Exhibit 10.1
AMENDED AND RESTATED
AIRCRAFT DRY LEASE
AGREEMENT
BETWEEN
LENNAR AIRCRAFT I, LLC
as Lessor
AND
US HOME CORPORATION
as Lessee
STUART MILLER
CHIEF EXECUTIVE OFFICER
LENNAR CORPORATION
as Optional Payor for Payment Only
under Paragraph 4
Dated as of the 1st day of December,
2008
Lease of One (1) 2005
Bombardier Inc. CL-600-2B16
(a/k/a Bombardier Challenger 604),
Manufacturers Serial Number 5607
FAA Registration No. N954L
TABLE OF
CONTENTS
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1.
Lease
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3
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2.
Definitions
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3
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3.
Term
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7
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4.
Rent; Unconditional Obligations; Security
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7
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5.
Disclaimer; Assignment of Warranties
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9
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6.
Delivery; Return
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10
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7.
Representations and Warranties
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11
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8.
Liens
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13
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9.
Insurance
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13
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10.
Taxes
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14
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11.
Compliance with Laws; Location, Operation and Maintenance;
Additions
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17
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12.
Inspection
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21
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13.
Identification
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21
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14.
Certain Transactions
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21
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15.
Loss or Damage
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21
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16.
General Indemnity
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22
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17.
Events of Default
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24
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18.
Remedies
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26
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19.
Lessor’s Right to Perform
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27
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20.
Assignment or Sublease
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27
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21.
Further Assurances; Financial Information
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28
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22.
Notices
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28
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23.
Conditions Precedent
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29
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24.
Miscellaneous
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30
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25.
Truth-in-Leasing
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32
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2
AMENDED AND
RESTATED
AIRCRAFT LEASE
AGREEMENT
This Amended and Restated
Aircraft Lease Agreement , dated as of the 1st day of December,
2008 between Lennar Aircraft I, LLC (“Lessor”),
Stuart Miller (“Optional Payor”), solely in his
capacity as Chief Executive Officer of Lennar Corporation and
solely with respect to the payment of rent under paragraph 4
herein, and US Home Corporation
(“Lessee”).
1. Lease .
a. Lessor agrees to lease to Lessee
and Lessee agrees to lease from Lessor hereunder, on a
non-exclusive basis, the aircraft which is described in
Section 2(a) hereof (the “Aircraft”), on a
non-exclusive basis.
2. Definitions
.
a. As used in this Lease, the
following terms shall have the following meanings (such definitions
to be equally applicable to both the singular and plural forms of
the terms defined):
“ Affiliate ”
shall mean with respect to any Person, any Person which, directly
or indirectly, controls, is controlled by, or is under common
control with such Person. For purposes of this definition,
“control” of a Person means the power, direct or
indirect, to vote ten percent (10%) or more of the securities
having voting power for the election of directors of such Person;
or otherwise to direct or cause the direction of the management and
policies of such person, whether by contract or
otherwise.
“ Aircraft ”
shall mean the Airframe to be leased hereunder together with the
Engines to be leased hereunder whether or not any of the Engines
may at the time of determination be installed on the Airframe or
any other airframe.
“ Airframe ”
shall mean the Lease of One (1) 2005 Challenger 604,
Manufacturers Serial Number 5607, FAA Registration No.
N954L.
“ Anti-Money Laundering
Laws ” means those laws, regulations and sanctions, state
and federal, criminal and civil, that (a) limit the use of
and/or seek the forfeiture of proceeds from illegal transactions;
(b) limit commercial transactions with designated countries or
individuals believed to be terrorists, narcotics dealers or
otherwise engaged in activities contrary to the interests of the
United States; (c) require identification and documentation of
the parties with whom a Financial Institution conducts business; or
(d) are designed to disrupt the flow of funds to terrorist
organizations. Such laws, regulations and sanctions shall be deemed
to include the Patriot Act, the Bank Secrecy Act, the Trading with
the Enemy Act, 50 U.S.C. App. Section 1 et seq, the
International Emergency Economic Powers Act, 50 U.S.C.
Section 1701 et seg, and the sanction regulations promulgated
pursuant thereto by the OFAC, as well as laws relating to
prevention and detection of money laundering in 18 U.S.C. Sections
1956 and 1957.
