EX-10
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bac-630201810xqex10.htm
EXHIBIT 10
Exhibit 10
AMENDED AND RESTATED
AIRCRAFT TIME SHARING AGREEMENT
(Multiple Aircraft)
Dated as of the 26th day of June, 2018,
between
Bank of America, NA,
as Time Share Lessor,
and
Xxxxx X. Xxxxxxxx,
as Time Share Lessee,
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INSTRUCTIONS FOR COMPLIANCE WITH
"TRUTH IN LEASING" REQUIREMENTS UNDER FAR § 91.23
Within 24 hours after execution of this Agreement:
mail a copy of the executed document to the
following address via certified mail, return receipt requested:
Federal Aviation Administration
Aircraft Registration Branch
ATTN: Technical Section
X.X. Xxx 00000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
At least 48 hours prior to the first flight of each Aircraft to be conducted under this Agreement:
provide notice, using the FSDO Notification Letter in Exhibit A,
of the departure airport and proposed time of departure of the
first flight, by facsimile, to the Flight Standards
District Office located nearest the departure airport.
Carry a copy of this Agreement in each Aircraft at all times.
* * *
This AMENDED AND RESTATED
AIRCRAFT TIME SHARING AGREEMENT (the "Agreement") is made and effective as of the 26th day of June, 2018 (the "Effective Date"), by and between Bank of America, NA, a national banking association ("Time Share Lessor"), and Xxxxx X. Xxxxxxxx ("Time Share Lessee"), and amends and restates that certain
Aircraft Time Sharing Agreement by and between Time Share Lessor and Time Share Lessee dated as of February 24, 2011, as previously amended.
W I T N E S S E T H :
WHEREAS, Time Share Lessee desires to lease each Aircraft, with a flight crew, on a non-exclusive basis, from Time Share Lessor on a time sharing basis as defined in Section 91.501(c)(1) of the FAR;
WHEREAS, Time Share Lessor is willing to lease each Aircraft, with a flight crew, on a non-exclusive basis, to Time Share Lessee on a time sharing basis; and
WHEREAS, during the Term of this Agreement, each Aircraft will be subject to use by Time Share Lessor and may be subject to use by one or more other third-parties.
NOW, THEREFORE, in consideration of the mutual promises herein contained and other good and valid consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
"Aircraft" means, individually and collectively as the context may require, each of the Aircraft identified in Exhibit B.
"Aircraft Documents" means all flight records, maintenance records, historical records, modification records, overhaul records, manuals, logbooks, authorizations, drawings and data relating to any specific Airframe, any specific Engine, or any Part associated with any specific Airframe or Engine, or that are required by Applicable Law to be created or maintained with respect to the maintenance and/or operation of any specific Aircraft.
"Applicable Law" means, without limitation, all applicable laws, treaties, international agreements, decisions and orders of any court, arbitration or governmental agency or authority and rules, regulations, orders, directives, licenses and permits of any governmental body, instrumentality, agency or authority, including, without limitation, the FAR and 49 U.S.C. § 41101, et seq., as amended.
"Business Day" means any day of the year during which Time Share Lessor’s headquarters offices in the State of North Carolina are open for business.
"DOT" means the United States Department of Transportation or any successor agency.
"FAA" means the Federal Aviation Administration or any successor agency.
"FAR" means collectively the Aeronautics Regulations of the FAA and the DOT, as codified at Title 14, Parts 1 to 399 of the United States Code of Federal Regulations.
"Operating Base" means Charlotte Xxxxxxx International Airport, in the City of Charlotte, State of North Carolina.
"Operational Control" has the same meaning given the term in Section 1.1 of the FAR.
"Parts" means all appliances, components, parts, instruments, appurtenances, accessories, furnishings or other equipment of whatever nature (other than complete Engines or engines) which may from time to time be incorporated or installed in or attached to any Airframe or any Engine and includes replacement parts.
"Pilot in Command" has the same meaning given the term in Section 1.1 of the FAR.
"Schedule Keeper" means the person designated by the Time Share Lessor to maintain the scheduling log of the Aircraft. The name, address, telephone number, and other contact information for the Schedule Keeper are set forth
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in Section 27.
"Taxes" means commercial air transportation excise taxes pursuant to Section 4261 of the Internal Revenue Code of 1986, as amended, regardless of whether any flight is considered “noncommercial” under the FAR.
"Term" means the entire period from the Effective Date to the date this Agreement is terminated pursuant to Section 3.
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3.3.1
| Each party shall have the right to terminate this Agreement at any time with or without cause on thirty (30) days written notice to the other party.
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3.3.3
| This Agreement shall terminate automatically and without further notice on the date the Time Share Lessee no longer serves as the Time Share Lessor’s Chief Executive Officer.
