Exhibit 10.28
TIME SHARING
AGREEMENT
This Time Sharing Agreement (this
“Agreement”) is made and entered into as of
October 2, 2006 among ROSEMONT PROJECT MANAGEMENT, L.L.C., a
Delaware limited liability company (the “Owner”) and
the following parties (each individually a “Lessee” and
collectively the “Lessees”): MARMON HOLDINGS, INC., a
Delaware corporation, GLOBAL HYATT CORPORATION, a Delaware
corporation, PRITZKER REALTY GROUP, L.P., a Delaware limited
partnership, TRANS UNION CORP., a Delaware corporation,
CC-DEVELOPMENT GROUP, INC., a Delaware corporation, H GROUP
HOLDING, INC., a Delaware corporation, THE PRITZKER ORGANIZATION,
L.L.C, a Delaware limited liability company, INTERNATIONAL
FINANCIAL ADVISORS, INC., an Illinois corporation, U.S. FINANCIAL
ADVISORS, INC., an Illinois corporation, DIVERSIFIED FINANCIAL
MANAGEMENT CORP., a Delaware corporation, and Karl J. Breyer,
Marshall E. Eisenberg, and Thomas J. Pritzker, not individually but
as Co-Trustees of each of the trusts described on the attached
Schedule A .
W
I T N
E S S E T H
:
WHEREAS, Owner is the registered
owner of that certain Daussault-Breguet Falcon 900EX
aircraft bearing the United States Registration Number N312P
(the “Aircraft”);
WHEREAS, Owner contracts to provide
a fully qualified flight crew to operate the Aircraft (the
“Flight Crew”); and
WHEREAS, from time to time, each
Lessee desires to lease the Aircraft and the Flight Crew from Owner
on a time sharing basis as defined in Section 91.501(c)(1) of
the Federal Aviation Regulations (the
“FAR”).
NOW THEREFORE, Owner and Lessees,
declaring their intention to enter into and be bound by this
Agreement, and for the good and valuable consideration set forth
below, hereby covenant and agree as follows:
1. Term; Lease . This
Agreement shall become effective as of October 2, 2006 (the
“Effective Date”) and shall continue in effect until
Owner delivers to the Lessees at least 45 days prior written notice
of termination of this Agreement. Each Lessee may terminate its
participation in this Agreement by delivering written notice to the
other Lessees and Owner at least 45 days prior to the effective
date of such termination. From and after the Effective Date until
the termination of this Agreement, Owner hereby agrees to lease the
Aircraft to each Lessee pursuant to the provisions of
Section 91.501(c)(1) of the FAR and to provide the services of
the Flight Crew for all operations.
2. Scheduling . Each Lessee
shall provide Owner with requests for flights and proposed flight
schedules as far in advance of any given flight as possible, and in
any case, at least (a) 24 hours in advance of the
Lessee’s planned departure, with respect to flights within
the continental United States, and (b) three (3) days in
advance of the Lessee’s planned departure, with respect to
all other flights, provided that Owner may waiver the required
notice provisions in its sole discretion. One or more Lessees may
request a “joint flight” whereby the costs of such
flight will be shared among two or more Lessees, which combined
costs will not exceed the Flight Fee described in Paragraph 3.
Requests for flight time shall be in a written form that shall be
provided to the Lessees by Owner, and shall include:
|
|
(a)
|
proposed
departure point;
|
|
|
(c)
|
date and time
of flight;
|
|
|
(d)
|
the number of
anticipated passengers;
|
|
|
(e)
|
the names of
the anticipated passengers;
|
|
|
(f)
|
the nature and
extent of luggage and/or cargo to be carried; and
|
|
|
(g)
|
the date and
time of a return flight, if any.
|
In addition, the Lessee(s) shall
provide any other information concerning the proposed flight that
may be pertinent or required by Owner or the Flight Crew. Owner
shall have final authority over the scheduling of the Aircraft;
provided, however, that Owner shall use its best efforts to
accommodate Lessee’s needs and to avoid conflicts in
scheduling. The pilot in command shall have final and complete
authority to cancel any flight for any reason or condition that, in
his or her judgment, would compromise the safety of the
flight.