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“ Aviation Act ”
means the Federal Aviation Act of 1958, as amended.
“ Bill of Sale ”
shall mean an FAA Bill of Sale whereby title to the Aircraft is in
possession of the Lessor.
“ Business Day ”
shall mean a day other than a Saturday, Sunday or legal holiday
under the laws of the State of Florida.
“ Cape Town Convention
” shall mean the Convention and the Protocol.
“ Code ” shall
mean the Internal Revenue Code of 1986, as it may be amended
hereafter, or any comparable successor law.
“ Commencement Date
” shall mean the date of execution hereof by all
parties.
“ Convention ”
shall mean the Convention on International Interests in Mobile
Equipment concluded in Cape Town, South Africa.
“ Default ” shall
mean any event or condition which with notice, lapse of time or
both would constitute an Event of Default.
“ Engines ” shall
mean two (2) General Electric Model CF 34-3B jet aircraft
engines, respectively bearing Manufacturer’s Serial Nos.
GE-E950299 and GE-E950296, each of which is rated at greater than
seven hundred fifty (750) or more take off horsepower or its
equivalent (and each of which is referred to herein as an
“Engine”).
“ Event of Default
” shall have the meaning specified in Section 17
hereof.
“ Event of Loss ”
shall mean, with respect to the Aircraft, an Engine or any Part
thereof, any damage requiring the completion of an FAA Form 337,
“Major Repair and Alteration Statement” which results
in the payment of an insurance settlement for the actual or
constructive total loss of the Aircraft, Engine(s) or any such Part
or the loss of use thereof due to the theft, destruction, damage
beyond repair or rendition thereof permanently unfit for normal use
for any reason whatsoever, or the condemnation or grounding of all
Learjet 60 series aircraft by any governmental authority for more
than one year, or confiscation or seizure of, or requisition of
title to or use of the Aircraft.
“ FAA ” shall
mean the Federal Aviation Administration or any applicable
successor governmental authority.
“ Fair Market Sale
Value ” shall, at any time with respect to the Aircraft,
be equal to the sale value of the Aircraft which would be obtained
in an arm’s-length transaction between an informed and
willing seller under no compulsion to sell and an informed and
willing buyer-user (other than a lessee currently in possession or
a used equipment or scrap dealer) under no compulsion to buy. For
purposes of Section 6 and hereof, Fair Market Sale Value shall
be determined by a recognized independent appraiser (at
Lessee’s
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sole expense) selected by Lessor, and reasonably
satisfactory to Lessee, which determination shall be made on the
assumption that the aircraft is free and clear of all Liens and is
in the condition and repair in which it is required to be returned
pursuant to Section 6(a) hereof. For purposes of
Section 18(c) hereof, Fair Market Sale Value shall be
determined (at Lessee’s expense) by an independent appraiser
selected by Lessor, on an “as is, where is” basis,
without regard to the assumptions set forth in the immediately
preceding sentence; provided, that, if Lessor shall have sold the
Aircraft pursuant to Section 18(b) hereof prior to giving the
notice referred to in Section 18(c) hereof, Fair Market Sale
Value of the Aircraft shall be the net proceeds of such sale after
deduction of all costs and expenses incurred by Lessor in
connection therewith; provided, further, that if for any reason
Lessor is not able to obtain possession of the Aircraft pursuant to
Section 18(a) hereof, the Fair Market Sale Value of the
Aircraft shall be zero (and, in such event, upon payment by Lessee
of the amounts Lessee is obligated to pay pursuant to
Section 18(c) hereof Lessor shall assign all its rights to
such Aircraft or insurance proceeds to Lessee).
“ International
Interest ” shall have the meaning set forth in the Cape
Town Convention.
“ Late Charge Rate
” shall mean an interest rate per annum equal to the
Reference Rate plus two percent (2%) per annum but not to
exceed the highest rate permitted by applicable law.
“ Lease ” and the
terms “hereof”, “herein”,
“hereto” and “hereunder”, when used in this
Aircraft Lease Agreement, shall mean and include this Aircraft Dry
Lease Agreement as the same may from time to time be amended,
modified or supplemented.
