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EXHIBIT 10.3
TIME SHARING
AGREEMENT
This Time Sharing Agreement ("Agreement") is effective as of January
30, 2006,
("Effective Date") by and between Oakley, Inc., a Washington
corporation with
its principal offices located at One Icon, Foothill Ranch, California 92610
("Oakley") and Y, LLC, a Washington limited liability company with a
mailing
address at PO Box 1389, Eastsound, Washington 98245 ("Y, LLC") (each
a "Party"
and collectively the "Parties").
A. Oakley and Y, LLC desire to enter into this Agreement to provide for the
lease by Oakley of an aircraft with flight crew, to Y, LLC on an as-needed,
as-available basis and on a time-sharing basis pursuant to Federal Aviation
Regulation Part 91.501(b)(6) and (c)(1); and
B. Oakley and Y, LLC desire that Y, LLC will not be charged for such flights
and
that no amount will be collected by Oakley, other than the amounts permitted in
Federal Aviation Regulation Part 91.501(d), as more fully set forth in this
Agreement;
NOW THEREFORE, in consideration of the mutual provisions contained herein, the
receipt and sufficiency of which are hereby acknowledged, the Parties agree as
follows:
ARTICLE 1
DEFINITIONS
1.1 AIRCRAFT. The term
"Aircraft" means that certain 2005 Bombardier
BD-700-1A10 aircraft, with a serial number of 9162, registered as N2T and
operated by Oakley under its Operational Control, and all engines and
equipment,
avionics, accessories and furnishings, documentation and other items which are
from time to time incorporated or installed in or attached thereto.
1.2 FAR. The term "FAR"
means the Federal Aviation Regulations.
1.3 FLIGHT CHARGE. The term
"Flight Charge" means the aggregate of (Y) up
to 200 percent of the cost of fuel, oil, lubricants, and other additives used
for a Time Sharing Flight based on the actual Flight Hours for such flight; and
(Z) the following actual expenses, if applicable to a Time Sharing Flight: (i)
travel expenses of the crew, including food, lodging, and ground
transportation;
(ii) hangar and tie-down costs away from the Aircraft's base of operation;
(iii)
insurance obtained for the specific Time Sharing Flight; (iv) landing fees,
airport taxes, and similar assessments, including, but not limited to, Internal
Revenue Code Section 4261 and related excise taxes; (v) customs, foreign
permit,
and similar fees directly related to the Time Sharing Flight; (vi) in flight
food and beverages; (vii) passenger ground transportation; and (viii) flight
planning and weather contract services for the specific Time Sharing Flight.
1.4 FLIGHT CREW. The term
"Flight Crew" means employees of or other
persons under the control of Oakley which shall consist of a properly rated and
qualified captain and a properly rated and qualified first officer.
1.5 FLIGHT HOURS. The term
"Flight Hours" means actual flight time as
depicted in the aircraft flight logs for actual time that the aircraft is aloft
(takeoff to landing) expressed in one-tenth of an hour increments.
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1.6 HOME BASE. The term "Home
Base" means John Wayne-Orange County
Airport, Santa Ana, California.
1.7 LEASE AGREEMENT. The term
"Lease Agreement" means that certain
Aircraft Lease between Oakley and N2T dated December 18, 2003, as amended, with
respect to the Aircraft.
1.8 N2T. The term "N2T"
means N2T, Inc. a Washington corporation and
lessor of the Aircraft to Oakley.
1.9 OPERATIONAL CONTROL. The term
"Operational Control" means being the
legal operator, holding sole authority over initiating, conducting, or
terminating a flight, and having command and control of the Flight Crew.
1.10 TIME SHARING FLIGHT. The term
"Time Sharing Flight" means a specific
flight conducted by Oakley and involving the carriage of officials, employees
or
guests of Y, LLC pursuant to this Agreement as permitted under FAR Part
91.501(b)(6) and (c)(1).
ARTICLE 2
TIME
SHARING
2.1 TIME SHARING ARRANGEMENT.
2.1.1 Subject to Y, LLC's
performance of all of its obligations
hereunder, including payment of all applicable Flight Charges, Oakley hereby
grants to Y, LLC a non-exclusive, non-assignable, non-transferable,
indivisible,
terminable right to use the Aircraft, on an as-needed, as-available basis only,
for Time Sharing Flights scheduled with Oakley pursuant to this Agreement.
