source
stringlengths 14
15
| text
stringlengths 1
2.16k
| id
stringlengths 1
4
|
|---|---|---|
agreement_26.md | (f) EACH OF LESSEE AND LESSOR HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY ALL RIGHTS TO A JURY TRIAL IN
RESPECT OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING
OUT OF THIS AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS OR
ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY OR THE
LESSOR/LESSEE RELATIONSHIP BEING ESTABLISHED), INCLUDING,
WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF
DUTY CLAIMS AND OTHER COMMON LAW AND STATUTORY CLAIMS. EACH OF
LESSOR AND LESSEE REPRESENTS AND WARRANTS THAT IT VOLUNTARILY
111
WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH ITS
LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE AND THIS WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR THE OTHER
TRANSACTION DOCUMENTS. IN THE EVENT OF LITIGATION, THIS CLAUSE
MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT; | 1100 |
agreement_26.md | (g) The parties hereto agree that, in the event of non-compliance
with any of its obligations under this Agreement by Lessee,
Lessor may bring an action against Lessee in respect of such
non-compliance under the laws of the state of New York or
under the laws governing civil aviation of the Republic of
Panama, or in any jurisdiction where Lessee or any of its
assets may be found. Lessee acknowledges that the laws
governing civil aviation of the Republic of Panama, in
Articles 20 and 24 of Law 21 of January 29, 2003, authorize
Lessor, in the event of non-compliance with any of its
obligations under this Agreement by Lessee, to terminate this
Agreement and take possession and material control of the
Aircraft in accordance with the terms of this Agreement,
without notice or judicial procedure; and
(h) Lessee shall at all times maintain an agent for service of
process in New York. Such agent shall be Corporate Service
Company (CSC), 1133 Avenue of the Americas, Suite 3100, New
York, New York 10036, and any claim form, judgment or other
notice of legal process shall be sufficiently served on Lessee
if delivered to such agent at its address for the time being.
If for any reason, such agent no longer serves as agent of
Lessee to receive service of process in New York, Lessee shall
promptly appoint another agent and advise Lessor thereof.
15.12 SOLE AND ENTIRE AGREEMENT: | 1101 |
agreement_26.md | 15.12 SOLE AND ENTIRE AGREEMENT:
(a) ENTIRE AGREEMENT; AMENDMENTS: This Agreement and the other
Transaction Documents are the sole and entire agreement
between Lessor and Lessee in relation to the leasing of the
Aircraft, and supersede all previous agreements in relation to
that leasing. Any amendments hereto shall be made in writing
and signed on behalf of Lessor and Lessee; and
(b) TRUE LEASE: The parties intend and agree that this Agreement:
(i) constitutes a "true lease" and not a "security interest"
as defined in Section 1-201(37) of the UCC; and
(ii) confers only a leasehold interest on Lessee in and to
the Aircraft on and subject to the terms of this
Agreement, and no ownership or
112
other interest with respect to the Aircraft is provided
to Lessee under this Agreement.
Lessee shall not file any tax return that is inconsistent with
the provisions of this Clause 15.12(b).
15.13 INDEMNITIES:
All rights expressed to be granted to each Indemnitee under this
Agreement (other than Lessor and Beneficiary) are given to Lessor on
behalf of that Indemnitee.
15.14 COUNTERPARTS:
This Agreement may be executed in counterparts each fully-executed
set of which will constitute one and the same document.
15.15 LANGUAGE:
All notices to be given under this Agreement will be in English. All
documents delivered to Lessor pursuant to this Agreement will be in
English, or if not in English, will be accompanied by a certified
English translation. If there is any inconsistency between the
English version of this Agreement and any version in any other
language, the English version will prevail. | 1102 |
agreement_26.md | 15.16 NO BROKERS:
Each party agrees to indemnify and hold the other harmless from and
against any and all claims, suits, damages, costs and expenses
(including, but not limited to, reasonable attorneys' fees) asserted
by any agent, broker or other third party for any commission or
compensation of any nature whatsoever based upon the lease of the
Aircraft, if such claim, suit, damage, cost or expense arises out of
any action or alleged action by the indemnifying party, its
employees or agents.
15.17 CONFIDENTIALITY:
(a) Each of Lessor and Lessee agrees that it will endeavor to keep
all terms and provisions of this Agreement and the agreements
and documents related hereto, and all other information,
material, documents and data furnished by the other party
hereunder as confidential (except Aircraft Documents), and
that all such other information, material, documents and data
will not be furnished or disclosed by it to any other Person,
firm or corporation except (to the extent that such Person
agrees to be bound by the confidentiality standards of this
Clause) Beneficiary, any Financing Party, the Manufacturer,
the manufacturer of the Engines, the Air Authority or such
other governmental agency that may require submission of other
information, material, documents or data), without the other
party's prior written consent; provided, however, that both
parties hereby
113 | 1103 |
agreement_26.md | 113
consent to the disclosure of any and all such confidential
information to their respective boards of directors and the
boards of directors of their respective affiliates; creditors,
Beneficiary, the Financing Parties and lawyers, accountants
and others providing professional services to Lessee, Lessor,
Beneficiary or any Financing Party; provided further that
neither party or other Person shall be deemed to be in breach
of this provision by virtue of it making any filing for public
record which is required under the laws of the Country of
Incorporation, the State of New York or the federal laws of
the United States of America; and | 1104 |
agreement_26.md | (b) The restrictions in Clause 15.17(a) with respect to disclosure
of confidential information shall not apply to any information
which any party demonstrates (i) becomes available to the
public other than as a result of a disclosure by such party or
its representatives; (ii) was available to such party on a
nonconfidential basis prior to its disclosure pursuant to this
Agreement; (iii) becomes available to such party on a
nonconfidential basis from a source other than the other party
hereto or its representatives, (iv) it is compelled to or
required to disclose by legal action; (v) is required in
connection with any litigation hereunder; (vi) is required in
connection with a disposition or other transfer of rights
permitted or consented to in writing by both parties
hereunder; or (vii) is required or advised based on legal
advice of counsel in order to protect and perfect the
interests and rights of Lessor hereunder; provided the
proposed transferee agrees in writing to be bound by the
provisions of this Clause 15.17, each party shall only be
required to use the same degree of care to prevent
unauthorized disclosure of the information described above as
it would use to prevent the disclosure of its own commercial
and financial information of the same or similar nature and
which it considers proprietary or confidential.
15.18 LIABILITY OF LESSOR LIMITED: | 1105 |
agreement_26.md | 15.18 LIABILITY OF LESSOR LIMITED:
It is expressly agreed and understood that all representations,
warranties and undertakings of Lessor hereunder shall be binding
upon Lessor only in its capacity as trustee under the Trust
Agreement, and neither the institution acting as Lessor nor the
Beneficiary shall be liable in its individual capacity for any
breach of Lessor's representations, warranties and undertakings
except in the case of the institution acting as Lessor for breach of
its own covenants, representations and warranties contained herein,
to the extent covenanted or made in its individual capacity.
16. DISCLAIMERS AND WAIVERS
LESSOR AND LESSEE AGREE THAT THE DISCLAIMERS, WAIVERS AND
CONFIRMATIONS SET FORTH IN CLAUSES 16.1 TO 16.3 BELOW SHALL APPLY AT
ALL TIMES DURING THE TERM WITH EFFECT FROM
114
LESSEE'S ACCEPTANCE OF THE AIRCRAFT BY EXECUTION OF THE LEASE
SUPPLEMENT NO.1, WHICH SHALL BE CONCLUSIVE EVIDENCE THAT LESSEE HAS
FULLY INSPECTED THE AIRCRAFT AND EVERY PART THEREOF AND THAT THE
AIRCRAFT, THE ENGINES, THE PARTS AND THE AIRCRAFT DOCUMENTS ARE, AS
BETWEEN LESSOR AND LESSEE, TECHNICALLY ACCEPTABLE AND ARE IN
SUITABLE CONDITION FOR DELIVERY TO AND ACCEPTANCE BY LESSEE.
16.1 EXCLUSION:
THE AIRCRAFT IS DELIVERED "AS IS, WHERE IS" AND LESSEE AGREES AND
ACKNOWLEDGES THAT AS BETWEEN LESSOR AND LESSEE: | 1106 |
agreement_26.md | (A) EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NONE OF
LESSOR, OWNER OR BENEFICIARY WILL BE DEEMED TO HAVE MADE OR
GIVEN, (WHETHER BY VIRTUE OF HAVING DONE OR FAILED TO DO ANY
ACT, OR HAVING ACQUIRED OR FAILED TO ACQUIRE ANY STATUS UNDER
OR IN RELATION TO THIS AGREEMENT OR OTHERWISE), AND WILL NOT
HAVE ANY LIABILITY IN RELATION TO, ANY WARRANTIES OR
REPRESENTATIONS, EXPRESS OR IMPLIED, WITH RESPECT TO, THE
AIRCRAFT, ANY ENGINE OR ANY PART, INCLUDING BUT NOT LIMITED
TO: THE DESCRIPTION, AIRWORTHINESS, MERCHANTABILITY,
COMPLIANCE WITH SPECIFICATIONS, OPERATION, FREEDOM FROM
INFRINGEMENT OF PATENT OR OTHER PROPRIETARY RIGHTS, FITNESS
FOR ANY PARTICULAR USE OR PURPOSE, VALUE, DURABILITY,
CONDITION, OR DESIGN, OF THE AIRCRAFT OR ANY PART, OR AS TO
THE QUALITY OF THE MATERIAL OR WORKMANSHIP, THE ABSENCE OF
LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE, OR AS TO
ANY OTHER MATTER WHATSOEVER, EXPRESS OR IMPLIED (INCLUDING ANY
IMPLIED WARRANTY ARISING FROM A COURSE OF PERFORMANCE OR
DEALING OR USAGE OF TRADE) WITH RESPECT TO THE AIRCRAFT, ANY
ENGINE OR ANY PART; OR
(B) EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NONE OF
LESSOR, OWNER OR BENEFICIARY SHALL HAVE ANY OBLIGATION OR
LIABILITY WHATSOEVER TO LESSEE (WHETHER ARISING IN CONTRACT OR
IN TORT, AND WHETHER ARISING BY REFERENCE TO NEGLIGENCE OR
STRICT LIABILITY OF LESSOR OR OTHERWISE) FOR:
(i) ANY LIABILITY, LOSS OR DAMAGE CAUSED OR ALLEGED TO BE
CAUSED DIRECTLY OR INDIRECTLY BY
115 | 1107 |
agreement_26.md | (i) ANY LIABILITY, LOSS OR DAMAGE CAUSED OR ALLEGED TO BE
CAUSED DIRECTLY OR INDIRECTLY BY
115
THE AIRCRAFT OR ANY ENGINE OR BY ANY INADEQUACY THEREOF
OR DEFICIENCY OR DEFECT THEREIN OR BY ANY OTHER
CIRCUMSTANCE IN CONNECTION THEREWITH;
(ii) THE USE, OPERATION OR PERFORMANCE OF THE AIRCRAFT OR ANY
RISKS RELATING THERETO;
(iii) ANY INTERRUPTION OF SERVICE, LOSS OF BUSINESS OR
ANTICIPATED PROFITS OR ANY INDIRECT OR CONSEQUENTIAL
LOSS OR DAMAGE; OR
(iv) THE DELIVERY, OPERATION, SERVICING, MAINTENANCE, REPAIR,
IMPROVEMENT OR REPLACEMENT OF THE AIRCRAFT, ANY ENGINE
OR ANY PART;
16.2 WAIVER:
LESSEE HEREBY WAIVES, AS BETWEEN ITSELF AND LESSOR, ALL ITS RIGHTS
IN RESPECT OF ANY WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, ON
THE PART OF LESSOR THAT IS DISCLAIMED HEREIN AND ALL CLAIMS AGAINST
LESSOR HOWSOEVER AND WHENEVER ARISING AT ANY TIME IN RESPECT OF OR
OUT OF ANY OF THE MATTERS WAIVED OR DISCLAIMED IN CLAUSE 16.1.
16.3 DISCLAIMER OF CONSEQUENTIAL DAMAGES:
LESSEE AGREES THAT IT SHALL NOT BE ENTITLED TO RECOVER, AND HEREBY
DISCLAIMS AND WAIVES ANY RIGHT THAT IT MAY OTHERWISE HAVE TO
RECOVER, LOST PROFITS OR REVENUES OR CONSEQUENTIAL DAMAGES (AS
DEFINED IN SECTION 2A-520 OF THE UNIFORM COMMERCIAL CODE OR
OTHERWISE) AS A RESULT OF ANY BREACH OR ALLEGED BREACH BY LESSOR OF
ANY OF THE AGREEMENTS, REPRESENTATIONS OR WARRANTIES OF LESSOR
CONTAINED HEREIN.
16.4 CONFIRMATION: | 1108 |
agreement_26.md | 16.4 CONFIRMATION:
LESSEE CONFIRMS THAT IT IS FULLY AWARE OF THE PROVISIONS OF THIS
CLAUSE 16 AND ACKNOWLEDGES THAT RENT AND OTHER AMOUNTS HAVE BEEN
CALCULATED NOTWITHSTANDING ITS PROVISIONS.
116
SCHEDULE 1
PART 1
DESCRIPTION OF AIRCRAFT
AIRCRAFT
Manufacturer: The Boeing Company
Model: B737-800
Serial Number: 29670
Maximum Take Off Weight (MTOW): 174,200 lbs.
Maximum Landing Weight (MLW): 146,300 lbs.
Maximum Zero Fuel Weight (MZFW): 138,300 lbs.
Specification: Manufacturer's detailed specification number
D6-38808-43-1 Revision A, dated October 31,
2003 for B737-800NG model designation
B737-8V3, including all Boeing Options and
related Seller Furnished Equipment, Buyer
Furnished Equipment and Seller Furnished
Equipment.
ENGINES
Manufacturer: Two (2) CFM International, Inc.
Model: CFM56-7B26, rated at 26,300 lbs static take
off thrust
Serial Numbers: [TBA] and [TBA]
APU
Manufacturer: Honeywell
Model: [TBA]
Serial Number: [TBA]
117
Delivery Condition Requirements
1. The Aircraft shall conform to the Description set out herein, as modified
in accordance with Manufacturer approved service bulletins issued with
respect to the aircraft on or prior to the Sale Date.
2. With a Certificate of Airworthiness for Export issued by the FAA valid on
the date of original new delivery from the Manufacturer in compliance with
all FAA AD's and FAR's to FAR 121 Standard | 1109 |
agreement_26.md | 3. With a LOPA (Lay Out Passenger Arrangement) in accordance with Boeing
database LOPA-378-1244 with 155 (14 business and 141 economy) class
seating
And in addition;
4. With MAS IFE Installed post Delivery
5. With blended winglets installed post Delivery
Note: The above post delivery modifications, items 5 & 6 above, will be
the responsibility of Lessee and to Lessee's account. However, Lessor will
reimburse Lessee the full amount of incorporating such modifications
including installation at cost, up to $950,000 (October 2003 dollars) upon
presentation with an invoice for the same.
With customary Lessor assignment to Lessee of all airframe, engine and equipment
warranties applicable to the Aircraft.
