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Exhibit 10.41
EXECUTION COPY
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AIRCRAFT SECURITY AGREEMENT
(Direct Loans)
(CH-282SK)
dated as of December 27, 2001
between
CHAUTAUQUA AIRLINES, INC.,
as Borrower
and
JPMORGAN CHASE BANK,
as Security Trustee
One Embraer EMB-145LR Aircraft
U.S. Registration No. N282SK
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Table of Contents
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SECTION 1. DEFINITIONS..............................................................................1
Section 1.1 Certain Definitions................................................................1
Section 1.2 Bankruptcy Default.................................................................2
SECTION 2. SECURITY.................................................................................2
Section 2.1 Grant of Security..................................................................2
SECTION 3. COVENANTS OF THE BORROWER................................................................5
Section 3.1 Liens..............................................................................5
Section 3.2 Possession.........................................................................5
Section 3.3 Registration and Operation.........................................................9
Section 3.4 Loss, Destruction, Requisition, Etc...............................................15
Section 3.5 Other Obligations.................................................................18
Section 3.6 Agreement Regarding Engines.......................................................20
Section 3.7 Quiet Enjoyment...................................................................20
Section 3.8 Inspection........................................................................21
SECTION 4. RECEIPT, DISTRIBUTION AND APPLICATION OF CERTAIN FUNDS..................................22
Section 4.1 Application of Income from the Collateral.........................................22
Section 4.2 Payments of Principal, Interest and Other Amounts.................................22
Section 4.3 Withholding.......................................................................23
SECTION 5. REMEDIES OF THE SECURITY TRUSTEE UPON AN EVENT OF DEFAULT...............................23
Section 5.1 Remedies with Respect to Collateral...............................................23
Section 5.2 Remedies Cumulative...............................................................24
Section 5.3 Discontinuance of Proceedings.....................................................25
SECTION 6. DUTIES OF THE SECURITY TRUSTEE..........................................................25
Section 6.1 Notice of Event of Default; Action Upon Event of Default..........................25
Section 6.2 Action Upon Instructions..........................................................25
Section 6.3 Indemnification...................................................................26
Section 6.4 No Duties Except as Specified in Security Agreement or Instructions...............26
Section 6.5 No Action Except Under Security Agreement or Instructions.........................26
Section 6.6 Reports, Notices, Etc.............................................................26
Section 6.7 Removal of Certain Liens..........................................................27
Section 6.8 No Charges........................................................................27
SECTION 7. THE SECURITY TRUSTEE....................................................................27
Section 7.1 Acceptance of Trusts and Duties...................................................27
Section 7.2 Absence of Duties.................................................................27
Section 7.3 No Representations or Warranties as to the Aircraft or Documents..................28
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Section 7.4 No Segregation of Moneys; No Interest.............................................28
Section 7.5 Reliance; Security Trustees; Advice of Counsel....................................29
Section 7.6 Capacity in Which Acting..........................................................29
Section 7.7 Compensation and Reimbursement....................................................29
SECTION 8. SUCCESSOR TRUSTEE.......................................................................30
Section 8.1 Resignation of Security Trustee; Appointment of Successor.........................30
SECTION 9. SUPPLEMENTS AND AMENDMENTS TO THIS SECURITY AGREEMENT AND OTHER DOCUMENTS...............31
Section 9.1 Supplemental Security Agreements..................................................31
Section 9.2 Security Trustee Protected........................................................31
Section 9.3 Documents Mailed to Lender........................................................31
SECTION 10. INVESTMENT OF SECURITY FUNDS...........................................................31
Section 10.1 Investment of Security Funds......................................................31
Section 10.2 Liability for Losses..............................................................32
SECTION 11. MISCELLANEOUS..........................................................................32
Section 11.1 Termination of Security Agreement.................................................32
Section 11.2 No Legal Title to Collateral in Lender............................................33
Section 11.3 Sale of the Aircraft by Security Trustee is Binding...............................33
Section 11.4 Benefit of Security Agreement.....................................................33
Section 11.5 Section 1110......................................................................33
Section 11.6 The Borrower's Performance and Rights.............................................33
Section 11.7 Notices...........................................................................33
Section 11.8 Severability......................................................................34
Section 11.9 Separate Counterparts.............................................................34
Section 11.10 Successors and Assigns...........................................................34
Section 11.11 Headings.........................................................................34
Section 11.12 Governing Law; Jurisdiction......................................................34
Section 11.13 Normal Commercial Relations......................................................35
Section 11.14 Confidential Information.........................................................35
Section 11.15 Notices, Instructions, Consents, Execution and Waiver............................35
Section 11.16 Register.........................................................................36
Section 11.17 Security Deposit Agreement.......................................................36
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Annex A -- Definitions
Annex B -- Foreign Registration
Annex C -- Insurance
Annex D -- Permitted Countries
Exhibit A -- Form of Security Agreement Supplement
Exhibit B -- Form of Lease Assignment
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AIRCRAFT SECURITY AGREEMENT
(CH -282SK)
This AIRCRAFT SECURITY AGREEMENT (CH-282SK), dated as of December 27,
2001 is between CHAUTAUQUA AIRLINES, INC., a New York corporation (together with
its successors and permitted assigns, the "BORROWER") and JPMORGAN CHASE BANK, a
New York banking corporation, as Security Trustee hereunder (herein called,
together with its permitted successors and assigns, the "SECURITY TRUSTEE").
W I T N E S S E T H:
WHEREAS, the Lender (such term and other capitalized terms used herein
without definition being defined as hereinafter provided) has agreed, pursuant
and subject to the terms and conditions of the Loan Agreement, to make a loan to
the Borrower, the proceeds of which will be used to enable the Borrower to
purchase the Aircraft, such loan to be evidenced by the Notes to be issued by
the Borrower; and
WHEREAS, the Borrower desires by this Security Agreement, among other
things, to grant to the Security Trustee a Lien on the Collateral in accordance
with the terms hereof as security for the Secured Obligations; and
WHEREAS, all things have been done to make the Notes, when executed,
issued and delivered by the Borrower, the legal, valid and binding obligation of
the Borrower; and
WHEREAS, all things necessary to make this Security Agreement a legal,
valid and binding obligation of the Borrower and the Security Trustee, for the
uses and purposes herein set forth, in accordance with its terms, have been done
and performed and have occurred;
NOW, THEREFORE, it is hereby covenanted and agreed by and between the
parties hereto as follows:
SECTION 1. DEFINITIONS
Section 1.1 CERTAIN DEFINITIONS. For all purposes of this Security
Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
(a) capitalized terms used herein have the meanings set forth in Annex
A hereto unless otherwise defined herein;
(b) the definitions stated herein and those stated in Annex A apply
equally to both the singular and the plural forms of the terms defined;
(c) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Security Agreement as a whole and not to any
particular Section or other subdivision;
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(d) references herein to sections, appendices and exhibits pertain to
sections, appendices and exhibits in or to this Security Agreement;
(e) references to any agreement shall be to such agreement, as
amended, modified or supplemented; and
(f) references to any Person shall include such Person's successors
and assigns subject to any limitations provided for herein or in the other
Operative Agreements.
Section 1.2 BANKRUPTCY DEFAULT For purposes of each Operative
Agreement, the occurrence and continuance of a Bankruptcy Event shall not be
deemed to prohibit the Borrower from taking any action or exercising any right
that is conditioned on no Bankruptcy Default, Default or Event of Default having
occurred and be continuing if such Bankruptcy Default, Default or Event of
Default consists of the institution of reorganization proceedings with respect
to Borrower under Chapter 11 of the Bankruptcy Code and the trustee or
debtor-in-possession in such proceedings shall have entered into a Section 1110
Agreement and thereafter shall have continued to perform such obligations so
that it is entitled to retain possession of the Aircraft in accordance with
Section 1110.
SECTION 2. SECURITY
Section 2.1 GRANT OF SECURITY. To secure the prompt and complete
payment (whether at the stated maturity, by acceleration or otherwise) of all
principal of, interest on and all other amounts payable by the Borrower under
the Operative Agreements (excluding those arising under or relating to Loan B)
and under the Related Operative Agreements (excluding those arising under or
relating to the Related Loans B) now in existence or hereafter incurred, and the
performance and observance by the Borrower of all the agreements and covenants
to be performed or observed by it for the benefit of the Lender and the Security
Trustee contained in the Operative Agreements (excluding those arising under or
relating to Loan B) and under the Related Operative Agreements (excluding those
arising under or relating to the Related Loans B) and in consideration of the
Note A and the Related Notes A, the premises and of the covenants contained
herein and in the other Operative Agreements and under the Related Operative
Agreements and of other good and valuable consideration given to the Borrower by
the Security Trustee at or before the Borrowing Date (collectively, the "SECURED
OBLIGATIONS"), the receipt of which is hereby acknowledged, the Borrower does
hereby; grant, bargain, sell, convey, transfer, mortgage, assign, pledge, and
confirm unto the Security Trustee and its permitted successors and assigns, for
the security and benefit of the Security Trustee and the Lender, a security
interest in, and mortgage lien on, all estate, right, title and interest of the
Borrower in, to and under, all and singular, the following described properties,
rights, interests and privileges whether now or hereafter acquired (hereinafter
sometimes referred to as the "COLLATERAL"):
(a) the Aircraft, including the Airframe and the Engines, whether or
not any such Engine may from time to time be installed on the Airframe or any
other airframe or any other aircraft, any and all Parts which are from time to
time included within the definitions of "Airframe" or "Engines" and, to the
extent provided herein, all substitutions and replacements of
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and additions, improvements, accessions and accumulations to the Aircraft, the
Airframe, the Engines and any and all such Parts (such Airframe and Engines as
more particularly described in the Security Agreement Supplement executed and
delivered with respect to the Aircraft on the Borrowing Date or with respect to
any substitutions or replacements therefor), and together with all Aircraft
Documents;
(b) the Purchase Agreement, the Purchase Agreement Assignment and the
Bills of Sale to the extent the same relate to continuing rights of the Borrower
in respect of any warranty, indemnity or agreement, express or implied, as to
title, materials, workmanship, design or patent infringement or related matters
with respect to the Airframe or the Engines (reserving to the Borrower, however,
all of the Borrower's other rights and interest in and to the Purchase
Agreement) together with all rights, powers, privileges, options and other
benefits of the Borrower thereunder (subject to such reservation) with respect
to the Airframe or the Engines, including, without limitation, the right to make
all waivers and agreements, to give and receive all notices and other
instruments or communications, to take such action upon the occurrence of a
default thereunder, including the commencement, conduct and consummation of
legal, administrative or other proceedings, as shall be permitted thereby or by
law, and to do any and all other things which the Borrower is or may be entitled
to do thereunder (subject to such reservation), subject, with respect to the
Purchase Agreement, to the terms and conditions of Purchase Agreement
Assignment;
(c) to the extent in each case of the interest of the Security Trustee
pursuant to the terms hereof, all requisition proceeds with respect to the
Aircraft or any Part thereof, and all insurance proceeds with respect to the
Aircraft or any Part thereof, but excluding all proceeds of, and rights under,
any insurance maintained by the Borrower pursuant to Section 3.3(k) and not
required under clauses (A), (B) or (C) of Annex C;
(d) all moneys and securities now or hereafter paid or deposited or
required to be paid or deposited to or with the Security Trustee by or for the
account of the Borrower pursuant to any term of this Security Agreement or any
other Operative Agreement (excluding the Security Deposit Agreement and the
Security Account Control Agreement) and held or required to be held by the
Security Trustee hereunder or thereunder;
(e) any Lease Assignment and any Permitted Lease in each case to the
extent assigned under any Lease Assignment, in each case together with all
rights, powers, privileges, options and other benefits thereunder, including the
right to receive and collect all payments thereunder and to make all waivers and
agreements, to give and receive notices, and to take all action thereunder or in
respect thereof as and to the extent provided in the applicable Lease
Assignment;
(f) all property that may, from time to time, hereafter in accordance
with the provision of this Agreement, be expressly subjected to the Lien of this
Agreement; and
(g) all proceeds of the foregoing;
PROVIDED, HOWEVER, that notwithstanding any of the foregoing provisions of this
SECTION 2, so long as no Event of Default shall have occurred and be continuing,
(a) the
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Borrower shall have the right, to the exclusion of the Security Trustee and the
Lender, to quiet enjoyment of the Aircraft, the Airframe and Engines and the
other Collateral and to possess, use, retain and control the Aircraft, the
Airframe and Engines and the other Collateral and all revenues, income and
profits derived therefrom and (b) the Borrower shall have the right, to the
exclusion of the Security Trustee, with respect to the Purchase Agreement, to
exercise in the Borrower's name all rights and powers of the buyer under the
Purchase Agreement and to retain any recovery of benefit resulting from the
enforcement of any warranty or indemnity under the Purchase Agreement; and
PROVIDED, FURTHER, that notwithstanding the occurrence or continuation of an
Event of Default, the Security Trustee shall not enter into any amendment of the
Purchase Agreement which would increase the obligations of the Borrower
thereunder.
TO HAVE AND TO HOLD all and singular the Collateral unto the Security
Trustee, its permitted successors and assigns, forever, in trust, upon the terms
and trusts herein set forth, for the benefit, security and protection of the
Lender from time to time, and for the uses and purposes and subject to the terms
and provisions set forth in this Security Agreement.
It is expressly agreed that notwithstanding anything herein to the
contrary, the Borrower shall remain liable under the Operative Agreements to
perform all of its obligations thereunder, and, except to the extent expressly
provided herein or in any other Operative Agreement, neither the Security
Trustee nor the Lender shall be required or obligated in any manner to perform
or fulfill any obligations of the Borrower under or pursuant to any thereof, or
to make any inquiry as to the nature or sufficiency of any payment received by
it, or present or file any claim or take any action to collect or enforce the
payment of any amount which may have been assigned to it or to which it may be
entitled at any time or times.
The parties hereto hereby agree that the Manufacturer shall not be
deemed to have knowledge of, and need not recognize the occurrence or
discontinuance of, any Event of Default, unless and until Manufacturer has
received written notice thereof from the Security Trustee addressed to
Manufacturer, to its Director of Contracts by mail to EMBRAER-Empresa Brasileira
de Aeronautica S.A., Av. Brigadeiro Faria Lima, 2170, 12.227-901 Sao Jose dos
Campos-SP, Brazil, or by telecopy to telecopy no.: (55-123) 945-1257, and, in
acting in accordance with the terms and conditions of the Purchase Agreement and
the Purchase Agreement Assignment, Manufacturer may act with acquittance and
conclusively rely upon any such notice.
The Borrower does hereby constitute and appoint the Security Trustee
the true and lawful attorney of the Borrower (which appointment is coupled with
an interest) with full power (in the name of the Borrower or otherwise) to ask
for, require, demand and receive any and all moneys and claims for moneys due
and to become due under or arising out of all property (in each case including
insurance and requisition proceeds) which now or hereafter constitutes part of
the Collateral, to endorse any checks or other instruments or orders in
connection therewith and to file any claims or to take any action or to
institute any proceeding which the Security Trustee may deem to be necessary or
advisable in the premises; PROVIDED that the Security Trustee shall not exercise
any such rights except during the continuance of an Event of Default. Without
limiting the provisions of the foregoing, during the continuance of any Event of
Default but subject to the terms hereof and any mandatory requirements of
applicable law, the Security Trustee shall have the right under such power of
attorney in its discretion to file any
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claim or to take any other action or proceedings, either in its own name or in
the name of the Borrower or otherwise, which the Security Trustee may reasonably
deem necessary or appropriate to protect and preserve the right, title and
interest of the Security Trustee in and to the security intended to be afforded
hereby.
SECTION 3. COVENANTS OF THE BORROWER
Section 3.1 LIENS. Borrower will not directly or indirectly create,
incur, assume or suffer to exist any Lien on or with respect to the Aircraft,
the Airframe, any Engines or any Part or its title thereto or any of its
interest therein or in or to any Permitted Lease or in any of the other
Collateral except:
(a) the respective rights of the Security Trustee and the Borrower as
provided herein and the rights of the parties to the other Operative Agreements
or of any Permitted Lessee under any Permitted Lease; (b) the rights of others
under agreements or arrangements to the extent expressly permitted by Sections
3.2 or 3.3; (c) Liens for Taxes either not yet due or being contested in good
faith by appropriate proceedings so long as such proceedings do not involve any
material danger of the sale, forfeiture or loss of the Aircraft, Airframe or an
Engine or the interests of the Security Trustee therein or any risk of criminal
liability or any material risk of material civil penalty against Lender or
Security Trustee; (d) Liens of suppliers, mechanics, workers, repairers,
employees, airport operators, air traffic control authorities or other like
Liens arising in the ordinary course of business and for amounts the payment of
which are either not yet delinquent for more than 30 days or are being contested
in good faith (and for the payment of which adequate reserves have been
provided) by appropriate proceedings, so long as such proceedings do not involve
any material danger of the sale, forfeiture or loss of the Airframe or an Engine
or the interest of Security Trustee therein or any risk of criminal liability or
any material risk of material civil penalty against Lender or Security Trustee;
(e) Liens arising out of judgments or awards against the Borrower (or any
Permitted Lessee) so long as within 30 days after entry thereof there shall be
in effect with respect to which a stay of execution or such Lien shall have been
discharged or vacated; (f) salvage and similar rights of insurers under policies
of insurance maintained with respect to the Aircraft; (g) Security Trustee Liens
or Lender Liens; and (h) Liens with respect to which the Borrower (or any
Permitted Lessee) has provided a bond or other security adequate in the good
faith opinion of the Lender and the Security Trustee.
