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AIRCRAFT LEASE AGREEMENT NO. 2
dated as of March 15, 1995
between
▇▇▇▇▇▇▇ LEASING, INC.,
as Lessor,
and
CHAUTAUQUA AIRLINES, INC.,
as Lessee.
One Saab 340A Aircraft
with General Electric Engines and
▇▇▇▇▇ Rotol Propellers
Manufacturer's Serial No. 340A-006
U.S. Registration No. N360CA
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TABLE OF CONTENTS
Section 1. DEFINITION ................................................ 1
Section 2. [RESERVED] ................................................ 2
Section 3. DELIVERY .................................................. 2
Section 4. ACCEPTANCE ................................................ 2
Section 5. CERTAIN AGREEMENTS OF LESSE; LESSOR'S
REPRESENTATIONS AND WARRANTIES ............................ 2
Section 6. CONDITIONS PRECEDENT TO DELIVERY AND ACCEPTANCE;
LEGAL OPINION ............................................. 5
Section 7. REPRESENTATIONS AND WARRANTIES OF LESSEE .................. 7
Section 8. TERM ......................................................10
Section 9. RENT ......................................................10
Section 10. LIENS; NAMEPLATES .........................................12
Section 11. REGISTRATION, MAINTENANCE AND OPERATION; POSSESSION ETC ...13
Section 12. RISK OF LOSS; EVENT OF LOSS AND CONDEMNATION ..............22
Section 13. INSURANCE .................................................30
Section 14. INDEMNITY .................................................36
Section 15. TAXES .....................................................39
Section 16. FURTHER ASSURANCE RECORDATION, TITLE REGISTRATION .........46
Section 17. INSPECTION, REPORTS, AUDITS ...............................47
Section 18. DEFAULTS, REMEDIES, DAMAGES ...............................49
Section 19. RETURN OF AIRCRAFT AND RECORDS ............................58
Section 20. ASSIGNMENT SUBLEASE .......................................66
Section 21. NOTICES ...................................................67
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Section 22. SURVIVAL OF COVENANTS; SEVERABILITY........................67
Section 23. ENTIRE AGREEMENT. TITLES...................................68
Section 24. NOTICES OF EVENTS..........................................68
Section 25. EXECUTION AND COUNTERPARTS.................................69
Section 26. CONFIDENTIALITY............................................65
Section 27. COVENANT OF QUIET ENJOYMENT................................65
Section 28. GOVERNING LAW: SUBMISSION TO JURISDICTION..................70
Annex I Definitions
Exhibit A Form of Lease Supplement No. 1
Exhibit B Form of Insurance Endorsements
Schedule 1 Certain Proceedings
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AIRCRAFT LEASE AGREEMENT NO. 2
THIS
AIRCRAFT LEASE AGREEMENT NO. 2 dated as of March 15, 1995
(hereinafter referred to as the "Lease") is made by and between ▇▇▇▇▇▇▇ LEASING,
INC., a Delaware corporation with principal offices at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as "Lessor"), and CHAUTAUQUA
AIRLINES, INC., a New York corporation with principal offices at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as "Lessee").
RECITALS
WHEREAS, this Lease relates to the one (1) used Saab ▇▇▇▇ ▇▇▇▇▇▇▇▇
("▇▇▇ Aircraft") to be described in Lease Supplement No. 1 attached hereto; and
WHEREAS, this Lease and a counterpart of Lease Supplement No. 1 hereto
will be filed for recordation with the Federal Aviation Administration as one
document;
NOW, THEREFORE, in consideration of the foregoing premises and of
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, it is mutually agreed by and between Lessor and Lessee as
follows:
WITNESSETH:
AGREEMENT TO LEASE
Lessor hereby agrees to lease the Aircraft to Lessee and Lessee hereby
agrees to rent and hire the Aircraft from Lessor subject to the terms and
conditions set forth herein.
TERMS AND CONDITIONS
Section 1. DEFINITIONS.
Unless the context otherwise requires, the capitalized terms used
herein shall have the respective meanings assigned thereto in Annex I for all
purposes hereof (such definitions to be
equally applicable to both the singular and the plural forms of the terms
defined).
Section 2. [RESERVED].
Section 3. DELIVERY.
Delivery shall be made to Lessee at St. Louis, Missouri on the
Delivery Date or at such other date and place as shall be mutually agreed upon.
Tender of the Aircraft by Lessor shall be to a Responsible Officer of Lessee or
such other persons duly authorized and appointed by the President or a Vice
President of Lessee.
Section 4. ACCEPTANCE.
At the time of delivery of the Aircraft, Lessee, by and through its
President or one of its Vice Presidents or another duly appointed and authorized
representative, shall accept the Aircraft by executing Lease Supplement No. 1,
and upon such execution, said Lease Supplement No. 1 shall be delivered
immediately to Lessor. The date of execution of Lease Supplement No. 1 shall be
the "Delivery Date" as that term is used herein. Delivery and acceptance of the
Aircraft shall be conclusively deemed to have taken place and shall become
effective upon delivery of Lease Supplement No. 1 to Lessor as of the date of
such Lease Supplement No. 1 and the rights and obligations of each party hereto,
including Lessee's obligation to pay Rent under this Lease, shall become fully
effective with respect to the Aircraft on that date. Accordingly, the Aircraft
shall be deemed to be in good condition without defects, and Lessee's execution
of Lease Supplement No. 1 shall, without further act, irrevocably constitute
acceptance by Lessee of the Aircraft for all purposes of this Lease.
Section 5. CERTAIN AGREEMENTS OF LESSEE: LESSOR'S REPRESENTATIONS AND
WARRANTIES
5.1 LESSEE ACKNOWLEDGES THAT LESSOR IS NOT A MANUFACTURER OF THE
AIRCRAFT AND HAS NOT INSPECTED THE AIRCRAFT PRIOR TO DELIVERY TO AND ACCEPTANCE
BY LESSEE. LESSEE (I) ACKNOWLEDGES AND AGREES THAT THE AIRCRAFT IS A USED
AIRCRAFT AND IS BEING DELIVERED BY LESSOR TO LESSEE "AS IS" AND "WHERE IS" AND
THAT NO CONDITION, WARRANTY OR REPRESENTATION OF ANY KIND WHATSOEVER HAS BEEN OR
IS GIVEN BY OR IS TO BE IMPLIED ON THE PART OF LESSOR IN RELATION TO THE
AIRCRAFT EXCEPT AS SPECIFICALLY PROVIDED IN THIS
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LEASE, (II) HEREBY WAIVES AS BETWEEN ITSELF AND LESSOR ALL OF ITS RIGHTS,
EXPRESS OR IMPLIED (WHETHER STATUTORY OR OTHERWISE) AGAINST LESSOR IN THE
AIRCRAFT EXCEPT AS SPECIFICALLY PROVIDED IN THIS LEASE, RELATING TO (AND LESSOR
WILL BE DEEMED TO HAVE EXPRESSLY DISCLAIMED ANY REPRESENTATION OR WARRANTY,
EXPRESS OR IMPLIED, AS TO) THE CAPACITY, AGE, QUALITY, DESCRIPTION, STATE,
CONDITION, VALUE, WORKMANSHIP, DESIGN, CONSTRUCTION, USE, OPERATION, PERFORMANCE
OR COMPLIANCE WITH SPECIFICATIONS THEREOF OR THE LEASING THEREOF BY LESSOR TO
LESSEE OR TO THE MERCHANTABILITY OR SUITABILITY OF THE AIRCRAFT OR ITS FITNESS
FOR ANY USE OR FOR A PARTICULAR PURPOSE OF THE AIRCRAFT OR ANY PART THEREOF, OR
AS TO ITS AIRWORTHINESS OR AS TO THE QUALITY OF THE MATERIALS OR WORKMANSHIP
WITH RESPECT TO THE AIRCRAFT OR ANY PART THEREOF, OR AS TO THE ABSENCE OF LATENT
OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE, AS TO THE ABSENCE OF ANY
INFRINGEMENT OF ANY PATENT, TRADEMARK OR COPYRIGHT, OR AS TO THE ABSENCE OF ANY
OBLIGATIONS BASED ON STRICT LIABILITY IN TORT, AND (III) AGREES THAT ALL RISKS
OF THE FOREGOING NATURE, WHETHER PATENT OR LATENT, ARE TO BE BORNE BY LESSEE
OTHER THAN RISKS (A) RESULTING FROM THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE
OF LESSOR, OR ANY SUCCESSOR, ASSIGNEE, DIRECTOR, OFFICER, AGENT OR EMPLOYEE OF
LESSOR (UNLESS SUCH WILLFUL MISCONDUCT OR GROSS NEGLIGENCE RESULTS FROM THE ACTS
OR OMISSIONS OF LESSEE ON BEHALF OF LESSOR), (B) WITH RESPECT TO THE AIRCRAFT,
THE AIRFRAME, ANY ENGINE OR PROPELLER, SO LONG AS NO DEFAULT OR EVENT OF DEFAULT
EXISTS, TO THE EXTENT ATTRIBUTABLE TO ACTS OR EVENTS (EXCEPT ACTS OR EVENTS
ATTRIBUTABLE TO OR DESCRIBED HEREUNDER AS A DEFAULT OR EVENT OF DEFAULT, WHETHER
OR NOT DECLARED) THAT OCCUR AFTER THE AIRCRAFT, THE AIRFRAME, ANY ENGINE OR
PROPELLER, AS THE CASE MAY BE, ARE NO LONGER LEASED UNDER THE LEASE AND AFTER
POSSESSION OF THE AIRCRAFT, THE AIRFRAME, ANY ENGINE OR PROPELLER, AS THE CASE
MAY BE, HAVE BEEN DELIVERED TO LESSOR, OR ANY OTHER PERSON ENTITLED TO RECEIVE
DELIVERY IN ACCORDANCE WITH THE LEASE, (C) WHICH ARE THE RESULT OF ANY FAILURE
OF LESSOR TO COMPLY WITH ANY COVENANT, OR ANY BREACH BY LESSOR OF ANY
REPRESENTATION CONTAINED IN THE LEASE OR ANY OTHER OPERATIVE DOCUMENT TO WHICH
LESSOR IS A PARTY, UNLESS SUCH FAILURE IS THE RESULT OF LESSEE'S FAILURE TO
COMPLY WITH ANY TERMS OR PROVISIONS OF THE LEASE OR ANY OTHER LESSEE DOCUMENT,
(D) TO THE EXTENT CAUSED BY ACTS OR OMISSIONS BY OR RELATING TO ANY PARTY OTHER
THAN LESSEE, OR EVENTS RELATING TO SUCH OTHER PARTY THAT OCCUR AFTER FULL AND
FINAL COMPLIANCE BY LESSEE WITH ALL THE TERMS OF THE LEASE AND THE LESSEE
DOCUMENTS, (E) TO THE EXTENT RELATED TO A LESSOR LIEN OR (F) RELATING TO A
DISPOSITION (VOLUNTARY OR INVOLUNTARY) BY LESSOR OF ALL OR ANY PART OF ITS
INTEREST IN THE AIRCRAFT, OTHER THAN AS PERMITTED BY THE LEASE AS A RESULT OF
THE OCCURRENCE OF AN EVENT OF LOSS OR AN EVENT OF DEFAULT UNDER THE LEASE, OR BY
ANY OTHER PERSON OF ALL OR ANY PART OF SUCH PERSON'S INTEREST IN THE AIRCRAFT;
EXCEPT THAT LESSOR HEREBY REPRESENTS AND WARRANTS TO LESSEE THAT ON THE DELIVERY
DATE THE AIRCRAFT SHALL BE FREE OF ALL LIENS OTHER THAN LIENS ARISING OUT OF ANY
ACTION OR INACTION BY LESSEE AND
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LESSOR LIENS. IN PARTICULAR AND WITHOUT PREJUDICE TO THE GENERALITY OF THE
FOREGOING (EXCEPT AS MENTIONED IN THE FIRST SENTENCE OF THIS SECTION 5.1),
LESSOR SHALL BE UNDER NO LIABILITY WHATSOEVER AND HOWSOEVER ARISING, WHETHER IN
CONTRACT OR TORT OR BOTH, IN RESPECT OF ANY LOSS, LIABILITY, DAMAGE OR DELAY OF
OR TO OR IN CONNECTION WITH THE AIRCRAFT OR ANY PERSON (WHICH EXPRESSION
INCLUDES, WITHOUT PREJUDICE TO THE GENERALITY THEREOF, ANY GOVERNMENTAL BODY) OR
PROPERTY WHATSOEVER, WHETHER ON BOARD THE AIRCRAFT OR ELSEWHERE IRRESPECTIVE OF
WHETHER SUCH LOSS, DAMAGE OR DELAY ARISES (X) FROM THE AIRCRAFT NOT BEING IN AN
AIRWORTHY CONDITION, OR (Y) FROM ANY ACT OR OMISSION OF LESSOR (OTHER THAN ANY
ACT OR OMISSION WHICH CONSTITUTES WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF
LESSOR), EXCEPT AS OTHERWISE PROVIDED IN THIS LEASE. THE PROVISIONS OF THIS
SECTION 5.1 HAVE BEEN NEGOTIATED AND ARE INTENDED TO BE THE COMPLETE EXCLUSION
AND NEGATION, EXCEPT AS OTHERWISE PROVIDED ABOVE, OF ANY REPRESENTATION OR
WARRANTY, EXPRESS OR IMPLIED, BY LESSOR IN ANY CAPACITY, WITH RESPECT TO THE
AIRCRAFT, OR ANY PART THEREOF, WHETHER ARISING PURSUANT TO THE UNIFORM
COMMERCIAL CODE OR ANY OTHER LAW NOW OR HEREAFTER IN EFFECT OR OTHERWISE.
5.2 NONE OF THE PROVISIONS OF THIS SECTION 5 OR ANY OTHER PROVISION
OF THIS LEASE AMENDS, MODIFIES OR OTHERWISE AFFECTS THE EXPRESS REPRESENTATIONS,
WARRANTIES OR OTHER OBLIGATIONS OF SAAI OR ANY MANUFACTURER, SUBCONTRACTOR OR
SUPPLIER WITH RESPECT TO THE AIRCRAFT OR ANY PART THEREOF, OR RELEASES SAAI OR
ANY MANUFACTURER, SUBCONTRACTOR OR SUPPLIER FROM ANY SUCH REPRESENTATION,
WARRANTY OR OBLIGATION OR ANY RIGHTS OF LESSOR OR LESSEE. DURING THE TERM OF
THIS LEASE AND SO LONG AS NO DEFAULT OR EVENT OF DEFAULT HAS OCCURRED AND IS
CONTINUING HEREUNDER, LESSEE SHALL BE ENTITLED TO EXERCISE AND ENFORCE AND
ASSERT AT ITS SOLE EXPENSE ALL OF THE RIGHTS WHICH THE LESSOR HAS UNDER ANY
WARRANTY OR GUARANTY OF ANY VENDOR, MANUFACTURER, SUBCONTRACTOR OR SUPPLIER WITH
RESPECT TO THE AIRCRAFT.
5.3 Lessor has the requisite corporate power, authority and legal
right to execute, deliver and perform each and every term of this Lease, Lease
Supplement No. 1 and all other Operative Documents, the same having been duly
authorized by all necessary corporate action of Lessor, and duly executed and
delivered by the authorized officers of Lessor and, assuming the due and proper
execution of the other party thereto, constitute legal, valid and binding
obligations of Lessor, enforceable against it in accordance with such terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the rights of creditors generally and to general
principles of equity.
5.4 Lessor is a corporation duly incorporated, validly existing in
good standing under the laws of the State of Delaware and is duly qualified and
authorized to do business as a foreign corporation in each jurisdiction where
the failure to so qualify or
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to be in good standing would have a material adverse effect on its ability to
carry on its business or to perform its obligations under this Lease.
5.5 Lessor is, and during the Term will continue to be, a "citizen of
the United States" within the meaning of Section 40102(a)(15) of the
Transportation Code.
5.6 No consent or approval of, giving of notice to, registration with
or other action in respect of or by any federal, state or local authority is
required with respect to Lessor's execution and delivery of this Lease,
consummation of the transactions contemplated hereby or performance, of its
obligations hereunder, or if any such consent, approval, giving of notice or
registration is required, it has been duly given or obtained.
5.7 The execution and delivery of this Lease, Lease Supplement No. 1
and all other Operative Documents and the performance by Lessor of its
obligations under this Lease will not contravene or violate any provision of its
charter or Articles or Certificate of Incorporation of By-Laws or any contract,
agreement, indenture or other instrument either binding upon Lessee or to which
it is subject.
5.8 There is no United States federal or state law or governmental
regulation or order that would be contravened or violated by the execution,
delivery and performance of this Lease by Lessor or by the performance of any
term and condition contained herein, or in Lease Supplement No. 1 or in any
other Operative Documents by Lessor.
Section 6. CONDITIONS PRECEDENT TO DELIVERY AND ACCEPTANCE; LEGAL OPINION.
Lessor shall have no obligation to make delivery of the Aircraft or
any part thereof to Lessee unless and until all of the following conditions
precedent have been met, it being acknowledged that delivery by Lessor of the
Aircraft under the Lease and Lease Supplement No. 1 shall be deemed to signify
the fulfillment to the satisfaction of or waiver by Lessor of the conditions
precedent prior to or on the Delivery Date:
6.1. All proceedings taken in connection with the transactions
contemplated hereby and all documents or papers relating thereto, including
without limitation the Operative Documents and this Lease, shall be satisfactory
to Lessor and its counsel, and Lessor and its counsel shall have received copies
of such documents and papers as Lessor or its counsel may reasonably request in
connection therewith or as basis for its counsel's
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closing opinion, all in the form and containing the substance reasonably
satisfactory to Lessor and its counsel;
6.2 Lessee shall have delivered to Lessor a favorable opinion of
Lessee's counsel dated as of the Delivery Date in form and substance reasonably
acceptable to Lessor;
6.3 Lessee shall not be in default of any payment obligation oar in
any material non-payment default with respect to any material indebtedness,
material lease obligation or any material contract;
6.4 A11 representations, warranties, covenants and assurances made by
Lessee hereunder shall remain true and correct on the Delivery Date and there
shall be no material adverse change in the assets, liabilities, business,
prospects, profits or condition, financial or otherwise, of Lessee or of the
ability of Lessee to perform its obligations, duties and covenants under this
Lease from the time of such representations, warranties and assurances to the
Delivery Date;
6.5 Lessee shall have delivered to Lessor an insurance brokers
opinion letter and a Certificate of Insurance issued in the form and containing
the substance required; by.Section3 and containing the endorsements set forth in
Exhibit B hereof;
6.6 Lessee shall have delivered to Lessor a certified copy of the
resolutions adopted by its Board of Directors authorizing the execution and
performance of this Lease setting forth the names of its officers authorized to
execute this Lease and all documents contemplated by the Lease to be executed
by Lessee; and
6.7 FAA Counsel shall have confirmed that they will render an opinion
regarding filing and recording procedures required by this transaction, and on
or before the Delivery Date, the Lease and Lease Supplement No. 1 shall have
been recorded or filed for recording with the FAA Aircraft Registry pursuant to
the Transportation Code in the manner reflected in the opinion of such FAA
Counsel and in such other public offices as may be deemed necessary or
appropriate by such FAA Counsel or by Lessor or its counsel in order to protect
the rights and interest of Lessor thereunder and to perfect such rights and
interests of Lessor in and to the Lease, Lease Supplement No. 1, and the Rent
due and to become due hereunder. By such filing and recording, Lessor and Lessee
are not acknowledging or implying that the Lease constitutes a "security
agreement" or creates a "security interest" within the meaning of any applicable
version of the Uniform commercial Code adopted by any jurisdiction.
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Section 7 REPRESENTATION AND WARRANTIES OF LESSEE
Lessee hereby makes the following representations and warranties:
7.1 Lessee is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of New York and is duly qualified
and authorized to do business as a foreign corporation in each jurisdiction
where the failure to so qualify or to be in good standing would have a material
adverse effect on its ability to carry on its business or to perform its
obligations under this Lease;
7.2 Lessee has the requisite corporate power, authority and legal
right to execute, deliver and perform each and every term of this Lease, Lease
Supplement No. 1 and all other Lessee Documents, the same having been duly
authorized by all necessary corporate action of Lessee, and duly executed and
delivered by the authorized officers of Lessee and, assuming the due and proper
execution of the other party thereto, constitute legal, valid and binding
obligations of Lessee, enforceable against it in accordance with such terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the rights of creditors generally and to general
principles of equity;
7.3 The execution and delivery of this Lease, Lease Supplement No. 1
and all other Lessee Documents and the performance by Lessee of its obligations
under this Lease will not contravene or violate any provision of its charter or
Articles or Certificate of Incorporation or By-Laws or any contract, agreement,
indenture or other instrument either binding upon Lessee or to which it is
subject, nor will any such contract, agreement, indenture or other instrument
create a Lien (other than a Permitted Lien) with respect to this Lease or the
Aircraft;
7.4 There is no United States federal or state law or governmental
regulation or order that would be contravened or violated by the execution,
delivery and performance of this Lease by Lessee or by the performance of any
term and condition contained herein, or in Lease Supplement No. 1 or in any of
the other Lessee Documents by Lessee;
7.5 No consent of shareholders of Lessee or of any holders of
indebtedness of Lessee, and except for the registrations, recordings and filings
made or to be made with respect to the Aircraft under the Operative Documents
and except as required under FAR Parts 125, 129, 135 or 91 (Section91.54), no
consent or approval of, the giving of notice to, registration with, the
recording or filing of any document with, or the taking of any other action in
respect of any governmental authority, body,
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commission or agency or any other entity (except any such consents, approvals,
notices, registrations, recordings, filings or actions as have already been
accomplished by Lessee, and except for routine periodic and other reporting
requirements and renewals and extensions of exemptions, in each case to the
extent required to be given or obtained only after the date hereof), is or will
be required as a condition to the execution and validity of this Lease or as a
condition to or in connection with the authorization, execution, delivery or
performance hereof by Lessee, except those which have been duly made or
obtained, certified copies of which have been or will be delivered to Lessor,
prior to delivery of the Aircraft to Lessee. This Lease and its performance by
Lessee will not violate or contravene any law, regulation, order, judgment or
other similar obligation imposed by any government or regulatory agency, court,
administrative or legislative body applicable to Lessee or the Aircraft;
7.6 Except as set forth in schedule 1 hereto, there are no actions or
proceedings pending or, to Lessee's knowledge, threatened, against Lessee or any
of its subsidiaries or Affiliates before any court or administrative agency in
any jurisdiction that question Lessee's legal capacity to execute, deliver or
perform, or the binding effect or validity of, this Lease or any other Lessee
Document, or which might result in any material adverse effect on the assets,
liabilities, prospects, business, profit, condition or operations, financial or
otherwise, of Lessee or any of its subsidiaries or Affiliates;
7.7 Lessee is fully familiar with all the covenants, terms,
conditions, agreements and warranties of this Lease and is not in default with
respect thereto;
7.8 All Lessee's financial statements, other financial information
and tax returns that have heretofore been provided to Lessor in conjunction with
this transaction fairly and accurately represent the financial condition and
income of Lessee as of the dates given and, as of such dates, such financial
statements and other financial information did not contain any untrue statements
of a material fact, nor did they omit to state a material fact required to be
stated therein or necessary in order to prevent such financial statements or
other financial information from being misleading as of the dates thereof; and
except, as otherwise has been disclosed in writing to Lessor, there is no fact,
situation or event, currently known to Lessee, which, so far as can be foreseen
by Lessee, (a) will materially adversely affect the properties, business,
assets, income, prospects or condition, financial or otherwise, of Lessee or (b)
has had a materially adverse effect on the properties, business, assets, income,
prospects or condition, financial or otherwise, of Lessee since the dates of
such financial statements, other financial information or tax returns;
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7.9 All Federal income tax returns required to be filed by Lessee
have, in fact, been filed, and all taxes which are shown to be due and payable
in such returns have been paid. No material controversy in respect of additional
income taxes due is pending or to the knowledge of Lessee threatened, which
controversy if determined adversely would materially and adversely affect
Lessee's ability to perform its obligations hereunder. The provision for taxes
on the books of Lessee is adequate for all open years, and for its current
fiscal period;
7.10 Lessee is not engaged in any transaction in connection with which
it could be subjected to either a civil penalty assessed pursuant to section 502
(c) of ERISA or any tax imposed by Section 4975 of the Code; no material
liability of the Pension Benefit Guaranty Corporation has been or is expected by
Lessee to be incurred with respect to any employee pension benefit plan (as
defined in Section 3 of MSA) maintained by Lessee; there has been no reportable
event (as defined in Section 4043 (b) of ERISA) with respect to any such
employee pension benefit plan. There has been no event of termination of any
such employee pension benefit plan by the Pension Benefit Guaranty Corporation;
and no accumulated funding deficiency (as defined in Section 302 of ERISA or
Section 412 of the Code), whether or not waived, exists with respect to any such
employee pension benefit plan;
7.11 Lessee is an "air carrier" engaged in interstate air
transportation, as such term is used in Section 40102 (a) (2) of the
Transportation Code, and certificated under Section 44705 of the Transportation
Code, is a "citizen of the United States" as such term is defined in Section
40102 (a)(15) of the Transportation Code, is authorized to operate Saab 340A
Aircraft pursuant to FAR Part 135 and possesses all necessary material
certificates, franchises, licenses, permits, authorizations, rights, concessions
and consents of or from all applicable governmental authorities or agencies of
the United States, including, without limitation, the FAA, that are required for
the operation of the Aircraft, routes flown by Lessee and the conduct of its
business as now being conducted;
7.12 Lessee is not in material default and no condition exists that
with notice, or lapse of time or both would constitute a material default by
Lessee under any mortgage, deed of trust, indenture, security, loan agreement or
other instrument or agreement or evidence of any obligation for borrowed money,
to which Lessee is a party or by which any of its properties or assets may be
bound; and
7.13 Lessee's chief executive office and the place where it keeps its
corporate records is at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇. The offices where it keeps its records
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concerning the Aircraft and all contracts relating thereto are located at ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇. The Aircraft will be based in either Akron,
Summit County, Ohio or Indianapolis, ▇▇▇▇▇▇ County, Indiana, and the components
of the Aircraft which are not attached to or customarily installed on the
Aircraft, will be located in Indianapolis, ▇▇▇▇▇▇ County, Indiana.
