EX-10.2 10 d063021dex102.htm EX-10.2 d063021dex102
 
 
 
 
Exhibit 10.2
 
 
 
TIME SHARING AGREEMENT
 
This
 
Time
 
Sharing
 
Agreement
 
(the
 
“
Agreement
”)
 
is
 
entered
 
into
 
as
 
of
 
the
 
last
 
date
 
set
forth
 
under
 
the
 
signatures
 
of
 
the
 
parties,
 
by
 
and
 
between
_____________
,
 
with
 
offices
 
at
_____________
 
(“
Lessor
”),
 
and
_____________
,
 
with
 
a
 
business
 
address
 
of
_____________
 
(“
Lessee
”).
 
 
RECITALS
 
 
WHEREAS
_____________
 
(“
Owner
”)
 
is
 
the
 
registered
 
owner
 
of
 
the
 
aircraft
(“
Aircraft
”) listed on
Exhibit B
 
attached hereto; and
 
 
WHEREAS, Lessee desires to lease said Aircraft with flight crew from
 
Lessor pursuant to
this Agreement
 
on a
 
non-exclusive time-sharing
 
basis as
 
defined in
 
14 C.F.R.
 
§ 91.501(c)(1)
 
of
the Federal Aviation Regulations (“
FAR
”);
 
 
The parties agree as follows:
 
1.
Provision of
 
Aircraft; Term
. Lessor
 
agrees to
 
lease the
 
Aircraft to
 
Lessee pursuant
to the provisions of 14 C.F.R. § 91.501(c)(1) and, in accordance with Section 7 hereof, to provide
a fully qualified flight crew for all
 
operations. This Agreement shall commence on
 
the date hereof
(the “
Effective Date
”), and continue
 
for the remaining
 
portion of the
 
Calendar Year
 
(“
Calendar
Year
” being defined as
 
the period beginning January
 
1
st
 
of each year
 
and ending December 31
st
 
of
the
 
same
 
year).
 
Thereafter,
 
this
 
Agreement
 
shall
 
automatically
 
renew
 
on
 
January
 
1
st
 
of
 
each
subsequent Calendar
 
Year,
 
unless and
 
until terminated
 
pursuant to
 
the terms
 
of this
 
Agreement.
Except as otherwise provided in Section 9, either party may at any time terminate this Agreement
upon ten (10) business days’
 
written notice to the other party.
 
 
2.
Reimbursement
.
 
Lessee
 
shall
 
pay
 
Lessor
 
for
 
each
 
flight
 
conducted
 
under
 
this
Agreement
 
(including
 
all
 
applicable
 
“deadhead”
 
positioning
 
flights)
 
as
 
agreed
 
by
 
Lessor
 
and
Lessee, but
NOT MORE THAN
 
the amount authorized by 14 C.F.R.
 
§ 91.501(d). The expenses
authorized by 14 C.F.R. § 91.501(d) 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;
 
 
 
 
Exhibit 10.2
 
 
(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% of the expenses
 
listed in
subsection
 
(a)
of this Section 2.
 
 
3.
Expenses; Invoicing; Taxes
. Lessor will pay all expenses related to the
 
operation
of the Aircraft when
 
incurred and will
 
provide an invoice
 
to Lessee for the
 
expenses enumerated
in Section
 
2 as
 
well as
 
all applicable
 
FET and
 
any other
 
applicable Taxes (as such
 
terms are
 
defined
herein),
 
and Lessee
 
shall pay
 
to Lessor
 
all such
 
invoiced amounts
 
upon Lessee’s
 
receipt of
 
such
invoices, all in accordance with Lessor’s internal procedures.
 
 
Except
 
as
 
may
 
otherwise
 
be
 
specifically
 
provided
 
in
14
 
C.F.R.
 
