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, 1999.
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)
533 Mexico City Avenue
Kansas City International Airport
Kansas City, MO 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, 1999, there were 17,098,526 shares of Common
Stock, par value $.001 per share, issued and outstanding.
<PAGE>
PART I. - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
<TABLE>
VANGUARD AIRLINES, INC.
BALANCE SHEETS
SEPTEMBER 30, DECEMBER 31,
1999 1998
------------- ------------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents, including
restricted cash and cash equivalents
of $5,000,000 at September 30, 1999 $13,481,452 $ 7,417,048
Accounts receivable, less allowance
of $172,000 at September 30, 1999 and
$303,000 at December 31, 1998 2,791,572 2,030,309
Inventories 1,301,791 1,168,054
Current portion of supplemental
maintenance deposits 2,677,467 4,490,281
Prepaid expenses and other current assets 2,068,965 1,022,953
---------- ----------
Total current assets 22,321,247 16,128,645
Property and equipment, at cost:
Aircraft improvements and leasehold
costs 7,221,001 4,854,683
Reservation system and communication
equipment 1,872,119 1,867,954
Aircraft engines and rotable inventory 7,244,996 6,243,693
Other property and equipment 4,165,441 2,624,579
---------- ----------
20,503,557 15,590,909
Less accumulated depreciation and
amortization (10,256,917) (7,459,456)
----------- ----------
10,246,640 8,131,453
Other assets:
Supplemental maintenance deposits,
less current portion 8,182,012 5,121,050
Deferred debt issuance costs 497,440 83,448
Leased aircraft deposits 3,400,000 2,299,000
Security deposits 720,780 883,610
Other 1,610,222 999,377
---------- ----------
14,410,454 9,386,485
---------- ----------
Total assets $46,978,341 $33,646,583
=========== ===========
</TABLE>
<PAGE>
VANGUARD AIRLINES, INC.
BALANCE SHEETS (CONTINUED)
<TABLE>
SEPTEMBER 30, DECEMBER 31,
1999 1998
--------------- ------------
<S> <C> <C>
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 5,008,204 $ 5,848,635
Accrued expenses 4,594,403 3,062,823
Accrued maintenance 9,321,766 6,902,847
Air traffic liability 13,621,885 8,230,222
---------- -----------
Total current liabilities 32,546,258 24,044,527
Accrued maintenance, less current portion 5,698,824 3,818,184
Commitments
Stockholders' equity:
Common stock, $.001 par value:
Authorized shares - 200,000,000
Issued and outstanding
shares - 17,098,526 in 1999
(17,074,462 in 1998) 17,099 17,074
Preferred stock, $.001 par value:
Authorized shares - 2,000,000
Issued and outstanding
shares - 302,362 302 302
Liquidation preference - $3,023,620
Additional paid-in capital 77,701,279 76,954,671
Accumulated deficit (68,985,421) (71,170,997)
----------- -----------
8,733,259 5,801,050
Deferred stock compensation -- (17,178)
---------- ----------
Total stockholders' equity 8,733,259 5,783,872
----------- -----------
Total liabilities and stockholders' equity $46,978,341 $33,646,583
=========== ===========
</TABLE>
SEE ACCOMPANYING NOTES.
<PAGE>
VANGUARD AIRLINES, INC.
STATEMENTS OF OPERATIONS
<TABLE>
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
------------------------- -------------------
1999 1998 1999 1998
------ ------ ----- -----
<S> <C> <C> <C> <C>
Operating revenues:
Passenger revenues $ 33,806,906 $ 30,671,667 $ 88,776,038 $ 73,712,222
Other 1,636,641 1,510,712 5,170,345 5,138,388
------------ ----------- ----------- ------------
Total operating revenues 35,443,547 32,182,379 93,946,383 78,850,610
Operating expenses:
Flying operations 6,633,291 4,696,929 17,146,556 13,553,485
Aircraft fuel 5,454,636 3,502,854 13,089,084 10,509,813
Maintenance 7,621,154 6,619,080 19,680,942 15,764,956
Passenger service 2,191,484 1,806,299 5,567,308 5,208,789
Aircraft and traffic
servicing 5,642,085 4,006,171 14,990,537 13,019,286
Promotion and sales 5,559,196 5,632,189 15,081,787 14,492,486
General and
administrative 1,072,973 1,179,666 3,000,305 3,154,920
Depreciation and
amortization 1,144,467 651,117 3,155,948 1,784,467
------------ ---------- ----------- -----------
Total operating
expenses 35,319,286 28,094,305 91,712,467 77,488,202
---------- --------- ---------- -----------
Operating income 124,261 4,088,074 2,233,916 1,362,408
Other income (expense):
Deferred debt issuance
cost amortization (114,631) (737,538) (274,008) (1,867,847)
Interest expense --- (51,104) --- (496,691)
Interest income 162,636 65,244 371,588 98,433
Other (45,531) --- (88,829) ---
----------- ---------- ---------- -----------
Total other income
(expense), net 2,474 (723,398) 8,751 (2,266,105)
---------- ---------- ---------- -----------
Income (loss) before
taxes 126,735 3,364,676 2,242,667 (903,697)
Income tax benefit
(expense) 63,159 --- (57,091) ---
---------- ---------- ---------- -----------
Net income (loss) $ 189,894 $ 3,364,676 $ 2,185,576 $ (903,697)
=========== ============= ============= ============
Net income (loss)
per share:
Basic $ 0.01 $ 0.22 $ 0.13 $ (0.08)
=========== ============ ============= ==========
Diluted $ 0.01 $ 0.18 $ 0.11 $ (0.08)
=========== ============ ============= ==========
Weighted average shares
used in per share
computation:
Basic 17,091,550 15,353,859 17,083,204 11,847,020
=========== ============ ============= ==========
Diluted 19,583,069 18,827,917 19,404,783 11,847,020
=========== ============ ============= ==========
</TABLE>
SEE ACCOMPANYING NOTES
<PAGE>
VANGUARD AIRLINES, INC.
STATEMENTS OF CASH FLOWS
<TABLE>
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
------------------------ ---------------------
1999 1998 1999 1998
----- ----- ----- -----
<S> <C> <C> <C> <C>
OPERATING ACTIVITIES
Net income (loss) $ 189,894 $ 3,364,676 $ 2,185,576 $ (903,697)
Adjustments to reconcile
net income (loss) to net
cash provided by (used in)
operating activities:
Depreciation 707,317 334,441 1,941,961 839,660
Amortization 437,150 316,676 1,213,987 944,807
Compensation related to
stock options --- 8,595 17,178 25,785
Debt issuance cost
amortization 114,631 737,538 274,008 1,867,847
Provision for
uncollectible accounts 62,938 23,549 73,905 48,739
Changes in operating
assets and liabilities:
Restricted cash 1,033,226 202,862 (5,000,000) (726,492)
Accounts receivable 407,993 (8,252) (835,168) (171,639)
Inventories 71,739 (406,189) (133,737) (606,298)
Prepaid expenses and
other current assets (722,489) 273,825 (1,046,012) (292,486)
Supplemental maintenance
deposits (612,497) (607,756) (1,248,148) (1,471,357)
Accounts payable (226,021) (802,697) (840,431) (669,710)
Accrued expenses 1,073,683 1,061,054 1,531,580 1,058,361
Accrued maintenance 1,083,918 524,217 2,728,392 759,591
Air traffic
liability (1,534,417) 503,361 5,391,663 4,513,071
Deposits and other (445,132) 255,953 (1,549,015) (32,080)
----------- ----------- ------------- ----------
Net cash provided by
(used in) operating
activities 1,641,933 5,781,853 4,705,739 5,184,102
INVESTING ACTIVITIES
Purchases of property
and equipment (862,053) (1,693,412) (3,699,968) (3,625,424)
FINANCING ACTIVITIES
Proceeds from line of
credit borrowings --- --- --- 1,900,000
Principal payments on
line of credit --- (1,900,000) --- (3,800,000)
Proceeds from issuance
of notes payable to
related parties --- --- --- 3,000,000
Proceeds from issuance
of notes payable --- --- --- 275,000
Principal payments on
notes payable --- (136,920) --- (181,808)
Proceeds from exercise
of stock options
and warrants 39,832 5,168,086 58,633 5,191,053
Payment of preferred
stock offering costs --- --- --- (101,873)
------------ --------------- ----------- -------------
Net cash provided by
financing activities 39,832 3,131,166 58,633 6,282,372
------------ ------------- ------------ -------------
Net increase in cash
and cash equivalents 819,712 7,219,607 1,064,404 7,841,050
Cash and cash equivalents
at beginning of period 7,661,740 1,704,155 7,417,048 1,082,712
------------ ------------ ----------- ------------
Cash and cash equivalents
at end of period (1) $ 8,481,452 $ 8,923,762 $ 8,481,452 $ 8,923,762
=========== ============ ============ =============
</TABLE>
<PAGE>
VANGUARD AIRLINES, INC.
STATEMENTS OF CASH FLOWS (CONTINUED)
<TABLE>
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
1999 1998 1999 1998
------ ------ ------ ------
<S> <C> <C> <C> <C>
SUPPLEMENTAL DISCLOSURES OF
CASH FLOW INFORMATION:
Cash paid during the period
for interest $ --- $ 25,702 $ --- $ 127,137
======== ======== ========= =========
SUPPLEMENTAL SCHEDULE OF
NONCASH INVESTING AND
FINANCING ACTIVITIES:
Aircraft leasehold costs
associated with accrued
maintenance $ 721,167 $ --- $1,571,167 $ ---
========== ======== ========== =========
Conversion of notes
payable to related parties
and accrued interest
to preferred stock $ --- $ --- $ --- $3,023,620
========== ======== ========== ==========
Conversion of notes payable
to related parties and
accrued interest to
common stock $ --- $ --- $ --- $10,564,887
========== ======== ========== ===========
Deferred debt issuance
costs recorded in
conjunction with warrants
issued $ 335,000 $ 344,000 $ 688,000 $ 486,000
========== ======== ========== ==========
</TABLE>
SEE ACCOMPANYING NOTES.
(1) Excludes restricted cash and cash equivalents of $5,000,000 at
September 30, 1999.
<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, 1998, 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, 1998, included in the Company's Form 10-K as
filed with the Securities and Exchange Commission on March 31, 1999.
The balance sheet as of September 30, 1999, the statements of
operations for the three and nine months ended September 30, 1999 and
1998, and the statements of cash flows for the three and nine
months ended September 30, 1999 and 1998 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
and nine months ended September 30, 1999 are not necessarily indicative
of the results to be expected for the entire fiscal year ending
December 31, 1999.
2. REVERSE ONE-FOR-FIVE STOCK SPLIT
On May 18, 1999, the Company's shareholders approved a one-for-five
reverse stock split on all authorized shares of common stock. The par
value per share remained at $0.001 per share and 200,000,000 common
shares remained authorized. All convertible warrants, options and
preferred stock agreements were updated to reflect the reverse stock
split. All historical information presented in this document has been
retroactively restated to reflect the one-for-five reverse stock split.
3. EARNINGS PER SHARE
The following table sets forth the computation of the adjusted
weighted average shares and assumed conversions used in the calculation
of diluted earnings per share for the three and nine months ended
September 30, 1999 (adjusted to reflect the one-for-five reverse stock
split):
<TABLE>
Three-months Ended Nine-months Ended
------------------ -----------------
September 30, September 30,
------------ -------------
1999 1998 1999 1998
<S> <C> <C> <C> <C>
Numerator:
Numerator for basic
and diluted earnings
per share-income
(loss) available to
common stockholders
after assumed
conversions $ 189,894 $ 3,364,676 $ 2,185,576 $ (903,697)
============= ============= ============= ==============
DENOMINATOR:
Denominator for
basic earnings
per share -
weighted average
shares 17,091,550 15,353,859 17,083,204 11,847,020
Effect of dilutive
securities:
Employee stock
options 1,067,130 1,128,321 912,149 ---
Warrants 214,941 1,136,289 199,982 ---
Convertible preferred
stock 1,209,448 1,209,448 1,209,448 ---
----------- ----------- ----------- --------
Dilutive potential
common shares 2,491,519 3,474,058 2,321,579 ---
----------- ----------- ----------- --------
Denominator for
diluted earnings
per share - adjusted
weighted-average
shares and assumed
conversions 19,583,069 18,827,917 19,404,783 11,847,020
========== =========== ========== ===========
</TABLE>
<PAGE>
Basic earnings per share for the three and nine months ended September 30,
1999 and 1998 were computed using the weighted average number of
outstanding common shares. Diluted earnings per share for the three
and nine months ended September 30, 1999, and the three months ended
September 30, 1998 were computed using the weighted average number of
shares and any dilutive potential common shares. For the nine months
ended September 30, 1998, the computation of diluted net loss per share
was based solely on the weighted average number of outstanding common
shares because the effect of outstanding preferred stock, employee
stock options and warrants was antidilutive.
4. USE OF ESTIMATES
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates
and assumptions that affect the amounts reported in the financial
statements and accompanying notes. Actual results could differ from
those estimates.
5. LEASES
During 1999, the Company accepted delivery of five additional aircraft
between February and October. The lease terms are five years from
the date of delivery and, like the other aircraft leases, require
the Company to make supplemental payments to the aircraft lessor
based on the number of cycles/flight hours, as defined by the lease
agreements. The supplemental payments are recoverable from the
lessor upon the performance of required engine, airframe, landing
gear and auxiliary power unit overhauls. At September 30, 1999,
the Company had made deposits on these aircraft totaling $1,364,000 and
was required to make an additional deposit totaling $115,000
in October 1999. In addition, in November 1999, the Company has
signed a letter of intent for the lease and delivery of six
additional aircraft during 2000 and 2001.
Future minimum lease payments under noncancelable operating leases
(excluding supplemental payments but including the lease agreement
related to the aircraft delivery in October 1999) at September 30, 1999
were as follows:
Year ended September 30:
2000 $ 16,718,083
2001 13,629,762
2002 12,338,853
2003 8,093,667
2004 4,732,000
-------------
Total minimum lease payments $ 55,512,365
=============
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 WITHIN THE MEANING OF
SECTION 21E OF THE SECURITIES ACT OF 1934 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
MAY DIFFER MATERIALLY FROM THOSE CURRENTLY ANTICIPATED. FACTORS THAT
COULD CAUSE OR CONTRIBUTE TO SUCH DIFFERENCES INCLUDE, BUT ARE NOT
LIMITED TO, AVAILABILITY OF WORKING CAPITAL AND FUTURE FINANCING
RESOURCES, GENERAL ECONOMIC CONDITIONS, THE COST OF JET FUEL, THE
OCCURRENCE OF EVENTS INVOLVING OTHER LOW-FARE CARRIERS, THE CURRENT
SUPPLY OF BOEING 737 JET AIRCRAFT AND THE HIGHER LEASE COSTS ASSOCIATED
WITH SUCH AIRCRAFT, POTENTIAL CHANGES IN GOVERNMENT REGULATION OF
AIRLINES OR AIRCRAFT AND ACTIONS TAKEN BY OTHER AIRLINES PARTICULARLY
WITH RESPECT TO SCHEDULING AND PRICE IN THE COMPANY'S CURRENT OR FUTURE
ROUTES AND UNANTICIPATED YEAR 2000 COMPLIANCE COSTS AND EXPENSES. FOR
ADDITIONAL DISCUSSION OF SUCH RISKS, SEE "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
The Company was incorporated on April 25, 1994 and operates as a
low-fare, short- to medium-haul passenger airline that provides convenient
scheduled jet service to attractive destinations in established markets
in the United States. The Company's flight operations began on December 4,
1994 with two Boeing 737-200 jet aircraft operating two daily flights each
way between Kansas City and Denver and two daily flights each way between
Denver and Salt Lake City. The Company currently operates thirteen leased
Boeing 737-200 jet aircraft. The Company's current schedule provides an
average of 81 daily weekday flights serving Kansas City, Atlanta,
Buffalo/Niagara Falls, Chicago-Midway, Cincinnati, Dallas/Fort Worth,
Denver, Minneapolis/St. Paul, Pittsburgh and Myrtle Beach. The Company
currently operates a concentration of its daily flights in Chicago-Midway
with 23 daily weekday flights and Kansas City with 21 daily weekday
flights. The Company also provides limited charter services.
The Company has experienced significant growth since the commencement of
operations in December 1994. 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, high
passenger-volume markets that are not served by other low-fare airlines.
OVERVIEW
THREE MONTHS ENDED SEPTEMBER 30, 1999 COMPARED TO THE THREE
MONTHS ENDED SEPTEMBER 30, 1998
Selected Financial and Operational Data:
<TABLE>
THREE MONTHS ENDED SEPTEMBER 30,
------------------------------------------
$ %
1999 1998 CHANGE CHANGE
------ ------- ------- -------
<S> <C> <C> <C> <C>
Revenue passengers carried 554,516 419,362 135,154 32.2 %
Revenue passenger miles -
RPMs (000s) 251,518 191,808 59,710 31.1 %
Available seat miles -
ASMs (000s) 368,694 267,531 101,163 37.8 %
Load factor 68.2 % 71.7 % (3.5)pts. (4.9) %
Departures 6,989 4,933 2,056 41.7 %
Average stage length 454 457 (3) (0.7) %
Miles flown (000s) 3,063 2,211 852 38.5 %
Block hours flown 9,871 7,191 2,680 37.3 %
Passenger yield $ 0.134 $ 0.160 $ (0.026) (16.3) %
Total revenue per ASM $ 0.096 $ 0.120 $ (0.024) (20.0) %
Operating expenses per ASM $ 0.096 $ 0.105 $ (0.009) (8.6) %
Operating cost per block hour $ 3,578 $ 3,907 (329) (8.4) %
Average fuel cost per gallon $ 0.62 $ 0.57 $ 0.05 8.8 %
Average size of fleet for
period 12.2 9.0 3.2 35.6 %
</TABLE>
OPERATING REVENUES
Total operating revenues increased 10% from $32.2 million for the quarter
ended September 30, 1998 to $35.4 million for the quarter ended September
30, 1999. This increase was attributable to the additional capacity put
into service during the quarter and the resultant increase in the number
of passengers offset by a decrease in passenger yield. The reduction in
yield in the third quarter of 1999 as compared to the third quarter of
1998 mainly resulted from a major competitor's pilot strike during the
third quarter of 1998. ASMs increased 38% from 268 million to 369 million.
The number of passengers increased 32% from 419,362 in the quarter ended
September 30, 1998 to 554,516 in the quarter ended September 30, 1999.
The increase in capacity is the result of an additional aircraft placed
in service in March, April, August and September 1999. Passenger yield
per RPM decreased 16% from 16.0 cents in the quarter ended September 30,
1998 to 13.4 cents in the quarter ended September 30, 1999 as a result of
factors described above. RPMs increased 31% from 192 million in the
quarter ended September 30, 1998 to 252 million in the quarter ended
September 30, 1999. This increase was the result of the 32% increase
in the number of passengers in the quarter ended September 30, 1999 as
compared to 1998. Load factor decreased from 72% for the quarter ended
September 30, 1998 to 68% for the quarter ended September 30, 1999.
This decrease was the result of a 31% increase in the RPMs coupled with
a 38% increase in capacity in the quarter ended September 30, 1999 as
compared to the quarter ended September 30, 1998. Management believes
the major competitor's pilot strike during the third quarter of 1998,
specifically in September, contributed to the decrease in load factor.
Other revenues include fees generated as a result of service charges from
passengers who change flight reservations, mail and liquor revenues.
Subject to certain restrictions, a customer may pay a service charge to
use the value of the unused reservation for rebooking transportation for
a period of 180 days subsequent to the flight date. Service charges were
$1.2 million (approximately 3% of total operating revenues) and $1.2
million (approximately 4% of total operating revenues) in the quarters ended
September 30, 1999 and 1998, respectively. The decrease in service fee
revenue as a percentage of total operating revenues
is a direct result of less passengers changing their travel
itineraries.
<PAGE>
The Company's strategic plan to continue to improve its product includes
the delivery of a reliable product with a number of amenities found on
larger, better-known airlines that specifically cater to price-sensitive
business travelers. Those amenities include assigned seating, refundable
tickets, greater legroom, fixed ticket pricing under the Road Warrior sm
Class and greater frequencies between city pairs. The Company believes
it has improved its brand awareness in each of its markets through its
direct advertising program that was modified in August 1997. The Company,
however, 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 improves upon its
brand awareness.
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:
<TABLE>
THREE MONTHS ENDED
------------------
SEPTEMBER 30,
--------------
1999 1998
---- ----
PERCENT OF PERCENT OF
---------- ----------
REVENUES CENTS PER ASM REVENUES CENTS PER ASM
-------- ------------- -------- -------------
<S> <C> <C> <C> <C>
Total operating revenues 100.0 % 9.61 CENTS 100.0 % 12.03 CENTS
========= ============= ======== ===========
Operating expenses:
Flying operations 18.7 % 1.80 cents 14.6 % 1.76 cents
Aircraft fuel 15.4 1.48 10.9 1.31
Maintenance 21.5 2.07 20.6 2.47
Passenger service 6.2 0.59 5.6 0.68
Aircraft and traffic servicing 15.9 1.53 12.4 1.50
Promotion and sales 15.7 1.51 17.5 2.10
General and administrative 3.0 0.29 3.7 0.44
Depreciation and amortization 3.3 0.31 2.0 0.24
-------- ------------- ------- -----------
Total operating expenses 99.7 9.58 87.3 10.50
Total other expense, net 0.0 0.00 2.2 0.27
Income tax benefit 0.2 0.02 0.0 0.00
-------- ------------- ------- -----------
Net income 0.5 % 0.05 CENTS 10.5 % 1.26 CENTS
======== =========== ======== ===========
Flying operations expenses include aircraft lease expenses, compensation
of pilots, expenses related to 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 41% from $4.7 million (approximately 15%
of operating revenues) for the quarter ended September 30, 1998 to $6.6
million (approximately 19% of operating revenues) for the quarter ended
September 30, 1999. The increase in flying operations expenses was
primarily the result of an increase in pilot pay, pilot overnight hotel
and meal per diem costs directly related to the 37% increase in block
hours flown. Aircraft rent increased as a result of the addition of the
Company's tenth and eleventh aircraft in the first half of 1999 and the
Company's twelfth and thirteenth aircraft in August and September,
respectively. Finally, the Company continues to incur significant pilot
training costs as a result of the introduction of the additional capacity
during the third quarter of 1999.
<PAGE>
Aircraft fuel expenses include the direct cost of fuel, taxes and the
costs of delivering fuel into the aircraft. Aircraft fuel expenses
increased 56% from $3.5 million (approximately 11% of operating revenues)
for the quarter ended September 30, 1998 to $5.5 million (approximately
15% of operating revenues) for the quarter ended September 30, 1999. The
37% increase in block hours flown resulted in approximately $1.3 million
in increased fuel costs. The average fuel cost per gallon (including
taxes and into-plane costs) increased $0.05 or 9% from $0.57 in the
quarter ended September 30, 1998 to $0.62 in the quarter ended September
30, 1999. 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 15% from $6.6 million (approximately 21% of operating
revenues) for the quarter ended September 30, 1998 to $7.6 million
(approximately 22% of operating revenues) for the quarter ended September
30, 1999. Maintenance expenses increased by approximately $200,000 for
provisions specifically related to the return of three aircraft during
the third and fourth quarters of 1999. The Company anticipates it will
be obligated to pay its lessor or overhaul facilities to meet contracted
aircraft return conditions. In addition, the Company incurred costs for
four unscheduled engine repairs resulting in an additional expense of
$500,000 in the third quarter of 1999. The Company expenses a rateable
portion of the estimated cost of future major scheduled maintenance for airframes,
engines, landing gears, and APUs each month based on flight hours flown.
As the Company has added additional aircraft and flight hours have
increased approximately 35%, these accrued costs have increased
accordingly. The costs of routine aircraft and engine maintenance are
charged to maintenance expense as incurred. Maintenance expenses
decreased on a cents per ASM basis from 2.47 cents for the quarter ended
September 30, 1998 to 2.07 cents for the quarter ended September 30, 1999.
This decrease in cents per ASM was a result of the 38% increase in ASMs
in 1999 and the associated economies of scale within the maintenance
department.
Passenger service expenses include flight attendant wages and benefits,
in-flight service, flight attendant training, uniforms and overnight
expenses, inconvenienced passenger charges and passenger liability
insurance. Passenger service expenses increased 21% from $1.8 million
(approximately 6% of operating revenues) for the quarter ended September
30, 1998 to $2.2 million (approximately 6% of operating revenues) for the
quarter ended September 30, 1999. The increase in passenger service
expenses was the result of an increase in flight attendant salaries,
overnight hotel and meal per diem costs and in-flight supplies, food and
beverages. Flight attendant salaries and associated overhead costs
increased mainly as a result of a 37% increase in block hours flown and
in-flight supplies, food and beverages increased as a result of the 32%
increase in passengers flown. These increases were offset by cost savings
from the reduction in the Company's passenger liability insurance rates.
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 41% from $4.0 million
(approximately 12% of operating revenues) for the quarter ended September
30, 1998 to $5.6 million (approximately 16% of operating revenues) for
the quarter ended September 30, 1999. The increase in aircraft and
traffic servicing expenses is a direct result of the 42% increase in
departures from 4,933 in the third quarter of 1998 to 6,989 in the third
quarter of 1999. The Company began employing its own under-wing
servicing in Kansas City in July 1998 and Minneapolis/St. Paul during
February 1999, and has realized savings from the decision to bring this
function in-house. Aircraft and traffic servicing expenses decreased
on a per turn basis from $812 (1.50 cents per ASM) for the quarter ended
September 30, 1998 to $807 (1.53 cents per ASM) for the quarter ended
September 30, 1999 as a result of the strategic moves described above
and the economies of scale from the increase in departures.
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, as well as advertising expenses and wages and benefits for
the marketing department. Promotion and sales expenses decreased 1%
from $5.6 million (approximately 18% of operating revenues) in the quarter
ended September 30, 1998 to $5.6 million (approximately 16% of operating
revenues) in the quarter ended September 30, 1999. Direct advertising
costs increased approximately $0.7 million, or 56%, for the third quarter
1999 compared with the third quarter 1998. The addition of two new
destination cities during 1999 contributed to the increase in direct
advertising expenses. The Company continues to rely on its direct
advertising methods to attract its passengers, and therefore, continues
to incur significant advertising expenses each month. However, the
Company continues to reduce its promotion and sales cost per passenger
as the Vanguard brand continues to be accepted in its key cities. The
average promotion and sales cost per passenger decreased $3.40 or 25%
from $13.43 in the quarter ended September 30, 1998 to $10.03 in the
quarter ended September 30, 1999.
<PAGE>
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 decreased 9% from $1.2 million (approximately 4% of operating
revenues) in the quarter ended September 30, 1998 to $1.1 million
(approximately 3% of operating revenues) in the quarter ended September
30, 1999. The decrease in general and administrative expenses in the
third quarter of 1999 as compared to 1998 is the result of decreases in
director and officer and general liability insurance costs and property taxes.
Depreciation and amortization expenses include depreciation and
amortization of aircraft modifications, ground equipment, computer and
reservation equipment, leasehold improvements and rotable parts
inventory. Depreciation and amortization expenses increased 76% from
$0.65 million (approximately 2% of operating revenues) in the quarter
ended September 30, 1998 to $1.1 million (approximately 3% of operating
revenues) in the quarter ended September 30, 1999. The increase in
depreciation expense is mainly the result of the increase in depreciable
rotable part inventories of approximately $1.0 million and aircraft
acquisition costs of $2.4 million since September 30, 1998.
Other expense, net, consists primarily of debt issuance cost amortization,
interest income and interest expense. The Company's renewal of the
letters of credit issued securing the Company's credit card processor
under new terms and the termination of its bank line of credit agreement
in January 1999 significantly reduced the amount of deferred debt issuance
amortization in the second quarter 1999 compared with the second quarter
1998. Under the previous arrangement, warrants vested quarterly in
amounts dependent upon the Company's exposure under the letter and line
of credit and the Company's stock price on the vesting date, as defined
in the respective agreements. The warrant's estimated fair value is
recorded as deferred debt issuance costs and related amortization expense
is recorded over the terms of the related guarantees. The Company's
improved cash position has reduced interest expense for the quarter ended
September 30, 1999 mainly as a result of the payoff of the line of credit
in August 1998 and the conversion of demand notes payable to related
parties to Common Stock during 1998.
NINE MONTHS ENDED SEPTEMBER 30, 1999 COMPARED TO THE SIX MONTHS ENDED
SEPTEMBER 30, 1998
Selected Financial and Operational Data:
</TABLE>
<TABLE>
NINE MONTHS ENDED SEPTEMBER 30,
-------------------------------
$ %
1999 1998 CHANGE CHANGE
---- ---- ------- ------
<S> <C> <C> <C> <C>
Revenue passengers carried 1,426,297 1,132,844 293,453 25.9 %
Revenue passenger miles -
RPMs (000s) 647,972 529,127 118,845 22.5 %
Available seat miles -
ASMs (000s) 936,617 775,589 161,028 20.8 %
Load factor 69.2 % 68.2 % 1.0 pts. 1.5 %
Departures 17,659 13,988 3,671 26.2 %
Average stage length 454 467 (13) (2.8) %
Miles flown (000s) 7,757 6,410 1,347 21.0 %
Block hours flown 25,594 20,896 4,698 22.5 %
Passenger yield $ 0.137 $ 0.139 $ (0.002) (1.4) %
Total revenue per ASM $ 0.100 $ 0.102 $ (0.002) (2.0) %
Operating expenses per ASM $ 0.098 $ 0.100 $ (0.002) (2.0) %
Operating cost per block hour $ 3,583 $ 3,708 $ (125) (3.4) %
Average fuel cost per gallon $ 0.59 $ 0.60 $ (0.01) (1.7) %
Average size of fleet for
period 10.7 9.0 1.7 19.1 %
</TABLE>
<PAGE>
Total operating revenues increased 19% from $78.9 million for the nine
months ended September 30, 1998 to $93.9 million for the nine months ended
September 30, 1999. This increase was primarily attributable to increases
in capacity and in the number of passengers offset by a reduction in
passenger yield. ASMs increased 21% from 776 million to 937 million.
The number of passengers increased 26% from 1.1 million during the nine
months ended September 30, 1998 to 1.4 million during the nine months
ended September 30, 1999. Passenger yield per RPM decreased 1%, from
13.9 cents through the third quarter of 1998 to 13.7 cents through the
third quarter of 1999. The increase in capacity is the result of
additional aircraft placed in service in March, April, August and
September 1999 offset by a 3% decrease in average stage length. RPMs
increased 23% from 529 million during the first nine months of 1998 to
648 million during the first nine months of 1999. This increase in RPM's
was the result of the 26% increase in the number of passengers coupled
with a 3% decrease in average stage length in the nine months ended
September 30, 1999 as compared to 1998. Load factor increased from 68.2%
for the nine months ended September 30, 1998 to 69.2% for the nine months
ended September 30, 1999. This increase was primarily the result of an
23% increase in the RPMs coupled with a 21% increase in capacity in the
nine months ended September 30, 1999 as compared to the nine months ended
September 30, 1998.
Other revenues include fees generated as a result of service charges from
passengers who change flight reservations, mail and liquor revenues.
Subject to certain restrictions, a customer may pay a $50 service charge
to use the value of the unused reservation for rebooking transportation
for a period of 180 days subsequent to the flight date. These service
charges were $3.9 million (approximately 4% of total operating revenues)
and $4.2 million (approximately 5% of operating revenues) for the nine
months ended September 30, 1999 and 1998, respectively. The decrease in
service fee revenue is a direct result of less passengers changing their
travel itineraries.
OPERATING EXPENSES
The following table sets forth the percentage of total operating revenues
represented by these expense categories:
<TABLE>
NINE MONTHS ENDED
-----------------
SEPTEMBER 30,
-------------
1999 1998
----- -----
PERCENT OF PERCENT OF
---------- ----------
REVENUES CENTS PER ASM REVENUES CENTS PER ASM
-------- ------------- --------- --------------
<S> <C> <C> <C> <C>
Total operating revenues 100.0 % 10.03 CENTS 100.0 % 10.17 CENTS
========= ============= ========= ===========
Operating expenses:
Flying operations 18.2 % 1.83 cents 17.2 % 1.75 cents
Aircraft fuel 13.9 1.40 13.3 1.36
Maintenance 21.0 2.10 20.0 2.03
Passenger service 5.9 0.59 6.6 0.67
Aircraft and traffic
servicing 16.0 1.60 16.5 1.68
Promotion and sales 16.0 1.61 18.4 1.87
General and administrative 3.2 0.32 4.0 0.41
Depreciation and
amortization 3.4 0.34 2.3 0.23
---------- ------------ -------- ------------
Total operating expenses 97.6 9.79 98.3 10.00
Total other expense, net 0.0 0.00 2.9 0.29
Income tax expense 0.1 0.01 0.0 0.00
---------- ------------ -------- ------------
Net income (loss) 2.3 % 0.23 CENTS (1.2) % (0.12) CENTS
========== ============ ======== ============
</TABLE>
<PAGE>
Flying operations expenses increased 27% from $13.6 million (approximately
17% of operating revenues) for the nine months ended September 30, 1998
to $17.1 million (approximately 18% of operating revenues) for the nine
months ended September 30, 1999. The increase in flying operations
expenses was primarily the result of an increase in pilot salaries and
related overhead costs directly related to the 22% increase in block
hours flown. In addition, aircraft rent increased as a result of the
1999 additions of the Company's tenth aircraft in March, eleventh
aircraft in April, twelfth aircraft in August, and thirteenth aircraft
in September. Finally, the Company incurred significant pilot training
costs as a result of the introduction of this additional capacity prior
to actual air service.
Aircraft fuel expenses increased 25% from $10.5 million (approximately
13% of operating revenues) for the nine months ended September 30, 1998
to $13.1 million (approximately 14% of operating revenues) for the nine
months ended September 30, 1999. The 23% increase in block hours flown
resulted in approximately $2.4 million of the increase in fuel costs.
Fuel cost per gallon (including taxes and into-plane costs) decreased
$0.01 or 2% from $0.60 in the nine months ended September 30, 1998 to
$0.59 in the nine months ended September 30, 1999. 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 increased 25% from $15.8 million (approximately 20%
of operating revenues) for the nine months ended September 30, 1998 to
$19.7 million (approximately 21% of operating revenues) for the nine
months ended September 30, 1999. Maintenance expenses increased as a
result of accelerating aircraft input dates for scheduled required major
maintenance, providing for costs overruns during three aircraft heavy
checks, providing for the return of three aircraft to a lessor in 1999 and
providing for unscheduled engine maintenance costs. As discussed in the
quarterly commentary, the Company experienced four unscheduled engine
repairs in the most recent quarter, which resulted in additional expenses
of $500,000. In addition, the Company provided approximately $400,000 to
meet aircraft return conditions of three leased aircraft. The cost
overruns during three scheduled airframe heavy checks mainly related to
unanticipated structural work performed by the Company's third party
vendor. The Company expenses a portion of the estimated cost of future
major scheduled maintenance for airframes, engines, landing gears, and
APUs each month based on flight hours flown. As flight hours have
increased approximately 24%, these accrued costs have increased
accordingly. The costs of routine aircraft and engine maintenance are
charged to maintenance expense as incurred. Maintenance expenses
increased on a cents per ASM basis from 2.03 cents for the nine months
ended September 30, 1998 to 2.10 cents for the nine months ended September
30, 1999. This increase in cents per ASM mainly resulted from the
increases in maintenance expense as described above.
Passenger service expenses increased 7% from $5.2 million (approximately
7% of operating revenues) for the nine months ended September 30, 1998 to
$5.6 million (approximately 6% of operating revenues) for the nine months
ended September 30, 1999. The increase in passenger service expenses was
the result of an increase in flight attendant salaries and related
overhead costs and in-flight supplies, food and beverages. Flight
attendant salaries and related overhead costs increased mainly as a
result of a 23% increase in block hours flown and in-flight supplies,
food and beverages increased as a result of the 26% increase in passengers
flown.
Aircraft and traffic servicing expenses increased 15% from $13.0 million
(approximately 17% of operating revenues) for the nine months ended
September 30, 1998 to $15.0 million (approximately 16% of operating
revenues) for the nine months ended September 30, 1999. The increase
in aircraft and traffic servicing expenses is the direct result of the
increase in departures from 13,988 for the nine months ended September
30, 1998 to 17,659 for the nine months ended September 30, 1999. The
Company began employing its own under-wing servicing in Kansas City in
July 1998 and Minneapolis/St. Paul during February 1999, and has realized
significant savings. Aircraft and traffic servicing expenses decreased on
a per turn basis from $931 (1.68 cents per ASM) for the nine months ended
September 30, 1998 to $849 (1.60 cents per ASM) for the nine months ended
September 30, 1999 as a result of the management decision described above
and the economies of scale from the increase in departures.
Promotion and sales expenses increased 4% from $14.5 million
(approximately 18% of operating revenues) in the nine months ended
September 30, 1998 to $15.1 million (approximately 16% of operating
revenues) in the nine months ended September 30, 1999. The Company
brought its outside reservation system in-house in April of 1998. The
<PAGE>
ongoing savings realized from this move were offset by increases in
advertising expenses through the nine months ended September 30, 1999 as
compared to the nine months ended September 30, 1998. The addition of two
new destination cities during 1999 increased direct advertising expenses.
The Company continues to rely on its direct advertising methods to attract
its passengers, and therefore, continues to incur significant advertising
expenses each month. However, the Company continues to reduce its
promotion and sales costs per passenger as the Vanguard brand continues
to be accepted in all of its cities. The average promotion and sales cost
per passenger decreased $2.22 or 17% from $12.79 in the nine months ended
September 30, 1998 to $10.57 in the nine months ended September 30, 1999.
General and administrative expenses decreased 5% from $3.2 million
(approximately 4% of operating revenues) in the nine months ended
September 30, 1998 to $3.0 million (approximately 3% of operating
revenues) in the nine months ended September 30, 1999. The decrease
in general and administrative expenses in 1999 as compared to 1998 is
the result of decreases in director and officer and general liability
insurance costs and property taxes.
Depreciation and amortization expenses increased 77% from $1.8 million
(approximately 2% of operating revenues) in the nine months ended
September 30, 1998 to $3.2 million (approximately 3% of operating
revenues) in the nine months ended September 30, 1999. The increase
in depreciation expense is mainly the result of the increase in
depreciable rotable part inventories of approximately $1.0 million
and aircraft acquisition costs of $2.4 million since September 30, 1998.
The Company's renewal of the letters of credit issued securing the
Company's credit card processor under new terms and the termination
of its bank line of credit agreement in January 1999 significantly
reduced the amount of deferred debt issuance amortization in 1999
compared with 1998. The warrant's estimated fair value is recorded as
deferred debt issuance costs and related amortization expense is
recorded over the terms of the related guarantees. The Company's
improved cash position has reduced interest expense for the nine months
ended September 30, 1999 mainly as a result of the payoff of the line
of credit in August 1998 and the conversion of demand notes payable to
related parties to Common Stock during 1998.
LIQUIDITY AND CAPITAL RESOURCES
During 1999, the Company generated sufficient cash flows from operating
activities to support its operations and meet its capital expenditure
requirements. Prior to March 1998 and since inception, the Company has
primarily financed its operations and met its capital expenditure
requirements with proceeds from sales of equity securities and the
issuance of debt primarily to its principal stockholders.
As of September 30, 1999, the Company has received net proceeds
from the sale of its equity securities aggregating
approximately $70.2 million.
During 1999, the Company has continued to experience a significant
increase over the previous year in advanced ticket sales, resulting in
an increase to its air traffic liability for unflown ticket sales. As a
result of the increased advanced bookings and the Company's
continued growth, the Company continues to show a
working capital deficit of $10.2 million as of September 30, 1999. In
January 1999, two principal stockholders of the Company agreed to renew
the two-year $4.0 million letter of credit facility in order to secure a
portion of the Company's exposure to its credit card processor. The
letters of credit expire in January 2001.
Currently, the Company must deposit cash into a restricted cash account to
provide for the Company's credit card exposure in excess of $4.0 million.
To the extent that exposure exceeds $4.0 million, the Company must deposit
cash from ticket sales as collateral to secure the Company's credit card
processor. As of November 5, 1999 the Company's
credit card exposure was approximately $10.3 million. The
Company funded the credit card exposure in excess of $4.0 million with
available cash on hand. The Company estimates that its credit card
exposure will range between $8.0 to $12.0 million through the end of the
year when the balance should decrease due to expected seasonality. The
Company's existing credit card facility limits its ability to utilize
cash generated from operations. For example, during the nine months ended
September 30, 1999, $5.0 million of cash generated from operating
activities was withheld by the Company's credit card processing bank to
provide additional collateral against the Company's increased advance
<PAGE>
ticket sales. The Company would have increased cash flows from operations
by approximately $5.0 million had this restrictive credit card collateral
facility not been required during the nine months ended September 30, 1999.
As a result, the Company plans to renegotiate its collateral requirements
during the fourth quarter of 1999. There can be no assurance that the
Company will be successful with these negotiations or that the Company
will be able to reduce its collateral requirements. Currently, any cash
utilized as collateral is refunded by the credit card processor, on a
daily basis, when the Company's exposure falls below the previously
calculated exposure or $4.0 million, whichever is greater.
The Company estimates that scheduled heavy maintenance of its existing
aircraft fleet through September 30, 2000 will cost $10.6 million, of
which $2.7 million has been funded from existing supplemental rent
payments recoverable from aircraft lessors. The Company will fund a
significant portion of this future scheduled heavy maintenance obligations
in the form of supplemental rent payments to be paid over the next 12
months as required by the respective lease agreements. In addition, the
Company expects to expend $4.7 million on various capital expenditures in
the next year, which are primarily related to improvements for existing or
future aircraft, increased aircraft parts inventory levels and continued
improvements to its in-house computer systems.
The Company continues to review its financing alternatives in order to
purchase or lease additional aircraft under suitable terms. The Company
accepted delivery on its twelfth and thirteenth aircraft in September 1999 and
October 1999, respectively. In addition, in November 1999, the Company
signed a letter of intent for six additional Boeing 737-200 advanced
aircraft for replacement and growth purposes to be delivered
over the next fourteen months. The Company must deposit with the
lessor an aggregate amount of approximately $1.3 million for these six
aircraft. In addition, the Company is currently
in discussion with various aircraft lessors regarding the placement of
additional aircraft for the years 2000 and 2001. The Company's current
cash balance is sufficient to provide for the lease deposit
requirements for these six additional aircraft and for the additional deposit
requirements for anticipated fleet growth in 2000 and 2001.
Historically, the Company has been required to deposit between $140,000
and $300,000 per aircraft depending on the specific terms
negotiated in the lease.
In March 1999, the Company recognized the Vanguard Airline Pilots
Association as the bargaining unit on behalf of
its pilots. The resulting financial impact of union representation is not
known at this time as a final agreement has not been reached.
The Company has generally generated positive cash flows from operations
since March 1998 and expects that its existing cash balances along with
the improved operating results will be sufficient cash to support its
operations through September 30, 2000. The Company plans to continue to
implement certain actions designed
to achieve long-term profitability and improve its capital resources.
Management's plans to achieve long - term profitability
include increased focus on the price-sensitive business
traveler, pricing strategies designed to maximize passenger revenue and
continued focus on cost savings programs. There can be no assurance that
its efforts will be successful.
The Company is evaluating options on raising additional capital or issuing
debt during late 1999 and 2000. The Company's success in implementing
actions designed to achieve long-term profitability and its ability to
operate at profitable levels will determine if the Company will be able
to raise additional capital or secure debt financing. There can be no
assurance that the Company's necessary working capital requirements to
expand operations will be available on acceptable terms, or at all.
OTHER MATTERS
YEAR 2000 COMPLIANCE
Older computers were programmed to use a two-digit code for the date
entry rather than a four-digit code. For example, the date November
17, 1970 would be entered as "11/17/70" rather than "11/17/1970." The
decision to use two digits instead of four was based largely on cost-
reduction considerations and the belief that the code would no longer
be used at the millennium. Nevertheless, coding conventions have not
changed, and on January 1, 2000, computers may read the digits "00" as
denoting the year 1900 rather than 2000. At the least, this could result
in massive quantities of incorrect data. At worst, it could result in
the total or partial failure of time sensitive computer systems and
software.
<PAGE>
THE COMPANY'S YEAR 2000 ISSUES. The Company began operations in December
1994; its operations depend predominantly on third party computer
systems. Because of the Company's limited resources during its start-up,
the most cost-effective way to establish its computer systems was to
outsource or to use manual systems. Internal systems developed and any
software acquired are limited and were designed or purchased with the
Year 2000 taken into consideration.
Management has neared the completion of the modification of the Company's
information technology to recognize the Year 2000 and the conversion or
purchase of critical data process systems. The Company's new reservations
software installed in the third quarter of 1997 is Year 2000 compliant.
In addition, the Company purchased a new revenue management system in
February 1998 that is Year 2000 compliant. The Company's current
financial reporting software is Year 2000 compliant. The Company has
purchased a new financial software system and expects to begin the
financial software conversion during early 2000. The Company believes
these three systems are critical data processing systems.
Secondary systems that the Company has completed its Year 2000 assessment
on include, but are not limited to, the Company's telephone switch
software and equipment at its Reservations Center and corporate
headquarters, intranet network systems, flight operations and tracking
software and maintenance inventory tracking system. Management has
completed the modification on these systems and all are Year 2000
compliant. In July and October 1999, the Company completed the
installation of Year 2000 compliant telephone switch software and
equipment at its Reservation Center and Corporate Headquarters.
The Company relies on third parties that provide goods and services that
are imperative to the Company's operations including, but not limited to,
the FAA, the DOT, local airport authorities, utilities, communication
providers, credit card processors and fuel suppliers. The Company
continues to monitor each of these entities, and has initiated formal
communications with these third party service providers to determine
their Year 2000 readiness. There can be no assurance that the systems
of such third parties on which the Company's business relies (including
those of the FAA) will be modified on a timely basis. The Company's
business, financial condition and results of operations could be
materially affected by the failure of its equipment or systems or those
operated by other parties to operate properly beyond 1999.
While the Company believes it is taking all appropriate steps to assure
Year 2000 compliance, it is dependent on key third party business and
governmental partners' compliance to some extent. The Year 2000 problem
is pervasive and complex, as virtually every computer operation will be
affected in some way. Consequently, no assurance can be given that Year
2000 compliance can be achieved without a material cost by these outside
parties. The Company has utilized existing resources and has not incurred
any significant costs to implement its Year 2000 project to date and
the total remaining cost of the Year 2000 project is expected to be
immaterial and will be funded through cash from operations. The costs
and the dates on which the Company anticipates it will complete the
Year 2000 project are based on management's best estimates and estimates
received in writing from applicable third parties. There can be no
guarantee that these estimates will be achieved and actual results could
differ materially from those anticipated.
QUANTITATIVE AND QUALITATIVE DISCLOSURE ABOUT MARKET RISK
MARKET RISK SENSITIVE INSTRUMENTS AND POSITIONS
The risk inherent in the Company's market risk sensitive position is the
potential loss arising from an adverse change in the price of fuel as
described below. The sensitivity analysis presented does not consider
either the effects that such an adverse change may have on overall
economic activity or additional actions management may take to mitigate
its exposure to such a change. At the present time, management does not
utilize fuel price hedging instruments to reduce the Company's exposure to
fluctuations in fuel prices. Actual results may differ.
The Company's earnings are affected by changes in the price and
availability of aircraft fuel. Market risk is estimated as a hypothetical
10 percent increase in the average cost per gallon of fuel over the past
twelve months. Based on actual fuel usage over the past twelve months,
such an increase would have resulted in an increase to aircraft fuel
expense of approximately $1.6 million over the past twelve months.
Comparatively, based on projected fuel usage over the next twelve months,
such an increase would result in an increase to aircraft fuel expense of
approximately $2.4 million over the next twelve months. The increase in
exposure to fuel price fluctuations during the next twelve months is due
to the Company's plan to fly its increased aircraft fleet, resulting in
additional gallons consumed.
<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 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. Since the Company's inception on April 25, 1994 and until 1997
the Company incurred significant losses from operations. In 1998, the
Company recorded income from operations of $1.5 million and generated
positive cash flow from operations of $6.0 million. As of September 30,
1999 the Company had an accumulated deficit of $69.0 million, a working
capital deficit of $10.2 million and a positive stockholders' equity of
$8.7 million. The Company's limited
operating history makes the prediction of future operating results
difficult. There can be no assurance that the Company will be able to
sustain profitable operations.
AVAILABILITY OF WORKING CAPITAL AND FUTURE FINANCING RESOURCES. The
airline business is extremely capital intensive, including, but not
limited to, lease payment obligations and related maintenance requirements
for existing or additional aircraft. Historically, the Company's
continued operations have been dependent upon equity and debt financing
from its principal stockholders. There can be no assurance that the
Company's principal stockholders will provide working capital for the
Company's operations if the Company is unable to continue to generate
positive cash flow from its 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;AIRPORT ACCESS. The Company is subject to
intense competition on all of its routes. Under the Deregulation Act,
domestic certificated airlines may enter and exit domestic markets and
set fares without regulatory approval. All city-pair domestic airline
markets, except for those thap are slot-controlled, are generally open
to any domestic certificated airline. The Company operates in various
congested airports, such as Chicago-Midway, where there is a limited gate
space; this may limit the Company's ability to expand or maintain
certain levels of service at particular cities. Airlines compete primarily
with respect to fares, schedules (frequency and flight times), destinations,
frequent flyer programs and type (jet or propeller) and size of aircraft.
The Company competes with various other airlines on its routes and expects
to compete with other airlines on any future routes. Most of the
Company's competitors are larger and have greater name recognition and
financial resources than the Company. In response to the Company's
commencement of service in a particular market, competing airlines have,
at times, added flights and capacity and lowered their fares in the
market, making it more difficult for the Company to achieve 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 in that market, in addition
to restricting its ability to obtain adequate gate space at certain airports.
CONSUMER CONCERN ABOUT OPERATING SAFETY AT NEW-ENTRANT CARRIERS OR TYPE OF
AIRCRAFT. Aircraft accidents or other safety-related issues involving
any carrier may have an adverse effect on airline passengers' perceptions
regarding the safety of new-entrant, low-fare carriers. 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 Boeing
737s or other aging aircraft could have a material adverse effect on the
Company's business, financial condition and results of operations, even
though the Company itself may not experience any such problems with its
jet aircraft.
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
15.4% of the Company's operating expenses for the quarter ended September
<PAGE>
30, 1999. The Company's average cost per gallon for the past three years
have been $0.79 per gallon in the year ended December 31, 1996, $0.74 per
gallon in the year ended December 31, 1997, $0.58 per gallon in the year
ended December 31, 1998, and $0.59 for the nine months ended September 30,
1999. Jet fuel costs are subject to wide fluctuations as a result of
sudden disruptions in supply. The Company cannot predict the effect on
the future availability and cost of jet fuel. The Boeing 737-200 jet
aircraft is relatively fuel inefficient compared to newer aircraft.
Accordingly, a significant increase in the price of jet fuel will result
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, an increase in the cost of jet fuel will be immediately passed
through to the Company by suppliers. 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 is
able to raise selected fares, the Company has experienced reduced margins
on sales prior to such fare increases. In addition to increases in fuel
prices, a shortage of supply will also 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
experiences 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, would have a material adverse effect of the
Company's business, financial condition and results of operations.
LIMITED NUMBER OF AIRCRAFT; AIRCRAFT ACQUISITIONS. The Company's fleet
consists of thirteen aircraft 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 financial performance. The market for
leased aircraft fluctuates based on certain worldwide macroeconomic
factors. On November 9, 1999, the Company annouched that it signed
a Letter of Intent to lease six Boeing 737-200 aircraft. The Company
expects to take delivery of four of the six in the first quarter of Year 2000.
There can be no assurance that the Company will be able to
lease additional aircraft on satisfactory terms or at the times needed.
The inability to obtain suitable lease terms or delivery delays could cause
the Company to temporarily reduce its fleet size, which would have an
adverse effect on the Company's business, financial condition and results
of operations.
GOVERNMENT REGULATION. The Company is subject to the Aviation Act, under
which 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 and new-entrant
airlines, such as the Company. The Company's operations are subject to
constant review by the FAA.
Additional rules and regulations have been proposed from time to time in
the last several years and that, if enacted, could significantly increase
the cost of airline operations by imposing substantial additional
requirements or restrictions on airline operations. There can be no
assurances that any of these rules or regulations would not have a
material adverse effect on the Company's business, financial condition
and results of operations.
<PAGE>
The DOT and FAA also enforce federal law with respect to aircraft noise
compliance requirements. The Company's current fleet meets the current,
Stage III noise compliance requirements. The Company plans to return
its two remaining Stage II aircraft in mid-December 1999 upon the
expiration of their leases and will then meet the 100% Stage III
requirements.
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.
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.
b. None.
c. None
d. 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.
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits.
10.20 Employment Agreement, dated June 15, 1999 between the Registrant
and Robert J. Spane.
10.36 Aircraft Lease Agreement (MSN 22121), dated as of July 22, 1999
between Aircraft 22121, Inc. and the Registrant.
10.37 Aircraft Lease Agreement (MSN 22120), dated as of August 25, 1999
between Aircraft 22120, Inc. and the Registrant.
27 Financial Data Schedule
(b) Reports on Form 8-K
None.
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 12, 1999
- --------------------
Robert J. Spane, President and Chief Executive
Officer
\S\ WILLIAM A. GARRETT November 12, 1999
- ----------------------
William A. Garrett, Vice President - Finance
and Chief Financial Officer
(Principal Financial and Accounting Officer)
<PAGE>
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is
made and entered into effective as of the 15th day of
June, 1999 (the "Effective Date") by and between Vanguard Airlines, Inc.,
a Delaware corporation (the "Company") and Robert J. Spane, an individual
("Employee").
R E C I T A L S:
A. The Company is engaged in the business of owning and
operating an air carrier certificated by the U.S. government to
engage in the provision of air transportation services in
the common carriage of persons, property and mail (the "Company
Business"). The Company is based in Kansas City, Missouri and
provides scheduled passenger service in the United States.
B. The Company hereby agrees to employ Employee and
Employee hereby agrees to accept such employment engagement with
the Company in accordance with the terms and conditions set forth
in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises
and covenants as contained herein, the parties hereto, intending
to be legally bound, agree as follows:
1. EMPLOYMENT.
Subject to the terms and conditions hereinafter set forth,
the Company hereby agrees to employ Employee, and Employee hereby
agrees to be employed by Company, during the two year period (the
"Employment Term") beginning on June 16, 1999 (the "Commencement
Date"), and ending on June 15, 2001. The Employment Term may be
terminated pursuant to the provisions of Section 4 or Section 5
hereof.
2. DUTIES.
Employee shall be employed in the capacity of Chairman of
the Board, President and Chief Executive Officer of the Company.
Employee shall have such duties as may reasonably be assigned to
him by the Board of Directors of the Company. Employee shall
perform such duties diligently and to the best of his ability,
and shall comply with the Company's business conduct policies as
in effect from time to time. Employee's responsibilities
include, but are not limited to, the following actions: (a)
supervise, operate, and manage the overall operations of the
Company Business, including by way of illustration but not
limitation, decisions regarding (i) airline schedules and routes;
(ii) regulation of the Company Business by governmental
authorities, (iii) aircraft and other equipment and real estate
acquisitions and/or leases, (iv) formulation, implementation, and
administration of strategies, policies, and practices, (v)
formulation, implementation, and administration of budgets,
business and financial plans, (vi) hiring, firing, and
supervising employees and consultants, and (vii) setting
compensation and benefit programs for employees. Except as
otherwise set forth herein, during the Employment Term, Employee
shall devote his entire working time, attention and energy to the
business of the Company, and shall not be engaged in any other
business activity that, in any significant way, conflicts with or
interferes with Employee's performance of his duties hereunder,
except as authorized by the Board of Directors of the Company.
3. COMPENSATION AND BENEFITS.
SALARY. During the Employment Term, the Company shall pay
Employee for his services hereunder a base salary at the
rate of $250,000.00 per annum for the first year of
employment and $300,000.00 per annum, for the second year of
employment subject further to upward adjustment in
accordance with the Company's salary review practices and
procedures in effect from time to time. Such salary shall
be payable semi-monthly in accordance with the regular
payroll policies of the Company in effect from time to time.
In addition, Employee shall participate in the following
bonus plan:
A Yearly Bonus of 100% of the base salary is available.
This Bonus will be paid at the end of each
calendar year, starting at Dec.31, 1999, for the
performance achieved in 1999.
The Bonus will be paid based on comparing the
yearly actual operating profit with the yearly
planned operating profit.
To receive 100% of the bonus the Company must
achieve its planned operating profit
For every 2% of actual operating profit achieved
above the planned operating profit, an additional
10% of the bonus will be paid. This extra bonus
will be capped at an additional 100% of the yearly
bonus.
If the actual operating profit does not at least
equal the planned operating profit, a partial
bonus will be paid as follows. The bonus will
begin to be applied if the actual operating profit
is at least 80% of the planned operating profit.
For every 2% increase in the actual operating
profit above 80%, 10% of the Basic Yearly Bonus
will be paid. For example, if 90% of the planned
operating profit is achieved, 50% of the Basic
Yearly Bonus will be paid.
(A) BENEFITS. During the Employment Term, Employee shall be
entitled to participate in, to the extent Employee is eligible
under the terms thereof, all benefit plans and programs that are
generally provided from time to time by the Company to its
executive personnel, including an incentive compensation plan, a
pension or profit sharing plan, a stock purchase plan, a bonus
plan, a group benefit plan and a medical plan. Subject to the
rights of Employee set forth in Sections 4 and 5 hereof, nothing
herein shall preclude the Company from terminating or amending
any employee benefit plan or program.
(B) OPTIONS. The Company hereby agrees to grant Employee
options to purchase 440,557 shares of Common Stock (2% of the
Company's fully diluted stock), par value $0.001 per share, of
the Company to Employee (the "Employee Options"). The terms of
the grant of the Employee Options to Employee shall be as
follows:
(i) The exercise price for the Employee Options shall
be the share price on Jun 16, 1999 (the "Exercise
Price");
(ii) Payment of the exercise price per share is due in
full upon exercise of all or any part of each
installment that has accrued
(iii) In the event this Agreement is terminated
before the end of the Employment Term for any of
the reasons set forth in Section 4(e), all
unvested options shall lapse and become void; and
(iv) The Employee Options shall vest as follows:
(A) in equal quarterly increments during the Employment Term
commencing with the commencement of employment of Employee
with the Company, with such vesting to be effective
upon the last day of each calendar quarter;
(B) one-half of any "unvested" Employee Options shall vest
upon the death or permanent disability of Employee;
(C) all of the unvested options shall vest upon the merger of
the Company into or with another person, unless
(X) the Company is the surviving entity and
(Y) this Agreement remains in full
force and effect; or
(D) all of the unvested options shall vest upon the sale of all
or substantially all of the assets or stock of the Company
to another person.
(E) The Term of all options is to be 10 years, including
previously vested stock options received for
employment from June 15, 1997 through June 16, 1999.
(d)EXPENSE REIMBURSEMENT. The Company shall reimburse
Employee or directly pay all of the reasonable expenses
incurred by Employee in connection with the scope of his
assignment as set forth in this Agreement, including by way
of illustration but not limited, as follows:
(i) all ordinary and necessary travel, lodging,
entertainment, and related expenses;
(ii) the cost of renting an apartment as a
temporary living expense in Kansas City,
Missouri and leasing or renting a car in Kansas City,
Missouri; and
(iii) the cost to move Employee's family and
household goods to the Kansas City area.
