EXHIBIT 10.9
AIRCRAFT LEASE-PURCHASE AGREEMENT
THIS AIRCRAFT LEASE-PURCHASE AGREEMENT ("Lease" or "Agreement"),
executed as of January 5, 2004 but made effective January 1, 2004 ("Effective
Date"), is between THUNDER AVIATION ACQUISITIONS, INC., a Delaware corporation
(hereafter "Lessor" or "Lessor/Seller"), and EP AVIATION, INC. ("EP"), a Nevada
corporation (hereafter referred to as "Lessee" or "Lessee/Purchaser");
WITNESSETH THAT:
WHEREAS, Lessor is the registered owner of a 2985 Cessna Citation III
aircraft, Registration Number N650TA, Serial #650-0088 (hereafter "the
Aircraft"), and
WHEREAS, Lessor and Lessee have entered into a Letter of Understanding
to Enter into Lease with Option to Purchase Agreement dated November 18, 2003,
and
WHEREAS, Lessee desires to lease and subsequently purchase the Aircraft
under such terms and conditions as are mutually satisfactory to the parties.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto do hereby agree as follows:
I. RIGHT OF INSPECTION
Lessee is entitled to a due diligence period for inspection of the
aircraft, its records and a test of all systems. The cost of such inspection
shall be the responsibility of the Lessee and such inspection shall take place
at Premier Air Center, Inc. in Alton, IL (KALN) ("Inspection Location"). Lessee
shall be responsible for the cost of fuel, oil and landing fees incurred in
transporting the Aircraft from Spirit of St. Louis (KSUS) airport in
Chesterfield, Missouri to the Inspection Location. Lessee will accept or reject
the aircraft as a result of this inspection in writing to Lessor within two
business days of completion of inspection. If Lessee reject aircraft, this
agreement will be null and void except Lessee obligation to pay for this
inspection and return Aircraft to Lessor's facility at KSUS.
II. DELIVERY
Lessee shall accept delivery of the Aircraft at the Inspection Location
upon execution of this Agreement and payment of the first month's Base Rent (see
VIII, below). Lessor warrants that the Aircraft shall be delivered equipped and
in the condition as inspected with a United States Certificate of Airworthiness
and in compliance with current F.A.R. 135 aircraft requirements, with all
required Maintenance, Airworthiness per the St. Louis FSDO and Thunder Air
Charter, Inc.'s certificate. More specially, the Aircraft shall be delivered
with all loose equipment including but not limited to airframe, engine and
auxiliary power unit (if applicable); log books continuous and complete; weight
and balance data; flight manual; performance manuals; maintenance records from
factory or manufacturer, wiring diagrams; various equipment operators manuals;
other miscellaneous documents and paperwork; and covers and plugs, etc. which
are normally considered part of the loose equipment delivered with aircraft.
Directives and Mandatory Service Bulletins (or equivalent) shall be complied to
date of delivery. Mutually agreed to airworthiness discrepancies from
Lessee/Purchaser's acceptance inspection shall be corrected at Lessor/Seller's
expense or satisfactory consideration made to Lessee/Purchaser.
III. LEASE TERM
Lessor hereby agrees to dry lease (i.e. Lessee responsible for all
costs associated with operation of the Aircraft, including, but not limited to,
fuel, maintenance, engine accruals, insurance) the Aircraft to Lessee and Lessee
hereby agrees to dry lease the Aircraft from Lessor, upon the terms and
conditions set forth herein.
This Lease shall commence on the Effective Date hereof, and terminate
on the date which is thirty six (36) months after the Effective Date, unless
sooner terminated as set forth below. The Lessee may elect to extend the lease
term for an additional six (6) month period by giving written notice to the
Lessor at least sixty (60) days prior to the original lease termination date.
The Aircraft will be delivered to Lessee at Lessor's expense during normal
business hours at Sarasota Bradenton International Airport (KSRQ) in the Unit B2
area on the Effective Date.
