AIRCRAFT LEASE AGREEMENT Dated as of the 19th day of October, 2009. between LW Air I LLC, as Owner, and Avantair, Inc. as Lessee, concerning one Piaggio Avanti P-180 aircraft bearing and Manufacturer’s serial number 1181. INSTRUCTIONS FOR COMPLIANCE...
Exhibit
10.17
CONFIDENTIAL
TREATMENT
REQUESTED
PURSUANT TO RULE 24b-2
Certain
portions of this exhibit have been omitted pursuant to a request for
confidential treatment under Rule 24b-2 under the Securities Exchange Act of
1934. The omitted materials have been filed separately with the Securities and
Exchange Commission.
Dated as
of the 19th day of
October, 2009.
between
LW Air I
LLC,
as
Owner,
and
as
Lessee,
concerning
one Piaggio Avanti P-180 aircraft bearing
U.S.
registration number N189SL,
and
Manufacturer’s
serial number 1181.
* * *
INSTRUCTIONS
FOR COMPLIANCE WITH
"TRUTH
IN LEASING" REQUIREMENTS UNDER FAR § 91.23
Within
24 hours after execution of this Aircraft Lease Agreement:
Mail a
copy of the executed document, without Exhibit B, 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
A copy
of this Aircraft Lease Agreement must remain in the aircraft at all
times.
* * *
Exhibit
B is
intentionally
omitted for FAA submission purposes.
[***]
Confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment
request.
This AIRCRAFT LEASE AGREEMENT (the
"Agreement") is entered into as of this 19th day of
October, 2009 (the "Effective Date"), by and between Avantair, Inc. ("Lessee"),
and LW Air I LLC ("Owner").
W
I T N E S S E T H :
WHEREAS, Owner holds title in
and to the Aircraft described and referred to herein;
WHEREAS, Lessee desires to
lease from Owner, and Owner desires to lease to Lessee, the Aircraft, on a
non-exclusive basis, upon and subject to the terms and conditions of this
Agreement; and
WHEREAS, during the term of
this Agreement, the Aircraft may be subject to concurrent leases to other
lessees.
NOW, THEREFORE, in
consideration of the mutual promises herein contained and other good and valid
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties agree as follows:
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SECTION
1.
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DEFINITIONS
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1.1
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The
following terms shall have the following meanings for all purposes of this
Agreement:
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"Aircraft" means the Airframe,
the Engines, and the Aircraft Documents. Such Engines shall be deemed
part of the "Aircraft" whether or not from time to time attached to the Airframe
or on the ground.
"Aircraft Documents" means all
flight records, maintenance records, historical records, modification records,
overhaul records, manuals, logbooks, authorizations, drawings and data relating
to the Airframe, any Engine, or any Part, that have been provided to Lessee by
Owner, or are required by Applicable Law to be created or maintained with
respect to the maintenance and/or operation of the Aircraft.
"Airframe" means the aircraft
specified in Exhibit
A, together with any and all Parts (including, but not limited to,
landing gear and auxiliary power units but excluding Engines or engines) so long
as such Parts shall be either incorporated or installed in or attached to the
Airframe.
"Applicable Law" means,
without limitation, all applicable laws, treaties, international agreements,
decisions and orders of any court, arbitration or governmental agency or
authority and rules, regulations, orders, directives, licenses and permits of
any governmental body, instrumentality, agency or authority, including, without
limitation, the FAR and 49 U.S.C. § 41101, et seq., as
amended.
"Business Day" means any day
of the year in which banks are not authorized or required to close in the state
identified as Controlling State Law on Exhibit
A.
"Event of Loss" shall mean any
of the following events with respect to any property:
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(i)
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loss
of such property or of the use thereof due to theft or disappearance (with
loss being conclusive following 30 days or such other period specified in
applicable insurance), destruction, damage beyond economic repair or
rendition of such property permanently unfit for normal use for any
reason;
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(ii)
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any
damage to such property which results in an insurance settlement with
respect to such property on the basis of an actual, constructive or
compromised total loss; or
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(iii)
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the
condemnation, confiscation or seizure of, or requisition of title to or
use of, such property by private persons or by any governmental or
purported governmental authority.
