This Agreement
(this “Agreement”) is made effective as of
November 7, 2005 (the “Effective Date”) by and
between United Dominion Realty Trust, Inc., a Maryland corporation
(“Company”), and Thomas W. Toomey
(“Executive”).
WHEREAS, the
Company has leased a Raytheon Hawker 800XP civil aircraft bearing
United States Registration Number N526XP (to be changed to N837RE)
Serial Number 258526 (the” Aircraft”) pursuant to the
terms of that certain Aircraft Lease, dated as of June 24,
2005 (the “Aircraft Lease”) between the Company and
Wells Fargo Bank Northwest, National Association
(“Lessor”); and
WHEREAS, the
Company has entered into an Aircraft Management Agreement, dated as
of June 1, 2005 between the Company and The Air Group, Inc.,
for The Air Group, Inc. to provide a fully qualified flight crew to
operate the Aircraft; and
WHEREAS, Executive
is Chief Executive Officer and President of the Company;
and
WHEREAS, the
Company agrees to provide the Aircraft to Executive and Executive
desires to lease the Aircraft from the Company from time to time on
the basis defined in Section 91.501(c) (1) of the Federal
Aviation Regulations (“FARs”).
NOW, THEREFORE, in
consideration of the foregoing, and the other promises contained
herein, the parties, intending to be legally bound hereby, agree as
follows:
1. Lease
of Aircraft . The Company agrees to lease the Aircraft to
Executive on a non-exclusive basis from time to time as mutually
agreed between the parties pursuant to the provisions of FAR
91.501(c)(1) and to provide a fully qualified flight crew for all
operations conducted under this Agreement. This Agreement and
Executive’s rights hereunder are also subject to and
expressly subordinate to the terms and conditions of the Aircraft
Management Agreement.
2. Term
and Termination . This Agreement shall be effective on the date
set forth above and, subject to the provisions of Section 13
of this Agreement, shall remain in effect until terminated by
either party upon ten (10) days prior written notice to the
other (the “Term”); provided however this Agreement
shall automatically terminate upon the earlier of: (a) the
date of termination of the Aircraft Lease; or (b) the date
that Executive is no longer employed by the Company.
3.
Executive’s Payment Obligations . Executive shall pay
to the Company for each flight conducted under this Agreement a
lease fee (“Lease Fee”) equal to the actual expenses of
each specific flight as authorized by FAR Part 91.501(d). Such
actual expenses shall include:
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Average weighted cost of fuel, oil,
lubricants, and other additives;
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Travel expenses of the crew,
including food, lodging and ground transportation;
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Hangar and tie-down costs away from
the Aircraft’s base of operation;
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Landing fees, airport taxes and
similar assessments;
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Customs, foreign permits, and
similar fees directly related to the flight;
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In-flight food and
beverages;
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Passenger ground
transportation;
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Trip related maintenance;
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Flight planning and weather contract
services; and
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Repositioning Costs.
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4.
Invoicing for Flights . The Company will pay all expenses
related to the operation of the Aircraft when incurred, and will
provide an invoice to Executive for the Lease Fee determined in
accordance with paragraph 2 above on the last day of the month in
which any flight or flights for the account of Executive have been
made under this Agreement. Executive shall pay the Company the
invoice, together with applicable taxes, within thirty
(30) days of receipt of the invoice.
5.
Taxes . The amounts to be paid by Executive under FAR
Part 91.501(d) are subject to a Federal Excise Tax as imposed
under I.R.C. Section 4261. It is the responsibility of the
Company to collect and remit the tax on the amounts paid. The
Company is responsible for all other state or federal taxes that
may arise under this Agreement.
6.
Requests for Flights . Executive will provide the Company
with requests for flight time and proposed flight schedules as far
in advance of any given flight as possible, and in any case, at
least two (2) business days in advance of Executive’s
planned departure (unless the Company agrees to a shorter notice in
a particular case in its discretion). Requests for flight time
shall be in a form, whether written or oral, mutually convenient
to, and agreed upon by the parties. In addition to the proposed
schedules and flight times, Executive shall provide at least the
following information for each proposed flight prior to scheduled
departure as required by the Company or the Company’s flight
crew:
(a) proposed
departure point;
(c) date
and time of flight;
(d) the
number, name, and relationship to the Executive of anticipated
passengers;
(e) the
nature and extent of luggage and/or cargo to be carried;
(f) the
date and time of return flight, if any; and
(g) any
other information concerning the proposed flight that may be
pertinent or required by the Company or the Company’s flight
crew.
7.
Scheduling Flights . The Company shall have final authority
over the scheduling of the Aircraft, provided, however, that the
Company will use reasonable efforts to accommodate
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Executive’s requests and to avoid
conflicts in scheduling. It is understood that the Company shall
not be obligated to retain or contract for additional flight crew
or maintenance personnel or equipment in order to accommodate
Executive’s schedule requests.
8.
Maintenance of Aircraft . The Company 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, preventative 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
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