UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 FOR THE QUARTERLY PERIOD
ENDED SEPTEMBER 30 , 1997
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 FOR THE TRANSITION PERIOD
FROM _______ TO _______.
Commission File Number 0-27034
VANGUARD AIRLINES, INC.
(Exact name of Registrant as specified in its charter)
Delaware 48-1149290
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
30 N.W. Rome Circle
Mezzanine Level
Kansas City International Airport
Kansas City, Missouri 64153
(816) 243-2100
(Address of principal executive offices, including zip code;
Registrant's telephone number, including area code)
Indicate by check mark whether the Registrant (1) has filed
all reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months
(or for such shorter period that the Registrant was required to
file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No ______
At September 30, 1997, there were 15,223,638 shares of
Common Stock , par value $.001 per share issued and outstanding.
<PAGE>
PART I. - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
VANGUARD AIRLINES, INC.
BALANCE SHEETS
SEPTEMBER 30, DECEMBER 31,
1997 1996
ASSETS
Current assets:
Cash and cash equivalents $ 234,924 $ 402,083
Restricted cash 216,585 1,822,998
Accounts receivable, less
allowance of $154,145 at
September 30, 1997 and
$229,719 at December 31, 1996 2,889,320 3,454,418
Inventory 751,627 673,338
Prepaid expenses and other
current assets 5,342,179 3,356,374
Current portion of deferred
debt issuance costs - warrants 2,144,953 ----
Total current assets 11,579,588 9,709,211
Property and equipment, at cost:
Aircraft improvements and
leasehold costs 4,204,231 3,731,046
Reservation system and
communication equipment 1,691,308 1,516,440
Other property and equipment 3,193,381 2,404,121
9,088,920 7,651,607
Less accumulated depreciation
and amortization (4,113,638) (2,601,949)
4,975,282 5,049,658
Other assets:
Supplemental maintenance deposits 4,177,391 2,233,988
Deferred debt issuance costs
- warrants 598,118 ----
Leased aircraft deposits 1,856,000 1,506,000
Fuel and security deposits 1,325,231 1,093,185
Other 985,013 726,205
8,941,753 5,559,378
Total assets $25,496,623 $20,318,247
<PAGE>
VANGUARD AIRLINES, INC.
BALANCE SHEETS (CONTINUED)
SEPTEMBER 30, DECEMBER 31,
1997 1996
LIABILITIES AND STOCKHOLDERS' DEFICIT
Current liabilities:
Line of credit $ 2,275,000 $ 5,000,000
Notes payable to related
parties 15,773,816 2,500,000
Accounts payable 8,946,658 8,404,196
Accrued expenses 4,033,101 3,652,162
Accrued maintenance 6,149,459 4,684,550
Air traffic liability 5,517,603 6,609,609
Current portion of capital
lease obligations 18,312 155,575
Total current liabilities 42,713,949 31,006,092
Accrued maintenance, less
current portion 3,374,675 2,547,088
Capital lease obligations,
less current portion 1,297 3,084
Commitments
Stockholders' deficit:
Common Stock, $.001 par value:
Authorized shares - 50,000,000:
Issued and outstanding shares
- 15,227,857 in 1997 and
9,982,452 in 1996 15,227 9,982
Additional paid-in capital 42,587,411 28,283,996
Accumulated deficit (63,135,783) (41,446,057)
(20,533,145) (13,152,079)
Deferred stock compensation (60,153) (85,938)
Total stockholders'deficit (20,593,298) (13,238,017)
Total liabilities and stockholders'
deficit $ 25,496,623 $ 20,318,247
See accompanying notes.
<PAGE>
Vanguard Airlines, Inc.
Statements of Operations
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
1996 1997 1996 1997
Operating revenues:
Passenger
revenues $19,167,985 $18,201,522 $52,140,355 $59,055,479
Other 722,308 1,132,305 2,534,986 3,423,824
Total operating
revenues 19,890,293 19,333,827 54,675,341 62,479,303
Operating expenses:
Flying
operations 4,419,541 3,991,176 12,711,098 13,276,536
Aircraft fuel 4,539,805 4,161,317 11,730,787 14,263,517
Maintenance 3,804,766 4,655,507 10,349,055 14,606,477
Passenger
service 1,603,014 1,922,188 4,666,074 5,787,940
Aircraft and
traffic
servicing 3,870,780 3,875,221 11,481,168 12,753,663
Promotion and
sales 3,759,843 4,785,390 11,119,769 16,237,061
General and
administrative 1,105,378 1,221,155 2,922,121 3,785,916
Depreciation and
amortization 402,627 501,574 1,111,923 1,513,787
Total operating
expenses 23,505,754 25,113,528 66,091,995 82,224,897
Operating loss (3,615,461) (5,779,701) (11,416,654) (19,745,594)
Other income (expense):
Deferred debt
issuance cost -- (528,572) ---- (1,318,929)
Interest income 46,270 26,023 79,291 66,222
Interest expense (62,446) (304,162) (92,405) (691,425)
Total other
income (expense),
net (16,176) (806,711) (13,114) (1,944,132)
Net loss $(3,631,637) $(6,586,412)$(11,429,768)$(21,689,726)
Net loss
per share $(0.40) $(0.43) $(1.32) $(1.68)
Weighted average
common shares
outstanding 9,103,506 15,224,857 8,626,709 12,916,055
See accompanying notes.
[S]
Vanguard Airlines, Inc.
Statements of Cash Flows
Three Months ended
September 30,
1996 1997
Operating activities:
Net loss $(3,631,637) $(6,586,412)
Adjustments to reconcile net
loss to net cash used in
operating activities:
Depreciation and amortization 402,627 501,574
Loss on sale and disposal of
property and equipment ---- 70,888
Compensation related to stock
options 8,588 8,595
Debt issuance cost amortization 33,333 528,572
Provision for uncollectible
accounts 15,703 29,639
Changes in operating assets
and liabilities:
Restricted cash (1,740,068) 112,477
Accounts receivable 930,221 (220,175)
Inventory (186,114) (98,250)
Prepaid expenses and other
current assets (1,298,194) 337,685
Deposits on leased aircraft,
fuel and other (508,817) (1,908,439)
Accounts payable 339,770 (3,693,930)
Accrued expenses and accrued
maintenance 862,741 1,989,001
Air traffic liability (2,808,864) (890,675)
Net cash used in operating
activities (7,580,711) (9,819,450)
INVESTING ACTIVITIES:
Purchases of property and equipment (899,129) (735,870)
FINANCING ACTIVITIES:
Proceeds from sale of common stock
and exercise of options, net of
offering costs 7,150,318 1,015
Proceeds from borrowings on
line of credit 8,650,000 ----
Principal payments on line of
credit (4,650,000) ----
Principal payments on notes payable ---- ----
Proceeds from issuance of notes
payable to related parties 900,000 10,250,000
Principal payments on notes
payable to related parties (900,000) ----
Principal payments on capital
lease obligations (43,259) (47,843)
Net cash provided by financing
activities 11,107,059 10,203,172
Net increase (decrease) in
cash and cash equivalents 2,627,219 (352,148)
Cash and cash equivalents,
beginning of period (767,732) 587,072
Cash and cash equivalents,
at end of period $1,859,487 $ 234,924
<PAGE>
Vanguard Airlines, Inc.
Statements of Cash Flows
Nine Months ended
September 30,
1996 1997
Operating activities:
Net loss $(11,429,768) $(21,689,726)
Adjustments to reconcile net
loss to net cash used in
operating activities:
Depreciation and amortization 1,111,923 1,513,787
Loss on sale and disposal of
property and equipment ---- 179,412
Compensation related to stock
options 33,281 25,785
Debt issuance cost amortization 33,333 1,318,929
Provision for uncollectible
accounts 45,842 71,300
Changes in operating assets
and liabilities:
Restricted cash (2,540,068) 1,606,413
Accounts receivable (473,819) 493,798
Inventory (383,215) (78,289)
Prepaid expenses and other
current assets (1,446,026) (107,814)
Deposits on leased aircraft,
fuel and other (637,571) (4,662,248)
Accounts payable 3,443,889 542,462
Accrued expenses and accrued
maintenance 1,276,960 2,395,435
Air traffic liability 1,421,238 (1,092,006)
Net cash used in operating
activities (9,544,001) (19,482,762)
INVESTING ACTIVITIES:
Purchases of property and equipment (3,076,763) (1,340,823)
FINANCING ACTIVITIES:
Proceeds from sale of common stock
and exercise of options, net of
offering costs 7,150,312 246,660
Proceeds from borrowings on
line of credit 8,650,000 2,275,000
Principal payments on line of
credit (4,650,000) (5,000,000)
Principal payments on notes
payable (41,667) ----
Proceeds from issuance of notes
payable to related parties 900,000 23,273,816
Principal payments on notes
payable to related parties (900,000) ----
Principal payments on capital
lease obligations (120,034) (139,050)
Net cash provided by financing
activities 10,988,611 20,656,426
Net increase (decrease)
in cash and cash equivalents (1,632,153) (167,159)
Cash and cash equivalents,
beginning of period 3,491,640 402,083
Cash and cash equivalents,
at end of period $1,859,487 $ 234,924
<PAGE>
VANGUARD AIRLINES, INC.
STATEMENTS OF CASH FLOWS (CONTINUED)
Three Months ended Nine Months ended
September 30, September 30
1996 1997 1996 1997
SUPPLEMENTAL DISCLOSURES
OF CASH FLOW INFORMATION:
Cash paid during
the period for
interest $42,770 $48,892 $72,729 $145,159
SUPPLEMENTAL SCHEDULE OF
NONCASH INVESTING AND
FINANCING ACTIVITIES:
Conversion of notes
payable to related
parties to common
stock $ ---- $ ---- $ --- $10,000,000
Aircraft leasehold
costs associated
with accrued
maintenance $ ---- $ ---- $ --- $278,000
Deferred debt
issuance costs
recorded in
conjunction with
warrants issued $100,000 $348,000 $100,000 $4,062,000
Aircraft improvements
financed through
the issuance of
notes payable $ ---- $ ---- $1,000,000 $ ----
Capital leases entered
into for property
and equipment $ ---- $ ---- $134,031 $ ----
Retirement of notes
payable and reduction
of accounts payable
through sale of
property and
equipment $1,954,591 $ ---- $1,954,591 $ ----
See accompanying notes.
<PAGE>
VANGUARD AIRLINES, INC.
CONDENSED NOTES TO UNAUDITED INTERIM FINANCIAL STATEMENTS
1. BASIS OF PRESENTATION
The financial statements of Vanguard Airlines, Inc. (the
"Company") presented herein, without audit except for balance
sheet information at December 31, 1996, have been properly
prepared pursuant to the rules of the Securities and Exchange
Commission for quarterly reports on Form 10-Q and do not include
all of the information and note disclosures required by generally
accepted accounting principles. These statements should be read
in conjunction with the financial statements and notes thereto
for the year ended December 31, 1996, included in the Company's
Form 10-K as filed with the Securities and Exchange Commission on
March 28, 1997.
The balance sheet as of September 30, 1997, the statements
of operations for the three and nine months ended September 30,
1997 and 1996, and the statements of cash flows for the three and
nine months ended September 30, 1997 and 1996 are unaudited but,
in the opinion of management, include all adjustments (consisting
of normal, recurring adjustments) necessary for a fair
presentation of results for these interim periods.
The results of operations for the three or nine months ended
September 30, 1997 are not necessarily indicative of the results
to be expected for the entire fiscal year ending December 31,
1997.
The accompanying financial statements have been prepared
assuming that the Company will continue as a going concern. The
Company continues to incur losses and generates negative cash
flows from operations. In addition, the Company has a
significant working capital deficit. As a result, the Company
has been dependent upon financings from its principal
stockholders. There can be no assurance as to the availability
of future financings from the Company's principal stockholders,
other stockholders or investors. Theses factors raise
substantial doubt about the Company's ability to continue as a
going concern. The financial statements do not include any
adjustments that might result from the outcome of this
uncertainty.
Management's plans include raising additional capital and
securing additional bank financing to fund ongoing operations and
possible expansion of operations. Management's plans also
include actions designed to achieve long-term profitablilty,
including the introduction of a revised schedule along with
service to new cities, participation in certain airline
industry's computerized reservation systems ("CRS"), increased
focus on the price-sensitive business traveler, pricing
strategies to maximize passenger revenue and new cost controls.
On October 23, 1997, the Securities and Exchange Commission
("SEC") declared the Company's Registration Statement on Form S-3
effective with respect to a rights offering (the "Rights
Offering") to raise additional capital. See Note 7.
The Company does not anticipate generating sufficient cash
flow from operations during the remainder of the fourth quarter
of 1997. The Company's ability to raise additional cash through
equity or debt financings that may be required for operations or
expansion during the remainder of 1997 and early 1998 will likely
be dependent upon the Company's success implementing the factors
described above, continued support from principal stockholders
and its ability to reduce its losses and operate at profitable
levels during selected months of 1998. There can be no assurance
that these efforts or its ability to provide for the necessary
cash requirements of the Company will be successful. There can
be no assurance that any proceeds will be raised by the Company
under the Rights Offering. In addition, there can be no
assurance that management can provide for the Company's capital
requirements that may be necessary or that the Company's
principal stockholders will continue to provide cash through the
issuance of unsecured demand notes payable.
2. NEW ACCOUNTING PRONOUNCEMENTS
In February 1997, the Financial Accounting Standards Board
issued Statement No. 128, Earnings per Share, which is required
to be adopted during the fourth quarter of 1997. At that time,
the Company will be required to change the method currently used
to compute earnings per share and to restate all prior periods.
Under the new requirements for calculating basic earnings per
share, the dilutive effect of stock options will be excluded.
The calculations of net loss per share <PAGE> for the three months and
nine months ended September 30, 1997 and 1996 under Statement No.
128 will not be impacted as the effect of outstanding stock
options during these periods was antidilutive.
3. NET LOSS PER SHARE
For the three months and nine months ended September 30,
1997 and 1996, the computation of net loss per share was based on
the weighted average number of outstanding common shares.
Outstanding stock options and warrants were not included in the
calculation of net loss per share as their effect was
antidilutive.
4. LINES OF CREDIT
In January 1997, the Company entered into a bank line of
credit agreement that permits borrowings up to $2,275,000, with
interest payable monthly at the prime rate published in The Wall
Street Journal. At September 30, 1997 the Company had
outstanding borrowings of $2,275,000. This line of credit
matured on July 31, 1997 and, subsequently, was extended through
January 31, 1998. The line of credit and renewal thereof is
guaranteed by certain principal stockholders of the Company (the
"Guarantors"). In connection with the execution of the agreement
and related guarantee, the Company agreed to issue the
Guarantors warrants to purchase an aggregate of up to 2,275,000
shares of common stock at an exercise price of $1.00. Upon
execution of the agreement, the Company issued 910,000 warrants
that vested immediately. Accordingly, effective January 31,
1997, the estimated fair value of the warrants issued of
$1,100,000 was recorded as deferred debt issuance costs in the
accompanying balance sheet and is being charged to expense over
the term of the guarantee. The remaining warrants vest quarterly
and the number is dependent on the amount of borrowings against
the line, as defined in the agreement. In April, July and
October 1997, the Company issued in each month an additional
227,500 warrants under the agreement. Accordingly, effective
April 30, July 31, and October 31, 1997, the estimated fair
value of the warrants issued of $197,000, $120,000 and $6,000,
respectively, was recorded as deferred debt issuance costs and is
being charged to expense over the remaining term of the
guarantee. Each warrant expires 10 years from the date of
issuance.
5. FINANCIAL INSTRUMENTS
In January 1997, the Company completed a $4,000,000 letter
of credit facility in favor of the Company's credit card
processor. The letter of credit facility expires in January 1998
and was established by certain principal stockholders of the
Company. As consideration for establishing the letter of credit,
the Company agreed to issue up to 4,000,000 warrants to the
stockholder to purchase shares of the Company's common stock at
an exercise price of $1.00. Upon execution of the letter of
credit, the Company issued 1,600,000 warrants that vested
immediately. Accordingly, in January 1997, the estimated fair
value of the warrants issued of $1,900,000 was recorded as
deferred debt issuance costs in the accompanying balance sheet
and is being charged to expense over the term of the guarantee.
The remaining 2,400,000 warrants vest quarterly according to the
amount of exposure under such letter of credit, as defined in the
agreement. In April, July and October 1997, the Company issued
an additional 400,000 warrants under the agreement. Accordingly,
in April, July and October 1997, the estimated fair value of the
warrants issued of $367,000, $211,000 and $14,000, respectively,
was recorded as deferred debt issuance costs and is being charged
to expense over the remaining term of the guarantee. Each warrant
expires 10 years from the date of issuance. In addition, the
Company granted such principal stockholders a security interest
in all credit card receivables processed by the Company's credit
card processor.
In May 1997, the Company completed a $2,000,000 guarantee
facility in favor of the Company's credit card processor. The
guarantee facility expires in January 1999 and was established by
certain principal stockholders of the Company. As consideration
for establishing the guarantee, the Company agreed to issue up to
1,030,928 warrants to the majority stockholder to purchase shares
of the Company's common stock at an exercise price of $1.94.
Upon execution of the guarantee, the Company issued 412,371
warrants that vested immediately. Accordingly, in May 1997, the
estimated fair value of the warrants issued of $150,000 was
recorded as deferred debt issuance costs and is being charged to
expense over the term of the facility. The remaining 618,557
warrants vest quarterly according to the amount of exposure under
such guarantee, as defined in the agreement. In August 1997, the
Company issued additional warrants under the agreement.
Accordingly, in August 1997, the estimated fair value of the
warrants issued of $17,000, was recorded as deferred debt
issuance costs and is being charged to expense over the remaining
term of the guarantee. Each <PAGE> warrant expires 10 years from the
date of issuance. In addition, the Company granted the principal
stockholders a security interest in all credit card receivables
processed by the Company's credit card processor.
6. NOTES PAYABLE TO RELATED PARTIES
At September 30, 1997, the Company had $15,773,816
outstanding under unsecured demand notes payable to the principal
stockholders of the Company with interest payable at a rate of
8.0%. During October and November, 1997, the Company entered
into additional unsecured demand notes payable totaling
$4,375,000 with the principal stockholders of the Company with
interest payable at a rate of 8.0%.
7. STOCKHOLDERS' EQUITY
In April 1997, the Company completed a private sale of units
of securities, each consisting of one share of common stock and
two redeemable common stock purchase warrants. In connection
with the sale, the Company issued 5,150,000 shares of common
stock for aggregate proceeds of approximately $10,235,000, net of
offering costs of approximately $65,000. Each redeemable warrant
entitles the holder to purchase, at any time over a five-year
period commencing after the sale closing, one share of common
stock at an exercise price of $2.50. The redeemable warrant
exercise price is subject to adjustment in the event the Company
issues equity securities raising net proceeds in an aggregate
amount of $1,000,000 at a price below $2.00 per share. In such
event, the exercise price is reduced to the offering price, which
is $0.50 per share. In conjunction with the Company's Rights
Offering, (See Note 7) the warrants issued in connection with the
execution of the agreement and related guaranteed will be
repriced at $0.50 upon closing of the Rights Offering. The
Company has the right to redeem the warrants at a redemption
price of $0.05 per warrant on 45 days' prior notice if the
average closing bid price of the Company's common stock equals or
exceeds $___ for any 20 days within a period of 30 consecutive
trading days, as defined by the warrant agreement. The Company
issued 5,000,000 shares of common stock to certain principal
stockholders in lieu of repayment of $10,000,000 notes payable to
related parties in conjunction with this offering.
On October 23, 1997, the SEC declared the Company's
Registration Statement on Form S-3 effective with respect to the
Rights Offering. Under the Rights Offering, the Company is
distributing nontransferable rights, at no cost, to stockholders
of record whereby each holder will receive two rights for each
share of common stock for a price of $0.50 per share. It is
anticipated that certain principal stockholders will exercise all
of their rights pursuant to the basic subscription privilege of
the Rights Offering that in lieu of paying the subscription price
in cash, they will relieve and discharge the Company of
approximately $10.0 million of unsecured demand notes. If all of
the rights held by stockholders other than certain principal
stockholders are exercised, the net proceeds to the Company from
the sale of the common stock upon the exercise of the rights
offered are estimated at approximately $5.2 million, after
deducting approximately $100,000 in offering expenses.
ITEM 2. - MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
EXCEPT FOR THE HISTORICAL INFORMATION CONTAINED HEREIN, THIS
REPORT OF FORM 10-Q CONTAINS FORWARD-LOOKING STATEMENTS THAT
INVOLVE RISKS AND UNCERTAINTIES AND INFORMATION THAT IS BASED ON
MANAGEMENT'S BELIEFS AS WELL AS ASSUMPTIONS MADE BY AND
INFORMATION CURRENTLY AVAILABLE TO MANAGEMENT. WHEN USED IN THIS
DOCUMENT, THE WORDS "ESTIMATE," "ANTICIPATE," "PROJECT" AND
SIMILAR EXPRESSIONS ARE INTENDED TO IDENTIFY FORWARD-LOOKING
STATEMENTS. THE COMPANY'S ACTUAL RESULTS COULD DIFFER MATERIALLY
FROM THOSE CURRENTLY ANTICIPATED. FACTORS THAT COULD CAUSE OR
CONTRIBUTE TO SUCH DIFFERENCES INCLUDE, BUT ARE NOT LIMITED TO,
THOSE DISCUSSED IN THE SECTION TITLED "FACTORS THAT MAY AFFECT
FUTURE RESULTS OF OPERATIONS," AS WELL AS THOSE DISCUSSED
ELSEWHERE IN THE COMPANY'S REPORTS FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION.
<PAGE>
COMPANY
Vanguard is a low-fare airline offering convenient,
scheduled jet service primarily from its hub in Kansas City
catering to both business and leisure travelers. The Company
serves markets with a high volume of passenger traffic and with
limited or no low-fare air carrier service. The Company
currently operates eight leased Boeing 737-200 jet aircraft. The
Company currently operates 48 daily weekday flights between
Kansas City and Atlanta, Chicago-Midway, Dallas/Fort Worth,
Denver, Minneapolis/St. Paul, New York City-JFK and San
Francisco. The Company also operates four flights per day
between Minneapolis/St. Paul and Chicago-Midway. In September
1997, the Company signed letters of intent to lease two
additional Boeing 737-200 jet aircraft. The Company anticipates
delivery of its ninth and tenth aircraft in December 1997. On
December 17, 1997, in connection with the delivery of its ninth
and tenth aircraft, the Company intends to initiate service from
Kansas City to Washington D.C.-Dulles, service from Chicago-
Midway to Pittsburgh with continuing service to New York City-JFK
and service between New York City-JFK and Atlanta. The Company
also provides limited charter services. The Company to date has
not operated profitably during a quarterly reporting period.
The Company's operating revenues are derived principally
from the sale of airline services to passengers and are
recognized when transportation is provided. Total operating
revenues are primarily a function of fare levels and the number
of seats sold per flight. The Company's business is
characterized, as is true for the airline industry generally, by
high fixed costs relative to operating revenues, and low profit
margins. The Company's principal business strategy is to provide
airline services in established markets out of Kansas City and in
other selected markets that are not serviced by other low-fare
airlines.
The primary factors expected to affect the Company's future
operating revenues are the Company's ability to offer and
maintain competitive fares, the reaction of existing competitors
to the commencement of operations by the Company in a particular
market (including changes in their fare structure and schedule),
the possible entry of other low-fare airlines into the Company's
current and future markets, the effectiveness of the Company's
marketing efforts, the occurrence of events involving other low-
cost carriers, passengers' perceptions regarding the safety of
low-cost carriers and general economic conditions. The Company's
costs are affected by fluctuations in the price of jet fuel,
scheduled and unscheduled aircraft maintenance expenses, labor
costs, the level of government regulation, fees charged by
independent contractors for services provided and rent for gates
and other facilities. The Company has a limited history of
operations and since its inception on April 25, 1994 has
experienced significant losses. As of September 30, 1997, the
Company had an accumulated deficit of $63.1 million and
stockholders' deficit of $20.6 million. As a result of its
limited operating history, together with the uncertainty in the
airline industry generally, management is unable to predict the
future operating results of the Company.
OVERVIEW
Certain amounts and percentages disclosed in management's
discussion and analysis of financial condition and results of
operations for the three and nine months ended September 30, 1996
have been changed to conform to the 1997 presentation.
NINE MONTHS ENDED SEPTEMBER 30, 1997 COMPARED TO THE NINE MONTHS
ENDED SEPTEMBER 30, 1996
OPERATING REVENUES
Total operating revenues increased approximately 14% from
approximately $54.7 million for the first nine months of 1996 to
approximately $62.5 million for the first nine months of 1997.
This increase was primarily attributable to an increase in the
number of daily flights and the number of passengers on those
flights offset by the drop in passenger yield per revenue
passenger mile. During the first nine months of 1996, the
Company averaged 47 flights per day which increased to 51 flights
per day during the first nine months of 1997. The Company began
flying a new route structure on December 21, 1996, which included
the initiation of services from Kansas City to Atlanta,
Ft. Meyers, Las Vegas, Miami, Orlando and Tampa/St. Petersburg as
well as non-stop service between Chicago-Midway and Kansas City.
This route restructuring refocused the Company's strategy by
creating a Kansas City hub. Available seat miles (ASMs)
increased approximately 23%, from approximately 825 million
during the first nine months ended <PAGE> of 1996 to approximately 1,014
million during the first nine months of 1997. RPMs increased
approximately 16% from approximately 524 million during the first
nine months of 1996 to approximately 608 million during the
first nine months of 1997. The increase in ASMs was primarily
attributable to an increase in the number of daily flights and
the addition of destinations with greater flight lengths. The
increase in RPMs was primarily attributable to an increase in the
number of daily flights, the number of passengers on those
additional flights and the addition of destinations with greater
flight lengths. These increases in ASMs and RPMs that resulted
from the December schedule change were offset in September 1997
by a schedule change that reduced or eliminated service in a
number of cities. The Company discontinued service to Des
Moines, Las Vegas, Los Angeles, Orlando and Tampa/St. Petersburg
while adding service to New York-JFK in September 1997. Load
factor decreased from approximately 64% for the first nine months
of 1996 to approximately 60% for the first nine months of 1997.
This decrease was primarily the result of a 23% increase in
capacity and the addition of destinations with greater flight
lengths while experiencing only a 1% increase in the number of
passengers.
Passenger yield per revenue passenger mile (RPM) decreased
approximately 2% from approximately 9.9 cents for the first nine
months of 1996 to approximately 9.7 cents for the first nine
months of 1997. The Company had to discount fares to stimulate
travel in a number of the new markets that were introduced in
conjunction with the Company's major route restructuring in
December 1996. In addition, with the initiation of the new route
structure, the Company's average stage length increased to
594 miles from 516 miles during the first nine months of 1997
compared to the first nine months of 1996. The Company offered
promotional fares on its new city pairs throughout the first nine
months of 1997, which routes accounted for approximately 29% of
the system wide RPMs during this period. During 1996 and 1997,
the Company attempted to increase fares in selected markets in
order to improve passenger yield. The Company cannot predict
future fare levels, which depend to a substantial extent on
actions of competitors and the Company's ability to deliver a
reliable product. When sale prices or other price changes have
been made by competitors in the Company's markets, the Company
believes that it must, in most cases, match these competitive
fares in order to maintain its market share. The Company
believes that the negative impact of entering new markets and the
use of discounted fares should decrease as the Company increases
its overall revenue base and customer awareness and continues to
improve its service and reliability.
The Company also generates operating revenues as a result of
service charges from passengers who change flight reservations.
For a period of 90 days (180 days as of March 24, 1997) after the
flight date, the customer may use the value of the unused
reservation for transportation, less a $50 ($25 through
October 1996) service charge. These operating revenues were
approximately $1.5 million (approximately 2.7% of operating
revenue) and approximately $2.4 million (approximately 4.1% of
operating revenues) in the nine months ended September 30, 1996
and the nine months ended September 30, 1997, respectively.
OPERATING EXPENSES
Expenses are generally categorized as related to flying
operations, aircraft fuel, maintenance, passenger service,
aircraft and traffic servicing, promotion and sales, general and
administrative, depreciation and amortization and other expense,
including interest expense and amortization of deferred debt
issuance costs. The following table sets forth the percentage of
total operating revenues represented by these expense categories
as well as certain other selected financial data.
Nine months ended September 30,
1996 1997
Percent Cents Percent Cents
of Per of Per
Revenues ASM Revenues ASM
Total operating
revenues 100.0% 6.63 cents 100.0% 6.16 cents
Operating expenses:
Flying operations 23.3% 1.54 cents 21.2% 1.31 cents
Aircraft fuel 21.5 1.43 22.8 1.41
Maintenance 18.9 1.25 23.4 1.44
<PAGE>
Passenger service 8.5 .57 9.3 .57
Aircraft and traffic
servicing 21.0 1.39 20.4 1.26
Promotion and sales 20.4 1.36 26.0 1.60
General and
administration 5.3 .35 6.1 .37
Depreciation and
amortization 2.0 .13 2.4 .15
Total operating
expenses 120.9 8.02 131.6 8.11
Total other income
(expense), net 0.0 .00 (3.1) (.19)
Net loss (20.9%) (1.39 cents) (34.7%) (2.14 cents)
Flying operations expenses include aircraft lease expenses,
compensation of pilots, expenses related to flight dispatch and
flight operations administration, hull insurance and all other
expenses related directly to the operation of the aircraft other
than aircraft fuel and maintenance expenses. Flying operations
expenses increased approximately 4% from approximately $12.7
million (approximately 23% of operating revenues) for the first
nine months of 1996 to approximately $13.3 million (approximately
21% of operating revenues) for the first nine months of 1997.
