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agreement_2.md | \*\*SECTION 4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF LESSEE\*\*. In order
to induce Lessor to enter into this Lease, and to induce Lessor to participate
in the transactions contemplated in the Lease Documents, Lessee represents,
warrants and covenants to Lessor that:
4.1 \*\*Organization\*\*. Lessee is and will remain (a) duly organized, validly
existing and in good standing under the laws of the state of its organization
set forth on \_Schedule No. 2\_, (b) duly qualified to do business in each
jurisdiction in which the conduct of its business or the ownership or
operation of its assets requires such qualification and (c) a “citizen of the
United States” within the meaning of the Transportation Code. Lessee has the
necessary authority and power to transact the business in which it is engaged.
Lessee’s form of business organization, federal tax identification number,
state-issued organizational identification number (if any), chief executive
office and principal place of business address, are all as set forth on
\_Schedule No. 2\_. Lessee’s name as shown in the preamble of this Lease is its
exact legal name as shown on its current charter, by-laws, articles of
organization or operating agreement, as applicable.
| 4.2| \*\*Authority; Enforceability; Etc.\*\*
---|---|--- | 500 |
agreement_2.md | | 4.2| \*\*Authority; Enforceability; Etc.\*\*
---|---|---
(a) \_Authorized\_. Lessee’s execution and delivery of, and performance of its
obligations under and with respect to, each of the Transaction Documents to
which it is a party (including its leasing, possessing and operating the
Aircraft, and participating in the other transactions contemplated herein and
therein), (i) have been duly authorized by all necessary action on the part of
Lessee consistent with its form of organization, (ii) do not contravene or
constitute a default under any Applicable Law, any of Lessee’s Organizational
Documents, or any agreement, indenture, or other instrument to which Lessee is
a party or by which it may be bound, (iii) do not require the approval of or
notice to (A) any Governmental Authority, except for the filings and
registrations specified in the Closing Terms Addendum, all of which shall have
been duly effected, prior to or concurrently with Lessor’s purchasing the
Aircraft, and Lessee’s acceptance of the Aircraft under this Lease, or (B) any
other party (including any trustees or holders of indebtedness), and (iv) will
not result in the creation or imposition of any Lien (except Permitted Liens)
on any of the assets of Lessee other than the Lessor’s Interest created hereby
and by the other Lease Documents with respect to the Aircraft and the
Collateral. | 501 |
agreement_2.md | (b) \_Enforceable\_. Each of the Transaction Documents referenced in the Closing
Terms Addendum, has been duly authorized, executed and delivered by an
authorized representative of Lessee and each of the other Transaction Parties,
and constitutes the legal, valid and binding obligation of Lessee and each of
the other Transaction Parties thereto, enforceable against each of them in
accordance with the respective terms of such Transaction Documents, except as
such enforceability may be limited by applicable bankruptcy and insolvency
laws and the equitable discretion of any court of competent jurisdiction.
(c) \_Proceedings\_. There are no proceedings pending or, so far as the
officers, managers, or members of Lessee know, threatened against or affecting
Lessee or any of its property before any Governmental Authority that could
impair Lessor’s Interests in, to or with respect to the Aircraft, or any of
the Collateral, or that, if decided adversely, could materially affect the
financial condition or operations of Lessee or its ability to perform its
obligations under the Transaction Documents. | 502 |
agreement_2.md | (d) Financial Statements. All financial statements of Lessee, copies of which
have been heretofore delivered to Lessor, are complete and correct, have been
prepared in accordance with GAAP and present fairly the financial position of
Lessee as at the date thereof and the results of its operations for the period
ended on said date and there has been no material adverse change in the
financial condition, business or operations of Lessee since the date thereof.
Lessee has filed all Federal, state and local income tax returns that are
required to be filed and has paid all taxes as shown on said returns and all
assessments received by it to the extent that such taxes and assessments have
become due, and Lessee does not have any knowledge of any actual or proposed
deficiency or additional assessment in connection therewith.
| 2
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(Aircraft Lease MSN 42000181)
4.3 \*\*Acceptance; Title, Etc.\*\* Without limiting the foregoing, upon Lessor’s
purchasing the Aircraft, and Lessee’s acceptance of the Aircraft under this
Lease on the Acceptance Date:
(a) \_Conditions Satisfied\_. Lessee has satisfied or complied with all
applicable conditions precedent as set forth in the Lease Documents; and no
Default or Event of Default has occurred and is continuing. | 503 |
agreement_2.md | (b) \_Acceptance\_. The Aircraft has been delivered to Lessee, is in Lessee’s
possession, has been inspected by Lessee to its complete satisfaction and is,
as of the Acceptance Date, unconditionally, irrevocably and fully accepted by
Lessee. Without limiting the foregoing, (i) the Aircraft has been found to be
in good working order, repair and condition and fully equipped to operate for
its intended purpose, is in conformity with the requirements of the Purchase
Agreement and the Applicable Standards (other than with respect to any
immaterial deficiencies noted on any delivery documents which do not impact
the use, operation or value of the Aircraft in any material respect), is
currently certified under all existing FARs and any other Applicable Laws, and
is airworthy in all respects; (ii) solely as between Lessor and Lessee (and
without prejudicing Lessee’s rights against Supplier or any other third party,
which rights are not being disclaimed hereby) Lessee has no pending claims and
has no current knowledge of any facts upon which a future claim may be based,
against any prior owner, Manufacturer or Supplier or any other supplier of the
Aircraft or any of the Collateral, for breach of warranty or otherwise; (iii)
Lessee has furnished no equipment for the Aircraft other than as stated on
\_Schedule No. 1\_, or permitted as an Addition pursuant to this Lease; and
(iv) all of the information contained in \_Schedules No. 1 and No. 2\_,
including the registration number of the Aircraft, and each of the serial
numbers, manufacturer and model numbers of the Airframe and Engines are true
and accurate. | 504 |
agreement_2.md | (c) \_Lessor’s Interest\_. (i)(A) Lessee has caused Lessor to have good and
marketable title to the Aircraft, and Lessee has good and marketable title to
all Collateral, in each case, free and clear of Liens, except Permitted Liens;
and (B) the Lessor’s Interest therein is and shall remain validly created and
perfected, and has and shall continue to have first priority over any other
Liens (other than Lessor’s Liens) pursuant to all Applicable Laws; and (ii)
all filings, recordings, registrations or other actions necessary or desirable
in order to cause Lessor to have good title to the Aircraft, and establish,
perfect and give first priority to Lessor’s Interest and other rights and
interests in, against or with respect to the Aircraft and any Collateral, have
been duly effected, and all Impositions in connection therewith have been duly
paid. | 505 |
agreement_2.md | (d) \_Cape Town Convention\_. For the purposes of the Cape Town Convention and
any other Applicable Law: (i) upon the acceptance of the Aircraft by Lessee
under this Lease, and Lessee’s grants and assignments contemplated in the
Lease Documents or other Transaction Documents, Lessee shall be situated in,
and will have caused the Aircraft to be duly registered in Lessor’s name in,
the United States (which is a contracting state); (ii) with respect to any of
the Transaction Documents relating to the Airframe or any Engine, each of the
respective parties thereto has power to dispose of the Airframe and Engines,
as contemplated therein by way of the relevant Transaction Document; and (iii)
the Purchase Documents qualify as a “contract of sale”, and the Lease
Documents are effective to constitute international interests in the Airframe
and any Engine and security assignments of the related associated rights and
transfer of the related international interests, as contemplated therein, and
each such Registerable Interest will be effective against third parties upon
registration at the International Registry, without any further filings or
registrations (except as contemplated in the Lease Documents).
4.4 \*\*Liquidity Account\*\*. Without limiting the foregoing, upon Lessor’s
purchasing the Aircraft, and Lessee’s acceptance of the Aircraft under this
Lease on the Acceptance Date:
(a) Lessee shall at all times cause an amount not less than the Liquidity
Amount to be deposited in the Liquidity Account. | 506 |
agreement_2.md | (a) Lessee shall at all times cause an amount not less than the Liquidity
Amount to be deposited in the Liquidity Account.
(b) Lessee assigns and pledges to Lessor, and grants Lessor a security
interest in, all of Lessee’s right, title and interest in and to the Liquidity
Account and all amounts held therein and all of Lessee’s rights thereto as
additional security for all of Lessee’s obligations hereunder and under the
other Lease Documents. Upon the request of Lessor, Lessee shall take all
action reasonably necessary to protect and preserve such security interests in
favor of Lessor. Lessee shall execute and deliver to Lessor any instrument
Lessor shall reasonably request to further evidence the creation of or to
perfect such pledge and security interest.
| 3
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(Aircraft Lease MSN 42000181)
(c) No amounts on deposit in the Maintenance Reserve Account shall be credited
toward Lessee’s obligations under this Section.
(d) If the Liquidity Account shall contain an amount less than the Liquidity
Amount, it shall not be an Event of Default hereunder if Lessee shall cause
the amount of any such shortfall to be deposited in the Liquidity Account
within thirty (30) days of receipt of notice of such deficiency from Lessor;
\_provided\_ , that Lessee shall not have a right to cure any such deficiency on
more than two (2) occasions during any twelve-month (12-month) period.
4.5 \*\*Operating Accounts\*\*. Lessee and Guarantors shall hold all operating
accounts with Lessor or its subsidiaries or affiliates (other than accounts
related to capital account transactions, i.e., proceeds from Reg A+ offerings,
or accounts relating to credit cards). | 507 |
agreement_2.md | \*\*SECTION 5. COMPLIANCE, USE AND MAINTENANCE\*\*. | 508 |
agreement_2.md | 5.1 \*\*Compliance; Organizational Issues\*\*. On the Acceptance Date, and at all
times thereafter until the Aircraft is returned to Lessor pursuant to this
Lease, Lessee agrees that it shall fully and timely perform and comply with,
or shall cause to be so fully and timely performed, all of the following: (a)
Lessee shall (i) duly observe and conform to all requirements of Applicable
Law relating to the conduct of its business or the Aircraft, (ii) obtain and
keep in full force and effect all rights, franchises, licenses and permits,
and all approvals by any Governmental Authority, in each case, required with
respect to Lessee’s performance of its obligations under the Transaction
Documents, the operation of the Aircraft or the proper conduct of Lessee’s
business, (iii) cause the Aircraft to be and duly registered in Lessor’s name
under the Transportation Code (including, by making all necessary reports, and
complying with any and all related re-registration and renewal requirements,
and taking all other actions required by Applicable Law), and (iv) pay and
perform all of its obligations and liabilities when due. (b) Lessee shall not
change its presently existing legal name or its form or jurisdiction of
organization without Lessor’s prior written consent, or its mailing, chief
executive office and/or principal place of business address without giving
Lessor thirty (30) days’ prior written notice of the same. If Lessee’s
presently existing organizational identification number changes, or if Lessee
currently has no such organizational number but is subsequently issued such a
number, Lessee shall immediately notify Lessor. (c) Lessee agrees to (i)
prominently display on the Aircraft the FAA Registration number, specified in
\_Schedule No. 1\_, or such other registration number as has been approved by | 509 |
agreement_2.md | \_Schedule No. 1\_, or such other registration number as has been approved by
and exclusively reserved to Lessor in its name and duly recorded with the
Applicable Authority; and (ii) notify Lessor in writing thirty (30) days prior
to making any material change in the appearance or coloring of the Aircraft;
provided that Lessor acknowledges and agrees that Lessee will paint the
Aircraft in its normal livery as in effect from time to time. (d) Lessee shall
remain a “citizen of the United States” within the meaning of the
Transportation Code. (e) Without limiting the generality of any other
provision hereof (including the disposition limitations in Section 5.7
hereof), Lessee hereby acknowledges and agrees that: (i) it shall cause Lessor
to have current information about the identity and whereabouts of the actual
operator of the Aircraft (whether Lessee or any other Person then having
possession and operational control; the “ \*\*Operator\*\* ”) and location and
nature of the operation of the Aircraft on an ongoing basis, for all purposes
required or contemplated by Applicable Law, including for the purposes of
obtaining Required Information from such Operator in an expeditious manner
responsive to any investigations or other inquiries by the FAA or any other
governmental authority (the “ \*\*Applicable Authority\*\* ”); (ii) as and when
requested by an Applicable Authority, Lessor may permit, and Lessee shall or
shall cause such other Operator to permit, the inspection of the Aircraft
(including any Records) by such Applicable Authority; and (iii) any Permitted
Third Party Agreement or other arrangement by Lessee or any Person claiming by
through or under Lessee (each, a “ \*\*Transferor\*\* ”) transferring rights to | 510 |
agreement_2.md | through or under Lessee (each, a “ \*\*Transferor\*\* ”) transferring rights to
possession or operational control of the Aircraft (each, a “ \*\*Transfer\*\* ”)
to a transferee or operator (each, a “ \*\*Transferee\*\* ”) shall, in addition to
the requirements of Section 5.7(b), include provisions requiring, among other
things: (A) that all further Transfers must be in writing; provide the
identity and contact information about the related Transferee; and such
Transferee’s assurance that if and when such Transferee is notified that
Lessor has made a request, to promptly provide all Required Information as and
when requested; (B) that each such Transferee (1) shall provide its reasonable
cooperation to Lessor and to the Applicable Authority in an expeditious manner
with respect to any request for Required Information, and (2) shall authorize
the Applicable Authority, upon its request, to inspect the Aircraft; and (C)
that such Transferee agrees that the requirements in sub-clauses (A) and (B)
would be made and agreed by any further Transferee in any further Transfer.
