Contract
Exhibit
10.1
This
Aircraft Time Sharing Agreement ("Agreement") is done this 17th day of August,
2005 by and between US Home Corporation ("Lessor"), a Delaware corporation
whose address is c/o Lennar Corporation, 000 XX 000xx Xxxxxx, Xxxxx 000,
Xxxxx,
Xxxxxxx 00000, and Xxxxxx Xxxxxx ("Lessee"), whose address is c/o Lennar
Corporation, 000 XX 000xx Xxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000 (collectively
the "Parties"). It
is
intended that this Agreement will meet the requirements of a "Time Sharing
Agreement" as that term is defined in FAR Section 91.501(c)(1) whereby Lessor
will lease its Aircraft and flight crew to Lessee.
RECITALS
WHEREAS,
pursuant to the terms of Aircraft Lease (S/N 5607)) between Banc of America
Leasing & Capital, LLC and Lennar Aircraft I, LLC, entered into for the
purposes of Lennar Aircraft I, LLC leasing the aircraft, as described in
Exhibit
A
attached
hereto ("Aircraft"), and the dry sublease between Lennar Aircraft I, LLC
and
Lessor dated August 17,
2005
("Sublease"), Lessor is subleasing the Aircraft from Lennar Aircraft I, LLC
and
has the right and lawful authority to enter into time sharing agreements,
as
defined in Section 91.501(c)(1) of the Federal Aviation Regulations ("FAR"),
with its officers and directors;
WHEREAS,
Lessor has concluded an aircraft management agreement with Turnberry Management
III, Inc. dated August 17, 2005 to provide a fully qualified flight crew
to
operate the Aircraft for the benefit of Lessor as well as for the benefit
of
Lessee under the terms of this Agreement;
WHEREAS,
Lessor and Lessee desire to lease said Aircraft with flight crew on a
non-exclusive time sharing basis;
WHEREAS,
this Agreement sets forth the understanding of the Parties as to the terms
under
which Lessor will provide Lessee with the use, on a periodic basis, of the
Aircraft;
WHEREAS,
the use of the Aircraft will at all times be pursuant to and in full compliance
with the requirements of Federal Aviation Regulations ("FAR") 91.501(b)(6),
91.501(c)(1), and 91.501(d);
NOW,
THEREFORE, in consideration of the mutual covenants and agreements herein
contained, the Parties agree as follows:
1. Lessor
agrees to lease the Aircraft to Lessee pursuant to the provisions of FAR
91.501(c)(1) and to provide a fully qualified flight crew for all operations.
This Agreement shall commence on a date to be specified by Lessor and
communicated to the Lessee in writing (the “Effective Date”), and continue for
the remaining portion of the Calendar Year (“Calendar Year” being defined as the
period beginning January 1st of each year and ending December 31st of the
same
year). Thereafter, this Agreement may be renewed by Lessor upon the designation
of a new Effective Date (the “New Effective Date”), in each subsequent Calendar
Year, in which case this Agreement shall continue on from the New Effective
Date
for the remaining portion of that Calendar Year. Either party may at any
time
terminate this Agreement upon thirty (30) days written notice to the other
party.
2. Cost
of
Use of Aircraft.
(a) In
exchange for use of the Aircraft, Lessee shall pay the direct operating costs
of
the Aircraft up to the amount permitted pursuant to FAR 91.501 for any flight
conducted under this Agreement, but in no case shall such reimbursements
exceed
the actual operating costs. Pursuant to FAR 91.501(d), those direct operating
costs shall be limited to the following expenses for each use of the
Aircraft:
(1) Cost
of
Fuel, Oil, Lubricants and Other Additives;
(2) Travel
expenses of the crew, including food, lodging, and ground
transportation.
(3) Hangar
and tie-down costs away from the Aircraft's base of operation.
(4) Insurance
obtained for the specific flight.
(5) Landing
fees, airport taxes, and similar assessments.
(6) Customs,
foreign permit, and similar fees directly related to the flight.
(7) In
flight
food and beverages.
(8) Passenger
ground transportation.
(9) Flight
planning and weather contract services.
