Exhibit 10.43
LEASE OF AIRCRAFT
Xxxx X. Xxxxxxx Limited Liability Company, a Delaware limited
liability company (hereinafter called "Lessor") enters into the following
lease with All Star Gas Corporation, a Missouri corporation (hereinafter
called "Lessee").
6. Lease of Airplane, Term, Rental. Lessor leases to Lessee,
subject to the terms and conditions, and for the consideration herein set
out, the following described airplane, 1978 Piper Model PA31T S/N
31T-7820061 (Serial No.), complete with the manufacturer's specified
equipment and the following optional equipment: (see attached) for a term
of 120 months, commencing on the date of the delivery of the airplane to
Lessee. In consideration for the lease of said airplane, Lessee shall pay
to Lessor in 36 monthly installments of $7,900.00 per month, with a final
monthly installment of remaining principal rental balance plus interest.
The parties shall have the option to renew the lease for an additional 36
month period. All payments shall be due and payable at the office of the
Lessor on the 1st day of the month, beginning January 1, 1998, a payment
default shall occur if any monthly payment is not received by lessor on the
first day of each month.
7. Security Deposit. Lessee has this day delivered to Lessor
the sum of $20,000.00 as an initial security deposit to be held by the
Lessor as security for the faithful performance of all terms, conditions
and agreements of this lease. Lessee acknowledges that Lessor may require
an additional security deposit to Lessor upon requests. Said sum, if not
applied toward payment of back rent or toward payment of damages suffered
by Lessor by reason of any breach hereunder by Xxxxxx, may at Lessor's
option, be applied to the final payment due under this lease, or will be
returned to Lessee upon the Lessee's full and complete compliance with all
terms, conditions and agreements of this lease. In the event of any
retaking or repossession of said airplane by Lessor due to Xxxxxx's default
hereunder. Lessor may apply the said security upon all damages suffered as
a result of said default, and may retain said security to apply on such
damages as may be suffered or which accrue thereafter by reason of said
default and breach.
8. Location of Airplane. The Lessee and Lessor agree that the
said airplane shall be permanently based at Xxxxx Xxxxx Airport, in
Lebanon, MO 65536. The Lessee shall not make any change in such permanent
base without first notifying the Lessor in writing of said change and
receiving the Lessor's approval.
9. Default. In the event that Lessee defaults in any of the
provisions or in any of the terms, conditions and covenants to be performed
hereunder upon the part of the Lessee, or in the event that Lessee should
be the subject of any bankruptcy proceeding or become insolvent, or make an
assignment for the benefit of creditors, or consent to the appointment of a
receiver or trustee, or if a trustee or receiver is appointed for the
Lessee without his consent, or if bankruptcy, reorganization, arrangement,
insolvency, or liquidation proceedings are instituted by or against the
Lessee, then in such event, Lessor, at its option, may declare this lease
as terminated and take immediate possession of the airplane or declare that
Xxxxxx has exercised its option to purchase the airplane. Lessee hereby
waives all rights under all exemption laws.
10. Right of Repossession. In the event Lessee defaults under
this lease, Lessor may take immediate possession of the airplane without
the necessity of legal action to recover possession of same, and Lessor is
hereby authorized to enter upon the premises where said aircraft may be
found without liability for trespassing for so entering, and Lessee shall
be liable to Lessor for the payment due upon termination as herein set out
as liquidated damages and not as a penalty.
11. Condition of Airplane, Title, Control. Xxxxxx acknowledges
receipt of the said airplane in good, safe and serviceable condition, and
that it is fit for use. It is understood and agreed between the parties
that title to the airplane remains with the Lessor, but that the Lessor
shall have no control over the operation of the airplane; however, nothing
stated herein shall authorize the Lessee or any other person to operate the
airplane or to incur any liability or obligation on behalf of the Lessor.
Lessor warrants that it is the absolute owner of the said airplane and that
it has the full right to lease the airplane to the Lessee.
12. Return of Airplane. Xxxxxx agrees that upon the termination
of this lease, Xxxxxx will return said airplane to Lessor in the same and
as good a condition as when received by Lessee, normal wear and tear
excepted. In the event the Lessee does not return the airplane in such
condition, the Lessor may make any repairs necessary to restore the
airplane to such condition, and the Lessee agrees to reimburse the Lessor
for any expense involved for said restoration.
13. License Fees, Taxes. Lessee agrees to pay when due, all
license fees and other fees and assessments necessary for the securing of
licenses, certificates of title and other similar permits for the operation
of said airplane, such certificates showing title in the Lessor, and
further agrees to pay when due, all taxes now or hereafter imposed by any
state, federal or local government upon said airplane, or upon the leasing,
use or operation thereof whether assessed to Lessor or Lessee. Upon the
payment of fees, assessments and taxes, Xxxxxx will immediately deliver the
receipt for such payment to Lessor.