For the purposes hereof, “ \*\*Required Information\*\* ” shall mean information
from an Operator responsive to any investigations or other inquiries by an
Applicable Authority, including, if applicable, and as and when required by an
Applicable Authority, (A) information relating to the operation, maintenance,
location or base of operation of the Aircraft, including (1) information about
the Operator, crew (names and pilot certificate numbers) and operations on
specific dates; (2) information about where the Aircraft will be on a specific | 511 |
agreement_2.md | specific dates; (2) information about where the Aircraft will be on a specific
date in the future, but only to the extent required by Applicable Law, and (3)
maintenance and other Records; and (B) contact information of (1) the Operator
and (2) any other Person to whom the Applicable Authority may look to gather
such information); and Lessor may provide such information to the Applicable
Authority. | 512 |
agreement_2.md | | 4
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(Aircraft Lease MSN 42000181) | 513 |
agreement_2.md | 5.2 \*\*Operation, Etc.\*\* Lessee will cause the Aircraft to be operated in
compliance with Part 135 and any other applicable provision of the FARs, and
all other Applicable Standards, for purposes that are incidental to Lessee’s
business, and in a manner that is consistent with the transactions hereunder
being deemed commercial (and not consumer) transactions under Applicable Law.
Unless otherwise expressly permitted hereunder, (a) Lessee shall permit the
Aircraft to be operated solely for air taxi operations or otherwise under Part
135 of the FARs by a holder of a Part 135 Certificate reasonably acceptable to
Lessor; and (b) such holder of the Part 135 Certificate shall at all times
have, and maintain, “operational control” of the Aircraft (as such term is
then interpreted by the FAA or such other applicable Governmental Authority),
and no other Person shall operate the Aircraft. The Aircraft at all times will
be operated by duly qualified pilots having satisfied all requirements
established and specified by the FAA, the TSA and any other applicable
Governmental Authority and the Required Coverages. The Aircraft may be flown
temporarily to any country in the world, provided that the Aircraft (a) shall
at all times be based and predominantly used, operated and located in the
continental United States; and (b) shall not be flown, operated, used or
located in, to or over any such country or area (temporarily or otherwise) (i)
that is excluded from the Required Coverages (or specifically not covered by
such insurance), (ii) with which the United States does not maintain
diplomatic relations per https://www.state.gov/independent-states-in-the-
world/, (iii) if as a result, payment of any related claim under the Required
Coverages is likely to be prohibited under any trade or other economic | 514 |
agreement_2.md | Coverages is likely to be prohibited under any trade or other economic
sanction or embargo by the United States, (iv) in violation of any of the
Lease Documents or any Applicable Standards, (v) where, under the
circumstances, an operator would reasonably expect to encounter a material
risk of a confiscation, seizure or hostile action against, or incurrence of
Material Damage to, the Aircraft or (vi) in a manner that causes it to be
deemed to have been used or operated “predominantly” outside of the United
States, as that phrase is used in Section 168(g)(1)(A) of the Code. Lessee
shall adopt, implement and comply with all security measures required by any
Applicable Standards, or that are reasonably necessary for the proper
protection of the Aircraft (whether on the ground or in flight) against theft,
vandalism, hijacking, destruction, bombing, terrorism or similar acts. | 515 |
agreement_2.md | 5.3 \*\*Maintenance\*\*. Lessee agrees that, with respect to the Airframe, the
Engines and each Part, Lessee will, or Lessee will cause such other Person to,
at Lessee’s own expense, (a) maintain, inspect, service, repair, overhaul and
test the same in accordance with Applicable Standards, (b) make any
alterations or modifications that may at any time be required to comply with
Applicable Standards, and to cause the Aircraft to remain airworthy, (c)
furnish all required parts, replacements, mechanisms, devices and servicing so
that the condition and operating efficiency thereof will at all times be no
less than its condition and operating efficiency as and when delivered to
Lessee, ordinary wear and tear from proper use alone excepted, (d) promptly
replace all Parts (i) which become worn out, lost, stolen, taken, destroyed,
damaged beyond repair or permanently rendered or declared unfit for use for
any reason whatsoever, or (ii) if not previously replaced pursuant to clause
(i), as and when required by any Applicable Standards, including any
applicable life limits, (e) maintain (in English) all Records in accordance
with Applicable Standards, (f) enroll and maintain the Aircraft in a
Maintenance Program and the Engines in an Engine Maintenance Program, and, by
doing so, cause the applicable program provider on Lessee’s behalf to fully
and timely comply with the requirements of this Section 5.3 if and to the
extent such requirements are subsumed within such programs (except that,
irrespective as to whether such requirements are so subsumed within such
program or programs, Lessee shall remain primarily responsible for the full
and timely compliance with each such requirement). All maintenance procedures
shall be performed by properly trained, licensed, and certified maintenance | 516 |
agreement_2.md | and timely compliance with each such requirement). All maintenance procedures
shall be performed by properly trained, licensed, and certified maintenance
sources and personnel utilizing replacement parts approved by the FAA and the
manufacturer of (as applicable) the Airframe, the Engine or any Part. Without
limiting the foregoing, Lessee shall comply with all airworthiness directives
by causing compliance to such bulletins and directives to be completed, as and
when required thereby, through corrective modification in lieu of operating
manual restrictions. | 517 |
agreement_2.md | 5.4 \*\*Additions, Alterations, Etc\*\*. Lessee shall make, or shall cause to be
made, any improvement, change, addition, alteration or modification to the
Aircraft that may at any time during the Term be required to comply with
Sections 5.2 or 5.3 or any of the other provisions of this Lease or the other
Lease Documents (“ \*\*Required Alterations\*\* ”). Lessee may install on the
Aircraft any other additional accessory, device or equipment ( \_i.e.\_ ,
elective voluntary additions, which are neither required hereby, nor otherwise
required to render the Aircraft complete for its intended use by Lessee), but
only if the same (A) will not cause Lessee to be in breach of any of the other
provisions of this Lease or the other Lease Documents, (B) will not materially
impair the originally intended function or use or diminish the value, of the
Aircraft and (C) can be readily removed without causing material damage to the
Aircraft (“ \*\*Elective Additions\*\* ”). Without limiting the foregoing, (1)
Lessee shall repair all damage to the Aircraft resulting from the installation
of any Required Alterations, and the installation and removal of any and all
Elective Additions, in each such case, so as to restore the Aircraft to its
condition prior to installation, assuming that it was in the condition
required hereby, (2) all Required Alterations, and all other repairs, parts,
replacements, mechanisms and devices added by Lessee or on its behalf,
including (unless and until removed) all Elective Additions, shall
immediately, without further act, become part of the Aircraft and subject to
this Lease and the other Lease Documents (including Lessor’s Interest granted | 518 |
agreement_2.md | immediately, without further act, become part of the Aircraft and subject to
this Lease and the other Lease Documents (including Lessor’s Interest granted
or otherwise created hereby and thereby); and title thereto shall immediately
vest in Lessor, without any payment by, or any cost or expense to Lessor, and
(3) except as expressly permitted or required above, Lessee shall not make any
other improvement, change, addition, alteration or modification to the
Aircraft. | 519 |
agreement_2.md | | 5
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(Aircraft Lease MSN 42000181)
5.5 \*\*Loaner Engines\*\*. In the event any Engine is damaged, being inspected,
repaired or overhauled and provided no Default or Event of Default has
occurred and is continuing, Lessee, at its option, may temporarily substitute
another engine of the same make and model as the Engine being repaired or
overhauled (any such substitute engine being hereinafter referred to as a “
\*\*Loaner Engine\*\* ”) during the period of such repair or overhaul, and
provided further (a) installation of the Loaner Engine is performed by a
maintenance facility certified by the FAA and the manufacturer with respect to
an aircraft of this type, (b) the Loaner Engine is removed and the repaired or
overhauled original Engine is reinstalled on the Airframe promptly upon
completion of the repair or overhaul in accordance with the Engine Maintenance
Program, or, if not then in effect, no later than the earlier of ninety (90)
days after removal, or the expiration, cancellation or earlier termination of
this Lease, and (c) the Loaner Engine is free and clear of any Lien that might
impair Lessor’s rights or interests in the Aircraft and is maintained in
accordance herewith. | 520 |
agreement_2.md | 5.6 \*\*Aircraft Registration\*\*. Concurrently with its entering into this Lease,
and at all times thereafter, Lessee shall remain solely responsible to cause
the Aircraft to be effectively and otherwise validly registered in Lessor’s
name on the Registry, and the currently assigned U.S. registration number to
remain authorized for use by Lessor on the Aircraft, in each case, in
accordance with the Registration Requirements; and without limiting the
foregoing, or any other provision of this Lease, Lessee shall:
(a) cause a valid Registration Certificate to be maintained at all times
within the Aircraft and without limiting the foregoing Lessee shall (i) notify
Lessor immediately of any event or circumstance with respect to which the
Registration Requirements require further action by Lessor, and (ii) comply
with any and all of the Registration Requirements;
(b) with respect to any Defective Registration (and without waiving Lessee’s
responsibility to avoid such circumstance), the Aircraft shall not be operated
until authorized by the Registration Requirements, and Lessee shall (i) comply
with the FARs and other Applicable Laws relating to such Defective
Registration, and (ii) ground and store the Aircraft in accordance with terms
of this Lease; and
(c) fully and timely cooperate with Lessor; pay or reimburse the Lessor upon
its demand for all fees, charges, or other amounts payable or incurred in
connection with any of the foregoing, and take any and all of the other
actions contemplated herein, as and when required by the Registration
Requirements or as otherwise requested by Lessor, including with respect to
any Assignment or any other disposition contemplated in the Lease Documents. | 521 |
agreement_2.md | Lessor agrees to provide its reasonable cooperation to Lessee with respect to
Lessee’s compliance with the provisions of this Section 5.6; provided,
however, with respect to any such Defective Registration, in no event will
Lessor be deemed liable to any Lessee Party or any other Person as a result of
any Defective Registration, whether by reason of Lessor’s failure to
accurately complete or effectively file any such registration filing or
otherwise, and without regard as to whether the same constitutes a breach by
Lessor, Lessee or any other Person under this Lease or any other Lease
Document; and without limiting the foregoing, (i) Lessee shall remain
obligated to pay and perform all of its obligations in accordance with this
Lease and the other Lease Documents, and (ii) Lessee agrees that it shall pay,
indemnify, defend and hold each Indemnified Party harmless on an after-tax
basis from and against any and all Claims in any way relating to or arising
out of any Defective Registration, in accordance with the provisions of
Section 8 hereof.
| 5.7| \*\*No Disposition or Liens; and Exceptions\*\*.
---|---|--- | 522 |
agreement_2.md | (a) \_No Dispositions, Liens, Etc.\_ Except as permitted by this Lease, Lessee
shall not sell, assign, enter into any Third Party Agreement, convey,
mortgage, exchange or otherwise transfer or relinquish possession of
(including by any seizure or other taking by any foreign or domestic
Governmental Authority) or dispose of, or grant or otherwise create a Lien
(other than a Permitted Lien) against, the Airframe, or any Engine or Part,
related associated rights, international interests, prospective international
interests, or any proceeds, or any of the other Collateral, nor shall it
attempt, or suffer or permit, any of the foregoing. Lessee shall be permitted,
however, to enter into Permitted Third Party Agreements and to deliver
possession of the Airframe, or any Engine or Part to another Person for the
purpose of complying with any of the other provisions of this Section 5, in
each case, if and to the extent consistent with the provisions of the Lease
Documents. Lessee will warrant and defend Lessor’s Interest in and to the
Aircraft (including Lessor’s good and marketable title thereto) and any
Collateral, and the validity, perfection and first priority of Lessor’s
Interest in the Aircraft and any Collateral, against all other Liens, claims
and demands whatsoever, except Permitted Liens; and without limiting the
foregoing, Lessee will (a) not create, assume or suffer to exist any Liens on
or with respect to the Aircraft or any Collateral, or Lessee’s interest
therein (other than Permitted Liens); and (b) promptly take such action as
directed by Lessor to duly discharge any such unpermitted Liens.
| 6
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agreement_2.md | | 6
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(Aircraft Lease MSN 42000181)
(b) \_Exceptions\_. So long as no Default or Event of Default has occurred and
is continuing, Lessee may enter into and remain a party to Third Party
Agreements, in each such case, subject to the satisfaction of, and compliance
by Lessee and each Interested Third Party with, all of the following
throughout the term of such arrangement (any Third Party Agreement complying
with all of the provisions of this Section 5.7(b), a “ \*\*Permitted Third Party
Agreement\*\* ”):
(i) Each such Interested Third Party shall be and remain solvent, and (unless
an individual) a domestic organization; except that in no event shall any
person who owns a controlling interest in or otherwise controls such
Interested Third Party, or any passenger on the Aircraft, be (x) listed on the
Specially Designated Nationals and Blocked Person List maintained by the
Office of Foreign Assets Control, Department of the Treasury at
http://www.treasury.gov/resource- center/sanctions/SDN-List/Pages/default.aspx
(“ \*\*OFAC\*\* ”), Department of the Treasury, and/or any other similar lists
maintained by OFAC pursuant to any authorizing statute, Executive Order or
regulation or (y) a person designated under Section 1(b), (c) or (d) of
Executive Order No. 13224 (September 23, 2001) at
http://www.treasury.gov/resource-
center/sanctions/programs/documents/terror.pdf, or any related enabling
legislation or any similar Executive Orders. | 524 |
agreement_2.md | (ii) Any operation of the Aircraft pursuant to any such Third Party Agreement
shall be limited to operation complying with (1) Part 135 and any other
applicable provision of the FARs, and all other Applicable Standards, and (2)
the provisions hereof and of the other Lease Documents pertinent to the
operation of the Aircraft (whether by Lessee or any permitted Interested Third
Party).