Liens described in clauses (a) through (h) above are referred to
herein as "PERMITTED LIENS". The Borrower shall promptly, at its own expense,
take (or cause to be taken) such action as may be necessary duly to discharge
(by bonding or otherwise) any Lien other than a Permitted Lien arising at any
time with respect to any Collateral.
Section 3.2 POSSESSION
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The Borrower will not, without the prior written consent of Security
Trustee (which consent shall not be unreasonably withheld), acting at the
written direction of the Lender, lease or otherwise in any manner deliver,
transfer or relinquish possession of the Aircraft, the Airframe or any Engine or
install any Engine, or permit any Engine to be installed, on any airframe other
than the Airframe; PROVIDED, HOWEVER, subject to the provisions of
Section 3.2(h), that Borrower may, so long as no Event of Default has occurred
and is continuing (except during the Section 1110 Period), without such prior
written consent:
(a) INTERCHANGE AND POOLING
Subject or permit any Permitted Lessee to subject (x) the Airframe to
an Airframe Interchange Agreement or (y) any Engine to normal interchange
agreements or pooling agreements or arrangements, in each case customary in the
commercial airline industry and entered into by Borrower or such Permitted
Lessee, as the case may be, in the ordinary course of business with an air
carrier; PROVIDED, HOWEVER, that (A) (i) no such Agreement, agreement or
arrangement shall under any circumstances result in, contemplate or require the
transfer of title to the Aircraft, Airframe or any Engine and (ii) if the
Borrower's title to any Engine shall nevertheless be divested under any such
agreement or arrangement, such divestiture shall be deemed to be an Event of
Loss with respect to such Engine and the Borrower shall be required to replace
such Engine with a Replacement Engine meeting the requirements of, and in
accordance with, Section 3.4; and (B) the party to such Airframe Interchange
Agreement or interchange agreement is not then subject to a proceeding under
applicable bankruptcy, insolvency or reorganization laws on the date such
interchange agreement is entered into.
(b) TESTING AND SERVICE
Deliver or permit any Permitted Lessee to deliver possession of the
Aircraft, Airframe, any Engine or any Part (i) to the manufacturer thereof or to
any third-party maintenance provider, for testing, service, repair, maintenance
or overhaul work on the Aircraft, Airframe, any Engine or any Part, or, to the
extent required or permitted by the terms of Section 3.3, for alterations or
modifications in or additions to the Aircraft, Airframe or any Engine or (ii) to
any Person for the purpose of transport to a Person referred to in the preceding
clause (i).
(c) TRANSFER TO U.S. GOVERNMENT
Transfer or permit any Permitted Lessee to transfer possession of the
Aircraft, Airframe or any Engine to the U.S. Government, in which event Borrower
shall promptly notify Security Trustee in writing of any such transfer of
possession and, in the case of any transfer pursuant to CRAF, in such
notification shall identify by name, address and telephone numbers the
Contracting Office Representative or Representatives for the Military Airlift
Command of the United States Air Force to whom notices must be given and to whom
requests or claims must be made to the extent applicable under CRAF.
(d) INSTALLATION OF ENGINES ON OWNED AIRCRAFT
Install or permit any Permitted Lessee to install an Engine on an
airframe owned by the Borrower or such Permitted Lessee, as the case may be,
free and clear of all Liens, except (a) Permitted Liens and those that do not
apply to the Engines and (b) the rights of third parties
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under normal interchange or pooling agreements and arrangements of the type that
would be permitted under Section 3.2(a).
(e) INSTALLATION OF ENGINES ON OTHER AIRFRAMES
Install or permit any Permitted Lessee to install an Engine on an
airframe leased to the Borrower or such Permitted Lessee, or purchased by the
Borrower or such Permitted Lessee and subject to a mortgage, security agreement,
conditional sale or other secured financing arrangement, but only if (a) such
airframe is free and clear of all Liens, except (i) the rights of the parties to
such lease, or any such secured financing arrangement, covering such airframe
and (ii) Liens of the type permitted by clauses (a) and (b) of Section 3.2(d)
and (b) the Borrower or Permitted Lessee, as the case may be, shall have
received from the lessor, mortgagee, secured party or conditional seller, in
respect of such airframe, a written agreement (which may be a copy of the lease,
mortgage, security agreement, conditional sale or other agreement covering such
airframe), whereby such Person agrees that it will not acquire or claim any
right, title or interest in, or Lien on, such Engine by reason of such Engine
being installed on such airframe at any time while such Engine is subject to the
Lien of this Security Agreement.
(f) INSTALLATIONS OF ENGINES ON FINANCED AIRCRAFT
Install or permit any Permitted Lessee to install an Engine on an
airframe owned by the Borrower or such Permitted Lessee, leased to the Borrower
or such Permitted Lessee, or purchased by the Borrower or such Permitted Lessee
subject to a conditional sale or other security agreement under circumstances
where neither Section 3.2(d) or 3.2(e) is applicable; PROVIDED, HOWEVER, that
any such installation shall be deemed an Event of Loss with respect to such
Engine, and Borrower shall comply with Section 3.4(d) hereof in respect thereof.
(g) LEASING
With respect to the Aircraft, Airframe or any Engine, so long as no
Payment Default, Bankruptcy Default or Event of Default has occurred and is
continuing, enter into a lease with any Permitted Air Carrier, but only if:
(i) the Borrower shall provide written notice to Security Trustee
of the Borrower's intent to enter into a Permitted Lease 10 days in advance
of entering into such lease, such notice to be accompanied by the proposed
lease documents;
(ii) At the time that the Borrower enters into such Permitted
Lease, such Permitted Lessee shall not be subject to any bankruptcy,
insolvency, liquidation, reorganization, dissolution or similar proceeding,
shall not be seeking any reorganization or any readjustment of its debts
and shall not be, or shall not have substantially all of its property, in
the possession of any liquidator, trustee, receiver or similar person and,
if such Permitted Lessee is a Permitted Foreign Air Carrier, the United
States then maintains normal diplomatic relations with the country in which
such Permitted Lessee has its principal executive offices (or in the case
of Taiwan, diplomatic relations at least as good as those in effect on the
Borrowing Date);
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(iii) Any such Permitted Lease: (i) shall include provisions for
the maintenance, operation, possession, inspection and insurance of, and
removal of Liens on, the Aircraft that are the same in all material
respects as the applicable provisions of this Security Agreement, (ii)
shall provide that such Permitted Lessee may not further lease or transfer
its interests (except transfers of the type permitted in Sections 3.2(a)
through 3.2(f)), inclusive, in the Aircraft, Airframe or Engines, and (iii)
shall be expressly subject and subordinate to all the terms of this
Agreement and to the rights, powers and remedies of Security Trustee
hereunder;
(iv) In connection with a lease to a Permitted Foreign Air
Carrier, the Borrower shall have furnished Security Trustee and Lender an
opinion (reasonably satisfactory to Lender and Security Trustee) of counsel
(reasonably satisfactory to Lender and Security Trustee), in the country of
domicile of such Permitted Foreign Air Carrier, that (i) the terms of such
lease are the legal, valid and binding obligations of the parties thereto
enforceable under the Laws of such jurisdiction, (ii) it is not necessary
for Lender or Security Trustee to register or qualify to do business in
such jurisdiction, if not already so registered or qualified, as a result,
in whole or in part, of the proposed lease, (iii) the Laws of such
jurisdiction of domicile require fair compensation by the government of
such jurisdiction, payable in a currency freely convertible into Dollars,
for the loss of title to the Aircraft, Airframe or Engines in the event of
the requisition by such government of such title (unless the Borrower shall
provide insurance in the amounts required with respect to hull insurance
under Section 3.3(k) covering the requisition of title to the Aircraft,
Airframe or Engines by the government of such jurisdiction so long as the
Aircraft, Airframe or Engines are subject to such lease), (iv) the laws of
such lessee's country of domicile would give recognition to the Borrower's
title to, and Security Trustee's Lien in respect of, such Engine or the
Airframe and to the registry of such Engine or the Airframe in the name of
the Borrower (or the proposed lessee, as appropriate), (v) the agreement of
such Permitted Foreign Air Carrier that its rights under the lease are
subject and subordinate to all the terms of this Agreement and is
enforceable against such Permitted Foreign Air Carrier under applicable
Law, and (vi) there exist no possessory rights in favor of the Permitted
Foreign Air Carrier under such lease under the Laws of such Permitted
Foreign Air Carrier's country of domicile that would, upon bankruptcy or
insolvency of or other default by the Borrower and assuming that at such
time such Permitted Foreign Air Carrier is not insolvent or bankrupt,
prevent the return or repossession of the Aircraft in accordance with and
when permitted by the terms of Section 5 upon the exercise by Security
Trustee of its remedies under Section 5;
(v) The Borrower shall furnish to Security Trustee a certificate
of its regularly retained independent insurance broker to the effect that
the insurance required by Section 3.3(k) remains in effect at the time such
lease is entered into;
(vi) All necessary documents shall have been duly filed,
registered or recorded in such public offices in the United States and in
such country as may be required fully to preserve the title of the
Borrower, and the first priority perfected security interest (subject to
Permitted Liens) of Security Trustee, in the Aircraft, Airframe and
Engines;
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(vii) The Borrower shall reimburse Security Trustee and Lender
for all of their reasonable out-of-pocket fees and expenses, including,
without limitation, reasonable fees and disbursements of counsel, incurred
by Security Trustee or Lender in connection with any such lease; and
(viii) The Borrower shall have furnished to Security Trustee an
Officer's Certificate to the effect that all conditions precedent provided
for herein relating to entry into such lease have been complied with.
(h) CERTAIN LIMITATIONS ON LEASING OR OTHER RELINQUISHMENT OF
POSSESSION
Notwithstanding anything to the contrary in this Section 3.2:
(i) The rights of any person that receives possession of the
Aircraft in accordance with this Section 3.2 shall be subject and
subordinate to all the terms of this Security Agreement, and to Security
Trustee's rights, powers and remedies hereunder, including, without
limitation (i) Security Trustee's right to repossess the Aircraft pursuant
to Section 5, (ii) Security Trustee's right to terminate and avoid such
lease, delivery, transfer or relinquishment of possession upon the
occurrence of an Event of Default and (iii) the right to require the
Borrower or such other Person to forthwith deliver the Aircraft, the
Airframe and Engines subject to such transfer upon the occurrence of an
Event of Default;
(ii) The Borrower shall remain primarily liable hereunder for the
performance of all the terms of this Agreement and the other Operative
Agreements to the same extent as if such transfer had not occurred, and no
transfer of possession of the Aircraft, the Airframe, any Engine or any
Part or any failure of performance under or with respect to any such
transfer shall in any way discharge or diminish any of the Borrower's
obligations to Security Trustee or Lender hereunder or under any other
Operative Agreement;
(iii) The Borrower shall ensure that no lease, delivery, transfer
or relinquishment permitted under Section 3.2 shall affect the United
States registration of the Aircraft, unless also made in accordance with
the provisions of Section 3.3;
(iv) Any event that constitutes or would, with the passage of
time, constitute an Event of Loss under paragraph (c), (d), or (e) of the
definition of such term (as set forth in Annex A) shall not be deemed to
violate the provisions of Section 3.2; and
(v) Any Wet Lease shall not constitute a delivery, transfer or
relinquishment of possession for purposes of Section 3.2 and shall not be
prohibited by the terms hereof.
Section 3.3 REGISTRATION AND OPERATION.
(a) REGISTRATION AND RECORDATION. Borrower shall cause the Aircraft to
be, and at all times to remain, duly registered with the FAA under the Federal
Aviation Code in the name
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of Borrower or with such other country of registry and in such name as shall be
permitted under Section 3.3(b) below. Borrower shall execute any and all such
documents as may be required by law or as the Lender or Security Trustee may
reasonably request for the purpose of effecting and continuing such
registration. Unless the Lien of this Agreement has been discharged, Borrower
shall also cause this Agreement to be duly recorded and at all times maintained
of record as a first-priority perfected mortgage (subject to Permitted Liens) on
the Aircraft, the Airframe, and each of the Engines (except to the extent that
such perfection or priority cannot be maintained as a result of the failure by
Security Trustee to execute and delivery any necessary documents).
(b) RE-REGISTRATION. So long as no Payment Default, Bankruptcy Default
or Event of Default shall have occurred and be continuing, Borrower may, by 20
days' written notice to Security Trustee, request to change the country of
registration of the Aircraft. Any such change in registration shall be effected
only in compliance with, and subject to all of the conditions set forth in,
Annex B of this Agreement.
(c) MARKINGS. If permitted by applicable Law, on or reasonably
promptly after the Borrowing Date, Borrower will cause to be affixed to, and
maintained in, the cockpit of the Airframe and on each Engine, in each case, in
a clearly visible location a placard of a reasonable size and shape bearing the
following legend, in English: "MORTGAGED TO JPMORGAN CHASE BANK as SECURITY
TRUSTEE". Such placards may be removed temporarily, if necessary, in the course
of maintenance of the Airframe or Engines. If any such placard is damaged or
becomes illegible, Borrower shall promptly replace it with a placard complying
with the requirements of this Section 3.3(c).
(d) COMPLIANCE WITH LAWS. The Borrower shall not, and shall not
allow any other Person to, use, operate, maintain, service, repair or overhaul
the Airframe or any Engine in violation of any Law binding on or applicable to
the Aircraft, the Airframe or any Engine, or in violation of any airworthiness
certificate, license or registration of any Government Entity relating to the
Borrower or the Aircraft, the Airframe or any Engine, except for immaterial or
non-recurring violations with respect to which corrective measures are taken
promptly by the Borrower or Permitted Lessee, as the case may be, upon
discovery, unless (i) the validity thereof is being contested in good faith and
by appropriate proceedings which do not involve a material danger of the sale,
forfeiture or loss of the Aircraft, Airframe or such Engine or the interest of
Security Trustee therein, any risk of criminal liability or any material risk of
material civil liability against Security Trustee or Lender, or (ii) it is not
possible for the Borrower (or a Permitted Lessee) to comply with the laws of a
jurisdiction other than the United States (or other than any jurisdiction in
which the Aircraft is then registered) because of a conflict with the applicable
Laws of the United States (or such jurisdiction in which the Aircraft is then
registered).
(e) OPERATION. Borrower agrees not to operate, use or locate the
Aircraft, the Airframe or any Engine, or allow the Aircraft, the Airframe or any
Engine to be operated, used or located (a) in any area excluded from coverage by
any insurance required by the terms of Section 3.3(k), except in the case of a
requisition by the U.S. Government where Borrower obtains (and provides evidence
of) an indemnity in lieu of such insurance from the U.S. Government, or
insurance from the U.S. Government, covering such area, in accordance with
Section 3.3(k) or (b) in any recognized area of hostilities unless fully covered
in accordance with
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Annex C by war-risk insurance as required by the terms of Section 3.3(k)
(including, without limitation, Section 3.3(k)(iii)), unless in any case
referred to in this Section 3.3(e) the Aircraft is only temporarily operated,
used or located in such area as a result of an emergency, equipment malfunction,
navigational error, hijacking, weather condition or other similar unforeseen
circumstances, so long as Borrower diligently and in good faith proceeds to
remove the Aircraft from such area.
(f) INFORMATION FOR FILINGS. Borrower shall promptly furnish to
Security Trustee such information within Borrower's or any Permitted Lessee's
possession, or reasonably available to or obtainable by Borrower or such
Permitted Lessee, as may be required to enable Security Trustee timely to file
any reports required to be filed by it as Security Trustee under this Agreement
with any Government Entity because of, or in connection with, the interest of
Security Trustee in the Aircraft, Airframe or Engines, or any other part of the
Collateral; PROVIDED, HOWEVER, that with respect to any such information which
Borrower reasonably deems commercially sensitive or confidential, Security
Trustee shall afford Borrower a reasonable opportunity to seek from any such
Government Entity a waiver of the obligation of any such information, or shall
consent to the filing of such information directly by Borrower in lieu of filing
by Security Trustee, and if any such waiver or consent is evidenced to the
reasonable satisfaction of Security Trustee then Borrower shall not be required
to furnish such information to Security Trustee.