“ Lessor’s Cost
” shall mean the total amount paid by the Lessor for the
Aircraft.
“ Lessor’s Liens
” shall mean any mortgage, pledge, lien, security interest,
charge, encumbrance, financing statement, title retention, taxes or
any other right or claim of any person claiming through or under
Lessor other than the interest of the Lessor as Owner and Lessor of
the Aircraft hereunder.
“ Liens ” shall
mean any mortgages, pledge, lien, security interest, charge,
encumbrance, financing statement, title retention or any other
right or claim of any person with respect to the Aircraft, other
than any Lessor’s Liens or Permitted Liens.
“ Loss Payment Date
” shall mean with respect to the Aircraft the date on which
payment, as described in Section 15(b) hereof, is made to the
Lessor by the Lessee as the result of an Event of Loss with respect
to the Aircraft. The Loss Payment Date shall be within one hundred
twenty (120) days of the Rent Payment Date immediately
following said Event of Loss.
“ OFAC ” means
the Office of Foreign Assets Control, Department of the
Treasury.
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“ Parts ” shall
mean any and all avionics, instruments, appliances, furnishings,
repairs, parts, appurtenances, accessories and other equipment and
attachments incorporated or installed in or attached to the
Airframe or any Engine and from time to time incorporated or
installed in or attached to the Airframe or any Engine, together
with all additions, attachments or accessions to any of the
foregoing and all replacements and substitutions for any of the
foregoing.
“ Patriot Act ”
means the USA PATRIOT Act of 2001, Pub. L.
No. 107-56.
“ Permitted Act ”
shall mean (a) the execution and delivery by Lessee of this
Lease and any proper attachment hereto; (b) the exercise of
any purchase option pursuant to this Lease; and (c) any act
that Lessee is required or expressly permitted to do pursuant to
this Lease or other agreement executed in connection
herewith.
“ Permitted Liens
” shall mean any of the following: (a) the respective
rights of Lessor and Lessee as herein provided; (b) the rights
of others under agreements or arrangements only to the extent
expressly permitted by the terms of Section 20;
(c) Lessor’s Liens; (d) Liens for taxes either not
yet due or being contested in good faith (and for payment of which,
to the extent required by GAAP adequate reserves have been
provided) by appropriate proceedings conducted with due diligence
so long as such proceedings do not involve any material danger of
the sale, forfeiture or loss of the Airframe or any Engine or
interest therein; (e) materialmen’s, mechanics’,
workmen’s, repairmen’s, or other like Liens arising in
the ordinary course of business for amounts the payment of which is
either not yet delinquent or is being contested in good faith (and
for the payment of which adequate reserves had been provided) by
appropriate proceedings so long as such proceedings do not involve
any material danger of the sale, forfeiture or loss of the Airframe
or any Engine or interest therein; (f) salvage rights of
insurers under insurance policies maintained pursuant to
Section 9; (g) Liens arising out of judgments or awards
against Lessee or a sublessee with respect to which at the time
there shall have been secured a stay of execution and; (h) any
other Lien with respect to which Lessee or sublessee shall have
provided a bond or other security in an amount and under terms
reasonably satisfactory to Lessor. Lessee will promptly at its own
expense, take such action as may be necessary duly to discharge (by
bonding or otherwise) any such Lien not accepted above if the same
shall arise at any time.
“ Person ” shall
mean an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, incorporated
association, joint venture, governmental authority or other entity
of whatever nature.
“ Protocol ”
shall mean the protocol to the Convention on Matters Specific to
Aircraft Equipment.
“ Reference Rate
” shall mean an implicit interest rate of eight and 50/100
percent (8.5%).
“ Rent Payment Date
” shall mean each date on which an installment of rent is due
and payable pursuant to the terms hereof.
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“ Specially Designated
National and Blocked Persons ” means those Persons that
have been designated by executive order or by the sanction
regulations of OFAC as Persons with whom U.S. Persons may not
transact business or must limit their interactions to types
approved by OFAC.
“ Stipulated Loss Value
” shall mean Twenty Two Million Seven Hundred and Sixty Seven
Thousand Four Hundred (U.S. $22,767,400.00) United States Dollars;
provided, that for purposes of Section 15(b) and
Section 18(c) hereof, any determination of Stipulated Loss
Value as of a date occurring after the final Rent Payment Date
shall be made as of such final Rent Payment Date.
