Lessee’s Representations and Warranties. Lessee acknowledges that each of Lessor and the other Lessor Parties, has entered into this Agreement and the other Operative Documents in full reliance on representations and warranties by Lessee in this Clause 2.1; and Lessee now represents and warrants to Lessor that the following statements are on the date hereof, and on the Delivery Date will be, true and accurate: (a) Lessee is a sociedad anónima promotora de inversiones de capital variable that is duly incorporated, validly existing and in good standing under the laws of the United Mexican States, and has full corporate power and authority to conduct its business as presently conducted, to own or hold under lease its assets, to enter into and perform its obligations under the Lessee’s Documents and to consummate the transactions contemplated by the Lessee’s Documents; (b) Lessee’s organizational documents incorporate provisions that permit, and all necessary authorizations, approvals, consents, licenses, permits and orders of and registrations with any Government Entity, have been duly and unconditionally obtained and are now in full force and effect that are required to authorize, Lessee to sign and deliver, and perform its obligations under and the transactions contemplated by, the Lessee’s Documents; (c) Lessee has duly authorized, executed and delivered this Agreement and this Agreement constitutes, and the other Lessee’s Documents when executed and delivered by Lessee will constitute, legal, valid and binding obligations of Lessee, enforceable in accordance with their respective terms (except to the extent such enforceability may be limited by insolvency, moratorium, bankruptcy, reorganization or other laws affecting the rights of creditors generally); (d) neither the execution and delivery of the Lessee’s Documents by Lessee nor the performance by Lessee of any of the transactions contemplated herein and therein will: (i) contravene or constitute a violation or breach of or a default under any existing law or agreement by which Lessee or any of its assets is bound, any agreement to which it is a party or Lessee’s organizational documents; (ii) cause any limitation on Lessee or its assets or the powers of its directors or officers, whether imposed by or contained in Lessee’s organizational documents or any existing law, agreement or otherwise, to be exceeded; or (iii) result in the creation or imposition of, or oblige Lessee to create, any Lien (other than Permitted Liens) over its undertaking or any of its assets, rights or revenues; (e) except for such filings, registrations and recordings as are specified under this Agreement and the other Lessee’s Documents, it is not necessary or advisable under the laws of the State of Registration or the Habitual Base in order to ensure the validity, effectiveness or enforceability of any Lessee’s Document or to protect the rights of Lessor in the Aircraft or any part thereof that any Lessee’s Document or any other instrument be filed, registered or recorded or that any registration or any other action be taken, and under such laws, the rights of Lessor in the Aircraft will have priority in all respects over the claims of all creditors of Lessee; (f) the obligations of Lessee under the Lessee’s Documents are, or upon execution thereof by Lessee will be, direct, general and unconditional obligations of Lessee and rank, or will rank, at least pari passu with all other present and future unsecured and unsubordinated obligations (including contingent obligations) of Lessee save for obligations mandatorily preferred by law and not by reason of any Lien; (g) no event has occurred that constitutes a contravention of, or default under, any agreement by which Lessee or any of its assets is bound or affected, and that could reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents; (h) no litigation, arbitration or administrative proceeding that could (by itself or together with any other such proceedings or claims) reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents is (to Lessee’s knowledge) presently in progress or pending against Lessee or any of its assets; (i) the unaudited financial statements of Lessee prepared by Lessee’s management for the fiscal year ended December 31, 2010 have been prepared in accordance with Mexican generally accepted accounting principles and practices (“GAAPP”), and when delivered, the audited financial statements of Lessee for the fiscal year ended December 31, 2010 have been prepared in accordance with International Financial Reporting Standards and fairly present the results of its operations for that period and its financial condition at December 31, 2010 and, in particular, to the extent required by International Financial Reporting Standards accurately disclose or reserve against all the liabilities (actual or contingent) of Lessee, and, to Lessee’s knowledge, after reasonable inquiry, there has been no material adverse change to the financial condition of Lessee since December 31, 2010, except as otherwise previously disclosed to Lessor in writing; (j) all necessary returns have been timely delivered by Lessee to the applicable taxation authorities for which the failure to file could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time, Lessee is not in default in the payment of any Taxes shown to be payable on any such returns and no claim is being asserted with respect to Taxes that is not disclosed in the audited financial statements referred to in clause (i) above that if payable, could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time; (k) the financial and other information furnished by or on behalf of Lessee to Lessor and its Affiliates in writing does not, to Lessee’s knowledge, contain any untrue statement of a material fact or omit to state any material fact the omission of which makes the statements therein, in the light of the circumstances under which they were made, misleading, nor omits to disclose any material matter that has or could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry by Lessee; (l) Lessee, under applicable law, is subject to private commercial law and suit, and neither Lessee nor its properties or assets have any right of immunity from suit or execution on the grounds of sovereignty in the United States; (m) no Default or Event of Default has occurred and is continuing; (n) Lessee has not granted to, or registered in favor of, any person other than Lessor an “international interest,” “national interest,” “prospective international interest” (as such terms are defined in the Cape Town Convention) or a de-registration and export request authorization with respect to the Airframe or any Engine; (o) assuming that no part of the assets to be used by Lessor to acquire its interest in the Aircraft or any Lender to provide financing in respect of the Aircraft constitutes assets of an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, a “plan” as defined in Section 4975 of the Code which is subject to Section 4975 of the Code, an entity whose underlying assets include “plan assets” by reason of any such employee benefit plan’s or plan’s investment in such entity, or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is similar to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, the execution and delivery of this Agreement and the other Lessee’s Documents and the transactions contemplated hereby and thereby will be exempt from, or will not involve any transaction which is subject to, the prohibitions of either Section 406 of ERISA or Section 4975 of the Code and will not involve any transaction in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 of the Code; and (p) Lessee has duly appointed and registered an officer of Lessee with the International Registry an administrator to act on behalf of Lessee as a transacting user entity.
Appears in 8 contracts
Samples: Aircraft Lease Agreement (Controladora Vuela Compania De Aviacion, S.A.B. De C.V.), Aircraft Lease Agreement (Controladora Vuela Compania De Aviacion, S.A.B. De C.V.), Aircraft Lease Agreement (Controladora Vuela Compania De Aviacion, S.A.B. De C.V.)
Lessee’s Representations and Warranties. Lessee acknowledges that With respect to each of Lessor Lease, the Equipment subject thereto and the other Lessor Partiesrelated Escrow Agreement, has entered into this Agreement and the other Operative Documents in full reliance on representations and warranties by Lessee in this Clause 2.1; and Lessee now hereby represents and warrants to Lessor that the following statements are on the date hereof, and on the Delivery Date will be, true and accuratethat:
(a) Lessee is a sociedad anónima promotora de inversiones de capital variable that is duly incorporated, validly existing and in good standing under the laws of the United Mexican States, and has full corporate power power, authority and authority legal right to conduct its business as presently conducted, execute and deliver the Lease and the Escrow Agreement and to own or hold under lease its assets, to enter into and perform its obligations under the Lease and the Escrow Agreement, and all such actions have been duly authorized by appropriate findings and actions of Lessee’s Documents and to consummate the transactions contemplated by the Lessee’s Documentsgoverning body;
(b) Lessee’s organizational documents incorporate provisions that permit, and all necessary authorizations, approvals, consents, licenses, permits and orders of and registrations with any Government Entity, have been duly and unconditionally obtained and are now in full force and effect that are required to authorize, Lessee to sign and deliver, and perform its obligations under the Lease and the transactions contemplated by, the Lessee’s Documents;
(c) Lessee has Escrow Agreement have each been duly authorized, executed and delivered this Agreement and this Agreement constitutes, and the other Lessee’s Documents when executed and delivered by Lessee will constitute, and each constitutes a legal, valid and binding obligations obligation of Lessee, enforceable in accordance with their respective terms terms;
(except to c) the extent such enforceability may be Lease and the Escrow Agreement are each authorized under, and the authorization, execution and delivery of the Lease and the Escrow Agreement comply with, all applicable federal, state and local laws and regulations (including, but not limited by insolvencyto, moratoriumall open meeting, bankruptcy, reorganization or other laws affecting the rights of creditors generally)public bidding and property acquisition laws) and all applicable judgments and court orders;
(d) neither the execution execution, delivery and delivery of the Lessee’s Documents by Lessee nor the performance by Lessee of any of its obligations under the transactions contemplated herein Lease and therein will: (i) contravene the Escrow Agreement will not result in a breach or violation of, nor constitute a violation default under, any agreement, lease or breach of or a default under any existing law or agreement by other instrument to which Lessee or any of its assets is bound, any agreement to which it is a party or by which Lessee’s organizational documents; (ii) cause any limitation on Lessee properties may be bound or its assets or the powers of its directors or officers, whether imposed by or contained in Lessee’s organizational documents or any existing law, agreement or otherwise, to be exceeded; or (iii) result in the creation or imposition of, or oblige Lessee to create, any Lien (other than Permitted Liens) over its undertaking or any of its assets, rights or revenuesaffected;
(e) except for such filingsthere is no pending, registrations and recordings as are specified under this Agreement and or to the other best of Lessee’s Documentsknowledge threatened, it is not necessary or advisable under the laws of the State of Registration or the Habitual Base in order to ensure the validity, effectiveness or enforceability litigation of any Lessee’s Document or to protect the rights of Lessor in the Aircraft or any part thereof nature that any Lessee’s Document or any other instrument be filed, registered or recorded or that any registration or any other action be taken, and under such laws, the rights of Lessor in the Aircraft will have priority in all respects over the claims of all creditors of Lessee;
(f) the obligations of Lessee under the Lessee’s Documents are, or upon execution thereof by Lessee will be, direct, general and unconditional obligations of Lessee and rank, or will rank, at least pari passu with all other present and future unsecured and unsubordinated obligations (including contingent obligations) of Lessee save for obligations mandatorily preferred by law and not by reason of any Lien;
(g) no event has occurred that constitutes a contravention of, or default under, any agreement by which Lessee or any of its assets is bound or affected, and that could reasonably be expected to may have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents;
(h) no litigation, arbitration or administrative proceeding that could (by itself or together with any other such proceedings or claims) reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents is (to Lessee’s knowledge) presently in progress or pending against Lessee or any of its assets;
(i) the unaudited financial statements of Lessee prepared by Lessee’s management for the fiscal year ended December 31, 2010 have been prepared in accordance with Mexican generally accepted accounting principles and practices (“GAAPP”), and when delivered, the audited financial statements of Lessee for the fiscal year ended December 31, 2010 have been prepared in accordance with International Financial Reporting Standards and fairly present the results of its operations for that period and its financial condition at December 31, 2010 and, in particular, to the extent required by International Financial Reporting Standards accurately disclose or reserve against all the liabilities (actual or contingent) of Lessee, and, to Lessee’s knowledge, after reasonable inquiry, there has been no material adverse change to the financial condition of Lessee since December 31, 2010, except as otherwise previously disclosed to Lessor in writing;
(j) all necessary returns have been timely delivered by Lessee to the applicable taxation authorities for which the failure to file could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time, Lessee is not in default in the payment of any Taxes shown to be payable on any such returns and no claim is being asserted with respect to Taxes that is not disclosed in the audited financial statements referred to in clause (i) above that if payable, could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time;
(k) the financial and other information furnished by or on behalf of Lessee to Lessor and its Affiliates in writing does not, to Lessee’s knowledge, contain any untrue statement of a material fact or omit to state any material fact the omission of which makes the statements therein, in the light of the circumstances under which they were made, misleading, nor omits to disclose any material matter that has or could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry by Lessee;
(l) Lessee, under applicable law, is subject to private commercial law and suit, and neither Lessee nor its properties or assets have any right of immunity from suit or execution on the grounds of sovereignty in the United States;
(m) no Default or Event of Default has occurred and is continuing;
(n) Lessee has not granted to, or registered in favor of, any person other than Lessor an “international interest,” “national interest,” “prospective international interest” (as such terms are defined in the Cape Town Convention) or a de-registration and export request authorization with respect to the Airframe or any Engine;
(o) assuming that no part of the assets to be used by Lessor to acquire its interest in the Aircraft or any Lender to provide financing in respect of the Aircraft constitutes assets of an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, a “plan” as defined in Section 4975 of the Code which is subject to Section 4975 of the Code, an entity whose underlying assets include “plan assets” by reason of any such employee benefit plan’s or plan’s investment in such entity, or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is similar to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, the execution and delivery of this Agreement Lease and the other Lessee’s Documents and the transactions contemplated hereby and thereby will be exempt from, or will not involve any transaction which is subject to, the prohibitions of either Section 406 of ERISA or Section 4975 of the Code and will not involve any transaction in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 of the CodeEscrow Agreement; and
(pf) Lessee has duly appointed is a state, or a political subdivision thereof, within the meaning of Section 103 of the Internal Revenue Code of 1986 (the “Code”) and registered an officer of Lessee with the International Registry an administrator will do or cause to act on behalf of Lessee be done all things necessary to preserve and keep in full force and effect its existence as a transacting user entitysuch.
Appears in 4 contracts
Samples: Master Equipment Lease Purchase Agreement, Master Equipment Lease Purchase Agreement, Master Equipment Lease Purchase Agreement
Lessee’s Representations and Warranties. Lessee acknowledges that each of Lessor and the other Lessor Parties, has entered into this Agreement and the other Operative Documents in full reliance on representations and warranties by Lessee in this Clause 2.1; and Lessee now represents and warrants to Lessor that the following statements are on the date hereof, and on the Delivery Date will be, true and accurate:
(a) Lessee is a sociedad anónima promotora de inversiones de capital variable that is duly incorporated, validly existing and in good standing under the laws of the United Mexican States, and has full corporate power and authority to conduct its business as presently conducted, to own or hold under lease its assets, to enter into and perform its obligations under the Lessee’s Documents and to consummate the transactions contemplated by the Lessee’s Documents;
(b) Lessee’s organizational documents incorporate provisions that permit, and all necessary authorizations, approvals, consents, licenses, permits and orders of and registrations with any Government Entity, have been duly and unconditionally obtained and are now in full force and effect that are required to authorize, Lessee to sign and deliver, and perform its obligations under and the transactions contemplated by, the Lessee’s Documents;
(c) Lessee has duly authorized, executed and delivered this Agreement and this Agreement constitutes, and the other Lessee’s Documents when executed and delivered by Lessee will constitute, legal, valid and binding obligations of Lessee, enforceable in accordance with their respective terms (except to the extent such enforceability may be limited by insolvency, moratorium, bankruptcy, reorganization or other laws affecting the rights of creditors generally);
(d) neither the execution and delivery of the Lessee’s Documents by Lessee nor the performance by Lessee of any of the transactions contemplated herein and therein will: (i) contravene or constitute a violation or breach of or a default under any existing law or agreement by which Lessee or any of its assets is bound, any agreement to which it is a party or Lessee’s organizational documents; (ii) cause any limitation on Lessee or its assets or the powers of its directors or officers, whether imposed by or contained in Lessee’s organizational documents or any existing law, agreement or otherwise, to be exceeded; or (iii) result in the creation or imposition of, or oblige Lessee to create, any Lien (other than Permitted Liens) over its undertaking or any of its assets, rights or revenues;
(e) except for such filings, registrations and recordings as are specified under this Agreement and the other Lessee’s Documents, it is not necessary or advisable under the laws of the State of Registration or the Habitual Base in order to ensure the validity, effectiveness or enforceability of any Lessee’s Document or to protect the rights of Lessor or Owner in the Aircraft or any part thereof that any Lessee’s Document or any other instrument be filed, registered or recorded or that any registration or any other action be taken, and under such laws, the rights of Lessor and Owner in the Aircraft will have priority in all respects over the claims of all creditors of Lessee;
(f) the obligations of Lessee under the Lessee’s Documents are, or upon execution thereof by Lessee will be, direct, general and unconditional obligations of Lessee and rank, or will rank, at least pari passu with all other present and future unsecured and unsubordinated obligations (including contingent obligations) of Lessee save for obligations mandatorily preferred by law and not by reason of any Lien;
(g) no event has occurred that constitutes a contravention of, or default under, any agreement by which Lessee or any of its assets is bound or affected, and that could reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents;
(h) no litigation, arbitration or administrative proceeding that could (by itself or together with any other such proceedings or claims) reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents is (to Lessee’s knowledge) presently in progress or pending against Lessee or any of its assets;
(i) the unaudited financial statements of Lessee prepared by Lessee’s management for the fiscal year ended December 31, 2010 2011 have been prepared in accordance with Mexican generally accepted accounting principles and practices International Financial Reporting Standards (“GAAPPIFRS”), and when delivered, the audited financial statements of Lessee for the fiscal year ended December 31, 2010 2011 have been prepared in accordance with International Financial Reporting Standards IFRS and fairly present the results of its operations for that period and its financial condition at December 31, 2010 2011 and, in particular, to the extent required by International Financial Reporting Standards IFRS accurately disclose or reserve against all the liabilities (actual or contingent) of Lessee, and, to Lessee’s knowledge, after reasonable inquiry, there has been no material adverse change to the financial condition of Lessee since December 31, 20102011, except as otherwise previously disclosed to Lessor in writing;
(j) all necessary returns have been timely delivered by Lessee to the applicable taxation authorities for which the failure to file could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time, Lessee is not in default in the payment of any Taxes shown to be payable on any such returns and no claim is being asserted with respect to Taxes that is not disclosed in the audited financial statements referred to in clause (i) above that if payable, could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time;
(k) the financial and other information furnished by or on behalf of Lessee to Lessor and its Affiliates in writing does not, to Lessee’s knowledge, contain any untrue statement of a material fact or omit to state any material fact the omission of which makes the statements therein, in the light of the circumstances under which they were made, misleading, nor omits to disclose any material matter that has or could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry by Lessee;
(l) Lessee, under applicable law, is subject to private commercial law and suit, and neither Lessee nor its properties or assets have any right of immunity from suit or execution on the grounds of sovereignty in the United States;
(m) no Default or Event of Default has occurred and is continuing;
(n) Lessee has not granted to, or registered in favor of, any person other than Lessor an “international interest,” “national interest,” “prospective international interest” (as such terms are defined in the Cape Town Convention) or a de-registration and export request authorization with respect to the Airframe or any Engine;
(o) assuming that no part of the assets to be used by Lessor or Owner to acquire its interest in the Aircraft or any Lender to provide financing in respect of the Aircraft constitutes assets of an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, a “plan” as defined in Section 4975 of the Code which is subject to Section 4975 of the Code, an entity whose underlying assets include “plan assets” by reason of any such employee benefit plan’s or plan’s investment in such entity, or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is similar to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, the execution and delivery of this Agreement and the other Lessee’s Documents and the transactions contemplated hereby and thereby will be exempt from, or will not involve any transaction which is subject to, the prohibitions of either Section 406 of ERISA or Section 4975 of the Code and will not involve any transaction in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 of the Code; and
(p) Lessee has duly appointed and registered an officer of Lessee with the International Registry an administrator to act on behalf of Lessee as a transacting user entity.
Appears in 4 contracts
Samples: Aircraft Lease Agreement (Controladora Vuela Compania De Aviacion, S.A.B. De C.V.), Aircraft Lease Agreement (Controladora Vuela Compania De Aviacion, S.A.B. De C.V.), Aircraft Lease Agreement (Controladora Vuela Compania De Aviacion, S.A.B. De C.V.)
Lessee’s Representations and Warranties. Lessee acknowledges that each represents, warrants and certifies as of Lessor and the other Lessor Parties, has entered into this Agreement and the other Operative Documents in full reliance on representations and warranties by Lessee in this Clause 2.1; and Lessee now represents and warrants to Lessor that the following statements are on the date hereof, of execution and on the Delivery Date will be, true and accuratedelivery of each Rental Schedule as follows:
(a) Lessee is a sociedad anónima promotora de inversiones de capital variable that is duly incorporatedorganized, validly existing and in good standing under the laws of the United Mexican Statesstate of its incorporation, and has with full corporate power and authority to conduct its business as presently conducted, to own or hold under lease its assets, to enter into and to pay and perform its obligations under the Lessee’s Documents Rental Schedule and this Master Lease Agreement as incorporated therein by reference, and is duly qualified and in good standing in all other jurisdictions where its failure to consummate so qualify would adversely affect the transactions contemplated by conduct of its business or the Lessee’s Documentsperformance of its obligations under or the enforceablility of the Rental Schedule;
(b) Lessee’s organizational documents incorporate provisions that permitthe Rental Schedule, this Master Lease Agreement and all necessary authorizations, approvals, consents, licenses, permits and orders of and registrations with any Government Entity, related documents have been duly and unconditionally obtained and are now in full force and effect that are required to authorize, Lessee to sign and deliver, and perform its obligations under and the transactions contemplated by, the Lessee’s Documents;
(c) Lessee has duly authorized, executed and delivered this Agreement and this Agreement constitutes, and the other Lessee’s Documents when executed and delivered by Lessee will constitute, legal, valid and binding obligations of Lessee, are enforceable against Lessee in accordance with their respective terms (except to the extent such enforceability may be limited by insolvency, moratorium, bankruptcy, reorganization or other laws affecting the rights and do not and will not contravene any provisions of creditors generally);
(d) neither the execution and delivery of the Lessee’s Documents by Lessee nor the performance by Lessee of any of the transactions contemplated herein and therein will: (i) contravene or constitute a violation or breach of or a default under any existing law Lessee's organizational documents or agreement by which Lessee or any of its assets is boundBy Laws, any agreement to which it is a party or Lessee’s organizational documents; by which it or its property is bound, or any law, regulation or order of any governmental authority;
(iic) cause Lessor's right, title and interest in and to the Rental Schedule, this Master Lease Agreement and the Equipment and the rentals therefrom will not be affected or impaired by the terms of any limitation on agreement or instrument by which Lessee or its assets or the powers of its directors or officers, whether imposed by or contained in Lessee’s organizational documents or any existing law, agreement or otherwise, to be exceeded; or property is bound;
(iiid) result in the creation or imposition no approval of, or oblige Lessee to createfiling with, any Lien (governmental authority or other than Permitted Liens) over its undertaking person is required in connection with Lessee's entering into or any the payment or performance of its assets, rights obligations under the Rental Schedule or revenuesthis Master Lease Agreement as incorporated therein by reference;
(e) except for such filingsthere are no suits or proceedings pending or threatened before any court or governmental agency against or affecting Lessee which, registrations and recordings as are specified under this Agreement and the other if decided adversely to Lessee’s Documents, it is not necessary would materially adversely affect Lessee's business or advisable financial condition or its ability to perform any of its obligations under the laws of the State of Registration Rental Schedule or the Habitual Base in order to ensure the validity, effectiveness or enforceability of any Lessee’s Document or to protect the rights of Lessor in the Aircraft or any part thereof that any Lessee’s Document or any other instrument be filed, registered or recorded or that any registration or any other action be taken, and under such laws, the rights of Lessor in the Aircraft will have priority in all respects over the claims of all creditors of Lessee;this Master Lease Agreement as incorporated therein by reference; and
(f) the obligations of Lessee under the Lessee’s Documents are, or upon execution thereof by Lessee will be, direct, general and unconditional obligations of Lessee and rank, or will rank, at least pari passu with all other present and future unsecured and unsubordinated obligations (including contingent obligations) of Lessee save for obligations mandatorily preferred by law and not by reason of any Lien;
(g) no event has occurred that constitutes a contravention of, or default under, any agreement by which Lessee or any of its assets is bound or affected, and that could reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents;
(h) no litigation, arbitration or administrative proceeding that could (by itself or together with any other such proceedings or claims) reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents is (to Lessee’s knowledge) presently in progress or pending against Lessee or any of its assets;
(i) the unaudited financial statements of Lessee prepared by Lessee’s management for the fiscal year ended December 31, 2010 have been prepared in accordance with Mexican generally accepted accounting principles and practices (“GAAPP”), and when delivered, the audited financial statements of Lessee for the fiscal year ended December 31, 2010 have been prepared in accordance with International Financial Reporting Standards and fairly present the results of its operations for that period and its financial condition at December 31, 2010 and, in particular, to the extent required by International Financial Reporting Standards accurately disclose or reserve against all the liabilities (actual or contingent) of Lessee, and, to Lessee’s knowledge, after reasonable inquiry, there has been no material adverse change to the Lessee's financial condition of Lessee since December 31, 2010, except as otherwise previously disclosed to Lessor in writing;
(j) all necessary returns have been timely delivered by Lessee to the applicable taxation authorities for which the failure to file could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any date of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time, Lessee is not in default in the payment of any Taxes shown to be payable on any such returns and no claim is being asserted with respect to Taxes that is not disclosed in the most recent audited financial statements referred to in clause (i) above that if payable, could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time;
(k) the financial and other information furnished by or on behalf of Lessee to Lessor and its Affiliates in writing does not, to Lessee’s knowledge, contain any untrue statement of a material fact or omit to state any material fact the omission of which makes the statements therein, in the light of the circumstances under which they were made, misleading, nor omits to disclose any material matter that has or could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry by Lessee;
(l) Lessee, under applicable law, is subject to private commercial law and suit, and neither Lessee nor its properties or assets have any right of immunity from suit or execution on the grounds of sovereignty in the United States;
(m) no Default or Event of Default has occurred and is continuing;
(n) Lessee has not granted to, or registered in favor of, any person other than Lessor an “international interest,” “national interest,” “prospective international interest” (as such terms are defined in the Cape Town Convention) or a de-registration and export request authorization with respect to the Airframe or any Engine;
(o) assuming that no part of the assets to be used by Lessor to acquire its interest in the Aircraft or any Lender to provide financing in respect of the Aircraft constitutes assets of an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, a “plan” as defined in Section 4975 of the Code which is subject to Section 4975 of the Code, an entity whose underlying assets include “plan assets” by reason of any such employee benefit plan’s or plan’s investment in such entity, or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is similar to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, the execution and delivery of this Agreement and the other Lessee’s Documents and the transactions contemplated hereby and thereby will be exempt from, or will not involve any transaction which is subject to, the prohibitions of either Section 406 of ERISA or Section 4975 of the Code and will not involve any transaction in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 of the Code; and
(p) Lessee has duly appointed and registered an officer of Lessee with the International Registry an administrator to act on behalf of Lessee as a transacting user entitystatement.
Appears in 4 contracts
Samples: Master Lease Agreement (American Income Fund I-A), Master Lease Agreement (American Income Fund I-D), Master Lease Agreement (American Income Partners v D LTD Partnership)
Lessee’s Representations and Warranties. Lessee acknowledges that each LESSEE represents and warrants, as of Lessor the Effective Date, and the other Lessor Parties, has entered into this Agreement and the other Operative Documents in full reliance on all such representations and warranties by Lessee in this Clause 2.1; and Lessee now represents and warrants to Lessor that the following statements are on the date hereofbeing continuing, and on the Delivery Date will be, true and accuratethat:
(a1) Lessee LESSEE is a sociedad anónima promotora de inversiones de capital variable that is corporation duly incorporated, validly organized and existing and in good standing under the laws Laws of the United Mexican States, Nevada and has full the corporate power and authority to conduct carry on its business as presently conducted, conducted and to own or hold under lease its assets, to enter into and perform its obligations under this Lease;
(2) This Lease and all other Lease Documents to which LESSEE is a party have been duly authorized by all necessary corporate action on the Lessee’s Documents part of LESSEE, does not require any approval of the stockholders of LESSEE (or if such approval is required, such approval has been obtained), and to consummate neither the execution and delivery hereof nor the consummation of the transactions contemplated hereby nor compliance by LESSEE with any of the Lessee’s Documentsterms and provisions hereof will contravene any Law applicable to LESSEE or result in any breach of, or constitute any default under, or result in the creation of, any lien, charge or encumbrance upon any property of LESSEE under any indenture, mortgage, chattel mortgage, deed of trust, conditional sales contract, bank loan or credit agreement, corporate charter or by-law, or other agreement or instrument to which LESSEE is a party or by which LESSEE or its properties or assets may be bound or affected;
(b3) Lessee’s organizational documents incorporate provisions that permitLESSEE has received or has complied with every required consent, approval, order, or authorization of, or registration with, or the giving of prior notice to, any Governmental Entity having jurisdiction with respect to the execution and delivery of this Lease and all necessary authorizations, approvals, consents, licenses, permits other Lease Documents to which LESSEE is a party or the validity and orders of enforceability hereof and registrations with any Government Entity, thereof;
(4) This Lease and all other Lease Documents to which LESSEE is a party have been duly and unconditionally obtained and are now in full force and effect that are required to authorize, Lessee to sign and deliver, and perform its obligations under and the transactions contemplated by, the Lessee’s Documents;
(c) Lessee has duly authorized, executed and delivered this Agreement and this Agreement constitutes, and the other Lessee’s Documents when executed entered into and delivered by Lessee will constituteLESSEE and constitutes a valid, legal, valid legal and binding obligations obligation of LesseeLESSEE, enforceable in accordance with their respective terms (its terms, except to the extent such as enforceability may be limited by insolvency, moratorium, bankruptcy, reorganization reorganization, moratorium or other laws affecting the rights similar Laws and by general principles of creditors generally)equity, whether considered in a proceeding at Law or in equity;
(d5) neither the execution and delivery of the Lessee’s Documents by Lessee nor the performance by Lessee of any of the transactions contemplated herein and therein will: (i) contravene There are no suits or constitute a violation or breach of or a default under any existing law or agreement by which Lessee or any of its assets is bound, any agreement to which it is a party or Lessee’s organizational documents; (ii) cause any limitation on Lessee or its assets or the powers of its directors or officers, whether imposed by or contained in Lessee’s organizational documents or any existing law, agreement or otherwise, to be exceeded; or (iii) result in the creation or imposition ofproceedings pending, or oblige Lessee to create, any Lien (other than Permitted Liens) over its undertaking or any of its assets, rights or revenues;
(e) except for such filings, registrations and recordings as are specified under this Agreement and the other Lessee’s Documents, it is not necessary or advisable under the laws of the State of Registration or the Habitual Base in order to ensure the validity, effectiveness or enforceability of any Lessee’s Document or to protect the rights of Lessor in the Aircraft or any part thereof that any Lessee’s Document or any other instrument be filed, registered or recorded or that any registration or any other action be taken, and under such laws, the rights of Lessor in the Aircraft will have priority in all respects over the claims of all creditors of Lessee;
(f) the obligations of Lessee under the Lessee’s Documents are, or upon execution thereof by Lessee will be, direct, general and unconditional obligations of Lessee and rank, or will rank, at least pari passu with all other present and future unsecured and unsubordinated obligations (including contingent obligations) of Lessee save for obligations mandatorily preferred by law and not by reason of any Lien;
(g) no event has occurred that constitutes a contravention of, or default under, any agreement by which Lessee or any of its assets is bound or affected, and that could reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents;
(h) no litigation, arbitration or administrative proceeding that could (by itself or together with any other such proceedings or claims) reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents is (to Lessee’s knowledge) presently in progress or pending against Lessee or any of its assets;
(i) the unaudited financial statements of Lessee prepared by Lessee’s management for the fiscal year ended December 31, 2010 have been prepared in accordance with Mexican generally accepted accounting principles and practices (“GAAPP”), and when delivered, the audited financial statements of Lessee for the fiscal year ended December 31, 2010 have been prepared in accordance with International Financial Reporting Standards and fairly present the results of its operations for that period and its financial condition at December 31, 2010 and, in particular, to the extent required by International Financial Reporting Standards accurately disclose knowledge of LESSEE, threatened against or reserve against all the liabilities (actual or contingent) of Lesseeaffecting LESSEE, and, to Lessee’s knowledge, after reasonable inquiry, there has been no material adverse change to the financial condition of Lessee since December 31, 2010, except as otherwise previously disclosed to Lessor in writing;
(j) all necessary returns have been timely delivered by Lessee to the applicable taxation authorities for which the failure to file could are reasonably be expected to have a material adverse effect on the financial condition or business of Lessee LESSEE or an adverse effect on Lessee’s upon LESSEE's ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account hereunder;
(6) LESSEE has filed or caused to be filed all other obligations that Lessee must observe material tax returns which are required to be filed by LESSEE and has paid or perform at that time, Lessee is not in default in the payment of any caused to be paid all Taxes shown to be due or payable on said returns or on any such returns assessment received by LESSEE, except those the validity of which is contested by LESSEE in good faith by appropriate proceedings duly instituted and no claim is being asserted with respect to Taxes that is not disclosed in the audited financial statements referred to in clause (i) above that if payable, could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that timediligently prosecuted;
(k7) the financial LESSEE is an "air carrier operating under a certificate of convenience and other information furnished by or on behalf necessity," as such quoted language is used and defined under 11 U.S.C. ss. 1110 ("Section 1110"), and this Lease constitutes a "lease" under Section 1110 and LESSEE is a Certificated Air Carrier pursuant to chapter 447 of Lessee to Lessor and its Affiliates in writing does not, to Lessee’s knowledge, contain any untrue statement of a material fact or omit to state any material fact the omission of which makes the statements therein, in the light Title 49 of the circumstances under which they were made, misleading, nor omits to disclose any material matter that has or could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry by LesseeUnited States Code;
(l) Lessee, under applicable law, is subject to private commercial law and suit, and neither Lessee nor its properties or assets have any right of immunity from suit or execution on the grounds of sovereignty in the United States;
(m) no Default or Event of Default has occurred and is continuing;
(n) Lessee has not granted to, or registered in favor of, any person other than Lessor an “international interest,” “national interest,” “prospective international interest” (as such terms are defined in the Cape Town Convention) or a de-registration and export request authorization with respect to the Airframe or any Engine;
(o) assuming that no part of the assets to be used by Lessor to acquire its interest in the Aircraft or any Lender to provide financing in respect of the Aircraft constitutes assets of an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, a “plan” as defined in Section 4975 of the Code which is subject to Section 4975 of the Code, an entity whose underlying assets include “plan assets” by reason of any such employee benefit plan’s or plan’s investment in such entity, or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is similar to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, the execution and delivery of this Agreement and the other Lessee’s Documents and the transactions contemplated hereby and thereby will be exempt from, or will not involve any transaction which is subject to, the prohibitions of either Section 406 of ERISA or Section 4975 of the Code and will not involve any transaction in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 of the Code; and
(p) Lessee has duly appointed and registered an officer of Lessee with the International Registry an administrator to act on behalf of Lessee as a transacting user entity.
Appears in 3 contracts
Samples: Aircraft Lease Agreement (American Income Fund I-C), Aircraft Lease Agreement (Afg Investment Trust A), Aircraft Lease Agreement (Afg Investment Trust B)
Lessee’s Representations and Warranties. To induce Lessor to enter into this Lease Agreement, and any documents contemplated hereby, Lessee acknowledges that makes the following representations and warranties, each of Lessor which shall survive the execution and the other Lessor Parties, has entered into delivery of this Lease Agreement and the other Operative Documents in full reliance on representations and warranties by Lessee in this Clause 2.1; and Lessee now represents and warrants to Lessor that the following statements are on the date hereof, and on the Delivery Date will be, true and accurateDate:
(ai) Lessee is a sociedad anónima promotora de inversiones de capital variable that corporation duly incorporated under the laws of the Territory of Hawaii and is duly incorporated, validly existing and in good standing under the laws of the United Mexican States, State of Hawaii and has full its chief executive office in Honolulu, Hawaii. Except as set forth on Schedule 4(d)(i) hereto Lessee has all requisite corporate power and authority to conduct carry on its business as presently now conducted, and to own or hold under lease its assetsexecute, to enter into deliver and perform its obligations under this Lease and each Lease Supplement. Lessee is a duly certificated "air carrier" under Section 41102 (former Section 401) and Section 44705 (former Section 604) of the Lessee’s Documents Federal Aviation Act and possesses all necessary licenses or permits required by any Governmental Authority having jurisdiction over Lessee or the Aircraft to permit Lessee to engage in air transportation and to consummate the transactions contemplated by the Lessee’s Documentsperform and comply with its obligations under this Lease, and is duly qualified to do business as a foreign corporation, and is in good standing, in each jurisdiction in which its failure to so qualify would adversely and materially affect it or its ability to carry out its obligations under this Lease;
(bii) Lessee’s organizational documents incorporate provisions that permit, and this Lease has been duly authorized by all necessary authorizations, approvals, consents, licenses, permits and orders of and registrations with any Government Entity, have been duly and unconditionally obtained and are now in full force and effect that are required to authorize, Lessee to sign and deliver, and perform its obligations under and corporate action on the transactions contemplated by, the Lessee’s Documents;
(c) Lessee has duly authorized, executed and delivered this Agreement and this Agreement constitutes, and the other Lessee’s Documents when executed and delivered by Lessee will constitute, legal, valid and binding obligations part of Lessee, enforceable in accordance with their respective terms does not require any approval of stockholders of Lessee (except to the extent or if such enforceability may be limited by insolvencyapproval is required, moratoriumsuch approval has been obtained), bankruptcy, reorganization or other laws affecting the rights of creditors generally);
(d) neither and the execution and delivery hereof, and/or the consummation of the Lessee’s Documents transactions contemplated hereby, and/or compliance by Lessee nor with any of the terms and provisions hereof, do not contravene any provisions of the Articles of Incorporation or By-laws of Lessee, or result in any breach of, or constitute any default under, or result in the creation of any Lien upon any assets or property of Lessee under, any (A) indenture, mortgage, lease, chattel mortgage, deed of trust, conditional sales contract, bank loan, credit agreement or other material agreement or instrument to which Lessee is a party or by which Lessee or its properties may be bound or affected other than the Lien under this Lease and Permitted Liens, or (B) Applicable Law;
(iii) the execution and delivery by Lessee of this Lease, and the performance by Lessee of any of the transactions contemplated herein and therein will: (i) contravene hereby do not require the consent or constitute a violation or breach of or a default under any existing law or agreement by which Lessee or any of its assets is bound, any agreement to which it is a party or Lessee’s organizational documents; (ii) cause any limitation on Lessee or its assets or the powers of its directors or officers, whether imposed by or contained in Lessee’s organizational documents or any existing law, agreement or otherwise, to be exceeded; or (iii) result in the creation or imposition approval of, or oblige Lessee registration with, or the giving or prior notice to createany Person, including any Lien federal, state or foreign governmental authority or entity having appropriate jurisdiction, except (A) any such consent, approval, notice registration, notice or action that has been obtained or as would not affect the validity, enforceability or binding nature of this Lease, and (B) routine reporting requirements of the Securities and Exchange Commission, the FAA, the DOT or other than Permitted Liens) over its undertaking or any of its assets, rights or revenuesGovernmental Authorities after the Delivery Date;
(eiv) this Lease has been duly executed and delivered by Lessee, and this Lease, together with Lease Supplement No. 1 when executed and delivered by Lessee, will constitute legal, valid and binding obligations of Lessee, fully enforceable, except as set forth on Schedule 4(d)(iv), in accordance with their respective terms;
(v) except for such filingsas set forth on Schedule 4(d)(v), registrations and recordings as there are specified under this Agreement and no pending or, to the other knowledge of Lessee’s Documents, threatened investigations, suits or proceedings against it is not necessary or advisable under affecting it or its properties or operations, that, if determined adversely, would materially adversely affect it, the laws consummation of the State of Registration transactions described in, or the Habitual Base in order to ensure performance of its obligations under, this Lease Agreement or affect the validityright, effectiveness title or enforceability of any Lessee’s Document or to protect the rights interest of Lessor in the Aircraft or any part thereof that any Lessee’s Document or any other instrument be filed, registered or recorded or that any registration or any other action be taken, and under such laws, the rights of Lessor in the Aircraft will have priority in all respects over the claims of all creditors of LesseeAircraft;
(fvi) the obligations of except as set forth on Schedule 4(d)(vi), Lessee under the Lessee’s Documents are, or upon execution thereof by Lessee will be, direct, general and unconditional obligations of Lessee and rank, or will rank, at least pari passu with all other present and future unsecured and unsubordinated obligations (including contingent obligations) of Lessee save for obligations mandatorily preferred by law and is not by reason of any Lien;
(g) no event has occurred that constitutes a contravention in violation of, or in default under, any agreement by which Lessee law, ordinance, order, regulation or authorization of any Governmental Authority or any of its assets is bound permit or affectedcertificate issued or granted by any Governmental Authority, and that could reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents;
(h) no litigation, arbitration or administrative proceeding that could (by itself or together with any other such proceedings or claims) reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents is (to Lessee’s knowledge) presently in progress or pending against Lessee or any of its assets;
(i) the unaudited financial statements of Lessee prepared by Lessee’s management for the fiscal year ended December 31, 2010 have been prepared in accordance with Mexican generally accepted accounting principles and practices (“GAAPP”), and when delivered, the audited financial statements of Lessee for the fiscal year ended December 31, 2010 have been prepared in accordance with International Financial Reporting Standards and fairly present the results of its operations for that period and its financial condition at December 31, 2010 and, in particular, to the extent required by International Financial Reporting Standards accurately disclose or reserve against all the liabilities (actual or contingent) of Lessee, and, to Lessee’s knowledge, after reasonable inquiry, there has been no material adverse change to the financial condition of Lessee since December 31, 2010, except as otherwise previously disclosed to Lessor in writing;
(j) all necessary returns have been timely delivered by Lessee to the applicable taxation authorities for which the failure to file could reasonably be expected to have a material adverse effect on the business or condition (financial condition or otherwise) of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time;
(vii) except as set forth in Schedule 4(d)(vii), Lessee is not in default in the payment of any Taxes shown to be payable on any such returns default, and no claim condition exists that with notice or lapse of time or both would constitute a default, under any mortgage, deed of trust, indenture, or other instrument or agreement to which it is being asserted with respect to Taxes a party, or by which it or any of its properties or assets may be bound, that is not disclosed in the audited financial statements referred to in clause (i) above that if payable, could reasonably be expected to would have a material adverse effect on any of the financial condition actions described in, or on its ability to perform its obligations under, this Lease, and it is not in breach of Lessee or an any Applicable Law that would have a material adverse effect on Lessee’s it, or any of the actions described in, or on its ability to observe or perform any of its obligations under the Lessee’s Documentsunder, taking into account all other obligations that Lessee must observe or perform at that timethis Lease;
(kviii) except for the filing for recordation of this Lease, and Lease Supplement No. 1, and the placing on the Aircraft and on each Engine of the plates containing the legends referred to in Section 7(f) hereof, no further filing or recording of this Lease or of any other document (including any financing statement under Article 9 of the Uniform Commercial Code) and no further action is necessary or advisable, under the laws of the United States of America or the State of Hawaii, in order to fully protect and establish Lessor's title to, and interest in, the Aircraft and the Engines as against Lessee or any third parties;
(ix) the financial and other written information furnished by or on behalf of Lessee to Lessor in connection with this Agreement, and its Affiliates in writing the transactions contemplated hereby does not, to Lessee’s knowledge, not contain any untrue statement of a material fact or omit to state any material fact the omission of which makes the statements therein, in the light of the circumstances under which they were made, misleading, nor omits to disclose any material matter that has or could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry by Lesseefact;
(lx) Lessee, under applicable law, is subject to private commercial law and suit, and neither Lessee nor its properties or assets have any right of immunity from suit or execution on the grounds of sovereignty in the United States;
(m) no No Default or Lessee Event of Default has occurred and is continuingcontinuing hereunder;
(nxi) Lessee has assets in excess of $5,000,000.00 according to its most recent financial statement prepared in accordance with generally accepted accounting principles and is not granted to, or registered in favor of, any person other than Lessor an “international interest,” “national interest,” “prospective international interest” (a "consumer" as such terms are that term is defined in Section 17.45 of the Cape Town Convention) or a deTexas Deceptive Trade Practices-registration and export request authorization with respect to the Airframe or any EngineConsumer Protection Act;
(oxii) assuming that no part of the assets to be used by Lessor to acquire its interest in the Aircraft or any Lender to provide financing in respect of the Aircraft constitutes assets of an “employee benefit plan” Lessee is not a consumer as defined in by Hawaii Revised Statutes Section 3(3480-1 (1992 Supp.), and therefore has no right to bring an action or pursue damages based upon unfair or deceptive acts or practices under that Section;
(xiii) of ERISA, which Lessee is subject to Title I of ERISA, a “plan” as defined in Section 4975 of the Code which is subject to Section 4975 of the Code, an entity whose underlying assets include “plan assets” by reason of any such employee benefit plan’s or plan’s investment in such entity, or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is similar to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, the execution and delivery of this Agreement and the other Lessee’s Documents and the transactions contemplated hereby and thereby will be exempt from, or will not involve any transaction which is subject to, the prohibitions of either Section 406 of ERISA or Section 4975 of the Code and will not involve any transaction in connection with which a penalty could be imposed air carrier under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 of the Code14 C.F.R. Part 121; and
(pxiv) Lessee has duly appointed and registered an officer Lessor shall be entitled to the benefits of Lessee Section 1110 of the Bankruptcy Code with respect to its rights of repossession of the International Registry an administrator Aircraft, any Engines, any appliances or spare parts, each as defined in such Section 1110 of the Bankruptcy Code, pursuant to act on behalf of Lessee as a transacting user entitySection 14A hereof.
Appears in 3 contracts
Samples: Aircraft Lease Agreement (Hawaiian Airlines Inc/Hi), Aircraft Lease Agreement (Hawaiian Airlines Inc/Hi), Aircraft Lease Agreement (Hawaiian Airlines Inc/Hi)
Lessee’s Representations and Warranties. The Lessee acknowledges that each of Lessor and the other Lessor Parties, has entered into this Agreement and the other Operative Documents in full reliance on representations and warranties by Lessee in this Clause 2.1; and Lessee now represents and warrants to Lessor that the following statements are on the date hereofthat, and on as of the Delivery Date will be(unless any such representation and warranty is specifically made as of an earlier date, true in which case the Lessee represents and accurate:warrants as of such earlier date):
(a) the Lessee is a sociedad anónima promotora de inversiones de capital variable that is corporation duly incorporated, organized and validly existing and is in good standing under the laws of the United Mexican StatesState of New York, has its principal place of business and chief executive office (as such terms are used in Article 9 of the Uniform Commercial Code) in Indianapolis, Indiana at the address set forth in Section 12.01(a), and is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction where the failure to be so qualified or in good standing would have a materially adverse effect on its business or would impair its ability to perform its obligations under the Lessee Documents;
(b) the Lessee has full corporate power power, authority and authority legal right to conduct its business and operations as presently conducted, currently conducted and to own or hold under lease its assets, properties and to enter into and perform its obligations under the Lessee Documents;
(c) the Lessee is a Certificated Air Carrier;
(d) the Lessee possesses all necessary certificates, franchises, licenses, permits, rights and concessions and consents (collectively "permits") which are necessary to the operation of the routes flown by it and the conduct of its business and operations as currently conducted and each such permit is in full force and effect, except for any such permits the failure to have or maintain which would not have a material adverse effect on the Lessee or its ability to perform its obligations under the Lessee Documents;
(e) the execution, delivery and performance of the Lessee Documents by the Lessee have been duly authorized by all necessary corporate action on the part of the Lessee and do not require any stockholder approval, or approval or consent of any trustee or holder of any indebtedness or obligations of the Lessee’s , and each such Lessee Documents has been duly executed and delivered and constitutes the legal, valid and binding obligations of the Lessee enforceable against it in accordance with the terms thereof except as such enforceability may be limited by bankruptcy, insolvency, or other similar laws or by general equitable principles;
(f) no authorization, consent or approval of or other action by, and no notice to or filing with, any United States federal or state governmental authority or regulatory body is required for the execution, delivery or performance by the Lessee of the Lessee Documents except for such registrations, applications and recordings referred to in the opinion of Daugherty, Fowler, Peregrin & Xxxxxx, a Professional Corporation delivered pursuant to Section 3.01(b)(xvi)(D) and the filings referred to in Section 3.01(j)(ii);
(g) neither the execution, delivery or performance by the Lessee of the Lessee Documents nor compliance with the terms and provisions hereof or thereof, conflicts or will conflict with or results or will result in a breach or violation of any of the terms, conditions or provisions of, or will require any consent (other than the Embraer Warranty Assignment and Consent and the Engine Warranty Assignment and Consent) or approval under, any Applicable Law or the charter documents, as amended, or bylaws, as amended, of the Lessee or any order, writ, injunction or decree of any court or governmental authority against the Lessee or by which it or any of its properties is bound or any indenture, mortgage or contract or other agreement or instrument to which the Lessee is a party or by which it or any of its properties is bound, or constitutes or will constitute a default thereunder or results or will result in the imposition of any Lien upon the Aircraft or any of its properties (other than Permitted Liens), except for any such conflict, breach or default which would not have a material adverse effect on the Lessee or its ability to perform its obligations under the Lessee Documents;
(h) except as disclosed in any of the financial statements referred to in Section 4.01(p) or as otherwise disclosed in writing to the Owner Participant, there are no pending or, to the knowledge of the Lessee, threatened actions, suits, investigations or proceedings against or affecting the Lessee or any of its properties before or by any court, governmental agency, arbitration board, tribunal or other administrative agency which, (A) may reasonably be expected to have a materially adverse effect on the Lessee's consolidated financial condition, business, or operations, or (B) would materially adversely affect the ability of the Lessee to consummate the transactions contemplated by the Lessee’s Documents;
(b) Lessee’s organizational documents incorporate provisions that permit, and all necessary authorizations, approvals, consents, licenses, permits and orders of and registrations with any Government Entity, have been duly and unconditionally obtained and are now in full force and effect that are required to authorize, Lessee to sign and deliver, and perform its obligations under and the transactions contemplated by, the Lessee’s Documents;
(c) Lessee has duly authorized, executed and delivered this Agreement and this Agreement constitutes, and the other Lessee’s Documents when executed and delivered by Lessee will constitute, legal, valid and binding obligations of Lessee, enforceable in accordance with their respective terms (except to the extent such enforceability may be limited by insolvency, moratorium, bankruptcy, reorganization or other laws affecting the rights of creditors generally);
(d) neither the execution and delivery of the Lessee’s Documents by Lessee nor the performance by Lessee of any of the transactions contemplated herein and therein will: (i) contravene or constitute a violation or breach of or a default under any existing law or agreement by which Lessee or any of its assets is bound, any agreement to which it is a party or Lessee’s organizational documents; (ii) cause any limitation on Lessee or its assets or the powers of its directors or officers, whether imposed by or contained in Lessee’s organizational documents or any existing law, agreement or otherwise, to be exceeded; or (iii) result in the creation or imposition of, or oblige Lessee to create, any Lien (other than Permitted Liens) over its undertaking or any of its assets, rights or revenues;
(e) except for such filings, registrations and recordings as are specified under this Agreement and the other Lessee’s Documents, it is not necessary or advisable under the laws of the State of Registration or the Habitual Base in order to ensure the validity, effectiveness or enforceability of any Lessee’s Document or to protect the rights of Lessor in the Aircraft or any part thereof that any Lessee’s Document or any other instrument be filed, registered or recorded or that any registration or any other action be taken, and under such laws, the rights of Lessor in the Aircraft will have priority in all respects over the claims of all creditors of Lessee;
(f) the obligations of Lessee under the Lessee’s Documents are, or upon execution thereof by Lessee will be, direct, general and unconditional obligations of Lessee and rank, or will rank, at least pari passu with all other present and future unsecured and unsubordinated obligations (including contingent obligations) of Lessee save for obligations mandatorily preferred by law and not by reason of any Lien;
(g) no event has occurred that constitutes a contravention of, or default under, any agreement by which Lessee or any of its assets is bound or affected, and that could reasonably be expected to have a material adverse effect on Lessee’s ability to observe Operative Agreements or perform its obligations under the Lessee’s Lessee Documents;
(h) no litigation, arbitration or administrative proceeding that could (by itself or together with any other such proceedings or claims) reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents is (to Lessee’s knowledge) presently in progress or pending against Lessee or any of its assets;
(i) except for (A) the unaudited financial statements registration in the Owner Trustee's name of the Aircraft pursuant to the Transportation Code, (B) the filing with and, where appropriate, recordation by the FAA pursuant to the Transportation Code of the Lease (including Lease Supplement No. 1) and (C) the filing of the financing statement referred to in Section 3.01(k), no further action, including any filing or recording of any document, is necessary or advisable in order to establish the Owner Trustee's title to and interest in the Aircraft and the Lessor's Estate as against the Lessee and any third parties;
(j) the Owner Trustee has received good and marketable title to the Aircraft, free and clear of all Liens, except Permitted Liens;
(k) all premiums which have become due with respect to the insurance required to be provided by the Lessee on or prior to the Delivery Date under Section 9 of the Lease have been paid by the Lessee;
(l) no Default or Event of Default exists and no Event of Loss, or event which with the passage of time would constitute an Event of Loss, exists;
(m) the Aircraft is in such condition so as to enable the airworthiness certificate of such Aircraft to be in good standing under the Transportation Code; the Aircraft has been duly certificated by the FAA as to type and airworthiness; there is in effect with respect to the Aircraft a current and valid airworthiness certificate issued by the FAA pursuant to the Transportation Code;
(n) neither the Lessee nor any subsidiary of the Lessee is an "investment company" or a company "controlled by an investment company" within the meaning of the Investment Company Act of 1940, as amended;
(o) there are no broker's or underwriter's fees payable on behalf of the Lessee in connection with the transactions contemplated in the Operative Agreements, other than those of the Lessee Advisor (as defined in Section 8.01(a)) referred to in Article 8 hereof;
(p) the audited consolidated balance sheet of Lessee prepared by Lessee’s management for the fiscal year ended as of December 31, 2010 1999 and the related consolidated statements of operations and cash flows for the period then ended have been prepared in accordance with Mexican generally accepted accounting principles and practices (“GAAPP”), and when delivered, in the audited financial statements of Lessee for the fiscal year ended December 31, 2010 have been prepared in accordance with International Financial Reporting Standards United States and fairly present in all material respects the financial condition of Lessee and its consolidated subsidiaries as of such date and the results of its operations and cash flows for that period such period, and its financial condition at since December 31, 2010 and, in particular, to the extent required by International Financial Reporting Standards accurately disclose or reserve against all the liabilities (actual or contingent) of Lessee, and, to Lessee’s knowledge, after reasonable inquiry1999, there has been no material adverse change to in such financial condition or operations of Lessee, except for matters disclosed in (a) the financial condition of Lessee since December 31, 2010, except as statements referred to above or (b) otherwise previously disclosed to Lessor in writing;
(j) all necessary returns have been timely delivered writing by Lessee to the applicable taxation authorities for which Owner Participant;
(q) to the failure to file could reasonably be expected to have a material adverse effect on the financial condition best of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time's knowledge, Lessee is not in default under, or in violation of, any Applicable Law, the payment of any Taxes shown to be payable on any such returns and no claim is being asserted with respect to Taxes that is not disclosed in the audited financial statements referred to in clause (i) above that if payable, could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time;
(k) the financial and other information furnished by or on behalf of Lessee to Lessor and its Affiliates in writing does not, to Lessee’s knowledge, contain any untrue statement of a material fact or omit to state any material fact the omission violation of which makes the statements therein, in the light of the circumstances under which they were made, misleading, nor omits would give rise to disclose any material matter that has or could reasonably be expected a Material Adverse Change to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry by Lessee;
(lr) Lessee, under applicable law, is subject to private commercial law and suit, and neither the Lessee nor any Person authorized by the Lessee to act on its properties behalf has directly or assets have indirectly offered any right of immunity from suit or execution on the grounds of sovereignty beneficial interest in the United States;
(m) no Default ownership of the Aircraft or Event of Default has occurred the Lease or any interest in the Trust Estate and is continuing;
(n) Lessee has not granted Trust Agreement, or in any similar security relating to the Aircraft, the Lease, the Trust Estate or the Trust Agreement, for sale to, or registered in favor ofsolicited any offer to acquire any such interest or security from, or has sold any such interest or security to, any person other than Lessor an “international interest,” “national interest,” “prospective international interest” Person in violation of the Securities Act or any applicable state securities laws; and
(s) Owner Trustee, as lessor under the Lease, is entitled to the benefits of Section 1110 (as such terms are defined currently in the Cape Town Conventioneffect) or a de-registration and export request authorization with respect to the Airframe or any Engine;
(o) assuming that no part of the assets to be used by Lessor to acquire its interest in the Aircraft or any Lender to provide financing in respect of the Aircraft constitutes assets of an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, a “plan” as defined in Section 4975 of the Code which is subject to Section 4975 of the Code, an entity whose underlying assets include “plan assets” by reason of any such employee benefit plan’s or plan’s investment in such entity, or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is similar to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, the execution and delivery of this Agreement and the other Lessee’s Documents and the transactions contemplated hereby and thereby will be exempt from, or will not involve any transaction which is subject to, the prohibitions of either Section 406 of ERISA or Section 4975 of the Code and will not involve any transaction in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 of the Code; and
(p) Lessee has duly appointed and registered an officer of Lessee with the International Registry an administrator to act on behalf of Lessee as a transacting user entityAircraft.
