AMENDED AND RESTATED AIRCRAFT TIME SHARING AGREEMENTAircraft Lease Agreement |
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Exhibit 10.6
AMENDED AND RESTATED AIRCRAFT TIME SHARING AGREEMENT
THIS AMENDED AND RESTATED TIME SHARING AGREEMENT (this “Agreement”) is entered into on March 27, 2006 by Cephalon, Inc. (“Owner”), a Delaware corporation, with principal offices at 41 Moores Road, Frazer, PA 19355, and Frank Baldino, Jr., Ph.D. (“Lessee”).
BACKGROUND:
A.
Owner is the registered owner of certain
civil aircraft as described in the Specification Sheet attached hereto and made
a part hereof, as Exhibit A (the “Aircraft”).
B.
Owner employs a fully qualified flight
crew to operate the Aircraft;
C.
From time to time, Lessee may desire to
lease the Aircraft and flight crew from owner for Lessee’s personal
travel at Lessee’s discretion on a time sharing basis as defined in
Section 91.501(c)(1) of the Federal Aviation Regulations (“FAR”).
D.
This Agreement sets forth the
understanding of the Parties as to the terms under which Owner will provide
Lessee with the use, on a periodic basis, of the Aircraft; and
E.
The use of the Aircraft will at all times
be pursuant to and in full compliance with the requirements of FAR Part 91 and
particularly, Sections 91.501(b)(6), 91.501(c)(1), and 91.501(d).
F.
The Owner and Lessee entered that certain
Time Sharing Agreement dated January 23, 2006 and now intend to amend and restate
that agreement in its entirety.
NOW, THEREFORE, Owner and Lessee agree as follows:
1.
Subject to the terms and conditions of
this Agreement, Owner agrees to lease the Aircraft to Lessee at Lessee’s
discretion from time-to-time on a non-exclusive basis and on an “as
needed and as available basis” pursuant to the provisions of FAR Section
91.501(b)(6), 91.501(c)(1), and 91.501(d) and to provide a fully qualified
flight crew for all operations for flights scheduled in accordance with the
terms of this Agreement.
2.
This Agreement shall remain in effect
unless and until terminated by either party for any reason upon written notice
to the other, such termination to become effective ten (10) days from the date
of the notice or upon the earlier of (a) the
termination of this Agreement by consent of Owner and Lessee, (b) the date of Lessee’s termination of employment with Owner and (c) the date of Lessee’s death.
3.
Lessee may use the Aircraft from
time-to-time, subject to the prior permission and approval of Owner, for any
and all purposes allowed by FAR Section 91.501(b)(6). Lessee’s use shall
include the use of the Aircraft by guests of the Company if they accompany him
or her on the flight. Lessee shall not accept any compensation whatsoever for
any flight conducted under this Agreement.
4.
Lessee shall pay Owner for each flight
conducted under this Agreement the actual expenses of each specific flight as
authorized by FAR Section 91.501(d) as in effect from time to time. On the date
of this Agreement these expenses include and are limited to:
(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 clause (a) above.
5.
Owner will pay all expenses related to
the operation of the Aircraft when incurred and will provide monthly invoices
to Lessee for the expenses enumerated in Section 4 hereof. Lessee shall pay the
amounts invoiced within fifteen (15) days after receipt of the related invoice.
6.
The Parties acknowledge that with the
exception of the expenses for in-flight food and beverages and passenger ground
transportation, the payment of expenses set forth in Section 4 hereof are
subject to the federal excise tax imposed under Section
4261 of the Internal Revenue Code. Lessee shall pay Owner for such expenses and the amount of such taxes within fifteen (15) days of receipt of the applicable invoice. Owner agrees to collect and remit to the Internal Revenue Service for the benefit of Lessee all such federal excise taxes.
7.
In the event that Lessee desires to use
the Aircraft pursuant to this Agreement, Lessee will so notify Owner and will
provide Owner with requests for flight time and proposed flight schedules as
far as possible in advance of any given flight. Requests for flight time shall
be in a form, whether oral or written, mutually convenient to and agreed upon
by Owner and Lessee. In addition to proposed schedules and flight times, Lessee
shall provide at least the following information for each proposed flight at
some time prior to scheduled departure as required by Owner or Owner’s
flight crew:
(a)
departure point;
(b)
destinations;
(c)
date and time of flight;
(d)
the number and identity of any
anticipated passengers;
(e)
the nature and extent of 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 Owner or Owner’s flight
crew.
8.
Owner shall have sole and exclusive
authority over the scheduling of the Aircraft, including which aircraft is used
for any particular flight.
9.
Owner 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 flights of the Aircraft. No period of maintenance,
preventive maintenance, or inspection shall be delayed or postponed for the
purpose of scheduling the Aircraft, unless such 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 that in his or her judgment would compromise the
safety of the flight.
10. Owner 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. Owner sh
