exv10w1



 






EXHIBIT 10.1




AGREEMENT




     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”).



RECITALS




     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:




	 	•	 	Average weighted cost of fuel, oil, lubricants, and other additives;
	 
	 	•	 	Travel expenses of the crew, including food, lodging and ground transportation;
	 
	 	•	 	Hangar and tie-down costs away from the Aircraft’s base of operation;





 









 






	 	•	 	Landing fees, airport taxes and similar assessments;
	 
	 	•	 	Customs, foreign permits, and similar fees directly related to the flight;
	 
	 	•	 	In-flight food and beverages;
	 
	 	•	 	Passenger ground transportation;
	 
	 	•	 	Trip related maintenance;
	 
	 	•	 	Flight planning and weather contract services; and
	 
	 	•	 	Repositioning Costs.





     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;




          (b) destination;




          (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



2









 







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 complete authority to cancel
any flight for any reason or condition that in his or her judgment would compromise the safety of
the flight.



     9. Flight Crew. The Company shall ensure that for each flight conducted under this
Agreement that the Aircraft will be under the command of a qualified flight crew. All flight
operations by or on behalf of Executive under this Agreement shall be conducted under Part 91 of
the FAR. The Company shall have and exercise exclusive operational control of the Aircraft during
all phases of all flights under this Agreement, including, without limitation, all flights during
which Executive, and/or his guests, designees, or property are on-board the Aircraft.



     10. Safety of Flights. In accordance with applicable FARs, the qualified flight crew
provided by the Company will exercise all of its duties and responsibilities in regard to the
safety of each flight conducted hereunder. Executive specifically agrees that the flight crew, in
its sole discretion, may terminate any flight, refuse to commence any flight, or take other action
that in the considered judgment of the pilot in command is necessitated by considerations of
safety. No such action of the pilot in command shall create or support any liability for loss,
injury, damage or delay to Executive or any other person. The parties further agree that the
Company shall not be liable for delay or failure to furnish the Aircraft and crew pursuant to this
Agreement for any reason whatsoever.



     11. Hull and Liability Insurance.



          (a) The Company, at its sole cost, shall maintain in effect during the Term liability
insurance covering public liability, property damage, including passenger legal liability and the
all risk hull and engine insurance in at least the amount required under the Aircraft Management
Agreement between the Company and The Air Group, Inc. or the Aircraft Lease. The Company’s
insurance shall be primary and without right of contribution from any insurance of Executive.




          (b) The Company will provide such additional insurance coverage as Executive shall request or
require, provided, however, that the cost of such additional insurance shall be borne by Executive
as set forth in paragraph 2.




     12. Representations of Executive.



          (a) Executive warrants that:




3









 





               (i) He will use the Aircraft for and on account of his own business or personal use only, and
will not use the Aircraft for the purpose of providing transportation of passengers or cargo in air
commerce for compensation or hire;



               (ii) He will refrain from incurring any mechanics or other lien in connection with inspection,
preventative maintenance, maintenance or storage of the Aircraft, whether permissible or
impermissible under this Agreement, nor shall there be any attempt by Executive to convey,
mortgage, assign, lease or any way alienate the Aircraft or create any kind of lien or security
interest involving the Aircraft or do anything or take any action that might mature into such a
lien; and



               (iii) During the term of this Agreement, he will, and will cause any passengers in his party
to, 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 the operation and use of the
Aircraft by a lessee.



          (b) Executive hereby acknowledges and agrees that all rights of Executive under this Agreement
with respect to the Raytheon Hawker 800XP aircraft bearing FAA registration number N526XP (to be
changed to N837RE) and manufacturer’s serial number 258526, are and will be subject and expressly
subordinate to the terms and conditions of the Aircraft Lease and the rights of the Lessor
contained therein. Notwithstanding anything to the contrary contained herein, this Agreement shall
terminate, or be canceled, at the option of the Lessor, upon written notice to Executive upon the
occurrence of an Event of Default (as such term is defined in the Aircraft Lease).




     13. Risk of Loss. The Company assumes and shall bear the entire risk of loss, theft,
confiscation, damage to, or destruction of the Aircraft. The Company shall release, indemnify,
defend and hold harmless the Executive and his heirs, executors and personal representatives from
and against any and all losses, liabilities, claims, judgments, damages, fines, penalties,
deficiencies and expenses (including, without limitation, reasonable attorneys fees and expenses)
incurred or suffered by Executive on account of a claim or action made or instituted by a third
person arising out of or resulting from operations of the Aircraft hereunder and/or any services
provided by the Company to Executive hereunder, except to the extent attributable to the gross
negligence or willful misconduct of Executive or his guests on the Aircraft.



     14. Aircraft Base. For purposes of this Agreement, the permanent base of operation of
the Aircraft shall be Centennial Airport, Englewood, Colorado.