This increase was primarily attributable to the increase in the
number of block hours flown. Block hours increased approximately
21% from 18,839 for the first nine months of 1996 to 22,717 for
the first nine months of 1997. Block hours directly correlate to
pilot pay. In addition, the Company leased three additional jet
aircraft in late 1995 and early 1996, two of which were newer,
more advanced Boeing 737-300 jet aircraft which have a larger
capacity and substantially higher lease and insurance costs. The
two Boeing 737-300 jet aircraft were returned to the lessor in
May and July 1997. Flying operations expenses decreased as a
percentage of operating revenue as a result of the increase in
flying and revenue generated from the Company's fleet during the
first nine months of 1997 versus the same period in 1996 as well
as the reduction in costs associated with the return of the 737-
300 jet aircraft.
Aircraft fuel expenses include the direct cost of fuel,
taxes and the costs of delivering fuel into the aircraft.
Aircraft fuel cost increased approximately 22% from approximately
$11.7 million (approximately 22% of operating revenues) for the
first nine months of 1996 to approximately $14.3 million
(approximately 23% of operating revenues) for the first nine
months of 1997. Higher fuel expense is directly related to the
increase in ASMs flown by the Company offset by a decrease in
cost per gallon in the first nine months of 1997 versus 1996.
Fuel cost per ASM decreased 0.01 cents or 1% from 1.43 cents in
the first nine months of 1996 to 1.41 cents in the first nine
months of 1997 primarily due to a decrease in average fuel price
per gallon. Specifically, the average price decreased from $0.76
per gallon (including taxes and into-plane costs) in the first
nine months of 1996 to $0.74 per gallon in the first nine months
of 1997, a 3% decrease. The Company will seek to pass on any
significant fuel cost increases to the Company's customers
through fare increases as permitted by then current market
conditions; however, there can be no assurance that the Company
will be successful in passing on increased fuel costs.
Maintenance expenses include all maintenance-related labor,
parts, supplies and other expenses related to the upkeep of
aircraft. Maintenance expenses increased approximately 41% from
approximately $10.3 million (approximately 19% of operating
revenues) for the first nine months of 1996 to approximately
$14.6 million (approximately 23% of operating revenues) for the
first nine months of 1997. This increase was primarily due to
the increase in block hours and cycles flown. In addition,
during the later part of 1996 and 1997, the Company incurred
charges related to certain Boeing 737-200 jet aircraft that were
in excess of what traditionally had been accrued by the Company
for major scheduled airframe, engine and landing gear maintenance
checks. The Company attributes the increase in costs associated
with major scheduled airframe, engine and landing gear
maintenance checks to the following: a change in the vendors
providing the major scheduled overhaul services; the lack of
available overhauled/used engine and landing gear replacement
parts; and the funding of nonroutine airframe repairs not
normally experienced during major scheduled airframe overhauls.
As a result, in the fourth quarter of 1996 and again in the
second quarter of 1997, the Company increased the monthly
maintenance provisions for major scheduled maintenance checks.
In the second quarter of 1997, the Company also provided for the
underaccrual of completed major maintenance checks. The Company
deposits funds with its aircraft lessors to cover a portion of or
all of the cost of its future major scheduled maintenance. The
costs of routine aircraft and engine maintenance are charged to
maintenance expense as incurred. Additionally, the Company
significantly increased the capacity of its in-house maintenance
department subsequent to January 1, 1997. The Company's
maintenance administration function expanded by eight employees
to insure compliance with all FAA and DOT regulations and
requirements. The <PAGE> Company also increased line maintenance
personnel by twelve employees including the introduction of
maintenance operations at the Chicago-Midway and Minneapolis/St.
Paul airports.
Passenger service expenses include flight attendant wages
and benefits, in-flight service, flight attendant training,
uniforms and overnight expenses, inconvenience passenger charges
and passenger liability insurance. Passenger service expenses
increased approximately 24% from approximately $4.7 million
(approximately 9% of operating revenues) for the first nine
months of 1996 to approximately $5.8 million (approximately 9% of
operating revenues) for the first nine months of 1997. This
increase was primarily due to the 23% increase in ASMs and the
16% increase in RPMs which directly resulted in an increase in
flight attendant wages and inconvenienced passenger charges.
Passenger service expenses per ASM remained consistent at
approximately .57 cents for the first nine months of 1996 and
1997.
Aircraft and traffic servicing expenses include all expenses
incurred at the airports for handling aircraft, passengers and
mail, landing fees, facilities rent, station labor and ground
handling expenses. Aircraft and traffic servicing expenses
increased approximately 11% from approximately $11.5 million
(approximately 21% of operating revenues) in the first nine
months of 1996 to approximately $12.8 million (approximately 20%
of operating revenues) in the first nine months of 1997. This
increase was primarily due to an increase in the number of cities
served and an increase in the number of departures. Departures
increased approximately 10% from 12,782 during the first nine
months of 1996 to 13,998 during the first nine months of 1997.
The decrease in aircraft and traffic servicing as a percentage of
operating revenues was primarily attributable to station
personnel cost, landing fees and other traffic servicing costs
not rising in proportion to the increases in the number of
passengers and RPMs between the first nine months of 1997 and
the first nine months of 1996. The decrease of .13 cents per ASM
was primarily due to the 15% increase in average stage length
from 516 miles to 594 miles in the first nine months of 1996 and
1997, respectively.
Promotion and sales expenses include the costs of the
reservations functions, including all wages and benefits for
reservations, rent, electricity, telecommunication charges,
credit card fees, travel agency commissions, advertising expenses
and wages and benefits for the marketing department. Promotion
and sales expenses increased approximately 46% from approximately
$11.1 million (approximately 20% of operating revenues) in the
first nine months of 1996 to approximately $16.2 million
(approximately 26% of operating revenues) in the first nine
months of 1997. This increase was primarily the result of an
increase in cities served, reflecting the Company's practice to
increase advertising when new cities are introduced in order to
create brand awareness in addition to the Company's strategy to
increase spending on advertising programs in existing cities.
The Company incurred significant increases in late 1996 and early
1997 promoting its major route restructuring, which created a hub
in Kansas City. In addition, the Company's reservation
operations expanded in May 1996 with the opening of a new
reservation center in Lawrence, Kansas. The average promotion
and sales cost per passenger increased $4.89 or 45% from $10.96
in the first nine months of 1996 to $15.85 in the first nine
months of 1997. In September 1997, the Company discontinued
service to Des Moines, Las Vegas, Los Angeles, Orlando and
Tampa/St. Petersburg while adding service to New York-JFK. With
the discontinuation of service to these cities and the Company's
planned participation in CRS, the reservation center opened in
Lawrence in May 1996 was closed in September 1997.
General and administrative expenses include the wages and
benefits for the Company's corporate employees and various other
administrative personnel, the costs for office supplies, office
rent, legal, accounting, insurance, and other miscellaneous
expenses. General and administrative expenses increased
approximately $864,000 from approximately $2.9 million
(approximately 5% of operating revenues) in the first nine months
of 1996 to approximately $3.8 million (approximately 6% of
operating revenues) in the first nine months of 1997. The
increase in general and administrative expenses as a percentage
of operating revenues and on a per ASM basis in 1997 was
primarily attributable to the increase in administrative
personnel in the Company's accounting, MIS and legal departments
as well as initiation of directors and officers insurance
coverage.
Depreciation and amortization expenses include depreciation
and amortization of aircraft modifications, ground equipment and
leasehold improvements, but does not include any amortization of
start-up and route development costs as all of these costs are
expensed as incurred. Depreciation and amortization expense
increased approximately 36% from approximately $1.1 million
(approximately 2% of operating revenues) in the first nine <PAGE> months
of 1996 to approximately $1.5 million (approximately 2% of
operating revenues) in the first nine months of 1997. This
increase was primarily the result of improvements to new and
existing aircraft and gate space at the Kansas City Airport and
those costs associated with modifications to the Company's
reservation system. In addition, the Company incurred three full
quarters of depreciation and amortization charged in the first
nine months of 1997 on property and equipment added in the first
nine months of 1996.
Other income (expense), net consists primarily of debt
issuance cost amortization, interest income and interest expense.
In connection with the guarantees of the letter of credit and the
bank line of credit agreements, each executed in January 1997 as
discussed in Notes 4 and 5 of the Company's September 30, 1997
10-Q quarterly filing, the Company issued certain stockholders
warrants to purchase shares of common stock at an exercise price
of $1.00 per share. Accordingly, the estimated fair value of the
warrants issued related to each agreement totaling $3,895,000
during the nine months ended September 30,1997 was recorded as
deferred debt issuance costs and is being amortized to expense
over the terms of the related guarantees. Interest expense
increased during the first nine months of 1997, as a result of
borrowings against the line of credit and the addition of demand
notes payable to related parties during the first nine months of
1997.
THREE MONTHS ENDED SEPTEMBER 30, 1997 COMPARED TO THE THREE
MONTHS ENDED SEPTEMBER 30, 1996
OPERATING REVENUES
Total operating revenues decreased approximately 3% from
approximately $19.9 million for the three months ended September
30, 1996 to approximately $19.3 million for the three months
ended September 30, 1997. This decrease was primarily
attributable to a decrease in the number of passengers and ASMs.
The number of passengers decreased 11% in the third quarter of
1997 compared to the third quarter of 1996. The number of ASMs
decreased 3% from approximately 309 million in the three months
ended September 30, 1996 to approximately 300 million in the
three months ended September 30, 1997. The decrease in ASMs was
the result of the Company reducing and subsequently discontinuing
service to Des Moines, Las Vegas, Los Angeles, Orlando and
Tampa/St. Petersburg in August and September 1997 while adding
service to New York-JFK.
Passenger yield per RPM decreased approximately 1% from
approximately 10.3 cents for the three months ended September 30,
1996 to approximately 10.2 cents for the three months ended
September 30, 1997. Load factor also decreased 1% from 60.2% in
the three months ended September 30, 1996 to 59.4% in the three
months ended September 30, 1997. The Company cannot predict
future fare levels, which depend to a substantial extent on
actions of competitors. When the sale prices or other price
changes have been made by competitors in the Company's markets,
the Company believes that it must, in most cases, match these
competitive fares in order to maintain its market share. The
Company believes that the negative impact of entering new markets
and the use of discounted fares should decrease as the Company
increases its overall revenue base and customer awareness.
The Company also generates operating revenues as a result of
service charges from passengers who change flight reservations.
For a period of 90 days (180 days as of March 24, 1997) after the
flight date, the customer may use the value of the unused
reservation for transportation, less a $50 ($25 through October
1996) service charge. These operating revenues were
approximately $398,000 (approximately 2% of operating revenues)
and approximately $749,000 (approximately 4% of operating
revenues) in the three months ended September 30, 1996 and the
three months ended September 30, 1997, respectively.
OPERATING EXPENSES
Expenses are generally categorized as related to flying
operations, aircraft fuel, maintenance, passenger service,
aircraft and traffic servicing, promotion and sales, general and
administrative, depreciation and amortization and other expense,
including interest expense and amortization of deferred debt
issuance costs, net. The following table sets forth the
percentage of total operating revenues represented by these
expense categories as well as certain other selected financial
data.
<PAGE>
Three months ended September 30,
1996 1997
Percent Cents Percent Cents
of Per of Per
Revenues ASM Revenues ASM
Total operating
revenues 100.0% 6.44 cents 100.0% 6.44 cents
Operating expenses:
Flying operations 22.2% 1.43 cents 20.6% 1.33 cents
Aircraft fuel 22.8 1.47 21.5 1.39
Maintenance 19.1 1.23 24.1 1.55
Passenger service 8.1 .52 9.9 .64
Aircraft and traffic
servicing 19.5 1.25 20.1 1.29
Promotion and sales 18.9 1.22 24.8 1.59
General and
administration 5.6 .36 6.3 .41
Depreciation and
amortization 2.0 .13 2.6 .17
Total operating
expenses 118.2 7.61 129.9 8.37
Total other income
(expense), net (0.1) (0.01) (4.2) ( .27)
Net loss (18.3%) (1.18 cents) (34.1)%(2.20 cents)
Flying operations expenses include aircraft lease expense,
compensation of pilots, expenses related to flight dispatch and
flight operations administration, hull insurance and all other
expenses related directly to the operation of the aircraft other
than aircraft fuel and maintenance expenses. Flying operations
expenses decreased approximately 10% from approximately $4.4
million (approximately 22% of operating revenues) for the three
months ended September 30, 1996 to approximately $4.0 million
(approximately 21% of operating revenues) for the three months
ended September 30, 1997. This decrease was primarily
attributable to the changes in the Company's aircraft fleet. In
May and July 1997, the Company returned to its lessor its two
737-300 jet aircraft, respectively. In addition, the Company
commenced operating an additional leased 737-200 jet aircraft in
June 1997. This change in aircraft mix and the net reduction of
one aircraft during the quarter resulted in a net reduction in
aircraft base rent of approximately $550,000.
Aircraft fuel expenses include the direct cost of fuel,
taxes and the costs of delivering fuel into the aircraft.
Aircraft fuel cost decreased approximately 8% from approximately
$4.5 million (approximately 23% of operating revenues) for the
three months ended September 30, 1996 to approximately $4.2
million (approximately 22% of operating revenues) for the three
months ended September 30, 1997. Lower fuel expense is directly
related to the decrease in ASMs flown by the Company and a
decrease in fuel price per gallon in the third quarter of 1997
versus 1996. Fuel cost per ASM decreased 0.08 cents or 5% from
1.47 cents in the three months ended September 30, 1996 to 1.39
cents in the three months ended September 30, 1997 primarily due
to a decrease in fuel price per gallon in the three months ended
September 30, 1997 as compared to the same period in 1996.
Specifically, the average price decreased from $0.80 per gallon
(including taxes and into-plane costs) in the three months ended
September 30, 1996 to $0.70 per gallon in the three months ended
September 30, 1997, a 12% decrease.
Maintenance expenses include all maintenance-related labor,
parts, supplies and other expenses related to the upkeep of
aircraft. Maintenance expenses increased approximately 22% from
approximately $3.8 million (approximately 19% of operating
revenues) for the three months ended September 30, 1996 to
approximately $4.7 million (24% of operating revenues) for the
three months ended September 30, 1997. During the latter part of
1996 and mid-1997, the Company incurred charges related to
certain Boeing 737-200 jet aircraft that were in excess of what
traditionally had been accrued by the Company for major scheduled
airframe, engine and landing gear maintenance checks. The
Company attributes the increase in costs associated with major
scheduled airframe, engine and landing gear maintenance checks to
the following: a change in the vendors providing the major
scheduled overhaul services; the lack of available
overhauled/used engine and landing gear replacement parts; and
the funding of nonroutine airframe repairs not normally
experienced during major scheduled airframe overhauls. As a
result, in the fourth quarter of 1996 and again in the second
quarter of 1997, the Company increased the monthly maintenance
provisions for major scheduled maintenance checks. The Company
deposits funds with its aircraft lessors to cover a portion of
<PAGE>
the cost of its future major scheduled maintenance. The costs of
routine aircraft and engine maintenance are charged to
maintenance expense as incurred. Additionally, the Company
significantly increased the capacity of its in-house maintenance
department subsequent to January 1, 1997. The Company's
maintenance administration function expanded by eight employees
to insure compliance with all FAA and DOT regulations and
requirements. The Company also increased line maintenance
personnel by twelve employees including the introduction of
maintenance operations at Chicago-Midway and Minneapolis/St. Paul
airports.
Passenger service expenses include flight attendant wages
and benefits, in-flight service, flight attendant training,
uniforms and overnight expenses and passenger liability
insurance. Passenger service expenses increased approximately
20% from approximately $1.6 million (approximately 8% of
operating revenues) for the three months ended September 30, 1996
to approximately $1.9 million (approximately 10% of operating
revenues) for the three months ended September 30, 1997. This
increase was primarily due to additional costs incurred related
to reaccommodating inconvenienced passengers that resulted from
the Company's change in its overall strategy from a point-to-
point carrier to a hub carrier and for flight schedule changes
and delays in the three months ended September 30, 1997 as
compared to 1996.
Aircraft and traffic servicing expenses include all expenses
incurred at the airports for handling aircraft, passengers and
mail, landing fees, facilities rent, station labor and ground
handling expenses. Aircraft and traffic servicing expenses for
the three months ended September 30, 1996 and 1997 remained
consistent at approximately $3.9 million (approximately 20% of
operating revenues in the three months ended September 30, 1996
and 1997, respectively). The expenses remained consistent in the
two periods primarily due to the increase in the number of
cities served offset by a decrease in the number of departures in
the third quarter of 1997 as compared to the third quarter in
1996. Departures decreased approximately 10% from 4,614 during
the three months ended September 30, 1996 to 4,160 during the
three months ended September 30, 1997.
Promotion and sales expenses include the costs of the
reservations function, including all wages and benefits for
reservationists, rent, electricity, communication charges, credit
card fees, travel agency commissions, advertising expenses and
wages and benefits for the marketing department. Promotion and
sales expenses increased approximately 27% from approximately
$3.8 million (approximately 19% of operating revenues) in the
three months ended September 30, 1996 to approximately $4.8
million (approximately 25% of operating revenues) in the three
months ended September 30, 1997. This increase was primarily the
result of the Company's strategy to increase advertising when new
cities are introduced in order to create brand awareness in
addition to the Company's changed strategy to increase spending
on advertising programs in all existing cities versus focusing
advertising dollars in certain strategic cities. The average
promotion and sales cost per passenger increased $4.75 or 43%
from $11.02 in the three months ended September 30, 1996 to
$15.77 in the three months ended September 30, 1997. In
September 1997, the Company discontinued service to Des Moines,
Las Vegas, Los Angeles, Orlando and Tampa/St. Petersburg in
September 1997 while adding service to New York-JFK.
General and administrative expenses include the wages and
benefits for the Company's executive and various other
administrative personnel, the costs for office supplies, office
rent, legal, accounting and other miscellaneous expenses.
General and administrative expenses increased approximately 10%
from approximately $1.1 million (approximately 6% of operating
revenues) in the three months ended September 30, 1996 to $1.2
million (approximately 6% of operating revenues) in the three
months ended September 30, 1997. The increase in general and
administrative expenses was primarily attributable to the
increase in administrative personnel in the Company's accounting,
MIS and legal departments as well as initiation of directors and
officers insurance coverage.
Depreciation and amortization expenses include depreciation
and amortization of aircraft modifications, ground equipment and
leasehold improvements, but does not include any amortization of
start-up and route development costs as all of these costs are
expensed as incurred. Depreciation and amortization expense
increased approximately 25% from $403,000 (approximately 2% of
operating revenues) in the three months ended September 30, 1996
to $502,000 (approximately 3% of operating revenues) in the three
months ended September 30, 1997. This increase was primarily the
result of improvements to new and existing aircraft and gate
space at the Kansas City Airport and costs associated with
modifications of the Company's reservation system as well as a
full quarter of <PAGE> depreciation and amortization charged in the
three months ended September 30, 1997 on property and equipment
added in the three months ended September 30, 1996.
Other income (expense), net consists primarily of debt
issuance cost amortization, interest income and interest expense.
In connection with the guarantees of the letter of credit and the
bank line of credit agreements, each executed in January 1997 as
discussed in Notes 4 and 5, the Company issued certain
stockholders warrants to purchase shares of common stock at an
exercise price of $1.00 per share. Accordingly, the estimated
fair value of the warrants issued related to each agreement
totaling $3,895,000 during the nine months ended September 30,
1997, was recorded as deferred debt issuance costs and is being
amortized to expense over the terms of the related guarantees.
Interest expense increased during the three months ended
September 30, 1997, as a result of borrowings against the line
of credit and the addition of notes payable to related parties
during the three months ended September 30, 1997.
LIQUIDITY AND CAPITAL RESOURCES
Since inception, the Company has financed its operations and
met its capital expenditure requirements primarily with proceeds
from private sales of equity securities, the proceeds from its
initial public offering of its Common Stock and the issuance of
debt. The Company to date has received net proceeds from the
sale of its equity securities in the aggregate amount of
approximately $36.4 million. In addition, the Company has
utilized and continues to utilize current liabilities as an
additional source of cash by delaying payments to certain of its
creditors. Most of the Company's suppliers currently provide
goods, services and operating equipment on open credit terms. If
such terms were modified to require immediate cash payments, the
Company's cash position and possibly its ability to continue to
operate would be materially and adversely affected.
On January 30, 1997, the Company established a six-month
$2.275 million line of credit with Commerce Bank, N.A. (Wichita,
KS), all of which is outstanding as of the date of the
Prospectus. The Line of Credit is guaranteed by major
stockholders of the Company. On August 1, 1997, the Company
renewed the line of credit and the guaranties for an additional
six months. In consideration for an agreement to guarantee the
Company's line of credit for two years, the Company granted
warrants to purchase up to 2,275,000 shares of the Company's
Common Stock. There can be no assurance that a replacement
$2.275 million line of credit will be available on acceptable
terms, if at all, prior to its maturity. In the event that the
Company is unable to replace or extend the line of credit prior
to January 31, 1998, the Company would be required to utilize
available cash balances, which would materially adversely affect
the Company's then current cash position. There can be no
assurance that the Company will have adequate cash resources to
pay down the line of credit.
On January 17, 1997, certain principal stockholders of the
Company agreed to establish a two-year $4.0 million letter of
credit on behalf of the Company in favor of the Company's credit
card processor in order to reduce required restricted cash
balances with such processor. On May 7, 1997 certain principal
stockholders of the Company agreed to establish a two-year $2.0
million guarantee on behalf of the Company in favor of the
Company's credit card processor in order to further reduce
required restricted cash balances with such processor to secure
its increased exposure due to increased advance ticket sales. In
consideration for these agreements, the Company agreed to issue
warrants to purchase up to 5,030,928 shares of the Company's
Common Stock. The Company anticipates increased requirements
with respect to restricted cash balances and there can be no
assurance that the Company's principal stockholders will increase
the letter of credit or guarantee or that the Company's use of
cash from operations to secure the credit card processor will not
have a material adverse effect on the Company's liquidity.
During April through November 10, 1997, the Company borrowed
an aggregate $20.1 million from the principal stockholders of the
Company in the form of unsecured demand notes payable
(collectively, the "Notes"). The proceeds received in connection
with these notes are being used mainly for working capital
purposes. The Company has also used proceeds of approximately
$800,000 from the notes to meet a portion of the deposit
requirements of its eighth, ninth and tenth aircrafts. In
addition, the Company used proceeds from the notes of
approximately $200,000 to purchase software for its new
reservation system. Finally, the Company used proceeds from the
notes of approximately $400,000 to upgrade the appearance of its
fleet, move certain administrative offices <PAGE> and change its
employees uniforms. The notes accrue interest at 8.0% There
can be no assurance that the Company's principal stockholders
will continue to provide cash through the issuance of unsecured
demand notes payable, or otherwise.
On October 23, 1997, the Securities and Exchange Commission
declared the Company's Registration Statement on Form S-3
effective with respect its Rights Offering. In connection with
the Rights Offering, the Company is distributing nontransferable
rights, at no cost, to stockholders of record. Each record
holder will receive two rights for each share of common stock
held, entitling the holders to subscribe for and purchase one
share of Common Stock for a price of $0.50 per share. It is
anticipated that the certain principal stockholders will exercise
all of their rights granted pursuant to the basic subscription
privilege of the Rights Offering. In lieu of paying the
subscription price in cash, the principal stockholders will
relieve and discharge the Company of approximately $10.0 million
of unsecured demand notes. If all of the rights held by
stockholders other than certain principal stockholders are
exercised, the net proceeds to the Company from the sale of the
Common Stock upon the exercise of the rights offered are
estimated at approximately $5.2 million, after deducting
approximately $100,000 in offering expenses. Other than the
anticipated conversion of the Notes, which does not result in new
proceeds to the Company, there can be no assurance of any
proceeds to the Company under the Rights Offering.
During the nine months ended September 30, 1997, the Company
has not generated sufficient passenger ticket sales to provide
for its operational cash needs. During the nine months ended
September 30, 1997, the Company's operating activities resulted
in a cash flow deficit of $19.5 million. These cash flow
deficits have been funded primarily through the sale of equity
securities and debt borrowings, as discussed above. At September
30, 1997, the Company had cash and cash equivalents of
approximately $235,000. The Company had a working capital
deficit at September 30, 1997 of approximately $31.1 million.
These factors raise substantial doubt about the Company's ability
to continue as a going concern. Further, the financial
statements incorporated by reference herein and the financial
information presented herein were prepared assuming the Company
will continue as a going concern and, as such, do not include any
adjustments that might result from the outcome of this
uncertainty.
The Company estimates that major scheduled maintenance of
its existing aircraft fleet through September 1998 will cost
approximately $8.0 million, of which $3.8 million will be funded
from existing supplemental rent payments recoverable from
aircraft lessors. The Company expects to expend approximately
$1.1 million on various capital expenditures related to the
upgrade of the Company's reservation systems and improvements to
existing aircraft. As of September 30, 1997, the Company has
entered into signed letters of intent or aircraft operating lease
agreements for three additional aircraft. Deposit requirements
for these aircraft total $1.1 million. The Company is also
pursuing aircraft through operating lease agreements for one
additional aircraft.
The Company does not anticipate generating sufficient cash
flow from operations during the remainder of 1997. Accordingly,
the Company plans to implement certain actions designed to
achieve long-term profitability. Management's plans to achieve
long-term profitability include: the elimination of certain
unprofitable routes, introduction of the Company's revised
schedule, the introduction of new markets in December 1997,
participation in certain of the airline industry's computerized
CRSs, increased focus on the price-sensitive business traveler
and pricing strategies to maximize passenger revenue and cost
controls. There can be no assurance that their efforts will be
successful.
Whether or not the Company receives any proceeds from the
Rights Offering or the Company's strategic plans to achieve long-
term profitability are successful, the Company's continued
operations are dependent upon the additional financing.
Management plans to raise additional capital and secure
additional bank financing to fund continued operations. Failure
to raise such funds could result in the Company significantly
curtailing or ceasing operations. The Company's ability to raise
additional cash through equity or debt financings that may be
required to continue operations during the remainder of 1997 and
early 1998 will likely be dependent upon the Company's success in
implementing actions designed to achieve long-term profitability,
as described above, and its ability to operate at profitable
levels during early 1998, as to which there can be no assurance.
There can be no assurance that management can provide for the
Company's necessary capital requirements or that the principal
stockholders will continue to provide cash through the issuance
of unsecured demand notes payable, or otherwise.
<PAGE>
FACTORS THAT MAY AFFECT FUTURE RESULTS OF OPERATIONS
Vanguard's business operations and financial results are
subject to various uncertainties and future developments that
cannot be predicted. Certain of the Company's principal risks
and uncertainties that may affect Vanguard's operations and
financial results are identified below.
LIMITED OPERATING HISTORY; HISTORY OF SIGNIFICANT LOSSES.
The Company has a limited history of operations, beginning flight
operations on December 4, 1994. The Company, to date, has yet to
report profitable operations during a quarterly reporting period.
Since the Company's inception on April 25, 1994, the Company has
incurred significant losses and as of September 30, 1997 had an
accumulated deficit of approximately $63.1 million, a
stockholders' deficit of approximately $20.6 million and a
working capital deficit of approximately $31.1 million. The
Company's limited operating history makes the prediction of
future operating results difficult. There can be no assurance
that the Company will achieve profitability and the Company
expects losses to continue through 1997.
AVAILABILITY OF WORKING CAPITAL AND FUTURE FINANCING
RESOURCES. The airline business is extremely capital intensive,
including, but not limited to, lease payment obligations for
existing and new aircraft and related maintenance requirements.
The Company has not operated profitably during any quarterly
reporting period. Consequently, the Company has been dependent
upon equity and debt financings primarily from principal
stockholders in order to maintain operations. The Company will
require additional financing, both short term and long term, if
it is to maintain operations and is evaluating additional sources
of working capital and other financings, but there is no
assurance that additional sources of working capital will be
available on acceptable terms, or at all. In addition, the
Company has utilized and continues to utilize current liabilities
as an additional source of cash by delaying payments to certain
of its creditors. Most of the Company's suppliers currently
provide goods, services and operating equipment on open credit
terms. If such terms were modified to require immediate cash
payments, the Company's cash position and possibly its ability to
continue to operate would be materially and adversely affected.
Further, there can be no assurance that the Company's principal
stockholders will continue to provide working capital for the
Company's operations. Any inability to obtain additional
financing when needed could require the Company to cease or
significantly curtail operations and would have a material
adverse effect on the Company's business, financial condition and
results of operations. See "Management's Discussion and Analysis
of Financial Condition and Results of Operations -- Liquidity and
Capital Resources."
INTENSE COMPETITION AND COMPETITIVE REACTION. The Company
is subject to intense competition. Under the Airline
Deregulation Act of 1978 (the "Deregulation Act"), domestic
certificated airlines are free to enter and exit domestic markets
and to set fares without regulatory approval, and all city-pair
domestic airline markets are generally open to any domestic
certificated airline. As a consequence, the airline industry is
intensely competitive. Airlines compete primarily with respect
to fares, schedules (frequency and flight times), destinations,
type (jet or propeller) and size of aircraft and frequent flyer
programs. The Company competes with numerous other airlines on
its routes and expects to compete with these and other airlines
on any future routes. Substantially all of these airlines are
larger and have greater name recognition and financial resources
than the Company. In response to the Company's commencement of
service to a particular market, competing airlines have, at
times, added flights and capacity in the market and lowered their
fares, making it more difficult for the Company to achieve or
maintain profitable operations in such markets. In the future,
other airlines may set their prices at or below the Company's
fares or introduce new non-stop service between cities served by
the Company in attempts to prevent the Company from achieving or
maintaining profitable operations or even maintaining operations
in that market.