Appears in 3 contracts
Samples: Participation Agreement (Republic Airways Holdings Inc), Participation Agreement (Republic Airways Holdings Inc), Participation Agreement (Republic Airways Holdings Inc)
Lessee’s Representations and Warranties. Lessee acknowledges that each of Lessor and the other Lessor Parties, has entered into this Agreement and the other Operative Documents to which Lessor is a party in full reliance on representations and warranties by Lessee in this Clause 2.1; herein, and Lessee now represents and warrants to Lessor as of the date hereof and as of the time of Delivery that the following statements are on the date hereof, and on the Delivery Date will be, true and accurate:
(a) Lessee is a sociedad anónima promotora de inversiones de capital variable that is corporation duly incorporated, validly existing and in good standing under the laws of the United Mexican States, and State of Organization. It has full the corporate power and authority to conduct carry on its business as presently conducted, to own or hold under lease its assets, to enter into and perform its obligations under the Lessee’s Documents and to consummate the transactions contemplated by the Lessee’s Documentshereby and thereby;
(b) Lessee’s organizational documents incorporate provisions that permit, and all necessary action has been taken to authorize, and all necessary authorizations, approvals, consents, licenses, permits and orders of and registrations with any Government Entity, governmental or other authority have been duly and unconditionally obtained and are now in full force and effect that are required to authorize, Lessee to sign and deliver, and perform its obligations under and the transactions contemplated by, the Lessee’s Documents;
(c) Lessee has duly authorized, executed and delivered this Agreement and this Agreement constitutes, and the other Lessee’s Documents constitute, or when executed and delivered by Lessee entered into will constitute, legal, valid and binding obligations of Lessee, enforceable in accordance with their respective terms (except to the extent such enforceability may be limited by insolvency, moratorium, bankruptcy, reorganization or other laws affecting the rights of creditors generally)terms;
(d) neither the execution and delivery of the Lessee’s Documents by Lessee nor the performance by Lessee of any of the transactions contemplated herein and therein will: will (i) contravene or constitute a violation or breach of or a default under any existing law or agreement by which Lessee or any of its assets is bound, any agreement to which it is a party or Lessee’s organizational documents; , (ii) cause any limitation on Lessee or its assets or the powers of its directors or officers, whether imposed by or contained in Lessee’s organizational documents or any existing law, agreement or otherwise, to be exceeded; exceeded or (iii) result in the creation or imposition of, or oblige Lessee to create, any Lien (other than Permitted Liens) over its undertaking or any of its assets, rights or revenues;
(e) except for such filings, registrations and recordings as are specified under the registration of this Agreement Lease and the other Lessee’s DocumentsLease Supplement with the Aviation Authority and the filing of a financing statement under the Uniform Commercial Code in the State of Organization, it is not necessary or advisable under the laws law of the State of Registration or the Habitual Base law of the State of Organization in order to ensure the validity, effectiveness or enforceability of any Lessee’s Document or to protect the rights of Lessor in the Aircraft or any part thereof that any Lessee’s Document or any other instrument be filed, registered or recorded or that any registration or any other action be taken, and under such lawsthe laws of the State of Registration or the laws of the State of Organization, and the rights of Lessor in the Aircraft will have priority in all respects over the claims of all creditors of Lessee;
(f) the obligations of Lessee under the Lessee’s Documents are, or upon execution thereof by Lessee will be, direct, general and unconditional obligations of Lessee and rank, or will rank, at least pari passu with all other present and future unsecured and unsubordinated obligations (including contingent obligations) of Lessee save for obligations mandatorily preferred by law and not by reason of any Lien;
(g) no event has occurred that constitutes a contravention of, or default under, any agreement by which Lessee or any of its assets is bound or affected, and that could reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents;
(h) no litigation, arbitration or administrative proceeding that could (by itself or together with any other such proceedings or claims) reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents is (to Lessee’s knowledge) presently in progress or pending against Lessee or any of its assets;
(i) the unaudited financial statements of Lessee prepared by Lessee’s management for the fiscal year ended December 31, 2010 have been prepared in accordance with Mexican generally accepted accounting principles and practices (“GAAPP”), and when delivered, the audited financial statements of Lessee for the fiscal year ended December 31, 2010 have been prepared in accordance with International Financial Reporting Standards and fairly present the results of its operations for that period and its financial condition at December 31, 2010 and, in particular, to the extent required by International Financial Reporting Standards accurately disclose or reserve against all the liabilities (actual or contingent) of Lessee, and, to Lessee’s knowledge, after reasonable inquiry, there has been no material adverse change to the financial condition of Lessee since December 31, 2010, except as otherwise previously disclosed to Lessor in writing;
(j) all necessary returns have been timely delivered by Lessee to the applicable taxation authorities for which the failure to file could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time, Lessee is not in default in the payment of any Taxes shown to be payable on any such returns and no claim is being asserted with respect to Taxes that is not disclosed in the audited financial statements referred to in clause (i) above that if payable, could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time;
(k) the financial and other information furnished by or on behalf of Lessee to Lessor and its Affiliates in writing does not, to Lessee’s knowledge, contain any untrue statement of a material fact or omit to state any material fact the omission of which makes the statements therein, in the light of the circumstances under which they were made, misleading, nor omits to disclose any material matter that has or could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry by Lessee;
(l) Lessee, under applicable law, is subject to private commercial law and suit, and neither Lessee nor its properties or assets have any right of immunity from suit or execution on the grounds of sovereignty in the United States;
(m) no Default or Event of Default has occurred and is continuing;
(n) Lessee has not granted to, or registered in favor of, any person other than Lessor an “international interest,” “national interest,” “prospective international interest” (as such terms are defined in the Cape Town Convention) or a de-registration and export request authorization with respect to the Airframe or any Engine;
(o) assuming that no part of the assets to be used by Lessor to acquire its interest in the Aircraft or any Lender to provide financing in respect of the Aircraft constitutes assets of an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, a “plan” as defined in Section 4975 of the Code which is subject to Section 4975 of the Code, an entity whose underlying assets include “plan assets” by reason of any such employee benefit plan’s or plan’s investment in such entity, or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is similar to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, the execution and delivery of this Agreement and the other Lessee’s Documents and the transactions contemplated hereby and thereby will be exempt from, or will not involve any transaction which is subject to, the prohibitions of either Section 406 of ERISA or Section 4975 of the Code and will not involve any transaction in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 of the Code; and
(p) Lessee has duly appointed and registered an officer of Lessee with the International Registry an administrator to act on behalf of Lessee as a transacting user entity.may be
Appears in 2 contracts
Samples: Aircraft Lease Agreement (Gulfstream International Group Inc), Aircraft Lease Agreement (Gulfstream International Group Inc)
Lessee’s Representations and Warranties. Lessee acknowledges that each of Lessor and the other Lessor Parties, has entered into this Agreement and the other Operative Documents in full reliance on representations and warranties by Lessee in this Clause 2.1; and Lessee now represents and warrants (and if requested by Lessor, promptly will provide supporting documents to Lessor the effect and an opinion of counsel substantially in the form requested by Lessor) that the following statements are on as of the date hereofthat Lessee signs this Master Lease, as of any date that Lessor makes a payment to a Vendor prior to the date all Equipment has been accepted for lease hereunder, as of each date that any Equipment is accepted for lease hereunder and on as of each Lease Commencement Date pursuant to a Rental Schedule hereunder: (i) all items of the Delivery Date will beEquipment are new and unused as of the Lease Commencement Date, true and accurate:
unless otherwise specified in the applicable Rental Schedule in which event the specified items of the Equipment shall have been delivered new to Lessee by their suppliers not more than 90 days prior to their Lease Term Commencement; (aii) Lessee is a sociedad anónima promotora de inversiones de capital variable that is duly incorporatedorganized, validly existing and in good standing under the laws of the United Mexican Statesjurisdiction of its organization, and is qualified and in good standing to do business wherever necessary to carry on its present business and operations, including the jurisdictions where the Equipment is or will be located; (iii) Lessee has full corporate the power and authority to conduct its business as presently conducted, to own or hold under lease its assets, to enter into this Lease and the other instruments and documents executed by Lessee in connection herewith (together with this Lease, the "Transactional Documents") and to pay and perform its obligations under this Lease and the Lessee’s other Transactional Documents; (iv) this Lease and the other Transactional Documents and to consummate the transactions contemplated by the Lessee’s Documents;
(b) Lessee’s organizational documents incorporate provisions that permit, and all necessary authorizations, approvals, consents, licenses, permits and orders of and registrations with any Government Entity, have been duly and unconditionally obtained and are now in full force and effect that are required to authorize, Lessee to sign and deliver, and perform its obligations under and the transactions contemplated by, the Lessee’s Documents;
(c) Lessee has duly authorized, executed and delivered this Agreement and this Agreement constitutesby Lessee, and constitute the other Lessee’s Documents when executed and delivered by Lessee will constitutevalid, legal, valid legal and binding obligations of Lessee, Lessee enforceable in accordance with their respective terms terms; (except v) no vote or consent of, or notice to, the holders of any class of stock of Lessee is required, or if required, such vote or consent has been obtained or given, to authorize the extent such enforceability may be limited execution, delivery and performance of this Lease and the other Transactional Documents by insolvency, moratorium, bankruptcy, reorganization or other laws affecting the rights of creditors generally);
Lessee; (dvi) neither the execution and delivery by Lessee of this Lease or the other Transactional Documents, nor the consummation by Lessee of the Lessee’s Documents transactions contemplated hereby or thereby, nor compliance by Lessee nor with the performance by Lessee provisions hereof or thereof, conflicts with or results in a breach of any of the transactions contemplated herein and therein will: (i) contravene provisions of any Certificate of Incorporation or constitute By-laws or partnership or trust agreement or certificate of Lessee, or of any applicable law, judgment, order, writ, injunction, decree, award, rule or regulation of any court, administrative agency or other governmental authority, or of any indenture, mortgage, deed of trust, other agreement or instrument of any nature to which Lessee is a violation party or breach of by which it or its property is bound or affected or pursuant to which it is constituted, or constitutes a default under any existing law thereof or agreement by which Lessee or any of its assets is bound, any agreement to which it is a party or Lessee’s organizational documents; (ii) cause any limitation on Lessee or its assets or the powers of its directors or officers, whether imposed by or contained in Lessee’s organizational documents or any existing law, agreement or otherwise, to be exceeded; or (iii) will result in the creation of any lien, charge, security interest or imposition ofother encumbrance upon any of the Equipment, other than the interests therein of Lessor or any Assignee (as hereinafter defined), or oblige upon any other right or property of Lessee or will in any manner adversely affect Lessor's or any Assignee's right, title and interest in any of the Equipment; (vii) no consent, approval, withholding of objection or other authorization of or by any court, administrative agency, other governmental authority or any other Person is required, except such consents, approvals or other authorizations which have been duly obtained and are in full force and effect and copies of which have been furnished Lessor, in connection with the execution, delivery or performance by Lessee, or the consummation by Lessee, of the transactions contemplated by this Lease and the other Transactional Documents; (viii) there are no actions, suits or proceedings pending, or, to the knowledge of Lessee, threatened, in any court or before any administrative agency or other governmental authority against or affecting Lessee, which, if adversely decided would or could, individually or in the aggregate, materially and adversely affect the financial or other condition, business, operations, properties, assets or prospects of Lessee or the ability of Lessee to create, any Lien (other than Permitted Liens) over its undertaking or perform any of its assetsobligations under this Lease or under the other Transactional Documents, rights or revenues;
(e) except for any such filingsactions, registrations and recordings as are specified under this Agreement and suits or proceedings that Lessee has described in writing to Lessor; (ix) no Event of Default or event or condition which upon the other Lessee’s Documents, it is not necessary or advisable under the laws passage of the State of Registration or the Habitual Base in order to ensure the validity, effectiveness or enforceability of any Lessee’s Document or to protect the rights of Lessor in the Aircraft or any part thereof that any Lessee’s Document or any other instrument be filed, registered or recorded or that any registration or any other action be taken, and under such lawstime, the rights giving of Lessor in the Aircraft will have priority in all respects over the claims of all creditors of Lessee;
(f) the obligations of Lessee under the Lessee’s Documents arenotice, or upon execution thereof by Lessee will beboth, directwould constitute an Event of Default, general and unconditional obligations of Lessee and rank, exists or will rank, at least pari passu with all other present and future unsecured and unsubordinated obligations is continuing; (including contingent obligationsx) of Lessee save for obligations mandatorily preferred by law and not by reason of any Lien;
(g) no event has occurred that constitutes a contravention of, or default under, any agreement by which Lessee or any of its assets is bound or affected, and that could reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents;
(h) no litigation, arbitration or administrative proceeding that could (by itself or together with any other such proceedings or claims) reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents is (to Lessee’s knowledge) presently in progress or pending against Lessee or any of its assets;
(i) the unaudited financial statements of Lessee prepared by Lessee’s management for the fiscal year ended December 31, 2010 have been prepared in accordance with Mexican generally accepted accounting principles and practices (“GAAPP”), and when delivered, the audited financial statements of Lessee for the fiscal year ended December 31, 2010 have been prepared in accordance with International Financial Reporting Standards and fairly present the results of its operations for that period and its financial condition at December 31, 2010 and, in particular, to the extent required by International Financial Reporting Standards accurately disclose or reserve against all the liabilities (actual or contingent) of Lessee, and, to Lessee’s knowledge, after reasonable inquiry, there has been no material adverse change or threatened change in Lessee's, any Guarantor's or any Manufacturer's financial or other condition, business, operations, properties, assets or prospects since the date of Lessee's, such Guarantor's or Manufacturer's most recent financial statements reported on by an independent public accounting firm prior to the date of this Master Lease, since the dates of each such Person's interim and annual financial statements, if any, subsequent to such prior statements, or from the written information that has been supplied to Lessor by Lessee, any Guarantor or such Manufacturer; (xi) Lessee possesses any and all authorizations, certifications and licenses which are or may be required to use and operate the Equipment; (xii) the actual Acquisition Cost pursuant to the applicable Rental Schedule of each item of the Equipment does not exceed the fair and usual price for like quantity purchases of such item and reflects all discounts, rebates and allowances for the Equipment given to Lessee, any Guarantor or any affiliate of Lessee or any Guarantor by any Vendor or other Person including, without limitation, discounts for advertising, prompt payment, testing or other services; (xiii) all information supplied to Lessor by Lessee or any Guarantor is correct and does not omit any statement necessary to make the information supplied not misleading; and (xiv) the financial statements of Lessee and any Guarantor have been prepared in accordance with generally accepted accounting principles consistently applied and accurately and completely present the financial condition and the results of operations of Lessee since December 31, 2010, except as otherwise previously disclosed to Lessor in writing;
(j) all necessary returns have been timely delivered and such Guarantors at the dates of and for the periods covered by Lessee to the applicable taxation authorities for which the failure to file could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time, Lessee is not in default in the payment of any Taxes shown to be payable on any such returns and no claim is being asserted with respect to Taxes that is not disclosed in the audited financial statements referred to in clause (i) above that if payable, could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time;
(k) the financial and other information furnished by or on behalf of Lessee to Lessor and its Affiliates in writing does not, to Lessee’s knowledge, contain any untrue statement of a material fact or omit to state any material fact the omission of which makes the statements therein, in the light of the circumstances under which they were made, misleading, nor omits to disclose any material matter that has or could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry by Lessee;
(l) Lessee, under applicable law, is subject to private commercial law and suit, and neither Lessee nor its properties or assets have any right of immunity from suit or execution on the grounds of sovereignty in the United States;
(m) no Default or Event of Default has occurred and is continuing;
(n) Lessee has not granted to, or registered in favor of, any person other than Lessor an “international interest,” “national interest,” “prospective international interest” (as such terms are defined in the Cape Town Convention) or a de-registration and export request authorization with respect to the Airframe or any Engine;
(o) assuming that no part of the assets to be used by Lessor to acquire its interest in the Aircraft or any Lender to provide financing in respect of the Aircraft constitutes assets of an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, a “plan” as defined in Section 4975 of the Code which is subject to Section 4975 of the Code, an entity whose underlying assets include “plan assets” by reason of any such employee benefit plan’s or plan’s investment in such entity, or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is similar to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, the execution and delivery of this Agreement and the other Lessee’s Documents and the transactions contemplated hereby and thereby will be exempt from, or will not involve any transaction which is subject to, the prohibitions of either Section 406 of ERISA or Section 4975 of the Code and will not involve any transaction in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 of the Code; and
(p) Lessee has duly appointed and registered an officer of Lessee with the International Registry an administrator to act on behalf of Lessee as a transacting user entitystatements.
Appears in 2 contracts
Samples: Master Equipment Lease Agreement (Orthovita Inc), Master Equipment Lease Agreement (Cinema Ride Inc)
Lessee’s Representations and Warranties. Lessee acknowledges that each of Lessor and the other Lessor Parties, has entered into this Agreement and the other Operative Documents in full reliance on representations and warranties by Lessee in this Clause 2.1; and Lessee now hereby represents and warrants to Lessor that the following statements are on as of the date hereofof this Lease, and on throughout the Delivery Date will be, true and accurate:
Lease Term: (a) Lessee is the entity indicated in this Lease; (b) Lessee is a sociedad anónima promotora de inversiones de capital variable that State or a fully constituted political subdivision or agency of the State in which Lessee is located; (c) Lessee is duly incorporated, validly organized and existing and in good standing under the Constitution and laws of the United Mexican States, and has full corporate power and authority to conduct its business as presently conducted, to own or hold under lease its assets, State in which Lessee is located; (d) Lessee is authorized to enter into and perform its carry out Lessee’s obligations under the Lessee’s Documents and to consummate the transactions contemplated by the Lessee’s Documents;
(b) Lessee’s organizational this Lease, any documents incorporate provisions that permit, and all necessary authorizations, approvals, consents, licenses, permits and orders of and registrations with any Government Entity, have been duly and unconditionally obtained and are now in full force and effect that are required to authorize, Lessee to sign and deliver, and perform its obligations under and the transactions contemplated by, the Lessee’s Documents;
(c) Lessee has duly authorized, executed and delivered this Agreement and this Agreement constitutes, and the other Lessee’s Documents when executed and delivered by Lessee will constitute, legal, valid and binding obligations of Lessee, enforceable in accordance with their respective terms (except relative to the extent such enforceability may be limited by insolvency, moratorium, bankruptcy, reorganization or other laws affecting the rights of creditors generally);
(d) neither the execution and delivery acquisition of the Lessee’s Documents by Lessee nor the performance by Lessee of any of the transactions contemplated herein Equipment and therein will: (i) contravene or constitute a violation or breach of or a default under any existing law or agreement by which Lessee or any of its assets is bound, any agreement to which it is a party or Lessee’s organizational documents; (ii) cause any limitation on Lessee or its assets or the powers of its directors or officers, whether imposed by or contained in Lessee’s organizational documents or any existing law, agreement or otherwise, to be exceeded; or (iii) result in the creation or imposition of, or oblige Lessee to create, any Lien (other than Permitted Liens) over its undertaking or any of its assets, rights or revenues;
(e) except for such filings, registrations and recordings as are specified under this Agreement and the other Lessee’s Documents, it is not necessary or advisable under the laws of the State of Registration or the Habitual Base in order to ensure the validity, effectiveness or enforceability of any Lessee’s Document or to protect the rights of Lessor in the Aircraft or any part thereof that any Lessee’s Document or any other instrument be filed, registered or recorded or that any registration or any other action be taken, and under such laws, the rights of Lessor in the Aircraft will have priority in all respects over the claims of all creditors of Lessee;
(f) the obligations of Lessee under the Lessee’s Documents are, or upon execution thereof by Lessee will be, direct, general and unconditional obligations of Lessee and rank, or will rank, at least pari passu with all other present and future unsecured and unsubordinated obligations (including contingent obligations) of Lessee save for obligations mandatorily preferred by law and not by reason of any Lien;
(g) no event has occurred that constitutes a contravention of, or default under, any agreement by which Lessee or any of its assets is bound or affected, and that could reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents;any
(h) no litigationLessee has complied fully with all applicable law governing open meetings, arbitration or administrative proceeding that could (by itself or together public bidding and appropriations required in connection with any other such proceedings or claims) reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under this Lease and the Lessee’s Documents is (to Lessee’s knowledge) presently in progress or pending against Lessee or any acquisition of its assets;
the Equipment; (i) the unaudited financial statements of Lessee prepared by Lessee’s management for the fiscal year ended December 31, 2010 have been prepared in accordance with Mexican generally accepted accounting principles obligations to remit Rent under this Lease constitutes a current expense and practices (“GAAPP”)not a debt under applicable state law and no provision of this Lease constitutes a pledge of Lessee’s tax or general revenues, and when delivered, any provision which is so constructed by a court of competent jurisdiction is void from the audited financial statements inception of Lessee for the fiscal year ended December 31, 2010 have been prepared in accordance with International Financial Reporting Standards and fairly present the results of its operations for that period and its financial condition at December 31, 2010 and, in particular, to the extent required by International Financial Reporting Standards accurately disclose or reserve against all the liabilities (actual or contingent) of Lessee, and, to Lessee’s knowledge, after reasonable inquiry, there has been no material adverse change to the financial condition of Lessee since December 31, 2010, except as otherwise previously disclosed to Lessor in writing;
this lease; (j) all necessary returns have been timely delivered by Lessee payments due and to the applicable taxation authorities for which the failure to file could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on become due during Lessee’s ability to observe or perform any current fiscal year are within the fiscal budget of its obligations under such year, and are included within an unrestricted and unencumbered appropriation currently available for the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time, Lessee is not in default in lease of the payment of any Taxes shown to be payable on any such returns and no claim is being asserted with respect to Taxes that is not disclosed in the audited financial statements referred to in clause (i) above that if payable, could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time;Equipment; and
(k) the all financial and other information furnished by or on behalf of Lessee has provided to Lessor is true and its Affiliates in writing does not, to accurate and provides a good representation of Lessee’s knowledge, contain any untrue statement of a material fact or omit to state any material fact the omission of which makes the statements therein, in the light of the circumstances under which they were made, misleading, nor omits to disclose any material matter that has or could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry by Lessee;
(l) Lessee, under applicable law, is subject to private commercial law and suit, and neither Lessee nor its properties or assets have any right of immunity from suit or execution on the grounds of sovereignty in the United States;
(m) no Default or Event of Default has occurred and is continuing;
(n) Lessee has not granted to, or registered in favor of, any person other than Lessor an “international interest,” “national interest,” “prospective international interest” (as such terms are defined in the Cape Town Convention) or a de-registration and export request authorization with respect to the Airframe or any Engine;
(o) assuming that no part of the assets to be used by Lessor to acquire its interest in the Aircraft or any Lender to provide financing in respect of the Aircraft constitutes assets of an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, a “plan” as defined in Section 4975 of the Code which is subject to Section 4975 of the Code, an entity whose underlying assets include “plan assets” by reason of any such employee benefit plan’s or plan’s investment in such entity, or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is similar to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, the execution and delivery of this Agreement and the other Lessee’s Documents and the transactions contemplated hereby and thereby will be exempt from, or will not involve any transaction which is subject to, the prohibitions of either Section 406 of ERISA or Section 4975 of the Code and will not involve any transaction in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 of the Code; and
(p) Lessee has duly appointed and registered an officer of Lessee with the International Registry an administrator to act on behalf of Lessee as a transacting user entitycondition.
Appears in 2 contracts
Samples: Lease Agreement, Lease Agreement
Lessee’s Representations and Warranties. Lessee acknowledges that each of Lessor hereby makes the following representations and the other Lessor Partieswarranties, has entered into this Agreement and the other Operative Documents in full reliance on which representations and warranties by Lessee in shall survive the execution and delivery of this Clause 2.1; Lease and Lessee now represents and warrants to Lessor that the following statements are on delivery of the date hereof, and on the Delivery Date will be, true and accurateAircraft:
(ai) Lessee is a sociedad anónima promotora de inversiones de capital variable that is corporation duly incorporatedorganized, validly and existing and in good standing under the laws Laws of the United Mexican States, Country of Organization and has full the corporate power and authority to conduct carry on its business as presently conducted, conducted and to own or hold under lease its assets, to enter into and perform its obligations under this Lease;
(ii) this Lease has been duly authorized by all necessary corporate action on the Lessee’s Documents part of Lessee and to consummate does not require any approval of stockholders of Lessee (or if such approval is required, such approval has been obtained), and neither the execution and delivery hereof nor the consummation of the transactions contemplated hereby nor compliance by Lessee with any of the Lessee’s Documentsterms and provisions hereof will contravene any Law applicable to Lessee or result in any breach of, or constitute any default under, or result in the creation of any lien, charge or encumbrance upon any property of Lessee under, any credit agreement or instrument, corporate charter or by-law or other agreement or instrument to which Lessee is a party or by which Lessee or its properties or assets are bound or affected;
(biii) Lessee’s organizational documents incorporate provisions that permitLessee has received every consent, approval or authorization of, and has given every notice to, each Governmental Entity having jurisdiction with respect to the execution, delivery or performance of this Lease (including all necessary monetary and other obligations hereunder) that is required for Lessee to execute and deliver this Lease and each such consent, approval or authorization is valid and effective and has not been revoked, and on or before the Delivery Date Lessee will have received such consents, approvals or authorizations, approvals, consents, licenses, permits and orders of and registrations with any Government Entity, or will have been duly and unconditionally obtained and are now given such notices in full force and effect that are required order to authorize, Lessee to sign and deliver, and perform its obligations under and the transactions contemplated by, the Lessee’s Documentshereby;
(civ) Lessee this Lease (including Letter Agreement No.
1) has been duly authorized, executed and delivered this Agreement and this Agreement constitutesby Lessee, and the other Lessee’s Documents Lease does, and the Lease Supplement when executed and delivered by Lessee will constitutewill, constitute legal, valid and binding obligations of Lessee, enforceable in accordance with their respective terms terms, except as enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally, and, to the extent that certain remedies require or may require enforcement by a court of equity, by such principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) as a court having jurisdiction may impose and by laws which may affect some of such remedies but which do not make the available remedies inadequate for the substantial realization of the benefits provided herein;
(v) there are no suits or proceedings pending or, to the knowledge of Lessee, threatened in any court or before any regulatory commission, board or other administrative Governmental Entity against or affecting Lessee which would reasonably be expected to materially and adversely affect Lessee's ability to perform its obligations hereunder;
(vi) Lessee has filed or caused to be filed all tax returns which are required to be filed by it, and has paid or caused to be paid all Taxes shown to be due or payable on said returns or on any assessment received by Lessee, except to the extent such enforceability may be limited the same are being contested by insolvency, moratorium, bankruptcy, reorganization or other laws affecting the rights of creditors generally)Lessee in good faith by appropriate proceedings;
(dvii) neither except for compliance with the execution rules and delivery regulations of the Lessee’s Documents by Lessee nor DAC with respect to the performance by Lessee filing for recordation of this Lease and the Lease Supplement, and the placing on the Aircraft and on each Engine of the plates containing the legends referred to in Section 6(f) hereof, no further filing or recording of this Lease or of any other document and no further action, are necessary under the Laws of any Governmental Entity (including without limitation any Governmental Entity of the transactions contemplated herein Government of Organization or the Government of Registration) in order to (A) fully protect and therein will: (i) contravene or constitute a violation or breach of or a default under any existing law or agreement by which establish Owner's title to the Aircraft, and Owner's and Lessor's interests in and property rights with respect to the Aircraft as against Lessee or any of its assets is bound, any agreement to which it is a third party or Lessee’s organizational documents; (ii) cause any limitation on Lessee or its assets or the powers of its directors or officers, whether imposed by or contained in Lessee’s organizational documents or any existing law, agreement or otherwise, to be exceeded; or (iii) result in the creation or imposition of, or oblige Lessee to create, any Lien (other than Permitted Liens) over its undertaking or any of its assets, rights or revenues;
(e) except for such filings, registrations and recordings as are specified under this Agreement and the other Lessee’s Documents, it is not necessary or advisable under the laws of the State of Registration or the Habitual Base in order to ensure the validity, effectiveness or enforceability of any Lessee’s Document or to protect the that property rights of Owner and Lessor in the Aircraft or any part thereof that any Lessee’s Document or any other instrument be filed, registered or recorded or that any registration or any other action be taken, and under such laws, the rights of Lessor in the Aircraft therein will have priority in all respects over the claims of all creditors of Lessee, or (B) ensure the validity, effectiveness and enforceability of this Lease;
(fviii) the obligations of Lessee under the Lessee’s Documents are, or upon execution thereof by Lessee will be, direct, general and unconditional obligations of Lessee and rank, or will rank, at least pari passu with all other present and future unsecured and unsubordinated obligations (including contingent obligations) of Lessee save for obligations mandatorily preferred by law and not by reason of any Lien;
(g) no event has occurred that constitutes a contravention of, or default under, any agreement by which Lessee or any of its assets is bound or affected, and that could reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents;
(h) no litigation, arbitration or administrative proceeding that could (by itself or together with any other such proceedings or claims) reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents is (to Lessee’s knowledge) presently in progress or pending against Lessee or any of its assets;
(i) the unaudited financial statements of Lessee prepared by Lessee’s management for the fiscal year ended December 31, 2010 have been prepared in accordance with Mexican generally accepted accounting principles and practices (“GAAPP”), and when delivered, the audited financial statements of Lessee for the fiscal year ended December 31, 2010 have been prepared in accordance with International Financial Reporting Standards and fairly present the results of its operations for that period and its financial condition at December 31, 2010 and, in particular, to the extent required by International Financial Reporting Standards accurately disclose or reserve against all the liabilities (actual or contingent) of Lessee, and, to Lessee’s knowledge, after reasonable inquiry, there has been no material adverse change to the financial condition of Lessee since December 31, 2010, except as otherwise previously disclosed to Lessor in writing;
(j) all necessary returns have been timely delivered by Lessee to the applicable taxation authorities for which the failure to file could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time, Lessee is not in default in the payment performance of any Taxes shown to be payable on any such returns and no claim is being asserted with respect to Taxes that is not disclosed in the audited financial statements referred to in clause (i) above that if payable, could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations (A) for the payment of indebtedness for borrowed money or of any interest or premium thereon or (B) for the payment of rent under the Lessee’s Documentsany lease or agreement to lease real, taking into account all other personal or mixed property, in each case in respect of obligations that Lessee must observe or perform at that timein amounts in excess of **Material Redacted**;
(kix) the financial and other information furnished by or on behalf of Lessee to Lessor and its Affiliates in writing does not, to Lessee’s knowledge, contain any untrue statement of a material fact or omit to state any material fact Maintenance Program for the omission of which makes the statements therein, in the light of the circumstances under which they were made, misleading, nor omits to disclose any material matter that has or could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents and Aircraft complies with all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry by LesseeDAC requirements;
(lx) Lesseethere are no withholding or other Taxes of the Country of Registration to be deducted from any payment to be made by Lessee under this Lease; provided that Lessor is, and remains, an entity organized under applicable lawthe laws of a country which has in effect a tax reciprocity treaty or agreement with Panama which so provides;
(xi) the choice of law to govern this Lease, as specified in Section 20(b) hereof, is a valid choice of law and such choice will be upheld in the courts of the Country of Organization and the Country of Registration; and
(xii) Lessee is subject to private commercial law and suitsuit under the Laws of the Country of Organization and the Country of Registration. Lessee is not entitled to sovereign immunity under the Laws of the Country of Organization, the Country of Registration or such other jurisdiction, and neither Lessee nor its properties or assets have any the right of immunity from suit or execution on the grounds of sovereignty in the Country of Organization, the Country of Registration, the United States;
States of America or any other jurisdiction. To the extent that Lessee, in any jurisdiction in which proceedings may at any time be taken for the determination of any question arising under or for the enforcement of this Lease (mincluding any interlocutory proceedings or the execution of any judgment or award arising therefrom), may be entitled to claim or otherwise be accorded for itself or its property, assets or revenues immunity from suit or attachment (whether in aid of execution, before judgment or otherwise) no Default or Event of Default has occurred other legal process, and is continuing;
(n) Lessee has not granted toto the extent that in any such jurisdiction, there may be attributed to Lessee, or registered in favor ofits property, any person other than Lessor an “international interest,” “national interest,” “prospective international interest” assets or revenues such immunity (as whether or not claimed), Lessee hereby irrevocably agrees not to claim and waives such terms are defined in the Cape Town Convention) or a de-registration and export request authorization with respect immunity to the Airframe or any Engine;
(o) assuming that no part fullest extent permitted by the law of the assets to be used by Lessor to acquire its interest in the Aircraft or any Lender to provide financing in respect of the Aircraft constitutes assets of an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, a “plan” as defined in Section 4975 of the Code which is subject to Section 4975 of the Code, an entity whose underlying assets include “plan assets” by reason of any such employee benefit plan’s or plan’s investment in such entity, or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is similar to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, the execution and delivery of this Agreement and the other Lessee’s Documents and the transactions contemplated hereby and thereby will be exempt from, or will not involve any transaction which is subject to, the prohibitions of either Section 406 of ERISA or Section 4975 of the Code and will not involve any transaction in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 of the Code; and
(p) Lessee has duly appointed and registered an officer of Lessee with the International Registry an administrator to act on behalf of Lessee as a transacting user entityjurisdiction.
Appears in 2 contracts
Samples: Aircraft Lease Agreement (Copa Holdings, S.A.), Aircraft Lease Agreement (Copa Holdings, S.A.)
Lessee’s Representations and Warranties. Lessee acknowledges that each of Lessor hereby makes the following representations and the other Lessor Partieswarranties, has entered into this Agreement and the other Operative Documents in full reliance on which representations and warranties by Lessee in shall survive the execution and delivery of this Clause 2.1; Lease and Lessee now represents and warrants to Lessor that the following statements are on delivery of the date hereof, and on the Delivery Date will be, true and accurateAircraft:
(ai) Lessee is a sociedad anónima promotora de inversiones de capital variable that is corporation duly incorporated, organized and validly existing and in good standing under the laws Laws of the United Mexican States, State of Florida and has full the corporate power and authority to conduct carry on its business as presently conducted, conducted and to own or hold under lease its assets, to enter into and perform its obligations under this Lease;
(ii) this Lease has been duly authorized by all necessary corporate action on the Lessee’s Documents part of Lessee and to consummate does not require any approval of stockholders of Lessee (or if such approval is required, such approval has been obtained), and neither the execution and delivery hereof and thereof nor the consummation of the transactions contemplated hereby and thereby nor compliance by Lessee with any of the Lessee’s Documentsterms and provisions hereof and thereof will contravene any Law applicable to Lessee or result in any breach of, or constitute any default under, or result in the creation of any Lien, charge or encumbrance upon any property of Lessee under, any credit agreement or instrument, corporate charter or by-law or other agreement or instrument to which Lessee is a party or by which Lessee or its properties or assets are bound or affected;
(biii) Lessee’s organizational documents incorporate provisions that permitLessee has received by the Delivery Date, every consent, approval or authorization of, and has given every notice to, each Governmental Entity having jurisdiction with respect to the execution, delivery or performance of this Lease (including all necessary authorizationsmonetary and other obligations hereunder) that is required for Lessee to execute and deliver this Lease, approvals, and on or before the Delivery Date will have received such consents, licenses, permits and orders of and registrations with any Government Entity, have been duly and unconditionally obtained and are now in full force and effect approvals or authorizations that are it is required to authorizeobtain by such date, Lessee including, without limitation, approval from every Governmental Entity necessary to sign and deliverallow payment of all amounts due hereunder in Dollars, and will have given such notices in order to perform its obligations under and the transactions contemplated byhereby and thereby and each such consent, the Lessee’s Documentsapproval or authorization is valid and effective and has not been revoked;
(civ) Lessee this Lease has been duly authorized, executed and delivered this Agreement and this Agreement constitutesby Lessee, and the other Lessee’s Documents Lease does, and the Lease Supplement No. 1and Acceptance Certificate when executed and delivered by Lessee will constitutewill, constitute legal, valid and binding obligations of Lessee, enforceable in accordance with their respective terms (terms, except to the extent such enforceability as enforcement thereof may be limited by applicable bankruptcy, insolvency, moratoriumreorganization, bankruptcy, reorganization moratorium or other similar laws affecting the enforcement of creditors' rights generally, and, to the extent that certain remedies require or may require enforcement by a court of creditors generally)equity, by such principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) as a court having jurisdiction may impose and by laws which may affect some of such remedies but which do not make the available remedies inadequate for the substantial realization of the benefits provided herein;
(dv) neither the execution and delivery of the Lessee’s Documents by Lessee nor the performance by Lessee of any of the transactions contemplated herein and therein will: (i) contravene there are no suits or constitute a violation or breach of or a default under any existing law or agreement by which Lessee or any of its assets is bound, any agreement to which it is a party or Lessee’s organizational documents; (ii) cause any limitation on Lessee or its assets or the powers of its directors or officers, whether imposed by or contained in Lessee’s organizational documents or any existing law, agreement or otherwiseproceedings pending or, to be exceeded; the knowledge of Lessee, threatened in any court or (iii) result in the creation before any regulatory commission, board or imposition of, other administrative Governmental Entity against or oblige affecting Lessee to create, any Lien (other than Permitted Liens) over its undertaking or any of its assets, rights or revenues;
(e) except for such filings, registrations and recordings as are specified under this Agreement and the other Lessee’s Documents, it is not necessary or advisable under the laws of the State of Registration or the Habitual Base in order to ensure the validity, effectiveness or enforceability of any Lessee’s Document or to protect the rights of Lessor in the Aircraft or any part thereof that any Lessee’s Document or any other instrument be filed, registered or recorded or that any registration or any other action be taken, and under such laws, the rights of Lessor in the Aircraft which will have priority in all respects over a materially adverse effect on the claims of all creditors current business or financial condition of Lessee;
(fvi) the obligations of Lessee under the Lessee’s Documents are, has filed or upon execution thereof caused to be filed all tax returns which are required to be filed by Lessee will be, direct, general and unconditional obligations of Lessee and rank, or will rank, at least pari passu with all other present and future unsecured and unsubordinated obligations (including contingent obligations) of Lessee save for obligations mandatorily preferred by law and not by reason of any Lien;
(g) no event has occurred that constitutes a contravention of, or default under, any agreement by which Lessee or any of its assets is bound or affectedit, and that could reasonably has paid or caused to be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents;
(h) no litigation, arbitration or administrative proceeding that could (by itself or together with any other such proceedings or claims) reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents is (to Lessee’s knowledge) presently in progress or pending against Lessee or any of its assets;
(i) the unaudited financial statements of Lessee prepared by Lessee’s management for the fiscal year ended December 31, 2010 have been prepared in accordance with Mexican generally accepted accounting principles and practices (“GAAPP”), and when delivered, the audited financial statements of Lessee for the fiscal year ended December 31, 2010 have been prepared in accordance with International Financial Reporting Standards and fairly present the results of its operations for that period and its financial condition at December 31, 2010 and, in particular, to the extent required by International Financial Reporting Standards accurately disclose or reserve against paid all the liabilities (actual or contingent) of Lessee, and, to Lessee’s knowledge, after reasonable inquiry, there has been no material adverse change to the financial condition of Lessee since December 31, 2010, except as otherwise previously disclosed to Lessor in writing;
(j) all necessary returns have been timely delivered by Lessee to the applicable taxation authorities for which the failure to file could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time, Lessee is not in default in the payment of any Taxes shown to be due or payable on any such said returns and no claim is being asserted with respect to Taxes that is not disclosed in the audited financial statements referred to in clause (i) above that if payable, could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time;
(k) the financial and other information furnished by or on behalf of Lessee to Lessor and its Affiliates in writing does not, to Lessee’s knowledge, contain any untrue statement of a material fact or omit to state any material fact the omission of which makes the statements therein, in the light of the circumstances under which they were made, misleading, nor omits to disclose any material matter that has or could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry assessment received by Lessee;
(lvii) Lessee, under applicable law, is subject to private commercial law and suit, and neither Lessee nor its properties or assets have any right of immunity from suit or execution except for the placing on the grounds of sovereignty in the United States;
(m) no Default or Event of Default has occurred Aircraft and is continuing;
(n) Lessee has not granted to, or registered in favor of, any person other than Lessor an “international interest,” “national interest,” “prospective international interest” (as such terms are defined in the Cape Town Convention) or a de-registration and export request authorization with respect to the Airframe or any Engine;
(o) assuming that no part on each Engine of the assets plates containing the legends referred to be used by Lessor to acquire its interest in the Aircraft or any Lender to provide financing in respect of the Aircraft constitutes assets of an “employee benefit plan” as defined in Section 3(36(f) of ERISA, which is subject to Title I of ERISA, a “plan” as defined in Section 4975 of the Code which is subject to Section 4975 of the Code, an entity whose underlying assets include “plan assets” by reason of any such employee benefit plan’s or plan’s investment in such entity, or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is similar to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, the execution and delivery of this Agreement hereof and the other Lessee’s Documents and the transactions contemplated hereby and thereby will be exempt from, or will not involve any transaction which is subject to, the prohibitions of either Section 406 of ERISA or Section 4975 of the Code and will not involve any transaction in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant steps referred to Section 4975 of the Code; and
(p) Lessee has duly appointed and registered an officer of Lessee with the International Registry an administrator to act on behalf of Lessee as a transacting user entity.in
Appears in 2 contracts
Samples: Aircraft Lease Agreement (Frost Hanna Mergers Group Inc), Aircraft Lease Agreement (Frost Hanna Mergers Group Inc)
Lessee’s Representations and Warranties. Lessee acknowledges that each of Lessor and the other Lessor Parties, has entered into this Agreement and the other Operative Documents in full reliance on representations and warranties by Lessee in this Clause 2.1; and Lessee now represents and warrants to Lessor that the following statements are on the date hereof, and on the Delivery Date will be, true and accuratethat:
(ai) Lessee is a sociedad anónima promotora de inversiones de capital variable that is corporation duly incorporated, validly organized and existing and in good standing under the laws of the United Mexican StatesHawaii, and has full corporate power power, authority and authority legal right to conduct own its properties and to carry on its business as presently conducted, conducted and to own or hold under lease its assets, to enter into and perform its obligations under this Lease, the Tax Indemnification Agreement and the Restructuring Agreement; holds all licenses, certificates and permits from all governmental authorities necessary for the conduct of its business, and is duly qualified to do business as a corporation in good standing in each jurisdiction in which the failure to be so qualified would have a materially adverse effect on Lessee or on its ability to perform its obligations hereunder, under the Tax Indemnification Agreement and under the Restructuring Agreement.
(ii) This Lease, the Tax Indemnification Agreement and the Restructuring Agreement have been duly authorized by all necessary action on the part of Lessee’s Documents , do not require any approval of stockholders of Lessee, and to consummate neither the execution and delivery hereof or thereof nor the consummation of the transactions contemplated hereby or thereby nor compliance by Lessee with any of the Lessee’s Documents;terms and provisions hereof or thereof does or will violate any provision of the articles of incorporation or by-laws of Lessee or any law, rule, regulation, judgment, order or decree of any government or governmental instrumentality or court having jurisdiction over Lessee or any of its activities or properties, or does or will result in any breach of, or constitute any default under, or result in the creation of any Lien upon any property of Lessee under, any indenture, mortgage, deed of trust, conditional sale contract, loan or credit agreement, or other agreement or instrument to which Lessee is a party or by which Lessee or its properties may be bound or affected.
(biii) Lessee’s organizational documents incorporate provisions that permitNeither the execution and delivery by Lessee of this Lease, and all necessary authorizationsthe Tax Indemnification Agreement or the Restructuring Agreement nor the performance by Lessee of any of the transactions contemplated hereby or thereby require the consent, approval, order or authorization of, or registration with, or the giving of notice to, the Aeronautics Authority or any other domestic or foreign governmental authority, except for the approvals, consentsauthorizations and consents that have heretofore been obtained, licensestrue and complete copies of which have been delivered to Lessor.
(iv) This Lease, permits the Tax Indemnification Agreement and orders of and registrations with any Government Entity, the Restructuring Agreement have been duly and unconditionally obtained and are now in full force and effect that are required to authorize, Lessee to sign and deliver, and perform its obligations under and the transactions contemplated by, the Lessee’s Documents;
(c) Lessee has duly authorized, executed and delivered this Agreement by Lessee and this Agreement constitutesconstitute, and the other Lessee’s Documents Lease Supplement when executed and delivered by Lessee will constitute, legal, valid and binding obligations of Lessee, enforceable in accordance with their respective terms (terms, except to where the extent such enforceability thereof may be limited by insolvency, moratorium, applicable bankruptcy, reorganization insolvency or other laws affecting the creditors' rights of creditors generally);.
