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separately with the Securities and Exchange Commission pursuant to a request
for confidential treatment. |
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agreement_25.md | EX-10.11D
2
a19-30052\_1ex10d11d.htm
EX-10.11D
**Exhibit 10.11D**
**AIRCRAFT DRY LEASE AGREEMENT**
This Aircraft Dry Lease Agreement (this “**Agreement**”) is made and entered into as of this 18th day of December, 2018 by and between [Mr. Donnelly’s limited liability company] (“**Lessor**”) and Textron Inc., a Delaware corporation with an address of 40 Westminster Street, Providence, RI 02903 (“**Lessee**”).
WITNESSETH:
WHEREAS, Lessor owns one (1) Cessna 525B (Citation CJ3) aircraft bearing manufacturer’s serial number and FAA registration number set forth on Schedule B hereto (the “**Aircraft**”); and
WHEREAS, Lessee desires to lease the Aircraft from Lessor on a non-exclusive, non-continuous basis and Lessor is willing to lease the Aircraft to Lessee on such basis under the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual covenants herein set forth, the parties agree as follows:
**SECTION 1.** **LEASE**
1.1 Lessor agrees to lease to Lessee, and Lessee agrees to lease from Lessor, the Aircraft, on a non-exclusive, non-continuous basis under the terms and conditions of this Agreement. | 901 |
agreement_25.md | 1.2 Lessee acknowledges and agrees that Lessor may lease the Aircraft to other lessees that may, during the periods of their possession, operate the Aircraft under Part 91 of the Federal Aviation Regulations (“**FARs**”). Lessee shall only have operational control of and responsibility for the Aircraft during Lessee’s periods of possession. At all other times, Lessor or other lessees, as applicable, shall have responsibility for and control of the Aircraft, and during all periods when the Aircraft is in the possession of other lessee(s), such other lessee(s) shall have operational control of and responsibility for the Aircraft, to the exclusion of Lessee.
**SECTION 2. TERM; PAYMENTS**
2.1 **Term**. This Agreement shall commence on the date of execution of this Agreement and shall continue for a period of one (1) year. The term of the Agreement shall be renewed automatically thereafter for additional one (1) year terms, until terminated as set forth below. The initial term and any extension thereof shall be collectively referred to as “**Term**”. Notwithstanding anything to the contrary in this Section 2.1, in the event of a breach by either party of its obligations hereunder, the other party may terminate this Agreement upon five (5) days written notice (or immediately upon notice in the event the insurance required herein is not in full force and effect at any time during the Term). This Agreement also may be terminated by either party without cause upon thirty (30) days prior written notice to the other party. | 902 |
agreement_25.md | 2.2 **Payments**. Lessee shall pay the direct operating costs as provided in Section 5.3 for all flights operated by it during its periods of possession and the “**Maintenance Reserves**” set forth in Schedule A. Lessor agrees that Lessee shall not be obligated to pay rent for its use of the Aircraft.
**SECTION 3**. **SCHEDULING; DELIVERY; REDELIVERY**
1 | 903 |
agreement_25.md | 3.1 **Scheduling**. Lessee shall notify Lessor when it desires to operate the Aircraft, including the date(s). Lessor shall promptly advise Lessee whether the Aircraft is available, it being understood and agreed that Lessor shall not unreasonably withhold its consent if the Aircraft is not otherwise scheduled for use or maintenance.
3.2 **Delivery/Redelivery**.
(a) The Aircraft shall be delivered to Lessee at the Textron Inc. hangar located at T.F. Green Airport in Warwick, Rhode Island (the “**Operating Base**”) (or such other location as agreed by Lessor and Lessee) prior to each use of the Aircraft by Lessee. Upon completion of each such use, the Aircraft shall be redelivered to Lessor at the Operating Base (or such other location as agreed by Lessor and Lessee).
(b) Upon delivery of possession of the Aircraft, Lessee shall indicate its receipt of possession by executing a log (substantially in the form attached hereto as Schedule B or in a substantially similar electronic format) containing the information identifying when and where it accepted possession and control of the Aircraft (“**Delivery/Redelivery Log**”). Execution of the Delivery/Redelivery Log by Lessee shall serve as evidence that Lessee has assumed possession, control and responsibility for the Aircraft and the commencement of Lessee’s operational control of the Aircraft (as more fully described in Section 5.6 below). The Delivery/Redelivery Log shall be kept with the Aircraft. | 904 |
agreement_25.md | (c) When the Aircraft is returned by Lessee to Lessor in the condition required herein, Lessor shall accept the Aircraft as evidenced by Lessor’s execution of the Delivery/Redelivery Log, whereupon Lessee’s possession, control and responsibility for the Aircraft and its operational control of the Aircraft shall be concluded and Lessor shall reassume possession, control and responsibility for the Aircraft until such time as it is again delivered to Lessee or to another lessee.
**SECTION 4.** **CONDITION OF AIRCRAFT**. The Aircraft is being leased to Lessee on an “AS IS” basis. LESSOR SHALL NOT BE DEEMED TO HAVE MADE, AND LESSOR HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EITHER EXPRESSED OR IMPLIED, OF ANY KIND OR NATURE WHATSOEVER WITH RESPECT TO THE AIRCRAFT, INCLUDING, WITHOUT LIMITATION, THE DESIGN OR CONDITION OF THE AIRCRAFT, ITS MERCHANTABILITY OR FITNESS FOR LESSEE’S INTENDED USE, THE QUALITY OF THE MATERIAL OR WORKMANSHIP OF THE AIRCRAFT, ITS VALUE OR AIRWORTHINESS OR CONFORMITY OF THE AIRCRAFT TO ANY SPECIFICATIONS, NOR SHALL LESSOR BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING STRICT OR ABSOLUTE LIABILITY IN TORT) ARISING THEREFROM.
**SECTION 5.** **REGISTRATION, USE, OPERATION, MAINTENANCE AND POSSESSION**
5.1 **Title and Registration**. Title to the Aircraft shall remain vested in Lessor at all times during the Term to the exclusion of Lessee and Lessee shall have only such rights as shall be specifically set forth herein. Lessor represents that as of the date of this Agreement the Aircraft is, and throughout the Term the Aircraft shall remain, lawfully registered as a civil aircraft of the United States. | 905 |
agreement_25.md | 2 | 906 |
agreement_25.md | 5.2 **Use and Operation**. Except as otherwise expressly provided herein, Lessee shall be solely and exclusively responsible for the use, operation and control of the Aircraft during the Term for each period commencing when the Aircraft has been delivered to Lessee and terminating when the Aircraft has been returned to Lessor as evidenced in the Delivery/Redelivery Log. Lessee shall operate the Aircraft in accordance with the provisions of Part 91 of the FARs and shall not operate the Aircraft in commercial service, as a common carrier, or otherwise on a “for hire” basis. Lessee agrees not to operate or locate the Aircraft, or, during its period(s) of possession, suffer the Aircraft to be operated or located, in any area excluded from coverage by any insurance policy in effect or required to be maintained hereunder with respect to the Aircraft, or in any war zone. Lessee agrees not to operate the Aircraft or, during its period(s) of possession, permit the Aircraft to be operated except in operations for which Lessee is duly authorized, or to use or permit the Aircraft to be used for a purpose for which the Aircraft is not designed or reasonably suitable. Lessee will not use or operate the Aircraft in violation of any applicable law, or contrary to any manufacturer’s operating manuals or instructions. Lessee shall not permit the Aircraft to be used for the carriage of any persons or property prohibited by law nor shall it be used during the existence of any known defect except in accordance with the FARs. | 907 |
agreement_25.md | 5.3 **Operating Costs**. Lessee shall bear the cost of fuel, oil and lubricants, de-icing fluid, landing and navigation fees; airport and parking charges; catering, communications charges, Flight Crew (as defined in Section 5.5) wages, taxes and benefits (or contract payments, as applicable), flight crew travel expenses, and passenger service for flights operated by Lessee during its periods of possession of the Aircraft. Lessor shall bear the fixed costs for the Aircraft including the cost of insurance, inspections, maintenance, repairs, modifications and alterations (subject to Lessee’s payment of Maintenance Reserves), and such hangar rent as it is obligated to pay under its hangar agreement.
5.4 **Maintenance of Aircraft**. Lessee shall perform, or cause to be performed, all pre- and post-flight inspections for the Aircraft when it has possession of the Aircraft hereunder and for determining whether the Aircraft is airworthy and safe for flight during such period(s). Lessee shall notify Lessor, or cause Lessor to be notified, of any maintenance requirement, dangerous condition, malfunction or worn part that may be discovered during any such inspection or during its operation of the Aircraft. Lessee shall pay Maintenance Reserves for each flight hour operated by Lessee, such payment to be Lessee’s sole responsibility for the payment of inspections and maintenance (scheduled and unscheduled). Subject to the foregoing, Lessor shall be solely responsible for arranging and ensuring the timely completion of all inspections and maintenance of the Aircraft during the Term in accordance with the FARs and for the payment thereof. | 908 |
agreement_25.md | 5.5 **Flight Crew**. Lessee shall, at its own expense, locate and retain (as employees or agents) duly qualified and licensed pilots required to operate the Aircraft (“**Flight Crew**”) during each period of Lessee’s possession. All Flight Crew shall be fully competent and experienced, duly licensed, and qualified in accordance with the requirements of applicable law and all insurance policies covering the Aircraft and shall only operate the Aircraft with the Flight Crew. Subject to compliance with the forgoing, Lessee shall have complete control and discretion regarding the selection of the Flight Crew who will operate the Aircraft during each period of its possession of the Aircraft under this Agreement. If Lessee desires to have cabin personnel on the flight(s), it shall retain duly qualified and experienced personnel at its sole cost.
5.6 **Operational Control.** THE PARTIES EXPRESSLY INTEND AND AGREE THAT THIS AGREEMENT IS A “DRY” LEASE AND THAT LESSEE SHALL AT ALL TIMES WHILE THE AIRCRAFT IS IN ITS POSSESSION DURING THE TERM HAVE AND MAINTAIN OPERATIONAL CONTROL OF THE AIRCRAFT. Lessee shall exercise exclusive authority over
3 | 909 |
agreement_25.md | initiating, conducting, or terminating any flight conducted by it pursuant to this Agreement, and the Flight Crew shall be under the exclusive command and control of Lessee in all phases of such flights.
5.7 **Right to Inspect**. Lessor and its agents shall have the right to inspect the Aircraft at any reasonable time, upon giving Lessee reasonable notice, to ascertain the condition of the Aircraft and to satisfy Lessor that the Aircraft is being properly operated, repaired and maintained in accordance with the requirements of this Agreement.
**SECTION 6. CONDITION DURING TERM AND RETURN OF AIRCRAFT**. Upon completion of each use of the Aircraft by Lessee during the Term, Lessee shall return the Aircraft to Lessor by delivering the Aircraft to the Operating Base. Upon each such redelivery, the Aircraft shall be in as good operating condition as at it was in when Lessor delivered the Aircraft to Lessee, ordinary wear and tear excepted, and shall have a valid and effective FAA standard airworthiness certificate. Nothing contained in this Section 6 shall be interpreted to require Lessee to perform any maintenance or other obligation responsibility for which is delegated to Lessor pursuant to Section 5.4 hereof; provided, however, that Lessee shall be obligated to advise Lessor of any maintenance requirement, dangerous condition, malfunction or worn part that it may discover during each period of possession during the Term. | 910 |
agreement_25.md | **SECTION 7. LIENS**. Lessee shall ensure that no liens are created or placed against the Aircraft by Lessee or third parties as a result of Lessee’s or its agents’ or representatives’ action or inaction except (a) the respective rights of Lessor and Lessee as herein provided, (b) liens created by Lessor, (c) liens for taxes not yet due, and (d) inchoate materialmen’s, mechanics’, workmen’s, repairmen’s, employees’ or other like liens arising in the ordinary course of business of Lessee (or parties acting on behalf of Lessee) insofar as such actions relate to the Aircraft and are not inconsistent with this Agreement) and not delinquent.
**SECTION 8. INSURANCE; LIMITATION OF LIABILITY**
8.1 **Liability.** Lessor shall maintain, or cause to be maintained, combined single limit of liability in an amount not less than Two Million United States Dollars (USD $2,000,000) insuring (A) any damage, loss or destruction and (B) injury to or death of persons (including but not limited to passengers and crew) or damage to property of others. Said policy shall be an occurrence policy and shall include Lessee and Lessee’s crew members as additional named insureds. | 911 |
agreement_25.md | 8.2 **Hull.** Lessor shall maintain aircraft hull insurance in an amount not less than the agreed value on file with the insurers (including, without limitation, foreign object damage insurance), which the parties agree shall be deemed to be the full replacement value of the Aircraft, and such insurance shall name Lessor as loss payee. Said policy shall contain a waiver of subrogation clause in favor of all additional named insureds.
8.3 **Insurance Certificates.** Lessor will provide Lessee with a certificate of insurance and related endorsements upon execution of this Agreement and thereafter reasonably upon request therefor.
8.4 **General Requirements**. Each insurance policy required hereunder shall insure the interest of Lessee regardless of any breach or violation by Lessor of any warranties, declarations, or conditions contained in such policies. Each policy shall contain an agreement by the insurer that notwithstanding the lapse of any such policy for any reason or any right of cancellation by the insurer or Lessor, whether voluntary or involuntary, such policy shall continue in force for the benefit of Lessee for at least thirty (30) days (or such lesser time as may be permitted in the case of war risk insurance, if such war risk
4 | 912 |
agreement_25.md | insurance so requires) after written notice of such lapse or cancellation shall have been given to Lessee. Each policy shall contain an agreement by the Insurer to provide Lessee with thirty (30) days’ advance written notice of any deletion, cancellation, or material change in coverage. Each insurance policy required hereunder shall be issued by a company or companies that is qualified to do business in the United States and that (i) will submit to the jurisdiction of any competent state or federal court in the United States with regard to any dispute arising out of the policy of insurance or concerning the parties herein; and (ii) will respond to any claim or judgment against Lessee in any competent state or federal court in the United States or its territories. Each such policy shall be primary without any right of contribution from any insurance maintained by Lessee, including excess insurance which Lessee shall have the right to maintain for its sole benefit. Upon the prior written mutual agreement of Lessee and Lessor and the written consent of Lessee’s insurer, the parties may amend this provision so that Lessee’s liability coverage will be primary when Lessee has operational control of the flight during Lessee’s period(s) of possession. | 913 |
agreement_25.md | 8.5 **Limitation of Liability**. IN NO EVENT SHALL LESSEE BE LIABLE FOR OR HAVE ANY DUTY FOR INDEMNIFICATION OR CONTRIBUTION TO LESSOR OR ANY PARTY AFFILIATED WITH LESSOR FOR ANY CLAIMED INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR FOR ANY DAMAGES CONSISTING OF DAMAGES FOR LOSS OF USE, REVENUE, PROFIT, BUSINESS OPPORTUNITIES AND THE LIKE, OR DEPRECIATION OR DIMINUTION IN VALUE OF THE AIRCRAFT EVEN IF LESSEE HAD BEEN ADVISED, OR KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES ARISING OUT OF OR RELATED TO THIS LEASE.