§
91.501
,
but
notwithstanding anything else to the
 
contrary herein, and whether or not
 
such Taxes
 
are invoiced
to
 
Lessee
 
in
 
accordance
 
with
 
this
 
Section
 
3,
 
Lessee
 
shall
 
be
 
responsible
 
for,
 
and
 
agrees
 
to
indemnify,
 
defend,
 
and
 
hold
 
Lessor
 
harmless
 
from
 
and
 
against,
 
and
 
shall
 
pay
 
to
 
Lessor
 
in
accordance with this Section 3
 
(or, in all other cases, to
 
the applicable authority when
 
due) the full
amount of any
 
and all
 
FET (as defined
 
herein), sales,
 
use, retail, excise,
 
value added
 
tax (VAT),
or other taxes, fees, duties, claims, or charges of
 
any and every kind or nature whatsoever as well
as any penalties, interest and
 
attorneys’ fees relating thereto that
 
are or may be assessed,
 
levied, or
imposed by any federal, foreign, national, state, county, district, city, local, or other governmental
authority
 
or
 
jurisdiction
 
or
 
airport
 
as
 
a
 
result
 
of
 
this
 
Agreement
 
and/or
 
any
 
flights
 
conducted
pursuant to
 
this Agreement.
 
Without
 
limiting the
 
generality of
 
the foregoing,
 
Lessor and
 
Lessee
specifically acknowledge that
 
all flights under
 
this Agreement shall
 
be subject to
 
commercial air
transportation excise taxes pursuant to
26 U.S. Code § 4261 (any and all such taxes, “
FET
”)
.
 
 
The
 
indemnities
 
and
 
Lessee’s
 
obligations
 
set
 
forth
 
in
 
this
 
Section
 
3
 
shall
 
survive
 
the
termination of this Agreement.
 
4.
Flight
 
Requests
.
 
Lessee
 
will
 
provide
 
Lessor
 
with
 
requests
 
for
 
flight
 
time
 
and
proposed flight schedules in
 
accordance with Lessor’s internal
 
procedures and as
 
far in advance of
any given
 
flight as
 
possible. Requests
 
for flight
 
time shall
 
be in
 
a form,
 
whether written
 
or oral,
mutually convenient to,
 
and agreed upon
 
by the
 
parties and in
 
accordance with
 
Lessor’s internal
procedures.
 
 
5.
 
Flight
 
Scheduling
.
 
Lessor
 
shall
 
have
 
final
 
authority
 
over
 
the
 
scheduling
 
of
 
the
Aircraft, provided that
 
Lessor will
 
use reasonable
 
efforts to
 
accommodate Lessee’s
 
needs and
 
to
avoid conflicts in scheduling, consistent
 
with Lessor’s (and any other
 
operator and/or lessee of
 
the
Aircraft’s)
 
use
 
of
 
the
 
Aircraft
 
and
 
as
 
permitted
 
by
 
(and subject
 
to
 
the
 
requirements
 
of)
 
Owner.
 
 
 
 
 
Exhibit 10.2
 
Lessor shall have no obligation under this Agreement to arrange for
 
or to provide air travel in the
event that the Aircraft
 
is unavailable to satisfy
 
Lessee’s requests
 
for flight time
 
for any reason or
if Owner otherwise does not consent to such use.
 
6.
 
Aircraft
 
Maintenance
.
 
Lessor
 
shall
 
be
 
solely
 
responsible
 
for
 
securing
 
repairs,
maintenance,
 
preventive
 
maintenance
 
and
 
required
 
or
 
otherwise
 
necessary
 
inspections
 
of
 
the
Aircraft, and
 
shall take
 
such requirements
 
into account
 
in scheduling
 
the Aircraft.
 
No repair, period
of
 
maintenance,
 
preventive
 
maintenance,
 
or
 
inspection
 
shall
 
be
 
delayed
 
or
 
postponed
 
for
 
the
purpose
 
of
 
scheduling
 
the
 
Aircraft,
 
unless
 
said
 
repair,
 
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.
 
 
7.
Flight Crew
. Lessor shall provide to
 
Lessee a qualified flight crew for
 
each flight
undertaken under this Agreement.
 
8.
Operational
 
Authority
.
 
In
 
accordance
 
with
 
the
 
applicable
 
FARs,
 
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.
 
The
pilot
 
in
 
command
 
shall
 
have
 
final
 
and
 
complete
 
authority
 
to
 
delay
 
or
 
cancel
 
any
 
flight
 
for
 
any
reason or
 
condition
 
which
 
in
 
his judgment
 
would compromise
 
the
 
safety of
 
the
 
flight.
 
