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Exhibit
10.4
LEASE
AGREEMENT
THIS LEASE AGREEMENT (the
“Agreement”) is made and entered into effective the 2nd
day of August, 2007, by and between M.D.C. HOLDINGS, INC., a
corporation organized and existing under the laws of the State of
Delaware with its principal place of business at 4350 South Monaco
Street, Suite 500, Denver, CO 80237 (“Company”),
RICHMOND AMERICAN HOMES OF COLORADO, INC. , a corporation
organized and existing under the laws of the State of Delaware with
an address of c/o Paris G. Reece, III, 4350 South Monaco Street,
Suite 500, Denver, CO 80237 (“Lessor”), and Larry A.
Mizel, an individual, with an address of 4350 South Monaco Street,
Suite 500, Denver, CO 80237 (“Lessee”).
WITNESSETH, that
WHEREAS, M.D.C. Holdings,
Inc. (“Company”) is the owner of the aircraft as
further described in Exhibit A attached hereto (the
“Aircraft”);
WHEREAS, Lessor leases the
Aircraft from the Company;
WHEREAS, Lessor desires to
more efficiently utilize the Aircraft when they are not required by
Lessor in the conduct of its business;
WHEREAS, The board of
directors of the Company has by formal resolutions determined that
for the safety, security, convenience, comfort and efficiency of
the Chief Executive Officer of the Company, it is in the best
interests of the Company for its Chief Executive Officer to utilize
the Aircraft for non-Company business purposes, as well as Company
business, when the Aircraft are not being utilized in the ordinary
course of its business;
WHEREAS, Lessor desires to
lease said Aircraft to Lessee and Lessee desires to lease said
Aircraft from Lessor pursuant to Section 91.501(c)(1) of the
Federal Aviation Regulations (the “FARs”);
and
WHEREAS, the Company consents
to this Agreement providing its existing lease with the Lessor is
not affected or impaired in any respect.
NOW THEREFORE, Lessor and
Lessee 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. Lessor agrees to lease the
Aircraft to Lessee pursuant to the provisions of FAR 91.501(c)(1)
and to provide a fully qualified flight crew for all operations on
a non-exclusive 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. Lessee shall pay Lessor
for each flight conducted under this Agreement an amount equal to
the maximum actual expenses incurred for each specific flight as
permitted and authorized by FAR Part 91.501(d), including the
expense of any “deadhead” flights flown for the benefit
of Lessee (the “Incremental Expenses”).
1
The Incremental Expenses
permitted and authorized by FAR Part 91.501(d) are:
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(a) |
Fuel, oil, lubricants and other additives. |
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(b) |
Travel expenses of the crew, including food, lodging and ground
transportation. |
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(c) |
Hangar and tie down costs away from the Aircraft’s base
of operations. |
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(d) |
Insurance obtained for the specific flight. |
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(e) |
Landing fees, airport taxes and similar
assessments. |
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(f) |
Customs, foreign permit, and similar fees directly related to
the flight. |
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(g) |
In flight food and beverages. |
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(h) |
Passenger ground transportation. |
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(i) |
Flight planning and weather contract services. |
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(j) |
An additional charge equal to 100% of the expenses listed in
subparagraph (a) of this paragraph. |
3. Lessor shall pay the
Incremental Expenses related to the operation of the Aircraft
pursuant to this Agreement monthly, as incurred. The Company shall
provide the Lessee with an invoice on or before the fifteenth (15
th
) day of each month
following a flight under this Agreement. Lessee shall pay the
invoice on or before ten (10) days of receipt. Lessee shall
include with each payment any federal transportation excise tax due
with respect to such payment, and Lessor shall be responsible for
collecting, reporting and remitting such excise tax to the U.S.
Internal Revenue Service.
4. Lessor shall be
responsible for all expenses related to the ownership, maintenance
and operation of the Aircraft and shall provide Lessee with a
qualified flight crew for each flight undertaken under this
Agreement.
5. Lessor 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 mainten
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