Exhibit 10.11
TIME-SHARING AGREEMENT
(N219FL)
This Time-Sharing Agreement (the
“Agreement’) is made effective as of March 15, 2004
(the “Effective Date”), by and between JOSTENS, INC., a
Minnesota corporation (“Sublessor”) and DLJ MERCHANT
BANKING III, INC., a Delaware limited partnership
(“Sublessee”).
RECITALS
WHEREAS, Sublessor is the lessee of
that certain aircraft identified as a Citation Jet CJ2, bearing
serial number 111and FAA registration number N219FL, including two
(2) Williams/Rolls Royce FJ44-2C aircraft engines, bearing
manufacturer’s serial numbers 126090 and 126091 installed
thereon, together with the auxiliary power unit, avionics,
equipment, components, accessories, instruments and other items
installed in or attached to the airframe, all spare parts, any
replacement part(s) or engine(s) which may be installed on the
aircraft from time to time, and all logs, manuals and other records
relating to such aircraft (collectively, the
“Aircraft”); and
WHEREAS, Sublessor employs a fully
qualified flight crew to operate the Aircraft; and
WHEREAS, Sublessee desires to lease
the Aircraft and flight crew from Sublessor on a time-sharing
basis, as defined in Section 91.501(c)(1)of the Federal Aviation
Regulations (“FARs”).
NOW, THEREFORE, for and in
consideration of the mutual promises, covenants and conditions
herein set forth, Sublessor and Sublessee agree as
follows:
1.
Lease of
Aircraft . Sublessor agrees to
lease the Aircraft to Sublessee pursuant to the provisions of FAR
91.501(c)(1) and to provide a fully qualified flight crew for all
operations for the period commencing on the Effective Date of this
Agreement and terminating on March 15, 2009, or sooner pursuant to
Section 18. Nothing contained in this Agreement shall be
deemed to prohibit Sublessor, in its discretion, from substituting
for the Aircraft any different aircraft of any type or
model.
2.
Sublessee’s Payment
Obligations . Sublessee shall pay
Sublessor for each flight conducted under this Agreement an amount
equal to the sum of each category of expense set forth below,
provided however , such amount shall in no event
exceed the sum of the following expenses authorized by FAR Section
91.501(d):
(a)
Fuel, oil,
lubricants, and other additives;
(b)
Travel expenses
of the 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
permit, and similar fees directly related to the
flight;
(g)
In-flight food
and beverages;
(h)
Passenger ground
transportation;
(i)
Flight planning
and weather contract services; and
(j)
An additional
charge equal to 100% of the expenses listed in subparagraph (a) of
this Section 2.
3.
Invoicing for
Flights . Sublessor shall pay
all expenses related to the operation of the Aircraft when incurred
and will provide, or contract with third parties to provide, a
monthly invoice to Sublessee setting forth the expenses of each
specific flight through the last day of the month in which any
flight or flights for the account of Sublessee occur, which
expenses shall not exceed the amount permitted under FAR Section
91.501(d). Sublessee shall pay Sublessor for the total amount set
forth on each such invoice within thirty (30) days of receipt of
such invoice. Should Sublessor receive from Sublessee any amounts
under this Agreement not otherwise allowed under the applicable FAR
provisions, Sublessor shall refund such amounts to Sublessee or
apply such amounts to the account of Sublessee promptly after
discovering such unauthorized payments.
4.
Taxes . The parties
acknowledge that, with the exception of 2.(g) and (h), the payments
specified in Section 2 from Sublessee to Sublessor are subject to
the federal excise tax imposed under Section 4261 of the Internal
Revenue Code of 1986, as amended (the “Commercial
Transportation Tax”). Sublessee shall pay to Sublessor (for
remittance to the appropriate governmental agency) all Commercial
Transportation Tax applicable to flights of the Aircraft conducted
hereunder.
5.
Request for
Flights by Sublessee . Sublessee shall
provide Sublessor with requests for flight time and proposed flight
schedules as far in advance of any given flight as is reasonably
possible and in any event at least forty-eight (48) hours in
advance of any requested departure time. Requests for flight time
shall be in a form, whether written or oral, mutually convenient
to, and agreed upon by the parties. In addition to the proposed
schedules and flight times, Sublessee shall provide at least the
following information for each proposed flight at least twenty-four
(24) hours in advance of the scheduled departure as required by
Sublessor or Sublessor’s flight crew:
(a)
proposed
departure point;
(b)
destination;
(c)
date and time of
flight;
2
(d)
number of
anticipated passengers;
(e)
nature and extent
of luggage and/or cargo to be carried;
(f)
date and time of
return flight, if any; and
(g)
any other
information concerning the proposed flight that may be pertinent or
required by Sublessor or Sublessor’s flight crew.
6.
Scheduling
Flights . Sublessor shall have
final authority over the scheduling of the Aircraft; provided,
however, that Sublessor shall use reasonable efforts to accommodate
Sublessee’s needs and to avoid conflicts in scheduling.
Sublessee acknowledges that maintenance and inspection of the
Aircraft shall take precedence over scheduling of the
Aircraft.
7.
Maintenance of
Aircraft . Sublessor shall be
solely responsible for securing maintenance, preventive maintenance
and all required or otherwise necessary inspections of the Aircraft
and shall take such requirements into account in scheduling the
Aircraft. No period of maintenance, preventive maintenance or
inspection shall be delayed or postponed for the purpose of
scheduling the Aircraft, unless such maintenance or inspection can
be safely conducted at a later time in compliance with all
applicable laws and regulations, and within the discretion of the
pilot-in-command. The pilot-in-command shall have final and
complete authority to cancel or terminate any flight for any reason
or condition which in his or her judgment would compromise the
safety of the flight.
8.
Operational
Control . “Operational
control” as defined in the FARs and for the purposes of this
Agreement, with respect to a flight, means the exercise of
authority over initiating, conducting, or terminating a flight.
Sublessor shall have operational control of the Aircraft, which
shall include, without limitation, providing the flight crew,
selecting the pilot-in-command and all other physical and technical
operations of the Aircraft.
9.
Flight
Crew . Sublessor shall
employ, or contract with others to employ, pay for and provide to
Sublessee, a qualified flight crew for each flight undertaken under
this Agreement.
10.
Safety of
Flights . In accordance with
applicable FARs, the qualified flight crew provided by Sublessor
shall exercise all of its duties and responsibilities in regard to
the safety of each flight conducted hereunder. Sublessee
specifically agrees that the flight crew, in its sole and absolute
discretion, may terminate any flight, refuse to commence any
flight, or take other action which in the judgment of the
pilot-in-command is necessitated by considerations of safety. No
such action of the pilot-in-command shall create any liability for
loss, injury, damage or delay to Sublessee or any other person. The
parties further agree that Sublessor shall not be liable for delay
or failure to furnish the Aircraft and
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