CONSUMER CONCERN ABOUT OPERATING SAFETY AT LOW-FARE, START-
UP CARRIERS OR TYPE OF AIRCRAFT. Aircraft accidents or other
safety related issues involving any carrier, such as the 1996
accidents involving ValuJet and Trans World Airlines, have had an
adverse effect on airline passengers' perceptions regarding
airline safety and particularly the safety of low-fare carriers.
The Company utilizes older Boeing 737-200 jet aircraft, one was
manufactured in 1982, and seven were manufactured between 1968
and 1970, which may also have an effect on passengers perceptions
regarding safety. As a result, any such future event could have
a material adverse effect on the Company's business, financial
condition and results of operations, even if such events do not
include the Company's operations or personnel. Similarly,
publicized accounts of mechanical problems or accidents involving
<PAGE>
Boeing 737s or other aircraft that are of the same age as the
Company's aircraft whether operated by the Company or not could
have a material adverse effect on the Company's business,
financial condition and results of operations.
SEASONALITY AND CYCLICALITY. The Company's operations are
dependent upon passenger travel demand. Airlines typically
experience reduced demand at various times during the fall and
winter and increased demand for service during the spring and
summer. Within these periods, the Company may experience
variations in passenger demand based on its particular routes and
passenger demographics. The Company has experienced reduced
demand during the fall and winter with adverse effects on
revenues, operating results and cash flow. In addition,
passenger travel in the airline industry, particularly leisure
travel, is highly sensitive to adverse changes in general
economic conditions. A worsening of current economic conditions,
or an extended period of recession nationally or in the regions
served by the Company, could have a material adverse effect of
the Company's business, financial condition and results of
operations.
FUEL COSTS. The cost of jet fuel is one of the largest
operating expenses for an airline and particularly for the
Company due to the relative fuel inefficiency of its aircraft.
Jet fuel costs, including taxes and the cost of delivering fuel
into the aircraft, accounted for approximately 17.3% of the
Company's operating expenses during the nine months ended
September 30, 1997. Jet fuel costs are subject to wide
fluctuations as a result of sudden disruptions in supply. The
Company cannot predict the effect of the future availability and
cost of jet fuel. The Boeing 737-200 jet aircraft are relatively
fuel inefficient compared to newer aircraft. Accordingly, the
significant increases in the price of jet fuel has resulted in a
disproportionately higher increase in the Company's fuel expenses
as compared with many of its competitors who have, on average,
newer and thus more fuel efficient aircraft. The Company has not
entered into any agreements that fix the price of jet fuel over
any period of time. Therefore, the increase in the cost of jet
fuel has been immediately passed through to the Company by
suppliers and the Company has experienced reduced margins at
times when the Company has been unable to increase fares to
compensate for such higher fuel costs. Even at times when the
Company has been able to raise selected fares, the Company has
experienced reduced margins on sales prior to such fare
increases.
LIMITED NUMBER OF AIRCRAFT; AIRCRAFT ACQUISITIONS. The
Company's fleet currently consists of eight aircraft (with
anticipated delivery of a ninth and tenth jet aircraft in
December 1997) and if one or more of its aircraft were not in
service, the Company would experience a proportionally greater
loss of capacity than would be the case for an airline utilizing
a larger fleet. Any interruption of aircraft service as a result
of scheduled or unscheduled maintenance could materially and
adversely affect the Company's service, reputation and
profitability. The market for leased aircraft is very
competitive, and there can be no assurance that the Company will
be able to lease additional aircraft on satisfactory terms or at
the time needed. Due to the Company's financial condition and
losses since commencement of operations, the Company has found it
and may find it more difficult in the future to lease additional
aircraft on acceptable terms.
GOVERNMENT REGULATION. The Company is subject to 49 U.S.C.,
Subtitle VIII (formerly the Federal Aviation Act of 1958, as
amended) (the "Aviation Act"), under which the United States
Department of Transportation (the "DOT") and the FAA exercise
regulatory authority over airlines. This regulatory authority
includes, but is not limited to: (i) the initial determination
and continuing review of the fitness of air carriers (including
financial, managerial, compliance-disposition and citizenship
fitness); (ii) the certification and regulation of aircraft and
other flight equipment; (iii) the certification and approval of
personnel who engage in flight, maintenance and operations
activities; and (iv) the establishment and enforcement of safety
standards and requirements with respect to the operation and
maintenance of aircraft, all as set forth in the Aviation Act and
the Federal Aviation Regulations. The FAA has promulgated a
number of maintenance regulations and directives relating to,
among other things, retirement of aging aircraft, increased
inspections and maintenance procedures to be conducted on aging
aircraft, collision avoidance systems, aircraft corrosion,
airborne windshear avoidance systems and noise abatement.
As a result of recent incidents involving airlines, the FAA
has increased its review of commercial airlines generally and
particularly with respect to small, start-up airlines, such as
the Company. During 1996 and 1997, after extensive FAA
investigations, ValuJet, Kiwi International, Great Lakes and Rich
International, among others, either temporarily or permanently
suspended operations. Because of the Company's start-up status,
(i.e., operating less <PAGE> than five years), the Company's operations
along with other start-up carriers recently have been and are
expected to be subject to increased review by the FAA.
Additional rules and regulations have been proposed from
time to time in the last several years and might be enacted that
could significantly increase the cost of airline operations by
imposing substantial additional requirements or restrictions on
airline operations. For example, the National Transportation
Safety Board has proposed new regulations to require carriers to
upgrade the flight data recorders on their Boeing 737-200 jet
aircraft. The estimated cost of such equipment would be
approximately $90,000 for each of the Company's eight 737-200 jet
aircraft. There can be no assurance that any of these rules or
regulations would not have material adverse effect on the
Company's business, financial condition and results of
operations.
The DOT and FAA also enforce federal law with respect to
aircraft noise compliance requirements. The Company's current
fleet meets the current Stage-3 noise compliance requirements
(50% of its fleet is Stage-3 compliant), with four of its eight
Boeing 737-200 jet aircraft being equipped with hush kits. In
addition, the Company anticipated delivery of its ninth and tenth
aircraft which it has signed letters of intent, will be equipped
with hush kits to meet Stage-3 noise compliance requirements. In
the future, the Company's aircraft fleet is required to meet the
following federal Stage-3 noise compliance deadlines: 75% of its
fleet must be Stage-3 compliant by December 31, 1998; and 100% of
its fleet must be Stage-3 compliant by December 31, 1999.
The Company has obtained the necessary authority to perform
airline operations, including a Certificate of Public Convenience
and Necessity issued by the DOT pursuant to 49 U.S.C. Section
41102 and an air carrier operating certificate issued by the FAA
under Part 121 of the Federal Aviation Regulations. The
continuation of such authority is subject to continued compliance
with applicable rules, regulations and laws pertaining to or
affecting the airline industry, including any rules and
regulations that may be adopted by the DOT and FAA in the future.
No assurance can be given that the Company will be able to
continue to comply with all present or future rules, regulations
and laws or that such rules, regulations and laws would not
materially and adversely affect the Company's business, financial
condition and results of operations.
EMPLOYEE RELATIONS. While the Company currently operates
with relatively low personnel costs, there can be no assurance
that the Company will be able to maintain these low costs. The
Company's employees are not represented by a labor union as are
many airline industry employees. If unionization of the
Company's employees were to occur, the Company's personnel costs
could increase substantially. See "Business--Motivated and
Trained Workforce."
PASSENGER TICKET TAX. The existing ten percent ticket tax
was converted on October 1, 1997 to a combination of a reduced
percentage tax based on the price of the ticket and a fee
assessed for each flight segment. Due to the Company's low fare
structure, the combination of a percentage tax and flight segment
fee will result in an overall higher tax paid by individuals who
purchase tickets on the Company's flights and, consequently,
could have a negative impact on the Company's business, financial
condition and results of operations if the Company is unable to
pass this increased tax burden on to its passengers through
increased fares. The Company is unable, however, to predict how
the new tax/segment fee will affect demand for the Company's
product.
PART II. - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
The Company is not involved in any material litigation or
legal proceedings at this time and is not aware of any material
litigation or legal proceedings threatened against it.
ITEM 2. CHANGES IN SECURITIES
a. None.
<PAGE>
b. None.
c. None.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
None.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None.
ITEM 5. OTHER INFORMATION
None.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
Exhibit 10.1-- Aircraft Lease Agreement, dated as of
September 18, 1997, between the Interlease Aviation
Investors II (Aloha), L.L.C. and the Registrant.
Exhibit 11- Statement of Computation of Earnings per
Share for the Nine-Month Periods Ended September 30, 1996 and
1997
Exhibit 27 - Financial Data Schedule
(b) Reports on Form 8-K.
On August 22, 1997, the Company filed a report on Form 8-K
under Item 5 regarding a press release announcing that it filed
with the Securities and Exchange Commission a Registration
Statement on Form S-3 to register rights to purchase shares of
the Company's Common Stock.
On October 29, 1997, the Company filed a report on Form 8-K
under Item 5 - Other Events regarding a press release issued by
the Company on October 29, 1997 announcing the commencement of
its Rights Offering. The Company is distributing at no cost to
holders of record as of October 10, 1997 two rights for each
share of common stock held on said date. Each right entitles the
holder to purchase one share of Common Stock, for a price of
$0.50 per share.
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the registrant has duly caused
this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
Signature and Title Date
\s\ Robert J. Spane November 13, 1997
Robert J. Spane, President and
Chief Executive Officer
\s\ William A. Garrett November 13, 1997
William A. Garrett,
Vice President-Finance
and Chief Financial Officer
(Principal Financial and Accounting Officer)
AIRCRAFT LEASE AGREEMENT
Dated as of
September 18, 1997
between
INTERLEASE AVIATION INVESTORS II (ALOHA), L.L.C.
as
Lessor
and
VANGUARD AIRLINES, INC.
as
Lessee
in respect of Boeing 737 Aircraft,
Serial Number 22629,
U.S. Federal Aviation Registration No. N5WM
<PAGE>
THIS AIRCRAFT LEASE AGREEMENT (this "Agreement") is made as
of the 18th day of September, 1997 between INTERLEASE AVIATION
INVESTORS II (ALOHA), L.L.C., a limited liability company
organized under the laws of the State of Illinois whose principal
office is at One Northfield Plaza, Suite 525, Northfield,
Illinois 60093, its successors and assigns ("Lessor"), and
VANGUARD AIRLINES, INC., a company incorporated under the laws of
the State of Delaware whose chief executive office is at 30 N.W.
Rome Circle, Mezzanine Level, Kansas City International Airport,
Kansas City, Missouri 64153 ("Lessee").
WHEREAS, Lessor wishes to lease to Lessee, and Lessee is
willing to lease from Lessor, the Aircraft (as defined herein) on
the terms of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises,
covenants and agreements of the parties herein set forth, Lessor
and Lessee agree as follows:
1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement, the following terms have the meanings set
forth below:
ACCEPTANCE LOCATION Miami, Florida, or such other
location as Lessor and Lessee may
agree.
ADVANCE RENT The amount of Rent payable in
advance pursuant to paragraph 2
of the Letter Agreement.
AGREED MAINTENANCE
PERFORMER Lessee (up to and including B Check)
or any FAA approved maintenance
facility (for C Check and higher) or
any other person agreed to from time
to time in writing by Lessor (such
agreement not to be unreasonably
withheld).
AGREED MAINTENANCE
PROGRAM The Maintenance Program agreed to
from time to time in writing by
Lessor (such agreement not to be
unreasonably withheld).
AGREED VALUE $8,000,000 or, if higher, the
appraised value of the Aircraft most
recently determined by an appraiser
<PAGE>
selected by Lessor in writing and
provided to Lessee from appraisers
experienced in valuing Boeing 737
aircraft.
AIR AUTHORITY The FAA.
AIRCRAFT The aircraft described in Part 1 of
Schedule 1 (which term includes,
where the context permits, a
separate reference to all Engines,
Parts and Aircraft Documents).
AIRCRAFT DEPOSITS All amounts payable pursuant to
Section 5.1.
AIRCRAFT DOCUMENTS The documents, data and records
identified in Part 2 of Schedule 1
and all additions, renewals, revi-
sions and replacements from time to
time made in accordance with this
Agreement.
AIRFRAME The Aircraft, excluding the Engines
and Aircraft Documents.
APU The auxiliary power unit installed
on the Aircraft on the Delivery Date
and any replacement auxiliary power
unit installed in accordance with
this Agreement.
BANKS Such financial institution(s) or
other lenders which from time to
time finance(s) the Aircraft for
Lessor and/or for whose benefit
security over, or rights relating
to, the Aircraft and/or this
Agreement is granted by Lessor or at
its request.
BOEING The Boeing Company, a Delaware
corporation with its principal
office in Seattle, Washington.
BUSINESS DAY A day (other than a Saturday or
Sunday) on which business of the
nature required by this Agreement is
carried out in the State of Iowa or
where used in relation to payments
on which banks are open for banking
<PAGE>
business in Cedar Rapids, Iowa and
Kansas City, Missouri.
CERTIFICATED AIR
CARRIER Any corporation (except the United
States Government) domiciled in the
United States of America and holding
a Certificate of Convenience and
Necessity issued under 49 U.S.C.
Section 41102 by the Department of
Transportation or any predecessor or
successor agency thereto and an Air
Carrier Certificate issued by the
FAA under 49 U.S.C. Section 44705,
or, in the event such Certificates
shall no longer be issued, any
corporation (except the United
States Government) domiciled in the
United States of America and legally
engaged in the business of
transporting for hire passengers or
cargo by air predominantly to, from
or between points within the United
States of America, and, in either
event, operating commercial jet
aircraft, which also is certificated
so as to fall within the purview of
Section 1110 of Title 11 of the
United States Code or any similar
statute.
COLD SECTION
REFURBISHMENT The completion of the following
tasks with respect to an Engine:
completely unstack both high and low
compressors and accomplish complete
visual inspection; de-blade disks as
necessary; accomplish visual
inspections of all disks; measure to
assure all snap diameters on disks
are within limits; inspect blades
for proper chord dimensions and
cracking; repair or replace blades
below minimums; inspect and repair
stators as necessary; blade up disks
using new lock plates; assemble
compressor rotors; balance both
rotors; and install rotors in such
Engine.
CYCLE One take-off and landing of the
Aircraft.
<PAGE>
DAMAGE NOTIFICATION
THRESHOLD $200,000.
DEFAULT Any Event of Default and any event
or condition which with the giving
of notice or lapse of time would
constitute an Event of Default.
DELIVERY DATE The date on which the Aircraft is
tendered for delivery by Lessor in
the condition required by Section
4.2 and Schedule 1 in accordance
with this Agreement.
DELIVERY LOCATION Kansas City, Missouri, or such other
location as the parties may agree.
DOLLARS AND $ The lawful currency of the United
States of America.
ENGINE Whether or not installed on the
Aircraft:
(a) each engine of the manufacture
and model specified in Part 1
of Schedule 1 (each of which
has 750 or more rated takeoff
horsepower or the equivalent
of such horsepower) which
Lessor tenders to Lessee with
the Aircraft on the Delivery
Date, such engines being
described as to serial numbers
on the certificate of
acceptance to be executed by
Lessee upon delivery of the
Aircraft; or
(b) any engine which has replaced
that engine, title to which
has, or should have, passed to
Lessor in accordance with this
Agreement;
and in each case includes all
modules and Parts from time to
time belonging to or installed
in that engine but excludes
any properly replaced engine,
title to which has, or should
have, passed to Lessee pursu-
ant to this Agreement.
<PAGE>
EVENT OF DEFAULT An event or condition specified in
Section 13.1.
EVENT OF LOSS With respect to the Aircraft
(including for the purposes of this
definition the Airframe):
(a) the actual or constructive
total loss of the Aircraft
(including any damage to the
Aircraft which results in an
insurance settlement on the
basis of a total loss, or
requisition for use or hire
which results in an insurance
settlement on the basis of a
total loss); or
(b) it being destroyed, damaged
beyond repair or permanently
rendered unfit for normal use
for any reason whatsoever; or
(c) the requisition of title, or
other compulsory acquisition,
capture, seizure, deprivation,
confiscation or detention for
any reason of the Aircraft by
the government of the State of
Registration or other
competent authority (whether
de jure or de facto), but
excluding requisition for use
or hire not involving requisi-
tion of title; or
(d) the hijacking, theft, condem-
nation, confiscation, seizure
or requisition for use or hire
of the Aircraft which deprives
any person permitted by this
Agreement to have possession
and/or use of the Aircraft of
its possession and/or use for
more than 15 days.
EXCUSABLE DELAY With respect to delivery of the
Aircraft, delay or non-performance
due to or arising out of acts of God
or public enemy, civil war,
insurrection or riot, fire, flood,
explosion, earthquake, accident,
<PAGE>
epidemic, quarantine restriction,
any act of government, governmental
priority, allocation, regulation or
order affecting directly or
indirectly, the Aircraft, any
vendor, Lessor or any materials or
facilities which are necessary for
the delivery of the Aircraft in
accordance with, and in the
condition required by this
Agreement, strike or labor dispute
causing cessation, slowdown or
interruption of work which are
necessary for the delivery of the
Aircraft in accordance with, and in
the condition required by this
Agreement, inability after due and
timely diligence to procure
equipment, data or materials which
are necessary for the delivery of
the Aircraft in accordance with, and
in the condition required by this
Agreement from manufacturers,
suppliers, any existing owner,
seller or lessee in a timely manner,
damage to the Aircraft, destruction
or loss of the Aircraft, or any
other cause to the extent that such
cause is beyond the control of
Lessor.
EXPIRATION DATE Subject to Section 4.6, the day
preceding the numerically corre-
sponding day 84 months after the
Delivery Date or, if earlier, the
date on which:
(a) the Aircraft has been
redelivered in accordance with
this Agreement; or
(b) Lessor receives the Agreed
Value following an Event of
Loss.
FAA The Federal Aviation Administration
of the United States of America and
any successor thereof.
FEDERAL AVIATION ACT 49 U.S.C. Subtitle VII, as amended,
or any similar legislation of the
<PAGE>
United States of America enacted in
substitution or replacement thereof.
FINANCING STATEMENTS Uniform Commercial Code Financing
Statements in respect of this
Agreement and the collateral
described therein prepared in a form
acceptable for filing with the
applicable Government Entities in
the Habitual Base, the State in
which the chief executive office (as
that term is defined in Article 9 of
the Uniform Commercial Code as in
effect in the State of Missouri) and
such other jurisdiction as Lessor
shall reasonably require.
FLIGHT HOUR Each hour or part thereof (rounded
to two decimal places) elapsing from
the moment the wheels of the
Aircraft leave the ground on take
off until the wheels of the Aircraft
next touch the ground.
GOVERNING LAW The laws of the State of Illinois.
GOVERNMENT ENTITY Any of the following:
(a) any national government,
political subdivision thereof,
or local jurisdiction therein;
(b) any instrumentality, board,
commission, court or agency of
any thereof, however
constituted; and
(c) any association, organization,
or institution of which any of
the above is a member or to
whose jurisdiction any thereof
is subject or in whose activi-
ties any of the above is a
participant.
HABITUAL BASE The State of Missouri, or, subject
to the prior written consent of
Lessor, any other state, country or
countries in which the Aircraft is
for the time being habitually based.
<PAGE>
HOT SECTION
REFURBISHMENT The complete visual inspection and
repair as necessary of the com-
bustion section of an Engine. In
conducting such inspection and
repair, the engine shop must
completely unstack the high pressure
turbine and accomplish complete
visual inspection; de-blade disks as
necessary; accomplish visual
inspections of all disks; measure to
assure all snap diameters on disks
are within limits; inspect blades
for proper chord dimensions and
cracking; repair or replace blades
below minimums; inspect and repair
stators as necessary; blade up disks
using new lock plates; assemble
compressor rotors, balance both
rotors; and install rotors in such
Engine.
INDEMNITEES Each of Lessor and Banks and any of
their respective successors and
assigns, shareholders, subsidiaries,
affiliates, partners, contractors,
directors, officers, servants,
agents and employees.
LANDING GEAR The landing gear assembly of the
Aircraft excluding any rotable
components.
LESSOR LIEN Any of the following:
(a) any security interest
whatsoever from time to time
created by or through Lessor
in connection with the
financing of the Aircraft;
(b) any other security interest in
respect of the Aircraft which
results from acts of or claims
against Lessor not related to
the transactions contemplated
by or permitted under this
Agreement; and
(c) liens in respect of the
Aircraft for Lessor Taxes.
<PAGE>
LESSOR TAXES Taxes:
(a) imposed as a result of
activities of Lessor in the
jurisdiction imposing the
liability unrelated to
Lessor's dealings with Lessee
with respect to the Aircraft
or to the transactions contem-
plated by this Agreement or
the operation of the Aircraft
by Lessee; or
(b) imposed on or measured by the
gross or net income, profits,
capital or gains of Lessor by
any Government Entity in the
United States of America; or
(c) imposed with respect to (i)
any period prior to the
Delivery Date, (ii) any event
occurring prior to the
Delivery Date (other than the
execution of this Agreement),
or (iii) any period commencing
or event occurring after the
Expiration Date; or
(d) penalties, surcharges, fines
or interest which otherwise
would not be Lessor Taxes but
which are imposed as a direct
result of (i) the failure of
Lessor to timely and properly
file a tax return or to pay
any Taxes which are required
to be filed or paid by Lessor;
or (ii) the failure by Lessor
to timely and properly furnish
to Lessee any information,
document or signature required
by Lessee in order for Lessee
to timely and properly file a
tax return or to pay any Taxes
on behalf of Lessor which
Lessee is obligated to do
hereunder; or
(e) imposed by reason of the gross
negligence or wilful
<PAGE>
misconduct of Lessor (or any
assignee of Lessor);
(f) imposed on Lessor as a direct
result of an assignment or
disposition by Lessor of the
Aircraft, any interest in or
with respect to the Aircraft,
or any interest in or with
respect to this Agreement or
the Rent; or
(g) any Taxes based or measured by
any fees received by any
Trustee holding title to the
Aircraft on behalf of the
Lessor; or
(h) any Tax imposed on, resulting
from, or which would not have
occurred but for a Lessor
Lien.
LETTER AGREEMENT Letter Agreement of even date
herewith between Lessor and Lessee
in respect of the Aircraft, the
terms of which constitute an
integral part of this Agreement.
MAINTENANCE PROGRAM An FAA-approved maintenance program
for the Aircraft encompassing
scheduled maintenance (including
block maintenance), condition
monitored maintenance, and/or
on-condition maintenance of
Airframe, Engines and Parts,
including but not limited to,
servicing, testing, preventive
maintenance, repairs, structural
inspections, system checks,
overhauls, approved modifications,
service bulletins, engineering
orders, airworthiness directives,
corrosion control, inspections and
treatments.
MAINTENANCE RESERVES All amounts payable under
section 5.4(a).
MAJOR CHECKS Any C-Check, multiple C-Check, Q-Check,
D-Check or annual heavy
maintenance visit or segment thereof
<PAGE>
suggested for commercial aircraft of
the same model as the Aircraft by
its manufacturer (however
denominated) as set out in the
Agreed Maintenance Program.
MANUFACTURER Boeing.
MINIMUM LIABILITY
COVERAGE $400,000,000 on each occurrence.
OTHER AGREEMENTS Any agreement (other than this
Agreement) made or to be made
between Lessor (or an affiliate,
associate or subsidiary of Lessor)
and Lessee (or a Subsidiary of
Lessee), including, but not limited
to, that certain Aircraft Lease
Agreement dated as of December 11,
1995 between Mimi Leasing Corp. and
Lessee and that certain Aircraft
Lease Agreement dated as of May 31,
1997 between Interlease Aviation
Investors III (TACA), L.L.C. and
Lessee.
PART Whether or not installed on the
Aircraft:
(a) any component, furnishing or
equipment (other than a
complete Engine) furnished
with the Aircraft on the
Delivery Date; and
(b) any other component,
furnishing or equipment (other
than a complete Engine) title
to which has, or should have
passed to Lessor pursuant to
this Agreement;
but excludes any such items, title
to which has, or should have, passed
to Lessee pursuant to this
Agreement.
PERMITTED LIEN The following, and only the
following:
(a) any lien for Taxes not
assessed or, if assessed, not
<PAGE>
yet due and payable, or being
contested in good faith by
appropriate proceedings;
(b) any lien of a repairer,
mechanic, carrier, hangar-
keeper or other similar lien
arising in the ordinary course
of business or by operation of
law in respect of obligations
which are not overdue or are
being contested in good faith
by appropriate proceedings;
but only if (in the case of both (a)
and (b)) (i) adequate reserves have
been provided by Lessee for the
payment of the Taxes or obligations;
and (ii) such proceedings, or the
continued existence of the lien, do
not give rise to any likelihood of
the sale, forfeiture or other loss
of the Aircraft or any interest
therein or of criminal liability on
Lessor or any Bank; and
(c) any Lessor Lien.
PERSON Any individual person, corporation,
partnership, limited liability
company or partnership, firm, joint
stock company, joint venture, trust,
estate, unincorporated organization,
association, Government Entity, or
organization or association of which
any of the above is a member or a
participant.
PRIME RATE The rate of interest most recently
announced by Lessor's bank as its
prime rate, as in effect from time
to time.
REDELIVERY LOCATION Kansas City, Missouri, or such other
location as the parties may agree.
RENT All amounts payable pursuant to
section 5.3.
RENTAL PERIOD Each period ascertained in
accordance with section 5.2.
<PAGE>
RENT DATE The first day of each Rental Period.
SECURITY INTEREST Any mortgage, charge, pledge, lien,
assignment, hypothecation, right of
set off or any agreement or arrange-
ment having the effect of creating a
security interest other than a
Permitted Lien, or any agreement to
create the foregoing other than a
Permitted Lien.
STATE OF INCORPORATION The State of Delaware.
STATE OF REGISTRATION The United States of America.
SUBSIDIARY (a) in relation to any reference
to financial statements, any
company whose accounts are
consolidated with the accounts
of Lessee in accordance with
accounting principles
generally accepted under
accounting standards of the
State of Incorporation; and
(b) for any other purpose an
entity from time to time:
(i) of which another has
direct or indirect
control or owns
directly or indirectly
more than fifty (50)
percent of the voting
share capital; or
(ii) which is a direct or
indirect subsidiary of
another under the laws
of the jurisdiction of
its incorporation.
TAXES Taxes, duties and the like of all
kinds and any other amount
corresponding to any taxation,
together with any penalties, fines,
surcharge or interest thereon, which
are imposed by any Government Entity
or other competent authority having
power to collect public charges.
<PAGE>
TERM The period commencing on the
Delivery Date and ending on the
Expiration Date.
1.2 CONSTRUCTION
(a) In this Agreement, unless a contrary intention is
expressly stated, a reference to:
(i) each of "Lessor" or "Lessee" or any
other person includes without prejudice to the provisions of
this Agreement any successor in title to it and any
permitted assignee;
(ii) words importing the plural shall include
the singular and vice versa;
(iii) any document shall include that document
as amended, modified, novated or supplemented;
(iv) a law [A] includes any statute, decree,
constitution, regulation, order, judgment or directive of
any Government Entity; [B] includes any treaty, pact,
compact or other agreement to which any Government Entity is
a signatory or party; [C] includes any judicial or adminis-
trative interpretation or application thereof and (4) is a
reference to that provision as amended, substituted or
re-enacted;
(v) a Section or a Schedule is a reference
to a section of or a schedule to this Agreement; and
(b) The headings in this Agreement are for convenience
only and shall not be considered part of any Section for purposes
of construing this Agreement.
2. REPRESENTATIONS AND WARRANTIES
2.1 LESSEE'S REPRESENTATIONS AND WARRANTIES: Lessee
represents and warrants to Lessor that:
(a) STATUS. Lessee is a corporation duly incorporated
and validly existing in good standing under the laws of the State
of Incorporation and has the corporate power to own its assets
and carry on its business as it is being conducted and is the
holder of all necessary air transportation licenses required in
connection therewith and with the use and operation of the
Aircraft;
(b) POWER AND AUTHORITY. Lessee has the corporate
power to enter into and perform, and has taken all necessary
corporate action to authorize the entry into, performance and
<PAGE>
delivery of, this Agreement and the transactions contemplated by
this Agreement;
(c) LEGAL VALIDITY. This Agreement constitutes
Lessee's legal, valid and binding obligation, enforceable against
Lessee in accordance with its terms;
(d) NO CONFLICTS, ETC. The entry into and performance
by Lessee of, and the transactions contemplated by, this
Agreement do not and will not:
(i) conflict with any laws binding on
Lessee; or
(ii) conflict with any provisions of the
organizational documents of Lessee, or
(iii) conflict with or result in default under
any indenture, mortgage, chattel mortgage, deed of trust,
conditional sales contract, lease, bank loan or credit
agreement or other agreement which is binding upon Lessee or
any of its assets nor result in the creation of any Security
Interest over any of its assets;
(e) AUTHORIZATIONS. All authorizations, consents,
registrations and notifications required in connection with the
entry into, performance, validity and enforceability of, this
Agreement and the transactions contemplated by this Agreement,
have been (or will on or before the Delivery Date have been)
obtained by Lessee or effected (as appropriate) and are (or will
on their being obtained or effected be) in full force and effect;
(f) NO IMMUNITY.