(g) MAINTENANCE. The Borrower shall maintain and operate the Aircraft,
the Airframe and each Engine, or cause the Aircraft, the Airframe and each
Engine to be maintained and operated, in accordance with (1) the Borrower's or a
Permitted Lessee's maintenance program for the Aircraft, Airframe and Engines
approved by the FAA under FAA Regulations Part 121 (or, if leased to a Permitted
Foreign Air Carrier, in accordance with a maintenance program approved by or
substantially equivalent to maintenance standards required by the Aviation
Authority of the United States, Netherlands, France, Germany, Japan, Canada or
the United Kingdom (the "MAINTENANCE PROGRAM"), so as to (i) keep the Aircraft,
the Airframe and each Engine in as good operating condition as originally
delivered hereunder, ordinary wear and tear excepted, (ii) keep the Aircraft in
such operating condition as may be necessary to enable the airworthiness
certificate of the Aircraft to be maintained under FAA Regulations parts 21 and
121 or other Aviation Authority then having jurisdiction over the operation of
the Aircraft under regulations which are, on the whole, qualitatively equivalent
to FAA Regulations parts 21 and 121, except to the extent the FAA or other such
Aviation Authority has revoked or suspended the airworthiness certificates for
all aircraft of the same type and (iii) comply with all service, inspection,
maintenance, modification, repair and overhaul regulations, directives and
instructions which are mandatory by the FAA (or, if the Aircraft is registered
in another country, the regulations of such country) upon the operator of the
Aircraft and Engines; (2) the requirements of the Purchase Agreement so as to
preserve the availability of any product warranties thereunder; and (3) except
during periods when a Permitted Lease is in effect, the same standards as the
Borrower uses with respect to aircraft of similar size in its fleet (including
other regional aircraft of comparable size) and, during a period when a
Permitted Lease is in effect, the same standards used by the Permitted Lessee
thereunder with respect to similar aircraft of similar size in its fleet and
operated by such Permitted Lessee in similar circumstances. The Borrower will
not discriminate against the Aircraft (as compared to other
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aircraft of similar size, including other regional aircraft, in the Borrower's
fleet), in respect of maintenance; PROVIDED that the foregoing
non-discrimination provision shall not apply to any Optional Modifications or
Mandatory Modifications (as such terms are defined below) not required to be
complied with prior to the Loan A Maturity Date. The Borrower further agrees
that the Aircraft, Airframe and Engines will be maintained, used, serviced,
repaired, overhauled and inspected in compliance with applicable Laws with
respect to the maintenance of the Aircraft and in compliance with each
applicable airworthiness certificate, license and registration relating to the
Aircraft, Airframe or any Engine issued by the Aviation Authority, other than
minor or non-recurring violations with respect to which corrective measures are
taken promptly upon discovery thereof and except to the extent the Borrower or
Permitted Lessee is contesting in good faith the validity or application of any
such Law or requirement relating to any such certificate, license or
registration in any reasonable manner which does not involve any risk of
criminal liability or greater than non-material risk of material civil penalty
against Security Trustee or Lender, or any material danger of the sale,
forfeiture or loss of the Aircraft, the Airframe, or any Engine. The Borrower
shall maintain the Aircraft Documents in English. The Borrower or a Permitted
Lessee may have the Aircraft, the Airframe, the Engines and any Parts installed
on the Aircraft thereof maintained by a third party under a maintenance
agreement, provided that such third party shall be duly certified by the FAA as
a repair station. Any such maintenance agreement shall require maintenance in a
manner consistent with the requirements of this Agreement.
(h) REPLACEMENT OF PARTS.
Except as otherwise provided herein, the Borrower, at its own cost
and expense, will, or will cause a Permitted Lessee to, at its own cost and
expense, promptly replace (or cause to be replaced) all Parts which may from
time to time be incorporated or installed in or attached to the Aircraft,
Airframe or any Engine and which may from time to time become worn out, lost,
stolen, destroyed, seized, confiscated, damaged beyond repair or permanently
rendered unfit for use for any reason whatsoever. In addition, the Borrower may,
at its own cost and expense, or may permit a Permitted Lessee at its own cost
and expense to, remove (or cause to be removed) in the ordinary course of
maintenance, service, repair, overhaul or testing any Parts, whether or not worn
out, lost, stolen, destroyed, seized, confiscated, damaged beyond repair or
permanently rendered unfit for use; PROVIDED, HOWEVER, that the Borrower, except
as otherwise provided herein, at its own cost and expense, will, or will cause a
Permitted Lessee at its own cost and expense to, replace such Parts as promptly
as practicable. All replacement Parts shall be free and clear of all Liens,
except for Permitted Liens and pooling arrangements to the extent permitted by
Section 3.3(i) below (and except in the case of replacement property temporarily
installed on an emergency basis), and shall be in good operating condition and
have a value and utility not less than the value and utility of the Parts
replaced (assuming such replaced Parts were in the condition required under this
Agreement). Except as otherwise provided herein, all Parts at any time removed
from the Aircraft, Airframe or any Engine shall remain subject to the Lien of
this Agreement, no matter where located, until such time as such Parts shall be
replaced by Parts which have been incorporated or installed in or attached to
the Aircraft, Airframe or such Engine and which meet the requirements for
replacement Parts specified above. Immediately upon any replacement Part
becoming incorporated or installed in or attached to the Aircraft, Airframe or
such Engine as above provided, without further act, (i) such replacement part
shall become subject to the Lien of this Agreement and be deemed part of the
Aircraft, Airframe or such
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Engine for all purposes hereof and thereof to the same extent as the Parts
originally incorporated or installed in or attached to such Aircraft, Airframe
or Engine and (ii) the replaced Part shall thereupon be free and clear of all
rights of the Security Trustee and shall no longer be deemed a Part under this
Agreement.
(i) POOLING OF PARTS.
Any Part removed from the Aircraft, Airframe or any Engine may be
subjected by the Borrower or a Permitted Lessee to a normal pooling arrangement
customary in the airline industry and entered into in the ordinary course of
business of the Borrower or such Permitted Lessee, so long as a Part replacing
such removed Part shall be incorporated or installed in or attached to the
Aircraft, Airframe or such Engine in accordance with Section 3.3(h) as promptly
as practicable after the removal of such removed Part. In addition, any
replacement Part when incorporated or installed in or attached to the Aircraft,
Airframe or any Engine may be owned by any third party subject to such a normal
pooling arrangement, so long as the Borrower, or Permitted Lessee, at its own
cost and expense, as promptly thereafter as reasonably possible either (x)
causes such replacement part to become subject to the Lien of this Agreement,
free and clear of all Liens (except Permitted Liens), at which time such
replacement part shall become a Part or (y) replaces (or causes to be replaced)
such replacement part by incorporating or installing in or attaching to the
Aircraft, Airframe or such Engine a further replacement Part owned by Borrower
or a Permitted Lessee free and clear of all Liens (except Permitted Liens).
(j) ALTERATIONS, MODIFICATIONS AND ADDITIONS.
The Borrower shall, or shall cause a Permitted Lessee to, make (or
cause to be made) such alterations and modifications in and additions to the
Aircraft, Airframe and each Engine as may be required from time to time by
applicable Law, to the extent made mandatory in respect of the Aircraft (a
"MANDATORY MODIFICATION"); PROVIDED, HOWEVER, that the Borrower or any Permitted
Lessee may, in good faith and by appropriate procedure, contest the validity or
application of any Law, rule, regulation or order in any reasonable manner which
does not involve any risk of criminal liability or material risk of material
civil liability against Security Trustee or Lender, does not involve a material
risk of sale, forfeiture or loss of the Aircraft, and does not adversely affect
Security Trustee's Lien on the Aircraft. In addition, so long as no Payment
Default or Event of Default shall have occurred and be continuing, the Borrower,
at its own cost and expense, may, or may permit a Permitted Lessee at its own
cost and expense to, from time to time make such alterations and modifications
in and additions to the Aircraft, Airframe or any Engine (each an "OPTIONAL
MODIFICATION") as the Borrower or such Permitted Lessee may deem desirable in
the proper conduct of its business, including, without limitation, removal of
Parts which the Borrower or such Permitted Lessee deems are obsolete or no
longer suitable or appropriate for use in the Aircraft, Airframe or such Engine
("OBSOLETE PARTS"); PROVIDED, HOWEVER, that (A) the aggregate value of such
removed parts (based on their value on the Delivery Date) shall not exceed
$1,250,000 and (B) no such Optional Modification shall (i) diminish the fair
market value, utility, condition or useful life of the Aircraft or any Engine
below its fair market value, utility, condition or useful life immediately prior
to such Optional Modification (assuming the Aircraft or such Engine was in the
condition required by this Agreement immediately prior to such Optional
Modification), or (ii) cause the Aircraft to cease to have a standard
certificate of airworthiness issued under FAA Regulations Parts 21 and 121
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and cease to be eligible for operation under FAA Regulations Part 121. Except as
otherwise provided herein, title to all Parts (other than Removable Parts (as
defined below)) incorporated in the Aircraft, Airframe or such Engine as the
result of such Optional Modification shall, without further act, become subject
to the Lien of this Agreement. Notwithstanding anything to the contrary in this
Section 3.3(j), the Borrower or a Permitted Lessee may, at any time, remove any
Part (such Part being referred to herein as a "REMOVABLE PART") if (i) such Part
is in addition to, and not in replacement of or substitution for, any Part
originally incorporated in the Aircraft, Airframe or such Engine at the time of
delivery thereof hereunder, (ii) such Part is not required to be incorporated in
the Aircraft, Airframe or such Engine pursuant to the terms of Sections 3.3(g)
or (h), and (iii) such Part can be removed from the Aircraft, Airframe or such
Engine without causing damage to the Aircraft or any Engine that is not repaired
by the Borrower. The Borrower shall be responsible for the cost of any such
removal and repair of any such damage. Removable Parts may be leased from or
financed by third parties. Notwithstanding anything to the contrary contained
herein, title to any Removable Part so leased from or financed by a third party
shall remain vested in such third-party lessor or financing party. Upon the
removal by Borrower or such Permitted Lessee of any Removable Part or Obsolete
Part as above provided, such Part shall no longer be deemed a Part hereunder and
shall be free and clear of all rights of the Security Trustee.
(k) INSURANCE.
(i) BORROWER'S OBLIGATION TO INSURE. Borrower shall comply with,
or cause to be complied with, each of the provisions of Annex C, which
provisions are hereby incorporated by reference as if set forth in full
herein.
(ii) INSURANCE FOR OWN ACCOUNT. Nothing in Section 3.3(k) shall
limit or prohibit (a) Borrower from maintaining the policies of insurance
required under this Section 3.3(k) with higher limits than those specified
in this Section 3.3(k) or (b) Security Trustee or Lender from obtaining
insurance for its own account (and any proceeds payable under such separate
insurance shall be payable as provided in the policy relating thereto);
PROVIDED, HOWEVER, that no insurance may be obtained or maintained that
would limit or otherwise adversely affect the coverage of any insurance
required to be obtained or maintained by Borrower pursuant to this
Section 3.3(k), it being understood that all salvage rights to the Airframe
or the Engines shall remain with the Borrower's insurers at all times.
(iii) INDEMNIFICATION BY GOVERNMENT IN LIEU OF INSURANCE.
Borrower may obtain and maintain, in lieu of insurance against any risk
with respect to the Aircraft described in this Section 3.3(k)
indemnification from, or insurance provided by, the U.S. Government, or
upon the written consent of Security Trustee, acting at the written
direction of the Lender, other Government Entity, against such risk in an
amount that, when added to the amount of insurance (including permitted
self-insurance), if any, against such risk that Borrower (or any Permitted
Lessee) may continue to maintain, in accordance with this Section 3.3(k),
shall be at least equal to the amount of insurance against such risk
otherwise required by this Section 3.3(k).
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(iv) APPLICATION OF INSURANCE PROCEEDS. As between Borrower and
Security Trustee, all insurance proceeds received as a result of the
occurrence of an Event of Loss with respect to the Aircraft or any Engine
under policies required to be maintained by Lessee pursuant to
Section 3.3(k) will be applied as provided in Section 3.5(b). All proceeds
of insurance required to be maintained by Borrower, in accordance with this
Section 3.3(k), in respect of any property damage or loss not constituting
an Event of Loss with respect to the Aircraft, Airframe or any Engine will
be applied in payment (or to reimburse Borrower) for repairs or for
replacement property, and any balance remaining after such repairs or
replacement with respect to such damage or loss shall be paid over to, or
retained by, Borrower.
(v) APPLICATION OF PAYMENTS DURING EXISTENCE OF DEFAULT. Any
amount described in this Section 3.3(k) that is payable or creditable to,
or retainable by, Borrower shall not be paid or credited to, or retained
by, Borrower if at the time such payment, credit or retention would
otherwise occur a Payment Default, a Bankruptcy Default or any Event of
Default shall have occurred and be continuing, but shall instead be held by
or paid over to Security Trustee (so long as the Lien of this Agreement has
not been duly discharged) as security for the obligations of Borrower under
this Agreement and shall be invested and applied pursuant to Section 10.
Section 3.4 LOSS, DESTRUCTION, REQUISITION, ETC.
(a) EVENT OF LOSS WITH RESPECT TO AIRCRAFT.
(i) Upon the occurrence of an Event of Loss with respect to the
Airframe, and any Engine or Engines installed thereon at the time of such
Event of Loss, Borrower shall promptly (and in any event within 10 Business
Days after such occurrence) give Security Trustee written notice of such
Event of Loss. Within 45 days after such occurrence, Borrower shall give
Security Trustee written notice of Borrower's election to make payment in
respect of such Event of Loss, as provided in Section 3.4(c), or to replace
the Airframe, and any such Engines, as provided in Section 3.4(c).
(ii) Any failure by Borrower to give such notice of its election
shall be deemed to be an election of the option set forth in
Section 3.4(b). In addition, Borrower shall not be entitled to elect the
option set forth in Section 3.4(c) if, at the time Security Trustee
receives such notice from Borrower, there shall have occurred and be
continuing a Payment Default, a Bankruptcy Default or an Event of Default.
(iii) For purposes of Section 3.4(b), an Event of Loss with
respect to the Airframe shall be deemed to constitute an Event of Loss with
respect to the Aircraft. For purposes of Section 3.4(c), any Engine not
actually suffering an Event of Loss shall not be required to be replaced.
(b) PAYMENT OF LOAN. If Borrower elects, in accordance with Section
3.4(a), to make payment in respect of any such Event of Loss, then Borrower
shall pay, in the manner and in funds of the type specified in Section 2.2
of the Loan Agreement, the following amounts:
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(i) On or before the Business Day next following the earlier of
(x) the 120th day following the date of the occurrence of such Event of
Loss, and (y) the third day following the receipt of insurance proceeds
with respect to such occurrence (but in any event not earlier than the date
of Borrower's election under Section 3.4(a) to make payment under this
Section 3.4(b)) (such date of payment, the "LOSS PAYMENT DATE"), Borrower
shall prepay the Loan in full in accordance with Section 2.5 of the Loan
Agreement but subject, in the case of Loan B, to Section 2.2(h) of the Loan
Agreement.
(ii) On or before the date required for payment of the amount
specified in paragraph (i) above, Borrower shall also pay to Security
Trustee and the Lender all other amounts due and payable by Borrower to
Security Trustee and the Lender under this Agreement or any other Operative
Agreement but subject, in the case of Loan B, to Section 2.2(h) of the Loan
Agreement.
(c) REPLACEMENT OF AIRFRAME AND ENGINES.
(i) If Borrower elects, in accordance with Section 3.4(a), to
replace the Airframe, and any Engine actually suffering the Event of Loss,
then Borrower shall, as promptly as possible and in any event within 120
days after the occurrence of such Event of Loss, cause to be subjected to
the Lien of this Agreement, in compliance with Section 3.4(e) and as
replacement for the Airframe, and any such Engine, a Replacement Airframe
(which shall comply with subparagraph (ii) below), and for each such Engine
a Replacement Engine, in each case free and clear of all Liens other than
Permitted Liens. If Borrower makes such election, but for any reason fails
or is unable to effect such replacement within such time period and in
compliance with the requirements set forth in Section 3.4(e), then Borrower
shall be deemed to have initially made the election set forth in Section
3.4(b) with the effect that Borrower shall immediately pay, in the manner
and in funds of the type specified in Section 2.2 of the Loan Agreement,
the amounts required under, and in accordance with, Section 3.4(b).
(ii) Any such Replacement Airframe shall be an airframe that is
the same model as the Airframe to be replaced thereby, or an improved
model, and that has a value, utility and remaining useful life, at least
equal to the Airframe to be replaced thereby (assuming that such airframe
had been maintained in accordance with this Agreement). Any such
Replacement Engine shall meet the requirements of, and be subjected to the
Lien of this Agreement in accordance with, Section 3.4(d) (other than the
notice requirement set forth in Section 3.4(d)(i)).
(d) EVENT OF LOSS WITH RESPECT TO AN ENGINE.
(i) NOTICE.
Upon the occurrence of an Event of Loss with respect to an Engine
under circumstances in which an Event of Loss with respect to the Airframe has
not occurred, Borrower shall promptly (and in any event within 10 Business Days
after such occurrence) give Security Trustee written notice of such Event of
Loss.
(ii) REPLACEMENT OF ENGINE.
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Borrower shall, promptly and in any event within 90 days after the
occurrence of such Event of Loss, cause to be subjected to the Lien of this
Agreement, in compliance with Section 3.4(e) and as replacement for the Engine
with respect to which any Event of Loss occurred, a Replacement Engine free and
clear of all Liens other than Permitted Liens. Such Replacement Engine shall be
an engine manufactured by Engine Manufacturer that is the same model as the
Engine to be replaced thereby, or an improved model, and that is suitable for
installation and use on the Airframe, and that has a value, utility and
remaining useful life (without regard to hours and cycles remaining until
overhaul) at least equal to the Engine to be replaced thereby (assuming that
such Engine had been maintained in accordance with the Lease).
(iii) ENGINE EXCHANGE.
Unless a Payment Default, Bankruptcy Default or Event of Default shall
have occurred and be continuing, upon not less than 30 days' prior written
notice to Security Trustee, Borrower may replace any Engine subject to the Lien
of this Agreement with another engine (the "EXCHANGED ENGINE") meeting the
requirements of Section 3.4(d)(ii). Such Exchanged Engine shall be deemed to be
a "Replacement Engine" and Borrower and Security Trustee shall comply with the
provisions of Section 3.4(e) with regard to the Exchanged Engine and the Engine
so replaced.
(e) CONDITIONS TO ANY REPLACEMENT.
(i) DOCUMENTS.
