INTERCHANGE AGREEMENTAircraft Lease Agreement |
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Search Aircraft Lease Agreement by:
Exhibit 10.2
INTERCHANGE AGREEMENT
THIS INTERCHANGE AGREEMENT (this “Agreement”), made and entered into by Joust Capital, LLC (“Joust One”), a Maryland limited liability company whose address is1061 Mt. Airy Road, Davidsonville, Maryland 21035, and Danaher Corporation (“Danaher”), a Delaware corporation whose address is 2099 Pennsylvania Avenue, N.W., 12th Floor, Washington, D.C. 20006, on and as of the 15th day of February, 2007.
WITNESSETH:
WHEREAS, Joust One owns and operates an aircraft more particularly described in Schedule A hereto (such aircraft together with the engines described in Schedule A, is referred to herein as the “Joust One Aircraft”);
WHEREAS, Danaher leases and operates an aircraft more particularly described in Schedule B hereto (such aircraft together with the engines described in Schedule B, is referred to herein as the “Danaher Aircraft” (the Joust One Aircraft and the Danaher Aircraft are sometimes referred to as the “Aircraft” or individually, an “Aircraft”); and
WHEREAS, Joust One desires to lease the Joust One Aircraft to Danaher, and Danaher desires to lease the Danaher Aircraft to Joust One, in each case in an interchange agreement pursuant to Section 91.501(c)(2) of the Federal Aviation Regulations (“FAR”).
NOW, THEREFORE, the parties hereto agree as follows:
1. Term. The term of this Agreement (“Term”) shall commence on the date hereof, and shall continue for a period of five (5) years, unless either party terminates this Agreement pursuant to Sections 9 or 12 hereof.
2. Use of Aircraft.
A. Lease of Aircraft. Each party agrees on the terms and conditions of this Agreement to provide the use of its Aircraft for the convenience of the other party, and to operate interchange flights subject to the requirements of FAR Section 91.501(b)(6). Such use will be at the convenience of the party which operates the Aircraft (the operator of the Aircraft is hereinafter referred to as the “Operator” and the party using the Aircraft pursuant to this Agreement is hereinafter referred to as the “User”), upon request by one to the other in accordance with the terms and conditions of this Agreement. Pursuant to this Agreement, which shall constitute an interchange agreement as that term is
defined in FAR Section 91.501(c)(2), Joust One agrees to make available the Joust One Aircraft for lease on a non-exclusive, equal time, basis to Danaher, and Danaher agrees to make available the Danaher Aircraft for lease on a non-exclusive, equal time, basis to Joust One, in each case subject to the terms and conditions of this Agreement.
B. Operational Control. Regardless of who may be using an Aircraft under this Agreement, Joust One shall at all times have operational control of the Joust One Aircraft and responsibility for compliance with applicable FAR and Danaher shall at all times have operational control of the Danaher Aircraft and responsibility for compliance with applicable FAR.
C. Purpose of Flight. The User agrees that it will use the Operator’s Aircraft only for purposes expressly permitted by Part 91 of the Federal Aviation Administration’s (“FAA”) regulations.
D. Scheduling Flights.
i. Schedule Process. In order to schedule a flight on the Operator’s Aircraft, the User shall contact the Operator’s aviation manager and request use of the Operator’s Aircraft for a particular date and time and include information with regard to the destination of the planned flight. The Operator’s aviation manager shall determine whether the Aircraft is available for lease at that time and seek approval for the flight from the Operator. If the Aircraft is available, the Operator’s aviation manager shall handle all details arising out of the User’s scheduling of the Aircraft, such as filing flight plans and arranging for in flight catering. Determination of the availability of the Operator’s Aircraft for lease to the User shall be left to the sole discretion of the Operator. The Operator shall have the right to cancel a proposed lease of the Aircraft by telephonic or other notice to the User at any time prior to the departure of the Aircraft at the inception of the lease. The parties acknowledge that they may each use the same aviation manager for purpose of this Section 2(D)(i).
ii. Equal Time. The parties intend to lease their Aircraft to one another on an equal time basis.
a. Each and every lease under this Agreement must be approved by the Operator prior to scheduling such flight. Approval shall be at the sole discretion of the Operator. Neither party shall be obligated to make its Aircraft available to the other party for any flight under this Agreement.
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b. For all purposes of this Agreement, a lease of an Aircraft under this Agreement shall be based on actual logged flight time, and shall include any positioning flight required by the User.
3. Operational Expenses. No charge, assessment or fee is to be made by either Party for its respective Aircraft use. Quarterly, the parties shall direct the aircraft manager of each Aircraft to calculate and provide a written report to each party showing the number of hours operated under this Agreement (i) during the most recently ended quarter, (ii) for the then-current calendar year-to-date and (iii) during the Term of this Agreement. If in any calendar year one party has leased the Aircraft for a greater number of hours that the other party, those hours will be carried forward into the next calendar year of this Agreement for purposes of this reconciliation.
4. Flight Crew.
A. Provision of Flight Crew. As is consistent with the FAR, the Operator shall provide flight crew for all flights operated under this Agreement. Such flight crew shall be duly qualified and licensed and shall exercise all of its duties and responsibilities in regard to the safety of each flight conducted under this Agreement in accordance with applicable FAR.
