EXHIBIT 10.3
AIRCRAFT
TIME SHARING AGREEMENT
This AIRCRAFT TIME SHARING AGREEMENT (the "Agreement") is made and entered
into as of January 1, 2005, by and between Interface Operations
LLC, a Delaware limited liability company ("Provider"), and Las
Vegas Sands Corp., a Nevada corporation ("Recipient").
In consideration of the mutual
promises, agreements, covenants, warranties, representations and
provisions contained herein, the parties agree as
follows:
1.
Time Sharing of the Aircraft . Subject to the terms and
conditions of this Agreement, Provider shall provide Recipient with
transportation services on a non-exclusive basis using Provider's
aircraft identified as a Gulfstream G-III59A, serial number 351,
U.S. registration number N623MS (the "Aircraft"). This Agreement is
intended to be a time sharing agreement within the meaning of 14
C.F.R. Section 91.501(c)(1).
2.
Term . The term of this Agreement (the "Term") shall
commence on the date of this Agreement and end on December 31, 2006
(the "Expiration Date"). The Expiration Date (as it may be
extended) shall be automatically extended by one year if neither
party has given notice of non-renewal to the other at least thirty
(30) days before the then Expiration Date. Notwithstanding anything
to the contrary in this section 2, either party may terminate this
Agreement on thirty (30) days' notice, provided that such party is
not then in default, and this Agreement shall terminate
automatically upon termination of the Lease (as defined in section
6(f).
3.
Delivery to Recipient . Upon the request of Recipient,
subject to the availability of the Aircraft as determined by
Provider, Provider shall make the Aircraft available to Recipient
at such location as Recipient may reasonably request. Recipient
acknowledges that Provider currently bases the Aircraft at McCarran
International Airport, Las Vegas, Nevada (the "Base").
(a) Recipient
shall pay to Provider, for Recipient's use of the Aircraft during
the Term the following amounts (referred to collectively as the
“Fee”) within 30 days of receipt of an invoice from
Provider or its representative with respect to such use:
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(i)
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twice the cost of the fuel, oil and other
additives consumed;
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(ii) all
fees, including fees for landing, parking, hangar, tie-down,
handling, customs, use of airways and permission for
overflight;
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(iii)
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all expenses for catering and in-flight
entertainment materials;
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(iv)
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all expenses for flight planning and weather
contract services;
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(v) all
travel expenses for pilots, flight attendants and other flight
support personnel, including food, lodging and ground
transportation; and
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(vi)
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all communications charges, including in-flight
telephone.
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(b) Recipient
shall be responsible for arranging and paying for all passenger
ground transportation and accommodation in connection with
Recipient's use of the Aircraft.
(c) For
the sake of clarification, flights to ferry the Aircraft to the
delivery location specified by Recipient pursuant to section 3, and
flights to return the Aircraft to the Base or such other location
as the parties agree pursuant to section 5, shall be deemed to be
use of the Aircraft by Recipient.
5.
Return to Base . On the earlier of the Expiration Date or
the termination of this Agreement pursuant to section 16(a)(i) and,
unless Provider agrees to the contrary, upon the conclusion of each
flight of the Aircraft by Recipient under this Agreement, the
Aircraft shall be returned to the Base or such other location as
Provider and Recipient may agree.
(a) Recipient
shall use the Aircraft only for the transportation of its
directors, officers, employees and guests and shall not obtain
compensation for such transportation from any person.
(b) Recipient
shall not violate, and shall not permit any of its employees,
agents or guests to violate, any applicable law, regulation or rule
of the United States, or any state, territory or local authority
thereof, or any foreign government or subdivision thereof, and
shall not bring or cause to be brought or carried on board the
Aircraft, or permit any employee, agent or guest to bring or cause
to be brought or carried on board the Aircraft, any contraband or
unlawful articles or substances, or anything that is contraband or
is an unlawful article of substance in any jurisdiction into or
over which the Aircraft is to operate on behalf of
Recipient.
(c) Recipient
shall, and shall cause its employees, agents and guests to, comply
with all lawful instructions and procedures of Provider and its
agents and employees regarding the Aircraft, its operation or
flight safety.
