EXHIBIT 99.I
AIRCRAFT CONDITIONAL SALE AGREEMENT
Dated as of October 24, 2000
between
FIRST SECURITY BANK, N.A., as Seller
not in its individual capacity but solely as trustee
and
ROYAL AVIATION INC., as Buyer
ONE (1) BOEING B737-200A USED AIRCRAFT
bearing Manufacturer's Serial Number 21721
equipped with two (2) Pratt & Witney JT8D-9A Engines
bearing Manufacturer's Serial Numbers 707432 & 687834
Counterpart No. ____ of ____, serially numbered, manually executed counterparts.
To the extent, if any, that this Aircraft Conditional Sale Agreement constitutes
chattel paper under the UCC or similar Applicable Law in Canada, no security
interest in it, or assignment of Seller's interest in it, may be created through
the transfer and possession of any counterpart other than Counterpart No. 1.
TABLE OF CONTENTS
SECTION 1. Definitions and Interpretation..................................................................... 1
------------------------------
1.1 Definitions........................................................................................... 1
-----------
1.2 Other Terms........................................................................................... 8
-----------
1.3 Interpretation........................................................................................ 8
--------------
SECTION 2. Purchase and Sale.................................................................................. 9
-----------------
2.1 Agreement to Sell and Purchase........................................................................ 9
------------------------------
2.2 Purchase Price........................................................................................ 9
--------------
2.3 Payment Terms......................................................................................... 9
-------------
2.4 Aggregate Purchase Price Paid......................................................................... 9
-----------------------------
2.5 Closing Deliveries.................................................................................... 10
------------------
2.6 Conditions Precedent.................................................................................. 10
--------------------
2.7 Aircraft Condition.................................................................................... 10
------------------
2.8 Removal From Market................................................................................... 10
-------------------
SECTION 3. Interim Lease; Term and Rent....................................................................... 10
----------------------------
3.1 Interim Lease......................................................................................... 11
-------------
3.2 Term and Basic Rent................................................................................... 11
-------------------
3.3 Supplemental Rent..................................................................................... 11
-----------------
3.4 Payments to Seller; Non-Business Day Due Date......................................................... 11
---------------------------------------------
3.5 Force Majeure......................................................................................... 11
-------------
3.6 Fuel at Interim Lease Date............................................................................ 12
--------------------------
SECTION 4. Conditions Precedent............................................................................... 12
--------------------
4.1 Buyer's Conditions Precedent.......................................................................... 12
----------------------------
ii
4.2 Seller's Conditions Precedent......................................................................... 12
-----------------------------
SECTION 5. Delivery Conditions................................................................................ 13
-------------------
SECTION 6. Return of Equipment................................................................................ 13
-------------------
6.1 Return of Aircraft; Condition Upon Return............................................................. 13
------------------------------------------
6.2 Manuals............................................................................................... 16
-------
6.3 Extension of Term Due to Conditions Upon Return....................................................... 16
-----------------------------------------------
6.4 Non-Compliance........................................................................................ 16
--------------
6.5 Fuel at Return........................................................................................ 17
--------------
SECTION 7. Seller's Representations and Warranties............................................................ 17
---------------------------------------
7.1 Disclaimer of Representations......................................................................... 17
-----------------------------
7.2 Seller's Representations, Warranties and Covenants.................................................... 17
--------------------------------------------------
7.3 Enforcement of Warranties............................................................................. 19
-------------------------
7.4 Assignment of Warranties.............................................................................. 19
------------------------
SECTION 8. Buyer's Representations, Warranties and Covenants.................................................. 19
-------------------------------------------------
8.1 Corporate Existence and Qualification................................................................. 19
-------------------------------------
8.2 Certificated Air Carrier.............................................................................. 19
------------------------
8.3 Corporate Authority................................................................................... 19
-------------------
8.4 Authorization and Non-contravention................................................................... 19
-----------------------------------
8.5 Consents.............................................................................................. 20
--------
8.6 Execution and Binding Effect.......................................................................... 20
----------------------------
8.7 Litigation............................................................................................ 20
