Exhibit 10.24
EXECUTION VERSION
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PARTICIPATION AGREEMENT [N296SK]
Dated as of December 20, 2001
among
CHAUTAUQUA AIRLINES, INC.,
as Lessee
SILVERMINE RIVER FINANCE TWO, INC.,
as Owner Participant,
and
▇▇▇▇▇ FARGO BANK NORTHWEST, NATIONAL ASSOCIATION,
not in its individual capacity (except as otherwise
expressly set forth herein) but solely
as Owner Trustee
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COVERING ONE EMBRAER MODEL EMB-145LR AIRCRAFT
AIRCRAFT BEARING U.S. REGISTRATION NO. N296SK
AND MANUFACTURER'S SERIAL NUMBER 145514
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Certain portions of this exhibit have been omitted pursuant to a request for
confidential treatment under Rule 406 of the Securities Act of 1933. The
omitted materials have been filed separately with the Securities and Exchange
Commission.
PARTICIPATION AGREEMENT [N296SK] dated as of December 20, 2001 (this
"Agreement") among CHAUTAUQUA AIRLINES, INC., a New York corporation (herein,
together with its successors and permitted assigns, the "Lessee"), ▇▇▇▇▇ FARGO
BANK NORTHWEST, NATIONAL ASSOCIATION, a national banking association, not in its
individual capacity, except as otherwise expressly stated herein, but solely as
owner trustee under the Trust Agreement referred to below (in such capacity as
trustee, together with its successors and permitted assigns, the "Owner
Trustee"), and SILVERMINE RIVER FINANCE TWO, INC., a Delaware corporation
(together with its successors and permitted assigns, the "Owner Participant").
W I T N E S S E T H:
WHEREAS, capitalized terms used herein shall have the respective
meanings set forth or referred to in Article 1 hereof; and
WHEREAS, pursuant to the Embraer Purchase Agreement, the Manufacturer
agreed to manufacture and sell to Solitair and Solitair agreed to purchase from
the Manufacturer the Aircraft; and
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Owner Participant and ▇▇▇▇▇ Fargo Bank Northwest, National
Association, are entering into the Trust Agreement whereby, among other things,
▇▇▇▇▇ Fargo Bank Northwest, National Association, is appointed as Owner Trustee
and has undertaken to acquire and hold the Trust Estate in trust for the benefit
of the Owner Participant; and
WHEREAS, pursuant to the Embraer Assignment Documents, Solitair has
agreed to assign its right to purchase the Aircraft from the Manufacturer,
together with the Assigned Warranties, to the Seller, and pursuant to the Seller
Assignment Documents, the Seller has agreed to sell the Aircraft, together with
the Assigned Warranties, to the Owner Trustee and subject to the terms and
conditions of this Agreement, the Owner Trustee is willing to purchase the
Aircraft from the Seller pursuant to the Seller Assignment Documents for
immediate lease to the Lessee pursuant to the Lease; and
WHEREAS, subject to the terms and conditions of this Agreement and the
Trust Agreement, the Owner Participant is willing to make the equity investment
provided for herein to fund such purchase by the Owner Trustee; and
WHEREAS, Solitair has agreed to assign the Engine Warranties to the
Owner Trustee and the Engine Manufacturer has consented to such assignment, upon
the terms and conditions contained in the Engine Warranty Assignment and
Consent; and
WHEREAS, to induce the Owner Participant to make the equity investment
provided for herein to fund the purchase of the Aircraft by the Owner Trustee
from the Seller, the Manufacturer has agreed to enter into the Residual Value
Guarantee Agreement (MSN145514/N296SK), dated as of December 20, 2001 (the
"Residual Value Guarantee Agreement") with the Owner Participant and to
undertake the obligations provided therein; and
WHEREAS, to induce the Owner Trustee to purchase the Aircraft and to
enter into the Lease, the Manufacturer has agreed to enter into the Guarantee
Agreement (MSN145514/N296SK), dated December 20, 2001 (the "Guarantee
Agreement") with the Owner Trustee and the Owner Participant and to undertake
the obligations provided therein;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration and receipt and adequacy of
which is hereby acknowledged, and intending to be legally bound, the parties do
hereby agree as follows:
ARTICLE 1.
INTERPRETATION
Section 1.01. DEFINITIONS. Capitalized terms used herein and defined
in Appendix A shall, except as such definitions may be specifically modified in
the body of this Agreement for the purposes of a particular section, paragraph
or clause, have the meanings given such terms in Appendix A.
Section 1.02. REFERENCES. References in this Agreement to sections,
paragraphs, clauses, appendices, schedules and exhibits are to sections,
paragraphs, clauses, appendices, schedules and exhibits in and to this Agreement
unless otherwise specified.
Section 1.03. HEADINGS. The headings of the various sections,
paragraphs and clauses of this Agreement 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.
Section 1.04. APPENDICES, SCHEDULES AND EXHIBITS. The appendices,
schedules and exhibits hereto are part of this Agreement.
ARTICLE 2.
SALE AND LEASING TRANSACTIONS
Section 2.01. PARTICIPATION. Subject to all of the terms and
conditions of this Agreement, the parties agree to participate in the sale and
leasing transactions with respect to the Aircraft provided for in this Article
2.
(a) ASSIGNMENT, SALE AND PURCHASE. By countersigning this Agreement,
Solitair, in consideration of $500,000 to be paid by the Owner Trustee to
Solitair, hereby (i) agrees to assign its right to purchase the Aircraft from
the Manufacturer, together with the Assigned Warranties, to the Seller pursuant
to the Embraer Assignment Documents provided that the Seller agrees immediately
to purchase the Aircraft from the Manufacturer pursuant to the Embraer
Assignment Documents and to sell the Aircraft together with the Assigned
Warranties to the Owner Trustee pursuant to the Seller Assignment Documents,
(ii) consents to the sale of the Aircraft together with the Assigned Warranties
by the Seller to the Owner Trustee pursuant to the Seller Assignment Documents,
and (iii) agrees to assign the Engine Warranties to the Owner Trustee pursuant
to the Engine Warranty Assignment and Consent. The Owner Trustee agrees to
accept the assignment from Solitair as contemplated by the Engine Warranty
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Assignment and Consent, accept the assignments from the Seller as contemplated
by the Seller Assignment Documents and purchase the Aircraft together with the
Assigned Warranties from the Seller pursuant to the Seller Assignment Documents
for a purchase price equal to the Lessor's Cost, of which $500,000 shall be paid
to Solitair and the balance shall be paid to the Seller, subject to the
following sentence. The parties hereto agree (i) that each of the Owner Trustee
and the Owner Participant may, for the purpose of treating all or part of the
purchase of the Aircraft hereunder as part of a like-kind exchange of property
under Section 1031 of the Internal Revenue Code, assign all or part of their
respective rights under this Agreement to a "qualified intermediary" (as defined
in Treasury Regulations Section 1.1031(k)-1(g)(4) (the "Qualified Intermediary")
and deliver notice of such assignment to the Seller, and (ii) that the Qualified
Intermediary may pay to the Seller and Solitair all or part of the Purchase
Price pursuant to the preceding sentence, PROVIDED that (x) such assignment
shall not release the Owner Trustee or the Owner Participant from any of its
obligations hereunder, (y) the Seller shall transfer title to the Aircraft
directly to the Owner Trustee in accordance with the terms and conditions of the
Seller Assignment Documents, and (z) such assignment shall not reduce or
otherwise adversely affect any of the rights, or increase any of the
obligations, of the Lessee under this Agreement.
(b) LEASING. The Owner Trustee agrees to lease to the Lessee, and the
Lessee agrees to lease from the Owner Trustee, the Aircraft pursuant to the
Lease, such leasing to take place concurrently with the purchase of the Aircraft
by the Owner Trustee on the Delivery Date.
(c) OWNER PARTICIPANT'S EQUITY INVESTMENT. The Owner Participant
agrees to provide immediately available funds in an amount equal to the Lessor's
Cost (the "Commitment") (i) by paying such amount to the Owner Trustee prior to
the time of closing on the Delivery Date at the account specified by the Owner
Trustee on or prior to the Delivery Date, such amount to be held and applied
toward the Owner Trustee's payment of Lessor's Cost for the Aircraft on the
Delivery Date (and if not so applied, to be promptly returned to the Owner
Participant) or (ii) by paying (or causing to be paid) (x) [*] of the
Lessor's Cost at the time of the closing on the Delivery Date directly to
Solitair's account specified by Solitair prior to the closing, and (y) the
balance of the Lessor's Cost at the time of the closing on the Delivery Date
directly to the Seller's account specified by the Seller prior to the closing,
in each case to be applied toward the payment of Lessor's Cost. Such funds, once
so applied, shall constitute an equity investment by the Owner Participant in
the Trust Estate.
(d) DELIVERY DATE. The "Delivery Date" shall be the date fixed by the
Lessee in accordance with this Section 2.01(d) for the closing of the sale and
leasing transactions with respect to the Aircraft contemplated hereby, except
that following such closing the "Delivery Date" shall mean the date on which
such transactions actually closed. The Lessee shall give at least two Business
Days' notice to each other party hereto of the Delivery Date, which notice shall
also specify the amount of the Commitment. The Lessee may postpone a scheduled
Delivery Date from time to time, for any reason by notice given to the other
parties hereto not later than 2:00 p.m. on the date last scheduled as the
Delivery Date, such notice to specify a new Delivery Date. In the event that the
Owner Participant shall have provided the amount of the Commitment to the Owner
Trustee prior to such a postponement, the Owner Trustee shall return such amount
to the Owner Participant by 2:00 p.m. on the scheduled Delivery Date unless the
Owner Participant shall have agreed otherwise in writing. Absent such an
agreement, in the
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event that the Commitment is not returned to the Owner Participant by 2:00 p.m.
on a scheduled Delivery Date on which the closing does not occur, the Lessee
shall pay interest to the Owner Participant at a rate equal to the rate per
annum announced from time to time by Citibank, N.A. as its prime rate plus [*]
for each day that such commitment is not returned to the Owner Participant by
2:00 p.m.. The making available by the Owner Participant of the Commitment at
the closing shall be deemed a waiver of notice of the Delivery Date by the
Owner Participant and the Owner Trustee.
Section 2.02. CLOSING PROCEDURE.
(a) TIME AND PLACE. The closing shall take place at 11:00 a.m. New
York City local time on the Delivery Date at the offices of Fulbright & ▇▇▇▇▇▇▇▇
L.L.P., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ or at such other time and place as
the parties may agree. The closing shall be preceded by a pre-closing at the
same place, the time for which shall be fixed by the Lessee, at which the forms
of the Operative Agreements to be executed, the certificates and other documents
to be delivered and the forms of the legal opinions to be delivered at the
closing by each party or its counsel pursuant to this Agreement shall be
available for inspection by the parties and their respective counsel.
(b) ACTIONS OF THE OWNER TRUSTEE. Upon actual or constructive receipt
in full by the Owner Trustee of the Commitment of the Owner Participant together
with instructions (which may be oral) from the Owner Participant or its special
counsel that the applicable conditions precedent set forth in Section 3.01 have
been satisfied or waived by the Owner Participant, the Owner Trustee on the
Delivery Date shall purchase the Aircraft from the Seller and lease the Aircraft
to the Lessee. To accomplish such transactions, the Owner Trustee shall,
concurrently with the actions of the Lessee pursuant to Section 2.02(c), take
the following actions:
(i) pay or cause to be paid (x) an amount equal to [*] of
the Lessor's Cost to Solitair and (y) the balance of the Lessor's Cost to
the Seller, in accordance with the terms of Sections 2.01(a) and (c), by
transferring such amounts in immediately available funds to the account
specified by Solitair or the Seller, as the case may be, on or prior to the
Delivery Date;
(ii) authorize its representative or representatives, who shall
be a person or persons designated by the Lessee and acceptable to the Owner
Trustee, to accept delivery of the Aircraft pursuant to this Agreement;
(iii) accept the Bills of Sale for the Aircraft;
(iv) execute and deliver the Lease and the Lease Supplement;
(v) deliver the Aircraft to the Lessee pursuant to the Lease;
(vi) execute and deliver all other documents or certificates and
take such other actions as may be required of the Owner Trustee on or
before the Delivery Date pursuant to any Operative Agreement; and
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(vii) take such actions as may be requested by the Seller and
Lessee to effect the due registration of the Aircraft with the FAA in the
name of the Owner Trustee.
(c) ACTIONS OF THE LESSEE. Upon satisfaction or waiver by the Lessee
of the conditions precedent set forth in Section 3.02, the Lessee shall on the
Delivery Date lease the Aircraft from the Owner Trustee pursuant to the Lease.
To accomplish such transactions the Lessee shall, concurrently with the actions
of the Owner Trustee pursuant to Section 2.02(b), take the following actions:
(i) execute and deliver the Lease and the Lease Supplement;
(ii) authorize its representative or representatives (who shall
be the same person or persons designated by the Lessee for purposes of
clause (ii) of Section 2.02(b)), to accept delivery of the Aircraft from
the Owner Trustee pursuant to the Lease; and
(iii) execute and deliver all other documents or certificates and
take such other actions as may be required of the Lessee on or before the
Delivery Date pursuant to any Operative Agreement.
ARTICLE 3.
CONDITIONS PRECEDENT
Section 3.01. CONDITIONS PRECEDENT TO OBLIGATIONS OF OWNER
PARTICIPANT. The obligation of the Owner Participant to make the Commitment
available for payment as directed by the Owner Trustee on the Delivery Date is
subject to satisfaction or waiver by the Owner Participant, on or prior to the
Delivery Date, of the conditions precedent set forth below in this Section 3.01;
PROVIDED, that it shall not be a condition precedent to the obligation of the
Owner Participant that any document be produced or action taken that is to be
produced or taken by the Owner Participant or by a Person within the Owner
Participant's control:
(a) NOTICE. The Owner Participant shall have received the notice of
the Delivery Date as provided in Section 2.01(d), or shall have waived such
notice.
(b) DELIVERY OF DOCUMENTS. The Owner Participant shall, except as
noted below, have received executed counterparts of the following agreements,
instruments, certificates or documents, and such counterparts (a) shall have
been duly authorized, executed and delivered by the respective party or parties
thereto, (b) shall be reasonably satisfactory in form and substance to the Owner
Participant and (c) shall be in full force and effect:
(i) the Lease;
(ii) Lease Supplement No. 1;
(iii) the Tax Indemnity Agreement;
(iv) the Trust Agreement;
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(v) the Guarantee Agreement;
(vi) the Residual Value Guarantee Agreement;
(vii) the Embraer Assignment Documents;
(viii) the Seller Assignment Documents;
(ix) the Engine Warranty Assignment and Consent;
(x) the Bills of Sale and Seller Guaranty;
(xi) the broker's report and insurance certificates required by
Section 9 of the Lease;
(xii) an appraisal or appraisals from Avitas, which appraisal or
appraisals shall be satisfactory in form and substance to Owner
Participant;
(xiii) (A) a copy of the Certificate of Incorporation and By-Laws
of Lessee and resolutions of the board of directors of Lessee, in each case
certified as of the Delivery Date, by the Secretary or an Assistant
Secretary of Lessee, duly authorizing the execution, delivery and
performance by Lessee of the Operative Agreements required to be executed
and delivered by Lessee on or prior to the Delivery Date in accordance with
the provisions hereof and thereof; (B) an incumbency certificate of Lessee
and Trust Company as to the person or persons authorized to execute and
deliver the relevant Operative Agreements on behalf of such party; and (C)
a copy of the Certificate of Incorporation or Articles of Incorporation or
Articles of Association and By-Laws and general authorizing resolutions of
the boards of directors (or executive committees) or other satisfactory
evidence of authorization of Trust Company, certified as of the Delivery
Date by the Secretary or an Assistant Secretary of Trust Company, which
authorize the execution, delivery and performance by Trust Company of each
of the Operative Agreements to which it is a party, together with such
other documents and evidence with respect to it as Owner Participant may
reasonably request in order to establish the consummation of the
transactions contemplated by this Agreement and the taking of all corporate
proceedings in connection therewith;
(xiv) (A) an Officer's Certificate of Lessee, dated as of the
Delivery Date, stating that its representations and warranties set forth in
this Agreement are true and correct as of the Delivery Date (or, to the
extent that any such representation and warranty expressly relates to an
earlier date, true and correct as of such earlier date); and (B) an
Officer's Certificate of Solitair, dated as of the Delivery Date, attaching
a true and correct copy of the Embraer Purchase Agreement (with certain
confidential, proprietary information deleted therefrom);
(xv) an Officer's Certificate of Trust Company, dated as of the
Delivery Date, stating that its representations and warranties, in its
individual capacity and as Owner Trustee, set forth in this Agreement are
true and correct as of the Delivery Date
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(or, to the extent that any such representation and warranty expressly
relates to an earlier date, true and correct as of such earlier date);
(xvi) the following opinions of counsel, in each case dated the
Delivery Date:
(A) ▇▇▇▇▇▇ ▇▇▇▇▇, Principal and General Counsel of the Lessee
substantially in the form of Exhibit A-1 hereto and addressed to the Owner
Participant and the Owner Trustee.