Lessee will have, after completion of Section I above, fully inspected
the Aircraft and acknowledges that it is in good condition and repair and that
Lessee is satisfied with and has accepted the Aircraft in such condition and
repair. If Lessee defaults in its purchase obligation (upon the terms set forth
in Section XIX hereof) upon termination of the Lease, then in addition to any
other remedies Lessor may have in law or in equity, Lessee shall cause the
Aircraft to be returned to Lessor, at Lessee's expense, during normal business
hours at the Spirit of St. Louis (SUS) airport, in Chesterfield, Missouri, upon
termination of this Lease in the same condition as when received, except for
normal and reasonable wear and tear from ordinary use. Lessor may inspect the
Aircraft prior to accepting its return by Lessee. Upon delivery and upon return
of the Aircraft pursuant to this Section III, an authorized representative of
the receiving party will execute and deliver to the other party a receipt
evidencing such delivery or return and specifying the date and hour thereof.
IV. USE OF AIRCRAFT
Lessee may utilize the Aircraft only for the purposes, and within the
geographical limits, set forth in the insurance policy or policies obtained in
compliance with this Agreement, which at a minimum shall cover the operation of
the Aircraft within the territorial limits of the United States, Canada, Mexico
and the Caribbean in the form and amounts set forth in Section XI below. In the
event that Lessor desires to operate the Aircraft outside the territorial limits
of the Untied States, Canada, Mexico and the Caribbean, Lessee shall first
obtain the prior written consent of Lessor, which Lessor shall grant or deny in
Lessor's reasonable discretion. IN seeking the consent of Lessor, which Lessor
shall grant or deny in Lessor's reasonable discretion. In seeking the consent of
Lessor for such use, Lessee shall notify Lessor in writing of the planned
operation of the Aircraft outside of the territorial limits of the United
States, and Canada and shall provide Lessor written proof of insurance coverage
in the amounts and limits set forth herein for operation of the Aircraft in such
foreign jurisdiction. Furthermore, Lessee shall not utilize the Aircraft in
violation of any foreign, federal, state, territorial, or municipal law,
regulation or order of any government or governmental body or in violation of
any airworthiness, certificate, license or registration relating to the Aircraft
and shall be solely responsible for any fines, penalties, or forfeitures
occasioned by any violation. If such fines or penalties are imposed on Lessor,
and paid by Lessor, Lessee shall reimburse Lessor for the amount thereof within
ten (10) days of receipt by Lessee of written demand from Lessor. Lessee will
not direct the Aircraft to be based, and Lessor shall not permit the aircraft to
be based, outside the territorial limits of the United States of America,
without the prior written consent of Lessor. Lessee will not take the Aircraft
into the countries prohibited by the U.S. Department of Commerce Regulations
without the written consent of Lessor. Lessee agrees to indemnify and hold
Lessor harmless from any breach of Lessee's warranties set forth in this
paragraph.
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V. MAINTENANCE
during the term of this Lease, Lessee will operate the Aircraft in
accordance with the Aircraft manufacturer's standard operating practices and
procedures and shall also operate and maintain the Aircraft engines in
accordance with the Honeywell Maintenance Service Plan. Lessee shall also
maintain the Aircraft and Engine Log books in accordance with the rules and
regulations of the FAA and make appropriate entries as required in English.
These records shall be made available for examination by Lessor, and Lessee, at
the end of the term of this Agreement shall deliver the records to Lessor, if
Lessee defaults in its purchase obligation Hereunder.
Lessee shall, at Lessee's expense, perform:
(i) all maintenance and procedures required to remain in compliance
with the Cescom Maintenance Monitoring program, and all other maintenance and
procedures required by the manufacturer's recommended maintenance program
delineated in the Aircraft's maintenance manual or other publication form the
manufacturer; and
(ii) any other repairs, inspections and maintenance, as are required to
maintain the Aircraft, its avionics, and its engines in the same condition as
when received from Lessor, normal and reasonable wear and tear from ordinary use
excepted, including but not limited to any additional work mandated by the FAA
during the term of this Lease.
To the extent that Lessor pays for any such repairs for which Lessee is
responsible, Lessee shall reimburse Lessor for such costs and expenses within
ten (10) days of receipt of an invoice from Lessor
Lessee shall immediately notify Lessor in writing of any damage to the
Aircraft or of any situation arising with respect to the Aircraft or any of its
systems which situation will require unscheduled repair or maintenance to the
Aircraft or any of its systems.
Lessee agrees to permit Lessor or an authorized agent to inspect the
Aircraft at any reasonable time and to furnish any information in respect to the
Aircraft and its use that Lessor may reasonably request.