(iii) The related Third Party Agreement shall (A) be and remain, subject and
subordinate to the Lessor’s Interest in and with respect to the Aircraft and
any Collateral, and under the Lease Documents (and such subordination shall be
expressly acknowledged therein), (B) not convey any Lien on, or other property
interest in or against the Airframe, the Engines or any Collateral, except for
a Permitted Lien (but, without giving effect to clause (a) of the definition
of such term), (C) not permit any further disposition of or unpermitted Lien
against the Aircraft or any Collateral by any of the Interested Third Parties
thereto or any other Person, or any change in registration or unpermitted
change in hangaring of the Aircraft, (D) not contain provisions that are
inconsistent with the provisions of any of the Lease Documents or cause Lessee
to breach any of its representations, warranties or agreements under any of
the Lease Documents, (E) be in conformity with all requirements of the FARs
and other Applicable Laws, and (F) otherwise conform to any Operating Consent
required by Lessor with respect thereto. | 525 |
agreement_2.md | (iv) Lessee shall have specified such Third Party Agreement in \_Schedule No.
2\_ if existing on the Acceptance Date, or if not then existing shall give
Lessor at least thirty (30) Business Days’ prior written notice of its
intention to enter into a Third Party Agreement with respect to which Lessee
shall be relinquishing possession or control of the Airframe or Engines.
(v) No later than the effective date thereof Lessee shall comply with, and at
all times thereafter remain in compliance with, any related requirements by
Lessor, including (A) entering into, and causing any related Interested Third
Parties to enter into, an Operating Consent, (B) causing Lessor to be covered
by the Required Coverages (which, for the purposes hereof, may include
insurance coverages obtained and maintained by an Interested Third Party,
conforming to the insurance requirements herein and in any of the other Lease
Documents), (C) entering into or delivering, or causing to be entered into and
delivered, all such other documents, filings and assurances, making or causing
to be made such filings and registrations, and taking or causing to be taken
all such other actions, in each case as may be required by Lessor (and unless
so directed by Lessor, neither make, nor permit to be made, any other filing
or registration with respect thereto), and (D) paying or reimbursing Lessor
for any related costs or expenses. Lessor shall have the right, but not the
obligation, to (A) require reasonable evidence that any Interested Third Party
satisfies the requirements provided herein, and (B) review any such Third
Party Agreement, as from time to time supplemented and amended, to determine
its conformity with the provisions hereof, but without assuming any
responsibility with respect thereto. | 526 |
agreement_2.md | (vi) Although certain of the duties and obligations of Lessee under the Lease
Documents may be performed by one or more of the Interested Third Parties, (A)
no such Permitted Third Party Agreement shall reduce any of Lessee’s
obligations, or any of Lessor’s rights, under any of the Lease Documents, (B)
all of Lessee’s obligations under the Lease Documents shall be and remain
primary and continue in full force and effect as the obligations of a
principal and not of a guarantor or surety, and (C) Lessor is not waiving the
right to require full and timely performance of any such obligations in strict
accordance with the provisions hereof and of the other Lease Documents. By way
of clarification and not limitation, with respect to any provisions of this
Lease or any of the other Lease Documents requiring Lessee to take or refrain
from taking an action relating to the Aircraft or any Collateral, such
provision may also be read to mean that Lessee shall cause the same to be done
in accordance therewith, if at that time the Aircraft or such Collateral is in
the possession or control of an Interested Third Party pursuant to a Permitted
Third Party Agreement.
| 7
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(Aircraft Lease MSN 42000181)
5.8 \*\*Return Requirements\*\*. Unless purchased by Lessee, upon the expiration,
cancellation, or other termination of this Lease, Lessee shall at its sole
expense return the Aircraft to Lessor in accordance with, and otherwise pay,
perform and comply with, all of the provisions of the Return Addendum (all of
which are hereby incorporated herein), in each case as and when required
hereby. | 527 |
agreement_2.md | | 5.9| \*\*Maintenance Reserve\*\*.
---|---|---
(a) Lessee shall at all times cause an amount not less than the Maintenance
Reserve Amount to be deposited in the Maintenance Reserve Account. To the
extent that the amount on deposit in the Maintenance Reserve Account shall be
less than the Maintenance Reserve Amount, Lessee shall deposit an amount equal
to such deficiency within 10 days following written notice of such deficiency
from Lessor.
(b) Lessee assigns and pledges to Lessor, and grants Lessor a security
interest in, all of Lessee’s right, title and interest in and to the
Maintenance Reserve Account and all amounts held therein and all of Lessee’s
rights thereto as additional security for all of Lessee’s obligations
hereunder and under the other Lease Documents. Upon the request of Lessor,
Lessee shall take all action reasonably necessary to protect and preserve such
security interests in favor of Lessor. Lessee shall execute and deliver to
Lessor any instrument Lessor shall reasonably request to further evidence the
creation of or to perfect such pledge and security interest. | 528 |
agreement_2.md | (c) If, at any time during the term of this Lease, Lessor reasonably
determines that the Aircraft is not being maintained in accordance with the
requirements of this Lease, or to prevent deterioration of the Aircraft,
Lessor may enter onto the property where the Aircraft is located after
reasonable notice during normal business hours and perform any and all work
and labor necessary to maintain the Aircraft and to employ watchmen to protect
the Aircraft from damage. Lessor is hereby authorized to disburse such sums
from the Maintenance Reserve Account for payment of all amounts incurred under
this subsection (c), including as a reimbursement to Lessor for amounts so
expended from Lessor’s own funds. Solely for this purpose Lessee constitutes
and appoints Lessor its true and lawful attorney-in-fact with full power of
substitution to undertake the maintenance of the Aircraft in the name of
Lessee. Lessee empowers said attorney-in-fact as follows: (i) to use any funds
in the Maintenance Reserve Fund for the purpose of making or completing the
maintenance of the Aircraft; (ii) to make such additions, changes and
corrections to the Aircraft as shall be necessary or desirable for the
maintenance of the Aircraft; (iii) to employ such contractors, subcontractors,
agents, architects and inspectors as shall be required for such purposes; (iv)
to pay, settle or compromise all existing bills and claims which are or may
become liens against the Aircraft, or as may be necessary or desirable for the
maintenance of the Aircraft, or for the clearance of title; (v) to execute all
applications and certificates in the name of Lessee which may be required by
any of the contract documents; (vi) to prosecute and defend all actions or
proceedings in connection with the maintenance of the Aircraft; and (vii) to | 529 |
agreement_2.md | proceedings in connection with the maintenance of the Aircraft; and (vii) to
do any and every act which Lessee might do in its own behalf to fulfill the
terms of this Lease in connection with the maintenance of the Aircraft. It is
further understood and agreed that this power of attorney, which shall be
deemed to be a power coupled with an interest, cannot be revoked. Lessee
specifically agrees that all power granted to Lessor under this Section may be
assigned to any successor or assign of Lessor. | 530 |
agreement_2.md | (d) Nothing in this Section shall make Lessor responsible for maintenance of
the Aircraft, require Lessor to expend funds in addition to the Maintenance
Reserve Amount for the maintenance of the Aircraft, obligate Lessor to proceed
with maintenance of the Aircraft, or obligate Lessor to demand from Lessee
additional sums for the maintenance of the Aircraft.
\*\*SECTION 6. LOSS OR DAMAGE\*\*.
6.1 \*\*Risk of Loss\*\*. As of the Acceptance Date, and at all times thereafter
unless and until the Aircraft is either purchased by Lessee or returned to
Lessor pursuant to the provisions of this Lease, Lessee shall bear the risk of
any Event of Loss or other loss, theft, confiscation, taking, unavailability,
damage or partial destruction of the Aircraft, and shall not be released from
its obligations hereunder in the event of any damage or Event of Loss to the
Aircraft or any part thereof. With respect to any repairable damage to the
Aircraft, Lessee shall: (a) repair the same in accordance with all of the
applicable provisions of this Lease (including as provided in Section 5.3);
and (b) provide written notice to Lessor thereof if constituting Material
Damage either concurrently with its report of same to the applicable
Governmental Authority, or (if no such report is required) within ten (10)
days of the occurrence of such damage; and together with any damage reports
provided to the FAA or any other Governmental Authority, the insurer or
Supplier, and any documents pertaining to the repair of such damage, including
copies of work orders, and all invoices for related charges. | 531 |
agreement_2.md | 6.2 \*\*Loss of Aircraft\*\*. Upon the occurrence of any Event of Loss with
respect to the Airframe or the Aircraft, Lessee shall notify Lessor within
five (5) days of the date thereof. On the Casualty Payment Date, Lessee shall
pay to Lessor any Rent then due, plus the Casualty Value of the Aircraft
determined as of such Casualty Payment Date, together with interest at the
Late Payment Rate for the period (if any) from the Casualty Payment Date
through the date of payment. Upon making the applicable payment required
hereby, Lessee’s obligation to pay further Basic Rent for the Aircraft
subsequent to such payment shall cease, but Lessee shall remain liable for,
and pay as and when due, all Supplemental Rent.
| 8
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(Aircraft Lease MSN 42000181) | 532 |
agreement_2.md | 6.3 \*\*Loss of an Engine\*\*. Upon an Event of Loss with respect to any Engine
(as applicable, a \*\*“Lost Item”\*\* ), but not the Airframe, Lessee shall give
Lessor prompt written notice thereof, and within thirty (30) days after the
occurrence of such Event of Loss replace such Lost Item with a Permitted
Replacement by complying with the provisions of this Section 6.3. Any engine
or auxiliary power unit constituting a “ \*\*Permitted Replacement\*\* ” for a
Lost Item shall (i) be of the same make and model number as the Lost Item,
(ii) be free and clear of all Liens and (iii) have a value, utility and useful
life at least equal to, and be in as good an operating condition as, the Lost
Item, assuming such Lost Item was in the condition and repair required by the
terms hereof immediately prior to the occurrence of such Event of Loss.
Lessee, at its own cost and expense, shall (i) furnish Lessor with such
documents to evidence such replacement, (ii) cause Lessor to have good and
marketable title to the Permitted Replacement, and subject to the Lessor’s
Interest under this Lease, and (iii) take such other actions as may be
required by Lessor to cause the Lessor’s Interest in such Permitted
Replacement to be validly created and have first priority, including as
evidenced on the FAA Registry, the International Registry, and any other
recording office. Each such Permitted Replacement shall, after such
conveyance, be deemed an “Engine” and shall be deemed part of the same
Aircraft as was the Lost Item replaced thereby. Upon full compliance by Lessee
with the terms of this paragraph, Lessor will transfer to Lessee all of | 533 |
agreement_2.md | with the terms of this paragraph, Lessor will transfer to Lessee all of
Lessor’s right, title and interest, if any, in and to such Lost Item, which
transfer shall be “AS-IS, WHERE-IS”. | 534 |
agreement_2.md | 6.4 \*\*Credit for Loss Payments\*\*. If Lessor receives a payment under any of
the Required Coverages, or from a Manufacturer or Governmental Authority, in
connection with an Event of Loss of an Airframe or an Engine, and such payment
is both unconditional and indefeasible, then provided no Default or Event of
Default shall have occurred and be continuing, and Lessee shall have complied
with the provisions of Sections 6.2 or 6.3, as applicable, Lessor shall either
(a) remit such proceeds to Lessee up to an amount equal to (i) the amount paid
by Lessee to Lessor as the Casualty Value pursuant to Section 6.2, or (ii) the
amount of the replacement costs actually incurred by Lessee with respect to
any Permitted Replacement pursuant to Section 6.3, or (b) credit such proceeds
against any amounts owed by Lessee pursuant to Section 6.2. Any excess
insurance proceeds shall be retained by Lessor. If recoverable, Lessor shall
be entitled to recover possession of the Aircraft and to any salvage value in
excess of the Casualty Value paid to Lessor, but subject to the requirements
of any third party insurance carrier in order to settle an insurance claim.
Lessor shall not be under any duty to Lessee to pursue any claim against any
Person in connection with an Event of Loss, but Lessee may do so at its own
cost and expense and with Lessor’s prior written consent.
\*\*SECTION 7\. INSURANCE\*\*.