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6.1
| fuel, oil, lubricants, and other additives;
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6.2 travel expenses of the crew, including food, lodging and ground transportation;
6.3 hangar and tie down costs away from the Aircraft's Operating Base;
6.4 insurance obtained for the specific flight;
6.5 landing fees, airport taxes and similar assessments;
6.6 customs, foreign permit, and similar fees directly related to the flight;
6.7 in-flight food and beverages;
6.8 passenger ground transportation;
6.9 flight planning and weather contract services; and
6.10 an additional charge equal to 100% of the expenses listed in Section 6.1.
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opinion of Time Share Lessor, may be necessary or desirable in order to protect or preserve Time Share Lessor's title to the various Aircraft.
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14.
| Authority of Pilot In Command. Notwithstanding that Time Share Lessor shall have Operational Control of the Aircraft during any flight conducted pursuant to this Agreement, Time Share Lessor and Time Share Lessee expressly agree that the Pilot in Command, in his or her sole discretion, may terminate any flight, refuse to commence any flight, or take any other flight-related action which in the judgment of the Pilot in Command is necessary to ensure the safety of the Aircraft, the flight crew, the passengers, and persons and property on the ground. The Pilot in Command shall have final and complete authority to postpone or cancel any flight for any reason or condition that in his or her judgment would compromise the safety of the flight. No such action of the Pilot in Command shall create or support any liability of Time Share Lessor to Time Share Lessee for loss, injury, damage or delay.
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19.2
| Time Share Lessee shall refrain from incurring any mechanic's or other lien in connection with inspection, preventative maintenance, maintenance or storage of the various Aircraft, whether permissible or impermissible under this Agreement, nor shall there be any attempt by Time Share Lessee to convey, mortgage, assign, lease, sublease, or any way alienate any Aircraft or create any kind of lien or security interest involving any Aircraft or do anything or take any action that might mature into such a lien.
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19.3
| During the Term of this Agreement, Time Share Lessee will abide by and conform to all Applicable Laws, governmental and airport orders, rules and regulations, as shall from time to time be in effect relating in any way to the operation and use of any Aircraft by a time sharing Time Share Lessee.
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20.
| No Assignments Neither this Agreement nor any party's interest herein shall be assignable to any other party whatsoever.
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27.
| Notices. All communications, declarations, demands, consents, directions, approvals, instructions, requests and notices required or permitted by this Agreement shall be in writing and shall be deemed to have been duly given or made when delivered personally or transmitted electronically by e-mail or facsimile, receipt acknowledged, or in the case of documented overnight delivery service or registered or certified mail, return receipt requested, delivery charge or postage prepaid, on the date shown on the receipt therefor, in each case at the address set forth below:
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If to Time Share Lessor: Bank of America, NA Tel: 000-000-0000
000 Xxxxx Xxxxx Xxxxxx Fax: 000-000-0000
Xxxxxxxxx, XX 00000
Attn: General Counsel
With a copy to: GKG, Law, P.C. Tel: 000-000-0000
0000 Xxxxxx Xxxxxxxxx Xxxxxx, X.X. Fax: 000-000-0000
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
If to Time Share Lessee: To Time Share Lessee’s home address
and/or telephone number on file with
Time Share Lessor at the time of the notice.
If to Schedule Keeper: Bank of America Aircraft Scheduling Tel: 000-000-0000
0000 Xxxxxxx Xxxxx Fax: 000-000-0000
Xxxxxxxxx, XX 00000-0000
Attn: Senior Vice President, Aviation Executive
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28.
| Governing Law. This Agreement has been negotiated and delivered in the State of North Carolina and shall in all respects be governed by, and construed in accordance with, the laws of the State of North Carolina including all matters of construction, validity and performance, without giving effect to its conflict of laws provisions.
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30.
| DISCLAIMER. Each Aircraft is being leased by the Time Share Lessor to the Time Share Lessee hereunder on a completely "as is, where is," basis, which is acknowledged and agreed to by the Time Share Lessee. The warranties and representations set forth in this Agreement are exclusive and in lieu of all other representations or warranties whatsoever, express or implied, and Time Share Lessor has not made and shall not be considered or deemed to have made (whether by virtue of having leased any Aircraft under this Agreement, or having acquired any Aircraft, or having done or failed to do any act, or having acquired or failed to acquire any status under or in relation to this Agreement or otherwise) any other representation or warranty whatsoever, express or implied, with respect to any Aircraft or to any part thereof, and specifically, without limitation, in this respect Time Share Lessor disclaims all representations and warranties concerning the title, airworthiness, value, condition, design, merchantability, compliance with specifications, construction and condition of the Aircraft, or fitness for a particular use of any Aircraft and as to the absence of latent and other defects, whether or not discoverable, and as to the absence of any infringement or the like, hereunder of any patent, trademark or copyright, and as to the absence of obligations based on strict liability in tort, or as to the quality of the material or workmanship of any Aircraft or any part thereof or any other representation or warranty whatsoever, express or implied (including any implied warranty arising from a course of performance or dealing or usage of trade), with respect to any Aircraft or any part thereof. Time Share Lessee hereby waives, releases, disclaims and renounces all expectation of or reliance upon any such and other warranties, obligations and liabilities of Time Share Lessor and rights, claims and remedies of Time Share Lessee against Time Share Lessor, express or implied, arising by law or otherwise, including but not limited to (i) any implied warranty of merchantability of fitness for any particular use, (ii) any implied warranty arising from course of performance, course of dealing or usage of trade,
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(iii) any obligation, liability, right, claim or remedy in tort, whether or not arising from the negligence of Time Share Lessor, actual or imputed, and (iv) any obligation, liability, right, claim or remedy for loss of or damage to any Aircraft, for loss of use, revenue or profit with respect to any Aircraft, or for any other direct, indirect, incidental or consequential damages.
