Exhibit 10.15
TIME SHARING AGREEMENT
THIS TIME SHARING AGREEMENT (the "Agreement"), is made and entered
into this 18th day of April, 2007, by and between APEX OIL COMPANY, INC., a
Missouri corporation ("Operator"), and FUTUREFUEL CORP., a Delaware
corporation ("User").
WHEREAS, Operator owns or leases the aircraft identified in Exhibit A
hereto (each, an "Aircraft," or collectively, the "Aircraft");
WHEREAS, Operator employs a fully qualified flight crew to operate
the Aircraft; and
WHEREAS, Operator desires to lease said Aircraft with flight crew to
User and User desires to lease said Aircraft and flight crew from Operator on
a time sharing basis pursuant to Section 91.501(c)(1) of the Federal Aviation
Regulations (the "FARs").
NOW THEREFORE, Operator and User declaring their intention to enter
into and be bound by this Agreement, and for the good and valuable
consideration set forth below, hereby covenant and agree as follows:
1. Operator agrees to lease the Aircraft to User pursuant to the
provisions of FAR 91.501(c)(1) and to provide a fully qualified flight crew
for all operations on a non-continuous basis commencing on the first date set
forth hereinabove and continuing unless and until terminated. Either party may
terminate this Agreement by giving thirty (30) days written notice to the
other party.
2. User shall pay Operator for each flight conducted under this
Agreement the actual expenses of each specific flight, as authorized by FAR
Part 91.501(d), including the actual expense of any "deadhead" flights made
for User, as authorized by FAR Part 91.501(d). The expenses authorized by FAR
Part 91.501(d) include:
(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.
(h) Passenger ground transportation.
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(i) Flight planning and weather contract services.
(j) An additional charge equal to the product of (i) the volume
of fuel (in gallons) charged to User under subparagraph 2(a)
above, multiplied by (ii) the price per gallon for such fuel
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at the Aircraft's base of operation at St. Louis Regional
Airport, Bethalto, Illinois; provided, however, that such
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additional charge shall not exceed one hundred percent
(100%) of the expenses listed in subparagraph 2(a).
3. Operator will pay all expenses related to the operation of the
Aircraft when incurred, and will provide an invoice and bill User for the
expenses enumerated in paragraph 2 above on the last day of the month in which
any flight or flights for the account of User occur. User shall pay Operator
for said expenses within thirty (30) days of receipt of the invoice and bill
therefor.
User shall include with each payment any federal transportation
excise tax due with respect to such payment, and Operator shall be responsible
for collecting, reporting and remitting such tax to the U.S. Internal Revenue
Service.
4. User will provide Operator with requests for flight time and
proposed flight schedules as far in advance of any given flight as possible.
Requests for flight time and proposed flight schedules shall be made in
compliance with Operator's scheduling procedures. In addition to proposed
schedules and flight times, User shall provide at least the following
information for each proposed flight at some time prior to scheduled departure
as required by Operator or Operator's flight crew.
(a) Proposed departure point;
(b) Destination;
(c) Date and time of flight;
(d) The number of anticipated passengers;
(e) The nature and extent of unusual luggage and/or cargo to be
carried;
(f) The date and time of a return flight, if any; and
(g) Any other information concerning the proposed flight that
may be pertinent or required by Operator or Operator's
flight crew.
5. Operator shall pay all expenses related to the ownership and
operation of the Aircraft and shall employ, pay for and provide to User a
qualified flight crew for each flight undertaken under this Agreement.
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6. Operator shall be solely responsible for securing maintenance,
preventive maintenance and required or otherwise necessary inspections on the
Aircraft, and shall take such requirements into account in scheduling the
Aircraft. No period of maintenance, preventive maintenance or inspection shall
be delayed or postponed for the purpose of scheduling the Aircraft, unless
said maintenance or inspection can be safely conducted at a later time in
compliance with all applicable laws and regulations, and within the sound
discretion of the pilot in command. The pilot in command shall have final and
complete authority to cancel any flight for any reason or condition which in
his judgment would compromise the safety of the flight.
7. In accordance with applicable FARs, the flight crew will exercise
all of its duties and responsibilities in regard to the safety of each flight
conducted hereunder. User specifically agrees that the pilot in command, in
his sole discretion, may terminate any flight, refuse to commence any flight,
or take other action which in the considered judgment of the pilot in command
is necessitated by considerations of safety. The parties agree that Operator
shall not be liable for delay or failure to furnish the Aircraft and flight
crew pursuant to this Agreement when such failure is caused by government
regulation or authority, mechanical difficulty, war, civil commotion, strikes
or labor disputes, weather conditions or acts of God.
8. Operator will provide such additional insurance coverage as User
shall request or require; provided, however, that the cost of such additional
insurance shall be borne by User as set forth in paragraph 2(d) hereof. A copy
of Operator's Certificate of Insurance and/or aircraft insurance policy will
be made available to User at User's request.
9. Each party hereto agrees to indemnify and hold harmless the other
against all losses, including costs, attorneys fees and expenses by reason of
claims for injury to or death of persons and loss of or damage to property
arising out of or in any manner connected with the performance of such party's
responsibilities under this Agreement or any breach by such party of any
covenant or warranty made herein. Operator and User agree that in the event
either party shall be liable to the other for any reason relating to this
Agreement, that under no circumstances shall the damaged party be entitled to
any special or consequential damages, including but not limited to damages for
lost profits.