(10) An
additional charge equal to 100 percent of the expenses listed in sub-paragraph
(a)(1) of this Section.
(b) Lessor
shall invoice, and Lessee shall pay, for all appropriate charges, in accordance
with Section 4 hereof.
(c) In
addition to the rental rate referenced in Section 2(a) above,
Lessee shall also be assessed the Federal Excise Taxes as imposed under Article
4261 of the Internal Revenue Code, and any segment and landing fees associated
with such flight(s).
3. Taxes.
The
parties acknowledge that, with the exception of 2.(7) and (8), the payments
specified in Section 2 from Lessee to Lessor are subject to the federal excise
tax imposed under Article 4261 of the Internal Revenue Code of 1986, as amended
(the “Commercial Transportation Tax”). Lessee shall pay to Lessor (for
remittance to the appropriate governmental agency) all Commercial Transportation
Tax applicable to flights of the Aircraft conducted hereunder.
4. Prepayment
for Flights.
Upon
the
Effective Date hereof, Lessee shall deliver to Lessor $100,000 to fund an
account for the costs and payment of flights hereunder (the "Prepayment Fund").
No interest shall be paid on the Prepayment Fund. Immediately upon presentment
of invoices for time-sharing flights, Lessor shall apply funds from the
Prepayment Fund to pay for and reimburse for all reimbursable expenses for
those
flights. Monthly reconciliations shall be provided to Lessee which shall
set
forth the expenses of each specific flight through the last day of the month
in
which any flight or flights for the account of Lessee occur, which expenses
shall conform to FAR Part 91.501(d). Upon termination of this Agreement,
any
funds remaining in the Prepayment Fund shall be returned to Lessee within
thirty
(30) days.
5. Operating
Expenses.
Lessor
will pay all expenses related to the operation of the Aircraft for time-sharing
flights when such expenses are incurred, using the Prepayment Fund. Lessor
will
provide a monthly reconciliation to Lessee for the expenses enumerated in
paragraph 2 above on the last day of the month in which any flight or flights
for the account of Lessee occur. In the event that the net balance of the
Prepayment Fund respecting any monthly reconciliation is less than $100,000,
Lessee shall replenish the Prepayment Fund in an amount such that on the
first
day of the following month the account shall be funded in an amount not less
than $100,000. In the event expenses exceed the Prepayment Fund in any given
month, Lessee shall pay such additional expenses upon receipt of the invoice
for
the amounts exceeding the Prepayment Fund, which invoice shall be presented
within fifteen (15) days of the time such expenses are incurred.
6. Flight
Crew.
Lessor
shall pay for and provide a qualified flight crew for all flight operations
under this Agreement. In accordance with applicable Federal Aviation
Regulations, the qualified flight crew provided by Lessor will exercise all
of
its duties and responsibilities in regard to the safety of each flight conducted
hereunder. Lessee specifically agrees that the flight crew, in its sole
discretion, may terminate any flight, refuse to commence any flight, or take
other action which in the considered judgment of the pilot in command is
necessitated by considerations of safety. No such action of the pilot in
command
shall create or support any liability for loss, injury, damage or delay to
Lessee or any other person. The parties further agree that Lessor shall not
be
liable for delay or failure to furnish the Aircraft and crew pursuant to
this
Agreement when such failure is caused by government regulation or authority,
mechanical difficulty, war, civil commotion, strikes or labor disputes, weather
conditions, or acts of God.
7. Operational
Control.
