Exhibit 10.2
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AIRCRAFT TIME SHARING AGREEMENT
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THIS TIME SHARING AGREEMENT (the "Agreement") is made and entered into as
of the 2nd day of June, 1998, by and between HOLLYWOOD PARK, INC., a Delaware
corporation ("Timesharer") and R.D. HUBBARD ENTERPRISES, INC., a Texas
corporation ("Owner").
SECTION I
TIME SHARING AIRCRAFT
For and in consideration of the expenses to be paid hereunder and the
covenants and agreements herein contained to be kept and performed, Owner does
hereby consent to time share with Timesharer for Timesharer's use the following
described Aircraft with equipment, accessories and flight crew (the "Aircraft"):
Canadair Challenger 601-3A, Year 1987, Serial No. 5014, bearing FAA No.
N888DH and
Two (2) General Electric CF34-3A Engines, Serial Nos. 350273 & 350282
The home airport of the Aircraft shall be Portland International Airport,
Portland, Oregon, or such other airport or airports as the Owner shall determine
from time to time.
SECTION II
TERM
The term of this Agreement shall commence on June 2, 1998 and expire on
December 31, 1999. Thereafter, this Agreement shall automatically renew for
additional terms of one (1) month each unless written notice of termination is
given by one party to the other at least two (2) weeks prior to the commencement
of a renewal term.
SECTION III
EXPENSES
During the term of this Agreement, Timesharer agrees to reimburse Owner for
the following expenses incurred as a result of Timesharer's use of the Aircraft:
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 operations;
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;
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h. Passenger ground transportation;
i. Flight planning and weather contract services; and
j. An additional charge equal to 100% of the expenses listed is
subparagraph a. of this section.
By the thirtieth (30th) day of each month, Owner shall provide
Timesharer with an invoice setting forth the amount owed by Timesharer for
the previous month. Timesharer shall pay such amount within fifteen (15)
days of receipt of such invoice.
Said payments shall be paid at the address of the Owner provided to
Timesharer, or at such other place as Owner may designate. Timesharer
agrees to reimburse Owner for all costs and expenses, including court costs
and reasonable attorney's fees, incurred by Owner in the enforcement of its
rights and remedies under this Agreement.
SECTION IV
TITLE
The registration of, and title to, the Aircraft shall remain in the
name of Owner, and the Aircraft shall at all times during the term of this
Agreement, or any extension hereof, bear United States registration
markings. All responsibility and obligations in regard to maintaining the
Aircraft as above owned, registered, and marked shall be borne by Owner.
This Agreement does not confer on Timesharer any right, title or interest
whatsoever, legal or equitable, in the Aircraft, or to the proceeds of the
sale of the Aircraft.
SECTION V
RESTRICTIONS ON USE
During Timesharer's use of the Aircraft, Timesharer agrees to use the
Aircraft only for the purposes, in the manner and within the geographical
limits set forth in applicable insurance policies, to abide by and conform
to, and cause others to abide by and conform to, all laws, ordinances,
orders, rules and regulations, national, state, municipal or otherwise, now
existing or hereinafter enacted, controlling or in any way affecting the
operation, use or occupancy of the Aircraft or the use of any airport
premises by the Aircraft. Timesharer shall be solely responsible for any
fines, penalties or forfeitures occasioned by Aircraft. If such fines or
penalties are imposed on Owner and paid by Owner, Timesharer shall
reimburse Owner for the amount thereof within 15 days of receipt by
Timesharer of written demand from Lender.
SECTION VI
ASSIGNMENT
Timesharer agrees to keep safe and use carefully the Aircraft, and not
to sell or attempt to sell, assign or dispose of the Aircraft, or any
interest therein, or any part, or necessary equipment or to permit any
charge, lien or encumbrance of any nature upon the Aircraft or any part
thereof, or land or rent the same (other than to or at the direction of
Owner), or change the home airport from that designated therein, or remove
the Aircraft from the Continental United States for a period exceeding
thirty (30) days without the prior written consent of Owner. Timesharer
agrees that Owner reserves the power to assign its rights under this
Agreement.
SECTION VII
MAINTENANCE AND REPAIR
Owner agrees to retain the responsibility for the repair and
maintenance of the Aircraft so as to keep it in good safe operating
condition.
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Owner shall perform at its own expense all inspections, repairs,
replacements, modifications, maintenance, and overhaul work as necessary
and in accordance with the standards set by the Federal Aviation
Administration regulations and requirements or those of any other
governmental authority. The Owner's flight crew shall maintain all log
books and records pertaining to Timesharer's personal use and operation of
the Aircraft in accordance with the rules and regulations of the Federal
Aviation Administration. Such records shall be the property of the Owner.