Section 8. TERM.
The Term of this Lease for the Aircraft shall commence on the Delivery
Date specified in Lease Supplement No. 1 and unless sooner terminated under the
terms hereof, shall extend through and expire on the first Business Day that
occurs prior to the tenth (10th) anniversary of the Delivery Date, as specified
in Paragraph E of Lease Supplement No. 1. The Term of this Lease is subject to
early termination pursuant to the. provisions of SECTION 18 hereof, respecting
among other things, repossession of the Aircraft prior to the expiration of the
Term hereof.
Section 9. RENT.
9.1 Lessee covenants and agrees to pay Lessor, monthly in arrears,
with respect to the Aircraft, Base Rent for the Term on each Base Rent Payment
Date in the amounts set forth in the. Lease Rent Schedule, which by this
reference is incorporated herein.
9.2 Notwithstanding the expiration, cancellation or other termination
of Lessee's obligation to pay Base Rent hereunder, Lessee agrees to pay to
Lessor, or to any other Person entitled thereto, any and all Supplemental Rent
promptly as the same becomes due and owing. If Lessee fails to pay any
Supplemental Rent, Lessor or such other person entitled thereto shall have the
rights, powers and remedies provided for herein or in any other Lessee Document,
or by law or in equity or otherwise as if Lessee has failed to pay Base Rent.
9.3 All payments of Rent as required by this SECTION 9 and any and
all other payments to Lessor shall be paid in immediately available funds
without Abatement on the date such Rent is due, by wire transfer to Lessor's
account with Skandinaviska Enskilda Banken, New York Branch, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, account number ▇▇▇▇▇▇▇▇, or such other place in the
United States as Lessor may, from time to time, designate.
9.4 Any payment provided herein due on any day not a Business Day
shall be payable on the next preceding Business Day. No payment of Rent may be
prepaid by more than ten (10) days without the prior written consent of Lessor.
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9.5 THIS LEASE IS A NET LEASE, AND LESSEE ACKNOWLEDGES AND AGREES
THAT LESSEE'S OBLIGATION TO PAY ALL RENT HEREUNDER, AND THE RIGHTS OF LESSOR IN
AND TO SUCH RENT, SHALL BE ABSOLUTE AND UNCONDITIONAL AND SHALL NOT BE SUBJECT
TO ANY ABATEMENT, REDUCTION, SET-OFF, DEFENSE, COUNTERCLAIM OR RECOUPMENT
("ABATEMENTS") FOR ANY REASON WHATSOEVER, INCLUDING, WITHOUT LIMITATION,
ABATEMENTS DUE TO ANY PRESENT OR FUTURE CLAIMS OF LESSEE AGAINST LESSOR UNDER
THIS LEASE OR OTHERWISE, AGAINST SAAI OR ANY VENDOR OR MANUFACTURER, OR AGAINST
ANY OTHER PERSON FOR WHATEVER REASON, INCLUDING, WITHOUT LIMITATION: (A) any
default, misrepresentation, negligence, gross negligence, misconduct, willful
misconduct or other action or inaction of any kind by Lessor, any manufacturer
or seller of any component of the Aircraft or any other Person, or any set-off,
counterclaim, recoupment, defense or other right which Lessee may have against
Lessor, the manufacturers or anyone else for any reason whatsoever, (B) any
defect in the title, airworthiness, condition, design, operation or fitness for
use of, or any Lien or other restriction of any kind upon, all or any component
of the Aircraft, or any damage to or loss or destruction of, any part of the
Aircraft or any interruption or cessation in the use or possession thereof by
the Lessee for any reason whatsoever, (C) any insolvency, bankruptcy,
reorganization or similar proceedings by or against Lessor, any manufacturer or
seller of any component of the Aircraft, Lessee or any other Person, (D) any
breach by Lessor of any representation, warranty or covenant of Lessor made
herein or in connection herewith, (E) the invalidity or lack of enforceability
or lack of due authorization or other infirmity of this Lease or the lack of
right, power or authority of Lessor to enter into this Lease, or (F) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing. Except as otherwise provided herein, Lessee hereby waives, to the
extent permitted by Applicable Law, any and all rights which it may now have or
which at any time hereafter may be conferred upon it, by statute or otherwise,
to terminate, cancel, quit or surrender this Lease, except as herein
specifically provided or otherwise agreed between the parties hereto. If for any
reason whatsoever this Lease shall be terminated in whole or in part by
operation of law, except as specifically provided herein, Lessee nonetheless
agrees to pay to Lessor an amount equal to each installment of Base Rent at the
time such installment would have become due and payable in accordance with the
terms hereof had this Lease not been terminated in whole or in part. Each
payment of Rent made by Lessee shall be final and Lessee shall not seek to
recover all or any part of such payment from Lessor for any reason whatsoever.
Nothing in this SECTION 9.5 shall be construed to preclude Lessee from bringing
any suit at law or in equity which it would otherwise be entitled to bring for
breach of any representation, warranty, covenant or duty hereunder.
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9.6 In the event Lessee shall fail to pay any Rent when due
hereunder, Lessee shall pay, to the extent permitted by law, to Lessor or to
such other Person entitled thereto, upon demand, as Supplemental Rent, interest
on such amount from the due date thereof to the date paid at a rate per annum
(computed on the basis of a 365- or 366-day year, as the case may be, and actual
number of days elapsed, including the first day but excluding the last day)
equal to the Overdue Rate.
Section 10. LIENS, NAMEPLATES.
10.1 LIENS. Lessee and Lessor agree that for all purposes, this Lease
is, and is intended to be, a Lease, and that Lessee does not acquire any right,
title, interest or equity in or to the Aircraft, except the right to use it
under the terms provided herein. The Aircraft, excluding those additions to
which Lessee retains title, is and shall at all times, until released, remain
the sole and exclusive property of Lessor.
Lessee shall not directly or indirectly create, incur, assume or
suffer to exist any Lien on or with respect to the Aircraft, any part thereof,
title thereto or any, interest therein, and in this Lease or in any Rent, except
(a) the rights of Lessee under the operative Documents; (b) the rights under the
Operative Documents of the respective parties thereto; (c) the rights of others
under agreements or arrangements to the extent expressly permitted by SECTIONS
11.1 AND 11.2 hereof and similar arrangements for Parts owned by Lessee; (d) any
Lessor Liens; (e) Liens for taxes of Lessee either not yet delinquent or being
contested in good faith by appropriate and timely proceedings, so long as such
proceedings do not involve any material danger of the sale, forfeiture or loss
of or interference with the use of the Aircraft, the Airframe or any Engine or
Propeller or any interest therein; PROVIDED, that Lessee shall maintain on its
books any reserves with respect thereto which may be required by GAAP; (f)
inchoate materialmen's, mechanics', workers', repairers', employees' or other
like Liens arising in the ordinary course of Lessee's business for amounts the
payment of which is either not yet delinquent or is being contested in good
faith by appropriate proceedings so long as such proceedings do not involve any
material danger of the sale, forfeiture or loss or interference with the use of
the Aircraft, or any interest therein, PROVIDED, that Lessee shall maintain on
its books any reserves with respect thereto which may be required by GAAP; (g)
Liens arising out of the maintenance of court actions being defended in good
faith and on a timely basis and Liens arising out of judgments or awards against
Lessee with respect to which an appeal or proceeding for review is being
prosecuted in good faith and with respect to which there is secured a stay of
execution pending such appeal, or proceeding for review;
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and (h) any other Lien with respect to which Lessee provides a bond in an amount
and under such terms as are adequate in the reasonable opinion of Lessor;
PROVIDED, that the aggregate amount of liens which are not being contested and
are delinquent under paragraphs (e), (f), and (g) of this SECTION 10.1 for which
no bond or adequate (in the reasonable opinion of Lessor) security is provided
shall not at any time exceed $25,000-00. For the purpose hereof, the Liens set
forth in clauses (a) through (h) of this SECTION 10.1 shall be "Permitted
Liens". Lessee at its own cost and expense will protect and defend the Aircraft
and any interest therein against all Liens, other than Permitted Liens, and
legal processes of the creditors of the Lessee and other Persons, other than
Permitted Liens, and Lessee will promptly, at its own expense, take such action
as may be necessary to duly discharge any such Lien not permitted by the express
terms above if the same arises at any time.
10.2 NAMEPLATE. Lessee shall attach to and keep upon the Airframe and
each Engine such labels, plates or markings furnished by Lessor as are deemed by
Lessor necessary or advisable to evidence Lessor's ownership thereof; and in any
event Lessee will cause to be affixed to and maintained on the Aircraft in a
location adjacent to and not less prominent than that of the Airworthiness
Certificate, and on each Engine a nameplate furnished by Lessor bearing the
following legend:
"LEASED FROM ▇▇▇▇▇▇▇ LEASING, INC., AS FAA REGISTERED OWNER AND
LESSOR"
such nameplate also to state, to the extent applicable, the type, manufacturer's
serial number and current registration number of the Airframe. Lessor and Lessee
agree that the nameplate shall be changed by Lessor to reflect any transfer of
the interests of Lessor in accordance with the Operative Documents. Except as
above provided, Lessee will not allow the name of any Person to be placed on the
Aircraft with any description that might be interpreted as a claim of ownership
or of security interest therein; PROVIDED, HOWEVER, that nothing herein
contained shall prohibit Lessee from placing its customary colors and insignia
and name on the Aircraft, or from substituting engines, propellers or parts on
the Aircraft in accordance with this Lease.
Section 11. REGISTRATION, MAINTENANCE AND OPERATION: POSSESSION, ETC.
11.1 REGISTRATION, MAINTENANCE, AND OPERATION.
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At its own cost and expense (as between Lessee and Lessor), Lessee
shall:
(i) forthwith upon delivery thereof, pursuant hereto, cooperate and take
no actions inconsistent with the actions of Lessor or any other Person to cause
the Aircraft to be duly registered under the laws of the United States of
America at all times in the name of the Lessor, and shall cooperate and take no
actions inconsistent with the actions of Lessor or any other Person to cause the
interest of Lessor, this Lease, Lease Supplement No.1 and supplements thereto
and hereto, to be duly recorded and maintained of record in each case until
release thereof pursuant to the Operative Documents, and to cooperate and not
interfere with Lessor or any other Person in causing any termination of the
Lease to be recorded at the FAA Aircraft Registry upon its expiration or
termination;
(ii) promptly deliver to Lessor true copies of all applications made by
Lessee in relation to the Aircraft, of all certificates of registration issued
pursuant to such applications and of all notifications given pursuant to such
registrations (including without limitation, notification of changes in Lessee's
maintenance program) and shall not do, or permit to be done by any Person, any
act which might cause the Aircraft to be ineligible for registration with the
FAA, subject to Lessee obtaining such cooperation from Lessor and, to the extent
then so required, to Lessor remaining a "citizen of the United States" as
defined in Section 40102(a)(15) of the Transportation Code and not otherwise
taking any actions which cause the Aircraft to be ineligible for such
registration by reason of Lessors interest therein;
(iii) maintain, inspect, service, repair, overhaul and test the Aircraft
(including corrosion control) in compliance with the Maintenance Program, but in
any event so as to keep the Aircraft (A) in good operating condition, (B) in the
same condition as when delivered to Lessee hereunder, ordinary wear and tear
excepted, and in a condition suitable for airline commercial use (but with no
broken, damaged or missing items or components except obsolete parts and/or
parts undergoing replacement or scheduled to be replaced), (C) in such a manner
as may be necessary to maintain in full force all warranties of manufacturers
and suppliers of the Aircraft and its components, in accordance with their
respective terms, and (D) in such operating condition as may be necessary to
enable the airworthiness certification of the Aircraft to be maintained in good
standing at all times under the Transportation Code and the Aircraft to be
eligible for operation in regularly scheduled United States commercial passenger
service under FAR Part 135 or successor provisions, as may be applicable, but in
any event in a manner, to an extent and with a standard of care and frequency of
maintenance not less than that employed by Lessee with respect
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to similar aircraft and engines owned or leased by it and without regard to any
scheduled return of the Aircraft pursuant hereto, which practices shall at all
times be at or above the standard of the industry for maintenance of similar
aircraft; PROVIDED, HOWEVER, that Lessee shall not be deemed to be in violation
of its obligations under this clause (iii) with respect to any minor violation
which is cured promptly after Lessee becomes aware of it, and in any event not
later than sixty (60) days after Lessee becomes aware of it, so long as such
minor violations do not affect or impair the registration or eligibility for
registration of the Aircraft; and maintain all records, logs and other materials
required by the appropriate authorities of the jurisdiction where the Aircraft
is registered to be maintained in respect of the Aircraft, and permit Lessor to
examine such records at any reasonable time during normal business hours;
(iv) upon Lessor's request, promptly furnish to Lessor notification of any
material changes in the Lessee's Maintenance Program, and such other information
as may be required to enable Lessor to file any reports required by any
Governmental Body as a result of the interests of Lessor in the Aircraft;
(v) pay and provide for all electric power, oil, fuel and lubricant
consumed by and required for the operation of the Aircraft, and all repairs,
parts and supplies necessary therefor;
(vi) except as otherwise provided herein, comply with all applicable
mandatory (A) FAA airworthiness directives, orders and other requirements of FAR
Part 135 or successor provisions, as may be applicable, (B) manufacturer service
bulletins and service letters or similar requirements affecting the Aircraft,
and (C) rules and regulations of the FAA relating to the Aircraft, and take all
steps necessary so that the Aircraft at all times during the Term possesses a
valid FAA Airworthiness Certificate in good standing and that the Aircraft
remains eligible for operation in regularly scheduled United States commercial
passenger service under FAR Part 135 or successor provisions, as may be
applicable, except as provided for in SECTION 12.2 (vi);
(vii) conform with any Applicable Law requiring alteration of the Aircraft
(or obtain a waiver of conformance therewith at no expense to Lessor) and
maintain the same in proper operating condition under such Applicable Law;
PROVIDED, HOWEVER, that Lessee may, with the consent of Lessor, in good faith
contest the validity or application of any such Applicable Law, after having
delivered to Lessor written notice stating the facts with respect thereto, and
so long as such contest does not subject Lessor to criminal liability and does
not subject the Aircraft or any interest therein to any material danger of sale,
forfeiture or loss;
15
(viii) cause the Aircraft to be operated only by duly qualified, currently
certificated pilots having the minimum total pilot hours required by any policy
of insurance required to be carried hereunder and for such certification by the
FAA;
(ix) not maintain, use, operate or locate the Aircraft (A) in violation of
any Applicable Law, or in violation of any airworthiness certificate, license or
registration relating to the Aircraft issued by any Governmental Body; (B) in
any area excluded from coverage by any insurance in effect or required to be
maintained by the terms of SECTION 13, except in the case of requisition by the
United States Government, where Lessee obtains, for the benefit of Lessor,
indemnity in lieu of such insurance from the United States Government against
the risks and in the amounts required by SECTION 13 covering such area; (C)
outside of, or to any destination outside of the United States, except (1) in
connection with the delivery of the Aircraft or any part thereof to the
Manufacturer far any service, repair, modification or alteration required or
permitted hereunder, to the extent not reasonably capable of being performed in
the United States, (2) when the Aircraft is operated or used under contract with
the United States Government under which contract the United States Government
assumes liability for any damage, loss, destruction or failure to return
possession of the Aircraft at the end of the term of such contract and for
injury to persons or damage to property of others, or (3) to destinations within
Canada, Mexico and the Caribbean, so long as the total annual operating time of
the Aircraft (on a calendar year basis) outside of the continental limits of the
United States shall not exceed fifty percent (50%) of the total annual operating
time of the Aircraft for any calendar year prior to January 1, 1999 and to the
extent that such use does not violate the restrictions set forth in SECTION (xi)
hereof;
(x) perform in due course terminating actions with respect to any part of
the Aircraft affected by an FAA airworthiness directive if terminating action is
performed with respect to similar items of aircraft or equipment owned or leased
by Lessee, except for those airworthiness directives whose final compliance date
is later than twelve (12) months after the expiration of the Term of this Lease,
and not defer maintenance or replacement of parts, preventative maintenance
(including corrosion control) or implementation of FAA airworthiness directives
that Lessee in accordance with its ordinary practice would have performed
without regard to any scheduled return of the Aircraft pursuant hereto, or
install replacement components with excessive wear, or except as otherwise
provided in SECTION 19, exchange any Engine, Propeller, landing gear or any
other Part of the Aircraft about to be returned to Lessor for other aircraft
components in Lessee's possession for use on aircraft that will remain in
Lessee's or any Affiliate of
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Lessee's possession after such return in order to reduce or avoid future
maintenance requirements; and
(xi) not allow the Aircraft Base for the Aircraft at any time to be a
location other than Indianapolis, Indiana or Akron, Ohio without thirty (30)
days' prior written notice to Lessor.
11.2 POSSESSION. Except as provided in this SECTION 11 or SECTION 20,
Lessee will not, without the prior written consent of Lessor, sublease or
otherwise in any manner deliver, transfer or voluntarily relinquish possession,
or enter into any contract or arrangement obligating it to deliver, transfer or
relinquish possession of the Airframe, any part thereof, any Engine or Propeller
or install any part of the Airframe, any Engine or Propeller or permit any part
of the Airframe, any Engine or Propeller to be installed, on any airframe other
than the Airframe, except as provided in this SECTION 11 or SECTION 20, except
that so long as no Default or Event of Default exists, and so long as the action
to be taken does not affect Lessor's title to or interest in the Aircraft,
Lessee may, without the prior written consent of Lessor:
(i) subject any Engine or Propeller to normal interchange or pooling
agreements or arrangements customary in the airline industry applicable to other
similar engines or propellers operated by Lessee and entered into by Lessee in
the ordinary course of its business; PROVIDED (A) if Lessor's title to any such
Engine or Propeller is divested pursuant to any such agreement or arrangement or
(B) if Lessee relinquishes possession of such Engine or Propeller for a
continuous period of more than one hundred eighty (180) consecutive days, there
shall be deemed to be an Event of Loss with respect to such Engine or Propeller
and Lessee shall comply with SECTION 12.4 in respect thereof;
(ii) deliver possession of the Aircraft, or any component thereof, to
the manufacturer thereof or its authorized representatives for testing or other
similar purpose or to any organization for service, repair, maintenance or
overhaul work on the Aircraft or any part thereof or for alterations or
modifications in or additions to the Aircraft to the extent required or
permitted by the terms of this Lease;
(iii) install an Engine or a Propeller on an airframe owned by Lessee
free and clear of all Liens, except (A) Liens of the type permitted under
SECTIONS 10.1 (e), (f) and (g), (B) the rights of other U.S. Certificated Air
Carriers under normal interchange agreements that are customary in the airline
industry and entered into by Lessee in the ordinary course of its business, so
long as such agreements do not contemplate, permit or require the transfer of
title to such airframe or the engines or the
17
propellers installed thereon and (C) the Lien of any mortgage which expressly
and effectively provides that each Engine or Propeller shall not become subject
to the Lien thereof, notwithstanding the installation thereof on an airframe or
engine subject to the Lien of such mortgage, unless and until Lessee shall
become the owner of such Engine or Propeller free of the interests of Lessor
therein under this Lease.
(iv) install an Engine or a Propeller on an airframe leased to Lessee
or purchased by Lessee subject to a conditional sale or other security
agreement, PROVIDED (A) such airframe is free and clear of all Liens except the
rights of the parties to the lease or conditional sale or other security
agreement and their purchasers, mortgagees and encumbrancers covering such
airframe and except Liens of the type permitted by clauses (A) and (B) of
subparagraph (iii) of this SECTION 11.2; and (B) such lease, conditional sale or
other security agreement expressly and effectively provides that each Engine or
Propeller shall not become subject to the Lien of such lease, conditional sale
or other security agreement, notwithstanding the installation thereof on any
airframe subject to the Lien of such lease, conditional sale or other security
agreement, unless and until Lessee becomes the owner of such Engine or Propeller
free of the interests of Lessor therein under this Lease; or
(v) transfer possession of the Airframe or any Engine or Propeller to
the United States Government pursuant to a sublease, a copy of which shall be
promptly furnished to Lessor, PROVIDED that such sublease (including, without
limitation, any option of the sublessee to renew or extend) shall not extend
beyond the end of the Term of the Lease.