----------
8.8 Filings............................................................................................... 20
-------
8.9 Tax Returns and Payments.............................................................................. 20
------------------------
8.10 Disclosure............................................................................................ 21
----------
iii
8.11 Principal Place of Business........................................................................... 21
---------------------------
SECTION 9. Additional Covenants of Buyer...................................................................... 21
-----------------------------
9.1 Financial and Other Information....................................................................... 21
-------------------------------
9.2 Liens................................................................................................. 22
-----
9.3 Eurocontrol and Nav Canada............................................................................ 22
--------------------------
SECTION 10. Registration; Maintenance; Operation.............................................................. 22
------------------------------------
10.1 Registration.......................................................................................... 22
------------
10.2 Maintenance........................................................................................... 22
-----------
10.3 Fees and Charges...................................................................................... 24
----------------
10.4 Operation of the Equipment............................................................................ 24
--------------------------
10.5 Maintenance of Certain Engines........................................................................ 24
------------------------------
10.6 Data.................................................................................................. 24
----
SECTION 11. Possession........................................................................................ 25
----------
11.1 Transfers of Possession............................................................................... 25
-----------------------
11.2 Terms of Transfers.................................................................................... 26
------------------
11.3 Cross-Waiver.......................................................................................... 26
------------
11.4 Early Purchase Option................................................................................. 27
---------------------
SECTION 12. Replacement and Pooling of Parts; Modifications; Engine Exchange.................................. 27
----------------------------------------------------------------
12.1 Replacement of Parts.................................................................................. 27
--------------------
12.2 Pooling of Parts...................................................................................... 27
----------------
12.3 Alterations, Modifications and Additions.............................................................. 28
----------------------------------------
SECTION 13. Loss.............................................................................................. 29
----
13.1 Event of Loss With Respect to the Airframe............................................................ 29
------------------------------------------
iv
13.2 Event of Loss With Respect to an Engine............................................................... 29
---------------------------------------
13.3 Application of Payments............................................................................... 30
-----------------------
13.4 Application of Payments During Default or Event of Default............................................ 30
----------------------------------------------------------
SECTION 14. Insurance......................................................................................... 30
---------
14.1 Insurance Requirements................................................................................ 30
----------------------
14.2 Insurance Reports..................................................................................... 33
-----------------
14.3 Additional Insurance.................................................................................. 33
--------------------
SECTION 15. Inspections....................................................................................... 33
-----------
SECTION 16. Insignia.......................................................................................... 33
--------
SECTION 17. Events of Default................................................................................. 34
-----------------
SECTION 18. Remedies.......................................................................................... 36
--------
18.1 Seller Entitled to Exercise Remedies.................................................................. 36
------------------------------------
18.2 Remedies of Seller.................................................................................... 36
------------------
18.3 Monetary Damages Payable by Buyer..................................................................... 37
---------------------------------
18.4 Remedies Not Exclusive................................................................................ 37
----------------------
SECTION 19. Seller's Right to Perform for Buyer............................................................... 37
-----------------------------------
SECTION 20. Further Assurances................................................................................ 38
------------------
SECTION 21. Buyer's Indemnities............................................................................... 38
-------------------
21.1 General Tax Indemnity................................................................................. 38
---------------------
21.2 General Indemnity..................................................................................... 39
-----------------
21.3 Survival of Indemnities; Net Obligations.............................................................. 40
----------------------------------------
SECTION 22. Net Agreement; No Setoff or Counterclaim.......................................................... 40
----------------------------------------
SECTION 23. Assignment........................................................................................ 41