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Lessee agrees to keep Aircraft inside suitable hangar facilities at its
base location in Sarasota Bradenton International Airport (KSRQ).
VI. ALTERATIONS
Lessee shall not have the right to alter, modify, or make additions or
improvements to the Aircraft without the prior written consent of the Lessor.
Any such alterations, modifications, additions, or improvements permitted to be
made shall be paid for by the Lessee and shall become the property of the Lessor
if Lessee defaults in its obligation to purchase the Aircraft pursuant to the
terms hereof, and shall be subject to all of the terms of this Agreement.
VII. SECURITY DEPOSIT
Lessee shall pay a security deposit in the amount of sixty thousand
dollars ($60,000.00). Such security deposit shall be held in escrow at Aero
Records & Title Co., P. O. Xxx 00000, Xxxxxxxx Xxxx, XX 00000, 0000 Xxxxx
Xxxxxxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxxxx 00000 (0-000-000-0000).
VIII. LEASE RATE
A. BASE MONTHLY RATE. In consideration of the lease of the Aircraft,
Lessee agrees to pay Lessor a base monthly rental amount of Thirty Thousand
Dollars ($30,000.00) per month ("Base Rent"). Upon the Effective Date (and prior
to the delivery of the Aircraft by the Lessor to the Lessee), the first month's
payments of Base Rent shall be paid to Lessor. Thereafter, subsequent payments
of Base Rent shall be made each month thereafter during the term of this Lease
on the same day of the month as the Effective Date. In the event any monthly
payment is not received within 5 business days of it's respective due date, the
Lessee will be in default. The Lessee will have ten days to cure the default,
and in the event such default is not cured, the Lessor may take possession of
the Aircraft from the Lessee and the deposit shall be forfeited by the Lessee
and deemed earned by the Lessor.
B. "MSP COST". In addition to the payments of Base Rent, Lessee shall
also pay to Lessor on a monthly basis at the end of each month an amount equal
to One Hundred Thirty and 02/100's Dollars ($103.02) per operating hour per
engine during the preceding month (the "MSP Cost"). Such MSP Cost to be paid by
the Lessee is subject to price escalation beginning January 2004 as described in
Section B. of Exhibit A. to the Maintenance Service Plan Executive Operator
Contract (the "MSP Contract") dated November 8, 2003 between Honeywell and the
Lessor. IN the event the Lessee operates the Aircraft for less than 150
operating hours in any given 12 (twelve) month period (as measured from the
Effective Date), the Lessee shall be responsible for the minimum MSP Service
Charge. Such MSP Service Charge shall be calculated as 150 operating hours per
engine (300 operating hours total) multiplied by the MSP Rate per engine in
effect at the time, less the monthly MSP Cost previously remitted to the Lessee
during such period. In the event the lessee elects the extend the lease for the
six (6) month period, such MSP Service Charge will be based upon prorated
operating hours of 75 per engine (150 operating hours total).
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IX. LEASE PAYMENTS
All lease payments shall be paid to Lessor at the address set forth
below, or to such other person and at such other place as Lessor may form time
to time designate in writing.
X. LEASE TAXES
Lessee shall pay all sales tax on each monthly lease payment when such
lease payment becomes due. Lessee shall deliver such amount monthly to Lessor
for delivery to the applicable tax collector. Lessee claims that there is no
sales tax on leases in Florida and will hold Lessor harmless in that regard.