(i) Lessee is subject to civil U.S.
commercial law with respect to its obligations under this
Agreement; and
(ii) neither Lessee nor any of its assets is
entitled to any right of immunity and the entry into and
performance of this Agreement by Lessee constitute private
and commercial acts;
(g) FINANCIAL STATEMENTS. The audited consolidated
financial statements of Lessee and its Subsidiaries most recently
delivered to Lessor:
(i) have been prepared in accordance with
United States generally accepted accounting principles
applied consistently with the past practices of Lessee and
its Subsidiaries; and
<PAGE>
(ii) fairly represent the consolidated
financial condition of Lessee and its Subsidiaries as at the
date thereof;
(h) CHIEF EXECUTIVE OFFICE. Lessee's chief executive
office (as that term is defined in Article 9 of the Uniform
Commercial Code as in effect in the State of Missouri) is located
at 30 N.W. Rome Circle, Mezzanine Level, Kansas City
International Airport, Kansas City, Missouri 64153;
(i) CERTIFICATED AIR CARRIER. Lessee is a
Certificated Air Carrier and Lessor, as lessor of the Aircraft to
Lessee, is entitled to the benefits of Section 1110 of Title 11
of the United States Code with respect to the Aircraft; and
(j) CITIZEN OF THE UNITED STATES. Lessee is a
"citizen of the United States" as defined in 49 U.S.C.
Section 40102(15) of the Federal Aviation Act.
2.2 LESSEE'S FURTHER REPRESENTATIONS AND WARRANTIES: Lessee
further represents and warrants to Lessor that:
(a) NO DEFAULT.
(i) no Default has occurred and is continu-
ing or might result from the entry into or performance of
this Agreement; and
(ii) except as disclosed to Lessor in
writing:
[A] no other event has occurred and is
continuing which constitutes a material event
of default under any indenture, mortgage,
chattel mortgage, deed of trust, conditional
sales contract, lease, bank loan or credit
agreement or other material agreement which
is binding on Lessee or any assets of Lessee
as to which the other party has accelerated
the entire unpaid balance or commenced the
exercise of any remedy; and
[B] Lessee is not insolvent, is not
failing to pay its debts in the ordinary
course of business as they mature and is not
deferring, postponing or extending the
payment of any material portion of its
liabilities beyond its customary payment
practices during the preceding 12 month
period.
<PAGE>
(b) REGISTRATION.
(i) except for the filing of this Agreement
with the FAA and the Financing Statements and related
documents with the appropriate Governmental Entity, it is
not necessary under the laws of the State of Incorporation
or the Habitual Base in order to ensure the validity,
effectiveness and enforceability of this Agreement or to,
establish, perfect or protect the property rights of Lessor
in the Aircraft or any Engine or Part that this Agreement or
any other instrument relating thereto be filed, registered
or recorded or that any other action be taken or if any such
filings, registrations, recordings or other actions are
necessary, the same have been effected or will have been
effected on or before the Delivery Date; and
(ii) upon the filing of the Financing
Statements and related documents with the appropriate
Governmental Entity, and the filing of this Agreement with
the FAA, under the laws of the State of Incorporation and
the Habitual Base the property rights of Lessor in the
Aircraft, have been fully established, perfected and
protected and this Agreement will have priority in all
respects over the claims of all creditors of Lessee;
(c) LITIGATION. No litigation, arbitration, adminis-
trative proceedings or investigation are pending or to Lessee's
knowledge threatened against Lessee which, if adversely
determined, would have a material adverse effect upon its
financial condition or business or its ability to perform its
obligations under this Agreement;
(d) PARI PASSU. The obligations of Lessee under this
Agreement rank at least pari passu with all other present and
contingent unsecured and unsubordinated obligations (including
contingent obligations) of Lessee, with the exception of such
obligations as are mandatorily preferred by law and not by virtue
of any contract;
(e) MATERIAL ADVERSE CHANGE. There has been no
material adverse change in the consolidated financial condition
of Lessee and its Subsidiaries or the financial condition of
Lessee since the date of the most recent audited consolidated
financial statements provided to Lessor on or prior to the
Delivery Date;
(f) TAXES. Lessee has delivered all necessary returns
and payments due to the tax authorities in the State of Incorpo-
ration and the Habitual Base and all other jurisdictions in which
Lessee is required to pay taxes and/or file tax returns or tax
reports, the failure of which is reasonably likely to result in
the creation or imposition of a Security Interest in the Aircraft
or otherwise might have a material adverse effect on Lessee's
ability to perform its obligations under this Agreement and on
<PAGE>
its financial condition, and Lessee is not required by law to
deduct any Taxes from any payments under this Agreement;
(g) INFORMATION. To Lessee's knowledge, the financial
and other information furnished by Lessee in connection with this
Agreement does not contain any untrue statement or omit to state
facts, the omission of which makes the statement therein, in the
light of the circumstances under which they were made,
misleading, nor omits to disclose any material matter to Lessor
and all forecasts and opinions contained therein were honestly
made on reasonable grounds after due and careful inquiry by
Lessee;
(h) FOREIGN ASSET CONTROL. As of the date of this
Agreement, Lessee does not hold any contract or other obligation
to operate the Aircraft to any of the countries designated under
the United States Foreign Asset Control Regulations (31 C.F.R.
Parts 500-599), including, as of the date hereof, Cuba, Haiti,
Iraq, Libya, North Korea, the Federal Republic of Yugoslavia
(Serbia and Montenegro) and the Unita Rebels of Angola;
(i) ERISA. Lessee is not engaged in any transaction
in connection with which it could be subjected to either a civil
penalty assessed pursuant to Section 502(c) of ERISA or any tax
imposed by Section 5975 of the Internal Revenue Code of 1986, as
amended; no material liability of the Pension Benefit Guaranty
Corporation has been or is expected by Lessee to be incurred with
respect to any employee pension benefit plan (as defined in
Section 3 of ERISA) maintained by Lessee; there has been no
reportable event (as defined in Section 4043(b) of ERISA) with
respect to any such employee pension benefit plan. There is no
event of termination of any such employee pension benefit plan by
the Pension Benefit Guaranty Corporation; and no accumulated
funding deficiency (as defined in Section 302 of ERISA or Section
412 of the Internal Revenue Code), whether or not waived, exists
with respect to any such employee pension benefit plan; and
(j) MAINTENANCE PROGRAM. The Maintenance Program for
the Aircraft complies with all FAA requirements and is based on
the Boeing MPD.
2.3 SURVIVAL. The representations and warranties in
Sections 2.1 and 2.2 will survive the execution of this Agreement
will be deemed to be remade by Lessee on the Delivery Date with
reference to the facts and circumstances then existing. The
representations and warranties contained in Clause 2.1 will be
deemed to be remade by Lessee on each Rent Date as if made with
reference to the facts and circumstances then existing.
2.4 LESSOR'S REPRESENTATIONS AND WARRANTIES. Lessor
represents and warrants to Lessee that:
<PAGE>
(a) STATUS. Lessor is a limited liability company
duly incorporated and validly existing under the laws of the
State of Illinois and has the power to own its assets and carry
on its business as it is now being conducted and is the holder of
all necessary air transportation licenses required in connection
with the ownership of the Aircraft;
(b) POWER AND AUTHORITY. Lessor has the corporate
power to enter into and perform, and has taken all necessary
corporate action to authorize the entry into, performance and
delivery of, this Agreement and the transactions contemplated by
this Agreement;
(c) LEGAL VALIDITY. This Agreement constitutes
Lessor's legal, valid and binding obligation, enforceable against
Lessor in accordance with its terms;
(d) NO CONFLICTS. The entry into and performance by
Lessor of, and the transactions contemplated by, this Agreement
do not and will not:
(i) conflict with any laws binding on
Lessor; or
(ii) conflict with the organizational
documents of Lessor; or
(iii) conflict with or result in default under
any indenture, mortgage, chattel mortgage, deed of trust,
conditional sales contract, lease, bank loan or credit
agreement or other agreement which is binding upon Lessor or
any of its assets;
(e) AUTHORIZATIONS. All authorizations, consents,
registrations and notifications required in connection with the
entry into, performance, validity and enforceability of, and the
transactions contemplated by, this Agreement by Lessor have been
(or will on or before the Delivery Date have been) obtained by
Lessor or effected (as appropriate) and are (or will on their
being obtained or effected be) in full force and effect;
(f) NO IMMUNITY
(i) Lessor is subject to civil U.S.
commercial law with respect to its obligations under this
Agreement; and
(ii) neither Lessor nor any of its assets is
entitled to any right of immunity and the entry into and
performance of this Agreement by Lessor constitute private
and commercial acts;
<PAGE>
(g) CITIZEN OF THE UNITED STATES. Lessor is a
"citizen of the United States" as defined in 49 U.S.C.
Section 40102(15) of the Federal Aviation Act; and
(h) LITIGATION. No litigation, arbitration, adminis-
trative proceedings or investigation are pending or to Lessor's
knowledge threatened against Lessor which, if adversely
determined, would have a material adverse effect upon its
financial condition or business or its ability to perform its
obligations under this Agreement.
3. CONDITIONS PRECEDENT
3.1 LESSOR'S CONDITIONS PRECEDENT. Lessor's obligation to
deliver and lease the Aircraft to Lessee under this Agreement is
subject to satisfaction of each of the following conditions:
(a) Receipt by Lessor from Lessee on the Delivery Date
of the following, reasonably satisfactory in form and substance
to Lessor:
(i) ORGANIZATIONAL DOCUMENTS. A copy of the
organizational documents of Lessee, certified by the
Secretary or an Assistant Secretary of Lessee;
(ii) RESOLUTIONS. A copy of resolutions of
the board of directors of Lessee, certified by the Secretary
or an Assistant Secretary of Lessee, approving the terms of,
and the transactions contemplated by, this Agreement,
resolving that it enter into this Agreement, and authorizing
a specified person or persons to execute this Agreement and
accept delivery of the Aircraft on its behalf;
(iii) OPINION. An opinion, dated the Delivery
Date, by legal counsel for Lessee, as to such matters and in
form and substance reasonably acceptable to Lessor;
(iv) FAA OPINION. An opinion of counsel for
Lessee, acceptable to Lessor, who are recognized specialists
with regard to FAA matters, as to such FAA matters and in
form and substance reasonably acceptable to Lessor;
(v) APPROVALS. Each approval, license and
consent which may be required in relation to the performance
by Lessee of any of its obligations hereunder (including,
without limitation, any consent to the export of the
Aircraft from the Habitual Base upon the termination of the
leasing of the Aircraft under this Agreement);
(vi) IMPORT. Any required import license,
and all customs formalities, relating to the import of the
Aircraft into the Habitual Base have been obtained or
<PAGE>
complied with by Lessor, and that the import of the Aircraft
into the Habitual Base is exempt from Taxes;
(vii) LICENSES. Certified copies of Lessee's
air transport license, air operator's certificates and all
other licenses, certificates and permits required by Lessee
in relation to, or in connection with, the operation of the
Aircraft;
(viii) PROCESS AGENT. A letter from the
process agent appointed by Lessee in this Agreement
accepting that appointment;
(ix) CERTIFICATE. A certificate of the
Secretary or an Assistant Secretary of Lessee:
(a) Setting out a specimen of each
signature referred to in Section 3.1(a)(ii); and
(b) Certifying that each copy of a
document specified in this Section is correct, complete and
in full force and effect;
(x) GENERAL. Such other documents as Lessor
may reasonably request;
(b) The receipt by Lessor on or before the Delivery
Date of:
(i) OPINIONS. A signed original of each of
the opinions referred to in Sections 3.1(a)(iii) and (iv);
(ii) PAYMENTS. All sums due to Lessor under
this Agreement on or before the Delivery Date, including,
without limitation, the first payment of Rent;
(iii) INSURANCE. Certified copies of all
policies of insurance, and other evidence satisfactory to
Lessor that Lessee has complied with the provisions of this
Agreement as to Insurance effective on and after the
Delivery Date;
(iv) FINANCIAL STATEMENTS. The latest
available financial statements of Lessee as described in
Sections 8.2(b)(i) and (ii);
(v) DOCUMENTS. A confirmation of receipt of
the Aircraft Documents delivered with the Aircraft on the
Delivery Date;
(vi) GENERAL. Such other documents as Lessor
may reasonably request;
<PAGE>
(c) Receipt by Lessor of such information and
documents relating to the proposed Maintenance Program as Lessor
may reasonably require and Lessor having agreed the proposed
Maintenance Program on or prior to the Delivery Date; and
(d) Evidence that on the Delivery Date (i) the
Financing Statements have been duly filed and that all filings,
registrations, recordings and other actions have been or will be
taken which are necessary or advisable to ensure the validity,
effectiveness and enforceability of this Agreement and to protect
the property rights of Lessor in the Aircraft or any Part, and
(ii) a Lease Supplement, substantially in the form set forth in
Schedule 3, Part 1, hereof has been filed, along with this Lease,
with the FAA's aircraft registry in Oklahoma City, Oklahoma.
3.2 FURTHER CONDITIONS PRECEDENT. The obligations of
Lessor to deliver and lease the Aircraft under this Agreement are
subject to the further conditions precedent that:
(a) The representations and warranties of Lessee under
Sections 2.1 and 2.2 are correct and remain correct on the
Delivery Date as if remade on delivery of the Aircraft under this
Agreement; and
(b) No Default has occurred and is continuing or might
result from the leasing of the Aircraft to Lessee under this
Agreement.
3.3 LESSEE'S CONDITIONS PRECEDENT. Lessee's obligation
lease the Aircraft from Lessor under this Agreement is subject to
the receipt by Lessee from Lessor on the Delivery Date of the
following, reasonably satisfactory in form and substance to
Lessee:
(a) ORGANIZATIONAL DOCUMENTS. A copy of the
organizational documents of Lessor, certified by the Secretary or
an Assistant Secretary of Lessor;
(b) RESOLUTIONS. A copy of resolutions of managers of
Lessor, approving the terms of, and the transactions contemplated
by, this Agreement, resolving that it enter into this Agreement,
and authorizing a specified person or persons to execute this
Agreement on its behalf;
(c) OPINION. A signed original of an opinion, dated
the Delivery Date, by independent legal counsel for Lessor, as to
the matters referred to in Sections 2.4(a), (b), (c), (e), (f),
(g) and, to the best knowledge of such counsel, (d) and (h), in
form and substance reasonably acceptable to Lessee;
<PAGE>
(d) APPROVALS. Each approval, license and consent
which may be required in relation to the performance by Lessor of
any of its obligations hereunder, if any;
(e) CERTIFICATE. A certificate of a Manager of
Lessor:
(i) Setting out a specimen of each signature
referred to in Section 3.3(b); and
(ii) Certifying that each copy of a document
specified in this Section is correct, complete and in full
force and effect;
(f) VALID REGISTRATION. Evidence that on the Delivery
date the Aircraft has been validly registered under the laws of
the State of Registration; and
(g) OFFICER'S CERTIFICATE. A certificate of an officer of
Lessor, certifying that:
(i) The representations and warranties of
Lessor under Section 2.4 are correct and
remain correct on delivery of the
Aircraft under this Agreement; and
(ii) No Default has occurred and is
continuing or might result from the
leasing of the Aircraft by Lessor under
this Agreement.
3.4 WAIVER. The conditions specified in Sections 3.1, 3.2
and 3.3 are for the sole benefit of Lessor or Lessee, as the case
may be, and may be waived in whole or in part and with or without
conditions by Lessor or Lessee, as the case may be. If any of
those conditions are not satisfied on the Delivery Date and
Lessor (in its absolute discretion) nonetheless agrees to deliver
the Aircraft to Lessee, or Lessee (in its absolute discretion)
nonetheless agrees to accept the Aircraft, Lessor or Lessee, as
the case may be, will ensure that those conditions are satisfied
within fifteen (15) days after the Delivery Date and Lessor or
Lessee may treat as an Event of Default the failure of Lessee or
Lessor to do so.
4. COMMENCEMENT
4.1 LEASING. Lessor will lease the Aircraft to Lessee, and
Lessee will lease the Aircraft from Lessor, in accordance with
this Agreement for the duration of the Term. Lessor will tender
the Aircraft in the condition required under Schedule 1 for
acceptance on or about September 15, 1997 or such other day as
may be agreed.
<PAGE>
4.2 ACCEPTANCE AND DELIVERY.
(a) On or about September 15, 1997 Lessor shall give
Lessee written notice that the Aircraft is available for
inspection at the Acceptance Location. Within three (3) Business
Days thereafter, Lessee will inspect the Aircraft at such
location. Lessee's inspection shall be long enough to permit
Lessee to: (i) inspect the Aircraft Documents; (ii) inspect the
Aircraft; and (c) inspect the Engines, including without
limitation, to conduct, at Lessee's expense, a complete boroscope
inspection which covers both hot and cold sections and a power
assurance run; provided, however, that such inspection will not
exceed three (3) consecutive days. Such inspection shall also
include a demonstration flight, at Lessor's cost and expense, of
up to two (2) hours in duration in accordance with Boeing
standard flight operation check procedures, during which Lessee
shall be entitled to have up to four (4) representatives on board
the Aircraft. Lessor will maintain all insurance and assume full
responsibility for loss or damage during such demonstration
flight (unless such loss or damage is caused by the willful
misconduct or gross negligence of Lessee or its representatives),
and Lessor's pilot shall be the pilot-in-command for such flight,
unless otherwise agreed by Lessor and Lessee. Except as
otherwise provided herein, all other costs and expenses
associated with Lessee's inspection will be the responsibility of
Lessee.
(b) The Aircraft will be tendered for delivery to
Lessee in the condition described in Schedule 1 at the Acceptance
Location; provided, however, that Lessor and Lessee may agree
that the demonstration flight shall terminate at Kansas City,
Missouri, in which event the Acceptance Location shall also be
the Delivery Location. Lessee will effect acceptance of the
Aircraft, if delivered in the condition described in Schedule 1,
by execution and delivery of a Certificate of Acceptance in the
form of Schedule 2, upon the conclusion of Lessee's inspection.
In the event that the Aircraft is not in the condition specified
in Schedule 1 to this Agreement, Lessee will notify Lessor in
writing of those defects or deficiencies which cause the Aircraft
not to meet the delivery conditions set forth in Schedule 1, in
which event, Lessor shall, at its cost and expense, promptly
correct such defects or deficiencies and cause the Aircraft to
meet the delivery conditions set forth in Schedule 1 to this
Lease Agreement. If Lessor fails to cure such defects or
deficiencies and cause the Aircraft to meet the delivery
conditions set forth in Schedule 1 to this Lease, on or before
September 30, 1997 (other than by reason of a Default by Lessee),
Lessee may terminate this Agreement, and Lessor will promptly
refund to Lessee the amount of any and all Aircraft Deposits paid
under this Agreement.
<PAGE>
(c) Unless otherwise agreed pursuant to Subsection (b)
above, after acceptance by Lessee, the Aircraft will be delivered
to Lessee at the Delivery Location or such other location as may
be agreed by Lessor and Lessee in the same condition as the
Aircraft was in when accepted by Lessee, except for ferry time.
In the event the Aircraft is not in the same condition as the
Aircraft was in when accepted by Lessee, except ferry time,
Lessee will notify Lessor in writing of any defects and
deficiencies which cause the Aircraft not to be in the same
condition as when the Aircraft was accepted, and Lessor shall at
its sole cost and expense promptly correct such defects and
deficiencies. Lessor will acknowledge delivery of the Aircraft
in the required condition by execution and delivery to Lessor of
an Acknowledgement of Delivery in the form of Schedule 6.
(d) After delivery, the Aircraft and every Part will be
in every respect at the sole risk of Lessee, who will bear all
risk of loss, theft, damage or destruction to the Aircraft from
any cause whatsoever.
4.3 DELAYED DELIVERY. If, as a result of any Excusable
Delay, Lessor delays in the tender for acceptance of, or fails to
tender for acceptance, the Aircraft under this Agreement:
(i) Lessor will not be responsible for any
losses, including loss of profit, costs or expenses arising
from or in connection with the delay or failure suffered or
incurred by Lessee;
(ii) Lessee will not be entitled to terminate
this Agreement or to reject the Aircraft when tendered for
acceptance by Lessor in the condition required by the terms
of this Agreement, on the grounds of any such delay, unless
such delay or failure continues after December 1, 1997 or
unless mutually agreed by Lessor and Lessee; and
(iii) Upon any such termination, neither
Lessor nor Lessee will have any further obligation to the
other under this Agreement other than as expressly set out
in this Agreement, except that Lessor will refund to Lessee
the amount of any Aircraft Deposits paid under this
Agreement.
4.4 LICENSES. During the Term, Lessee will at its expense
obtain and maintain all licenses, permits and approvals, if any,
which may be necessary to transport the Aircraft from the
Delivery Location. Lessor will furnish such data and information
as may be reasonably requested by Lessee in connection with
obtaining any such license, permit or approval.
4.5 EXTENSION OPTION. Not Used.
<PAGE>
4.6 C CHECK OPTION. Provided that (x) no Default shall have
occurred and is continuing; and (y) there shall have been no
material adverse change in Lessee's financial condition since the
Delivery Date, Lessee shall have the option (the "C Check
Option") to extend the Term for up to 2 months provided that such
extension of the Term is required by Lessee so as to enable
Lessee to perform the C Check required by paragraph 1 (e) of
Schedule 3 at the time at which such check would otherwise fall
to be performed pursuant to the Agreed Maintenance Program in the
absence of the requirement contained in such section. The
C Check Option shall be exercised, if at all, by Lessee deliver-
ing an irrevocable written notice (a "C Check Notice") to Lessor
not later than one hundred eighty (180) days prior to the New
Expiration Date (as defined below) proposed by Lessee which
notice shall state whether Lessee desires to extend the Term and
the proposed date of performance and completion of the
aforementioned C Check. Upon the receipt by Lessor of the C
Check Notice, (xx) Lessee shall be obliged to lease the Aircraft
from Lessor until the date (the "New Expiration Date") of
completion of the aforementioned C Check in accordance with the
terms and conditions of this Agreement; and (yy) the definition
of "Expiration Date" shall be deemed to have been amended so as
to refer to the New Expiration Date and the Aircraft shall be
redelivered to Lessor on that date (or, as may be applicable, any
other date contemplated by such definition) in accordance with
the terms and conditions of this Agreement.
5. PAYMENTS
5.1 AIRCRAFT DEPOSIT. In order to faithfully secure its
obligations hereunder, Lessee shall pay to Lessor an Aircraft
Deposit in the amount set forth in paragraph 1 of the Letter
Agreement in accordance with the schedule set forth in that
paragraph. Unless this Lease Agreement shall have been earlier
terminated pursuant to Section 13.2, and provided that no Default
shall have occurred and be continuing, the Aircraft Deposit shall
be returned by Lessor to Lessee in accordance with the terms of
paragraph 1 of the Letter Agreement. The Aircraft Deposit shall
also be refunded to Lessee in whole, without set off, in
accordance with the terms of Sections 4.2(b) and/or 4.3(ii) and
(iii).
5.2 RENTAL PERIODS. The Term will be divided into Rental
Periods. The first Rental Period will commence on the Delivery
Date and end on the last day of the calendar month during which
the Delivery Date occurs, with the Rent for such first Rental
Period and the last Rental Period to be prorated on a daily basis
to reflect the actual number of days in such initial and last
Rental Periods. The second and each subsequent Rental Period
will commence on the first day of each month next following the
last day of the previous Rental Period. Each Rental Period will
end on the last day of each month, except that if the last Rental
<PAGE>
Period would otherwise overrun the Expiration Date, it will end
on the Expiration Date.
5.3 RENT. Lessee will pay to Lessor or its order on each
Rent Date, Rent, in advance, in immediately available funds in
accordance with and in the amount set forth in paragraph 2 of
Letter Agreement. Payment must be initiated adequately in
advance of the Rent Date to ensure that Lessor receives
immediately available funds on the Rent Date. If a Rental Period
begins on a non-Business Day, the Rent payable in respect of that
Rental Period shall be paid on the Business Day immediately
preceding the date on which such Rental Period commences.
5.4 MAINTENANCE RESERVES.
(a) Amount. Lessee will also pay to Lessor Maintenance
Reserves in relation to each Rental Period (including without
limitation the last Rental Period of the Term) on the 10th day of
the month following the end of the preceding Rental Period as
follows:
(i) in respect of the Airframe, the amount
set forth in paragraph 3(i) of Letter Agreement in respect
of each Flight Hour or Cycle, whichever is higher, operated
by the Aircraft during that Rental Period ("Airframe
Maintenance Reserves");
(ii) in respect of each Engine, the amount
set forth in paragraph 3(ii) of Letter Agreement in respect
of each Flight Hour or Cycle, whichever is higher, operated
by that Engine during that Rental Period ("Engine
Refurbishment Maintenance Reserves");
(iii) in respect of the APU, the amount set
forth in paragraph 3(iii) of Letter Agreement in respect of
each Flight Hour or Cycle, whichever is higher, operated by
that APU during that Rental Period ("APU Refurbishment
Maintenance Reserves"); and
(iv) in respect of each Landing Gear, the
amount set forth in paragraph 3(iv) of Letter Agreement in
respect of each Flight Hour or Cycle, whichever is higher,
operated by that Landing Gear during that Rental Period
("Landing Gear Maintenance Reserves").
(b) ADJUSTMENT. Commencing on the first anniversary
of the Delivery Date, the rate of Maintenance Reserves may be
adjusted upwards annually by Lessor at a percentage rate per
annum not to exceed the percentage increase in the Consumer Price
Index for the Kansas City, Missouri Metropolitan Area since the
Delivery Date or the date of the last price adjustment under this
provision, if later. In addition, but not limited to the
<PAGE>
foregoing, Lessee acknowledges that the rates of Maintenance
Reserves currently provided for in this Agreement are based upon
the assumption the Agreed Maintenance Program for the Aircraft
during the Term will be the same as that in effect on the
Delivery Date. In the event that such assumption proves to be
incorrect at any time during the Term, Lessor and Lessee agree
that Lessor shall have the right, upon written notice to Lessee,
to adjust the rate of Maintenance Reserves so as to reasonably
account for the incorrectness of such assumption. In the event
that the Agreed Maintenance Program changes during the Term (any
such change to be in accordance with the relevant terms and
conditions of this Agreement), Lessor shall make the
aforementioned adjustment in the manner which Lessor determines,
in its reasonable discretion, is necessary to maintain the rates
of Maintenance Reserves at levels which accurately reflect the
costs associated with obtaining the maintenance services referred
to in Section 7.2 at prevailing industry rates. Each such notice
shall specify the revised rate of Maintenance Reserves and the
effective date of such revision. Lessee agrees to advise Lessor,
in writing, of any circumstances or events which would result in
the foregoing assumption becoming incorrect at any time during
the Term.
5.5 PAYMENTS. All payments by Lessee to Lessor under this
Agreement will be made on the due date in Dollars and in immedi-
ately available funds settled through the New York Clearing House
System by wire transfer to Norwest Bank Iowa, N.A. (Acct. No.
300-100-9852), ABA No. 073000228. Such account will be
established in such fashion as shall ensure that the Bank will be
paid automatically from such account any amounts owing to Bank in
respect of the Aircraft.
5.6 GROSS-UP.
(a) All payments by Lessee under or in connection with
this Agreement will be made without set-off or counterclaim, free
and clear of and without deduction for or on account of all Taxes
(other than Lessor Taxes and other than a violation of 7.1);
(b) All Taxes (other than Lessor Taxes) in respect of
payments under this Agreement shall be for the account of and
will be paid by Lessee for its own account prior to the date on
which penalties apply; and
(c) If Lessee is compelled by law to make payment
subject to any Tax (other than Lessor Taxes) and Lessor does not
actually receive for its own benefit on the due date a net amount
equal to the full amount provided for under this Agreement,
Lessee will pay all necessary additional amounts to ensure
receipt by Lessor of the full amount so provided for.
<PAGE>
5.7 TAXATION. Lessee will on demand pay and indemnify
Lessor against all Taxes (other than Lessor Taxes) levied or
imposed against or upon Lessor or Lessee and relating to or
attributable to Lessee, this Agreement or the Aircraft directly
or indirectly in connection with the importation, exportation,
registration, ownership, leasing, subleasing, delivery,
possession, use, operation, repair, maintenance, overhaul,
transportation, landing, storage, presence or redelivery of the
Aircraft or any part thereof or any rent, receipts, insurance
proceeds, income or other amounts arising therefrom.
5.8 VALUE ADDED TAX.
(a) For the purposes of this subsection:
(i) "VAT" means value added tax and any
sales or turnover tax or imposition of a like nature;
(ii) "supply" includes anything on which VAT
is chargeable;
(b) Lessee will pay to Lessor the amount of any VAT
chargeable in respect of any supply of goods or services for VAT
purposes under this Agreement (other than any Lessor Taxes); and
(c) Each amount stated as payable by Lessee under this
Agreement is exclusive of VAT (if any) and is accordingly to be
construed as a reference to that amount plus any VAT in respect
of it.
5.9 INFORMATION. If Lessee is required by any applicable
law, or by any third party, to deliver any report or return in
connection with any Taxes, Lessee will complete the same in a
manner satisfactory to Lessor and in particular will state
therein that Lessee is exclusively responsible for the use and
operation of the Aircraft and for any Taxes arising therefrom,
and Lessee will, on request supply a copy of the report or return
to Lessor.
