Exhibit 10.4
Aqua Sun
Lease
NON-EXCLUSIVE AIRCRAFT LEASE
AGREEMENT
Dated as of July 1, 2005, between
AQUA SUN INVESTMENTS, L.L.C. as
Lessor,
and
U-STORE-IT, L.P. as Lessee,
concerning one Cessna 525A Citation CJ2 aircraft
bearing U.S. registration number N306CJ
and manufacturer’s serial number
525A-0016.
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
Schedule A . to the following address via certified
mail,
return receipt requested:
Federal Aviation Administration
Aircraft Registration Branch
ATTN: Technical Section
P.O. Box 25724 Oklahoma City, Oklahoma
73125
At least 48 hours prior to the
first flight to be conducted under this
Agreement:
provide notice of the departure airport and
proposed time of departure
of said first flight, by telephone or facsimile,
to the Flight Standards
District Office located nearest the departure
airport.
Carry a copy of this Aircraft
Lease Agreement in the aircraft at all times.
Schedule A
contains only economic rental
data and is intentionally omitted for FAA
submission
purposes.
This NON-EXCLUSIVE AIRCRAFT LEASE
AGREEMENT (this “Agreement”) is entered into as of
this I st day of July, 2005 (the
“Effective Date”), by and between Aqua Sun Investments,
L.L.C., a Florida limited liability company (“Lessor”),
and U-Store-It, L.P., a Delaware limited partnership
(“Lessee”).
WITNESSETH:
WHEREAS, Lessor is, as of the Effective Date of this
Agreement, the registered owner of the Aircraft described and
referred to herein;
WHEREAS, Lessee desires to lease from Lessor, and Lessor
desires to lease to Lessee, the Aircraft, 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 valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
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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 and the Engines.
Such Engines shall be deemed part of the “Aircraft”
whether or not from time to time attached to the Airframe or on the
ground.
“Airframe”
means that certain Cessna 525A
Citation CJ2 aircraft bearing U.S. registration number N306CJ and
manufacturer’s serial number 525A-0016, 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 FARs and Title 49, Subtitle VII of the United
States Code.
“Business
Day” means any day
of the year in which banks are not authorized or required to close
in the location of Lessor’s address for
notification.
“Engines”
means two (2) WMS RR model FJ44-2C
engines, serial numbers 1047 and 1032, together with any and all
Parts so long as the same shall be either incorporated or installed
in or attached to such Engine. An Engine shall remain leased
hereunder whether or not from time to time attached to the Airframe
or on the ground.
“FAA”
means the Federal Aviation
Administration of the United States Department of Transportation or
any successor agency.
“FARs”
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, measured from takeoff
to landing on each leg of the trip, as recorded on the Aircraft
hour meter.
“Lien”
means any mortgage, pledge, lien,
security interest, lease, charge, encumbrance or claim or right of
others, including, without limitation, rights of others under any
airframe or engine interchange or pooling agreement.
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“Operating
Base” means
Cleveland Hopkins International Airport, Cleveland,
Ohio.
“Operational
Control” has the
same meaning given the term in Section 1.1 of the FARs.
“Parts”
means all appliances, components,
parts, instruments, appurtenances, accessories, furnishings or
other equipment of whatever nature (other than complete Engines or
engines) which may from time to time be incorporated or installed
in or attached to the Airframe or any Engine and includes
replacement parts.
“Person”
means an individual, partnership,
corporation, business trust, joint stock company, trust,
incorporated association, joint venture, governmental authority or
other entity of whatever nature.
“Pilot in
Command” has the
same meaning given the term in Section 1.1 of the FARs.
“Rent Payment
Date” means the
last Business Day of each calendar month.
“Schedule
Keeper” means the
person designated by Lessor to coordinate the scheduling of the
Aircraft.
“Term”
means the term of this Agreement set
forth in Section 3.1 .
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SECTION
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2.
LEASE AND DELIVERY OF THE AIRCRAFT
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2.1
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Lease. Lessor agrees to lease to Lessee, and Lessee
agrees to lease from Lessor, 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 at the
Operating Base in an airworthy condition prior to each use of the
Aircraft by Lessee. Upon each such delivery, the United States
standard airworthiness certificate issued for the Aircraft shall be
present on board the Aircraft, and said standard airworthiness
certificate shall be effective in accordance with FAR 21.181(a)(l).
Lessor 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,
terrorism, 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 Lessor acknowledge that the Aircraft
is leased to Lessee on a non-exclusive basis, and that the Aircraft
shall, at other times, be operated by Lessor and may be otherwise
subject to lease to others during the Term.
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SECTION
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3. TERM,
SCHEDULING AND RENT
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3.1
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Term. The Term shall commence on the Effective Date,
and be effective for a period of one (1) year. At the end of the
first one (1) year period or any subsequent one (1) year period,
the Term shall automatically be renewed for an additional one (1)
year period, unless terminated by either party.
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3.2
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Termination. Either party may terminate this Agreement with
or without cause upon sixty (60) days’ prior notice to the
other party. Within thirty (30) days after the date of termination,
Lessor shall provide Lessee with an accounting of all outstanding
charges or costs relating to this Agreement. Lessee shall pay to
Lessor any outstanding charges and costs for which it may be
responsible within thirty (30) days after receipt of such
accounting. Both parties agree to take all necessary action with
respect to the FAA and insurance companies to inform them of the
termination of this Agreement.