Prior to or at the time of subjecting to the Lien of this Agreement
any Replacement Airframe or Replacement Engine, Borrower shall take each of the
following actions:
(A) cause (i) a Security Agreement Supplement, subjecting such
Replacement Airframe or Replacement Engine to the Security Agreement,
to be filed for recordation with the FAA pursuant to the Federal
Aviation Code and (ii) such UCC financing statements and other
filings, as may be required by applicable law or as the Lender or
Security Trustee may reasonably request, duly executed by Borrower and
to the extent applicable, Security Trustee (and Security Trustee shall
execute and deliver the same), to be filed in such locations as may be
required by applicable law to perfect the Security Trustee's interest
in such Replacement Airframe or Replacement Engine or as such party
may reasonably request;
(B) furnish a certificate of its regularly retained independent
insurance broker to the effect that the insurance provisions of
Section 3.3(k) with respect to such Replacement Airframe or
Replacement Engine have been complied with;
(C) furnish (x) an opinion or opinions of Borrower's counsel
(which may be Borrower's general counsel) reasonably satisfactory to
Security Trustee and addressed to Security Trustee as to the due
registration of any such Replacement Airframe, the ownership of such
Replacement Airframe by Borrower and the absence of Liens of record
with respect to such Replacement Airframe (other than
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Permitted Liens) and the due filing for recordation of such Security
Agreement Supplement with respect to such Replacement Airframe or
Replacement Engine under the Federal Aviation Code and (y) an
Officer's Certificate of the Borrower stating that all conditions
precedent provided for herein to the replacement of the Airframe
and/or Engine have been complied with;
(D) with respect to the replacement of the Airframe, and any
Engine installed thereon at the time of the subject Event of Loss, if
requested by Security Trustee or Lender and at Borrower's expense,
furnish a certified report of a qualified independent aircraft
appraiser, reasonably satisfactory to Security Trustee or Lender,
certifying that such Replacement Airframe and any such Replacement
Engine complies with the value, utility and remaining useful life
requirements set forth in Section 3.4(c)(ii); and
(E) furnish a certificate of a qualified aircraft engineer (who
may be an employee of Borrower) certifying that such Replacement
Engine complies with the value, utility and remaining useful life
requirements set forth in Section 3.4(d)(ii).
(F) furnish an opinion of the Borrower's counsel (which may be
Borrower's general counsel) reasonably satisfactory to Security Trustee and
addressed to Security Trustee to the effect that, (i) in the case of a
Replacement Airframe, Security Trustee will be entitled to the benefits of
Section 1110 with respect to the Replacement Airframe, or (ii) immediately
prior to such replacement, the benefits of Section 1110 were not, solely by
reason of a change in Law or court interpretation thereof, available to
Security Trustee.
Borrower and Security Trustee understand and agree that if at the
time of any replacement of the Airframe or any Engine, as contemplated in
this Section 3.4, the Airframe was registered in a jurisdiction other than
the United States, then the requirements set forth above in this
Section 3.4 relating to compliance with the requirements of the Federal
Aviation Code or the FAA, shall be deemed to refer to the comparable
applicable Law of, and the Aviation Authority of, such other jurisdiction.
(ii) Upon completion of the actions required pursuant to the
preceding clause (i), the Security Trustee shall release from the Lien of
this Agreement the Airframe replaced by a Replacement Airframe and each
Engine replaced by a Replacement Engine (and all Aircraft Documents
relating thereto) by executing and delivering to the Borrower all documents
and instruments as the Borrower may prepare and reasonably request to
evidence such release.
Section 3.5 OTHER OBLIGATIONS.
(a)
(i) NO CHANGE IN PAYMENT OBLIGATIONS. No Event of Loss with respect to
an Engine, or with respect to the Airframe, shall result in, or otherwise allow
or permit (other than
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as provided in Section 3.4(b)), any reduction, deferral, discharge or other
change in the timing or amount of payments under the Loan Agreement.
(ii) SECTION 1110. Borrower and Security Trustee shall, in all events,
be entitled to the benefits of Section 1110 with respect to any Replacement
Airframe or Replacement Engine, and Borrower and Security Trustee shall
cooperate and take such action as the other may reasonably request so as to
ensure the Security Trustee shall be entitled to such benefits.
(iii) REPLACEMENT AIRFRAME AND REPLACEMENT ENGINE. The Borrower shall
reimburse Security Trustee and Lender for all reasonable out-of-pocket costs
(including reasonable attorney's fees) incurred by each of them in connection
with any Replacement Airframe becoming the Airframe hereunder and any
Replacement Engine becoming an Engine hereunder.
(iv) SECURED OBLIGATIONS. The Borrower agrees to timely and fully pay
and perform all of its duties and obligations under the Operative Agreements.
(b) APPLICATION OF PAYMENTS. Any amounts, other than insurance
proceeds in respect of damage or loss not constituting an Event of Loss (the
application of which is provided for in Section 3.3(k)(iv)), received at any
time by Security Trustee or any Permitted Lessee from any Government Entity or
any other Person in respect of any Event of Loss will be applied as follows:
(i) REPLACEMENT OF AIRFRAME AND ENGINES. If such amounts are
received with respect to the Airframe, and any Engine installed thereon at
the time of such Event of Loss, upon compliance by Borrower with the
applicable terms of Section 3.4(a) with respect to the Event of Loss for
which such amounts are received, such amounts shall be paid over to, or
retained by, Borrower.
(ii) LOSS OF ENGINE. If such amounts are received with respect to
an Engine (other than an Engine installed on the Airframe at the time such
Airframe suffers an Event of Loss), upon compliance by Borrower with the
applicable terms of Section 3.4(d) with respect to the Event of Loss for
which such amounts are received, such amounts shall be paid over to, or
retained by, Borrower.
(iii) PAYMENT OF LOSS. If such amounts are received, in whole or
in part, with respect to the Airframe, and Borrower makes, has made or is
deemed to have made the elections set forth in Section 3.4(b), such amounts
shall be applied as follows:
(A) FIRST, to reimburse Security Trustee for its reasonable costs
(including attorney's fees), if any, of procuring such payments; and
(B) SECOND, if the sum described in Section 3.4(b) has not then
been paid in full by Borrower, such amounts shall be paid to Security
Trustee so long as the Lien of this Agreement has not been duly
discharged to the extent necessary to pay in full such sum; and
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(C) THIRD, the remainder, if any, shall be paid to Borrower.
(c) REQUISITION OF AIRCRAFT FOR USE. If any Government Entity shall
requisition for use the Airframe and the Engines or engines installed thereon,
and if the same does not constitute an Event of Loss, Borrower shall promptly
notify Security Trustee of such requisition and all of Borrower's obligations
under this Agreement shall continue to the same extent as if such requisition
had not occurred.
(d) REQUISITION OF AN ENGINE FOR USE. If any Government Entity shall
requisition for use any Engine but not the Airframe, Borrower will replace such
Engine by complying with the applicable terms of Sections 3.4(d) and 3.4(e) to
the same extent as if an Event of Loss had occurred with respect to such Engine,
and any payments received by Security Trustee from such Government Entity with
respect to such requisition shall be paid or retained in accordance with
Section 3.5(b)(ii).
(e) APPLICATION OF PAYMENTS. All payments received by Security
Trustee, or any Permitted Lessee, from any Government Entity for the use of the
Airframe and Engines or engines installed thereon shall be paid over to, or
retained by, Borrower; provided that, if such requisition constitutes an Event
of Loss, then all such payments shall be paid over to Security Trustee so long
as the Lien of this Agreement has not been duly discharged), and held and
applied as provided in Section 3.5(b).
(f) APPLICATION OF PAYMENTS DURING EXISTENCE OF CERTAIN DEFAULTS. Any
amount described in Section 3.4 or 3.5 that is payable or creditable to, or
retainable by Borrower, shall not be paid or credited to, or retained by,
Borrower if at the time such payment, credit or retention would otherwise occur
a Payment Default, Bankruptcy Default or Event of Default shall have occurred
and be continuing, but shall instead be held by or paid over to Security Trustee
so long as the Lien of this Agreement has not been duly discharged and shall be
held and applied as provided in Section 10 hereof. At such time as there shall
not be continuing an Event of Default, Payment Default or Bankruptcy Default,
such amount shall be paid to Borrower to the extent not previously applied in
accordance with this Section 3.5.
Section 3.6 AGREEMENT REGARDING ENGINES.
The Security Trustee agrees, for the benefit of each of the lessor,
conditional seller, mortgagee or secured party of any airframe or engine leased
to, or owned by, the Borrower (or any Permitted Lessee) subject to a lease,
conditional sale, trust indenture or other security agreement that it will not
acquire or claim, as against such lessor, conditional seller, mortgagee or
secured party, any right, title or interest in any engine as the result of such
engine being installed on an airframe subject to the Lien of this Agreement at
any time while such engine is subject to such lease, conditional sale, trust
indenture or other security agreement and owned by such lessor or conditional
seller or subject to a trust indenture or security interest in favor of such
mortgagee or secured party.
Section 3.7 QUIET ENJOYMENT.
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So long as no Event of Default shall have occurred and be continuing,
Security Trustee shall not interfere with Borrower's rights hereunder to
continued possession, use and operation of, and quiet enjoyment of, the
Aircraft.
Section 3.8 INSPECTION.
(a) At all reasonable times while the Aircraft is subject to the Lien
of this Agreement, Security Trustee or its authorized representatives, which may
be the Lender (the "INSPECTING PARTIES"), may upon reasonable notice to Borrower
(which shall be one Business Day if an Event of Default has occurred and is
continuing) inspect the Aircraft, Airframe and Engines (including, without
limitation, the Aircraft Documents) and Borrower shall cooperate, and shall
cause any Permitted Lessee to cooperate, with the Inspecting Parties in
connection with any such inspection (including, without limitation, permitting
any such Inspecting Party to make copies of such Aircraft Documents).
(b) Except during the continuance of any Event of Default while the
Section 1110 Period shall not be in effect, any inspection of the Aircraft
hereunder shall be limited to a visual, walk-around inspection and shall not
include the opening of any panels, bays or other components of the Aircraft,
Airframe or Engines. In addition, (a) the Inspecting Parties shall be fully
covered by their own insurance with respect to any risks incurred in connection
with any such inspection, (b) any such inspection shall be subject to the
safety, security and workplace rules applicable at the location where such
inspection is conducted and any applicable governmental rules or regulations,
(c) in the case of an inspection during a maintenance visit, such inspection
shall not interfere with the normal conduct of such maintenance visit or extend
the time required for such maintenance visit or, in any event, at any time
interfere with the use or operation of the Airframe or any Engine or with the
normal conduct of the Borrower's or a Permitted Lessee's business, and (d) the
Borrower shall not be required to undertake or incur any additional liabilities
in connection with any such inspection. All information obtained in connection
with any such inspection shall be held confidential by the Inspecting Parties
and shall not be furnished or disclosed by them to anyone other than each other,
their bank examiners, auditors, accountants, agents and legal counsel, and
except as may be required by an order of any court or administrative agency or
by any statute, rule, regulation or order of any governmental authority or as
may be necessary to enforce the terms of this Agreement or the other Operative
Agreements, PROVIDED, HOWEVER, that the Lender may during any time it is
offering the Aircraft for sale make customary disclosures to prospective
purchasers of the Aircraft as to the then current flight and maintenance status
of the Aircraft.
(c) With respect to such rights of inspection, neither Lender nor
Security Trustee shall have any duty or liability by reason of not making any
such visit, inspection or survey.
(d) Each Inspecting Party, subject, in case of Security Trustee, to
Section 6.3 or 7.7, shall bear its own expenses in connection with any such
inspection (including the cost of any copies made in accordance with
Section 3.8(a)), provided, that if an Event of Default shall have occurred and
be continuing, the Borrower shall bear all such reasonable expenses, except, in
the case of a Chapter 11 reorganization, during the Section 1110 Period.
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(e) If requested by Security Trustee, Borrower shall promptly advise,
or shall cause any Permitted Lessee to advise, Security Trustee of the date upon
which the Aircraft, Airframe or any Engine undergoes its next scheduled
maintenance visit or next "c" check or other major check, and with respect to
any Engine, the next off-the-wing maintenance, and shall advise Security Trustee
of the name and location of the relevant maintenance performer. An Inspecting
Party shall have the opportunity to attend such scheduled maintenance visit or
"c" check or other major check, subject to the other provisions of this
Section 3.8.
SECTION 4. RECEIPT, DISTRIBUTION AND APPLICATION OF CERTAIN FUNDS
Section 4.1 APPLICATION OF INCOME FROM THE COLLATERAL. After an Event
of Default shall have occurred and be continuing, and the unpaid principal of
the Loan shall have been accelerated (or deemed accelerated), the Security
Trustee shall apply any payments received, any amounts then held and any amounts
realized by the Security Trustee with respect to the Collateral in the following
order of priority: FIRST, so much of such payments or amounts as shall be
required to reimburse the Security Trustee for or to pay the Security Trustee
any unpaid fee or out-of-pocket costs and expenses (to the extent not previously
reimbursed), including reasonable compensation to the Security Trustee's agents
and counsel, and all charges, expenses, liabilities and advances reasonably
incurred or made by the Security Trustee for services under this Security
Agreement and any other amounts owing to the Security Trustee under Section 6.3
hereof and Sections 9.15 and 9.16 of the Loan Agreement shall be applied by the
Security Trustee in reimbursement of such fees, costs, expenses and other
amounts; SECOND, so much of such payments or amounts as shall be required to
reimburse the Lender for payments made by it to the Security Trustee pursuant to
Section 6.3 or 7.7 (to the extent not previously reimbursed) shall be
distributed to the Lender; THIRD, so much of such payments or amounts as shall
be required to pay to the Lender all other amounts payable by the Borrower
pursuant to the Loan Agreement or pursuant to any other provision of any other
Operative Agreement (other than amounts payable pursuant to clause "second" or
"fourth" of this Section 4.1 and other than amounts arising from or relating to
Loan B) to the Lender and remaining unpaid shall be distributed to the Lender;
FOURTH, so much of such payments or amounts as shall be required to pay in full
the accrued but unpaid interest on the Note A to the date of distribution shall
be distributed to the Lender followed by the aggregate unpaid principal amount
of the Note A then due; and fifth, the balance, if any, of such payments or
amounts remaining thereafter shall be distributed to, or as directed by, the
Borrower.
Section 4.2 PAYMENTS OF PRINCIPAL, INTEREST AND OTHER AMOUNTS.
Payments made by the Borrower to the Security Trustee for the account of the
Lender shall constitute payment by the Borrower to the Lender. Provided that the
Borrower shall have paid to the Security Trustee in immediately available funds
amounts then due on the Note A by 12:30 p.m., New York time, the Security
Trustee shall, no later than 2:30 p.m., New York time, on the date of such
payment by the Borrower, remit to the Lender (or as it may direct) all such
amounts so received by it to such address and in such manner (by wire transfer
of immediately available funds if not otherwise specified) as the Lender shall
have designated to the Security Trustee in writing. In the event the Security
Trustee shall fail to make any such payment as provided above after its receipt
of immediately available funds at the place and by the time specified above, the
Security Trustee agrees to compensate the Lender for loss of use of funds at the
Debt Rate.
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Section 4.3 WITHHOLDING. The Security Trustee shall only withhold from
any amounts payable by it as paying agent to the Lender pursuant to Section 4.2
hereof or to the Lender or BNDES under any other Operative Agreement to the
extent the Borrower would be permitted to do so as provided in Section 2.6 of
the Loan Agreement and provided that it shall comply with the requirements set
forth in Section 2.6(c) thereof.
SECTION 5. REMEDIES OF THE SECURITY TRUSTEE UPON AN EVENT OF DEFAULT
Section 5.1 REMEDIES WITH RESPECT TO COLLATERAL. (a) REMEDIES
AVAILABLE. Upon the occurrence of any Event of Default and at any time
thereafter so long as the same shall be continuing following acceleration (or
deemed acceleration) of the Loan pursuant to Section 8.1 of the Loan Agreement,
this Agreement shall be in default, and the Security Trustee (in accordance with
the provisions of Section 6) shall, upon the written direction of the Lender, do
one or more of the following to the extent permitted by, and subject to
compliance with the mandatory requirements of, applicable law then in effect:
(A) demand the Borrower, upon the written demand of the Security
Trustee, at the Borrower's expense, to deliver promptly, and the
Borrower shall deliver promptly, all or such part of the Airframe or
any Engine as the Security Trustee, acting at the direction of the
Lender, may so demand to the Security Trustee or its designee or, the
Security Trustee, at its option, may enter upon the premises where all
or any part of the Airframe or any Engine are located and take
immediate possession of and remove the same by summary proceedings or
otherwise; and/or (B) sell all or any part of the Airframe and any
Engine at public or private sale, whether or not the Security Trustee
shall at the time have possession thereof, as the Security Trustee,
acting at the written direction of the Lender, may determine, or
otherwise dispose of, hold, use, operate, lease to others or keep idle
all or any part of the Airframe or such Engine as the Security
Trustee, in its sole discretion, acting at the written direction of
the Lender, may determine, all free and clear of any rights or claims
of the Borrower, and the proceeds of such sale or disposition shall be
applied in the order of priorities set forth in Section 4.1; and/or
(C) acting at the written direction of the Lender, exercise any other
remedy of a secured party under the Uniform Commercial Code of the
State of New York (whether or not in effect in the jurisdiction in
which enforcement is sought).