(B) Fulbright & ▇▇▇▇▇▇▇▇, L.L.P. special counsel for the Lessee
substantially in the form of Exhibit A-2 hereto addressed to the Owner
Participant, the Owner Trustee and the Lessee;
(C) Ray, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special counsel for the Owner Trustee
substantially in the form of Exhibit A-3 hereto addressed to the Owner
Participant and the Lessee;
(D) Daugherty, Fowler, Peregrin & ▇▇▇▇▇▇, a Professional
Corporation, special aviation counsel, substantially in the form of Exhibit
A-4 hereto and addressed to the Owner Participant, the Owner Trustee and
the Lessee;
(E) special counsel for the Manufacturer, in a form reasonably
acceptable to the Owner Participant and addressed to the Owner Participant,
the Owner Trustee, Solitair and the Lessee;
(F) in the case of the Owner Participant only, Holland & Knight
LLP, tax counsel to the Owner Participant, addressed to the Owner
Participant, with respect to tax matters;
(G) Holland & Knight LLP, special counsel for the Owner
Participant, substantially in the forms of Exhibits A-5, addressed to the
Lessee and the Owner Trustee;
(H) ▇▇▇ ▇▇▇▇▇▇, Senior Vice President and Associate General
Counsel to GE Capital Aviation Services, Inc., an Affiliate of the Owner
Participant, substantially in the form of Exhibit A-6, addressed to the
Lessee and the Owner Trustee; and
(I) ▇▇▇▇▇▇ ▇▇▇▇▇, General Counsel of Solitair, in a form
reasonably acceptable to the Owner Participant and addressed to the Owner
Participant, the Owner Trustee and the Lessee;
(xvii) the Guarantee Agreement shall be in full force and effect;
and
(xviii) the Residual Value Guarantee Agreement shall be in full
force and effect.
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(c) EXPORT. Owner Participant shall receive copies of (A) a print-out
of the registration of the transaction with the Registry of Credit Transactions
(the "Registro de Operacao de Credito - RC") to be obtained by the Manufacturer
through the SISCOMEX System in Brazil, (B) a print-out of the Export
Registration (the "Registro de Exportacao - RE") of the transaction to be
obtained by the Manufacturer through the SISCOMEX System in Brazil, and (C) the
Export Certificate of Airworthiness to be issued by the Aerospace Technical
Center ("Centro Tecnico Aerospacial - CTA") of the Ministry of Defense in Brazil
with respect to the Aircraft.
(d) VIOLATION OF LAW. No change shall have occurred after the date of
this Agreement in any Applicable Law that makes it a violation of law for (a)
Lessee, Owner Participant, or Owner Trustee to execute, deliver and perform the
Operative Agreements to which any of them is a party or (b) Owner Participant to
make the Commitment available.
(e) NO EVENT OF DEFAULT. On the Delivery Date, no event shall have
occurred and be continuing, or would result from the sale, mortgage or lease of
the Aircraft, which constitutes a Default or Event of Default.
(f) NO EVENT OF LOSS. No Event of Loss with respect to the Airframe or
any Engine shall have occurred and no circumstance, condition, act or event
that, with the giving of notice or lapse of time or both, would give rise to or
constitute an Event of Loss with respect to the Airframe or any Engine shall
have occurred.
(g) TITLE. Owner Trustee shall have good title (subject to filing and
recordation of the FAA ▇▇▇▇ of Sale with the FAA) to the Aircraft, free and
clear of Liens, except Permitted Liens.
(h) CERTIFICATION. The Aircraft shall comply with the provisions of
Article 6 of the Embraer Purchase Agreement.
(i) SECTION 1110. Owner Trustee, as lessor under the Lease, shall be
entitled to the benefits of Section 1110 (as currently in effect) with respect
to the right to take possession of the Airframe and Engines as provided in the
Lease in the event of a case under Chapter 11 of the Bankruptcy Code in which
Lessee is a debtor.
(j) FILINGS. On the Delivery Date (i) application for registration of
the Aircraft in the name of the Owner Trustee shall have been duly made with the
FAA in compliance with the provisions of the Transportation Code; and (ii) the
Trust Agreement, the Lease, Lease Supplement No. 1 and the FAA ▇▇▇▇ of Sale
shall have been duly filed for recordation (or shall be in the process of being
so duly filed for recordation) with the FAA in accordance with the
Transportation Code.
(k) PRECAUTIONARY FINANCING STATEMENTS. A Uniform Commercial Code
"precautionary" financing statement or statements describing the Lease as a
lease but covering any security interest in favor of the Owner Trustee which may
be created thereby, shall have been executed and delivered by the Lessee and the
Owner Trustee (naming the Owner Trustee as Lessor and secured party), and shall
have been duly filed in all places necessary or desirable within the State of
New York.
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(l) NO PROCEEDINGS. No action or proceeding shall have been
instituted, nor shall any action be threatened in writing, before any
governmental authority, nor shall any order, judgment or decree have been issued
or proposed to be issued by any governmental authority, to set aside, restrain,
enjoin or prevent the completion and consummation of this Agreement or any other
Operative Agreement or the transactions contemplated hereby or thereby.
(m) GOVERNMENTAL ACTION. All appropriate action required to have been
taken prior to the Delivery Date by the FAA, or any governmental or political
agency, subdivision or instrumentality of the United States, and any
governmental or political agency, subdivision or instrumentality of Brazil, in
connection with the transactions contemplated by this Agreement shall have been
taken, and all orders, permits, waivers, authorizations, exemptions and
approvals of such entities required to be in effect on the Delivery Date in
connection with the transactions contemplated by this Agreement shall have been
issued.
(n) REPRESENTATIONS AND WARRANTIES. The representations and warranties
of each other party to this Agreement made, in each case, in this Agreement and
in any other Operative Agreement to which it is party, shall be true and
accurate in all material respects as of the Delivery Date (unless any such
representation and warranty shall have been made with reference to a specified
date, in which case such representation and warranty shall be true and accurate
as of such specified date) and each other party to this Agreement shall have
performed and observed, in all material respects, all of its covenants,
obligations and agreements in this Agreement and in any other Operative
Agreement to which it is a party to be observed or performed by it as of the
Delivery Date.
(o) LESSOR'S COST. Owner Participant shall receive reasonably
satisfactory evidence that upon payment of an amount equal to Lessor's Cost,
Seller shall transfer good and marketable title to the Aircraft to the Owner
Trustee.
Section 3.02. CONDITIONS PRECEDENT TO OBLIGATIONS OF LESSEE. The
obligation of Lessee to lease the Aircraft on the Delivery Date is subject to
the satisfaction or waiver by Lessee, on or prior to the Delivery Date, of the
conditions precedent set forth below in this Section 3.02.
(a) DOCUMENTS. Executed originals of the agreements, instruments,
certificates, documents and opinions described in Section 3.01(b) shall have
been received by Lessee, except as specifically provided therein, and shall be
satisfactory to Lessee, unless the failure to receive any such agreement,
instrument, certificate or document is the result of any action or inaction by
Lessee.
(b) CORPORATE DOCUMENTS. (A) An incumbency certificate of Owner
Participant as to the person or persons authorized to execute and deliver the
relevant Operative Agreements on behalf of Owner Participant; and (B) a copy of
the Certificate of Incorporation or Articles of Incorporation or Articles of
Association and By-Laws and general authorizing resolutions of the boards of
directors (or executive committees) or other satisfactory evidence of
authorization of Owner Participant, certified as of the Delivery Date by the
Secretary or an Assistant Secretary of Owner Participant which authorize the
execution, delivery and performance by Owner Participant of each of the
Operative Agreements to which it is a party,
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together with such other documents and evidence with respect to it as Lessee may
reasonably request in order to establish the consummation of the transactions
contemplated by this Agreement and the taking of all corporate proceedings in
connection therewith;
(c) OFFICER'S CERTIFICATE. An Officer's Certificate of Owner
Participant, dated as of the Delivery Date, stating that its representations and
warranties set forth in this Agreement are true and correct as of the Delivery
Date (or, to the extent that any such representation and warranty expressly
relates to an earlier date, true and correct as of such earlier date);
(d) OTHER CONDITIONS PRECEDENT. Each of the conditions set forth in
Sections 3.01(c), (d), (f), (g), (h), (i), (j), (l) and (n) shall have been
satisfied or waived by Lessee, unless the failure of any such condition to be
satisfied is the result of any action or inaction by Lessee.
Section 3.03. POST-REGISTRATION OPINION. Promptly upon the
registration of the Aircraft and the recordation of the documents referenced in
Section 3.01(j)(ii), Lessee will direct Daugherty, Fowler, Peregrin & ▇▇▇▇▇▇, a
Professional Corporation, special counsel in Oklahoma City, Oklahoma, to deliver
to Lessee, Owner Participant and Owner Trustee a favorable opinion or opinions
addressed to each of them with respect to such registration and recordation.
Section 3.04. CERTIFICATE OF AIRWORTHINESS. Promptly upon inspection
by the FAA, Lessee will provide Owner Participant with a copy of a current,
valid Standard Certificate of Airworthiness for the Aircraft duly issued by the
FAA
ARTICLE 4.
LESSEE'S REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 4.01. LESSEE'S REPRESENTATIONS AND WARRANTIES. The Lessee
represents and warrants that, as of the Delivery Date (unless any such
representation and warranty is specifically made as of an earlier date, in which
case the Lessee represents and warrants as of such earlier date):
(a) the Lessee is a corporation duly organized and validly existing
and is in good standing under the laws of the State of New York, has its
principal place of business and chief executive office (as such terms are used
in Article 9 of the Uniform Commercial Code) in Indianapolis, Indiana at the
address set forth in Section 12.01(a), and is duly qualified to do business as a
foreign corporation and is in good standing in each jurisdiction where the
failure to be so qualified or in good standing would have a materially adverse
effect on its business or would impair its ability to perform its obligations
under the Lessee Documents;
(b) the Lessee has full power, authority and legal right to conduct
its business and operations as currently conducted and to own or hold under
lease its properties and to enter into and perform its obligations under the
Lessee Documents;
(c) the Lessee is a Certificated Air Carrier;
(d) the Lessee possesses all necessary certificates, franchises,
licenses, permits, rights and concessions and consents (collectively "permits")
which are necessary to the
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operation of the routes flown by it and the conduct of its business and
operations as currently conducted and each such permit is in full force and
effect, except for any such permits the failure to have or maintain which would
not have a material adverse effect on the Lessee or its ability to perform its
obligations under the Lessee Documents;
(e) the execution, delivery and performance of the Lessee Documents by
the Lessee have been duly authorized by all necessary corporate action on the
part of the Lessee and do not require any stockholder approval, or approval or
consent of any trustee or holder of any indebtedness or obligations of the
Lessee, and each such Lessee Documents has been duly executed and delivered and
constitutes the legal, valid and binding obligations of the Lessee enforceable
against it in accordance with the terms thereof except as such enforceability
may be limited by bankruptcy, insolvency, or other similar laws or by general
equitable principles;
(f) no authorization, consent or approval of or other action by, and
no notice to or filing with, any United States federal or state governmental
authority or regulatory body is required for the execution, delivery or
performance by the Lessee of the Lessee Documents except for such registrations,
applications and recordings referred to in the opinion of Daugherty, Fowler,
Peregrin & ▇▇▇▇▇▇, a Professional Corporation delivered pursuant to
Section 3.01(b)(xvi)(D) and the filings referred to in Section 3.01(j)(ii);
(g) neither the execution, delivery or performance by the Lessee of
the Lessee Documents nor compliance with the terms and provisions hereof or
thereof, conflicts or will conflict with or results or will result in a breach
or violation of any of the terms, conditions or provisions of, or will require
any consent (other than the Embraer Assignment Documents, the Seller Assignment
Documents and Engine Warranty Assignment and Consent) or approval under, any
Applicable Law or the charter documents, as amended, or bylaws, as amended, of
the Lessee or any order, writ, injunction or decree of any court or governmental
authority against the Lessee or by which it or any of its properties is bound or
any indenture, mortgage or contract or other agreement or instrument to which
the Lessee is a party or by which it or any of its properties is bound, or
constitutes or will constitute a default thereunder or results or will result in
the imposition of any Lien upon the Aircraft or any of its properties (other
than Permitted Liens), except for any such conflict, breach or default which
would not have a material adverse effect on the Lessee or its ability to perform
its obligations under the Lessee Documents;
(h) except as disclosed in any of the financial statements referred to
in Section 4.01(p) or as otherwise disclosed in writing to the Owner
Participant, there are no pending or, to the knowledge of the Lessee, threatened
actions, suits, investigations or proceedings against or affecting the Lessee or
any of its properties before or by any court, governmental agency, arbitration
board, tribunal or other administrative agency which, (A) may reasonably be
expected to have a materially adverse effect on the Lessee's consolidated
financial condition, business, or operations, or (B) would materially adversely
affect the ability of the Lessee to consummate the transactions contemplated by
the Operative Agreements or perform its obligations under the Lessee Documents;
(i) except for (A) the registration in the Owner Trustee's name of the
Aircraft pursuant to the Transportation Code, (B) the filing with and, where
appropriate, recordation by the FAA pursuant to the Transportation Code of the
Lease (including Lease Supplement No. 1)
11
and (C) the filing of the financing statement referred to in Section 3.01(k), no
further action, including any filing or recording of any document, is necessary
or advisable in order to establish the Owner Trustee's title to and interest in
the Aircraft and the Lessor's Estate as against the Lessee and any third
parties;
(j) the Owner Trustee has received good and marketable title to the
Aircraft, free and clear of all Liens, except Permitted Liens;
(k) all premiums which have become due with respect to the insurance
required to be provided by the Lessee on or prior to the Delivery Date under
Section 9 of the Lease have been paid by the Lessee;
(l) no Default or Event of Default exists and no Event of Loss, or
event which with the passage of time would constitute an Event of Loss, exists;
(m) the Aircraft is in such condition so as to qualify the Aircraft,
upon inspection by the FAA, for (A) certification by the FAA under the
Transportation Code as to type and airworthiness, and (B) issuance of a standard
airworthiness certificate by the FAA pursuant to the Transportation Code
(n) each of the Lessee and any subsidiary of the Lessee is either (x)
not an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended,
or (y) exempt from the registration requirements thereof;
(o) there are no broker's or underwriter's fees payable on behalf of
the Lessee in connection with the transactions contemplated in the Operative
Agreements, other than those of the Lessee Advisor (as defined in
Section 8.01(a)) referred to in Article 8 hereof;
(p) the audited consolidated balance sheet of Lessee as of December
31, 2000 and the related consolidated statements of operations and cash flows
for the period then ended have been prepared in accordance with generally
accepted accounting principles in the United States and fairly present in all
material respects the financial condition of Lessee and its consolidated
subsidiaries as of such date and the results of its operations and cash flows
for such period, and since December 31, 2000, there has been no material adverse
change in such financial condition or operations of Lessee, except for matters
disclosed in (a) the financial statements referred to above or (b) otherwise
disclosed in writing by Lessee to the Owner Participant;
(q) to the best of Lessee's knowledge, Lessee is not in default under,
or in violation of, any Applicable Law, the violation of which would give rise
to a Material Adverse Change to Lessee;
(r) neither the Lessee nor any Person authorized by the Lessee to act
on its behalf has directly or indirectly offered any beneficial interest in the
ownership of the Aircraft or the Lease or any interest in the Trust Estate and
Trust Agreement, or in any similar security relating to the Aircraft, the Lease,
the Trust Estate or the Trust Agreement, for sale to, or solicited any offer to
acquire any such interest or security from, or has sold any such interest or
12
security to, any Person in violation of the Securities Act or any applicable
state securities laws; and
(s) Owner Trustee, as lessor under the Lease, is entitled to the
benefits of Section 1110 (as currently in effect) with respect to the Aircraft.
Section 4.02. CERTAIN COVENANTS OF LESSEE. The Lessee covenants and
agrees as follows:
(a) FILINGS AND RECORDINGS. The Lessee will cause to be done,
executed, acknowledged and delivered at the Lessee's cost and expense all such
further acts, conveyances and assurances as the Owner Trustee or the Owner
Participant shall reasonably require for accomplishing the purposes of the
Operative Agreements. Without limiting the generality of this Section 4.02(a),
the Lessee will promptly take, or cause to be taken, at the Lessee's cost and
expense, such action with respect to the recording, filing, re-recording and
re-filing of the Lease (including each supplement thereto), and any financing
statements or other instruments as may be reasonably requested by the Owner
Trustee and appropriate, to maintain the Owner Trustee's title to and interest
in the Aircraft and the Lessor's Estate, as against the Lessee and any third
parties, or if the Lessee cannot itself take, or cause to be taken, such action,
will furnish to the Owner Trustee timely notice of the necessity of such action,
together with such instruments, in execution form, and such other information as
may be required to enable either of them to take such action at the Lessee's
cost and expense in a timely manner.