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3.3
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Scheduling. Lessee’s use of the Aircraft during the
Term of this Agreement is non-exclusive. The parties agree as
follows:
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(a)
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Use bv
Lessor and Other Lessees . Lessor and Lessee agree that Lessor may lease
the Aircraft to one or more other lessees during the Term on a
non-exclusive basis, that Lessor has the absolute right to
determine the availability of the Aircraft for Lessee and that
Lessor’s use of the Aircraft shall have priority over the
availability of the Aircraft for lease to Lessee or any other
party. Lessor agrees that at such times as the Aircraft is not
undergoing maintenance or being used by Lessor, Lessee and all
other lessees of the Aircraft shall be scheduled on a “first
come, first served” basis; provided , however ,
that Lessee and all other lessees shall cooperate in good faith on
all scheduling matters and shall use their respective best efforts
to avoid scheduling conflicts involving the Aircraft.
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3
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(b)
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Designation
of Schedule Keeper .
Lessor shall advise Lessee of the identity and contact information
for the Schedule Keeper and of any change in the Schedule
Keeper.
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3.4
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Rent. Lessee shall pay rent in an amount equal to the
Hourly Rent specified in Schedule A attached hereto for each
Flight Hour of use of the Aircraft by Lessee. All rent accrued
during any calendar month shall be payable in arrears on the Rent
Payment Date in the immediately succeeding calendar month without
further demand or invoice. All rent shall be paid to Lessor in
immediately available U.S. funds.
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3.5
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Taxes. Neither rent nor any other payments to be made
by Lessee under this Agreement includes the amount of any sales or
excise taxes which may be assessed or levied by any governmental
authority as a result of the lease of the Aircraft to Lessee and
payment of rent hereunder. Lessee shall remit to Lessor all such
taxes together with each payment of rent pursuant to Section
3.4 .
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SECTION 4.
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DISCLAIMER OF WARRANTIES; INDEMNIFICATION
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4.1
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Disclaimer
of Warranties. THE
AIRCRAFT IS BEING LEASED BY LESSOR TO LESSEE HEREUNDER ON AN
“AS IS” BASIS. THE WARRANTIES AND REPRESENTATIONS SET
FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER
REPRESENTATIONS OR WARRANTIES, AND LESSOR HAS NOT MADE AND SHALL
NOT BE CONSIDERED OR DEEMED TO HAVE MADE AND LESSEE HEREBY WAIVES,
RELEASES, DISCLAIMS AND RENOUNCES ALL EXPECTATION OF OR RELIANCE
UPON ANY WARRANTIES, OBLIGATIONS AND LIABILITIES OF LESSOR,
EXPRESSED, IMPLIED, ARISING BY LAW, COURSE OF DEALING, USAGE OF
TRADE OR OTHERWISE, WITH RESPECT TO THE DESIGN, MERCHANTABILITY OR
FITNESS FOR A PARTICULAR USE OF THE AIRCRAFT. LESSOR SHALL HAVE NO
RESPONSIBILITY OR LIABILITY TO LESSEE OR ANY OTHER PERSON WITH
RESPECT TO ANY OF THE FOLLOWING, REGARDLESS OF ANY NEGLIGENCE OR
FAULT OF LESSOR. (A) ANY LIABILITY, LOSS OR DAMAGE CAUSED OR
ALLEGED TO BE CAUSED DIRECTLY OR INDIRECTLY BY THE AIRCRAFT OR AY
COMPONENT OF THE AIRCRAFT OR BY ANY INADEQUACY OF THE THEREOF, ANY
DEFICIENCY OR DEFECT IN THIS AGREEMENT OR ANY OTHER CIRCUMSTANCES
IN CONNECTION WITH THE AIRCRAFT OR THIS AGREEMENT; (B) THE USE,
OPERATION OR PERFORMANCE OF THE AIRCRAFT OR ANY COMPONENT OF THE
AIRCRAFT OR ANY RISKS RELATING THERETO; OR (C) ANY INTERRUPTION OF
SERVICE, LOSS OF BUSINESS OR ANTICIPATED PROFITS OR CONSEQUENTIAL
DAMAGES.
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4.2
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Indemnification. Lessee shall indemnify, defend and hold Lessor
harmless from and against any and all claims, actions, suits,
proceedings, injuries (or death), damages, liabilities, costs or
expenses (including without limitation reasonable attorneys’
fees) arising from or in any way relating to Lessee’s
possession or use of the Aircraft during the Term (an
“Indemnified Loss”), provided that Lessee will not be
liable for any Indemnified Loss:
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(a)
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to the extent
that such loss is covered by Lessor’s insurance
policy;
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(b)
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with respect to
a loss covered by Lessor’s insurance policy, to the extent
that the amount of such loss exceeds the policy limits of
Lessor’s policy;
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(c)
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with respect to
a loss consisting of expenses incurred in connection with a loss
covered in whole or in part by Lessor’s insurance policy, to
the extent that such expenses are not fully covered by
Lessor’s insurance policy; or
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(d)
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to the extent
that such loss is due in whole or in part to (i) noncompliance by
Lessor with any of its obligations hereunder or (ii) the gross
negligence or willful misconduct of Lessor or another lessee or
their respective officers, directors, partners, employees,
shareholders or affiliates.
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The foregoing indemnification shall
survive the expiration or earlier termination of this
Agreement.
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SECTION 5.
REGISTRATION,
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USE,
OPERATION, MAINTENANCE AND POSSESSION
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5.1
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Title and
Registration. Title to
the Aircraft shall remain vested in Lessor at all times during the
Term to the exclusion of Lessee and Lessor shall have only such
rights as shall be specifically set forth herein. Lessor represents
that as of the date of this Agreement the Aircraft is, and
throughout the Term the Aircraft shall remain, lawfully registered
in Lessor’s name as a civil aircraft of the United
States.
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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 during each per
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