“ Term ” shall
mean the term of the Lease of the Aircraft hereunder specified in
Section 3 hereof.
b. All accounting terms not
specifically defined herein shall be construed in accordance with
generally accepted accounting principals (“GAAP”)
consistently applied.
3. Term .
The term of the Lease of the
Aircraft hereunder shall commence on the Commencement Date and
shall remain in full force and effect until terminated by either
Lessor or Lessee upon thirty (30) days written notice prior to
the effective date of such termination. Upon expiration of the
Term, Lessee shall return the Aircraft to Lessor in accordance with
the terms of Section 6 hereunder.
4. Rent; Unconditional
Obligations; Security .
a.
Lessee shall pay to Lessor, monthly,
in advance, for the use
of the Aircraft, the sum of the management
fees and costs, maintenance services
and Aircraft operating expenses billed to US Home
Corporation by its provider of Aircraft management
services, plus the monthly cost of the Aircraft under
the Banc of America Lease, in United States dollars,
plus applicable sales tax with the first such payment of
rent with respect to the Aircraft being due on the first day of
December, 2008, and a like amount on the first day of each month
thereafter for the full term of this Lease, or, if such date does
not fall on a business day, on the first business day immediately
succeeding such date. Notwithstanding the foregoing, Optional Payor
may, at his sole discretion and from time to time, pay the rent (or
any portion thereof), due under this paragraph 4(a) provided,
however, to the extent that the Optional Payor remits a portion of
the rent, the Lessee shall pay the remaining portion of the
rent.
b. Lessee shall also pay to Lessor,
on demand, interest at a rate per annum equal to the Late Charge
Rate on any installment of rent and on any other amount owing
hereunder which is not paid when due for any period for which the
same shall be overdue. Each payment made under this Lease shall be
applied first to the payment of interest then owing and then to
rent or other amounts owing hereunder. Interest shall be computed
on the basis of a three hundred sixty (360) day year and
actual days elapsed.
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c. Each payment made under this
Lease shall be applied first to the payment of interest then owing
and then to rent or other amounts owing hereunder. Interest shall
be computed on the basis of a three hundred sixty (360) day
year and actual days elapsed. Lessee shall also pay to Lessor, on
demand, interest at a rate per annum equal to the Late Charge Rate
on any installment of rent and on any other amount owing hereunder
which is not paid when due, for any period for which the same shall
be overdue. Each payment made under this Lease shall be applied
first to the payment of interest then owing and then to rent or
other amounts owing hereunder. Interest shall be computed on the
basis of a three hundred sixty (360) day year and actual days
elapsed.
d. This Lease is a net lease, and
Lessee’s obligation to pay all rent and all other amounts
payable hereunder is ABSOLUTE AND UNCONDITIONAL under any and all
circumstances, and shall not be effected by any circumstances of
any character whatsoever, including, without limitation,
(i) any set-off, counterclaim, recoupment, defense, abatement
or reduction or any right which Lessee may have against Lessor, the
manufacturer or supplier of the Aircraft or anyone else for any
reason whatsoever; (ii) any defect in the condition, design or
operation of, or lack of fitness for use of, for any damage to, or
loss of, all of any part of the Aircraft from any cause whatsoever;
(iii) the existence of any Liens with respect to the Aircraft;
(iv) the invalidity, unenforceability or disaffirmance of this
Lease or any other document related hereto; or (v) the
prohibition of or interference with the use of possession by Lessee
of all or any part of the Aircraft, for any reason whatsoever,
including without limitation, by reason of (1) claims for
patent, trademark or copyright infringement; (2) present or
future governmental laws, rules or orders; (3) the insolvency,
bankruptcy, or reorganization of any person; and (4) any other
cause whether similar or dissimilar to the foregoing, any present
or future law to the contrary notwithstanding. Lessee hereby
waives, to the extent permitted by applicable law, any and all
rights which it may now have or which may at any time hereafter be
conferred upon it, by statute or otherwise, to terminate, cancel,
quit or surrender the lease of the Aircraft. If for any reason
whatsoever this Lease, other than, as expressly provided herein,
shall be terminated in whole or in part by operation of law or
otherwise, Lessee will nonetheless pay to Lessor an amount equal to
each installment of rent at the time such installment would have
become due and payable in accordance with the terms hereof. Each
payment of rent or other amount paid by Lessee hereunder shall be
final and Lessee will not seek to recover all or any part of such
payment from Lessor for any reason whatsoever.