3. Flight Fee . For each
flight provided for Lessee under this Agreement, Lessee shall pay
Owner an amount (the “Flight Fee”) equal to the
“Direct Cost Rate” published annually by
Conklin & de Decker (or any comparable publication if
Conklin & de Decker is no longer available or no longer
appropriate to use for this purpose) for operating a
Daussault-Breguet Falcon 900EX aircraft for the applicable
Flight Time, but in no event shall the amount paid exceed the
actual expenses incurred for the flight, determined as authorized
by FAR Part 91.501(d)(1)-(10) as the sum of the following costs and
expenses:
|
|
(a)
|
fuel, oil,
lubricants and other additives;
|
|
|
(b)
|
travel expenses
of the Flight Crew, including food, lodging and ground
transportation;
|
|
|
(c)
|
hangar and tie
down costs away from the Aircraft’s base of
operation;
|
|
|
(d)
|
insurance
obtained for the specific flight;
|
|
|
(e)
|
landing fees,
airport taxes and similar assessments;
|
|
|
(f)
|
customs,
foreign permits, and similar fees directly related to the
flight;
|
|
|
(g)
|
in-flight food
and beverages;
|
|
|
(h)
|
passenger
ground transportation;
|
- 2 -
|
|
(i)
|
flight planning
and weather contract services; and
|
|
|
(j)
|
an additional
charge equal to 100 percent of the fuel, oil, lubricants and other
additives expense listed in item (a) above.
|
The Direct Cost Rate shall be
determined as provided herein at the beginning of each calendar
year based on the information available at that time, and shall
apply to all flights provided for Lessee under this Agreement for
that calendar year.
For purposes of this Agreement, the
term “Flight Time” shall mean actual flight time (in
hours and minutes) entered into the aircraft flight log for each
flight segment, but shall not include taxi time or waiting
time.
If a joint flight is requested, each
of the Lessees requesting such joint flight (the “Requesting
Lessees”) shall be responsible for its ratable share of the
Flight Fee, based solely on the number of Requesting Lessees unless
the Requesting Lessees provide Owner with a percentage allocation
of the Flight Fee for a flight among the Requesting Lessees within
a reasonable time after completion of the joint flight, in which
case each Requesting Lessee shall be responsible solely for its
proportionate share of the Flight Fee for such flight.
4. Expenses . Owner shall pay
for and provide the Flight Crew for each flight undertaken under
this Agreement. Owner shall pay all expenses related to the
maintenance and operation of the Aircraft. All liability relating
to maintenance and operation of the Aircraft, regardless of whether
operated pursuant to this Agreement or otherwise, will be and shall
remain with Owner.
5. Maintenance . Owner shall
be solely responsible for securing operating maintenance,
preventive maintenance and required or otherwise necessary
inspections on the Aircraft and shall take such requirements into
account in scheduling the Aircraft. No period of operations
maintenance, preventive maintenance or inspection shall be delayed
or postponed for the purpose of scheduling a flight under this
Agreement unless such maintenance or inspection can be safely
conducted at a later time in compliance with all applicable laws
and regulations and within the sound discretion of the pilot in
command.
6. Flight Crew Authority . In
accordance with the applicable FAR, the Flight Crew shall exercise
all of its duties and responsibilities in regard to the safety of
each flight conducted hereunder. Each Lessee 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 judgment 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 any loss, injury, damage
or delay to the Lessee(s) who requested such flight or any other
person. The Lessees further agree that Owner shall not be liable
for any delay or failure to furnish the Aircraft and the Flight
Crew pursuant to this Agreement when such failure is caused by
government regulation or authority, mechanical difficulty, war,
civil commotion, strikes or labor disputes, weather conditions,
acts of God or other causes outside the reasonable control of
Owner.