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31.
| INDEMNITY. (a) Except as provided in Sections 31(b) and (c) below, Time Share Lessee hereby releases, and shall defend, indemnify and hold harmless Time Share Lessor and Time Share Lessor's shareholders, members, directors, officers, managers, employees, successors and assigns, from and against, any and all claims, damages, losses, liabilities, demands, suits, judgments, causes of action, civil and criminal legal proceedings, penalties, fines, and other sanctions, and any attorneys' fees and other reasonable costs and expenses, directly or indirectly arising from this Agreement, and/or the operation or use of any aircraft under this Agreement by Time Share Lessee, and/or the carriage or presence on board any aircraft of any contraband, prohibited dangerous goods, or prohibited controlled substances, except to the extent arising from the gross negligence or willful misconduct of Time Share Lessor or the flight crew. In no event shall Time Share Lessor be liable to Time Share Lessee or any person claiming by or through Time Share Lessee for any indirect, incidental, special, consequential, or punitive damages of any kind or nature.
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(a)
| Notwithstanding the provisions of Section 31(a) above, Time Share Lessor agrees to accept the proceeds of the hull and liability insurance required by this Agreement as its sole recourse against Time Share Lessee in the event of any claim by Time Share Lessee relating to any type of injury, death or property damage for which such insurance is being provided under this Agreement.
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(c)
| The limitations provided for in Section 31(b) will not operate against Time Share Lessor to the extent that insurance proceeds are withheld or reduced due to the actions or inactions of Time Share Lessee.
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WITHIN THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THIS AGREEMENT, EACH AIRCRAFT HAS BEEN INSPECTED AND MAINTAINED IN ACCORDANCE WITH THE PROVISIONS OF FAR 91.409.
THE PARTIES HERETO CERTIFY THAT DURING THE TERM OF THIS AGREEMENT AND FOR OPERATIONS CONDUCTED HEREUNDER, EACH AIRCRAFT WILL BE MAINTAINED AND INSPECTED IN ACCORDANCE WITH THE PROVISIONS OF FAR 91.409.
TIME SHARE LESSOR ACKNOWLEDGES THAT WHEN IT OPERATES ANY AIRCRAFT ON BEHALF OF TIME SHARE LESSEE UNDER THIS AGREEMENT, TIME SHARE LESSOR SHALL BE KNOWN AS, CONSIDERED, AND IN FACT WILL BE THE OPERATOR OF SUCH AIRCRAFT. EACH PARTY HERETO CERTIFIES THAT IT UNDERSTANDS THE EXTENT OF ITS RESPONSIBILITIES, SET FORTH HEREIN, FOR COMPLIANCE WITH APPLICABLE FEDERAL AVIATION REGULATIONS.
AN EXPLANATION OF FACTORS BEARING ON OPERATIONAL CONTROL AND PERTINENT FEDERAL AVIATION REGULATIONS CAN BE OBTAINED FROM THE NEAREST FEDERAL AVIATION ADMINISTRATION FLIGHT STANDARDS DISTRICT OFFICE.
THE PARTIES HERETO CERTIFY THAT A TRUE COPY OF THIS AGREEMENT SHALL BE CARRIED ON EACH AIRCRAFT AT ALL TIMES, AND SHALL BE MADE AVAILABLE FOR INSPECTION UPON REQUEST BY AN APPROPRIATELY CONSTITUTED IDENTIFIED REPRESENTATIVE OF THE ADMINISTRATOR OF THE FAA.
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IN WITNESS WHEREOF, the parties have executed this AMENDED AND RESTATED
AIRCRAFT TIME SHARING AGREEMENT as of the date and year first written above.