e. Lessee agrees that this Dry
Sublease is subject to the terms and provisions of that certain
Aircraft Lease (S/N 5607) dated as of February 15, 2005 (the
“Banc of America Lease”) between Banc of America
Leasing & Capital, LLC (“Banc of America”) and
Lessor, that certain Consent to Sublease and Assignment dated as of
August 17, 2005 between Banc of America, Lessor and Lessee and
any related documents, agreements or instruments of any kind
whatsoever. Without limiting the generality of the foregoing, the
rights of Lessor, Lessee and any other party, person or entity of
any kind whatsoever claiming through any of Lessor or Lessee with
respect to the Aircraft (and any and all proceeds thereof,
including any insurance proceeds) shall be subject and
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subordinate in all respects to any and all of
the rights, privileges, powers, entitlements, benefits, remedies,
title or interests of Banc of America in or to the Aircraft (and
any and all proceeds thereof, including any insurance proceeds),
including all of its rights and remedies under or in connection
with the Banc of America Lease and any related documents,
agreements or instruments of any kind whatsoever. In addition, and
notwithstanding anything to the contrary set forth in this Dry
Sublease or otherwise, upon the occurrence of any Event of Default
(as such term is defined in the Banc of America Lease) under or in
connection with the Banc of America Lease, this Dry Sublease shall
automatically and immediately terminate.
5. Disclaimer; Assignment of
Warranties .
a. LESSOR NEITHER MAKES NOR SHALL BE
DEEMED TO HAVE MADE AND LESSEE HEREBY EXPRESSLY WAIVES ANY WARRANTY
OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO THE AIRCRAFT
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OR REPRESENTATION AS TO
THE DESIGN, QUALITY OR CONDITION OF THE AIRCRAFT OR ANY WARRANTY OF
MERCHANTABILITY OR FITNESS OF THE AIRCRAFT FOR ANY PARTICULAR
PURPOSE OR TO AS TO ANY OTHER MATTER RELATING TO THE AIRCRAFT OR
ANY PART THEREOF, EXCEPT THAT LESSOR WARRANTS THAT ON THE
COMMENCEMENT DATE LESSOR HAS GOOD AND MARKETABLE TITLE TO THE
AIRCRAFT AND THAT IT HAS THE RIGHT TO LEASE THE AIRCRAFT TO LESSEE
PURSUANT TO THIS AGREEMENT AND THAT THE AIRCRAFT WILL BE AVAILABLE
FOR USE BY LESSEE. LESSEE ACKNOWLEDGES THAT THE USE AND OPERATION
OF JET AIRCRAFT ARE ULTRAHAZARDOUS AND DANGERS ACTIVITIES. LESSEE
IS A KNOWLEDGEABLE AND SOPHISTICATED USER OF JET AIRCRAFT AND
LESSOR SHALL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE SUSTAINED OR
INCURRED DURING OR AFTER THE TERM HEREOF ARISING OUT OF THE USE OR
OPERATION OF THE AIRCRAFT. LESSEE, FOR ITSELF, ITS SUCCESSORS,
ASSIGNS AND ITS INVITEES WAIVES, RELINQUISHES AND RENOUNCES ANY AND
ALL DAMAGE CLAIMS AGAINST LESSOR WHICH LESSEE, ITS SUCCESSOR,
ASSIGNS AND INVITEES CAN OR MAY HAVE AGAINST LESSOR ARISING FROM
THE USE OR OPERATION OF THE AIRCRAFT.
