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EXHIBIT 10.D.1
AIRCRAFT LEASE
Agreement for lease of aircraft made on March 31, 1999, between Gravity Pilot,
Inc.("lessor"), and Skydive USA ("lessee").
In consideration of the mutual promises contained in this agreement, the
parties agree as follows:
SECTION ONE.
LEASE OF AIRCRAFT
Lessor leases to lessee, for the rental and on the terms and conditions
contained in this agreement, the aircraft, its accessories and equipment,
referred to as the leased property, described in the schedule, marked Schedule
1, attached and, by this reference, incorporated into this agreement, for terms
as follows:
Term. lessor leases the leased property to lessee for a term of twelve (12)
months, beginning on the day of delivery of the leased property and ending at
the expiration of twelve (12) months thereafter. After the first term, the lease
is renewable for successive terms of twelve (12) months each, but not to exceed
twenty (20) renewal terms, at the option of lessee. At any time during the
renewal of this agreement (but this cancellation provision shall not apply to
the first term), either party shall be entitled to cancel the lease on first
giving ninety (90) days written notice prior to the date as of which
cancellation is desired to be effective.
SECTION TWO.
RENT
a. For the use of the aircraft, its accessories and equipment, lessee agrees to
pay to lessors rent in the amount $21,176.00 per month during the term of the
lease, including any renewal, payable on the first day of each month.
b. Such payments shall be made at the offices of lessors or if rentals due or to
become due are assigned, at the principal office of the assignee. Such payment
shall be made in sufficient time to reach the designated place of payment so
that the payment can be collected on or before the due date. Interest shall be
paid on each delinquent installment of rent from the tenth day after the due
date until the payment shall have been collected at the designated place of
payment at the rate of nine percent (9%) per year.
c. additional rent of $35.00 shall be made for each hour of flight of the leased
aircraft. Such additional rent shall be paid to the Gravity Pilot Engine Reserve
Account ("reserve account") as described in Schedule 2(c), attached hereto. All
records regarding the reserve account will be inspected by lessor on a monthly
basis by cross-referencing the contribution to the reserve account with the
relevant flight records for the leased aircraft.
SECTION THREE.
FINANCING BY LESSOR FOR PAYMENT OF AIRCRAFT
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a. Lessor may borrow money for the purpose of financing payments of the purchase
price of the leased property under this lease or any part thereof, and in that
connection may, as security, give the lender a security interest or as the case
may be or xxxx of sale to secure any debt or other lien on the property;
provided, however, that any such security interest or other lien or security
instrument shall contain a provision expressly making the liens of the security
instruments subject and subordinate to the rights of lessee under this lease, so
long as lessee is not in default under the provisions of this agreement.
x. Xxxxxx may assign to the lender all or such of lessor rights under this
agreement, including rentals, claims, and rights to moneys due or to become due,
as may be necessary or desirable to provide further security to the lender.
After any such assignment, the terms and provisions of this lease may not be
altered, modified, or waived without the written consent of the assignee, but no
such assignment shall operate to relieve lessor of their obligations and duties
under this agreement.
SECTION FOUR.
INSPECTION AND EXAMINATION
Lessor and any insurance company or companies insuring the leased property are
given the right and privilege, from time to time, to inspect the leased
property, and to examine the books and records relating thereto, on the premises
of lessee, or wherever located, if, in the sole judgment of lessor or insurer,
the inspection is deemed necessary.
SECTION FIVE.
PERMANENT BASE OF AiRCRAFT
a. Lessor shall deliver the aircraft to lessee, at Palm Beach County Glades
Airport, 0000 Xxxxx Xxxx, Xxxxxxx, Xxxxxxx 00000. Lessee agrees to use the
aircraft in the areas as specified in the insurance policy or policies
applicable to the aircraft.
b. The aircraft shall be permanently based at Palm Beach County Glades Airport,
0000 Xxxxx Xxxx, Xxxxxxx, Xxxxxxx 00000, and such permanent base location shall
not be changed without the prior, express, and written consent of lessor and any
holder of any security interest in the leased property.
SECTION SIX.
COMPLIANCE WITH LEASE
Lessee covenants and agrees to accept this lease on the terms set forth, to pay
the rentals and other charges provided, and to comply with all of the other
terms of this agreement.
SECTION SEVEN.
