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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q/A
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D)
OF SECURITIES EXCHANGE ACT OF 1934
For the quarter ended December 31, 1994 Commission File
Number 0-15495
MESA AIR GROUP, INC.
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(Exact name of registrant as specified in its charter)
New Mexico 85-0302351
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2325 East 30th Street, Farmington, New Mexico 87401
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (505) 327-0271
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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
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On July 7, 1995, the Registrant had outstanding 32,859,261 shares of Common
Stock.
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Item 6. Exhibits and Reports on Form 8-K
Exhibit 10.71 - Omnibus Agreement dated December 31, 1994
by and between United Air Lines, Inc. and
Mesa Airlines, Inc. This Exhibit is
subject to a confidential treatment
request and certain confidential
portions have been omitted as
indicated by the bracketed language
[CONFIDENTIAL PORTION DELETED] and
filed separatly with the SEC.
Exhibit 10.72 - Aircraft Purchase and Sale Agreement dated
December 31, 1994 by and between United
Air Lines, Inc. and Mesa Airlines, Inc.
This exhibit is subject to a confidential
treatment request and certain confidential
portions have been omitted as indicated by
the bracketed language [CONFIDENTIAL
PORTION DELETED] and filed separatly
with the SEC.
Exhibit 10.74 - Amendment of United Express Agreement dated
December 31, 1994. This Exhibit is subject
to a confidential treatment request and
certain confidential portions have been
omitted as indicated by the bracketed
language [CONFIDENTIAL PORTION DELETED] and
filed separatly with the SEC.
Exhibit 10.76 - First Amendment to Omnibus Agreement dated
January 20, 1995 by and between United
Air Lines, Inc. and Mesa Airlines, Inc. This
Exhibit is subject to a confidential
treatment request and certain confidential
portions have been omitted as indicated by
the bracketed language [CONFIDENTIAL PORTION
DELETED] and filed separatly with the SEC.
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SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Mesa Air Group, Inc.
Registrant
Date: 7/24/95 /s/ W. Stephen Jackson
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W. Stephen Jackson
Chief Financial Officer, Treasurer and
Vice President of Finance
(Principal Accounting Officer)
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EXHIBIT INDEX
MESA AIR GROUP
COMMISSION FILE NO. 0-15485
FORM 10-Q/A
FOR THE QUARTER ENDED DECEMBER 31, 1994
<TABLE>
<CAPTION>
NO. DESCRIPTION
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<S> <C>
Exhibit 10.71 - Omnibus Agreement dated December 31, 1994
by and between United Air Lines, Inc. and
Mesa Airlines, Inc. This Exhibit is
subject to a confidential treatment
request and certain confidential
portions have been omitted as
indicated by the bracketed language
[CONFIDENTIAL PORTION DELETED] and
filed separatly with the SEC.
Exhibit 10.72 - Aircraft Purchase and Sale Agreement dated
December 31, 1994 by and between United
Air Lines, Inc. and Mesa Airlines, Inc.
This exhibit is subject to a confidential
treatment request and certain confidential
portions have been omitted as indicated by
the bracketed language [CONFIDENTIAL
PORTION DELETED] and filed separatly
with the SEC.
Exhibit 10.74 - Amendment of United Express Agreement dated
December 31, 1994. This Exhibit is subject
to a confidential treatment request and
certain confidential portions have been
omitted as indicated by the bracketed
language [CONFIDENTIAL PORTION DELETED] and
filed separatly with the SEC.
Exhibit 10.76 - First Amendment to Omnibus Agreement dated
January 20, 1995 by and between United
Air Lines, Inc. and Mesa Air Lines, Inc. This
Exhibit is subject to a confidential
treatment request and certain confidential
portions have been omitted as indicated by
the bracketed language [CONFIDENTIAL PORTION
DELETED] and filed separatly with the SEC.
</TABLE>
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"CONFIDENTIAL TREATMENT REQUESTED"
REDACTED VERSION
<PAGE> 2
EXHIBIT 10.71
OMNIBUS AGREEMENT
THIS OMNIBUS AGREEMENT (this "Agreement" ), made and entered into as of this
31st day of December, 1994, by and among Air Wisconsin, Inc., a Wisconsin
corporation ("Air Wisconsin"), United Air Lines, Inc., a Delaware corporation,
("United"), First Security Bank of Utah, national association, not in its
individual capacity, except as expressly provided, but solely as Operating
Trustee under the Operating Trust Agreement (as defined in the Definition Annex
of the form of operating lease agreement attached as Exhibit A hereto)
("Operating Trustee"), and Mesa Airlines, Inc., a New Mexico corporation
("Mesa").
WHEREAS, the parties desire to complete the definitive agreements and
documentation concerning the sale of certain aircraft and spare parts, and
sublease of certain other aircraft, as contemplated by the Agreement in
Principle dated as of October 16, 1994 (with the exhibits thereto, the "AIP")
among Air Wisconsin, United and Mesa;
NOW, THEREFORE, in consideration of the mutual covenants, understandings and
agreements set forth herein and other good and valuable consideration, the
parties hereto agree as follows:
SECTION 1. DEFINITIONS.
Except as otherwise defined in this Agreement, terms used herein in
capitalized form shall have the meanings attributed thereto in, as the context
may require, either (A) the aircraft purchase and sale agreement dated as of the
date hereof between Air Wisconsin, as seller, and Mesa, as buyer (the "Aircraft
Purchase and Sale Agreement"), or (B) the expendable and rotables spare parts
purchase and sale agreement dated as of the date hereof between Air Wisconsin,
as seller, and Mesa, as buyer (the "Spare Parts Purchase and Sale Agreement"),
or (C) the expanded partner agreement dated February 15, 1990 between United and
Mesa (as amended, the "United Express Agreement"), as the same is amended as of
the date hereof by the amendment to same dated as of the date hereof between
United and Mesa (the "United Express Agreement Amendment"), or (D) the letter
agreement relating to Denver International Airport dated as of the date hereof
between United and Mesa (as amended, the "DIA Letter Agreement"), (E) the form
of Operating Lease Agreement (the "Sublease Form") between Operating Trustee, as
lessor ("Lessor"), and Mesa, as lessee ("Lessee"), which Sublease Form is
attached hereto as Exhibit A, or (F) the form of letter agreement among Air
Wisconsin, United, Operating Trustee and Mesa relating to Mesa's payment of
maintenance reserves (the "Maintenance Reserves Agreement Form"), which
Maintenance Reserves Letter Agreement Form is attached hereto as Exhibit B. Each
of the Aircraft Purchase and Sale Agreement, Spare Parts Purchase and Sale
Agreement, United Express Agreement Amendment, DIA Letter Agreement and this
Agreement are herein referred to, collectively, as the "Closing Date Operative
Documents", and each, individually, as a "Closing Date Operative Document".
Unless the context otherwise requires, any reference herein to any of the
Closing Date Operative Documents refers to such document as
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it may be amended from time to time in accordance with its terms and the terms
of each other agreement restricting the amendment thereof.
SECTION 2. CLOSING DATE; CLOSING DATE OPERATIVE DOCUMENTS.
A. Closing Date. The parties acknowledge and agree that the Closing Date
Operative Documents, and each of them, will be executed and delivered by the
parties to one another on December 30, 1994 (the "Closing Date"); provided, the
Closing Date shall be automatically extended for an additional period of up to
five (5) days, to the extent necessary to complete the documentation. Execution
and delivery of the Closing Date Operative Documents by the parties to one
another will occur, or be deemed to occur, at United's world headquarters at
1200 East Algonquin Road, Elk Grove Township, Illinois.
B. Aircraft Purchase and Sale Agreement. Subject to the terms and conditions
of this Agreement, on the Closing Date Air Wisconsin and Mesa will execute and
deliver to one another the Aircraft Purchase and Sale Agreement, in the form
attached as Exhibit C hereto, UAL and Mesa will enter into an aircraft purchase
and sale agreement, in the form attached hereto as Exhibit A, pursuant to which
Air Wisconsin agrees to sell to Mesa, and Mesa agrees to purchase from Air
Wisconsin, ten (10) certain de Havilland model DHC-8-100 and DHC-8-300 aircraft
(for the purposes of this Agreement only, each, individually, a "Sale Aircraft",
and collectively, the "Sale Aircraft"), as more specifically described in the
Aircraft Purchase and Sale Agreement.
C. Spare Parts Purchase and Sale Agreement. Subject to the terms and
conditions of this Agreement, on the Closing Date Air Wisconsin and Mesa will
execute and deliver to one another the Spare Parts Purchase and Sale Agreement,
in the form attached as Exhibit D hereto.
D. United Express Agreement Amendment. Subject to the terms and conditions
of this Agreement, on the Closing Date United and Mesa will execute and deliver
to one another the United Express Agreement Amendment, in the form attached as
Exhibit E hereto.
E. DIA Letter Agreement. Subject to the terms and conditions of this
Agreement, on the Closing Date United and Mesa will execute and deliver to one
another the DIA Letter Agreement, in the form attached as Exhibit F hereto.
SECTION 3. CLOSING DATE CONDITIONS PRECEDENT.
A. Conditions Precedent to Air Wisconsin's and United's Obligations. The
obligations of Air Wisconsin and United to execute and deliver this Agreement
and to consummate the transactions pursuant to this Agreement shall be subject
to the satisfaction, or Air Wisconsin's and United's respective waiver, of each
of the following by the Closing Date:
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1. The approvals of the respective boards of directors of each of
United, Air Wisconsin and UAL Corporation;
2. Air Wisconsin's and United's successful negotiation and completion,
on terms satisfactory to Air Wisconsin and United, of each of the Closing
Date Operative Documents and each of the Sublease Form and Maintenance
Reserves Agreement Form;
3. Execution and delivery of each of the Closing Date Operative
Documents by Mesa;
4. Execution and delivery of this Agreement by Operating Trustee; and
5. Payment by Mesa of the "Supplemental Deposit" (as such term is
defined below), in addition to Mesa's prior payment of the "Initial Deposit"
(as such term is defined below).
B. Conditions Precedent to Mesa's Obligations. The obligation of Mesa to
execute and deliver this Agreement and to consummate the transactions pursuant
to this Agreement shall be subject to the satisfaction, or Mesa's waiver, of
each of the following by the Closing Date:
1. The approval of the board of directors of Mesa;
2. Mesa's successful negotiation and completion, on terms satisfactory
to Mesa, of each of the Closing Date Operative Documents and each of the
Sublease Form and Maintenance Reserves Agreement Form;
3. Execution and delivery of each of the Closing Date Operative
Documents by each of United and Air Wisconsin;
4. Execution and delivery of this Agreement by Operating Trustee; and
5. There shall have been no material deterioration of the "Aircraft"
(as defined in the Aircraft Purchase and Sale Agreement) and "Spare Parts"
(as defined in the Spare Parts Purchase and Sale Agreement).
C. Conditions Precedent to Operating Trustee's Obligations. The obligation
of Operating Trustee to execute and deliver this Agreement and to consummate the
transactions pursuant to this Agreement shall be subject to the satisfaction, or
Operating Trustee's waiver, of each of the following by the Closing Date:
1. The receipt by Operating Trustee of a letter of direction from Air
Wisconsin directing Operating Trustee's execution and delivery of this
Agreement;
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2. Operating Trustee's successful negotiation and completion, on terms
satisfactory to Operating Trustee, of this Agreement, including but not
limited to each of the Sublease Form and Maintenance Reserves Agreement
Form; and
3. Execution and delivery of this Agreement by each of United, Air
Wisconsin and Mesa.
SECTION 4. DEPOSITS.
A. Initial Deposit. Air Wisconsin and United acknowledge and confirm that
Mesa has paid an initial deposit of Two Million United States Dollars (US
$2,000,000.00) for the Aircraft (the "Initial Deposit") in connection with the
execution and delivery of the AIP.
B. Supplemental Deposit. A supplemental deposit of Eighteen Million United
States Dollars (US $18,000,000.00) from Mesa to Air Wisconsin for the Aircraft
(the "Supplemental Deposit") is due on the Closing Date. The Supplemental
Deposit shall be non-refundable to Mesa, and at the time of its payment the
Initial Deposit shall become non-refundable to Mesa.
SECTION 5. COMMITMENT TO ENTER INTO SUBLEASES.
A. Sublease of Two Aircraft. (i) Subject to the terms and conditions of this
Agreement, on their respective "Aircraft Delivery Dates" (as such term is
defined below), Operating Trustee, as lessor ("Lessor"), and Mesa, as lessee
("Lessee") will enter into two separate aircraft operating lease agreements,
substantially consistent with the Sublease Form attached hereto as Exhibit A,
pursuant to which Lessor will agree to sublease to Mesa, and Mesa will agree to
sublease from Lessor, one (1) de Havilland model DHC-8-100 aircraft bearing U.S.
registration number N415AW, and one (1) de Havilland model DHC-8-300 aircraft
bearing U.S. registration number N430AW (for the purposes of this Agreement
only, each, individually, a "Sublease Aircraft", and collectively the "Sublease
Aircraft"); provided, the parties understand and acknowledge that: (1) the
Sublease Form has been drafted to apply to the sublease of N415AW, and thus the
operating lease agreement for the sublease of N430AW will have to be modified as
necessary to identify the different aircraft and equipment serial numbers, the
different definitions applicable for "Head Lease," "Security Agreement," and
"Security Agreement Supplement" which are included in Attachment A to the
Definitions Annex of the Sublease Form, and similar conforming changes; and (2)
the Sublease Form has been drafted without obtaining the comments or consents of
the "Head Lessor" or the "Security Trustee" or any of the other parties which
have an interest in the "Head Lease" (as such terms are defined in the Sublease
Form, with respect to Sublease Aircraft N415AW; and as such terms are conformed
to apply to the head lease agreement dated June 1, 1991 between Head Lessor and
Operating Trustee, with respect to Sublease Aircraft N430AW), and the parties
agree that they will cooperate in a reasonable manner in order to obtain the
consents of such parties to such subleases to Mesa.
[CONFIDENTIAL PORTION DELETED].
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C. Consents. Promptly after execution and delivery of this Agreement, the
parties will use their respective best reasonable efforts to obtain the consent
of the "Head Lessor," the "Security Trustee" and the other parties which have an
interest in the "Head Lease" of such Sublease Aircraft (as such terms are
defined in the Sublease Form, with respect to Sublease Aircraft N415AW; and as
such terms are conformed to apply to the head lease agreement dated June 1, 1991
between Head Lessor and Operating Trustee, with respect to Sublease Aircraft
N430AW); provided, if any such necessary consent is not received by March 15,
1995, then the parties to this Agreement shall proceed to consummation of the
remaining provisions of this Agreement without the affected Sublease Aircraft as
a part of the contemplated transaction, but with the remaining provisions
contemplated by this Agreement intact. In connection with a sale, lease or
disposition of all of Mesa's Sale Aircraft of the same model type as a Sublease
Aircraft to another air carrier, Air Wisconsin agrees to use its best reasonable
efforts to assist Mesa in obtaining the consent of the Head Lessor and Security
Trustee to either the sub-sublease of such Sublease Aircraft, or the assignment
of Mesa's interests as sublessee under such sublease, to such other air carrier,
provided (a) such other carrier is reasonably acceptable to Lessor (b) Mesa
satisfies the requirements of Section 7(b)(vii) (and clauses (A) through (J)
thereunder, which shall be deemed to apply to either a sub-sublease or an
assignment of a sublease to the same extent as they apply to a sublease) of the
Head Lease to Air Wisconsin's reasonable satisfaction; (b) all necessary action
shall be taken that is required to continue the perfection of Lessor's title and
interest in and to the Aircraft and Lessor's rights under this Lease as
assigned; (c) if requested in writing by Lessor, Lessor shall receive a
favorable opinion of Lessee's counsel and sub-sublessee's/assignee's counsel
with respect to such sub-sublease/assignment of such sublease and matters
comparable to those described in clause (J) of Section 7(b)(vii) of the Head
Lease; (d) the rights of any transferee who receives possession by reason of
such a transfer shall be expressly subject and subordinate to all the terms of
the Head Lease and, if applicable, the sublease and (including, without
limitation, the restrictions on the use of the Aircraft and Lessor's right to
terminate such sublease upon an "Event of Default" under such sublease (as such
term is defined in such sublease) and to obtain possession of such Sublease
Aircraft without regard to any such transfer), and Mesa shall remain primarily
liable hereunder for the performance of all the terms of such sublease Lease to
the same extent as if such transfer had not occurred and the terms of such
transfer shall not permit any transferee to take any action not permitted to be
taken by Mesa hereunder with respect to the Aircraft.