5.10 TAXATION OF INDEMNITY PAYMENTS.
(a) If and to the extent that any sums payable to
Lessor by Lessee under this Agreement by way of indemnity are
insufficient, by reason of any Taxes (other than Lessor Taxes)
payable in respect of those sums, for Lessor to discharge the
corresponding liability to the relevant party (including any
taxation authority), or to reimburse Lessor for the cost incurred
by it to a third party (other than Lessor Taxes) (including any
taxation authority), Lessee will pay to Lessor such sum as will
after the tax liability has been fully satisfied leave Lessor
with the same amount as it would have been entitled to receive in
the absence of that liability together with interest on the
<PAGE>
amount of the deficit at the rate of interest stated in
Section 5.11 in respect of the period commencing on the date on
which the payment of taxation is finally due until payment by
Lessee (both before and after judgment); and
(b) If and to the extent that any sums constituting
(directly or indirectly) an indemnity to Lessor but paid by
Lessee to any person other than Lessor are treated as taxable in
the hands of Lessor (other than Lessor Taxes), Lessee will pay to
Lessor such sum as will after the tax liability has been fully
satisfied indemnify Lessor to the same extent as it would have
been indemnified in the absence of such liability together with
interest on the amount payable by Lessee under this subsection at
the rate of interest stated in Section 5.11 in respect of the
period commencing on the date on which the payment of taxation is
finally due until payment by Lessee (both before and after
judgment) provided however that Lessee will not be liable for any
Lessor Taxes incurred as a result of the payment of the Agreed
Value pursuant to Section 11.
5.11 DEFAULT INTEREST. If Lessee fails to pay any amount
payable under this Agreement on the due date, Lessee will pay on
demand from time to time to Lessor interest (both before and
after judgment) on that amount, from the due date to the date of
payment in full by Lessee to Lessor, at the rate calculated by
Lessor to be the Prime Rate plus five percent (5%) per annum.
All such interest will be compounded monthly and calculated on
the basis of the actual number of days elapsed and a 360 day
year.
5.12 CONTEST. Lessee may, at its own cost and expense,
either in its own name or in Lessor's name, contest the validity,
applicability or assessment of any Taxes by (i) resisting payment
thereof, (ii) paying same under protest, or (iii) using
reasonable efforts to obtain a refund thereof in appropriate
proceedings. If Lessee disputes the payment of any Taxes payable
by Lessor for which Lessee is responsible under this Agreement,
Lessor will take such action as Lessee may reasonably request, at
Lessee's expense, to contest that payment but will not be obliged
to take any such action:
(a) Which Lessor considers in its reasonable
discretion may materially prejudice it unless Lessee will have
provided security reasonably satisfactory to Lessor to cover the
liability for the Taxes; or
(b) Which Lessor considers does not have a reasonable
prospect of success; or
(c) For which Lessee has not made adequate provision
to the reasonable satisfaction of Lessor in respect of the
expense concerned.
<PAGE>
If Lessor shall obtain a refund of any amount paid by Lessee
pursuant to Sections 5.7, 5.8, 5.10, Lessor shall pay Lessee the
amount of such refund together with any interest actually
received by Lessor on account of such refund.
5.13 ABSOLUTE AND CONDITIONAL OBLIGATIONS OF LESSEE.
Lessee's obligations under this Agreement are absolute and
unconditional irrespective of any contingency whatsoever
including (but not limited to):
(a) Any right of set-off, counterclaim, recoupment,
defence or other right which either party to this Agreement may
have against the other;
(b) Any unavailability of the Aircraft for any reason
other than Lessor's failure to deliver the Aircraft in the
condition required under Schedule 1 and other than a breach by
Lessor of its covenant set forth in Section 7.1, including, but
not limited to, a requisition of the Aircraft or any prohibition
or interruption of or interference with or other restriction
against Lessee's use, operation or possession of the Aircraft;
(c) Any lack, invalidity of or defect in
airworthiness, merchantability, fitness for any purpose,
condition, design, or operation of any kind or nature of the
Aircraft for any particular use or trade, or for registration or
documentation under the laws of any relevant jurisdiction, or any
Event of Loss in respect of or any damage to the Aircraft;
(d) Any insolvency, bankruptcy, reorganization,
arrangement, readjustment of debt, dissolution, liquidation or
similar proceedings by or against Lessor or Lessee;
(e) Any invalidity or unenforceability or lack of due
authorization of, or other defect in, this Agreement; and
(f) Any other cause which but for this provision would
or might otherwise have the effect of terminating or in any way
affecting any obligation of Lessee under this Agreement.
5.14 SECURITY.
(a) It is intended by Lessor and Lessee that the
Maintenance Reserves payable to Lessor pursuant to Section 5.4
and the Advance Rent payable to Lessor pursuant to paragraph 2 of
the Letter Agreement are amounts paid by Lessee to Lessor in
consideration for Lessor acquiring the Aircraft and removing the
Aircraft from the market, the use of the Aircraft by Lessee and
the satisfaction of Lessee's obligations under this Agreement and
that, once paid, those monies irrevocably and unconditionally
shall be the property of Lessor. Notwithstanding that stated
intent, if and to the extent that those monies or any thereof,
<PAGE>
under any applicable law or otherwise, are determined to be
security deposits or otherwise the property of Lessee or if it is
so determined those monies are a debt owed to Lessee or that
Lessee shall have any interest in those monies (the "Maintenance
Reserve Account"), the parties agree that subsections (c), (d)
and (e) below shall apply.
(b) It is further intended by Lessor and Lessee that
Aircraft Deposit payable by Lessee to Lessor pursuant to Section
5.1 and, if applicable, the Insurance Security Deposit
contemplated by the first paragraph of Schedule 4 (collectively
the "Deposits") are security deposits to faithfully secure the
satisfaction by Lessee of its obligations under the Agreement.
(c) To the fullest extent permitted by law and by way
of continuing security, Lessee grants to Lessor a security-interest
in the Maintenance Reserve Account, the Advance Rent and
the Deposits and all rights of Lessee to payment thereof, the
debt represented thereby and/or any and all interest of Lessee
therein to Lessor by way of first priority security interest as
security for Lessee's obligations and liabilities under this
Agreement and the Other Agreements (the "Secured Liabilities").
Except as expressly permitted under Section 7.2 of this
Agreement, Lessee will not be entitled to payment of the
Maintenance Reserve Account. Lessee will not assign, transfer or
otherwise dispose of all or part of its rights in the Maintenance
Reserve Account, the Advance Rent or the Deposits, and Lessee
agrees that it will enter into any additional documents and
instruments necessary or reasonably requested by Lessor to
evidence, create or perfect Lessor's rights to the Maintenance
Reserve Account, the Advance Rent and the Deposits.
(d) If Lessee fails to comply with any provision of
this Agreement or any Event of Default has occurred and is
continuing Lessor may immediately or at any time thereafter,
without prior notice to Lessee:
(i) Set-off all or any part of the Secured
Liabilities against the liabilities of Lessor in respect of
the Maintenance Reserve Account, the Advance Rent and/or the
Deposits;
(ii) Apply or appropriate the Maintenance
Reserve Account, the Advance Rent and/or the Deposits in or
towards the payment or discharge of the Secured Liabilities
in such order as Lessor sees fit; and
(e) If Lessor has exercised the set-off described in
sub-clause (d) above, Lessee shall, following a demand in writing
from Lessor, promptly restore the Maintenance Reserve Account,
the Advance Rent and/or the Deposits to the level at which they
stood immediately prior to such set-off.
<PAGE>
6. MANUFACTURER'S WARRANTIES
6.1 ASSIGNMENT. Notwithstanding this Agreement, Lessor
will remain entitled to the benefit of each warranty, express or
implied, with respect to the Aircraft, any Engine or Part so far
as concerns any manufacturer, vendor, subcontractor or supplier
or any seller from whom Lessor acquired the Aircraft. Except to
the extent Lessor otherwise directs, Lessor hereby authorizes
Lessee to pursue any claim against any manufacturer, vendor,
subcontractor or supplier (but not any seller of the Aircraft) in
relation to defects affecting the Aircraft, any Engine or Part
and Lessee agrees diligently to pursue any such claim which
arises at its own cost. Lessee will notify Lessor promptly upon
becoming aware of any such claim.
6.2 PROCEEDS. Except to the extent Lessor otherwise agrees
in a particular case, all proceeds of any such claim will be paid
directly to Lessor, except, but if and to the extent that such
claim relates:
(a) To defects affecting the Aircraft which Lessee has
rectified; or
(b) To compensation for loss of use of the Aircraft,
an Engine or any Part during the Term; and
provided no Default has occurred and is continuing the proceeds
will be paid to Lessee by Lessor but in the case of (a) only on
receipt of evidence satisfactory to Lessor that Lessee has
rectified the relevant defect.
6.3 PARTS. Except to the extent Lessor otherwise agrees in
a particular case, Lessee will procure all engines, components,
furnishings or equipment provided by the manufacturer, vendor,
subcontractor or supplier in replacement of a defective Engine or
Part pursuant to the terms of any warranty, all of which will be
installed promptly by Lessee such that title thereto free of
Security Interests vests in Lessor. On installation those items
will be deemed to be an Engine or Part as applicable.
6.4 AGREEMENT. To the extent any warranties relating to
the Aircraft are made available under an agreement between any
manufacturer, vendor, subcontractor or supplier and Lessee, this
Section 6 is subject to that agreement. However Lessee will:
(a) Pay the proceeds received by Lessee of any claim
thereunder to Lessor to be applied pursuant to Section 6.2 and
pending such payment will hold the claim and the proceeds on
trust for Lessor; and
<PAGE>
(b) Lessee will take all such steps as are necessary
at the end of the Term to ensure the benefit of any of those
warranties which have not expired are vested in Lessor.
7. LESSOR'S COVENANTS
7.1 QUIET ENJOYMENT. Lessor and any person lawfully acting
or claiming by or through Lessor will not interfere with the
quiet use, possession, operation and enjoyment of the Aircraft by
Lessee, but the exercise by Lessor of its rights under or in
connection with this Agreement will not constitute such an
interference.
7.2 MAINTENANCE CONTRIBUTION. Provided no Default has
occurred and is continuing, Lessor will pay promptly to third
party vendors, suppliers, maintenance shops, service facilities
or other contractors, by way of contribution to the cost of
maintenance of the Aircraft, upon submission by Lessee to Lessor
within six (6) months of the commencement of that maintenance and
before thirty (30) days after the Expiration Date of an invoice
and supporting documentation reasonably satisfactory to Lessor,
evidencing with respect to (x) the Airframe, any "D" or "Q"
check or any "C-1 through "heavy" C-7 plus SI" check, or (y) any
Engine or APU, the performance in accordance with this Agreement
of a Hot Section Refurbishment, a Cold Section Refurbishment
and/or the replacement of Life Limited Parts or (z) any Landing
Gear, work in the nature of overhaul requiring removal and
disassembly (in each case, other than (i) repairs arising as a
result of foreign object damage or operational or maintenance
mishandling; and/or (ii) removal, installation, maintenance and
repair of QEC (Quick Engine Change) kits; and/or (iii) air-
worthiness directives) the lesser of (a) the amount of that
invoice and (b) an amount equal to the aggregate amount of
Maintenance Reserves paid in respect of the Airframe, that Engine
or APU or that Landing Gear under this Agreement at the time of
commencement of such maintenance less the aggregate amount
previously paid in respect of the Airframe, that Engine or APU or
the Landing Gear by Lessor under this subsection.
7.3 LESSOR OBLIGATIONS FOLLOWING EXPIRATION DATE. Within
five (5) Business Days after:
(a) Redelivery of the Aircraft to Lessor in accordance
with and in the condition required by this Agreement; or
(b) Payment to Lessor of the Agreed Value following an
Event of Loss after the Delivery Date;
or in each case such later time as Lessor is satisfied Lessee has
irrevocably paid to Lessor all amounts which may then be out-
standing or become payable under this Agreement and provided that
<PAGE>
no Default shall have occurred and is continuing, Lessor will pay
to Lessee:
(i) the amount of any Rent received in
respect of any period falling after the date of redelivery
of the Aircraft or payment of the Agreed Value, as the case
may be; and
(ii) the Aircraft Deposit.
8. LESSEE'S COVENANTS
8.1 DURATION. The obligations in this Section and in
Section 12 will:
(a) Except as otherwise stated, be performed at the
expense of Lessee; and
(b) Remain in force until the Expiration Date in
accordance with this Agreement and thereafter to the extent of
any accrued rights of Lessor in relation to those obligations.
8.2 INFORMATION. Lessee will:
(a) Notify Lessor forthwith of the occurrence of any
Default or any other event which might adversely affect Lessee's
ability to perform any of its obligations under this Agreement;
(b) Furnish to Lessor:
(i) 45 days after the last day of each
fiscal quarter, the consolidated unaudited financial
statements of Lessee (comprising a balance sheet and profit
and loss statement) prepared for the most recent previous
month or fiscal quarter, certified by Lessee's chief
financial officer as being true and correct;
(ii) as soon as available but not in any
event later than one hundred twenty (120) days after the
last day of each fiscal year of Lessee, its audited
consolidated financial statements for the year ending on
such day;
(iii) at the same time the same are issued to
the shareholders or creditors of Lessee generally, a copy of
each report to or filing with the SEC; and
(iv) on request from time to time, such other
information relevant to the transactions contemplated by
this Agreement regarding Lessee and its business and affairs
as Lessor may reasonably request;
<PAGE>
(c) Keep Lessor informed as to current serial numbers
of the Engines and any engine installed on the Aircraft;
(d) Promptly furnish to Lessor all information Lessor
from time to time reasonably requests regarding the Aircraft, any
Engine or any Part, its use, location and condition including,
without limitation, the hours available on the Aircraft and any
Engine until the next scheduled check, inspection, overhaul or
shop visit, as the case may be;
(e) On request, within ten (10) days after such
request, furnish to Lessor evidence satisfactory to Lessor of
payment of all Taxes due during the Rental Period most recently
ended or any previous Rental Period the nonpayment of which could
give rise to the imposition of a Security Interest on the
Aircraft;
(f) On request, furnish to Lessor evidence satisfac-
tory to Lessor that all Taxes and charges incurred by Lessee with
respect to the Aircraft, including without limitation all
payments due to the relevant air traffic control authorities, the
nonpayment of which could give rise to the imposition of a
Security Interest on the Aircraft, have been paid and discharged
in full;
(g) Provide Lessor with a monthly report on the Flight
Hours and Cycles accumulated in respect of each Engine and APU
during the preceding month in the form required from time to time
by Lessor;
(h) Give Lessor not less than thirty (30) days'
written notice as to the time and location of all Major Checks;
and
(i) Promptly notify Lessor of:
(i) Any loss, theft, damage or destruction
to the Aircraft, any Engine or any Part, or any modification
to the Aircraft if the potential cost may exceed the Damage
Notification Threshold; and
(ii) Any occurrence reasonably likely to give
rise to a claim under the Insurance (but in the case of an
occurrence with respect to the hull, only claims in excess
of the Damage Notification Threshold) and details of any
negotiations with the insurance brokers over any such claim.
8.3 LAWFUL AND SAFE OPERATION. Lessee will:
(a) Comply with all laws in force in any country or
jurisdiction which may be applicable to the Aircraft or, so far
as concerns the use and operation of the Aircraft or an owner or
<PAGE>
operator thereof and take all reasonable steps to ensure that the
Aircraft is not used for any illegal purpose;
(b) Not use the Aircraft in any manner contrary to any
recommendation of the manufacturer of the Aircraft, any Engine or
any Part or any recommendation or regulation of the Air Authority
or for any purpose for which the Aircraft is not designed or
reasonably suitable;
(c) Ensure that the crew and engineers employed by it
in connection with the operation and maintenance of the Aircraft
have the qualifications and hold the licenses required by the Air
Authority and applicable law;
(d) Use the Aircraft solely in commercial or other
operations for which Lessee is duly authorized by the Air
Authority and applicable law;
(e) Not use the Aircraft for the carriage of:
(i) whole animals living or dead except in
the cargo compartments according to I.A.T.A. regulations,
and except domestic pet animals carried in a suitable
container to prevent the escape of any liquid and to ensure
the welfare of the animal;
(ii) acids, toxic chemicals, other corrosive
materials, explosives, nuclear fuels, nuclear wastes, or any
nuclear assemblies or components, except as permitted for
passenger aircraft under the "Restriction of Goods" schedule
issued by I.A.T.A. from time to time and provided that all
the requirements for packaging or otherwise contained
therein are fulfilled;
(iii) any other goods, materials or items of
cargo which could reasonably be expected to cause damage to
the Aircraft and which would not be adequately covered by
the Insurances; or
(iv) any illegal item or substance;
(f) Not utilize the Aircraft for purposes of training,
qualifying or reconfirming the status of cockpit personnel except
for the benefit of Lessee's cockpit personnel, and then only if
the use of the Aircraft for such purpose is not disproportionate
to the use for such purpose of other aircraft of the same type
operated by Lessee;
(g) Not cause or permit the Aircraft to proceed to, or
remain at, any location which is then the subject of a
prohibition order (or any similar order or directive), sanctions
or restrictions by:
<PAGE>
(i) the United Nations Security Council, the
U.S. International Economic Emergency Powers Act or U.N.
Security Council directives or the U.S. Export
Administration Act Regulations (15 C.F.R. Parts 730-799),
except as may be permitted by operating in accordance with
the conditions specified by the U.S. Export Administration
Regulations, General License GATS (15 C.F.R. Part 771.19);
(ii) any Government Entity of the State of
Registration or the Habitual Base;
(iii) any Government Entity of the country in
which such location is situated; or
(iv) any Government Entity having jurisdic-
tion over Lessor, the Banks or the Aircraft;
(h) Obtain and maintain in full force all certifi-
cates, licenses, permits and authorizations required for the use
and operation of the Aircraft for the time being, and for the
making of payments required by, and the compliance by Lessee with
its other obligations under, this Agreement;
(i) Not operate or locate the Aircraft or suffer or
permit the Aircraft to be operated or located during the Term in
any area excluded from coverage by any insurance policy issued
pursuant to the requirements of this Agreement; and
(j) Not operate or locate the Aircraft in, to or over
any country which is (x) the subject of sanctions under the U.S.
International Economic Emergency Powers Act or United Nations
Security Council Directives and/or (y) restricted under the
United States Trading with the Enemy Act or the United States
Export Administration Act except as may be permitted by operating
in accordance with the conditions specified by the United States
Export Administration Regulations, General License GATS (15 CFR
Part 771.19).
8.4 TAXES AND OTHER PAYMENTS. Lessee will promptly pay:
(a) All license and registration fees, Taxes (other
than Lessor Taxes) and other amounts of any nature imposed by any
Government Entity with respect to the Aircraft, including without
limitation the purchase, ownership, delivery, leasing, posses-
sion, use, operation, return, sale or other disposition of the
Aircraft; and
(b) All rent, fees, charges, Taxes (other than Lessor
Taxes) and other amounts in respect of any premises where the
Aircraft or any Part thereof is located from time to time;
<PAGE>
except to the extent that in the reasonable opinion of Lessor
such payment is being contested in good faith by appropriate
proceedings, in respect of which adequate reserves have been
provided by Lessee and non-payment of which does not give rise to
any material likelihood of the Aircraft or any interest therein
being sold, forfeited or otherwise lost or of criminal liability
on the part of Lessor or any Bank.
8.5 SUB-LEASING. LESSEE WILL NOT, WITHOUT THE PRIOR
WRITTEN CONSENT OF LESSOR, SUB-LEASE OR OTHERWISE PART WITH
POSSESSION OF THE AIRCRAFT, THE ENGINES OR ANY PART EXCEPT THAT
LESSEE MAY PART WITH POSSESSION (A) WITH RESPECT TO THE AIRCRAFT,
THE ENGINES OR ANY PART TO THE RELEVANT MANUFACTURERS FOR TESTING
OR SIMILAR PURPOSES OR TO THE AGREED MAINTENANCE PERFORMER FOR
SERVICE, REPAIR, MAINTENANCE OR OVERHAUL WORK, OR ALTERATIONS,
MODIFICATIONS OR ADDITIONS TO THE EXTENT REQUIRED OR PERMITTED BY
THIS AGREEMENT, AND (B) WITH RESPECT TO AN ENGINE OR PART, AS
EXPRESSLY PERMITTED BY THIS AGREEMENT.
8.6 INSPECTION.
(a) Lessor and any person designated by Lessor may at
any time visit, inspect and survey the Aircraft, any Engine or
any Part and for such purpose may, subject to any applicable Air
Authority regulation, travel on the flight deck as observer;
(b) Lessee will pay to Lessor on demand all reasonable
out-of-pocket expenses (but not including the salaries of
Lessor's employees) incurred by Lessor in connection with each
such visit, inspection or survey which takes place during the
continuance of a Default; and
(c) Lessor will have no duty or liability to make, or
arising out of any such visit, inspection or survey; and
(d) So long as no Default has occurred and is
continuing, Lessor will not exercise such right other than on
reasonable notice and during normal business hours and so as not
to disrupt unreasonably the commercial operations of Lessee.
8.7 OWNERSHIP; PROPERTY INTERESTS; RELATED MATTERS. Lessee
will:
(a) Not do or knowingly permit to be done or omit or
knowingly permit to be omitted to be done any act or thing which
might reasonably be expected to jeopardize the rights of Lessor
as owner and lessor of the Aircraft;
(b) On all occasions when the ownership of the
Aircraft, any Engine or any Part is relevant, make clear to third
parties that title is held by Lessor;
<PAGE>
(c) Not at any time (i) represent or hold out Lessor
or the Banks as carrying goods or passengers on the Aircraft or
as being in any way connected or associated with any operation or
carriage (whether for hire or reward or gratuitously) which may
be undertaken by Lessee or (ii) pledge the credit of Lessor or
the Banks;
(d) Ensure that there is always affixed, and not
removed or in any way obscured, a fireproof plate (having
dimensions of not less than 10 cm. x 7 cm.) in a reasonably
prominent position in the cockpit of the Aircraft adjacent to the
certificate of airworthiness and on each Engine stating:
"This Aircraft/Engine is owned by Interlease
Aviation Investors II, L.L.C. ("Interlease") and
is leased to Vanguard Airlines, Inc. and may not
be operated by any other person without the prior
written, consent of Interlease;"
(e) Not create or permit to exist any Security
Interest upon the Aircraft, any Engine or any Part;
(f) Not do or permit to be done anything which may
reasonably be expected to expose the Aircraft, any Engine or any
Part to penalty, forfeiture, impounding, detention, appropri-
ation, damage or destruction and without prejudice to the fore-
going, if any such penalty, forfeiture, impounding, detention or
appropriation, damage or destruction occurs, give Lessor notice
and use best endeavors to procure the immediate release of the
Aircraft, any Engine or the Part, as the case may be;
(g) Not abandon the Aircraft, the Engine or any Part;
(h) Pay and discharge or cause to be paid and dis-
charged when due and payable or make adequate provision by way of
security or otherwise for all debts, damages, claims and liabili-
ties which have given or might give rise to a Security Interest
over or affecting the Aircraft, any Engine or any Part; and
(i) Not attempt, or hold itself out as having any
power, to sell, lease or otherwise dispose of the Aircraft, any
Engine or any Part.
8.8 GENERAL. Lessee will:
(a) Not liquidate or dissolve and Lessee shall not
convey, transfer, lease or otherwise dispose of all or
substantially all of its property and other assets, whether in
one or series of related transactions;
(b) Not consolidate with or merge into, any other
corporation, except that:
<PAGE>
(i) Lessee may merge with or into any other
corporation for the sole purpose of reincorporating Lessee
in another state, provided that the surviving corporation
shall execute and deliver to Lessor an agreement by which
such survivor expressly assumes the due and punctual
performance of all of the covenants and conditions of this
Agreement; and
(ii) Lessee may merge with or into any other
corporation, provided that:
[A] the corporation formed by or
surviving such consolidation or merger (the "Successor
Entity"):
(1) shall be a corporation
organized and existing under the laws of the United
States of America or any state thereof;
(2) immediately after giving
effect to such transaction, shall be Lessee or shall
have acquired or succeeded to all or substantially all
of the property and other assets (including, without
limitation, all or substantially all of Lessee's
property and other assets) as an entity; and
(3) shall execute and deliver to
Lessor an agreement, in form and substance reasonably
satisfactory to Lessor, which is a legal, valid,
binding and enforceable assumption by such Successor
Entity of the due and punctual performance and
observance of each covenant and condition of this
Agreement and agreement to be bound thereby, and shall
execute, deliver and/or file such recordations and
filings with any Government Entity and such other
documents as Lessor shall reasonably deem to be
necessary or advisable (including, without limitation,
to preserve and protect the interests of Lessor) to
evidence, or in connection with, such consolidation,
merger,sale, lease, transfer or other disposition or
acquisition and an officer's certificate from a
responsible officer of the Successor Entity confirming
the legal, valid, binding and enforceable nature of
such assumption, and to the effect that the other
requirements of this paragraph have been satisfied, and
a legal opinion from counsel confirming the legal,
valid, binding and enforceable nature of such
assumption and otherwise in such form and substance
reasonably satisfactory to Lessor; and
<PAGE>
[B] prior to and immediately after giving
effect to such transaction, no Default or Event of Default
shall have occurred and be continuing.
No such permitted transaction involving a Successor Entity shall
relieve or release Lessee of or from any obligations hereunder
which arose or existed prior to such transaction. Promptly
following the closing of such transaction, Lessee shall provide
Lessor with a certificate signed by Lessee's chief financial
officer to the effect that such transaction, will not have a
material adverse effect on Lessee's ability to perform its
obligations under this Agreement;
(c) Use the Aircraft predominantly in the United
States and ensure that no change will occur in the Habitual Base
of the Aircraft without the prior written consent of Lessor.
Lessor agrees that it shall not withhold its consent to a change
in the Habitual Base to another state of the United States of
America if Lessee shall have provided Lessor with an opinion of
counsel practicing in the state of the United States of America
proposed by Lessee to be the Habitual Base in form and in
substance reasonably satisfactory to Lessor to the effect that
the rights and interests of Lessor are duly protected; and
(d) Not, without giving Lessor thirty (30) days prior
notice (in accordance with this Agreement), change its chief
executive office (as such term is defined in Article 9 of the
Uniform Commercial Code as in effect in the State of Missouri)
from 30 N.W. Rome Circle, Mezzanine Level, Kansas City
International Airport, Kansas City, Missouri 64153;
(e) remain a Certificated Air Carrier and maintain,
without limitation, its status so as to fall within the purview
of Section 1110 of Title 11 of the United States Code or any
analogous Statute; and
(f) remain a "citizen of the United States" as defined
in 49 U.S.C. Section 40102(15) of the Federal Aviation Act.
8.9 RECORDS. Lessee will:
(a) Cause accurate, complete and current records of
all flights made by, and all maintenance carried out on, the
Aircraft (including in relation to each Engine and Part subse-
quently installed, before the installation) to be kept; keep the
records in such manner as the Air Authority may from time to time
require, and ensure that they comply with the recommendations of
any manufacturers of the Aircraft, any Engine or any Part. The
records will form part of the Aircraft Documents; and
(b) Maintain its own or procure access to a revision
service in respect of, and will maintain with appropriate
<PAGE>
revisions, all Aircraft Documents, records, logs, and other
materials required by applicable laws and best practice of major
international air transport operators in respect of the Aircraft.
8.1 PROTECTION: Lessee will:
(a) Maintain the registration of the Aircraft with the
Air Authority in the name of Lessor and, to the extent permitted
under the laws of the State of Registration, reflecting the
interests of Lessor and not do or suffer to be done anything
which might adversely affect that registration; and
(b) Do all acts and things (including, without
limitation, making any filing or registration with the Air
Authority or any other Government Entity) and execute and
deliver, notarize, file, register and record all documents
(including, without limitation, any amendment of this Agreement,
other than an amendment which would alter any of the material
terms hereof in a manner adverse to Lessee) as may be required by
Lessor, which shall be at Lessor's cost with respect to item (i)
and at Lessee's cost with respect to items (ii) and (iii) below:
(i) following any change or proposed change
in the ownership or financing of the Aircraft or in the
manner of securing Lessor's obligations to the Banks; or
(ii) following any modification of the
Aircraft, any Engine or any Part or the permanent
replacement of any Engine or Part in accordance with this
Agreement, so as to ensure that the rights of Lessor as
owner and lessor of the Aircraft and under this Agreement
apply with the same effect as before; or
(iii) to establish, maintain, preserve,
perfect and protect the rights of Lessor under this
Agreement or the interest of Lessor as owner of the
Aircraft.
8.11 MAINTENANCE AND REPAIR. Lessee will:
(a) Keep the Aircraft airworthy in all respects and in
good repair and condition;
(b) Not change the Agreed Maintenance Program or the
schedule of the Agreed Maintenance Program without the written
consent of Lessor;
(c) Maintain the Aircraft in accordance with the
Agreed Maintenance Program through the Agreed Maintenance
Performer and perform (at the respective intervals provided in
the Agreed Maintenance Program) all Major Checks;
<PAGE>
(d) Maintain the Aircraft in accordance with FAA
Federal Air Regulations Part 121 and any other rules and regula-
tions of the FAA as may be applicable to passenger category
aircraft and in at least the same manner and with at least the
same care, including, without limitation, maintenance scheduling,
modification status and technical condition, as is the case with
respect to similar aircraft owned or otherwise operated by Lessee
including, without limitation, all maintenance to the Airframe,
any Engine or any Part required to maintain all warranties, per-
formance guarantees or service life policies in full force and
effect and will not discriminate in the care, scheduling, scope,
status or technical condition of maintenance of the Aircraft as
compared with other aircraft included in Lessee's fleet of Boeing
737 Aircraft;
(e) Comply with all mandatory inspection and modifi-
cation requirements, airworthiness directives and similar
requirements applicable to the Aircraft, any Engine or Part
having a compliance date during the Term or within sixty (60)
days after the Expiration Date and which are required by the Air
Authority (each of the foregoing being hereinafter referred to as
a "Relevant AD").