Lessor
shall be responsible for the physical and technical operation of the Aircraft
and the safe performance of all flights and shall retain full authority and
control, including exclusive operational control, and possession of the Aircraft
at all times during the term of this Agreement. In accordance with applicable
FARs, the qualified flight crew provided by Lessor will exercise all required
and/or appropriate duties and responsibilities in regard to the safety of
each
flight conducted hereunder. The Pilot-In-Command shall have absolute discretion
in all matters concerning the preparation of the Aircraft for flight and
the
flight itself, the load carried and its distribution, the decision whether
or
not a flight shall be undertaken, the route to be flown, the place where
landings shall be made and all other matters relating to operation of the
Aircraft. Lessee specifically agrees that the flight crew shall have final
and
complete authority to delay or cancel any flight for any reason or condition
which, in the sole judgment of the Pilot-In-Command, could compromise the
safety
of the flight and to take any other action which, in the sole judgment of
the
Pilot-In-Command, is necessitated by considerations of safety. No such action
of
the Pilot-In-Command shall create or support any liability to Lessee or any
other person for loss, injury, damages or delay. The Parties further agree
that
Lessor shall not be liable for delay or failure to furnish the Aircraft and
crew
pursuant to this Agreement, whether such failure is caused by government
regulation or authority, mechanical difficulty or breakdown, war, civil
commotion, strikes or labor disputes, weather conditions, acts of God or
other
circumstances beyond Lessor's reasonable control. Lessee agrees that Lessor's
operation of aircraft is within the operation guidelines of the Lessor's
Flight
Operations Department manual the crews are responsible to operate within,
the
guidelines of FAR 91, and the Lessor's Flight Operations Department
manual.
8. Covenants
Regarding Aircraft Maintenance.
The
Aircraft has been inspected in accordance with the provisions of FAR Part
91.
Lessor shall, at its own expense, inspect, maintain, service, repair, overhaul,
and test the Aircraft in accordance with FAR Part 91. The Aircraft will remain
in good operating condition and in a condition consistent with its airworthiness
certification, including all FAA-issued airworthiness directives and mandatory
service bulletins. In the event that any non-standard maintenance is required
during any applicable lease term, Lessor, or Lessor's Pilot-In-Command, shall
immediately notify Lessee of the maintenance required, the effect on the
ability
to comply with Lessee's dispatch requirements and the manner in which the
Parties will proceed with the performance of such maintenance and conduct
of the
balance of the planned flight(s).
9. No
Warranty.
NEITHER
LESSOR (NOR ITS AFFILIATES) MAKES, HAS MADE OR SHALL BE DEEMED TO MAKE OR
HAVE
MADE ANY WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, WRITTEN OR
ORAL,
WITH RESPECT TO ANY AIRCRAFT TO BE USED HEREUNDER OR ANY ENGINE OR COMPONENT
THEREOF INCLUDING, WITHOUT LIMITATION, ANY WARRANTY AS TO DESIGN, COMPLIANCE
WITH SPECIFICATIONS, QUALITY OF MATERIALS OR WORKMANSHIP, MERCHANTABILITY,
FITNESS FOR ANY PURPOSE, USE OR OPERATION, AIRWORTHINESS, SAFETY, PATENT,
TRADEMARK OR COPYRIGHT INFRINGEMENT OR TITLE.
10. Use
of
the Aircraft.
(a) Lessee
may use the Aircraft from time to time, with the permission and approval
of
Lessor's Flight Operations Department, for any and all purposes allowed by
FAR
91.501(b)(6). Lessee's
use shall include use of the Aircraft for the benefit of any related family
member.
(b) Lessee
represents, warrants and covenants to Lessor that:
(1) Lessee
will use each Aircraft for and on his own account only and will not use any
Aircraft for the purposes of providing transportation of passengers or cargo
in
air commerce for compensation or hire;
(2) Lessee
shall refrain from incurring any mechanics or other lien in connection with
inspection, preventative maintenance, maintenance or storage of the Aircraft,
whether permissible or impermissible under this Agreement, and Lessee shall
not
attempt to convey, mortgage, assign, lease or any way alienate the Aircraft
or
create any kind of lien or security interest involving the Aircraft or do
anything or take any action that might mature into such a lien;
(3) during
the term of this Agreement, Lessee will abide by and conform to all such
laws,
governmental, and airport orders, rules, and regulations as shall from time
to
time be in effect relating in any way to the operation and use of the Aircraft
by a time-sharing Lessee;
(c) Lessee
shall provide Lessor's Flight Operations Department with notice of his desire
to
use the Aircraft and proposed flight schedules as far in advance of any given
flight as possible, and in any case, at least forty-eight (48) hours in advance
of Lessee's planned departure. Requests for flight time shall be in a form,
whether written or oral, mutually convenient to, and agreed upon by the Parties.
