EXHIBIT 10.1
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AIRCRAFT LEASE AGREEMENT
THIS AIRCRAFT LEASE AGREEMENT (the "Agreement") is made this ___ day of
_________, 2003, between American Air Network Alaska, Inc, a Nevada .
corporation, whose address is 000 X. Xxxx Xxx., Xxxxx 000, Xxxxxxxxxxxx XX.,
00000 (the "Lessee") and The CIT Group/Equipment Financing, Inc (CIT)., a
Delaware corporation whose address is 0000 Xxxx Xxxxxxxxxxxx Xxxxxxx, Xxxxx XX,
00000 (the "Lessor").
A. Lessor is the owner of the following Aircraft (the "Aircraft"):
MANUFACTURER: LearJet
MODEL: 35A
SERIAL NUMBER: 298
REGISTRATION NUMBER: N298NW
ENGINE MODEL: TFE-731-2-2B
ENGINE SERIAL NUMBERS: P-74799 and P-74805
MANUFACTURER: Xxxx Jet
MODEL: 35A
SERIAL NUMBER: 156
REGISTRATION NUMBER: N35WE
ENGINE MODEL: TFE-731-2-2B
ENGINE SERIAL NUMBERS: P-74675 and P-74266
Together with all attachments, accessories, appliances, additions,
substitutions, instruments, avionics and other miscellaneous equipment as more
specifically set forth in Schedule A, attached hereto and incorporated herein by
this reference, all of which are included in the term "Aircraft", set forth in
this Agreement.
B. Lessee desires to lease the Aircraft, and Lessor is willing to lease the
Aircraft to Lessee, for the term and purposes, and on the terms and conditions,
set forth in this Agreement.
NOW THEREFORE, Lessor and Lessee agree as follows:
1. USE OF AIRCRAFT. Lessor hereby grants to Lessee the right to use the
Aircraft on the terms and conditions set forth in this Agreement.
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2. TERM. The term of this Agreement is eighteen months and shall commence
on ________, 2003_ and shall continue until ____________, 2005 unless terminated
or extended pursuant to any provision contained herein.
3. PAYMENTS TO LESSOR.
(A) Lessee shall pay to Lessor rent (the "Rent") at the rate of Twenty
Eight Thousand U.S. Dollars ($28,000.00) per month, without demand, offset,
deduction or counterclaim. Lessee shall pay Lessor prior to the commencement
date stated in paragraph 2 above the sum of One Hundred and Six Thousand One
Hundred and Ten U.S. Dollars ($106,110.00) that shall represent the first
month's payment plus a Seventy Eight Thousand One Hundred and Ten Dollar
($78,110.00) security deposit (the "Security Deposit") Payments for subsequent
months shall be made on or before the first day of the month. The Rent payment
entitles Lessee to no more than eighty (80) flight hours per month. For every
hour flown over the 80 hour per month limit, Lessee will reimburse Lessor an
additional Two Hundred U.S. Dollars ($125.00), payable at the end of each
quarter.
(B) In addition to the monthly payment, Lessee shall pay to Lessor MSP
engine reserve hourly charges at a rate of $335 per aircraft U.S. Dollars
($335.00) per hour flown.
(C) Any moneys owed to Lessor by Lessee, including, but not limited to
Rent and engine reserves not be received for any reason within thirty (30) days
after the date in which such moneys became due, Lessee shall pay to Lessor
interest on such moneys at the highest interest rate allowed by law. Interest
shall accrue from the date moneys were first due.
(D) Within 5 days after the end of each month Lessee shall provide to
Lessor a statement of the previous months flight hours together with a check in
the amount due at the rate described in Section 3(B) above.
(E) At all times during the term of this Agreement, Lessee shall
maintain with Lessor the Security Deposit in cash as security for the full and
faithful observance and performance of all of Lessee's obligations under this
Agreement (expressly including without limitation, the payment as and when due
of the amounts due under Sections 3 (A) and (B) above and any other amounts
payable thereunder) and the payment of any and all other damages for which
Lessee shall be liable by reason of any act or omission constituting a breach of
such obligations. If at any time Lessee shall be in default in the payment of
any amount payable hereunder or shall otherwise be in breach in the observance
or performance of any of its obligations under this Agreement, at Lessor's
election, the Security Deposit may be applied by Lessor to the payment of such
amount or the payment of any costs and expenses incurred by Lessor in curing any
such breach. If as a result of any such application the Security Deposit shall
be at any time be less than Seventy Eight One Hundred and Ten Thousand U.S.
Dollars ($78,110.00) Lessee shall, within five (5) days after demand from
Lessor, deposit with Lessor additional cash in an amount equal to the
deficiency. If at the expiration of the term of this Agreement, all amounts due
under this Agreement
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have been paid by Lessee to Lessor, and Lessee is not in default in the
observance or performance of any of its obligations under this Agreement, then
Lessor shall return to Lessee without interest the Security Deposit [or such
amount thereof as has not been applied, or applied but replaced by Lessee, under
this Section 3 (E)] within thirty (30) days after the expiration of the term.
Lessor shall have the right to commingle the Security Deposit with its general
assets.
(F) Lessee is responsible for any applicable rental or use taxes
4. DELIVERY AND ACCEPTANCE. The Aircraft shall not be leased by Lessor to
the Lessee and the Lessee shall have no right to possession of the Aircraft
until the following conditions precedent have been fulfilled:
(A) The Lessor has received evidence of the insurance coverage required
under Section 10 hereof.