B. Pilot Duties. Pilots shall exercise pilots’ duties and responsibilities in regard to the safety of each flight conducted pursuant to this Agreement in accordance with the applicable FAR. When safety may be compromised, in the view of the pilots of either Aircraft used pursuant to this Agreement, the pilots may terminate a flight, refuse to commence a flight or take other action necessitated by safety considerations. Nothing in this Agreement shall be construed to abridge the authority and responsibility of the pilot-in-command as provided under pertinent FAR Part 91 regulations.
5. Recordkeeping. The Operator shall keep accurate, complete and current, records pertaining to flight operations in compliance with FAA requirements, as well as all records kept by reasonable and prudent businesses in the normal course of operating a flight department. These records shall include flights conducted, pilot training and licensing, and any Aircraft accidents or incidents. Such records shall be available to both parties during business hours.
6. Maintenance.
A. Maintenance Standards. Each Operator shall be solely responsible for securing maintenance, preventive maintenance and required or
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otherwise necessary inspections on its respective Aircraft. Each Aircraft will be maintained and inspected as required by FAR Part 91.
B. Cost of Maintenance. Each Operator shall bear the cost of all maintenance performed on its Aircraft, except such additional maintenance or repair which arises out of the negligence or misconduct of the leasing User, or any other person or persons for which the User is responsible. Any maintenance or repair required because of such negligence or misconduct will be fully charged to the User to the extent such cost is not covered by insurance or a third party.
C. Maintenance Records. Each Operator shall keep accurate, complete and current, maintenance records on its Aircraft in compliance with FAA requirements. These records shall include scheduled maintenance, repairs, modifications, scheduled inspections, functional tests and overhauls performed. Such records shall be available to both parties during normal business hours.
7. Damage Reports. The Operator shall immediately notify the User of any accident or incident connected with the use of either of the Aircraft hereunder, and shall include in such report the time, place and nature of the accident or incident, the nature and extent of damage caused to property, the names and addresses of persons injured, the names and addresses of witnesses, and such other information as may be relevant to such accident or incident.
8. Insurance.
A. Throughout the Term, each Operator shall maintain insurance with respect to its Aircraft covering:
i. all-risk hull insurance with respect to such Aircraft, against any loss, theft, or damage to such Aircraft, including, without limitation, extended coverage with respect to any engine or parts while removed from the Aircraft. The User shall have no claim to the proceeds of hull insurance maintained with respect to such Aircraft and
ii. comprehensive aviation liability insurance with respect to the Operator’s Aircraft, including, without limitation, aircraft passenger and property damage coverage for an amount not less than Four Hundred Million Dollars ($400,000,000) single limit liability coverage and naming the other party and each of its affiliates and their respective members, directors, officers, managers, employees and agents and such other persons as the User may reasonably request as insureds or additional insureds. Such insurance shall include waiver of subrogation rights in favor of the Operator and the other insureds and additional
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insureds. Such insurance shall also be primary without any right of contribution from any other insurance available to any other insureds or additional insureds.
B. The parties agree that the insurance specified in Section 8(A) shall provide User’s, User’s affiliates, their respective members, directors, officers, managers, employees and agents and any person claiming by, through, or under the foregoing (collectively, the “User Parties”) sole recourse for all claims, losses, liabilities, obligations, demands, suits, judgments or causes of action, penalties, fines, costs and expenses of any nature whatsoever, including attorneys’ fees and expenses (each, a “Claim” and collectively, the “Claims”) for or on account of, or arising out of, or in any way connected with the Operator’s breach of this Agreement or possession, maintenance, storage, use or operation of the Operator’s Aircraft, including injury to or death of any persons, which may result from, arise out of, or is in any way connected with the possession, maintenance, storage, use or operation of the Aircraft during the term of this Agreement.
WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL THE OPERATOR OR ANY OF THE OPERATOR PARTIES (AS DEFINED BELOW) BE LIABLE TO THE USER, ANY USER PARTIES, OR ANY OTHER THIRD PART(IES), AS THE CASE MAY BE, FOR ANY CLAIMS IN EXCESS OF THE AMOUNT PAID TO SUCH USER, USER PARTIES, OR ANY OTHER THIRD PART(IES), AS APPLICABLE, BY THE OPERATOR’S INSURANCE CARRIER. TO THE EXTENT USER OR ANY OF THE USER PARTIES OR ANY THIRD PART(IES) BRING(S) A CLAIM OR CLAIMS AGAINST THE OPERATOR OR ANY OF ITS AFFILIATES OR THEIR RESPECTIVE MEMBERS, DIRECTORS, OFFICERS, MANAGERS, EMPLOYEES OR AGENTS (COLLECTIVELY, THE “OPERATOR PARTIES”) IN AN AMOUNT IN EXCESS OF THE AMOUNT PAID TO SUCH PERSON(S) BY THE OPERATOR’S INSURANCE CARRIER, USER HEREBY AGREES TO INDEMNIFY AND HOLD HARMLESS THE OPERATOR PARTIES FOR ANY SUCH AMOUNTS IN EXCESS OF THE AMOUNTS PAID BY THE OPERATOR’S INSURANCE CARRIER.
C. THE OPERATOR SHALL IN NO EVENT BE LIABLE TO THE USER PARTIES FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES AND/OR PUNITIVE DAMAGES OF ANY KIND OR NATURE UNDER ANY CIRCUMSTANCES OR FOR ANY REASON INCLUDING ANY DELAY OR FAILURE TO FURNISH THE AIRCRAFT OR CAUSED OR OCCASIONED BY THE
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