Exhibit 10.2
INTERCHANGE
AGREEMENT
THIS INTERCHANGE
AGREEMENT (this “Agreement”),
made and entered into by Joust Capital, LLC (“Joust
One”), a Maryland limited liability company whose address
is1061 Mt. Airy Road, Davidsonville, Maryland 21035, and Danaher
Corporation (“Danaher”), a Delaware corporation whose
address is 2099 Pennsylvania Avenue, N.W., 12
th
Floor,
Washington, D.C. 20006, on and as of the 15
th
day of
February, 2007.
WITNESSETH:
WHEREAS, Joust One owns and operates an aircraft more
particularly described in Schedule A hereto (such aircraft
together with the engines described in Schedule A , is
referred to herein as the “Joust One
Aircraft”);
WHEREAS, Danaher leases and operates an aircraft more
particularly described in Schedule B hereto (such aircraft
together with the engines described in Schedule B , is
referred to herein as the “Danaher Aircraft” (the Joust
One Aircraft and the Danaher Aircraft are sometimes referred to as
the “Aircraft” or individually, an
“Aircraft”); and
WHEREAS, Joust One desires to lease the Joust One
Aircraft to Danaher, and Danaher desires to lease the Danaher
Aircraft to Joust One, in each case in an interchange agreement
pursuant to Section 91.501(c)(2) of the Federal Aviation
Regulations (“FAR”).
NOW, THEREFORE,
the parties hereto agree as
follows:
1. Term. The term of this Agreement (“Term”)
shall commence on the date hereof, and shall continue for a period
of five (5) years, unless either party terminates this
Agreement pursuant to Sections 9 or 12 hereof.
2. Use of
Aircraft.
A. Lease of Aircraft.
Each party agrees on the terms and
conditions of this Agreement to provide the use of its Aircraft for
the convenience of the other party, and to operate interchange
flights subject to the requirements of FAR
Section 91.501(b)(6). Such use will be at the convenience of
the party which operates the Aircraft (the operator of the Aircraft
is hereinafter referred to as the “Operator” and the
party using the Aircraft pursuant to this Agreement is hereinafter
referred to as the “User”), upon request by one to the
other in accordance with the terms and conditions of this
Agreement. Pursuant to this Agreement, which shall constitute an
interchange agreement as that term is
defined in FAR Section 91.501(c)(2), Joust
One agrees to make available the Joust One Aircraft for lease on a
non-exclusive, equal time, basis to Danaher, and Danaher agrees to
make available the Danaher Aircraft for lease on a non-exclusive,
equal time, basis to Joust One, in each case subject to the terms
and conditions of this Agreement.
B. Operational
Control. Regardless of
who may be using an Aircraft under this Agreement, Joust One shall
at all times have operational control of the Joust One Aircraft and
responsibility for compliance with applicable FAR and Danaher shall
at all times have operational control of the Danaher Aircraft and
responsibility for compliance with applicable FAR.
C. Purpose of Flight.
The User agrees that it will use the
Operator’s Aircraft only for purposes expressly permitted by
Part 91 of the Federal Aviation Administration’s
(“FAA”) regulations.
D. Scheduling
Flights.
i. Schedule Process.
In order to schedule a flight on the
Operator’s Aircraft, the User shall contact the
Operator’s aviation manager and request use of the
Operator’s Aircraft for a particular date and time and
include information with regard to the destination of the planned
flight. The Operator’s aviation manager shall determine
whether the Aircraft is available for lease at that time and seek
approval for the flight from the Operator. If the Aircraft is
available, the Operator’s aviation manager shall handle all
details arising out of the User’s scheduling of the Aircraft,
such as filing flight plans and arranging for in flight catering.
Determination of the availability of the Operator’s Aircraft
for lease to the User shall be left to the sole discretion of the
Operator. The Operator shall have the right to cancel a proposed
lease of the Aircraft by telephonic or other notice to the User at
any time prior to the departure of the Aircraft at the inception of
the lease. The parties acknowledge that they may each use the same
aviation manager for purpose of this
Section 2(D)(i).
ii. Equal Time.
The parties intend to lease their
Aircraft to one another on an equal time basis.
a. Each and every lease under this
Agreement must be approved by the Operator prior to scheduling such
flight. Approval shall be at the sole discretion of the Operator.
Neither party shall be obligated to make its Aircraft available to
the other party for any flight under this Agreement.
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b. For all purposes of this
Agreement, a lease of an Aircraft under this Agreement shall be
based on actual logged flight time, and shall include any
positioning flight required by the User.
3. Operational
Expenses. No charge,
assessment or fee is to be made by either Party for its respective
Aircraft use. Quarterly, the parties shall direct the aircraft
manager of each Aircraft to calculate and provide a written report
to each party showing the number of hours operated under this
Agreement (i) during the most recently ended quarter,
(ii) for the then-current calendar year-to-date and
(iii) during the Term of this Agreement. If in any calendar
year one party has leased the Aircraft for a greater number of
hours that the other party, those hours will be carried forward
into the next calendar year of this Agreement for purposes of this
reconciliation.
4. Flight Crew.
A. Provision of Flight
Crew. As is consistent
with the FAR, the Operator shall provide flight crew for all
flights operated under this Agreement. Such flight crew shall be
duly qualified and licensed and shall exercise all of its duties
and responsibilities in regard to the safety of each flight
conducted under this Agreement in accordance with applicable
FAR.
B. Pilot Duties.
Pilots shall exercise pilots’
duties and responsibilities in regard to the safety of each flight
conducted pursuant to this Agreement in accordance with the
applicable FAR. When safety may be compromised, in the view of the
pilots of either Aircraft used pursuant to this Agreement, the
pilots may terminate a flight, refuse to commence a flight or take
other action necessitated by safety considerations. Nothing in this
Agreement shall be construed to abridge the authority and
responsibility of the pilot-in-command as provided under pertinent
FAR Part 91 regulations.
5. Recordkeeping.
The Operator shall keep accurate,
complete and current, records pertaining to flight operations in
compliance with FAA requirements, as well as all records kept by
reasonable and prudent businesses in the normal course of operating
a flight department. These records shall include flights conducted,
pilot training and licensing, and any Aircraft accidents or
incidents. Such records shall be available to both parties during
business hours.
6. Maintenance.
A. Maintenance
Standards. Each Operator
shall be solely responsible for securing maintenance, preventive
maintenance and required or
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otherwise necessary inspections on its
respective Aircraft. Each Aircraft will be maintained and inspected
as required by FAR Part 91.
B. Cost of
Maintenance. Each
Operator shall bear the cost of all maintenance performed on its
Aircraft, except such additional maintenance or repair which arises
out of the negligence or misconduct of the leasing User, or any
other person or persons for which the User is responsible. Any
maintenance or repair required because of such negligence or
misconduct will be fully charged to the User to the extent such
cost is not covered by insurance or a third party.
C. Maintenance
Records. Each Operator
shall keep accurate, complete and current, maintenance records on
its Aircraft in compliance with FAA requirements. These records
shall include scheduled maintenance, repairs, modifications,
scheduled inspections, functional tests and overhauls performed.
Such records shall be available to both parties during normal
business hours.
7. Damage Reports.
The Operator shall immediately
notify the User of any accident or incident connected with the use
of either of the Aircraft hereunder, and shall include in
such
