Exhibit 10.3 NON-EXCLUSIVE AIRCRAFT LEASE
AGREEMENT Dated as of the 3rd day of October, 2006,
between
Franklin Mountain Assets LLC, a Delaware limited liability
company,
as Owner,
and Western Refining Company, L.P., a Delaware limited
partnership,
as Lessee,
concerning one Cessna Model 680 Citation Sovereign aircraft
bearing
U.S. registration number N345PF,
and
Manufacturer’s serial number 680-0080. * * * 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
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
48 hours prior to the first flight :
The lessee or conditional buyer, or
the registered owner if the lessee is not a citizen of the United
States, must notify by telephone or in person the FAA Flight
Standards district office nearest the airport where the flight will
originate. Unless otherwise authorized by that office, the
notification shall be given at least 48 hours before takeoff in the
case of the first flight of that aircraft under that lease or
contract. Carry a copy of this Aircraft Lease Agreement in
the aircraft at all times. * * *
Exhibit B is intentionally omitted for FAA
submission purposes.
This NON-EXCLUSIVE AIRCRAFT
LEASE AGREEMENT (the "Agreement") is entered into as of this
3rd day of October, 2006 (the "Effective Date"), by and between
Western Refining Company, L.P., a Delaware limited partnership
("Lessee"), and Franklin Mountain Assets LLC, a Delaware limited
liability company ("Owner"). WITNESSETH:
WHEREAS , Owner holds title
in and to the Aircraft described and referred to herein;
WHEREAS , Lessee desires to
lease from Owner, and Owner desires to lease to Lessee, the
Aircraft, on a non-exclusive basis, 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 valid consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties agree as follows:
SECTION 1. DEFINITIONS
1.1 The following terms shall have
the following meanings for all purposes of this Agreement:
" Aircraft " means the
Airframe, the Engines, and the Aircraft Documents. Such Engines
shall be deemed part of the "Aircraft" whether or not from time to
time attached to the Airframe or on the ground.
" 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, that have been provided to Lessee by Owner, or
are required by Applicable Law to be created or maintained with
respect to the maintenance and/or operation of the Aircraft.
" Airframe " means the
aircraft specified in Exhibit A, 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. " Business
Day " means any day of the year in which banks are not
authorized or required to close in the State of Texas.
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" Engines " means the
engine(s) specified in Exhibit A, 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. " Event of
Loss " shall mean any of the following events with respect to
any property:
(i) loss
of such property or of the use thereof due to theft or
disappearance (with loss being conclusive following 30 days or
such other period specified in applicable insurance), destruction,
damage beyond economic repair or rendition of such property
permanently unfit for normal use for any reason;
(ii) any
damage to such property which results in an insurance settlement
with respect to such property on the basis of an actual,
constructive or compromised total loss; or
(iii) the
condemnation, confiscation or seizure of, or requisition of title
to or use of, such property by private persons or by any
governmental or purported governmental authority.
" FAA " means the Federal
Aviation Administration or any successor agency,
" FAR " 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, as recorded on the
Aircraft hour meter. " Lease
Period " each lease period shall commence with delivery and
conclude with the return of the Aircraft. If requested by Owner,
Lessee shall execute a Delivery and Acceptance Certificate in the
form attached to this Agreement each time the Lessee accepts
delivery of the Aircraft. "
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. "
Operating Base " means that airport described in
Exhibit A. " 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.
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" Rent Payment Date " means
the payments dates as outlined in Exhibit A.
" Taxes " means all sales
taxes, use taxes, retailer taxes, duties, fees, excise taxes
(including) without limitation, federal transportation excise
taxes), or other taxes of any kind which may be assessed or levied
by any Taxing Jurisdiction 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.
" Taxing Jurisdictions " means
any federal, state, county, local, airport, district, foreign, or
of governmental authority that imposes Taxes.
" Term " means the term of
this Agreement set forth in Section 3.1. SECTION 2.
LEASE AND DELIVERY OF THE AIRCRAFT
2.1 Lease . Owner agrees to
lease to Lessee, and Lessee agrees to lease from Owner, the
Aircraft, on the terms and conditions of this Agreement.