(dv) neither Except for the execution and delivery registration of the Lessee’s Documents by Lessee nor Aircraft in the performance by Lessee name of Lessor as contemplated hereby and the filing for recordation of this Lease and the Lease Supplement with the Aeronautics Authority, no other registration and no further filing or recording of this Lease, the Tax Indemnification Agreement, the Restructuring Agreement or of any of the transactions contemplated herein and therein will: (i) contravene other instrument or constitute a violation or breach of or a default under any existing law or agreement by which Lessee or any of its assets document is bound, any agreement to which it is a party or Lessee’s organizational documents; (ii) cause any limitation on Lessee or its assets or the powers of its directors or officers, whether imposed by or contained in Lessee’s organizational documents or any existing law, agreement or otherwise, to be exceeded; or (iii) result in the creation or imposition of, or oblige Lessee to create, any Lien (other than Permitted Liens) over its undertaking or any of its assets, rights or revenues;
(e) except for such filings, registrations and recordings as are specified under this Agreement and the other Lessee’s Documents, it is not necessary or advisable under the laws of the State Country of Registration or the Habitual Base any other jurisdiction in order to ensure to: (1) establish the validitypriority, effectiveness legality, validity or enforceability of any Lessee’s Document or to protect the rights of Lessor in the Aircraft or any part thereof that any Lessee’s Document or any other instrument be filed, registered or recorded or that any registration or any other action be taken, and under such laws, the rights of Lessor in the Aircraft will have priority in all respects over the claims of all creditors of Lessee;
(f) the obligations of Lessee under this Lease, the Lessee’s Documents areTax Indemnification Agreement and the Restructuring Agreement, or upon execution thereof by Lessee will be(2) fully protect, direct, general establish and unconditional obligations of perfect Lessor's title to or interest in the Equipment or its rights and interests hereunder and thereunder (including with respect to the Security Deposit) as against Lessee and rank, or will rank, at least pari passu with all other present and future unsecured and unsubordinated obligations (including contingent obligations) of Lessee save for obligations mandatorily preferred by law and not by reason of any Lien;third parties in any jurisdiction.
(gvi) no event has occurred that constitutes Lessee is a contravention of, or default under, any agreement by which Lessee or any Certificated Air Carrier within the meaning of its assets is bound or affectedSection 41102 of Title 49 of the United States Code Annotated, and that could reasonably be expected Lessor is entitled to the benefits and protections of Section 1110 of the Bankruptcy Code (11 U.S.C. Section 1110) in respect of the Aircraft leased to Lessee under this Lease.
(vii) There are no suits or proceedings pending or, to the knowledge of Lessee, threatened in any court or before any regulatory commission, board or other administrative governmental agency against or affecting Lessee which may have a material materially adverse effect on Lessee’s ability the financial condition or business of Lessee except those described in writing to observe or perform its obligations under Lessor prior to the Lessee’s Documents;date hereof.
(hviii) no litigation, arbitration or administrative proceeding that could (by itself or together with any other such proceedings or claims) reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents is (to Lessee’s knowledge) presently in progress or pending against Lessee or any of its assets;
(i) the unaudited financial statements The balance sheet of Lessee prepared by Lessee’s management for the fiscal year ended as of December 31, 2010 have been prepared in accordance with Mexican generally accepted accounting principles 2000 and practices (“GAAPP”), the statements of income and when delivered, the audited financial statements retained earnings of Lessee for the three fiscal year years then ended December 31, 2010 (copies of each of which have been prepared in accordance with International Financial Reporting Standards furnished to Lessor), are complete and correct and fairly present set forth Lessee's financial condition as of such dates and the results of its operations for that period such periods, and its financial condition at since December 31, 2010 and, in particular, to the extent required by International Financial Reporting Standards accurately disclose or reserve against all the liabilities (actual or contingent) of Lessee, and, to Lessee’s knowledge, after reasonable inquiry2000, there has been no material adverse change to the financial condition of Lessee since December 31, 2010, except as otherwise previously disclosed to Lessor in writing;
(j) all necessary returns have been timely delivered by Lessee to the applicable taxation authorities for which the failure to file could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time, Lessee is not in default in the payment of any Taxes shown to be payable on any such returns and no claim is being asserted with respect to Taxes that is not disclosed in the audited financial statements referred to in clause (i) above that if payable, could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time;
(k) the financial and other information furnished by or on behalf of Lessee to Lessor and its Affiliates in writing does not, to Lessee’s knowledge, contain any untrue statement of a material fact or omit to state any material fact the omission of which makes the statements therein, in the light of the circumstances under which they were made, misleading, nor omits to disclose any material matter that has or could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry by Lessee;
(l) Lessee, under applicable law, is subject to private commercial law and suit, and neither Lessee nor its properties or assets have any right of immunity from suit or execution on the grounds of sovereignty in the United States;
(m) no Default or Event of Default has occurred and is continuing;
(n) Lessee has not granted to, or registered in favor of, any person other than Lessor an “international interest,” “national interest,” “prospective international interest” (as such terms are defined in the Cape Town Convention) or a de-registration and export request authorization with respect to the Airframe or any Engine;
(o) assuming that no part of the assets to be used by Lessor to acquire its interest in the Aircraft or any Lender to provide financing in respect of the Aircraft constitutes assets of an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, a “plan” as defined in Section 4975 of the Code which is subject to Section 4975 of the Code, an entity whose underlying assets include “plan assets” by reason of any such employee benefit plan’s or plan’s investment in such entity, condition or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is similar to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, the execution and delivery of this Agreement and the other Lessee’s Documents and the transactions contemplated hereby and thereby will be exempt from, or will not involve any transaction which is subject to, the prohibitions of either Section 406 of ERISA or Section 4975 of the Code and will not involve any transaction in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 of the Code; and
(p) Lessee has duly appointed and registered an officer of Lessee with the International Registry an administrator to act on behalf of Lessee as a transacting user entityoperations.
Appears in 2 contracts
Samples: Lease Agreement (Hawaiian Airlines Inc/Hi), Lease Agreement (Hawaiian Airlines Inc/Hi)
Lessee’s Representations and Warranties. Lessee acknowledges that each of Lessor and hereby makes the other Lessor Parties, has entered into this Agreement and the other Operative Documents in full reliance on following representations and warranties by Lessee in this Clause 2.1; and Lessee now represents and warrants to Lessor that the following statements are on the date hereof, and on the Delivery Date will be, true and accuratewarranties:
(a) Lessee is a sociedad anónima promotora de inversiones de capital variable that is corporation duly incorporated, organized and validly existing and in good standing under the laws of the United Mexican States, State of New Mexico and has full the corporate power and authority to conduct carry on its business as presently conducted, conducted and to own or hold under lease its assets, to enter into and perform its obligations under the Lessee’s Lease, the Lease Supplement and the other Lessee Documents to be executed and delivered on or before the Delivery Date and is duly qualified to consummate do business as a foreign corporation in each jurisdiction in which the transactions contemplated by the Lessee’s Documentsnature of its business makes such qualification necessary;
(b) Lessee’s organizational documents incorporate provisions that permitthis Lease, the Lease Supplement and all necessary authorizations, approvals, consents, licenses, permits and orders of and registrations with any Government Entity, the other Lessee Documents have been duly and unconditionally obtained and are now in full force and effect that are required to authorizeauthorized by all necessary corporate action on the part of Lessee, do not require any approval of the stockholders of Lessee to sign and deliveror any trustee or any holder of any indebtedness of Lessee, and perform its obligations under neither the execution and delivery hereof or thereof nor the consummation of the transactions contemplated byhereby or thereby nor compliance by Lessee with any of the terms and provisions hereof or thereof will contravene its organizational documents or any law or governmental rule or regulation applicable to Lessee or result in any breach of, or constitute any default under, or result in the Lessee’s Documentscreation of any Lien upon any property of Lessee under any indenture, mortgage, credit agreement or other agreement or instrument to which Lessee is a party or by which Lessee or its properties or assets may be bound;
(c) Lessee has duly authorizedreceived and has complied with every necessary consent, approval, order, or authorization of, or registration with, and has given any prior notice to, any federal, state or foreign governmental authority having jurisdiction to the extent required for the Lessee to execute and deliver this Lease, the Lease Supplement and the other Lessee Documents to be executed and delivered on or before the Delivery Date and to perform its obligations hereunder and thereunder;
(d) this Agreement Lease has been, and this Agreement constitutes, upon execution and delivery of the Lease Supplement and the other Lessee’s Lessee Documents when to be executed and delivered on or before the Delivery Date such Lease Supplement and other Lessee Documents will be, duly executed and delivered by Lessee and constitutes or will constitute, constitute the legal, valid valid, and binding obligations of Lessee, enforceable in accordance with their respective terms (except to the extent such enforceability may be limited by insolvency, moratorium, bankruptcy, reorganization or other laws affecting the rights of creditors generally);
(d) neither the execution and delivery of the Lessee’s Documents by Lessee nor the performance by Lessee of any of the transactions contemplated herein and therein will: (i) contravene or constitute a violation or breach of or a default under any existing law or agreement by which Lessee or any of its assets is bound, any agreement to which it is a party or Lessee’s organizational documents; (ii) cause any limitation on Lessee or its assets or the powers of its directors or officers, whether imposed by or contained in Lessee’s organizational documents or any existing law, agreement or otherwise, to be exceeded; or (iii) result in the creation or imposition of, or oblige Lessee to create, any Lien (other than Permitted Liens) over its undertaking or any of its assets, rights or revenuesterms;
(e) except for such filingsthere are no suits or proceedings pending or, registrations and recordings as are specified under this Agreement and to the other Lessee’s Documents, it is not necessary or advisable under the laws of the State of Registration or the Habitual Base in order to ensure the validity, effectiveness or enforceability of any Lessee’s Document or to protect the rights of Lessor in the Aircraft or any part thereof that any Lessee’s Document or any other instrument be filed, registered or recorded or that any registration or any other action be taken, and under such laws, the rights of Lessor in the Aircraft will have priority in all respects over the claims of all creditors knowledge of Lessee;
(f) the obligations of Lessee under the , threatened in any court or before any regulatory commission, board or other administrative governmental agency against or affecting Lessee’s Documents are, or upon execution thereof by Lessee will bewhich, direct, general and unconditional obligations of Lessee and rank, or will rank, at least pari passu with all other present and future unsecured and unsubordinated obligations (including contingent obligations) of Lessee save for obligations mandatorily preferred by law and not by reason of any Lien;
(g) no event has occurred that constitutes a contravention of, or default under, any agreement by which Lessee or any of its assets is bound or affected, and that could be reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents;
(h) no litigation, arbitration or administrative proceeding that could (by itself or together with any other such proceedings or claims) reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents is (to Lessee’s knowledge) presently in progress or pending against Lessee or any of its assets;
(i) the unaudited financial statements of Lessee prepared by Lessee’s management for the fiscal year ended December 31, 2010 have been prepared in accordance with Mexican generally accepted accounting principles and practices (“GAAPP”), and when delivered, the audited financial statements of Lessee for the fiscal year ended December 31, 2010 have been prepared in accordance with International Financial Reporting Standards and fairly present the results of its operations for that period and its financial condition at December 31, 2010 and, in particular, to the extent required by International Financial Reporting Standards accurately disclose or reserve against all the liabilities (actual or contingent) of Lessee, and, to Lessee’s knowledge, after reasonable inquiry, there has been no material adverse change to the financial condition of Lessee since December 31, 2010, except as otherwise previously disclosed to Lessor in writing;
(j) all necessary returns have been timely delivered by Lessee to the applicable taxation authorities for which the failure to file could reasonably be expected to have a material materially adverse effect on the current business or financial condition of Lessee or an adverse effect on Lessee’s the ability of Lessee to observe or perform any of its obligations under the Lessee’s Lessee Documents;
(f) Lessee has filed or caused to be filed all tax returns which are required to be filed by it, taking into account and has paid, caused to be paid or provided for all other obligations that Lessee must observe or perform at that time, Lessee is not in default in the payment of any Taxes taxes shown to be due or payable on said returns or on any assessment received by Lessee, to the extent that such returns taxes have become due and payable unless protected by appropriate legal proceedings;
(g) no claim action, including any filing or recording of any document or taking possession thereof, is being asserted with respect or will be necessary or advisable in order to Taxes that is not disclosed establish and perfect Lessor's title to and interest in the audited financial statements referred to Aircraft in clause any applicable jurisdiction within the United States of America;
(h) the chief executive office of Lessee is located at 0000 Xxx Xxxxxx XX, Xxxxx 0, Xxxxxxxxxxx, Xxx Xxxxxx 00000, and Lessee will give Lessor 30 days' prior written notice of any change in such office;
(i) above that if payable, could reasonably be expected to have a material adverse effect on none of the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time;
(k) the financial and other information documents furnished by or on behalf of Lessee to Lessor and its Affiliates or Owner Participant in writing does not, to Lessee’s knowledge, connection with the transactions contemplated by this Lease contain any untrue statement of a material fact or omit to state any a material fact the omission of which makes necessary to make the statements contained therein, in the light as of the circumstances under which they were date made, not misleading. There is no fact known by Lessee which Lessee has not disclosed to Lessor or Owner Participant in writing which materially adversely affects or, nor omits as far as Lessee can now reasonably foresee, can reasonably be expected to disclose materially adversely affect, the ability of Lessee to carry on its business and perform its obligations under the Lessee Documents;
(j) Lessee is not in breach of any material matter that has or could agreement to which Lessee is now a party which breach can reasonably be expected to have a material adverse effect on the business or financial condition of Lessee or an adverse effect on Lessee’s the ability of Lessee to observe or perform any of its obligations under the Lessee’s Documents and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry by Lessee;this Lease; and
(l) Lessee, under applicable law, is subject to private commercial law and suit, and neither Lessee nor its properties or assets have any right of immunity from suit or execution on the grounds of sovereignty in the United States;
(mk) no Lease Event of Default or Event of Lease Default has occurred and is continuing;
(n) Lessee has not granted to, or registered in favor of, any person other than Lessor an “international interest,” “national interest,” “prospective international interest” (as such terms are defined in the Cape Town Convention) or a de-registration and export request authorization with respect to the Airframe or any Engine;
(o) assuming that no part of the assets to be used by Lessor to acquire its interest in the Aircraft or any Lender to provide financing in respect of the Aircraft constitutes assets of an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, a “plan” as defined in Section 4975 of the Code which is subject to Section 4975 of the Code, an entity whose underlying assets include “plan assets” by reason of any such employee benefit plan’s or plan’s investment in such entity, or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is similar to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, the execution and delivery of this Agreement and the other Lessee’s Documents and the transactions contemplated hereby and thereby will be exempt from, or will not involve any transaction which is subject to, the prohibitions of either Section 406 of ERISA or Section 4975 of the Code and will not involve any transaction in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 of the Code; and
(p) Lessee has duly appointed and registered an officer of Lessee with the International Registry an administrator to act on behalf of Lessee as a transacting user entity.
Appears in 2 contracts
Samples: Aircraft Lease Agreement (Airlease LTD), Aircraft Lease Agreement (Airlease LTD)
Lessee’s Representations and Warranties. Lessee acknowledges that each of Lessor and the other Lessor Parties, has entered into this Agreement and the other Operative Documents in full reliance on representations and warranties by Lessee in this Clause 2.1; and Lessee now LESSEE represents and warrants to Lessor that the following statements are LESSOR with regard to this MASTER LEASE and each Lease Schedule to be appended hereto that:
a. The execution, delivery and performance of this MASTER LEASE and any Lease Schedule have been duly authorized by all necessary action on the date hereofpart of LESSEE, and this MASTER LEASE constitutes a valid and binding obligation of LESSEE enforceable against LESSEE in accordance with its terms;
b. The individual executing this MASTER LEASE on behalf of LESSEE is duly authorized;
c. Neither the Delivery Date will beexecution or delivery by LESSEE of this MASTER LEASE, true and accurate:
(a) Lessee nor the performance thereof by LESSEE, conflicts with, results in a breach of or constitutes a default or violation of LESSEE'S Certificate of Incorporation, By-Laws, applicable law, court order or any agreement or other instrument to which LESSEE is a sociedad anónima promotora de inversiones de capital variable that party or by which it is bound;
d. LESSEE is duly incorporated, validly existing organized and in good standing under in its state of incorporation, is duly qualified to do business in each jurisdiction where the laws of the United Mexican States, Equipment is located and has full corporate power and authority to conduct its business as presently conducted, to own or hold under lease its assets, to enter into and perform its obligations under the Lessee’s Documents and to consummate the transactions contemplated by the Lessee’s Documentswhere such qualification is required;
(b) Lessee’s organizational documents incorporate provisions that permite. Upon request by LESSOR, and all necessary authorizations, approvals, consents, licenses, permits and orders of and registrations with any Government Entity, have been duly and unconditionally obtained and are now in full force and effect that are required to authorize, Lessee to sign and deliver, and perform LESSEE shall furnish its obligations under and the transactions contemplated by, the Lessee’s Documents;
(c) Lessee has duly authorized, executed and delivered this Agreement and this Agreement constitutes, and the other Lessee’s Documents when executed and delivered by Lessee will constitute, legal, valid and binding obligations of Lessee, enforceable in accordance with their respective terms (except to the extent such enforceability may be limited by insolvency, moratorium, bankruptcy, reorganization or other laws affecting the rights of creditors generally);
(d) neither the execution and delivery of the Lessee’s Documents by Lessee nor the performance by Lessee of any of the transactions contemplated herein and therein will: (i) contravene or constitute a violation or breach of or a default under any existing law or agreement by which Lessee or any of its assets is bound, any agreement to which it is a party or Lessee’s organizational documents; (ii) cause any limitation on Lessee or its assets or the powers of its directors or officers, whether imposed by or contained in Lessee’s organizational documents or any existing law, agreement or otherwise, to be exceeded; or (iii) result in the creation or imposition of, or oblige Lessee to create, any Lien (other than Permitted Liens) over its undertaking or any of its assets, rights or revenues;
(e) except for such filings, registrations and recordings as are specified under this Agreement and the other Lessee’s Documents, it is not necessary or advisable under the laws of the State of Registration or the Habitual Base in order to ensure the validity, effectiveness or enforceability of any Lessee’s Document or to protect the rights of Lessor in the Aircraft or any part thereof that any Lessee’s Document or any other instrument be filed, registered or recorded or that any registration or any other action be taken, and under such laws, the rights of Lessor in the Aircraft will have priority in all respects over the claims of all creditors of Lessee;
(f) the obligations of Lessee under the Lessee’s Documents are, or upon execution thereof by Lessee will be, direct, general and unconditional obligations of Lessee and rank, or will rank, at least pari passu with all other present and future unsecured and unsubordinated obligations (including contingent obligations) of Lessee save for obligations mandatorily preferred by law and not by reason of any Lien;
(g) no event has occurred that constitutes a contravention of, or default under, any agreement by which Lessee or any of its assets is bound or affected, and that could reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents;
(h) no litigation, arbitration or administrative proceeding that could (by itself or together with any other such proceedings or claims) reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents is (to Lessee’s knowledge) presently in progress or pending against Lessee or any of its assets;
(i) the unaudited most recent audited annual financial statements of Lessee prepared by Lessee’s management for the fiscal year ended December 31, 2010 have been prepared in accordance with Mexican generally accepted accounting principles principles; and practices (“GAAPP”), and when delivered, the audited LESSEE shall furnish its quarterly financial statements within ___ days after the end of Lessee for the fiscal year ended December 31each quarter, 2010 have been prepared in accordance with International Financial Reporting Standards generally accepted accounting principles, and fairly present the results being certified as true and correct by an authorized officer of its operations for that period and its financial condition at December 31, 2010 and, in particular, to the extent required by International Financial Reporting Standards accurately disclose or reserve against all the liabilities (actual or contingent) of Lessee, and, to Lessee’s knowledge, after reasonable inquiry, there has been no material adverse change to the financial condition of Lessee since December 31, 2010, except as otherwise previously disclosed to Lessor in writingLESSEE;
(j) all necessary returns have been timely delivered by Lessee f. LESSEE shall provide to the applicable taxation authorities for which the failure LESSOR any other documents reasonably requested to file could consummate this transaction or any Lease Schedule or as reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations required under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time, Lessee is not in default in the payment of any Taxes shown to be payable on any such returns and no claim is being asserted with respect to Taxes that is not disclosed in the audited financial statements referred to in clause (i) above that if payable, could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that timethis MASTER LEASE;
(k) the financial and other information furnished by g. No approval, consent or on behalf of Lessee to Lessor and its Affiliates in writing does not, to Lessee’s knowledge, contain authorization is required from any untrue statement of a material fact or omit to state any material fact the omission of which makes the statements therein, in the light of the circumstances under which they were made, misleading, nor omits to disclose any material matter that has or could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry by Lessee;
(l) Lessee, under applicable law, is subject to private commercial law and suit, and neither Lessee nor its properties or assets have any right of immunity from suit or execution on the grounds of sovereignty in the United States;
(m) no Default or Event of Default has occurred and is continuing;
(n) Lessee has not granted to, or registered in favor of, any person other than Lessor an “international interest,” “national interest,” “prospective international interest” (as such terms are defined in the Cape Town Convention) or a de-registration and export request authorization governmental authority with respect to the Airframe execution, delivery or any Engine;
(o) assuming that no part performance of the assets to be used by Lessor to acquire its interest in the Aircraft this MASTER LEASE, or any Lender to provide financing in respect of the Aircraft constitutes assets of an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, a “plan” as defined in Section 4975 of the Code which is subject to Section 4975 of the Code, an entity whose underlying assets include “plan assets” by reason of if any such employee benefit plan’s approval, consent or plan’s investment in such entityauthorization is required, or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is similar to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, the execution and delivery of this Agreement and the other Lessee’s Documents and the transactions contemplated hereby and thereby will be exempt from, or will not involve any transaction which is subject to, the prohibitions of either Section 406 of ERISA or Section 4975 of the Code and will not involve any transaction in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 of the Code; and
(p) Lessee it has duly appointed and registered an officer of Lessee with the International Registry an administrator to act on behalf of Lessee as a transacting user entitybeen obtained.
Appears in 2 contracts
Samples: Master Lease Agreement (Phymed Inc), Master Lease Agreement (Phymed Inc)
Lessee’s Representations and Warranties. The Lessee acknowledges that each of Lessor and the other Lessor Parties, has entered into this Agreement and the other Operative Documents in full reliance on representations and warranties by Lessee in this Clause 2.1; and Lessee now represents and warrants to Lessor that the following statements are on the date hereofthat, and on as of the Delivery Date will be(unless any such representation and warranty is specifically made as of an earlier date, true in which case the Lessee represents and accurate:warrants as of such earlier date):
(a) the Lessee is a sociedad anónima promotora de inversiones de capital variable that is corporation duly incorporated, organized and validly existing and is in good standing under the laws of the United Mexican StatesState of New York, has its principal place of business and chief executive office (as such terms are used in Article 9 of the Uniform Commercial Code) in Indianapolis, Indiana at the address set forth in Section 12.01(a), and is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction where the failure to be so qualified or in good standing would have a materially adverse effect on its business or would impair its ability to perform its obligations under the Lessee Documents;
(b) the Lessee has full corporate power power, authority and authority legal right to conduct its business and operations as presently conducted, currently conducted and to own or hold under lease its assets, properties and to enter into and perform its obligations under the Lessee Documents;
(c) the Lessee is a Certificated Air Carrier;
(d) the Lessee possesses all necessary certificates, franchises, licenses, permits, rights and concessions and consents (collectively "permits") which are necessary to the operation of the routes flown by it and the conduct of its business and operations as currently conducted and each such permit is in full force and effect, except for any such permits the failure to have or maintain which would not have a material adverse effect on the Lessee or its ability to perform its obligations under the Lessee Documents;
(e) the execution, delivery and performance of the Lessee Documents by the Lessee have been duly authorized by all necessary corporate action on the part of the Lessee and do not require any stockholder approval, or approval or consent of any trustee or holder of any indebtedness or obligations of the Lessee’s , and each such Lessee Documents has been duly executed and delivered and constitutes the legal, valid and binding obligations of the Lessee enforceable against it in accordance with the terms thereof except as such enforceability may be limited by bankruptcy, insolvency, or other similar laws or by general equitable principles;
(f) no authorization, consent or approval of or other action by, and no notice to or filing with, any United States federal or state governmental authority or regulatory body is required for the execution, delivery or performance by the Lessee of the Lessee Documents except for such registrations, applications and recordings referred to in the opinion of Daugherty, Fowler, Peregrin & Haught, a Professional Corporation delivered pursuant to Section 3.00(x)(xvi)(D) and the filings referred to in Section 3.01(j)(ii);
(g) neither the execution, delivery or performance by the Lessee of the Lessee Documents nor compliance with the terms and provisions hereof or thereof, conflicts or will conflict with or results or will result in a breach or violation of any of the terms, conditions or provisions of, or will require any consent (other than the Embraer Assignment Documents, the Seller Assignment Documents and Engine Warranty Assignment and Consent) or approval under, any Applicable Law or the charter documents, as amended, or bylaws, as amended, of the Lessee or any order, writ, injunction or decree of any court or governmental authority against the Lessee or by which it or any of its properties is bound or any indenture, mortgage or contract or other agreement or instrument to which the Lessee is a party or by which it or any of its properties is bound, or constitutes or will constitute a default thereunder or results or will result in the imposition of any Lien upon the Aircraft or any of its properties (other than Permitted Liens), except for any such conflict, breach or default which would not have a material adverse effect on the Lessee or its ability to perform its obligations under the Lessee Documents;
(h) except as disclosed in any of the financial statements referred to in Section 4.01(p) or as otherwise disclosed in writing to the Owner Participant, there are no pending or, to the knowledge of the Lessee, threatened actions, suits, investigations or proceedings against or affecting the Lessee or any of its properties before or by any court, governmental agency, arbitration board, tribunal or other administrative agency which, (A) may reasonably be expected to have a materially adverse effect on the Lessee's consolidated financial condition, business, or operations, or (B) would materially adversely affect the ability of the Lessee to consummate the transactions contemplated by the Lessee’s Documents;
(b) Lessee’s organizational documents incorporate provisions that permit, and all necessary authorizations, approvals, consents, licenses, permits and orders of and registrations with any Government Entity, have been duly and unconditionally obtained and are now in full force and effect that are required to authorize, Lessee to sign and deliver, and perform its obligations under and the transactions contemplated by, the Lessee’s Documents;
(c) Lessee has duly authorized, executed and delivered this Agreement and this Agreement constitutes, and the other Lessee’s Documents when executed and delivered by Lessee will constitute, legal, valid and binding obligations of Lessee, enforceable in accordance with their respective terms (except to the extent such enforceability may be limited by insolvency, moratorium, bankruptcy, reorganization or other laws affecting the rights of creditors generally);
(d) neither the execution and delivery of the Lessee’s Documents by Lessee nor the performance by Lessee of any of the transactions contemplated herein and therein will: (i) contravene or constitute a violation or breach of or a default under any existing law or agreement by which Lessee or any of its assets is bound, any agreement to which it is a party or Lessee’s organizational documents; (ii) cause any limitation on Lessee or its assets or the powers of its directors or officers, whether imposed by or contained in Lessee’s organizational documents or any existing law, agreement or otherwise, to be exceeded; or (iii) result in the creation or imposition of, or oblige Lessee to create, any Lien (other than Permitted Liens) over its undertaking or any of its assets, rights or revenues;
(e) except for such filings, registrations and recordings as are specified under this Agreement and the other Lessee’s Documents, it is not necessary or advisable under the laws of the State of Registration or the Habitual Base in order to ensure the validity, effectiveness or enforceability of any Lessee’s Document or to protect the rights of Lessor in the Aircraft or any part thereof that any Lessee’s Document or any other instrument be filed, registered or recorded or that any registration or any other action be taken, and under such laws, the rights of Lessor in the Aircraft will have priority in all respects over the claims of all creditors of Lessee;
(f) the obligations of Lessee under the Lessee’s Documents are, or upon execution thereof by Lessee will be, direct, general and unconditional obligations of Lessee and rank, or will rank, at least pari passu with all other present and future unsecured and unsubordinated obligations (including contingent obligations) of Lessee save for obligations mandatorily preferred by law and not by reason of any Lien;
(g) no event has occurred that constitutes a contravention of, or default under, any agreement by which Lessee or any of its assets is bound or affected, and that could reasonably be expected to have a material adverse effect on Lessee’s ability to observe Operative Agreements or perform its obligations under the Lessee’s Lessee Documents;
(h) no litigation, arbitration or administrative proceeding that could (by itself or together with any other such proceedings or claims) reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents is (to Lessee’s knowledge) presently in progress or pending against Lessee or any of its assets;
(i) except for (A) the unaudited financial statements registration in the Owner Trustee's name of the Aircraft pursuant to the Transportation Code, (B) the filing with and, where appropriate, recordation by the FAA pursuant to the Transportation Code of the Lease (including Lease Supplement No. 1) and (C) the filing of the financing statement referred to in Section 3.01(k), no further action, including any filing or recording of any document, is necessary or advisable in order to establish the Owner Trustee's title to and interest in the Aircraft and the Lessor's Estate as against the Lessee and any third parties;
(j) the Owner Trustee has received good and marketable title to the Aircraft, free and clear of all Liens, except Permitted Liens;
(k) all premiums which have become due with respect to the insurance required to be provided by the Lessee on or prior to the Delivery Date under Section 9 of the Lease have been paid by the Lessee;
(l) no Default or Event of Default exists and no Event of Loss, or event which with the passage of time would constitute an Event of Loss, exists;
(m) the Aircraft is in such condition so as to qualify the Aircraft, upon inspection by the FAA, for (A) certification by the FAA under the Transportation Code as to type and airworthiness, and (B) issuance of a standard airworthiness certificate by the FAA pursuant to the Transportation Code
(n) each of the Lessee and any subsidiary of the Lessee is either (x) not an "investment company", or a company "controlled" by an "investment company", within the meaning of the Investment Company Act of 1940, as amended, or (y) exempt from the registration requirements thereof;
(o) there are no broker's or underwriter's fees payable on behalf of the Lessee in connection with the transactions contemplated in the Operative Agreements, other than those of the Lessee Advisor (as defined in Section 8.01(a)) referred to in Article 8 hereof;
(p) the audited consolidated balance sheet of Lessee prepared by Lessee’s management for the fiscal year ended as of December 31, 2010 2000 and the related consolidated statements of operations and cash flows for the period then ended have been prepared in accordance with Mexican generally accepted accounting principles and practices (“GAAPP”), and when delivered, in the audited financial statements of Lessee for the fiscal year ended December 31, 2010 have been prepared in accordance with International Financial Reporting Standards United States and fairly present in all material respects the financial condition of Lessee and its consolidated subsidiaries as of such date and the results of its operations and cash flows for that period such period, and its financial condition at since December 31, 2010 and, in particular, to the extent required by International Financial Reporting Standards accurately disclose or reserve against all the liabilities (actual or contingent) of Lessee, and, to Lessee’s knowledge, after reasonable inquiry2000, there has been no material adverse change to in such financial condition or operations of Lessee, except for matters disclosed in (a) the financial condition of Lessee since December 31, 2010, except as statements referred to above or (b) otherwise previously disclosed to Lessor in writing;
(j) all necessary returns have been timely delivered writing by Lessee to the applicable taxation authorities for which Owner Participant;
(q) to the failure to file could reasonably be expected to have a material adverse effect on the financial condition best of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time's knowledge, Lessee is not in default under, or in violation of, any Applicable Law, the payment of any Taxes shown to be payable on any such returns and no claim is being asserted with respect to Taxes that is not disclosed in the audited financial statements referred to in clause (i) above that if payable, could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time;
(k) the financial and other information furnished by or on behalf of Lessee to Lessor and its Affiliates in writing does not, to Lessee’s knowledge, contain any untrue statement of a material fact or omit to state any material fact the omission violation of which makes the statements therein, in the light of the circumstances under which they were made, misleading, nor omits would give rise to disclose any material matter that has or could reasonably be expected a Material Adverse Change to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry by Lessee;
(lr) Lessee, under applicable law, is subject to private commercial law and suit, and neither the Lessee nor any Person authorized by the Lessee to act on its properties behalf has directly or assets have indirectly offered any right of immunity from suit or execution on the grounds of sovereignty beneficial interest in the United States;
(m) no Default ownership of the Aircraft or Event of Default has occurred the Lease or any interest in the Trust Estate and is continuing;
(n) Lessee has not granted Trust Agreement, or in any similar security relating to the Aircraft, the Lease, the Trust Estate or the Trust Agreement, for sale to, or registered in favor ofsolicited any offer to acquire any such interest or security from, or has sold any such interest or security to, any person other than Lessor an “international interest,” “national interest,” “prospective international interest” Person in violation of the Securities Act or any applicable state securities laws; and
(s) Owner Trustee, as lessor under the Lease, is entitled to the benefits of Section 1110 (as such terms are defined currently in the Cape Town Conventioneffect) or a de-registration and export request authorization with respect to the Airframe or any Engine;
(o) assuming that no part of the assets to be used by Lessor to acquire its interest in the Aircraft or any Lender to provide financing in respect of the Aircraft constitutes assets of an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, a “plan” as defined in Section 4975 of the Code which is subject to Section 4975 of the Code, an entity whose underlying assets include “plan assets” by reason of any such employee benefit plan’s or plan’s investment in such entity, or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is similar to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, the execution and delivery of this Agreement and the other Lessee’s Documents and the transactions contemplated hereby and thereby will be exempt from, or will not involve any transaction which is subject to, the prohibitions of either Section 406 of ERISA or Section 4975 of the Code and will not involve any transaction in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 of the Code; and
(p) Lessee has duly appointed and registered an officer of Lessee with the International Registry an administrator to act on behalf of Lessee as a transacting user entityAircraft.
Appears in 2 contracts
Samples: Participation Agreement (Republic Airways Holdings Inc), Participation Agreement (Republic Airways Holdings Inc)
Lessee’s Representations and Warranties. Lessee acknowledges that each of Lessor and the other Lessor Parties, has entered into this Agreement and the other Operative Documents in full reliance on representations and warranties by Lessee in this Clause 2.1; and Lessee now represents and warrants to Lessor that the following statements are on the date hereof, and on the Delivery Date will be, true and accurate:
(a) Lessee is a sociedad anónima promotora de inversiones de capital variable that is duly incorporated, validly existing and in good standing under the laws of the United Mexican States, and has full corporate power and authority to conduct its business as presently conducted, to own or hold under lease its assets, to enter into and perform its obligations under the Lessee’s Documents and to consummate the transactions contemplated by the Lessee’s Documents;
(b) Lessee’s organizational documents incorporate provisions that permit, and all necessary authorizations, approvals, consents, licenses, permits and orders of and registrations with any Government Entity, have been duly and unconditionally obtained and are now in full force and effect that are required to authorize, Lessee to sign and deliver, and perform its obligations under and the transactions contemplated by, the Lessee’s Documents;
(c) Lessee has duly authorized, executed and delivered this Agreement and this Agreement constitutes, and the other Lessee’s Documents when executed and delivered by Lessee will constitute, legal, valid and binding obligations of Lessee, enforceable in accordance with their respective terms (except to the extent such enforceability may be limited by insolvency, moratorium, bankruptcy, reorganization or other laws affecting the rights of creditors generally);
(d) neither the execution and delivery of the Lessee’s Documents by Lessee nor the performance by Lessee of any of the transactions contemplated herein and therein will: (i) contravene or constitute a violation or breach of or a default under any existing law or agreement by which Lessee or any of its assets is bound, any agreement to which it is a party or Lessee’s organizational documents; (ii) cause any limitation on Lessee or its assets or the powers of its directors or officers, whether imposed by or contained in Lessee’s organizational documents or any existing law, agreement or otherwise, to be exceeded; or (iii) result in the creation or imposition of, or oblige Lessee to create, any Lien (other than Permitted Liens) over its undertaking or any of its assets, rights or revenues;
(e) except for such filings, registrations and recordings as are specified under this Agreement and the other Lessee’s Documents, it is not necessary or advisable under the laws of the State of Registration or the Habitual Base in order to ensure the validity, effectiveness or enforceability of any Lessee’s Document or to protect the rights of Lessor in the Aircraft or any part thereof that any Lessee’s Document or any other instrument be filed, registered or recorded or that any registration or any other action be taken, and under such laws, the rights of Lessor in the Aircraft will have priority in all respects over the claims of all creditors of Lessee;
(f) the obligations of Lessee under the Lessee’s Documents are, or upon execution thereof by Lessee will be, direct, general and unconditional obligations of Lessee and rank, or will rank, at least pari passu with all other present and future unsecured and unsubordinated obligations (including contingent obligations) of Lessee save for obligations mandatorily preferred by law and not by reason of any Lien;
(g) no event has occurred that constitutes a contravention of, or default under, any agreement by which Lessee or any of its assets is bound or affected, and that could reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents;
(h) no litigation, arbitration or administrative proceeding that could (by itself or together with any other such proceedings or claims) reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents is (to Lessee’s knowledge) presently in progress or pending against Lessee or any of its assets;
(i) the unaudited financial statements of Lessee prepared by Lessee’s management for the fiscal year ended December 31, 2010 2011 have been prepared in accordance with Mexican generally accepted accounting principles and practices International Financial Reporting Standards (“GAAPPIFRS”), and when delivered, the audited financial statements of Lessee for the fiscal year ended December 31, 2010 2011 have been prepared in accordance with International Financial Reporting Standards IFRS and fairly present the results of its operations for that period and its financial condition at December 31, 2010 2011 and, in particular, to the extent required by International Financial Reporting Standards IFRS accurately disclose or reserve against all the liabilities (actual or contingent) of Lessee, and, to Lessee’s knowledge, after reasonable inquiry, there has been no material adverse change to the financial condition of Lessee since December 31, 20102011, except as otherwise previously disclosed to Lessor in writing;
(j) all necessary returns have been timely delivered by Lessee to the applicable taxation authorities for which the failure to file could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time, Lessee is not in default in the payment of any Taxes shown to be payable on any such returns and no claim is being asserted with respect to Taxes that is not disclosed in the audited financial statements referred to in clause (i) above that if payable, could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time;
(k) the financial and other information furnished by or on behalf of Lessee to Lessor and its Affiliates in writing does not, to Lessee’s knowledge, contain any untrue statement of a material fact or omit to state any material fact the omission of which makes the statements therein, in the light of the circumstances under which they were made, misleading, nor omits to disclose any material matter that has or could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry by Lessee;
(l) Lessee, under applicable law, is subject to private commercial law and suit, and neither Lessee nor its properties or assets have any right of immunity from suit or execution on the grounds of sovereignty in the United States;
(m) no Default or Event of Default has occurred and is continuing;
(n) Lessee has not granted to, or registered in favor of, any person other than Lessor an “international interest,” “national interest,” “prospective international interest” (as such terms are defined in the Cape Town Convention) or a de-registration and export request authorization with respect to the Airframe or any Engine;
(o) assuming that no part of the assets to be used by Lessor to acquire its interest in the Aircraft or any Lender to provide financing in respect of the Aircraft constitutes assets of an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, a “plan” as defined in Section 4975 of the Code which is subject to Section 4975 of the Code, an entity whose underlying assets include “plan assets” by reason of any such employee benefit plan’s or plan’s investment in such entity, or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is similar to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, the execution and delivery of this Agreement and the other Lessee’s Documents and the transactions contemplated hereby and thereby will be exempt from, or will not involve any transaction which is subject to, the prohibitions of either Section 406 of ERISA or Section 4975 of the Code and will not involve any transaction in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 of the Code; and
(p) Lessee has duly appointed and registered an officer of Lessee with the International Registry an administrator to act on behalf of Lessee as a transacting user entity.
Appears in 2 contracts
Samples: Aircraft Lease Agreement (Controladora Vuela Compania De Aviacion, S.A.B. De C.V.), Aircraft Lease Agreement (Controladora Vuela Compania De Aviacion, S.A.B. De C.V.)
Lessee’s Representations and Warranties. Lessee acknowledges that each of Lessor and the other Lessor Parties, has entered into this Agreement and the other Operative Documents in full reliance on representations and warranties by Lessee in this Clause 2.1; and Lessee now --------------------------------------- represents and warrants to and with Lessor that the following statements are on the date hereof, and on the Delivery Date will be, true and accuratethat:
(ai) Lessee is a sociedad anónima promotora de inversiones de capital variable that is corporation duly incorporated, organized and validly existing and in good standing under the laws of the United Mexican StatesState of Nevada, and has full the corporate power and authority to conduct its business as presently conducted, to own or hold under lease its assets, properties and to enter into and perform its obligations under this Lease and the Lessee’s Documents Tax Indemnity Agreement and to consummate is duly qualified or licensed and is in good standing as a foreign corporation in each jurisdiction where the transactions contemplated by character of its properties or the Lessee’s Documentsnature of its activities makes such qualification necessary;
(bii) Lessee’s organizational documents incorporate provisions that permitthe execution, delivery and all necessary authorizations, approvals, consents, licenses, permits performance by Lessee of this Lease Agreement and orders of and registrations with any Government Entity, the Tax Indemnity Agreement (A) have been duly and unconditionally obtained and are now in full force and effect that are required to authorizeauthorized by all necessary corporate action of Lessee, Lessee to sign and deliver(B) do not require any approval or consent of any trustee or holder of any indebtedness, obligation or security of Lessee, except such as have been duly obtained, and perform its obligations under and (C) will not contravene any law, governmental rule, regulation or order binding on Lessee or the transactions contemplated certificate of incorporation or by-laws of Lessee or contravene the provisions of, or constitute a default under, or result in the Lessee’s Documentscreation of any Lien (other than as permitted hereunder) upon the property of Lessee under, any indenture, mortgage, contract or other agreement to which Lessee is a party or by which it may be bound or affected;
(ciii) neither the execution and delivery by Lessee has duly authorized, executed and delivered of this Lease Agreement and the Tax Indemnity Agreement, nor the consummation of any of the Transactions by Lessee contemplated hereby or thereby, require the consent or approval of, the giving of notice to, or the registration with, or the taking of any other action in respect of, any Regulatory Authority;
(iv) this Lease Agreement constitutesconstitutes and the Tax Indemnity Agreement, and the other Lessee’s Documents each Lease Supplement when executed and delivered by Lessee entered into, will constitute, legal, valid and binding obligations of Lessee, Lessee enforceable against Lessee in accordance with their respective the terms (thereof, except to the extent such that the enforceability thereof may be limited by applicable bankruptcy, insolvency, moratoriumreorganization, bankruptcy, reorganization moratorium or other similar laws generally affecting the creditors' rights and by equitable principles (regardless of creditors generallywhether enforcement is sought in equity or at law);
(dv) neither there are no pending or overtly threatened actions or proceedings before any court or administrative agency which might materially adversely affect the execution and delivery financial condition, business or operations of the Lessee’s Documents by Lessee nor the performance by Lessee of any of the transactions contemplated herein and therein will: (i) contravene or constitute a violation or breach of or a default under any existing law or agreement by which Lessee or any of its assets is bound, any agreement to which it is a party or Lessee’s organizational documents; (ii) cause any limitation on Lessee or its assets or the powers ability of its directors or officers, whether imposed by or contained in Lessee’s organizational documents or any existing law, agreement or otherwise, to be exceeded; or (iii) result in the creation or imposition of, or oblige Lessee to create, any Lien (other than Permitted Liens) over its undertaking or any of its assets, rights or revenues;
(e) except for such filings, registrations and recordings as are specified under this Agreement and the other Lessee’s Documents, it is not necessary or advisable under the laws of the State of Registration or the Habitual Base in order to ensure the validity, effectiveness or enforceability of any Lessee’s Document or to protect the rights of Lessor in the Aircraft or any part thereof that any Lessee’s Document or any other instrument be filed, registered or recorded or that any registration or any other action be taken, and under such laws, the rights of Lessor in the Aircraft will have priority in all respects over the claims of all creditors of Lessee;
(f) the obligations of Lessee under the Lessee’s Documents are, or upon execution thereof by Lessee will be, direct, general and unconditional obligations of Lessee and rank, or will rank, at least pari passu with all other present and future unsecured and unsubordinated obligations (including contingent obligations) of Lessee save for obligations mandatorily preferred by law and not by reason of any Lien;
(g) no event has occurred that constitutes a contravention of, or default under, any agreement by which Lessee or any of its assets is bound or affected, and that could reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under this Lease Agreement, any Lease Supplement hereto and the Lessee’s DocumentsTax Indemnity Agreement;
(hvi) no litigationLessee has furnished to Lessor copies of the consolidated balance sheets of Guarantor as of December 31, arbitration or administrative proceeding that could (by itself or together with any other 1994 and December 31,1993 for each of the fiscal years 1994 and 1993 then ended and the related consolidated statements of earnings for the 1994 and 1993 fiscal years then ended, such proceedings or claims) reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents is (to Lessee’s knowledge) presently in progress or pending against Lessee or any of its assets;
(i) the unaudited financial statements of Lessee prepared by Lessee’s management as of, and for the fiscal year ended years ended, December 31, 2010 have been prepared in accordance with Mexican generally accepted accounting principles 1994 and practices (“GAAPP”), and when delivered, the audited financial statements of Lessee for the fiscal year ended December 31, 2010 have 1993 having been prepared in accordance with International Financial Reporting Standards certified by Coopers & Lybrand, independent public accountants, and fairly such financial statemexxx xxxrly present the consolidated financial condition of Guarantor as of said respective dates and the results of its operations for that period said respective periods in accordance with generally accepted accounting principles consistently applied and its financial condition at since December 31, 2010 and, in particular, to the extent required by International Financial Reporting Standards accurately disclose or reserve against all the liabilities (actual or contingent) of Lessee, and, to Lessee’s knowledge, after reasonable inquiry1994, there has been no material adverse change to the financial changes in such condition of Lessee since December 31, 2010, except as otherwise previously disclosed to Lessor in writingor operations;
(jvii) the Equipment Cost, model and serial number information contained in each of the Lease Supplements will be accurate in all necessary returns have been timely delivered by Lessee to the applicable taxation authorities for which the failure to file could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time, respects when delivered;
(viii) Lessee is not in default in entering into this Lease, the payment of any Taxes shown to be payable on any such returns and no claim is being asserted with respect to Taxes that is not disclosed in the audited financial statements referred to in clause (i) above that if payable, could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time;
(k) the financial and other information furnished by or on behalf of Lessee to Lessor and its Affiliates in writing does not, to Lessee’s knowledge, contain any untrue statement of a material fact or omit to state any material fact the omission of which makes the statements therein, in the light of the circumstances under which they were made, misleading, nor omits to disclose any material matter that has or could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry by Lessee;
(l) Lessee, under applicable law, is subject to private commercial law and suit, and neither Lessee nor its properties or assets have any right of immunity from suit or execution on the grounds of sovereignty in the United States;
(m) no Default or Event of Default has occurred and is continuing;
(n) Lessee has not granted to, or registered in favor of, any person other than Lessor an “international interest,” “national interest,” “prospective international interest” (as such terms are defined in the Cape Town Convention) or a de-registration and export request authorization with respect to the Airframe Tax Indemnity Agreement or any Engine;
(o) assuming that no part of the assets to be used by Lessor to acquire its interest in the Aircraft or any Lender to provide financing in respect of the Aircraft constitutes assets of an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, a “plan” as defined in Section 4975 of the Code which is subject to Section 4975 of the Code, an entity whose underlying assets include “plan assets” by reason of any such employee benefit plan’s or plan’s investment in such entity, or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is similar to the prohibited other transaction provisions of Section 406 of ERISA or Section 4975 of the Code, the execution and delivery of this Agreement and the other Lessee’s Documents and the transactions contemplated hereby and or thereby will be exempt fromdirectly or indirectly, or will not involve any transaction which is subject to, the prohibitions of either Section 406 of ERISA or Section 4975 of the Code and will not involve any transaction in connection with any arrangement or understanding to which it is a penalty could be imposed under Section 502(i) party in any way involving an employee benefit plan or related trust (other than a governmental plan), all within the meaning of ERISA the Employee Retirement Income Security Act of 1974, as amended, or a tax could be imposed pursuant to Section 4975 of the Code; and
(pix) all insurance required by Section 13 hereof is in full force and effect and all premiums due in respect of such insurance have been paid.
(x) As between Lessor and Lessee and solely for purposes of this Lease, Lessee acknowledges and agrees that (a) the Equipment is of a size, design, function, capacity and manufacture acceptable to it, (b) Lessee is satisfied that the Equipment is suitable for its purposes, (c) Lessee has duly appointed had full opportunity to inspect the Equipment before accepting it, (d) the Equipment is leased thereunder subject to all applicable laws and registered an officer governmental regulations now in effect or hereafter adopted, (e) Lessor is not the manufacturer of Lessee with any of the International Registry an administrator to act on behalf Equipment, and (f) none of Lessee as a transacting user entitythe vendors of any of the Equipment are the agent of Lessor.
