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agreement_20.md | | ILFC Aviation Services (Europe) B.V. | | Netherlands |
| NimbusFunding B.V. | | Netherlands |
| Sapa Aircraft Leasing B.V. | | Netherlands |
| StratocumulusFunding B.V. | | Netherlands |
| Worldwide Aircraft Leasing B.V. | | Netherlands |
| AerCap Singapore Pte. Ltd. | | Singapore |
| AeroTurbine Asia Pte. Ltd. | | Singapore |
| ILFC Singapore Pte. Ltd. | | Singapore |
| 32904 Sverige AB | | Sweden |
| AerFi Sverige AB | | Sweden |
| International Lease Finance Corporation (Sweden) AB | | Sweden |
| AerCap UK Limited | | United Kingdom |
| AeroTurbine Europe Limited | | United Kingdom |
| Aircraft 32A-3424 Limited | | United Kingdom |
| Aircraft 32A-3454 Limited | | United Kingdom |
| Archytas Aviation Limited | | United Kingdom |
| ILFC UK Limited | | United Kingdom |
| Temescal UK Limited | | United Kingdom |
| Whitney UK Leasing Limited | | United Kingdom |
| AerCap Global Aviation Trust | | United States |
| AerCap Group Services, Inc | | United States |
| AerCap Hangar 52, Inc. | | United States | | 700 |
agreement_20.md | 8
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| | | 701 |
agreement_20.md | | |
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| AerCap Leasing USA I, Inc. | | United States |
| AerCap Leasing USA II, Inc. | | United States |
| AerCap U.S. Global Aviation LLC | | United States |
| AerCap, Inc. | | United States |
| AeroTurbine, LLC | | United States |
| Aircraft 32A-1658 Inc. | | United States |
| Aircraft 32A-1695 Inc. | | United States |
| Aircraft 32A-1905 Inc. | | United States |
| Aircraft 32A-1946 Inc. | | United States |
| Aircraft 32A-2024 Inc. | | United States |
| Aircraft 32A-2594 Inc. | | United States |
| Aircraft 32A-2731 Inc. | | United States |
| Aircraft 32A-585 Inc. | | United States |
| Aircraft 32A-645 Inc. | | United States |
| Aircraft 32A-726 Inc. | | United States |
| Aircraft 32A-760 Inc. | | United States |
| Aircraft 32A-775 Inc. | | United States |
| Aircraft 32A-782 Inc. | | United States |
| Aircraft 32A-987 Inc. | | United States |
| Aircraft 32A-993, Inc. | | United States |
| Aircraft 33A-132, Inc. | | United States |
| Aircraft 33A-358 Inc. | | United States |
| Aircraft 34A-152 Inc. | | United States | | 702 |
agreement_20.md | | Aircraft 34A-152 Inc. | | United States |
| Aircraft 34A-216 Inc. | | United States |
| Aircraft 34A-395 Inc. | | United States |
| Aircraft 34A-48 Inc. | | United States |
| Aircraft 34A-93 Inc. | | United States |
| Aircraft 73B-26315 Inc. | | United States |
| Aircraft 73B-26317 Inc. | | United States |
| Aircraft 73B-28249 Inc. | | United States |
| Aircraft 73B-28252 Inc. | | United States |
| Aircraft 73B-30036 Inc. | | United States |
| Aircraft 73B-30646 Inc. | | United States |
| Aircraft 73B-30661 Inc. | | United States |
| Aircraft 73B-30671 Inc. | | United States |
| Aircraft 73B-30730 Inc. | | United States |
| Aircraft 73B-32796 Inc. | | United States |
| Aircraft 73B-32841 Inc. | | United States |
| Aircraft 73B-38821 Inc. | | United States |
| Aircraft 73B-41794 Inc. | | United States |
| Aircraft 73B-41796 Inc. | | United States |
| Aircraft 73B-41806 Inc. | | United States |
| Aircraft 73B-41815 Inc. | | United States |
| Aircraft 74B-27602 Inc. | | United States |
| Aircraft 75B-28834 Inc. | | United States | | 703 |
agreement_20.md | 9
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| | | 704 |
agreement_20.md | | |
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| Aircraft 75B-28836 Inc. | | United States |
| Aircraft 76B-26261 Inc. | | United States |
| Aircraft 76B-26327 Inc. | | United States |
| Aircraft 76B-26329 Inc. | | United States |
| Aircraft 76B-27597 Inc. | | United States |
| Aircraft 76B-27600 Inc. | | United States |
| Aircraft 76B-27613 Inc. | | United States |
| Aircraft 76B-27615 Inc. | | United States |
| Aircraft 76B-28132 Inc. | | United States |
| Aircraft 76B-28206 Inc. | | United States |
| Aircraft 77B-29404 Inc. | | United States |
| Aircraft 77B-29908 Inc. | | United States |
| Aircraft 77B-32717 Inc. | | United States |
| Aircraft 77B-32723 Inc. | | United States |
| Aircraft A330 143 Inc. | | United States |
| Aircraft A330 72 Inc. | | United States |
| Aircraft A330 98 Inc. | | United States |
| Aircraft Andros Inc. | | United States |
| Aircraft B757 29377 Inc. | | United States |
| Aircraft B757 29382 Inc. | | United States |
| Aircraft B767 29388 Inc. | | United States |
| Aircraft Lotus Inc. | | United States |
| Aircraft SPC-12, LLC | | United States | | 705 |
agreement_20.md | | Aircraft Lotus Inc. | | United States |
| Aircraft SPC-12, LLC | | United States |
| Aircraft SPC-14, Inc. | | United States |
| Aircraft SPC-3, Inc. | | United States |
| Aircraft SPC-4, Inc. | | United States |
| Aircraft SPC-8, Inc. | | United States |
| Aircraft SPC-9, LLC | | United States |
| Apollo Aircraft Inc. | | United States |
| Artemis US Inc. | | United States |
| Brokat Leasing, LLC | | United States |
| CABREA, Inc. | | United States |
| Camden Aircraft Leasing Trust | | United States |
| Charmlee Aircraft Inc. | | United States |
| Cloudbreak Aircraft Leasing Inc. | | United States |
| Delos Aircraft Inc. | | United States |
| Doheny Investment Holding Trust | | United States |
| Euclid Aircraft, Inc. | | United States |
| Fleet Solutions Holdings LLC | | United States |
| Flying Fortress Financing, LLC | | United States |
| Flying Fortress Holdings, LLC | | United States |
| Flying Fortress Investments, LLC | | United States |
| Flying Fortress US Leasing Inc. | | United States |
| Grand Staircase Aircraft, LLC | | United States |
| Hyperion Aircraft Financing Inc. | | United States | | 706 |
agreement_20.md | 10
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| | | 707 |
agreement_20.md | | |
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| Hyperion Aircraft Inc. | | United States |
| ILFC Aviation Consulting, Inc. | | United States |
| ILFC Dover, Inc. | | United States |
| ILFC Volare, Inc. | | United States |
| Interlease Aircraft Trading Corporation | | United States |
| Interlease Management Corporation | | United States |
| International Lease Finance Corporation | | United States |
| Klementine Holdings, Inc. | | United States |
| Maiden Leasing, LLC | | United States |
| Park Topanga Aircraft, LLC | | United States |
| Pelican 35302, Inc. | | United States |
| Romandy Triple Sept LLC | | United States |
| Temescal Aircraft, LLC | | United States |
| Top Aircraft, Inc. | | United States |
| Whitney US Leasing, Inc. | | United States |
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| Participations | | |
| AerDragon Aviation Partners Limited and Subsidiaries (16.7%) | | Ireland |
| Peregrine Aviation Company Limited and Subsidiaries (9.5%) | | Ireland |
| AerLift Leasing Limited and Subsidiaries (39.3%) | | Isle of Man |
| Acsal Holdco LLC (19.4%) | | United States |
11
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agreement_21.md | EX-10.4
5
ex-104cobrabrimnetcharterl.htm
EXHIBIT 10.4 | 709 |
agreement_21.md | Exhibit
AIRCRAFT LEASE AND MANAGEMENT AGREEMENT(N745BW) THIS AIRCRAFT LEASE AND MANAGEMENT AGREEMENT (this "Agreement") is made and entered into as of December 21, 2018 (the "Effective Date"), by and between Cobra Aviation Services LLC, a Delaware limited liability company ("Owner"), and Brim Equipment Leasing, Inc., an Oregon corporation ("Manager"). Owner and Manager are sometimes collectively referred to herein as the "Parties" and, individually, as a "Party". RECITALS A. Owner is the registered owner at the U.S. Federal Aviation Administration ("FAA") of Aircraft set forth on Exhibit A (together with the engines, accessories and equipment installed thereon from time to time, the "Aircraft"). B. Owner desires to lease the Aircraft and related ground support equipment described on Exhibit B (“Ground Support Equipment”), to Manager hereunder.
C. Owner desires Manager to operate the Aircraft pursuant to Title 14 of the Code of Federal Regulations ("FAR"), Parts 133, 135, 137 and any other applicable laws or regulations. | 710 |
agreement_21.md | D. Manager has personnel experienced in the business of managing, operating, maintaining and scheduling aircraft and Ground Support Equipment and desires to perform the services and operate the Aircraft pursuant to FAR Parts 133, 135 and 137 as described herein and any other applicable laws or regulations. In consideration of the recitals and the promises and covenants contained herein, and for other good and valuable consideration, the Parties hereby agree as follows: ARTICLE ITERM; ACCOUNTING 1.1 Lease of Aircraft and Ground Support Equipment; Term. Owner hereby leases the Aircraft and Ground Support Equipment to Manager and Manager hereby leases the Aircraft and Ground Support Equipment from Owner, subject to the terms and conditions of this Agreement. The term of this Agreement shall begin on the date hereof and shall continue in effect for one (1) year (the "Term"). Owner and Manager shall have the right to terminate this Agreement upon thirty (30) days’ written notice to the other party for any or no reason. This agreement may also be terminated for cause, including a default hereunder and shall terminate immediately upon the Manger’s suspension, revocation or surrender of any of its Part 133, 135, of 137 Certificate.
1.2 Accounting. Within 20 days after the end of each month during the Term, Manager shall deliver to Owner: (a) a reasonably detailed accounting statement (each, a "Monthly Statement") setting forth the amounts payable to Owner during the previous month pursuant to the terms of this Agreement, including, without limitation, (i) the amounts payable to Owner in
Owner Initials: \_\_\_ Manager Initials: \_\_\_\_\_ | 711 |
agreement_21.md | accordance with Section 4.5 and (ii) the amounts payable to Manager in accordance with Section 4.1; and (b) the amount, if any, payable by either Party, to the other Party, as set forth on such Monthly Statement. Within 10 days after Owner’s receipt of any Monthly Statement showing an amount payable by a Party, to the other Party, the paying Party shall remit such payment to the other Party. 1.3 Redelivery of Books, Records and Aircraft. Promptly after the termination of this Agreement and subject to the terms and conditions of this Agreement, Manager shall redeliver to Owner the Aircraft, related equipment, and Ground Support Equipment and parts which have been installed on the Aircraft or Ground Support Equipment any Aircraft-specific books and records in Manager's possession. The Manager will re-deliver the Aircraft and Ground Support Equipment to Owner, on the day that this Agreement is terminated at the Base of Operations, defined in Section 2.2, below, or any other location within the continental United States as Owner may elect, | 712 |
agreement_21.md | below, or any other location within the continental United States as Owner may elect, at Owner’s expense. ARTICLE IIMANAGEMENT SERVICES 2.1 Generally. Manager hereby agrees to manage and operate the Aircraft and furnish certain aircraft management, maintenance and other aviation services to Owner as further described in this Article II (collectively, the "Management Services") during the Term. The Management Services shall be provided in accordance with: (a) applicable FARs; (b) Manager's established policies and procedures with respect to its own aircraft, as such procedures may be modified from time to time, including without limitation the Brim Equipment Leasing, LLC, Part 133, 135, and/or 137 Approved General Operations Manual (as amended, modified or supplemented from time to time, the "Manual"); (c) applicable manufacturers’ recommended maintenance programs, and (d) the requirements contained in Manager’s Part 133, 135, and/or 137 Operations Specifications (as defined in Section 4.1 below). | 713 |
agreement_21.md | 2.2 Base of Operations. Manager shall be solely responsible for obtaining and maintaining appropriate hangar, office, and shop space at Ashland / Parker Airport (S03) or such other mutually agreeable location as reasonably determined by the Owner and Manager from time to time during the Term ("Base of Operations"). Owner shall not be responsible for the payment of any costs or expenses associated with maintaining, staffing, or operating the Base of Operations.