7. Insurance . Owner shall
provide such additional insurance coverage with respect to a given
flight as the Lessee(s) requesting such flight insurance shall
request or require.
- 3 -
8. Lessees’
Representations . Each Lessee hereby represents and warrants to
Owner that:
(a) it shall use the Aircraft for
and on account of its and its subsidiaries own business only and
shall not use the Aircraft for the purposes of providing
transportation of passengers or cargo in air commerce for
compensation or hire;
(b) it shall refrain from incurring
any mechanics or other lien in connection with inspection,
preventative maintenance, maintenance or storage of the Aircraft
whether permissible or impermissible under this Agreement, nor
shall there be any attempt by any party hereto 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;
and
(c) during the term of this
Agreement, it shall abide by and conform to all such laws,
governmental and airport orders, and rules and regulations as shall
be in effect from time to time that relate in any way to the
operation and use of the Aircraft by a time sharing
lessee.
9. Base of Operations . For
purposes of this Agreement, the permanent base of operation of the
Aircraft shall be in Chicago, Illinois.
10. Assignment . Neither this
Agreement nor any party’s interest herein shall be assignable
to any other party whatsoever. This Agreement shall inure to the
benefit of and be binding upon the parties hereto, their heirs,
representatives and successors.
11. Notices . All notices
required or permitted hereunder shall be in writing and shall be
delivered by personal service, by the United States mail
(registered or certified mail), by prepaid overnight courier or by
confirmed facsimile transmission, in any case addressed to the
intended recipient as set forth below such recipient’s name
on the signature pages hereto. Any such communication shall be
deemed received by the addressee thereof (i) when delivered by
personal service, (ii) three business days after it is sent by
registered or certified mail, return receipt requested,
(iii) two business days after it is sent via a reputable
overnight courier service, or (iv) upon receipt by the sender
of confirmation of transmittal via facsimile. Any party may change
its address for receipt of notice of such change by sending a
notice to the other party in the manner prescribed
above.
12. Counterparts . This
Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which shall constitute
one and the same agreement.
13. Truth In Leasing . THE
FOLLOWING CONSTITUTE THE TRUTH IN LEASING STATEMENTS REQUIRED UNDER
SECTION 91.23 OF THE FAR:
(a) OWNER HEREBY CERTIFIES THAT THE
AIRCRAFT HAS BEEN INSPECTED AND MAINTAINED WITHIN THE 12 MONTH
PERIOD PRECEDING THE DATE OF THIS AGREEMENT IN ACCORDANCE WITH ALL
APPLICABLE PROVISIONS OF FAR PART 91 AND ALL APPLICABLE
REQUIREMENTS FOR THE MAINTENANCE AND INSPECTION THEREUNDER HAVE
BEEN MET.
- 4 -
(b) OWNER AGREES, CERTIFIES AND
KNOWINGLY ACKNOWLEDGES THAT WHEN THE AIRCRAFT IS OPERATED UNDER
THIS AGREEMENT, OWNER SHALL BE KNOWN AS, CONSIDERED, AND SHALL IN
FACT BE THE OPERATOR OF SUCH AIRCRAFT.
(c) THE PARTIES UNDERSTAND THAT AN
EXPLANATION OF FACTORS AND PERTINENT FEDERAL AVIATION REGULATIONS
BEARING ON OPERATIONAL CONTROL CAN BE OBTAINED FROM THE FEDERAL
AVIATION ADMINISTRATION, FSDO #3, CHICAGO, IL 60185. EACH LESSEE
FURTHER CERTIFIES THAT IT SHALL SEND A TRUE COPY OF THIS EXECUTED
AGREEMENT TO:
AIRCRAFT REGISTRATION
BRANCH
ATTN: TECHNICAL SECTION
P.O. BOX 25724
OKLAHOMA CITY, OKLAHOMA 73125
WITHIN 24 HOURS OF ITS EXECUTION, AS
PROVIDED BY SECTION 91.23(c)(1) OF THE FAR.
