EXHIBIT 10.5
AIRCRAFT TIME SHARING AGREEMENT
This AIRCRAFT TIME SHARING AGREEMENT ("Agreement"), dated as of the 6th day
of August 2007, is by and between Triarc Companies, Inc. with its principal
address at 280 Park Avenue, New York, New York 10017 ("Owner") and
__________________("Lessee").
RECITALS
WHEREAS, Owner owns a Gulfstream Aerospace G-IV aircraft bearing U.S.
Registration No. N394TR and Manufacturer's Serial No. 1252 (the "Aircraft");
WHEREAS, Lessee desires to lease the Aircraft from Owner and Owner is
willing to lease the Aircraft to Lessee;
WHEREAS, Owner and Lessee have agreed on the lease of the Aircraft under a
time sharing arrangement the terms and conditions of which are set forth herein;
WHEREAS, this Agreement is entered into in recognition of and in compliance
with the applicable provisions of U.S. Code of Federal Regulations 14 C.F.R.
ss.91.501(b)(6).
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
ARTICLE 1: LEASE OF AIRCRAFT; TERM
1.1 Lease of Aircraft. Subject to the terms and conditions herein, Owner
shall lease the Aircraft to Lessee from time to time with a flight crew for the
operation thereof, as and when required by Lessee so long as the Aircraft is not
otherwise employed on behalf of Owner. Lessee's use of the Aircraft shall
constitute a non-exclusive lease.
1.2 Term. The lease of the Aircraft under the terms and provisions of this
Agreement shall become effective upon execution of this Agreement and the
Aircraft shall at such time, without further deed of lease or transfer, pass
under and become subject to the terms and conditions of this Agreement. Such
lease shall terminate on June 30, 2008; provided that the term of this Agreement
shall be automatically extended for successive one-year periods unless not later
than 60 days preceding any termination date either party shall give written
notice to the other that it does not wish to further extend the term and
provided further that, at any time subsequent to June 30, 2008, Owner shall have
the right to terminate this Agreement upon not less than 60 days prior written
notice to Lessee, provided if Owner elects to terminate this Agreement pursuant
to the foregoing, Owner shall deliver to Lessee a secretary's certification of
resolutions of the Owner's Board of Directors acting at a meeting at which a
quorum of the Directors were present, authorizing such termination.
ARTICLE 2: PERMISSIBLE CHARGES; TAXES
2.1 Fees and Charges. As consideration for the lease of the Aircraft,
Lessee shall pay the following charges to Owner on a flight-by-flight basis
following the completion of each flight with the Aircraft:
(a) Fuel, oil, lubricants and other additives;
(b) Travel expenses of the crew, including fuel, 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, if applicable;
(g) In-flight food and beverages;
(h) Passenger ground transportation; and
(i) Flight planning and weather contract services.
Under no circumstances shall the compensation paid by the Lessee to the
Owner under this agreement exceed the amounts permissible under 14 C.F.R.
ss.91.501(d).
2.2 Invoice and Payment. Within thirty (30) business days following the
completion of each flight of the Aircraft on behalf of Lessee, Owner shall
invoice Lessee for the charges specified in Section 2.1. Lessee shall pay the
amount stated in the invoice within ten (10) business days following its
receipt.
2.3 Taxes. The payment of any compensation in connection with the flights
conducted on behalf of Lessee under this agreement is subject to federal
transportation excise tax as provided under 26 U.S.C. ss.4261. Owner shall be
responsible for the payment of any and all federal transportation excise taxes
in connection with this Agreement. All other federal, state, or local taxes,
duties or assessments imposed on the charges specified in Section 2.1 shall be
the responsibility of Lessee.
ARTICLE 3: DELIVERY AND REDELIVERY OF AIRCRAFT
3.1 Scheduling of Aircraft. Lessee shall request use of the Aircraft no
less than three (3) hours prior to the requested departure time. All requests
for the use of the Aircraft shall be submitted to such employee of Owner as
shall be designated by Owner. Each such request shall specify the name of the
Lessee, the date of departure, the date of return, the point of origin and the
destination, the number and name of all passengers and emergency contact
information for each passenger which shall not be another passenger on the same
flight. Owner shall have final and exclusive authority over the scheduling of
the Aircraft.
3.2 Delivery and Redelivery of Aircraft. Delivery and redelivery of the
Aircraft by one party to the other party shall ordinarily be made at Stewart
International Airport in New Windsor, New York; provided, however, that delivery
and/or redelivery of the Aircraft may be made at such other airport as shall be
agreed upon by the parties.
ARTICLE 4: FLIGHT CREWS AND FLIGHT OPERATIONS
4.1 Flight Crews. Owner shall provide a complete flight crew for the
operation of the Aircraft during the lease of the Aircraft to Lessee under this
Agreement. Each member of such flight crew shall be duly licensed and qualified
to operate the Aircraft in accordance with the regulations and requirements of
the Federal Aviation Administration ("FAA").
4.2 Operational Control. Owner shall at all times have operational control
over all flights performed under this Agreement and shall be solely responsible
for compliance with all applicable FAA regulations. The Lessee shall have the
right to determine the schedules and destination of a flight while the Aircraft
is being operated on behalf of Lessee, provided however that the
pilot-in-command shall have sole authority to determine whether a flight may be
safely operated and to initiate and terminate flights. Lessee undertakes to
accept all decisions of the pilot-in-command regarding the operation of the
Aircraft.