2.3 Maintenance and Inspections.
(a) Manager shall be responsible for conducting or monitoring and overseeing the maintenance, preventative maintenance and required or otherwise necessary or advisable inspections of the Aircraft in accordance with the FAA-approved Brim Equipment Leasing Maintenance Program (the "Manager Maintenance Program") and applicable FARs, including, without limitation, FAR Parts 133, 135, and 137, and in accordance with the manufacturer’s minimum maintenance requirements. No period of maintenance, preventative maintenance or inspection shall be delayed or postponed for the purpose of scheduling the Aircraft, unless said
Owner Initials: \_\_\_ Manager Initials: \_\_\_\_\_ | 714 |
agreement_21.md | maintenance or inspection can be deferred per FAA authorizations in accordance with approved FAA approved Approved Aircraft Inspection Program.
(b) Manager will perform maintenance of the Aircraft, keep the interior and the exterior of the Aircraft clean, repair discrepancies and perform scheduled inspections. All personnel of Manager involved with the performance of maintenance, preventative maintenance or alterations to the Aircraft shall be by appropriately licensed and approved Brim personnel in accordance with Brim FAA approved maintenance program.
(c) Notwithstanding the foregoing, Manager may, in its sole and absolute discretion, subcontract with third party maintenance providers to perform any maintenance on the Aircraft; provided, however, any such third party maintenance provider shall be an FAA approved facility meeting the requirements of the Manager Maintenance Program. As between the Owner and Manger the expenses and costs of such third party maintenance provider shall be for the account of the Manager. Owner appoints Manager as its agent for the limited purpose of executing, for and on behalf of Owner, any maintenance program and maintenance inspection agreements or any other agreement as shall be necessary in order for Manager to fulfill its obligations under this Agreement, the Part 133, 135 and 137 Operations Specifications, the Manager Maintenance Program, the Part 133, 135, and 137 Certificate (as defined in Section 4.1 below) and applicable FARs. In any event where Manager would be exercising its limited authority as the agent for the Owner as described in this Section 2.3(c), | 715 |
agreement_21.md | 2.4 Logbooks and Records. Manager shall maintain all logbooks and records pertaining to the Aircraft in accordance with applicable FARs. Such logbooks and records shall be kept by Manager in a fireproof file cabinet and made available for examination and copying by Owner or Owner’s duly authorized agents, at Owner’s reasonable advance request, at the location of such books and records at Manager's Flight Operations office in Ashland, Oregon (the "Flight Operations Office"). Upon the termination of this Agreement, Manager shall deliver such logbooks and records to Owner.
Manager shall also maintain a computerized flight and maintenance record tracking system with off-site backup capability, all of which will be available for inspection and copying by Owner or Owner’s duly authorized agents, upon reasonable request by Owner. Upon termination of this Agreement, Manager shall deliver a copy of such stored data to Owner.
2.5 Scheduling and Setup Service. In addition to those duties assumed by Manager elsewhere herein, Manager shall also provide the following services with respect to the use of the Aircraft: (a) [reserved];
(b) dispatch and flight following;
(c) create itineraries;
Owner Initials: \_\_\_ Manager Initials: \_\_\_\_\_ | 716 |
agreement_21.md | (d) arrange for all fuel setup for the Aircraft at all airports at which the aircraft operates, utilizing fuel discounts available to Manager;
(e) [reserved]; and
(f) utilize and maintain the Flight Operations Office, in part: (i) in order to assist the flight crew in the performance of their duties; (ii) in order to achieve scheduling of flights and flight personnel, flight following and communication; (iii) in order to perform routine scheduled and unscheduled maintenance to the Aircraft; and (iv) in the planning and support of flight operations.
2.6 [Reserved]
2.7 Costs and Expenses.
(a) Operating Cost and Expenses. Manager shall be solely responsible for any and all costs and expenses that are related to or arise in connection with the possession, operation, management, maintenance, or insuring of the Aircraft during the Term, including without limitation:
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| (i) | the salaries, expenses (including travel expenses), per diems of flight crews operating remotely, and hourly flight pay for each required member; |
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| --- | --- |
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| (ii) | the training and testing of personnel pursuant to this Agreement; |
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| --- | --- |
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| (iii) | fuel expenses; |
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| --- | --- |
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| (iv) | the costs of maintaining the Manager’s Polices of insurance maintained in accordance with this Agreement; | | 717 |
agreement_21.md | | | |
| --- | --- |
| | |
| (v) | maintenance and repair costs and expenses, including without limitation providing all parts. Manager shall use reasonable efforts under the circumstances to notify Owner in advance of any maintenance anticipated to cost in excess of Ten Thousand ($10,000) Dollars. Such notice may be given verbally, followed up by an e-mail or fax, notwithstanding the provisions of Section 11.2 below; |
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| --- | --- |
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| (vi) | payments required to maintain any Services Program (as defined in 2.11(g)); |
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| --- | --- |
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| (vii) | the costs and expenses associated with obtaining and maintaining FAA Approval (as defined in Section 2.1); and |
Owner Initials: \_\_\_ Manager Initials: \_\_\_\_\_ | 718 |
agreement_21.md | | | |
| --- | --- |
| | |
| (viii) | the Hourly Aircraft Pro-Rata share of the Manager’s Selling, General & Administrative Expenses (“SG&A”). For the avoidance of doubt the “Aircraft Pro-Rata share” of the Manager’s SG&A shall be calculated by dividing Manager’s total SG&A by the total number of number of aircraft in the Manager’s fleet. The “Hourly Aircraft Pro-Rata share” shall be calculated by dividing the Aircraft Pro-Rata share by the total number of hours flown by the Aircraft. | | 719 |
agreement_21.md | (collectively the “Costs”)
2.8 Fines and Penalties. Any fines, penalties, or similar charges of any kind that are assessed by a government, governmental agency, governmental subdivision or unit, airport or airport authority or aviation authority, including without limitation the FAA, with regard to or related to or arising from the management and/or operation of the Aircraft shall be for the account of and paid for by the Manager unless such violation is the direct result of actions by the Owner.
2.9 Taxes. Owner shall pay to Manager and Manager shall collect from Owner and remit to the appropriate taxing authorities all taxes (including without limitation federal excise taxes applicable to Owner Charter), fees, assessments, sales tax, personal property tax, license and registration fees, together with all fines and penalties assessed by any taxing or governmental authority (collectively, "Taxes"), which relate in any way to the ownership, use or operation of the Aircraft, except for any federal or state taxes based on Manager's net income or capital gains or any franchise taxes imposed on Manager and except for federal excise taxes attributable to third party charters other than Owner Charter. Owner shall indemnify, defend and hold Manager harmless from and against Owner’s failure to pay the Taxes to Manager in order to allow Manager to remit the same in a timely manner.
Owner and Manager will assist and cooperate with each other to obtain all refunds on fuel taxes paid on fuel for all Commercial Operations, such refunds to be remitted to Manager upon receipt. Owner and Manager acknowledge that fuel receipts forming the foundation for the fuel tax refunds may not be received from vendors in time for monthly reconciliations; as a result, such refunds may be reflected in subsequent monthly reconciliations. 2.10 [RESERVED]. | 720 |
agreement_21.md | 2.11 Other Management Services. Manager shall also undertake the following management services, at no additional charge to Owner:
(a) Employment or other engagement, training, and monitoring of any flight crew assigned to the Aircraft in accordance with Section 4.4 below and such other personnel provided
Owner Initials: \_\_\_ Manager Initials: \_\_\_\_\_ | 721 |
agreement_21.md | by Manager in accordance with this Agreement as may be required to provide the Management Services;
(b) Coordinate and obtain insurance as provided in Article V below;
(c) Liaise with the FAA and other pertinent governmental entities and comply with applicable statutes, rules and regulations enforced by such entities in connection with the management and operation of the Aircraft pursuant to this Agreement;
(d) Liaise with the Transportation Security Administration, Department of Homeland Security, and other related governmental entities and comply with applicable statutes, rules and regulations enforced by such entities in connection with the management and operation of the Aircraft pursuant to this Agreement;
(e) Comply with all applicable customs requirements and regulations with regard to leaving and entering the United States and any foreign country;
(f) Provide recordkeeping, reporting, budgeting and other bookkeeping, accounting and administrative functions as set forth herein or as reasonably requested by Owner, including payment of all Aircraft-related invoices and expenses; and
(g) Administer any manufacturer or other maintenance or service programs currently in existence or entered into during the term of this Agreement (collectively, the “Service Programs”); and take the actions necessary to keep the Service Programs current and in full force and effect.
ARTICLE III[RESERVED] | 722 |
agreement_21.md | ARTICLE III[RESERVED]
ARTICLE IVCOMMERCIAL OPERATIONS 4.1 FAA Approval of the Aircraft. Owner shall: (a) cooperate as reasonably requested by Manager in connection with securing and maintaining the approval required by the FAA (the "FAA Approval") in order to (i) continue to include the Aircraft on the Operations Specifications issued to Manager by the FAA pursuant to FAR Parts 133, 135 and 137 (the "Operations Specifications") and (ii) operate the Aircraft pursuant to FAR Parts 133, 135 and Part 137 pursuant to the Operating Certificates issued to Manager by the FAA ("Operating Certificate") and (b) be responsible and pay for any and all expenses incurred by Manager in connection with maintaining the FAA Approval, including, without limitation, periodically positioning the Aircraft to the FAA requested inspection location, as requested by Manager for an FAA inspection. Any operation of the Aircraft conducted for commercial purposes under FAR Parts 133, 135, 137 during the Term (each, a "Commercial Operation" and, collectively, the "Commercial Operations") and any related flight (such as a ferry flight or repositioning flight) shall be subject to the provisions of this
Owner Initials: \_\_\_ Manager Initials: \_\_\_\_\_ | 723 |
agreement_21.md | Article IV, as applicable. Notwithstanding anything herein to the contrary, Owner shall not be obligated to pay for any costs, fees or expenses associated with the amendment, supplement or modifications of the Manual or any other manuals used by Manager or the preparation of any new or replacement Manual or any other manuals used by Manager. Any Costs associated with obtaining or maintaining the FAA Approval shall be billed to Owner, in an amount equal to the Costs of such operations plus a markup of ten percent.
4.2 Commercial Operations. The Parties acknowledge and agree that they intend for the Aircraft to be utilized by Manager for Commercial Operations at all times with the express understanding that Manager may, in its sole discretion, operate the Aircraft on appropriate ferry, maintenance, training (as limited in Section 2.6) or positioning flights under Part 91 of the FARs. Whether operating under Parts 133, 135, 137 or under Part 91, Manager will be in Operational Control of the flights.
4.3 Operational Control During Commercial Operations. | 724 |
agreement_21.md | 4.3 Operational Control During Commercial Operations.