Notwithstanding anything to the contrary in this SECTION 11.2:
(1) the rights of any transferee or sublessee who receives possession
by reason of a transfer permitted by this SECTION 11.2 (other than a transfer
of an Engine or Propeller which is deemed an Event of Loss) are and shall be
EXPRESSLY subject and subordinate to all the terms of this Lease during the Term
hereof, including without limitation, in each instance, Lessor's rights to
repossession pursuant to SECTION 18, and to avoid such transferee's or
sublessee's right to possession upon such repossession;
(2) Lessee shall remain primarily liable hereunder for the
performance of all the terms of this Lease to the same extent as if such
transfer or sublease had not occurred; and
18
(3) No interchange agreement, sublease or other relinquishment of
possession of the Airframe, any Engine or Propeller shall in any way affect the
registration of the Aircraft with the FAA, or discharge or diminish any of
Lessee's obligations to Lessor or constitute a waiver of any of Lessor's rights
and remedies hereunder. It a lease, conditional sale, or other security
agreement complies with clause (B) of subparagraph (iv) of this SECTION 11.2,
and the lease or conditional sale or other security agreement covering such
airframe also covers an engine or engines or propeller or propellers owned by
the lessor under such lease or subject to a security interest in favor of such
secured party under such conditional sale or other security agreement, Lessor
will not acquire or claim, as against such lessor or secured party, any right,
title or interest in any such engine or propeller as the result of such engine
or propeller being installed on the Airframe or any propeller being attached to
any Engine at any time while such engine or propeller is subject to such lease
or conditional sale or other security agreement and owned by such lessor or
subject to a security interest in favor of such secured party. Lessor also
hereby agrees for the benefit of the mortgagee under any mortgage complying with
clause (C) of subparagraph (iii) of this SECTION 11.2 that Lessor will not
acquire or claim, as against such mortgagee, any right, title or interest in any
engine or propeller subject to the lien of such mortgage as the result of such
engine being installed on the Airframe or such propeller being installed on the
Airframe or any Engine at any time while such engine or propeller is subject to
the lien of such mortgage.
11.3 REPORTS AND RECORDS. Throughout the Term, Lessee shall keep
accurate, complete and current records in English complying with the
requirements of the FAA so as to enable operation of the Aircraft under FAR Part
135 or successor provisions, as may be applicable, and any other applicable
regulations from time to time in force; with recommendations of Manufacturer,
GE, ▇▇▇▇▇ or any other manufacturer or supplier of any Aircraft component; and
with good commercial airline practice of all maintenance carried out with
respect to the Aircraft, and subject to the terms and conditions in SECTION 17.1
shall permit Lessor, or any authorized representative of Lessor, to examine such
records requested by them at any reasonable time.
11.4 REPLACEMENT OF PARTS. Lessee, at its own cost and expense, will
promptly replace all Parts which are installed in or attached to the Aircraft
which may from time to time become worn out, lost, stolen, destroyed, seized,
confiscated, damaged beyond repair or permanently rendered unfit for use for any
reason whatsoever except as provided in SECTION 11.6. In addition, Lessee may,
in the ordinary course of maintenance, service, repair, overhaul or testing, at
its own cost and expense, remove any Parts, whether or not worn out, lost,
stolen, destroyed, seized,
19
confiscated, damaged beyond repair or permanently rendered unfit for use;
PROVIDED that Lessee, except as provided in SECTION 11.6 shall, at its own cost
and expense, repair and reinstall or replace such Parts as promptly as possible.
All replacement Parts shall be free and clear of all Liens (except for Permitted
Liens and interchange and pooling arrangements to the extent permitted by
SECTIONS 10.1 AND 11.2); shall comply with the safety, general operating and
flight regulations of the FAA and other Governmental Bodies having jurisdiction
over the Lessee, the Aircraft or any component of the Aircraft; and shall be in
as good operating condition as, and shall have a value, utility and remaining
useful life at least equal to, the Parts replaced based upon the assumption
that such replaced Parts were in the condition and repair required to be
maintained by the terms hereof Lessee shall maintain all required safety
equipment and instruments on the Aircraft and its component parts.
All Parts at any time removed from the Airframe or any Engine or
Propeller shall remain the property of Lessor no matter where located, until
such time as such Parts are replaced by Parts that have been incorporated or
installed in or attached to the Airframe or any Engine or Propeller and that
meet the requirements for replacement Parts specified above. Immediately upon
any replacement Parts becoming incorporated or installed in or attached to the
Airframe or any Engine or Propeller as above provided, without further act, (i)
title to the replaced Part shall thereupon vest in Lessee, free and clear of the
rights of Lessor, and shall no longer be deemed a Part hereunder, (ii) title to
such replacement Part shall thereupon vest in Lessor (subject only to Permitted
Liens and interchange and pooling arrangements to the extent permitted by
SECTIONS 10.1 AND 11.2), and (iii) such replacement Part shall become subject to
this Lease and be deemed a part of the Airframe or any Engine or Propeller for
all purposes hereof to the same extent as the Parts originally incorporated or
installed in or attached to the Airframe or any Engine or Propeller.
11.5 POOLING OF PARTS. Any Part removed from the Airframe or any
Engine or Propeller as provided in SECTION 11.2 may be subjected by Lessee to a
normal interchange or pooling arrangement customary in the airline industry
entered into in the ordinary course of Lessee's business with other U.S.
Certificated Air Carriers; PROVIDED that no such agreement or
arrangement contemplates or requires the transfer of title of such Part and
PROVIDED that the Part replacing such removed Part shall be incorporated or
installed in or attached to the Airframe or any Engine or Propeller in
accordance with SECTION 11.4 as promptly as possible after the removal of such
removed Part. In addition, any replacement Part when incorporated or installed
in or attached to the Airframe or any Engine or Propeller in accordance with
SECTION
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11.4 may be owned by a U.S. Certificated Air Carrier subject to such normal
pooling arrangement; PROVIDED that Lessee, at its expense, as promptly
thereafter as possible, either (i) causes title to the replacement Part to vest
in Lessor in accordance with SECTION 11.4, by Lessee acquiring title thereto and
transferring title thereto to Lessor, free and clear of all Liens except
Permitted Liens in accordance with the last sentence of SECTION 11.4, or (ii)
replaces such replacement Part by incorporating or installing in or attaching to
the Airframe, any Engine or Propeller, a further replacement Part owned by
Lessee, free and clear of all Liens except Permitted Liens and by causing title
to the replacement Part to vest in Lessor in accordance with SECTION 11.4.
11.6 ALTERATIONS, MODIFICATIONS AND ADDITIONS. Except as otherwise
required by SECTION 11.1 or by this SECTION 11.6, Lessee shall not make any
alterations, modifications or additions to the Aircraft without the prior
written consent of Lessor which approval shall not be unreasonably withheld or
delayed, PROVIDED, HOWEVER Lessee shall make, or shall cause to be made, at no
expense to Lessor, such alterations and modifications in and additions to the
Aircraft as may be required from time to time by the FAA or other Governmental
Body having jurisdiction or as may be required by Applicable Law as a condition
to the use of the Aircraft in ordinary commercial passenger service; and
FURTHER, PROVIDED, Lessee may, at its own expense and subject to compliance with
the requirements of Revenue Procedure 79-48, 1979-2 C.B. 529 from time to time
make such alterations, modifications or additions to the Aircraft as Lessee may
deem desirable in the proper conduct of its business, so long as such
alteration, modification or addition does not diminish the value, utility or
remaining useful life of such item, or impair the condition and airworthiness
thereof, below the value, utility, remaining useful life, condition and
airworthiness thereof immediately prior to such alteration, modification or
addition based upon the assumption that such item was then of the value and
utility and in the condition and airworthiness required to be maintained by the
terms of this Lease; but if the cost of such alteration, modification or
improvement exceeds $75,000 and is not required by this SECTION 11 and is
neither safety-related nor severable as defined in Section 4(4).02 of Revenue
Procedure 75-21, as modified by Revenue Procedure 79-48, and is not described in
subparagraph (ii) of Section 4(4).03 (C) of Revenue Procedure 75-21, 1975-1 C.B.
715 as modified by Revenue Procedure 79-48, such alteration, modification or
addition shall not be made without the prior written consent of Lessor, and
otherwise in compliance with the requirements of Section 4(4).03 (C) of Revenue
Procedure 75-21, as modified by Revenue Procedure 79-48. Lessor may condition
such consent on the agreement by Lessee at its sole expense to remove such
alterations, modifications or additions and to restore the Aircraft to its
original condition upon the expiration or
21
termination of this Lease. Title to all Parts incorporated in the Aircraft as
the result of any alteration, modification or addition made as contemplated in
this SECTION 11.6 shall, except as provided in Revenue Procedure 79-48, without
further act, vest in Lessor, and in either case, shall became subject to this
Lease. So long as no Default or Event of Default exists, or if such Default
exists but has not matured into an Event of Default and Lessor has not withheld
its consent (which Lessor agrees it will not unreasonably withhold), upon a
written request from Lessee, Lessee may remove any such Part if (i) such Part is
in addition to, and not in replacement of or in substitution for, any Part
originally incorporated or intended to be incorporated in the Aircraft at the
time of delivery thereof hereunder or any Part in replacement of, or
substitution for, any such original Part, unless such original Part is removed
and returned pursuant to SECTION 11, (ii) such Part is not required to be
incorporated in the Aircraft pursuant to SECTION 11 OR 19, and (iii) such Part
can be removed without diminishing or impairing the value, utility, appearance,
remaining useful life, condition or airworthiness which the Aircraft would have
had at such time had such alteration, modification or addition not occurred.
Upon any such removal, title to such Part shall, without further act, vest in
the Lessee, free of Lessor Liens, and such Part shall no longer be deemed to be
a Part hereunder. Any Part not so removed prior to the return to Lessor
hereunder of the Aircraft shall remain the property of Lessor and subject to
this Lease.
Lessee shall provide Lessor not less than one hundred eighty (180)
days prior to the end of the Term, with a list of all Parts which Lessee
believes it is entitled to and intends to remove at such expiration date or
termination. Lessor shall have the option, exercisable upon written notice given
to Lessee not more than ninety (90) days and not less than thirty (30) days
prior to the expiration of this Lease, or upon termination of this Lease under
SECTION 18, to purchase for cash any and all such Parts which may be owned by
Lessee at the expiration or other termination of this Lease for an amount equal
to the Fair Market Sale Value thereof at such time.
Lessee shall cause all Parts owned by it during the Term of this Lease
to remain free and clear of all Liens except Permitted Liens.
Section 12. RISK OF LOSS: EVENT OF TOSS AND CONDEMNATION.
12.1 RISK OF LOSS. Upon execution and delivery of Lease Supplement No.
1 and commencing on the Delivery Date and continuing until the expiration or
earlier termination of this Lease and the earlier of either (i) the return by
Lessee of the Aircraft to
22
Lessor subject to SECTION 19.1, or (ii) commencement of the storage period set
forth in SECTION 19.6, (except in connection with a cancellation pursuant to
SECTION 18), Lessee assumes the entire risk of loss of the Aircraft or any part
thereof or of any Event of Loss as defined below or any liability arising out of
the operation, maintenance, use, storage, overhaul, repair, transport or
possession of the Aircraft or any other cause whatsoever, and no Event of Loss
or liability shall relieve Lessee of its obligations hereunder except as
provided herein.
12.2 EVENT OF LOSS - DEFINITION. For all purposes of this Lease, any
of the following events with respect to the Aircraft, Airframe, or any Engine or
Propeller Leased hereunder shall be an Event of Loss:
(i) loss of such property or the use thereof due to theft or disappearance
for a period greater than forty-five (45) consecutive days or extending beyond
the end of the Term;
(ii) loss of such property or the use thereof due to destruction, damage
beyond repair or rendition of such property permanently unfit for normal use by
Lessee for any reason whatsoever;
(iii) any damage to such property which should or does result in the
receipt of insurance proceeds under the policies of insurance required to be
maintained pursuant to SECTION 13 hereof with respect to such property on the
basis of a total loss or constructive total loss;
(iv) the condemnation, taking, confiscation or seizure of, or requisition
of title to such property by any Governmental Body;
(v) the condemnation, taking, confiscation or seizure of the use of such
property for a period in excess of ninety (90) consecutive days or a period
extending beyond the end of the Term, other than a requisition for use by the
United States Government that does not continue beyond the end of the Term;
PROVIDED that pursuant to such requisition the United States Government agrees
to make payments sufficient in amount for the discharge of the obligations of
Lessee hereunder to pay Rent, or Lessee provides other security reasonably
acceptable to Lessor if the United States Government does not so agree to make
such payments, and PROVIDED, FURTHER, that the United States Government agrees
to maintain the Aircraft to a standard which is at least as rigorous as set
forth in this Lease;
(vi) as a result of any rule, regulation, order or other action (generally
applicable to aircraft of the same type as the Aircraft) by the FAA, the
Department of Transportation or other
23
Governmental Body (including any court) having jurisdiction, the use of such
property in the normal course of interestate air transportation of persons is
prohibited for a period of six (6) consecutive months or, if earlier, beyond the
end of the Term, unless lessee, prior to the expiration of such six (6)
consecutive month period (or such shorter period extending beyond the end of the
Term), undertakes and is diligently carrying forward all steps necessary or
desirable to permit the normal use of such property by Lessee or, in any event,
if such use is prohibited for a period of twelve (12) consecutive months;
(vii) with respect to the Aircraft, Airframe or any Engine or Propeller,
the operation or location thereof, while under requisition for use by the United
States Government, in any area excluded from coverage by any insurance policy in
effect with respect thereto required by SECTION 13 hereof if Lessee is unable to
obtain indemnity or insurance in lieu thereof in a manner reasonably
satisfactory to Lessor from the United States Government; or
(viii) the FAA deregisters the Aircraft (other than as a result of (A) the
failure of Lessor to cooperate with Lessee to the extent reasonably required to
maintain United States registration of the Aircraft, (B) to the extent then so
required for the purpose of maintaining United States registration of the
Aircraft, the failure of Lessor to remain a "citizen of the United States" as
defined in Section 40102(a) (15) of the Transportation Code, or (C) Lessor
otherwise causing the Aircraft to be ineligible for such registration by reason
of its interest therein) and such deregistration continues for a period of one
hundred eighty (180) consecutive days.
An Event of Loss with respect to the Aircraft shall also be deemed to
occur if an Event of Loss occurs with respect to the Airframe of the Aircraft.
12.3 EVENT OF LOSS WITH RESPECT TO THE AIRFRAME. Upon the occurrence
of an Event of Loss with respect to the Airframe, or the Airframe and the
Engines or engines or Propellers or propellers then installed on the Airframe,
Lessee shall forthwith (and, in any event, within three days after such
occurrence) give Lessor written notice of such Event of Loss, and on or prior to
the earlier of (i) the ninetieth (90th) day following the day of occurrence of
such Event of Loss and (ii) the date of receipt of insurance payments in respect
of such occurrence, Lessee shall pay:
(1) to Lessor the sum of (A) the Stipulated Loss Value for the
Aircraft as set forth in the Stipulated Loss Value Table computed using the Base
Rent Payment Date immediately preceding the date on which such Event of Loss
occurred (or, if such Event of
24
Loss occurred on a Base Rent Payment Date, computed using such Base Rent Payment
Date or, if such Event of Loss occurs before the First Base Rent Payment Date,
computed using the Delivery Date), plus (B) interest on the amount determined
pursuant to clause (A) at an effective rate per annum equal to the Base Rate
computed for the actual number of days elapsed (on the basis of a 365-or 366-day
year as the case may be) from the date of the Event of Loss to the date of
payment of such Stipulated Loss Value, including the date of the Event of Loss
but excluding the date of payment; and
(2) to Lessor the sum of any Supplemental Rent otherwise due and
payable on or before such payment date.
If all such Stipulated Loss Values and all such other amounts, including,
without limitation, any unpaid or accrued Rent, are paid in full, (x) the
obligation of Lessee to pay all succeeding payments of Base Rent after the Event
of Loss hereunder with respect to the Aircraft shall terminate on the Base Rent
Payment Date immediately preceding the date of such Event of Loss or as of the
Base Rent Payment Date if such Event of Loss occurs on the Base Rent Payment
Date, and (y) provided that if (or when) no Default or Event of Default exists,
Lessor will transfer or cause to be transferred to Lessee, Lessor's title to the
Aircraft, including the Engines and Propellers or a number of engines and
propellers equal to the number of engines and propellers (which are not Engines
and Propellers) installed on the Aircraft at the time such Event of Loss
occurred, free and clear of Lessor Liens, and Lessee shall be subrogated to all
claims, if any, of Lessor against third parties for damage to or loss of the
Aircraft subject to such Event of Loss (other than against insurers under
insurance policies paid for by Lessor). Such transfer to Lessee shall not affect
or limit in any way any obligations of Lessee hereunder unless specifically
discharged by such payment of Stipulated Loss Value and Rent.
12.4 EVENT OF LOSS WITH RESPECT TO AN ENGINE OR PROPELLER. Upon the
occurrence of an Event of Loss with respect to an Engine or Propeller in any
case where the provisions of SECTION 12.3 are not applicable, Lessee shall give
Lessor prompt written notice thereof and shall, within thirty (30) days after
the occurrence of such Event of Loss, duly convey to Lessor, as replacement for
the Engine or Propeller with respect to which such Event of Loss occurred, title
to another engine or propeller of the same or improved make, model and
manufacturer (or engine or propeller of at least the equivalent utility, value
and remaining useful life and suitable for installation and use on the Airframe)
free and clear of all Liens whatsoever (except Permitted Liens) and having a
value, remaining useful life and utility at least equal to, and being in as good
operating condition as, the Engine or
25
Propeller with respect to which such Event of Loss occurred, but in all events
in at least as good condition and repair as required by the terms hereof
immediately prior to the occurrence of such Event of Loss and of the same or
improved make, model and manufacturer as any other Engine or Propeller, as
applicable; PROVIDED, HOWEVER, that if Lessee does not then have reasonably
available a Replacement Engine or Replacement Propeller, as the case may be,
conforming to the requirements set forth in this SECTION 12.4, then Lessee shall
(x) within ninety (90) days after the occurrence of such Event of Loss, either
(i) notify Lessor that Lessee has made arrangements (which arrangements shall be
reasonably satisfactory to Lessor) to obtain a Replacement Engine or Replacement
Propeller, as the case may be, conforming to the requirements of this SECTION
12.4 and shall obtain such Replacement Engine or Replacement Propeller within
ninety (90) days after Lessee shall have notified Lessor of such arrangements,
or (ii) place an order for a Replacement Engine or Replacement Propeller
conforming to the requirements of this SECTION 12.4, from the manufacturer
of such Replacement Engine or Replacement Propeller, PROVIDED, that if
Lessee obtains a Replacement Engine or Replacement Propeller conforming to the
requirements of this SECTION 12.4 from another Person prior to the delivery of
the Replacement Engine or Replacement Propeller ordered from the manufacturer
thereof, Lessee may use the Replacement Engine or Replacement Propeller obtained
from such Person in lieu of the Replacement Engine or Replacement Propeller
ordered from the manufacturer, and (y) promptly upon obtaining such
Replacement Engine or Replacement Propeller from the manufacturer or other
Person, duly convey to Lessor, as replacement for the Engine or Propeller with
respect to which such Event of Loss occurred, title to such Replacement Engine
or Replacement Propeller (free and clear of all Liens whatsoever (except
Permitted Liens)). In such case, Lessee, at its own expense, will prior to or at
the time of any such conveyance (i) furnish to Lessor a warranty (as to title)
▇▇▇▇ of sale, in form and substance reasonably satisfactory to Lessor, with
respect to such Replacement Engine or Replacement Propeller, (ii) cooperate in
the execution and delivery of a supplement hereto, in form and substance
satisfactory to Lessor, subjecting such Replacement Engine or Replacement
Propeller to this Lease, to be duly executed by Lessee and recorded pursuant to
the Transportation code, (iii) furnish or cause to be furnished to Lessor such
evidence of Lessee's (or other party's) title to such Replacement Engine or
Replacement Propeller (including, it requested, an opinion of Lessee's (or other
party's) counsel and of compliance with the insurance provisions of SECTION 13
with respect to such Replacement Engine or Replacement Propeller as Lessor may
reasonably request, and with an opinion of Lessee's (or other party's) counsel
to the effect that title to such Replacement Engine or Propeller, has been duly
conveyed to Lessor free and clear of all Liens whatsoever (except any Lessor
Liens) and is duly leased hereunder (which legal opinions may contain
26
qualifications and statements of reliance reasonably satisfactory to Lessor),
(iv) furnish Lessor a certificate signed by a duly authorized financial officer
or executive of Lessee certifying that, upon consummation of such replacement,
no Default or Event of Default will exist hereunder; (v) furnish such documents
and evidence as Lessor, or its counsel may reasonably request in order to
establish the consummation of the transactions contemplated by this SECTION
12.4, the taking of all corporate proceedings in connection therewith and
compliance with the conditions set forth in this SECTION 12.4, in each case in
form and substance satisfactory to such party, (vi) file and record such Uniform
Commercial Code financing statements covering such Replacement Engine or
Replacement Propeller as may be reasonably requested by Lessor, (vii) assign or
cause to be assigned to Lessor all existing warranties as of the date of
transfer to the extent such warranties are freely assignable, with respect to
such Replacement Engine or Replacement Propeller, subject to Lessee's right to
exercise these rights, so long as no Event of Default has occurred, and (viii)
take such other action as Lessor may reasonably request in order that such
Replacement Engine or Replacement Propeller be duly and properly subject to the
Lease and leased hereunder to the same extent as the Engine or Propeller
replaced thereby. Upon full compliance by Lessee with the terms of this SECTION
12.4, Lessor will cause the appropriate party to transfer to Lessee, at Lessee's
expense (i) title to the Engine or Propeller with respect to which such Event of
Loss occurred and (ii) all claims for damage to such Engine or Propeller, if
any, against third Persons (other than against insurers under insurance policies
paid for by Lessor) arising from the Event of Loss; and Lessor shall, at
Lessee's expense, execute and deliver appropriate bills of sale confirming such
transfer. Any such transfer of title shall be on an "AS-IS" and "WHERE-IS" basis
without recourse or warranty, express or implied except that such Engine or
Propeller is free and clear of all Lessor Liens. Lessee shall be subrogated to
all claims of Lessor, if any, against third parties (other than insurers under
insurance policies paid for by Lessor) for damage to or loss of the Engine or
Propeller being replaced. For all purposes hereof, each such Replacement Engine
or Replacement Propeller shall be deemed part of the property Leased hereunder,
shall be deemed an "Engine" or "Propeller" as defined herein and shall be deemed
part of the Aircraft to the same extent as the Engine or Propeller replaced
thereby. An Event of Loss covered by this SECTION 12.4 shall not result in any
reduction in Base Rent.