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"FAA" means the Federal
Aviation Administration or any successor agency.
[***]
Confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment
request.
2
"FAR" means collectively the
Aeronautics Regulations of the Federal Aviation Administration and the
Department of Transportation, as codified at Title 14, Parts 1 to 399 of the
United States Code of Federal Regulations.
"Flight Hour" means each
flight hour of use of the Aircraft by Lessee, as recorded on the Aircraft hour
meter and measured from the time the Aircraft takes off at the beginning of a
flight, to the time the Aircraft lands at the end of a flight in one-tenth
(1/10th) of an
hour increments.
“Lease Period” each lease
period shall commence with delivery and conclude with the return of the
Aircraft.
"Lien" means any mortgage,
security interest, lease or other charge or encumbrance or claim or right of
others, including, without limitation, rights of others under any airframe or
engine interchange or pooling agreement.
"Operating Base" means that
base airport described in Exhibit
A.
"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) which may from time
to time be incorporated or installed in or attached to the Airframe or any
Engine and includes replacement parts.
"Pilot in Command" has the
same meaning given the term in Section 1.1 of the FAR.
"Rent Payment Date" means the
payments dates as outlined in Exhibit
B.
"Taxes" means all sales taxes,
use taxes, retailer taxes, duties, fees, excise taxes (including, without
limitation, federal transportation excise taxes), or other taxes of any kind
which may be assessed or levied by any Taxing Jurisdiction as a result of the
lease of the Aircraft to Lessee, or the use of the Aircraft by
Lessee, or the provision of a taxable transportation service by Lessee using the
Aircraft.
"Taxing Jurisdictions" means
any federal, state, county, local, airport, district, foreign, or other
governmental authority that imposes Taxes.
"Term" means the term of this
Agreement set forth in Section 3.1.
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SECTION
2.
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LEASE AND DELIVERY OF
THE AIRCRAFT
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2.1
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Lease. Owner
agrees to lease to Lessee, and Lessee agrees to lease from Owner, the
Aircraft, on the terms and conditions of this
Agreement.
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2.2
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Delivery. The
Aircraft shall be delivered to Lessee on a mutually agreed date (the
"Delivery Date") at the Operating Base on an "AS IS," "WHERE IS," BASIS
AND SUBJECT TO EACH AND EVERY DISCLAIMER OF WARRANTY AND REPRESENTATION AS
SET FORTH IN SECTION 4 HEREOF. Owner shall not be liable for
delay or failure to furnish the Aircraft pursuant to this Agreement when
such failure is caused by government regulation or authority, mechanical
difficulty, war, civil commotion, strikes or labor disputes, weather
conditions, or acts of God.
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2.3
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Non-Exclusivity. Lessee
and Owner acknowledge that the Aircraft is leased to Lessee on a
non-exclusive basis, and that the Aircraft may be subject to by other
lessees during the Term.
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[***]
Confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment
request.
3
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SECTION
3.
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TERM, SCHEDULING, AND
RENT
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3.1
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Term. The
term (“Term”) of this
Agreement shall: (A) in the event of a trip solely to reposition the
Aircraft (i) commence immediately prior to any repositioning of the
Aircraft by Lessee and (ii) end at the completion of such repositioning
flight, or (B) in the event of any other trip on the Aircraft governed by
this Agreement, (i) commence immediately prior to Lessee’s trip on the
Aircraft governed by this Agreement and (ii) end at the completion of such
Lessee’s trip upon the Aircraft, as the case may be. Lessee
shall adhere to the terms and conditions of this Agreement each time that
the Aircraft is used by Lessee. [Xxxx which
term applies at execution of
Lease].
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3.2
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Scheduling. Each
use of the Aircraft by Lessee shall be subject to Owner’s approval. If
requested by Owner, Lessee shall submit flight scheduling request to Owner
as far in advance as reasonably
possible.