(b) REGISTRATION. From and after the Delivery Date, the Lessee shall
cause the Aircraft to be duly registered, and at all times to remain duly
registered, in the name of the Owner Trustee (PROVIDED, that the Owner Trustee
and the Owner Participant shall be and remain Citizens of the United States),
under the Transportation Code, and shall furnish to the Owner Trustee such
information as may be required to enable the Owner Trustee to make application
for such registration; PROVIDED, HOWEVER, that the Lessee may, at any time cause
the Aircraft to be appropriately re-registered under the laws of a country with
which at the time of such registration the United States maintains normal
diplomatic relations and is listed on Exhibit E to the Lease; PROVIDED that:
(i) at the time of re-registration, no Specified Default exists
or would occur as a result of such re-registration;
(ii) the Lessee shall pay all fees and expenses (including the
reasonable fees and expenses of local counsel in such country) relating to
such re-registration;
(iii) the Lessee shall, at its cost, cause the interest of the
Owner Trustee as owner of the Aircraft to be duly registered or recorded
under the laws of such country and at all times thereafter to remain so
duly registered or recorded unless and until the registration of the
Aircraft is changed as provided herein, and shall, at its cost, cause to be
done at all times all other acts including the filing, recording and
delivery of any document or instrument and the payment of any sum necessary
or, by reference to prudent industry practice in such country, advisable in
order to create, preserve and
13
protect such interest in the Aircraft as against the Lessee or any third
parties in such jurisdiction, and the laws of such country would give
effect to the Owner Trustee's title to and ownership interest in the
Aircraft;
(iv) the obligations of the Lessee (and of the Permitted
Sublessee under a Sublease) and the rights and remedies of the Lessor and
the Owner Participant under the Operative Agreements shall remain or be, as
the case may be, legal, valid, binding and enforceable in such country;
(v) the Lessee shall ensure that all insurance required by
Section 9 of the Lease shall be in full force and effect prior to, at the
time of, and after such change in registration and the Owner Participant
and the Owner Trustee shall receive a certificate of Lessee's insurance
broker to such effect;
(vi) the country of such re-registration imposes aircraft
maintenance standards approved by, or at least as stringent as those
approved by, the FAA or the central civil aviation authority of the United
Kingdom, France, Germany, Japan, the Netherlands or Canada;
(vii) it shall not be necessary by reason of such re-registration
or for purposes of enforcing remedies contained in the Lease or the related
Sublease for the Owner Trustee or the Owner Participant to register or
qualify to do business in such country;
(viii) no Liens (except Permitted Liens) shall arise by reason of
such re-registration;
(ix) none of the Owner Trustee and the Owner Participant shall be
subjected to any risk of adverse tax consequences as a result of such
re-registration for which the Lessee does not then indemnify or cause to be
indemnified such Person in a manner satisfactory in form and substance to
such Person;
(x) any export licenses and certificate of deregistration
required in connection with any repossession or return of the Aircraft will
be readily obtainable in the normal course without material delay or
material burden on the Owner Trustee, it being agreed that the Lessee shall
be responsible for the cost thereof;
(xi) there is no tort liability of the owner or lessor of an
aircraft not in possession thereof under the laws of such jurisdiction more
onerous than under the laws of the United States or any state thereof (it
being agreed that, in the event such opinion cannot be given in a form
satisfactory to the Owner Participant, such opinion shall be waived if
insurance reasonably satisfactory to the Owner Participant is provided to
cover such risk);
(xii) unless Lessee shall have agreed to provide insurance
reasonably satisfactory to the Owner Participant covering the risk of
requisition of use of or title to the Aircraft by the government of such
country (so long as the Aircraft is registered under the laws of such
country), the laws of such country require fair compensation by the
14
government of such country payable in currency freely convertible into
Dollars and freely removable from such country (without license or permit,
unless Lessee prior to such proposed reregistration has obtained such
license or permit or such license or permit will be readily obtainable in
the normal course without material delay or material burden on the Owner
Participant) for the taking or requisition by such government of such use
or title;
(xiii) the courts of such proposed country of registry will
respect the choice of New York law to govern the Lease;
(xiv) such re-registration may not be effected until after the
Recovery Period unless the Lessee prepays on a lump sum basis any liability
due under the Tax Indemnity Agreement as a result of such re-registration;
(xv) the Owner Participant and the Owner Trustee shall have
received opinions in scope, form and substance reasonably satisfactory to
them, of counsel, expert in the laws of such country, to the effect set
forth in clauses (iii), (iv) (with respect to the obligations of the Lessee
under the Lease), (vii), (ix), (x), (xi), (xii) and (xiii) of this
Section 4.02(b);
(xvi) such proposed change in registration is made in connection
with a Sublease to a Permitted Air Carrier and such Permitted Sublessee is
domiciled in such country; and
(xvii) Lessee shall deliver such request to Lessor and Owner
Participant in writing at least 20 days in advance of the date of any such
proposed change in registration.
Lessee agrees to pay on an After Tax Basis all reasonable out-of-pocket costs
and expenses (including, without limitation, reasonable counsel fees and
disbursements) of the Owner Participant and the Owner Trustee in connection with
any re-registration pursuant to this Section.
(c) INFORMATION. The Lessee shall promptly furnish to the Owner
Trustee and the Owner Participant such information as may be required to enable
the Owner Trustee and the Owner Participant timely to file any reports required
to be filed by the Owner Trustee as the Lessor and the Owner Participant under
the Lease with any governmental authority as a result of the Owner Trustee's
ownership interest in the Aircraft.
(d) CORPORATE EXISTENCE. The Lessee shall at all times maintain its
corporate existence, except as permitted by Section 4.02(e) hereof, and all of
its rights, privileges and franchises necessary in the normal conduct of its
business, except for any corporate right, privilege or franchise that it
determines is no longer necessary or desirable in the conduct of its business.
(e) MERGER AND CONSOLIDATION. The Lessee shall not, during the Term,
enter into any merger with or into or consolidation with, or sell, convey,
transfer, lease or otherwise dispose of in one or a series of transactions all
or substantially all of its assets as an entirety to any Person, unless the
surviving corporation or Person which acquires by purchase, conveyance,
15
transfer or lease all or substantially all of the assets of the Lessee as an
entirety (i) is a domestic corporation organized and existing under the laws of
the United States or any State of the United States, (ii) is a Citizen of the
United States, (iii) is a Section 1110 Person, so long as such status is a
condition to the availability of Section 1110, (iv) if not the Lessee, executes
a duly authorized, legal, valid, binding, and enforceable agreement, reasonably
satisfactory in form and substance to Owner Trustee and Owner Participant,
containing an effective assumption of all of the Lessee's, as applicable,
obligations hereunder and under the other Operative Agreements, and each other
document contemplated hereby or thereby and delivers such instrument to the
Owner Participant and the Owner Trustee, (v) provides an opinion from counsel
(which counsel may be the Lessee's General Counsel) delivered to the Owner
Trustee and the Owner Participant, which opinion shall be reasonably
satisfactory to the Owner Participant, and an officer's certificate (which may
rely, as to legal matters, on such legal opinion), each stating that such
merger, consolidation, conveyance, transfer, lease or other disposition and the
instrument noted in clause (iv) above comply with this Section 4.02(e), that
such instrument is a legal, valid and binding obligation of, and is enforceable
against, such survivor or Person, and that all conditions precedent herein
provided for relating to such transaction have been complied with, and (vi) such
survivor or Person makes such filings and recordings with the FAA as may be
required pursuant to part A of subtitle VII of ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code to
evidence such merger or consolidation; PROVIDED THAT, no such merger,
consolidation or conveyance, transfer or lease shall be permitted if (1)
immediately after giving effect to such consolidation, merger, purchase,
conveyance, transfer, lease or other disposition, an Event of Default shall have
occurred and be continuing or (2) the surviving Person in such transaction has a
tangible net worth, as determined in accordance with generally accepted
accounting principles immediately following such transaction, of less than
seventy-five percent (75%) of Lessee, as measured immediately prior to such
transaction.
Upon any consolidation or merger, or any conveyance, transfer or lease
of all or substantially all of the assets of the Lessee and the satisfaction of
the conditions specified in this Section 4.02(e), the successor corporation
formed by such consolidation or into which the Lessee is merged or the Person to
which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Lessee under
this Agreement and the Lease and each other Operative Agreement and any other
document contemplated hereby and thereby to which the Lessee is a party with the
same effect as if such successor corporation had been named as the Lessee herein
and therein. No such consolidation or merger, or sale, conveyance, transfer or
lease of all or substantially all of the assets of the Lessee as an entirety
shall have the effect of releasing the Lessee or any successor corporation which
shall theretofore have become the Lessee hereunder in the manner prescribed in
this Section 4.02(e) from its liability hereunder or under the other Operative
Agreements. Nothing contained herein shall permit any lease, sublease, or other
arrangement for the use, operation or possession of the Aircraft except in
compliance with the applicable provisions of the Lease.
(f) CHANGE OF STATE OF INCORPORATION. The Lessee agrees to give prompt
written notice (but in any event within 30 days prior to the expiration of the
period of time specified under Applicable Law to prevent lapse of perfection) to
the Owner Participant and the Owner Trustee of any change of its state of
incorporation or of any change in its corporate name.
16
(g) FINANCIAL STATEMENTS. The Lessee agrees to furnish to the Owner
Participant during the Term:
(i) within 60 days after the end of each of the first three
fiscal quarters in each fiscal year of the Lessee, unaudited consolidated
balance sheets of the Lessee and its subsidiaries (if any) as of the end of
such quarter and related consolidated statements of income, shareholder's
equity and cash flows of the Lessee and its subsidiaries (if any) for the
period commencing at the end of the previous fiscal year and ending with
the end of such quarter;
(ii) within 120 days after the end of each fiscal year of the
Lessee, a copy of the annual report for such year for the Lessee or the
affiliated group of which the Lessee is a member (on a consolidated basis,
if applicable) and a balance sheet of the Lessee and its subsidiaries (if
any) as of the end of such fiscal year and related statements of income,
shareholder's equity and cash flows of the Lessee for such fiscal year, in
comparative form with the preceding fiscal year, in each case certified by
independent certified public accountants of national standing as having
been prepared in accordance with generally accepted accounting principles
in the United States;
(iii) within 120 days after the end of each fiscal year of the
Lessee, an Officer's Certificate of the Lessee, to the effect that the
signer is familiar with or has reviewed the relevant terms of the Lease and
has made, or caused to be made under his supervision, a review of the
transactions and conditions of the Lessee during the preceding fiscal year
and that such review has not disclosed the existence during such period,
nor does the signer have knowledge of the existence as of the date of such
certificate, of any condition or event which constituted or constitutes a
Default or Event of Default, or, if any such condition or event existed or
exists, specifying the nature and period of existence thereof and what
action the Lessee has taken or is taking or proposes to take with respect
thereof; and
(iv) from time to time, such other non-confidential financial
information as the Lessor or the Owner Participant may reasonably request.
(h) FILING OF DOCUMENTS. Lessee, at its sole cost and expense, will
cause the documents filed with the FAA pursuant to Section 3.01(j), the
financing statements required pursuant to Section 3.01(k) and all continuation
statements (and any amendments necessitated by any combination, consolidation or
merger pursuant to Section 4.02(e), any change of its state of incorporation, or
any change in its corporate name) in respect of such financing statements to be
prepared and, subject only to the execution and delivery thereof by Owner
Trustee, duly and timely filed and recorded, or filed for recordation, to the
extent permitted under the Transportation Code (with respect to such documents
filed with the FAA) or the Uniform Commercial Code or similar law of any other
applicable jurisdiction (with respect to such other documents).
(i) EXPORT AND IMPORT OF THE AIRCRAFT; CERTIFICATION. Promptly
following delivery of the Aircraft under the Lease, Lessee shall, at no cost or
expense to the Lessor or the Owner Participant, but with each of their
cooperation, if necessary, take or cause Seller to take
17
all actions necessary to (i) export the Aircraft from Brazil, (ii) import the
Aircraft to the United States, and (iii) procure the issuance by the FAA
pursuant to the Transportation Code of a type certificate and standard
certificate of airworthiness, in each case in compliance with all Applicable
Laws.
(j) ANNUAL FOREIGN OPINION. If the Aircraft has been registered in a
country other than the United States pursuant to Section 4.02(b), Lessee will
furnish to Owner Trustee and Owner Participant annually after such registration
is effected, an opinion of special counsel reasonably satisfactory to Owner
Participant stating that, in the opinion of such counsel, either that (i) such
action has been taken with respect to the recording, filing, rerecording and
refiling of the Operative Agreements and any supplements and amendments thereof
as is necessary to establish, perfect and protect Owner Trustee's right, title
and interest in and to the Aircraft and the Operative Agreements, reciting the
details of such actions, or (ii) no such action is necessary to maintain the
perfection of such right, title and interest.
Section 4.03. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of the Lessee provided in Section 4.01 and in any
other Operative Agreement shall survive the delivery of the Aircraft and the
expiration or other termination of this Agreement and the other Operative
Agreements.
ARTICLE 5.
OTHER PARTIES' REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 5.01. REPRESENTATIONS, WARRANTIES AND COVENANTS OF OWNER
PARTICIPANT.
(a) REPRESENTATIONS AND WARRANTIES. The Owner Participant represents
and warrants that, as of the Delivery Date (unless any such representation and
warranty is specifically made as of an earlier date, in which case the Owner
Participant represents and warrants as of such earlier date):
(i) it is a corporation duly incorporated and validly existing in
good standing under the laws of State of Delaware and it has full corporate
power, authority and legal right to carry on its present business and
operations, to own or lease its properties and to enter into and to carry
out the transactions contemplated by this Agreement and the other Operative
Agreements to which it is party;
(ii) the execution, delivery and performance by it of this
Agreement and the other Operative Agreements to which it is party have been
duly authorized by all necessary corporate action on its part;
(iii) neither the execution, delivery or performance by the Owner
Participant of the Operative Agreements to which it is party, nor
compliance with the terms and provisions hereof or thereof, conflicts or
will conflict with or results or will result in a breach or violation of
any of the terms, conditions or provisions of, under any law, governmental
rule or regulation applicable to the Owner Participant or the charter
documents, as amended, or bylaws, as amended, of the Owner Participant or
any order, writ, injunction or decree of any court or governmental
authority against the Owner
18
Participant or by which it or any of its properties is bound or any
indenture, mortgage or contract or other agreement or instrument to which
the Owner Participant is a party or by which it or any of its properties is
bound, or constitutes or will constitute a default thereunder or results or
will result in the imposition of any Lien upon any of its properties,
except for any such conflict, breach or default which would not have a
material adverse effect on the Owner Participant or its ability to perform
its obligations under the Operative Agreements;
(iv) the Operative Agreements to which it is party have been duly
executed and delivered by the Owner Participant and constitute the legal,
valid and binding obligations of the Owner Participant enforceable against
it in accordance with their terms except as such enforceability may be
limited by bankruptcy, insolvency, or other similar laws or general
equitable principles;
(v) there are no pending or, to the knowledge of the Owner
Participant, threatened actions, suits, investigations or proceedings
against the Owner Participant before any court, administrative agency or
tribunal which are expected to materially adversely affect the ability of
the Owner Participant to perform its obligations under this Agreement and
the other Operative Agreements to which it is or is to be a party and the
Owner Participant knows of no pending or threatened actions or proceedings
before any court, administrative agency or tribunal involving it in
connection with the transactions contemplated by the Operative Agreements;
(vi) neither the execution and delivery by it of this Agreement
or the other Operative Agreements to which it is a party nor the
performance of obligations hereunder or thereunder requires the consent or
approval of or the giving of notice to, the registration with, or the
taking of any other action in respect of, any governmental authority or
agency that would be required to be obtained or taken by the Owner
Participant except for filings contemplated by this Agreement;
(vii) the funds to be used by the Owner Participant to acquire
its interests under this Agreement do not constitute assets (within the
meaning of ERISA and any applicable rules and regulations) of an ERISA
Plan;
(viii) the Owner Participant is a bank, trust company, insurance
company, financial institution or corporation with a combined capital and
surplus or net worth of at least $50,000,000;
(ix) the Owner Participant acknowledges that the Residual Value
Guarantee Agreement and the Guarantee Agreement have not been disclosed to
or reviewed by the Lessee;
(x) the Owner Participant has not granted any right to the
Manufacturer under the Residual Value Guarantee Agreement or the Guarantee
Agreement which is inconsistent with the rights of the Lessee under the
Operative Agreements; and
19
(xi) the amount guaranteed by the Manufacturer under the Residual
Value Guarantee Agreement is the Guaranteed Amount.
Notwithstanding the foregoing or anything else contained in this
Agreement, the Owner Participant makes no representation or warranty in this
Agreement with respect to laws, rules or regulations relating to aviation or to
the nature or use of the equipment owned by the Owner Trustee, including,
without limitation, the airworthiness, value, condition, workmanship, design,
patent or trademark infringement, operation, merchantability or fitness for use
of the Aircraft, other than such laws, rules or regulations relating to the
citizenship requirements of the Owner Participant under applicable aviation law.
(b) LESSOR'S LIENS. The Owner Participant represents, warrants and
covenants that on the Delivery Date there are no Lessor's Liens attributable to
it (or an Affiliate thereof). The Owner Participant agrees with and for the
benefit of the Lessee and the Owner Trustee that the Owner Participant will, at
its own cost and expense, take such action as may be necessary to duly discharge
and satisfy in full, promptly after the same first becomes known to the Owner
Participant, any Lessor's Lien attributable to the Owner Participant (or an
Affiliate thereof), PROVIDED, HOWEVER, that the Owner Participant shall not be
required to discharge or satisfy such Lessor's Lien which is being contested by
the Owner Participant in good faith and by appropriate proceedings so long as
such proceedings do not involve any material risk of the sale, forfeiture or
loss of the Aircraft or the Lessor's Estate or any interest in any thereof.