12.5 APPLICATION OF PAYMENTS FROM GOVERNMENTAL AUTHORITIES OR OTHERS.
Any payments (other than insurance proceeds the application of which is provided
for in SECTION 13) received at any time by Lessor or Lessee from any
Governmental Body or other person with respect to an Event of Loss, to the
extent of the then applicable Stipulated Loss Value set forth in the Stipulated
Loss
27
Value Table whether resulting from the condemnation, confiscation, theft or
seizure of, or requisition of title to or use of, the Airframe, or any Engine or
Propeller (other than a requisition for use by the United States Government not
constituting an Event of Loss), or otherwise, if paid to Lessee shall be
immediately paid over to Lessor, PROVIDED that Lessee will endeavor to have such
payment made directly to Lessor, and in any event, such payment will be applied
as follows:
(i) if any such payments are received with respect to the Airframe, or
the Airframe and the Engines or engines, Propellers or propellers then installed
on the Airframe, so much of such payments as shall not exceed the Stipulated
Loss Value required to be paid by Lessee pursuant to SECTION 12.3 shall be
applied in reduction of Lessee's obligation to pay such Stipulated Loss Value,
if not already paid by Lessee, or, if already paid by Lessee, shall be applied
to reimburse Lessee for its payment of such Stipulated Loss Value, and the
balance, if any, of such payments remaining thereafter will, after Lessee has
paid all other Rent due and owing, be paid to the order of Lessor if received
from a Governmental Body as a result of a requisition of title to the Airframe
or any Engine or Propeller, or from a Governmental Body other than the United
States Government with respect to a requisition of use of the Airframe or any
Engine or Propeller, and otherwise to Lessee; and
(ii) if such payment is received with respect to an Engine or
Propeller under the circumstances contemplated by SECTION 12.4, all such
payments shall be paid over to Lessee, PROVIDED, Lessee has fully performed the
terms of this SECTION 12 with respect to the Event of Loss for which such
payments are made, and FURTHER PROVIDED, no Default or Event of Default exists
and such payments shall be applied (if not earlier paid to Lessee) to the
purchase price of such Replacement Engine or Propeller at delivery thereof to
Lessor under SECTION 12.4.
12.6 REQUISITION FOR USE BY UNITED STATES GOVERNMENT WITH RESPECT TO
THE AIRFRAME AND ANY ENGINE OR PROPELLER INSTALLED THEREON. If the United States
Government requisitions the use of the Airframe, or the Airframe and the Engines
or engines and Propellers or propellers then installed on the Airframe, during
the Term, and such requisition does not constitute an Event of Loss, all of
Lessee's obligations under this Lease with respect to the Aircraft shall
continue to the same extent as if such requisition had not occurred. All
payments received by Lessor or Lessee from the United States Government for the
use of the Airframe and Engines or engines and Propellers or propellers during
the Term shall be paid over to, or retained by, Lessee, PROVIDED no Default or
Event of Default exists. If the Airframe, or the Airframe and Engines or engines
and Propellers or propellers, are not scheduled
28
to be returned by the United States Government prior to the end of the Term,
Lessor, upon notice given not less than thirty (30) days before the end of the
Term, may elect that an Event of LOSS hereunder be deemed to have occurred on
the last day of the Term and Lessee shall, upon expiration of the Term, pay the
Stipulated Loss Value with respect to the Aircraft on such date. Upon receipt of
payment of Stipulated Loss Value and all Rent and other amounts due and payable
under the Lease, Lessor shall transfer or shall cause to be transferred to
Lessee title to the Aircraft free of all Lessor Liens. If Lessor has elected to
treat such requisition for use as an Event of Loss, upon payment by the Lessee
of the Stipulated Loss Value and all other Rent due and owing, all payments
received by Lessor or Lessee from the United States Government for the use of
the Airframe, Engines and Propellers after expiration of the Term shall be
paid over to, or retained by, Lessee. If after expiration of the Term,
Lessor has not elected to treat such requisition for use as an Event of Loss,
all payments received by Lessor or Lessee from the United States Government for
the use of the Aircraft before the expiration of the Term, shall be paid to or
retained by Lessee, PROVIDED, HOWEVER, upon the expiration of the Term, Lessor
shall give notice to Lessee stating that this Lease shall terminate, expire and
be cancelled upon such date of expiration and the provisions of SECTION 19 shall
be deemed to have been satisfied, and subject to the provisions of this Lease
relating to the survival of any of Lessee's obligations hereunder, this Lease
shall terminate, expire and be cancelled, and upon. such termination, expiration
and cancellation, all payments received by Lessor, Lessee or any other Person
from the United States Government for the use of the Aircraft after the
expiration of the Term shall be paid over or retained by Lessor. Lessee shall
promptly notify Lessor in writing of any such requisition. Upon any such
requisition for use, Lessee agrees to use its best efforts to obtain
reimbursement from the United States Government to Lessor for damages suffered
by Lessor as a result of such requisition for use. Lessee agrees to notify
Lessor promptly in writing in advance of the time when any negotiations between
Lessee and the United States Government with respect to any such requisition
shall commence and will consult with Lessor regarding methods or procedures that
are most appropriate to effect recovery from the United States Government for
any damages suffered by Lessor by reason of such requisition for use. This
SECTION 12.6 shall not be applicable to the Aircraft if an Event of L0SS with
respect to the Aircraft has occurred, except in the case where Lessor has
declared an Event of Loss to have occurred as a result of a United States
Government requisition for use.
12.7 REQUISITION FOR USE BY UNITED STATES GOVERNMENT OF AN ENGINE OR
PROPELLER IN A MANNER CONSTITUTING AN EVENT OF LOSS. If the United States
Government requisitions the use of any Engine or Propeller in a manner
constituting an Event of Loss, Lessee
29
shall replace the Engine or Propeller hereunder by complying with the terms of
SECTION 12.4, and any payments received by Lessor or Lessee from the United
States Government with respect to such requisition shall be paid over to, or
retained by, Lessee, PROVIDED no Default or Event of Default exists.
12.8 APPLICATION OF PAYMENTS OTHER THAN FOR AN EVENT OF LOSS. Any
payments received at any time by Lessor or Lessee from any Governmental Body,
insurer (other than under insurance paid for by Lessee) or other Person with
respect to loss or damage to or requisition for use of the Airframe, any Engine
or Propeller or any other Aircraft not constituting an Event of Loss and not
governed by SECTIONS 12.6 AND 12.7, shall be applied in payment for repairs or
for replacement property in accordance with SECTION 11 and any balance remaining
after compliance with such sections with respect to such damage or loss shall be
paid over to or retained by Lessee if Lessor receives from Lessee prior to
making any such payment, certification from Lessee that the property so damaged
or lost has been repaired or replaced in full and that the costs of such repairs
or replacement have been paid in full. If such repairs or replacements are made
pursuant to contracts requiring progress payments or are made by Lessee, such
proceeds shall be paid over to Lessee from time to tune upon appropriate
certification by Lessee.
12.9 APPLICATION OF PAYMENTS DURING DEFAULT. Any amount received by
Lessor referred to in SECTION 12.5, 12.6, 12.7 OR 12.8 that is payable to Lessee
shall not be paid to Lessee if at the time of such payment a Default or an Event
of Default exists, but shall be held by Lessor as security for the obligations
of Lessee under this Lease and at such time as any such Default or Event of
Default is not continuing, such amount, unless theretofore otherwise applied in
exercise of Lessor's remedies hereunder, shall be paid to Lessee.
Section 13. INSURANCE
13.1. PUBLIC LIABILITY AND PROPERTY DAMAGE INSURANCE. Lessee shall
maintain in effect, at its own expense, public liability insurance and property
damage insurance (including, but not limited to, aviation general liability,
aircraft passenger liability, aircraft property damage liability, cargo/baggage
liability and contractual liability insurance) with respect to the Aircraft (i)
in amounts not less than One Hundred Million Dollars ($100,000,000.00) combined
single limit per occurrence for bodily injury and property damage, but in any
event in amounts not less than the public liability insurance and property
damage insurance applicable to similar aircraft, engines or propellers which
constitute Lessee's fleet, and (ii) otherwise of the type and in the amounts
usually carried by corporations engaged in the same or
30
similar business similarly situated with Lessee and owning, leasing or operating
similar aircraft, engines and propellers and which otherwise cover risks of the
kind customarily insured against by such corporations, with no deductible in
excess of $100,000 per occurrence.
13.2 INSURANCE AGAINST LOSS OR DAMAGE TO AIRCRAFT. Lessee shall
maintain in effect, at its own expense, (i) All Risk Aircraft Hull Insurance
covering the Aircraft at least against perils customarily included in such
insurance, including, without limitation, standard form hijacking coverage and
extended "all risk" ground, flight, ingestion and taxiing risks, including, but
not limited to, hijacking coverage and extended "all risk" coverage with respect
to all Engines, Propellers and Parts while removed from or not installed on the
Aircraft, and (ii) whenever the Aircraft is flown outside the United States and
Canada, in any recognized, or in Lessor's reasonable judgment, threatened area
of hostility, aircraft hull war and political risks insurance, on, or
equivalent to, the Lloyd's R.J.M. Airline one (1/1/77) wording, covering at
least those perils customarily included in such insurance, including without
limitation, risks excluded from the All Risks Aircraft Hull Insurance by the
terms of Lloyd's Aviation War Exclusion Clause AVN_48B except paragraphs (a) and
(b) thereof as in effect on the date hereof, and shall include coverage in
respect of hijacking, confiscation, nationalization, seizure, restraint,
detention, appropriation, requisition of title or use by or under the order of
any Governmental Body. Such insurance shall at all times while the Aircraft is
subject to this Lease be on an "Agreed Value Basis" in each case in amounts not
less than the amounts set forth in the Stipulated Loss Value Table, as specified
in Schedule 1 to the Lease Rent Schedule for the Aircraft from time to time
(determined using the Base Rent Payment Date immediately preceding the date on
which said Event of Loss occurred, or if such Event of Loss occurred on the Base
Rent Payment Date, computed using such Base Rent Payment Date) with no
deductible, with respect to a loss which is not a total loss, arranged total
loss, or constructive total loss, in excess of $100,000 per occurrence,
PROVIDED, HOWEVER, that the Engines, Propellers and Parts while removed from or
not installed on the Aircraft shall be included in aircraft spares coverage in
an amount satisfactory to Lessor, subject to a deductible not greater than
$25,000. Any "fleet aggregate" deductible or sub-limits of liability applicable
to Lessee's fleet shall not apply to claims payable under the above insurance.
13.3 POLICIES. (a) Lessee shall arrange for appropriate certification
of coverages and forms of endorsements to be made promptly to Lessor by the
underwriters or their agents of any policies carried in accordance with this
SECTION 13 covering the
31
Aircraft and any policies taken out in substitution or replacement thereof.
Lessor and (until at least December 22, 1996) Security Pacific Equipment
Leasing, Inc. shall be named as "Additional Insureds" in all such liability
policies, and Lessor shall be named as "Loss Payee" in all such "all risk"
insurance.
(b) All policies of insurance carried in accordance with this SECTION
13:.
(1) shall be placed with insurers with recognized reputation and
responsibility reasonably satisfactory to Lessor;
(2) shall be in full force and effect throughout any geographical areas
at any time traversed by the Aircraft;
(3) shall be payable in lawful currency of the United States in the
United States;
(4) shall be in amounts customary for airlines similarly situated to
Lessee but in no event less than the amounts specified in SECTIONS 13.1 AND 13.2
hereof;
(5) shall not impose any liability on Lessor or any Additional Insured or
Loss Payee or any Covered Person (as defined hereinbelow) to pay premiums for
such insurance but shall provide for notice thereto of any nonpayment of premium
not less than thirty (30) days (seven (7) days or such shorter period as may
from time to time be the longest period obtainable in the industry, in the case
of war risk and allied perils coverage) opportunity to Lessor, each Additional
Insured and Loss Payee to pay such premium without impairing the policy;
(6) shall (i) provide that as to Lessor and each Additional insured or
Loss Payee and each Covered Person (as defined hereinbelow) the insurance shall
not be invalidated (A) by any action or inaction by Lessee and shall insure the
interest of such Persons regardless of any breach or violation by Lessee or any
other additional insured of any warranty, declaration or condition contained in
such policies, and if available at commercially reasonable cost such coverages
shall be provided otherwise than by way of endorsement with Lloyd's Form AVN67A;
PROVIDED HOWEVER, that with respect to secretion, embezzlement or conversion by
the Lessee, no coverage shall apply to any Person which is a willful party to
such secretion, embezzlement or conversion, or (B) because of a subjection of
the Aircraft to any condition, use or operation not permitted by the policy or
(C) because of any false statement with respect to the policy by Lessee or its
employees, agents or representatives, or any other Person except an Additional
Insured (and then such policy shall be impaired only as to such Person); (ii) be
primary without right of contribution from any other
32
insurance which might be available to Lessor and each Additional Insured or Loss
Payee; (iii) waive any rights of subrogation, except with respect to the gross
negligence and/or willful misconduct of such Additional Insured, and any rights
of set-off, counterclaim or deduction against Lessor and each Additional Insured
or Loss Payee; (iv) provide notice of cancellation, nonrenewal, expiration,
change or lapse not less than thirty (30) days after receipt thereof prior to
the effectiveness thereof against Lessor and each Additional insured or Loss
Payee or Covered Person;
(7) shall in the case of policies covering liability, (A) name each
Additional Insured as an additional insured (B) cover the shareholders,
officers, directors, employees and agents of each Additional Insured as
additional insureds (each a "Covered Person"), (C) include the statement
"warranted to have no operational interest", (D) be endorsed to acknowledge and
include the contractual liability of Lessee herein and under the Lessee
Documents; (E) not operate so as to insure the Manufacturer of the Aircraft
against claims arising out of product liability; (F) provide notice of
cancellation, non-renewal, expiration, change or lapse not less than thirty (30)
days after receipt thereof prior to the effectiveness thereof against Lessor and
each Additional Insured or Loss Payee or Covered Person; and (G) provide that
each liability policy shall operate as a separate policy with respect to Lessor
and each Additional Insured and each Covered Person but nothing herein shall
operate to increase the liability of the underwriters as set forth in the
policies beyond the amount for which the underwriters would have been liable
if only one person or interest had been included as an insured;
(8) shall in the case of policies covering loss or damage to the
Aircraft, to the extent of the then applicable Stipulated Loss Values set forth
in the Stipulated Loss Value Table, provide that all insurance proceeds received
hereunder as the result of the occurrence of an Event of Loss with respect to
the Airframe or any Engine or Propeller be made payable to Lessor, for an amount
up to the applicable Stipulated Loss Value, and thereafter any remaining amount
to Lessee. The foregoing notwithstanding, PROVIDED, that Lessor has not notified
the insurer that an Event of Default has occurred and is continuing hereunder,
any loss equal to or less than $100,000.00 (without giving effect to any
deductible provision), shall be paid directly to Lessee, and shall be endorsed
to provide the foregoing coverages in SECTION 13.3 and other endorsements
reasonably satisfactory to Lessor and each Loss Payee. It is further agreed that
all such insurance proceeds shall be applied as follows:
(i) if insurance proceeds are received with respect to the Aircraft or
the Airframe and the Engines or engines or Propellers or propellers installed
on the Airframe, so much of such
33
insurance proceeds remaining after reimbursement of Lessor for costs and
expenses, as shall not exceed the Stipulated Loss Value required to be paid by
Lessee pursuant to SECTION 12.3 and any past-due Rent shall be applied in
reduction of Lessee's obligation to pay such Stipulated Loss Value and all such
other amounts if not already paid by Lessee, or, if already paid by Lessee and
no Default or Event of Default exists hereunder, shall be applied to reimburse
Lessee for its payment of such Stipulated Loss Value and all such other amounts,
and the balance, if any, of such insurance proceeds remaining thereafter will be
paid over to or retained by Lessee;
(ii) if such insurance proceeds are received with respect to an Engine
or Propeller under the circumstances contemplated by SECTION 12.4, so much of
the insurance proceeds remaining after reimbursement of Lessor for costs and
expenses, shall be paid to Lessee, PROVIDED that Lessee shall have fully
performed its obligations and complied with the terms of SECTION 12.4 hereof
with respect to the Event of Loss for which such insurance proceeds are paid,
such payments shall be applied to the purchase price of such Replacement Engine
or Replacement Propeller at delivery thereof to Lessor under SECTION 12.4;
(iii) so long as no Event of Default shall have occurred and be
continuing, the proceeds of any insurance required to be maintained by Lessee
hereunder with respect to any property damage to the Airframe, any Engine or
Propeller shall be applied in the manner described in SECTION 12.8 upon evidence
of completion of repairs, or if such repairs or replacements are made pursuant
to contracts requiring progress payments or are made by Lessee, upon receipt
of Lessee's certification referred to in SECTION 12.8, shall be paid
directly to Lessee; and
(iv) any amount referred to in CLAUSES (I), (II) OR (III) immediately
above that is payable to Lessee shall not be paid to Lessee if at the time of
such payment a Default or Event of Default exists, but shall be held by Lessor,
as security for the obligations of Lessee under this Lease and at such time as
there is not continuing any such Default or Event of Default such amount, unless
theretofore otherwise applied in exercise of Lessor's remedies hereunder, shall
be paid to Lessee;
(9) if the liability policies are on a "claims-made basis" and not on an
"occurrence basis", Lessee shall continue to carry such liability policies for
an additional three (3) years after the expiration or termination of this Lease
and shall cause Lessor, Lessor and each Additional Insured and Covered Person
(regardless of whether or not the Lease has expired or been terminated) to be
named as additional insureds; and
34
(10) shall be endorsed to provide the foregoing coverages in the form of
the endorsements set forth in EXHIBIT B and other endorsements reasonably
satisfactory to Lessor.
13.4 REPORTS, ETC. Lessee will cause its insurance broker to furnish
Lessor and each Additional Insured or Loss Payee (i) on the Delivery Date of the
Aircraft, (ii) on the policy anniversary date thereafter, and (iii) on the date
a Replacement Engine or Replacement Propeller is conveyed to Lessor pursuant to
SECTION 12.4, a report, dated the day of its delivery, signed by Lessee's
insurance broker, reasonably acceptable to Lessor, describing in reasonable
detail the insurance then carried and maintained on the Aircraft, certifying
that such insurance complies with the terms hereof and that the terms of this
SECTION 13 have been endorsed on such policies, and stating the opinion of such
broker that such insurance is in an amount deemed adequate, based upon normal
industry practice, for the protection of the respective interests of Lessor and
each Additional Insured or Loss Payee and each Covered Person, and is usual for
corporations operating similar aircraft and similarly situated with the Lessee,
PROVIDED, HOWEVER, such opinion shall not be deemed to be a guarantee or other
undertaking that such limits will be adequate under all circumstances. Lessee
will advise and will cause its insurance broker to advise Lessor and each
Additional Insured or Loss Payee in writing promptly of any default in the
payment of any premium and of any other act or omission on the part of Lessee
which might invalidate or render unenforceable, in whole or in part, any
insurance on the Aircraft Lessee shall cause its insurance broker to furnish to
Lessor and each Additional Insured or Loss Payee on the Delivery Date or as soon
as available thereafter but not later than thirty (30) days after the Delivery
Date, copies of any insurance certificates required to be carried hereunder, and
within fifteen (15) days of replacement thereof, copies, (pound) such
replacement insurance certificates, or with respect to any Replacement Engine or
Replacement Propeller, within fifteen (15) days of replacement thereof,
certificates evidencing the insurance required to be carried hereunder. If
Lessee fails to maintain insurance as provided herein, Lessor, or any
Additional Insured or Loss Payee may, at its option, provide such insurance and
in such event, Lessee shall, upon demand, reimburse Lessor or such Additional
Insured or Loss Payee, as the case may be, as Supplemental Rent, for the cost
thereof.
13.5 INSURANCE FOR OWN ACCOUNT. Nothing in this SECTION 13 shall
limit or prohibit Lessor and each Additional Insured or Loss Payee and each
Covered Person, from obtaining insurance for its own account and any proceeds
payable thereunder shall be payable as provided in the insurance policy relating
thereto; PROVIDED that no such insurance may be obtained which would limit,
replace, or otherwise adversely affect the coverage of
35
any insurance required to be obtained or maintained pursuant to this SECTION 13.
Section 14. INDEMNITY
14.1 Lessee hereby assumes liability for, and shall indemnify,
protect, save and keep harmless each indemnified Person, including, without
limitation, Lessor, from and against, any and all liabilities, obligations,
losses, damages, penalties, claims, actions, suits, costs, and expenses,
including legal fees and expenses, of whatsoever kind and nature (herein
collectively called "Liabilities") imposed on, incurred by or asserted against
such Indemnified Person in any way relating to or arising out of (i)
maintenance, overhaul, repair, acquisition, construction, manufacture,
installation, purchase, ownership, delivery, lease, sublease, possession,
rental, use, condition, operation, transportation, return, sale, replacement,
storage or disposition of the Aircraft or any part thereof (including,
without limitation, liabilities in any way relating to or arising out of the
latent or other defects, whether or not discoverable by Lessee or any other
person, injury to persons or property, patent, trademark, or invention rights,
or strict liability in tort), or (ii) this Lease or any of the other Lessee
Documents or any of the transactions, obligations and indemnities contemplated
hereby or thereby, or any other document or instrument hereafter required to be
executed and delivered by Lessee pursuant to the terms hereof or thereof, or the
enforcement against Lessee of any of the terms of this Lease or any of the other
Operative Documents, or (iii) the enforcement of any agreement, restriction or
legal requirement applicable to Lessee affecting the Aircraft or any part
thereof or the operation, maintenance, use or possession of the Aircraft or any
part thereof by Lessee; PROVIDED, HOWEVER, that Lessee shall not be required to
indemnify any Indemnified Person for (A) Liabilities resulting from the gross
negligence or willful misconduct of such Indemnified Person or a successor,
assignee, director, officer, agent or employee of such Indemnified Person
(unless such willful misconduct or gross negligence results from acts or
omissions of Lessee on behalf of such Indemnified Person); (B) Liabilities in
respect of the Aircraft which arise from acts or events that occurred prior to
the Delivery Date or occur after the Aircraft is no longer leased under this
Lease and after possession of the Aircraft has been delivered to Lessor, or any
other Person entitled to receive delivery in accordance with this Lease or upon
commencement of the storage period set forth in SECTION 19.7 (unless such
termination or repossession shall have occurred as a result of this Lease having
been declared in default pursuant to SECTION 18 hereof); (C) Liabilities
resulting solely frown the breach of any representation, warranty or covenant
made by an Indemnified Person herein or in any other Operative Document to which
such indemnified Person is a
36
party (unless such breach is the result of Lessee's failure to comply with the
Lessee Documents): (D) Liabilities resulting from any violation by an
indemnified Person of Section 5 of the Securities Act of 1933, as amended (or
any comparable successor thereto), or otherwise arising out of the transfer,
after the date of this Lease, of any Note or of the ownership interest in the
Aircraft not consented to by Lessee; (E) Liabilities which are or relate to an
Imposition described in SECTION 15 of this Lease except to the extent provided
therein, it being understood that all indemnities for Impositions are covered by
SECTION 15; (F) Liabilities resulting from a voluntary disposition by Lessor or
any indemnified Person, as the case may be, affecting in respect of or of all or
any part of its interest in the Aircraft, the Airframe, any Engine, any
Propeller, any Part, any operative Document, the Collateral or any payment of
Rent, including any Liability arising as a result of acts of or claims against,
or which secure the obligations of Lessor (or Persons claiming through Lessor),
but excluding any other acts of such Persons in accordance with the terms of
this Lease or any other Lessee Document; or (G) Liabilities arising out of or
resulting solely from the construction, manufacture, installation or design of
the Aircraft by the Manufacturer, including any breach by the Manufacturer of
patent, trademark or invention rights in connection with the construction,
manufacture, installation or design of the Aircraft.
14.2 Lessee shall be bound under, this SECTION 14 irrespective of
whether such Indemnified Person shall, also be indemnified with respect to such
Liabilities elsewhere under this Lease or under any other operative Document or
by any other Person, and any Indemnified Person may proceed directly against
Lessee under this SECTION 14 without first resorting to any such other rights of
indemnification. With respect to any payment for indemnity hereunder, such
payment for indemnity shall include any amount necessary to hold each
Indemnified Person harmless on a net after-tax basis and taking into account any
tax benefit or detriment realized by such Indemnified Person as a result of such
payment from all taxes required to be paid by such Indemnified Person with
respect to such payment for indemnity under the laws of any Federal, state or
local government or taxing authority in the United States of America.
