EXHIBIT 10.27
TIME SHARING AGREEMENT
The Agreement, made and entered into this 2nd day of December, 2002 by and
between Domino's Pizza LLC, a limited liability company organized and existing
under the laws of the State of Michigan ("Domino's") and Xxxxx X. Xxxxxxx.
WITNESSETH:
WHEREAS, Domino's is the owner of one (1) Dassault-Breguet Falcon 50 aircraft
bearing FAA Registration Number N300A and Manufacturer's Serial Number 64 (the
"Aircraft"); and
WHEREAS User desires use of the Aircraft on a limited basis; and
WHEREAS, Domino's desires to make the Aircraft available to User on a
timesharing basis in accordance with Section 91.501 of the Federal Aviation
Regulations ("FARs").
NOW THEREFORE, in consideration of the mutual covenants set forth herein, the
parties agree as follows:
1. Provision of Aircraft. Domino's agrees to provide the Aircraft to User on a
time sharing basis in accordance with the provisions of 91.501(b)(6),
91.501(c)(1) and 91.501(d) of the FARs for a term of one year. The term shall be
automatically extended for additional one-year terms on the same conditions as
set forth herein unless earlier terminated pursuant to Paragraph 15 below.
2. Reimbursement of Expenses. For each flight conducted under this Agreement,
User shall pay Domino's the lesser of (i) Fifteen Hundred Dollars ($1,500) per
flight hour for the Aircraft, or (ii) the sum of the expenses of operating such
flight to the extent prescribed by FAR 91.501(d), i.e. the sum of the expenses
set forth in subparagraphs (a) - (j) below:
(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 one hundred percent (100 %) of the
expenses listed in subparagraph (a) above.
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3. Invoicing and Payment. All payments to be made to Domino's by User hereunder
shall be paid in the manner set forth in this Paragraph 3. Domino's will pay to
suppliers, employees, contractors and governmental entities all expenses related
to the operation of the Aircraft hereunder in the ordinary course. As to each
flight operated hereunder, Domino's shall provide to User an invoice for the
charges specified in Paragraph 2 of this Agreement (plus domestic or
international air transportation excise taxes, as applicable, imposed by the
Internal Revenue Code or other governmental charges which are collected by
Domino's as operator and remitted to the appropriate authority), such invoice to
be issued by the thirtieth (30th) day of each calendar month for flights
performed the preceding calendar month. User shall pay Domino's the full amount
of such invoice within ten (10) days of the date of the invoice. In the event
Domino's has not received supplier invoices for reimbursable charges listed in
section 2 above relating to such flight prior to such invoicing, Domino's shall
issue supplemental invoice(s) for such charge(s) to User, and User shall pay
such charge(s) within ten (10) days of the date of each supplemental invoice.
4. Flight Requests. User will provide Domino's with flight requests and proposed
flight schedules as far in advance as possible and in any case at least
twenty-four (24) hours in advance of User's desired departure. Flight requests
shall be in a form, whether oral or written, mutually convenient to and agreed
upon by the parties. In addition to proposed schedules and departure times, User
shall provide at least the following information for each proposed flight
reasonably in advance of the desired departure time as required by Domino's or
its flight crew:
(a) departure point;
(b) destination;
(c) date and time of flight;
(d) number and identity 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 to or required by Domino's or its flight crew.
5. Aircraft Scheduling. Domino's shall have final authority over all scheduling
of the Aircraft, provided however that Domino's will use reasonable efforts to
accommodate User's requests.
6. Aircraft Maintenance. As between the parties hereto, Domino's shall be solely
responsible for securing scheduled and unscheduled maintenance, preventive
maintenance and required or otherwise necessary inspections of the Aircraft, and
shall take such requirements into account in scheduling the Aircraft.
Performance of maintenance, preventive maintenance or inspection shall not be
delayed or postponed for the purpose of scheduling the Aircraft unless such
maintenance or inspection can safely be conducted at a later time in compliance
with applicable laws, regulations and requirements, and such delay or
postponement is consistent with the sound discretion of the pilot-in-command.