LESSEE CONFIRMS THAT IT HAS SELECTED
THE AIRCRAFT AND EACH PART THEREOF ON THE BASIS OF ITS OWN JUDGMENT
UTILIZING INDEPENDENT EXPERTS SELECTED BY LESSEE AND EXPRESSLY
DISCLAIMS RELIANCE UPON ANY STATEMENTS, REPRESENTATIONS OR
WARRANTIES MADE BY LESSOR (OR ANY AGENT OR REPRESENTATIVE OR
LESSOR), AND LESSEE ACKNOWLEDGES THAT LESSOR IS NOT A MANUFACTURER
OR A VENDOR OF ANY PART OF THE AIRCRAFT.
LESSOR NEITHER MAKES NOR SHALL BE
DEEMED TO HAVE MADE ANY REPRESENTATION OR WARRANTY AS TO THE
ACCOUNTING TREATMENT TO BE ACCORDED TO THE TRANSACTIONS
CONTEMPLATED BY THIS LEASE OR AS TO ANY TAX CONSEQUENCES AND/OR TAX
TREATMENT THEREOF.
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b. Lessor hereby assigns to Lessee
such right as Lessor may have (to the extent Lessor may validly
assign such rights, and to the extent same exist - no warranty or
representation as to whether such warranties exist shall be deemed
to have been made by Lessor) under all manufacturers’ and
suppliers’ warranties with respect to the Aircraft provided,
however, that the foregoing rights shall automatically revert to
Lessor upon the occurrence and during the continuance of any Event
of Default hereunder, or upon the return of the Aircraft to Lessor.
Lessee agrees to settle all claims with respect to the Aircraft
directly with the manufacturers or suppliers thereof, and to give
Lessor prompt notice of any such settlement and the details of such
settlement.
c. Lessor covenants that during the
Term, as long as no Event of Default shall have occurred and be
continuing, the Lessee’s or any sublessee’s possession,
use and quiet enjoyment of the Aircraft leased hereunder shall not
be interrupted by Lessor.
6. Delivery; Return
.
a. The Aircraft shall be delivered
to Lessee at Opa-Locka Airport (““OPF””) in
Miami-Dade County, Florida prior to each flight operation of the
Aircraft and shall be returned to Lessor by Lessee at such location
mutually agreed upon by the parties immediately after each flight
operation. Until the Aircraft is returned to Lessor pursuant to the
provisions of this Section, all of the provisions of this Lease
with respect thereto shall continue in full force and effect.
Lessee shall not cause or permit any distinctive markings to be
placed on the Aircraft at any time.
At the time of each return of the
Aircraft by Lessee to Lessor after each flight operation conducted
hereunder, the Lessee shall: (i) Insure that the Aircraft is
fully equipped and have installed thereon the Engines and any and
all Parts as were installed or incorporated in or attached to the
Aircraft as of the Commencement Date (or subject to such
replacements, substitutions and changes permitted by or required
pursuant to the terms hereof subject to reasonable wear and tear
and the use contemplated herein); (ii) Insure that the
Aircraft shall be duly certified as an airworthy aircraft by the
FAA and be returned with a valid certificate of airworthiness
issued under the Federal Aviation Regulations, or its equivalent
and that the Aircraft will be in full compliance with the original
type certificate data sheet; (iii) Insure that the Aircraft
shall be in the condition and repair required to be maintained by
Section 11 hereof, free and clear of all Liens;
(iv) Insure that Lessor shall receive all logs, manuals and
data and all inspection, modification and overhaul records required
to be maintained with respect to the Aircraft under applicable
rules and regulations of the FAA and any other governmental
authority having jurisdiction which shall be complete and current
through the date the Aircraft is received by Lessor. It is agreed
that Lessor shall maintain the original logs and Lessee shall
maintain copies of the logs. Therefore, all original log entries
shall be forwarded to Lessor by Lessee during the Term hereof and
Lessee shall keep copies thereof; (v) Lessee shall not permit
more than one (1) cycle per every 1.2 hours of operation of
the Aircraft.
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b. Lessee shall be responsible for
its allocated share of all normal maintenance of the Aircraft
during the Term hereof and shall pay for same when and as billed by
the manager of the Aircraft. Lessee shall also be responsible for
all maintenance resulting from Lessee’s abuse, misuse or
improvident use and operation of the Aircraft.
