Exhibit 10.1
TIME SHARING AGREEMENT
This Time Sharing Agreement (this "AGREEMENT") is made, effective as of
March 29, 2005 (the "EFFECTIVE DATE"), by and between Liberty Media Corporation,
a corporation incorporated under the laws of the State of Delaware, with
principal offices at 00000 Xxxxxxx Xxxx., Xxxxxxxxx, XX 00000 ("LESSOR"), and
Xxxxxx X. Xxxxxxx, with an address of 00000 Xxxxxxx Xxxx., Xxxxxxxxx, XX 00000
("LESSEE");
RECITALS
A. Lessor is the owner of an undivided 75% interest in the civil aircraft
bearing the United States Registration Number N730LM and Manufacturer's Serial
Number 101, and of the type of a Dassault Falcon 900EX ("AIRCRAFT");
X. Xxxxxx employs a fully qualified flight crew to operate the Aircraft;
C. Liberty Media International, Inc. ("LMI") owns the remaining undivided
25% interest in the Aircraft;
X. Xxxxxx and LMI are parties to an Agreement for Aircraft Joint Ownership
and Management dated as of May 21, 2004, the terms and conditions of which
govern the ownership and operation of the Aircraft (the "MANAGEMENT AGREEMENT");
and
X. Xxxxxx desires to lease the Aircraft and flight crew to Lessee on a time
sharing basis as defined in Section 91.501(c)(1) of the Federal Aviation
Regulations ("FARS").
The parties agree as follows:
1. Lessor agrees to lease the Aircraft to Lessee pursuant to the provisions
of FAR 91.501(c)(1) and to provide a fully qualified flight crew for all
operations pursuant to this Agreement. This Agreement shall commence on the
Effective Date and continue until the first anniversary of the Effective Date.
Thereafter, this Agreement shall be automatically renewed on a month-to-month
basis, unless sooner terminated by either party as provided in this Agreement.
Either party may terminate this Agreement at any time (including during the
initial one-year term) upon 30 days' written notice to the other party,
delivered personally or by certified mail, return receipt requested, at the
address for the other party as set forth in the preamble to this Agreement.
2. Lessee shall pay Lessor an amount equal to the fair market value of each
flight conducted under this Agreement, as determined by Lessor, which in no
event shall exceed the following actual expenses of each specific flight as
authorized by FAR Part 91.501(d):
(a) Fuel, oil, lubricants, and other additives;
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(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, including
any federal excise tax that may be imposed under IRC Section 4261
or any similar excise taxes, if any;
(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 paragraph.
3. Lessor will pay all expenses related to the operation of the Aircraft
when incurred and will xxxx Lessee on a monthly basis as soon as practically
possible after the last day of each calendar month for the fair market value of
any and all flights for the account of Lessee under this Agreement during the
preceding month, as determined by Lessor, but in no event more than an amount
equal to the expenses enumerated in paragraph 2 for each such flight. Lessee
shall pay Lessor for all flights for the account of Lessee pursuant to this
Agreement within 30 days after receipt by Lessee of the invoice therefor. If
requested by Lessee, Lessor will provide Lessee with a detailed accounting of
the expenses enumerated in paragraph 2 for each flight for the account of Lessee
pursuant to this Agreement.
4. Lessee will provide Lessor with requests for flight time and proposed
flight schedules as far in advance of any given flight as possible, and in any
case, at least 24 hours in advance of Lessee's planned departure unless Lessor
otherwise agrees. Requests for flight time shall be in a form, whether written
or oral, agreed upon by the parties. In addition to the proposed schedules and
flight times, Lessee shall provide at least the following information for each
proposed flight prior to scheduled departure at such time as required by Lessor
or Lessor's flight crew:
(a) departure point;
(b) destination;
(c) date and time of flight;
(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
reasonably required by Lessor or Lessor's flight crew.
5. Lessor shall have final authority over the scheduling of the Aircraft,
including any limitations on the number of passengers on any flight for the
account of Lessee pursuant to this
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Agreement; provided, however, that Lessor will use commercially reasonable
efforts to accommodate Lessee's needs and to avoid conflicts in scheduling.
6. As between Lessor and Lessee, Lessor shall be solely responsible for
securing 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 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 sound discretion of the pilot in command. The pilot in command shall have
final and complete authority to cancel any flight for any reason or condition
that in his judgment would compromise the safety of the flight.
