NON-EXCLUSIVE
AIRCRAFT LEASE AGREEMENT
(Part 91
Operations)
Dated as of the 13th day
of November, 2006,
by and
between
JRC Citation,
LLC ,
as Lessor,
and
EGL Eagle Global
Logistics, L.P. ,
as Lessee,
concerning one 2006
Cessna Citation X aircraft bearing
U.S. registration number
N712KC
and
manufacturer’s
serial number 750-0255
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:
deliver a completed
Schedule B containing the departure airport and
proposed
time of departure of
said first flight by 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 (the “Agreement”) is
entered into as of this 13th day of November, 2006 (the
“Effective Date”), by and between JRC Citation,
LLC , a Delaware limited liability company
(“Lessor”), and EGL Eagle Global Logistics, L.P.
, a Delaware limited partnership (“Lessee”).
W I T N E S S E T H
:
WHEREAS
, title to the Aircraft
described and referred to herein is held by Lessor;
WHEREAS
, Lessee desires to
lease from the Lessor, and Lessor desires to lease to Lessee, the
Aircraft, without crew, upon and subject to the terms and
conditions of this Agreement;
WHEREAS
, Lessee intends to
operate the Aircraft under Part 91 of the FAR within the scope of
and incidental to its own business; and
WHEREAS
, during the term of
this Agreement, the Aircraft may be subject to concurrent leases to
one (1) or more Additional Lessee(s).
NOW,
THEREFORE ,
in consideration of the mutual promises herein contained and other
good and valid consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as
follows:
SECTION
1.
DEFINITIONS
1.1
The following terms
shall have the following meanings for all purposes of this
Agreement:
“Additional
Lessee” means any other person or
entity possessing a non-exclusive leasehold interest in the
Aircraft.
“Aircraft”
means the Airframe, the
Engines, the Parts, and the Aircraft Documents. The Engines
shall be deemed part of the “Aircraft” whether or not
from time to time attached to the Airframe or removed from the
Airframe.
“Aircraft
Documents” means all flight records,
maintenance records, historical records, modification records,
overhaul records, manuals, logbooks, authorizations, drawings and
data relating to the Airframe, any Engine, or any Part, or that are
required by Applicable Law to be created or maintained with respect
to the maintenance and/or operation of the Aircraft.
“Airframe”
means that certain 2006
Cessna Citation X aircraft bearing U.S. registration number N712KC,
and manufacturer’s serial number 750-0255, 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 FAR and 49 U.S.C.
§ 41101, et seq ., as amended.
“DOT”
means the United States
Department of Transportation or any successor agency.
“Engines”
means two (2) Allison AE
3007C1 engines bearing manufacturer’s serial numbers
CAE3330528 and CAE3330511, together with any and all Parts so long
as the same shall be either incorporated or installed in or
attached to such Engine. Any engine which may be, from time
to time, substituted for an Engine shall be deemed to be an Engine
and subject to this Agreement for so long as it remains attached to
the Airframe.
“FAA”
means the Federal
Aviation Administration or any successor agency.
1
“FAR”
means collectively the
Aeronautics Regulations of the FAA and the DOT, as codified at
Title 14, Parts 1 to 399 of the United States Code of Federal
Regulations.
“FSDO
Notice” means an FSDO Notification Letter in
the form of Schedule B attached hereto.
“Flight
Hour” means one (1) hour of use of the
Aircraft in flight operations, as recorded on the Aircraft hour
meter and measured from the time the Aircraft takes off at the
beginning of a flight, to the time the Aircraft lands at the end of
a flight in one-tenth (1/10th) of an hour increments.
“Lender”
means Wachovia Financial
Services, Inc.
“Lien”
means any mortgage,
security interest, lease or other charge or encumbrance or claim or
right of others, including, without limitation, rights of others
under any airframe or engine interchange or pooling agreement,
except for mechanics liens to be discharged in the ordinary course
of business.
“Mortgage”
means Aircraft Security
Agreement executed by and among Lender as lender, Lessor as debtor,
and James R. Crane as borrower as of the 1 st day of
July, 2006.
“Operating
Base” means Houston Hobby Airport,
Houston, Texas.
“Operational
Control” has the same meaning given the term
in Section 1.1 of the FAR.
“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.
“Pilot in
Command” has the same meaning given the term
in Section 1.1 of the FAR.