(c) ASSIGNMENT OF INTERESTS OF OWNER PARTICIPANT. At any time after
the Delivery Date and subject to satisfaction of the conditions set forth in
this Section 5.01(c), the Owner Participant may assign, convey or otherwise
transfer to a single Person all (but not less than all) of the Beneficial
Interest, PROVIDED that (i) the Owner Participant gives the Lessee at least 10
days' notice of such assignment, conveyance or other transfer, (ii) the Owner
Participant and any Owner Participant Guarantor shall remain liable for all
obligations of the Owner Participant under the Trust Agreement and the other
Operative Agreements to which the Owner Participant is a party to the extent
(but only to the extent) relating to the period on or before the date of such
transfer, (iii) the transferee agrees by a written instrument substantially in
the form attached hereto as Exhibit B-1 (or otherwise in form and substance
reasonably satisfactory to Lessee) to assume liability for, and undertake
performance of, all obligations of the Owner Participant under the Trust
Agreement and the other Operative Agreements to which such Owner Participant is
a party relating to the period after the date of transfer, (iv) the transferee
shall make a representation to the effect that the funds to be used by the
transferee to acquire the Beneficial Interest do not constitute the assets of an
ERISA Plan, (v) at or prior to the time of such transfer, the transferee shall
furnish an opinion of counsel substantially in the form attached hereto as
Exhibit B-3 (or otherwise in form and substance reasonably satisfactory to
Lessee) (which counsel may be in-house counsel) to the effect that such
transferee and any guarantor of the payment and performance obligations of such
transferee, as the case may be, shall have requisite power and authority and
legal right to enter into and carry out the transactions contemplated hereby;
and that such agreement and any guaranty of the transferee's obligations has
been duly authorized, executed and delivered by the transferee or the guarantor
of the payment and performance obligations of such transferee, as the case may
be, and is a valid and binding agreement of the transferee or the guarantor of
the payment and performance obligations of such transferee enforceable in
accordance with its terms, subject to customary exceptions for such
20
opinions and that the transfer does not violate the Applicable Law of the
jurisdiction in which such counsel is located, and (vi) the Lessee shall have
received an opinion from counsel selected by Owner Participant and reasonably
acceptable to Lessee that no withholding tax will be imposed by the U.S. on
Basic Rent, assuming that the Lessee is a U.S. Person. Any such transferee shall
(a) be (i) a bank, savings institution, finance company, leasing company or
trust company, national banking association acting for its own account or in a
fiduciary capacity as trustee or agent under any pension, retirement, profit
sharing or similar trust or fund, insurance company, financial institution,
fraternal benefit society or a corporation acting for its own account having a
combined capital and surplus (or, if applicable, consolidated net worth or its
equivalent) of not less than $50,000,000, (ii) a subsidiary of any Person
described in clause (i) where such Person provides (A) support for the
obligations assumed by such transferee subsidiary reasonably satisfactory to the
Lessee and the Owner Trustee or (B) a guaranty of such transferee subsidiary's
obligations substantially in the form attached hereto as Exhibit B-2 (or
otherwise in form and substance reasonably satisfactory to Lessee and Owner
Trustee), or (iii) an Affiliate of the transferring Owner Participant, so long
as such Affiliate has a combined capital and surplus (or, if applicable,
consolidated net worth or its equivalent) of not less than $50,000,000 (unless
the Owner Participant remains liable for the obligations of such Affiliate under
the Operative Agreements, in which case there shall be no such net worth
requirement), (b) be legally capable of binding itself to the obligations of the
Owner Participant and shall expressly agree to assume all obligations of the
Owner Participant under the Trust Agreement and this Agreement and (c) provide
representations, warranties, and covenants substantially similar to those
contained in clauses (a) and (c) of this Section 5.01; PROVIDED that, without
the prior written consent of the Lessee, such transferee shall not be an airline
or other aircraft operator or competitor of the Lessee in the business of air
transportation or an Affiliate of any thereof unless such Affiliate is (i)
General Electric Company, International Lease Finance Corporation, GPA, GATX
Corporation or Bouillon Aviation, (ii) any wholly-owned subsidiary of an entity
listed in the foregoing clause (i) that is (X) a special purpose corporation
limited to holding Owner Participant's interest in the transactions or (Y)
primarily engaged in the business of owning and leasing assets to third-party
lessees and which is not engaged in the business of an airline, other commercial
aircraft operation or freight forwarder or (iii) an entity from which Lessee has
leased an aircraft directly (or through a trust) and not as a result of the
transfer to such entity of any aircraft subject to an existing lease with
Lessee; PROVIDED that Lessee's consent shall not be required if an Event of
Default shall have occurred and be continuing at the time of such transfer; and
PROVIDED FURTHER that neither such transferee nor any Affiliate thereof shall
(x) be a party to any material litigation or arbitration (whether as plaintiff
or defendant) with the Lessee or any Affiliate of the Lessee or (y) be
attempting a hostile takeover of the Lessee or any Affiliate of the Lessee. A
transferee hereunder shall be a Citizen of the United States or has established
a voting trust, voting powers or other arrangement reasonably satisfactory to
the Owner Trustee and the Lessee to permit the Owner Trustee to be the
registered owner of the Aircraft under the Transportation Code, without in any
way restricting the Lessee's use and operation of the Aircraft. The Owner
Trustee shall not be on notice of or otherwise bound by any such assignment,
conveyance or transfer unless and until it shall have received an executed
counterpart of the instrument of such assignment, conveyance or transfer. Upon
any such disposition by the Owner Participant to a transferee as above provided,
the transferee shall be deemed the "Owner Participant" for all purposes of the
Operative Agreements, and shall be deemed to have acquired the same interest in
the Lessor's Estate as theretofore held by its
21
transferor; and each reference therein to the "Owner Participant" shall
thereafter be deemed a reference to such transferee and the transferring Owner
Participant shall be released from all of its obligations under the Operative
Agreements to the extent such obligations are assumed by such transferee. All
reasonable fees and expenses incurred by Lessee, Owner Participant or Owner
Trustee in connection with any transfer by the Owner Participant permitted by
this Section 5.01(c) will be reimbursed by the Owner Participant, unless an
Event of Default has occurred and is continuing, in which case any fees and
expenses incurred by Lessee shall not be so reimbursed; PROVIDED, HOWEVER, that
in each case bills shall be submitted to the Owner Participant prior to payment.
Each of the parties hereto agree, to the extent so requested by the Owner
Participant, to use reasonable efforts to cooperate with the Owner Participant
in effecting any assignment, conveyance or other transfer permitted pursuant to
this Section 5.01(c), including providing its written consent and
acknowledgement to any such assignment, conveyance or other transfer and, in the
case of the Lessee, providing new insurance certificates that reflect the
interest of the transferee. After the expiration or termination of the Term of
the Lease, the Owner Participant may freely assign, convey or otherwise transfer
all or any part of the Beneficial Interest without compliance with this
Section 5.01(c), provided that no such transfer shall release the Owner
Participant from its obligations under the Operative Agreements accrued prior to
the end of the Term.
(d) ACTIONS WITH RESPECT TO LESSOR'S ESTATE, ETC. The Owner
Participant agrees that it will not take any action to subject the Lessor's
Estate or the trust established by the Trust Agreement, as debtor, to the
reorganization or liquidation provisions of the Bankruptcy Code or any other
applicable bankruptcy or insolvency statute.
(e) CITIZENSHIP. The Owner Participant agrees, solely for the benefit
of the Lessee and the Owner Trustee, that if at any time on or after the
Delivery Date when the Aircraft is registered or the Lessee proposes to register
the Aircraft in the United States (i) either the Owner Participant shall cease
to be, or an event which has been publicly disclosed has occurred of which the
Owner Participant has knowledge and which will cause the Owner Participant to
cease to be, a Citizen of the United States, and (ii) the Aircraft shall or
would therefore become ineligible for registration in the name of the Owner
Trustee under the Transportation Code and regulations then applicable thereunder
(such eligibility to be determined without regard to any provision of law that
permits the U.S. registration of the Aircraft by restricting where it is based
or used), then the Owner Participant shall give notice thereof to the Lessee and
the Owner Trustee and shall (at its own expense and without any reimbursement or
indemnification from the Lessee) immediately (and in any event within a period
of 20 days) promptly (x) effect a voting trust or other similar arrangement, (y)
transfer in accordance with the terms of this Agreement and the Trust Agreement
all its rights, title and interest in and to such Trust Agreement, the Lessor's
Estate and this Agreement, or (z) take any other alternative action that would
prevent any deregistration, or maintain or permit the United States
registration, of the Aircraft (determined without regard to any provision of law
that permits the U.S. registration of the Aircraft by restricting where it is
based or used). Each party hereto agrees, upon the request and at the sole
expense of the Owner Participant, to cooperate with the Owner Participant in
complying with its obligations under the provisions of the first sentence of
this Section 5.01(e), but without any obligation on the part of such other party
to take any action believed by it in good faith to be unreasonably burdensome to
such party or materially adverse to its business interests.
22
(f) GUARANTEES. The Owner Participant agrees for the benefit of the
Lessee that it shall not make or consent to any changes to the Residual Value
Guarantee Agreement or the Guarantee Agreement that would make the
representation in Section 5.01(a)(x) incorrect at the time of such change or
that would increase the Guaranteed Amount and the Owner Participant agrees to
provide notice to the Lessee of any decrease in the Guaranteed Amount and the
amount of such decrease.
Section 5.02. CITIZENSHIP.
(a) GENERALLY. The Owner Trustee, in its individual capacity,
represents and warrants that it is and on the Delivery Date will be a Citizen of
the United States. If the Owner Trustee in its individual capacity does not
comply with the requirements of this Section 5.02, the Owner Trustee and the
Lessee hereby agree that no Default shall be deemed to exist due to
non-compliance by the Lessee with the registration requirements in the Lease or
in Section 4.02(b) hereof occasioned solely by such noncompliance of the Owner
Trustee.
(b) OWNER TRUSTEE. The Owner Trustee, in its individual capacity,
covenants that if at any time on or after the Delivery Date any of its
Responsible Officers shall have actual knowledge that it has ceased to be a
Citizen of the United States, it will resign immediately as the Owner Trustee if
such citizenship is necessary for registration of the Aircraft in the Owner
Trustee's name under the Transportation Code as in effect at such time (such
necessity to be determined without regard to any provision of law that permits
the U.S. registration of the Aircraft by restricting where it is based or used)
or, if it is not necessary for such registration, if the Owner Trustee is
informed in writing by the Lessee or the Owner Participant that such lack of
United States citizenship would have any adverse effect on the Lessee or the
Owner Participant. The Owner Trustee, in its individual capacity, further
covenants that if at any time it appears reasonably probable that it will cease
to be a Citizen of the United States based on information that is (i) known to a
Responsible Officer of the Owner Trustee or (ii) generally known to the public,
it will promptly so notify, to the extent permitted by law, all parties to this
Agreement.
Section 5.03. REPRESENTATIONS, WARRANTIES AND COVENANTS OF TRUST
COMPANY AND THE OWNER TRUSTEE.
(a) REPRESENTATIONS AND WARRANTIES. In addition to and without
limiting its other representations and warranties provided for in this Article
5, Trust Company represents and warrants, in its individual capacity with
respect to items (i), (ii), (iii)(A), (iv), (v), (vi), (vii), (viii), (ix) and
(x) below, and as the Owner Trustee with respect to items (iii)(B) and (iv), on
the Delivery Date that:
(i) it is a national banking association duly organized and
validly existing in good standing under the laws of the United States with
its principal place of business and chief executive office (as such terms
are used in Article 9 of the Uniform Commercial Code) in the State of Utah
at the address set forth in Section 12.01(b), and has full corporate power
and authority, in its individual capacity or (assuming the Trust Agreement
has been duly authorized, executed and delivered by the Owner Participant)
as the Owner Trustee, as the case may be, to carry on its business as now
conducted, and
23
to execute, deliver and perform this Agreement and the Operative Agreements
to which it is or is to be a party;
(ii) the execution, delivery and performance by Trust Company,
either in its individual capacity or as the Owner Trustee, as the case may
be, of this Agreement and the Operative Agreements to which it is or is to
be party have been duly authorized by all necessary corporate action on its
part, and do not contravene its articles of association or by-laws or other
constitutional documents; each of this Agreement and the other Operative
Agreements to which it is or is to be a party has been duly authorized, and
has been duly executed and delivered by Trust Company, either in its
individual capacity or as the Owner Trustee, as the case may be, and
neither the execution and delivery thereof nor Trust Company performance of
or compliance with any of the terms and provisions thereof will violate any
federal or Utah law or regulation governing Trust Company's banking or
trust powers;
(iii) (A) assuming due authorization, execution and delivery by
each other party thereto, each of the Operative Agreements to which it is
or is to be party when duly executed and delivered will, to the extent each
such document is entered into by Trust Company in its individual capacity,
constitute the legal, valid and binding obligation of Trust Company in its
individual capacity enforceable against it in such capacity in accordance
with its respective terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization or other similar laws or equitable
principles of general application to or affecting the enforcement of
creditors' rights (regardless of whether enforceability is considered in a
proceeding in equity or at law), and the performance by Trust Company in
its individual capacity of any of its obligations thereunder does not
contravene any lease, regulation or contractual restriction binding on
Trust Company in its individual capacity;
(B) assuming due authorization, execution and delivery by each
other party thereto, each of the Operative Agreements to which it is or is
to be party when duly executed and delivered will, to the extent each such
document is entered into by the Owner Trustee in its trust capacity,
constitute the legal, valid and binding obligation of the Owner Trustee
enforceable against it in such capacity in accordance with its respective
terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws or general equitable
principles, and the performance by the Owner Trustee of any of its
obligations thereunder does not contravene any lease, regulation or
contractual restriction binding on the Owner Trustee;
(iv) there are no pending or, to its knowledge, threatened
actions or proceedings against Trust Company before any court or
administrative agency which would materially adversely affect the ability
of Trust Company, either in its individual capacity or as the Owner
Trustee, as the case may be, to perform its obligations under the Operative
Agreements to which it is or is to be party;
(v) its chief executive office (as such term is defined in
Article 9 of the Uniform Commercial Code) is ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ and it
24
shall give the Lessee and the Owner Participant at least 30 days' prior
written notice in the event of any change in its state of incorporation,
chief executive office or name;
(vi) neither the execution and delivery by it, either in its
individual capacity or as the Owner Trustee, as the case may be, of any of
the Operative Agreements to which it is or is to be a party, requires on
the part of Trust Company in its individual capacity or any of its
Affiliates the consent or approval of or the giving of notice to, the
registration with, or the taking of any other action in respect of, any
federal or governmental authority or agency governing its banking or trust
powers;
(vii) the Owner Trustee holds whatever title to the Aircraft as
was conveyed to it by the Seller and the Aircraft is free of Lessor's Liens
attributable to Trust Company in its individual capacity;
(viii) Trust Company is a Citizen of the United States;
(ix) Trust Company has made a filing with the New York State
Banking Department under Section 131.3 of the New York State Banking Law
with respect to the trust formed by the Trust Agreement; and
(x) there are no Expenses or Taxes that may be imposed on or
asserted against the Trust, the Trust Estate or any part thereof or any
interest therein, Lessee, Owner Participant or Owner Trustee (except, as to
Owner Trustee, Taxes imposed on the fees payable to Owner Trustee) under
the laws of the State of Utah in connection with the execution, delivery or
performance of any Operative Agreement by Owner Trustee, which Expenses or
Taxes would not have been imposed if Owner Trustee had not (x) had its
principal place of business in, (y) performed (in its individual capacity
or as Owner Trustee) any or all of its duties under the Operative
Agreements in or (z) engaged in any activities unrelated to the
transactions contemplated by the Operative Agreements in, the State of
Utah.
(b) LESSOR'S LIENS. Trust Company, in its individual capacity, further
represents, warrants and covenants that there are no Lessor's Liens attributable
to it in its individual capacity on the Delivery Date. The Owner Trustee, in its
trust capacity, and at the cost and expense of the Lessee, covenants that it
will in its trust capacity promptly, and in any event within 30 days after the
same shall first become known to it, take such action as may be necessary to
discharge duly any Lessor's Liens (other than a Permitted Security Interest)
attributable to it in its trust capacity. Trust Company, in its individual
capacity, covenants and agrees that it will at its own expense take such action
as may be necessary to duly discharge and satisfy in full, promptly, and in any
event within 30 days after the same shall first become known to it, any Lessor's
Liens attributable to it in its individual capacity which may arise at any time
after the date of this Agreement.
(c) INDEMNITY FOR LESSOR'S LIENS. Trust Company, in its individual
capacity, agrees to indemnify and hold harmless the Lessee, the Owner
Participant and the Owner Trustee from and against any loss, cost, expense or
damage which may be suffered by the Lessee, the Owner Participant or the Owner
Trustee as a result of the failure of Trust Company to discharge
25
and satisfy any Lessor's Liens attributable to it in its individual capacity, as
described in Section 5.03(b) hereof.
(d) SECURITIES ACT. None of Trust Company, the Owner Trustee or any
Person authorized by either of them to act on its behalf has directly or
indirectly offered any interest in the Lessor's Estate, or in any similar
security relating to the Lessor's Estate, for sale to, or solicited any offer to
acquire any such interest or security from, or has sold any such interest or
security to, any Person in violation of the Securities Act or any applicable
state securities laws.
(e) ACTIONS WITH RESPECT TO LESSOR'S ESTATE, ETC. Neither Trust
Company, in its individual capacity, nor the Owner Trustee will take any action
to subject the Lessor's Estate or the trust established by the Trust Agreement,
as debtor, to the reorganization or liquidation provisions of the Bankruptcy
Code or any other applicable bankruptcy or insolvency statute.
(f) OTHER BUSINESS. Owner Trustee will not enter into any business or
other activity except as contemplated by the Operative Agreements.
(g) PERFORMANCE OF AGREEMENTS. Owner Trustee shall perform its
obligations under the Operative Agreements to which it is a party in accordance
with the terms thereof.
Section 5.04. THE LESSEE'S RIGHT OF QUIET ENJOYMENT. Notwithstanding
any other provision of any of the Operative Agreements, each other party to this
Agreement agrees, severally and as to its own actions only, that it will not, so
long as no Event of Default shall have occurred and be continuing, take or cause
to be taken any action contrary to the Lessee's rights under the Lease,
including, without limitation, its rights to possession, use and quiet enjoyment
of the Aircraft during the Term, PROVIDED that nothing contained herein shall
affect any of the rights of the Owner Participant or the Owner Trustee expressly
granted to such Person under any Operative Agreement.
Section 5.05. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS.
Representations, warranties and covenants of the Owner Participant and the
Owner Trustee (in its individual or trust capacity) provided for in this Article
5, and their respective obligations under any and all of them, shall survive the
delivery of the Aircraft and the expiration or other termination of this
Agreement and the other Operative Agreements.
Section 5.06. COMPLIANCE WITH TRUST AGREEMENT, ETC. Each of the Owner
Participant, Trust Company, and the Owner Trustee agrees with the Lessee that so
long as the Lease shall be in effect it will (i) comply with all of the terms of
the Trust Agreement applicable to it in its respective capacity, the
noncompliance with which would materially adversely affect any such party and
(ii) not take any action, or cause any action to be taken, to amend, modify or
supplement any other provision of the Trust Agreement in a manner that would
materially adversely affect any such party without the prior written consent of
such party. The Owner Trustee confirms for the benefit of the Lessee that it
will comply with the provisions of Article 2 of the Trust Agreement.
Notwithstanding anything else to the contrary in the Trust Agreement, so long as
the Lease remains in effect, the Owner Participant agrees not to terminate or
revoke the trust created by the Trust Agreement without the consent of the
Lessee.
26
ARTICLE 6.