14. Insurance. Lessee assigns and shall secure and maintain in
effect throughout the lease term such insurance policies covering said
airplane as follows:
Full Hull Coverage, including all risk, both in flight
and not in flight in an amount not less than $1,950,000.
In the event that repairs are made for damage, Xxxxxx
agrees to pay the deductible amount as provided in the
policy.
Liability Insurance will be obtained by the Lessee and
written in the name of the Lessee, the Lessor and the
Members of the Lessor. Copies of all insurance policies
or certificates are attached to each copy of the lease or
will be provided upon request.
15. Loss of or Damage to Airplane. In the event of any loss or
damage to the airplane, the Lessee shall immediately report said loss or
damage to the Lessor, the insurance company and to any and all applicable
governmental agencies, both federal and state, and shall furnish such
information and execute such documents as may be required and necessary to
collect the proceeds from any insurance policies. In this event, the
rights, liabilities and obligations of the parties hereto shall be as
follows:
(a) In the event that the airplane is lost or is damaged beyond
repair, the proceeds of said insurance policy or policies shall be
payable to Lessor. If the proceeds of insurance are not sufficient to
cover the loss or damage to the airplane, except by reason of the
Lessee's failure to procure the amount of insurance specified above,
any difference between the proceeds of insurance and the sum
remaining to be paid under this lease, shall be the responsibility of
the Lessee, and Xxxxxx shall pay said difference to the Lessor. Then
and in that event this lease shall terminate.
(b) In the event that the airplane is partially damaged, then
this lease shall remain in full force and effect. The Lessee shall,
at its cost and expense, fully repair the airplane in order that the
airplane shall be placed in as good as the same condition as it was
in prior to the damage. Upon the damage being repaired and the
airplane being in the same condition as prior to the damage, the
Lessor shall reimburse Lessee out of any proceeds of insurance
covering such damage received Lessor, this payment to be contingent
upon the Lessee furnishing to Lessor the necessary information and
documents required for the recovery of said insurance proceeds. The
payment of this amount is further contingent upon the approval by the
Lessor of the repairs made by the Lessee, including the cost thereof,
and the airplane placed as nearly as possible in the same condition
as before said damage occurred. Any and all risk of loss or damage
shall be borne by the Lessee.
16. Restrictions on Use. During the term of this lease, the
Lessee shall have complete use of the airplane; however, such use shall be
restricted to the ordinary purposes of Xxxxxx's business and pleasure.
Lessee will not use, operate, maintain or store the airplane improperly,
carelessly or in violation of this lease, or of any applicable law or
regulation, federal or state, or any instructions furnished therefor by the
Lessor. Lessee shall not operate said airplane for hire. Lessee shall not
operate said airplane beyond the geographical limits as defined in the
attached insurance policies; nor use the airplane for any purpose other
than that stipulated in the insurance policies, unless it first notifies
the Lessor in time for the Lessor to approve of said operation and obtain
proper insurance coverage for the intended trip. The cost of any additional
insurance shall be borne by Lessee.
17. Maintenance, Repairs, Inspection. Xxxxxx agrees at all
times to keep the airplane in a fully operative condition and completely
airworthy; and further to keep said airplane in mechanical condition
adequate to comply with regulations as set forth by the Department of
Transportation and the Federal Aviation Administration and any other
regulations as set forth by any federal, state or local governing body,
domestic or foreign, having power to regulate or supervise the airplane or
the Lessee's maintenance, use or operation of said airplane. Xxxxxx agrees
that it will make no structural modifications on said airplane without
first having been granted written permission to do so by the Lessor. The
Lessor or its agent shall have the right at any reasonable times to fully
inspect the said airplane and any parts thereof to determine their
condition and to further determine whether or not the Lessee is performing
according to the covenants and conditions herein contained relative to the
proper care and maintenance of said airplane.
18. Operation of Airplane. The Lessee agrees that the subject
airplane will at all times during the term of this lease be operated by
safe, careful and duly qualified pilots employed and paid or contracted for
by the Lessee. The Lessee further agrees that the Lessor may demand the
removal of any pilot operating the said airplane provided said demand is
based upon sufficient cause. Lessee warrants that each of the pilots who
will pilot said airplane shall be a duly qualified pilot whose license is
in good standing and who meets the requirements established and specified
by the insurance policies attached to and made a part of this lease. Xxxxxx
further agrees that the pilots operating said airplane must meet the
minimum requirements established by the insurance carrier chosen by Xxxxxx
and approved by Xxxxxx.
19. Indemnity of Lessor. The Lessee agrees, as part
consideration of this lease, to forever unconditionally indemnify and save
harmless the Lessor and its members, agents, representatives, managers,
employees, successors and assigns, from and against any and all loss,
damage, injury or death claims, demands and liability of every nature at
any time and from time to time (including, without limitation, claims
involving strict or absolute liability in tort), including all costs and
reasonable attorneys' fees, arising directly or indirectly from or in
connection with the possession, maintenance, use or operation of the
subject airplane. The Lessee further unconditionally agrees to hold Xxxxxx
and its successors and assigns harmless from any and all liability arising
at any time and from time to time from Xxxxxx's loss of use of said
airplane.