(B) Lessee has accepted delivery of the Aircraft and duly executed the
Delivery and Acceptance Certificate attached hereto as Exhibit I and
incorporated herein by reference for all purposes.
(C) The initial lease payment and Deposit have been received pursuant to
Section 3(A) above.
5. AIRCRAFT OPERATION.
(A) During the term hereof and any extensions thereafter, Lessee agrees
the Aircraft and the engines shall be operated in accordance with the Aircraft
Flight Manual, Pilot's Operating Handbook, the applicable Engine Maintenance
Manual, other instructions issued by the Equipment Manufacturer and the
operation of the Aircraft and the engines shall comply with the requirements of
FAA Regulations.
(B) Lessee shall, at its sole expense, provide all crewmembers required
for operation of the Aircraft during the term of this Agreement. All crewmembers
must be qualified to Lessee's insurance company's standards to fly the Aircraft.
(C) Lessee shall pay all expenses in preparation and connection for any
flight, including but not limited to, expenses for fuel, crew quarters, landing
fees, imposts, duties, fines, meals, all other out-of pocket crew expenses and
the cost of any special equipment required for Lessee's business.
(D) Lessee will not use the Aircraft to haul freight of any kind.
(E) Lessee will operate the Aircraft only on hard-surfaced runways.
(F) Lessee will not operate the Aircraft outside the continental United
States boundaries without Lessor's prior consent.
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(G) Lessee shall, at its sole expense, provide hanger storage at Lessee's
facility at 0000 X. Xxxxxxxxxxxxx Xxxxxxx Xxxx, Xxxxxxxxx, XX., 00000 at all
times when Aircraft not in use.
(H) Aircraft will not be used for training purposes, other than initial
pilot checkout.
(I) Lessor shall have the right to show the Aircraft to prospective
customers subject to Aircraft scheduling. Lessor will provide seventy-two (72)
hours advance notice.
6. MAJOR DAMAGE. In the event the Aircraft shall have suffered any major
damage or loss of a type required to be reported to the FAA or recorded in the
Aircraft Log Books for the Aircraft under FAA regulations governing the use of
the Aircraft or loss of any Aircraft Log Books (hereinafter referred to as
"Damage History"), and subsequently shall have been returned to service, Lessor
and Lessee shall upon delivery of the Aircraft to Lessor under Section 11 below,
determine the amount of loss in value, if any, suffered by the Aircraft due to
such damage or loss. Lessor and Lessee shall determine such amount by requesting
bids for the purchase of the Aircraft from Dealers in such Aircraft, qualified
to render such offers and not affiliated with Lessor and Lessee. Each of Lessor
and Lessee shall select one dealer and the two dealers shall select the third
dealer. Each dealer shall render one bid, based upon a description of the
Aircraft assuming no Damage History and a second bid based upon a description of
the Aircraft including the Damage History recorded in the Log Books for the
Aircraft. The difference between the average of all bids received for the
Aircraft assuming no Damage History and the average value of all bids received
for the Aircraft including the actual Damage History, together with interest
thereon for the period between the end of the lease term until the date of
payment at a rate equal to one percent per month, shall be paid by Lessee to
Lessor in the form of a lump sum payment within 10 days after the last of the
three dealers renders its bids. In addition, Lessee shall pay all fees, costs,
and other expenses incurred due to and/or associated with the determination of
the Aircraft's amount of loss in value in the event of Damage History including,
but not limited to, payment of all fees, costs, and other expenses associated
with each and every dealer's rendition of a bid as set forth above. If Damage
History occurs, as defined in this Section 6, Lessee agrees to pay Rent per
Section 3A under all circumstances until the Aircraft is returned to the Lessor
in a flyable condition or until reimbursed in full by Lessee's insurance company
and returned to service.
7. LESSOR'S INSPECTION. Lessor or its authorized representatives may at all
reasonable times inspect the Aircraft and the books and records of Lessee
relating thereto. All records must at minimum be maintained to compliance with
FAR 43.9. Any cost associated with correction of any deficiencies in regards to
the books and records (including the cost of review) will be for the account of
the lessee.
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8. MAINTENANCE AND REPAIRS.
(A) Lessee represents that at the time of delivery, the Aircraft is in
good operating condition with all systems functional and operational as
acknowledged and evidenced by Lessee's execution of the Delivery and Acceptance
Certificate in the form of Exhibit I attached hereto. During the term of this
Agreement and until such time as the Aircraft is returned to Lessor, Lessee
agrees, at its own cost and expense, to keep the Aircraft at all times in fully
operational, duly certified and airworthy condition and maintained in accordance
with the Aircraft manufacturer's recommended inspection program and condition
adequate to comply with all regulations of the FAA or any other Aircraft
governmental agency having jurisdiction over the maintenance, use or operation
of the Aircraft. Without limiting the foregoing, Lessee, at its own cost and
expense, shall
(i) Maintain, inspect, service and test the Aircraft and perform
all repairs on the Aircraft in accordance with all maintenance manuals for the
Aircraft from time to time issued by the Aircraft manufacturer and vendors;
(ii) Comply with all applicable recommended and mandatory Service
Bulletins issued by the Aircraft manufacturer; and
(iii) Comply with all Airworthiness Alerts and Airworthiness
Directives issued by the FAA or any other governmental agency having
jurisdiction over the Aircraft.
