AIRCRAFT REIMBURSEMENT AGREEMENT
This Agreement is dated January 16, 1995, effective as of April 14,
1994, between Xxxxxxx Restaurants Operating Company, L.P., a Delaware limited
partnership ("Xxxxxxx"), and TRC Realty Co., a Vermont corporation ("Lessee").
R E C I T A L S
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Lessee has entered into that certain Aircraft Lease Agreement dated as
of April 14, 1994 (as amended, supplemented or modified from time to time,
the "Lease") with General Electric Capital Corporation ("Lessor") providing
for the lease by Lessee from the Lessor of a certain Beechjet 400A aircraft,
FAA Registration Xxxx N998GP and Manufacturer's Serial Number RK-32, together
with two Xxxxx & Xxxxxxx XX-15D-5 engines and related accessories and
optional equipment (collectively, the "Aircraft"). Perkins is an Affiliate of
Lessee, will be using the Aircraft in its business from time to time as
permitted by the Lease, and desires under this Agreement to provide for its
reimbursement of Lessee for certain costs and expenses of its use of the
Aircraft.
It is hereby agreed as follows:
1. Terms used with initial capital letters in this Agreement and not
otherwise defined shall have the respective meanings given thereto in the
Lease. The following terms when used in this Agreement shall have the
meanings indicated below:
"Contract User" shall mean Perkins and any other
Affiliate of Lessee which has entered into an Aircraft
Reimbursement Agreement with Lessee on substantially the same
terms and conditions as are contained in this Agreement.
"Fixed Costs" shall mean, with respect to any month,
those costs and expenses associated with the possession and
use of the Aircraft for such month of the type which are
reflected as "Fixed Costs" on Exhibit A hereto.
"Usage Share" shall mean, with respect to each Contract
User, such Contract User's share (expressed as a percentage)
of the usage of the Aircraft by all Contract Users during the
preceding month, which share
shall be determined by dividing the number of hours of use of
the Aircraft by such Contract User during such month by the
total number of hours of use of the Aircraft during such
month by all Contract Users.
"Variable Expenses" shall mean, with respect to any
month, all costs and expenses incurred in connection with the
possession and use of the Aircraft during such month other
than Fixed Costs, and shall include, without limitation,
those costs and expenses of the type which are reflected as
"Variable Expenses" on Exhibit A.
2. Lessee agrees to make the Aircraft available for use by Perkins
on request, subject to the availability of the Aircraft and Lessee's
customary scheduling requirements. Lessee will use its best efforts to make
the Aircraft available roughly proportionate to Perkins' Fixed Costs
reimbursement obligation set forth in Section 4(a) of this Agreement. It is
understood and agreed, however, that Lessee shall be and remain solely
responsible for the possession and use of the Aircraft and for the payment
and performance of all obligations under the Lease, and Perkins shall have no
responsibility or obligation with respect thereto except for the
reimbursement of costs as provided for in Section 4(a) of this Agreement.
3. This Agreement shall be for a term commencing on April 14, 1994
and continuing to and through the Term of the Lease.
4. (a) Perkins shall reimburse Lessee monthly an amount equal to the
sum of (a) one-half (1/2) of the Fixed Costs of the Aircraft for the
preceding month, and (b) its Usage Share of the Variable Expenses of the
Aircraft for the preceding month; provided, however, that if there are more
than two Contract Users at any time during the term of this Agreement, the
denominator in the fraction in the foregoing clause (a) shall be increased to
the total number of Contract Users.
(b) For the purposes of this Agreement, Fixed Costs and Variable
Expenses shall be Lessee's fully allocated costs, as determined by Lessee
from its books and records in accordance with generally accepted accounting
principles. The gross receipts received by Lessee with respect to any month
from the use of the Aircraft by a person other than a Contract User shall be
credited to Fixed Costs or Variable Expenses for such month in such
consistent manner as Lessee shall in good xxxxx xxxx appropriate. All
determinations of hourly use of the Aircraft by Perkins for each month shall
be made by Lessee in accordance with its books and records.
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(c) The Lessee will xxxx Xxxxxxx monthly, promptly after the last day
of the month, for the amount of its reimbursement amount for the Aircraft for
the preceding month, which xxxx will be due and payable within ten (10) days.
5. It is understood and agreed that at all times the operation of
the Aircraft shall be under the exclusive control of the Lessee and its
employees, who shall at all times be properly qualified and licensed as
required by the Lease. The Lessee shall at all times maintain a policy or
policies of insurance on the Aircraft, its ownership, use and operation as
required under the Lease, naming Perkins as an additional insured. The Lessee
hereby agrees to indemnify, defend, and save and keep harmless, Perkins, its
partners, agents, employees, successors and assigns from any and all losses,
damages, penalties, injuries, claims, actions and suits, including reasonable
legal expenses, of whatsoever kind and nature, in contract or tort or
otherwise, except for those caused by the negligence or willful misconduct of
Perkins, arising out of the ownership or operation of the Aircraft.
6. Lessee shall maintain all books and records as required by
Federal Aviation Regulations and the manufacturer of the Aircraft and shall
maintain a log of the operation of the Aircraft in such detail as shall
enable Perkins to accurately report for income taxes under applicable
Internal Revenue Service regulations. Lessee, if requested by Perkins,
shall permit Perkins to audit its books and records relating to the costs and
Aircraft usage being reimbursed hereunder.
7. Nothing herein contained shall be construed as constituting a
partnership, joint venture or agency between Lessee and Perkins.
8. Each party hereto intends that this Agreement shall not benefit
or create any right or cause of action in or on behalf of any person other
than the parties hereto.
9. All terms and provisions of this Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and the respective
successors and assigns; provided, however, that this Agreement may not be
assigned by either party hereto without the written consent of the other
party (which consent shall not be unreasonably withheld).
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10. This Agreement shall be governed by the laws of the State of
Illinois.
In witness whereof, the parties have signed this Agreement as of the
date first above written.
XXXXXXX RESTAURANTS OPERATING
COMPANY, L.P.
By: Xxxxxxx Management Company,
Inc., General Partner
By: ________________________
Its: Executive Vice President
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TRC REALTY CO.
By: ____________________________
Its: Chairman, President & CEO
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EXHIBIT A
TRC REALTY CO.
AIRCRAFT REIMBURSEMENT ALLOCATION
FIXED COSTS
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Lease Payments
Pilot (Salaries & Benefits)
Pilot Relocation
Hangar Rental
Property Taxes
Letter of Credit Fees
Set Up Expenses
Other Fees
Dues & Subscriptions
Supplies
Telephone
Amortization
Insurance
VARIABLE EXPENSES
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Fuel
Maintenance
Engine
Landing Fees
Pilot Travel Expenses
Catering Costs
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