(iv) Regardless of how, when, or why Employee leaves
the Company, the expenses associated with
moving Employee and Employee's family including all
household goods to San Diego, California
shall be paid by the Company.
The foregoing terms regarding the Employee Options shall, if the
parties hereto mutually so agree, be set forth in a separate
agreement (the "Stock Option Agreement"). The Stock Option
Agreement shall contain all usual and customary provisions,
including the foregoing terms.
4. TERMINATION OF ENGAGEMENT.
This Agreement shall be terminated and the employment
relationship between the Company and Employee shall cease upon
the occurrence of any of the following events:
(a) by Employee for any reason, upon 30 days prior
written notice;
(b) by the Company for any reason, upon 30 days prior
written notice;
(c) by any party upon the expiration of the Employment
Term;
(d) by the Company upon the death or permanent
disability of Employee
(e) by the Company for "Cause," which for purposes of
this Section 4 shall mean any of the following: (i)
Employee's breach of or failure to comply with or observe
any of the material terms, conditions or agreements
contained in this Agreement, which breach or failure to
comply has not been cured within 30 days following written
notice by the Company to Employee setting forth in detail
the specific nature of such breach or failure to comply, or
if such breach or failure to comply cannot be cured within
such 30 day period, Employee has not, (A) within such 30 day
period, commenced actions to cure such breach or failure to
comply and diligently pursued such actions and (B) actually
cured such breach or failure to comply within 90 days
following such initial written notice by the Company to
Employee, (ii) Employee shall be adjudged by a court of
competent jurisdiction as guilty of (A) any willful or
grossly negligent act which causes material harm to the
Company, (B) any criminal act which causes material harm to
the Company, (C) any act involving moral turpitude which
causes material harm to the Company, or (D) any fraud upon
the Company, or (iii) Employee shall be guilty of habitual
absenteeism, chronic alcoholism or other form of chronic
addiction.
5. TERMINATION OBLIGATIONS OF THE COMPANY.
In the event of termination of this Agreement by
the Employee under Section 4(a) because of
Employee's desire for any reason, the Company
shall have the following obligations to Employee:
(a) One half of all unvested stock will immediately vest
(b) Employee will receive six month's salary
In the event of termination of this Agreement by
the Company under Section 4(b) because of the
Company's desire for any reason, the Company shall
have the following obligations to Employee:
(a) All unvested stock options immediately vest
(b) Employee will receive two year's salary
(c) Employee will be granted options on an additional 1%
of the Company's stock. Strike price to be the
price on the day of termination
(d) Employee will be offered a 5 year consulting
contract at $20,000.00 per month
(e) Employee will be offered a seat on the
Board of Directors
(f) Any unpaid portion of the Employee salary earned
through the date of termination shall be
paid by the Company to Employee
(g) Any unreimbursed expenses owed by the Company
to Employee for expenses incurred through the
date of termination shall be
paid by the Company to Employee
In the event of termination of this Agreement by
the Company under Sections 4(c), because of the
expiration of the Employment Term, The Company
shall have the following obligations to the
Employee:
(1) Any unpaid portion of the Employee's salary and
bonus earned
through the date of termination shall be paid by the
Company to
Employee;
(2) Any unreimbursed expenses owed by the Company to
Employee for expenses incurred through the date
of termination shall be
paid by the Company to Employee;
(3) Employee Options shall be fully vested
(4) Employee shall be offered full-time employment with the
Company upon mutually satisfactory terms
usual and customary in
the airline industry for companies of comparable
operations as
the Company; provided, however, that the Company
and Employee
shall enter into a written employment agreement
(the "Spane
Employment Agreement") which shall, for
purposes of illustration
but not limitation, contain the following provisions:
(1) Employee shall have the officer
title of Chairman, Chief
Executive Officer, President, and member of
the Board of
Directors of the Company;
(2) He shall have duties at least as
expansive as the Services
set forth in Section 2 of this Agreement;
(3) He shall have an annual base salary
and annual bonus as
mutually agreed upon and usual and customary
in the airline
industry for companies of comparable operations
as the Company;
(4) A term and severance arrangement as
mutually agreed upon and
usual and customary in the airline
industry companies of
comparable operations as the Company.
(5) If the Employee declines full time
employment, Employee will
be offered a 5 year consulting contract
at $20,000.00 per month
and a seat on the Board of Directors.
In the event of termination of this Agreement by
the Company under Section 4(d), death or permanent
disability of the Employee, the Company shall have
the following obligations to Employee:
(i) Any unpaid portion of the Employee's salary
earned through
the date of death or permanent disability shall
be paid by the
Company to Employee or his survivors;
(ii) Any unreimbursed expenses owed by the
Company to Employee
for expenses incurred through the date
of death or permanent
disability shall be paid by the Company
to Employee or his
survivors.
(iii) One-half of those shares of the
Employee Options that
have not vested as of the date of termination
shall lapse and
become void and the remaining one-half of
the Employee Options
shall fully vest
In the event of termination of this Agreement by
the Company under Section 4(e), by the Company for
"Cause," the Company shall have the following
obligations to Employee:
(1) Any unpaid portion of the Employee's salary earned through
the date of termination shall be paid by the Company
to Employee
(2) Any unreimbursed expenses owed by the Company to Employee
for expenses incurred through the date of termination shall be
paid by the Company to Employee
(3) Employee options that have not vested at the date of
termination shall lapse and become void
Regardless of how, when, or why Employee leaves the Company,
Employee and his immediate family will receive unlimited life
time confirmed travel on Vanguard Airlines or the Successor
Company
6. REGISTRATION RIGHTS.
Employee shall, with respect to the shares received upon
exercise of the Employee Options be granted unlimited piggy-back
registrations, with any cut-backs of shares to be registered
pursuant to the applicable registration statement to be done on a
pro-rata basis among all of the Sellers of Common Stock of the
Company pursuant to the applicable registration statement. A
specific Registration Rights Agreement containing all usual and
customary provisions shall be entered into among Employee and the
Company.
7. INDEMNIFICATION.
Neither the Company or Employee shall be liable for any of
the debts, liabilities or obligations of the other. Accordingly,
the Company will indemnify Employee and Employee will indemnify
the Company, and each will hold the other harmless from and
against any and all loss, cost, damage injury or expense
(including court costs and reasonable attorneys' fees) whatsoever
and howsoever arising which Employee or the Company (as the case
may be) or any of their respective agents, successors or assigns
incurs as a proximate result of (a) Employee or the Company (as
the case may be) being held liable for any debt, liability or
obligation of the Company or Employee (as the case may be) or (b)
any breach of this Agreement by the Company or Employee (as the
case may be).
In Employee's rendering of the Services hereunder and in his
capacity as officer, director, employee of the Company, the
Company shall, as and to the extent permitted by the General
Corporation Law of Delaware, indemnify Employee and hold Employee
harmless from and against any and all loss, cost, damage, injury
or expense (including court costs and reasonable attorneys' fees)
whatsoever and howsoever arising which Employee incurs relating
to his action under this Agreement and the status of Employee as
officer, director, employee of the Company. In addition, the
Company shall include Employee as beneficiary and covered person
in the Company's insurance policy to protect Employee relating to
his status as officer, director, employee, independent
contractor, and/or agent of the Company.
8. NOTICE.
All notices, requests, demands and other communications
hereunder shall be deemed duly given if delivered by hand or if
mailed by certified or registered mail with postage prepaid as
follows:
If to the Company:
Vanguard Airlines, Inc.
7000 Squibb Road, 3rd Floor
Mission, KS 66202
Attention: Corporate Secretary
If to the Employee:
Robert J. Spane
333 W. 46th Terrace
Apt. # 201
Kansas City, MO 64112
or to any other address as either party may provide to the other
in writing.
10. ASSIGNMENT.
This Agreement is personal and not assignable by the
Employee but it may be assigned by the Company without notice to
or consent of the Employee to, and shall thereafter be binding
upon enforceable by any other person which shall acquire or
succeed to substantially all of the business or assets of the
Company (and such person shall be deemed included in the
definition of the "Company" for all purposes of this Agreement)
but it is not otherwise assignable by the Company.
IN WITNESS WHEREOF, the Company and Employee have each
caused this Agreement to be duly executed in duplicate by its
respective duly authorized officer and each of the parties hereto
has executed this Agreement on the date and year first above
written.
WITNESS/ATTEST:
COMPANY:
VANGUARD AIRLINES,INC.
On Behalf of the Board of Directors,
By:
-------------------------------
Name:
EMPLOYEE:
ROBERT J. SPANE
----------------------------------
Robert J. Spane
________________________________________________________________
THIS LEASE AGREEMENT HAS BEEN EXECUTED IN SEVERAL COUNTERPARTS.
TO THE EXTENT, IF ANY, THAT THIS LEASE AGREEMENT CONSTITUTES
CHATTEL PAPER (AS SUCH TERM IS DEFINED IN THE UNIFORM COMMERCIAL
CODE AS IN EFFECT IN ANY APPLICABLE JURISDICTION), NO SECURITY
INTEREST IN THIS LEASE AGREEMENT MAY BE CREATED THROUGH THE
TRANSFER OR POSSESSION OF ANY COUNTERPART OTHER THAN THE ORIGINAL
EXECUTED COUNTERPART CONTAINING THE RECEIPT EXECUTED BY LESSOR
OR, IF LESSOR HAS ASSIGNED ITS RIGHTS TO A THIRD PARTY IN
ACCORDANCE WITH THIS LEASE AGREEMENT, SUCH THIRD PARTY ON THE
SIGNATURE PAGE OF THIS LEASE AGREEMENT.
________________________________________________________________
DATED: July 22, 1999
AIRCRAFT 22121, INC.
(Lessor)
- and -
VANGUARD AIRLINES, INC.
(Lessee)
___________________________________
LEASE AGREEMENT 22121
- relating to -
Boeing 737-230 Aircraft
Manufacturers Serial No: 22121
U.S. Registration Mark N123NJ
_____________________________________
FELTMAN, KARESH, MAJOR & FARBMAN,
Limited Liability Partnership
Carnegie Hall Tower
152 West 57th Street
New York, New York 10019
<PAGE>
TABLE OF CONTENTS
CLAUSE PAGE
1. DEFINITIONS and INTERPRETATION. . . . . . . . . . . . . . . . . . . .1
1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . .1
1.2 Interpretation. . . . . . . . . . . . . . . . . . . . . . . . 19
2. REPRESENTATIONS and WARRANTIES. . . . . . . . . . . . . . . . . . . 19
2.1 Lessee's Representations and Warranties . . . . . . . . . . . 19
2.2 Lessee's Further Representations and Warranties . . . . . . . 21
2.3 Repetition. . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.4 Lessor's Representations and Warranties . . . . . . . . . . . 22
2.5 Repetition. . . . . . . . . . . . . . . . . . . . . . . . . . 23
3. CONDITIONS PRECEDENT. . . . . . . . . . . . . . . . . . . . . . . . 23
3.1 Lessor's Documentary Conditions Precedent . . . . . . . . . . 23
3.2 Lessor's Other Conditions Precedent . . . . . . . . . . . . . 25
3.3 Lessor's Waiver . . . . . . . . . . . . . . . . . . . . . . . 25
3.4 Lessee's Conditions Precedent . . . . . . . . . . . . . . . . 25
3.5 Lessee's Waiver . . . . . . . . . . . . . . . . . . . . . . . 26
4. COMMENCEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
4.1 Leasing . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
4.2 Delivery. . . . . . . . . . . . . . . . . . . . . . . . . . . 27
4.3 Delayed Delivery. . . . . . . . . . . . . . . . . . . . . . . 29
4.4 Acceptance and Risk . . . . . . . . . . . . . . . . . . . . . 29
5. PAYMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
5.1 Security Deposit; Letter of Credit. . . . . . . . . . . . . . 30
5.2 Rental Periods. . . . . . . . . . . . . . . . . . . . . . . . 32
5.3 Basic Rent. . . . . . . . . . . . . . . . . . . . . . . . . . 32
5.4 Additional Rent . . . . . . . . . . . . . . . . . . . . . . . 32
5.5 Lessor's Moneys . . . . . . . . . . . . . . . . . . . . . . . 33
5.6 Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . 34
5.7 Gross-up. . . . . . . . . . . . . . . . . . . . . . . . . . . 35
5.8 Taxation. . . . . . . . . . . . . . . . . . . . . . . . . . . 35
5.9 Information . . . . . . . . . . . . . . . . . . . . . . . . . 36
5.10 Taxation of Indemnity Payments. . . . . . . . . . . . . . . . 36
5.11 Default Interest. . . . . . . . . . . . . . . . . . . . . . . 37
5.12 Contest . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
<PAGE>
5.13 Absolute. . . . . . . . . . . . . . . . . . . . . . . . . . . 38
6. MANUFACTURER'S WARRANTIES . . . . . . . . . . . . . . . . . . . . . 39
6.1 Assignment. . . . . . . . . . . . . . . . . . . . . . . . . . 39
6.2 Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . . 40
6.3 Parts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
6.4 Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . 41
7. LESSOR'S COVENANTS and DISCLAIMERS. . . . . . . . . . . . . . . . . 41
7.1 Quiet Enjoyment . . . . . . . . . . . . . . . . . . . . . . . 41
7.2 Lessor's Maintenance Contribution . . . . . . . . . . . . . . 41
7.3 Lessor's Engine Maintenance Contribution. . . . . . . . . . . 44
7.4 Lessor's AD Cost Sharing Contribution . . . . . . . . . . . . 45
7.5 Registration and Filings. . . . . . . . . . . . . . . . . . . 46
7.6 Agreed Maintenance Performers . . . . . . . . . . . . . . . . 46
7.7 Exclusion . . . . . . . . . . . . . . . . . . . . . . . . . . 46
7.8 Lessee's Waiver . . . . . . . . . . . . . . . . . . . . . . . 47
7.9 Lessee's Confirmation . . . . . . . . . . . . . . . . . . . . 47
8. LESSEE'S COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . 47
8.1 Duration. . . . . . . . . . . . . . . . . . . . . . . . . . . 47
8.2 Information . . . . . . . . . . . . . . . . . . . . . . . . . 47
8.3 Lawful and Safe Operation . . . . . . . . . . . . . . . . . . 50
8.4 Taxes and Other Charges . . . . . . . . . . . . . . . . . . . 51
8.5 Sub-Leasing . . . . . . . . . . . . . . . . . . . . . . . . . 52
8.6 Inspection. . . . . . . . . . . . . . . . . . . . . . . . . . 54
8.7 Protection of Title . . . . . . . . . . . . . . . . . . . . . 54
8.8 General . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
8.9 Records . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
8.10 Registration and Filings. . . . . . . . . . . . . . . . . . . 58
8.11 Maintenance and Repair. . . . . . . . . . . . . . . . . . . . 58
8.12 Removal of Engines and Parts. . . . . . . . . . . . . . . . . 60
8.13 Installation of Engines and Parts . . . . . . . . . . . . . . 60
8.14 Non-Installed Engines and Parts . . . . . . . . . . . . . . . 62
8.15 Pooling of Engines and Parts. . . . . . . . . . . . . . . . . 63
8.16 Equipment Changes . . . . . . . . . . . . . . . . . . . . . . 64
8.17 Title to Engines and Parts. . . . . . . . . . . . . . . . . . 64
8.18 Third Parties . . . . . . . . . . . . . . . . . . . . . . . . 65
8.19 Non-Discrimination. . . . . . . . . . . . . . . . . . . . . . 65
9. INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
9.1 Insurances. . . . . . . . . . . . . . . . . . . . . . . . . . 66
9.2 Requirements. . . . . . . . . . . . . . . . . . . . . . . . . 66
<PAGE>
9.3 Insurance Covenants . . . . . . . . . . . . . . . . . . . . . 67
9.4 Failure to Insure . . . . . . . . . . . . . . . . . . . . . . 68
9.5 Continuing Indemnity. . . . . . . . . . . . . . . . . . . . . 69
9.6 Application of Insurance Proceeds . . . . . . . . . . . . . . 69
10. INDEMNITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
10.1 General . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
10.2 Mitigation. . . . . . . . . . . . . . . . . . . . . . . . . . 71
10.3 Duration. . . . . . . . . . . . . . . . . . . . . . . . . . . 72
11. EVENTS OF LOSS. . . . . . . . . . . . . . . . . . . . . . . . . . . 72
11.1 Total Loss. . . . . . . . . . . . . . . . . . . . . . . . . . 72
11.2 Engine Loss . . . . . . . . . . . . . . . . . . . . . . . . . 74
11.3 Requisition . . . . . . . . . . . . . . . . . . . . . . . . . 74
12. RETURN OF AIRCRAFT. . . . . . . . . . . . . . . . . . . . . . . . . 75
12.1 Redelivery. . . . . . . . . . . . . . . . . . . . . . . . . . 75
12.2 Final Checks. . . . . . . . . . . . . . . . . . . . . . . . . 75
12.3 Final Inspection. . . . . . . . . . . . . . . . . . . . . . . 76
12.4 Non-Compliance. . . . . . . . . . . . . . . . . . . . . . . . 77
12.5 Export Documentation. . . . . . . . . . . . . . . . . . . . . 78
12.6 Acknowledgment. . . . . . . . . . . . . . . . . . . . . . . . 78
12.7 Maintenance Program . . . . . . . . . . . . . . . . . . . . . 78
12.8 Storage . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
13. DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
13.1 Events. . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
13.2 Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
13.3 Export. . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
13.4 Default Payments. . . . . . . . . . . . . . . . . . . . . . . 84
13.5 Waiver of Certain Article 2A Rights . . . . . . . . . . . . . 85
14. ASSIGNMENT and TRANSFER . . . . . . . . . . . . . . . . . . . . . . 85
14.1 No Assignment by Lessee . . . . . . . . . . . . . . . . . . . 85
14.2 Lessor Assignment . . . . . . . . . . . . . . . . . . . . . . 86
14.3 Grants of Security Interests. . . . . . . . . . . . . . . . . 88
14.4 Sale and Leaseback by Lessor. . . . . . . . . . . . . . . . . 90
14.5 Further Acknowledgments . . . . . . . . . . . . . . . . . . . 90
14.6 Certain Protections for Lessee's Benefit. . . . . . . . . . . 91
15. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
15.1 Waivers, Remedies Cumulative. . . . . . . . . . . . . . . . . 91
15.2 Delegation. . . . . . . . . . . . . . . . . . . . . . . . . . 91
<PAGE>
15.3 Appropriation . . . . . . . . . . . . . . . . . . . . . . . . 91
15.4 Currency Indemnity. . . . . . . . . . . . . . . . . . . . . . 91
15.5 Payment by the Lessor . . . . . . . . . . . . . . . . . . . . 92
15.6 Severability. . . . . . . . . . . . . . . . . . . . . . . . . 92
15.7 Remedy. . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
15.8 Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . 93
15.9 Time of Essence . . . . . . . . . . . . . . . . . . . . . . . 93
15.10 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
15.11 Law and Jurisdiction. . . . . . . . . . . . . . . . . . . . . 94
15.12 Sole and Entire Agreement . . . . . . . . . . . . . . . . . . 95
15.13 Indemnities . . . . . . . . . . . . . . . . . . . . . . . . . 95
15.14 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . 96
15.15 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . 96
<PAGE>
TABLE OF CONTENTS
continued
CLAUSE PAGE
SCHEDULES
1. Basic Rent and Other Terms . . . . . . . . . . . . . . . . . . 97
2. Aircraft Specification . . . . . . . . . . . . . . . . . . . . 99
3. Operating Condition at Delivery. . . . . . . . . . . . . . . .106
4. Operating Condition at Redelivery. . . . . . . . . . . . . . .111
5. Insurance Requirements . . . . . . . . . . . . . . . . . . . .116
EXHIBITS
A. Form of Certificate of Acceptance. . . . . . . . . . . . . . .121
B. Form of Certificate of Delivery Condition. . . . . . . . . . .123
C. Form of Consent. . . . . . . . . . . . . . . . . . . . . . . .127
D. Form of Legal Opinion. . . . . . . . . . . . . . . . . . . . .128
E. Form of Letter of Credit . . . . . . . . . . . . . . . . . . .129
F. Form of Monthly Status Report. . . . . . . . . . . . . . . . .130
G. Form of Certificate of Redelivery. . . . . . . . . . . . . . .133
<PAGE>
THIS LEASE AGREEMENT 22121 is made the 22nd day of July, 1999
BETWEEN:
(1) AIRCRAFT 22121, INC., a Delaware corporation having its
principal place of business at c/o Unicapital Air Group,
Inc., 1900 Summit Tower Blvd., Suite 860, Orlando, Florida
32810 (the "Lessor"), and
(2) VANGUARD AIRLINES, INC., a company organized and existing
under the laws of the State of Delaware having its principal
place of business at 533 Mexico City Avenue, Kansas City
International Airport, Kansas City, Missouri 64153 (the
"Lessee").
WHEREAS:
(A) Pursuant to a Sale Agreement, dated as of December 23, 1997,
between the Previous Operator, as seller, and NSJ
Corporation of Florida, Inc., as buyer ("NSJ-Florida"), as
assigned by the Previous Operator to the Previous Owner and
by NSJ-Florida to Lessor pursuant to the Assignment,
Assumption and Consent Agreement, dated as of July 16, 1999,
Lessor has agreed to purchase the Leased Property from the
Previous Owner on or before the Delivery Date.
(B) Lessor wishes to lease the Leased Property to the Lessee,
and Lessee agrees to lease the Leased Property from the
Lessor, with effect immediately from the purchase of the
Aircraft upon and subject to the covenants, terms and
conditions set out in this Agreement.
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS and INTERPRETATION
1.1 DEFINITIONS
In this Agreement the following expressions shall, unless
the context otherwise requires, have the following
respective meanings:
ACTUAL COST as it applies to any maintenance
work on the Aircraft, means the
actual cost of replacement parts
plus the cost of the associated
labor at Lessee's in-house labor
rates (if the work is performed by
Lessee) or at third party costs
charged to Lessee (if the work is
performed by third parties) and
shall in no event include late
charges, mark-ups, interest or
other similar amounts.
<PAGE>
ADDITIONAL RENT collectively, Airframe Additional
Rent, APU Additional Rent, Engine
Additional Rent and Landing Gear
Additional Rent.
AFFILIATE in relation to any Person, any
other Person controlled directly or
indirectly by that Person, any
other Person that controls directly
or indirectly that Person or any
other Person under common control
with that Person. For this purpose
"control" of any Person means
ownership of a majority of the
voting power of such Person.
AGREED MAINTENANCE the Lessee or any other reputable
PERFORMER maintenance organization that is
(i) experienced in maintaining
aircraft and/or engines of the same
type as the Aircraft and the
Engines, (ii) duly certificated by
the FAA under FAR Part 145, and
(iii) not objected to by Lessor
pursuant to Clause 7.6.
AGREED MAINTENANCE the Lessee's current Maintenance
PROGRAM Program, which shall at all times
be in compliance with the
Manufacturer's MPD and the Engine
Manufacturer's MPD, as the same may
be amended from time to time in
accordance with this Agreement.
AGREED VALUE the amount set forth on Schedule 1.
AIRCRAFT the aircraft described in Part l of
Schedule 2 (which term includes,
where the context admits, a
separate reference to all Engines
and Parts).
AIRCRAFT DOCUMENTS the documents, data and records
identified in Part 2 of Schedule 2
and all additions, renewals,
revisions and replacements from
time to time made in accordance
with this Agreement.
AIRFRAME the Aircraft, excluding the Engines
and the Aircraft Documents.
AIRFRAME ADDITIONAL RENT as defined in Clause 5.4(a)(i).
<PAGE>
AIRFRAME ADDITIONAL the amount set forth in Schedule 1.
RENT RATE
AIRFRAME REIMBURSABLE as defined in Clause 7.2(a)(i).
EXPENSES
APPLICABLE LAW all applicable (i) laws, treaties
and international agreements of any
national government, (ii) laws of
any state, province, territory,
locality or other political
subdivision of a national
government, and (iii) rules,
regulations, judgments, decrees,
orders, injunctions, writs,
directives, licenses and permits of
any Government Entity or
arbitration authority.
APPRAISAL PROCEDURE with respect to any amount to be
determined, the amount mutually
agreed by Lessor and Lessee or, if
Lessor and Lessee are unable to
agree upon any such amount to be
determined, the average of the
amounts determined by three
FAA-approved service centers in the
continental United States, one such
service center appointed by Lessor,
one by Lessee and one by their
appointed service centers, except
that if any party fails to appoint
a service center the Manufacturer
or the Engine Manufacturer
(whichever is appropriate) shall be
deemed appointed.
APU (i) the auxiliary power unit listed
in Schedule 2, (ii) any and all
Parts, so long as such Parts are
incorporated in, installed on or
attached to such auxiliary power
unit or so long as title to such
Parts is vested in the Lessor in
accordance with the terms of Clause
8.17(b) after removal from such
auxiliary power unit, and
(iii) insofar as the same belong to
Lessor, all substitutions,
replacements or renewals from time
to time made in or to such
auxiliary power unit or to any of
the Parts referred to in clause
(ii) above, as required or
permitted under this Agreement.
APU ADDITIONAL RENT as defined in Clause 5.4(a)(iv).
APU ADDITIONAL RENT the amount set forth in Schedule 1.
RATE
APU REIMBURSABLE as defined in Clause 7.2(d)(i).
EXPENSES
<PAGE>
ASSIGNMENT the Assignment of Lease Agreement,
dated the Delivery Date, between
Lessor and Mortgagee, and any
present or future assignment by the
Lessor in favor of any Financing
Party of the Lessor's rights under
this Agreement as security for its
obligations to a Financing Party.
AVIATION AUTHORITY the FAA or, if the State of
Registration ceases to be the
United States of America, the
authority and/or Government Entity
and/or agency which, under the laws
of the State of Registration, from
time to time (i) has control or
supervision of civil aviation; or
(ii) has jurisdiction over
registration, airworthiness or
operation of the Aircraft.
BASIC RENT all amounts payable pursuant to
Clause 5.3.
BASIC RENT AMOUNT the amount set forth in Schedule 1.
BUSINESS DAY a day (other than a Saturday or
Sunday) on which business of the
nature required by this Agreement
is carried out in Orlando, Florida
and the city in which Lessee's
office listed in Clause 15.10(b) is
located or, where used in relation
to payments, on which banks are
open for business in New York, New
York.
C-CHECK a maintenance check on the Airframe
under the Agreed Maintenance
Program designated as a "C" check
and consisting of full and complete
zonal, systems and structural check
including the corresponding lower
checks ("A" and "B" or equivalent)
and any other maintenance and
inspections tasks that are a part
of such checks, all in accordance
with the Agreed Maintenance
Program, or if the Agreed
Maintenance Program changes and no
longer refers to a full and
complete zonal, systems and
structural block "C" check, then a
check consisting of those items of
maintenance characterized by the
MPD and best industry practice as a
"C" check (or its equivalent), but
in any event not including repairs
arising as the result of
operational or maintenance
mishandling or accidental damage.
<PAGE>
CER an engine refurbishment, including
with respect to any Engine the
complete visual inspection and
repair as necessary of required
modules of the Engine in an engine
repair/overhaul station, including
complete or partial disassembly,
complete or partial visual
inspection, de-blading of LLPs as
required, visual inspection of all
LLPs, verification that all snap
diameters on LLPs are within
limits, inspection of all blades
for proper chord dimensions and
cracking, repair or replacement of
all blades below minimums,
inspection and repair of stators as
necessary, blade-up of LLPs using
new lock plates, assembly of rotors
in the turbine, balance of all
rotors, and installation of rotors
in the Engine.
CERTIFICATE OF a certificate in the form attached
ACCEPTANCE as Exhibit A to be completed and
executed by Lessor
and Lessee on Delivery.
CERTIFICATE OF a certificate in the form attached
DELIVERY CONDITION as Exhibit B to be
completed and executed by Lessor
and Lessee on Delivery.
CERTIFICATE OF a certificate in the form attached
REDELIVERY as Exhibit G to be
completed and executed by Lessor
upon redelivery of the Aircraft and
Aircraft Documents in accordance
with this Agreement.
CONSENT the Lessee's Acknowledgment of and
Consent to Assignment of Lease,
dated the Delivery Date, between
Lessor, Lessee and Mortgagee in the
form attached as Exhibit C pursuant
to which, inter alia, Lessee
consents to the Assignment and
Mortgagee covenants to preserve
Lessee's quiet enjoyment.
COOPESA The Self-Managed Cooperative of
Aero Industrial Services R.L.
CPCP Lessee's Corrosion Prevention and
Control Program under the Agreed
Maintenance Program.
<PAGE>
CREDIT AGREEMENT the Secured Loan Agreement, dated
as of July 19, 1999, between Lender
and Lessor.
CYCLE one take-off and landing of an
airframe.
DAMAGE NOTIFICATION the amount set forth in Schedule 1.
THRESHOLD
DEFAULT any Event of Default and any event
which with the giving of notice,
lapse of time or fulfilment of any
other condition or any combination
of the foregoing would constitute
an Event of Default.
DEFAULT RATE at any time and from time to time,
3.0% plus the prime or base
commercial lending rate as
announced (i) if the Mortgagee is a
bank or trust company, by the
Mortgagee at its principal banking
office in New York City, New York,
or (ii) if the Mortgagee is not a
bank or trust company, by Citibank,
N.A., in either case compounded
monthly and calculated on the basis
of the actual number of days
elapsed and on a 360 day year.
DELIVERY the delivery of the Aircraft to the
Lessee in accordance with the terms
of this Agreement.
DELIVERY DATE the date on which Delivery takes
place, which shall be the Scheduled
Delivery Date or such other date
notified by Lessor to Lessee in
accordance with the provisions of
this Agreement, including Clauses
4.2(e) and 4.3.
DELIVERY LOCATION Kansas City International Airport,
Kansas City, Missouri.
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, model and serial
number specified in Part 1 of
Schedule 2 and having 750 or
more rated take-off
<PAGE> horsepower, title to which shall
belong to the Lessor; or
(b) any engine which replaces that
engine, title to which passes
to the Lessor in accordance
with Clause 8.17(d);
and in each case includes all
modules and Parts from time to time
belonging to, installed in or
appurtenant to that engine.
ENGINE ADDITIONAL RENT as defined in Clause 5.4(a)(ii).
ENGINE ADDITIONAL RENT
RATE the amount set forth in Schedule 1.
ENGINE LOSS the occurrence, with respect to an
Engine, of one of the events set
forth in clauses (a) through (d) of
the definition of "Total Loss" as
if references to the "Airframe"
were to such "Engine".
ENGINE LOSS DATE the relevant date determined in
accordance with the definition of
"Total Loss Date" as if that
definition applied to an Engine
Loss.
ENGINE MANUFACTURER the Pratt & Whitney Division of
United Technologies Corporation.
ENGINE REIMBURSABLE as defined in Clause 7.2(b)(i).
EXPENSES
ENGINE SHOP VISIT a shop visit requiring disassembly
of an Engine (but excluding for
this purpose any removal,
installation, maintenance and
repair of "Quick Engine Change"
kits) and during which there shall
be performed a hot section
restoration or repair or a cold
section restoration or repair or a
replacement of LLPs.
EQUIPMENT CHANGE as defined in Clause 8.16(a).
EVENT OF DEFAULT an event specified in Clause 13.1.
EXCUSABLE DELAY with respect to delivery of the
Aircraft, delay or non-performance
due to or arising out of acts of
God <PAGE>or public enemy, civil
war, insurrection or riot, fire,
flood, explosion, earthquake,
serious accident, epidemic,
quarantine restriction, import
restriction, any act of government,
governmental priority, allocation,
regulation or order affecting
directly or indirectly, the
Aircraft, any manufacturer, Lessor
or any materials or facilities,
strike or labor dispute causing
cessation, slowdown or interruption
of work, inability after due and
timely diligence to procure
equipment, data or materials from
manufacturers, suppliers, any
existing owner, seller or lessee in
a timely manner, damage,
destruction or loss, adverse
weather conditions preventing any
services, inspections or flights of
the Aircraft or any other cause to
the extent that such cause is
beyond the control of Lessor,
whether above mentioned or not and
whether or not similar to the
foregoing.
EXPIRY DATE the Scheduled Expiry Date or any
other date on which:
(a) the Aircraft has been
redelivered in accordance with
this Agreement and all
obligations of Lessee have
been satisfied; or
(b) the Lessor receives the Agreed
Value following a Total Loss
and any other amounts then due
and owing in accordance with
this Agreement.
FAA the Federal Aviation Administration
of the U.S. Department of
Transportation, or any successor
Government Entity succeeding to the
functions thereof.
FARs the Federal Aviation Regulations
for the time being in force, issued
by the FAA pursuant to the Federal
Aviation Law and published in Title
14 of the Code of Federal
Regulations.
FEDERAL AVIATION LAW Title 49 of the United States Code,
as amended, or any successor
statutory provisions and the
regulations promulgated under such
provisions.
<PAGE>
FINANCIAL INDEBTEDNESS any indebtedness in respect of:
(a) moneys borrowed;
(b) any liability under any
debenture, bond, note, loan
stock, acceptance credit,
documentary credit or other
security;
(c) the acquisition cost of any
asset to the extent payable
before or after the time of
acquisition or possession; or
(d) the capitalized value
(determined in accordance with
accounting practices generally
accepted in the United States
of America) of obligations
under finance leases; or
(e) any guarantee, indemnity or
similar assurance against
financial loss of any Person
in respect of the above.
FINANCING PARTIES collectively (i) Lender, (ii)
Mortgagee, (iii) any Additional
Mortgagee, (iv) any Person that
lends money to Lessor and for whom
an Additional Mortgagee holds a
Security Interest in the Leased
Property, and (v) the successors
and permitted assigns of such
Persons.
FLIGHT HOUR each hour or part thereof (rounded
up to one decimal place) elapsing
from the moment the wheels of the
Airframe leave the ground on take
off until the moment the wheels of
the Airframe next touch the ground.
GAAP generally accepted accounting
principles as in effect from time
to time and, subject to changes in
such principles from time to time,
consistently applied in accordance
with the past practices of a
Person.
GOVERNMENT ENTITY (a) any national, state or local
government, political
subdivision thereof or local
jurisdiction therein;
<PAGE>
(b) any board, commission,
department, division,
instrumentality, court, agency
or political subdivision
thereof; 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
activities any of the above is
a participant.
HEAVY CHECK the maintenance checks under the
Agreed Maintenance Program
designated as "Q1" and "Q2", or any
comparable major airframe overhaul
under any other or amended
maintenance program.
IATA the International Air Transport
Association.
INDEMNITEES Lessor, each of the Financing
Parties, the respective successors
and assigns of such Persons and the
shareholders, directors, officers,
agents and employees of such
Persons.
INSURANCES as defined in Clause 9.1.
LANDING GEAR the landing gear assembly of the
Aircraft excluding the wheels and
brake units.
LANDING GEAR ADDITIONAL as defined in Clause 5.4(a)(iii).
RENT
LANDING GEAR ADDITIONAL the amount set forth in Schedule 1.
RENT RATE
LANDING GEAR as defined in Clause 7.2(c)(i).
REIMBURSABLE
EXPENSES
LEASED PROPERTY the Aircraft and the Aircraft
Documents.
LENDER FINOVA Capital Corporation and its
successors and assigns as "Lender"
under the Credit Agreement.
LESSEE INSTALLED PART a Part installed on the Aircraft
after Delivery not in replacement
for any Part and not required under
the <PAGE>FARs on the Aircraft,
title to which is held by Lessee
(and which may be subject to a
Security Interest in favor of an
unrelated third party) or title to
which is held by an unrelated third
party and such Part is leased or
conditionally sold to Lessee.
LESSOR LIEN (a) the Mortgage and any other
Security Interest whatever
from time to time created by
or arising through the Lessor
and/or any Financing Party in
connection with the financing
or refinancing of the
Aircraft;
(b) any other Security Interest in
respect of the Aircraft that
results from acts or omissions
of, or claims against, the
Lessor and/or any Financing
Party not related to the
operation of the Aircraft or
the transactions contemplated
by or permitted under this
Agreement; and
(c) liens in respect of the
Aircraft for Non-Indemnified
Taxes.
LETTER OF CREDIT an irrevocable standby letter of
credit, in the form set out in
Exhibit E or otherwise in form and
substance reasonably satisfactory
to Lessor, to be issued (at the
Lessee's option) in favor of Lessor
(or, if designated by Lessor, in
favor of Mortgagee) by a bank
reasonably acceptable to Lessor and
Mortgagee for the payment of the
Security Deposit.
LLPs life limited Parts.
MAINTENANCE PROGRAM an Aviation Authority approved
maintenance program for the
Aircraft encompassing scheduled
maintenance, condition monitored
maintenance and/or on-condition
maintenance of Airframe, Engines
and Parts, including servicing,
testing, preventative maintenance,
repairs, structural inspections,
system checks, overhauls, approved
modifications, service bulletins,
engineering orders, airworthiness
directives, corrosion control,
inspections and treatments.
<PAGE>
MAJOR CHECKS any Heavy Check, C-Check, "C"
check, multiple or phase "C" check,
"D" check or annual heavy
maintenance visit or segment
thereof suggested for commercial
aircraft of the same model as the
Aircraft by the Manufacturer
(however denominated in the Agreed
Maintenance Program).
MANUFACTURER The Boeing Company, a Delaware
corporation with a place of
business in Seattle, Washington.
MINIMUM LIABILITY the amount set forth on Schedule 1.
COVERAGE
MORTGAGE the First Priority Aircraft Chattel
Mortgage and Security Agreement,
dated the Delivery Date, between
Lessor, as debtor, and Mortgagee,
as secured party, whereby Lessor
has granted to Mortgagee a first
priority security interest in the
Aircraft and its right, title and
interest in the Operative
Documents.
MORTGAGEE FINOVA Capital Corporation and its
successors and assigns as mortgagee
under the Mortgage.
MPD for any manufacturer, such
manufacturer's Maintenance Planning
Document.
NON-INDEMNIFIED TAXES (a) Taxes imposed as a direct
result of activities of any
Tax Indemnitee in the
jurisdictions imposing the
liability unrelated to such
Tax Indemnitee's dealings with
Lessee pursuant to the
Operative Documents or to the
transactions contemplated by
the Operative Documents or the
operation of the Aircraft by
Lessee;
(b) Taxes on or measured by the
income, profits, gains,
capital or net worth
(including minimum taxes,
withholding taxes and taxes on
or measured by any items of
tax preference) and any doing
business or franchise taxes,
and interest, additions to
tax, penalties or other
charges in respect thereof,
imposed on any Tax Indemnitee
(i) by any Federal Government
Entity in the United States of
America, (ii) by <PAGE>any
Government Entity in the
jurisdictions where such Tax
Indemnitee is incorporated,
formed or organized or has its
principal place of business,
(iii) by any state or local
Government Entity in the
United States of America in
which such Tax Indemnitee has
a nexus as a result of
activities other than those
contemplated by the Operative
Documents, or (iv) by any
Government Entity in any other
jurisdiction where such Tax
Indemnitee is liable for such
Taxes in the absence of the
transactions contemplated by
this Agreement;
(c) Taxes imposed with respect to
any period ending or event
occurring before the date of
this Agreement or any period
commencing or event occurring
after the Expiry Date;
(d) Taxes imposed as a direct
result of the sale, financing
or other disposition or
assignment of the Aircraft, or
any interest in any trust or
other entity that holds a
direct or indirect interest in
the Aircraft, unless such sale
or disposition occurs as a
consequence of an Event of
Default;
(e) Taxes imposed by a taxing
jurisdiction for a particular
tax period in which none of
the following is true for that
tax period: (i) the
operation, registration,
location, presence or use of
the Aircraft, the Airframe,
any Engine or any Part
thereof in such jurisdiction,
(ii) the place of
incorporation, commercial
domicile or other presence in
such jurisdiction of the
Lessee, any sublessee or any
user of or Person in
possession of the Aircraft,
the Airframe, any Engine or
any Part thereof in such
jurisdiction, or (iii) any
payments made under this
Agreement and related
documents being made from such
jurisdiction;
<PAGE>
(f) Taxes to the extent caused by
the gross negligence or
willful misconduct of any Tax
Indemnitee or the breach by
any Tax Indemnitee of any of
their obligations under the
Operative Documents;
(g) Taxes to the extent caused by
a failure by any Tax
Indemnitee to furnish in a
timely manner notice or
information which it is
required to furnish to Lessee
by the terms of this
Agreement;
(h) any Taxes imposed on or with
respect to a transferee or
assignee of the Aircraft or
any interest therein to the
extent that, under Applicable
Law in effect at the time of
the transfer or assignment,
such Taxes would not have been
imposed on or with respect to
the transferor or assignor;
and
(i) any Taxes resulting from or
attributable to a Lessor Lien.
OPERATIVE DOCUMENTS this Agreement, the Certificate of
Acceptance, the Certificate of
Delivery Condition and the Consent.
PART whether or not installed on the
Aircraft:
(a) any component, furnishing or
equipment (other than a
complete Engine) furnished
with, installed on or
appurtenant to the Airframe
and Engines on Delivery; and
(b) any other component,
furnishing or equipment (other
than a complete Engine) title
to which has, or should have,
passed to the Lessor pursuant
to the Sale Agreement or
Clause 8.17(b),
but excludes any such items title
to which has, or should have,
passed to Lessee pursuant to
Clause 8.17(c) and any Lessee
Installed Part.
<PAGE>
PERMITTED LIEN (a) any lien for Taxes not
assessed or, if assessed, not
yet due and payable, or being
contested in good faith by
appropriate proceedings;
(b) any lien of a repairer,
mechanic, carrier, hangar
keeper, unpaid seller or other
similar lien arising in the
ordinary course of business or
by operation of law in respect
of obligations which are not
overdue in accordance with
Applicable Law (or, if
applicable, generally accepted
accounting principles and
practices in the relevant
jurisdiction) or are being
contested in good faith by
appropriate proceedings; and
(c) any Lessor Lien;
but only if, in the case of (a) and
(b): (i) adequate reserves have
been provided by Lessee for the
payment of the Taxes or obligations
in accordance with generally
accounting principles and practices
in the relevant jurisdiction; and
(ii) such proceedings, or the
continued existence of the lien, do
not give rise to any reasonable
likelihood of the sale, forfeiture
or other loss of the Aircraft or
any interest therein or of criminal
liability on the Lessor or any
Financing Party.
PERSON any individual, corporation,
partnership, limited liability
company, limited liability
partnership, joint venture,
association, joint stock company,
trust, unincorporated organization
or Government Entity.
PREVIOUS OPERATOR Deutsche Lufthansa
Aktiengesellschaft.
PREVIOUS OWNER First Security Bank, National
Association, as trustee f/b/o the
Previous Operator
REDELIVERY LOCATION Kansas City International Airport
or any other location agreed by
Lessor and Lessee.
<PAGE>
REIMBURSABLE EXPENSES collectively, Airframe Reimbursable
Expenses, APU Reimbursable
Expenses, Engine Reimbursable
Expenses and Landing Gear
Reimbursable Expenses.
RENT collectively, all Basic Rent,
Additional Rent and Supplemental
Rent.
RENTAL PERIOD each period ascertained in
accordance with Clause 5.2.
RENT DATE the Delivery Date and the
corresponding day of each calendar
month during the Term or, for any
calendar month that does not have a
corresponding day, the last day of
such calendar month.
SCHEDULED DELIVERY July 15, 1999.
DATE
SCHEDULED EXPIRY DATE the fifth anniversary of the
Delivery Date.
SECURITY DEPOSIT the amount set forth on Schedule 1.
SECURITY INTEREST any mortgage, charge, pledge, lien,
assignment, hypothecation, right of
set-off, or any agreement or
arrangement having the effect of
creating a security interest.
SPECIAL FAA COUNSEL McAfee & Taft of Oklahoma City,
Oklahoma.
SRM the Manufacturer's structural
repair manual.
STATE OF INCORPORATION State of Delaware.
STATE OF REGISTRATION United States of America.
SUBSIDIARY (a) in relation to any reference
to accounts, any company
wholly or partially owned by
Lessee whose accounts are
consolidated with the accounts
of the 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:
<PAGE>
(i) of which another has
direct or indirect
control or owns directly
or indirectly more than
50% 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.
SUPPLEMENTAL RENT all amounts, liabilities and
obligations (other than Basic Rent
and Additional Rent) that Lessee
assumes or agrees to pay under this
Agreement to Lessor or any other
Person, including payment of
deposits, indemnities and the
Agreed Value.
TAX INDEMNITEES Lessor and each of the Financing
Parties.
TAXES all present and future taxes,
levies, imposts, duties or charges
in the nature of taxes, whatever
and wherever imposed, including
customs duties, value added taxes
or similar taxes and any franchise,
transfer, sales, use, business,
occupation, excise, personal
property, stamp or other tax or
duty imposed by any national or
local taxing or fiscal authority or
agency, together with any
withholding, penalties, additions
to tax, fines or interest thereon
or with respect thereto.
TERM the period commencing on the
Delivery Date and ending on the
Expiry Date or any later date
pursuant to Clause 12.4.
TOTAL LOSS with respect to the Airframe:
(a) the actual, arranged or
constructive total loss of the
Airframe (including any damage
to the Airframe 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);
<PAGE>
(b) the Airframe being destroyed,
damaged beyond repair or
permanently rendered unfit for
normal use for any reason
whatsoever;
(c) the requisition of title, or
other compulsory acquisition,
capture, seizure, deprivation,
confiscation or detention for
any reason of the Airframe by
the government of the State of
Registration (whether de jure
or de facto), but excluding
requisition for use or hire
not involving requisition of
title; or
(d) the hi-jacking, theft,
condemnation, confiscation,
seizure or requisition for use
or hire of the Airframe
(excluding any of the
foregoing which is
attributable to a Lessor Lien
or the enforcement thereof)
which deprives any Person
permitted by this Agreement to
have possession and/or use of
the Airframe for more than 60
consecutive days.
TOTAL LOSS DATE (a) in the case of an actual total
loss, the actual date on which
the loss occurs or, if such
date is unknown, the day on
which the Aircraft was last
heard of;
(b) in the case of any of the
events described in
sub-paragraph (a) of the
definition of "Total Loss"
(other than an actual total
loss), the earlier of (i) 30
days after the date on which
notice claiming such total
loss is given to the relevant
insurers, and (ii) the date on
which such loss is admitted or
compromised by the insurers;
(c) in the case of any of the
events described in
sub-paragraph (b) of the
definition of "Total Loss",
the date on which such
destruction, damage or
rendering unfit occurs;
<PAGE>
(d) in the case of any of the
events described in
sub-paragraph (c) of the
definition of "Total Loss",
the date on which the relevant
requisition of title or other
compulsory acquisition,
capture, seizure, deprivation,
confiscation or detention
occurs;
(e) in the case of any of the
events described in
sub-paragraph (d) of the
definition of "Total Loss",
the expiry of the period of 60
days referred to in such
sub-paragraph (d);
and, in each case, the Total Loss
shall be deemed to have occurred at
noon Greenwich Mean Time on such
date.
1.2 INTERPRETATION
(a) In this Agreement, unless the contrary intention
is stated, a reference to:
(i) each of "Lessor", "Lessee", "Financing Party"
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) the term "including", when used in this
Agreement, means "including without
limitation" and "including but not
limited to".
(iv) any document shall include that document as
amended, novated or supplemented from time to
time unless expressly stated to the contrary;
(v) a law (1) includes any statute, decree,
constitution, regulation, order, judgment or
directive of any Government Entity; (2)
includes any treaty, pact, compact or other
agreement to which any Government Entity is a
signatory or party; (3) includes any judicial
or administrative interpretation or
application thereof; and (4) is a reference
to that provision as amended, substituted or
re-enacted; and
(vi) a Clause, Schedule or Exhibit is a reference
to a clause of, a schedule to or an exhibit
to this Agreement.
<PAGE>
(b) The headings in this Agreement are to be ignored
in construing this Agreement.
20 REPRESENTATIONS and WARRANTIES
2.1 LESSEE'S REPRESENTATIONS AND WARRANTIES
The Lessee represents and warrants as of the date
hereof to the Lessor as follows:
(a) STATUS: The Lessee is a corporation duly
organized, validly existing and in good standing
under the laws of the State of Incorporation, has
the corporate power to own its assets and carry on
its business as it is being conducted and is (or
will at the relevant time be) 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: The 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, each of the
Operative Documents and the transactions
contemplated by the Operative Documents.
(c) LEGAL VALIDITY: Each of the Operative Documents
constitutes the Lessee's legal, valid and binding
agreement, enforceable against Lessee in
accordance with its terms.
(d) NON-CONFLICT: The entry into and performance by
the Lessee of, and the transactions contemplated
by, the Operative Documents do not and will not:
(i) conflict with any Applicable Laws binding on
the Lessee;
(ii) conflict with the constitutional documents of
the Lessee; or
(iii) conflict with or result in default under
any document which is binding upon the
Lessee or any of its assets, or result
in the creation of any Security Interest
over any of its assets, other than
Permitted Liens.
(e) AUTHORIZATION: All authorizations, consents and
registrations required by, and all notifications
to be given by, the Lessee in connection with the
entry into, performance, validity and
enforceability of, the Operative Documents and the
transactions contemplated by the Operative
Documents have been (or will on or before Delivery
have been) obtained, effected or given (as
<PAGE>appropriate) and are (or will on their being
obtained or effected be) in full force and effect.
(f) NO IMMUNITY:
(i) The Lessee is subject to civil commercial law
with respect to its obligations under this
Agreement.
(ii) Neither the Lessee nor any of its assets is
entitled to any right of immunity and the
entry into and performance of the Operative
Documents by the Lessee constitute private
and commercial acts.
(g) FINANCIAL STATEMENTS: the audited consolidated
financial statements of the Lessee and its
Subsidiaries most recently delivered to the
Lessor:
(i) have been prepared in accordance with
accounting principles and practices generally
accepted and consistently applied in the
State of Registration; and
(ii) fairly present the consolidated financial
condition of the Lessee and its Subsidiaries
as at the date to which they were drawn up
and the consolidated results of operations of
the Lessee and its Subsidiaries for the
periods covered by such statements.
(h) PARI PASSU: The obligations of the Lessee under
this Agreement rank at least pari passu with all
other present and future unsecured and
unsubordinated obligations (including contingent
obligations) of the Lessee, with the exception of
such obligations as are mandatorily preferred by
law and not by virtue of any contract.
2.2 LESSEE'S FURTHER REPRESENTATIONS AND WARRANTIES
The Lessee further represents and warrants as of the
date hereof to the Lessor that:
(a) NO DEFAULT: No Event of Default has occurred and
is continuing or might reasonably be expected to
result from the entry into or performance of any
of the Operative Documents.
(b) REGISTRATION:
(i) It is not necessary or advisable under the
laws of the State of Registration in order to
ensure the validity, effectiveness and
enforceability of the Operative Documents or
to establish, perfect or <PAGE>protect the
property rights of Lessor or any Financing
Party in the Leased Property that any
instrument relating thereto other than this
Agreement, the Certificate of Acceptance, the
Assignment or the Mortgage 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
Delivery.
(ii) Under all Applicable Laws, including the laws
of the State of Incorporation and the State
of Registration, the property rights of the
Lessor and the Financing Parties (pursuant to
the Assignment and Mortgage) in the Leased
Property as of the Delivery Date have been
fully established, perfected and protected
and this Agreement will have priority in all
respects over the claims of all creditors of
the Lessee, with the exception of such claims
as are mandatorily preferred by law and not
by virtue of any contract.
(c) LITIGATION: No litigation, arbitration or
administrative proceedings are pending or, to the
Lessee's knowledge, threatened against the 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 the Operative Documents.
(d) TAXES: The Lessee has delivered all necessary
returns and payments due to all tax authorities
having jurisdiction over Lessee, including those
in the State of Incorporation and the State of
Registration, except where the failure to do so
would not have a material adverse effect upon its
financial condition or business or its ability to
perform its obligations under the Operative
Documents, and based upon the representations of
Lessor in Clause 2.4 and on the assumption that
Lessor is a "United States person" within the
meaning of Section 7701(a)(30) of the Internal
Revenue Code of 1986, as amended, Lessee is not
required by law to deduct or withhold any Taxes
from any payments under this Agreement.
2.3 REPETITION
The representations and warranties in Clause 2.1 and
Clause 2.2 will survive the execution of this
Agreement. The representations and warranties
contained in Clause 2.1 and Clause 2.2 will be deemed
to be repeated by the Lessee on Delivery with reference
to the facts and circumstances then existing. The
representations and warranties contained in Clause 2.1
will be deemed to be repeated by the Lessee on each
Rent Date as if made with reference to the facts and
circumstances then existing.
<PAGE>
2.4 LESSOR'S REPRESENTATIONS AND WARRANTIES
The Lessor represents and warrants to the Lessee that:
(a) STATUS: Lessor is a corporation duly organized,
validly existing and in good standing under the
laws of the State of Delaware and has the
corporate power to own the Leased Property and
carry on the business contemplated of Lessor under
the Operative Documents. Lessor is a "citizen of
the United States" within the meaning of Section
40102(a)(15) of the Federal Aviation Law.
(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, each of the
Operative Documents and the transactions
contemplated by the Operative Documents.
(c) LEGAL VALIDITY: Each of the Operative Documents
constitutes Lessor's legal, valid and binding
agreement, enforceable against Lessor in
accordance with its terms.
(d) NON-CONFLICT: The entry into and performance by
Lessor of, and the transactions contemplated by,
the Operative Documents do not and will not:
(i) conflict with any Applicable Laws binding on
Lessor;
(ii) conflict with the certificate of
incorporation or bylaws of Lessor; or
(iii) conflict with or result in default under
any document which is binding upon
Lessor or any of its assets.
(e) AUTHORIZATION: So far as concerns the obligations
of Lessor, all authorizations, consents,
registrations and notifications required in
connection with the entry into, performance,
validity and enforceability of, and the
transactions contemplated by, the Operative
Documents by Lessor have been (or will on or
before Delivery have been) obtained, effected or
given (as appropriate) and are (or will on their
being obtained or effected be) in full force and
effect.
<PAGE>
(f) NO IMMUNITY:
(i) Lessor is subject to civil commercial law
with respect to its obligations under the
Operative Documents.
(ii) Neither Lessor nor any of its assets is
entitled to any right of immunity and the
entry into and performance of the Operative
Documents by Lessor constitute private and
commercial acts.
(g) RIGHT TO LEASE: On the Delivery Date, Lessor
shall have the right to lease the Aircraft to
Lessee under this Agreement.
2.5 REPETITION
The representations and warranties in Clause 2.4 will
survive the execution of this Agreement. The
representations and warranties contained in Clause 2.4
will be deemed to be repeated by Lessor on Delivery and
on each subsequent Rent Date as if made with reference
to the facts and circumstances then existing.
30 CONDITIONS PRECEDENT
3.1 LESSOR'S DOCUMENTARY CONDITIONS PRECEDENT
Lessor's obligation to lease the Leased Property to
Lessee under this Agreement is subject to the receipt
of the following by Lessor and Mortgagee from Lessee on
or before Delivery in form and substance satisfactory
to the Lessor, provided that it shall not be a
condition precedent to the obligations of the Lessor
that any document be produced, or action taken, which
is to be produced or taken by it or any Person within
its control:
(a) CONSTITUTIONAL DOCUMENTS: a copy of the
constitutional documents of the Lessee;
(b) RESOLUTIONS: a copy of a resolution of the board
of directors of the Lessee approving the terms of,
and the transactions contemplated by, the
Operative Documents, resolving that it enter into
the Operative Documents, and authorizing a
specified individual or individuals to execute the
Operative Documents and accept delivery of the
Aircraft on its behalf;
(c) OPINIONS: (i) an opinion, in the form set out in
Exhibit D, in respect of Lessee's obligations
under the Operative Documents issued by
independent
<PAGE> legal counsel acceptable to Lessor, and (ii) an
opinion from Special FAA Counsel as to such
matters as Lessor may reasonably request;
(d) APPROVALS: evidence of the issuance of each
approval, license and consent which may be
required in relation to, or in connection with,
the performance by Lessee of any of its
obligations hereunder;
(e) LICENSES: copies of the Lessee's air transport
license, air operator's certificate and all other
licenses, certificates and permits required by the
Lessee in relation to, or in connection with, the
operation of the Aircraft;
(f) CERTIFICATE: a certificate of a duly authorized
officer of the Lessee:
(i) setting out a specimen of each signature
referred to in Clause 3.1(b); and
(ii) certifying that each copy of a document
specified in this Clause 3.1 is correct,
complete and in full force and effect;
(g) INSURANCES: certificates of insurance, brokers'
undertakings and other evidence satisfactory to
the Lessor and Mortgagee that the Lessee is taking
the required steps to ensure due compliance with
the provisions of this Agreement as to insurances
with effect on and after Delivery;
(h) FILINGS: evidence that all filings,
registrations, recordings and other actions have
been or will be taken which are necessary to
ensure the validity, effectiveness and
enforceability of the Operative Documents and to
protect the respective rights of the Lessor and
the Mortgagee in the Leased Property; and
(i) GENERAL: such other documents as Lessor may
reasonably request.
3.2 LESSOR'S OTHER CONDITIONS PRECEDENT
The obligation of the Lessor to deliver and lease the
Leased Property under this Agreement is also subject to
the following additional conditions precedent:
(a) REPRESENTATIONS AND WARRANTIES: the
representations and warranties of Lessee under
Clauses 2.1 and 2.2 are correct and would be
correct if repeated on Delivery; and
<PAGE>
(b) PAYMENTS: all payments due to Lessor under this
Agreement on or before Delivery, including the
first payment of Basic Rent, shall have been
received by Lessor.
3.3 LESSOR'S WAIVER
The conditions specified in Clauses 3.1 and 3.2(a) and
(b) are for the sole benefit of the Lessor and the
Financing Parties and may be waived or deferred in
whole or in part and with or without conditions by the
Lessor.
3.4 LESSEE'S CONDITIONS PRECEDENT
The Lessee's obligation to accept the Leased Property
on lease from Lessor under this Agreement is subject to
the satisfaction by the Lessor of the following
conditions precedent:
(a) RESOLUTIONS: a copy of a resolution of the board
of directors of the Lessor approving the terms of,
and the transactions contemplated by, the
Operative Documents, resolving that it enter into
the Operative Documents, and authorizing a
specified individual or individuals to execute the
Operative Documents;
(b) CERTIFICATE: the receipt by the Lessee of a
certificate of a duly authorized officer of the
Lessor:
(i) setting out a specimen of each signature
referred to in sub-clause (a) above; and
(ii) certifying that the copy of the resolutions
referred to in sub-clause (a) above is
correct, complete and in full force and
effect;
(c) REPRESENTATIONS AND WARRANTIES: the
representations and warranties of the Lessor under
Clause 2.4 are correct and would be correct if
repeated on Delivery;
(d) REGISTRATION: evidence that title to the Aircraft
is held by Lessor and that the Aircraft has been
validly registered under the laws of the State of
Registration;
(e) DELIVERY CONDITION: the Aircraft shall be in the
condition set forth on Schedule 3;
<PAGE>
(f) CONSENT: the receipt by Lessee of the Consent,
duly signed by Lessor and Mortgagee;
(g) NO INJUNCTIONS: no action or proceedings shall
have been instituted nor shall governmental action
be threatened before any Government Entity, nor
shall any order, judgment or decree have been
issued or proposed to be issued by any Government
Entity at the time of the Delivery Date to set
aside, restrain, enjoin or prevent the completion
and consummation of this Agreement or the
transactions contemplated hereby;
(h) OPERATIVE DOCUMENTS: Lessee shall have received
executed counterparts of each of the Operative
Documents; and
(i) NO CHANGE IN LAW: no change shall have occurred
after the date of this Agreement in Applicable Law
(including changes in interpretations thereof by
Government Entities) which, in the reasonable
opinion of Lessee, would make it a violation of
Applicable Law for Lessee to enter into any
transaction contemplated by the Operative
Documents.
