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agreement_5.md | “Permitted Lien” shall mean (i) any Lien which is created by or results from debts or
liabilities or actions of Lessor or its Affiliates and (ii) any Lien (other than a Lessor Lien) which Lessee is permitted under the Lease to allow to subsist (including rights conferred on Lessee or any third parties by the Lease) or which is
otherwise attributable to or for which Lessee is responsible under the Lease.
“Prior Party” shall mean a prior lessor (other than Assignor) under the Lease, if applicable.
Article 2. Assignment and Assumption. | 2100 |
agreement_5.md | 2.1 Assignor for $10 and for other good and valuable consideration, receipt of which is hereby acknowledged, does hereby assign, transfer, sell and convey
unto Assignee, without recourse or, except as provided below in this Section 2.1, representation or warranty, all of Assignor’s right, title and interest accruing on or after the Effective Time hereof in, to and under the Lease, free and clear
of Liens other than Permitted Liens, to have and hold the said Lease unto Assignee, its successors and assigns, to and for its and their use forever; provided, however, that Assignor retains and does not assign to Assignee any rights
or benefits accrued or arising pursuant to the Lease in respect of the period prior to the Effective Time hereof, including, without limitation, Rent paid in advance prior to the date hereof and which is allocable to the period prior to the
Effective Time, and Assignor retains and does not assign to Assignee hereby Assignor’s (or if applicable, a Prior Party’s) rights under Sections 5.6, 5.7, 5.9, 5.10, 5.12, 9 (as an additional insured in their capacity as an Indemnitee for
liability purposes only), 10 or 14.3 of the CTA or under Part IV of Schedule B to the Aircraft Lease Agreement as if Assignor and such Prior Parties continued to be named as a Tax Indemnitee or Indemnitee or Special Tax Indemnitee, as the case may
be, thereunder in the capacity as “Lessor” (and/or Owner, Financing Parties’ Representative and Financing Party, as the case may be) for the period prior to the Effective Time and in the capacity as a Prior Party for the period after | 2101 |
agreement_5.md | the Effective Time (collectively, the “Retained Rights”). In furtherance of the foregoing, (i) Assignor shall pay to Assignee on the date of the Effective Time an amount equal to all Rent paid in advance and allocable to the period
on or after the date of the Effective Time in accordance with the terms and conditions of the Purchase Agreement and (ii) from the Effective Time, Assignee shall be entitled to all rights, remedies and benefits of Lessor provided for under the
Lease, including, without limitation, the right to make all inspections and determinations and give all requests thereunder, the right to receive all payments and other performance by Lessee thereunder and the right to exercise all rights and
remedies of Lessor with respect to Lessee or the Aircraft thereunder other than in respect of Retained Rights. | 2102 |
agreement_5.md | 2.2 Assignee hereby assumes all of the duties, liabilities, and obligations of Lessor under the Lease arising or accruing on or after the Effective Time,
and agrees that it shall be bound by all the terms of, and shall undertake all of the obligations of Lessor contained in, the Lease, arising on or after the Effective Time hereof; provided, however, that Assignee does not assume, and Assignor shall
be and shall remain obligated to Lessee for, all duties, liabilities and obligations of Lessor under the Lease arising or accruing prior to the Effective Time or related to any of the Retained Rights (the “Retained Obligations”).
For avoidance of doubt, Assignee hereby confirms that, from the Effective Time, it is assuming all the obligations of Lessor under
13 - 2 | 2103 |
agreement_5.md | the Lease (other than the Retained Obligations) including the obligations, if any, of Lessor under Sections 5.11, 7.1 and
7.2 of the CTA. Assignee hereby agrees that any consent, approval, election, waiver or other similar action made or taken by, or binding upon, Assignor or a Prior Party with respect to the Aircraft or otherwise pursuant to the Lease, which in each
such case is evidenced by a writing, shall be binding on Assignee.
2.3 Assignee and Assignor hereby covenant and agree to execute and to deliver to each other and to Lessee from time to time such other documents, instruments and agreements as any of them reasonably may request in order to further evidence
the assignment, assumption and substitution effected hereby or otherwise to carry out the purposes and intent of this Agreement. Assignee agrees that, in all matters relating to any Retained Rights, Assignee shall not amend the Lease or otherwise
act in derogation of any Retained Rights.
2.4 In furtherance
of the foregoing, Assignor hereby agrees to [pay to Assignee an amount equal to the Deposit] [transfer to Assignee the Letter of Credit] [and pay an amount equal to Lessor’s maximum potential Maintenance Contribution liability under Section 7.2
of the CTA as of the Effective Time]. [Assignor and Assignee shall execute and deliver a receipt for such payments, which receipt shall be acknowledged by Lessee pursuant to which acknowledgment Lessee shall agree that, upon Assignee’s receipt
of such payments, Assignor shall not have any further obligations under the Lease relating to the Deposit, Supplemental Rent or Maintenance Contributions or amounts payable in respect thereof and Assignee’s obligations in respect thereof as of
the date hereof shall be limited to the amounts set forth in such receipt.] | 2104 |
agreement_5.md | Article 3. Release.
3.1 For the avoidance of
doubt, pursuant to Section 14.2 of the CTA, Lessee shall, subject to Section 14.3 of the CTA, be bound by the foregoing assignment and assumption, including, without limitation, Assignor’s reservation of rights and benefits provided for above,
and Assignor (and all other Prior Parties) continuing as a “Tax Indemnitee” and an “Indemnitee” and a “Special Tax Indemnitee”, as the case may be, under and for purposes of Sections 5.6, 5.7, 5.9, 5.10, 5.12, 9 (as an
additional insured in their capacity as an Indemnitee for liability purposes only), 10 and 14.2 of the CTA and Part IV of Schedule B of the Aircraft Lease Agreement as provided above. Except as provided above with respect to Retained Rights and
Retained Obligations, on and as of the Effective Time, pursuant to Section 14.2 of the Lease, Lessee shall be deemed to have agreed that Assignor is hereby released and discharged from each and every obligation, liability (express or implied) or
duty under or pursuant to the Lease (included under Sections 5.11, 7.1 and 7.2 of the CTA) arising or accruing on or after the Effective Time hereof and, for such purposes, Assignee shall be substituted in lieu of Assignor as the “Lessor”
under the Lease. | 2105 |
agreement_5.md | 3.2 Except as provided above with respect to
Retained Rights and Retained Obligations and as provided in Section 3.1 above, on and as of the Effective Time, Assignor hereby agrees that Lessee is hereby released and discharged from each and every obligation, liability (express or implied) or
duty under or pursuant to the Lease arising or accruing on or after the Effective Time hereof.
13 - 3 | 2106 |
agreement_5.md | Article 4. Assignee’s Representations and Warranties. Assignee represents and warrants to Assignor and Lessee
that:
4.1 [Assignee is a “citizen of the United
States” within the meaning of the Federal Aviation Act of 1958, as amended, and as recodifed in Subtitle VII of Title 49 of the United States Code, and the regulations thereunder (including with respect to voting trust or other voting rights
arrangements).]
4.2 Assignee is a [corporation][limited
liability company][national banking association] organized and validly existing in good standing under the laws of [ ] and has the
power to own its assets and to carry on its business as presently conducted and to enter into and perform this Agreement.
4.3 This Agreement has been duly authorized all necessary corporate action on
the part of Assignee and neither the execution and delivery hereof nor the consummation of the transactions contemplated hereby nor compliance by Assignee with any of the terms and provisions hereof does or will contravene any law applicable to
Assignee, conflict with the constitutional documents of Assignee, or result in any breach of, or constitute any default under, or result in the creation of any lien, charge or encumbrance upon any property of Assignee under, any material credit
agreement or instruments or other agreement or instruments to which Assignee is a party or by which Assignee or its properties or assets are bound.
4.4 Assignee has received every consent, approval or authorization of, and has given every notice to, each Government Entity having jurisdiction with
respect to the execution, delivery or performance of this Agreement by Assignee. | 2107 |
agreement_5.md | 4.5 This Agreement has been duly executed and delivered by Assignee and constitutes a legal, valid and binding obligation of Assignee, enforceable against Assignee in accordance with its terms, except as such
enforceability may be limited by bankruptcy, reorganization, insolvency, moratorium or other similar laws affecting the enforcement of the rights of creditors generally and by general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
4.6
[Assignee has a tangible net worth (determined in accordance with GAAP) of at least Fifteen Million Dollars ($15,000,000)][or][Assignee’s debt obligations have an investment grade rating of
[ ] according to [Moody’s Investors Services, Inc./Standard & Poor’s Corporation.] [representation to be made in the alternative; or made with respect to a
guarantor meeting either such standard; debt rating representation would confirm satisfaction of Section 14.3(c)(x)(ii) of the CTA]
4.7 [Assignee is not an airline or an Affiliate of an airline.]
Article 5. Assignor’s Representations and Warranties. Assignor represents and warrants to Assignee and Lessee that:
13 - 4 | 2108 |
agreement_5.md | 5.1 Assignor is a [corporation][limited liability company][national banking association] organized and
validly existing in good standing under the laws of [ ] and has the power to own its assets
and to carry on its business as presently conducted and to enter into and perform this Agreement.
5.2 This Agreement has been duly authorized pursuant to all necessary corporate action on the part of Assignor and neither the execution and delivery
hereof nor the consummation of the transactions contemplated hereby nor compliance by Assignor with any of the terms and provisions hereof does or will contravene any law applicable to Assignor, conflict with the constitutional documents of
Assignor, or result in any breach of, or constitute any default under, or result in the creation of any lien, charge or encumbrance upon any property of Assignor under, any material credit agreement or instruments or other agreement or instruments
to which Assignor is a party or by which Assignor or its properties or assets are bound.
5.3 Assignor has received every consent, approval or authorization of, and has given every notice to, each Government Entity having jurisdiction with respect to the execution, delivery or performance of this Agreement
by Assignor.
5.4 This Agreement has been duly executed and
delivered by Assignor and constitutes a legal, valid and binding obligation of Assignor, enforceable against Assignor in accordance with its terms, except as such enforceability may be limited by bankruptcy, reorganization, insolvency, moratorium or
other similar laws affecting the enforcement of the rights of creditors generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
Article 6. Miscellaneous. | 2109 |
agreement_5.md | Article 6. Miscellaneous.
6.1 This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their successors and assigns. Assignor and Assignee agree that Lessee shall be a third party beneficiary of this Agreement.
6.2 This Agreement has been executed and delivered in the State of New York, and this Agreement, including all matters of construction, validity and
performance, shall in all respects be governed by, and construed in accordance with, the laws of the State of New York applicable to contracts made in such State and to be performed entirely within such State.
6.3 This Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument.
6.4 Subject to satisfaction of the conditions precedent set forth in Section 14.3 of the CTA, this Agreement shall become
effective at the time of [execution by Assignor and Assignee] [filing of this Agreement for recordation with the FAA] (the “Effective Time”). Assignor and Assignee agree to notify Lessee of the Effective Time promptly after the
occurrence thereof pursuant to a Notice of Assignment substantially in the form of Annex 2 hereto[, and to notify the applicable broker and/or insurers of the substance of Section 2.1 of the Assignment Notice promptly after the Effective Time].
13 - 5 | 2110 |
agreement_5.md | 6.5 [Assignor/Assignee] shall reimburse Lessee for all reasonable out-of-pocket fees, costs, and expenses
incurred by Lessee, as and to the extent provided in Section 14.3(b) of the CTA.
IN WITNESS WHEREOF, the parties hereto have each caused this Assignment, Assumption and Release Agreement to be duly executed and delivered by their respective officers thereunto duly authorized as of the day and year
first above written.
| | | | | |
| --- | --- | --- | --- | --- |
| ASSIGNOR: | | | |
---
|
| | | | | |
| | | | | | | By: | |
---
|
| | | | | | | Name: | | |
| | | | | | | Title: | | |
| | | |
| ASSIGNEE: | | | |
---
|
| | | | | |
| | | | | | | By: | |
---
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| | | | | | | Name: | | |
| | | | | | | Title: | | |
13 - 6
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**Annex I**
**to Assignment Agreement (MSN )**
Description of Aircraft and Lease
Aircraft:
Lease:
| | | | | |
| --- | --- | --- | --- | --- |
| **Instrument**
---
| | **Date of Instrument** | 2111 |
agreement_5.md | | | **Date of Instrument**
---
| | **Recording Date and Number**
---
|
| Aircraft Lease Agreement | | | | |
| | | |
| Common Terms Agreement | | | | |
Annex I-1 | 2112 |
agreement_5.md | **Annex II**
**To Assignment Agreement (MSN )**
[Lessee
Address]
NOTICE OF ASSIGNMENT RE: MSN
Ladies and Gentlemen:
Please find attached hereto a true and correct and fully executed Assignment, Assumption and Release Agreement (MSN
) between the Assignor and Assignee named therein (the “Assignment Agreement”) with respect to the lease of Aircraft bearing manufacturer’s serial number
. Terms used herein and not otherwise defined have the meanings given to them in the Assignment Agreement.