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3.3
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Rent. Lessee
shall pay rent in an amount equal to the Hourly Rent specified in Exhibit B
attached hereto, which amount may be amended in writing by mutual
agreement of the parties from time to time, for each Flight Hour of use of
the Aircraft by Lessee. All rent shall be paid to the Owner in
immediately available U.S. funds and in form and manner as set forth on
Exhibit
B.
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3.4
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Taxes. (a) Neither
rent nor any other payments to be made by Lessee under this Agreement
includes the amount of any Taxes which may be assessed or levied by any
Taxing Jurisdictions as a result of the lease of the Aircraft to Lessee,
or the use of the Aircraft by Lessee, or the provision of a taxable
transportation service by Lessee using the Aircraft. Lessee shall be
responsible for, shall indemnify and hold Owner harmless against, and,
except as provided in Section 3.4(b), Lessee shall remit to Owner all such
Taxes together with each payment of rent pursuant to Section 3.3;
provided, however, that if any such Taxes shall be due and payable at an
earlier time as a matter of Applicable Law, Lessee shall remit such Taxes
to Owner at the time required by Applicable
Law.
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(b) If
any Taxes shall be required by Applicable Law to be paid by Lessee directly to
the appropriate Taxing Jurisdiction, Lessee shall remit such Taxes directly to
the appropriate Taxing Jurisdiction promptly at the time required by Applicable
Law, and shall provide evidence of such payment to Owner.
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SECTION
4.
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DISCLAIMER OF
WARRANTIES
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4.1
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THE
AIRCRAFT IS BEING LEASED BY THE OWNER TO THE LESSEE HEREUNDER ON A
COMPLETELY "AS IS," "WHERE IS," BASIS, WHICH IS ACKNOWLEDGED AND AGREED TO
BY THE LESSEE. THE WARRANTIES AND REPRESENTATIONS SET FORTH IN
THIS SECTION 4 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS OR
WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, AND OWNER HAS NOT MADE AND
SHALL NOT BE CONSIDERED OR DEEMED TO HAVE MADE (WHETHER BY VIRTUE OF
HAVING LEASED THE AIRCRAFT UNDER THIS AGREEMENT, OR HAVING ACQUIRED THE
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 THE AIRCRAFT OR TO ANY PART THEREOF, AND
SPECIFICALLY, WITHOUT LIMITATION, IN THIS RESPECT DISCLAIMS AS TO THE
TITLE, AIRWORTHINESS, VALUE, CONDITION, DESIGN, MERCHANTABILITY,
COMPLIANCE WITH SPECIFICATIONS, CONSTRUCTION AND CONDITION OF THE AIRCRAFT
OPERATION, OR FITNESS FOR A PARTICULAR USE OF THE AIRCRAFT AND AS TO THE
ABSENCE OF LATENT AND OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE, AS TO
THE ABSENCE OF ANY INFRINGEMENT OR THE LIKE, HEREUNDER OF ANY PATENT,
TRADEMARK OR COPYRIGHT, AS TO THE ABSENCE OF OBLIGATIONS BASED ON STRICT
LIABILITY IN TORT, OR AS TO THE QUALITY OF THE MATERIAL OR WORKMANSHIP OF
THE 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 THE AIRCRAFT OR ANY PART THEREOF. THE LESSEE HEREBY WAIVES,
RELEASES, DISCLAIMS AND RENOUNCES ALL EXPECTATION OF OR RELIANCE UPON ANY
SUCH AND OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF OWNER AND
RIGHTS, CLAIMS AND REMEDIES OF THE LESSEE AGAINST OWNER, 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, (III) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM
OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF OWNER,
ACTUAL OR IMPUTED, AND (IV) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR
REMEDY FOR LOSS OF OR DAMAGE TO THE AIRCRAFT, FOR LOSS OF USE, REVENUE OR
PROFIT WITH RESPECT TO THE AIRCRAFT, OR FOR ANY OTHER DIRECT, INCIDENTAL
OR CONSEQUENTIAL DAMAGES.
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[***]
Confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment
request.
4
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SECTION
5.