PART 2
AIRCRAFT DOCUMENTS
I. AIRCRAFT DOCUMENTS AT DELIVERY
At Delivery, the following manuals and technical records will be
delivered to Lessee:
FLIGHT OPERATIONS
1 Airplane Flight Manual
2 Operations Manual
3 Quick Reference Handbook
4 Weight and Balance Manual
5 Dispatch Deviation Procedures Guide
6 Flight Crew Training Manual
7 Performance Engineer's Manual
118
8 Jet Transport Performance Methods
9 FMC Supplemental Data Document
10 Operational Performance Software
11 Fault Reporting Manual
12 ETOPS Guide Vol. III
13 Flight Planning and Performance Manual
MAINTENANCE
14 Aircraft Maintenance Manual
15 Wiring Diagram Manual
16 Systems Schematics Manual
17 Structural Repair Manual
18 Overhaul/Component Practices Manual
19 Standard Overhaul Practices Manual
20 Standard Wiring Practices Manual
21 Non-Destructive Test Manual
22 Services Bulletins and Index
23 Corrosion Prevention Manual
24 Fault Isolation Manual
25 Fuel Measuring Stick Manual
26 Power Plan Buildup Manual | 1110 |
agreement_26.md | 23 Corrosion Prevention Manual
24 Fault Isolation Manual
25 Fuel Measuring Stick Manual
26 Power Plan Buildup Manual
27 In Service Activity Report (online only and not listed on worksheet)
28 All Operator Letters
29 Service Letters
30 Structural Item Interim Advisory
31 Maintenance Tips
32 Combined Index
MAINTENANCE PLANNING
119
33 Maintenance Planning Data Document
34 Maintenance Planning Data Tasks Masterfile (including in the digital
version only to the Maintenance Task Cards)
35 Maintenance Task Cards and Index
36 Airline Maintenance Inspection Intervals Report
37 ETOPS Guide Vol. II
38 Configuration Maintenance and Procedures for Extended Range Operations
SPARES
39 Illustrated Parts Catalog
40 Standards Books
FACILITIES AND EQUIPMENT PLANNING
41 Facilities and Equipment Planning Document
42 Special Tool and Ground Handling Equipment Drawings (online only) and
Index
43 Supplementary Tooling Documentation
44 Illustrated Tool and Equipment List/Manual
45 Aircraft Recovery Document
46 Airplane Characteristics for Airport Planning Document
47 Airplane Rescue and Fire Fighting Document
48 Engine Ground Handling Document
49 ETOPS Guide Vol. I
SUPPLIER TECHNICAL DATA
50 Service Bulletins
51 Ground Support Equipment Data
52 Provisioning Information
53 Component Maintenance/Overhaul Manuals and Index
54 Publications Index
55 Product Support Supplier Directory
120
II. AIRCRAFT DOCUMENTS DURING TERM AND AT RETURN | 1111 |
agreement_26.md | 54 Publications Index
55 Product Support Supplier Directory
120
II. AIRCRAFT DOCUMENTS DURING TERM AND AT RETURN
Lessee shall maintain all documents, manuals, data, overhaul records, records
evidencing life limited part traceability to "zero time since new," log books
original new delivery documents, component records, applicable and required FAA
forms, modifications records and inspection records relating to the Aircraft,
each Engine and each Part in accordance with the requirements of Clause 8.10 of
this Agreement and in compliance with FAR 91.417 and FAR 121.380 during the
Term, and on the Final Expiry Date, Lessee shall return the Aircraft to Lessor
together with all such records, documents and manuals. Without limiting the
generality of the foregoing, the records required to be maintained by Lessee
during the Term include all of the following, and all of the documents and
manuals listed under Clause I of this Part 2 of this Schedule 1:
A. CERTIFICATES
1 Certificate of Airworthiness (current)
2 Current Aircraft Registration Certificate
3 Export Certificate of Airworthiness (Air Authority)
4 Copy of Radio Station License (current)
5 Noise certificate (current)
6 Export Certificate of Airworthiness (original new delivery for Aircraft
and each Engine)
7 Registration cancellation notice (Air Authority)
8 Copy of Air Operator Certificate
9 Certificate of Most Recent Release to Service
10 All Supplemental Type Certificates (STC) applied to the Aircraft
B. AIRCRAFT STATUS SUMMARIES
Each status summary shall be in the English language and be certified by
operator's Quality Control or Quality Assurance as being an accurate
representation of aircraft status at transfer. All status summary
documents to be signed and dated on first page by the Lessee's Manager of
Aircraft Records or other appropriate individual. | 1112 |
agreement_26.md | 1 Aircraft record of flight time and cycles (listing accumulated hours and
cycles on specific dates).
2 Airworthiness Directive Applicability and Compliance Status Reports
(Airframe, Engines and Appliances) Format/content as follows:
121
(a) Airworthiness Directives listed in a chronological order; and
(b) All Airworthiness Directives applicable to the Aircraft,
Engine, APU or Aircraft Appliance type listed as follows:
- AD number;
- AD effective date;
- title;
- applicability status;
- accomplishment status;
- date or hours/cycles at last accomplishment action; and
- date or hours/cycles of next action due (if applicable).
3 Manufacturer's Airworthiness Directive compliance status at time of
manufacture as provided by Manufacturer at Aircraft Delivery.
4 Complete listing of all Engineering Orders accomplished against the
Aircraft. For those Engineering Orders that are driven by a Service
Bulletin, Airline will use best efforts to provide the applicable Service
Bulletin number. The listing will otherwise include:
- title;
- date of accomplishment;
5 If applicable, Corrosion Prevention and Control Programme Task Status
(showing last accomplishment and next due for each task) listing the
Corrosion Prevention and Control Programme Tasks.
6 If applicable, Ageing Aircraft Inspection and Modification Programme)
tasks status (showing task number, termination status as applicable, last
accomplishment and next due for each item if open) if applicable.
7 List of Operator implemented Modifications Incorporated (Engineering
Orders applied to Airframe, Engines and Appliances). Format/content as
follows:
(a) Operator Modifications listed in numerical order; and
(b) Aviation Authority/FAA type certificate data approval for
modification provided.
122 | 1113 |
agreement_26.md | (b) Aviation Authority/FAA type certificate data approval for
modification provided.
122
8 Structural Repair File with a detailed Scratch and Dent computer report as
prepared by Lessee detailing the location of all external repairs and
damages indicating their status in accordance with the Manufacturers
structural repair manual showing general size and location of each
external repair and basis for approval. Format/content as follows:
(a) records of accomplishment or compliance of each Major Repair
provided as follows:
- Original signed/certified "dirty finger print" records;
- Numbered and sorted by index number; and
(b) records for Major Repairs or repairs that do not conform to
the Manufacturer's Structural Repair Manual accompanied by the
appropriate Engineering Approval document issued by the State
of Washington FAA Form 8110-3 Statement or FAA Form 8100-9 (or
any successor of either), as applicable.
9 List of Major Alterations and Supplemental Type Certificate's Incorporated
(STC's) (with reference to approved documentation used to accomplish).
10 List and Status of Airframe Life Limited Parts (if any) with full back to
birth traceability support documents. Format/content as follows:
(a) each Life Limited Part fitted to the Airframe listed by part
number and unique serial number;
(b) detailed full back to birth traceability file supplied for
each individual Life Limited Part detailing on/off transaction
history for Engine LLPs, and FAA Form 8130-3's or equivalent
showing status of LLP at installation for other LLPs;
(c) original Airworthiness document issued when the Life Limited
Parts was new (such as the manufacturer's certificate of
conformity or readiness log document as appropriate); and | 1114 |
agreement_26.md | (d) if available, supplied tags and any other appropriate
certified document or job-card indicating hours/cycles or
calendar time at each on/off demonstrating unbroken trace of
the Hours/cycles or calendar time from birth up to current
time.
11 List and Status of Landing Gear Life Limited Parts for each Landing Gear
with full back to birth traceability support documents Format/content as
follows:
(a) each Life Limited Part fitted to Landing Gear listed by part
number and unique serial number;
123
(b) detailed full back to birth traceability file supplied for
each individual Life Limited Part detailing on/off transaction
history, if available, otherwise FAA form 8130-3 or
equivalent; showing status of LLPs at installation.
(c) original Airworthiness tag document issued when the Life
Limited Parts was new (such as the manufacturer's tag,
certificate of conformity or readiness log document as
appropriate); and
(d) if available, supplied tags and any other appropriate
certified document or job-card indicating hours/cycles or
calendar time at each on/off demonstrating unbroken trace of
the Hours/cycles or calendar time from birth up to current
time.
12 List and Status of Engine Life Limited Parts with full back to birth
traceability support documents. Format/content as follows:
(a) each Life Limited Part fitted to the engine identified by part
number and unique serial number;
(b) detailed full back to birth traceability file supplied for
each individual Life Limited Part detailing on/off transaction
history;
(c) original Airworthiness tag document issued when the Life
Limited Parts was new (such as the manufacturer's tag,
certificate of conformity or readiness log document as
appropriate) provided; | 1115 |
agreement_26.md | (d) full back to birth traceability file for each Life Limited
Part provided, to include the Airworthiness approval tag (JAA
form 1 or FAA form 8130-3 or equivalent) pertaining to each
subsequent (if any) on/off transaction up to and including
installation on the subject airframe; and
(e) supplied tags and any other appropriate certified document or
job-card indicating hours/cycles or calendar time at each
on/off demonstrating unbroken trace of the Hours/cycles or
calendar time from birth up to current time.
13 List and Status of Auxiliary Power Unit (APU) Life Limited Parts (if any)
with full back to birth traceability support documents Format/content as
follows:
(a) each Life Limited Part fitted to the APU identified by part
number and unique serial number;
(b) detailed full back to birth traceability file supplied for
each individual Life Limited Part detailing on/off transaction
history;
124
(c) original Airworthiness tag document issued when the Life
Limited Parts was new (such as the manufacturer's tag,
certificate of conformity or readiness log document as
appropriate) provided;
(d) full back to birth traceability file for each Life Limited
Part provided, to include the Airworthiness approval tag (JAA
form 1 or FAA form 8130-3 or equivalent) pertaining to each
subsequent (if any) on/off transaction up to and including
installation on the subject airframe; and
(e) supplied tags and any other appropriate certified document or
job-card indicating hours/cycles or calendar time at each
on/off demonstrating unbroken trace of the Hours/cycles or
calendar time from birth up to current time.
14 Check/Inspection History and Current Status
15 List and Current Status of Time-Controlled Components Format/content as
follows: | 1116 |
agreement_26.md | 14 Check/Inspection History and Current Status
15 List and Current Status of Time-Controlled Components Format/content as
follows:
(a) Time-Controlled Components fitted to the Aircraft listed by
part number and unique serial number; and
(b) Airworthiness approval tag (JAA form 1 or FAA form 8130-3 or
equivalent) provided for Time-Controlled Components.
16 Inventory of Installed Serialized On-Condition/Condition Monitored
Components . Format/content as follows:
(a) Serialised Components fitted to the Aircraft listed by part
number and unique serial number; and
(b) Airworthiness approval tag (JAA form 1 or FAA form 8130-3 or
equivalent) provided for Serialised Components.
17 List of Deferred Maintenance Items (if no Deferred Maintenance Items are
"open" at transfer, a signed statement to that effect is required).
List and Status of any Out-of-Phase Checks, Special Inspection
Requirements, Time Limited Repairs, etc. (If none exist or if
requirements are incorporated into aircraft status reports, then a
signed statement to that effect is required.)
18 If applicable, Supplemental Structural Inspection (SSID) Status (showing
last accomplishment and next due for each task). Format/content as
follows:
listing the Supplemental Structural Inspections in a numerical or
chronological order as applicable.
125
C. AIRCRAFT MAINTENANCE RECORDS
Airframe inspection, maintenance, modification, and repair documents
with maintenance and/or inspection signatures (as required) and
description of work done.
1 Aircraft Flight and Maintenance Log Sheets for one year.
2 Most recent Airframe inspection, maintenance, modification and repair
documents with maintenance and/or inspection signatures (as required) and
description of work done. | 1117 |
agreement_26.md | 3 Last "A", and all systems "C" and Structural Checks (or equivalents). (In
the event that a check is performed in phases, all phases necessary to
constitute a complete block check are required. In the event that check
content varies by multiples of the check, all multiples necessary to
constitute a complete cycle are required.)
4 Airworthiness Directive, Service Bulletin and Modification compliance
documents including engineering orders, drawings, shop cards, etc., as
necessary to establish method of compliance, quality control acceptance,
and approval authority.
5 Corrosion Prevention and Control Programme compliance documents and
inspection findings as applicable including records of accomplishment or
compliance provided (the original signed/certified "dirty finger print"
workcards).
6 Documentation for Operator Modifications such as engineering orders,
drawings, FAA Form 8110-3 or FAA Form 8100-9 (as appropriate),
Supplemental Type Certificates, Master Change Notice, FAA type certificate
conformity approval from manufacturer or approved design organisation
etc., as necessary to define work done, certification basis, and approval
authority.
7 Without duplication, supporting documentation for Operator Modifications
such as engineering orders, drawings, FAA Form 8110-3 or FAA Form 8100-9
(as appropriate), Supplemental Type Certificates, Master Change Notice,
FAA type certificate conformity approval from manufacturer or approved
design organisation etc., as necessary to define work done, certification
basis, and approval authority.
8 Aircraft weight and balance records (including weight change ledger, most
recent weighing report and individual flight control weight and balance
data).
9 Test Flight Reports, to the extent available.
10 X-Ray Inspection findings (pictures/film) as applicable, to the extent
available.
126
D. AIRCRAFT HISTORY RECORDS | 1118 |
agreement_26.md | 126
D. AIRCRAFT HISTORY RECORDS
1 Copies of maintenance logs for one year, and last available Lessee
Reliability reports and equivalent, or those retained as required by the
Federal Aviation Regulations (FARs).
2 Accident and Incident Reports (if none, then a signed "no
Incident/Accident" statement from operator's Quality Control Manager).
3 Aircraft Log Book(s) or equivalent data and Aviation Authority Operation
and Modification Log Book(s) (as applicable), for the last year or those
retained as required by the FARs.
E. ENGINE RECORDS (FOR EACH ENGINE)
Each status summary shall be in the English language and be certified by
operator's Quality Control or Quality Assurance as being an accurate
representation of engine status at transfer.
1 Certified statement as to following:
- Time and Cycles since new
- Time and Cycles since performance restoration on each engine
module
- Flying hours and cycles in Lessee's operation
2 Airworthiness Directive Applicability and Compliance Report
3 Current Manufacturer Modification and Service Bulletin Status
4 List of Operator Modifications Incorporated, if any including supporting
documentation with Manufacturer approval and JAA/FAA Type Certificate
conformity, as applicable
5 List of all Major Repairs and Alterations, if any
6 List and Current Status of Life Limited Components
7 Check/Inspection Status
8 Accessory Status sheet with certified TSO for each rotable item installed
9 Last shop visit JAA Form I/FAA form 8130-3 or equivalent serviceable tag
(or copies) for each of the accessory rotables and last JAA Form I/FAA
form 8130-3 or equivalent overhaul tags (or copies) for each of the
accessory rotables with a hard-time overhaul requirement
127 | 1119 |
agreement_26.md | 127
10 Repair, overhaul and inspection documents including JAA Form I/FAA form
8130-3 for each shop visit (minimum acceptable is shop visit history
through last performance restoration shop visit and if different, last
overhaul of each module)
11 Documents demonstrating installation and full traceability back to birth
(to new) for each Life Limited Part
12 Engine Condition Monitoring Report for last six months
13 Last three (3) months of pilot reports from the aircraft records system
for the aircraft to which engine was fitted, as required by FAA's
14 Reason for last engine removal, engine change paperwork and date of engine
removal
15 Most recent certified engine borescope (videotaped)
16 Most recent fuel, oil sampling, magnetic chip detector and vibration
survey results
17 Most recent on-wing ground performance run specifying engine OATL (outside
air temperature limit) at rated thrust
18 Last certified Test Cell Run specifying engine OATL
19 Manufacturer delivery documents i.e. Data Submittal
20 Engine Oil used
21 Any incidents during operation since last performance restoration shop
visit with action taken i.e. IFSD/FOD/oil loss etc.
F. APU RECORDS
Each status summary shall be in the English language and be certified by
operator's Quality Control or Quality Assurance as being an accurate
representation of APU status at transfer.