7. Lessor shall employ, pay for and provide to Lessee a qualified flight
crew for each flight undertaken under this Agreement.
8. In accordance with applicable Federal Aviation Regulations, the
qualified flight crew provided by Lessor will exercise all of its duties and
responsibilities in regard to the safety of each flight conducted hereunder.
Lessee specifically agrees that the flight crew, in its sole discretion, may
terminate any flight, refuse to commence any flight, or take other action that
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 loss, injury, damage or delay to Lessee or any other
Person. The parties further agree that Lessor shall not be liable for delay or
failure to furnish the Aircraft and 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, or acts of
God or any other event or circumstance beyond the reasonable control of Lessor.
9. (a) At all times during the term of this Agreement, Lessor shall cause
to be carried and maintained, at Lessor's cost and expense, physical damage
insurance with respect to the Aircraft, third party aircraft liability
insurance, passenger legal liability insurance, property damage liability
insurance, and medical expense insurance in such amounts and on such terms and
conditions as Lessor shall determine in its sole discretion. Lessor shall bear
the cost of paying any deductible amount on any policy of insurance in the event
of a claim or loss.
(b) Any policies of insurance carried in accordance with this Agreement:
(i) shall name Lessee as an additional insured; (ii) shall contain a waiver by
the underwriter thereof of any right of subrogation against Lessee; (iii) shall
provide that in respect of the interests of Lessee, such policies of insurance
shall not be invalidated by any action or inaction of Lessor or any other Person
and shall insure Lessee (subject to the limits of liability and exclusions set
forth in such policies) regardless of any breach or any violation of any
warranty, declarations or conditions contained in such policies by Lessor or any
other Person; and (iv) shall provide that the insurers shall provide at least 30
days' prior written notice (or at least seven days' prior written notice in the
case of any war-risk insurance) to Lessee if the insurers cancel insurance for
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any reason whatsoever, or if the same is allowed to lapse for non-payment of
premium. Each liability policy shall be primary without right of contribution
from any other insurance that is carried by Lessee or Lessor and shall expressly
provide that all of the provisions thereof, except the limits of liability,
shall operate in the same manner as if there were a separate policy covering
each insured.
(c) Lessor shall obtain the approval of this Agreement by the insurance
carrier for each policy of insurance on the Aircraft. If requested by Lessee,
Lessor shall arrange for a Certificate of Insurance evidencing the insurance
coverage with respect to the Aircraft carried and maintained by Lessor to be
given by its insurance carriers to Lessee or will provide Lessee with a copy of
any such insurance policies. Lessor will give Lessee reasonable advance notice
of any material modifications to insurance coverage relating to the Aircraft.
Lessee agrees that the proceeds of insurance will be Lessee's sole recourse
against Lessor with respect to any claims that Lessee may have under this
Agreement, except in the event of gross negligence or willful misconduct by
Lessor. In no event shall Lessor be liable for any indirect, consequential,
special or incidental damages with respect to any matter relating to this
Agreement.
10. Lessee warrants to Lessor that:
(a) it will use the Aircraft for and on account of its own business
only and will not use the Aircraft for the purpose of providing
transportation of passengers or cargo in air commerce for compensation or
hire, for any illegal purpose, or in violation of any insurance policies
with respect to the Aircraft;
(b) it will refrain from incurring any mechanics' or other lien in
connection with inspection, preventive maintenance, maintenance or storage
of the Aircraft, whether permissible or impermissible under this Agreement,
and it will not attempt to convey, mortgage, assign, lease or in 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;
(c) it will not use the Aircraft in any manner that would result in a
violation of the Management Agreement by Lessor; and
(d) it will comply with all applicable laws, governmental and airport
orders, rules and regulations, as shall from time to time be in effect
relating in any way to the operation and use of the Aircraft under this
Agreement.
11. For purposes of this Agreement, the permanent base of operation of the
Aircraft shall be Centennial Airport, Englewood, Colorado.
12. Lessee shall not assign this Agreement or its interest herein to any
other Person without the prior written consent of Lessor, which may be granted
or denied in Lessor's sole and absolute discretion. Subject to the preceding
sentence, this Agreement shall inure to the benefit of and be binding upon the
parties hereto, and their respective heirs, representatives, successors and
assigns, and does not confer any rights on any other Person.