----------
23.1 Binding on Assignees.................................................................................. 41
--------------------
v
23.2 No Assignment by Buyer................................................................................ 41
----------------------
23.3 Permitted Transfers by Seller......................................................................... 41
-----------------------------
23.4 Tax-Free Exchange..................................................................................... 42
-----------------
SECTION 24. Quiet Enjoyment................................................................................... 42
---------------
SECTION 25. Gross-Up.......................................................................................... 43
--------
SECTION 26. Miscellaneous..................................................................................... 43
-------------
26.1 Survival.............................................................................................. 43
--------
26.2 Brokers............................................................................................... 43
-------
26.3 Expenses.............................................................................................. 43
--------
26.4 Governing Law......................................................................................... 44
-------------
26.5 Consent to Jurisdiction............................................................................... 44
-----------------------
26.6 Notices............................................................................................... 44
-------
26.7 Severability.......................................................................................... 45
------------
26.8 Amendments............................................................................................ 45
----------
26.9 Interpretation........................................................................................ 45
--------------
26.10 Descriptive Headings.................................................................................. 45
--------------------
26.11 Counterparts.......................................................................................... 45
------------
26.12 Entire Agreement...................................................................................... 46
----------------
Exhibit A - TECHNICAL ACCEPTANCE CERTIFICATE................................................................... 48
Exhibit B - AGREEMENT INTERIM LEASE SUPPLEMENT................................................................. 50
Exhibit C - LEASE DELIVERY RECEIPT............................................................................. 53
Exhibit D - BILL OF SALE ...................................................................................... 55
Exhibit E - CLOSING DELIVERY RECEIPT........................................................................... 56
vi
Exhibit F - REDELIVERY RECEIPT.................................................................................. 58
Exhibit G - CONFIRMATION........................................................................................ 60
Exhibit H - AUTHORIZATION LETTER................................................................................ 61
Schedule I - FINANCIAL TERMS.................................................................................... 62
vii
AIRCRAFT CONDITIONAL SALE AGREEMENT
This AIRCRAFT CONDITIONAL SALE AGREEMENT (this "Agreement"), dated as
of October 24, 2000 (the "Effective Date"), is by and between First Security
Bank, N.A., a national banking association, not in its individual capacity but
solely as trustee under that certain Trust Agreement No. III dated as of
December 30, 1991, as amended ("Seller"), and Royal Aviation Inc., d/b/a/ Royal
Airlines, a Canadian corporation ("Buyer"). The following sections set forth
the agreement of Seller and Buyer.
SECTION 1. Definitions and Interpretation.
------------------------------
1.1 Definitions. The following terms shall have the following
-----------
meanings for all purposes of this Agreement.
"Actual Cost" means, as it applies to any maintenance work on the
-----------
Equipment, the actual cost of replacement parts plus the cost of the associated
labor at Buyer's lowest labor rates charged to third parties (if the work is
performed by Buyer) or at third party costs charged to Buyer (if the work is
performed by third parties) and shall not include late charges, interest or
other similar amounts.
"Additional Installment" has the meaning set forth in Section 2.3(b)
---------------------- --------------
hereof.
"Additional Installment Date" has the meaning set forth in Section
--------------------------- -------
2.3(b) hereof, it being the intent of the parties that this Agreement be
- ------
interpreted in such a manner such that each Additional Installment Date shall
coincide with a Rent Payment Date.
"Agreement Interim Lease Supplement" means the Agreement Interim Lease
----------------------------------
Supplement to be executed and delivered by Seller and Buyer on the Interim Lease
Date substantially in the form attached as Exhibit B for the purpose of leasing
the Equipment under this Agreement during the period from the Interim Lease Date
to the Closing Date.
"Aircraft" means the Airframe and each Engine.
--------
"Airframe" means (i) the Boeing B737-200A aircraft airframe bearing
--------
manufacturer's serial number 21721, excluding the Engines or engines from time
to time installed on such airframe, (ii) any and all Parts so long as such Parts
are incorporated in, installed on or attached to such airframe or so long as
title to such Parts is vested in Seller in accordance with the terms of Section
-------
12 after removal from such airframe, and (iii) all substitutions, replacements
- --
or renewals from time to time made in or to such airframe or to any of the Parts
referred to in clause (ii) above as required or permitted under this Agreement.
"Applicable Law" means all applicable (i) laws, treaties and
--------------
international agreements of any national government, (ii) laws of any state,
province, territory, locality or other political subdivision of a national
government, and (iii) rules, regulations, judgments, decrees, orders,
injunctions, writs, directives, licenses and permits of any Governmental Body or
arbitration authority.
"Application" means an application for registration of the Aircraft
-----------
pursuant to this Agreement.