Appears in 1 contract
Lessee’s Representations and Warranties. Lessee acknowledges that each LESSEE represents and warrants, as of Lessor the Effective Date, and the other Lessor Parties, has entered into this Agreement and the other Operative Documents in full reliance on all such representations and warranties by Lessee in this Clause 2.1; and Lessee now represents and warrants to Lessor that the following statements are on the date hereofbeing continuing, and on the Delivery Date will be, true and accuratethat:
(a1) Lessee LESSEE is a sociedad anónima promotora de inversiones de capital variable that is corporation duly incorporated, validly organized and existing and in good standing under the laws Laws of the United Mexican States, Nevada and has full the corporate power and authority to conduct carry on its business as presently conducted, conducted and to own or hold under lease its assets, to enter into and perform its obligations under this Lease;
(2) This Lease and all other Lease Documents to which LESSEE is a party have been duly authorized by all necessary corporate action on the Lessee’s Documents part of LESSEE, does not require any approval of the stockholders of LESSEE (or if such approval is required, such approval has been obtained), and to consummate neither the execution and delivery hereof nor the consummation of the transactions contemplated hereby nor compliance by LESSEE with any of the Lessee’s Documentsterms and provisions hereof will contravene any Law applicable to LESSEE or result in any breach of, or constitute any default under, or result in the creation of, any lien, charge or encumbrance upon any property of LESSEE under any indenture, mortgage, chattel mortgage, deed of trust, conditional sales contract, bank loan or credit agreement, corporate charter or by-law, or other agreement or instrument to which LESSEE is a party or by which LESSEE or its properties or assets may be bound or affected;
(b3) Lessee’s organizational documents incorporate provisions that permitLESSEE has received or has complied with every required consent, approval, order, or authorization of, or registration with, or the giving of prior notice to, any Governmental Entity having jurisdiction with respect to the execution and delivery of this Lease and all necessary authorizations, approvals, consents, licenses, permits other Lease Documents to which LESSEE is a party or the validity and orders of enforceability hereof and registrations with any Government Entity, thereof,
(4) This Lease and all other Lease Documents to which LESSEE is a party have been duly and unconditionally obtained and are now in full force and effect that are required to authorize, Lessee to sign and deliver, and perform its obligations under and the transactions contemplated by, the Lessee’s Documents;
(c) Lessee has duly authorized, executed and delivered this Agreement and this Agreement constitutes, and the other Lessee’s Documents when executed entered into and delivered by Lessee will constituteLESSEE and constitutes a valid, legal, valid legal and binding obligations obligation of LesseeLESSEE, enforceable in accordance with their respective terms (its terms, except to the extent such as enforceability may be limited by insolvency, moratorium, bankruptcy, reorganization reorganization, moratorium or other laws affecting the rights similar Laws and by general principles of creditors generally)equity, whether considered in a proceeding at Law or in equity;
(d5) neither the execution and delivery of the Lessee’s Documents by Lessee nor the performance by Lessee of any of the transactions contemplated herein and therein will: (i) contravene There are no suits or constitute a violation or breach of or a default under any existing law or agreement by which Lessee or any of its assets is bound, any agreement to which it is a party or Lessee’s organizational documents; (ii) cause any limitation on Lessee or its assets or the powers of its directors or officers, whether imposed by or contained in Lessee’s organizational documents or any existing law, agreement or otherwise, to be exceeded; or (iii) result in the creation or imposition ofproceedings pending, or oblige Lessee to create, any Lien (other than Permitted Liens) over its undertaking or any of its assets, rights or revenues;
(e) except for such filings, registrations and recordings as are specified under this Agreement and the other Lessee’s Documents, it is not necessary or advisable under the laws of the State of Registration or the Habitual Base in order to ensure the validity, effectiveness or enforceability of any Lessee’s Document or to protect the rights of Lessor in the Aircraft or any part thereof that any Lessee’s Document or any other instrument be filed, registered or recorded or that any registration or any other action be taken, and under such laws, the rights of Lessor in the Aircraft will have priority in all respects over the claims of all creditors of Lessee;
(f) the obligations of Lessee under the Lessee’s Documents are, or upon execution thereof by Lessee will be, direct, general and unconditional obligations of Lessee and rank, or will rank, at least pari passu with all other present and future unsecured and unsubordinated obligations (including contingent obligations) of Lessee save for obligations mandatorily preferred by law and not by reason of any Lien;
(g) no event has occurred that constitutes a contravention of, or default under, any agreement by which Lessee or any of its assets is bound or affected, and that could reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents;
(h) no litigation, arbitration or administrative proceeding that could (by itself or together with any other such proceedings or claims) reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents is (to Lessee’s knowledge) presently in progress or pending against Lessee or any of its assets;
(i) the unaudited financial statements of Lessee prepared by Lessee’s management for the fiscal year ended December 31, 2010 have been prepared in accordance with Mexican generally accepted accounting principles and practices (“GAAPP”), and when delivered, the audited financial statements of Lessee for the fiscal year ended December 31, 2010 have been prepared in accordance with International Financial Reporting Standards and fairly present the results of its operations for that period and its financial condition at December 31, 2010 and, in particular, to the extent required by International Financial Reporting Standards accurately disclose knowledge of LESSEE, threatened against or reserve against all the liabilities (actual or contingent) of Lesseeaffecting LESSEE, and, to Lessee’s knowledge, after reasonable inquiry, there has been no material adverse change to the financial condition of Lessee since December 31, 2010, except as otherwise previously disclosed to Lessor in writing;
(j) all necessary returns have been timely delivered by Lessee to the applicable taxation authorities for which the failure to file could are reasonably be expected to have a material adverse effect on the financial condition or business of Lessee LESSEE or an adverse effect on Lessee’s upon LESSEE's ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account hereunder;
(6) LESSEE has filed or caused to be filed all other obligations that Lessee must observe material tax returns which are required to be filed by LESSEE and has paid or perform at that time, Lessee is not in default in the payment of any caused to be paid all Taxes shown to be due or payable on said returns or on any such returns assessment received by LESSEE, except those the validity of which is contested by LESSEE in good faith by appropriate proceedings duly instituted and no claim is being asserted with respect to Taxes that is not disclosed in the audited financial statements referred to in clause (i) above that if payable, could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that timediligently prosecuted;
(k7) the financial LESSEE is an "air carrier operating under a certificate of convenience and other information furnished by or on behalf necessity," as such quoted language is used and defined under 11 U.S.C. ss. 1110 ("Section 1110"), and this Lease constitutes a "lease" under Section 1110 and LESSEE is a Certificated Air Carrier pursuant to chapter 447 of Lessee to Lessor and its Affiliates in writing does not, to Lessee’s knowledge, contain any untrue statement of a material fact or omit to state any material fact the omission of which makes the statements therein, in the light Title 49 of the circumstances under which they were made, misleading, nor omits to disclose any material matter that has or could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry by LesseeUnited States Code;
(l) Lessee, under applicable law, is subject to private commercial law and suit, and neither Lessee nor its properties or assets have any right of immunity from suit or execution on the grounds of sovereignty in the United States;
(m) no Default or Event of Default has occurred and is continuing;
(n) Lessee has not granted to, or registered in favor of, any person other than Lessor an “international interest,” “national interest,” “prospective international interest” (as such terms are defined in the Cape Town Convention) or a de-registration and export request authorization with respect to the Airframe or any Engine;
(o) assuming that no part of the assets to be used by Lessor to acquire its interest in the Aircraft or any Lender to provide financing in respect of the Aircraft constitutes assets of an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, a “plan” as defined in Section 4975 of the Code which is subject to Section 4975 of the Code, an entity whose underlying assets include “plan assets” by reason of any such employee benefit plan’s or plan’s investment in such entity, or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is similar to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, the execution and delivery of this Agreement and the other Lessee’s Documents and the transactions contemplated hereby and thereby will be exempt from, or will not involve any transaction which is subject to, the prohibitions of either Section 406 of ERISA or Section 4975 of the Code and will not involve any transaction in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 of the Code; and
(p) Lessee has duly appointed and registered an officer of Lessee with the International Registry an administrator to act on behalf of Lessee as a transacting user entity.
Appears in 1 contract
Samples: Aircraft Lease Agreement (American Income Fund I-D)
Lessee’s Representations and Warranties. Lessee acknowledges that each of Lessor and the other Lessor Parties, has entered into this Agreement and the other Operative Documents in full reliance on representations and warranties by Lessee in this Clause 2.1; and Lessee now represents and warrants to Lessor that the following statements are on as of the date hereof, that Lessee signs this Master Agreement and on the Delivery as of each Lease Commencement Date will be, true and accuratepursuant to a Rental Schedule hereunder:
(ai) Lessee is a sociedad anónima promotora de inversiones de capital variable that is duly incorporatedorganized, validly existing and in good standing under the laws of the United Mexican Statesjurisdiction of its organization, and is qualified and in good standing to do business wherever necessary to carry on its present business and operations;
(ii) Lessee has full corporate power and authority to conduct its business as presently conducted, to own or hold under lease its assets, to enter into this Lease and the other instruments and documents executed by Lessee in connection herewith (together with this Lease, the "Transactional Documents") and to pay and perform its obligations under this Lease and the Lessee’s Documents and to consummate the transactions contemplated by the Lessee’s other Transactional Documents;
(biii) Lessee’s organizational documents incorporate provisions that permit, and all necessary authorizations, approvals, consents, licenses, permits and orders each of and registrations with any Government Entity, have been duly and unconditionally obtained and are now in full force and effect that are required to authorize, Lessee to sign and deliver, and perform its obligations under this Lease and the transactions contemplated by, the Lessee’s Documents;
(c) Lessee other Transactional Documents has been duly authorized, executed and delivered this Agreement and this Agreement constitutesby Lessee, and each constitutes the other Lessee’s Documents when executed and delivered by Lessee will constitutevalid, legal, valid legal and binding obligations obligation of Lessee, Lessee enforceable in accordance with their respective terms (except to the extent such enforceability may be limited by insolvency, moratorium, bankruptcy, reorganization or other laws affecting the rights of creditors generally)its terms;
(div) no vote or consent of, or notice to, the holders of any class of membership interest of Lessee is required, or if required, such vote or consent has been obtained or given, to authorize the execution, delivery and performance of this Lease and the other Transactional Documents by Lessee;
(v) neither the execution and delivery by Lessee of this Lease or the other Transactional Documents, nor the consummation by Lessee of the Lessee’s Documents transactions contemplated hereby or thereby, nor compliance by Lessee nor with the performance by Lessee provisions hereof or thereof, conflicts with or results in a breach of any of the transactions contemplated herein and therein will: (i) contravene provisions of any certificate of formation or constitute limited liability company agreement of Lessee, or of any applicable law, judgment, order, writ, injunction, decree, award, rule or regulation of any court, administrative agency or other governmental authority, or of any indenture, mortgage, deed of trust, other agreement or instrument of any nature to which Lessee is a violation party or breach of by which it or its property is bound or affected or pursuant to which it is constituted, or constitutes a default under any existing law thereof or agreement by which Lessee or any of its assets is bound, any agreement to which it is a party or Lessee’s organizational documents; (ii) cause any limitation on Lessee or its assets or the powers of its directors or officers, whether imposed by or contained in Lessee’s organizational documents or any existing law, agreement or otherwise, to be exceeded; or (iii) will result in the creation of any Lien upon any of the Equipment, other than the interests therein of Lessor or imposition ofany Assignee or a Permitted Lien, or oblige upon any other right or property of Lessee to create, or will in any Lien (other than Permitted Liens) over its undertaking manner materially and adversely affect Lessor's or any Assignee's right, title and interest in any of its assets, rights or revenuesthe Equipment;
(evi) except for such filingsno consent, registrations and recordings as are specified under this Agreement and the approval, withholding of objection or other Lessee’s Documentsauthorization of or by any court, it is not necessary or advisable under the laws of the State of Registration or the Habitual Base in order to ensure the validityadministrative agency, effectiveness or enforceability of any Lessee’s Document or to protect the rights of Lessor in the Aircraft or any part thereof that any Lessee’s Document other governmental authority or any other instrument be filedPerson is required, registered except such consents, approvals or recorded or that any registration or any other action be taken, authorizations which have been duly obtained and under such laws, the rights of Lessor are in the Aircraft will have priority in all respects over the claims of all creditors of Lesseefull force and effect;
(fvii) the obligations of Lessee under the Lessee’s Documents arethere are no actions, suits or upon execution thereof by Lessee will beproceedings pending, direct, general and unconditional obligations of Lessee and rank, or will rank, at least pari passu with all other present and future unsecured and unsubordinated obligations (including contingent obligations) of Lessee save for obligations mandatorily preferred by law and not by reason of any Lien;
(g) no event has occurred that constitutes a contravention of, or default under, any agreement by which Lessee or any of its assets is bound or affected, and that could reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents;
(h) no litigation, arbitration or administrative proceeding that could (by itself or together with any other such proceedings or claims) reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents is (to Lessee’s knowledge) presently in progress or pending against Lessee or any of its assets;
(i) the unaudited financial statements of Lessee prepared by Lessee’s management for the fiscal year ended December 31, 2010 have been prepared in accordance with Mexican generally accepted accounting principles and practices (“GAAPP”), and when delivered, the audited financial statements of Lessee for the fiscal year ended December 31, 2010 have been prepared in accordance with International Financial Reporting Standards and fairly present the results of its operations for that period and its financial condition at December 31, 2010 and, in particularor, to the extent required by International Financial Reporting Standards accurately disclose or reserve against all the liabilities (actual or contingent) knowledge of Lessee, andthreatened, to in any court or before any administrative agency or other governmental authority against or affecting Lessee’s knowledge, after reasonable inquirywhich, there has been no material adverse change to if adversely decided, would or could, individually or in the aggregate, materially and adversely affect the financial condition of Lessee since December 31or other condition, 2010business, except as otherwise previously disclosed to Lessor in writing;
(j) all necessary returns have been timely delivered by Lessee to the applicable taxation authorities for which the failure to file could reasonably be expected to have a material adverse effect on the financial condition operations, properties, assets or prospects of Lessee or an adverse effect on Lessee’s the ability of Lessee to observe or perform any of its obligations under this Lease or under the Lessee’s other Transactional Documents, taking into account all other obligations except for any such actions, suits or proceedings that Lessee must observe or perform at that time, Lessee is not has described in default in the payment of any Taxes shown writing to be payable on any such returns and no claim is being asserted with respect to Taxes that is not disclosed in the audited financial statements referred to in clause (i) above that if payable, could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that timeLessor;
(k) the financial and other information furnished by or on behalf of Lessee to Lessor and its Affiliates in writing does not, to Lessee’s knowledge, contain any untrue statement of a material fact or omit to state any material fact the omission of which makes the statements therein, in the light of the circumstances under which they were made, misleading, nor omits to disclose any material matter that has or could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry by Lessee;
(l) Lessee, under applicable law, is subject to private commercial law and suit, and neither Lessee nor its properties or assets have any right of immunity from suit or execution on the grounds of sovereignty in the United States;
(mviii) no Default or Event of Default has occurred and exists or is continuing;
(n) Lessee has not granted to, or registered in favor of, any person other than Lessor an “international interest,” “national interest,” “prospective international interest” (as such terms are defined in the Cape Town Convention) or a de-registration and export request authorization with respect to the Airframe or any Engine;
(o) assuming that no part of the assets to be used by Lessor to acquire its interest in the Aircraft or any Lender to provide financing in respect of the Aircraft constitutes assets of an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, a “plan” as defined in Section 4975 of the Code which is subject to Section 4975 of the Code, an entity whose underlying assets include “plan assets” by reason of any such employee benefit plan’s or plan’s investment in such entity, or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is similar to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, the execution and delivery of this Agreement and the other Lessee’s Documents and the transactions contemplated hereby and thereby will be exempt from, or will not involve any transaction which is subject to, the prohibitions of either Section 406 of ERISA or Section 4975 of the Code and will not involve any transaction in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 of the Code; and
(pix) Lessee has duly appointed possesses any and registered an officer of Lessee with all material authorizations, certifications and licenses which are or may be required to use and operate the International Registry an administrator to act on behalf of Lessee as a transacting user entityEquipment.
Appears in 1 contract
Samples: Master Ff&e Lease Agreement (Crestline Capital Corp)
Lessee’s Representations and Warranties. The Lessee acknowledges that each of Lessor and the other Lessor Parties, has entered into this Agreement and the other Operative Documents in full reliance on representations and warranties by Lessee in this Clause 2.1; and Lessee now --------------------------------------- represents and warrants to Lessor that the following statements are on the date hereofthat, and on as of the Delivery Date will be(unless any such representation and warranty is specifically made as of an earlier date, true in which case the Lessee represents and accurate:warrants as of such earlier date):
(a) the Lessee is a sociedad anónima promotora de inversiones de capital variable that is corporation duly incorporated, organized and validly existing and is in good standing under the laws of Delaware, has its principal place of business and chief executive office (as such terms are used in Article 9 of the United Mexican StatesUniform Commercial Code) in Morrisville, North Carolina at the address set forth in Section 12.01(a), and is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction where the failure to be so qualified or in good standing would have a materially adverse effect on its business or would impair its ability to perform its obligations under the Lessee Documents;
(b) the Lessee has full corporate power power, authority and authority legal right to conduct its business and operations as presently conducted, currently conducted and to own or hold under lease its assets, properties and to enter into and perform its obligations under the Lessee Documents;
(c) the Lessee is a Certificated Air Carrier;
(d) the Lessee possesses all necessary certificates, franchises, licenses, permits, rights and concessions and consents (collectively "permits") which are necessary to the operation of the routes flown by it and the conduct of its business and operations as currently conducted and each such permit is in full force and effect, except for any such permits the failure to have or maintain which would not have a material adverse effect on the Lessee or its ability to perform its obligations under the Lessee Documents;
(e) the execution, delivery and performance of the Lessee Documents by the Lessee have been duly authorized by all necessary corporate action on the part of the Lessee and do not require any stockholder approval, or approval or consent of any trustee or holder of any indebtedness or obligations of the Lessee’s , and each such Lessee Documents has been duly executed and delivered and constitutes the legal, valid and binding obligations of the Lessee enforceable against it in accordance with the terms thereof except as such enforceability may be limited by bankruptcy, insolvency, or other similar laws or by general equitable principles;
(f) no authorization, consent or approval of or other action by, and no notice to or filing with, any United States federal or state governmental authority or regulatory body is required for the execution, delivery or performance by the Lessee of the Lessee Documents except for such registrations, applications and recordings referred to in the opinion of Xxxxx and Xxxxxxx P.C. delivered pursuant to Section 3.01(b)(xix)(E) and the filings referred to in Section 3.01(l)(ii);
(g) neither the execution, delivery or performance by the Lessee of the Lessee Documents nor compliance with the terms and provisions hereof or thereof, conflicts or will conflict with or results or will result in a breach or violation of any of the terms, conditions or provisions of, or will require any consent (other than the PAA Consent and the Engine Manufacturer's Consent) or approval under, any Applicable Law or the charter documents, as amended, or bylaws, as amended, of the Lessee or any order, writ, injunction or decree of any court or governmental authority against the Lessee or by which it or any of its properties is bound or any indenture, mortgage or contract or other agreement or instrument to which the Lessee is a party or by which it or any of its properties is bound, or constitutes or will constitute a default thereunder or results or will result in the imposition of any Lien upon the Aircraft or any of its properties (other than Permitted Liens), except for any such conflict, breach or default which would not have a material adverse effect on the Lessee or the Participants or have a material adverse effect on Lessee's ability to perform its obligations under the Lessee Documents;
(h) except as disclosed in any of the filings of the Lessee referred to in Section 4.01(t) or as otherwise disclosed in writing to the Owner Participant and the Loan Participants, in each case prior to the execution and delivery hereof, there are no pending or, to the knowledge of the Lessee, threatened actions, suits, investigations or proceedings against or affecting the Lessee or any of its properties before or by any court, governmental agency, arbitration board, tribunal or other administrative agency which, (A) may reasonably be expected to have a materially adverse effect on the Lessee's consolidated financial condition, business, or operations, or (B) would materially adversely affect the ability of the Lessee to consummate the transactions contemplated by the Lessee’s Documents;
(b) Lessee’s organizational documents incorporate provisions that permit, and all necessary authorizations, approvals, consents, licenses, permits and orders of and registrations with any Government Entity, have been duly and unconditionally obtained and are now in full force and effect that are required to authorize, Lessee to sign and deliver, and perform its obligations under and the transactions contemplated by, the Lessee’s Documents;
(c) Lessee has duly authorized, executed and delivered this Agreement and this Agreement constitutes, and the other Lessee’s Documents when executed and delivered by Lessee will constitute, legal, valid and binding obligations of Lessee, enforceable in accordance with their respective terms (except to the extent such enforceability may be limited by insolvency, moratorium, bankruptcy, reorganization or other laws affecting the rights of creditors generally);
(d) neither the execution and delivery of the Lessee’s Documents by Lessee nor the performance by Lessee of any of the transactions contemplated herein and therein will: (i) contravene or constitute a violation or breach of or a default under any existing law or agreement by which Lessee or any of its assets is bound, any agreement to which it is a party or Lessee’s organizational documents; (ii) cause any limitation on Lessee or its assets or the powers of its directors or officers, whether imposed by or contained in Lessee’s organizational documents or any existing law, agreement or otherwise, to be exceeded; or (iii) result in the creation or imposition of, or oblige Lessee to create, any Lien (other than Permitted Liens) over its undertaking or any of its assets, rights or revenues;
(e) except for such filings, registrations and recordings as are specified under this Agreement and the other Lessee’s Documents, it is not necessary or advisable under the laws of the State of Registration or the Habitual Base in order to ensure the validity, effectiveness or enforceability of any Lessee’s Document or to protect the rights of Lessor in the Aircraft or any part thereof that any Lessee’s Document or any other instrument be filed, registered or recorded or that any registration or any other action be taken, and under such laws, the rights of Lessor in the Aircraft will have priority in all respects over the claims of all creditors of Lessee;
(f) the obligations of Lessee under the Lessee’s Documents are, or upon execution thereof by Lessee will be, direct, general and unconditional obligations of Lessee and rank, or will rank, at least pari passu with all other present and future unsecured and unsubordinated obligations (including contingent obligations) of Lessee save for obligations mandatorily preferred by law and not by reason of any Lien;
(g) no event has occurred that constitutes a contravention of, or default under, any agreement by which Lessee or any of its assets is bound or affected, and that could reasonably be expected to have a material adverse effect on Lessee’s ability to observe Operative Agreements or perform its obligations under the Lessee’s Lessee Documents;
(h) no litigation, arbitration or administrative proceeding that could (by itself or together with any other such proceedings or claims) reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents is (to Lessee’s knowledge) presently in progress or pending against Lessee or any of its assets;
(i) the unaudited financial statements of Lessee prepared by Lessee’s management for the fiscal year ended December 31, 2010 have been prepared in accordance with Mexican generally accepted accounting principles and practices (“GAAPP”), and when delivered, the audited financial statements of Lessee for the fiscal year ended December 31, 2010 have been prepared in accordance with International Financial Reporting Standards and fairly present the results of its operations for that period and its financial condition at December 31, 2010 and, in particular, to the extent required by International Financial Reporting Standards accurately disclose or reserve against all the liabilities (actual or contingent) of Lessee, and, to Lessee’s knowledge, after reasonable inquiry, there has been no material adverse change to the financial condition of Lessee since December 31, 2010, except as otherwise previously disclosed to Lessor in writing;
(j) all necessary returns have been timely delivered by Lessee to the applicable taxation authorities for which the failure to file could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time, Lessee is not in default in the payment of any Taxes shown to be payable on any such returns and no claim is being asserted with respect to Taxes that is not disclosed in the audited financial statements referred to in clause (i) above that if payable, could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time;
(k) the financial and other information furnished by or on behalf of Lessee to Lessor and its Affiliates in writing does not, to Lessee’s knowledge, contain any untrue statement of a material fact or omit to state any material fact the omission of which makes the statements therein, in the light of the circumstances under which they were made, misleading, nor omits to disclose any material matter that has or could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry by Lessee;
(l) Lessee, under applicable law, is subject to private commercial law and suit, and neither Lessee nor its properties or assets have any right of immunity from suit or execution on the grounds of sovereignty in the United States;
(m) no Default or Event of Default has occurred and is continuing;
(n) Lessee has not granted to, or registered in favor of, any person other than Lessor an “international interest,” “national interest,” “prospective international interest” (as such terms are defined in the Cape Town Convention) or a de-registration and export request authorization with respect to the Airframe or any Engine;
(o) assuming that no part of the assets to be used by Lessor to acquire its interest in the Aircraft or any Lender to provide financing in respect of the Aircraft constitutes assets of an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, a “plan” as defined in Section 4975 of the Code which is subject to Section 4975 of the Code, an entity whose underlying assets include “plan assets” by reason of any such employee benefit plan’s or plan’s investment in such entity, or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is similar to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, the execution and delivery of this Agreement and the other Lessee’s Documents and the transactions contemplated hereby and thereby will be exempt from, or will not involve any transaction which is subject to, the prohibitions of either Section 406 of ERISA or Section 4975 of the Code and will not involve any transaction in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 of the Code; and
(p) Lessee has duly appointed and registered an officer of Lessee with the International Registry an administrator to act on behalf of Lessee as a transacting user entity.
Appears in 1 contract
Lessee’s Representations and Warranties. The Lessee acknowledges that each of Lessor represents, warrants and covenants that: (A) the other Lessor Parties, has entered into this Agreement and the other Operative Documents in full reliance on representations and warranties by Lessee in this Clause 2.1; and Lessee now represents and warrants to Lessor that the following statements are on the date hereof, and on the Delivery Date will be, true and accurate:
(ai) Lessee is a sociedad anónima promotora de inversiones de capital variable that is corporation duly incorporatedorganized, validly existing and in good standing under the laws of the United Mexican StatesState of California, (ii) has duly qualified and is authorized to do business and is in good standing as a foreign corporation in each jurisdiction where failure to qualify could have a direct material adverse effect on the business or financial condition of Lessee, and (iii) has full the corporate power and authority to conduct carry on its business as presently conducted, conducted and to own or hold under lease its assets, to enter into and perform its obligations under this Lease; (B) the Lessee’s Documents and to consummate the transactions contemplated by the Lessee’s Documents;
(b) Lessee’s organizational documents incorporate provisions that permitLessee is a Certified Air Carrier, and holds all necessary authorizationslicenses, approvals, consents, licensescertificates, permits and orders franchises from the appropriate agencies of the United States of America and/or all other governmental authorities having jurisdiction, necessary to authorize the Lessee to engage in air transportation of passengers and registrations to carry on its business as presently conducted and to be conducted with the Aircraft; (C) the execution, delivery and performance of this Lease (including any Government Entity, Lease Supplements) have been duly authorized by all necessary corporate action on the part of the Lessee, do not require any shareholder approval, or approval or consent of any trustee or holders of any indebtedness or obligations of the Lessee (except for approval or consent previously obtained) and unconditionally obtained do not and are now will not contravene any law, governmental rule, regulation or order binding on the Lessee or the articles of incorporation or code of regulations of the Lessee or contravene the provisions of, or constitute a default under, or result in full force the creation of any Lien (other than as permitted under this Lease) upon the property of the Lessee under any indenture, mortgage, deed of trust, conditional sales contract, bank loan or credit agreement, contract or other agreement to which it may be a party or by which its property may be bound; (D) neither the execution and effect that are required to authorizedelivery by the Lessee of this Lease (including any Lease Supplements), Lessee to sign and deliver, and perform its obligations under and nor the consummation of any of the transactions by the Lessee contemplated byhereby requires the consent or approval of, the Lessee’s Documents;
giving of notice to, or the registration with, or the taking of any other action in respect of, any Aeronautics Authority, or any other Federal or state governmental authority or agency, including any judicial body or any other person, entity or corporation, except for the registration and recordation of this Lease, including any Lease Supplements, with the FAA; (cE) Lessee this Lease has been duly authorized, executed and delivered this Agreement by the Lessee and this Agreement constitutes, and the other Lessee’s Documents Lease Supplements when executed entered into and delivered by Lessee will constitute, legalvalid, valid enforceable and binding obligations of Lessee, enforceable the Lessee in accordance with their respective terms (except to the extent such as enforceability may be limited by bankruptcy, insolvency, moratorium, bankruptcy, reorganization or other laws of general application affecting the enforcement of creditors' rights and by general principles of creditors generallyequity; (F) except as disclosed in Lessee's opinion of counsel required by Section 2.4 (A)(4);
(d) neither , there are no suits or proceedings pending or, to the execution and delivery knowledge of the Lessee’s Documents by , threatened against or affecting the Lessee nor the performance by in any court or before any regulatory commission, board or other administrative governmental agency, which if determined adversely to Lessee of any of the transactions contemplated herein and therein will: (i) contravene or constitute a violation or breach of or a default under any existing law or agreement by which Lessee or any of its assets is bound, any agreement to which it is a party or Lessee’s organizational documents; (ii) cause any limitation on Lessee or its assets or the powers of its directors or officers, whether imposed by or contained in Lessee’s organizational documents or any existing law, agreement or otherwise, to be exceeded; or (iii) result in the creation or imposition of, or oblige Lessee to create, any Lien (other than Permitted Liens) over its undertaking or any of its assets, rights or revenues;
(e) except for such filings, registrations and recordings as are specified under this Agreement and the other Lessee’s Documents, it is not necessary or advisable under the laws of the State of Registration or the Habitual Base in order to ensure the validity, effectiveness or enforceability of any Lessee’s Document or to protect the rights of Lessor in the Aircraft or any part thereof that any Lessee’s Document or any other instrument be filed, registered or recorded or that any registration or any other action be taken, and under such laws, the rights of Lessor in the Aircraft will have priority in all respects over the claims of all creditors of Lessee;
(f) the obligations of Lessee under the Lessee’s Documents are, or upon execution thereof by Lessee will be, direct, general and unconditional obligations of Lessee and rank, or will rank, at least pari passu with all other present and future unsecured and unsubordinated obligations (including contingent obligations) of Lessee save for obligations mandatorily preferred by law and not by reason of any Lien;
(g) no event has occurred that constitutes a contravention of, or default under, any agreement by which Lessee or any of its assets is bound or affected, and that could reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents;
(h) no litigation, arbitration or administrative proceeding that could (by itself or together with any other such proceedings or claims) reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents is (to Lessee’s knowledge) presently in progress or pending against Lessee or any of its assets;
(i) the unaudited financial statements of Lessee prepared by Lessee’s management for the fiscal year ended December 31, 2010 have been prepared in accordance with Mexican generally accepted accounting principles and practices (“GAAPP”), and when delivered, the audited financial statements of Lessee for the fiscal year ended December 31, 2010 have been prepared in accordance with International Financial Reporting Standards and fairly present the results of its operations for that period and its financial condition at December 31, 2010 and, in particular, to the extent required by International Financial Reporting Standards accurately disclose or reserve against all the liabilities (actual or contingent) of Lessee, and, to Lessee’s knowledge, after reasonable inquiry, there has been no material adverse change to the financial condition of Lessee since December 31, 2010, except as otherwise previously disclosed to Lessor in writing;
(j) all necessary returns have been timely delivered by Lessee to the applicable taxation authorities for which the failure to file could reasonably be expected to would have a material adverse effect on the financial condition or business of the Lessee or an adverse effect on Lessee’s the ability of the Lessee to observe or perform any of its obligations under this Lease; (G) except (A) the Lessee’s Documentsregistration in lessor's name of the Aircraft pursuant to the Federal Aviation Act and (B) for the filing for registration and recordation of this Lease and the Lease Supplements with the FAA and UCC financing statements in Virginia, taking into account no further filing or recording of this Lease or any Lease Supplement or of any other document is necessary under the Federal Aviation Act, or under the laws of any other jurisdiction in order to fully protect, establish and perfect in all other obligations that applicable jurisdictions in the United States, Lessor's title to and leasehold interest in the Aircraft as against Lessee must observe or perform at that timeand any third parties; (H) for the purposes of the Federal Aviation Act, the Lessee is not a "citizen of the United States" as defined in default Section 40102(a)(15) of the Federal Aviation Act and the regulations pursuant to such Section; (I) its chief executive office (as that term is used in Article 9 of the Uniform Commercial Code) and the place where it keeps its corporate records concerning the Aircraft, all its interest in the payment of any Taxes shown to be payable on any such returns Lease and related documents, are located in Sterling, Virginia; (J) there has been no claim is being asserted with respect to Taxes that is not disclosed in the audited financial statements referred to in clause (i) above that if payable, could reasonably be expected to have a material adverse effect on change in the financial condition of Lessee since ___________, 1996; (K) no event exists which constitutes a Default or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time;
(k) the financial and other information furnished by or on behalf of Lessee to Lessor and its Affiliates in writing does not, to Lessee’s knowledge, contain any untrue statement of a material fact or omit to state any material fact the omission of which makes the statements therein, in the light of the circumstances under which they were made, misleading, nor omits to disclose any material matter that has or could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry by Lessee;
(l) Lessee, under applicable law, is subject to private commercial law and suit, and neither Lessee nor its properties or assets have any right of immunity from suit or execution on the grounds of sovereignty in the United States;
(m) no Default or Event of Default has occurred on the Delivery Date; and is continuing;
(nL) Lessee has not granted to, or registered in favor of, any person other than Lessor an “international interest,” “national interest,” “prospective international interest” (as such terms are defined all of the financial information contained in the Cape Town Convention) or a de-registration Form 10Q of Lessee's parent filed with the Securities and export request authorization with respect to Exchange Commission for the Airframe or any Engine;
(o) assuming that no part period ending ______________, 1996 is true and correct as of the assets to be used by Lessor to acquire its interest in the Aircraft or any Lender to provide financing in respect of the Aircraft constitutes assets of an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, a “plan” as defined in Section 4975 of the Code which is subject to Section 4975 of the Code, an entity whose underlying assets include “plan assets” by reason of any such employee benefit plan’s or plan’s investment in such entity, or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is similar to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, the execution and delivery of this Agreement and the other Lessee’s Documents and the transactions contemplated hereby and thereby will be exempt from, or will not involve any transaction which is subject to, the prohibitions of either Section 406 of ERISA or Section 4975 of the Code and will not involve any transaction in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 of the Code; and
(p) Lessee has duly appointed and registered an officer of Lessee with the International Registry an administrator to act on behalf of Lessee as a transacting user entitydate thereof.
Appears in 1 contract
Lessee’s Representations and Warranties. The Lessee acknowledges that each of Lessor and the other Lessor Parties, has entered into this Agreement and the other Operative Documents in full reliance on representations and warranties by Lessee in this Clause 2.1; and Lessee now represents and warrants to Lessor that the following statements are Owner Participant, the Owner Trustee (in its individual capacity and as Owner Trustee), the Pass Through Trustee (in its individual capacity and as Pass Through Trustee) and the Indenture Trustee (in its individual capacity and as Indenture Trustee) that, on the date hereof, hereof and on as of the Delivery Date will be, true and accurateRefunding Date:
(a) the Lessee is a sociedad anónima promotora de inversiones de capital variable that is corporation duly incorporated, organized and validly existing and is in good standing under the laws of the United Mexican StatesState of Delaware with its principal place of business and chief executive office (as such terms are used in Article 9 of the Uniform Commercial Code) in Memphis, Tennessee, and is duly qualified to do business as a foreign corporation and is in good standing in all jurisdictions in which it has intrastate routes, or offices or major overhaul facilities or in which other activities of the Lessee require such qualification;
(b) the Lessee has full corporate power power, authority and authority legal right to conduct its business and operations as presently conducted, currently conducted and to own or hold under lease its assets, Properties and to enter into and perform its obligations under this Agreement, the Lessee’s Documents and Original Agreements to consummate which it is a party, the transactions contemplated by other Operative Agreements to which it is a party, the Lessee’s Documents;
(b) Lessee’s organizational documents incorporate provisions that permit, and all necessary authorizations, approvals, consents, licenses, permits and orders of and registrations with any Government Entity, have been duly and unconditionally obtained and are now in full force and effect that are required to authorize, Lessee to sign and deliver, and perform its obligations under Pass Through Agreement and the transactions contemplated by, Series Supplements (the Lessee’s "Lessee Documents");
(c) the Lessee has duly authorized, executed is an "air carrier" within the meaning of the Transportation Code and delivered this Agreement a holder of a certificate under Sections 41102(a) and this Agreement constitutes41103 of the Transportation Code and a "citizen of the United States" within the meaning of Section 40102(a)(15) of the Transportation Code holding an "air carrier operating certificate" issued under Chapter 447 of the Transportation Code for aircraft capable of carrying ten (10) or more individuals or 6,000 pounds or more of cargo, and each such certificate is in full force and effect;
(d) the other Lessee possesses all necessary certificates, franchises, licenses, permits, rights and concessions and consents (collectively "permits") which are material to the operation of the routes flown by it and the conduct of its business and operations as currently conducted and each such permit is in full force and effect;
(e) the execution, delivery and performance of the Lessee Documents by the Lessee have been duly authorized by all necessary corporate action on the part of the Lessee and do not require any stockholder approval, or approval or consent of any trustee or holder of any indebtedness or obligations of the Lessee’s Documents when , and each such document has been duly executed and delivered by the Lessee will constitute, and constitutes the legal, valid and binding obligations of Lessee, the Lessee enforceable against it in accordance with their respective the terms (thereof except to the extent as such enforceability may be limited by bankruptcy, insolvency, moratorium, bankruptcy, reorganization or other similar laws or equitable principles of general application to or affecting the enforcement of creditors' rights generally (regardless of creditors generallywhether enforceability is considered in a proceeding in equity or at law);
(df) no authorization, consent or approval of or other action by, and no notice to or filing with, any United States federal or state governmental authority or regulatory body is required for the execution, delivery or performance by the Lessee of the Lessee Documents or for the use and maintenance of the Aircraft except for such registrations, applications and recordings referred to in the opinions of Special Aviation Counsel delivered or to be delivered pursuant to Sections 4.01(l)(iv) and 4.02 hereof and except for the filings referred to in Section 4.01(f) hereof, all of which shall have been duly obtained or made and shall be in full force and effect on and as of the Refunding Date or as contemplated by said Sections;
(g) neither the execution and execution, delivery or performance by the Lessee of the Lessee’s Lessee Documents by Lessee nor compliance with the performance by Lessee terms and provisions hereof or thereof, conflicts or will conflict with or results or will result in a breach or violation of any of the transactions contemplated herein and therein will: (i) contravene terms, conditions or provisions of, or will require any consent or approval under, any law, governmental rule or regulation or the charter documents, as amended, or bylaws, as amended, of the Lessee or any order, writ, injunction or decree of any court or governmental authority against the Lessee or by which it or any of its Properties is bound or any indenture, mortgage or contract or other agreement or instrument to which the Lessee is a party or by which it or any of its Properties is bound, or constitutes or will constitute a violation default thereunder or breach results or will result in the imposition of any Lien upon any of its Properties;
(h) there are no pending or, to the knowledge of the Lessee, threatened actions, suits, investigations or a default under any existing law proceedings (whether or agreement by which not purportedly on behalf of the Lessee) against or affecting the Lessee or any of its assets is boundProperty before or by any court or administrative agency which (A) involve the Aircraft, any agreement to which it is a party or Lessee’s organizational documents; (ii) cause any limitation on Lessee or its assets or the powers of its directors or officers, whether imposed by or contained in Lessee’s organizational documents or any existing law, agreement or otherwise, to be exceeded; or (iii) result in the creation or imposition of, or oblige Lessee to create, any Lien (other than Permitted Liens) over its undertaking or any of its assets, rights or revenues;
(eB) except for such filingsthe matters described under "Legal Proceedings" in the Lessee's Annual Report on Form 10-K for the fiscal year ended May 31, registrations and recordings 1995 (as are specified under this Agreement and updated by Note 7 to the other financial statement included in the Lessee’s Documents's Quarterly Report on Form 10-Q for the fiscal quarter ended August 31, it 1995), as to which no representation is not necessary made concerning the Lessee's liability (if any) or advisable under the laws effect of any adverse determination upon the consolidated financial condition, business or operations of the State Lessee, if adversely determined, would materially and adversely affect the consolidated financial condition, business or operations of Registration or the Habitual Base in order to ensure the validity, effectiveness or enforceability of any Lessee’s Document or to protect the rights of Lessor in the Aircraft or any part thereof that any Lessee’s Document or any other instrument be filed, registered or recorded or that any registration or any other action be taken, and under such laws, the rights of Lessor in the Aircraft will have priority in all respects over the claims of all creditors of Lessee;
(f) the obligations of Lessee under the Lessee’s Documents are, or upon execution thereof by (C) if adversely determined would adversely affect the ability of the Lessee will be, direct, general and unconditional obligations of Lessee and rank, or will rank, at least pari passu with all other present and future unsecured and unsubordinated obligations (including contingent obligations) of Lessee save for obligations mandatorily preferred by law and not by reason of any Lien;
(g) no event has occurred that constitutes a contravention of, or default under, any agreement by which Lessee or any of its assets is bound or affected, and that could reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Lessee Documents;
(h) no litigation, arbitration or administrative proceeding that could (by itself or together with any other such proceedings or claims) reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents is (to Lessee’s knowledge) presently in progress or pending against Lessee or any of its assets;
(i) the unaudited Lessee and its subsidiaries have filed or caused to be filed all tax returns which are required to be filed and has paid or caused to be paid all taxes shown to be due and payable pursuant to such returns or pursuant to any assessment received by the Lessee (other than assessments the payment of which is being contested in good faith by the Lessee), and the Lessee has no knowledge of any related actual or proposed deficiency or additional assessment which either in any case or in the aggregate would materially adversely affect the Lessee's consolidated financial condition (other than, in any such case, assessments, the payment of which is being contested in good faith by the Lessee, as to which no representation is made concerning the Lessee's liability (if any) or the effect of any adverse determination upon the Lessee's consolidated financial condition);
(j) except for (A) the filing and, where appropriate, recordation pursuant to the Act of the Indenture, the Trust Agreement and the Lease, (B) the filing of the financing statements referred to in Section 4.01(f) hereof and (C) the taking of possession by the Indenture Trustee of the original counterpart of the Lease and maintaining possession of the original counterpart of the Lease Supplement delivered on the Delivery Date, no further action, including any filing or recording of any document, is necessary or advisable in order (i) to establish the Owner Trustee's title to and interest in the Aircraft and the Lessor's Estate as against the Lessee prepared and any third parties, or (ii) to perfect the first security interests in and mortgage Lien on the Trust Indenture Estate in favor of the Indenture Trustee;
(k) on the Delivery Date, the Owner Trustee received good and marketable title to the Aircraft, free and clear of all Liens, except the rights of the Owner Trustee and the Lessee under the Original Lease, the rights of the Indenture Trustee under the Original Indenture and the beneficial interest of the Owner Participant created by the Original Trust Agreement and the interest of the Original Loan Participants created by the Original Indenture and the Indenture and Security Supplement covering the Aircraft;
(l) the Lessee has heretofore delivered to the Owner Participant true and correct copies of the Lessee’s management 's Annual Report on Form 10-K for the fiscal year ended December May 31, 2010 1995 and its Quarterly Report on Form 10-Q for the fiscal quarter ended August 31, 1995, and of the audited consolidated balance sheet of the Lessee for the fiscal year ended May 31, 1995 and the unaudited consolidated balance sheet of the Lessee as of August 31, 1995, and the related consolidated statements of income, changes in common stockholders' investment and cash flows for the fiscal year and interim reporting period ended on such dates, accompanied (except in the case of such interim reporting period) by a report thereon containing opinions without qualification, except as therein noted, by Arthur Andersen & Co., independent public accountants; said fixxxxxxl xxxxxxxnts have been prepared in accordance with Mexican generally accepted accounting principles consistently applied and practices (“GAAPP”), present fairly the financial position of the Lessee as of such dates and when delivered, the audited financial statements of Lessee for the fiscal year ended December 31, 2010 have been prepared in accordance with International Financial Reporting Standards and fairly present the results of its operations and cash flows for that period such periods and its financial condition at December 31such Annual Reports, 2010 and, in particular, to the extent required by International Financial Reporting Standards accurately disclose or reserve against all the liabilities (actual or contingent) of Lessee, and, to Lessee’s knowledge, after reasonable inquiry, there has been no material adverse change to the financial condition of Lessee since December 31, 2010, except as otherwise previously disclosed to Lessor in writing;
(j) all necessary returns have been timely delivered by Lessee to the applicable taxation authorities for which the failure to file could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time, Lessee is not in default in the payment of any Taxes shown to be payable on any such returns Quarterly Reports and no claim is being asserted with respect to Taxes that is not disclosed in the audited financial statements referred to in clause (i) above that if payable, could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time;
(k) the financial and other information furnished by or on behalf of Lessee to Lessor and its Affiliates in writing does did not, to Lessee’s knowledgeas of their respective dates of filing with the SEC, contain any untrue statement of a material fact or omit to state any a material fact the omission of which makes necessary to make the statements therein, contained therein not misleading and there has been no material adverse change in the light consolidated financial condition of the circumstances under which they were madeLessee since August 31, misleading1995;
(m) with respect to ERISA, except as otherwise disclosed:
(i) none of the Pension Plans (as defined at the end of this Section 6.01(m)) nor their related trusts have been terminated in a distress termination pursuant to Section 4041(c) of ERISA or by the Pension Benefit Guaranty Corporation or any successor agency or instrumentality thereto (the "PBGC") pursuant to Section 4042 of ERISA, nor omits have any actions been taken to disclose so terminate any material matter that Pension Plan or related trust and neither the Lessee nor any ERISA Affiliate has incurred or could reasonably be expected to incur any material liability with respect to a Pension Plan under Section 4062, 4063, 4064 or 4069 of ERISA;
(ii) there have a been no "reportable events" (as such term is defined in Section 4043(b) of ERISA) with respect to any Pension Plan which have resulted or could reasonably be expected to result in any material adverse effect on liability of the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry by Lessee;
(liii) Lesseeno "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code) exists with respect to any Pension Plan, whether or not waived, nor has any request for a waiver under applicable lawSection 412(d) of the Code been, or is subject reasonably likely to private commercial law and suitbe, and neither Lessee nor its properties or assets have filed with respect to any right of immunity from suit or execution on the grounds of sovereignty in the United StatesPension Plans;
(miv) no Default neither the Lessee nor any ERISA Affiliate has failed to make any contribution or Event payment to any Pension Plan which has resulted or could reasonably be expected to result in the imposition of Default has occurred and is continuinga Lien under Section 302(f) of ERISA or Section 412(n) of the Code;
(nv) Lessee has not granted to, or registered all Pension Plans are in favor of, any person other than Lessor an “international interest,” “national interest,” “prospective international interest” (as such terms are defined compliance in all material respects with all applicable provisions of ERISA and the Cape Town Convention) or a de-registration and export request authorization with respect to the Airframe or any EngineCode;
(ovi) assuming that no part neither the Lessee nor any ERISA Affiliate has incurred or is reasonably likely to incur any material withdrawal liability pursuant to Section 4201 or 4204 of ERISA or any material liability under Section 515 of ERISA;
(vii) to the best of the assets to be used by Lessor to acquire its interest Lessee's knowledge, neither the Lessee nor any ERISA Affiliate has engaged in a "prohibited transaction" (within the Aircraft or any Lender to provide financing in respect meaning of the Aircraft constitutes assets of an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, a “plan” as defined in Section 4975 of the Code or Section 406 of ERISA) which is could reasonably be expected to subject the Lessee to the tax or penalties on prohibited transactions imposed by Section 4975 of the CodeCode or Section 502 of ERISA; and
(viii) assuming (A) the truth of the representations contained in Sections 7.03(a)(viii) and 7.09 hereof, (B) the applicability of an entity whose underlying assets include “plan assets” by reason of any such employee benefit plan’s or plan’s investment in such entity, individual or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is similar class prohibited transaction exemption ("PTE") to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 transactions contemplated hereby, and (C) the compliance with all of the Codeconditions of a PTE, the execution and delivery of this Agreement and the other Lessee’s Documents Operative Agreements and the consummation of the transactions contemplated hereby and thereby will be exempt from, or will not involve any transaction which is subject to, the prohibitions of either prohibited by Section 406 of ERISA or Section 4975 of the Code and will not involve any transaction in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 of the Code; and
(p) . No part of the funds to be used by the Lessee has duly appointed and registered in satisfaction of its obligations under this Agreement or any other of the Operative Agreements to which the Lessee is a party or to which the Lessee is bound are the assets of any employee benefit plan subject to Title I of ERISA, or any individual retirement account or an officer employee benefit plan subject to Section 4975 of Lessee with the International Registry an administrator to act on behalf of Lessee as a transacting user entityCode.
Appears in 1 contract
Lessee’s Representations and Warranties. The Lessee acknowledges that each of Lessor and the other Lessor Parties, has entered into this Agreement and the other Operative Documents in full reliance on representations and warranties by Lessee in this Clause 2.1; and Lessee now represents and warrants to Lessor that the following statements are on the date hereofthat, and on as of the Delivery Date will be(unless any such representation and warranty is specifically made as of an earlier date, true in which case the Lessee represents and accurate:warrants as of such earlier date):
(a) the Lessee is a sociedad anónima promotora de inversiones de capital variable that is corporation duly incorporated, organized and validly existing and is in good standing under the laws of Delaware, has its principal place of business and chief executive office (as such terms are used in Article 9 of the United Mexican StatesUniform Commercial Code) in Durham, North Carolina, and is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction where the failure to be so qualified or in good standing would have a materially adverse effect on its business or would impair its ability to perform its obligations under the Lessee Documents;
(b) the Lessee has full corporate power power, authority and authority legal right to conduct its business and operations as presently conducted, currently conducted and to own or hold under lease its assets, properties and to enter into and perform its obligations under the Lessee Documents;
(c) the Lessee is an "air carrier" within the meaning of the Transportation Code and a holder of a certificate under Section 41102(a) of the Transportation Code and a "citizen of the United States" within the meaning of Section 40102(a)(15) of the Transportation Code holding an "air carrier operating certificate" issued under Chapter 447 of the Transportation Code for aircraft capable of carrying ten or more individuals or 6,000 pounds or more of cargo, and each such certificate is in full force and effect;
(d) the Lessee possesses all necessary certificates, franchises, licenses, permits, rights and concessions and consents (collectively "permits") which are necessary to the operation of the routes flown by it and the conduct of its business and operations as currently conducted and each such permit is in full force and effect, except for any such permits the failure to have or maintain which would not have a material adverse effect on the Lessee or its ability to perform its obligations under the Lessee Documents;
(e) the execution, delivery and performance of the Lessee Documents by the Lessee have been duly authorized by all necessary corporate action on the part of the Lessee and do not require any stockholder approval, or approval or consent of any trustee or holder of any indebtedness or obligations of the Lessee’s , and each such Lessee Documents has been duly executed and delivered and constitutes the legal, valid and binding obligations of the Lessee enforceable against it in accordance with the terms thereof except as such enforceability may be limited by bankruptcy, insolvency, or other similar laws or by general equitable principles;
(f) no authorization, consent or approval of or other action by, and no notice to or filing with, any United States federal or state governmental authority or regulatory body is required for the execution, delivery or performance by the Lessee of the Lessee Documents except for such registrations, applications and recordings referred to in the opinion of Xxxxx and Xxxxxxx P.C. delivered pursuant to Sections 3.01(b)(xviii)(E) and the filings referred to in Section 3.01(l)(ii);
(g) neither the execution, delivery or performance by the Lessee of the Lessee Documents nor compliance with the terms and provisions hereof or thereof, conflicts or will conflict with or results or will result in a breach or violation of any of the terms, conditions or provisions of, or will require any consent (other than the PAA Consent and the Engine Manufacturer's Consent) or approval under, any law, governmental rule or regulation or the charter documents, as amended, or bylaws, as amended, of the Lessee or any order, writ, injunction or decree of any court or governmental authority against the Lessee or by which it or any of its properties is bound or any indenture, mortgage or contract or other agreement or instrument to which the Lessee is a party or by which it or any of its properties is bound, or constitutes or will constitute a default thereunder or results or will result in the imposition of any Lien upon the Aircraft or any of its properties (other than Permitted Liens), except for any such conflict, breach or default which would not have a material adverse effect on the Lessee or its ability to perform its obligations under the Lessee Documents;
(h) except as disclosed in the Offering Memo, there are no pending or, to the knowledge of the Lessee, threatened actions, suits, investigations or proceedings against or affecting the Lessee or any of its properties before or by any court, governmental agency, arbitration board, tribunal or other administrative agency which, (A) may reasonably be expected to have a materially adverse effect on the Lessee's consolidated financial condition, business, or operations, or (B) would materially adversely affect the ability of the Lessee to consummate the transactions contemplated by the Lessee’s Documents;
(b) Lessee’s organizational documents incorporate provisions that permit, and all necessary authorizations, approvals, consents, licenses, permits and orders of and registrations with any Government Entity, have been duly and unconditionally obtained and are now in full force and effect that are required to authorize, Lessee to sign and deliver, and perform its obligations under and the transactions contemplated by, the Lessee’s Documents;
(c) Lessee has duly authorized, executed and delivered this Agreement and this Agreement constitutes, and the other Lessee’s Documents when executed and delivered by Lessee will constitute, legal, valid and binding obligations of Lessee, enforceable in accordance with their respective terms (except to the extent such enforceability may be limited by insolvency, moratorium, bankruptcy, reorganization or other laws affecting the rights of creditors generally);
(d) neither the execution and delivery of the Lessee’s Documents by Lessee nor the performance by Lessee of any of the transactions contemplated herein and therein will: (i) contravene or constitute a violation or breach of or a default under any existing law or agreement by which Lessee or any of its assets is bound, any agreement to which it is a party or Lessee’s organizational documents; (ii) cause any limitation on Lessee or its assets or the powers of its directors or officers, whether imposed by or contained in Lessee’s organizational documents or any existing law, agreement or otherwise, to be exceeded; or (iii) result in the creation or imposition of, or oblige Lessee to create, any Lien (other than Permitted Liens) over its undertaking or any of its assets, rights or revenues;
(e) except for such filings, registrations and recordings as are specified under this Agreement and the other Lessee’s Documents, it is not necessary or advisable under the laws of the State of Registration or the Habitual Base in order to ensure the validity, effectiveness or enforceability of any Lessee’s Document or to protect the rights of Lessor in the Aircraft or any part thereof that any Lessee’s Document or any other instrument be filed, registered or recorded or that any registration or any other action be taken, and under such laws, the rights of Lessor in the Aircraft will have priority in all respects over the claims of all creditors of Lessee;
(f) the obligations of Lessee under the Lessee’s Documents are, or upon execution thereof by Lessee will be, direct, general and unconditional obligations of Lessee and rank, or will rank, at least pari passu with all other present and future unsecured and unsubordinated obligations (including contingent obligations) of Lessee save for obligations mandatorily preferred by law and not by reason of any Lien;
(g) no event has occurred that constitutes a contravention of, or default under, any agreement by which Lessee or any of its assets is bound or affected, and that could reasonably be expected to have a material adverse effect on Lessee’s ability to observe Operative Agreements or perform its obligations under the Lessee’s Lessee Documents;
(h) no litigation, arbitration or administrative proceeding that could (by itself or together with any other such proceedings or claims) reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents is (to Lessee’s knowledge) presently in progress or pending against Lessee or any of its assets;
(i) the unaudited financial statements of Lessee prepared by Lessee’s management for the fiscal year ended December 31, 2010 have been prepared in accordance with Mexican generally accepted accounting principles and practices (“GAAPP”), and when delivered, the audited financial statements of Lessee for the fiscal year ended December 31, 2010 have been prepared in accordance with International Financial Reporting Standards and fairly present the results of its operations for that period and its financial condition at December 31, 2010 and, in particular, to the extent required by International Financial Reporting Standards accurately disclose or reserve against all the liabilities (actual or contingent) of Lessee, and, to Lessee’s knowledge, after reasonable inquiry, there has been no material adverse change to the financial condition of Lessee since December 31, 2010, except as otherwise previously disclosed to Lessor in writing;[Reserved].