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13. This Agreement constitutes the entire understanding between the parties
with respect to the subject matter contained herein and supersedes any prior
understandings and agreements between them respecting such subject matter. This
Agreement may be amended or supplemented only by a written instrument signed by
all parties. If any provision of this Agreement is held invalid or unenforceable
by any court of competent jurisdiction, the other provisions of this Agreement
will remain in full force and effect. The failure or delay on the part of any
party to insist on strict performance of any of the terms and conditions of this
Agreement or to exercise any rights or remedies under this Agreement will not
constitute a waiver of any of its rights or remedies hereunder. Words of gender
used in this Agreement may be read as masculine, feminine or neuter as required
by the context. Words of number may be read as singular or plural, as required
by the context. The word "include" and derivatives of that word are used in this
Agreement in an illustrative sense rather than a limiting sense. The word "or"
is not exclusive and shall be interpreted as meaning "and/or." The words "shall"
and "will" are used interchangeably and are intended to have the same meaning.
Where applicable, this Agreement may be referred to as "this Lease." The term
"Person" means an individual, corporation, partnership, limited liability
company, trust, association, unincorporated organization or other entity. This
Agreement will be governed by and construed in accordance with the laws of the
State of Colorado without regard to conflicts of laws principles. This Agreement
may be executed in two or more identical counterparts, each of which will be
deemed to be an original copy of this Agreement and all of which counterparts
taken together will be deemed to constitute one and the same instrument.
14. TRUTH IN LEASING STATEMENT
THE AIRCRAFT, A DASSAULT FALCON 900EX, MANUFACTURER'S SERIAL NO. 101,
CURRENTLY REGISTERED WITH THE FEDERAL AVIATION ADMINISTRATION AS N730LM, HAS
BEEN MAINTAINED AND INSPECTED UNDER FAR PART 91 DURING THE 12 MONTH PERIOD
PRECEDING THE DATE OF THIS LEASE.
THE AIRCRAFT WILL BE MAINTAINED AND INSPECTED UNDER FAR PART 91 FOR
OPERATIONS TO BE CONDUCTED UNDER THIS LEASE. DURING THE DURATION OF THIS LEASE,
LIBERTY MEDIA CORPORATION, WITH PRINCIPAL OFFICES AT 00000 XXXXXXX XXXX.,
XXXXXXXXX, XX 00000, IS CONSIDERED RESPONSIBLE FOR OPERATIONAL CONTROL OF THE
AIRCRAFT UNDER THIS LEASE.
AN EXPLANATION OF FACTORS BEARING ON OPERATIONAL CONTROL AND PERTINENT
FEDERAL AVIATION REGULATIONS CAN BE OBTAINED FROM THE NEAREST FAA FLIGHT
STANDARDS DISTRICT OFFICE.
THE "INSTRUCTIONS FOR COMPLIANCE WITH TRUTH IN LEASING REQUIREMENTS"
ATTACHED HERETO ARE INCORPORATED HEREIN BY REFERENCE.
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I, THE UNDERSIGNED, XXXXXXXXXXX X. XXXXX, AS SENIOR VICE PRESIDENT AND
CONTROLLER OF LIBERTY MEDIA CORPORATION, WITH PRINCIPAL OFFICES AT 00000 XXXXXXX
XXXX., XXXXXXXXX, XX 00000, CERTIFY THAT LIBERTY MEDIA CORPORATION IS
RESPONSIBLE FOR OPERATIONAL CONTROL OF THE AIRCRAFT AND THAT IT UNDERSTANDS ITS
RESPONSIBILITIES FOR COMPLIANCE WITH APPLICABLE FEDERAL AVIATION REGULATIONS.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
LESSOR - LIBERTY MEDIA CORPORATION
By:
---------------------------------
Xxxxxxxxxxx X. Xxxxx, Senior Vice
President and Controller
LESSEE - XXXXXX X. XXXXXXX
-------------------------------------
Xxxxxx X. Xxxxxxx, individually
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INSTRUCTIONS FOR COMPLIANCE WITH "TRUTH IN LEASING"
REQUIREMENTS
1. Mail a copy of the lease to the following address via certified mail,
return receipt requested, immediately upon execution of the lease (14
C.F.R. 91.23 requires that the copy be sent within 24 hours after it is
signed):
Federal Aviation Administration
Aircraft Registration Branch
ATTN: Technical Section
X.X. Xxx 00000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
2. Telephone the nearest Flight Standards District Office at least 48 hours
prior to the first flight under this lease.
3. Carry a copy of the lease in the Aircraft at all times.
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