| | |
| --- | --- |
| 1. | Notice. Assignor and Assignee hereby notify Lessee of the assignment, assumption and release with respect to the Lease provided for in the attached Assignment Agreement,
which assignment, assumption and release are in full force and effect. The “Effective Time” as defined therein occurred at
. |
| | |
| --- | --- |
| 2. | Lease Amendments/Supplements. The following amendments and/or supplements to the Lease are hereby made effective automatically on and for the period from and after the
Effective Time. |
2.1 The definitions of the
following terms in Section 1.1 of the ALA are hereby amended and/or supplemented as set forth below:
| | | |
| --- | --- | --- |
| | (a) | The term “Financing Documents” is amended to the following new definition: |
| | | |
| --- | --- | --- |
| | | [
] | | 2113 |
agreement_5.md | | | | |
| --- | --- | --- |
| | (b) | The term “Financing Parties” is amended to the following new definition: |
| | | |
| --- | --- | --- |
| | | [
] |
| | | |
| --- | --- | --- |
| | (c) | The term “Financing Parties’ Representative” is amended to the following new definition: |
| | | |
| --- | --- | --- |
| | | [
] |
| | | |
| --- | --- | --- |
| | (d) | The term “Indemnitees” includes Assignee as Lessor, [ ] as Owner[,
[ ] as Financing Parties’ Representative and [ ] as Financing Parties]. All Indemnitees prior to the
Effective Time remain as Indemnitees. |
| | | |
| --- | --- | --- |
| | (e) | The term “Lessor” in the first sentence of the first paragraph of the ALA is hereby amended to refer to Assignee. |
Annex II - 1 | 2114 |
agreement_5.md | | | | |
| --- | --- | --- |
| | (f) | Section 3.4 of the ALA is hereby deleted in its entirety and replaced with the following: |
| | | |
| --- | --- | --- |
| | | “For the purposes of Section 5.5 of the Common Terms Agreement, Lessor’s bank account and wire transfer particulars, to which all payments by Lessee to Lessor shall be
made, are at the date hereof: .” |
| | | |
| --- | --- | --- |
| | 2.2 | Section 6 of the ALA is hereby amended by deleting Lessor’s contact information appearing therein and replacing it in its entirety with the following: |
| | | |
| --- | --- | --- |
| | | Lessor: |
| | | |
| --- | --- | --- |
| | | Address: |
| | | |
| --- | --- | --- |
| | | Attn: |
| | | |
| --- | --- | --- |
| | | Facsimile: |
| | | |
| --- | --- | --- |
| | | Telephone | | 2115 |
agreement_5.md | | | | |
| --- | --- | --- |
| | | Telephone |
| | |
| --- | --- |
| 3. | Lessee’s Representation of Warranties. Upon receipt hereof, and in consideration of Assignor’s and Assignee’s representations, warranties and covenants
contained in the Assignment Agreement, Lessee shall be deemed to represent and warrant to Assignor of Assignee that: |
| | | |
| --- | --- | --- |
| | 3.1 | Lessee is a corporation organized and validly existing in good standing under the laws of [ ] and has
the corporate power to own its assets and to carry on its business as presently conducted and to enter into and perform the Lease. |
| | | |
| --- | --- | --- |
| | 3.2 | Except as notified in writing by Lessee to Assignee within 10 days from the date hereof, the Lease is in full force and effect, and a true, complete and current description of the
Lease is attached hereto as Annex B (and is accurately described in the Assignment Agreement), which contains all written amendments, waivers or other modifications thereto as of the date hereof, and there have been no oral amendments, waivers or
other modifications of any provisions of the Lease, in each case which continue in effect on or after the Effective Time. | | 2116 |
agreement_5.md | | | | |
| --- | --- | --- |
| | 3.3 | Except as notified in writing by Lessee to Assignee within 10 days from the date hereof, Lessee has no disputes with Assignor, and, to the knowledge of Lessee, Lessee has no claims
against Assignor, under or in respect of the Lease. |
| | | |
| --- | --- | --- |
| | 3.4 | Except as notified in writing by Lessee to Assignee within 10 days from the date hereof, no prior notice of assignment of the Lease has been received by Lessee [other than
]. |
| | | |
| --- | --- | --- |
| | 3.4 | Except as notified in writing by Lessee to Assignee within 10 days from the date hereof, neither the Aircraft nor any Engine is subject to a requisition by any Government Entity,
nor to any sublease, interchange or charter. |
Annex II - 2 | 2117 |
agreement_5.md | | | | |
| --- | --- | --- |
| | 3.5 | Except as notified in writing by Lessee to Assignee within 10 days from the date hereof, no unrepaired damage with, to the knowledge of Lessee, a cost of repair or replacement in
excess of the Damage Notification Threshold, and no Event of Loss or incipient Event of Loss, has occurred with respect to the Aircraft or any Engine. |
| | | |
| --- | --- | --- |
| | 3.6 | Except as notified in writing by Lessee to Assignee within 10 days from the date hereof, no Default with respect to the payment of Rent and, to the knowledge of Lessee, no other
Default has occurred and is continuing. |
| | | |
| --- | --- | --- |
| | 3.7 | Lessee has made no prepayments of Rent. |
| | | |
| --- | --- | --- |
| | 3.8 | Except as notified in writing by Lessee to Assignee within 10 days from the date hereof, as of the date hereof, the Agreed Value, [and] monthly Rent [, the Supplemental Rent
amounts,] [the Deposit] [the Letter of Credit] [, and the amount of Lessor’s maximum Maintenance Contribution liability] are as set forth on Annex A hereto. | | 2118 |
agreement_5.md | | | |
| --- | --- |
| 4. | Plates. Upon receipt hereof, Lessee shall be deemed to have agreed that Lessee will, at Assignee’s expense, procure that replacement fireproof plates are affixed to the
Aircraft in compliance with Section 8.7(d) of the CTA at the next scheduled maintenance check of the Aircraft and Assignee agrees that no Default shall occur under the Lease due to Lessee’s failure to install such replacement fireproof plates
prior to such time. |
| | |
| --- | --- |
| 5. | Further Assurances. Each of the parties hereto agrees from time to time to do and perform such other and further acts and to execute and deliver any and all such instruments
as may be required by law or reasonably requested by any other party hereto to establish, maintain and protect the rights and remedies of the parties hereto and to carry out and effect the intended purpose of the Assignment Agreement; provided that
Lessee shall not be required to perform or do any act or thing or execute or deliver any instrument that would in any material respect increase Lessee’s indemnity or other payment obligations under the Lease or diminish Lessee’s rights
under the Lease (determined as of the Effective Time by applying all applicable Laws in effect as of the Effective Time or enacted prior to the Effective Time and becoming effective thereafter). In particular, Lessee agrees that it will use
reasonable commercial efforts to obtain within 10 days from the date hereof an acknowledgment from the applicable insurance broker or insurer that it received the notice referred to in Section 6.4 of the Assignment Agreement.
|
Annex II - 3 | 2119 |
agreement_5.md | Please acknowledge your receipt of this Notice of Assignment and confirmation of the foregoing terms hereof by executing
a counterpart hereof and returning it to the Assignee.
| | | |
| --- | --- | --- |
| [Assignor] | | [Assignee] |
| | |
| By: | | By: |
| Name: | | Name: |
| Title: | | Title: |
| | |
| Acknowledged and Confirmed: | | |
| [Lessee] | | |
| | |
| By: | | |
| Name: | | |
| Title: | | |
| | |
| Dated:
| | |
Annex II - 4
---
**ANNEX A**
**TO NOTICE OF ASSIGNMENT (MSN )**
Agreed Value: $
Rent:
$
[Supplemental Rent: [amount payable by category]]
Deposit: $
Letter of Credit:
[Maximum Maintenance
Contribution Liability: $ ]
Annex A - 1
---
**ANNEX B**
**TO NOTICE OF ASSIGNMENT (MSN )**
Copy of complete Lease
Annex B - 1 | 2120 |
agreement_5.md | **SCHEDULE 14**
**FORM OF LEASE SUPPLEMENT NO. 1**
LEASE
SUPPLEMENT NO. 1, dated as of , , between
, [a corporation organized
under the laws of ] [, not in its individual capacity, but solely as owner trustee] (“Lessor”), and
,
a corporation organized under the laws of the (“Lessee”).
Lessor and Lessee have previously entered into that certain Aircraft Lease Agreement dated as
of , including the Common Terms Agreement as defined therein (collectively, herein referred to as the
“Agreement” and the defined terms therein being hereinafter used with the same meaning). 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.
The Agreement and this Lease Supplement relate to the Aircraft, Engines and Parts as more precisely described below and in the Certificate of Technical Acceptance. A
counterpart of the Agreement is attached hereto and shall be filed together with this Lease Supplement with the FAA.
In consideration of the premises and other good and sufficient consideration, Lessor and Lessee hereby agree as follows: | 2121 |
agreement_5.md | In consideration of the premises and other good and sufficient consideration, Lessor and Lessee hereby agree as follows:
1. Lessor hereby delivers and leases to Lessee under and pursuant to the Agreement and
Lessee hereby accepts, acknowledges receipt of possession and leases from Lessor under and pursuant to the Agreement, that certain
aircraft, and the
( )
Engines (each of which Engines has 750 or more rated takeoff horsepower
or the equivalent of such horsepower) described in Schedule 1 hereto, together with the Aircraft Documents and Records described in the Agreement (the “Delivered Aircraft”).
2. The Delivery Date of the Delivered Aircraft is the date of this Lease Supplement set forth in the opening paragraph hereof.
3. The Term for the Delivered Aircraft shall commence on the Delivery Date and shall end
on the Expiry Date, with respect to which the Scheduled Expiry Date shall be [insert date].
4. The amount of Rent for the Delivered Aircraft is set forth in Schedule B to the Agreement.
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 Section 8.6(a) of the
Agreement, (ii) the Aircraft is insured as required by the Agreement, (iii) the representations and warranties of Lessee referred to in Section 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
14 - 1 | 2122 |
agreement_5.md | the Delivered Aircraft satisfies all conditions required for Lessee’s acceptance of delivery as set forth in the
Agreement, (v) [insert where applicable: except as set forth in that certain letter agreement dated the date hereof between Lessor and Lessee,] Lessor has satisfied all Lessee Conditions Precedent, and (vi) the execution and delivery of this Lease
Supplement signifies absolute and irrevocable acceptance by Lessee of the Delivered Aircraft for all purposes hereof and of the Agreement.
6. Lessor hereby confirms to Lessee that (i) the representations and warranties of Lessor referred to in Section 2.1 of the Agreement are hereby repeated with effect as
of the date first above written and (ii) Lessor acknowledges that [insert where applicable: except as set forth in that certain letter agreement dated the date hereof between Lessor and Lessee,] Lessee has satisfied all Lessor Conditions Precedent.
7. This Lease Supplement shall be governed by and construed in accordance with
the Laws of the State of New York. This Lease Supplement is hereby deemed executed and delivered pursuant to the Agreement in the State of New York.
8. 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 Lease Supplement; provided, that to the extent, if any, that this Lease Supplement constitutes chattel paper (as such term is defined in the Uniform Commercial Code as in effect in any
applicable jurisdiction), no security interest in this Lease Supplement may be created through the transfer or possession of any counterpart other than the “Original”, which shall be indicated on the signature page thereof. | 2123 |
agreement_5.md | 9. This Lease Supplement supplements and forms a part of the Agreement. The Agreement, as
supplemented hereby, is hereby ratified, approved and confirmed in all respects.
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, |
| | | |
| [INSERT LESSOR’S NAME] | | | | [INSERT LESSEE’S NAME] |
| | | | | |
| By: | | | 2124 |
agreement_5.md | | | | | By: | |
---
|
| Name: | |
---
| | | | Name: | |
---
|
| Title: | |
---
| | | | Title: | |
---
|
14 - 2
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**SCHEDULE 15**
**[INTENTIONALLY OMITTED]**
15-1 | 2125 |
agreement_5.md | **SCHEDULE 16**
**FORM OF LETTER OF CREDIT**
[GE Capital Aviation Services, Limited
Aviation House
Shannon
Co. Clare
Ireland]
[GE Capital Aviation Services, Inc.
201 High Ridge Road
Stamford, CT 06927]
Dated
This Letter of Credit is provided in connection with the lease of that ***[aircraft type]*** aircraft ***[serial no.]*** to
***[lessee******]***. This letter of credit however creates primary obligations on us and is independent from the lease.
On the instructions of ***[lessee]*** and for its account, we hereby establish this irrevocable Letter of Credit to authorize GE Capital Aviation Services, as
manager of the aircraft, to draw on [***appropriate branch/department details/address of issuing bank***] an amount or amounts not exceeding a total of USD ***[amount in figures*** (***amount in words]*** United States
Dollars) upon receipt by us of a signed demand certificate from you in the following format (with the square bracketed sections completed):
“On behalf of [***lessor name***], the undersigned as an authorized signatory or representative of GE Capital Aviation Services hereby draws upon your
irrevocable Letter of Credit dated [***date of this letter of credit***] and instructs you to transfer US$ [***amount in figures]*** (***[amount in words]*** United States Dollars) to [***insert appropriate bank
details****]* immediately.” | 2126 |
agreement_5.md | We will honor drawings under this
Letter of Credit upon our receipt of such a demand certificate (by facsimile to fax number: [***bank fax number***], mail, courier service or by hand) and will make payment to the account specified in the demand certificate, for value no
later than close of business on the next succeeding banking day following our receipt of the demand certificate. If any drawing hereunder does not conform with these terms, we shall promptly notify you of that, state the reason(s) why and hold the
document(s) presented at your disposal (or return them to you if you so request).
Partial drawings are permitted.
This letter of credit expires on
[***initial expiry date***] (“Expiry Date”) but shall be automatically extended, without the need for amendment, for one year from the said Expiry Date and annually thereafter unless at least 60 days prior to the then applicable
Expiry Date we have notified you by registered mail that we will not renew the letter of credit for the following year.
16-1 | 2127 |
agreement_5.md | This Letter of Credit is transferable and constitutes an obligation to make payment against documents.
1Except as provided above, this Letter of Credit is issued subject to the Uniform Customs and
Practice for Documentary Credits (1993 Revision) International Chamber of Commerce Publication No. 500 and is governed by New York law. Unless you otherwise require, any disputes arising out of or in connection with this letter of credit shall be
resolved before the United States District Court for the Southern District of New York and any New York State court sitting in the County of New York, New York, and all related appellate courts.
All bank charges, including, but not by way of limitation, fees or commissions, shall be for
the applicant’s account.