7.1 \*\* Insured Risks\*\*. Lessee agrees to maintain at all times, at its sole
cost and expense, with insurers having an A.M. Best or comparable agency
rating of not less than “A-”: | 535 |
agreement_2.md | (a) (i) comprehensive aircraft liability insurance against third-party bodily
injury or property damage claims including, contractual liability, premises
liability, death and property damage liability, public and passenger legal
liability coverage, and sudden accident pollution coverage, in an amount not
less than $100,000,000.00 for each single occurrence, and
(ii) personal injury liability in an amount not less than $25,000,000.00; but,
in no event shall the amounts of coverage required by sub-clauses (i) and (ii)
be less than the coverage amounts as may then be required by Applicable Law;
(b) “all-risk” ground, taxiing, and flight hull insurance on an agreed-value
basis, covering the Aircraft, provided that such insurance shall at all times
be in an amount not less than the greater of (i) the insured value of the
Aircraft (as determined by Lessor), or (ii) the Casualty Value of the Aircraft
(each such amount re-determined as of each anniversary of the date hereof for
the next succeeding year throughout the term of this Lease); and
(c) war risk and allied perils (including confiscation, appropriation,
expropriation, terrorism and hijacking insurance) in the amounts required in
paragraphs (a) and (b), as applicable. | 536 |
agreement_2.md | 7.2 \*\*Policy Terms\*\*. Any policies of insurance carried in accordance with
this Section 7 and any policies taken out in substitution or replacement of
any such policies shall (a) be endorsed to name Lessor as an additional
insured as its interests may appear (but without responsibility for premiums),
(b) provide, with respect to insurance carried in accordance with Section
7.1(b) or (c) above, that any amount payable thereunder shall be paid directly
to Lessor as sole loss payee and not to Lessor and Lessee jointly, (c) provide
for thirty (30) days’ (seven (7) days’ in the case of war, hijacking and
allied perils, and ten (10) days in the case of cancellation for non-payment
of premium) prior written notice by such insurer of cancellation, material
change, or non-renewal, but failure to do so shall impose no obligation or
liability of any kind upon the insurer, its agents or representatives, (d)
include a severability of interest clause providing that such policy shall
operate in the same manner as if there were a separate policy covering each
insured, but the inclusion of such additional interests shall not operate to
increase the insurer’s limit of liability, (e) waive any right of set-off
against Lessor, and any rights of subrogation against Lessor, (f) provide that
in respect of the interests of Lessor in such policies, that the insurance
shall not be invalidated by any action or inaction of any Lessee Party or any
other Person operating or in possession of the Aircraft, regardless of any
breach or violation of any warranties, declarations or conditions contained in
such policies by or binding upon Lessee or any other Person operating or in
possession of the Aircraft, and (g) be primary, not subject to any co- | 537 |
agreement_2.md | possession of the Aircraft, and (g) be primary, not subject to any co-
insurance clause and shall be without right of contribution from any other
insurance. | 538 |
agreement_2.md | | 9
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(Aircraft Lease MSN 42000181)
7.3 \*\*Additional Requirements\*\*. Lessee shall not self-insure (by deductible,
premium adjustment, or risk retention arrangement of any kind) with respect to
any of the risks required to be insured pursuant to this Section 7\. Lessee
agrees that it shall obtain and maintain such other insurance coverages, or
cause adjustments to be made to the scope, amount or other aspects of the
existing insurance coverages, promptly upon Lessor’s reasonable request, as
and when Lessor deems such additional insurance coverages or modifications to
be appropriate in light of any changes in Applicable Law, prudent industry
practices, the insurance market, any Lessee Party’s anticipated use of the
Aircraft or other pertinent circumstances. All of the coverages required
herein shall be in full force and effect worldwide throughout any geographical
areas to, in or over which the Aircraft is operated. All insurance proceeds
payable under the requisite policies shall be payable in U.S. Dollars. At
least ten (10) days prior to the policy expiration date for any Required
Coverages, Lessee shall furnish to Lessor an insurance certificate or other
evidence requested by Lessor of the renewal or replacement of any such
coverages complying with the terms hereof, for a twelve (12) month or greater
period commencing from and after such expiration date.
\*\*SECTION 8. GENERAL AND TAX INDEMNIFICATIONS\*\*. | 539 |
agreement_2.md | 8.1 \*\*General Indemnification\*\*. Lessee hereby further agrees, whether or not
the transactions contemplated by this Lease shall be consummated, to pay,
indemnify, and hold Lessor, Lessor’s agents, employees, officers, directors,
shareholders, subsidiaries, Affiliates and Assignees respective directors,
shareholders, members, officers, employees, agents, predecessors, attorneys-
in-fact, lawyers, successors and assigns (collectively, the “ \*\*Indemnified
Parties\*\* ”) harmless on an after-tax basis, from and against any and all
liabilities, obligations, losses, damages, penalties, claims, actions, suits,
demands, costs, expenses and disbursements of any kind and nature whatsoever
(each, a “ \*\*Claim\*\* ”), which may be imposed on, incurred by or asserted
against any Indemnified Party, whether or not such Indemnified Party shall
also be indemnified as to any such Claim by any other Person, in any way
relating to or arising out of (a) the Airframe, any Engine, any Parts or
Records or any Collateral, including (whether by or through Lessee, Supplier,
any Interested Third Party, or any other Person), the manufacture, inspection,
purchase, delivery, acceptance, rejection, ownership, lease, sublease,
management, pooling, interchange, time sharing, chartering, possession, use,
operation, maintenance, security, condition (whether prior to, upon or after
delivery or acceptance of any of the same), registration or re-registration,
sale, return, removal, repossession, storage or other disposition of any of
the same, or any accident in connection therewith, including Claims involving
or alleging environmental damage, criminal acts, hijacking, acts of terrorism | 540 |
agreement_2.md | the same, or any accident in connection therewith, including Claims involving
or alleging environmental damage, criminal acts, hijacking, acts of terrorism
or similar acts, product liability or strict or absolute liability in tort,
latent and other defects (whether or not discoverable) and for any other risk
or matter, including any of the same that result in injuries, death,
destruction, or other harm or loss to Persons or property, without regard as
to who may have operational control of the Aircraft from time to time or (b)
any of the Lease Documents, Third Party Agreements or other Transaction
Documents, or the performance, breach (including any Default or Event of
Default) or enforcement of any of the terms hereof or thereof, \_provided\_ ,
that Lessee shall have no obligation to indemnify an Indemnified Party with
respect to Claims directly arising from the gross negligence or willful
misconduct of such Indemnified Party (unless if imputed by Applicable Law). If
any Claim is made against any Indemnified Party, the party receiving notice or
otherwise becoming aware of such Claim shall promptly notify the other, but
the failure of the party having knowledge of a Claim to so notify the other
party shall not relieve Lessee of any obligation hereunder. | 541 |
agreement_2.md | 8.2 \*\* General Tax Indemnity\*\*. On the Closing Date, and at all times
thereafter (subject to the exceptions provided below):
(a) \_Tax Reporting\_. If permitted by Applicable Law, Lessee shall prepare and
file in its own name or on Lessor’s behalf, with all appropriate taxing
authorities all tax returns that are required to be filed and all
registrations, declarations, returns and other documentation with respect to
any personal property taxes (or any other taxes in the nature of or imposed in
lieu of property taxes) due or to become due with respect to the Aircraft or
any of the Collateral, or any part of either thereof; and if not so permitted
by Applicable Law, to promptly notify Lessor in writing and provide it with
all information required in order for Lessor to timely file any and all of the
same.
| 10
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(Aircraft Lease MSN 42000181) | 542 |
agreement_2.md | (b) Impositions. Lessee hereby further agrees, whether or not the
transactions contemplated by this Lease shall be consummated, to pay on or
before the due date, directly to the appropriate federal, state, local or
foreign taxing authority or other Governmental Authority (a “Taxing
Authority”) or, if such payment is not allowed under Applicable Law, directly
to (a) Lessor with sufficient prior notice and assistance in order for Lessor
to timely make payment before the due date), (i) all taxes as shown on said
returns and all taxes assessed, billed or otherwise payable with respect to
the Aircraft or any Collateral, any part of either thereof, or the
transactions contemplated by the Transaction Documents; (ii) all license
and/or registration or filing fees, assessments, governmental charges and
sales, use, property, excise, privilege, value added, withholding and other
taxes (including any related interest, charges or penalties) or other charges
or fees now or hereafter imposed by any Taxing Authority, on Lessor, Lessee,
any Lessee Party or any other Person in possession of the Aircraft or any
Collateral or any of either thereof, the Aircraft or any Collateral, or any
part of any thereof, the Rent (or other amounts payable under the Transaction
Documents), or the transactions contemplated by the Transaction Documents,
including any of the same imposed with respect to the landing, airport use,
manufacturing, ordering, shipment, inspection, purchase, acceptance,
rejection, ownership, delivery, installation, management, pooling,
interchange, time sharing, leasing (pursuant to this Lease, any sublease, or
otherwise), chartering, operation, possession, use, maintenance, repair,
condition, removal, registration, de-registration, abandonment, repossession, | 543 |
agreement_2.md | otherwise), chartering, operation, possession, use, maintenance, repair,
condition, removal, registration, de-registration, abandonment, repossession,
storage, sale, return, or other disposition of the Aircraft or any part of any
thereof, the Rent (or other amounts under the Transaction Documents) or any of
the Collateral or any part thereof, or any interest in any thereof; and (iii)
any penalties, charges, interest, fines, additions to tax or costs imposed
with respect to any items referred to in sub-clauses (i) and (ii); the items
referred to in sub-clauses (i), (ii), and (iii) above being referred to herein
collectively, as “ \*\*Impositions\*\* ”; except that “Impositions” shall
expressly exclude, and Lessee shall have no such obligation in respect of, any
of the same either (A) imposed against Lessor and imposed on or measured by
the net income, capital or net worth of Lessor by the jurisdiction in which
Lessor was incorporated or formed, or in which Lessor has its principal place
of business or (B) arising from the gross negligence or willful misconduct of
Lessor (unless imputed by Applicable Law). Lessee will indemnify Lessor from,
and defend and hold Lessor harmless, on an after-tax basis against, any and
all such Impositions. Any Impositions which are not paid when due and which
are paid by Lessor shall, at Lessor’s option, become immediately due from
Lessee to Lessor. | 544 |
agreement_2.md | (c) \_Notices, Payment, Etc\_. Lessor shall provide Lessee with
notice of any such Impositions for which Lessor intends to hold Lessee
responsible under this Section 8.2, provided that the failure to give such
notice shall not relieve Lessee of responsibility under this Section 8.2, and
upon such notice to Lessee, such Impositions shall become immediately due to
Lessor. Lessee shall promptly provide Lessor, at Lessee’s cost and expense,
with copies of all returns and documents for which it is responsible under
this Section 8.2, as well as receipts for payment of such Impositions. In
addition, the term “Lessor”, for purposes of this Section 8.2, shall include
Lessor’s agents, employees, officers, directors, shareholders, members,
subsidiaries, Affiliates, assigns, as well as any affiliated, consolidated,
unitary or combined group with which any thereof files a tax return.
8.3 \*\*Tax Loss Indemnity\*\*. Lessee shall indemnify Lessor upon the
occurrence of any Tax Loss as and to the extent provided in the Special Tax
Indemnity Rider (all of the provisions of which are hereby incorporated by
reference).
8.4 \*\*Survival\*\*. Lessee’s obligations under this Section 8 shall
survive any expiration, cancellation or other termination of this Lease.
\*\*SECTION 9\. EVENTS OF DEFAULT AND REMEDIES\*\*.
| 9.1| \*\*EVENTS OF DEFAULT\*\*. The term “ \*\*Event of Default\*\* ”, wherever
used herein, shall mean:
---|---|--- | 545 |
agreement_2.md | (a) \_Rental Failure\_. Any non-payment of, including any failure by
Lessee to pay, (i) any Basic Rent or Casualty Value, or other accelerated
amount, as and when due pursuant to this Lease or any of the other Lease
Documents (whether on a specified payment date, or by acceleration, upon
demand or otherwise), and such non-payment or other failure continues for a
period of ten (10) Business Days from and including such due date; or (ii) any
Supplemental Rent or any other amount as and when due pursuant to this Lease
or any of the other Lease Documents, excluding any amounts covered by clause
(i) (whether on a specified payment date, or by acceleration, upon demand or
otherwise) and such non-payment or other failure continues for a period of ten
(10) Business Days from and including the date of receipt of written notice of
a payment default from Lessor; or
(b) \_Affiliate Indebtedness Defaults\_. With respect to Lessee
Party and any of its affiliates, any default or an event of default (however
defined) shall have occurred under any loan or lease from, or guaranty or
other financing obligation to, Lessor or any of its affiliates, and in such
case the applicable grace period for curing such default or event of default
shall have expired; or
| 11
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(Aircraft Lease MSN 42000181) | 546 |
agreement_2.md | | 11
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(Aircraft Lease MSN 42000181)
(c) \_Other Indebtedness Defaults.\_ With respect to any Lessee
Party and any of its affiliates, any default or event of default (however
defined) shall have occurred under any other loan or lease from, or guaranty
or other financing obligation in excess of $50,000 to, any Person not
affiliated with Lessor, and in such case the applicable grace period for
curing such default or event of default shall have expired; or | 547 |
agreement_2.md | (d) \_Breaches of Insurance, Applicable Law, Disposition
Restrictions or Return Requirements.\_ (i) Any of the Required Coverages are
not kept in full force and effect, or a breach or violation shall exist with
respect to any provisions thereof; or the Aircraft is operated in a manner, at
a time or in or over or located at a place with respect to which such Required
Coverages shall not be in effect; (ii) Lessee shall fail to cause the Airframe
or the Engines to be used, operated, maintained or otherwise kept in a
condition so as to be in compliance with all Applicable Laws; (iii) any Lessee
Party shall fail to comply with any provision of any of the Lease Documents
restricting Liens and other dispositions relating to the Aircraft, any
Collateral, or the unpermitted assignment or delegation or any such Lessee
Party’s respective rights or obligations under any of the Transaction
Documents (including Section 5.6 hereof); (iv) any failure to cause the
Lessor’s Interest in the Aircraft or any Collateral to have been validly
created, or to have first priority, pursuant to Applicable Law; or (v) any
failure to return the Aircraft to Lessor on the date and in the manner
required by this Lease or any of the other Lease Documents; or
(e) \_Misrepresentations\_. Any representation or warranty made by
any Lessee Party to or in favor of Lessor herein or in any of the Transaction
Documents or in any related agreement, document or certificate shall prove to
have been incorrect, misleading, or inaccurate in any material respect when
made or given (or, if a continuing representation or warranty, at any time);
or | 548 |
agreement_2.md | (f) \_Insolvency\_. The commencement of any bankruptcy, insolvency,
receivership or similar proceeding by or against any Lessee Party or any of
its or their properties or business (unless, if involuntary, the proceeding is
dismissed within sixty (60) days of the filing thereof) or the rejection of
the Lease or any related Lease Document in any such proceeding; or
(g) \_Change of Control\_. Any Person (including as such term is
used in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended)
acquires, after the date of this Lease, the beneficial ownership, directly or
indirectly, of 30% or more of the voting power of the total outstanding stock
or other ownership interests of any Guarantor; or | 549 |
agreement_2.md | (h) \_Merger\_. Lessee or any Guarantor shall enter into any
transaction of merger or consolidation unless prior to the consummation of
such transaction, (1) Lessee or Guarantor, as applicable, obtains from Lessor
written confirmation that Lessor, after giving effect to the transaction, is
satisfied as to the surviving entities’ creditworthiness and conformance to
the other criteria then used by Lessor when approving similar transactions,
and (2) the surviving entity (A) is organized and existing under the laws of
the United States or any state thereof, and (B) if Lessee or Guarantor, as
applicable, shall not be the entity surviving such transaction, the surviving
entity executes and delivers to Lessor (i) an agreement satisfactory to Lessor
pursuant to which such entity assumes and agrees to be fully liable for all of
Lessee’s or Guarantor’s obligations under the Lease, and (ii) any and all
other documents, agreements, instruments, certificates, opinions and filings
reasonably requested by Lessor); or | 550 |
agreement_2.md | (i) \_Dissolution\_. (1) Any Lessee Party (A) ceases to do business
as a going concern, liquidates, dissolves or otherwise terminates its
existence (B) sells, transfers or otherwise disposes of all or substantially
all of its assets or property (whether in one transaction or a series of
transactions), or (2)(A) the death or judicial declaration of incompetence of
any Guarantor that is an individual or any other individual responsible, in
whole or in part, for payment or performance of the Obligations and a
substitute Guaranty from a Guarantor acceptable to Lessor in Lessor’s sole
discretion is not in place within thirty (30) days or (B) the conviction of,
or guilty plea by, any individual Guarantor (or any other individual
responsible, in whole or in part, for payment or performance of the
Obligations) with respect to any criminal act constituting a felony or (C) any
repudiation by any Lessee Party of its obligation for the payment or
performance of the Obligations, (iv) any allegation or judicial determination
that any of the Transaction Documents is unenforceable in any material respect
or (v) a Default (as defined in any Guaranty) shall occur; or
| (j)| \_Operating Consent\_. Any event or condition constituting a breach or
other default under any Operating
---|---|---
Consent; or
(k) \_Material Adverse Change\_. There is a material adverse change
in the business, operations or financial condition of any Lessee Party or in
its, or his or her ability to comply with the Lease Documents since the
Closing Date as determined by Lessor, in its sole discretion and in good
faith; or | 551 |
agreement_2.md | (l) \_Breach of Other Covenants\_. Any Lessee Party fails to perform
or observe any other covenant, condition or agreement to be performed or
observed by it under any Lease Document related to this Lease that is not
otherwise addressed in this Section 9.1, and such failure continues unremedied
for a period of 30 days after any such Lessee Party first becomes aware of
such failure (but such cure period shall not be applicable unless the breach
is curable by practical means within the cure period, or such cure period may
be extended for a period not to exceed 90 days if Lessee is diligently
pursuing a remedy).
