Exhibit 10.30
AMENDED AND RESTATED AIRCRAFT
TIME SHARING AGREEMENT
This Aircraft Time Sharing Agreement
(“Agreement”) is entered into on April
, 2005, effective, however, as of
December 8, 2004 (the “Effective Date”) by and between
LIMITED SERVICE CORPORATION, a Delaware corporation
(“Operator”), and each of the individuals whose name
appears on Schedule 1 hereto, as the same may be amended from time
to time (each, a “Time Share Lessee”).
Recitals: This Agreement is made under the following
circumstances.
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A.
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Operator
controls and operates in the legal capacity of lessee each of the
Aircraft (as defined and described below).
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B.
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Operator
employs (or contracts for the services of) a fully qualified flight
crew to operate each Aircraft.
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C.
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Each Time Share
Lessee desires from time to time to sublease the Aircraft, with a
flight crew, on a non-exclusive basis, from Operator on a time
sharing basis as defined in Section 91.501(c)(1) of the
FAR.
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D.
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Operator is
willing to sublease the Aircraft, with flight crew, on a
non-exclusive basis, to Time Share Lessees on a time sharing
basis.
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E.
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During the Term
of this Agreement, the Aircraft will be subject to use by Operator
and/or other one or more subleases to third-parties.
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F.
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Operator and
various of the Time Share Lessees entered into an Aircraft Time
Share Agreement as of December 8, 2004, which was subsequently
amended by Amendment No. 2, also dated as of December 8, 2004, to
adjust the amount of the flight charges under Section 4.1, and
which was amended by Amendments No.1 and No. 3, dated as of January
13, 2005 and February 3, 2005, respectively, adding certain other
Time Share Lessees.
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G.
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Certain other
persons have become Time Share Lessees by virtue of one or more
Applications To Be Bound By Time Sharing Agreement executed by such
persons and accepted by the Operator.
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H.
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For
convenience, Operator and the Time Share Lessees desire to restate
the Agreement, as amended, in its entirety.
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I.
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By virtue of
executing the original Agreement, the Amendment or the Application
To Be Bound, as the case may be, each of the Time Share Lessees has
authorized Operator to execute and deliver this Agreement, and any
necessary future amendments, on their behalf, as more fully
provided below.
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NOW, THEREFORE, each Time Share Lessee and
Operator, in consideration of the promises of the other set forth
herein, intending to be legally bound, hereby agree as
follows.
Section 1. Definitions.
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1.1.
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Specific
Terms. The following
defined terms shall have the following meanings when used in this
Agreement. The meanings assigned by this Agreement shall apply to
the plural, singular, possessive or any other form of the term.
Words of the masculine, feminine or neuter gender include all other
genders.
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“Agreement” is defined in the preamble.
“Aircraft”
means each of the Airframes, the
Engines, and the Aircraft Documents. Such Engines shall be deemed
part of the “Aircraft” whether or not from time to time
attached to the Airframe or removed from the Aircraft.
“Aircraft
Documents” means,
as to any Aircraft, all flight records, maintenance records,
historical records, modification records, overhaul records,
manuals, logbooks, authorizations, drawings and data relating to
the Airframe, any Engine, or any Part, that are required by
Applicable Law to be created or maintained with respect to the
maintenance and/or operation of the Aircraft.
“Airframe”
means each of the Airframes listed
in Schedule 2 attached hereto and made a part hereof, as the same
may be amended from time to time as set forth below, together with
any and all Parts (including, but not limited to, landing gear and
auxiliary power units but excluding Engines or engines) so long as
such Parts shall be either incorporated or installed in or attached
to the Airframe.
“Applicable
Law” means, without
limitation, all applicable laws, treaties, international
agreements, decisions and orders of any court, arbitration or
governmental agency or authority and rules, regulations, orders,
directives, licenses and permits of any governmental body,
instrumentality, agency or authority, including, without
limitation, the FAR and 49 U.S.C. § 41101, et seq ., as
amended.
“Business
Day” means Monday
through Friday, exclusive of legal holidays under the laws of the
United States, or the State of Ohio.
“Effective
Date” means the
date so specified in the preamble of this Agreement.
“ Engines” means,
as to each Airframe, the engines identified in Schedule 2 (or any
replacement or loaner engines), as the same may be amended from
time to time as set forth below, together with any and all Parts so
long as the same shall be either incorporated or installed in or
attached to such Engine.
