AIRCRAFT TIME SHARING AGREEMENT

Exhibit 10.22

 

QWEST BUSINESS RESOURCES, INC.

AIRCRAFT TIME SHARING AGREEMENT

 

This Aircraft Time Sharing Agreement (“Agreement”) by and between Qwest Business Resources, Inc. (“Lessor”), a Colorado corporation whose address is 1801 California Street, Denver, Colorado 80202 and Richard C. Notebaert (“Lessee”), whose address is 106 South University Boulevard, Number 12, Denver, Colorado 80209 (collectively the “Parties”), is effective February 14, 2006 and shall terminate on December 31, 2008, unless terminated sooner by either party pursuant to Article 1 below.

 

WHEREAS, Lessor is legal owner of an aircraft (“Aircraft”), equipped with engines and components as described in the Aircraft Subject to the Time Sharing Agreement attached hereto and made a part hereof, as Exhibit A;

 

WHEREAS, Lessor has the right of possession of an aircraft (“Aircraft”), equipped with engines and components as described in the Leased Aircraft Subject to the Time Sharing Agreement attached hereto and made a part hereof, as Exhibit B;

 

WHEREAS, Lessor has contracted for a fully qualified flight crew to operate the Aircraft; and

 

WHEREAS, Lessor desires to provide to Lessee, and Lessee desires to have the use of 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”);

 

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WHEREAS, this Agreement sets forth the understanding of the Parties as to the terms under which Lessor will provide Lessee with the use, on a periodic basis, of the Aircraft as described in Exhibits A and B hereto, currently owned or operated by Lessor.

 

WHEREAS, the use of the Aircraft will at all times be pursuant to and in full compliance with the requirements of Federal Aviation Regulations (“FAR”) 91.501(b)(6), 91.501(c)(1), and 91.501(d);

 

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the Parties agree as follows:

 

1. Termination.

 

Either party may terminate this Agreement for any reason upon written notice to the other, such termination to become effective ten (10) days from the date of the notice; provided that this Agreement may be terminated on such shorter notice as may be required to comply with applicable laws, regulations, the requirements of any financial institution with a security or other interest in the Aircraft, insurance requirements or in the event the insurance required hereunder is not in full force and effect.

 

2. Use of Aircraft.

 

(a) Lessee may use the Aircraft from time to time, with the permission and approval of Lessor’s Flight Operations Department, for any and all purposes allowed by FAR 91.501(b)(6) at such times as the Lessor does not require the use

 

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of the Aircraft for the business purposes of Lessor or an affiliate. Lessee’s use shall include the use of the Aircraft by his Spouse or related family member (including children or grandchildren) (“Related Family”) if they accompany him on the flight.

 

(b) Lessee represents, warrants and covenants to Lessor that:

 

1.

Lessee will use each Aircraft for and on his own account only and will not use any Aircraft for the purposes of providing transportation of passengers or cargo in air commerce for compensation or hire;

 

2.

Lessee shall refrain from incurring any mechanics lien or other lien in connection with inspection, preventative maintenance, maintenance or storage of the Aircraft, whether permissible or impermissible under this Agreement, and Lessee shall not attempt 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;

 

3.

During the term of this Agreement, Lessee 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 time-sharing Lessee;

 

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(c) Lessee shall provide Lessor’s Flight Operations Department with notice of his desire to use the Aircraft and proposed flight schedules as far in advance of any given flight as possible, and in any case, at least forty-eight (48) 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:

 

1.

proposed departure point;

 

2.

destination;

 

3.

date and time of flight;

 

4.

the number and identity of anticipated passengers and relationship to the Lessee;

 

5.

the nature and extent of luggage and/or cargo to be carried;

 

6.

the date and time of return flight, if any; and

 

7.

any other information concerning the proposed flight that may be pertinent or required by Lessor or Lessor’s flight crew.

 

(c) Lessor shall notify Lessee as to whether or not the requested use of the Aircraft can be accommodated and, if not, the Parties shall discuss alternatives.

 

(d) Lessor’s prior planned utilization of the Aircraft will take precedence over Lessee’s use. Additionally, any maintenance and inspection of the Aircraft takes precedence over scheduling of the Aircraft unless such maintenance or inspection can be safely deferred in accordance with applicable laws and regulations and within the sound discretion of the Pilot-In-Command.

 

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(e) Lessor shall have sole and exclusive authority over the scheduling of the Aircraft, including which Aircraft is used for any particular flight.

 

(f) Lessor shall not be liable to Lessee or any other person for loss, injury, or damage occasioned by the delay or failure to furnish the Aircraft and crew pursuant to this Agreement for any reason.

 

3. Time-Sharing Arrangement.

 

It is intended that this Agreement will meet the requirements of a “Time Sharing Agreement” as that term is defined in FAR Part 91.501(c)(1) whereby Lessor will lease its Aircraft and flight crew to Lessee.

 

4. Cost of Use of Aircraft.

 

(a) In exchange for use of the Aircraft, Lessee shall pay the direct operating costs of the Aircraft permitted pursuant to FAR 91.501 for any flight conducted under this Agreement or a lesser amount as mutually agreed to by the Parties. Pursuant to FAR 91.501(d), those direct operating costs shall be limited to the following expenses for each use of the Aircraft:

 

(1)

Twice the cost of fuel, oil, lubricants and other additives;

 

(2)

Travel expenses of the crew, including food, lodging, and ground transportation.

 

(3)

Hangar and tie-down costs when the Aircraft is required by the Lessee to be away from the Aircraft’s base of operation.

 

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(4)

Insurance obtained for the specific flight.

 

(5)

Landing fees, airport taxes, and similar assessments.

 

(6)

Customs, foreign permit, and similar fees directly related to the flight.

 

(7)

In flight food and beverages.

 

(8)

Passenger ground transportation.

 

(9)

Flight planning and weather contract services.

 

(b)	Lessor will invoice, and Lessee will pay, for all appropriate charges.

 

(c)	In addition to the rental rate referenced in Section 4(a) above, Lessee shall also be assessed the Federal Excise Taxes as imposed under Section 4261 of the Internal Revenue Code, and any segment and landing fees associated with such flight(s).

 

5. Invoicing and Payment.

 

All payments to be made to Lessor by Lessee hereunder shall be paid in the manner set forth in this Paragraph 5. Lessor will pay to suppliers, employees, contractors and government entities all expenses related to the operations of the Aircraft hereunder in the ordinary course. As to each flight operated hereunder, Lessor shall provide to Lessee an invoice for the charges specified in Paragraph 4 of this Agreement (plus domestic or international air transportation Excise Taxes, as applicable, imposed by the Internal Revenue Code and collected by Lessor), such invoice to be issued within thirty (30) days after the completion of each such flight. Lessee shall pay Lessor the full amount of such invoice upon receipt of the invoice. In the event Lessor has not received a supplier invoice for reimbursable

 

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