"APU" means (i) the auxiliary power unit(s) installed in the Aircraft
---
on the Interim Lease Date, (ii) any and all Parts, so long as such Parts are
incorporated in, installed on or attached to such auxiliary power unit or so
long as title to such Parts is vested in Seller in accordance with the terms of
Section 12 after removal from such auxiliary power unit, and (iii) all
- ----------
substitutions, replacements or renewals from time to time made in or to such
auxiliary power unit or to any of the Parts referred to in clause (ii) above as
required or permitted under this Agreement.
"Authorization Letter" means an letter on Buyer's letterhead
--------------------
substantially in the form attached as Exhibit H.
"Basic Rent" means the rent payable for the Equipment.
----------
"Bill of Sale" means the Bill of Sale to be executed and delivered by
------------
Seller to Buyer on the Closing Date substantially in the form attached as
Exhibit D for the purpose of transferring title to the Equipment to Buyer.
"Business Day" means any day other than (i) a Saturday, a Sunday or
------------
(ii) a day on which commercial banking institutions in Boston, Massachusetts, or
Montreal, Quebec are authorized or required to be closed.
"Canadian Aviation Law" means the Aeronautics Act (Canada) and/or the
---------------------
Canada Transportation Act, as amended, or any successor statutory provisions and
the regulations promulgated under such provisions.
"Canadian Aviation Regulations" means the Canadian Aviation
-----------------------------
Regulations and/or the Air Transportation Regulations of the Consolidated
Regulations of Canada, or any successor regulatory provisions.
"Canadian Government" means the federal government of Canada or any
-------------------
Governmental Body of such government that is backed by the full faith and credit
of such government.
"`C' Check" means a "C" check on the Airframe under the Maintenance
---------
Program.
"Certificated Air Carrier" means any air carrier that either:
------------------------
(a) is a "citizen of the United States" as defined in Section
40102(a)(15) of the Federal Aviation Law, who (i) holds a valid air carrier
certificate and operating specifications issued under Part 119 of the Federal
Aviation Regulations authorizing said air carrier to conduct operations pursuant
to Part 121 of the Federal Aviation Regulations, (ii) holds a valid certificate
of public convenience and necessity issued under Chapter 411 of the Federal
Aviation Law, and (iii) is a Person holding an "air carrier operating
certificate issued pursuant to Chapter 447 of
2
Title 49 for aircraft capable of carrying 10 or more individuals or 6,000 pounds
or more of cargo" as that phrase is used in Section 1110 of the Bankruptcy Code;
or
- --
(b) holds an Air Operator Certificate and the required Air Carrier
Licenses issued under the Canadian Aviation Regulations.
"Closing" means the performance of all actions necessary to consummate
-------
the sale of the Equipment by Seller to Buyer, including, without limitation,
payment in full of the Purchase Price by Buyer to Seller, and the transfer of
title to the Equipment from Seller to Buyer.
"Closing Date" means the day that is one month after the day on which
------------
the last Additional Installment becomes due and payable, unless such date is a
day other than a Business Day, in which case the Closing Date shall be the
immediately preceding Business Day.
"Closing Delivery Receipt" means the Delivery Receipt to be executed
------------------------
and delivered by Seller and Buyer on the Closing Date substantially in the form
attached as Exhibit E.
"Confirmation" means the Confirmation of Interested Parties
------------
substantially in the form attached as Exhibit G.
"Data" means (i) the logs, manuals and other documentation and data
----
delivered to Buyer in connection with the delivery of the Equipment, (ii) the
logs, manuals and other documentation and data that Buyer is required to
maintain with respect to the Equipment during the Interim Lease Term pursuant to
the Maintenance Program and by any Governmental Body and pursuant to all other
Applicable Laws as applicable to Buyer's maintenance and operation of the
Equipment, updated and maintained by Buyer for the Equipment through the Return
Date, and (iii) all logs, manuals and data that the Buyer maintains with respect
to the Equipment.
"Default" means an event that, upon the giving of notice or the lapse
-------
of time, or both, would become an Event of Default.
"Delivery Installment" has the meaning set forth in Section 2.3(a)
-------------------- --------------
hereof.
"Delivery Location" has the meaning set forth in Section 3.1(a)
----------------- --------------
hereof.
