Exhibit 10.1
Execution
version
TIME SHARING
AGREEMENT
This Time Sharing Agreement (this
“Agreement”) is dated this 4th day of
February 2009, by and between Sextant Holdings, LLC, a
Massachusetts limited liability company (the “Company”)
and The First Marblehead Corporation, a Delaware corporation
(“Lessee”).
RECITALS
WHEREAS, Company operates and
rightfully possesses the aircraft identified in Section 15 of
this Agreement (the “Aircraft”); and
WHEREAS, Lessee desires to lease the
Aircraft from Company from time to time on a non-exclusive
time-sharing basis as defined in Sections 91.501(b)(6),
91.501(c)(1) and 91.501(d) of the Federal Aviation
Regulations (“FARs”); and
WHEREAS, this Agreement is intended
to be a time sharing agreement as defined in
Section 91.501(c)(1) of the FAR.
NOW, THEREFORE, in consideration of
the foregoing, and the other promises contained herein, and for
other good and valuable consideration, the parties, intending to be
legally bound hereby, agree as follows:
1.
Non-Exclusive Lease; Term of
Lease. Company
agrees to lease the Aircraft to Lessee on a non-exclusive basis
from time to time as mutually agreed between the parties pursuant
to the provisions of FAR 91.501(b)(6), 91.501(c)(1) and
91.501(d) and to provide a fully qualified flight crew for all
operations conducted under this Agreement. This
Agreement shall be effective on the date set forth above and shall
remain in effect until terminated by either party upon ten
(10) days prior written notice to the other.
2.
Lease Fee.
Lessee shall pay to Company for each
flight conducted under this Agreement a lease fee (“Lease
Fee”) not to exceed the actual expenses of each specific
flight as authorized by FAR Part 91.501(d). Such actual
expenses shall include and are limited to:
(a)
Fuel, oil, lubricants, and other
additives;
(b)
Travel expenses of the crew,
including food, lodging and ground transportation;
(c)
Hangar and tie-down costs away from
the Aircraft’s base of operations;
(d)
Insurance obtained for the specific
flight;
(e)
Landing fees, airport taxes and
similar assessments;
(f)
Customs, foreign permit, and similar
fees directly related to the flight;
(g)
In-flight food and
beverages;
(h)
Passenger ground
transportation;
(i)
Flight planning and weather contract
services; and
(j)
An additional charge equal to 100
percent of the expenses listed in subparagraph
2(a) above.
Lessee shall also be responsible to
pay, together with any Lease Fee, applicable state and federal
taxes, fees and charges.
3.
Invoicing and
Payment. Company
will pay all expenses related to the operation of the Aircraft when
incurred, and will provide an invoice to Lessee for the Lease Fee
determined in accordance with paragraph 2 above as promptly as
practicable following each flight. Lessee shall pay to
Company the Lease Fee, together with applicable taxes, within
fifteen (15) days of receipt of the invoice.
4.
Flight
Information. Lessee
will provide Company with requests for flight time and proposed
flight schedules as far in advance of any given flight as possible,
and in any case, at least two (2) business days in advance of
Lessee’s planned departure (unless Company agrees to a
shorter notice in
a particular case in its discretion).
Requests for flight time shall be in a form, whether written or
oral, mutually convenient to, and agreed upon by the parties.
In addition to the proposed schedules and flight times, Lessee
shall provide at least the following information for each proposed
flight prior to scheduled departure as required by the Company or
Company’s flight crew:
(a)
proposed departure point;
(b)
destination;
(c)
date and time of flight;
(d)
the number, name, and relationship
to the Lessee of anticipated passengers;
(e)
the nature and extent of luggage
and/or cargo to be carried;
(f)
the date and time of return flight,
if any; and
(g)
any other information concerning the
proposed flight that may be pertinent or required by Company or
Company’s flight crew.
5.
Flight Scheduling.
Company shall have final
authority over the scheduling of the Aircraft, provided, however,
that Company will use reasonable efforts to accommodate
Lessee’s requests and to avoid conflicts in scheduling.
It is understood that Company shall not be obligated to retain or
contract for additional flight crew or maintenance personnel or
equipment in order to accommodate Lessee’s scheduling
requests.
6.
Operational Control.
The Company shall have and exercise
exclusive operational control of the Aircraft during all phases of
all flights performed under this Agreement, including, without
limitation, all flights during which Lessee and/or Lessee’s
guests are on-board the Aircraft. Consistent with the
Company’s operational control responsibilities, Company shall
be solely responsible to secure maintenance, preventive maintenance
and required or otherwise necessary inspections on the Aircraft,
and shall take such requirements into account in scheduling the
Aircraft. No period of maintenance, preventative maintenance or
inspection shall be delayed or postponed for the purpose of
scheduling the Aircraft, unless said maintenance or inspection can
be safely conducted at a later time in compliance with all
applicable laws and regulations, and within the sound discretion of
the pilot in command. All flight operations under this Agreement
shall be conducted under Part 91 of the FAR.
7.
Authority of Pilot in Command and
Flight Crew. For each flight conducted under this Agreement,
the Aircraft will be under the command of a qualified flight crew.
The pilot in command shall have final and complete authority to
cancel any flight for any reason or condition that in his or her
judgment would compromise the safety of the flight. Lessee
specifically agrees that the flight crew, in its sole discretion,
may terminate any flight, refuse to commence any flight, or take
other action which in the considered judgment of the pilot in
command is necessitated by considerations of safety. No such
action of the pilot in command shall create or support any
liability for loss, injury, damage or delay to Lessee or any other
person.
8.
Damages. Company shall not be liable to
Lessee or any other person for loss, injury, damage or delay
occasioned by the delay or failure by Company to furnish the
Aircraft and crew pursuant to this Agreement for any reason.
Additionally, Lessee waives any and all claims, rights and remedies
against Company arising out of this Agreement (whether express or
implied, or arising by operation or law or in equity) for
any