7. Flight Crew. Domino's shall provide, at its sole expense, qualified flight
crew for all flight operations under this Agreement.
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8. Operational Authority and Control. Domino's shall be responsible for the
physical and technical operation of the Aircraft and the safe performance of all
flights, and shall retain full authority and control including exclusive
operational control and possession of the Aircraft at all times during the term
of this Agreement. In accordance with applicable FARs, the qualified flight crew
provided by Domino's will exercise all required duties and responsibilities in
regard to the safety of each flight conducted hereunder. The pilot-in-command
shall have absolute discretion in all matters concerning the preparation of the
Aircraft for flight and the flight itself, the load carried and its
distribution, the decision whether or not a flight shall be undertaken, the
route to be flown, the place where landings shall be made, and all other matters
relating to operation of the Aircraft. User specifically agrees that the flight
crew shall have final and complete authority to delay or cancel any flight for
any reason or condition which in the sole judgment of the pilot-in-command could
compromise the safety of the flight, and to take any other action which in the
sole 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 to User or any other person for loss, injury, damage or delay. The
parties further agree that Domino's 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 or
breakdown, war, terrorism, civil commotion, strikes or labor disputes, weather
conditions, acts of God, or other circumstances beyond Domino's reasonable
control.
9. Insurance and Limitation of Liability.
(a) Insurance. Domino's will maintain or cause to be maintained in
full force and effect throughout the term of this Agreement aircraft liability
insurance in respect of the Aircraft in an amount at least equal to $100 million
combined single limit for bodily injury to or death of persons (including
passengers) and property damage liability. Domino's shall use best efforts to
procure such additional insurance coverage as User may request naming User as an
additional insured; provided, that the cost of such additional insurance shall
be borne by User pursuant to Paragraph 2(d) hereof.
(b) Limitation of Liability. User agrees that the insurance specified
in paragraph 9(a) shall provide its sole recourse for all claims, losses,
liabilities, obligations, demands, suits, judgments or causes of action,
penalties, fines, costs and expenses of any nature whatsoever, including
attorneys' fees and expenses for or on account of or arising out of, or in any
way connected with the use of the Aircraft by User or its guests, including
injury to or death of any persons, including User and its guests which may
result from or arise out of the use or operation of the Aircraft during the term
of this Agreement ("Claims"). This Section 9 shall survive termination of this
Agreement.
10. Warranties. User warrants that:
(a) It will use the Aircraft under this Agreement for and only for its
own account, including the carriage of its guests, and will not use the Aircraft
for the purpose of providing transportation of passengers or cargo for
compensation or hire;
(b) It will not permit any lien, security interest or other charge or
encumbrance to attach against the Aircraft as a result of its action or
inaction, and shall not convey, mortgage, assign, lease or in any way alienate
the Aircraft or Domino's rights hereunder; and
(c) During the term of this Agreement, it will abide by and conform to
and will cause all passengers to 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 or use of the Aircraft
under Part 91 of the FARs.
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11. Base of Operations. For purposes of this Agreement, the base of operation of
the Aircraft is Willow Run, Ypsilanti, Michigan; provided, that such base may be
changed upon notice from Domino's to User.
12. Notices and Communications. All notices and other communications under this
Agreement shall be in writing (except as permitted in Paragraph 4) and shall be
given (and shall be deemed to have been duly given upon receipt or refusal to
accept receipt) by personal delivery, the next business day if given by
facsimile (with a simultaneous confirmation copy sent by first class mail
properly addressed and postage prepaid) or by a reputable overnight courier
service, addressed as follows:
If to Domino's: Domino's Pizza LLC
30 Xxxxx Xxxxx Xxxxxx Drive
Ann Arbor, Michigan 48106-099
Attn: Xxxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
If to User: Xxxxx X. Xxxxxxx
30 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxx, XX 00000-0000
Phone: 000-000-0000
or to such other person or address as either party shall from time to time
designate by writing to the other party.