7. Representations and
Warranties . In order
to induce Lessor to enter into this Lease and to Lease the Aircraft
to Lessee hereunder, Lessee represents and warrants
that:
a. Organization . Lessee is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware. For purposes of the Cape
Town Convention, Lessee is situated in the “Contracting
State” (as defined in the Cape Town Convention) of the United
States of America.
b. Power and Authority .
Lessee has full power, authority and legal right to execute,
deliver and perform this lease and the execution, delivery and
performance of this Lease have been duly authorized by all
necessary action of Lessee.
c. Enforceability . This
Lease has been duly executed and delivered by Lessee and
constitutes a legal, valid and binding obligation of Lessee
enforceable in accordance with its terms.
d. Consents and Permits . The
execution, delivery and performance of this Lease does not require
any stockholder or member approval or approval or consent of any
trustee or holders of any indebtedness or obligations of Lessee;
and will not contravene any law, regulation, judgment or decree
applicable to Lessee, or the certificate of incorporation/
organization/formation or by-laws/regulations/operating agreement
of Lessee; and will not contravene the provisions of, or constitute
a default under, or result in the creation of any Lien upon any
property of Lessee under any mortgage, instrument or other
agreement to which Lessee is a party or by which Lessee or its
assets may be bound or affected.
e. Financial Condition of
Lessee . The financial statements of Lessee heretofore
furnished to Lessor present the financial condition of Lessee and
the results of its operations for the respective periods covered
thereby, in accordance with GAAP (provided that interim financial
statements provide summary information, omit certain footnote
information, and are subject to normal year and adjustments) and
since December 31 of the year preceding of execution of this
Lease there has been no material adverse change in such financial
condition or operations.
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f. No Litigation . There is
no action, suit, investigation, or proceeding by or before any
court, arbitrator, administrative agency, or other governmental
authority pending or threatened against or affecting Lessee
(a) which involves the transactions contemplated by this Lease
or the Aircraft; or (b) which, if adversely determined, would
reasonably be expected to have a material adverse effect on the
financial condition, business or operations of Lessee.
g. No Defaults . Lessee is
not in default, and no event or condition exists which after giving
of notice or lapse of time or both would constitute an event of
default, under any mortgage, indenture, contract, agreement,
judgment or other undertaking to which Lessee is a party or which
purports to be binding upon Lessee or upon any of its assets,
except for any such default, event or condition which, individually
or in the aggregate, would not materially affect Lessee’s
ability to perform its obligations under this Lease.
h. Information . All
information supplied by Lessee or any Affiliate of Lessee, to
Lessor or any appraiser, with respect to the Aircraft or any part
thereof, was accurate and complete at the time given and Lessee has
notified Lessor of any material change in any information so
supplied.
i. No Warranties : Lessee has
inspected the Aircraft utilizing the services of experts selected
by Lessee, and at the time of delivery Lessee shall be deemed to
accept delivery of the Aircraft “AS IS, WHEREIS” and
with all faults. Lessor makes no warranty concerning the Aircraft
of any type, express or implied, including any warranty of fitness
for a particular use or otherwise. Lessee is knowledgeable and
sophisticated in the use, maintenance and operation of aircraft and
has selected this Aircraft based upon its own expertise, or the use
of experts of its own selection, and is not relying upon any
statement, representation or warranty of Lessor, all of which are
expressly excluded and disclaimed and all claims related thereto or
arising therefrom are waived, relinquished and renounced by
Lessee.
j. OFAC . Lessee is and will
remain in full compliance with all laws and regulations applicable
to it including, without limitation, (i) ensuring that no
person who owns a controlling interest in or otherwise controls
Lessee is or shall be (Y) listed on the Specially Designated
Nationals and Blocked Person List maintained by the Office of
Foreign Assets Control (“OFAC”), Department of the
Treasury, and/or any other similar lists maintained by OFAC
pursuant to any authorizing statute, Executive Order or regulation
or (Z) a person designated under Section 1(b),
(c) or (d) of Executive Order No. 13224 (September
23, 2001), any related enabling legislation or any other similar
Executive Orders, and (ii) compliance with all applicable Bank
Secrecy Act (“BSA”) laws, regulations and government
guidance on BSA compliance and on the prevention and detection of
money laundering violations.
k. Compliance with International
Trade Control Laws and OFAC Regulations . Lessee represents,
warrants and covenants to and with Lessor that:
(i) They Lessee is not now nor shall
it be at any time until after the Term expires, a Person with whom
a U.S. Person is prohibited from transacting business of the type
contemplated by this Lease, whether such prohibition arises under
U.S. law, regulation, executive orders and lists published by the
OFAC (including those executive orders and lists published by OFAC
with respect to Specially Designated Nationals and Blocked Persons)
or otherwise.