“Rent Payment
Date” means the 15 th day of
each calendar month.
“Taxes ” means all taxes of every
kind (excluding any tax measured by or assessed against a
taxpayer’s income, including, without limitation, any income
tax, gross income tax, net income tax, or capital gains tax)
assessed or levied by any federal, state, county, local, airport,
district, foreign, or other governmental authority, including,
without limitation, sales taxes, use taxes, retailer taxes, federal
air transportation excise taxes, federal aviation fuel excise
taxes, and other similar duties, fees, and excise taxes.
“Term ” means the entire
period from the Effective Date to the date this Agreement is
terminated pursuant to Section 3.1.
SECTION
2.
LEASE AND DELIVERY
OF THE AIRCRAFT
2.1
Lease
. Lessor agrees
to lease to Lessee, and Lessee agrees to lease from Lessor, the
Aircraft, on the terms and conditions of this Agreement.
2.2
Delivery
. The Aircraft
shall be delivered to the Lessee on a mutually agreed date at the
Operating Base, or such other location as the parties may mutually
agree, and “AS IS,” “WHERE IS,” AND SUBJECT
TO EACH AND EVERY DISCLAIMER OF WARRANTY AND REPRESENTATION AS SET
FORTH IN SECTION 4 HEREOF. 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, civil commotion, strikes or labor
disputes, weather conditions, or acts of God.
2.3
Non-Exclusivity
. Lessee and
Lessor acknowledge that the Aircraft is leased to Lessee on a
non-exclusive basis, and that during the Term the Aircraft may be
otherwise subject to lease to other lessees of Lessor. During
any period during which another lessee of Lessor or any other
person or entity leasing an interest in the Aircraft has scheduled
use of the Aircraft, Lessee’s leasehold rights to possession
of the Aircraft under
2
this Agreement shall
temporarily abate, but all other provisions of this Agreement shall
nevertheless continue in full force and effect.
2.4
FSDO
Notice .
At least 48 hours prior to the first flight to be conducted
under this Agreement, Lessee shall complete the FSDO Notice
attached hereto as Schedule B and deliver the completed FSDO
Notice by facsimile to the FAA Flight Standards District Office
located nearest to the departure airport of said first
flight.
SECTION 3.
TERM, SCHEDULING, AND RENT
3.1
Term
. This Agreement
shall become effective on the Effective Date, and shall continue in
effect for a period of one (1) year, unless terminated sooner
pursuant to the express provisions herein contained. At the
end of the first one (1) year period or any subsequent one (1) year
period, this Agreement shall automatically be renewed for an
additional one (1) year period. Each party shall have the
right to terminate this Agreement without cause on thirty (30) days
written notice to the other party.
3.2
Minimum Usage by
Lessee .
Nothing contained herein shall obligate Lessee to any minimum
usage of the Aircraft, it being understood and agreed that
Lessee’s usage shall be on an “as-needed”
basis.
3.3
Rent
. Lessee shall pay rent
in arrears 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 the Lessor in immediately
available U.S. funds and in form and manner as the Lessor in its
sole discretion may instruct Lessee from time to time.
3.4
Taxes
. Neither the
rent nor any other payments to be made by Lessee under this
Agreement includes the amount of any Taxes which may be assessed or
levied by any taxing jurisdictions as a result of the lease of the
Aircraft to Lessee, or the use of the Aircraft by Lessee, or
the provision of a taxable transportation service by Lessee using
the Aircraft. Lessee shall be responsible for, shall indemnify and
hold harmless Lessor against, and Lessee shall pay when due that
portion of all such Taxes attributable to the lease of the Aircraft
to, and/or the use of the Aircraft by, Lessee. Lessee
shall have the right to dispute or contest in good faith and at
Lessee’s sole expense the amount of any Taxes assessed or
imposed directly against Lessee. During the period that any
such Taxes are being disputed or contested in good faith, payment
of such Taxes in accordance with the terms of this Agreement may be
delayed until a final determination of the amount due has been
made.
SECTION
4.
REPRESENTATIONS
AND WARRANTIES
4.1
Representations and
Warranties of Lessee . Lessee represents and
warrants as of the date hereof and during the entire Term hereof as
follows:
4.1.1
Lessee is a validly
organized limited partnership under the laws of the State of
Delaware, and the person executing on behalf of Lessee has full
power and authority to execute this Agreement on behalf of Lessee
and by such execution shall bind Lessee under this
Agreement.