Upon every taking of possession of Collateral under this SECTION 5.1,
the Security Trustee shall, acting at the written direction of the Lender,
from time to time, at the expense of the Collateral, make all such
expenditures for maintenance, insurance, repairs, replacements,
alterations, additions and improvements to and of the Collateral, as it may
reasonably deem proper. In each such case, the Security Trustee shall have
the right to maintain, use, operate, store, lease, control or manage the
Collateral and to exercise all rights and powers of the Borrower relating
to the Collateral in connection therewith, as the Security Trustee shall
deem best, acting at the written direction of the Lender, including the
right to enter into any and all such agreements with respect to the
maintenance, insurance, use, operation, storage, leasing, control,
management or disposition of the Collateral or any part thereof as the
Security Trustee may, acting at the written direction of the Lender,
reasonably determine; and the Security Trustee shall be entitled to collect
and receive directly all tolls, rents, revenues, issues, income, products
and profits of the Collateral and every part thereof. Such tolls, rents,
revenues, issues, income, products and profits shall be applied to pay the
expenses of use, operation, storage, leasing, control, management or
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disposition of the Collateral, and of all maintenance, repairs,
replacements, alterations, additions and improvements, and to make all
payments which the Security Trustee may be required or may elect, acting at
the written direction of the Lender, to make, if any, for Taxes, insurance
or other proper charges assessed against or otherwise imposed upon the
Collateral or any part thereof, and all other payments which the Security
Trustee may be required or expressly authorized to make under any provision
of this Security Agreement, as well as just and reasonable compensation for
the services of the Security Trustee and all other amounts owing to the
Security Trustee under Section 7.7, and shall otherwise be applied in
accordance with the provisions of SECTION 4.
If an Event of Default shall have occurred and be continuing and the
Notes shall have been accelerated pursuant to SECTION 8.1 of the Loan
Agreement, and the Security Trustee shall be entitled to exercise remedies
hereunder, at the request of the Security Trustee, acting at the written
direction of the Lender, the Borrower shall promptly execute and deliver to
the Security Trustee such instruments of title and other documents as the
Security Trustee may deem necessary or advisable to enable the Security
Trustee or an agent or representative designated by the Security Trustee,
at such time or times and place or places as the Security Trustee may
specify, to obtain possession of all or any part of the Collateral to which
the Security Trustee shall at the time be entitled hereunder. If the
Borrower shall for any reason fail to execute and deliver such instruments
and documents after such request by the Security Trustee, the Security
Trustee, acting at the written direction of the Lender, may obtain a
judgment conferring on the Security Trustee the right to immediate
possession and requiring the Borrower to execute and deliver such
instruments and documents to the Security Trustee, to the entry of which
judgment the Borrower hereby specifically consents to the fullest extent it
may lawfully do so.
Nothing in the foregoing shall affect the right of the Lender to
receive all amounts owing to the Lender as and when the same may be due.
(b) NOTICE OF SALE. The Security Trustee shall give the Borrower at
least 30 days' prior notice of any public sale or of the date on or after which
any private sale will be held, which notice the Borrower hereby agrees to the
extent permitted by applicable law is reasonable notice. The Lender shall be
entitled to bid for and become the purchaser of any Collateral offered for sale
pursuant to this Section 5.1 and to credit against the purchase price bid at
such sale by the Lender all or any part of the due and unpaid amounts of the
Secured Obligations secured by the Lien of this Security Agreement.
Section 5.2 REMEDIES CUMULATIVE. To the extent permitted by applicable
law, each and every right, power and remedy herein specifically given to the
Security Trustee or otherwise in this Security Agreement shall be cumulative and
shall be in addition to every other right, power and remedy herein specifically
given or now or hereafter existing at law, in equity,
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by statute or by the Operative Agreements, and each and every right, power and
remedy whether specifically herein given or otherwise existing may be exercised
from time to time and as often and in such order as may be deemed expedient by
the Security Trustee, acting at the written direction of the Lender, and the
exercise or the beginning of the exercise of any power or remedy shall not be
construed to be a waiver of the right to exercise at the same time or thereafter
any other right, power or remedy. No delay or omission by the Security Trustee
in the exercise of any right, remedy or power or in the pursuit of any remedy
shall, to the extent permitted by applicable law, impair any such right, power
or remedy or be construed to be a waiver of any default on the part of the
Borrower or to be an acquiescence therein.
Section 5.3 DISCONTINUANCE OF PROCEEDINGS. In case the Security
Trustee shall have instituted any proceeding to enforce any right, power or
remedy under this Security Agreement by foreclosure, entry or otherwise, and
such proceedings shall have been discontinued or abandoned for any reason or
shall have been determined adversely to the Security Trustee, then and in every
such case the Borrower and the Security Trustee shall, subject to any
determination in such proceedings, be restored to their former positions and
rights hereunder with respect to the Collateral, and all rights, remedies and
powers of the Security Trustee shall continue, as if no such proceedings had
been undertaken (but otherwise without prejudice).
SECTION 6. DUTIES OF THE SECURITY TRUSTEE
Section 6.1 NOTICE OF EVENT OF DEFAULT; ACTION UPON EVENT OF DEFAULT.
If any payments of the principal of, and interest on, the Note A due and payable
on any Payment Date, or when otherwise due and payable, shall not have been paid
in full on such Payment Date or such other date, the Security Trustee shall give
telephonic notice within one Business Day (followed by prompt written notice) to
the Borrower and the Lender specifying the amount and nature of such deficiency
in payment; provided that any failure to give such notice shall not relieve the
Borrower of its obligation to make such payment. If the Security Trustee has
knowledge of an Event of Default, the Security Trustee shall promptly give
notice of such Event of Default to the Lender and to the Borrower by telegram,
telecopy, telex, or telephone (to be promptly confirmed in writing). The
Security Trustee shall only take such action, or refrain from taking such
action, with respect to such Event of Default (including with respect to the
exercise of any rights or remedies hereunder), as the Security Trustee shall be
instructed in writing by the Lender. For all purposes of this Security
Agreement, in the absence of actual knowledge, the Security Trustee shall not be
deemed to have knowledge of a Default, an Event of Default, an acceleration of
the Notes or an Event of Loss, Bankruptcy Event or Bankruptcy Default unless
notified in writing by the Borrower or the Lender; and "actual knowledge" (as
used in the foregoing clause) of the Security Trustee shall mean actual
knowledge of an officer in the Corporate Trust Department of the Security
Trustee; provided, however, the Security Trustee shall be deemed to have actual
knowledge of the failure of the Borrower to maintain insurance as required under
Section 3.3(k) if the Security Trustee shall receive written notice thereof from
an insurer or insurance broker.
Section 6.2 ACTION UPON INSTRUCTIONS. Subject to the terms of this
Section 6, upon the written instructions at any time of the Lender, the Security
Trustee shall promptly (i)
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give such notice, direction, consent, waiver or approval, or exercise such
right, remedy or power hereunder in respect of all or any part of the
Collateral, or (ii) take such other action in accordance with the terms hereof
as shall be specified in such instruction. The Security Trustee will execute
such continuation statements with respect to financing statements relating to
the security interest created hereunder in the Collateral as may be specified
from time to time in written instructions of the Lender, which instructions
shall be accompanied by the form of continuation statement to be executed by the
Security Trustee, such continuation statement to be filed by the Borrower. The
Security Trustee shall not be liable to the Borrower with respect to any action
taken or omitted to be taken by it in accordance with the requests or
instructions of the Lender, which requests or instructions are in accordance
with the terms hereof, except for any actions or omissions constituting the
gross negligence or willful misconduct of the Security Trustee.
Section 6.3 INDEMNIFICATION. The Security Trustee shall not be
required to take any action or refrain from taking any action under Section 6.1
(other than the first two sentences thereof), Section 6.2 or Section 5 or to
take any action or refrain from taking any action at the direction or
instructions of the Lender under any other Section hereof or under any other
Operative Agreement unless it shall have received indemnification against any
risks or costs incurred in connection therewith in form and substance reasonably
satisfactory to it, including, without limitation, adequate advances against
costs which may be incurred by it in connection therewith. The Security Trustee
shall not be required to take any action under Section 6.1 (other than the first
two sentences thereof), Section 6.2 or Section 5, nor shall any other provision
of this Security Agreement or any other Operative Agreement be deemed to impose
a duty on the Security Trustee to take any action, if the Security Trustee shall
have been advised in writing by outside counsel that such action is contrary to
the terms hereof or is otherwise contrary to law or would involve the Security
Trustee in personal liability against which the indemnification provided by this
Section would not be satisfactory.
Section 6.4 NO DUTIES EXCEPT AS SPECIFIED IN SECURITY AGREEMENT OR
INSTRUCTIONS. The Security Trustee shall not have any duty or obligation to
manage, control, lease, use, sell, operate, store, dispose of or otherwise deal
with the Aircraft or any other part of the Collateral, or to otherwise take or
refrain from taking any action under, or in connection with, this Security
Agreement, except as expressly provided by the terms of this Security Agreement
or as expressly provided in written instructions received pursuant to the terms
of Section 6.1 or 6.2; and no implied duties or obligations shall be read into
this Security Agreement against the Security Trustee.
Section 6.5 NO ACTION EXCEPT UNDER SECURITY AGREEMENT OR INSTRUCTIONS.
The Security Trustee agrees that it will not manage, control, use, sell, lease,
operate, store, dispose of or otherwise deal with the Aircraft or other property
constituting part of the Collateral except in accordance with the powers granted
to, or the authority conferred upon, the Security Trustee pursuant to this
Security Agreement and in accordance with the express terms hereof.
Section 6.6 REPORTS, NOTICES, ETC. The Security Trustee will furnish
to the Lender, promptly upon receipt thereof, duplicates or copies of all
reports, opinions, notices, requests, demands, certificates, financial
statements and other instruments furnished to the Security Trustee, to the
extent that the same shall not have been otherwise furnished to the
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Lender pursuant to this Security Agreement or any other Operative Agreement or
to the extent the Security Trustee does not reasonably believe that the same
shall have been furnished by the Borrower directly to the Lender; PROVIDED, the
failure of the Security Trustee to furnish the Lender with such duplicates or
copies shall not impair or affect the validity of any such report, opinion,
notice, request, demand, certificate, financial statement or other instrument.
The Security Trustee's sole responsibility with respect to such reports,
opinions, notices, requests, demands, certificates, financial statements and
other instruments shall be to furnish them to the Lender to the extent provided
in this Section.
Section 6.7 REMOVAL OF CERTAIN LIENS. The Security Trustee will not
directly or indirectly cause, incur, assume or suffer to exist any Security
Trustee Liens on any part of the Collateral, and it agrees that it will, at its
own cost and expense, promptly take such action as may be necessary to discharge
and satisfy any such Security Trustee Lien and it shall indemnify, protect,
defend and hold harmless the Borrower against any claims in any way resulting
from or arising out of a breach by it of its obligations under this Section 6.7;
provided that such indemnity, to the extent that it relates to Security Trustee
Liens referred to in clause (ii) of the definition thereof contained in Annex A
hereto, shall only relate to those Security Trustee Liens as shall have arisen
as a result of the gross negligence or willful misconduct of the Security
Trustee.
Section 6.8 NO CHARGES. The Security Trustee agrees that it will not
impose any lifting charge, cable charge, remittance charge or any other charge
or fee on any transfer by the Borrower of funds to, through or by the Security
Trustee pursuant to any Operative Agreement, except as may be otherwise agreed
in writing by the Borrower.
SECTION 7. THE SECURITY TRUSTEE
Section 7.1 ACCEPTANCE OF TRUSTS AND DUTIES. The Security Trustee
accepts the trusts and duties hereby created and applicable to it and agrees to
perform such duties but only upon the terms of this Security Agreement and
agrees to receive and disburse all moneys received by it as Security Trustee
constituting part of the Collateral in accordance with the terms hereof. The
Security Trustee shall have no liability hereunder or under any other Operative
Agreement, except (a) for its own willful misconduct or gross negligence (or
ordinary negligence in the receipt or disbursement of money) or breach of any of
its representations or warranties made herein or in any other Operative
Agreement to which it is a party, or (b) as otherwise expressly provided in this
Security Agreement or the other Operative Agreements.
Section 7.2 ABSENCE OF DUTIES. Except in accordance with written
instructions, requests or consents furnished pursuant to Sections 6.1, 6.2 or
9.1 and except as provided in, and without limiting the generality of,
Section 6.4, the Security Trustee shall have no duty (a) to see to any
registration of the Aircraft or any recording or filing of this Security
Agreement or any other document, or to see to the maintenance of any such
registration, recording or filing, (b) to see to any insurance on the Aircraft
or to effect or maintain any such insurance, whether or not the Borrower shall
be in default with respect thereto, (c) to confirm, verify or inquire into the
failure to receive any financial statements of the Borrower, (d) to inspect the
Aircraft at any time or ascertain or inquire as to the performance or observance
of any of the Borrower's covenants
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under this Security Agreement with respect to the Aircraft or (e) to give any
consent, make any election or determination or exercise any discretion, it being
understood that, except as otherwise expressly provided herein, the duties of
the Security Trustee hereunder and under any other Operative Agreement shall be
wholly ministerial in nature.
Section 7.3 NO REPRESENTATIONS OR WARRANTIES AS TO THE AIRCRAFT OR
DOCUMENTS. The Security Trustee shall not be deemed to have made any
representation or warranty as to the validity, legality or enforceability of
this Security Agreement, the Notes, any Security Agreement Supplement, any other
Operative Agreement or any other document or instrument, or as to the
correctness of any statement (other than a statement by the Security Trustee)
contained herein or therein, except that the Security Trustee hereby represents
and warrants that:
(a) it is a banking corporation duly organized and validly existing
and in good standing under the laws of the State of New York, is a "citizen of
the United States" within the meaning of the Federal Aviation Code and the rules
and regulations of the FAA promulgated thereunder (without the use of a voting
trust agreement), and has the full corporate power and authority and the legal
right under the laws of the State of New York and the laws of the United States
in each case governing its banking, trust and fiduciary powers to execute,
deliver and carry out the terms of this Security Agreement and the other
Operative Agreements to which it is a party;
(b) this Security Agreement and the other Operative Agreements to
which it is a party have been duly authorized by all necessary corporate action
on its part, and neither the execution and delivery hereof or thereof nor its
performance of any of the terms and provisions hereof or thereof will violate
any law or regulation of the State of New York or any federal law or regulation
of the United States in each case governing its banking or trust powers, any
order or judgment applicable to it or contravene or result in a breach of, or
constitute any default under, its corporate charter or by-laws; and
(c) each of this Security Agreement and the other Operative Agreements
to which it is a party has been or will be duly executed and delivered by one of
its officers who is and will be duly authorized to execute and deliver such
document on its behalf and that each such document is its valid and binding
obligation, enforceable against the Security Trustee in accordance with its
terms, subject to the effects of bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding at
law or in equity) and an implied covenant of good faith and fair dealing.
Section 7.4 NO SEGREGATION OF MONEYS; NO INTEREST. No moneys received
by the Security Trustee hereunder need be segregated in any manner except to the
extent required by law, and any such moneys may be deposited under such general
conditions for the holding of trust funds as may be prescribed by law applicable
to the Security Trustee, and, except as otherwise provided herein or as agreed
in writing by the Security Trustee, the Security Trustee shall not be liable for
any interest thereon; provided that any payments received or applied hereunder
by the Security Trustee shall be accounted for by the Security Trustee so that
any portion thereof paid or applied pursuant hereto shall be identifiable as to
the source thereof.
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Section 7.5 RELIANCE; SECURITY TRUSTEES; ADVICE OF COUNSEL. The
Security Trustee shall incur no liability to anyone in acting upon any
signature, instrument, notice, resolution, request, consent, order, certificate,
report, opinion, bond or other document or paper reasonably believed by the
Security Trustee to be genuine and reasonably believed by it to be signed by the
proper party or parties. The Security Trustee may accept a copy of a resolution
of the Board of Directors of the Borrower or the Lender certified by the
Secretary or an Assistant Secretary of such party or in the case of the Lender,
by any officer as duly adopted and in full force and effect, as conclusive
evidence that such resolution has been duly adopted and that the same is in full
force and effect. As to any fact or matter the manner of ascertainment of which
is not specifically described herein, the Security Trustee may for all purposes
hereof rely on an Officer's Certificate of the Borrower, as to such fact or
matter, and such certificate shall constitute full protection to the Security
Trustee for any action taken or omitted to be taken by it in good faith in
reliance thereon. The Security Trustee shall furnish to the Borrower upon
request such information and copies of such documents as the Security Trustee
may have and as are necessary for the Borrower to perform its duties under this
Agreement; PROVIDED that the failure of the Security Trustee to furnish such
information or documents shall not affect the Borrower's obligations hereunder
or under the Notes. The Security Trustee shall assume, and shall be fully
protected in assuming, that the Borrower is authorized to enter into this
Security Agreement and to take all actions permitted to be taken by it pursuant
to the provisions hereof, and shall not inquire into the authorization of the
Borrower with respect thereto. In the administration of the trusts hereunder,
the Security Trustee may execute any trust or power hereof and perform its
powers and duties hereunder directly or through agents or attorneys and the
Security Trustee shall not be responsible for any misconduct or negligence on
the part of any agent or attorney appointed with due care by it hereunder and
may consult with independent counsel, accountants and other skilled persons to
be selected and employed by it, and the Security Trustee shall not be liable for
anything done, suffered, or omitted in good faith by it in accordance with the
written advice or opinion of any such independent counsel, accountants or other
skilled persons acting within such persons' area of competence (so long as the
Security Trustee shall have exercised reasonable care in selecting such
persons).