4.3 Operation of Aircraft. Owner shall operate the Aircraft in a safe and
reasonable manner and at all times in compliance with all applicable laws and
regulations, including, without limitation, the rules and regulations of the
FAA.
ARTICLE 5: MAINTENANCE
5.1 Aircraft Maintenance. During the term of this Agreement, Owner shall
service and repair the Aircraft so as to:
(a) maintain the Aircraft in good operating condition;
(b) keep the Aircraft duly certified as airworthy at all times under the
regulations of the FAA;
(c) maintain the Aircraft in accordance with the standards prescribed by
applicable law as the same may be in effect from time to time; and
(d) maintain all records, logs and other documents required to be
maintained with respect to the Aircraft.
5.2 Maintenance Scheduling. All maintenance and inspections of the Aircraft
shall have priority in scheduling the operation of the Aircraft on behalf of
Lessee, unless such maintenance and inspections may be deferred in accordance
with applicable FAA regulations and recommended manufacturer maintenance
procedures.
ARTICLE 6: REPRESENTATIONS AND WARRANTIES
6.1 Owner Representations and Warranties. Owner represents and warrants to
Lessee as follows:
(a) Owner has title to the Aircraft and has all necessary
authority to enter into this Agreement for the lease of the
Aircraft to Lessee; and
(b) Owner has not entered into this Agreement for the purpose of
engaging in the sale of air transportation services for
compensation or hire in contravention of the rules and
regulations of the FAA.
6.2 Lessee Representations and Warranties. Lessee represents and warrants
to Owner as follows:
(a) Lessee has all necessary authority to enter into this Agreement for the
lease of the Aircraft from Owner; and
(b) Lessee has not entered into this Agreement for the purpose of engaging
in the sale of air transportation services or for compensation or hire
in contravention of the rules and regulations of the FAA.
ARTICLE 7: INSURANCE
7.1 Insurance. Owner shall provide and maintain Aircraft third party
aviation legal liability insurance in an amount not less than $500 million Such
insurance shall include the following provisions:
(a) Lessee shall be named as an additional insured;
(b) Such insurance shall be primary without any right of contribution from
any insurance carried by the Lessee;
(c) The underwriter of such insurance shall waive any right of subrogation
with respect to potential claims against Lessee.
7.2 Indemnification. Owner hereby indemnifies and agrees to hold Lessee
harmless from and against any and all liabilities, claims, demands, suits,
judgments, damages, losses, costs and expenses (including reasonable legal
expenses and attorneys' fees) for or on account of or in any way connected with
injury to or death of any persons whomsoever or loss of or damage to property
arising out of (i) the use or operation of the Aircraft under this Agreement or
in any way connected with this Agreement including but not limited to the
Aircraft and related equipment or (ii) the performance or nonperformance by
Owner of its responsibilities under this Agreement, unless such loss or damage
results from the gross negligence or willful misconduct of Lessee.
ARTICLE 8: TERMINATION
8.1 Termination by Owner. This Agreement shall automatically terminate upon
the cessation of [Lessee's services as a director](1) [Lessee being an
affiliate](2) of Owner.
ARTICLE 9: MISCELLANEOUS
9.1 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to any conflict
of laws rules thereof that might indicate the application of the laws of any
other jurisdiction.
9.2 Severability. If any provision of this Agreement becomes invalid,
illegal or unenforceable in any respect under any law, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired.
9.3 Counterparts. This Agreement may be executed in any number of
counterparts, each such counterpart constituting an original hereof.
ARTICLE 10: TRUTH-IN-LEASING
10.1 Truth-in-Leasing. THE AIRCRAFT SUBJECT TO THIS TIME SHARING AGREEMENT
HAS BEEN MAINTAINED AND INSPECTED IN ACCORDANCE WITH PART 91 OF THE FEDERAL
AVIATION REGULATIONS DURING THE TWELVE (12) MONTHS PRECEDING THE EFFECTIVE DATE
HEREOF AND THE PARTIES HERETO CERTIFY THAT FOR THE PURPOSES OF THE OPERATION TO
BE CONDUCTED PURSUANT TO THIS AGREEMENT THE AIRCRAFT IS IN FULL COMPLIANCE WITH
THE APPLICABLE MAINTENANCE AND INSPECTON REQUIREMENTS OF SAID PART 91. THE NAME
AND ADDRESS OF THE PARTY RESPONSIBLE FOR THE OPERATIONAL CONTROL OF THE AIRCRAFT
FOR THE TERM OF THIS AGREEMENT IS TRIARC COMPANIES, INC., 280 PARK AVENUE, NEW
YORK, NEW YORK 10017, AND SAID PARTY HEREBY CERTIFIES THAT IT UNDERSTANDS ITS
RESPONSIBILITY TO COMPLY WITH APPLICABLE FEDERAL AVIATION REGULATIONS. AN
EXPLANATION OF THE FACTORS BEARING ON OPERATIONAL CONTROL AND PERTINENT FEDERAL
AVIATION REGULATIONS CAN BE OBTAINED FROM THE NEAREST FEDERAL AVIATION
ADMINISTRATION FLIGHT STANDARDS DISTRICT OFFICE.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
TRIARC COMPANIES, INC. [LESSEE]
By: ___________________________ ____________________________
Name:
Title:
_______________________________________
(1) For individual agreements only.
(2) For Trian Fund Management, L.P. agreement only.