20. Indemnity of Members of Lessor. The Lessee agrees, as part
consideration of this lease, to forever unconditionally indemnify and save
harmless the Members of Lessor and their agents, representatives,
employees, successors and assigns, from and against any and all loss,
damage, injury or death claims, demands and liability of every nature at
any time and from time to time (including, without limitation, claims
involving strict or absolute liability in tort), including all costs and
reasonable attorney's fees, arising directly or indirectly from or in
connection with the possession, maintenance, use or operation of the
subject airplane. The Lessee further unconditionally agrees to hold the
Members of Xxxxxx and their agents, representatives, employees, successors
and assigns harmless from any liability arising from Xxxxxx's loss of use
of said airplane.
21. Assignment of Lessee. Xxxxxx agrees not to assign this
lease or any interest therein without the prior written consent of Xxxxxx,
or to sublet said airplane or to part with the possession of same, either
by voluntary act, operation of law or otherwise. In the event that the
Lessee sublets or attempts to sublet same, or voluntarily or involuntarily
parts with possession of same, or attempts to move said airplane from the
airport where it is required to be kept, except while being in the ordinary
business of Lessee or for its pleasure, or in any manner violates any of
the terms hereof, then in either or any of these events this lease shall be
the option of the Lessor immediately terminate and Lessor shall be entitled
to immediate possession of said airplane. Xxxxxx agrees to pay all
attorney's fees, collection charges or other expenses, occasioned by
Xxxxxx's failure to abide by any of the provisions hereof.
22. Assignment of Lessor. It is understood by the parties
hereto that the Lessor may assign this lease and said airplane, and that
such assignee may also assign the same. All rights of Lessor hereunder
shall be succeeded to by the assignee under any such assignment, and said
assignee's title to this lease, to the rental herein provided for and to
the said airplane shall be free from all defenses, setoffs or counterclaims
which Lessee may be entitled to assess against Xxxxxx; it being understood
and agreed that any such assignee does not assume any obligations of the
Lessor herein named, and that Xxxxxx may separately claim against Xxxxxx as
to any matters which Lessee may be entitled to assert against the Lessor.
23. Entire Agreement, Severability, Successors. Lessee and
Lessor hereby agree that no representation, statement or agreement other
than those set forth herein shall be binding upon either of the parties
hereto unless specified in writing, signed by each and purporting to be an
express modification of this lease. Should any provisions of this lease be
held invalid, such provisions shall be deemed to be eliminated insofar as
it is declared invalid and the balance of the lease shall in no wise be
affected thereby. Subject to the terms hereof, the covenants and conditions
of this lease shall inure to the benefits of and be binding upon the heirs,
executors, administrators, personal representatives, trustees, successors
or assigns of the parties hereto.
24. Controlling Law and Jurisdiction. The validity,
interpretation and performance of this lease shall be subject to and
construed under the laws of Missouri, without regard to principles of
conflicts of law.
25. Waiver of Conflict of Interest. Xxxx X. Xxxxxxx, Limited
Company and All Star Gas Corporation have both been represented in the
drafting of this lease by the law firm of Xxxxxx & Xxxxxxxx X.X. Xxxx X.
Xxxxxxx, Limited Company and All Star Gas Corporation each hereby agree to
the dual representation of them by Xxxxxx & Xxxxxxxx X.X. and each of them
waives any present or future claim of conflict of interest.
IN WITNESS WHEREOF, the parties hereto have placed their hands
and seals on this 31st day of December, 1998.
All Star Gas Corporation, a Missouri corporation
By: /s/ Xxxx X. Xxxxxxx
___________________________________________
Xxxx X. Xxxxxxx, President
ATTEST:
/s/ Xxxxxxx Xxxxxx
________________________
Secretary
Xxxx X. Xxxxxxx, Limited Liability Company
A Delaware Limited Liability Company
/s/ Xxxxxxx Xxxxxx
_______________________________________________
Xxxxxxx Xxxxxx, Manager
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YEAR MFG. MANUFACTURER OF AIRCRAFT MODEL NO. SERIAL NO.
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1978 Piper PA31T 31T-7820061
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MFG. OF ENGINE MODEL ENGINE SERIAL FAA NO. HOME AIRPORT
ENGINE(S) NO.(S) NO(S)
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Xxxxx & Xxxxxxx P&W PT6A-28 N303KL Xxxxx X. Xxxxx
P&W PT6A-28
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DESCRIBE EXTRA EQUIPMENT: Bendix radar, 11 Xxxxxx Fly Buddy GPS
w/datacard, King Gold Crown - standard package.
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