**SECTION 9. NOTICES**. All communications, declarations, demands, consents, directions, approvals, instructions, requests and notices required or permitted by this Agreement shall be in writing and shall be deemed to have been duly given or made when delivered by hand, or on the next business day when sent by overnight courier, or by registered or certified mail, in each case at the address set forth below:
| | |
| --- | --- |
| **If to Lessor:** | [Mr. Donnelly’s limited liability company] |
| | |
| **If to Lessee:** | Textron Inc. |
| | 40 Westminster Street |
| | Providence, RI 02903 |
| | Tel: 401-457-2338 |
| | Attn: Director of Aviation | | 914 |
agreement_25.md | **SECTION 10. MISCELLANEOUS**. This Agreement constitutes the entire agreement, both written and oral, between the parties or their respective representatives with respect to the lease of the Aircraft and is not intended to confer upon any other person any rights or remedies hereunder not expressly granted thereto. This Agreement shall not be further amended or modified unless in writing duly signed by the parties hereto. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns. This Agreement may not be assigned by any party without the prior written consent of the other party. The provisions of this Agreement shall be deemed independent and severable and the invalidity, partial invalidity or unenforceability of any one provision or portion of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability and any prohibition or unenforceability in any particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. For U.S. federal income tax purposes, this Agreement is intended to qualify as an “accountable plan” under Treasury Regulation section 1.62-2. The headings
5 | 915 |
agreement_25.md | herein are inserted only for convenience and shall not affect the interpretation of this Agreement. No delay or omission in the exercise or enforcement or any right or remedy hereunder by either party shall be construed as a waiver of such right or remedy. All remedies, rights, undertakings, obligations, and agreements contained herein shall be cumulative and not mutually exclusive, and in addition to all other rights and remedies which either party possesses at law or in equity. Neither Lessor nor Lessee shall be liable for any failure or default hereunder if such failure or default is due to Acts of God or the public enemy, civil war or insurrection or riots, fires or explosions or serious accidents, strikes or labor disputes, inability, after exercising all due diligence, to obtain necessary materials or equipment from the manufacturers thereof or any other cause beyond reasonable control. This Agreement shall be governed in all respects, including validity, interpretation and effect, by the laws of the State of Rhode Island without giving effect to the principles of conflicts of law thereunder. This Agreement may be executed in one or more counterparts each of which shall be deemed an original, all of which together shall constitute one and the same agreement.
[Remainder of Page Intentionally Left Blank]
6 | 916 |
agreement_25.md | **SECTION 11. TRUTH IN LEASING**.
(a) LESSOR HEREBY CERTIFIES THAT THE AIRCRAFT HAS BEEN INSPECTED AND MAINTAINED WITHIN THE 12 MONTH PERIOD PRECEDING THE DATE OF THIS AGREEMENT IN ACCORDANCE WITH THE PROVISIONS OF FAR PART 91 AND ALL APPLICABLE REQUIREMENTS FOR THE MAINTENANCE AND INSPECTION THEREUNDER HAVE BEEN MET.
(b) THE PARTIES HERETO CERTIFY THAT DURING THE TERM OF THIS AGREEMENT AND FOR OPERATIONS CONDUCTED HEREUNDER, THE AIRCRAFT WILL BE MAINTAINED AND INSPECTED IN ACCORDANCE WITH THE PROVISIONS OF PART 91 OF THE FARs.
(c) LESSEE AGREES, CERTIFIES AND KNOWINGLY ACKNOWLEDGES THAT WHEN THE AIRCRAFT IS OPERATED UNDER THIS AGREEMENT, LESSEE SHALL HAVE OPERATIONAL CONTROL AND SHALL BE KNOWN AS, CONSIDERED, AND SHALL IN FACT BE THE OPERATOR OF THE AIRCRAFT. LESSEE CERTIFIES THAT IT UNDERSTANDS THE EXTENT OF ITS RESPONSIBILITIES, SET FORTH HEREIN, FOR COMPLIANCE WITH APPLICABLE FEDERAL AVIATION REGULATIONS.
(d) THE PARTIES UNDERSTAND THAT AN EXPLANATION OF FACTORS AND PERTINENT FEDERAL AVIATION REGULATIONS BEARING ON OPERATIONAL CONTROL CAN BE OBTAINED FROM THE LOCAL FAA FLIGHT STANDARDS DISTRICT OFFICE, GENERAL AVIATION DISTRICT OFFICE or AIR CARRIER DISTRICT OFFICE). | 917 |
agreement_25.md | (e) LESSEE CERTIFIES THAT IT WILL SEND A TRUE COPY OF THIS EXECUTED AGREEMENT TO: AIRCRAFT REGISTRATION BRANCH, ATTN: TECHNICAL SECTION, P.O. BOX 25724, OKLAHOMA CITY, OKLAHOMA, 73125, WITHIN 24 HOURS OF ITS EXECUTION, AS PROVIDED BY FAR 91.23(c)(1) AND THAT A TRUE COPY OF THIS AGREEMENT SHALL BE CARRIED ON THE AIRCRAFT AT ALL TIMES, AND SHALL BE MADE AVAILABLE FOR INSPECTION UPON REQUEST BY AN APPROPRIATELY CONSTITUTED IDENTIFIED REPRESENTATIVE OF THE ADMINISTRATOR OF THE FAA.
**IN WITNESS WHEREOF**, Lessor and Lessee have each caused this Aircraft Dry Lease Agreement to be duly executed as of the date set forth above.
| | | |
| --- | --- | --- |
| LESSOR: | | LESSEE: |
| | | | |
| **[Mr. Donnelly’s limited liability company]** | | **TEXTRON INC.** |
| | | |
| | | | | |
| By: | /s/Scott C. Donnelly | | By: | /s/ E. Robert Lupone |
| | | | | |
| Name: | Scott C. Donnelly | | E. Robert Lupone |
| | | | |
| Title: | Member | | Executive Vice President and General Counsel |
*Signature Page* | 918 |
agreement_25.md | **Schedule A**
Maintenance Reserves
Maintenance Reserves shall consist of the hourly payments due under the Pro Parts and any other hourly maintenance service program agreements that apply to the Aircraft, (or the engines or any part thereof) for the flight hours operated by Lessee during its periods of possession of the Aircraft.
*Schedule A* | 919 |
agreement_25.md | **Schedule B**
**Delivery/Redelivery Log**
Aircraft Make/Model: Cessna 525B (Citation CJ3)
FAA Registration Number:
Manufacturer’s Serial Number:
| | | |
| --- | --- | --- |
| Lessor: [Mr. Donnelly’s limited liability company] | Non-Exclusive Lessees: | (i) Scott C. Donnelly |
| | | (ii) Textron, Inc. | | 920 |
agreement_25.md | | | | | |
| --- | --- | --- | --- |
| Lessee Accepting Delivery | Acceptance of Delivery by Specified Lessee | Total Flight Hours - Delivery to Redelivery | Acceptance of Redelivery by Lessor |
|
\_\_\_\_ Lessee Donnelly
\_\_\_\_ Lessee Textron
|
Date: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Time: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Signature: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Name: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
| |
Date: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Time: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Signature: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Name: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
|
|
\_\_\_\_ Lessee Donnelly
\_\_\_\_ Lessee Textron
|
Date: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ | 921 |
agreement_25.md | Date: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Time: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Signature: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Name: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
| |
Date: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Time: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Signature: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Name: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
|
|
\_\_\_\_ Lessee Donnelly
\_\_\_\_ Lessee Textron
|
Date: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Time: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Signature: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Name: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
| | | 922 |
agreement_25.md | | |
Date: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Time: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Signature: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Name: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
|
|
\_\_\_\_ Lessee Donnelly
\_\_\_\_ Lessee Textron
|
Date: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Time: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Signature: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Name: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
| |
Date: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Time: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Signature: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Name: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
|
|
\_\_\_\_ Lessee Donnelly | 923 |
agreement_25.md | |
|
\_\_\_\_ Lessee Donnelly
\_\_\_\_ Lessee Textron
|
Date: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Time: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Signature: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Name: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
| |
Date: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Time: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Signature: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Name: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
|
|
\_\_\_\_ Lessee Donnelly
\_\_\_\_ Lessee Textron
|
Date: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Time: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Signature: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ | 924 |
agreement_25.md | Signature: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Name: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
| |
Date: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Time: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Signature: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Name: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
|
|
\_\_\_\_ Lessee Donnelly
\_\_\_\_ Lessee Textron
|
Date: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Time: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Signature: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Name: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
| |
Date: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Time: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ | 925 |
agreement_25.md | Time: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Signature: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Name: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
| | 926 |
agreement_25.md | *Schedule B* | 927 |
agreement_26.md | EX-10.17
18
y12303a1exv10w17.txt
EX-10.17: AIRCRAFT LEASE AGREEMENT
CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT
EXHIBIT 10.17
EXECUTION COPY
AIRCRAFT LEASE AGREEMENT
Dated as of
December 23, 2004
between
WELLS FARGO BANK NORTHWEST, N.A.,
NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY AS
TRUSTEE UNDER THE TRUST AGREEMENT
as
Lessor
and
COMPANIA PANAMENA DE AVIACION, S.A.
as
Lessee
in respect of one
Boeing B737-800 Aircraft
Manufacturer's Serial Number 29670
INDEX
CLAUSE PAGE
TABLE OF CONTENTS
PAGE
~~1. INTERPRETATION......................................................... 6
1.1 DEFINITIONS....................................................... 6
1.2 CONSTRUCTION:..................................................... 30
2. REPRESENTATIONS AND WARRANTIES......................................... 31
2.1 LESSEE'S REPRESENTATIONS AND WARRANTIES:.......................... 31
2.2 LESSEE'S FURTHER REPRESENTATIONS AND WARRANTIES:.................. 35
2.3 REPETITION:....................................................... 36
2.4 LESSOR'S REPRESENTATIONS AND WARRANTIES:.......................... 37
2.5 REPETITION:....................................................... 38
3. CONDITIONS PRECEDENT................................................... 38
3.1 CONDITIONS PRECEDENT:............................................. 38
3.2 FURTHER CONDITIONS PRECEDENT:..................................... 41 | 928 |
agreement_26.md | 3.2 FURTHER CONDITIONS PRECEDENT:..................................... 41
3.3 LESSEE CONDITIONS PRECEDENT:...................................... 41
3.4 WAIVER:........................................................... 42
3.5 POST-CLOSING MATTERS:............................................. 42
4. COMMENCEMENT........................................................... 43
4.1 LEASING:.......................................................... 43
4.2 DELIVERY:......................................................... 43
4.3 DELAYED DELIVERY:................................................. 43
4.4 TERMINATION FOR NON-DELIVERY:..................................... 44
4.5 PURCHASE OF AIRCRAFT:............................................. 44
5. PAYMENTS............................................................... 44
5.1 SECURITY DEPOSIT AND LETTER OF CREDIT:............................ 44
5.2 RENTAL PERIODS:................................................... 45
5.3 RENT:............................................................. 45~~
i
PAGE
~~5.4 SUPPLEMENTAL RENT:................................................ 45
5.5 PAYMENTS:......................................................... 51
5.6 DEFAULT INTEREST:................................................. 51
5.7 WITHHOLDING:...................................................... 51
5.8 TAX INDEMNITY:.................................................... 52
5.9 SALES TAX:........................................................ 52
5.10 VALUE ADDED TAX:.................................................. 53
5.11 PAYMENTS; TAX REPORTS; INFORMATION:............................... 53
5.12 CONTEST OF CLAIM FOR TAX.......................................... 55
5.13 INDEMNITIES TO BE PAID ON AN AFTER-TAX BASIS/SURVIVAL:............ 58
5.14 ABSOLUTE OBLIGATIONS:............................................. 58 | 929 |
agreement_26.md | 5.14 ABSOLUTE OBLIGATIONS:............................................. 58
5.15 SECURITY:......................................................... 59
5.16 CURRENCY INDEMNITY:............................................... 60
5.17 SETOFF:........................................................... 61
6. MANUFACTURER'S WARRANTIES.............................................. 61
7. LESSOR'S COVENANTS..................................................... 62
7.1 QUIET ENJOYMENT:.................................................. 62
7.2 LESSOR OBLIGATIONS FOLLOWING FINAL EXPIRY DATE:................... 62
7.3 UNAPPLIED SUPPLEMENTAL RENT:...................................... 63
7.4 MAINTENANCE CONTRIBUTIONS:........................................ 63
7.5 CLAIMS FOR REIMBURSEMENT:......................................... 64
8. LESSEE'S COVENANTS..................................................... 65
8.1 DURATION:......................................................... 65
8.2 INFORMATION:...................................................... 65
8.3 LAWFUL AND SAFE OPERATION:........................................ 67
8.4 OUTGOINGS:........................................................ 68
8.5 SUB-LEASING:...................................................... 69
8.6 INSPECTION:....................................................... 70
8.7 TITLE:............................................................ 70
8.8 GENERAL:.......................................................... 72
8.9 NON-DISCRIMINATION:............................................... 74~~
ii
PAGE
~~8.10 RECORDS:.......................................................... 74
8.11 PROTECTION:....................................................... 75
8.12 MAINTENANCE AND REPAIR:........................................... 77
8.13 PERMANENT REPLACEMENT OF ENGINES AND PARTS:....................... 79 | 930 |
agreement_26.md | 8.13 PERMANENT REPLACEMENT OF ENGINES AND PARTS:....................... 79
8.14 REMOVAL AND INTERCHANGE OF ENGINES:............................... 80
8.15 REMOVAL AND INTERCHANGE OF PARTS:................................. 81
8.16 TEMPORARY INSTALLATION OF ENGINES AND PARTS:...................... 81
8.17 POOLING OF ENGINES AND PARTS:..................................... 82
8.18 EQUIPMENT CHANGES:................................................ 82
8.19 THIRD PARTY:...................................................... 83
9. INSURANCE.............................................................. 83
9.1 INSURANCES:....................................................... 83
9.2 REQUIREMENTS...................................................... 84
9.3 STANDARDS......................................................... 84
9.4 CHANGE............................................................ 84
9.5 INSURANCE COVENANTS............................................... 85
9.6 RENEWAL OF INSURANCES............................................. 86
9.7 FAILURE TO INSURE................................................. 86
9.8 CONTINUING INSURANCE FOR INDEMNITY................................ 87
10. INDEMNITY.............................................................. 87
10.1 GENERAL:.......................................................... 87
10.2 NOTIFICATION:..................................................... 89
10.3 CONTEST:.......................................................... 89
10.4 SUBROGRATION:..................................................... 90
10.5 DURATION:......................................................... 91
11. EVENTS OF LOSS......................................................... 91
11.1 EVENTS OF LOSS.................................................... 91
11.2 REQUISITION:...................................................... 92
12. RETURN OF AIRCRAFT..................................................... 93
12.1 RETURN:........................................................... 93 | 931 |
agreement_26.md | 12. RETURN OF AIRCRAFT..................................................... 93
12.1 RETURN:........................................................... 93
12.2 FINAL INSPECTION:................................................. 93~~
iii
PAGE
~~12.3 NON-COMPLIANCE:................................................... 93
12.4 ACKNOWLEDGEMENT:.................................................. 94
12.5 REDELIVERY MAINTENANCE ADJUSTMENT:................................ 94
12.6 EXPORT DOCUMENTS:................................................. 94
12.7 MAINTENANCE PROGRAM............................................... 95
12.8 FUEL:............................................................. 95
13. DEFAULT................................................................ 95
13.1 EVENTS:........................................................... 95
13.2 RIGHTS AND REMEDIES:.............................................. 100
13.3 POWER OF ATTORNEY:................................................ 104
14. ASSIGNMENT............................................................. 105
14.1 ASSIGNMENT BY LESSEE:............................................. 105
14.2 ASSIGNMENT BY LESSOR:............................................. 105
14.3 GRANTS OF SECURITY INTERESTS:..................................... 106
15. MISCELLANEOUS.......................................................... 107
15.1 SURVIVAL:......................................................... 107
15.2 WAIVERS, REMEDIES CUMULATIVE:..................................... 107
15.3 DELEGATION:....................................................... 107
15.4 CERTIFICATES:..................................................... 107
15.5 APPROPRIATION:.................................................... 107
15.6 SEVERABILITY:..................................................... 108
15.7 REMEDY:........................................................... 108
15.8 EXPENSES:......................................................... 108
15.9 TIME OF ESSENCE:.................................................. 109 | 932 |
agreement_26.md | 15.8 EXPENSES:......................................................... 108
15.9 TIME OF ESSENCE:.................................................. 109
15.10 NOTICES:.......................................................... 109
15.11 LAW AND JURISDICTION:............................................. 110
15.12 SOLE AND ENTIRE AGREEMENT:........................................ 112
15.13 INDEMNITIES:...................................................... 113
15.14 COUNTERPARTS:..................................................... 113
15.15 LANGUAGE:......................................................... 113
15.16 NO BROKERS:....................................................... 113~~
iv
PAGE
~~15.17 CONFIDENTIALITY:.................................................. 113
15.18 LIABILITY OF LESSOR LIMITED:...................................... 114
16. DISCLAIMERS AND WAIVERS................................................ 114
16.1 EXCLUSION:........................................................ 115
16.2 WAIVER:........................................................... 116
16.3 DISCLAIMER OF CONSEQUENTIAL DAMAGES:.............................. 116
16.4 CONFIRMATION:..................................................... 116
SCHEDULE 1 PART 1 DESCRIPTION OF AIRCRAFT.................................... 117
SCHEDULE 2 FORM OF ACCEPTANCE CERTIFICATE.................................... 131
SCHEDULE 3 REDELIVERY CONDITIONS AND REDELIVERY MAINTENANCE ADJUSTMENT....... 137
SCHEDULE 4 INSURANCE REQUIREMENTS............................................ 140
SCHEDULE 5 ACKNOWLEDGEMENTS IN CONNECTION WITH FINANCING..................... 144
SCHEDULE 6 FORM OF MONTHLY STATUS REPORT..................................... 150
SCHEDULE 7 ECONOMIC VARIABLES................................................ 152
SCHEDULE 8 FORM OF LEASE SUPPLEMENT NO. 1.................................... 157
SCHEDULE 9 FORM OF IRREVOCABLE POWER OF ATTORNEY............................. 160 | 933 |
agreement_26.md | SCHEDULE 9 FORM OF IRREVOCABLE POWER OF ATTORNEY............................. 160
SCHEDULE 10 FORM OF COPA HOLDINGS GUARANTEE................................... 1
SCHEDULE 11 AIRWORTHINESS DIRECTIVE COST SHARING FORMULA...................... 13
SCHEDULE 12 FORM of WARRANTY ASSIGNMENT....................................... 14~~
iv
THIS AIRCRAFT LEASE AGREEMENT (this "Agreement") is made as of the 23rd day of
December, 2004 between:
(1) WELLS FARGO BANK NORTHWEST, N.A., a national banking association formed
under the federal laws of the United States of America, with its
principal place of business at 299 South Main Street, Salt Lake City,
Utah 84111, not in its individual capacity (except when referred to as
"WFB"), but solely as trustee under the Trust Agreement (as defined
below) (the "Lessor"); and
(2) COMPANIA PANAMENA DE AVIACION, S.A., a corporation formed under the
laws of the Republic of Panama with its principal place of business at
Avenida Justo Arosemena y Calle 39, Apartado 1572, Panama 1, Republic
of Panama ("Lessee").