(B) Lessee shall operate the engines according to the manufacturer's
operator handbook or flight manual. In the event any negligent overtemping or
exceedences of tolerances are detected, the cost of any parts/components
requiring replacement, including the cost of labor to replace any
parts/components as a result of overtemping or exceedence of tolerances shall be
paid for by Lessee.
(C) All work required by this Section 8 shall be undertaken and
completed only by an authorized factory service center or a service entity
acceptable to Lessor. All replacement parts shall be of the type approved by the
Aircraft manufacturer, be of the same quality as the replaced part, and become
the property of Lessor free and clear of all liens, charges and encumbrances
upon installation.
9. LOSS OR DAMAGE.
(A) RISK OF LOSS. During the term of this Agreement and until such time
as the Aircraft is returned to Lessor, Lessee hereby assumes and bears the
entire risk of loss, theft, confiscation, damage to or destruction of the
Aircraft from any cause whatsoever, and shall promptly notify Lessor thereof.
Except as otherwise provided in Section 9(B) below, this Lease shall not
terminate and the obligations of Lessee shall not be affected by reason of any
damage to or loss of the Aircraft.
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(B) CASUALTY OCCURRENCE. In the event of a Casualty Occurrence, Lessee
shall be obligated to pay Lessor the amount of the all-risk aircraft hull and
engine insurance referred to in Section 10 below (hereinafter referred to as the
"Stipulated Loss Value").
Upon payment in full of the Stipulated Loss Value, the Aggregate Rentals for the
Aircraft shall cease to accrue as of the date of such payment, the Lease shall
terminate, and (except in the case of the loss, theft, confiscation or complete
destruction of the Aircraft and subject to the rights of the insurer following
payment of the settlement to request transfer of title and possession of the
Aircraft) Lessee shall be entitled to recover possession of the Aircraft and
obtain title thereto.
As used herein, a "Casualty Occurrence" shall mean any of the following events
with respect to the Aircraft:
(i) Loss of the Aircraft or the use thereof due to the
destruction, damage beyond repair or rendition of the Aircraft permanently unfit
for normal use for any reason whatsoever;
(ii) Any damage of the Aircraft that results in an insurance
settlement with respect to the Aircraft on the basis of a total loss;
(iii) The theft or disappearance of the Aircraft which shall have
resulted in the loss of possession of the Aircraft by Lessee for a period of
thirty (30) consecutive days or more (or for a shorter period ending on the date
on which there is an insurance settlement for a total loss on the basis of the
theft or disappearance of the Aircraft);
(iv) The condemnation, confiscation, seizure of, or the
requisition of title to or use or possession of, the Aircraft for a period of
thirty (30) consecutive days or more;
(v) The operation or location of the Aircraft, while under
condemnation, confiscation, seizure or requisition, in any area excluded from
coverage by any insurance policy in effect with respect to the Aircraft required
by the provisions of Section 10 hereof; or
(vi) Any event other than a default where Lessee is obligated to
pay to Lessor the Stipulated Loss Value under this Lease.
10. INSURANCE.
(A) Lessee, at its expense, shall secure and maintain in effect
throughout the term hereof insurance policies with an insurance carrier
agreeable to Lessor covering the Aircraft against a Casualty Occurrence and
containing such provisions as shall be satisfactory to Lessor in Lessor's sole
discretion. Without limiting the generality of the foregoing, Lessee shall
maintain:
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(i) Liability insurance covering public liability and property
damage including resulting environmental damage in amounts not less than $48
million for any single occurrence with Lessor and American Air Net Work Alaska,
Inc. named as an additional insureds,
(ii) All-risk aircraft hull and engine insurance including,
without limitation, foreign object damage insurance covering the aircraft while
on the ground, taxiing and in flight, in an amount which is not less than One
Million Six Hundred Seventy Five Thousand U.S. Dollars ($1,675,000.00) for Xxxx
Xxx 00X x/x 000 xxx Xxx Xxxxxxx Xxxx Xxxxxxx and Fifty Thousand ($1,450,000.00)
of Xxxx Jet 35A s/n 156 (any deductible shall be paid to Lessor by Lessee),
(iii) Breach of warranty insurance, and
(iv) Confiscation and war risk insurance.
(B) All insurance policies shall name the Lessor as owner of the
Aircraft and as loss payee as stipulated in the insurance certificate furnished
herewith, except with respect to insurance under the clause 10(A)(i), such
insurance to also include
(i) Shall provide that any cancellation or substantial change in
coverage shall not be effective as to any assured for thirty (30) days after
receipt by such assured of written notice from such insurer(s) of such
cancellation or change and
(ii) Shall contain an endorsement providing for payment by the
insurer(s) to Lessor or its affiliates, as the case may be, despite any
misrepresentations or breach of warranty by Lessee or any other person.
Such insurance shall not be subject to any offset by any other insurance carried
by Lessor, Lessee or any other assured.
(C) Lessee hereby appoints Lessor as Lessee's attorneys-in-fact to make
proof of loss and claim for and to receive payment of and to execute and endorse
all documents, checks or drafts on behalf of Lessee in connection with all
policies of insurance in respect of the Aircraft other than insurance under
clause 10(A)(i).