“FAA”
means the Federal Aviation
Administration or any successor agency.
“FAR”
means collectively the Aeronautics
Regulations of the Federal Aviation Administration and the
Department of Transportation, as codified at Title 14, Parts 1 to
399 of the United States Code of Federal Regulations.
“Flight
Charges” means the
amount calculated under Section 4.1 below.
“Flight
Hour” means each
flight hour, calculated in tenths of an hour, of use of the
Aircraft by a Time Share Lessee, as recorded on the Aircraft hour
meter.
“Headlease” means, as to any Aircraft, the Aircraft Lease
Agreement between the Owner and Operator, as the same may be
amended from time to time, the terms and conditions of which are
incorporated into this Agreement by reference.
“Operating
Base” means Port
Columbus Airport, Columbus, Ohio.
“Operational
Control” has the
same meaning given the term in Section 1.1 of the FAR.
“Operator”
is defined in the
preamble.
“Owner”
means, as to each Aircraft, the
registered owner of the Aircraft as shown by the records of the
FAA.
“Parts”
means, as to any Aircraft, all
appliances, components, parts, instruments, appurtenances,
accessories, furnishings or other equipment of whatever nature
(other than complete Engines or engines) which may from time to
time be incorporated or installed in or attached to the Airframe or
any Engine and includes replacement parts.
“Pilot in
Command” has the
same meaning given the term in Section 1.1 of the FAR.
“SIFL
Rate” means the
Standard Industry Fare Level rate as calculated in accordance with
the regulations of the Internal Revenue Service from time to time
in effect.
“Taxes”
means all sales taxes, use taxes,
retailer taxes, duties, fees, excise taxes (including, without
limitation, federal transportation excise taxes), or other taxes of
any kind which may be assessed or levied by any Taxing Jurisdiction
as a result of the sublease of the Aircraft to a Time Share Lessee,
or the use of the Aircraft by a Time Share Lessee, or the provision
of a taxable transportation service to a Time Share Lessee using
the Aircraft.
“Taxing
Jurisdictions” means any federal, state, county, local,
airport, district, foreign, or other governmental authority that
imposes Taxes.
“Term”
means the term of this Agreement set
forth in Section 3.
“Time Share
Lessee” is defined
in the preamble. Upon execution of any supplements to Schedule 1,
each person named in and signing the supplement shall become an
additional Time Sharing Lessee, effective as of the date shown
therein as to that person.
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1.2.
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Other
Terms. Unless otherwise
specified, the following terms, whether or not capitalized, will
have the following meanings as used in this Agreement.
“Hereof”, “herein”, “hereunder”
and similar terms refer to this Agreement as a whole, and are not
limited to the section or subdivision of this Agreement in which
the term appears. “Includes, “including” and
similar terms mean without limitation. “Person”
includes any natural person, corporation, general or limited
partnership, limited liability company, other incorporated or
unincorporated association, trust, governmental body or other
entity.
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Section 2. Agreement to Sublease.
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2.1.
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Agreement to
Sublease. Operator agrees
to sublease the Aircraft to Time Share Lessees on an “as
needed and as available” basis, and to provide a fully
qualified flight crew for all flights of each Time Share Lessee, in
accordance with the terms and conditions of this
Agreement.
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2.2.
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Independent
Agreements. The Time
Share Lessees are listed in a single document for the sole purpose
of convenience of the Operator. This Agreement shall be deemed a
separate Time Sharing Agreement as between Operator and each Time
Share Lessee. Without limiting the preceding sentence:
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2.2.1.
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Operator may
from time to time agree to add additional persons as a Time Share
Lessee, without notice to the existing Time Share Lessees. Each
such agreement will be evidenced by a supplement to Schedule 1,
signed by Operator and the new Time Share Lessee(s), setting forth
the new Time Share Lessee’s notice address, the date as to
which this Agreement becomes effective as to the new Time Share
Lessee, and his or her commitment to be bound by this
Agreement.
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2.2.2.
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The rights and
obligations of each Time Share Lessee are independent of one
another. Under no circumstances will any Time Share Lessee be
deemed liable for any monetary or non-monetary obligations of any
other Time Share Lessee hereunder, whether jointly, severally, or
by way of suretyship or guaranty.
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2.2.3.
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Termination of
this Agreement as to any one or more of the Time Share Lessees
shall not be deemed to be a termination as to any other Time Share
Lessee.
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2.3.
