Exhibit 10.1
AIRCRAFT DRY LEASE
This Lease of aircraft is made
effective as of January 9, 2009, by and between Intrepid
Production Holdings LLC , a Colorado limited liability company,
with an address of 700 17th St., Suite 1700, Denver, CO 80202
(“Lessor”), and Intrepid Potash, Inc., a
Delaware corporation, with an address of 700 17th St.,
Suite 1700, Denver, CO 80202
(“Lessee”).
RECITALS
The parties recite that:
WHEREAS, Lessor owns and is the
registered owner of the airframe together with the Engines, APU(s)
and all appliances, parts, instruments, avionics and appurtenances
thereto, including any replacement part(s) or engine(s) which may
be installed on the Aircraft from time to time, and all logs,
manuals and other records relating to such Aircraft (collectively,
the “ Aircraft ”):
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FAA Registration Number:
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N944AL
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Aircraft Serial
Number:
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4124
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Aircraft
Manufacturer:
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Gulfstream
Aerospace
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Aircraft
Model:
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GIV-X
(G450)
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Aircraft
Year:
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2008
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Engine Serial
Numbers:
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85249 and
85250
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Engine
Manufacturer:
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Rolls-Royce
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Engine
Model:
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TAY MK
611-8C
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WHEREAS, Lessee desires to lease the
Aircraft under such terms and conditions as are mutually
satisfactory to the parties.
The parties agree as
follows:
SECTION ONE
LEASE OF AIRCRAFT
For $5,950 per flight hour, Lessor
agrees to lease the Aircraft to Lessee. Lessee acknowledges that
Lessor has also entered into a management agreement with Airmax,
LLC, a
limited liability company organized under the
laws of the State of Colorado with an address at 13000 E. Control
Tower Road, Box K 7, Englewood, CO 80112, pursuant to which Airmax,
LLC shall manage the Aircraft according to 14 C.F.R Part 91 and
Airmax, LLC’s policies. It shall be conclusively presumed
between the parties that Lessee has fully inspected the Aircraft
having knowledge that it is in good condition and repair and that
Lessee is satisfied with and has accepted the Aircraft in such
condition and repair.
SECTION TWO
TERM
This Lease will commence on the date
first above written and continue for one year after said date.
Thereafter, this Lease will be automatically renewed on a month to
month basis, unless sooner terminated by either party as
hereinafter provided. Either party may at any time terminate this
Lease upon thirty (30) days written notice to the other party,
delivered personally or by certified mail, return receipt
requested, at the address set forth above.
SECTION THREE
PRIVATE AND COMMERCIAL
OPERATION
Neither Lessee nor Lessor will make
the Aircraft available for hire within the meaning of the Federal
Aviation Regulations. The Aircraft must be operated in accordance
with 14 C.F.R. Part 91 at all times. Lessor and Lessee hereby agree
that Lessee shall have complete and uncompromised operational
control of the Aircraft under 14 C.F.R. Part 91 at all times the
Aircraft is operated by Lessee under this Lease. Lessee represents
and warrants that it is leasing the Aircraft for either:
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(a)
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the personal
transportation of Lessee and Lessee’s guests where no charge,
assessment or fee is made for such transportation; or
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(b)
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the
transportation of Lessee’s officials, employees, guests and
property where such transportation is within the scope of or
incidental to Lessee’s business. Lessee represents and
warrants that it is not leasing the Aircraft for the purpose of
charter or lease to third parties which could be considered
commercial air transportation or air transportation for hire as set
out in the Federal Aviation Regulations.
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SECTION FOUR
INSURANCE
At all times during the term of this
Lease, Lessor will also cause to be carried and maintained third
party aircraft liability insurance, passenger legal liability
insurance, property damage liability insurance, and medical expense
insurance in the amounts set forth below:
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Combined Liability Coverage for Bodily Injury
and Property Damage Including Passengers - Each
Occurrence
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$
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200,000,000
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Medical Expense Coverage - Each
Person
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$
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50,000
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Lessee’s proportionate share
of the cost of the above insurance is included in Lessee’s
lease payments to Lessor. Lessee will also bear the cost of paying
any deductible amount on any policy of insurance in the event of a
claim or loss.
Any policies of insurance carried in
accordance with this Lease: (i) shall name Lessee as an
additional insured; and (ii) shall contain a waiver by the
underwriter thereof of any right of subrogation against Lessor; and
(iii) shall provide that in respect of the interests of
Lessor,
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such policies of insurance shall not be
invalidated by any action or inaction of Lessee or any other person
and shall insure Lessor (subject to the limits of liability and war
risk exclusion set forth in such policies) regardless of any breach
or any violation of any warranty, declarations or conditions
contained in such policies by Lessee or any other person; and
(iv) shall provide that if the insurers cancel insurance for
any reason whatsoever, or the same is allowed to lapse for
non-payment of premium, or if there is any material change in
policy terms and conditions, such a cancellation, lapse or change
shall not be effective as to Lessee. Each liability policy shall be
primary without right of contribution from any other insurance
which is carried by Lessee or Lessor and shall expressly provide
that all of the provisions thereof, except the limits of liability,
shall operate in the same manner as if there were a separate policy
covering each insured.
Lessor will submit this Lease for
approval to the insurance carrier for each policy of insurance on
the Aircraft. Lessor will arrange for a Certificate of Insurance
evidencing appropriate coverage as to the Aircraft and the
satisfaction of the requirements set forth above to be given by its
insurance carriers to Lessee upon Lessee’s
request.
SECTION FIVE
RESTRICTIONS ON
USE
Lessee may operate the Aircraft only
for the purposes and within the geographi