14.3 Upon commencement of any proceeding (including the written threat
or written claim of any proceeding) against an Indemnified Person involving any
one or more Liabilities four which indemnity is provided hereunder, such
Indemnified Person shall promptly, upon receiving written notice thereof, give
notice of such commencement to Lessee, PROVIDED that, the failure by Indemnified
Person so to notify Lessee shall not release Lessee from any of its obligations
under this SECTION 14, unless such failure materially impairs Lessee's ability
to participate in such
37
proceeding, but any payment by Lessee to any Indemnified Person pursuant to
this SECTION 14 shall not be deemed to constitute a waiver or release of any
right or remedy (including any remedy of damages) Lessee may have against such
Indemnified Person if, solely as a result of the failure by Indemnified Person
to give Lessee notice in accordance with the first sentence of this paragraph,
Lessee is unable to contest the Liability or other liability indemnified against
pursuant to this SECTION 14. Lessee shall be entitled (i) in any proceeding that
involves solely a claim for one or more Liabilities or other liabilities in
respect to which Lessee has an indemnity obligation pursuant to this SECTION 14,
to exercise and defend all rights of such Indemnified Person (PROVIDED that
Lessee furnishes such Indemnified Person with an opinion of counsel reasonably
satisfactory to such Indemnified Person to the effect that there exists a
meritorious basis for contesting such Liabilities or other liabilities unless
(x) such proceedings will, in the opinion of counsel for such Indemnified Person
involve any reasonable possibility of the sale, forfeiture or loss of the
Aircraft or any Engine or Propeller or any part thereof, or (y) such
Liabilities or other. liabilities, in the opinion of counsel for Lessor, have a
reasonable possibility of otherwise compromising or jeopardizing any substantial
interests of Lessor in and to the Aircraft or any interest hereunder) or to
require such Indemnified Person to assume responsibility therefor and control
thereof, (ii) in any proceeding involving a claim for one or more such
Liabilities or the transactions contemplated by this Lease and the other
Operative Documents, to require such indemnified Person to assume responsibility
therefor and control thereof to the extent that any of the same may be and is
severed from such other claims (so long as, in the opinion of counsel for the
affected Indemnified Person, such severance and assumption of responsibility and
control by such Indemnified Person does not have reasonable possibility of
adversely affecting the resolution of such other claims), or (iii) in any other
case, to be consulted by such Indemnified Person with respect to proceedings
subject to the control of such indemnified Person. Notwithstanding any of the
foregoing, Lessee shall not be entitled to require Lessor or any other
Indemnified Person to assume responsibility for and control of any judicial
proceeding if (A) the Liabilities or other liabilities involved are less than
$100,000 in the aggregate, or such Liabilities are covered by insurance or
Lessee is financially capable of paying such claim or Liability or (B) an Event
of Default hereunder exists. In the event Lessor or any other Indemnified Person
does not contest a Liability in any judicial proceeding, Lessee shall have the
right, to the extent permitted by law, to contest, at its sole cost and expense,
any such claim or Liability by substituting itself for Lessor or such
Indemnified Person in any judicial proceeding that involves solely a claim or
liability for one or more Liabilities or other liabilities in respect to which
Lessee has an indemnity obligation pursuant to this SECTION 14. To the extent
Lessee is
38
entitled to defend any claim hereunder, the Indemnified Person with respect to
such claim may participate at its sole cost and expense.
14.4 Each Indemnified Person claiming hereunder shall supply Lessee
with such information as Lessee shall reasonably request to defend or
participate in any proceeding to the extent permitted by this SECTION 14. Unless
an Event of Default has occurred and is continuing, such Indemnified Person
shall not enter into a settlement or other compromise or consent to a judgment
with respect to any Liability without the prior written consent of the Lessee
(which consent shall not be unreasonably withheld or delayed), unless such
Indemnified Person waives its right to be indemnified with respect to such
Liability under this SECTION 14.
14.5 If an Indemnified Person shall obtain a repayment of any
Liabilities paid by Lessee pursuant to this SECTION 14, such Indemnified Person
shall promptly pay to Lessee the amount of such repayment, together with any
interest (other than interest for the period, if any, after such Liability was
paid by such Indemnified Person until such Liability was paid or reimbursed by
Lessee) received by such Indemnified Person on account of such repayment.
14.6 Nothing in this SECTION 14 or in SECTION 15 shall be deemed to
constitute a guarantee by Lessee of the residual value of the Aircraft.
14.7 In the event Lessee shall be obligated to indemnify any
Indemnified Person pursuant to this SECTION 14, Lessee shall be subrogated to
the rights of the Indemnified Person in respect of the matter as to which the
indemnity was paid.
14.8 For purposes of this SECTION 14, "Indemnified Person" shall
include all corporations making a consolidated or combined return in which an
Indemnified Person is included and the agents, employees, servants, successors
and assigns of any thereof.
14.9 The provisions of this SECTION 14 shall survive the expiration or
termination of this Lease.
Section 15. TAXES.
15.1 Lessee hereby assumes liability for and shall pay, indemnify,
protect, save and keep each Indemnified Person, including, without limitation,
Lessor, harmless on an after-tax basis from and against, any and all fees, taxes
(including, without limitation, income, franchise, excise, sales, use,
occupational, capital, value added, property and stamp taxes and taxes imposed
in respect of items of tax preference), levies, assessments, imposts, duties,
charges or withholdings of any nature whatsoever, together
39
with any penalties, fines or interest thereon (all of the foregoing being herein
collectively called "Impositions") imposed against any Indemnified Person or the
Aircraft or any part thereof by any federal, state or local government or taxing
authority or by any foreign governmental subdivision or other foreign taxing
authority (i) upon or with respect to the Aircraft or any part thereof or any
interest in any thereof, (ii) upon or with respect to the manufacture,
acquisition, construction, installation, purchase, delivery, ownership, lease,
sublease, possession, rental, use, operation, transportation, return, sale,
replacement, storage, repossession, maintenance, repair, abandonment,
redelivery, modification, rebuilding, importation, exportation or disposition
(excluding any disposition of the Aircraft which occurs after the expiration of
the Term of this Lease unless such disposition results from the termination of
this Lease pursuant to a default under SECTION 18 hereof) of the Aircraft or any
part thereof, (iii) upon or with respect to the rentals, receipts, earnings or
gains arising from the Aircraft or any part thereof or the income or proceeds
with respect to the Aircraft or (iv) upon or with respect to this Lease or any
other Operative Document including the performance of any of the transactions,
obligations or indemnities contemplated hereby or thereby; PROVIDED, HOWEVER,
that notwithstanding anything in this Lease or any other Operative Document to
the contrary, Lessee shall have no obligation to pay or to hold Lessor or any
other Indemnified Person harmless against any tax, claim or other Liability,
with respect to:
15.1.1 Impositions which are based on, or measured by, the net
income of any Indemnified Person to the extent imposed by the United States of
America, including Impositions by the United States Federal Government expressly
in lieu of such taxes and any withholding taxes imposed by the United States
federal government in connection with such Impositions;
15.1.2 Impositions which are based on, or measured by, the net
income of any Indemnified Person to the extent imposed by any foreign country,
state, city or municipality or by any political subdivision of such foreign
country, state, city or municipality or any similar franchise, net worth, right
of an Indemnified Person to exist, doing business, or employing capital tax, but
only to the extent that the amount of any such Imposition imposed by any such
taxing authority does not exceed the amount of Impositions to which such
Indemnified Person would have been subject if the Aircraft had not been used,
operated, stored or maintained in that taxing authority's jurisdiction;
15.1.3 Impositions which are imposed with respect to any period,
or with respect to any act or omission, which occurred or failed to occur prior
to the Delivery Date with respect to the Aircraft or occurring after the
termination of this Lease
40
and the return of the Aircraft to Lessor in accordance with SECTION 19 of this
Lease (unless such termination shall have occurred as a result of this Lease
having been declared in default pursuant to SECTION 18 hereof);
15.1.4 Impositions resulting from a voluntary transfer or other
voluntary disposition or any involuntary transfer or involuntary disposition by
any Indemnified Person of any interest in the Aircraft or the Lease, unless such
transfer or other disposition occurs (A) while an Event of Default exists, if
such transfer or other disposition is pursuant to the exercise of one of
Lessor's remedies under the Lease as a result of such Event of Default, (B)
pursuant to or in accordance with a transfer or other event with respect to
which Stipulated Loss Value is required to be paid, unless such stipulated Loss
Value is paid in full, or (C) in the case of an involuntary transfer or
involuntary disposition, as a result of any acts, omissions or
misrepresentations of Lessee;
15.1.5 Impositions imposed upon Lessor or any other Indemnified
Person by virtue of such Indemnified Person's failure to file proper and timely
reports or returns or to pay any taxes when due or the failure to claim an
applicable exemption, unless any of the foregoing failures results from any
action or omission by Lessee, including the failure to provide such Indemnified
Person or any other Person information in a proper and timely manner or
otherwise to take such actions as are required of Lessee hereunder with respect
to such Impositions;
15.1.6 Impositions payable by any Indemnified Person as a direct
and primary result of such Indemnified Person's gross negligence or willful
misconduct or a breach or inaccuracy of a material representation or warranty or
covenant made by such Indemnified Person in any Operative Document or any
document required to be delivered under any Operative Document; or
15.1.7 Impositions imposed upon an Indemnified Person to the
extent resulting from such Indemnified Person engaging in transactions other
than those contemplated by the Operative Documents;
PROVIDED, FURTHER, that Lessee agrees to pay any such Impositions referred to in
the foregoing clauses which are in substitution for or relieve Lessee from any
Impositions or indemnity therefor which Lessee would otherwise be obligated to
pay under the terms of this SECTION 15,
15.2 With respect to any payment or indemnity under this SECTION 15,
such payment or indemnity shall include any amount necessary to hold each
Indemnified Person harmless on a net
41
after-tax basis (taking into account any tax benefit or detriment realized as a
result of receipt of such payment) from all taxes required to be paid by such
Indemnified Person with respect to such payment or indemnity under the laws of
any Federal, state or local government or taxing authority in the United States
of America. In case any report or return is required to be filed with respect to
any obligation of Lessee under this SECTION 15 or arising out of this
SECTION 15, Lessee will either make such report or return in such manner as
will show the ownership of the Aircraft in Lessor or will notify Lessor or such
other Indemnified Person of such requirement and make such report or return in
such manner as shall be satisfactory to Lessor or such other Indemnified Person.
15.3 (a) Upon the commencement of any proceeding (including the
written claim or written threat of any proceeding) against any Indemnified
Person involving one or more impositions, such Indemnified Person shall
promptly, upon, receiving written notice thereof, give notice of such
commencement to Lessee. If Lessee so requests in writing within thirty (30) days
after receipt of such notice, such Indemnified Person shall exercise on Lessee's
behalf or, upon Lessee's request, permit Lessee to exercise any contest rights
which such Indemnified Person may have; PROVIDED, HOWEVER, that in no event
shall any Indemnified Person be required to exercise its contest rights or shall
Lessee be permitted (except with such Indemnified Person's sole consent) to
contest or to continue to contest any Imposition for which Lessee is obligated
pursuant to this SECTION 15 unless (s) no Default or Event of Default hereunder
has occurred and is continuing; (t) no amounts of Rent are past due under this
Lease; (u) the amount of such claim, together with all claims of a similar
nature (both present and reasonably expected to be asserted), are at least
$50,000 in the aggregate; (v) Lessee acknowledges its liability to such
Indemnified Person for an indemnity payment in accordance with the provisions of
this SECTION 15 as a result of such claim if and to the extent such Indemnified
Person or Lessee, as the case may be, does not prevail in the contest of such
claim; (w) such Indemnified Person receives from Lessee (i) an indemnity
satisfactory to such Indemnified Person for any liability, expenses or loss
arising out of or relating to such contest and (ii) an opinion of tax counsel
selected by the Lessee and reasonably acceptable to the affected Indemnified
Person to the effect that a reasonable basis exists for contesting such claim,
which opinion shall be in form and substance reasonably satisfactory to such
Indemnified Person and furnished at Lessee's sole expense; (x) Lessee agrees to
pay any expenses that any Indemnified Person may incur in connection with
contesting such claim (including, without limitation, all out-of-pocket costs,
expenses, losses, reasonable legal and accounting fees, disbursements,
penalties, interest and additions to tax); (y) such Indemnified Person obtains
at Lessee's cost an opinion of independent counsel selected by the Lessee and
approved by the
42
affected Indemnified Person (which approval shall not be unreasonably withheld)
to the effect that the action to be taken will not result in any risk of sale,
forfeiture or loss of, or the creation of any Lien (except if Lessee adequately
bonds such Lien or otherwise makes provision to protect the interests of all
Indemnified Persons in a manner reasonably satisfactory to each Indemnified
Person) on, the Aircraft, or any part or portion thereof or any interest therein
or in any way interfere with the timely payment of Rent from time to time
becoming due and payable; and (z) if such contest is conducted in a manner
requiring the payment of the claim, Lessee pays the amount required in order to
contest the claim. Any imposition imposed on an Indemnified Person as a result
of an advance by Lessee of a tax payment or other costs incurred by such
Indemnified Person, pursuant to this paragraph shall be indemnified under this
SECTION 15 without regard to the exclusions in SECTION 15.1.1 and 15 1.2. An
Indemnified Person shall keep Lessee reasonably informed of and shall permit
Lessee to participate in any such proceedings that Lessee does not conduct
itself. If such Indemnified Person obtains a refund of all or any part of any
Imposition paid by Lessee, such Indemnified Person shall pay Lessee, but not
before Lessee makes all payments theretofore due such Indemnified Person
pursuant to this SECTION 15 and any other payments theretofore due under any of
the Operative Documents, an amount, which after taking into account all taxes
saved by such Indemnified Person as a result of the payment of such amount,
shall be equal to the amount of such refund net of reasonable expenses not
previously reimbursed and Impositions payable with respect to receipt thereof,
including interest received attributable thereto; PROVIDED HOWEVER, that
notwithstanding the foregoing portions of this sentence, such Indemnified Person
shall not be obligated to make any payment to Lessee pursuant to this sentence
as long as a Default or an Event of Default exists hereunder, but such payment
shall be held by such Indemnified Person as security for the obligations of
Lessee under the Operative Documents, and at such time as such Default or Event
of Default is later cured, then such Indemnified Person shall make such payments
to Lessee.
(b) Notwithstanding anything contained in this SECTION 15.3 to the
contrary, an Indemnified Person shall not be required to exercise its contest
rights on Lessee's behalf if the subject matter of any claim is of a continuing
nature and has previously been decided adversely (other than as a result of a
settlement) pursuant to the contest provisions of this SECTION 15 unless there
is a Change in Law (including, without limitation, amendments to statutes or
regulations, administrative rulings and court decisions) after such claim has
been so previously decided, and such Indemnified Person receives an opinion,
also addressed to Lessee, of tax counsel selected by the Lessee and approved by
such Indemnified Person (which approval shall not be unreasonably
43
withheld) and furnished at Lessee's sole expense to the effect that, as a result
of such change, it is more likely than not that the position which such
Indemnified Person or Lessee, as the case may be, had asserted in such previous
contest, would prevail.
(c) If, in the course of exercising its contest rights on Lessee's
behalf, an Indemnified Person learns that a taxing authority is willing to agree
to a settlement of a claim, such indemnified Person shall notify Lessee of such
settlement proposal. If the settlement proposal is acceptable to Lessee, Lessee
shall so notify such Indemnified Person and such Indemnified Person shall agree
to the settlement proposal; PROVIDED, HOWEVER, that an Indemnified Person shall
not be obligated to agree to the settlement proposal if such Indemnified Person
releases Lessee from any further obligations pursuant to this SECTION 15 with
respect to such claim and if such Indemnified Person agrees that the amount of
any indemnity payment determined under this SECTION 15 in respect of such claim,
which Lessee shall be required to pay to such Indemnified Person, shall not
exceed the amount of such indemnity payment that would have been required if
such Indemnified Person had agreed to the settlement proposal. If any such
settlement proposal is acceptable to such Indemnified Person but is unacceptable
to Lessee, Lessee shall inform such indemnified Person of the amount for which
Lessee would be willing to settle such claim. If such indemnified Person accepts
the settlement proposal, the amount of any indemnity payment determined under
this SECTION 15 in respect of such claim that Lessee shall be required to pay to
such Indemnified Person shall not exceed the amount for which Lessee would have
been willing to settle such claim.
(d) Nothing contained in this SECTION 15 shall require any Indemnified
Person to exercise its contest rights or permit Lessee to contest a claim which
would otherwise require any Indemnified Person to exercise its contest rights if
such Indemnified Person waives payment by Lessee of any amount that might
otherwise be payable by Lessee under this SECTION 15 by way of indemnity in
respect of such claim. In the event of such waiver, such Indemnified Person
shall promptly return any amounts previously advanced by Lessee pursuant to this
SECTION 15.3, including, without limitation, payment of the Impositions which
were the subject of the claim and reimburse Lessee for amounts previously paid
to such Indemnified Person in respect of expenses incurred in contesting such
claim.
15.4 Each Indemnified Person shall supply Lessee with such information
as may be reasonably requested by Lessee as, in the reasonable opinion of
counsel of such Indemnified Person, will enable Lessee to participate in or
control and conduct any proceeding to the extent permitted by this SECTION 15.
In the event that an Indemnified Person enters into a settlement or other
44
compromise with respect to any imposition without prior written consent of
Lessee (which consent shall not be unreasonably withheld or delayed), such
Indemnified Person shall be deemed to have waived its right to be indemnified
with respect to such Imposition under this SECTION 15.
15.5 If by reason of any Impositions paid or indemnified against by
Lessee under this SECTION 15 any Indemnified Person thereafter shall realize, in
its sole opinion, a tax benefit (whether by means of a credit, deduction or
otherwise) that results in a reduction in Impositions, then such Indemnified
Person shall, to the extent it can do so without prejudice to the retention of
the amount of such benefit, pay to Lessee the amount which (after adjustment for
any further tax savings or tax liability realized by such Indemnified Person as
a result of the payment thereof) such Indemnified Person, in its reasonable
business judgment, determines to equal the amount of such reduction in
Impositions (such Indemnified Person's payment of such amount, absent manifest
error, being conclusive evidence of the amount so owing to Lessee), EXCEPT that
such Indemnified Person shall not be obligated to make any payment pursuant to
this sentence to the extent the amount of such payment would exceed (x) the
amount of all prior payments in respect of such. Impositions by Lessee to such
Indemnified Person pursuant to this SECTION 15, less (y) the amount of all prior
payments in respect of such Impositions by such Indemnified Person to Lessee
pursuant to this SECTION 15.
15.6 In the event Lessee shall fail to make any payment or to do any
act as provided in this SECTION 15, then Lessor shall have the right, but not
the obligation, without notice to or demand upon Lessee, and without releasing
Lessee from any obligation in this SECTION 15, to make or do the same, and to
pay, purchase, contest or compromise any encumbrance, charge or lien which in
Lessor's judgment places Lessor's title to the Aircraft, Lessor's interest in
the Aircraft, or Lessee's possession of the Aircraft in jeopardy and in
exercising any such rights, incur any liability and expend whatever reasonable
amounts Lessor, in its absolute discretion may deem necessary therefor. All sums
so incurred or expended by Lessor shall be, without demand, immediately due and
payable by Lessee and shall bear interest at the Base Rate or such lesser amount
as may represent the maximum rate permitted by Applicable Law.
15.7 In the event Lessee shall be obligated to indemnify any
Indemnified Person pursuant to this SECTION 15, Lessee shall be subrogated to
the rights of the Person indemnified in respect of the matter as to which the
indemnity was paid.
15.8 For purposes of this SECTION 15, "Indemnified Person" shall
include all corporations making a consolidated or
45
combined return in which an Indemnified Person is included and the agents,
employees, servants, successors and assigns of any thereof.
15.9 Lessee shall furnish Lessor within sixty (60) days after the end
of each calendar year included in the whole or in part of the Term, a report
with respect to the location of the Aircraft during such calendar year in
sufficient detail to enable Lessor to determine the portions of its income and
deductions with respect to the transaction contemplated by the Operative
Documents appropriately treated as attributable or allocable to sources within
and without the United States within the meaning of Section 861-863 of the Code.
Also, during the Term hereof, Lessee agrees to maintain or cause to be
maintained such reasonable and customary records, and provide or cause to be
provided such reasonable and customary information, to enable Lessor to fulfill
any of its tax filing obligations, including without limitation, copies of all
log books. Upon written request of Lessor, Lessee also will promptly and duly
execute and deliver or cause to be duly executed and delivered, to Lessor or
cooperate in filing with the appropriate governmental authority, such further
reasonable and customary documents and assurances and take such further
reasonable and customary action as Lessor may from time to time reasonably
request in order more effectively to carry out the intent and purpose of this
Lease and to protect Lessor's right to the anticipated income tax consequences
contemplated by the Operative Documents.
15.10 The provisions of this SECTION 15 shall survive the expiration
or termination of this Lease and the other Operative Documents.
Section 16. FURTHER ASSURANCES, RECORDATION, TITLE, REGISTRATION
Lessee shall cooperate with Lessor in connection with the filing and
recording of this Lease and Lease Supplements thereto, including but not limited
to Lease Supplement No. 1, and any other document reasonably requested by
Lessor, and the maintenance of the recordation thereof under the Transportation
Code and in such other public offices as may be deemed necessary and appropriate
by FAA Counsel or by Lessor or Lessor's counsel in order to protect the rights
and interests of Lessor hereunder and to perfect such rights and interests of
Lessor in and to this Lease and the Rents due and to become due hereunder and
will not register nor permit the registration of the Aircraft under the laws of
any jurisdiction outside the United States. Lessee shall not do any act or take
or direct any Person to take any action which might cause the Aircraft to be
ineligible for registration under the Transportation Code. Lessee shall, at its
expense, cooperate and assist in accomplishing all recording, registrations and
filings of this Lease, and any of
46
the Operative Documents and any mortgage, security interest, waiver, license,
permit or certificate incident thereto, required by law or deemed reasonably
necessary by Lessor to protect its interest in the Aircraft, and shall furnish
Lessor with satisfactory evidence of each such recording, registration and
filing, including without limitation, evidence that continuation statements have
been filed with respect to all financing statements filed pursuant to this
SECTION 16. Lessee shall from time to time do and perform such other acts and
execute such other and further instruments as may be required by law or
reasonably be requested by Lessor, including such legal opinions as may
reasonably be required by Lessor, to establish, maintain and protect Lessor's
rights and remedies and to carry out the effect, intent and purpose of this
Lease.
Section 17. INSPECTION, REPORTS, AUDITS.
17.1 Lessor and its authorized representatives may inspect (subject to
Lessee's reasonable requirements regarding security), at their own expense, the
Aircraft and the books and records of Lessee with respect thereto, and make
copies and extracts therefrom, and may discuss Lessee's affairs, finances, and
accounts relating to the Aircraft and Lessee's operation, with its officers, and
Lessee shall furnish to Lessor statements accurate in all material respects
regarding the condition and state of repair of the Aircraft, all upon such
reasonable notice and at such reasonable times during normal business hours and
as often as may be reasonably requested and all at the expense of Person
requesting the same. Lessor shall have no duty to make any such inspection or
inquiry or incur any liability or obligation by reason of not making any such
inspection or inquiry. Lessee may condition any such inspection or inquiry upon
the agreement of the Person requesting inspection to maintain the same standard
of confidentiality with respect to information so obtained as customarily
applies to such Person's own confidential information.