MAINTENANCE OF AIRCRAFT
Lessee covenants and agrees, at its own cost and expense, to maintain the leased
property in mechanical condition adequate to comply with the laws, rules,
orders, ordinances, and regulations of the United States Of America, its
territories or possessions, the individual states of the United States, its
territories or possessions, or states of the United States in which the leased
property shall be used or operated, or such other countries in which
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lessee shall operate the leased property in accordance with the terms and
conditions of the insurance carrier.
SECTION EIGHT.
REPAIRS, ALTERATIONS, AND MODIFICATIONS
a. During the term of this lease, lessee, at its own cost and expense, covenants
and agrees to make all alterations, modifications, and repairs (including
replacement parts) to leased property that shall be necessary to keep and
maintain it at all times in first class mechanical condition and repair, and any
condition and repair necessary to comply with the terms of the insurance
carrier, or the Federal Aviation Administration, or the Department of
Transportation, or its successor. Any alterations, modifications, equipment
installations, or replacements made by lessee shall become and remain the
property of lessor at the expiration of this lease, in the same manner as though
the alterations, modifications, equipment installations, or replacements were in
or on the leased property at the time of the commencement of this lease.
b. Wherever practicable all repairs, servicing, and replacements of the leased
property shall be made under the direct supervision of the repair facility
approved by the manufacturer of the leased property, except such repairs,
servicing, or replacements that are of an emergency character.
SECTION NINE.
FUEL, STORAGE CHARGES, AND THE LIKE
Lessee covenants and agrees to furnish at its own cost and expense all fuels
oils, lubricants, and other materials necessary for the operation of the leased
property, to pay all storage and hangar charges, and to keep the painting and
lettering of the leased property in good condition, so that it will present a
neat appearance at all times.
SECTION TEN.
MAJOR ALTERATIONS OR MODIFICATIONS
Lessee covenants and agrees not to make or cause to be made any major or
structural alterations or modifications of the property leased under this
agreement without the prior, express, and written consent of lessor and any
holder of a security interest in the leased property.
SECTION ELEVEN.
PILOTS
Lessee covenants and agrees to operate all aircraft leased to lessee under this
lease only with a safe, careful, and licensed pilot to be selected, employed
and/or contracted for, controlled and paid by lessee, such pilots being
conclusively presumed to be the agents of lessee only. Lessee shall require
pilots to operate the aircraft with reasonable care and diligence, and to use
every reasonable precaution to prevent loss or damage to the aircraft, and to
prevent injury to third persons, or property of third persons; and on written
complaint from lessor specifying any reckless or abusive handling of the
aircraft leased under this agreement, lessee shall remove any such pilot and
substitute therefor a careful and safe pilot, as soon as it is reasonably
possible to do so.
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SECTION TWELVE.
PUNCTUALITY IN PAYMENTS
Lessee covenants and agrees that punctuality in the payments, rent, and other
charges stipulated in this lease and which shall be of the essence of this
lease, and such rental payments and other charges cannot be waived or extended
for any cause whatever, except as expressly provided for in this agreement.
SECTION THIRTEEN.
COMPLIANCE WITH LAWS
a. Lessee covenants and agrees to comply with all of the laws, rules, orders,
ordinances, and regulations of the United States of America, its territories or
possessions, and of any other country, state, municipality, or any
duly-constituted authority regarding the use, operation, or possession of an
aircraft, and will indemnify lessor from any and all fines, forfeitures, or
penalties arising out of any violation.
b. Lessee further agrees not to use or operate the leased property in violation
of any such law, rule, ordinance, orders, or regulations.
c. Lessee shall be liable to lessor for the loss of any of the leased property
caused by the confiscation thereof by any public authority by reason of illegal
use thereof by lessee or its agents, servants, or employees. On any such
confiscation all rentals remaining due under this lease for any aircraft
confiscated shall become legally due and payable, in addition to other remedies
of lessors or either of them to enforce rights and claims arising by reason of
the confiscation.
SECTION FOURTEEN.
ASSIGNMENT OF LEASE
a. Lessee covenants and agrees that it will not, during either the first term or
any renewal, assign this lease or any interest in it or sublease of the leased
property or any of it without the prior written consent of lessor during the
first term of this lease or during any renewal. Such consent will not, in any
event, be unreasonably withheld. During any term lessee will not assign, pledge,
or encumber the leased property in any manner or permit liens to become
effective on the property.
b. In the event any lien, attachment, levy, or other encumbrance of any kind is
levied or placed or threatened to be levied or placed on or against the leased
property, lessee will immediately send the lessor written notice and will
indemnify lessor against any and all expenses, including, but not limited to,
those arising out of any lawsuit and damage incurred or caused by any such lien,
attachment, levy, or other encumbrance.