"Dollars" or "$" shall mean the legal currency of the United States of
------- -
America.
"Engines" means those two (2) Pratt & Witney JT8D-9A Engines bearing
-------
Manufacturer's Serial Numbers 707432 & 687834, whether or not from time to time
installed on the Airframe or installed on any other airframe; provided, however,
that any Replacement Engine may be substituted for any Engine from time to time
pursuant to Section 13.2. The term "Engines" also includes any and all Parts,
------------
so long as such Parts are incorporated in, installed on or attached to an Engine
or so long as title to such Parts is vested in Seller in accordance with the
terms of Section 12 after removal from an Engine, and all substitutions,
----------
replacements or renewals from time to time made in or to an Engine or to any of
the items referred to above or to any part of such items as required or
permitted under this Agreement.
3
"Engine Maintenance Contract" has the meaning specified in Section
--------------------------- -------
10.2(c) hereof.
- -------
"Engine Maintenance Provider" has the meaning specified in Section
--------------------------- -------
10.2(c) hereof.
- -------
"Engine Shop Visit" means any scheduled or unscheduled maintenance or
-----------------
overhaul performed on an Engine pursuant to the Maintenance Program (or, in
connection with any period prior to the Interim Lease Date, an equivalent
maintenance inspection under any prior maintenance program) that requires the
removal of such Engine from the Airframe or an airframe in order that such
scheduled or unscheduled maintenance or overhaul may be performed, the result of
which is to restore serviceability; provided, however, that such maintenance or
-------- -------
overhaul shall not include (a) maintenance of components associated with an
installed Engine, e.g., quick engine change kits, nose cowls or thrust
reversers, (b) any overhaul or maintenance required as a result of foreign
object damage or mishandling, or (c) any cost that is covered by insurance or
warranty.
"Equipment" means, collectively, the Aircraft, and where the context
---------
permits or requires, the Data.
"Eurocontrol" means that organization (or any successor thereto)
-----------
established under the 1960 Brussels Convention relating to Co-operation for the
Safety of Air Navigation, as amended by the Brussels Protocol 1981, and as from
time to time further amended.
"Event of Default" has the meaning specified in Section 17 hereof.
---------------- ----------
"Event of Loss" with respect to any property means any of the
-------------
following events with respect to such property:
(a) the actual or constructive loss of such property or the use
thereof due to the destruction of or damage to such property which renders
repair uneconomical or which renders such property permanently unfit for normal
use by Buyer;
(b) any damage to such property or other occurrence which results in
an insurance settlement with respect to such property on the basis of a total
loss or a constructive, compromised, arranged or agreed total loss;
(c) the confiscation, condemnation, seizure, forfeiture or
requisition of the title to such property (for any reason whatsoever and whether
de jure or de facto);
(d) the disappearance, hijacking or theft (including a seizure of
title or use not otherwise included in this definition) of such property for a
continuous period in excess of sixty (60) days; and/or
(e) requisition of use of such property by any Governmental Body or
purported Government Entity of use or hire of such property which shall have
resulted in the loss
4
of possession or use of such property by Buyer for a continuous period in excess
of sixty (60) days or, if less, the remaining Interim Lease Term.
An Event of Loss with respect to the Aircraft shall be deemed to have occurred
if an Event of Loss occurs with respect to the Airframe. An Event of Loss with
respect to any Engine without loss of the Airframe shall not be deemed to be an
Event of Loss with respect to the Aircraft.
"Event of Loss Date" shall mean (i) with respect to any Event of Less
------------------
set forth in clause (a) or (b) of the definition of "Event of Loss," the
earliest of: (x) the date of actual loss, (y) the date on which the loss is
agreed, arranged or compromised by the insurers, or (z) sixty (60) days after
the date of notice to Buyer's brokers or insurers claiming the loss, (ii) with
respect to any Event of Loss set forth in clause (c) of the definition of Event
of Loss, the date such event, condition or circumstance occurs, or (iii) with
respect to any Event of Loss set forth in clause (d) or (e) of the definition of
Event of Loss, the date on which insurers make payment on the basis of a total
loss.