WHEREAS: Lessor wishes to lease to Lessee and Lessee is willing to
lease from Lessor the Aircraft on the terms of this Agreement.
IT IS AGREED as follows:
1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement the following expressions have the meanings set out
opposite:
AAC the Autoridad de Aeronautica Civil or any
successor agency charged with supervising
civil aviation in the Republic of Panama.
ACCEPTANCE CERTIFICATE a certificate of the Lessor substantially in
the form set out in Schedule 2. | 934 |
agreement_26.md | ACCEPTANCE CERTIFICATE a certificate of the Lessor substantially in
the form set out in Schedule 2.
AFFILIATE as to any Person, any other Person that,
directly or indirectly, is in control of, is
controlled by, or is under common control
with, such Person. For purposes of this
definition, "control" of a Person means the
power, directly or indirectly, either to (a)
vote 50% or more of the securities having
ordinary voting power for the election of
directors (or persons performing similar
functions) of such Person or (b) direct or
cause the direction of the management and
policies of such person, whether by contract
or otherwise.
AFTER-TAX BASIS means, with respect to any amount (an
"Amount") required by any Transaction
Document to be paid on an "After Tax Basis"
6
to or for the benefit of any Person, such
Amount plus an additional amount that will
cause the sum of such amounts, after
subtracting the amount of all Taxes
(including Lessor Taxes) required to be paid
by such Person as a result of the receipt
(actual or constructive) or accrual of such
Amount plus the additional amount payable
pursuant to this sentence (net of any
current actual reduction in such Person's
liability for Lessor Taxes caused by the
payment of such Amount) to be equal to the
amount that such Person would receive if
such Taxes were not required to be paid by
such Person.
AGREED MAINTENANCE PERFORMER unless otherwise agreed by Lessor and
Lessee, a Person approved by the FAA to
perform maintenance and/or modification
services on commercial aircraft and/or
commercial aircraft engines.
AGREED VALUE has the meaning specified in Schedule 7.
AIR AUTHORITY the AAC. | 935 |
agreement_26.md | AGREED VALUE has the meaning specified in Schedule 7.
AIR AUTHORITY the AAC.
AIRCRAFT the aircraft described in Part 1 of
Schedule 1 (which term includes, unless the
context otherwise requires, all Engines,
Parts and, except in respect of Clause 9 and
Schedule 4 hereof, Aircraft Documents).
AIRCRAFT DOCUMENTS the documents, data, manuals and records
identified in Part 2 of Schedule 1 and all
additions, renewals, revisions and
replacements from time to time made in
accordance with this Agreement.
AIRCRAFT PURCHASE AGREEMENT the aircraft sale and purchase agreement
dated as of October 1, 2003 between the
Initial Purchaser and the Beneficiary
insofar as it relates to the Aircraft
between such parties in connection
therewith.
AIRFRAME the Aircraft, excluding the Engines and
Aircraft Documents.
AIRFRAME 6C/24,000 FLIGHT HOUR means the 6C/24,000 Flight Hour block check
7
BLOCK STRUCTURAL CHECK including inspections, and system check,
all in accordance with the Approved
Maintenance Program. Included are all
routine and non-routine 6C check tasks and
any maintenance or replacement of any part
failing any 6C check routine requirement for
an operational or functional test of the
part while installed on the Aircraft.
AIRFRAME 6C/24,000 FLIGHT HOUR has the meaning specified in Clause
BLOCK STRUCTURAL CHECK 5.4(a)(i).
SUPPLEMENTAL RENT
AIRFRAME 6C/24,000 FLIGHT HOUR has the meaning specified in Schedule 7.
BLOCK STRUCTURAL CHECK SUPPLEMENTAL
RENT RATE
AIRWORTHINESS DIRECTIVE OR AD an airworthiness directive issued by the FAA
and/or the AAC. | 936 |
agreement_26.md | AIRWORTHINESS DIRECTIVE OR AD an airworthiness directive issued by the FAA
and/or the AAC.
ANNUAL EXPIRY DATE each annual anniversary date of the Delivery
Date which occurs before (or on) the Final
Expiry Date.
ANNUAL SUPPLEMENTAL RENT ADJUSTMENT has the meaning specified in Schedule 7.
APPRAISAL PROCEDURE the following procedure for determining the
"fair market rental value" of the Aircraft
or any part thereof pursuant to Clause
13.2(c)(ii)(b): (a) Lessor shall select an
internationally recognized independent
aircraft appraiser experienced in appraising
aircraft of the make and model of the
Aircraft in its sole and absolute discretion
who shall make a determination of "fair
market rental value" of the Aircraft or part
thereof in accordance with the terms hereof
and customary industry practices; and (b)
the fees and expenses of the appraiser shall
be paid by Lessee. "Fair market rental
value" shall mean the value determined by an
appraisal completed on an "as-is" and
"where-is" basis.
APPROVED MAINTENANCE PROGRAM OR an Air Authority approved maintenance
LESSEE'S APPROVED MAINTENANCE program for the Aircraft based on the
8
PROGRAM Maintenance Planning Document, as amended by
Lessee based on Lessee's operating
experience, and encompassing scheduled
maintenance (including block maintenance),
condition-monitored maintenance, and/or
on-condition maintenance of Airframe,
Engines and Parts, including servicing,
testing, preventive maintenance, repairs,
structural inspections, system checks,
overhauls, approved modifications, mandatory
service bulletins, engineering orders,
airworthiness directives, corrosion control,
inspections and treatments. | 937 |
agreement_26.md | APU the auxiliary power unit installed on the
Aircraft on the Delivery Date or any
replacement auxiliary power unit installed
in accordance with this Agreement, as
applicable.
APU PERFORMANCE RESTORATION means an off-wing APU shop visits including
disassembly, inspection, component repair
and balancing, testing and re-assembly of
the relevant APU, accomplished in accordance
with the APU manufacturer's component
maintenance manual, with a scheduled Life
Limited Part and Airworthiness Directive
release of no less than 6,000 Cycles and 3
years and on-condition release of no less
than 9,000 Flight Hours and 6,000 Cycles and
3 years.
APU SUPPLEMENTAL RENT has the meaning specified in Clause
5.4(a)(iv).
APU SUPPLEMENTAL RENT RATE has the meaning specified in Schedule 7.
ASSIGNMENT an assignment by Lessor of its right, title
and interest in and to this Agreement in
favor of Financing Parties.
ASSUMED ANNUAL UTILIZATION has the meaning specified in Schedule 7.
ASSUMED ANNUAL UTILIZATION has the meaning specified in Schedule 7.
ADJUSTMENT TABLE
ASSUMED LIBOR RATE has the meaning specified in Schedule 7.
9
ASSUMED RATIO has the meaning specified in Schedule 7.
ASSUMED RATIO ADJUSTMENT TABLE has the meaning specified in Schedule 7.
ASSUMED RENT has the meaning specified in Schedule 7.
BENEFICIARY RBS Aerospace Limited, a limited company
incorporated in Ireland with registered
address at 1 George's Quay Plaza, George's
Quay, Dublin 2, Ireland. | 938 |
agreement_26.md | BILL OF SALE the full warranty bill of sale duly executed
and delivered by Initial Purchaser to
Lessor, pursuant to and in accordance with
the terms of the Aircraft Purchase
Agreement.
BOEING The Boeing Company, a Delaware corporation.
BUSINESS DAY means, in the case of payments, any day
(other than a Saturday or Sunday) on which
banks are open for business in New York
City, New York, USA or, in all other cases,
any day (other than a Saturday or Sunday) on
which banks are open for business in New
York City, New York, USA, London, England,
Dublin, Ireland and in the Republic of
Panama.
COMMONLY CONTROLLED ENTITY an entity, whether or not incorporated, that
is under common control with Lessee within
the meaning of Section 4001 of ERISA or is
part of a group that includes Lessee and
that is treated as a single employer under
Section 414 of the Internal Revenue Code.
COPA HOLDINGS GUARANTEE a guarantee agreement substantially in the
form of Schedule 10.
COUNTRY OF INCORPORATION Republic of Panama.
COUNTRY OF REGISTRATION Republic of Panama.
CROSS-DEFAULT AMOUNT has the meaning specified in Schedule 7.
CYCLE one takeoff and landing of the Aircraft.
10
DAMAGE NOTIFICATION THRESHOLD has the meaning specified in Schedule 7.
DEFAULT any Event of Default and any event which
with the giving of notice or lapse of time,
or both, would constitute an Event of
Default.
DELIVERY the delivery of the Aircraft by Lessor to
Lessee pursuant to this Agreement.
DELIVERY DATE the date on which Delivery of the Aircraft
occurs in accordance with this Agreement.
DELIVERY LOCATION Boeing Field, Seattle, Washington or such
other location as Lessor and Lessee may
agree. | 939 |
agreement_26.md | DELIVERY LOCATION Boeing Field, Seattle, Washington or such
other location as Lessor and Lessee may
agree.
DELTA Delta Air Lines, Inc.
DISCOUNT RATE has the meaning specified in Schedule 7.
DOLLAR(S) AND $ the lawful currency of the United States of
America.
ENGINE whether or not installed on the Aircraft:
(a) each engine of the manufacture and
model specified in Part 1 of
Schedule 1 which Lessor delivers to
Lessee with the Aircraft on the
Delivery Date, such engines being
described as to serial numbers on
the Certificate of Acceptance; or
(b) any engine which has replaced that
engine, title to which has or
should have, passed to Lessor in
accordance with this Agreement;
and in each case includes all modules and
Parts from time to time belonging to or
installed in that engine but excludes any
properly replaced engine title to which has,
or should have, passed to Lessee pursuant to
this Agreement.
ENGINE CYCLE the operation of an engine installed on an
aircraft from and
11
including a take-off to and including the
landing of that aircraft.
ENGINE EVENT OF LOSS the occurrence with respect to an Engine
only, whether or not installed on the
Airframe, of any of those events described
in the definition of Event of Loss.
ENGINE FLIGHT HOUR each hour or part thereof (rounded to the
nearest 1/100th of an Hour) that an engine
is operated, elapsing from the moment the
wheels of the airframe on which such engine
is installed leave the ground until the
wheels of such airframe next touch the
ground.
ENGINE LLP SUPPLEMENTAL RENT has the meaning specified in Clause
5.4(a)(ii).
ENGINE LLP SUPPLEMENTAL RENT RATE has the meaning specified in Schedule 7. | 940 |
agreement_26.md | ENGINE LLP SUPPLEMENTAL RENT RATE has the meaning specified in Schedule 7.
ENGINE MANUFACTURER means CFM International, Inc.
ENGINE PERFORMANCE RESTORATION means an off-wing engine shop visit
including performance restoration or full
overhaul of core modules of the relevant
Engine, accomplished in accordance with the
Engine manufacturer's workscope planning
guide as customized for Lessee, with a
scheduled Life Limited Part and
Airworthiness Directive release of no less
than 7,500 Cycles and 3 years and
on-condition release of no less than 11,000
Flight Hours and 7,500 Cycles and 3 years.
ENGINE SUPPLEMENTAL RENT has the meaning specified in Clause
5.4(a)(iii).
ENGINE SUPPLEMENTAL RENT RATE has the meaning specified in Schedule 7.
ERISA means the Employee Retirement Income
Security Act of 1974, as amended.
EVENT OF DEFAULT an event specified in Clause 13.1.
EVENT OF LOSS with respect to the Aircraft, the Airframe
or an Engine:
(a) the actual or constructive total
loss of such property (including
any damage
12
to such property which results in
an insurance settlement on the
basis of a total loss, or
requisition for use or hire which
results in an insurance settlement
on the basis of a total loss);
(b) such property being destroyed,
damaged beyond repair or
permanently rendered unfit for
normal use for any reason
whatsoever;
(c) the requisition of title, or other
compulsory acquisition, capture,
seizure, deprivation, confiscation
or detention (collectively, a
"requisition") for any reason of
such property by the government of
the Country of Registration or
other authority, but excluding
requisition for use or hire not
involving requisition of title; or | 941 |
agreement_26.md | (d) the hijacking, theft, condemnation,
confiscation, seizure or
requisition (other than a
requisition of title) for use or
hire of such property for (i) more
than sixty (60) days; or (ii) if
earlier, a period ending on the
Final Expiry Date.