SECTION FIFTEEN.
TRANSFER ON TERMINATION
Lessee covenants and agrees, on termination of this lease for any cause, lessee
will promptly return the leased property to lessor in the same condition in
which it was received by lessee, ordinary wear and tear and natural depreciation
and loss or damage
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for which lessor are reimbursed by insurance excepted; and will promptly execute
any and all papers necessary to effect the transfer to lessor.
SECTION SIXTEEN.
IDENTIFICATION OF AIRCRAFT
Lessee covenants and agrees that it will attach to the outside of the body of
the leased aircraft a stencil or plaque in a manner to comply with the laws, if
any, of the United States of America, its territories or possessions, or any
state or country where licensed and operated, to protect and show the interest
of lessor.
SECTION SEVENTEEN.
TAXES
a. Lessee covenants and agrees to pay when due all personal property taxes,
sales taxes, use taxes, taxes on lease rentals, sales consummation taxes, any
special taxes imposed or charges of any kind on or in respect to the leased
property for the use, operation, or possession thereof, and other taxes
applicable to the leased property, except net income and franchise taxes of
lessor, that become effective during the term of this lease.
b. In respect to any such taxes or charges assessed or imposed directly against
lessee, lessee agrees to furnish satisfactory evidence to lessor of the paying
of such taxes or charges.
c. In respect to any such taxes or charges assessed or imposed directly against
lessor, or taxes or charges assessed or imposed directly against lessee which
lessor, for any reason, shall be compelled to pay, lessee agrees, except as
herein expressly provided, to pay the taxes or charges, within ten (10) days
after receiving a xxxx from lessor for the taxes or charges. In the event that
lessee fails to pay such xxxx, together with all penalties and forfeitures
imposed, within such time, the unpaid xxxx shall bear interest at the rate of
nine percent (9%) per year commencing at the end of the above-stated ten-day
period.
d. Lessee shall have the right to dispute or contest in good faith and at
lessee's expense, the payment of any such taxes or charges assessed or imposed
directly against lessor, and/or lessee. During the period that any such taxes or
charges are being contested in good faith, payment of the contested taxes or
charges in accordance with the terms of this lease may be delayed until final
determination has been made of the amount due.
SECTION EIGHTEEN.
COOPERATION WITH LESSOR
Lessee covenants and agrees to execute and deliver to lessor any and all
instruments and documents that may be reasonably necessary to protect lessor's
interest under this lease or the interest of any holder of a security interest
in the leased property.
SECTION NINETEEN.
RECORDING AND REGISTRATION FEES
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a. Lessee covenants and agrees to pay licensing, registering, and recording
fees, including fees for the proper recording or registering of this lease or
any assignments of the lease and any security instrument that lessor may give as
security to any assignee of lessor.
x. Xxxxxx, on lessee's written request, accompanied by payment in full, shall
purchase any licenses necessary for the use and operation of the leased
property.
SECTION TWENTY.
INDEMNIFICATION OF LESSOR
a. Lessee covenants and agrees, except with respect to an insured loss to the
property leased under this agreement to the extent of the collectible insurance,
to indemnify lessor against any and each loss, claim, and/or liability,
regardless of the nature, including attorney fees and other expenses or
liabilities, imposed by law or otherwise, on lessor arising out of the use or
operation of the leased property during the period the aircraft is leased under
this lease.
b. Without in anyway limiting the generality of the above, during the term of
this lease, lessee shall indemnify lessor against any and all claims arising
from any loss, injury, damage, or claims, including injuries to or death of
passengers or third persons, and damage to or destruction of property, public or
private, arising out of, or in connection with, the operation or maintenance of
the aircraft while in possession of the lessee, its sublessees, bailees, agents,
or representative.
SECTION TWENTY-ONE.