| 12
|
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---
(Aircraft Lease MSN 42000181) | 552 |
agreement_2.md | 9.2 \*\*Remedies\*\*. If an Event of Default occurs, in addition to
all other rights and remedies granted to it in this Lease and in the other
Lease Documents, Lessor may exercise all rights and remedies of a lessor under
the UCC or as a creditor, chargee or security assignee under the Cape Town
Convention (including any and all remedies thereunder requiring agreement by
Lessee), or otherwise available to Lessor under any other Applicable Law.
Without limiting the generality of the foregoing, Lessee agrees that upon the
occurrence of an Event of Default, Lessor, without demand or notice of any
kind (except as specified below) to or upon Lessee or any other Person, in its
sole discretion, may exercise any one or more of the following remedies: (a)
proceed at law or in equity, to enforce specifically Lessee’s performance or
to recover damages; (b) declare this Lease in default, or cancel this Lease or
otherwise terminate Lessee’s rights, but not its obligations under this Lease
and the other Lease Documents (including Lessee’s right to use and possess the
Aircraft), and Lessee shall immediately return the Aircraft and any
Collateral, to Lessor in accordance with the terms hereof and thereof; (c) to
the extent permitted by Applicable Law, enter the premises where the Aircraft
is located and take immediate possession of and remove (or disable in place)
the Aircraft (or any Engines and any Parts then unattached to the Aircraft)
and any Collateral, by self-help, summary proceedings or otherwise without
liability or cost (including for storage or rent); (d) use Lessee’s premises
for storage as set forth in this Lease without liability; (e) preserve the
Airframe and Engines and any Collateral, and their respective value (but | 553 |
agreement_2.md | Airframe and Engines and any Collateral, and their respective value (but
without any obligation to do so), immobilize or keep idle the Airframe or any
Engine, manage, sell, re-lease or otherwise dispose of the Airframe, any
Engine or other property relating to the Aircraft, and any Collateral, whether
or not in Lessor’s possession, at public or private sale, with or without
notice to Lessee (except as required by Applicable Law, and in furtherance
thereof, Lessor agrees that it shall give Lessee no less than twenty (20)
working days’ prior notice of any proposed sale or lease of the Airframe or
any Engine, or any Collateral, which Lessee acknowledges as constituting
“reasonable prior notice” for the purposes of the Cape Town Convention), and
apply or retain the net proceeds of such disposition, with Lessee remaining
liable for any deficiency and with any excess being retained by Lessor; (f)
apply any deposit or other cash collateral, or collect and apply any proceeds
of the Collateral, at any time to reduce any amounts due to Lessor; (g) demand
and recover from Lessee the Liquidated Damages (as more particularly provided
in Section 9.3), and other Rent whenever the same shall be due; (h) terminate
any Third Party Agreement without regard as to the existence of any event of
default thereunder and recover, or cause Lessee to relinquish possession and
return the Aircraft, including the Engines and Parts, pursuant to this Section
9.2, or exercise any and all other remedies under any Operating Consent or, in
Lessee’s stead, to the extent provided for under, or otherwise available to
Lessee under such Third Party Agreement; (i) demand and obtain from any court
speedy relief pending final determination available at law (including, without | 554 |
agreement_2.md | speedy relief pending final determination available at law (including, without
limitation, possession, control, custody or immobilization of the Aircraft or
preservation of the Aircraft or its fair market value); and (j) exercise any
and all other remedies provided in Section 9.3, elsewhere in this Lease or in
any of the other Lease Documents. | 555 |
agreement_2.md | 9.3 \*\*Liquidated Damages.\*\* Without limiting the generality of the
provisions of Section 9.2: (a) Upon the occurrence of an Event of Default,
Lessor may, among other things, demand and recover from Lessee as liquidated
damages (the “ \*\*Liquidated Damages\*\* ”) an amount calculated as the Casualty
Value of the Aircraft (determined as of the next Basic Rent Date after the
date of the occurrence of the subject Event of Default), together with all
other Rent due hereunder as of such determination date, less a credit for any
disposition proceeds, if applicable, pursuant to the application provisions of
clause (b); except that, upon the commencement of any voluntary case under the
federal bankruptcy code concerning Lessee, or other voluntary act involving
Lessee of the type described in Section 9.2(e), Lessor’s right to demand and
recover the liquidated damages payable pursuant to this Section 9.3 shall be
automatically exercised, without any requirement of notice to Lessee or of any
other act or declaration by Lessor, and the liquidated damages described
therein shall be immediately due and payable. (b) If Lessor demands the
liquidated damages pursuant to clause (a), and recovers and sells the
Aircraft, any proceeds of such disposition by Lessor, to the extent received
by Lessor in good and indefeasible funds, shall be applied by Lessor, (i)
first, to pay all costs, charges and expenses, payable pursuant to Section
9.4, (ii) next, to pay to Lessor an amount equal to any unpaid Rent due and
payable to Lessor, together with the liquidated damage amounts specified
above, to the extent not previously paid, (iii) next, to pay to Lessor any | 556 |
agreement_2.md | above, to the extent not previously paid, (iii) next, to pay to Lessor any
interest accruing on the amounts covered by the preceding clauses, at the Late
Payment Rate, from and after the date the same become due and payable pursuant
to the terms hereof through the date of payment, (iv) next, to reimburse
Lessee for such amounts to the extent paid by Lessee as liquidated damages
pursuant hereto (up to the amount of the Casualty Value calculated as provided
above), and (v) any amount remaining thereafter shall be retained by Lessor as
owner of the Aircraft. (c) Lessee hereby acknowledges and agrees that: (i) the
liquidated damages payable pursuant to this Section 9.3, (iv) are to be paid
in lieu of future Basic Rent, (B) are (as of both the date hereof, and the
Acceptance Date) reasonable in light of the anticipated harm arising by reason
of an Event of Default, and (C) are not a penalty; (ii) the occurrence of any
one or more of the Events of Default shall be deemed, for all purposes, to
substantially impair the value to Lessor of the transactions contemplated
under the Lease Documents; (iii) in the event that, notwithstanding the intent
and express agreement of the parties, either the liquidated damages provision
in this Section 9.3 is deemed non-compliant with applicable law, or
circumstances cause it to fail of its essential purpose, Lessor may exercise
any of the other remedies provided herein, or available under UCC Article 2A
or other applicable law (including the right to demand and be paid any or all
of (A) all then accrued and unpaid Rent, (B) the present value of all then
unaccrued Basic Rent for the remaining Term, discounted at the Discount Rate, | 557 |
agreement_2.md | unaccrued Basic Rent for the remaining Term, discounted at the Discount Rate,
with an appropriate credit consistent with whether and how Lessor disposes of
the Aircraft, and (C) any incidental or consequential damages, less expenses
saved by Lessor in consequence of such Event of Default); and (iv) Lessor
shall have no obligation to make any of the remittances to or apply any
credits in favor of Lessee that are contemplated in this Section 9.3 if Lessor
has paid such amounts to any guarantor or other Person having a right of
subrogation with respect to such amounts, or such guarantor or other Person
has demanded the payment of such amount. | 558 |
agreement_2.md | | 13
|
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---
(Aircraft Lease MSN 42000181)
9.4 \*\*Costs, Etc\*\*. Lessee shall be liable for, and pay to Lessor
upon demand, all costs, charges and expenses incurred by Lessor in enforcing
or protecting its rights under this Lease or any other Lease Documents,
whether by reason of any Default or Event of Default, or otherwise, including,
(a) any expenses incurred by Lessor in connection with effecting performance
on Lessee’s behalf, together with interest thereon at the Late Payment Rate,
until repaid, and (b) any other legal fees, disbursements, insurance, expert
witness fees, consultant fees, repossession, Impositions, Lien removal,
recovery, storage, inspection, appraisal, repair, costs of transportation,
refurbishing, advertising and brokers’ fees, and other carrying costs and
costs of sale, re-lease or other disposition of the Aircraft or any
Collateral. | 559 |
agreement_2.md | 9.5 \*\*Acknowledgments, Waivers, Etc\*\*. Lessee hereby acknowledges
and agrees as follows: (a) None of the provisions of this Section 9, including
any remedies set forth or referenced herein, is “manifestly unreasonable” for
the purposes of the Cape Town Convention. (b) No right or remedy is exclusive,
and each may be used successively and cumulatively and in addition to any
other right or remedy referred to above or otherwise available to Lessor at
law or in equity, including, such rights and/or remedies as are provided for
in the Cape Town Convention or the UCC. (c) No express or implied waiver by
Lessor of any Default or Event of Default hereunder shall in any way be, or be
construed to be, a waiver of any future or subsequent Default or Event of
Default. (d) The failure or delay of Lessor in exercising any available rights
or remedies upon the occurrence of any event shall not constitute a waiver of
any such right or remedy upon the continuation or reoccurrence of any such
contingencies or similar contingencies, and any single or partial exercise of
any particular right by Lessor shall not exhaust the same or constitute a
waiver of any other right provided for or otherwise referred to herein. (e)
All remedies set forth herein shall survive the expiration, cancellation or
other termination of this Lease for any reason whatsoever. (f) It hereby
waives any rights under the UCC or the Cape Town Convention to cancel or
repudiate this Lease or any of the other Lease Documents, to reject or revoke
acceptance of the Aircraft or any component thereof, to suspend performance,
and to recover from Lessor any general, special, incidental or consequential
damages, for any reason whatsoever. | 560 |
agreement_2.md | 9.6 \*\*Power-of-Attorney\*\*. Lessee irrevocably appoints Lessor as
its attorney-in-fact to act in Lessee’s name and on its behalf to make,
execute, deliver and file any instruments or documents (including any filings
at the FAA), settle, adjust, receive payment, make claim or proof of loss,
endorse Lessee’s name on any checks, drafts or other instruments in payment of
any insurance claims and to take any action as Lessor deems necessary or
appropriate to carry out the intent of this Lease and the other Transaction
Documents; \_provided\_ , \_however\_ , Lessor agrees that it will not exercise
this power unless a Default or Event of Default has occurred and is
continuing. This appointment is coupled with an interest, is irrevocable and
shall terminate only upon payment in full of the obligations set forth in this
Lease or any other Lease Documents.
\*\*SECTION 10\. NOTICES, REPORTS, FURTHER ASSURANCES AND INSPECTIONS\*\*.