---
| | |
| --- | --- |
| 1 | Alternatively where bank wants to use ISP 98: Except as provided above, this Letter of Credit is issued subject to the International Standby Practices 1998 and is governed by
New York law. Unless you otherwise require, any disputes arising out of or in connection with this letter of credit shall be resolved before the United States District Court for the Southern District of New York and any New York State court sitting
in the County of New York, New York, and all related appellate courts. |
16-2 | 2128 |
agreement_6.md | EX-10.7
10
dex107.htm
FORM OF AIRCRAFT LEASE AGREEMENT
Form of Aircraft Lease Agreement
**EXHIBIT 10.7**
**TO THE EXTENT THAT THIS AIRCRAFT LEASE AGREEMENT CONSTITUTES CHATTEL PAPER (AS DEFINED IN THE UNIFORM COMMERCIAL CODE AS IN EFFECT IN ANY
APPLICABLE JURISDICTION), NO SECURITY INTEREST IN THIS AIRCRAFT LEASE AGREEMENT MAY BE CREATED THROUGH TRANSFER OR POS0SESSION OF ANY COUNTERPART OTHER THAN THE ORIGINAL COUNTERPART, WHICH SHALL BE IDENTIFIED AS THE COUNTERPART DESIGNATED AS THE
ORIGINAL ON THE SIGNATURE PAGE OF THIS AGREEMENT BY LESSOR**
**AIRCRAFT LEASE AGREEMENT**
**Dated as of August
15, 2003**
**between**
**AFS Investments 54 LLC**
**as Lessor**
**and**
**AirTran Airways, Inc.**
**as Lessee**
**in respect of Aircraft: Boeing B737-700, September 2004 Scheduled Delivery Month**
**Serial No:** ***(As set forth in Lease Supplement No. 1)***
**Registration No:** ***(As set forth in Lease Supplement No. 1)***
---
**incorporating the provisions of a**
**COMMON TERMS AGREEMENT**
**Dated August 15, 2003**
**Between Aviation
Financial Services Inc. and AirTran Airways, Inc.**
--- | 2129 |
agreement_6.md | ---
**TO THE EXTENT THAT THIS AIRCRAFT LEASE AGREEMENT CONSTITUTES CHATTEL PAPER (AS DEFINED IN THE UNIFORM COMMERCIAL CODE
AS IN EFFECT IN ANY APPLICABLE JURISDICTION), NO SECURITY INTEREST IN THIS AIRCRAFT LEASE AGREEMENT MAY BE CREATED THROUGH TRANSFER OR POSSESSION OF ANY COUNTERPART OTHER THAN THE ORIGINAL COUNTERPART, WHICH SHALL BE IDENTIFIED AS THE COUNTERPART
DESIGNATED AS THE ORIGINAL ON THE SIGNATURE PAGE OF THIS AGREEMENT BY LESSOR**
**AIRCRAFT LEASE AGREEMENT**
**Dated as of August 15, 2003**
**between**
**AFS Investments 55 LLC**
**as Lessor**
**and**
**AirTran Airways, Inc.**
**as Lessee**
**in respect of Aircraft: Boeing B737-700, October 2004 Scheduled Delivery Month**
**Serial No:** ***(As set forth in Lease Supplement No. 1)***
**Registration No:** ***(As set forth in Lease Supplement No. 1)***
---
**incorporating the provisions of a**
**COMMON TERMS AGREEMENT**
**Dated August 15, 2003**
**Between Aviation
Financial Services Inc. and AirTran Airways, Inc.**
--- | 2130 |
agreement_6.md | ---
**TO THE EXTENT THAT THIS AIRCRAFT LEASE AGREEMENT CONSTITUTES CHATTEL PAPER (AS DEFINED IN THE UNIFORM COMMERCIAL CODE
AS IN EFFECT IN ANY APPLICABLE JURISDICTION), NO SECURITY INTEREST IN THIS AIRCRAFT LEASE AGREEMENT MAY BE CREATED THROUGH TRANSFER OR POSSESSION OF ANY COUNTERPART OTHER THAN THE ORIGINAL COUNTERPART, WHICH SHALL BE IDENTIFIED AS THE COUNTERPART
DESIGNATED AS THE ORIGINAL ON THE SIGNATURE PAGE OF THIS AGREEMENT BY LESSOR**
**AIRCRAFT LEASE AGREEMENT**
**Dated as of August 15, 2003**
**between**
**AFS Investments 56 LLC**
**as Lessor**
**and**
**AirTran Airways, Inc.**
**as Lessee**
**in respect of Aircraft: Boeing B737-700, November 2004 Scheduled Delivery Month**
**Serial No:** ***(As set forth in Lease Supplement No. 1)***
**Registration No:** ***(As set forth in Lease Supplement No. 1)***
---
**incorporating the provisions of a**
**COMMON TERMS AGREEMENT**
**Dated August 15, 2003**
**Between Aviation
Financial Services Inc. and AirTran Airways, Inc.**
--- | 2131 |
agreement_6.md | ---
**TO THE EXTENT THAT THIS AIRCRAFT LEASE AGREEMENT CONSTITUTES CHATTEL PAPER (AS DEFINED IN THE UNIFORM COMMERCIAL CODE
AS IN EFFECT IN ANY APPLICABLE JURISDICTION), NO SECURITY INTEREST IN THIS AIRCRAFT LEASE AGREEMENT MAY BE CREATED THROUGH TRANSFER OR POSSESSION OF ANY COUNTERPART OTHER THAN THE ORIGINAL COUNTERPART, WHICH SHALL BE IDENTIFIED AS THE COUNTERPART
DESIGNATED AS THE ORIGINAL ON THE SIGNATURE PAGE OF THIS AGREEMENT BY LESSOR**
**AIRCRAFT LEASE AGREEMENT**
**Dated as of August 15, 2003**
**between**
**AFS Investments 57 LLC**
**as Lessor**
**and**
**AirTran Airways, Inc.**
**as Lessee**
**in respect of Aircraft: Boeing B737-700, December 2004 Scheduled Delivery Month**
**Serial No:** ***(As set forth in Lease Supplement No. 1)***
**Registration No:** ***(As set forth in Lease Supplement No. 1)***
---
**incorporating the provisions of a**
**COMMON TERMS AGREEMENT**
**Dated August 15, 2003**
**Between Aviation
Financial Services Inc. and AirTran Airways, Inc.**
--- | 2132 |
agreement_6.md | ---
**TO THE EXTENT THAT THIS AIRCRAFT LEASE AGREEMENT CONSTITUTES CHATTEL PAPER (AS DEFINED IN THE UNIFORM COMMERCIAL CODE
AS IN EFFECT IN ANY APPLICABLE JURISDICTION), NO SECURITY INTEREST IN THIS AIRCRAFT LEASE AGREEMENT MAY BE CREATED THROUGH TRANSFER OR POSSESSION OF ANY COUNTERPART OTHER THAN THE ORIGINAL COUNTERPART, WHICH SHALL BE IDENTIFIED AS THE COUNTERPART
DESIGNATED AS THE ORIGINAL ON THE SIGNATURE PAGE OF THIS AGREEMENT BY LESSOR**
**AIRCRAFT LEASE AGREEMENT**
**Dated as of August 15, 2003**
**between**
**AFS Investments 54 LLC**
**as Lessor**
**and**
**AirTran Airways, Inc.**
**as Lessee**
**in respect of Aircraft: Boeing B737-700, January 2005 Scheduled Delivery Month**
**Serial No:** ***(As set forth in Lease Supplement No. 1)***
**Registration No:** ***(As set forth in Lease Supplement No. 1)***
---
**incorporating the provisions of a**
**COMMON TERMS AGREEMENT**
**Dated August 15, 2003**
**Between Aviation
Financial Services Inc. and AirTran Airways, Inc.**
--- | 2133 |
agreement_6.md | ---
**TO THE EXTENT THAT THIS AIRCRAFT LEASE AGREEMENT CONSTITUTES CHATTEL PAPER (AS DEFINED IN THE UNIFORM COMMERCIAL CODE
AS IN EFFECT IN ANY APPLICABLE JURISDICTION), NO SECURITY INTEREST IN THIS AIRCRAFT LEASE AGREEMENT MAY BE CREATED THROUGH TRANSFER OR POSSESSION OF ANY COUNTERPART OTHER THAN THE ORIGINAL COUNTERPART, WHICH SHALL BE IDENTIFIED AS THE COUNTERPART
DESIGNATED AS THE ORIGINAL ON THE SIGNATURE PAGE OF THIS AGREEMENT BY LESSOR**
**AIRCRAFT LEASE AGREEMENT**
**Dated as of August 15, 2003**
**between**
**AFS Investments 55 LLC**
**as Lessor**
**and**
**AirTran Airways, Inc.**
**as Lessee**
**in respect of Aircraft: Boeing B737-700, February 2005 Scheduled Delivery Month**
**Serial No:** ***(As set forth in Lease Supplement No. 1)***
**Registration No:** ***(As set forth in Lease Supplement No. 1)***
---
**incorporating the provisions of a**
**COMMON TERMS AGREEMENT**
**Dated August 15, 2003**
**Between Aviation
Financial Services Inc. and AirTran Airways, Inc.**
--- | 2134 |
agreement_6.md | ---
**TO THE EXTENT THAT THIS AIRCRAFT LEASE AGREEMENT CONSTITUTES CHATTEL PAPER (AS DEFINED IN THE UNIFORM COMMERCIAL CODE
AS IN EFFECT IN ANY APPLICABLE JURISDICTION), NO SECURITY INTEREST IN THIS AIRCRAFT LEASE AGREEMENT MAY BE CREATED THROUGH TRANSFER OR POSSESSION OF ANY COUNTERPART OTHER THAN THE ORIGINAL COUNTERPART, WHICH SHALL BE IDENTIFIED AS THE COUNTERPART
DESIGNATED AS THE ORIGINAL ON THE SIGNATURE PAGE OF THIS AGREEMENT BY LESSOR**
**AIRCRAFT LEASE AGREEMENT**
**Dated as of August 15, 2003**
**between**
**AFS Investments 56 LLC**
**as Lessor**
**and**
**AirTran Airways, Inc.**
**as Lessee**
**in respect of Aircraft: Boeing B737-700, March 2005 Scheduled Delivery Month**
**Serial No:** ***(As set forth in Lease Supplement No. 1)***
**Registration No:** ***(As set forth in Lease Supplement No. 1)***
---
**incorporating the provisions of a**
**COMMON TERMS AGREEMENT**
**Dated August 15, 2003**
**Between Aviation
Financial Services Inc. and AirTran Airways, Inc.**
--- | 2135 |
agreement_6.md | ---
**TO THE EXTENT THAT THIS AIRCRAFT LEASE AGREEMENT CONSTITUTES CHATTEL PAPER (AS DEFINED IN THE UNIFORM COMMERCIAL CODE
AS IN EFFECT IN ANY APPLICABLE JURISDICTION), NO SECURITY INTEREST IN THIS AIRCRAFT LEASE AGREEMENT MAY BE CREATED THROUGH TRANSFER OR POSSESSION OF ANY COUNTERPART OTHER THAN THE ORIGINAL COUNTERPART, WHICH SHALL BE IDENTIFIED AS THE COUNTERPART
DESIGNATED AS THE ORIGINAL ON THE SIGNATURE PAGE OF THIS AGREEMENT BY LESSOR**
**AIRCRAFT LEASE AGREEMENT**
**Dated as of August 15, 2003**
**between**
**AFS Investments 57 LLC**
**as Lessor**
**and**
**AirTran Airways, Inc.**
**as Lessee**
**in respect of Aircraft: Boeing B737-700, April 2005 Scheduled Delivery Month**
**Serial No:** ***(As set forth in Lease Supplement No. 1)***
**Registration No:** ***(As set forth in Lease Supplement No. 1)***
---
**incorporating the provisions of a**
**COMMON TERMS AGREEMENT**
**Dated August 15, 2003**
**Between Aviation
Financial Services Inc. and AirTran Airways, Inc.**
--- | 2136 |
agreement_6.md | ---
**TO THE EXTENT THAT THIS AIRCRAFT LEASE AGREEMENT CONSTITUTES CHATTEL PAPER (AS DEFINED IN THE UNIFORM COMMERCIAL CODE
AS IN EFFECT IN ANY APPLICABLE JURISDICTION), NO SECURITY INTEREST IN THIS AIRCRAFT LEASE AGREEMENT MAY BE CREATED THROUGH TRANSFER OR POSSESSION OF ANY COUNTERPART OTHER THAN THE ORIGINAL COUNTERPART, WHICH SHALL BE IDENTIFIED AS THE COUNTERPART
DESIGNATED AS THE ORIGINAL ON THE SIGNATURE PAGE OF THIS AGREEMENT BY LESSOR**
**AIRCRAFT LEASE AGREEMENT**
**Dated as of August 15, 2003**
**between**
**AFS Investments 54 LLC**
**as Lessor**
**and**
**AirTran Airways, Inc.**
**as Lessee**
**in respect of Aircraft: Boeing B737-700, May 2005 Scheduled Delivery Month**
**Serial No:** ***(As set forth in Lease Supplement No. 1)***
**Registration No:** ***(As set forth in Lease Supplement No. 1)***
---
**incorporating the provisions of a**
**COMMON TERMS AGREEMENT**
**Dated August 15, 2003**
**Between Aviation
Financial Services Inc. and AirTran Airways, Inc.**
--- | 2137 |
agreement_6.md | ---
**TO THE EXTENT THAT THIS AIRCRAFT LEASE AGREEMENT CONSTITUTES CHATTEL PAPER (AS DEFINED IN THE UNIFORM COMMERCIAL CODE
AS IN EFFECT IN ANY APPLICABLE JURISDICTION), NO SECURITY INTEREST IN THIS AIRCRAFT LEASE AGREEMENT MAY BE CREATED THROUGH TRANSFER OR POSSESSION OF ANY COUNTERPART OTHER THAN THE ORIGINAL COUNTERPART, WHICH SHALL BE IDENTIFIED AS THE COUNTERPART
DESIGNATED AS THE ORIGINAL ON THE SIGNATURE PAGE OF THIS AGREEMENT BY LESSOR**
**AIRCRAFT LEASE AGREEMENT**
**Dated as of August 15, 2003**
**between**
**AFS Investments 55 LLC**
**as Lessor**
**and**
**AirTran Airways, Inc.**
**as Lessee**
**in respect of Aircraft: Boeing B737-700, September 2005 Scheduled Delivery Month**
**Serial No:** ***(As set forth in Lease Supplement No. 1)***
**Registration No:** ***(As set forth in Lease Supplement No. 1)***
---
**incorporating the provisions of a**
**COMMON TERMS AGREEMENT**
**Dated August 15, 2003**
**Between Aviation
Financial Services Inc. and AirTran Airways, Inc.**
--- | 2138 |
agreement_6.md | ---
**TO THE EXTENT THAT THIS AIRCRAFT LEASE AGREEMENT CONSTITUTES CHATTEL PAPER (AS DEFINED IN THE UNIFORM COMMERCIAL CODE
AS IN EFFECT IN ANY APPLICABLE JURISDICTION), NO SECURITY INTEREST IN THIS AIRCRAFT LEASE AGREEMENT MAY BE CREATED THROUGH TRANSFER OR POSSESSION OF ANY COUNTERPART OTHER THAN THE ORIGINAL COUNTERPART, WHICH SHALL BE IDENTIFIED AS THE COUNTERPART
DESIGNATED AS THE ORIGINAL ON THE SIGNATURE PAGE OF THIS AGREEMENT BY LESSOR**
**AIRCRAFT LEASE AGREEMENT**
**Dated as of August 15, 2003**
**between**
**AFS Investments 56 LLC**
**as Lessor**
**and**
**AirTran Airways, Inc.**
**as Lessee**
**in respect of Aircraft: Boeing B737-700, October 2005 Scheduled Delivery Month**
**Serial No:** ***(As set forth in Lease Supplement No. 1)***
**Registration No:** ***(As set forth in Lease Supplement No. 1)***
---
**incorporating the provisions of a**
**COMMON TERMS AGREEMENT**
**Dated August 15, 2003**
**Between Aviation
Financial Services Inc. and AirTran Airways, Inc.**
--- | 2139 |
agreement_6.md | ---
**TO THE EXTENT THAT THIS AIRCRAFT LEASE AGREEMENT CONSTITUTES CHATTEL PAPER (AS DEFINED IN THE UNIFORM COMMERCIAL CODE
AS IN EFFECT IN ANY APPLICABLE JURISDICTION), NO SECURITY INTEREST IN THIS AIRCRAFT LEASE AGREEMENT MAY BE CREATED THROUGH TRANSFER OR POSSESSION OF ANY COUNTERPART OTHER THAN THE ORIGINAL COUNTERPART, WHICH SHALL BE IDENTIFIED AS THE COUNTERPART
DESIGNATED AS THE ORIGINAL ON THE SIGNATURE PAGE OF THIS AGREEMENT BY LESSOR**
**AIRCRAFT LEASE AGREEMENT**
**Dated as of August 15, 2003**
**between**
**AFS Investments 57 LLC**
**as Lessor**
**and**
**AirTran Airways, Inc.**
**as Lessee**
**in respect of Aircraft: Boeing B737-700, November 2005 Scheduled Delivery Month**
**Serial No:** ***(As set forth in Lease Supplement No. 1)***
**Registration No:** ***(As set forth in Lease Supplement No. 1)***
---
**incorporating the provisions of a**
**COMMON TERMS AGREEMENT**
**Dated August 15, 2003**
**Between Aviation
Financial Services Inc. and AirTran Airways, Inc.**
--- | 2140 |
agreement_6.md | ---
