Exhibit 10.120
EQUIPMENT LEASE
LEASE made as of the 4th day of April, 2004, by and between LJH, LTD.,
a Texas Limited Partnership, of 000 Xxxx Xxxx, Xxxxxxx, Xxxxx 00000, hereinafter
referred to as the Lessor, and TIMCO Aviation Services, Inc., a Delaware
Corporation, 000 Xxxxx Xxxx, Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000, hereinafter
referred to as the Lessee. In consideration of the mutual promises herein
contained, the parities hereto agree as follows:
ARTICLE I
LEASE
EQUIPMENT LEASED
The Lessor hereby leases to the Lessee and the Lessee hereby leases and
hires from the Lessor, the equipment and other property described in Exhibit "A"
attached hereto. All said equipment and other property is hereinafter called
"Equipment". Exhibit "A" shall be supplemented as additional equipment is
acquired by Lessor and included as Equipment leased hereunder.
ARTICLE II
TERM
DURATION
The term of this Lease commences on the date hereof and ends February
28, 2006.
ARTICLE III
RENT
3.01 Amount. The Rent for all items of Equipment shall be the sum
of $74,076.67 per month. The Lessee shall pay said Rent monthly on the 19th day
of each month beginning April 19, 2004, at the office of the Lessor, or at such
other place as the Lessor may from time to time designate in writing.
3.02 Security Deposit. Lessee has made no security deposit in
connection with this Lease.
3.03 Default. If the Lessee with regard to any item or items of
Equipment fails to pay Rent or other amount herein provided within TEN (10) days
after the same is due and payable, or if any execution or any other writ or
process shall be issued in any action or proceeding against the Lessee whereby
said Equipment may be seized, taken, or distrained, or if a proceeding in
bankruptcy, receivership, or insolvency shall be instituted by or against the
Lessee or its property, or if the Lessee shall enter into any arrangement or
composition with its creditors, or if Lessee, with regard to any item or items
of Equipment, fails to observe, keep, or perform any other provision of this
Lease required to be observed, kept, or performed by the Lessee, the Lessor
shall, if such default shall continue for FIVE (5) days after written notice
thereof, have the right to exercise any one or more of the following remedies:
(1) To declare the entire amount of Rent hereunder
immediately due and payable as to any or all items of Equipment,
without notice or demand to the Lessee.
(2) To xxx for and recover all Rent and other payments
then accrued or thereafter accruing, with respect to any or all items
of Equipment.
(3) To take possession of any or all items of Equipment,
without demand or notice, wherever the same may be located, without any
court order or other process of law. The Lessee hereby waives any and
all damages occasioned by such taking of possession. Any said taking of
possession shall not constitute a termination of this Lease as to any
or all items of Equipment unless the Lessor expressly so notifies the
Lessee in writing.
(4) To terminate this Lease as to any or all items of
Equipment.
(5) To pursue any other remedy at law or in equity.
Notwithstanding any said repossession, or any other action which the
Lessor may take, the Lessee shall be and remain liable for the full performance
of all obligations to be performed by the Lessee under this Lease.
All such remedies are cumulative, and may be exercised concurrently or
separately.
3.04 Interest. If the Lessee fails to pay any part of the Rent
herein reserved or any other sum required by the Lessee to be paid to the Lessor
within TEN (10) days after the due date thereof, the Lessee shall pay to the
Lessor interest on such delinquent payment from the expiration of said TEN (10)
days until paid at the rate of 18 percent per annum.
3.05 Offset. The Lessee may not assert, any existing or future
claims, defenses, and offsets against any Rent or other payments due hereunder.
The Lessee agrees to pay the Rent and other amounts hereunder before deducting
any claim, defense or offset which may be asserted by the Lessee or on its
behalf.
ARTICLE IV
USE
4.01 Manner of Use. The Lessee shall use the Equipment in a careful
and proper manner and shall comply with all laws, ordinances, and regulations
relating to the possession, use, or maintenance of the Equipment.
4.02 Markings. If at any time during the term of this Lease, the
Lessor supplies the Lessee with labels, plates or other markings, stating that
the Equipment is owned by the Lessor, the Lessee shall affix and keep the same
in a prominent place on the Equipment
ARTICLE V
INSPECTION
5.01 Lessee's Inspection. The Lessee acknowledges that he has
inspected the Equipment and finds that the Equipment is in good condition and
repair.
