or part with respect to the Aircraft, (iii)
all airworthiness directives applicable to the Aircraft issued by the FAA or similar regulatory
agency having jurisdictional authority, and causing compliance to such directives to be completed
through corrective modification in lieu of operating manual restrictions (except for temporary
operating manual restrictions for a flight to a repair facility), and (iv) all maintenance
requirements set forth in Annex G hereto. Lessee shall maintain all records, logs and other
materials required by the manufacturer for enforcement of any warranties or by the FAA. All
maintenance procedures required hereby shall be undertaken and completed in accordance with the
manufacturer’s recommended procedures, and by properly trained, licensed, and certificated
maintenance sources and maintenance personnel, so as to keep the Aircraft and each engine in as
good operating condition as when delivered to Lessee hereunder, ordinary wear and tear excepted,
and so as to keep the Aircraft in such operating condition as may be necessary to enable the
airworthiness certification of such Aircraft to be maintained in good standing at all times under
the FAA. | 394 |
agreement_19.md | (c) Lessee agrees, at its own cost and expense, to (i) cause the Aircraft and, subject to
Section 8 hereof, each engine thereon to be kept numbered with the identification in serial number
therefor as specified in Annex A; (ii) prominently display on the Aircraft that N number, and only
that N number, specified in Annex A; and (iii) notify Lessor in writing thirty (30) days prior to
making any change in the configuration (other than changes in configuration mandated by the FAA),
appearance and coloring of the Aircraft from that in effect at the time the Aircraft is accepted by
Lessee hereunder, and in the event of such change or modification of configuration, coloring or
appearance, to restore, upon request of Lessor, the Aircraft to the configuration, coloring or
appearance in effect on the Commencement Date or, at Lessor’s option to pay to Lessor an amount
equal to the reasonable cost of such restoration. Lessee will not place the Aircraft in operation
or exercise any control or dominion over the same until such Aircraft marking has been placed
thereon. Lessee will replace promptly any such Aircraft marking which may be removed, defaced or
destroyed. Notwithstanding anything in this Section 7(c), it is agreed and understood by Lessor
and Lessee that (i) the Aircraft will be re-painted a new color scheme in red, white and blue
during the Term when the Aircraft is brought in for maintenance and (ii) at such time, the marking
on the Aircraft that reads “Air Logistics” will be changed to read “Air Logistics, a Bristow
company” (the changes contemplated by clause (i) and (ii), collectively, the “Approved Changes”).
Lessor agrees that Lessee shall not be obligated to restore the Aircraft to its configuration, | 395 |
agreement_19.md | Lessor agrees that Lessee shall not be obligated to restore the Aircraft to its configuration,
coloring and appearance it had in order to merely remove the Approved Changes. | 396 |
agreement_19.md | (d) Lessee shall be entitled from time to time during the Term of this Lease to acquire and
install on the Aircraft at Lessee’s expense, any additional accessory, device or equipment as
Lessee may desire (each such accessory, device or equipment, an **“Addition”**), but only so long as
such Addition (i) is ancillary to the Aircraft; (ii) is not required to render the Aircraft
complete for its intended use by Lessee; (iii) does not alter or impair the originally intended
function or use of the Aircraft; and (iv) can be readily removed without causing material damage.
Title to each Addition which is not removed by Lessee prior to the return of the Aircraft to Lessor
shall vest in Lessor upon such return. Lessee shall repair all damage to the Aircraft resulting
from the installation or removal of any Addition so as to restore the Aircraft to its condition
prior to installation, ordinary wear and tear excepted. | 397 |
agreement_19.md | (e) Any alteration or modification (each an **“Alteration”**) with respect to the Aircraft that
may at any time during the Term of this Lease (i) that are necessary or advisable to comply with
Lessee’s obligations pursuant to this Lease or (ii) may be required to comply with any applicable
law or any governmental rule or regulation shall be made at the expense of Lessee. Any repair made
by Lessee of or upon the Aircraft or replacement parts, including any replacement engine, installed
thereon in the course of repairing or maintaining the Aircraft, or any Alteration, shall be deemed
an accession, and title thereto shall be immediately vested in Lessor without cost or expense to
Lessor.
(f) Except as permitted under this Section 7, Lessee will not modify the Aircraft or affix or
remove any accessory to the Aircraft leased hereunder.
(g) The Aircraft shall be maintained and operated in accordance with the applicable Part 135
standards.
| | | |
| --- | --- | --- |
| **8.** | | **LIENS, SUBLEASE AND ASSIGNMENT:** | | 398 |
agreement_19.md | (a) LESSEE SHALL NOT SELL, TRANSFER, ASSIGN OR ENCUMBER THE AIRCRAFT, ANY ENGINE OR ANY PART
THEREOF, LESSOR’S TITLE OR ITS RIGHTS UNDER THIS LEASE, EXCEPT AS OTHERWISE EXPRESSLY PERMITTED
HEREIN. LESSEE SHALL NOT, WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR, SUBLET, CHARTER OR PART
WITH POSSESSION OF THE AIRCRAFT OR ANY ENGINE OR PART THEREOF OR ENTER INTO ANY INTERCHANGE
AGREEMENT EXCEPT AS OTHERWISE PERMITTED HEREIN. Lessee shall keep the Aircraft, each engine and
any part thereof free and clear of all liens and encumbrances other than those which result from
(i) the respective rights of Lessor and Lessee as herein provided; (ii) liens arising from the acts
of Lessor or its agents; (iii) liens for taxes not yet due or being reasonably disputed in good
faith so long as Lessee delivers collateral to Lessor in an amount satisfactory to Lessor and such
amount does not result in any imminent risk of loss or forfeiture of the Aircraft or any civil or
criminal liability on Lessor; and (iv) materialmen’s, mechanics’, workmen’s, repairmen’s,
employees’ or other like liens (whether inchoate or not) arising in the ordinary course of business
of Lessee for sums not yet delinquent or being contested in good faith (and for the payment of
which adequate assurances in Lessor’s judgment have been provided Lessor).
Notwithstanding the foregoing, so long as Lessee is not in default hereunder, Lessee may
charter the Aircraft so long as: | 399 |