(a) The Parties hereby acknowledge and agree that Manager shall have exclusive use of the Aircraft and maintain operational control of the Aircraft at all times.. Without limiting the foregoing and notwithstanding anything contained herein to the contrary, at all times during any Commercial Operation, the Parties hereby agree that Manager shall: (i) have possession, control and command of the Aircraft; (ii) have the sole and absolute exercise of authority over initiating, conducting or terminating any flight of the Aircraft; (iii) supervise and control the maintenance of the Aircraft; (iv) determine whether each Commercial Operation can be safely operated; (v) release all Commercial Operations; (vi) select, supervise and control the flight crew of the Aircraft, including, without limitation, determining whether any pilot of the Aircraft: (1) is a Qualified Pilot (as defined in Section 4.4 below); or (2) has met rest period requirements or exceeded flight time limits. In exercising Operational Control of the Aircraft, Manager shall comply with the FARs, insurance requirements, pertinent regulations of the United States and the applicable regulations or laws of any other country or aviation authority having jurisdiction over the Aircraft or any operation of the Aircraft hereunder. | 725 |
agreement_21.md | (b) Owner acknowledges and agrees that the pilot-in-command during any Commercial Operation, in his or her sole discretion, may terminate any flight, refuse to commence any flight or take any other such action which, in the judgment of such pilot, is necessitated by safety considerations. No such action by the pilot-in-command shall create or support any liability for loss, injury, damage or delay to Owner or any other person. Owner further agrees that Manager shall not be liable for delay or failure to furnish or return the Aircraft or flight crew pursuant to this Agreement when such failure is caused by government regulation or authority, mechanical difficulty, war, civil commotion, strikes or labor disputes, weather conditions, acts of God or other causes beyond Manager's control or is necessary to adhere to the requirements of the Manual.
4.4 Selection of Pilots. The Parties agree that Manager shall have the sole and absolute discretion to select the pilots to be utilized in connection with any Commercial Operation; provided,
Owner Initials: \_\_\_ Manager Initials: \_\_\_\_\_ | 726 |
agreement_21.md | however, Manager shall only use Qualified Pilots (as defined in this Section 4.4(a) below) in connection with all flights..
(a) For purposes of this Agreement, the term "Qualified Pilot" shall mean a pilot who, at the minimum:
(i) with respect to a pilot-in-command, holds a valid FAA commercial pilot certificate with appropriate category and class ratings, and if required for the operation being conducted an instrument - helicopter rating, no less than 2000 flight hours in helicopters, and 500 hours in turbine helicopters;
(ii) holds a current first or second class medical certificate in accordance with applicable FARs;
(iii) is current and qualified with respect to FAR Part 61 to conduct operations under FAR Part 133, 135, and 137, as applicable.;
(iv) is familiar with and qualified pursuant to the Manual, including without limitation (A) has been screened through the pre-employment and background checks, (B) has satisfactorily completed the requisite proficiency checks and, with respect to a pilot-in-command, has satisfactorily completed the requisite line checks, (C) is enrolled in the drug and alcohol testing program, and (D) is in compliance with the initial and recurring Transportation Security Administration training requirements;
(v) is approved as pilot with respect to the Aircraft insurance coverage and under the Manual; and
(vi) is otherwise qualified to act as a required flight crew member for the Aircraft.
4.5 Revenue Sharing with Respect to Commercial Operations.
In consideration for making the Aircraft available for Commercial Operations pursuant to the terms of this Article IV the Manager shall pay Rent to the Owner in the following amounts: | 727 |
agreement_21.md | (a) Third Party Charters. An amount equal to the Third Party Charter Lease Rate, as defined on Exhibit A, for each Flight Hour (which shall consist of the time between engine start and engine stop rounded to the nearest tenth of an hour) the Aircraft is operated by Manager for Commercial Operations other than Owner Charters.
(b) Owner Charters. An amount equal to the Owner Charter Lease Rate, as defined on Exhibit A, for each Flight Hour the Aircraft is operated by Manager for Commercial Operations for the Owner (each such operation an “Owner Charter”. For the avoidance of doubt,
Owner Initials: \_\_\_ Manager Initials: \_\_\_\_\_ | 728 |
agreement_21.md | the minimum rate charged for any Owner Charter shall be no less than the Owner Charter Rate set forth on Exhibit C.
(c) Calculation of Cost. All calculations of Costs shall be pro-rata based upon hourly available usage of the Aircraft. For example, a pilot’s monthly salary shall be divided by the total number of flight hours available to be flown by said pilot, and then allocated as a Cost on a per hour basis.
4.6 Training. In accordance with Brim FAA approved training programs.
4.7 [Reserved.] | 729 |
agreement_21.md | 4.8 Geographical Limitations. Manager may not conduct any flight outside the United States, Canada and the Caribbean, without the prior written permission of Owner and evidence of insurance coverage for that flight in a form and content satisfactory to Owner in its sole discretion.(a) THE MANAGER AGREES NOT TO OPERATE OR LOCATE THE AIRCRAFT, OR ALLOW THE AIRCRAFT TO BE OPERATED OR LOCATED, IN OR OVER ANY AREA OF HOSTILITIES, ANY GEOGRAPHIC AREA WHICH IS NOT COVERED BY THE INSURANCE POLICIES REQUIRED BY THIS AGREEMENT, OR ANY COUNTRY OR JURISDICTION FOR WHICH EXPORTS OR TRANSACTIONS ARE SUBJECT TO SPECIFIC RESTRICTIONS UNDER ANY UNITED STATES EXPORT OR OTHER LAW OR UNITED NATIONS SECURITY COUNCIL DIRECTIVE, INCLUDING, WITHOUT LIMITATION, THE TRADING WITH THE ENEMY ACT, 50 U.S.C. APP. SECTIONS 1701 ET SEQ., AND THE EXPORT ADMINISTRATION ACT, 50 U.S.C. APP. SECTIONS 2401 ET SEQ. OR TO OTHERWISE VIOLATE, OR PERMIT THE VIOLATION OF, | 730 |
agreement_21.md | ET SEQ. OR TO OTHERWISE VIOLATE, OR PERMIT THE VIOLATION OF, SUCH LAWS OR DIRECTIVES. MANAGER ALSO AGREES TO PROHIBIT ANY NATIONAL OF SUCH RESTRICTED NATIONS FROM OPERATING THE AIRCRAFT.4.9 Compliance with Laws and Regulations. The Parties shall comply with all federal, state and local laws and executive orders and regulations issued pursuant thereto, including, without limitation, and to the extent applicable to this Agreement, all FARs, and any applicable regulations or laws of any other country or aviation authority having jurisdiction over the Aircraft or any operation of the Aircraft hereunder.4.10 Hazardous Materials. At all times during this lease, Manager shall maintain such permits necessary to carry any hazardous materials it may from time to time carry.4.11 Damage by Charter Customer. In the event that a customer generated by Manager damages the Aircraft, or any portion thereof, through its negligence or willful misconduct during a flight, Manager shall advise Owner of such | 731 |
agreement_21.md | or willful misconduct during a flight, Manager shall advise Owner of such damage, and Manager shall make good faith commercially reasonable efforts to collect from such customer the costs and expenses to repair such damage and upon collection of same will reimburse Owner for the documented costs necessary to repair such damage. In no event shall Manager or a customer generated by Manager be liable for normal wear and tear consistent with the anticipated use of the Aircraft. | 732 |
agreement_21.md | Owner Initials: \_\_\_ Manager Initials: \_\_\_\_\_ | 733 |
agreement_21.md | ARTICLE VINSURANCE
5.1 Aircraft Insurance Coverage. During the Term, Manager shall arrange for and procure, at Manager’s expense, insurance coverage, including without limitation the special provisions set forth below, under separate aviation insurance policies relating to the Aircraft ("Manager's Policies"). (a) All risk physical damage (hull) insurance, including war, hijacking and allied perils coverage, with respect to the Aircraft, insuring against any loss, theft or damage to the Aircraft, and extended coverage with respect to any engines or parts while removed from the Aircraft, in an amount not less than the Agreed Value defined on Exhibit A for each Aircraft, with a deductible not more than two and one-half percent (2.5%) of the Agreed Value. Such insurance shall provide that all losses shall be adjusted solely with Owner and be payable to Owner as the sole loss payee.
(b) Aircraft liability insurance, including war, hijacking and allied perils coverage, with respect to the Aircraft, insuring against liability for bodily injury to or death of persons, including passengers, and damage to or loss of property, in an amount not less than the minimum amount required by any governmental organization having jurisdiction over the territory where the aircraft is being operated and in no event less than $25,000,000 combined limit per occurrence (except with respect to war risks, hijacking and allied perils coverage, which shall be subject to a policy sub-limit in an amount not less than the minimum amount required by any governmental organization having jurisdiction over the territory where the aircraft is being operated and in no event less than $25,000,000 combined limit per occurrence and in the annual aggregate for bodily injury to or death of, and property damage to, third parties).
(c) All coverages required by this Section 5.1 shall include the following provisions: | 734 |
agreement_21.md | (c) All coverages required by this Section 5.1 shall include the following provisions:
(i) such insurance shall be primary without any right of contribution from any other insurance available to Manager or Owner;
(ii) such insurance shall contain a standard clause as to cross liability or severability of interests among insured parties providing that the insurance shall operate in all respects as if a separate policy had been issued covering each party insured except for limits of liability;
(iii) such insurance shall cover the operation of the Aircraft;
(iv) such insurance shall name Owner as the Named Insured and shall name Manager, its affiliates, successors and assigns and their respective officers, directors, members, managers, employees, agents and representatives (the "Manager Additional Insureds") as additional insureds;
Owner Initials: \_\_\_ Manager Initials: \_\_\_\_\_ | 735 |
agreement_21.md | (v) the geographic limits of such insurance shall be worldwide, except that in the case of war, hijacking and allied perils coverage, the coverage territory shall be subject to such excluded territories as is usual in the aviation insurance industry;
(vi) such insurance shall provide that not less than 30 calendar days’ advance written notice (except 10 days’ written notice for non-payment of premium and such shorter period as is customarily available under the war, hijacking and allied perils insurance) shall be given to Manager and Owner of cancellation by any party or adverse material change or reduction in the limits of coverage applicable to Manager or Owner under the policies;
(vii) such insurance shall contain an invalidation of interest/breach of warranty clause in favor of Owner providing that the coverage afforded to Owner will not be voided or invalidated by any act or neglect of any of the Manager Additional Insureds or any other insured party, for the avoidance of doubt the invalidation of interest/breach of warranty clause required by this provision shall apply to coverages required by Section 5.1(a) and 5.1(b) (subject to underwriter approval);
(viii) such insurance shall contain an invalidation of interest/breach of warranty clause in favor of Manager Additional Insureds, providing that the coverage afforded to such parties will not be voided or invalidated by any act or neglect of Owner or any other insured party (subject to underwriter approval);
(ix) such insurance shall contain a waiver of subrogation in favor of both Owner and Manager; and | 736 |
agreement_21.md | (ix) such insurance shall contain a waiver of subrogation in favor of both Owner and Manager; and
(x) such insurance will be issued by an insurer of recognized reputation and responsibility which is satisfactory in the reasonable discretion of the Owner. (d) Manager shall provide to Owner prior to the first operation of the Aircraft under Manager's Policies an insurance certificate reflecting the coverage required by the Agreement and thereafter, when it becomes available, a copy of the policy showing the applicable coverages. Manager shall provide Owner an insurance certificate upon renewal annually. 5.2 Additional Manager's Insurance Obligations. During the Term, Manager will maintain in full force and effect, at its own expense: (a) Workers' Compensation Coverage that provides applicable statutory benefits and Employer Liability Coverage in an amount of not less than $500,000, or such higher amount required by any applicable law, covering all employees of Manager;
(b) Premises General Liability insurance, including hangarkeeper's liability coverage and including premises liability coverage, in the amount of $25,000,000 per occurrence,
Owner Initials: \_\_\_ Manager Initials: \_\_\_\_\_ | 737 |
agreement_21.md | and products and completed operations coverage in the amount of $10,000,000 per occurrence and in the aggregate; and
(c) Fire and extended coverage insurance on Manager's and Owner’s personal property, trade fixtures and equipment located in or on the Flight Operations Office, in an amount equal to the full replacement value thereof. 5.3 Owner’s Insurance Obligations. During the Term, Owner will maintain in full force and effect, at its own expense: (a) Fire and extended coverage insurance on Owner’s personal property, trade fixtures and equipment located in or on the Base of Operations, in an amount equal to the full replacement value thereof. 5.4 Insurance Validity. In the event that any insurance on the Aircraft which is required by this Article V is invalidated for any reason, the Aircraft shall not be operated until such time as all such insurance is again valid and in full force and effect.