XI. INSURANCE
A. during the lease term and any extension thereof, Lessee shall
maintain All Risk Hull Insurance including ground, taxiing and in-flight
coverage (including coverage for war risk) on the Aircraft, including its
engines, instruments and, accessories, in an amount not less than Three Million
Four Hundred Ten Thousand Dollars ($3,410,000) and subject to no deductible; and
Bodily Injury, Passenger Liability and Property Damage Liability insurance
(including coverage for war risk) in an amount not less than Thirty Million
Dollars ($30,000,000.00). Such Hull Insurance shall contain a breach of warranty
provision in favor of Bank of America, N.A. (7800 Forsyth Boulevard,
M01-076-06-10, Clayton, MO 63015, Attention: Xx. Xxxxxx _____). Such insurance
policies must be issued by an insurance company acceptable to the Lessor and
must name the Lessor and Bank of America, N.A. as Loss Payees. Any policies of
insurance carried in accordance with this paragraph shall name Lessor and
thunder Aviation, N.A., Inc. as additional insureds and shall provide that the
insurance shall not be invalidated by any action or inaction of Lessee or its
agents, and shall insure Lessor regardless of any breach or violation of any
warranty, declaration or condition contained in such policies by Lessee or any
other person (other than Lessor), and shall further provide that no such
insurance may be cancelled or shall lapse prior to thirty (30) days after
receipt by Lessor of written notice by such insurers of such cancellation or
lapse. Lessee agrees to indemnify and hold Lessor harmless from any and
liability and loss arising out of the use or operation of the Aircraft by
Lessee, including but not limited to the complete or partial loss of the
Aircraft or its systems as a result of confiscation arising from the illegal
operation or use of the Aircraft by Lessee, Lessee's agents, representatives and
invitees.
B. Lessee agrees as the actual user of the Aircraft to strictly abide
by all the terms and conditions of the policy or policies on its part to be
performed. Lessee agrees also not to use the leased property for any purpose
which is excluded or prohibited under such insurance policy or policies.
C. In the event of cancellation of the insurance policy or policies
providing coverage outlined in paragraph A of this Section, for any cause
whatsoever, Lessee authorizes Lessor to provide a substituted insurance policy
or policies providing the coverage as outlined in paragraph A of this Section.
Lessor shall adjust the Base Rent by the amount attributable to such insurance
premiums, and Lessee agrees to pay such increased Base Rent>
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D. Lessee also agrees that ALL pilots will be qualified per the terms
of the insurance contract and to provide evidence of same as Lessor may
reasonably request.
E. Lessee also agrees to provide copies of all insurance documents and
pilot certificates to Lessor at such time as Lessor may reasonably request.
F. A certificate of insurance listing all insurance in force shall be
delivered to the Lessor.
XII. INSPECTION AND EXAMINATION
Lessor and any insurance company or companies insuring or financing the
Aircraft ("Interested Parties") are given the right and privilege, from time to
time, to inspect the leased property, and to examine the books and records
relating thereto, on the premises of Lessee, or wherever located, if, in the
sole judgment of the Interested Parties, the inspection is deemed necessary.
XIII. TOTAL DESTRUCTION OF AIRCRAFT
In the event of the total destruction or loss of the Aircraft, Lessee
shall pay to Lessor an amount equal to the greater of a) Three Million Four
Hundred Ten Thousand Dollars ($3,410,000.0) or b) the fair market value of the
Aircraft at the time of total destruction or loss, less any amount received by
Lessor from any All Risk Hull insurance on the Aircraft; the lease term created,
or any renewal or extension of it, shall be terminated immediately.
XIV. DEFAULT
Each of the following events shall constitute a default on the part of
the Lessee hereunder: failure of the Lessee to pay any installment of rent or
other required payment within five (5) business days after the date due; an
unauthorized assignment, sublease, or other violation of Section XV; any breach
or failure of the Lessee to observe or perform any of its other obligations
hereunder and the continuance of such default for ten (10) days after notice in
writing to the Lessee of the existence of such default; the insolvency or
bankruptcy of the Lessee or the making by the Lessee of any assignment for the
benefit of creditors, a trustee or receiver being appointed for the lessee or
for a substantial part of its property; the institution by or against the Lessee
of bankruptcy, reorganization, or insolvency proceedings; or the filing of a
Federal tax lien against the Lessee or any of its properties or against the
Aircraft. Upon the occurrence of any such default and upon written request by
Lessor this Lease shall terminate, the security deposit shall be forfeited by
the Lessee and deemed fully earned by the Lessor, the Aircraft shall be
surrendered to the Lessor, and at Lessor's option the provisions of Section XIX
hereof regarding sale and purchase of the Aircraft shall be void and of no
further force or effect. The Lessor may hold, use, sell, lease or otherwise
dispose of the Aircraft or keep it idle as the Lessor chooses, without affecting
the obligations of the Lessee as provided in this Agreement including the
monthly lease payments. IF the Lessee fails to deliver the Aircraft as provide
din this paragraph or converts or destroys the Aircraft, the Lessor may hold the
Lessee liable for a sum equal to the fair market value of the Aircraft, less any
insurance proceeds received by Lessor, in addition to all of the rent due. The
foregoing rights and remedies shall, be cumulative and not exclusive and shall
be in addition to and not in limitation of any other rights and remedies
available to Lessor at law or in equity. Lessor's waiver of any default on the
part of Lessee shall not constitute a waiver of subsequent defaults.