4.1.2
No action, suit, or
proceeding is currently pending or threatened against Lessee that
shall in any material way affect Lessee’s financial status as
of the date thereof, or impair the execution, delivery, or
performance by Lessee of this Agreement.
4.1.3
The execution and
delivery of this Agreement by Lessee and the performance of its
obligations hereunder have been duly authorized by all necessary
corporate or limited liability company action, and do not conflict
with any provision of Lessee’s articles of organization,
bylaws, operating agreement, any governmental regulations, or any
other agreements that Lessee may now have with other
parties.
3
4.1.4
Lessee is not subject to
any restriction, which with or without the giving of notice, the
passage of time, or both, prohibits or would be violated by or be
in conflict with this Agreement.
4.1.5
This Agreement
constitutes the legal, valid and binding obligations of Lessee, and
is enforceable against Lessee in accordance with the terms herein
contained.
4.1.6
Lessee will make
reasonable efforts to ensure that the Aircraft is not operated in
any unsafe manner or contrary to any manual or instructions for the
Aircraft or in violation of the terms or conditions of any
insurance policy covering the Aircraft or any Applicable Law.
4.1.7
All pilots who operate
the Aircraft for Lessee’s flights shall have at least the
minimum total pilot hours required by any policy of insurance
covering the Aircraft and will meet or exceed all requirements
under any policy of insurance covering the Aircraft. Lessor
shall inform Lessee of all such requirements.
4.2
Representations and
Warranties of Lessor. Lessor hereby represents and
warrants as follows:
4.2.1
Lessor is a validly
organized corporation or limited liability company under the laws
of the State of Delaware, and the person executing on behalf of
Lessor has full power and authority to execute this Agreement on
behalf of Lessor and by such execution shall bind Lessor under this
Agreement.
4.2.2
No action, suit, or
proceeding is currently pending or threatened against Lessor which
shall in any material way affect Lessor’s financial status as
of the date thereof, or impair the execution, delivery, or
performance by Lessor of this Agreement.
4.2.3
The execution and
delivery of this Agreement by Lessor and the performance of its
obligations hereunder have been duly authorized by all necessary
corporate or limited liability company action, and do not conflict
with any provision of Lessor’s articles of organization,
bylaws, operating agreement, any governmental regulations, or any
other agreements that Lessee may now have with other
parties.
4.2.4
Lessor is not subject to
any restriction, which with or without the giving of notice, the
passage of time, or both, prohibits or would be violated by or be
in conflict with this Agreement.
4.2.5
This Agreement
constitutes the legal, valid and binding obligations of Lessor, and
is enforceable against Lessor in accordance with the terms herein
contained.
4.3
DISCLAIMER OF
WARRANTIES .
THE AIRCRAFT IS BEING LEASED BY THE LESSOR TO THE LESSEE HEREUNDER
ON A COMPLETELY “AS IS,” “WHERE IS,” BASIS,
WHICH IS ACKNOWLEDGED AND AGREED TO BY THE LESSEE. THE
WARRANTIES AND REPRESENTATIONS SET FORTH IN THIS SECTION 4 ARE
EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS OR WARRANTIES
WHATSOEVER, EXPRESS OR IMPLIED, AND LESSOR HAS NOT MADE AND SHALL
NOT BE CONSIDERED OR DEEMED TO HAVE MADE (WHETHER BY VIRTUE OF
HAVING LEASED THE AIRCRAFT UNDER THIS AGREEMENT, OR HAVING ACQUIRED
THE AIRCRAFT, OR HAVING DONE OR FAILED TO DO ANY ACT, OR HAVING
ACQUIRED OR FAILED TO ACQUIRE ANY STATUS UNDER OR IN RELATION TO
THIS AGREEMENT OR OTHERWISE) ANY OTHER REPRESENTATION OR WARRANTY
WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE AIRCRAFT OR TO
ANY PART THEREOF, AND SPECIFICALLY, WITHOUT LIMITATION, IN THIS
RESPECT DISCLAIMS ALL REPRESENTATIONS AND/OR WARRANTIES AS TO THE
AIRWORTHINESS, VALUE, CONDITION, DESIGN, MERCHANTABILITY,
COMPLIANCE WITH SPECIFICATIONS, CONSTRUCTION AND CONDITION OF THE
AIRCRAFT OPERATION, OR FITNE
