AIRCRAFT TIME SHARING AGREEMENT
Exhibit 10.12
This AIRCRAFT TIME SHARING AGREEMENT (“Agreement”), dated as of this 4th day of May
2009, is by and between Motorola, Inc. with its principal address at 0000 Xxxx Xxxxxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxx 00000 (“Owner”) and Xxxxxx X. Xxx (“Lessee”).
RECITALS
WHEREAS, Owner owns the aircraft listed in Schedule 1 hereto (the “Aircraft”);
WHEREAS, Lessee desires to lease the Aircraft from Owner and Owner is willing to lease the
Aircraft to Lessee;
WHEREAS, Owner and Lessee have agreed on the lease of the Aircraft under a time sharing
arrangement the terms and conditions of which are set forth herein;
WHEREAS, this Agreement is entered into in recognition of and in compliance with the
applicable provisions of U.S. Code of Federal Regulations 14 C.F.R. §91.501(c)(1).
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto
agree as follows:
ARTICLE 1: LEASE OF AIRCRAFT; TERM
1.1 Lease of Aircraft. Subject to the terms and conditions herein, Owner shall lease
the Aircraft to Lessee from time to time with a flight crew for the operation thereof, for all
flights pursuant to the provisions of this Agreement from and after January 1, 2009, as and when
required by Lessee so long as the Aircraft is not otherwise employed on behalf of Owner. Lessee’s
use of the Aircraft shall constitute a non-exclusive lease.
1.2 Term. The lease of the Aircraft under the terms and provisions of this Agreement
shall become effective upon the date and time the Aircraft is delivered to Lessee and the Aircraft
shall upon delivery, without further deed of lease or transfer, pass under and become subject to
the terms and conditions of this Agreement. The Aircraft shall be deemed re-delivered to Owner
upon the conclusion of each flight which Owner operates on behalf of Lessee.
ARTICLE 2: PERMISSIBLE CHARGES; TAXES
2.1 Fees and Charges. As consideration for the lease of the Aircraft, Lessee shall
pay up to the following charges to Owner on a flight-by-flight basis following the completion of
each flight with the Aircraft:
| (a) | Fuel, oil, lubricants and other additives; | ||
| (b) | Travel expenses of the crew, including fuel, 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, if applicable; | ||
| (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 percent of the expenses listed in Section 2.1(a). |
The maximum amount which Lessee shall reimburse Owner for each use of the Aircraft subject to
this Agreement is set forth in Schedule 1 hereto. Under no circumstances shall the compensation
paid by the Lessee to the Owner under this agreement exceed the amounts permissible under 14 C.F.R.
§91.501(d).
2.2 Invoice and Payment. Within thirty (30) business days following the completion of
each flight of the Aircraft on behalf of Lessee, Owner shall invoice Lessee for the charges
determined by the parties and on record in the Motorola Aviation Department; provided, however,
those charges shall not exceed the total charges specified in Section 2.1. Lessee shall pay the
amount stated in the invoice within ten (10) business days following its receipt.
2.3 Taxes. The payment of any compensation in connection with the flights conducted
on behalf of Lessee under this agreement is subject to federal transportation excise tax as
provided under 29 U.S.C. §4261. Owner shall be responsible for the payment of any and all federal
transportation excise taxes in connection with this Agreement. All other federal, state, or local
taxes, duties or assessments imposed on the charges specified in Section 2.1 shall be the
responsibility of Owner.
ARTICLE 3: DELIVERY AND REDELIVERY OF AIRCRAFT
3.1 Scheduling of Aircraft. Whenever possible, Lessee shall request use of the
Aircraft no less than twenty-four (24) hours prior to the requested departure time. All requests
for the use of the Aircraft shall be submitted in writing to the Motorola Aviation Department.
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Each such request shall specify the name of the Lessee, the date of departure, the date of
return, the point of origin and the destination, the number and name of all passengers and
emergency contact information for each passenger which shall not be another passenger on the same
flight. Owner shall have final and exclusive authority over the scheduling of the Aircraft.
3.2 Delivery and Redelivery of Aircraft. Delivery and redelivery of the Aircraft by
one party to the other party shall ordinarily be made at Chicago Executive Airport, in Palwuakee,
Illinois; provided, however, that delivery and/or redelivery of the Aircraft may be made at such
other airport as shall be agreed upon by the parties.
ARTICLE 4: FLIGHT CREWS AND FLIGHT OPERATIONS
4.1 Flight Crews. Owner shall provide a complete flight crew for the operation of the
Aircraft during the lease of the Aircraft to Lessee under this Agreement. Each member of such
flight crew shall be duly licensed and qualified to operate the Aircraft in accordance with the
regulations and requirements of the Federal Aviation Administration (“FAA”).
4.2 Operational Control. Owner shall at all times have operational control over all
flights performed under this Agreement and shall be solely responsible for compliance with all
applicable FAA regulations. The Lessee shall have the right to determine the schedules and
destination of a flight while the Aircraft is being operated on behalf of Lessee, provided however
that the pilot-in-command shall have sole authority to determine whether a flight may be safely
operated and to initiate and terminate flights. Lessee undertakes to accept all decisions of the
pilot-in-command regarding the operation of the Aircraft.
4.3 Operation of Aircraft. Owner shall operate the Aircraft in a safe and reasonable
manner and at all times in compliance with all applicable laws and regulations, including, without
limitation, the rules and regulations of the FAA.
