Exhibit 10.1
TIME SHARING AGREEMENT
This Agreement is made, effective as of July 24, 2002, by and between
ESA Services, Inc., a corporation organized under the laws of the State of
Delaware, with principal offices at 101 N. Pine Street, Spartanburg, SC 20303
(hereinafter referred to as "Lessor"), and Advance America Cash Advance Centers,
Inc. with principal offices at 135 N. Church Street, Spartanburg, SC 20302
(hereinafter referred to as "Lessee");
RECITALS
WHEREAS, Lessor is the owner of that certain civil Aircraft bearing the
United States Registration Number N242RB ("the Aircraft" or "Aircraft"), a
LearJet, Model 55B, Manufacturer's Serial Number 132;
WHEREAS, Lessor employs a fully qualified flight crew to operate the
Aircraft; and
WHEREAS, Lessor and Lessee desire to lease said Aircraft with flight
crew on a non-exclusive time sharing basis as defined in Section 91.501 (c) (1)
of the Federal Aviation Regulations ("FAR");
The parties agree as follows:
1. Lessor agrees to lease the Aircraft to Lessee pursuant to
the provisions of FAR 91.501 (c) (1) and to provide a
fully qualified flight crew for all operations. This
Agreement shall commence on the date that it is signed and
continue for one year after said date. Thereafter, this
Agreement shall be automatically renewed on a month to
month basis, unless sooner terminated by either party as
hereinafter provided. Either party may at any time
terminate this Agreement upon thirty (30) days written
notice to the other party, delivered personally or by
certified mail, return receipt requested, at the address
for said other party as set forth above.
2. Lessee shall pay Lessor for each flight conducted under
this Agreement the actual expenses of each specific flight
as authorized by FAR Part 91.501 (d). These expenses
include:
(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 operation;
(d) Insurance obtained for the specific flight;
(e) Landing fees, airport taxes and similar
assessments including, but not limited to IRC
Section 4261 and related excise taxes;
(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 not to exceed 100% of the
expenses listed in subparagraph (a) of this
paragraph.
3. Lessor will pay all expenses related to the operation of
the Aircraft when incurred, and will provide an invoice
and bill Lessee for the expenses enumerated in paragraph 2
above on the last day of the month in which any flight or
flights for the account of Lessee occur. Lessee shall pay
Lessor for said expenses within fifteen (15) days of
receipt of the invoice and bill therefor.
4. Lessee will provide Lessor 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
twenty-four (24) hours in advance of Lessee's planned
departure. 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 at some
time prior to scheduled departure as required by the
Lessor or Lessor's flight crew:
(a) proposed departure point;
(b) destination;
(c) date and time of flight;
(d) the number 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 Lessor
or Lessor's flight crew.
5. Lessor shall have final authority over the scheduling of
the Aircraft, provided, however, that Lessor will use its
best efforts to accommodate Lessee's needs and to avoid
conflicts in scheduling.
6. Lessor shall be solely responsible for securing
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. The pilot in
command shall have final and complete authority to
cancel any flight for any reason or condition
which in his judgment would compromise the safety
of the flight.
7. Lessor shall employ, pay for and provide to Lessee
a qualified flight crew for each flight undertaken
under this Agreement.
8. In accordance with applicable Federal Aviation
Regulations, the qualified flight crew provided by
Lessor will exercise all of its duties and
responsibilities in regard to the safety of each
flight conducted hereunder. 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. The parties
further agree that Lessor shall not be liable for
delay or failure to furnish the Aircraft and crew
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.
9. At all times during the term of this Lease, Lessor
shall cause to be carried and maintained, at
Lessor's cost and expense, physical damage
insurance with respect to the Aircraft in the
amount set forth below:
Aircraft Physical Damage $5,650,000.00
(No Deductible While
In Motion or Not in Motion)
At all times during the term of this Lease, Lessor
shall also cause to be carried and maintained, at
lessor's cost and expense, third party aircraft
liability insurance, passenger legal liability
insurance, property damage liability insurance,
and medical expense insurance in the amounts set
forth below:
Combined Liability Coverage for
Bodily Injury and Property Damage
Including Passengers -
Each Occurrence $100,000,000.00
Medical Expense Coverage -
Each Person $5,000.00
Lessor shall also bear the cost of paying any deductible amount on any
policy of insurance in the event of a claim or loss.
Any policies of insurance carried in accordance with this Lease: (i)
shall name lessee as an additional insured; and (ii) shall contain a waiver by
the underwriter thereof of any right of subrogation against Lessee. Each
liability policy shall be primary without right of contribution from any other
insurance which is carried by Lessee or Lessor and shall expressly provide that
all of the provisions thereof, except the limits of liability, shall operate in
the same manner as if there were a separate policy covering each insured.