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5.02 Lessor's Inspection. The Lessor shall, at any and all times
during business hours, have the right to enter into and on the premises where
the Equipment may be located for the purpose of inspection the same or observing
its use. The Lessee shall give the Lessor immediate notice of any attachment or
other judicial process affecting any item of Equipment and shall, whenever
requested by the Lessor, advise the Lessor of the exact location of the
Equipment.
ARTICLE VI
ALTERATIONS AND REPAIRS
6.01 Alterations. Without the prior written consent of the Lessor,
the Lessee shall not make any alterations, additions, or improvements to the
Equipment. All additions and improvements of whatsoever kind or nature made to
the Equipment shall belong to and become the property of the Lessor on the
termination of this Lease.
6.02 Repairs. The Lessee, at its own cost and expense, shall keep
the Equipment in good repair, condition, and working order and shall furnish any
and all parts, mechanisms, and devices required to keep the Equipment in good
mechanical and working order.
ARTICLE VII
LOSS AND DAMAGE
7.01 Risk of Loss and Damage. The Lessee shall bear the entire risk
of loss and damage to the Equipment from any and every cause. No loss or damage
to the Equipment or any part thereof shall impair any obligation of the Lessee
under this Lease which shall continue in full force and effect.
7.02 Options of Lessor. In the event of loss or damage of any kind
to any item of Equipment, the Lessee, at the option of the Lessor, shall:
(1) Place the same in good repair, condition, and working
order; or
(2) Replace the same with like Equipment in good repair,
condition, and working order.
7.03 Stipulated Loss Value. If the Equipment is determined by the
Lessor to be lost, stolen, destroyed, or damaged beyond repair, the Lessee shall
replace the same with like Equipment in good repair, condition and working
order.
ARTICLE VIII
SURRENDER
On the expiration or earlier termination of this Lease, with respect to
any item of Equipment, the Lessee shall return the same to the Lessor in good
repair, condition, and working order (ordinary wear and tear resulting from
proper use thereof alone excepted).
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ARTICLE IX
INSURANCE AND TAXES
9.01 Insurance. The Lessee shall keep the Equipment insured against
all risks of loss or damage from every cause whatsoever for not less than the
fun replacement value thereof as determined by the Lessor. The Lessee shall
carry public liability and property insurance in the form and amount and with
companies approved by the Lessor, and shall be in the joint names of the Lessor
and Lessee. The Lessee shall pay the premiums therefor and shall deliver said
policies, or duplicates thereof, to the Lessor. Each insurer shall agree, by
endorsement on the policy issued by it or by independent instrument furnished to
the Lessor, that it will give the Lessor and Lessee THIRTY (30) days written
notice before the policy in question shall be altered or cancelled. The proceeds
of such insurance shall be applied toward the replacement, restoration, or
repair of the Equipment.
9.02 Taxes. The Lessee shall keep the Equipment free and clear of
all levies, liens, and encumbrances and shall pay all license fees, registration
fees, assessments, charges, and taxes which may now or hereafter be imposed on
the ownership, leasing, renting, sale, possession, or use of the Equipment
9.03 Lessee's Payment. In case of failure of the Lessee to procure
or maintain said insurance or to pay said fees, assessments, charges, and taxes,
as hereinbefore specified, the Lessor shall have the right, but shall not be
obligated, to effect such insurance, or pay said fees, assessments., charges,
and taxes, as the case may be. In that event, the cost thereof shall be
repayable to the Lessor with the next installment of Rent, and failure to repay
the same shall carry with it the same consequences, including interest at 18
percent per annum, as failure to pay any installment of Rent.
ARTICLE X
WARRANTIES
THE LESSOR MAKES NO WARRANTIES WHATSOEVER CONCERNING THE SUITABILITY
AND CONDITION OF THE EQUIPMENT.
ARTICLE XI
PERSONAL PROPERTY
The Equipment is, and shall at all times be and remain, personal
property, notwithstanding that the Equipment or any part thereof may now be, or
hereafter become, in any manner affixed or attached to, or embedded in, or
permanently resting on, real property or any building thereon.