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XV. NON-ASSIGNABILITY
Lessee shall not assign this Agreement or any interest in the Aircraft
without the prior written consent of Lessor except that Lessee may assign its
rights and obligations under this Agreement o a controlled affiliated entity.
Subject to the foregoing, this Agreement inures to the benefit of, and is
binding on the heirs, legal representatives, successor, and assigns of the
parties.
XVI. OPERATING EXPENSES
Except as otherwise expressly provided herein, Lessee shall be solely
responsible for all cost and expense incurred in the use, storage, and operation
of the Aircraft. For purposes of clarification and not limitation, Lessee
acknowledges and agrees that Lessee shall be solely responsible for all fuel,
crew costs, crew training, hangar, local, state, and federal taxes and fees
incurred with respect to the operation of the Aircraft and Lessor shall have no
responsibility for such cost and expenses whatsoever. Any and all operating
expenses (fuel, oil, oxygen, hydraulic fluids, etc.), by reason of this Lease or
the possession, use or operation of the Aircraft by the Lessee pursuant hereto,
shall be paid by Lessee, or, if paid by Lessor, shall be reimbursed to Lessor by
Lessee in addition to the Lease Rate. The monthly Lease Rate set forth in
Paragraph VIII is exclusive of the Sales/Use Tax which may be applicable to this
transaction.
XVII. INSURANCE
It is understood that throughout the term of the lease and any
extension thereof, title to the Aircraft shall remain with the Lessor and shall
bear United States registration markings. Lessee has no right to consent to, and
agrees that it will not permit, any lien, claim or encumbrance of any kind to be
asserted against the Aircraft during the term of the lease and that it will
return the Aircraft to Lessor free and clear of any such liens, claims and/or
encumbrances. Any liens imposed in violation of this paragraph shall be
discharged by the Lessee at the Lessee's sole cost and expense, and Lessee
agrees to indemnify and save Lessor harmless against any such lien or liens.
Bank of America, N.A. must take a collateral assignment of this Lease,
and accordingly, both the Lessor and Lessee must provide signed, undated XX xxxx
releases to Bank of America, N.A.
XVIII. ACCIDENT AND CLAIM
Lessee shall immediately notify Lessor of each accident involving the
Aircraft, which notification shall specify the time, place, and nature o the
accident or damage, the names and addresses of parties involved, persons
injured, witnesses, and owners of properties damaged and such other information,
as may be known. Lessee shall advise Lessor al all correspondence, papers,
notices, and documents received by Lessee in connection with any claim or demand
involving or relating to the Aircraft or its operation, and shall aid in any
investigation institute by Lessor and in the recovery of damages from third
persons liable therefore.
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XIX. PURCHASE OBLIGATION
ON that date which is thirty six (36) months (or forty two (42) months
if the Lessee elects the six (6) month extension) after the Effective Date
(referred to in this Section XIX as the "Closing Date"), Lessee shall have an
option to purchase the Aircraft upon the price and terms set forth in this
Section XIX.
A. The purchase price for the Aircraft shall be determined as fair
market value per registered appraiser mutually agreeable to Lessor and Lessee.
The Purchase Price shall be subject tot adjustment as follows:
1. The Purchase Price shall be increased by all amounts due to Lessor
from Lessee under the terms of the Lease which remain unpaid as of the Closing
Date, including, but not limited to, Base Rent, MSP Cost, and Interest due on
any delinquent payments.
2. The Purchase Price shall be reduced by the value assigned to any
capital improvements (i.e. refurbishing and/or refixturing) made to the Aircraft
and paid for by the Lessee. Such value shall be mutually agreed upon by the
Lessor/Seller and Lessee/Purchaser prior to such capital improvements being
made. In addition, such deductions to the purchase price shall be reduced by
depreciation charged against the capital improvements for the period form the
date the capital improvement is made through the date of the purchase by the
Lessee/Purchaser.