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 the demands of the Lessor’s
 
(or any other operator or lessee of the
 
Aircraft’s) business
operations
 
requiring
 
use
 
of
 
the
 
Aircraft,
 
actions
 
or
 
inactions
 
(including
 
the
 
withdrawal
 
or
withholding
 
of,
 
or
 
refusal
 
to
 
provide,
 
consent)
 
of
 
Owner,
 
government
 
regulation
 
or
 
authority,
mechanical difficulty,
 
war, civil commotion,
 
strikes or labor disputes, weather conditions, acts
 
of
God, or any other cause or occurrence beyond Lessor’s reasonable control.
 
9.
Insurance
. At
 
all times
 
during the
 
term of
 
this Agreement,
 
Lessor shall
 
maintain
the following insurance coverages from insurance carriers acceptable to Lessee:
 
 
(a)
 
Aircr
aft Physical
 
Damage insurance in
 
an amount
 
at least equal
 
to the fair
market value of the Aircraft; and
 
 
(b)
 
Aircraft
 
Liability
 
Insurance
–
 
Combined
 
Single
 
Limit
 
Bodily
 
Injury
 
and
Property
 
Damage,
 
Including
 
Passengers,
 
of
 
at
 
least
 
$100,000,000
 
for
 
each
occurrence.
 
Such coverage shall:
 
i.
 
Be
 
primary,
 
non-contributing
 
with
 
any
 
insurance
 
maintained
 
by
Lessee;
 
ii.
 
Name Lessee and his guests as additional insureds;
 
 
Exhibit 10.2
 
 
iii.
 
Expressly waive subrogation against Lessee; and
 
iv.
 
Provide at
 
least thirty
 
(30) days
 
advance written
 
notice to
 
Lessee of
any material changes, cancellation, or non-renewal.
 
If
 
requested
 
in
 
writing
 
by
 
Lessee,
 
Lessor
 
shall
 
furnish
 
Lessee
 
with
 
duly
 
executed
certificates
 
evidencing
 
all
 
required
 
insurance
 
coverages,
 
limits
 
and
 
requirements,
 
together
 
with
satisfactory evidence
 
of the
 
premium payment.
 
Lessee retains
 
the right
 
to terminate
 
this Agreement
immediately if Lessor fails to
 
provide adequate and proper evidence of required
 
insurance within
a reasonable time after Lessee’s written request for such evidence.
 
Lessor shall also bear the
 
cost of paying any deductible amount
 
on any policy of insurance
in the event of a claim or loss.
 
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.
 
10.
Lessee Warranties
. Lessee warrants that:
 
(a)
 
Lesse
e
 
will
 
use
 
the
 
Aircraft
 
for
 
and
 
on
 
account
 
of
 
Lessee
 
and
 
Lessee’s
guests’
 
personal
 
travel
 
needs
 
and
 
will
 
not
 
use
 
the
 
Aircraft
 
for
 
the
 
purpose
 
of
 
providing
transportation of passengers or cargo in air commerce for compensation or hire; and
 
(b)
 
Lessee will
refrain from incurring any mechanics
 
or other lien and shall
 
not
attempt
 
to
 
convey,
 
mortgage,
 
assign
 
or
 
lease
 
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.
 
 
The terms of this Section 10 shall survive the termination of this Agreement.
 
11.
Lessor Indemnity
. Lessor hereby indemnifies Lessee and agrees to hold harmless
Lessee from and against
 
any liabilities, obligations, losses
 
(excluding loss of anticipated
 
profits),
damages,
 
claims,
 
actions,
 
suits,
 
costs,
 
expenses
 
and
 
disbursements
 
(“Losses”)
 
imposed
 
on,
incurred
 
by
 
or
 
asserted
 
against
 
Lessee
 
arising
 
out
 
of
 
or
 
resulting
 
from
 
the
 
ownership,
 
lease,
maintenance, repair,
 
possession, use,
 
operation,
 
condition, or
 
other disposition
 
or application
 
of
the
 
Aircraft.
 