Section 7.6 CAPACITY IN WHICH ACTING. The Security Trustee has entered
into this Security Agreement in its individual capacity.
Section 7.7 COMPENSATION AND REIMBURSEMENT. The Borrower agrees:
(a) to pay to the Security Trustee from time to time reasonable
compensation for all services rendered by it hereunder or under any Operative
Agreement (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust); and
(b) except as otherwise expressly provided herein, to reimburse the
Security Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Security Trustee in accordance with any
provision of this Security Agreement or any Operative Agreement (including the
reasonable compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its gross negligence or bad faith.
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The obligations of the Borrower under this Section 7.7 shall survive
the resignation or removal of the Security Trustee and the termination of this
Security Agreement and are in addition to any provision in any other Operative
Agreement relating to the subject matter thereof, which provision shall not be
deemed to limit the obligations of the Borrower contained in this Section.
SECTION 8. SUCCESSOR TRUSTEE
Section 8.1 RESIGNATION OF SECURITY TRUSTEE; APPOINTMENT OF SUCCESSOR.
(a) The resignation or removal of the Security Trustee and the appointment of a
successor Security Trustee shall become effective only upon the successor
Security Trustee's acceptance of appointment as provided in this Section 8.1.
The Security Trustee or any successor thereto may resign at any time without
cause by giving at least 60 days' prior written notice to the Borrower and the
Lender. In addition, either the Borrower (so long as no Event of Default shall
have occurred and be continuing) or the Lender may at any time remove the
Security Trustee without cause by an instrument in writing delivered to the
Security Trustee, the Lender and (in the case of a removal by the Lender) the
Borrower.
In the case of the resignation or removal of the Security Trustee, the
Borrower (unless an Event of Default shall have occurred and be continuing, in
which case the Lender) shall promptly appoint a successor Security Trustee
reasonably acceptable to the Lender; PROVIDED that the Lender may appoint,
within one year after such resignation or removal, a successor Security Trustee
which may be other than any successor Security Trustee appointed by the Borrower
as provided above, so long as such other successor is (so long as no Event of
Default shall have occurred and be continuing) satisfactory to the Borrower, and
such successor Security Trustee appointed as provided above shall be superseded
by the successor Security Trustee so appointed by the Lender. If a successor
Security Trustee shall not have been appointed and accepted its appointment
hereunder within 60 days after the Security Trustee gives notice of resignation
as provided above, the retiring Security Trustee, the Borrower or the Lender may
petition any court of competent jurisdiction for the appointment of a successor
Security Trustee. Any successor Security Trustee so appointed by such court
shall immediately and without further act be superseded by any successor
Security Trustee appointed as provided in the PROVISO to the second preceding
sentence within one year from the date of the appointment by such court.
(b) Any successor Security Trustee, however appointed, shall execute
and deliver to the Borrower, the Lender and the predecessor Security Trustee an
instrument accepting such appointment, and thereupon such successor Security
Trustee, without further act, shall become vested with all the estates,
properties, rights, powers, duties and trusts of the predecessor Security
Trustee hereunder in the trusts hereunder applicable to it with like effect as
if originally named the Security Trustee herein; but nevertheless, upon the
written request of such successor Security Trustee, such predecessor Security
Trustee shall execute and deliver an instrument transferring to such successor
Security Trustee, upon the trusts herein expressed applicable to it, all the
estates, properties, rights, powers and trusts of such predecessor Security
Trustee, and, upon payment of its charges, such predecessor Security Trustee
shall duly assign, transfer,
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deliver and pay over to such successor Security Trustee all moneys or other
property then held by such predecessor Security Trustee hereunder.
(c) Any successor Security Trustee, however appointed, shall be a
"citizen of the United States" within the meaning of the Federal Aviation Code
(49 U.S.C. Section 40102(a)(15)) and shall also be a bank or trust company
having a combined capital and surplus of at least $100,000,000 or a bank or
trust company whose obligations are guaranteed by a bank or trust company having
a combined capital and surplus of at least $100,000,000 or a corporation with a
net worth of at least $100,000,000.
(d) Any corporation into which the Security Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Security Trustee shall
be a party, or any corporation to which all or substantially all of the
corporate trust business of the Security Trustee may be transferred, shall,
subject to the terms of paragraph (c) of this Section, be the Security Trustee
under this Security Agreement without further act.
SECTION 9. SUPPLEMENTS AND AMENDMENTS TO THIS SECURITY AGREEMENT AND OTHER
DOCUMENTS
Section 9.1 SUPPLEMENTAL SECURITY AGREEMENTS. With the written consent
of the Lender, the Borrower may, and the Security Trustee, subject to
Section 9.2, shall, at any time and from time to time, enter into an amendment
or amendments hereto or to any of the other Operative Agreements for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Security Agreement or of modifying in any manner the rights
and obligations of the Lender and of the Borrower hereunder or thereunder.
Section 9.2 SECURITY TRUSTEE PROTECTED. If in the opinion of the
Security Trustee any document required to be executed pursuant to the terms of
Section 9.1 adversely affects any right, duty, immunity or indemnity in favor of
the Security Trustee under this Security Agreement or the other Operative
Agreements, the Security Trustee may in its discretion decline to execute such
document.
Section 9.3 DOCUMENTS MAILED TO LENDER. Promptly after the execution
by the Security Trustee of any document entered into pursuant to this Section 9,
the Security Trustee shall mail, by first-class mail (air mail in the case of
international), postage prepaid, a conformed copy thereof to the Lender at the
address provided for the Lender in Section 9.2 of the Loan Agreement or at such
other address as may be specified by the Lender pursuant to Section 9.2 of the
Loan Agreement, but the failure of the Security Trustee to mail such conformed
copies shall not impair or affect the validity of such document.
SECTION 10. INVESTMENT OF SECURITY FUNDS
Section 10.1 INVESTMENT OF SECURITY FUNDS. Any monies paid to or
retained by the Security Trustee that are required to be paid to the Borrower or
applied for the benefit or at the direction of the Borrower, but which the
Security Trustee is entitled to hold under the terms
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hereof pending the occurrence of some event or the performance of some act
(including, without limitation, the remedying of a Default or Event of Default),
shall, until paid to the Borrower or applied as provided herein, be invested by
the Security Trustee at the written authorization and direction of the Borrower
from time to time at the sole expense and risk of the Borrower in Permitted
Investments. Such authorization and direction of the Borrower shall specify the
particular investment to be made and shall certify that such investment
constitutes a Permitted Investment. All Permitted Investments held by the
Security Trustee pursuant to this Section 10.1 shall either be (a) registered in
the name of, payable to the order of, or specially endorsed to, the Security
Trustee, or (b) held in an Eligible Account. There shall be promptly remitted to
the Borrower any income or gain (including interest received) realized as the
result of any such investment (net of any fees, commissions and other expenses,
if any, incurred in connection with such investment) unless a Default or Event
of Default shall have occurred and be continuing. If a Default or Event of
Default shall have occurred and be continuing, the Security Trustee shall hold
any such income or gain as security for the obligations of the Borrower
hereunder and apply it against such obligations as and when due, and at such
time as there shall not be continuing any such Default or Event of Default, such
amount, to the extent not previously so applied against the Borrower's
obligations, shall be paid to the Borrower; provided that if any such amount has
been so held as security for more than 90 days, during which period (i) the
Security Trustee shall not have been limited by operation of law or otherwise
from exercising remedies and (ii) the Security Trustee shall not have exercised
any remedy available to it under Section 5.1, then such amount, to the extent
not previously so applied against such obligations of the Borrower, shall be
paid to the Borrower.
Section 10.2 LIABILITY FOR LOSSES. Except to the extent provided in
Section 7.1, the Security Trustee in its individual capacity shall not be liable
for any loss relating to an investment made in accordance with instructions
received by it pursuant to this Section 10. The Borrower will promptly pay to
the Security Trustee, on demand, the amount of any loss for which the Security
Trustee is not liable realized as the result of any such investment (together
with any fees, commissions and other expenses, if any, incurred in connection
with such investment).
SECTION 11. MISCELLANEOUS
Section 11.1 TERMINATION OF SECURITY AGREEMENT. Upon payment in full
of the principal of, and interest on, the Note A and all other amounts then due
and owing under any Operative Agreement (other than amounts arising from or
relating to Loan B), the Security Trustee shall, upon the written request of the
Borrower and at the written direction of the Lender, execute and deliver to, or
as directed in writing by, and at the expense of, the Borrower an appropriate
instrument or instruments (in due form for recording and in the form provided by
the Borrower and approved by the Lender) releasing, without recourse,
representation or warranty, the Aircraft and the balance of the Collateral from
the Lien of this Security Agreement and, in such event, this Security Agreement
and the trusts created hereby shall terminate and this Security Agreement shall
be of no further force or effect except as provided in Section 7.7. Except as
otherwise provided above, this Security Agreement and the trusts created hereby
shall continue in full force and effect in accordance with the terms hereof.
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Section 11.2 NO LEGAL TITLE TO COLLATERAL IN LENDER. The Lender shall
have no legal title to any part of the Collateral. No transfer, by operation of
law or otherwise, of any right, title and interest of the Lender in and to the
Collateral or this Security Agreement shall operate to terminate this Security
Agreement or the trusts hereunder or entitle any successor or transferee of the
Lender to an accounting or to the transfer to it of legal title to any part of
the Collateral.
Section 11.3 SALE OF THE AIRCRAFT BY SECURITY TRUSTEE IS BINDING. Any
sale or other conveyance of the Aircraft, the Airframe, any Engine or any
interest therein by the Security Trustee made pursuant to the terms of this
Security Agreement shall bind the Lender and the Borrower, and shall be
effective to transfer or convey all right, title and interest of the Security
Trustee, the Borrower and the Lender in and to such Aircraft, Airframe, Engine
or interest therein. No purchaser or other grantee shall be required to inquire
as to the authorization, necessity, expediency or regularity of such sale or
conveyance or as to the application of any sale or other proceeds with respect
thereto by the Lender.
Section 11.4 BENEFIT OF SECURITY AGREEMENT. Nothing in this Security
Agreement, whether express or implied, shall be construed to give to any Person
other than the Borrower, the Security Trustee and the Lender any legal or
equitable right, remedy or claim under or in respect of this Security Agreement.
Section 11.5 SECTION 1110. It is the intention of the parties hereto
that the security interest created hereby, to the fullest extent available under
applicable law, entitles the Security Trustee, on behalf of the Lender, to all
of the benefits of Section 1110 with respect to the Aircraft including the right
to take possession of the Airframe and Engines in compliance with this Agreement
in the event of a case under Chapter 11 of the Bankruptcy Code in which the
Borrower is a debtor.
Section 11.6 THE BORROWER'S PERFORMANCE AND RIGHTS. Any obligation
imposed on the Borrower herein shall require only that the Borrower perform or
cause to be performed such obligation, even if stated as a direct obligation,
and the performance of any such obligation by any permitted assignee, lessee or
transferee under an assignment, lease or transfer agreement then in effect and
in accordance with the provisions of the Operative Agreements shall constitute
performance by the Borrower and to the extent of such performance, discharge
such obligation by the Borrower. Except as otherwise expressly provided herein,
any right granted to the Borrower in this Agreement shall grant the Borrower the
right to permit such right to be exercised by any such assignee, lessee or
transferee. The inclusion of specific references to obligations or rights of any
such assignee, lessee or transferee in certain provisions of this Agreement
shall not in any way prevent or diminish the application of the provisions of
the two sentences immediately preceding with respect to obligations or rights in
respect of which specific reference to any such assignee, lessee or transferee
has not been made in this Agreement.
Section 11.7 NOTICES. Unless otherwise expressly specified or
permitted by the terms hereof, all notices required or permitted under the terms
and provisions hereof shall be in English and in writing, and any such notice
may be given by U.S. mail, courier service or facsimile (confirmed by telephone
or in writing in the case of notice by facsimile) or any other customary means
of communication, and any such notice shall be effective when delivered if to
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the Borrower or the Security Trustee, to its address or number set forth below
its signature at the foot of this Agreement, and, if to the Lender, to its
address or number set forth in Section 9.2 of the Loan Agreement (which shall be
deemed, unless otherwise indicated, to be the address of the Corporate Trust
Department).
Section 11.8 SEVERABILITY. Should any one or more provisions of this
Security Agreement be determined to be illegal or unenforceable by a court of
any jurisdiction, such provision shall be ineffective to the extent of such
illegality or unenforceability without invalidating the remaining provisions
hereof or affecting the validity or enforceability of such provision in any
other jurisdiction.
Section 11.9 SEPARATE COUNTERPARTS. This Security Agreement may be
executed in any number of counterparts (and each of the parties hereto shall not
be required to execute the same counterpart). Each counterpart of this Security
Agreement including a signature page executed by each of the parties hereto
shall be an original counterpart of this Security Agreement, but all of such
counterparts together shall constitute one instrument.
Section 11.10 SUCCESSORS AND ASSIGNS. All covenants and agreements
contained herein and in the other Operative Agreements shall be binding upon,
and inure to the benefit of, the Borrower and its successors and permitted
assigns, and the Security Trustee and its successors and permitted assigns, and
the Lender and its successors and permitted assigns, all as provided herein or
in the other Operative Agreements. Any request, notice, direction, consent,
waiver or other instrument or action by the Lender (unless withdrawn by the
Lender or its successor prior to it being acted upon by the Security Trustee)
shall bind the successors of the Lender.
Section 11.11 HEADINGS. The headings of the various Sections herein
and in the table of contents hereto are for convenience of reference only and
shall not define or limit any of the terms or provisions hereof.
Section 11.12 GOVERNING LAW; JURISDICTION. THIS SECURITY AGREEMENT IS
BEING DELIVERED IN THE STATE OF NEW YORK AND THIS SECURITY AGREEMENT AND ANY
SECURITY AGREEMENT SUPPLEMENT SHALL IN ALL RESPECTS, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. Each of the parties
irrevocably submits to the jurisdiction of the United States District Court for
the Southern District of New York and of any New York State Court sitting in the
City of New York for any legal proceeding arising out of or relating to this
Security Agreement or any transactions contemplated hereby. Any suit, action or
proceeding with respect to this Security Agreement or any Security Agreement
Supplement or the transactions contemplated thereby may be brought only in such
courts. Each party, to the fullest extent it may do so under applicable law,
irrevocably waives and agrees not to assert by way of motion, as a defense or
otherwise, any claim that it is not subject to the jurisdiction of any such
court, any objection that it may now or hereafter have to the laying of the
venue of any such suit, action or proceeding brought in any such court and any
claim that such suit, action or proceeding has been brought in an inconvenient
forum.
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Section 11.13 NORMAL COMMERCIAL RELATIONS. Anything contained in this
Security Agreement to the contrary notwithstanding, the Borrower, the Lender or
the Security Trustee or any Affiliate of the Borrower, the Lender or the
Security Trustee may enter into commercial banking or other financial
transactions with each other, and conduct banking or other commercial
relationships with each other, fully to the same extent as if this Security
Agreement were not in effect, including, without limitation, the making of loans
or other extensions of credit for any purpose whatsoever.
Section 11.14 CONFIDENTIAL INFORMATION. Each of the Borrower and the
Security Trustee agrees to keep confidential all non-public information provided
to it pursuant to or in connection with this Agreement, the other Operative
Agreements and the transactions contemplated hereby or thereby; PROVIDED that
nothing herein shall prevent any party hereto from disclosing any such
information (i) to its employees, directors, agents, attorneys, accountants and
other professional advisors, (ii) to the Lender or BNDES, (iii) upon the demand
of any Government Entity having jurisdiction over such party, or in response to
any order of any court or other Government Entity or as may otherwise be
required pursuant to any Requirement of Law, after providing the other party
with prompt notice of such request, demand, order or other requirement so that
such party may seek an appropriate protective order and after making reasonable
efforts to resist disclosure, (iv) in connection with the exercise of any remedy
hereunder or under the other Operative Agreements or (v) as permitted in the
Loan Agreement or the Funding Agreement.
Section 11.15 NOTICES, INSTRUCTIONS, CONSENTS, EXECUTION AND WAIVER.
Whenever the provisions of this Security Agreement require or permit notice from
or to, instructions from, consent of, execution of any amendment, supplement,
instrument, certificate or other document by, or a waiver by, the Lender, the
notice from or to, instruction from, consent of, execution by or waiver by, the
holders on the date of such notice, instruction, consent, execution or waiver of
more than 50% in interest of the principal amount of the Note A then outstanding
shall be considered notice from or to, instruction from, consent of, execution
by or waiver by, the Lender and shall be binding upon any present or subsequent
Lender; provided, however, that without the consent of each holder at the time
thereof affected thereby, no amendment, supplement, consent or waiver shall:
(a) change the final maturity of any Note, or change the dates or
amounts of payment of any installment of the principal of or interest on any
Note, or reduce the principal of or interest on any Note, or change to a
location outside the United States of America the place of payment where, or the
coin or currency in which, the principal amount of any Note is payable; or
(b) create any Lien with respect to the Collateral except such as are
permitted by this Security Agreement, or deprive any such holder of the benefit
of the Lien on the Collateral created by the Security Agreement; or
(c) modify the provisions of this Section 11.15; or
(d) adversely affect any indemnities in favor of such holder.
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Section 11.16 REGISTER. The Security Trustee hereby agrees to maintain
the Register pursuant to Section 9.5(d)(v) of the Loan Agreement as agent for
and on behalf of the Borrower.
