TIME SHARING AGREEMENT
Exhibit 10.2
THIS TIME SHARING AGREEMENT is entered into effective as of the 19th day of June,
2007, by and between CSC TRANSPORT V, INC. (“CSC”), a Delaware corporation with a place of business
at 0000 Xxxxxxxx Xxxxxxx Xxxxxx 0, Xxxxxxxxxxx, Xxx Xxxx 00000 (“Lessor”), and XXXX X. XXXXXX, with
a mailing address at 0000 Xxxxxxx Xxxxxx, Xxxxxxxx, XX 00000 (“Lessee”).
W I T N E S S E T H:
WHEREAS, CSC is the lessee and the operator of a Gulfstream Aerospace GIV-SP aircraft,
manufacturer’s serial number 1230, United States registration N101CV (the “Aircraft”); and
WHEREAS, Lessor employs a fully-qualified and credentialed flight crew to operate the
Aircraft; and
WHEREAS, Lessor has agreed to lease the Aircraft, with flight crew, to Lessee on a “time
sharing” basis as defined in Section 91.501(c)(1) of the Federal Aviation Regulations (“FAR”) upon
the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing premises, and the covenants and agreements
set forth herein, and for other good and valuable consideration, the receipt and sufficiency of
which are acknowledged, Lessor and Lessee, intending to be legally bound, hereby agree as follows:
1. Lease of Aircraft. Lessor agrees to lease the Aircraft to Lessee pursuant to the
provisions of FAR Section 91.501(b)(6) and Section 91.501(c)(1) and this Agreement, and to provide
a fully-qualified and credentialed flight crew for all flights to be conducted hereunder during the
Term (as defined in Section 13) hereof. The parties acknowledge and agree that this Agreement did
not result in any way from any direct or indirect advertising, holding out or soliciting on the
part of Lessor or any person purportedly acting on behalf of Lessor. Lessor and Lessee intend that
the lease of the Aircraft effected by this Agreement shall be treated as a “wet lease” pursuant to
which Lessor provides transportation services to Lessee in accordance with FAR Section 91.501(b)(6)
and Section 91.501(c)(1).
2. Payment for Use of Aircraft. Lessee shall pay Lessor the following actual expenses
of each flight conducted under this Agreement (i.e. non-business flights for which reimbursement is
required in accordance with Lessor’s policies), not to exceed the maximum amount legally payable
for such flight under FAR Section 91.501(d)(1)-(10):
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| (a) | fuel, oil, lubricants and other additives; | ||
| (b) | travel expenses of crew, including food, lodging and ground transportation; | ||
| (c) | hangar and tie-down costs away from the Aircraft’s base of operation; | ||
| (d) | additional insurance obtained for the specific flight at the request of Lessee; | ||
| (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) | in-flight telecommunication expenses; | ||
| (i) | passenger ground transportation; and | ||
| (j) | flight planning and weather contract services. |
3. Operational Control of Aircraft. Lessor and Lessee intend and agree that on all
flights conducted under this Agreement, Lessor shall have complete and exclusive operational
control over the Aircraft, its flight crews and maintenance, and complete and exclusive possession,
command and control of the Aircraft. Lessor shall have complete and exclusive responsibility for
scheduling, dispatching and flight following of the Aircraft on all flights conducted under this
Agreement, which responsibility includes the sole and exclusive right over initiating, conducting
and terminating such flights. Lessee shall have no responsibility for scheduling, dispatching or
flight following on any flight conducted under this Agreement, nor any right over initiating,
conducting or terminating any such flight. Nothing in this Agreement is intended or shall be
construed so as to convey to Lessee any operational control over, or possession, command and
control of, the Aircraft, all of which are expressly retained by Lessor.
4. Scheduling.
(a) Lessee will provide Lessor with requests for flight time and proposed flight schedules as
far in advance of any given flight as possible. Lessee or the designated authorized
representative(s) of Lessee shall submit scheduling requests under this Agreement to the designated
authorized representative(s) of Lessor. Requests for flight time shall be in such form (whether
oral or written) mutually convenient to, and agreed upon by, the parties. In addition to proposed
schedules and flight times, Lessee shall upon request provide Lessor with
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the following information for each proposed flight prior to scheduled departure: (i) proposed
departure point; (ii) destination; (iii) date and time of flight; (iv) the number of anticipated
passengers; (v) the nature and extent of luggage to be carried; (vi) the date and time of a return
flight, if any; and (vii) any other pertinent information concerning the proposed flight that
Lessor or the flight crew may request.