17.2 Lessee shall furnish to Lessor the following:
(a) QUARTERLY STATEMENTS. As soon as practicable after the end of
each quarterly fiscal period in which a quarterly report is prepared
in each fiscal year of Lessee and in any event within forty-five (45)
days thereafter (but in no event later than such information is made
generally available to the shareholders of Lessee), duplicate copies
of:
(1) A consolidated balance sheet of Lessee and its
consolidated subsidiaries as of the end of such quarter, and
47
(2) Consolidated statements of income and if available, cash
flows of Lessee and its consolidated subsidiaries for such
quarter and (in the case of the second and third quarters) for
the portion of the fiscal year ending with such quarter setting
forth in comparative form the figures for the corresponding
periods in the previous fiscal year, all in reasonable detail and
certified as complete and correct, subject to changes resulting
from year-end adjustments, by a principal financial officer of
Lessee;
(b) ANNUAL STATEMENTS. As soon as practicable after the end of
the fiscal year of Lessee, and in any event within one hundred twenty
(120) days thereafter (but in no event later than such information is
made generally available to the shareholders of Lessee), duplicate
copies of:
(1) Consolidated balance sheet of Lessee and its
consolidated subsidiaries at the end of such year;
(2) Consolidated statements of income and if available, cash
flows of Lessee and its consolidated subsidiaries for such year,
setting forth in each case in comparative form the figures for
the previous fiscal year, all in reasonable detail and
accompanied by an opinion, if available, thereon of independent
certified public accountants of recognized national standing
selected by Lessee stating that such financial statements fairly
represent the financial condition of the companies being reported
upon, have been prepared in accordance with generally accepted
accounting principles consistently applied (except for changes in
application described); and
(3) If an opinion from an independent certified public
accountant is not available for Lessee separately, this SECTION
17.2(b) is applicable for the consolidated statements of its
parent company;
(c) AUDIT REPORTS. Promptly upon receipt thereof one copy of each
other report submitted to Lessee or any subsidiary thereof by
independent accountants in connection with any annual, interim or
special audit made by them of the books of the Lessee or of any
subsidiary; and
48
(d) CERTAIN OTHER REPORTS. As soon as practicable:
(1) after the end of each quarterly period as defined in
SECTION 17.2(a) or annual period as defined in SECTION 17.2(b),
duplicate copies of any report or statement required pursuant to
the Securities Exchange Act of 1934 or the rules or regulations
promulgated thereunder,
(2) after it becomes available, any filing, statement,
report, registration, prospectus or other document prepared
pursuant to the Securities Act of 1933 or pursuant to the rules
and regulations thereunder,
(3) any other reports made publicly available to
shareholders of the Lessee,
(4) if requested by Lessor, any or all operating plans,
business plans, traffic reports, forecasts of business or
forecasts of traffic, and
(5) such information as may be readily obtainable by Lessee
which is required to enable Lessor to file any reports required
by any Governmental Body as a result of its interests in the
Aircraft.
All of the reports described in SECTIONS 17.2(a), (b), (c) and (d)
(4) shall be treated as confidential by Lessor and not revealed to any party
without the prior written consent of Lessee, except that Lessor may disclose
such reports to potential purchasers of the Aircraft if it obtains and delivers
to Lessee the same agreement with respect to confidential treatment of such
reports, all in form and substance reasonably satisfactory to Lessee.
Section 18. DEFAULTS, REMEDIES, DAMAGES.
18.1 Each of the following described events shall be an Event of
Default (whether any such event shall be voluntary or involuntary or come about
or be effected by operation of law or pursuant to or in compliance with any
Applicable Law of any Governmental Body):
18.1.1 Lessee fails to make when due any payment of Base Rent
or Stipulated Loss Value or any other sum payable under this Lease and such
failure to pay continues for seventy-two (72) hours after the date when the same
becomes due;
49
18.1.2 Lessee fails at any time to procure or maintain or
comply with any insurance coverage prescribed herein or such insurance is for
any reason not in full effect; PROVIDED that any such failure shall not
constitute an Event of Default so long as the Aircraft shall not be operated at
any time when such insurance is not in effect, the Aircraft continues to be
covered by such insurance as is required when the aircraft is on the ground and
such failure to maintain insurance is for a period of not more than thirty (30)
days;
18.1.3 Lessee fails to observe or perform any of the covenants,
conditions, agreements or warranties to be performed or observed by Lessee under
the Lease or any other Lessee Document other than a covenant, condition, or
agreement specified in SECTIONS 18.1.1 OR 18.1.2 above, and such failure
continues for ten (10) days after the earlier of (a) Lessee obtaining actual
knowledge or such failure or (b) notice thereof from Lessor; PROVIDED, HOWEVER,
(i) removal of the Aircraft at any time from those locations permitted by this
Lease and (ii) except as provided for in SECTION 11.1 (iii) and SECTION
12.2(VI), if the Aircraft is not in material compliance with the Maintenance
Program or is not in such operating condition as may be necessary to enable the
Airworthiness Certificate of the Aircraft to be maintained, or so as to permit
the uninterrupted use or operation of the Aircraft, after Lessee with reasonable
diligence should have obtained actual knowledge thereof and it is not remedied
immediately upon obtaining such knowledge, shall constitute an immediate Event
of Default;
18.1.4 Any representation or warranty of Lessee contained in
this Lease, or in any document or certificate furnished by Lessee pursuant
hereto or thereto proves to be untrue or incorrect in any material respect when
made or repeated, and, if capable of being cured and Lessee is diligently
proceeding to so cure, such untruthfulness or incorrectness shall continue to be
unremedied for a period of fifteen (15) days after written notice thereof by
Lessor; provided, however, in no event shall Lessee have any cure rights
pursuant to this Section 18.1.4 if such untrue or incorrect representation or
warranty was knowingly made by Lessee;
18.1.5 Lessee consents to the appointment of a receiver,
custodian, trustee, liquidator or other officer with similar powers, of itself
or of a substantial part of its property, is generally unable to pay debts as
they become due unless such debts are the subject of a bona fide dispute, or
admits in writing its insolvency or bankruptcy or its inability to pay its debts
generally as they become due or makes an assignment for the benefit of
creditors, or files a petition in bankruptcy or a petition or an answer seeking
reorganization in a proceeding under any bankruptcy laws (as now or hereafter in
effect) or a readjustment of its indebtedness or an answer admitting the
material allegations of a
50
petition filed against Lessee in any such proceeding, or petitions, answers or
consents to seek relief under the provision of any bankruptcy or other similar
law, or an agreement, composition, extension or adjustment with its creditors;
18.1.6 An order, judgment or decree is entered by any court of
competent jurisdiction appointing, without the consent of Lessee, a custodian,
receiver, trustee, liquidator or other officer with similar powers, with respect
to Lessee or of any substantial part of its property, or any substantial part of
the property of Lessee is sequestered, and any such order, judgment or decree of
appointment or sequestration remains undismissed, unstayed or unvacated, for a
period of sixty (60) days after the date of entry thereof;
18.1.7 A petition against Lessee in a proceeding under the
bankruptcy laws or other insolvency laws as now or hereafter in effect, is
filed, and any decree or order adjudging Lessee a bankrupt or insolvent in such
proceedings, remains in force, unstayed for a period of sixty (60) days
thereafter, or, in the case where the approval of such a petition by the court
of competent jurisdiction is required by the petition as filed or amended is
approved as filed by such court and such approval is not withdrawn or the
proceedings dismissed within sixty (60) days thereafter, or if, under the
provision of any law providing for reorganization or winding up of corporations
which may apply to Lessee, any court of competent jurisdiction assumes
jurisdiction, custody or control of Lessee or of any substantial part of its
property and such jurisdiction, custody or control remains in force
unrelinquished, unstayed or unterminated for a period of sixty (60) days;
18.1.8 Lessee or any Affiliate of Lessee; is in default, and
such default continues unremedied for five (5) days, with respect to any
material indebtedness, lease obligation or material contract of Lessee or any
Affiliate of Lessee;
18.1.9 Any uninsured final judgment for the payment of money
aggregating in excess of $150,000 is rendered against Lessee and the same
remains outstanding and unstayed or undischarged for a period of thirty (30)
days thereafter, during which period execution of such judgment is not
effectively stayed, bonded or insured;
18.1.10 Any assertion by Lessee or through any other Person on
behalf of Lessee of the invalidity or unenforceability of all or any part of
this Lease (not including an assertion by Lessee that performance by Lessee is
not required due to a breach or a nonperformance by Lessor or any other Person
of its obligations hereunder or under any other Operative Documents);
51
18.1.11 Due to the act or omission by Lessee, any document or
instrument required to be filed or recorded in accordance with SECTION 11.1 or
SECTION 16 hereof is not duly filed or recorded at such time and at such place
or places as required under SECTION 11.1 or SECTION 16 to perfect or continue
the perfection of the interest of Lessor or any other Person in and to the
Aircraft; or
18.1.12 Any transfer by Lessee of possession of the Airframe or
any Engine or Propeller to any Person other than in accordance with SECTIONS 11
OR 20 which continues unremedied for at least fifteen (15) days.
18.2 Upon the occurrence of any one or more of the above
described Events of Default and at any time thereafter so long as the same shall
be continuing, Lessor may, at its option, declare this Lease to be in default,
and at any time thereafter, Lessor may exercise, and Lessee shall comply with,
any or all of the following rights and remedies with respect to all or any part
of the Aircraft:
18.2.1 Cause Lessee, upon the written demand of Lessor and at
Lessee's expense and risk, to assemble and return promptly or store, and Lessee
shall assemble and return promptly or store, all or such part of the Aircraft as
Lessor may so demand, to Lessor or its older in the manner and condition
required by, and otherwise in accordance with all the provisions of SECTION 19,
or Lessor, at its option, may enter upon the premises where all or any part of
the Aircraft is located and take immediate possession of and remove the same
together with any engine or propeller which is not an Engine or Propeller but
which is installed on the Airframe, subject to all of the rights of the owner,
lessor, lienor or secured party with respect to such engine or propeller, by
summary proceedings, by self-help, or otherwise.
The return and storage of the Aircraft as hereinbefore and
hereinafter provided are of the essence of this Lease, and upon application to
any court of equity having jurisdiction in the premises, Lessor shall be
entitled to a decree against Lessee requiring specific performance of the
covenants of Lessee so as to return and store the Aircraft as provided in this
SECTION 18.2.1 and in SECTION 19.
18.2.2 Proceed by appropriate court action, or actions, either
at law or in equity, to enforce performance by Lessee of the applicable
covenants of this Lease or to recover damages for the breach thereof, and it is
expressly agreed that the right to resort to any such court action is a remedy
given to Lessor in addition to, and not in lieu of, any other remedies given
52
to Lessor under this Lease other than those provided for in SECTION 18.2.5;
18.2.3 Give notice to Lessee specifying the occurrence giving
rise to such Event of Default, and stating that this Lease shall expire and
terminate on the dates specified in such notice, and on the date so specified
(if any such Event of Default shall be continuing), subject to the provisions
hereof relating to the survival of Lessee's obligation, this Lease shall expire
and terminate (hereinafter such expiration and termination sometimes being
referred to as "premature termination") and all rights of Lessee under this
Lease shall absolutely cease and terminate but Lessee shall return the Aircraft
in accordance with SECTION 18.2.1 above, PROVIDED, HOWEVER, in the event Lessee
fails to promptly return the Aircraft, Lessor may take or cause to be taken by
its agent or agents immediate possession of the Aircraft without any liability
to Lessor to return any Rent theretofore paid hereunder and free and clear of
any claims of Lessee whatsoever, and may remove the same from the possession and
use of the Lessee, and for such purpose may enter onto Lessee's premises where
the Aircraft may be located and may use and employ in connection with such
removal any supplies, services, means or other facilities of Lessee with or
without process of law, and Lessee hereby expressly agrees and consents to the
foregoing;
18.2.4 With or without taking possession thereof sell, at one
or more public or private sales, at such times and places, to such persons
(including Lessor) and without notice, or otherwise dispose of, use, operate,
Lease or hold, all or any part of the Aircraft as Lessor may decide, free and
clear of any rights of Lessee, and without any duty to account to Lessee with
respect to such action for any proceeds thereof (except to the extent required
by the provisions of SECTION 18.2.5 below) and to hold the Lessee liable for any
installment of Rent due on or before the date of such sale to the extent such
Rent covers the period up to the date of such sale, or hold, use, operate, Lease
to others or keep idle all or any part of the Aircraft as Lessor may determine,
in each case free and clear or any rights of Lessee except as hereinafter set
forth in this SECTION 18 and without any duty to account to Lessee with respect
to such action or inaction;
18.2.5 In order to preserve for Lessor the benefits intended by
the transactions contemplated by the Lease and the Lessee Documents, recover
from Lessee as liquidated damages for loss of bargain and not as a penalty,
which Lessor shall be deemed to have sustained by reason of Lessee's breach of
this Lease or any other Lessee Document, and to that end, Lessor, at its option
without prejudice to any other remedies to which it may be entitled, may
exercise any of the following remedies under either
53
clause (i), (ii) or (iii) below, but not under more than one of such clauses:
(i) Whether or not Lessor has exercised, or at any time
exercises, any of its rights under SECTIONS 18.2.1 OR 18.2.4 above with respect
to all or any part of the Aircraft, Lessor, by written notice to Lessee
specifying a payment date, which shall be a Base Rent Payment Date not earlier
than ten (10) days from the date of such notice, in order to preserve for Lessor
the benefits intended by the transactions contemplated by the Lease and the
Lessee Documents, shall demand that Lessee pay to Lessor, and Lessee shall pay
to Lessor, on the payment date specified in such notice, as liquidated damages
for loss of bargain and not as a penalty (in lieu only of Base Rent for the
Aircraft due after the payment date specified in such notice), any unpaid Rent
for the Aircraft due on or prior to the payment date specified in such notice,
plus whichever of the following amounts Lessor, in its sole discretion, shall
specify in such notice (together with interest, if any, at the Overdue Rate on
the amount of any such unpaid Rent and on such specified amount from the
respective due dates to and including the actual date of payment): (A) an amount
equal to the excess, if any, of (1) the Stipulated Loss Value for the Aircraft
or part thereof, computed as of the payment date specified in such notice, plus
the unpaid accrued Base Rent as of such Base Rent Payment Date, over (2) the
aggregate Fair Market Rental Value of the Aircraft, or part thereof fox the
remainder of its economic useful life after such specified payment date, after
discounting such aggregate Fair Market Rental Value quarterly to present worth
as of such specified payment date at a rate of six (6%) per annum; or (B) an
amount equal to the excess, if any, of (1) the sum of the Stipulated Loss Value
for the Aircraft or part thereof plus to the extent not otherwise payable under
this clause (i) the unpaid accrued Base Rent as of such Base Rent Payment Date,
over (2) the Fair Market Sale Value of the Aircraft or part thereof as of the
payment dated specified in such notice;
(ii) If Lessor, pursuant to SECTION 18.2.4 above, sells all
or any part of the Aircraft, Lessor may, if it so elects, demand that Lessee pay
Lessor, and Lessee shall pay to Lessor, on the date of such sale, as liquidated
damages for loss of bargain and not as a penalty (in lieu only of Base Rent for
the Aircraft due after the date on which such sale occurs), any unpaid Rent for
the Aircraft due on or prior to the date on which such sale occurs plus the
amount of any excess of (A) the Stipulated Loss Value of the Aircraft or part
thereof, computed as of the Base Rent Payment Date immediately preceding the
date on which such sale occurs, or the first Base Rent Payment Date in the event
of a sale prior thereto, plus the unpaid accrued Base Rent as of such Base Rent
Payment Date, plus interest thereon at the Overdue Rate from such Base Rent
Payment Date to the date of such sale over (B) the net
54
proceeds of such sale. Lessee shall also pay to Lessor interest at the Overdue
Rate on the amount of any such deficiency from the respective due date to and
including the date of actual payment;
(iii) By notice to Lessee, Lessor may, in lieu of exercising
its rights under SECTION 18.2.4 above, demand that Lessee pay on demand to
Lessor, and Lessee hereby agrees that it will so pay to Lessor, as liquidated
damages for loss of bargain and not as a penalty (in lieu only of Base Rent for
the Aircraft due or accrued after the payment date specified in such notice),
any unpaid Rent for the Aircraft due or accrued on or prior to the payment date
specified in such notice plus an amount equal to Stipulated Loss Value for the
Aircraft computed as of the immediately preceding Base Rent Payment Date;
and upon such payment of liquidated damages and the payment of all other Rent
then due hereunder, Lessor shall, or shall cause the appropriate party to,
convey forthwith to Lessee by ▇▇▇▇ of sale all of its right, title and interest
in and to the Aircraft on an "AS-IS", "WHERE-IS" basis and without recourse or
warranty, except that the Aircraft shall be free and clear of Lessor Liens,
including the Lien of the Loan Agreement, and with no obligation to deliver
possession if the Aircraft has not been returned to Lessor in accordance with
SECTION 18.2.1 above.
18.2.6 OTHER REMEDIES. In lieu of or in addition to (to the
extent not inconsistent with) any of the foregoing remedies, Lessor may (i)
terminate this Lease as to the Aircraft, (ii) proceed by appropriate court
action to enforce the terms hereof or to recover damages for the breach hereof
as provided in SECTION 18.2.2, and (iii) exercise any other right or remedy
which may be available to it under Applicable Law.
18.2.7 CONCERNING REMEDIES. In addition to the other
obligations of Lessee under this SECTION 18, Lessee shall be liable, except as
otherwise provided 1n this SECTION 18, and to the extent not paid pursuant to
the other provisions of this SECTION 18, for any and all unpaid Rent due
hereunder, after or during the exercise of any of the foregoing remedies, for
any and all Supplemental Rent due hereunder, and for all legal fees (including
the allocated time charges of internal counsel) and other reasonable costs and
expenses incurred by reason of the occurrence of any Event of Default, or the
exercise of Lessor's remedies with respect thereto, including all reasonable
costs and expenses incurred in connection with repossession, transportation,
storage, maintenance and insurance of the Aircraft and in placing the Aircraft
in the condition and airworthiness required by SECTION 19. At any sale of the
Aircraft or any part thereof pursuant to this SECTION 18, Lessor may bid cash
for the purchase of such property. Except as otherwise expressly provided above,
no remedy referred to
55
in this SECTION 18 is intended to be exclusive, but each shall be cumulative and
in addition to any other remedy referred to above or otherwise available to
Lessor at law or in equity, and the exercise or beginning of exercise of any one
or more of such remedies shall not be deemed an election of such remedies and
shall not preclude the simultaneous or later exercise by Lessor of any or all of
such other remedies.
18.2.8 WAIVERS. TO THE FULL EXTENT THAT LESSEE AND LESSOR
MAY LAWFULLY AGREE, LESSEE AND LESSOR HEREBY WAIVE THE BENEFIT OF ANY PROVISION
OF LAW NOW OR HEREAFTER IN EFFECT WHICH RENDERS ANY PROVISION HEREOF PROHIBITED
OR UNENFORCEABLE IN ANY RESPECT. NO EXPRESS OR IMPLIED WAIVER BY LESSOR OR
LESSEE OF ANY EVENT OF DEFAULT SHALL IN ANY WAY BE, OR BE CONSTRUED TO BE, A
WAIVER OF ANY FUTURE OR SUBSEQUENT EVENT OF DEFAULT.
18.3 Whenever a determination of Fair Market Sale Value or
Fair Market Rental Value is required by any provision of this Lease, Lessor
shall appoint a recognized independent aircraft appraiser selected by Lessor to
determine the Fair Market Sale Value or Fair Market Rental Value of the Aircraft
and shall advise Lessee of such appointment in its notice that Lessor has
exercised its rights and remedies in accordance with this Lease. Within fifteen
(15) days after receipt of such written notice from Lessor, Lessee shall deliver
to Lessor a written notice appointing a recognized independent aircraft
appraiser selected by Lessee to determine the Fair Market Sale Value or Fair
Market Rental Value of the Aircraft. If Lessee fails or refuses to appoint, for
any reason whatsoever, an appraiser to determine the Fair Market Sale Value or
Fair Market Rental Value of the Aircraft within fifteen (15) days after receipt
of written notice from Lessor advising Lessee of the appointment of an appraiser
by Lessor, the decision of the appraiser appointed by Lessor as to the Fair
Market Sale Value or Fair Market Rental Value of the Aircraft shall in all cases
be binding and conclusive on Lessor and Lessee. The appraisers appointed by
Lessor and Lessee pursuant to this SECTION 18.3 shall meet promptly to determine
the Fair Market Sale Value or Fair Market Rental Value of the Aircraft. If
within fifteen (15) days after Lessee selects its appraiser the two appraisers
selected by Lessor and Lessee, respectively, are unable to agree on the Fair
Market Sale Value or Fair Market Rental Value of the Aircraft, a third
recognized independent aircraft appraiser shall be chosen within fifteen (15)
days thereafter by the mutual agreement of such first two appraisers, or if such
first two appraisers fail to agree on the appointment of a third appraiser
within such fifteen (15) day period, such appointment shall be made by the
American Arbitration Association (or any organization which is successor
thereto). The decision of the appraisers so appointed and chosen shall be given
within fifteen (15) days after the selection of such third appraiser. Any
decision in which any two appraisers so
56
appointed and acting hereunder concur shall in all cases be binding and
conclusive on Lessor and Lessee and, in the event that there are three
appraisers and no two of such appraisers shall be able to concur in the
decision, then the simple arithmetic average of the appraisals arrived at by the
three (3) appraisers shall in all cases be binding and conclusive on Lessor and
Lessee. Lessee shall pay the fees and expenses of appraisal. The Fair Market
Sale Value or Fair Market Rental Value of the Aircraft shall be determined by
the appraisers as of the date of premature termination on the assumption (i)
that the Aircraft will, on such date, be equipped with the Airframe, the Engines
and the Propellers, and that the Airframe, the Engines and the Propellers will
otherwise be in such condition as would be required by this Lease and (ii) if
the time remaining on the Airframe, the Engines, the Propellers, the components
and/or the Parts on the day of premature termination is less than the time
required to be remaining thereon in accordance with the provisions of SECTION 19
hereof and/or the Airframe, the Engines, the Propellers, and/or the Parts
thereof otherwise do not meet the standards contemplated and required under
SECTION 19 hereof or if the condition of the Aircraft does not fully comply with
the requirements of this Lease, that the Aircraft will fully comply with the
requirements of this Lease.
18.4 Lessor may, at its election, waive any Event of Default, and
its consequences, and rescind and annul any such notice of termination by notice
to Lessee in writing to that effect within sixty (60) days after delivery of any
such notice of termination, and thereupon the respective rights of the parties
shall be as they would have been if no Event of Default had occurred and no such
notice had been given. Notwithstanding the provisions of this SECTION 18.4, it
is expressly understood and agreed by Lessee that no express or implied waiver,
recision or annulment by Lessor shall in any way be, or be construed to be, a
waiver of any other past, future or subsequent Event of Default, nor shall any
such express or implied waiver, recision, or annulment by Lessor extend to or
affect any other or subsequent default or impair any rights or remedies
consequent thereto.
l8.5 Each and every power and remedy herein specifically given to
Lessor shall be in addition to every other power and remedy specifically so
given or now or hereafter existing at law or in equity, and each and every power
and remedy may be exercised from time to time or simultaneously as often as and
in such order as may be deemed expedient by Lessor. Lessor's acceptance of any
payment, whether partial or otherwise, after it shall become due hereunder shall
not be deemed to alter, affect or waive the obligations of Lessee or Lessor's
rights hereunder. All powers and remedies shall be cumulative and the exercise
of one shall not be deemed a waiver of the right to exercise any other or
others. No delay or omission of Lessor in the exercise of any right or remedy
57
hereunder shall impair any power or remedy or shall be construed to be a waiver
of any Default or acquiescence therein. If any Event of Default shall occur,
Lessor shall be entitled to recover reasonable costs and expenses, including,
without limitation, attorneys fees, as are incurred by Lessor in the enforcement
of any right or privilege hereunder, plus interest thereon at the Overdue Rate
from the date such costs and expenses were expended or incurred by Lessor until
paid by Lessee.