ARTICLE XII
OWNERSHIP AND ASSIGNMENT
12.01 Ownership. The Equipment is, and shall at all times be and
remain, the sole and exclusive property of the Lessor. The Lessee shall have no
right, title, or interest therein, except as expressly set forth in this Lease.
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12.02 Lessee's Assignment. Without the prior written consent of the
Lessor, the Lessee may not:
(1) Assign, transfer, pledge, or hypothecate this Lease,
the Equipment or any part of it, or any interest in it; or
(2) Sublet the Equipment or any part of it.
12.03 Lessor's Assignment. Without the prior written consent of Lessee, the
rights of the Lessor under this Lease may be assigned, pledged, mortgaged,
transferred, or otherwise disposed of, either in whole or in part.
ARTICLE XIII
INDEMNITY
The Lessee shall indemnify the Lessor against, and shall hold the
Lessee harmless from, any and all claims, actions, suits, proceedings, costs,
expenses, damages, and liabilities, including attorney's fees, arising out of,
connected with, or resulting from the Equipment, including, without limitation,
the manufacture, selection, delivery, possession, use, operation, or return of
the Equipment.
ARTICLE XIV
PURCHASE OPTION
Provided Lessee is not otherwise in default hereunder, and no default
has occurred which is uncured, Lessee shall have the option to purchase the
Equipment at the termination of this Lease. The purchase price shall be $10.00.
ARTICLE XV
GENERAL PROVISIONS
15.01 Expenses. The losing party shall pay all costs and expenses,
including attorney's fees, incurred by the prevailing party in exercising any of
its rights or remedies hereunder or enforcing any of the terms, conditions or
provisions hereof.
15.02 Concurrent Remedies. No right or remedy herein conferred on or
reserved to either party is exclusive or any other right or remedy herein or by
law or equity provided or permitted; but each shall be cumulative or every other
right or remedy given hereunder or now or hereafter existing at law or in equity
or by statute or otherwise, and may be enforced concurrently therewith or from
time to time.
15.03 Nonwaiver. No covenant or condition of this Lease may be
waived except by the written consent of the party affected. Forbearance or
indulgence by either party in any regard whatsoever shall not constitute a
waiver of the covenant or condition to be performed by the party to which the
same may apply.
15.04 Entire Agreement. This Lease constitutes the entire agreement
between the Lessor and the Lessee and supersedes any prior understandings or
written or oral agreements
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between the parties respecting the within subject matter. It shall not be
amended, altered, or changed except by a written agreement signed by the parties
hereto.
15.05 Notices. Service of all notices under this Lease shall be
sufficient if given personally or mailed to the party involved at its respective
address hereinabove set forth, or at such address as such party may provide in
writing from time to time. Any such notice mailed to such address shall be
effective when deposited in the United States mail, duly addressed, and with
postage prepaid.
15.06 Gender; Number. Whenever the context of this Lease requires,
the masculine gender includes the feminine or neuter, and the singular number
includes the plural. Whenever the word "Lessor" or "Lessee" is used herein, it
shall include all assignees of the Lessor and Lessee.
15.07 Time. Time is of the essence in this Lease and in each and all
of its provisions.
15.08 Texas Law to Apply. This Lease shall be construed under and in
accordance with the laws of the State of Texas, and all obligations of the
parties created hereunder are performable in Xxxxxxx County, Texas.
15.09 Parties Bound. This Lease shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, executors,
administrators, legal representatives, successors and assigns where permitted by
this Lease.
15.10 Legal Construction. If any one or more of the provisions
contained in this Lease shall for any reason be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provision thereof and this Lease shall be construed
as if such invalid, illegal, or unenforceable provision had never been contained
herein.
15.11 Replacement Lease. This lease replaces in its entirety, that
any leases between the parties hereto related to the Equipment leased hereunder
("Prior Lease"). The Prior Lease is hereby terminated and of no further force
and effect.
(Signatures Continued on Next Page)
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IN WITNESS WHEREOF the parties hereto have executed this Lease and day
and year first above written.
LESSOR:
LJH, LTD.
By: DLH Management, LLC, General
Partner
By: /s/
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Xxxx X. Xxxxxx, President
LESSEE:
TIMCO AVIATION SERVICES, INC.
By: /s/
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its:
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SCHEDULE
EQUIPMENT LEASED
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