If an Event of Loss occurs with respect to
the Airframe, an Event of Loss with respect
to the Aircraft (including the Airframe and
the Engine) shall be deemed to have
occurred.
EXCLUDED COUNTRY (x) Iraq and Libya, and (y) any country to
which the use of the Aircraft is prohibited
by (i) the Dual-Use and Related Goods
(Export Control) Regulations 1996 pursuant
to the European Communities Act 1972, (ii)
the Dual-Use and Related Goods (Export
Control) (Amendment) Regulations 1997
pursuant to the European Communities Act
1972, (iii) the United States Export
Administration Act 1979 (as amended), (iv)
any successor legislation for and/or the
export administration regulations
promulgated under the foregoing
13
or (iv) any sanctions orders or legislation
from time to time promulgated by any of the
United Nations, the European Union or any
Government Entity of the Country of
Registration or any other country having
jurisdiction over Lessor or RBS, the effect
of which prohibits the use of Boeing
aircraft operated by Lessee on flights to
and from such country.
FAA the Federal Aviation Administration of the
United States of America and any successor
thereof.
FAR means the Federal Aviation Regulations set
forth in Title 14 of the United States Code
of Federal Regulations, as amended and
modified from time to time.
FINAL DELIVERY DATE December 31, 2005. | 942 |
agreement_26.md | FINAL DELIVERY DATE December 31, 2005.
FINAL EXPIRY DATE the date falling 90 months after the
Delivery Date, or if earlier the date on
which:
(a) Lessor receives the Agreed Value
and other amounts then due and
payable to it by Lessee following
an Event of Loss pursuant to Clause
11; or
(b) the Term of this Agreement shall
end in accordance with Clause 13.2.
FINAL INSPECTION has the meaning specified in Clause 1.1 of
Schedule 3 hereto.
FINANCIAL INDEBTEDNESS means any indebtedness in respect of:
(a) moneys borrowed or raised;
(b) any liability under any debenture,
bond, note, loan stock, acceptance,
documentary credit or other
security;
(c) obligations under finance leases;
(d) the acquisition cost of any asset
to the extent payable before or
after the time
14
of acquisition or possession, not
being indebtedness in respect of
the purchase of goods or services
in the ordinary course of trading,
payment for which is deferred for a
period of not greater than thirty
(30) days or, in respect of goods
or services the purchase price of
which is not material, ninety (90)
days; or
(e) any guarantee, indemnity or similar
assurance against financial loss of
any person in respect of the above. | 943 |
agreement_26.md | (e) any guarantee, indemnity or similar
assurance against financial loss of
any person in respect of the above.
FINANCING PARTIES RBS and such other Persons as may from time
to time provide to Owner and/or Lessor debt,
equity or other forms of financing with
respect to the Aircraft, and/or for whose
benefit security over, or rights relating
to, the Aircraft and/or this Agreement is
granted by Owner and/or Lessor, with or
without recourse, whether at the request of
Owner and/or Lessor. FINANCING PARTIES'
REPRESENTATIVE such Person, if any, as may
be designated as such from time to time in a
written notice from Lessor to Lessee.
FLIGHT HOUR each hour (computed to the nearest hundredth
of an hour) elapsing from the moment the
wheels of the Aircraft leave the ground on
take off until the wheels of the Aircraft
next touch the ground.
GAAP means generally accepted accounting
principles in effect from time to time in
the Republic of Panama provided such
standards are consistent with international
accounting standards; otherwise, in
accordance with international accounting
standards; or, should at any time, Lessee or
Guarantor, as applicable, elect, at its sole
discretion to maintain their financial
statements in accordance with US GAAP,
generally accepted accounting principles
from time to
15
time in effect in the United States.
GENEVA CONVENTION means the Convention on the International
Recognition of Rights in Aircraft signed at
Geneva, Switzerland on 19 June 1948, and
amended from time to time.
GOVERNING LAW the laws of the State of New York.
GOVERNMENT ENTITY (a) any national government, political
subdivision thereof, or local
jurisdiction therein; | 944 |
agreement_26.md | GOVERNMENT ENTITY (a) any national government, political
subdivision thereof, or local
jurisdiction therein;
(b) any instrumentality, board,
commission, court, or agency of any
thereof, however constituted; and
(c) any association, organization, or
institution of which any of the
above is a member or to whose
jurisdiction any thereof is
subject.
GUARANTOR Copa Holdings, S.A.
HABITUAL BASE Republic of Panama.
HEAD LEASE if Owner is not the same entity as Lessor,
any aircraft lease agreement between Owner
and Lessor in respect of the Aircraft.
INDEMNIFIED TAX has the meaning specified in Clause 5.11(b).
INDEMNITEE each of the following: (i) Beneficiary,
(ii) Initial Purchaser (but only for claims
arising against Initial Purchaser solely as
a result of Initial Purchaser being a party
in the chain of title and where no act or
omission of Initial Purchaser, its
successors, assigns, officers, or employees,
allegedly contributed to the event leading
to indemnification requirement), (iii)
Lessor and Owner, (iv) each Financing Party,
(v) each security trustee or other Financing
Parties' Representative, and (vi) each
shareholder, Subsidiary, Affiliate,
beneficiary, member, director, officer,
agent and employee of any of the
16
Persons described in items (i) - (v).
INITIAL PURCHASER means Delta.
INSURANCES has the meaning specified in Clause 9.1
INTERNAL REVENUE CODE the U.S. Internal Revenue Code of 1986, as
amended.
INTEREST RATE the rate equal to LIBOR during the
applicable period plus three and one-half
percent (3.5%) per annum, but not to exceed
the maximum amount permitted by law. | 945 |
agreement_26.md | JAA the body referred to as the "Joint Aviation
Authority" established by the members of the
European Civil Aviation Conference. The term
"JAA" shall also include the European
Aviation Safety Agency ("EASA") as the
context admits or requires.
LANDING GEAR the landing gear assembly of the Aircraft
meaning the complete strut assembly,
consisting of inner and outer cylinders and
all associated parts that comprise each
landing gear assembly as listed in the
Aircraft Documents including side struts,
braces, uplock and downlock mechanisms, and
electrical wiring and hydraulic hardware but
excluding ratable parts including, without
limitation, wheels, tires, brakes,
transducers and switch assemblies.
LANDING GEAR SUPPLEMENTAL RENT has the meaning specified in Clause
5.4(a)(v).
LANDING GEAR SUPPLEMENTAL RENT RATE has the meaning specified in Schedule 7.
LEASE SUPPLEMENT NO. 1 means a Lease Supplement No. 1 to this
Agreement substantially in the form of
Schedule 8 hereto, duly completed and
executed by Lessor and Lessee.
LESSEE CONTROLLED CONTEST has the meaning specified in Clause 5.11(c).
LESSEE POWER OF ATTORNEY means a Lessee Power of Attorney
17
substantially in the form of Schedule 9.
LESSOR LIEN (a) a Mortgage, an Assignment and any
other charge, pledge, lien,
security interest, hypothecation or
encumbrance whatsoever from time to
time created by or through Owner,
Lessor or Beneficiary in connection
with the financing of the Aircraft; | 946 |
agreement_26.md | (b) any other security interest or
encumbrance in respect of the
Aircraft which results from acts or
omissions of or claims against
Owner, Lessor or Beneficiary not
related to the transactions
contemplated by or permitted under
this Agreement or from claims for
which Lessee is not responsible
under this Agreement; and
(c) liens in respect of the Aircraft
for Lessor Taxes.
LESSOR TAX any of the following Taxes:
(a) any Tax imposed (by withholding or
otherwise) on, or calculated by
reference to, the gross or net
income (including any minimum Tax
or personal holding company tax),
profits (including any excess
profits Tax or accumulated earnings
Tax), gains, gross or net receipts,
capital, or net worth, corporate
franchise or conduct of business of
a Tax Indemnitee by any
jurisdiction under the laws of
which such Tax Indemnitee is
incorporated or otherwise organized
or in which such Tax Indemnitee has
an office or other fixed place of
business or is engaged in business,
provided that "Lessor Taxes" shall
not include (i) any Sales Tax or
(ii) any Tax imposed by any
Government Entity or other taxing
authority of any jurisdiction if
and to the extent that
18 | 947 |
agreement_26.md | 18
such Tax is a result of any
connection between Lessee or the
Aircraft, the Airframe, any Engine
or any Part or any interest in any
thereof with the jurisdiction
imposing the Tax, including,
without limitation, any one or more
of the following: (A) the
registration, use, operation, or
presence of the Aircraft, the
Airframe, any Engine or any Part or
any interest in any thereof in the
jurisdiction imposing the Tax, or
(B) the incorporation or other
organization of Lessee or any
Specified Person under the law of
the jurisdiction imposing the Tax,
or (C) the management, residence,
presence, place of business, acts,
activities or transactions of
Lessee or any Specified Person in
the jurisdiction imposing the Tax,
or (D) the payment of any amount
payable by or for the account of
Lessee or any Specified Person
pursuant to any Transaction
Document in or from the
jurisdiction imposing the Tax; or
(b) Taxes imposed with respect to any
period commencing (and, in the case
of (i), ending) or event occurring
(i) prior to the Delivery Date or
(ii) after the Final Expiry Date
and in either case, unrelated to
Lessor's dealings with Lessee with
respect to the transactions
contemplated by this Agreement; or
(c) any Tax imposed by any Government
Entity in the Country of
Registration on or with respect to
the sale, assignment, transfer or
other disposition of all or any
part of (i) Lessor's or Owner's
right, title and interest in the
Aircraft or this Agreement, (ii)
any Tax Indemnitee's interest in
Lessor or any Transaction Document
and (iii) any Financing
19 | 948 |
agreement_26.md | 19
Party's loan to the Owner relating
to, or security over, or rights
relating to, the Aircraft other
than any sale, assignment, transfer
or other disposition that occurs in
connection with (w) an Event of
Loss, or (x) an exercise of
remedies after the occurrence and
during the continuance of an Event
of Default, or (y) a substitution
or replacement of the Aircraft, the
Airframe, any Engine or any Part,
or (z) the maintenance, repair or
pooling of the Aircraft, the
Airframe, any Engine or any Part;
or
(d) any Tax caused directly by the
gross negligence or willful
misconduct of any Tax Indemnitee
(other than any gross negligence
caused by an act or omission of
Lessee or any Specified Person) or
the breach by Lessor of any
covenant of Lessor in this
Agreement; or
(e) any Tax imposed on or payable by a
Tax Indemnitee to the extent caused
directly by, and would not have
been imposed but for, the existence
of a Lessor Lien; or
(f) with respect to any Tax Indemnitee,
Taxes imposed to the extent the
same results from the failure by
such Tax Indemnitee to pay, or to
file any required Tax return or to
provide required information in
respect of, any Tax on a proper and
timely basis (provided, however,
that, with respect to any Tax
required to be paid or any Tax
return required to be filed solely
as a result of the transactions
contemplated by the Transaction
Documents, such Person has before
the due date for payment of such
Tax or the filing of such Tax
return either received a written
demand therefor or
20 | 949 |
agreement_26.md | 20
otherwise been made aware in
writing of the imposition of such
Tax and the due dates for payment
thereof or the filing of such Tax
return as applicable) other than
where any such failure arises as a
result of any breach by Lessee of
any provision of, or the default by
Lessee in the performance of, its
obligations under this Agreement or
as a result of any Event of Default
occurring or otherwise arising as a
result of the willful misconduct or
gross negligence of Lessee; or
(g) in the case of a transferee of a
Tax Indemnitee, Taxes to the extent
that the aggregate amount of such
Taxes exceeds the aggregate amount
of the Taxes that would have been
imposed on or payable by the
transferor Tax Indemnitee and for
which Lessee would have been
required to indemnify the
transferor Tax Indemnitee pursuant
to Clause 5.7, 5.8, 5.9 or 5.10
under applicable laws in effect on
the date of transfer; or
(h) Any Tax to the extent increased or
not reduced as a result of the
failure of a Tax Indemnitee to file
any Tax Document, to supply a tax
identification number or to comply
with any certification of tax
residence or other documentation
requirement of applicable law, in
each case, that is a condition to
the allowance of any exemption
from, reduction in rate of, or
other relief from, such Tax,
provided that (1) Lessee shall have
given such Tax Indemnitee timely
written notice of such requirement
and shall have delivered to such
Tax Indemnitee such forms as may be
necessary to comply with such
requirement and accompanying
21 | 950 |
agreement_26.md | 21
instructions issued by the relevant
Government Entity or other tax
authority as to the proper
completion thereof and (2) such Tax
Indemnitee is entitled under
applicable law to provide the
requested certification or other
documentation; provided, however,
that such Tax Indemnitee shall not
be required to comply with any such
certification, information,
documentation, reporting or other
requirement if such Tax Indemnitee
determines in its sole discretion
exercised in good faith that such
compliance may result in any
adverse consequences to such Tax
Indemnitee.
LIBID in relation to any period and
amount in respect of which an
interest rate is to be determined
pursuant thereto, LIBOR for such
amount and such period minus 12.5
basis points (but in no event shall
LIBID be less than zero).
LIBOR in relation to any period and amount in
respect of which an interest rate is to be
determined pursuant hereto:
(a) the offered rate (if any) appearing
on page 3750 (or its successor or
replacement page) of the Telerate
Screen for dollars for the
specified period at 11:00 a.m. on
the Quotation Date therefor; or
(b) if no such rate is available on
page 3750 (or its successor or
replacement page) of the Telerate
Screen, the rate determined by
Lessor to be the arithmetic mean
(rounded upwards, if not already
such a multiple, to the nearest
whole multiple of one sixteenth of
one percent) of the rates (as
notified to Lessor) at which each
of the Reference Banks (on the
basis that at least two Reference
Banks so notify Lessor) was
offering to prime
22 | 951 |
agreement_26.md | 22
banks in the London Interbank
Market, on the Quotation Date,
deposits in dollars for the
specified period;
for the purposes of this definition,
SPECIFIED PERIOD means the period having a
duration equal to or as close as practicable
to the relevant period in respect of which
LIBOR fails to be determined in relation to
any unpaid sum.
LIFE LIMITED PARTS any Part that has a pre-determined life
limit as mandated by the manufacturer of
such Part, the FAA or any other Governmental
Entity having jurisdiction over matters
relating to airworthiness, which requires
any such Part to be discarded upon reaching
such life limit.
LOSSES any and all cost, expense (including any and
all legal fees and expenses and the fees and
expenses of other professional advisers),
claims, proceedings, losses, liabilities,
obligations, damages (whether direct,
indirect, special, incidental or
consequential), suits, judgments, fees,
penalties or fines (whether criminal or
civil) of any kind or nature whatsoever,
including any of the foregoing arising or
imposed with or without any Indemnitee's
fault or negligence, whether passive or
active or under the doctrine of strict
liability.
MAINTENANCE PLANNING DOCUMENT the recommended maintenance program for the
OR MANUFACTURER'S MAINTENANCE Aircraft issued and in effect from time to
PLANNING DOCUMENT time by the Manufacturer.
MAJOR CHECKS means any C check, multiple C check or
heavier check (including associated
structural inspections and corrosion
prevention and control items) for the
Aircraft as set out in the Approved
Maintenance Program.
MANDATORY ORDER OR MO a mandatory order issued by the FAA and/or
the AAC.
MANUFACTURER Boeing.
23
MAXIMUM DEDUCTIBLE AMOUNT has the meaning specified in Schedule 7. | 952 |
agreement_26.md | MANUFACTURER Boeing.
23
MAXIMUM DEDUCTIBLE AMOUNT has the meaning specified in Schedule 7.
MINIMUM LIABILITY COVERAGE has the meaning specified in Schedule 7.