D. Lessor's Option. For either Sublease Aircraft, Lessor may elect, at any
time up to thirty (30) days prior to the relevant Delivery Date of the Sublease
Aircraft, to assign Lessor's rights, interests, liabilities and obligations as
lessee under its respective aircraft operating lease agreement applicable to
such Sublease Aircraft (free and clear of all liens other than the lessor's
liens under such operating lease agreements), in which case Mesa will assume all
such rights, interests, liabilities and obligations, beginning at the time of
delivery of the respective Sublease Aircraft to Mesa.
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SECTION 6. AIRCRAFT DELIVERY DATES.
Air Wisconsin will determine the order of delivery of the Sale Aircraft and
the "Sublease Aircraft" (for the purposes of this Agreement only, such Sale
Aircraft and Sublease Aircraft, collectively, the "Aircraft," and each,
individually, an "Aircraft"), which Aircraft will have the following initially
scheduled delivery dates: first two (2) Aircraft, January 4, 1995 (provided, if
by that date Mesa has not obtained an air carrier operating certificate and
operations specification issued by the Federal Aviation Administration under
Part 121 of the FAR or successor provisions authorizing Mesa's operation of the
Aircraft, then Air Wisconsin will use reasonable efforts to encourage Atlantic
Coast Airlines, Inc. ("ACA") to provide, at Mesa's cost, ACA flight crews
sufficient to operate such Aircraft pursuant to ACA's operations specification
for a period of up to one month after sale and delivery of these two Aircraft to
Mesa); second two (2) Aircraft, January 17, 1995; fifth (5th) Aircraft, February
10, 1995; sixth (6th) Aircraft, February 15, 1995; seventh (7th) Aircraft,
February 24, 1995; eighth (8th) and ninth (9th) Aircraft, March 3, 1995; tenth
(10th) Aircraft, March 15, 1995; and the last two (2) Aircraft, March 31, 1995
(hereinafter, collectively, the "Delivery Dates"); provided, Air Wisconsin will
work with Mesa in good faith, and will adjust the initially scheduled Delivery
Dates, as necessary, to provide for a commercially reasonable transition of the
Aircraft and their entry into Mesa's revenue service; provided, further, the
parties recognize that Air Wisconsin also will need to adjust the initially
scheduled Delivery Dates, as necessary, to provide for a commercially reasonable
phase-out of the Aircraft's operation in ACA's revenue service and their return
under ACA's current leases and subleases with Operating Trustee, and that, if a
conflict arises between the terms of this "provided" clause and the terms of the
immediately preceding "provided" clause, the terms of this "provided" clause
will take precedence: provided, finally, notwithstanding the foregoing
"provided" clauses, in no event will the delivery of any of the first ten (10)
Aircraft be adjusted to a Delivery Date later than March 15, 1995, and in no
event will the delivery of any of the last two (2) Aircraft be adjusted to a
Delivery Date later than April 15, 1995.
[CONFIDENTIAL PORTION DELETED].
SECTION 8. PAINTING OF AIRCRAFT.
Air Wisconsin shall, at its own expense, paint (or cause the painting of)
any seven (7) of the Aircraft to be delivered and shall use reasonable efforts
(given the relevant Delivery Dates and the commercial availability of slots with
its chosen third party painting provider) to paint or cause the painting, at its
own expense, the remainder of the Aircraft prior to the delivery of each
Aircraft to Mesa. If any one or more of the last five (5) Aircraft substantially
are otherwise ready for delivery to Mesa and there is insufficient time to have
that particular Aircraft painted, then Air Wisconsin may elect to proceed with
the delivery of such Aircraft without pre-delivery painting, and for each
unpainted Aircraft Air Wisconsin will reimburse Mesa for the cost of repainting
the Aircraft. Upon Mesa's notification that Mesa has repainted an Aircraft, Air
Wisconsin will immediately pay to Mesa the invoiced cost for such Aircraft,
subject to an aggregate maximum amount payable
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by Air Wisconsin for all of the Aircraft repainted by Mesa equal to the product
of (a) the number of Aircraft painted post-delivery by Mesa, multiplied by (b)
the average dollar amount per Aircraft that Air Wisconsin has to that date been
charged to have certain of the other Aircraft painted. Air Wisconsin and United
agree that Mesa shall be entitled to operate the unpainted Aircraft in United
Express operations in the livery in which it is delivered until such time as the
Aircraft would be repainted by Mesa in the ordinary course of business.
SECTION 9. REPRESENTATIONS AND WARRANTIES.
A. (b) Representations and Warranties of Operating Trustee. Operating
Trustee, in its individual capacity, hereby represents and warrants, as of
the Closing Date, to Air Wisconsin, United and Mesa, which representations
and warranties shall survive the execution and delivery of this Agreement
and the delivery of the Sublease Aircraft, that:
(i) Due Organization. Operating Trustee, in its individual
capacity, is a national banking association duly organized and validly
existing and in good standing under the laws of the United States of
America, is a "citizen of the United States" within the meaning of
Section 101(16) of the Federal Aviation Act and the rules and
regulations of the Federal Aviation Administration thereunder, and has
the full corporate power, authority and legal right under the laws of
the United States of America pertaining to its trust and fiduciary
powers to execute, deliver and carry out the terms of this Agreement
and each of the related agreements to which it is or will be a party;
(ii) Due Authorization; No Conflict. The execution, delivery and
performance by Operating Trustee of this Agreement and each of the
related agreements to which Operating Trustee is or will be a party
have been duly authorized by Operating Trustee and will not violate its
articles of association or by-laws or the provisions of any indenture,
mortgage, contract or other agreement to which it is a party or by
which it is bound; and
(iii) Enforceability. This Agreement has been duly executed and
delivered by Operating Trustee and, assuming the due authorization,
execution and delivery thereof by the other parties thereto, this
Agreement constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws
affecting the rights of creditors generally and to general equity
principles.
B. Representations and Warranties of Air Wisconsin. Air Wisconsin
hereby represents and warrants to Operating Trustee, United and Mesa, which
representations and warranties shall survive the execution and delivery of
this Agreement and the delivery of the Aircraft, that:
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(i) Due Organization. Air Wisconsin is a corporation duly organized
and validly existing and in good standing under the laws of the State
of Wisconsin and has the corporate power and authority, and all
licenses, rights, permits, certificates, franchises and other
privileges, necessary to perform its obligations under this Agreement
and each of the other Closing Date Operative Agreements to which it is
a party and each of the related agreements to which it is or will be a
party;
(ii) Due Authorization; No Conflict. The execution, delivery and
performance by Air Wisconsin of this Agreement and each of the other
Closing Date Operative Agreements to which it is a party and each of
the related agreements to which it is or will be a party have been duly
authorized by all necessary corporate action on the part of Air
Wisconsin and do not and will not require any approval of stockholders
of Air Wisconsin except those which have been obtained and are in full
force and effect on the Closing Date, and neither the execution and
delivery hereof or thereof by Air Wisconsin nor the consummation by Air
Wisconsin of the transactions contemplated hereby and by the other
Closing Date Operative Agreements and the related agreements to which
it is or will be a party, nor compliance by Air Wisconsin with any of,
nor Air Wisconsin's performance of, its obligations hereunder and
thereunder will contravene or has contravened any judgment or order
applicable to or binding on it or any Applicable Law or conflict with,
result in a breach of, or constitute a default under its corporate
charter or by-laws or conflict with, result in any breach of, or
constitute a default under, or, except as contemplated hereby, result
in the creation of any Lien under, or require the consent (not already
or concurrently obtained) of any trustee or creditor pursuant to, any
indenture, credit agreement, or other agreement or instrument to which
Air Wisconsin is a party or by which it or its assets are bound; and
(iii) Enforceability. This Agreement and each of the other Closing
Date Operative Agreements to which Air Wisconsin is a party has been
duly executed and delivered by Air Wisconsin and, assuming the due
authorization, execution and delivery thereof by the other parties
thereto, and also assuming the due execution and delivery of the other
Closing Date Operative Documents, this Agreement constitutes, and the
other Closing Date Operative Agreements to which Air Wisconsin is a
party on the Closing Date will constitute, a legal, valid and binding
obligation of Air Wisconsin, enforceable against it in accordance with
its terms, except as enforcement thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or similar laws affecting creditors' rights generally, and
by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
C. Representations and Warranties of Lessor. United hereby represents
and warrants to Operating Trustee, Air Wisconsin and Mesa, which
representations and
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warranties shall survive the execution and delivery of this Agreement and
the delivery of the Aircraft, that:
(i) Due Organization. United is a corporation duly organized and
validly existing and in good standing under the laws of the State of
Delaware and has the corporate power and authority, and all licenses,
rights, permits, certificates, franchises and other privileges,
necessary to perform its obligations under this Agreement and each of
the other Closing Date Operative Agreements to which it is a party and
each of the related agreements to which it is or will be a party;
(ii) Due Authorization; No Conflict. The execution, delivery and
performance by United of this Agreement and each of the other Closing
Date Operative Agreements to which it is a party and each of the
related agreements to which it is or will be a party have been duly
authorized by all necessary corporate action on the part of United and
do not and will not require any approval of stockholders of United
except those which have been obtained and are in full force and effect
on the Closing Date, and neither the execution and delivery hereof or
thereof by United nor the consummation by United of the transactions
contemplated hereby and by the other Closing Date Operative Agreements
and the related agreements to which it is or will be a party, nor
compliance by United with any of, nor United's performance of, its
obligations hereunder and thereunder will contravene or has contravened
any judgment or order applicable to or binding on it or any Applicable
Law or conflict with, result in a breach of, or constitute a default
under its corporate charter or by-laws or conflict with, result in any
breach of, or constitute a default under, or, except as contemplated
hereby, result in the creation of any Lien under, or require the
consent (not already or concurrently obtained) of any trustee or
creditor pursuant to, any indenture, credit agreement, or other
agreement or instrument to which United is a party or by which it or
its assets are bound; and
(iii) Enforceability. This Agreement and each of the other Closing
Date Operative Agreements to which United is a party has been duly
executed and delivered by United and, assuming the due authorization,
execution and delivery thereof by the other parties thereto, and also
assuming the due execution and delivery of the other Closing Date
Operative Documents, this Agreement constitutes, and the other Closing
Date Operative Agreements to which United is a party on the Closing
Date will constitute, legal, valid and binding obligations of United,
enforceable against it in accordance with its terms, except as
enforcement thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or
similar laws affecting creditors' rights generally, and by general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
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D. Mesa hereby represents and warrants to Operating Trustee, Air
Wisconsin and United, which representations and warranties shall survive the
execution and delivery of this Agreement, that:
(i) Due Organization. Mesa is a corporation duly organized and
validly existing in good standing under the laws of the State of New
Mexico, is qualified to do business as a foreign corporation in each
jurisdiction where the failure to be so qualified would have an adverse
effect on Mesa's business, operations or condition (financial or
otherwise) or on its ability to perform its obligations hereunder, and
has the corporate power and authority, and all licenses, rights,
permits, certificates, franchises and other privileges, necessary to
carry on its business as presently conducted and to perform its
obligations under this Agreement and each of the other Closing Date
Operative Agreements to which it is a party and each of the related
agreements to which it is or will be a party;
(ii) Due Authorization; No Conflict. The execution, delivery and
performance by Mesa of this Agreement and each of the other Closing
Date Operative Agreements to which it is a party and each of the
related agreements to which it is or will be a party have been duly
authorized by all necessary corporate action on the part of Mesa, do
not require any approval of the stockholders of Mesa, and neither the
execution and delivery hereof or thereof nor the consummation of the
transactions contemplated hereby and by the other Closing Date
Operative Agreements and the related agreements to which it is or will
be a party, nor compliance by Mesa with any of, nor Mesa's performance
of all, of the terms and provisions hereof or thereof will contravene
or has contravened any judgment or order applicable to or binding on it
or any Applicable Law or conflict with, result in any breach of, or
constitute any default under, its corporate charter or by-laws or
conflict with, result in the creation of a Lien under, or require the
consent of any trustee or creditor pursuant to, any indenture,
mortgage, chattel mortgage, deed of trust, conditional sales contract,
lease, bank loan or credit agreement or other agreement or instrument
to which Mesa is a party or by which it or its assets are bound; and
(iii) Enforceability. This Agreement and each of the other Closing
Date Operative Agreements to which Mesa is a party has been duly
executed and delivered by Mesa, and, assuming the due authorization,
execution and delivery thereof by the other parties thereto, and also
assuming the due execution and delivery of the other Closing Date
Operative Documents, this Agreement constitutes, and the other Closing
Date Operative Agreements to which Mesa is a party on the Closing Date
will constitute, legal, valid and binding obligations of Mesa,
enforceable against it in accordance with their respective terms,
except as enforcement thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
the enforcement of
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<PAGE> 12
creditors' rights generally, and by general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law).
SECTION 10. TRANSACTION EXPENSES.
Except as otherwise provided in this Agreement, each party will bear its own
fees and expenses related to preparation of the AIP, this Agreement and the
consummation of the transactions contemplated hereby; provided, however, that
Air Wisconsin and United, on the one hand, and Mesa, on the other, agree to
share equally the legal fees and expenses of the current lessor of the Sublease
Aircraft and the current lender or lenders to the Sale Aircraft; the fees and
costs of applying for and obtaining Hart-Scott-Rodino approval (or acquiescence)
from the Department of Justice and the Federal Trade Commission (and maintaining
the confidentiality of such submissions); and the fees and costs related to
filings for recordation with the Federal Aviation Administration in Oklahoma
City, and any related filings under the Uniform Commercial Code.
SECTION 11. ACA EMPLOYEES.
Subject to the provisions of this Section 10, Mesa agrees to give
preferential consideration in offering employment interviews to qualified ACA
employees in the following job classifications: captains and first officers who
are current and qualified on either the Dash 8-100 or Dash 8-300 Aircraft,
flight attendants, mechanics (A&P license required), ramp and customer service
agents; provided, Mesa does not guarantee it will hire any particular ACA
employees or any particular number of ACA employees. The decision to hire any
particular ACA employee will be at the sole discretion of Mesa. Neither Air
Wisconsin nor United will require Mesa to give credit for ACA longevity or
seniority.
SECTION 12. CONFIDENTIALITY.
The September 19, 1994 confidentiality agreement remains in full force and
effect. Each party shall maintain the confidentiality of this Agreement and of
the terms and conditions of the underlying transaction except to the extent
required to be disclosed by applicable law. In the event disclosure is required
(e.g. a press release or other disclosure under the federal securities laws),
the parties shall jointly seek a protective order or jointly approve any press
release.
SECTION 13. MISCELLANEOUS.
A. Amendments. This Agreement may be amended only by an instrument in
writing executed by all parties hereto.
B. Choice of Law. This Agreement shall be governed by and construed in
accordance with the laws of the state of Illinois, without regard to the
conflicts of Law Principles thereunder.