(j) all necessary returns have been timely delivered by Lessee except for (A) the registration in the Owner Trustee's name of the Aircraft pursuant to the applicable taxation authorities for which Transportation Code, (B) the failure filing with and, where appropriate, recordation by the FAA pursuant to file could reasonably be expected to have a material adverse effect on the financial condition Transportation Code of Lessee or an adverse effect on Lessee’s ability to observe or perform any the Indenture (including Indenture Supplement No. 1), and the Lease (including Lease Supplement No. 1), (C) the filing of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time, Lessee is not in default in the payment of any Taxes shown to be payable on any such returns and no claim is being asserted with respect to Taxes that is not disclosed in the audited financial financing statements referred to in clause Sections 3.01(m) and 3.01(n) and (D) the taking of possession by the Indenture Trustee of the original counterpart of the Lease (including Lease Supplement No. 1), no further action, including any filing or recording of any document, is necessary or advisable in order (i) above that if payableto establish the Owner Trustee's title to and interest in the Aircraft and the Lessor's Estate as against the Lessee and any third parties, could reasonably be expected or (ii) to have a material adverse effect perfect the first security interest in and Lien on the financial condition Trust Indenture Estate in favor of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that timeIndenture Trustee;
(k) the financial Owner Trustee has received good and other information furnished by or on behalf marketable title to the Aircraft, free and clear of Lessee to Lessor and its Affiliates in writing does notall Liens, to Lessee’s knowledge, contain any untrue statement of a material fact or omit to state any material fact the omission of which makes the statements therein, in the light of the circumstances under which they were made, misleading, nor omits to disclose any material matter that has or could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry by Lesseeexcept Permitted Liens;
(l) Lessee, under applicable law, is subject to private commercial law and suit, and neither Lessee nor its properties or assets have any right of immunity from suit or execution on assuming the grounds of sovereignty in the United States;
(m) no Default or Event of Default has occurred and is continuing;
(n) Lessee has not granted to, or registered in favor of, any person other than Lessor an “international interest,” “national interest,” “prospective international interest” (as such terms are defined in the Cape Town Convention) or a de-registration and export request authorization with respect to the Airframe or any Engine;
(o) assuming that no part truth of the assets to be used by Lessor to acquire its interest representations contained in the Aircraft or any Lender to provide financing in respect Section 3.12 of the Aircraft constitutes assets of an “employee benefit plan” as defined in Pass-Through Trust Agreements and compliance with Section 3(3) of ERISA, which is subject to Title I of ERISA, a “plan” as defined in Section 4975 10.05 of the Code which is subject to Section 4975 of the Code, an entity whose underlying assets include “plan assets” by reason of any such employee benefit plan’s or plan’s investment in such entity, or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is similar to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the CodeIndenture, the execution and delivery of this Agreement and the other Lessee’s Documents Operative Agreements and the consummation of the transactions contemplated hereby and thereby will be exempt from, or will not involve any prohibited transaction which is subject to, within the prohibitions meaning of either Section 406 406(a) of ERISA or Section 4975 4975(c)(1)(A) through (D) of the Code Code;
(m) all premiums which have become due with respect to the insurance required to be provided by the Lessee on or prior to the Delivery Date under Section 9 of the Lease have been paid by the Lessee;
(n) no Default or Event of Default exists and will no Event of Loss, or event which with the passage of time would constitute an Event of Loss, exists;
(o) the Aircraft is in such condition so as to enable the airworthiness certificate of such Aircraft to be in good standing under the Transportation Code; the Aircraft has been duly certificated by the FAA as to type and airworthiness; there is in effect with respect to the Aircraft a current and valid airworthiness certificate issued by the FAA pursuant to the Transportation Code;
(p) the Lessee shall not involve be in default (after any transaction applicable grace periods) in the performance of any material term or condition of the Purchase Agreement;
(q) neither the Lessee nor any subsidiary of the Lessee is an "investment company" or a company "controlled by an investment company" within the meaning of the Investment Company Act of 1940, as amended;
(r) there are no broker's or underwriter's fees payable on behalf of the Lessee in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 the transactions contemplated in the Operative Agreements, other than those of the CodePlacement Agents and the Lessee Advisor referred to in Article 8 hereof;
(s) the Lessee represents and warrants that it has authorized no one to act on its behalf in connection with the offer or sale of any interest in the Equipment Notes or the Pass-Through Certificates other than the Placement Agents;
(t) the audited consolidated balance sheet of Lessee with respect to Lessee's most recent fiscal year included in Lessee's most recent Annual Report on Form 10-K, as amended, filed by Lessee with the SEC, and the related consolidated statements of operations and cash flows for the period then ended have been prepared in accordance with generally accepted accounting principles in the United States and fairly present in all material respects the financial condition of Lessee and its consolidated subsidiaries as of such date and the results of its operations and cash flows for such period, and since the date of such balance sheet, there has been no material adverse change in such financial condition or operations of Lessee, except for matters disclosed in (a) the financial statements referred to above, (b) any subsequent Quarterly Report on Form 10-Q or Current Report on Form 8-K filed by Lessee with the SEC on or prior to the date hereof, or (c) otherwise disclosed in writing to the Owner Participant;
(u) to the best of Lessee's knowledge, Lessee is not in default under, or in violation of, any Applicable Law, the violation of which would give rise to a Material Adverse Change to Lessee.
(v) neither Lessee nor any person authorized to act on its behalf has directly or indirectly offered any beneficial interest or security relating to the ownership of the Aircraft or the Lease or any interest in the Trust Estate and Trust Agreement, or any of the Equipment Notes or any other interest in or security under the Indenture, for sale to, or solicited any offer to acquire any such interest or security from, or has sold any such interest or security to, any person in violation of the Securities Act or any applicable state securities laws;
(w) Owner Trustee, as lessor under the Lease (and Indenture Trustee, as assignee under the Indenture), is entitled to the benefits of Section 1110 (as currently in effect) with respect to the Aircraft; and
(px) Lessee has duly appointed and registered is not an officer "investment company" or a company controlled by an "investment company" within the meaning of Lessee with the International Registry an administrator to act on behalf Investment Company Act of Lessee 1940, as a transacting user entityamended.
Appears in 1 contract
Lessee’s Representations and Warranties. Lessee acknowledges that each of Lessor hereby makes the following representations and the other Lessor Partieswarranties, has entered into this Agreement and the other Operative Documents in full reliance on which representations and warranties by Lessee in shall survive the execution and delivery of this Clause 2.1; Lease and Lessee now represents and warrants to Lessor that the following statements are on delivery of the date hereof, and on the Delivery Date will be, true and accurateAircraft:
(ai) Lessee is a sociedad anónima promotora de inversiones de capital variable that is corporation duly incorporated, validly organized and existing and in good standing under the laws Laws of the United Mexican States, State of Hawaii and has full the corporate power and authority to conduct carry on its business as presently conducted, conducted and to own or hold under lease its assets, to enter into and perform its obligations under this Lease;
(ii) this Lease has been duly authorized by all necessary corporate action on the Lessee’s Documents part of Lessee and to consummate does not require any approval of stockholders of Lessee (or if such approval is required, such approval has been obtained), and neither the execution and delivery hereof nor the consummation of the transactions contemplated hereby nor compliance by Lessee with any of the terms and provisions hereof will contravene any Law applicable to Lessee or the corporate charter or by-laws of Lessee’s Documents-or result in any breach of, or constitute any default under, or result in the creation of any Lien upon any property of Lessee under, any credit agreement or instrument, or other agreement or-instrument to which Lessee is a party or by which Lessee or its properties or assets are bound or affected;
(biii) Lessee’s organizational documents incorporate provisions that permitLessee has received every consent, approval or authorization of, and all necessary authorizationshas given every notice to, approvalseach Governmental Entity having jurisdiction with respect to the execution, consents, licenses, permits and orders delivery or performance of and registrations with any Government Entity, have been duly and unconditionally obtained and are now in full force and effect this Lease that are is required to authorize, for Lessee to sign execute and deliver, deliver this Lease and to perform its obligations under and the transactions contemplated byhereby and each such consent, the Lessee’s Documentsapproval or authorization is valid and effective and has not been revoked;
(civ) Lessee this Lease has been duly authorized, executed and delivered this Agreement and this Agreement constitutesby Lessee, and the other Lessee’s Documents Lease does, and the Lease Supplement when executed and delivered by Lessee will constitutewill, constitute legal, valid and binding obligations of Lessee, enforceable in accordance with their respective terms terms, except as enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors, rights generally, and, to the extent that certain remedies require or may require enforcement by a court of equity, by such principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) as a court having jurisdiction may impose and by Laws which may affect some of such remedies but which do not make the available remedies inadequate for the substantial realization of the benefits provided herein;
(v) there are no suits or proceedings (other than those heretofore disclosed in writing to each Beneficiary) pending or, to the knowledge of Lessee, threatened in any court or before any regulatory commission, board or other administrative governmental agency against or affecting Lessee which might have a materially adverse effect on the current business or financial condition of Lessee;
(vi) Lessee has filed or caused to be filed all tax returns which are required to be filed by it, and has paid or caused to be paid all Taxes shown to be due or payable on said returns or on any assessment received by Lessee, except to the extent such enforceability may be limited being contested in good faith by insolvencyappropriate proceedings, moratorium, bankruptcy, reorganization or other laws affecting and for the rights payment of creditors generally)which adequate reserves have been provided;
(dvii) neither except for the execution and delivery filing for recordation of the Lessee’s Documents by Lessee nor FAA Bills of Sale, an application for registration of the performance by Lessee Aircraft on AC Form 8050-1 in the name of the Lessor, the Trust Agreement, the affidavit of citizenship of the Lessor and this Lease and the Lease Supplement with the FAA, the filing with the Hawaii Bureau of Conveyances, Hawaii of precautionary UCC financing statements and continuation statements at periodic intervals with respect to the Aircraft and the placing on the Aircraft and on each Engine of the plates containing the legends referred to in Section 6(f) hereof, no further filing or recording of this Lease or of any other document and no further under the Laws of any Governmental Entity in order to (A) fully protect and establish Lessor's title to, interest in and property rights with respect to the transactions contemplated herein and therein will: (i) contravene or constitute a violation or breach of or a default under any existing law or agreement by which Aircraft as against Lessee or any of its assets is bound, any agreement to which it is a third party or Lessee’s organizational documents; (iiB) cause any limitation on Lessee or its assets or the powers of its directors or officers, whether imposed by or contained in Lessee’s organizational documents or any existing law, agreement or otherwise, to be exceeded; or (iii) result in the creation or imposition of, or oblige Lessee to create, any Lien (other than Permitted Liens) over its undertaking or any of its assets, rights or revenues;
(e) except for such filings, registrations and recordings as are specified under this Agreement and the other Lessee’s Documents, it is not necessary or advisable under the laws of the State of Registration or the Habitual Base in order to ensure the validity, effectiveness or enforceability and enforce ability of any Lessee’s Document or to protect the rights of Lessor in the Aircraft or any part thereof that any Lessee’s Document or any other instrument be filed, registered or recorded or that any registration or any other action be taken, and under such laws, the rights of Lessor in the Aircraft will have priority in all respects over the claims of all creditors of Lesseethis Lease;
(fviii) Lessee is not in default in the obligations performance of Lessee under the Lessee’s Documents are, or upon execution thereof by Lessee will be, direct, general and unconditional obligations any of Lessee and rank, or will rank, at least pari passu with all other present and future unsecured and unsubordinated its obligations (including contingent obligationsa) for the payment of Lessee save indebtedness for obligations mandatorily preferred by law and not by reason borrowed money or of any Lieninterest or premium thereon or (b) for the payment of rent under any lease or agreement to lease real, personal or mixed property;
(gix) no event has occurred that constitutes a contravention of, or default under, any agreement by which Lessee or any of its assets is bound or affected, and that could reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s DocumentsMaintenance Program for the Aircraft complies with all FAA requirements;
(h) no litigation, arbitration or administrative proceeding that could (by itself or together with any other such proceedings or claims) reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents is (to Lessee’s knowledge) presently in progress or pending against Lessee or any of its assets;
(ix) the unaudited consolidated financial statements of Lessee prepared by Aloha Airgroup, Inc. (including Lessee’s management ), including the balance sheets and audited statements of income and retained earnings of Lessee, for the preceding two fiscal year ended December 31years and for the period ending September 30, 2010 1995, copies of which have been furnished to Lessor, are prepared in accordance with Mexican generally accepted accounting principles and practices (“GAAPP”)principles, and when delivered, present fairly the audited financial statements of Lessee for the fiscal year ended December 31, 2010 have been prepared in accordance with International Financial Reporting Standards position and fairly present the results of its operations for that period and its financial condition at December 31, 2010 and, in particular, to the extent required by International Financial Reporting Standards accurately disclose or reserve against all the liabilities (actual or contingent) of Lessee, and, and subsequent to Lessee’s knowledge, after reasonable inquirythe conclusion of the last such period, there has been no material adverse change to the financial condition of Lessee since December 31, 2010, except as otherwise previously disclosed to Lessor in writingsuch position or operations;
(jxi) all necessary returns have been timely delivered there are no withholding or other Taxes to be deducted from any payment to be made by Lessee under this Lease (other Taxes to which Lessee's indemnity does not extend pursuant to the applicable taxation authorities for which provisions of Section 10);
(xii) Lessee is a Certified Air Carrier and holds all licenses, certificates, permits and franchises from the failure to file could reasonably be expected to have a material adverse effect on appropriate agencies of the financial condition United States of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account America and/or all other obligations that governmental authorities having jurisdiction which are necessary to authorize the Lessee must observe or perform at that time, to engage in air transport and to carry on its business as presently conducted and to be conducted with the Aircraft;
(xiii) Lessee is not a "citizen of the United States" as defined in default in Section 40102(a)(15) of the payment Federal Aviation Act;
(xiv) Lessor is entitled to the benefits of any Taxes shown to be payable on any such returns and no claim is being asserted Section 1110 of Title 11 of the united States Code with respect to Taxes that is not disclosed in the audited financial statements referred to in clause (i) above that if payable, could reasonably be expected to have a material adverse effect on Aircraft and the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that timeEngines;
(kxv) Lessee's chief executive office (as such term is defined in Article 9 of the financial Uniform Commercial Code) and other information furnished by or on behalf of Lessee the place where it keeps its corporate records concerning the Aircraft, all its interest in, to Lessor and under any Operative Document and its Affiliates contracts relating thereto, are located in writing does notHonolulu, to Lessee’s knowledge, contain Hawaii;
(xvi) Neither Lessee nor any untrue statement Person who was at such time a Commonly Controlled Person has terminated any Plan or withdrawn from any multiemployer plan (as defined in Section 4001(a)(3) of ERISA) in a material fact or omit to state any material fact the omission of manner which makes the statements therein, in the light of the circumstances under which they were made, misleading, nor omits to disclose any material matter that has or could reasonably be expected to have result in any liability under Title IV of ERISA, and no event or condition has occurred or exists as a material adverse effect on the financial condition result of which any such liability could reasonably be expected to be incurred. No Plan maintained or contributed to (or required to be contributed to) by Lessee or any Person who was at such time a Commonly Controlled Person has incurred an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry by Lessee;
"accumulated funding deficiency" (l) Lessee, under applicable law, is subject to private commercial law and suit, and neither Lessee nor its properties or assets have any right of immunity from suit or execution on the grounds of sovereignty in the United States;
(m) no Default or Event of Default has occurred and is continuing;
(n) Lessee has not granted to, or registered in favor of, any person other than Lessor an “international interest,” “national interest,” “prospective international interest” (as such terms are defined in the Cape Town Convention) or a de-registration and export request authorization with respect to the Airframe or any Engine;
(o) assuming that no part of the assets to be used by Lessor to acquire its interest in the Aircraft or any Lender to provide financing in respect of the Aircraft constitutes assets of an “employee benefit plan” as defined in Section 3(3) 302 of ERISA, which ). No Lien imposed under the Code or ERISA on the assets of Lessee or any Commonly Controlled Person exists or is subject reasonably likely to Title I arise on account of ERISA, a “plan” any Plan. No prohibited transaction (as defined in Section 4975 406 of the Code which is subject to ERISA or Section 4975 of the Code, an entity whose underlying assets include “plan assets” by reason of ) has occurred which has subjected or could subject Lessee or any such employee benefit plan’s or plan’s investment in such entity, or a governmental, church or non-U.S. plan which is subject Commonly Controlled Person to any federal, state, local liability under Section 502(i) of ERISA or non-U.S. law that is similar to Section 4975 of the Code. The execution and delivery by Lessee of this Lease and the consummation of the transactions contemplated hereby will not constitute a prohibited transaction provisions within the meaning of Section 406 of ERISA or Section 4975 of the Code, the execution and delivery of this Agreement and the other Lessee’s Documents and the transactions contemplated hereby and thereby will be exempt from, or will not involve any transaction which is subject to, the prohibitions of either Section 406 of ERISA or Section 4975 of the Code and will not involve any transaction in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 of the Code; and
(pxvii) No part of the Rent or other payments made by Lessee has duly appointed and registered an officer of Lessee under the Operative Documents will be made with the International Registry an administrator to act on behalf assets of Lessee any plan (or its related trust) as a transacting user entitydefined in Section 4975(e) of the Code or of any employee benefit plan (or its related trust) as defined in Section 3(3) of ERISA.
Appears in 1 contract
Samples: Aircraft Lease Agreement (Turn Works Acquisition Iii Sub a Inc)
Lessee’s Representations and Warranties. To induce Lessor to enter into this Lease Agreement, and any documents contemplated hereby, Lessee acknowledges that makes the following representations and warranties, each of Lessor which shall survive the execution and the other Lessor Parties, has entered into delivery of this Lease Agreement and the other Operative Documents in full reliance on representations and warranties by Lessee in this Clause 2.1; and Lessee now represents and warrants to Lessor that the following statements are on the date hereof, and on the Delivery Date will be, true and accurateDate:
(ai) Lessee is a sociedad anónima promotora de inversiones de capital variable that corporation duly incorporated under the laws of the Territory of Hawaii and is duly incorporated, validly existing and in good standing under the laws of the United Mexican States, State of Hawaii and has full its chief executive office in Honolulu, Hawaii. Except as set forth on Schedule 4(d)(i) hereto Lessee has all requisite corporate power and authority to conduct carry on its business as presently now conducted, and to own or hold under lease its assetsexecute, to enter into deliver and perform its obligations under this Lease and each Lease Supplement. Lessee is a duly certificated "air carrier" under Section 41102 (former Section 401) and Section 44705 (former Section 604) of the Lessee’s Documents Federal Aviation Act and possesses all necessary licenses or permits required by any Governmental Authority having jurisdiction over Lessee or the Aircraft to permit Lessee to engage in air transportation and to consummate the transactions contemplated by the Lessee’s Documentsperform and comply with its obligations under this Lease, and is duly qualified to do business as a foreign corporation, and is in good standing, in each jurisdiction in which its failure to so qualify would adversely and materially affect it or its ability to carry out its obligations under this Lease;
(bii) Lessee’s organizational documents incorporate provisions that permit, and this Lease has been duly authorized by all necessary authorizations, approvals, consents, licenses, permits and orders of and registrations with any Government Entity, have been duly and unconditionally obtained and are now in full force and effect that are required to authorize, Lessee to sign and deliver, and perform its obligations under and corporate action on the transactions contemplated by, the Lessee’s Documents;
(c) Lessee has duly authorized, executed and delivered this Agreement and this Agreement constitutes, and the other Lessee’s Documents when executed and delivered by Lessee will constitute, legal, valid and binding obligations part of Lessee, enforceable in accordance with their respective terms does not require any approval of stockholders of Lessee (except to the extent or if such enforceability may be limited by insolvencyapproval is required, moratoriumsuch approval has been obtained), bankruptcy, reorganization or other laws affecting the rights of creditors generally);
(d) neither and the execution and delivery hereof, and/or the consummation of the Lessee’s Documents transactions contemplated hereby, and/or compliance by Lessee nor with any of the terms and provisions hereof, do not contravene any provisions of the Articles of Incorporation or By-laws of Lessee, or result in any breach of, or constitute any default under, or result in the creation of any Lien upon any assets or property of Lessee under, any (A) indenture, mortgage, lease, chattel mortgage, deed of trust, conditional sales contract, bank loan, credit agreement or other material agreement or instrument to which Lessee is a party or by which Lessee or its properties may be bound or affected other than the Lien under this Lease and Permitted Liens, or (B) Applicable Law;
(iii) the execution and delivery by Lessee of this Lease, and the performance by Lessee of any of the transactions contemplated herein and therein will: (i) contravene hereby do not require the consent or constitute a violation or breach of or a default under any existing law or agreement by which Lessee or any of its assets is bound, any agreement to which it is a party or Lessee’s organizational documents; (ii) cause any limitation on Lessee or its assets or the powers of its directors or officers, whether imposed by or contained in Lessee’s organizational documents or any existing law, agreement or otherwise, to be exceeded; or (iii) result in the creation or imposition approval of, or oblige Lessee registration with, or the giving or prior notice to createany Person, including any Lien federal, state or foreign governmental authority or entity having appropriate jurisdiction, except (A) any such consent, approval, notice registration, notice or action that has been obtained or as would not affect the validity, enforceability or binding nature of this Lease, and (B) routine reporting requirements of the Securities and Exchange Commission, the FAA, the DOT or other than Permitted Liens) over its undertaking or any of its assets, rights or revenuesGovernmental Authorities after the Delivery Date;
(eiv) this Lease has been duly executed and delivered by Lessee, and this Lease, together with Lease Supplement No. 1 when executed and delivered by Lessee, will constitute legal, valid and binding obligations of Lessee, fully enforceable, except as set forth on Schedule 4(d)(iv), in accordance with their respective terms;
(v) except for such filingsas set forth on Schedule 4(d)(v), registrations and recordings as there are specified under this Agreement and no pending or, to the other knowledge of Lessee’s Documents, threatened investigations, suits or proceedings against it is not necessary or advisable under affecting it or its properties or operations, that, if determined adversely, would materially adversely affect it, the laws consummation of the State of Registration transactions described in, or the Habitual Base in order to ensure performance of its obligations under, this Lease Agreement or affect the validityright, effectiveness title or enforceability of any Lessee’s Document or to protect the rights interest of Lessor in the Aircraft or any part thereof that any Lessee’s Document or any other instrument be filed, registered or recorded or that any registration or any other action be taken, and under such laws, the rights of Lessor in the Aircraft will have priority in all respects over the claims of all creditors of LesseeAircraft;
(fvi) the obligations of except as set forth on Schedule 4(d)(vi), Lessee under the Lessee’s Documents are, or upon execution thereof by Lessee will be, direct, general and unconditional obligations of Lessee and rank, or will rank, at least pari passu with all other present and future unsecured and unsubordinated obligations (including contingent obligations) of Lessee save for obligations mandatorily preferred by law and is not by reason of any Lien;
(g) no event has occurred that constitutes a contravention in violation of, or in default under, any agreement by which Lessee law, ordinance, order, regulation or authorization of any Governmental Authority or any of its assets is bound permit or affectedcertificate issued or granted by any Governmental Authority, and that could reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents;
(h) no litigation, arbitration or administrative proceeding that could (by itself or together with any other such proceedings or claims) reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents is (to Lessee’s knowledge) presently in progress or pending against Lessee or any of its assets;
(i) the unaudited financial statements of Lessee prepared by Lessee’s management for the fiscal year ended December 31, 2010 have been prepared in accordance with Mexican generally accepted accounting principles and practices (“GAAPP”), and when delivered, the audited financial statements of Lessee for the fiscal year ended December 31, 2010 have been prepared in accordance with International Financial Reporting Standards and fairly present the results of its operations for that period and its financial condition at December 31, 2010 and, in particular, to the extent required by International Financial Reporting Standards accurately disclose or reserve against all the liabilities (actual or contingent) of Lessee, and, to Lessee’s knowledge, after reasonable inquiry, there has been no material adverse change to the financial condition of Lessee since December 31, 2010, except as otherwise previously disclosed to Lessor in writing;
(j) all necessary returns have been timely delivered by Lessee to the applicable taxation authorities for which the failure to file could reasonably be expected to have a material adverse effect on the business or condition (financial condition or otherwise) of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time;
(vii) except as set forth in Schedule 4(d)(vii), Lessee is not in default in the payment of any Taxes shown to be payable on any such returns default, and no claim condition exists that with notice or lapse of time or both would constitute a default, under any mortgage, deed of trust, indenture, or other instrument or agreement to which it is being asserted with respect to Taxes a party, or by which it or any of its properties or assets may be bound, that is not disclosed in the audited financial statements referred to in clause (i) above that if payable, could reasonably be expected to would have a material adverse effect on any of the financial condition actions described in, or on its ability to perform its obligations under, this Lease, and it is not in breach of Lessee or an any Applicable Law that would have a material adverse effect on Lessee’s it, or any of the actions described in, or on its ability to observe or perform any of its obligations under the Lessee’s Documentsunder, taking into account all other obligations that Lessee must observe or perform at that timethis Lease;
(kviii) except for the filing for recordation of this Lease, and Lease Supplement No. 1, and the placing on the Aircraft and on each Engine of the plates containing the legends referred to in Section 7(f) hereof, no further filing or recording of this Lease or of any other document (including any financing statement under Article 9 of the Uniform Commercial Code) and no further action is necessary or advisable, under the laws of the United States of America or the State of Hawaii, in order to fully protect and establish Lessor's title to, and interest in, the Aircraft and the Engines as against Lessee or any third parties;
(ix) the financial and other written information furnished by or on behalf of Lessee to Lessor in connection with this Agreement, and its Affiliates in writing the transactions contemplated hereby does not, to Lessee’s knowledge, not contain any untrue statement of a material fact or omit to state any material fact the omission of which makes the statements therein, in the light of the circumstances under which they were made, misleading, nor omits to disclose any material matter that has or could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry by Lesseefact;
(lx) Lessee, under applicable law, is subject to private commercial law and suit, and neither Lessee nor its properties or assets have any right of immunity from suit or execution on the grounds of sovereignty in the United States;
(m) no No Default or Lessee Event of Default has occurred and is continuingcontinuing hereunder;
(nxi) Lessee has assets in excess of $5,000,000.00 according to its most recent financial statement prepared in accordance with generally accepted accounting principles and is not granted to, or registered in favor of, any person other than Lessor an “international interest,” “national interest,” “prospective international interest” (as such terms are defined in the Cape Town Convention) or a de-registration and export request authorization with respect to the Airframe or any Engine;
(o) assuming that no part of the assets to be used by Lessor to acquire its interest in the Aircraft or any Lender to provide financing in respect of the Aircraft constitutes assets of an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, a “plan” as defined in Section 4975 of the Code which is subject to Section 4975 of the Code, an entity whose underlying assets include “plan assets” by reason of any such employee benefit plan’s or plan’s investment in such entity, or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is similar to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, the execution and delivery of this Agreement and the other Lessee’s Documents and the transactions contemplated hereby and thereby will be exempt from, or will not involve any transaction which is subject to, the prohibitions of either Section 406 of ERISA or Section 4975 of the Code and will not involve any transaction in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 of the Code; and
(p) Lessee has duly appointed and registered an officer of Lessee with the International Registry an administrator to act on behalf of Lessee as a transacting user entity.a
Appears in 1 contract
Samples: Aircraft Lease Agreement (Hawaiian Airlines Inc/Hi)
Lessee’s Representations and Warranties. The Lessee acknowledges that each of Lessor and the other Lessor Parties, has entered into this Agreement and the other Operative Documents in full reliance on representations and warranties by Lessee in this Clause 2.1; and Lessee now represents and warrants to Lessor that the following statements are on the date hereofthat, and on as of the Delivery Date will be(unless any such representation and warranty is specifically made as of an earlier date, true in which case the Lessee represents and accurate:warrants as of such earlier date):
(a) the Lessee is a sociedad anónima promotora de inversiones de capital variable that is corporation duly incorporated, organized and validly existing and is in good standing under the laws of Delaware, has its principal place of business and chief executive office (as such terms are used in Article 9 of the United Mexican StatesUniform Commercial Code) in Durham, North Carolina, and is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction where the failure to be so qualified or in good standing would have a materially adverse effect on its business or would impair its ability to perform its obligations under the Lessee Documents;
(b) the Lessee has full corporate power power, authority and authority legal right to conduct its business and operations as presently conducted, currently conducted and to own or hold under lease its assets, properties and to enter into and perform its obligations under the Lessee Documents;
(c) the Lessee is an "air carrier" within the meaning of the Transportation Code and a holder of a certificate under Section 41102(a) of the Transportation Code and a "citizen of the United States" within the meaning of Section 40102(a)(15) of the Transportation Code holding an "air carrier operating certificate" issued under Chapter 447 of the Transportation Code for aircraft capable of carrying ten or more individuals or 6,000 pounds or more of cargo, and each such certificate is in full force and effect;
(d) the Lessee possesses all necessary certificates, franchises, licenses, permits, rights and concessions and consents (collectively "permits") which are necessary to the operation of the routes flown by it and the conduct of its business and operations as currently conducted and each such permit is in full force and effect, except for any such permits the failure to have or maintain which would not have a material adverse effect on the Lessee or its ability to perform its obligations under the Lessee Documents;
(e) the execution, delivery and performance of the Lessee Documents by the Lessee have been duly authorized by all necessary corporate action on the part of the Lessee and do not require any stockholder approval, or approval or consent of any trustee or holder of any indebtedness or obligations of the Lessee’s , and each such Lessee Documents has been duly executed and delivered and constitutes the legal, valid and binding obligations of the Lessee enforceable against it in accordance with the terms thereof except as such enforceability may be limited by bankruptcy, insolvency, or other similar laws or by general equitable principles;
(f) no authorization, consent or approval of or other action by, and no notice to or filing with, any United States federal or state governmental authority or regulatory body is required for the execution, delivery or performance by the Lessee of the Lessee Documents except for such registrations, applications and recordings referred to in the opinion of Xxxxx and Xxxxxxx P.C. delivered pursuant to Sections 3.01(b)(xviii)(E) and the filings referred to in Section 3.01(l)(ii);
(g) neither the execution, delivery or performance by the Lessee of the Lessee Documents nor compliance with the terms and provisions hereof or thereof, conflicts or will conflict with or results or will result in a breach or violation of any of the terms, conditions or provisions of, or will require any consent (other than the PAA Consent and the Engine Manufacturer's Consent) or approval under, any law, governmental rule or regulation or the charter documents, as amended, or bylaws, as amended, of the Lessee or any order, writ, injunction or decree of any court or governmental authority against the Lessee or by which it or any of its properties is bound or any indenture, mortgage or contract or other agreement or instrument to which the Lessee is a party or by which it or any of its properties is bound, or constitutes or will constitute a default thereunder or results or will result in the imposition of any Lien upon any of its properties (other than Permitted Liens), except for any such conflict, breach or default which would not have a material adverse effect on the Lessee or its ability to perform its obligations under the Lessee Documents;
(h) except as disclosed in the Offering Memo, there are no pending or, to the knowledge of the Lessee, threatened actions, suits, investigations or proceedings against or affecting the Lessee or any of its properties before or by any court or administrative agency which, (A) may reasonably be expected to have a materially adverse effect on the Lessee's consolidated financial condition, business, or operations, or (B) would materially adversely affect the ability of the Lessee to consummate the transactions contemplated by the Lessee’s Documents;
(b) Lessee’s organizational documents incorporate provisions that permit, and all necessary authorizations, approvals, consents, licenses, permits and orders of and registrations with any Government Entity, have been duly and unconditionally obtained and are now in full force and effect that are required to authorize, Lessee to sign and deliver, and perform its obligations under and the transactions contemplated by, the Lessee’s Documents;
(c) Lessee has duly authorized, executed and delivered this Agreement and this Agreement constitutes, and the other Lessee’s Documents when executed and delivered by Lessee will constitute, legal, valid and binding obligations of Lessee, enforceable in accordance with their respective terms (except to the extent such enforceability may be limited by insolvency, moratorium, bankruptcy, reorganization or other laws affecting the rights of creditors generally);
(d) neither the execution and delivery of the Lessee’s Documents by Lessee nor the performance by Lessee of any of the transactions contemplated herein and therein will: (i) contravene or constitute a violation or breach of or a default under any existing law or agreement by which Lessee or any of its assets is bound, any agreement to which it is a party or Lessee’s organizational documents; (ii) cause any limitation on Lessee or its assets or the powers of its directors or officers, whether imposed by or contained in Lessee’s organizational documents or any existing law, agreement or otherwise, to be exceeded; or (iii) result in the creation or imposition of, or oblige Lessee to create, any Lien (other than Permitted Liens) over its undertaking or any of its assets, rights or revenues;
(e) except for such filings, registrations and recordings as are specified under this Agreement and the other Lessee’s Documents, it is not necessary or advisable under the laws of the State of Registration or the Habitual Base in order to ensure the validity, effectiveness or enforceability of any Lessee’s Document or to protect the rights of Lessor in the Aircraft or any part thereof that any Lessee’s Document or any other instrument be filed, registered or recorded or that any registration or any other action be taken, and under such laws, the rights of Lessor in the Aircraft will have priority in all respects over the claims of all creditors of Lessee;
(f) the obligations of Lessee under the Lessee’s Documents are, or upon execution thereof by Lessee will be, direct, general and unconditional obligations of Lessee and rank, or will rank, at least pari passu with all other present and future unsecured and unsubordinated obligations (including contingent obligations) of Lessee save for obligations mandatorily preferred by law and not by reason of any Lien;
(g) no event has occurred that constitutes a contravention of, or default under, any agreement by which Lessee or any of its assets is bound or affected, and that could reasonably be expected to have a material adverse effect on Lessee’s ability to observe Operative Agreements or perform its obligations under the Lessee’s Lessee Documents;
(h) no litigation, arbitration or administrative proceeding that could (by itself or together with any other such proceedings or claims) reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents is (to Lessee’s knowledge) presently in progress or pending against Lessee or any of its assets;
(i) the unaudited financial statements of Lessee prepared by Lessee’s management for the fiscal year ended December 31, 2010 have been prepared in accordance with Mexican generally accepted accounting principles and practices (“GAAPP”), and when delivered, the audited financial statements of Lessee for the fiscal year ended December 31, 2010 have been prepared in accordance with International Financial Reporting Standards and fairly present the results of its operations for that period and its financial condition at December 31, 2010 and, in particular, to the extent required by International Financial Reporting Standards accurately disclose or reserve against all the liabilities (actual or contingent) of Lessee, and, to Lessee’s knowledge, after reasonable inquiry, there has been no material adverse change to the financial condition of Lessee since December 31, 2010, except as otherwise previously disclosed to Lessor in writing;[Reserved].
(j) all necessary returns have been timely delivered by Lessee except for (A) the registration in the Owner Trustee's name of the Aircraft pursuant to the applicable taxation authorities for which Transportation Code, (B) the failure filing with and, where appropriate, recordation by the FAA pursuant to file could reasonably be expected to have a material adverse effect on the financial condition Transportation Code of Lessee or an adverse effect on Lessee’s ability to observe or perform any the Indenture (including Indenture Supplement No. 1), and the Lease (including Lease Supplement No. 1), (C) the filing of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time, Lessee is not in default in the payment of any Taxes shown to be payable on any such returns and no claim is being asserted with respect to Taxes that is not disclosed in the audited financial financing statements referred to in clause Sections 3.01(m) and 3.01(n) and (D) the taking of possession by the Indenture Trustee of the original counterpart of the Lease (including Lease Supplement No. 1), no further action, including any filing or recording of any document, is necessary or advisable in order (i) above that if payableto establish the Owner Trustee's title to and interest in the Aircraft and the Lessor's Estate as against the Lessee and any third parties, could reasonably be expected or (ii) to have a material adverse effect perfect the first security interest in and Lien on the financial condition Trust Indenture Estate in favor of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that timeIndenture Trustee;
(k) the financial Owner Trustee has received good and other information furnished by or on behalf marketable title to the Aircraft, free and clear of Lessee to Lessor and its Affiliates in writing does notall Liens, to Lessee’s knowledge, contain any untrue statement of a material fact or omit to state any material fact the omission of which makes the statements therein, in the light of the circumstances under which they were made, misleading, nor omits to disclose any material matter that has or could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry by Lesseeexcept Permitted Liens;
(l) Lessee, under applicable law, is subject to private commercial law and suit, and neither Lessee nor its properties or assets have any right of immunity from suit or execution on assuming the grounds of sovereignty in the United States;
(m) no Default or Event of Default has occurred and is continuing;
(n) Lessee has not granted to, or registered in favor of, any person other than Lessor an “international interest,” “national interest,” “prospective international interest” (as such terms are defined in the Cape Town Convention) or a de-registration and export request authorization with respect to the Airframe or any Engine;
(o) assuming that no part truth of the assets to be used by Lessor to acquire its interest representations contained in the Aircraft or any Lender to provide financing in respect Section 3.12 of the Aircraft constitutes assets of an “employee benefit plan” as defined in Pass-Through Trust Agreements and compliance with Section 3(3) of ERISA, which is subject to Title I of ERISA, a “plan” as defined in Section 4975 10.06 of the Code which is subject to Section 4975 of the Code, an entity whose underlying assets include “plan assets” by reason of any such employee benefit plan’s or plan’s investment in such entity, or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is similar to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the CodeIndenture, the execution and delivery of this Agreement and the other Lessee’s Documents Operative Agreements and the consummation of the transactions contemplated hereby and thereby will be exempt from, or will not involve any prohibited transaction which is subject to, within the prohibitions meaning of either Section 406 406(a) of ERISA or Section 4975 4975(c)(1)(A) through (D) of the Code Code;
(m) all premiums which have become due with respect to the insurance required to be provided by the Lessee on or prior to the Delivery Date under Section 9 of the Lease have been paid by the Lessee;
(n) no Default exists and will no Event of Loss, or event which with the passage of time would constitute an Event of Loss, exists;
(o) the Aircraft is in such condition so as to enable the airworthiness certificate of such Aircraft to be in good standing under the Transportation Code; the Aircraft has been duly certificated by the FAA as to type and airworthiness; there is in effect with respect to the Aircraft a current and valid airworthiness certificate issued by the FAA pursuant to the Transportation Code;
(p) the Lessee shall not involve be in default (after any transaction applicable grace periods) in the performance of any material term or condition of the Purchase Agreement;
(q) neither the Lessee nor any subsidiary of the Lessee is an "investment company" or a company "controlled by an investment company" within the meaning of the Investment Company Act of 1940, as amended;
(r) there are no broker's or underwriter's fees payable on behalf of the Lessee in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 the transactions contemplated in the Operative Agreements, other than those of the CodePlacement Agents and the Lessee Advisor referred to in Article 8 hereof; and
(ps) the Lessee represents and warrants that it has duly appointed and registered an officer of Lessee with the International Registry an administrator authorized no one to act on its behalf in connection with the offer or sale of Lessee as a transacting user entityany interest in the Certificates or the Pass-Through Certificates other than the Placement Agents.
Appears in 1 contract
Lessee’s Representations and Warranties. Lessee acknowledges that each of Lessor and the other Lessor Parties, has entered into this Agreement and the other Operative Documents in full reliance on the representations and warranties by Lessee in this Clause 2.1Clauses 2.1 and 2.3; and Lessee now represents and warrants to Lessor that the following statements are on the date hereof, and on the Delivery Date will be, true and accurate:
(a) Lessee is a sociedad anónima promotora de inversiones de capital variable that duly incorporated under the laws of the State of Incorporation and is duly incorporated, validly existing and in good standing under the laws of the United Mexican Statesstanding, and has full corporate power and authority to conduct its business as presently conducted, to own or hold under lease its assets, to enter into and perform its obligations under the Lessee’s Documents and to consummate the transactions contemplated by the Lessee’s Documentshereby and thereby;
(b) Lessee’s organizational documents incorporate provisions that permit, and all necessary authorizationsauthorisations, approvals, consents, licenses, permits and orders of and registrations with any Government Entity, Entity have been duly and unconditionally (or will on or before the Delivery Date) obtained and are now (or will be on their being obtained) in full force and effect that are required to authorizeauthorise, Lessee to sign and deliver, and perform its obligations under and the transactions contemplated by, by the Lessee’s Documents;
(c) Lessee has duly authorized, executed and delivered this Agreement and this Agreement constitutes, and the other Lessee’s Documents constitute, or when executed and delivered by Lessee entered into will constitute, legal, valid and binding obligations of Lessee, enforceable in accordance with their respective terms (except to the extent such as enforceability may be limited by insolvency, moratorium, bankruptcy, reorganization insolvency or other laws general principles of equity affecting the rights enforcement of creditors generally)creditors’ rights, including the need to obtain Bankruptcy Court approval of the Documents;
(d) neither the execution and delivery of the Lessee’s Documents by Lessee nor the performance by Lessee of any of the transactions contemplated herein by Lessee and therein will: (i) contravene or constitute a violation or breach of or a default under any existing law or agreement by which Lessee or any of its assets is bound, any agreement to which it is a party or Lessee’s organizational organisational documents; (ii) cause any limitation on Lessee or its assets or the powers of its directors or officers, whether imposed by or contained in Lessee’s organizational organisational documents or any existing law, agreement or otherwise, to be exceeded; or (iii) result in the creation or imposition of, or oblige Lessee to create, any Lien (other than a Permitted LiensLien) over its undertaking or any of its assets, rights or revenues;
(e) except for (i) such filings, registrations and recordings as are will have been made on the Delivery Date as specified under this Agreement in Clause 3.1 and (ii) the other Lessee’s Documentsmatters referred to in Clause 3.7 (Post-Closing Matters), it is not necessary or advisable under the laws of the State of Registration Registration, the State of Incorporation or the Habitual Base in order to ensure the validity, effectiveness or enforceability of any Lessee’s Document or to protect the rights of Lessor in the Aircraft or any part thereof that any Lessee’s Document or any other instrument be filed, registered or recorded or that any registration or any other action be taken, taken and under such laws, the rights of Lessor in the Aircraft will have priority in all respects over the claims of all creditors of LesseeLessee (other than in respect of obligations mandatorily preferred by law and statutory priorities in case of insolvency);
(f) the obligations of Lessee under the Lessee’s Documents are, or upon execution thereof by Lessee will be, direct, general and unconditional obligations of Lessee and rank, or will rank, at least pari passu with all other present and future unsecured and unsubordinated obligations (including contingent obligations) of Lessee save for obligations mandatorily preferred by law and not by reason of any Lien;
(g) other than the Chapter 11 Cases and events, conditions or circumstances related to the Chapter 11 Cases and related parallel and ancillary proceedings in Chile, Colombia, and the Cayman Islands, no event has occurred that constitutes a contravention of, or material default under, any agreement by which Lessee or any of its assets is bound or affected, and that could reasonably be expected to have a material adverse effect on Lessee’s the financial condition of Lessee or an adverse effect on its ability to observe or perform its material obligations under the Lessee’s Documents;
(h) other than the Chapter 11 Cases and events, conditions or circumstances related to the Chapter 11 Cases and related parallel and ancillary proceedings in Chile, Colombia, and the Cayman Islands, no litigation, arbitration or administrative proceeding that could if adversely determined (by itself or together with any other such proceedings or claims) reasonably be expected to would have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents or a material adverse effect upon its financial condition is (to Lessee’s knowledge) presently in progress or pending or threatened against Lessee or any of its assets;
(i) the unaudited financial statements of Lessee prepared by Lessee’s management for the fiscal year ended December 31audited, 2010 have been prepared in accordance with Mexican generally accepted accounting principles and practices (“GAAPP”), and when delivered, the audited financial statements consolidated) accounts of Lessee for the fiscal year ended December 31, 2010 2020 (or if unavailable at the time of Delivery, the latest audited quarterly accounts available) have been prepared in accordance with International Financial Reporting Standards generally accepted accounting principles in the State of Incorporation and fairly present give a true and fair view of the results of its operations for that period and its consolidated financial condition at December 31, 2010 such year-end date and, in particular, to the extent required by International Financial Reporting Standards generally accepted accounting principles in the State of Incorporation, accurately disclose or reserve against all the liabilities (actual or contingent) of Lessee, and, other than events, conditions or circumstances related to Lessee’s knowledgethe Chapter 11 Cases and related parallel and ancillary proceedings in Chile, after reasonable inquiryColombia, and the Cayman Islands, there has been no material adverse change to in the consolidated financial condition of Lessee since such year-end date which would have a material adverse effect on the financial condition of Lessee since December 31, 2010, except as otherwise previously disclosed or materially adversely affect the ability of Lessee to Lessor in writingperform its obligations under the Lessee’s Documents;
(j) all necessary returns have been timely delivered by Lessee to the applicable taxation authorities for which within applicable filing periods, Lessee is not in default in the failure payment of any material Taxes, no claim is being asserted with respect to file Taxes that is not disclosed in the audited accounts referred to in clause (i) above that if paid, could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an a material adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time, Lessee is not in default in the payment of any Taxes shown to be payable on any such returns and no claim is being asserted with respect to Taxes that is not disclosed in the audited financial statements referred to in clause (i) above that if payable, could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time;
(k) the financial and other information furnished by or on behalf of Lessee to Lessor and its Affiliates in writing does not, to Lessee’s knowledge, contain any untrue statement of a material fact or omit to state any material fact the omission of which makes the statements therein, in the light of the circumstances under which they were made, misleading, nor omits to disclose any material matter that has or could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry by Lessee;
(l) Lessee, under applicable lawApplicable Law, is subject to private commercial law and suit, and neither Lessee nor its properties or assets have any right of immunity from suit or execution on the grounds of sovereignty in the United StatesState of Incorporation or any other jurisdiction or on any other grounds;
(ml) no Default or Event of Default has occurred and is continuing;
(nm) Lessee has not granted to, or registered in favor of, to any person other than Lessor an “international interest,” , “national interest,” “prospective international interest” (as such terms are defined in the Cape Town Convention) or a de-registration and export request authorization authorisation with respect to the Airframe or any Engine;
(o) assuming that no part of the assets to be used by Lessor to acquire its interest in the Aircraft or any Lender to provide financing in respect of the Aircraft constitutes assets of an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, a “plan” as defined in Section 4975 of the Code which is subject to Section 4975 of the Code, an entity whose underlying assets include “plan assets” by reason of any such employee benefit plan’s or plan’s investment in such entity, or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is similar to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, the execution and delivery of this Agreement and the other Lessee’s Documents and the transactions contemplated hereby and thereby will be exempt from, or will not involve any transaction which is subject to, the prohibitions of either Section 406 of ERISA or Section 4975 of the Code and will not involve any transaction in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 of the Code; and
(pn) Lessee has duly appointed and the registered an officer office of Lessee with is at Xxxxxxx Xxxxxxxxxx Xxxxxx 0000, 00xx Xxxxx, Xxxxxxxx, Xxxxx and Lessee is not situated for purposes of the International Registry an administrator to act on behalf Cape Town Convention in any jurisdiction other than the State of Lessee as a transacting user entityIncorporation.
Appears in 1 contract
Samples: Aircraft Lease Agreement (Latam Airlines Group S.A.)