INSURANCE
a. Beginning with and at all times during the term of this lease and any renewal
as provided in this agreement, lessee shall at its own expense, procure and
maintain, in full force and effect, insurance written by responsible insurance
companies approved in writing by lessor. Such insurance shall cover lessor and
any other persons or corporations having an interest in the aircraft as their
interests may appear against all liability for loss, injury, damage, or claims
caused by or arising out of, or in connection with, the operation or maintenance
of the aircraft, including injuries to or deaths of passengers or third persons,
and damage to or destruction of property, public or private. All insurance shall
be in form and amount approved by lessor.
b. Without in any way limiting the generality of the above, lessee shall keep
and maintain the following types of insurance in amounts with minimum limits
acceptable to lessor or its assigns: (1) passenger liability insurance, (2)
bodily injury insurance, (3) property damage insurance, and (4) excess coverage
insurance, to be applicable to the three classes of risks mentioned above.
c. In addition to the above, during the term of the lease, lessee shall, at is
own expense, procure and maintain on the aircraft whole insurance policies
written by responsible insurance companies, such policies to be approved by
lessor or its assigns as to amounts and form. Each such policy shall include
for the benefit of lessor a breach of warranty endorsement without a
"components parts" clause. In the event of total loss, lessee may not,
without the written consent of lessor or its assigns, effect negotiation and
settlement with the insurance companies or any policies. Such policies shall
expressly provide that the insurer shall give lessor or its assigns at least
thirty (30)days' written notice of cancellation or material change in policy
coverage. The
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proceeds of the insurance, at the option of lessor, shall be applied (1)
towards the replacement, restoration, or repair of the aircraft, or (2)
toward the payment of the obligations of lessee under this agreement. Lessee
appoints lessor as lessee's attorney in fact to make claims for, receive
payment of, and execute and endorse any and all documents, checks, or drafts
for the loss or damage under any insurance policy.
d. Lessee agrees to follow strictly the requirement stated in any applicable
insurance policy or policies pertaining to the operation of the aircraft and
further agrees not to so act or to fail to act as to cause the insurance
coverage to be impaired. A violation of any of these agreements shall entitle
lessor of the lease outstanding at the time to cancel the lease in addition to
any other remedies provided by law.
e. A certificate of insurance evidencing the above-described coverage will be
furnished lessor as soon as possible after the closing of the agreement, and the
policies, or true copies of them, and shall be retained in the possession of
lessor during the term of this agreement.
SECTION TWENTY-TWO
TITLE TO PROPERTY
The leased property at all times shall remain and be the sole and exclusive
property of lessor. Lessee shall have no rights of property therein but only the
right to use the property on the conditions set forth in this agreement.
SECTION TWENTY-THREE.
TERMINATION FOR BANKRUPTCY OR THE LIKE
Lessor shall have the right to terminate this lease, without notice to lessee,
if lessee shall file a voluntarily petition in bankruptcy, shall make an
assignment for the benefit of creditors, or shall be voluntarily or
involuntarily adjudicated as bankrupt by any court of competent jurisdiction; or
if voluntary or involuntary proceedings for reorganization are filed by or
against lessee, or if a receiver shall be appointed for lessee's business and is
not discharged within 30 days thereafter, or if lessee shall have permitted or
suffered any lien, distress, attachment, levy, or execution to attach to or to
be made levied against any or all of the property of lessee, not promptly
discharged.
SECTION TWENTY-FOUR
DEFAULT FOR NONPAYMENT OF RENTALS
a. In the event lessee shall fail to make any of the rental or other payments
provided in this agreement, or fail to comply with any of the other terms and
conditions of this lease and the failure to comply with any of the other terms
and conditions of this lease shall continue for ten (10) days after written
notice from lessor to lessee, lessor shall have the right at their option,
cumulative of all other rights, to declare this lease in default and declare the
entire unpaid rental immediately due and payable. At any time that lessee is in
default under any of the terms and conditions of this lease, by declaration or
otherwise, lessor may take possession of the leased property, including all
parts, accessories, and equipment, and after such possession is taken all of
lessee's rights in the leased property shall then cease and terminate.
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x. Xxxxxx'x remedies in place of lessee's default shall be cumulative and lessor
may exercise any and all other lawful remedies they may have by virtue of
lessee's breach of this lease, by declaration or otherwise.
c. In the event of default and lessor's taking or deserving to take possession
of the leased property, lessee does hereby waive any procedure, whether
statutory or otherwise, in order to immediately place the leased property in
lessor's possession. Lessee further agrees to turn over the leased property to
lessor, or their attorneys, agents, or servants, the right to enter the premises
where the leased property is stored, for the purpose of securing possession of
the property.
SECTION TWENTY-FIVE.
FAILURE OF AIRCRAFT TO FUNCTION
Lessor shall not be liable to lessee for loss of use of the leased property or
interruption of lessee's business if the leased property fails to function, or
to be out of use for repairs or services, or for any other cause whatever.