(d) Recipient
acknowledges that its discretion in determining the origin and
destination of flights under this Agreement shall be subject to the
following limitations: (i) such origin and destination, and the
routes to reach such origin and destination, are not within or over
(A) an area of hostilities, (B) an area excluded from coverage
under the insurance policies maintained by Provider with respect to
the Aircraft or (C) a country or jurisdiction for which exports or
transactions are subject to specific restrictions under any United
States export or other law or United Nations Security Council
Directive, including without limitation, the Trading With the Enemy
Act, 50 U.S.C. App. Section 1 et seq., the International Emergency
Economic Powers Act, 50 U.S.C. Sections 1701 et seq. and the Export
Administration Act, 50 U.S.C. App. Sections 2401 et seq.; (ii) the
flights proposed by Recipient shall not cause (A) the Aircraft or
any part thereof (1) to be used predominately outside of the
United States within the meaning of the Section 168(g)(1)(A)
of the Internal Revenue Code of 1986, as amended (the "Code"), and
(2) to fail to be operated to and from
the United States within the meaning
of Section 168(g)(4)(A) of the Code; or (B) any item of income,
gain, deduction, loss or credit with respect to the transactions
contemplated by this Agreement to be treated as derived from, or
allocable to, sources without the United States within the meaning
of Section 862 of the Code; (iii) the proposed flights do not
require the flight crew to exceed any flight or duty time
limitations that Provider imposes upon its flight crews; and (iv)
in the judgment of Provider, the safety of flight is not
jeopardized.
(e) Recipient
acknowledges that, if, in the view of Provider (including, its
pilot-in-command), flight safety may be jeopardized, Provider may
terminate a flight or refuse to commence it without liability for
loss, injury or damage occasioned by such termination or refusal.
Recipient further acknowledges that, in accordance with applicable
Federal Aviation Regulations (“FAR”), the qualified
flight crew provided by Provider will exercise all of its duties
and responsibilities in regard to the safety of each flight
conducted hereunder and Recipient 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 judgement 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 Recipient or any other person. Recipient acknowledges and
agrees that Provider shall not be liable under any circumstances
for delay or failure to furnish the Aircraft and crew pursuant to
this Agreement or for any loss, damage, cost or expense arising
from or related to, directly or indirectly, any delay, cancellation
or failure to furnish any transportation pursuant to this
Agreement, including, but not limited to, when caused by government
regulation, law or authority, mechanical difficulty or breakdown,
war, civil commotion, strikes or other labor disputes, weather
conditions, acts of God, public enemies or any other cause beyond
Provider’s control.
(f) Recipient
acknowledges that (i) the Aircraft is owned by Yona Aviation Corp.,
("Owner"), and is leased to Provider pursuant to that certain
Aircraft Lease Agreement by and between Owner and Provider (the
"Lease") and (ii) the rights of Recipient in and to the Aircraft
are subject and subordinate to all terms of the Lease and all
rights of Owner in and to the Aircraft under the Lease, including
without limitation the right of Owner to inspect and take
possession of the Aircraft from time to time in accordance with the
Lease and applicable law.
Accordingly, Recipient (i) waives
any right that it might have to any notice of Owner's intention to
inspect, take possession or exercise any other right or remedy in
respect of the Aircraft or under the Lease, (ii) waives, as against
Owner, all rights to any set-off, defense, counterclaim or
cross-claim that it may hold against Provider and (iii)
acknowledges that, upon a default of Provider under the Lease,
Recipient shall have no further rights in and to the
Aircraft.
Recipient acknowledges that Owner
has not made any warranty or representation, either express or
implied, as to the design, compliance with specifications,
operation, or condition of, or as to the quality of the material,
aircraft, or workmanship in, the Aircraft or any component thereof,
and Owner makes no warranty of merchantability or fitness of the
Aircraft or any component thereof for any particular purpose or as
to title to the Aircraft or
component thereof, or any other
representation or warranty, express or implied, with respect to the
Aircraft or component thereof.
7.
Pilots . For all flights of the Aircraft by Recipient
pursuant to this Agreement, Provider shall cause the Aircraft to be
operated by pilots who are duly qualified under the Federal
Aviation Regulations, including without limitation, with respect to
currency and type-rating, and who meet all other requirements
established and specified by the insurance policies required
hereunder.
8.
Operation and Maintenance Responsibilities of Provider .
Provider shall be in operational control of the Aircraft at all
times during the Term and shall operate the Aircraft under FAR Part
91. Provider shall be solely responsible for the operation and
maintenance of the Aircraft.
9.
Liens . Recipient shall not directly or indirectly create or
incur any liens on or with respect to (i) the Aircraft or any
part thereof, (ii) Owner's title thereto, (iii) any
interest of Provider or Owner therein, (and Recipient will
promptly, at its own expense, take such action as may be necessary
to discharge any such lien), except (a) the respective rights of
Provider and Recipient as herein provided and (b) liens created by
or caused to be created by Owner or Provider.
(a) Except
for any taxes on, or measured by, the net income of Provider
imposed by the United States government or any state or local
government or taxing authority in the United States, which shall be
the sole responsibility of Provider, Recipient shall pay to and
indemnify Provider and its employees and agents (collectively, the
"Indemnitees") for, and hold each Indemnitee harmless from and
against, on an after-tax basis, all other income, personal
property, ad valorem, franchise, gross receipts, rental, sales,
use, excise, value-added, leasing, leasing use, stamp, landing,
airport use, or other taxes, levies, imposts, duties, charges, fees
or withholdings of any nature, together with any penalties, fines,
or interest thereon ("Taxe