Section 11.17 SECURITY DEPOSIT AGREEMENT. Concurrently with the
execution and delivery of this Agreement, the Security Trustee shall execute and
deliver the Security Deposit Agreement (CH-282SK) dated as of December 27, 2001
among Borrower, Lender, and JPMorgan Chase Bank, as Security Deposit Trustee.
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IN WITNESS WHEREOF, the parties hereto have caused this Security
Agreement to be duly executed by their respective officers, as the case may be,
thereunto duly authorized, as of the day and year first above written.
CHAUTAUQUA AIRLINES, INC.
By:
--------------------------
Name:
Title:
Address:
Attn:
JPMORGAN CHASE BANK,
as Security Trustee
By:
--------------------------
Name:
Title:
Address: 450 West 33rd Street
New York, New York 10001
Attn: Institutional Trust Services
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ANNEX B TO
SECURITY AGREEMENT
FOREIGN REGISTRATION
Subject to the provisions of Section 3.3(b) of this Security Agreement and
Section 9.4 of the Funding Agreement:
(a) Borrower shall be entitled to register the Aircraft or cause the
Aircraft to be registered in a country other than the United States subject to
compliance with the following:
(i) each of the following requirements is satisfied:
(A) no Event of Default or Bankruptcy Default shall have occurred
and be continuing at the time of such registration;
(B) such proposed change of registration is made in connection
with a Permitted Lease to a Permitted Air Carrier; and
(C) such country is a Permitted Country with which the United
States then maintains normal diplomatic relations.
(ii) Lender and Security Trustee shall have received an opinion
(subject to customary exceptions), in form and substance reasonably
satisfactory to each of them, of counsel (reasonably satisfactory to each
of them) addressed to each such party to the effect that:
(A) such country would recognize the Borrower's ownership
interest in and right to possession of, the Aircraft;
(B) after giving effect to such change in registration, the Lien
of the Security Agreement on the Borrower's right, title and interest
in and to the Aircraft shall continue as a valid and duly perfected
first priority security interest and all filing, recording or other
action necessary to protect the same shall have been accomplished (or,
if such opinion cannot be given at the time of such proposed change in
registration because such change in registration is not yet effective,
(1) the opinion shall detail what filing, recording or other action is
necessary and (2) the Security Trustee shall have received a
certificate from Borrower that all possible preparations to accomplish
such filing, recording and other action shall have been done, and such
filing, recording and other action shall be accomplished and a
supplemental opinion to that effect shall be delivered to the Security
Trustee on or prior to the effective date of such change in
registration);
(C) it is not necessary, solely as a consequence of such change
in registration and without giving effect to any other activity of the
Security Trustee
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(or any Affiliate thereof), for the Security Trustee to qualify to do
business in such country as a result of such reregistration;
(D) unless Borrower or the Permitted Air Carrier shall have
agreed to provide insurance reasonably satisfactory to Lender and
Security Trustee covering the risk of requisition of use of the
Aircraft by the government of such country (so long as the Aircraft is
registered under the laws of such country), the laws of such country
require fair compensation by the government of such country payable in
currency freely convertible into Dollars and freely removable from
such country (without license or permit, unless Borrower prior to such
proposed reregistration has obtained such license or permit) for the
taking or requisition by such government of such use.
(b) In addition, as a condition precedent to any change in
registration Borrower shall have given to Lender and Security Trustee assurances
reasonably satisfactory to each of them:
(i) to the effect that the provisions of Section 3.3(k) of the
Security Agreement have been complied with after giving effect to such
change of registration;
(ii) the country of such re-registration imposes aircraft
maintenance standards approved by, or at least as stringent as those
approved by, the FAA or the central civil aviation authority of the United
Kingdom, France, Germany, Japan, the Netherlands or Canada;
(iii) no Liens (except Permitted Liens) shall arise by reason of
such re-registration;
(iv) any export licenses and certificate of deregistration
required in connection with any repossession or return of the Aircraft will
be readily obtainable in the normal course without material delay or
material burden on Security Trustee, it being agreed that Borrower shall be
responsible for the cost thereof;
(v) the courts of such proposed country of registry will give
effect to the choice of New York law to govern the Operative Agreements;
and
(vi) of the payment by Borrower of all reasonable out-of-pocket
expenses at no after-tax cost to Lender or Security Trustee in connection
with such change of registry, including, without limitation (1) the
reasonable fees and disbursements of counsel to Lender and Security
Trustee, (2) any filing or recording fees, Taxes or similar payments
incurred in connection with the change of registration of the Aircraft and
the creation and perfection of the security interest therein in favor of
Security Trustee for the benefit of Lender, and (3) all costs and expenses
incurred in connection with any filings necessary to continue in the United
States the perfection of the security interest in the Aircraft in favor of
Security Trustee for the benefit of Lender.
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ANNEX C TO
SECURITY AGREEMENT
INSURANCE
A. LIABILITY INSURANCE
1. Subject to the rights of the Borrower under Section G and except as
provided in Section A.2 below, the Borrower shall, without expense to Lender and
Security Trustee maintain or cause to be maintained in effect at all times with
insurers of nationally or internationally recognized responsibility public
liability insurance (including, without limitation, aircraft third party,
passenger legal liability, property damage, general third party legal liability
and product liability coverage but excluding manufacturer's product liability
coverage) with respect to the Aircraft in an amount not less than the greater of
(i) the amount which the Borrower may carry from time to time on other similar
aircraft in its fleet (whether owned or leased) and (ii) $200,000,000 per
occurrence. Such insurance shall be of the type usually carried by the Borrower
with respect to similar aircraft and engines, and covering risks of the kind
customarily insured against by the Borrower.
2. During any period that the Aircraft is grounded and not in
operation, the Borrower may modify the insurance required by Section A.1 above,
to modify the amounts of public liability and property damage insurance, the
scope of the risks covered and the type of insurance, in all circumstances to
conform to such insurance customary in the United States airlines industry for
regional air carriers similarly situated with the Borrower in respect of similar
aircraft which are grounded, not in operation, and stored or hangared, except
that in all instances, the amounts of coverage and scope of risk covered and the
type of insurance shall be at a minimum no less favorable than the insurance as
from time to time applicable to aircraft owned or leased by the Borrower on the
ground, not in operation, and stored or hangared.
B. HULL INSURANCE
Subject to the rights of the Borrower under Section G, the Borrower
shall, without expense to Lender or Security Trustee, maintain or cause to be
maintained in effect at all times with insurers of nationally or internationally
recognized responsibility (i) all risk, ground and flight hull insurance, which
may, except as provided below, exclude war risks and allied perils, covering the
Aircraft for an amount at all times (even when the Aircraft is grounded or in
storage) not less than 110% of the outstanding principal amount of Note A (the
"DEBT BALANCE"); PROVIDED THAT, neither the Borrower nor any Permitted Lessee
shall be required to maintain all-risk flight aircraft hull insurance with
respect to any period in which the Aircraft is grounded and properly stored or
hangared. Such insurance shall not provide insurers with a right to replace the
Airframe or any Engine with another airframe or engine. Such hull insurance or
other insurance of the Borrower (or a Permitted Lessee) shall cover Engines and
Parts temporarily removed from the Airframe, pending replacement by installation
of the same or similar Engines or Parts on the Airframe. Such insurance shall be
of the type usually carried by the Borrower with respect to similar aircraft and
engines, and covering risks of the kind customarily insured against by the
Borrower.
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Any policies of insurance carried in accordance with this Section B
covering the Aircraft and any policies taken out in substitution or replacement
for any such policies (i) shall name Security Trustee as exclusive loss payee
for any proceeds to be paid under such policies up to an amount equal to the
Debt Balance and (ii) shall provide that (A) in the event of a loss involving
proceeds in excess of the Threshold Amount, the proceeds in respect of such loss
shall be payable to Security Trustee (so long as the Lien of this Agreement
shall not have been discharged), except in the case of a loss with respect to an
Engine installed on an airframe other than the Airframe, in which case the
Borrower (or any Permitted Lessee) shall endeavor to arrange for any payment of
insurance proceeds in respect of such loss to be held for the account of
Security Trustee (so long as the Lien of this Agreement shall not have been
discharged) whether such payment is made to the Borrower (or any Permitted
Lessee) or any third party, it being understood and agreed that in the case of
any payment to the Security Trustee otherwise than in respect of an Event of
Loss, Security Trustee shall, upon receipt of a certificate of a qualified
engineer (who may be an employee of the Borrower) certifying that the damage
giving rise to such payment shall have been repaired or that such payment shall
then be required to pay for repairs then being made, pay the amount of such
payment to the Borrower or its order, and (B) the entire amount of any loss
involving proceeds of the Threshold Amount or less or the amount of any proceeds
of any loss in excess of the Debt Balance shall be paid to the Borrower or its
designee, PROVIDED that if a Payment Default, Bankruptcy Default or any Event of
Default shall have occurred and be continuing and the insurers have been
notified thereof by Lender or the Security Trustee, such payment referred to in
clause (B) shall be made as provided in clause (i) above. In the case of a loss
with respect to an engine (other than an Engine) installed on the Airframe,
Security Trustee shall hold any payment to it of any insurance proceeds in
respect of such loss for the account of the Borrower or any other third party
that is entitled to receive such proceeds.
C. WAR-RISK, HIJACKING AND ALLIED PERILS INSURANCE
If and to the extent that the Borrower or a Permitted Lessee operates
the Aircraft (A) on routes where it maintains war risk, hijacking or allied
perils insurance in effect with respect to other similar owned or leased
aircraft in its fleet, (B) on routes (other than routes within the United
States, Canada, Mexico, Bermuda and islands other than Cuba in the Caribbean
Basin) where the custom in the industry is to carry war risk insurance or (C) in
any area of recognized hostilities, the Borrower or such Permitted Lessee shall
maintain or cause to be maintained such insurance in effect with respect to the
Aircraft in an amount not less than the Debt Balance.
D. GENERAL PROVISIONS
The Borrower shall cause all policies of insurance carried in
accordance with Section A, B, and C, to name the Security Trustee and Lender as
additional insureds (collectively, the "ADDITIONAL INSUREDS"), as their
respective interests may appear. Such polices shall provide with respect to such
Additional Insureds that (i) none of their respective interest in such policies
shall be invalidated by any act or omission or breach of warranty or condition
contained in such policies by the Borrower or, in the case of any particular
Additional Insured, any other Additional Insured; (ii) no cancellation or lapse
of coverage for nonpayment of premium or otherwise, and no substantial change of
coverage which adversely affects the
2
<Page>
interests of any such Additional Insured, shall be effective as to such
Additional Insured until 30 days (or such lesser period as may be applicable in
the case of any war risk, hijacking and allied perils insurance coverage) after
receipt by such Additional Insured of written notice from the insurers of such
cancellation, lapse or change; (iii) they shall have no liability for premiums,
commissions, calls, assessments or advances with respect to such policies; (iv)
such policies will be primary without any right of contribution from any other
insurance carried by such Additional Insureds; (v) the insurers waive any rights
of set-off, counterclaim, deduction or subrogation against such Additional
Insureds; (vi) shall apply worldwide and have no territorial restrictions or
limitations (except in the case of war risk, hijacking or related perils
insurance, which shall apply to the fullest extent available in the
international insurance market); and (vii) shall contain a 50/50% Clause per
Lloyd's Aviation Underwriter's Association Standard Policy Form AVS 103. Each
liability policy shall provide that all the provisions thereof, except the
limits of liability, shall operate in the same manner as if there were a
separate policy covering each insured and provide that the exercise by the
insurer of rights of subrogation derived from rights retained by the Borrower
will not delay payment of any claim that would otherwise be payable but for such
rights of subrogation.
E. REPORTS AND CERTIFICATES; OTHER INFORMATION
Borrower will furnish to Lender and Security Trustee (A) on or prior
to the Borrowing Date, insurance certificates describing in reasonable detail
the insurance maintained by Borrower as required pursuant to this Annex C, (B)
prior to the cancellation, lapse or expiration of the insurance policies
required pursuant to this Annex C, evidence of renewal of such insurance
policies, and (C) on or prior to the Borrowing Date and on or before the renewal
dates of the insurance policies carried by Borrower pursuant to this Annex C, a
report signed by a firm of aircraft insurance brokers, not affiliated with
Borrower, regularly retained by the Borrower, stating the opinion of such firm
that all premiums in connection with the insurance then due have been paid and
the insurance then carried and maintained on the Aircraft complies with the
terms hereof and, in the case of renewal insurance, that such renewal insurance
will on and after the effective date thereof so comply with the terms hereof,
PROVIDED that all information contained in such report shall be held
confidential by the Lender and Security Trustee and their respective agents
(PROVIDED that they shall agree for the benefit of the Borrower to hold all such
information similarly confidential) or as may be required by Applicable Law.
Borrower will instruct such firm to give prompt written advice to Lender and
Security Trustee of any default in the payment of any premium and of any other
act or omission on the part of Borrower of which it has knowledge and which
would in such firm's opinion invalidate or render unenforceable, in whole or in
any material part, any insurance on the Aircraft. Borrower will also instruct
such firm to advise Lender and Security Trustee in writing at least 30 days
prior to the termination or cancellation of, or material adverse change in, such
insurance carried and maintained on the Aircraft pursuant to this Annex C (or
such lesser period as may be applicable in the case of war risk, hijacking and
allied perils coverage).
F. RIGHT TO PAY PREMIUMS
The Additional Insureds shall have the rights but not the obligations
of an additional named insured. None of the Additional Insureds shall have any
obligation to pay any premium, commission, assessment or call due on any such
insurance (including reinsurance).
3
<Page>
Notwithstanding the foregoing, in the event of cancellation of any insurance due
to the nonpayment of premiums, each of Lender and Security Trustee shall have
the option, in its sole discretion, to pay any cash premium in respect of the
Aircraft that is due in respect of the coverage pursuant to this Agreement and
to maintain such coverage, as Lender or Security Trustee may require, until the
scheduled expiry date of such insurance and, in such event, Borrower shall, upon
demand, reimburse Lender and Security Trustee for amounts so paid by them.
G. DEDUCTIBLES; SELF-INSURANCE
Borrower may self-insure, by way of deductible or premium adjustment
provisions in insurance policies or otherwise, the risks required to be insured
against pursuant to Section 3.3(k) and this Annex C in such amounts as are then
self-insured with respect to similar owned or leased aircraft in Borrower's
fleet but in no case shall such self-insurance in the aggregate exceed, on a per
occurrence or on a fleetwide basis during any policy year, an amount equal to 5%
of Borrower's tangible net worth, calculated as at the end of Borrower's
immediately preceding fiscal year (but in no event to exceed $10,000,000). A
deductible per occurrence that is not in excess of the prevailing standard
market deductible for similar aircraft shall be permitted, for each aircraft in
Borrower's fleet, in addition to such self-insurance.
4
<Page>
ANNEX D
TO SECURITY AGREEMENT
PERMITTED COUNTRIES
<Table>
Argentina Italy
Australia Japan
Austria Luxembourg
Belgium Mexico
Brazil Netherlands
Canada New Zealand
Denmark Norway
Finland Portugal
France Sweden
Germany Switzerland
Iceland United Kingdom
Ireland
</Table>
5
<Page>
EXHIBIT A TO
SECURITY AGREEMENT
SECURITY AGREEMENT SUPPLEMENT NO. ___
SECURITY AGREEMENT SUPPLEMENT NO. __ (CH-282SK), dated ______
("Security Agreement Supplement"), between Chautauqua Airlines, Inc. (the
"Borrower") and JPMorgan Chase Bank, as Security Trustee under the Security
Agreement (each as hereinafter defined).
W I T N E S S E T H:
WHEREAS, the Aircraft Security Agreement (CH-282SK), dated as of
December 27, 2001 (the "Security Agreement"; capitalized terms used herein
without definition shall have the meanings specified therefore in Annex A to the
Security Agreement), between the Borrower and JPMorgan Chase Bank, as Security
Trustee (the "Security Trustee"), provides for the execution and delivery of
supplements thereto substantially in the form hereof which shall particularly
describe the Aircraft, and shall specifically grant a security interest in the
Aircraft to the Security Trustee; and
[WHEREAS, the Security Agreement relates to the Airframe and Engines
described in Annex A attached hereto and made a part hereof, and a counterpart
of the Security Agreement is attached to and made a part of this Security
Agreement Supplement;](1)
[WHEREAS, the Borrower has, as provided in the Security Agreement,
heretofore executed and delivered to the Security Trustee Security Agreement
Supplement(s) for the purpose of specifically subjecting to the Lien of the
Security Agreement certain airframes and/or engines therein described, which
Security Agreement Supplement(s) is/are dated and has/have been duly recorded
with the FAA as set forth below, to wit:
DATE RECORDATION DATE FAA DOCUMENT NUMBER]*(2)
- ----------
(1) Use for Security Agreement Supplement No. 1 only.
(2)* Use for all Security Agreement Supplements other than Security Agreement
Supplement No. 1.