3.5 LESSEE'S WAIVER
The conditions specified in Clause 3.4 are for the sole
benefit of the Lessee and may be waived or deferred in
whole or in part and with or without conditions by the
Lessee. If any of those conditions are not satisfied
on or before Delivery and the Lessee (in its absolute
discretion) nonetheless agrees to lease the Leased
Property from the Lessor, then Lessor will ensure that
those conditions are fulfilled within one month after
the Delivery Date.
40 COMMENCEMENT
4.1 LEASING
(a) The Lessor will lease the Leased Property to the
Lessee and the Lessee will take the Leased
Property on lease in accordance with this
Agreement for the duration of the Term.
(b) The Lessor and the Lessee intend that this
Agreement constitute a "true lease" and a lease
for all United States federal income tax purposes.
Lessor and Lessee further intend and agree that
the Lessor shall be entitled to the full benefits
afforded lessors of aircraft under 11 U.S.C.
Section 1110, as amended.
<PAGE>
4.2 DELIVERY
(a) DELIVERY CONDITION: Lessor shall deliver the
Leased Property in compliance with the delivery
conditions set forth in Schedule 3 and otherwise
"as is, where is and with all faults", except for
any items set forth on Annex 2 to the Certificate
of Delivery Condition and any other items agreed
in writing by Lessor and Lessee. Lessor
represents and warrants to Lessee that Lessor has
an agreement with Coopesa for the modification of
the Aircraft, which commenced April 23, 1999, to
cause the Aircraft to comply with the delivery
conditions set forth on Schedule 3.
(b) DELIVERY INSPECTION: Before the Delivery Date,
Lessor shall cause Coopesa to make the Leased
Property available for Lessee to conduct a ground
inspection of the Aircraft and an inspection of
the Aircraft Documents to its satisfaction
(collectively, the "Ground Inspection"). The
Ground Inspection of the Aircraft shall include
the following:
(i) Lessee shall be entitled to perform, at
Lessee's expense, a videotape borescope
inspection of all accessible gas path
sections of each Engine (accessible whether
by borescope port or other means), including
the low pressure and high pressure
compressors and the turbine area of such
Engine. All items beyond the Engine
Manufacturer's maintenance manual limits will
be rectified at Lessor's sole cost and
expense. No Engine will be "on watch" for
any reason requiring special or out of
sequence inspection.
(ii) In accordance with the Engine Manufacturer's
MPD, Lessor shall cause Coopesa to perform a
maximum power assurance run and condition,
acceleration and bleed valve scheduling
checks on each Engine. Coopesa will record
and evaluate each Engine's performance, with
Lessee's representatives entitled to be
present. Each Engine shall pass such tests
without operational limitations throughout
the operating envelope in accordance with the
Engine Manufacturer's maintenance manual.
(iii) Lessor shall perform a videotape
borescope inspection of the APU, and all
items beyond the manufacturer's
recommended limits will be rectified at
Lessee's sole cost and expense.
(iv) The Aircraft shall be weighed just prior to
Delivery.
<PAGE>
(c) AIRCRAFT DOCUMENTS: The Aircraft will be
accompanied by the Aircraft Documents listed on
Part 2 of Schedule 2. Lessor will also provide to
Lessee all historical and current maintenance
manuals, aircraft and engine technical records and
data, and other aircraft documentation provided to
the Lessor by the Previous Operator. Upon the
request of Lessee, Lessor shall use reasonable
efforts to obtain any required maintenance and
technical records or documents not in its custody.
(d) ACCEPTANCE FLIGHT: Before the Delivery Date and
following (or during) the Ferry Flight, as
provided in Clause 4.2(g) below, Lessee shall be
entitled to perform an acceptance flight of the
Aircraft of up to two hours with up to four
representatives of Previous Operator and Lessor
on-board as observers (the "Acceptance Flight") in
accordance with Lessee's acceptance flight
protocol. Lessee shall also perform on behalf of
Lessor such further acceptance flights as may be
necessary in the event that the first or
subsequent flights do not confirm that the
Aircraft complies with the delivery requirements
of this Agreement. Lessee shall insure the
Aircraft during all such acceptance flights, and
Lessor shall reimburse Lessee for all of its costs
in connection with all such acceptance flights.
(e) CORRECTION OF DISCREPANCIES: The obligation of
Lessee to lease the Leased Property from Lessor is
subject to Lessor delivering the Leased Property
to Lessee in compliance with the conditions set
forth on Schedule 3. If Lessor corrects all
material discrepancies from the conditions set
forth on Schedule 3 before delivery, or if Lessor
and Lessee agree that Lessor will correct or pay
for their correction as set forth on Annex 2 to
the Certificate of Delivery Condition, then Lessee
shall accept the Leased Property. If, on the
Scheduled Delivery Date, the Aircraft is not, in
all material respects, in the condition set forth
in Schedule 3 and Lessor and Lessee do not agree
upon the correction of or payment for such
material discrepancies within 60 days after the
Scheduled Delivery Date, then Lessee may by notice
to Lessor given not later than 75 days after the
Scheduled Delivery Date terminate this Agreement.
If Lessee fails to give any such termination
notice within 75 days after the Scheduled Delivery
Date, Lessee shall be deemed to have accepted the
Leased Property for all purposes of this
Agreement.
(f) LESSEE'S PRE-DELIVERY MODIFICATIONS: During the
pre-Delivery modifications performed by Coopesa,
Lessee shall be permitted to request that Lessor
cause Coopesa to replace or deactivate certain
aircraft systems identified by Lessee, so long as
such requested maintenance work will not prevent
Lessor from delivering the Aircraft on the
Scheduled Delivery Date and are reasonably agreed
to by Lessor. Lessee shall pay Coopesa, or
reimburse Lessor for, all <PAGE>charges of Coopesa
for performing such replacement or deactivation.
Any materials or components that are removed from
the Aircraft and replaced shall be the property of
Lessee. Any materials or components that are
deactivated or are otherwise removed and not
replaced shall remain the property of Lessor and
be returned to Lessor at Lessor's cost.
(g) FERRY FLIGHT: Following completion of the Ground
Inspection and the correction by Lessor of all
discrepancies discovered during the Ground
Inspection (or, at Lessee's option, the agreement
of Lessor and Lessee to correct some or all of
such discrepancies after Delivery), Lessee shall
irrevocably accept the condition of the Leased
Property (subject in all respects to any
discrepancies from the condition required by this
Clause 4.2 and Schedule 3 discovered during the
Test Flight or during the ferry flight hereinafter
mentioned). Following such technical acceptance
of the Aircraft, Lessee shall ferry the Aircraft
from Coopesa's maintenance facility to the
Delivery Location on behalf of, and pursuant to an
agreement with, the Previous Owner, Previous
Operator and Lessor (the "Ferry Flight"). All
costs and expenses in connection with the ferry
flight shall be borne by Lessee. During the Ferry
Flight, Lessee may at its discretion perform such
portions of its acceptance flight protocol as it
chooses, and any such tests so performed shall
eliminate the need for such portion from the
Acceptance Flight.
4.3 DELAYED DELIVERY
If owing to Coopesa delaying in the completion of the
performance of the pre-Delivery modifications referred
to in Clause 4.2(f) above or any Excusable Delay,
Lessor delays in the delivery of, or fails to deliver,
the Aircraft under this Agreement on the Scheduled
Delivery Date, then in any such case:
(a) 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; and
(b) Lessee will not be entitled to terminate this
Agreement or to reject the Aircraft when tendered
for delivery by Lessor, on the grounds of any such
delay, unless 60 days have elapsed after the
Scheduled Delivery Date and Lessee has given
written notice to Lessor to the effect that Lessee
terminates this Agreement.
4.4 ACCEPTANCE AND RISK
<PAGE>
(a) The Leased Property will be delivered to, and will
be accepted by, the Lessee at the Delivery
Location on the Delivery Date immediately
following satisfaction of the conditions precedent
specified in Clauses 3.1, 3.2 and 3.4 (or their
waiver or deferral by the party entitled to grant
such waiver or deferral).
(b) Immediately following satisfaction of the
conditions precedent specified in Clauses 3.1, 3.2
and 3.4 (or their waiver or deferral by the party
entitled to grant such waiver or deferral), the
Lessee and the Lessor shall forthwith complete
Annex 1 to the Certificate of Delivery Condition
(specifying the maintenance status of the
Airframe, Engines, APU and Landing Gear) and
Lessor and Lessee shall sign and deliver to each
other the Certificate of Acceptance and the
Certificate of Delivery Condition. Delivery of
the signed Certificate of Acceptance to the Lessor
shall constitute deemed delivery of the Aircraft
to the Lessee.
(c) On and from Delivery, the Leased Property will be
in every respect at the sole risk of the Lessee,
which will bear all risk of loss, theft, damage or
destruction to the Leased Property from any cause
whatsoever.
(d) Concurrently with Delivery, Lessor shall file for
recordation this Agreement at the FAA Aircraft
Registry.
50 PAYMENTS
5.1 SECURITY DEPOSIT; LETTER OF CREDIT
(a) SECURITY DEPOSIT: On the date of this Agreement,
Lessee shall pay to Lessor an amount that, when
added to amounts previously paid to Lessor, equal
the Security Deposit. The Security Deposit shall
constitute additional security for performance by
Lessee of its obligations under this Agreement,
and the following provisions shall apply:
(i) If an Event of Default occurs and for as long
as it continues, the Lessor may (but shall
not be obligated to) apply all or any portion
of the Security Deposit in or towards
satisfaction of any sums due and payable to
the Lessor under the Operative Documents or
to compensate the Lessor for any sums which
it may, in its discretion, advance or expend
as a result of any such Event of Default.
Notwithstanding any such use or application
by the Lessor, the Lessee shall remain in
default under this Agreement until the full
amount owed by the Lessee, including interest
accrued thereon pursuant to
<PAGE>Clause 5.11, shall have been paid to
the Lessor. If the Lessor so uses or applies
all or any portion of the Security Deposit,
the Lessee shall, on demand of the Lessor,
replenish the Security Deposit in an amount
equal to the amount so used or applied within
five Business Days after Lessor's demand
therefor.
(ii) Lessor may commingle the Security Deposit
with its general funds and may deposit the
Security Deposit in any account selected by
Lessor, whether interest-bearing or not, and
any interest earned on the Security Deposit
will be the sole property of Lessor.
(iii) The Security Deposit shall be returned
to Lessee within five Business Days of
(1) delivery to Lessor of a Letter of
Credit in accordance with Clause 5.1(b),
(2) redelivery of the Aircraft to the
Lessor in the condition required by
Clause 12 and Schedule 4, or (3) receipt
by the Lessor of the Agreed Value
following a Total Loss and all other
amounts due under Clause 11.1(b);
provided, that if, upon the occurrence
of any event specified in the foregoing
subclause (1), (2) or (3), any amounts
payable by Lessee under this Agreement
remain outstanding, then the Security
Deposit shall be returned to Lessee
within five Business Days of the Lessor
being satisfied that the Lessee has
irrevocably paid to the Lessor all
amounts that are at that time
outstanding under this Agreement.
(b) LETTER OF CREDIT: At any time on or after the
Delivery Date, Lessee shall be entitled, instead
of paying and having the Lessor hold the Security
Deposit in cash in accordance with Clause 5.1(a)
above, to provide the Lessor with the Letter of
Credit. In the event that the Lessee elects to
provide the Letter of Credit, the following
provisions shall apply:
(i) Lessee shall cause the Letter of Credit to be
renewed or replaced by the issuing bank not
later than 30 days before the expiration of
such Letter of Credit, and shall cause the
Letter of Credit to remain in effect, as
renewed, until 90 days after the Expiry Date,
subject to Clause 5.1(b)(iii) below.
(ii) If an Event of Default occurs and for as long
as it continues, the Lessor may (but shall
not be obliged to) call on the Letter of
Credit and use or apply the proceeds in or
towards satisfaction of any sums due and
payable to the Lessor under this Agreement or
to compensate the Lessor for any sums which
it may, in its discretion, advance or expend
as a result of any such Event of Default.
Notwithstanding any <PAGE>such use or
application by the Lessor, the Lessee shall
remain in default under this Agreement until
the full amount owed by the Lessee, including
interest accrued thereon pursuant to Clause
5.11, shall have been paid to the Lessor. If
the Lessor so uses or applies all or any
portion of the amount available under the
Letter of Credit, the Lessee shall
immediately, on demand of the Lessor, procure
the issue of a new Letter of Credit
acceptable to the Lessor for an amount equal
to the amount so used or applied, or shall
pay to the Lessor an amount in cash equal to
the amount so used or applied to be held
pursuant to Clause 5.1(a).
(iii) The Letter of Credit shall be returned to the
Lessee within five Business Days of:
(1) redelivery of the Aircraft to the Lessor
in the condition required by Clause 12
and Schedule 3; or
(2) receipt by the Lessor of the Agreed
Value following a Total Loss and all
other amounts due under Clause 11.1(b);
provided, that if, upon the occurrence of any
event specified in the foregoing subclause (1) or
(2), any amounts payable by Lessee under this
Agreement remain outstanding, then the Letter of
Credit shall be returned to Lessee within five
Business Days of the Lessor being satisfied that
the Lessee has irrevocably paid to the Lessor all
amounts which are at that time outstanding under
this Agreement.
5.2 RENTAL PERIODS
The first Rental Period will commence on the Delivery
Date and each subsequent Rental Period will commence on
the date succeeding the last day of the previous Rental
Period. Each Rental Period will end on the date
immediately preceding the next succeeding Rent Date
except that if a Rental Period would otherwise overrun
the Expiry Date, it will end on the Expiry Date.
5.3 BASIC RENT
(a) TIME OF PAYMENT: The Lessee will pay to the
Lessor or its order Basic Rent in advance on each
Rent Date. Payment must be initiated adequately
in advance of the Rent Date to ensure that the
Lessor receives credit for the payment on the Rent
Date.
<PAGE>
(b) AMOUNT: The Basic Rent payable in respect of each
Rental Period will be the Basic Rent Amount as set
forth in Schedule 1.
5.4 ADDITIONAL RENT
(a) AMOUNT: Subject to the proviso to Clause
7.2(e)(iii), Lessee will pay to Lessor Additional
Rent in relation to each calendar month (or
portion thereof) during the Term on the 12th day
following the end of that calendar month (or, with
respect to the last calendar month during the
Term, on the Expiry Date):
(i) in respect of the Airframe, the Airframe
Additional Rent Rate for each Flight Hour
flown by the Airframe during that calendar
month ("Airframe Additional Rent");
(ii) in respect of the Engines, the Engine
Additional Rent Rate for each Flight Hour
operated by each Engine during that calendar
month ("Engine Additional Rent");
(iii) in respect of the Landing Gear, the Landing
Gear Additional Rent Rate for each Flight
Hour flown by the Airframe during that
calendar month ("Landing Gear Additional
Rent"); and
(iv) in respect of the APU, the APU Additional
Rent Rate for each Flight Hour flown by the
Airframe during that calendar month ("APU
Additional Rent");
(b) ADJUSTMENT: Lessor and Lessee, acting in good
faith, may mutually adjust the amount of
Additional Rent after the Delivery Date, upon
notice from one to the other, not more frequently
than annually based on the following:
(i) by reference to increases in the Consumer
Price Index as released by the Bureau of
Labor Statistics, United States Department of
Labor since the date of this Agreement;
(ii) by reference to Manufacturer's and Engine
Manufacturer's recommendations, industry
experience, any change in the operational
environment of the Aircraft that materially
affects the cost of maintaining the Aircraft
and any change in the Flight Hour to Cycle
ratio of the operation of the Aircraft (it
being understood that the Additional Rent is
based on the assumption that the operation of
the Aircraft during the Term will, on
average, be not less than one Flight Hour for
each Cycle); and
<PAGE>
(iii) by reference to the Actual Costs experienced
by Lessee in the maintenance of the Aircraft
under this Agreement.
5.5 LESSOR'S MONEYS: Lessor and Lessee intend that the
Additional Rent are amounts paid by Lessee to the
Lessor in consideration for the use of the Leased
Property by the Lessee and the satisfaction of the
Lessor's obligations under the Operative Documents and
that, when paid, the Additional Rent is irrevocably and
unconditionally the property of Lessor.
Notwithstanding that stated intent, if and to the
extent that the Additional Rent or any part thereof,
under any Applicable Law or otherwise, is determined to
be security deposits or otherwise the property of
Lessee or if it is so determined those moneys are a
debt owed to Lessee or that the Lessee shall have any
interest in those moneys (the "Lessors's Moneys"),
Lessee and Lessor agree that subclauses (a) and (b)
below shall apply:
(a) To the fullest extent permitted by law and by way
of continuing security, Lessee grants a Security
Interest in the Lessor's Moneys and all rights of
Lessee to payment thereof, the debt represented
thereby and all interest thereon and/or any and
all interest of Lessee therein to Lessor by way of
first priority Security Interest as security for
the Lessee's obligations and liability under this
Agreement (the "Lessee's Liabilities"). Except as
expressly permitted under this Agreement, Lessee
will not be entitled to payment of the Lessor's
Moneys. Lessee will not assign, transfer or
otherwise dispose of all or part of its rights or
interest in the Lessor's Moneys and Lessee agrees
that it will enter into any additional documents
and instruments necessary or reasonably requested
by Lessor or the Mortgagee to evidence, create or
perfect the Lessor's rights to the Lessor's
Moneys.
(b) 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) offset all or any part of the Lessee's
Liabilities against the liabilities of the
Lessor in respect of the Lessor's Moneys; or
(ii) apply or appropriate the Lessor's Moneys in
or towards the payment or discharge of the
Lessee's Liabilities in such order as Lessor
sees fit.
5.6 PAYMENTS
(a) All payments of Rent by the Lessee to the Lessor
under this Agreement will be made for value on the
due date, for the full amount due, in Dollars and
in same day funds, settled through the New York
Clearing House System or <PAGE>such other funds as
may for the time being be customary for the
settlement in New York City of payments in Dollars
by telegraphic transfer to the account of the
Mortgagee at Citibank, N.A., ABA No. 021000089,
Account No. 4068-0522, Reference: "Vanguard
22121".
(b) If any Rent or other payment would otherwise
become due on a day which is not a Business Day,
it shall be due on the immediately succeeding
Business Day.
5.7 GROSS-UP
(a) All payments by the Lessee under or in connection
with this Agreement will be made without offset or
counterclaim, free and clear of and without
deduction or withholding for or on account of any
Taxes (other than Non-Indemnified Taxes that
Lessee is compelled by law to deduct or withhold).
(b) All Taxes (other than Non-Indemnified Taxes) in
respect of payments under this Agreement shall be
for the account of the Lessee.
(c) If the Lessee is compelled by law to make payment
to an Indemnitee under or in connection with this
Agreement subject to any Tax and such Indemnitee
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 (other than
Non-Indemnified Taxes that Lessee is compelled by
law to deduct or withhold), the Lessee will pay
all necessary additional amounts to ensure receipt
by such Indemnitee of the full amount (other than
Non-Indemnified Taxes that Lessee is compelled by
law to deduct or withhold) so provided for.
<PAGE>
5.8 TAXATION
(a) The Lessee will on demand pay and indemnify each
Tax Indemnitee against all Taxes (other than
Non-Indemnified Taxes) levied or imposed against
or upon such Tax Indemnitee or the Lessee and
relating to or attributable to the Lessee, the
Operative Documents or the Aircraft directly or
indirectly in connection with the registration,
ownership, leasing, sub-leasing, 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.
(b) If any Tax Indemnitee shall realize any Tax
savings (by way of refund, deduction, credit or
otherwise) in respect of any amount with respect
to which the Lessee shall have made a payment (or
increased payment) pursuant to Clause 5.7 or 5.10
or shall have indemnified such Tax Indemnitee
pursuant to Clause 5.8(a), or in respect of the
occurrence or transaction which gave rise to such
payment or indemnification, and such Tax savings
shall not have been taken into account previously
in calculating any indemnity payment made by the
Lessee, then such Tax Indemnitee shall, subject to
the Lessee's obligations to repay such amount to
such Tax Indemnitee if the relevant savings are
subsequently disallowed or canceled, pay to the
Lessee the amount of such Tax savings (together
with, in the case of a refund, any interest
received thereon); provided, that no Tax
Indemnitee shall be obliged to make any payment to
the Lessee pursuant to this Clause 5.8(b) to the
extent that the amount of any Tax savings in
respect of which such payment is to be made would
exceed the aggregate amount of all prior payments
made by the Lessee to, on behalf of or as
indemnification of such Tax Indemnitee under this
Agreement for Taxes less the amount of all prior
payments made pursuant to this Clause 5.8(b) in
respect of such Tax savings. The Lessee
acknowledges that nothing contained in this Clause
5.8(b) shall interfere with the right of any Tax
Indemnitee to arrange its tax affairs in
whatsoever proper manner it thinks fit and, in
particular, no Tax Indemnitee shall be under any
obligation to claim any Tax savings in priority to
any other savings available to it; provided, that
subject to the foregoing each Tax Indemnitee shall
use reasonable good faith diligence to realize Tax
savings as described above.
5.9 INFORMATION
<PAGE>
If Lessee is required by any Applicable Law, or by any
third party, to deliver any report or return in
connection with any Taxes (other than Non-Indemnified
Taxes), the Lessee will duly complete the same and, in
particular, will not state therein that any Person
other than Lessee is responsible for the use and
operation of the Aircraft and for the Taxes (other than
Non-Indemnified Taxes) arising therefrom, and the
Lessee will, on request, supply a copy of the report or
return to any Tax Indemnitee. If Lessee requires any
information or cooperation from any Tax Indemnitee in
order to satisfy its obligations as set forth above,
such Tax Indemnitee shall promptly furnish such
information or cooperation as Lessee may reasonably
request upon written request by Lessee. If actual
notice is given by any taxing authority to Lessor that
a report or return is required to be filed with respect
to any Taxes (other than Non-Indemnified Taxes), the
Lessor shall promptly notify Lessee of such required
report or return.
5.10 TAXATION OF INDEMNITY PAYMENTS
(a) If and to the extent that any sums payable to any
Tax Indemnitee by Lessee under this Agreement by
way of indemnity are insufficient, by reason of
any Taxes (other than Non-Indemnified Taxes)
payable in respect of those sums, for such Tax
Indemnitee to discharge the corresponding
liability to the relevant third party (including
any taxation authority), or to reimburse such Tax
Indemnitee for the cost incurred by it to a third
party (including any taxation authority), Lessee
will pay to such Tax Indemnitee such sum as will,
after the tax liability has been fully satisfied,
leave such Tax Indemnitee with the same amount as
it would have been entitled to receive in the
absence of that liability, together with interest
on the amount of the deficit at the Default Rate
in respect of the period commencing on the date on
which the payment of taxation is finally due until
payment by the Lessee (both before and after
judgment).
(b) If and to the extent that any sums constituting
(directly or indirectly) an indemnity to any Tax
Indemnitee but paid by the Lessee to any Person
other than such Tax Indemnitee are treated as
taxable in the hands of such Tax Indemnitee (other
than as a result of Non-Indemnified Taxes), then
Lessee will pay to such Tax Indemnitee such sum as
will, after the tax liability has been fully
satisfied, indemnify such Tax Indemnitee 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 Clause 5.10(b) at the Default Rate in respect
of the period commencing on the date on which the
payment of taxation is finally due until payment
by the Lessee (both before and after judgment).
<PAGE>
5.11 DEFAULT INTEREST
If the Lessee fails to pay any amount payable under
this Agreement on the due date, the Lessee will pay on
demand from time to time to Lessor or any Financing
Party (as the case may be) interest (both before and
after judgment) at the Default Rate on such amount from
the due date to the day of payment in full by Lessee to
Lessor or such Financing Party. All such interest
shall be compounded monthly and calculated on the basis
of the actual number of days elapsed assuming a year of
360 days.
5.12 CONTEST
If written claim is made against any Tax Indemnitee for
or with respect to any Taxes (other than
Non-Indemnified Taxes), such Tax Indemnitee shall
promptly notify the Lessee. If reasonably requested by
the Lessee in writing within 30 days after such
notification, such Tax Indemnitee shall, upon receipt
of indemnity satisfactory to such Tax Indemnitee and at
the expense of the Lessee (including all reasonable
out-of-pocket costs, expenses, losses, legal and
accountants' fees and disbursements, penalties and
interest), in good faith contest or to the extent
permissible by law allow Lessee to contest in Lessee's
or such Tax Indemnitee's name, the validity,
applicability or amount of such Taxes by either (i)
resisting payment thereof if practicable and permitted
by Applicable Law, or (ii) if payment is made, using
reasonable efforts to obtain a refund thereof in
appropriate administrative and judicial proceedings,
and in the contest of any such claim by any Tax
Indemnitee, such Tax Indemnitee shall apprise the
Lessee of all material developments with respect to
such contest, shall forward copies of all material
submissions made in such contest and shall materially
comply in good faith with any reasonable request
concerning the conduct of any such contest; provided,
that no Tax Indemnitee will be obliged to take any such
action:
(a) if it waives its right under this Agreement to the
indemnity at issue in such contest; or
(b) unless there is a reasonable basis for such
contest, and if the amount of Tax in controversy
exceeds $50,000, Lessee provides such Tax
Indemnitee with an opinion of independent tax
counsel satisfactory to such Tax Indemnitee, both
as to counsel and substance, to the effect that
there is a reasonable basis for such contest; or
(c) for which Lessee has not made adequate provision
to the reasonable satisfaction of the Lessor or
such Financing Party (as the case may be) in
respect of the expense concerned; or
<PAGE>
(d) if such action gives 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 the Lessor or
any Financing Party.
If any Tax Indemnitee, in accordance with the
foregoing, determines to pay such Taxes and seek a
refund, Lessee will either pay such Taxes on such Tax
Indemnitee's behalf and pay such Tax Indemnitee any
amount due with respect to such payment or will
promptly reimburse such Tax Indemnitee for such Taxes.
If any Tax Indemnitee shall obtain a refund of all or
any part of such Taxes paid by the Lessee, such Tax
Indemnitee shall pay Lessee the amount of such refund;
provided, that such amount shall not be payable before
such time as the Lessee shall have made all payments or
indemnities to any Tax Indemnitee then due with respect
to Taxes and so long as no Default has occurred and is
continuing. If in addition to such refund any Tax
Indemnitee shall receive an amount representing
interest, attorneys fees or any other amount with
respect to such refund, Lessee shall be paid that
proportion of such interest, attorneys fees or any
other amount which is fairly attributable to the Taxes
paid by the Lessee prior to the receipt of such refund.
No Tax Indemnitee shall enter into a settlement or
other compromise with respect to, or otherwise concede,
any claim by a taxing authority on account of Taxes
being contested by Lessee pursuant to this Clause 5.12
without the written consent of Lessee, which consent
shall not be unreasonably withheld. If a Tax
Indemnitee enters into a settlement or other compromise
without the written consent of Lessee in accordance
with the preceding sentence, such Tax Indemnitee shall
be deemed to have waived its right to be indemnified by
Lessee with respect to such claim (but not with respect
to any future claims).
5.13 ABSOLUTE
Lessee's obligations under this Agreement are absolute
and unconditional irrespective of any contingency
whatever including (but not limited to):
(a) any right of offset, counterclaim, recoupment,
defense or other right which either party to this
Agreement may have against the other;
(b) any unavailability of the Aircraft for any reason,
including a requisition of the Aircraft or any
prohibition or interruption of, interference with
or other restriction against the Lessee's use,
operation or possession of the Aircraft;
(c) any lack or invalidity of title or any other
defect in title, 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 <PAGE>or documentation under the laws
of any relevant jurisdiction, or any Total 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
the Lessor or the Lessee;
(e) any invalidity, unenforceability or lack of due
authorization of, or other defect in, this
Agreement; or
(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 the Lessee under this Agreement;
provided always, however, that this Clause 5.13 shall
be without prejudice to the Lessee's right to claim
damages and other relief from the courts in the event
of any breach by the Lessor of its obligations under
this Agreement, or in the event that, as a result of
any lack or invalidity of title to the Aircraft on the
part of the Lessor, the Lessee is deprived of its
possession of the Aircraft.
6. MANUFACTURER'S WARRANTIES
6.1 ASSIGNMENT
Notwithstanding this Agreement and subject to the
rights of Mortgagee pursuant to the Assignment, the
Lessor will remain entitled to the benefit of each
warranty, express or implied, and any unexpired
customer and/or product support given or provided in
respect of the Aircraft, any Engine or Part by any
manufacturer, vendor, maintenance performer,
subcontractor or supplier. Unless an Event of Default
shall have occurred and be continuing, Lessor hereby
authorizes Lessee to pursue any claim thereunder in
relation to defects affecting the Aircraft, any Engine
or Part, and the Lessee agrees diligently to pursue any
such claim which arises at its own cost. The Lessee
will notify the Lessor promptly upon becoming aware of
any such claim. The Lessor will provide such
assistance to the Lessee in making a claim under any
such warranties or customer and/or product support as
the Lessee may reasonably request, and, if requested by
the Lessee and at the Lessee's expense, will pursue a
claim in its own name where the relevant manufacturer,
vendor, maintenance performer, subcontractor or
supplier has refused to acknowledge the Lessee's right
to pursue that claim.
<PAGE>
6.2 PROCEEDS
Unless an Event of Default shall have occurred and be
continuing, all proceeds of any such claim as is
referred to in Clause 6.1 and which exceed $250,000
will be paid directly to Lessor at the account set
forth in Clause 5.6(a), but if and to the extent that
such claim relates:
(a) to defects affecting the Aircraft which the Lessee
has rectified; or
(b) to compensation for loss of use of the Aircraft,
an Engine or any Part during the Term; or
(c) to costs incurred by the Lessee in pursuing such
claim (whether or not proceeds of such claim are
payable to the Lessee);
and provided no Default shall have occurred and be
continuing, the proceeds will be promptly paid to the
Lessee by Lessor but, in the case of (a), only on
receipt of evidence reasonably satisfactory to Lessor
that Lessee has rectified the relevant defect.
6.3 PARTS
Except to the extent the Lessor otherwise agrees in a
particular case, the Lessee will procure that all
engines, components, furnishings or equipment provided
by the manufacturer, vendor, maintenance performer,
subcontractor or supplier as a replacement for a
defective Engine or Part pursuant to the terms of any
warranty or customer and/or product support arrangement
comply with Clause 8.13(a), are installed on the
Aircraft promptly and that title thereto vests in the
Lessor in accordance with Clause 8.17(a). On
installation those items will be deemed to be an Engine
or Part, as applicable.
6.4 AGREEMENT
To the extent any warranties or customer and/or product
support relating to the Aircraft are made available
under an agreement between any manufacturer, vendor,
maintenance performer, subcontractor or supplier and
the Lessee, this Clause 6 is subject to that agreement.
However, Lessee will:
(a) pay the proceeds of any claim thereunder that
exceed $250,000 to Lessor at the account set forth
in Clause 5.6(a) to be applied pursuant to
Clause 6.2 and, pending such payment, will hold
the claim and the proceeds on trust for Lessor;
and
<PAGE>
(b) take all such steps as are necessary and requested
by the Lessor at the end of the Term to ensure the
benefit of any of those warranties or customer
and/or product support which have not expired are
vested in the Lessor (but subject to the rights of
Mortgagee under the Mortgage).
7. LESSOR'S COVENANTS and DISCLAIMERS
7.1 QUIET ENJOYMENT
Provided no Event of Default shall have occurred and be
continuing, none of the Lessor, its successors and
assigns, any Financing Party or any Person claiming by,
through or on account of any of such parties will
interfere with the quiet use, possession and enjoyment
of the Aircraft by the Lessee.
7.2 LESSOR'S MAINTENANCE CONTRIBUTION
(a) AIRFRAME REIMBURSABLE EXPENSES:
(i) Upon the performance by Lessee of a Heavy
Check on the Airframe during the Term of this
Lease, the Lessee's Actual Costs incurred in
completing, with respect to the Airframe, all
routine Heavy Check tasks shall constitute
"Airframe Reimbursable Expenses".
(ii) In connection with the performance of any
part of a Heavy Check, Lessee shall present
written evidence satisfactory to Lessor as to
the workscope to be performed and payment
installments relating to the performance
thereof in connection with such Heavy Check
and the amount of the Airframe Reimbursable
Expenses for approval by Lessor. Upon
receipt of such written evidence, and
provided there then exists no Default, Lessor
shall pay to Lessee, or to the independent
repair facility performing such work if
directed by Lessee, an amount equal to the
lesser of (i) the Airframe Reimbursable
Expenses or (ii) an amount equal to (1) all
Airframe Additional Rent previously paid by
Lessee under this Lease, minus (2) all
previous payments by Lessor under this Clause
7.2(a).
<PAGE>
(b) ENGINE REIMBURSABLE EXPENSES:
(i) Upon the accomplishment of any CER for any
Engine during the Term requiring shop repair,
including any premature removal of an Engine
due to accelerated performance deterioration
revealed by Lessee's trend monitoring data
and replacement of LLPs during any such shop
visit, the Lessee's Actual Cost incurred in
completing such CER shall constitute "Engine
Reimbursable Expenses".
(ii) Upon accomplishment of any CER for an Engine,
Lessee shall present written evidence
satisfactory to Lessor as to the completion
of such CER to such Engine and the amount of
Engine Reimbursable Expenses for approval by
Lessor. Such shop visit shall include a
build standard to be mutually agreed upon by
Lessor and Lessee. Upon receipt of such
written evidence, and provided there then
exists no Default, Lessor shall pay to
Lessee, or to the independent repair facility
performing such work if directed by Lessee,
an amount equal to the lesser of (i) the
Engine Reimbursable Expenses with respect to
such Engine or (ii) an amount equal to (1)
all Engine Additional Rent previously paid by
Lessee for such Engine pursuant to this
Lease, minus (2) all previous payments for
such Engine by Lessor under this Clause
7.2(b).
(c) LANDING GEAR REIMBURSABLE EXPENSES:
(i) Upon the performance by Lessee of an overhaul
of any Landing Gear or the replacement of
LLPs of any Landing Gear, in each case in
accordance with the Agreed Maintenance
Program, the Lessee's Actual Cost incurred in
completing such overhaul shall constitute
"Landing Gear Reimbursable Expenses".
(ii) Upon accomplishment of any such overhaul,
Lessee shall present written evidence
satisfactory to Lessor as to the completion
of such overhaul and the amount of Landing
Gear Reimbursable Expenses for approval by
Lessor. Upon receipt of such written
evidence, and provided there then exists no
Default, Lessor shall pay to Lessee, or to
the independent repair facility performing
such work if directed by Lessee, an amount
equal to the lesser of (i) the Landing Gear
Reimbursable Expenses or (ii) an amount equal
to (1) all Landing Gear Additional Rent
previously paid by Lessee pursuant to this
Lease, minus (2) all previous payments by
Lessor under this Clause 7.2(c).
<PAGE>
(d) APU REIMBURSABLE EXPENSES:
(i) Upon the performance by Lessee of an overhaul
of the APU in accordance with the Agreed
Maintenance Program, the Lessee's Actual Cost
incurred in completing such overhaul shall
constitute "APU Reimbursable Expenses".
(ii) Upon accomplishment of any such overhaul,
Lessee shall present written evidence
satisfactory to Lessor as to the completion
of such overhaul and the amount of APU
Reimbursable Expenses for approval by Lessor.
Upon receipt of such written evidence, and
provided there then exists no Default, Lessor
shall pay to Lessee, or to the independent
repair facility performing such work if
directed by Lessee, an amount equal to the
lesser of (i) the APU Reimbursable Expenses
or (ii) an amount equal to (1) all APU
Additional Rent previously paid by Lessee
pursuant to this Lease, minus (2) all
previous payments by Lessor under this Clause
7.2(d).
(e) ADDITIONAL PROVISIONS:
(i) Notwithstanding the provisions of Clauses
7.2(a)(i), (b)(i), (c)(i) and (d)(i),
Reimbursable Expenses shall not include the
cost of (1) any replacements or repairs
caused by foreign object damage, ingestion,
accident, faulty maintenance or installation,
any incident, improper operations, abuse,
neglect, misuse or elective parts replacement
(except to the extent ordinarily accomplished
during such maintenance or overhaul), (2) any
modifications or interior reconfiguration,
(3) the accomplishment of all airworthiness
directives or manufacturer's service
bulletins not incorporated into the
Maintenance Program, (4) maintenance work
that is reimbursable by a claim under the
manufacturer's warranties or by insurance
(but including deductibles for purposes of
this provision) or (5) any overhaul of time
controlled components accomplished during the
Heavy Check, CER or overhaul except such as
are part of the routine tasks included at
such Heavy Check, CER or overhaul or that,
when tested during such Heavy Check, CER or
overhaul, fail and need to be replaced.
(ii) Notwithstanding anything to the contrary
contained in this Clause 7.2, any such
maintenance and the extent and nature of such
maintenance to be performed shall be
conducted at an Agreed Maintenance Performer.
Lessor shall be entitled to have
representatives present <PAGE>during the
performance of such maintenance to oversee
and approve all aspects of such performance,
including the workscope thereof to ensure
that such maintenance is in accordance with
the Agreed Maintenance Program. Lessor shall
be notified by Lessee prior to the
commencement of any maintenance work
described in this Clause 7.2, including as to
the Agreed Maintenance Performer and for
Lessor's approval of the workscope.
(iii) Lessee acknowledges that Lessee is required
to pay the full cost of and to perform (or
cause to be performed) any check, shop visit,
overhaul or other maintenance required by the
Agreed Maintenance Program, whether or not
Lessor is required to make any payments
pursuant to this Clause 7.2, and any costs
incurred by Lessee in performing any such
check, shop visit, overhaul or other
maintenance required by the Agreed
Maintenance Program shall be for Lessee's
account solely; provided, that if Lessor's
contribution pursuant to Clause 7.2(a), (b),
(c) or (d) above is ever less than the
Reimbursable Expenses incurred by Lessee with
respect to the Airframe, Engines, Landing
Gear or APU, then Lessee's obligation under
Clause 5.4 to make payments of Additional
Rent with respect to the Airframe, Engines,
Landing Gear or APU, respectively, shall be
suspended until an equivalent amount to such
shortfall has been retained by Lessee.
(iv) Lessor shall deposit all Additional Rent in
an interest-bearing account with the
Mortgagee or with another financial
institution that Mortgagee uses for other
similar amounts deposited with it. Lessor
shall not commingle its general funds in such
account, but such account may hold security
deposits, additional rent and similar
payments paid to Affiliates of Lessor under
other aircraft leases. Any interest earned
on the Additional Rent will be added to and
become a part of the Additional Rent.
7.3 LESSOR'S ENGINE MAINTENANCE CONTRIBUTION
Provided no Default has occurred and is continuing,
upon the performance by Lessee of the first CER during
the Term on the Engine bearing manufacturer's serial
number 702943, Lessor will pay to Lessee, by way of
contribution to the cost of maintenance of the
Aircraft, an amount equal to the product of (a) the
difference between 4,000 Flight Hours or Cycles
(whichever is more limiting) and the number of Flight
Hours or Cycles, as the case may be, remaining to the
first limiter on such Engine at Delivery, multiplied by
(b) the Engine Additional Rent Rate then in effect.
<PAGE>
7.4 LESSOR'S AD COST SHARING CONTRIBUTION
(a) Provided no Default has occurred and is
continuing, upon the performance by Lessee of
"Qualifying AD Work" (as hereinafter defined)
relating to (i) any single airworthiness directive
issued by the Aviation Authority after the
Delivery Date and requiring terminating action
during the Term, (ii) any FAR regulation
promulgated after the Delivery Date requiring the
installation on the Aircraft during the Term of a
16-parameter flight data recorder or (iii) any FAR
regulation promulgated after the Delivery Date
requiring the installation in the cargo
compartment of the Aircraft during the Term of
fire indicators, Lessor will pay to Lessee, by way
of contribution to the cost of maintenance of the
Aircraft, an amount equal to the product of
(1) the amount by which the Actual Cost of the
Qualifying AD Work for such single airworthiness
directive or either of such regulations exceeds
$50,000, multiplied by (2) a fraction the
numerator of which is 84 minus the number of
months (rounded to the nearest whole number of
months) from the Delivery Date to the date of
completion of such Qualifying AD Work and the
denominator is 84.
(b) "Qualifying AD Work" means maintenance work
performed on the Aircraft solely in order to
comply fully with airworthiness directives issued
by the Aviation Authority after the Delivery Date
on a terminating action basis or with the two FAR
regulations described in Clause 7.4(a)(ii) and
(iii), and excluding work performed for any other
purpose, such as compliance with airworthiness
directives by means of repetitive inspections,
recording compliance work in the Aircraft
Documents and all other maintenance work.
(c) The Lessor will be obligated to pay any amount
specified in Clause 7.4(a) within 14 days after
submission by the Lessee to the Lessor of an
invoice and supporting documentation reasonably
satisfactory to the Lessor evidencing the
performance of Qualifying AD Work for an
airworthiness directive.
<PAGE>
7.5 REGISTRATION AND FILINGS
The Lessor shall, at the Lessor's cost:
(a) maintain the registration of the Aircraft with the
Aviation Authority reflecting (so far as permitted
by Applicable Law) the respective interests of
Lessor and Lessee and not do or suffer to be done
anything which might reasonably be expected to
adversely affect that registration; and
(b) do all acts and things (including making any
filing or registration with the Aviation Authority
or any other Government Entity) as may be required
following any change in the ownership or financing
of the Aircraft.
7.6 AGREED MAINTENANCE PERFORMERS
The Lessor may object to and may exclude any
maintenance organization (other than Lessee) being
included as an "Agreed Maintenance Performer" for a
valid business reason; provided, that Lessor must
provide such objection within 45 days of scheduled
maintenance. The Lessor shall furnish to Lessee in
writing from time to time a list of all maintenance
organizations excluded from the definition of "Agreed
Maintenance Performer" pursuant to the preceding
sentence, which list may be amended by Lessor from time
to time. The Lessor and the Lessee shall consult in
good faith regarding any organizations on such list
from time to time at the request of either party.
7.7 EXCLUSION
THE AIRCRAFT IS ACCEPTED BY THE LESSEE "AS IS, WHERE IS
WITH ALL FAULTS" AND LESSEE AGREES AND ACKNOWLEDGES
THAT, SAVE AS IS 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 CONDITIONS, WARRANTIES OR REPRESENTATIONS,
EXPRESS OR IMPLIED, WITH RESPECT TO THE AIRCRAFT,
INCLUDING:
(a) THE DESCRIPTION, AIRWORTHINESS, MERCHANTABILITY,
FITNESS FOR ANY 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 (BUT EXCLUDING ANY
SUCH OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY
IN TORT WHICH ARISES <PAGE>FROM LESSOR'S GROSS
NEGLIGENCE OR WILFUL MISCONDUCT); OR
(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, INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES.
7.8 LESSEE'S WAIVER
LESSEE HEREBY WAIVES, AS BETWEEN ITSELF AND THE LESSOR,
ALL ITS RIGHTS IN RESPECT OF ANY CONDITION, 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 AS IS OTHERWISE EXPRESSLY STATED IN
THIS AGREEMENT.
7.9 LESSEE'S CONFIRMATION
LESSEE CONFIRMS THAT IT IS FULLY AWARE OF THE
PROVISIONS OF CLAUSES 7.7 AND 7.8 AND ACKNOWLEDGES THAT
BASIC RENT AND OTHER AMOUNTS HAVE BEEN CALCULATED
NOTWITHSTANDING ITS PROVISIONS.
8. LESSEE'S COVENANTS
8.1 DURATION
The undertakings in this Clause 8 and in Clause 12
will:
(a) except as otherwise stated, be performed at the
expense of the Lessee; and
(b) remain in force until redelivery of the Aircraft
to the Lessor in accordance with this Agreement
and thereafter to the extent of any accrued rights
of the Lessor in relation to those undertakings.
8.2 INFORMATION
The Lessee shall:
(a) furnish to the Lessor, with a copy to Mortgagee:
<PAGE>
(i) within 60 days after the last day of the
first three fiscal quarters of each fiscal
year of the Lessee, unaudited consolidated
quarterly financial statements of the Lessee
prepared for such quarter, including a
consolidated balance sheet of the Lessee and
its Subsidiaries as of the last day of such
quarter and consolidated statements of income
and retained earnings for such fiscal quarter
and for the year to date and, on a
comparative basis, figures for the
corresponding periods of the immediately
preceding fiscal year, all in reasonable
detail, each such statement to be certified
in a certificate of Lessee's chief financial
officer or chief accounting officer as fairly
presenting the financial position and the
results of operations of the Lessee as at its
date and for such quarter (subject to year-end
audit adjustments) and as having been
prepared in accordance with GAAP;
(ii) as soon as available but not in any event
later than 105 days after the last day of
each fiscal year of the Lessee, audited
consolidated financial statements of the
Lessee prepared for such year, including a
consolidated balance sheet of the Lessee and
its Subsidiaries as of the last day of such
year, consolidated statements of income and
retained earnings of the Lessee and its
Subsidiaries for such fiscal year, a
consolidating balance sheet of the Lessee and
its Subsidiaries as of the last day of such
year and consolidating statements of income
and retained earnings of the Lessee and its
Subsidiaries for such fiscal year and in all
cases on a comparative basis figures for the
immediately preceding fiscal year, all in
reasonable detail, each prepared in
accordance with GAAP and certified without
qualification by Ernst & Young or another of
the largest international firms of
independent certified public accountants as
fairly presenting the financial position and
the results of operations of Lessee and its
Subsidiaries at the end of and for such
fiscal year and as having been prepared in
accordance with GAAP;
(iii) in lieu of delivering the financial
statements referred to in sub-clauses (i) and
(ii) above, (1) Lessee may deliver Quarterly
Reports on Form 10-Q and Annual Reports on
Form 10-K for the respective periods filed by
the Lessee pursuant to and in accordance with
the Securities Exchange Act of 1934, as
amended, and (2) Lessee may cause such
financial statements (or 10-Qs and 10-Ks) to
be publicly available on the internet through
EDGAR filings with the Securities and
Exchange Commission or otherwise;
<PAGE>
(iv) at the same time as it is issued to the
creditors of the Lessee, a copy of each
notice or circular issued to the Lessee's
creditors as a group; and
(v) on request from time to time such other
information regarding the Lessee and its
business and affairs as the Lessor or
Mortgagee may reasonably request;
(b) on request, inform the Lessor as to the current
location of the Airframe and Engines and the
serial number and owner of any engine installed on
the Airframe;
(c) promptly furnish to Lessor all information that
Lessor from time to time reasonably requests
regarding the Aircraft, any Engine or any Part and
its use, location and condition, including the
hours available on the Aircraft and any Engine
until the next scheduled check, inspection,
overhaul or shop visit, as the case may be;
(d) on request, furnish to the Lessor evidence
reasonably satisfactory to the Lessor that all
Taxes and charges incurred by the Lessee with
respect to the Aircraft have been paid and
discharged in full;
(e) provide to the Lessor, within five days following
the end of each calendar month during the Term, a
monthly report on the Aircraft in the form set out
in Exhibit F or such other form as the Lessee may
select providing substantially the same
information;
(f) promptly notify Lessor and Mortgagee of:
(i) any Total Loss, any Engine Loss, any theft of
the Airframe or any Engine, any damage to the
Aircraft if the potential cost of repair may
reasonably be expected to exceed the Damage
Notification Threshold or any modification to
the Aircraft if the potential cost may
reasonably be expected to exceed the Damage
Notification Threshold;
(ii) any claim or other occurrence likely to give
rise to a claim under the Insurances (but, in
the case of hull claims only, in excess of
the Damage Notification Threshold) and
details of any negotiations with the
insurance brokers over any such claim; and
(iii) any litigation, arbitration or administrative
proceedings that are pending or, to the
Lessee's knowledge, threatened against the
Lessee <PAGE>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.
8.3 LAWFUL AND SAFE OPERATION
The Lessee shall:
(a comply with all Applicable Law for the time being
in force in any country or jurisdiction in which
the Aircraft is being operated which is applicable
to the Aircraft or the use and operation of the
Aircraft;
(b) not use the Aircraft in any manner contrary to any
requirement or regulation of the Aviation
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 Aviation Authority
and Applicable Law;
(d) use the Aircraft solely in commercial or other
operations for which the Lessee is duly authorized
by the Aviation Authority and Applicable Law;
(e) not knowingly use the Aircraft (or use it when the
Lessee ought reasonably to have known that it was
being so used) for the carriage of:
(i) whole animals, living or dead, except in the
cargo compartments according to IATA
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 cargo
aircraft under the "Restriction of Goods"
schedule issued by IATA 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
<PAGE>
(iv) any item or substance whose carriage is
illegal under Applicable Law;
(f) not utilize the Aircraft for purposes of training,
qualifying or re-confirming the status of cockpit
personnel except for the benefit of the 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 the Lessee;
(g) not (other than for bona fide safety reasons)
cause or permit the Aircraft to proceed to, or
remain at, any location which is for the time
being the subject of a prohibition order (or any
similar order or directive) by:
(i) any Government Entity of the State of
Registration; or
(ii) any Government Entity of the country in which
such location is situated; or
(iii) any Government Entity having
jurisdiction over the Lessee or the
Aircraft;
(h) obtain and maintain in full force all
certificates, 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 the Lessee with
its other obligations under, this Agreement.
8.4 TAXES AND OTHER CHARGES
The Lessee will promptly pay:
(a) all license and registration fees, Taxes (other
than Non-Indemnified Taxes) and other amounts of
any nature imposed by any Government Entity that
are imposed on the Lessee or for which the Lessee
is responsible under this Agreement with respect
to the Aircraft, including the purchase,
ownership, delivery, leasing, possession, use,
operation, return, sale or other disposition of
the Aircraft; and
(b) all rent, fees, charges, Taxes (other than
Non-Indemnified Taxes) imposed on the Lessee and
other amounts in respect of any premises where the
Aircraft or any Part thereof is located from time
to time during the Term;
except to the extent that such payment is being contested in
good faith by appropriate proceedings in accordance with
Clause 5.12.
<PAGE>
8.5 SUB-LEASING
Lessee will not sub-lease or otherwise part with
possession of the Aircraft, the Engines or any Part
except that the 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 an Agreed Maintenance
Performer for service, repair, maintenance or
overhaul work or for alterations, modifications or
additions to the extent required or permitted by
this Agreement;
(b) with respect to an Engine or Part, as expressly
permitted by this Agreement;
(c) with respect to the Aircraft or an Engine,
pursuant to an ACMI (aircraft crew, maintenance
and insurance) "wet" lease or charter of the
Aircraft in which operational control of the
Aircraft remains with the Lessee at all times,
provided the Aircraft remains registered with the
Aviation Authority;
(d) with respect to the Aircraft or an Engine, and
with the consent of Lessor and Mortgagee (which
consent shall not be unreasonably withheld),
pursuant to a sublease to a certificated air
carrier under the following conditions:
(i) no Default shall have occurred and be
continuing;
(ii) notwithstanding such sublease, Lessee shall
remain primarily responsible to Lessor
hereunder and the sublease, by its terms,
shall be expressly subject and subordinate in
all respect to this Agreement;
(iii) the sublease shall include clauses
identical to or having the same
substantive effect as Clauses 2.1, 2.2,
5, 7.7, 7.8, 8, 9, 10, 13, 15.11 and
Schedule 5 of this Agreement, except
that a sublease may impose additional or
more stringent obligations on, or give
fewer rights to, any sublessee than are
imposed on Lessee under the provisions
of this Agreement and that the term of
the sublease shall not be capable of
extending beyond the Expiry Date;
provided, that any sublease to a
certificated air carrier that is an
Affiliate of Lessee (an "Affiliate
Sublease") need only include clauses
identical to or having the same
substantive effect as Clauses 8 and 9
and Schedule 5 of this Agreement;
<PAGE>
(iv) the rights, title and interests of Lessor and
the Financing Parties in and to the Leased
Property and this Agreement shall be duly
evidenced and protected to the satisfaction
of Lessor and such Financing Parties
(including as to the making of all necessary
filings and registrations) and such interests
shall not, in Lessor's reasonable opinion, be
prejudiced by the sublease;
(v) Lessee and the sublessee shall have executed
and delivered to Lessor a security assignment
in respect of the sublease together with an
acknowledgment of such assignment, each such
document to be in such form as Lessor and
Mortgagee shall reasonably require;
(vi) the sublessee shall be a reputable air
carrier, experienced in operating aircraft of
the same type as the Aircraft, shall hold all
necessary consents, licenses, permits and
authorizations required under the applicable
law of the state of incorporation or
establishment of such carrier for the public
transport of passengers and cargo, and shall
not be subject to any event of the types
described in Clauses 13.1(g), (h) or (i) as
of the commencement of the sublease;
(vii) the Aircraft shall not be based or re-registered
outside the State of Registration if the
Lessor or Mortgagee
determines, in its absolute discretion,
that the foreign jurisdiction is not
acceptable in terms of political and
judicial risk;
(viii) Lessee shall give written notice to
Lessor and the Financing Parties of any
proposed sublease at least 30 days prior
to the date on which it is proposed that
such sublease be executed (which notice
shall include the identity of any
proposed change in the State of
Registration and, if then determined,
the term and the delivery date of the
proposed Sublease), and within a
reasonable period prior to the execution
by Lessee of any sublease, Lessee will
provide Lessor and the Financing Parties
with a copy of the draft sublease in
order for Lessor and the Financing
Parties to satisfy themselves that the
conditions set out in this Clause 8.5(d)
as to the form of the sublease are
fulfilled; provided, that in connection
with an Affiliate Sublease that does not
contemplate a change in the State of
Registration, Lessee need only give
Lessor and the Financing Parties written
notice of such Affiliate Sublease five
days prior to the date on which such
Affiliate Sublease is proposed to be
executed;
<PAGE>
(ix) prior to delivery of the Aircraft to the
sublessee under any sublease, Lessee shall
deliver to Lessor an original counterpart of
the sublease duly executed by Lessee and
sublessee, and except in connection with an
Affiliate Sublease shall provide Lessor with
the equivalent of the conditions precedent
set forth in Clause 3.1 and 3.2 applicable to
such sublessee;
(x) Lessee shall be responsible for all
reasonable costs incurred by Lessor and any
Financing Party in connection with the
Sublease; and
(xi) the sublease shall provide that no further
subleases of the Aircraft by the sublessee
shall be permitted.
8.6 INSPECTION
(a) Lessor, any Financing Party and any Person
designated by Lessor or any Financing Party may at
any time visit, inspect and survey the Aircraft,
any Engine or any Part and for such purpose may,
subject to any applicable Aviation Authority
regulation, travel on the flight deck as observer.
Subject to Clause 8.6(c)(ii) below, Lessor, any
Financing Party or any designee shall not be
restricted during such inspection from opening any
panels, bays or doors on the Aircraft or from
inspecting any part of the Aircraft.
(b) Lessee shall have no responsibility for the costs
and expenses of Lessor and any Financing Party in
connection with any such visit, inspection or
survey.
(c) The Lessor shall:
(i) have no duty to make, or liability arising
out of, any such visit, inspection or survey;
and
(ii) so long as no Default has occurred and is
continuing, not exercise such right other
than on reasonable notice and so as not to
disrupt unreasonably the maintenance or
operation of the Aircraft.
8.7 PROTECTION OF TITLE
The Lessee shall:
(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 respective rights, title and
interest of Mortgagee as mortgagee <PAGE>of the
Aircraft and assignee of this Agreement or the
Lessor as owner of the Aircraft and lessor under
this Agreement or the validity, enforceability or
priority of the Mortgage and the Assignment;
(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 the
Lessor and is subject to the Mortgage;
(c) not at any time:
(i) represent or hold out the Lessor or any
Financing Party 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 the Lessee; or
(ii) pledge the credit of the Lessor or any
Financing Party;
(d) ensure that there is always affixed, and not
removed or in any way obscured, a fireproof plate
(having dimensions of not less than 6 in. x 4 in.)
in a reasonably prominent position on the Aircraft
and on each Engine stating:
"This [Aircraft/Engine] is owned by
Aircraft 22121, Inc., is leased to
Vanguard Airlines, Inc. and is subject
to a mortgage and security agreement in
favor of FINOVA Capital Corporation. It
may not be operated by any other person
without the prior written consent of
Aircraft 22121, Inc. and FINOVA Capital
Corporation."
(e) not create or permit to exist any Security
Interest upon the Aircraft, any Engine or any
Part, except Permitted Liens;
(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, appropriation, damage or
destruction and, without prejudice to the
foregoing, if any such penalty, forfeiture,
impounding, detention, appropriation, damage or
destruction occurs, give the Lessor notice and use
its best efforts to procure the immediate release
of the Aircraft, such Engine or such 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
discharged when due and payable or make adequate
provision by way of security or otherwise for all
debts, <PAGE>damages, claims and liabilities which
have given or might reasonably be expected to give
rise to a Security Interest (other than a
Permitted Lien) 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 other than as
expressly permitted by this Agreement.
8.8 GENERAL
Lessee will:
(a) not make any substantial change in the nature of
the business in which it is engaged if such
change, in the reasonable opinion of the Lessor or
Mortgagee, might reasonably be expected to have a
material adverse effect on the Lessee's
performance of its obligations under this
Agreement;
(b) preserve its corporate existence, and will not
merge or consolidate with any Person unless the
successor Person resulting from such merger or
consolidation (the "Successor")
(i) is a Person incorporated, formed or organized
under the laws of a State of the United
States of America;
(ii) shall have a net worth immediately after such
merger or consolidation of not less than the
Lessee's net worth immediately prior thereto;
(iii) shall be authorized under Applicable Law
to perform the Lessee's obligations
under this Agreement to the same extent
as the Lessee;
(iv) shall deliver to Lessor and Mortgagee an
agreement in form and substance reasonably
satisfactory to Lessor containing an
assumption by the Successor of Lessee's
representations and warranties under this
Agreement, together with the due and punctual
performance of all of Lessee's obligations
under this Agreement; and
(v) shall deliver to Lessor and Mortgagee an
opinion of counsel reasonably satisfactory in
form and substance to Lessor and Mortgagee
covering the Operative Documents and the
agreement referred to in sub-clause (iv)
above and substantially in the form of the
legal opinion set forth in Exhibit D.
<PAGE>
8.9 RECORDS
The Lessee shall procure that accurate, complete and
current records of all flights made by, and all
maintenance carried out on, the Aircraft (including, in
relation to each Engine or Part subsequently installed,
before its installation) are kept in English, and shall
keep the records in such manner as the Aviation
Authority may from time to time require. The records
will form part of the Aircraft Documents.
8.10 REGISTRATION AND FILINGS
Lessee shall:
(a) not do anything that might reasonably be expected
to adversely affect the registration of the
Aircraft with the Aviation Authority reflecting
(so far as permitted by Applicable Law) the
respective interests of the Lessor and Mortgagee;
and
(b) do all acts and things (including making any
filing or registration with the Aviation Authority
or any other Government Entity) and executing and
delivering all documents (including any amendment
of this Agreement) as may be required by the
Lessor 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
respective rights of the Lessor and Mortgagee
under this Agreement apply with the same effect as
before.