The cost of compliance with any single Relevant AD
shall be allocated among Lessor and Lessee as follows:
(i) Lessee shall be responsible for the first
$200,000 of such cost;
(ii) Lessor and Lessee shall share, on an equal
basis, the portion of such cost (if any) which exceeds
$200,000 up to and including $350,000; and
(iii) Lessor shall be wholly responsible for the
portion of such cost (if any) which exceeds $350,000
(subject always to the provisions of the following
paragraph.
Notwithstanding the foregoing, in the event that the
total cost of any single Relevant AD (such total cost to be
mutually agreed, in good faith, between Lessor and Lessee)
exceeds $350,000 (the "Threshold Amount"), Lessor may elect not
to make its contribution to the cost of compliance with such
Relevant AD as described in (iii) above. If Lessor shall so
elect, Lessee shall be entitled, by giving prior written notice
to Lessor, to terminate this Agreement and redeliver the Aircraft
to Lessor in accordance with the terms of Sections 12.1 through
12.8 and Schedule 3 (except for compliance with the Relevant AD
which gave rise to such termination) on the earlier of (x) the
date which is 30 days after the date of such notice from Lessee
to Lessor or (y) the date on which the Aircraft is required to be
removed from service by reason of non-compliance with the
<PAGE>
applicable Relevant AD. Such notice shall specify the proposed
redelivery date of the Aircraft by Lessee and, upon the receipt
of such notice by Lessor, the then current definition of
Expiration Date shall be deemed to have been amended accordingly.
Upon any termination of this Agreement pursuant to this Section
8.11(e), neither party shall be under any further obligation in
the other hereunder except for (x) accrued obligations of Lessee
hereunder; and (y) obligations hereunder which are expressed to
continue notwithstanding the expiration of the Term; provided,
however, that Lessor shall, if applicable having regard to the
provisions of Section 7.3, make the payments described in Section
7.3(b) but shall be under no obligation to repay, rebate or
otherwise refund any Maintenance Reserves previously paid by
Lessee under this Agreement.
(f) Comply with all applicable laws and the regula-
tions of the Air Authority and other aviation authorities with
jurisdiction over Lessee or the Aircraft, any Engine or Part
regardless of upon whom such requirements are imposed and which
relate to the maintenance, condition, use or operation of the
Aircraft or require any modification or alteration to the
Aircraft, any Engine or Part;
(g) Maintain in good standing a current certificate of
airworthiness (in the appropriate category for the nature of the
operations of the Aircraft) for the Aircraft issued by the Air
Authority except where (i) the Aircraft is undergoing
maintenance, modification or repair required or permitted by this
Agreement or (ii) the Aircraft's Certificate of Airworthiness is
withdrawn by the Air Authority for all Aircraft of the same model
as the Aircraft, and will from time to time provide to Lessor a
copy of such certificate of airworthiness on request;
(h) If required by the Air Authority, maintain a
current certification as to maintenance issued by or on behalf of
the Air Authority in respect of the Aircraft and will from time
to time provide to Lessor a copy on request; and
(i) Procure promptly the replacement of any Engine or
Part which has become time, cycle or calendar expired, lost,
stolen, seized, confiscated, destroyed, damaged beyond repair,
unserviceable or permanently rendered unfit for use, with an
engine or part complying with the conditions set out in
Section 8.13(a).
8.12 REMOVAL OF ENGINES AND PARTS. Lessee will ensure that
no Engine or Part installed on the Aircraft is at any time
removed from the Aircraft other than:
(a) If replaced as expressly permitted by this
Agreement; or
<PAGE>
(b) If the removal is of an obsolete item and is in
accordance with the Agreed Maintenance Program; or
(c) (i) during the course of maintaining,
servicing, repairing, overhauling or testing that Engine or
the Aircraft, as the case may be; or
(ii) as part of a normal engine or part
rotation program; or
(iii) for the purpose of making such modifi-
cations to the Engine or the Aircraft, as the case may be,
as are permitted under this Agreement;
and then in each case only if it is reinstalled or replaced
by an engine or part complying with Section 8.13(a) as soon
as practicable and in any event no later than the Expiration
Date.
8.13 INSTALLATION OF ENGINES AND PARTS. Lessee will:
(a) Ensure that, except as permitted by this Agree-
ment, no engine or part is installed on the Aircraft unless:
(i) in the case of an engine, it is an
engine of the same model as, or an improved or advanced
version of the Engine it replaces, which is in the same or
better operating condition, has substantially similar or
greater hours available until the next scheduled checks,
inspections, overhauls and shop visits (taking into account
for this purpose the hours available in respect of all
compressor and turbine discs) and has the same or greater
value and utility as the replaced Engine;
(ii) in the case of a part, it is in as good
operating condition, has substantially similar hours avail-
able until the next scheduled checks, inspections, overhauls
and shop visits, is of the same or a more advanced make and
model and is of the same interchangeable modification status
as the replaced Part;
(iii) in each case, it has become and remains
the property of Lessor free from Security Interests and on
installation on the Aircraft will without further act be
subject to this Agreement;
(iv) in each case, Lessee has sufficient
details as to its source and maintenance records to assure
compliance with applicable Air Authority requirements;;
<PAGE>
(b) If no Default has occurred which is continuing, be
entitled to install any engine or part on the Aircraft by way of
replacement notwithstanding Section 8.13(a) if:
(i) there is not available to Lessee at the
time and in the place that that engine or part is required
to be installed on the Aircraft, a replacement engine or, as
the case may be, part complying with the requirements of
Section 8.13(a);
(ii) it would result in an unreasonable
disruption of the operation of the Aircraft and/or the
business of Lessee to ground the Aircraft until an engine or
part, as the case may be, complying with Section 8.13(a)
becomes available for installation on the Aircraft; and
(iii) as soon as practicable after installa-
tion of the same on the Aircraft but, in any event, no later
than the Expiration Date, Lessee removes any such engine or
part and replaces it with the Engine or Part replaced by it
or by an engine or part, as the case may be, complying with
Section 8.13(a).
8.14 NON-INSTALLED ENGINES AND PARTS. Lessee will:
(a) Ensure that any Engine or Part which is not
installed on the Aircraft (or any other aircraft as permitted by
this Agreement) is, except as expressly permitted by this
Agreement, properly and safely stored, and kept free from
Security Interests;
(b) Notify Lessor whenever any Engine is removed from
the Aircraft and, from time to time, on request procure that any
person to whom possession of an Engine is given acknowledges in
writing to Lessor, in form and substance satisfactory to Lessor,
that it will respect the interests of Lessor and as owner of the
Engine and will not seek to exercise any rights whatsoever in
relation to it;
(c) Notwithstanding the foregoing provisions of this
subsection, be permitted, if no Default has occurred and is
continuing, to install any Engine or Part on an aircraft, or in
the case of a Part, an engine:
(i) owned and operated by Lessee free from
Security Interests; or
(ii) leased or hired to Lessee pursuant to a
lease or conditional sale agreement on a long-term basis and
on terms whereby Lessee has full operational control of that
aircraft or engine; or
<PAGE>
(iii) acquired by Lessee and/or financed or
refinanced, and operated by Lessee, on terms that ownership
of that aircraft or engine, as the case may be, pursuant to
a lease or conditional sale agreement, or a Security
Interest therein, is vested in or held by any other person;
provided that in the case of (ii) and (iii):
(1) the terms of any such lease,
conditional sale agreement or Security Interest will
not have the effect of prejudicing the interests of
Lessor as owner and lessor of that Engine or Part; and
(2) the lessor under such lease, the
seller under such conditional sale agreement or the
holder of such Security Interest, as the case may be,
has confirmed and acknowledged in writing to Lessor, in
form and substance satisfactory to Lessor, that it will
respect the interest of Lessor as owner and lessor of
that Engine or Part and that it will not seek to
exercise any rights whatsoever in relation thereto.
8.15 POOLING OF ENGINES AND PARTS. Lessee will not enter
into nor permit any pooling agreement or arrangement in respect
of an Engine or Part without the prior written consent of Lessor.
8.16 EQUIPMENT CHANGES.
(a) Lessee will not make any modification or addition
to the Aircraft (each an "Equipment Change"), except for an
Equipment Change which:
(i) is expressly permitted by this Agree-
ment, or
(ii) has the prior written approval of Lessor
and which does not diminish the value, utility, condition,
or airworthiness of the Aircraft; and
(b) So long as a Default has not occurred and is
continuing, Lessee may remove any Equipment Change if it can be
removed from the Aircraft without diminishing or impairing the
value, utility, condition or airworthiness of the Aircraft.
8.17 TITLE ON AN EQUIPMENT CHANGE.
(a) Title to all Engines and Parts installed on the
Aircraft whether by way of replacement, as the result of an
Equipment Change or otherwise (except those installed pursuant to
Section 8.13(b)) will on installation, without further act, vest
in Lessor subject to this Agreement free and clear of all
Security Interests. Lessee will at its own expense take all such
steps and execute, and procure the execution of, all such
<PAGE>
instruments as Lessor may require and which are necessary to
ensure that title so passes to Lessor according to all applicable
laws. At any time when requested by Lessor, Lessee will provide
evidence to Lessor's satisfaction (including the provision, if
required, to Lessor of one or more legal opinions) that title has
so passed to Lessor;
(b) Lessor may require Lessee to remove any Equipment
Change and to restore the Aircraft to its condition prior to that
Equipment Change at the end of the Term; and
(c) Except as referred to in Section 8.17(b) any
Engine or Part at any time removed from the Aircraft will remain
the property of Lessor until a replacement has been made in
accordance with this Agreement and until title in that replace-
ment has passed, according to applicable laws, to Lessor subject
to this Agreement free of all Security Interests whereupon title
to the replaced Engine or Part will pass to Lessee.
8.18 THIRD PARTY. Lessee will use its best efforts to
ensure that no person (other than Lessor or any Bank) will act in
any manner inconsistent with its obligations under this Agreement
and that all persons will comply with those obligations as if
references to "Lessee" included a separate reference to those
persons.
9. INSURANCE
9.1 INSURANCE. Lessee will maintain in full force during
the Term insurance in respect of the Aircraft in form and
substance satisfactory to Lessor (the "Insurance", which
expression includes, where the context so admits, any relevant
re-insurance(s)) through such brokers and with such insurers and
having such deductibles and being subject to such exclusions as
may be approved by Lessor. The Insurance will be effected
either: (a) on a direct basis with insurers of recognized
standing who normally participate in aviation insurance in the
leading international insurance markets and led by reputable
underwriter(s) approved by Lessor; or (b) with a single insurer
or group of insurers approved by Lessor who does not retain the
risk but effects substantial reinsurance with reinsurers in the
leading international insurance markets and through brokers each
of recognized standing and acceptable to Lessor for a percentage
acceptable to Lessor of all risks insured (the "Reinsurance").
9.2 REQUIREMENTS. Lessor's current requirements as to
required Insurance are as specified in this Section and in
Schedule 4. Lessor may from time to time stipulate other
requirements for the Insurance so that the scope and level of
cover is maintained in line with best industry practice and the
interests of Lessor protected.
<PAGE>
9.3 CHANGE. If at any time Lessor reasonably determines
that it is necessary to revoke its approval of any insurer,
reinsurer, insurance or reinsurance, Lessor and/or its brokers,
in order to protect the interests of the parties insured, Lessor
will first consult with Lessee and Lessee's brokers (as for the
time being approved by Lessor) regarding whether that approval
should be revoked to protect the interests of the parties
insured. If, following the consultation, Lessor reasonably
determines that any change should be made to protect the
interests of the Lessor and the parties insured, Lessee will then
arrange or procure the arrangement of alternative cover
satisfactory to Lessor.
9.4 INSURANCE COVENANTS. Lessee will:
(a) Ensure that all legal requirements as to insurance
of the Aircraft, any Engine or any Part which may from time to
time be imposed by the laws of the State of Registration or any
state which can assert jurisdiction over the Lessee, its business
or the Aircraft, in so far as they affect or concern the
operation of the Aircraft, are complied with and in particular
those requirements compliance with which is necessary to ensure
that (i) the Aircraft is not in danger of detention or
forfeiture, (ii) the Insurance remain valid and in full force and
effect, and (iii) the interests of the Indemnitees in the
Insurance and the Aircraft or any Part are not thereby
prejudiced;
(b) Not use, cause or permit the Aircraft, any Engine
or any Part to be used for any purpose or in any manner not
covered by the Insurance or outside any geographical limit
imposed by the Insurance;
(c) Comply with the terms and conditions of each
policy of the Insurance and not do, consent or agree to any act
or omission which:
(i) invalidates or may invalidate the
Insurance; or
(ii) renders or may render void or voidable
the whole or any part of any of the Insurance; or
(iii) brings any particular liability within
the scope of an exclusion or exception to the Insurance;
(d) Not take out without the prior written approval of
Lessor any insurance or reinsurance in respect of the Aircraft
other than those required under this Agreement unless relating
solely to hull total loss, business interruption, profit
commission and deductible risk;
<PAGE>
(e) Commence renewal procedures within a reasonable
period prior to expiration of any of the Insurance and provide to
Lessor:
(i) if requested by Lessor, a written status
report of renewal negotiation 14 days prior to each
expiration date;
(ii) facsimiled confirmation of completion of
renewal prior to each expiration date;
(iii) certificates of insurance and broker's
(and any reinsurance brokers') letter of undertaking in a
form acceptable to Lessor, detailing the coverage and
confirming the insurers' (and any reinsurers') agreement to
the specified insurance requirements of this Agreement
within seven (7) days after each renewal date;
(f) On request, provide to Lessor copies of documents
evidencing the Insurance;
(g) On request, provide to Lessor evidence that the
Insurance premiums have been paid;
(h) Not make any modification or alteration to the
Insurance material and adverse to the interests of any of the
Indemnitees;
(i) Be responsible for any deductible under the
Insurance; and
(j) Provide any other insurance and reinsurance
related information, or assistance, in respect of the Insurance
as Lessor may reasonably require.
9.5 FAILURE TO INSURE. If Lessee fails to maintain the
Insurance in compliance with this Agreement, each of the
Indemnitees will be entitled but not bound (without prejudice to
any other rights of Lessor under this Agreement):
(a) To pay the premiums due or to effect and maintain
insurance satisfactory to it or otherwise remedy Lessee's failure
in such manner (including, without limitation to effect and
maintain an "owner's interest" policy) as it considers
appropriate. Any sums so expended by it will become immediately
due and payable by Lessee to Lessor together with interest
thereon at the rate specified in Section 5.11, from the date of
expenditure by it up to the date of reimbursement by Lessee; and
(b) At any time while such failure is continuing to
require the Aircraft to remain at any airport or to proceed to
<PAGE>
and remain at any airport designated by it until the failure is
remedied to its satisfaction.
9.6 CONTINUING INDEMNITY. Lessor may require Lessee to
effect and to maintain insurance after the Expiration Date with
respect to its liability under the indemnities in Section 10 for
such period as Lessor may reasonably require (but in any event
not more than three (3) years) which provides for each Indemnitee
to be named as additional insured. Lessee's obligation in this
Section shall not be affected by Lessee ceasing to be lessee of
the Aircraft and/or any of the Indemnitees ceasing to have any
interest in respect of the Aircraft.
9.7 APPLICATION OF INSURANCE PROCEEDS. As between Lessor
and Lessee:
(a) All insurance payments received as the result of
an Event of Loss occurring during the Term will be paid to
Lessor, and Lessor will pay the balance of those amounts to
Lessee after deduction of all amounts which may be or become
payable by Lessee to Lessor under this Agreement (including under
Section 11.1(b));
(b) All insurance proceeds of any property damage or
loss to the Aircraft, any Engine or any Part occurring during the
Term not constituting an Event of Loss and in excess of the
Damage Notification Threshold will be paid to Lessor and applied
in payment (or to reimburse Lessee) for repairs or replacement
property upon Lessor being satisfied that the repairs or replace-
ment have been effected in accordance with this Agreement.
Insurance proceeds in amounts below the Damage Notification
Threshold may be paid by the insurer directly to Lessee. Any
balance remaining may be retained by Lessor;
(c) All insurance proceeds in respect of third party
liability will, except to the extent paid by the insurers to the
relevant third party, be paid to Lessor to be paid directly in
satisfaction of the relevant liability or to Lessee in reimburse-
ment of any payment so made; and
(d) Notwithstanding Sections 9.7(a), (b) or (c), if at
the time of the payment of any such insurance proceeds a Default
has occurred and is continuing, all such proceeds will be paid to
or retained by Lessor to be applied toward payment of any amounts
which may be or become payable by Lessee in such order as Lessor
sees fit or as Lessor may elect.
10. INDEMNITY
10.1 GENERAL. Lessee agrees to assume liability for,
defend, indemnify and hold harmless the Indemnitees on an after
tax basis from and against any and all claims, proceedings,
<PAGE>
losses, liabilities, damages (whether direct, indirect, special,
incidental or consequential) suits, judgments, costs, expenses
(including, without limitation, reasonable legal fees and
expenses), penalties (whether civil or criminal) or fines (each a
"Claim") (regardless of when the same is made or incurred,
whether during or after the Term):
(a) Which may at any time be suffered or incurred
directly or indirectly as a result of or in any manner connected
with the possession, delivery, performance, management, owner-
ship, registration, control, maintenance, condition, service,
repair, overhaul, leasing, use, operation or return of the
Aircraft, any Engine or Part (either in the air or on the
ground), whether or not the Claim may be attributable to any
defect in the Aircraft, any Engine or any Part or to its design,
testing or use or otherwise, and regardless of when the same
arises or whether it arises out of or is attributable to any act
or omission, negligent or otherwise, of any Indemnitee except as
otherwise provided herein; or
(b) Which arise out of any act or omission which
invalidates or which renders voidable any of the Insurance; or
(c) Which may at any time be suffered or incurred as a
consequence of any design, article or material in the Aircraft,
any Engine or any Part or its operation or use constituting an
infringement of patent, copyright, trademark, design or other
proprietary right or a breach of any obligation of confidenti-
ality owed to any person; or
(d) Which results from Lessee's breach of any of its
representations or warranties or any other Event of Default under
this Agreement;
but excluding any Claim in relation to a particular Indemnitee to
the extent that that Claim is covered pursuant to another indem-
nity provision of this Agreement or to the extent it arises as a
result of the gross negligence or wilful misconduct of that
Indemnitee, Lessor, Lessor Taxes or a Lessor Lien, or to the
extent it arises out of facts or circumstances occurring after
the Expiration Date, where such facts or circumstances do not
result from acts or omissions of Lessee.
10.2 DURATION. The indemnities contained in this Agreement
will continue in full force after the Expiration Date.
10.3 SUBROGATION. Lessee shall be subrogated to an
Indemnitee's rights to any matter with respect to which Lessee
has reimbursed such Indemnitee for amounts expended or incurred
by it or has paid such amount directly pursuant to Section 10.1.
<PAGE>
10.4 NOTICE AND COOPERATION. In case any action, suit or
proceeding is brought against an Indemnitee in connection with
any Claim indemnified against under this Agreement, such
Indemnitee will, promptly after receipt of notice of such action,
suit or proceeding, notify Lessee thereof, enclosing a copy of
all papers served upon such Indemnitee. Lessee may resist or
defend such action, suit or proceeding. The Indemnitee shall
take all actions reasonably requested by Lessee, at Lessee's cost
and expense, in connection with Lessee's defense or resistance of
such action, suit or proceeding.
11. EVENTS OF LOSS
11.1 EVENTS OF LOSS.
(a) If an Event of Loss occurs prior to delivery of
the Aircraft to Lessee, this Agreement will immediately terminate
and, except as expressly stated in this Agreement, neither party
will have any further obligation or liability under this
Agreement except that Lessor will refund to Lessee the amount of
any Aircraft Deposit paid under this Agreement; and
(b) If an Event of Loss occurs after delivery of the
Aircraft to Lessee, Lessee will pay the Agreed Value to Lessor on
or prior to the later of (i) five (5) Business Days after the
Event of Loss and (ii) the date of receipt of insurance proceeds
in respect of that Event of Loss. Subject to the rights of any
insurers and reinsurers or other third party, upon irrevocable
payment in full to Lessor of that amount and all other amounts
which may be or become payable to Lessor under this Agreement,
Lessor will without recourse or warranty (except as to Lessor's
Liens) and without further act, be deemed to have transferred to
Lessee all of Lessor's rights to Parts not installed when the
Event of Loss occurred, all on an as-is where-is basis, and will
at Lessee's expense, execute and deliver such bills of sale and
other documents and instruments as Lessee may reasonably request
to evidence (on the public record or otherwise) the transfer and
the vesting of Lessor's rights in such Parts in Lessee, free and
clear of all rights of Lessor and Lessor Liens.
11.2 REQUISITION. During any requisition for use or hire of
the Aircraft, any Engine or Part which does not constitute an
Event of Loss:
(a) The Rent, Maintenance Reserves and other charges
payable under this Agreement will not be suspended or abated
either in whole or in part, and Lessee will not be released from
any of its other obligations under the Agreement (other than
operational obligations with which Lessee is unable to comply
solely by virtue of the requisition); and
<PAGE>
(b) So long as no Default has occurred and is continu-
ing, Lessee will be entitled to any hire or other compensation
paid by the requisitioning authority in respect of the Term.
Lessee will, as soon as practicable after the end of any such
requisition, cause the Aircraft to be put into the condition
required by this Agreement. Lessor will be entitled to all
compensation payable by the requisitioning authority in respect
of any change in the structure, state or condition of the
Aircraft arising during the period of requisition, and Lessor
will apply such compensation in reimbursing Lessee for the cost
of complying with its obligations under this Agreement in respect
of any such change, but so that, if any Default has occurred and
is continuing, Lessor may apply the compensation or hire in or
towards settlement of any amounts owing by Lessee under this
Agreement.
12. RETURN OF AIRCRAFT.
12.1 RETURN. On the Expiration Date or earlier termination
of the lease of the Aircraft under this Agreement, unless an
Event of Loss has occurred, Lessee will, at its expense,
redeliver the Aircraft and Aircraft Documents to Lessor at the
Redelivery Location or such other airport as is mutually
acceptable to the parties hereto, in a condition complying with
Schedule 3, free and clear of all Security Interests and
Permitted Liens (other than Lessor Liens) and in a condition
qualifying for immediate certification of airworthiness by the
FAA or as otherwise agreed by Lessor and Lessee.
12.2 FINAL INSPECTION. Immediately prior to redelivery of
the Aircraft, Lessee will make the Aircraft available to Lessor
for inspection ("Final Inspection") in order to verify that the
condition of the Aircraft complies with this Agreement. The
Final Inspection will be long enough to permit Lessor to:
(a) Inspect the Aircraft Documents;
(b) Inspect the Aircraft and uninstalled Parts;
(c) Inspect the Engines, including without limitation
(i) at Lessor's expense, a video boroscope inspection of (A) the
low pressure and high pressure compressors and (B) turbine area
and (ii) at Lessee's expense, engine condition runs; and
(d) Observe a two (2) hour demonstration flight (with
Lessor's representatives as on-board observers).
Provided, however, that such Final Inspection will not exceed
three (3) consecutive days.
<PAGE>
12.3 NON-COMPLIANCE. To the extent that, at the time of
Final Inspection, the condition of the Aircraft does not comply
with this Agreement, Lessee will at Lessor's option:
(a) Immediately rectify the non-compliance and to the
extent the non-compliance extends beyond the Expiration Date, the
Term will be automatically extended and this Agreement will
remain in force until the non-compliance has been rectified; or
(b) Redeliver the Aircraft to Lessor and indemnify
Lessor, and provide to Lessor's satisfaction cash as security for
that indemnity, against the cost of putting the Aircraft into the
condition required by this Agreement.
12.4 REDELIVERY. Upon redelivery Lessee will provide to
Lessor all documents necessary to export the Aircraft from the
Habitual Base, if any, provided, however, that Lessee will not be
required to provide documents necessary to export the Aircraft to
a place outside the United States.
12.5 ACKNOWLEDGEMENT. Provided Lessee has complied with its
obligations under this Agreement, upon redelivery of the Aircraft
by Lessee to Lessor at the Redelivery Location, Lessor will
deliver to Lessee an acknowledgement confirming that Lessee has
redelivered the Aircraft to Lessor in accordance with this
Agreement.
12.6 MAINTENANCE PROGRAM.
(a) Prior to the Expiration Date and upon Lessor's
request, Lessee will provide Lessor or its agent reasonable
access to the Agreed Maintenance Program and the Aircraft
Documents in order to facilitate the Aircraft's integration into
any subsequent operator's fleet;
(b) Lessee will, if requested by Lessor to do so, upon
return of the Aircraft, deliver to Lessor a certified true cur-
rent and complete copy of the Agreed Maintenance Program,
together with a letter authorizing Lessor to use such copy for
"bridging" purposes for the next lessee of the Aircraft. Lessor
agrees that it will not disclose the contents of the Agreed
Maintenance Program to any person or entity except to the extent
necessary to monitor Lessee's compliance with this Agreement
and/or to bridge the maintenance program for the Aircraft from
the Agreed Maintenance Program to another program after the
Expiration Date; provided, however, that this will not give
Lessor or any third party any rights to use the Agreed
Maintenance Program.
12.7 FUEL. Upon redelivery of the Aircraft to Lessor, an
adjustment will be made in respect of fuel on board on the
<PAGE>
Delivery Date and the Expiration Date at the price then
prevailing at the Habitual Base.
12.8 AIRCRAFT STORAGE. During the period of thirty (30)
days after the Expiration Date, Lessor shall have the right to
require Lessee to maintain, store and insure the Aircraft at a
location having a facility capable of performing required
maintenance of the Aircraft (to be mutually agreed by Lessor and
Lessee), at Lessor's sole cost and expense as provided below.
Any maintenance or insurance cost actually incurred or paid by
Lessee to any third party vendor in connection with the foregoing
shall be payable by Lessor at Lessee's direct cost without
"mark-up". No later than thirty (30) days prior to the
Expiration Date, Lessor shall advise Lessee as to whether Lessor
requires Lessee to provide the services contemplated by this
Section 12.8.
13. DEFAULT
13.1 EVENTS OF DEFAULT. Each of the following events or
conditions will constitute an Event of Default (whether any such
event or condition is voluntary or involuntary or occurs by
operation of law or pursuant to or in compliance with any
judgment, decree or order of any court or any order, rule or
regulation of any Government Entity):
(a) NON-PAYMENT. Lessee fails to make any payment
under this Agreement on the due date and such failure continues
for five (5) Business Days; or
(b) INSURANCE. Lessee fails to comply with any
provision of Section 9 or any insurance required to be maintained
under this Agreement is cancelled or terminated or notice of
cancellation is given in respect of any such insurance and such
insurance is not renewed or replaced before cancellation or
termination; or
(c) BREACH. Lessee fails to comply with any other
provision of this Agreement and, if such failure is in the
reasonable opinion of Lessor capable of remedy, the failure
continues for fifteen (15) days after written notice from Lessor
to Lessee; or
(d) REPRESENTATION. Any material representation or
warranty made (or deemed to be repeated) by Lessee in or pursuant
to this Agreement or in any document or certificate or statement
is or proves to have been incorrect in any material respect when
made or deemed to be repeated; or
<PAGE>
(e) CROSS DEFAULT. Any other indebtedness of Lessee
in excess of $100,000 in the aggregate owing to Lessor, to Mimi
Leasing Corp. and/or to Interlease Aviation Investors III (TACA),
L.L.C. is not paid when due or Lessee has failed to comply with
any other provision of any of the Other Agreements (after notice
and the expiration of any applicable cure periods); or
(f) APPROVALS: Any consent, authorization, license,
certificate or approval of or registration with or declaration to
any Government Entity in connection with this Agreement
(including, without limitation):
(i) required by Lessee to authorize, or in
connection with, the execution, delivery, validity, enforce-
ability or admissibility in evidence of this Agreement or
the performance by Lessee of its obligations under this
Agreement; or
(ii) the registration of the Aircraft (to the
extent that the same is within the control of Lessee); or
(iii) Lessee's authority to operate the
Aircraft under Part 121 of the Federal Aviation Regulations
and Lessee's interstate Certificate of Convenience and
Necessity issued under Section 401 of the Federal Aviation
Act;
is modified in a manner unacceptable to Lessor or is withheld, or
is revoked, suspended, cancelled, withdrawn, terminated or not
renewed, or otherwise ceases to be in full force provided the
foregoing is not the result of any act, omission or breach of
Lessor; or
(g) BANKRUPTCY, ETC.