In addition to the proposed schedules and flight times Lessee shall provide
at
least the following information for each proposed flight at least one hour
prior
to scheduled departure as required by the Lessor or Lessor's flight
crew:
(1) proposed
departure point;
(2) destination;
(3) date
and
time of flight;
(4) the
number and identity of anticipated passengers and relationship to the
Lessee;
(5) the
nature and extent of luggage and/or cargo to be carried;
(6) the
date
and time of return flight, if any; and
(7) any
other
information concerning the proposed flight that may be pertinent or required
by
Lessor or Lessor's flight crew.
(d) Lessor
shall notify Lessee as to whether or not the requested use of the Aircraft
can
be accommodated and, if not, the Parties shall discuss
alternatives.
(e) Lessor's
prior planned utilization of the Aircraft will take precedence over Lessee's
use. Additionally, any maintenance and inspection of the Aircraft takes
precedence over scheduling of the Aircraft unless such maintenance or inspection
can be safely deferred in accordance with applicable laws and regulations
and
within the sound discretion of the Pilot-In-Command.
(f) Lessor
shall have sole and exclusive authority over the scheduling of the Aircraft,
including which Aircraft is used for any particular flight.
(g) Lessor
shall not be liable to Lessee or any other person for loss, injury, or damage
occasioned by the delay or failure to furnish the Aircraft and crew pursuant
to
this Agreement for any reason.
11. Base
of
Operations.
For
purposes of this Agreement, the base of operation of the Aircraft is Opa
Locka,
Florida, with occasional operations at Miami and Ft. Lauderdale FBO's; provided,
that such base may be changed permanently upon notice from Lessor to
Lessee.
12. Successors
and Assigns.
Neither
this Agreement nor any party’s interest herein shall be assignable without the
other party’s written consent thereto. This Agreement shall inure to the benefit
of and be binding upon the parties hereto, their heirs, representatives,
successors and permitted assigns.
13. Notices.
All
notices and other communications under this Agreement shall be in writing
(except as permitted in Section 10(c)) and shall be given (and shall be deemed
to have been duly given upon receipt or refusal to accept receipt) by personal
delivery, the next business day if given by facsimile (with a simultaneous
confirmation copy sent by first class mail properly addressed and postage
prepaid) or by a reputable overnight courier service, addressed as
follows:
If
to
Lessor:
General
Counsel
US
Home Corporation
c/o
Lennar Corporation
000
XX 000xx Xxxxxx, Xxxxx 000
Xxxxx,
XX 00000
Phone:
(000) 000-0000
Fax:
(000) 000-0000
With
a
copy to:
Xxxxxxx
X. Xxxx, Esquire
Xxxxxxxx
Ingersoll PC
0000
Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx,
XX 00000
Phone:
(000) 000-0000
Fax:
(000) 000-0000
If
to
Lessee:
Xxxxxx
Xxxxxx
c/o
Lennar Corporation
000
XX 000xx Xxxxxx, Xxxxx 000
Xxxxx,
XX 00000
Phone:
(000) 000-0000
Fax:
(000) 000-0000
or
to
such other person or address as either party shall from time to time designate
by writing to the other party.
14. Governing
Law and Consent to Jurisdiction.
This
Agreement is entered into under and is to be construed in accordance with
the
laws of the State of Delaware. The parties hereby consent and agree to submit
to
the exclusive jurisdiction and venue of any state or federal court in the
State
of Delaware in any proceedings hereunder, and each hereby waives any objection
to any such proceedings based on improper venue or forum non-conveniens or
similar principles. The parties hereto hereby further consent and agree to
the
exercise of such personal jurisdiction over them by such courts with respect
to
any such proceedings, waive any objection to the assertion or exercise of
such
jurisdiction and consent to process being served in any such proceedings
in the
manner provided for the giving of notices hereunder.
15. Truth-in-Leasing.
The
Lessor shall mail a copy of this Agreement for and on behalf of both Parties
to
the addresses set forth in Section 13 above within
twenty-four (24) hours of its execution, as provided by FAR Section 91.23(c)(1).