2.1.2 For each Time Sharing
Flight where the Aircraft was available
and scheduled pursuant to this Agreement, provided that at such time (i) no
event of default shall have occurred and be continuing under the Lease
Agreement; and (ii) no event of default under the Lease Agreement shall occur
or
result from any such Time Sharing Flight, then Oakley shall provide the
Aircraft
to Y, LLC on a time-sharing basis under FAR Section 91.501(b)(6) and (c)(1) for
such Time Sharing Flight subject to Section 2.1.3 below. Accordingly, for each
such permitted Time Sharing Flight, Oakley shall lease to Y, LLC and Y, LLC
shall lease from Oakley, the Aircraft with Flight Crew pursuant to this
Agreement, at no charge; provided that Y, LLC shall pay to Oakley the
applicable
Flight Charge for such Time Sharing Flight.
2.1.3 Upon the request of Y,
LLC, subject to the availability of the
Aircraft as determined by Oakley in accordance with ARTICLE 3, Oakley shall
make
the Aircraft available to Y, LLC at the Home Base or at such other location as
acceptable to Oakley, in its sole discretion. The repositioning, ferry or dead
head flights of the Aircraft required in connection with Y, LLC's flights of
the
Aircraft under this Agreement, including delivery and redelivery of the
Aircraft
to the Home Base, or such other location as the Parties may agree, shall be
deemed to be use of the Aircraft by Y, LLC (as a Time Sharing Flight) and at Y,
LLC's expense subject to the Flight Charge.
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2.2 RIGHTS RESERVED.
Notwithstanding anything to the contrary herein, all
rights not specifically granted to Y, LLC shall be reserved and remain always
with Oakley. This Agreement shall not be construed to confer any rights upon Y,
LLC by implication, estoppel or otherwise as to the Aircraft.
2.3 LEASE ONLY. At all times during
the term of this Agreement, full legal
title to the Aircraft shall remain vested in Oakley to the exclusion of Y, LLC.
This Agreement and any related documents shall in no way assign or transfer any
right or interest in the Aircraft or any other property of Oakley.
2.4 LEGAL RELATIONSHIPS
2.4.1 With respect to the
Aircraft, Oakley shall be deemed to have
Operational Control of the aircraft at all times during the term of this
Agreement, including but not limited to during all Time Sharing Flights.
2.4.2 Oakley does not intend to
enter into, and this Agreement is not
intended to create or constitute, a joint ownership agreement, as such term is
defined in FAR Section 91.501(c)(3), or a joint venture, partnership, business
organization, association, cooperative arrangement or other relationship by and
among Oakley and Y, LLC and through which any party may be held liable for the
omissions or commissions of any other party. This Agreement is intended to
create a time sharing agreement as such term is defined in FAR Section
91.501(c)(1).
2.5 SUBORDINATE TO LEASE AGREEMENT.
2.5.1 Oakley and Y, LLC hereby
acknowledge that this Agreement (1)
does not convey any lien or other interest in or against the Aircraft to Y,
LLC;
and (2) expressly (A) remains, subject and subordinate to the Lease Agreement
and the rights of N2T thereunder and in and to the Aircraft; and (B) does not
permit any further disposition of the Aircraft.
2.5.2 Oakley and Y, LLC hereby
acknowledge that to the extent any
provision in this Agreement is inconsistent with the provisions of the Lease
Agreement or cause Oakley to breach any of its representations, warranties or
agreements under the Lease Agreement, then the provisions in the Lease
Agreement
shall control.
ARTICLE 3
SCHEDULING
AND LOGISTICS
3.1 SCHEDULING
3.1.1 Y, LLC shall advise
Oakley of its request for flight time and
use of the Aircraft under this Agreement by giving Oakley advance notice by
telephone and/or facsimile. Time Sharing Flight requests must be made at least
two (2) hours prior to the scheduled take-off time of the first leg. Each Time
Sharing Flight request shall include the information that is reasonably
required
by Oakley. If the Aircraft is not available, Oakley shall attempt to advise Y,
LLC as soon as practicable. All requests for Time Sharing Flights, unless
accepted by Oakley, shall be deemed rejected.
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3.1.2 In addition to the
proposed schedules and flight times, Y, LLC
shall provide at least the following information for each proposed Time