Lessee’s Representations and Warranties. Lessee acknowledges that each of Lessor and the other Lessor Parties, has entered into this Agreement and the other Operative Documents in full reliance on representations and warranties by Lessee in this Clause 2.1; and Lessee now represents and warrants to Lessor that the following statements are on as of the date hereof, of execution and on the Delivery Date will be, true delivery of this Master Lease and accurateeach Equipment Schedule as follows:
(a) Lessee is a sociedad anónima promotora de inversiones de capital variable that is duly incorporated, validly existing and in good standing limited liability company organized under the laws of the United Mexican StatesState of Delaware, and has having a principal place of business at 3000 Xxxx Xxxxxx Xxxxx, Xxxxxx Xxxxxx, Xxxxxxxxxxxx, 00000, duly organized, validly existing under the laws of the jurisdiction of its organization with full corporate power and authority to conduct its business as presently conducted, to own or hold under lease its assets, to enter into and to pay and perform its obligations under the Lessee’s Documents Equipment Schedule and this Lease as incorporated therein by reference, and is duly qualified or licensed in all other jurisdictions where its failure to consummate so qualify would reasonably be expected to materially and adversely affect the transactions contemplated by conduct of its business or its ability to perform any of its obligations under or the Lessee’s Documents;
enforceability of this Lease; (b) Lessee’s organizational documents incorporate provisions that permiteach Equipment Schedule, this Master Lease and all necessary authorizations, approvals, consents, licenses, permits and orders of and registrations with any Government Entity, other Lease Documents have been duly and unconditionally obtained and are now in full force and effect that are required to authorize, Lessee to sign and deliver, and perform its obligations under and the transactions contemplated by, the Lessee’s Documents;
(c) Lessee has duly authorized, executed and delivered this Agreement and this Agreement constitutesby Lessee, and the other Lessee’s Documents when executed and delivered by Lessee will constituteare valid, legal, valid legal and binding obligations of Lessee, are enforceable against Lessee in accordance with their respective terms (except to the extent such enforceability may be limited by insolvency, moratorium, bankruptcy, reorganization or other laws affecting the rights and do not and will not contravene any provisions of creditors generally);
(d) neither the execution and delivery of the Lessee’s Documents by Lessee nor the performance by Lessee of any of the transactions contemplated herein and therein will: (i) contravene or constitute a violation or breach of or a default under any existing law or agreement by which Lessee or any of its assets is boundLessee’s organizational documents, any agreement to which it is a party or Lessee’s organizational documents; (ii) cause any limitation on Lessee or its assets or the powers of its directors or officers, whether imposed by or contained in Lessee’s organizational documents or any existing law, agreement or otherwise, to be exceeded; or (iii) result in the creation or imposition of, or oblige Lessee to create, any Lien (other than Permitted Liens) over its undertaking which it or any of its assetsproperty is bound, rights or revenues;
any applicable law, regulation, or order of any governmental authority; (ec) except for such filingsLessor’s right, registrations title and recordings as are specified under this Agreement interest in and to the Equipment and the other Rent therefrom will vest in Lessor upon Lessee’s Documents, it is not necessary or advisable under the laws acceptance of the State of Registration Equipment for lease hereunder and will not be affected or impaired by the Habitual Base in order to ensure the validity, effectiveness or enforceability terms of any Lessee’s Document agreement or to protect the rights of Lessor in the Aircraft or any part thereof that any Lessee’s Document or any other instrument be filed, registered or recorded or that any registration or any other action be taken, and under such laws, the rights of Lessor in the Aircraft will have priority in all respects over the claims of all creditors of Lessee;
(f) the obligations of Lessee under the Lessee’s Documents are, or upon execution thereof by Lessee will be, direct, general and unconditional obligations of Lessee and rank, or will rank, at least pari passu with all other present and future unsecured and unsubordinated obligations (including contingent obligations) of Lessee save for obligations mandatorily preferred by law and not by reason of any Lien;
(g) no event has occurred that constitutes a contravention of, or default under, any agreement by which Lessee or any of its assets property is bound bound; (d) no approval of, or affectedfiling with, any governmental authority or other person is required in connection with Lessee’s entering into, or the payment or performance of its obligations under, this Lease and that could the other Lease Documents; (e) there are no suits or proceedings pending or, to the knowledge of Lessee, threatened, before any court or governmental agency against or affecting Lessee which would reasonably be expected to have a material adverse effect on Lessee’s materially and adversely affect the conduct of its business or its ability to observe or perform any of its obligations under or the Lessee’s Documents;
enforceability of this Lease; (h) no litigation, arbitration or administrative proceeding that could (by itself or together with any other such proceedings or claims) reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents is (to Lessee’s knowledge) presently in progress or pending against Lessee or any of its assets;
(if) the unaudited financial statements of Lessee prepared by Lessee’s management for the fiscal year ended December 31, 2010 which have been delivered to Lessor have been prepared in accordance with Mexican generally accepted accounting principles and practices (“GAAPP”)consistently applied, and when delivered, the audited financial statements of Lessee for the fiscal year ended December 31, 2010 have been prepared in accordance with International Financial Reporting Standards and fairly present Lessee’s financial condition and the results of its operations as of the date of and for that the period covered by such statements (subject to customary year-end adjustments), and its financial condition at December 31, 2010 and, in particular, to since the extent required by International Financial Reporting Standards accurately disclose or reserve against all the liabilities (actual or contingent) date of Lessee, and, to Lessee’s knowledge, after reasonable inquiry, such statements there has been no material adverse change to the in such financial condition or operations; (g) Lessee’s full and correct legal name is set forth on the signature page hereof and Lessee will not change its legal name or the location of Lessee since December 31, 2010, except as otherwise previously disclosed its jurisdiction of organization without giving to Lessor at least thirty (30) days prior written notice thereof; (h) the Equipment will always be used for business or commercial, and not personal, purposes; (i) Lessee is not in writing;
(j) all necessary returns have been timely delivered by Lessee to default under any obligation for borrowed money, for the applicable taxation authorities for which deferred purchase price of property or any lease agreement which, either individually or in the failure to file could aggregate, would reasonably be expected to have a material adverse effect on the financial condition of Lessee its business or an adverse effect on Lessee’s its ability to observe or perform any of its obligations under or the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time, Lessee enforceability of this Lease; (j) under the laws of the jurisdiction(s) in which the Equipment is not in default in the payment of any Taxes shown to be payable on any located, the Equipment consists solely of personal property and not fixtures; and (k) Lessee is, and will remain, in full compliance with all laws and regulations applicable to Lessee, except such returns and no claim is being asserted with respect to Taxes that is non-compliance as would not disclosed in the audited financial statements referred to in clause (i) above that if payable, could reasonably be expected to have a material adverse effect on the financial condition of Lessee its business or an adverse effect on Lessee’s its ability to observe or perform any of its obligations under or the enforceability of this Lease, including without limitation, (i) ensuring that no person who owns a controlling interest in or otherwise controls Lessee is or shall be (A) listed on the Specially Designated National 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 regulations or (B) 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 order 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. Lessee’s Documents, taking into account all other obligations that Lessee must observe representations and warranties shall survive termination or perform at that time;
(k) the financial and other information furnished by or on behalf of Lessee to Lessor and its Affiliates in writing does not, to Lessee’s knowledge, contain any untrue statement of a material fact or omit to state any material fact the omission of which makes the statements therein, in the light expiration of the circumstances under which they were made, misleading, nor omits to disclose any material matter that has or could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry by Lessee;
(l) Lessee, under applicable law, is subject to private commercial law and suit, and neither Lessee nor its properties or assets have any right of immunity from suit or execution on the grounds of sovereignty in the United States;
(m) no Default or Event of Default has occurred and is continuing;
(n) Lessee has not granted to, or registered in favor of, any person other than Lessor an “international interest,” “national interest,” “prospective international interest” (as such terms are defined in the Cape Town Convention) or a de-registration and export request authorization with respect to the Airframe or any Engine;
(o) assuming that no part of the assets to be used by Lessor to acquire its interest in the Aircraft or any Lender to provide financing in respect of the Aircraft constitutes assets of an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, a “plan” as defined in Section 4975 of the Code which is subject to Section 4975 of the Code, an entity whose underlying assets include “plan assets” by reason of any such employee benefit plan’s or plan’s investment in such entity, or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is similar to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, the execution and delivery of this Agreement and the other Lessee’s Documents and the transactions contemplated hereby and thereby will be exempt from, or will not involve any transaction which is subject to, the prohibitions of either Section 406 of ERISA or Section 4975 of the Code and will not involve any transaction in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 of the Code; and
(p) Lessee has duly appointed and registered an officer of Lessee with the International Registry an administrator to act on behalf of Lessee as a transacting user entityLease.
Appears in 1 contract
Lessee’s Representations and Warranties. The Lessee acknowledges that each of Lessor and the other Lessor Parties, has entered into this Agreement and the other Operative Documents in full reliance on representations and warranties by Lessee in this Clause 2.1; and Lessee now --------------------------------------- represents and warrants to Lessor that the following statements are on the date hereofthat, and on as of the Delivery Date will be(unless any such representation and warranty is specifically made as of an earlier date, true in which case the Lessee represents and accurate:warrants as of such earlier date):
(a) the Lessee is a sociedad anónima promotora de inversiones de capital variable that is corporation duly incorporated, organized and validly existing and is in good standing under the laws of Delaware, has its principal place of business and chief executive office (as such terms are used in Article 9 of the United Mexican StatesUniform Commercial Code) in Morrisville, North Carolina at the address set forth in Section 12.01(a), and is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction where the failure to be so qualified or in good standing would have a materially adverse effect on its business or would impair its ability to perform its obligations under the Lessee Documents;
(b) the Lessee has full corporate power power, authority and authority legal right to conduct its business and operations as presently conducted, currently conducted and to own or hold under lease its assets, properties and to enter into and perform its obligations under the Lessee Documents;
(c) the Lessee is a Certificated Air Carrier;
(d) the Lessee possesses all necessary certificates, franchises, licenses, permits, rights and concessions and consents (collectively "permits") which are necessary to the operation of the routes flown by it and the conduct of its business and operations as currently conducted and each such permit is in full force and effect, except for any such permits the failure to have or maintain which would not have a material adverse effect on the Lessee or its ability to perform its obligations under the Lessee Documents;
(e) the execution, delivery and performance of the Lessee Documents by the Lessee have been duly authorized by all necessary corporate action on the part of the Lessee and do not require any stockholder approval, or approval or consent of any trustee or holder of any indebtedness or obligations of the Lessee’s , and each such Lessee Documents has been duly executed and delivered and constitutes the legal, valid and binding obligations of the Lessee enforceable against it in accordance with the terms thereof except as such enforceability may be limited by bankruptcy, insolvency, or other similar laws or by general equitable principles;
(f) no authorization, consent or approval of or other action by, and no notice to or filing with, any United States federal or state governmental authority or regulatory body is required for the execution, delivery or performance by the Lessee of the Lessee Documents except for such registrations, applications and recordings referred to in the opinion of Xxxxx and Xxxxxxx P.C. delivered pursuant to Section 3.01(b)(xix)(E) and the filings referred to in Section 3.01(l)(ii);
(g) neither the execution, delivery or performance by the Lessee of the Lessee Documents nor compliance with the terms and provisions hereof or thereof, conflicts or will conflict with or results or will result in a breach or violation of any of the terms, conditions or provisions of, or will require any consent (other than the PAA Consent and the Engine Manufacturer's Consent) or approval under, any law, governmental rule or regulation or the charter documents, as amended, or bylaws, as amended, of the Lessee or any order, writ, injunction or decree of any court or governmental authority against the Lessee or by which it or any of its properties is bound or any indenture, mortgage or contract or other agreement or instrument to which the Lessee is a party or by which it or any of its properties is bound, or constitutes or will constitute a default thereunder or results or will result in the imposition of any Lien upon the Aircraft or any of its properties (other than Permitted Liens), except for any such conflict, breach or default which would not have a material adverse effect on the Lessee or its ability to perform its obligations under the Lessee Documents;
(h) except as disclosed in the Offering Memo, there are no pending or, to the knowledge of the Lessee, threatened actions, suits, investigations or proceedings against or affecting the Lessee or any of its properties before or by any court, governmental agency, arbitration board, tribunal or other administrative agency which, (A) may reasonably be expected to have a materially adverse effect on the Lessee's consolidated financial condition, business, or operations, or (B) would materially adversely affect the ability of the Lessee to consummate the transactions contemplated by the Lessee’s Documents;
(b) Lessee’s organizational documents incorporate provisions that permit, and all necessary authorizations, approvals, consents, licenses, permits and orders of and registrations with any Government Entity, have been duly and unconditionally obtained and are now in full force and effect that are required to authorize, Lessee to sign and deliver, and perform its obligations under and the transactions contemplated by, the Lessee’s Documents;
(c) Lessee has duly authorized, executed and delivered this Agreement and this Agreement constitutes, and the other Lessee’s Documents when executed and delivered by Lessee will constitute, legal, valid and binding obligations of Lessee, enforceable in accordance with their respective terms (except to the extent such enforceability may be limited by insolvency, moratorium, bankruptcy, reorganization or other laws affecting the rights of creditors generally);
(d) neither the execution and delivery of the Lessee’s Documents by Lessee nor the performance by Lessee of any of the transactions contemplated herein and therein will: (i) contravene or constitute a violation or breach of or a default under any existing law or agreement by which Lessee or any of its assets is bound, any agreement to which it is a party or Lessee’s organizational documents; (ii) cause any limitation on Lessee or its assets or the powers of its directors or officers, whether imposed by or contained in Lessee’s organizational documents or any existing law, agreement or otherwise, to be exceeded; or (iii) result in the creation or imposition of, or oblige Lessee to create, any Lien (other than Permitted Liens) over its undertaking or any of its assets, rights or revenues;
(e) except for such filings, registrations and recordings as are specified under this Agreement and the other Lessee’s Documents, it is not necessary or advisable under the laws of the State of Registration or the Habitual Base in order to ensure the validity, effectiveness or enforceability of any Lessee’s Document or to protect the rights of Lessor in the Aircraft or any part thereof that any Lessee’s Document or any other instrument be filed, registered or recorded or that any registration or any other action be taken, and under such laws, the rights of Lessor in the Aircraft will have priority in all respects over the claims of all creditors of Lessee;
(f) the obligations of Lessee under the Lessee’s Documents are, or upon execution thereof by Lessee will be, direct, general and unconditional obligations of Lessee and rank, or will rank, at least pari passu with all other present and future unsecured and unsubordinated obligations (including contingent obligations) of Lessee save for obligations mandatorily preferred by law and not by reason of any Lien;
(g) no event has occurred that constitutes a contravention of, or default under, any agreement by which Lessee or any of its assets is bound or affected, and that could reasonably be expected to have a material adverse effect on Lessee’s ability to observe Operative Agreements or perform its obligations under the Lessee’s Lessee Documents;
(h) no litigation, arbitration or administrative proceeding that could (by itself or together with any other such proceedings or claims) reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents is (to Lessee’s knowledge) presently in progress or pending against Lessee or any of its assets;
(i) the unaudited financial statements of Lessee prepared by Lessee’s management for the fiscal year ended December 31, 2010 have been prepared in accordance with Mexican generally accepted accounting principles and practices (“GAAPP”), and when delivered, the audited financial statements of Lessee for the fiscal year ended December 31, 2010 have been prepared in accordance with International Financial Reporting Standards and fairly present the results of its operations for that period and its financial condition at December 31, 2010 and, in particular, to the extent required by International Financial Reporting Standards accurately disclose or reserve against all the liabilities (actual or contingent) of Lessee, and, to Lessee’s knowledge, after reasonable inquiry, there has been no material adverse change to the financial condition of Lessee since December 31, 2010, except as otherwise previously disclosed to Lessor in writing;[Reserved].
(j) all necessary returns have been timely delivered by Lessee except for (A) the registration in the Owner Trustee's name of the Aircraft pursuant to the applicable taxation authorities for which Transportation Code, (B) the failure filing with and, where appropriate, recordation by the FAA pursuant to file could reasonably be expected to have a material adverse effect on the financial condition Transportation Code of Lessee or an adverse effect on Lessee’s ability to observe or perform any the Indenture (including Indenture Supplement No. 1), and the Lease (including Lease Supplement No. 1), (C) the filing of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time, Lessee is not in default in the payment of any Taxes shown to be payable on any such returns and no claim is being asserted with respect to Taxes that is not disclosed in the audited financial financing statements referred to in clause Sections 3.01(m) and 3.01(n) and (D) the taking of possession by the Indenture Trustee of the original counterpart of the Lease (including Lease Supplement No. 1), no further action, including any filing or recording of any document, is necessary or advisable in order (i) above that if payableto establish the Owner Trustee's title to and interest in the Aircraft and the Lessor's Estate as against the Lessee and any third parties, could reasonably be expected or (ii) to have a material adverse effect perfect the first security interest in and Lien on the financial condition Indenture Estate in favor of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that timeIndenture Trustee;
(k) the financial Owner Trustee has received good and other information furnished by or on behalf marketable title to the Aircraft, free and clear of Lessee to Lessor and its Affiliates in writing does notall Liens, to Lessee’s knowledge, contain any untrue statement of a material fact or omit to state any material fact the omission of which makes the statements therein, in the light of the circumstances under which they were made, misleading, nor omits to disclose any material matter that has or could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry by Lesseeexcept Permitted Liens;
(l) Lessee, under applicable law, is subject to private commercial law assuming the truth and suit, and neither Lessee nor its properties or assets have any right of immunity from suit or execution on the grounds of sovereignty in the United States;
(m) no Default or Event of Default has occurred and is continuing;
(n) Lessee has not granted to, or registered in favor of, any person other than Lessor an “international interest,” “national interest,” “prospective international interest” (as such terms are defined in the Cape Town Convention) or a de-registration and export request authorization with respect to the Airframe or any Engine;
(o) assuming that no part accuracy of the assets representations and warranties contained in Section 3.12 of the Pass-Through Trust Agreements, the representations and warranties contained in Section 5.01(a)(vii) and the representations and warranties deemed to be used by Lessor made pursuant to acquire its interest in the Aircraft or any Lender to provide financing in respect Section 10.05 of the Aircraft constitutes assets of an “employee benefit plan” as defined Indenture and in Section 3(3) of ERISA, which is subject to Title I of ERISA, a “plan” as defined in Section 4975 of the Code which is subject to Section 4975 of the Code, an entity whose underlying assets include “plan assets” by reason of any reliance upon such employee benefit plan’s or plan’s investment in such entity, or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is similar to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Coderepresentations and warranties, the execution and delivery of this Agreement and the other Lessee’s Documents Operative Agreements and the consummation of the transactions contemplated hereby and thereby will be exempt from, or will not involve any prohibited transaction which is subject to, within the prohibitions meaning of either Section 406 406(a) of ERISA or Section 4975 4975(c)(1)(A) through (D) of the Code Code;
(m) all premiums which have become due with respect to the insurance required to be provided by the Lessee on or prior to the Delivery Date under Section 9 of the Lease have been paid by the Lessee;
(n) no Default or Event of Default exists and will no Event of Loss, or event which with the passage of time would constitute an Event of Loss, exists;
(o) the Aircraft is in such condition so as to enable the airworthiness certificate of such Aircraft to be in good standing under the Transportation Code; the Aircraft has been duly certificated by the FAA as to type and airworthiness; there is in effect with respect to the Aircraft a current and valid airworthiness certificate issued by the FAA pursuant to the Transportation Code;
(p) the Lessee is not involve in default (after any transaction applicable grace periods) in the performance of any material term or condition of the Purchase Agreement;
(q) neither the Lessee nor any subsidiary of the Lessee is an "investment company" or a company "controlled by an investment company" within the meaning of the Investment Company Act of 1940, as amended;
(r) there are no broker's or underwriter's fees payable on behalf of the Lessee in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 the transactions contemplated in the Operative Agreements, other than those of the CodePlacement Agents and the Lessee Advisor (as defined in Section 8.01(a)) referred to in Article 8 hereof;
(s) the Lessee represents and warrants that it has authorized no one to act on its behalf in connection with the offer or sale of any interest in the Equipment Notes or the Pass-Through Certificates other than the Placement Agents;
(t) the audited consolidated balance sheet of Lessee with respect to Lessee's most recent fiscal year included in Lessee's most recent Annual Report on Form 10-K, as amended, filed by Lessee with the SEC, and the related consolidated statements of operations and cash flows for the period then ended have been prepared in accordance with generally accepted accounting principles in the United States and fairly present in all material respects the financial condition of Lessee and its consolidated subsidiaries as of such date and the results of its operations and cash flows for such period, and since the date of such balance sheet, there has been no material adverse change in such financial condition or operations of Lessee, except for matters disclosed in (a) the financial statements referred to above, (b) any subsequent Quarterly Report on Form 10-Q or Current Report on Form 8-K filed by Lessee with the SEC on or prior to the date hereof, or (c) otherwise disclosed in writing by Lessee to the Owner Participant prior to the date hereof;
(u) to the best of Lessee's knowledge, Lessee is not in default under, or in violation of, any Applicable Law, the violation of which would give rise to a Material Adverse Change to Lessee;
(v) neither Lessee nor any person authorized to act on its behalf has directly or indirectly offered any beneficial interest or security relating to the ownership of the Aircraft or the Lease or any interest in the Trust Estate and Trust Agreement, or any of the Equipment Notes or any other interest in or security under the Indenture, for sale to, or solicited any offer to acquire any such interest or security from, or has sold any such interest or security to, any person in violation of the Securities Act or any applicable state securities laws; and
(pw) Lessee has duly appointed Owner Trustee, as lessor under the Lease (and registered an officer Indenture Trustee, as assignee under the Indenture), is entitled to the benefits of Lessee Section 1110 (as currently in effect) with respect to the International Registry an administrator to act on behalf of Lessee as a transacting user entityAircraft.
Appears in 1 contract
Lessee’s Representations and Warranties. Lessee acknowledges that each of Lessor hereby makes the following representations and the other Lessor Partieswarranties, has entered into this Agreement and the other Operative Documents in full reliance on which representations and warranties by Lessee in shall survive the execution and delivery of this Clause 2.1; Lease and Lessee now represents and warrants to Lessor that the following statements are on delivery of the date hereof, and on the Delivery Date will be, true and accurateAircraft:
(ai) Lessee is a sociedad anónima promotora de inversiones de capital variable that is corporation duly incorporatedorganized, validly and existing and in good standing under the laws Laws of the United Mexican States, State of Hawaii and has full the corporate power and authority to conduct carry on its business as presently conducted, conducted and to own or hold under lease its assets, to enter into and perform its obligations under this Lease;
(ii) this Lease has been duly authorized by all necessary corporate action on the part of Lessee’s Documents , does not require any approval of stockholders of Lessee (or if such approval is required, such approval has been obtained), and to consummate neither the execution and delivery hereof nor the consummation of the transactions contemplated hereby nor compliance by Lessee with any of the Lessee’s Documentsterms and provisions hereof will contravene any Law PHC 90-047 WKH applicable to Lessee or result in any breach of, or constitute any default under, or result in the creation of any lien, charge or encumbrance upon any property of Lessee under, any credit agreement or instrument, corporate charter or by-law or other agreement or instrument to which Lessee is a party or by which Lessee or its properties or assets are bound or affected;
(biii) Lessee’s organizational documents incorporate provisions that permitLessee has received every consent, approval or authorization of, and has given every notice to, each Governmental Entity having jurisdiction with respect to the execution, delivery or performance of this Lease (including all necessary authorizations, approvals, consents, licenses, permits monetary and orders of and registrations with any Government Entity, have been duly and unconditionally obtained and are now in full force and effect other obligations hereunder) that are is required to authorize, for Lessee to sign execute and deliverdeliver this Lease, and to perform its obligations under and the transactions contemplated by, the Lessee’s Documentshereby;
(civ) Lessee this Lease has been duly authorized, executed and delivered this Agreement and this Agreement constitutesby Lessee, and the other Lessee’s Documents Lease, and the Lease Supplement, when executed and delivered by Lessee will constituteLessee, constitute legal, valid and binding obligations of Lessee, enforceable in accordance with their respective terms (terms, except to the extent such enforceability as enforcement thereof may be limited by applicable bankruptcy, insolvency, moratoriumreorganization, bankruptcy, reorganization moratorium or other similar laws affecting the enforcement of creditors' rights generally, and, by general principles or equity (regardless of creditors generally)whether such enforceability is considered in a proceeding in equity or at law) as a court having jurisdiction may impose and by laws which may affect some of such remedies but which do not make the available remedies inadequate for the substantial realization of the benefits provided herein;
(dv) neither there are no suits or proceedings pending or, to the execution knowledge of Lessee, threatened in any court or before any regulatory commission, board or other administrative governmental agency against or affecting Lessee which will have a materially adverse effect on the current business or financial condition of Lessee;
(vi) Lessee has filed or caused to be filed all material tax returns which are required to be filed by it, and delivery has paid or caused to be paid all taxes shown to be due or payable on said returns or on any assessment received by Lessee, unless protected by appropriate proceedings;
(vii) except for the filing for recordation of this Lease and the Lease Supplement with the FAA, the recording at the FAA of the Lessee’s Documents by Lessee nor FAA Xxxx of Sale, the performance by Lessee issuance of the FAA Certificate of Registration and the filings of the UCC-1 forms to be made in Hawaii and California and the placing on the Aircraft and on each Engine of the plates containing the legends referred to in Section 6(f) hereof, no further filing or recording of this Lease or of any other document and no further action, is necessary or desirable XXX 00-000 XXX under the Laws of any Governmental Entity in order to (A) fully protect and establish Lessor's title to, interest in, and property rights with respect to, the transactions contemplated herein and therein will: (i) contravene or constitute a violation or breach of or a default under any existing law or agreement by which Aircraft as against Lessee or any of its assets is bound, any agreement to which it is a third party or Lessee’s organizational documents; (ii) cause any limitation on Lessee or its assets or the powers of its directors or officers, whether imposed by or contained in Lessee’s organizational documents or any existing law, agreement or otherwise, to be exceeded; or (iii) result in the creation or imposition of, or oblige Lessee to create, any Lien (other than Permitted Liens) over its undertaking or any of its assets, rights or revenues;
(e) except for such filings, registrations and recordings as are specified under this Agreement and the other Lessee’s Documents, it is not necessary or advisable under the laws of the State of Registration or the Habitual Base in order to ensure that the validity, effectiveness or enforceability of any Lessee’s Document or to protect the property rights of Lessor in the Aircraft or any part thereof that any Lessee’s Document or any other instrument be filed, registered or recorded or that any registration or any other action be taken, and under such laws, the rights of Lessor in the Aircraft therein will have priority in all respects over the claims of all creditors of Lessee, or (B) ensure the validity, effectiveness and enforceability of this Lease;
(fviii) Lessee is not in default in the obligations performance of Lessee under the Lessee’s Documents are, or upon execution thereof by Lessee will be, direct, general and unconditional obligations any of Lessee and rank, or will rank, at least pari passu with all other present and future unsecured and unsubordinated its obligations (including contingent obligationsa) for the payment of Lessee save indebtedness for obligations mandatorily preferred by law and not by reason borrowed money in a principal amount in excess of Five Hundred Thousand Dollars ($500,000) or of any Lieninterest or premium thereon or (b) for the payment of rent under any lease or agreement to lease real, personal or mixed property where the aggregate rentals over the term thereof is more than Three Hundred Fifty Thousand Dollars ($350,000);
(gix) no event has occurred that constitutes a contravention of, or default under, any agreement by which Lessee or any of its assets is bound or affected, and that could reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s DocumentsMaintenance Program will comply with all FAA requirements;
(h) no litigation, arbitration or administrative proceeding that could (by itself or together with any other such proceedings or claims) reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents is (to Lessee’s knowledge) presently in progress or pending against Lessee or any of its assets;
(ix) the unaudited consolidated financial statements of Lessee prepared by Lessee’s management and the Guarantor, including the balance sheets and audited statements of income and retained earnings of Lessee and the Guarantor, for the preceding two fiscal year ended December 31years, 2010 copies of which have been furnished to Lessor, are prepared in accordance with Mexican generally accepted accounting principles and practices (“GAAPP”)principles, and when delivered, present fairly the audited financial statements position and operations of Lessee for and the fiscal year ended December 31Guarantor, 2010 have been prepared in accordance with International Financial Reporting Standards and fairly present the results of its operations for that period and its financial condition at December 31, 2010 and, in particular, subsequent to the extent required by International Financial Reporting Standards accurately disclose or reserve against all conclusion of the liabilities (actual or contingent) of Lessee, and, to Lessee’s knowledge, after reasonable inquirylast such period, there has been no material adverse change to the financial condition of Lessee since December 31, 2010, except as otherwise previously disclosed to Lessor in writingsuch position or operations;
(jxi) all necessary returns have been timely delivered there is no withholding or other tax to be deducted from any payment to be made by Lessee to the applicable taxation authorities for which the failure to file could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time, Lessee is not in default in the payment of any Taxes shown to be payable on any such returns and no claim is being asserted with respect to Taxes that is not disclosed in the audited financial statements referred to in clause (i) above that if payable, could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that timethis Lease;
(kxii) the financial and other information furnished by or on behalf choice of Lessee to Lessor and its Affiliates in writing does not, to Lessee’s knowledge, contain any untrue statement of a material fact or omit to state any material fact the omission of which makes the statements therein, in the light of the circumstances under which they were made, misleading, nor omits to disclose any material matter that has or could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry by Lessee;
(l) Lessee, under applicable law, is subject to private commercial California law and suit, and neither Lessee nor its properties or assets have any right United States federal law to govern this Lease is a valid choice of immunity from suit or execution on the grounds of sovereignty in the United States;
(m) no Default or Event of Default has occurred and is continuing;
(n) Lessee has not granted to, or registered in favor of, any person other than Lessor an “international interest,” “national interest,” “prospective international interest” (as such terms are defined in the Cape Town Convention) or a de-registration and export request authorization with respect to the Airframe or any Engine;
(o) assuming that no part of the assets to be used by Lessor to acquire its interest in the Aircraft or any Lender to provide financing in respect of the Aircraft constitutes assets of an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, a “plan” as defined in Section 4975 of the Code which is subject to Section 4975 of the Code, an entity whose underlying assets include “plan assets” by reason of any such employee benefit plan’s or plan’s investment in such entity, or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is similar to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, the execution and delivery of this Agreement and the other Lessee’s Documents and the transactions contemplated hereby and thereby will be exempt from, or will not involve any transaction which is subject to, the prohibitions of either Section 406 of ERISA or Section 4975 of the Code and will not involve any transaction in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 of the Codelaw; and
(pxiii) Lessee has duly appointed and registered an officer Lessor shall be entitled to the benefits of Lessee a lessor under Title 11 U.S.C. Section 1110 as in effect on the date hereof, and, as a consequence, any right of Lessor to take possession of such Aircraft in compliance with the International Registry an administrator to act provisions of this Lease Agreement shall not be affected by the provisions of Section 362 or 363 of such Title as in effect on behalf of Lessee as a transacting user entity.the date hereof. PHC 90-047 WKH
Appears in 1 contract
Samples: Aircraft Lease Agreement (Turn Works Acquisition Iii Sub a Inc)
Lessee’s Representations and Warranties. Lessee acknowledges that hereby represents, warrants, and covenants, each of which shall survive the execution and delivery of this Lease, and the delivery by Lessor and the other Lessor Parties, has entered into this Agreement and the other Operative Documents in full reliance on representations and warranties acceptance by Lessee in this Clause 2.1; and Lessee now represents and warrants to Lessor that of the following statements are on the date hereof, and on the Delivery Date will be, true and accurateAircraft:
(ai) Lessee is a sociedad anónima promotora de inversiones de capital variable that is corporation duly incorporated, incorporated and validly existing and in good standing under the laws of the United Mexican States, State of Delaware and has the full corporate power and authority to conduct carry on its business as presently conducted, conducted and to own or hold under lease its assets, to enter into and perform its obligations under this Lease;
(ii) this Lease, and each of the Operative Agreements to which Lessee is a party, has been duly authorized by all necessary action on the part of Lessee’s Documents , does not require any approval of stockholders of Lessee, and to consummate neither the execution and delivery hereof nor the consummation of the transactions contemplated hereby nor compliance by Lessee with any of the terms and provisions hereof will, to the knowledge of Lessee after having made due inquiry, contravene any Applicable Law or result in any breach of, or constitute any default under, or result in the creation of any Lien upon any property of Lessee under Lessee’s Documents's articles of incorporation or any credit agreement or instrument or other agreement or instrument to which Lessee is a party or by which Lessee or its properties or assets are bound or affected;
(biii) Lessee’s organizational documents incorporate provisions that permitno consent, approval or authorization of, or notice to, any Governmental Entity having jurisdiction with respect to the execution, delivery or performance by Lessee of this Lease, and each of the Operative Agreements to which Lessee is a party (including all necessary authorizations, approvals, consents, licenses, permits monetary and orders of and registrations with any Government Entity, have been duly and unconditionally obtained and are now in full force and effect that are other obligations hereunder or thereunder) is required to authorize, for Lessee to sign execute and deliverdeliver this Lease, and to perform its obligations under and the transactions contemplated by, the Lessee’s Documentshereby;
(civ) Lessee this Lease has been duly authorized, executed and delivered this Agreement and this Agreement constitutesby Lessee, and the Lease, the Lease Supplement and the other Lessee’s Documents Operative Agreements, when executed and delivered by Lessee will constituteLessee, constitute legal, valid and binding obligations of Lessee, enforceable in accordance with their respective terms (except to the extent such enforceability as may be limited by bankruptcy, insolvency, moratoriumreorganization, bankruptcy, reorganization moratorium or other similar laws affecting the enforcement of creditors' rights generally, and, to the extent that certain remedies require or may require enforcement by a court of creditors generally)equity, by such principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) as a court having jurisdiction may impose and by laws which may affect some of such remedies;
(dv) neither the execution and delivery of the Lessee’s Documents by Lessee nor the performance by Lessee of any of the transactions contemplated herein and therein will: (i) contravene there are no suits or constitute a violation or breach of or a default under any existing law or agreement by which Lessee or any of its assets is bound, any agreement to which it is a party or Lessee’s organizational documents; (ii) cause any limitation on Lessee or its assets or the powers of its directors or officers, whether imposed by or contained in Lessee’s organizational documents or any existing law, agreement or otherwiseproceedings pending or, to be exceeded; the knowledge of Lessee, threatened in any court or (iii) result in the creation before any Governmental Entity against or imposition of, or oblige affecting Lessee to create, any Lien (other than Permitted Liens) over its undertaking or any of its assets, rights or revenues;
(e) except for such filings, registrations and recordings as are specified under this Agreement and the other Lessee’s Documents, it is not necessary or advisable under the laws of the State of Registration or the Habitual Base in order to ensure the validity, effectiveness or enforceability of any Lessee’s Document or to protect the rights of Lessor in the Aircraft or any part thereof that any Lessee’s Document or any other instrument be filed, registered or recorded or that any registration or any other action be taken, and under such laws, the rights of Lessor in the Aircraft which will have priority in all respects over a materially adverse effect on the claims of all creditors current business or financial condition of Lessee;
(fvi) except for the obligations registration on the Aircraft registry maintained by the FAA and the placing on the Aircraft and on each Engine of Lessee the plates containing the legends referred to in Section 6(f) hereof, no further filing or recording of this Lease, any Security Agreement or of any other Operative Agreement, and no further action is necessary under the Lessee’s Documents areApplicable Law, or upon execution thereof required by Lessee will beany Governmental Entity, direct, general in order to fully protect and unconditional obligations of Lessee and rank, or will rank, at least pari passu with all other present and future unsecured and unsubordinated obligations (including contingent obligations) of Lessee save for obligations mandatorily preferred by law and not by reason of any Lien;
(g) no event has occurred that constitutes a contravention of, or default under, any agreement by which Lessee or any of its assets is bound or affectedestablish Lessor's title to the Aircraft, and that could reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under Lessor's Lenders' security interest in the Lessee’s Documents;
(h) no litigationAircraft and this Lease, arbitration or administrative proceeding that could (by itself or together with any other such proceedings or claims) reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents is (to Lessee’s knowledge) presently in progress or pending as against Lessee or any of its assetsthird party;
(ivii) the unaudited financial statements of Lessee prepared by Lessee’s management for the fiscal year ended December 31, 2010 have been prepared in accordance with Mexican generally accepted accounting principles and practices (“GAAPP”), and when delivered, the audited financial statements of Lessee for the fiscal year ended December 31, 2010 have been prepared in accordance with International Financial Reporting Standards and fairly present the results of its operations for that period and its financial condition at December 31, 2010 and, in particular, to the extent required by International Financial Reporting Standards accurately disclose or reserve against all the liabilities (actual or contingent) of Lessee, and, to Lessee’s knowledge, after reasonable inquiry, there has been no material adverse change to the financial condition of Lessee since December 31, 2010, except as otherwise previously disclosed to Lessor in writing;
(j) all necessary returns have been timely delivered by Lessee to the applicable taxation authorities for which the failure to file could reasonably be expected will not claim to have a material adverse effect on the financial condition of Lessee any legal or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time, Lessee is not in default in the payment of any Taxes shown to be payable on any such returns and no claim is being asserted with respect to Taxes that is not disclosed in the audited financial statements referred to in clause (i) above that if payable, could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time;
(k) the financial and other information furnished by or on behalf of Lessee to Lessor and its Affiliates in writing does not, to Lessee’s knowledge, contain any untrue statement of a material fact or omit to state any material fact the omission of which makes the statements therein, in the light of the circumstances under which they were made, misleading, nor omits to disclose any material matter that has or could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry by Lessee;
(l) Lessee, under applicable law, is subject to private commercial law and suit, and neither Lessee nor its properties or assets have any right of immunity from suit or execution on the grounds of sovereignty in the United States;
(m) no Default or Event of Default has occurred and is continuing;
(n) Lessee has not granted to, or registered in favor of, any person other than Lessor an “international interest,” “national interest,” “prospective international interest” (as such terms are defined in the Cape Town Convention) or a de-registration and export request authorization with respect to the Airframe or any Engine;
(o) assuming that no part of the assets to be used by Lessor to acquire its beneficial interest in the Aircraft or make any Lender to provide financing demands against Lessor other than in respect of the Aircraft constitutes assets Lessee's interest conferred by this Lease;
(viii) Lessee has not received notice of default or exercise of remedies with respect to any of its obligations: (a) for the payment of indebtedness for borrowed money, of any currency, equal to an “employee benefit plan” amount in excess of the equivalent of Five Hundred Thousand Dollars (US $500,000.00) or of any interest or premium thereon; or (b) for the payment of rent under any lease or agreement to lease real, personal or mixed property where the aggregate rentals over the term thereof is more than an amount equal to or greater than the equivalent of Five Hundred Thousand Dollars (US $500,000.00);
(ix) the Maintenance Program will comply with all FAA requirements, as defined in Section 3(3applicable (including but not limited to those under Part 121 of the FAR's);
(x) of ERISA, which is subject to Title I compliance with Section 8(h) hereof, Lessee will maintain in full force and effect during the Term of ERISAthis Lease, or cause any Sublessee to maintain to the satisfaction of Lessor, a “plan” current operating certificate, air transport license and a current certificate of airworthiness for the type of operations conducted by Lessee or Sublessee, as defined the case may be, in Section 4975 accordance with Applicable Law and the requirements of the Code which is subject to Section 4975 FAA, and each of the Code, an entity whose underlying assets include “plan assets” by reason of any such employee benefit plan’s or plan’s investment in such entity, or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is similar to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, the execution and delivery of this Agreement and the other Lessee’s Documents and the transactions contemplated hereby and thereby will be exempt from, or will not involve any transaction which is subject to, by the prohibitions of either Section 406 of ERISA or Section 4975 of the Code and will not involve any transaction in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 of the Codeother Operative Agreements; and
(pxi) Lessee is a duly authorized and certificated air carrier in good standing under Applicable Law, has duly appointed satisfied all of the requirements of and registered an officer of Lessee is in good standing with the International Registry an administrator FAA under Part 121, and has complied with and satisfied all requirements of the FAA so as to act on behalf of Lessee as a transacting user entityenable it to fulfill its obligations hereunder, and to otherwise lawfully operate, possess, use and maintain the Aircraft in accordance herewith.
Appears in 1 contract
Samples: Aircraft Lease Agreement (Vanguard Airlines Inc \De\)
Lessee’s Representations and Warranties. 15.01 The Lessee acknowledges that each of Lessor and the other Lessor Parties, has entered into this Agreement and the other Operative Documents in full reliance on representations and warranties by Lessee in this Clause 2.1; and Lessee now represents and warrants to and agrees with Lessor that the following statements are on the date hereof, and on the Delivery Date will be, true and accuratethat:
(a1) the Lessee is and (except as expressly permitted hereinbelow) shall continue to be a sociedad anónima promotora de inversiones de capital variable that is corporation duly incorporated, organized and validly existing and in good standing under the laws of the United Mexican Statesstate of its incorporation, is duly qualified and in good standing in all other jurisdictions in which Equipment may be located, and has full corporate power and authority to conduct its business as presently conducted, to own or hold under lease its assets, to enter into and perform its obligations under is not exempt from United States income taxation; (2) the Lessee’s Documents and to consummate the transactions contemplated by the Lessee’s Documents;
(b) Lessee’s organizational documents incorporate provisions that permit's execution, delivery, and all necessary authorizationsperformance of this Lease, approvals, consents, licenses, permits and orders of and registrations with any Government Entity, have been duly and unconditionally obtained and are now in full force and effect that are required to authorize, Lessee to sign and deliver, and perform its obligations under and the transactions contemplated by, the Lessee’s Documents;
(c) Lessee has duly authorized, executed and delivered this Agreement and this Agreement constituteseach Schedule, and the other Lessee’s Documents when documents herein contemplated have been (or if the same should be not yet executed and delivered delivered, at the time of such execution and delivery, will have been) duly authorized by all necessary corporation action, will not result in any breach, default or violation of or under the Lessee's certificate of incorporation or bylaws or any agreement, order, or law by which the Lessee is or may be bound or its property is or may be affected; (3) this Lease as well as each Schedule and the other documents contemplated herein constitute (or if the same should be not yet executed and delivered, at the time of such execution and delivery, will constitute) the legal valid, legal, valid and binding obligations of Lessee, the Lessee enforceable against the Lessee in accordance with their respective terms (except to the extent such enforceability may be limited by insolvency, moratorium, bankruptcy, reorganization or other laws affecting the rights of creditors generally);
(d) neither the execution and delivery of the Lessee’s Documents by Lessee nor the performance by Lessee of any of the transactions contemplated herein and therein will: (i) contravene or constitute a violation or breach of or a default under any existing law or agreement by which Lessee or any of its assets is bound, any agreement to which it is a party or Lessee’s organizational documentsterms; (ii4) cause any limitation on Lessee or its assets or the powers of its directors or officers, whether imposed by or contained in Lessee’s organizational documents or any existing law, agreement or otherwise, to be exceeded; or (iii) result in the creation or imposition of, or oblige Lessee to create, any Lien (other than Permitted Liens) over its undertaking or any of its assets, rights or revenues;
(e) except for such filings, registrations and recordings as are specified under this Agreement and the other Lessee’s Documents, it is not necessary or advisable under the laws of the State of Registration or the Habitual Base in order to ensure the validity, effectiveness or enforceability of any Lessee’s Document or to protect the rights of Lessor in the Aircraft or any part thereof that any Lessee’s Document or any other instrument be filed, registered or recorded or that any registration or any other action be taken, and under such laws, the rights of Lessor in the Aircraft will have priority in all respects over the claims of all creditors of Lessee;
(f) the obligations of Lessee under the Lessee’s Documents are, or upon execution thereof by Lessee will be, direct, general and unconditional obligations of Lessee and rank, or will rank, at least pari passu with all other present and future unsecured and unsubordinated obligations (including contingent obligations) of Lessee save for obligations mandatorily preferred by law and not by reason of any Lien;
(g) no event has occurred that constitutes a contravention of, or default under, any agreement by which Lessee or any of its assets is bound or affected, and that could reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents;
(h) no litigation, arbitration or administrative proceeding that could (by itself or together with any other such proceedings or claims) reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents is (to Lessee’s knowledge) presently in progress or pending against Lessee or any of its assets;
(i) the unaudited financial statements of Lessee prepared and other information heretofore furnished by Lessee’s management for the fiscal year ended December 31, 2010 have been prepared in accordance with Mexican generally accepted accounting principles and practices (“GAAPP”), and when delivered, the audited financial statements of Lessee for the fiscal year ended December 31, 2010 have been prepared in accordance with International Financial Reporting Standards and fairly present the results of its operations for that period and its financial condition at December 31, 2010 and, in particular, to the extent required by International Financial Reporting Standards accurately disclose or reserve against all the liabilities (actual or contingent) of Lessee, and, to Lessee’s knowledge, after reasonable inquiry, there has been no material adverse change to the financial condition of Lessee since December 31, 2010, except as otherwise previously disclosed to Lessor in writing;
(j) all necessary returns have been timely delivered by Lessee to the applicable taxation authorities for which Lessor were when so furnished (or if the failure to file could reasonably same shall be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documentsfurnished hereafter, taking into account all other obligations that Lessee must observe or perform at that time, Lessee is not in default in the payment of any Taxes shown to be payable on any such returns when so furnished shall be) true and no claim is being asserted with respect to Taxes that is not disclosed in the audited financial statements referred to in clause (i) above that if payable, could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time;
(k) the financial and other information furnished by or on behalf of Lessee to Lessor and its Affiliates in writing does not, to Lessee’s knowledge, contain any untrue statement of a material fact or omit to state any material fact the omission of which makes the statements therein, in the light of the circumstances under which they were made, misleading, nor omits to disclose any material matter that has or could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry by Lessee;
(l) Lessee, under applicable law, is subject to private commercial law and suit, and neither Lessee nor its properties or assets have any right of immunity from suit or execution on the grounds of sovereignty in the United States;
(m) no Default or Event of Default has occurred and is continuing;
(n) Lessee has not granted to, or registered in favor of, any person other than Lessor an “international interest,” “national interest,” “prospective international interest” (as such terms are defined in the Cape Town Convention) or a de-registration and export request authorization with respect to the Airframe or any Engine;
(o) assuming that no part of the assets to be used by Lessor to acquire its interest in the Aircraft or any Lender to provide financing in respect of the Aircraft constitutes assets of an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, a “plan” as defined in Section 4975 of the Code which is subject to Section 4975 of the Code, an entity whose underlying assets include “plan assets” by reason of any such employee benefit plan’s or plan’s investment in such entity, or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is similar to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, the execution and delivery of this Agreement and the other Lessee’s Documents and the transactions contemplated hereby and thereby will be exempt from, or will not involve any transaction which is subject to, the prohibitions of either Section 406 of ERISA or Section 4975 of the Code and will not involve any transaction in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 of the Codecomplete; and
(p5) Lessee has duly appointed and registered an officer upon any consolidation or merger of the Lessee with or into any other corporation(s) or upon any sale or conveyance of substantially all of the International Registry an administrator property of the Lessee to act on behalf any other person or entity, the Lessee will cause the due and punctual performance and observance of all covenants and obligations of the Lessee as a transacting user entityhereunder to be assumed by the surviving corporation or by the person or entity which shall have acquired such property. The foregoing representations, warranties, and agreements shall remain in effect throughout the term of this Lease.
Appears in 1 contract
Lessee’s Representations and Warranties. 15.01 The Lessee acknowledges that each of Lessor and the other Lessor Parties, has entered into this Agreement and the other Operative Documents in full reliance on representations and warranties by Lessee in this Clause 2.1; and Lessee now represents and warrants to and agrees with Lessor that the following statements are on the date hereof, and on the Delivery Date will be, true and accuratethat:
(a1) the Lessee is and (except as expressly permitted hereinbelow) shall continue to be a sociedad anónima promotora de inversiones de capital variable that is corporation duly incorporated, organized and validly existing and in good standing under the laws of the state of its incorporation, is duly qualified and in good standing in all other jurisdictions in which Equipment may be located and is not exempt from United Mexican StatesStates income taxation; (2) the Lessee's execution, delivery and has full corporate power performance of this Lease, each Schedule and authority to conduct its business as presently conductedthe other documents herein contemplated have been (or if the same should be not yet executed and delivered, to own at the time of such execution and delivery, will have been) duly authorized by all necessary corporation action, will not result in any breach, default or hold under lease its assets, to enter into and perform its obligations violation of or under the Lessee’s Documents and to consummate 's certificate of incorporation or bylaws or any agreement, order or law by which the transactions contemplated by the Lessee’s Documents;
Lessee is or may be bound or its property is or may be affected; (b3) Lessee’s organizational documents incorporate provisions that permit, and all necessary authorizations, approvals, consents, licenses, permits and orders of and registrations with any Government Entity, have been duly and unconditionally obtained and are now in full force and effect that are required to authorize, Lessee to sign and deliver, and perform its obligations under and the transactions contemplated by, the Lessee’s Documents;
(c) Lessee has duly authorized, executed and delivered this Agreement and this Agreement constitutes, Lease as well as each Schedule and the other Lessee’s Documents when documents executed and delivered by the Lessee in connection herewith constitute (or if the same should be not yet executed and delivered, at the time of such execution and delivery, will constitute, ) the legal, valid and binding obligations of Lessee, the Lessee enforceable against the Lessee in accordance with their respective terms terms; (except to 4) all financial statements and other information heretofore furnished by the extent such enforceability may be limited by insolvency, moratorium, bankruptcy, reorganization or other laws affecting the rights of creditors generally);
(d) neither the execution and delivery of the Lessee’s Documents by Lessee nor the performance by Lessee of any of the transactions contemplated herein and therein will: (i) contravene or constitute a violation or breach of or a default under any existing law or agreement by which Lessee or any of its assets is boundGuarantor, any agreement to which it is a party or Lessee’s organizational documents; (ii) cause any limitation on Lessee or its assets or as the powers of its directors or officers, whether imposed by or contained in Lessee’s organizational documents or any existing law, agreement or otherwise, to be exceeded; or (iii) result in the creation or imposition of, or oblige Lessee to create, any Lien (other than Permitted Liens) over its undertaking or any of its assets, rights or revenues;
(e) except for such filings, registrations and recordings as are specified under this Agreement and the other Lessee’s Documents, it is not necessary or advisable under the laws of the State of Registration or the Habitual Base in order to ensure the validity, effectiveness or enforceability of any Lessee’s Document or to protect the rights of Lessor in the Aircraft or any part thereof that any Lessee’s Document or any other instrument be filed, registered or recorded or that any registration or any other action be taken, and under such laws, the rights of Lessor in the Aircraft will have priority in all respects over the claims of all creditors of Lessee;
(f) the obligations of Lessee under the Lessee’s Documents are, or upon execution thereof by Lessee will case may be, direct, general and unconditional obligations of Lessee and rank, or will rank, at least pari passu with all other present and future unsecured and unsubordinated obligations (including contingent obligations) of Lessee save for obligations mandatorily preferred by law and not by reason of any Lien;
(g) no event has occurred that constitutes a contravention of, or default under, any agreement by which Lessee or any of its assets is bound or affected, and that could reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents;
(h) no litigation, arbitration or administrative proceeding that could (by itself or together with any other such proceedings or claims) reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents is (to Lessee’s knowledge) presently in progress or pending against Lessee or any of its assets;
(i) the unaudited financial statements of Lessee prepared by Lessee’s management for the fiscal year ended December 31, 2010 have been prepared in accordance with Mexican generally accepted accounting principles and practices (“GAAPP”), and when delivered, the audited financial statements of Lessee for the fiscal year ended December 31, 2010 have been prepared in accordance with International Financial Reporting Standards and fairly present the results of its operations for that period and its financial condition at December 31, 2010 and, in particular, to the extent required by International Financial Reporting Standards accurately disclose Lessor were when so furnished (or reserve against all if the liabilities (actual or contingentsame shall be furnished hereafter, when so furnished shall be) of Lessee, and, to Lessee’s knowledge, after reasonable inquiry, there has been no material adverse change to the financial condition of Lessee since December 31, 2010, except as otherwise previously disclosed to Lessor in writing;
(j) all necessary returns have been timely delivered by Lessee to the applicable taxation authorities for which the failure to file could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time, Lessee is not in default in the payment of any Taxes shown to be payable on any such returns true and no claim is being asserted with respect to Taxes that is not disclosed in the audited financial statements referred to in clause (i) above that if payable, could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time;
(k) the financial and other information furnished by or on behalf of Lessee to Lessor and its Affiliates in writing does not, to Lessee’s knowledge, contain any untrue statement of a material fact or omit to state any material fact the omission of which makes the statements therein, in the light of the circumstances under which they were made, misleading, nor omits to disclose any material matter that has or could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry by Lessee;
(l) Lessee, under applicable law, is subject to private commercial law and suit, and neither Lessee nor its properties or assets have any right of immunity from suit or execution on the grounds of sovereignty in the United States;
(m) no Default or Event of Default has occurred and is continuing;
(n) Lessee has not granted to, or registered in favor of, any person other than Lessor an “international interest,” “national interest,” “prospective international interest” (as such terms are defined in the Cape Town Convention) or a de-registration and export request authorization with respect to the Airframe or any Engine;
(o) assuming that no part of the assets to be used by Lessor to acquire its interest in the Aircraft or any Lender to provide financing in respect of the Aircraft constitutes assets of an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, a “plan” as defined in Section 4975 of the Code which is subject to Section 4975 of the Code, an entity whose underlying assets include “plan assets” by reason of any such employee benefit plan’s or plan’s investment in such entity, or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is similar to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, the execution and delivery of this Agreement and the other Lessee’s Documents and the transactions contemplated hereby and thereby will be exempt from, or will not involve any transaction which is subject to, the prohibitions of either Section 406 of ERISA or Section 4975 of the Code and will not involve any transaction in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 of the Codecomplete; and
(p5) Lessee has duly appointed and registered an officer upon any consolidation or merger of the Lessee with or into any other corporation(s) or upon any sale or conveyance of all or substantially all of the International Registry an administrator property of the Lessee to act on behalf any other person or entity, the Lessee will cause the due and punctual performance and observance of all covenants and obligations of the Lessee as a transacting user entityhereunder to be assumed by the surviving corporation or by the person or entity which shall have acquired such property; provided that any such assumption shall not release the Lessee from its obligations hereunder in the case of any sale or conveyance of all or substantially all of its property or where it survives any consolidation or merger. The foregoing representations, warranties and agreements shall remain in effect throughout the term of this Lease.