TAXES
Section 6.01. LESSEE'S OBLIGATION TO PAY TAXES.
(a) GENERALLY. The Lessee agrees promptly to pay when due, and to
indemnify on an After Tax Basis and hold each Tax Indemnitee harmless from all
license, recording, documentary, registration and other fees and all taxes
(including, without limitation, income, gross receipts, sales, rental, use,
value added, property (tangible and intangible), AD VALOREM, excise and stamp
taxes), fees, levies, imposts, recording duties, duties, charges, assessments or
withholdings of any nature whatsoever, together with any assessments, penalties,
fines, additions to tax or interest thereon (individually, a "Tax," and
collectively called "Taxes"), however imposed or asserted (whether imposed upon
any Tax Indemnitee, the Lessee, all or any part of the Aircraft, Airframe, any
Engine or any Part or the Lessor's Estate, Rent, or otherwise upon or with
respect to any Operative Agreement or any transactions contemplated thereunder
or any payments thereunder or otherwise in connection therewith), by any
Federal, state or local government or taxing authority in the United States, or
by any government or taxing authority of a foreign country or of any political
subdivision or taxing authority thereof or by a territory or possession of the
United States or an international taxing authority, in any such case as relating
to or measured by:
(i) the construction, purchase, charter, rental, assignment,
presence, overhaul, control, acceptance, rejection, delivery, nondelivery,
transport, location, ownership, registration, reregistration,
deregistration, insuring, assembly, possession, repossession, operation,
use, non-use, condition, maintenance, repair, improvement, conversion,
sale, return, abandonment, preparation, installation, storage, redelivery,
replacement, manufacture, leasing, subleasing, sub-subleasing,
modification, alteration, rebuilding, importation, transfer of title,
transfer of registration, exportation or other application or disposition
of, or the imposition of any Lien (or the incurrence of any liability to
refund or pay over any amount as a result of any Lien) on, the Aircraft,
the Airframe, any Engine or any Part or any interest therein;
(ii) amounts payable under the Operative Agreements;
(iii) the Aircraft, or the income or other proceeds (x) received
with respect to the Aircraft attributable to the transactions contemplated
by the Operative Agreements or (y) held by the Owner Trustee under the
Trust Agreement or after an Event of Default under the Lease;
(iv) with respect to any Operative Agreement, any interest
therein or by reason of the transactions described in or contemplated by
the Operative Agreements;
(v) the Aircraft, the Airframe, any Engine or any Part;
(vi) the rentals (including Basic Rent and Supplemental Rent),
receipts, earnings, principal, interest, fees, proceeds and any other
income or amounts payable,
27
whether actual or deemed, arising upon, under or in connection with any of
the Operative Agreements;
(vii) in the case of the Owner Participant, any "prohibited
transaction," within the meaning of Section 406 of ERISA or
Section 4975(c)(1) of the Code, arising out of or in connection with the
acquisition or holding of the Owner Participant's interest in the Trust
Estate.
(b) EXCEPTIONS. The indemnity provided for in Section 6.01(a) shall
not extend to any of the following:
(i) With respect to a Tax Indemnitee, Taxes, whether imposed by
withholding or otherwise, based upon, measured by or with respect to the
net or gross income, items of tax preference or minimum tax or excess
profits, alternative minimum taxes, receipts, capital, franchise, net worth
(whether, denominated income, excise, capital stock, or doing business
taxes) or other similarly-based taxes (other than taxes that are in the
nature of, sales, use, transfer, ad valorem, stamp, property, or similar
taxes) ("Income Taxes") imposed by the United States or by any state, local
or foreign jurisdiction, PROVIDED, HOWEVER, that this clause shall not
exclude from the indemnity described in Section 6.01(a) above any such
Income Taxes to be imposed by any such jurisdiction (other than the United
States or any state or local taxing authority in any state in the United
States) as a result of (I) the operation, registration, location, presence,
or use of the Aircraft, Airframe, any Engine or any Part thereof, by the
Lessee or any Affiliate thereof or any Sublessee within the jurisdiction of
the taxing authority imposing such Tax, (II) the presence or activities of
the Lessee or any Affiliate thereof or any Sublessee within the
jurisdiction of the taxing authority imposing such Tax, (III) the status of
the Lessee or any Affiliate thereof or any Sublessee as a foreign entity or
as an entity owned in whole or in part by foreign persons, or (IV) the
Lessee or any Affiliate thereof or any Sublessee having made (or having
been deemed to have made) payments to such Tax Indemnitee from the
jurisdiction of the taxing authority imposing such Tax,;
(ii) Taxes imposed with respect to any period beginning after the
earlier of (A) the discharge in full of the Lessee's obligation, if any, to
pay Termination Value under and in accordance with the Lease, (B) the
expiration of the Term of the Lease or (C) the termination of the Lease in
accordance with the applicable provisions of the Lease thereof;
(iii) As to the Owner Trustee, Taxes imposed against the Owner
Trustee upon or with respect to any fees for services rendered in its
capacity as Owner Trustee under the Trust Agreement;
(iv) With respect to any Tax Indemnitee, Taxes resulting from the
willful misconduct or gross negligence of such Tax Indemnitee or a Related
Tax Indemnitee;
(v) Taxes imposed on the Owner Trustee or the Owner Participant
or any successor, assign or Affiliate thereof which became payable by
reason of any
28
mortgage, pledge, financing, voluntary transfer or disposition by such Tax
Indemnitee subsequent to the Delivery Date, including revocation of the
Trust, of any interest in some or all of the Aircraft, Airframe, Engines or
Parts thereof or its interest in the Lessor's Estate or a transfer or
disposition of shares or other interests in the Owner Trustee or the Owner
Participant or a disposition in connection with a bankruptcy or similar
proceedings involving either the Lessor or the Owner Participant or a
transfer or disposition of shares or other interests in the Owner Trustee
or the Owner Participant in each case other than (A) transfers resulting
from a loss, substitution or modification of the Aircraft, Engines or any
Part, (B) transfers pursuant to the Lessor's exercise of remedies in
accordance with Section 17 of the Lease, (C) termination of the Lease upon
the Lessee's exercise of Lessee's options pursuant to Section 14 of the
Lease, or (D) a transfer to Lessee pursuant to Section 13(b) of the Lease;
the parties agree to cooperate to minimize any such Taxes covered by this
provision;
(vi) Taxes subject to indemnification by the Lessee pursuant to
the Tax Indemnity Agreement;
(vii) Taxes imposed on a successor, assign or other transferee of
any interest of a Tax Indemnitee in the Aircraft, any Engine or any Part or
any Operative Agreement or any proceeds thereunder to the extent that the
aggregate amount of such Taxes exceeds the aggregate amount of Taxes that
would have been imposed on the transferor (determined at the time of the
transfer) and that would have been indemnifiable pursuant to
Section 6.01(a) hereof, provided that the exclusion in this clause (vii)
shall not apply in the case of any such sale, assignment, transfer or
disposition that occurs in connection with an Event of Default or in
connection with a bankruptcy, insolvency or other proceeding for the relief
of debtors in which the Lessee is a debtor;
(viii) Any Taxes which have been properly included in the
Purchase Price;
(ix) Any Taxes imposed on the Owner Trustee or Owner Participant
which would not have been imposed but for a Lessor's Lien;
(x) In the case of the Owner Participant, any Taxes relating to,
resulting from, arising out of or in connection with a "prohibited
transaction" within the meaning of Section 406 of ERISA or
Section 4975(c)(1) of the Code resulting from the direct or indirect use of
assets of any ERISA Plan to acquire or hold Owner Participant's interest in
the Trust Estate or in the case of any transferee of the Owner Participant
referred to in Section 5.01(c), to purchase the Beneficial Interest
pursuant to Section 5.01(c);
(xi) Taxes that are being contested in accordance with the
provisions hereof;
(xii) United States withholding Taxes imposed on the Owner
Participant as a result of the Owner Participant not being a U.S. Person;
29
(xiii) interest, penalties, fines or additions to tax to the
extent they relate to Taxes for which no indemnity would be payable by
Lessee pursuant to this Section 6.01(b); or
(xiv) Taxes arising from or attributable to the like-kind
exchange transaction described in the last sentence of Section 2.01(a) to
the extent such Taxes exceed the amount of Taxes that would have been
imposed in the absence of such like-kind exchange transaction.
Section 6.02. AFTER TAX BASIS. The amount which the Lessee shall be
required to pay with respect to any Tax indemnified against under Section 6.01
(an "Indemnifiable Tax") shall be an amount sufficient to restore the Tax
Indemnitee, on an After Tax Basis, to the same position such party would have
been in had such Tax not been incurred, taking into account any tax benefits
recognized by such Tax Indemnitee as a result of the Indemnifiable Tax. If any
Tax Indemnitee actually realizes a tax benefit (whether by credit, deduction or
otherwise), or would have realized such a benefit as to which it has been given
notice if properly claimed, and with respect to Owner Participant, the Owner
Participant has not determined in good faith that claiming such benefit would
have a material adverse impact on the Owner Participant or an Affiliate thereof,
by reason of the payment of any Tax paid or indemnified against by the Lessee,
provided that an Event of Default has not occurred and is not continuing, such
Tax Indemnitee shall promptly pay to the Lessee, to the extent such tax benefit
was not previously taken into account in computing such payment or indemnity,
but not before the Lessee shall have made all payments then due to such Tax
Indemnitee under this Agreement, the Tax Indemnity Agreement and any other
Operative Agreement, an amount equal to the lesser of (x) the sum of such tax
benefit plus any other tax benefit realized by such Tax Indemnitee that would
not have been realized but for any payment made by such Tax Indemnitee pursuant
to this sentence and not already paid to the Lessee, or (y) the amount of the
payment made under Section 6.01 hereof and this Section 6.02 by the Lessee to
such Tax Indemnitee plus the amount of any other payments by the Lessee to such
Tax Indemnitee theretofore required to be made under this Section 6.02 and
Sections 6.01 and 6.05 hereof (and the excess, if any, of the tax benefit over
the applicable amount described in clause (x) over the amount described in
clause (y) above shall be carried forward and applied to reduce PRO TANTO any
subsequent obligations of the Lessee to make payments to such Tax Indemnitee
pursuant to Section 6.01 hereof). If an amount payable by any Tax Indemnitee to
the Lessee pursuant to this Section 6.02 is not paid when due because of the
occurrence and continuation of any Event of Default, such amount shall be
payable by any Tax Indemnitee to the Lessee upon the Lessee's curing all Events
of Default. The Lessee shall reimburse on an After Tax Basis such Tax Indemnitee
(subject to Section 6.01(b), but only insofar as subsections (iv), (vi), (vii),
(ix), (x), (xi), (xii) and (xiii) thereof would apply) for any payment of a tax
benefit pursuant to the preceding sentence (or a tax benefit otherwise taken
into account in calculating the Lessee's indemnity obligation hereunder) to the
extent that such tax benefit is subsequently disallowed or reduced.
In determining the order in which any Tax Indemnitee utilizes
withholding or other foreign taxes as a credit against such Tax Indemnitee's
United States income taxes, such Tax Indemnitee shall be deemed to utilize (i)
first, all foreign taxes other than those described in clause (ii) below; and
(ii) then, on a pro rata basis, all foreign taxes with respect to which such Tax
Indemnitee is entitled to obtain indemnification pursuant to an indemnification
provision
30
contained in any lease, loan agreement, or other financing document (including
this Agreement) that is similar to the indemnification provision in this Article
6.
Section 6.03. TIME OF PAYMENT. Any amount payable to a Tax Indemnitee
pursuant to this Article 6 shall be paid promptly, but in any event within 30
days after receipt of a written demand therefor from such Tax Indemnitee
accompanied by a written statement describing in reasonable detail the basis for
such indemnity and the computation of the amount so payable, PROVIDED that in
the case of amounts which are being contested by the Lessee in good faith or by
the Tax Indemnitee in either case pursuant to Section 6.04 hereof, or subject to
verification proceedings pursuant to Section 6.11 hereof, such amount shall be
payable within 30 days after the time such contest or verification proceeding,
as the case may be, is finally resolved. In no event shall any amount be payable
under Section 6.01 until two Business Day prior to the due date for Tax in
issue.
Section 6.04. CONTESTS.
(a) NOTICE OF CLAIM. If a written claim is made against any Tax
Indemnitee for Taxes with respect to which the Lessee is liable for a payment or
indemnity hereunder, such Tax Indemnitee shall promptly (but in any event within
30 days of receipt thereof) give the Lessee notice in writing of such claim and
shall furnish the Lessee with copies of any written requests for information
sent to such Tax Indemnitee from any taxing authority to the extent relating to
such Taxes with respect to which the Lessee may be required to indemnify
hereunder; PROVIDED, HOWEVER, that the failure of a Tax Indemnitee to give such
notice or furnish such copy shall not terminate any of the rights of such Tax
Indemnitee under this Article 6, except (A) to the extent that the Lessee's
contest rights have been materially and adversely impaired by the failure to
provide such notice or copy or (B) to the extent that such failure results in
the imposition of, or an increase in the amount of, any penalties, interest or
additions to Tax related to the Tax which is the subject of such claim or
proceeding.
(b) REQUEST FOR CONTEST. If a written claim shall be made against any
Tax Indemnitee for any Tax, other than an Income Tax, for which the Lessee may
be obligated to indemnify pursuant to Section 6.01 hereunder, and under
applicable law of the taxing jurisdiction the Lessee is allowed to contest
directly such Tax and the Tax to be contested is not reflected in a report or
return with other Taxes of any Tax Indemnitee (as confirmed in writing by such
Tax Indemnitee) and if the Tax Indemnitee determines in good faith that it will
not suffer any adverse consequences as a result and that no tax return of the
Tax Indemnitee will be kept open as a result of such contest beyond the
applicable statute of limitations period (as confirmed in writing by such Tax
Indemnitee), then the Lessee shall be permitted, at its expense and in its own
name, or, if consented to in writing by the Tax Indemnitee, in the name of such
Tax Indemnitee, to contest the imposition of such Tax (a " Lessee Controlled
Contest"); PROVIDED, HOWEVER, that the Lessee shall not be permitted or entitled
to contest any Tax unless (A) such contest will not result in the risk of an
imposition of criminal penalties or a more than de minimis risk of a sale,
forfeiture or loss of the Aircraft, the Airframe, the Engines or any part
thereof or the creation of any Lien other than Liens for Taxes of the Lessee (x)
either not yet due or being contested in good faith by appropriate proceedings
so long as such proceedings do not involve the risk of an imposition of criminal
penalties or a more than de minimis risk of any sale, forfeiture or loss of the
Aircraft (unless the Lessee has provided a bond or other sufficient protection
against any
31
such risk reasonably satisfactory to the Tax Indemnitee), and (y) for the
payment of which such reserves, if any, as required to be provided under
generally accepted accounting principles have been provided and, to the extent
permitted by law, the Lessee shall be entitled to withhold payment during
pendency of such contest, (B) if an Event of Default shall have occurred and be
continuing, the Lessee shall have provided security for its obligations
hereunder reasonably satisfactory to the Owner Participant by placing in escrow
funds to cover any such obligations, (C) the Lessee shall have agreed to pay
such Tax Indemnitee on demand and on an After Tax Basis all costs and expenses
that such Tax Indemnitee actually incurs in connection with contesting such
claim (including, without limitation, all costs, expenses, losses, reasonable
legal and accounting fees, disbursements, or penalties, interest and addition to
tax), (D) if such contest shall be conducted in a manner requiring the payment
of the claim in advance, the Lessee shall have advanced sufficient funds, on an
interest free basis, to make the payment required (or the Lessee shall have paid
the amount required directly to the appropriate taxing authority), and agreed to
indemnify the Tax Indemnitee against any additional net adverse tax consequences
on an After Tax Basis to such Tax Indemnitee of such advance, and (E) if
requested by the Owner Participant, independent tax counsel selected by Owner
Participant and reasonably acceptable to the Lessee has rendered an opinion
within 30 days of the Owner Participant providing notice of the claim to the
Lessee that a Reasonable Basis exists for contesting such claim.
If the Lessee shall so request within 30 days after receipt of such
notice from a Tax Indemnitee under this Section 6.04 hereof and with respect to
a Tax for which the Lessee may be obligated to indemnify pursuant to
Section 6.01 and which does not satisfy the requirements to constitute a Lessee
Controlled Contest, such Tax Indemnitee shall in good faith at the Lessee's
after-tax expense contest the imposition of such Tax; PROVIDED, HOWEVER, that
such Tax Indemnitee, after considering in good faith any advice of the Lessee
and the Lessee's counsel concerning the forum in which the adjustment is most
likely to be favorably resolved, may in its sole discretion select the manner
and forum for such contest and determine whether any such contest shall be made
by (a) resisting payment thereof if lawful and practicable or not paying the
same except under protest if protest is necessary and proper in each case so
long as non-payment will not result in a more than de minimis risk of the sale,
forfeiture or loss of, or the creation of a Lien other than a Permitted Lien on
the Aircraft, Airframe or any Engine or any risk of criminal liability; or (b)
if the payment be made, using reasonable efforts to obtain a refund thereof in
appropriate administrative and/or judicial proceedings; PROVIDED FURTHER,
HOWEVER, that at such Tax Indemnitee's option, such contest shall be conducted
by the Lessee in the name of such Tax Indemnitee if such Tax Indemnitee so
requests in writing and that in no event shall such Tax Indemnitee be required
or the Lessee permitted to contest under this paragraph the imposition of any
Tax for which the Lessee may be obligated pursuant to this Section 6.01 unless:
(i) in the case of an Income Tax, the Lessee shall have furnished
at the Lessee's expense an opinion of counsel selected by the Lessee and
reasonably satisfactory to such Tax Indemnitee to the effect that a
Reasonable Basis exists for pursuing such contest;
(ii) the Lessee shall have agreed to pay such Tax Indemnitee on
demand and on an After Tax Basis all reasonable costs and expenses that
such Tax Indemnitee may incur in connection with contesting such claim
(including, without
32
limitation, all costs expenses, losses, reasonable legal and accounting
fees, disbursements, penalties, interest and additions to tax);
(iii) such Tax Indemnitee shall have determined that the action
to be taken will not result in any more than de minimis danger of sale,
forfeiture or loss of, or the creation of any Lien other the Liens for
Taxes of the Lessee (or any Sublessee) either not yet due or being
contested in good faith by appropriate proceedings so long as such
proceedings do not involve any more than de minimis risk of the sale,
forfeiture or loss of the Aircraft, the Airframe or any Engine or any
interest therein (unless the Lessee has provided a bond or other sufficient
protection against any such risk reasonably satisfactory to the Tax
Indemnitee) and for the payment of which such reserves, if any, as are
required to be provided under generally accepted accounting principles have
been provided;
(iv) if an Event of Default shall have occurred and be
continuing, the Lessee shall have provided security for its obligations
hereunder reasonably satisfactory to the Owner Participant by placing in
escrow sufficient funds to cover any such obligations;
(v) Lessee shall have acknowledged its liability for such claims;
(vi) such contest and related contests involving other equipment
involve potential payments and/or indemnities by the Lessee (whether or not
such indemnity is pursuant to this Agreement) of at least $25,000 in the
aggregate; and
(vii) if such contest shall be conducted in a manner requiring
the payment of the claim in advance, the Lessee shall have advanced
sufficient funds, on an interest free basis, to make the payment required,
and agreed to indemnify the Tax Indemnitee against any additional net
adverse tax consequences on an After Tax Basis to such Tax Indemnitee of
such advance.