<Page>
NOW, THEREFORE, to secure the prompt and complete payment (whether at
the stated maturity, by acceleration or otherwise) of all principal of, interest
on and all other amounts payable by the Borrower under the Operative Agreements
(excluding those arising under or relating to Loan B) and under the Related
Operative Agreements (excluding those arising under or relating to the Related
Loans B) now in existence or hereafter incurred, and the performance and
observance by the Borrower of all the agreements and covenants to be performed
or observed by it for the benefit of the Lender and the Security Trustee
contained in the Operative Agreements (excluding those arising under or relating
to Loan B) and the Related Operative Agreements (excluding those arising under
or relating to the Related Loans B), and in consideration of the Note A and the
Related Notes A and the premises and of the covenants contained in the Security
Agreement, the other Operative Agreements and the Related Operative Agreements,
and of other good and valuable consideration given to the Borrower by the
Security Trustee at or before the delivery hereof, the receipt of which is
hereby acknowledged, the Borrower has granted, bargained, sold, conveyed,
transferred, mortgaged, assigned, pledged and confirmed, and does hereby grant,
bargain, sell, convey, transfer, mortgage, assign, pledge and confirm, unto the
Security Trustee and its permitted successors and assigns, for the security and
benefit of the Security Trustee and the Lender, a security interest in, and
mortgage lien on, all estate, right, title and interest of the Borrower in, to
and under, all and singular, the Airframe and Engines described in Annex A
attached hereto, whether or not any such Engine shall be installed on the
Airframe or any other airframe of any other aircraft, and any and all Parts,
and, to the extent provided in the Security Agreement, all substitutions and
replacements of and additions, improvements, accessions and accumulations to the
Aircraft, the Airframe, the Engines and any and all Parts;
To have and to hold all and singular the aforesaid property unto the
Security Trustee, its permitted successors and assigns, forever, in trust, upon
the terms and trusts set forth in the Security Agreement, for the benefit,
security and protection of the Lender from time to time, and for the uses and
purposes and subject to the terms and provisions set forth in the Security
Agreement.
This Security Agreement Supplement may be executed in any number of
counterparts (and each of the parties hereto shall not be required to execute
the same counterpart). Each counterpart of this Security Agreement Supplement
including a signature page executed by each of the parties hereto shall be an
original counterpart of this Security Agreement Supplement, but all of such
counterparts together shall constitute one instrument
This Security Agreement Supplement shall be construed as supplemental
to the Security Agreement and shall form a part thereof, and the Security
Agreement is hereby incorporated by reference herein and is hereby ratified,
approved and confirmed.
THIS SECURITY AGREEMENT SUPPLEMENT IS BEING DELIVERED IN THE STATE OF
NEW YORK AND SHALL IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE, BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF NEW YORK.
2
<Page>
IN WITNESS WHEREOF, the undersigned have caused this Supplement No. __ to be
duly executed by their respective duly authorized officers, on the day and year
first above written.
CHAUTAUQUA AIRLINES, INC.
By:
--------------------------------
Name:
--------------------------
Title:
-------------------------
JPMORGAN CHASE BANK,
as Security Trustee
By:
--------------------------------
Name:
--------------------------
Title:
-------------------------
3
<Page>
ANNEX A TO
SECURITY AGREEMENT
SUPPLEMENT NO.
DESCRIPTION OF AIRFRAME AND ENGINES
AIRFRAME
<Table>
<Caption>
MANUFACTURER'S
MANUFACTURER MODEL FAA REGISTRATION NO. SERIAL NO.
Embraer EMB-145LR N282SK 145409
</Table>
ENGINES
<Table>
<Caption>
MANUFACTURER'S
MANUFACTURER MODEL SERIAL NO.
Allison Engine Company Inc. AE3007A1P 311737
Allison Engine Company Inc. AE3007A1P 311740
</Table>
Each Engine is of 750 or more "rated take-off horsepower" or the equivalent of
such horsepower.
<Page>
EXHIBIT B
TO SECURITY AGREEMENT
LEASE ASSIGNMENT
DATED AS OF [_______ __, _____]
BY AND AMONG
CHAUTAUQUA AIRLINES, INC.
AND
JPMORGAN CHASE BANK,
NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY AS SECURITY TRUSTEE,
AIRCRAFT LEASE AGREEMENT, DATED AS OF [__________],
BETWEEN CHAUTAUQUA AIRLINES, INC., AS LESSOR,
AND
[__________],
AS LESSEE,
RELATING TO
ONE EMBRAER MODEL EMB-145LR
AIRCRAFT BEARING MANUFACTURER'S SERIAL NUMBER 145409
AND U.S. REGISTRATION N282SK
================================================================================
2
<Page>
LEASE ASSIGNMENT, dated as of [_______ __, ____] (the "Assignment") by
and between Chautauqua Airlines, Inc. ("Chautauqua") and JPMorgan Chase Bank, as
Security Trustee (the "Security Trustee").
WHEREAS, pursuant to that certain Aircraft Lease Agreement, dated as
of [_______ __, ____] (the "Lease") between Chautauqua, as lessor, and
[___________], as lessee (the "Lessee"), Chautauqua leased one Embraer EMB-145LR
aircraft bearing manufacturer's serial number 145409 and U.S. Registration No.
N282SK and the aircraft engines described therein (the "Aircraft") to Lessee
upon the terms and conditions set forth therein;
WHEREAS, Chautauqua and the Security Trustee have entered into that
certain Security Agreement, dated as of _______, 2001 (the "Security Agreement")
and Chautauqua has agreed to collaterally assign all of its rights, title and
interest in, to and under the Lease to the Security Trustee; and
WHEREAS, capitalized terms used in this Assignment shall, unless
otherwise defined herein, have the meanings ascribed them in Annex A to that
certain Loan Agreement, dated as of _____, 2001 ("Annex A") among Chautauqua, as
borrower, the Lender named therein and the Security Trustee.
[Add any necessary recording or other information as is required for
recordation with FAA.]
NOW, THEREFORE, the parties hereby agree as follows:
1. Lease Assignment.
(a) For value received and to secure the due and punctual payment
and performance of all the Secured Obligations, Chautauqua hereby collaterally
assigns, transfers and conveys to the Security Trustee, its successors and
assigns, all its right, title and interest in, to and under the Lease, including
but not limited to:
(i) all of Chautauqua's rights and interests as lessor of
the Aircraft and any part thereof at any time subject to the Lease;
(ii) any and all rents, insurance and condemnation proceeds,
and all other payments and other moneys due or to become due, and any
and all claims, rights, powers, remedies, title and interest of
Chautauqua in and to or under or arising out of the Lease (including
without limitation all claims for damages or other sums arising upon
sale or other disposition of or loss of use of or requisition of title
to or use of the Aircraft and any part thereof at any time subject to
the Lease or upon any event of default specified therein (hereinafter
referred to as an "Lease Event of Default");
(iii) all rights, powers, privileges, remedies and other
benefits of Chautauqua under the Lease and all rights to make
determinations, exercise options or elections, give or withhold
consents, waivers and approvals, give notices and exercise remedies
(including the right to declare or exercise remedies
<Page>
with respect to Lease Event of Default and to repossess any property),
to appoint any appraiser or to take any other action under or in
respect of the Lease or accept any surrender or redelivery of the
Aircraft and any part thereof, as well as all the rights, powers and
remedies on the part of Chautauqua, whether arising under the Lease or
by statute or at law or in equity or otherwise, as a result of any
Lease Event of Default or event that, with the giving of notice or the
lapse of time, or both, would become a Lease Event of Default
(hereinafter referred to as a "Lease Default"); and
(iv) all proceeds of the foregoing.
((i), (ii),(iii) and (iv) above, collectively, the "Assigned Rights")
(b) This Assignment is a present assignment and shall be
effective, and the security interest created hereby shall attach, immediately
upon execution of this Assignment; PROVIDED, HOWEVER, that the Security Trustee
shall not be entitled to exercise, and Chautauqua alone shall remain entitled to
exercise, any of the rights, powers, privileges, remedies and other benefits of
Chautauqua described above, unless and until an "Event of Default" under the
Loan Agreement shall have occurred and be continuing.
2. PERFORMANCE OF CHAUTAUQUA'S OBLIGATIONS. It is expressly agreed
that notwithstanding anything herein contained to the contrary, (i) Chautauqua
shall remain liable under the Lease to perform all of its obligations thereunder
to the same extent as if this Assignment had not been executed, and (ii) the
Security Trustee shall not have any obligation or liability under the Lease
solely by reason of or arising out of the Assignment, nor shall the Security
Trustee or any other party be required or obligated in any manner to perform or
fulfill any obligation of Chautauqua under or pursuant to the Lease, or to make
any payment, or to make any inquiry as to the nature or sufficiency of any
payment received by it, or to present or file any claim or to take any other
action to collect or enforce the payment of any amounts to which it or they may
be entitled hereunder at any time or times.
3. EVENT OF DEFAULT. Upon the occurrence of an Event of Default under
the Loan Agreement and at any time thereafter so long as the same shall be
continuing, the Security Trustee may, at its option, exercise one or more of the
remedies set forth below and/or available to it under the Security Agreement or
which may be available to it under the New York Uniform Commercial Code whether
or not applicable in the relevant jurisdiction, as Security Trustee may, in its
sole discretion determine, which remedies are cumulative and in addition to
every other right or remedy provided by law.
3.1 COLLECTION OF LEASE PAYMENTS. Security Trustee may collect and
retain all rents, proceeds, payments and other moneys due or to become due
under the Lease or any other property assigned hereunder and apply such
amount to payments due under the Loan Agreement, as the Security Trustee,
in its discretion, shall determine;
3.2 MAINTENANCE OF LEASE. Security Trustee may assume all or any part
of Chautauqua's right, title and interest in the Lease and/or any other
property assigned thereunder and maintain the Lease and such other property
assigned hereunder in full
2
<Page>
force and effect, with the Security Trustee, substituted for Chautauqua as
the beneficiary thereunder, and in any such event all the right, title and
interest of Chautauqua therein shall be extinguished and the Security
Trustee, shall be entitled to collect and retain all rents and payments
thereunder; and/or
3.3 SALE. Security Trustee may sell at public or private sale, without
appraisal, for such price as it may deem fair, the Lease and all
Chautauqua's right, title and interest therein, in which case the Security
Trustee shall give Chautauqua at least 15 days' notice of the date fixed
for any public sale or of the date on or after which will occur the
execution of any contract providing for any private sale thereof, and each
purchaser at any such sale shall hold such property absolutely free from
any claim or right on the part of Chautauqua, Chautauqua hereby waiving and
releasing (to the extent permitted by law) all rights of redemption, stay,
appraisal, reclamation and turnover that Chautauqua now has or may at any
time in the future have under any rule of law or statute now existing or
hereafter enacted.
4. WAIVER, INVALIDITY OF REMEDIES. Chautauqua waives any right to
require the Security Trustee to pursue any other remedy it may have against
Chautauqua. The invalidity or unenforceability of any remedy in any jurisdiction
shall not invalidate such remedy or render it unenforceable in any other
jurisdiction. The invalidity or unenforceability of any of the remedies provided
herein in any jurisdiction shall not in any way affect the right to enforcement
in such jurisdiction or elsewhere of any of the other remedies provided herein.
5. POWER OF ATTORNEY. Chautauqua does hereby constitute the Security
Trustee and its successors and assigns, its respective true and lawful
attorney-in-fact, with full power (in the name of Chautauqua or otherwise) and
at the expense of Chautauqua but for the use and benefit of the Security
Trustee, at any time after an Event of Default under the Loan Agreement has
occurred and for so long as it is continuing, to enforce each and every term and
provision of the Lease and any other property assigned hereunder, to ask,
require, demand, receive, collect, compound and give acquittance and discharge
for any and all moneys and claims for moneys due and to become due under or
arising out of the Lease or any other property assigned hereunder, to endorse
any checks or other instruments or orders in connection therewith, to settle,
compromise, compound or adjust any such claims, to exercise and enforce any and
all claims, rights, powers or remedies of every kind and description of
Chautauqua under or arising out of the Lease or any other property assigned
hereunder, to file, commence, prosecute, compromise and settle in the name of
Chautauqua or the Security Trustee, or otherwise any suits, actions or
proceedings at law or in equity in any court, to collect any such moneys or to
enforce any rights in respect thereto on all other claims, rights, powers and
remedies of every kind and description of Chautauqua under or arising out of the
Lease or any other property assigned hereunder and generally to sell, assign,
transfer, pledge, make any agreement with respect to or otherwise deal with any
of such claims, rights, powers and remedies as fully and completely as though
the Security Trustee were the absolute owner thereof for all purposes, and at
such times and in such manner as may seem to the Security Trustee to be
necessary or advisable or convenient or proper in its absolute discretion.
6. EXECUTION OF DOCUMENTS. Chautauqua agrees that at any time or from
time to time, upon the written request of the Security Trustee, it shall
promptly and duly execute and
3
<Page>
deliver any and all such further instruments, documents and financing statements
and do such other acts and things as the Security Trustee may reasonably request
in order to obtain the full benefit of this Assignment and the rights and powers
granted herein. Chautauqua agrees to give a notice of assignment in the form of
Exhibit A hereto to the Lessee and to obtain from the Lessee a consent to
assignment in the form of Exhibit B hereto concurrently with its execution of
this Agreement.
7. ASSIGNMENT; PAYMENTS. The Security Trustee may at any time sell,
assign, transfer or otherwise dispose of its interest in the Lease, this
Assignment, and in the property and security created thereby and hereby, but
only in accordance with the express provisions of the Security Agreement and
other Operative Agreements. Chautauqua shall not assign, delegate, pledge or
otherwise encumber any of its rights or obligations hereunder except as provided
herein.
8. CHAUTAUQUA'S REPRESENTATIONS AND WARRANTIES. Chautauqua represents
and warrants that it has not assigned, transferred or pledged, and hereby
covenants that it will not assign, transfer or pledge, the whole or any part of
the rents, moneys, claims, rights, powers, remedies, titles or interests hereby
assigned except as provided herein.
9. GOVERNING LAW. This Assignment is being delivered in the State of
New York, United States of America. This Assignment, including all matters of
construction, validity and performance, shall in all respects be governed by,
and construed in accordance with, the laws of the State of New York applicable
to contracts made in such State by residents thereof and to be performed
entirely within such State.
10. COUNTERPARTS. This Assignment may be executed in several
counterparts, each of which shall be deemed an original, and all such
counterparts shall constitute one and the same instrument.
11. MISCELLANEOUS. This Assignment may not be amended, supplemented,
modified or waived without the prior written consent of the Security Trustee and
CHAUTAUQUA. This Assignment shall be binding upon, and inure to the benefit of,
the parties hereto and their respective successors and permitted assigns. Except
as otherwise provided in this Assignment, all notices hereunder shall be in
writing and shall be given in the manner and at the addresses provided for
notices under the Loan Agreement.
[CONTINUED ON THE FOLLOWING PAGE]
4
<Page>
IN WITNESS WHEREOF, each of these parties hereto have duly executed this
Assignment as of the date first set forth above.
CHAUTAUQUA AIRLINES, INC.
By:
----------------------------------------
Name:
Title:
JPMorgan Chase Bank, as Security Trustee
By:
----------------------------------------
Name:
Title:
5
<Page>
EXHIBIT A
NOTICE OF ASSIGNMENT
[__________,_____]
[Name and Address of Lessee
Ladies and Gentlemen:
We hereby give you notice that by that certain Lease Assignment dated
as of [_______ __, ____] and made among Chautauqua Airlines, Inc. ("Chautauqua")
and JPMorgan Chase Bank, as Security Trustee (the "Security Trustee"),
Chautauqua has collaterally assigned to the Security Trustee all right, title
and interest in, to and under that certain Aircraft Lease Agreement dated as of
[_______ __, ____] (the "Lease") between Chautauqua and you relating to one
[__________] aircraft bearing manufacturer's serial number [_____].
Henceforth, (a) upon receipt of written notice from Security Trustee
that an Event of Default has occurred and is continuing under the Loan Agreement
all moneys that may be payable by you under said Lease shall be paid to the
Security Trustee and (b) all notices, documents and materials required to be
delivered by you to Chautauqua under the Lease shall be delivered to the
Security Trustee, and not to Chautauqua, at: [________, ______________________]
Attention: [______________].
This notice and the instructions herein contained are irrevocable.
Please acknowledge receipt of this notice to the Security Trustee on the
enclosed consent to assignment.
CHAUTAUQUA AIRLINES, INC.
By:
----------------------------------------
Name:
Title:
JPMorgan Chase Bank, as Security Trustee
By:
----------------------------------------
Name:
Title:
<Page>
EXHIBIT B
CONSENT TO ASSIGNMENT
[Name of Lessee]
[______ ____,_____]
To: Those parties listed on Schedule A attached hereto
Ladies and Gentlemen:
We acknowledge receipt of a copy of (i) a Notice of Assignment dated
as of [_______ __, ____] and (ii) a Lease Assignment dated as of [_______ __,
____] (the "Assignment") by and among Chautauqua Airlines, Inc. and JPMorgan
Chase Bank, as Security Trustee, as adequate notice of such Assignment.
For good and valuable consideration, the receipt of which we hereby
acknowledge, we hereby agree that upon receipt of written notice from the
Security Trustee that an Event of Default has occurred under the Loan Agreement
and is continuing and thereafter, until otherwise notified in writing by
Security Trustee, (i) all moneys that may be payable by us pursuant to the Lease
shall be paid to the Security Trustee's account at: ________________________ and
(ii) all notices, documents and materials required to be delivered to Chautauqua
under the Lease shall be delivered to the Security Trustee at such address as
listed on the attached Schedule A.
This consent shall be governed by and construed in accordance with the
laws of the State of New York.
[NAME OF LESSEE]
By:
----------------------------------
Name:
Title:
<Page>
SCHEDULE A TO CONSENT TO ASSIGNMENT
CHAUTAUQUA AIRLINES, INC.
2500 S. High School Road
Suite 160
Indianapolis, IN 46241-4943
JPMORGAN CHASE BANK
Institutional Trust Services
450 West 33rd Street, 15th Floor
New York, New York
Attn: Carol Ng