(b) Subject to Aircraft and crew availability and to any usage limitations established by
Lessor, Lessor shall use its good faith efforts, consistent with Lessor’s approved policies, in
order to accommodate the needs of Lessee, to avoid conflicts in scheduling, and to enable Lessee to
enjoy the benefits of this Agreement; however, Lessee acknowledges and agrees that notwithstanding
anything in this Agreement to the contrary, (i) Lessor shall have sole and exclusive final
authority over the scheduling of the Aircraft; and (ii) the needs of Lessor for the Aircraft shall
take precedence over Lessee’s rights and Lessor’s obligations under this Agreement.
(c) Although every good faith effort shall be made to avoid its occurrence, any flight
scheduled under this Agreement is subject to cancellation by either party without incurring
liability to the other party. In the event that cancellation is necessary, the canceling party
shall provide the maximum notice practicable.
5. Billing. As soon as practicable after the end of each flight or trip, Lessor shall
provide to Lessee an invoice detailing all amounts payable by Lessee pursuant to Section 2 with
respect to such flight or trip, including such detail supporting all expenses paid or incurred by
Lessor for which reimbursement is sought as Lessee may reasonably request. Lessee shall pay all
amounts due to Lessor under this Section 5 not later than 30 days after receipt of the invoice
therefor.
6. Maintenance of Aircraft. Lessor shall be solely responsible for securing
maintenance, preventive maintenance and inspections of the Aircraft (utilizing an inspection
program listed in FAR Section 91.409(f)), and shall take such requirements into account in
scheduling the Aircraft hereunder.
7. Flight Crew.
(a) Lessor shall employ or engage and pay all salaries, benefits and and/or compensation for a
fully-qualified flight crew with appropriate credentials to conduct each flight undertaken under
this Agreement. Lessor may use temporary flight crewmembers for a flight under this Agreement only
if any such temporary crewmember is FlightSafety (or SimuFlite) trained, is current on the Aircraft
and satisfies all of the requirements and conditions under the insurance coverage for the Aircraft.
All flight crewmembers shall be included on any insurance policies that Lessor is required to
maintain hereunder.
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(b) The qualified flight crew provided by Lessor shall exercise all of its duties and
responsibilities with regard to the safety of each flight conducted hereunder in accordance with
applicable FAR’s. The Aircraft shall be operated under the standards and policies established by
Lessor. Final authority to initiate or terminate each flight, and otherwise to decide all matters
relating to the safety of any given flight or requested flight, shall rest with the
pilot-in-command of that flight. The flight crew may, in its sole discretion, terminate any
flight, refuse to commence any flight, or take any other action that, in the judgment of the
pilot-in-command, is necessitated by considerations of safety. No such termination or refusal to
commence by the pilot-in-command shall create or support any liability for loss, injury, damage or
delay in favor of Lessee or any other person. Lessor shall not be liable to Lessee or any other
person for loss, injury or damage occasioned by the delay or failure to furnish the Aircraft and
flight crew pursuant to this Agreement for any reason.
8. Insurance.
(a) At all times during the Term of this Agreement, Lessor shall maintain at its sole cost and
expense (i) comprehensive aircraft and liability insurance against bodily injury and property
damage claims, including, without limitation, contractual liability, premises damage, personal
property liability, personal injury liability, death and property damage liability, public and
passenger legal liability coverage, in an amount not less than $100,000,000 for each single
occurrence and (ii) hull insurance for the full replacement cost of the aircraft.
(b) Any policies of aircraft and liability insurance carried in accordance with this Section 8
and any policies taken out in substitution or replacement of any such policies (i) shall name
Lessee and his employees, agents, licensees, servants and guests as additional insured; (ii) shall
provide for 30 days written notice to Lessee by such insurer of cancellation, change, non-renewal
or reduction (seven days in the case of war risk and allied perils coverage or such shorter period
as is customarily available in the industry); (iii) shall provide that in respect of the interests
of Lessee in such policies, the insurance shall not be invalidated by any action or inaction of
Lessor regardless of any breach or violation of any warranties, declarations or conditions
contained in such policies by or binding upon Lessor; and (iv) shall permit the use of the
Aircraft by Lessor for compensation or hire to the extent permitted under applicable law. Each
such policy shall be primary insurance, not subject to any co-insurance clause and shall be without
right of contribution from any other insurance.
(c) Lessor shall use reasonable commercial efforts to provide such additional insurance
coverage for specific flights under this Agreement, if any, as Lessee may request in writing.