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Intent and
Interpretation. The
parties hereto intend that this Agreement shall constitute, and
this Agreement shall be interpreted as, a T ime Sharing
Agreement as defined in Section 91.501(c)(1) of the
FAR.
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2.4.
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Non-Exclusivity. Each Time Share Lessee acknowledges that the
Aircraft is subleased to Time Share Lessees hereunder on a
non-exclusive basis, and that the Aircraft will also be subject use
by Operator and Operator’s parent, subsidiaries, and
affiliates, and may also be subject to non-exclusive sublease to
others during the Term.
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Section 3. Term. As to each Time Share Lessee, the term of this
Agreement begins on the Effective Date, and ends on the December 31
next following; provided, however, that as to any person added as a
Time Share Lessee after the Effective Date pursuant to Section
2.2.1 above, the Term shall begin on the date specified in the
supplement to Schedule 1 adding the person as a Time Share Lessee.
At the end of the initial Term or any subsequent Term, this
Agreement shall automatically be renewed for an additional one (1)
year Term. The foregoing notwithstanding:
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A)
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This Agreement
shall end as to any Time Share Lessee at such time as that Time
Share Lessee is neither an officer, director or employee of
Operator nor of any parent corporation, subsidiary or affiliate of
Operator.
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B)
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Each Time Share
Lessee shall have the right to terminate this Agreement with or
without cause on thirty (30) days written notice to the Operator,
and the Operator shall have right to terminate this Agreement as to
any one or more Time Share Lessees with or without cause on thirty
(30) days written notice to the Time Share Lessee or Lessees in
question, without need in either case to notify any Time Share
Lessee as to whom the Agreement is not being terminated.
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Section 4. Payments.
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4.1.
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Flight
Charges. Each Time Share
Lessee shall pay Operator for each flight conducted for that Time
Share Lessee under this Agreement an amount equal to that Time
Share Lessee’s pro rata share of the lesser of the amount
calculated under Section 4.1.1 and the amount calculated under
Section 4.1.2.
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4.1.1.
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An amount equal
to the greater of (a) the SIFL Rate then in effect, or
(b) the product of the number of Flight Hours of the
duration of the flight, rounded to the nearest 1/10th of a Flight
Hour, multiplied by the Total Direct Costs Per Flight Hour
for the make and model of Aircraft as published by Conklin &
de Decker Aviation Information , as updated from time to time;
and
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4.1.2.
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An amount equal
to the maximum amount of expense reimbursement permitted in
accordance with Section 91.501(d) of the FAR, which expenses
include and are limited to:
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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 100% of the expenses listed in Section
4.1.2(a).
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4.2.
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Pro Rata
Share. If two or more
Time Share Lessees lease the Aircraft for the same flight segment,
the Flight Charges for that segment shall be allocated between or
among them on a pro rata basis.
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Section 5. Invoices and Payment.
Operator will initially pay all
expenses related to the operation of the Aircraft when and as such
expenses are incurred, provided that within thirty (30) days after
the last day of any fiscal quarter (according to Operator’s
fiscal year) during which any flight for the account of a Time
Share Lessee has been conducted, Operator shall provide an invoice
to that Time Share Lessee for an amount determined in accordance
with Section 4 above. Time Share Lessee shall remit the full amount
of any such invoice, together with any applicable Taxes under
Section 6, to Operator promptly within thirty (30) days of the
invoice date.
Section 6. Taxes. None of the payments to be made by any Time
Share Lessee under Sections 4 and 5 of this Agreement includes, and
each Time Share Lessee shall be responsible for, shall indemnify
and hold harmless Operator and Owner against, any Taxes which may
be assessed or levied by any Taxing Jurisdiction as a result of the
sublease of the Aircraft to that Time Share Lessee, or the use of
the Aircraft by that Time Share Lessee, or the provision of a
taxable transportation service to that Time Share Lessee using the
Aircraft. Without limiting the generality of the foregoing, Time
Share Lessees and Operator specifically acknowledge that all Time
Share Lessees’ flights will be subject to commercial air
transportation excise taxes pursuant to Section 4261 of the
Internal Revenue Code, regardless of whether any such flight is
considered “noncommercial” under the FAR. Time Share
Lessee shall remit to Operator all such Taxes together with each
payment made pursuant to Section 5.
Section 7. Scheduling Flights.
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7.1.
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Submitting
Flight Requests. Each
Time Share Lessee shall submit requests for fligh
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