1 Certified statement as to following:
- Hours and Cycles since new
- Hours and Cycles since shop visit
- Lessee's Method for APU Time Accrual
2 Airworthiness Directive Applicability and Compliance Report
3 Current Manufacturer Service Bulletin Status
128
4 List of Operator Modifications Incorporated, if any including supporting
documentation with Manufacturer approval and FAA Type Certificate
conformity
5 List and Current Status of Life Limited Components | 1120 |
agreement_26.md | 5 List and Current Status of Life Limited Components
6 Accessory Status Sheet with certified time since overhaul for each rotable
item installed
7 Last overhaul tags (or copies) for each of the accessory rotables
8 Certified and Updated APU Log Book from new (with manufacturer delivery
documents and including record of installation and removal and accumulated
time and cycles)
9 Repair, overhaul and inspection documents including, as applicable, JAA
Form I/FAA forms 8130-3 and 337
10 Documents demonstrating installation and full traceability back to birth
(to new) for each Life Limited Part
11 List of Line Replaceable Units (LRU)/QEC Rotable items missing from APU
(if any for any spare APU redelivery)
12 Last three (3) months of pilot reports from the aircraft records system
for the aircraft to which APU was fitted
13 Reason for last APU removal, removal paperwork and date of APU removal
14 Last certified test cell run
G. COMPONENT RECORDS
1 Time Controlled Component Installation records and certified records of
last overhaul, if applicable
2 Documents demonstrating installation and full traceability back to birth
(to new) for each Type Certificate Life Limited Part
3 Serviceable tags for Serialised On-Condition/Condition Monitored
Components, as required by FAA
4 Landing gear records to include Life Limited Parts status and back to
birth traceability, modification status, inventory of all sub-assemblies
with part numbers and serial numbers specified, Airworthiness Directive
status including detailed workshop workscope provided by the Agreed
Maintenance Performer, last overhaul documentation including JAA form
I/FAA form 8130-3 serviceable tag
129
H. MISCELLANEOUS TECHNICAL DOCUMENTS
1 Maintenance Program Specifications including a cross-reference to
Manufacturer's maintenance planning document to be made available | 1121 |
agreement_26.md | 1 Maintenance Program Specifications including a cross-reference to
Manufacturer's maintenance planning document to be made available
2 Reference material necessary for interpretation of status summaries, i.e.
Operator part numbers Cross Reference to Manufacturer's part numbers
3 Interior configuration drawings (L.O.P.A. and Emergency Equipment
Locations; Galley Drawings)
4 Aircraft Detail Specification
5 Loose Equipment Inventory such as galley trolleys / containers / oven
trays / oven inserts
6 Seat, cushion and fabric cover Material Burn Test documents for applicable
FAA if provided by Aircraft Manufacturer during Delivery (Lessee shall be
responsible only for providing burn test documents for any replacement
materials installed after Delivery)
7 Flight Data Recorder - Print / Copy of Last Read-Out as applicable under
Lessee's Approved Maintenance Program
130
SCHEDULE 2
FORM OF ACCEPTANCE CERTIFICATE
FORM OF AIRCRAFT TECHNICAL ACCEPTANCE CERTIFICATE
This Aircraft Technical Acceptance Certificate is given, on and as of the
date set forth below, by Wells Fargo Bank Northwest, N.A., not in its individual
capacity, but solely as trustee ("TRUSTEE") for the benefit of RBS Aerospace
Limited ("RBS") under the Trust Agreement dated as of December 23, 2004 between
Trustee and RBS, to Delta Air Lines, Inc. ("SELLER") pursuant to the Aircraft
Sale and Purchase Agreement dated as of October 1, 2003 between RBS and Seller
(the "AGREEMENT", terms used herein being used as defined in the Agreement): | 1122 |
agreement_26.md | Trustee hereby indicates and confirms to Seller, its successors and
assigns, that the Trustee has, at \_\_\_\_ o'clock \_. m. on this \_\_\_\_ day of
\_\_\_\_\_\_\_\_\_\_\_\_\_, 2005 at Boeing Field, Seattle, Washington, completed its
technical inspection and flight test of the following Aircraft and inspection of
its related Technical Documents in accordance with the provisions of the
Agreement, and that Trustee is ready to accept Delivery of such Aircraft and
Technical Documents from Seller under the Agreement (it being understood that
Trustee may be entering into a delivery concessions letter with Boeing to
resolve any technical issues at a later date):
(a) one Boeing model 737-800 jet airframe, manufacturer's serial number
\_\_\_\_\_\_\_\_\_
Registration number \_\_\_\_\_\_\_\_\_\_
Total Time: \_\_\_\_\_\_\_\_\_\_
Total Cycles: \_\_\_\_\_\_\_\_\_\_
(b) Two CFM International CFM56-7B \_\_\_\_\_\_ Engines
Serial Numbers Total Time Total Cycles
1.
2.
(each of the Engines having \_\_\_\_\_\_\_\_\_ pounds thrust rating or its
equivalent)
(c) [APU manufacturer and model #]
Serial Number Total Time Total Cycles
(d) Landing Gear
Serial Number Total Time Total Cycles
Nose
Main right
Main left
(e) Fuel status: \_\_\_\_\_\_\_\_\_ kilos
(f) Loose Equipment Check List: Signed by Seller and Trustee and
attached hereto.
131
(g) Statement of Non-Conformance: Signed by Seller and Trustee and
attached hereto.
132 | 1123 |
agreement_26.md | 131
(g) Statement of Non-Conformance: Signed by Seller and Trustee and
attached hereto.
132
IN WITNESS WHEREOF, Trustee has caused this Aircraft Technical Acceptance
Certificate to be executed in its name, by its duly authorized officer(s) or
representative(s), pursuant to due corporate authority, all as of the date
written in paragraph 1 above.
WELLS FARGO BANK NORTHWEST, N.A., not in its individual capacity, but solely as
trustee for the benefit of RBS Aerospace Limited under the Trust Agreement dated
as of December 23, 2004 between itself and RBS Aerospace Limited
By: COMPANIA PANAMENA DE AVIACION, S.A.,
its agent
By: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Name: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Title: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
133
FORM OF AIRCRAFT DELIVERY CERTIFICATE
This Aircraft Delivery Certificate is given, on and as of the date set
forth below, by Wells Fargo Bank Northwest, N.A., not in its individual
capacity, but solely as trustee ("TRUSTEE") for the benefit of RBS Aerospace
Limited ("RBS") under the Trust Agreement dated as of December 23, 2004 between
Trustee and RBS, to Delta Air Lines, Inc. ("SELLER") pursuant to the Aircraft
Sale and Purchase Agreement dated as of October 1, 2003 between Buyer and Seller
(the "AGREEMENT", terms used herein being used as defined in the Agreement):
1. DETAILS OF DELIVERY | 1124 |
agreement_26.md | 1. DETAILS OF DELIVERY
Trustee hereby indicates and confirms to Seller, its successors and
assigns, that the Trustee has, at \_\_\_ o'clock \_. m. on this \_\_\_ day of
\_\_\_\_\_\_\_\_\_\_\_, 2005 at Boeing Field, Seattle, Washington, received and accepted
the following Aircraft in accordance with the provisions of the Agreement:
(a) one Boeing model 737-800 jet airframe, manufacturer's serial number
\_\_\_\_\_\_\_\_\_
Registration number \_\_\_\_\_\_\_\_
Total Time: \_\_\_\_\_\_\_\_
Total Cycles: \_\_\_\_\_\_\_\_
(b) Two CFM International CFM56-7B Engines
Serial Numbers Total Time Total Cycles
1.
2.
(each of the Engines having \_\_\_\_\_\_\_\_\_ pounds thrust rating or its
equivalent)
(c) [make and model] APU
Serial Number Total Time Total Cycles
(d) Landing Gear
Serial Number Total Time Total Cycles
Nose
Main right
Main left
(e) Fuel status: \_\_\_\_\_\_\_\_\_ kilos
(f) Loose Equipment Check List: Signed by Seller and Trustee and
attached hereto.
(g) Statement of Non-Conformance: Signed by Seller and Trustee and
attached hereto.
2. CONFIRMATION OF UNDERTAKINGS
The Trustee confirms that as of the Delivery at the time specified
above:
134 | 1125 |
agreement_26.md | The Trustee confirms that as of the Delivery at the time specified
above:
134
(i) The Aircraft was duly accepted by Trustee in accordance with and
subject to the provisions of the Agreement and the execution and delivery of
this Aircraft Delivery Certificate further confirms the acceptance of the
Aircraft by Trustee for all purposes of the Agreement, subject only to the items
noted on the Statement of Non-Conformance; and
(ii) the Aircraft is insured in accordance with the Agreement.
IN WITNESS WHEREOF, Trustee has caused this Aircraft Delivery Certificate to be
executed in its name, by its duly authorized officer(s) or representative(s),
pursuant to due corporate authority, all as of the date written in paragraph 1
above.
WELLS FARGO BANK NORTHWEST, N.A., not in its individual capacity,
but solely as trustee for the benefit of RBS Aerospace Limited
under the Trust Agreement dated as of December 23, 2004
between itself and RBS Aerospace Limited
By: COMPANIA PANAMENA DE AVIACION, S.A.,
its attorney-in-fact
By: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Name: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Title: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
135
FORM OF RECEIPT FOR TECHNICAL DOCUMENTS
One Boeing 737-800 Aircraft
Manufacturer's Serial No. \_\_\_\_\_\_\_\_\_\_\_\_ | 1126 |
agreement_26.md | One Boeing 737-800 Aircraft
Manufacturer's Serial No. \_\_\_\_\_\_\_\_\_\_\_\_
The undersigned hereby acknowledges receipt of all of the Technical
Documents listed on Exhibit D to the Aircraft Sale and Purchase Agreement dated
as of October 1, 2003 (the Agreement) between Delta Air Lines, Inc. ("SELLER")
and RBS Aerospace Limited.
By this acceptance, Trustee assumes any and all risks of the use and
ownership of all the Technical Documents or any part thereof, and for itself and
its respective officers, directors, agents, employees, representatives,
successors and assigns, does hereby release any claim it may have against Seller
arising out of the use or possession of such Documents.
WELLS FARGO BANK NORTHWEST,
N.A., not in its individual capacity,
but solely as trustee for the benefit of RBS
Aerospace Limited under the Trust Agreement
dated as of December 23, 2004 between itself
and RBS Aerospace Limited
By: COMPANIA PANAMENA DE AVIACION, S.A., for
and on behalf of the Trustee
By: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Name: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Title: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
136
SCHEDULE 3
REDELIVERY CONDITIONS AND REDELIVERY MAINTENANCE ADJUSTMENT
PART 1 RETURN CONDITIONS:
\*\*Material Redacted\*\*
\*\*7 pages\*\*
137
PART 2 | 1127 |
agreement_26.md | \*\*Material Redacted\*\*
\*\*7 pages\*\*
137
PART 2
[Intentionally left blank]
138
PART 3
MAINTENANCE REDELIVERY ADJUSTMENTS
\*\*Material Redacted\*\*
\*\*2 pages\*\*
139
SCHEDULE 4
INSURANCE REQUIREMENTS
1. Types of Insurance
The Insurances required to be maintained are as follows:
(a) Hull insurance covering loss of or damage while flying and on the ground
with respect to the Aircraft on an agreed value basis for the Agreed Value
and with a deductible not exceeding the Maximum Deductible Amount, or such
other greater amount as is consistent with market practice in the airline
insurance industry from time to time and similar carriers operating
similar aircraft in similar circumstances;
(b) Hull War and Allied Perils insurance, being such risks excluded from the
Hull All insurance to the extent reasonably commercially available from
the leading international insurance markets (except for confiscation by
the Country of Registration), for an amount no less than the Minimum War
Risk Coverage;
(c) Hull All Risks (including War and Allied Perils except when on the ground
or in transit other than by air) property insurance on all Engines and
Parts when not installed on the Aircraft on an "agreed value" basis for
their full replacement value and including engine test and running risks; | 1128 |
agreement_26.md | (d) Aircraft Third Party, Property Damage, Passenger, Baggage, Cargo and Mail
and Airline General Third Party (including Products) Legal Liability for a
combined single limit (bodily injury/property damage) of an amount not
less than the Minimum Liability Coverage for the time being for any one
occurrence (but in respect of products and personal injury liability, this
limit may be an aggregate limit for any and all losses occurring during
the currency of the policy). War and Allied Perils are also to be covered
under the policy to the extent reasonably commercially available from the
leading international airline insurance markets (which coverage shall
include but not be limited to an extended war risk coverage endorsement
equivalent to the terms of AVN52D).
2. Terms of Hull and Spares Insurance
All required hull and spares insurance, so far as it relates to the Aircraft,
will:
(a) ADDITIONAL INSUREDS: name Lessor, Beneficiary, Owner, if different from
Lessor, and each Financing Party and their respective successors and
permitted assigns as additional assureds for their respective rights and
interests;
(b) SETTLEMENT OF LOSSES: provide that any loss will be adjusted between
Lessee and Insurers subject to prior approval before settlement with
Lessor, and will be payable in Dollars to Lessor up to the Agreed Value,
for the account of all interests, except where the loss does
140
not exceed the Damage Notification Threshold, and Lessor has not notified
the insurers to the contrary, in which case the loss will be settled with
and paid to Lessee;
(c) 50/50 PROVISION: if separate "Hull" and "war risks and allied perils"
insurances are arranged, include a 50/50 provision in accordance with
market practice (AVS. 103 or its equivalent);
3. Terms of Liability Insurance | 1129 |
agreement_26.md | 3. Terms of Liability Insurance
All required liability insurances will:
(a) ADDITIONAL INSUREDS: include Lessor, Owner, if different from Lessor,
Initial Purchaser (but only for claims arising against Initial Purchaser
solely as a result of Initial Purchaser being a party in the chain of
title and where no act or omission of Initial Purchaser, its successors,
assigns, officers, or employees, allegedly contributed to the event
leading to indemnification requirement), and each of the other
Indemnitees, as additional insureds (each an "Additional Insured") for
their respective rights and interests, warranted, each as to itself only,
no operational interest; however, no party shall be included as an
Additional Insured in respect of its liability, if any, as Manufacturer,
repairer, supplier or servicing agent of the Aircraft or any part thereof;
(b) SEVERABILITY: include a severability of interests clause which provides
that the insurance, except for the limit of liability, will operate to
give each insured the same protection as if there was a separate policy
issued to each insured;
(c) PRIMARY POLICY: contain a provision confirming that the policy is primary
without right of contribution, and the liability of the insurers will not
be affected by any other insurance of which any Additional Insured may
have the benefit so as to reduce the amount payable to the additional
insureds under such policies;
4. Terms of All Insurances
All Insurances will:
(a) BEST INDUSTRY PRACTICE: be in accordance with normal industry practice of
similar airlines operating similar aircraft in similar circumstances;
(b) DOLLARS: provide cover denominated in dollars and any other currencies
which Lessor may reasonably require in relation to liability insurance; | 1130 |
agreement_26.md | (b) DOLLARS: provide cover denominated in dollars and any other currencies
which Lessor may reasonably require in relation to liability insurance;
(c) WORLDWIDE: operate on a worldwide basis subject to such limitations and
exclusions as are standard at the date hereof in the London or New York
aviation market or as Lessor may agree;
(d) BREACH OF WARRANTY: provide that, in relation to the interests of each of
the Additional Insureds, the Insurances will not be invalidated by any act
or omission by Lessee, or any other insured other than the respective
Additional Insureds seeking protection and shall
141
insure the interests of each of the additional assureds regardless of any
breach or violation by Lessee, or any other Person other than the
respective additional assured seeking protection of any warranty,
declaration or condition, contained in such Insurances;
(e) SUBROGATION: provide that the insurers will hold harmless and waive any
rights of recourse against the Additional Insureds or to be subrogated to
any rights of Lessor or Lessee;
(f) PREMIUMS: provide that the Additional Insureds will have no obligation or
responsibility for the payment of any premiums due (but reserve the right
to pay the same should any of them elect to do so) and that the insurers
will not exercise any right of set-off or counter-claim in respect of any
premium due against the respective interests of the Additional Insureds
other than outstanding premiums relating to the Aircraft, any Engine or
Part the subject of the relevant claim; | 1131 |
agreement_26.md | (g) CANCELLATION/CHANGE: provide that the Insurances will continue unaltered
for the benefit of the Additional Insureds for at least 30 days (ten days
in the event of cancellation due to non-payment of premium) after written
notice by registered mail or fax of any cancellation, change, event of
non-payment of premium or installment thereof has been sent to Lessee's
broker of record, except in the case of war risks for which 7 days (or
such lesser period as is or may be customarily available in respect of war
risks or allied perils) will be given, or in the case of war between the
five great powers or nuclear peril for which termination is automatic;
(h) REINSURANCE: any reinsurance will:
(i) be on the same terms as the original insurances and will include the
provisions of this Schedule,
(ii) provide that notwithstanding any bankruptcy, insolvency,
liquidation, dissolution or similar proceedings of or affecting the
reinsured that the reinsurers' liability will be to make such
payments as would have fallen due under the relevant policy of
reinsurance if the reinsured had (immediately before such
bankruptcy, insolvency, liquidation, dissolution or similar
proceedings) discharged its obligations in full under the original
insurance policies in respect of which the then relevant policy of
reinsurance has been effected; and
(iii) contain a "cut-through" clause in the following form (or otherwise
satisfactory to Lessor): | 1132 |
agreement_26.md | (iii) contain a "cut-through" clause in the following form (or otherwise
satisfactory to Lessor):
"The Reinsurers and the Reinsured hereby mutually agree that, in the
event of any claim arising under the reinsurances in respect of a
total loss or other claim, as provided by the Aircraft Lease
Agreement dated as of December 23, 2004 and made between Lessor and
Lessee, such claim is to be paid to the Person named as sole loss
payee under the primary insurances, the Reinsurers will in lieu of
payment to the Reinsured, its successors in interest and assigns pay
to the Person named as sole loss payee under the primary insurances
effected by the Reinsured
142
that portion of any loss due for which the Reinsurers would
otherwise be liable to pay the Reinsured (subject to proof of loss),
it being understood and agreed that any such payment by the
Reinsurers will (to the extent of such payment) fully discharge and
release the Reinsurers from any and all further liability in
connection therewith; subject to such provisions not contravening
any Law of the State of Incorporation;" and
5. Deductibles
Lessee shall be responsible for any and all deductibles under the Insurances.