ARTICLE VIINDEPENDENT CONTRACTOR
6.1 Independent Contractor. Manager shall be deemed to be an independent contractor with respect to Owner. Manager shall be free to devote to its other business such portion of its entire time, energy, efforts and skill, as it sees fit. Manager shall have no mandatory duties, except those which are specifically set out in this Agreement. Nothing contained in this Agreement shall be regarded as creating any relationship (employer/employee, joint venture, partnership) between the Parties other than as specifically set forth herein. | 738 |
agreement_21.md | 6.2 No Agent Status. Except as specifically set forth in Section 2.3(c), Manager shall never at any time during the Term become the agent of Owner, and Owner shall not be responsible for the acts or omissions of Manager or its agents except as set forth herein. 6.3 No Employee Status. No employee of Manager will, at any time, represent himself or herself to be an employee of Owner and no employee of Owner will, at any time, represent himself or herself to be an employee of Manager.
Owner Initials: \_\_\_ Manager Initials: \_\_\_\_\_ | 739 |
agreement_21.md | ARTICLE VIIALTERATIONS
7.1 Alterations. Manager shall not have the right to alter, modify or make any additions or improvements to the Aircraft, other than those necessary to obtain and maintain FAA certification, to maintain the Aircraft in accordance with the terms hereof or to ensure that the Aircraft conforms to Manager's Manual, without prior written permission from Owner. All such alterations, modifications, additions and improvements as are so made shall be at the cost of the Owner and shall become the property of Owner and shall be subject to the terms of this Agreement. ARTICLE VIIITITLE 8.1 Title. Owner hereby represents and warrants that it is the registered owner of the Aircraft and has full right, power and authority and has secured all necessary consents to enter into this Agreement with Manager. It is expressly agreed and acknowledged that this Agreement is a lease and management contract, and that Manager acquires no ownership, title, property rights or interests in or to the Aircraft except those that are specifically set forth in this Agreement. | 740 |
agreement_21.md | ARTICLE IXRISK OF LOSS OR DAMAGE TO AIRCRAFT 9.1 Risk of Loss or Damage to Aircraft. Risk of loss or damage to the Aircraft shall at all times be borne by Manager. If, during the Term, the Aircraft is destroyed, lost or damaged beyond repair, this Agreement shall terminate immediately, unless otherwise agreed to by both Parties. ARTICLE XINDEMNIFICATION 10.1 Indemnification. Each Party to this Agreement hereby indemnifies and holds harmless the other Party and its respective officers, directors, managers, partners, employees, shareholders, members and affiliates from and against any claim, damage, loss or reasonable expense, including, without limitation, reasonable attorneys' fees, resulting from bodily injury or property damage to third parties caused by an occurrence and arising out of the ownership, maintenance or use of the Aircraft that results from the negligence or willful misconduct of such indemnifying Party (an "Indemnified Loss"); provided, however, that neither Party to this Agreement will be liable for any Indemnified Loss:
(a) to the extent that such loss is covered by the insurance policies described in Article V above (the "Policies"), or in the event the other Party fails to maintain the insurance coverages it is required to maintain pursuant to said Article V, such loss would have been covered under the required coverages had they been in effect;
Owner Initials: \_\_\_ Manager Initials: \_\_\_\_\_ | 741 |
agreement_21.md | (b) with respect to a loss covered by the Policies, to the extent that the amount of such loss exceeds the policy limits required by Article V above;
(c) with respect to a loss consisting of expenses incurred in connection with a loss covered in whole or in part by the Policies, to the extent that such expenses are not fully covered by the Policies; or
(d) to the extent of the comparative negligence or willful misconduct of the indemnified Party or its officers, directors, managers, partners, employees, shareholders, members and affiliates.
10.2 Indemnification by Manager. Manager will indemnify Owner for direct physical damage to the Aircraft proven to have been caused by Manager's gross negligence or willful misconduct ("Gross Negligence/Willful Misconduct Aircraft Damage"); provided, however, that Manager will not indemnify Owner for any Gross Negligence/Willful Misconduct Aircraft Damage: (a) to the extent that coverage for such damage is provided by Manager's Policies required to be maintained by Manager by Article V above; or | 742 |
agreement_21.md | (b) with respect to such damage for which coverage is provided by Manager's Policies, to the extent that the amount of such damage exceeds the agreed insured value specified in Article V above. If any Gross Negligence/Willful Misconduct Aircraft Damage is not covered by Manager's Policies solely because it is less than an applicable deductible amount set forth in Article V above, Manager will indemnify Owner for the amount of any such damage up to the amount of such deductible. 10.3 LIMITATION OF LIABILITY. EACH PARTY ACKNOWLEDGES AND AGREES THAT (A) THE PROCEEDS OF INSURANCE TO WHICH IT IS ENTITLED, (B) ITS RIGHTS TO INDEMNIFICATION FROM THE OTHER PARTY UNDER SECTION 10.1 (AND IN THE CASE OF OWNER, ITS RIGHTS TO INDEMNIFICATION UNDER SECTION 10.2) (AND IN THE CASE OF MANAGER, ITS RIGHTS TO INDEMNIFICATION UNDER SECTIONS 2.3, 2.8 AND 10.4), AND (C) ITS RIGHT TO DIRECT DAMAGES ARISING IN CONTRACT FROM A MATERIAL | 743 |
agreement_21.md | (C) ITS RIGHT TO DIRECT DAMAGES ARISING IN CONTRACT FROM A MATERIAL BREACH OF THE OTHER PARTY'S OBLIGATIONS UNDER THIS AGREEMENT ARE THE SOLE REMEDIES FOR ANY DAMAGE, LOSS OR EXPENSE ARISING OUT OF THIS AGREEMENT OR THE SERVICES PROVIDED HEREUNDER OR CONTEMPLATED HEREBY. OWNER WAIVES ALL RIGHTS OF RECOVERY AGAINST MANAGER AND MANAGER ADDITIONAL INSUREDS FOR ANY LOSS OR DAMAGE TO THE AIRCRAFT, EXCEPT AS SET FORTH IN SECTIONS 10.1 and 10.2 ABOVE. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 10.1, THIS SECTION 10.3 AND SECTION 10.4 BELOW, EACH PARTY WAIVES ANY RIGHT TO RECOVER ANY DAMAGE, LOSS OR EXPENSE ARISING OUT OF THIS AGREEMENT OR THE SERVICES PROVIDED HEREUNDER OR CONTEMPLATED HEREBY. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR, OR HAVE ANY DUTY FOR INDEMNIFICATION OR CONTRIBUTION TO THE OTHER PARTY FOR, ANY INDIRECT, SPECIAL, INCIDENTAL, | 744 |
agreement_21.md | Owner Initials: \_\_\_ Manager Initials: \_\_\_\_\_ | 745 |
agreement_21.md | CONSEQUENTIAL OR PUNITIVE DAMAGES, OR FOR ANY DAMAGES CONSISTING OF DAMAGES FOR LOSS OF USE, REVENUE, PROFIT, BUSINESS OPPORTUNITIES AND THE LIKE, EVEN IF THE PARTY HAD BEEN ADVISED, OR KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. 10.4 Failure of Insurance Policies. When any of the policies to be maintained by Manager pursuant to Section 5.3 above are utilized, any indemnification provided by Manager to Owner, any waiver of any claim and any agreements to be liable for damages set forth in this Article X shall not apply to the extent that such policies have failed to provide the insurance coverage required by Section 5.3, except in the event such failure arises from or is related to any action or inaction on the part of Owner. Furthermore, Manager agrees to indemnify Owner for any Indemnified Loss resulting from the failure of such policies to comply with the requirements of Section 5.3 above, except in the event such failure arises from or is related to any action or inaction on the part of Owner. | 746 |
agreement_21.md | 10.5 Survival. The provisions of this Article X will survive the termination or expiration of this Agreement. ARTICLE XIMISCELLANEOUS PROVISIONS 11.1 Entire Agreement. This Agreement constitutes the entire understanding between the Parties as of the Effective Date and supersedes all prior agreements between the Parties which concern the Aircraft. Any change, modification or amendment to this Agreement must be in writing signed by both Parties and must specifically state that it is intended to change, modify or amend this Agreement. 11.2 Notices. Any notice required or permitted under this Agreement shall be given in writing and shall be effective for all purposes if hand delivered to the Party designated below or if sent by (a) certified or registered United States mail, postage prepaid; (b) by expedited delivery service, either commercial or United States Postal Service, with proof of delivery; or (c) by facsimile (provided that such facsimile is confirmed by expedited delivery service or by mail in the manner previously described), addressed as follows: If to Manager: Brim Equipment Leasing, Inc.Attention: Julie Brim, PresidentPhysical Address: 455 Dead Indian Memorial Rd, Ashland, OR 97520Mailing Address: PO Box 3009, Ashland, OR 97520email: Julie@brimaviation.com with a copy to Wexford Capital LP – 411 West Putman Ave.Greenwich, CT 06830Attn: Legal
Owner Initials: \_\_\_ Manager Initials: \_\_\_\_\_ | 747 |
agreement_21.md | email: legal@wexford.com
If to Owner: Cobra Aviation Services LLCMark LaytonChief Financial Officer14201 Caliber Drive, Suite 300Oklahoma City, OK 73134Phone: 405.563-9961mlayton@mammothenergy.com
With a copy to: McAfee & Taft A Professional CorporationScott D. McCreary / John R. Chubbuck10th Floor, Two Leadership Square211 N RobinsonOklahoma City OK 73102-7103Phone: 405.235.9621Scott.mccreary@mcafeetaft.comjohn.chubbuck@mcafeetaft.com | 748 |
agreement_21.md | or to such other address and person as shall be designated from time to time by Manager or Owner, as the case may be, in a written notice to the other in the manner provided for in this Section 11.2. The notice shall be deemed to have been given at the time of delivery if hand delivered, or on the next business day after transmission if sent by confirmed facsimile, or in the case of registered or certified mail, on the third business day after deposit in the United States mail, or if by expedited delivery, upon the first attempted delivery on a business day. A Party receiving notice which does not comply with the technical requirements for notice under this Section 11.2 may elect to waive any deficiencies and treat the notice as having been properly given. 11.3 Compliance with Laws. Manager and Owner shall comply with all federal, state and local laws and executive orders and regulations issued pursuant thereto, including, without limitation, and to the extent applicable to this Agreement, all FARs, to the extent of their obligations under this Agreement. 11.4 Rights and Remedies. Manager and Owner’s rights and remedies with respect to any of the terms and conditions of this Agreement shall be cumulative and non-exclusive and shall be in addition to all other rights and remedies which either Party possesses at law or in equity except as otherwise provided in this Agreement. 11.5 Invalidity. In the event that any one or more of the provisions of this Agreement shall be determined to be invalid, unenforceable or illegal, such invalidity, unenforceability and illegality shall not affect any other provision of this Agreement, and this Agreement shall be construed as if such invalid, unenforceable or illegal provision had never been contained herein.