ARTICLE 5: MAINTENANCE
5.1 Aircraft Maintenance. During the term of this Agreement, Owner shall service and
repair the Aircraft so as to:
| (a) | maintain the Aircraft in good operating condition; | ||
| (b) | keep the Aircraft duly certified as airworthy at all times under the regulations of the FAA; | ||
| (c) | maintain the Aircraft in accordance with the standards prescribed by applicable law as the same may be in effect from time to time; and | ||
| (d) | maintain all records, logs and other documents required to be maintained with respect to the Aircraft. |
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5.2 Maintenance Scheduling. All maintenance and inspections of the Aircraft shall
have priority in scheduling the operation of the Aircraft on behalf of Lessee, unless such
maintenance and inspections may be deferred in accordance with applicable FAA regulations and
recommended manufacturer maintenance procedures.
ARTICLE 6: REPRESENTATIONS AND WARRANTIES
6.1 Owner Representations and Warranties. Owner represents and warrants to Lessee as
follows:
| (a) | Owner has title to the Aircraft and has all necessary authority to enter into this Agreement for the lease of the Aircraft to Lessee; and | ||
| (b) | Owner has not entered into this Agreement for the purpose of engaging in the sale of air transportation services for compensation or hire in contravention of the rules and regulations of the FAA. |
6.2 Lessee Representations and Warranties. Lessee represents and warrants to Owner as
follows:
| (a) | Lessee has all necessary authority to enter into this Agreement for the lease of the Aircraft from Owner; and | ||
| (b) | Lessee has not entered into this Agreement for the purpose of engaging in the sale of air transportation services or for compensation or hire in contravention of the rules and regulations of the FAA. |
ARTICLE 7: INSURANCE
7.1 Insurance. Owner shall provide and maintain Aircraft third party aviation legal
liability insurance in an amount not less than Two Hundred Fifty Million Dollars ($250,000,000).
Such insurance shall include the following provisions:
| (a) | Lessee shall be named as an additional insured; | ||
| (b) | Such insurance shall be primary without any right of contribution from any insurance carried by the Lessee; | ||
| (c) | The underwriter of such insurance shall waive any right of subrogation with respect to potential claims against Lessee. |
7.2 Indemnification. Owner hereby indemnifies and agrees to hold Lessee harmless from
and against any and all liabilities, claims, demands, suits, judgments, damages, losses, costs and
expenses (including reasonable legal expenses and attorneys’ fees) for or on account of or in any
way connected with injury to or death of any persons whomsoever or loss of or damage to property
arising out of (i) the use or operation of the Aircraft under this Agreement or in any way
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connected with this Agreement including but not limited to the Aircraft and related equipment
or (ii) the performance or nonperformance by Owner of its responsibilities under this Agreement,
unless such loss or damage results from the gross negligence or willful misconduct of Lessee.
ARTICLE 8: TERMINATION
8.1 Termination by Owner. Owner shall have the right to terminate this Agreement with
immediate effect upon written notice to Lessee. This Agreement shall automatically terminate upon
the cessation of Lessee’s employment by Owner.
ARTICLE 9: MISCELLANEOUS
9.1 Governing Law. This Agreement shall be construed and performance hereof shall be
determined in accordance with laws of the State of Illinois (excluding conflict of laws
principles).
9.2 Severability. If any provision of this Agreement becomes invalid, illegal or
unenforceable in any respect under any law, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired.
9.3 Counterparts. This Agreement may be executed in any number of counterparts, each
such counterpart constituting an original hereof.
ARTICLE 10: TRUTH-IN-LEASING
10.1 Truth-in-Leasing. THE AIRCRAFT SUBJECT TO THIS TIME SHARING AGREEMENT HAS BEEN
MAINTAINED AND INSPECTED IN ACCORDANCE WITH PART 91 OF THE FEDERAL AVIATION REGULATIONS DURING THE
TWELVE (12) MONTHS PRECEDING THE EFFECTIVE DATE HEREOF AND THE OWNER HERETO CERTIFY THAT FOR THE
PURPOSES OF THE OPERATION TO BE CONDUCTED PURSUANT TO THIS AGREEMENT THE AIRCRAFT IS IN FULL
COMPLIANCE WITH THE APPLICABLE MAINTENANCE AND INSPECTION REQUIREMENTS OF SAID PART 91. THE NAME
AND ADDRESS OF THE PARTY RESPONSIBLE FOR THE OPERATIONAL CONTROL OF THE AIRCRAFT FOR THE TERM OF
THIS AGREEMENT IS MOTOROLA, INC., 0000 XXXX XXXXXXXXX XXXX, XXXXXXXXXX, XXXXXXXX 00000 AND SAID
PARTY HEREBY CERTIFIES THAT IT UNDERSTANDS ITS RESPONSIBILITY TO COMPLY WITH APPLICABLE FEDERAL
AVIATION REGULATIONS. AN EXPLANATION OF THE FACTORS BEARING ON OPERATIONAL CONTROL AND PERTINENT
FEDERAL AVIATION REGULATIONS CAN BE OBTAINED FROM THE NEAREST FEDERAL AVIATION ADMINISTRATION
FLIGHT STANDARDS DISTRICT OFFICE.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
4th day of May 2009.
| MOTOROLA, INC. | LESSEE | |||||||||
| /s/Xxxx X. Xxx | /s/ Xxxxxx X. Xxx | |||||||||
Name:
|
Xxxx X. Xxx | Name: Xxxxxx X. Xxx | ||||||||
Title:
|
Senior Vice President, Human Resources |
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SCHEDULE 1
AIRCRAFT SUBJECT TO THE TIME SHARING AGREEMENT
Aircraft
|
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Dassault Falconjet 50EX |
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Gulfstream G450 |
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Gulfstream G450 |
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Gulfstream G550 |
