Exhibit 10.5
AIRCRAFT TIME SHARING
AGREEMENT
This Aircraft Time Sharing Agreement
(“Agreement”) is made and entered into as of the 27th
day of October, 2008, by and between INTELLECTUAL VENTURES
MANAGEMENT, L.L.C. , a Washington limited liability company
(“IVM”), and DREAMWORKS ANIMATION SKG, INC. , a
Delaware corporation (“DWA”).
WHEREAS, IVM, a company engaged
primarily in the business of managing private equity investment
funds, is the lessee and operator of one Gulfstream Aerospace
Model G-V aircraft bearing Federal Aviation Administration
Registration No. N5000X and Manufacturer’s Serial
No. 611 (“the Aircraft”) and owned by Teratorn,
LLC (the “Aircraft Owner”); and
WHEREAS, DWA, from time to time,
desires use of the Aircraft for its own account solely for the
carriage of one or more DWA officials, employees and guests
traveling on DWA business; and
WHEREAS, IVM desires to make the
Aircraft available to DWA for the above operations on a time
sharing basis in accordance with § 91.501 of the Federal
Aviation Regulations, 14 CFR § 91.501.
NOW, THEREFORE, in consideration of
the mutual covenants herein set forth, the parties agree as
follows:
1. Provision of the Aircraft.
IVM agrees to provide the Aircraft to and operate the Aircraft for
DWA on a time sharing basis in accordance with the provisions of
§§ 91.501(b)(6), 91.501(c)(1) and 91.501(d) of the
Federal Aviation Regulations (FARs) for the period commencing upon
execution of this Agreement and terminating upon permanent
cessation of IVM’s operation of the Aircraft, unless earlier
terminated pursuant to Paragraph 15 below or by mutual agreement of
the parties.
2. Reimbursement of Expenses.
For each flight conducted under this Agreement, DWA shall pay to
IVM the amount invoiced to DWA by IVM for such flight, provided
that in no case shall such amount exceed the sum of the expenses
set forth in subparagraphs (a)-(j) below:
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(a)
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Fuel, oil,
lubricants, and other additives;
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(b)
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Travel expenses
of the crew, including food, lodging, and ground
transportation;
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(c)
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Hangar and
tie-down costs away from the Aircraft’s base of
operation;
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(d)
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Insurance
obtained for the specific flight;
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(e)
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Landing fees,
airport taxes, and similar assessments;
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(f)
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Customs,
foreign permit, and similar fees directly related to the
flight;
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(g)
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In-flight food
and beverages;
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(h)
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Passenger
ground transportation;
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(i)
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Flight planning
and weather contract services; and
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(j)
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An additional
charge equal to one hundred percent (100%) of the expenses
listed in subparagraph (a) above.
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3. Invoicing and Payment. All payments to
be made to IVM by DWA hereunder shall be paid in the manner set
forth in this Paragraph 3. IVM will pay to suppliers, employees,
contractors and governmental entities all expenses related to the
operation of the Aircraft hereunder in the ordinary course. As to
each flight operated hereunder, IVM shall provide to DWA an invoice
for the charges specified in Paragraph 2 of this Agreement (plus
air transportation excise taxes, as applicable, imposed by the
Internal Revenue Code), such invoice to be issued within thirty
(30) days after the completion of each such flight. DWA shall
pay IVM the full amount of such invoice within thirty
(30) days of the date of the invoice. In the event IVM has not
received supplier invoices for reimbursable charges relating to
such flight prior to such invoicing, IVM shall issue supplemental
invoice(s) for such charge(s) to DWA, and DWA shall pay such
charge(s) within thirty (30) days of the date of each
supplemental invoice.
4. Flight Requests. DWA (or
its official) will provide IVM with flight requests and proposed
flight schedules as far in advance as possible. Flight requests
shall be in a form, whether oral or written, mutually convenient to
and agreed upon by the parties. DWA shall provide at least the
following information for each proposed flight reasonably in
advance of the desired departure time as required by IVM or its
flight crew:
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(c)
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proposed date
and time of flight;
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(d)
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number and
identity of anticipated passengers;
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(e)
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nature and
extent of baggage and/or cargo to be carried;
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(f)
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proposed date
and time of return flight, if any; and
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(g)
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any other
information concerning the proposed flight that may be pertinent to
or required by IVM or its flight crew.
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5. Aircraft Scheduling. IVM
shall have final authority over all scheduling of the Aircraft,
including determination of whether the Aircraft can be made
available for a particular flight, provided however that IVM will
use reasonable efforts to accommodate DWA’s
requests.
6. Aircraft Maintenance. IVM
shall be solely responsible for securing all maintenance (including
scheduled and unscheduled maintenance, preventive maintenance, and
required or otherwise necessary inspections) of the Aircraft, and
shall take such requirements into account in scheduling the
Aircraft. Performance of maintenance or inspection shall not be
postponed for the purpose of scheduling the Aircraft to accommodate
DWA’s request unless such maintenance or inspection can
safely be conducted at a later time in compliance with applicable
laws, regulations and requirements, and such postponement is
consistent with the sound discretion of the
pilot-in-command.
7. Flight Crew. IVM shall
employ, pay for and provide a qualified flight crew for all flight
operations under this Agreement.
8. Operational Authority and
Control. IVM shall be responsible for all aspects of the
physical and technical operation of the Aircraft and the safe
performance of all flights, and shall retain full authority and
control including exclusive operational control and possession of
the Aircraft, at all times during
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flights operated under this Agreement. In
accordance with applicable FARs, the qualified flight crew provided
by IVM will exercise all required and/or appropriate duties and
responsibilities in regard to the safety of each flight conducted
hereunder. The pilot-in-command shall have absolute discretion in
all matters concerning preparation of the Aircraft for flight and
the flight itself, the load carried and its distribution, the
decision whether or not a flight shall be undertaken, the route to
be flown, the place where landings shall be made, and all other
matters relating to operation of the Aircraft. DWA specifically
agrees that the flight crew shall have final and complete
aut