6. Application of Insurance Proceeds
The Insurances will be endorsed to provide for payment of proceeds as follows:
(a) TOTAL LOSS: all insurance payments up to the Agreed Value (and all other
amounts which are then payable by Lessee to Lessor) received as the result
of a Total Loss occurring during the Lease Period will be paid to Lessor
up to the Agreed Value; | 1133 |
agreement_26.md | (b) EXCEEDING DAMAGE NOTIFICATION THRESHOLD: all insurance proceeds of any
property, damage or loss to the Aircraft, any Engine or any Part occurring
during the Lease Period not constituting a Total Loss and in excess of the
Damage Notification Threshold for repairs or replacement property upon
Lessor being satisfied that the repairs or replacements have been effected
in accordance with this Agreement. Any balance remaining shall be paid to
Lessee;
(c) BELOW DAMAGE NOTIFICATION THRESHOLD: insurance proceeds in amounts below
the Damage Notification Threshold may be paid by the insurer directly to
Lessee;
(d) DEFAULT: notwithstanding the foregoing paragraphs, if at the time of the
payment of any such insurance proceeds a Default has occurred and is
continuing, all such proceeds will be paid to or retained by Lessor to be
applied toward payment of any amounts which may be or become payable by
Lessee in such order as Lessor may elect, and any remainder after cure of
such Default shall be paid to Lessee.
In the event of a conflict between the provisions hereof and the provisions of
AVN 67B or its equivalent, the latter shall control and the provisions hereof
shall be deemed modified accordingly; provided that the provisions of AVN 67B
shall continue to reflect industry practice. To the extent that insurance
proceeds are paid to Lessee, Lessee agrees to comply with the foregoing
provisions and apply or pay over such proceeds as so required.
143
SCHEDULE 5
ACKNOWLEDGEMENTS IN CONNECTION WITH FINANCING
PART 1
NOTICE OF ASSIGNMENT
From: Wells Fargo Bank Northwest, N.A., not in its individual capacity, but
solely as trustee under the Trust Agreement
To: Compania Panamena de Aviacion, S.A.
[Date]
Dear Sirs, | 1134 |
agreement_26.md | To: Compania Panamena de Aviacion, S.A.
[Date]
Dear Sirs,
We hereby give you notice that by an Assignment dated [ ], 200\_ (the
"Assignment") between us and [ ] of [ ] ("Assignee") we have assigned as
security to Assignee all our right, title and interest in and to the Aircraft
Lease Agreement dated as of December 23, 2004 (the "Lease") between ourselves
and yourselves relating to one Boeing B[ ] aircraft with manufacturer's serial
number [ ] together with the two [ ] engines (the "Aircraft").
Henceforth all monies that may be payable by you under the Lease shall continue
to be paid to the bank account specified in the Lease unless and until the
Assignee otherwise directs, whereupon you are authorized and required to comply
with the Assignee's directions.
This notice and the instructions herein contained are irrevocable. Please
acknowledge receipt of this notice to the Assignee on the enclosed
Acknowledgement. You are hereby authorized to assume the obligations expressed
to be assumed by you thereunder to the effect that, so far as the same would
otherwise be incompatible therewith, your obligations to us under the Lease will
be modified accordingly.
Yours faithfully,
Wells Fargo Bank Northwest, N.A.,
not in its individual capacity,
but solely as trustee under
the Trust Agreement
By: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Name:
Title:
144
PART 2
ACKNOWLEDGEMENT
From: Compania Panamena de Aviacion, S.A.
To: [ ] [Date]
Dear Sirs, | 1135 |
agreement_26.md | From: Compania Panamena de Aviacion, S.A.
To: [ ] [Date]
Dear Sirs,
We acknowledge receipt of a Notice of Assignment dated [ ] (the "Assignment
Notice") relating to an assignment (the "Assignment") between Wells Fargo Bank
Northwest, N.A., not in its individual capacity, but solely as trustee under the
Trust Agreement (the "Assignor"), and you. [Subject to the fulfillment or
satisfaction of the requirements of Clause 14.2 of the Lease and your agreement
in our favor to be bound by the obligations of Lessor as set forth in and in
accordance with the Lease and further subject to the receipt of a Quiet
Enjoyment Letter in the form attached hereto and to your counter-signature and
that of Assignor hereof,] we acknowledge that we will not challenge the
effectiveness of the Assignment to confer on you all rights, title and interest
of the Assignor under the Aircraft Lease Agreement dated as of December 23, 2004
between Assignor and ourselves (the "Lease") in respect of one Boeing B[ ]
aircraft with manufacturer's serial number [ ] together with the two [ ]
engines.
In consideration of the foregoing and of payment to us of $1 and for other
valuable consideration, receipt of which we hereby acknowledge, we hereby agree
as follows: | 1136 |
agreement_26.md | If you issue to us a notice (a "Lessor Default Notice") that your rights as
assignee under the Assignment have become exercisable we agree that we will
thereafter (a) pay to you at such account as you may nominate all rentals and
other amounts from time to time payable by us under the Lease; (b) perform,
observe and comply with all our other undertakings and obligations under the
Lease in your favor and for your benefit as if you were named as "Lessor"
therein instead of the Assignor; and (c) if you so request, enter into a lease
with you or your nominee, on the same terms (mutatis mutandis) as the Lease.
If the Assignor is in breach of any of its obligations, express or implied,
under the Lease, or if any event occurs which would permit us to terminate,
cancel or surrender the Lease we will (a) immediately upon becoming aware of it,
give you notice of such breach or event, (b) accept as adequate remedy for any
such breach performance by you of such obligations within 7 days of our written
notice to you; and (c) if you so request, enter into a lease with you or your
nominee on terms identical to the Lease, mutatis mutandis.
We agree that after issue by you of any Lessor Default Notice, we will not
recognize the exercise by the Assignor of any of its rights and powers under the
Lease unless and until requested to do so by you.
145
We agree that you will have the benefit of Clause 10 of the Lease (Indemnity),
subject, however, to all of the limitations set forth in the Lease, and agree
that we are bound by the terms of such clause, as though the same were set out
herein in full, mutatis mutandis.
Yours faithfully, | 1137 |
agreement_26.md | Yours faithfully,
For and on behalf of Compania Panamena de Aviacion, S.A.
By: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Name:
Title:
ACKNOWLEDGEMENT AND AGREEMENT OF
ASSIGNOR AND ASSIGNEE:
The agreements of Compania Panamena de Aviacion, S.A. ("COPA") set forth in the
foregoing Acknowledgment are hereby acknowledged and agreed to by each of
Assignor and \_\_\_\_\_\_\_\_\_\_\_\_ ("Assignee") in all respects, and so far as the
obligations of COPA set forth above would otherwise be incompatible with the
obligations of COPA to the Assignor under the Lease, the obligations of COPA
under the Lease shall be modified accordingly.
ASSIGNOR:
Wells Fargo Bank Northwest, N.A.,
not in its individual capacity,
but solely as trustee under
the Trust Agreement
By: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Name:
Title:
ASSIGNEE:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
146
PART 3
FORM OF LETTER OF QUIET ENJOYMENT FROM OWNER
[Date]
COMPANIA PANAMENA DE AVIACION, S.A.
\_\_\_\_\_\_\_\_\_\_\_, 200\_
Dear Sirs,
Boeing B[ ] Aircraft with Manufacturer's Serial Number \_\_\_\_\_ (the "Aircraft") | 1138 |
agreement_26.md | Dear Sirs,
Boeing B[ ] Aircraft with Manufacturer's Serial Number \_\_\_\_\_ (the "Aircraft")
We refer to the Lease Agreement dated as of \_\_\_\_\_\_\_\_\_\_\_ \_\_, 200\_ (the
"Head Lease") between [Owner] (the "Owner"), as lessor, and Wells Fargo Bank
Northwest, N.A., not in its individual capacity, but solely as trustee under the
Trust Agreement (the "Lessor"), as lessee, and the Aircraft Lease Agreement
dated as of December 23, 2004 between Lessor, as lessor and Compania Panamena de
Aviacion, S.A. ("COPA"), as lessee, relating to the Aircraft (the "Lease
Agreement").
For good and valuable consideration receipt of which is hereby
acknowledged, Owner confirms to you that it will not disturb the quiet use,
possession and enjoyment of the Aircraft by COPA throughout the term of the
Lease Agreement in accordance with the terms of the Lease Agreement so long as
no Event of Default then exists under the Lease Agreement.
Yours sincerely,
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
[Owner].
147
PART 4
[FORM OF LETTER OF QUIET ENJOYMENT FROM FINANCING PARTIES]
[NAME AND ADDRESS OF FINANCING PARTY]
[Date]
Compania Panamena de Aviacion, S.A.
Dear Sirs,
Boeing B[ ] Aircraft with Manufacturer's Serial Number \_\_\_\_\_\_ (the "Aircraft") | 1139 |
agreement_26.md | Dear Sirs,
Boeing B[ ] Aircraft with Manufacturer's Serial Number \_\_\_\_\_\_ (the "Aircraft")
We refer to the Aircraft Lease Agreement dated as of \_\_\_\_\_\_\_\_\_\_\_\_\_\_, 2004
between Wells Fargo Bank Northwest, N.A., not in its individual capacity, but
solely as trustee under the Trust Agreement ("Lessor") and Compania Panamena de
Aviacion, S.A. ("COPA") relating to the Aircraft (the "Lease Agreement").
For good and valuable consideration receipt of which is hereby
acknowledged, we confirm to you that we will not disturb the quiet use,
possession and enjoyment of the Aircraft by COPA throughout the term of the
Lease Agreement in accordance with the terms of the Lease Agreement, so long as
no Event of Default then exists under the Lease Agreement.
Yours sincerely,
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
[Financing Parties]
148
PART 5
ADDITIONAL PARAGRAPHS FOR FORM OF LETTER OF QUIET ENJOYMENT | 1140 |
agreement_26.md | 148
PART 5
ADDITIONAL PARAGRAPHS FOR FORM OF LETTER OF QUIET ENJOYMENT
1. Until such time as COPA has received a notice (herein, a "Lessor Rights
Notice") from Assignee stating that Assignee has succeeded to the rights
of Lessor under the Lease Agreement to exercise and receive any of the
claims, rights, powers, privileges, remedies and other benefits of Lessor
as "Lessor" under the Lease Agreement (collectively referred to herein as
"Lessor's Rights and Powers"), COPA shall be entitled to acknowledge and
rely upon the exercise by Lessor of all of Lessor's Rights and Powers, and
any consent, notice, approval, amendment, waiver or release or other
exercise of Lessor's Rights and Powers by Lessor shall be binding upon
Lessor and Assignee for all purposes.
2. Assignee's exercise or receipt of Lessor's Rights and Powers shall be
subject to all of the terms and conditions of the Lease Agreement, to the
same extent as if exercised by Lessor.
3. Any security deposit, letter of credit and/or insurance payments under any
policy maintained by Lessee pursuant to the Lease Agreement received or
held by Assignee at any time shall be held subject to the terms of the
Lease Agreement and shall be applied only in the manner permitted under
the terms of the Lease Agreement.
149
SCHEDULE 6
FORM OF MONTHLY STATUS REPORT
FORM OF MONTHLY REPORT
REPORT FOR MONTH \_\_\_\_\_\_\_\_\_\_\_\_\_
Aircraft Type: Boeing B737-800
Manufacturer's Serial Number: [ ][ ]
Engine Type: CFM56-7B26
AIRFRAME DURING PERIOD SINCE NEW
Airframe Flight Hours
Airframe Block Hours
Aircraft Cycles | 1141 |
agreement_26.md | Time remaining to Airframe 6C/24,000 Flight Hour Block Structural Check
ENGINES ENGINE POS #1 ENGINE POS #2
Serial Number of Engine
Present Location of Engine
Engine Flight Hours since new
Cycles since new
Engine Flight Hours performed during period
Engine Cycles flown during period
Date of last shop visit/type of shop visit
Engine Cycles flown since last shop visit
Serial number of engine installed on the Airframe
APU
Serial Number of Original
Present location of original APU
APU Hours (original APU)
Date of last shop visit/type of shop visit
APU Hours since last shop visit
APU Cycles since last shop visit
150
Serial number of APU installed on the Airframe
MAINTENANCE CHECKS COMPLETED
NUMBER DATE HOURS CYCLES
"A" check
"C" check
Structural inspection
NEXT CHECKS DUE
NUMBER DATE HOURS CYCLES
"C" Check
Structural inspection
HOURS/CYCLES FLOWN DURING MONTH X US$ PER FLIGHT HOUR/CYCLE =
OVERHAUL RESERVES
Engine Performance Restoration
S/N \_\_\_\_\_\_\_\_\_\_\_\_ X / Flight Hour =
Engine Performance Restoration
S/N \_\_\_\_\_\_\_\_\_\_\_\_ X / Flight Hour =
Engine LLP
S/N \_\_\_\_\_\_\_\_\_\_\_\_ X / Cycle =
Engine LLP
S/N \_\_\_\_\_\_\_\_\_\_\_\_ X / Cycle =
APU Performance Restoration X / APU operating Cycle =
RELEVANT MAINTENANCE TASK US$ PER MONTH
Airframe 6C/24,000 Flight
Hour Block Structural Check
Landing Gear overhaul
TOTAL AMOUNT OF MAINTENANCE RESERVES
151
SCHEDULE 7 | 1142 |
agreement_26.md | Landing Gear overhaul
TOTAL AMOUNT OF MAINTENANCE RESERVES
151
SCHEDULE 7
ECONOMIC VARIABLES
AGREED VALUE \*\*Material Redacted\*\*
AIRFRAME 6C/24,000 US\*\*Material Redacted\*\* per Flight Hour
FLIGHT HOUR BLOCK
STRUCTURAL CHECK
SUPPLEMENTAL RENT
RATE
ANNUAL SUPPLEMENTAL 3%
RENT ADJUSTMENT
APU SUPPLEMENTAL US\*\*Material Redacted\*\* per Airframe Flight Hour
RENT RATE
ASSUMED LIBOR RATE 1.25%
ASSUMED RATIO Flight Hour to Cycle ratio: 2.3 to 1
ASSUMED ANNUAL 3,000 Flight Hours
UTILIZATION
ASSUMED RENT \*\*Material Redacted\*\*
CROSS-DEFAULT AMOUNT US$3,000,000
DAMAGE NOTIFICATION US$500,000
THRESHOLD
DISCOUNT RATE 4.5%
ENGINE LLP US\*\*Material Redacted\*\* per Cycle per Engine
SUPPLEMENTAL RENT
RATE
ENGINE SUPPLEMENTAL US\*\*Material Redacted\*\* per Flight Hour per Engine
RENT RATE
LANDING GEAR US\*\*Material Redacted\*\* per Month
SUPPLEMENTAL RENT
RATE
152
MAXIMUM DEDUCTIBLE US\*\*Material Redacted\*\*
AMOUNT
MINIMUM LIABILITY US\*\*Material Redacted\*\*
COVERAGE
MINIMUM WAR RISK US\*\*Material Redacted\*\*
COVERAGE
SECURITY DEPOSIT \*\*Material Redacted\*\*
AMOUNT
TAX CONTEST THRESHOLD US$50,000
WARRANTY CLAIM US$100,000
NOTIFICATION THRESHOLD | 1143 |
agreement_26.md | TAX CONTEST THRESHOLD US$50,000
WARRANTY CLAIM US$100,000
NOTIFICATION THRESHOLD
153
ASSUMED RATIO ADJUSTMENT TABLE\*
Engine Supplemental
Flight Hour / Cycle Rent Adjusted Value
------------------- -------------------
~~.75:1 \*\*Material Redacted\*\*
1:01 \*\*Material Redacted\*\*
1.25:1 \*\*Material Redacted\*\*
1.5:1 \*\*Material Redacted\*\*
1.75:1 \*\*Material Redacted\*\*
2:01 \*\*Material Redacted\*\*
2.25:1 \*\*Material Redacted\*\*
2.5:1 \*\*Material Redacted\*\*
2.75:1 \*\*Material Redacted\*\*
3:01 \*\*Material Redacted\*\*
4:01 \*\*Material Redacted\*\*
all higher \*\*Material Redacted\*\*~~
ASSUMED ANNUAL UTILIZATION ADJUSTMENT TABLE
Airframe Structural Check
Annual Utilisation Reserve Amount $
(Airframe Flight Hours) (2004)\*\*
~~2,800 66.5
3,000 62
3,200 58.5
3,400 55
3,600 52
3,800 50
4,000 47
4,200 45~~
----------
\* Operation 3000 Hrs / 1300 cycles per year (Ratio 23:1).