10. For purposes of this Agreement, the permanent base of operation
of the Aircraft shall be at St. Louis Regional Airport, Bethalto, Illinois.
11. User warrants that:
(a) It will use the Aircraft for and on account of its own
business only, and will not use the Aircraft for the
purposes of providing transportation for passengers or cargo
in air commerce for compensation or hire; and
(b) During the term of this Agreement, 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 its operation and use of the
Aircraft as a time sharing user.
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12. Except as otherwise provided in this Agreement, all notices,
consents, requests, demands and other communications hereunder are to be in
writing and are deemed to have been duly given or made: (i) when delivered in
person; (ii) two (2) days after deposited in the United States mail, first
class postage prepaid; (iii) in the case of overnight courier services, one
business day after delivery to the overnight courier service with payment
provided for; or (iv) in the case of telecopy or fax, when sent, verification
received; in each case addressed as follows:
If to Operator: Apex Oil Company, Inc.
8235 Forsyth Blvd., Suite 400
St. Louis, Missouri 63105
Attn: Tim Cooper
Fax: 314-889-0211
If to User: FutureFuel Corp.
8235 Forsyth Blvd., Suite 400
St. Louis, MO 63105
Attn: Douglas D. Hommert
Fax: 314-889-9603
13. This Agreement shall not be modified or amended except by an
instrument in writing signed by authorized representatives of both parties.
14. Neither this Agreement nor either 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 heirs, representatives and
successors.
15. Nothing herein shall be construed to create a partnership, joint
venture, franchise, employer-employee relationship or to create any
relationship of principal and agent.
16. This Agreement shall be governed by and construed in accordance
with the laws of the State of Illinois.
17. This Agreement may be executed by the parties in counterparts and
exchanged via facsimile transmission, and each party agrees following such
exchange to forward an executed original of the Agreement to the other by mail
or by courier.
18. TRUTH IN LEASING STATEMENT UNDER SECTION 91.23 (FORMERLY 91.54)
OF THE FEDERAL AVIATION REGULATIONS.
(A) APEX OIL COMPANY, INC. HEREBY CERTIFIES THAT THE
AIRCRAFT HAVE BEEN INSPECTED AND MAINTAINED WITHIN THE 12
MONTH PERIOD PRECEDING THE DATE OF THIS AGREEMENT IN
ACCORDANCE WITH THE PROVISIONS OF FAR PART 91 AND ALL
APPLICABLE REQUIREMENTS FOR THE MAINTENANCE AND INSPECTION
THEREUNDER HAVE BEEN MET.
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(B) APEX OIL COMPANY, INC. AGREES, CERTIFIES AND KNOWINGLY
ACKNOWLEDGES THAT WHEN EACH AIRCRAFT IS OPERATED UNDER THIS
AGREEMENT, IT SHALL BE KNOWN AS, CONSIDERED, AND SHALL IN
FACT BE THE OPERATOR OF THE AIRCRAFT.
(C) THE PARTIES UNDERSTAND THAT AN EXPLANATION OF FACTORS
AND PERTINENT FEDERAL AVIATION REGULATIONS BEARING ON
OPERATIONAL CONTROL CAN BE OBTAINED FROM THE LOCAL FLIGHT
STANDARDS DISTRICT OFFICE. OPERATOR FURTHER CERTIFIES THAT
IT WILL SEND A TRUE COPY OF THIS EXECUTED AGREEMENT TO:
FLIGHT STANDARDS TECHNICAL DIVISION, P. O. BOX 25724,
OKLAHOMA CITY, OKLAHOMA, 73125, WITHIN 24 HOURS OF ITS
EXECUTION, AS PROVIDED BY FAR 91.23(c)(1).
IN WITNESS WHEREOF, the parties hereto have caused the signatures 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.
OPERATOR: USER:
APEX OIL COMPANY, INC. FUTUREFUEL CORP.
By: /s/ Edwin L. Wahl By: /s/ Douglas D. Hommert
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Edwin L. Wahl, President Douglas D. Hommert, Executive V.P.
A copy of this Agreement must be carried in the Aircraft while being
operated hereunder.
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EXHIBIT A
AIRCRAFT SCHEDULE
1. Gulfstream Aerospace G-IV, serial number 1111, N511PA
2. Gulfstream G-IISP (Grumman American Aviation Corp. G-1159), serial
number 206, N900BF
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EXHIBIT B
INSTRUCTIONS FOR COMPLIANCE WITH
TRUTH IN LEASING REQUIREMENTS
1. Mail a copy of the agreement to the following address via certified
mail, return receipt requested, immediately upon execution of the
agreement (14 C.F.R. 91.23 requires that the copy be sent within
twenty-four hours after it is signed):
Federal Aviation Administration
Aircraft Registration Branch
ATTN: Technical Section
P.O. Box 25724
Oklahoma City, Oklahoma 73125
2. Telephone or fax the nearest Flight Standards District Office at
least forty-eight hours prior to the first flight made under this
agreement.
3. Carry a copy of the agreement in the Aircraft at all times when the
Aircraft is being operated under the agreement.
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