TIME SHARE LESSOR:
Bank of America, NA
By: /s/ Xxxxx X. Xxxxxx
Print: Xxxxx X. Xxxxxx
Title: Global General Counsel
TIME SHARE LESSEE:
/s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
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EXHIBIT A
to
AMENDED AND RESTATED
AIRCRAFT TIME SHARING AGREEMENT
dated as of the 26th day of June, 2018,
by and between Bank of America, NA ("Time Share Lessor"),
and
Xxxxx X. Xxxxxxxx ("Time Share Lessee")
FSDO Notification Letter
Date: _________________
Via Facsimile
Fax: __________________
Federal Aviation Administration
__________________________
__________________________
__________________________
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RE:
| FAR Section 91.23 FSDO Notification
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First Flight Under Time Sharing Agreement of Aircraft
____________ model ____________, s/n ________, N___________
To whom it may concern:
Pursuant to the requirements of Federal Aviation Regulation Section 91.23(c)(3), please accept this letter as notification that the undersigned will acquire and take delivery of a leasehold interest in the above referenced aircraft on the ___ day of _____________, 20___, and that the first flight of the aircraft under the Time Sharing Agreement will depart from _______________________ Airport on the ___ day of __________, 20___, at approximately _____ (am / pm) local time.
Sincerely,
______________________________
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EXHIBIT B
to
AMENDED AND RESTATED
AIRCRAFT TIME SHARING AGREEMENT
dated as of the 26th day of June, 2018,
by and between Bank of America, NA ("Time Share Lessor"),
and
Xxxxx X. Xxxxxxxx ("Time Share Lessee")
Aircraft List Current as of June 26, 2018
"Aircraft 1" means collectively that certain Gulfstream Aerospace G650ER aircraft bearing U.S. registration number N652BA and manufacturer's serial number 6130 (“Airframe 1”), together with two (2) Rolls-Royce BR700-725A1-12 engines bearing manufacturer's serial numbers 25373 & 25372 (“Aircraft 1 Engines”), and all Parts and Aircraft Documents associated with Aircraft 1. The Aircraft 1 Engines shall be deemed part of Aircraft 1 whether or not from time to time attached to Airframe 1 or removed from Airframe 1.
"Aircraft 2" means collectively that certain Gulfstream Aerospace G650ER aircraft bearing U.S. registration number N651BA and manufacturer's serial number 6287 (“Airframe 2”), together with two (2) Rolls-Royce BR700-725A1-12 engines bearing manufacturer's serial numbers 25683 & 25682 (“Aircraft 2 Engines”), and all Parts and Aircraft Documents associated with Aircraft 2. The Aircraft 2 Engines shall be deemed part of Aircraft 2 whether or not from time to time attached to Airframe 2 or removed from Airframe 2.
"Aircraft 3" means collectively that certain Gulfstream Aerospace G280 aircraft bearing U.S. registration number N228BA and manufacturer's serial number 2103 (“Airframe 3”), together with two (2) Honeywell AS907-2-1G engines bearing manufacturer's serial numbers P130323 & P130324 (“Aircraft 3 Engines”), and all Parts and Aircraft Documents associated with Aircraft 3. The Aircraft 3 Engines shall be deemed part of Aircraft 3 whether or not from time to time attached to Airframe 3 or removed from Airframe 3.
"Aircraft 4" means collectively that certain Gulfstream Aerospace G280 aircraft bearing U.S. registration number N283BA and manufacturer's serial number 2090 (“Airframe 4”), together with two (2) Honeywell AS907-2-1G engines bearing manufacturer's serial numbers P130297 & P130298 (“Aircraft 4 Engines”), and all Parts and Aircraft Documents associated with Aircraft 4. The Aircraft 4 Engines shall be deemed part of Aircraft 4 whether or not from time to time attached to Airframe 4 or removed from Airframe 4.
"Aircraft 5" means collectively that certain Gulfstream Aerospace G280 aircraft bearing U.S. registration number N285BA and manufacturer's serial number 2095 (“Airframe 5”), together with two (2) Honeywell AS907-2-1G engines bearing manufacturer's serial numbers P130313 & P130314 (“Aircraft 5 Engines”), and all Parts and Aircraft Documents associated with Aircraft 5. The Aircraft 5 Engines shall be deemed part of Aircraft 5 whether or not from time to time attached to Airframe 5 or removed from Airframe 5.
"Aircraft 6" means collectively that certain Gulfstream Aerospace G280 aircraft bearing U.S. registration number N286BA and manufacturer's serial number 2111 (“Airframe 6”), together with two (2) Honeywell AS907-2-1G engines bearing manufacturer's serial numbers P130340 & P130339 (“Aircraft 6 Engines”), and all Parts and Aircraft Documents associated with Aircraft 6. The Aircraft 6 Engines shall be deemed part of Aircraft 6 whether or not from time to time attached to Airframe 6 or removed from Airframe 6.
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