\*\* The above USD rates to be escalated by 3%, compounded annually, commencing
January 1, 2005.
154
RENT ADJUSTMENT FACTOR | 1144 |
agreement_26.md | 154
RENT ADJUSTMENT FACTOR
The rental shall be adjusted, upwards or downwards, by the following adjustment
factors for every one hundredth of one per cent (0.01%) change, upwards or
downwards, in the Assumed LIBOR Rate of 1.25% for the applicable 6-month period.
(Values in US$):
N FACTOR\*
SIX MONTH PERIODS ---------
(COMMENCING ON DELIVERY DATE) (US$)
----------------------------
Period 1 \*\*Material Redacted\*\*
Period 2 \*\*Material Redacted\*\*
Period 3 \*\*Material Redacted\*\*
Period 4 \*\*Material Redacted\*\*
Period 5 \*\*Material Redacted\*\*
Period 6 \*\*Material Redacted\*\*
Period 7 \*\*Material Redacted\*\*
Period 8 \*\*Material Redacted\*\*
Period 9 \*\*Material Redacted\*\*
Period 10 \*\*Material Redacted\*\*
Period 11 \*\*Material Redacted\*\*
Period 12 \*\*Material Redacted\*\*
Period 13 \*\*Material Redacted\*\*
Period 14 \*\*Material Redacted\*\*
Period 15 \*\*Material Redacted\*\*
\* Adjustment Factors to be adjusted in accordance with the Price Escalation
Adjustment from July 2004 until the Delivery Date. The formula for the
calculation of the Price Escalation Adjustment is set out in Schedule 7.
155
PRICE ESCALATION ADJUSTMENTS
The Escalation Adjustment for the Aircraft will be determined by the following
formula: | 1145 |
agreement_26.md | 155
PRICE ESCALATION ADJUSTMENTS
The Escalation Adjustment for the Aircraft will be determined by the following
formula:
P(a) = P x ((L + M)/1.3665\* - 1)
where:
P(a) = Purchase Price Adjustment (includes the Engine price)
L = 0.65 x ECI/130.1
M = 0.35 x ICI/123.6
P = Aircraft Base Purchase Price in July, 2004 Dollars
ECI is a value determined using the U.S. Department of Labor, Bureau of
Labor Statistics "Employment Cost Index for workers in aerospace
manufacturing" (ECI code 3721), calculated by establishing a three-month
arithmetic average value (expressed as a decimal and rounded to the
nearest tenth) using the values for the fifth, sixth and seventh months
prior to the month of the Scheduled Delivery Date of the applicable
Aircraft. As the Employment Cost Index values are only released on a
quarterly basis, the value released for the month of March will be used
for the months of January and February; the value for June used for April
and May; the value for September used for July and August; and the value
for December used for October and November.
ICI is a value determined using the U.S. Department of Labor, Bureau of
Labor Statistics "Producer Prices and Price Index - Industrial Commodities
Index", calculated as a 3-month arithmetic average of the released monthly
values (expressed as a decimal and rounded to the nearest tenth) using the
values for the 5th, 6th and 7th months prior to the month of the Scheduled
Delivery Date of the applicable Aircraft. | 1146 |
agreement_26.md | In determining the values of L and M, all calculations and resulting values will
be expressed as a decimal rounded to the nearest ten-thousand, where rounding of
the fourth digit will be increased to the next higher digit when the 5th digit
is equal to 5 or more. The values released by the Bureau of Labor Statistics and
available 30 days prior to the month of the Scheduled Delivery Date for each
Aircraft will be used to determine the ECI and ICI values for the applicable
months (including those noted as preliminary by the Bureau of Labor Statistics)
to calculate the Escalation Adjustment at the time of Delivery. The values will
be considered final and no further adjustments will be made after Aircraft
Delivery for any subsequent changes, revisions or corrections to published Index
values.
----------
\*This is the July 2004 Adjustment Factor assuming escalation from a July 1995
base.
156
SCHEDULE 8
FORM OF LEASE SUPPLEMENT NO. 1
THIS LEASE AGREEMENT SUPPLEMENT NO. 1 (this "Lease Supplement No. 1") is
entered into on the \_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_, 2005 between Wells Fargo Bank
Northwest, N.A., not in its individual capacity, but solely as trustee under the
Trust Agreement ("Lessor"); and Compania Panamena de Aviacion, S.A., a
corporation organized under the laws of The Republic of Panama, with its
principal place of business at Avenida Justo Arosemena y Calle 39, Apartado
1572, Panama 1, Republic of Panama ("Lessee").
RECITALS: | 1147 |
agreement_26.md | RECITALS:
A. Lessor and Lessee have previously entered into that certain Aircraft
Lease Agreement dated as of December 23, 2004 (the "Agreement"). The Agreement
provides for the execution and delivery from time to time of a Lease Supplement
substantially in the form hereof for the purpose of leasing the aircraft
described below under the Agreement as and when delivered by Lessor to Lessee in
accordance with the terms thereof.
B. The Agreement and this Lease Supplement No. 1 relate to the Aircraft,
Engines and Parts as more precisely described below. A counterpart of the
Agreement is attached hereto and this Lease Supplement and the Agreement shall
form one document.
In consideration of the premises and other good and valuable
consideration, receipt of which is hereby acknowledged, Lessor and Lessee hereby
agree as follows:
1. Lessor hereby delivers and leases to Lessee under the Agreement, and
Lessee hereby accepts, acknowledges receipt of possession and leases from Lessor
under the Agreement, that certain A[ ] aircraft bearing manufacturer's serial
number [ ] and U.S. Registration No. [ ] and the two [ ] engines bearing
manufacturer's serial numbers [ ] and [ ] (each of which engines has 750 or more
rated takeoff horsepower or the equivalent of such horsepower) described below,
together with the Aircraft Documents described in the Agreement (collectively,
the "Delivered Aircraft").
2. The Delivery Date of the Delivered Aircraft is the date of this Lease
Supplement No. 1 set forth in the opening paragraph hereof. | 1148 |
agreement_26.md | 3. The Term of the Delivered Aircraft shall commence on the Delivery Date
and shall end on but exclude each Annual Expiry Date, subject to automatic
renewal at the end of the current Lease Term for consecutive periods of one (1)
year's duration, each commencing on the Annual Expiry Date and ending on but
excluding the next succeeding Annual Expiry Date, until the Final Expiry Date,
which shall be [insert date], subject to the provisions of Clauses 11 and 13.2
of the Lease Agreement.
4. The amount of Rent for the Delivered Aircraft is set forth in Schedule
7 to the Agreement.
157
5. Lessee hereby confirms to Lessor that (i) the Delivered Aircraft and
each delivered Engine have been duly marked in accordance with the terms of
Clause 8.7(d) of the Agreement, (ii) the Aircraft is insured as required by the
Agreement, (iii) the representations and warranties of Lessee referred to in
Clause 2.1 of the Agreement are hereby repeated with effect as of the date first
above written, (iv) having inspected the Delivered Aircraft, Lessee acknowledges
that the Delivered Aircraft satisfies all conditions required for Lessee's
acceptance of Delivery as set forth in the Agreement, and (v) the execution and
delivery of this Lease Supplement No. 1 signifies absolute, unconditional and
irrevocable acceptance by Lessee of the Delivered Aircraft for all purposes of
the Agreement.
6. All of the terms and provisions of the Agreement are hereby
incorporated by reference in this Lease Supplement No. 1 to the same extent as
if fully set forth herein. | 1149 |
agreement_26.md | 7. This Lease Supplement may be executed in any number of counterparts;
each of such counterparts, shall for all purposes be deemed to be an original;
and all such counterparts shall together constitute but one and the same
instrument.
158
IN WITNESS WHEREOF, Lessor and Lessee have caused this Lease Supplement
No. 1 to be duly executed as of the day and year first above written.
LESSOR: LESSEE:
Wells Fargo Bank Northwest, N.A., COMPANIA PANAMENA DE AVIACION,
not in its individual capacity, S.A.
but solely as trustee under
the Trust Agreement
By: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ By: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Name: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ Name: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Title: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ Title: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
159
SCHEDULE 9
FORM OF IRREVOCABLE POWER OF ATTORNEY | 1150 |
agreement_26.md | 159
SCHEDULE 9
FORM OF IRREVOCABLE POWER OF ATTORNEY
The undersigned acting on behalf of Compania Panamena de Aviacion, S.A. (the
"Lessee") hereby grants a power in favor of Wells Fargo Bank Northwest, N.A.,
not in its individual capacity, but solely as trustee under the Trust Agreement
(the "Lessor"), in order that through their attorneys and legal representatives
they may, in relation to the Boeing model B[ ] aircraft MSN [ ] leased by Lessor
to Lessee, carry out the following powers:
(A) To carry out, after the occurrence and during the continuance of an Event
of Default as defined in the Lease, such acts as Lessor may be obliged to
carry out as a result of termination of the above-mentioned contract for
any of the reasons set out therein in order for Lessor to recover
possession, control and use of the aircraft in question, carrying out and
continuing such procedures as may be necessary before the authorities and
courts of the Republic of Panama in order to export such aircraft. | 1151 |
agreement_26.md | (B) To carry out, after the occurrence and during the continuance of an Event
of Default as defined in the Lease, such acts as may be necessary in
relation to the use, operation and possession (including but without
limitation the possession and Export) in relation to the return of one
Boeing model B[ ] aircraft with manufacturer's serial number [ ], together
with engines, equipment, records and other documents relating to such
aircraft and to it leaving the jurisdiction and territory in which the
aircraft is then situated, upon termination of the Aircraft Lease
Agreement (herein the "Lease") of the Aircraft between Lessor and Lessee,
whether (a) by reason of any breach which may be been declared by Lessor
in accordance with the terms of the contract in the manner required
thereby or (b) termination of the Lease in accordance with the terms and
conditions of the Lease.
(C) To grant power to such Lessor and to such Persons in order to carry out
such acts and take such measures as may be necessary or appropriate in
order to properly exercise the powers conferred above including power to
represent Lessee before the Autoridad Aeronautica Civil in The Republic of
Panama or any entity or agency thereof or any department of the government
of The Republic of Panama and in the extent to which it is necessary to
obtain control of the Aircraft, after the occurrence and during the
continuance of an Event of Default as defined in the Lease, in any
department or government agency in The Republic of Panama or any other
country which may have jurisdiction over the Aircraft.
(E) After the occurrence and during the continuance of an Event of Default as
defined in the Lease, to carry out such declarations and matters and grant
such public or private documents as may be necessary in the proper
exercise of the powers conferred in the above paragraphs. | 1152 |
agreement_26.md | (F) To delegate or substitute in favor of one or several people in whole or in
part the powers conferred in this power.
This power is granted to Lessor and its attorneys and legal representatives and
shall not be revoked, modified or limited in any manner without its consent.
COMPANIA PANAMENA DE AVIACION, S.A.
By:\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Name:
Title:
161
SCHEDULE 10
FORM OF COPA HOLDINGS, S.A. GUARANTEE
THIS GUARANTY is given as of the \_\_\_ day of December, 2004 by COPA
HOLDINGS, S.A., a company formed under the laws of the Republic of Panama and
having its principal place of business at Avenida Justo Arosemena y Calle 39,
Apartado 1572, Panama 1, Republic of Panama (the "Guarantor") in favor of WELLS
FARGO BANK NORTHWEST, N.A., not in its individual capacity, but solely as
trustee under the Trust Agreement dated as of December \_\_\_, 2004, as Lessor (the
"Lessor") for the benefit of Lessor and Beneficiary, (collectively, the
"Guaranty Beneficiaries" and individually, a "Guaranty Beneficiary").
WHEREAS | 1153 |
agreement_26.md | WHEREAS
(A) Compania Panamena de Aviacion, S.A. (the "Lessee") has leased from Lessor
and Lessor has leased to Lessee a Boeing B737-800 aircraft bearing
manufacturer's serial number 29670 (collectively together with all Parts, the
"Aircraft") pursuant to that certain Aircraft Lease Agreement dated as of
December \_\_\_, 2004 between the Lessee and Lessor (the "Lease").
(B) The Guaranty Beneficiaries desire support for the due and punctual payment,
observance and performance of all of the obligations and liabilities of Lessee
under or in respect of the Lease and the other Transaction Documents (together
with the Lease, as amended, supplemented or modified from time to time, the
"Operative Documents") to which Lessee is a party (the "Obligations"); and
(C) It is a condition precedent to the Lessor's obligation to lease the Aircraft
to Lessee and the right of the Lessee to lease the Aircraft from the Lessor that
Lessee cause the Guarantor to execute and deliver this Guaranty.
IT IS AGREED
1. INTERPRETATION
1.1 Definitions: Capitalized terms (including those within the recitals), not
defined herein shall have the meaning ascribed to them in the Lease.
2. GUARANTY
For value received and to induce the Guaranty Beneficiaries to enter into
the Operative Documents, Guarantor, as a primary obligor and not as a surety,
does hereby absolutely, unconditionally and irrevocably guarantee to the
Guaranty Beneficiaries the due and punctual payment, observance and performance
by Lessee of all of the Obligations. | 1154 |
agreement_26.md | Accordingly, upon the occurrence and during the continuance of an Event of
Default under the Lease, Guarantor shall forthwith without demand of any kind
pay, and perform all of such Obligations, to and for the benefit of the Guaranty
Beneficiaries, strictly in accordance with
the terms of the Operative Documents. Guarantor further agrees to pay any and
all reasonable out-of-pocket costs and expenses (including reasonable fees and
disbursements of legal counsel) that may be paid or incurred by any Guaranty
Beneficiary in collecting any Obligations or in preserving or enforcing any
rights under this Guaranty or under the Obligations.