"FAA" means the Federal Aviation Administration of the U.S. Department
---
of Transportation, or any successor agency administering the Federal Aviation
Law.
"Federal Aviation Regulations" means Title 14 of the United States
----------------------------
Code of Federal Regulations, as amended, or any successor regulatory provisions.
"Federal Aviation Law" means Title 49 of the United States Code, as
--------------------
amended, or any successor statutory provisions and the regulations promulgated
under such provisions.
"Final Installment" has the meaning set forth in section 2.3(c)
-----------------
hereof.
"Flight Hour" means (i) with respect to the Airframe, any hour or any
-----------
fraction of an hour measured from the time the wheels of the Airframe leave the
ground until the wheels next touch the ground, or (ii) with respect to any
Engine, any Landing Gear or the APU, any hour or any fraction of an hour
measured from the time the wheels of any airframe on which such Engine, Landing
Gear or the APU is installed leave the ground until the wheels next touch the
ground.
"GAAP" means generally accepted accounting principles as in effect in
----
the United States, consistently applied, as of the date of such application.
"Governmental Body" shall mean any department, commission, board,
-----------------
bureau, court. legislature, agency, instrumentality or authority of any national
government or any political subdivision of a national government to the extent
that any such entity has jurisdiction over the Equipment, the Buyer or its
operations.
"Indemnitee" means and includes Seller, EQUIS Financial Group, LLC,
----------
any beneficiary of that certain Trust Agreement No. III dated as of December 30,
1991, as amended, of which Seller and various limited partnerships managed by
EQUIS Financial Group, LLC, are parties, Sigma Aircraft Management, LLC, all
shareholders, partners, directors, officers,
5
employees, contractors and agents of any of the foregoing, and any permitted
successor or assignee of such parties.
"Interim Lease Date" means the date of the Agreement Interim Lease
------------------
Supplement.
"Interim Lease Term" means the period commencing on the Interim Lease
------------------
Date and terminating on the Closing Date, unless such term is earlier terminated
or extended in accordance with the terms of this Agreement.
"Landing Gear" means (i) each of the three landing gear listed in the
------------
Agreement Interim Lease Supplement, (ii) any and all Parts, so long as such
Parts are incorporated in, installed on, attached to or appurtenant to any such
landing gear or so long as title to such Parts is vested in Seller in accordance
with the terms of Section 12 after removal from any such landing gear, and (iii)
----------
all substitutions, replacements or renewals from time to time made in or to any
such landing gear or to any of the Parts referred to in clause (ii) above as
required or permitted under this Agreement.
"Landing Gear Overhaul" means any scheduled overhaul of the Landing
---------------------
Gear under the Maintenance Program.
"Lease Delivery Receipt" means the Delivery Receipt to be executed and
----------------------
delivered by Seller and Buyer on the Interim Lease Date substantially in the
form attached as Exhibit C.
"Lien" means any security agreement, mortgage, chattel mortgage,
----
pledge, lien, charge, encumbrance, hypothec, lease, exercise of rights, security
interest or lease in the nature of a security interest (including any
conditional sales agreement, equipment trust agreement or other title retention
agreement), statutory rights in rem or claim of any kind.
-- ---
"Maintenance Program" means the Transport Canada approved air
-------------------
operator's maintenance control system of Buyer that meets the requirements of
the Canadian Aviation Regulations applicable to the Airframe and the Engines.
"Nav Canada" means ANS Corporation, a corporation incorporated on May
----------
26, 1995, under Part II of the Canada Corporations Act.
"Operative Documents" means, collectively, this Agreement, Schedule I
-------------------
hereof, the Technical Acceptance Certificate, Agreement Interim Lease
Supplement, Lease Delivery Receipt, Bill of Sale, Closing Delivery Receipt, and
the Redelivery Receipt, all as amended, restated, modified or supplemented from
time to time.
"Overdue Rate" means 15% per annum (calculated on the basis of a 360-
------------
day year and twelve 30-day months).
