Exhibit 10.18
AIRCRAFT TIME SHARING AGREEMENT
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THIS AIRCRAFT TIME SHARING AGREEMENT is made and entered into
this day of July 1, 2000, by and between STEELCASE INC., a corporation organized
and existing under the laws of the State of Michigan ("TIMESHAROR"), and Xxxxxx
X. Xxx, an individual of Grand Rapids, Michigan, Individually ("TIMESHAREE").
WITNESSETH:
WHEREAS, TIMESHAROR is the owner and operator of one FALCON
2000 aircraft bearing Federal Aviation Administration (FAA) Registration No.
N375SC and Manufacturer's Serial No. 023 (herein referred to as the "Aircraft");
and
WHEREAS, TIMESHAREE desires use of the Aircraft; and
WHEREAS, TIMESHAROR desires to make the Aircraft available to
TIMESHAREE for the above operations on a time sharing basis in accordance with
ss. 91.501 of the Federal Aviation Regulations ("FARs").
NOW THEREFORE, in consideration of the mutual covenants herein
set forth, the parties agree as follows:
1. Provision of Aircraft. TIMESHAROR agrees to provide the
Aircraft to TIMESHAREE on a time sharing basis in accordance with the provisions
of Sections 91.501(b)(6), 91.501(c)(1) and 91.501(d) of the FARs for the period
commencing upon execution of this Agreement and terminating on March 31, 2001
unless earlier terminated pursuant to Paragraph 15 below or by mutual agreement
of the parties.
2. Reimbursement of Expenses. For each flight conducted under
this Agreement, TIMESHAREE shall pay TIMESHAROR 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 subparagraphs (a) above.
3. Invoicing and Payment. All payments to be made to
TIMESHAROR by TIMESHAREE hereunder shall be paid in the manner set forth in this
Paragraph 3. TIMESHAROR will pay to suppliers, employees, contractors and
government entities all expenses related to the operations of the Aircraft
hereunder in the ordinary course. As to each flight operated hereunder,
TIMESHAROR shall provide to TIMESHAREE 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 and collected
by TIMESHAROR), such invoice to be issued within thirty (30) days after the
completion of each such flight. TIMESHAREE shall pay TIMESHAROR the full amount
of such invoice within thirty (30) days of the date of the invoice. In the event
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TIMESHAROR has not received a supplier invoice for reimbursable charges relating
to such flight prior to such invoicing, TIMESHAROR shall issue a supplemental
invoice for such charges to TIMESHAREE within thirty (30) days of the date of
receipt of the supplier invoice and TIMESHAREE shall pay such supplemental
invoice amount within thirty (30) days of the date thereof. All such invoices
shall separately itemize the expenses in items (a) through (j) for each flight
included in that invoice. Delinquent payments to TIMESHAROR by TIMESHAREE
hereunder shall bear interest at the rate of ten percent (10%) per annum from
the due date until the date of payment. TIMESHAREE shall further pay all costs
incurred by TIMESHAROR in collecting any amounts due from TIMESHAREE pursuant to
the provisions of this Paragraph 3 after delinquency, including court costs and
reasonably attorneys' fees.
4. Flight Requests. TIMESHAREE will provide TIMESHAROR 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 TIMESHAREE'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, TIMESHAREE shall provide at least the following information
for each proposed flight reasonably in advance of the desired departure time as
required by TIMESHAROR 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 reasonably required by TIMESHAROR
or its flight crew.
5. Aircraft Scheduling. TIMESHAROR shall have final authority
over all scheduling of the Aircraft, provided, however, that TIMESHAROR will use
reasonable efforts to accommodate TIMESHAREE's requests.
6. Aircraft Maintenance. TIMESHAROR 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 operation of the
Aircraft. Performance of maintenance, preventive maintenance or inspection shall
not be delayed or postponed due to any scheduled operation of the Aircraft
unless such maintenance or inspection can safely be conducted at a later time in
compliance with the sound discretion of the pilot-in-command.