(D) Any reasonable out-of-pocket expense of adjusting or collecting
insurance proceeds other than insurance under clause 10(A)(i) shall be borne by
Lessee. Lessor may, in its sole discretion, apply proceeds of insurance, in
whole or in part, to
(i) Repair or replace the Aircraft or any part thereof or
(ii) Satisfy any obligation of Lessee to Lessor hereunder, except
that in the event of a Casualty Occurrence, any insurance proceeds (other than
for liability insurance) received by the Lessor with respect to the Aircraft
shall be credited against Lessee's obligation to pay the Stipulated Loss Value
under Section 9(B) hereof.
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Such proceeds shall be used by Lessor to reimburse Lessee if Lessee has already
paid such Stipulated Loss Value in full to Lessor.
11. RETURN.
(A) LOCATION. Upon the termination or expiration of the Lease, Lessee
shall return the Aircraft, in accordance with Section 12(b) below, to a
destination of lessors choosing in the continental United States and execute a
Re-delivery and Acceptance Certificate in the form annexed as Exhibit II. All
expenses for delivery and return of the Aircraft shall be borne by Lessee. In
the event that Lessee fails for any reason whatsoever to return the Aircraft on
or before twelve o'clock noon (Central time) on the last day of the Lease,
Lessor's damages shall include, but shall not be limited to, an amount equal to
one-thirtieth (1/30th) of the monthly rental for each day that such return is
delayed.
(B) RETURN CONDITION. Upon return and at Lessee's expense, the Aircraft
must satisfy all of the following conditions:
(i) the Aircraft must be in an airworthy and serviceable
condition, with all systems functional and operational, meet all of the
applicable regulations of the FAA, have a valid standard FAA certificate of
airworthiness and be current on the manufacturer's approved maintenance program
with no outstanding or deferred items;
(ii) the Aircraft must be in compliance with all modifications,
repairs and inspections required by all applicable Airworthiness Alerts,
Airworthiness Directives, and recommended and mandatory Service Bulletins issued
during the term of the Lease that are required to be performed according to
Section 8 hereof. All such modifications, repairs and inspections shall have
been performed by a factory service center or a service entity acceptable to
Lessor;
(iii) the Lessee acknowledges and agrees that upon return of the
Aircraft, Lessor has the option of having the engines split, tested and/or
borescoped by a Xxxxx & Xxxxxxx Canada authorized service center in accordance
with accepted practices to determine if any overtemping or other exceedence has
occurred. Lessor agrees to pay for all such engine testing expenses. In the
event any negligent overtemping or exceedence of tolerances is detected, the
cost of any parts or components requiring replacement, including labor costs,
shall be the responsibility of the Lessee;
(iv) the Aircraft must be returned with all equipment, parts,
components, passenger service items and other accessories that were on or in the
Aircraft when delivered to Lessee in a serviceable condition or with an
equivalent or better replacement thereof;
(v) the Aircraft must be returned with all records and
documents, including complete originals of the logbooks. If originals are not
available,
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then any consequences of or conditions to use of new logs and new maintenance
records under FAA rules and regulations shall be observed or complied with, and
all entries therein must be complete, correct and current, and in the case of
any modifications made to, or supplemental type certificate incorporated in the
Aircraft, all engineering documents and drawings therefor must also be returned;
(vi) the Aircraft must be returned in the same condition as
received, except for normal wear. For cosmetic purposes, the following shall not
be considered normal wear: (a) stains in the interior that cannot be completely
removed, (b) chipped wood or laminate, (c) torn seats, carpet, headliner or
sidewalls, (d) scratched polarizers and (e) dents in the Aircraft fuselage,
wing, tail or horizontal stabilizer;
(vii) the Aircraft must be returned with the same quantity of fuel
as when delivered.
(viii) the Aircraft must be returned with a fresh 12 month
inspection completed by an authorized Xxxx Jet service facility or by a service
entity acceptable to Lessor within the last ten flight hours and within seven
days of Lessee's last use of the Aircraft. Such inspection will include
compliance with all discrepancies, squawks and malfunctions, or other
irregularities repaired and the Aircraft returned to service by the maintenance
facility. Lessee shall provide to Lessor a list of all discrepancies discovered
in the 12 month inspection.
(ix) Prior to return of the Aircraft, Lessor shall be entitled to
an acceptance flight of not more than two hours duration at Lessor's expense.
Lessor shall be entitled to have two (2) representatives on such flight in the
capacity of observers. Any further airworthiness discrepancies discovered during
such flight shall be promptly repaired or replaced at Lessee's sole expense
prior to re-delivery to Lessor.
(x) The Aircraft shall be clean by corporate operating standards
with all Lessees' markings removed.
(C) FAILURE TO MEET RETURN CONDITION. If Lessee does not return the
Aircraft in accordance with the above condition, Lessor may make or cause to be
made any repairs reasonably necessary to restore the Aircraft to the required
condition and Lessee shall reimburse Lessor, within five (5) days of written
demand, for any reasonable costs, expenses and fees including, without
limitation, reasonable fees and expenses for repairs and lost rentals at the per
diem rate of one-thirtieth of the monthly rental related to such restoration.