10.1 \*\*Notices\*\*. Lessee shall give prompt written notice to
Lessor of (a) the occurrence of any Default or Event of Default; (b) the
occurrence of any Event of Loss or event of which Lessee may be aware that
could become an Event of Loss; (c) the commencement or threat of any material
litigation or proceedings affecting Lessee or any material litigation or
proceedings affecting the Aircraft or any Collateral, or the ability of Lessee
to comply with its obligations under the Lease Documents; and (d) any dispute
between Lessee or any Interested Third Party and any Governmental Authority or
other party that involves Aircraft or any Collateral or that might materially
interfere with the normal business operations of Lessee. | 561 |
agreement_2.md | 10.2 \*\*Financial Information\*\*. Lessee shall furnish to Lessor: (a)
if requested by Lessor, within one hundred twenty (120) days of the close of
each fiscal year of Lessee beginning with December 31, 2021 \_,\_ Lessee’s
consolidated (and, if applicable, consolidating) balance sheet and statements
of shareholders’ equity, cash flows and operations as of the end of and for
such fiscal year all on a comparative basis with the prior fiscal year and
prepared in accordance with GAAP, certified by a recognized firm of certified
public accountants; (b) if requested by Lessor, within sixty (60) days of the
close of each quarter of Lessee beginning with December 31, 2021, Lessee’s
interim monthly consolidated (and, if applicable, consolidating), balance
sheet and statements of shareholders’ or member’s equity, cash flows and
operations as of the end of and for such fiscal month, all on a comparative
basis with the similar fiscal month of the previous year and prepared in
accordance with GAAP, certified by the chief financial officer of Lessee;
\_provided, however\_ , that Lessee shall be deemed to have complied with the
foregoing requirements in clauses (a) and (b) if such entity files Forms 10-K
and 10-Q with the Securities and Exchange Commission that are publicly
available within the time frames set forth above, and all such financial
statements (or Forms 10-Q and 10-K) shall fairly present financial condition
and the results of operations of the respective Person as of the date of and
for the period covered by such statements; promptly, as soon as available,
monthly bank statements reflecting Lessee’s cash position; and (d) promptly,
such additional financial and other information as Lessor may from time to | 562 |
agreement_2.md | monthly bank statements reflecting Lessee’s cash position; and (d) promptly,
such additional financial and other information as Lessor may from time to
time reasonably request; cause Guarantor to comply with the financial
reporting requirements set forth in the Guaranty and promptly furnish to
Lessor any such financial and other information regarding the Lessee or
Guarantor or any of its affiliates as Lessor may from time to time reasonably
request. | 563 |
agreement_2.md | | 14
|
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---
(Aircraft Lease MSN 42000181)
10.3 \*\*Further Assurances\*\*. Lessee shall, at its sole expense,
promptly execute and deliver to Lessor such further instruments, and it
authorizes Lessor to prepare and file, all UCC and FAA filings and other
documents, make, cause to be made and/or consent to all registrations
(including any discharges and subordinations, or as to the prospective or
actual sale of, and any international interest in, the Engines) with the
International Registry, and take such further action, as Lessor may from time
to time reasonably request in order to further carry out the intent and
purpose of the Lease Documents and to establish, protect and enforce the
rights, interests, remedies and Liens (including the first priority thereof)
created, or intended to be created, in favor of Lessor thereby. | 564 |
agreement_2.md | 10.4 \*\*Inspection\*\*. Once every twelve month period, Lessor shall
have the right, but not the duty, to inspect the Aircraft, any component
thereof and the Records, at any reasonable time and from time to time,
wherever located, upon not less than forty-eight (48) hours prior written
notice to Lessee; provided that such inspection shall not interfere with the
operations of the Aircraft; except that no advance notice shall be necessary
prior to any inspection conducted, and such inspection may be conducted at any
time, after the occurrence of a Default or an Event of Default. Upon request
of Lessor, Lessee promptly shall confirm to Lessor the location of the
Aircraft and the Records and shall, at any reasonable time and from time to
time, upon reasonable prior written notice to Lessee, make the Aircraft and
the Records available to Lessor for inspection. Lessee shall be responsible
for the cost of any inspection conducted after the occurrence of a Default or
an Event of Default, and shall pay Lessor such amount as additional Rent
within ten (10) days of demand. If Lessee enrolls the Aircraft in a
computerized maintenance program, Lessee shall provide Lessor full authorized
access to such computerized maintenance program during the Term and upon
return (which access may be “read-only”, but shall be provided at no cost to
Lessor).
\*\*SECTION 11\. MISCELLANEOUS\*\*. | 565 |
agreement_2.md | \*\*SECTION 11\. MISCELLANEOUS\*\*.
11.1 \*\*Construction and Related Matters\*\*. All representations and
warranties made in this Lease and in the other Transaction Documents shall
survive the execution and delivery of this Lease, and the purchase and lease
of the Aircraft pursuant to the Lease Documents. Without limiting any other
provision of this Lease regarding the survival of Lessee’s obligations
hereunder or under any of the other Lease Documents, Lessee’s obligation to
pay Supplemental Rent, and any of its other obligations under this Section 11,
shall survive the expiration, cancellation or other termination of this Lease.
The headings of the Sections hereof are for convenience only, are not part of
this Lease and shall not be deemed to affect the meaning or construction of
any of the provisions hereof. Time is of the essence in the payment and
performance of all of Lessee’s obligations under this Lease. Any provision of
this Lease that may be determined to be prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective in such
jurisdiction to the extent thereof without invalidating the remaining
provisions of this Lease, which shall remain in full force and effect.
11.2 \*\*Notices\*\*. All communications and notices provided for herein
shall be in writing and shall be deemed to have been duly given or made (i)
upon hand delivery, or (ii) upon delivery by an overnight delivery service, or
(iii) when sent by telecopy (with customary confirmation of receipt of such
telecopy) on the Business Day when sent or upon the next Business Day if sent
on other than a Business Day. | 566 |
agreement_2.md | 11.3 \*\*Granting Clause\*\*. In order to secure the prompt and full
payment and performance as and when due of any and all of the Obligations, now
existing or hereafter created of any kind whatsoever, including all of the
same under or relating to this Lease and the other Lease Documents (all of
which Lessee agrees it shall pay and perform in accordance herewith and
therewith), Lessee hereby grants, pledges and assigns to Lessor a first
priority security interest, collateral assignment, international interest, and
security assignment in, against, under and with respect to all of Lessee’s
right, title and interest in, to and under all of the following collateral,
whether now existing or hereafter acquired (collectively, the “Collateral”):
(i) (in the event that contrary to the intentions of the parties, a court
determines that this Lease is not a “true” lease under applicable commercial
law) the Aircraft, including the Airframe, the Engines and each of the Parts
and the Records; (ii) this Lease, and any and all other present and future
Transaction Documents, Third Party Agreements, or other present and future
agreements of any kind whatsoever relating to the Aircraft or any part
thereof; (iii) all rent, charter payments, reimbursements and other
disbursements, remittances or other amounts payable with respect thereto,
including all rent and other amounts constituting associated rights secured by
or associated with the Airframe and Engines, together with any related
international interests and prospective international interests; (iv) any
collateral described in the other Lease Documents (including in any Operating
Consent); and (v) all proceeds of the foregoing. Without limiting the
foregoing, with respect to the Lessor’s Interest (whether created pursuant to | 567 |
agreement_2.md | foregoing, with respect to the Lessor’s Interest (whether created pursuant to
the foregoing grant or otherwise), (A) Lessor shall have a validly registered
and first priority international interest in the Airframe and in each Engine,
(B) Lessee agrees that it shall perform and procure performance in accordance
with any Third Party Agreement or other agreement or instrument giving rise to
any associated rights that are or may become subjected to the Lessor’s
Interest, and (C) the Lien granted to Lessor pursuant to this Section 11.3
shall survive the termination, cancellation or expiration of this Lease until
such time as Lessee’s obligations under the Lease Documents are fully and
indefeasibly discharged. | 568 |
agreement_2.md | | 15
|
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---
(Aircraft Lease MSN 42000181)
11.4 \*\*Transaction Expenses\*\*. Without limiting any other provision
of this Lease, Lessee agrees to be solely responsible for, and pay all of the
following: | 569 |
agreement_2.md | (a) \_Transaction Expenses\_. Lessee shall pay to Lessor upon demand
all fees, costs and expenses incurred by or on behalf of Lessor (“
\*\*Transaction Expenses\*\* ”) at any time in connection with (i) the
negotiation, preparation, execution, delivery and enforcement of the Lease
Documents and the collection of the Obligations (both before and after the
occurrence of a Default or Event of Default), (ii) the creation, preservation
and protection of the Collateral and the perfection, first priority and
enforcement of Lessor’s Lien, or (iii) Lessee’s exercise of any right granted
under, or any amendment or other modification to any of, the Lease Documents.
Such Transaction Expenses shall include, without limitation, appraisal and
inspection fees, the fees and expenses of Aviation Counsel and of Lessor’s
counsel, consultants and brokers, UCC, FAA, International Registry and other
applicable title, interest and lien searches, and costs and expenses relating
to recovery, repossession, storage, insurance, transportation, repair,
refurbishment, advertising, sale and other dispositions of the Aircraft or of
any Collateral. Lessee shall also pay all fees (including license, filing and
registration fees), Impositions and other charges of whatever kind or nature
that may be payable or determined to be payable in connection with (i) the
execution, delivery, recording or performance of this Lease or any of the
other Transaction Documents, or any modification thereof, and (ii) the
filings, registrations and other undertakings relating thereto. In addition to
the foregoing, Lessee shall pay to Lessor a documentation fee in the amount of
$2,500.00. | 570 |
agreement_2.md | (b) \_Lessor’s Performance\_. If any Lessee Party fails to perform
or comply with any of its agreements contained herein or in the other
Transaction Documents, including its obligations to keep the Aircraft and any
Collateral free of Liens (other than the Permitted Liens), comply with
Applicable Standards, or obtain the Required Coverages, Lessor shall have the
right, but shall not be obligated, to effect such performance or compliance,
with such agreement. Any expenses of Lessor incurred in connection with
effecting such performance or compliance, together with interest thereon at
the Late Payment Rate from the date incurred until reimbursed, shall be
payable by Lessee to Lessor as Rent promptly on demand and until such payment
shall constitute part of the obligations secured by any Collateral. Any such
action shall not be a cure or waiver of any Default or Event of Default
hereunder. | 571 |
agreement_2.md | 11.5 \*\*Assignment\*\*. In addition to the other dispositions required
or contemplated in this Lease, Lessor (the “Assignor”) may at any time, upon
20 days’ prior notice to Lessee, freely grant a security interest in, sell,
assign, or transfer (an “ \*\*Assignment\*\* ”) all or any part of their
respective interests in, under or with respect to this Lease, the other
Transaction Documents, the Aircraft, or any Rent due or to become due with
respect thereto (including all associated rights associated with or secured
thereby and the related international interests), and Lessee shall perform all
of its obligations under the Lease Documents, to the extent so transferred,
for the benefit of the beneficiary of such Assignment (such beneficiary,
including any successors and assigns, an “ \*\*Assignee\*\* ”); provided, that
only 10 days’ prior notice shall be required if the Assignee is a wholly-
owned subsidiary of Lessor. Lessee hereby waives any right to assert, and
agrees not to assert, against any Assignee any defense, setoff, recoupment,
claim, counterclaim or any other Abatement that Lessee may have against such
Assignor. Upon the assumption by such Assignee of such Assignor’s obligations
under this Lease and the other Transaction Documents, such Assignor shall be
relieved of any such assumed obligations. Lessee hereby consents to any such
Assignment, including, without limitation, for purposes of the Cape Town
Convention. If so directed in writing, Lessee shall pay all Rent and all other
sums due or to become due to such Assignor under the Transaction Documents,
including any of the same constituting associated rights or proceeds, directly
to the Assignee or any other party designated in writing by such Assignor. | 572 |
agreement_2.md | including any of the same constituting associated rights or proceeds, directly
to the Assignee or any other party designated in writing by such Assignor.
Lessee acknowledges and agrees that Lessor’s right to enter into an Assignment
is essential to Lessor, and, accordingly, waives any restrictions under
Applicable Law with respect to an Assignment and any related remedies. Upon
the request of an Assignor or any Assignee, Lessee also agrees (a) to promptly
execute and deliver, and cause to be executed and delivered by any Guarantor
or any other Transaction Party, to such Assignor or to such Assignee an
acknowledgment of assignment in form and substance satisfactory to the
requesting party, an insurance certificate naming Assignee as additional
insured and (if applicable) loss payee and otherwise evidencing the Required
Coverages, and such other documents and assurances reasonably requested by
such Assignor or Assignee, as provided herein, (b) to make, or cause to be
made, all registrations (including all assignments and subordinations) and all
amendments, extensions and discharges with the International Registry
reasonably requested by such Assignor or Assignee (and give or obtain any
necessary consent thereto, as well as renew any authorization required by the
International Registry in connection therewith, including renewing its
transacting user entity status and re-designating a professional user entity,
if necessary in such Assignor’s judgment), and (c) to comply with any and all
other reasonable requirements of any such Assignee in connection with any such
Assignment. | 573 |
agreement_2.md | | 16
|
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---
(Aircraft Lease MSN 42000181)
11.6 \*\*Entire Agreement\*\*. This Lease and the other Lease
Documents constitute the entire understanding and agreement between Lessor and
Lessee with respect to the matters contained herein and therein, and shall
completely and fully supersede all other prior agreements (including any
proposal letter, commitment letter, and/or term sheet), both written and oral,
between Lessor and Lessee relating to the transactions contemplated herein.
The terms of this Lease may not be changed, waived, discharged or terminated
except by an instrument in writing signed by the party against which
enforcement of a change, waiver, discharge or termination is sought.
| 11.7| \*\*Governing Law, Forum and Jury Trial Waiver\*\*.