Appears in 1 contract
Samples: Equipment Lease (Ziplink Inc)
Lessee’s Representations and Warranties. Lessee acknowledges that each of Lessor and the other Lessor Partieshereby represents, has entered into this Agreement and the other Operative Documents in full reliance on representations and warranties by Lessee in this Clause 2.1; and Lessee now represents and warrants to Lessor that the following statements are on the date hereofwarrants, and on the Delivery Date will be, true and accuratecovenants that:
(a) Lessee is a sociedad anónima promotora de inversiones de capital variable that is duly incorporated, validly existing and in good standing under the laws of the United Mexican States, and has full corporate adequate power and authority to conduct its business as presently conducted, to own or hold under lease its assets, capacity to enter into this Lease, any Schedule, and any other documents required to be delivered in connection with this Lease (collectively, the “Documents”); the Documents have been duly authorized, executed and delivered by Lessee and constitute valid, legal and binding agreements, enforceable in accordance with their terms; there are no proceedings presently pending or, to the best knowledge of Lessee, threatened against Lessee which will impair its ability to perform its obligations under the Lessee’s Documents Lease; and all information supplied to consummate the transactions contemplated by the Lessee’s Documents;Lessor is accurate and complete.
(b) Lessee’s organizational documents incorporate provisions that permit, entering into the Lease and all necessary authorizations, approvals, consents, licenses, permits leasing the Property does not and orders of and registrations with any Government Entity, have been duly and unconditionally obtained and are now in full force and effect that are required to authorize, Lessee to sign and deliver, and perform its obligations under and the transactions contemplated by, the Lessee’s Documents;
(c) Lessee has duly authorized, executed and delivered this Agreement and this Agreement constitutes, and the other Lessee’s Documents when executed and delivered by Lessee will constitute, legal, valid and binding obligations of Lessee, enforceable in accordance with their respective terms (except to the extent such enforceability may be limited by insolvency, moratorium, bankruptcy, reorganization or other laws affecting the rights of creditors generally);
(d) neither the execution and delivery of the Lessee’s Documents by Lessee nor the performance by Lessee of any of the transactions contemplated herein and therein willnot: (i) contravene violate any judgment, order, or constitute a violation or breach of or a default under any existing law or agreement by which applicable to the Lease, Lessee or any of its assets is bound, any agreement to which it is a party or Lessee’s organizational documents; or (ii) cause any limitation on Lessee or its assets or the powers of its directors or officers, whether imposed by or contained in Lessee’s organizational documents or any existing law, agreement or otherwise, to be exceeded; or (iii) result in the creation of any lien, security interest or imposition ofother encumbrance upon the Property, or oblige other than as granted hereunder.
(c) All information and representations furnished by Lessee to create, any Lien (other than Permitted Liens) over its undertaking or any of its assets, rights or revenues;Lessor concerning the Property are accurate and correct.
(ed) except for such filings, registrations and recordings as are specified under this Agreement and the other Lessee’s Documents, it is not necessary All financial data of Lessee or advisable under the laws of the State of Registration or the Habitual Base in order to ensure the validity, effectiveness or enforceability of any Lessee’s Document or to protect the rights consolidated group of Lessor in the Aircraft or any part thereof that any Lessee’s Document or any other instrument be filed, registered or recorded or that any registration or any other action be taken, and under such laws, the rights companies of Lessor in the Aircraft will have priority in all respects over the claims of all creditors of Lessee;
(f) the obligations of Lessee under the Lessee’s Documents are, or upon execution thereof by Lessee will be, direct, general and unconditional obligations of Lessee and rank, or will rank, at least pari passu with all other present and future unsecured and unsubordinated obligations (including contingent obligations) of Lessee save for obligations mandatorily preferred by law and not by reason of any Lien;
(g) no event has occurred that constitutes a contravention of, or default under, any agreement by which Lessee or any of its assets is bound or affected, and that could reasonably be expected a member (“Lessee Group”) delivered to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents;
(h) no litigation, arbitration or administrative proceeding that could (by itself or together with any other such proceedings or claims) reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents is (to Lessee’s knowledge) presently in progress or pending against Lessee or any of its assets;
(i) the unaudited financial statements of Lessee prepared by Lessee’s management for the fiscal year ended December 31, 2010 Lessor have been prepared in accordance with Mexican generally accepted accounting principles and practices (“GAAPP”), and when delivered, the audited financial statements of Lessee for the fiscal year ended December 31, 2010 have been prepared in accordance applied on a consistent basis with International Financial Reporting Standards prior periods and fairly present the financial position and results of its from operations for that period and its financial condition at December 31, 2010 and, in particular, to the extent required by International Financial Reporting Standards accurately disclose or reserve against all the liabilities (actual or contingent) of Lessee, andor of the Lessee Group, to Lessee’s knowledge, after reasonable inquiryas of the stated date and period(s). Since the date of the most recently-delivered financial data, there has been no material adverse change to in the financial condition of Lessee since December 31financial, 2010, except as otherwise previously disclosed to Lessor in writing;
(j) all necessary returns have been timely delivered by Lessee to the applicable taxation authorities for which the failure to file could reasonably be expected to have a material adverse effect on the financial business or operating condition of Lessee or an adverse effect on of the Lessee Group.
(e) If Lessee is a business entity, it is and shall be validly existing and in good standing under laws of the state of its organization, and Lessee shall give written notice to Lessor within 30 days of any termination or revocation of Lessee’s ability existence by its state of organization. Lessee shall not change its state of organization, headquarters or residence without providing prior written notice to observe or perform any of its obligations under Lessor. The persons signing the Lessee’s DocumentsDocuments are acting with all necessary authority and hold the offices indicated below their signatures, taking into account all other obligations that Lessee must observe or perform at that time, Lessee is not in default in the payment of any Taxes shown to be payable on any such returns and no claim is being asserted with respect to Taxes that is not disclosed in the audited financial statements referred to in clause (i) above that if payable, could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time;which are genuine.
(k) the financial and other information furnished by or on behalf of Lessee to Lessor and its Affiliates in writing does not, to Lessee’s knowledge, contain any untrue statement of a material fact or omit to state any material fact the omission of which makes the statements therein, in the light of the circumstances under which they were made, misleading, nor omits to disclose any material matter that has or could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry by Lessee;
(l) Lessee, under applicable law, is subject to private commercial law and suit, and neither Lessee nor its properties or assets have any right of immunity from suit or execution on the grounds of sovereignty in the United States;
(m) no Default or Event of Default has occurred and is continuing;
(nf) Lessee has not granted toreceived any tax or accounting advice from Lessor, and Lessor shall have no liability for Lessee’s failure to secure any particular tax benefits or registered in favor of, any person other than Lessor an “international interest,” “national interest,” “prospective international interest” (as such terms are defined in the Cape Town Convention) or a de-registration and export request authorization accounting treatment with respect to the Airframe Lease or any Engine;
(o) assuming that no part of the assets to be used by Lessor to acquire its interest in the Aircraft or any Lender to provide financing in respect of the Aircraft constitutes assets of an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, a “plan” as defined in Section 4975 of the Code which is subject to Section 4975 of the Code, an entity whose underlying assets include “plan assets” by reason of any such employee benefit plan’s or plan’s investment in such entity, or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is similar to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, the execution and delivery of this Agreement and the other Lessee’s Documents and the transactions contemplated hereby and thereby will be exempt from, or will not involve any transaction which is subject to, the prohibitions of either Section 406 of ERISA or Section 4975 of the Code and will not involve any transaction in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 of the Code; and
(p) Lessee has duly appointed and registered an officer of Lessee with the International Registry an administrator to act on behalf of Lessee as a transacting user entityProperty.
Appears in 1 contract
Lessee’s Representations and Warranties. Lessee acknowledges that each represents, warrants and certifies as of Lessor and the other Lessor Parties, has entered into this Agreement and the other Operative Documents in full reliance on representations and warranties by Lessee in this Clause 2.1; and Lessee now represents and warrants to Lessor that the following statements are on the date hereof, of execution and on the Delivery Date will be, true delivery of this Master Lease and accurateeach Rental Schedule as follows:
(a) Lessee is a sociedad anónima promotora de inversiones de capital variable that is duly incorporatedorganized, validly existing and in good standing under the laws of the United Mexican States, and has Missouri Corporation with full corporate power and authority to conduct its business as presently conducted, to own or hold under lease its assets, to enter into and to pay and perform its obligations under the Lessee’s Documents Rental Schedule and this Master Lease as incorporated therein by reference, and is duly qualified in all other jurisdictions where its failure to consummate so qualify would adversely affect the transactions contemplated by conduct of its business or the Lessee’s Documentsperformance of its obligations under or the enforceability of the Lease;
(b) Lessee’s organizational documents incorporate provisions that permitthe Rental Schedule, this Master Lease and all necessary authorizations, approvals, consents, licenses, permits and orders of and registrations with any Government Entity, related documents have been duly and unconditionally obtained and are now in full force and effect that are required to authorize, Lessee to sign and deliver, and perform its obligations under and the transactions contemplated by, the Lessee’s Documents;
(c) Lessee has duly authorized, executed and delivered this Agreement and this Agreement constitutesby Lessee, and the other Lessee’s Documents when executed and delivered by Lessee will constituteare valid, legal, valid legal and binding obligations of Lessee, are enforceable against Lessee in accordance with their respective terms (except to the extent such enforceability may be limited by insolvency, moratorium, bankruptcy, reorganization or other laws affecting the rights and do not and will not contravene any provisions of creditors generally);
(d) neither the execution and delivery of the Lessee’s Documents by Lessee nor the performance by Lessee of any of the transactions contemplated herein and therein will: (i) contravene or constitute a violation or breach of or a default under any existing law or agreement by which Lessee or any of its assets is boundLessee's organizational documents, any agreement to which it is a party or by which it or its property is bound, or any law, regulation or order of any governmental authority;
(c) Lessor's right, title and interest in and to the Rental Schedule, this Master Lease and the Equipment and the rentals therefrom will vest in Lessor upon Lessee’s organizational documents; (ii) cause 's acceptance of the Equipment for lease hereunder and will not be affected or impaired by the terms of any limitation on agreement or instrument by which Lessee or its assets or the powers of its directors or officers, whether imposed by or contained in Lessee’s organizational documents or any existing law, agreement or otherwise, to be exceeded; or property is bound;
(iiid) result in the creation or imposition no approval of, or oblige Lessee to createfiling with, any Lien (governmental authority or other than Permitted Liens) over its undertaking person is required in connection with Lessee's entering into, or any the payment or performance of its assetsobligations under, rights or revenuesthe Lease;
(e) except for such filingsother than as disclosed in Lessee's most recent 10K and lOQ, registrations and recordings as there are specified under this Agreement and no suits or proceedings pending or, to the other knowledge of Lessee’s Documents, it is not necessary threatened, before any court or advisable governmental agency against or affecting Lessee which, if decided adversely to Lessee, would materially adversely affect Lessee's business or financial condition or its ability to perform any of its obligations under the laws of the State of Registration or the Habitual Base in order to ensure the validity, effectiveness or enforceability of any Lessee’s Document or to protect the rights of Lessor in the Aircraft or any part thereof that any Lessee’s Document or any other instrument be filed, registered or recorded or that any registration or any other action be taken, and under such laws, the rights of Lessor in the Aircraft will have priority in all respects over the claims of all creditors of LesseeLease;
(f) the obligations of Lessee under the Lessee’s Documents are, or upon execution thereof by Lessee will be, direct, general and unconditional obligations of Lessee and rank, or will rank, at least pari passu with all other present and future unsecured and unsubordinated obligations (including contingent obligations) of Lessee save for obligations mandatorily preferred by law and not by reason of any Lien;
(g) no event has occurred that constitutes a contravention of, or default under, any agreement by which Lessee or any of its assets is bound or affected, and that could reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents;
(h) no litigation, arbitration or administrative proceeding that could (by itself or together with any other such proceedings or claims) reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents is (to Lessee’s knowledge) presently in progress or pending against Lessee or any of its assets;
(i) the unaudited financial statements of Lessee prepared by Lessee’s management for the fiscal year ended December 31, 2010 have been prepared in accordance with Mexican generally accepted accounting principles and practices (“GAAPP”), and when delivered, the audited financial statements of Lessee for the fiscal year ended December 31, 2010 have been prepared in accordance with International Financial Reporting Standards and fairly present the results of its operations for that period and its financial condition at December 31, 2010 and, in particular, to the extent required by International Financial Reporting Standards accurately disclose or reserve against all the liabilities (actual or contingent) of Lessee, and, to Lessee’s knowledge, after reasonable inquiry, there has been no material adverse change to the Lessee's financial condition since the date of Lessee since December 31, 2010, except as otherwise previously disclosed its most recent audited financial statements delivered to Lessor in writingLessor;
(jg) all necessary returns have been timely delivered by the address stated in the preamble to this Master Lease as Lessee's principal place of business is the principal place of business and chief executive office of Lessee; Lessee to does not conduct business under a trade, assumed or fictitious name; Lessee will not change its name or the applicable taxation authorities for which the failure to file could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any location of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time, Lessee is not in default in the payment principal place of any Taxes shown to be payable on any such returns and no claim is being asserted with respect to Taxes that is not disclosed in the audited financial statements referred to in clause (i) above that if payable, could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time;
(k) the financial and other information furnished by or on behalf of Lessee business without giving to Lessor and its Affiliates in writing does not, to Lessee’s knowledge, contain any untrue statement of a material fact or omit to state any material fact the omission of which makes the statements therein, in the light of the circumstances under which they were made, misleading, nor omits to disclose any material matter that has or could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry by Lessee;
at least thirty (l30) Lessee, under applicable law, is subject to private commercial law and suit, and neither Lessee nor its properties or assets have any right of immunity from suit or execution on the grounds of sovereignty in the United States;
(m) no Default or Event of Default has occurred and is continuing;
(n) Lessee has not granted to, or registered in favor of, any person other than Lessor an “international interest,” “national interest,” “prospective international interest” (as such terms are defined in the Cape Town Convention) or a de-registration and export request authorization with respect to the Airframe or any Engine;
(o) assuming that no part of the assets to be used by Lessor to acquire its interest in the Aircraft or any Lender to provide financing in respect of the Aircraft constitutes assets of an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, a “plan” as defined in Section 4975 of the Code which is subject to Section 4975 of the Code, an entity whose underlying assets include “plan assets” by reason of any such employee benefit plan’s or plan’s investment in such entity, or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is similar to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, the execution and delivery of this Agreement and the other Lessee’s Documents and the transactions contemplated hereby and thereby will be exempt from, or will not involve any transaction which is subject to, the prohibitions of either Section 406 of ERISA or Section 4975 of the Code and will not involve any transaction in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 of the Codedays prior written notice thereof; and
(ph) Lessee has duly appointed the Equipment will always be used for business or commercial and registered an officer not personal purposes. Lessee's representations and warranties shall survive termination or expiration of Lessee with the International Registry an administrator to act on behalf of Lessee as a transacting user entityLease.
Appears in 1 contract
Lessee’s Representations and Warranties. Lessee acknowledges that each of Lessor and the other Lessor Parties, has entered into this Agreement and the other Operative Documents in full reliance on representations and warranties by Lessee in this Clause 2.1; and Lessee now represents and warrants (and if requested by Lessor, promptly will provide supporting documents to Lessor the effect that the following statements are on as of the date hereofthat Lessee signs this Master Lease, as of any date that Lessor makes a payment to a Vendor prior to the date all Equipment has been accepted for lease hereunder, as of each date that any Equipment is accepted for lease hereunder and on as of each Lease Commencement Date pursuant to a Rental Schedule hereunder: (i) all items of the Delivery Date will beEquipment are new and unused as of the Lease Commencement Date, true and accurate:
unless otherwise specified in the applicable Rental Schedule in which event the specified items of the Equipment shall have been delivered new to Lessee by their suppliers not more than 90 days prior to their Lease Term Commencement; (aii) Lessee is a sociedad anónima promotora de inversiones de capital variable that is duly incorporatedorganized, validly existing and in good standing under the laws of the United Mexican Statesjurisdiction of its organization, and is qualified and in good standing to do business wherever necessary to carry on its present business and operations, including the jurisdictions where the Equipment is or will be located; (iii) Lessee has full corporate the power and authority to conduct its business as presently conducted, to own or hold under lease its assets, to enter into this Lease and the other instruments and documents executed by Lessee in connection herewith (together with this Lease, the "Transactional Documents") and to pay and perform its obligations under this Lease and the Lessee’s other Transactional Documents; (iv) this Lease and the other Transactional Documents and to consummate the transactions contemplated by the Lessee’s Documents;
(b) Lessee’s organizational documents incorporate provisions that permit, and all necessary authorizations, approvals, consents, licenses, permits and orders of and registrations with any Government Entity, have been duly and unconditionally obtained and are now in full force and effect that are required to authorize, Lessee to sign and deliver, and perform its obligations under and the transactions contemplated by, the Lessee’s Documents;
(c) Lessee has duly authorized, executed and delivered this Agreement and this Agreement constitutesby Lessee, and constitute the other Lessee’s Documents when executed and delivered by Lessee will constitutevalid, legal, valid legal and binding obligations of Lessee, Lessee enforceable in accordance with their respective terms terms; (except v) no vote or consent of, or notice to, the holders of any class of stock of Lessee is required, or if required, such vote or consent has been obtained or given, to authorize the extent such enforceability may be limited execution, delivery and performance of this Lease and the other Transactional Documents by insolvency, moratorium, bankruptcy, reorganization or other laws affecting the rights of creditors generally);
Lessee; (dvi) neither the execution and delivery of the Lessee’s Documents by Lessee nor the performance by Lessee of any this Lease or the other Transactional Documents, nor the consummation by Lessee of the transactions contemplated herein and therein will: (i) contravene or constitute a violation or breach of or a default under any existing law or agreement by which Lessee or any of its assets is bound, any agreement to which it is a party or Lessee’s organizational documents; (ii) cause any limitation on Lessee or its assets or the powers of its directors or officers, whether imposed by or contained in Lessee’s organizational documents or any existing law, agreement or otherwise, to be exceeded; or (iii) result in the creation or imposition of, or oblige Lessee to create, any Lien (other than Permitted Liens) over its undertaking or any of its assets, rights or revenues;
(e) except for such filings, registrations and recordings as are specified under this Agreement and the other Lessee’s Documents, it is not necessary or advisable under the laws of the State of Registration or the Habitual Base in order to ensure the validity, effectiveness or enforceability of any Lessee’s Document or to protect the rights of Lessor in the Aircraft or any part thereof that any Lessee’s Document or any other instrument be filed, registered or recorded or that any registration or any other action be taken, and under such laws, the rights of Lessor in the Aircraft will have priority in all respects over the claims of all creditors of Lessee;
(f) the obligations of Lessee under the Lessee’s Documents are, or upon execution thereof by Lessee will be, direct, general and unconditional obligations of Lessee and rank, or will rank, at least pari passu with all other present and future unsecured and unsubordinated obligations (including contingent obligations) of Lessee save for obligations mandatorily preferred by law and not by reason of any Lien;
(g) no event has occurred that constitutes a contravention of, or default under, any agreement by which Lessee or any of its assets is bound or affected, and that could reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents;
(h) no litigation, arbitration or administrative proceeding that could (by itself or together with any other such proceedings or claims) reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents is (to Lessee’s knowledge) presently in progress or pending against Lessee or any of its assets;
(i) the unaudited financial statements of Lessee prepared by Lessee’s management for the fiscal year ended December 31, 2010 have been prepared in accordance with Mexican generally accepted accounting principles and practices (“GAAPP”), and when delivered, the audited financial statements of Lessee for the fiscal year ended December 31, 2010 have been prepared in accordance with International Financial Reporting Standards and fairly present the results of its operations for that period and its financial condition at December 31, 2010 and, in particular, to the extent required by International Financial Reporting Standards accurately disclose or reserve against all the liabilities (actual or contingent) of Lessee, and, to Lessee’s knowledge, after reasonable inquiry, there has been no material adverse change to the financial condition of Lessee since December 31, 2010, except as otherwise previously disclosed to Lessor in writing;
(j) all necessary returns have been timely delivered by Lessee to the applicable taxation authorities for which the failure to file could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time, Lessee is not in default in the payment of any Taxes shown to be payable on any such returns and no claim is being asserted with respect to Taxes that is not disclosed in the audited financial statements referred to in clause (i) above that if payable, could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time;
(k) the financial and other information furnished by or on behalf of Lessee to Lessor and its Affiliates in writing does not, to Lessee’s knowledge, contain any untrue statement of a material fact or omit to state any material fact the omission of which makes the statements therein, in the light of the circumstances under which they were made, misleading, nor omits to disclose any material matter that has or could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry by Lessee;
(l) Lessee, under applicable law, is subject to private commercial law and suit, and neither Lessee nor its properties or assets have any right of immunity from suit or execution on the grounds of sovereignty in the United States;
(m) no Default or Event of Default has occurred and is continuing;
(n) Lessee has not granted to, or registered in favor of, any person other than Lessor an “international interest,” “national interest,” “prospective international interest” (as such terms are defined in the Cape Town Convention) or a de-registration and export request authorization with respect to the Airframe or any Engine;
(o) assuming that no part of the assets to be used by Lessor to acquire its interest in the Aircraft or any Lender to provide financing in respect of the Aircraft constitutes assets of an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, a “plan” as defined in Section 4975 of the Code which is subject to Section 4975 of the Code, an entity whose underlying assets include “plan assets” by reason of any such employee benefit plan’s or plan’s investment in such entity, or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is similar to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, the execution and delivery of this Agreement and the other Lessee’s Documents and the transactions contemplated hereby and thereby will be exempt from, or will not involve any transaction which is subject to, the prohibitions of either Section 406 of ERISA or Section 4975 of the Code and will not involve any transaction in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 of the Code; and
(p) Lessee has duly appointed and registered an officer of Lessee with the International Registry an administrator to act on behalf of Lessee as a transacting user entity.transactions
Appears in 1 contract
Samples: Master Equipment Lease Agreement (Vion Pharmaceuticals Inc)
Lessee’s Representations and Warranties. The Lessee acknowledges that each of Lessor and the other Lessor Parties, has entered into this Agreement and the other Operative Documents in full reliance on representations and warranties by Lessee in this Clause 2.1; and Lessee now further represents and warrants to the Lessor that that:
3.2.1 no Default has occurred and is continuing or would occur as a result of Delivery;
3.2.2 it is not involved in any litigation or other dispute nor is there (to its knowledge) any claim pending against it, the following outcome of which could have a material adverse effect on its financial condition or its ability to perform its obligations under this Agreement or any other Transaction Document to which it is a party;
3.2.3 the Original Financial Statements and its most recently prepared management financial statements are on (subject to normal year-end adjustments) (which have been delivered to the date hereof, and on the Delivery Date will be, true and accurate:Lessor):
(a) Lessee is a sociedad anónima promotora de inversiones de capital variable that is duly incorporated, validly existing and have been prepared in good standing under the laws of the United accordance with Mexican States, and has full corporate power and authority to conduct its business as presently conducted, to own or hold under lease its assets, to enter into and perform its obligations under the Lessee’s Documents and to consummate the transactions contemplated by the Lessee’s DocumentsGAAP;
(b) fairly represent the financial condition of the Lessee as at the date to which they were drawn up; and
(c) do not contain any untrue statement or omit to state a material fact which could make them misleading;
3.2.4 since the preparation of the financial statements referred to in (c) above, there has been no material adverse change in the Lessee’s organizational documents incorporate provisions that permitability to perform its obligations under this Agreement or its financial condition;
3.2.5 all licences, and all necessary authorizations, approvalsauthorisations, consents, licensesregistrations and notifications required in connection with the entry into, permits performance, validity and orders of enforceability of, the Transaction Documents and registrations with any Government Entitythe transactions contemplated therein, have been duly and unconditionally (or will promptly following the Delivery Date be) obtained or effected (as appropriate) and are now (or will on their being obtained or effected be) in full force and effect;
3.2.6 it has paid or caused to be paid, all fees or charges assessed and due against it by any airport or air navigation authority assessing landing or navigation fees or charges in respect of aircraft operated by the Lessee the failure of which would have a material adverse effect that are required on the Lessee’s ability to authorize, Lessee to sign and deliver, and perform its obligations under and hereunder or which could reasonably be expected to result in a material risk of the transactions contemplated bysale, forfeiture, detention, impoundment or other loss of the Lessee’s DocumentsAircraft or the use thereof;
3.2.7 it does not hold a contract or other obligation to operate the Aircraft to or from an Excluded Country;
3.2.8 where the State of Registration is México, except for (c1) Lessee has duly authorized, executed and delivered the Lessor’s (or the Security Trustee’s) taking possession in New York of the tangible chattel paper original copy of this Agreement and (insofar as this Agreement constitutes, and the other Lessee’s Documents when executed and delivered by Lessee will constitute, legal, valid and binding obligations of Lessee, enforceable in accordance with their respective terms constitutes tangible chattel paper (except to the extent as such enforceability may be limited by insolvency, moratorium, bankruptcy, reorganization or other laws affecting the rights of creditors generally);
(d) neither the execution and delivery of the Lessee’s Documents by Lessee nor the performance by Lessee of any of the transactions contemplated herein and therein will: (i) contravene or constitute a violation or breach of or a default under any existing law or agreement by which Lessee or any of its assets term is bound, any agreement to which it is a party or Lessee’s organizational documents; (ii) cause any limitation on Lessee or its assets or the powers of its directors or officers, whether imposed by or contained in Lessee’s organizational documents or any existing law, agreement or otherwise, to be exceeded; or (iii) result defined in the creation or imposition ofUCC)), or oblige Lessee to create, any Lien (other than Permitted Liens2) over its undertaking or any the registration of its assets, rights or revenues;
(e) except for such filings, registrations and recordings as are specified under a certified Spanish language translation of this Agreement and the other Lessee’s DocumentsXxxx of Sale and the registration of the Aircraft with the Aviation Authority, (3) the effectuation of the Pre-Delivery Authorizations and Filings and the Post-Delivery Authorizations and Filings and the filing of any relevant document evidencing the interests of the Security Trustee (if any) with the DGAC, (4) the recordation of the International Interests arising hereunder and thereunder (if any) with the International Registry pursuant to the Cape Town Convention, (5) the issuance of a permanent certificate of airworthiness, (6) the placing on the Aircraft and on each Engine of the plates containing the legends referred to in Clause 12.1.1), (7) the import of the Aircraft into México and the payment of any applicable import duties related to such import and (8) the filing of UCC 1 financing statements in the District of Columbia, it is not necessary or advisable under the laws of the State of Registration New York, the State of Registration, the State of Incorporation or the Habitual Base in order to to:
(a) ensure the legality, validity, effectiveness effectiveness, enforceability or enforceability of any Lessee’s Document admissibility in evidence; or
(b) establish, protect or to protect perfect the rights and interests of Lessor the Lessor, the Owner and any Security Trustee in the Aircraft or any part thereof Engine or Part, that this Agreement or any Lessee’s other Transaction Document or any other instrument be notarised, filed, recorded, registered or recorded enrolled in any court, public office or elsewhere in the United States of America, the State of Incorporation, the Habitual Base or, if different, the State of Registration or that any registration or any other action be takentaken or that any stamp, and under such lawsregistration or similar tax or charge be paid in the United States of America, the State of Incorporation, the Habitual Base or, if different, the State of Registration on or in relation to any of the Transaction Documents:
3.2.9 where the State of Registration is the United States of America, except for (1) the Lessor’s (or the Security Trustee’s) taking possession in New York of the tangible chattel paper original copy of this Agreement (insofar as this Agreement constitutes tangible chattel paper (as such term is defined in the UCC)), (2) the registration of the Aircraft with the FAA, (3) the filing of the FAA Filed Documents and any relevant document evidencing the interests of the Security Trustee (if any) with the FAA, (4) the recordation of the International Interests arising hereunder and thereunder (if any) with the International Registry pursuant to the Cape Town Convention, (5) the issuance of a permanent certificate of airworthiness, (6) the placing on the Aircraft and on each Engine of the plates containing the legends referred to in Clause 12.1.1) and (7) the filing of UCC-1 financing statements in the District of Columbia, it is not necessary under the laws of the United States of America, the State of Incorporation or the Habitual Base in order to:
(a) ensure the legality, validity, effectiveness, enforceability or admissibility in evidence; or
(b) establish, protect or (if possible under applicable law) perfect the rights and interests of Lessor the Lessor, the Owner Participant and any Security Trustee in the Aircraft will have priority or any Engine or Part, that this Agreement or any other Transaction Document or any other instrument be notarised, filed, recorded, registered or enrolled in all respects over any court, public office or elsewhere in the claims United States of all creditors America, the State of Incorporation or the Habitual Base or that any other action be taken or that any stamp, registration or similar tax or charge be paid in the United States of America, the State of Incorporation or the Habitual Base on or in relation to any of the Transaction Documents;
3.2.10 it is subject to civil commercial law with respect to its obligations under the Transaction Documents to which it is a party, neither it nor any of its assets is entitled to any right of immunity and the entry into and performance by it of the Transaction Documents to which it is a party constitute private and commercial acts;
3.2.11 the choice by the Lessee of New York law to govern the Transaction Documents to which it is a party and the submission by the Lessee to the jurisdiction of the New York courts specified in Clause 25.1, hereof is valid and binding on the Lessee;
(f) the 3.2.12 its obligations of Lessee under the Lessee’s Transaction Documents are, or upon execution thereof by Lessee will be, direct, general and unconditional obligations of Lessee and rank, or will rank, to which it is a party rank at least pari passu with all other of its present and future unsecured and unsubordinated obligations (including contingent obligations) with the exception of Lessee save for such obligations as are mandatorily preferred by law and not by reason virtue of any Liencontract;
(g) no event has occurred that constitutes a contravention of, or default under, any agreement by which Lessee or any of its assets is bound or affected, and that could reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents;
(h) no litigation, arbitration or administrative proceeding that could (by itself or together with any other such proceedings or claims) reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents is (to Lessee’s knowledge) presently in progress or pending against Lessee or any of its assets;
(i) the unaudited financial statements of Lessee prepared by Lessee’s management for the fiscal year ended December 31, 2010 have been prepared in accordance with Mexican generally accepted accounting principles and practices (“GAAPP”), and when delivered, the audited financial statements of Lessee for the fiscal year ended December 31, 2010 have been prepared in accordance with International Financial Reporting Standards and fairly present the results of its operations for that period and its financial condition at December 31, 2010 and, in particular, to the extent required by International Financial Reporting Standards accurately disclose or reserve against all the liabilities (actual or contingent) of Lessee, and, to Lessee’s knowledge, after reasonable inquiry, there has been no material adverse change to the financial condition of Lessee since December 31, 2010, except as otherwise previously disclosed to Lessor in writing;
(j) all necessary returns have been timely delivered by Lessee to the applicable taxation authorities for which the failure to file could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time, Lessee is not in default in the payment of any Taxes shown to be payable on any such returns and no claim is being asserted with respect to Taxes that is not disclosed in the audited financial statements referred to in clause (i) above that if payable, could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time;
(k) the financial and other information furnished by or on behalf of Lessee to Lessor and its Affiliates in writing does not, to Lessee’s knowledge, contain any untrue statement of a material fact or omit to state any material fact the omission of which makes the statements therein, in the light of the circumstances under which they were made, misleading, nor omits to disclose any material matter that has or could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry by Lessee;
(l) Lessee, under applicable law, is subject to private commercial law and suit, and neither Lessee nor its properties or assets have any right of immunity from suit or execution on the grounds of sovereignty in the United States;
(m) no Default or Event of Default has occurred and is continuing;
(n) Lessee has not granted to, or registered in favor of, any person other than Lessor an “international interest,” “national interest,” “prospective international interest” (as such terms are defined in the Cape Town Convention) or a de-registration and export request authorization with respect to the Airframe or any Engine;
(o) assuming that no part of the assets to be used by Lessor to acquire its interest in the Aircraft or any Lender to provide financing in respect of the Aircraft constitutes assets of an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, a “plan” as defined in Section 4975 of the Code which is subject to Section 4975 of the Code, an entity whose underlying assets include “plan assets” by reason of any such employee benefit plan’s or plan’s investment in such entity, or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is similar to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, the execution and delivery of this Agreement and the other Lessee’s Documents and the transactions contemplated hereby and thereby will be exempt from, or will not involve any transaction which is subject to, the prohibitions of either Section 406 of ERISA or Section 4975 of the Code and will not involve any transaction in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 of the Code; and
(p) Lessee 3.2.13 it has duly appointed and registered an officer of Lessee with the International Registry an administrator to act on behalf of the Lessee as a transacting user entity;
3.2.14 it holds all licenses, certificates, permits and approvals necessary for the conduct of its business as a passenger commercial carrier and to operate on the routes that it currently operates and for the performance of its obligations under this Agreement and each other Transaction Document to which it is a party;
3.2.15 its “location”, for purposes of Section 9-307 of the UCC, is the District of Columbia and the full and correct legal name and mailing address of the Lessee as of the Delivery Date are correctly set forth in Part B of Schedule 7 (Reporting & notices), and the Lessee is situated for the purposes of Article 3(1) of the Cape Town Convention in a “contracting state”, as such term is defined in the Cape Town Convention.
3.2.16 no approvals, licenses or consents are necessary to enable the Lessor to export the Aircraft from the Habitual Base and to deregister the Aircraft from the State of Registration upon the termination of the leasing of the Aircraft under this Agreement.
3.2.17 all required import licenses and all customs formalities relating to the import of the Aircraft into the Habitual Base have been obtained or complied with or shall be obtained or complied with within the timeline provided in the definition of Post-Delivery Authorizations and Filings and all Taxes payable in connection with the import of the Aircraft into the Habitual Base have been paid or shall be paid when due;
3.2.18 the Lessee is not required to deduct, from any payment hereunder, any Taxes other than applicable withholding tax at a rate, as of the date of this Agreement, of 5% (which may effectively be reduced by a Tax credit available to the Lessee equivalent to 80% of the applicable withholding Tax and, without limiting Clause 3.1.4 the provisions of Clause 14.2 and Clause 14.4 requiring the Lessee to “gross-up” the Lessor for such withholding Tax and any applicable rate after the date of this Agreement, are legal, valid, binding and enforceable obligations of the Lessee in accordance with their terms.
Appears in 1 contract
Samples: Aircraft Operating Lease Agreement (Controladora Vuela Compania De Aviacion, S.A.B. De C.V.)
Lessee’s Representations and Warranties. The Lessee acknowledges that each of Lessor and the other Lessor Parties, has entered into this Agreement and the other Operative Documents in full reliance on representations and warranties by Lessee in this Clause 2.1; and Lessee now --------------------------------------- represents and warrants to Lessor that the following statements are on the date hereofthat, and on as of the Delivery Date will be(unless any such representation and warranty is specifically made as of an earlier date, true in which case the Lessee represents and accurate:warrants as of such earlier date):
(a) the Lessee is a sociedad anónima promotora de inversiones de capital variable that is corporation duly incorporated, organized and validly existing and is in good standing under the laws of State of Delaware, has its principal place of business and chief executive office (as such terms are used in Article 9 of the United Mexican StatesUniform Commercial Code) in Morrisville, North Carolina at the address set forth in Section 9.01(a), and is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction where the failure to be so qualified or in good standing would have a materially adverse effect on its business or would impair its ability to perform its obligations under the Lessee Documents;
(b) the Lessee has full corporate power power, authority and authority legal right to conduct its business and operations as presently conducted, currently conducted and to own or hold under lease its assets, properties and to enter into and perform its obligations under the Lessee Documents;
(c) the Lessee is an "air carrier" within the meaning of the Transportation Code and a holder of a certificate under Section 41102(a) of the Transportation Code and a "citizen of the United States" within the meaning of Section 40102(a)(15) of the Transportation Code holding an "air carrier operating certificate" issued under Chapter 447 of the Transportation Code for aircraft capable of carrying ten or more individuals or 6,000 pounds or more of cargo, and each such certificate is in full force and effect;
(d) the Lessee possesses all necessary certificates, franchises, licenses, permits, rights and concessions and consents (collectively "permits") which are necessary to the operation of the routes flown by it and the conduct of its business and operations as currently conducted and each such permit is in full force and effect, except for any such permits the failure to have or maintain which would not have a material adverse effect on the Lessee or its ability to perform its obligations under the Lessee Documents;
(e) the execution, delivery and performance of the Lessee Documents by the Lessee have been duly authorized by all necessary corporate action on the part of the Lessee and do not require any stockholder approval, or approval or consent of any trustee or holder of any indebtedness or obligations of the Lessee’s , and each such Lessee Documents has been duly executed and delivered and constitutes the legal, valid and binding obligations of the Lessee enforceable against it in accordance with the terms thereof except as such enforceability may be limited by bankruptcy, insolvency, or other similar laws or by general equitable principles;
(f) no authorization, consent or approval of or other action by, and no notice to or filing with, any United States federal or state governmental authority or regulatory body is required for the execution, delivery or performance by the Lessee of the Lessee Documents except for such registrations, applications and recordings referred to in the opinion of Xxxxx and Xxxxxxx P.C. delivered pursuant to Section 3.01(b)(xv)(F) and the filings referred to in Section 3.01(j)(ii);
(g) neither the execution, delivery or performance by the Lessee of the Lessee Documents nor compliance with the terms and provisions hereof or thereof, conflicts or will conflict with or results or will result in a breach or violation of any of the terms, conditions or provisions of, or will require any consent (other than the PAA Consent and the Engine Manufacturer's Consent) or approval under, any Applicable Law or the charter documents, as amended, or bylaws, as amended, of the Lessee or any order, writ, injunction or decree of any court or governmental authority against the Lessee or by which it or any of its properties is bound or any indenture, mortgage or contract or other agreement or instrument to which the Lessee is a party or by which it or any of its properties is bound, or constitutes or will constitute a default thereunder or results or will result in the imposition of any Lien upon the Aircraft or any of its properties (other than Permitted Liens), except for any such conflict, breach or default which would not have a material adverse effect on the Lessee or its ability to perform its obligations under the Lessee Documents;
(h) except as disclosed in any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K filed by Lessee with the SEC on or prior to the date hereof or as otherwise disclosed in writing to the Lessor, there are no pending or, to the knowledge of the Lessee, threatened actions, suits, investigations or proceedings against or affecting the Lessee or any of its properties before or by any court, governmental agency, arbitration board, tribunal or other administrative agency which, (A) may reasonably be expected to have a materially adverse effect on the Lessee's consolidated financial condition, business, or operations, or (B) would materially adversely affect the ability of the Lessee to consummate the transactions contemplated by the Lessee’s Documents;
(b) Lessee’s organizational documents incorporate provisions that permit, and all necessary authorizations, approvals, consents, licenses, permits and orders of and registrations with any Government Entity, have been duly and unconditionally obtained and are now in full force and effect that are required to authorize, Lessee to sign and deliver, and perform its obligations under and the transactions contemplated by, the Lessee’s Documents;
(c) Lessee has duly authorized, executed and delivered this Agreement and this Agreement constitutes, and the other Lessee’s Documents when executed and delivered by Lessee will constitute, legal, valid and binding obligations of Lessee, enforceable in accordance with their respective terms (except to the extent such enforceability may be limited by insolvency, moratorium, bankruptcy, reorganization or other laws affecting the rights of creditors generally);
(d) neither the execution and delivery of the Lessee’s Documents by Lessee nor the performance by Lessee of any of the transactions contemplated herein and therein will: (i) contravene or constitute a violation or breach of or a default under any existing law or agreement by which Lessee or any of its assets is bound, any agreement to which it is a party or Lessee’s organizational documents; (ii) cause any limitation on Lessee or its assets or the powers of its directors or officers, whether imposed by or contained in Lessee’s organizational documents or any existing law, agreement or otherwise, to be exceeded; or (iii) result in the creation or imposition of, or oblige Lessee to create, any Lien (other than Permitted Liens) over its undertaking or any of its assets, rights or revenues;
(e) except for such filings, registrations and recordings as are specified under this Agreement and the other Lessee’s Documents, it is not necessary or advisable under the laws of the State of Registration or the Habitual Base in order to ensure the validity, effectiveness or enforceability of any Lessee’s Document or to protect the rights of Lessor in the Aircraft or any part thereof that any Lessee’s Document or any other instrument be filed, registered or recorded or that any registration or any other action be taken, and under such laws, the rights of Lessor in the Aircraft will have priority in all respects over the claims of all creditors of Lessee;
(f) the obligations of Lessee under the Lessee’s Documents are, or upon execution thereof by Lessee will be, direct, general and unconditional obligations of Lessee and rank, or will rank, at least pari passu with all other present and future unsecured and unsubordinated obligations (including contingent obligations) of Lessee save for obligations mandatorily preferred by law and not by reason of any Lien;
(g) no event has occurred that constitutes a contravention of, or default under, any agreement by which Lessee or any of its assets is bound or affected, and that could reasonably be expected to have a material adverse effect on Lessee’s ability to observe Operative Agreements or perform its obligations under the Lessee’s Lessee Documents;
(h) no litigation, arbitration or administrative proceeding that could (by itself or together with any other such proceedings or claims) reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents is (to Lessee’s knowledge) presently in progress or pending against Lessee or any of its assets;
(i) except for (A) the unaudited financial registration in the Lessor's name of the Aircraft pursuant to the Transportation Code, (B) the filing with and, where appropriate, recordation by the FAA pursuant to the Transportation Code of the Lease (including Lease Supplement No. 1) and (C) the filing of the financing statement or statements of Lessee prepared by Lessee’s management for the fiscal year ended December 31, 2010 have been prepared referred to in accordance with Mexican generally accepted accounting principles and practices (“GAAPP”Section 3.01(k), no further action, including any filing or recording of any document, is necessary or advisable in order to establish the Lessor's title to and when delivered, interest in the audited financial statements of Aircraft and the Lessor's Estate as against the Lessee for the fiscal year ended December 31, 2010 have been prepared in accordance with International Financial Reporting Standards and fairly present the results of its operations for that period and its financial condition at December 31, 2010 and, in particular, to the extent required by International Financial Reporting Standards accurately disclose or reserve against all the liabilities (actual or contingent) of Lessee, and, to Lessee’s knowledge, after reasonable inquiry, there has been no material adverse change to the financial condition of Lessee since December 31, 2010, except as otherwise previously disclosed to Lessor in writingany third parties;
(j) all necessary returns have been timely delivered by Lessee the Lessor has received good and marketable title to the applicable taxation authorities for which Aircraft, free and clear of all Liens, except Permitted Liens of the failure to file could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time, Lessee is not in default in the payment of any Taxes shown to be payable on any such returns and no claim is being asserted with respect to Taxes that is not disclosed in the audited financial statements type referred to in clause (ib) above that if payable, could reasonably be expected to have a material adverse effect on and (d) of the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that timedefinition thereof;
(k) the financial and other information furnished by or on behalf of Lessee to Lessor and its Affiliates in writing does not, to Lessee’s knowledge, contain any untrue statement of a material fact or omit to state any material fact the omission of which makes the statements therein, in the light of the circumstances under which they were made, misleading, nor omits to disclose any material matter that has or could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry by Lessee;
(l) Lessee, under applicable law, is subject to private commercial law and suit, and neither Lessee nor its properties or assets have any right of immunity from suit or execution on the grounds of sovereignty in the United States;
(m) no Default or Event of Default exists and no Event of Loss, or event which with the passage of time would constitute an Event of Loss, exists;
(l) the Aircraft is in such condition so as to enable the airworthiness certificate of such Aircraft to be in good standing under the Transportation Code; the Aircraft has occurred been duly certificated by the FAA as to type and airworthiness; there is continuingin effect with respect to the Aircraft a current and valid airworthiness certificate issued by the FAA pursuant to the Transportation Code; and all records in respect of the Aircraft required by the Aeronautical Authority have been maintained in accordance in all material respects with the requirements of the Aeronautical Authority;
(m) neither the Lessee nor any subsidiary of the Lessee is an "investment company" or a company "controlled by an investment company" within the meaning of the Investment Company Act of 1940, as amended;
(n) there are no broker's or underwriter's fees payable on behalf of the Lessee has not granted toin connection with the transactions contemplated in the Operative Agreements, or registered in favor of, any person other than Lessor an “international interest,” “national interest,” “prospective international interest” those of the Lessee Advisor (as such terms are defined in the Cape Town ConventionSection 8.01(a)) or a de-registration and export request authorization with respect referred to the Airframe or any Enginein Article 8 hereof;
(o) assuming that no part the Lessee is not in default (after any applicable grace periods) in the performance of any material term or condition of the assets to be used by Lessor to acquire its interest in the Aircraft or any Lender to provide financing in respect of the Aircraft constitutes assets of an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, a “plan” as defined in Section 4975 of the Code which is subject to Section 4975 of the Code, an entity whose underlying assets include “plan assets” by reason of any such employee benefit plan’s or plan’s investment in such entity, or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is similar to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, the execution and delivery of this Agreement and the other Lessee’s Documents and the transactions contemplated hereby and thereby will be exempt from, or will not involve any transaction which is subject to, the prohibitions of either Section 406 of ERISA or Section 4975 of the Code and will not involve any transaction in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 of the CodePurchase Agreement; and
(p) to the best of Lessee's knowledge, Lessee has duly appointed and registered an officer is not in default under, or in violation of, any Applicable Law, the violation of Lessee with the International Registry an administrator which would give rise to act on behalf of Lessee as a transacting user entityMaterial Adverse Change to Lessee.