12. TAXES. Lessee shall pay, and indemnify, defend and hold harmless Lessor
from all license and registration fees and all sales, use, customs, value added,
personal property and other taxes, levies, duties, charges or withholdings of
any nature (together with any penalties, fines or interest thereon) imposed
against Lessor by any federal, state or local government or taxing authority
upon or with respect to the use or
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operation of the Aircraft hereunder, upon the rentals, receipts or earnings
arising therefrom or upon or with respect to this Agreement (other than, taxes
on, or measured by, the net income of Lessor). The obligations of Lessee under
this Section 12 shall survive the termination of this Agreement.
13. LIENS, ENCUMBRANCES AND RIGHTS OF OTHERS. Lessee will not directly or
indirectly create, incur, or permit any mortgage, pledge, lien attachment,
charge, encumbrance or right of others whatsoever on or with respect to the
Aircraft, title thereto or any interest therein at any time during the term of
the Agreement and any extensions thereafter or while the Aircraft is in the
command and control of Lessee. Lessee will promptly, at Lessee's sole expense,
cause any such mortgage, pledge, lien, attachment, charge, encumbrance or right
of others which may arise at any time to be duly discharged, dismissed and
removed as soon as possible, but in any event within ten (10) days after the
existence of the same shall have first become known to Lessee.
14. DISCLAIMER OF WARRANTIES. LESSEE ACKNOWLEDGES THAT LESSOR HAS NOT MADE
ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE TITLE, CONDITION,
AIRWORTHINESS, MERCHANTABILITY, DESIGN, OPERATION, OR FITNESS FOR USE OR A
PARTICULAR PURPOSE OF THE AIRCRAFT, AGAINST INTERFERENCE OR AS TO THE FREEDOM OF
THE AIRCRAFT FROM LIENS, ENCUMBRANCES OR RIGHTS OF OTHERS, OR ANY OTHER
REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE
AIRCRAFT.
15. INDEMNITY. Lessee hereby assumes liability for, and shall indemnify,
protect, and save harmless Lessor, its shareholders, directors, employees and
agents, from and against, and shall pay Lessor promptly upon demand the amount
of any and all liabilities, obligations, losses, damages, penalties, claims,
actions, suits, costs, expenses and disbursements, including legal expenses, of
whatsoever kind and nature, imposed on, incurred by or asserted against Lessor
in any way relating to or arising out of this Agreement or the delivery,
possession, use or operation of the Aircraft. The indemnities contained in this
Section 15 shall continue in full force and effect notwithstanding the
expiration or other termination of this Agreement.
16. DEFAULT. The following events shall constitute events of default
("Events of Default") hereunder:
(A) Lessee shall fail to make any payment to Lessor within five (5)
days after the same shall become due;
(B) Lessee shall fail to perform or observe any other covenant,
condition or agreement to be performed or observed by it hereunder and such
failure shall continue unremedied for a period of twenty (20) days after written
notice thereof by Lessor; or
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(C) Lessee shall become insolvent or bankrupt or make an assignment
for the benefit of creditors or consent to the appointment of a trustee or
receiver; or a trustee or a receiver shall be appointed for the Lessee, or for a
substantial part of its property without its consent and shall not be dismissed
for a period of fifteen (15) days, or bankruptcy, reorganization or insolvency
proceeding shall be instituted by or against Lessee and, if instituted against
Lessee, shall not be dismissed for a period of fifteen (15) days.
17. REMEDIES. Upon the occurrence of any Events of Default, Lessor may, at
its option, and at any time thereafter, do one or more of the following:
(A) Require Lessee, upon the written demand of Lessor and at Lessee's
expense, to promptly return the Aircraft to Lessor at the location, in the
condition and otherwise in accordance with all of the terms of Section 5 and 11
hereof;
(B) Enter upon the premises where the Aircraft is held, by summary
proceedings or otherwise, and recover possession of the Aircraft, all without
liability to Lessor for or by reason of such entry or recovery of possession,
whether for the restoration of damage to property caused by such entry and
recovery or otherwise.
(C) Exercise any other right or remedy that may be available to it at
law or in equity.
In addition, Lessee shall reimburse Lessor upon demand for all legal fees, other
costs and expenses incurred by reason of the occurrence of any Events of
Default, or the exercise of Lessor's remedies with respect thereto, including
all costs and expenses incurred in connection with the return of the Aircraft in
accordance with terms of Section 11 hereof or in placing such Aircraft in the
condition required by said Section. No remedy referred to in this section is
intended to be exclusive, but each shall be cumulative in addition to any remedy
referred to above or available to Lessor at law or in equity; and the exercise
or beginning of exercise by Lessor of any one or more of such remedies shall not
preclude the simultaneous or later exercise by Lessor of any or all such other
remedies.
18. ASSIGNMENT. Lessee shall not, without the prior written consent of
Lessor, whose consent may be withheld in its absolute discretion, assign any of
its rights hereunder or permit the Aircraft to be operated or used by, or in the
possession of, any party other than Lessee. Lessor may at any time assign all of
its right, title, and interest hereunder, or any part thereof, to any other
person with or without notice to Lessee.
19. RENEWAL OPTION. Provided no Events of Default has occurred and is
continuing hereunder, and no event which with the passage of time or the giving
of notice or both would constitute an Events of Default, with mutual consent of
Lessor, Lessee shall have the right to renew this Lease, subject to mutually
agreeable terms
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and conditions, for six months, provided Lessee gives written notice to Lessor
of Lessee's intent thirty (30) days prior to each renewal period.