Owner Initials: \_\_\_ Manager Initials: \_\_\_\_\_ | 749 |
agreement_21.md | 11.6 Force Majeure. Each Party shall be relieved of its obligations hereunder (other than payment obligations) in the event and to the extent that the Party's performance is delayed or prevented by any cause reasonably beyond such Party's control, including, without limitation, acts of God, public enemies, war, civil disorder, fire, flood, explosion, labor disputes or strikes, or any acts or order of any governmental authority. 11.7 Waiver. No delay or omission in the exercise or enforcement of any right or remedy hereunder by either Party shall be construed as a waiver of such right or remedy. All remedies, rights, undertakings, obligations and agreements contained herein shall be cumulative and not mutually exclusive. 11.8 Assignment. Neither this Agreement nor any Party's interest herein shall be assignable to any other Party without the prior written consent of the other Party. This Agreement shall inure to the benefit of and be binding upon the Parties hereto, their heirs, representatives and successors. 11.9 Confidentiality. Manager and Owner shall not disclose to any third party (other than their respective employees, advisors and affiliates) in any manner information regarding the terms of this Agreement without the non-disclosing Party's prior written consent; provided, however, that neither Party shall be prohibited from making any disclosures to the FAA in connection with the certification process contemplated in Section 4.1 above or to the extent required by law. 11.10 Review of Records. Each Party shall permit the other, upon reasonable request, to review its accounting and other cost records relating to the Aircraft so the other Party can conduct an audit of such records as that other Party reasonably deems necessary. | 750 |
agreement_21.md | 11.11 Exhibits. Exhibits referred to herein are attached hereto and incorporated herein for all purposes. ARTICLE XIIAPPLICABLE LAW 12.1 Governing Law, Jurisdiction and Waiver of Jury Trial. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of Delaware. ANY LEGAL SUIT, ACTION OR PROCEEDING ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY SHALL BE INSTITUTED IN THE COURTS OF THE STATE OF DELAWARE OR, IF SUCH COURTS LACK SUBJECT MATTER JURISDICTION, THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA LOCATED IN THE STATE OF DELAWARE, AND EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING. SERVICE OF PROCESS, SUMMONS, NOTICE OR OTHER DOCUMENT IN ACCORDANCE WITH SECTION 11.2 SHALL BE EFFECTIVE SERVICE OF PROCESS FOR ANY SUIT,
Owner Initials: \_\_\_ Manager Initials: \_\_\_\_\_ | 751 |
agreement_21.md | ACTION OR OTHER PROCEEDING BROUGHT IN ANY SUCH COURT. THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR ANY PROCEEDING IN SUCH COURTS AND IRREVOCABLY WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. THE PARTIES HEREBY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY LITIGATION ARISING OUT OF, OR RELATING TO, THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. FINALLY, DUE TO THE COMMERCIAL NATURE OF THIS AGREEMENT AND THE COMPLEX AVIATION REGULATORY SCHEME, OWNER AND MANAGER EXPRESSLY WAIVE THE RIGHT TO A JURY TRIAL FOR ANY DISPUTES ARISING FROM THIS AGREEMENT.
[Signatures on Next Page]
Owner Initials: \_\_\_ Manager Initials: \_\_\_\_\_
---
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year first above written.
Manager: Owner:
Brim Equipment Leasing, Inc. Cobra Aviation Services LLC
By: /s/ Julie Brim By: /s/ Mark Layton Name: Julie Brim Name: Mark LaytonTitle: President Title: Chief Financial Officer | 752 |
agreement_21.md | EXHIBIT A
AIRCRAFT LISTING
One (1) McDonnell Douglas Helicopter model 600N aircraft bearing manufacturer’s serial number RN045 and United States Registration Number N745BW; and one (1) Rolls-Royce Corporation model 250-C47M aircraft engine bearing manufacturer’s serial number CAE-847831 (collectively the “N745BW Aircraft”)
Required Hull Insurance Amount
N745BW: $1,100,000
Charter Lease Rates
| | |
| --- | --- |
| | |
| Third Party Charter Lease Rate: | An Amount equal to the cost of Owner’s working capital plus 10% / Flight Hour. |
Owner Charter Lease Rate: $1 / Flight Hour | 753 |
agreement_21.md | EXHIBIT B
GROUND SUPPORT EQUIPMENT
| |
| --- |
| |
| | |
| SUPPORT EQUIPMENT | VIN / SERIAL NUMBER |
| 1987 BEALL FUEL TRAILER | 1BN1T2422HP182220 |
| 2001 FORD F250 | 1FTNW21FX1ED64143 |
| 2003 FORD F250 TRUCK | 1FTNX21F23EA61812 |
| 2005 CHEVY FUEL TRUCK | 1GBE4E3225F503817 |
| 2007 CHEVY FUEL TRUCK | 1GBE4E3257F416416 |
| 2007 FORD F650 FUEL TRUCK | 3FRNW65F77V418659 |
| 2011 FORD F450 | |
| 1984 KENWORTH BATCH TRUCK | 1XKWD29X1ES322866 |
| MISC HELICOPTER PARTS | |
| 300 GALLON FUEL TRAILER | 129697 |
| 6000 GALLON FUEL TRAILER | 1BN1T2730DP151070 |
| HELI WAGON 12'x12' | |
| HELI WAGON 12'x12' | |
| SILVER SUPPORT TRAILER | 4SMSP2433YS001577 |
| HELI - PLATFORM 14'X14' | |
| HELI - PLATFORM 14'X14' | |
| F650 Fuel Truck 600 gallon Tank | 3FRNW65Z85V109449 |
---
EXHIBIT C
OWNER CHARTER RATE
Owner Charter Rate: Manager’s hourly Costs of operating the Owner Charter plus 10% of such Costs. | 754 |
agreement_23.md | EX-10.2
3
c18992exv10w2.htm
AIRCRAFT LEASE AGREEMENT
exv10w2
#####
AIRCRAFT LEASE AGREEMENT
Effective September 20, 2007
Between
CapitalineFlight Services, LLC (“Lessor”)
And
US BioEnergy Corporation (“Lessee”)
Regarding
2007 Cessna T206H Turbo Stationair, Nav III
Manufacturer’s Serial No: T20608758
FAA Registration Mark: N2451A
1
--- | 755 |
agreement_23.md | **THIS AIRCRAFT LEASE AGREEMENT** (the “Agreement”) is entered into this 2nd day of October,
2007, between, Capitaline Flight Services, LLC a South Dakota limited liability company, with its
principal office in Brookings, South Dakota (“Lessor”); and US BioEnergy Corporation, a South
Dakota corporation, with its principal office in Inver Grove Heights, Minnesota (“Lessee”).
WHEREAS, Lessor wishes to lease on an hourly basis its Cessna T206H Turbo Stationair, Nav III,
Manufacturer’s Serial Number T20608758, Federal Aviation Administration (“FAA”) Registration Mark
N2451A, and the appliances, communications equipment, accessories, instruments and other items of
equipment installed thereon (the “Aircraft’) to Lessee, and Lessee wishes to lease the Aircraft
from Lessor;
NOW, THEREFORE, in consideration of and subject to the terms and conditions herein, Lessor and
Lessee agree as follows:
**1. LEASE; TERM**
a. Effective Date. This Agreement is effective as of September 20, 2007.
b. Lease Term. Lessee hereby agrees to lease the Aircraft on a non-exclusive hourly
basis from Lessor, and Lessor hereby agrees lo lease the Aircraft to Lessee, pursuant to the terns
and conditions in this Agreement. Lessor reserves the right of use of the Aircraft by Lessor or
other lessees of the Aircraft. This Agreement shall commence on the first date written above and
continue in full force until terminated by either party upon 30 day’s prior written notice or
earlier pursuant to Section 7, below. | 756 |
agreement_23.md | c. Availability and Delivery. The Aircraft shall be available to Lessee, and shall be
scheduled for use, on an as-needed and first-come, first-serve basis with respect to use by Lessor,
Lessee and other lessees of the Aircraft. In order to schedule the use of the Aircraft, Lessee
shall contact Lessor and specify the dates and times use of the Aircraft is requested. At such
time, Lessor shall indicate whether or not the Aircraft is available. Should the Aircraft not be
available at the requested time, Lessor may indicate alternative dates and times the Aircraft is
available to Lessee. Lessee shall not have the right to use the Aircraft for a period of time that
would exceed 7 consecutive days without the prior consent of Lessor. The home base of operation of
the Aircraft shall be Brookings, SD (“Base of Operations”).
**2. USE OF AIRCRAFT**
a. Permitted Use. Notwithstanding anything herein to the contrary, during the times
the Aircraft is leased to Lessee:
i. Operations. Lessee’s operations shall be conducted under Part 91 of the
Federal Aviation Regulations. In no event shall any revenue passengers or cargo be
permitted on board the Aircraft during any such flights. | 757 |
agreement_23.md | ii. Dry Lease. The parties intend that this Agreement shall constitute a “dry”
operating lease. During each usage by Lessee, Lessee shall have possession, command, and
operational control over the Aircraft, aircrew and maintenance; provided that during each
reserved use by Lessor or other lessee of the Aircraft, Lessor or such other lessee, as
applicable, shall have possession command and operational control of the Aircraft.
“Operational control” shall mean, consistent with 14 C.F.R. § 1.1 and FAA guidelines, the
exercise of authority over initiating, conducting, or terminating a flight. Lessee shall
2 | 758 |
agreement_23.md | exercise complete control over the phases of operation of the Aircraft requiring
aviation expertise for all flights under this Agreement.
iii. Flight Crew. Lessee shall be solely responsible for supplying a flight
crew for Lessee’s operations of the Aircraft, as Lessee’s expense. Lessee shall ensure that
all flight crews (1) are FAA certified and duly qualified to operate the Aircraft in
accordance with all applicable laws and regulations; and (2) meet the applicable
requirements of, and are qualified and approved under, Lessor’s insurance policies in
Section 8 of this Agreement.
iv. Pilot in Command. Lessor and Lessee acknowledge and agree that, contrary
provisions of Section 2 notwithstanding, (i) the pilot in command (“PIC”) of any flight, in
her or his sole discretion, my terminate the flight, refuse to commence the flight, or take
any other flight-related action which in her or his sole judgment is necessitated by
considerations of safety, (ii) the PIC of any flight shall have final and complete
authority to postpone or cancel the flight for any reason or condition which in his or her
judgment would compromise the safety of the flight, and (iii) no such action of the PIC
shall create or support any liability for loss, injury, damage, or delay to Lessor.
v. Security Precautions. Lessee shall at all times use reasonable care and
diligence to maintain the security and safety of the Aircraft and to abide by applicable
security regulations and recommendations of the FAA, Department of Transportation, or local
airport authorities. Lessee shall secure or hangar the Aircraft at any time it is to be
unattended by Lessee or Lessee’s crew. | 759 |
agreement_23.md | vi. Lessee and Lessor (or their authorized agents) shall execute certificates of
acceptance of delivery and acceptance of redelivery of the Aircraft prior to each use of
the Aircraft by Lessee and following redelivery of the Aircraft to Lessor after such use by
Lessee. Following each use by Lessee hereunder, the Aircraft shall be returned to the Base
of Operation by Lessee.
b. Compliance with Laws. Lessee shall not use or cause or permit the Aircraft to be
used in any way inconsistent with state, federal or international law or the law of any place to
which the Aircraft may go, or contrary to any manufacturer’s operation manuals and instructions, or
in violation of any airworthiness certificate, license or registration. Lessee shall not use or
cause or permit the Aircraft to be used in any way that would endanger the registration or
airworthiness of the Aircraft.
c. Compliance with Insurance. Lessee shall not operate the Aircraft or permit or
suffer the Aircraft to be operated in conflict with the terms of the insurance coverage pursuant to
Section 8 of this Agreement. Lessee shall abide by all geographical limitations of such insurance.
**3. RENT, TAXES AND PAYMENTS**
a. Rent. As rent for the lease of the Aircraft, the Lessee shall pay to the Lessor
the amounts set forth in Schedule 1 (“Rent”). Lessee will pay Rent to Lessor no later than the
15th day of the calendar month for the rental activity in the preceding month. | 760 |
agreement_23.md | b. Taxes. Lessee shall be responsible for any taxes (other than those based on
Lessor’s income), including but not limited to sales, use, embarkation or passenger departure
taxes, customer duties, charges or levies of the United States, any state or local government or
any
3 | 761 |
agreement_23.md | foreign government related to Lessee’s use, possession, or lease of the Aircraft (collectively
“taxes”). Except as otherwise specified in Schedule 1 or any applicable invoice, neither the Rent
nor any other payments to be made by Lessee under this Agreement includes the amount of any such
taxes which may be assessed or levied by any taxing jurisdictions as a result of the lease of the
Aircraft to Lessee, or the use of the Aircraft by Lessee. Lessee shall be responsible for, shall
indemnify and hold harmless Lessor against, and shall remit to Lessor all such Taxes together with
each payment of Rent at the time required by applicable taw.
c. Operating Costs. Lessee shall be responsible for all expenses related to Lessee’s
use of the Aircraft, including, without limitation, all necessary ground and flight operations
support such as charts, forms, aircraft cleaning (interior and exterior), lavatory service,
deicing, catering, and aircraft stocks (i.e. newspapers, beverages, snacks), all landing fees and
other Airport charges assessed or imposed away from the Base of Operations, all fuel, oil, and
lubricants, and all crew hiring costs and crew expenses. Lessee shall pay all such expenses
directly unless otherwise agreed to in advance by Lessor. To the extent Lessor pays for such
expenses, Lessor shall invoice Lessee for the expenses in conjunction with the invoices for the
Rent and Lessee will reimburse Lessor in accordance with Section 3(a).
d. Payments. All payments or reimbursements due by virtue of this Agreement shall be
made to the Lessor at such address or bank accounts as may be specified to Lessee by Lessor by
written notice from time to time.