(i) Lessee consents to the appointment of a
custodian, receiver, trustee or liquidator of itself or all
or any material part of Lessee's property or Lessee's
consolidated property, or Lessee admits in writing its
inability to, or is unable to, or does not, pay its debts
generally as they come due, or makes a general assignment
for the benefit of creditors, or Lessee files a voluntary
petition in bankruptcy or a voluntary petition seeking
reorganization in a proceeding under any bankruptcy or
insolvency laws (as now or hereafter in effect), or an
answer admitting the material allegations of a petition
filed against Lessee in any such proceeding, or Lessee by
voluntary petition, answer or consent seeks relief under the
provisions of any other bankruptcy, insolvency or other
similar law providing for the reorganization or winding-up
of corporations, or provides for an agreement, composition,
extension or adjustment with its creditors, or any corporate
<PAGE>
action (including, without limitation, any board of
directors or shareholder action) is taken by Lessee in
furtherance of any of the foregoing, whether or not the same
is fully effected or accomplished; or
(ii) an order, judgment or decree is entered
by any court appointing, without the consent of Lessee, a
custodian, receiver, trustee or liquidator of Lessee, or of
all or any material part of Lessee's property or Lessee's
consolidated property is sequestered, and any such order,
judgment or decree of appointment or sequestration remains
in effect, undismissed, unstayed or unvacated for a period
of thirty (30) days after the date of entry thereof or at
any time an order for relief is granted; or
(iii) an involuntary petition against Lessee
in a proceeding under the United States Federal Bankruptcy
laws or other insolvency laws (as now or hereafter in
effect) is filed and is not withdrawn or dismissed within
thirty (30) days thereafter or at any time an order for
relief is granted in such proceeding, or if, under the
provisions of any law providing for reorganization or
winding-up of corporations which may apply to Lessee, any
court of competent jurisdiction assumes jurisdiction over,
or custody or control of, Lessee or of all or any material
part of Lessee's property, or Lessee's consolidated property
and such jurisdiction, custody or control remains in effect,
unrelinquished, unstayed or unterminated for a period of
thirty (30) days or at any time an order for relief is
granted in such proceeding; or
(h) UNLAWFUL. It becomes unlawful for Lessee to
perform any of its obligations under this Agreement or this
Agreement becomes wholly or partly invalid or unenforceable; or
(i) SUSPENSION OF BUSINESS. Lessee or any of its
Subsidiaries suspends or ceases or threatens to suspend or cease
to carry on all or a substantial part of its business as a
Certificated Air Carrier for a period of more than seven (7)
days; or
(j) DISPOSAL. Except for a reorganization the terms
of which have received the previous consent in writing of Lessor,
Lessee or any of its Subsidiaries disposes, conveys or transfers
or threatens to dispose, convey or transfer of all or a material
part of its assets, liquidates or dissolves or consolidates or
merges with any other Person (other than a consolidation or
merger permitted by the terms of Section 8.8(b) above), whether
by one or a series of transactions, related or not.
<PAGE>
(k) RIGHTS. The existence, validity, enforceability
or priority of the rights of Lessor as owner and lessor in
respect of the Aircraft are challenged by Lessee or any other
person claiming by or through Lessee, except if such challenge is
in connection with a breach by Lessor of Section 7.1; or
(l) DELIVERY. Lessee fails to accept the Aircraft
when validly tendered for acceptance or delivery by Lessor in the
condition required by and pursuant to this Agreement.
13.2 RIGHTS. If an Event of Default occurs, Lessor may at
its option (and without prejudice to any of its other rights
under this Agreement), at any time thereafter (without notice to
Lessee except as required under applicable law):
(a) By written notice to Lessee and with immediate
effect, terminate this lease of the Aircraft (but without
prejudice to the continuing obligations of Lessee under this
Agreement), whereupon all rights of Lessee under this Agreement
shall cease; and/or
(b) Proceed by appropriate court action or actions to
enforce performance of this Agreement or to recover damages for
the breach of this Agreement; and/or
(c) Either:
(i) Take possession of the Aircraft, for
which purpose Lessor may enter any premises belonging to or
in the occupation of or under the control of Lessee where
the Aircraft may be located, or cause the Aircraft to be
redelivered to Lessor at Dubuque, Iowa (or such other
location in the continental U.S. as Lessor may require), and
Lessor is hereby irrevocably by way of security for Lessee's
obligations under this Agreement appointed attorney for
Lessee in causing the redelivery or in directing the pilots
of Lessee or other pilots to fly the Aircraft to that
airport and will have all the powers and authorizations
necessary for taking that action; or
(ii) By serving written notice require Lessee
to redeliver the Aircraft to Lessor at Dubuque, Iowa (or
such other location in the continental U.S. as Lessor may
require).
13.3 DEREGISTRATION. If an Event of Default occurs, Lessor
may sell or otherwise deal with the Aircraft free and clear of
any leasehold or other interest of Lessee as if this Agreement
had never been made and Lessee will, at the request and expense
of Lessor, take all steps necessary to effect (if applicable)
deregistration of the Aircraft and its export from the country
where the Aircraft is situated and any other steps necessary to
<PAGE>
enable the Aircraft to be delivered, at Lessor's option, outside
the United States; Lessee hereby irrevocably and by way of
security for its obligations under this Agreement appoints (which
appointment is coupled with an interest) Lessor as its attorney
to execute and deliver any documentation and to do any act or
thing required in connection with the foregoing.
13.4 DEFAULT PAYMENTS. If:
(a) An Event of Default occurs; or
(b) The Aircraft is not delivered on the proposed
Delivery Date by reason of failure of Lessee to satisfy any
conditions to that delivery and such failure is not the result of
Lessor's breach hereunder;
Lessee will indemnify Lessor on demand against any loss, damage,
expense, cost or liability which Lessor may sustain or incur
directly or indirectly as a result including but not limited to:
(a) Any amount of principal, interest, fees or other
sums whatsoever paid or payable on account of funds borrowed in
order to carry any unpaid amount;
(b) Any loss, premium, penalty or expense which may be
incurred in repaying funds raised to finance the Aircraft or in
unwinding any swap, forward interest rate agreement or other
financial instrument relating in whole or in part to Lessor's
financing of the Aircraft; and
(c) Any loss, cost, expense or liability sustained or
incurred by Lessor owing to Lessee's failure to redeliver the
Aircraft on the date, at the place and in the condition required
by this Agreement.
14. ASSIGNMENT
14.1 LESSEE WILL NOT ASSIGN, TRANSFER (VOLUNTARILY OR
INVOLUNTARILY BY OPERATION OF LAW OR OTHERWISE) OR CREATE OR
PERMIT TO EXIST ANY SECURITY INTEREST IN, TO OR UNDER, ANY OF ITS
RIGHTS UNDER THIS AGREEMENT.
14.2 Subject to Section 14.4, Lessor may assign or transfer
all of its rights under this Agreement and in the Aircraft,
provided that Lessor will in the case of an assignment other than
by way of security have no further obligation under this
Agreement following the assignment of all its rights under this
Agreement but notwithstanding that assignment will remain
entitled to the benefit of each indemnity and the liability
insurances effected under this Agreement; and provided that such
assignment, novation or transfer does not violate any provision
of the Federal Aviation Act or any rule or regulation thereunder,
<PAGE>
or prevent the continued U.S. registration of the Aircraft. Any
such assignment, transfer or novation will be subject to Lessee's
rights under this Agreement. Lessee will comply with all
reasonable requests of Lessor, its successors and assigns in
respect of any such assignment, and Lessor will promptly notify
Lessee of any such assignment.
14.3 If Lessor desires to effect any assignment or transfer
of its rights and obligations under this Agreement, Lessee agrees
to cooperate and take all such steps as Lessor may reasonably
request to give the transferee the benefit of this Agreement.
Any reasonable expenses incurred by Lessee directly as a result
of any assignment contemplated by Section 14.2 shall be advanced
by Lessor.
14.4 Any assignment, novation or transfer by Lessor will be
at Lessor's cost and expense and will not result in any increase
in Lessee's obligations hereunder in excess of those which would
exist in the absence of such assignment, novation or transfer.
15. ILLEGALITY
If it is or becomes unlawful in any jurisdiction for Lessor
to give effect to any of its obligations as contemplated by this
Agreement or to continue this Agreement Lessor may by notice in
writing to Lessee terminate the leasing of the Aircraft under
this Agreement and Lessee will forthwith redeliver the Aircraft
to Lessor in accordance with Section 12. Without prejudice to
the foregoing Lessor will consult in good faith with Lessee as to
any steps which may be taken to restructure the transaction to
avoid that unlawfulness but will be under no obligation to take
any such steps.
16. MISCELLANEOUS
16.1 WAIVERS, REMEDIES CUMULATIVE. The rights of each party
under this Agreement:
(a) May be exercised as often as necessary;
(b) Are cumulative and not exclusive of its rights
under any law; and
(c) May be waived only in writing and specifically.
Delay in exercising or non-exercise of any such right will not
constitute a waiver of that right.
16.2 DELEGATION. Lessor may delegate to any person or
persons all or any of the trusts, powers or discretions vested in
it by these presents and any such delegation may be made upon
such terms and conditions and subject to such regulations
<PAGE>
(including power to sub-delegate) as Lessor in its absolute
discretion thinks fit.
16.3 CERTIFICATES. Except where expressly provided in this
Agreement, any certificate or determination by Lessor as to any
rate of interest or as to any other amount payable under this
Agreement will, in the absence of error, be conclusive and
binding on Lessee.
16.4 APPROPRIATION. If any sum paid or recovered in respect
of the liabilities of Lessee under this Agreement is less than
the amount then due, Lessor may apply that sum to amounts due
under this Agreement in such proportions and order and generally
in such manner as Lessor may determine at its sole discretion.
16.5 INTENTIONALLY LEFT BLANK.
16.6 SET-OFF. Lessor may set off any matured obligation
owed by Lessee under this Agreement or the Other Agreements (to
the extent beneficially owned by Lessor) against any obligation
(whether or not matured) owed by Lessor to Lessee, regardless of
the place of payment or currency. If an obligation is
unascertained or unliquidated, Lessor may in good faith estimate
that obligation and set off in respect of the estimate, subject
to the relevant party accounting to the other when the obligation
is ascertained or liquidated. Lessor will not be obliged to pay
any amounts to Lessee under this Agreement so long as any sums
which are then due from Lessee under this Agreement or the Other
Agreements remain unpaid and any such amounts which would
otherwise be due will fall due only if and when Lessee has paid
all such sums except to the extent Lessor otherwise agrees or
sets off such amounts against such payment pursuant to the
foregoing.
16.7 SEVERABILITY. If a provision of this Agreement is or
becomes illegal, invalid or unenforceable in any jurisdiction,
that will not affect:
(a) The legality, validity or enforceability in that
jurisdiction of any other provision of this Agreement; or
(b) The legality, validity or enforceability in any
other jurisdiction of that or any other provision of this
Agreement.
16.8 REMEDY. If Lessee fails to comply with any provision
of this Agreement, Lessor may, without being in any way obliged
to do so or responsible for so doing and without prejudice to the
ability of Lessor to treat the non-compliance as a Default or an
Event of Default, effect compliance on behalf of Lessee, where-
upon Lessee shall become liable to pay immediately any sums
<PAGE>
expended by Lessor together with all costs and expenses
(including legal costs) in connection therewith.
In the event that Lessee obtains a judgment against
Lessor, Lessee will be entitled to receive all costs and expenses
(including legal costs) in connection therewith.
16.9 EXPENSES. Unless this Agreement is terminated by
reason of Lessor's failure to deliver the Aircraft to Lessee
through no breach or default of Lessee of the terms of this
Agreement, Lessee will pay to Lessor on demand, upon the
occurrence of a Default, all reasonable expenses (including
legal, survey and other costs) payable or incurred by Lessor in
contemplation of, or otherwise in connection with, the
enforcement of or preservation of any of Lessor's rights under
this Agreement, or in respect of the repossession of the
Aircraft.
All expenses payable pursuant to this Section 16.9 will be paid
as they are incurred by Lessor.
16.10 TIME OF ESSENCE. The time stipulated in this
Agreement for all payments payable by Lessee to Lessor and for
the performance of Lessee's other obligations under this
Agreement will be of the essence of this Agreement.
16.11 NOTICES. All notices under, or in connection
with, this Agreement will, unless otherwise stated, be given in
writing. Any such notice is deemed effectively to be given, if
by letter, by registered mail, return receipt requested, or by an
overnight courier which provides a receipt upon deposit with such
courier, when delivered.
The address of Lessee and Lessor are as follows:
Lessee: Vanguard Airlines, Inc.
30 N.W. Rome Circle - Mezzanine Level
Kansas City International Airport
Kansas City, Missouri 64153
Attn: Brian Gillman
Lessor: Interlease Aviation Investors II
(Aloha), L.L.C.
One Northfield Plaza
Suite 525
Northfield, Illinois 60093
Attn: Philip Coleman
<PAGE>
16.12 LAW AND JURISDICTION:
(a) THIS AGREEMENT IN ALL RESPECTS IS GOVERNED BY AND TO
BE INTERPRETED IN ACCORDANCE WITH LAWS OF THE STATE OF THE
GOVERNING LAW, WITHOUT REGARD TO ITS CONFLICTS OF LAW PRINCIPLES.
(b) For the benefit of Lessor, Lessee agrees that the
federal courts of the Northern District of Illinois, are to have
nonexclusive jurisdiction to settle any disputes in connection with
this Agreement and submits itself and its property to the
jurisdiction of the courts of the State of Illinois in connection
with this Agreement;
(c) Without prejudice to any other mode of service:
(i) Lessee appoints Prentice Hall as its agent
for service of process relating to any proceedings before the
Illinois courts in connection with this Agreement and agrees
to maintain the process agent in Illinois notified to Lessor;
(ii) Lessee agrees that failure by a process
agent to notify Lessee of the process shall not invalidate the
proceedings concerned;
(iii) Lessee consents to the service of process
relating to any such proceedings by prepaid mailing of a copy
of the process to Lessee's agent at the address identified in
paragraph (i);
(d) Lessee:
(i) waives objection to the federal courts in
the State of Illinois on grounds of inconvenient forum or
otherwise as regards proceedings in connection with this
Agreement; and
(ii) agrees that a judgment or order of a
federal court in the State of Illinois in connection with this
Agreement is conclusive and binding on it and may be enforced
against it in the courts of any other jurisdiction;
(e) Nothing in this Section limits the right of Lessor
to bring proceedings against Lessee in connection with this
Agreement:
(i) in any other court of competent
jurisdiction; or
(ii) concurrently in more than one
jurisdiction; and
(f) Lessee and Lessor irrevocably and unconditionally:
<PAGE>
(i) agrees that if the other party brings
legal proceedings against it or its assets in relation to this
Agreement no immunity from such legal proceedings (which will
be deemed to include without limitation, suit, attachment
prior to judgment, other attachment, the obtaining of
judgment, execution or other enforcement) will be claimed by
or on behalf of itself or with respect to its assets;
(ii) waives any such right of immunity which it
or its assets now has or may in the future acquire;
(iii) consents generally in respect of any such
proceedings to the giving of any relief or the issue of any
process in connection with such proceedings including, without
limitation, the making, enforcement or execution against any
property whatsoever (irrespective of its use or intended use)
of any order or judgment which may be made or given in such
proceedings.
16.13 ENTIRE AGREEMENT. This Agreement and the Letter
Agreement are the sole and entire agreement between Lessor and
Lessee in relation to the leasing of the Aircraft, and supersede
all previous agreements in relation to that leasing.
16.14 INDEMNITIES. All rights expressed to be granted to
each Indemnitee under this Agreement (other than Lessor) are given
to Lessor on behalf of that Indemnitee.
16.15 COUNTERPARTS. This Agreement may be executed in
counterparts each of which will constitute one and the same
document.
17. DISCLAIMERS AND WAIVERS
17.1 EXCLUSION. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED
HEREIN, THE AIRCRAFT IS DELIVERED "AS IS, WHERE IS" AND LESSEE
AGREES AND ACKNOWLEDGES THAT UPON ACCEPTANCE OF DELIVERY OF THE
AIRCRAFT BY LESSEE, SAVE AS EXPRESSLY STATED IN THIS AGREEMENT,
LESSOR WILL HAVE NO LIABILITY IN RELATION TO, AND LESSOR HAS NOT
AND WILL NOT BE DEEMED TO HAVE MADE OR GIVEN, ANY WARRANTIES OR
REPRESENTATIONS, EXPRESS OR IMPLIED, WITH RESPECT TO, THE AIRCRAFT,
INCLUDING BUT NOT LIMITED TO:
(a) THE DESCRIPTION, AIRWORTHINESS, MERCHANTABILITY,
FITNESS FOR ANY PARTICULAR USE OR PURPOSE, VALUE, CONDITION, OR
DESIGN, OF THE AIRCRAFT OR ANY PART; OR
(b) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN
TORT, WHETHER OR NOT ARISING FROM LESSOR'S NEGLIGENCE, ACTUAL OR
IMPUTED; OR
<PAGE>
(c) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY
FOR LOSS OF OR DAMAGE TO THE AIRCRAFT, FOR ANY LIABILITY OF LESSEE
TO ANY THIRD PARTY, OR FOR ANY OTHER DIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES.
17.2 WAIVER. LESSEE HEREBY WAIVES, AS BETWEEN ITSELF AND THE
LESSOR, ALL ITS RIGHTS IN RESPECT OF ANY WARRANTY OR
REPRESENTATION, EXPRESS OR IMPLIED, ON THE PART OF LESSOR AND ALL
CLAIMS AGAINST LESSOR HOWSOEVER AND WHENEVER ARISING AT ANY TIME IN
RESPECT OF OR OUT OF THE OPERATION OR PERFORMANCE OF THE AIRCRAFT
OR THIS AGREEMENT EXCEPT TO THE EXTENT ARISING UNDER SECTION 2.4.
17.3 CONFIRMATION. LESSEE CONFIRMS THAT IT IS FULLY AWARE OF
THE PROVISIONS OF THIS SECTION 17 AND ACKNOWLEDGES THAT RENT AND
OTHER AMOUNTS HAVE BEEN CALCULATED BASED ON ITS PROVISIONS.
18. SECTION 1110
Lessee acknowledges that Lessor would not have entered into
this Agreement unless it had available to it the benefits of a
lessor under Section 1110 of Title 11 of the United States Code.
Lessee covenants and agrees with Lessor that to better ensure the
availability of such benefits, Lessee shall support any motion,
petition or application filed by Lessor with any bankruptcy court
having jurisdiction over Lessee, whereby Lessor seeks recovery of
possession of the Aircraft under said Section 1110 and shall not in
any way oppose such action by Lessor unless Lessee shall have
complied with the requirements of said Section 1110 to be fulfilled
in order to entitle Lessee to continued use and possession of the
Aircraft hereunder. In the event said Section 1110 is amended, or
if it is repealed and another statute is enacted in lieu thereof,
Lessor and Lessee agree to amend this Agreement and take such other
action not inconsistent with this Agreement as Lessor reasonably
deems necessary so as to afford to Lessor the rights and benefits
as such amended or substituted statute confers upon owners and
lessors of aircraft similarly situated to Lessor.
<PAGE>
IN WITNESS whereof the parties hereto have executed this
Agreement on the date shown at the beginning of this Agreement.
WITNESS: Lessor:
INTERLEASE AVIATION INVESTORS II
(ALOHA), L.L.C.
______________________ By: _____________________________
Name: ___________________________
Title: __________________________
WITNESS: Lessee:
VANGUARD AIRLINES, INC.
_______________________ By: ____________________________
Name: __________________________
Title: _________________________
<PAGE>
SCHEDULE 1
PART 1
DESCRIPTION OF AIRCRAFT
AIRCRAFT
MANUFACTURER: Boeing
MODEL: 737-297
SERIAL NUMBER: 22629
U.S. REGISTRATION NO. N5WM
ENGINES
ENGINE TYPE AND NO.: Pratt & Whitney JT8D-15 x 2 with FAA FAR
36 Stage III Hushkits
SERIAL NOS: 707378 and 707385
At the time for acceptance and on the Delivery Date, Lessor
will tender for delivery the Aircraft to Lessee in the following
condition:
(1) General Conditions
(A) The Aircraft will be a U.S. registered aircraft in
airworthy condition and ready for flight by Lessee under Part 121
with all of the equipment, components and systems fully functional
and operating within limits and/or guidelines established by the
relevant manufacturers and the FAA. The Aircraft shall have
installed full complements of engines, avionics, instruments, parts
and other equipment.
(B) The Aircraft shall be free of damage, free of loose,
pulled or missing fasteners, clean by typical good international
airline standards and commensurate with a deep cleaning of such
Aircraft, and all external doublers must be within Boeing SRM
limits and have no evidence of corrosion.
(C) The Aircraft shall have a certificate of
airworthiness issued by the FAA, comply with the manufacturer's
type certificate as revised to the Date of Delivery, and be
delivered in full compliance with all applicable Airworthiness
Directives, mandatory Service Bulletins and FARs affecting such
model aircraft/engine that by their terms require compliance within
two (2) months after the Delivery Date or 540 Flight Hours or 210
Cycles, whichever is applicable, without waiver, exemption or
extension, including but not limited to, requirements relating to
TCAS, windshear, flight data recorders, type-3 exits, aging
<PAGE>
aircraft, corrosion and handicapped requirements. Corrosion shall
be within acceptable limits per the Boeing SRM.
(D) All pilot logbook reports and discrepancies,
deferred maintenance items (including CDL and MEL items) shall have
been corrected without exemption or extension, and neither the
Aircraft nor any Engine shall have any open, deferred continued or
placarded maintenance item that would normally be corrected in U.S.
121 airline operations. All impact damage will be repaired in
accordance with the Boeing SRM.
(2) Airframe.
(A) The Airframe shall be delivered to Lessee with zero
time since a complete C-1 through "heavy" C-7 check and "D" check
using the Boeing MPD.
(B) All hard-time components (except the Engines and
landing gear) will have no less than 50% of the time, hours or
cycles remaining to the next scheduled overhaul per the Boeing MPD.
For components with hardtime limits based on calendar limit, or
which have a Boeing MPD limit of less than 3,000 hours or 3,000
cycles, each such component will be delivered to Lessee with at
least one (1) year remaining (per the Boeing MPD) based on 3,000
hours or cycles equals one (1) year remaining.
(3) Engines. Subject to the terms of Section 4.2(b) of
the Lease Agreement concerning conditional acceptance of the
Aircraft:
(A) The Engines shall be delivered to Lessee with at
least 6,000 cycles and 9,000 hours remaining on each limiter which
applies to the C-1 through C-13 and T-1 through T-4 disks, and each
Engine will have a minimum of two (2) years, 6,000 cycles or 9,000
hours, whichever applies, to compliance with all applicable Engine
repetitive ADs.
(B) Upon delivery, each engine of the Aircraft shall
have completed (at Lessee's expense) a complete (100% of all
stages) boroscope inspection which will cover both hot and cold
sections and Engine condition power assurance runs, and any defects
that exceed the engine manufacturer's limits shall have been
corrected.
(4) APU. The APU will be serviceable ("on condition") on
Delivery.
(5) Landing Gears. Each landing gear will not have less than
50% of time, hours or cycles remaining until the next scheduled
overhaul.
(6) Configuration.
(A) Lessor will reconfigure the Aircraft in a single-class
service 122-seat all coach configuration (including all
<PAGE>
engineering support), with an equivalent number of PSUs, and
provide the Aircraft with closed style bins.
(B) The Aircraft will be stripped and painted in
Lessee's new livery.
(C) Lessor shall reweigh the Aircraft upon completion of
its pre-Delivery workscope for the Aircraft.
(7) Improvements. Before Delivery, Lessor shall:
(A) Aircraft will be delivered to Lessor zero time since
compliance with all applicable repetitive Airworthiness Directives
which have less than 3,000 hours or cycles, or if calendar limited,
one (1) year remaining before compliance is due.
(B) Aircraft will be delivered to Lessee zero time since
compliance with all applicable repetitive "Aging Aircraft" Service
Bulletin Modifications or inspections which have less than 3,000
hours or cycles, or if calendar is limited, one (1) year remaining
before compliance is due per AD 93-08-04.
Aircraft will be delivered to Lessee zero time since
compliance with all applicable "Aging Aircraft" Service Bulletin
Modifications or Inspections which will become due at 75,000 cycles
in compliance with AD 93-17-03 including those Tasks outlined in AD
93-17-08 and AD 90-06-02.
(C) Aircraft will be delivered to Lessee zero time since
the compliance with all applicable Tasks (CPCP) for the Boeing 737-200
(AD 90-25-01) as per Boeing CPCP Document Revision E.
(D) Install a forward lavatory and #2 and #4 galleys
(exclusive, in the case of such galleys, of water drains which may
not be installed), and install coffee makers in the forward #1 and
aft #4 galley.
(8) Other
(A) Aircraft will be delivered to Lessee zero time since
installation of either AvAero or Nordam engine "hush" kits to
comply with FAR 36, Stage III. The choice as to whether AvAero or
Nordam kits shall be used shall remain with Lessor, but Lessor will
obtain Lessee's preference and, provided price including
installation and delivery are reasonably identical, install the
Lessee's preferred kit.
<PAGE>
SCHEDULE 1
PART 2
AIRCRAFT DOCUMENTS
A. CERTIFICATES
o FAA Certificate of Airworthiness
B. AIRCRAFT STATUS RECORDS
o Log Books
o Airframe Maintenance Status Report
o Supplemental Structural Inspection Document Status (if
applicable)
o Manufacturer's Service Bulletin Status Report
o Airworthiness Directive Service Bulletin Compliance
Records and Report (terminated and repetitive), including
documentation adequate to determine the method of
compliance, but not limited to current status
o Modification Status Report List documents will be
provided upon request)
o Last Weighing Report
o List of Life Limited Components with remaining
hours/cycles, with FAA-approved serviceable tags or other
documentation or releases approved by the FAA under Part
121
C. AIRCRAFT MAINTENANCE RECORDS (LAST HEAVY MAINTENANCE VISITS)
o Test Flight Reports
o X-ray pictures
o Last annual check and heaviest maintenance check Work
Cards
D. AIRCRAFT HISTORY RECORDS
o Aircraft Maintenance History Cards
o Service Difficulty Report
o Accident or Incident Report (Major Structural Repair)
E. ENGINE RECORDS (FOR EACH ENGINE)
o Engine time and cycle records
o Last overhaul and repair documents (including FAA Forms
337)
o Airworthiness Directive Compliance Records and Report
(terminated and repetitive), including documentation
adequate to determine the method of compliance, but not
limited to current status
<PAGE>
o Manufacturer's Service Bulletin Status Report including
documentation adequate to determine the method of
compliance, but not limited to current status
o List of Time Controlled Components with remaining hours
and cycles with FAA-approved serviceable tags or other
documentation or releases approved by the FAA under Part
121
o Modification Status Report
o Engine Disc Sheets
o Engine Build Specifications
F. APU RECORDS
o Last Overhaul and Repair Documents (including
modification status)
o Airworthiness Directive Compliance Records and Report
(terminated and repetitive), including documentation
adequate to determine the method of compliance, but not
limited to current status
o Manufacturer's Service Bulletin Records and Status Report
o List of Time Controlled Components with remaining
hours/cycles o Modification Status Report, with FAA-approved
serviceable tags or other documentation or
releases approved by the FAA under Part 121
G. COMPONENT RECORDS
o Time Controlled Component Historical Records with
Installation and FAA-approved Serviceability Tags or
other documentation or releases approved by the FAA under
Part 121
H. MANUALS
o Airplane Flight Manual (Manufacturer Approved, FAA
Approved), which shall include all supplements and
revisions as it relates to the upgrade to -15 engines
o Flight Crew Operating Manual
o Weight and Balance Manual
o Wiring Diagram Manual (microfilm and hard copy if
available)
o Illustrated Parts Catalog (microfilm)
o Aircraft Maintenance Manual (microfilm)
o Manufacturer's Engine Maintenance Manual and any approved
engineering changes, as applicable
I. MISCELLANEOUS TECHNICAL DOCUMENTS
o Maintenance Program Specifications
o Interior Configuration Drawings
o Original Delivery Documents
o Loose Equipment Inventory
<PAGE>
SCHEDULE 1
PART 3
LEASE SUPPLEMENT
THIS LEASE SUPPLEMENT is dated as of __________, 1997,
and is executed by Vanguard Airlines, Inc. ("Lessee") and
Interlease Aviation Investors II (Aloha), L.L.C. ("Lessor"),
pursuant to Section 3.1(d) of the Aircraft Lease Agreement between
Lessor and Lessee dated as of September __, 1997 (the "Lease").
All capitalized terms used herein which are not otherwise defined
herein shall have the meaning given to such terms in the Lease.
Lessor hereby leases to Lessee, and Lessee hereby leases
from Lessor, the Aircraft described below (the "Aircraft") upon and
subject to all of the terms, conditions and provisions of the
Lease, and Lessor and Lessee further agree and state as follows:
1. Description of the Aircraft:
(a) Airframe: Boeing 737-297
Manufacturer's Serial No.: 22629
U.S. Registration No. N5WM
(b) Engines: Two (2) Pratt & Whitney engines,
Model JT8D-15, Serial Numbers 707378 and
707385, each of said engines having 750 or more
rated take-off horsepower or the equivalent
thereof;
(c) All Parts (other than Engines) installed on or
associated with the Airframe and Engines; and
(d) The Aircraft Documents relating to the Airframe
and Engines.
2. The main base of the Aircraft is Kansas City,
Missouri.
3. The Term for the Lease commences on __________, 1997
(the "Delivery Date") and ends on the day preceding the numerically
corresponding day 84 months after the Delivery Date, both dates
inclusive, unless sooner terminated in accordance with the
provisions of the Lease.