7. Flight Crew. TIMESHAROR shall employ, pay for and provide a
qualified flight crew for all flight operations under this Agreement.
8. Operational Authority and Control. TIMESHAROR 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 TIMESHAROR will exercise all required and/or
appropriate 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.
TIMESHAREE 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 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 TIMESHAREE or any
other person for loss, injury, damages or delay. The parties further
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agree that TIMESHAROR shall not be liable for delay or failure to furnish the
Aircraft and crew pursuant to this Agreement which such failure is caused by
government regulation or authority, mechanical difficulty or breakdown, war,
civil commotion, strikes or labor disputes, weather conditions, acts of God or
other circumstances beyond TIMESHAROR's reasonable control.
9. Insurance.
(a) TIMESHAROR will maintain or cause to be maintained in full
force and effect, throughout the term of this Agreement, aircraft liability
insurance in respect to the Aircraft, naming TIMESHAREE as an additional
insured, in an amount at least equal to $6,000,000 combined single limit for
bodily injury to or death of persons (including passengers) and property damage
liability. Such insurance shall include: (i) provision for thirty (30) days'
prior written notice to TIMESHAREE before any lapse, alteration, termination or
cancellation of insurance shall be effective as to TIMESHAREE; (ii) provisions
whereby the insurer(s) irrevocably and unconditionally waive all rights of
subrogation which they may have or acquire against TIMESHAREE; and (iii) a
cross-liability clause to the effect that such insurance, except for the limits
of liability, shall operate to give TIMESHAREE the same protection as if there
were a separate policy issued to him.
(b) TIMESHAROR shall use its reasonable best efforts to
procure such additional insurance coverage as TIMESHAREE may reasonably request
naming TIMESHAREE as an insured; provided, that the costs of such additional
insurance shall be borne by TIMESHAREE pursuant to Paragraph 2(d) hereof.
10. Warranties. TIMESHAREE warrants that:
(a) he will use the Aircraft under this Agreement for his
personal or business use, including the carriage of his guests and will not use
the Aircraft for purposes of providing transportation of passengers or cargo in
air commerce for compensation or hire as an air carrier or commercial operator;
(b) he will not permit any lien, security interest or other
charge or encumbrance to attach against the Aircraft as a result of his actions
or inactions and shall not convey, mortgage, assign, lease or in any way
alienate the Aircraft or TIMESHAROR's rights hereunder; and
(c) during the terms of this Agreement, he will abide by and
conform to all laws, orders, rules and regulations as are, from time to time, in
effect and which relate in any way to the operation or use of the Aircraft under
a time sharing arrangement.
11. Based of Operations. For purposes of this Agreement, the
base of operation of the Aircraft is Grand Rapids, Xxxxxx X. Xxxx International
Airport; provided, that such base may be changed permanently upon notice from
TIMESHAROR to TIMESHAREE.
12. Notices and Communications. All notices, requests, demands
and other communications required or desired to be given hereunder shall be in
writing (except as permitted pursuant to Paragraph 4) and shall be deemed to be
given: (i) if personally
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delivered, upon such delivery; (ii) if mailed by certified mail, return receipt
requested, postage pre-paid, addressed as follows (to the extent applicable for
mailing), upon the earlier to occur of actual receipt, refusal to accept receipt
or three (e) days after such mailing; (iii) if sent by regularly scheduled
overnight delivery carrier with delivery fees either prepaid or an arrangement,
satisfactory with such carrier, made for the payment of such fees, addressed (to
the extent applicable for overnight delivery) as follows, upon the earlier to
occur of actual receipt or the next "Business Day" (as hereafter defined) after
being sent by such delivery; or (iv) upon actual receipt when sent by fax,
mailgram, telegram or telex:
If to TIMESHAROR:
STEELCASE INC. CORPORATE AVIATION
0000 00xx Xx.
Xxxxx Xxxxxx, XX 00000
Copy: Legal Services
X.X. Xxx 0000
Xxxxx Xxxxxx, XX 00000
If to TIMESHAREE:
Xxxxxx X. Xxx
Notices given by other means shall be deemed to be given only upon actual
receipt. Addresses may be changed by written notice given as provided herein and
signed by the party giving the notice.