MINIMUM WAR RISK COVERAGE has the meaning specified in Schedule 7.
MONTH is a reference to a period starting on one
day in a calendar month and ending on the
numerically corresponding day in the next
calendar month (and references to "months"
shall be construed accordingly) save that,
where any such period would otherwise end on
a non-Business Day, it shall end on the next
Business Day, provided that if a period
starts on the last Business Day in a
calendar month or if there is no numerically
corresponding day in the month in which that
period ends, that period shall end on the
last Business Day in that later month.
MORTGAGE any Mortgage over the Aircraft granted by
Lessor in favor of the Financing Parties.
OTHER AGREEMENTS any aircraft lease agreement (other than
this Agreement) or other aircraft financing
agreement made or to be made between (i)
Lessee, and (ii) Lessor, Beneficiary or any
Affiliate of Lessor or Beneficiary or any
trustee for the benefit of Lessor or
Beneficiary or for the benefit of any
Affiliate of Lessor or Beneficiary.
OWNER Lessor or such other Person notified in
writing by Lessor to Lessee.
PART whether or not installed on the Aircraft or
any Engine:
(a) any component, furnishing or
equipment (other than a complete
Engine) furnished with the Aircraft
on the Delivery Date; and
(b) any other component, furnishing or
equipment (other than a complete
Engine) title to which has, or
should have, passed to Owner
pursuant to this
24
Agreement; | 953 |
agreement_26.md | 24
Agreement;
but excludes any such items title to which
has, or should have, passed to Lessee
pursuant to this Agreement.
PARTICIPATION AGREEMENT the Participation Agreement dated as of the
date hereof between Beneficiary, Lessor and
Lessee.
PERMITTED LIEN (a) any lien for any Tax (i) which has
not been assessed or (ii) if
assessed, which is not yet due and
payable or (iii) if assessed and
due and payable, which is being
contested in good faith by
appropriate proceedings in
accordance with applicable law;
(b) any lien of a repairer, mechanic,
carrier, hangar-keeper or other
similar lien arising in the
ordinary course of business or by
operation of law in respect of
obligations which are not overdue
or are being contested in good
faith by appropriate proceedings in
accordance with applicable law;
but only if (in the case of both
(a) and (b)) (i) adequate resources
have been provided by Lessee, or
adequate reserves have been
established and are maintained in
the accounting records of Lessee in
accordance with GAAP, for the
payment of the Taxes or
obligations; and (ii) such
proceedings, or the continued
existence of the lien, do not give
rise to any material likelihood of
the sale, forfeiture or other loss
of the Aircraft or any interest
therein or of criminal liability on
Owner, Lessor, Beneficiary or any
Financing Party;
(c) any Lessor Lien; and
(d) any lien arising out of any
judgment or
25 | 954 |
agreement_26.md | (c) any Lessor Lien; and
(d) any lien arising out of any
judgment or
25
award against Lessee so long as
such judgment or award shall,
within 45 days after the entry
thereof, have been discharged or
vacated, or execution thereof
stayed pending appeal or shall have
been discharged, vacated or
reversed within 45 days after the
expiration of such stay, and so
long as during any such 45 day
period, there is not, or any such
judgment or award does not involve,
any material risk of the sale,
forfeiture or loss of the Aircraft,
Airframe, any Engine, or any of the
Aircraft Documents or any interest
therein or any discernable risk of
criminal liability or any material
risk of civil penalty against
Owner, Lessor, Beneficiary or any
Financing Party.
PERSON any individual person, corporation, company,
partnership, limited liability company,
firm, joint stock company, joint venture,
trust, estate, unincorporated organization,
association, Government Entity, or other
entity, or any commercial or other
arrangement or relationship that is deemed
to be an entity for the purpose of any
applicable law.
PRICE ESCALATION ADJUSTMENTS has the meaning specified in Schedule 7.
QUOTATION DATE means, in relation to any period in respect
of which LIBOR is to be determined, the day
two Business Days before the beginning of
such period.
RBS Royal Bank of Scotland plc.
REDELIVERY DATE the Final Expiry Date.
REDELIVERY LOCATION Miami International Airport, Miami, Florida,
or such other location in the continental
United States of America as Lessor and
Lessee may agree.
26
REFERENCE BANKS means The Royal Bank of Scotland plc, Bank
of America NT&SA and Citibank N.A. | 955 |
agreement_26.md | 26
REFERENCE BANKS means The Royal Bank of Scotland plc, Bank
of America NT&SA and Citibank N.A.
REFUND has the meaning specified in Clause 5.11(d).
RENT all amounts payable pursuant to Clause 5.3.
RENT ADJUSTMENT FACTOR has the meaning specified in Schedule 7.
RENT COMMENCEMENT DATE the date on which Lessor tenders the
Aircraft for Delivery to Lessee under and in
accordance with Clauses 4.1 and 4.2.
RENT DATE the first day of each Rental Period.
RENTAL PERIOD each period ascertained in accordance with
Clause 5.2.
RETURN CONDITIONS means the conditions specified in
Schedule 3.
SALES TAX any Tax that is, or is in the nature of, a
sales, use, rental, leasing, value added,
turnover, services, goods and services,
consumption, transaction privilege, or
similar Tax.
SCHEDULED DELIVERY DATE Month of May 2005.
SECURITY DEPOSIT all amounts payable pursuant to Clause 5.1.
SECURITY DEPOSIT AMOUNT has the meaning specified in Schedule 7.
SECURITY INTEREST any mortgage, charge, pledge, lien, security
interest, assignment, hypothecation, right
of setoff or other agreement or arrangement
having the effect of creating an encumbrance
other than a Permitted Lien.
SELLER Boeing.
SIMILAR LAWS any federal, state, local, non-U.S. or other
laws or regulations that are similar to
Section 406 of ERISA or Section 4975 of the
Internal Revenue Code.
SOLVENT when used with respect to any Person, means
that, as of any date of determination, (a)
the amount of the "present fair saleable
value" of | 956 |
agreement_26.md | 27
the assets of such Person will, as of such
date, exceed the amount of all "liabilities
of such Person, contingent or otherwise", as
of such date, as such quoted terms are
determined in accordance with applicable
Panamanian and U.S. federal and state laws
governing determinations of the insolvency
of debtors, (b) the present fair saleable
value of the assets of such Person will, as
of such date, be greater than the amount
that will be required to pay the liability
of such Person on its debts as such debts
become absolute and matured, (c) such Person
will not have in its good faith opinion, as
of such date, an unreasonably small amount
of capital with which to conduct its
business, and (d) such Person will be able
to pay its debts as they mature. For
purposes of this definition, (i) "debt"
means liability on a "claim", and (ii)
"claim" means any (x) right to payment,
whether or not such a right is reduced to
judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured or
unsecured or (y) right to an equitable
remedy for breach of performance if such
breach gives rise to a right to payment,
whether or not such right to an equitable
remedy is reduced to judgment, fixed,
contingent, matured or unmatured, disputed,
undisputed, secured or unsecured.
SPECIFIED PERSON any sublessee or any other Person that uses
or has the right to use or has possession or
custody of the Aircraft, the Airframe, any
Engine or any Part, or any shareholder,
Subsidiary, Affiliate, contractor, director,
officer, agent or employee of any of the
foregoing. | 957 |
agreement_26.md | SUBSIDIARY (a) in relation to any reference to
accounts, any company whose
accounts are consolidated with the
accounts of Lessee in accordance
with GAAP;
(b) for any other purpose an entity
from
28
time to time:
(i) of which another has
direct or indirect control
or owns directly or
indirectly more than 50
percent of the voting
share capital; or
(ii) which is a direct or
indirect subsidiary of
another under the laws of
the jurisdiction of its
incorporation.
SUPPLEMENTAL RENT all amounts payable pursuant to Clause 5.4.
SUPPLEMENTAL RENT RATE any of the Airframe 6C/24,000 Flight Hour
Block Structural Check Supplemental Rent
Rate, the Engine LLP Supplemental Rent Rate,
the Engine Supplemental Rent Rate, the APU
Supplemental Rent Rate and the Landing Gear
Supplemental Rent Rate.
TAX any present and future tax (including,
without limitation, any gross receipts,
gross or net income, franchise, doing
business, sales, transfer, business,
occupation, fuel, leasing, turnover, excess
profits, registration, capital gains,
import/export, use, rental, leasing, value
added, goods and services, consumption,
transaction privilege, excise, property,
license, documentary or stamp tax), duty,
levy, assessment, impost, withholding or
other similar charge, and any penalty,
additions to tax, fine, surcharge or
interest relating thereto, imposed by any
Government Entity or other taxing authority
in any jurisdiction or by any international
or multinational authority.
TAX CLAIM has the meaning specified in Clause 5.12(a).
TAX DOCUMENT has the meaning specified in Clause 5.11(b). | 958 |
agreement_26.md | TAX DOCUMENT has the meaning specified in Clause 5.11(b).
TAX INDEMNITEE each of the following: (i) Owner,
(ii) Beneficiary, (iii) Lessor, (iv) each
Financing Party, (v) each security trustee
or other Financing Parties' Representative,
and
29
(vi) each shareholder, Subsidiary,
Affiliate, beneficiary, member, director,
officer, agent and employee of any of the
Persons described in items (i) - (v).
TAX SAVING has the meaning specified in Clause 5.11(d).
TERM OR LEASE TERM the period commencing on the Delivery Date
and ending on but excluding the next
succeeding Annual Expiry Date or, if
earlier, on the Final Expiry Date, provided
that the Term shall be automatically renewed
on each Annual Expiry Date for consecutive
periods of one year's duration up until and
including the Final Expiry Date, subject to
the provisions of Clauses 11 and 13.2.
TRANSACTION DOCUMENTS this Agreement, the Participation Agreement,
the Trust Agreement, the Aircraft Purchase
Agreement, the Warranty Assignment, the Bill
of Sale, the Acceptance Certificate, Lease
Supplement No. 1, the Lessee Power of
Attorney and the Copa Holdings Guarantee,
and all documents, instruments and
certificates delivered pursuant hereto or
thereto.
TRUST AGREEMENT means the Trust Agreement dated the date
hereof between Beneficiary, as trustor, and
Wells Fargo Bank Northwest, N.A., as
trustee.
UCC Uniform Commercial Code, as the same may be
in effect in any applicable jurisdiction
within the United States. | 959 |
agreement_26.md | UCC Uniform Commercial Code, as the same may be
in effect in any applicable jurisdiction
within the United States.
UNUSED SUPPLEMENTAL RENT an amount equal, from time to time, to all
Supplemental Rent paid by Lessee and not
repaid to, or as directed by, Lessee by
Lessor or applied to Lessee's obligations as
provided under this Agreement.
WARRANTY ASSIGNMENT a Warranty Assignment substantially in the
form of Schedule 12.
1.2 CONSTRUCTION:
(a) In this Agreement, unless the contrary intention is stated, a
reference to:
30
(i) each of "Lessor" or "Lessee" or any other Person
includes without prejudice to the provisions of this
Agreement any successor in title to it and any permitted
assignee;
(ii) words importing the plural form shall apply to the
singular and vice versa;
(iii) any document shall include that document as amended,
novated, supplemented or otherwise modified from time to
time and includes all exhibits, appendices, attachments
and supplements thereto;
(iv) a "law" (1) includes any statute, decree, constitution,
regulation, order, judgment or directive or requirement
of any Government Entity; (2) includes any treaty, pact,
compact or other agreement to which any Government
Entity is a signatory or party; (3) includes any
judicial or administrative interpretation or application
thereof and (4) is a reference to that provision as
amended, substituted or reenacted;
(v) a Clause or a Schedule is a reference to a clause of or
a schedule to this Agreement; and
(vi) the words "include," "includes," and "including" are
deemed to be followed by the words "without limitation"
whether or not such words appear; | 960 |
agreement_26.md | (b) the headings in this Agreement are to be ignored in construing
this Agreement.