18.6 To the fullest extent Lessee may lawfully agree, Lessee
hereby agrees in accordance with Section 1110 of the Bankruptcy Code as amended
from time to time (or any successor or superseding statute as amended) that
legal title to, and ownership by Lessor of, the Aircraft and each Engine and
Propeller, and any right of Lessor or any party designated by Lessor under the
Lease, to take possession of the Aircraft, the Engines and Propellers in
compliance with the provision of this Lease or the Lease shall not be affected
by and Lessee waives any rights under Sections 362 or 363 of the Bankruptcy Code
or any other analogous provisions of any succeeding or superseding statute, as
amended from time to time, or any similar provision, insolvency, reorganization
or similar law affecting the rights of creditors generally which are
inconsistent with Section 1110 of the Bankruptcy Code. Lessee further agrees
that Lessor and each assignee of Lessor shall have the rights and benefits given
to a lessor and/or a secured party under Section 1110 of the Bankruptcy Code.
Section 19. RETURN OF AIRCRAFT AND RECORDS.
19.1 RETURN OF AIRCRAFT. Upon the expiration or earlier
cancellation or termination of the Term of this Lease, (other than as a result
of an Event of Loss), or of any storage period provided for herein, Lessee shall
return the Aircraft to Lessor, free and clear of all Liens except Lessor Liens
and any other Liens created in accordance with the Operative Documents, and
Liens not created, incurred, assumed or existing through any action or inaction
by Lessee, in the same operating order, repair and condition, ordinary wear and
tear excepted, and appearance as when received. Lessee shall pay for any repairs
and refurbishing necessary to restore the Aircraft to such condition, ordinary
wear and tear excepted. At the expiration of the Term of this Lease or upon the
earlier cancellation or termination of this Lease pursuant to the terms hereof,
Lessee, at its own risk and expense, shall return the Aircraft by delivering the
same to Lessor at any airport designated by Lessor within the continental
confines of the United States that is situated within five hundred (500) miles
of any airport on Lessee's route system. The Aircraft shall, at that time,
satisfy all the following conditions:
58
(a) CERTIFICATION. The Aircraft shall have a valid Airworthiness
Certificate and shall have been continuously and currently maintained in
compliance with the requirements of the Airframe, Engine and Propeller
manufacturers' approved maintenance programs or Lessee's Maintenance Program
for Airframe, Engines and Parts.
(b) OVERHAUL AND REPAIR. With respect to repairs and overhaul of the
Airframe and all Engines, Propellers and Parts (whether performed as required
hereunder or otherwise), such repairs and overhaul shall be documented to
have been repaired or overhauled by certified FAA repair stations or by those
approved by the FAA through reciprocal agreements and such overhaul and
repair shall also be consistent with the respective manufacturer's
instructions for such Engines, Propellers and Parts, and in the case of the
Airframe, in accordance with the latest Saab MRB Manual.
All overhaul and repair procedures shall be further verified to meet all
FAA requirements for quality and documentation necessary to enable immediate
transferal to operation within the continental limits of the United States
under FAR Part 135.
(c) REPAIRS. Lessee shall ensure that all major repairs performed since
the Delivery Date and which still are in existence on the Aircraft are in
conformity with the manufacturer's Structural Repair Manual ("SRM") and have
or are immediately eligible to receive FAA approval, if so required by
Lessor. All such repairs shall be accompanied by all data and documentation
necessary to substantiate their certification and approval by the FAA, as
required by Lessor.
(d) MODIFICATIONS. A11 modifications performed since the Delivery Date
which deviate from the certified configuration and which are still in
existence on the Aircraft shall have approval or certification by the FAA or
Person(s) authorized by the FAA to grant such approval or certification or be
removed by Lessee unless otherwise deemed acceptable in writing by Lessor in
its sole discretion. All such modifications shall be accompanied by complete
data and documentation necessary to substantiate their certification and
approval by the FAA or Person(s) authorized by the FAA to grant such approval
or certification.
(e) AIRWORTHINESS DIRECTIVES. All FAA Airworthiness Directives and
amendments or changes to the FARs applicable to the Aircraft, Engines,
Propellers or Parts shall have been accomplished in compliance with the
issuing agency's specific instructions of the FAA or Person(s) authorized by
the FAA to
59
grant such approval or certification. Airworthiness Directives which allow
temporary compliance by inspection, but have a mandatory terminating
compliance within six (6) months following return (except that in the case of
a cancellation or early termination of the Lease, such period shall instead
be twelve (12) months) shall have such terminating compliance complete.
(f) RECORDS. All records necessary and required by the FAA to certify and
place the Aircraft on an FAA-approved maintenance program shall be delivered
with the Aircraft. If hard, non-computerized, copies of maintenance records
are not available, then Lessee shall take action with pertinent regulatory
agencies to ensure that Lessor and the FAA are provided with all requested
guarantees of methods of compliance, component overhaul and management,
scheduling, quality control, serial number verification, etc. These records
shall be all inclusive to the Airframe, Engine, Propellers and Parts.
All Parts identified with safe life limits shall be identified with their
service histories, accumulated cycles or flight hours as applicable and
remaining service lives on a separate listing.
All components and assemblies which are identified on the maintenance
records by part numbers and serial numbers other than the manufacturers'
shall be provided with interchange or cross reference listing necessary to
establish complete traceability.
All documentation, flight, and maintenance records as specified by FARs
91.173, 91.174, and each paragraph of 121.380 which normally accompany the
transferal of an aircraft which has been operating in regulated commercial
air service, shall be delivered to Lessor with the Aircraft.
In the event of missing, incomplete, or unacceptable records, Lessee shall
re-accomplish the tasks necessary to produce such records in accordance with
its approved maintenance programs prior to delivery of the Aircraft.
All documentation and records shall be made available to Lessor for review
at a central location a minimum of thirty (30) Business Days prior to the
required date of Aircraft delivery to Lessor.
(g) SCHEDULED MAINTENANCE - AIRFRAME. Lessee will be responsible for
ensuring that the Aircraft meets the following
60
conditions to facilitate transference of the Airworthiness Certificate and
establish a maintenance halftime Aircraft:
C Check: A full C Check shall have been performed on the Aircraft
in compliance with Lessee's Maintenance Program immediately
prior to delivery, or the Aircraft shall not have been used
since the completion of such C Check prior to delivery.
Structure Program The Aircraft shall have either (1) more than one-half
(1/2) time remaining until the next scheduled
structural program inspection, (2) at least two
thousand four hundred (2,400) hours remaining until the
next scheduled structural program inspection or (3) at
least three thousand (3,000) cycles remaining until the
next scheduled structural program inspection. In the
event that this check is performed in phases in
conjunction with the C Check, the current phase shall
be performed with the required return condition C
Check.
Airworthiness All airworthiness limitations checks shall
Limitations: be current
In the event that scheduled intervals change during the term of the Lease,
Lessee shall insure that all major checks under Lessee's Maintenance Program,
structural inspection program, heavy maintenance visit, or other designators
are (a) performed in accordance with the Saab MRB Manual, (b) are current at
the time of return to Lessor and (c) shall either (1) be in at least one-half
(1/2) time condition, (2) have at least two thousand four hundred (2,400)
hours remaining or (3) have at least three thousand (3,000) cycles remaining.
(h) SCHEDULED MAINTENANCE - ENGINES. Upon return of the Aircraft, each of
the Engines attached to the Aircraft shall either be (a) current under a
valid ECMP program, in which case each of such Engines shall be eligible for
a successor ECMP program between General Electric Company and Lessor or a new
lessee without any penalties or costs to Lessor, and Lessee shall use its
best efforts to have Lessee's ECMP program assigned to Lessor or a new lessee
without any penalties or costs to Lessor or (b) current under any alternative
engine care and maintenance program that Lessee has established after review
and approval by Lessor, in which case each of such Engines shall be eligible
to continue under
61
such program or an ECMP program without any penalties or costs to Lessor
or a new lessee.
(i) SCHEDULED MAINTENANCE - PROPELLERS, PARTS, COMPONENTS AND ASSEMBLIES.
All Propellers, Parts, components and assemblies that are subject to
regulated life limits shall either (1) be in at least one-half (1/2) time
condition, (2) have at least two thousand four hundred (2,400) hours
remaining or (3) have at least three thousand (3,000) cycles remaining.
(j) SCHEDULED MAINTENANCE - OTHER CHECKS. Any scheduled maintenance or
inspections, in addition to those specified in SECTION 19.1(g). 19.1(h) AND
19.1(i).(e.g., unequally loaded phase checks, airworthiness limitations,
corrosion control program, etc.) shall either (1) be in at least one-half
(1/2) time condition, (2) have at least two thousand four hundred (2,400)
hours remaining or (3) have at least three thousand (3,000) cycles remaining.
(k) DEFERRED MAINTENANCE. There shall be no open, outstanding, or deferred
maintenance items, scheduled or unscheduled, against the Aircraft including
those identified in predelivery inspections ox test flights.
(1) CORROSION. Lessee shall maintain corrosion control through its
Maintenance Program. There shall, to Lessee's knowledge, be no untreated
corrosion remaining on the Aircraft.
(m) PRE-RETURN INSPECTIONS. Lessor shall be permitted to perform a minimum
of two physical inspections of the Aircraft including its records exclusive
of test flights'. One inspection will be performed immediately prior to
return. The aircraft interior, exterior, wheel ▇▇▇▇▇ and wing spar areas
shall be thoroughly cleaned to normal airline maintenance standards prior to
the inspection. The inspection shall include, but not be limited to, ground
evaluation and system functional tests including engine runs if deemed
necessary by Lessor. In addition, one inspection shall be permitted during
the maintenance check which precedes return. Lessor shall have the right to
have up to two (2) people be present during the entire maintenance check.
(n) ACCEPTANCE FLIGHT. Lessee shall provide for a minimum of one
acceptance flight for a total duration not to exceed two (2) hours to
demonstrate the airworthiness of the Aircraft and the proper functioning of
all systems and components.
62
(o) AIRCRAFT PHYSICAL CONDITION. The Aircraft shall be complete and
function and perform in accordance with the manufacturers' specifications.
Discrepancies noted during the pre-return inspections and acceptance flights
shall be corrected in accordance with the manufacturers' manuals.
(p) GENERAL APPEARANCE. The Aircraft shall be clean, cosmetically
acceptable, interior complete and prepared to place into U.S. scheduled
revenue airline operations at a standard equal to or above U.S. standards.
19.2 EQUIVALENCY AMOUNT. For any variance from the conditions set forth in
SECTIONS 19.1(g), 19.1(h), 19.1(i) AND 19.1(j) above, Lessee shall pay Lessor or
Lessor shall pay Lessee (as appropriate) an amount for such variance equal to
the following formula: actual time (or number of cycles) for the item minus the
minimum time (or number of cycles) for the item times the repair/overhaul cost
per hour or cycle shall equal the "Equivalency Amount". For purposes of
calculating the Equivalency Amount, a third party mutually acceptable to lessor
and lessee shall determine the cost as described in the preceding sentence. If
the Equivalency Amount is a positive sum then Lessee shall pay Lessor the
Equivalency Amount and if the Equivalency Amount is a negative sum then lessor
shall pay Lessee the Equivalency Amount.
19.3 MANUALS. Upon the return of the Aircraft in accordance with this
SECTION 19, Lessee shall deliver to lessor all logs, aircraft flight manuals,
certificates and data, and inspection, modification and overhaul records
required to be maintained with respect to the Aircraft under applicable rules
and regulations of the FAA. All such records shall be made available to Lessor
for review a minimum of thirty (30) days prior to the agreed date of return. In
the event logs are missing or incomplete. Lessor shall have the right to cause
the logs to be reconstructed or replaced at the expense of Lessee.
19.4 MAINTENANCE AT LESSOR'S REQUEST. Upon receipt of written notice from
Lessor not less than sixty (60)(nor more than one hundred twenty (120)) days
prior to any expiration or termination of this Lease, Lessee agrees to perform
maintenance to the Airframe and/or the Engines and/or the Propellers. Such
maintenance shall be done in the same manner and with the same care as used by
Lessee with similar airframes, engines and propellers of its own and shall be
completed as promptly as possible after any such termination of this Lease as to
such Airframe, Engines or Propellers, and Lessor shall reimburse Lessee in an
amount equal to (1) the lesser of (x) the sum of Lessee's direct costs for
materials plus Lessee's direct labor costs incurred in connection with such
maintenance or (y) Lessee's standard contract rates for work for third parties,
if any, therefor or (2) if such maintenance
63
is performed by someone other than Lessee, the actual amount paid therefor by
Lessee.
19.5 ENGINES. In the event any engine not owned by Lessor shall be returned
with the Airframe, such engine shall be of the same or improved model as the
Engines and suitable for installation and use on the Airframe and shall have a
value and utility at least equal to, and be in as good an operating condition
as, such Engines, assuming such Engines were in the condition and repair as
required by the terms hereof immediately prior to such termination, and Lessee
will, at its own expense and concurrently with such return, furnish Lessor with
a ▇▇▇▇ of sale, in form and substance satisfactory to Lessor, with respect to
each such engine together with evidence of Lessee's title to such engine
(including, if requested, an opinion of Lessee's counsel) and shall take such
other action as Lessor may reasonably request in order that such engine shall be
duly and properly titled in the name of Lessor, and upon passage of title to
such engine to the Lessor, such engine shall be deemed to be an Engine for all
purposes of this Lease. Upon full compliance with the terms of this Section, the
Lessor will transfer to Lessee Lessor's interest in any Engine replaced by an
engine pursuant to the preceding sentence without any representation, warranty
or recourse of any kind whatsoever, express or implied.
19.6 PROPELLERS In the event any propeller not owned by the Lessor shall
be returned with the Airframe, such propeller shall be of the same or improved
model as the Propellers and suitable for installation and use on the Airframe
and shall have a value and utility at least equal to, and be in as good an
operating condition as, such Propellers, assuming such Propellers were in the
condition and repair as required by the terms hereof immediately prior to such
termination, and Lessee will, at its own expense and concurrently with such
return, furnish Lessor with a ▇▇▇▇ of sale, in form and substance satisfactory
to Lessor, with respect to each such propeller together with evidence of
Lessee's title to such propeller (including, if requested, an opinion of
Lessee's counsel) and shall take such other action as Lessor may reasonably
request in order that such propeller shall be duly and properly titled in the
name of Lessor, and upon passage of title to such propeller to the Lessor, such
propeller shall be deemed to be a Propeller for all purposes of this Lease. Upon
full compliance with the terms of this Section, the Lessor will transfer to
Lessee Lessor's interest in any Propeller replaced by a propeller pursuant to
the preceding sentence without any representation, warranty or recours of any
kind whatsoever, express or implied.
19.7 STORAGE. Upon any expiration or termination of this Lease at the
written request of Lessor, Lessee will arrange, or will cause to be arranged,
storage facilities for the Aircraft at
64
Lessee's facilities for a period not exceeding thirty (30) days without charge
to Lessor and up to ninety (90) days, provided that Lessor pays for the
additional sixty (60) days. Lessee will maintain in effect during such storage
periods insurance covering the Aircraft pursuant to Section 13.2 to the extent
such insurance is available at reasonable commercial rates and in such amounts
and against such risks as would be customarily carried in similar circumstances
by a reasonably prudent lessor, with such insurance being paid for by Lessor and
any deductible being absorbed by Lessor in the event of a loss.
19.8 SPECIAL MARKINGS. Upon the termination or expiration of this Lease,
Lessee shall, at its cost, remove from the exterior of the Aircraft all insignia
and other distinctive markings. This provision shall not require Lessee to strip
the paint off the Aircraft or require Lessee to repaint the Aircraft.
19.9 RINK OF LOSS, ETC. Upon return to Lessor of the Aircraft in accordance
with this SECTION 19 and the other provisions of this Lease, the Lease will
terminate and the risk of loss of such Aircraft shall pass to Lessor.
Notwithstanding the foregoing, Lessee shall pay to Lessor or reimburse Lessor
for the cost to Lessor of insuring the Aircraft during any period of repair or
overhaul subsequent to the termination of the Lease that is necessary to put the
Aircraft in the condition required hereby. If any required work, repairs or
services should delay the return of the Aircraft to Lessor beyond the scheduled
expiration or earlier termination of the Term hereof, or prevents the use of the
Aircraft thereafter, Lessee shall continue to pay Base Rent on a per diem basis
and all other Rent, bear the risk of loss under SECTION 12, maintain the
insurance required by SECTION 13, and provide the indemnities required under
Sections 14 and 15; in the same manner as if there had been no expiration or
termination of this Lease and otherwise exercise the care required hereunder
with respect to the Aircraft until such required work, repair or servicing has
been completed and, in the case of delay in return, the Aircraft is returned to
Lessor as provided herein. Lessee's possession of the Aircraft during such
period shall be solely as a bailee four hire for Lessor and not as Lessee
hereunder. During such period, Stipulated Loss Value shall be an amount equal to
Stipulated Loss Value on the last day of the Term.
19.10 INSTRUMENTS OF RELEASE. Lessee shall execute and deliver to Lessor
such instruments of release and termination of this Lease as to the Aircraft, in
form suitable for recording at the FAA Aircraft Registry and other public
offices, as Lessor may reasonably request, to make clear upon public records
that the Aircraft is free and clear of all rights of Lessor and Lessee to the
Aircraft under this Lease.
65
Section 20. ASSIGNMENT- SUBLEASE.
20.1 Except as otherwise provided herein, Lessee will not and shall have no
power to, without the prior written consent of Lessor, assign any of its rights
or obligations hereunder. The terms and provisions of this Lease shall be
binding upon and inure to the benefit of Lessor and Lessee and their respective
successors and assigns.
20.2 (a) Lessee will not, without the prior written consent of Lessor,
except as otherwise provided in this Lease, sublease or otherwise in any manner
deliver, transfer or voluntarily relinquish possession, or enter into any
contract or arrangement obligating it to deliver, transfer or relinquish
possession of the Airframe or any Engine or Propeller, or install any Engine or
Propeller or permit any Engine or Propeller to be installed, on any airframe
other than the Airframe, or create a Lien not permitted under the terms hereof.
(b) Notwithstanding anything to the contrary contained in this Lease,
Lessee may merge or consolidate with any Affiliate of Lessee or sell, lease, or
otherwise dispose of all or substantially all of its assets to any Affiliate of
Lessee, PROVIDED (A) that the rights and powers of Lessor shall not be adversely
affected by such merger, consolidation, sale, lease, or other disposition and
that immediately after any such transaction no Event of Default shall have
occurred and be continuing, and, (B) that any Affiliate of Lessee which is to be
the surviving or acquiring corporation in such transaction (i) shall be a
corporation duly organized and validly existing under the laws of the United
States of America or a state thereof, or the District of Columbia, and a
"citizen of the United States of America" as defined in Section 40102 (a)(15) of
the Transportation Code', (ii) shall (unless Lessee is the surviving
corporation), by agreement in writing which shall be in form and substance
reasonably satisfactory to Lessor, expressly assume the due and punctual payment
of the Rent and other sums due and to become due under this Lease, and the due
and punctual performance and observance of all the covenants and provisions of
this Lease and each other Operative Document to which Lessee is a party, (iii)
shall not have a net worth subsequent to such action materially less than that
of Lessee prior to such action (taking into account any corporations whose net
worth is consolidated with such surviving corporation) and (C) that such
transaction shall not result in a material adverse effect with respect to the
assets, liabilities or operations of Lessee as consolidated in such survivor
corporation.
20.3 Lessor covenants that, to the extent that any Lessor Liens exist or
interfere with Lessees peaceful and quiet
66
enjoyment and use of the Aircraft, Lessor will use all reasonable efforts to
seek removal or discharge of such Liens.
Section 21. NOTICES.
All notices required under the terms and provisions hereof shall be in
writing, shall be effective on the earlier of the date such notice is actually
received or five (5) days after mailing by Certified Mail - Return Receipt
Requested confirmed on the date of mailing, shall be given by hand delivery, by
overnight delivery service (with such delivery service's delivery records
constituting proof of delivery), by telex or telecopy (with the answerback
constituting proof of receipt), or by any other electronic transmission which
produces a written record showing receipt by the addressee, and shall be
addressed as provided below or to such other address as any such party shall
designate by notice to each other such party as provided below:
(a) If to Lessor:
▇▇▇▇▇▇▇ Leasing, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to Lessee:
Chautauqua Airlines, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Nelson, Mullins, ▇▇▇▇▇ and Scarborough
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Section 22. SURVIVAL OF COVENANTS: SEVERABILITY.
67
Any provision of this Lease which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction be ineffective to the extent of
such prohibition or unenforceability without affecting or invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. If one or more Sections or clauses contained in this Lease
or in any supplement or any part hereof or thereof is held by any court of law
to be invalid, this Lease and all supplements thereto shall be construed as if
such invalid clause or clauses or Section or Sections or part or parts thereof
had not been contained herein or therein. To the extent permitted by Applicable
Law, Lessee hereby waives any provision of law which renders any provision
hereof prohibited or unenforceable in any respect.
Any other provisions contained in this Lease to the contrary
notwithstanding, it is hereby agreed that the provisions of SECTIONS 14. 15 AND
19.hereof shall survive the termination of this Lease to the extent required
thereby for their full and complete performance.
Section 23. ENTIRE AGREEMENT, TITLES.
This Lease, including all appendices, annexes, exhibits, schedules,
Lease Supplement No. 1, and the other Sublessee Documents, constitute the entire
agreement between the parties. No term or provision of this Lease may be
changed, waived, discharged, amended or terminated except by a written agreement
signed by both parties hereto. The titles of the Sections and other headings in
this Lease, and the table of contents are for convenience of reference only and
shall not modify, define, expand or limit any of the terms or provisions
hereof, and all reference herein to numbered sections unless otherwise indicated
are to Sections of this Lease.
Section 24. NOTICES OF EVENTS.
Lessee shall promptly notify Lessor at the address shown in
SECTION 21, in writing of any: (1) material accident connected with the use,
operation or malfunction of the Aircraft, including in such report the time,
place and nature of the accident, the damage caused to property, the names and
addresses of persons injured and of witnesses, and such other information as
may be pertinent to any such party's investigation of such accident, (2) Default
or Event of Default, (3) attachment, tax Lien, other Lien or other judicial
process other than Permitted Liens, that has attached to the knowledge of Lessee
to the Aircraft or any part
68
thereof, or (4) its intention to operate the Aircraft in any other country other
than the United States and Canada.
Section 25. EXECUTION AND COUNTERPARTS.