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REGISTRATION, USE,
OPERATION, MAINTENANCE AND
POSSESSION
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5.1
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Title and Registration;
Subordination. Owner has exclusive and equitable title
to the Aircraft, and exclusive leasehold possessory rights to the
Aircraft. Lessee acknowledges that title to the Aircraft shall
remain vested in Owner, and Lessee undertakes, to the extent permitted by
Applicable Law, to do all such further acts, deeds, assurances or things
as may, (i) in the reasonable opinion of the Owner, be necessary or
desirable in order to protect or preserve Owner’s right, title and
interest in the Aircraft, and (ii) in the reasonable opinion of the Owner,
be necessary or desirable in order to protect or preserve Owner’s
rights. Notwithstanding anything in this Agreement to the
contrary, any rights Lessee may have in or to the Aircraft by virtue of
this Agreement, including Lessee’s rights to possession and use of the
Aircraft, are in all respects subordinate, junior, and subject to Owner's
rights and interests.
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5.2
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Use and
Operation. Except as otherwise expressly provided
herein, Lessee shall be solely and exclusively responsible for the use,
operation and control of the Aircraft while in its possession during each
Lease Period of this Agreement. Lessee (i) shall operate the
Aircraft in accordance with the provisions of Part 91 of the FAR, (ii)
shall not operate the Aircraft in commercial service, as a common carrier,
or otherwise on a compensatory or "for hire" basis except to the limited
extent permitted under Subpart F of Part 91 of the FAR, if applicable,
(iii) shall not operate or locate the Airframe or any Engine, or suffer
the Airframe or any Engine to be operated or located, in any area excluded
from coverage by any insurance policy in effect or required to be
maintained hereunder with respect to the Airframe or Engines, or in any
war zone, (iv) shall not operate the Airframe or any Engine or permit the
Airframe or any Engine to be operated during each Lease Period except in
operations for which Lessee is duly authorized, or use or permit the
Aircraft to be used for a purpose for which the Aircraft is not designed
or reasonably suitable, (v) shall not permit the Airframe or any Engine to
be maintained, used or operated during each Lease Period in violation of
any Applicable Law, or contrary to any manufacturer's operating manuals or
instructions, and (vi) shall not knowingly permit the Aircraft to be used
for the carriage of any persons or property prohibited by law, nor
knowingly permit the Aircraft to be used during the existence of any known
defect except in accordance with the FAR. Notwithstanding
anything in this Agreement to the contrary, Lessee shall at all times
retain the services of Avantair, Inc. to manage and operate the Aircraft
on its behalf.
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5.3
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Lessee to Pay All Operating
Costs. Other than as expressly provided herein, Lessee
shall arrange for and pay all operating costs associated with Lessee’s use
and incurred during each Lease Period, including, without limitation,
costs of pilots, cabin personnel, mechanics, and other ground
support personnel (the foregoing collectively, the "Flight Crew"); fuel;
oil; lubricants; landing and navigation fees; airport charges; passenger
service and any and all other expenses of any kind or nature, arising
directly or indirectly in connection with or related to the use, movement
and operation of the Aircraft by Lessee during each Lease
Period. The obligations of Lessee under this provision shall
survive the end of the Term.
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5.4
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Maintenance of
Aircraft. Owner agrees to deliver the Aircraft to
Lessee in a good and airworthy operating condition and in compliance with
applicable maintenance standards and practices. Owner shall
thereafter be solely responsible for any repairs or maintenance of the
Aircraft that shall be required during the Term of this
Agreement. The term "repairs" shall include all necessary
service, repairs, tests, and maintenance (both routine and extraordinary)
of Aircraft as appropriate to maintain the Aircraft in accordance with
Applicable Law. Owner shall maintain or cause to be maintained
all Aircraft Documents required by the FAA, the Airframe manufacturer, the
Engine manufacturer, and the manufacturers of component Parts, and said
Aircraft Documents shall be maintained in a current, accurate, and
complete manner. Lessee agrees to use its best efforts promptly
to furnish Owner such information with respect to its use of the Aircraft
as to enable Owner to file all reports required by any government
authority relating to Owner’s ownership of Aircraft. Owner
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.
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[***]
Confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment
request.