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<PAGE> 13
C. Entire Agreement. This Agreement, including the Exhibits hereto,
constitute the entire agreement among the parties hereto and supersedes any
prior oral or written agreement among the parties with respect to the subject
matter hereof.
D. Assignment. Neither party may assign this Agreement in whole or in part
without the prior written consent of the other party, and any such attempted
assignment will be void.
E. Waiver. The right of either party to require strict performance and
observance of any obligation hereunder will not be affected in any way by any
previous waiver, forbearance or course of dealing.
F. Severability. If any provisions hereof shall be held invalid or
unenforceable by any court of competent jurisdiction or as a result of future
legislative action, such holding or action shall be strictly construed and,
subject to applicable law, shall not affect the validity or effect of any other
provisions hereof. In such event, the parties hereto shall negotiate in good
faith to determine appropriate modification to this Agreement.
G. Captions. The captions in this Agreement are for convenience of reference
only and shall not limit or otherwise affect any of the terms or provisions
hereof.
H. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
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<PAGE> 14
IN WITNESS WHEREOF, the parties have caused this Omnibus Agreement to be
executed and delivered by their respective duly authorized officers, all as of
the date first above written.
MESA AIRLINES, INC.
By:__________________________________________
Its:_________________________________________
FIRST SECURITY BANK OF UTAH, a
National Association, not in its individual
capacity, except as expressly provided, but
solely as perating Trustee
By:__________________________________________
Its:_________________________________________
UNITED AIR LINES, INC.
By:__________________________________________
Its:_________________________________________
AIR WISCONSIN, INC.
By:__________________________________________
Its:_________________________________________
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<PAGE> 1
"CONFIDENTIAL TREATMENT REQUESTED"
REDACTED VERSION
<PAGE> 2
EXHIBIT 10.72
Air Wisconsin Contract No. 081
================================================================================
AIRCRAFT PURCHASE AND SALE AGREEMENT
Dated as of December 31, 1994
Between
Mesa Airlines, Inc.,
as Buyer
And
AIR WISCONSIN, INC.,
as Seller
================================================================================
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
ARTICLE HEADING PAGE
<S> <C>
ARTICLE I PURCHASE AND SALE OF AIRCRAFT..........................1
Section 1.1....................Aircraft Subject to Purchase and Sale 1
Section 1.2...............................Seller's Assignment Option 1
Section 1.3....................................Seller's Lease Option 2
ARTICLE II AIRCRAFT PRICE AND PAYMENTS; PRICE ADJUSTMENT;
DEPOSITS...............................................2
Section 2.1..................................Aircraft Purchase Price 2
Section 2.2.................................................Deposits 3
Section 2.3.....................................Payment Instructions 3
Section 2.4..................................Credits and Adjustments 3
Section 3.1..................................Aircraft Delivery Dates 4
Section 3.2........................................Place of Delivery 5
Section 3.3.................................................Transfer 5
Section 3.4...................................Title and Risk of Loss 7
ARTICLE IV INSPECTION, ACCEPTANCE FLIGHT AND ACCEPTANCE OF THE
AIRCRAFT...............................................7
Section 4.1........................................................7
Section 4.2................................Delays Due to Corrections 9
Section 4.3.......................................Buyer's Acceptance 9
Section 4.4........................................Buyer's Rejection 10
ARTICLE V AIRCRAFT WARRANTIES AND DISCLAIMERS...................10
Section 5.1.......................Seller's Disclaimers of Warranties 10
Section 5.2 Seller's Disclaimers of Prior Representations and
..........................................................Statements 11
Section 5.3. Exceptions to Seller's Disclaimers; Seller's
..........................................................Warranties 11
Section 5.4...................................Buyer's Acknowledgment 11
Section 5.5..................Assignment of Manufacturers' Warranties 12
ARTICLE VI TAXES AND DUTIES......................................12
Section 6.1.......................................................12
Section 6.2.......................................................13
Section 6.3.......................................................13
Section 6.4.......................................................13
Section 6.5.......................................................13
</TABLE>
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<PAGE> 4
<TABLE>
<S> <C>
ARTICLE VII DELAY IN PERFORMANCE; LOSS OR DESTRUCTION OF
AIRCRAFT..............................................13
Section 7.1....................................................Delay 13
Section 7.2..........................Loss or Destruction of Aircraft 14
ARTICLE VIII INDEMNIFICATION.......................................14
Section 8.1.......................................................14
Section 8.2.......................................................15
ARTICLE IX INSURANCE.............................................16
Section 9.1.......................................................16
Section 9.2.......................................................16
Section 9.3.......................................................17
Section 9.4.......................................................17
ARTICLE X PAINTING OF AIRCRAFT..................................17
ARTICLE XI DEFAULTS AND REMEDIES.................................17
Section 11.1......................................................17
Section 11.2......................................................18
Section 11.3......................................................18
ARTICLE XII TRANSACTION EXPENSES..................................19
ARTICLE XIII OPINIONS OF COUNSEL; BOARD RESOLUTIONS................19
Section 13.1......................................................19
Section 13.2......................................................19
Section 13.3......................................................19
ARTICLE XIV MISCELLANEOUS.........................................20
Section 14.1...............................................Amendment 20
Section 14.2...........................................Choice of Law 20
Section 14.3........................................Entire Agreement 20
Section 14.4............................................Further Acts 20
Section 14.5.............................................Assignments 20
Section 14.6..................................................Waiver 20
Section 14.7............................................Severability 20
Section 14.8................................................Captions 20
Section 14.9............................................Counterparts 20
Signatures..........................................................21
</TABLE>
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<PAGE> 5
EXHIBITS
EXHIBIT A -- Aircraft Documentation
EXHIBIT B -- Form of Aircraft Delivery Receipt
EXHIBIT C-1 -- Form of FAA Aircraft Bill of Sale
EXHIBIT C-2 -- Form of Aircraft Bill of Sale (Longform)
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<PAGE> 6
AIRCRAFT PURCHASE AND SALE AGREEMENT
THIS AIRCRAFT PURCHASE AND SALE AGREEMENT (this "Agreement" ), made and
entered into as of this 31st day of December, 1994, by and between Air
Wisconsin, Inc., a Wisconsin corporation ("Seller"), and Mesa Airlines, Inc., a
New Mexico corporation ("Buyer" ).
WHEREAS, Seller desires to sell the Aircraft (as hereafter defined) to Buyer
and Buyer desires to purchase the Aircraft;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein and other good and valuable consideration, the parties hereto agree
as follows:
ARTICLE I
PURCHASE AND SALE OF AIRCRAFT
Section 1.1. Aircraft Subject to Purchase and Sale. Pursuant to the terms and
subject to the conditions contained in this Agreement, Seller hereby agrees
to sell and deliver (or cause the delivery) to Buyer, and Buyer hereby agrees to
purchase and accept from Seller, the following ten (10) aircraft:
A. Dash 8-100 Aircraft. Four (4) de Havilland model DHC-8-100 aircraft
bearing U.S. registration numbers N416AW, N417AW, N418AW and N419AW (each
airframe thereof "Dash 8-100 Airframe" and, together with the two (2) Pratt
& Whitney model PW120 engines ("PW120 Engines"), two (2) Hamilton Standard
model propellers ("Propellers"), components, equipment and parts installed
thereon, and the aircraft documentation set forth in Exhibit A (the
"Aircraft Documentation") applicable to such aircraft, a "Dash 8-100
Aircraft"); and
B. Dash 8-300 Aircraft. Six (6) de Havilland model DHC-8-300 aircraft
bearing U.S. registration numbers N431AW, N432AW, N433AW, N434AW, N435AW and
N436AW (each airframe thereof a "Dash 8-300 Airframe" and, together with the
two (2) Pratt & Whitney model PW123 engines ("PW123 Engines"), two (2)
Propellers, components, equipment and parts installed thereon, and the
Aircraft Documentation applicable to such aircraft, a "Dash 8-300
Aircraft").
For convenience of reference, the Dash 8-100 Aircraft and the Dash 8-300
Aircraft are hereinafter collectively described sometimes as the "Aircraft"
(each, individually, as an "Aircraft"), and the PW120 Engines and the PW123
Engines are hereinafter described sometimes as the "Engines" (each,
individually, as an "Engine").
Section 1.2. Sellers Assignment Option. Seller may elect, at any time up to
ninety (90) days prior to the relevant Delivery Date (as such term is defined in
Section 3.1 hereof)of any one or more of the six (6) Aircraft which are subject
to mortgage and security agreements which collaterallize Seller's existing note
obligations to Export Development Corporation ("EDC") with respect to such
Aircraft (the "EDC Aircraft"), to assign to Buyer
<PAGE> 7
Seller's existing note obligations to EDC with respect to any one or more EDC
Aircraft in lieu of Seller paying off such note obligation and terminating the
mortgage and security agreement related thereto. In the event of such assignment
the outstanding principal balance of (together with any accrued and unpaid
interest on) the note associated with such EDC Aircraft as of its relevant
Delivery Date will be credited against, or subtracted from, the balance of its
"Purchase Price" (as such term is defined in Section 2.1 hereof) remaining due
and owing to Seller upon delivery; provided, if Buyer does not have (or is not
assigned) the right to prepay any such assigned note without penalty, such
note's payment provisions (e.g., its amortization schedule, payment amounts and
interest rate), when considered in the aggregate, shall be no less favorable
than Buyer can demonstrate that it could secure elsewhere.
[CONFIDENTIAL PORTION DELETED].
ARTICLE II
AIRCRAFT PRICE AND PAYMENT; PRICE ADJUSTMENT; DEPOSITS
Section 2.1. Aircraft Purchase Price. Subject to application of the "Initial
Deposit" and the "Supplemental Deposit" (as such terms are defined below) and
any credits or adjustments specifically referenced in this Article, Buyer will
pay Seller the aggregate purchase price for all ten (10) of the Aircraft sold
hereunder of [CONFIDENTIAL PORTION DELETED], which aggregate purchase price is
allocated between the individual Aircraft as follows:
A. The purchase price payable for each Dash 8-100 Aircraft ("Dash 8-100
Purchase Price"), before application of one-tenth (1/10th) of the sum of the
Initial Deposit and the Supplemental Deposit and any other credits or
adjustments specifically referenced in this Article, shall be [CONFIDENTIAL
PORTION DELETED]; and
B. The purchase price payable for each Dash 8-300 Aircraft ("Dash 8-300
Purchase Price" and, generically with the Dash 8-100 Purchase Price, the
"Aircraft Purchase Price"), before application of one-tenth (1/10th) of the
sum of the Initial Deposit and the Supplemental Deposit, and any other
credits or adjustments specifically referenced in this Article, shall be
[CONFIDENTIAL PORTION DELETED].
Section 2.2. Deposits.
A. Initial Deposit. An initial deposit for the Aircraft of Two Million
United States Dollars (US$2,000,000.00) (the "Initial Deposit") has been paid by
Buyer, pursuant to the payment instruction of Seller, to United Air Lines, Inc.
("United"). The Initial Deposit is non-refundable to Buyer.
B. Supplemental Deposit. Upon execution and delivery of this Agreement, and
as a condition precedent to Seller's obligations hereunder, Buyer will pay to
United (unless Seller, prior to the delivery of an Aircraft, shall otherwise
direct Buyer in writing), a
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<PAGE> 8
supplemental deposit for the Aircraft of Eighteen Million United States Dollars
(US$18,000,000.00) (the "Supplemental Deposit"). The Supplemental Deposit is
non-refundable to Buyer.
C. Allocation of Deposits. Seller will apply one-tenth (1/10th) of the sum
of the Initial Deposit and the Supplemental Deposit as a credit against the
applicable Aircraft Purchase Price of a relevant Aircraft provided, if Seller
exercises its option to lease rather than sell any one or more of the EDC
Aircraft to Buyer pursuant to Section 1.3 hereof, then such portion of the
Initial Deposit and the Supplemental Deposit which would otherwise have been
credited against the applicable Aircraft Purchase Price will be reallocated on a
pro rata basis among the then remaining undelivered Aircraft still subject to
Seller's sale and Buyer's purchase obligations (and, if no such Aircraft remain
undelivered, then such amount will be refunded to Buyer upon Buyer's acceptance
of delivery of the last of the "Twelve Aircraft" (as defined below)).
Section 2.3. Payment Instructions. All payments due hereunder to Seller
shall (unless Seller, prior to the delivery of an Aircraft, shall otherwise
direct Buyer in writing) be made by Buyer to United by wire transfer of
immediately available funds in U.S. dollars to United's account at The First
National Bank of Chicago, N.A., Chicago, Illinois, Attn: Transportation Group,
with instructions to credit United Air Lines, Special Account No. 51-67795, and
with the request that said bank advise United's Vice President and Treasurer, as
well as Seller's Treasurer, of United's receipt of such funds (or to such other
account as Seller may have directed Buyer in writing). Actual receipt of funds
by United (or by such other person as Seller may direct) will be a condition
precedent to Seller's obligation to transfer title to the Aircraft. Seller will
transfer title to the Aircraft to Buyer upon Seller's receiving confirmation,
reasonably satisfactory to it, that such funds have been transferred.
Section 2.4. Credits and Adjustments.
A. Maintenance Status and Condition. Except as specifically stated in this
Article, no adjustments will be made to any amount owing hereunder based on the
maintenance status or condition of any of the Aircraft or any of its or their
respective Engines, Propellers, auxiliary power units, landing gears,
components, equipment or parts or based on any other fact, circumstance or
situation whatsoever, whether contemplated or unforeseeable.
[CONFIDENTIAL PORTION DELETED].
[CONFIDENTIAL PORTION DELETED].
ARTICLE III
AIRCRAFT DELIVERY; TITLE AND RISK OF LOSS
Section 3.1. Aircraft Delivery Dates. Seller will determine the order of
delivery of the Aircraft and the "Sublease Aircraft" (as defined in the Omnibus
Agreement dated as of the date hereof among Seller, Buyer and United, the
"Omnibus Agreement") (collectively, such Sale Aircraft and Sublease Aircraft,
the "Twelve Aircraft"). The Twelve Aircraft will
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<PAGE> 9
have the following initially scheduled delivery dates, and Seller will deliver
the Aircraft to Buyer, and Buyer will accept delivery of the Aircraft from
Seller, on any ten (10) of the following twelve (12) delivery dates: first two
(2) of the Twelve Aircraft, January 4, 1995 (provided, if by that date Buyer has
not obtained an air carrier operating certificate and operations specification
issued by the Federal Aviation Administration under Part 121 of the FAR or
successor provisions authorizing Buyer's operation of the Aircraft, then Seller
will use reasonable efforts to encourage ACA to provide, at Buyer's cost, ACA
flight crews sufficient to operate such Aircraft pursuant to ACA's operations
specification for a period of up to one month after sale and delivery of these
two of the Twelve Aircraft to Buyer); second two (2) of the Twelve Aircraft,
January 17, 1995; fifth (5th) of the Twelve Aircraft, February 10, 1995; sixth
(6th) of the Twelve Aircraft, February 15, 1995; seventh (7th) of the Twelve
Aircraft, February 24, 1995; eighth (8th) and ninth (9th) of the Twelve
Aircraft, March 3, 1995; tenth (10th) of the Twelve Aircraft, March 15, 1995;
and the last two (2) of the Twelve Aircraft, March 31, 1995 (hereinafter,
collectively, such scheduled delivery dates, the "Delivery Dates"); provided,
Seller will work with Buyer in good faith, and will adjust the initially
scheduled Delivery Dates, as necessary, to provide for a commercially reasonable
transition of the Twelve Aircraft and their entry into Buyer's revenue service;
provided, further, the parties recognize that Seller also will need to adjust
the initially scheduled Delivery Dates, as necessary, to provide for a
commercially reasonable phase-out of the Twelve Aircraft's operation in ACA's
revenue service and their return under ACA's current leases and subleases with
Seller, and that, if a conflict arises between the terms of this "provided"
clause and the terms of the immediately preceding "provided" clause, the terms
of this "provided" clause will take precedence: provided, finally,
notwithstanding the foregoing "provided" clauses, in no event will the delivery
of any of the first ten (10) of the Twelve Aircraft be adjusted to a Delivery
Date later than March 15, 1995, and in no event will the delivery of any of the
last two (2) of the Twelve Aircraft be adjusted to a Delivery Date later than
April 15, 1995.