"Parts" means any and all appliances, parts, instruments,
-----
appurtenances, accessories, furnishings and other equipment or components of
whatever nature, including landing gear and auxiliary power units but excluding
complete Engines or engines, that may from time to time be incorporated in,
installed on or attached to the Airframe or any Engine or
6
that remain the property of Seller pursuant to the terms of Section 12 of this
----------
Agreement despite removal from the Airframe or any Engine.
"Permitted Liens" means: (i) Seller Liens, (ii) Liens for Taxes either
---------------
not yet due or being contested in good faith by appropriate proceedings (and for
the payment of which adequate reserves have been provided) so long as such
proceedings do not involve any significant likelihood of the sale, forfeiture or
loss of the Equipment, any part of the Equipment or any interest in the
Equipment, and (iii) materialmen's, mechanics', workmen's, repairmen's,
employees' or other like Liens securing obligations arising in the ordinary
course of business for amounts the payment of which is either not yet due or is
being contested in good faith by appropriate proceedings (and for the payment of
which adequate reserves have been provided) so long as such proceedings do not
involve any significant likelihood of the sale, forfeiture or loss of the
Equipment, any Part or any interest in the Equipment.
"Person" means any individual, corporation, partnership, joint
------
venture, association, joint stock company, trust, unincorporated organization or
Governmental Body.
"Purchase Price" has the meaning set forth in section 2.2 hereof.
--------------
"Redelivery Location" has the meaning set forth in Section 6.1 hereof.
------------------- -----------
"Redelivery Receipt" means the Redelivery Receipt to be executed and
------------------
delivered by Seller and Buyer on the Return Date substantially in the form
attached as Exhibit F.
"Rent" means, collectively, Basic Rent and Supplemental Rent.
----
"Rent Payment Date" means the day that is one month after the Interim
-----------------
Lease Date, and the same day of each subsequent calendar month during the
Interim Lease Term. In the event a Rent Payment Date is a day other than a
Business Day, any amount of Basic Rent payable by Buyer to Seller shall be due
on the immediately preceding Business Day.
"Rent Period" means any period commencing on any given Rent Payment
-----------
Date and ending on the day immediately preceding the next succeeding Rent
Payment Date, provided, however, that the last Rent Period shall in any event
end on the Closing Date.
"Replacement Engine" has the meaning specified in Section 13.2 hereof.
------------------ ------------
"Return Date" has the meaning specified in Section 6.1 hereof.
----------- -----------
"Seller Lien" means any Lien with respect to the Equipment or any part
-----------
of the Equipment that results from (i) nonpayment by Seller of any Taxes imposed
on it (except any Taxes in respect of which Buyer is obligated to indemnify
Seller under this Agreement), (ii) claims against the Equipment or Seller not
related to the transactions contemplated by this Agreement or arising out of the
operation of the Equipment during the Interim Lease Term and for which Buyer is
not obligated to indemnify Seller under this Agreement, or (iii) an affirmative
action of Seller not (a) consented to by Buyer or (b) contemplated by this
Agreement.
7
"Stipulated Loss Value" shall be the amount set forth in Schedule I
---------------------
hereto.
"Supplemental Rent" means all amounts, liabilities and obligations
-----------------
which Buyer assumes or agrees to pay under any Operative Document to Seller or
other persons, including, without limitation, payment of indemnities, and
Stipulated Loss Value.
"Supplier" means the manufacturer, supplier, contractor or
--------
subcontractor of the Equipment or any component or part of the Equipment.
"Taxes" shall mean any and all sales, income, withholding, use,
-----
excise, personal property, ad valorem, value added, goods and services, stamp or
other taxes levied upon Seller, Buyer, or the Equipment, including any and all
gross levies or other charges of any nature, together with any penalties, fines,
or interest thereon, imposed, levied or assessed by, or otherwise payable to any
Governmental Body, foreign or domestic.
"Technical Acceptance Certificate" means the Technical Acceptance
--------------------------------
Certificate to be executed and delivered by Buyer to Seller substantially in the
form attached as Exhibit A for the purpose of evidencing Buyer's satisfaction
with the technical condition of the Aircraft prior to the Interim Lease Date.
"Transport Canada" means the agency of the Canadian Government charged
----------------
with regulatory authority over civil aviation, or any successor agency
administering the Canadian Aviation Law.