3. The Purchase Price shall be increased by an amount equal to the
Transfer Fee calculated in accordance with Exhibit A to the MSP Contract. The
Lessee/Purchaser shall be responsible for any other costs necessary to transfer
the MSP contract from the Lessor to the Lessee with the exception of any amounts
due and owed by the Lessor to Honeywell up until the date of the sale of the
Aircraft to the Lessee/Purchaser. The MSP contract shall be transferred to the
Lessee upon the purchase of the Aircraft, but subject to Section IV.B. of the
MSP Contract.
The Purchase Price shall be paid in full in cash or the equivalent at
Closing.
B. Closing on the purchase and sale of the Aircraft ("Closing") shall
occur on the Closing Date. Closing will occur by and through the escrow services
of Aero Records & Title Co., X.X. Xxx 00000, Xxxxxxxx Xxxx, XX 00000, 0000 Xxxxx
Xxxxxxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxxxx 00000 (0-000-000-0000). At Closing,
Lessor shall tender all necessary documents to pass good and marketable title to
the Aircraft to the Lessee, in exchange for payment in full of the Purchase
Price in cash or the equivalent. Lessor warrants that it has good and marketable
title to the Aircraft and that said title will be transferred to Lessee upon
Closing free and clear of any liens, claims, charges or encumbrances. Delivery
of the aircraft shall occur contemporaneously with Closing at such location as
is mutually agree to by the parties outside the State of Florida. Lessee shall
be responsible for payment of all sales or transfer taxes, if any, due by reason
of the purchase and sale transaction.
X. XXXXXX MAKES NO WARRANTY OF ANY KIND WHATSOEVER, EITHER EXPRESSED OR
IMPLIED WITH RESPECT TO THE AIRCRAFT. LESSEE AGREES TO ACCEPT THE AIRCRAFT WITH
ALL FAULTS, "AS IS", "WHERE IS" AND ACKNOWLEDGES THAT LESSOR HAS MADE NO
WARRANTIES OF ANY KIND WHATSOEVER. FURTHER, LESSEE ACKNOWLEDGES THAT LESSOR IS
NOT THE MANUFACTURER, NOR HAS LESSOR BEEN SOLE OWNER OF THE AIRCRAFT SINCE ITS
MANUFACTURE. LESSOR MAKES NO WARRANTIES WHATSOEVER, EITHER EXPRESSED OR IMPLIED
WITH REGARD TO THE AIRCRAFT, ENGINE, AVIONICS, ENVIRONMENTAL SYSTEMS, NOR ANY
OTHER SYSTEMS, PARTS, MATERIALS, ACCESSORIES, INCLUDING BUT NOT LIMITED TO
LOGBOOKS, AIRCRAFT RECORDS, AIRWORTHINESS, FITNESS FOR A PARTICULAR PURPOSE OR
MERCHANTABILITY OR ANY OTHER ASPECT RELATED TO THE AIRCRAFT.
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D. At Closing upon delivery of the Aircraft, lessee shall execute a
receipt for said Aircraft.
E. Upon Closing, Lessee and Lessor shall complete and file all
documents necessary to evidence the sale contemplated herein with the Federal
Aviation Administration and any other federal, state, or local governmental
agencies with which filing is required.
X. Xxxxxx'x liability for failure to deliver the Aircraft at Closing
shall be to an action for specific performance. In no event shall Lessor be
liable for any consequential or special damages.
G. Lessee and Lessor agree to indemnify and to hold each other harmless
from any and all damages including reasonable attorneys' fees or commissions or
fees which may be incurred pursuant to or by reason of the acts of the other in
engaging or dealing with a broker. The obligations of Lessee and Lessor under
this paragraph G shall survive the Closing.
H. Lessee shall pay all sales tax on the Purchase Price of the Aircraft
or shall provide Lessor with a valid sales tax exemption certificate. If the
transaction is subject to sales tax, Lessee shall deliver such amount to Lessor
for delivery to the applicable tax collector.
XX. NOTICES
All notices required under the terms and provisions hereof shall be in
writing and any such notice shall become effective when deposited in the United
States mail, with certified return receipt postage for ordinary mail, prepaid,
addressed (i) if to Lessor at:
Attn: Xxxxxx X. Xxxxxxxx
Thunder Aviation Acquisitions, Inc.