Lessor shall submit this Lease for approval to the insurance carrier
for each policy of insurance on the aircraft. Lessor shall arrange for a
Certificate of Insurance evidencing appropriate coverage as to the Aircraft and
the satisfaction of the requirements set forth above to be given by its
insurance carriers to Lessor.
10. Lessee warrants that:
(a) It will use the Aircraft for and on account
of its own business only, and will not use
the Aircraft for the purpose of providing
transportation of passengers or cargo in air
commerce for compensation or hire;
(b) It shall refrain from incurring any mechanics
or other lien in connection with inspection,
preventative maintenance, maintenance or
storage of the Aircraft, whether permissible
or impermissible under this Agreement, nor
shall there by any attempt by any party
hereto to convey, mortgage, assign, lease or
any way alienate the Aircraft or create any
kind of lien or security interest involving
the Aircraft or do anything or take any
action that might mature into such a lien;
and
(c) During the term of this Agreement, it will
abide by and conform to all such laws,
governmental and airport orders, rules and
regulations, as shall from time to time be in
effect relating in any way to the operation
and use of the Aircraft by a timesharing
Lessee.
11. For purposes of this Agreement, the permanent base
of operation of the aircraft shall be Spartanburg,
SC.
12. Neither this Agreement nor any party's interest
herein shall be assignable to any other party
whatsoever. This Agreement shall inure to the
benefit of and be binding upon the parties hereto,
their heirs, representatives and successors.
13. TRUTH IN LEASING STATEMENT
THE AIRCRAFT, A LEARJET 55B MODEL, MANUFACTURER'S
SERIAL NO. 132, CURRENTLY REGISTERED WITH THE FEDERAL
AVIATION ADMINISTRATION AS N242RB HAS BEEN MAINTAINED AND
INSPECTED UNDER FAR PART 91 DURING THE 12 MONTH PERIOD
PRECEDING THE DATE OF THIS LEASE.
THE AIRCRAFT WILL BE MAINTAINED AND INSPECTED
UNDER FAR PART 91 FOR OPERATIONS TO BE CONDUCTED UNDER
THIS LEASE. DURING THE DURATION OF THIS LEASE, ESA
SERVICES, INC. 101 NORTH PINE STREET, SUITE 200,
SPARTANBURG, SOUTH CAROLINA 29302, IS CONSIDERED
RESPONSIBLE FOR OPERATIONAL CONTROL OF THE AIRCRAFT UNDER
THIS LEASE.
AN EXPLANATION OF FACTORS BEARING AN OPERATIONAL
CONTROL AND PERTINENT FEDERAL AVIATION REGULATIONS CAN BE
OBTAINED FROM THE NEAREST FAA FLIGHT STANDARDS DISTRICT
OFFICE.
THE "INSTRUCTIONS FOR COMPLIANCE WITH TRUTH IN
LEASING REQUIREMENTS" ATTACHED HERETO ARE INCORPORATED
HEREIN BY REFERENCE.
I, THE UNDERSIGNED, GREGORY R. MOXLEY, AS CHIEF
FINANCIAL OFFICER OF ESA SERVICES, INC., 101 NORTH PINE
STREET, SUITE 200, SPARTANBURG, SOUTH CAROLINA 29302,
CERTIFY THAT IT IS RESPONSIBLE FOR OPERATIONAL CONTROL OF
THE AIRCRAFT AND THAT I UNDERSTAND THE RESPONSIBILITIES
FOR COMPLIANCE WITH APPLICABLE FEDERAL AVIATION
REGULATIONS.
IN WITNESS WHEREOF, the parties have executed this Agreement.
ESA Services, Inc.
By: /s/ Gregory R. Moxley
--------------------------------- ______________________________
Gregory R. Moxley Date and Time of Execution
Chief Financial Officer
By: /s/ William W. Webster, IV
--------------------------------- ______________________________
William W. Webster, IV Date and Time of Execution
INSTRUCTIONS FOR COMPLIANCE WITH
"TRUTH IN LEASING" REQUIREMENTS
1. Mail a copy of the lease to the following address via
certified mail, return receipt requested, immediately upon
execution of the lease (14 C.F.R. 91.23 requires that the copy
be sent within twenty-four hours after it is signed):
Federal Aviation Administration
Aircraft Registration Branch
ATTN: Technical Section
P.O. Box 25724
Oklahoma City, Oklahoma 73125
2. Telephone the nearest Flight Standards District Office at
least forty-eight hours prior to the first flight under this
lease.
3. Carry a copy of the lease in the aircraft at all times.