20. NOTICES. All notices, demands and requests contemplated by this
Agreement shall be in writing and shall be deemed to have been delivered and
received if served personally or sent by United States registered or certified
mail, postage prepaid, return receipt requested, by receipt courier service or
by telegraph, addressed to the addresses set forth or such other addresses as
either party may designate by notice to the other:
If to Lessor: The CIT Group/Equipment Financing, Inc
0000 X. Xxxxxxxxxxxx Xxxxxxx
Xxxxx, XX. 00000
Attn: Executive Vice President of Credit
If to Lessee: American Air Network Alaska, Inc
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Any such notice shall be deemed delivered and received upon such personal
delivery, delivery of the telegraph or at the time of delivery or attempted
delivery shown on such return or courier receipt.
21. ATTORNEY'S FEES. In the event of any dispute, litigation or arbitration
between the parties hereto with respect to the subject matter hereof, the
unsuccessful party to such dispute, litigation or arbitration shall pay to the
successful party all costs and expenses, including, without limitation,
reasonable attorneys' fees, incurred therein by the successful party, all of
which shall be included in and as a part of the judgment or award rendered in
such dispute, litigation or arbitration. For purposes of this Agreement, the
term "successful party" shall mean the party which achieves substantially the
relief sought, whether by judgment, order, settlement or otherwise.
22. FURTHER INSTRUMENTS. Each party shall from time to time execute and
deliver such further instruments as the other party may reasonably request to
effectuate the intent of this Agreement.
23. EXECUTION AND COUNTERPARTS. This Agreement may be executed and
delivered in counterparts and by each party hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an original and all
of which taken together shall constitute one and the same instrument.
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24. NON-WAIVER OF RIGHTS AND BREACHES. No failure or delay of either party
hereto in the exercise of any right given such party hereunder shall constitute
a waiver thereof unless the time specified herein for the exercise of such right
has expired, nor shall any single or partial exercise of any right preclude
other or further exercise thereof or of any other right. The waiver by a party
hereto of any default of the other party shall not be deemed to be a waiver of
any subsequent default or other default of such party.
25. ENTIRE AGREEMENT; MODIFICATION. This Agreement constitutes the entire
agreement between the parties hereto pertaining to the subject matter hereof and
supersedes all prior agreements, understandings and representations of the
parties with respect to the subject matter hereof. This Agreement may not be
modified, amended or supplemented or otherwise changed except by a writing
executed by each of the parties and designated as a modification, amendment or
supplemental hereof.
26. NO AGENCY OR PARTNERSHIP. Nothing in this Agreement shall be deemed to
make either Lessor or Lessee an agent, partner or joint venturer of the other.
27. LESSEE CITIZENSHIP. Lessee hereby represents and warrants to Lessor
that Lessee is a citizen or permanent resident of the United States within the
meaning of title 14, Section 375.36 of the Code of Federal Regulations.
28. APPLICABLE LAW AND JURISDICTION. This Agreement shall be deemed to have
been made and executed in Maricopa county, Arizona and shall be interpreted and
the rights and liabilities of the parties hereto determined in accordance with
the laws of the State of Arizona. Lessee hereby designates the Secretary of
State of the State of Arizona as agent for the purpose of accepting service of
process within the State of Arizona. Should litigation arising out of or in any
way related to the terms, conditions, and/or subject of this matter of this
Agreement become necessary the parties further agree that the exclusive situs of
such litigation will be Phoenix, Maricopa County, Arizona. Furthermore, the
venue shall be deemed to be proper only in Phoenix, Maricopa County, Arizona,
and the courts located there shall have exclusive in personam jurisdiction over
said litigation.
29. DUE ORGANIZATION. Lessee is and will continue to be a corporation duly
organized and validly existing in good standing under the laws of the
jurisdiction of its incorporation, is and will continue to be solvent and duly
qualified to do business in good standing in each other jurisdiction where the
conduct of this business requires it to be so qualified, and has and will
continue to have the corporate power and authority to carry on its business and
to enter into and perform its obligations under this Lease Agreement.
13
30. FINANCIAL STATEMENTS. Lessee shall deliver to Lessor within thirty (30)
days after the end of each fiscal year copies of the balance sheet, income
statement, and statement of cash flows of Lessee in reasonable detail according
to generally accepted accounting principles.
TRUTH IN LEASING (See Federal Aviation Regulation FAR 91.23).
A. FOR THE TWELVE MONTHS PRECEDING THE DATE OF THIS LEASE AGREEMENT, THE
AIRCRAFT LEASED HEREUNDER HAS BEEN MAINTAINED AND INSPECTED IN ACCORDANCE WITH
FEDERAL AVIATION REGULATIONS PART 91.
B. THE AIRCRAFT WILL BE MAINTAINED AND INSPECTED UNDER PART 91. FOR
OPERATIONS UNDER THIS LEASE, LESSEE CERTIFIES THAT IT IS RESPONSIBLE FOR THE
AIRCRAFT'S STATUS OF COMPLIANCE WITH APPLICABLE MAINTENANCE AND INSPECTION
REQUIREMENTS AS SET FORTH UNDER THE REQUIRED FAA REGULATIONS APPLICABLE TO
LESSEE'S USE AND OPERATION OF THE AIRCRAFT. IN ADDITION, LESSEE AGREES TO
PROVIDE LESSOR WITH WRITTEN INSPECTION REPORTS FOR INSPECTIONS ACCOMPLISHED
UNDER SAID PROGRAM.