SECTION VIII
ALTERATIONS
Timesharer shall not have the right to alter, modify, or make
additions or improvements to the Aircraft.
SECTION IX
INDEMNIFICATION OF OWNER
Timesharer agrees to be responsible and liable to Owner for, and to
indemnify Owner against, loss of any and all damage during Timesharer's use
of the Aircraft during the term of this Agreement or until redelivery of
the Aircraft to Owner, and to indemnify and save Owner harmless from and
against all claims, costs, expenses, damages and liabilities, including
personal injury, death or property damage claims arising or in any manner
occasioned by Timesharer's custody or operation of the Aircraft for use,
including consequential damages.
Timesharer shall never, at any time during the term of this Agreement,
for any purpose whatsoever, be or become an agent for Owner, and Owner
shall not be responsible for the acts or omissions of Timesharer or its
agents.
SECTION X
RISK OF LOSS
Owner agrees to maintain general insurance covering the Aircraft,
together with all of its equipment and accessories; however, pursuant to
Section III of this Agreement, Timesharer agrees to either (i) reimburse
Owner for any insurance premiums attributable to Timesharer's use and
operation of the Aircraft; or (ii) obtain adequate and necessary insurance
coverage, including but not limited to loss or damage from crash, fire,
windstorm, collision, or other casualty, hull damage and liability for
personal injuries, death or property damages, arising or in any manner
occasioned by the acts or omission of Timesharer while in custody or
operation of the Aircraft for personal use. If Timesharer is required to
obtain such insurance, then losses under the hull damage policies will be
made payable to Owner and Timesharer shall deliver said policies, or
evidence of said insurance, to Owner with premium receipts therefor.
Timesharer shall immediately notify Owner of each accident involving
the Aircraft while it is in timesharer's possession, which notification
shall specify the time, place, and nature of the accident or damage, the
names and addresses of parties involved, persons injured, witnesses, and
owners of properties damaged, and such other information as may be known.
Timesharer shall advise Owner of all correspondence, papers, notices, and
documents whatsoever received by timesharer in connection with any claim or
demand involving or relating to the Aircraft or its operation, and shall
aid in any investigations instituted by Owner and in recovery of damages
from third persons liable for same.
Timesharer hereby appoints Owner as Timesharer's attorney-in-fact to
make proof of loss, and claim for, receive payment of and execute or
endorse all documents, checks for drafts for hull damage or return premium
under said insurance policies.
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SECTION XI
INSPECTION BY OWNER
During Timesharer's use, Timesharer agrees to permit Owner to inspect
the Aircraft at any reasonable time, either on the land or aloft, and to
furnish any information in respect to Timesharer's use of the Aircraft that
Owner may reasonably request, and to execute and deliver to Owner any
additional or supplemental instruments or documents as may be required by
Owner in connection with Timesharer's personal use of the Aircraft.
SECTION XII
RETURN TO OWNER
Upon completion of each time shared use of the Aircraft, Timesharer
agrees to return the Aircraft to Owner at such place as may be designated
by Owner, in the same operating order, repair, condition and appearance as
when received, excepting only for (i) reasonable wear and tear; (ii) damage
attributable to acts or omissions of the Timesharer covered by collectible
insurance as provided for in Section X; and (iii) damage attributable to
acts or omissions of Owner.
SECTION XIII
REMEDIES
In the event Timesharer is required to obtain insurance pursuant to
Section X of this Agreement, and Timesharer fails to pay all costs and
expenses to procure and maintain such insurance, Owner may, at its option
and without liability, terminate this Agreement.
Owner's rights and remedies with respect to any of the terms and
conditions of this Agreement shall be cumulative and not exclusive, and
shall be in addition to all other rights and remedies in its favor.
Owner's failure to enforce strictly any provisions of this Agreement shall
not be construed as a waiver thereof or as excusing Timesharer from future
performance.
SECTION XIV
MODIFICATION OF AGREEMENT
This Agreement constitutes the entire agreement between the parties.
Any change or modification to this Agreement must be in writing and signed
by the Owner and Timesharer. The validity of any portion of this Agreement
shall not affect the remaining valid portions. All notices shall be
binding upon the parties if sent to the address provided pursuant to this
Agreement unless a subsequent address shall have been furnished, by
certified mail, by one party to the other.
SECTION XV
GOVERNING LAW
This Agreement shall be interpreted in accordance with, and
performance shall be governed by, the law of the State of Oregon.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
OWNER: TIMESHARER:
R.D. HUBBARD ENTERPRISES, INC. HOLLYWOOD PARK, INC.
/s/ Edward A. Burger /s/ G. Michael Finnigan
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By: By:
Title: Vice President of Finance Title: President / Chief Financial Officer
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