In the case of a contest which is not a Lessee Controlled Contest, if
requested by the Lessee, the Tax Indemnitee shall appeal any adverse
administrative or judicial decision, except that the Tax Indemnitee shall not be
required to appeal any adverse decision to the United States Supreme Court
provided that with respect to an appeal of an adverse judicial decision a
substantial basis in law and fact must exist that such appeal will be
successful. If the Lessee is permitted under applicable law to contest a Tax
asserted against the Lessee and the same or similar Tax is also asserted against
the Tax Indemnitee, subject to the conditions herein, each of the Lessee and
such Tax Indemnitee shall conduct its contest in its own name and the Lessee and
such Tax Indemnitee will cooperate in a reasonable manner with respect to the
respective contests of such Tax.
(c) DECLINING TO CONTEST; SETTLEMENT.
(i) If, after the Lessee has properly requested a contest in
accordance with this Section 6.04 and Lessee is then complying with the
terms of this Section 6.04, any Tax Indemnitee shall at any time decline to
take any action required under Section 6.04 with respect to such contest,
then, if such failure shall cause the contest to be
33
determined adversely or shall preclude such contest as a matter of law, the
Lessee shall not be obligated to indemnify such Tax Indemnitee for such Tax
and such Tax Indemnitee shall reimburse the Lessee for all amounts
previously advanced by the Lessee in connection with such contest (other
than costs and expenses of such contest).
(ii) No Tax Indemnitee shall settle a contest of any indemnified
Tax without requesting the Lessee's written consent (which consent will not
be unreasonably withheld, as determined in the Lessee's good faith
judgment). If any Tax Indemnitee shall settle a contest for any Tax without
receiving the Lessee's written consent, then the Lessee shall not be
obligated to indemnify such Tax Indemnitee for such Tax and the Tax
Indemnitee shall reimburse the Lessee for all amounts previously advanced
with respect to such contest (other than costs and expenses of such
contest). Notwithstanding the preceding two sentences, no Tax Indemnitee
shall be required to take or continue any action unless the Lessee shall
have agreed to pay the Tax Indemnitee on a current and After Tax Basis all
reasonable fees and expenses (including reasonable attorney's and
accountant's fees) which such Tax Indemnitee may incur as a result of
contesting such Taxes.
(d) CONTINUING CLAIMS. Notwithstanding anything contained in this
Section 6.04 to the contrary, no Tax Indemnitee shall be required to contest any
claim if the subject matter thereof shall be of a continuing nature and shall
have previously been adversely decided pursuant to the contest provisions of
this Section 6.04 unless there shall have been a change in the law (including,
without limitation, amendments to statutes or regulations, administrative
rulings and court decisions) or the Lessee shall have provided new facts after
such claim shall have been so previously decided, and such Tax Indemnitee shall
have received an opinion of independent tax counsel selected by it and
reasonably approved by the Lessee and furnished at the Lessee's sole expense to
the effect that, as a result of such change or new facts, it is more likely than
not that the position which such Tax Indemnitee or the Lessee, as the case may
be, had asserted in such previous contest, would prevail.
(e) CLAIMS BARRED. If (A) any Tax Indemnitee fails to give the Lessee
written notice pursuant to this Section 6.04 of any claim by any government or
taxing authority for any Tax for which the Lessee is obligated pursuant to this
Section 6.01, (B) as a direct result of such failure the contest of such claim
has been materially and adversely impaired and (C) the Lessee furnishes, at the
Lessee's expense, an opinion of counsel selected by the Lessee and reasonably
satisfactory to such Tax Indemnitee to the effect that, had the contest of such
claim not been materially and adversely impaired, a Reasonable Basis would have
existed for pursuing such contest, such Tax Indemnitee shall be deemed to have
waived its right to any payment by the Lessee that would otherwise be payable by
the Lessee pursuant to this Section 6.01 in respect of such claim.
Section 6.05. REFUNDS. When a Tax Indemnitee becomes entitled to
receive a refund or credit against Tax of all or any part of any Taxes which the
Lessee shall have paid for such Tax Indemnitee or for which the Lessee shall
have reimbursed or indemnified such Tax Indemnitee, such Tax Indemnitee shall
pay, provided an Event of Default has not occurred and is not continuing, to the
Lessee an amount equal to the amount of such refund or credit, together with any
interest attributable thereto, less (x) all payments then due to such Tax
Indemnitee
34
under this Article 6, and (y) Taxes imposed with respect to the accrual or
receipt thereof, including interest received attributable thereto, plus any tax
benefit realized by such Tax Indemnitee as a result of any payment by such Tax
Indemnitee made pursuant to this sentence; PROVIDED, HOWEVER, that such amount
shall not be payable (a) before such time as the Lessee shall have made all
payments or indemnities then due and payable to such Tax Indemnitee under this
Article 6 and (b) to the extent that the amount of such payment (without regard
to any interest component thereof) would exceed (i) the amount of all prior
payments by the Lessee to such Tax Indemnitee pursuant to this Article 6 less
(ii) the amount of all prior payments by such Tax Indemnitee to the Lessee
pursuant to this Article 6 (any such excess shall be carried forward to reduce
PRO TANTO any subsequent obligations of the Lessee to make payments to such Tax
Indemnitee pursuant to Section 6.01 hereof). If an amount payable by any Tax
Indemnitee to the Lessee pursuant to this Section 6.02 is not paid when due
because of the occurrence and continuation of an Event of Default, such amount
shall be payable by any Tax Indemnitee to the Lessee upon the Lessee's curing
all Events of Default.
Any subsequent loss of such refund or tax benefit shall be treated as
a Tax subject to indemnification under the provisions of this Article 6 (in the
case of any such tax benefit, subject to Section 6.01(b) but only insofar as
subsections (iv), (vi), (vii), (ix),(x), (xi), (xii) and (xiii) thereof would
apply).
Section 6.06. REPORTS. In case any report or return is required to be
made with respect to any Taxes (other than Income Taxes) against which the
Lessee is or may be obligated to indemnify the Indemnitees under this Article 6,
the Lessee shall, to the extent it has knowledge thereof, make such report or
return, except for any such report or return that the Tax Indemnitee has
notified the Lessee that it intends to file, in such manner as will show the
ownership of the Aircraft in the Owner Trustee (unless the ownership of the
Aircraft is not shown on such report or return) and, upon request, shall send a
copy of the applicable portions of such report or return to the Tax Indemnitee
and the Owner Trustee or will notify the Tax Indemnitee of such requirement and
make such report or return in such manner as shall be satisfactory to such Tax
Indemnitee and the Owner Trustee. The Lessee will provide such information
within the possession or control of the Lessee as the Tax Indemnitee may
reasonably request in writing from the Lessee to enable the Tax Indemnitee to
fulfill its tax filing requirements with respect to the transactions
contemplated by the Operative Agreements (without duplication of any comparable
requirements of the Tax Indemnity Agreement) and any audit information request
arising from any such filing. The Tax Indemnitee will provide such information
within its possession or control as the Lessee may reasonably require from such
Tax Indemnitee to enable the Lessee to fulfill its tax filing requirements with
respect to the transactions contemplated by the Operative Agreements and any
audit information request arising from such filing; PROVIDED that in no event
shall any Tax Indemnitee be required to provide copies of any of its tax
returns.
Section 6.07. SURVIVAL OF OBLIGATIONS. The representations,
warranties, indemnities and agreements of the Lessee provided for in this
Article 6 and the Lessee's obligations under any and all of them, in each case,
with respect to events or periods prior to the expiration or termination of the
Lease shall survive the expiration or other termination of the Operative
Agreements.
35
Section 6.08. PAYMENT OF TAXES. With respect to any Tax otherwise
indemnifiable hereunder by the Lessee and applicable to the Aircraft, Airframe,
any Engine or Parts, to the extent permitted by the applicable federal, state,
local or foreign law, the Lessee shall pay such tax directly to the relevant
Taxing authority and file any returns or reports required with respect thereto
to the extent legally entitled to do so in its own name; PROVIDED, HOWEVER, that
the Lessee shall not make any statements or take any action which would indicate
that the Lessee or any Person other than the Owner Trustee or Owner Participant
is the owner of the Aircraft, the Airframe, any Engine or any Part or which
would otherwise be inconsistent with the terms of the Lease or the Tax Indemnity
Agreement and the position thereunder of the Owner Trustee and the Owner
Participant.
Section 6.09. REIMBURSEMENTS BY INDEMNITEES GENERALLY. To the extent
the Lessee is required to pay or withhold any Tax imposed on or with respect to
a Tax Indemnitee in respect of the transactions contemplated by the Operative
Agreements, which Tax is not otherwise the responsibility of the Lessee under
the Operative Agreements, or any other written agreements between the Lessee and
such Tax Indemnitee, then such Tax Indemnitee shall pay to the Lessee within 30
days of the Lessee's demand therefor an amount which equals the amount actually
paid by the Lessee with respect to such Taxes.
Section 6.10. FORMS. Each Tax Indemnitee agrees to furnish from time
to time to Lessee or to such other person as Lessee may designate, at Lessee's
request, such duly executed and properly completed forms as may be necessary or
appropriate in order to claim any reduction of or exemption from any withholding
or other Tax imposed by any taxing authority, if (x) such reduction or exemption
is available to such Tax Indemnitee, (y) Lessee has provided such Tax Indemnitee
with any information necessary to complete such form not otherwise reasonably
available to such Tax Indemnitee, and (z) with respect to Owner Participant, the
Owner Participant has determined in good faith that furnishing such form could
not have a material adverse impact on the Owner Participant or an Affiliate
thereof.
Section 6.11. VERIFICATION. At the Lessee's request, the accuracy of
any calculation of amount(s) payable pursuant to this Article 6 shall be
verified by independent public accountants selected by the applicable Tax
Indemnitee and reasonably satisfactory to the Lessee, and such verification
shall bind the applicable Tax Indemnitee and the Lessee. In order, and to the
extent necessary, to enable such independent accountants to verify such amounts,
such Tax Indemnitee shall provide to such independent accountants (for their
confidential use and not to be disclosed to the Lessee or any other person) all
information reasonably necessary for such verification. Verification shall be at
the expense of the Lessee, unless such verification results in an adjustment in
the Lessee's favor of $10,000 or more of the amount of the payment as computed
by such Tax Indemnitee, in which case the verification shall be at the expense
of the Tax Indemnitee.
Section 6.12. NON-PARTIES. If a Tax Indemnitee is not a party to this
Agreement, Lessee may require the Tax Indemnitee to agree in writing, in a form
reasonably acceptable to Lessee, to the terms of this Article 6 prior to making
any payment to such Tax Indemnitee hereunder.
36
ARTICLE 7.
GENERAL INDEMNITY
Section 7.01. GENERALLY.
(a) INDEMNITY. The Lessee agrees to indemnify each Indemnitee against
and agrees to protect, defend, save and keep harmless each Indemnitee from and
against and in respect of, and will pay on an After Tax Basis, any and all
liabilities, obligations, losses, damages, settlements, penalties, claims,
actions, suits, costs, disbursements and expenses, demands or judgments
(including reasonable legal fees and expenses) of every kind and nature, whether
or not any of the transactions contemplated by this Agreement are consummated
and whether arising before, on or after the Delivery Date (individually, an
"Expense," collectively, "Expenses"), which may be imposed on, incurred or
suffered by or asserted against any Indemnitee, in any way relating to, arising
out of or in connection with, any one or more of the following:
(i) any Operative Agreement, Sublease or any transaction
contemplated thereby;
(ii) the operation, possession, use, non-use, maintenance,
storage, overhaul, delivery, non-delivery, control, condition, alteration,
modification, addition, improvement, airworthiness, replacement,
substitution, return, abandonment, redelivery or other disposition, repair
or testing of the Aircraft, Airframe, or any Engine or any engine used in
connection with the Airframe, or any Part thereof by the Lessee, any
sublessee or any other Person whatsoever, whether or not such operation,
possession, use, non-use, maintenance, storage, overhaul, delivery,
non-delivery, control, condition, alteration, modification, addition,
improvement, airworthiness, replacement, substitution, return, abandonment,
redelivery or other disposition, repair or testing is in compliance with
the terms of the Lease, including, without limitation, claims for death,
personal injury or property damage or other loss or harm to any Person
whatsoever, including, without limitation, any passengers, shippers or
other Persons wherever located, claims or penalty relating to any laws,
rules or regulations, including, without limitation, environmental control,
noise and pollution laws, rules or regulation and any Liens in respect of
the Aircraft, any Engine or any Part;
(iii) the manufacture, design, sale, return, purchase,
acceptance, nonacceptance, rejection, delivery, non-delivery, condition,
repair, modification, servicing, rebuilding, airworthiness, registration,
reregistration, deregistration, ownership, financing, import, export,
performance, non-performance, lease, sublease, transfer, merchantability,
fitness for use, alteration, substitution or replacement of any Airframe,
Engine, or Part or other transfer of use or possession, or other
disposition of the Aircraft, the Airframe, any Engine or any Part
including, without limitation, latent and other defects, whether or not
discoverable, tort liability, whether or not arising out of the negligence
of any Indemnitee (whether active, passive or imputed and including strict
liability without fault), and any claims for patent, trademark or copyright
infringement;
37
(iv) any breach of or failure to perform or observe, or any other
non-compliance with, any condition, covenant or agreement to be performed,
or other obligations of the Lessee under any of the Operative Agreements,
or the falsity or inaccuracy of any representation or warranty of the
Lessee in any of the Operative Agreements (other than representations and
warranties in the Tax Indemnity Agreement) or the occurrence of any Default
or Event of Default;
(v) the enforcement of the terms of the Operative Agreements
(including this Section 7.01(a));
(vi) any interest in the Lessor's Estate or the Trust Agreement
or any similar interest; and
(vii) in the case of the Owner Participant, any "prohibited
transaction," within the meaning of Section 406 of ERISA or
Section 4975(c)(1) of the Code, arising out of or in connection with the
acquisition or holding of the Owner Participant's interest in the Trust
Estate.
(b) EXCEPTIONS. The indemnity provided for in Section 7.01(a) shall
not extend to any Expense of any Indemnitee to the extent it:
(i) is attributable to the willful misconduct or gross negligence
of such Indemnitee (other than gross negligence or willful misconduct
imputed to such person by reason of its interest in the Aircraft or any
transaction documents);
(ii) except to the extent fairly attributable to acts or events
occurring prior thereto, is attributable to acts or events (other than the
performance by Lessee of its obligations pursuant to the terms of the
Operative Agreements) which occur after the Aircraft is no longer part of
the Lessor's Estate or, if the Aircraft remains a part of the Lessor's
Estate, after the expiration of the Term (unless the Aircraft is being
returned at such time, in which case after return of physical possession;
PROVIDED that if the Lease has been terminated pursuant to Section 17
thereof, the indemnity provided in Section 7.01(a) hereof shall survive for
so long as Lessor shall be exercising remedies under such Section 17), or
to acts or events which occur after return of possession of the Aircraft by
the Lessee in accordance with the provisions of the Lease (subject to the
foregoing proviso if the Lessor has terminated the Lease pursuant to
Section 17 of the Lease); PROVIDED that nothing in this clause (ii) shall
be deemed to exclude or limit any claim that any Indemnitee may have under
Applicable Law by reason of an Event of Default or for damages from Lessee
for breach of Lessee's covenants contained in the Lessee Documents or to
release Lessee from any of its obligations under the Lessee Documents that
expressly provide for performance after termination of the Term;
(iii) other than as expressly provided herein or in the other
Operative Agreements, is a Tax or loss of a Tax benefit, whether or not the
Lessee is required to indemnify therefor pursuant to Article 6 hereof or
pursuant to the Tax Indemnity Agreement;
38
(iv) is a cost or expense expressly required to be paid by such
Indemnitee or its permitted transferees (and not by the Lessee) pursuant to
this Agreement or any other Operative Agreement and for which the Lessee is
not otherwise obligated to reimburse such Indemnitee, directly or
indirectly pursuant to the terms of this Agreement or such other Operative
Agreement;
(v) is attributable to the incorrectness or breach by such
Indemnitee of its representations or warranties, under any of the Operative
Agreements except to the extent such incorrectness or breach was caused by
a breach by Lessee of any representation or warranty or by any failure of
Lessee to perform any obligation under an Operative Agreement;
(vi) is attributable to the failure by such Indemnitee to perform
any of its obligations under any of the Operative Agreements except to the
extent such failure was caused by a breach by Lessee of any representation
or warranty or by any failure of Lessee to perform any obligation under an
Operative Agreement;
(vii) is, in the case of the Owner Participant, Lessor's Liens
attributable to the Owner Participant; in the case of the Owner Trustee,
Lessor's Liens to the extent attributable to the Owner Trustee; in the case
of Trust Company, Lessor's Liens to the extent attributable to Trust
Company;
(viii) is, in the case of the Owner Participant or the Owner
Trustee, attributable to the offer or sale by such Indemnitee of any
interest in the Aircraft, the Lessor's Estate or the Trust Agreement or any
similar interest (including an offer or sale resulting from bankruptcy or
other proceedings for the relief of debtors in which such Indemnitee is the
debtor), unless in each case such offer or sale shall occur pursuant to the
exercise of remedies under Section 17 of the Lease;
(ix) in the case of the Owner Participant, is an Expense relating
to, resulting from, arising out of or in connection with a "prohibited
transaction" within the meaning of Section 406 of ERISA or
Section 4975(c)(1) of the Code resulting from the direct or indirect use of
assets of any ERISA Plan to acquire or hold Owner Participant's interest in
the Trust Estate or in the case of any transferee of the Owner Participant
referred to in Section 5.01(c), to purchase the Beneficial Interest
pursuant to Section 5.01(c);
(x) except during the continuation of an Event of Default, is
attributable to any amendment to any of the Operative Agreements which is
not requested, or consented to, by the Lessee or is not required or made
pursuant to the terms of any of the Operative Agreements;
(xi) is attributable to the exercise by any Indemnitee of any
right to inspect the Aircraft except with respect to any such inspection
conducted while an Event of Default is continuing;
(xii) constitutes the loss of future profits of such Indemnitee
or losses attributable to such Indemnitee's overhead; and
39
(xiii) arises from or is attributable to the like-kind exchange
transaction described in the last sentence of Section 2.01(a) to the extent
such Expenses exceed the amount of Expenses that would have been imposed in
the absence of such like-kind exchange transaction.