Lessor’s
 
obligation
 
to
 
indemnify
 
Lessee
 
under
 
this
 
Section
 
11
 
shall
 
not,
 
however,
extend to any Loss (i)
 
resulting from the willful misconduct or
 
gross negligence of Lessee, (ii) to
the
 
extent
 
such
 
Loss
 
is
 
a
 
direct
 
result
 
of
 
any
 
failure
 
of
 
Lessee
 
to
 
comply
 
with
 
any
 
covenants
required to be performed
 
or observed by him
 
under this Agreement, or
 
(iii) to the extent such
 
Loss
is a
 
direct result
 
of any
 
breach by
 
Lessee of
 
any of
 
Lessee’s warranties or
 
representations contained
in this Agreement.
 
 
 
 
 
 
 
 
 
 
Exhibit 10.2
 
12.
Lessee Indemnity
. Lessee hereby indemnifies Lessor and agrees to hold harmless
Lessor from and against any Losses imposed on, incurred by or asserted against Lessor (i) arising
out of or
 
resulting from
 
the willful misconduct
 
or gross
 
negligence of
 
Lessee, (ii) to
 
the extent
 
such
Loss
 
is
 
a
 
direct
 
result
 
of
 
any
 
failure
 
of
 
Lessee
 
to
 
comply
 
with
 
any
 
covenants
 
required
 
to
 
be
performed or observed
 
by him,
 
or (iii) to
 
the extent
 
such Loss is
 
a direct result
 
of any breach
 
by
Lessee of any of Lessee’s warranties or representations contained in this Agreement.
 
 
13.
Permanent Base
 
of Operations
. For
 
purposes of
 
this Agreement,
 
the permanent
base of operation of the Aircraft shall be in __________.
 
14.
No
 
Assignment;
 
Successors
 
and
 
Assigns;
 
Entire
 
Agreement
.
Neither
 
this
Agreement nor any party’s
 
interest herein shall be
 
assignable.
 
This Agreement shall inure
 
to the
benefit
 
of
 
and
 
be
 
binding
 
upon
 
the
 
parties
 
hereto,
 
their
 
representatives
 
and
 
successors.
 
This
Agreement
 
constitutes
 
the
 
entire
 
understanding
 
between
 
Lessor
 
and
 
Lessee,
 
and
 
any
 
change
 
or
modification must be in writing and signed by both of Lessor and Lessee.
 
15.
 
No Joint Venture
.
 
Nothing herein shall be construed to create a partnership, joint
venture, franchise, or any relationship of principal and agent between Lessor and Lessee.
 
16.
Amendments; Waivers
. This Agreement
 
shall not be modified
 
or amended except
by an
 
instrument in
 
writing signed
 
by authorized
 
representatives of
 
Lessor and
 
Lessee. Waivers
shall not
 
be effective
 
except in
 
writing signed
 
by an
 
authorized representative
 
of the
 
party to
 
be
bound.
 
 
 
17.
 
Notices
.
 
All
 
communications
 
and
 
notices
 
provided
 
for
 
herein
 
shall
 
be
 
in
 
writing
and shall become effective when delivered by
 
electronic mail transmission or by Federal Express
or other overnight
 
courier or four
 
(4) days following
 
deposit in the
 
United States mail,
 
with correct
postage for first-class mail prepaid, addressed to Lessor or
 
Lessee at their respective addresses set
forth under
 
their signatures
 
below,
 
or else
 
as otherwise
 
directed by
 
the other
 
party from
 
time to
time in writing.
 
18.
 
Applicable Law;
 
Counterparts
. This
 
Agreement is
 
entered into
 
under,
 
and is
 
to
be construed in accordance with, the laws of Texas and the applicable FAR.
 
This Agreement may
be
 
executed
 
by
 
the
 
parties
 
by
 
digital
 
signature
 
or
 
electronic
 
or
 
facsimile
 
transmission
 
in
counterparts,
 
each
 
of
 
which,
 
when
 
duly
 
executed,
 
whether
 
by
 
digital
 
signature
 
or
 
electronic
 
or
facsimile transmission, shall constitute an original hereof.
 
 
19.
TRUTH-IN-LEASING STATEMENT
 
UNDER 14 C.F.R. § 91.23
.
 