Lessee also acknowledges that any trips scheduled to the European Union require Lessor to purchase
additional insurance to comply with local regulations. The cost of all additional flight-specific
insurance shall be borne by Lessee as set forth in Section 2(d) hereof.
(d) Each party agrees that it will not do any act or voluntarily suffer or permit any act to
be done whereby any insurance required hereunder shall or may be suspended, impaired or defeated.
In no event shall Lessor suffer or permit the Aircraft to be used or operated
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under this Agreement
without such insurance being fully in effect.
(e) Lessor shall ensure that worker’s compensation insurance with all-states coverage is
provided for the Aircraft’s crew and maintenance personnel.
(f) Lessor shall deliver certificates of insurance to Lessee with respect to the insurance
required or permitted to be provided by it hereunder not later than the first flight of the
Aircraft under this Agreement and upon the renewal date of each policy.
9. Taxes. Lessee shall be responsible for paying, and Lessor shall be responsible for
collecting from Lessee and paying over to the appropriate authorities, all applicable Federal
transportation taxes and sales, use or other excise taxes imposed by any governmental authority in
connection with any use of the Aircraft by Lessee hereunder. Each party shall indemnify the other
party against any and all claims, liabilities, costs and expenses (including attorney’s fees as and
when incurred) arising out of its breach of this undertaking.
10. Lessee’s Representations and Warranties. Lessee represents and warrants that:
(a) He will not use the Aircraft for the purposes of providing transportation of
passengers or cargo in air commerce for compensation or hire or for common carriage.
(b) He shall refrain from incurring any mechanic’s or other liens in connection with
inspection, preventive maintenance, maintenance or storage of the Aircraft, and shall 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) He shall not lien or otherwise encumber or create or place any lien or other
encumbrance of any kind whatsoever, on or against the Aircraft for any reason. He also will ensure
that no liens or encumbrances of any kind whatsoever are created or placed against the Aircraft for
claims against Lessee or by Lessee.
(d) He will abide by and conform to all laws, governmental and airport orders, rules and
regulations, as shall be imposed upon the lessee of an aircraft under a time sharing agreement, and
applicable company policies of Lessor.
11. Lessor’s Representations and Warranties. Lessor represents and warrants that it
will abide by and conform to all such 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 pursuant to this Agreement.
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12. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, LESSOR
HAS MADE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE AIRCRAFT,
INCLUDING ANY WITH RESPECT TO ITS CONDITION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON FOR ANY
INCIDENTIAL, CONSEQUENTIAL OR SPECIAL DAMAGES, HOWEVER ARISING.
13. Term. The term of this Agreement (the “Term”) shall commence on the effective date
hereof and, unless terminated in accordance with the provisions hereof, shall remain in full force
in effect for an initial term ending on December 31, 2007 and thereafter shall automatically renew
for successive one-year terms. Notwithstanding the foregoing, either party shall have the right to
terminate this Agreement for any reason or no reason by written notice given to the other party not
less than 30 days prior to the proposed termination date.
14. Limitation of Liability. Lessee, for himself and on behalf of his agents, guests,
invitees, licensees, servants and employees, covenants and agrees that the insurance described in
Section 8 hereof shall be the sole recourse for any and all liabilities, claims, demands, suits,
causes of action, losses, penalties, fines, expenses or damages, including attorneys fees, court
costs and witness fees attributable to the use, operation or maintenance of the Aircraft pursuant
to this Agreement or performance of or failure to perform any obligation under this Agreement.
15. Relationship of Parties. Lessor is strictly an independent contractor
lessor/provider of transportation services with respect to Lessee. Nothing in this Agreement is
intended, nor shall it be construed so as, to constitute the parties as partners or joint venturers
or principal and agent. All persons furnished by Lessor for the performance of the operations and
activities contemplated by this Agreement shall at all times and for all purposes be considered
Lessor’s employees or agents.
16. Governing Law; Severability. This Agreement shall be governed by and interpreted
in accordance with the laws of the State of New York, without regard to its choice of law rules.
If any provision of this Agreement conflicts with any statute or rule of law of the State of New
York, or is otherwise unenforceable, such provision shall be deemed null and void only the extent
of such conflict or unenforceability, and shall be deemed separate from, and shall not invalidate,
any other provision of this Agreement.
17. Amendment. This Agreement may not be amended, supplemented, modified or
terminated, or any of its terms varied, except by an agreement in writing signed by each of the
parties hereto.