3. ABSOLUTE AND CONTINUING GUARANTY
The obligations of Guarantor under this Guaranty shall be absolute,
continuing, unconditional and irrevocable and this Guaranty shall remain in full
force and effect until such time as all of the Obligations are finally paid and
performed in full. The obligations of Guarantor set forth herein constitute the
full recourse obligations of Guarantor enforceable against it to the full extent
of all its assets and properties, notwithstanding any provision in the Lease or
any other Operative Documents limiting the liability of any Guaranty Beneficiary
or any other Person.
4. STRICT OBSERVANCE | 1155 |
agreement_26.md | To the maximum extent permitted by applicable law, the obligations of
Guarantor under this Guaranty shall not in any manner be affected by: (a) any
termination, amendment or modification of, or deletion from, or addition or
supplement to, or other change in the Lease or any other any of the Operative
Documents, or any other instrument or agreement applicable to any of the parties
to such agreements, or to the Aircraft or any part thereof, or any assignment,
mortgage or permitted transfer of any thereof, or of any interest therein, or
any leasing of the Aircraft, or any furnishing or acceptance of any security, or
any release of any security, for the Obligations, or the failure of any security
or the failure of any Person to perfect any interest in any collateral security;
(b) any failure, omission or delay on the part of Lessee or any other Person to
conform or comply with any term of any Operative Document; (c) any exercise or
nonexercise of any right, remedy, power or privilege under or in respect of any
Operative Document; (d) any extension of time or payment of or settlement,
compromise or subordination of, Rent or any other Obligation; (e) the exchange,
surrender, substitution or modification of any collateral security or guarantee
for any of the Obligations; (f) any failure, omission or delay on the part of
any of the Guaranty Beneficiaries to enforce, assert or exercise any right,
power or remedy conferred on it in this Guaranty, or any such failure, omission
or delay on the part of any of the Guaranty Beneficiaries in connection with any
Operative Document, or any other action on the part of the Guaranty
Beneficiaries; (g) any voluntary or involuntary bankruptcy, insolvency, | 1156 |
agreement_26.md | Beneficiaries; (g) any voluntary or involuntary bankruptcy, insolvency,
reorganization, arrangement, readjustment, assignment for the benefit of
creditors, composition, receivership, conservatorship, custodianship,
liquidation, marshalling of assets and liabilities or similar proceedings with
respect to Lessee, Guarantor, any other Person, or any of their respective
properties or creditors, or any action taken by any trustee or receiver or by
any court in any such proceeding; (h) any invalidity, illegality or
unenforceability, in whole or in part, of any of the Operative Documents; (i)
any defect in the title, compliance with specifications, condition, design,
operation or fitness for use of or any damage to or loss or destruction of, the
Aircraft, or any interruption or cessation in the use of the Aircraft or any
portion thereof by Lessee or any other Person for any reason whatsoever
(including any governmental prohibition or restriction, condemnation,
requisition, seizure or any other act on the part of any governmental or
military authority, or any act of God or of the public enemy) regardless of the
duration thereof (even though such duration would otherwise constitute a | 1157 |
agreement_26.md | frustration of contract or an Event of Loss), whether or not resulting from
accident and whether or not without fault on the part of Lessee or any other
Person; (j) any permitted or non-permitted assignment of the Lease by Lessee or
any merger or consolidation of Lessee or Guarantor or any Affiliate into or with
any other corporation, or any sale, lease or transfer of any of the assets of
Lessee or Guarantor or any Affiliate to any other Person; (k) any change in the
ownership of any shares of capital stock of Lessee or any Affiliate, or any
change in the corporate relationship between Lessee or any Affiliate and
Guarantor, or any termination of such relationship; (l) any release or
discharge, by operation of law, of Guarantor from the performance or observance
of any obligation, covenant or agreement contained in this Guaranty, or any
release, discharge or cancellation of the Obligations, other than payment or
performance in full of the Obligations; (m) the imposition or operation of any
currency exchange controls in any country; (n) the effect of any foreign or
domestic laws, rules, regulations or actions of a court or governmental body or
entity; or (o) any other condition, event or circumstance which might otherwise
constitute a legal or equitable discharge, release or defense of a surety or
guarantor or otherwise, or which might otherwise limit recourse against
Guarantor, it being agreed that the obligations of Guarantor hereunder shall not
be discharged except by payment and performance in of the Obligations. No
failure to make demand or delay in making demand on Guarantor for satisfaction
of the obligations of Guarantor hereunder shall prejudice the right of the
Guaranty Beneficiaries to enforce the obligations of Guarantor hereunder. | 1158 |
agreement_26.md | 5. WAIVERS OF NOTICE, ETC.
To the maximum extent permitted by applicable law, Guarantor hereby waives
diligence, presentment, demand, protest or notice of any kind whatsoever with
respect to this Guaranty or the Obligations, including: (a) notice of acceptance
of this Guaranty, notice of nonpayment or nonperformance of any of the
Obligations and (b) all notices required by statute, rule of law or otherwise
now or hereafter in effect to preserve any rights against Guarantor; and (w) any
right to the enforcement, assertion or exercise against Lessee or any other
Person or the Aircraft or any other collateral security for the Obligations of
any right, power, privilege or remedy conferred in any Agreement or otherwise,
(x) any requirement to exhaust any remedies, (y) any requirement of promptness
in commencing suit against any Person who may be or become liable thereon, and
(z) any other circumstance whatsoever which might otherwise constitute a legal
or equitable discharge, release or defense of Guarantor or any surety or which
might otherwise limit recourse against Guarantor other than payment and
performance in full of the Obligations.
6. EXTENSIONS, ETC. | 1159 |
agreement_26.md | 6. EXTENSIONS, ETC.
Guarantor consents and agrees that the Guaranty Beneficiaries, or any of
them, may in their sole discretion, to the extent otherwise permitted by the
Operative Documents and to the maximum extent permitted by applicable Law, at
any time or from time to time, (i) extend or shorten the Term of the Lease
and/or renew, extend, or increase or decrease or otherwise change or modify the
amount, time, manner, place or terms of payment, performance or observance of
any or all of the Obligations, (ii) apply payments by Lessee or Guarantor to any
Obligations, (iii) exchange, release or surrender any security or property which
may at any time be held by it, (iv) release any surety or guarantor for or of
any of the Obligations, (v) settle or compromise any or all of the Obligations
with Lessee or any other Person liable thereon or (vi) subordinate the payment,
performance or observance of all or any part thereof to the payment, performance
or
observance of any other debts or obligations which may be due or owing to them
or any other Person, all in such manner and upon such terms as the Guaranty
Beneficiaries, or any of them, may deem proper (but in any case, in conformity
with the provisions of the Operative Documents), without further assent from
Guarantor, who agrees to remain bound under this Guaranty notwithstanding any
such extension, change, modification, amendment, release, surrender, settlement,
compromise or subordination.
7. NO WAIVER | 1160 |
agreement_26.md | 7. NO WAIVER
No failure on the part of any of the Guaranty Beneficiaries to exercise,
and no delay in exercising, any right or power under this Guaranty shall operate
as a waiver thereof, nor shall any single or partial exercise of any such right
or power preclude any other or further exercise thereof or the exercise of any
other right or power, or of any remedy, of any Guaranty Beneficiary under this
Guaranty, the Operative Documents or applicable law.
8. GUARANTY OF PERFORMANCE
This Guaranty is a guaranty of payment and performance and not of
collection and Guarantor waives any right to require that any action against
Lessee or any Affiliate be taken or exhausted prior to action being taken
against Guarantor. Guarantor shall pay to each Guaranty Beneficiary on demand
all reasonable attorneys' fees and other reasonable expenses incurred by such
Guaranty Beneficiary in exercising its rights and remedies provided hereunder,
together with interest on such sums as the Interest Rate, from the date of
demand by Lessor.
9. REPRESENTATIONS AND WARRANTIES
The Guarantor acknowledges that the Guaranty Beneficiaries have entered
into the Lease and the other Operative Documents to which they are,
respectively, parties on the basis of, and in reliance on, representations in
the following terms and the Guarantor represents and warrants as follows:
(a) STATUS: the Guarantor is duly incorporated with limited liability
and validly existing under the laws of the Republic of Panama; | 1161 |
agreement_26.md | (a) STATUS: the Guarantor is duly incorporated with limited liability
and validly existing under the laws of the Republic of Panama;
(b) POWERS AND AUTHORIZATIONS: the documents which contain or establish
the Guarantor's constitution and the laws of the Republic of Panama
include provisions which give power, and all necessary corporate
authority has been obtained and action taken, for the Guarantor to
own its assets, carry on its business and operations as they are now
being conducted, and sign and deliver, and perform the transactions
contemplated in this Guaranty, and this Guaranty constitutes the
valid and binding obligation of the Guarantor enforceable in
accordance with its terms;
(c) NON-VIOLATION: neither the signing and delivery of this Guaranty nor
the performance of any of the transactions contemplated herein or
therein does or will contravene or constitute a default under, or
cause to be exceeded any limitation on it or the powers of its
directors imposed by or contained in: (i) any law by which it or any
of its assets is bound or affected; (ii) any document which contains
or
establishes its constitution; or (iii) any agreement to which it is
a party or by which any of its assets is bound;
(d) CONSENTS: no authorization, approval, consent, license, exemption,
registration, recording, filing or notarization and no payment of
any duty or tax and no other action whatsoever which has not been
duly and unconditionally obtained, made or taken is necessary or
desirable to ensure the validity, enforceability or priority of the
liabilities and obligations of the Guarantor or the rights of the
Lessor under this Guaranty; | 1162 |
agreement_26.md | (e) NO DEFAULT: no event has occurred which constitutes, or which with
the giving of notice and/or the lapse of time and/or a relevant
determination would constitute, a contravention of, or default
under, any agreement or instrument by which the Guarantor or any of
its assets is bound or affected being a contravention or default
which might either have a material adverse effect on the business,
assets or condition of the Guarantor or materially and adversely
affect its ability to observe or perform its obligations under this
Guaranty;
(f) LITIGATION: no litigation, arbitration or administrative proceeding
or claim which might by itself or together with any other such
proceedings or claims either have a material adverse effect on its
business, assets or condition or materially and adversely affect its
ability to observe or perform its obligations under this Guaranty,
is presently in progress or pending or, to the knowledge of the
Guarantor, threatened against the Guarantor or any of its assets;
(g) INFORMATION: the information furnished by the Guarantor in
connection with this Guaranty does not contain any untrue statement
or omit to state any fact the omission of which makes the statements
therein, in the light of the circumstances under which they were
made, misleading, and all expressions of expectation, intention,
belief and opinion contained therein were made on reasonable grounds
after due inquiry by the Guarantor;
(h) RANKING: the obligations of the Guarantor under this Guaranty rank,
or will upon execution thereof by the Guarantor rank, at least pari
passu in point of priority and security with all other present and
future unsecured and unsubordinated obligations (including
contingent obligations) of the Guarantor other than such obligations
which may be mandatorily preferred by law; | 1163 |
agreement_26.md | (i) NO EVENT OF DEFAULT: to Guarantor's knowledge, no Event of Default
has occurred and is continuing;
(j) NO SECURITY: the Guarantor has not taken or accepted any Security
Interest from the Lessee or, in relation to the Obligations, from
any third party.
(k) INVESTMENT COMPANY: Guarantors is not an "investment company" as
defined in the investment Company Act of 1940, as amended.
(l) SUBMISSION TO JURISDICTION: Guarantor has validly submitted to the
jurisdiction of the Supreme Court of the State of New York in the
County of New York, State of New York and the United States District
Court for the Southern District of New York.
10. UNDERTAKINGS
The Guarantor undertakes with the Lessor, from the date of this Guaranty
until the Obligations have been unconditionally and irrevocably paid and
discharged in full, the satisfaction of which shall be confirmed in writing by
the Lessor, as follows:
(a) INFORMATION: it will deliver to the Lessor such additional financial
information as the Lessor may from time to time (but, absent an
Event of Default, not more frequently than once per calendar year)
reasonably request;
(b) CONSENTS: the Guarantor will obtain and promptly renew from time to
time, and will promptly deliver to the Lessor certified copies of,
any authorization, approval, consent, license, exemption,
registration, recording, filing or notarization as may be necessary
or desirable to ensure the validity, enforceability or priority of
the liabilities and obligations of the Guarantor or the rights of
the Lessor under this Guaranty and the Guarantor shall comply with
the terms of the same; | 1164 |
agreement_26.md | (c) NO SECURITY: the Guarantor shall not take or accept any security
interest from the Lessee or from any third party with respect to the
Obligations, without first obtaining the Lessor's written consent
which consent shall not be unreasonably withheld;
(d) NATURE OF OBLIGATION: Guarantor's obligation to make all payments
due hereunder and to perform its other obligations hereunder shall
be absolute and unconditional and shall in no event be subject to
any right of setoff, recoupment, deduction or counterclaim or any
other defense which Guarantor or any other Person may now or
hereafter have against any Guaranty Beneficiary or any other Person,
which Guarantor hereby waives to the full extent permitted by law,
save for payment and performance in full of the Obligations.
(e) LESSOR: Lessor (or any of its Affiliates) may set off any Obligation
of Guarantor hereunder against any obligation owed by Lessor or any
of its Affiliates to Lessee or Guarantor or any of their Affiliates,
and, in the case of Lessor, to the extent permitted by Law, shall
notify Guarantor promptly after any such set-off provided that the
failure to give such notice shall not impair any rights or remedies
of the Guaranty Beneficiaries hereunder.
(f) SUBROGATION: Guarantor shall become entitled to subrogation rights
by reason of performance of any of its obligations hereunder,
provided, that such rights are and shall be subject and subordinate
to the rights of the Guaranty Beneficiaries against Lessee under the
Lease in the event of any insolvency, bankruptcy, liquidation,
reorganization or other similar proceedings related to Lessee, or in
the event of | 1165 |
agreement_26.md | any proceedings for voluntary liquidation, dissolution or other
winding up of Lessee, whether or not involving insolvency or
bankruptcy proceedings, such that the Obligations shall be finally
paid and performed in full before any payment in respect of a
subrogation claim by Guarantor shall be made by or on behalf of
Lessee and (b) notwithstanding the foregoing provisions or any other
provision of this Guaranty or the Lease, if an Event of Default is
in existence, Guarantor hereby irrevocably waives and relinquishes
any and all rights of subrogation, contribution, reimbursement or
other payment from Lessee or Lessee's estate, whether arising by
contract or operation of law (including any such right arising under
the United States Bankruptcy Code) or otherwise arising out of, or
on account of, any sums which have been claimed or are thereafter
claimable against Guarantor under this Guaranty, which waiver shall
be in effect unless and until all of the Obligations shall have been
finally paid and performed in full. The waiver and relinquishment of
rights provided for in the immediately preceding sentence shall be
irrevocable and unconditional regardless of whether any such right
is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, secured, or unsecured. | 1166 |
agreement_26.md | (g) BANKRUPTCY, ETC.: Guarantor agrees that if at any time all or any
part of any payment or performance theretofore applied by any
Guaranty Beneficiary to any of the Obligations is or must be
rescinded or returned by any Guaranty Beneficiary for any reason
whatsoever (including the insolvency, bankruptcy or reorganization
of Lessee), such Obligations shall, for the purposes of this
Guaranty, to the extent that such payment or performance is or must
be rescinded or returned, be deemed to have continued in existence,
notwithstanding such application by the Guaranty Beneficiaries, and
this Guaranty shall continue to be effective or be reinstated, as
the case may be, as to such Obligations, all as though such
application by a Guaranty Beneficiary had not been made. If an Event
of Default shall at any time have occurred and be continuing, or the
exercise of any remedy pursuant to the Lease, shall at such time be
prevented by reason of the pendency against Lessee or any other
Person of a case or proceeding under a bankruptcy, insolvency or
similar law, or if the Lease or any other Operative Document shall
be terminated as a result of a rejection or disaffirmance in a
bankruptcy, insolvency or similar proceeding involving Lessee,
Guarantor or any affiliate of Lessee or Guarantor, Guarantor agrees
that, for purposes of this Guaranty and its obligations hereunder,
the Lease or such other operative Documents shall be deemed to be in
default with the same effect as if the Lease or such other Operative
Documents had been enforceable in accordance with the terms thereof,
and Guarantor shall forthwith pay all amounts, or any of them, to be
paid thereunder, any interest thereon and any other amounts | 1167 |
agreement_26.md | and Guarantor shall forthwith pay all amounts, or any of them, to be
paid thereunder, any interest thereon and any other amounts
guaranteed hereunder or provided herein. In the circumstance
described in the preceding sentence, any election of remedies and
any determination of any such amount may be made solely for purposes
of this Guaranty and any required notice or demand upon the Lessee
is hereby waived by the Guarantor and may, at the option of a
Guaranty Beneficiary, be given or made upon the Guarantor. Guarantor
agrees that it shall be liable for the full amount of the
Obligations guaranteed hereby, irrespective of and without regard
to, any modification, | 1168 |
agreement_26.md | limitation or discharge of liability, rejection or disaffirmance
that may result from or in connection with any bankruptcy,
insolvency or similar proceeding involving Lessee or any other
Person.