**TO THE EXTENT THAT THIS AIRCRAFT LEASE AGREEMENT CONSTITUTES CHATTEL PAPER (AS DEFINED IN THE UNIFORM COMMERCIAL CODE
AS IN EFFECT IN ANY APPLICABLE JURISDICTION), NO SECURITY INTEREST IN THIS AIRCRAFT LEASE AGREEMENT MAY BE CREATED THROUGH TRANSFER OR POSSESSION OF ANY COUNTERPART OTHER THAN THE ORIGINAL COUNTERPART, WHICH SHALL BE IDENTIFIED AS THE COUNTERPART
DESIGNATED AS THE ORIGINAL ON THE SIGNATURE PAGE OF THIS AGREEMENT BY LESSOR**
**AIRCRAFT LEASE AGREEMENT**
**Dated as of August 15, 2003**
**between**
**AFS Investments 54 LLC**
**as Lessor**
**and**
**AirTran Airways, Inc.**
**as Lessee**
**in respect of Aircraft: Boeing B737-700, November 2005 Scheduled Delivery Month**
**Serial No:** ***(As set forth in Lease Supplement No. 1)***
**Registration No:** ***(As set forth in Lease Supplement No. 1)***
---
**incorporating the provisions of a**
**COMMON TERMS AGREEMENT**
**Dated August 15, 2003**
**Between Aviation
Financial Services Inc. and AirTran Airways, Inc.**
--- | 2141 |
agreement_6.md | ---
**TO THE EXTENT THAT THIS AIRCRAFT LEASE AGREEMENT CONSTITUTES CHATTEL PAPER (AS DEFINED IN THE UNIFORM COMMERCIAL CODE
AS IN EFFECT IN ANY APPLICABLE JURISDICTION), NO SECURITY INTEREST IN THIS AIRCRAFT LEASE AGREEMENT MAY BE CREATED THROUGH TRANSFER OR POSSESSION OF ANY COUNTERPART OTHER THAN THE ORIGINAL COUNTERPART, WHICH SHALL BE IDENTIFIED AS THE COUNTERPART
DESIGNATED AS THE ORIGINAL ON THE SIGNATURE PAGE OF THIS AGREEMENT BY LESSOR**
**AIRCRAFT LEASE AGREEMENT**
**Dated as of August 15, 2003**
**between**
**AFS Investments 55 LLC**
**as Lessor**
**and**
**AirTran Airways, Inc.**
**as Lessee**
**in respect of Aircraft: Boeing B737-700, January 2006 Scheduled Delivery Month**
**Serial No:** ***(As set forth in Lease Supplement No. 1)***
**Registration No:** ***(As set forth in Lease Supplement No. 1)***
---
**incorporating the provisions of a**
**COMMON TERMS AGREEMENT**
**Dated August 15, 2003**
**Between Aviation
Financial Services Inc. and AirTran Airways, Inc.**
--- | 2142 |
agreement_6.md | ---
**TO THE EXTENT THAT THIS AIRCRAFT LEASE AGREEMENT CONSTITUTES CHATTEL PAPER (AS DEFINED IN THE UNIFORM COMMERCIAL CODE
AS IN EFFECT IN ANY APPLICABLE JURISDICTION), NO SECURITY INTEREST IN THIS AIRCRAFT LEASE AGREEMENT MAY BE CREATED THROUGH TRANSFER OR POSSESSION OF ANY COUNTERPART OTHER THAN THE ORIGINAL COUNTERPART, WHICH SHALL BE IDENTIFIED AS THE COUNTERPART
DESIGNATED AS THE ORIGINAL ON THE SIGNATURE PAGE OF THIS AGREEMENT BY LESSOR**
**AIRCRAFT LEASE AGREEMENT**
**Dated as of August 15, 2003**
**between**
**AFS Investments 56 LLC**
**as Lessor**
**and**
**AirTran Airways, Inc.**
**as Lessee**
**in respect of Aircraft: Boeing B737-700, February 2006 Scheduled Delivery Month**
**Serial No:** ***(As set forth in Lease Supplement No. 1)***
**Registration No:** ***(As set forth in Lease Supplement No. 1)***
---
**incorporating the provisions of a**
**COMMON TERMS AGREEMENT**
**Dated August 15, 2003**
**Between Aviation
Financial Services Inc. and AirTran Airways, Inc.**
--- | 2143 |
agreement_6.md | ---
**TO THE EXTENT THAT THIS AIRCRAFT LEASE AGREEMENT CONSTITUTES CHATTEL PAPER (AS DEFINED IN THE UNIFORM COMMERCIAL CODE
AS IN EFFECT IN ANY APPLICABLE JURISDICTION), NO SECURITY INTEREST IN THIS AIRCRAFT LEASE AGREEMENT MAY BE CREATED THROUGH TRANSFER OR POSSESSION OF ANY COUNTERPART OTHER THAN THE ORIGINAL COUNTERPART, WHICH SHALL BE IDENTIFIED AS THE COUNTERPART
DESIGNATED AS THE ORIGINAL ON THE SIGNATURE PAGE OF THIS AGREEMENT BY LESSOR**
**AIRCRAFT LEASE AGREEMENT**
**Dated as of August 15, 2003**
**between**
**AFS Investments 57 LLC**
**as Lessor**
**and**
**AirTran Airways, Inc.**
**as Lessee**
**in respect of Aircraft: Boeing B737-700, March 2006 Scheduled Delivery Month**
**Serial No:** ***(As set forth in Lease Supplement No. 1)***
**Registration No:** ***(As set forth in Lease Supplement No. 1)***
---
**incorporating the provisions of a**
**COMMON TERMS AGREEMENT**
**Dated August 15, 2003**
**Between Aviation
Financial Services Inc. and AirTran Airways, Inc.**
--- | 2144 |
agreement_6.md | ---
**TO THE EXTENT THAT THIS AIRCRAFT LEASE AGREEMENT CONSTITUTES CHATTEL PAPER (AS DEFINED IN THE UNIFORM COMMERCIAL CODE
AS IN EFFECT IN ANY APPLICABLE JURISDICTION), NO SECURITY INTEREST IN THIS AIRCRAFT LEASE AGREEMENT MAY BE CREATED THROUGH TRANSFER OR POSSESSION OF ANY COUNTERPART OTHER THAN THE ORIGINAL COUNTERPART, WHICH SHALL BE IDENTIFIED AS THE COUNTERPART
DESIGNATED AS THE ORIGINAL ON THE SIGNATURE PAGE OF THIS AGREEMENT BY LESSOR**
**AIRCRAFT LEASE AGREEMENT**
**Dated as of August 15, 2003**
**between**
**AFS Investments 54 LLC**
**as Lessor**
**and**
**AirTran Airways, Inc.**
**as Lessee**
**in respect of Aircraft: Boeing B737-700, April 2006 Scheduled Delivery Month**
**Serial No:** ***(As set forth in Lease Supplement No. 1)***
**Registration No:** ***(As set forth in Lease Supplement No. 1)***
---
**incorporating the provisions of a**
**COMMON TERMS AGREEMENT**
**Dated August 15, 2003**
**Between Aviation
Financial Services Inc. and AirTran Airways, Inc.**
--- | 2145 |
agreement_6.md | ---
**TO THE EXTENT THAT THIS AIRCRAFT LEASE AGREEMENT CONSTITUTES CHATTEL PAPER (AS DEFINED IN THE UNIFORM COMMERCIAL CODE
AS IN EFFECT IN ANY APPLICABLE JURISDICTION), NO SECURITY INTEREST IN THIS AIRCRAFT LEASE AGREEMENT MAY BE CREATED THROUGH TRANSFER OR POSSESSION OF ANY COUNTERPART OTHER THAN THE ORIGINAL COUNTERPART, WHICH SHALL BE IDENTIFIED AS THE COUNTERPART
DESIGNATED AS THE ORIGINAL ON THE SIGNATURE PAGE OF THIS AGREEMENT BY LESSOR**
**AIRCRAFT LEASE AGREEMENT**
**Dated as of August 15, 2003**
**between**
**AFS Investments 55 LLC**
**as Lessor**
**and**
**AirTran Airways, Inc.**
**as Lessee**
**in respect of Aircraft: Boeing B737-700, May 2006 Scheduled Delivery Month**
**Serial No:** ***(As set forth in Lease Supplement No. 1)***
**Registration No:** ***(As set forth in Lease Supplement No. 1)***
---
**incorporating the provisions of a**
**COMMON TERMS AGREEMENT**
**Dated August 15, 2003**
**Between Aviation
Financial Services Inc. and AirTran Airways, Inc.**
--- | 2146 |
agreement_6.md | ---
**TO THE EXTENT THAT THIS AIRCRAFT LEASE AGREEMENT CONSTITUTES CHATTEL PAPER (AS DEFINED IN THE UNIFORM COMMERCIAL CODE
AS IN EFFECT IN ANY APPLICABLE JURISDICTION), NO SECURITY INTEREST IN THIS AIRCRAFT LEASE AGREEMENT MAY BE CREATED THROUGH TRANSFER OR POSSESSION OF ANY COUNTERPART OTHER THAN THE ORIGINAL COUNTERPART, WHICH SHALL BE IDENTIFIED AS THE COUNTERPART
DESIGNATED AS THE ORIGINAL ON THE SIGNATURE PAGE OF THIS AGREEMENT BY LESSOR**
**AIRCRAFT LEASE AGREEMENT**
**Dated as of August 15, 2003**
**between**
**AFS Investments 56 LLC**
**as Lessor**
**and**
**AirTran Airways, Inc.**
**as Lessee**
**in respect of Aircraft: Boeing B737-700, June 2006 Scheduled Delivery Month**
**Serial No:** ***(As set forth in Lease Supplement No. 1)***
**Registration No:** ***(As set forth in Lease Supplement No. 1)***
---
**incorporating the provisions of a**
**COMMON TERMS AGREEMENT**
**Dated August 15, 2003**
**Between Aviation
Financial Services Inc. and AirTran Airways, Inc.**
--- | 2147 |
agreement_6.md | ---
**TO THE EXTENT THAT THIS AIRCRAFT LEASE AGREEMENT CONSTITUTES CHATTEL PAPER (AS DEFINED IN THE UNIFORM COMMERCIAL CODE
AS IN EFFECT IN ANY APPLICABLE JURISDICTION), NO SECURITY INTEREST IN THIS AIRCRAFT LEASE AGREEMENT MAY BE CREATED THROUGH TRANSFER OR POSSESSION OF ANY COUNTERPART OTHER THAN THE ORIGINAL COUNTERPART, WHICH SHALL BE IDENTIFIED AS THE COUNTERPART
DESIGNATED AS THE ORIGINAL ON THE SIGNATURE PAGE OF THIS AGREEMENT BY LESSOR**
**AIRCRAFT LEASE AGREEMENT**
**Dated as of August 15, 2003**
**between**
**AFS Investments 57 LLC**
**as Lessor**
**and**
**AirTran Airways, Inc.**
**as Lessee**
**in respect of Aircraft: Boeing B737-700, September 2006 Scheduled Delivery Month**
**Serial No:** ***(As set forth in Lease Supplement No. 1)***
**Registration No:** ***(As set forth in Lease Supplement No. 1)***
---
**incorporating the provisions of a**
**COMMON TERMS AGREEMENT**
**Dated August 15, 2003**
**Between Aviation
Financial Services Inc. and AirTran Airways, Inc.**
--- | 2148 |
agreement_6.md | ---
**TO THE EXTENT THAT THIS AIRCRAFT LEASE AGREEMENT CONSTITUTES CHATTEL PAPER (AS DEFINED IN THE UNIFORM COMMERCIAL CODE
AS IN EFFECT IN ANY APPLICABLE JURISDICTION), NO SECURITY INTEREST IN THIS AIRCRAFT LEASE AGREEMENT MAY BE CREATED THROUGH TRANSFER OR POSSESSION OF ANY COUNTERPART OTHER THAN THE ORIGINAL COUNTERPART, WHICH SHALL BE IDENTIFIED AS THE COUNTERPART
DESIGNATED AS THE ORIGINAL ON THE SIGNATURE PAGE OF THIS AGREEMENT BY LESSOR**
**AIRCRAFT LEASE AGREEMENT**
**Dated as of August 15, 2003**
**between**
**AFS Investments 54 LLC**
**as Lessor**
**and**
**AirTran Airways, Inc.**
**as Lessee**
**in respect of Aircraft: Boeing B737-700, June 2004 Scheduled Delivery Month**
**Serial No:** ***(As set forth in Lease Supplement No. 1)***
**Registration No:** ***(As set forth in Lease Supplement No. 1)***
---
**incorporating the provisions of a**
**COMMON TERMS AGREEMENT**
**Dated August 15, 2003**
**Between Aviation
Financial Services Inc. and AirTran Airways, Inc.**
--- | 2149 |
agreement_6.md | ---
**TO THE EXTENT THAT THIS AIRCRAFT LEASE AGREEMENT CONSTITUTES CHATTEL PAPER (AS DEFINED IN THE UNIFORM COMMERCIAL CODE
AS IN EFFECT IN ANY APPLICABLE JURISDICTION), NO SECURITY INTEREST IN THIS AIRCRAFT LEASE AGREEMENT MAY BE CREATED THROUGH TRANSFER OR POSSESSION OF ANY COUNTERPART OTHER THAN THE ORIGINAL COUNTERPART, WHICH SHALL BE IDENTIFIED AS THE COUNTERPART
DESIGNATED AS THE ORIGINAL ON THE SIGNATURE PAGE OF THIS AGREEMENT BY LESSOR**
**AIRCRAFT LEASE AGREEMENT**
**Dated as of August 15, 2003**
**between**
**AFS Investments 55 LLC**
**as Lessor**
**and**
**AirTran Airways, Inc.**
**as Lessee**
**in respect of Aircraft: Boeing B737-700, June 2004 Scheduled Delivery Month**
**Serial No:** ***(As set forth in Lease Supplement No. 1)***
**Registration No:** ***(As set forth in Lease Supplement No. 1)***
---
**incorporating the provisions of a**
**COMMON TERMS AGREEMENT**
**Dated August 15, 2003**
**Between Aviation
Financial Services Inc. and AirTran Airways, Inc.**
--- | 2150 |
agreement_6.md | ---
**TO THE EXTENT THAT THIS AIRCRAFT LEASE AGREEMENT CONSTITUTES CHATTEL PAPER (AS DEFINED IN THE UNIFORM COMMERCIAL CODE
AS IN EFFECT IN ANY APPLICABLE JURISDICTION), NO SECURITY INTEREST IN THIS AIRCRAFT LEASE AGREEMENT MAY BE CREATED THROUGH TRANSFER OR POSSESSION OF ANY COUNTERPART OTHER THAN THE ORIGINAL COUNTERPART, WHICH SHALL BE IDENTIFIED AS THE COUNTERPART
DESIGNATED AS THE ORIGINAL ON THE SIGNATURE PAGE OF THIS AGREEMENT BY LESSOR**
**AIRCRAFT LEASE AGREEMENT**
**Dated as of August 15, 2003**
**between**
**AFS Investments [ ] LLC**
**as Lessor**
**and**
**AirTran Airways, Inc.**
**as Lessee**
**in respect of Aircraft: Boeing B737-700, [ ] Scheduled Delivery Month**
**Serial No:** ***(As set forth in Lease Supplement No. 1)***
**Registration No:** ***(As set forth in Lease
Supplement No. 1)***
---
**incorporating the provisions of a**
**COMMON TERMS AGREEMENT**
**Dated August 15, 2003**
**Between Aviation Financial Services Inc. and AirTran Airways, Inc.**
--- | 2151 |
agreement_6.md | **AIRCRAFT LEASE AGREEMENT**
**THIS AIRCRAFT LEASE AGREEMENT** is made as of August 15, 2003 and is
**BETWEEN:**
| | | |
| --- | --- | --- |
| | (1) | AFS Investments [ ] LLC, a limited liability company organized under the Laws of the State of Delaware having its principal place of business and chief
executive office at 201 High Ridge Road, Stamford, Connecticut 06927 (“Lessor”); and |
| | | |
| --- | --- | --- |
| | (2) | AirTran Airways, Inc., a company incorporated under the Laws of the State of Delaware having its principal place of business and chief executive office at 9955 AirTran Boulevard,
Orlando, Florida 32827 (“Lessee”). |
**WHEREAS:**
| | | |
| --- | --- | --- |
| | (A) | Lessee wishes to lease the Aircraft (as defined below) from Lessor, and Lessor wishes to lease the Aircraft to Lessee, on the terms and subject to the conditions provided herein;
|
| | | |
| --- | --- | --- |
| | (B) | Aviation Financial Services Inc. (“AFSI”), an Affiliate of Lessor, and Lessee have entered into the Common Terms Agreement (as defined below) in respect of aircraft that
may be leased from time to time by Lessee or one of its Affiliates from Lessor or one of its Affiliates; and | | 2152 |
agreement_6.md | | | | |
| --- | --- | --- |
| | (C) | Lessor and Lessee wish to incorporate by reference such Common Terms Agreement, as well as Schedules A and B attached hereto, into this Aircraft Lease Agreement for the Aircraft and
a true and complete copy of such Common Terms Agreement is attached hereto as Schedule C; |
**NOW, THEREFORE**, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
| | | |
| --- | --- | --- |
| | 1. | **INTERPRETATION** |
| | | |
| --- | --- | --- |
| | 1.1 | **Definitions:** In this Aircraft Lease Agreement, the following capitalized words and expressions have the respective meanings set forth below: |
