MAY BE, ENFORCEABLE IN ACCORDANCE WITH THEIR TERMS
(IN THE CASE OF THIS AGREEMENT, TO THE SAME EXTENT AS THIS AGREEMENT WAS
ENFORCEABLE AGAINST LESSEE AND GUARANTOR IMMEDIATELY PRIOR TO SUCH TRANSACTION
AND, IN THE CASE OF THE MILESTONE GUARANTY, TO THE SAME EXTENT AS THE MILESTONE
GUARANTY WAS ENFORCEABLE AGAINST THE GUARANTOR IMMEDIATELY PRIOR TO SUCH
TRANSACTION), (BB) STATING THAT ALL CONDITIONS PRECEDENT THAT ARE LEGAL IN
NATURE PROVIDED FOR IN THIS AGREEMENT AND RELATING TO SUCH TRANSACTION HAVE BEEN
FULFILLED, AND (CC) CONTAINING SUCH OTHER MATTERS AS GECC REASONABLY REQUESTS.
Upon any such consolidation, sale, conveyance, merger, transfer, or lease, the
Successor shall succeed to, shall be substituted for, and may exercise every
right and power of Lessee under this Agreement, with the same effect as if the
Successor had been named as Lessee herein.
No such merger or consolidation or
conveyance, sale, transfer, or lease of all or substantially all Lessee's assets
as an entirety shall have the effect of releasing Lessee (or any Successor) from
its liability under this Agreement.
Lessee shall pay all reasonable out of
pocket expenses of the Beneficiaries in respect of such transfer.
SECTION 5.2
AMENDMENTS, ETC.
NO AMENDMENT TO OR WAIVER OF ANY
PROVISION OF THIS AGREEMENT, NOR CONSENT TO ANY DEPARTURE BY THE OBLIGORS
HEREFROM, SHALL IN ANY EVENT BE EFFECTIVE UNLESS THE SAME SHALL BE IN WRITING
AND SIGNED BY THE BENEFICIARIES AND THE OBLIGORS, AND ANY SUCH WAIVER OR CONSENT
SHALL BE EFFECTIVE ONLY IN THE SPECIFIC INSTANCE AND FOR THE SPECIFIC PURPOSE
FOR WHICH GIVEN.
SECTION 5.3
NOTICES.
ALL REQUESTS, DEMANDS, NOTICES, AND OTHER
COMMUNICATIONS HEREUNDER SHALL BE IN WRITING (INCLUDING TELECOPIES), SHALL BE IN
ENGLISH, SHALL BE EFFECTIVE ON DELIVERY, AND SHALL BE ADDRESSED AS FOLLOWS (OR
TO SUCH OTHER ADDRESS AS ANY SUCH PERSON SHALL DESIGNATE BY NOTICE TO EACH OTHER
SUCH PERSON):
TO LESSEE:
INDEPENDENCE AIR, INC.
45200 BUSINESS COURT, SUITE 100
Dulles, VA 20166
Attention:
Chief Financial Officer
Telecopy:
(703) 650 6294
To Guarantor:
FLYi, Inc.
45200 Business Court, Suite 100
Dulles, VA 20166
Attention:
Chief Financial Officer
Telecopy:
(703) 650 6294
10
To the Beneficiaries:
c/o GE Capital Aviation Services, Inc.
201 High Ridge Road
Stamford, CT 06927
Attention:
Head of Portfolio and
Risk Management
Telecopy:
(203) 357 6680
SECTION 5.4
NO WAIVER; REMEDIES.
NO FAILURE ON THE PART OF ANY
PARTY TO EXERCISE, AND NO DELAY IN EXERCISING, ANY RIGHT HEREUNDER SHALL OPERATE
AS A WAIVER THEREOF, NOR SHALL ANY SINGLE OR PARTIAL EXERCISE OF ANY RIGHT
HEREUNDER PRECLUDE ANY OTHER OR FURTHER EXERCISE THEREOF OR THE EXERCISE OF ANY
OTHER RIGHT.
THE REMEDIES HEREIN PROVIDED ARE CUMULATIVE AND NOT EXCLUSIVE OF
ANY REMEDIES PROVIDED BY LAW OR IN EQUITY.
SECTION 5.5
SEVERABILITY.
ANY PROVISION OF THIS AGREEMENT WHICH IS
PROHIBITED OR UNENFORCEABLE IN ANY JURISDICTION SHALL, AS TO SUCH JURISDICTION,
BE INEFFECTIVE TO THE EXTENT OF SUCH PROHIBITION OR UNENFORCEABILITY WITHOUT
INVALIDATING THE REMAINING PROVISIONS HEREOF, AND ANY SUCH PROHIBITION OR
UNENFORCEABILITY IN ANY JURISDICTION SHALL NOT INVALIDATE OR