2.2 Delivery . The Aircraft
shall be delivered to Lessee on a mutually agreed date (the
"Delivery Date") at the Operating Base and "AS IS," "WHERE IS," AND
SUBJECT TO EACH AND EVERY DISCLAIMER OF WARRANTY AND REPRESENTATION
AS SET FORTH IN SECTION 4 HEREOF. Owner 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 Owner acknowledge that the Aircraft is leased to Lessee on a
non-exclusive basis, and that the Aircraft will be subject use by
Owner, and may also be subject to non-exclusive lease to others
during the Term. SECTION 3. TERM, SCHEDULING, AND
RENT 3.1 Term . This
Agreement may be terminated at the will of the parties at any time
the Aircraft is in the possession of the Owner.
3.2 Scheduling . Each use of
the Aircraft by Lessee shall be subject to Owner’s approval.
Lessee shall submit flight scheduling requests to Owner as far in
advance as reasonably possible. Owner may approve or deny any
flight scheduling request in Owner’s sole discretion.
3.3 Rent . Lessee shall pay
rent in an amount equal to the Hourly Rent specified in
Exhibit B , attached hereto, which amount may be
amended in writing by mutual agreement of the parties from time to
time, for each Flight Hour of use of the Aircraft by Lessee. All
rent shall be paid to the Owner in immediately available U.S. funds
and in form and manner as the Owner in its sole discretion may
instruct Lessee from time to time.
3.4 Taxes . (a) Neither
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
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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 Owner
against, and, except as provided in Section 3.4(b), Lessee
shall remit to Owner all such Taxes together with each payment of
rent pursuant to Section 3.3; provided, however, that if any
such Taxes shall be due and payable at an earlier time as a matter
of Applicable Law, Lessee shall remit such Taxes to Owner at the
time required by Applicable Law.
(b) If any Taxes shall be
required by Applicable Law to be paid by Lessee directly to the
appropriate Taxing Jurisdiction, Lessee shall remit such Taxes
directly to the appropriate Taxing Jurisdiction promptly at the
time required by Applicable Law, and shall provide evidence of such
payment to Owner. SECTION 4. DISCLAIMER OF WARRANTIES
4.1 THE AIRCRAFT IS BEING LEASED BY
THE OWNER 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 OWNER 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 AS TO THE TITLE, AIRWORTHINESS, VALUE, CONDITION,
DESIGN, MERCHANTABILITY, COMPLIANCE WITH SPECIFICATIONS,
CONSTRUCTION AND CONDITION OF THE AIRCRAFT OPERATION, OR FITNESS
FOR A PARTICULAR USE OF THE AIRCRAFT AND AS TO THE ABSENCE OF
LATENT AND OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE, AS TO THE
ABSENCE OF ANY INFRINGEMENT OR THE LIKE, HEREUNDER OF ANY PATENT,
TRADEMARK OR COPYRIGHT AS TO THE ABSENCE OF OBLIGATIONS BASED ON
STRICT LIABILITY IN TORT, OR AS TO THE QUALITY OF THE MATERIAL OR
WORKMANSHIP OF THE AIRCRAFT OR ANY PART THEREOF OR ANY OTHER
REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED
(INCLUDING, ANY IMPLIED WARRANTY ARISING FROM A COURSE OF
PERFORMANCE OR DEALING OR USAGE OF TRADE), WITH RESPECT TO THE
AIRCRAFT OR ANY PART THEREOF, THE LESSEE HEREBY WAIVES, RELEASES,
DISCLAIMS AND RENOUNCES ALL EXPECTATION OF OR RELIANCE UPON ANY
SUCH AND OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF OWNER AND
RIGHTS, CLAIMS AND REMEDIES OF THE LESSEE AGAINST OWNER, EXPRESS OR
IMPLIED, ARISING BY LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO
(I) ANY IMPLIED WARRANTY OF MERCHANTABILITY OF FITNESS FOR ANY
PARTICULAR USE, (II) ANY IMPLIED WARRANTY ARISING FROM COURSE
OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE,
(III) ANY
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OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER
OR NOT ARISING FROM THE NEGLIGENCE OF OWNER, ACTUAL OR IMPUTED, AND
(IV) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR
LOSS OF OR DAMAGE TO THE AIRCRAFT, FOR LOSS OF USE, REVENUE OR
PROFIT WITH RESPECT TO THE AIRCRAFT, OR FOR ANY OTHER DIRECT,
INCIDENTAL OR, CONSEQUENTIAL DAMAGES. SECTION 5.
REGISTRATION, USE, OPERATION, MAINTENANCE AND POSSESSION
5.1 Title and Registration;
Subordination . Owner has exclusive and equitable title to the
Aircraft, and exclusive leasehold possessory rights to the
Aircraft. Lessee acknowledges that title to the Aircraft s
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