**AD Compliance Period** means 90 days after the Return Occasion.
**Aircraft** means the Boeing B737-700 aircraft (which
term includes, where the context admits, a separate reference to all Engines, Parts and Aircraft Documents and Records), with two (2) CFM56-7B20 Engines, all as more completely described on Schedule A hereto.
-2- | 2153 |
agreement_6.md | **Airframe Structural Check and Assumed Ratio** have the meanings specified in Schedule B.
**Airframe Supplemental Rent, Annual Supplemental Rent Adjustment and
APU Supplemental Rent** have the meanings specified in Schedule B.
**Common Terms Agreement****or CTA** means the “Aircraft Lease Common Terms Agreement” dated as of August 15, 2003 executed by AFSI and Lessee (as in effect on the date hereof without, unless Lessor and Lessee otherwise
expressly agree, giving any effect to any subsequent amendment, supplement, waiver or other modification thereto), and which forms part of this Aircraft Lease Agreement.
**Delivery Condition Requirements** means the requirements specified in Part II of Schedule A.
**Delivery Location** means Seattle, Washington, or such other location
within the continental US as shall be mutually acceptable to Lessor and Lessee.
**Deposit** means all amounts payable pursuant to Section 3.1 hereof.
**Discount Rate** has the meaning specified in Schedule B.
**Early Termination Date** has the meaning specified in Section 2.4 hereof.
**Engine Refurbishment** has the meaning specified in Schedule B.
**Engine Agreed Value** has the meaning specified in Schedule B.
**Engine Supplemental Rent and Engine LLP Supplemental
Rent** have the meanings specified in Schedule B. | 2154 |
agreement_6.md | **Engine Supplemental Rent and Engine LLP Supplemental
Rent** have the meanings specified in Schedule B.
**Extended Expiry Date** means (i) with respect to the First Extension Option, the date that corresponds to the Scheduled Expiry Date in the 12th month after the Scheduled Expiry Date; (ii) with respect to the Second Extension Option, the date that corresponds to the Scheduled Expiry Date in the 24th month after the Scheduled Expiry Date; (iii) with respect to the Third Extension Option, the date that corresponds to the Scheduled Expiry Date in the
36th month after the Scheduled Expiry Date; and (iv) with respect to the Fourth Extension Option, the date that
corresponds to the Scheduled Expiry Date in the 3rd month after the then applicable Scheduled Expiry Date.
**Extension Option** means any of the extension options
granted to Lessee pursuant to Section 2.3 hereof.
-3- | 2155 |
agreement_6.md | **Final Delivery Date** means the date that is 365 days after the last day of the Scheduled Delivery
Month.
**GECC** means General Electric Capital
Corporation, a Delaware Corporation.
**Guarantor** means
AirTran Holdings, Inc.
**Habitual Base** means the United
States of America or, subject to the prior written consent of Lessor, any other country or countries in which the Aircraft is for the time being habitually based.
**Indemnitee** means each of Lessor, Owner, AFSI (if neither Lessor nor Owner), GECAS (in its capacity as lease manager),
the Financing Parties’ Representative, and the Financing Parties, and their respective successors and permitted assigns, and each of their respective Affiliates, directors, officers, representatives, agents and employees; provided, however,
that none of the foregoing Persons shall be deemed “Indemnitees” in respect of such Person’s status as a manufacturer or maintenance servicer or provider.
**Interest Rate** has the meaning specified in Schedule B.
**Landing Gear Supplemental Rent** has the meaning specified in Schedule
B.
**LC Amount** is not applicable.
**Lease** means and includes this Aircraft Lease Agreement, Schedules A
and B hereto, each Lease Supplement hereto, including Lease Supplement No. 1, and the Common Terms Agreement.
**Lessor/Owner Tax Jurisdiction** has the meaning specified in Schedule B.
**Manufacturer** means the manufacturer of the Airframe or an Engine, as the case may be, as set forth on Schedule A
hereto. | 2156 |
agreement_6.md | **Minimum APU Limit, Minimum Component Calendar
Life, Minimum Component Cycles, Minimum Component Flight Hours, Minimum Engine Cycles, Minimum Engine Flight Hours, Minimum Landing Gear Calendar Time, Minimum Landing Gear Cycles, Minimum Landing Gear Flight Hours and Minimum Liability Coverage**
have the meanings specified in Schedule B.
**Owner** means
Lessor.
**Pre-Approved Bank** means any bank organized
under the laws of the United States or any State thereof, or the New York branch of a major international bank, in each
-4- | 2157 |
agreement_6.md | case (a) for only so long as its long-term Dollar denominated unsecured debt (or if it does not have
long-term unsecured Dollar denominated debt, its parent corporation’s long-term unsecured Dollar denominated debt) carries a rating from S&P of A+ or better, and (b) so long as each Letter of Credit, if applicable, issued by any such bank
to Lessor permits drawings thereunder by facsimile.
**Redelivery Location** means Lessee’s principal maintenance base or such other redelivery location as Lessor and Lessee may mutually agree upon.
**Scheduled Delivery Month** means [ ].
**Scheduled Expiry Date** means the day preceding the
numerically corresponding day to the Rent Commencement Date one hundred and eighty three (183) months after the Rent Commencement Date or in the event that the date would fall on a day that is not a Business Day, the immediately succeeding Business
Day, unless such date is extended pursuant to Lessee’s exercise of an Extension Option, in which case the Scheduled Expiry Date shall be the Extended Expiry Date corresponding to such Extension Option.
**State of Registry** means the United States of America.
**Supplemental Rent** means all amounts payable pursuant to Section 3.3
hereof.
**Tax Indemnitee** has the meaning specified in
Schedule B. | 2158 |
agreement_6.md | **Tax Indemnitee** has the meaning specified in
Schedule B.
| | | |
| --- | --- | --- |
| | 1.2 | **Interpretation**: Unless otherwise defined or expressly specified herein, capitalized words and expressions when used in this Aircraft Lease Agreement have the same respective
meanings as defined in the Common Terms Agreement. The construction provisions of Section 1.2 of the Common Terms Agreement shall apply to this Aircraft Lease Agreement. In the event of a conflict between the provisions of this Aircraft Lease
Agreement and the provisions of the Common Terms Agreement, the provisions of this Aircraft Lease Agreement shall control. |
| | | |
| --- | --- | --- |
| | 2. | **LEASING** |
| | | |
| --- | --- | --- |
| | 2.1 | **Agreement to Lease**: Subject to the terms and conditions of the Lease, Lessor will lease the Aircraft to Lessee and Lessee will take delivery of and lease the Aircraft from
Lessor in accordance with the Lease for the duration of the Term. |
| | | |
| --- | --- | --- |
| | 2.2 | **Term**: Subject to Sections 4.1 through 4.4 of the Common Terms Agreement, Delivery of the Aircraft will occur at the Delivery Location, whereupon Lessee shall accept the
Aircraft hereunder and evidence such Delivery and acceptance by executing and delivering Lease Supplement No. 1 as provided in Section 4.3 of the |
-5- | 2159 |
agreement_6.md | Common Terms Agreement. The Term will commence on the Delivery Date, which Delivery Date is scheduled to
occur in the Scheduled Delivery Month, and will expire on the Scheduled Expiry Date unless terminated earlier in accordance with the provisions of the Lease or unless extended in accordance with the provisions of the Lease.
| | | |
| --- | --- | --- |
| | 2.3 | **Extension Options**: | | 2160 |
agreement_6.md | | | | |
| --- | --- | --- |
| | (a) | Provided that Lessee shall not have theretofore exercised the Fourth Extension Option, Lessor hereby grants Lessee the right to extend the Term for one (1) year from the Scheduled
Expiry Date in accordance with the terms and conditions set forth in this Section 2.3 (the “First Extension Option”). Provided that Lessee exercises the First Extension Option in accordance herewith, and further provided that Lessee shall
not have theretofore exercised the Fourth Extension Option, Lessee shall have the right to further extend the Term an additional one (1) year from the then applicable Scheduled Expiry Date in accordance with the terms and conditions set forth in
this Section 2.3 (the “Second Extension Option”). Provided that Lessee exercises the Second Extension Option, and further provided that Lessee shall not have theretofore exercised the Fourth Extension Option, Lessee shall have the right to
further extend the Term for an additional one (1) year from the then applicable Scheduled Expiry Date in accordance with the terms and conditions set forth in this Section 2.3 (the “Third Extension Option”). Lessee shall have an additional
right to extend the Term for one three (3) month period from the then applicable Scheduled Expiry Date in accordance with the terms and conditions set forth in this Section 2.3 (the “Fourth Extension Option,” and together with the First
Extension Option, Second Extension Option and Third Extension Option, the “Extension Options”). |
| | | |
| --- | --- | --- |
| | (b) | In order to exercise any Extension Option, the following conditions must be satisfied: | | 2161 |
agreement_6.md | | | | |
| --- | --- | --- |
| | (i) | [FOR ODD NUMBERED DELIVERY POSITIONS – Not later than twelve (12) months prior to then applicable Scheduled Expiry Date as extended, Lessor shall have received a written notice
from Lessee stating that it is exercising the Extension Option, which notice once given shall be irrevocable.] [FOR EVEN NUMBERED DELIVERY POSITIONS—With respect to the First Extension Option, Second Extension Option and Third Extension Option,
not later than twelve (12) months prior to then applicable Scheduled Expiry Date and with respect to the Fourth Extension Option, not later than fifteen (15) months prior to the Scheduled Expiry Date as extended, Lessor shall have received a written
notice from Lessee stating that it is exercising the Extension Option, which notice once given shall be irrevocable.] |
-6- | 2162 |
agreement_6.md | | | | |
| --- | --- | --- |
| | (ii) | Promptly after such notice, Lessee shall deliver to Lessor a Lease Supplement, board resolutions, legal opinions and other documents related to such extension, as Lessor may
reasonably request. |
| | | |
| --- | --- | --- |
| | (iii) | no Significant Default nor any Event of Default shall have occurred and be continuing on the date that Lessor receives notice of Lessee’s exercise of the Extension Option or on
the then applicable Scheduled Expiry Date (as determined without giving effect to Lessee’s exercise of the Extension Option). |
| | | |
| --- | --- | --- |
| | (c) | If Lessee elects to exercise an Extension Option then, with effect from the Scheduled Expiry Date, the Lease shall be automatically amended as follows: |
| | | |
| --- | --- | --- |
| | (i) | with respect to the First Extension Option, the words “one hundred eighty three (183) months after the Rent Commencement Date” in the definition of “Scheduled Expiry
Date” shall be deemed replaced by the words “one hundred ninety five (195) months after the Rent Commencement Date” (provided, however, if Lessee exercises the Fourth Extension Option concurrently with the First Extension Option, the
words “one hundred eighty three (183) months after the Rent Commencement Date” in the definition of “Scheduled Expiry Date” shall be deemed replaced by the words “one hundred ninety eight (198) months after the Rent
Commencement Date”); | | 2163 |
agreement_6.md | | | | |
| --- | --- | --- |
| | (ii) | with respect to the Second Extension Option, the words “one hundred ninety five (195) months after the Rent Commencement Date” in the definition of “Scheduled Expiry
Date” shall be deemed replaced by the words “two hundred seven (207) months after the Rent Commencement Date” (provided, however, if Lessee exercises the Fourth Extension Option concurrently with the Second Extension Option, the words
“one hundred ninety five (195) months after the Rent Commencement Date” in the definition of “Scheduled Expiry Date” shall be deemed replaced by the words “two hundred ten (210) months after the Rent Commencement
Date”); |
| | | |
| --- | --- | --- |
| | (iii) | with respect to the Third Extension Option, the words “two hundred seven (207) months after the Rent Commencement Date” in the definition of “Scheduled Expiry
Date” shall be deemed replaced by the words “two hundred nineteen (219) months after the Rent Commencement Date” (provided, however, if Lessee exercises the Fourth Extension Option concurrently with the Third Extension
|
-7- | 2164 |
agreement_6.md | Option, the words “two hundred seven (207) months after the Rent Commencement Date” in the
definition of “Scheduled Expiry Date” shall be deemed replaced by the words “two hundred twenty two (222) months after the Rent Commencement Date”); and
| | | |
| --- | --- | --- |
| | (iv) | in the event Lessee does not exercise any of the First Extension Option, the Second Extension Option or the Third Extension Option, but elects to exercise the Fourth Extension
Option, the words “one hundred eighty three (183) months after the Rent Commencement Date” in the definition of “Scheduled Expiry Date” shall be deemed replaced by the words “one hundred eighty six (186) months after the
Rent Commencement Date”. |
For the avoidance
of doubt, Lessor and Lessee acknowledge and agree that the Fourth Extension Option may only be exercised once during the Term. Lessor and Lessee further acknowledge and agree that all other provisions of the Lease shall remain in full force and
effect.