Section 3.2. Place of Delivery. The Aircraft will be delivered to Buyer at
an airport or maintenance provider locale in the continental United States, no
further west than Colorado, chosen by Buyer and designated pursuant to a written
notice provided to Seller no less than thirty (30) days prior to the relevant
Delivery Date of an Aircraft, or at such alternate site as may be mutually
agreed upon in writing. If delivery is made at an alternate site, at Buyer's
request, Buyer shall promptly reimburse Seller for any increased costs incurred
by Seller as a result thereof. Buyer will be responsible for registering each of
the Aircraft and providing the "flying time wire" and all other FAA required
documentation in connection with the operation of the Aircraft after each
relevant "Transfer" (as defined below).
Section 3.3. Transfer.
A. Defined. For the purpose of this Agreement, "Transfer" shall mean, with
respect to each Aircraft being delivered hereunder, the transfer by Seller to
Buyer of Seller's right, title and interest in and to such Aircraft, by the
delivery by Seller to Buyer of an FAA Bill of Sale (Form AC 8050-2) and an
Aircraft Bill of Sale in the form of Exhibits
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<PAGE> 10
C-1 and C-2 hereto, respectively, covering such Aircraft. "Transfer Date" shall
mean, with respect to each Aircraft being delivered hereunder, the date that the
Transfer takes place.
B. Conditions Precedent to Seller's Obligation to Transfer. The obligation
of Seller, with respect to each Aircraft being delivered hereunder, to Transfer
such Aircraft to Buyer shall be subject to the satisfaction of each of the
following conditions precedent; provided, that it shall not be a condition
precedent to the obligations of Seller that any document be produced or action
taken that is to be produced or taken by Seller, United or UAL Corporation
("UAL") (or by an affiliate of any thereof):
(i) On or before the Transfer Date, Seller shall have received the
certificate of insurance and the report of Buyer's independent insurance
broker evidencing the coverage required under Article IX hereof with respect
to such Aircraft in form and substance satisfactory to Seller;
(ii) On or before the Transfer Date, acceptance by Buyer of such
Aircraft, pursuant to the terms and conditions of Article IV hereof, by
delivery by Buyer to Seller of a completed and executed Aircraft Delivery
Acceptance Receipt, substantially in the form set out as Exhibit B hereto;
(iii) On or before the Transfer Date, termination by Seller, as lessor,
and ACA, as lessee, of the operating lease agreement applicable to such
Aircraft, and the filing of a lease termination agreement or amendment to
the relevant operating lease agreement with the FAA Bureau of Aircraft
Registration in Oklahoma City, Oklahoma ("FAA Aircraft Registry"); and
(iv) On the Transfer Date, purchase of such Aircraft by Buyer by its
payment to Seller, and Seller's actual receipt, of the remaining balance of
the "Aircraft Purchase Price" in accordance with the terms hereof after
application of the prorated portion of the "Initial Deposit" and
"Supplemental Deposit" (as such terms are defined herein) and any other
credits specifically described herein with respect to such Aircraft.
C. Conditions Precedent to Buyer's Obligation to Purchase Aircraft. The
obligation of Buyer, with respect to each Aircraft being delivered hereunder, to
purchase such Aircraft by Buyer's payment to Seller of the remaining balance of
the Aircraft Purchase Price in accordance with the terms hereof (after
application of the prorated portion of the Initial Deposit and Supplemental
Deposit and any other credits specifically described herein with respect to such
Aircraft), shall be subject to the satisfaction of each of the following
conditions precedent; provided, that it shall not be a condition precedent to
the obligations of Buyer that any document be produced or action taken that is
to be produced or taken by Buyer (or by an affiliate thereof):
(i) On or before the Transfer Date, Tender of the relevant Aircraft by
Seller to Buyer for Transfer, substantially in accordance with the terms and
conditions of Section 4.1 hereof;
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(ii) On or before the Transfer Date, termination by Seller, as lessor,
and ACA, as lessee, of the operating lease agreement applicable to such
Aircraft, and the filing of a lease termination agreement or amendment to
the relevant operating lease agreement with the FAA Aircraft Registry;
[CONFIDENTIAL PORTION DELETED].
[CONFIDENTIAL PORTION DELETED].
D. FAA Filings. Upon the Transfer of each Aircraft by Seller to Buyer, Buyer
shall file with the FAA Aircraft Registry (i) the FAA Bill of Sale by Buyer,
(ii) an FAA Aircraft Registration Application completed and signed by Buyer, and
(iii) a request for an FAA "flying time wire", in each case (i) through (iii)
covering such Aircraft.
Section 3.4. Title and Risk of Loss. Except as otherwise provided herein,
upon Transfer of each Aircraft to Buyer, title to and risk of loss or damage to
such Aircraft from any cause whatsoever and exclusive care, custody and control
thereof will pass to Buyer.
ARTICLE IV
INSPECTION, ACCEPTANCE FLIGHT AND ACCEPTANCE OF THE AIRCRAFT
Section 4.1. As a condition precedent to Buyer's obligations to accept the
Transfer of an Aircraft being tendered for delivery, immediately prior to the
Transfer the Aircraft shall be in a condition substantially in accordance with
the following Subsections A. through F., below, and Buyer shall have the
inspection and delivery acceptance flight rights set forth in Subsections G. and
H., respectively, below:
A. Airworthiness. The Aircraft shall be duly certified as an airworthy
aircraft by the FAA.
B. Free of Liens. The Aircraft shall be free and clear of any and all
mortgages, pledges, security interests, liens, claims, encumbrances or other
charges or rights of others of any kind (hereinafter, collectively "Liens")
(except, if Seller has exercised its option under Section 1.2 or 1.3 hereof,
rather than pay off the note obligations applicable to such Aircraft, Liens
arising as a result of or attributable to either (i) the lender Export
Development Corporation or its designated successors or assigns, or (ii)
Seller, United or UAL (or any affiliate of any thereof) in connection with
the transactions, if any, contemplated under Section 1.2 or 1.3 hereof).
C. Operating Condition. The Aircraft shall be suitable and eligible
under the Federal Aviation Regulations ("FAR") for operation in regularly
scheduled commercial airline passenger service in the United States.
D. Cleanliness and Operability. The Aircraft shall be clean by United
States commercial airline operating standards and shall have all systems and
components operable and all pilot discrepancies cleared.
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<PAGE> 12
E. Airworthiness Directives and Mandatory Service Bulletins. All FAA
airworthiness directives applicable to the Aircraft, and all manufacturer's
mandatory service bulletins applicable to the Aircraft (including the
Airframe, Engines, Propellers, APU and Landing Gears) shall have been
complied with, in each case which (i) have been issued before October 16,
1994 and (ii) have an effective date for compliance on or before October 16,
1994.
F. Records. Seller shall deliver or cause to be delivered to Buyer all
logs, manuals, drawings and data and inspection, maintenance, modification
and overhaul records in respect of the Aircraft (including information
regarding the time, "Hours" and "Cycles" on all Engines, Propellers, APU,
Landing Gears and "Controlled Components," as such terms are defined in the
operating lease agreement with ACA applicable to such Aircraft) required to
be maintained under applicable rules and regulations of the FAA, in the
English language and completed and updated through the relevant Delivery
Date. As a condition precedent to Buyer's obligations to accept the
Transfer, Seller will promptly correct or cause the correction of any
defects, inaccuracies and omissions in such records and other documentation,
as required under ACA's FAA-approved maintenance program (the "Maintenance
Program"), which are noted by Buyer prior to the applicable Transfer.
G. Delivery Inspection. Not more than five days before the scheduled
Delivery Date of an Aircraft, up to two representatives of Buyer shall have
the right to conduct, at Seller's expense (except Buyer shall pay for the
fees and costs of its own representatives), a functional ground inspection
(the "Ground Check") of the Aircraft in accordance with the Maintenance
Program sufficient to allow Buyer to confirm the condition of the Aircraft,
the satisfactory operation of all systems and the Aircraft's compliance with
the requirements of this Agreement; provided, Seller shall not be required
to open, or cause the opening of, any sealed maintenance access doors,
panels, bays, etc. in connection with such inspection. Seller shall provide
or cause to be provided reasonable assistance to Buyer as shall be necessary
to allow Buyer to properly complete its inspection. Upon completion of the
foregoing, the representatives of Buyer shall indicate any discrepancies in
the condition of the Aircraft from that required by the express terms of
this Agreement and any improper operation of any systems, and, as a
condition precedent to Buyer's obligations to accept the Transfer, Seller
shall correct or cause to be corrected such discrepancies before the
Delivery Date (or as soon thereafter as is reasonably practicable) at its
sole cost and expense.
H. Acceptance Flight. Upon correction by Seller of all discrepancies
disclosed pursuant to Subsection G. above, on or before the Transfer Date
Seller shall conduct (or cause to be conducted) a maximum takeoff power
assurance run ("Power Assurance Run") on each Engine and Propeller in
accordance with the Maintenance Program and an acceptance flight of the
Aircraft for a duration of not more than two hours in accordance with ACA's
standard flight operating procedures with up to two representatives of Buyer
(or more if consented to by Seller) on board to inspect and verify the
airworthiness condition of the Aircraft and the operational condition of its
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systems (such acceptance flight hereinafter called the "Delivery Acceptance
Flight"). Such representatives shall participate in such Delivery Acceptance
Flight at their own risk and neither Seller nor United (nor any affiliate,
director, officer, employee or agent of either Seller or United), shall be
liable for any loss, cost or expense incurred by any such representative in
connection with such Delivery Acceptance Flight; provided, further, Buyer
hereby agrees to indemnify, defend and hold harmless Seller and United (and
their respective affiliates, directors, officers, employees and agents)
against any loss, cost or expense incurred because of any injury or death to
any such representative during such Delivery Acceptance Flight. Such
representatives shall merely be observers on such Delivery Acceptance
Flight, but all reasonable requests of such representatives with respect to
demonstrating the airworthiness of the Aircraft and its compliance with the
terms and conditions hereof shall be complied with, to the extent
practicable. Promptly following the Delivery Acceptance Flight, the
representatives of Buyer shall indicate any reasonable discrepancies in the
airworthiness condition of the Aircraft or the operational condition of its
systems which are outside of the serviceable limits specified by the
Maintenance Program, and, as a condition precedent to Buyer's obligations to
accept the Transfer, such discrepancies shall be corrected, or caused to be
corrected, by Seller pursuant to or in accordance with the Maintenance
Program as soon as possible, at Seller's sole cost and expense. If another
flight is required in accordance with the Maintenance Program to verify that
the identified discrepancies have been corrected, then, as a condition
precedent to Buyer's obligations to accept the Transfer, Seller will
accomplish the verification on another Delivery Acceptance Flight, with up
to two representatives of Buyer on board to observe such verification.
Section 4.2. Delays Due to Corrections. Any reasonable delay in Transfer of
any Aircraft caused by Seller's correction (or its causing the correction) of
discrepancies discovered and noted by Buyer during the Ground Check, Power
Assurance Run, Delivery Acceptance Flight or other inspection will be deemed to
not be a breach of this Agreement by Seller, and therefore will not excuse any
failure by Buyer to accept Seller's tender of such Aircraft for Transfer upon
correction of such discrepancies.
Section 4.3. Buyer's Acceptance. Promptly upon the completion of the
Delivery Acceptance Flight (or any follow-up verification flight described in
Section 4.1.H, if applicable), Buyer shall give written notice to Seller of
either its acceptance or rejection of such Aircraft. If such Aircraft is
accepted by Buyer, then Buyer shall deliver to Seller a completed and executed
Aircraft Delivery Acceptance Receipt in the form set out as Exhibit B hereto,
and no other acknowledgment or receipt of such Aircraft or its condition shall
be required by Seller or Buyer (such Aircraft Delivery Acceptance Receipt being
evidence of Seller's satisfaction, or Buyer's waiver, of each of the condition
precedents to Buyer's obligations set forth in this Section).
Section 4.4. Buyer's Rejection. If the Aircraft is rejected by Buyer, Buyer
shall in such written notice state the reasons for its rejection, specifying in
what respects such Aircraft fails to comply with the terms of this Agreement. In
the event of rejection of such Aircraft by Buyer, Seller shall promptly notify
Buyer as to Seller's concurrence or non-
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concurrence (and the extent of such non-concurrence) with Buyer's reasons for
rejection. If Seller does not concur with Buyer's reason for rejection, the
usual remedies for breach of this Agreement shall be preserved to both parties.
If Seller concurs with Buyer's reasons for rejection, then, as a condition
precedent to Buyer's obligations to accept the Transfer, Seller will promptly
proceed to correct the conditions which were specified as the basis for
rejection by Buyer and with which Seller concurred. If, after such correction
and tender for inspection by Buyer, such Aircraft is not rejected as hereinabove
provided, Seller shall proceed with and Buyer will accept delivery thereof by
completing and executing an Aircraft Delivery Acceptance Receipt in the form set
out as Exhibit B hereto. In the event that Seller shall not, within ninety (90)
days after an Aircraft's designated Delivery Date, have corrected or caused the
correction of all conditions which were specified as a basis for rejection of
such Aircraft by Buyer and with which Seller concurred, all remedies for breach
of this Agreement shall be preserved to both parties.
ARTICLE V
AIRCRAFT WARRANTIES AND DISCLAIMERS
Section 5.1. Seller's Disclaimers of Warranties. Except as provided in
Section 5.3 below, the Aircraft (including but not limited to the Airframe and
any engines, propellers, APU, landing gears, components, equipment and parts
installed thereon, and any of the aircraft documentation applicable to such
Aircraft, and any other equipment, parts, data or information sold hereunder) is
sold on an "as is" basis, with all faults and without recourse to Seller. The
Warranty set forth in Section 5.3 below and the obligations and liabilities of
Seller thereunder are expressly in lieu of, and Seller will not be deemed to
have made, and Buyer hereby waives, any and all other representations,
warranties, duties, and guarantees of any kind whatsoever, express or implied,
statutory or otherwise, concerning such Aircraft or the airworthiness thereof
(including but not limited to the airframe and any engines, propellers, APU,
landing gears, components, equipment and parts installed thereon, and any of the
Aircraft documentation applicable to such Aircraft, and any other equipment,
parts, data or information sold hereunder), or the value, condition, design,
operation, durability or compliance with specification of such Aircraft
(including but not limited to the airframe and any engines, propellers, APU,
landing gears, components, equipment and parts installed thereon, and any of the
Aircraft documentation applicable to such Aircraft, and any other equipment,
parts, data or information sold hereunder), including, but not limited to any
implied warranty of merchantability or fitness for any particular purpose, and
Buyer hereby waives any and all rights and remedies it may have against seller
relating to any of the foregoing and arising by law or otherwise including but
not limited to any obligation arising from the negligence (whether active,
passive or any other type) of Seller, its Directors, Officers, Agents or
Employees (excluding, however, its or their willful misconduct) or with respect
to loss of use, revenue or profit, the existence of any latent, inherent or any
other defect (whether or not discoverable), or as to the infringement of any
patent, copyright, design or other proprietary right, or other incidental or
consequential damages. No agreement or understanding varying, altering or
extending Seller's liability hereunder will be binding on Seller unless in
writing and signed by Seller's and Buyer's duly authorized officer or
representative.
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Section 5.2. Seller's Disclaimers of Prior Representations and Statements.