8.11 MAINTENANCE AND REPAIR
The Lessee shall:
(a) keep the Aircraft airworthy in all respects and in
good repair and condition, and all maintenance
will be carried out in accordance with the Agreed
Maintenance Program;
(b) advise the Lessor and Mortgagee in writing of all
material changes to the Agreed Maintenance
Program;
(c) maintain the Aircraft in accordance with the
Agreed Maintenance Program through Agreed
Maintenance Performers and perform (at the
respective intervals provided in the Agreed
Maintenance Program) all Major Checks, and before
performing any Major Check Lessee will consult
with Lessor as to the workscope for such Major
Check;
<PAGE>
(d) maintain the Aircraft in accordance with FAR Part
121 and all other rules and regulations of the
Aviation Authority as are applicable to aircraft
of the same type as the Aircraft operated by
United States of America air carriers;
(e) without limiting the provisions of Clause 7.4,
comply with all mandatory inspection and
modification requirements, airworthiness
directives and similar requirements applicable to
the Aircraft, any Engine or Part having a
compliance date on or before 90 days after the
Expiry Date and that are required by the Aviation
Authority;
(f) comply with all alert service bulletins issued by
any manufacturer of the Aircraft, Engines or
Parts, and comply (including scheduling compliance
work and then performing such work on schedule)
with all other service bulletins issued by any
such manufacturer if and to the extent that the
Lessee brings or schedules to bring in compliance
at least one-half of the applicable aircraft it
operates (excluding for purposes of such
calculation aircraft acquired from unrelated third
parties that already comply with such other
service bulletins);
(g) comply with all Applicable Laws and the
regulations of the Aviation Authority and any
other aviation authorities with jurisdiction over
the Lessee or the Aircraft, any Engine or Part
that relate to the maintenance, condition, use or
operation of the Aircraft or require any
modification or alteration to the Aircraft, any
Engine or Part;
(h) maintain in good standing a current U.S. Standard
Transport Category Certificate of Airworthiness
for the Aircraft issued by the Aviation Authority
in accordance with FAR Part 21 except when the
Aircraft is undergoing maintenance, modification
or repair required or permitted by this Agreement,
and shall from time to time provide to the Lessor
a copy on request;
(i) if required by the Aviation Authority, maintain a
current certification as to maintenance issued by
or on behalf of the Aviation Authority in respect
of the Aircraft and shall from time to time
provide to the Lessor a copy on request;
(j) maintain the Engines with respect to overhaul
build standards and disc replacements at a level
which is consistent with the level applied by the
Lessee in relation to other engines of the same
type as the Engines in its fleet;
(k) maintain the Engines and the APU in an "on
condition" program as set forth in the respective
manufacturer's maintenance planning document;
<PAGE>
(l) subject to Clause 11.2, 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 Clause 8.13(a); and
(m) maintain the Airframe at all times in compliance
with the requirements of the Manufacturer's Aging
Aircraft Program, SID Program and CPCP and related
mandates of the Aviation Authority, with all
documentation necessary to assure and demonstrate
compliance becoming part of the Aircraft
Documents.
8.12 REMOVAL OF ENGINES AND PARTS
The 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
(b) If the removal is of an obsolete item and is in
accordance with the Agreed Maintenance Program; or
(c) pursuant to, and in accordance with, Clause 8.15;
or
(d) (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
modifications 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
Clause 8.13(a) as soon as practicable and in any
event no later than the Expiry Date.
8.13 INSTALLATION OF ENGINES AND PARTS
(a) The Lessee will ensure that, except as permitted
by this Agreement, 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 (provided,
in <PAGE>the case of an improved or advanced
version, it can be installed and operated on
the Airframe without modification of the
Airframe or the engine, whether or not the
other installed Engine is also such an
improved or advanced version), which has
attached to it a current "serviceable tag"
issued by the manufacturer or supplier
indicating that the engine is new,
serviceable or overhauled, and the Lessee
shall retain all such tags;
(ii) in the case of a part, it is in as good
operating condition, is of the same
interchangeable modification status as the
replaced Part and has attached to it a
current "serviceable tag" issued by the
manufacturer or supplier indicating that the
part is new, serviceable or overhauled, and
the Lessee shall retain all such tags;
(iii) in the case of a part, it has become and
remains the property of the Lessor free
from Security Interests and on
installation on the Aircraft will,
without further act, be subject to this
Agreement and to the Security Interest
created by the Mortgage, in which case
title to the removed part shall
automatically become vested in Lessee
without further action or warranty on
the part of Lessor except that such Part
shall be free of Lessor Liens; and
(iv) in each case, the Lessee has full details as
to its source and maintenance records.
(b) If no Event of Default has occurred which is
continuing, the Lessee will be entitled to install
any engine or part on the Aircraft by way of
replacement notwithstanding Clause 8.13(a) if:
(i) there is not available to Lessee at the time
and in the place that engine or part is
required to be installed on the Aircraft a
replacement engine or part complying with the
requirements of Clause 8.13(a);
(ii) it would result in an unreasonable disruption
of the operation of the Aircraft or the
business of Lessee to ground the Aircraft
until an engine or part complying with Clause
8.13(a) becomes available for installation on
the Aircraft; and
(iii) as soon as practicable after
installation of the same on the Aircraft
but, in any event, no later than the
earlier of (1) 90 days after such
installation and (2) the Expiry Date,
the Lessee removes any such <PAGE>engine
or part and replaces it with the Engine
or Part replaced by it or by an engine
or part complying with Clause 8.13(a).
(c) If no Default has occurred which is continuing,
the Lessee will be entitled to install Lessee
Installed Parts on the Airframe by way of
replacement notwithstanding Clause 8.13(a)(iii) so
long as:
(i) the terms of any lease, conditional sale
agreement or security agreement, as the case
may be, covering such Lessee Installed Part
will not have the effect of prejudicing the
title and interest of the Lessor in and to
the Aircraft (including its Engines and
Parts) or the interest of Mortgagee in
respect thereof under the Mortgage;
(ii) the secured party, lessor or conditional
vendor, as the case may be, of such Lessee
Installed Part has confirmed and acknowledged
in writing (which confirmation and
acknowledgment may be contained in the lease,
conditional sale agreement or security
agreement covering such Lessee Installed
Part) to the Lessor and Mortgagee that it
will recognize the respective rights, title
and interest of the Lessor and Mortgagee in
and to the Aircraft (including its Engines
and Parts) and that it will not seek to
exercise any rights whatever in relation
thereto; and
(iii) before the Expiry Date the Lessee
removes any such Lessee Installed Part
and replaces it with the Part replaced
by it or by another part, in either case
complying with Clause 8.13(a).
(d) Lessor agrees, for the benefit of Lessee and any
mortgagee or holder of any other Security Interest
in any engine (other than an Engine) or Lessee
Installed Part owned by the Lessee, any lessor of
any engine (other than an Engine leased to the
Lessee) or Lessee Installed Part and any
conditional vendor of any engine (other than an
Engine purchased by the Lessee subject to a
conditional sale agreement or any other security
agreement) or Lessee Installed Part, that no
right, title to or interest in any such engine or
Lessee Installed Part shall be exercised or
asserted by the Lessor and the Lessor acknowledges
and confirms that it will not acquire any right,
title or interest to or in any such engine or
Lessee Installed Part as a result of its
installation on the Airframe.
<PAGE>
8.14 NON-INSTALLED ENGINES AND PARTS
(a) The Lessee shall ensure that any Engine or Part
which is not installed on the Airframe (or any
other airframe as permitted by this Agreement) is,
except as expressly permitted by this Agreement,
properly and safely stored and kept free from
Security Interests (other than Permitted Liens),
with insurance thereon complying with the
requirements of this Agreement.
(b) Notwithstanding Clause 8.14(a), the Lessee shall
be permitted, if no Default has occurred and is
continuing, to install any Engine on an airframe
and any Part on an airframe or engine:
(i) owned and operated by the Lessee free from
Security Interests, other than Permitted
Liens;
(ii) leased or hired to the Lessee pursuant to a
lease or conditional sale agreement on a
long-term basis and on terms whereby the
Lessee has full operational control of that
aircraft or engine; or
(iii) acquired or financed by the Lessee and
operated by the Lessee on terms that
ownership of that aircraft or engine, as
the case may be, pursuant to a lease,
conditional sale agreement or Security
Interest 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 title and
interest of the Lessor in and to that Engine
or Part or the interest of Mortgagee in
respect thereof under the Mortgage; and
(2) the lessor under such lease, the seller under
such conditional sale agreement or the
secured party of such Security Interest, as
the case may be, has confirmed and
acknowledged in writing (which such
confirmation and acknowledgment may be
contained in the lease, conditional sale
agreement or document creating the Security
Interest covering that Engine or Part) to the
Lessor and Mortgagee, in form and substance
satisfactory to the Lessor, that it will
recognize the respective rights, title and
interest of the Lessor and Mortgagee to and
in that Engine or Part and that it will not
seek to exercise any rights whatever in
relation thereto.
<PAGE>
8.15 POOLING OF ENGINES AND PARTS
The 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 the Lessor
and Mortgagee, such consent not to be unreasonably
withheld in any case where an Engine or Part is leased,
let on hire or otherwise made available by the Lessee
(on terms conferring no more than a contractual right
in personam against the Lessee and not a right in rem
against such Engine or Part) pursuant to a pooling
agreement to which the Lessee is a party and:
(a) the other parties to which are reputable, solvent
commercial air carriers or the manufacturers or
suppliers of the Engine or Part (or other
reputable, solvent organizations whose business
includes the administration of and participation
in such pooling agreements or arrangements); and
(b) which does not contemplate the transfer of title
to the pooled Engine or Part; and
(c) either provides that Lessor (or Mortgagee, as the
case may be) will be sole loss payee in respect of
any loss or damage to the Engine or Part, or
provides for Lessor to acquire title to a
substitute engine or part satisfying the
conditions set out in Clause 8.13(a) if the Engine
or Part is destroyed.
8.16 EQUIPMENT CHANGES
(a) The Lessee will not make any modification or
addition to the Aircraft (each an "Equipment
Change"), except for an Equipment Change that:
(i) is expressly permitted by any other provision
of this Agreement, or
(ii) has the prior written approval of the Lessor
and Mortgagee (which approval shall not be
unreasonably withheld provided the proposed
Equipment Change will not, in the reasonable
opinion of the Lessor and Mortgagee, diminish
the value, utility, condition or
airworthiness of the Aircraft), except for
painting or minor cabin interior
modifications not affecting the structure of
the Airframe, any or all of which may be made
without such prior approval.
(b) So long as no Event of Default has occurred and is
continuing, the 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.
<PAGE>
8.17 TITLE TO ENGINES AND PARTS
(a) Title to any engine installed on the Aircraft,
whether by way of replacement as the result of an
Equipment Change or otherwise (except as provided
for replacement engines pursuant to Clause 11.2
below) will not vest in Lessor.
(b) Title to all Parts installed on the Aircraft,
whether by way of replacement as the result of an
Equipment Change or otherwise (except those
installed pursuant to Clause 8.13(b) or Clause
8.15) will on installation, without further act,
vest in the Lessor subject to this Agreement free
and clear of all Security Interests other than the
Mortgage. The Lessee will at its own expense take
all such steps and execute, and procure the
execution of, all such instruments that are
necessary to ensure that title so passes to the
Lessor and is subject to the Security Interest
created by the Mortgage according to all
Applicable Laws. At any time when requested by
the Lessor, the Lessee will provide evidence to
the Lessor's reasonable satisfaction (including
the provision, if required, to the Lessor of one
of more legal opinions) that title has so passed
to the Lessor and is subject to the Security
Interest created by the Mortgage.
(c) The Lessor may require the Lessee to remove any
Equipment Change other than an Equipment Change
permitted under Clause 8.16(a), and to restore the
Aircraft to its condition prior to that Equipment
Change.
(d) Any Engine at any time removed from the Aircraft
will remain the property of the Lessor until, in
the event of an Engine Loss, a replacement has
been made in accordance with Clause 11.2 and title
to that replacement has passed, according to
Applicable Laws and pursuant to Clause 11.2, to
the Lessor subject to this Agreement free of all
Security Interests, whereupon title to the removed
Engine will, provided no Default has occurred and
is continuing, pass to the Lessee free of Lessor
Liens. Except as referred to in Clause 8.16(b),
any Part at any time removed from the Aircraft
will remain the property of the Lessor until a
replacement has been made in accordance with this
Agreement and until title to that replacement has
passed, according to Clause 8.17(b) and Applicable
Laws, to the Lessor subject to this Agreement free
of all Security Interests, whereupon title to the
removed Part will, provided no Default has
occurred and is continuing, pass to the Lessee
free of Lessor Liens.
<PAGE>
8.18 THIRD PARTIES
The Lessee shall procure that no Person having
possession of the Aircraft during the Term will act in
any manner inconsistent with the Lessee's obligations
under this Agreement and that all such Persons shall
comply with those obligations as if references to
"Lessee" included a separate reference to those
Persons.
8.19 NON-DISCRIMINATION
(a) Lessee shall not discriminate against the Aircraft
in its use, maintenance or operation of the
Aircraft compared to other similar Aircraft owned
or operated by Lessee, and Lessee shall service,
repair, maintain and overhaul the Aircraft so as
to keep the Aircraft maintained in the same manner
and with the same care as used by Lessee with
similar aircraft owned or operated by Lessee.
(b) Subject to a sublease permitted pursuant to Clause
8.5, Lessee shall continue to use the Aircraft in
its regular commercial passenger operations until
delivery to the Return Location immediately prior
to the Final Inspection.
(c) Lessee further agrees that normal progressive
maintenance will continue to be performed on the
Aircraft throughout the Term, and no unusual
maintenance procedures or cessation of maintenance
shall occur during the one year period prior to
the Expiry Date.
9. INSURANCE
9.1 INSURANCES
The Lessee will maintain in full force and effect
during the Term insurances in respect of the Aircraft
in accordance with this Clause 9 and Schedule 5 (the
"Insurances") through such brokers and with such
insurers and having such deductibles and being subject
to such exclusions as are usual and customary in the
worldwide aviation insurance marketplace for major
international air carriers operating similar equipment
who are similarly situated with Lessee. The Insurances
will be effected either:
(a) on a direct basis with insurers of recognized
standing who normally participate in aviation
insurances in the leading international insurance
markets and led by reputable underwriters approved
by Lessor and the Mortgagee, or
(b) with a single insurer or group of insurers
approved by Lessor and the Mortgagee who does not
retain the risk, but effects substantial
reinsurance in the leading international insurance
markets and through brokers of recognized
<PAGE>standing and acceptable to Lessor and the
Mortgagee for a percentage acceptable to the
Lessor and the Mortgagee of all risks insured,
and Lessor acknowledges and confirms that the current
deductibles and exclusions, together with the existing
brokers and insurers, in respect of the insurances
maintained by Lessee on the date of this Agreement are
acceptable to it and Mortgagee.
9.2 REQUIREMENTS
The Lessor's current requirements as to Insurances are
as specified in this Clause 9 and in Part 1 of Schedule
5. Except for the amount of the Agreed Value, the
Minimum Liability Coverage and the deductible under
Lessee's hull and war risk insurance policies, the
Lessor may from time to time stipulate such other
requirements for the Insurances as the Lessor
reasonably considers necessary to ensure that the scope
and level of cover is maintained in accordance with the
then prevailing industry practice in relation to
aircraft of the same type as the Aircraft and in
relation to operators of similar standing to the
Lessee. In the event that it proposes any such
stipulation, Lessor shall notify the Lessee accordingly
and the Lessor and/or its brokers will then consult in
good faith with the Lessee and the Lessee's approved
independent insurance brokers with regard to such
proposed stipulation. If, following the consultation,
the Lessee's independent insurance brokers confirm that
the proposed stipulation is in accordance with
prevailing industry practice for airlines similarly
situated to Lessee, then Lessee shall comply with the
proposed requirements at the time of its next renewal
of Insurances.
9.3 INSURANCE COVENANTS
The Lessee shall:
(a) ensure that all legal requirements as to insurance
of the Aircraft, any Engine or any Part that may
from time to time be imposed by the laws of the
State of Registration or any jurisdiction to, from
or over which the Aircraft may be flown, 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 does not become subject to
detention or forfeiture;
(ii) the Insurances remain valid and in full force
and effect; and
(iii) the interests of the Indemnitees in the
Insurances and the Aircraft or any Part
are not thereby prejudiced;
<PAGE>
(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 Insurances or outside
any geographical limit imposed by the Insurances;
(c) comply with the terms and conditions of each
policy of the Insurances and not do, consent or
agree to any act or omission that:
(i) invalidates or may reasonably be expected to
invalidate the Insurances;
(ii) renders or may reasonably be expected to
render void or voidable the whole or any part
of any of the Insurances; or
(iii) brings any particular liability within
the scope of an exclusion or exception
to the Insurances;
(d) not take out without the prior written approval of
the Lessor any insurance in respect of the
Aircraft other than those of the type required
under this Agreement unless relating solely to
hull total loss, business interruption, engine
break-down, profit commission and deductible risk
or which would otherwise have no adverse impact on
the Insurances required to be carried by Lessee
under this Agreement;
(e) commence renewal procedures at least 30 days prior
to the expiration of any of the Insurances and
provide to the Lessor and Mortgagee:
(i) if requested by the Lessor, a written status
report of renewal negotiations 14 days prior
to each expiration date;
(ii) telefaxed confirmation of completion of
renewal prior to each expiration date; and
(iii) a certificate of insurance and broker's
letter of undertaking substantially in
the form set out in Parts 2 and 3 of
Schedule 5, detailing the coverage and
confirming the insurers' agreement to
the specified insurance requirements of
this Agreement within seven days after
each renewal date;
(f) provide to the Lessor and Mortgagee copies of
those documents evidencing the Insurances which
the Lessor and Mortgagee may reasonably request;
<PAGE>
(g) on request, provide to the Lessor and Mortgagee
evidence that the Insurance premiums have been
paid;
(h) not make any modification or alteration to the
Insurances material and adverse to the interests
of any of the Indemnitees;
(i) be responsible for any deductible under the
Insurances; and
(j) provide any other insurance related information,
or assistance, in respect of the Insurances as the
Lessor may reasonably request.
9.4 FAILURE TO INSURE
If the Lessee fails to maintain the Insurances in
compliance with this Agreement, each of the Indemnitees
will be entitled but not obligated (without prejudice
to any other rights of the Lessor under this
Agreement):
(a) to pay the premiums due or to effect and maintain
insurances satisfactory to it or otherwise remedy
the Lessee's failure in such manner (including to
effect and maintain an "owner's interest" policy)
as it considers appropriate, and any sums so
expended by it will become immediately due and
payable by the Lessee to the Lessor on demand
(such demand being made as soon as reasonably
practicable following the incurring of such
expenditure), together with interest thereon at
the Default Rate from the date of expenditure by
it up to the date of reimbursement by the Lessee
(before and after any judgment); and
(b) at any time while such failure is continuing to
require the Aircraft to remain at any airport or
to proceed to and remain at any airport designated
by it until the failure is remedied to its
reasonable satisfaction.
9.5 CONTINUING INDEMNITY
(a) Lessor may require Lessee to effect and to
maintain insurance after the Expiry Date with
respect to its liability under the indemnities in
Clause 10 for such period as the Lessor may
reasonably require (but in any event not more than
three years) providing for each Indemnitee to be
named as additional insured.
(b) Lessee's obligation under this Clause 9.5 shall
not be affected by the Lessee ceasing to be lessee
of the Aircraft or any of the Indemnitees ceasing
to have any interest in respect of the Aircraft,
and upon a Transfer pursuant to Clause 14.2 Lessee
shall continue to name the Indemnitees as
additional insureds <PAGE>under the Insurance
policies covered by Clause 1(d) of Schedule 5 for
three years after the Transfer date.
9.6 APPLICATION OF INSURANCE PROCEEDS
As between Lessor and Lessee:
(a) All insurance payments, up to the Agreed Value,
received as the result of a Total Loss occurring
during the Term will be paid to Mortgagee.
(b) All insurance proceeds in respect of any damage or
loss to the Aircraft, any Engine or any Part
occurring during the Term not constituting a Total
Loss and involving insurance proceeds in excess of
the Damage Notification Threshold will be paid to
Mortgagee and applied in payment (or to reimburse
Lessee) for repairs or replacement property upon
Lessor and Mortgagee being reasonably satisfied
that the repairs or replacement have been effected
in accordance with this Agreement. Insurance
proceeds in amounts less than the Damage
Notification Threshold may be paid by the insurer
directly to the Lessee. Any balance remaining may
be retained by the Lessee.
(c) All insurance proceeds in respect of third party
liability will be paid to the relevant third
party.
(d) Notwithstanding Clauses 9.6(a) and (b), 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 Mortgagee
to be applied toward payment of any amounts that
may be or become payable by the Lessee in such
order as the Lessor and Mortgagee see fit or as
the Lessor and Mortgagee may elect. In the event
that the Lessee remedies any such Default to the
reasonable satisfaction of Lessor, then Lessor
shall procure that all such insurance proceeds
then held by Mortgagee in excess of the amounts
(if any) applied by Lessor in accordance with this
sub-clause (d) shall be paid promptly to Lessee.
10. INDEMNITY
10.1 GENERAL
The Lessee shall defend, indemnify and hold harmless
the Indemnitees from and against any and all claims,
proceedings, losses, liabilities, suits, judgments,
costs, expenses, penalties or fines (each a "Claim")
regardless of when the same is made or incurred,
whether during or after the Term (but not before):
<PAGE>
(a) that may at any time be suffered or incurred
directly or indirectly as a result of or connected
with possession, delivery, performance,
management, registration, control, maintenance,
condition, service, repair, overhaul, leasing,
subleasing, 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, 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;
(b) that arise out of any act or omission that
invalidates or that renders voidable any of the
Insurances;
(c) that 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
confidentiality owed to any Person,
but excluding any Claim to the extent that:
(1) it arises directly as a result of the wilful
misconduct or gross negligence of an
Indemnitee;
(2) it arises directly as a result of a breach by
an Indemnitee of its express obligations
under any Operative Document or as a result
of a representation or warranty given by an
Indemnitee in any Operative Document not
being true and correct at the date when, or
when deemed to have been, given or made;
(3) it constitutes or is attributable to a
Non-Indemnified Tax or Lessor Lien;
(4) it represents or is attributable to a Tax or
loss of tax benefits (the Lessee's
liabilities for which, to the extent thereof,
are set out in Clauses 5.7, 5.8 and 5.10);
(5) it constitutes or is attributable to a cost
or expense that is required to be borne by
the Lessor in accordance with another
provision of this Agreement;
<PAGE>
(6) it results from any disposition of all or any
part of an Indemnitee's rights, title or
interest in or to the Aircraft or under any
Operative Document, unless such disposition
occurs as a consequence of an Event of
Default;
(7) it is attributable to an event occurring
after the Term unless the Claim results from
or arises out of an act or omission by the
Lessee, or any circumstance existing, during
the Term; or
(8) it is brought after the Term and relates to a
claimed patent infringement by the
Manufacturer occurring during the Term.
10.2 MITIGATION
(a) The Lessor agrees that it shall, as soon as
reasonably practicable after it becomes aware of
any circumstances that would, or would reasonably
be expected to, become the subject of a claim for
indemnification pursuant to Clause 10.1, notify
the Lessee in writing accordingly. Lessor (and
any other Indemnitee seeking indemnification, as
the case may be) and Lessee shall then consult
with one another in good faith in order to
determine what action (if any) may reasonably be
taken to avoid or mitigate such Claim. The Lessee
shall have the right to take all reasonable action
(on behalf and, if necessary, in the name of the
Lessor or such other Indemnitee) in order to
resist, defend or settle (provided such settlement
is accompanied by payment) any claims by third
parties giving rise to such Claim, provided always
that the Lessee shall not be entitled to take any
such action unless adequate provision, reasonably
satisfactory to the Lessor and such other
Indemnitee, shall have been made in respect of the
third party claim and the costs thereof. The
Lessee or, if the Claim is covered by Lessee's
Insurances, the Lessee's insurers shall be
entitled to select any counsel to represent it or
them, the Lessor and such other Indemnitee in
connection with any such action, subject in the
case of Lessee to the approval of the Lessor and
such other Indemnitee (such approval not to be
unreasonably withheld) and any action taken by the
Lessee shall be on a full indemnity basis in
respect of the Lessor and such other Indemnitee.
(b) Any sums paid by the Lessee to the Lessor or any
Indemnitee in respect of any Claim pursuant to
Clause 10.1 shall be paid subject to the condition
that, in the event that the Lessor or such
Indemnitee is subsequently reimbursed in respect
of that Claim by any other Person, the Lessor or
such Indemnitee shall, provided no Default shall
have occurred and be continuing, promptly pay to
the Lessee an amount equal to the sum paid to it
by the Lessee, including any interest on such
amount to the extent attributable thereto and
received by the Lessor or such Indemnitee, less
any Tax payable by the Lessor <PAGE>or such
Indemnitee in respect of such reimbursement (net
of any tax benefit derived from the Claim or the
reimbursement of Lessee by Lessor).
10.3 DURATION
The indemnities contained in this Agreement will
survive and continue in full force after the Expiry
Date.
11. EVENTS OF LOSS
11.1 TOTAL LOSS
(a) PRE-DELIVERY AIRFRAME LOSS: If a Total Loss
occurs prior to Delivery, 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 the Lessor will rebate to
the Lessee the Security Deposit (if theretofore
paid pursuant to Clause 5.1) or, as the case may
be, return the Letter of Credit to the Lessee.
(b) POST-DELIVERY AIRFRAME LOSS: If a Total Loss
occurs after Delivery, the Lessee will pay the
Agreed Value to Mortgagee on the earlier of
(i) the date of receipt of the insurance proceeds
payable as a result of the Total Loss, or (ii) the
60th day after the Total Loss Date (the
"Settlement Date"), unless the Aircraft is
restored to the Lessor or the Lessee within that
period (or, in the case of a Total Loss coming
within paragraph (c) of the definition of Total
Loss and involving the loss of the Lessor's title
to the Aircraft, if both the Aircraft and the
Lessor's title thereto are restored to Lessor or,
in the case of the Aircraft, to Lessee and
Mortgagee's rights under the Mortgage are fully
restored). The receipt by Mortgagee of the
insurance proceeds in respect of the Total Loss on
or prior to the Settlement Date shall discharge
the Lessee from its obligation to pay the Agreed
Value to the Lessor pursuant to this
Clause 11.1(b), provided such proceeds are not
less than the Agreed Value. In the event that the
insurance proceeds are paid initially to the
Lessee and not to Mortgagee, they may be retained
by the Lessee if the Lessee shall have paid the
Agreed Value to Mortgagee, otherwise the Lessee
shall pay the Agreed Value to Mortgagee not later
than the next Business Day following receipt by
the Lessee of such proceeds. In the event that
the Lessee pays the Agreed Value to the Lessor or
Mortgagee in accordance with this Clause 11.1(b),
the Lessor shall promptly assign to the Lessee its
rights under the Insurances to receive the
insurance proceeds in respect of the Total Loss to
the extent that such proceeds shall not have been
paid to the Lessee. Subject to the rights of any
insurers or other third parties, upon irrevocable
<PAGE>payment in full to the Lessor or Mortgagee
of that amount and all other amounts that may be
or become payable to the Lessor under this
Agreement, the Lessor shall:
(i) without recourse or warranty (except as to
the absence of Lessor Liens), and without
further act, be deemed to have transferred to
the Lessee all of the Lessor's rights to any
Engines or Parts not installed when the Total
Loss occurred, all on an "as-is where is"
basis, and shall, at the Lessee's expense,
execute and deliver such bills of sale and
other documents and instruments as the Lessee
may reasonably request to evidence (on the
public record or otherwise) the transfer and
the vesting of the Lessor's rights in such
Engines and Parts in the Lessee, free and
clear of all rights of the Lessor and any
Lessor Liens; and
(ii) pay to Lessee, as a rebate of prepaid Basic
Rent, and amount equal to the product of (1)
one month's Basic Rent multiplied by (2) a
fraction the numerator of which is the number
of days remaining in the then current Rental
Period and the denominator of which is the
number of days in the then current Rental
Period.
11.2 ENGINE LOSS
<PAGE>
Upon the occurrence of an Engine Loss (including, for
the avoidance of doubt, at a time when the Engine is
not installed on the Airframe) in circumstances in
which there has not also occurred a Total Loss, the
Lessee shall give the Lessor and Mortgagee written
notice promptly upon becoming aware of the same and
shall (unless the Lessor has received the insurance
proceeds relating to such Engine Loss), within 60 days
after the Engine Loss Date, convey or cause to be
conveyed to the Lessor, as replacement for such Engine,
title to a replacement engine that is in the same or
better operating condition, has the same or greater
value and utility as the lost Engine and that complies
with the conditions set out in Clause 8.13(a). The
Lessee will at its own expense take all such steps and
execute, and procure the execution of, a full warranty
bill of sale covering such replacement engine, a
supplement to this Agreement adding such replacement
engine to the Leased Property and all such other
agreements and instruments that are necessary to ensure
that title to such Engine passes to the Lessor and is
subject to the Security Interest created by the
Mortgage and such replacement engine becomes an
"Engine", all according to Applicable Laws. At any
time when requested by the Lessor, the Lessee will
provide evidence to the Lessor's reasonable
satisfaction (including the provision, if required, to
the Lessor of one of more legal opinions) that title
has so passed to the Lessor and is subject to the
Security Interest created by the Mortgage. Upon
compliance with the foregoing title transfer
provisions, the leasing of the replaced Engine the
subject of the Engine Loss shall cease and title to
such replaced Engine shall (subject to any salvage
rights of insurers) vest in the Lessee free of Lessor
Liens. If the Lessor or Mortgagee subsequently
receives any insurance proceeds relating to such Engine
Loss, the Lessor shall promptly remit such proceeds or
cause such proceeds to be remitted to the Lessee. No
Engine Loss with respet to any Engine that is replaced
in accordance with the provisions of this Clause 11.2
shall result in any increase or decrease in Basic Rent,
Additional Rent or the Agreed Value.
11.3 REQUISITION
During any requisition for use or hire of the Aircraft,
any Engine or Part that does not constitute a Total
Loss:
(a) the Basic Rent, Additional Rent and Supplemental
Rent payable under this Agreement will not be
suspended or abated either in whole or in part,
and the Lessee will not be released from any of
its other obligations under this Agreement (other
than operational obligations with which the Lessee
is unable to comply solely by virtue of the
requisition); and
(b) so long as no Default has occurred and is
continuing, the Lessee will be entitled to any
compensation payable by the requisitioning
authority in respect of the Term. The Lessee
will, as soon as practicable after the end of any
such <PAGE>requisition (with the Term being
extended if and to the extent that the period of
requisition continues beyond the Scheduled Expiry
Date), cause the Aircraft to be put into the
condition required by this Agreement. The 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 the Lessor will apply such compensation in
reimbursing the Lessee for the cost of complying
with its obligations under this Agreement in
respect of any such change; provided, that, if any
Default has occurred and is continuing, the Lessor
may apply the compensation in or towards
settlement of any amounts owing by the Lessee
under this Agreement. All such sums shall be held
by Mortgagee.
12. RETURN OF AIRCRAFT
12.1 REDELIVERY
On the Expiry Date or termination of the leasing of the
Aircraft under this Agreement, the Lessee shall, unless
a Total Loss has occurred, at its expense, redeliver
the Aircraft and Aircraft Documents to the Lessor at
the Redelivery Location in a condition complying with
this Clause 12 and Schedule 4, free and clear of all
Security Interests and Permitted Liens (other than
Lessor Liens).
12.2 FINAL CHECKS
Immediately prior to return of the Aircraft, Lessee
shall perform the following:
(a) Lessee shall perform (or have performed by an
Agreed Maintenance Performer) a C-Check. At
return, the Airframe will have zero Flight Hours
since such C-Check, except for the acceptance
flights and the ferry flight to the Redelivery
Location. Lessee will also weigh the Aircraft.
Any discrepancies revealed during such inspection
will be corrected in accordance with
Manufacturer's maintenance and repair manuals or
FAA-approved data. Lessee shall also perform
during such check, to the extent it is able, any
other work reasonably required by Lessor (and not
otherwise required under this Agreement) so long
as such work does not prevent Lessee from
returning the Aircraft on the Expiry Date or
extend the time the Aircraft is in maintenance,
and Lessor shall reimburse Lessee for the Actual
Cost of such work at Lessee's preferred customer
rates (if the work is performed by Lessee) or at
the third party rates charged Lessee.
(b) Lessee shall perform (or have performed by an
Agreed Maintenance Performer) an internal and
external corrosion inspection in accordance with
<PAGE>the CPCP so that CPCP inspection items will
be free of requirements for a minimum of two years
after the Expiry Date, and any discrepancies will
be addressed in accordance with the
recommendations of the Manufacturer and the SRM.
In addition, all inspected areas will be properly
treated with corrosion inhibitor as recommended by
Manufacturer.
(c) If Lessee performed any structural inspections or
tasks on a sampling basis on aircraft similar to
the Aircraft but did not perform such inspections
on the Aircraft, such work shall also be performed
on the Aircraft.
(d) Lessor shall perform, at Lessor's expense, a
videotape borescope inspection of all accessible
gas path sections of each Engine (accessible
whether by borescope port or other means),
including the low pressure and high pressure
compressors and the turbine area of such Engine.
All items beyond the Engine Manufacturer's
maintenance manual limits will be rectified at
Lessee's sole cost and expense. No Engine will be
"on watch" for any reason requiring special or out
of sequence inspection.
(e) In accordance with the Engine Manufacturer's MPD,
Lessee shall perform a maximum power assurance run
and condition, acceleration and bleed valve
scheduling checks on each Engine. Lessee will
record and evaluate each Engine's performance,
with Lessor and/or its representatives entitled to
be present. Each Engine shall pass such tests
without operational limitations throughout the
operating envelope in accordance with the Engine
Manufacturer's maintenance manual.
(f) Lessee shall perform a videotape borescope
inspection of the APU, and all items beyond the
manufacturer's recommended limits will be
rectified at Lessee's sole cost and expense.
(g) Lessee shall have removed and blended all external
and interior markings.
(h) If any historical and technical records, condition
trend monitoring data, power assurance runs or
borescope inspection indicate an abnormal
acceleration in the rate of performance
deterioration or oil consumption in any Engine or
the APU, Lessee shall correct such conditions
causing the accelerated rate of deterioration.
12.3 FINAL INSPECTION
(a) During the C-check prior to redelivery of the
Aircraft, the Lessee will make the Aircraft and
Aircraft Documents available to representatives of
Lessor and <PAGE>the Financing Parties 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 the representatives of Lessor and
the Financing Parties to inspect, at their own
cost, the Aircraft Documents, the Aircraft and any
uninstalled Parts and Engines. The
representatives of Lessor and the Financing
Parties shall attend and conduct the Final
Inspection diligently and, without limiting their
right to conduct the full Final Inspection
permitted by this Agreement, will cooperate with
Lessee in order to complete the Final Inspection
as soon as reasonably practical.
(b) Lessor and the Financing Parties shall also be
entitled, as part of the Final Inspection, to
require Lessee to perform an acceptance flight of
up to two hours at Lessee's cost (with up to four
representatives of Lessor and the Financing
Parties on-board as observers) and such further
acceptance flights as may be necessary in the
event that the first or subsequent flights do not
confirm that the Aircraft complies with the
redelivery requirements of this Agreement.
(c) At the request of Lessor, Lessee shall perform
"bridging" maintenance procedures for the purpose
of standardizing the Aircraft to the maintenance
program of any subsequent operator of the
Aircraft; provided, that Lessor shall pay to
Lessee the Actual Cost of all "bridging"
procedures that are in excess of or not in lieu of
the "C" Check to be performed pursuant to
Clause 12.2 and Schedule 4.
12.4 NON-COMPLIANCE
To the extent that, at the time of Final Inspection,
the condition of the Aircraft does not comply with this
Agreement, the Lessee shall immediately rectify the
non-compliance and, to the extent that the
non-compliance extends beyond the Expiry Date, the Term
will be automatically extended until the non-compliance
has been rectified. If, on any date more than 14 days
after the Expiry Date, the condition of the Aircraft
still does not comply with this Agreement, the Lessee
shall, at the option of the Lessor and Mortgagee
exercised by notice to Lessee, redeliver the Aircraft
to the Lessor and indemnify the Lessor, and provide
security reasonably acceptable to the Lessor and
Mortgagee for that indemnity, against the cost of
putting the Aircraft into the condition required by
this Agreement. During any extension of the Term
pursuant to this Clause 12.4, this Agreement will
remain in full force and effect, including the
obligation to pay Basic Rent (which Lessee shall pay on
a per diem basis weekly in advance); provided, however,
that Lessee shall not operate, or permit others to
operate, the Aircraft after the Expiry Date except for
acceptance flights pursuant to Clause 12.2 and a ferry
flight to the Redelivery Location.
<PAGE>
12.5 EXPORT DOCUMENTATION
Upon redelivery and upon request by the Lessor, the
Lessee shall (a) provide to the Lessor all documents
necessary to export the Aircraft from the State of
Registration (including a valid and subsisting export
license for the Aircraft), and (b) provide any
documents reasonably requested by the Lessor in
connection with, and otherwise cooperate with, the
deregistration of the Aircraft by the Aviation
Authority, including causing the Aviation Authority to
issue an Export Certificate of Airworthiness to a
country specified by the Lessor.
12.6 ACKNOWLEDGMENT
Provided the Lessee has complied with its obligations
under this Agreement, upon redelivery of the Aircraft
by the Lessee to the Lessor at the Redelivery Location,
the Lessor will deliver simultaneously to the Lessee
the Certificate of Redelivery.
12.7 MAINTENANCE PROGRAM
(a) During the 20 day period preceding the Scheduled
Expiry Date and upon the Lessor's request, the
Lessee will provide the 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. The Lessor agrees
that it will not disclose (and will not permit its
agents to disclose) the contents of the Agreed
Maintenance Program to any Person except to the
extent necessary to monitor the 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 Expiry Date.
(b) Concurrent with providing the Aircraft Documents
for Lessor's review, Lessee shall provide to
Lessor a written summary of all sampling programs
involving or affecting the Aircraft.
12.8 STORAGE
If the Lessor so requests, and subject to the
availability of the requisite space, the Lessee shall
park and store the Aircraft at a secure storage area,
which may be at the Redelivery Location or at any other
suitable facility of the Lessee selected by the Lessee,
wherever located (the "Storage Location"), on behalf of
the Lessor for a period not exceeding 30 days from the
Expiry Date. During that period the Aircraft shall be
at the Lessor's risk (save as to any loss or damage
caused by the Lessee's wilful misconduct or gross
negligence), and the Lessee shall maintain and store
the <PAGE>Aircraft in accordance with the respective
manufacturer's maintenance planning document and shall
insure the Aircraft in accordance with a "ground risk
only" policy usual and customary in the worldwide
aviation insurance marketplace. All storage,
maintenance and insurance costs (which shall be at
Lessee's preferred customer rates or at the actual
third-party rates charged to Lessee) shall be borne by
the Lessor.
13. DEFAULT
13.1 EVENTS
Each of the following events will constitute an Event
of Default and a repudiation of this Agreement by the
Lessee:
(a) NON-PAYMENT: Lessee (i) fails to pay the Agreed
Value and all other amounts required under Clause
11.1(b) on the Settlement Date, (ii) fails to make
any payment of Basic Rent or Additional Rent
within five Business Days after the date on which
such payment is due, or (iii) fails to pay any
other amount payable by it under this Agreement
within five Business Days after written notice
from Lessor or Mortgagee that such amounts are
due; or
(b) MATERIAL COVENANTS: Lessee (i) fails to maintain
in full force and effect any insurance required to
be maintained under Clause 9, or (ii) transfers
possession of the Airframe or any Engine to
another Person other than as permitted by this
Agreement; or
(c) BREACH: Lessee fails to comply with any other
provision of this Agreement and, if such failure
is, in the reasonable opinion of the Lessor,
capable of remedy, the failure continues for 30
days after notice from the Lessor to the Lessee,
provided, that if such failure cannot reasonably
be remedied within such 30 day period and the
Lessee is diligently undertaking all necessary
remedial action, the 30 day period shall be
extended for a further 30 days; or
(d) REPRESENTATION: any representation or warranty
made (or deemed to be repeated) by the Lessee in
this Agreement or in any document or certificate
furnished to the Lessor pursuant to or in
connection with this Agreement is or proves to
have been incorrect in any material respect when
made or deemed to be repeated and the Lessee's
ability to comply with its obligations under this
Agreement, and/or the Lessor's or Mortgagee's
rights, title and interest to and in the Aircraft
and/or under this Agreement, are thereby
materially and adversely affected; or
<PAGE>
(e) CROSS DEFAULT:
(i) any Financial Indebtedness of the Lessee or
any of its Affiliates that exceeds $2,000,000
is not paid when due and any applicable grace
period shall have expired;
(ii) the security for any Financial Indebtedness
is enforced; or
(iii) any lease, conditional sale, installment
sale or forward purchase agreement of
the Lessee or any of its Affiliates in
respect of an aircraft is terminated as
a consequence of an event of default or
termination event (however described);
provided always, in any such case, it shall not
constitute an Event of Default under this
Agreement:
(1) if the relevant Financial Indebtedness
constitutes non-recourse borrowing or
financing; or
(2) if the non-payment, acceleration, termination
or event in question is being contested by
the Lessee in good faith and on reasonable
grounds and any declaration of default,
termination of agreement or enforcement of
security has been stayed by a court of
competent jurisdiction; 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:
(i) any authorization required by the Lessee of,
or in connection with, the execution,
delivery, validity, enforceability or
admissibility in evidence of this Agreement
or the performance by the Lessee of its
obligations under this Agreement; or
(ii) any airline license, air transport license,
franchise, concession, permit, certificate,
right or privilege required by the Lessee for
the conduct of its business,
is modified, withheld, revoked, suspended,
canceled, withdrawn, terminated or not renewed, or
otherwise ceases to be in full force and is not
reissued, reinstated or renewed within 30 days,
provided however that any such modification,
withholding, revocation, suspension, cancellation,
withdrawal, termination or non-renewal shall only
constitute an Event of Default if it has <PAGE>a
material adverse effect on the Lessee's ability to
perform its obligations under the Operative
Documents or on the Lessor's rights, title and
interest to and in the Aircraft or under this
Agreement; or
(g) INSOLVENCY:
(i) the Lessee or any of its Affiliates is, or is
deemed for the purposes of any relevant law
to be, unable to pay its debts as they fall
due or to be insolvent, or admits inability
to pay its debts as they fall due; or
(ii) the Lessee or any of its Affiliates suspends
making payments on all or any class of its
debts or announces an intention to do so, or
a moratorium is declared in respect of any of
its indebtedness; or
(h) BANKRUPTCY AND SIMILAR PROCEEDINGS
(i) Lessee shall consent to the appointment of a
receiver, trustee or liquidator for itself or
for a substantial part of its property; or
(ii) Lessee shall admit in writing its inability
to pay its debts generally as they become
due, or Lessee shall make a general
assignment for the benefit of creditors; or
(iii) Lessee shall file a voluntary petition
in bankruptcy or a voluntary petition or
answer seeking reorganization in a
proceeding under 11 U.S.C. Sections 101
et seq. or under any other laws dealing
with bankruptcy, insolvency, moratorium
or creditors' rights generally (any or
all of which are hereinafter referred to
as "Bankruptcy Laws"), or an answer
admitting the material allegations of a
petition filed against Lessee in any
such proceeding, or Lessee shall by
voluntary petition or answer consent to
or fail to oppose the seeking of relief
under the provisions of any Bankruptcy
Laws; or
(iv) any order, judgment or decree is entered by a
court of competent jurisdiction appointing a
receiver, trustee or liquidator of Lessee or
a substantial part of its property, or
ordering a substantial part of Lessee's
property to be sequestered, is instituted or
done with the consent of Lessee or, if
instituted by another Person, the order,
judgment or decree is not dismissed,
remedied or relinquished within 60 days; or
<PAGE>
(v) a petition against Lessee in a proceeding
under any Bankruptcy Laws shall be filed and
shall not be withdrawn or dismissed within 60
days thereafter, or if, under the provisions
of any Bankruptcy Laws that may apply to
Lessee, any court of competent jurisdiction
shall assume jurisdiction, custody or control
of Lessee or of any substantial part of its
property; or
(vi) any step (including petition, proposal or
convening a meeting) is taken with a view to
a composition, assignment or arrangement with
any creditors of, or the reorganization,
rehabilitation, administration, liquidation,
or dissolution of, the Lessee or any of its
Affiliates or any other insolvency
proceedings involving the Lessee or any of
its Affiliates; or
(i) OTHER JURISDICTION: there occurs in relation to
the Lessee any event anywhere which, in the
reasonable opinion of the Lessor, corresponds with
any of those mentioned in Clause 13.1(h); or
(j) UNLAWFUL: it becomes unlawful for the Lessee to
perform any of its material obligations under this
Agreement or this Agreement becomes wholly or
partly invalid or unenforceable, provided that any
such partial invalidity or unenforceability shall
only constitute an Event of Default if it has a
material adverse effect on the Lessee's ability to
perform its obligations under this Agreement or
the Lessor's rights, title and interest in and to
the Aircraft or under this Agreement; or
(k) SUSPENSION OF BUSINESS: the Lessee suspends or
ceases to carry on all or a substantial part of
its business; or
(l) DISPOSAL: the Lessee disposes or threatens to
dispose of all or a material part of its assets,
whether by one or a series of transactions,
related or not, other than pursuant to a merger or
consolidation as referred to in, and subject to,
Clause 8.8(b) or for the purpose of any other
reorganization or amalgamation the terms of which
have received the previous consent in writing of
the Lessor; or
(m) RIGHTS: the existence, validity, enforceability
or priority of the rights of the Lessor as owner
and lessor in respect of the Aircraft or the
rights of Mortgagee as mortgagee of the Aircraft
and assignee of this Agreement are challenged by
the Lessee or any other Person claiming by or
through the Lessee and, in the case of a Person
other than Lessee, such claim presents a
<PAGE>material risk of loss or forfeiture of the
rights of Lessor or Mortgagee with respect to the
Aircraft; or
(n) DELIVERY: the Lessee fails to accept delivery of
the Aircraft when validly tendered pursuant to
this Agreement by the Lessor (provided that the
Lessor shall have satisfied the conditions
precedent set out in Clause 3.4); or
(o) ADVERSE CHANGE: any event or series of events
occurs which, in the reasonable opinion of the
Lessor, could be expected to have a material
adverse effect on the financial condition or
operations of the Lessee and its Affiliates or on
the ability of the Lessee to comply with its
obligations under this Agreement; or
(p) LETTER OF CREDIT: if the Lessee has elected to
deliver the Letter of Credit in lieu of the
Security Deposit pursuant to Clause 5.1(b), the
Letter of Credit ceases for any reason to be in
full force and effect or is not renewed or
replaced 30 days before its expiration in
accordance with Clause 5.1(b) and the Lessee does
not immediately provide the Lessor with cash in an
amount equal to the Security Deposit.
13.2 RIGHTS
If an Event of Default occurs, and for as long as it
shall continue, the Lessor may at its option (and
without prejudice to any of its other rights under this
Agreement or that may arise by operation of Applicable
Law), at any time thereafter:
(a) treat such event as a repudiation by the Lessee of
its obligations under this Agreement and by notice
to the Lessee with immediate effect terminate the
leasing of the Aircraft (but without prejudice to
the continuing obligations of the Lessee under
this Agreement), whereupon all rights of the
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 the Lessor may enter any premises
belonging to, occupied by or under the
control of the Lessee (for which purpose the
Lessee hereby grants to the Lessor an
irrevocable license to the extent permitted
by Applicable Law) where the Aircraft may be
located, or cause the Aircraft to be
<PAGE>redelivered to the Lessor at the
Redelivery Location (or such other location
as the Lessor may require), and the Lessor is
hereby irrevocably authorized and empowered,
to the extent permitted by Applicable Law,
to direct pilots of the Lessee or other
pilots to fly the Aircraft to that airport
and will have all the powers and
authorizations necessary for taking such
action; or
(ii) by serving notice, require Lessee to
redeliver the Aircraft to Lessor at the
Redelivery Location (or such other location
as Lessor may require) in the condition
required by Clause 12 and Schedule 4.
13.3 EXPORT
If an Event of Default occurs, and for as long as it
shall continue, the Lessor may sell or otherwise deal
with the Aircraft as if this Agreement had never been
made and the Lessee will, at the request of the Lessor,
take all steps necessary to deregister the Aircraft
from the aircraft registry of the State of Registration
(if other than the United States of America) and export
the Aircraft from the country where the Aircraft is for
the time being registered or situated and any other
steps necessary to enable the Aircraft to be
redelivered to the Lessor in accordance with this
Agreement. The Lessee hereby irrevocably and by way of
security for its obligations under this Agreement
authorizes and empowers the Lessor as its
attorney-in-fact and agent (such agency being coupled
with an interest), in Lessor's own name or in the name
of Lessee, 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 Default occurs, the Lessee will indemnify and pay
to Lessor on demand against any loss, damage, expense,
cost or liability which the Lessor may sustain or incur
directly or indirectly as a result, including:
(a) all unpaid Basic Rent, Additional Rent and
Supplemental Rent then due and unpaid;
(b) any loss of profit (calculated on an after-tax
basis) suffered by the Lessor because of the
Lessor's inability to place the Aircraft on lease
with another Lessee on terms as favorable to the
Lessor as this Agreement or because whatever use,
if any, to which the Lessor is able to put the
Aircraft upon its return to the Lessor, is not as
profitable (calculated on an after-tax basis) to
the Lessor as this Agreement would have been but
for such Default or non-delivery;
<PAGE>
(c) in the event that the Aircraft is sold prior to
Lessor entering into a replacement lease, the
amount (if any) by which (i) the aggregate of (1)
the net sale proceeds (calculated by deducting the
costs of sale together with the cost of preparing
the Aircraft for sale and the repayment of any
outstanding indebtedness in relation to the
financing of the Aircraft) plus (2) the present
value of the anticipated after-tax net income to
be derived from such net sale proceeds up to the
Scheduled Expiry Date, discounted on a monthly
basis using 9.5% per annum as the discount rate,
are less than (ii) the aggregate of (1) the
present value of the anticipated net sale proceeds
(computed on the same basis as the net sale
proceeds referred to in (i)(1) above), assuming
that the Aircraft would have been sold as soon as
reasonably practicable following the Scheduled
Expiry Date plus (2) the present value of the
income that would have been derived from the
future Basic Rent payable until the Scheduled
Expiry Date, discounted on a monthly basis using
9.5% per annum as the discount rate;
(d) any amount of principal, interest, fees or other
sums whatsoever paid or payable on account of
funds borrowed in order to carry any amount unpaid
by the Lessee;
(e) any loss, premium, penalty or expense that 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 the
Lessor's financing of the Aircraft; and
(f) any loss, cost, expense or liability sustained or
incurred by the Lessor owing to the Lessee's
failure to redeliver the Aircraft on the date, at
the place and in the condition required by this
Agreement.
For the avoidance of doubt, the provisions of Clause
5.7(a) will apply to any sums payable by the Lessee
pursuant to this Clause 13.4.
13.5 WAIVER OF CERTAIN ARTICLE 2A RIGHTS
To the fullest extent permitted by Applicable Law, each
of Lessor and Lessee hereby agree that no rights or
remedies referred to in Article 2A of the Uniform
Commercial Code shall be conferred upon either Lessor
or Lessee unless otherwise expressly granted in this
Agreement.
<PAGE>
14. ASSIGNMENT and TRANSFER
14.1 NO ASSIGNMENT BY LESSEE
The Lessee will not assign any of its right, title,
interests, duties, obligations or liabilities in, to or
under this Agreement, or create or permit to exist any
Security Interest (other than Permitted Liens) over any
of its rights under this Agreement, and any such
purported assignment or grant of a security interest
shall be void ab initio and of no force or effect.
14.2 LESSOR ASSIGNMENT
The Lessor may sell, assign (for purposes of this
Clause 14.2, not including an assignment for security
purposes) or transfer all or any of its rights under
this Agreement and in the Leased Property provided that
the provisions of this Clause 14.2 are satisfied (a
"Transfer") and the Lessor will have no further
obligations under this Agreement following a Transfer
(other than obligations that are outstanding as of the
date of such Transfer) but, notwithstanding any
Transfer, will remain entitled to the benefit of each
indemnity under this Agreement.
(a) In connection with any Transfer, the following
conditions shall apply:
(i) Lessor shall give Lessee written notice of
such Transfer at least 10 Business Days
before the date of such Transfer, specifying
the name and address of the proposed
purchaser, assignee or transferee (the
"Transferee");
(ii) the Transferee will be either (1) a Person
reasonably experienced in aircraft leasing
(or the Transferee's rights and powers under
this Agreement shall be exercised or serviced
on its behalf pursuant to an appropriate
management or servicing agreement by a Person
having such experience) with a net worth in
excess of $15,000,000, or (2) a Person with
at least 10 years of experience (or whose
principals have at least 10 years of
experience) in aircraft leasing (or the
Transferee's rights and powers under this
Agreement shall be exercised or serviced on
its behalf pursuant to an appropriate
management or servicing agreement by a Person
having such experience) with a net worth in
excess of $7,500,000 and which causes a
United States bank, trust company or other
financial institution to agree to hold all
Additional Rent paid to Lessor in a
segregated, interest-bearing account of such
institution to be applied to the obligations
of Lessor pursuant to Clause 7.2 of this
Agreement;
<PAGE>
(iii) the Transferee will be a "citizen of the
United States" within the meaning of
Section 40102(a)(15) of the Federal
Aviation Law and have full corporate
power and authority to enter into and
perform the transactions contemplated by
this Agreement on the part of "Lessor";
(iv) on the Transfer date the Lessor and the
Transferee shall enter into an agreement or
agreements acceptable to Lessee in its
reasonable discretion in which the Transferee
confirms that it shall be deemed a party to
this Agreement and agrees to be bound by all
the terms of, and to undertake all of the
obligations of, the Lessor contained in this
Agreement;
(v) such Transfer shall not violate any
Applicable Law;
(vi) the Transferee shall provide to Lessee an
opinion of its regular independent counsel as
to the matters set forth in sub-clause (iii)
and as to the legality, validity, binding
effect and enforceability of the agreement or
agreements between Lessor and Transferee
referred to in sub-clause (iv); and
(vii) Lessee shall have no obligation to
consent to any changes in this Agreement
requested by the Lessor or Transferee.
(b) Upon any Transfer, the Transferee shall be deemed
Lessor for all purposes of this Agreement, each
reference in this Agreement to the "Lessor" shall
thereafter be deemed for all purposes to refer to
the Transferee, and the transferor shall be
relieved of all obligations of the "Lessor" under
this Agreement arising after the time of such
Transfer except to the extent attributable to acts
or events occurring prior to the time of such
Transfer.
(c) Upon compliance by Lessor and a Transferee with
the terms and conditions of Clause 14.2(a), Lessee
shall at the time of Transfer, at the specific
written request of Lessor and with Lessor paying
all of Lessee's reasonable out-of-pocket costs and
expenses and, if Lessee does not use outside
counsel in connection with such Transfer, Lessee's
reasonable internal legal costs:
(i) execute and deliver to Lessor and to such
Transferee an agreement, in form and
substance satisfactory to Lessor, Lessee and
such Transferee, dated the date of such
transfer, consenting to such transfer,
agreeing to pay all or such portion of the
Basic Rent, Additional Rent and other
payments under this Agreement to such
<PAGE>Transferee or its designee as such
Transferee shall direct, and agreeing that
such Transferee shall be entitled to rely on
all representations and warranties made by
Lessee in the Operative Documents as though
such Transferee was the original "Lessor";
provided, that such representations shall not
be deemed to be re-made as of the date of any
Transfer;
(ii) execute and deliver to Lessor or such
Transferee, as the case may be, precautionary
Uniform Commercial Code financing statements
or amendments reflecting the interests of
such Transferee in the Aircraft and this
Agreement;
(iii) deliver to Lessor and to such Transferee
a certificate, signed by a duly
authorized officer of Lessee, dated the
date of such transfer, to the effect
that no Event of Default has occurred
and is continuing or, if one is then
continuing, describing such Event of
Default;
(iv) cause to be delivered to Lessor and such
Transferee certificates of insurance and
broker's letter of undertaking substantially
in the form set out in Parts 2 and 3 of
Schedule 5, detailing the coverage and
confirming the insurers' agreement to the
specified insurance requirements of this
Agreement and listing the Lessor and
Transferee as additional insureds and the
Transferee as sole loss payee (subject to
other direction by Mortgagee);
(v) deliver to Lessor and to such Transferee an
opinion of Lessee's counsel (which may be
Lessee's General Counsel), addressed to
Lessor and such Transferee to the effect
that the agreement referred to in sub-clause
(i) has been duly authorized and executed by
Lessee and constitutes the legal, valid and
binding obligation of Lessee, enforceable
against Lessee in accordance with its terms
(subject to customary exceptions), and (if
such counsel delivered the opinion attached
as Exhibit D on the Delivery Date) to the
effect that such Transferee may rely on the
opinion delivered by such counsel in
connection with this Agreement on the
Delivery Date with the same force and effect
as if such Transferee was an original
addressee of such opinion when given;
(vi) deliver to Lessor and such Transferee
information on the location of the Airframe
and Engines at all times requested by Lessor
in order to permit the Transfer to take place
at a time and on a date so as to eliminate or
minimize any Taxes applicable to the
Transfer; and
<PAGE>
(vii) such other documents as Lessor or such
Transferee may reasonably request.
14.3 GRANTS OF SECURITY INTERESTS
The Lessor shall be entitled at any time after Delivery
to grant a security interest in the Leased Property or
its right, title and interest in this Agreement (each,
an "Additional Mortgage") in favor of any Person (each,
an "Additional Mortgagee"). Any Additional Mortgage
may be a successor mortgage to the Security Interest
granted to Mortgagee, or may be in addition to
Mortgagee's Security Interest and previous Additional
Mortgages and with a priority senior, equal or
subordinate to Mortgagee's Security Interest and
previous Additional Mortgages as Mortgagee and previous
Additional Mortgagees may permit. In the case of any
such grant by Lessor of an Additional Mortgage to an
Additional Mortgagee in all or any portion of Lessor's
rights, title and interest in and to the Aircraft and
this Agreement, Lessee shall promptly, at the specific
written request of Lessor and with Lessor paying all of
Lessee's reasonable out-of-pocket costs and expenses:
(a) execute and delivery to Lessor and to such
Additional Mortgagee an agreement, substantially
in the form of the Consent and otherwise in form
and substance satisfactory to Lessor, such
Additional Mortgagee and Lessee, dated the date of
the grant of such Additional Mortgage,
(i) consenting to such Additional Mortgage and to
any assignment of Lessor's rights, title and
interest in and to this Agreement to such
Additional Mortgagee for security purposes,
(ii) if requested by Lessor and consented to by
the previous payee, agreeing that Lessee will pay
the Basic Rent and other payments under this
Agreement to such Additional Mortgagee, and
(iii) agreeing that such Additional Mortgagee
shall be entitled to rely on all representations
and warranties made by Lessee in this Agreement or
in any certificate or document furnished by Lessee
in connection with this Agreement Documents as
though such Additional Mortgagee was originally
the "Mortgagee";
(b) execute and deliver to Lessor and such Additional
Mortgagee such agreements as the Lessor may
reasonably require and which are acceptable to
Lessee for the purposes of effecting all necessary
amendments to this Agreement;
(c) execute and deliver to Lessor or such Additional
Mortgagee, as the case may be, precautionary
Uniform Commercial Code financing statements or
amendments reflecting the assignment of Lessor's
interests in the Operative Documents to such
Additional Mortgagee;
<PAGE>
(d) deliver to Lessor and such Additional Mortgagee a
certificate, signed by a duly authorized officer
of Lessee, dated the date of the grant of the
Additional Mortgage, to the effect that no Event
of Default has occurred and is continuing or, if
one is then continuing, describing such Event of
Default;
(e) cause to be delivered to Lessor and such
Additional Mortgagee certificates of insurance and
broker's letter of undertaking substantially in
the form set out in Parts 2 and 3 of Schedule 5,
detailing the coverage and confirming the
insurers' agreement to the specified insurance
requirements of this Agreement, adding such
Additional Mortgagee as an additional insured and,
if requested by Lessor and consented to by the
previous loss payee, listing such Additional
Mortgagee as sole loss payee;
(f) deliver to Lessor and such Additional Mortgagee an
opinion of Lessee's counsel (which may be Lessee's
General Counsel), addressed to Lessor and such
Additional Mortgagee (i) to the effect that the
agreements referred to in sub-clauses (a) and (b)
have been duly authorized and executed by Lessee
and constitute the legal, valid and binding
obligations of Lessee, enforceable against Lessee
in accordance with their terms (subject to
customary exceptions), and (ii) if such counsel
delivered the opinion attached as Exhibit D on the
Delivery Date, to the effect that such Additional
Mortgagee may rely on the opinion delivered by
such counsel in connection with this Agreement on
the Delivery Date with the same force and effect
as if such Additional Mortgagee was an original
addressee of such opinion when given; and
(g) such other documents as Lessor or such Additional
Mortgagee may reasonably request.