| | | |
| --- | --- | --- |
| | 2.4 | **Early Termination Option**: Notwithstanding the other provisions of the Lease, Lessee shall have the right to terminate the leasing of the Aircraft hereunder on the date which
corresponds to the Scheduled Expiry Date three (3) months prior to the Scheduled Expiry Date (the “Early Termination Date”) provided that: | | 2165 |
agreement_6.md | | | | |
| --- | --- | --- |
| | (a) | Lessee shall give Lessor notice in writing (the “Termination Notice”) of its exercise of such right not less than twelve (12) months prior to the Early Termination Date,
which notice once given shall be irrevocable; |
| | | |
| --- | --- | --- |
| | (b) | no Significant Default nor any Event of Default shall have occurred and be continuing on the date on which Lessee issues the Termination Notice or on the Early Termination Date; and
|
| | | |
| --- | --- | --- |
| | (c) | upon receipt by Lessor of the Termination Notice given by Lessee in respect of the Aircraft, the “Expiry Date” of the Aircraft Lease Agreement shall be deemed to be the
Early Termination Date, and the Lease shall be deemed to have been so amended automatically, but all other provisions of the Lease shall remain in full and unvaried force and effect. |
| | | |
| --- | --- | --- |
| | 2.5 | **Guarantee:** Lessee is required to provide a Guarantee by Guarantor in accordance with Section 5.15 of the Common Terms Agreement and a legal opinion of Lessee’s legal
counsel (who may be Lessee’s in-house legal counsel) in respect of the Guarantee in form and substance reasonably acceptable to Lessor. Contemporaneously with entering into this Aircraft Lease Agreement, Lessor is required to provide a
guarantee of Lessor’s obligations hereunder by AFSI. Lessor |
-8- | 2166 |
agreement_6.md | is required to provide a legal opinion of AFSI’s legal counsel (who may be AFSI’s in-house
legal counsel) in respect of such guarantee in form and substance reasonably acceptable to Lessee.
| | | |
| --- | --- | --- |
| | 2.6 | **Pre-Delivery Adverse Change:** Lessor will have the right prior to delivery to cancel the Lease, if in Lessor’s judgment, acting reasonably and in good faith, in relation
to the date hereof there occurs, or could reasonably be expected to occur within six (6) months of the date of Lessor’s determination, any material adverse change in Lessee’s financial condition, its operations, its liabilities, its
business or its prospects, or in its ability to perform its obligations contemplated hereunder or in the ability of Lessor to exercise any right or remedy customarily afforded a lessor of aircraft to a Certificated Air Carrier. Without limiting the
generality of the foregoing, such a material adverse change shall be deemed to have occurred if Lessee or Guarantor files, is subject to an involuntary filing or announces that it is contemplating the filing of, a petition in bankruptcy or voluntary
petition seeking reorganization in a proceeding under any bankruptcy or insolvency Laws. |
| | | |
| --- | --- | --- |
| | 3. | **PAYMENTS** |
| | | |
| --- | --- | --- |
| | 3.1 | **Deposit**: Lessee shall pay to Lessor the Deposit in cash (to which Deposit Section 5.13 of the Common Terms Agreement shall apply), in the amounts and at the times provided in
Schedule B hereto. | | 2167 |
agreement_6.md | | | | |
| --- | --- | --- |
| | 3.2 | **Rent**: Lessee shall pay Rent to Lessor on each Rent Date during the Term in the amount provided in Schedule B hereto and as provided in Sections 5.2 and 5.3 of the Common
Terms Agreement. The first installment of Rent shall be due and payable on the Rent Commencement Date as defined herein. |
| | | |
| --- | --- | --- |
| | 3.3 | **Supplemental Rent**: Lessee shall pay Supplemental Rent to Lessor on each applicable date during the Term in the amounts provided in Schedule B hereto and as provided in
Section 5.4 of the Common Terms Agreement. |
| | | |
| --- | --- | --- |
| | 3.4 | **Lessor’s Bank Account:** For the purposes of Section 5.5 of the Common Terms Agreement, Lessor’s bank account and wire transfer particulars, to which all payments to
Lessor shall be made, are at the date hereof: Deutsche Bank Trust Company, New York, ABA Number 021-001-033, for the account of GE Capital Aviation Services, Inc., as Manager, for credit to AFS Investments
[ ] LLC, Account Number 50-234-585. |
| | | |
| --- | --- | --- |
| | 3.5 | **Lessor’s Maintenance Contribution**: Lessor shall make maintenance contribution payments as and to the extent provided in Section 7.2 of the Common Terms Agreement.
|
-9- | 2168 |
agreement_6.md | | | | |
| --- | --- | --- |
| | 3.6 | **Tax Indemnity**: Lessor has assumed that MACRS Deductions (as defined in Schedule B) shall be available to Lessor in respect of the leasing of the Aircraft and that no more
than ten percent (10%) of any items of income, deduction, or loss in respect of the Aircraft or the leasing thereof will be from foreign sources. The indemnification obligations of Lessee with respect thereto are set forth in Part IV of Schedule B.
|
| | | |
| --- | --- | --- |
| | 3.7 | **MCPH**: It is acknowledged that Lessee may wish (either at Delivery or subsequently) to enroll the Engines into an engine maintenance agreement with GE Engine Services
(“GEES”) on a restored hour basis (the “GEES MCPH Agreement”). If Lessee enters into the GEES MCPH Agreement, in lieu of the maintenance contributions contemplated by Section 3.5 hereof, and provided no Significant Default or
Event of Default has occurred and is continuing as to which Lessor is then exercising remedies, in connection with performance of an Engine Refurbishment, Lessor shall pay directly to GEES the lesser of (a) the amount required by the GEES MCPH
Agreement at the relevant time, and (b) the balance of the Supplemental Rent received and not previously disbursed by Lessor corresponding to the Engine Refurbishment of the relevant Engine. |
| | | |
| --- | --- | --- |
| | 4. | **CONDITION OF THE AIRCRAFT AT DELIVERY** | | 2169 |
agreement_6.md | | | | |
| --- | --- | --- |
| | 4.1 | On the Delivery Date, as a condition to Lessee’s obligation to accept delivery thereof, the Aircraft shall be in the condition provided in Part II of Schedule A hereto. As
promptly as practicable after Delivery, Lessee will install a Nameplate in accordance with Section 8.6(a) of the Common Terms Agreement which reads as follows: |
“This [Aircraft] [Engine] is owned by AFS Investments [ ] LLC and is leased to AirTran Airways,
Inc. and may not be or remain in the possession of or be operated by, any other person without the prior written consent of AFS Investments [ ] LLC.”
| | | |
| --- | --- | --- |
| | 4.2 | It is intended that Lessor shall acquire the Aircraft from the Manufacturer for the purpose of leasing it to Lessee hereunder. Notwithstanding the terms of the Common Terms
Agreement: |
| | | |
| --- | --- | --- |
| | (a) | the Scheduled Delivery Date shall be the date notified by the Manufacturer as the date for delivery of the Aircraft under the aircraft purchase agreement; |
| | | |
| --- | --- | --- |
| | (b) | the Pre-Delivery Procedure referenced in Section 4.2 of the Common Terms Agreement shall be carried out immediately prior to such acquisition of the Aircraft; and
|
-10- | 2170 |
agreement_6.md | | | | |
| --- | --- | --- |
| | (c) | Lessor will offer to deliver the Aircraft to Lessee at the Delivery Location immediately subsequent to such acquisition. |
| | | |
| --- | --- | --- |
| | 5. | **CONDITION OF THE AIRCRAFT AT REDELIVERY** |
| | | |
| --- | --- | --- |
| | 5.1 | On the Return Occasion, Lessee shall redeliver the Aircraft to Lessor at the Redelivery Location or, if applicable, as specified in Section 13.2 of the Common Terms Agreement, and
at such redelivery the Aircraft shall be in the condition provided in Part III of Schedule A hereto and in the Common Terms Agreement, including Schedule 6 of the Common Terms Agreement. |
| | | |
| --- | --- | --- |
| | 6. | **ADDRESSES FOR NOTICES** |
The addresses and facsimile and telephone numbers of Lessor and Lessee are as follows:
| | | |
| --- | --- | --- |
| Lessor: | | AFS Investments [ ] LLC |
| Address: | | c/o GE Capital Aviation Services, Inc. |
| | | 201 High Ridge Road |
| | | Stamford, Connecticut 06927 |
| Attention: | | Contracts Leader |
| Facsimile: | | [ ] |
| Telephone: | | [ ] |
| Email: | | notices@gecas.com |
With a copy to: | 2171 |
agreement_6.md | With a copy to:
| |
| --- |
| GE Capital Aviation Services, Inc. |
| | |
| Address: | | 201 High Ridge Road |
| | | Stamford, Connecticut 06927 |
| Attention: | | Contracts Leader |
| Facsimile: | | [ ] |
| Telephone: | | [ ] |
| Email: | | notices@gecas.com |
| | | |
| --- | --- | --- |
| Lessee: | | AirTran Airways, Inc. |
| Address: | | 9955 AirTran Boulevard |
| | | Orlando, Florida 32827 |
| Attention: | | General Counsel |
| Facsimile: | | [ ] |
| Telephone: | | [ ] |
| Email: | | [ ] |
-11- | 2172 |
agreement_6.md | | | | |
| --- | --- | --- |
| | 7. | **THE SCHEDULES AND COMMON TERMS AGREEMENT** |
ALL THE PROVISIONS OF SCHEDULE A HERETO, SCHEDULE B HERETO AND THE COMMON TERMS AGREEMENT ARE INCORPORATED BY REFERENCE HEREIN AND ARE PART OF THIS
AIRCRAFT LEASE AGREEMENT AS IF THEY WERE SET OUT IN FULL HEREIN.
-12-
---
| | | |
| --- | --- | --- |
| | 8. | **NO AMENDMENT EXCEPT IN WRITING** |
No provision of this Lease, including any provision of Schedule A, Schedule B or the Common Terms Agreement, may be amended, rescinded, changed, waived,
discharged, terminated or otherwise modified in any way whatsoever, except by a writing signed by the party to be charged. Pursuant to and to comply with Section (2) of Section 2A-208 of the UCC, if and to the extent applicable, Lessor and Lessee
acknowledge their agreement to the provisions of this Section 8 by their signatures below.