     15. No Assignment. Neither this Agreement nor any party’s interest herein shall be
assignable to any other party whatsoever. This Agreement shall inure to the benefit of and be
binding upon the parties hereto, and their respective heirs, representatives and successors.



     16. Entire Agreement. This Agreement constitutes the entire agreement of the parties
with respect to the Aircraft as set forth herein.



     17. Governing Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Colorado.



4









 





     18. Amendments. This Agreement may not be changed, altered, modified or amended,
except in writing signed by both parties to this Agreement. This Agreement shall be binding upon
the parties hereto and their respective successors and permitted assigns.



     19. Counterparts. This Agreement may be executed in one or more counterparts, and by
the different parties hereto in separate counterparts, each of which when executed shall be deemed
to be an original but all of which taken together shall constitute one and the same agreement.



     20. Waiver. No purported waiver by either party of any default by the other party of
any term or provision contained herein shall be deemed to be a waiver of such term or provision
unless the waiver is in writing and signed by the waiving party. No such waiver shall in any event
be deemed a waiver of any subsequent default under the same or any other term or provision
contained herein.



     21. Jointly Prepared. This Agreement is to be deemed to have been prepared jointly by
the parties hereto, and any uncertainty or ambiguity existing herein, if any, shall not be
interpreted against any party, but shall be interpreted according to the application of rules of
interpretation for arm’s-length agreements.



     22. No Third Party Rights. Nothing herein expressed or implied is intended or shall
be construed to confer upon or give any person other than the parties hereto and their successors
or assigns, any rights or remedies under or by reason of this Agreement.



     23. No Joint Venture. Nothing contained in this Agreement shall be deemed or
construed by the parties hereto or by any third person to create the relationship of principal and
agent or of partnership or of joint venture.



[REMAINDER OF PAGE INTENTIONALLY BLANK]




5









 





     24. TRUTH IN LEASING STATEMENT UNDER FAR 91.23.



     THE AIRCRAFT, RAYTHEON HAWKER 800XP AIRCRAFT, BEARING MANUFACTURER’S SERIAL NUMBER 258526,
CURRENTLY REGISTERED WITH THE FEDERAL AVIATION ADMINISTRATION AS N526XP (TO BE CHANGED TO N837RE)
HAS BEEN MAINTAINED AND INSPECTED UNDER FAR PART 91.409(f)(3) DURING THE 12 MONTH PERIOD PRECEDING
THE DATE OF THIS LEASE.



     THE AIRCRAFT WILL BE MAINTAINED AND INSPECTED UNDER FAR PART 91.409(f)(3) FOR OPERATIONS TO BE
CONDUCTED UNDER THIS LEASE.



     UNITED DOMINION REALTY TRUST, INC. A MARYLAND CORPORATION, IS CONSIDERED RESPONSIBLE FOR
OPERATIONAL CONTROL OF ALL AIRCRAFT IDENTIFIED AND TO BE OPERATED UNDER THIS LEASE. I, THE
UNDERSIGNED, W. MARK WALLIS, AS SENIOR EXECUTIVE VICE PRESIDENT OF UNITED DOMINION REALTY TRUST,
INC., CERTIFY THAT IT IS RESPONSIBLE FOR OPERATIONAL CONTROL OF THE AIRCRAFT FOR OPERATIONS TO BE
CONDUCTED UNDER THIS LEASE AND THAT IT UNDERSTANDS ITS RESPONSIBILITIES FOR COMPLIANCE WITH
APPLICABLE FEDERAL AVIATION REGULATIONS.



     AN EXPLANATION OF FACTORS BEARING ON OPERATIONAL CONTROL AND PERTINENT FEDERAL AVIATION
REGULATIONS CAN BE OBTAINED FROM THE NEAREST FAA FLIGHT STANDARDS DISTRICT OFFICE.



     THE ADDRESS OF UNITED DOMINION REALTY TRUST, INC. IS 1745 SHEA CENTER DRIVE, SUITE 200,
HIGHLANDS RANCH, COLORADO 80129.



     IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.



	 	 	 	 	 
	 	UNITED DOMINION REALTY TRUST, INC.

 	 
	 	By:  	/s/ W. Mark Wallis
 	 
	 	 	Name:  	W. Mark Wallis 	 
	 	 	Title:  	Senior Executive Vice President 	 
	 
	 	 	 
	 	  	/s/ Thomas W. Toomey
 	 
	 	 	THOMAS W. TOOMEY 	 
	 	 	 	 
	 




6









 








INSTRUCTIONS FOR COMPLIANCE WITH “TRUTH IN LEASING”

REQUIREMENTS



1. Mail a copy of the lease to the following address via certified mail, return receipt requested,
immediately upon execution of the lease (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 the nearest Flight Standards District Office at least forty-eight hours prior to the
first flight under this lease.



3. Carry a copy of the lease in the aircraft at all times.