14.4 SALE AND LEASEBACK BY LESSOR
In addition to the Transfers and grants of Security
Interests permitted by Clauses 14.2 and 14.3, but
subject to the provisions thereof, Lessor shall be
entitled to transfer its right, title and interests in
and to the Leased Property to any Person and lease the
Aircraft from such Person (a "Head Lessor"), and in
such event Lessor shall retain its rights and
obligations as the "Lessor" under this Agreement. In
the event of such a sale and lease-back by Lessor,
(a) the Head Lessor shall meet the requirements for a
"Transferee" as defined in Clause 14.2(a)(ii) above,
(b) the Lessor shall be entitled to assign its rights
in this Agreement to such Head Lessor as security for
its obligations under the head lease, (c) the Head
Lessor shall be entitled to grant to one or more
purchase money lenders, or to an indenture trustee on
behalf of such lenders, an Additional Mortgage covering
the Leased Property and the Operative Documents,
(d) Lessee shall execute and deliver to Lessor, such
Head Lessor, such Additional <PAGE>Mortgagee and any
trustees on their behalf, as appropriate, the documents
specified in Clauses 14.2(c)(i) through (vi) and
Clauses 14.3(a) through (f) above, and Lessee shall
cooperate with Lessor to make such other changes to
this Agreement as Lessor may reasonably request so long
as such changes do not adversely affect the rights or
increase or extend the obligations of Lessee under this
Agreement or otherwise adversely affect Lessee and with
Lessor paying all of Lessee's reasonable out-of-pocket
costs and expenses.
14.5 FURTHER ACKNOWLEDGMENTS
Lessee further acknowledges that any Transferee or
Additional Mortgagee shall in turn have the rights of,
and be subject to the conditions to, transfer and
grants of Security Interests set forth above in this
Clause 14.
14.6 CERTAIN PROTECTIONS FOR LESSEE'S BENEFIT
The rights of Lessee under this Agreement shall be
superior to the rights of any Additional Mortgagee or
Head Lessor, and the Lessor shall require each
Additional Mortgagee and Head Lessor to agree in
writing with the Lessee that such Additional
Mortgagee's and Head Lessor's rights in and to the
Leased Property shall be subject to the terms of this
Agreement, including to the Lessee's rights to the
quiet use, possession and enjoyment provisions
contained in this Agreement. The Lessor's obligations
to perform the terms and conditions of this Agreement
shall remain in full force and effect notwithstanding
the creation of any Additional Mortgage or Head Lease.
Lessor shall not create any Additional Mortgage or
enter into any Head Lease that violates the terms of
this Clause 14.6.
15. MISCELLANEOUS
15.1 WAIVERS, REMEDIES CUMULATIVE
The rights of Lessor or Lessee under this Agreement may
be exercised as often as necessary, are cumulative and
not exclusive of that party's rights under any law and
may be waived only in writing and specifically. Delay
in exercising or non-exercise of any such right is not
a waiver of that right.
15.2 DELEGATION
Lessor or any Financing Party may delegate to any
Person or Persons all or any of the trusts, powers or
discretions vested in it by this Agreement and any such
delegation may be made upon such terms and conditions
and subject to such regulations (including power to
sub-delegate) as the Lessor or such Financing Party,
respectively, in its absolute discretion thinks fit.
<PAGE>
15.3 APPROPRIATION
If any sum paid or recovered in respect of the
liabilities of the Lessee under this Agreement is less
than the amount then due, the Lessor may apply that sum
to amounts due under this Agreement in such proportions
and order and generally in such manner as the Lessor
may determine.
15.4 CURRENCY INDEMNITY
(a) If the Lessor receives an amount in respect of the
Lessee's liability under this Agreement or if such
liability is converted into a claim, proof,
judgment or order in a currency other than
Dollars:
(i) the Lessee will indemnify the Lessor, as an
independent obligation, against any loss
arising out of or as a result of such
conversion;
(ii) if the amount received by the Lessor, when
converted into Dollars (at the market rate at
which the Lessor is able on the relevant date
to purchase Dollars in New York City with
that other currency) is less than the amount
owed in Dollars, the Lessee will, forthwith
on demand, pay to the Lessor an amount in
Dollars equal to the deficit; and
(iii) the Lessee will pay to the Lessor on demand
any exchange costs and Taxes payable in
connection with the conversion.
(b) The Lessee waives, to the extent permitted by
Applicable Law, any right it may have in any
jurisdiction to pay any amount under this
Agreement in a currency other than Dollars.
15.5 PAYMENT BY THE LESSOR
The Lessor will not be obliged to pay any amounts to
the Lessee under this Agreement so long as any sums
which are then due from the Lessee under this Agreement
remain unpaid and any such amounts which would
otherwise be due will fall due only if and when the
Lessee has paid all such sums.
15.6 SEVERABILITY
If a provision of this Agreement is or becomes illegal,
invalid or unenforceable in any jurisdiction, that will
not affect:
<PAGE>
(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.
15.7 REMEDY
If the Lessee fails to comply with any provision of
this Agreement, the Lessor may, without being in any
way obliged to do so or responsible for so doing and
without prejudice to the ability of the Lessor to treat
the non-compliance as a Default, effect compliance on
behalf of the Lessee, whereupon the Lessee shall become
liable to pay immediately any sums expended by the
Lessor together with all costs and expenses (including
reasonable legal costs) necessarily incurred in
connection therewith.
15.8 EXPENSES
(a) The Lessor and the Lessee shall each bear their
respective expenses (including legal, professional
and out-of-pocket expenses) incurred or payable in
connection with the negotiation, preparation and
execution of this Agreement, and shall share
equally the fees and expenses of Special FAA
Counsel in connection with the transactions
contemplated by this Agreement, including in
connection with the Assignment and Mortgage.
Lessor shall otherwise bear and be responsible for
all fees and expenses in connection with the
importation and registration of the Aircraft and
the registration and recording of the Assignment
and Mortgage.
(b) The Lessee shall pay to the Lessor on demand all
expenses (including legal, professional and
out-of-pocket expenses) incurred or payable by the
Lessor in connection with the granting of any
waiver or consent under this Agreement.
(c) The Lessee will pay to the Lessor on demand all
expenses (including reasonable legal, survey and
other costs) payable or incurred by the Lessor in
contemplation of, or otherwise in connection with,
the enforcement of or preservation of any of the
Lessor's rights under this Agreement, or in
respect of the repossession of the Aircraft.
(d) The Lessor will pay to the Lessee on demand all
expenses (including reasonable legal costs)
payable or incurred by the Lessee in contemplation
of, <PAGE>or otherwise in connection with, the
enforcement of or preservation of any of the
Lessee's rights under this Agreement.
15.9 TIME OF ESSENCE
The time stipulated in this Agreement for all payments
payable by the Lessee to the Lessor and for the
performance of the Lessee's other obligations under
this Agreement that are due on a specified or
determinable date will be of the essence of this
Agreement (subject always to any applicable grace
period).
15.10 NOTICES
(a) All notices and other communications given under
or in connection with this Agreement shall be in
writing (including telegram) and shall be deemed
to have been received when delivered to the
address specified in clause 15.10(b).
(b) All such notices, requests, demands and other
communications shall be sent:
(i) to Lessor at: c/o Unicapital Air Group, Inc.
1900 Summit Tower Blvd.,
Suite 860
Orlando, Florida 32810
Attention: Mr. Samuel J. Thornton
Telephone: +1-407-916-8000
Telefax: +1-407-916-8001
copied to Mortgagee at: FINOVA Capital Corporation
1850 North Central Avenue
Phoenix, Arizona 85002
Attention: Vice President - Operations
Management
Telefax: +1-602-262-1551
(ii) to Lessee at: 7000 Squibb Road, 3rd Floor
Mission, Kansas 66202
Attention: Mr. William A. Garrett, III
Telephone: +1-913-789-1769
Telefax: +1-913-789-1779
or to such other address as shall have been notified by
one party to the other in the manner set out in this
Clause 15.10.
15.11 LAW AND JURISDICTION
<PAGE>
(a) THIS AGREEMENT SHALL, IN ALL RESPECTS, INCLUDING
ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE, BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS ENTERED INTO IN THE STATE
OF NEW YORK BY RESIDENTS OF SUCH STATE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE.
(b) The Lessor and the Lessee hereby irrevocably agree
to submit to the non-exclusive jurisdiction of the
United States District Court for the Southern
District of New York and the Supreme Court of the
State of New York located in the Borough of
Manhattan, County of New York (the "Agreed
Courts") in the event of any claims or disputes
arising under this Agreement. Such submission to
jurisdiction shall not be construed so as to limit
the right of either party to take proceedings
against the other in whatever jurisdiction shall
to it seem fit nor shall the taking of proceedings
in any one or more jurisdictions preclude the
taking of proceedings in any other jurisdiction,
whether concurrently or not. Final judgment
against Lessor or Lessee in any such suit shall be
conclusive and may be enforced in any other
jurisdiction by suit on the judgment or as
otherwise permitted by Applicable Law, a certified
or true copy of which shall be conclusive evidence
of the facts and of the amount of any indebtedness
or liability of Lessor or Lessee. Each of Lessor
and Lessee hereby irrevocably waives any objection
which it may now or hereafter have to the laying
of venue in any suit, action or proceeding brought
in any Agreed Court, and irrevocably waives any
claim that any such suit, action or proceeding
brought in any Agreed Court has been brought in an
inconvenient forum.
(c) THE LESSEE AND THE LESSOR HEREBY WAIVE TRIAL BY
JURY IN ANY JUDICIAL PROCEEDING TO WHICH THEY ARE
PARTIES INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER ARISING OUT OF OR RELATING TO THIS
AGREEMENT.
(d) Without prejudice to any other mode of service,
each of the Lessor and the Lessee consents to the
service of process relating to any proceedings
involving, directly or indirectly, any matter
arising out of or relating to this Agreement by
U.S. Postal Service or Irish postal service
registered mail (prepaid, return receipt
requested) of a copy of the process to the
Lessee's address identified in Clause 15.10(b).
15.12 SOLE AND ENTIRE AGREEMENT
<PAGE>
This Agreement is the sole and entire agreement between
the Lessor and the Lessee in relation to the leasing of
the Aircraft, and supersedes all previous agreements in
relation to that leasing. The terms and conditions of
this Agreement can only be varied by an instrument in
writing executed by both parties or by their duly
authorized representatives.
15.13 INDEMNITIES
All rights expressed to be granted to each Indemnitee
under this Agreement (other than any Financing Party)
are given to the Lessor as agent for and on behalf of
that Indemnitee.
15.14 COUNTERPARTS
This Agreement may be executed in one or more
counterparts, each of which shall constitute an
original and, when taken together, all of which shall
constitute one and the same Agreement.
15.15 CONFIDENTIALITY
Neither the Lessor nor the Lessee shall, without the
other's prior written consent, communicate or disclose
the terms of this Agreement or any information or
documents furnished pursuant to this Agreement (except
to the extent that the same are within the public
domain) to any third party (other than any Financing
Party, any prospective Transferee, any material
investor in the Lessee or creditor in Lessee,
Additional Mortgagees or Head Lessors, the respective
external legal advisers, auditors, insurance brokers or
underwriters of Lessor, Lessee and such parties, and
the Manufacturer and Engine Manufacturer); provided,
that disclosure will be permitted, to the extent
required:
(a) pursuant to an order of any court of competent
jurisdiction; or
(b) pursuant to any procedure for discovery of
documents in any proceedings before any such
court; or
(c) pursuant to any law or regulation having the force
of law; or
(d) pursuant to a lawful requirement of any authority
with whose requirements the disclosing party is
legally obliged to comply; or
(e) in order to perfect any assignment of any
assignable warranties.
<PAGE>
[SIGNATURE PAGE FOLLOWS]
<PAGE>
IN WITNESS WHEREOF Lessor and Lessee have executed this Lease
Agreement 22121 on the date shown at the beginning of this
Agreement.
SIGNED on behalf of
AIRCRAFT 22121, INC.
By:________________________________
Name:
Title:
SIGNED on behalf of
VANGUARD AIRLINES, INC.
By:_______________________________
Name:
Title:
[FINOVA Capital Corporation hereby acknowledges receipt
of this Original Executed Counterpart of Lease Agreement 22121 in
Phoenix, Arizona on this ____ day of July 1999.
FINOVA CAPITAL CORPORATION
By:________________________________
Name:
Title]<F1>
_________________________
[FN]
<F1>
This text will only appear on one counterpart of Lease Agreement
22121.
</FN.
<PAGE>
SCHEDULE 1
BASIC RENT AND OTHER TERMS
[Intentionally Omitted as Containing
Confidential Information]<F2>
[FN]
<F2>
For inclusion on FAA filed copies of this Lease Agreement in lieu
of the following information.
</FN>
<PAGE>
2. RETURN CONDITION FINANCIAL ADJUSTMENTS
In addition to the requirements set forth in Clause 12 and
Schedule 4, on the Expiry Date (other than by reason of the
occurrence of a Total Loss) Lessor and Lessee will make the
following payments:
(a) For each Engine, if the number of Flight Hours or Cycles
(whichever is more limiting) of such Engine until its next
scheduled Engine Shop Visit on the Expiry Date is more than
the number of Flight Hours or Cycles (as the case may be) of
such Engine until its next scheduled Engine Shop Visit on
the Delivery Date, in each case under the Agreed Maintenance
Program, then Lessor shall pay to Lessee a Dollar amount
equal to (i) the product of such difference (based on actual
Delivery and redelivery) multiplied by the Engine Additional
Rent Rate, minus (ii) all amounts previously paid to Lessee
pursuant to Clause 7.3.
(b) For each Engine, if the number of Flight Hours or Cycles
(whichever is more limiting) of such Engine until its next
scheduled Engine Shop Visit on the Expiry Date is fewer than
the number of Flight Hours or Cycles (as the case may be) of
such Engine until its next scheduled Engine Shop Visit on
the Delivery Date, in each case under the Agreed Maintenance
Program, then Lessee shall pay to Lessor a Dollar amount
equal to the product of such difference (based on actual
Delivery and redelivery) multiplied by the Engine Additional
Rent Rate.
(c) Any amounts owed by Lessee to Lessor pursuant to Clause 2(b)
of this Schedule 1 with respect to an Engine may be offset
by an amount equal to the lesser of (i) such amount owed or
(ii) an amount equal to (1) all Engine Additional Rent
previously paid by Lessee for such Engine pursuant to this
Agreement, minus (2) all previous payments for such Engine
by Lessor under Clause 7.2(b).
<PAGE>
SCHEDULE 2
PART 1
AIRCRAFT SPECIFICATION
IDENTIFICATION:
Aircraft Model: Boeing Model 737-230
Registration Mark: N123NJ
Serial Number: 22121
Date of Manufacture: February 1981
WEIGHT DATA:
Maximum Taxi Weight: 120,000 lbs. (subject to Item
1(g) of Schedule 3)
Maximum Takeoff Weight: 119,500 lbs. (subject to Item
1(g) of Schedule 3)
Maximum Landing Weight: 103,000 lbs.
Maximum Zero Fuel Weight: 95,000 lbs.
Fuel Capacity: 34,469 U.S. Gallons
AIRFRAME AND INTERIOR EQUIPMENT:
Galleys four Locations: two forward; two aft
Lavatories three Locations: ___ forward and ____ aft
Air Stairs ___ Locations: ___ forward
Passenger Seats 105 Locations/Types: 12 first class; 93 economy class
Overhead bins ___
Cargo Door ___
ENGINES:
Manufacturer: Pratt & Whitney
Position No.1 No.2
Model: JT8D-15 JT8D-15
Serial Numbers: 702943 708372
<PAGE>
APU:
Model: [_____]
Serial Number: [_____]
LANDING GEAR:
Position: Nose Left Main Right Main
Type: [_____] [_____] [_____]
Serial Number: [_____] [_____] [_____]
HARD TIME COMPONENTS:
[to be supplied, as listed in Exhibit B to LOI]
MAJOR AVIONICS EQUIPMENT:
Description Manufacturer Part No. Quantity
[to be supplied]
<PAGE>
PART 2
AIRCRAFT DOCUMENTS
1. MANUALS
The following manuals shall be delivered with the Aircraft.
Each manual shall be current and include all temporary
revisions. Each manual shall be in the English language.
(a) FAA-Approved Airplane Flight Manual.
(b) Weight and Balance Control and Cargo Loading Manual and
Supplements (load and trim sheet). Include last weight
paperwork and delivery equipment list with Previous
Operator running W&B computation sheets.
(c) Operations Manual and Quick Reference Handbook
including Cabin Safety/F/A Manual (PAX A/C).
(d) Structural Repair Manual
(e) Aircraft/Engine/APU Maintenance Manuals
(f) Boeing Component Overhaul Manuals, including Galley
Manuals (CMM, IPC, OHM)
(g) Aircraft/Engine/APU Illustrated Parts Catalog (IPC)
(Operator Customized)
(h) Wiring Diagram Manual including the following:
(i) Equipment List
(ii) Standard Practices (Chapter 20)
(iii) Charts and Graphs (Chapter 91)
(iv) Hook Up Charts
(v) Splice List
(vi) Ground List
(vii) Terminal List
(i) Engine and APU Overhaul Manuals
<PAGE>
(j) Previous Operator's Maintenance Schedule and (COSL)
component operating an storage limits manual
2. AIRWORTHINESS DIRECTIVES ("A.D.") DOCUMENTATION
The following data will be provided as well as all records
associated with A.D. compliance:
(a) A single, complete and current A.D. status list of each
airframe, appliances, Engine and APU Airworthiness
Directive applicable to each Aircraft, appliances,
Engine and APU. This list shall be consistent with the
preliminary A.D. status reports received during the
initial inspection. The list shall be typed, certified
and signed by authorized quality assurance
representative of Previous Operator.
(b) Lessor will provide legible copies of the completion
documentation that accomplish each A.D. If the A.D. is
a repetitive inspection documentation, the last
accomplishment is sufficient. If the original
completion documents are not available, Lessor shall
provide at a minimum a copy of the job card of
engineering order that accomplished the A.D., plus a
certification letter signed by Previous Operator's
airworthiness department stating that the A.D. in
question was accomplished at a certain time and cycles,
date and reference all pertinent support documentation
(i.e. engineering order, alternate means of compliance,
etc.). However, any A.D. that was complied with by an
alternate means of compliance must have all original
documentation and necessary air authority approvals.
(c) Exemptions or deviations granted by the FAA to the
Previous Operator on A.D. compliance, including copy of
exemption request.
3. ENGINEERING DOCUMENTATION
(a) Lessor shall provide a single, current list in English
language (except for the ADA list referenced in
3(a)(ii) below:
(i) Service Bulletin status based on the Boeing
provided summary of all Boeing service bulletins
to the Aircraft and consistent with the "reference
only" status report provided during the initial
inspection.
(ii) List of all Previous Operator initiated
on-aircraft modifications consistent with the ADA
list covering all Spec. 100 ATA chapters. A
current copy of all engineering orders listed on
the ADA list shall be provided with appropriate
certification stamp on the ADA list.
(iii) Major repairs list
<PAGE>
(iv) Supplement Type Certificate list
(b) Data package covering all non-manufacturer/non-Aviation
Authority approved repairs or alterations, including
the submittal to the Previous Operator's aviation
authority for an approval, if applicable.
4. ADDITIONAL DOCUMENTATION
(a) Master Minimum Equipment List and Configuration
Deviation List
(b) Set of cockpit drawings (full scale preferably)
(c) Quarterly Reliability Reports for one (1) year (if
available)
(d) Location map of emergency equipment with description
(e) Interior configuration drawings
(f) Passenger/Cargo Equipment List (seats, galleys,
lavatories, entertainment)
(g) Complete paperwork for last "D" Check overhaul and last
"A", "B" and/or "C" check inspections (if available)
(h) Compass card and F.D.R. calibration documentation
(i) All life records for the assemblies and rotable parts
installed during the last overhaul for each nose, left
hand and right hand main landing gears
5. INDIVIDUAL AIRCRAFT AND ENGINE RECORDS
(a) Letter of Declaration for each major aircraft/engine
accident or major incident which shall include complete
documentation reports, if any
(b) Major structural damage reports, if any
(c) Engine trend monitoring data (1 year minimum provided
the Engine was operated by Lessee) for each Engine
(d) Copies of logbook entries for the last twelve (12)
months of operation (at delivery) (if available)
<PAGE>
(e) List of open items, watch items, deferred items
(f) Serviceable/overhaul tags for all life limited parts,
hard time components listed in the rotable components
list; serviceable overhaul tags for OC (on condition)
and CM (condition monitored) parts listed in the
rotable components list for the last 12 months as at
delivery shall be provided to Lessor by Previous
Operator on a case by case basis up to a maximum of one
(1) year after delivery)(if available)
(g) Listing of Aircraft, Engine and APU components status
by P/N-S/N-Description Position TBO-TSI-TSO-TSN, total
time, next due time, including interpretation keys,
(Rotable Component List)
(h) Engine and APU logbooks or equivalent reports or
documentation (if available)
(i) Aircraft and Engine time status at delivery with serial
number, total time, total cycles and times of the last
letter check inspection
(j) Engine time report and engine on log which shall
include ASB 6038 status for each engine
(k) All Engine and APU records, for the last heavy
maintenance shop visit including back to birth history
for each engine life limited part. Exceptions will be
acceptable for parts introduced to Previous Operator
before 1993 when back to birth history records was not
mandatory, however Previous Operator has agreed to
assist Lessor in obtaining full traceability on these
parts, if any
(l) Manufacturer's delivery documents for Engines
(m) Manufacturer's Electrical Load Analysis documents and
data
(n) Last power plant test cell run documents for Engines
and APU
(o) Letter certifying that at the time of delivery the
Aircraft is a non-SSID candidate aircraft
(p) Previous Operator's Corrosion Control Program (See
Maintenance Schedule)
(q) Aircraft Readiness Log (from aircraft manufacturer)
(r) Copies of all applicable Master Changes (M.C.)
performed on each aircraft
<PAGE>
(s) Previous Operator's aviation authority approvals and
Previous Operator's certification reports for major
modifications alterations and repairs which are not
covered by manufacturers service bulletins. For minor
modifications not covered by manufacturers service
bulletins, Lessor shall cause Previous Operator to
provide the requested substantiation work. (i.e.
certification reports to the extent required by the
Previous Operator's aviation authority)
(t) Fire blocking status for all seats, interior
fabrics/material, including burn test documentation and
certification
(u) Current Aging Aircraft and CPCP Status Report
(v) Current list outlining all waiver items/components not
approved by the FAA
(w) Any historical records applicable to the aircraft,
engines or APU that may be available at reasonable
effort and within reasonable time by the Previous
Operator
(x) List detailing Previous Operator's component shop
history for all components on the rotable components
list on a case by case basis (up to a maximum of one
(1) year after aircraft delivery)
<PAGE>
SCHEDULE 3
OPERATING CONDITION AT DELIVERY
On the Expiry Date the Aircraft, subject to fair wear and tear
generally, will be in the condition set out below.
1. GENERAL CONDITION
The Aircraft will:
(a) be clean to a standard of aircraft fresh from overhaul;
(b) have installed the full of parts, accessories and loose
equipment required under the Agreed Maintenance
Program;
(c) be airworthy, conform to type design and be in a
condition suitable for immediate, safe operation in
commercial service with all equipment, components and
systems operating in accordance with their intended use
and within limits established by the manufacturer and
approved by the Aviation Authority, and all pilot
discrepancies and deferred maintenance items cleared on
a terminating action basis;
(d) have a U.S. Standard Transport Category Certificate of
Airworthiness issued by the FAA in accordance with FAR
Part 21 and unconditionally meet all Aviation Authority
requirements for immediate operations under FAR Part
121;
(e) be fresh from a Manufacturer's MPD "D" Check (phases C1
through C7), including 20,000 hour structural items and
complete CPCP inspection;
(f) have all gauges (including dipsticks) converted from
the metric system to the U.S. imperial system (pounds)
and accompanied by all required documentation from the
Manufacturer relative to the gauges; in addition, the
cockpit switches shall be reconfigured into the
Manufacturer's standard;
(g) be certified to operate at 120,000 lbs. Maximum Take
Off Weight; provided, that Lessee agrees to accept
delivery of the Aircraft at a Maximum Take Off Weight
of 116,000 lbs. subject to Lessor providing evidence to
Lessee that the weight upgrade has been ordered from
Boeing;
<PAGE>
(h) have had accomplished all outstanding airworthiness
directives and mandatory orders affecting that model of
Aircraft issued by the Aviation Authority that are due
within 90 days after the Delivery Date on a terminating
action basis; airworthiness directives and mandatory
orders that do not have a terminating action will be
accomplished at the highest level of inspection or
modification permitted;
(j) no special or unique manufacturer inspection or check
requirements specific to the Aircraft will exist (which
shall not include airworthiness directives or service
bulletins) unless there is no terminating action
available from any source;
(k) have TCAS, Windhsear, 11 parameter DFDR and escape path
lighting installed in accordance with FAA requirements;
(l) be free of any system-related leaks;
(m) all fluid reservoirs (including fuel, oil, oxygen,
hydraulic and water) will be full, and the waste tank
serviced in accordance with the manufacturer's
instructions;
(n) all fuel tanks will have recently undergone an
anti-fungus/biological growth contamination laboratory
evaluation, and any excessive levels of contamination
corrected;
(o) have all FAA-required signs and decals clean, secure
and legible and in the English language;
(p) shall be stripped and painted in the Lessee's livery
(including wings and stabilizers) in accordance with
the SRM and the paint manufacturer's instructions and
avoiding any overspray on other surfaces; and
(q) shall be accompanied by the aircraft records listed on
Part 2 of Schedule 2.
2. PARTS
(a) The Aircraft shall have installed the hard time
components as listed in Part 1 of Schedule 2.
(b) Each life limited or hard time controlled Part,
excluding Engine Parts, shall have not less than 50% of
the number of Flight Hours or Cycles (whichever is the
more limiting factor) remaining to the next scheduled
removal in accordance with the Agreed Maintenance
Program.
<PAGE>
(c) Each calendar limited Part (including hard time
controlled Parts with calendar limits) will have 50% of
its life or time between removals, as the case may be
(but not less than 12 months), remaining to its next
scheduled removal in accordance with the Agreed
Maintenance Program.
3. ENGINES
(a) The Aircraft shall have installed two serviceable Pratt
& Whitney JT8D-15 engines, and each such Engine shall
have installed a Nordam stage III LGW hushkit.
(b) The Engine bearing manufacturer's serial number 702943
shall have at least 2100 Flight Hours and 1750 Cycles
remaining to its next limiter under the Agreed
Maintenance Program. The Engine bearing manufacturer's
serial number 708372 shall have at least 4590 Flight
Hours and 4470 Cycles remaining to its next limiter
under the Agreed Maintenance Program.
(c) No Engine shall be "on engineering watch", on a reduced
interval inspection or otherwise have any defect that
reduces the Flight Hours or Cycles (whichever is more
limiting) of remaining life pursuant to Engine
Manufacturer's or airworthiness requirements until shop
visit to less than the number specified for such Engine
in Item 3(b) of this Schedule 3.
(d) The historical and technical records, condition trend
monitoring data, power assurance runs and borescope
inspection shall not indicate an abnormal acceleration
in the rate of performance deterioration or oil
consumption in any Engine.
4. FUSELAGE, WINDOWS AND DOORS
(a) The fuselage will not contain any dents, corrosion or
abrasions that exceed the prescribed limits under the
SRM and shall be free of loose, pulled or missing
rivets.
(b) The windows will not contain any delamination,
blemishes or crazing that exceed the prescribed limits
under the Manufacturer's maintenance manual and will be
properly sealed.
(c) The doors will be free moving, correctly rigged and
fitted with serviceable seals.
5. WINGS AND EMPENNAGE
(a) The leading edges will not contain any damage that
exceeds the prescribed limits under the SRM.
<PAGE>
(b) All unpainted cowlings and fairings will be polished.
(c) All wings will be free of fuel leaks.
6. INTERIOR
(a) The interior will be fully serviceable and in a
120-seats all economy configuration as operated by
Lessee with Weber 4001 passenger seats installed
including the installation of one G4 galley; all other
galleys installed in the Aircraft during the Lessee's
preliminary inspection will be removed or remain
installed pursuant to the Lessee's interior
configuration LOPA, and the Lessee shall be responsible
for providing all approved engineering documentation
relative to the installation of such interior
configuration.
(b) All emergency equipment installed in accordance with
Lessee's Emergency Equipment Diagram having a calendar
life will have a minimum of one year or 100% of its
total approved life remaining, whichever is less.
(c) All curtains, carpets, seat covers and seat cushions
installed in accordance with Lessee's requirements will
be serviceable, clean and free from stains and worn out
(threadbare) areas and will conform to FAR fire
resistance regulations as applicable to an FAR Part 121
operator.
7. COCKPIT
(a) All fairing panels shall be free of stains and cracks,
clean, secure and repainted as necessary.
(b) All floor coverings will be clean and effectively
sealed.
(c) All seat covers will be in good condition, clean and
free of stains and will conform to FAR fire resistance
regulations as applicable to an FAR Part 121 operator.
(d) All seats will be serviceable, in good condition and
repainted as necessary.
8. CARGO COMPARTMENTS
(a) All panels will be in serviceable condition and
effectively sealed in accordance with FAA requirements.
(b) All nets will be in serviceable condition in accordance
with FAA requirements.
<PAGE>
(c) The cargo compartments will comply with FAR fire
resistance and containment regulations as applicable to
an FAR Part 121 operator.
9. LANDING GEAR
(a) The installed main and nose landing gear components and
their associated actuators and parts shall be zero time
from overhaul, and shall have not less than 13,000
Cycles remaining for all life limited components.
(b) The tires and brakes will have 50% of the wear, as
specified by the manufacturer as serviceable limits,
remaining until next removal.
(c) The landing gear and wheel wells will be clean, free of
leaks and repaired as necessary.
10. APU
(a) The APU shall be serviceable in accordance with the
Agreed Maintenance Program parameters.
(b) The historical and technical records, condition trend
monitoring data, power assurance runs and borescope
inspection shall not indicate an abnormal acceleration
in the rate of performance deterioration or oil
consumption in the APU.
11. CORROSION
(a) The Aircraft will be in compliance with the CPCP and
will have been inspected and treated with respect to
corrosion as required by the CPCP; and
(b) The biocide treatment program for the fuel tanks will
be in operation and up-to-date under the Agreed
Maintenance Program.
<PAGE>
SCHEDULE 4
OPERATING CONDITION AT REDELIVERY
On the Expiry Date the Aircraft, subject to fair wear and tear
generally, will be in the condition set out below.
1. GENERAL CONDITION
The Aircraft will:
(a) be clean by United States airline standards;
(b) have installed the full complement of engines and other
equipment, parts and accessories and loose equipment
required under the Agreed Maintenance Program and
usually installed in the other Boeing 737-200 aircraft
operated by Lessee (together with any additions and
improvements thereto, or replacements thereof, effected
pursuant to and in accordance with this Agreement);
(c) be airworthy, conform to type design and be in a
condition suitable for immediate, safe operation in
commercial service with all equipment, components and
systems operating in accordance with their intended use
and within limits established by the manufacturer and
approved by the Aviation Authority, and all pilot
discrepancies and deferred maintenance items cleared on
a terminating action basis;
(d) have a U.S. Standard Transport Category Certificate of
Airworthiness issued by the FAA in accordance with FAR
Part 21 (or if required by the Lessor, a valid export
certificate of airworthiness with respect to the
Aircraft issued by the Aviation Authority) and
unconditionally meet all Aviation Authority
requirements for immediate operations under FAR Part
121;
(e) comply with the manufacturer's original specification
to the extent that it so complied on the Delivery Date
and subject to any alterations made pursuant to and in
accordance with this Agreement after such date;
(f) have undergone, immediately prior to redelivery, a "C"
Check in accordance with Clause 12.2(a) (so that all
Airframe inspections falling due within the next
following 3,000 Flight Hours or 13 months of operation
in accordance with the Agreed Maintenance Program have
been accomplished);
<PAGE>
(g) have at least two years remaining until the next Heavy
Check (or equivalent heavy maintenance check) under the
Agreed Maintenance Program;
(h) have had accomplished all outstanding airworthiness
directives and mandatory orders affecting that model of
Aircraft issued by the Aviation Authority that are due
during the Term or within 90 days after the Expiry Date
on a terminating action basis; airworthiness directives
and mandatory orders that do not have a terminating
action will be accomplished at the highest level of
inspection or modification permitted;
(i) be in compliance with the requirements of Clause
8.11(m);
(j) have no special or unique manufacturer inspection or
check requirements specific to the Aircraft (which
shall not include airworthiness directives or service
bulletins) unless there is no terminating action
available from any source;
(k) have installed all applicable vendor's and
manufacturer's service bulletin kits received free of
charge by the Lessee that are appropriate for the
Aircraft and, to the extent not installed, those kits
retained by Lessee will be furnished free of charge to
the Lessor;
(l) be free of any system-related leaks;
(m) all fluid reservoirs (including fuel, oil, oxygen,
hydraulic and water) will be full, and the waste tank
serviced in accordance with the manufacturer's
instructions;
(o) have all signs and decals clean, secure and legible;
and
(p) shall be stripped of Lessee's livery and either painted
white or painted in the livery of the next operator, as
identified by Lessor so long as such follow-on livery
is substantially the same as Lessee (and with Lessor
furnishing the next operator's paint scheme and logo
pounce pattern), in either case in accordance with the
SRM and the paint manufacturer's instructions and
avoiding any overspray on other surfaces; provided,
that Lessor shall bear any cost to Lessee of stripping
and painting the Aircraft in excess of $60,000.
2. PARTS
(a) Each life limited or hard time controlled Part,
excluding Engine Parts, shall have not less than 50% of
the number of Flight Hours or Cycles (whichever is the
more limiting factor) remaining to the next scheduled
removal in accordance with the Agreed Maintenance
Program; and
<PAGE>
(b) Each calendar limited Part (including hard time
controlled Parts with calendar limits) will have 50% of
its life or time between removals, as the case may be
(but not less than 12 months), remaining to its next
scheduled removal in accordance with the Agreed
Maintenance Program.
3. ENGINES
(a) Each engine installed on the Aircraft shall be an
Engine and (if not the engine installed at Delivery)
shall, to the extent not previously provided to the
Lessor, be accompanied by all documentation the Lessor
may require to evidence that title thereto is properly
vested in the Lessor in accordance with Clause 8.17(d).
(b) Each Engine shall have at least the same number of
Flight Hours and Cycles remaining to the next LLP
replacement as on the Delivery Date, and shall have at
least 4,000 Flight Hours and 4,000 Cycles remaining
until the next scheduled CER under the Agreed
Maintenance Program;
(c) No Engine shall be "on engineering watch", on a reduced
interval inspection or otherwise have any defect that
reduces the Flight Hours or Cycles (whichever is more
limiting) of remaining life pursuant to Engine
Manufacturer's or airworthiness requirements until
overhaul to less than 4,000; and
(d) The historical and technical records, condition trend
monitoring data, power assurance runs and borescope
inspection shall not indicate an abnormal acceleration
in the rate of performance deterioration or oil
consumption in any Engine.
4. FUSELAGE, WINDOWS AND DOORS
(a) The fuselage will not contain any dents, corrosion or
abrasions that exceed the prescribed parameters under
the SRM and shall be free of loose, pulled or missing
rivets. All repairs to the fuselage performed during
the Term will be flush instead of scab patches unless a
flush repair is not feasible.
(b) The windows will not contain any delamination,
blemishes or crazing that exceed the prescribed
parameters under the Manufacturer's maintenance manual
and will be properly sealed.
(c) The doors will be free moving, correctly rigged and
fitted with serviceable seals.
5. WINGS AND EMPENNAGE
<PAGE>
(a) The leading edges will not contain any damage that
exceeds the prescribed parameters under the SRM.
(b) All unpainted cowlings and fairings will be polished.
(c) All wings will be free of fuel leaks.
6. INTERIOR
(a) The interior will be fully serviceable and in the
configuration as at the Delivery Date.
(b) All emergency equipment having a calendar life will
have a minimum of one year or 100% of its total
approved life remaining, whichever is less.
(c) All curtains, carpets, seat covers and seat cushions
will be clean and free from stains and worn out
(threadbare) areas and will conform to FAR fire
resistance regulations as applicable to an FAR Part 121
operator.
7. COCKPIT
(a) All fairing panels shall be free of stains and cracks,
clean, secure and repainted as necessary.
(b) All floor coverings will be clean and effectively
sealed.
(c) All seat covers will be in good condition, clean and
free of stains and will conform to FAR fire resistance
regulations as applicable to an FAR Part 121 operator.
(d) All seats will be serviceable, in good condition and
repainted as necessary.
8. CARGO COMPARTMENTS
(a) All panels will be in good condition and effectively
sealed.
(b) All nets will be in good condition.
(c) The cargo compartments will comply with FAR fire
resistance and containment regulations as applicable to
an FAR Part 121 operator.
<PAGE>
9. LANDING GEAR
(a) The installed main and nose landing gear components and
their associated actuators and parts will be cleared of
all inspections for not less than 12 months, 3,000
Flight Hours or 3,000 Cycles of operation (whichever is
more limiting).
(b) The tires and brakes will have 50% of the wear, as
specified by the manufacturer as serviceable limits,
remaining until next removal.
(c) The landing gear and wheel wells will be clean, free of
leaks and repaired as necessary.
10. APU
(a) The APU shall be serviceable in accordance with the
Agreed Maintenance Program.
11. CORROSION
(a) The Aircraft will be in compliance with the CPCP and
will have been inspected and treated with respect to
corrosion as required by the CPCP; and
(b) The biocide treatment program for the fuel tanks will
be in operation and up-to-date under the Agreed
Maintenance Program.
<PAGE>
SCHEDULE 5
PART 1
(INSURANCE REQUIREMENTS)
1. The Insurances 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 for the Agreed
Value and with a deductible not exceeding the Hull
Insurance Deductible.
(b) HULL WAR AND ALLIED PERILS, covering those war risks
excluded from the Hull "All Risks" Policy to the extent
such coverage is available from the leading
international insurance markets, including confiscation
and requisition by the State of Registration, for the
Agreed Value;
(c) "ALL RISKS" PROPERTY INSURANCE (INCLUDING WAR AND
ALLIED RISK except when on the ground or in transit
other than by air or sea) on all Engines and Parts when
not installed on the Aircraft (to the extent not
covered under the Aircraft hull insurances described in
paragraphs (a) and (b) above), including Engine test
and running risks, in an amount equal to replacement
value in the case of the Engines;
(d) AIRCRAFT THIRD PARTY, BODILY INJURY/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 the time being in respect of any one
occurrence (but, in respect of products liability, this
limit may be an aggregate limit for any and all losses
occurring during the currency of the policy, and in
respect of liability arising out of certain offences,
the limit (within the said combined single limit) may
be $25,000,000 in respect of any one offence and in the
aggregate, and cargo and mail legal liability may be
subject to a limit of $1,000,000 any one occurrence);
War and Allied Risks are also to be covered under the
Policy to the extent available in the leading
international insurance markets. The Minimum Liability
Coverage may be adjusted upwards from time to time to
such an amount as the Lessor may be advised by its
insurance brokers constitutes the standard Minimum
Liability Coverage applicable to Boeing 737-200 series
aircraft operating in North America by an airline
similarly situated as Lessee. If the Lessee disputes
any such adjustment, the matter shall be referred to a
reputable independent insurance broker in the United
States of <PAGE>America appointed by the Lessor, whose
decision, acting as expert, shall be conclusive and
binding on the Lessee.
2. All required hull and spares insurance specified in Clauses
1(a), 1(b) and 1(c) above, so far as it relates to the
Aircraft, will:
(a) provide that any loss will be settled with the Lessee
(who undertakes to consult with the Lessor and
Mortgagee in regard thereto), and any claim that
becomes payable on the basis of a Total Loss shall be
paid in Dollars to Mortgagee as loss payee as its
interests may appear up to the Agreed Value, and loss
proceeds in excess of the Agreed Value shall be payable
to Lessee, with any other claim being payable as may be
necessary for the repair of the damage to which it
relates;
(b) if separate Hull "All Risks" and "War Risks" insurances
are arranged, include a 50/50 provision in the terms of
Lloyd's endorsement AVS103 or its equivalent; and
(c) confirm that the Insurers are not entitled to replace
the Aircraft in the event of a Total Loss.
3. All required liability insurances specified in Clause 1(d)
above will:
(a) include the Indemnitees and, for a period of three
years after the Delivery Date, the Previous Owner and
the Previous Operator as additional assureds for their
respective rights and interests, warranted (each as to
itself only) no operational interest; but the coverage
provided will not include claims arising out of their
legal liability as manufacturer, repairer or servicing
agent of the aircraft or any part thereof;
(b) include a severability of interest clause;
(c) contain a provision confirming that the policy is
primary without right of contribution and that the
liability of the insurers will not be affected by any
other insurance of which any Indemnitee or the Lessee
have the benefit; and
(d) accept and insure the indemnity provisions of this
Agreement to the extent of the risks covered by the
relevant policy or policies.
4. All Insurances will:
(a) be in accordance with normal industry practice of
Persons operating similar aircraft in similar
circumstances;
(b) provide coverage on a worldwide basis subject to those
territorial exclusions which are usual and customary
for carriers similarly situated with Lessee in the case
of War <PAGE>Risks and Allied Perils coverage which are
advised to and approved by Lessor, such approval not to
be unreasonably withheld;
(c) acknowledge that the insurers are aware that the
Aircraft is owned by the Lessor and is subject to this
Agreement;
(d) provide that, in relation to the interests of each of
the additional assureds, the Insurances will not be
invalidated by any act or omission of the Insured which
results in a breach of any terms, conditions or
warranty of the policies;
(e) provide that the Insurers will waive any rights of
recourse and/or subrogation against each additional
assured to the same extent that Lessee has waived or
has no rights of recovery against such additional
assured in the Lease;
(f) provide that the additional assureds will have no
obligation or responsibility for the payment of any
premiums (but reserve the right to pay the same should
any of them elect to do so) and that the Insurers will
waive any right of offset or counterclaim against the
respective additional assureds other than for
outstanding premiums in respect of the Aircraft, any
Engine or Part;
(g) provide that, except in the case of any provision for
cancellation or automatic termination specified in the
policies or endorsements thereof, the Insurance can
only be canceled or materially altered in a manner
adverse to the additional assureds by giving at least
30 days' written notice to the Lessor and each
Financing Party, except in the case of war risks (or
radioactive contamination), for which seven days'
written notice (or such lesser period as is or may be
customarily available in respect thereof) will be
given; and
(h) include a services of suit clause; and
(i) provide coverage with respect to losses in connection
with the change of year from 1999 to 2000, the change
of date from 21 August 1999 to 22 August 1999 and/or
any other change of year, date or time to the fullest
extent available in the worldwide aviation insurance
market including date recognition limited coverage
clauses AVN2001 and AVN2002 or their equivalent.
<PAGE>
PART 2
(FORM OF BROKER'S UNDERTAKING)
[To be supplied by Lessee's Broker]
<PAGE>
PART 3
[FORM OF INSURANCE CERTIFICATE]
[To be supplied by Lessee's Broker]
<PAGE>
EXHIBIT A
CERTIFICATE OF ACCEPTANCE
This Certificate of Acceptance is delivered on the date
set forth in paragraph 1 below by Vanguard Airlines, Inc. (the
"Lessee") to Aircraft 22121, Inc. (the "Lessor") pursuant to
Lease Agreement 22121, dated July 22, 1999, between the Lessor
and the Lessee (the "Agreement"). Capitalized terms used but not
defined in this Certificate of Acceptance shall have the meaning
given to such terms in the Agreement.
1. DETAILS OF ACCEPTANCE
The Lessee hereby confirms to the Lessor that the Lessee has
at __:__ _.m. G.M.T. on this _____ day of July 1999, at San
Jose, Costa Rica, accepted the following, in accordance with
the provisions of the Agreement.
(a) one Boeing Model 737-230 airframe, bearing
manufacturer's serial number 22121 and U.S.
registration mark N123NJ;
(b) two Pratt & Whitney Model JT8D-15 engines, bearing
manufacturer's serial numbers 702943 and 708372;
(c) all Parts installed on, attached to or appurtenant to
the Airframe and Engines; and
(d) the Aircraft Documents specified in Schedule 1 - Part 2
of the Agreement.
2. LESSEE'S CONFIRMATION The Lessee confirms to the Lessor
that as at the time indicated above, being the time of
Delivery:
(a) the Lessee's representations and warranties contained
in Clauses 2.1 and 2.2 of the Agreement are hereby
repeated;
(b) the Aircraft is insured as required by the Agreement;
and
(c) the Lessee confirms that there have been affixed to the
Aircraft and the Engines the fireproof notices required
by the Agreement.
3. LESSOR'S CONFIRMATION The Lessor confirms to the Lessee
that, as at the time indicated above, being the time of
Delivery, the Lessor's representations and warranties
contained in Clause 2.4 of the Agreement are hereby
repeated.
<PAGE>
IN WITNESS WHEREOF Lessor and Lessee have executed this
Certificate of Acceptance on the date set forth in Clause 1 of
this Certificate.
SIGNED on behalf of
AIRCRAFT 22121, INC.
By:__________________________
Name:
Title:
SIGNED on behalf of
VANGUARD AIRLINES, INC.
By:__________________________
Name:
Title:
<PAGE>
EXHIBIT B
CERTIFICATE OF DELIVERY CONDITION
This Certificate of Delivery Condition is delivered on
July __, 1999 by Vanguard Airlines, Inc. (the "Lessee") to
Aircraft 22121, Inc. (the "Lessor") pursuant to Lease Agreement
22121, dated July 22, 1999, between the Lessor and the Lessee
(the "Agreement"). Capitalized terms used but not defined in
this Certificate of Delivery Condition shall have the meaning
given to such terms in the Agreement.
1. AIRCRAFT ACCEPTANCE: Lessee hereby confirms to Lessor that,
pursuant to the Agreement, Lessee has accepted the Boeing Model
737-230 airframe bearing manufacturer's serial number 22121 and
U.S. registration mark N123NJ, together with the two Pratt &
Whitney Model JT8D-15 engines bearing manufacturer's serial
numbers 702943 and 708372, all Parts installed on, attached to or
appurtenant to the Airframe and Engines and the Aircraft
Documents, and Lessor and Lessee agree that such Airframe,
Engines and Parts are in the condition set forth on the attached
Annex 1.
2. CONFIRMATION OF DELIVERY CONDITION: Lessee confirms to
Lessor that at the time of acceptance of the Leased Property, the
Leased Property complied in all respects with the condition
required at Delivery under Clause 4.2 and Schedule 3 of the
Agreement, except for the items (if any) listed on the attached
Annex 2 (the "Discrepancies"). Lessor and Lessee agree that the
Discrepancies (if any) shall be corrected as set forth on the
attached Annex 2.
IN WITNESS WHEREOF Lessor and Lessee have executed this
Certificate of Acceptance on the date set forth at the beginning
of this Certificate.
SIGNED on behalf of SIGNED on behalf of
AIRCRAFT 22121, INC. VANGUARD AIRLINES, INC.
By:____________________________ By:___________________________
Name: Name:
Title: Title:
<PAGE>
ANNEX 1
MAINTENANCE STATUS AT DELIVERY
DATE: July 29, 1999
AIRFRAME TIME:
Total Flight Hours: 39693
Total Cycles: 34850
AIRFRAME LIMITS:
Type of Check: C Check
Check Interval: 13 Month
Time Since Last Check: 0
ENGINE DATA:
Position: No.1 No.2
Model: JT8D-15 JT8D-15
Serial Numbers: 702943 708372
Total Flight Hours: 32084 30798
Total Cycles: 28886 30423
Flight Hours Since Last CER: 0 0
Cycles Since Last CER: 0 0
Flight Hours to Next Hard Limit: 2105 4592
Cycles to Next Hard Limit: 1757 4474
APU:
Model: GTCP85-1298
Serial Number: P-137
Total Flight Hours: 12,110
Total Cycles: 14,493
Flight Hours Since Last CER: 0
Cycles Since Last CER: 0
Flight Hours Remaining on LLPs: No LLPs
Cycles Remaining on LLPs: No LLPs
<PAGE>
LANDING GEAR LIMITS:
Position: Nose Left Right
Overhaul Interval: 20,000H 20,000H 20,000H
Time Since Overhaul: 0 0 0
Time to Next Overhaul: 20,000H 20,000H 20,000H
<PAGE>
ANNEX 2
DISCREPANCIES
DESCRIPTION OF DISCREPANCY AGREED CORRECTIVE ACTION
<PAGE>
EXHIBIT C
FORM OF CONSENT
[To be Supplied]
<PAGE>
EXHIBIT D
FORM OF LEGAL OPINION
[To be Supplied]
<PAGE>
EXHIBIT E
FORM OF LETTER OF CREDIT
[N/A]
<PAGE>
EXHIBIT F
FORM OF MONTHLY STATUS REPORT
AIRCRAFT TYPE REG. MARK SERIAL NO. MONTH ENDING
Boeing 737-230 N123NJ 22121 ...............
1. AIRCRAFT UTILIZATION:
(a) Airframe Total Flight Hours .............
(b) Airframe Total Cycles .............
(c) Airframe Flight Hours for Month .............
(d) Airframe Cycles for Month .............
(e) Airframe Flight Hours since Overhaul .............
(f) Airframe Cycles since Overhaul .............
(g) Airframe Flight Hours since C-Check .............
(h) Airframe Cycles since C-Check .............
2. POWERPLANT STATUS: NO.1 NO.2
(a) Serial Nos. of Delivered Engines 702943 708372
(b) Serial Nos. of Replacement Engines ....... .......
(if applicable)
(c) Serial Nos. of Installed Engines ....... .......
(if different from (a) or (b) above)
(d) Current Location of Delivered or ....... ........
Replacement Engines (as applicable)
(if not installed on Airframe)
<PAGE>
(e) Total Time Since New of Delivered ....... ........
or Replacement Engines (as applicable)
(f) Total Cycles Since New of Delivered ....... ........
or Replacement Engines (as applicable)
(g) Total Time Since Last Service ....... ........
(h) Total Cycles Since Last Service ....... ........
(i) Flight Hours to Limiter ....... ........
(j) Cycles to Limiter ....... .......
(k) Limiter ....... .......
(l) Total Flight Hours for the Month for ....... .......
each Delivered or Replacement Engine
(as applicable)
(m) Total Cycles for the Month for each ....... .......
Delivered or Replacement Engine
(as applicable)
(n) Serial No. of Delivered APU ........
(o) Serial No. of Replacement APU ........
(if applicable)
(p) Serial No. of Installed APU ........
(if different from (a) or (b) above)
(q) Current Location of Delivered or ........
Replacement APU (as applicable)
(if not installed on Airframe)
(r) Total Time Since New of Delivered ........
or Replacement APU (as applicable)
(s) Total Cycles Since New of Delivered ........
or Replacement APU (as applicable)
<PAGE>
(t) Total Hours for the Month for ........
Delivered or Replacement APU
(as applicable)
(u) Total Cycles for the Month for ........
Delivered or Replacement APU
(as applicable)
3. ROUTINE CHECKS / A.D. AND S.B. COMPLIANCE:
(a) Routine Checks (A and above) performed during Month:
(b) Airworthiness Directives complied with during Month:
(c) Service Bulletins complied with during Month:
4. AIRCRAFT DAMAGE OR ENGINE CHANGES:
Details of any repairs carried out to the Aircraft beyond
SRM limits and Engine changes, giving reasons for repair or
change:
5. UPCOMING MAINTENANCE CHECKS
(a) Maintenance Checks (C segment and above) scheduled or
expected to be performed on the Airframe during the next 12
months:
(b) Scheduled shop visits or heavy maintenance visits scheduled
or expected to be performed on the Engines during the next
12 months:
(c) Overhauls, or replacements scheduled or expected to be
performed on the APU or Landing Gear during the next 12
months:
Date: ___________, ____ CERTIFIED FOR AND ON BEHALF OF
VANGUARD AIRLINES, INC.
By:_______________________________
Name:
Title:
<PAGE>
EXHIBIT G
CERTIFICATE OF REDELIVERY
This Certificate of Redelivery is delivered by Aircraft
22121, Inc. (the "Lessor") to Vanguard Airlines, Inc. (the
"Lessee") pursuant to Lease Agreement 22121, dated July 22, 1999,
between the Lessor and the Lessee (the "Agreement"). Capitalized
terms used but not defined in this Certificate of Acceptance
shall have the meaning given to such terms in the Agreement.
1. DETAILS OF ACCEPTANCE
The Lessor hereby confirms to the Lessee that the Lessor has
at __:__ _.m. G.M.T. on this _____ day of _________, at
__________, ________ accepted for redelivery the following,
in accordance with the provisions of the Agreement.
(a) one Boeing Model 737-230 airframe, bearing
manufacturer's serial number 22121 and U.S.
registration mark N123NJ;
(b) two Pratt & Whitney Model JT8D-15 engines, bearing
manufacturer's serial numbers [______] and [______];
(c) all Parts installed on, attached to or appurtenant to
the Airframe and Engines; and
(d) the Aircraft Documents specified in Schedule 1 - Part 2
of the Agreement.
2. LESSOR'S CONFIRMATION The Lessee confirms to the Lessor
that as at the time indicated above the Lessor is satisfied
that the Aircraft is in the condition required Clause 12 and
Schedule 4 of the Agreement and has been redelivered to the
Lessor in accordance with the Agreement.
IN WITNESS WHEREOF, Lessor has executed this Certificate of
Redelivery on the date set forth in Clause 1 of this Certificate
of Redelivery.
AIRCRAFT 22121, INC.
By:___________________________
Name:
Title:
_________________________________________________________________
THIS LEASE AGREEMENT HAS BEEN EXECUTED IN SEVERAL COUNTERPARTS.
TO THE EXTENT, IF ANY, THAT THIS LEASE AGREEMENT CONSTITUTES
CHATTEL PAPER (AS SUCH TERM IS DEFINED IN THE UNIFORM COMMERCIAL
CODE AS IN EFFECT IN ANY APPLICABLE JURISDICTION), NO SECURITY
INTEREST IN THIS LEASE AGREEMENT MAY BE CREATED THROUGH THE
TRANSFER OR POSSESSION OF ANY COUNTERPART OTHER THAN THE ORIGINAL
EXECUTED COUNTERPART CONTAINING THE RECEIPT EXECUTED BY LESSOR
OR, IF LESSOR HAS ASSIGNED ITS RIGHTS TO A THIRD PARTY IN
ACCORDANCE WITH THIS LEASE AGREEMENT, SUCH
THIRD PARTY ON THE SIGNATURE PAGE OF THIS LEASE AGREEMENT.
________________________________________________________________
DATED: August __, 1999
AIRCRAFT 22120, INC.
(Lessor)
- and -
VANGUARD AIRLINES, INC.