**4. TITLE AND SECURITY** | 762 |
agreement_23.md | **4. TITLE AND SECURITY**
a. Title; No Liens. Title to the Aircraft and all equipment subject to this Agreement
is retained by Lessor at all times. Lessee may not pledge or encumber the Aircraft in any manner
whatsoever, nor permit any liens, other than liens arising by operation of law or liens solely
attributable to Lessor, to attach thereto, and Lessee shall promptly cause to be removed any such
lien which may be placed on the Aircraft as a result of Lessee’s action or inaction hereunder.
Except as set forth in the immediately subsequent paragraph (b), Lessor shall not permit any lien
or encumbrance of any kind whatsoever to be created or exist upon the Aircraft if such lien or
eucumbrance may or does interfere with Lessee’s quiet use and enjoyment of the Aircraft hereunder.
b. Security Interests. In the event that this Agreement or the Aircraft are subject to
a security agreement between Lessor and its lender, all rights of Lessee under this Agreement will
be subordinate to the rights of under such a security agreement. To the extent, if any, that this
Agreement constitutes chattel paper under the UCC in connection with such a security agreement, the
original of this Agreement shall be delivered to the lender upon demand as sectary for the
obligation of Lessor.
**5. REGISTRATION**
Lessee undertakes that at all times under this Agreement it shall not do or allow to be done
anything whereby the registration of the Aircraft with the FAA may be forfeited or imperiled.
**6. MAINTENANCE; COSTS OF OPERATION; NO ALTERATIONS** | 763 |
agreement_23.md | **6. MAINTENANCE; COSTS OF OPERATION; NO ALTERATIONS**
a. Maintenance. Lessor shall pay for costs of any repairs or maintenance of the
Aircraft required during the term associated with Lessee’s use, movement and operation of the
Aircraft, including, without limitation, all service, repairs, tests, and maintenance necessary to
4 | 764 |
agreement_23.md | maintain the Aircraft in accordance with FAA regulations, as amended from time to time;
provided, however, Lessee shall be responsible and pay for any maintenance and repairs to the
Aircraft which are the result of misuse of the Aircraft by Lessee or otherwise occasioned by the
negligence or willful misconduct of Lessee, its employees, and guests. Lessor shall have no
expense or liability for repair or maintenance delays and shall not be liable to Lessee for any
damage from loss of profit or loss of use of Aircraft, either before or after delivery of Aircraft
to Lessee. Lessee shall clean the interior of the Aircraft after each use by Lessee. Lessee shall
promptly notify Lessor of any damage or required maintenance or repair of the Aircraft or the
performance of any such repair and maintenance. | 765 |
agreement_23.md | b. Aircraft Documents. Lessor shall maintain and preserve, or cause to be maintained
and preserved, in the English language, all Aircraft Documents required by the FAA, the Aircraft
manufacturer and the manufacturers of all component parts thereof, and in a current, accurate, and
complete manner and shall be available at all reasonable times for examination and inspection by
Lessee. For purposes of this Agreement, “Aircraft Documents” means all records and documents (i)
required by the applicable law or any manufacturer’s warranty or any applicable maintenance service
plan to be maintained with respect to the Aircraft (ii) customarily maintained with respect to
aircraft of the same category and class as the Aircraft, or (iii) otherwise associated with the
Aircraft, including without limitation, flight records, maintenance and inspection records,
modification and repair records, overhaul records, historical records, manuals, logbooks,
authorizations, and drawings. Notwithstanding the foregoing, at any times that Aircraft is in the
possession, command and control of Lessee, Lessee shall complete and maintain all Aircraft
Documents as required by applicable laws and regulations in connection with such lease and use of
the Aircraft by Lessee. All Aircraft Documents shall remain the sole property of Lessor.
c. No Alterations. Lessee shall not alter, modify, or make additions or improvements
to the Aircraft without the prior written permission of Lessor, and any such alterations,
modifications, additions or improvements shall immediately become the property of Lessor. | 766 |
agreement_23.md | d. Maior Maintenance Events. Notwithstanding anything to the contrary in this Section
6, Lessee shall be entitled to reimbursement from Lessor for all amounts paid directly to third
parties for, or may request that Lessor directly pay, any invoice received in connection with, any
unusual, non-routine, or extraordinary maintenance or repairs, except when the result of misuse or
occasioned by the negligence or willful misconduct of Lessee, its employees or guests, as provided
in paragraph 6.a. above, including, without limitation, in each case, costs of engine overhauls and
costs associated with routine schedule maintenance and inspections. Lessee shall not contract for
or incur any such expense without the prior approval of Lessor.
**7. TERMINATION**
a. By Lessor. Lessor may immediately terminate this Agreement upon the occurrence of
any one of the following:
i. In the event Lessee fails to pay Rent or other sums due under this Agreement, and
such failure is not corrected within 15 days after receipt by Lessee of written notice by
Lessor, or
ii. In the event Lessee operates the Aircraft in a manner not permitted by Lessor’s
insurance or FAA rules or regulations, upon written notice to Lessee; or
5 | 767 |
agreement_23.md | iii. In the event Lessee fails to observe or fulfill any term, condition and/or
provision of this Agreement other than those specified in Sections 7(a)(i) or 7(a)(ii) and
such failure is not corrected within 30 days after receipt by Lessee of written notice from
Lessor.
b. By Lessee. Lessee may immediately terminate this Agreement in the event Lessor
fails to observe or fulfill any term, condition and/or provision of this Agreement and such failure
is not corrected within 30 days after written notice by Lessee.
c. Rights Upon Termination. Upon the termination of this Agreement, rights of the
Lessee as to the Aircraft pursuant to this Agreement shall immediately cease and terminate. If the
Lessor terminates this Agreement as provided in this Section 7, Lessee shall notwithstanding such
termination, be liable to the Lessor for any arrears of Rent or other amounts due under this
Agreement. The provisions of Sections 4, 5, 6 and 8 shall survive the termination of this
Agreement.
**8. INSURANCE AND INDEMNIFICATION**
a. Insurance. Lessor shall provide insurance coverage related to Lessee’s possession,
use, maintenance and operations of the Aircraift, under policies in form and substance and with
insurers reasonably satisfactory to Lessee, as follows: | 768 |
agreement_23.md | i. Liability. The policies will insure liability for personal injuries, death
or property damages, arising or occasioned in any manner by the acts or omissions of
Lessor, Lessee, or others with respect to the custody, operation or use of or with respect
to said Aircraft in an amount not less than $1,000,000 per occurrence relative to
the personal injuries and/or death, and relative to the property damage of others, all set
within a single limit of coverage. Lessee shall be an additional named insured on said
policies.
ii. Hull Insurance. The policies will insure against the loss or damage from
any cause or causes to the Aircraft for not less than $500,000 unless a different value is
agreed upon in writing between Lessee and Lessor. The policies shall be for the benefit of
Lessor with Lessor named as the sole loss payee. Any policies insuring against the loss or
damage to the Aircraft will provide a waiver of subrogation in favor of Lessee. Lessee
shall be responsible and shall reimburse Lessor for the amount of the deductible, if any,
if the damage to said Aircraft is incurred during Lessee’s use hereunder. Such deductible
will not exceed $5,000 in motion or $2,000 not in motion unless agreed upon in writing
between Lessee and Lessor. Such policies need not include coverage against war risks. | 769 |
agreement_23.md | iii. Conditions. The policies shall also specifically grant approval for all
Lessee’s pilots that meet the requirements of the policies, including, without limitation,
pilots approved by the insurer and pilots that meet the requirements of any “open pilot
warranty” under the policy. Such insurance under this Section 8 shall be primary, without
any right of contribution from Lessee or any insurance maintained by Lessee. Lessor’s
insurance shall provide that any cancellation or substantive change in coverage shall not
be effective as to Lessee without written notice to Lessee from Lessor’s insurer at least
10 days for cancellation due to nonpayment, 7 days for cancellation due to war risks, or
otherwise 30 days for any other change or cancellation.
iv. Certificates of Insurance. Lessor shall deliver to Lessee a certificate
of insurance upon executive of this Agreement, as well as additional certificates from
time-to-
6 | 770 |
agreement_23.md | time as requested by Lessee, but not less often than annually. Such certificate shall
include evidence of premiums paid and all policy amendments or endorsements necessary to
satisfy the requirements of this Section 8.
b. Indemnification by Lessee. Lessee agrees to indemnify, defend, and hold Lessor and
all other users of the Aircraft harmless from (i) any and all fines, citations, forfeitures, or
penalties of any kind imposed by the FAA or any other governmental entity, and (ii) any loss,
damage, cost, expense, claim, or liability whatsoever, including attorney fees and related costs,
arising out of operation, use, or possession of the Aircraft by Lessee during the term of this
Agreement, except to the extent arising from the negligence or willful misconduct by Lessor or
other users, and except to the extent of insurance proceeds received by Lessor pursuant to the
insurance policies in Section 8a, to which the waiver of subrogation may apply.
c. Indemnification by Lessor. Lessor agrees to indemnify, defend, and hold Lessee
harmless from any and all fines, citations, forfeitures, or penalties of any kind imposed by the
FAA or any other governmental entity arising out of the operation, use, or possession of the
Aircraft by Lessor or other users, except to the extent arising out of the negligence or willful
misconduct of Lessee.
d. Additional Coverage. Lessee shall be solely responsible for obtaining any
insurance coverages desired on behalf of Lessee in excess of or in addition to the insurance
maintained by and on behalf of Lessor as provided herein.
**9. REPRESENTATIONS AND WARRANTIES / DISCLAIMER** | 771 |
agreement_23.md | **9. REPRESENTATIONS AND WARRANTIES / DISCLAIMER**
a. By Lessor. Lessor represents and warrants to Lessee that Lessor has full authority
to enter into and fulfill this Agreement and has taken all steps and has done all acts required by
applicable law to permit Lessor to enter into and fulfill this Agreement, and upon execution, this
Agreement shall become the legal, valid and binding obligation of Lessor, enforceable in accordance
with its terms.
b. By Lessee. Lessee represents and warrants to Lessor that:
i. Lessee is not and shall not be bound by any other agreements, restrictions, or
obligations which do or would in any way interfere with or be inconsistent with or be
violated by this Agreement, nor shall Lessee assume any such obligations or restrictions,
which do or would in any way interfere with or be inconsistent with or be violated by this
Agreement.
ii. Lessee has full authority to enter into and fulfill this Agreement and has taken
all steps and has done all acts required by applicable law to permit Lessee to enter into
and fulfill this Agreement and that upon execution, this Agreement shall become the legal,
valid and binding obligation of Lessee, enforceable in accordance with its terms. | 772 |
agreement_23.md | c. Disclaimer; Limitation of Liability. EXCEPT AS EXPRESSLY STATED TO THE CONTRARY
HEREIN, THE AIRCRAFT IS BEING LEASED BY LESSOR TO THE LESSEE HEREUNDER ON A COMPLETELY “AS IS”,
“WHERE IS”, BASIS. EACH ACCEPTANCE AND USE BY LESSEE OF THE AIRCRAFT UNDER THIS LEASE SHALL
CONSTITUTE AN ACKNOWLEDGEMENT BY LESSEE OF ITS INSPECTION OF THE AIRCRAFT AND THAT THE AIRCRAFT IS
IN ACCEPTABLE CONDITION FOR LESSEE’S USE AND OPERATION UNDER THIS LEASE. THE WARRANTIES AND
7 | 773 |
agreement_23.md | REPRESENTATIONS SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND IN LIEU OF, AND OWNER DISCLAIMS
AND OPERATOR WAIVES, ALL OTHER REPRESENTATIONS OR WARRANTIES OF EVERY KIND WHATSOEVER, WHETHER
EXPRESS OR IMPLIED OR ARISING FROM A COURSE OF PERFORMANCE OR DEALING OR USAGE OF TRADE, INCLUDING,
WITHOUT LIMITATION, REPRESENTATIONS OF AND WARRANTIES, WITH RESPECT TO THE AIRCRAFT, OF
AIRWORTHINESS, VALUE, CONDITION, DESIGN, MERCHANTABILITY, COMPLIANCE WITH SPECIFICATIONS,
CONSTRUCTION AND CONDITION, OPERATION, FITNESS FOR A PARTICULAR USE, ABSENCE OF LATENT AND OTHER
DEFECTS WHETHER OR NOT DISCOVERABLE, ABSENCE OF ANY INFRINGEMENT OF ANY PATENT, TRADEMARK OR
COPYRIGHT, AND QUALITY OF MATERIALS OR WORKMANSHIP. IN NO EVENT SHALL EITHER PARTY TO THIS
AGREEMENT BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND
WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING FROM LOSS OF USE, LOSS OF REVENUE OR
PROFIT.