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(ii) No Lessee and no Person who
owns a direct or indirect interest in Lessee is now nor shall be at
any time until after this Lease is fully paid, a Person with whom a
U.S. Person is prohibited from transacting business of the type
contemplated by this Lease, whether such prohibition arises under
U.S. law, regulation, executive orders and lists published by the
OFAC (including those executive orders and lists published by OFAC
with respect to Specially Designated Nationals and Blocked Persons)
or otherwise.
(iii) Lessee represents and warrants
that it is in compliance with any and all applicable provisions of
the Patriot Act.
8. Liens .
Lessee will not directly or
indirectly create, incur, assume or suffer to exist any lien on or
with respect to the Aircraft. At the time of execution hereof,
there are no liens, security interests, mortgages, claims, charges,
“international interests” (as defined in the Cape Town
Convention or other encumbrances (whether or not registered or
filed at the FAA or the International Registry or elsewhere)
(collectively, “Liens”) in or on the Aircraft, other
than Liens in favor of Lessor or Lessor’s lender.
9. Insurance .
Lessee shall cause the manager of
the Aircraft and the manager of the Aircraft shall obtain and
maintain, at Lessee’s expense, which shall be maintained at
all times on the Aircraft (including the Airframe and Engines),
“all-risk” aircraft physical damage insurance (covering
ground, flight and taxiing exposures) and comprehensive general and
aircraft liability insurance (covering bodily injury and property
damage exposures) including, but not limited to, passenger
liability, third party liability, contractual liability insurance
in such amounts against such risks and in such form, as is
customary for corporations similarly situated as Lessee or
otherwise as shall be reasonably satisfactory to Lessor and with
insurers or recognized responsibility; provided , that such
insurance shall include, without limitation, the following:
(i) “all-risk” physical damage insurance on the
Aircraft in an amount which shall not on any date be less than
Twenty Two Million Eight Hundred Thousand (U.S. $22,800,000) United
States Dollars with war risk coverage (to include seizure,
detention and confiscation coverage) as well as legal liability and
hijacking coverage; (ii) comprehensive aircraft liability
insurance in an amount which shall not on any date be less than Two
Hundred Million (U.S. $200,000,000) United States Dollars and which
shall name Lessor as additional insured; and (iii) coverage
against hijacking and acts of terrorism exposures in an amount
which will be not less than Two Hundred Million (U.S. $200,000,000)
United States Dollars internationally and Two Hundred Million (U.S.
$200,000,000) United States Dollars domestically and which shall
name Lessor as loss payee and which, for liability purposes, shall
name Lessor as additional insured. If the Aircraft is operated
outside the continental
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United States, in addition to the above
requirements, War Risk Insurance, including Confiscation,
Expropriation, Nationalization and Seizure is required to be
maintained. Additionally, each insurance policy shall, among other
things, require that the insurer give Lessor at least thirty
(30) days prior written notice (or such lesser period as may
be applicable in case of war risk insurance)(at each of the
addresses of notice to Lessor set forth in Section 22 hereof)
of any alteration in or cancellation of the terms of such policy,
and require that the interest of Lessor (and Lessor’s lender,
if any) be continued insured regardless of any breach of or
violation by Lessee of any warranties, declarations or conditions
contained in such insurance policy. In no event shall Lessor be
responsible for premiums, warranties, conditions or representations
to any insurer or any agent thereof. The insurance maintained by
the manager of the Aircraft shall be primary without any right of
contribution from insurance which may be maintained by Lessor. At
Lessor’s request, Lessee shall request manager of the
Aircraft to furnish to Lessor a certificate or other evidence
reasonably satisfactory to Lessor that such insurance coverage is
in effect; provided, however, that Lessor shall be under no duty to
ascertain the existence or ade