(Lessee)
___________________________________
LEASE AGREEMENT 22120
- relating to -
Boeing 737-230 Aircraft
Manufacturers Serial No: 22120
U.S. Registration Mark N122NJ
_____________________________________
FELTMAN, KARESH, MAJOR & FARBMAN,
Limited Liability Partnership
Carnegie Hall Tower
152 West 57th Street
New York, New York 10019
<PAGE>
TABLE OF CONTENTS
CLAUSE PAGE
1. DEFINITIONS and INTERPRETATION . . . . . . . . . . . . . . . . 1
1.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Interpretation . . . . . . . . . . . . . . . . . . . . . 19
2. REPRESENTATIONS and WARRANTIES . . . . . . . . . . . . . . . . 19
2.1 Lessee's Representations and Warranties . . . . . . . . 19
2.2 Lessee's Further Representations and Warranties . . . . 21
2.3 Repetition . . . . . . . . . . . . . . . . . . . . . . . 22
2.4 Lessor's Representations and Warranties. . . . . . . . . 22
2.5 Repetition . . . . . . . . . . . . . . . . . . . . . . . 23
3. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . 24
3.1 Lessor's Documentary Conditions Precedent. . . . . . . . 24
3.2 Lessor's Other Conditions Precedent. . . . . . . . . . . 25
3.3 Lessor's Waiver. . . . . . . . . . . . . . . . . . . . . 25
3.4 Lessee's Conditions Precedent. . . . . . . . . . . . . . 25
3.5 Lessee's Waiver. . . . . . . . . . . . . . . . . . . . . 26
4. COMMENCEMENT. . . . . . . . . . . . . . . . . . . . . . . . . .27
4.1 Leasing . . . . . . . . . . . . . . . . . . . . . . . . .27
4.2 Delivery. . . . . . . . . . . . . . . . . . . . . . . . .27
4.3 Delayed Delivery . . . . . . . . . . . . . . . . . . . .29
4.4 Acceptance and Risk. . . . .30
5. PAYMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . .30
5.1 Security Deposit; Letter of Credit . . . . . . . . . . .30
5.2 Rental Periods . . . . . . . . . . . . . . . . . . . . .32
5.3 Basic Rent . . . . . . . . . . . . . . . . . . . . . . .32
5.4 Additional Rent . . . . . . . . . . . . . . . . . . . . .33
5.5 Lessor's Moneys . . . . . . . . . . . . . . . . . . . . .34
5.6 Payments . . . . . . . . . . . . . . . . . . . . . . . .34
5.7 Gross-up . . . . . . . . . . . . . . . . . . . . . . . .35
5.8 Taxation . . . . . . . . . . . . . . . . . . . . . . . .36
5.9 Information . . . . . . . . . . . . . . . . . . . . . . .36
5.10 Taxation of Indemnity Payments . . . . . . . . . . . . .37
5.11 Default Interest . . . . . . . . . . . . . . . . . . . .37
5.12 Contest . . . . . . . . . . . . . . . . . . . . . . . . .38
5.13 Absolute . . . . . . . . . . . . . . . . . . . . . . . .39
<PAGE>
6. MANUFACTURER'S WARRANTIES . . . . . . . . . . . . . . . . . . .40
6.1 Assignment . . . . . . . . . . . . . . . . . . . . . . .40
6.2 Proceeds . . . . . . . . . . . . . . . . . . . . . . . .40
6.3 Parts . . . . . . . . . . . . . . . . . . . . . . . . . .41
6.4 Agreement . . . . . . . . . . . . . . . . . . . . . . . .41
7. LESSOR'S COVENANTS and DISCLAIMERS. . . . . . . . . . . . . . .42
7.1 Quiet Enjoyment . . . . . . . . . . . . . . . . . . . . .42
7.2 Lessor's Maintenance Contribution . . . . . . . . . . . .42
7.3 Intentionally Omitted . . . . . . . . . . . . . . . . . .45
7.4 Lessor's AD Cost Sharing Contribution . . . . . . . . . .45
7.5 Registration and Filings . . . . . . . . . . . . . . . .46
7.6 Agreed Maintenance Performers . . . . . . . . . . . . . .46
7.7 Exclusion . . . . . . . . . . . . . . . . . . . . . . . .46
7.8 Lessee's Waiver . . . . . . . . . . . . . . . . . . . . .47
7.9 Lessee's Confirmation . . . . . . . . . . . . . . . . . .47
8. LESSEE'S COVENANTS. . . . . . . . . . . . . . . . . . . . . . .47
8.1 Duration. . . . . . . . . . . . . . . . . . . . . . . . .47
8.2 Information . . . . . . . . . . . . . . . . . . . . . . .48
8.3 Lawful and Safe Operation . . . . . . . . . . . . . . . .50
8.4 Taxes and Other Charges . . . . . . . . . . . . . . . . .52
8.5 Sub-Leasing . . . . . . . . . . . . . . . . . . . . . . .52
8.6 Inspection . . . . . . . . . . . . . . . . . . . . . . .54
8.7 Protection of Title . . . . . . . . . . . . . . . . . . .55
8.8 General . . . . . . . . . . . . . . . . . . . . . . . . .56
8.9 Records . . . . . . . . . . . . . . . . . . . . . . . . .57
8.10 Registration and Filings . . . . . . . . . . . . . . . .57
8.11 Maintenance and Repair. . . . . . . . . . . . . . . . . .58
8.12 Removal of Engines and Parts. . . . . . . . . . . . . . .59
8.13 Installation of Engines and Parts . . . . . . . . . . . .60
8.14 Non-Installed Engines and Parts . . . . . . . . . . . . .62
8.15 Pooling of Engines and Parts . . . . . . . . . . . . . .63
8.16 Equipment Changes . . . . . . . . . . . . . . . . . . . .63
8.17 Title to Engines and Parts. . . . . . . . . . . . . . . .64
8.18 Third Parties . . . . . . . . . . . . . . . . . . . . . .65
8.19 Non-Discrimination. . . . . . . . . . . . . . . . . . . .65
9. INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . .65
9.1 Insurances . . . . . . . . . . . . . . . . . . . . . . .65
9.2 Requirements . . . . . . . . . . . . . . . . . . . . . .66
9.3 Insurance Covenants . . . . . . . . . . . . . . . . . . .66
9.4 Failure to Insure . . . . . . . . . . . . . . . . . . . .68
<PAGE>
9.5 Continuing Indemnity. . . . . . . . . . . . . . . . . . .68
9.6 Application of Insurance Proceeds . . . . . . . . . . . .69
10. INDEMNITY . . . . . . . . . . . . . . . . . . . . . . . . . . .70
10.1 General . . . . . . . . . . . . . . . . . . . . . . . . .70
10.2 Mitigation . . . . . . . . . . . . . . . . . . . . . . .71
10.3 Duration . . . . . . . . . . . . . . . . . . . . . . . .72
11. EVENTS OF LOSS. . . . . . . . . . . . . . . . . . . . . . . . .72
11.1 Total Loss. . . . . . . . . . . . . . . . . . . . . . . .72
11.2 Engine Loss . . . . . . . . . . . . . . . . . . . . . . .73
11.3 Requisition . . . . . . . . . . . . . . . . . . . . . . .74
12. RETURN OF AIRCRAFT. . . . . . . . . . . . . . . . . . . . . . .75
12.1 Redelivery . . . . . . . . . . . . . . . . . . . . . . .75
12.2 Final Checks. . . . . . . . . . . . . . . . . . . . . . .75
12.3 Final Inspection . . . . . . . . . . . . . . . . . . . .76
12.4 Non-Compliance. . . . . . . . . . . . . . . . . . . . . .77
12.5 Export Documentation . . . . . . . . . . . . . . . . . .77
12.6 Acknowledgment . . . . . . . . . . . . . . . . . . . . .77
12.7 Maintenance Program . . . . . . . . . . . . . . . . . . .78
12.8 Storage . . . . . . . . . . . . . . . . . . . . . . . . .78
13. DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . .78
13.1 Events . . . . . . . . . . . . . . . . . . . . . . . . .78
13.2 Rights. . . . . . . . . . . . . . . . . . . . . . . . . .83
13.3 Export. . . . . . . . . . . . . . . . . . . . . . . . . .83
13.4 Default Payments . . . . . . . . . . . . . . . . . . . .84
13.5 Waiver of Certain Article 2A Rights . . . . . . . . . . .85
14. ASSIGNMENT and TRANSFER . . . . . . . . . . . . . . . . . . . .85
14.1 No Assignment by Lessee . . . . . . . . . . . . . . . . .85
14.2 Lessor Assignment . . . . . . . . . . . . . . . . . . . .85
14.3 Grants of Security Interests . . . . . . . . . . . . . .88
14.4 Sale and Leaseback by Lessor . . . . . . . . . . . . . .90
14.5 Further Acknowledgments . . . . . . . . . . . . . . . . .90
14.6 Certain Protections for Lessee's Benefit . . . . . . . .90
15. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . .91
15.1 Waivers, Remedies Cumulative . . . . . . . . . . . . . .91
15.2 Delegation . . . . . . . . . . . . . . . . . . . . . . .91
15.3 Appropriation . . . . . . . . . . . . . . . . . . . . . .91
15.4 Currency Indemnity. . . . . . . . . . . . . . . . . . . .91
15.5 Payment by the Lessor . . . . . . . . . . . . . . . . . .92
<PAGE>
15.6 Severability. . . . . . . . . . . . . . . . . . . . . . .92
15.7 Remedy. . . . . . . . . . . . . . . . . . . . . . . . . .92
15.8 Expenses. . . . . . . . . . . . . . . . . . . . . . . . .92
15.9 Time of Essence . . . . . . . . . . . . . . . . . . . . .93
15.10 Notices . . . . . . . . . . . . . . . . . . . . . . . . .93
15.11 Law and Jurisdiction. . . . . . . . . . . . . . . . . . .94
15.12 Sole and Entire Agreement . . . . . . . . . . . . . . . .95
15.13 Indemnities . . . . . . . . . . . . . . . . . . . . . . .95
15.14 Counterparts . . . . . . . . . . . . . . . . . . . . . .95
15.15 Confidentiality . . . . . . . . . . . . . . . . . . . . .95
<PAGE>
TABLE OF CONTENTS
CLAUSE PAGE
SCHEDULES
1. Basic Rent and Other Terms. . . . . . . . . . . . . . . . . . .97
2. Aircraft Specification. . . . . . . . . . . . . . . . . . . . .99
3. Operating Condition at Delivery . . . . . . . . . . . . . . . 106
4. Operating Condition at Redelivery . . . . . . . . . . . . . . 111
5. Insurance Requirements . . . . . . . . . . . . . . . . . . . 116
EXHIBITS
A. Form of Certificate of Acceptance . . . . . . . . . . . . . . 121
B. Form of Certificate of Delivery Condition . . . . . . . . . . 123
C. Form of Consent . . . . . . . . . . . . . . . . . . . . . . . 127
D. Form of Legal Opinion . . . . . . . . . . . . . . . . . . . . 128
E. Form of Letter of Credit. . . . . . . . . . . . . . . . . . . 129
F. Form of Monthly Status Report . . . . . . . . . . . . . . . . 130
G. Form of Certificate of Redelivery . . . . . . . . . . . . . . 133
<PAGE>
THIS LEASE AGREEMENT 22120 is made the____ day of August, 1999
BETWEEN:
(1) AIRCRAFT 22120, INC., a Delaware corporation having its
principal place of business at c/o Unicapital Air Group,
Inc., 1900 Summit Tower Blvd., Suite 860, Orlando, Florida
32810 (the "LESSOR"), and
(2) VANGUARD AIRLINES, INC., a company organized and existing
under the laws of the State of Delaware having its principal
place of business at 533 Mexico City Avenue, Kansas City
International Airport, Kansas City, Missouri 64153 (the
"LESSEE").
WHEREAS:
(A) Pursuant to a Sale Agreement, dated as of December 23, 1997,
between the Previous Operator, as seller, and NSJ
Corporation of Florida, Inc., as buyer ("NSJ-Florida"), as
assigned by the Previous Operator to the Previous Owner and
by NSJ-Florida to Lessor pursuant to the Assignment,
Assumption and Consent Agreement, dated as of July 16, 1999,
Lessor has agreed to purchase the Leased Property from the
Previous Owner on or before the Delivery Date.
(B) Lessor wishes to lease the Leased Property to the Lessee,
and Lessee agrees to lease the Leased Property from the
Lessor, with effect immediately from the purchase of the
Aircraft upon and subject to the covenants, terms and
conditions set out in this Agreement.
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS and INTERPRETATION
1.1 DEFINITIONS
In this Agreement the following expressions shall, unless
the context otherwise requires, have the following
respective meanings:
ACTUAL COST as it applies to any maintenance
work on the Aircraft, means the
actual cost of replacement parts
plus the cost of the associated
labor at Lessee's in-house labor
rates (if the work is performed by
Lessee) or at third party costs
charged to Lessee (if the work is
performed by third parties) and
shall in no event include late
charges, mark-ups, interest or
other similar amounts.
<PAGE>
ADDITIONAL RENT collectively, Airframe Additional
Rent, APU Additional Rent, Engine
Additional Rent and Landing Gear
Additional Rent.
AFFILIATE in relation to any Person, any
other Person controlled directly or
indirectly by that Person, any
other Person that controls directly
or indirectly that Person or any
other Person under common control
with that Person. For this purpose
"control" of any Person means
ownership of a majority of the
voting power of such Person.
AGREED MAINTENANCE
PERFORMER the Lessee or any other reputable
maintenance organization that is
(i) experienced in maintaining
aircraft and/or engines of the same
type as the Aircraft and the
Engines, (ii) duly certificated by
the FAA under FAR Part 145, and
(iii) not objected to by Lessor
pursuant to Clause 7.6.
AGREED MAINTENANCE
PROGRAM the Lessee's current Maintenance
Program, which shall at all times
be in compliance with the
Manufacturer's MPD and the Engine
Manufacturer's MPD, as the same may
be amended from time to time in
accordance with this Agreement.
AGREED VALUE the amount set forth on Schedule 1.
AIRCRAFT the aircraft described in Part l of
Schedule 2 (which term includes,
where the context admits, a
separate reference to all Engines
and Parts).
AIRCRAFT DOCUMENTS the documents, data and records
identified in Part 2 of Schedule 2
and all additions, renewals,
revisions and replacements from
time to time made in accordance
with this Agreement.
AIRFRAME the Aircraft, excluding the Engines
and the Aircraft Documents.
AIRFRAME ADDITIONAL
RENT as defined in Clause 5.4(a)(i).
AIRFRAME ADDITIONAL
RENT RATE the amount set forth in Schedule 1.
AIRFRAME REIMBURSABLE
EXPENSES as defined in Clause 7.2(a)(i).
<PAGE>
APPLICABLE LAW all applicable (i) laws, treaties
and international agreements of any
national government, (ii) laws of
any state, province, territory,
locality or other political
subdivision of a national
government, and (iii) rules,
regulations, judgments, decrees,
orders, injunctions, writs,
directives, licenses and permits of
any Government Entity or
arbitration authority.
APPRAISAL PROCEDURE with respect to any amount to be
determined, the amount mutually
agreed by Lessor and Lessee or, if
Lessor and Lessee are unable to
agree upon any such amount to be
determined, the average of the
amounts determined by three
FAA-approved service centers in the
continental United States, one such
service center appointed by Lessor,
one by Lessee and one by their
appointed service centers, except
that if any party fails to appoint
a service center the Manufacturer
or the Engine Manufacturer
(whichever is appropriate) shall be
deemed appointed.
APU (i) the auxiliary power unit listed
in Schedule 2, (ii) any and all
Parts, so long as such Parts are
incorporated in, installed on or
attached to such auxiliary power
unit or so long as title to such
Parts is vested in the Lessor in
accordance with the terms of Clause
8.17(b) after removal from such
auxiliary power unit, and
(iii) insofar as the same belong to
Lessor, all substitutions,
replacements or renewals from time
to time made in or to such
auxiliary power unit or to any of
the Parts referred to in clause
(ii) above, as required or
permitted under this Agreement.
APU ADDITIONAL RENT as defined in Clause 5.4(a)(iv).
APU ADDITIONAL RENT
RATE the amount set forth in Schedule 1.
APU REIMBURSABLE
EXPENSES as defined in Clause 7.2(d)(i).
ASSIGNMENT the Assignment of Lease Agreement,
dated the Delivery Date, between
Lessor and Mortgagee, and any
present or future assignment by the
Lessor in <PAGE> favor of any Financing
Party of the Lessor's rights under
this Agreement as security for its
obligations to a Financing Party.
AVIATION AUTHORITY the FAA or, if the State of
Registration ceases to be the
United States of America, the
authority and/or Government Entity
and/or agency which, under the laws
of the State of Registration, from
time to time (i) has control or
supervision of civil aviation; or
(ii) has jurisdiction over
registration, airworthiness or
operation of the Aircraft.
BASIC RENT all amounts payable pursuant to
Clause 5.3.
BASIC RENT AMOUNT the amount set forth in Schedule 1.
BUSINESS DAY a day (other than a Saturday or
Sunday) on which business of the
nature required by this Agreement
is carried out in Orlando, Florida
and the city in which Lessee's
office listed in Clause 15.10(b) is
located or, where used in relation
to payments, on which banks are
open for business in New York, New
York.
C-CHECK a maintenance check on the Airframe
under the Agreed Maintenance
Program designated as a "C" check
and consisting of full and complete
zonal, systems and structural check
including the corresponding lower
checks ("A" and "B" or equivalent)
and any other maintenance and
inspections tasks that are a part
of such checks, all in accordance
with the Agreed Maintenance
Program, or if the Agreed
Maintenance Program changes and no
longer refers to a full and
complete zonal, systems and
structural block "C" check, then a
check consisting of those items of
maintenance characterized by the
MPD and best industry practice as a
"C" check (or its equivalent), but
in any event not including repairs
arising as the result of
operational or maintenance
mishandling or accidental damage.
CER an engine refurbishment, including
with respect to any Engine the
complete visual inspection and <PAGE>
repair as necessary of required
modules of the Engine in an engine
repair/overhaul station, including
complete or partial disassembly,
complete or partial visual
inspection, de-blading of LLPs as
required, visual inspection of all
LLPs, verification that all snap
diameters on LLPs are within
limits, inspection of all blades
for proper chord dimensions and
cracking, repair or replacement of
all blades below minimums,
inspection and repair of stators as
necessary, blade-up of LLPs using
new lock plates, assembly of rotors
in the turbine, balance of all
rotors, and installation of rotors
in the Engine.
CERTIFICATE OF
ACCEPTANCE a certificate in the form attached
as Exhibit A to be completed and
executed by Lessor and Lessee on
Delivery.
CERTIFICATE OF
DELIVERY CONDITION a certificate in the form attached
as Exhibit B to be completed and
executed by Lessor and Lessee on
Delivery.
CERTIFICATE OF
REDELIVERY a certificate in the form attached
as Exhibit G to be completed and
executed by Lessor upon redelivery
of the Aircraft and Aircraft
Documents in accordance with this
Agreement.
CONSENT the Lessee's Acknowledgment of and
Consent to Assignment of Lease,
dated the Delivery Date, between
Lessor, Lessee and Mortgagee in the
form attached as Exhibit C pursuant
to which, inter alia, Lessee
consents to the Assignment and
Mortgagee covenants to preserve
Lessee's quiet enjoyment.
COOPESA The Self-Managed Cooperative of
Aero Industrial Services R.L.
CPCP Lessee's Corrosion Prevention and
Control Program under the Agreed
Maintenance Program.
CREDIT AGREEMENT the Secured Loan Agreement, dated
as of August___, 1999, between
Lender and Lessor.
CYCLE one take-off and landing of an
airframe.
<PAGE>
DAMAGE NOTIFICATION
THRESHOLD the amount set forth in Schedule 1.
DEFAULT any Event of Default and any event
which with the giving of notice,
lapse of time or fulfilment of any
other condition or any combination
of the foregoing would constitute
an Event of Default.
DEFAULT RATE at any time and from time to time,
3.0% plus the prime or base
commercial lending rate as
announced (i) if the Mortgagee is a
bank or trust company, by the
Mortgagee at its principal banking
office in New York City, New York,
or (ii) if the Mortgagee is not a
bank or trust company, by Citibank,
N.A., in either case compounded
monthly and calculated on the basis
of the actual number of days
elapsed and on a 360 day year.
DELIVERY the delivery of the Aircraft to the
Lessee in accordance with the terms
of this Agreement.
DELIVERY DATE the date on which Delivery takes
place, which shall be the Scheduled
Delivery Date or such other date
notified by Lessor to Lessee in
accordance with the provisions of
this Agreement, including Clauses
4.2(e) and 4.3.
DELIVERY LOCATION Coopesa in San Jose, Costa Rica.
DOLLARS AND $ the lawful currency of the United
States of America.
ENGINE whether or not installed on the
Aircraft:
(a) each engine, including the
Spare Engine, of the
manufacture, model and serial
number specified in Part 1 of
Schedule 2 and having 750 or
more rated take-off
horsepower, title to which
shall belong to the Lessor; or
(b) any engine which replaces that
engine, title to which passes
to the Lessor in accordance
with Clause 8.17(d);
<PAGE>
and in each case includes all
modules and Parts from time to time
belonging to, installed in or
appurtenant to that engine.
ENGINE ADDITIONAL RENT as defined in Clause 5.4(a)(ii).
ENGINE ADDITIONAL RENT
RATE the amount set forth in Schedule 1.
ENGINE LOSS the occurrence, with respect to an
Engine, of one of the events set
forth in clauses (a) through (d) of
the definition of "Total Loss" as
if references to the "Airframe"
were to such "Engine".
ENGINE LOSS DATE the relevant date determined in
accordance with the definition of
"Total Loss Date" as if that
definition applied to an Engine
Loss.
ENGINE MANUFACTURER the Pratt & Whitney Division of
United Technologies Corporation.
ENGINE REIMBURSABLE
EXPENSES as defined in Clause 7.2(b)(i).
ENGINE SHOP VISIT a shop visit requiring disassembly
of an Engine (but excluding for
this purpose any removal,
installation, maintenance and
repair of "Quick Engine Change"
kits) and during which there shall
be performed a hot section
restoration or repair or a cold
section restoration or repair or a
replacement of LLPs.
EQUIPMENT CHANGE as defined in Clause 8.16(a).
EVENT OF DEFAULT an event specified in Clause 13.1.
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, serious
accident, epidemic, quarantine
restriction, import restriction,
any act of government, governmental
priority, allocation, regulation or
order affecting directly or
indirectly, the Aircraft, any
manufacturer, Lessor or any
materials or facilities, strike or
labor dispute causing cessation,
slowdown or interruption of work,
inability after due and timely
diligence to <PAGE> procure equipment,
data or materials from
manufacturers, suppliers, any
existing owner, seller or lessee in
a timely manner, damage,
destruction or loss, adverse
weather conditions preventing any
services, inspections or flights of
the Aircraft or any other cause to
the extent that such cause is
beyond the control of Lessor,
whether above mentioned or not and
whether or not similar to the
foregoing.
EXPIRY DATE the Scheduled Expiry Date or any
other date on which:
(a) the Aircraft has been
redelivered in accordance with
this Agreement and all
obligations of Lessee have
been satisfied; or
(b) the Lessor receives the Agreed
Value following a Total Loss
and any other amounts then due
and owing in accordance with
this Agreement.
FAA the Federal Aviation Administration
of the U.S. Department of
Transportation, or any successor
Government Entity succeeding to the
functions thereof.
FARs the Federal Aviation Regulations
for the time being in force, issued
by the FAA pursuant to the Federal
Aviation Law and published in Title
14 of the Code of Federal
Regulations.
FEDERAL AVIATION LAW Title 49 of the United States Code,
as amended, or any successor
statutory provisions and the
regulations promulgated under such
provisions.
FINANCIAL INDEBTEDNESS any indebtedness in respect of:
(a) moneys borrowed;
(b) any liability under any
debenture, bond, note, loan
stock, acceptance credit,
documentary credit or other
security;
<PAGE>
(c) the acquisition cost of any
asset to the extent payable
before or after the time of
acquisition or possession; or
(d) the capitalized value
(determined in accordance with
accounting practices generally
accepted in the United States
of America) of obligations
under finance leases; or
(e) any guarantee, indemnity or
similar assurance against
financial loss of any Person
in respect of the above.
FINANCING PARTIES collectively (i) Lender, (ii)
Mortgagee, (iii) any Additional
Mortgagee, (iv) any Person that
lends money to Lessor and for whom
an Additional Mortgagee holds a
Security Interest in the Leased
Property, and (v) the successors
and permitted assigns of such
Persons.
FLIGHT HOUR each hour or part thereof (rounded
up to one decimal place) elapsing
from the moment the wheels of the
Airframe leave the ground on take
off until the moment the wheels of
the Airframe next touch the ground.
GAAP generally accepted accounting
principles as in effect from time
to time and, subject to changes in
such principles from time to time,
consistently applied in accordance
with the past practices of a
Person.
GOVERNMENT ENTITY (a) any national, state or local
government, political
subdivision thereof or local
jurisdiction therein;
(b) any board, commission,
department, division,
instrumentality, court, agency
or political subdivision
thereof; 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 <PAGE> in whose
activities any of the above is
a participant.
HEAVY CHECK the maintenance checks under the
Agreed Maintenance Program
designated as "Q1" and "Q2", or any
comparable major airframe overhaul
under any other or amended
maintenance program.
IATA the International Air Transport
Association.
INDEMNITEES Lessor, each of the Financing
Parties, the respective successors
and assigns of such Persons and the
shareholders, directors, officers,
agents and employees of such
Persons.
INSURANCES as defined in Clause 9.1.
LANDING GEAR the landing gear assembly of the
Aircraft excluding the wheels and
brake units.
LANDING GEAR
ADDITIONAL RENT as defined in Clause 5.4(a)(iii).
LANDING GEAR
ADDITIONAL RENT the amount set forth in Schedule 1.
RATE
LANDING GEAR
REIMBURSABLE
EXPENSES as defined in Clause 7.2(c)(i).
LEASED PROPERTY the Aircraft and the Aircraft
Documents.
LENDER FINOVA Capital Corporation and its
successors and assigns as "Lender"
under the Credit Agreement.
LESSEE INSTALLED PART a Part installed on the Aircraft
after Delivery not in replacement
for any Part and not required under
the FARs on the Aircraft, title to
which is held by Lessee (and which
may be subject to a Security
Interest in favor of an unrelated
third party) or title to which is
held by an unrelated third party
and such Part is leased or
conditionally sold to Lessee.
LESSOR LIEN (a) the Mortgage and any other
Security Interest whatever
from time to time created by
or <PAGE> arising through the Lessor
and/or any Financing Party in
connection with the financing
or refinancing of the
Aircraft;
(b) any other Security Interest in
respect of the Aircraft that
results from acts or omissions
of, or claims against, the
Lessor and/or any Financing
Party not related to the
operation of the Aircraft or
the transactions contemplated
by or permitted under this
Agreement; and
(c) liens in respect of the
Aircraft for Non-Indemnified
Taxes.
LETTER OF CREDIT an irrevocable standby letter of
credit, in the form set out in
Exhibit E or otherwise in form and
substance reasonably satisfactory
to Lessor, to be issued (at the
Lessee's option) in favor of Lessor
(or, if designated by Lessor, in
favor of Mortgagee) by a bank
reasonably acceptable to Lessor and
Mortgagee for the payment of the
Security Deposit.
LLPs life limited Parts.
MAINTENANCE PROGRAM an Aviation Authority approved
maintenance program for the
Aircraft encompassing scheduled
maintenance, condition monitored
maintenance and/or on-condition
maintenance of Airframe, Engines
and Parts, including servicing,
testing, preventative maintenance,
repairs, structural inspections,
system checks, overhauls, approved
modifications, service bulletins,
engineering orders, airworthiness
directives, corrosion control,
inspections and treatments.
MAJOR CHECKS any Heavy Check, C-Check, "C"
check, multiple or phase "C" check,
"D" check or annual heavy
maintenance visit or segment
thereof suggested for commercial
aircraft of the same model as the
Aircraft by the Manufacturer
(however denominated in the Agreed
Maintenance Program).
<PAGE>
MANUFACTURER The Boeing Company, a Delaware
corporation with a place of
business in Seattle, Washington.
MINIMUM LIABILITY
COVERAGE the amount set forth on Schedule 1.
MORTGAGE the First Priority Aircraft Chattel
Mortgage and Security Agreement,
dated the Delivery Date, between
Lessor, as debtor, and Mortgagee,
as secured party, whereby Lessor
has granted to Mortgagee a first
priority security interest in the
Aircraft and its right, title and
interest in the Operative
Documents.
MORTGAGEE FINOVA Capital Corporation and its
successors and assigns as mortgagee
under the Mortgage.
MPD for any manufacturer, such
manufacturer's Maintenance Planning
Document.
NON-INDEMNIFIED
TAXES (a) Taxes imposed as a direct
result of activities of any
Tax Indemnitee in the
jurisdictions imposing the
liability unrelated to such
Tax Indemnitee's dealings with
Lessee pursuant to the
Operative Documents or to the
transactions contemplated by
the Operative Documents or the
operation of the Aircraft by
Lessee;
(b) Taxes on or measured by the
income, profits, gains,
capital or net worth
(including minimum taxes,
withholding taxes and taxes on
or measured by any items of
tax preference) and any doing
business or franchise taxes,
and interest, additions to
tax, penalties or other
charges in respect thereof,
imposed on any Tax Indemnitee
(i) by any Federal Government
Entity in the United States of
America, (ii) by any
Government Entity in the
jurisdictions where such Tax
Indemnitee is incorporated,
formed or organized or has its
principal place of business,
(iii) by any state or local
Government Entity in the
United States of America in
which such Tax Indemnitee has
a nexus as a result of
activities other than <PAGE> those
contemplated by the Operative
Documents, or (iv) by any
Government Entity in any other
jurisdiction where such Tax
Indemnitee is liable for such
Taxes in the absence of the
transactions contemplated by
this Agreement;
(c) Taxes imposed with respect to
any period ending or event
occurring before the date of
this Agreement or any period
commencing or event occurring
after the Expiry Date;
(d) Taxes imposed as a direct
result of the sale, financing
or other disposition or
assignment of the Aircraft, or
any interest in any trust or
other entity that holds a
direct or indirect interest in
the Aircraft, unless such sale
or disposition occurs as a
consequence of an Event of
Default;
(e) Taxes imposed by a taxing
jurisdiction for a particular
tax period in which none of
the following is true for that
tax period: (i) the
operation, registration,
location, presence or use of
the Aircraft, the Airframe,
any Engine or any Part
thereof in such jurisdiction,
(ii) the place of
incorporation, commercial
domicile or other presence in
such jurisdiction of the
Lessee, any sublessee or any
user of or Person in
possession of the Aircraft,
the Airframe, any Engine or
any Part thereof in such
jurisdiction, or (iii) any
payments made under this
Agreement and related
documents being made from such
jurisdiction;
(f) Taxes to the extent caused by
the gross negligence or
willful misconduct of any Tax
Indemnitee or the breach by
any Tax Indemnitee of any of
their obligations under the
Operative Documents;
(g) Taxes to the extent caused by
a failure by any Tax
Indemnitee to furnish in a
timely <PAGE> manner notice or
information which it is
required to furnish to Lessee
by the terms of this
Agreement;
(h) any Taxes imposed on or with
respect to a transferee or
assignee of the Aircraft or
any interest therein to the
extent that, under Applicable
Law in effect at the time of
the transfer or assignment,
such Taxes would not have been
imposed on or with respect to
the transferor or assignor;
and
(i) any Taxes resulting from or
attributable to a Lessor Lien.
OPERATIVE DOCUMENTS this Agreement, the Certificate of
Acceptance, the Certificate of
Delivery Condition and the Consent.
PART whether or not installed on the
Aircraft:
(a) any component, furnishing or
equipment (other than a
complete Engine) furnished
with, installed on or
appurtenant to the Airframe
and Engines on Delivery; and
(b) any other component,
furnishing or equipment (other
than a complete Engine) title
to which has, or should have,
passed to the Lessor pursuant
to the Sale Agreement or
Clause_8.17(b),
but excludes any such items title
to which has, or should have,
passed to Lessee pursuant to
Clause_8.17(c) and any Lessee
Installed Part.
PERMITTED LIEN (a) any lien for Taxes not
assessed or, if assessed, not
yet due and payable, or being
contested in good faith by
appropriate proceedings;
(b) any lien of a repairer,
mechanic, carrier, hangar
keeper, unpaid seller or other
similar lien arising in the
ordinary course of business or
by operation of law in respect
of obligations which are not
overdue in <PAGE> accordance with
Applicable Law (or, if
applicable, generally accepted
accounting principles and
practices in the relevant
jurisdiction) or are being
contested in good faith by
appropriate proceedings; and
(c) any Lessor Lien;
but only if, in the case of (a) and
(b): (i) adequate reserves have
been provided by Lessee for the
payment of the Taxes or obligations
in accordance with generally
accounting principles and practices
in the relevant jurisdiction; and
(ii) such proceedings, or the
continued existence of the lien, do
not give rise to any reasonable
likelihood of the sale, forfeiture
or other loss of the Aircraft or
any interest therein or of criminal
liability on the Lessor or any
Financing Party.
PERSON any individual, corporation,
partnership, limited liability
company, limited liability
partnership, joint venture,
association, joint stock company,
trust, unincorporated organization
or Government Entity.
PREVIOUS OPERATOR Deutsche Lufthansa
Aktiengesellschaft.
PREVIOUS OWNER First Security Bank, National
Association, as trustee f/b/o the
Previous Operator
REDELIVERY LOCATION Kansas City International Airport
or any other location agreed by
Lessor and Lessee.
REIMBURSABLE
EXPENSES collectively, Airframe Reimbursable
Expenses, APU Reimbursable
Expenses, Engine Reimbursable
Expenses and Landing Gear
Reimbursable Expenses.
RENT collectively, all Basic Rent,
Additional Rent and Supplemental
Rent.
RENTAL PERIOD each period ascertained in
accordance with Clause 5.2.
<PAGE>
RENT DATE the Delivery Date and the
corresponding day of each calendar
month during the Term or, for any
calendar month that does not have a
corresponding day, the last day of
such calendar month.
SCHEDULED DELIVERY
DATE August ___, 1999.
SPARE ENGINE the Engine bearing manufacturer's
serial number 702999.
SCHEDULED EXPIRY
DATE the fifth anniversary of the
Delivery Date.
SECURITY DEPOSIT the amount set forth on Schedule 1.
SECURITY INTEREST any mortgage, charge, pledge, lien,
assignment, hypothecation, right of
set-off, or any agreement or
arrangement having the effect of
creating a security interest.
SPECIAL FAA COUNSEL McAfee & Taft of Oklahoma City,
Oklahoma.
SRM the Manufacturer's structural
repair manual.
STATE OF
INCORPORATION State of Delaware.
STATE OF
REGISTRATION United States of America.
SUBSIDIARY (a) in relation to any reference
to accounts, any company
wholly or partially owned by
Lessee whose accounts are
consolidated with the accounts
of the 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
50% of the voting share
capital; or
(ii) which is a direct or
indirect subsidiary of
another under the laws <PAGE> of
the jurisdiction of its
incorporation.
SUPPLEMENTAL RENT all amounts, liabilities and
obligations (other than Basic Rent
and Additional Rent) that Lessee
assumes or agrees to pay under this
Agreement to Lessor or any other
Person, including payment of
deposits, indemnities and the
Agreed Value.
TAX INDEMNITEES Lessor and each of the Financing
Parties.
TAXES all present and future taxes,
levies, imposts, duties or charges
in the nature of taxes, whatever
and wherever imposed, including
customs duties, value added taxes
or similar taxes and any franchise,
transfer, sales, use, business,
occupation, excise, personal
property, stamp or other tax or
duty imposed by any national or
local taxing or fiscal authority or
agency, together with any
withholding, penalties, additions
to tax, fines or interest thereon
or with respect thereto.
TERM the period commencing on the
Delivery Date and ending on the
Expiry Date or any later date
pursuant to Clause 12.4.
TOTAL LOSS with respect to the Airframe:
(a) the actual, arranged or
constructive total loss of the
Airframe (including any damage
to the Airframe 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);
(b) the Airframe being destroyed,
damaged beyond repair or
permanently rendered unfit for
normal use for any reason
whatsoever;
(c) the requisition of title, or
other compulsory acquisition,
capture, seizure, deprivation,
confiscation or detention for
any reason of the Airframe by
the government of the State <PAGE> of
Registration (whether de jure
or de facto), but excluding
requisition for use or hire
not involving requisition of
title; or
(d) the hi-jacking, theft,
condemnation, confiscation,
seizure or requisition for use
or hire of the Airframe
(excluding any of the
foregoing which is
attributable to a Lessor Lien
or the enforcement thereof)
which deprives any Person
permitted by this Agreement to
have possession and/or use of
the Airframe for more than 60
consecutive days.
TOTAL LOSS DATE (a) in the case of an actual total
loss, the actual date on which
the loss occurs or, if such
date is unknown, the day on
which the Aircraft was last
heard of;
(b) in the case of any of the
events described in
sub-paragraph (a) of the
definition of "Total Loss"
(other than an actual total
loss), the earlier of (i) 30
days after the date on which
notice claiming such total
loss is given to the relevant
insurers, and (ii) the date on
which such loss is admitted or
compromised by the insurers;
(c) in the case of any of the
events described in
sub-paragraph (b) of the
definition of "Total Loss",
the date on which such
destruction, damage or
rendering unfit occurs;
(d) in the case of any of the
events described in
sub-paragraph (c) of the
definition of "Total Loss",
the date on which the relevant
requisition of title or other
compulsory acquisition,
capture, seizure, deprivation,
confiscation or detention
occurs;
(e) in the case of any of the
events described in
sub-paragraph (d) of the
definition of "Total Loss",
the expiry of the period of 60
days referred to in such
sub-paragraph (d);
<PAGE>
and, in each case, the Total Loss
shall be deemed to have occurred at
noon Greenwich Mean Time on such
date.
1.2 INTERPRETATION
(a) In this Agreement, unless the contrary intention
is stated, a reference to:
(i) each of "LESSOR", "LESSEE", "FINANCING
PARTY" 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) the term "including", when used in this
Agreement, means "including without
limitation" and "including but not limited
to".
(iv) any document shall include that document as
amended, novated or supplemented from time
to time unless expressly stated to the
contrary;
(v) a law (1) includes any statute, decree,
constitution, regulation, order, judgment
or directive of any Government Entity; (2)
includes any treaty, pact, compact or other
agreement to which any Government Entity is
a signatory or party; (3)_includes any
judicial or administrative interpretation
or application thereof; and (4) is a
reference to that provision as amended,
substituted or re-enacted; and
(vi) a Clause, Schedule or Exhibit is a
reference to a clause of, a schedule to or
an exhibit to this Agreement.
(b) The headings in this Agreement are to be ignored
in construing this Agreement.
2. REPRESENTATIONS and WARRANTIES
2.1 LESSEE'S REPRESENTATIONS AND WARRANTIES
The Lessee represents and warrants as of the date
hereof to the Lessor as follows:
(a) STATUS: The Lessee is a corporation duly
organized, validly existing and in good standing
under the laws of the State of Incorporation, has
the <PAGE> corporate power to own its assets and carry on
its business as it is being conducted and is (or
will at the relevant time be) 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: The 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, each of the
Operative Documents and the transactions
contemplated by the Operative Documents.
(c) LEGAL VALIDITY: Each of the Operative Documents
constitutes the Lessee's legal, valid and binding
agreement, enforceable against Lessee in
accordance with its terms.
(d) NON-CONFLICT: The entry into and performance by
the Lessee of, and the transactions contemplated
by, the Operative Documents do not and will not:
(i) conflict with any Applicable Laws binding
on the Lessee;
(ii) conflict with the constitutional documents
of the Lessee; or
(iii) conflict with or result in default under
any document which is binding upon the
Lessee or any of its assets, or result in
the creation of any Security Interest over
any of its assets, other than Permitted
Liens.
(e) AUTHORIZATION: All authorizations, consents and
registrations required by, and all notifications
to be given by, the Lessee in connection with the
entry into, performance, validity and
enforceability of, the Operative Documents and the
transactions contemplated by the Operative
Documents have been (or will on or before Delivery
have been) obtained, effected or given (as
appropriate) and are (or will on their being
obtained or effected be) in full force and effect.
(f) NO IMMUNITY:
(i) The Lessee is subject to civil commercial
law with respect to its obligations under
this Agreement.
(ii) Neither the Lessee nor any of its assets is
entitled to any right of immunity and the
entry into and performance of the Operative
Documents by the Lessee constitute private
and commercial acts.
<PAGE>
(g) FINANCIAL STATEMENTS: the audited consolidated
financial statements of the Lessee and its
Subsidiaries most recently delivered to the
Lessor:
(i) have been prepared in accordance with
accounting principles and practices
generally accepted and consistently applied
in the State of Registration; and
(ii) fairly present the consolidated financial
condition of the Lessee and its
Subsidiaries as at the date to which they
were drawn up and the consolidated results
of operations of the Lessee and its
Subsidiaries for the periods covered by
such statements.
(h) PARI PASSU: The obligations of the Lessee under
this Agreement rank at least pari passu with all
other present and future unsecured and
unsubordinated obligations (including contingent
obligations) of the Lessee, with the exception of
such obligations as are mandatorily preferred by
law and not by virtue of any contract.
2.2 LESSEE'S FURTHER REPRESENTATIONS AND WARRANTIES
The Lessee further represents and warrants as of the
date hereof to the Lessor that:
(a) NO DEFAULT: No Event of Default has occurred and
is continuing or might reasonably be expected to
result from the entry into or performance of any
of the Operative Documents.
(b) REGISTRATION:
(i) It is not necessary or advisable under the
laws of the State of Registration in order
to ensure the validity, effectiveness and
enforceability of the Operative Documents
or to establish, perfect or protect the
property rights of Lessor or any Financing
Party in the Leased Property that any
instrument relating thereto other than this
Agreement, the Certificate of Acceptance,
the Assignment or the Mortgage 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
Delivery.
(ii) Under all Applicable Laws, including the
laws of the State of Incorporation and the
State of Registration, the property rights
of the Lessor and the Financing Parties
(pursuant to the Assignment and Mortgage)
in the Leased Property as of the Delivery
Date have been fully established, perfected
and protected and this Agreement will have
priority in all respects over the claims of
all creditors of <PAGE> the Lessee, with the
exception of such claims as are mandatorily
preferred by law and not by virtue of any
contract.
(c) LITIGATION: No litigation, arbitration or
administrative proceedings are pending or, to the
Lessee's knowledge, threatened against the 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 the Operative Documents.
(d) TAXES: The Lessee has delivered all necessary
returns and payments due to all tax authorities
having jurisdiction over Lessee, including those
in the State of Incorporation and the State of
Registration, except where the failure to do so
would not have a material adverse effect upon its
financial condition or business or its ability to
perform its obligations under the Operative
Documents, and based upon the representations of
Lessor in Clause 2.4 and on the assumption that
Lessor is a "United States person" within the
meaning of Section 7701(a)(30) of the Internal
Revenue Code of 1986, as amended, Lessee is not
required by law to deduct or withhold any Taxes
from any payments under this Agreement.
2.3 REPETITION
The representations and warranties in Clause 2.1 and
Clause 2.2 will survive the execution of this
Agreement. The representations and warranties
contained in Clause 2.1 and Clause_2.2 will be deemed
to be repeated by the Lessee on Delivery with reference
to the facts and circumstances then existing. The
representations and warranties contained in Clause 2.1
will be deemed to be repeated by the Lessee on each
Rent Date as if made with reference to the facts and
circumstances then existing.
2.4 LESSOR'S REPRESENTATIONS AND WARRANTIES
The Lessor represents and warrants to the Lessee that:
(a) STATUS: Lessor is a corporation duly organized,
validly existing and in good standing under the
laws of the State of Delaware and has the
corporate power to own the Leased Property and
carry on the business contemplated of Lessor under
the Operative Documents. Lessor is a "citizen of
the United States" within the meaning of Section
40102(a)(15) of the Federal Aviation Law.
(b) POWER AND AUTHORITY: Lessor has the corporate
power to enter into and perform, and has taken all
necessary corporate action to authorize the <PAGE> entry
into, performance and delivery of, each of the
Operative Documents and the transactions
contemplated by the Operative Documents.
(c) LEGAL VALIDITY: Each of the Operative Documents
constitutes Lessor's legal, valid and binding
agreement, enforceable against Lessor in
accordance with its terms.
(d) NON-CONFLICT: The entry into and performance by
Lessor of, and the transactions contemplated by,
the Operative Documents do not and will not:
(i) conflict with any Applicable Laws binding
on Lessor;
(ii) conflict with the certificate of
incorporation or bylaws of Lessor; or
(iii) conflict with or result in default under
any document which is binding upon Lessor
or any of its assets.
(e) AUTHORIZATION: So far as concerns the obligations
of Lessor, all authorizations, consents,
registrations and notifications required in
connection with the entry into, performance,
validity and enforceability of, and the
transactions contemplated by, the Operative
Documents by Lessor have been (or will on or
before Delivery have been) obtained, effected or
given (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 commercial law
with respect to its obligations under the
Operative Documents.
(ii) Neither Lessor nor any of its assets is
entitled to any right of immunity and the
entry into and performance of the Operative
Documents by Lessor constitute private and
commercial acts.
(g) RIGHT TO LEASE: On the Delivery Date, Lessor
shall have the right to lease the Aircraft to
Lessee under this Agreement.
2.5 REPETITION
The representations and warranties in Clause 2.4 will
survive the execution of this Agreement. The
representations and warranties contained in Clause 2.4
will be deemed to be repeated by Lessor on Delivery and
on each subsequent Rent Date as if made with reference
to the facts and circumstances then existing.
<PAGE>
3. CONDITIONS PRECEDENT
3.1 LESSOR'S DOCUMENTARY CONDITIONS PRECEDENT
Lessor's obligation to lease the Leased Property to
Lessee under this Agreement is subject to the receipt
of the following by Lessor and Mortgagee from Lessee on
or before Delivery in form and substance satisfactory
to the Lessor, provided that it shall not be a
condition precedent to the obligations of the Lessor
that any document be produced, or action taken, which
is to be produced or taken by it or any Person within
its control:
(a) CONSTITUTIONAL DOCUMENTS: a copy of the
constitutional documents of the Lessee;
(b) RESOLUTIONS: a copy of a resolution of the board
of directors of the Lessee approving the terms of,
and the transactions contemplated by, the
Operative Documents, resolving that it enter into
the Operative Documents, and authorizing a
specified individual or individuals to execute the
Operative Documents and accept delivery of the
Aircraft on its behalf;
(c) OPINIONS: (i) an opinion, in the form set out in
Exhibit D, in respect of Lessee's obligations
under the Operative Documents issued by
independent legal counsel acceptable to Lessor,
and (ii) an opinion from Special FAA Counsel as to
such matters as Lessor may reasonably request;
(d) APPROVALS: evidence of the issuance of each
approval, license and consent which may be
required in relation to, or in connection with,
the performance by Lessee of any of its
obligations hereunder;
(e) LICENSES: copies of the Lessee's air transport
license, air operator's certificate and all other
licenses, certificates and permits required by the
Lessee in relation to, or in connection with, the
operation of the Aircraft;
(f) CERTIFICATE: a certificate of a duly authorized
officer of the Lessee:
(i) setting out a specimen of each signature
referred to in Clause 3.1(b); and
(ii) certifying that each copy of a document
specified in this Clause 3.1 is correct,
complete and in full force and effect;
<PAGE>
(g) INSURANCES: certificates of insurance, brokers'
undertakings and other evidence satisfactory to
the Lessor and Mortgagee that the Lessee is taking
the required steps to ensure due compliance with
the provisions of this Agreement as to insurances
with effect on and after Delivery;
(h) FILINGS: evidence that all filings,
registrations, recordings and other actions have
been or will be taken which are necessary to
ensure the validity, effectiveness and
enforceability of the Operative Documents and to
protect the respective rights of the Lessor and
the Mortgagee in the Leased Property; and
(i) GENERAL: such other documents as Lessor may
reasonably request.
3.2 LESSOR'S OTHER CONDITIONS PRECEDENT
The obligation of the Lessor to deliver and lease the
Leased Property under this Agreement is also subject to
the following additional conditions precedent:
(a) REPRESENTATIONS AND WARRANTIES: the
representations and warranties of Lessee under
Clauses 2.1 and 2.2 are correct and would be
correct if repeated on Delivery; and
(b) PAYMENTS: all payments due to Lessor under this
Agreement on or before Delivery, including the
first payment of Basic Rent, shall have been
received by Lessor.
3.3 LESSOR'S WAIVER
The conditions specified in Clauses 3.1 and 3.2(a) and
(b) are for the sole benefit of the Lessor and the
Financing Parties and may be waived or deferred in
whole or in part and with or without conditions by the
Lessor.
3.4 LESSEE'S CONDITIONS PRECEDENT
The Lessee's obligation to accept the Leased Property
on lease from Lessor under this Agreement is subject to
the satisfaction by the Lessor of the following
conditions precedent:
(a) RESOLUTIONS: a copy of a resolution of the board
of directors of the Lessor approving the terms of,
and the transactions contemplated by, the
Operative Documents, resolving that it enter into
the Operative Documents, and authorizing a
specified individual or individuals to execute the
Operative Documents;
<PAGE>
(b) CERTIFICATE: the receipt by the Lessee of a
certificate of a duly authorized officer of the
Lessor:
(i) setting out a specimen of each signature
referred to in sub-clause (a) above; and
(ii) certifying that the copy of the resolutions
referred to in sub-clause (a) above is
correct, complete and in full force and
effect;
(c) REPRESENTATIONS AND WARRANTIES: the
representations and warranties of the Lessor under
Clause 2.4 are correct and would be correct if
repeated on Delivery;
(d) REGISTRATION: evidence that title to the Aircraft
is held by Lessor and that the Aircraft has been
validly registered under the laws of the State of
Registration;
(e) DELIVERY CONDITION: the Aircraft shall be in the
condition set forth on Schedule_3;
(f) CONSENT: the receipt by Lessee of the Consent,
duly signed by Lessor and Mortgagee;
(g) NO INJUNCTIONS: no action or proceedings shall
have been instituted nor shall governmental action
be threatened before any Government Entity, nor
shall any order, judgment or decree have been
issued or proposed to be issued by any Government
Entity at the time of the Delivery Date to set
aside, restrain, enjoin or prevent the completion
and consummation of this Agreement or the
transactions contemplated hereby;
(h) OPERATIVE DOCUMENTS: Lessee shall have received
executed counterparts of each of the Operative
Documents; and
(i) NO CHANGE IN LAW: no change shall have occurred
after the date of this Agreement in Applicable Law
(including changes in interpretations thereof by
Government Entities) which, in the reasonable
opinion of Lessee, would make it a violation of
Applicable Law for Lessee to enter into any
transaction contemplated by the Operative
Documents.
3.5 LESSEE'S WAIVER
The conditions specified in Clause 3.4 are for the sole
benefit of the Lessee and may be waived or deferred in
whole or in part and with or without conditions by the
Lessee. If any of those conditions are not satisfied
on or before Delivery and <PAGE> the Lessee (in its absolute
discretion) nonetheless agrees to lease the Leased
Property from the Lessor, then Lessor will ensure that
those conditions are fulfilled within one month after
the Delivery Date.
4. COMMENCEMENT
4.1 LEASING
(a) The Lessor will lease the Leased Property to the
Lessee and the Lessee will take the Leased
Property on lease in accordance with this
Agreement for the duration of the Term.
(b) The Lessor and the Lessee intend that this
Agreement constitute a "true lease" and a lease
for all United States federal income tax purposes.
Lessor and Lessee further intend and agree that
the Lessor shall be entitled to the full benefits
afforded lessors of aircraft under 11 U.S.C.
Section 1110, as amended.
4.2 DELIVERY
(a) DELIVERY CONDITION: Lessor shall deliver the
Leased Property in compliance with the delivery
conditions set forth in Schedule 3 and otherwise
"as is, where is and with all faults", except for
any items set forth on Annex 2 to the Certificate
of Delivery Condition and any other items agreed
in writing by Lessor and Lessee. Lessor
represents and warrants to Lessee that Lessor has
an agreement with Coopesa for the modification of
the Aircraft, which commenced ________ 1999, to
cause the Aircraft to comply with the delivery
conditions set forth on Schedule 3.
(b) DELIVERY INSPECTION: Before the Delivery Date,
Lessor shall cause Coopesa to make the Leased
Property available for Lessee to conduct a ground
inspection of the Aircraft and an inspection of
the Aircraft Documents to its satisfaction
(collectively, the "Ground Inspection"). The
Ground Inspection of the Aircraft shall include
the following:
(i) Lessee shall be entitled to perform, at
Lessee's expense, a videotape borescope
inspection of all accessible gas path
sections of each Engine (accessible whether
by borescope port or other means),
including the low pressure and high
pressure compressors and the turbine area
of such Engine. All items beyond the
Engine Manufacturer's maintenance manual
limits will be rectified at Lessor's sole
cost and expense. No Engine will be "on
watch" for any reason requiring special or
out of sequence inspection.
<PAGE>
(ii) In accordance with the Engine
Manufacturer's MPD, Lessor shall cause
Coopesa to perform a maximum power
assurance run and condition, acceleration
and bleed valve scheduling checks on each
Engine other than the Spare Engine. Coopesa
will record and evaluate each such Engine's
performance, with Lessee's representatives
entitled to be present. Each such Engine
shall pass such tests without operational
limitations throughout the operating
envelope in accordance with the Engine
Manufacturer's maintenance manual.
(iii) Lessor shall perform a videotape borescope
inspection of the APU, and all items beyond
the manufacturer's recommended limits will
be rectified at Lessee's sole cost and
expense.
(iv) The Aircraft shall be weighed just prior to
Delivery.
(c) AIRCRAFT DOCUMENTS: The Aircraft will be
accompanied by the Aircraft Documents listed on
Part_2 of Schedule_2. Lessor will also provide to
Lessee all historical and current maintenance
manuals, aircraft and engine technical records and
data, and other aircraft documentation provided to
the Lessor by the Previous Operator. Upon the
request of Lessee, Lessor shall use reasonable
efforts to obtain any required maintenance and
technical records or documents not in its custody.
(d) ACCEPTANCE FLIGHT: Before the Delivery Date,
Lessee shall be entitled to perform on behalf of
the Previous Owner, Previous Operator and Lessor a
demonstration flight of the Aircraft pursuant to a
FAR Part 125 deviation of up to two hours with up
to four representatives of Previous Operator and
Lessor on-board as observers (the "Acceptance
Flight"). The Lessee shall perform its flight
protocol during such Acceptance Flight. Lessee
shall also perform on behalf of Lessor such
further acceptance flights as may be necessary in
the event that the first or subsequent flights do
not confirm that the Aircraft complies with the
delivery requirements of this Agreement. Lessee
shall insure the Aircraft during all such
acceptance flights, and Lessor shall reimburse
Lessee for all of its costs in connection with all
such acceptance flights.
(e) CORRECTION OF DISCREPANCIES: The obligation of
Lessee to lease the Leased Property from Lessor is
subject to Lessor delivering the Leased Property
to Lessee in compliance with the conditions set
forth on Schedule 3. If Lessor corrects all
material discrepancies from the conditions set
forth on Schedule 3 before delivery, or if Lessor
and Lessee agree that Lessor will correct or pay
for their correction as set forth on <PAGE> Annex 2 to
the Certificate of Delivery Condition, then Lessee
shall accept the Leased Property. If, on the
Scheduled Delivery Date, the Aircraft is not, in
all material respects, in the condition set forth
in Schedule 3 and Lessor and Lessee do not agree
upon the correction of or payment for such
material discrepancies within 60 days after the
Scheduled Delivery Date, then Lessee may by notice
to Lessor given not later than 75 days after the
Scheduled Delivery Date terminate this Agreement.
If Lessee fails to give any such termination
notice within 75 days after the Scheduled Delivery
Date, Lessee shall be deemed to have accepted the
Leased Property for all purposes of this
Agreement.
(f) LESSEE'S PRE-DELIVERY MODIFICATIONS: During the
pre-Delivery modifications performed by Coopesa,
Lessee shall be permitted to request that Lessor
cause Coopesa to replace or deactivate certain
aircraft systems identified by Lessee, so long as
such requested maintenance work will not prevent
Lessor from delivering the Aircraft on the
Scheduled Delivery Date and are reasonably agreed
to by Lessor. Lessee shall pay Coopesa, or
reimburse Lessor for, all charges of Coopesa for
performing such replacement or deactivation. Any
materials or components that are removed from the
Aircraft and replaced shall be the property of
Lessee. Any materials or components that are
deactivated or are otherwise removed and not
replaced shall remain the property of Lessor and
be returned to Lessor at Lessor's cost.
4.3 DELAYED DELIVERY
If owing to Coopesa delaying in the completion of the
performance of the pre-Delivery modifications referred
to in Clause 4.2(f) above or any Excusable Delay,
Lessor delays in the delivery of, or fails to deliver,
the Aircraft under this Agreement on the Scheduled
Delivery Date, then in any such case:
(a) 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; and
(b) Lessee will not be entitled to terminate this
Agreement or to reject the Aircraft when tendered
for delivery by Lessor, on the grounds of any such
delay, unless 60 days have elapsed after the
Scheduled Delivery Date and Lessee has given
written notice to Lessor to the effect that Lessee
terminates this Agreement.
4.4 ACCEPTANCE AND RISK
<PAGE>
(a) The Leased Property will be delivered to, and will
be accepted by, the Lessee at the Delivery
Location on the Delivery Date immediately
following satisfaction of the conditions precedent
specified in Clauses 3.1, 3.2 and 3.4 (or their
waiver or deferral by the party entitled to grant
such waiver or deferral).
(b) Immediately following satisfaction of the
conditions precedent specified in Clauses_3.1, 3.2
and 3.4 (or their waiver or deferral by the party
entitled to grant such waiver or deferral), the
Lessee and the Lessor shall forthwith complete
Annex 1 to the Certificate of Delivery Condition
(specifying the maintenance status of the
Airframe, Engines, APU and Landing Gear) and
Lessor and Lessee shall sign and deliver to each
other the Certificate of Acceptance and the
Certificate of Delivery Condition. Delivery of
the signed Certificate of Acceptance to the Lessor
shall constitute deemed delivery of the Aircraft
to the Lessee.
(c) On and from Delivery, the Leased Property will be
in every respect at the sole risk of the Lessee,
which will bear all risk of loss, theft, damage or
destruction to the Leased Property from any cause
whatsoever.
(d) Concurrently with Delivery, Lessor shall file for
recordation this Agreement at the FAA Aircraft
Registry.
5. PAYMENTS
5.1 SECURITY DEPOSIT; LETTER OF CREDIT
(a) SECURITY DEPOSIT: On the date of this Agreement,
Lessee shall pay to Lessor an amount that, when added
to amounts previously paid to Lessor, equal the
Security Deposit. The Security Deposit shall
constitute additional security for performance by
Lessee of its obligations under this Agreement, and the
following provisions shall apply:
(i) If an Event of Default occurs and for as long as
it continues, the Lessor may (but shall not be
obligated to) apply all or any portion of the
Security Deposit in or towards satisfaction of any
sums due and payable to the Lessor under the
Operative Documents or to compensate the Lessor
for any sums which it may, in its discretion,
advance or expend as a result of any such Event of
Default. Notwithstanding any such use or
application by the Lessor, the Lessee shall remain
in default under this Agreement until the full
amount owed by the Lessee, including interest
accrued thereon pursuant to Clause 5.11, shall
have been paid to the Lessor. If the Lessor so
uses or applies all or any portion of the Security
Deposit, <PAGE> the Lessee shall, on demand of the
Lessor, replenish the Security Deposit in an
amount equal to the amount so used or applied
within five Business Days after Lessor's demand
therefor.
(ii) Lessor may commingle the Security Deposit with its
general funds and may deposit the Security Deposit
in any account selected by Lessor, whether
interest-bearing or not, and any interest earned
on the Security Deposit will be the sole property
of Lessor.
(iii) The Security Deposit shall be returned to
Lessee within five Business Days of (1)
delivery to Lessor of a Letter of Credit in
accordance with Clause 5.1(b),
(2) redelivery of the Aircraft to the
Lessor in the condition required by
Clause 12 and Schedule 4, or (3) receipt by
the Lessor of the Agreed Value following a
Total Loss and all other amounts due under
Clause 11.1(b); provided, that if, upon the
occurrence of any event specified in the
foregoing subclause (1), (2) or (3), any
amounts payable by Lessee under this
Agreement remain outstanding, then the
Security Deposit shall be returned to
Lessee within five Business Days of the
Lessor being satisfied that the Lessee has
irrevocably paid to the Lessor all amounts
that are at that time outstanding under
this Agreement.
(b) LETTER OF CREDIT: At any time on or after the
Delivery Date, Lessee shall be entitled, instead
of paying and having the Lessor hold the Security
Deposit in cash in accordance with Clause 5.1(a)
above, to provide the Lessor with the Letter of
Credit. In the event that the Lessee elects to
provide the Letter of Credit, the following
provisions shall apply:
(i) Lessee shall cause the Letter of Credit to
be renewed or replaced by the issuing bank
not later than 30 days before the
expiration of such Letter of Credit, and
shall cause the Letter of Credit to remain
in effect, as renewed, until 90 days after
the Expiry Date, subject to Clause
5.1(b)(iii) below.
(ii) If an Event of Default occurs and for as
long as it continues, the Lessor may (but
shall not be obliged to) call on the Letter
of Credit and use or apply the proceeds in
or towards satisfaction of any sums due and
payable to the Lessor under this Agreement
or to compensate the Lessor for any sums
which it may, in its discretion, advance or
expend as a result of any such Event of
Default. Notwithstanding any such use or
application by the Lessor, the Lessee shall
remain in default under this Agreement
until the full amount owed by the Lessee,
including interest accrued thereon pursuant
to Clause 5.11, shall have been paid to the
Lessor. If the <PAGE> Lessor so uses or applies
all or any portion of the amount available
under the Letter of Credit, the Lessee
shall immediately, on demand of the Lessor,
procure the issue of a new Letter of Credit
acceptable to the Lessor for an amount
equal to the amount so used or applied, or
shall pay to the Lessor an amount in cash
equal to the amount so used or applied to
be held pursuant to Clause 5.1(a).
(iii) The Letter of Credit shall be returned to
the Lessee within five Business Days of:
(1) redelivery of the Aircraft to the
Lessor in the condition required by
Clause 12 and Schedule 3; or
(2) receipt by the Lessor of the Agreed
Value following a Total Loss and
all other amounts due under Clause
11.1(b);
provided, that if, upon the occurrence of any
event specified in the foregoing subclause (1) or
(2), any amounts payable by Lessee under this
Agreement remain outstanding, then the Letter of
Credit shall be returned to Lessee within five
Business Days of the Lessor being satisfied that
the Lessee has irrevocably paid to the Lessor all
amounts which are at that time outstanding under
this Agreement.