---|---|--- | 574 |
agreement_2.md | (a) \_Jurisdiction\_. Lessee hereby irrevocably consents and agrees
that any legal action, suit or proceeding arising out of or in any way in
connection with this Lease or any of the other Lease Documents may be
instituted or brought in the courts of the State of New York or in the United
States Courts for the Southern District of New York, as Lessor may elect or in
any other state or Federal court as Lessor shall deem appropriate, and by
execution and delivery of this Lease, Lessee hereby irrevocably accepts and
submits to, for itself and in respect of its property, generally and
unconditionally, the non-exclusive jurisdiction of any such court, and to all
proceedings in such courts. Lessee irrevocably consents to service of any
summons and/or legal process by first class, certified United States air mail,
postage prepaid, to Lessee at the address set forth below its signature
hereto, such method of service to constitute, in every respect, sufficient and
effective service of process in any such legal action or proceeding. Nothing
in this Lease or in any of the other Lease Documents shall affect the right to
service of process in any other manner permitted by law or limit the right of
Lessor to bring actions, suits or proceedings in the courts of any other
jurisdiction. Lessee further agrees that final judgment against it in any such
legal action, suit or proceeding shall be conclusive and may be enforced in
any other jurisdiction, within or outside the United States of America, by
suit on the judgment, a certified or exemplified copy of which shall be
conclusive evidence of the fact and the amount of the liability.
Notwithstanding anything in the foregoing to the contrary, Lessor and Lessee
may bring a judicial proceeding in the Republic of Ireland, solely with | 575 |
agreement_2.md | Notwithstanding anything in the foregoing to the contrary, Lessor and Lessee
may bring a judicial proceeding in the Republic of Ireland, solely with
respect to matters relating to the International Registry. | 576 |
agreement_2.md | (b) \_Governing Law; Binding Effect\_. This Lease shall be construed
and enforced in accordance with, and the rights of both parties shall be
governed by, the internal laws of the State of New York (without regard to the
conflict of laws principles of such state, except as to the effect of Title
14, Section 5-1401 of the New York General Obligations Law), including all
matters of construction, validity, and performance. This Lease shall be
binding upon and inure to the benefit of Lessee and Lessor and their
respective successors and assigns, except as otherwise expressly provided
herein...
(c) \_Jury Waiver\_. LESSOR AND LESSEE HEREBY KNOWINGLY AND FREELY
WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL IN ANY ACTION, SUIT OR
PROCEEDING RELATING TO, ARISING UNDER OR IN CONNECTION WITH THIS LEASE OR ANY
OF THE OTHER LEASE DOCUMENTS. | 577 |
agreement_2.md | (d) \_Counterparts; Electronic Signature\_. This Lease and the other
Lease Documents may be executed by the parties hereto on one or more
counterparts, each of which counterparts shall be deemed an original, but all
of which when taken together shall constitute one and the same instrument.
Delivery of an executed signature page counterpart of this Lease or any other
Lease Document by telecopy, emailed .pdf or any other electronic means that
reproduces an image of the actual executed signature page shall be effective
as delivery of a manually executed counterpart of this Lease or such other
Lease Document. The words “executed,” “signed,” “signature,” “delivery,” and
words of like import in or relating to any document to be signed in connection
with this Lease or any other Lease Document shall be deemed to include
electronic signatures, the electronic association of signatures and records on
electronic platforms, deliveries or the keeping of records in electronic form,
each of which shall be of the same legal effect, validity or enforceability as
a manually executed signature, physical delivery thereof or the use of a
paper-based record keeping system, as the case may be, to the extent and as
provided for in any applicable law, including the Federal Electronic
Signatures in Global and National Commerce Act, the New York State Electronic
Signatures and Records Act, any other similar state laws based on the Uniform
Electronic Transactions Act or the Uniform Commercial Code, each as amended,
and the parties hereto hereby waive any objection to the contrary, provided
that (x) nothing herein shall require Lessor to accept electronic signature
counterparts in any form or format and (y) Lessor reserves the right to
require, at any time and at its sole discretion, the delivery of manually
executed counterpart signature pages to this Lease or any other Lease Document
and the parties hereto agree to promptly deliver such manually executed | 578 |
agreement_2.md | executed counterpart signature pages to this Lease or any other Lease Document
and the parties hereto agree to promptly deliver such manually executed
counterpart signature pages. ONLY COUNTERPART NO. 1 OF THIS LEASE AND THE
LEASE SUPPLEMENT SHALL BE CONSIDERED “CHATTEL PAPER” FOR PURPOSES OF THE UCC.
The execution hereof on behalf of Lessee and Lessor shall be deemed to
constitute the acceptance by Lessee and Lessor of the terms and conditions of
each and every addendum, rider, supplement, annex and exhibit hereto as if
such document was separately and individually executed on behalf of such party
hereto and shall constitute a part of this Lease. | 579 |
agreement_2.md | | 17
|
---|---|---
---
(Aircraft Lease MSN 42000181) | 580 |
agreement_2.md | \*\*SECTION 12\. TRUTH IN LEASING\*\*. UPON ENTERING INTO THE LEASE SUPPLEMENT
FOR THE PURPOSE OF, AMONG OTHER THINGS, ACCEPTING THE AIRCRAFT UNDER THIS
LEASE IN ACCORDANCE WITH THE TERMS HEREOF AND THEREOF, LESSEE SHALL BE DEEMED
TO HAVE CERTIFIED AS FOLLOWS: THE AIRCRAFT, AS EQUIPMENT, BECAME SUBJECT TO
THE MAINTENANCE REQUIREMENTS OF PART 91 OF THE FEDERAL AVIATION REGULATIONS (“
\*\*FARS\*\* ”) UPON THE REGISTRATION OF THE AIRCRAFT WITH THE FAA. LESSEE
CERTIFIES THAT DURING THE TWELVE (12) MONTHS (OR PORTION THEREOF DURING WHICH
THE AIRCRAFT HAS BEEN SUBJECT TO U.S. REGISTRATION) PRECEDING THE EXECUTION OF
THIS LEASE, THE AIRCRAFT HAS BEEN MAINTAINED AND INSPECTED UNDER PART 91 OF
THE FARS. THE AIRCRAFT IS IN CURRENT COMPLIANCE WITH APPLICABLE MAINTENANCE
AND INSPECTION REQUIREMENTS. LESSEE CERTIFIES THAT THE AIRCRAFT WILL BE
MAINTAINED AND INSPECTED UNDER PART 91 OF THE FARS FOR OPERATIONS TO BE
CONDUCTED UNDER THIS LEASE. UPON EXECUTION OF THIS LEASE, AND DURING THE TERM
HEREOF, LESSEE, WHOSE NAME AND ADDRESS ARE SET FORTH IMMEDIATELY BELOW, ACTING
BY AND THROUGH THE SIGNATORY HERETO, WHO EXECUTES THIS LEASE SOLELY IN THE
CAPACITY SET FORTH BELOW HER/HIS SIGNATURE, CERTIFIES THAT LESSEE SHALL BE
RESPONSIBLE FOR THE OPERATIONAL CONTROL OF THE AIRCRAFT UNDER THIS LEASE | 581 |
agreement_2.md | RESPONSIBLE FOR THE OPERATIONAL CONTROL OF THE AIRCRAFT UNDER THIS LEASE
(WHILE IT HAS POSSESSION OF THE AIRCRAFT), UNLESS OPERATIONAL CONTROL OF THE
AIRCRAFT IS PROVIDED TO AN AIR TAXI OPERATOR CERTIFICATED UNDER PART 135 OF
THE FARS, IF AND TO THE EXTENT PERMITTED HEREUNDER. LESSEE FURTHER CERTIFIES
THAT IT UNDERSTANDS ITS RESPONSIBILITIES FOR COMPLIANCE WITH APPLICABLE FARS,
PROVIDED HOWEVER, THAT LESSEE SHALL NOT BE DEEMED TO BE RESPONSIBLE FOR THE
OPERATIONAL CONTROL OF THE AIRCRAFT FOR SO LONG AS THE AIRCRAFT IS IN
POSSESSION OF ANY SUCH AIR TAXI OPERATOR HAVING OPERATIONAL CONTROL TO THE
EXTENT PERMITTED HEREUNDER. AN EXPLANATION OF FACTORS BEARING ON OPERATIONAL
CONTROL AND PERTINENT FARS CAN BE OBTAINED FROM THE NEAREST FEDERAL AVIATION
FLIGHT STANDARDS DISTRICT OFFICE, GENERAL AVIATION DISTRICT OFFICE, OR AIR
CARRIER DISTRICT OFFICE. | 582 |
agreement_2.md | \*\*[Signatures on Next Page]\*\*
| 18
|
---|---|---
---
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be duly
executed as of the date first written above by their respective officers
thereunto duly authorized.
Lessor: | | Lessee:
---|---|---
| |
\*\*WESTERN FINANCE COMPANY\*\* | | \*\*GALILEE 1 SPV LLC\*\*
| |
| |
By: | /s/ Tim Bruckner | | By: | /s/ George Murnane
Name: Tim Bruckner | | Name: George Murnane
Title: President | | Title: President
| |
Address: | | Address:
| |
One East Washington Street, Suite 1400 | | c/o Aerlex Tax Services
Phoenix, Arizona 85004 | | 11900 West Olympic Blvd., Suite 400
Attention: Brian Scott | | Los Angeles, California 90064
| | Attention: Vicky Boladian
\*\*This is Counterpart No. 1 of a total of 5 counterparts. Only Counterpart
No. 1 shall be considered chattel paper for purposes of the Uniform Commercial
Code and a security interest may be perfected only by possession of
Counterpart No. 1.\*\*
\*\*[EXECUTION PAGE OF AIRCRAFT LEASE (MSN 42000181)]\*\*
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be duly
executed as of the date first written above by their respective officers
thereunto duly authorized. | 583 |
agreement_2.md | Lessor: | Lessee:
---|---
|
\*\*WESTERN FINANCE COMPANY\*\* | \*\*GALILEE 1 SPV LLC\*\*
By: | /s/ Tim Bruckner | | By: | /s/ George Murnane
---|---|---|---|---
Name: Tim Bruckner | Name: George Murnane
---|---
Title: President | Title: President
|
Address: | Address:
|
One East Washington Street, Suite 1400 | c/o Aerlex Tax Services
Phoenix, Arizona 85004 | 11900 West Olympic Blvd., Suite 400
Attention: Brian Scott | Los Angeles, California 90064
| Attention: Vicky Boladian
\*\*This is Counterpart No. 2 of a total of 5 counterparts. Only Counterpart
No. 1 shall be considered chattel paper for purposes of the Uniform Commercial
Code and a security interest may be perfected only by possession of
Counterpart No. 1.\*\*
\*\*[EXECUTION PAGE OF AIRCRAFT LEASE (MSN 42000181)]\*\*
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be duly
executed as of the date first written above by their respective officers
thereunto duly authorized.
Lessor: | Lessee:
---|---
|
\*\*WESTERN FINANCE COMPANY\*\* | \*\*GALILEE 1 SPV LLC\*\*
By: | /s/ Tim Bruckner | | By: | /s/ George Murnane
---|---|---|---|---
Name: Tim Bruckner
| | 584 |
agreement_2.md | |
Name: George Murnane
---|---
Title: President | Title: President
|
Address: | Address:
|
One East Washington Street, Suite 1400 | c/o Aerlex Tax Services
Phoenix, Arizona 85004 | 11900 West Olympic Blvd., Suite 400
Attention: Brian Scott | Los Angeles, California 90064
| Attention: Vicky Boladian
\*\*This is Counterpart No. 3 of a total of 5 counterparts. Only Counterpart
No. 1 shall be considered chattel paper for purposes of the Uniform Commercial
Code and a security interest may be perfected only by possession of
Counterpart No. 1.\*\*
\*\*[EXECUTION PAGE OF AIRCRAFT LEASE (MSN 42000181)]\*\*
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be duly
executed as of the date first written above by their respective officers
thereunto duly authorized.
Lessor: | Lessee:
---|---
|
\*\*WESTERN FINANCE COMPANY\*\* | \*\*GALILEE 1 SPV LLC\*\*
By: | /s/ Tim Bruckner | | By: | /s/ George Murnane
---|---|---|---|---
Name: Tim Bruckner
|
Name: George Murnane
---|---
Title: President | Title: President
|
Address: | Address:
|
One East Washington Street, Suite 1400 | c/o Aerlex Tax Services
Phoenix, Arizona 85004 | 11900 West Olympic Blvd., Suite 400
Attention: Brian Scott | Los Angeles, California 90064
| Attention: Vicky Boladian | 585 |
agreement_2.md | \*\*This is Counterpart No. 4 of a total of 5 counterparts. Only Counterpart
No. 1 shall be considered chattel paper for purposes of the Uniform Commercial
Code and a security interest may be perfected only by possession of
Counterpart No. 1.\*\*
\*\*[EXECUTION PAGE OF AIRCRAFT LEASE (MSN 42000181)]\*\*
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be duly
executed as of the date first written above by their respective officers
thereunto duly authorized.