Section 7.02. NOTICE AND PAYMENT. Each Indemnitee shall give prompt
written notice to the Lessee of any liability as to which an officer of such
Indemnitee has actual knowledge, for which the Lessee is, or may be, liable
under this Article 7; PROVIDED, HOWEVER, that failure to give such notice shall
not terminate any of the rights of an Indemnitee under this Article 7 and shall
not release Lessee from any of its obligations to indemnify such Indemnitee
hereunder, except to the extent that such failure adversely affects any
applicable defense or counterclaim, otherwise increases the amount the Lessee
would have been liable for in the absence of such failure to provide such notice
or adversely affects the ability of Lessee's insurers to defend such claim.
Section 7.03. DEFENSE OF CLAIMS. The Lessee or its insurers shall have
the right (in each such case at the Lessee's sole expense) to investigate,
defend (and control the defense of) any such claim for which indemnification is
sought pursuant to this Article 7 (so long as Lessee has agreed in writing
reasonably acceptable to the relevant Indemnitee that Lessee is liable to such
Indemnitee for any Expenses relating to or arising out of the claim for which
indemnification is sought, provided that Lessee will not be so liable to the
extent that it is reasonably determined that one or more of the exclusions
contained in Section 7.01(b) would be applicable to such claim) and each
Indemnitee shall cooperate with the Lessee or its insurers with respect thereto,
PROVIDED THAT, without limiting the right of the Lessee's insurers to assume and
control the defense of or to compromise, any such claim, the Lessee shall not be
entitled to assume and control the defense of or compromise any such claim (A)
during the continuance of any Event of Default arising under Sections 16(a),
(b), (f), (g) or (h) of the Lease, (B) if an actual or potential material
conflict of interest exists making it advisable in the good faith opinion of
such Indemnitee (on the basis of prevailing standards of professional
responsibility) for such Indemnitee to be represented by separate counsel or if
such proceeding involves the potential imposition of criminal liability on such
Indemnitee or (C) if such proceeding will involve any non-de minimis risk of the
sale, forfeiture or loss of, or the creation of any Lien (other than Permitted
Liens) on the Aircraft or the Trust Estate (unless the Lessee posts a bond or
other security reasonably acceptable in form and substance to such Indemnitee)
or involve any risk of criminal liability to such Indemnitee. Subject to the
immediately foregoing sentence, where the Lessee or the insurers under a policy
of insurance maintained by the Lessee undertake the defense of an Indemnitee
with respect to such a claim, no additional legal fees or expenses of such
Indemnitee in connection with the defense of such claim shall be indemnified
hereunder unless the fees or expenses were incurred at the written request of
the Lessee or such insurers. Subject to the requirement of any policy of
insurance applicable to a claim, an Indemnitee may participate at its own
expense at any judicial proceeding controlled by the Lessee or its insurers
pursuant to the preceding provisions, to the extent that such party's
participation does not, in the reasonable opinion of the independent counsel
appointed by the Lessee or its insurers to conduct such proceedings, interfere
with the defense of such claim (it being agreed that the making of copies,
giving notice of proceedings and the like shall not be considered interference);
and such participation shall not constitute a waiver of the indemnification
provided in this Section 7.03. No Indemnitee shall enter into any settlement or
other compromise with respect to any claim
40
described in this Section 7.03 (other than any claim involving potential
criminal liability) without the prior written consent of the Lessee, unless such
Indemnitee waives its right to be indemnified under this Article 7 with respect
to such claim or unless an Event of Default under Section 16(a), 16(f), 16(g) or
16(h) of the Lease is continuing. The Lessee shall not enter into any settlement
or compromise with respect to which the Lessee has not agreed to indemnify such
Indemnitee to such Indemnitee's satisfaction or which admits any criminal
violation, gross negligence or willful misconduct on the part of any Indemnitee
without the prior written consent of such Indemnitee.
Section 7.04. INSURED CLAIMS. Notwithstanding any other provision of
this Article 7 to the contrary, in the case of any claim indemnified by the
Lessee hereunder which is covered by a policy of insurance maintained by the
Lessee pursuant to Section 9 of the Lease or otherwise, it shall be a condition
of such indemnity with respect to any particular Indemnitee that such Indemnitee
shall cooperate with the insurers in the exercise of their rights to
investigate, defend or compromise such claim as may be required to retain the
benefits of such insurance with respect to such claim.
Section 7.05. SUBROGATION. To the extent that an Expense indemnified
by the Lessee under this Article 7 is in fact paid in full by the Lessee and/or
an insurer under a policy of insurance maintained by the Lessee, the Lessee
and/or such insurer as the case may be shall be subrogated to the extent of such
payment to the rights and remedies of the Indemnitee on whose behalf such
Expense was paid with respect to the transaction or event giving rise to such
Expense (other than the rights and remedies in respect of insurance policies
maintained by such Indemnitee and other than the rights of the Trust Company or
the Owner Trustee and remedies against the Owner Participant under the Trust
Agreement). Should an Indemnitee receive any refund, in whole or in part, with
respect to any Expense paid in full by the Lessee hereunder, it shall promptly
pay over the amount refunded (but not an amount in excess of the amount Lessee
and/or such insurer has paid to such Indemnitee in respect of such Expense) to
the Lessee unless a Specified Default or an Event of Default shall have occurred
and be continuing (or would have occurred and be continuing if the Owner
Participant had given the notice specified in Section 16(a) of the Lease), in
which case, provided that Lessee shall have paid such Indemnitee all amounts
required under this Article 7 or under any other Operative Agreement, such
amounts shall be paid over to Owner Trustee to hold as security for Lessee's
obligations under the Lessee Documents or, if requested by Lessee, applied to
satisfy such obligations.
Section 7.06. INFORMATION. Subject to Section 7.04, Lessee will
provide the relevant Indemnitee with such information, not within the control of
such Indemnitee, as is in Lessee's control or is reasonably available to Lessee,
which such Indemnitee may reasonably request, and will otherwise cooperate with
such Indemnitee, so as to enable such Indemnitee to fulfill its obligations
under Section 7.03 and to control or participate in any proceeding to the extent
permitted by Section 7.03. The Indemnitee shall supply Lessee with such
information, not within the control of Lessee, as is in such Indemnitee's
control or is reasonably available to such Indemnitee, which Lessee may
reasonably request to control or participate in any proceeding to the extent
permitted by Section 7.03.
41
Section 7.07. SURVIVAL OF OBLIGATIONS. The indemnities and agreements
of the Lessee provided for in this Article 7 shall survive the expiration or
other termination of this Agreement.
Section 7.08. EFFECT OF OTHER INDEMNITIES. The Lessee's obligations
under this Article 7 shall be those of a primary obligor whether or not the
Person indemnified shall also be indemnified with respect to the same matter
under the terms of this Agreement, or any other document or instrument, and the
Person seeking indemnification from the Lessee pursuant to any provision of this
Agreement may proceed directly against the Lessee without first seeking to
enforce any other right of indemnification.
Section 7.09. WAIVER OF CERTAIN CLAIMS. The Lessee hereby waives and
releases any Expense now or hereafter existing against any Indemnitee arising
out of death or personal injury to personnel of the Lessee, loss or damage to
property of the Lessee, or the loss of use of any property of the Lessee, which
results from or arises out of the condition, use or operation of the Aircraft
during the Term, including, without limitation, any latent or patent defect
whether or not discoverable.
Section 7.10. CERTAIN LIMITATIONS. The Lessee does not guarantee and
nothing in the general indemnification provisions of this Article 7 shall be
construed as a guarantee (or an indemnification) by the Lessee with respect to
the residual value of the Aircraft or any part thereof.
ARTICLE 8.
TRANSACTION COSTS
Section 8.01. TRANSACTION COSTS AND OTHER COSTS.
(a) TRANSACTION COSTS. If the transactions contemplated by this
Agreement to occur on the Delivery Date are consummated, the Owner Participant
shall pay (or reimburse the Lessee if the Lessee shall have previously made such
payment) all fees and expenses of the following persons relating to the
transactions contemplated hereby up to an aggregate maximum amount equal to the
Assumed Transaction Costs (as defined in Exhibit B to the Lease), following
receipt by the Owner Participant of appropriate invoices with respect thereto:
(i) the reasonable fees and expenses of counsel for Owner Participant; (ii) the
reasonable fees and expenses of the respective counsel for the Lessee, the Owner
Trustee, the Manufacturer, the Engine Manufacturer, Solitair and the Seller;
(iii) the reasonable fees and expenses of special aviation counsel; (iv) the
initial fees and expenses of the Owner Trustee; (v) the fees and expenses of
Seabury Securities, LLC (the "Lessee Advisor"); (vi) any amounts paid in
connection with any appraisal report prepared for the Owner Participant; and
(vii) any other amounts approved by the Lessee and the Owner Participant. To the
extent Transaction Costs exceed the Assumed Transaction Costs, (A) the Lessee
shall pay (or reimburse the applicable party for) the amount of such excess and
the Owner Participant shall have no obligation to pay (or reimburse the Lessee
for) the amount of such excess and (B) the Owner Participant shall have the
right to instruct the Lessee as to which of the Transaction Costs not exceeding
the amount of such excess shall be paid (or reimbursed, as applicable) by the
Lessee, in which case the Lessee shall pay (or
42
reimburse the applicable party for) such Transaction Costs in accordance with
such instructions of the Owner Participant.
(b) CONTINUING EXPENSES. The Lessee agrees to pay, as Supplemental
Rent, the continuing fees, expenses and disbursements (including reasonable
counsel fees and expenses) of Trust Company and the Owner Trustee, with respect
to the administration of the Lease and the Lessor's Estate.
(c) AMENDMENTS AND SUPPLEMENTS. Without limitation of the foregoing,
the Lessee agrees to pay, as Supplemental Rent, to the Owner Trustee and the
Owner Participant all costs and expenses (including reasonable legal fees and
expenses) incurred by any of them in connection with any amendment, supplement,
waiver or consent (whether or not entered into) under this Agreement or any
other Operative Agreement or document or instrument delivered pursuant to any of
them, which amendment, supplement, waiver or consent is required by any
provision of any Operative Agreement (including any adjustment pursuant to
Section 3(d) of the Lease) or is requested by the Lessee or necessitated by the
action or inaction of the Lessee; PROVIDED, HOWEVER, that the Lessee shall not
be responsible for fees or expenses incurred in connection with the offer, sale
or other transfer (whether pursuant to Section 5.01(c) hereof or otherwise) by
the Owner Participant or the Owner Trustee of any interest in the Aircraft, the
Lessor's Estate, the Beneficial Interest or the Trust Agreement or any similar
interest (and the offeror, seller, or transferor shall be responsible for all
such fees and expenses), unless such offer, sale or transfer shall occur (A)
pursuant to the exercise of remedies under Section 17 of the Lease, or (B) in
connection with the termination of the Lease or action or direction of the
Lessee pursuant to Section 8, 13 or 14 of the Lease.
ARTICLE 9.
SUCCESSOR OWNER TRUSTEE
Section 9.01. APPOINTMENT OF SUCCESSOR OWNER TRUSTEE.
(a) RESIGNATION AND REMOVAL. The Owner Trustee or any successor Owner
Trustee may resign or may be removed (with the consent of the Lessee) by the
Owner Participant, and a successor Owner Trustee may be appointed and a Person
may become Owner Trustee under the Trust Agreement only in accordance with the
provisions of Section 8.01 of the Trust Agreement and the provisions of
paragraphs (b) and (c) of this Section 9.01.
(b) CONDITIONS TO APPOINTMENT. The appointment in any manner of a
successor Owner Trustee pursuant to Section 8.01 of the Trust Agreement shall be
subject to the following conditions:
(i) such successor Owner Trustee shall be a Citizen of the United
States;
(ii) such successor Owner Trustee shall be a bank or a trust
company having combined capital, surplus and undivided profits of at least
$100,000,000 or a bank or trust company fully guaranteed by a direct or
indirect parent thereof having a combined capital, surplus and undivided
profits of at least $100,000,000;
43
(iii) such appointment shall not violate any provisions of the
Transportation Code or any applicable rule or regulation of the applicable
regulatory agency or body of any other jurisdiction in which the Aircraft
may then be registered or create a relationship which would be in violation
of the Transportation Code or any applicable rule or regulation of the
applicable regulatory agency or body of any other jurisdiction in which the
Aircraft may then be registered;
(iv) such successor Owner Trustee shall enter into an agreement
or agreements, in form and substance reasonably satisfactory to the Lessee
and the Owner Participant whereby such successor Owner Trustee confirms
that it shall be deemed a party to this Agreement and each other Operative
Agreement to which the Owner Trustee is a party and agrees to be bound by
all the terms of such documents applicable to the Owner Trustee and makes
the representations and warranties contained in Section 5.03 hereof (except
that it may be duly incorporated, validly existing and in good standing
under the laws of the United States of America or any State thereof); and
(v) all filings of Uniform Commercial Code financing and
continuation statements, filings in accordance with the Transportation Code
and amendments thereto shall be made and all further actions taken in
connection with such appointment as may be necessary in connection with
maintaining the valid and continued registration of the Aircraft in
accordance with the Transportation Code.
ARTICLE 10.
LIABILITIES OF THE OWNER PARTICIPANT
Section 10.01. LIABILITIES OF THE OWNER PARTICIPANT. The Owner
Participant shall not have any obligation or duty to the Lessee with respect to
the transactions contemplated by this Agreement, except those obligations or
duties expressly set forth in this Agreement or (to the Lessee only) the Tax
Indemnity Agreement or in any other Operative Agreement to which the Owner
Participant is a party and the Owner Participant shall not be liable for the
performance by any other party hereto of such other party's obligations or
duties hereunder.
ARTICLE 11.
OTHER DOCUMENTS
Section 11.01. CONSENT OF LESSEE TO OTHER DOCUMENTS. The Lessee hereby
consents in all respects to the execution and delivery of the Trust Agreement.
Section 11.02. CONSENT OF OWNER PARTICIPANT TO OTHER DOCUMENTS. The
Owner Participant hereby consents in all respects to the execution and delivery
of the Lease and hereby agrees to follow the terms of the Lease which are
applicable to it.
44
ARTICLE 12.
NOTICES
Section 12.01. NOTICES. Except as otherwise specifically provided
herein, all notices, requests, approvals or consents required or permitted by
the terms hereof shall be in writing (it being understood that the specification
of a writing in certain instances and not in others does not imply an intention
that a writing is not required as to the latter). Any notice shall be effective
when received. Any notice shall either be sent by overnight courier service or
overnight delivery service or by hand, or sent in the form of a telecopy,
PROVIDED that there is receipt of such notice the next Business Day from an
overnight courier service, or by overnight delivery service or delivered by
hand. Any notice shall be directed to the Lessee, the Lessor, the Owner
Participant or any other party hereto to the respective addresses set forth
below or to such other address or telecopy number as any such party may
designate pursuant to this Section 12.01:
(a) if to the Lessee, to its office at ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: President; telephone (▇▇▇) ▇▇▇-▇▇▇▇,
facsimile (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to c/o Wexford Capital, LLC, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇
▇▇▇▇▇, telephone (▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇ ▇▇▇▇▇▇▇▇) and (▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇▇▇▇
▇▇▇▇▇), facsimile (▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇ ▇▇▇▇▇▇▇▇) and (▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇▇▇▇
▇▇▇▇▇); or to such other address as the Lessee shall from time to time designate
in writing to the Lessor and any Owner Participant;
(b) if to the Lessor or the Owner Trustee, to its office at ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Department,
telephone (▇▇▇) ▇▇▇-▇▇▇▇, facsimile (▇▇▇) ▇▇▇-▇▇▇▇; or to such other address as
the Lessor shall from time to time designate in writing to the Lessee, with a
copy to the Owner Participant;
(c) if to the Owner Participant to its office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Contracts Manager, telephone (203)
▇▇▇-▇▇▇▇ facsimile (▇▇▇) ▇▇▇-▇▇▇▇; or to such other address as the Owner
Participant shall from time to time designate in writing to the Lessee and the
Owner Trustee;
ARTICLE 13.