2. REPRESENTATIONS AND WARRANTIES
2.1 LESSEE'S REPRESENTATIONS AND WARRANTIES:
Lessee represents and warrants to Lessor that:
(a) STATUS: Lessee is a corporation duly incorporated and validly
existing under the laws of the Country of Incorporation and
has the corporate power to own its assets and carry on its
business as it is being conducted and is the holder of all
necessary air transportation and other licenses or permits
required in connection therewith and with the use and
operation of the Aircraft;
(b) POWER AND AUTHORITY: Lessee has the corporate power to enter
into and perform, and has taken all necessary corporate action
to authorize the entry into, performance and delivery of, this
Agreement and each of the
31
other Transaction Documents to which it is a party and the
transactions contemplated hereby and thereby;
(c) LEGAL VALIDITY: this Agreement and each of the other
Transaction Documents to which it is a party has been duly
authorized by Lessee, each of this Agreement and the
Participation Agreement has been duly executed and delivered
by Lessee and each of this Agreement and the Participation
Agreement does, and each of the other Transaction Documents
when executed and delivered by Lessee (subject to execution
and delivery by the other parties thereto) will, constitute a
legal, valid and binding obligation of Lessee, enforceable
against Lessee in accordance with its terms, except as
enforceability may be limited, by applicable bankruptcy,
insolvency or other laws affecting creditors' rights generally
and/or general principles of equity;
(d) NON-CONFLICT: the entry into and performance by Lessee of, and
the transactions contemplated by, this Agreement does not and
will not: | 961 |
agreement_26.md | (i) conflict with any laws binding on Lessee;
(ii) conflict with the constitutional documents of Lessee; or
(iii) conflict with or result in default under any indenture,
mortgage, contract, agreement or other document which is
binding upon Lessee or any of its assets or result in
the creation of any Security Interest over any of its
assets (other than the Security Deposit);
(e) AUTHORIZATION: all authorizations, consents, registrations and
notifications required under the laws of the Country of
Incorporation and the Country of Registration and any other
relevant jurisdictions in connection with the entry into and
performance by Lessee of, and the validity and enforceability
against Lessee of, this Agreement and the other Transaction
Documents to which it is a party and the transactions
contemplated hereby and thereby, have been (or will on or
before the Delivery Date have been) obtained or effected (as
appropriate) and are (or will on their being obtained or
effected be) in full force and effect, except as provided in
Section 8.11(f);
(f) NO IMMUNITY:
(i) Lessee is subject to civil and commercial law with
respect to its obligations under this Agreement and the
other Transaction Documents; and
(ii) neither Lessee nor any of its assets is entitled to any
right of immunity from suit, jurisdiction, attachment
prior to judgment, attachment in
32
aid of execution, set-off, execution or other legal
process, and the entry into and performance of this
Agreement and the other Transaction Documents by Lessee
constitute private and commercial acts;
(g) ACCOUNTS: the audited consolidated financial statements of
Lessee and its Subsidiaries most recently delivered to Lessor:
(i) have been prepared in accordance with GAAP; and | 962 |
agreement_26.md | (i) have been prepared in accordance with GAAP; and
(ii) fairly represent the consolidated financial condition of
Lessee and its Subsidiaries as at the date thereof;
(h) FULL DISCLOSURE: its audited financial statements referred to
in Clause 2.1(g) provided to Lessor by Lessee for the purposes
of this Agreement do not contain any untrue or materially
misleading statement of a material fact;
(i) MATERIAL ADVERSE EFFECT: No event has occurred since December
31, 2003 which constitutes, or which with the giving of notice
and/or lapse of time or both would constitute, a contravention
of, or default under, any agreement or instrument by which
Lessee or Guarantor or any of their assets are bound or
affected, being a contravention or default which might either
have a material adverse effect on the financial condition,
business, assets or operations of Lessee or Guarantor or on
their ability to observe and perform their obligations under
the Transaction Documents;
(j) TAXES: | 963 |
agreement_26.md | (j) TAXES:
(i) Lessee has filed or caused to be filed in such manner as
is required by law or regulation all Tax returns which
Lessee is required by any applicable law to file with
any Government Entity or other taxing authority, and has
paid or caused to be paid all Taxes reported on such
returns to be due or which have become due pursuant to
any notice, demand or assessment received by Lessee or
any of its Affiliates, except for any such notice,
demand or assessment (A) which is being contested in
good faith in accordance with the applicable law, (B)
which does not and will not involve a material risk of
sale, forfeiture or loss of the Aircraft, the Airframe,
any Engine or any Part, and (C) for which an adequate
reserve has been established and maintained in the
accounting records of Lessee in accordance with GAAP;
(ii) no material claim for any Tax has been asserted against
Lessee by any Government Entity or other taxing
authority other than claims that are included in the
liabilities for Taxes in the audited consolidated
financial statements described in Clause 2.1(g) or
33
which are being contested in good faith by appropriate
proceedings and with respect to which appropriate
reserves have been maintained to the extent required by
GAAP and which arose after the date of such audited
consolidated financial statements and which does not and
will not involve a material risk of sale, forfeiture or
loss of the Aircraft;
(iii) all applicable customs duties and Sales Taxes in respect
of the Aircraft, its sale to Lessor and lease hereunder
to Lessee on the Delivery date, have been paid; | 964 |
agreement_26.md | (iv) there is no Tax of the Country of Incorporation or the
Country of Registration, or any taxing authority of
either thereof or therein which is imposed in respect of
any payment to be made by Lessee to Lessor pursuant to
the Transaction Documents, or is imposed on or by virtue
of the execution, delivery or performance of the
Transaction Documents; and
(v) there is no Tax of the Country of Incorporation or the
Country of Registration, or any taxing authority of
either thereof or therein which is imposed in respect of
any payment to be made to Lessee pursuant to the
Transaction Documents, or is imposed on any Lender on or
by virtue of the execution, delivery or performance of
the Transaction Documents;
(k) NO DOING BUSINESS: neither Lessor nor Beneficiary is or will
be deemed to be resident, domiciled or carrying on business in
The Republic of Panama or be subject to taxation in The
Republic of Panama by reason only of the execution,
performance and/or enforcement of any of the Transaction
Documents; | 965 |
agreement_26.md | (l) ENFORCEMENT: in any execution proceedings taken in The
Republic of Panama for the enforcement of the Transaction
Documents, the courts of The Republic of Panama will give
effect to and enforce any final (non-appealable) judgment
granted in the United States, without re-examination or
re-litigation of any matter adjudicated therein, provided that
if a final and conclusive judgment in respect of any of the
Transaction Documents is given by a foreign court of competent
jurisdiction to deal with any action arising therefrom, such
judgment would be recognized and enforced in the Courts of the
Republic of Panama without retrial of the originating action
by instituting exequatur proceedings in the Supreme Court of
Panama and upon determination by such tribunal that: (i) the
courts of the judgment country would in similar circumstances
recognize a final and conclusive judgment of the Courts of the
Republic of Panama; (ii) the judgment has been issued as a
consequence of an action "in personam"; (iii) the judgment was
rendered after personal service on the defendant;
34
(iv) the cause of action upon which judgment was based does
not contravene public policy of Panama; and (v) the documents
evidencing the judgment are in authentic form according to the
laws of the judgment country and have been duly legalized by
Panamanian Consul; and no filing, recording, registering of or
with respect to the Transaction Documents will be necessary in
the Republic of Panama in order to protect, preserve or
perfect the validity and enforceability of the Transaction
Documents, and the interests thereby created, except as stated
in Section 8.11(f);
(m) POWER OF ATTORNEY: the Lessee Power of Attorney remains in
full force and effect; | 966 |
agreement_26.md | (m) POWER OF ATTORNEY: the Lessee Power of Attorney remains in
full force and effect;
(n) UCC MATTERS: the "location" of Lessee, for purposes of Section
9-307 of the Uniform Commercial Code of the State of New York,
is in the State of Florida;
(o) SOLVENCY: Lessee is Solvent; and
(p) ERISA: (A) the execution, delivery and performance of the
Transaction Documents will not involve any transaction in
connection with which a civil penalty could be assessed
pursuant to Section 502 of ERISA, any tax could be imposed
under Section 4975 of the Internal Revenue Code; or a
violation of any Similar Laws could result and (B) neither
Lessee nor any Subsidiary or Commonly Controlled Entity (i)
maintains, contributes to or has any liability in respect of,
(ii) is obligated to maintain or contribute to, or has, at any
time within the five years preceding the date of this
representation, maintained, contributed to or had any
liability in respect of or (iii) has been obligated to
maintain or contribute to, any employee benefit plan that is
subject to Title IV of ERISA.
2.2 LESSEE'S FURTHER REPRESENTATIONS AND WARRANTIES:
Lessee further represents and warrants to Lessor that:
(a) NO DEFAULT: no Default has occurred and is continuing or would
result from the entry into or performance of this Agreement
and the other Transaction Documents;
(b) REGISTRATION: | 967 |
agreement_26.md | (b) REGISTRATION:
(i) except for (x) the filing of UCC financing Statements
with regard to the Lease, and the Security Deposit in
the District of Columbia, all of which shall have been
accomplished on or before the Delivery Date, and (y) the
filing and recordation of this Agreement, the Lease
Supplement No. 1 and the Bill of Sale as provided in
Clause 8.11(f), it is not necessary or advisable under
35
the laws of the Country of Incorporation, the Country of
Registration or the Habitual Base in order to ensure the
validity, effectiveness and enforceability of this
Agreement or the other Transaction Documents or to,
establish, perfect or protect the property rights of
Lessor in or with respect to the Aircraft or any Engine
or Part, or the Security Deposit, that this Agreement or
any other Transaction Document or any other document or
instrument relating thereto be filed, registered or
recorded or that any other action be taken; and
(ii) upon completion of the filings referenced in Clause
2.2(b)(i) and the recordation, registration or indexing
of the instruments so filed by the appropriate
Government Entities, under the laws of the Country of
Incorporation, the Country of Registration and the
Habitual Base and the other jurisdictions referred to in
Clause 8.11(f), the property rights of Lessor and
Beneficiary in the Aircraft, the Lease and the Security
Deposit will be fully established and perfected;
(c) LITIGATION: no litigation, arbitration or administrative
proceedings are pending or to its knowledge threatened against
Lessee in any jurisdiction which reasonably may be expected to
have a material adverse effect upon its financial condition or
business or its ability to perform its obligations under this
Agreement; | 968 |
agreement_26.md | (d) PARI PASSU: the obligations of Lessee under this Agreement
rank at least pari passu with all other present and future
unsecured and unsubordinated obligations (including contingent
obligations) of Lessee, with the exception of such obligations
as are mandatorily preferred by law and not by virtue of any
contract;
(e) MATERIAL ADVERSE CHANGE: there has been no material adverse
change in the consolidated financial condition or operations
of Lessee and its Subsidiaries or the financial condition or
operations of Lessee since the date as to which the financial
statements most recently provided to Lessor on or prior to the
Delivery Date were drawn up; and
(f) NO BROKERS: Lessee has not engaged the services of a broker or
similar representative or agent for the purposes of procuring
the leasing of the Aircraft pursuant to this Agreement.
2.3 REPETITION:
The representations and warranties in Clause 2.1 and Clause 2.2 will
survive the execution of this Agreement. The representations and
warranties contained in Clause 2.1 and Clause 2.2 will be deemed to
be repeated by Lessee on the
36
Delivery Date and the representations set forth in Clause 2.1(a)
through (h), (j)(iii), (1), (m) and (n) will be deemed to be
repeated by Lessee on each Rent Date with reference to the facts and
circumstances then existing.
2.4 LESSOR'S REPRESENTATIONS AND WARRANTIES:
Lessor (as to clauses (b), (c), (d), (e), (f), (g) and (h) and WFB
(as to clauses (a), (b), (c), (d), (e), (f), (g) and (h)) represents
and warrants to Lessee that: | 969 |
agreement_26.md | (a) STATUS: WFB is a national banking association duly
incorporated and validly existing under the federal laws of
the United States and has the corporate power to own its
assets and carry on its business as it is being conducted;
(b) POWER AND AUTHORITY: each of Lessor and WFB has the corporate
power to enter into and perform, and has taken all necessary
corporate action to authorize the entry into, performance and
delivery of, this Agreement and the other Transaction
Documents to which it is a party and the transactions
contemplated by this Agreement and the other Transaction
Documents to which it is a party;
(c) LEGAL VALIDITY: each of the Transaction Documents to which it
is a party has been duly authorized, executed and delivered by
it, and constitutes its legal, valid and binding obligations,
enforceable against it in accordance with their respective
terms except insofar as enforceability may be limited by (i)
applicable bankruptcy, insolvency or other laws affecting
creditors' rights generally or (ii) general principles of
equity;
(d) NON-CONFLICT: the entry into and performance by it of, and the
transactions contemplated by, this Agreement and the other
Transaction Documents to which it is a party do not and will
not:
(i) conflict with any laws, rules or regulations binding on
it;
(ii) conflict with the constitutional documents of Lessor or
WFB; or
(iii) conflict with any indenture, mortgage, contract or other
document which is binding upon it or any of its assets; | 970 |
agreement_26.md | (iii) conflict with any indenture, mortgage, contract or other
document which is binding upon it or any of its assets;
(e) AUTHORIZATION: all authorizations, consents, registrations and
notifications required under the laws of the State of Utah,
the State of New York (the place of closing) and the federal
laws of the United States in connection with the entry into,
performance, validity and enforceability of, and the
transactions contemplated by, this Agreement and the other
Transaction Documents to which it is a party have been (or
will on or before the Delivery Date have been) obtained or
effected (as appropriate)
37
and are (or will on their being obtained or effected be) in
full force and effect;
(f) NO IMMUNITY:
(i) it is subject to civil commercial law with respect to
its obligations under this Agreement and the other
Transaction Documents to which it is a party; and
(ii) neither it nor any of its assets is entitled to any
right of immunity and the entry into and performance of
this Agreement and the other Transaction Documents to
which it is a party by it constitute private and
commercial acts;
(g) TITLE: At the time of Delivery, Lessor shall have good title
to the Aircraft, free and clear of any Liens;
(h) NO BROKERS: Lessor has not engaged the services of a broker or
similar representative agent for the purposes of this
Agreement and the transactions contemplated herein;
2.5 REPETITION:
The representations and warranties in Clause 2.4 will survive the
execution of this Agreement and will be deemed to be repeated by
Lessor on the Delivery Date with reference to the facts and
circumstances then existing.
3. CONDITIONS PRECEDENT
3.1 CONDITIONS PRECEDENT: | 971 |
agreement_26.md | 3. CONDITIONS PRECEDENT
3.1 CONDITIONS PRECEDENT:
Lessor's obligation to deliver and lease the Aircraft under this
Agreement is subject to satisfaction of each of the following
conditions:
(a) receipt by Lessor and Beneficiary from Lessee of the following
satisfactory in form and substance to Lessor:
(i) TRANSACTION DOCUMENTS: each Transaction Document shall
have been duly executed and delivered by each party
thereto other than Lessor;
(ii) CONSTITUTIONAL DOCUMENTS: a copy of the constitutional
documents of Lessee and the Guarantor;
(iii) RESOLUTIONS: a copy of a resolution of the board of
directors of Lessee and Guarantor, in each case
approving the terms of, and the transactions
contemplated by, this Agreement and the other
38
Transaction Documents to which it is a party, resolving
that it enter into this Agreement and the other
Transaction Documents to which it is a party, and
authorizing execution of this Agreement and the other
Transaction Documents to which it is a party and
consummation of the transactions contemplated hereby and
thereby; | 972 |
agreement_26.md | (iv) OPINIONS: (i) an opinion reasonably satisfactory in form
and substance to Lessor (based on New York law) by
Greenberg Traurig, P.A., (ii) an opinion reasonably
satisfactory in form and substance to Lessor (based on
Panamanian law) by Galindo Arias & Lopez, Panamanian
counsel to Lessee, (iii) at Lessor's cost, an opinion
reasonably satisfactory in form and substance to
Beneficiary by Patton, Moreno & Asvat, Panamanian
counsel to the Lessor and Beneficiary, with respect to
Panamanian law; and (iv) at Lessor's cost, a
jurisdictional review by Patton, Moreno & Asvat,
Panamanian counsel to Lessor and Beneficiary, as to the
rights of creditors and lessors of aircraft under
Panamanian law, satisfactory in form and substance to
Beneficiary;
(v) APPROVALS: evidence of the issuance of each approval,
license and consent which is required in relation to, or
in connection with the performance by Lessee of any of
its obligations under this Agreement and the other
Transaction Documents;
(vi) LICENSES: copies of Lessee's air transport license, air
operator's certificates and all other material licenses,
certificates and permits required by Lessee in relation
to, or in connection with, the operation of the
Aircraft;
(vii) CERTIFICATE: a certificate of a duly authorized officer
of Lessee:
(a) setting out a specimen of the signature of each
Person authorized to execute documents on behalf
of Lessee pursuant to the resolutions referred to
in Clause 3.1(a)(iii); | 973 |
agreement_26.md | (b) certifying that each copy of each document
specified in Clause 3.1(a)(ii) and (iii) is
correct, complete and in full force and effect;
and
(c) certifying as to the matters stated in Clause
3.2(a), (b) and (d);
(viii)UCC FINANCING STATEMENTS: UCC financing statements with
respect to the Aircraft and this Agreement in a form
acceptable to Lessor shall have been prepared for filing
with the appropriate Government Entity in the District
of Columbia;
39
(ix) PAYMENTS: all sums due to Lessor under this Agreement
on or before the Delivery Date including, without
limitation, the first payment of Rent and the full
amount of the Security Deposit;
(x) INSURANCES: a certificate of insurance and broker's
letter of undertaking satisfactory to Lessor and
evidencing that Lessee is taking the required steps
to ensure due compliance with the provisions of this
Agreement as to Insurances with effect on and after
the Delivery Date,
(xi) FINANCIAL STATEMENTS: the latest available financial
statements and accompanying documents of Lessee as
described in Clause 8.2(b)(i) and (ii);
(xii) TITLE: Initial Purchaser shall have transferred good
title to the Aircraft to Lessor and Lessor shall have
received a signed original of the Bill of Sale;
(xiii) AUTHORIZATION: the Aircraft shall have been certified
by the FAA as to type and airworthiness for export to
Panama, and Lessee shall have permanent or temporary
authority to operate the Aircraft, and copies of
relevant documents shall have been delivered to
Lessor;
(xiv) PROCESS AGENT: a letter from the process agent
appointed by Lessee in this Agreement accepting that
appointment; | 974 |
agreement_26.md | (xiv) PROCESS AGENT: a letter from the process agent
appointed by Lessee in this Agreement accepting that
appointment;
(xv) ACCEPTANCE CERTIFICATE: the Acceptance Certificate,
dated, fully completed, and executed by Lessee on
behalf of Lessor;
(xvi) IMPORT: evidence that any required import license,
and all customs formalities relating to the import of
the Aircraft into the Habitual Base have been
obtained or complied with (if no such licenses or
formalities are required, a statement to that effect
included in the legal opinion described in paragraph
(ii) will satisfy Lessee's obligation under this
paragraph (ix)), and evidence that the import of the
Aircraft into the Habitual Base is exempt from Taxes,
or that any such Taxes have been paid in full;
(xvii) POWERS OF ATTORNEY: the Lessee Power of Attorney; and
(xviii) REGISTRATION, RECORDINGS: receipt by Lessor of
evidence that on the Delivery Date the Aircraft has
been provisionally registered under the laws of the
Country of Registration and that this Agreement,
Lease Supplement No. 1 and the Bill of Sale will be
recorded with the Public Registry of Panama as
required by Section 8.11(f), and that all filings,
registrations, recordings and other actions have been
or will be taken which are necessary or
40
advisable to ensure the validity, effectiveness and
enforceability of this Agreement and the other
Transaction Documents and to protect the rights and
interests of Lessor in the Aircraft;
(xix) MANUFACTURER DELIVERY DOCUMENTS: receipt by Lessor of
originals of the Manufacturer delivery documents,
including certified copies of the relevant bills of sale
(FAA and full warranty); | 975 |
agreement_26.md | (xx) GENERAL: such other documents and financial information
as Lessor may reasonably request in order to (i)
consummate or give effect to the transactions
contemplated by this Agreement and the Transaction
Documents and (ii) assess the financial and commercial
condition of Lessee, present and future, and Lessor's
being satisfied in its sole discretion with such
financial and commercial condition.