5.2 RENTAL PERIODS
The first Rental Period will commence on the Delivery
Date and each subsequent Rental Period will commence on
the date succeeding the last day of the previous Rental
Period. Each Rental Period will end on the date
immediately preceding the next succeeding Rent Date
except that if a Rental Period would otherwise overrun
the Expiry Date, it will end on the Expiry Date.
5.3 BASIC RENT
(a) TIME OF PAYMENT: The Lessee will pay to the
Lessor or its order Basic Rent in advance on each
Rent Date. Payment must be initiated adequately
in advance of the Rent Date to ensure that the
Lessor receives credit for the payment on the Rent
Date.
(b) AMOUNT: The Basic Rent payable in respect of each
Rental Period will be the Basic Rent Amount as set
forth in Schedule 1.
<PAGE>
5.4 ADDITIONAL RENT
(a) AMOUNT: Subject to the proviso to Clause
7.2(e)(iii), Lessee will pay to Lessor Additional
Rent in relation to each calendar month (or
portion thereof) during the Term on the 12th day
following the end of that calendar month (or, with
respect to the last calendar month during the
Term, on the Expiry Date):
(i) in respect of the Airframe, the Airframe
Additional Rent Rate for each Flight Hour
flown by the Airframe during that calendar
month ("AIRFRAME ADDITIONAL RENT");
(ii) in respect of the Engines, the Engine
Additional Rent Rate for each Flight Hour
operated by each Engine during that
calendar month ("ENGINE ADDITIONAL RENT");
(iii) in respect of the Landing Gear, the Landing
Gear Additional Rent Rate for each Flight
Hour flown by the Airframe during that
calendar month ("LANDING GEAR ADDITIONAL
RENT"); and
(iv) in respect of the APU, the APU Additional
Rent Rate for each Flight Hour flown by the
Airframe during that calendar month ("APU
ADDITIONAL RENT");
(b) ADJUSTMENT: Lessor and Lessee, acting in good
faith, may mutually adjust the amount of
Additional Rent after the Delivery Date, upon
notice from one to the other, not more frequently
than annually based on the following:
(i) by reference to increases in the Consumer
Price Index as released by the Bureau of
Labor Statistics, United States Department
of Labor since the date of this Agreement;
(ii) by reference to Manufacturer's and Engine
Manufacturer's recommendations, industry
experience, any change in the operational
environment of the Aircraft that materially
affects the cost of maintaining the
Aircraft and any change in the Flight Hour
to Cycle ratio of the operation of the
Aircraft (it being understood that the
Additional Rent is based on the assumption
that the operation of the Aircraft during
the Term will, on average, be not less than
one Flight Hour for each Cycle); and
(iii) by reference to the Actual Costs
experienced by Lessee in the maintenance of
the Aircraft under this Agreement.
<PAGE>
5.5 LESSOR'S MONEYS: Lessor and Lessee intend that the
Additional Rent are amounts paid by Lessee to the
Lessor in consideration for the use of the Leased
Property by the Lessee and the satisfaction of the
Lessor's obligations under the Operative Documents and
that, when paid, the Additional Rent is irrevocably and
unconditionally the property of Lessor.
Notwithstanding that stated intent, if and to the
extent that the Additional Rent or any part thereof,
under any Applicable Law or otherwise, is determined to
be security deposits or otherwise the property of
Lessee or if it is so determined those moneys are a
debt owed to Lessee or that the Lessee shall have any
interest in those moneys (the "LESSORS' MONEYS"),
Lessee and Lessor agree that subclauses (a) and (b)
below shall apply:
(a) To the fullest extent permitted by law and by way
of continuing security, Lessee grants a Security
Interest in the Lessor's Moneys and all rights of
Lessee to payment thereof, the debt represented
thereby and all interest thereon and/or any and
all interest of Lessee therein to Lessor by way of
first priority Security Interest as security for
the Lessee's obligations and liability under this
Agreement (the "LESSEE'S LIABILITIES"). Except as
expressly permitted under this Agreement, Lessee
will not be entitled to payment of the Lessor's
Moneys. Lessee will not assign, transfer or
otherwise dispose of all or part of its rights or
interest in the Lessor's Moneys and Lessee agrees
that it will enter into any additional documents
and instruments necessary or reasonably requested
by Lessor or the Mortgagee to evidence, create or
perfect the Lessor's rights to the Lessor's
Moneys.
(b) 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) offset all or any part of the Lessee's
Liabilities against the liabilities of the
Lessor in respect of the Lessor's Moneys;
or
(ii) apply or appropriate the Lessor's Moneys in
or towards the payment or discharge of the
Lessee's Liabilities in such order as
Lessor sees fit.
5.6 PAYMENTS
(a) All payments of Rent by the Lessee to the Lessor
under this Agreement will be made for value on the
due date, for the full amount due, in Dollars and
in same day funds, settled through the New York
Clearing House System or such other funds as may
for the time being be customary for the settlement
in New York City of payments in Dollars by
telegraphic <PAGE> transfer to the account of the
Mortgagee at Citibank, N.A., ABA No. 021000089,
Account No. 4068-0522, Reference: "Vanguard
22120".
(b) If any Rent or other payment would otherwise
become due on a day which is not a Business Day,
it shall be due on the immediately succeeding
Business Day.
5.7 GROSS-UP
(a) All payments by the Lessee under or in connection
with this Agreement will be made without offset or
counterclaim, free and clear of and without
deduction or withholding for or on account of any
Taxes (other than Non-Indemnified Taxes that
Lessee is compelled by law to deduct or withhold).
(b) All Taxes (other than Non-Indemnified Taxes) in
respect of payments under this Agreement shall be
for the account of the Lessee.
(c) If the Lessee is compelled by law to make payment
to an Indemnitee under or in connection with this
Agreement subject to any Tax and such Indemnitee
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 (other than
Non-Indemnified Taxes that Lessee is compelled by
law to deduct or withhold), the Lessee will pay
all necessary additional amounts to ensure receipt
by such Indemnitee of the full amount (other than
Non-Indemnified Taxes that Lessee is compelled by
law to deduct or withhold) so provided for.
5.8 TAXATION
(a) The Lessee will on demand pay and indemnify each
Tax Indemnitee against all Taxes (other than
Non-Indemnified Taxes) levied or imposed against
or upon such Tax Indemnitee or the Lessee and
relating to or attributable to the Lessee, the
Operative Documents or the Aircraft directly or
indirectly in connection with the registration,
ownership, leasing, sub-leasing, 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.
(b) If any Tax Indemnitee shall realize any Tax
savings (by way of refund, deduction, credit or
otherwise) in respect of any amount with respect
to which the Lessee shall have made a payment (or
increased payment) pursuant to Clause 5.7 or 5.10
or shall have indemnified such Tax <PAGE> Indemnitee
pursuant to Clause 5.8(a), or in respect of the
occurrence or transaction which gave rise to such
payment or indemnification, and such Tax savings
shall not have been taken into account previously
in calculating any indemnity payment made by the
Lessee, then such Tax Indemnitee shall, subject to
the Lessee's obligations to repay such amount to
such Tax Indemnitee if the relevant savings are
subsequently disallowed or canceled, pay to the
Lessee the amount of such Tax savings (together
with, in the case of a refund, any interest
received thereon); provided, that no Tax
Indemnitee shall be obliged to make any payment to
the Lessee pursuant to this Clause 5.8(b) to the
extent that the amount of any Tax savings in
respect of which such payment is to be made would
exceed the aggregate amount of all prior payments
made by the Lessee to, on behalf of or as
indemnification of such Tax Indemnitee under this
Agreement for Taxes less the amount of all prior
payments made pursuant to this Clause 5.8(b) in
respect of such Tax savings. The Lessee
acknowledges that nothing contained in this Clause
5.8(b) shall interfere with the right of any Tax
Indemnitee to arrange its tax affairs in
whatsoever proper manner it thinks fit and, in
particular, no Tax Indemnitee shall be under any
obligation to claim any Tax savings in priority to
any other savings available to it; provided, that
subject to the foregoing each Tax Indemnitee shall
use reasonable good faith diligence to realize Tax
savings as described above.
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 (other than Non-Indemnified
Taxes), the Lessee will duly complete the same and, in
particular, will not state therein that any Person
other than Lessee is responsible for the use and
operation of the Aircraft and for the Taxes (other than
Non-Indemnified Taxes) arising therefrom, and the
Lessee will, on request, supply a copy of the report or
return to any Tax Indemnitee. If Lessee requires any
information or cooperation from any Tax Indemnitee in
order to satisfy its obligations as set forth above,
such Tax Indemnitee shall promptly furnish such
information or cooperation as Lessee may reasonably
request upon written request by Lessee. If actual
notice is given by any taxing authority to Lessor that
a report or return is required to be filed with respect
to any Taxes (other than Non-Indemnified Taxes), the
Lessor shall promptly notify Lessee of such required
report or return.
5.10 TAXATION OF INDEMNITY PAYMENTS
(a) If and to the extent that any sums payable to any
Tax Indemnitee by Lessee under this Agreement by
way of indemnity are insufficient, by reason of
any Taxes (other than Non-Indemnified Taxes)
payable in <PAGE> respect of those sums, for such Tax
Indemnitee to discharge the corresponding
liability to the relevant third party (including
any taxation authority), or to reimburse such Tax
Indemnitee for the cost incurred by it to a third
party (including any taxation authority), Lessee
will pay to such Tax Indemnitee such sum as will,
after the tax liability has been fully satisfied,
leave such Tax Indemnitee with the same amount as
it would have been entitled to receive in the
absence of that liability, together with interest
on the amount of the deficit at the Default Rate
in respect of the period commencing on the date on
which the payment of taxation is finally due until
payment by the Lessee (both before and after
judgment).
(b) If and to the extent that any sums constituting
(directly or indirectly) an indemnity to any Tax
Indemnitee but paid by the Lessee to any Person
other than such Tax Indemnitee are treated as
taxable in the hands of such Tax Indemnitee (other
than as a result of Non-Indemnified Taxes), then
Lessee will pay to such Tax Indemnitee such sum as
will, after the tax liability has been fully
satisfied, indemnify such Tax Indemnitee 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 Clause 5.10(b) at the Default Rate in respect
of the period commencing on the date on which the
payment of taxation is finally due until payment
by the Lessee (both before and after judgment).
5.11 DEFAULT INTEREST
If the Lessee fails to pay any amount payable under
this Agreement on the due date, the Lessee will pay on
demand from time to time to Lessor or any Financing
Party (as the case may be) interest (both before and
after judgment) at the Default Rate on such amount from
the due date to the day of payment in full by Lessee to
Lessor or such Financing Party. All such interest
shall be compounded monthly and calculated on the basis
of the actual number of days elapsed assuming a year of
360 days.
5.12 CONTEST
If written claim is made against any Tax Indemnitee for
or with respect to any Taxes (other than
Non-Indemnified Taxes), such Tax Indemnitee shall
promptly notify the Lessee. If reasonably requested by
the Lessee in writing within 30 days after such
notification, such Tax Indemnitee shall, upon receipt
of indemnity satisfactory to such Tax Indemnitee and at
the expense of the Lessee (including all reasonable
out-of-pocket costs, expenses, losses, legal and
accountants' fees and disbursements, penalties and
interest), in good faith contest or to the extent
permissible by law allow Lessee to contest in Lessee's
or such Tax Indemnitee's name, the validity,
applicability or amount of such Taxes by either (i)
resisting <PAGE> payment thereof if practicable and permitted
by Applicable Law, or (ii) if payment is made, using
reasonable efforts to obtain a refund thereof in
appropriate administrative and judicial proceedings,
and in the contest of any such claim by any Tax
Indemnitee, such Tax Indemnitee shall apprise the
Lessee of all material developments with respect to
such contest, shall forward copies of all material
submissions made in such contest and shall materially
comply in good faith with any reasonable request
concerning the conduct of any such contest; provided,
that no Tax Indemnitee will be obliged to take any such
action:
(a) if it waives its right under this Agreement to the
indemnity at issue in such contest; or
(b) unless there is a reasonable basis for such
contest, and if the amount of Tax in controversy
exceeds $50,000, Lessee provides such Tax
Indemnitee with an opinion of independent tax
counsel satisfactory to such Tax Indemnitee, both
as to counsel and substance, to the effect that
there is a reasonable basis for such contest; or
(c) for which Lessee has not made adequate provision
to the reasonable satisfaction of the Lessor or
such Financing Party (as the case may be) in
respect of the expense concerned; or
(d) if such action gives 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 the Lessor or
any Financing Party.
If any Tax Indemnitee, in accordance with the
foregoing, determines to pay such Taxes and seek a
refund, Lessee will either pay such Taxes on such Tax
Indemnitee's behalf and pay such Tax Indemnitee any
amount due with respect to such payment or will
promptly reimburse such Tax Indemnitee for such Taxes.
If any Tax Indemnitee shall obtain a refund of all or
any part of such Taxes paid by the Lessee, such Tax
Indemnitee shall pay Lessee the amount of such refund;
provided, that such amount shall not be payable before
such time as the Lessee shall have made all payments or
indemnities to any Tax Indemnitee then due with respect
to Taxes and so long as no Default has occurred and is
continuing. If in addition to such refund any Tax
Indemnitee shall receive an amount representing
interest, attorneys fees or any other amount with
respect to such refund, Lessee shall be paid that
proportion of such interest, attorneys fees or any
other amount which is fairly attributable to the Taxes
paid by the Lessee prior to the receipt of such refund.
No Tax Indemnitee shall enter into a settlement or
other compromise with respect to, or otherwise concede,
any claim by a taxing authority on account of Taxes
being contested by Lessee pursuant to this Clause 5.12
without the written consent of Lessee, which consent
shall not be unreasonably withheld. If a Tax
Indemnitee enters into a settlement or other <PAGE> compromise
without the written consent of Lessee in accordance
with the preceding sentence, such Tax Indemnitee shall
be deemed to have waived its right to be indemnified by
Lessee with respect to such claim (but not with respect
to any future claims).
5.13 ABSOLUTE
Lessee's obligations under this Agreement are absolute
and unconditional irrespective of any contingency
whatever including (but not limited to):
(a) any right of offset, counterclaim, recoupment,
defense or other right which either party to this
Agreement may have against the other;
(b) any unavailability of the Aircraft for any reason,
including a requisition of the Aircraft or any
prohibition or interruption of, interference with
or other restriction against the Lessee's use,
operation or possession of the Aircraft;
(c) any lack or invalidity of title or any other
defect in title, 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 Total 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
the Lessor or the Lessee;
(e) any invalidity, unenforceability or lack of due
authorization of, or other defect in, this
Agreement; or
(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 the Lessee under this Agreement;
provided always, however, that this Clause 5.13 shall
be without prejudice to the Lessee's right to claim
damages and other relief from the courts in the event
of any breach by the Lessor of its obligations under
this Agreement, or in the event that, as a result of
any lack or invalidity of title to the Aircraft on the
part of the Lessor, the Lessee is deprived of its
possession of the Aircraft.
<PAGE>
6. MANUFACTURER'S WARRANTIES
6.1 ASSIGNMENT
Notwithstanding this Agreement and subject to the
rights of Mortgagee pursuant to the Assignment, the
Lessor will remain entitled to the benefit of each
warranty, express or implied, and any unexpired
customer and/or product support given or provided in
respect of the Aircraft, any Engine or Part by any
manufacturer, vendor, maintenance performer,
subcontractor or supplier. Unless an Event of Default
shall have occurred and be continuing, Lessor hereby
authorizes Lessee to pursue any claim thereunder in
relation to defects affecting the Aircraft, any Engine
or Part, and the Lessee agrees diligently to pursue any
such claim which arises at its own cost. The Lessee
will notify the Lessor promptly upon becoming aware of
any such claim. The Lessor will provide such
assistance to the Lessee in making a claim under any
such warranties or customer and/or product support as
the Lessee may reasonably request, and, if requested by
the Lessee and at the Lessee's expense, will pursue a
claim in its own name where the relevant manufacturer,
vendor, maintenance performer, subcontractor or
supplier has refused to acknowledge the Lessee's right
to pursue that claim.
6.2 PROCEEDS
Unless an Event of Default shall have occurred and be
continuing, all proceeds of any such claim as is
referred to in Clause 6.1 and which exceed $250,000
will be paid directly to Lessor at the account set
forth in Clause 5.6(a), but if and to the extent that
such claim relates:
(a) to defects affecting the Aircraft which the Lessee
has rectified; or
(b) to compensation for loss of use of the Aircraft,
an Engine or any Part during the Term; or
(c) to costs incurred by the Lessee in pursuing such
claim (whether or not proceeds of such claim are
payable to the Lessee);
and provided no Default shall have occurred and be
continuing, the proceeds will be promptly paid to the
Lessee by Lessor but, in the case of (a), only on
receipt of evidence reasonably satisfactory to Lessor
that Lessee has rectified the relevant defect.
6.3 PARTS
Except to the extent the Lessor otherwise agrees in a
particular case, the Lessee will procure that all
engines, components, furnishings or equipment provided
by <PAGE> the manufacturer, vendor, maintenance performer,
subcontractor or supplier as a replacement for a
defective Engine or Part pursuant to the terms of any
warranty or customer and/or product support arrangement
comply with Clause 8.13(a), are installed on the
Aircraft promptly and that title thereto vests in the
Lessor in accordance with Clause 8.17(a). On
installation those items will be deemed to be an Engine
or Part, as applicable.
6.4 AGREEMENT
To the extent any warranties or customer and/or product
support relating to the Aircraft are made available
under an agreement between any manufacturer, vendor,
maintenance performer, subcontractor or supplier and
the Lessee, this Clause 6 is subject to that agreement.
However, Lessee will:
(a) pay the proceeds of any claim thereunder that
exceed $250,000 to Lessor at the account set forth
in Clause 5.6(a) to be applied pursuant to
Clause_6.2 and, pending such payment, will hold
the claim and the proceeds on trust for Lessor;
and
(b) take all such steps as are necessary and requested
by the Lessor at the end of the Term to ensure the
benefit of any of those warranties or customer
and/or product support which have not expired are
vested in the Lessor (but subject to the rights of
Mortgagee under the Mortgage).
7. LESSOR'S COVENANTS and DISCLAIMERS
7.1 QUIET ENJOYMENT
Provided no Event of Default shall have occurred and be
continuing, none of the Lessor, its successors and
assigns, any Financing Party or any Person claiming by,
through or on account of any of such parties will
interfere with the quiet use, possession and enjoyment
of the Aircraft by the Lessee.
7.2 LESSOR'S MAINTENANCE CONTRIBUTION
(a) AIRFRAME REIMBURSABLE EXPENSES:
(i) Upon the performance by Lessee of a Heavy
Check on the Airframe during the Term of
this Lease, the Lessee's Actual Costs
incurred in completing, with respect to the
Airframe, all routine Heavy Check tasks
shall constitute "AIRFRAME REIMBURSABLE
EXPENSES".
(ii) In connection with the performance of any
part of a Heavy Check, Lessee shall present
written evidence satisfactory to Lessor as
to <PAGE> the workscope to be performed and
payment installments relating to the
performance thereof in connection with such
Heavy Check and the amount of the Airframe
Reimbursable Expenses for approval by
Lessor. Upon receipt of such written
evidence, and provided there then exists no
Default, Lessor shall pay to Lessee, or to
the independent repair facility performing
such work if directed by Lessee, an amount
equal to the lesser of (i) the Airframe
Reimbursable Expenses or (ii) an amount
equal to (1) all Airframe Additional Rent
previously paid by Lessee under this Lease,
minus (2)_all previous payments by Lessor
under this Clause 7.2(a).
(b) ENGINE REIMBURSABLE EXPENSES:
(i) Upon the accomplishment of any CER for any
Engine during the Term requiring shop
repair, including any premature removal of
an Engine due to accelerated performance
deterioration revealed by Lessee's trend
monitoring data and replacement of LLPs
during any such shop visit, the Lessee's
Actual Cost incurred in completing such CER
shall constitute "ENGINE REIMBURSABLE
EXPENSES".
(ii) Upon accomplishment of any CER for an
Engine, Lessee shall present written
evidence satisfactory to Lessor as to the
completion of such CER to such Engine and
the amount of Engine Reimbursable Expenses
for approval by Lessor. Such shop visit
shall include a build standard to be
mutually agreed upon by Lessor and Lessee.
Upon receipt of such written evidence, and
provided there then exists no Default,
Lessor shall pay to Lessee, or to the
independent repair facility performing such
work if directed by Lessee, an amount equal
to the lesser of (i) the Engine
Reimbursable Expenses with respect to such
Engine or (ii) an amount equal to (1) all
Engine Additional Rent previously paid by
Lessee for such Engine pursuant to this
Lease, minus (2)_all previous payments for
such Engine by Lessor under this Clause
7.2(b).
(c) LANDING GEAR REIMBURSABLE EXPENSES:
(i) Upon the performance by Lessee of an
overhaul of any Landing Gear or the
replacement of LLPs of any Landing Gear, in
each case in accordance with the Agreed
Maintenance Program, the Lessee's Actual
Cost incurred in completing such overhaul
shall constitute "LANDING GEAR REIMBURSABLE
EXPENSES".
<PAGE>
(ii) Upon accomplishment of any such overhaul,
Lessee shall present written evidence
satisfactory to Lessor as to the completion
of such overhaul and the amount of Landing
Gear Reimbursable Expenses for approval by
Lessor. Upon receipt of such written
evidence, and provided there then exists no
Default, Lessor shall pay to Lessee, or to
the independent repair facility performing
such work if directed by Lessee, an amount
equal to the lesser of (i) the Landing Gear
Reimbursable Expenses or (ii) an amount
equal to (1) all Landing Gear Additional
Rent previously paid by Lessee pursuant to
this Lease, minus (2) all previous payments
by Lessor under this Clause 7.2(c).
(d) APU REIMBURSABLE EXPENSES:
(i) Upon the performance by Lessee of an
overhaul of the APU in accordance with the
Agreed Maintenance Program, the Lessee's
Actual Cost incurred in completing such
overhaul shall constitute "APU REIMBURSABLE
EXPENSES".
(ii) Upon accomplishment of any such overhaul,
Lessee shall present written evidence
satisfactory to Lessor as to the completion
of such overhaul and the amount of APU
Reimbursable Expenses for approval by
Lessor. Upon receipt of such written
evidence, and provided there then exists no
Default, Lessor shall pay to Lessee, or to
the independent repair facility performing
such work if directed by Lessee, an amount
equal to the lesser of (i) the APU
Reimbursable Expenses or (ii) an amount
equal to (1) all APU Additional Rent
previously paid by Lessee pursuant to this
Lease, minus (2) all previous payments by
Lessor under this Clause 7.2(d).
(e) ADDITIONAL PROVISIONS:
<PAGE>
(i) Notwithstanding the provisions of Clauses
7.2(a)(i), (b)(i), (c)(i) and (d)(i),
Reimbursable Expenses shall not include the
cost of (1) any replacements or repairs
caused by foreign object damage, ingestion,
accident, faulty maintenance or
installation, any incident, improper
operations, abuse, neglect, misuse or
elective parts replacement (except to the
extent ordinarily accomplished during such
maintenance or overhaul), (2) any
modifications or interior reconfiguration,
(3) the accomplishment of all airworthiness
directives or manufacturer's service
bulletins not incorporated into the
Maintenance Program, (4) maintenance work
that is reimbursable by a claim under the
manufacturer's warranties or by insurance
(but including deductibles for purposes of
this provision) or (5)_any overhaul of time
controlled components accomplished during
the Heavy Check, CER or overhaul except
such as are part of the routine tasks
included at such Heavy Check, CER or
overhaul or that, when tested during such
Heavy Check, CER or overhaul, fail and need
to be replaced.
(ii) Notwithstanding anything to the contrary
contained in this Clause 7.2, any such
maintenance and the extent and nature of
such maintenance to be performed shall be
conducted at an Agreed Maintenance
Performer. Lessor shall be entitled to
have representatives present during the
performance of such maintenance to oversee
and approve all aspects of such
performance, including the workscope
thereof to ensure that such maintenance is
in accordance with the Agreed Maintenance
Program. Lessor shall be notified by
Lessee prior to the commencement of any
maintenance work described in this Clause
7.2, including as to the Agreed Maintenance
Performer and for Lessor's approval of the
workscope.
(iii) Lessee acknowledges that Lessee is required
to pay the full cost of and to perform (or
cause to be performed) any check, shop
visit, overhaul or other maintenance
required by the Agreed Maintenance Program,
whether or not Lessor is required to make
any payments pursuant to this Clause 7.2,
and any costs incurred by Lessee in
performing any such check, shop visit,
overhaul or other maintenance required by
the Agreed Maintenance Program shall be for
Lessee's account solely; provided, that if
Lessor's contribution pursuant to Clause
7.2(a), (b), (c) or (d) above is ever less
than the Reimbursable Expenses incurred by
Lessee with respect to the Airframe,
Engines, Landing Gear or APU, then Lessee's
obligation under Clause_5.4 to make
payments of Additional Rent with respect to
the Airframe, Engines, Landing <PAGE> Gear or APU,
respectively, shall be suspended until an
equivalent amount to such shortfall has
been retained by Lessee.
(iv) Lessor shall deposit all Additional Rent in
an interest-bearing account with the
Mortgagee or with another financial
institution that Mortgagee uses for other
similar amounts deposited with it. Lessor
shall not commingle its general funds in
such account, but such account may hold
security deposits, additional rent and
similar payments paid to Affiliates of
Lessor under other aircraft leases. Any
interest earned on the Additional Rent will
be added to and become a part of the
Additional Rent.
7.3 INTENTIONALLY OMITTED
7.4 LESSOR'S AD COST SHARING CONTRIBUTION
(a) Provided no Default has occurred and is
continuing, upon the performance by Lessee of
"Qualifying AD Work" (as hereinafter defined)
relating to (i) any single airworthiness directive
issued by the Aviation Authority after the
Delivery Date and requiring terminating action
during the Term, (ii) any FAR regulation
promulgated after the Delivery Date requiring the
installation on the Aircraft during the Term of a
16-parameter flight data recorder or (iii) any FAR
regulation promulgated after the Delivery Date
requiring the installation in the cargo
compartment of the Aircraft during the Term of
fire indicators, Lessor will pay to Lessee, by way
of contribution to the cost of maintenance of the
Aircraft, an amount equal to the product of
(1)_the amount by which the Actual Cost of the
Qualifying AD Work for such single airworthiness
directive or either of such regulations exceeds
$50,000, multiplied by (2)_a fraction the
numerator of which is 84 minus the number of
months (rounded to the nearest whole number of
months) from the Delivery Date to the date of
completion of such Qualifying AD Work and the
denominator is 84.
(b) "Qualifying AD Work" means maintenance work
performed on the Aircraft solely in order to
comply fully with airworthiness directives issued
by the Aviation Authority after the Delivery Date
on a terminating action basis or with the two FAR
regulations described in Clause 7.4(a)(ii) and
(iii), and excluding work performed for any other
purpose, such as compliance with airworthiness
directives by means of repetitive inspections,
recording compliance work in the Aircraft
Documents and all other maintenance work.
<PAGE>
(c) The Lessor will be obligated to pay any amount
specified in Clause 7.4(a) within 14 days after
submission by the Lessee to the Lessor of an
invoice and supporting documentation reasonably
satisfactory to the Lessor evidencing the
performance of Qualifying AD Work for an
airworthiness directive.
7.5 REGISTRATION AND FILINGS
The Lessor shall, at the Lessor's cost:
(a) maintain the registration of the Aircraft with the
Aviation Authority reflecting (so far as permitted
by Applicable Law) the respective interests of
Lessor and Lessee and not do or suffer to be done
anything which might reasonably be expected to
adversely affect that registration; and
(b) do all acts and things (including making any
filing or registration with the Aviation Authority
or any other Government Entity) as may be required
following any change in the ownership or financing
of the Aircraft.
7.6 AGREED MAINTENANCE PERFORMERS
The Lessor may object to and may exclude any
maintenance organization (other than Lessee) being
included as an "Agreed Maintenance Performer" for a
valid business reason; provided, that Lessor must
provide such objection within 45 days of scheduled
maintenance. The Lessor shall furnish to Lessee in
writing from time to time a list of all maintenance
organizations excluded from the definition of "Agreed
Maintenance Performer" pursuant to the preceding
sentence, which list may be amended by Lessor from time
to time. The Lessor and the Lessee shall consult in
good faith regarding any organizations on such list
from time to time at the request of either party.
7.7 EXCLUSION
THE AIRCRAFT IS ACCEPTED BY THE LESSEE "AS IS, WHERE IS
WITH ALL FAULTS" AND LESSEE AGREES AND ACKNOWLEDGES
THAT, SAVE AS IS 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 CONDITIONS, WARRANTIES OR REPRESENTATIONS,
EXPRESS OR IMPLIED, WITH RESPECT TO THE AIRCRAFT,
INCLUDING:
(a) THE DESCRIPTION, AIRWORTHINESS, MERCHANTABILITY,
FITNESS FOR ANY USE OR PURPOSE, VALUE, CONDITION,
OR DESIGN, OF THE AIRCRAFT OR ANY PART; OR
<PAGE>
(b) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY
IN TORT, WHETHER OR NOT ARISING FROM LESSOR'S
NEGLIGENCE, ACTUAL OR IMPUTED (BUT EXCLUDING ANY
SUCH OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY
IN TORT WHICH ARISES FROM LESSOR'S GROSS
NEGLIGENCE OR WILFUL MISCONDUCT); OR
(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, INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES.
7.8 LESSEE'S WAIVER
LESSEE HEREBY WAIVES, AS BETWEEN ITSELF AND THE LESSOR,
ALL ITS RIGHTS IN RESPECT OF ANY CONDITION, 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 AS IS OTHERWISE EXPRESSLY STATED IN
THIS AGREEMENT.
7.9 LESSEE'S CONFIRMATION
LESSEE CONFIRMS THAT IT IS FULLY AWARE OF THE
PROVISIONS OF CLAUSES 7.7 AND 7.8 AND ACKNOWLEDGES THAT
BASIC RENT AND OTHER AMOUNTS HAVE BEEN CALCULATED
NOTWITHSTANDING ITS PROVISIONS.
8. LESSEE'S COVENANTS
8.1 DURATION
The undertakings in this Clause 8 and in Clause 12
will:
(a) except as otherwise stated, be performed at the
expense of the Lessee; and
(b) remain in force until redelivery of the Aircraft
to the Lessor in accordance with this Agreement
and thereafter to the extent of any accrued rights
of the Lessor in relation to those undertakings.
<PAGE>
8.2 INFORMATION
The Lessee shall:
(a) furnish to the Lessor, with a copy to Mortgagee:
(i) within 60 days after the last day of the
first three fiscal quarters of each fiscal
year of the Lessee, unaudited consolidated
quarterly financial statements of the
Lessee prepared for such quarter, including
a consolidated balance sheet of the Lessee
and its Subsidiaries as of the last day of
such quarter and consolidated statements of
income and retained earnings for such
fiscal quarter and for the year to date
and, on a comparative basis, figures for
the corresponding periods of the
immediately preceding fiscal year, all in
reasonable detail, each such statement to
be certified in a certificate of Lessee's
chief financial officer or chief accounting
officer as fairly presenting the financial
position and the results of operations of
the Lessee as at its date and for such
quarter (subject to year-end audit
adjustments) and as having been prepared in
accordance with GAAP;
(ii) as soon as available but not in any event
later than 105 days after the last day of
each fiscal year of the Lessee, audited
consolidated financial statements of the
Lessee prepared for such year, including a
consolidated balance sheet of the Lessee
and its Subsidiaries as of the last day of
such year, consolidated statements of
income and retained earnings of the Lessee
and its Subsidiaries for such fiscal year,
a consolidating balance sheet of the Lessee
and its Subsidiaries as of the last day of
such year and consolidating statements of
income and retained earnings of the Lessee
and its Subsidiaries for such fiscal year
and in all cases on a comparative basis
figures for the immediately preceding
fiscal year, all in reasonable detail, each
prepared in accordance with GAAP and
certified without qualification by Ernst &
Young or another of the largest
international firms of independent
certified public accountants as fairly
presenting the financial position and the
results of operations of Lessee and its
Subsidiaries at the end of and for such
fiscal year and as having been prepared in
accordance with GAAP;
(iii) in lieu of delivering the financial
statements referred to in sub-clauses (i)
and (ii) above, (1) Lessee may deliver
Quarterly Reports on Form 10-Q and Annual
Reports on Form 10-K for the respective
periods filed by the Lessee pursuant to and
in <PAGE> accordance with the Securities Exchange
Act of 1934, as amended, and (2) Lessee may
cause such financial statements (or 10-Qs
and 10-Ks) to be publicly available on the
internet through EDGAR filings with the
Securities and Exchange Commission or
otherwise;
(iv) at the same time as it is issued to the
creditors of the Lessee, a copy of each
notice or circular issued to the Lessee's
creditors as a group; and
(v) on request from time to time such other
information regarding the Lessee and its
business and affairs as the Lessor or
Mortgagee may reasonably request;
(b) on request, inform the Lessor as to the current
location of the Airframe and Engines and the
serial number and owner of any engine installed on
the Airframe;
(c) promptly furnish to Lessor all information that
Lessor from time to time reasonably requests
regarding the Aircraft, any Engine or any Part and
its use, location and condition, including the
hours available on the Aircraft and any Engine
until the next scheduled check, inspection,
overhaul or shop visit, as the case may be;
(d) on request, furnish to the Lessor evidence
reasonably satisfactory to the Lessor that all
Taxes and charges incurred by the Lessee with
respect to the Aircraft have been paid and
discharged in full;
(e) provide to the Lessor, within five days following
the end of each calendar month during the Term, a
monthly report on the Aircraft in the form set out
in Exhibit_F or such other form as the Lessee may
select providing substantially the same
information;
<PAGE>
(f) promptly notify Lessor and Mortgagee of:
(i) any Total Loss, any Engine Loss, any theft
of the Airframe or any Engine, any damage
to the Aircraft if the potential cost of
repair may reasonably be expected to exceed
the Damage Notification Threshold or any
modification to the Aircraft if the
potential cost may reasonably be expected
to exceed the Damage Notification
Threshold;
(ii) any claim or other occurrence likely to
give rise to a claim under the Insurances
(but, in the case of hull claims only, in
excess of the Damage Notification
Threshold) and details of any negotiations
with the insurance brokers over any such
claim; and
(iii) any litigation, arbitration or
administrative proceedings that are pending
or, to the Lessee's knowledge, threatened
against the 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.
8.3 LAWFUL AND SAFE OPERATION
The Lessee shall:
(a) comply with all Applicable Law for the time being
in force in any country or jurisdiction in which
the Aircraft is being operated which is applicable
to the Aircraft or the use and operation of the
Aircraft;
(b) not use the Aircraft in any manner contrary to any
requirement or regulation of the Aviation
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 Aviation Authority
and Applicable Law;
(d) use the Aircraft solely in commercial or other
operations for which the Lessee is duly authorized
by the Aviation Authority and Applicable Law;
(e) not knowingly use the Aircraft (or use it when the
Lessee ought reasonably to have known that it was
being so used) for the carriage of:
(i) whole animals, living or dead, except in
the cargo compartments according to IATA
regulations, and except domestic pet
animals <PAGE> 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 cargo
aircraft under the "Restriction of Goods"
schedule issued by IATA 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 item or substance whose carriage is
illegal under Applicable Law;
(f) not utilize the Aircraft for purposes of training,
qualifying or re-confirming the status of cockpit
personnel except for the benefit of the 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 the Lessee;
(g) not (other than for bona fide safety reasons)
cause or permit the Aircraft to proceed to, or
remain at, any location which is for the time
being the subject of a prohibition order (or any
similar order or directive) by:
(i) any Government Entity of the State of
Registration; or
(ii) any Government Entity of the country in
which such location is situated; or
(iii) any Government Entity having jurisdiction
over the Lessee or the Aircraft;
(h) obtain and maintain in full force all
certificates, 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 the Lessee with
its other obligations under, this Agreement.
<PAGE>
8.4 TAXES AND OTHER CHARGES
The Lessee will promptly pay:
(a) all license and registration fees, Taxes (other
than Non-Indemnified Taxes) and other amounts of
any nature imposed by any Government Entity that
are imposed on the Lessee or for which the Lessee
is responsible under this Agreement with respect
to the Aircraft, including the purchase,
ownership, delivery, leasing, possession, use,
operation, return, sale or other disposition of
the Aircraft; and
(b) all rent, fees, charges, Taxes (other than
Non-Indemnified Taxes) imposed on the Lessee and
other amounts in respect of any premises where the
Aircraft or any Part thereof is located from time
to time during the Term;
except to the extent that such payment is being
contested in good faith by appropriate proceedings in
accordance with Clause 5.12.
8.5 SUB-LEASING
Lessee will not sub-lease or otherwise part with
possession of the Aircraft, the Engines or any Part
except that the 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 an Agreed Maintenance
Performer for service, repair, maintenance or
overhaul work or for alterations, modifications or
additions to the extent required or permitted by
this Agreement;
(b) with respect to an Engine or Part, as expressly
permitted by this Agreement;
(c) with respect to the Aircraft or an Engine,
pursuant to an ACMI (aircraft crew, maintenance
and insurance) "wet" lease or charter of the
Aircraft in which operational control of the
Aircraft remains with the Lessee at all times,
provided the Aircraft remains registered with the
Aviation Authority;
(d) with respect to the Aircraft or an Engine, and
with the consent of Lessor and Mortgagee (which
consent shall not be unreasonably withheld),
pursuant to a sublease to a certificated air
carrier under the following conditions:
(i) no Default shall have occurred and be
continuing;
<PAGE>
(ii) notwithstanding such sublease, Lessee shall
remain primarily responsible to Lessor
hereunder and the sublease, by its terms,
shall be expressly subject and subordinate
in all respect to this Agreement;
(iii) the sublease shall include clauses
identical to or having the same substantive
effect as Clauses 2.1, 2.2, 5, 7.7, 7.8, 8,
9, 10, 13, 15.11 and Schedule 5 of this
Agreement, except that a sublease may
impose additional or more stringent
obligations on, or give fewer rights to,
any sublessee than are imposed on Lessee
under the provisions of this Agreement and
that the term of the sublease shall not be
capable of extending beyond the Expiry
Date; provided, that any sublease to a
certificated air carrier that is an
Affiliate of Lessee (an "Affiliate
Sublease") need only include clauses
identical to or having the same substantive
effect as Clauses 8 and 9 and Schedule 5 of
this Agreement;
(iv) the rights, title and interests of Lessor
and the Financing Parties in and to the
Leased Property and this Agreement shall be
duly evidenced and protected to the
satisfaction of Lessor and such Financing
Parties (including as to the making of all
necessary filings and registrations) and
such interests shall not, in Lessor's
reasonable opinion, be prejudiced by the
sublease;
(v) Lessee and the sublessee shall have
executed and delivered to Lessor a security
assignment in respect of the sublease
together with an acknowledgment of such
assignment, each such document to be in
such form as Lessor and Mortgagee shall
reasonably require;
(vi) the sublessee shall be a reputable air
carrier, experienced in operating aircraft
of the same type as the Aircraft, shall
hold all necessary consents, licenses,
permits and authorizations required under
the applicable law of the state of
incorporation or establishment of such
carrier for the public transport of
passengers and cargo, and shall not be
subject to any event of the types described
in Clauses 13.1(g), (h) or (i) as of the
commencement of the sublease;
(vii) the Aircraft shall not be based or
re-registered outside the State of
Registration if the Lessor or Mortgagee
determines, in its absolute discretion,
that the foreign jurisdiction is not
acceptable in terms of political and
judicial risk;
<PAGE>
(viii) Lessee shall give written notice to
Lessor and the Financing Parties of any
proposed sublease at least 30 days prior
to the date on which it is proposed that
such sublease be executed (which notice
shall include the identity of any
proposed change in the State of
Registration and, if then determined,
the term and the delivery date of the
proposed Sublease), and within a
reasonable period prior to the execution
by Lessee of any sublease, Lessee will
provide Lessor and the Financing Parties
with a copy of the draft sublease in
order for Lessor and the Financing
Parties to satisfy themselves that the
conditions set out in this Clause 8.5(d)
as to the form of the sublease are
fulfilled; provided, that in connection
with an Affiliate Sublease that does not
contemplate a change in the State of
Registration, Lessee need only give
Lessor and the Financing Parties written
notice of such Affiliate Sublease five
days prior to the date on which such
Affiliate Sublease is proposed to be
executed;
(ix) prior to delivery of the Aircraft to the
sublessee under any sublease, Lessee shall
deliver to Lessor an original counterpart
of the sublease duly executed by Lessee and
sublessee, and except in connection with an
Affiliate Sublease shall provide Lessor
with the equivalent of the conditions
precedent set forth in Clause 3.1 and 3.2
applicable to such sublessee;
(x) Lessee shall be responsible for all
reasonable costs incurred by Lessor and any
Financing Party in connection with the
Sublease; and
(xi) the sublease shall provide that no further
subleases of the Aircraft by the sublessee
shall be permitted.
8.6 INSPECTION
(a) Lessor, any Financing Party and any Person
designated by Lessor or any Financing Party may at
any time visit, inspect and survey the Aircraft,
any Engine or any Part and for such purpose may,
subject to any applicable Aviation Authority
regulation, travel on the flight deck as observer.
Subject to Clause 8.6(c)(ii) below, Lessor, any
Financing Party or any designee shall not be
restricted during such inspection from opening any
panels, bays or doors on the Aircraft or from
inspecting any part of the Aircraft.
<PAGE>
(b) Lessee shall have no responsibility for the costs
and expenses of Lessor and any Financing Party in
connection with any such visit, inspection or
survey.
(c) The Lessor shall:
(i) have no duty to make, or liability arising
out of, any such visit, inspection or
survey; and
(ii) so long as no Default has occurred and is
continuing, not exercise such right other
than on reasonable notice and so as not to
disrupt unreasonably the maintenance or
operation of the Aircraft.
8.7 PROTECTION OF TITLE
The Lessee shall:
(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 respective rights, title and
interest of Mortgagee as mortgagee of the Aircraft
and assignee of this Agreement or the Lessor as
owner of the Aircraft and lessor under this
Agreement or the validity, enforceability or
priority of the Mortgage and the Assignment;
(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 the
Lessor and is subject to the Mortgage;
(c) not at any time:
(i) represent or hold out the Lessor or any
Financing Party 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 the Lessee; or
(ii) pledge the credit of the Lessor or any
Financing Party;
(d) ensure that there is always affixed, and not
removed or in any way obscured, a fireproof plate
(having dimensions of not less than 6 in. x 4 in.)
in a reasonably prominent position on the Aircraft
and on each Engine stating:
<PAGE>
"This [Aircraft/Engine] is owned by
Aircraft 22120, Inc., is leased to
Vanguard Airlines, Inc. and is
subject to a mortgage and security
agreement in favor of FINOVA Capital
Corporation. It may not be operated
by any other person without the prior
written consent of Aircraft 22120,
Inc. and FINOVA Capital Corporation."
(e) not create or permit to exist any Security
Interest upon the Aircraft, any Engine or any
Part, except Permitted Liens;
(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, appropriation, damage or
destruction and, without prejudice to the
foregoing, if any such penalty, forfeiture,
impounding, detention, appropriation, damage or
destruction occurs, give the Lessor notice and use
its best efforts to procure the immediate release
of the Aircraft, such Engine or such 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
discharged when due and payable or make adequate
provision by way of security or otherwise for all
debts, damages, claims and liabilities which have
given or might reasonably be expected to give rise
to a Security Interest (other than a Permitted
Lien) 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 other than as
expressly permitted by this Agreement.
8.8 GENERAL
Lessee will:
(a) not make any substantial change in the nature of
the business in which it is engaged if such
change, in the reasonable opinion of the Lessor or
Mortgagee, might reasonably be expected to have a
material adverse effect on the Lessee's
performance of its obligations under this
Agreement;
(b) preserve its corporate existence, and will not
merge or consolidate with any Person unless the
successor Person resulting from such merger or
consolidation (the "SUCCESSOR")
<PAGE>
(i) is a Person incorporated, formed or
organized under the laws of a State of the
United States of America;
(ii) shall have a net worth immediately after
such merger or consolidation of not less
than the Lessee's net worth immediately
prior thereto;
(iii) shall be authorized under Applicable Law to
perform the Lessee's obligations under this
Agreement to the same extent as the Lessee;
(iv) shall deliver to Lessor and Mortgagee an
agreement in form and substance reasonably
satisfactory to Lessor containing an
assumption by the Successor of Lessee's
representations and warranties under this
Agreement, together with the due and
punctual performance of all of Lessee's
obligations under this Agreement; and
(v) shall deliver to Lessor and Mortgagee an
opinion of counsel reasonably satisfactory
in form and substance to Lessor and
Mortgagee covering the Operative Documents
and the agreement referred to in sub-clause
(iv) above and substantially in the form of
the legal opinion set forth in Exhibit_D.
8.9 RECORDS
The Lessee shall procure that accurate, complete and
current records of all flights made by, and all
maintenance carried out on, the Aircraft (including, in
relation to each Engine or Part subsequently installed,
before its installation) are kept in English, and shall
keep the records in such manner as the Aviation
Authority may from time to time require. The records
will form part of the Aircraft Documents.
<PAGE>
8.10 REGISTRATION AND FILINGS
Lessee shall:
(a) not do anything that might reasonably be expected
to adversely affect the registration of the
Aircraft with the Aviation Authority reflecting
(so far as permitted by Applicable Law) the
respective interests of the Lessor and Mortgagee;
and
(b) do all acts and things (including making any
filing or registration with the Aviation Authority
or any other Government Entity) and executing and
delivering all documents (including any amendment
of this Agreement) as may be required by the
Lessor 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
respective rights of the Lessor and Mortgagee
under this Agreement apply with the same effect as
before.
8.11 MAINTENANCE AND REPAIR
The Lessee shall:
(a) keep the Aircraft airworthy in all respects and in
good repair and condition, and all maintenance
will be carried out in accordance with the Agreed
Maintenance Program;
(b) advise the Lessor and Mortgagee in writing of all
material changes to the Agreed Maintenance
Program;
(c) maintain the Aircraft in accordance with the
Agreed Maintenance Program through Agreed
Maintenance Performers and perform (at the
respective intervals provided in the Agreed
Maintenance Program) all Major Checks, and before
performing any Major Check Lessee will consult
with Lessor as to the workscope for such Major
Check;
(d) maintain the Aircraft in accordance with FAR Part
121 and all other rules and regulations of the
Aviation Authority as are applicable to aircraft
of the same type as the Aircraft operated by
United States of America air carriers;
(e) without limiting the provisions of Clause 7.4,
comply with all mandatory inspection and
modification requirements, airworthiness
directives and similar requirements applicable to
the Aircraft, any Engine or Part having <PAGE> a
compliance date on or before 90 days after the
Expiry Date and that are required by the Aviation
Authority;
(f) comply with all alert service bulletins issued by
any manufacturer of the Aircraft, Engines or
Parts, and comply (including scheduling compliance
work and then performing such work on schedule)
with all other service bulletins issued by any
such manufacturer if and to the extent that the
Lessee brings or schedules to bring in compliance
at least one-half of the applicable aircraft it
operates (excluding for purposes of such
calculation aircraft acquired from unrelated third
parties that already comply with such other
service bulletins);
(g) comply with all Applicable Laws and the
regulations of the Aviation Authority and any
other aviation authorities with jurisdiction over
the Lessee or the Aircraft, any Engine or Part
that relate to the maintenance, condition, use or
operation of the Aircraft or require any
modification or alteration to the Aircraft, any
Engine or Part;
(h) maintain in good standing a current U.S. Standard
Transport Category Certificate of Airworthiness
for the Aircraft issued by the Aviation Authority
in accordance with FAR Part 21 except when the
Aircraft is undergoing maintenance, modification
or repair required or permitted by this Agreement,
and shall from time to time provide to the Lessor
a copy on request;
(i) if required by the Aviation Authority, maintain a
current certification as to maintenance issued by
or on behalf of the Aviation Authority in respect
of the Aircraft and shall from time to time
provide to the Lessor a copy on request;
(j) maintain the Engines with respect to overhaul
build standards and disc replacements at a level
which is consistent with the level applied by the
Lessee in relation to other engines of the same
type as the Engines in its fleet;
(k) maintain the Engines and the APU in an "on
condition" program as set forth in the respective
manufacturer's maintenance planning document;
(l) subject to Clause 11.2, 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 Clause 8.13(a); and
<PAGE>
(m) maintain the Airframe at all times in compliance
with the requirements of the Manufacturer's Aging
Aircraft Program, SID Program and CPCP and related
mandates of the Aviation Authority, with all
documentation necessary to assure and demonstrate
compliance becoming part of the Aircraft
Documents.
8.12 REMOVAL OF ENGINES AND PARTS
The 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
(b) If the removal is of an obsolete item and is in
accordance with the Agreed Maintenance Program; or
(c) pursuant to, and in accordance with, Clause 8.15;
or
(d) (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
modifications 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
Clause 8.13(a) as soon as practicable and in any
event no later than the Expiry Date.
8.13 INSTALLATION OF ENGINES AND PARTS
(a) The Lessee will ensure that, except as permitted
by this Agreement, 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
(provided, in the case of an improved or
advanced version, it can be installed and
operated on the Airframe without
modification of the Airframe or the engine,
whether or not the other installed Engine
is also such an improved or advanced
version), which has attached to it a
current "serviceable tag" issued by the
manufacturer or supplier <PAGE> indicating that
the engine is new, serviceable or
overhauled, and the Lessee shall retain all
such tags;
(ii) in the case of a part, it is in as good
operating condition, is of the same
interchangeable modification status as the
replaced Part and has attached to it a
current "serviceable tag" issued by the
manufacturer or supplier indicating that
the part is new, serviceable or overhauled,
and the Lessee shall retain all such tags;
(iii) in the case of a part, it has become and
remains the property of the Lessor free
from Security Interests and on installation
on the Aircraft will, without further act,
be subject to this Agreement and to the
Security Interest created by the Mortgage,
in which case title to the removed part
shall automatically become vested in Lessee
without further action or warranty on the
part of Lessor except that such Part shall
be free of Lessor Liens; and
(iv) in each case, the Lessee has full details
as to its source and maintenance records.
(b) If no Event of Default has occurred which is
continuing, the Lessee will be entitled to install
any engine or part on the Aircraft by way of
replacement notwithstanding Clause 8.13(a) if:
(i) there is not available to Lessee at the
time and in the place that engine or part
is required to be installed on the Aircraft
a replacement engine or part complying with
the requirements of Clause 8.13(a);
(ii) it would result in an unreasonable
disruption of the operation of the Aircraft
or the business of Lessee to ground the
Aircraft until an engine or part complying
with Clause 8.13(a) becomes available for
installation on the Aircraft; and
(iii) as soon as practicable after installation
of the same on the Aircraft but, in any
event, no later than the earlier of (1) 90
days after such installation and (2) the
Expiry Date, the Lessee removes any such
engine or part and replaces it with the
Engine or Part replaced by it or by an
engine or part complying with
Clause_8.13(a).
(c) If no Default has occurred which is continuing,
the Lessee will be entitled to install Lessee
Installed Parts on the Airframe by way of
replacement notwithstanding Clause 8.13(a)(iii) so
long as:
<PAGE>
(i) the terms of any lease, conditional sale
agreement or security agreement, as the
case may be, covering such Lessee Installed
Part will not have the effect of
prejudicing the title and interest of the
Lessor in and to the Aircraft (including
its Engines and Parts) or the interest of
Mortgagee in respect thereof under the
Mortgage;
(ii) the secured party, lessor or conditional
vendor, as the case may be, of such Lessee
Installed Part has confirmed and
acknowledged in writing (which confirmation
and acknowledgment may be contained in the
lease, conditional sale agreement or
security agreement covering such Lessee
Installed Part) to the Lessor and Mortgagee
that it will recognize the respective
rights, title and interest of the Lessor
and Mortgagee in and to the Aircraft
(including its Engines and Parts) and that
it will not seek to exercise any rights
whatever in relation thereto; and
(iii) before the Expiry Date the Lessee removes
any such Lessee Installed Part and replaces
it with the Part replaced by it or by
another part, in either case complying with
Clause 8.13(a).
(d) Lessor agrees, for the benefit of Lessee and any
mortgagee or holder of any other Security Interest
in any engine (other than an Engine) or Lessee
Installed Part owned by the Lessee, any lessor of
any engine (other than an Engine leased to the
Lessee) or Lessee Installed Part and any
conditional vendor of any engine (other than an
Engine purchased by the Lessee subject to a
conditional sale agreement or any other security
agreement) or Lessee Installed Part, that no
right, title to or interest in any such engine or
Lessee Installed Part shall be exercised or
asserted by the Lessor and the Lessor acknowledges
and confirms that it will not acquire any right,
title or interest to or in any such engine or
Lessee Installed Part as a result of its
installation on the Airframe.
8.14 NON-INSTALLED ENGINES AND PARTS
(a) The Lessee shall ensure that any Engine or Part
which is not installed on the Airframe (or any
other airframe as permitted by this Agreement) is,
except as expressly permitted by this Agreement,
properly and safely stored and kept free from
Security Interests (other than Permitted Liens),
with insurance thereon complying with the
requirements of this Agreement.
(b) Notwithstanding Clause 8.14(a), the Lessee shall
be permitted, if no Default has occurred and is
continuing, to install any Engine on an airframe
and any Part on an airframe or engine:
<PAGE>
(i) owned and operated by the Lessee free from
Security Interests, other than Permitted
Liens;
(ii) leased or hired to the Lessee pursuant to a
lease or conditional sale agreement on a
long-term basis and on terms whereby the
Lessee has full operational control of that
aircraft or engine; or
(iii) acquired or financed by the Lessee and
operated by the Lessee on terms that
ownership of that aircraft or engine, as
the case may be, pursuant to a lease,
conditional sale agreement or Security
Interest 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
title and interest of the Lessor in and to
that Engine or Part or the interest of
Mortgagee in respect thereof under the
Mortgage; and
(2) the lessor under such lease, the seller
under such conditional sale agreement or
the secured party of such Security
Interest, as the case may be, has confirmed
and acknowledged in writing (which such
confirmation and acknowledgment may be
contained in the lease, conditional sale
agreement or document creating the Security
Interest covering that Engine or Part) to
the Lessor and Mortgagee, in form and
substance satisfactory to the Lessor, that
it will recognize the respective rights,
title and interest of the Lessor and
Mortgagee to and in that Engine or Part and
that it will not seek to exercise any
rights whatever in relation thereto.
8.15 POOLING OF ENGINES AND PARTS
The 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 the Lessor
and Mortgagee, such consent not to be unreasonably
withheld in any case where an Engine or Part is leased,
let on hire or otherwise made available by the Lessee
(on terms conferring no more than a contractual right
in personam against the Lessee and not a right in rem
against such Engine or Part) pursuant to a pooling
agreement to which the Lessee is a party and:
(a) the other parties to which are reputable, solvent
commercial air carriers or the manufacturers or
suppliers of the Engine or Part (or other
reputable, solvent organizations whose business
includes the administration of and participation
in such pooling agreements or arrangements); and
<PAGE>
(b) which does not contemplate the transfer of title
to the pooled Engine or Part; and
(c) either provides that Lessor (or Mortgagee, as the
case may be) will be sole loss payee in respect of
any loss or damage to the Engine or Part, or
provides for Lessor to acquire title to a
substitute engine or part satisfying the
conditions set out in Clause_8.13(a) if the Engine
or Part is destroyed.
8.16 EQUIPMENT CHANGES
(a) The Lessee will not make any modification or
addition to the Aircraft (each an "EQUIPMENT
CHANGE"), except for an Equipment Change that:
(i) is expressly permitted by any other
provision of this Agreement, or
(ii) has the prior written approval of the
Lessor and Mortgagee (which approval shall
not be unreasonably withheld provided the
proposed Equipment Change will not, in the
reasonable opinion of the Lessor and
Mortgagee, diminish the value, utility,
condition or airworthiness of the
Aircraft), except for painting or minor
cabin interior modifications not affecting
the structure of the Airframe, any or all
of which may be made without such prior
approval.
(b) So long as no Event of Default has occurred and is
continuing, the 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 TO ENGINES AND PARTS
(a) Title to any engine installed on the Aircraft,
whether by way of replacement as the result of an
Equipment Change or otherwise (except as provided
for replacement engines pursuant to Clause 11.2
below) will not vest in Lessor.
(b) Title to all Parts installed on the Aircraft,
whether by way of replacement as the result of an
Equipment Change or otherwise (except those
installed pursuant to Clause_8.13(b) or Clause
8.15) will on installation, without further act,
vest in the Lessor subject to this Agreement free
and clear of all Security Interests other than the
Mortgage. The Lessee will at its own expense take
all such steps and execute, and procure the
execution of, all such instruments that are
necessary to ensure that title so passes to the
Lessor and is subject to the Security Interest
created by the Mortgage <PAGE> according to all
Applicable Laws. At any time when requested by
the Lessor, the Lessee will provide evidence to
the Lessor's reasonable satisfaction (including
the provision, if required, to the Lessor of one
of more legal opinions) that title has so passed
to the Lessor and is subject to the Security
Interest created by the Mortgage.
(c) The Lessor may require the Lessee to remove any
Equipment Change other than an Equipment Change
permitted under Clause 8.16(a), and to restore the
Aircraft to its condition prior to that Equipment
Change.
(d) Any Engine at any time removed from the Aircraft
will remain the property of the Lessor until, in
the event of an Engine Loss, a replacement has
been made in accordance with Clause 11.2 and title
to that replacement has passed, according to
Applicable Laws and pursuant to Clause 11.2, to
the Lessor subject to this Agreement free of all
Security Interests, whereupon title to the removed
Engine will, provided no Default has occurred and
is continuing, pass to the Lessee free of Lessor
Liens. Except as referred to in Clause 8.16(b),
any Part at any time removed from the Aircraft
will remain the property of the Lessor until a
replacement has been made in accordance with this
Agreement and until title to that replacement has
passed, according to Clause 8.17(b) and Applicable
Laws, to the Lessor subject to this Agreement free
of all Security Interests, whereupon title to the
removed Part will, provided no Default has
occurred and is continuing, pass to the Lessee
free of Lessor Liens.
8.18 THIRD PARTIES
The Lessee shall procure that no Person having
possession of the Aircraft during the Term will act in
any manner inconsistent with the Lessee's obligations
under this Agreement and that all such Persons shall
comply with those obligations as if references to
"Lessee" included a separate reference to those
Persons.
8.19 NON-DISCRIMINATION
(a) Lessee shall not discriminate against the Aircraft
in its use, maintenance or operation of the
Aircraft compared to other similar Aircraft owned
or operated by Lessee, and Lessee shall service,
repair, maintain and overhaul the Aircraft so as
to keep the Aircraft maintained in the same manner
and with the same care as used by Lessee with
similar aircraft owned or operated by Lessee.
(b) Subject to a sublease permitted pursuant to Clause
8.5, Lessee shall continue to use the Aircraft in
its regular commercial passenger operations <PAGE> until
delivery to the Return Location immediately prior
to the Final Inspection.
(c) Lessee further agrees that normal progressive
maintenance will continue to be performed on the
Aircraft throughout the Term, and no unusual
maintenance procedures or cessation of maintenance
shall occur during the one year period prior to
the Expiry Date.