11. CERTIFICATES
A certificate of the Lessor issued at any time setting forth the amount of
any Obligations not then paid by the Lessee shall be conclusive evidence of such
amount against the Guarantor in the absence of any manifest error.
12. MISCELLANEOUS PROVISIONS
12.1 Any communication or document to be made by one person to another pursuant
to this Guaranty shall be made in writing and shall be delivered personally, or
by courier (where the courier company is a reputable international or local
company) or by facsimile communication (unless that other person has, by fifteen
(15) days' written notice to the Lessor, specified another office address and/or
facsimile number) to that other person at the office address or facsimile number
set out below, and shall be deemed to have been made or delivered:
(a) in the case of any communication made by facsimile, when
transmission of such facsimile communication has been completed and
such transmission has been separately acknowledged by such other
person in a manner provided for herein; or
(b) in the case of any communication made by courier, on the date of
delivery as evidenced by the records of the courier company, | 1169 |
agreement_26.md | (b) in the case of any communication made by courier, on the date of
delivery as evidenced by the records of the courier company,
Provided that (i) any communication or document to be made or delivered to the
Lessor or any Guaranty Beneficiary shall be effective only when received by the
Lessor, and then only if the same is expressly marked for the attention of the
department or officer identified below (or such other department or officer as
the Lessor shall from time to time specify for this purpose) and (ii) any notice
received after close of business on any day shall not be deemed to have been
received until commencement of business on the immediately succeeding Business
Day.
To the Guarantor:
Address: COMPANIA PANAMENA DE AVIACION, S.A.
Avenida Justo Arosemena y Calle 39
Apartado 1572
Panama 1, Republic of Panama
Facsimile: 011.507.227.2522
Attention: Vice President - Finance
With a copy to:
Address: Greenberg Traurig, P.A.
1221 Brickell Ave
Miami, Florida 33131
Facsimile: (305) 579 0717
Attention: Jeffrey Tenen
To the Lessor or any Guaranty Beneficiary:
Address: WELLS FARGO BANK NORTHWEST, N.A.,
as trustee and Lessor
299 South Main Street
Salt Lake City, UT 84111
Facsimile: 801-246-5053
Attention: Corporate Trust Department
With a copy to:
Address: RBS AEROSPACE LIMITED
1 George's Quay Plaza
George's Quay
Dublin 2
Ireland
Facsimile: 353-1-448-3390
Attention: Head of Transaction Execution and Management | 1170 |
agreement_26.md | 12.2 Any payment to the Lessor to be made hereunder shall be made:
(a) to the Lessor for the account of the Lessor or to such other bank or
account as the Lessor may notify the Guarantor at the time of making
a demand under this Guaranty; and
(b) in full without set off or counterclaim and free and clear of and
without any deduction for, on or on account of any present or future
taxes, levies, imposts, duties or other charges whatsoever unless
the Guarantor is compelled by law to make any such deduction. If the
Guarantor is compelled by law to make any such deduction from any
payment to the Lessor, then the Guarantor will pay to the Lessor
such additional amount as will result in the receipt by the Lessor
of the full amount stated in any demand made by the Lessor under
this Guaranty.
12.3 If the Guarantor fails to pay any amount to the Lessor upon receipt of
written demand in accordance with this Guaranty, the Guarantor shall pay
interest in U.S. dollars on that amount from the time of default up to the time
of actual payment (as well after as before judgment) at the Interest Rate. | 1171 |
agreement_26.md | 12.4 If, under any law, whether as a result of a judgment against the Guarantor
or the liquidation of the Guarantor or for any other reason, any payment under
or in connection with this Guaranty is made or is recovered in a currency (the
"Other Currency") other than that in which it is required to be paid hereunder
(the "Original Currency") then, to the extent that the payment to the Lessor
(when converted at the rate of exchange on the date of payment or, in the case
of a liquidation, the latest date for the determination of liabilities permitted
by the applicable law) falls short of the amount unpaid under this Guaranty, the
Guarantor shall, as a separate and independent obligation, fully indemnify the
Lessor against the amount of the shortfall; and for the purposes of this
sub-clause, "rate of exchange" means the rate at which the Lessor is able on the
relevant date to purchase the original currency in New York with the other
currency.
12.5 Any determination and demand in respect of any amount at any time due and
owing by the Guarantor to the Lessor pursuant to this Guaranty shall be made on
the same basis as is applicable to a demand or determination made by the Lessor
under the Lease. | 1172 |
agreement_26.md | 12.6 If, in respect of any particular amount due and owing to the Lessor under
the Lease, a payment is made by the Guarantor under this Guaranty and that
amount is also paid under the Lease, the Lessor agrees, subject to applicable
law and provided that no Default or Event of Default has occurred and is
continuing (and to the extent it determines it can do so without prejudice to
the retention of the payment made under the Lease under applicable bankruptcy or
any other laws affecting creditors rights in general), to reimburse the
Guarantor for the amount paid hereunder which corresponds to that particular
amount.
12.7 If any provision of this Guaranty becomes invalid, illegal or unenforceable
in any respect under any law, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired.
13. CHOICE OF LAW
This Guaranty is governed by, and shall be construed in accordance with,
the laws of the State of New York including Title 14 Sections 5-1401 and 5-1402
of the General Obligations Law of the State of New York.
14. JURISDICTION AND WAIVER
14.1 (a) The parties agree that the Supreme Court of the State of New York
sitting in New York County and the United States District Court for the Southern
District of New York shall have non-exclusive jurisdiction to hear and determine
any suit, action or proceeding, and to settle any disputes, which may arise out
of or in connection with this Guaranty (including, without limitation, claims
for set-off or counterclaim) or otherwise arising in connection with this
Guaranty; | 1173 |
agreement_26.md | (b) the Lessor or any Guaranty Beneficiary may in its absolute
discretion take proceedings in the courts of any other country which
may have jurisdiction, to whose jurisdiction the Guarantor
irrevocably submits;
(c) the Guarantor irrevocably waives any objections on the ground of
venue or forum non conveniens or any similar grounds;
(d) the Guarantor irrevocably consents to service of process by mail or
in any other manner permitted by the relevant law.
14.2 The Guarantor irrevocably waives and agrees not to claim any immunity from
suits and proceedings (including actions in rem) and from all forms of execution
or attachment (including attachment prior to judgment and attachment in aid of
execution) to which it or its property is now or may hereafter become entitled
under the laws of any jurisdiction and declares that such waiver shall be
effective to the fullest extent permitted by such laws.
14.3 The Guarantor shall at all times maintain an agent for service of process
in New York. Such agent shall be Corporation Service Company (CSC) with its
offices at 1133 Avenue of the Americas, Suite 3100, New York, NY 10036, and any
writ, judgment or other notice of legal process shall be sufficiently served on
the Guarantor if delivered to such agent at its address for the time being. The
Guarantor undertakes not to revoke the authority of the above agent and if, for
any reason, any such agent no longer serves as agent of the Guarantor to receive
service of process, the Guarantor shall promptly appoint another such agent and
advise the Lessor thereof. | 1174 |
agreement_26.md | 14.4 This Guaranty shall be binding upon the successors and assigns of Guarantor
and shall inure to the benefit of the Guaranty Beneficiary, and its permitted
successors and assigns.
[Continued on next page]
This Guaranty has been duly executed on the date first above written.
COPA HOLDINGS, S.A.
By:\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Name:
Title:
AGREED AND ACCEPTED:
WELLS FARGO BANK NORTHWEST, N.A.,
not in its individual capacity but solely as trustee, Lessor
By: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Name:\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Title:\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Date:\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
RBS AEROSPACE LIMITED | 1175 |
agreement_26.md | RBS AEROSPACE LIMITED
By: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Name:\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Title:\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Date:\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
SCHEDULE 11
AIRWORTHINESS DIRECTIVE COST SHARING FORMULA
If the cost to the Lessee of effecting any Airworthiness Directive (not to
include a Mandatory Order) issued by the FAA (whether or not also issued by the
JAA) after the Delivery Date exceeds US$200,000 (2003), Lessor shall, upon
presentation to Lessor by Lessee of substantiating documentation and so long as
no Default or Event of Default has occurred and is continuing, reimburse Lessee
within 30 days for such Aircraft for a portion of such cost, such reimbursement
to be calculated as follows:
R= (60 - M) x (C - US$200,000 (2003)\*)
--------
60
where
"R" means the portion of the cost of compliance to be reimbursed to
Lessee. | 1176 |
agreement_26.md | where
"R" means the portion of the cost of compliance to be reimbursed to
Lessee.
"M" means the number of months (including parts thereof) between (1) the
earlier of (a) the date of completion of such modification and (b) the
originally required date thereof and (2) the end of the Lease Term. Where
the original required date thereof is after the end of the Lease Term for
such Aircraft, M shall equal 0.
"C" means the cost of completing such modification at an Approved
Maintenance Provider's normal commercial labour charge rates plus
reasonable cost of materials, subtracting any subsidy, warranty payment or
other benefit provided to Lessee and excluding any loss or expenses
incurred because of inability to operate such Aircraft.
Should an Event of Default have occurred and be at any relevant time continuing,
Lessor shall retain such amount until such Event of Default or Default shall
have been cured whereupon it shall pay to Lessee any such amount less any
portion thereof as was applied by Lessor to cure such Default or Event of
Default.
----------
\* escalated at 3% commencing on January 1, 2005 and each annual anniversary date
thereafter.
SCHEDULE 12
FORM OF WARRANTY ASSIGNMENT
\_\_\_\_\_\_\_\_\_, 200\_
The Boeing Company
P.O. Box 3707
Seattle, Washington 98124-2207
Attention: Vice President - Contracts
Mail Code 21-34
Ladies and Gentlemen: | 1177 |
agreement_26.md | Attention: Vice President - Contracts
Mail Code 21-34
Ladies and Gentlemen:
In connection with: (i) the sale by Delta Air Lines Inc. ("SELLER") to Wells
Fargo Bank Northwest, N.A., not in its individual capacity but solely as trustee
("OWNER TRUSTEE") under the Trust Agreement dated as of December 23, 2004
between RBS Aerospace Limited ("RBS") and Wells Fargo Bank Northwest N.A., as
trustee ("BUYER") of the aircraft identified below, and (ii) the lease by Buyer
of such aircraft to Compania Panamena de Aviacion, S.A. ("LESSEE"); reference is
made to:
A. Purchase Agreement No. 2022 (the "PURCHASE AGREEMENT") and the Aircraft
General Terms Agreement AGTA-DAL (the "AGTA"), each dated as of October 21,
1997, between The Boeing Company ("BOEING") and Seller, excluding, as it relates
to the Purchase Agreement, all Articles, Tables, Exhibit A and Supplemental
Exhibits BFE/CDSPE/SPE/CSE, CS1, EE1, EWCBP1 and all Letter Agreements and, as
it relates to the AGTA, Articles 2 through 10, 13, 16.7, Exhibits A through E
and Appendices 8 and 9, but including Attachments 1, 2, 3 and 7 to Letter
Agreement No. 6-1162-RLL-3692 to the Purchase Agreement (titled "Lombard
Aviation Capital Matters") (the "AGREEMENT") under which Seller purchased
certain Boeing Model 737 aircraft, including the aircraft bearing Manufacturer's
Serial No. \_\_\_\_\_\_\_\_ (the "AIRCRAFT"). | 1178 |
agreement_26.md | B. Aircraft Sale and Purchase Agreement dated as of October 1, 2003 between
Seller and RBS (the "ASPA"); and
C. Aircraft Lease Agreement (the "Lease") dated as of \_\_\_\_\_\_\_\_\_\_\_\_, as
supplemented, between Buyer and Lessee.
Capitalized terms used herein without definition will have the same meaning as
in the Agreement.
Seller has sold the Aircraft to Buyer under the ASPA. To accomplish: (i) a
transfer of certain rights from Seller to Buyer in respect of the Aircraft under
the Agreement, all as authorized by the provisions thereof, the parties hereto
agree as follows:
1. Seller hereby assigns to Buyer all of the rights of "Customer" in respect of
the Aircraft under the provisions of the Agreement set forth in the attached
Schedule I (collectively, the "SUBJECT RIGHTS").
2. Buyer acknowledges that it has reviewed and, in connection with any exercise
of the Subject Rights, agrees to be bound by and comply with, all of the
provisions of the Agreement set forth in Schedule I as well as the provisions of
the Agreement set forth in Schedule II, including, without limitation, the
DISCLAIMER AND RELEASE and EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES in
Article 12 of Part 2 of Exhibit C to the AGTA and the insurance provisions in
Article 11 of the AGTA (collectively, the "DISCLOSED PROVISIONS"). | 1179 |
agreement_26.md | 3. Pursuant to the provisions of the Lease Buyer authorizes Lessee to exercise,
to the exclusion of Buyer, all rights and powers of Buyer with respect to the
Subject Rights in respect of the Aircraft. This authorization will continue
until Boeing receives written notice from Buyer to the contrary, addressed to
Vice President - Contracts, Mail Code 21-34, Boeing Commercial Airplanes, P. O.
Box 3707, Seattle, Washington, 98124-2207. Until Boeing receives such notice,
Boeing is entitled to deal exclusively with Lessee as "Customer" with respect to
the Aircraft under the Agreement. With respect to the rights, powers, duties and
obligations of "Customer" under the Agreement, all actions taken by Lessee or
agreements entered into by Lessee during the period prior to Boeing's receipt of
such notice is final and binding on Buyer. Further, any payments made by Boeing
as a result of claims made by Lessee prior to receipt of such notice are to be
made to the credit of Lessee.
4. Lessee accepts the authorization set forth in paragraph 3 above, acknowledges
that it has reviewed, and agrees to be bound by and to comply with, all of the
Disclosed Provisions, including those relating to any exclusion or limitation of
liabilities or warranties.
5. RBS and Seller will remain responsible for any payments due Boeing as a
result of obligations relating to the Aircraft incurred by Seller or Buyer, as
the case may be, to Boeing prior to the effective date hereof.
6. Each of Seller, Buyer and Lessee further agrees, upon the written request of
Boeing, promptly to execute and deliver such further assurances and documents
and take such further action as Boeing reasonably requests in order to obtain
the full benefits of such party's agreements herein. | 1180 |
agreement_26.md | 7. It is expressly agreed and understood that all representations, warranties
and undertakings of Buyer hereunder shall be binding upon Buyer only in its
capacity as trustee under the Trust Agreement, and neither the institution
acting as Buyer nor RBS shall be liable in its individual capacity for any
breach thereof except in the case of the institution acting as Buyer for breach
of its own covenants, representations and warranties contained herein, to the
extent covenanted or made in its individual capacity.
We request that Boeing acknowledge receipt hereof and confirm the transfer of
rights set forth above by signing the acknowledgment and forwarding one copy
hereof containing its acknowledgment to each of the undersigned.