Any prior representations or statements, whether oral or written, made by Seller
(or any affiliate thereof) as to the condition or fitness of any of the Aircraft
(including but not limited to the Airframe and any engines, propellers, APU,
landing gears, components, equipment and parts installed thereon, and any of the
Aircraft documentation applicable to such Aircraft, and any other equipment,
parts, data or information sold hereunder), or their capability or capacity, are
superseded hereby and any such representations or statements not specifically
set forth in this Agreement are hereby withdrawn by Seller (on its own behalf
and on behalf of any of its Affiliates which may have made any such
representation or statement), shall not be applicable to the transactions
contemplated hereby and are of no further force and effect, and Buyer
acknowledges that Buyer has not relied and is not relying on any such
representation or statement.
Section 5.3. Exceptions to Seller's Disclaimers; Seller's Warranties'.
Seller hereby represents and warrants to Buyer that at the time of Transfer of
the Aircraft, to the extent applicable, that: (a) Seller will have legal and
beneficial title to the Aircraft; and (b) title thereto will be transferred to
Buyer free and clear of any Liens (except, if Seller has exercised its option
under Section 1.2 or 1.3 hereof, rather than pay off the applicable note
obligations, Liens arising as a result of or attributable to either (i) the
lender Export Development Corporation or its designated successors or assigns,
or (ii) Seller, United or UAL) (or any affiliate of Seller, United or UAL) in
connection with the transactions contemplated under Section 1.2 or 1.3 hereof),
other than Liens arising as a result of or attributable to Buyer.
Section 5.4. Buyer's Acknowledgment. Buyer expressly agrees and acknowledges
that none of the Seller, UAL, nor united, nor any affiliate of any thereof is
the manufacturer of any of the Aircraft (including but not limited to the
airframe and any engines, propellers, APU, landing gears, components, equipment
and parts installed thereon, and any of the Aircraft documentation applicable to
such aircraft, and any other equipment, parts, data or information sold
hereunder), and that each Aircraft (including but not limited to the airframe,
engines, propellers, APU, landing gears, components, equipment and parts
installed thereon, and the aircraft documentation applicable to such aircraft,
and any other equipment, parts, data or information sold hereunder) is of a
make, size, design and capacity desired by buyer for the purposes intended by
Buyer and is a used Aircraft (including but not limited to any used airframe,
used engines, used propellers, used APU, used landing gears, used components,
used equipment and used parts installed thereon), and Buyer confirms that it has
not, in entering into this agreement, relied on any condition, warranty or
representation by Seller, UAL or United (or any affiliate of any thereof),
express or implied, whether arising by applicable law or otherwise in relation
to any of the Aircraft (including but not limited to the airframe, engines,
propellers, APU, landing gears, components, equipment and parts installed
thereon, and the aircraft documentation applicable to such Aircraft, and any
other equipment, parts, data or information sold hereunder), including, without
limitation, warranties or representations as to the description, quality,
durability, airworthiness, merchantability, fitness for any use or purpose,
value, condition, design or operation of any kind or nature of any of the
Aircraft (including but not limited to the airframe and any engines, propellers,
APU, landing gears, components,
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equipment and parts installed thereon), as to the absence of any latent,
inherent or any other defects (whether or not discoverable), or as to the
infringement of any patent, copyright, design or other proprietary right; and
the benefit of any such condition, warranty or representation by Seller, UAL or
United (or any affiliate of any thereof), is hereby irrevocably and
unconditionally waived by Buyer.
Section 5.5. Assignment of Manufacturers' Warranties. Seller hereby assigns,
effective as of Transfer on or about the designated Delivery Date of each
relevant Aircraft, to Buyer as its interests may appear, any and all existing
assignable warranties, service life policies and patent indemnities of
manufacturers and maintenance and overhaul agencies to or for Seller, of or for
the Aircraft. To the extent that such rights are not assignable, Buyer hereby is
subrogated to all such rights of Seller. Upon Buyer's request, Seller will give
Buyer reasonable assistance in enforcing the rights of Buyer arising under such
warranties, service life policies and patent indemnities, but Buyer will
reimburse Seller on demand for reasonable costs and expenses (including
attorney's fees and expenses) incurred by Seller in rendering such assistance.
From time to time, upon the request and at the cost of Buyer, Seller will give
notice to any such manufacturers, maintenance and overhaul agencies of the
assignment of such warranties, service life policies and patent indemnities to
Buyer. Seller makes no representation or warranty as to the assignability of any
such rights or as to the validity or scope of any such subrogation.
ARTICLE VI
TAXES AND DUTIES
Section 6.1. Buyer will pay, upon demand, and agrees to indemnify Seller,
UAL, United and any affiliate of any thereof (each, a "Tax Indemnitee") against
and hold each Tax Indemnitee harmless from any and all taxes, assessments,
charges, fees or duties of any nature whatsoever (hereinafter, collectively,
"Taxes") (excluding any Taxes levied upon a Tax Indemnitee's net income) imposed
by any United States federal, state or local government jurisdiction or taxing
authority or any foreign government or taxing authority, together with any
penalties, fines or interest thereon required to be paid by a Tax Indemnitee or
Buyer as a result of the sale, use, delivery or transfer of any of the Aircraft
under this Agreement or the Agreement in Principle dated October 16, 1994 among
Seller, United and Buyer (such agreement, the "Agreement in Principle").
Section 6.2. If a claim is made against a Tax Indemnitee for any such Taxes
together with any penalty, fine or interest thereon, such Tax Indemnitee, upon
receiving notice of such claim, will promptly notify Buyer. If requested by
Buyer in writing, such Tax Indemnitee will, at Buyer's expense, take such action
as Buyer may reasonably direct with respect to such claim. Any payment by a Tax
Indemnitee of such Taxes together with any penalty, fine or interest thereon,
will be made under protest if so directed by Buyer. If payment is made, such Tax
Indemnitee will, at Buyer's expense, take such action as Buyer may reasonably
direct to recover such payment. If all or any part of any such Taxes together
with any penalty, fine or interest thereon, is refunded, such Tax Indemnitee
will repay Buyer such part thereof as Buyer will have paid including any
interest received thereon. Buyer will pay a Tax Indemnitee upon demand for all
expenses (including without
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limitation, all costs, expenses, losses, reasonable legal and accountants' fees
and disbursements, penalties and interest) incurred by such Tax Indemnitee in
making payment, protesting payment, endeavoring to obtain a refund of any such
Taxes together with any penalty, fine or interest, or enforcing such Tax
Indemnitee's rights against Buyer under this Article VI.
Section 6.3. The amount which Buyer will be required to pay with respect to
this Article VI will be an amount sufficient to restore a Tax Indemnitee to the
same position such Tax Indemnitee would have been in had such liability not been
incurred. If a Tax Indemnitee realizes a permanent tax benefit by reason of any
payments made by Buyer pursuant to this Article VI, such Tax Indemnitee will
promptly pay to Buyer (but not before Buyer has made all payments theretofore
due such Tax Indemnitee under this Article), an amount equal to, but not to
exceed, the sum of such tax benefit plus any other permanent tax benefit
realized by such Tax Indemnitee as the result of any payment made by such Tax
Indemnitee pursuant to this Section. It is intended that a Tax Indemnitee should
not realize a net tax benefit pursuant to this Article unless Buyer has first
been made whole for any payments by it to such Tax Indemnitee pursuant to this
Article VI.
Section 6.4. Each Tax Indemnitee will work in good faith with Buyer and will
take all reasonable steps to minimize any such Taxes, including, if possible,
arranging for delivery, in accordance with Section 3.2 hereof, at a locale in
the continental United States, no further west than Colorado, where such Taxes
are minimized.
Section 6.5. Notwithstanding any other provision of this Agreement, the
obligations of Buyer and each Tax Indemnitee under this Section will survive the
consummation, completion or termination (or any combination of any thereof) of
this Agreement.
ARTICLE VII
DELAY IN PERFORMANCE; LOSS OR DESTRUCTION OF AIRCRAFT
Section 7.1. Delay.
A. If delivery is delayed beyond an Aircraft's designated Delivery Date due
to Buyer's fault or responsibility, Buyer shall promptly reimburse Seller for
all costs and expenses incurred by Seller as a result of such delay, including
but not limited to reasonable amounts for storage, maintenance, insurance,
taxes, preservation or protection of such Aircraft, and interest on payments
due.
B. Excusable Delay. Seller will not be responsible nor deemed to be in
default on account of any delay in the Transfer of an Aircraft hereunder or in
the performance of any other act to be performed by Seller under this Agreement
due to causes beyond Seller's control and not occasioned by its intentional acts
or gross negligence including, by way of illustration and not of limitation,
acts of God, acts of terrorism, acts of public enemies or hostilities, war,
warlike operations, insurrection, riots, fires, floods, explosions, earthquakes,
epidemics or quarantine restrictions, civil disturbance, any act of government,
governmental priorities, allocation regulations or orders affecting materials,
facilities or
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aircraft, strikes or labor troubles causing cessation, slow-down or interruption
of work, delay in transportation, delays occasioned by EDC or ACA and covered in
Section 1.2, 1.3 or 3.1 hereof, or due to any other cause to the extent it is
beyond Seller's control or not occasioned by Seller's intentional acts or gross
negligence. Delays resulting from any of the foregoing causes are referred to as
"Excusable Delays."
C. Termination for Excusable Delay. If, due to an Excusable Delay, delivery
of an Aircraft is delayed for a period of more than six (6) months after the
Aircraft's designated Delivery Date, then either party may terminate this
Agreement with respect to such Aircraft so delayed (and only with respect to
such Aircraft) by giving written notice to the other within thirty (30) days
after the expiration of such six-month period. Termination under this Section
shall terminate and discharge all obligations and liabilities of Buyer and
Seller hereunder with respect to such delayed Aircraft and all undelivered items
and services to be furnished hereunder which are related thereto. If, following
such a six-month period of an Excusable Delay, this Agreement is not terminated
with respect to the delayed Aircraft in accordance with the provisions of this
Section, then the time of delivery otherwise required hereunder shall be
extended by a period equal to the period of the Excusable Delay. The termination
provisions set forth in this Section are in substitution for any other rights of
termination or contract lapse arising by operation of law by virtue of an
Excusable Delay.
Section 7.2. Loss or Destruction of Aircraft. If, prior to an Aircraft's
Transfer on or about its relevant Delivery Date, such Aircraft shall suffer a
"Casualty Occurrence" (as defined in the applicable operating lease agreement
with ACA), then neither party hereto will have any obligation to the other party
with respect to such lost or damaged Aircraft pursuant to this Agreement;
provided, that any pro rata portion of the Initial Deposit and Supplemental
Deposit that had been allocated to such lost or damaged Aircraft will be
reallocated among the remaining undelivered Aircraft (or, if there are no then
remaining undelivered Aircraft, such pro rata portion of the Initial Deposit and
Supplemental Deposit shall be promptly returned by Seller to Buyer).
[CONFIDENTIAL PORTION DELETED].
[CONFIDENTIAL PORTION DELETED].
ARTICLE IX
INSURANCE
Section 9.1. Effective upon Transfer of the Aircraft to Buyer and for a
period of three (3) years thereafter, Buyer will at its expense maintain, or
shall cause to be maintained, insurance for comprehensive airline liability,
aircraft third party, contractual liability, property damage, passenger,
baggage, cargo and mail and airline general third party (including products)
legal liability in an amount not less than of [CONFIDENTIAL PORTION DELETED]
United States Dollars [CONFIDENTIAL PORTION DELETED] per
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occurrence combined single limit bodily injury and property damage aircraft
liability insurance with regard to each such Aircraft with insurance carriers of
recognized responsibility, which coverage will be endorsed: (a) to name all
Indemnitees as additional insureds ("Additional Insureds") thereunder; (b) to
expressly provide cross-liability clauses; (c) to expressly provide that all of
the provisions thereof, except the limits of liability, shall operate in the
same manner as if there were a separate policy covering each insured and shall
waive any right of subrogation of the insurers against each Additional Insured;
(d) to expressly provide that, in respect of the respective interests of each
Additional Insured in such policies, the insurance shall not be invalidated by
any action or inaction of Buyer or any affiliate thereof (or any director,
officer, agent or employee of either thereof) or any other third party and shall
insure the respective interests of the Additional Insureds, as they appear,
regardless of any breach or violation of any warranty, declaration or condition
contained in such policies by Buyer or any affiliate thereof (or any director,
officer, agent or employee of either thereof) or any other third party; (e) to
expressly provide that such insurance shall be primary without any right of
contribution from any other insurance which is carried by any Additional
Insured; (f) to expressly waive any right of the insurers to set-off or
counterclaim or any other deduction, whether by attachment or otherwise, in
respect of any liability of any Additional Insured; (g) to expressly provide
that all of the provisions thereof, except the limits of liability, shall
operate in the same manner as if there were a separate policy covering each
insured and shall waive any right of subrogation of the insurers against each
Additional Insured; and (h) to expressly cover the contractual liability to each
of the Additional Insureds assumed by Buyer in Section 8.1 hereof but only to
the extent of the contractual liability assumed by Buyer in Section 8.1 hereof;
provided, however, that such coverage is at least as comprehensive as that
normally maintained by operators of aircraft of a similar type in international
commercial operations with respect to such aircraft; provided, further, that
such coverage meets or exceeds the dollar limitations set forth in this Section.
Section 9.2. Buyer will furnish to Seller, prior to Transfer of the relevant
Aircraft (and upon any renewal of such insurance contracts), broker's
certificates certifying that such policies of insurance, endorsed as required
herein, are in full force and effect (together with such waivers of subrogation
as described in Section 9.1), and stating the opinion of such firm that such
insurance complies with the terms hereof, that all premiums in connection with
such insurance then due have been paid, and that Seller will be given thirty
(30) days' prior written notice by the insurers in the event of either
cancellation or decrease or material change in such coverage or in said waivers,
except that with respect to war risk coverage, seven (7) days prior written
notice will be given or, if seven (7) days notice is not available, such lesser
period of time as is generally being made available by insurers. Buyer
acknowledges that the failure to provide such report to Seller shall have the
same effect hereunder as the failure to maintain the insurance otherwise
required by this Article IX.
Section 9.3. In the event that Buyer shall fail to maintain or cause to be
maintained insurance as herein provided, Seller or any other additional insured
may at its sole option provide such insurance and, in such event, Buyer shall,
upon demand, reimburse such additional insured for the cost thereof, without
waiver of any other rights such additional insured may have. Buyer will pay an
additional insured upon demand for all expenses
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(including without limitation, all reasonable legal and accountants' fees and
disbursements, and interest) incurred by such additional insured in enforcing
such additional insured's rights against Buyer under this Article IX.
Section 9.4. Notwithstanding any other provision of this Agreement, the
obligations of the parties under this Article IX will survive the consummation,
completion, or termination (or any combination of any thereof) of this
Agreement.
ARTICLE X
PAINTING OF AIRCRAFT
Seller shall, at its own expense, paint (or cause the painting of) any two
(2) of the de Havilland model DHC-8-300 aircraft that are part of the Twelve
Aircraft to be delivered. If any one or more of up to two (2) of such Aircraft
substantially are otherwise ready for delivery to Buyer and there is
insufficient time to have that particular Aircraft painted, then Seller may
elect to proceed with the delivery of such Aircraft without pre-delivery
painting, and for each unpainted Aircraft Seller will reimburse Buyer for the
cost of repainting the Aircraft into the new worldwide livery colors of United
Express. Upon Buyer's notification that Buyer has repainted an Aircraft, Seller
will immediately pay to Buyer the invoiced cost for such repainting, subject to
an aggregate maximum amount payable by Seller for all of the Aircraft repainted
by Buyer equal to the product of (a) the number of Aircraft painted
post-delivery by Buyer, multiplied by (b) the average dollar amount per Aircraft
that Seller has to that date been charged to have certain of the other Aircraft
of the same model painted. Buyer shall be entitled to operate the unpainted
Aircraft in the livery in which it is delivered until such time as the Aircraft
would be repainted by Buyer in the ordinary course of business.