18. Counterparts. This Time Sharing Agreement may be executed in counterparts, each
of which shall, for all purposes, be deemed an original and all such counterparts, taken together,
shall constitute one and the same agreement, even though all parties may not have executed the same
counterpart. Each party may transmit its signature by facsimile,
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and such faxed signature shall
have the same force and effect as an original signature.
19. Successors and Assigns. This Time Sharing Agreement shall be binding upon the
parties hereto, and their respective heirs, executors, administrators, other legal representatives,
successors and assigns, and shall inure to the benefit of the parties hereto, and, except as
otherwise provided herein, to their respective heirs, executors, administrators, other legal
representatives, successors and permitted assigns. Lessee agrees that he shall not directly or
indirectly sublease, assign, transfer, pledge or hypothecate this Agreement or any part hereof
(including any assignment or transfer pursuant to the laws of intestacy) without the prior written
consent of Lessor, which may be given or withheld by Lessor in its sole and absolute discretion.
20. Notices. All notices or other communications delivered or given under this
Agreement shall be in writing and shall be deemed to have been duly given if hand-delivered, sent
by certified or registered mail, return receipt requested, or nationally-utilized overnight
delivery service, or confirmed facsimile transmission, as the case may be. Such notices shall be
addressed to the parties at the addresses set forth above, or to such other address as may be
designated by any party in a writing delivered to the other in the manner set forth in this Section
20. In the case of notices to Lessor, a copy of each such notice shall be sent to Cablevision
Systems Corporation, 0000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000, attention: General Counsel.
Notices sent by certified or registered mail shall be deemed received three business days after
being mailed. All other notices shall be deemed received on the date delivered. Routine
communications may be made by e-mail or fax to the addresses set forth therein.
21. Truth-in-Leasing Compliance. Lessor, on behalf of the Lessee, shall (i) mail a
copy of this Agreement to the Aircraft Registration Branch, Technical Section, of the FAA in
Oklahoma City within 24 hours of its execution; (ii) notify the Farmingdale Flight Standards
District Office at least 48 hours prior to the first flight by Lessor under this Agreement of the
registration number of the Aircraft, and the location of the airport of departure and departure
time of the first flight; and (iii) carry a copy of this Agreement onboard the Aircraft at all
times when the Aircraft is being operated under this Agreement.
22. TRUTH IN LEASING STATEMENT UNDER FAR SECTION 91.23:
(A) LESSOR HEREBY CERTIFIES THAT THE AIRCRAFT HAS BEEN MAINTAINED AND INSPECTED UNDER FAR PART
91 DURING THE 12-MONTH PERIOD PRECEDING THE DATE OF EXECUTION OF THIS AGREEMENT. THE AIRCRAFT WILL
BE MAINTAINED AND INSPECTED IN COMPLIANCE WITH THE MAINTENANCE AND INSPECTION REQUIREMENTS OF FAR
PART 91 FOR ALL OPERATIONS TO BE CONDUCTED UNDER THIS AGREEMENT.
(B) CSC TRANSPORT V, INC., 8000 REPUBLIC AIRPORT, XXXXXX 0, XXXXXXXXXXX, NEW YOUR 11735,
HEREBY CERTIFIES THAT IT IS RESPONSIBLE FOR OPERATIONAL CONTROL OF THE AIRCRAFT FOR ALL OPERATIONS
UNDER THIS AGREEMENT.
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(C) EACH PARTY HEREBY CERTIFIES THAT IT UNDERSTANDS ITS RESPONSIBILITIES FOR COMPLIANCE WITH
APPLICABLE FEDERAL AVIATION REGULATIONS.
(D) THE PARTIES UNDERSTAND THAT AN EXPLANATION OF THE FACTORS BEARING ON OPERATIONAL CONTROL
AND THE PERTINENT FEDERAL AVIATION REGULATIONS CAN BE OBTAINED FROM THE NEAREST FAA FLIGHT
STANDARDS DISTRICT OFFICE.
(signature page follows)
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IN WITNESS WHEREOF, Lessor and Lessee have executed this Time Sharing Agreement this
19th day of June, 2007, effective as of the date first above written.
| LESSOR: | ||||||||
| CSC TRANSPORT V, INC. | ||||||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||||||
| Name: | Xxxxxxx X. Xxxxxx | |||||||
| Title: | Executive Vice President and
Chief Financial Officer |
|||||||
| LESSEE: | ||||||||
| /s/ Xxxx X. Xxxxxx | ||||||||
| Xxxx X. Xxxxxx | ||||||||
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