4. The Rent for the Aircraft shall be payable in
advance for each calendar month of the Term commencing on the
Delivery Date and shall be the amount set forth in the Letter
Agreement to the Lease.
<PAGE>
IN WITNESS WHEREOF, Lessor and Lessee have caused this
Lease Supplement to be executed by their respective corporate
officers as of the date first above written.
VANGUARD AIRLINES, INC. (LESSEE)
By: _______________________________
Title: ____________________________
INTERLEASE AVIATION INVESTORS II
(ALOHA), L.L.C. (LESSOR)
By: ______________________________
Title: ___________________________
<PAGE>
SCHEDULE 2
CERTIFICATE OF ACCEPTANCE
This Certificate of Acceptance is delivered, on the date set
forth below by Vanguard Airlines, Inc. ("Lessee"), to Interlease
Aviation Investors II (Aloha), L.L.C. ("Lessor"), pursuant to the
Aircraft Lease Agreement dated as of September __, 1997 between
Lessor and Lessee (the "Agreement"). Capitalized terms used in
this Certificate shall have the meaning given to such terms in the
Agreement.
1. DETAILS OF ACCEPTANCE
Lessee hereby confirms to Lessor that Lessee has at _________
o'clock on this ____ day of _____________, 199_, at_______________,
accepted the following, in accordance with the provisions of the
Agreement:
(a) Boeing 737-297 airframe, Manufacturer's Serial No. 22629;
U.S. Registration No. N5WM
(b) 2 Pratt & Whitney JT8D-15 Engines:
Manufacturer's Serial No.
707378; and
707385
(Each of which shall have more than 750 rated takeoff horsepower or
the equivalent of such horsepower).
(c) Loose Equipment Check List: as per list signed by Lessor
and Lessee and attached hereto.
2. HOURS AND CYCLES DATA (AS OF ACCEPTANCE DATE)
(a) Airframe:
Number of Hours since last "D" Check (Heaviest Check):
____ hours
"C" Check (or Equivalent):
Interval: ____________________________
Time Since: __________________________
(b) Landing Gear Overhaul:
Number of Hours Since Last Overhaul:
<PAGE>
Left Gear ___________________________ Hours
Right Gear ___________________________ Hours
Nose Gear ____________________________ Hours
Interval: Left Gear ________________________
Right Gear _______________________
Nose Gear ________________________
(c) Engines:
Total Number of Hours and Cycles:
S/N ______:_________ hours; _____________ cycles
S/N ______:_________ hours; _____________ cycles
Number of Hours Since Last Hot Section Refurbishment:
S/N ______:_________ hours
S/N ______:_________ hours
Number of Hours Since Last Cold Section Refurbishment:
S/N ______:_________ hours
S/N ______:_________ hours
Hot Section Refurbishment:
Interval _________________________________
Time Since (S/N _________): ______________________
Time Since (S/N _________): ______________________
Time Remaining to First Restriction:
Engine S/N: ________________
Hours: ____________ Restriction: ____________
Cycles: ___________ Restriction: ____________
<PAGE>
Engine S/N: ________________
Hours: ____________ Restriction: ____________
Cycles: ___________ Restriction: ____________
Average Cycles in Life Limited Parts (see attached
Schedule): ______________
(d) Auxiliary Power Unit:
Number of APU Hours Since Last Heavy Shop Visit:
_________ hours __________ Date accomplished
Hot Section Refurbishment:
Interval: _______________________
Time Since: _____________________
(e) Time Controlled Components: [see attached report]
(f) Interior Equipment:
Number of Passenger Seats
and Configuration: _____ _____
Number of Galleys and Location: _____ _____
Number of Lavatories and Location: _____ _____
LOPA - Attached: _____ _____
List of Loose Equipment on Board:
__________________________________ _____ _____
__________________________________ _____ _____
__________________________________ _____ _____
__________________________________ _____ _____
__________________________________ _____ _____
__________________________________ _____ _____
<PAGE>
(g) Avionics:
Part
Description Model No.
__________________________________ _____ _____
__________________________________ _____ _____
__________________________________ _____ _____
__________________________________ _____ _____
__________________________________ _____ _____
__________________________________ _____ _____
IN WITNESS WHEREOF, Lessee has, by its duly authorized
representative, executed this Certificate on the date in paragraph
1 above.
LESSEE:
VANGUARD AIRLINES, INC.
By: __________________________
Title: _______________________
<PAGE>
SCHEDULE 3
OPERATING CONDITION AT REDELIVERY
On the Expiration Date, the Aircraft shall:
(1) GENERAL CONDITION
(a) Possess a valid Certificate of Airworthiness with respect
to the Aircraft issued by the Air Authority. The Aircraft will
also meet all requirements for U.S. domestic operations under FAR
Part 121 and will meet the requirements of FAR Part 36, Appendix C,
Stage 3 noise compliance, without waiver or restriction. There
will be no deferred, open or carryover items on the Aircraft or any
Engine on the Expiration Date;
(b) Be clean by U.S. airline standards;
(c) Have installed the full complement of engines and other
equipment, parts and accessories and loose equipment as is normally
installed in the Aircraft, and be in the same economy configuration
of 122 seats, in accordance with an approved STC, as at Delivery;
(d) If Lessee is on a Q Check system, have undergone,
immediately prior to redelivery, a full C Check in accordance with
the Approved Maintenance Program, so that all airframe inspections
falling due within the next following C Check interval, in
accordance with the Approved Maintenance Program, have been
accomplished, and have at least fifty percent (50%) of the hours,
cycles or years, whichever applies as the limiting factor,
remaining to the next Q Check;
Notwithstanding Paragraph 1(d) above, if Lessee wishes to
redeliver the Airframe to Lessor with less than the minimum hours,
cycles or years so remaining, Lessee shall give written notice to
Lessor no later than sixty (60) days prior to the Expiration Date,
and Lessor may, at Lessor's sole option, agree to accept or reject
such nonconforming redelivery by requiring Lessee to perform either
C-1 through C-7 plus SI inspection or a premature C-1 through C-7
plus SI inspection or Q Check and utilize the Airframe Maintenance
Reserves (if such work qualifies for contribution by Lessor
pursuant to Section 7.2) held by Lessor under the Lease; or
(ii) At Lessee's sole option, if Lessor agrees to accept
such nonconforming delivery, accept redelivery of the Airframe in
such condition with an additional payment (in addition to the
Airframe Maintenance Reserves otherwise payable) equal to the
number of Flight Hours or Cycles remaining to the time such
scheduled servicing would become mandatory in accordance with the
Approved Maintenance Program multiplied by the amount of Airframe
Maintenance Reserve per Flight Hour then in effect under the Lease.
<PAGE>
(e) If Lessee is on a C-1 through C-7 plus SI Major Check
system, have undergone, immediately prior to redelivery, a full C
check (including all phases and multiples) in accordance with the
Approved Maintenance Program, so that all airframe inspections
falling due within the next following C check interval, in
accordance with the Approved Maintenance Program, have been
accomplished, and have at least fifty percent (50%) of the hours,
cycles or years, whichever applies as the limiting factor, so
remaining to the next C-1 through C-7 plus SI Major Check per the
Boeing MPD.
Notwithstanding Paragraph 1(e) above, if Lessee wishes to
redeliver the Airframe to Lessor with less life so remaining,
Lessee shall give written notice to Lessor no later than sixty (60)
days prior to the Expiration Date, and Lessor may, at Lessor's sole
option, agree to accept or reject such nonconforming redelivery by
requiring Lessee to perform a premature C-1 through C-7 plus SI
Major Check and utilize the Airframe Maintenance Reserves (if such
work qualifies for contribution by Lessor pursuant to Section 7.2)
held by Lessor under the Lease; or
(ii) At Lessee sole option, if Lessor agrees to accept
such nonconforming redelivery, accept redelivery of the Airframe in
such condition with an additional payment (in addition to the
Airframe Maintenance Reserves otherwise payable) equal to the
number of Flight Hours or Cycles remaining to the time such
scheduled servicing would become mandatory in accordance with the
Approved Maintenance Program multiplied by the amount of Airframe
Maintenance Reserve per Flight Hour or Cycle then in effect under
the Lease.
(f) Be in compliance with all mandatory airworthiness
Directives issued by the FAA (ADs) for compliance during the Term
and within 60 days after the Expiration Date, including being
current with all tasks of the Corrosion Prevention and Control
Program (CPCP) under the Boeing D6-38528 document, with no
exceptions or deviations and with proper supporting documentation;
(g) Be stripped and freshly painted, with an "all white"
fuselage and Boeing gray wings;
(h) Have all required signs and decals clean, secure and
legible.
(2) COMPONENTS
(a) All hard time components/inspections (including all
three(3) Landing Gears) shall have the same number of hours, cycles
or days remaining to the next scheduled overhaul per the Boeing MPD
as each had at Delivery, as evidenced by Lessee's summary prepared
within 30 days of Delivery.
<PAGE>
(b) Promptly following Delivery, Lessor and Lessee will
create a listing of components and their respective status on the
Delivery Date. Each "on-condition" and "condition monitored"
component shall not be less than as set forth on such listing.
(c) The APU will be in the same operational condition as at
the Delivery Date with temperatures and air outputs within the APU
manufacturer's limits at all operational settings; and
(3) ENGINES
Each Engine will be installed on the Aircraft and will be
accompanied by all documentation Lessor may require to evidence
that title thereto is properly vested in Lessor and:
(a) Each Engine and each life limited part within each Engine
will have no less than 3,500 cycles or 7,000 hours until the next
scheduled life limited part replacement.
(b) Each Engine will, at Lessor's option and expense, have
had a complete hot (including combustion chamber) and cold section
video boroscope inspection, and a power assurance run in accordance
with the Engine manufacturer's maintenance manual and all items
beyond such manufacturer's limits will be repaired at Lessee's
expense. No Engine will be "on watch" for any reason requiring any
special or out of sequence inspection.
Notwithstanding Paragraph 3(a) above, if Lessee wishes to
redeliver an Engine to Lessor with less life so remaining, Lessee
shall give written notice to Lessor no later than sixty (60) days
prior to the Expiration Date, and Lessor may, at its sole option,
accept or reject such nonconforming delivery by requiring Lessee to
perform a premature Hot Section Refurbishment Inspection and shop
visit and utilize the Engine Maintenance Reserves (if such work
qualifies for contribution by Lessor pursuant to Section 7.2) held
by Lessor under the Lease; or
(ii) At Lessee's sole option, if Lessor agrees to accept
such nonconforming redelivery, Lessor shall accept redelivery of
the Engines in such condition with an additional payment (in
addition to Maintenance Reserves otherwise payable per Engine)
equal to the number of Flight Hours or Cycles remaining to the time
this scheduled servicing would become mandatory in accordance with
the Approved Maintenance Program multiplied by the amount of Engine
Maintenance Reserves per Flight Hour then in effect.
(4) FUSELAGE, WINDOWS AND DOORS
(a) The fuselage will be free of major dents outside
allowable Boeing Maintenance or Structural Repair Manual Limits and
abrasions and loose or pulled or missing rivets;
<PAGE>
(b) Doors will be free moving, correctly rigged and be fitted
with serviceable seals, free from damage as defined by the Boeing
Maintenance or Structural Repair Manual Limits.
(5) WINGS AND EMPENNAGE
(a) Leading edges will be free from damage, outside allowance
Boeing Maintenance or Structural Repair Manual Limits;
(b) Wings will be free of fuel leaks.
(6) INTERIOR
(a) Ceilings, sidewalls and bulkhead panels will be clean and
reasonably free of noticeable cracks and stains.
(b) Carpets and seat covers will be in good condition, clean
and reasonably free of noticeable stains and meet FAR burn
certification regulations;
(c) Seats will be serviceable, in good condition and
repainted as necessary;
(d) Emergency equipment having a calendar life will have a
minimum of 1 year or 100% of its total approved life, whichever is
less, remaining;
(e) Galleys will contain all equipment installed and
functional including service carts (trolleys), containers and
coffee pots, which will be reasonably clean by airline standards
and shall have all FAA required markings installed;
(f) Overhead stowage compartments will be clean by airline
standards and serviceable with proper markings installed; and
(g) Lavatories will be clean by airline standards and
serviceable with correct FAA markings installed.
(7) COCKPIT
(a) Trim panels shall be reasonably free of noticeable stains
and cracks, will be clean secure and repainted as necessary;
(b) Seat covers will be in good condition, clean and free of
stains and will conform to FAR burn certification regulations; and
(8) CARGO COMPARTMENTS
(a) Panels will be in good condition; and
(b) Nets will be in good condition.
<PAGE>
(9) LANDING GEAR
Time since overhaul on the Landing Gear will not be less than
[50%] remaining until the next scheduled overhaul. The Landing
Gear and wheel wells will be clean, free of leaks and repaired as
necessary.
(10) CORROSION
(a) The Aircraft will have been inspected and treated with
respect to corrosion as defined in the Agreed Maintenance Program
and/or Boeing Document No.D6-38528 relative to compliance with the
Corrosion Prevention and Control Program (CPCP). The entire
fuselage will be substantially free from corrosion and will be
adequately treated and an approved corrosion prevention program
will be in operation; and
(b) Fuel tanks will be free from contamination and corrosion
and a tank treatment program will be in operation.
Notwithstanding anything contained in this Schedule 3, Lessor
shall not be required to make any payments to Lessee in the event
that the Airframe, the Engines, the Landing Gear, any time, cycle
or calendar controlled component is returned to Lessor in a
condition better than that specified in Section 12 and this
Schedule 3.
<PAGE>
SCHEDULE 4
INSURANCE REQUIREMENTS
The Insurance required to be maintained are as follows:
(a) HULL ALL RISKS of Loss or Damage (while flying and on the
ground) with respect to the Aircraft on an "agreed value basis" for
the Agreed Value and with a deductible not exceeding $100,000
(including, without limitation, foreign object damage coverage with
a deductible not exceeding $100,000 per engine per occurrence), or
such other amount agreed by Lessor from time to time. Without
prejudice to the foregoing, with the prior written consent of
Lessor, Lessee may increase the aforesaid deductible amount to
$500,000 if, prior to doing so, Lessee shall have paid to Lessor
the sum of $250,000 by way of an insurance security deposit (the
"Insurance Security Deposit") (which Insurance Deposit shall also
be available to be applied to deductible losses between $100,000
and $500,000). Insurance Security Deposit (which shall be held by
Lessor as security for the performance by Lessee of its obligations
under this Agreement and the Other Agreements), shall be returned
to Lessee on the Expiration Date if all amounts payable by Lessee
under this Agreement and any Other Agreement shall have been paid
in full and no Default shall have occurred and be continuing. With
Lessor's prior consent, the Insurance Deposit may be provided by
Lessee by way of letter of credit issued by a bank acceptable to
Lessor and in form and in substance satisfactory to Lessor.
In the event that the Insurance Security Deposit is applied to
a loss claim thereby reducing the balance thereof, Lessee will
either (a) replace any deficiency in such balance; or (b) lower the
all risk hull insurance deductible to $100,000 within 15 days after
the aforementioned application.
(b) HULL WAR AND ALLIED PERILS, being such risks excluded
from the Hull All Risks Policy to the fullest extent available from
the leading international insurance markets including confiscation
and requisition by the State of Registration for the Agreed Value;
(c) ALL RISKS (INCLUDING WAR AND ALLIED RISK except when on
the ground or in transit other than by air) property insurance on
all Engines and Parts when not installed on the Aircraft on an
"agreed value" basis and including engine test and running risks;
(d) AIRCRAFT THIRD PARTY, PROPERTY DAMAGE, PASSENGER,
BAGGAGE, CARGO AND MAIL AND AIRLINE GENERAL THIRD PARTY (INCLUDING
PRODUCTS) LEGAL LIABILITY for a Combined Single Limit (Bodily
Injury/Property Damage) of an amount not less than the Minimum
Liability Coverage for any one occurrence (but in respect of
products and personal injury liability this limit may be an
aggregate limit for any and all losses occurring during the
currency of the policy). War and Allied Risks are also to be
<PAGE>
covered under the Policy to the fullest extent available from the
leading international insurance markets;
(e) All required hull and spares insurance (as specified
above), so far as it relates to the Aircraft will:
(i) name Lessor and their respective successors and
assigns as additional assureds for their respective rights and
interests, warranted, each as to itself only, no operational
interest;
(ii) provide that any loss will be settled jointly
with Lessor and Lessee, subject to final prior approval of
Lessor and will be payable in Dollars to Lessor, for the
account of all interests except where the loss does not exceed
the Damage Notification Threshold, and Lessor has not notified
the insurers to the contrary, in which case the loss will be
settled with and paid to Lessee;
(iii) include a notice and/or acknowledgement of
assignment in a form acceptable to Lessor;
(iv) if separate Hull "all risks" and "war risks"
insurances are arranged, include a 50/50 provision in
accordance with market practice (AVS. 103 is the current
market language);
(v) confirm that the insurers are not entitled to
replace the Aircraft in the event of an insured Event of Loss;
(vi) confirm that the insurers will not obtain a
valid discharge of the obligations under the Insurance by
payment to the broker, notwithstanding market practice to the
contrary;
(f) All required liability insurances (specified above) will:
(i) include Lessor and Norwest Bank Iowa, N.A. and
their respective successors and assigns, and their respective
shareholders, subsidiaries, directors, officers, agents,
employees and indemnitees as additional insureds for their
respective rights and interests, warranted, each as to itself
only, no operational interest;
(ii) include a Severability of Interest Clause which
provides that the insurance, except for the limit of
liability, will operate to give each assured the same
protection as if there was a separate policy issued to each
assured;
(iii) contain a provision confirming that the policy
is primary without right of contribution and the liability of
<PAGE>
the insurers will not be affected by any other insurance of
which Lessor or Lessee have the benefit so as to reduce the
amount payable to the additional insureds under such policies;
(g) All Insurance will:
(i) be in accordance with normal industry practice
of persons operating similar aircraft in similar
circumstances;
(ii) provide cover denominated in Dollars and any
other currencies which Lessor may reasonably require in
relation to liability insurance;
(iii) operate on a worldwide basis subject to such
reasonable limitations and exclusions as Lessor may agree;
(iv) acknowledge the insurer is aware (and has seen
a copy) of this Agreement and that the Aircraft is owned by
Lessor;
(v) provide that, in relation to the interests of
each of the additional assureds the Insurance will not be
invalidated by any act or omission by Lessee, or any other
person other than the respective additional assured seeking
protection and shall insure the interests of each of the
additional assureds regardless of any breach or violation by
Lessee, or any other person other than the respective
additional assured seeking protection of any warranty,
declaration or condition, contained in such Insurances;
(vi) provide that the insurers will hold harmless
and waive any rights of recourse and/or subrogation against
the additional assureds or to be subrogated to any rights of
the Banks against Lessor or Lessee;
(vii) provide that the additional assureds will have
no obligation or responsibility for the payment of any
premiums due (but reserve the right to pay the same should any
of them elect so to do) and that the insurers will not
exercise any right of set-off or counter-claim in respect of
any premium due against the respective interests of the
additional assureds other than outstanding premiums relating
to the Aircraft, any Engine or Part the subject of the
relevant claim;
(viii) provide that the Insurance will continue
unaltered for the benefit of the additional assureds for at
least thirty (30) days after written notice by registered mail
or telex of any cancellation, change, event of non-payment of
premium or instalment thereof has been sent to Lessor, except
in the case of war risks for which seven (7) days (or such
<PAGE>
lesser period as is or may be customarily available in respect
of war risks or allied perils) will be given, or in the case
of war between the five (5) great powers or nuclear peril for
which termination is automatic;
(ix) contain a provision entitling Lessor or any
insured party to initiate a claim under any policy in the
event of the refusal or failure of Lessee to do so; and
(x) accept and insure the indemnity provisions of
this Agreement to the extent of the risks covered by the
policies.
<PAGE>
SCHEDULE 5
FORM OF LEGAL OPINION
To: [Lessor]
[Date]
Dear Sir or Madam:
You have asked us to render an opinion in connection with
the transaction governed, inter alia, by the Lease (as hereinafter
defined). Words and expressions used herein will have the same
meanings as defined in an Aircraft Lease Agreement (the "Lease")
dated as of September __, 1997 between Interlease Aviation
Investors II (Aloha), L.L.C. ("Lessor") and Vanguard Airlines, Inc.
("Lessee") in respect of one Boeing 737 aircraft, with
manufacturer's serial number 22629, together with the 2 installed
Pratt & Whitney JT8D-15 engines (the "Aircraft").
In connection with our opinion, we have reviewed, inter alia,
the following:
(a) The Lease;
(b) The Articles of Incorporation and Bylaws of Lessee;
(c) All other documents, approvals and consents of
whatever nature and wherever kept which it was, in our judgment and
to our knowledge, necessary or appropriate to examine to enable us
to give the opinion expressed below.
After reviewing the documents listed in the preceding
paragraph above, and having regard to the relevant laws of the
State of Iowa, we are of the opinion that:
(a) Lessee is a corporation duly organized and validly
existing under the laws of ________, is qualified to do business as
a foreign corporation in each jurisdiction where failure to so
qualify would have a materially adverse effect on Lessee's business
or its ability to perform its obligations under the Lease;
(b) Lessee has the corporate power to enter into and
perform, and has taken all necessary corporate action to authorize
the entry into, performance and delivery of, the Lease and the
transactions contemplated by the Lease; and
(c) The entry into and performance by Lessee of, and the
transactions contemplated by, the Lease do not and will not:
<PAGE>
(i) conflict with any laws binding on Lessee;
or
(ii) conflict with the Articles of
Incorporation or Bylaws of Lessee;
(d) No authorizations, consents, licenses, approvals and
registrations (other than those which have been obtained and of
which copies are attached hereto) are necessary or desirable to be
obtained from any federal governmental or other regulatory
authorities in having jurisdiction over Lessee or its properties to
enable Lessee:
(1) To enter into and perform the transactions
contemplated by the Lease;
(2) To import the Aircraft into the United States
and Missouri for the duration of the Term;
(3) To operate the Aircraft in the United States
for the transport of fare-paying passengers; or
(4) To make the payments provided for in the Lease;
(e) Except for the filing and recordation of the Lease
with the FAA and the filing of the Financing Statements with the
Secretary of State of Missouri (which filing has been duly made on
or before this date), it is not necessary to ensure the priority,
validity and enforceability of all the obligations of Lessee under
the Lease that the Lease be filed, registered, recorded or
notarized in any public office or elsewhere or that any other
instrument relating thereto be signed, delivered, filed, registered
or recorded, that any tax or duty be paid or that any other action
whatsoever be taken;
(f) No other steps are necessary to record or perfect
Lessor's interest in the Aircraft in the United States or Missouri;
(g) On termination of the Lease (whether on expiration
or otherwise) as contemplated in the Lease, Lessor will be
entitled;
(1) To repossess the Aircraft;
(2) To de-register the Aircraft from the aircraft
registry of the Air Authority; and
(3) To export the Aircraft from the United States;
without requiring any further consents, approvals or licenses from
any federal governmental or regulatory authority in the United
States;
<PAGE>
(h) The Lease has been properly signed and delivered on
behalf of Lessee and the obligations on the part of Lessee
contained therein, assuming them to be valid and binding according
to the Governing Law, are valid and legally binding on and
enforceable against Lessee respectively under the laws of Iowa;
(i) Lessee is a Certificated Air Carrier;
(j) Lessee is a "citizen of the United States" as
defined in 49 U.S.C. Section 40102(a)(15).
(k) Lessor is entitled to the benefits of Section 1110
of Title 11 of the United States Code with respect to the Aircraft
to the extent the Aircraft constitutes aircraft, engines and spare
parts as defined in 49 U.S.C. Section 40102(a).
(l) The consent to the jurisdiction by Lessee contained
in the Lease is valid and binding on Lessee and not subject to
revocation.
Very truly yours,
<PAGE>
SCHEDULE 6
CERTIFICATE OF DELIVERY
This Certificate of Delivery is made on the date set forth
below by Vanguard Airlines, Inc. ("Lessee"), to Interlease Aviation
Investors II (Aloha), L.L.C. ("Lessor"), pursuant to the Aircraft
Lease Agreement dated as of September __, 1997 between Lessor and
Lessee (the "Agreement"). Capitalized terms used in this
Certificate shall have the meaning given to such terms in the
Agreement.
1. DETAILS OF ACCEPTANCE
Lessee hereby confirms to Lessor that Lessee has at _________
o'clock on this ____ day of _______________, 199_, at ________,
delivered the following in the same condition as at acceptance
(except for ferry time), in accordance with the provisions of the
Agreement.
(a) Boeing 737-297 airframe, Manufacturer's Serial No. 22629;
U.S. Registration No. N5WM
(b) 2 Pratt & Whitney JT8D-15 Engines:
Manufacturer's Serial No.
707378; and
707385
(Each of which has more than 750 rated takeoff horsepower or the
equivalent of such horsepower).
(c) Loose Equipment Check List: as per list signed by Lessor
and Lessee and attached hereto.
2. CONFIRMATION
Lessee confirms to Lessor that as at the time indicated above,
being the Delivery Date:
(a) The representations and warranties contained in Section 2
are hereby repeated;
(b) The Aircraft is insured as required by the Agreement;
(c) Lessee confirms that there have been affixed to the
Aircraft and the Engines the notices required by the Agreement; and
<PAGE>
(d) Lessee's authorized technical experts have inspected the
Aircraft to ensure the Aircraft is in accordance with the
conditions required by the Agreement.
3. HOURS AND CYCLES DATA (AS OF DELIVERY DATE)
(a) Airframe:
Number of Hours since last "D" Check (Heaviest Check):
____ hours
"C" Check (or Equivalent):
Interval: ____________________________
Time Since: __________________________
(b) Landing Gear Overhaul:
Number of Hours Since Last Overhaul:
Left Gear ___________________________ Hours
Right Gear __________________________ Hours
Nose Gear ___________________________ Hours
Interval: Left Gear ________________________
Right Gear _______________________
Nose Gear ________________________
(c) Engines:
Total Number of Hours and Cycles:
S/N ______:_________ hours; _____________ cycles
S/N ______:_________ hours; _____________ cycles
Number of Hours Since Last Hot Section Refurbishment:
S/N ______:_________ hours
S/N ______:_________ hours
<PAGE>
Number of Hours Since Last Cold Section Refurbishment:
S/N ______:_________ hours
S/N ______:_________ hours
Hot Section Refurbishment:
Interval _________________________________
Time Since (S/N _________): ______________________
Time Since (S/N _________): ______________________
Time Remaining to First Restriction:
Engine S/N: ________________
Hours: ____________ Restriction: ____________
Cycles: ___________ Restriction: ____________
Engine S/N: ________________
Hours: ____________ Restriction: ____________
Cycles: ___________ Restriction: ____________
Average Cycles in Life Limited Parts (see attached
Schedule): ______________
(d) Auxiliary Power Unit:
Number of APU Hours Since Last Heavy Shop Visit:
_________ hours __________ Date accomplished
Hot Section Refurbishment:
Interval: _______________________
Time Since: _____________________
(e) Time Controlled Components: [see attached report]
(f) Fuel on Board on Delivery Date: ______________________
(g) Interior Equipment:
Number of Passenger Seats
and Configuration: _____ _____
<PAGE>
Number of Galleys and Location: _____ _____
Number of Lavatories and Location: _____ _____
LOPA - Attached: _____ _____
List of Loose Equipment on Board:
__________________________________ _____ _____
__________________________________ _____ _____
__________________________________ _____ _____
__________________________________ _____ _____
__________________________________ _____ _____
__________________________________ _____ _____
(h) Avionics:
Part
Description Model No.
__________________________________ _____ _____
__________________________________ _____ _____
__________________________________ _____ _____
__________________________________ _____ _____
__________________________________ _____ _____
__________________________________ _____ _____
IN WITNESS WHEREOF, Lessee has, by its duly authorized
representative, executed this Certificate on the date in paragraph
1 above.
LESSEE:
VANGUARD AIRLINES, INC.
By: __________________________
Title: _______________________
LOSS PER COMMON SHARE COMPUTATION
VANGUARD AIRLINES, INC.
Nine Months ended September 30,
1997 1996
Net Loss $(21,689,726) $(11,429,768)
Weighted average number of common and
common equivalent shares outstanding (1)12,916,055 8,626,709
Net loss per share $(1.68) $(1.32)
(1) In 1997 and 1996, outstanding stock options and warrants were not
considered in the net loss per share calculation, as their effects are
antidilutive.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THE SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
COMPANY'S FORM 10-Q FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 30, 1997.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> SEP-30-1997
<CASH> 234,924
<SECURITIES> 0
<RECEIVABLES> 3,043,465
<ALLOWANCES> 154,145
<INVENTORY> 751,627
<CURRENT-ASSETS> 11,579,588
<PP&E> 9,088,920
<DEPRECIATION> (4,113,638)
<TOTAL-ASSETS> 25,496,623
<CURRENT-LIABILITIES> 42,713,949
<BONDS> 0
0
0
<COMMON> 15,227
<OTHER-SE> (20,608,525)
<TOTAL-LIABILITY-AND-EQUITY> 25,496,623
<SALES> 62,479,303
<TOTAL-REVENUES> 62,479,303
<CGS> 82,224,897
<TOTAL-COSTS> 82,224,897
<OTHER-EXPENSES> 1,252,707
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 691,425
<INCOME-PRETAX> (21,689,726)
<INCOME-TAX> 0
<INCOME-CONTINUING> (21,689,726)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (21,689,726)
<EPS-PRIMARY> (1.68)
<EPS-DILUTED> (1.68)
</TABLE>