MISCELLANEOUS
Section 13.01. COUNTERPARTS. This Agreement may be executed by the
parties in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.
Section 13.02. NO ORAL MODIFICATIONS. Neither this Agreement nor any
of its terms may be terminated, amended, supplemented, waived or modified
orally, but only by an instrument in writing signed by the party against which
the enforcement of the termination, amendment, supplement, waiver or
modification is sought. No such written termination, amendment, supplement,
waiver or modification shall be effective unless a signed copy shall have been
delivered to and executed by the Owner Trustee. A copy of each such termination,
45
amendment, supplement, waiver or modification shall also be delivered to each
other party to this Agreement.
Section 13.03. CAPTIONS. The table of contents preceding this
Agreement and the headings of the various Articles and Sections of this
Agreement are for convenience of reference only and shall not modify, define,
expand or limit any of the terms or provisions of this Agreement.
Section 13.04. SUCCESSORS AND ASSIGNS. The terms of this Agreement
shall be binding upon, and shall inure to the benefit of, the Lessee and its
successors and permitted assigns, the Owner Participant and its successors and
permitted assigns, the Owner Trustee and its successors as Owner Trustee (and
any additional owner trustee appointed) under the Trust Agreement.
Section 13.05. CONCERNING THE OWNER TRUSTEE. Trust Company is entering
into this Agreement solely in its capacities (except to the extent otherwise
expressly indicated), not in its individual capacity but solely as Owner Trustee
under the Trust Agreement, and except as otherwise expressly provided in this
Agreement or in the Lease or the Trust Agreement, Trust Company shall not be
personally liable for or on account of its statements, representations,
warranties, covenants or obligations under this Agreement; PROVIDED, HOWEVER,
that Trust Company accepts the benefits running to it under this Agreement, and
agrees that (except as otherwise expressly provided in this Agreement or any
other Operative Agreement to which it is a party) it shall be liable in its
individual capacity for (a) its own gross negligence or willful misconduct
(whether in its capacity as trustee or in its individual capacity), (b) any
breach of representations and warranties or any breach of covenants made in its
individual capacity pursuant to or in connection with this Agreement or the
other Operative Agreements to which it is a party, (c) the failure to use
ordinary care in receiving, handling and disbursing funds, (d) Lessor's Liens
attributable to it in its individual capacity, and (e) taxes, fees or other
charges on, or based on, or measured by, any fees, commissions or compensation
received by it in connection with the transactions contemplated by the Operative
Agreements.
Section 13.06. SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 13.07. GOVERNING LAW. (a) THIS AGREEMENT IS BEING DELIVERED IN
THE STATE OF NEW YORK, AND SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, WITHOUT GIVING EFFECT TO PRINCIPLES OF
CONFLICTS OF LAWS.
(b) TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HERETO
IRREVOCABLY AGREES, ACCEPTS AND SUBMITS ITSELF TO THE
46
NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN THE CITY
AND COUNTY OF NEW YORK AND OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW
YORK, IN CONNECTION WITH ANY LEGAL ACTION, SUIT OR PROCEEDING WITH RESPECT TO
ANY MATTER RELATING TO OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
(c) TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HERETO
HEREBY IRREVOCABLY CONSENTS AND AGREES THAT THE SERVICE OF ANY AND ALL LEGAL
PROCESS, SUMMONS, NOTICES AND DOCUMENTS OF ANY OF THE AFOREMENTIONED COURTS IN
ANY SUCH SUIT, ACTION OR PROCEEDING MAY BE MADE BY MAILING COPIES THEREOF BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, AT THE ADDRESS SET FORTH PURSUANT
TO SECTION 12.01. EACH PARTY HERETO AGREES THAT SERVICE UPON IT, OR ANY OF ITS
AGENTS, IN EACH CASE IN ACCORDANCE WITH THIS SECTION 13.07(c), SHALL CONSTITUTE
VALID AND EFFECTIVE PERSONAL SERVICE UPON SUCH PARTY, AND EACH PARTY HERETO
HEREBY AGREES THAT THE FAILURE OF ANY OF ITS AGENTS TO GIVE ANY NOTICE OF SUCH
SERVICE TO ANY SUCH PARTY SHALL NOT IMPAIR OR AFFECT IN ANY WAY THE VALIDITY OF
SUCH SERVICE ON SUCH PARTY OR ANY JUDGMENT RENDERED IN ANY ACTION OR PROCEEDING
BASED THEREON.
(d) EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, AND AGREES NOT TO ASSERT, BY WAY OF MOTION, AS A
DEFENSE, OR OTHERWISE, IN ANY LEGAL ACTION OR PROCEEDING BROUGHT HEREUNDER IN
ANY OF THE ABOVE-NAMED COURTS, THAT SUCH ACTION OR PROCEEDING IS BROUGHT IN AN
INCONVENIENT FORUM, THAT VENUE FOR THE ACTION OR PROCEEDING IS IMPROPER OR THAT
THIS AGREEMENT OR ANY OTHER OPERATIVE AGREEMENT MAY NOT BE ENFORCED IN OR BY
SUCH COURTS.
(e) TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HERETO
HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION IN ANY COURT IN ANY JURISDICTION BASED UPON OR ARISING OUT OF OR RELATING
TO THIS AGREEMENT.
Section 13.08. SECTION 1110 COMPLIANCE. The parties hereto agree that
the transactions contemplated by the Operative Agreements are expressly intended
to be, shall be, and should be construed so as to be entitled to the benefits
and protection of Section 1110.
Section 13.09. ASSIGNMENT.
(a) The Owner Trustee may make a security assignment of or grant a
security interest in some or all of the Lessor's Estate ("Permitted Security
Interest"), as security for the Owner Trustee's obligations in connection with
any financing by the Owner Trustee pursuant to documents reasonably acceptable
to Lessee and otherwise in compliance with this Section 13.09, to a lender
("Lessor's Lender") which (x) shall be a bank, savings institution, finance
company, leasing company, or trust company or national banking association or
other financial institution
47
acting for its own account or in a fiduciary capacity as trustee or agent for
other financial institutions or funds, (y) shall not be an airline or other
aircraft operator or competitor of the Lessee in the business of air
transportation or an Affiliate of any thereof; and (z) shall not be a party to
any material current or overtly threatened litigation or arbitration (whether as
plaintiff or defendant) with the Lessee or any Affiliate of the Lessee.
The Owner Trustee will give Lessee at least ten (10) days prior written
notice of a Permitted Security Interest and Lessee agrees to execute and deliver
in connection with any Permitted Security Interest such documents and assurances
(including an acknowledgment of the Permitted Security Interest and a
certificate as to the absence of any Default under the Lease) and to take such
further action as the Owner Trustee may reasonably request in connection with
the Permitted Security Interest. A Lessor's Lender shall be entitled to be an
Indemnitee and an Additional Insured.
(b) In connection with a Permitted Security Interest of the Lessor's
Estate by the Owner Trustee:
(i) as a condition precedent to such Permitted Security Interest
becoming effective, the Owner Trustee will procure that the Lessor's Lender
shall execute and deliver to Lessee a letter of quiet enjoyment reasonably
acceptable to Lessee in respect of Lessee's use and possession of the
Aircraft;
(ii) the Owner Trustee shall reimburse to Lessee its reasonable
out-of-pocket expenses (including reasonable legal fees and expenses)
actually incurred in connection with any such Permitted Security Interest
referred to in this Section 13.09, provided that such expenses are
substantiated to the Owner Trustee's reasonable satisfaction; and
(iii) no such Permitted Security Interest shall impair the rights
and benefits, or increase the burdens or obligations, of Lessee hereunder
or under the Lease, including, without limitation, obligations with respect
to the payment of Rent or under Section 6.01 or 7.01 hereof.
[The remainder of this page is intentionally left blank.]
48
IN WITNESS WHEREOF, the parties have caused this Participation
Agreement to be executed by their respective, duly authorized officers as of the
day and year first written above.
CHAUTAUQUA AIRLINES, INC.,
as Lessee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
SILVERMINE RIVER FINANCE TWO, INC.,
as Owner Participation
By: /s/ ▇▇▇▇▇▇ ▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇
Title: Vice President
▇▇▇▇▇ FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION, not in its
individual capacity, except as otherwise
expressly provided herein but solely as
Owner Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title:Vice President
49
Solitair hereby acknowledges the terms and provisions of the foregoing
Participation Agreement and agrees to be bound by Section 2.01(a) thereof.
SOLITAIR CORP.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
50
TABLE OF CONTENTS
PAGE
ARTICLE 1. INTERPRETATION.................................................................................2
Section 1.01. Definitions...........................................................................2
Section 1.02. References............................................................................2
Section 1.03. Headings..............................................................................2
Section 1.04. Appendices, Schedules and Exhibits....................................................2
ARTICLE 2. SALE AND LEASING TRANSACTIONS..................................................................2
Section 2.01. Participation.........................................................................2
(a) Assignment, Sale and Purchase.........................................................2
(b) Leasing...............................................................................3
(c) Owner Participant's Equity Investment.................................................3
(d) Delivery Date.........................................................................3
Section 2.02. Closing Procedure.....................................................................4
(a) Time and Place........................................................................4
(b) Actions of the Owner Trustee..........................................................4
(c) Actions of the Lessee.................................................................5
ARTICLE 3. CONDITIONS PRECEDENT...........................................................................5
Section 3.01. Conditions Precedent to Obligations of Owner Participant..............................5
(a) Notice................................................................................5
(b) Delivery of Documents.................................................................5
(c) Export................................................................................8
(d) Violation of Law......................................................................8
(e) No Event of Default...................................................................8
(f) No Event of Loss......................................................................8
(g) Title.................................................................................8
(h) Certification.........................................................................8
(i) Section 1110..........................................................................8
(j) Filings...............................................................................8
(k) Precautionary Financing Statements....................................................8
(l) No Proceedings........................................................................9
(m) Governmental Action...................................................................9
(n) Representations and Warranties........................................................9
Section 3.02. Conditions Precedent to Obligations of Lessee.........................................9
(a) Documents.............................................................................9
(b) Corporate Documents...................................................................9
(c) Officer's Certificate................................................................10
(d) Other Conditions Precedent...........................................................10
Section 3.03. Post-Registration Opinion.............................................................9
Section 3.04. Certificate of Airworthiness.........................................................10
i
ARTICLE 4. LESSEE'S REPRESENTATIONS, WARRANTIES AND COVENANTS............................................10
Section 4.01. Lessee's Representations and Warranties..............................................10
Section 4.02. Certain Covenants of Lessee..........................................................13
(a) Filings and Recordings...............................................................13
(b) Registration.........................................................................13
(c) Information..........................................................................15
(d) Corporate Existence..................................................................15
(e) Merger and Consolidation.............................................................15
(f) Change of State of Incorporation.....................................................16
(g) Financial Statements.................................................................17
(h) Filing of Documents..................................................................17
(i) Export and Import of the Aircraft; Certification.....................................17
(j) Annual Foreign Opinion...............................................................18
Section 4.03. Survival of Representations and Warranties...........................................18
ARTICLE 5. OTHER PARTIES' REPRESENTATIONS, WARRANTIES AND COVENANTS......................................18
Section 5.01. Representations, Warranties and Covenants of Owner Participant.......................18
(a) Representations and Warranties.......................................................18
(b) Lessor's Liens.......................................................................20
(c) Assignment of Interests of Owner Participant.........................................20
(d) Actions with Respect to Lessor's Estate, Etc.........................................22
(e) Citizenship..........................................................................22
(f) Guarantees...........................................................................23
Section 5.02. Citizenship..........................................................................23
(a) Generally............................................................................23
(b) Owner Trustee........................................................................23
Section 5.03. Representations, Warranties and Covenants of Trust Company and
the Owner Trustee....................................................................23
(a) Representations and Warranties.......................................................23
(b) Lessor's Liens.......................................................................25
(c) Indemnity for Lessor's Liens.........................................................25
(d) Securities Act.......................................................................26
(e) Actions With Respect to Lessor's Estate, Etc.........................................26
(f) Other Business.......................................................................26
(g) Performance of Agreements............................................................26
Section 5.04. The Lessee's Right of Quiet Enjoyment................................................26
Section 5.05. Survival of Representations, Warranties and Covenants................................26
Section 5.06. Compliance with Trust Agreement, Etc.................................................26
ARTICLE 6. TAXES.........................................................................................27
Section 6.01. Lessee's Obligation to Pay Taxes.....................................................27
(a) Generally............................................................................27
(b) Exceptions...........................................................................28
Section 6.02. After Tax Basis......................................................................30
Section 6.03. Time of Payment......................................................................31
Section 6.04. Contests.............................................................................31
ii
(a) Notice of Claim......................................................................31
(b) Request for Contest..................................................................31
(c) Declining to Contest; Settlement.....................................................33
(d) Continuing Claims....................................................................34
(e) Claims Barred........................................................................34
Section 6.05. Refunds..............................................................................34
Section 6.06. Reports..............................................................................35
Section 6.07. Survival of Obligations..............................................................35
Section 6.08. Payment of Taxes.....................................................................36
Section 6.09. Reimbursements by Indemnitees Generally..............................................36
Section 6.10. Forms................................................................................36
Section 6.11. Verification.........................................................................36
Section 6.12. Non-Parties..........................................................................36
ARTICLE 7. GENERAL INDEMNITY.............................................................................37
Section 7.01. Generally............................................................................37
(a) Indemnity............................................................................37
(b) Exceptions...........................................................................38
Section 7.02. Notice and Payment...................................................................40
Section 7.03. Defense of Claims....................................................................40
Section 7.04. Insured Claims.......................................................................41
Section 7.05. Subrogation..........................................................................41
Section 7.06. Information..........................................................................41
Section 7.07. Survival of Obligations..............................................................42
Section 7.08. Effect of Other Indemnities..........................................................42
Section 7.09. Waiver of Certain Claims.............................................................42
Section 7.10. Certain Limitations..................................................................42
ARTICLE 8. TRANSACTION COSTS.............................................................................42
Section 8.01. Transaction Costs and Other Costs....................................................42
(a) Transaction Costs....................................................................42
(b) Continuing Expenses..................................................................43
(c) Amendments and Supplements...........................................................43
ARTICLE 9. SUCCESSOR OWNER TRUSTEE.......................................................................43
Section 9.01. Appointment of Successor Owner Trustee...............................................43
(a) Resignation and Removal..............................................................43
(b) Conditions to Appointment............................................................43
ARTICLE 10. LIABILITIES OF THE OWNER PARTICIPANT.........................................................44
Section 10.01. Liabilities of the Owner Participant.................................................44
ARTICLE 11. OTHER DOCUMENTS..............................................................................44
Section 11.01. Consent of Lessee to Other Documents.................................................44
Section 11.02. Consent of Owner Participant to Other Documents......................................44
ARTICLE 12. NOTICES......................................................................................45
iii
Section 12.01.Notices...............................................................................45
ARTICLE 13. MISCELLANEOUS................................................................................45
Section 13.01. Counterparts.........................................................................45
Section 13.02. No Oral Modifications................................................................45
Section 13.03. Captions.............................................................................46
Section 13.04. Successors and Assigns...............................................................46
Section 13.05. Concerning the Owner Trustee.........................................................46
Section 13.06. Severability.........................................................................46
Section 13.07. GOVERNING LAW........................................................................46
Section 13.08. Section 1110 Compliance..............................................................47
Section 13.09. Assignment...........................................................................47
Appendix A Definitions
Exhibit A-1 Form of Opinion of General Counsel of Lessee
Exhibit A-2 Form of Opinion of Fulbright & ▇▇▇▇▇▇▇▇ L.L.P.
Exhibit A-3 Form of Opinion of Ray, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, as special counsel
to the Owner Trustee
Exhibit A-4 Form of Opinion of Daugherty, Fowler, Peregrin & ▇▇▇▇▇▇, a
Professional Corporation
Exhibit A-5 Form of Opinion of Holland & Knight LLP, special counsel for
the Owner Participant
Exhibit A-6 Form of Opinion of General Counsel to the Owner Participant
Exhibit B-1 Form of Assignment and Assumption Agreement
Exhibit B-2 Form of Owner Participant Guaranty
Exhibit B-3 Form of Opinion of counsel to the Owner Participant in respect
of the Assignment and Assumption Agreement
iv
NOTE TO EXHIBIT 10.24
The 12 additional
Participation Agreements are substantially identical in all
material respects to the filed
Participation Agreement except as follows:
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TAIL NUMBER CLOSING DATE OWNER-PARTICIPANT
------------------------------------- ----------------------------------- -----------------------------------
N289SK July, 2001 General Electric Capital Corp.
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N290SK July, 2001 General Electric Capital Corp.
------------------------------------- ----------------------------------- -----------------------------------
N291SK August, 2001 General Electric Capital Corp.
------------------------------------- ----------------------------------- -----------------------------------
N292SK August, 2001 General Electric Capital Corp.
------------------------------------- ----------------------------------- -----------------------------------
N293SK September, 2001 General Electric Capital Corp.
------------------------------------- ----------------------------------- -----------------------------------
N294SK September, 2001 General Electric Capital Corp.
------------------------------------- ----------------------------------- -----------------------------------
N295SK November, 2001 Silvermine River Finance Two, Inc.
------------------------------------- ----------------------------------- -----------------------------------
N297SK November, 2001 Silvermine River Finance Two, Inc.
------------------------------------- ----------------------------------- -----------------------------------
N298SK October, 2001 Silvermine River Finance Two, Inc.
------------------------------------- ----------------------------------- -----------------------------------
N299SK November, 2001 Silvermine River Finance Two, Inc.
------------------------------------- ----------------------------------- -----------------------------------
N370SK November, 2001 Silvermine River Finance Two, Inc.
------------------------------------- ----------------------------------- -----------------------------------
N371SK November, 2001 Silvermine River Finance Two, Inc.
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