C. THE LESSEE IS SOLELY RESPONSIBLE FOR OPERATIONAL COMMAND AND CONTROL OF
THE AIRCRAFT AND CERTIFIES AND AGREES TO COMPLY WITH ALL REGULATIONS ISSUED
DURING THE TERM OF THIS LEASE AGREEMENT. LESSEE IS HEREBY ADVISED THAT AN
EXPLANATION OF FACTORS BEARING ON OPERATIONAL CONTROL AND PERTINENT FAA
REGULATIONS CAN BE OBTAINED FROM THE NEAREST FAA FLIGHT STANDARDS DISTRICT
OFFICE, GENERAL AVIATION DISTRICT OFFICE OR AIR CARRIER DISTRICT OFFICE.
D. THE LESSEE SHALL COMPLY WITH ALL PARTS OF THE FEDERAL AVIATION
REGULATIONS APPLICABLE TO THE OPERATION OF THIS CATEGORY AIRCRAFT, TO INCLUDE,
BUT NOT LIMITED TO CARRYING A COPY OF THIS LEASE IN THE AIRCRAFT AT ALL TIMES.
14
IN WITNESS WHEREOF, Lessor and Lessee have caused this Agreement to be duly
executed by their respective officers or representatives thereunto duly
authorized as of the day and year first above written.
LESSEE: LESSOR:
American Air Net Work Alaska, Inc. The CIT Group/Equipment Financing,.
Inc.
By: By:
------------------------------- --------------------------------
Print Name: Print Name:
----------------------- ------------------------
Title: Title:
---------------------------- -----------------------------
15
EXHIBIT I.
DELIVERY AND ACCEPTANCE CERTIFICATE
Lessor: The CIT Group/Equipment Financing, Inc
Lessee: American Air Network Alaska, Inc
Location:
---------------------------------------------------------------
Aircraft: MANUFACTURER: Xxxx Jet
MODEL: 35A
SERIAL NUMBER: 298
REGISTRATION NUMBER: N 298NW
ENGINE MODEL: TFE-731-2-2B
ENGINE SERIAL NUMBERS: P-74799 and P-74805
MANUFACTURER: Xxxx Jet
MODEL: 35A
SERIAL NUMBER: 156
REGISTRATION NUMBER: N35WE
ENGINE MODEL: TFE-731-2-2B
ENGINE SERIAL NUMBERS: P-74675 and P-74266
This certificate is delivered by the undersigned pursuant to the Aircraft
Lease Agreement dated as of ___________, 2003.
Lessor has delivered the Aircraft (including all pertinent operational
equipment and maintenance logs and manuals) as described in the Aircraft Lease
Agreement.
Lessee, or through its "Authorized Lessee's Agent" empowered by Lessee to
accept delivery of such Aircraft, has examined the Aircraft and represents that
the Aircraft is good operating condition with all systems functional and
operational. Lessee confirms that the Aircraft is of the size, design, capacity,
configuration and manufacture selected by it and irrevocably accepts said
Aircraft "As Is, Where Is" for all the above. Operation of the Aircraft will be
under FAR Part 91. All logs and records have been examined and confirmed on
Lessee's conformity inspection.
AIRCRAFT S/N 298
Delivery Date: Quantity of Fuel:
--------------------- -----------------
Total Hours:
Airframe: Left Engine: Right Engine:
--------- ---------- -------------
Total Cycles:
---------------------
16
AIRCRAFT S/N 156
Delivery Date: Quantity of Fuel:
--------------------- -----------------
Total Hours:
Airframe: Left Engine: Right Engine:
------------- ---------- ---------
Total Cycles:
---------------------
The undersigned hereby affirms that for purposes of this Certificate that they
are the Lessee or Authorized Lessee's Agent.
LESSEE LESSOR
American Air Network Alaska, Inc The CIT Group/ Equipment Financing, Inc.
By: By:
----------------------------- -------------------------------
Print Name: Print Name:
---------------------- -----------------------
Title: Title:
------------------------- ----------------------------
Date: Date:
--------------------------- -----------------------------
EXHIBIT II.
RE-DELIVERY AND ACCEPTANCE CERTIFICATE
Lessor: The CIT Group/Equipment Financing, Inc.
Lessee: American Air Network Alaska, Inc.
Location:
-----------------------------------
Aircraft: MANUFACTURER: Xxxx Jet
MODEL: 35A
SERIAL NUMBER: 298
REGISTRATION NUMBER: N 298NW
ENGINE MODEL: TFE-731-2-2B
ENGINE SERIAL NUMBERS: P-74799 and P-74805
MANUFACTURER: Xxxx Jet
MODEL: 35A
SERIAL NUMBER: 156
REGISTRATION NUMBER: N35WE
ENGINE MODEL: TFE-731-2-2B
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ENGINE SERIAL NUMBERS: P-74675 and P-74266
This certificate is delivered by the undersigned pursuant to the Aircraft
Lease Agreement dated as of , 2003.
Lessee has delivered the Aircraft (including all pertinent operational
equipment and maintenance logs and manuals) as described in the Aircraft Lease
Agreement.
Lessor, or through its "Authorized Lessor's Agent" empowered by Lessor to
accept re-delivery of the Aircraft confirms that the Aircraft is fully assembled
and in good working order and condition with all systems functional and
operational.