**IN WITNESS** **WHEREOF,** the parties hereto have executed this Aircraft Lease Agreement, each by their duly authorized representative(s), as of the date shown at the beginning of this Aircraft Lease
Agreement.
| | | | | |
| --- | --- | --- | --- | --- |
| **LESSOR:** **AFS
INVESTMENTS [ ] LLC** by its member AFS Investments [ ], Inc. | | | | **LESSEE:** **AIRTRAN
AIRWAYS, INC.** |
| | | | | |
| By: | | | 2173 |
agreement_6.md | | | | | By: | |
---
|
| Name: | |
---
| | | | Name: | |
---
|
| Title: | |
---
| | | | Title: | |
---
|
-S-
---
**SCHEDULE A**
**PART I-AIRFRAME AND ENGINES DESCRIPTION**
**AIRCRAFT**
| | | |
| --- | --- | --- |
| Manufacturer: | | Boeing |
| | |
| Model: | | B737-700 |
| | |
| Serial Number: | | To be advised thirty (30) days before Delivery and included in Lease Supplement No. 1 |
| | |
| Registration No. | | To be advised at Delivery and included in Lease Supplement No. 1 |
**ENGINES**
(each of which has 750 or more rated takeoff horsepower or the equivalent of such horsepower)
| | | |
| --- | --- | --- |
| Engine Type: | | CFM56-7B20 |
| | |
| Serial Nos: | | To be advised thirty (30) days before Delivery and included in Lease Supplement No. 1 |
A-1
---
**SCHEDULE A**
**PART II**
\*\*\* | 2174 |
agreement_6.md | **SCHEDULE A**
**PART II**
\*\*\*
---
| | |
| --- | --- |
| \*\*\* | Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended. |
A-2
---
**SCHEDULE A**
**PART III**
\*\*\*
---
| | |
| --- | --- |
| \*\*\* | Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended. |
A-3
---
**SCHEDULE A**
**PARTS II AND III**
**[FAA]**
INTENTIONALLY DELETED FROM THE VERSION OF THIS DOCUMENT FILED WITH THE FAA AS CONTAINING CONFIDENTIAL AND PROPRIETARY INFORMATION
A-4
---
**SCHEDULE B**
\*\*\*
---
| | |
| --- | --- |
| \*\*\* | Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended. |
B-1
---
**SCHEDULE B**
**[FAA]**
INTENTIONALLY DELETED FROM THE VERSION OF THIS DOCUMENT FILED WITH THE FAA AS CONTAINING CONFIDENTIAL AND PROPRIETARY INFORMATION
B-2 | 2175 |
agreement_8.md | EX-10.1
2
d391435dex101.htm
AMENDED AND RESTATED AIRCRAFT LEASE AGREEMENT
Amended and Restated Aircraft Lease Agreement
**Exhibit 10.1**
**AMENDED AND RESTATED**
**AIRCRAFT LEASE AGREEMENT**
This AMENDED AND RESTATED AIRCRAFT LEASE AGREEMENT (“Agreement”) dated as of August 1, 2012, is by and between The
Wendy’s Company, a Delaware corporation with its principal place of business at One Dave Thomas Boulevard, Dublin, OH 43017 (“Lessor”) and TASCO, LLC, a Delaware limited liability company with its principal place of business at
280 Park Avenue, New York, New York 10017-1216 (“Lessee”).
WHEREAS, Lessor owns a Gulfstream Aerospace
G-IVSP aircraft bearing U.S. Registration No. N394TR and manufacturer’s serial number 1252 and the two (2) Rolls Royce model Tay 611-8 engines installed thereon, bearing manufacturer’s serial numbers 16623 and 16624, respectively, and
all parts, instruments, avionics, attachments and appurtenances installed thereon or attached thereto (the “Aircraft”); and
WHEREAS, Lessee and Lessor entered into an Aircraft Lease Agreement dated as of June 10, 2009, as amended (as so amended, the “Original Lease Agreement”), pursuant to which the
Lessee has leased the Aircraft on a non-exclusive basis from Lessor
WHEREAS, Lessee desires to continue to lease the Aircraft
from Lessor and Lessor desires to continue to lease the Aircraft to Lessee, on an exclusive basis upon and subject to the terms and conditions of this Agreement; | 2176 |
agreement_8.md | NOW, THEREFORE, in consideration of the mutual agreements herein contained and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree to amend
and restate the Original Lease Agreement in its entirety as follows:
Section 1: AGREEMENT TO LEASE
1.1 Lease of Aircraft. Subject to the terms and conditions of this Agreement, Lessor agrees to lease the Aircraft to Lessee and
Lessee agrees to take the Aircraft on lease from Lessor, such lease to be on an exclusive basis.
Section 2: TERM; DELIVERY/REDELIVERY;
CONDITION
2.1 Term. The term for the lease of the Aircraft shall begin on the date hereof and shall expire on
January 5, 2014 at 11:59 p.m. and will be non-cancellable unless earlier terminated by Lessee pursuant to either Sections 4.3(ii) or 4.3(iii) below (the “Term”).
2.2 Delivery and Redelivery. Delivery and redelivery of the Aircraft by one party to the other party shall be made at Westchester
County Airport in New York or Stewart International Airport in New Windsor, New York; provided, however, the delivery and/or re-delivery may be made at such other airport as the parties may agree. Lessee shall not enter into any lease
or sublease or other occupancy agreement relating to hangar space for the Aircraft that has a term that ends after January 31, 2014. If Lessee shall enter into a new lease, sublease or other arrangement relating to hangar space for the Aircraft
(a “New Hangar Lease”) the amount of the payments under such New Hangar | 2177 |
agreement_8.md | Lease in excess of $105,600 per annum shall not be included in the cost threshold set forth in Section 4.3(d)(ii)(x) herein. If the Lessee terminates this Agreement for any reason, other
than by reason of a default by Lessor as provided in Section 9.2 below, Lessee shall be responsible for all costs and expenses in connection with the New Hanger Lease in excess of the amount due for one month under the Lessor’s lease at
Stewart Airport in effect as of the date of this Agreement (which amount Lessor shall be responsible for).
2.3 Delivery
Condition. Except as otherwise expressly provided by this Agreement, THE AIRCRAFT IS LEASED TO LESSEE “AS IS, WHERE IS” AND LESSOR HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE OR DEALING OR USAGE OF TRADE, AND ALL OBLIGATION AND LIABILITY IN TORT, NEGLIGENCE AND STRICT
LIABILITY AS TO THE AIRWORTHINESS, CONDITION, DESIGN OR OPERATION OF THE AIRCRAFT OR ANY PART THEREOF OR THE CONDITION AND THE COMPLETENESS OF THE RECORDS FOR THE AIRCRAFT, AND LESSEE HEREBY WAIVES AND DISCLAIMS RELIANCE UPON ANY SUCH
REPRESENTATIONS AND WARRANTIES. | 2178 |
agreement_8.md | 2.4 Redelivery Condition. Upon the expiration of the Term, Lessee will return the
Aircraft to Lessor in as good condition as when delivered, ordinary wear and tear excepted, and clean and ready for flight and with the same equipment, components and systems as at the commencement of this Agreement, subject to the modification or
addition, removal or replacement of such equipment, components and systems to maintain the Aircraft in a fully functional and operating manner in accordance with commercially reasonable standards of the airline industry (as further set forth in
Section 4.3 below) and any changes to current guidelines established by the relevant manufacturers and/or the FAA, subject to Lessee’s right to terminate this Lease pursuant to Section 4.3(ii) or (iii) below and not bear the
expenses in excess of the 110% expense amount pursuant to Section 4.3(ii) below.
Section 3: PAYMENTS | 2179 |
agreement_8.md | Section 3: PAYMENTS
3.1 Rent. Subject to Section 4.3(ii) and (iii) below, this Agreement is intended to be a net lease to Lessor whereby all
expenses related to the ownership, maintenance (whether mandatory or recommended) and operation of the Aircraft during the Term shall be borne by and passed through to Lessee, including but not limited to those set forth in Sections 4, 5 and 7
herein (collectively, the “Costs”). To the extent possible, Lessee shall arrange to have all Costs billed directly to Lessee. In the event Lessor receives any invoices or bills directly relating to the Costs, Lessor shall promptly
forward any such invoices or bills to Lessee and Lessee shall pay all invoices or bills by the later of the date on which the Costs are due or fifteen (15) days from receipt by Lessee of the invoice or bill from Lessor. In the event Lessor is
required to pay any Costs directly, Lessor shall invoice Lessee (accompanied with reasonably acceptable supporting information, e.g. paid receipt, invoice) and Lessee shall, subject to Section 4.3(ii) and (iii) below, reimburse Lessor for
such amounts within fifteen (15) days from the date of such invoice. In the event that the Aircraft is redelivered to Lessor after the expiration of the Term, Lessee shall pay to Lessor an additional charge of US$500 and continue to pay the
Aircraft expenses required to be paid by Lessee under the Agreement for each day that the return of the
2 | 2180 |
agreement_8.md | Aircraft is overdue (“Supplemental Rent”), provided, however, that no Supplemental Rent or applicable Aircraft expenses shall be owing and due for any period during which
the Aircraft is undergoing maintenance that is the responsibility of Lessee hereunder, as long as such maintenance which is the responsibility of Lessee is not overdue and is paid for by Lessee. Supplemental Rent, if any, shall be paid by Lessee to
Lessor within fifteen (15) days of receipt of an invoice from Lessor for such charges.
Section 4: USE AND OPERATION OF THE
AIRCRAFT; FLIGHT CREWS
4.1 Use of the Aircraft. During the Term, Lessee shall be responsible for all fuel, inspection,
servicing, storage, operational and flight crew costs relating to the operation of the Aircraft. Lessee agrees that during the term of this Agreement the Lessee (or an affiliate thereof) shall cause the Aircraft to be stored in a hangar whenever the
Aircraft is located at Westchester County Airport, Stewart International Airport or such other airport or hangar facility as Lessee shall deem at any time during the term of this Agreement to be the primary storage location for the Aircraft. Lessee
shall use commercially reasonable efforts to cause the Aircraft to be stored in a hangar facility when not in operation if the Aircraft will be parked in the same location (other than the primary storage location for the Aircraft) for more than
seven (7) consecutive days or in the event of inclement weather that includes a form of frozen precipitation. The cost of storing the Aircraft in a hangar facility at Westchester County Airport or Stewart International Airport or any other
hangar facility shall be at Lessee’s expense. | 2181 |
agreement_8.md | 4.2 Operation. During the Term of this Agreement, Lessee shall
exercise exclusive operational control over the Aircraft. Lessee hereby covenants with Lessor that from delivery of the Aircraft to Lessee until redelivery to Lessor, the Aircraft shall be operated at all times in accordance with all applicable
Federal Aviation Regulations (“FARs”) as issued by the Federal Aviation Administration (“FAA”) and that Lessee shall not cause or permit the Aircraft to be operated in any manner contrary to any recommendation of
the manufacturer of the Aircraft nor in any manner that would violate the terms of the insurance coverage required to be provided under Section 5 hereunder or for any purpose contrary to applicable law. Lessee shall keep or cause to be kept
accurate, complete and current records of all flights made by the Aircraft; such records to be kept in such manner as the FAA may from time to time require. Lessee shall not do or permit to be done any act or thing which might jeopardize the rights
of the Lessor as owner of the Aircraft. Lessee shall not sublease, charter, hire or otherwise part with possession of the Aircraft. Lessee shall accommodate the request of Lessor to exhibit the Aircraft to potential purchasers as long as the
exhibition of the Aircraft occurs during normal business hours, provided that Lessor shall have given Lessee reasonable prior notice of any such request. Except as provided in the preceding sentence, Lessor warrants that, so long as Lessee is not in
default under this Agreement, Lessee’s use of the Aircraft shall not be interrupted by Lessor. | 2182 |
agreement_8.md | 4.3 Maintenance.
(i) Subject to Section 4.3(ii) below, during the Term of this Agreement, the Aircraft shall be serviced, repaired and maintained at Lessee’s sole cost and expense so as to keep the Aircraft airworthy and in as good an operating
condition as when delivered to Lessee hereunder, ordinary wear and tear excepted, as follows:
(a) Calendar-Based
Maintenance. Lessee shall be responsible for all maintenance items that become due on a calendar basis in accordance with the FAA-approved Gulfstream-recommended maintenance program for the Aircraft;
3 | 2183 |
agreement_8.md | (b) Usage-Based Maintenance. Lessee shall be responsible for all maintenance items
that are required to be made as a result of Lessee’s usage (hours or cycles) of the Aircraft under this Agreement in accordance with the FAA-approved Gulfstream-recommended maintenance program for the Aircraft;
(c) Transit Maintenance. Lessee shall be responsible for the performance of all transit maintenance of the Aircraft which shall
include a visual check of the aircraft exterior prior to all take-offs with particular attention to any fluid leaks, repair or replacement of worn or flat tires or low shock struts, rectification of any discrepancies noted in the aircraft logbook,
and the repair or deferral under the Minimum Equipment List for the Aircraft of all malfunctions affecting airworthiness.
(d)
Extraordinary Repairs. All extraordinary and unscheduled repairs and/or maintenance for the Aircraft shall be performed by Lessee at Lessee’s expense.
(ii) Notwithstanding anything in this Agreement to the contrary including, without limitation, the terms of Section 4.3(i) above, during the Term of this Agreement (x) the estimated amount of
annual ongoing maintenance, hangar, insurance and other expenses that Lessee shall be obligated to pay pursuant to this Agreement shall be $525,000, in the aggregate, per annum, and (y) the estimated amount of any other scheduled maintenance
expenses (such as expenses relating to painting the Aircraft and engine inspections) that Lessee shall be obligated to pay pursuant to this Agreement shall be $425,000, in the aggregate. If either of these actual amounts exceeds 110% of these
estimates, Lessee can either pay such amounts or terminate this Agreement in accordance with the redelivery conditions contained in Section 2 and shall be responsible for all such expenses (other than the amount of any expenses in excess of
such 110% expense amount) up to and through the date of redelivery. | 2184 |
agreement_8.md | (iii) Notwithstanding anything in this Agreement to the
contrary including, without limitation, the terms of Section 4.3(i) above, if during the Term of the Agreement extraordinary and/or unscheduled repairs and/or maintenance (not included in Section 4.3(ii) above) for the Aircraft become
necessary and the estimated cost of such extraordinary and/or unscheduled repairs and/or maintenance is, in the aggregate (including the cost of all previous extraordinary and/or unscheduled repairs and/or maintenance incurred by Lessee hereunder),
in excess of $225,000 (excluding all expenses set forth in Subsection 4.3(ii) above), the Lessee shall have the right, upon delivery of a written notice to Lessor, to terminate this Agreement and upon such termination (x) Lessee shall not be
obligated to perform or pay for such extraordinary or unscheduled repair and/or maintenance and (y) Lessor shall refund to Lessee any amounts previously paid by Lessee to Lessor for the lease of the Aircraft for any period following the date of
such termination.
4.4 Flight Crews. Any and all flight crewmembers operating the Aircraft on behalf of the Lessee
shall hold commercial pilot licenses and shall possess current and valid first or second class medical certificates.
4 | 2185 |
agreement_8.md | 4.5 Inspection. During the Term of this Agreement, upon reasonable prior notice from
Lessor but in no event later than fifteen (15) business days after such notice (unless the Aircraft is scheduled to be outside of the United States during such period, in which event the Aircraft shall be available for inspection within 10 days
after returning to the United States), Lessor (and/or its representatives) shall have the right to inspect the Aircraft on two occasions, such inspections to be conducted during normal business hours at a mutually agreed upon location, coordinated
with Lessee so as to cause the minimum practical disturbance to Lessee’s operation of the Aircraft and conducted in compliance with Lessee’s occupational health and safety and security requirements. The requirements for reasonable notice
and coordination so as to cause the minimum practical disturbance shall not apply following the occurrence of a default by Lessee (as provided in Section 9.1 below) which is continuing. Notwithstanding the foregoing, the “two
occasion” limitation set forth above shall not apply in the event an inspection is required pursuant to any FAA reporting requirements.