13. Further Acts. TIMESHAROR and TIMESHAREE 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 to: (i)
carry out the intent and purpose of this Agreement; and (ii) establish, maintain
and protect the respective rights and remedies of the other party.
14. Successors and Assigns. Neither this Agreement nor either
party's interest herein shall be assignable by either party without the written
consent of the other party thereto. This Agreement shall inure to the benefit of
and be binding upon the parties hereto, their heirs, representatives and
successors.
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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 on such shorter notice as may be required to comply
with applicable laws, regulations or insurance requirements.
16. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Michigan without regard to
any conflicts of law provisions or principles to the contrary. The parties
hereby consent and agree to the non-exclusive jurisdiction and to the venue of
any state or federal court for any geographic area in any proceedings hereunder
and hereby waive any objection to any such proceedings based on improper venue
or forum non conveniens. The parties hereby further consent and agree to the
exercise of such personal jurisdiction over them by such courts with respect to
any such proceedings, waive any objection to the assertion or exercise of such
jurisdiction and consent to process being served in any such proceedings in the
manner provided for the giving of notices in Paragraph 12.
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.
18. Amendment or Modification. This Agreement constitutes the
entire agreement between the parties with respect to the subject matter hereof
and its 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 supplemented only by a writing signed by the party against whom such
amendment or supplement is sought to be enforced.
19. TRUTH IN LEASING STATEMENT PURSUANT TO SECTION 91.23 OF
THE FEDERAL AVIATION REGULATIONS.
(a) TIMESHAROR CERTIFIES THAT THE AIRCRAFT HAS BEEN INSPECTED
AND MAINTAINED WITHIN THE 12-MONTH PERIOD PRECEDING THE DATE OF THIS AGREEMENT
IN ACCORDANCE WITH THE PROVISIONS OF PART 91 OF THE FEDERAL AVIATION REGULATIONS
AND THAT ALL APPLICABLE REQUIREMENTS FOR THE AIRCRAFT'S MAINTENANCE AND
INSPECTION THEREUNDER HAVE BEEN MET AND ARE VALID FOR THE OPERATIONS TO BE
CONDUCTED UNDER THIS AGREEMENT.
(b) TIMESHAROR, WHOSE ADDRESS APPEARS IN PARAGRAPH 12 ABOVE
AND WHOSE AUTHORIZED SIGNATURE APPEARS BELOW, AGREES, CERTIFIES AND ACKNOWLEDGES
THAT WHENEVER THE AIRCRAFT IS OPERATED UNDER THIS AGREEMENT, TIMESHAROR SHALL BE
KNOWN AS, CONSIDERED AND SHALL IN FACT BE THE OPERATOR OF THE AIRCRAFT AND THAT
TIMESHAROR UNDERSTANDS ITS RESPONSIBILITIES FOR COMPLIANCE WITH APPLICABLE
FEDERAL AVIATION REGULATIONS.
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TIMESHAROR
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Director of Corporate Aviation
(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. TIMESHAROR
FURTHER CERTIFIES THAT IT WILL SEND, OR CAUSE TO BE SENT, A TRUE COPY OF THIS
AGREEMENT TO, FEDERAL AVIATION ADMINISTRATION, AIRCRAFT REGISTRATIONS BRANCH,
ATTN. TECHNICAL SECTION, X.X. XXX 00000, XXXXXXXX XXXX, XXXXXXXX 00000, WITHIN
24 HOURS AFTER ITS EXECUTION, AS REQUIRED BY SECTION 91.23(c)(1) OF THE FEDERAL
AVIATION REGULATIONS.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed on the date first above written. The persons
signing below warrant their authority to sign.
TIMESHAROR TIMESHAREE:
By: /s/ Xxxxx Xxxxx /s/ Xxxxxx X. Xxx
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Name: Xxxxx Xxxxx
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Title: Director of Aviation
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