Very truly yours,
DELTA AIR LINES, INC. (Seller) RBS AEROSPACE LIMITED (Buyer)
By \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ By \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Its \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ Its \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Dated \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ Dated \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ | 1181 |
agreement_26.md | WELLS FARGO BANK NORTHWEST, COMPANIA PANAMENA DE AVIACION,
N.A., not in its individual capacity, S.A. (LESSEE)
but solely as trustee (Trustee) for the
benefit of RBS Aerospace Limited under
the Trust Agreement dated as of December
23, 2004 between itself and RBS
Aerospace Limited
By \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ By \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Its \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ Its \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Dated \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ Dated \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Receipt of the above letter is acknowledged and transfer of rights under the
Purchase Agreement with respect to the Aircraft is confirmed, effective as of
this date.
THE BOEING COMPANY
By \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Its \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Dated \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ | 1182 |
agreement_26.md | Aircraft Manufacturer's Serial Number \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ | 1183 |
agreement_27.md | XML
50
R20.htm
IDEA: XBRL DOCUMENT
/\* Do Not Remove This Comment \*/
function toggleNextSibling (e) {
if (e.nextSibling.style.display=='none') {
e.nextSibling.style.display='block';
} else { e.nextSibling.style.display='none'; }
}
v3.6.0.2
| **Leases and Capacity Purchase Agreements** | 12 Months Ended |
| --- | --- |
| Dec. 31, 2016 |
| [Leases and Capacity Purchase Agreements](javascript:void(0);) |
**NOTE 13 - LEASES AND
CAPACITY PURCHASE AGREEMENTS**
United leases aircraft,
airport passenger terminal space, aircraft hangars and related
maintenance facilities, cargo terminals, other airport facilities,
other commercial real estate, office and computer equipment and
vehicles.
At December 31, 2016,
United’s scheduled future minimum lease payments under
operating leases having initial or remaining noncancelable lease
terms of more than one year, aircraft leases, including aircraft
rent under CPAs and capital leases (substantially all of which are
for aircraft) were as follows (in millions): | 1184 |
agreement_27.md | | | | | | | | | | | | | | |
| --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- |
| | | | | | | | | | | | | |
| | | **Capital Leases** | | | **Facility and Other
Operating Leases** | | | **Aircraft Operating
Leases** | |
| 2017 | | $ | 183 | | | $ | 1,256 | | | $ | 1,271 | |
| 2018 | | | 170 | | | | 1,106 | | | | 1,074 | |
| 2019 | | | 105 | | | | 991 | | | | 894 | |
| 2020 | | | 85 | | | | 1,104 | | | | 669 | |
| 2021 | | | 84 | | | | 888 | | | | 551 | |
| After
2021 | | | 915 | | | | 6,702 | | | | 2,049 | | | 1185 |
agreement_27.md | | | | | | | | | | | | | | |
| Minimum lease
payments | | $ | 1,542 | | | $ | 12,047 | | | $ | 6,508 | |
| | | | | | | | | | | | | |
| Imputed interest | | | (604) | | | | | | | | | |
| | | | | | | | | | | | | |
| Present value of minimum
lease payments | | | 938 | | | | | | | | | |
| Current portion | | | (116) | | | | | | | | | |
| | | | | | | | | | | | | |
| Long-term obligations under
capital leases | | $ | 822 | | | | | | | | | |
| | | | | | | | | | | | | | | 1186 |
agreement_27.md | As of December 31,
2016, United’s aircraft capital lease minimum payments relate
to leases of 38 mainline and 29 regional aircraft as well as to
leases of nonaircraft assets. Imputed interest rate ranges are 3.5%
to 20.8%.
Aircraft operating leases
have initial terms of five to 26 years, with expiration dates
ranging from 2017 through 2028. Under the terms of most leases,
United has the right to purchase the aircraft at the end of the
lease term, in some cases at fair market value, and in others, at
fair market value or a percentage of cost. United has facility
operating leases that extend to 2041.
During 2015, the Company
reached an agreement with AerCap Holdings N.V., a major aircraft
leasing company, to lease used Airbus S.A.S (“Airbus”)
A319s. Five such aircraft are expected to be delivered in 2017. In
addition, up to 14 more aircraft may be delivered over the next
four years subject to certain conditions.
United is the lessee of
real property under long-term operating leases at a number of
airports where we are also the guarantor of approximately
$1.4 billion of underlying debt and interest thereon as of
December 31, 2016. These leases are typically with
municipalities or other governmental entities, which are excluded
from the consolidation requirements concerning a variable interest
entity (“VIE”). To the extent United’s
leases and related guarantees are with a separate legal entity
other than a governmental entity, United is not the primary
beneficiary because the lease terms are consistent with market
terms at the inception of the lease and the lease does not include
a residual value guarantee, fixed-price purchase option, or similar
feature.
In 2016, United signed a | 1187 |
agreement_27.md | a residual value guarantee, fixed-price purchase option, or similar
feature.
In 2016, United signed a
seven year lease extension through 2024 with the Metropolitan
Washington Airports Authority to continue its use of terminals at
Washington Dulles International Airport.
United’s nonaircraft
rent expense was approximately $1.2 billion, $1.3 billion
and $1.4 billion for the years ended December 31, 2016,
2015 and 2014, respectively.
In addition to nonaircraft
rent and aircraft rent, which is separately presented in the
consolidated statements of operations, United had aircraft rent
related to regional aircraft operating leases, which is included as
part of Regional capacity purchase expense in United’s
consolidated statement of operations, of $439 million,
$461 million and $442 million for the years ended
December 31, 2016, 2015 and 2014, respectively. | 1188 |
agreement_27.md | In connection with UAL
Corporation’s and United Air Lines, Inc.’s fresh-start
reporting requirements upon their exit from Chapter 11 bankruptcy
protection in 2006 and the Company’s acquisition accounting
adjustments related to the Company’s merger transaction in
2010, lease valuation adjustments for operating leases were
initially recorded in the consolidated balance sheet, representing
the net present value of the differences between contractual lease
rates and the fair market lease rates for similar leased assets at
the time. An asset (liability) results when the contractual lease
rates are more (less) favorable than market lease terms at the
valuation date. The lease valuation adjustment is amortized on a
straight-line basis as an increase (decrease) to rent expense over
the individual applicable remaining lease terms, resulting in
recognition of rent expense as if United had entered into the
leases at market rates. The related remaining lease terms,
primarily related to aircraft which make up the majority of the
fair value lease adjustment balance, are one to eight years
for United. The lease valuation adjustments are classified within
other noncurrent liabilities and the net accretion amounts are
$82 million, $107 million and $160 million for the
years ended December 31, 2016, 2015 and 2014,
respectively.
**Regional
CPAs**
United has CPAs with
certain regional carriers. We purchase all of the capacity from the
flights covered by the CPA at a negotiated price. We pay the
regional carrier a predetermined rate, subject to annual inflation
adjustments, primarily for block hours flown (the hours from gate
departure to gate arrival) and other operating factors and
reimburse the regional carrier for various pass-through expenses
related to the flights. Under the CPAs, we are responsible for the
cost of providing fuel for all flights and for paying aircraft rent | 1189 |
agreement_27.md | related to the flights. Under the CPAs, we are responsible for the
cost of providing fuel for all flights and for paying aircraft rent
for all of the aircraft covered by the CPAs. Generally, the
CPAs contain incentive bonus and rebate provisions based upon each
regional carrier’s operational performance. United’s
CPAs are for 494 regional aircraft, and the CPAs have terms
expiring through 2029. Aircraft operated under CPAs include
aircraft leased directly from the regional carriers and those owned
by United or leased from third-party lessors and operated by the
regional carriers. See Part I, Item 2, “Properties” of
this report for additional information.
In 2016 and 2015, Republic
Airline Inc. (“Republic”), a wholly-owned subsidiary of
Republic Airways Holdings (“Republic Airways”),
purchased and took delivery of 16 new 76-seat Embraer S.A.
(“Embraer”) E175 aircraft, and placed these aircraft
into service under the United Express brand. Subsequent to the
Chapter 11 bankruptcy filing by Republic Airways and certain of its
subsidiaries in the first quarter of 2016, United entered into
amendments to its CPA with Republic in 2016 for Republic to operate
a total of 28 Embraer E175 aircraft, 16 of which were delivered as
previously described and 12 of which remain to be delivered in
2017. In connection with the amended CPA, United will own the 12
remaining Embraer E175 aircraft.
In 2016, United agreed to
purchase 12 new Embraer E175 aircraft that were previously expected
to be purchased by one of its United Express operators, and in the
first quarter of 2017, United entered into a CPA amendment with
Mesa Air Group, Inc. (“Mesa Air Group”) and Mesa | 1190 |
agreement_27.md | first quarter of 2017, United entered into a CPA amendment with
Mesa Air Group, Inc. (“Mesa Air Group”) and Mesa
Airlines, Inc. (“Mesa”), a wholly-owned subsidiary of
Mesa Air Group, for Mesa to operate these 12 additional Embraer
E175 aircraft under the United Express brand. As of
December 31, 2016, all 12 of these aircraft are expected to be
delivered in 2017.
In 2015, United entered
into amendments to the CPA with SkyWest Airlines, Inc.
(“SkyWest”), a wholly-owned subsidiary of SkyWest,
Inc., to operate an additional 25 new 76-seat Embraer E175 aircraft under
the United Express brand. SkyWest purchased all of these
76-seat aircraft directly
from the manufacturer with seven deliveries remaining in
2017.
In 2015, United entered
into a new CPA with Champlain Enterprises, LLC d/b/a CommutAir
(“CommutAir”), pursuant to which CommutAir will operate
40 used Embraer ERJ145 aircraft under the United Express brand that
are currently being operated by a different United Express regional
carrier, with transfers that are continuing through 2018. As of
December 31, 2016, 28 aircraft are still pending
transfer.
Our future commitments
under our CPAs are dependent on numerous variables, and are
therefore difficult to predict. The most important of these
variables is the number of scheduled block hours. Although we
are not required to purchase a minimum number of block hours under
certain of our CPAs, we have set forth below estimates of our
future payments under the CPAs based on our
assumptions. United’s estimates of its future payments
under all of the CPAs do not include the portion of the underlying | 1191 |
agreement_27.md | assumptions. United’s estimates of its future payments
under all of the CPAs do not include the portion of the underlying
obligation for any aircraft leased to a regional carrier or deemed
to be leased from other regional carriers and facility rent that
are disclosed as part of aircraft and nonaircraft operating
leases. For purposes of calculating these estimates, we have
assumed (1) the number of block hours flown is based on our
anticipated level of flight activity or at any contractual minimum
utilization levels if applicable, whichever is higher,
(2) that we will reduce the fleet as rapidly as contractually
allowed under each CPA, (3) that aircraft utilization, stage
length and load factors will remain constant, (4) that each
carrier’s operational performance will remain at historic
levels and (5) an annual projected inflation rate. These
amounts exclude variable pass-through costs such as fuel and
landing fees, among others. Based on these assumptions as of
December 31, 2016, our future payments through the end of the
terms of our CPAs are presented in the table below (in
billions): | 1192 |
agreement_27.md | | | | | | |
| --- | --- | --- | --- | --- |
| | | | | |
| 2017 | | $ | 1.9 | |
| 2018 | | | 1.9 | |
| 2019 | | | 1.3 | |
| 2020 | | | 1.0 | |
| 2021 | | | 1.0 | |
| After 2021 | | | 4.3 | |
| | | | | |
| | | $ | 11.4 | |
| | | | | |
The actual amounts we pay
to our regional operators under CPAs could differ materially from
these estimates. For example, a 10% increase or decrease in
scheduled block hours for all of United’s regional operators
(whether as a result of changes in average daily utilization or
otherwise) in 2017 would result in a corresponding change in annual
cash obligations under the CPAs of approximately
$147 million.
| | 1193 |
agreement_27.md | | |
| --- |
| [X](javascript:void(0);) |
|
[- Definition](javascript:void(0);)The entire disclosure for lessee entity's leasing arrangements including, but not limited to, all of the following: (a.) The basis on which contingent rental payments are determined, (b.) The existence and terms of renewal or purchase options and escalation clauses, (c.) Restrictions imposed by lease agreements, such as those concerning dividends, additional debt, and further leasing. | 1194 |
agreement_27.md | [+ References](javascript:void(0);)Reference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher FASB -Name Accounting Standards Codification -Topic 840 -SubTopic 30 -Section 50 -Paragraph 1 -URI http://asc.fasb.org/extlink&oid=6455398&loc=d3e45280-112737Reference 2: http://www.xbrl.org/2003/role/presentationRef -Publisher FASB -Name Accounting Standards Codification -Topic 840 -SubTopic 10 -Section 50 -Paragraph 2 -URI http://asc.fasb.org/extlink&oid=6452660&loc=d3e36991-112694Reference 3: http://www.xbrl.org/2003/role/presentationRef -Publisher FASB -Name Accounting Standards Codification -Topic 840 -SubTopic 20 -Section 50 -Paragraph 1 -URI http://asc.fasb.org/extlink&oid=6453985&loc=d3e41499-112717Reference 4: http://www.xbrl.org/2003/role/presentationRef -Publisher FASB -Name Accounting Standards Codification -Topic 840 -SubTopic 10 -Section 55 -Paragraph 40 -Subparagraph (Note 1,3) -URI http://asc.fasb.org/extlink&oid=6584154&loc=d3e38371-112697Reference 5: http://www.xbrl.org/2003/role/presentationRef | 1195 |
agreement_27.md | 5: http://www.xbrl.org/2003/role/presentationRef -Publisher FASB -Name Accounting Standards Codification -Topic 460 -SubTopic 10 -Section 50 -Paragraph 4 -URI http://asc.fasb.org/extlink&oid=6851643&loc=d3e12069-110248Reference 6: http://www.xbrl.org/2003/role/presentationRef -Publisher FASB -Name Accounting Standards Codification -Topic 840 -SubTopic 20 -Section 50 -Paragraph 2 -URI http://asc.fasb.org/extlink&oid=6453985&loc=d3e41502-112717 | 1196 |
agreement_27.md | [+ Details](javascript:void(0);) | 1197 |
agreement_27.md | | | |
| --- | --- |
| **Name:** | us-gaap\_LeasesOfLesseeDisclosureTextBlock |
| **Namespace Prefix:** | us-gaap\_ |
| **Data Type:** | nonnum:textBlockItemType |
| **Balance Type:** | na |
| **Period Type:** | duration |
| | 1198 |
agreement_28.md | EX-10.18.1
2
d633340dex10181.htm
EX-10.18.1
EX-10.18.1
**Exhibit 10.18.1**
**AMENDMENT NO. 1 TO**
**NON-EXCLUSIVE AIRCRAFT LEASE AGREEMENT**
This Amendment No. 1 to the Lease Agreement (the “Amendment”) is made and entered into this February 18, 2014 between Falstaff Partners,
LLC (“Lessor”) and Carlyle Investment Management L.L.C. (“Lessee”) and relates to the Non-Exclusive Aircraft Lease Agreement (the “Lease Agreement”) entered into by and between Lessor and Lessee on December 31,
2012.
**WHEREAS**, Lessee and Lessor have entered into the Lease Agreement to provide for the lease of one (1) 2012 Gulfstream G-650 aircraft
bearing U.S. registration number N524EA, and manufacturer’s serial number 6012 (as further defined in the Lease Agreement, the “Aircraft”) by Lessor to Lessee on the terms and conditions provided for therein; and
**WHEREAS**, Lessee and Lessor agree to make certain amendments to the Lease Agreement;
**NOW, THEREFORE**, in consideration of and subject to the mutual covenants, terms and conditions contained in this Amendment and for good and valuable
consideration, which is hereby acknowledged, Lessee and Lessor agree to the following:
1. Definitions. Capitalized terms not defined herein shall
have the meanings ascribed to such terms in the Lease Agreement.
2. Amendments.
(a) Rent. Section 3.3 is hereby deleted in its entirety and replaced with the following provision: | 1199 |