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
or at such address as Lessor shall from time to time designate in writing to
Lessee, (ii) if to Lessee, at :
Attn: Xxxxxxx Xxxxxx
EP Aviation, Inc.
0000 X. Xxxxxxx Xxxxx - X0
Xxxxxxxx, Xxxxxxx 00000
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or at such other address as Lessee shall form time to time designate in writing
to Lessor.
XXI. ATTORNEYS' FEES
The prevailing party shall recover its reasonable expenses, court costs
and reasonable attorneys' fees in any litigation arising out of this Agreement,
including any appellate proceeding.
XXII. MISCELLANEOUS
Lessee agrees to pay Lessor interest (to the extent permitted by
applicable law) at the rate of twelve percent (12%) per annum on all sums not
paid by the Lessee to Lessor when due and owing under the provisions of this
Agreement form the date of such delinquency until paid. No party hereto shall,
by act, delay, omission or otherwise, be deemed to have waived any of its rights
or remedies hereunder, unless such waiver is in writing. Time is of the essence
of this Agreement.
XXIII. COUNTERPARTS; CONSTRUCTION
This Agreement shall be construed fairly, in accordance with the plain
meaning of its terms, and there shall be no presumption or inference drawn
against the party drafting this Agreement in interpreting the provisions hereof.
This document may be executed in one or more separate counterparts, each of
which when so executed, shall be deemed to be an original. Such counterparts
shall, together, constitute and shall be one and the same instrument.
XXIV. APPLICABLE LAW; VENUE
The laws of the State of Missouri shall govern any and all claims
arising under this Agreement. Venue of any action arising hereunder or in any
manner related to this Agreement may lie at Lessor's option in St. Louis County,
Missouri.
XXV. FILING
Lessor shall file the execute lease with the FAA immediately upon
Lessor's execution of the lease. A copy will be maintained on board the Aircraft
during the entire term of the Lease.
XXVI. FAA REQUIRED STATEMENT
In compliance with Federal Aviation Administration Regulation Section
91.23 (14 CFR 91.23) the parties, in addition to all prior provisions, hereby
agree as follows:
A. LESSOR CERTIFIES THAT TO THE BEST OF ITS KNOWLEDGE AND BELIEF, ALL
REQUIRED INSPECTIONS UNDER PART 135 OF THE FEDERAL AVIATION REGULATIONS HAVE
BEEN COMPLETED WITHIN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THIS
LEASE AND LESSOR AND LESSEE CERTIFY THAT OPERATIONS OF TIME AIRCRAFT WILL BE
CONDUCTED DURING THE TERM OF THE LEASE IN COMPLIANCE WITH THE APPLICABLE
MAINTENANCE AND INSPECTION REQUIREMENTS CONTAINED IN PART (ILLEGIBLE) OF THE
FEDERAL AVIATION ADMINISTRATION'S REGULATIONS.
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B. LESSEE, WHOSE NAME AND ADDRESS IS AS STATED HEREINABOVE, CERTIFIES
THAT IT WILL BE RESPONSIBLE FOR THE OPERATIONAL CONTROL OF THE AIRCRAFT DURING
THE ENTIRE LEASE TERM AND ANY EXTENSION THEREOF, AND ACKNOWLEDGES THAT IT
UNDERSTANDS ITS RESPONSIBILITIES FOR COMPLIANCE WITH APPLICABLE FEDERAL AVIATION
ADMINISTRATION REGULATIONS.
C. LESSEE ACKNOWLEDGES THAT AN EXPLANATION OF FACTORS BEARING ON
OPERATIONAL CONTROL AND PERTINENT FEDERAL AVIATION ADMINISTRATION REGULATIONS
CAN BE OBTAINED FROM THE NEAREST AVIATION DISTRICT OR AIR CARRIER OFFICE.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf by the respective offices thereunto
duly authorized at the day and year first written above.
THUNDER AVIATION ACQUISITIONS, INC.
a Delaware corporation
By: /S/ [SIGNATURE ILLEGIBLE]
Name: /S/ [SIGNATURE ILLEGIBLE]
Title: /S/ PRESIDENT/COO
EP AVIATION, INC.,
a Nevada corporation
By: /S/ XXXXXXXX XXXXXX
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Name: XXXXXXXX XXXXXX
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Title: VICE PRESIDENT
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