ARTICLE XI
DEFAULTS AND REMEDIES
Section 11.1. The occurrence of any one or more of the following will
constitute an event of default ("Event of Default") under this Agreement:
A. Either party refuses, neglects or fails to perform,
observe and keep any of the covenants, agreements, terms or conditions
contained herein on its part to be performed, observed and kept, and
such refusal, neglect or failure continues for a period of thirty (30)
days after written notice thereof (except, in the case of nonpayment of
money due, wherein such refusal, neglect or failure continues for a
period of two (2) business days after written notice); or
B. (i) Either party files a voluntary petition in
bankruptcy, or is adjudicated as bankrupt or insolvent, or files any
petition or answer seeking any reorganization, composition,
readjustment, liquidation or similar relief for itself under any
present or future statutes, laws or regulations, or seeks or consents
to, or acquiesces in the appointment of any trustee, or makes any
general assignment for the
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benefit of creditors or admits in writing its inability to pay its
debts generally as they become due; or
(ii) A petition is filed against either party seeking
any reorganization, composition, readjustment, liquidation or similar
relief under any present or future statutes, laws or regulation, and
remains undismissed or unstayed for an aggregate of sixty (60) days
(whether or not consecutive), or if any trustee, receiver or liquidator
of either party is appointed, which appointment remains unvacated, or
unstayed for an aggregate of sixty (60) days (whether or not
consecutive); or
[CONFIDENTIAL PORTION DELETED].
Section 11.2. Upon the occurrence of an Event of Default attributable to
Seller under this Agreement, Buyer in its sole discretion may by written notice
effective immediately terminate this Agreement as to any or all of the Aircraft
which have not yet been sold and delivered to Buyer, and Buyer shall be entitled
to the immediate return from Seller of the pro rata portion of the Initial
Deposit and Supplemental Deposit that had been allocated to such designated
undelivered Aircraft. Neither termination of this Agreement nor the receipt of
such monies by Buyer will limit or impair any other rights or remedies which
Buyer may have as a result of Seller's default or constitute an election of
remedies by Buyer.
Section 11.3. Upon the occurrence of an Event of Default attributable to
Buyer, Seller in its sole discretion may by written notice effective immediately
terminate this Agreement as to any or all of the Aircraft which have not yet
been sold and delivered to Buyer, and Buyer thereafter shall have no further
rights with respect to any such designated undelivered Aircraft. Termination of
this Agreement will not limit or impair any other rights or remedies which
Seller may have as a result of Buyer's default or constitute an election of
remedies by Seller.
TRANSACTION EXPENSES
Except as otherwise provided in this Agreement, each party will bear its own
fees and expenses related to preparation of this Agreement, the Transfer of the
Aircraft and the consummation of the transactions contemplated hereby; provided,
however, that Seller and Buyer agree to share equally the fees and costs related
to filings for recordation with the Federal Aviation Administration in Oklahoma
City, and any related filings under the Uniform Commercial Code.
OPINIONS OF COUNSEL; BOARD RESOLUTIONS
Section 13.1. Not later than the date hereof, Buyer will provide Seller a
written opinion of its general counsel addressed to Seller stating that Buyer is
validly organized and existing and in good standing under the laws of the State
of New Mexico; that this
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Agreement has been validly executed by Buyer and that Buyer's obligations under
this Agreement are binding, valid and enforceable in accordance with their
terms; that neither this Agreement nor performance by Buyer of any of its
obligations hereunder violate any provisions of existing law, the Certificate of
Incorporation of Buyer as amended, or its By-Laws or any agreement, indenture,
note or other instrument which is binding upon Buyer of which such counsel has
knowledge; and that no action by any governmental bureau, agency or commission
is requisite to the validity or enforceability of this Agreement. Such opinion
will be delivered to Seller with a certified copy of a resolution of Buyer's
Board of Directors expressly authorizing the execution and delivery of this
Agreement.
Section 13.2. Not later than the date hereof, Seller will provide Buyer a
written opinion of its secretary or counsel addressed to Buyer stating that
Seller is validly organized and existing and in good standing under the laws of
the State of Wisconsin; that this Agreement has been validly executed by Seller
and that Seller's obligations under this Agreement are binding, valid and
enforceable in accordance with their terms; that neither this Agreement nor
performance by Seller of any of its obligations hereunder violate any provisions
of existing law, the Certificate of Incorporation of Seller as amended, or its
By-Laws or any agreement, indenture, note or other instrument which is binding
upon Seller of which such counsel has knowledge; and that no action by any
governmental bureau, agency or commission is requisite to the validity or
enforceability of this Agreement. Such opinion will be delivered to Buyer with a
certified copy of a resolution of Seller's Board of Directors expressly
authorizing the execution and delivery of this Agreement.
Section 13.3. It is understood that any such opinions of counsel may state
that the enforceability of any obligation referred to therein is subject to and
may be limited by (a) applicable bankruptcy, insolvency, moratorium or other
similar laws affecting the enforcement of creditors' rights generally, (b)
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and (c) in the case of indemnity
provisions contained in this Agreement, as limited by public policy
considerations.
MISCELLANEOUS
Section 14.1. Amendment. This Agreement may be amended only by an instrument
in writing executed by all parties hereto.
Section 14.2. Choice of Law. This agreement shall be governed by and
construed in accordance with the laws of the State of Illinois, without regard
to the conflicts of law principles thereunder.
Section 14.3. Entire Agreement. This Agreement, including the Exhibits
hereto, constitute the entire agreement among the parties hereto with respect to
the purchase and sale of the Aircraft, and supersedes any prior oral or written
agreement among the parties with respect to the subject matter hereof, including
but not limited to the Agreement in Principle. All Exhibits described in this
Agreement shall be deemed to be incorporated and
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made a part of this Agreement, except that, if there is any inconsistency
between this Agreement and the provisions of any Exhibit, the provisions of this
Agreement shall control.
Section 14.4. Further Acts. At any time and from time to time, upon the
request of either party hereto, the other party hereto shall promptly and duly
execute and deliver any and all such further instruments, certificates, and
documents as such party may reasonably deem necessary or desirable in order to
obtain the full effects and benefits of this Agreement and or the rights herein
granted.
Section 14.5. Assignments. Neither party may assign or delegate this
Agreement in whole or in part without the prior written consent of the other
party, and any such attempted assignment or delegation will be void. This
Agreement and the rights and obligations of the parties hereunder, shall be
binding upon and inure to the benefit of each of the parties, their respective
successors and permitted assigns.
Section 14.6. Waiver. The right of either party to require strict
performance and observance of any obligation hereunder will not be affected in
any way by any previous waiver, forbearance or course of dealing.
Section 14.7. Severability. If any provision hereof shall be held invalid or
unenforceable by any court of competent jurisdiction or as a result of future
legislative action, such holding or action shall be strictly construed and,
subject to applicable law, shall not affect the validity or effect of any other
provisions hereof. In such event, the parties hereto shall negotiate in good
faith to determine appropriate modification to this Agreement.
Section 14.8. Captions. The captions in this Agreement are for convenience
of reference only and shall not limit or otherwise affect any of the terms or
provisions hereof.
Section 14.9. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
-18-
<PAGE> 24
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
MESA AIRLINES, INC.
By_______________________________________
Chief Executive Officer
AIR WISCONSIN, INC.
By_______________________________________
Its:___________________________________
-19-
<PAGE> 25
EXHIBIT A
AIRCRAFT DOCUMENTATION
See attached list [to be provided].
<PAGE> 26
EXHIBIT B
FORM OF RECEIPT FOR DELIVERY OF PURCHASED AIRCRAFT
Time:___________________________
Date:___________________________
Location:________________________
Receipt for delivery of One (1) de Havilland model DHC-8-[100/300]
aircraft bearing U.S. registration number N4__AW, manufacturer's serial number
______, to Mesa Airlines, Inc. ("Buyer") pursuant to the Aircraft Purchase and
Sale Agreement (the "Agreement") between Buyer and Air Wisconsin, Inc.
("Seller") dated as of December ___, 1994; with such Aircraft bearing two (2)
Pratt & Whitney model PW[120/123] engines with manufacturer's serial numbers
_______ and ________ , and two (2) Hamilton Standard model propellers with
manufacturer's serial numbers _______ and _______.
The undersigned is authorized by Buyer to accept delivery for purchase of
the Aircraft (including but not limited to the Aircraft Documentation) pursuant
to the Agreement and confirms that the Aircraft (including the Aircraft
Documentation) fully complied with the description set forth in the Agreement
and that the Buyer hereby unconditionally and irrevocably accepts the same.
Received by:
______________________________________
Title:________________________________
[Authorized Agent]
<PAGE> 27
EXHIBIT C-1
FORM OF FAA BILL OF SALE
See attached form.
<PAGE> 28
EXHIBIT C-2
FORM OF BILL OF SALE
KNOW ALL MEN BY THESE PRESENTS:
That AIR WISCONSIN, INC. ("Seller"), a Wisconsin corporation, in
consideration of the sum of One Dollar ($1.00) and other good and valuable
consideration, to it in hand paid by MESA AIRLINES, INC., a New Mexico
corporation ("Buyer"), pursuant to the Aircraft Purchase and Sale Agreement (the
"Agreement") between Buyer and Air Wisconsin, Inc. ("Seller") dated as of
December ___, 1994, the receipt of which consideration is hereby acknowledged,
does hereby sell, convey, transfer and deliver unto Buyer at ____________,
________________, all of Seller's right, title and interest in and to the
following (collectively, the "Aircraft"):
(i) One (1) de Havilland model DHC-8-[100/300] aircraft
bearing U.S. registration number N4__AW, manufacturer's serial number
______; with such Aircraft bearing two (2) Pratt & Whitney model
PW[120/123] engines with manufacturer's serial numbers _______________
and _____________ ,and two (2) Hamilton Standard model propellers with
manufacturer's serial numbers _______ and _______, together with all
appliances, parts, instruments, appurtenances, accessories, furnishings
and other equipment installed on or attached to said airframe and
engines; and
(ii) the Aircraft Documentation as described in the Agreement.
TO HAVE AND TO HOLD the said Aircraft (including but not limited to the
Aircraft Documentation) to Buyer, its successors and assigns forever.
That said Seller warrants that it has good and sufficient legal and
equitable title to the said Aircraft, that it has full power and lawful
authority to sell such Aircraft, that there is hereby conveyed to Buyer on the
date hereof, good title to the Aircraft free and clear of any mortgage, pledge,
lien, charge, encumbrance, lease, exercise of rights, security interest,
equipment trust, claim or right of another (other than any such item
attributable to Buyer or, if Seller has exercised its option to assign rather
than pay off the applicable note obligations, any such item arising as a result
of or attributable to the lender Export Development Corporation or its
designated successors or assigns) and that Seller will warrant and defend such
title against all claims and demands whatsoever.
<PAGE> 29
IN WITNESS WHEREOF, Seller has caused this instrument to be signed and its
seal to be affixed this ____ day of ________________________, 1995.
AIR WISCONSIN, INC.
By_______________________________________
Its:___________________________________
C-2-2
<PAGE> 1
"CONFIDENTIAL TREATMENT REQUESTED"
REDACTED VERSION
<PAGE> 2
EXHIBIT 10.74
United Contract No. 105190-A1
December 31, 1994
Mesa Airlines, Inc.
2325 East 30th Street
Farmington, New Mexico 87401
AMENDMENT OF UNITED EXPRESS AGREEMENT
Ladies and Gentlemen:
Reference is made to (i) that certain expanded partner marketing agreement
between United Air Lines, Inc., a Delaware corporation ("United") and Mesa
Airlines, Inc., a New Mexico corporation ("Mesa") dated February 15, 1990, as
amended, (as amended, the "United Express Agreement") relating to Mesa's
scheduled air service operations as a "United Express Carrier", as that term is
defined in the United Express Agreement, and (ii) that certain Omnibus Agreement
dated as of the date hereof (the "Omnibus Agreement") among United, Air
Wisconsin Inc., a Wisconsin corporation ("AW"), First Security Bank of Utah,
National Association, as Operating Trustee, and Mesa, relative to the sale and
sublease of DHC 8-100 and DHC 8-300 aircraft to Mesa, and other related
transactions.
This amendment agreement (this "Amendment"), when fully executed by the
parties hereto, will become part of the United Express Agreement and will
evidence the parties' further agreement with respect to the matters set forth
below.
In the event of any conflict between any of the provisions of this Amendment
and the provisions of the United Express Agreement, the provisions of this
Amendment shall govern. All terms used herein and in the United Express
Agreement, unless otherwise defined herein, shall have the same meaning as in
the United Express Agreement.
This will confirm our agreement, subject to the conditions subsequent stated
below, to amend the United Express Agreement as follows:
1. A. Term. The term of the United Express Agreement shall
be extended for a period of ten (10) years, commencing on February 15,
1995, the day after the last day of the current term of the United
Express Agreement.
B. Program Fees. Beginning on [CONFIDENTIAL PORTION
DELETED] the program fees charged under the United Express Agreement
will [CONFIDENTIAL PORTION DELETED] the program fees charged under the
current United Express Agreement. Thereafter, during the [CONFIDENTIAL
PORTION DELETED] of this [CONFIDENTIAL PORTION DELETED] extension of
the United Express Agreement, on each annual anniversary of the
[CONFIDENTIAL PORTION DELETED] date, the program fees charged under the
United Express Agreement will [CONFIDENTIAL PORTION DELETED] per year.
During the
<PAGE> 3
[CONFIDENTIAL PORTION DELETED] of this [CONFIDENTIAL PORTION
DELETED] extension of the United Express Agreement, on each annual
anniversary of the [CONFIDENTIAL PORTION DELETED] date, the program
fees charged under the United Express Agreement will increase at a rate
equal to the [CONFIDENTIAL PORTION DELETED] during the then-prior
[CONFIDENTIAL PORTION DELETED] in the [CONFIDENTIAL PORTION DELETED],
United's costs of business and other relevant considerations; provided,
such program fee increases shall be subject to [CONFIDENTIAL PORTION
DELETED].
C. Covered City-Pairs. (i) United shall grant to Mesa the
[CONFIDENTIAL PORTION DELETED] to serve as a United Express carrier in
(a) the [CONFIDENTIAL PORTION DELETED] city-pairs listed in Exhibit H,
and (b) the [CONFIDENTIAL PORTION DELETED] city-pairs listed on Exhibit
I (collectively, all such Exhibit H and I city-pairs, the "Covered
City-Pairs"); provided, the foregoing shall in no way restrict United
but, rather, United shall continue to have the right to [CONFIDENTIAL
PORTION DELETED] by (1) any affiliate of United operating jet aircraft
with no less than [CONFIDENTIAL PORTION DELETED], or (2) United itself)
in any city-pair (including, without limitation, any Covered
City-Pairs), as United in its sole discretion shall determine, or (Y)
the service of [CONFIDENTIAL PORTION DELETED] in (1) any city-pair
other than the Covered City-Pairs, (2) any Covered City-Pair on Exhibit
I [CONFIDENTIAL PORTION DELETED] as measured airport to airport, or (3)
any Covered City-Pair if either United (whether by (1) any affiliate of
United operating jet aircraft with [CONFIDENTIAL PORTION DELETED], or
(2) United itself) or [CONFIDENTIAL PORTION DELETED] of the date of
this Agreement in Principle or, as of any future date, if United or
such affiliate of United has then served such Covered City-Pair
[CONFIDENTIAL PORTION DELETED] for at least [CONFIDENTIAL PORTION
DELETED].