SECTION TWENTY-SIX
TOTAL DESTRUCTION OF AIRCRAFT
a. In the event of the total destruction of the leased aircraft, the term
created, or any renewal of it, shall terminate immediately, and, subject as
provided below, lessee and lessor shall then be relieved of any further
obligation related to the surrender of the aircraft.
b. The net proceeds of insurance carried on the leased aircraft pursuant to the
provisions of Section Twenty shall, in the event of the total destruction of the
leased aircraft, be made payable and shall be paid to lessor. If lessee elects
within thirty (30) days of such total destruction to enter into a lease with
lessor substantially identical with this lease, in respect of a different
aircraft, the rental payable under the new lease shall be calculated using a
cost factor of the difference between the net insurance proceeds and the
acquisition cost to lessor of the different aircraft, that will form the subject
matter of the lease.
c. Net insurance proceeds, as used, is defined as the amount received from the
insurance company less any liens on the aircraft.
SECTION TWENTY-SEVEN.
ENTIRE AGREEMENT
This agreement constitutes the entire agreement between the parties, and any
prior understanding or representation of any kind preceding the date of this
agreement shall not be binding on either party except to the extent incorporated
in this agreement.
SECTION TWENTY-EIGHT.
MODIFICATION OF AGREEMENT
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Any modification of this agreement or additional obligation assumed by either
party in connection with this agreement shall be binding only if in writing
signed by each party or an authorized representative of each party.
SECTION TWENTY-NINE.
NO WAIVER
The failure of either party to THIS agreement to insist on the performance of
any of the terms and conditions of this agreement, or the waiver of any breach
of any of the terms and conditions of this agreement, shall not be construed as
thereafter waiving any such terms and conditions, but the terms and conditions
shall continue and remain in full force and effect as if no such forbearance or
waiver had occurred.
SECTION THIRTY.
GOVERNING LAW
This agreement shall be governed by, construed, and enforced in accordance with
the laws of New York
SECTION THIRTY-ONE.
PARAGRAPH HEADINGS
The titles to the paragraphs of this agreement are solely for the convenience of
the parties and shall not be used to explain, modify, simplify, or 8ID in the
interpretation of the provisions of this agreement.
SECTION THIRTY-TWO.
NOTICES
a. All notices required to be given under the terms of this lease, or that any
party to this agreement may desire to give to the other, shall be in writing,
signed by or on behalf of the party giving the same, and sent by United States
registered mail addressed to the other party. All notices from lessor to lessee
shall be addressed to lessee at Skydive, USA at Pa]m Beach County Glades
Airport, 0000 Xxxxx Xxxx, Xxxxxxx, Xxxxxxx 00000, or at such other address as
lessee shall hereafter furnish to lessor, in writing.
b. All notices from lessee to lessor shall be addressed to first lessor at Halo
Holdings of Nevada, Inc., 0000 Xxxxxx Xxxx, Xxxx Xxxxx, Xxxxxxx 00000, and such
other address as first lessor shall hereafter furnish to lessee in writing.
SECTION THIRTY-FOUR.
EFFECT OF PARTIAL INVALIDITY
The invalidity of any portion of this agreement will not and shall not be deemed
to affect the validity of any other provision. In the event any provision of
this agreement is held to be invalid, the parties agree that the remaining
provisions shall be deemed to be in full force and effect as if they had been
executed by both parties subsequent to the expungement of the invalid provision.
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In witness whereof, each party to this agreement has caused it to be executed as
of the date first set forth above.
Skydive USA
By: /s/ XXXXXXXX XXXXXXXXXXX Date: 5/7/99
------------------------------ ----------------
Xxxxxxxx Xxxxxxxxxxx, President
Xxxxx X. Xxxxxxxxxxx
Gravity Pilot, Inc.
By: /s/ XXXXXXX XXXXXXXX Date:
---------------------------------
Xxxxxxx Xxxxxxxx, President
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SCHEDULE 1
Amount Aircraft Model Aircraft
------ -------------- --------
Number Serial Number
------ -------------
1 Cessna Caravan 208B N9347B
20bb0050
1 Cessna 206
N9262X P206-0102
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SCHEDULE 2(c)
Payments to Gravity Pilot Engine Reserve Account shall be made to:
Joda Partnership
00000 Xxxxx Xxxxx Xxxxx Xxxx
Xxxxx 000 Xxxxx
Xxxx & Xxxxxxx, XX 00000