Additionally, Lessor agrees to comply with the notification requirements
of FAR
Section 91.23 by notifying by telephone at 000-000-0000, or in person at
0000
Xxx Xxxxxx Xxxxxxxxx, Xxxxx 000, Xx. Xxxxxxxxxx, Xxxxxxx 00000, the FAA
Flight Standards District Office at least forty-eight (48) hours prior to
the
first flight under this Agreement.
(a) LESSOR
CERTIFIES THAT THE AIRCRAFT HAS BEEN INSPECTED IN ACCORDANCE WITH THE PROVISIONS
OF PART 91 OF THE FEDERAL AVIATION REGULATIONS AND THAT ALL APPLICABLE
REQUIREMENTS FOR THE AIRCRAFT'S MAINTENANCE AND INSPECTION THEREUNDER HAVE
BEEN
MET AND ARE VALID FOR THE OPERATIONS TO BE CONDUCTED UNDER THIS
AGREEMENT.
(b) LESSOR,
WHOSE ADDRESS APPEARS IN PARAGRAPH 13 ABOVE AND WHOSE AUTHORIZED SIGNATURE
APPEARS BELOW, AGREES, CERTIFIES AND ACKNOWLEDGES THAT WHENEVER THE AIRCRAFT
IS
OPERATED UNDER THIS AGREEMENT, LESSOR SHALL BE KNOWN AS, CONSIDERED AND SHALL
IN
FACT BE THE OPERATOR OF THE AIRCRAFT AND THAT LESSOR UNDERSTANDS ITS
RESPONSIBILITIES FOR COMPLIANCE WITH APPLICABLE FEDERAL AVIATION REGULATIONS.
(c) THE
PARTIES UNDERSTAND THAT AN EXPLANATION OF FACTORS AND PERTINENT FEDERAL AVIATION
REGULATIONS BEARING ON OPERATIONAL CONTROL CAN BE OBTAINED FROM THE NEAREST
FAA
FLIGHT STANDARDS DISTRICT OFFICE.
16. Possession.
Lessee
certifies that it lawfully possesses the Aircraft and has the authority to
enter
into this Agreement.
17. Subordination.
This
Agreement is subject to the terms and provisions of that certain Aircraft
Lease
(S/N 5607) dated as of February 15, 2005 (the "Banc of America Lease") between
Banc of America Leasing & Capital, LLC ("Banc of America") and Lennar
Aircraft I, LLC and any related documents, agreements or instruments of any
kind
whatsoever. Without limiting the generality of the foregoing, the rights
of
Lennar Aircraft I, LLC, Lessor, Lessee and any other party, person or entity
of
any kind whatsoever claiming through any of Lennar Aircraft I, LLC, Lessor
or
Lessee with respect to the Aircraft (and any and all proceeds thereof,
including, any insurance proceeds) shall be subject and subordinate in all
respects to any and all of the rights, privileges,
powers, entitlements, benefits,
remedies, title or interests of Banc of America in or to the Aircraft (and
any
and all proceeds thereof, including, any insurance proceeds), including,
all of
its rights and remedies under or in connection with the Banc of America Lease
and any related documents, agreements or instruments of any kind whatsoever.
In
addition, and notwithstanding anything to the contrary set forth in this
Agreement or otherwise, upon the occurrence of any Event of Default (as such
term is defined in the Banc of America Lease) under or in connection with
the
Banc of America Lease, this Agreement shall automatically and immediately
terminate.
18. Representations
of Lessor. Lessor represents and warrants that:
(a) It
has
the right, power and authority to enter into and perform its obligations
under
this Agreement, and the execution and delivery of this Agreement by Lessor
have
been duly authorized by all necessary action on the part of Lessor. This
Agreement constitutes a legal, valid and binding obligation of Lessor,
enforceable in accordance with its terms.
(b) It
is a
corporation duly organized, existing and in good standing under the laws
of the
State of Delaware and
has
all necessary power and authority under applicable law and its organizational
documents to own or lease its properties and to carry on its business as
presently conducted.
(c) It
is a
“citizen of the “United States” as defined in Article 40102(a)(15) of Xxxxx 00,
Xxxxxx Xxxxxx Code.