3.2 FURTHER CONDITIONS PRECEDENT:
The obligations of Lessor to deliver and lease the Aircraft under
this Agreement are subject to the further conditions precedent that:
(a) the representations and warranties of Lessee under Clauses 2.1
and 2.2 are correct and would be correct if repeated on
Delivery of the Aircraft under this Agreement;
(b) no Default has occurred and is continuing or would reasonably
be expected to result from the leasing of the Aircraft to
Lessee under this Agreement;
(c) no change shall have occurred after the date of the execution
and delivery of this Agreement in laws that in the case of
Lessor or Beneficiary, in the reasonable opinion of counsel,
would make it illegal for such Person to participate in this
transaction or to make its Loan available to Lessor; and
(d) no action or proceeding or governmental action shall have been
instituted or threatened before any court or governmental
agency, nor shall any order, judgment or decree have been
issued or proposed to be issued by any court or governmental
agency at the time of the Delivery Date to set aside,
restrain, enjoin or prevent the completion and consummation of
this Agreement or the other Transaction Documents or the
transactions contemplated hereby and thereby.
3.3 LESSEE CONDITIONS PRECEDENT:
Lessee's obligation to accept delivery and to lease the Aircraft are
subject to the following additional conditions precedent:
41 | 976 |
agreement_26.md | Lessee's obligation to accept delivery and to lease the Aircraft are
subject to the following additional conditions precedent:
41
(a) receipt by Lessee on or before the Delivery Date of:
(i) a certificate signed by a duly authorized officer of
Lessor certifying that Lessor's representations and
warranties in Clause 2.4 are true and correct on the
Delivery Date as if given on such date;
(ii) each of this Agreement, Lease Supplement No. 1 and the
Participation Agreement, duly executed and delivered by
Lessor, and the Warranty Assignment duly executed and
delivered by the parties thereto;
(iii) Initial Purchaser shall have transferred good title to
the Aircraft to Lessor and Lessor shall have received a
signed original of the Bill of Sale;
(iv) the Aircraft shall have been certified by the FAA as to
type and airworthiness for export to Panama, and Lessee
shall have permanent or temporary authority to operate
the Aircraft, and copies of relevant documents shall
have been delivered to Lessor; and
(v) receipt by Lessee of all documents required to operate
the Aircraft in Panama.
(b) Lessor shall have tendered delivery of the Aircraft to Lessee
in accordance with Clauses 4.1 and 4.2.
3.4 WAIVER:
(a) The conditions specified in Clauses 3.1 and 3.2 are for the
sole benefit of Lessor and may be waived or deferred in whole
or in part by Lessor. Such waiver or deferral may be subject
to such conditions as shall be accepted by Lessee. | 977 |
agreement_26.md | (b) The conditions specified in Clause 3.3 are for the sole
benefit of Lessee and may be waived or deferred in whole or in
part by Lessee. Such waiver or deferral may be subject to such
conditions as shall be accepted by Lessor.
3.5 POST-CLOSING MATTERS:
Lessee shall, at its sole cost and expense, provide to Lessor (i)
evidence that the UCC Financing Statement referenced in Clause
2.2(b)(i)(y) has been duly filed with the appropriate Government
Entity in the District of Columbia (which evidence may take the form
of a filed-stamped copy of such UCC financing statement), (ii)
evidence that the AAC has issued a permanent registration
42
certificate for the Aircraft as required by Section 8.11(f)(iii) and
(iii) an opinion of Panamanian counsel to Lessee as to the making of
proper filings as required by Section 8.11(f)(i).
4. COMMENCEMENT
4.1 LEASING:
(a) Subject to satisfaction of the conditions set forth in Clauses
3.1 and 3.2, Lessor will lease the Aircraft to Lessee and
Lessee will take the Aircraft on lease for the Term, which
shall commence on the Delivery Date immediately upon transfer
of title to the Aircraft from Seller to Lessor, and which
leasing shall be unconditionally and irrevocably evidenced by
Lessee's execution and delivery of Lease Supplement No. 1; and
(b) Lessee will be responsible for all risks associated with any
loss of or damage to the Aircraft or caused by the operation
of the Aircraft from the execution of Lease Supplement No. 1
until the return of the Aircraft to Lessor pursuant to the
terms of this Agreement.
4.2 DELIVERY: | 978 |
agreement_26.md | 4.2 DELIVERY:
Lessor shall deliver the Aircraft to Lessee immediately following
delivery thereof by the Manufacturer. Immediately following Lessor's
purchase of the Aircraft from Seller, Lessor will tender the
Aircraft for Delivery to Lessee and Lessee will unconditionally and
irrevocably effect acceptance of the Aircraft by execution and
delivery to Lessor of the duly completed and executed Lease
Supplement No. 1, notwithstanding any delay in Delivery after the
Scheduled Delivery Date, subject to Section 4.4. Simultaneously with
Lessor's purchase of the Aircraft, Lessee will execute, as agent of
Lessor, and deliver to Delta the Acceptance Certificate. Upon
execution and delivery by Lessee of Lease Supplement No. 1, Lessee's
acceptance of the Aircraft under this Agreement shall be
unconditional and irrevocable for all purposes. Lessor will include
Lessee, and Lessee will participate, in all stages of the acceptance
procedure of the Aircraft from the Manufacturer and Lessee shall be
satisfied that the Aircraft as delivered from Manufacturer meets the
delivery conditions set forth on Schedule 1 hereof.
4.3 DELAYED DELIVERY:
It is intended that the Delivery Date will be the Scheduled Delivery
Date. However, Lessor shall not be responsible for any loss or
damages, including without limitation loss of profit, arising from
or in connection with any delay in the delivery of or failure to
deliver the Aircraft to Lessee under this Agreement on the Scheduled
Delivery Date for any reason whatsoever. Notwithstanding any such
delay, Lessor shall not be excused from its obligation to Deliver
the Aircraft to Lessee unless such delay resulted from any cause
which is outside the control of Lessor.
43
4.4 TERMINATION FOR NON-DELIVERY: | 979 |
agreement_26.md | 43
4.4 TERMINATION FOR NON-DELIVERY:
The parties agree that if Delivery of the Aircraft has not occurred
for any reason whatsoever including, without limitation, any
circumstance described in Clause 4.2 or 4.3 above, on or before the
Final Delivery Date, then unless the parties shall have agreed in
writing to extend the Delivery Date and the Final Delivery Date,
this Agreement shall immediately terminate. Upon such termination,
neither party will have any further obligations or liability under
this Agreement other than pursuant to Clause 15.8 except that Lessor
will repay the amount of the Security Deposit.
4.5 PURCHASE OF AIRCRAFT:
Lessee agrees that Lessor's obligation to deliver the Aircraft to
Lessee under the terms of this Agreement is expressly subject to
Lessor obtaining good title to the Aircraft from Initial Purchaser
pursuant to the Aircraft Purchase Agreement.
5. PAYMENTS
5.1 SECURITY DEPOSIT AND LETTER OF CREDIT:
(a) PAYMENT: Lessee shall pay to Lessor a Security Deposit in cash
in the amount defined as the Security Deposit Amount in
Schedule 7 hereof in the following installments:
(i) US\*\*Material Redacted\*\* at the time this Agreement is
executed;
(ii) US\*\*Material Redacted\*\* three months prior to Delivery
Date; and
(iii) the balance to be paid no later than three Business Days
prior to Delivery Date.
(b) CONCERNING THE SECURITY DEPOSIT: | 980 |
agreement_26.md | (b) CONCERNING THE SECURITY DEPOSIT:
(i) The Security Deposit shall be deposited in a designated
account of the Lessor maintained at the Royal Bank of
Scotland, New York Branch or such other account in the
United States as Lessor shall designate in writing.
Lessor will not hold the Security Deposit as agent or on
trust for Lessee or in any similar fiduciary capacity.
(ii) Lessee may provide the Security Deposit in the form of a
letter of credit, issued by a bank satisfactory to
Lessor, having a term of no more than one year, and
otherwise in form and substance (including the
designation of the presentment location) satisfactory to
Lessor.
44
(c) CONCERNING THE LETTER OF CREDIT:
If at any time prior to the Final Expiry Date, the long-term
unsecured unsubordinated and unguaranteed debt obligations as
rated by Moody's Investors Services Inc. or Standard & Poor's
Corporation of the then current bank issuing the letter of
credit shall be less than A2 and A respectively or shall be on
creditwatch by either of such agencies, Lessee shall procure
that the relevant letter of credit is replaced by a letter of
credit by another bank acceptable to Lessor (in its sole
discretion).
5.2 RENTAL PERIODS:
The Term will be divided into Rental Periods. The first Rental
Period will commence on the Delivery Date, and each subsequent
Rental Period will commence on the date succeeding the last day of
the previous Rental Period. Each Rental Period will end on but
exclude the numerically corresponding day in the next Month except
that if a Rental Period would otherwise overrun the Final Expiry
Date, it will end on the Final Expiry Date.
5.3 RENT: | 981 |
agreement_26.md | 5.3 RENT:
(a) TIME OF PAYMENT: Lessee will pay to Lessor Rent in advance on
each Rent Date. Payment must be initiated in such manner as to
ensure that Lessor receives credit for the payment on the Rent
Date. If a Rental Period begins on a non-Business Day, the
Rent payable in respect of that Rental Period shall be paid on
the Business Day immediately following the date on which such
Rental Period commences.
(b) AMOUNT: The Rent payable in respect of each Rental Period
shall be the Assumed Rent based on the Assumed LIBOR Rate and
will be adjusted upward or downward by the Rent Adjustment
Factor. On each Rent Calculation Date (as defined below), the
Rent shall be calculated and set for the six consecutive
Rental Periods immediately following such Rent Calculation
Date. For purposes of this Clause 5.3(b), "Rent Calculation
Date" shall mean the date that falls three days prior to the
Delivery Date and each six-month anniversary thereof;
provided, however, if such date or any such anniversary
thereof is not a Business Day, then the Rent Calculation Date
shall be the immediately preceding Business Day.
5.4 SUPPLEMENTAL RENT:
(a) AMOUNT: Lessee will pay Supplemental Rent to Lessor in
relation to each calendar month (or part of a month) of the
Term, on the 10th day following the end of that calendar month
(except that the last payment of Supplemental Rent during the
Term shall be paid on the Final Expiry Date), calculated as
follows:
45 | 982 |
agreement_26.md | 45
(i) AIRFRAME: in respect of an Airframe 6C/24,000 Flight
Hour Block Structural Check, an amount equal to the
Airframe 6C/24,000 Flight Hour Block Structural Check
Supplemental Rent Rate, pro-rated on a per diem basis,
if applicable, for any calendar month which falls
partially within the Term and partially outside the Term
(the "Airframe 6C/24,000 Flight Hour Block Structural
Check Supplemental Rent"); | 983 |
agreement_26.md | (ii) ENGINE LIFE-LIMITED PARTS: in respect of the
Life-Limited Parts for each Engine, an amount equal to
the Engine LLP Supplemental Rent Rate for each Engine
Cycle operated by that Engine during that calendar month
("Engine LLP Supplemental Rent"); provided, however,
Lessee shall have no obligation to make any payment of
Engine LLP Supplemental Rent in respect of any period
during which the Engine installed on the Aircraft is
subject to a maintenance cost per hour agreement or
similar arrangement with the Agreed Maintenance
Performer so long as (x) such agreement or arrangement
is approved in advance (i.e., before the enrollment of
the Engine installed on the Aircraft in any such
agreement or arrangement) in writing by Lessor (such
approval not to be unreasonably withheld), and (y) in
the event that the Engine installed on the Aircraft is
enrolled in any such agreement or arrangement before
Lessor approves such agreement or arrangement, or in the
event that any Engine enrolled in any such agreement or
arrangement is to be installed on the Aircraft before
Lessor approves such agreement or arrangement, then
Lessee shall pay and continue to pay Engine LLP
Supplemental Rent in accordance with this subclause for
all periods prior to the time at which Lessee obtains
Lessor's written approval (which approval shall not be
unreasonably delayed) of the applicable agreement or
arrangement (if ever);and (z) for the avoidance of doubt
it is agreed that at least one of the criteria upon
which such a maintenance cost per hour agreement will be
approved by the Lessor shall be a requirement for that
agreement to expressly include an adequate fund
provision specifically allocated to LLP's to which the
Lessor will have rights of access under certain
conditions, and drawdowns on such LLP fund will not
diminish the adequacy of any fund allocation applicable | 984 |
agreement_26.md | conditions, and drawdowns on such LLP fund will not
diminish the adequacy of any fund allocation applicable
to the engine performance restoration. | 985 |
agreement_26.md | (iii) ENGINE PERFORMANCE RESTORATION: in respect of each
Engine, an amount equal to the Engine Supplemental Rent
Rate for each Engine Flight Hour (or fraction thereof)
operated by that Engine during that calendar month
("Engine Supplemental Rent"); provided, however, Lessee
shall have no obligation to make any payment of Engine
Supplemental Rent in respect of any period
46
during which the Engine installed on the Aircraft is
subject to a maintenance cost per hour agreement or
similar arrangement with the Agreed Maintenance
Performer so long as (x) such agreement or arrangement
is approved in advance (i.e., before the enrollment of
the Engine installed on the Aircraft in any such
agreement or arrangement) in writing by Lessor (such
approval not to be unreasonably withheld), and (y) in
the event that the Engine installed on the Aircraft is
enrolled in any such agreement or arrangement before
Lessor approves such agreement or arrangement, or in the
event that any Engine enrolled in any such agreement or
arrangement is to be installed on the Aircraft before
Lessor approves such agreement or arrangement, then
Lessee shall pay and continue to pay Engine Supplemental
Rent in accordance with this subclause for all periods
prior to the time at which Lessee obtains Lessor's
written approval (which approval shall not be
unreasonably delayed) of the applicable agreement or
arrangement (if ever); | 986 |
agreement_26.md | (iv) APU: in respect of the APU, an amount equal to the APU
Supplemental Rent Rate for each Flight Hour operated by
the APU during that calendar month ("APU Supplemental
Rent"); provided, however, Lessee shall have no
obligation to make any payment of APU Supplemental Rent
in respect of any period during which the APU installed
on the Aircraft is subject to a maintenance cost per
hour agreement or similar arrangement with the APU
manufacturer or Agreed Maintenance Performer so long as
(x) such agreement or arrangement is approved in advance
(i.e., before the enrollment of the APU installed on the
Aircraft in any such agreement or arrangement) in
writing by Lessor (such approval not to be unreasonably
withheld), and (y) in the event that the APU installed
on the Aircraft is enrolled in any such agreement or
arrangement before Lessor approves such agreement or
arrangement, or in the event that any APU enrolled in
any such agreement or arrangement is to be installed on
the Aircraft before Lessor approves such agreement or
arrangement, then Lessee shall pay and continue to pay
APU Supplemental Rent in accordance with this subclause
for all periods prior to the time at which Lessee
obtains Lessor's written approval (which approval shall
not be unreasonably delayed) of the applicable agreement
or arrangement (if ever); and
(v) LANDING GEAR: in respect of the Landing Gear, an amount
equal to the Landing Gear Supplemental Rent Rate,
pro-rated on a per diem basis, if applicable, for any
calendar month which falls partially within the Term and
partially outside the Term ("Landing Gear Supplemental
Rent");
47 | 987 |
agreement_26.md | 47
provided that with respect to any maintenance cost per
hour agreement described in subclauses (iii) and (iv)
above to be approved by Lessor, such agreement must (or
as otherwise reasonably agreed by Lessor and Lessee)
have (i) payments and maintenance structured on a fully
restored zero-time basis where the Approved Maintenance
Performer will be responsible for the payment of the
redelivery maintenance adjustment provided for in Part 3
of Schedule 3 for all Engine or APU use since the last
Engine Performance Restoration or APU Performance
Restoration, as applicable, during the Lease Term or
since new if no such Engine Performance Restoration or
APU Performance Restoration, as applicable, has been
accomplished during the Lease Term, (ii) payments and/or
corresponding maintenance inclusive of all applicable
airworthiness directives, manufacturer category 1/2/3
service bulletins, and domestic object damage, (iii)
satisfactory restrictions on the use of multiple repair
used serviceable exchange parts, incident materials,
manufacturer approved FAA PMA parts, and parts with
non-manufacturer approved repairs, (iv) satisfactory
flight hour and calendar warranty provisions and
periods, (v) satisfactory test cell performance
guarantees and performance retention guarantees, and
(vi) satisfactory provisions for assignment to Lessor.
