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AMENDED AND RESTATED AIRCRAFT DRY LEASE AGREEMENT

Lease Agreement

AMENDED AND RESTATED AIRCRAFT DRY LEASE AGREEMENT | Document Parties: LENNAR AIRCRAFT I, LLC | LENNAR CORPORATION | US Home Corporation You are currently viewing:
This Lease Agreement involves

LENNAR AIRCRAFT I, LLC | LENNAR CORPORATION | US Home Corporation

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Title: AMENDED AND RESTATED AIRCRAFT DRY LEASE AGREEMENT
Governing Law: Florida     Date: 2/18/2009
Industry: Construction Services     Sector: Capital Goods

AMENDED AND RESTATED AIRCRAFT DRY LEASE AGREEMENT, Parties: lennar aircraft i  llc , lennar corporation , us home corporation
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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

 

1. Lease

  

3

2. Definitions

  

3

3. Term

  

7

4. Rent; Unconditional Obligations; Security

  

7

5. Disclaimer; Assignment of Warranties

  

9

6. Delivery; Return

  

10

7. Representations and Warranties

  

11

8. Liens

  

13

9. Insurance

  

13

10. Taxes

  

14

11. Compliance with Laws; Location, Operation and Maintenance; Additions

  

17

12. Inspection

  

21

13. Identification

  

21

14. Certain Transactions

  

21

15. Loss or Damage

  

21

16. General Indemnity

  

22

17. Events of Default

  

24

18. Remedies

  

26

19. Lessor’s Right to Perform

  

27

20. Assignment or Sublease

  

27

21. Further Assurances; Financial Information

  

28

22. Notices

  

28

23. Conditions Precedent

  

29

24. Miscellaneous

  

30

25. Truth-in-Leasing

  

32

 

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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

 

4


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.

 

5


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.

 

6


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.

 

7


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

 

8


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


 
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