19. Representations
of Lessee. Lessee represents and warrants that:
(a) It
will
use the Aircraft for and on account of its own business only in strict
accordance with the provisions of this Agreement, and specifically in accordance
with FAR 91.501, and will neither sell seats to passengers nor sell space
for
cargo or otherwise use the Aircraft for the purpose of providing transportation
of passengers or cargo in air commerce for compensation or hire.
(b) It
shall
refrain from incurring any mechanics or other lien in connection with
inspection, preventive maintenance, maintenance or storage of the Aircraft
or
otherwise, whether permissible or impermissible under this Agreement, and
that
it shall refrain from attempting to convey, mortgage, assign, lease or any
way
alienate the Aircraft or from creating any kind of lien or security interest
involving the Aircraft, or do anything or take any action that might mature
through notice or the passage of time into such a lien.
(c) During
the term of this Agreement, it will abide by and conform to all such laws,
governmental and airport orders, rules and regulations, as shall from time
to
time be in effect relating in any way to the operation and use of the Aircraft
by a time-sharing Lessee, including, without limitation, Part 91 of the
FARs.
20. Limitation
of Liability; Indemnification.
EACH
PARTY AGREES THAT (A) THE PROCEEDS OF INSURANCE TO WHICH IT IS ENTITLED,
(B) ITS
RIGHTS TO INDEMNIFICATION FROM THE OTHER PARTY UNDER THIS SECTION, AND (C)
ITS
RIGHT TO DIRECT DAMAGES ARISING IN CONTRACT FROM A MATERIAL BREACH OF THE
OTHER
PARTY’S OBLIGATIONS UNDER THIS AGREEMENT ARE THE SOLE REMEDIES FOR ANY DAMAGE,
LOSS, OR EXPENSE ARISING OUT OF THIS AGREEMENT OR THE SERVICES PROVIDED
HEREUNDER OR CONTEMPLATED HEREBY.
EXCEPT
AS
SET FORTH IN THIS SECTION 17, EACH PARTY WAIVES ANY RIGHT TO RECOVER ANY
DAMAGE,
LOSS, OR EXPENSE ARISING OUT OF THIS AGREEMENT OR THE SERVICES PROVIDED
HEREUNDER OR CONTEMPLATED HEREBY. IN NO EVENT SHALL EITHER PARTY BE LIABLE
FOR
OR HAVE ANY DUTY FOR INDEMNIFICATION OR CONTRIBUTION TO THE OTHER PARTY FOR
ANY
CLAIMED INDIRECT, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR FOR ANY
DAMAGES CONSISTING OF DAMAGES FOR LOSS OF USE OR DEPRECIATION OF VALUE OF
THE
AIRCRAFT, LOSS OF PROFITS OR INSURANCE DEDUCTIBLE.
The
provisions of this Section 20 shall survive the termination or expiration
of
this Agreement.
21. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original, and all of which shall constitute one and the same
Agreement, binding on all the parties notwithstanding that all the parties
are
not signatories to the same counterpart.
22. Further
Acts.
Lessor
and Lessee shall from time to time perform such other and further acts and
execute such other and further instruments as may be required by law or may
be
reasonably necessary to: (i) carry out the intent and purpose of this Agreement;
and (ii) establish, maintain and protect the respective rights and remedies
of
the other party.
23. Entire
Agreement.
This
Time
Sharing Agreement constitutes the entire understanding among the Parties
with
respect to its subject matter, and there are no representations, warranties,
rights, obligations, liabilities, conditions, covenants, or agreements other
than as expressly set forth herein.
24. Severability.
In
the
event that any one or more of the provisions of the Agreement shall for any
reason be held to be invalid, illegal, or unenforceable, those provisions
shall
be replaced by provisions acceptable to both Parties to this
Agreement.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
on
the day and year first above written.
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Lessor:
US
HOME CORPORATION
By:
/s/ L. Xxxxxxxxx
Xxxxxx
Lessee:
/s/
Xxxxxx
Xxxxxx
Xxxxxx
Xxxxxx
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