Section 5: INSURANCE | 2186 |
agreement_8.md | Section 5: INSURANCE
5.1
Insurance. From delivery and at all times during the Term, Lessor shall, at Lessee’s sole cost and expense (subject to reimbursement as set forth in Subsection 3.1 above), procure and maintain (i) hull insurance (while in flight or
on the ground) against loss or damage to the Aircraft including but not limited to, loss by fire, theft, collision and such other risks of loss as are normally insured against, or as is customary in the industry, in an amount of no less than the
market value of the Aircraft as determined by the Aircraft Blue Book Price Digest at the inception of this Agreement or by a third party appraisal of the Aircraft by an appraiser reasonably acceptable to both Lessor and Lessee with the costs of such
appraisal for the account of Lessee; (ii) public liability insurance against losses or damages arising from death or bodily injury, or any property damage caused by or due to the operation of the Aircraft, such public liability insurance
(a) shall be for a combined limit of not less than US$500,000,000 per single occurrence and (b) shall name Lessee, Trian Fund Management, L.P., Nelson Peltz, Peter W. May and Edward P. Garden as additional insureds.
Section 6: INDEMNIFICATION | 2187 |
agreement_8.md | Section 6: INDEMNIFICATION
6.1 Indemnification by Lessee. Lessee agrees to defend, indemnify and hold harmless the Lessor from and against any and all claims,
proceedings, losses, liabilities, suits, judgments, costs, expenses, penalties or fines (individually and collectively hereinafter referred to as “Claims”) for or on account of or arising from or in any way connected with injury to or
death of any persons whomsoever or loss or damage to any property of any person (including the Aircraft), which may be suffered or incurred as a result of or in any way connected with the possession, performance, transportation, transit maintenance,
condition, service, repair, use or operation of the Aircraft (either in the air or on the ground) or any part thereof during the Term, other than Claims attributable to (i) the gross negligence or willful misconduct of the Lessor or (ii) a
breach of Lessor’s obligations hereunder. Lessee’s liability for any Claims hereunder and its indemnification obligations under this Section 6.1 shall be in its capacity as lessee and operator of the Aircraft only.
6.2 Indemnification by Lessor. Lessor agrees to defend, indemnify and hold harmless the Lessee from and against any and all Claims
for or on account of or arising from or in any way connected with injury to or death of any persons whomsoever or loss or damage to any property of any person (including the Aircraft), which may be suffered or incurred as a result of or in any way
connected with (i) the gross negligence or willful misconduct of the Lessor or (ii) a breach of Lessor’s obligations hereunder.
5 | 2188 |
agreement_8.md | 6.3 Survival. The provisions of Section 6 shall survive the expiration or
earlier termination of this Agreement and shall continue in full force and effect notwithstanding such expiration or termination.
Section 7: LIENS; TAXES
7.1 Liens. Lessee shall not create, nor permit to exist, any liens, security interests, mortgages, charges or other encumbrances
(“Liens”) upon or against the Aircraft other than (a) Liens created by or attributable to Lessor or any parts thereof or (b) Liens that arise and are discharged in the ordinary course of business (such as, without
limitation, mechanics’ liens for maintenance performed on the Aircraft). Nor shall Lessee do or permit to be done anything which may expose the Aircraft or any parts thereof to forfeiture, seizure, arrest, impounding, detention, confiscation,
taking in execution, attachment or appropriation.
7.2 Taxes. Lessee shall promptly pay and discharge when due and
payable all taxes, penalties and interest that are payable and due arising out of Lessee’s use of the Aircraft and shall indemnify and hold Lessor harmless against any and all sales, use, services, personal property, customs, business, fuel,
leasing, occupational, transfer, excise, franchise, ad valorem, turnover, stamp, documentary, gross receipts or other taxes, fees, withholdings, imposts, duties, levies, penalties, fines or interest thereon, imposed, levied or otherwise payable to
any national, state or local government, or any subdivision thereof, relating to or attributable to this Agreement (excluding, however, any franchise taxes attributable to Lessor or any taxes imposed on or measured by the net income or net profits
of the Lessor).
Section 8: CASUALTY OCCURRENCE | 2189 |
agreement_8.md | Section 8: CASUALTY OCCURRENCE
8.1 Definition of Total Loss. For the purposes of this Agreement, “Total Loss” shall mean
(i) the actual or constructive total loss of the Aircraft (including any damage thereto which results in an insurance settlement on the basis of a total loss, or requisition for use or hire thereof which results in an insurance settlement on
the basis of a total loss); (ii) the Aircraft being destroyed, damaged beyond repair, or permanently rendered unfit for normal use for any reason whatsoever; and (iii) the requisition of title, capture, seizure, confiscation, detention or
grounding of the Aircraft by the FAA or any other competent government authority for a period in excess of thirty (30) days, or the hi-jacking or theft of the Aircraft. In the case of a “Total Loss” resulting from the requisition of
title, capture, seizure, confiscation, detention or grounding of the Aircraft by the FAA or any other competent government authority for a period in excess of thirty (30) days, such “Total Loss” shall be deemed to have occurred on the
thirty-first (31st) day following the date of the
initial occurrence of such event. During the thirty (30) day period referred to in the preceding sentence Lessee shall not be obligated to pay any Costs pursuant to Section 3 above or perform or pay for any maintenance on the Aircraft
pursuant to Section 4 above. | 2190 |
agreement_8.md | 8.2 Total Loss During Term. If the Aircraft is the subject of a Total Loss during
the Term, this Agreement shall terminate as of the date of such Total Loss. Provided all amounts which are then due and payable by Lessee under this Agreement have been paid in full to Lessor, Lessee’s obligations hereunder for the payment of
charges under Sections 3 and 4 shall cease as from the date when the Aircraft was no longer available for use due to a Total Loss. Lessee shall be liable only for such charges under Sections 3 and 4 hereof as would apply to the use of the Aircraft
from the start of the Term to the date of the Total Loss.
6 | 2191 |
agreement_8.md | Section 9: DEFAULT
9.1 Default by Lessee. If Lessee shall (i) fail to pay or reimburse Lessor for any Cost when required to be paid or reimbursed hereunder and such payment or reimbursement, as applicable, is
not made within ten (10) days of such due date, (ii) fail to pay those costs relating to the operation of the Aircraft as are specified in Section 4 hereof, (iii) fail to maintain the Aircraft in accordance with Section 4 or
(vi) operate the Aircraft outside the scope of the insurance coverage required to be maintained with respect to the Aircraft pursuant to Section 5 hereof, Lessor may declare this Agreement to be in default and may exercise one or more of
the following remedies as Lessor in its sole discretion may elect, to the extent available and permitted by, and subject to compliance with any mandatory requirements of applicable law then in effect: (i) demand that Lessee immediately return
the Aircraft and Lessee shall thereupon immediately return the Aircraft, in which event this Agreement shall terminate upon such return of the Aircraft; (ii) to the extent permitted by applicable law, enter upon the premises where all or any
part of the Aircraft is located and take immediate possession of, and remove, the same, in which event this Agreement shall terminate upon such return of the Aircraft; (iii) proceed by appropriate court action to enforce performance by Lessee
of the provisions of this Agreement and to recover damages for the breach thereof; and (iv) terminate this Agreement by written action and repossess the Aircraft. | 2192 |
agreement_8.md | 9.2 Default by Lessor. If Lessor shall (i) fail to provide or maintain insurance coverage for the Aircraft in accordance with Section 5, or (ii) fail to indemnify Lessee in
accordance with Section 6.2, Lessee may declare this Agreement to be in default and may exercise one or more of the following remedies as Lessee in its sole discretion may elect, to the extent available and permitted by, and subject to
compliance with any mandatory requirements of applicable law then in effect: (i) return the Aircraft to Lessor in which event this Agreement shall terminate upon such return of the Aircraft and Lessor shall refund to Lessee any amounts
previously paid by Lessee to Lessor for the lease of the Aircraft for any period following the date of such termination; and (ii) proceed by appropriate court action to enforce performance by Lessor of the provisions of this Agreement and to
recover damages for the breach thereof.
Section 10: MISCELLANEOUS
10.1 Governing Law. This Agreement shall be governed and construed in accordance with the law of the State of New York without
regard to any conflict of law rules thereof that might indicate the application of the laws of any other jurisdiction.
10.2
Notices and Communications. For the purposes of this Agreement, all notices and other communications hereunder shall be given by personal delivery, mail, or overnight delivery to the intended recipient at the address specified below:
| | | |
| --- | --- | --- |
| | (a) | If to Lessor: |
The Wendy’s
Company
One Dave Thomas Boulevard
Dublin, OH 43017
Attn: General Counsel
7 | 2193 |
agreement_8.md | | | | |
| --- | --- | --- |
| | (b) | If to Lessee: |
TASCO, LLC
280 Park Avenue, 41st Floor
New York, New York 10017
Attn: Chief Legal Officer
Such notice shall be effective upon receipt by the recipient (which receipt shall be deemed to take place upon (i) five (5) days after mailing
(by certified mail, return receipt requested) in the case of a first class letter, (ii) upon confirmed receipt in the case of a overnight delivery and (iii) upon signed receipt of a personal delivery), shall be in writing and shall be in
the English language.
10.3 Complete Agreement. This Agreement contains the entire agreement among the parties hereto
with respect to the subject matter hereof and supersedes all prior written or oral communications or agreements with respect thereto, including, without limitation, the Aircraft Time Sharing Agreement dated as of August 6, 2007, as amended, by
and between Triarc Companies, Inc. and Trian Fund Management, L.P. and the Original Lease Agreement.
10.4
Counterparts. This Agreement may be executed in any number of counterparts, each of which when executed shall be considered an original, and when taken together shall constitute but one and the same instrument, and either of the parties
hereto may execute this Agreement by signing such counterpart.
10.5 Third Party Beneficiaries. Lessor hereby
acknowledges and agrees that Trian Fund Management, L.P., Nelson Peltz, Peter W. May and Edward P. Garden shall be third party beneficiaries of, and shall have full right and power to enforce, the provisions of Sections 5 and 6.2 hereof as if they
were parties to this Agreement. | 2194 |
agreement_8.md | Section 11: REPRESENTATIONS AND WARRANTIES
(a) Representations and Warranties of Lessor. The Lessor represents and warrants that:
(i) Corporate Authority and Due Execution. Lessor has the requisite corporate power and authority to enter into this Agreement and
to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement by Lessor and the consumption of the transactions contemplated hereby have been duly and validly authorized by all necessary action. This
Agreement has been duly and validly executed and constitutes the valid and binding agreement of the Lessor, enforceable against it in accordance with its terms.
8 | 2195 |
agreement_8.md | (ii) No Violation; Consents. No consent or approval of, giving of notice to,
registration with, or taking of any other action in respect of or by, any third party, including without limitation, any lender or any federal, state or local governmental authority or agency (including, without limitation, the U.S. Department of
Transportation or the FAA) is required with respect to the execution, delivery and performance by Lessor of this Agreement or the consummation of any of the transactions contemplated hereby, or if any such approval, notice, registration or action is
required, it has been duly given or obtained, other than notification of the Agreement to the FAA, if required.
(b)
Representations and Warranties of the Lessee. The Lessee represents and warrants as follows:
(i) Authority and Due
Execution. Lessee has the requisite power and authority to enter into this Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement by Lessee and the consumption of the
transactions contemplated hereby have been duly and validly authorized by all necessary action. This Agreement has been duly and validly executed and constitutes the valid and binding agreement of the Lessee, enforceable against it in accordance
with its terms.
(ii) No Violation; Consents. No consent or approval of, giving of notice to, registration with, or
taking of any other action in respect of or by, any third party, including without limitation, any lender or any federal, state or local governmental authority or agency (including, without limitation, the U.S. Department of Transportation or the
FAA) is required with respect to the execution, delivery and performance by Lessee of this Agreement or the consummation of any of the transactions contemplated hereby, or if any such approval, notice, registration or action is required, it has been
duly given or obtained. | 2196 |
agreement_8.md | Section 12: TRUTH-IN-LEASING
Truth-in-Leasing Provision. LESSOR CERTIFIES THAT DURING THE TWELVE (12) MONTHS PRECEDING THE DATE OF THIS AGREEMENT, THE AIRCRAFT HAS BEEN MAINTAINED AND INSPECTED UNDER THE PROVISIONS OF
FEDERAL AVIATION REGULATIONS PART 91. LESSEE CERTIFIES THAT (i) AT ALL TIMES DURING THE TERM HEREOF, THE AIRCRAFT WILL BE MAINTAINED AND INSPECTED UNDER THE PROVISIONS OF FEDERAL AVIATION REGULATIONS PART 91, (ii) DURING THE TERM OF THIS
AGREEMENT, LESSEE, AND NOT LESSOR, SHALL BE RESPONSIBLE FOR THE OPERATIONAL CONTROL OF THE AIRCRAFT AND (iii) LESSEE UNDERSTANDS ITS RESPONSIBILITY FOR COMPLIANCE WITH RESPECT TO ALL APPLICABLE FEDERAL AVIATION REGULATIONS. THE PARTIES
UNDERSTAND THAT AN EXPLANATION OF THE FACTORS BEARING ON OPERATIONAL CONTROL OF THE AIRCRAFT AND PERTINENT FEDERAL AVIATION REGULATIONS CAN BE OBTAINED FROM THE NEAREST FAA FLIGHT STANDARDS DISTRICT OFFICE. LESSEE AGREES TO KEEP A COPY OF THIS
AGREEMENT IN THE AIRCRAFT AT ALL TIMES DURING THE TERM HEREOF.
9 | 2197 |
agreement_8.md | IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by
their duly authorized officers as of the day and year first above written.
| | | | | | | | | |
| --- | --- | --- | --- | --- | --- | --- | --- | --- |
| | | | | | | | | |
| THE WENDY’S COMPANY | | | | TASCO, LLC |
| | | | | |
| By: | | /s/ Susan M. Gordon | | | | By: | | /s/ Nelson Peltz |
| Name: | | Susan M. Gordon | | | | Name: | | Nelson Peltz |
| Title: | | Vice President – Legal Counsel | | | | Title: | | Chief Executive Officer |
| | | | | |
| By: | | /s/ Daniel T. Collins | | | | | | |
| Name: | | Daniel T. Collins | | | | | | |
| Title: | | SVP Treasurer and M&A | | | | | | | | 2198 |
agreement_8.md | Trian Fund Management, L.P. (“Trian”) absolutely and unconditionally guarantees to The
Wendy’s Company (the “Lessor”) the performance and observance of any and all of the obligations of TASCO, LLC (the “Lessee”) under the foregoing Agreement, including but not limited to the payment in full of all amounts due
from Lessee to Lessor under the Agreement. This Guarantee constitutes the direct, general and unconditional obligation of Trian, is irrevocable and with respect to the obligations of Lessee involving payment of amounts due to Lessor is a guarantee
of payment and not of collection.
| | | |
| --- | --- | --- |
| | | |
| TRIAN FUND MANAGEMENT, L.P. |
| By: Trian Fund Management GP, LLC its general partner |
| | |
| By: | | /s/ Nelson Peltz |
| Name: | | Nelson Peltz |
| Title: | | Member |
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