AIRCRAFT S\N 298
Re-Delivery Date: Quantity of Fuel:
-------------------- -----------------
Total Hours:
Airframe: Left Engine: Right Engine:
------------ ---------- -----------
Total Cycles:
---------------------
AIRCRAFT S\N 156
Re-Delivery Date: Quantity of Fuel:
-------------------- ---------------
Total Hours:
Airframe: Left Engine: Right Engine:
------------- ---------- -----------
Total Cycles:
---------------------
The undersigned hereby affirm that for purposes of this Certificate that is the
Lessor or Authorized Lessor's Agent.
LESSEE LESSOR
American Air Network Alaska, Inc The CIT Group/Equipment Financing, Inc.
By: By:
------------------------------ ------------------------------
Print Name: Print Name:
----------------------- ----------------------
Title: Title:
-------------------------- ---------------------------
Date: Date:
---------------------------- ----------------------------
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SCHEDULE A
AIRCRAFT EQUIPMENT LIST
Aircraft s/n 298
AVIONICS
FDS: F/D 109 PN 101 HFCOM: 718 U-5
A/P: JET F/C 200 FFONE: WULFSBERG VI
COM: DUAL VHF-20A GPS: GARMIN 165
NAV: DUAL VIR-30 RADAR: PRIMUS 400SL COLOR
ADF: DUAL ADF 60A CVR: XXXXXXXXX A-100
DME: DME-40 AOA:JET
XPNDR: DUAL XXXXXXX TDR-90 FDR: SUNDSTRAND F542
LOGS & LOOSE EQUIPMENT
LOG 1 0-1641.6 HOURS LOG 2 1641.6-5395.37 HOURS
LOG 3 5397.37 HOURS - 8610 HOURS LOG 4 8610-10027.9 HOURS
LOG 5 10027.9 - PRESENT
ENGINE LOG 1 P74805 12/1979 - 12-1988 (ITALIAN)
ENGINE LOG 2 P74805 1/1989 - 4/1989
ENGINE LOG 1 P74799 12/1979 - 12/1988 (ITALIAN)
ENGINE LOG 2 P74799 1/1989- 4/1989
HONEYWELL ENGINE LOG P74805 12/1979 - CURRENT
HONEYWELL ENGINE LOG P74799C 12/1979 - CURRENT
X-RAYS 12 YEAR INSPECTION
X-RAYS 12,000 INSPECTION
LIST OF MAJOR ALTERATIONS AND REPAIRS
ASSORTED WORK ORDERS AND INSPECTIONS 2001-2002
DOCUMENTS
Airworthiness Certificate Aircraft Registration
INTERIOR
Seven-passenger fire blocked interior. Configuration consist of right side
forward Lavatory and forward swivel seat and aft facing seat. Left side has two
forward facing seats and aft three place couch. The interior is completed in
Beige leather and xxxx carpet with medium reddish laminate. Cabinets for liquor
containers, ice drawer, and cup dispensers and miscellaneous storage on forward
right hand side. (reference digital photos taken 3/6/03)
AGREED AND ACCEPTED
Lessee: American Air Net Work Alaska, Inc Lessor:
--------------------------
By: By:
--------------------------------------- ----------------------------
Date: Date:
------------------------------------- --------------------------
19
SCHEDULE A
AIRCRAFT EQUIPMENT LIST
AIRCRAFT 156
AVIONICS
FDS: F/D 108 FFONE: FLITEPHONE 11
A/P: JET F/C 200 FMS: N/A
COM: DUAL VHF-20 RADAR: BENDIX RDS 82 COLOR
NAV: DUAL VIR-30 CVR: XXXXXXXXX GA-100
ADF: DUAL ADF 60A DMW: XXXXXXX DME - 40
XPNDR: XXXXXX 1014B/SPERRY TP114B COMPASS: XXXXXXX 331A-6R HSI
RADAL: ALT-50 GPS: XXXXXX 165
LOGS & LOOSE EQUIPMENT
Airframe Log 2/06/78 - 09/31/82 (small blue binder)
Airframe Log 10/31/82-12/31/82 (small blue binder)
Airframe Log 01/18/83 - 12/31/86 (large blue paperback)
Airframe Log 04/23/93- 04/23/98 (large blue paperback)
Airframe Log 05/13/98 - 09/07/00 (large 3 ring binder)
Airframe Log 09/14/00 - current (small green log book)
P74675 Engine log 03/13/79 - current (large TFE731 white 3 ring binder)
P74765 Engine log 11/28/00 - 05/24/02 (small red log book)
P74266 Engine log 03/13/79 - current (large TFE731 white 3 ring binder)
P74266 Engine log 11/28/00 - 05/24/02 (small red log book)
Record of Installations & Modifications to aircraft 11/22/82-04/23/93
(xxxx 3 ring binder)
Flight Manual FM-102
Plot's Manual PM- 02
FAA Form 337s
FAA Form 8130s
DOCUMENTS
Airworthiness Certificate Aircraft Registration
INTERIOR
Eight Passenger fire blocked interior with one side facing and 2 forward facing
executive chairs. Divan in club configuration with writing tables. Forward
coffee and storage cabinets with bar.
AGREED AND ACCEPTED
Lessee: Lessor:
--------------------------- -------------------------
By: By:
------------------------------- -----------------------------
Date: Date:
----------------------------- ---------------------------
----------------------------- ---------------------------
----------------------------- ---------------------------
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