A COPY OF THIS AGREEMENT MUST BE
CARRIED IN THE
AIRCRAFT WHILE IT IS BEING
OPERATED HEREUNDER.
[REMAINDER OF PAGE INTENTIONALLY
LEFT BLANK]
- 5 -
IN WITNESS WHEREOF, the parties
hereto have executed this Agreement as of the date first above
written. The persons signing below warrant their authority to
sign.
|
|
|
|
Owner:
ROSEMONT PROJECT MANAGEMENT, L.L.C,
a Delaware limited liability company
|
|
|
|
By:
|
|
/s/ Kirk
Rose
|
|
Name:
Its:
|
|
Kirk Rose
Vice President
|
|
|
71 South Wacker Drive, Suite 1200
Chicago, Illinois 60606
Telephone: 312/780-5472
Facsimile: 312/780-5281
Attention: Kirk Rose
|
[SIGNATURE PAGE TO TIME SHARING
AGREEMENT]
|
|
|
|
Lessees:
Marmon Holdings, Inc., a Delaware
corporation
|
|
|
|
By:
|
|
/s/ Robert K.
Lorch
|
|
Name:
Its:
|
|
Robert K. Lorch
Vice President and Chief Financial
Officer
|
|
|
225 West Washington Street, 19
th Floor
Chicago, IL 60606
Telephone: 312/845-5326
Facsimile: 312/845-8769
Attention: Robert W. Webb,
Esq.
|
[SIGNATURE PAGE TO TIME SHARING
AGREEMENT]
|
|
|
|
Global Hyatt Corporation, a Delaware
corporation
|
|
|
|
By:
|
|
/s/ Kirk
Rose
|
|
Name:
Its:
|
|
Kirk Rose
Senior Vice President
|
|
|
71 South Wacker Drive, Suite 1200
Chicago, IL 60606
Telephone: 312/780-5472
Facsimile: 312/780-5281
Attention: Kirk Rose
|
[SIGNATURE PAGE TO TIME SHARING
AGREEMENT]
|
|
|
|
|
|
Pritzker Realty
Group, L.P., a Delaware limited partnership
|
|
|
|
By:
|
|
PRGP CORP., a
Delaware corporation, its general partner
|
|
|
|
|
|
By:
|
|
/s/ J. Kevin
Poorman
|
|
|
Name:
Its:
|
|
J. Kevin Poorman
Executive Vice President
|
|
|
71 South Wacker Drive, Suite 4700
Chicago, IL 60606
Telephone: 312/873-4802
Facsimile: 312/873-4891
Attention: J. Kevin
Poorman
|
[SIGNATURE PAGE TO TIME SHARING
AGREEMENT]
|
|
|
|
Trans Union Corp., a Delaware
corporation
|
|
|
|
By:
|
|
/s/ John W.
Blenke
|
|
Name:
Its:
|
|
John W. Blenke
Corporate Secretary
|
|
|
555 West Adams Street
Chicago, IL 60661
Telephone: 312/466-7730
Facsimile: 312/466-7706
Attention: John Blenke
|
[SIGNATURE PAGE TO TIME SHARING
AGREEMENT]
|
|
|
|
CC-Development Group,
Inc.
|
|
|
|
By:
|
|
/s/ Gary
Smith
|
|
Name:
Its:
|
|
Gary Smith
Vice President/Treasurer
|
|
|
71 South Wacker Drive, Suite 900
Chicago, IL 60606
Telephone: 312/803-8575
Facsimile: 312/873-4496
Attention: Gary Smith
|
[SIGNATURE PAGE TO TIME SHARING
AGREEMENT]
|
|
|
|
H Group Holding, Inc., a Delaware
corporation
|
|
|
|
By:
|
|
/s/ John
Stellato
|
|
Name:
Its:
|
|
John Stellato
Vice President
|
|
|
71 South Wacker Drive, Suite 4700
Chicago, IL 60606
Telephone: 312/873-4942
Facsimile: 312/873-4949
Attenti
|