Appears in 1 contract
Lessee’s Representations and Warranties. The Lessee acknowledges that each of Lessor represents, warrants and the other Lessor Parties, has entered into this Agreement and the other Operative Documents in full reliance on representations and warranties by Lessee in this Clause 2.1; and Lessee now represents and warrants to Lessor that the following statements are on the date hereof, and on the Delivery Date will be, true and accuratecovenants that:
(aA) the Lessee (i) is a sociedad anónima promotora de inversiones de capital variable that is corporation duly incorporatedorganized, validly existing and in good standing under the laws of the, State of New York, (ii) has duly qualified and is authorized to do business and is in good standing as a foreign corporation in each jurisdiction where the United Mexican Statescharacter of its properties or the nature of its activities (including the leasing and operation of the Aircraft) make such qualification necessary, and (iii) has full the corporate power and authority to conduct carry on its business as presently conducted, conducted and to own or hold under lease its assets, to enter into and perform its obligations under the Lessee’s Documents and to consummate the transactions contemplated by the Lessee’s Documentsthis Lease;
(bB) Lessee’s organizational documents incorporate provisions that permitthe Lessee holds all licenses, and all necessary authorizations, approvals, consents, licensescertificates, permits and orders franchises from the appropriate agencies of the United States of America and/or all other governmental authorities having jurisdiction, necessary to authorize the Lessee to engage in air transport and registrations to carry on its business as presently conducted and to be conducted with any Government Entitythe Aircraft;
(C) the execution, delivery and performance of this Lease (have been duly and unconditionally obtained and are now in full force and effect that are required to authorize, Lessee to sign and deliver, and perform its obligations under and authorized by all necessary corporate action on the transactions contemplated by, part of the Lessee’s Documents, do not require any shareholder approval, or approval or consent of any trustee or holders of any indebtedness or obligations of the Lessee (except for approval or consent previously obtained) and do not and will not contravene any law, governmental rule, regulation or order binding on the Lessee or the articles of incorporation or bylaws of the Lessee or contravene the provisions of, or constitute a default under, or result in the creation of any Lien (other than as permitted under this Lease) upon the property of the Lessee under any indenture, mortgage, deed of trust, conditional sales contract, bank loan or credit agreement, contract or other agreement to which it may be a party or by which its property may he bound;
(cD) neither the execution and delivery by the Lessee of this Lease (including any Lease Supplements), nor the consummation of any of the transactions by the Lessee contemplated hereby requires the consent or approval of, the giving of notice to, or the registration with, or the taking of any other action in respect of, any Aeronautics Authority, or any other Federal or state governmental authority or agency, including any judicial body or any other person, entity or corporation, except for the registration and recordation of this Lease by the FAA;
(E) this Lease has been duly authorized, executed and delivered this Agreement by the Lessee and this Agreement constitutes, and the other Lessee’s Documents Lease Supplements when executed entered into and delivered by Lessee will constitute, legalvalid, valid enforceable and binding obligations of Lessee, enforceable the Lessee in accordance with their respective terms (except to the extent such enforceability may be limited by insolvency, moratorium, bankruptcy, reorganization or other laws affecting the rights of creditors generally)terms;
(dF) neither except as disclosed in Lessee's opinion of counsel required by Section 2.04(A)(4), there are no suits or proceedings pending or, to the execution and delivery knowledge of the Lessee’s Documents by , threatened against or affecting the Lessee nor the performance by in any court or before any regulatory commission, board or other administrative governmental agency, which if determined adversely to Lessee of any of the transactions contemplated herein and therein will: (i) contravene or constitute a violation or breach of or a default under any existing law or agreement by which Lessee or any of its assets is bound, any agreement to which it is a party or Lessee’s organizational documents; (ii) cause any limitation on Lessee or its assets or the powers of its directors or officers, whether imposed by or contained in Lessee’s organizational documents or any existing law, agreement or otherwise, to be exceeded; or (iii) result in the creation or imposition of, or oblige Lessee to create, any Lien (other than Permitted Liens) over its undertaking or any of its assets, rights or revenues;
(e) except for such filings, registrations and recordings as are specified under this Agreement and the other Lessee’s Documents, it is not necessary or advisable under the laws of the State of Registration or the Habitual Base in order to ensure the validity, effectiveness or enforceability of any Lessee’s Document or to protect the rights of Lessor in the Aircraft or any part thereof that any Lessee’s Document or any other instrument be filed, registered or recorded or that any registration or any other action be taken, and under such laws, the rights of Lessor in the Aircraft will have priority in all respects over the claims of all creditors of Lessee;
(f) the obligations of Lessee under the Lessee’s Documents are, or upon execution thereof by Lessee will be, direct, general and unconditional obligations of Lessee and rank, or will rank, at least pari passu with all other present and future unsecured and unsubordinated obligations (including contingent obligations) of Lessee save for obligations mandatorily preferred by law and not by reason of any Lien;
(g) no event has occurred that constitutes a contravention of, or default under, any agreement by which Lessee or any of its assets is bound or affected, and that could reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents;
(h) no litigation, arbitration or administrative proceeding that could (by itself or together with any other such proceedings or claims) reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents is (to Lessee’s knowledge) presently in progress or pending against Lessee or any of its assets;
(i) the unaudited financial statements of Lessee prepared by Lessee’s management for the fiscal year ended December 31, 2010 have been prepared in accordance with Mexican generally accepted accounting principles and practices (“GAAPP”), and when delivered, the audited financial statements of Lessee for the fiscal year ended December 31, 2010 have been prepared in accordance with International Financial Reporting Standards and fairly present the results of its operations for that period and its financial condition at December 31, 2010 and, in particular, to the extent required by International Financial Reporting Standards accurately disclose or reserve against all the liabilities (actual or contingent) of Lessee, and, to Lessee’s knowledge, after reasonable inquiry, there has been no material adverse change to the financial condition of Lessee since December 31, 2010, except as otherwise previously disclosed to Lessor in writing;
(j) all necessary returns have been timely delivered by Lessee to the applicable taxation authorities for which the failure to file could reasonably be expected to would have a material adverse effect on the financial condition or business of the Lessee or an adverse effect on Lessee’s the ability of the Lessee to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time, Lessee is not in default in the payment of any Taxes shown to be payable on any such returns and no claim is being asserted with respect to Taxes that is not disclosed in the audited financial statements referred to in clause (i) above that if payable, could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that timethis Lease;
(kG) except for the financial filing for registration and recordation of this Lease and the Lease Supplements with the FAA, no further filing or recording of this Lease or any Lease Supplement or of any other information furnished by or on behalf of Lessee to Lessor and its Affiliates in writing does not, to Lessee’s knowledge, contain any untrue statement of a material fact or omit to state any material fact the omission of which makes the statements therein, in the light of the circumstances under which they were made, misleading, nor omits to disclose any material matter that has or could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations document is necessary under the Lessee’s Documents Federal Aviation Act, or under the laws of any other jurisdiction in order to fully protect, establish and perfect in all expressions of expectationapplicable jurisdictions Lessor's title to, intentionand Lessor's leasehold interest in, belief the Aircraft as against Lessee and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry by Lesseeany third parties;
(lH) Lesseefor the purposes of Section 501 of the Federal Aviation Act, under applicable law, the Lessee is subject to private commercial law and suit, and neither Lessee nor its properties or assets have any right a "citizen of immunity from suit or execution on the grounds of sovereignty in the United States;
(m) no Default or Event of Default has occurred and " as defined is continuing;
(n) Lessee has not granted to, or registered in favor of, any person other than Lessor an “international interest,” “national interest,” “prospective international interest” (as such terms are defined in the Cape Town Convention) or a de-registration and export request authorization with respect to the Airframe or any Engine;
(o) assuming that no part Section 101 of the assets to be used by Lessor to acquire its interest in the Aircraft or any Lender to provide financing in respect of the Aircraft constitutes assets of an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, a “plan” as defined in Section 4975 of the Code which is subject to Section 4975 of the Code, an entity whose underlying assets include “plan assets” by reason of any such employee benefit plan’s or plan’s investment in such entity, or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is similar to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, the execution and delivery of this Agreement Federal Aviation Act and the other Lessee’s Documents and the transactions contemplated hereby and thereby will be exempt from, or will not involve any transaction which is subject to, the prohibitions of either Section 406 of ERISA or Section 4975 of the Code and will not involve any transaction in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed regulations pursuant to Section 4975 of the Code; and
(p) Lessee has duly appointed and registered an officer of Lessee with the International Registry an administrator to act on behalf of Lessee as a transacting user entity.such Section. ARTICLE 6 POSSESSION, USE, LAWFUL INSURED OPERATIONS, MAINTENANCE, REGISTRATION AND INSIGNIA
Appears in 1 contract
Lessee’s Representations and Warranties. Lessee acknowledges that each of Lessor and the other Lessor Parties, has entered into this Agreement and the other Operative Documents in full reliance on representations and warranties by Lessee in this Clause 2.1; and Lessee now represents and --------------------------------------- warrants to Lessor that the following statements are on the date hereof, and on the Delivery Date will be, true and accurate:
that: (ai) Lessee is a sociedad anónima promotora de inversiones de capital variable that is corporation duly incorporated, validly organized and existing and in good standing under the laws of the United Mexican States, State of Illinois and has full corporate power is duly qualified to do business wherever necessary to carry on its present business and authority operations and to conduct its business as presently conducted, to own or hold under lease its assets, to enter into and perform its obligations under this Lease; (ii) this Lease, (A) has been duly authorized by all necessary corporate action on the part of Lessee and does not require any stockholder approval, (B) does not contravene any law binding on Lessee or contravene Lessee’s Documents 's certificate of incorporation or by-laws and (C) does not constitute a violation by Lessee of, or result in any default by Lessee under, any indenture, credit agreement or other contractual agreement to consummate which Lessee is a party or by which it is bound; (iii) neither the transactions execution and delivery by Lessee of this Lease nor any of the actions contemplated to be taken by the Lessee’s Documents;
Lessee at any time hereunder or thereunder require the consent or approval of, or the giving of notice to, any federal, state or foreign governmental authority, except with respect to appropriate action by (bA) Lessee’s organizational documents incorporate provisions that permitthe Securities and Exchange Commission under the Public Utility Holding Company Act of 1935 and (B) by the Illinois Commerce Commission; and appropriate actions (sufficient to permit Lessee to engage, without further regulatory authorization, in any and all necessary authorizations, approvals, consents, licenses, permits and orders of and registrations with any Government Entity, transactions which this Lease contemplates may be undertaken by Lessee) have been duly and unconditionally obtained taken by such agencies and are now in full force and effect that are required to authorize, Lessee to sign and deliver, and perform its obligations under and the transactions contemplated by, the Lessee’s Documents;
effect; (civ) Lessee has duly authorized, executed and delivered this Agreement and this Agreement constitutes, and the other Lessee’s Documents when executed and delivered by Lessee will constitute, Lease constitutes legal, valid and binding obligations of Lessee, enforceable against Lessee, in accordance with their the respective terms (except hereof and thereof, subject to the extent such enforceability may be limited by all applicable bankruptcy, insolvency, moratoriumreorganization, bankruptcy, reorganization moratorium or other laws affecting the rights of creditors generally);
(d) neither the execution and delivery of the Lessee’s Documents by Lessee nor the performance by Lessee of any of the transactions contemplated herein lessors generally and therein will: (i) contravene or constitute a violation or breach of or a default under any existing law or agreement by which Lessee or any of its assets is bound, any agreement to which it is a party or Lessee’s organizational documents; (ii) cause any limitation on Lessee or its assets or the powers of its directors or officers, whether imposed by or contained in Lessee’s organizational documents or any existing law, agreement or otherwise, to be exceeded; or (iii) result in the creation or imposition of, or oblige Lessee to create, any Lien (other than Permitted Liens) over its undertaking or any of its assets, rights or revenues;
(e) except for such filings, registrations and recordings as are specified under this Agreement and the other Lessee’s Documents, it is not necessary or advisable under the laws of the State of Registration or the Habitual Base in order to ensure the validity, effectiveness or enforceability of any Lessee’s Document or to protect the rights of Lessor in the Aircraft or any part thereof that any Lessee’s Document or any other instrument be filed, registered or recorded or that any registration or any other action be taken, and under such laws, the rights of Lessor in the Aircraft will have priority in all respects over the claims of all creditors of Lessee;
(f) the obligations of Lessee under the Lessee’s Documents are, or upon execution thereof by Lessee will be, direct, general and unconditional obligations of Lessee and rank, or will rank, at least pari passu with all other present and future unsecured and unsubordinated obligations (including contingent obligations) of Lessee save for obligations mandatorily preferred by law and not by reason of any Lien;
(g) no event has occurred that constitutes a contravention of, or default under, any agreement by which Lessee or any of its assets is bound or affected, and that could reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents;
(h) no litigation, arbitration or administrative proceeding that could (by itself or together with any other such proceedings or claims) reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents is (to Lessee’s knowledge) presently in progress or pending against Lessee or any of its assets;
(i) the unaudited financial statements of Lessee prepared by Lessee’s management for the fiscal year ended December 31, 2010 have been prepared in accordance with Mexican generally accepted accounting principles and practices (“GAAPP”), and when delivered, the audited financial statements of Lessee for the fiscal year ended December 31, 2010 have been prepared in accordance with International Financial Reporting Standards and fairly present the results of its operations for that period and its financial condition at December 31, 2010 and, in particular, to the extent required by International Financial Reporting Standards accurately disclose or reserve against all the liabilities (actual or contingent) of Lessee, and, to Lessee’s knowledge, after reasonable inquiry, there has been no material adverse change to the financial condition of Lessee since December 31, 2010, except as otherwise previously disclosed to Lessor in writing;
(j) all necessary returns have been timely delivered by Lessee to the applicable taxation authorities for which the failure to file could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time, Lessee is not in default in the payment of any Taxes shown to be payable on any such returns and no claim is being asserted with respect to Taxes that is not disclosed in the audited financial statements referred to in clause (i) above that if payable, could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time;
(k) the financial and other information furnished by or on behalf of Lessee to Lessor and its Affiliates in writing does not, to Lessee’s knowledge, contain any untrue statement of a material fact or omit to state any material fact the omission of which makes the statements therein, in the light of the circumstances under which they were made, misleading, nor omits to disclose any material matter that has or could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry by Lessee;
(l) Lessee, under applicable law, is subject to private commercial law and suitgeneral equitable principles which may limit the right to obtain the remedy of specific performance, and neither Lessee nor its properties hereunder or assets have any right of immunity from suit or execution on the grounds of sovereignty in the United Statesthereunder;
(m) no Default or Event of Default has occurred and is continuing;
(n) Lessee has not granted to, or registered in favor of, any person other than Lessor an “international interest,” “national interest,” “prospective international interest” (as such terms are defined in the Cape Town Convention) or a de-registration and export request authorization with respect to the Airframe or any Engine;
(o) assuming that no part of the assets to be used by Lessor to acquire its interest in the Aircraft or any Lender to provide financing in respect of the Aircraft constitutes assets of an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, a “plan” as defined in Section 4975 of the Code which is subject to Section 4975 of the Code, an entity whose underlying assets include “plan assets” by reason of any such employee benefit plan’s or plan’s investment in such entity, or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is similar to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, the execution and delivery of this Agreement and the other Lessee’s Documents and the transactions contemplated hereby and thereby will be exempt from, or will not involve any transaction which is subject to, the prohibitions of either Section 406 of ERISA or Section 4975 of the Code and will not involve any transaction in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 of the Code; and
(p) Lessee has duly appointed and registered an officer of Lessee with the International Registry an administrator to act on behalf of Lessee as a transacting user entity.
Appears in 1 contract
Lessee’s Representations and Warranties. Lessee acknowledges that each of Lessor and the other Lessor Parties, has entered into this Agreement and the other Operative Documents in full reliance on representations and warranties by Lessee in this Clause 2.1; and Lessee now represents and warrants (and if reasonably requested by Lessor, promptly will provide supporting documents to Lessor the effect and an opinion of counsel substantially in the form requested by Lessor) that the following statements are on as of the date hereofthat Lessee signs this Master Lease, as of any date that Lessor makes a payment to a Vendor prior to the date all Equipment has been accepted for lease hereunder, as of each date that any Equipment is accepted for lease hereunder and on as of each Lease Commencement Date pursuant to a Rental Schedule hereunder: (i) all items of the Delivery Date will beEquipment are new and unused as of the Lease Commencement Date, true and accurate:
unless otherwise specified in the applicable Rental Schedule in which event the specified items of the Equipment shall have been delivered new to Lessee by their suppliers not more than 90 days prior to their Lease Term Commencement; (aii) Lessee is a sociedad anónima promotora de inversiones de capital variable that is duly incorporatedorganized, validly existing and in good standing under the laws of the United Mexican Statesjurisdiction of its organization, and is qualified and in good standing to do business wherever necessary to carry on its present business and operations, including the jurisdictions where the Equipment is or will be located; (iii) Lessee has full corporate the power and authority to conduct its business as presently conducted, to own or hold under lease its assets, to enter into this Lease and the other instruments and documents executed by Lessee in connection herewith (together with this Lease, the "Transactional Documents") and to pay and perform its obligations under this Lease and the Lessee’s other Transactional Documents; (iv) this Lease and the other Transactional Documents and to consummate the transactions contemplated by the Lessee’s Documents;
(b) Lessee’s organizational documents incorporate provisions that permit, and all necessary authorizations, approvals, consents, licenses, permits and orders of and registrations with any Government Entity, have been duly and unconditionally obtained and are now in full force and effect that are required to authorize, Lessee to sign and deliver, and perform its obligations under and the transactions contemplated by, the Lessee’s Documents;
(c) Lessee has duly authorized, executed and delivered this Agreement and this Agreement constitutesby Lessee, and constitute the other Lessee’s Documents when executed and delivered by Lessee will constitutevalid, legal, valid legal and binding obligations of Lessee, Lessee enforceable in accordance with their respective terms terms; (except v) no vote or consent of, or notice to, the holders of any class of stock of Lessee is required, or if required, such vote or consent has been obtained or given, to authorize the extent such enforceability may be limited execution, delivery and performance of this Lease and the other Transactional Documents by insolvency, moratorium, bankruptcy, reorganization or other laws affecting the rights of creditors generally);
Lessee; (dvi) neither the execution and delivery by Lessee of this Lease or the other Transactional Documents, nor the consummation by Lessee of the Lessee’s Documents transactions contemplated hereby or thereby, nor compliance by Lessee nor with the performance by Lessee provisions hereof or thereof, conflicts with or results in a breach of any of the transactions contemplated herein and therein will: (i) contravene provisions of any Certificate of Incorporation or constitute By-laws or partnership or trust agreement or certificate of Lessee, or of any applicable law, judgment, order, writ, injunction, decree, award, rule or regulation of any court, administrative agency or other governmental authority, or of any indenture, mortgage, deed of trust, other agreement or instrument of any nature to which Lessee is a violation party or breach of by which it or its property is bound or affected or pursuant to which it is constituted, or constitutes a default under any existing law thereof or agreement by which Lessee or any of its assets is bound, any agreement to which it is a party or Lessee’s organizational documents; (ii) cause any limitation on Lessee or its assets or the powers of its directors or officers, whether imposed by or contained in Lessee’s organizational documents or any existing law, agreement or otherwise, to be exceeded; or (iii) will result in the creation of any lien, charge, security interest or imposition ofother encumbrance upon any of the Equipment, other than the interests therein of Lessor or any Assignee (as hereinafter defined), or oblige upon any other right or property of Lessee or will in any manner adversely affect Lessor's or any Assignee's right, title and interest in any of the Equipment; (vii) no consent, approval, withholding of objection or other authorization of or by any court, administrative agency, other governmental authority or any other Person is required, except such consents, approvals or other authorizations which have been duly obtained and are in full force and effect and copies of which have been furnished Lessor, in connection with the execution, delivery or performance by Lessee, or the consummation by Lessee, of the transactions contemplated by this Lease and the other Transactional Documents; (viii) there are no actions, suits or proceedings pending, or, to the knowledge of Lessee, threatened, in any court or before any administrative agency or other governmental authority against or affecting Lessee, which, if adversely decided would or could, individually or in the aggregate, materially and adversely affect the financial or other condition, business, operations, properties, assets or prospects of Lessee or the ability of Lessee to create, any Lien (other than Permitted Liens) over its undertaking or perform any of its assetsobligations under this Lease or under the other Transactional Documents, rights or revenues;
(e) except for any such filingsactions, registrations and recordings as are specified under this Agreement and suits or proceedings that Lessee has described in writing to Lessor; (ix) no Event of Default or event or condition which upon the other Lessee’s Documents, it is not necessary or advisable under the laws passage of the State of Registration or the Habitual Base in order to ensure the validity, effectiveness or enforceability of any Lessee’s Document or to protect the rights of Lessor in the Aircraft or any part thereof that any Lessee’s Document or any other instrument be filed, registered or recorded or that any registration or any other action be taken, and under such lawstime, the rights giving of Lessor in the Aircraft will have priority in all respects over the claims of all creditors of Lessee;
(f) the obligations of Lessee under the Lessee’s Documents arenotice, or upon execution thereof by Lessee will beboth, directwould constitute an Event of Default, general and unconditional obligations of Lessee and rank, exists or will rank, at least pari passu with all other present and future unsecured and unsubordinated obligations is continuing; (including contingent obligationsx) of Lessee save for obligations mandatorily preferred by law and not by reason of any Lien;
(g) no event has occurred that constitutes a contravention of, or default under, any agreement by which Lessee or any of its assets is bound or affected, and that could reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents;
(h) no litigation, arbitration or administrative proceeding that could (by itself or together with any other such proceedings or claims) reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents is (to Lessee’s knowledge) presently in progress or pending against Lessee or any of its assets;
(i) the unaudited financial statements of Lessee prepared by Lessee’s management for the fiscal year ended December 31, 2010 have been prepared in accordance with Mexican generally accepted accounting principles and practices (“GAAPP”), and when delivered, the audited financial statements of Lessee for the fiscal year ended December 31, 2010 have been prepared in accordance with International Financial Reporting Standards and fairly present the results of its operations for that period and its financial condition at December 31, 2010 and, in particular, to the extent required by International Financial Reporting Standards accurately disclose or reserve against all the liabilities (actual or contingent) of Lessee, and, to Lessee’s knowledge, after reasonable inquiry, there has been no material adverse change or threatened change in Lessee's, any Guarantor's or any Manufacturer's financial or other condition, business, operations, properties, assets or prospects since the date of Lessee's, such Guarantor's or Manufacturer's most recent financial statements prior to the date of this Master Lease, or from the written information that has been supplied to Lessor by Lessee, any Guarantor or such Manufacturer, (xi) Lessee possesses any and all authorizations, certifications and licenses which are or may be required to use and operate the Equipment; (xii) the actual Acquisition Cost to the Company's knowledge pursuant to the applicable Rental Schedule of each item of the Equipment does not exceed the fair and usual price for like quantity purchases of such item and reflects all discounts, rebates and allowances for the Equipment given to Lessee, any Guarantor or any affiliate of Lessee or any Guarantor by any Vendor or other Person including, without limitation, discounts for advertising, prompt payment, testing or other services; (xiii) all information supplied to Lessor by Lessee or any Guarantor is correct and does not omit any statement necessary to make the information supplied not misleading; and (xiv) the financial statements of Lessee and any Guarantor have been prepared in accordance with generally accepted accounting principles consistently applied and accurately and completely present in all material respects the financial condition and the results of operations of Lessee since December 31, 2010, and such Guarantors at the dates of and for the periods covered by such statements except as otherwise previously disclosed to Lessor in writing;
(j) all necessary returns have been timely delivered by Lessee to that the applicable taxation authorities for which the failure to file could reasonably be expected to have a material adverse effect on the quarterly interim financial condition statements of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time, Lessee is do not in default in the payment of any Taxes shown to be payable on any such returns and no claim is being asserted with respect to Taxes that is not disclosed in the audited financial statements referred to in clause (i) above that if payable, could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time;
(k) the financial and other information furnished by or on behalf of Lessee to Lessor and its Affiliates in writing does not, to Lessee’s knowledge, contain any untrue statement of a material fact or omit to state any material fact the omission of which makes the statements therein, in the light of the circumstances under which they were made, misleading, nor omits to disclose any material matter that has or could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry by Lessee;
(l) Lessee, under applicable law, is subject to private commercial law and suit, and neither Lessee nor its properties or assets have any right of immunity from suit or execution on the grounds of sovereignty in the United States;
(m) no Default or Event of Default has occurred and is continuing;
(n) Lessee has not granted to, or registered in favor of, any person other than Lessor an “international interest,” “national interest,” “prospective international interest” (as such terms are defined in the Cape Town Convention) or a de-registration and export request authorization with respect to the Airframe or any Engine;
(o) assuming that no part of the assets to be used by Lessor to acquire its interest in the Aircraft or any Lender to provide financing in respect of the Aircraft constitutes assets of an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, a “plan” as defined in Section 4975 of the Code which is subject to Section 4975 of the Code, an entity whose underlying assets include “plan assets” by reason of any such employee benefit plan’s or plan’s investment in such entity, or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is similar to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, the execution and delivery of this Agreement and the other Lessee’s Documents and the transactions contemplated hereby and thereby will be exempt from, or will not involve any transaction which is subject to, the prohibitions of either Section 406 of ERISA or Section 4975 of the Code and will not involve any transaction in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 of the Code; and
(p) Lessee has duly appointed and registered an officer of Lessee with the International Registry an administrator to act on behalf of Lessee as a transacting user entityfull footnote disclosure.
Appears in 1 contract
Lessee’s Representations and Warranties. Lessee acknowledges that each of Lessor and hereby makes the other Lessor Parties, has entered into this Agreement and the other Operative Documents in full reliance on following representations and warranties by Lessee in this Clause 2.1; and Lessee now represents and warrants to Lessor that the following statements are on as of the date hereof, hereof which representations and on warranties shall survive the Delivery Date will be, true execution and accuratedelivery of this Lease:
(ai) Lessee is a sociedad anónima promotora de inversiones de capital variable that is corporation duly incorporatedorganized, validly and existing and in good standing under the laws Laws of the United Mexican States, State of California and has full corporate the requisite power and authority to conduct carry on its business as presently conducted, conducted and to own or hold under lease its assets, to enter into and perform its obligations under this Lease;
(ii) this Lease has been duly authorized by all necessary action on the Lessee’s Documents part of Lessee and to consummate does not require any approval of the shareholders of Lessee (or if such approval is required, such approval has been obtained), and neither the execution and delivery hereof nor the consummation of the transactions contemplated hereby nor compliance by Lessee with any of the terms and provisions hereof will contravene any Law applicable to Lessee or result in any breach of, or constitute any default under (other than a breach or default that would not result in a Material Adverse Change to Lessee’s Documents), or result in the creation of any Lien (other than as permitted under this Lease), on any property of Lessee under, any credit agreement or instrument corporate charter or by-law or other material agreement or instrument to which Lessee is a party or by which Lessee or its properties or assets are bound or affected in any material respect;
(biii) Lessee’s organizational documents incorporate provisions that permitLessee has received every consent, approval or authorization of, and has given every notice to, each Governmental Entity having jurisdiction with respect to the execution, delivery or performance of this Lease (including all necessary authorizationsmonetary and other obligations hereunder) that is required for Lessee to execute and deliver this Lease, approvals, consents, licenses, permits and orders of to perform the transactions contemplated hereby and registrations with any Government Entity, each such consent approval or authorization is valid and effective and has not been revoked;
(iv) this Lease and the Lease Supplement have been duly and unconditionally obtained and are now in full force and effect that are required to authorize, Lessee to sign and deliver, and perform its obligations under and the transactions contemplated by, the Lessee’s Documents;
(c) Lessee has duly authorized, executed and delivered this Agreement and this Agreement constitutes, and the other Lessee’s Documents when executed and delivered by Lessee will constituteLessee, and, assuming the due authorization, execution and delivery thereof by the Lessor, the Lease and the Lease Supplement constitute legal, valid and binding obligations of Lessee, enforceable against Lessee in accordance with their respective terms (terms, except to the extent such enforceability as enforcement thereof may be limited by applicable bankruptcy, insolvency, moratoriumreorganization, bankruptcyreceivership, reorganization moratorium or other similar laws affecting the enforcement of creditors' rights generally, and general principles of creditors generallyequity (regardless of whether such enforceability is considered in a proceeding in equity or at law);
(dv) neither Lessee's chief executive office is located at 100 Oceangate, 15th Floor, Long Beach, CA 90802; the execution records xx Xxxxxx xxxxxxxxxx xxx Xxxxxxxx xxx xxxxxxxxed at such chief executive office and delivery of the Lessee’s Documents by Lessee nor the performance by Lessee of any of the transactions contemplated herein and therein will: (i) contravene or constitute a violation or breach of or a default under any existing law or agreement by which Lessee or any of its assets is bound, any agreement to which it is a party or Lessee’s organizational documents; (ii) cause any limitation on Lessee or its assets or the powers of its directors or officers, whether imposed by or contained in Lessee’s organizational documents or any existing law, agreement or otherwise, to be exceeded; or (iii) result in the creation or imposition of, or oblige Lessee to create, any Lien (other than Permitted Liens) over its undertaking or any of its assets, rights or revenues;
(e) except for such filings, registrations and recordings as are specified under this Agreement and the other Lessee’s Documents, it is not necessary or advisable incorporated under the laws of the State of Registration California and its organizational identification number is C1483679;
(vi) Lessee is a Citizen of the United States;
(vii) except for the filing for recordation of this Lease and the Lease Supplement with the FAA, the filing of any Uniform Commercial Code financing statements required (and continuation statements at periodic intervals), the taking of possession and retention of the original counterparts of the Lease and Lease Supplement by Lessor and the placing on the Aircraft and on each Engine of the plates containing the legends referred to in Section 6(a)(iii) hereof, no further filing or recording of this Lease or of any other document (including any financing statement under Article 9 of the Habitual Base Uniform Commercial Code) and no further action, is necessary or desirable under the laws of the United States of America or any state in order to (A) fully establish Lessor's title to, and interest in, and property in rights with respect to the Aircraft as against Lessee or any third party and to ensure that under all such laws the validity, effectiveness or enforceability of any Lessee’s Document or to protect the property rights of Lessor in the Aircraft or any part thereof that any Lessee’s Document or any other instrument be filed, registered or recorded or that any registration or any other action be taken, and under such laws, the rights of Lessor in the Aircraft therein will have priority in all respects over the claims of all creditors of Lessee, or (B) ensure the validity, effectiveness and enforceability of this Lease;
(fviii) as of the obligations date hereof, Lessee does not hold any contract or other obligation to operate the Aircraft to any of Lessee the countries designated under the Lessee’s Documents areUnited States Foreign Asset Control Regulations (31 C.F.R. Parts 500-599), or upon execution thereof by Lessee will beincluding, directas of the date hereof, general North Korea, Cambodia, North Vietnam and unconditional obligations South Vietnam, excexx xx xxx xxxxxx xxxx Xxxxxx xxx xxxained written permission of Lessee and rankthe United States government, or will rank, at least pari passu with all other present and future unsecured and unsubordinated obligations (including contingent obligations) copies of Lessee save for obligations mandatorily preferred by law and not by reason of any Lienwhich have been provided to Lessor;
(gix) no event has occurred that constitutes a contravention ofLessee holds all licenses, or default underpermits, any agreement by which Lessee or any of approvals, certificates, etc. required to conduct its assets is bound or affected, business and that could reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under lease and operate the Lessee’s Documents;
(h) no litigation, arbitration or administrative proceeding that could (by itself or together with any other such proceedings or claims) reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents is (to Lessee’s knowledge) presently in progress or pending against Lessee or any of its assets;
(i) the unaudited financial statements of Lessee prepared by Lessee’s management for the fiscal year ended December 31, 2010 have been prepared in accordance with Mexican generally accepted accounting principles and practices (“GAAPP”), and when delivered, the audited financial statements of Lessee for the fiscal year ended December 31, 2010 have been prepared in accordance with International Financial Reporting Standards and fairly present the results of its operations for that period and its financial condition at December 31, 2010 and, in particular, to the extent required by International Financial Reporting Standards accurately disclose or reserve against all the liabilities (actual or contingent) of Lessee, and, to Lessee’s knowledge, after reasonable inquiry, there has been no material adverse change to the financial condition of Lessee since December 31, 2010Aircraft, except as otherwise previously disclosed to Lessor in writing;
(j) all necessary returns have been timely delivered by Lessee to the applicable taxation authorities for which where the failure to file could reasonably be expected so hold such licenses, permits, approvals and certificates would not give rise to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time, Lessee is not in default in the payment of any Taxes shown to be payable on any such returns and no claim is being asserted with respect to Taxes that is not disclosed in the audited financial statements referred to in clause (i) above that if payable, could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time;
(k) the financial and other information furnished by or on behalf of Lessee to Lessor and its Affiliates in writing does not, Material Adverse Change to Lessee’s knowledge, contain any untrue statement of a material fact or omit to state any material fact the omission of which makes the statements therein, in the light of the circumstances under which they were made, misleading, nor omits to disclose any material matter that has or could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry by Lessee;
(l) Lessee, under applicable law, is subject to private commercial law and suit, and neither Lessee nor its properties or assets have any right of immunity from suit or execution on the grounds of sovereignty in the United States;
(m) no Default or Event of Default has occurred and is continuing;
(n) Lessee has not granted to, or registered in favor of, any person other than Lessor an “international interest,” “national interest,” “prospective international interest” (as such terms are defined in the Cape Town Convention) or a de-registration and export request authorization with respect to the Airframe or any Engine;
(o) assuming that no part of the assets to be used by Lessor to acquire its interest in the Aircraft or any Lender to provide financing in respect of the Aircraft constitutes assets of an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, a “plan” as defined in Section 4975 of the Code which is subject to Section 4975 of the Code, an entity whose underlying assets include “plan assets” by reason of any such employee benefit plan’s or plan’s investment in such entity, or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is similar to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, the execution and delivery of this Agreement and the other Lessee’s Documents and the transactions contemplated hereby and thereby will be exempt from, or will not involve any transaction which is subject to, the prohibitions of either Section 406 of ERISA or Section 4975 of the Code and will not involve any transaction in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 of the Code; and
(p) Lessee has duly appointed and registered an officer of Lessee with the International Registry an administrator to act on behalf of Lessee as a transacting user entity.
Appears in 1 contract
Samples: Aircraft Lease Agreement (Atlas Air Worldwide Holdings Inc)
Lessee’s Representations and Warranties. Lessee acknowledges that each of Lessor and the other Lessor Parties, has entered into this Agreement and the other Operative Documents in full reliance on representations and warranties by Lessee in this Clause 2.1; and Lessee now represents and warrants to Lessor that the following statements are on the date hereof, of the Aircraft Lease Agreement and again on the Delivery Date will be, true and accuratethat:
(1) Lessee (a) Lessee is a sociedad anónima promotora de inversiones de capital variable that is duly incorporated, validly existing and in good standing incorporated under the laws Laws of the United Mexican States, Lessee Jurisdiction and (b) has full the corporate power and authority to conduct own its assets wherever located or used and to carry on its business as presently conducted, to own or hold under lease its assets, it is now being conducted and to enter into and perform its obligations under each Operative Document to which it is a party; the Lessee’s execution and delivery by Lessee of the Operative Documents and to consummate the transactions contemplated by the Lessee’s Documents;
(b) Lessee’s organizational documents incorporate provisions that permitwhich it is a party, and all necessary authorizations, approvals, consents, licenses, permits and orders the performance of and registrations with any Government Entityits obligations thereunder, have been (as and when delivered by Lessee) duly authorized by all necessary corporate action on its part. Such Operative Documents each have been (as and unconditionally obtained and are now in full force and effect that are required to authorize, Lessee to sign and deliver, and perform its obligations under and the transactions contemplated by, the Lessee’s Documents;
(cwhen delivered by Xxxxxx) Lessee has duly authorized, executed and delivered this Agreement and this Agreement constitutes, and the other Lessee’s Documents when executed and delivered by Lessee will constitute, it and each constitutes legal, valid and binding obligations of Lessee, enforceable against it in accordance with their respective terms (its terms, except to the extent as such enforceability may be limited by bankruptcy, insolvency, moratorium, bankruptcy, reorganization or and other laws of general application affecting the rights enforcement of creditors generally);rights and general principles of equity.
(d2) Lessee holds (or will on the Delivery Date hold) all Authorizations necessary to (a) permit it to engage in commercial air service as presently conducted, (b) permit its execution and delivery of each Operative Document to which it is a party and the performance of its obligations LATAM Shared Terms 5 thereunder and (c) permit it to operate the Aircraft in compliance with all Laws applicable to Lessee.
(3) Lessee is in compliance with all Laws applicable to Lessee in respect of aircraft maintenance, training and operation and neither the execution and delivery of the any Operative Document by Lessee’s Documents by Lessee , nor the performance by Lessee of its obligations thereunder, contravenes any of the transactions contemplated herein and therein will: (i) contravene provisions of its constitutional documents or constitute a violation any Law applicable to it or breach any of its assets or conflicts with or results in a default under any existing law or agreement by document which is binding on Lessee or any of its assets assets.
(4) Lessee is bound, any agreement subject to civil and commercial Law with respect to its obligations under each Operative Document to which it is a party or Lessee’s organizational documents; (ii) cause any limitation on Lessee or its assets or the powers of its directors or officers, whether imposed by or contained in Lessee’s organizational documents or any existing law, agreement or otherwise, to be exceeded; or (iii) result in the creation or imposition of, or oblige Lessee to create, any Lien (other than Permitted Liens) over its undertaking or and neither it nor any of its assets, rights or revenues;assets is entitled to any right of immunity and the entry into and performance of each such Operative Document constitute its private and commercial acts.
(e5) except for such filings, registrations and recordings as are specified under this Agreement and the other Lessee’s Documents, it is not necessary or advisable under the laws of the State of Registration or the Habitual Base in order to ensure the validity, effectiveness or enforceability of any Lessee’s Document or to protect the rights of Lessor in the Aircraft or any part thereof that any Lessee’s Document or any other instrument be filed, registered or recorded or that any registration or any other action be taken, and under such laws, the rights of Lessor in the Aircraft will have priority in all respects over the claims of all creditors of Lessee;
(f) the The obligations of Lessee under the Lessee’s Operative Documents are, or upon execution thereof by Lessee will be, direct, general and unconditional obligations of Lessee and rank, or will rank, to which it is party rank at least pari passu with all other present and future unsecured and unsubordinated obligations (including contingent obligations) of Lessee save for Lessee, with the exception of such obligations as are mandatorily preferred by law Xxx and not by reason virtue of any Lien;contract.
(g6) Except for the registrations, recordations and filings described in Section 7 (including, without limitation, Section 7.3) hereof, Section 6.2 of the Aircraft Lease Agreement, Section 4 of Part II of Schedule 1 to the Aircraft Lease Agreement and Schedule 4 to the Aircraft Lease Agreement, each of which will be duly made and effected by Lessee as and when required, no event has occurred that constitutes further action, including the registration, recordation or filing of any instrument or document, is necessary under the Laws of the Lessee Jurisdiction or the State of Registration (a) in order for the Aircraft Lease Agreement to constitute a contravention ofvalid and enforceable lease of record relating to the Aircraft, (b) to authorize or default under, any agreement by which permit Lessee or any of its assets is bound or affected, and that could reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under each Operative Document to which it is a party, (c) to fully protect, establish, perfect and preserve Owner’s and Lessor’s rights and interests in the Lessee’s Documents;Aircraft and the Operative Documents as against Lessee and otherwise or (d) to make each Operative Document admissible in evidence in the Lessee Jurisdiction or the State of Registration.
(h7) There are no litigationpending or, to Xxxxxx’s knowledge, threatened actions or proceedings before any court, arbitration or administrative proceeding that could (by itself agency in respect of the Aircraft Lease Agreement or together with any other such proceedings Operative Document or claims) reasonably be expected to have a material adverse effect on Lessee’s ability to observe the Aircraft or perform its obligations under the Lessee’s Documents is (to Lessee’s knowledge) presently in progress or pending against Lessee or any of its assets;
(i) the unaudited financial statements of Lessee prepared by Lessee’s management for the fiscal year ended December 31, 2010 have been prepared in accordance with Mexican generally accepted accounting principles and practices (“GAAPP”), and when delivered, the audited financial statements of Lessee for the fiscal year ended December 31, 2010 have been prepared in accordance with International Financial Reporting Standards and fairly present the results of its operations for that period and its financial condition at December 31, 2010 and, in particular, to the extent required by International Financial Reporting Standards accurately disclose or reserve against all the liabilities (actual or contingent) of Lessee, and, to Lessee’s knowledge, after reasonable inquiry, there has been no material adverse change to the financial condition of Lessee since December 31, 2010, except as otherwise previously disclosed to Lessor in writing;
(j) all necessary returns have been timely delivered performance by Lessee to the applicable taxation authorities for which the failure to file could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time, Lessee any Operative Document to which it is not in default in the payment of any Taxes shown to be payable on any such returns and no claim is being asserted with respect to Taxes that is not disclosed in the audited financial statements referred to in clause (i) above that if payable, could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents, taking into account all other obligations that Lessee must observe or perform at that time;party.
(k) 8) Each Operative Document and the financial and other information furnished by or on behalf of Lessee to Lessor and its Affiliates Xxxxxx in writing does not, to Lessee’s knowledge, in connection with the Aircraft Lease Agreement or any other Operative Document do not contain any untrue statement of a material fact or omit to state any material fact facts, the omission of which makes the statements therein, in the light of the circumstances under which they were made, misleading, nor omits to disclose misleading in any material matter that has or could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents respect, and all expressions of expectation, intentionimpression, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry inquiry by Lessee;
(l) Lessee, under applicable law, is subject to private commercial law and suit, and neither Lessee nor its properties or assets have any right of immunity from suit or execution on the grounds of sovereignty in the United States;
(m) no Default or Event of Default has occurred and is continuing;
(n) Lessee has not granted to, or registered in favor of, any person other than Lessor an “international interest,” “national interest,” “prospective international interest” (as such terms are defined in the Cape Town Convention) or a de-registration and export request authorization with respect to the Airframe or any Engine;
(o) assuming that no part of the assets to be used by Lessor to acquire its interest in the Aircraft or any Lender to provide financing in respect of the Aircraft constitutes assets of an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, a “plan” as defined in Section 4975 of the Code which is subject to Section 4975 of the Code, an entity whose underlying assets include “plan assets” by reason of any such employee benefit plan’s or plan’s investment in such entity, or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is similar to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, the execution and delivery of this Agreement and the other Lessee’s Documents and the transactions contemplated hereby and thereby will be exempt from, or will not involve any transaction which is subject to, the prohibitions of either Section 406 of ERISA or Section 4975 of the Code and will not involve any transaction in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 of the Code; and
(p) Lessee has duly appointed and registered an officer of Lessee with the International Registry an administrator to act on behalf of Lessee as a transacting user entityXxxxxx.
Appears in 1 contract
Lessee’s Representations and Warranties. Lessee acknowledges that each of Lessor and hereby makes the other Lessor Parties, has entered into this Agreement and the other Operative Documents in full reliance on ------------------------------------------ following representations and warranties by Lessee in this Clause 2.1; and Lessee now represents and warrants to Lessor that the following statements are on the date hereof, and on the Delivery Date will be, true and accuratewarranties:
(a) Lessee is a sociedad anónima promotora de inversiones de capital variable that is corporation duly incorporated, organized and validly existing and in good standing under pursuant to the laws of the State of Delaware and is duly qualified to do business as a foreign corporation in good standing in all jurisdictions in which it has intrastate routes, or offices or major overhaul facilities or in which other activities of the Lessee require such qualification; is a "citizen of the United Mexican States" and an "air carrier" within the meaning of the Federal Aviation Act operating under certificates issued under Section 401 and Section 418 of such Act; holds all licenses, certificates, per mits and franchises from the appropriate agencies of the United States of America and/or all other governmental authorities having jurisdiction, material to the oper ation of the routes flown by it and the conduct of its business and operations as presently conducted; has its chief executive office (as such term is defined in Article 9 of the Uniform Commercial Code) in Memphis, Tennessee; and has full the corporate power and authority to conduct its business as presently conducted, to own or hold under lease its assets, the Aircraft and to enter into and perform its obligations under the Lessee’s Documents and to consummate the transactions contemplated by the Lessee’s Operative Documents;
(b) Lessee’s organizational documents incorporate provisions that permitthe execution, delivery and all necessary authorizationsperformance by Lessee of the Operative Documents to which Lessee is a party will, approvals, consents, licenses, permits and orders of and registrations with any Government Entityon the Delivery Date, have been duly and unconditionally obtained and are now in full force and effect that are required to authorize, Lessee to sign and deliver, and perform its obligations under and authorized by all necessary corporate action on the transactions contemplated by, the Lessee’s Documents;
(c) Lessee has duly authorized, executed and delivered this Agreement and this Agreement constitutes, and the other Lessee’s Documents when executed and delivered by Lessee will constitute, legal, valid and binding obligations part of Lessee, enforceable in accordance with their respective terms (except to the extent such enforceability may be limited by insolvencydo not require any stockholder approval, moratorium, bankruptcy, reorganization or other laws affecting the rights of creditors generally);
(d) neither the execution and delivery of the Lessee’s Documents by Lessee nor the performance by Lessee approval or consent of any trustee or holders of any indebtedness or obligations of Lessee except such as Federal Express Boeing 727-2D4 N362PA have been duly obtained or by the transactions contemplated herein Delivery Date will have been duly obtained, and therein will: (i) contravene none of such Lessee Documents contravenes any law, judgment, government rule, regulation or constitute a violation or breach of or a default under any existing law or agreement by which Lessee or any of its assets is bound, any agreement to which it is a party or Lessee’s organizational documents; (ii) cause any limitation order binding on Lessee or its assets the certificate of incorporation or by-laws of Lessee or contravenes the powers of its directors provisions of, or officersconstitutes a default under, whether imposed by or contained in Lessee’s organizational documents or any existing law, agreement or otherwise, to be exceeded; or (iii) result results in the creation or imposition of, or oblige Lessee to create, of any Lien (other than Permitted Liens) over upon the property of Lessee under its undertaking certificate of incorporation or by-laws or any indenture, mortgage, contract or other agreement to which Lessee is a party or by which it or any of its assetsproperties may be bound or affected;
(c) neither the execution and delivery by Lessee of the operative Documents to which Lessee is a party nor the performance by Lessee of its obligations thereunder require the consent, rights approval or revenuesauthorization of, the giving of notice to, or the registration with, or the taking of any other action in respect of any federal, state or foreign government authority or agency, except for (A) the orders, permits, waivers, exemptions, authorizations and approvals of the regulatory authorities having jurisdiction over the operation of the Aircraft by Lessee, which orders, permits, waivers, exemptions, authorizations and approvals have been duly obtained or will on or prior to the Delivery Date be duly obtained, and will on the Delivery Date be in full force and effect and (B) any normal periodic and other reporting requirements under the applicable rules and regulations of the FAA to the extent required to be given or obtained only after the Delivery Date;
(d) assuming due authorization, execution and delivery of the Operative Documents by each party thereto other than the Lessee, the Operative Documents will each constitute legal, valid and binding obligations of Lessee enforceable against Lessee in accordance with the terms thereof;
(e) except for such filingsas set forth in, registrations and recordings as are specified under this Agreement and subject to, the other Lessee’s Documentsopinion of counsel to the Lessee referred to in Section 2.3 hereof, it there is not necessary no pending or advisable under threatened action or proceeding before any court or administrative agency which individually (or in the laws of aggregate in the State of Registration or the Habitual Base in order to ensure the validity, effectiveness or enforceability case of any Lessee’s Document or to protect the rights group of Lessor in the Aircraft or any part thereof that any Lessee’s Document or any other instrument be filed, registered or recorded or that any registration or any other action be taken, and under such laws, the rights of Lessor in the Aircraft will have priority in all respects over the claims of all creditors of Lessee;
(f) the obligations of Lessee under the Lessee’s Documents are, or upon execution thereof by Lessee will be, direct, general and unconditional obligations of Lessee and rank, or will rank, at least pari passu with all other present and future unsecured and unsubordinated obligations (including contingent obligations) of Lessee save for obligations mandatorily preferred by law and not by reason of any Lien;
(g) no event has occurred that constitutes a contravention of, or default under, any agreement by which Lessee or any of its assets is bound or affected, and that could reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents;
(h) no litigation, arbitration or administrative proceeding that could (by itself or together with any other such proceedings or claims) reasonably be expected to have a material adverse effect on Lessee’s ability to observe or perform its obligations under the Lessee’s Documents is (to Lessee’s knowledge) presently in progress or pending against Lessee or any of its assets;
(i) the unaudited financial statements of Lessee prepared by Lessee’s management for the fiscal year ended December 31, 2010 have been prepared in accordance with Mexican generally accepted accounting principles and practices (“GAAPP”related lawsuits), and when deliveredif adversely determined, the audited financial statements of Lessee for the fiscal year ended December 31, 2010 have been prepared in accordance with International Financial Reporting Standards and fairly present the results of its operations for that period and its financial condition at December 31, 2010 and, in particular, to the extent required by International Financial Reporting Standards accurately disclose or reserve against all the liabilities (actual or contingent) of Lessee, and, to Lessee’s knowledge, after reasonable inquiry, there has been no material adverse change to the financial condition of Lessee since December 31, 2010, except as otherwise previously disclosed to Lessor in writing;
(j) all necessary returns have been timely delivered by Lessee to the applicable taxation authorities for which the failure to file could reasonably be is expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s the ability of Lessee Federal Express Boeing 727-2D4 N362PA to observe or perform any of its obligations under the Lessee’s Operative Documents;
(f) except for the filing for recording pursuant to the Act of the Lease with the Lease Supplement covering the Aircraft, taking into account all other obligations that Lessee must observe no further action, including the giving of any notice or perform at that timeany filing or recording of any document (including any financing statement in respect thereof under Article 9 of the Uniform Commercial Code of any applicable jurisdiction), Lessee is not necessary or advisable in default order to establish and perfect the Owner Trustee's title to and interest in the payment Aircraft, as against the Lessee, as against any third parties in any applicable jurisdictions in the United States;
(g) there has not occurred any event which constitutes a Lease Default or a Lease Event of any Taxes shown Default which is presently continuing;
(h) the statement of financial position of Lessee as of May 31, 1992 and February 28, 1993 and the related statements of earnings and cash flow of Lessee for the year and nine months then ended, copies of which have been furnished to each owner Participant, fairly present the financial condition of Lessee as at such dates and the results of operations and cash flow of Lessee for the periods ended on such dates, in accordance with generally accepted accounting principles consistently applied (except as may be payable on any stated in the notes thereto) and since February 28, 1993, there has been no material adverse change in such returns and no claim is being asserted with respect to Taxes that is not condition or operations, except for such matters timely disclosed in filings with the audited Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended, by the Lessee, copies of which have been delivered to each Owner Participant prior to the date hereof, or as disclosed in press releases issued by the Lessee and copies of which have been delivered to each Owner Participant prior to the date hereof, and except as noted in this paragraph (h), neither the financial statements referred to in clause this paragraph (ih) above that if payablenor any other written statement furnished to each Owner Participant, could reasonably be expected to have a material adverse effect on in either case in connection with the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under transactions contemplated by the Lessee’s Operative Documents, taking into account all other obligations that Lessee must observe or perform at that time;
(k) the financial and other information furnished by or on behalf of Lessee to Lessor and its Affiliates or any Person authorized or employed by Lessee as agent, broker, dealer or otherwise in writing does notconnection with the negotiation of the transactions contemplated by the Operative Docu- Federal Express Boeing 727-2D4 N362PA ments, to Lessee’s knowledge, contain contains any untrue statement of a material fact or omit to state any omits a material fact the omission of which makes necessary to make the statements therein, in the light of the circumstances under which they were made, misleading, nor omits to disclose any material matter that has or could reasonably be expected to have a material adverse effect on the financial condition of Lessee or an adverse effect on Lessee’s ability to observe or perform any of its obligations under the Lessee’s Documents and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry by Lesseenot misleading;
(li) no governmental approval of any kind is required of either Owner Parti- cipant or Owner Trustee for their respective execution of or performance under this Agreement or any agreement contemplated hereby solely by reason of any fact or circumstance peculiar to (A) Lessee, under applicable law(B) the nature of, is subject to private commercial law and suitor the proposed conversion of, and neither Lessee nor its properties the Aircraft, or assets have any right of immunity from suit (C) Lessee's proposed operations or execution on use of, or the grounds of sovereignty in proposed conversion of, the United StatesAircraft;
(mj) no Default all sales or Event use tax then due and for which Lessee is responsible pur- suant to Section 4(a) of Default has occurred the Participation Agreement shall have been paid, other than such taxes which are being contested by Lessee in good faith and is continuingby appropriate proceedings (and for which Lessee shall have established adequate reserves) so long as such proceedings do not involve any material risk of the sale, forfeiture or loss of the Aircraft;
(nk) Lessee has not granted tois in compliance in all material respects with all laws, ordi- nances or registered governmental rules and regulations to which Lessee is subject, including, without limitation, the Act, the Occupational Safety and Health Act of 1970, the Employee Retirement Income Security Act of 1974 and all laws, ordinances, governmental rules and regulations relating to environmental protection in favor ofall applicable jurisdictions, any person other than Lessor an “international interest,” “national interest,” “prospective international interest” (as such terms are defined in the Cape Town Convention) violation of which would materially and adversely affect the properties, business, prospects, profits or a de-registration and export request authorization with respect to condition of the Airframe or any Engine;Lessee; and
(o1) assuming that no part of the assets to be used by Lessor to acquire its interest in the Aircraft or any Lender to provide financing in respect of the Aircraft constitutes assets of an “No "employee benefit plan” " (as defined in Section 3(3) of ERISAthe Employee Retirement Income Security Act of 1974, which is subject as amended) maintained by the Lessee or any entity required to Title I of ERISA, a “plan” as defined in be aggregated with the Lessee under Section 4975 414 (b) or (c) of the Code which is subject to Section 4975 (an "ERISA Affiliate") has incurred an "accumulated funding deficiency" (within the meaning of the CodeEmployee Retirement Income Security Act of 1974, an entity whose underlying assets include “plan assets” by reason as amended) and neither the Lessee nor any ERISA Affiliate of the Lessee has incurred any such employee benefit plan’s or plan’s investment in such entity, or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is similar material liability to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, the execution and delivery of this Agreement and the other Lessee’s Documents and the transactions contemplated hereby and thereby will be exempt from, or will not involve any transaction which is subject to, the prohibitions of either Section 406 of ERISA or Section 4975 of the Code and will not involve any transaction in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 of the Code; and
(p) Lessee has duly appointed and registered an officer of Lessee with the International Registry an administrator to act on behalf of Lessee as a transacting user entity.Pension Benefit Guaranty Corporation. Federal Express Boeing 727-2D4 N362PA
Appears in 1 contract