(ii) Notwithstanding the foregoing provisions of
Section 3.C.(i), Mesa shall not commence any United Express
service to or from any Covered City-Pair without
[CONFIDENTIAL PORTION DELETED]. Upon or concurrently with
Mesa's request [CONFIDENTIAL PORTION DELETED], the parties
shall agree to [CONFIDENTIAL PORTION DELETED]. These
minimum United Express service levels shall be deemed added
to and covered by Mesa's covenant in Section 3.D.(ii)
hereof.
(iii) [CONFIDENTIAL PORTION DELETED]:
(a) Mesa's operation of its United Express
service in any Covered City-Pair [CONFIDENTIAL PORTION
DELETED] either (X) on [CONFIDENTIAL PORTION DELETED],
for the [CONFIDENTIAL PORTION DELETED] or (Y) on a
[CONFIDENTIAL PORTION DELETED], for the [CONFIDENTIAL
PORTION DELETED], in United's reasonable judgment.
-2-
<PAGE> 4
(b) Mesa's operation of its United Express
service in any Covered City-Pair is such that
[CONFIDENTIAL PORTION DELETED] (as measured from
[CONFIDENTIAL PORTION DELETED] of the succeeding year),
in United's reasonable judgment.
United may not require [CONFIDENTIAL PORTION DELETED] in the affected
Covered City-Pair. Further, United may not give notice or require additional
service in a Covered City-Pair until [CONFIDENTIAL PORTION DELETED].
Mesa shall commit to United that it will [CONFIDENTIAL PORTION DELETED]
required by United [CONFIDENTIAL PORTION DELETED]. After [CONFIDENTIAL PORTION
DELETED], taking into account the [CONFIDENTIAL PORTION DELETED] in
[CONFIDENTIAL PORTION DELETED], other [CONFIDENTIAL PORTION DELETED] needs, and
such other factors normally considered [CONFIDENTIAL PORTION DELETED] sufficient
time to [CONFIDENTIAL PORTION DELETED] unless United agrees in writing
otherwise.
[CONFIDENTIAL PORTION DELETED] may (X) allow another air carrier to serve
the affected Covered City-Pair, [CONFIDENTIAL PORTION DELETED], or (Y)
[CONFIDENTIAL PORTION DELETED] in the affected Covered City-Pair; so long as,
the [CONFIDENTIAL PORTION DELETED] is required to [CONFIDENTIAL PORTION DELETED]
of [CONFIDENTIAL PORTION DELETED] as United required [CONFIDENTIAL PORTION
DELETED], or (Z) both (X) and (Y).
(iv) If Mesa's United Express service is not serving
any Covered City-Pair, and United, in its reasonable
judgment, [CONFIDENTIAL PORTION DELETED].
Mesa shall commit to United [CONFIDENTIAL PORTION DELETED] required by
United [CONFIDENTIAL PORTION DELETED]. After committing to provide [CONFIDENTIAL
PORTION DELETED], Mesa and United shall agree [CONFIDENTIAL PORTION DELETED],
taking into account the [CONFIDENTIAL PORTION DELETED], other [CONFIDENTIAL
PORTION DELETED] needs, and such other factors normally considered [CONFIDENTIAL
PORTION DELETED] sufficient time to [CONFIDENTIAL PORTION DELETED] unless United
agrees in writing otherwise.
[CONFIDENTIAL PORTION DELETED].
(v) The parties recognize and acknowledge that
[CONFIDENTIAL PORTION DELETED] described in Section
3.C.(iii)(a) and (b), above, are based on the parties'
assumption of [CONFIDENTIAL PORTION DELETED]. If:
(a) the [CONFIDENTIAL PORTION DELETED] of
passenger seats on Mesa's [CONFIDENTIAL PORTION
DELETED] to any Covered City-Pair which are
[CONFIDENTIAL PORTION DELETED] for (X) any
[CONFIDENTIAL PORTION DELETED], or (Y) on a
-3-
<PAGE> 5
[CONFIDENTIAL PORTION DELETED], for any [CONFIDENTIAL
PORTION DELETED] United's [CONFIDENTIAL PORTION
DELETED] during the time periods, and
(b) if Mesa's operation of [CONFIDENTIAL PORTION
DELETED] in any [CONFIDENTIAL PORTION DELETED] is such
that it is exceeding [CONFIDENTIAL PORTION DELETED]
either (as applicable) (X) on [CONFIDENTIAL PORTION
DELETED], for any then[CONFIDENTIAL PORTION DELETED]
(Y) on a [CONFIDENTIAL PORTION DELETED], for any
then [CONFIDENTIAL PORTION DELETED], in United's
[CONFIDENTIAL PORTION DELETED],
then United will notify Mesa of United's determination and request Mesa
[CONFIDENTIAL PORTION DELETED] days [CONFIDENTIAL PORTION DELETED]. United may
not require [CONFIDENTIAL PORTION DELETED] the reasonable estimation of United
the [CONFIDENTIAL PORTION DELETED] would result in [CONFIDENTIAL PORTION
DELETED] in the affected Covered City-Pair. Further, United may not give notice
or require [CONFIDENTIAL PORTION DELETED] in a [CONFIDENTIAL PORTION DELETED]
until [CONFIDENTIAL PORTION DELETED].
D. Covenants. The following covenants of Mesa shall be
added to the United Express Agreement:
(i) Except as existing as of the date of this
Agreement, neither Mesa, nor any affiliate, shall enter
into an express agreement, partner agreement or
code-sharing agreement (or any amendment or supplement
thereof, or letter agreement or side letter thereto) with
any other air carrier in connection with service to or from
[CONFIDENTIAL PORTION DELETED];
(ii) With respect to any [CONFIDENTIAL PORTION
DELETED] Mesa will [CONFIDENTIAL PORTION DELETED] of United
Express service [CONFIDENTIAL PORTION DELETED] in Exhibits
H and I hereto with respect to any Covered City-Pair. It is
provided, however, that if [CONFIDENTIAL PORTION DELETED]
in any [CONFIDENTIAL PORTION DELETED], (x) [CONFIDENTIAL
PORTION DELETED] for [CONFIDENTIAL PORTION DELETED], in
United's reasonable judgment, then Mesa will have the
right to [CONFIDENTIAL PORTION DELETED], subject to Mesa
notifying United [CONFIDENTIAL PORTION DELETED] implement
or concomitantly is implementing;
(iii) Notwithstanding Mesa's right to reduce its levels
of service] (described, above, in Section 3.D.(ii)),
[CONFIDENTIAL PORTION DELETED], as of the date of this
Agreement:
(a) [CONFIDENTIAL PORTION DELETED] (as defined
below) [CONFIDENTIAL PORTION DELETED] after the date of
this Agreement;
-4-
<PAGE> 6
(b) [CONFIDENTIAL PORTION DELETED] numbers of
[CONFIDENTIAL PORTION DELETED] of [CONFIDENTIAL PORTION
DELETED] and [CONFIDENTIAL PORTION DELETED] and of
[CONFIDENTIAL PORTION DELETED] and [CONFIDENTIAL
PORTION DELETED] to or from [CONFIDENTIAL PORTION
DELETED];
(c) provided, further, that both (I) Mesa's
[CONFIDENTIAL PORTION DELETED], and (II) Mesa's
[CONFIDENTIAL PORTION DELETED].
(iv) Notwithstanding [CONFIDENTIAL PORTION DELETED]
(described above in Section 3.D.(ii)) for any city in which
Mesa (or an affiliate of Mesa):
(a) either [CONFIDENTIAL PORTION DELETED], or
[CONFIDENTIAL PORTION DELETED] its intention
[CONFIDENTIAL PORTION DELETED] (with respect to each
such city affected, the earliest of such service
commencement date, announcement date and publication
date, [CONFIDENTIAL PORTION DELETED], and
(b) as of the relevant [CONFIDENTIAL PORTION
DELETED], has not either [CONFIDENTIAL PORTION DELETED]
(which shall include publicly announcing its
[CONFIDENTIAL PORTION DELETED] (any such city covered
by this clause (iv), a "New UE City"), then
(I) [CONFIDENTIAL PORTION DELETED];
(II) [CONFIDENTIAL PORTION DELETED], subject to
an adjustment, in cases where [CONFIDENTIAL PORTION
DELETED] have not been provided [CONFIDENTIAL PORTION
DELETED] of [CONFIDENTIAL PORTION DELETED] immediately
prior to the [CONFIDENTIAL PORTION DELETED] of such
[CONFIDENTIAL PORTION DELETED] to [CONFIDENTIAL
PORTION DELETED] Mesa's United Express operations
provide, Which [CONFIDENTIAL PORTION DELETED]
shall become fixed (subject to clause (III), below)
after the completion [CONFIDENTIAL PORTION DELETED] of
such operations as [CONFIDENTIAL PORTION DELETED] of
[CONFIDENTIAL PORTION DELETED] in such [CONFIDENTIAL
PORTION DELETED];
(III) provided, further, that both (I) Mesa's
[CONFIDENTIAL PORTION DELETED], and (II) Mesa's
[CONFIDENTIAL PORTION DELETED] both [CONFIDENTIAL
PORTION DELETED] made in the [CONFIDENTIAL PORTION
DELETED] and [CONFIDENTIAL PORTION DELETED] with
respect to [CONFIDENTIAL PORTION DELETED] (both before
and after the [CONFIDENTIAL PORTION DELETED] referred
to in clause (II), above).
-5-
<PAGE> 7
E. [CONFIDENTIAL PORTION DELETED] The [CONFIDENTIAL PORTION
DELETED] Section of the United Express Agreement shall be revised to
cover (i) [CONFIDENTIAL PORTION DELETED], and (ii), in addition to the
provisions already provided therein, [CONFIDENTIAL PORTION DELETED] of
[CONFIDENTIAL PORTION DELETED] any of the [CONFIDENTIAL PORTION
DELETED] in Section 3.D above.
F. [CONFIDENTIAL PORTION DELETED] During the extended term
of the United Express Agreement, United shall [CONFIDENTIAL PORTION
DELETED] the commercial practicabilities [CONFIDENTIAL PORTION
DELETED], on mutually satisfactory terms and conditions, [CONFIDENTIAL
PORTION DELETED].
G. Assignment, Merger and Acquisitions. (i) Article 17
paragraph C of the Expanded Partner Agreement will be amended to read
as follows:
C.(1) For purposes of this Article 17.C "Qualifying
Transactions" means any a) [CONFIDENTIAL PORTION DELETED]
(except where the [CONFIDENTIAL PORTION DELETED], b)
[CONFIDENTIAL PORTION DELETED] of the assets or aircraft of
Contractor, or c) [CONFIDENTIAL PORTION DELETED] in
Contractor [CONFIDENTIAL PORTION DELETED], excluding
[CONFIDENTIAL PORTION DELETED] or [CONFIDENTIAL PORTION
DELETED] with the appropriate governmental authorities;
provided, for the purposes of this Article 17.C, Contractor
shall mean not only Contractor but [CONFIDENTIAL PORTION
DELETED]; provided, further, upon the taking of effect of
the [CONFIDENTIAL PORTION DELETED] or other transaction
which results in [CONFIDENTIAL PORTION DELETED] such
[CONFIDENTIAL PORTION DELETED] must also agree to the
provisions of this Section 17.C (and in the absence of any
prior notification to the contrary from Contractor or such
[CONFIDENTIAL PORTION DELETED], such [CONFIDENTIAL PORTION
DELETED] will be deemed to agree, and be bound by, the
provisions of this Section 17.C.
(ii) [CONFIDENTIAL PORTION DELETED].
H. [CONFIDENTIAL PORTION DELETED] United's right, under or
pursuant to the United Express Agreement, [CONFIDENTIAL PORTION
DELETED] under or pursuant to the United Express Agreement, will be
expanded to specifically include the right of United [CONFIDENTIAL
PORTION DELETED] and procedures or directly through settlement between
the parties, all or any portion of [CONFIDENTIAL PORTION DELETED] other
transferor) of any or all of the [CONFIDENTIAL PORTION DELETED], by
Mesa (or any affiliate), [CONFIDENTIAL PORTION DELETED] of any or all
[CONFIDENTIAL PORTION DELETED], pursuant to any of the other terms and
provisions of any of [CONFIDENTIAL PORTION DELETED], or in order to
[CONFIDENTIAL PORTION DELETED] of such [CONFIDENTIAL PORTION DELETED],
for any [CONFIDENTIAL
-6-
<PAGE> 8
PORTION DELETED] United may in its discretion [CONFIDENTIAL PORTION
DELETED] (or any affiliate), as [CONFIDENTIAL PORTION DELETED], or in
order to [CONFIDENTIAL PORTION DELETED] United may [CONFIDENTIAL
PORTION DELETED] as a result of Mesa's (or its affiliate's)
[CONFIDENTIAL PORTION DELETED] under any such [CONFIDENTIAL PORTION
DELETED], and which payments have not been [CONFIDENTIAL PORTION
DELETED] prior to the time that United so [CONFIDENTIAL PORTION
DELETED].
2. CHOICE OF LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS, WITHOUT
REGARD TO THE CONFLICTS OF LAW PRINCIPLES THEREUNDER.
3. Captions. The captions in this Amendment are for
convenience of reference only and shall not limit or otherwise affect
any of the terms or provisions hereof.
4. Counterparts. This Amendment may be executed in one or
more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
Please confirm your agreement by executing four counterparts of this
Amendment in the spaces provided below and returning two of the countersigned
copies of this Amendment to United.
Very truly yours,
UNITED AIR LINES, INC.
_________________________________________
Its:_____________________________________
We confirm our agreement to the foregoing
this ____ day of December, 1994:
MESA AIRLINES, INC
_________________________________________
Chief Executive Officer
-7-
<PAGE> 9
EXHIBITS A, B, C, D, E, F & G
EXHIBITS A, B, C, D, E, F & G ARE INTENTIONALLY NOT USED.
<PAGE> 10
EXHIBIT H
List of Existing United Express City-Pairs
Between Min. No. Daily Freq. of Aircraft: Min. No. Daily Passenger Seat:
[CONFIDENTIAL PORTION DELETED]:
Arrivals Departures Arrivals Departures
[CONFIDENTIAL PORTION DELETED]
* Service to begin [CONFIDENTIAL PORTION DELETED]
**Service to begin [CONFIDENTIAL PORTION DELETED]
-2-
<PAGE> 11
List of Existing United Express City-Pairs (Continued)
Between Min. No. Daily Freq. of Aircraft: Min. No. Daily Passenger Seat:
[CONFIDENTIAL PORTION DELETED]:
Arrivals Departures Arrivals Departures
[CONFIDENTIAL PORTION DELETED]
-3-
<PAGE> 12
ATTACHMENT 1 TO EXHIBIT H
[CONFIDENTIAL PORTION DELETED]
Market Frequency Seats
[CONFIDENTIAL PORTION DELETED]
Frequencies and seats in one or two stop markets are counted for all
markets where the flights stop. Minimum frequency and seats not included for
contract markets.