13. Further Acts. Domino's and User shall from time to time perform such other
and further acts and execute such other and further instruments as may be
required by law or may be reasonably necessary (i) to carry out the intent and
purpose of this Agreement, and (ii) to establish, maintain and protect the
respective rights and remedies of the other party.
14. Successors and Assigns. Neither this Agreement nor any party's interest
herein shall be assignable to any other party. This Agreement shall inure to the
benefit of and be binding upon the parties hereto, their representatives,
successors and assigns.
15. Termination. Either party may terminate this Agreement for any reason upon
written notice to the other, such termination to become effective ten (10) days
from the date of the notice; provided, that this Agreement may be terminated as
a result of a breach by either party of its obligations under this Agreement on
ten (10) days written notice by the non-breaching party to the breaching party;
and provided further, that this Agreement may be terminated on such shorter
notice as may be required to comply with applicable laws, regulations, the
requirements of any financial institution with a security or other interest in
the Aircraft, insurance requirements or in the event the insurance required
hereunder is not in full force and effect.
16. Governing Law. This Agreement shall be construed under and the legal
relations between the parties shall be governed by the laws of the State of
Michigan.
17. Severability. If any provision of this Agreement is held to be illegal,
invalid or unenforceable, the legality, validity and enforceability of the
remaining provisions shall not be affected or impaired.
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18. Amendment or Modification. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and is not
intended to confer upon any person or entity any rights or remedies hereunder
which are not expressly granted herein. This Agreement may be amended or
modified only in writing duly executed by the parties hereto.
19. TRUTH IN LEASING STATEMENT UNDER SECTION 91.23 OF THE FEDERAL AVIATION
REGULATIONS.
a. DOMINO'S HEREBY CERTIFIES THAT THE AIRCRAFT HAS BEEN INSPECTED AND
MAINTAINED WITHIN THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF
THIS AGREEMENT, OR SUCH SHORTER PERIOD AS DOMINO'S SHALL HAVE HAD
POSSESSION OF THE AIRCRAFT, IN ACCORDANCE WITH THE PROVISIONS OF FAR
PART 91 AND THAT ALL APPLICABLE REQUIREMENTS FOR THE MAINTENANCE AND
INSPECTION THEREUNDER HAVE BEEN MET.
x. XXXXXX'X AGREES, CERTIFIES, AND KNOWINGLY ACKNOWLEDGES THAT WHEN THE
AIRCRAFT IS USED UNDER THIS AGREEMENT, DOMINO'S SHALL BE KNOWN AS,
CONSIDERED, AND SHALL IN FACT BE THE OPERATOR OF THE AIRCRAFT.
Domino's Pizza LLC
30 Xxxxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxx 00000-000
c. THE PARTIES UNDERSTAND THAT AN EXPLANATION OF FACTORS AND PERTINENT
FEDERAL AVIATION REGULATIONS BEARING ON OPERATIONAL CONTROL CAN BE
OBTAINED FROM THE NEAREST FAA FLIGHT STANDARDS DISTRICT OFFICE, GADO, OR
ACDO. DOMINO'S AGREES TO SEND AN EXECUTED COPY OF THIS AGREEMENT FOR AND
ON BEHALF OF BOTH PARTIES TO: FLIGHT STANDARDS TECHNICAL DIVISION, X.X.
XXX 00000, XXXXXXXX XXXX, XXXXXXXX 00000, WITHIN TWENTY-FOUR (24) HOURS
OF ITS EXECUTION, AS PROVIDED BY FAR 91-23(c)(1).
IN WITNESS WHEREOF, the parties hereto have caused the signature of their
authorized representatives to be affixed below on the day and year first above
written. The persons signing below warrant their authority to sign.
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DOMINO'S PIZZA LLC: USER:
By: /s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxxxx Name: Xxxxx X. Xxxxxxx
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Title: EVP and CFO
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