5
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5.5
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Flight
Crew. Lessee, at its sole expense, shall retain the the
Flight Crew. All members of the Flight Crew shall be fully
competent and experienced, duly licensed, and qualified in accordance with
the requirements of Applicable Law and all insurance policies covering the
Aircraft. All members of the Flight Crew who are pilots shall
be fully trained in accordance with an FAA-approved training program,
including initial and recurrent training and, where appropriate,
contractor-provided simulator
training.
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5.6
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Operational
Control. THE PARTIES EXPRESSLY AGREE THAT LESSEE
SHALL AT ALL TIMES WHILE THE AIRCRAFT IS IN ITS POSSESSION DURING EACH
LEASE PERIOD MAINTAIN OPERATIONAL CONTROL OF THE AIRCRAFT, AND THAT THE
INTENT OF THE PARTIES IS THAT THIS AGREEMENT CONSTITUTE A "DRY" OPERATING
LEASE. Lessee shall exercise exclusive authority over
initiating, conducting, or terminating any flight conducted pursuant to
this Agreement, and the Flight Crew shall be under the exclusive command
and control of Lessee in all phases of such
flights.
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5.7
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Authority of Pilot in
Command. Notwithstanding that Lessee shall have
operational control of the Aircraft during any flight conducted pursuant
to this Agreement, Owner and 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 necessitated by considerations of
safety. The Pilot in Command shall have final and complete authority to
postpone or cancel any flight for any reason or condition which in his or
her judgment would compromise the safety of the flight. No such action of
the Pilot in Command shall create or support any liability for loss,
injury, damage or delay to Owner.
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5.8
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Aircraft Documents.
Owner shall, at its expense, maintain and preserve, or cause to be
maintained and preserved, in the English language, all Aircraft Documents
in a complete, accurate, and up-to-date
manner.
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SECTION
6.
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CONDITION DURING TERM
AND RETURN OF AIRCRAFT
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6.1
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Return. Upon
termination of each Lease Period, Lessee shall return the Aircraft to the
Owner by delivering the same, at the Lessee’s own risk and expense, to the
Operating Base. The Aircraft at the time of its return shall be
in the condition set forth in this Section 6 and shall be free and
clear of all Liens.
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6.2
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Condition of
Aircraft. The Aircraft at the time of its return to
Owner shall have been maintained and repaired in accordance with the
provisions of this Agreement with the same care and consideration for the
technical condition of the Aircraft as if it were to have been kept in
continued regular service by the Owner, and shall meet the following
requirements:
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(a)
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Operating
Condition. The Aircraft shall be in as good operating
condition as on the Delivery Date, ordinary wear and tear
excepted.
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(b)
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Certificate of
Airworthiness. The Aircraft shall have, and be in
compliance with, a current valid certificate of airworthiness issued by
the FAA, and shall be airworthy according to manufacturer's specifications
and FAA regulations.
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[***]
Confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment
request.
6
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SECTION
7.
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LIENS
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7.1
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Lessee
shall ensure that no Liens are created or placed against the Aircraft by
Lessee or third parties as a result of Lessee’s actions. Lessee
shall notify Owner promptly upon learning of any Liens not permitted under
the terms of this Agreement. Lessee shall, at its own cost and
expense, take all such actions as may be necessary to discharge and
satisfy in full any such Lien promptly after the same becomes known to
it. Lessee shall pay all charges related to the Aircraft as
they become due and payable.
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SECTION
8.
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INSURANCE
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8.1
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Liability. Owner
shall maintain, or cause to be maintained, bodily injury and property
damage, liability insurance in connection with the use of the
Aircraft. Said policy shall be an occurrence policy naming
Owner and Lessee as Named Insureds. The cost of such insurance
shall be borne by the Lessee.
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8.2
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Hull. Owner
shall maintain, or cause to be maintained, all risks aircraft hull
insurance in an amount equal to the fair market value of the Aircraft and
such insurance shall name Owner as loss payee. The cost of such
insurance shall be borne by the
Lessee.
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8.3
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Insurance
Certificates. Upon request, Owner will provide Lessee
with a Certificate of Insurance following execution of this
Agreement.