Lessor: | Lessee:
---|---
|
\*\*WESTERN FINANCE COMPANY\*\* | \*\*GALILEE 1 SPV LLC\*\*
By: | /s/ Tim Bruckner | | By: | /s/ George Murnane
---|---|---|---|---
Name: Tim Bruckner
|
Name: George Murnane
---|---
Title: President | Title: President
|
Address: | Address:
|
One East Washington Street, Suite 1400 | c/o Aerlex Tax Services
Phoenix, Arizona 85004 | 11900 West Olympic Blvd., Suite 400
Attention: Brian Scott | Los Angeles, California 90064
| Attention: Vicky Boladian
\*\*This is Counterpart No. 5 of a total of 5 counterparts. Only Counterpart
No. 1 shall be considered chattel paper for purposes of the Uniform Commercial
Code and a security interest may be perfected only by possession of
Counterpart No. 1.\*\*
\*\*[EXECUTION PAGE OF AIRCRAFT LEASE (MSN 42000181)]\*\* | 586 |
agreement_2.md | \*\*[EXECUTION PAGE OF AIRCRAFT LEASE (MSN 42000181)]\*\*
(Aircraft Lease MSN 42000181)
\*\*ANNEX A
DEFINITIONS\*\*
The following terms shall have the following meanings for all purposes of the
Lease: | 587 |
agreement_2.md | \*\*A. \*\* \*\*Rules of Interpretation\*\*. (1) The following terms
shall be construed as follows: (a) ” \*\*herein\*\* ,” “ \*\*hereof\*\* ,” “
\*\*hereunder\*\* ,” etc.: means in, of, under, etc. the Lease as a whole (and not
merely in, of, under, etc. the section or provision where the reference
occurs); (b) ” \*\*including\*\* ”: means including without limitation unless such
term is followed by the words “ \*\*and limited to\*\* ,” or similar words; and
(c) ” \*\*or\*\* ”: means at least one, but not necessarily only one, of the
alternatives enumerated. (2) Any defined term used in the singular preceded by
“ \*\*any\*\* ” indicates any number of the members of the relevant class. (3)
Except as otherwise indicated, all the agreements and instruments defined
herein or in the Lease shall mean such agreements and instruments as the same
may from time to time be supplemented or amended, or as the terms thereof may
be expressly waived or modified to the extent permitted by, and in accordance
with, the terms thereof. (4) Any reference in the Lease Documents to the “
\*\*Special Tax Indemnity Rider\*\* ”, “ \*\*Closing Terms Addendum\*\* ”, “ \*\*Option
Addendum\*\* ”, and “ \*\*Return Addendum\*\* ”, respectively, shall mean that
certain rider or addendum titled as such; and upon execution of the Lease by
Lessee and Lessor, shall be deemed to constitute execution and acceptance of | 588 |
agreement_2.md | Lessee and Lessor, shall be deemed to constitute execution and acceptance of
the terms and conditions of such rider or addendum, and it shall supplement
and be a part of the Lease (each, an “ \*\*Addendum\*\* ”). (5) The terms defined
herein and in the Lease shall, for purposes of the Lease and the Lease
Supplement, Addenda, annexes, schedules, and exhibits hereto and thereto, have
the meanings assigned to them and shall include the plural as well as the
singular as the context requires. | 589 |
agreement_2.md | \*\*B. \*\* \*\*CTC Terms.\*\* Certain of the terms used in the Lease (“
\*\*CTC Terms\*\* ”) have the meaning set forth in and/or intended by the “ \*\*Cape
Town Convention\*\* ”, which term means, collectively, (i) the official English
language text of the Convention on International Interests in Mobile
Equipment, adopted on 16 November 2001 at a diplomatic conference held in Cape
Town, South Africa, as the same may be amended or modified from time to time
(the “ \*\*Convention\*\* ”), (ii) the official English language text of the
Protocol to the Convention on International Interests in Mobile Equipment on
Matters Specific to Aircraft Equipment, adopted on 16 November 2001 at a
diplomatic conference held in Cape Town, South Africa, as the same may be
amended or modified from time to time (the “ \*\*Protocol\*\* ”), and (iii) the
related procedures and regulations for the International Registry of Mobile
Assets located in Dublin, Ireland and established pursuant to the Cape Town
Convention, along with any successor registry (the “ \*\*International
Registry\*\* ”), issued by the applicable supervisory authority pursuant to the
Convention and the Aircraft Protocol, as the same may be amended or modified
from time to time. By way of example, but not limitation, these CTC Terms
include, “administrator”, “associated rights”, “contract of sale”, “sale”,
“prospective sale”, “proceeds”, “international interests”, “prospective
international interest”, “security assignment”, “transfer”, “working days”,
“consent”, “final consent”, “priority search certificate”, “professional user | 590 |
agreement_2.md | “consent”, “final consent”, “priority search certificate”, “professional user
entity”, “transacting user entity” and “contract”; \_except\_ “proceeds” shall
also have the meaning set forth below. | 591 |
agreement_2.md | \*\*C. \*\* \*\*Schedule Terms.\*\* The following terms shall have the
respective meanings set forth for such terms in Schedules No. 2 and 2-A for
all purposes of the Lease: \_Basic Rent Date, Basic Rent Percentage, Basic
Term, Expiration Date, First Basic Rent Date, Last Basic Rent Date, Lessor’s
Cost and Rent Commencement Date\_.
\*\*D.\*\* \*\* \*\* \*\*Other Defined Terms.\*\*
\*\*\_Abatements\_\*\* shall have the meaning set forth in Section 2.2 of the Lease.
\*\*\_Acceptance Date\_\*\* shall mean the date on which Lessee irrevocably and
unconditionally accepts the Aircraft for lease under the Lease as evidenced by
the execution and delivery of, and specified as such in, the Lease Supplement.
\*\*\_Administrative Charge\_\*\* shall mean an amount equal to five percent (5%) of
the amount payable to which such charge applies.
| A-1|
---|---|---
(Aircraft Lease MSN 42000181)
\*\*\_Affiliate\_\*\* shall mean, with respect to either Lessor or Lessee, as
applicable, any affiliated Person controlling, controlled by or under common
control with such party, and for this purpose, ‘control’ means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of any such Person, whether through the legal or
beneficial ownership of voting securities, by contract or otherwise. | 592 |
agreement_2.md | \*\*\_Aircraft\_\*\* shall mean, collectively, the Airframe, the Engines and the
Records; and all accessories, additions, accessions, alterations,
modifications, Parts, repairs and attachments now or hereafter affixed thereto
or used in connection therewith, and all Permitted Replacements and all other
replacements, substitutions and exchanges (including trade-ins) for any of the
foregoing.
\*\*\_Airframe\_\*\* shall mean, collectively, (i) the airframe described in
\_Schedule No. 1\_, and shall not include the Engines, and (ii) any and all
related Parts.
\*\*\_Applicable Law\_\*\* shall mean all applicable laws, statutes, treaties,
conventions, judgments, decrees, injunctions, writs and orders of any
Governmental Authority and rules, regulations, orders, directives, licenses
and permits of any Governmental Authority as amended and revised, and any
judicial or administrative interpretation of any of the same, including the
airworthiness certificate issued with respect to the Aircraft, the Cape Town
Convention, the UCC, the Transportation Code, all TSA regulations, all FARs,
airworthiness directives, and/or any of the same relating to the Collateral
generally or to noise, the environment, security, public safety, insurance,
taxes and other Impositions, exports or imports or contraband.
\*\*\_Applicable Standards\_\*\* shall mean, collectively, (i) Applicable Law, (ii)
the requirements of the Required Coverages, and (iii) all Maintenance
Requirements.
\*\*\_Assignee\_\*\* and \*\*\_Assignment\_\*\* shall each have the meanings respectively
set forth in Section 11.5 hereof. | 593 |
agreement_2.md | \*\*\_AS-IS, WHERE-IS\_\*\* shall mean \*\*“AS-IS WHERE-IS”\*\* , and \*\*“WITH ALL
FAULTS”\*\* , without any representation or warranty, express or implied, of any
kind whatsoever, by, or any recourse of any kind whatsoever to, Lessor.
\*\*\_Assumed Tax Benefits\_\*\* shall have the meaning set forth in the Special Tax
Indemnity Rider.
\*\*\_Assumed Tax Rate\_\*\* shall have the meaning set forth in the Special Tax
Indemnity Rider.
\*\*\_Aviation Counsel\_\*\* shall mean such counsel as Lessor may designate from
time to time.
\*\*\_Aviation Documents\_\*\* shall have the meaning set forth in Section 2 of the
Closing Terms Addendum.
\*\*\_Basic Rent\_\*\* shall have the meaning set forth in Section 2.1 of the Lease.
\*\*\_Bonus Depreciation\_\*\* shall have the meaning set forth in the Special Tax
Indemnity Rider.
\*\*\_Business Day\_\*\* shall mean any day other than a Saturday, Sunday or other
day on which banks located in New York, New York or Phoenix, Arizona are
closed or are authorized to close. | 594 |
agreement_2.md | \*\*\_Casualty Payment Date\_\*\* shall mean, with respect to an Event of Loss,
whichever of the following dates as may then be applicable: (a) the next Basic
Rent Date following the earlier of either (i) the receipt of the related
casualty insurance proceeds payable pursuant to the Required Coverages, or
(ii) the sixtieth (60th) day following the occurrence of such Event of Loss;
or (b) if such Event of Loss occurs after the last Basic Rent Date, then on
the earlier of either (i) the receipt of the related casualty insurance
proceeds payable pursuant to the Required Coverages, or (ii) the sixtieth
(60th) day following the occurrence of such Event of Loss.
\*\*\_Casualty Value\_\*\* shall mean, for any Casualty Payment Date, an amount
equal to, whichever of the following amounts as may then be applicable: (a)
the Lessor’s Cost, multiplied by the applicable percentage set forth on
Schedule No. 3 for the corresponding Basic Rent Date, or (b) if the Casualty
Payment Date is after the last Basic Rent Date, an amount equal to the
Lessor’s Cost, \_multiplied\_ by the applicable percentage set forth on
\_Schedule No. 3\_ for the last Basic Rent Date.
| A-2|
---|---|---
(Aircraft Lease MSN 42000181) | 595 |
agreement_2.md | | A-2|
---|---|---
(Aircraft Lease MSN 42000181)
\*\*\_Change in Control\_\*\* shall, with respect to any Guarantor, mean: that any
Person or group of Persons (within the meaning of Section 13 or Section 14 of
the Securities Exchange Act of 1934, as amended) shall have acquired, directly
or indirectly, beneficial ownership (with the meaning of Rule 13d-3
promulgated by the SEC under said Act) of 30% or more of the outstanding
shares of equity securities of such Guarantor at the time entitled to vote for
election of directors (or equivalent governing body) of such Guarantor.
\*\*\_charter\_\*\* or \*\*\_chartering\_\*\* means the provision of on-demand commercial
air transportation in accordance with Part 135 of the FARs.
\*\*\_Claim\_\*\* shall have the meaning set forth in Section 8.1 hereof.
\*\*\_Closing Date\_\*\* shall have the meaning set forth in the preamble of the
Lease.
\*\*\_Closing Deliverables\_\*\* shall have the meaning set forth in Section 1 of
the Closing Terms Addendum.
\*\*\_Code\_\*\* shall have the meaning set forth in the Special Tax Indemnity
Rider.
\*\*\_Collateral\_\*\* shall have the meaning set forth in Section 11.3 hereof.
\*\*\_Consolidated Group\_\*\* shall have the meaning set forth in the Special Tax
Indemnity Rider. | 596 |
agreement_2.md | \*\*\_Consolidated Group\_\*\* shall have the meaning set forth in the Special Tax
Indemnity Rider.
\*\*\_Control\_\*\* shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or
otherwise.
\*\*\_Daily Rent\_\*\* shall mean any daily rent payable during the Term pursuant to
this Lease in a per diem amount equal to the product of (a) the Lessor’s Cost,
\_multiplied\_ by (b) the Daily Rent Percentage, for each day of the referenced
period.
\*\*\_Default\_\*\* shall mean an event or circumstance that, after the giving of
notice or lapse of time, or both, would become an Event of Default.
\*\*\_Defective Registration\_\*\* shall mean any failure to cause the Aircraft to
be effectively registered with the Registry in the name of Lessor in
accordance with the applicable Registration Requirements, for any reason
whatsoever, including should such registration be revoked, canceled or expired
or otherwise deemed to have ended or been invalidated pursuant to the
Registration Requirements.
\*\*\_Diminution Amount\_\*\* shall mean the amount by which (A) the Fair Market
Sales Value of the Aircraft without such damage history, exceeds (B) the Fair
Market Sales Value of the Aircraft with such damage history (and as to this
sub- clause (B), without making the assumption in clause (iii)(B) of the
definition of Fair Market Sales Value). | 597 |
agreement_2.md | \*\*\_Discount Rate\_\*\* means the 1-year Treasury Constant Maturity rate as
published in the Selected Interest Rates table of the Federal Reserve
statistical release H.15(519) for the week ending immediately prior to the
Acceptance Date (or if such rate is no longer determined or published, a
successor or alternate rate selected by Lessor).
\*\*\_Engine\_\*\* shall mean (i) each of the engines described in \_Schedule No. 1\_
currently installed on the Airframe or hereinafter removed from the Airframe,
whether or not hereafter installed on the Airframe or any other airframe from
time to time; (ii) any engine constituting a Permitted Replacement; and (iii)
any and all related Parts.
\*\*\_Engine Maintenance Program\_\*\* shall mean the GHAE Engine Maintenance
Comprehensive Care Plan (“EMC2 Plan”), as available on the Acceptance Date,
and reasonably satisfactory to Lessor.
| A-3|
---|---|---
(Aircraft Lease MSN 42000181)
\*\*\_Equity Interests\_\*\* shall mean shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person, and any
warrants, options or other rights entitling the holder thereof to purchase or
acquire any such equity interest.
\*\*\_Escrow Holder\_\*\* shall have the meaning set forth in Section 2 of the
Closing Terms Addendum.
\*\*\_Estimated Annual Hours\_\*\* shall mean the anticipated number of average
annual flight hours as shown on \_Schedule No. 2-A\_. | 598 |
agreement_2.md | \*\*\_Event of Default\_\*\* shall have the meaning set forth in Section 9.1 of the
Lease. | 599 |