-4-
<PAGE> 13
EXHIBIT I
List of New United Express City-Pairs
Min. No. Daily Freq. of Aircraft: Min. No. Daily Passenger Seat:
Between [CONFIDENTIAL PORTION DELETED]:
Arrivals Departures Arrivals Departures
[CONFIDENTIAL PORTION DELETED]
-5-
<PAGE> 1
"CONFIDENTIAL TREATMENT REQUESTED"
REDACTED VERSION
<PAGE> 2
EXHIBIT 10.76
United Contract No. 125233-1
Air Wisconsin Contract No. 080-1
FIRST AMENDMENT TO OMNIBUS AGREEMENT
Dated as of January 20, 1995
Among
Air Wisconsin, Inc.,
a Wisconsin corporation,
And
United Air Lines, Inc.,
a Delaware corporation,
And
First Security Bank Of Utah,
National Association,
not in its individual capacity, except as expressly provided,
but solely as Operating Trustee,
And
First Security Bank of Utah,
National Association,
not in its individual capacity, except as expressly provided,
but solely as Owner Trustee,
And
Mesa Airlines, Inc.,
a New Mexico corporation
<PAGE> 3
FIRST AMENDMENT TO OMNIBUS AGREEMENT
THIS FIRST AMENDMENT dated as of January 20, 1995 (this "Amendment"), by and
among Air Wisconsin, Inc., a Wisconsin corporation ("Air Wisconsin"), United Air
Lines, Inc., a Delaware corporation, ("United"), First Security Bank of Utah,
national association, not in its individual capacity, except as expressly
provided, but solely as Operating Trustee under the Operating Trust Agreement
(as defined in the Definition Annex of the form of operating lease agreement
attached as Exhibit A hereto) ("Operating Trustee"), First Security Bank of
Utah, national association, not in its individual capacity, except as expressly
provided, but solely as Owner Trustee under the Owner Trust Agreement (as
defined in the Definition Annex of the form of short-term lease agreement
attached as Exhibit A hereto) ("Owner Trustee"), and Mesa Airlines, Inc., a New
Mexico corporation ("Mesa"), to that certain Omnibus Agreement (the "Agreement")
dated as of December 31, 1994, by and among Air Wisconsin, United, the Operating
Trustee, and Mesa Airlines.
WHEREAS, the parties desire to amend the Agreement to provide for the
short-term lease of three (3) of the "Sale Aircraft" (as defined in the
Agreement) prior to their sale by Air Wisconsin to Mesa, and their purchase by
Mesa from Air Wisconsin, as required by the Aircraft Purchase and Sale Agreement
(as defined in the Agreement), and desire to add Owner Trustee as a party to the
Agreement in order to effect such short-term lease;
NOW, THEREFORE, in consideration of the mutual covenants, understandings and
agreements set forth herein and other good and valuable consideration, the
parties hereto agree as follows:
SECTION 1. DEFINITIONS.
Except as otherwise defined in this Amendment, terms used herein in
capitalized form shall have the meanings attributed thereto in the Agreement.
SECTION 2. ADDITION OF OWNER TRUSTEE AS PARTY; COMMITMENT TO ENTER INTO
SHORT TERM LEASES.
Owner Trustee hereby agrees to become, and each of the other parties to the
Agreement agree to Owner Trustee's becoming, a party to the Agreement. Subject
to the terms and conditions of this Amendment, as of the date hereof, Owner
Trustee, as lessor ("Lessor"), and Mesa, as lessee ("Lessee") will enter into
two separate aircraft operating lease agreements (each, a "Short-Term Lease"),
in the form attached hereto as Exhibit A, pursuant to which Lessor will agree to
lease to Lessee, and Lessee will agree to lease from Lessor, two (2) de
Havilland model DHC-8-300 aircraft which were designated as a Sale Aircraft in
the Agreement to be purchased and sold on January 17, 1995; on January 31, 1995,
Lessor and Lessee will enter into a third Short-Term Lease, pursuant to which
Lessor will agree to lease to Lessee, and Lessee will agree to lease from
Lessor, a third (3rd) de Havilland model DHC-8-300 aircraft which was designated
as a Sale Aircraft in the Agreement and which was scheduled to be delivered on
January 31, 1995 (the form of such
<PAGE> 4
third Short-Term Lease will be substantially similar to that of the first two
Short-Term Leases entered as of the date hereof. All three (3) Short-Term Leases
will: (a) terminate on February 15, 1995; and (b) require that Mesa purchase
each such Aircraft on February 15, 1995 from Air Wisconsin upon the expiration
of its respective Short-Term Lease, at the Purchase Price set forth in the
Aircraft Purchase and Sale Agreement. Lessee shall be responsible for and shall
pay (or, if previously paid by another party, to reimburse such party) for all
reasonable fees, expenses and disbursements (i) of Lessor in connection with the
Short-Term Leases, and (ii) Crowe & Dunlevy, special FAA counsel, in connection
with the Short-Term Leases. Mesa waives the inspection, acceptance flight and
other delivery terms and conditions of the Aircraft Purchase and Sale Agreement
with respect to the Aircraft which are or become delivered to Mesa under the
Short-Term Leases.
[CONFIDENTIAL PORTION DELETED].
[CONFIDENTIAL PORTION DELETED].
SECTION 4. REPRESENTATIONS AND WARRANTIES.
A. Representations and Warranties of Operating Trustee. Operating Trustee,
in its individual capacity, hereby represents and warrants, as of the date
hereof, to Air Wisconsin, United, Owner Trustee and Mesa, which representations
and warranties shall survive the execution and delivery of this Amendment, that:
(i) Due Organization. Operating Trustee, in its individual capacity,
is a national banking association duly organized and validly existing and in
good standing under the laws of the United States of America, is a "citizen
of the United States" within the meaning of Section 40102(a)(15) of the
Federal Aviation Act and the rules and regulations of the Federal Aviation
Administration thereunder, and has the full corporate power, authority and
legal right under the laws of the United States of America pertaining to its
trust and fiduciary powers to execute, deliver and carry out the terms of
this Amendment and each of the related agreements to which it is or will be
a party;
(ii) Due Authorization; No Conflict. The execution, delivery and
performance by Operating Trustee of this Amendment and each of the related
agreements to which Operating Trustee is or will be a party have been duly
authorized by Operating Trustee and will not violate its articles of
association or by-laws or the provisions of any indenture, mortgage,
contract or other agreement to which it is a party or by which it is bound;
and
(iii) Enforceability. This Amendment and each of the related agreements
to which it is or will be a party have been duly executed and delivered by
Operating Trustee and, assuming the due authorization, execution and
delivery thereof by the other parties thereto, and also assuming the due
execution and delivery of the related agreements, this Amendment
constitutes, and the related agreements to which
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Operating Trustee is or will be a party will constitute, its legal, valid
and binding obligation, enforceable against it in accordance with their
respective terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
other similar laws affecting the rights of creditors generally and to
general equity principles.
B. Representations and Warranties of Owner Trustee. Owner Trustee, in its
individual capacity, hereby represents and warrants, as of the date hereof, to
Air Wisconsin, United, Operating Trustee and Mesa, which representations and
warranties shall survive the execution and delivery of this Amendment, that:
(i) Due Organization. Owner Trustee, in its individual capacity, is a
national banking association duly organized and validly existing and in good
standing under the laws of the United States of America, is a "citizen of
the United States" within the meaning of Section 40102(a)(15) of the Federal
Aviation Act and the rules and regulations of the Federal Aviation
Administration thereunder, and has the full corporate power, authority and
legal right under the laws of the United States of America pertaining to its
trust and fiduciary powers to execute, deliver and carry out the terms of
this Amendment and each of the related agreements to which it is or will be
a party;
(ii) Due Authorization; No Conflict. The execution, delivery and
performance by Owner Trustee of this Amendment and each of the related
agreements to which Owner Trustee is or will be a party have been duly
authorized by Owner Trustee and will not violate its articles of association
or by-laws or the provisions of any indenture, mortgage, contract or other
agreement to which it is a party or by which it is bound; and
(iii) Enforceability. This Amendment and each of the related agreements
to which it is or will be a party have been duly executed and delivered by
Owner Trustee and, assuming the due authorization, execution and delivery
thereof by the other parties thereto, and also assuming the due execution
and delivery of the related agreements, this Amendment constitutes, and the
related agreements to which Owner Trustee is or will be a party will
constitute, its legal, valid and binding obligation, enforceable against it
in accordance with their respective terms, except as such enforceability may
be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other similar laws affecting the rights of creditors generally
and to general equity principles.
C. Representations and Warranties of Air Wisconsin. Air Wisconsin hereby
represents and warrants to Operating Trustee, Owner Trustee, United and Mesa,
which representations and warranties shall survive the execution and delivery of
this Amendment and the delivery of the Aircraft, that:
(i) Due Organization. Air Wisconsin is a corporation duly organized
and validly existing and in good standing under the laws of the State of
Wisconsin and has
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the corporate power and authority, and all licenses, rights, permits,
certificates, franchises and other privileges, necessary to perform its
obligations under this Amendment and each of the related agreements to which
it is or will be a party;
(ii) Due Authorization; No Conflict. The execution, delivery and
performance by Air Wisconsin of this Amendment and each of the related
agreements to which it is or will be a party have been duly authorized by
all necessary corporate action on the part of Air Wisconsin and do not and
will not require any approval of stockholders of Air Wisconsin except those
which have been obtained and are in full force and effect on the date
hereof, and neither the execution and delivery hereof or thereof by Air
Wisconsin nor the consummation by Air Wisconsin of the transactions
contemplated hereby and by the related agreements to which it is or will be
a party, nor compliance by Air Wisconsin with any of, nor Air Wisconsin's
performance of, its obligations hereunder and thereunder will contravene or
has contravened any judgment or order applicable to or binding on it or any
Applicable Law or conflict with, result in a breach of, or constitute a
default under its corporate charter or by-laws or conflict with, result in
any breach of, or constitute a default under, or, except as contemplated
hereby, result in the creation of any Lien under, or require the consent
(not already or concurrently obtained) of any trustee or creditor pursuant
to, any indenture, credit agreement, or other agreement or instrument to
which Air Wisconsin is a party or by which it or its assets are bound; and
(iii) Enforceability. This Amendment and each of the related agreements
to which it is or will be a party has been duly executed and delivered by
Air Wisconsin and, assuming the due authorization, execution and delivery
thereof by the other parties thereto, and also assuming the due execution
and delivery of the related agreements, this Amendment constitutes, and the
related agreements to which Air Wisconsin is or will be a party will
constitute, a legal, valid and binding obligation of Air Wisconsin,
enforceable against it in accordance with their respective terms, except as
enforcement thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or similar laws affecting
creditors' rights generally, and by general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law).
D. Representations and Warranties of United. United hereby represents and
warrants to Operating Trustee, Owner Trustee, Air Wisconsin and Mesa, which
representations and warranties shall survive the execution and delivery of this
Amendment, that:
(i) Due Organization. United is a corporation duly organized and
validly existing and in good standing under the laws of the State of
Delaware and has the corporate power and authority, and all licenses,
rights, permits, certificates, franchises and other privileges, necessary to
perform its obligations under this Amendment and each of the related
agreements to which it is or will be a party;
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(ii) Due Authorization; No Conflict. The execution, delivery and
performance by United of this Amendment and each of the related agreements
to which it is or will be a party have been duly authorized by all necessary
corporate action on the part of United and do not and will not require any
approval of stockholders of United except those which have been obtained and
are in full force and effect on the date hereof, and neither the execution
and delivery hereof or thereof by United nor the consummation by United of
the transactions contemplated hereby and by the related agreements to which
it is or will be a party, nor compliance by United with any of, nor United's
performance of, its obligations hereunder and thereunder will contravene or
has contravened any judgment or order applicable to or binding on it or any
Applicable Law or conflict with, result in a breach of, or constitute a
default under its corporate charter or by-laws or conflict with, result in
any breach of, or constitute a default under, or, except as contemplated
hereby, result in the creation of any Lien under, or require the consent
(not already or concurrently obtained) of any trustee or creditor pursuant
to, any indenture, credit agreement, or other agreement or instrument to
which United is a party or by which it or its assets are bound; and
(iii) Enforceability. This Amendment and each of the related agreements
to which United is or will be a party has been duly executed and delivered
by United and, assuming the due authorization, execution and delivery
thereof by the other parties thereto, and also assuming the due execution
and delivery of the related agreements, this Amendment constitutes, and the
related agreements to which United is or will be a party will constitute,
legal, valid and binding obligations of United, enforceable against it in
accordance with their respective terms, except as enforcement thereof may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or similar laws affecting creditors' rights generally,
and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
E. Representations and Warranties of Mesa. Mesa hereby represents and
warrants to Operating Trustee, Owner Trustee, Air Wisconsin and United, which
representations and warranties shall survive the execution and delivery of this
Amendment, that:
(i) Due Organization. Mesa is a corporation duly organized and validly
existing in good standing under the laws of the State of New Mexico, is
qualified to do business as a foreign corporation in each jurisdiction where
the failure to be so qualified would have an adverse effect on Mesa's
business, operations or condition (financial or otherwise) or on its ability
to perform its obligations hereunder, and has the corporate power and
authority, and all licenses, rights, permits, certificates, franchises and
other privileges, necessary to carry on its business as presently conducted
and to perform its obligations under this Amendment and each of the related
agreements to which it is or will be a party;
(ii) Due Authorization; No Conflict. The execution, delivery and
performance by Mesa of this Amendment and each of the related agreements to
which it is or will be a party have been duly authorized by all necessary
corporate action on
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the part of Mesa, do not require any approval of the stockholders of Mesa,
and neither the execution and delivery hereof or thereof nor the
consummation of the transactions contemplated hereby and by the other
related agreements to which it is or will be a party, nor compliance by Mesa
with any of, nor Mesa's performance of all, of the terms and provisions
hereof or thereof will contravene or has contravened any judgment or order
applicable to or binding on it or any Applicable Law or conflict with,
result in any breach of, or constitute any default under, its corporate
charter or by-laws or conflict with, result in the creation of a Lien under,
or require the consent of any trustee or creditor pursuant to, any
indenture, mortgage, chattel mortgage, deed of trust, conditional sales
contract, lease, bank loan or credit agreement or other agreement or
instrument to which Mesa is a party or by which it or its assets are bound;
and
(iii) Enforceability. This Amendment and each of the related agreements
to which Mesa is or will a party has been duly executed and delivered by
Mesa, and, assuming the due authorization, execution and delivery thereof by
the other parties thereto, and also assuming the due execution and delivery
of the related agreements, this Amendment constitutes, and the related
agreements to which Mesa is or will be a party will constitute, legal, valid
and binding obligations of Mesa, enforceable against it in accordance with
their respective terms, except as enforcement thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally, and
by general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
SECTION 5. MISCELLANEOUS.
Section 5.1. Ratification. Except as amended hereby and by the amendments
entered into as of the date hereof to the other Closing Date Operative
Documents, the Agreement and each of the other Closing Date Operative Documents
continue and shall remain in full force and effect in all respects.
Section 5.2. Counterparts, Governing Law, etc. This Amendment may be
executed in any number of counterparts, and by the parties hereto in separate
counterparts, each an original, but all together constituting one and the same
instrument and contract. Neither this Amendment nor any of the terms hereof may
be terminated, amended, supplemented, waived or modified, except by an
instrument in writing signed by the party against which the enforcement of the
termination, amendment, supplement, waiver or modification is sought. The terms
of this Amendment shall be binding upon, and inure to the benefit of and shall
be enforceable by, each of the parties hereto. This Amendment shall in all
respects be governed by, and construed in accordance with, the internal laws of
the State of Illinois, including all matters of construction, validity and
performance.
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IN WITNESS WHEREOF, the parties have caused this First Amendment to Omnibus
Agreement to be executed and delivered by their respective duly authorized
officers, all as of the date first above written.
MESA AIRLINES, INC.
By_______________________________________
Its
FIRST SECURITY BANK OF UTAH, NATIONAL
ASSOCIATION, not in its individual
capacity, except as expressly provided,
but solely as Operating Trustee
By_______________________________________
Its
FIRST SECURITY BANK OF UTAH, NATIONAL
ASSOCIATION, not in its individual
capacity, except as expressly provided,
but solely as Owner Trustee
By_______________________________________
Its
UNITED AIR LINES, INC.
By_______________________________________
Its
AIR WISCONSIN, INC.
By_______________________________________
Its
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FORM OF SHORT-TERM LEASE
EXHIBIT A