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SECTION
9.
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DEFAULTS AND
REMEDIES
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9.1
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Upon
the occurrence of any failure of Lessee to duly observe or perform any of
its obligations hereunder and at any time thereafter so long as the same
shall be continuing, the Owner may, at its option, declare in writing to
the Lessee that this Agreement is in default; and at any time thereafter,
so long as the Lessee shall not have remedied the outstanding default, the
Owner may cancel, terminate, or rescind this
Agreement.
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SECTION
10.
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NOTICES
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10.1
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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 thereof, in each case at the address set forth
below:
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If
to Owner:
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LW
Air I LLC
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Tel:
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Fax:
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If
to Lessee:
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Tel:
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000-000-0000
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0000
Xxxxxxx Xxxxxx Xxxxx
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Fax:
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000-000-0000
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Xxxxxxxxxx,
XX 00000
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SECTION
11.
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RISK OF DAMAGE OR
LOSS
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11.1
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Risk of
Loss. At all times while the Aircraft is in under the
Operational Control of Lessee during the Term, Lessee shall bear the
entire risk of an Event of Loss to the Aircraft, and shall indemnify and
hold Owner harmless from and against any Event of Loss (including, without
limitation, destruction, loss, theft, requisition of title, or use,
confiscation, taking or damage of or to the Aircraft from any cause), and
all damages (including consequential, direct and punitive), claims (in
contract, tort or otherwise), suits, actions or proceedings arising from
the use, operation or storage of the Aircraft. In the event of
an Event of Loss to the Aircraft, Lessee shall immediately (i) report the
Event of Loss to Owner, the insurance company or companies, and to any and
all applicable governmental agencies, and (ii) furnish such information
and execute such documents as may be required and necessary to collect the
proceeds from any insurance
policies.
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[***]
Confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment
request.
7
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SECTION
12.
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MISCELLANEOUS
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12.1
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Entire
Agreement. This Agreement, and all terms, conditions,
warranties, and representations herein, are for the sole and exclusive
benefit of the signatories hereto. This Agreement constitutes
the entire agreement of the parties as of its Effective Date and
supersedes all prior or independent, oral or written agreements,
understandings, statements, representations, commitments, promises, and
warranties made with respect to the subject matter of this
Agreement.
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12.2
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Other
Transactions. Except as specifically provided in this
Agreement, none of the provisions of this Agreement, nor any oral or
written statements, representations, commitments, promises, or warranties
made with respect to the subject matter of this Agreement shall be
construed or relied upon by any party as the basis of, consideration for,
or inducement to engage in, any separate agreement, transaction or
commitment for any purpose
whatsoever.
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12.3
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Prohibited and Unenforceable
Provisions. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibitions or unenforceability in any
jurisdiction. To the extent permitted by applicable law, each
of Owner and Lessee hereby waives any provision of applicable law which
renders any provision hereof prohibited or unenforceable in any
respect.
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12.4
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Enforcement. This
Agreement, including all agreements, covenants, representations and
warranties, shall be binding upon and inure to the benefit of, and may be
enforced by Owner, Lessee, and each of their agents, servants and personal
representatives.
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12.5
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Headings. The
section and subsection headings in this Agreement are for convenience of
reference only and shall not modify, define, expand, or limit any of the
terms or provisions hereof.
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12.6
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Counterparts. This
Agreement may be executed by the parties hereto in separate counterparts,
each of which when so executed and delivered shall be an original, but all
such counterparts shall together constitute but one and the same
instrument.
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12.7
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Amendments. No
term or provision of this Agreement may be amended, changed, waived,
discharged, or terminated orally, but only by an instrument in writing
signed by the party against which the enforcement of the change, waiver,
discharge, or termination is
sought.
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12.8
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No Waiver. No
delay or omission in the exercise or enforcement or any right or remedy
hereunder by either party shall be construed as a waiver of such right or
remedy. All remedies, rights, undertakings, obligations, and
agreements contained herein shall be cumulative and not mutually
exclusive, and in addition to all other rights and remedies which either
party possesses at law or in
equity.