**10. NOTICES**
All notices or other communications required under this Agreement shall be in writing and
shall be effective when delivered personally or deposited in the mail, postage prepaid, and
addressed to the parties at their respective addresses first written above, unless by such notice a
different party or address shall have been designated in writing.
**11. MISCELLANEOUS**
a. Entire Agreement; Amendments. This Agreement constitutes the entire agreement of
the parties as of the date hereof and supersedes all prior or independent, oral or written
agreements, understandings, statements, representations, commitments, promises and warranties made
with respect to the subject matter of this Agreement. This Agreement may not be amended except in a
writing signed by all parties. | 774 |
agreement_23.md | b. Severability. Any provision of this Agreement which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions hereof, and any such
prohibitions or unenforceability in any jurisdiction. To the extent permitted by applicable law,
each of Lessor and Lessee hereby waives any provision of applicable law which renders any provision
hereof prohibited or unenforceable in any respect.
c. No Assignment. Neither party may assign its fights or obligations under this
Agreement without the prior written permission of the other; provided however Lessor may assign all
of Lessor’s rights and obligations under this Agreement in connection with the sale or other
transfer of the ownership of the Aircraft, in which case, Lessor shall be relieved of an from any
liability with respect to the obligations and covenants of Lessor contained in this Agreement
arising out of any act or occurrence occurring after the date of such sale or transfer, so long as
transferee shall assume and agree to carry out the covenants and obligations of Lessor under this
Agreement.
d. Further Assurances. The parties hereto agree to cooperate with each other in
effectuating this Agreement, and, at the reasonable request of the other party, to execute and
deliver such further documents or instruments and take such further actions as shall reasonably be
requested in order to carry out the proposes of this Agreement.
8 | 775 |
agreement_23.md | e. No Waiver. Neither party shall be deemed to have waived any breach by the other
party of any provision of this Agreement unless it expressly does so in writing. If either patty
shall expressly waive any right hereunder, such waiver shall not be construed as a continuing
waiver of other rights under the same or other provisions of this Agreement.
f. Force Majeure. Either party shall be relieved of its obligations hereunder if the
performance hereof is delayed or prevented or interrupted by any cause beyond its reasonable
control, including but not limited to, acts of God, public enemies, war, civil disorder, fire,
flood, explosion, labor disputes or strikes, or any acts or orders of any governmental authority.
g. Attorneys Fees. In the event any action or proceeding is initiated to enforce any
term or provision of this Agreement, then the prevailing party in such action or proceeding shall
be entitled to recover, in addition to all other rights and remedies available in law and in
equity, reasonable attorney fees and expenses incurred in connection therewith.
**12. GOVERNING LAW**
This Agreement shall be governed by and interpreted in accordance with the laws of the State of
South Dakota (excluding its choice of law rules) and the United States of America.
**13. TRUTH IN LEASING**
**TRUTH IN LEASING STATEMENT UNDER SECTION 91.23 OF THE FEDERAL AVIATION REGULATIONS.**
a. LESSEE WILL CONTINUE AT ALL TIMES UNDER THIS LEASE TO MAINTAIN AND
INSPECT THE AIRCRAFT UNDER FAR PART 91 FOR ALL OPERATIONS TO BE CONDUCTED UNDER THIS LEASE. | 776 |
agreement_23.md | b. LESSEE AGREES, CERTIFIES AND KNOWINGLY ACKNOWLEDGES THAT WHEN THE
AIRCRAFT IS OPERATED UNDER THIS AGREEMENT, LESSEE SHALL BE KNOWN AS, CONSIDERED, AND SHALL
IN FACT BE THE OPERATOR OF THAT AIRCRAFT. LESSEE IS RESPONSIBLE FOR OPERATIONAL CONTROL OF
THE AIRCRAFT UNDER THIS LEASE.
c. THE PARTIES UNDERSTAND THAT AN EXPLANATION OF FACTORS BEARING ON
OPERATIONAL CONTROL AND PERTINENT FEDERAL AVIATION REGULATIONS CAN BE OBTAINED FROM THE
NEAREST FAA FLIGHT STANDARDS DISTRICT OFFICE.
**LESSEE HEREBY ACKNOLWEDGES THIS TRUTH IN LEASING STATEMENT AND THAT LESSEE UNDERSTANDS THE
RESPONSIBILITIES FOR COMPLIANCE WITH APPLICABLE FEDERAL REGULATIONS.**
| | | | | |
|
Signature of Lessee: | | /s/
Gregory S. Schlicht | | |
|
| | | | |
| | | | | |
| Printed
Name of Lessee: | | Gregory S. Schlicht | | |
|
| | | | |
9 | 777 |
agreement_23.md | IN WITNESS WHEREOF, the parties have entered into this Aircraft Lease Agreement on the date first
written above.
| | | | | |
| LESSOR:
| | | | LESSEE: |
| | | | | |
| Capitaline Flight Services, LLC
| | | | US BioEnergy Corporation |
| | | | | |
| /s/ Steven P. Myers
| | | | /s/ Gregory S. Schlicht |
|
| | | | |
| By: Steven P. Myers
| | | | By: Gregory S. Schlicht |
| Is: President
| | | | Its: Vice President, General
Counsel and Corporate Secretary |
10
---
#####
Schedule 1
To Aircraft Lease Agreement dated October 2, 2007
**Lease Payment**
Lessee will pay monthly installments that equal:
| | | | | |
| Base Monthly Fee | | $ | 5,000.00 | |
| Hourly Charge for Use of Aircraft: | | $ | 125.00 | |
Payments will be made on or before the 15th of each month.
11 | 778 |
agreement_24.md | EX-10.27
10
v57988a3exv10w27.htm
EX-10.27
exv10w27
EXHIBIT 10.27
CONFIDENTIAL TREATMENT
REQUESTED PURSUANT TO RULE 406
Execution Form
**DATED 5****TH** **NOVEMBER 2010**
**THE SELLERS LISTED IN SCHEDULE 1 HERETO
and
THE PURCHASERS LISTED IN SCHEDULE 1 HERETO**
**AIRCRAFT SALE AND PURCHASE AGREEMENT**
--- | 779 |
agreement_24.md | **CONTENTS**
| | | | |
| **Clause** | | **Page** | | 780 |
agreement_24.md | | 1. Interpretation
| | | 1 |
| 2. Representations and Warranties
| | | 1 |
| 3. Agreement to Sell and Purchase
| | | 2 |
| 4. Conditions Precedent
| | | 4 |
| 5. Purchase Price
| | | 6 |
| 6. Invoice
| | | 9 |
| 7. Delivery
| | | 10 |
| 8. Condition of Aircraft
| | | 11 |
| 9. Manufacturer’s Warranties
| | | 12 |
| 10. Registration Fees
| | | 13 |
| 11. [\*]
| | | 13 |
| 12. Further Provisions
| | | 15 |
| 13. Law and Jurisdiction
| | | 18 |
| 14. Brokers and Other Third Parties
| | | 20 |
| Schedule 1 Sellers and Related Aircraft
| | | 23 |
| Schedule 2 Lease Documents
| | | 25 |
| Schedule 3 Definitions
| | | 29 |
| Schedule 4 Conditions Precedent
| | | 34 |
| Part A Seller Conditions Precedent
| | | 34 |
| Part B Purchaser Conditions Precedent
| | | 35 |
| Schedule 5 Representations and Warranties
| | | 37 |
| Part A Seller’s Representations and Warranties
| | | 37 |
| Part B Purchaser’s Representations and Warranties | 781 |
agreement_24.md | | | | 37 |
| Part B Purchaser’s Representations and Warranties
| | | 40 |
| Schedule 6 Confirmatory Bill of Sale
| | | 41 |
| Schedule 7 Acceptance Certificate
| | | 42 |
| Schedule 8 Form of Invoice
| | | 43 | | 782 |
agreement_24.md | | | | |
| --- | --- | --- |
| | | |
| \* | | Confidential material omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment. | | 783 |
agreement_24.md | **THIS AGREEMENT** is made on 5th November 2010
**B****ETWEEN:**
| | | |
| --- | --- | --- |
| (1) | | **THE SELLERS LISTED IN SCHEDULE 1 HERETO**; and |
| |
| (2) | | **THE PURCHASERS LISTED IN SCHEDULE 1 HERETO**. |
**IT IS AGREED** as follows
| | | |
| --- | --- | --- |
| 1. | | **INTERPRETATION** |
| |
| 1.1 | | **Definitions** |
| |
| | | In this Agreement capitalised words and expressions have the meaning specified in Schedule
3, except where the context otherwise requires. |
| |
| 1.2 | | **Construction** |
| |
| | | Headings are to be ignored in construing this Agreement and unless the contrary intention is
stated, a reference to: | | 784 |
agreement_24.md | | | | | |
| --- | --- | --- | --- |
| | 1.2.1 | | any “Seller”, any “Purchaser” or any other Person includes, without prejudice
to the provisions of this Agreement restricting transfer or assignment, any permitted
successor or assignee; |
| |
| | 1.2.2 | | words importing the plural shall include the singular and vice versa; |
| |
| | 1.2.3 | | any document, other than the Lease Documents, shall include that document as
amended, novated, assigned or supplemented; |
| |
| | 1.2.4 | | a Clause or a Schedule is a reference to a clause of or a schedule to this
Agreement; and |
| |
| | 1.2.5 | | any Law, or to any specified provision of any Law, is a reference to such Law
or provision as amended, substituted or re-enacted. | | 785 |
agreement_24.md | | | | |
| --- | --- | --- |
| 2. | | **REPRESENTATIONS AND WARRANTIES** |
| |
| 2.1 | | **Seller Representations and Warranties** |
| |
| | | The relevant Seller in respect of each Aircraft represents and warrants (in respect of
itself only) to the relevant Purchaser in respect of such Aircraft that the statements
contained in Schedule 5, Part A are at the date hereof, and on each applicable Delivery Date
will be (by reference to the facts and circumstances then subsisting), true and accurate.
The relevant Seller acknowledges and agrees that the relevant Purchaser has entered into
this Agreement in reliance on the truth and accuracy of the relevant Seller’s
representations and warranties under this Agreement. |
| |
| 2.2 | | **Purchaser Representations and Warranties** |
| |
| | | The relevant Purchaser in respect of each Aircraft represents and warrants (in respect of
itself only) to the relevant Seller in respect of such Aircraft that the statements
contained in Schedule 5, Part B are at the date hereof, and on each applicable Delivery Date
will be (by reference to the facts and circumstances then subsisting), true and accurate.