THE
 
AIRCRAFT
 
LISTED
 
ON
 
EXHIBIT
 
B
 
ATTACHED
 
HERETO
 
HA
S
 
BEEN
MAINTAINED
 
AND
 
INSPECTED
 
UNDER
 
FAR
 
PART
 
91
 
DURING
 
THE
 
12
 
MONTH
PERIOD PRECEDING THE DATE OF THIS AGREEMENT OR, IF THE AIRCRAFT IS LESS
THAN
 
12
 
MONTHS
 
OLD,
 
SINCE
 
NEW.
 
__________,
 
CERTIFIES
 
THAT
 
THE
 
AIRCRAFT
LISTED
 
ON
 
EXHIBIT
 
B
 
ATTACHED
 
HERET
O
 
IS
 
COMPLIANT
 
WITH
 
APPLICABLE
MAINTENANCE
 
AND
 
INSPECTION
 
REQUIREMENTS
 
OF
 
FAR
 
PART
 
91
 
FOR
 
THE
Exhibit 10.2
 
OPERATIONS
 
TO BE CONDUCTED UNDER THIS AGREEMENT.
 
 
THE
 
AIRCRAFT
 
LISTED
 
ON
 
EXHIBIT
 
B
 
ATTACHED
 
HERETO
 
WILL
 
BE
MAINTAINED
 
AND
 
INSPECTED
 
UNDER
 
FAR
 
PART
 
91
 
FOR
 
OPERATIONS
 
TO
 
BE
CONDUCTED UNDER THIS AGREEMENT.
 
 
DURING THE
 
DURATION
 
OF THIS
 
AGREEMENT,
 
__________, IS
 
CONSIDERED
RESPONSIBLE
 
FOR
 
OPERATIONAL
 
CONTROL
 
OF
 
THE
 
AIRCRAFT
 
LISTED
 
ON
EXHIBIT B ATTACHED
 
HERETO UNDER THIS AGREEMENT.
 
AN EXPLANATION
 
OF FACTORS BEARING ON OPERATIONAL
 
CONTROL AND
PERTINENT
 
FEDERAL
 
AVIATION
 
REGULATIONS
 
CAN
 
BE
 
OBTAINED
 
FROM
 
THE
RESPONSIBLE FAA FLIGHT STANDARDS
 
DISTRICT OFFICE.
 
THE
 
“INSTRUCTIONS
 
FOR
 
COMPLIANCE
 
WITH
 
TRUTH
 
IN
 
LEASING
REQUIREMENTS” ATTACHED
 
HERETO IN
 
EXHIBIT A ARE
 
INCORPORATED
 
HEREIN
BY REFERENCE.
 
THE
 
UNDERSIGNED,
 
AS
 
A
 
DULY
 
AUTHORIZED
 
OFFICER
 
OF
 
__________,
CERTIFIES
 
THAT
 
IT
 
IS
 
RESPONSIBLE
 
FOR
 
OPERATIONAL
 
CONTROL
 
OF
 
THE
AIRCRAFT LISTED
 
ON EXHIBIT
 
B ATTACHED
 
HERETO AND THAT IT UNDERSTANDS
ITS RESPONSIBILITIES
 
FOR COMPLIANCE
 
WITH APPLICABLE
 
FEDERAL AVIATION
REGULATIONS.
 
 
[SIGNATURE
 
BLOCK IS ON THE FOLLOWING PAGE]
Exhibit 10.2
 
 
IN
 
WITNESS
 
WHEREOF
,
 
the
 
parties
 
have
 
executed
 
this
 
Agreement,
 
intending
 
to
 
be
legally bound.
 
 
(LESSOR)
 
 
By
:
____________________________
 
 
 
Name:
 
__________________________
 
 
Title:
 
____________________________
 
Date: _________________
 
 
 
Address:
 
 
 
Phone: _________________
Facsimile: ______________
Email: _________________
 
 
(LESSEE)
 
 
______________________________
 
 
 
 
Date: _________________
 
 
 
Address:
 
 
 
 
 
 
 
 
Exhibit 10.2
 
EXHIBIT A
 
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 or fax 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.