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12.9
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No
Assignments. Neither party may assign its rights or
obligations under this Agreement without the prior written permission of
the other.
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12.10
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Governing
Law. This Agreement shall in all respects be governed
by, and construed in accordance with, the laws of the state designated in
Exhibit
A, including all matters of construction, validity and performance,
without giving effect to its conflict of laws
provisions.
|
REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK.
[***]
Confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment
request.
8
|
SECTION
13.
|
TRUTH IN
LEASING
|
|
13.1
|
TRUTH
IN LEASING STATEMENT UNDER SECTION 91.23 OF THE
FAR's.
|
WITHIN
THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THIS AGREEMENT, THE AIRCRAFT
HAS BEEN INSPECTED AND MAINTAINED AND IN ACCORDANCE WITH THE FOLLOWING
PROVISIONS OF FAR:
CHECK
ONE:
|
o
|
91.409
(f) (1): A continuous airworthiness inspection program that is part of a
continuous airworthiness maintenance program currently in use by a person
holding an air carrier operating certificate or an operating certificate
issued under FAR Part 121, 127, or 135 and operating that make and model
aircraft under FAR Part 121 or operating that make and model under FAR
Part 135 and maintaining it under FAR
135.411(a)(2)
|
|
x
|
91.409
(f) (2): An approved aircraft inspection program approved under FAR
135.419 and currently in use by a person holding an operating certificate
issued under FAR Part
135.
|
|
o
|
91.409
(f) (3): A current inspection program recommended by the
manufacturer.
|
|
o
|
91.409
(f) (4): Any other inspection program established by the registered owner
or operator of the Aircraft and approved by the Administrator of the
Federal Aviation Administration in accordance with FAR 91.409
(g).
|
THE
PARTIES HERETO CERTIFY THAT DURING THE TERM OF THIS AGREEMENT AND FOR OPERATIONS
CONDUCTED HEREUNDER, THE AIRCRAFT WILL BE MAINTAINED AND INSPECTED IN ACCORDANCE
WITH THE PROVISIONS OF FAR:
CHECK
ONE:
o 91.409
(f)
(1) x 91.409
(f)
(2) o 91.409
(f)
(3) o 91.409
(f) (4)
LESSEE
ACKNOWLEDGES THAT WHEN IT OPERATES THE AIRCRAFT UNDER THIS AGREEMENT, IT SHALL
BE KNOWN AS, CONSIDERED, AND IN FACT WILL BE THE 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, GENERAL AVIATION DISTRICT
OFFICE, OR AIR CARRIER DISTRICT OFFICE.
THE
PARTIES HERETO CERTIFY THAT A TRUE COPY OF THIS AGREEMENT SHALL BE CARRIED ON
THE AIRCRAFT AT ALL TIMES, AND SHALL BE MADE AVAILABLE FOR INSPECTION UPON
REQUEST BY AN APPROPRIATELY CONSTITUTED IDENTIFIED REPRESENTATIVE OF THE
ADMINISTRATOR OF THE FAA.
* * *
[***]
Confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment
request.
9
IN WITNESS WHEREOF, the Owner
and the Lessee have each caused this Aircraft Lease Agreement to be
duly executed as of the Effective Date.
|
OWNER:
LW
AIR I LLC
|
|||
|
|
By:
|
/s/ Xxxxx Xxxx | |
| Print: | Xxxxx Xxxx | ||
| Title: | Managing Member | ||
|
|
By:
|
/s/ Xxxxxx X. Xxxxx | |
| Print: | Xxxxxx X. Xxxxx | ||
[***]
Confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment
request.
10
Exhibit
A
Aircraft
Make/Model
Piaggio
P-180
FAA Registration
No.
N189SL
Serial
Number
1181
Operating Base
Airport
KPIE
Controlling State
Law
Florida
[***]
Confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment
request.
11
Exhibit
B
Hourly
Rent: $[***] per hour.
Rent Payment
Date: Rent shall be paid monthly by Lessee to Owner within 5
Business Days of the conclusion of each month or as otherwise agreed to by the
parties.
[***]
Confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment
request.
12