(b) ADJUSTMENT: The Supplemental Rent Rates, if applicable,
shall be adjusted after the Delivery Date not more
frequently than annually (with any such adjustment
having retrospective application as appropriate to
reflect the provisions of paragraph (ii) below and the
amount required to give effect to such retrospective
application shall be payable by Lessee upon demand by
Lessor) based on the following: | 988 |
agreement_26.md | (i) ANNUAL SUPPLEMENTAL RENT ADJUSTMENT: upwards by
the Annual Supplemental Rent Adjustment commencing
on January 1, 2005 and each annual anniversary
date thereafter; and
(ii) HOUR TO CYCLE RATIO ADJUSTMENT: Lessor and Lessee
acknowledge that the Engine Supplemental Rent Rate
is based upon the assumption that the Aircraft
will operate on the Assumed Ratio. If that
assumption proves to be incorrect at any time for
any period of twelve (12) consecutive months
during the Term based upon Lessee's actual
operating experience during such twelve (12)
months, and in the case of the Assumed Ratio the
hour to cycle ratio differs from the Assumed Ratio
by more than 0.1 during such twelve (12) month
period, (i) Lessor shall have the right, upon
written notice to Lessee, to adjust the Engine
Supplemental Rent Rate (in the case of a decrease
in the ratio below the Assumed Ratio) and (ii)
Lessor will make that adjustment (in the case of
an increase in the ratio above the Assumed Ratio)
in respect of Engine Supplemental Rent payable for
the next year of the Lease Term. The Engine
Supplemental Rent Rate shall be adjusted by
48
calculating the actual engine hour to cycle ratio
for the applicable 12-month period and using that
to select the corresponding Engine Supplemental
Rent Adjusted Value adjustment dollar figure from
the Assumed Ratio Adjustment Table in Schedule 7.
If actual hour to cycle ratio falls outside the
specific ratios set forth in the Assumed Ratio
Adjustment Table in Schedule 7, then the Engine
Supplemental Rent Adjusted Value shall be
determined by extrapolating (or interpolating)
from (or between) the nearest observed values in
the table. | 989 |
agreement_26.md | (iii) ANNUAL UTILIZATION ADJUSTMENT: Lessor and Lessee
acknowledge that the Airframe 6C/24,000 Flight
Hour Block Structural Check Supplemental Rent Rate
is based upon the assumption that the Airframe
will operate at the Assumed Annual Utilization. If
that assumption proves to be incorrect at any time
for any period of twelve (12) consecutive months
during the Term based upon Lessee's actual
operating experience during such twelve (12)
months, (i) Lessor shall have the right, upon
written notice to Lessee, to adjust the Airframe
6C/24,000 Flight Hour Block Structural Check
Supplemental Rent Rate (in the case of utilization
above the Assumed Annual Utilization) and (ii)
Lessor, upon written request from Lessee, will
make that adjustment (in the case of an increase
in the utilization below the Assumed Annual
Utilization). The Airframe 6C/24,000 Flight Hour
Block Structural Check Supplemental Rent Rate
shall be adjusted by calculating the actual
Airframe utilization for the applicable 12-month
period and using that to select the corresponding
Airframe Structural Check Reserve Amount from the
Assumed Annual Utilization Adjustment Table in
Schedule 7. If actual utilization falls outside
the specific values set forth in the Assumed
Annual Utilization Adjustment Table in Schedule 7,
then the adjusted value shall be determined by
extrapolating (or interpolating) from (or between)
the nearest observed values in the table. | 990 |
agreement_26.md | (c) ADJUSTMENT/ABATEMENT FOR ENGINE EVENT OF LOSS: If
following an Engine Event of Loss the maintenance status
for the replacement Engine (pursuant to Clause 8.13(a))
is such that the Engine LLP Supplemental Rent and Engine
Supplemental Rent held with respect to the Engine which
suffered the Engine Event of Loss differs from that
which corresponds to the maintenance status of such
replacement Engine, Lessor shall calculate the amount of
the adjustment to the amounts of Engine LLP Supplemental
Rent and Engine Supplemental Rent in respect of such
Engine required so that the amounts then held correspond
to the status of the replacement Engine. Any adjustment
which requires an increase in the amounts held as Engine
LLP Supplemental Rent and the Engine Supplemental Rent
shall be promptly paid by Lessee to Lessor in cash. Any
adjustment which
49
requires a decrease in amounts held as Engine LLP
Supplemental Rent and/or Engine Supplemental Rent shall
be effected, so long as no Default or Event of Default
is then in existence by Lessor abating Lessee's payment
of Engine LLP Supplemental Rent and/or Engine
Supplemental Rent in respect of such replacement Engine
until the amounts of Engine LLP Supplemental Rent and/or
Engine Supplemental Rent correspond to the status of the
replacement Engine.
(d) LESSOR'S PROPERTY: Lessee acknowledges and agrees that
Supplemental Rent is additional rent for the leasing of
the Aircraft and not cash collateral or other collateral
security for Lessee's maintenance obligations under this
Agreement. Once paid all Supplemental Rent is the
property of Lessor, it is not refundable to Lessee under
any circumstances whatsoever and Lessee has no interest
therein whatsoever. The foregoing is subject to Lessor's
obligations under and in accordance with Clause 7.4 or
11.1(b) of this Agreement. | 991 |
agreement_26.md | (e) SHORTFALLS. In any case in which the amount paid to
Lessee by Lessor pursuant to Clause 7.4 is not
sufficient to pay the cost of such check, overhaul,
inspection, performance restoration or parts
replacement, Lessee shall be obliged to and shall meet
such shortfall from its own resources and shall not
subsequently be permitted to claim reimbursement of such
amounts under this Agreement. | 992 |
agreement_26.md | (f) LETTERS OF CREDIT. At Lessee's option and with Lessor's
agreement Lessee may provide at the Delivery Date and
annually thereafter during the Lease Term, letters of
credit issued by a bank acceptable to Lessor, in lieu of
Supplemental Rent, in respect of Aircraft utilization in
Flight Hours, Cycles or calendar months as appropriate
to each maintenance event type. Each letter of credit
shall have validity of 6 months or until issue of a
replacement letter of credit (whichever occurs later).
Payment of the redelivery maintenance adjustments at the
Redelivery Date by Lessee to Lessor pursuant to Clause
12.5 will terminate Lessor's requirement for such
letters of credit. In addition, each letter of credit
shall be issued in a form and from a bank acceptable to
Lessor. The first letter of credit issued at the
Delivery Date shall be for the amount of Supplemental
Rent that would accrue for the first 3 months of
operation with an assumed utilization of 250 Flight
Hours and 83 Cycles per month and the amount of
Supplemental Rent that would have accrued on the last
day of the month prior to the Delivery Date.
Semi-annually thereafter, the letter of credit shall be
the amount of Supplemental Rent that would have accrued
on the last day of the month prior to issue plus that
which would accrue for the following 3 months of
operation with an assumed utilization of 250 Flight
Hours and 83 Cycles per month less any Supplemental Rent
reimbursement that would have occurred in respect of the
maintenance events outlined herein to reduce the
Supplemental Rent balance in respect
50
of that maintenance event by the lesser of (a) the
relevant Supplemental Rent balance and (b) the valid
invoice in respect of that maintenance event.
5.5 PAYMENTS: | 993 |
agreement_26.md | 5.5 PAYMENTS:
All payments by Lessee to Lessor under this Agreement
will be made for value on the due date in Dollars and in
same day funds to the account in the United States as
Lessor may advise Lessee and Beneficiary in writing.
5.6 DEFAULT INTEREST:
If Lessee fails to pay any amount payable under this Agreement on
the due date, Lessee will pay on demand from time to time to Lessor
interest (both before and after judgment) on that amount, from the
due date to the date of payment in full by Lessee to Lessor, at the
Interest Rate. All such interest will be compounded monthly and
calculated on the basis of the actual number of days elapsed and a
360 day year.
5.7 WITHHOLDING:
(a) All payments by Lessee, or with respect to any obligation of
Lessee, under or in connection with any of the Transaction
Documents will be made without setoff or counterclaim, free
and clear of and without deduction or withholding for or on
account of any Tax or other amount, except to the extent that
any such deduction or withholding is required by applicable
law with respect to any Tax;
(b) if any Tax is required by any applicable law to be deducted or
withheld from or with respect to any amount payable by Lessee
or with respect to any obligation of Lessee under any of the
Transaction Documents to or for the benefit of any Tax
Indemnitee, Lessee shall: | 994 |
agreement_26.md | (i) unless such Tax is a Lessor Tax, pay such additional
amount as shall be necessary to enable such Tax
Indemnitee to receive, after such deduction or
withholding (including any deduction or withholding with
respect to such additional amount) and after subtracting
the net amount of all Taxes (including Lessor Taxes)
payable by such Tax Indemnitee as a result of such Tax
Indemnitee's receipt or accrual of such additional
amount, the amount which such Tax Indemnitee would have
received if such deduction or withholding had not been
required;
(ii) pay the amount required to be deducted or withheld to
the appropriate Government Entity or other taxing
authority in a timely and proper manner; and
51
(iii) deliver to such Tax Indemnitee, not later than thirty
(30) days after the date on which such payment is paid,
an original receipt issued by the relevant Government
Entity or other taxing authority or other documentation
reasonably acceptable to such Tax Indemnitee verifying
that the obligation described in subclause (ii) has been
timely and properly performed.
5.8 TAX INDEMNITY: | 995 |
agreement_26.md | Lessee shall pay, and on demand shall indemnify, protect, defend and
hold harmless each Tax Indemnitee from and against, all Taxes (other
than any and all Lessor Taxes or any Taxes which Lessee would not be
responsible for under Clause 14.2(b)) which are imposed upon,
attributable to, or with respect to, or are required to be paid in
connection with, or as a result of, any of the payments or
transactions or activities contemplated in the Transaction Documents
(regardless of how or when such Taxes are imposed, whether imposed
upon a Tax Indemnitee, Lessee, the Aircraft or otherwise),
including, without limitation, Taxes imposed on or with respect to,
or required to be paid in connection with or as a result of
(directly or indirectly), any of the following: (i) the Aircraft,
the Airframe, any Engine or any Part or any interest in any thereof,
(ii) the purchase, acceptance, delivery, financing, mortgaging,
registration, re-registration, de-registration, importation,
exportation, ownership, leasing, subleasing, wet-leasing,
chartering, presence, management, control, possession, performance,
use, operation, repair, maintenance, condition, service, overhaul,
substitution, replacement, pooling, interchange, removal,
alteration, improvement, modification, refurbishment,
transportation, landing, storage, redelivery, repossession, sale,
transfer of title or other disposition of the Aircraft, the
Airframe, any Engine or any Part or any interest in any thereof, or
(iii) any Rent, receipts, gains, earnings, income, insurance
proceeds, or other amounts paid or payable or received or receivable
with respect to the Aircraft, the Airframe, any Engine or any Part
or any interest in any thereof or the transactions contemplated in | 996 |
agreement_26.md | with respect to the Aircraft, the Airframe, any Engine or any Part
or any interest in any thereof or the transactions contemplated in
the Transaction Documents, or (iv) any of the Transaction Documents
or any amendment or supplement thereto or the execution, delivery,
filing, recording, performance or enforcement of any thereof. | 997 |
agreement_26.md | Each Tax Indemnitee shall, at the expense of Lessee, take
commercially reasonable actions with a view toward mitigating any
event or circumstance which would give rise to or result in a claim
for indemnification pursuant to this Clause 5.8 or a withholding Tax
pursuant to Clause 5.7; provided, however, nothing herein shall
require any Tax Indemnitees to take any action which it shall have
determined, in its sole discretion exercised in good faith, may
result in a material economic, legal or regulatory disadvantage to
such Tax Indemnitee.
5.9 SALES TAX:
52
All amounts payable by Lessee, or with respect to any obligation of
Lessee, under this Agreement and the other Transaction Documents,
are exclusive of any Sales Tax. If any Sales Tax is required by any
applicable law to be paid with respect to any of the transactions,
activities or payments contemplated in any of the Transaction
Documents, Lessee shall (i) pay such Sales Tax to the appropriate
Government Entity or other taxing authority in a timely and proper
manner, and indemnify each Tax Indemnitee from and against such
Sales Tax, in accordance with the provisions of this Clause 5, and
(ii) deliver to Lessor, not later than thirty (30) days after the
date on which such Sales Tax is due, an original receipt issued by
the relevant Government Entity or other taxing authority or other
documentation reasonably acceptable to such Tax Indemnitee verifying
that the obligation described in subclause (i) has been properly
performed.
5.10 VALUE ADDED TAX:
(a) For the purposes of this Clause 5:
(i) VAT means value added tax and any goods and services,
sales or turnover tax, imposition or levy of a like
nature; and | 998 |
agreement_26.md | (i) VAT means value added tax and any goods and services,
sales or turnover tax, imposition or levy of a like
nature; and
(ii) SUPPLY includes anything on or in respect of which VAT
is chargeable;
(b) Lessee shall pay to Lessor or the relevant taxing authority,
as the case may be, the amount of any VAT chargeable in
respect of any supply for VAT purposes under this Agreement in
a timely and proper manner; and
(c) Each amount stated as payable by Lessee under this Agreement
is exclusive of VAT (if any), and if VAT is payable in respect
of any amount as aforesaid, Lessee shall pay all such VAT and
shall indemnify Lessor against any claims for the same (and
where appropriate Lessee shall increase the payments which
would otherwise be required to be made hereunder so that
Lessor is left in the same position as it would have been in
had no VAT been payable); and Lessee shall provide evidence to
Lessor, if available, in respect of payment of any such VAT.
5.11 PAYMENTS; TAX REPORTS; INFORMATION: | 999 |