The relevant |
- 1 - | 786 |
agreement_24.md | | | | |
| --- | --- | --- |
| | | Purchaser acknowledges and agrees that the relevant Seller has entered into this Agreement
in reliance on the truth and accuracy of the Purchaser’s representations and warranties
under this Agreement. |
| |
| 3. | | **AGREEMENT TO SELL AND PURCHASE** |
| |
| 3.1 | | **Agreement** |
| |
| | | Subject to and in accordance with the provisions of this Agreement: | | 787 |
agreement_24.md | | | | | |
| --- | --- | --- | --- |
| | 3.1.1 | | the Seller of each Aircraft agrees to sell such Aircraft to the relevant
Purchaser of such Aircraft, and such Purchaser agrees to purchase such Aircraft from
such Seller in an “as is, where is” condition; |
| |
| | 3.1.2 | | the Seller of each Aircraft shall pass to the relevant Purchaser on the
applicable Delivery Date full legal and beneficial and good and marketable title to
such Aircraft with full title guarantee (except in relation to Aircraft No. 3, in
respect of which, the provisions of Clause 3.7 apply), subject in each case to the
Novated Lease and Permitted Liens but free and clear of all other Security Interests.
Title to each such Aircraft shall pass to the relevant Purchaser in accordance with
Clause 7.1 (*Delivery*); and |
| |
| | 3.1.3 | | It is the intention of the Sellers and the Purchasers that
Aircraft No.5 shall
be the first Aircraft sold by the relevant Seller to the relevant Purchaser under this
Agreement and if such sale is not consummated by the Final Delivery Date, then unless
otherwise agreed by the parties to this Agreement, the relevant Seller shall not be
obliged to sell any Aircraft to the relevant Purchaser and the relevant Purchaser shall
not be obliged to purchase any such Aircraft from the relevant Seller under this
Agreement. | | 788 |
agreement_24.md | | | | |
| --- | --- | --- |
| 3.2 | | **Registration** |
| |
| | | On or before the applicable Delivery Date in respect of each Aircraft, the Seller of such
Aircraft shall deliver, or procure that the relevant Lessee delivers, to the Air Authority
such documents as are necessary to instruct the Air Authority to record, to the extent
permitted by law, the relevant Purchaser or any Purchaser Nominee which is the owner or
lessor of such Aircraft as the new owner or lessor of such Aircraft in the aircraft register
maintained by the Air Authority. |
| |
| 3.3 | | **Security Interests** |
| |
| | | Each Aircraft shall as of the applicable Delivery Date be free and clear of all Security
Interests other than the Novated Lease and Permitted Liens. |
| |
| 3.4 | | **Passage of Title & Risk** |
| |
| | | Risk of loss or destruction of any Aircraft shall pass to the relevant Purchaser upon
Delivery in respect of such Aircraft. |
| |
| 3.5 | | **Damage before Delivery** |
| |
| | | If before Delivery in respect of any of Aircraft No. 1, Aircraft No. 2, Aircraft No. 3 or
Aircraft No. 4 , such Aircraft suffers damage which does not constitute an Event of Loss but
for which |
- 2 - | 789 |
agreement_24.md | | | | |
| --- | --- | --- |
| | | the likely cost of repair would exceed
[\*] or if before Delivery, Aircraft No.5
suffers damage which does not constitute an Event of Loss but for which the likely cost of
repair would exceed [\*], then: | | 790 |
agreement_24.md | | | | | |
| --- | --- | --- | --- |
| | 3.5.1 | | the relevant Seller shall promptly notify the relevant Purchaser of such
damage and whether in the relevant Seller’s view such damage can be repaired prior to
the applicable Scheduled Closing Date or any other date as agreed between the parties; |
| |
| | 3.5.2 | | the relevant Purchaser shall in light of the relevant Seller’s notice, notify
the relevant Seller whether the relevant Purchaser is prepared to proceed subject to
the damage being repaired to the relevant Purchaser’s satisfaction prior to the
applicable Scheduled Closing Date or any other date as agreed between the parties. If
the relevant Purchaser is prepared to proceed on the basis of the repair, the relevant
Seller shall procure the timely repair to the relevant Purchaser’s reasonable
satisfaction. However if (i) the repair is not so completed and the relevant Aircraft
is not delivered to the relevant Purchaser on or before the applicable Scheduled
Closing Date or any other date as agreed between the parties or (ii) the relevant
Purchaser notifies the relevant Seller in writing that the relevant Purchaser is not
prepared to proceed on the basis of the repair, the relevant Seller shall refund the
relevant Deposit plus interest in accordance with the provisions of Clause 5.2.2 to the
relevant Purchaser within three (3) Business Days from the date of notice by such
Purchaser, then none of the parties to this Agreement shall have any further obligation
or liability with respect to such Aircraft under this Agreement to any of the other
parties to this Agreement other than as set out in Clause 12.8 and Clause 4.3. | | 791 |
agreement_24.md | | | | |
| --- | --- | --- |
| 3.6 | | **Event of Loss before Delivery** |
| |
| | | If before Delivery of any Aircraft such Aircraft suffers an Event of Loss, then with effect
from the date of such Event of Loss the rights and obligations of the parties hereunder in
respect of such Aircraft shall be discharged so that no party shall be liable to any other
party in respect of such Aircraft save that the relevant Seller shall refund the relevant
Deposit plus interest in accordance with the provisions of Clause 5.2.2 to the relevant
Purchaser within three (3) Business Days from the relevant Seller becoming aware of the
occurrence of such Event of Loss, and other than as set out in Clause 12.8 and Clause 4.3. |
| |
| 3.7 | | **Transfer Arrangements relating to Aircraft No. 3** |
| | | | |
| --- | --- | --- | --- |
| | 3.7.1 | | GECAS has advised the Parent Purchaser that as regards Aircraft No. 3: |
| |
| | | | **[\*]** |
| | | |
| --- | --- | --- |
| | | |
| \* | | Confidential material omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment. |
- 3 - | 792 |
agreement_24.md | | | | | |
| --- | --- | --- | --- |
| | 3.7.2 | | [\*] |
| | | |
| --- | --- | --- |
| 4. | | **CONDITIONS PRECEDENT** |
| |
| 4.1 | | **Seller Conditions** | | 793 |
agreement_24.md | | | | | |
| --- | --- | --- | --- |
| | 4.1.1 | | The obligation of the Seller of each Aircraft to sell such Aircraft to the
relevant Purchaser shall be subject to fulfilment of each of Seller Conditions
Precedent applicable to such Aircraft on or prior to the applicable Delivery Date
(except to the extent that such Seller agrees in writing in its absolute discretion to
waive or defer any such condition). |
| |
| | 4.1.2 | | The Seller Conditions Precedent have been inserted for the benefit of each
Seller and may, in respect of any Aircraft, be waived in writing, in whole or in part
and with or without conditions, by the Seller of such Aircraft without prejudicing the
right of such Seller to receive fulfilment of such conditions, in whole or in part, at
any later time. |
| |
| | 4.1.3 | | If any of Seller Conditions Precedent in respect of an Aircraft remain
outstanding on the applicable Final Delivery Date and are not waived or deferred in
writing by the Seller of such Aircraft, such Seller may at any time after 5pm in London
on the applicable Final Delivery Date terminate the obligation of such Seller to sell
such Aircraft to the relevant Purchaser by notice to the relevant Purchaser, whereupon
none of the parties to this Agreement shall have any further obligation or liability
with respect to such Aircraft under this Agreement to any of the other parties to this
Agreement save that the relevant Seller shall refund the relevant Deposit plus interest
in accordance with the provisions of Clause 5.2.2 to the relevant Purchaser within
three (3) Business Days from the date of such notice by such Purchaser, and other than | 794 |
agreement_24.md | three (3) Business Days from the date of such notice by such Purchaser, and other than
as set out in Clause 12.8 and Clause 4.3. | | 795 |
agreement_24.md | | | | |
| --- | --- | --- |
| 4.2 | | **Purchaser Conditions** |
| | | | |
| --- | --- | --- | --- |
| | 4.2.1 | | The obligation of the Purchaser of each Aircraft to purchase such Aircraft
shall be subject to fulfilment of each of Purchaser Conditions Precedent applicable to
such Aircraft on or prior to the applicable Delivery Date (except to the extent that
such Purchaser agrees in writing in its absolute discretion to waive or defer any such
condition).
|
| | | |
| --- | --- | --- |
| | | |
| \* | | Confidential material omitted and filed
separately with the Securities and Exchange Commission pursuant to a request
for confidential treatment. |
- 4 - | 796 |
agreement_24.md | | | | | |
| --- | --- | --- | --- |
| | 4.2.2 | | The Purchaser Conditions Precedent have been inserted for the benefit of each
Purchaser and may, in respect of any Aircraft, be waived in writing, in whole or in
part and with or without conditions, by the Purchaser of such Aircraft without
prejudicing the right of such Purchaser to receive fulfilment of such conditions, in
whole or in part, at any later time. |
| |
| | 4.2.3 | | If any of the Purchaser Conditions Precedent in respect of an Aircraft remain
outstanding on the applicable Final Delivery Date and prior to payment of the Purchase
Price and are not waived or deferred in writing by the Purchaser of such Aircraft, such
Purchaser may at any time after 5pm in London on the applicable Final Delivery Date
terminate the obligation of such Purchaser to purchase such Aircraft from the relevant
Seller by notice to the relevant Seller, whereupon none of the parties to this
Agreement shall have any further obligation or liability with respect to such Aircraft
under this Agreement to any of the other parties to this Agreement save that the
relevant Seller shall refund the relevant Deposit plus interest in accordance with the
provisions of Clause 5.2.2 to the relevant Purchaser within three (3) Business Days
from the date of such notice by such Purchaser, and other than as set out in Clause
12.8 and Clause 4.3. | | 797 |
agreement_24.md | | | | |
| --- | --- | --- |
| 4.3 | | **Breach** |
| |
| | | If at any time the relevant Purchaser, GECAS or any affiliate of GECAS or any Seller
wilfully breaches or all part of this Agreement or any Transaction Document or any Other
Agreement, GECAS and the Sellers (in the case of a breach by the relevant Purchaser) or the
relevant Purchaser (in the case of a breach by GECAS, any affiliate of GECAS or any Seller)
shall be entitled by notice in writing to the defaulting party to terminate this Agreement
in its entirety in relation to Aircraft which then remain unsold, whereupon none of the
parties to this Agreement shall have any further obligation or liability hereunder save that
if the relevant termination notice is issued by the relevant Purchaser, the relevant Seller
shall refund the relevant Deposit(s) plus interest in accordance with the provisions of
Clause 5.2.2 to such Purchaser within three (3) Business Days from the date of the relevant
notice of termination. |
| |
| 4.4 | | **Transaction Fee Reimbursement** | | 798 |
agreement_24.md | | | | | |
| --- | --- | --- | --- |
| | 4.4.1 | | If for any reason (other than as specified in Clause 4.4.2 below) the Delivery
of any Aircraft has not occurred on or before the Final Delivery Date, then in addition
to refund of the relevant Deposit(s) plus interest in accordance with the provisions of
Clause 5.2.2, GECAS on behalf of the relevant Seller will reimburse Purchaser’s
transaction expenses in the amount of [\*] (“**Transaction Fee Reimbursement**”) in respect
of any such Aircraft as consideration for the loss of the Aircraft from the portfolio
to be acquired hereunder. |
| |
| | 4.4.2 | | GECAS will not have the obligation to make a Transaction Fee Reimbursement
pursuant to Clause 4.4.1 if the sale of Aircraft No. 5 to the Purchaser has not already
completed or if the failure of Delivery of an Aircraft by the Final Delivery Date is
the result of any of the following occurrences (i) any wilful breach by the relevant
Purchaser of any of its obligations under this Agreement (including the failure by the
relevant Purchaser to satisfy any of the Seller Conditions Precedent within the control |
| | | |
| --- | --- | --- |
| | | |
| \* | | Confidential material omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment. |
- 5 - | 799 |