This Lease and Supplements hereto may be executed in any number of
counterparts and by the parties hereto on separate counterparts, each of which
counterparts, shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same Lease or Supplement
hereto. To the extent, if any, the counterpart of this Lease or Supplement
hereto containing the receipt therefor executed by Agent on the signature page
hereof constitutes chattel paper (as such term is defined in the Uniform
Commercial Code as in effect in any applicable jurisdiction), no other
counterpart of this Lease or any Supplement hereto constitutes chattel paper (as
so defined), and no security interest in this Lease or any Supplement hereto may
be created by transfer or possession of any counterpart hereof.
Section 26. CONFIDENTIALITY.
Lessor and Lessee agree that all negotiations, discussions, correspondence,
memoranda and other documents related to this Lease which are not required to
be filed publicly pursuant to this Lease or by any Applicable Law shall remain
and are intended to be confidential, and each of Lessor and Lessee agrees not to
disclose such information to any Person except to Affiliates and their
respective directors, officers; employees and representatives or advisors
(including their attorneys and accountants and the Vice President-USAir Express
Division of USAir Group, Inc.) who have a need to know in the general conduct of
Lessor's or Lessee's or such Affiliates's business and agree to keep such
information confidential, and except when advisable or required by any rule,
regulation or order of any Governmental Body or any filing requirements relating
thereto, or as compelled by any litigation or investigation or as required to
enforce the terms of this Agreement or as may be required by Lessee in
connection with any corporate transaction contemplated by Lessee or an
Affiliate.
Section 27. COVENANT OF QUIET ENJOYMENT.
Lessor covenants and agrees with Lessee that so long as no Default or Event
of Default has occurred and is continuing hereunder, Lessee may possess and use
the Aircraft in accordance with the terms and conditions of this Lease without
disturbance or hindrance of its peaceful and quiet enjoyment during the Term of
this Lease.
69
Section 28. GOVERNING LAW: SUBMISSION TO JURISDICTION.
This Lease shall constitute an agreement of lease, and nothing herein shall
be construed as conveying to Lessee any right, title or interest in the Aircraft
except as a Lessee only. This Lease is being delivered in
Virginia and shall in
all respects be governed by, and construed in accordance with, the internal laws
of the Commonwealth of
Virginia, including all matters of construction, validity
and performance in accordance with Section 44108 (C) of the Transportation Code.
If Lessor or any other Person commences a suit in any other jurisdiction, the
parties agree that this Lease shall be construed in accordance with the internal
laws of
Virginia without reference to such other jurisdiction's choice of law
doctrines, including its conflict of laws.
LESSEE (A) HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF
ANY FEDERAL COURT IN THE COMMONWEALTH OF
VIRGINIA IN EACH CASE FOR THE PURPOSES
OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF THIS LEASE, THE LESSEE
DOCUMENTS, OR THE SUBJECT MATTER HEREOF OR THEREOF, AND (B) TO THE EXTENT
PERMITTED BY APPLICABLE LAW, HEREBY WAIVES, AND AGREES NOT TO ASSERT, BY WAY OF
MOTION, AS A DEFENSE, OR OTHERWISE, IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY
CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF THE ABOVE-NAMED
COURTS, THAT ITS PROPERTY IS EXEMPT OR IMMUNE FROM EXECUTION, THAT THE SUIT,
ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE OF THE
SUIT, ACTION OR PROCEEDING IS INCONVENIENT OR OTHERWISE IMPROPER, OR THAT ANY
OF THE ABOVE-MENTIONED DOCUMENTS OR THE SUBJECT MATTER THEREOF MAY NOT BE
ENFORCED IN OR BY SUCH COURTS. FINAL JUDGMENT AGAINST LESSEE IN ANY SUCH SUIT
AFTER ALL APPEALS BY LESSEE HAVE BEEN EXHAUSTED SHALL BE CONCLUSIVE, AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT, A CERTIFIED OR TRUE
COPY OF WHICH SHALL BE CONCLUSIVE EVIDENCE OF THE FACT AND OF THE AMOUNT OF ANY
INDEBTEDNESS OR LIABILITY OF LESSEE THEREIN DESCRIBED.
70
ANNEX I
TO
LEASE AGREEMENT
DEFINITIONS
The following terms shall have the following meanings for all purposes of
the Lease Agreement unless otherwise defined or the context thereof shall
otherwise require. In the case of any conflict between the provisions of these
definitions and the provisions of the main body of such document, the provisions
of the main body of such document shall control the construction of such
document.
Unless the context otherwise requires, (i) references to agreements shall
be deemed to mean and include such agreements as the same may be amended and
supplemented from time to time, (ii) references to parties to agreements shall
be deemed to include the successors and permitted assigns of such parties, and
(iii) the definitions apply equally to both the singular and plural forms of
the terms defined.
"ABATEMENT" - when used in relation to Rent, any abatement, reduction,
setoff, counterclaim, recoupment, defense or other right of Lessee against
Lessor or any other Person for any reason whatsoever.
"ADDITIONAL INSUREDS" - as defined in Section 13.3 (a) of the Lease.
"AFFILIATE" - of any Person - any other Person directly or indirectly
controlling, controlled by, or under common control with such Person; PROVIDED
that, as long as Lessee is owned by Guarantee Reassurance Corporation,
"Affiliate" in respect of Lessee shall mean only Guarantee Reassurance
Corporation.
"AIRCRAFT" - the Airframe delivered and leased under the Lease
together with the two (2) Engines and the two (2) Propellers described in the
Lease Supplement No. 1 executed and delivered with respect to the Airframe (or
any Replacement Engine or Replacement Propeller) whether or not any of such
initial or substituted Engines and Propellers may from time to time be installed
on the Airframe or may be installed on any other airframe and all logs,
1
manuals and other records relating to such aircraft, and all substitutions,
replacements and renewals far any and all thereof.
"AIRCRAFT BASE" - the Lessee's operational base or the operational
base of the Aircraft as specified in Lease Supplement No. 1.
"AIRFRAME" - (i) the used Saab-▇▇▇▇▇▇▇▇▇ 340A commercial aircraft,
(except Engines or Propellers or engines or propellers from time to time
installed thereon), leased under the Lease by Lessor to Lessee pursuant to the
Lease, with manufacturer's serial number as set forth in Lease Supplement No. 1,
(ii) any and all Parts so long as the same are incorporated or installed in or
attached or belonging to such Airframe, and any and all Parts removed from the
Airframe of such Aircraft so long as title thereto and ownership thereof remains
vested in Lessor in accordance with the Lease; and (iii) insofar as legal title
thereto and ownership thereof is from time to time vested in Lessor, all
substitutions, replacements or renewals from time made in or to such Airframe or
to any of the items referred to in clauses (i) and (ii) above or to any part
thereof as required or permitted under the Lease.
"AIRWORTHINESS CERTIFICATE" - the Standard Airworthiness Certificate
on FAA AC Form 8100-2 issued in respect of the Aircraft by the FAA under the
pertinent part of the FAR.
"APPLICATION LAW" - all applicable laws, rules, regulations, decrees,
injunctions, orders or judgments of any Governmental Body, now or hereafter in
effect.
"APPOINTMENT FOR REGISTRATION" - an Application for Aircraft
Registration of an Aircraft on FAA AC Form 8050-1, or such other form as may be
approved by the FAA on the Delivery Date of the Aircraft (or any relevant
earlier date).
"APPLICATION OF AUTHORIZED REPRESENTATIVE" - the appointment of
Authorized Representative by Lessee.
"AUTHORIZED REPRESENTATIVE" - the Person appointed by the Lessee
pursuant the Lease as its agent to accept delivery of the Aircraft.
"BANKRUPTCY CODE" - the Bankruptcy Reform Act of 1994, as amended.
"BASE RATE" - the rate of interest published from tame to time in
Federal Reserve statistical release H.15(19) "Selected Interest Rates" as the
"Bank prime loan" rate. Any change in the Base Rate shall take effect on the day
specified in the public announcement of such change.
2
"BASE RENT" - the rent payable for the Aircraft pursuant to Section 9
of the Lease in the amount set forth in Lease Supplement No. 1 and the Lease
Rent Schedule.
"BASE RENT PAYMENT DATE" - the same day of each full period as the
First Base Rent Payment Date during the Term, as more particularly set forth in
Section 9 of the Lease and Lease Supplement No. 1 and the Lease Rent Schedule.
"BILLS OF SALE" - the FAA ▇▇▇▇ of Sale and the Warranty ▇▇▇▇ of Sale
for the Aircraft.
"BUSINESS DAY" - any day (other than a Saturday or Sunday) on which
commercial banking institutions in New York, New York, or in any city in any
state or country to which Lessee is directed to make any payment under the
Lease, are generally open for business.
"CHANGE IN LAW" - any change in any treaty, convention, law or
regulation or in the interpretation thereof by any governmental or regulatory
agency charged with the administration or interpretation thereof, or the
enactment of any law or regulation.
"CODE" - the Internal Revenue Code of 1986, as amended, and any
successor statute then in effect.
"COVERED PERSON" - as defined in Section 13.3(b)(7) of the Lease.
"DEFAULT" - any event or occurrence which with the passing of time or
the giving of notice, or both, shall constitute an Event of Default under the
Lease.
"DELIVERY DATE" - the date of Lease Supplement No. 1 describing the
Aircraft, which date shall be the date the Aircraft is delivered to, and
accepted by Lessee pursuant to the Lease as such date is set forth in the Lease
Supplement No. 1.
"DEPARTMENT OF TRANSPORTATION" AND "DOT" - the United States
Department of Transportation or any successor thereto.
"DOLLARS" and "$" - immediately available and freely transferable
lawful money of the United States of America.
"▇▇▇▇▇" - ▇▇▇▇▇ Rotol Limited, a limited liability company organized
under the laws of the United Kingdom.
3
"ECMP" - An agreement between General Electric Company and Lessee for
the Engine Care Maintenance Plan for Engines, reasonably acceptable to Lessor.
"ENGINE" - with respect to an Aircraft - (i) each of the two (2)
General Electric Model CT7-5A engines installed on the Aircraft on the Delivery
Date, listed by manufacturer's serial numbers in Lease Supplement No. 1, whether
or not from time to time thereafter installed on the Airframe of the Aircraft or
any other airframe; (ii) any Replacement Engine; (iii) any and all Parts
incorporated or installed in or attached or belonging thereto and any and all
Parts removed therefrom so long as title thereto remains vested in Lessor in
accordance with the Lease after removal from such Engine; and (iv) insofar as
legal title thereto and ownership thereof is from time to time vested in Lessor,
all substitutions, replacements or renewals from time made in or to such Engine
or to any of the items referred to in clauses (i), (ii) and (iii) above or to
any part thereof as required or permitted under the Lease. Except as otherwise
set forth in the Lease, at such time as a Replacement Engine is so substituted,
such replaced Engine shall cease to be an Engine under the Lease. The term
"Engines" means, if the context so requires, as of any date of determination,
all Engines then leased under the Lease.
"ERISA" - the Employee Retirement Income Security Act of 1974, as
amended.
"EVENT OF DEFAULT" - the term "Event of Default" shall have the
meaning specifically set forth in Section 18 of the Lease.
"EVENT OF LOSS" - as defined in Section 12.2 of the Lease.
"EXCEPTED PAYMENT" - any payment under insurance maintained by Lessor
with respect to the Aircraft and not required by Section 10 of the Lease, or
maintained under liability insurance policies to or for the benefit of Lessor on
account of any loss suffered by Lessor, and any interest or late charge thereon.
"EXCEPTED RIGHTS" - The right of Lessor to demand, collect, ▇▇▇ for or
otherwise enforce or exercise its rights in respect of Excepted Payments;
PROVIDED, that such rights shall not include the exercise of any remedies other
than the right to ▇▇▇ for specified performance of any covenant to make an
Excepted Payment or to ▇▇▇ for damages or to enforce any judgment in respect of
the breach of such covenant.
"FAA" - the United States Federal Aviation Administration or any
successor agency.
4
"FAA AIRCRAFT REGISTRY" - the registry maintained pursuant to the
Transportation Code for the registration of aircraft and the recordation of
instruments affecting interests in, among other things, aircraft and certain
engines and propellers.
"FAA COUNSEL" - ▇▇▇▇▇ & ▇▇▇▇▇▇▇ or any other counsel specializing in
FAA filings and recordings, reasonably satisfactory to Lessor.
"FAIR MARKET RENTAL Value" - as defined in Section 18.3 of the
Lease.
"FAIR MARKET SALE VALUE" - as defined in Section 18.3 of the Lease.
"FAR" - the Federal Aviation Regulations promulgated under the
Transportation Code and any successor provisions.
"FEDERAL RESERVE BOARD" - the Board of Governors of the Federal
Reserve System of the United States of America or any successor agency or board
at the relevant time performing the functions of the Federal Reserve Board.
"GAAP"- generally accepted accounting principles, in the United
States, consistently applied.
"GE" - General Electric Company, a New York corporation, and its
permitted successors and assigns, in its capacity as manufacturer of the
Engines.
"GENEVA CONVENTION" - the Geneva Convention on the International
Recognition of Rights in Aircraft, opened for signature in June of 1948.
"GOVERNMENTAL BODY" - any federal, state, municipal or other
governmental division, subdivision, department, commission, board, bureau,
court, legislature, agency, instrumentality or authority of any country
including, without limitation, the United States of America, domestic or, to the
extent binding under federal law on any Person or the Aircraft, international or
transnational.
"IMPOSITION" - as defined in Section 15.1 of the Lease.
"INDEMNIFIED PERSON"- Lessor, its Affiliates, successors, permitted
assigns, officers, directors, employees and agents.
"INSURANCE ENDORSEMENTS" - the Insurance Endorsements in the form
attached as Exhibit B to the Lease to be provided by the Lessee.
5
"▇▇▇▇▇▇▇ LEASING, INC." or "▇▇▇▇▇▇▇" - ▇▇▇▇▇▇▇ Leasing, Inc., a
Delaware corporation and its successors and permitted assigns, as Lessor under
the Lease.
"LEASE" -
Aircraft Lease Agreement No. 2 dated as of March 15, 1995
between Chautauqua Airlines, Inc., as Lessee, and ▇▇▇▇▇▇▇ Leasing, Inc.,
as Lessor, to which this Annex I is attached and as amended or supplemented from
time to time pursuant to the provisions thereof, including without limitation
Lease Supplement No. 1 and any Lease Supplement as may be executed
contemporaneously with or subsequent to the date of the Lease.
"LEASE RENT SCHEDULE" - Lease Rent Schedule No. 1 dated March ___,
1995, entered into between Lessor Leasing, Inc., as Lessor, and Chautauqua
Airlines, Inc., as Lessee, setting forth Base Rent axed payment terms,
Stipulated Loss Values and other financial information.
"LEASE SUPPLEMENT" - any supplement to the Lease, entered into between
Lessor and any Lessee for the purpose of leasing the Aircraft or any Replacement
Engine or Replacement Propeller under the Lease, including without limitation
any amendment thereto entered into subsequent to the Delivery Date.
"LEASE SUPPLEMENT NO. 1" - Lease Supplement No. 1 dated March ___,
1995 in the form of Exhibit A to the Lease, entered into between Lessor and
Lessee for the purpose of leasing the Aircraft under the Lease, including
without limitation any amendment thereto entered into subsequent to the
Delivery Date.
"LESSEE" - Chautauqua Airlines, Inc., a New York corporation, and an
air carrier engaged in interstate air transportation and certificated under
Section 49705 of the Transportation Code, and its successors and permitted
assigns.
"LESSEE DOCUMENTS" - the "Lessee Documents" shall be the Lease, Lease
Supplement No. 1 and any subsequent Lease Supplements, and the Lease Rent
Schedule.
"LESSOR" - ▇▇▇▇▇▇▇ Leasing, Inc., a Delaware corporation, as Lessor
under this Lease, and its permitted successors and assigns.
"LESSOR LIENS" - Liens or a disposition of title affecting or in
respect of the Aircraft, the Airframe, any Engine, any Propeller, any Part, the
Lease, or any payment of Rent, arising as a result of (i) claims or judgments
against or affecting Lessor not related to the transactions contemplated or
expressly permitted by the Operative Documents or not indemnified against by
Lessee; (ii) acts or omissions of Lessor not related to the transactions
6
contemplated or expressly permitted by the Operative Documents or not
indemnified against by Lessee; or (iii) claims against Lessor arising out of the
voluntary transfer by Lessor of its interest in the Aircraft, other than (A) the
transfer itself (if permitted by the Operative Documents), (B) claims
indemnified against by Lessee, and (C) transfers as a result of an Event of
Loss, Event of Default or exercise of a purchase option by Lessee; unless such
breach is the result of Lessor's failure to comply with any of Lessor's
obligations under the Operative Documents, or not indemnified against by Lessee.
"LIABILITIES" - as defined in Section 14.1 of the Lease.
"LIEN" - as applied to the property or assets (or the income or
profits therefrom) of any Person, means (in each case, whether the same is
consensual or non-consensual or arises by contract, operation of law, legal
process or otherwise) any mortgage, lien, pledge, attachment, levy, lease,
charge, conditional sale, inscription on a public record, adverse claim or any
other type of security interest or encumbrance of any kind in respect of any
property of such Person, or upon the income or profits therefrom.
"LOSS PAYEE" - as defined in Section 13(a) of the Lease.
"MAINTENANCE PROGRAM" - Lessee's or its Affiliate's FAA approved
maintenance program in effect, from time to time, with respect to the Aircraft.
"MANUFACTURER" - Saab Aircraft AB, a limited liability company
organized under the laws of the Kingdom of Sweden, and its successors and
permitted assigns.
"MATERIALLY ADVERSE EFFECT" - (i) with respect to any Person, a
materially adverse effect on such Person's business, assets, liabilities,
financial condition, results of operations or business prospects, (ii) with
respect to any contract or any other obligation (other than the Lease or any of
the other Operative Documents), a materially adverse effect, as to any party
thereto, upon the binding nature, validity or enforceability thereof, and (iii)
with respect to the Operative Documents an adverse effect, WHETHER OR NOT
MATERIAL, on the binding nature, validity or enforceability thereof as
obligations of Lessor.
"OFFICER'S CERTIFICATE" - with respect to any corporation or other
entity, a certificate of a Responsible officer of such corporation or entity.
7
"OPERATIVE DOCUMENTS" - the Lessee Documents to which Lessor is a
party.
"OVERDUE RATE" - The Base Rate plus four (4) percent per annum, or
such lesser rate as may represent the maximum rate of interest permitted by
Applicable Law.
"PARTS" - any and all appliances, components, parts, instruments,
appurtenances, accessories, furnishings and other equipment of whatever nature,
(other than complete Engines or engines and Propellers or propellers), which may
from time to time be incorporated or installed in or attached to the Airframe,
any Engine or any Propeller.
"PERMITTED LIENS" - as defined in Section 10.1 of the Lease.
"PERSON" - any individual, corporation, partnership, joint venture,-
association, joint-stock company, trust, unincorporated organization or
Governmental Body.
"PROPELLER" - (i) each of the two (2) ▇▇▇▇▇ Rotol Model
R354/4-123-F/13 four-blade aircraft propellers installed on the Aircraft on
the Delivery Date and listed by manufacturer's serial numbers in the Lease
Supplement describing the Aircraft whether or not from time to time thereafter
installed on the Aircraft or any other aircraft, (ii) any Replacement Propeller;
(iii) any and all Parts incorporated or installed thereon or attached or
belonging thereto and any and all Parts removed from such Propeller so long as
title thereto remains vested in Lessor in accordance with the Lease after
removal from such Propeller; and (iv) insofar as legal title thereto and
ownership thereof is from time to time vested in Lessor, all substitutions,
replacements or renewals from time made in or to such Propeller or to any of
the items referred to in clauses (i), (ii) and (iii) above or to any part
thereof as required or permitted under the Lease. Except as otherwise set forth
in the Lease, at such time as a Replacement Propeller is so substituted, such
replaced Propeller shall cease to be a Propeller under the Lease. The term
"Propellers" means, if the context so requires, as of any date of
determination, all Propellers then leased under the Lease.
"REGULATIONS" - FAR.
"RENT" - Base Rent and Supplemental Rent.
"RENT PAYMENT DATE" - each rent payment date set forth in the Lease
Supplement and the Lease Rent Schedule.
8
"REPLACEMENT ENGINE" - each General Electric Model CT7-9B aircraft
engine (or aircraft engine of the same manufacturer of the same or an improved
model) substituted for an Engine under the Lease, together with all Parts
relating to such engine.
"REPLACEMENT PROPELLER" - each ▇▇▇▇▇ Rotol Model R354/4-123-F/13
four-blade aircraft propeller (or aircraft propeller of the same manufacturer of
the same or an improved model) substituted for any Propeller under the Lease,
together with all Parts relating to such propeller.
"RESPONSIBLE OFFICER" - in the case of any corporation or other
entity, the Chairman of the Board of Directors, the President, any Vice
President, the Treasurer, any Assistant Treasurer, the Secretary or any
Assistant Secretary.
"SAAB MRB MANUAL" - the most recent revision of the Saab 340
Maintenance Review Board Document.
"SAAI" - Saab Aircraft of America, Inc., a Delaware corporation, and
its successors and permitted assigns.
"STIPULATED LOSS VALUE" - with respect to the Aircraft as of any date
of computation, the Stipulated Loss Value for the Aircraft as specified in the
table in Annex 1 to Lease Rent Schedule (the "Stipulated Loss Value Table"), for
the immediately preceding Base Rent Payment Date, or if the date of computation
is before the first Base Rent Payment Date, using the first Base Rent Payment
Date, or if the date of computation is on a Base Rent Payment Date using such
Base Rent Payment Date.
"SUPPLEMENTAL RENT" - all amounts Lessee agrees to pay as Supplemental
Rent and all amounts, liabilities and obligations (other than Base Rent) which
Lessee assumes or agrees to pay under the Lease or under any Lessee Document
including, without limitation, Stipulated Loss Value, indemnities, any interest
payable under the Lease or any Lessee Document, any insurance premium paid by
any Person in respect of insurance required to be carried by Lessee under the
Lease and damages for breach of any covenants, representations, or warranties of
Lessee under the Lease or under any other Lessee Document.
"TAXES" or "TAX" - as defined in Section 15 of the Lease.
"TERM" - the term of the Lease, as determined pursuant to Section 8 of
the Lease.
9
"TRANSPORTATION CODE" - Title 49 of the United States Code, as amended
from time to time, or any similar legislation of the United States enacted in
substitution or replacement thereof.
"UNITED STATES GOVERNMENT" - the government of the United States of
America or any agency or instrumentality thereof, including, without limitation,
the FAA.
"U.S. CERTIFICATED AIR CARRIER" - any Person (except the United States
Government) that is an air carrier domiciled in the United States of America and
is certificated under Section 44705 of the Transportation Code, or any successor
provision thereto.
"U.S. PERSON" - "United States person": within the meaning of Section
7701 (a) (30) of the Code.
10
NOTE TO EXHIBIT 10.17
The five additional
Aircraft Lease Agreements are substantially identical in all
material respects to the filed
Aircraft Lease Agreement except as follows:
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TAIL NUMBER CLOSING DATE OWNER-PARTICIPANT
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N35CQ April, 1995 ▇▇▇▇▇▇▇ Leasing Inc.
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N43CQ June, 1995 ▇▇▇▇▇▇▇ Leasing Inc.
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N121CQ August, 1995 ▇▇▇▇▇▇▇ Leasing Inc.
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N19CQ October, 1995 ▇▇▇▇▇▇▇ Leasing Inc.
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N40CQ July, 1995 ▇▇▇▇▇▇▇ Leasing Inc.
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