9. INSURANCE
9.1 INSURANCES
The Lessee will maintain in full force and effect
during the Term insurances in respect of the Aircraft
in accordance with this Clause 9 and Schedule 5 (the
"INSURANCES") through such brokers and with such
insurers and having such deductibles and being subject
to such exclusions as are usual and customary in the
worldwide aviation insurance marketplace for major
international air carriers operating similar equipment
who are similarly situated with Lessee. The Insurances
will be effected either:
(a) on a direct basis with insurers of recognized
standing who normally participate in aviation
insurances in the leading international insurance
markets and led by reputable underwriters approved
by Lessor and the Mortgagee, or
(b) with a single insurer or group of insurers
approved by Lessor and the Mortgagee who does not
retain the risk, but effects substantial
reinsurance in the leading international insurance
markets and through brokers of recognized standing
and acceptable to Lessor and the Mortgagee for a
percentage acceptable to the Lessor and the
Mortgagee of all risks insured,
and Lessor acknowledges and confirms that the current
deductibles and exclusions, together with the existing
brokers and insurers, in respect of the insurances
maintained by Lessee on the date of this Agreement are
acceptable to it and Mortgagee.
9.2 REQUIREMENTS
<PAGE>
The Lessor's current requirements as to Insurances are
as specified in this Clause_9 and in Part 1 of Schedule
5. Except for the amount of the Agreed Value, the
Minimum Liability Coverage and the deductible under
Lessee's hull and war risk insurance policies, the
Lessor may from time to time stipulate such other
requirements for the Insurances as the Lessor
reasonably considers necessary to ensure that the scope
and level of cover is maintained in accordance with the
then prevailing industry practice in relation to
aircraft of the same type as the Aircraft and in
relation to operators of similar standing to the
Lessee. In the event that it proposes any such
stipulation, Lessor shall notify the Lessee accordingly
and the Lessor and/or its brokers will then consult in
good faith with the Lessee and the Lessee's approved
independent insurance brokers with regard to such
proposed stipulation. If, following the consultation,
the Lessee's independent insurance brokers confirm that
the proposed stipulation is in accordance with
prevailing industry practice for airlines similarly
situated to Lessee, then Lessee shall comply with the
proposed requirements at the time of its next renewal
of Insurances.
9.3 INSURANCE COVENANTS
The Lessee shall:
(a) ensure that all legal requirements as to insurance
of the Aircraft, any Engine or any Part that may
from time to time be imposed by the laws of the
State of Registration or any jurisdiction to, from
or over which the Aircraft may be flown, 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 does not become subject to
detention or forfeiture;
(ii) the Insurances remain valid and in full
force and effect; and
(iii) the interests of the Indemnitees in the
Insurances 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 Insurances or outside
any geographical limit imposed by the Insurances;
(c) comply with the terms and conditions of each
policy of the Insurances and not do, consent or
agree to any act or omission that:
(i) invalidates or may reasonably be expected
to invalidate the Insurances;
<PAGE>
(ii) renders or may reasonably be expected to
render void or voidable the whole or any
part of any of the Insurances; or
(iii) brings any particular liability within the
scope of an exclusion or exception to the
Insurances;
(d) not take out without the prior written approval of
the Lessor any insurance in respect of the
Aircraft other than those of the type required
under this Agreement unless relating solely to
hull total loss, business interruption, engine
break-down, profit commission and deductible risk
or which would otherwise have no adverse impact on
the Insurances required to be carried by Lessee
under this Agreement;
(e) commence renewal procedures at least 30 days prior
to the expiration of any of the Insurances and
provide to the Lessor and Mortgagee:
(i) if requested by the Lessor, a written
status report of renewal negotiations 14
days prior to each expiration date;
(ii) telefaxed confirmation of completion of
renewal prior to each expiration date; and
(iii) a certificate of insurance and broker's
letter of undertaking substantially in the
form set out in Parts 2 and 3 of Schedule
5, detailing the coverage and confirming
the insurers' agreement to the specified
insurance requirements of this Agreement
within seven days after each renewal date;
(f) provide to the Lessor and Mortgagee copies of
those documents evidencing the Insurances which
the Lessor and Mortgagee may reasonably request;
(g) on request, provide to the Lessor and Mortgagee
evidence that the Insurance premiums have been
paid;
(h) not make any modification or alteration to the
Insurances material and adverse to the interests
of any of the Indemnitees;
(i) be responsible for any deductible under the
Insurances; and
(j) provide any other insurance related information,
or assistance, in respect of the Insurances as the
Lessor may reasonably request.
<PAGE>
9.4 FAILURE TO INSURE
If the Lessee fails to maintain the Insurances in
compliance with this Agreement, each of the Indemnitees
will be entitled but not obligated (without prejudice
to any other rights of the Lessor under this
Agreement):
(a) to pay the premiums due or to effect and maintain
insurances satisfactory to it or otherwise remedy
the Lessee's failure in such manner (including to
effect and maintain an "owner's interest" policy)
as it considers appropriate, and any sums so
expended by it will become immediately due and
payable by the Lessee to the Lessor on demand
(such demand being made as soon as reasonably
practicable following the incurring of such
expenditure), together with interest thereon at
the Default Rate from the date of expenditure by
it up to the date of reimbursement by the Lessee
(before and after any judgment); and
(b) at any time while such failure is continuing to
require the Aircraft to remain at any airport or
to proceed to and remain at any airport designated
by it until the failure is remedied to its
reasonable satisfaction.
9.5 CONTINUING INDEMNITY
(a) Lessor may require Lessee to effect and to
maintain insurance after the Expiry Date with
respect to its liability under the indemnities in
Clause 10 for such period as the Lessor may
reasonably require (but in any event not more than
three years) providing for each Indemnitee to be
named as additional insured.
(b) Lessee's obligation under this Clause 9.5 shall
not be affected by the Lessee ceasing to be lessee
of the Aircraft or any of the Indemnitees ceasing
to have any interest in respect of the Aircraft,
and upon a Transfer pursuant to Clause 14.2 Lessee
shall continue to name the Indemnitees as
additional insureds under the Insurance policies
covered by Clause 1(d) of Schedule 5 for three
years after the Transfer date.
9.6 APPLICATION OF INSURANCE PROCEEDS
As between Lessor and Lessee:
(a) All insurance payments, up to the Agreed Value,
received as the result of a Total Loss occurring
during the Term will be paid to Mortgagee.
(b) All insurance proceeds in respect of any damage or
loss to the Aircraft, any Engine or any Part
occurring during the Term not constituting a Total
<PAGE>
Loss and involving insurance proceeds in excess of
the Damage Notification Threshold will be paid to
Mortgagee and applied in payment (or to reimburse
Lessee) for repairs or replacement property upon
Lessor and Mortgagee being reasonably satisfied
that the repairs or replacement have been effected
in accordance with this Agreement. Insurance
proceeds in amounts less than the Damage
Notification Threshold may be paid by the insurer
directly to the Lessee. Any balance remaining may
be retained by the Lessee.
(c) All insurance proceeds in respect of third party
liability will be paid to the relevant third
party.
(d) Notwithstanding Clauses 9.6(a) and (b), 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 Mortgagee
to be applied toward payment of any amounts that
may be or become payable by the Lessee in such
order as the Lessor and Mortgagee see fit or as
the Lessor and Mortgagee may elect. In the event
that the Lessee remedies any such Default to the
reasonable satisfaction of Lessor, then Lessor
shall procure that all such insurance proceeds
then held by Mortgagee in excess of the amounts
(if any) applied by Lessor in accordance with this
sub-clause (d) shall be paid promptly to Lessee.
10. INDEMNITY
10.1 GENERAL
The Lessee shall defend, indemnify and hold harmless
the Indemnitees from and against any and all claims,
proceedings, losses, liabilities, suits, judgments,
costs, expenses, penalties or fines (each a "CLAIM")
regardless of when the same is made or incurred,
whether during or after the Term (but not before):
(a) that may at any time be suffered or incurred
directly or indirectly as a result of or connected
with possession, delivery, performance,
management, registration, control, maintenance,
condition, service, repair, overhaul, leasing,
subleasing, 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, 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;
(b) that arise out of any act or omission that
invalidates or that renders voidable any of the
Insurances;
<PAGE>
(c) that 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
confidentiality owed to any Person,
but excluding any Claim to the extent that:
(1) it arises directly as a result of the
wilful misconduct or gross negligence of an
Indemnitee;
(2) it arises directly as a result of a breach
by an Indemnitee of its express obligations
under any Operative Document or as a result
of a representation or warranty given by an
Indemnitee in any Operative Document not
being true and correct at the date when, or
when deemed to have been, given or made;
(3) it constitutes or is attributable to a
Non-Indemnified Tax or Lessor Lien;
(4) it represents or is attributable to a Tax
or loss of tax benefits (the Lessee's
liabilities for which, to the extent
thereof, are set out in Clauses 5.7, 5.8
and 5.10);
(5) it constitutes or is attributable to a cost
or expense that is required to be borne by
the Lessor in accordance with another
provision of this Agreement;
(6) it results from any disposition of all or
any part of an Indemnitee's rights, title
or interest in or to the Aircraft or under
any Operative Document, unless such
disposition occurs as a consequence of an
Event of Default;
(7) it is attributable to an event occurring
after the Term unless the Claim results
from or arises out of an act or omission by
the Lessee, or any circumstance existing,
during the Term; or
(8) it is brought after the Term and relates to
a claimed patent infringement by the
Manufacturer occurring during the Term.
10.2 MITIGATION
<PAGE>
(a) The Lessor agrees that it shall, as soon as
reasonably practicable after it becomes aware of
any circumstances that would, or would reasonably
be expected to, become the subject of a claim for
indemnification pursuant to Clause 10.1, notify
the Lessee in writing accordingly. Lessor (and
any other Indemnitee seeking indemnification, as
the case may be) and Lessee shall then consult
with one another in good faith in order to
determine what action (if any) may reasonably be
taken to avoid or mitigate such Claim. The Lessee
shall have the right to take all reasonable action
(on behalf and, if necessary, in the name of the
Lessor or such other Indemnitee) in order to
resist, defend or settle (provided such settlement
is accompanied by payment) any claims by third
parties giving rise to such Claim, provided always
that the Lessee shall not be entitled to take any
such action unless adequate provision, reasonably
satisfactory to the Lessor and such other
Indemnitee, shall have been made in respect of the
third party claim and the costs thereof. The
Lessee or, if the Claim is covered by Lessee's
Insurances, the Lessee's insurers shall be
entitled to select any counsel to represent it or
them, the Lessor and such other Indemnitee in
connection with any such action, subject in the
case of Lessee to the approval of the Lessor and
such other Indemnitee (such approval not to be
unreasonably withheld) and any action taken by the
Lessee shall be on a full indemnity basis in
respect of the Lessor and such other Indemnitee.
(b) Any sums paid by the Lessee to the Lessor or any
Indemnitee in respect of any Claim pursuant to
Clause 10.1 shall be paid subject to the condition
that, in the event that the Lessor or such
Indemnitee is subsequently reimbursed in respect
of that Claim by any other Person, the Lessor or
such Indemnitee shall, provided no Default shall
have occurred and be continuing, promptly pay to
the Lessee an amount equal to the sum paid to it
by the Lessee, including any interest on such
amount to the extent attributable thereto and
received by the Lessor or such Indemnitee, less
any Tax payable by the Lessor or such Indemnitee
in respect of such reimbursement (net of any tax
benefit derived from the Claim or the
reimbursement of Lessee by Lessor).
10.3 DURATION
The indemnities contained in this Agreement will
survive and continue in full force after the Expiry
Date.
<PAGE>
11. EVENTS OF LOSS
11.1 TOTAL LOSS
(a) PRE-DELIVERY AIRFRAME LOSS: If a Total Loss
occurs prior to Delivery, 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 the Lessor will rebate to
the Lessee the Security Deposit (if theretofore
paid pursuant to Clause 5.1) or, as the case may
be, return the Letter of Credit to the Lessee.
(b) POST-DELIVERY AIRFRAME LOSS: If a Total Loss
occurs after Delivery, the Lessee will pay the
Agreed Value to Mortgagee on the earlier of
(i) the date of receipt of the insurance proceeds
payable as a result of the Total Loss, or (ii) the
60th day after the Total Loss Date (the
"SETTLEMENT DATE"), unless the Aircraft is
restored to the Lessor or the Lessee within that
period (or, in the case of a Total Loss coming
within paragraph (c) of the definition of Total
Loss and involving the loss of the Lessor's title
to the Aircraft, if both the Aircraft and the
Lessor's title thereto are restored to Lessor or,
in the case of the Aircraft, to Lessee and
Mortgagee's rights under the Mortgage are fully
restored). The receipt by Mortgagee of the
insurance proceeds in respect of the Total Loss on
or prior to the Settlement Date shall discharge
the Lessee from its obligation to pay the Agreed
Value to the Lessor pursuant to this
Clause_11.1(b), provided such proceeds are not
less than the Agreed Value. In the event that the
insurance proceeds are paid initially to the
Lessee and not to Mortgagee, they may be retained
by the Lessee if the Lessee shall have paid the
Agreed Value to Mortgagee, otherwise the Lessee
shall pay the Agreed Value to Mortgagee not later
than the next Business Day following receipt by
the Lessee of such proceeds. In the event that
the Lessee pays the Agreed Value to the Lessor or
Mortgagee in accordance with this Clause_11.1(b),
the Lessor shall promptly assign to the Lessee its
rights under the Insurances to receive the
insurance proceeds in respect of the Total Loss to
the extent that such proceeds shall not have been
paid to the Lessee. Subject to the rights of any
insurers or other third parties, upon irrevocable
payment in full to the Lessor or Mortgagee of that
amount and all other amounts that may be or become
payable to the Lessor under this Agreement, the
Lessor shall:
(i) without recourse or warranty (except as to
the absence of Lessor Liens), and without
further act, be deemed to have transferred
to the Lessee all of the Lessor's rights to
any Engines or Parts not installed when the
Total Loss occurred, all on an "as-is where
is" basis, and shall, at the Lessee's
expense, execute and deliver such <PAGE> bills of
sale and other documents and instruments as
the Lessee may reasonably request to
evidence (on the public record or
otherwise) the transfer and the vesting of
the Lessor's rights in such Engines and
Parts in the Lessee, free and clear of all
rights of the Lessor and any Lessor Liens;
and
(ii) pay to Lessee, as a rebate of prepaid Basic
Rent, and amount equal to the product of
(1) one month's Basic Rent multiplied by
(2) a fraction the numerator of which is
the number of days remaining in the then
current Rental Period and the denominator
of which is the number of days in the then
current Rental Period.
11.2 ENGINE LOSS
Upon the occurrence of an Engine Loss (including, for
the avoidance of doubt, at a time when the Engine is
not installed on the Airframe) in circumstances in
which there has not also occurred a Total Loss, the
Lessee shall give the Lessor and Mortgagee written
notice promptly upon becoming aware of the same and
shall (unless the Lessor has received the insurance
proceeds relating to such Engine Loss), within 60 days
after the Engine Loss Date, convey or cause to be
conveyed to the Lessor, as replacement for such Engine,
title to a replacement engine that is in the same or
better operating condition, has the same or greater
value and utility as the lost Engine and that complies
with the conditions set out in Clause 8.13(a). The
Lessee will at its own expense take all such steps and
execute, and procure the execution of, a full warranty
bill of sale covering such replacement engine, a
supplement to this Agreement adding such replacement
engine to the Leased Property and all such other
agreements and instruments that are necessary to ensure
that title to such Engine passes to the Lessor and is
subject to the Security Interest created by the
Mortgage and such replacement engine becomes an
"Engine", all according to Applicable Laws. At any
time when requested by the Lessor, the Lessee will
provide evidence to the Lessor's reasonable
satisfaction (including the provision, if required, to
the Lessor of one of more legal opinions) that title
has so passed to the Lessor and is subject to the
Security Interest created by the Mortgage. Upon
compliance with the foregoing title transfer
provisions, the leasing of the replaced Engine the
subject of the Engine Loss shall cease and title to
such replaced Engine shall (subject to any salvage
rights of insurers) vest in the Lessee free of Lessor
Liens. If the Lessor or Mortgagee subsequently
receives any insurance proceeds relating to such Engine
Loss, the Lessor shall promptly remit such proceeds or
cause such proceeds to be remitted to the Lessee. No
Engine Loss with respect to any Engine that is replaced
in accordance with the provisions of this Clause 11.2
shall result in any increase or decrease in Basic Rent,
Additional Rent or the Agreed Value.
11.3 REQUISITION
<PAGE>
During any requisition for use or hire of the Aircraft,
any Engine or Part that does not constitute a Total
Loss:
(a) the Basic Rent, Additional Rent and Supplemental
Rent payable under this Agreement will not be
suspended or abated either in whole or in part,
and the Lessee will not be released from any of
its other obligations under this Agreement (other
than operational obligations with which the Lessee
is unable to comply solely by virtue of the
requisition); and
(b) so long as no Default has occurred and is
continuing, the Lessee will be entitled to any
compensation payable by the requisitioning
authority in respect of the Term. The Lessee
will, as soon as practicable after the end of any
such requisition (with the Term being extended if
and to the extent that the period of requisition
continues beyond the Scheduled Expiry Date), cause
the Aircraft to be put into the condition required
by this Agreement. The 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 the
Lessor will apply such compensation in reimbursing
the Lessee for the cost of complying with its
obligations under this Agreement in respect of any
such change; provided, that, if any Default has
occurred and is continuing, the Lessor may apply
the compensation in or towards settlement of any
amounts owing by the Lessee under this Agreement.
All such sums shall be held by Mortgagee.
12. RETURN OF AIRCRAFT
12.1 REDELIVERY
On the Expiry Date or termination of the leasing of the
Aircraft under this Agreement, the Lessee shall, unless
a Total Loss has occurred, at its expense, redeliver
the Aircraft and Aircraft Documents to the Lessor at
the Redelivery Location in a condition complying with
this Clause 12 and Schedule 4, free and clear of all
Security Interests and Permitted Liens (other than
Lessor Liens).
12.2 FINAL CHECKS
Immediately prior to return of the Aircraft, Lessee
shall perform the following:
(a) Lessee shall perform (or have performed by an
Agreed Maintenance Performer) a C-Check. At
return, the Airframe will have zero Flight Hours
since such C-Check, except for the acceptance
flights and the ferry flight to the Redelivery
Location. Lessee will also weigh the Aircraft. <PAGE>
Any discrepancies revealed during such inspection
will be corrected in accordance with
Manufacturer's maintenance and repair manuals or
FAA-approved data. Lessee shall also perform
during such check, to the extent it is able, any
other work reasonably required by Lessor (and not
otherwise required under this Agreement) so long
as such work does not prevent Lessee from
returning the Aircraft on the Expiry Date or
extend the time the Aircraft is in maintenance,
and Lessor shall reimburse Lessee for the Actual
Cost of such work at Lessee's preferred customer
rates (if the work is performed by Lessee) or at
the third party rates charged Lessee.
(b) Lessee shall perform (or have performed by an
Agreed Maintenance Performer) an internal and
external corrosion inspection in accordance with
the CPCP so that CPCP inspection items will be
free of requirements for a minimum of two years
after the Expiry Date, and any discrepancies will
be addressed in accordance with the
recommendations of the Manufacturer and the SRM.
In addition, all inspected areas will be properly
treated with corrosion inhibitor as recommended by
Manufacturer.
(c) If Lessee performed any structural inspections or
tasks on a sampling basis on aircraft similar to
the Aircraft but did not perform such inspections
on the Aircraft, such work shall also be performed
on the Aircraft.
(d) Lessor shall perform, at Lessor's expense, a
videotape borescope inspection of all accessible
gas path sections of each Engine (accessible
whether by borescope port or other means),
including the low pressure and high pressure
compressors and the turbine area of such Engine.
All items beyond the Engine Manufacturer's
maintenance manual limits will be rectified at
Lessee's sole cost and expense. No Engine will be
"on watch" for any reason requiring special or out
of sequence inspection.
(e) In accordance with the Engine Manufacturer's MPD,
Lessee shall perform a maximum power assurance run
and condition, acceleration and bleed valve
scheduling checks on each Engine other than the
Spare Engine. Lessee will record and evaluate
each such Engine's performance, with Lessor and/or
its representatives entitled to be present. Each
such Engine shall pass such tests without
operational limitations throughout the operating
envelope in accordance with the Engine
Manufacturer's maintenance manual.
(f) Lessee shall perform a videotape borescope
inspection of the APU, and all items beyond the
manufacturer's recommended limits will be
rectified at Lessee's sole cost and expense.
<PAGE>
(g) Lessee shall have removed and blended all external
and interior markings.
(h) If any historical and technical records, condition
trend monitoring data, power assurance runs or
borescope inspection indicate an abnormal
acceleration in the rate of performance
deterioration or oil consumption in any Engine or
the APU, Lessee shall correct such conditions
causing the accelerated rate of deterioration.
12.3 FINAL INSPECTION
(a) During the C-check prior to redelivery of the
Aircraft, the Lessee will make the Aircraft and
Aircraft Documents available to representatives of
Lessor and the Financing Parties 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 the representatives of Lessor and
the Financing Parties to inspect, at their own
cost, the Aircraft Documents, the Aircraft and any
uninstalled Parts and Engines. The
representatives of Lessor and the Financing
Parties shall attend and conduct the Final
Inspection diligently and, without limiting their
right to conduct the full Final Inspection
permitted by this Agreement, will cooperate with
Lessee in order to complete the Final Inspection
as soon as reasonably practical.
(b) Lessor and the Financing Parties shall also be
entitled, as part of the Final Inspection, to
require Lessee to perform an acceptance flight of
up to two hours at Lessee's cost (with up to four
representatives of Lessor and the Financing
Parties on-board as observers) and such further
acceptance flights as may be necessary in the
event that the first or subsequent flights do not
confirm that the Aircraft complies with the
redelivery requirements of this Agreement.
(c) At the request of Lessor, Lessee shall perform
"bridging" maintenance procedures for the purpose
of standardizing the Aircraft to the maintenance
program of any subsequent operator of the
Aircraft; provided, that Lessor shall pay to
Lessee the Actual Cost of all "bridging"
procedures that are in excess of or not in lieu of
the "C"_Check to be performed pursuant to
Clause_12.2 and Schedule 4.
12.4 NON-COMPLIANCE
To the extent that, at the time of Final Inspection,
the condition of the Aircraft does not comply with this
Agreement, the Lessee shall immediately rectify the
non-compliance and, to the extent that the
non-compliance extends beyond the Expiry Date, the Term
will be automatically extended until the non-compliance <PAGE>
has been rectified. If, on any date more than 14 days
after the Expiry Date, the condition of the Aircraft
still does not comply with this Agreement, the Lessee
shall, at the option of the Lessor and Mortgagee
exercised by notice to Lessee, redeliver the Aircraft
to the Lessor and indemnify the Lessor, and provide
security reasonably acceptable to the Lessor and
Mortgagee for that indemnity, against the cost of
putting the Aircraft into the condition required by
this Agreement. During any extension of the Term
pursuant to this Clause 12.4, this Agreement will
remain in full force and effect, including the
obligation to pay Basic Rent (which Lessee shall pay on
a per diem basis weekly in advance); provided, however,
that Lessee shall not operate, or permit others to
operate, the Aircraft after the Expiry Date except for
acceptance flights pursuant to Clause 12.2 and a ferry
flight to the Redelivery Location.
12.5 EXPORT DOCUMENTATION
Upon redelivery and upon request by the Lessor, the
Lessee shall (a) provide to the Lessor all documents
necessary to export the Aircraft from the State of
Registration (including a valid and subsisting export
license for the Aircraft), and (b) provide any
documents reasonably requested by the Lessor in
connection with, and otherwise cooperate with, the
deregistration of the Aircraft by the Aviation
Authority, including causing the Aviation Authority to
issue an Export Certificate of Airworthiness to a
country specified by the Lessor.
12.6 ACKNOWLEDGMENT
Provided the Lessee has complied with its obligations
under this Agreement, upon redelivery of the Aircraft
by the Lessee to the Lessor at the Redelivery Location,
the Lessor will deliver simultaneously to the Lessee
the Certificate of Redelivery.
12.7 MAINTENANCE PROGRAM
(a) During the 20 day period preceding the Scheduled
Expiry Date and upon the Lessor's request, the
Lessee will provide the 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. The Lessor agrees
that it will not disclose (and will not permit its
agents to disclose) the contents of the Agreed
Maintenance Program to any Person except to the
extent necessary to monitor the 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 Expiry Date.
<PAGE>
(b) Concurrent with providing the Aircraft Documents
for Lessor's review, Lessee shall provide to
Lessor a written summary of all sampling programs
involving or affecting the Aircraft.
12.8 STORAGE
If the Lessor so requests, and subject to the
availability of the requisite space, the Lessee shall
park and store the Aircraft at a secure storage area,
which may be at the Redelivery Location or at any other
suitable facility of the Lessee selected by the Lessee,
wherever located (the "STORAGE LOCATION"), on behalf of
the Lessor for a period not exceeding 30 days from the
Expiry Date. During that period the Aircraft shall be
at the Lessor's risk (save as to any loss or damage
caused by the Lessee's wilful misconduct or gross
negligence), and the Lessee shall maintain and store
the Aircraft in accordance with the respective
manufacturer's maintenance planning document and shall
insure the Aircraft in accordance with a "ground risk
only" policy usual and customary in the worldwide
aviation insurance marketplace. All storage,
maintenance and insurance costs (which shall be at
Lessee's preferred customer rates or at the actual
third-party rates charged to Lessee) shall be borne by
the Lessor.
13. DEFAULT
13.1 EVENTS
Each of the following events will constitute an Event
of Default and a repudiation of this Agreement by the
Lessee:
(a) NON-PAYMENT: Lessee (i) fails to pay the Agreed
Value and all other amounts required under Clause
11.1(b) on the Settlement Date, (ii) fails to make
any payment of Basic Rent or Additional Rent
within five Business Days after the date on which
such payment is due, or (iii) fails to pay any
other amount payable by it under this Agreement
within five Business Days after written notice
from Lessor or Mortgagee that such amounts are
due; or
(b) MATERIAL COVENANTS: Lessee (i) fails to maintain
in full force and effect any insurance required to
be maintained under Clause 9, or (ii) transfers
possession of the Airframe or any Engine to
another Person other than as permitted by this
Agreement; or
(c) BREACH: Lessee fails to comply with any other
provision of this Agreement and, if such failure
is, in the reasonable opinion of the Lessor,
capable of remedy, the failure continues for 30
days after notice from the Lessor to the Lessee,
provided, that if such failure cannot reasonably
be <PAGE> remedied within such 30 day period and the
Lessee is diligently undertaking all necessary
remedial action, the 30 day period shall be
extended for a further 30 days; or
(d) REPRESENTATION: any representation or warranty
made (or deemed to be repeated) by the Lessee in
this Agreement or in any document or certificate
furnished to the Lessor pursuant to or in
connection with this Agreement is or proves to
have been incorrect in any material respect when
made or deemed to be repeated and the Lessee's
ability to comply with its obligations under this
Agreement, and/or the Lessor's or Mortgagee's
rights, title and interest to and in the Aircraft
and/or under this Agreement, are thereby
materially and adversely affected; or
(e) CROSS DEFAULT:
(i) any Financial Indebtedness of the Lessee or
any of its Affiliates that exceeds
$2,000,000 is not paid when due and any
applicable grace period shall have expired;
(ii) the security for any Financial Indebtedness
is enforced; or
(iii) any lease, conditional sale, installment
sale or forward purchase agreement of the
Lessee or any of its Affiliates in respect
of an aircraft is terminated as a
consequence of an event of default or
termination event (however described);
provided always, in any such case, it shall not
constitute an Event of Default under this
Agreement:
(1) if the relevant Financial Indebtedness
constitutes non-recourse borrowing or
financing; or
(2) if the non-payment, acceleration,
termination or event in question is being
contested by the Lessee in good faith and
on reasonable grounds and any declaration
of default, termination of agreement or
enforcement of security has been stayed by
a court of competent jurisdiction; 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:
(i) any authorization required by the Lessee
of, or in connection with, the execution,
delivery, validity, enforceability or
admissibility in <PAGE> evidence of this
Agreement or the performance by the Lessee of
its obligations under this Agreement; or
(ii) any airline license, air transport license,
franchise, concession, permit, certificate,
right or privilege required by the Lessee
for the conduct of its business,
is modified, withheld, revoked, suspended,
canceled, withdrawn, terminated or not renewed, or
otherwise ceases to be in full force and is not
reissued, reinstated or renewed within 30 days,
provided however that any such modification,
withholding, revocation, suspension, cancellation,
withdrawal, termination or non-renewal shall only
constitute an Event of Default if it has a
material adverse effect on the Lessee's ability to
perform its obligations under the Operative
Documents or on the Lessor's rights, title and
interest to and in the Aircraft or under this
Agreement; or
(g) INSOLVENCY:
(i) the Lessee or any of its Affiliates is, or
is deemed for the purposes of any relevant
law to be, unable to pay its debts as they
fall due or to be insolvent, or admits
inability to pay its debts as they fall
due; or
(ii) the Lessee or any of its Affiliates
suspends making payments on all or any
class of its debts or announces an
intention to do so, or a moratorium is
declared in respect of any of its
indebtedness; or
(h) BANKRUPTCY AND SIMILAR PROCEEDINGS
(i) Lessee shall consent to the appointment of
a receiver, trustee or liquidator for
itself or for a substantial part of its
property; or
(ii) Lessee shall admit in writing its inability
to pay its debts generally as they become
due, or Lessee shall make a general
assignment for the benefit of creditors; or
(iii) Lessee shall file a voluntary petition in
bankruptcy or a voluntary petition or
answer seeking reorganization in a
proceeding under 11 U.S.C. "101 et seq. or
under any other laws dealing with
bankruptcy, insolvency, moratorium or
creditors' rights generally (any or all of
which are hereinafter referred to as
"BANKRUPTCY LAWS"), or an answer admitting
the material allegations of a petition
filed against Lessee in any such
proceeding, or Lessee shall by voluntary
petition or answer consent to or fail to
oppose <PAGE> the seeking of relief under the
provisions of any Bankruptcy Laws; or
(iv) any order, judgment or decree is entered by
a court of competent jurisdiction
appointing a receiver, trustee or
liquidator of Lessee or a substantial part
of its property, or ordering a substantial
part of Lessee's property to be
sequestered, is instituted or done with the
consent of Lessee or, if instituted by
another Person, the order, judgment or
decree is not dismissed, remedied or
relinquished within 60 days; or
(v) a petition against Lessee in a proceeding
under any Bankruptcy Laws shall be filed
and shall not be withdrawn or dismissed
within 60 days thereafter, or if, under the
provisions of any Bankruptcy Laws that may
apply to Lessee, any court of competent
jurisdiction shall assume jurisdiction,
custody or control of Lessee or of any
substantial part of its property; or
(vi) any step (including petition, proposal or
convening a meeting) is taken with a view
to a composition, assignment or arrangement
with any creditors of, or the
reorganization, rehabilitation,
administration, liquidation, or dissolution
of, the Lessee or any of its Affiliates or
any other insolvency proceedings involving
the Lessee or any of its Affiliates; or
(i) OTHER JURISDICTION: there occurs in relation to
the Lessee any event anywhere which, in the
reasonable opinion of the Lessor, corresponds with
any of those mentioned in Clause 13.1(h); or
(j) UNLAWFUL: it becomes unlawful for the Lessee to
perform any of its material obligations under this
Agreement or this Agreement becomes wholly or
partly invalid or unenforceable, provided that any
such partial invalidity or unenforceability shall
only constitute an Event of Default if it has a
material adverse effect on the Lessee's ability to
perform its obligations under this Agreement or
the Lessor's rights, title and interest in and to
the Aircraft or under this Agreement; or
(k) SUSPENSION OF BUSINESS: the Lessee suspends or
ceases to carry on all or a substantial part of
its business; or
(l) DISPOSAL: the Lessee disposes or threatens to
dispose of all or a material part of its assets,
whether by one or a series of transactions,
related or not, other than pursuant to a merger or
consolidation as referred to in, and subject to,
Clause 8.8(b) or for the purpose of any other
reorganization or <PAGE> amalgamation the terms of which
have received the previous consent in writing of
the Lessor; or
(m) RIGHTS: the existence, validity, enforceability
or priority of the rights of the Lessor as owner
and lessor in respect of the Aircraft or the
rights of Mortgagee as mortgagee of the Aircraft
and assignee of this Agreement are challenged by
the Lessee or any other Person claiming by or
through the Lessee and, in the case of a Person
other than Lessee, such claim presents a material
risk of loss or forfeiture of the rights of Lessor
or Mortgagee with respect to the Aircraft; or
(n) DELIVERY: the Lessee fails to accept delivery of
the Aircraft when validly tendered pursuant to
this Agreement by the Lessor (provided that the
Lessor shall have satisfied the conditions
precedent set out in Clause 3.4); or
(o) ADVERSE CHANGE: any event or series of events
occurs which, in the reasonable opinion of the
Lessor, could be expected to have a material
adverse effect on the financial condition or
operations of the Lessee and its Affiliates or on
the ability of the Lessee to comply with its
obligations under this Agreement; or
(p) LETTER OF CREDIT: if the Lessee has elected to
deliver the Letter of Credit in lieu of the
Security Deposit pursuant to Clause 5.1(b), the
Letter of Credit ceases for any reason to be in
full force and effect or is not renewed or
replaced 30 days before its expiration in
accordance with Clause 5.1(b) and the Lessee does
not immediately provide the Lessor with cash in an
amount equal to the Security Deposit.
13.2 RIGHTS
If an Event of Default occurs, and for as long as it
shall continue, the Lessor may at its option (and
without prejudice to any of its other rights under this
Agreement or that may arise by operation of Applicable
Law), at any time thereafter:
(a) treat such event as a repudiation by the Lessee of
its obligations under this Agreement and by notice
to the Lessee with immediate effect terminate the
leasing of the Aircraft (but without prejudice to
the continuing obligations of the Lessee under
this Agreement), whereupon all rights of the
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
<PAGE>
(c) either:
(i) take possession of the Aircraft, for which
purpose the Lessor may enter any premises
belonging to, occupied by or under the
control of the Lessee (for which purpose
the Lessee hereby grants to the Lessor an
irrevocable license to the extent permitted
by Applicable Law) where the Aircraft may
be located, or cause the Aircraft to be
redelivered to the Lessor at the Redelivery
Location (or such other location as the
Lessor may require), and the Lessor is
hereby irrevocably authorized and
empowered, to the extent permitted by
Applicable Law, to direct pilots of the
Lessee or other pilots to fly the Aircraft
to that airport and will have all the
powers and authorizations necessary for
taking such action; or
(ii) by serving notice, require Lessee to
redeliver the Aircraft to Lessor at the
Redelivery Location (or such other location
as Lessor may require) in the condition
required by Clause 12 and Schedule 4.
13.3 EXPORT
If an Event of Default occurs, and for as long as it
shall continue, the Lessor may sell or otherwise deal
with the Aircraft as if this Agreement had never been
made and the Lessee will, at the request of the Lessor,
take all steps necessary to deregister the Aircraft
from the aircraft registry of the State of Registration
(if other than the United States of America) and export
the Aircraft from the country where the Aircraft is for
the time being registered or situated and any other
steps necessary to enable the Aircraft to be
redelivered to the Lessor in accordance with this
Agreement. The Lessee hereby irrevocably and by way of
security for its obligations under this Agreement
authorizes and empowers the Lessor as its
attorney-in-fact and agent (such agency being coupled
with an interest), in Lessor's own name or in the name
of Lessee, 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 Default occurs, the Lessee will indemnify and pay
to Lessor on demand against any loss, damage, expense,
cost or liability which the Lessor may sustain or incur
directly or indirectly as a result, including:
(a) all unpaid Basic Rent, Additional Rent and
Supplemental Rent then due and unpaid;
<PAGE>
(b) any loss of profit (calculated on an after-tax
basis) suffered by the Lessor because of the
Lessor's inability to place the Aircraft on lease
with another Lessee on terms as favorable to the
Lessor as this Agreement or because whatever use,
if any, to which the Lessor is able to put the
Aircraft upon its return to the Lessor, is not as
profitable (calculated on an after-tax basis) to
the Lessor as this Agreement would have been but
for such Default or non-delivery;
(c) in the event that the Aircraft is sold prior to
Lessor entering into a replacement lease, the
amount (if any) by which (i) the aggregate of (1)
the net sale proceeds (calculated by deducting the
costs of sale together with the cost of preparing
the Aircraft for sale and the repayment of any
outstanding indebtedness in relation to the
financing of the Aircraft) plus (2) the present
value of the anticipated after-tax net income to
be derived from such net sale proceeds up to the
Scheduled Expiry Date, discounted on a monthly
basis using 9.5% per annum as the discount rate,
are less than (ii) the aggregate of (1) the
present value of the anticipated net sale proceeds
(computed on the same basis as the net sale
proceeds referred to in (i)(1) above), assuming
that the Aircraft would have been sold as soon as
reasonably practicable following the Scheduled
Expiry Date plus (2) the present value of the
income that would have been derived from the
future Basic Rent payable until the Scheduled
Expiry Date, discounted on a monthly basis using
9.5% per annum as the discount rate;
(d) any amount of principal, interest, fees or other
sums whatsoever paid or payable on account of
funds borrowed in order to carry any amount unpaid
by the Lessee;
(e) any loss, premium, penalty or expense that 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 the
Lessor's financing of the Aircraft; and
(f) any loss, cost, expense or liability sustained or
incurred by the Lessor owing to the Lessee's
failure to redeliver the Aircraft on the date, at
the place and in the condition required by this
Agreement.
For the avoidance of doubt, the provisions of Clause
5.7(a) will apply to any sums payable by the Lessee
pursuant to this Clause 13.4.
13.5 WAIVER OF CERTAIN ARTICLE 2A RIGHTS
To the fullest extent permitted by Applicable Law, each
of Lessor and Lessee hereby agree that no rights or
remedies referred to in Article 2A of the Uniform
<PAGE> Commercial Code shall be conferred upon either Lessor
or Lessee unless otherwise expressly granted in this
Agreement.
14. ASSIGNMENT and TRANSFER
14.1 NO ASSIGNMENT BY LESSEE
The Lessee will not assign any of its right, title,
interests, duties, obligations or liabilities in, to or
under this Agreement, or create or permit to exist any
Security Interest (other than Permitted Liens) over any
of its rights under this Agreement, and any such
purported assignment or grant of a security interest
shall be void ab initio and of no force or effect.
14.2 LESSOR ASSIGNMENT
The Lessor may sell, assign (for purposes of this
Clause 14.2, not including an assignment for security
purposes) or transfer all or any of its rights under
this Agreement and in the Leased Property provided that
the provisions of this Clause 14.2 are satisfied (a
"TRANSFER") and the Lessor will have no further
obligations under this Agreement following a Transfer
(other than obligations that are outstanding as of the
date of such Transfer) but, notwithstanding any
Transfer, will remain entitled to the benefit of each
indemnity under this Agreement.
(a) In connection with any Transfer, the following
conditions shall apply:
(i) Lessor shall give Lessee written notice of
such Transfer at least 10 Business Days
before the date of such Transfer,
specifying the name and address of the
proposed purchaser, assignee or transferee
(the "TRANSFEREE");
(ii) the Transferee will be either (1) a Person
reasonably experienced in aircraft leasing
(or the Transferee's rights and powers
under this Agreement shall be exercised or
serviced on its behalf pursuant to an
appropriate management or servicing
agreement by a Person having such
experience) with a net worth in excess of
$15,000,000, or (2)_a Person with at least
10 years of experience (or whose principals
have at least 10 years of experience) in
aircraft leasing (or the Transferee's
rights and powers under this Agreement
shall be exercised or serviced on its
behalf pursuant to an appropriate
management or servicing agreement by a
Person having such experience) with a net
worth in excess of $7,500,000 and which
causes a United States bank, trust company
or other financial institution to agree to
hold all Additional Rent paid to Lessor in
a segregated, interest-bearing account of
such institution to be <PAGE> applied to the
obligations of Lessor pursuant to Clause
7.2 of this Agreement;
(iii) the Transferee will be a "citizen of the
United States" within the meaning of
Section_40102(a)(15) of the Federal
Aviation Law and have full corporate power
and authority to enter into and perform the
transactions contemplated by this Agreement
on the part of "Lessor";
(iv) on the Transfer date the Lessor and the
Transferee shall enter into an agreement or
agreements acceptable to Lessee in its
reasonable discretion in which the
Transferee confirms that it shall be deemed
a party to this Agreement and agrees to be
bound by all the terms of, and to undertake
all of the obligations of, the Lessor
contained in this Agreement;
(v) such Transfer shall not violate any
Applicable Law;
(vi) the Transferee shall provide to Lessee an
opinion of its regular independent counsel
as to the matters set forth in sub-clause
(iii) and as to the legality, validity,
binding effect and enforceability of the
agreement or agreements between Lessor and
Transferee referred to in sub-clause (iv);
and
(vii) Lessee shall have no obligation to consent
to any changes in this Agreement requested
by the Lessor or Transferee.
(b) Upon any Transfer, the Transferee shall be deemed
Lessor for all purposes of this Agreement, each
reference in this Agreement to the "Lessor" shall
thereafter be deemed for all purposes to refer to
the Transferee, and the transferor shall be
relieved of all obligations of the "Lessor" under
this Agreement arising after the time of such
Transfer except to the extent attributable to acts
or events occurring prior to the time of such
Transfer.
(c) Upon compliance by Lessor and a Transferee with
the terms and conditions of Clause 14.2(a), Lessee
shall at the time of Transfer, at the specific
written request of Lessor and with Lessor paying
all of Lessee's reasonable out-of-pocket costs and
expenses and, if Lessee does not use outside
counsel in connection with such Transfer, Lessee's
reasonable internal legal costs:
(i) execute and deliver to Lessor and to such
Transferee an agreement, in form and
substance satisfactory to Lessor, Lessee
and such Transferee, dated the date of such
transfer, consenting to such <PAGE> transfer,
agreeing to pay all or such portion of the
Basic Rent, Additional Rent and other
payments under this Agreement to such
Transferee or its designee as such
Transferee shall direct, and agreeing that
such Transferee shall be entitled to rely
on all representations and warranties made
by Lessee in the Operative Documents as
though such Transferee was the original
"Lessor"; provided, that such
representations shall not be deemed to be
re-made as of the date of any Transfer;
(ii) execute and deliver to Lessor or such
Transferee, as the case may be,
precautionary Uniform Commercial Code
financing statements or amendments
reflecting the interests of such Transferee
in the Aircraft and this Agreement;
(iii) deliver to Lessor and to such Transferee a
certificate, signed by a duly authorized
officer of Lessee, dated the date of such
transfer, to the effect that no Event of
Default has occurred and is continuing or,
if one is then continuing, describing such
Event of Default;
(iv) cause to be delivered to Lessor and such
Transferee certificates of insurance and
broker's letter of undertaking
substantially in the form set out in Parts
2 and 3 of Schedule 5, detailing the
coverage and confirming the insurers'
agreement to the specified insurance
requirements of this Agreement and listing
the Lessor and Transferee as additional
insureds and the Transferee as sole loss
payee (subject to other direction by
Mortgagee);
(v) deliver to Lessor and to such Transferee an
opinion of Lessee's counsel (which may be
Lessee's General Counsel), addressed to
Lessor and such Transferee to the effect
that the agreement referred to in
sub-clause (i) has been duly authorized and
executed by Lessee and constitutes the
legal, valid and binding obligation of
Lessee, enforceable against Lessee in
accordance with its terms (subject to
customary exceptions), and (if such counsel
delivered the opinion attached as Exhibit D
on the Delivery Date) to the effect that
such Transferee may rely on the opinion
delivered by such counsel in connection
with this Agreement on the Delivery Date
with the same force and effect as if such
Transferee was an original addressee of
such opinion when given;
(vi) deliver to Lessor and such Transferee
information on the location of the Airframe
and Engines at all times requested by
Lessor in order to permit the Transfer to
take place at a time and on a date so <PAGE>
as to eliminate or minimize any Taxes applicable
to the Transfer; and
(vii) such other documents as Lessor or such
Transferee may reasonably request.
14.3 GRANTS OF SECURITY INTERESTS
The Lessor shall be entitled at any time after Delivery
to grant a security interest in the Leased Property or
its right, title and interest in this Agreement (each,
an "ADDITIONAL MORTGAGE") in favor of any Person (each,
an "ADDITIONAL MORTGAGEE"). Any Additional Mortgage
may be a successor mortgage to the Security Interest
granted to Mortgagee, or may be in addition to
Mortgagee's Security Interest and previous Additional
Mortgages and with a priority senior, equal or
subordinate to Mortgagee's Security Interest and
previous Additional Mortgages as Mortgagee and previous
Additional Mortgagees may permit. In the case of any
such grant by Lessor of an Additional Mortgage to an
Additional Mortgagee in all or any portion of Lessor's
rights, title and interest in and to the Aircraft and
this Agreement, Lessee shall promptly, at the specific
written request of Lessor and with Lessor paying all of
Lessee's reasonable out-of-pocket costs and expenses:
(a) execute and delivery to Lessor and to such
Additional Mortgagee an agreement, substantially
in the form of the Consent and otherwise in form
and substance satisfactory to Lessor, such
Additional Mortgagee and Lessee, dated the date of
the grant of such Additional Mortgage,
(i) consenting to such Additional Mortgage and to
any assignment of Lessor's rights, title and
interest in and to this Agreement to such
Additional Mortgagee for security purposes,
(ii) if requested by Lessor and consented to by
the previous payee, agreeing that Lessee will pay
the Basic Rent and other payments under this
Agreement to such Additional Mortgagee, and
(iii) agreeing that such Additional Mortgagee
shall be entitled to rely on all representations
and warranties made by Lessee in this Agreement or
in any certificate or document furnished by Lessee
in connection with this Agreement Documents as
though such Additional Mortgagee was originally
the "Mortgagee";
(b) execute and deliver to Lessor and such Additional
Mortgagee such agreements as the Lessor may
reasonably require and which are acceptable to
Lessee for the purposes of effecting all necessary
amendments to this Agreement;
(c) execute and deliver to Lessor or such Additional
Mortgagee, as the case may be, precautionary
Uniform Commercial Code financing statements or
<PAGE>amendments reflecting the assignment of Lessor's
interests in the Operative Documents to such
Additional Mortgagee;
(d) deliver to Lessor and such Additional Mortgagee a
certificate, signed by a duly authorized officer
of Lessee, dated the date of the grant of the
Additional Mortgage, to the effect that no Event
of Default has occurred and is continuing or, if
one is then continuing, describing such Event of
Default;
(e) cause to be delivered to Lessor and such
Additional Mortgagee certificates of insurance and
broker's letter of undertaking substantially in
the form set out in Parts_2 and 3 of Schedule 5,
detailing the coverage and confirming the
insurers' agreement to the specified insurance
requirements of this Agreement, adding such
Additional Mortgagee as an additional insured and,
if requested by Lessor and consented to by the
previous loss payee, listing such Additional
Mortgagee as sole loss payee;
(f) deliver to Lessor and such Additional Mortgagee an
opinion of Lessee's counsel (which may be Lessee's
General Counsel), addressed to Lessor and such
Additional Mortgagee (i) to the effect that the
agreements referred to in sub-clauses (a) and (b)
have been duly authorized and executed by Lessee
and constitute the legal, valid and binding
obligations of Lessee, enforceable against Lessee
in accordance with their terms (subject to
customary exceptions), and (ii) if such counsel
delivered the opinion attached as Exhibit D on the
Delivery Date, to the effect that such Additional
Mortgagee may rely on the opinion delivered by
such counsel in connection with this Agreement on
the Delivery Date with the same force and effect
as if such Additional Mortgagee was an original
addressee of such opinion when given; and
(g) such other documents as Lessor or such Additional
Mortgagee may reasonably request.
14.4 SALE AND LEASEBACK BY LESSOR
In addition to the Transfers and grants of Security
Interests permitted by Clauses 14.2 and 14.3, but
subject to the provisions thereof, Lessor shall be
entitled to transfer its right, title and interests in
and to the Leased Property to any Person and lease the
Aircraft from such Person (a "HEAD LESSOR"), and in
such event Lessor shall retain its rights and
obligations as the "Lessor" under this Agreement. In
the event of such a sale and lease-back by Lessor,
(a) the Head Lessor shall meet the requirements for a
"Transferee" as defined in Clause 14.2(a)(ii) above,
(b) the Lessor shall be entitled to assign its rights
in this Agreement to such Head Lessor as security for
its obligations under the head <PAGE> lease, (c) the Head
Lessor shall be entitled to grant to one or more
purchase money lenders, or to an indenture trustee on
behalf of such lenders, an Additional Mortgage covering
the Leased Property and the Operative Documents,
(d) Lessee shall execute and deliver to Lessor, such
Head Lessor, such Additional Mortgagee and any trustees
on their behalf, as appropriate, the documents
specified in Clauses 14.2(c)(i) through (vi) and
Clauses 14.3(a) through (f) above, and Lessee shall
cooperate with Lessor to make such other changes to
this Agreement as Lessor may reasonably request so long
as such changes do not adversely affect the rights or
increase or extend the obligations of Lessee under this
Agreement or otherwise adversely affect Lessee and with
Lessor paying all of Lessee's reasonable out-of-pocket
costs and expenses.
14.5 FURTHER ACKNOWLEDGMENTS
Lessee further acknowledges that any Transferee or
Additional Mortgagee shall in turn have the rights of,
and be subject to the conditions to, transfer and
grants of Security Interests set forth above in this
Clause 14.
14.6 CERTAIN PROTECTIONS FOR LESSEE'S BENEFIT
The rights of Lessee under this Agreement shall be
superior to the rights of any Additional Mortgagee or
Head Lessor, and the Lessor shall require each
Additional Mortgagee and Head Lessor to agree in
writing with the Lessee that such Additional
Mortgagee's and Head Lessor's rights in and to the
Leased Property shall be subject to the terms of this
Agreement, including to the Lessee's rights to the
quiet use, possession and enjoyment provisions
contained in this Agreement. The Lessor's obligations
to perform the terms and conditions of this Agreement
shall remain in full force and effect notwithstanding
the creation of any Additional Mortgage or Head Lease.
Lessor shall not create any Additional Mortgage or
enter into any Head Lease that violates the terms of
this Clause 14.6.
15. MISCELLANEOUS
15.1 WAIVERS, REMEDIES CUMULATIVE
The rights of Lessor or Lessee under this Agreement may
be exercised as often as necessary, are cumulative and
not exclusive of that party's rights under any law and
may be waived only in writing and specifically. Delay
in exercising or non-exercise of any such right is not
a waiver of that right.
15.2 DELEGATION
Lessor or any Financing Party may delegate to any
Person or Persons all or any of the trusts, powers or
discretions vested in it by this Agreement and any such
<PAGE> delegation may be made upon such terms and conditions
and subject to such regulations (including power to
sub-delegate) as the Lessor or such Financing Party,
respectively, in its absolute discretion thinks fit.
15.3 APPROPRIATION
If any sum paid or recovered in respect of the
liabilities of the Lessee under this Agreement is less
than the amount then due, the Lessor may apply that sum
to amounts due under this Agreement in such proportions
and order and generally in such manner as the Lessor
may determine.
15.4 CURRENCY INDEMNITY
(a) If the Lessor receives an amount in respect of the
Lessee's liability under this Agreement or if such
liability is converted into a claim, proof,
judgment or order in a currency other than
Dollars:
(i) the Lessee will indemnify the Lessor, as an
independent obligation, against any loss
arising out of or as a result of such
conversion;
(ii) if the amount received by the Lessor, when
converted into Dollars (at the market rate
at which the Lessor is able on the relevant
date to purchase Dollars in New York City
with that other currency) is less than the
amount owed in Dollars, the Lessee will,
forthwith on demand, pay to the Lessor an
amount in Dollars equal to the deficit; and
(iii) the Lessee will pay to the Lessor on demand
any exchange costs and Taxes payable in
connection with the conversion.
(b) The Lessee waives, to the extent permitted by
Applicable Law, any right it may have in any
jurisdiction to pay any amount under this
Agreement in a currency other than Dollars.
15.5 PAYMENT BY THE LESSOR
The Lessor will not be obliged to pay any amounts to
the Lessee under this Agreement so long as any sums
which are then due from the Lessee under this Agreement
remain unpaid and any such amounts which would
otherwise be due will fall due only if and when the
Lessee has paid all such sums.
15.6 SEVERABILITY
<PAGE>
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.
15.7 REMEDY
If the Lessee fails to comply with any provision of
this Agreement, the Lessor may, without being in any
way obliged to do so or responsible for so doing and
without prejudice to the ability of the Lessor to treat
the non-compliance as a Default, effect compliance on
behalf of the Lessee, whereupon the Lessee shall become
liable to pay immediately any sums expended by the
Lessor together with all costs and expenses (including
reasonable legal costs) necessarily incurred in
connection therewith.
15.8 EXPENSES
(a) The Lessor and the Lessee shall each bear their
respective expenses (including legal, professional
and out-of-pocket expenses) incurred or payable in
connection with the negotiation, preparation and
execution of this Agreement, and shall share
equally the fees and expenses of Special FAA
Counsel in connection with the transactions
contemplated by this Agreement, including in
connection with the Assignment and Mortgage.
Lessor shall otherwise bear and be responsible for
all fees and expenses in connection with the
importation and registration of the Aircraft and
the registration and recording of the Assignment
and Mortgage.
(b) The Lessee shall pay to the Lessor on demand all
expenses (including legal, professional and
out-of-pocket expenses) incurred or payable by the
Lessor in connection with the granting of any
waiver or consent under this Agreement.
(c) The Lessee will pay to the Lessor on demand all
expenses (including reasonable legal, survey and
other costs) payable or incurred by the Lessor in
contemplation of, or otherwise in connection with,
the enforcement of or preservation of any of the
Lessor's rights under this Agreement, or in
respect of the repossession of the Aircraft.
(d) The Lessor will pay to the Lessee on demand all
expenses (including reasonable legal costs)
payable or incurred by the Lessee in contemplation
<PAGE> of, or otherwise in connection with, the
enforcement of or preservation of any of the
Lessee's rights under this Agreement.
15.9 TIME OF ESSENCE
The time stipulated in this Agreement for all payments
payable by the Lessee to the Lessor and for the
performance of the Lessee's other obligations under
this Agreement that are due on a specified or
determinable date will be of the essence of this
Agreement (subject always to any applicable grace
period).
15.10 NOTICES
(a) All notices and other communications given under
or in connection with this Agreement shall be in
writing (including telegram) and shall be deemed
to have been received when delivered to the
address specified in clause 15.10(b).
(b) All such notices, requests, demands and other
communications shall be sent:
(i) to Lessor at:
c/o Unicapital Air Group, Inc.
1900 Summit Tower Blvd., Suite 860
Orlando, Florida 32810
Attention: Mr. Samuel J. Thornton
Telephone: +1-407-916-8000
Telefax: +1-407-916-8001
copied to Mortgagee at:
FINOVA Capital Corporation
1850 North Central Avenue
Phoenix, Arizona 85002
Attention: Vice President -
Operations Management
Telefax: +1-602-262-1551
(ii) to Lessee at:
7000 Squibb Road, 3rd Floor
Mission, Kansas 66202
Attention: Mr. William A. Garrett, III
Telephone: +1-913-789-1769
Telefax: +1-913-789-1779
or to such other address as shall have been notified by
one party to the other in the manner set out in this
Clause 15.10.
15.11 LAW AND JURISDICTION
<PAGE>
(a) THIS AGREEMENT SHALL, IN ALL RESPECTS, INCLUDING
ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE, BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS ENTERED INTO IN THE STATE
OF NEW YORK BY RESIDENTS OF SUCH STATE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE.
(b) The Lessor and the Lessee hereby irrevocably agree
to submit to the non-exclusive jurisdiction of the
United States District Court for the Southern
District of New York and the Supreme Court of the
State of New York located in the Borough of
Manhattan, County of New York (the "Agreed
Courts") in the event of any claims or disputes
arising under this Agreement. Such submission to
jurisdiction shall not be construed so as to limit
the right of either party to take proceedings
against the other in whatever jurisdiction shall
to it seem fit nor shall the taking of proceedings
in any one or more jurisdictions preclude the
taking of proceedings in any other jurisdiction,
whether concurrently or not. Final judgment
against Lessor or Lessee in any such suit shall be
conclusive and may be enforced in any other
jurisdiction by suit on the judgment or as
otherwise permitted by Applicable Law, a certified
or true copy of which shall be conclusive evidence
of the facts and of the amount of any indebtedness
or liability of Lessor or Lessee. Each of Lessor
and Lessee hereby irrevocably waives any objection
which it may now or hereafter have to the laying
of venue in any suit, action or proceeding brought
in any Agreed Court, and irrevocably waives any
claim that any such suit, action or proceeding
brought in any Agreed Court has been brought in an
inconvenient forum.
(c) THE LESSEE AND THE LESSOR HEREBY WAIVE TRIAL BY
JURY IN ANY JUDICIAL PROCEEDING TO WHICH THEY ARE
PARTIES INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER ARISING OUT OF OR RELATING TO THIS
AGREEMENT.
(d) Without prejudice to any other mode of service,
each of the Lessor and the Lessee consents to the
service of process relating to any proceedings
involving, directly or indirectly, any matter
arising out of or relating to this Agreement by
U.S. Postal Service or Irish postal service
registered mail (prepaid, return receipt
requested) of a copy of the process to the
Lessee's address identified in Clause 15.10(b).
15.12 SOLE AND ENTIRE AGREEMENT
This Agreement is the sole and entire agreement between
the Lessor and the Lessee in relation to the leasing of
the Aircraft, and supersedes all previous <PAGE> agreements in
relation to that leasing. The terms and conditions of
this Agreement can only be varied by an instrument in
writing executed by both parties or by their duly
authorized representatives.
15.13 INDEMNITIES
All rights expressed to be granted to each Indemnitee
under this Agreement (other than any Financing Party)
are given to the Lessor as agent for and on behalf of
that Indemnitee.
15.14 COUNTERPARTS
This Agreement may be executed in one or more
counterparts, each of which shall constitute an
original and, when taken together, all of which shall
constitute one and the same Agreement.
15.15 CONFIDENTIALITY
Neither the Lessor nor the Lessee shall, without the
other's prior written consent, communicate or disclose
the terms of this Agreement or any information or
documents furnished pursuant to this Agreement (except
to the extent that the same are within the public
domain) to any third party (other than any Financing
Party, any prospective Transferee, any material
investor in the Lessee or creditor in Lessee,
Additional Mortgagees or Head Lessors, the respective
external legal advisers, auditors, insurance brokers or
underwriters of Lessor, Lessee and such parties, and
the Manufacturer and Engine Manufacturer); provided,
that disclosure will be permitted, to the extent
required:
(a) pursuant to an order of any court of competent
jurisdiction; or
(b) pursuant to any procedure for discovery of
documents in any proceedings before any such
court; or
(c) pursuant to any law or regulation having the force
of law; or
(d) pursuant to a lawful requirement of any authority
with whose requirements the disclosing party is
legally obliged to comply; or
(e) in order to perfect any assignment of any
assignable warranties.
[SIGNATURE PAGE FOLLOWS]
<PAGE>
IN WITNESS WHEREOF Lessor and Lessee have executed this Lease
Agreement 22120 on the date shown at the beginning of this
Agreement.
SIGNED on behalf of
AIRCRAFT 22120, INC.
By:_________________________
Name:
Title:
SIGNED on behalf of
VANGUARD AIRLINES, INC.
By:_________________________
Name:
Title:
[FINOVA Capital Corporation hereby acknowledges receipt
of this Original Executed Counterpart of Lease Agreement 22120 in
Phoenix, Arizona on this ____ day of August 1999.
FINOVA CAPITAL CORPORATION
By:_________________________
Name:
Title]1/
1/ This text will only appear on one counterpart of Lease
Agreement 22120.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THE SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
COMPANY'S FORM 10-Q FOR THE QUARTER ENDED SEPTEMBER 30, 1999
</LEGEND>
<S> <C>
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