"UCC" means the Uniform Commercial Code as adopted and in effect in
---
any specified jurisdiction within the United States, or the functional
equivalent thereof in effect in any specified jurisdiction within Canada.
"United States Government" means the federal government of the United
------------------------
States of America or any Governmental Body of such government that is backed by
the full faith and credit of such government.
1.2 Other Terms.
-----------
(a) Any accounting terms not specifically defined in this Agreement
shall be construed in accordance with GAAP.
(b) All terms used in Article 9 of the UCC of the State of New York
and not specifically defined in this Agreement are used in this Agreement as
defined in Article 9 of the UCC of the State of New York.
1.3 Interpretation.
--------------
(a) Terms defined in this Agreement in the singular include the
plural of such terms, and terms defined in this Agreement in the plural include
the singular of such terms.
8
(b) Unless otherwise indicated, any agreement defined or referred to
in this Agreement is intended to mean or refer to such agreement as amended or
supplemented from time to time or as the terms of such agreement are waived or
modified in accordance with its terms.
(c) Unless otherwise indicated, any Applicable Law defined or
referred to in this Agreement is intended to mean or refer to such Applicable
Law as amended from time to time or any successor Applicable Law as amended from
time to time.
(d) Unless otherwise indicated, all hourly references in this
Agreement shall refer to Boston, Massachusetts time.
SECTION 2. Purchase And Sale.
-----------------
2.1 Agreement to Sell and Purchase. Seller agrees to sell the
------------------------------
Equipment to Buyer and Buyer agrees to purchase the Equipment from Seller for
the Purchase Price and subject to the terms and conditions set forth in this
Agreement.
2.2 Purchase Price. The total purchase price for the Equipment shall
--------------
be in the amount of the "Purchase Price" set forth in Schedule I.
2.3 Payment Terms.
-------------
(a) On the Interim Lease Date, Buyer shall pay to Seller an initial
installment in the amount of the "Delivery Installment" set forth in Schedule I.
The foregoing notwithstanding, Seller acknowledges that prior to execution of
this Agreement, Buyer paid a $100,000.00 deposit pending execution of this
Agreement, and said deposit shall be applied as partial payment of the Delivery
Installment.
(b) Buyer shall pay to Seller, 14 additional installment payments
(each an "Additional Installment"), each in the amount set forth in Schedule I,
with the first Additional Installment due on the day that is one month after the
Interim Lease Date, and another Additional Installment shall be due on the same
day of each subsequent calendar month during the Interim Lease Term (each an
"Additional Installment Date"), except that in the event any Additional
Installment Date is other than a Business Day, such Additional Installment shall
be due on the immediately preceding Business Day.
(c) On the Closing Date, Buyer shall pay to Seller one (1) final
payment in the amount of the "Final Installment" set forth in Schedule I.
2.4 Aggregate Purchase Price Paid.
-----------------------------
(a) The aggregate amount of the Delivery Installment and all
Additional Installments to the extent paid (the "Aggregate Purchase Price Paid")
shall be held by Seller, without obligation or liability for payment of interest
thereon, as security for the faithful performance by Buyer of all Buyer's
obligations arising under this Agreement. Seller may, but
9
shall not be required to, segregate the Aggregate Purchase Price Paid from
Seller's general funds.
(b) The Aggregate Purchase Price Paid shall become non-refundable
upon satisfaction of each of the Conditions Precedent set forth in Section 4.1,
-----------
except in the event of an Event of Loss of the Airframe prior to the Interim
Lease Date or in the event Seller fails to deliver the Equipment to Buyer on the
Interim Lease Date in the condition required by Section 5. Upon becoming non-
---------
refundable in accordance with the preceding sentence, the Aggregate Purchase
Price Paid shall be applied to the Purchase Price on the Closing Date; provided,
however, that if there is no Closing for any reason whatsoever, the Aggregate
Purchase Price Paid shall be retained by Seller and deemed Supplemental Rent
attributable to Buyer's use of the Equipment.
2.5 Closing Deliveries.
------------------
(a) On the Closing Date, and subject to Section 2.6 hereof, Seller
-----------
shall deliver to Buyer the Bill of Sale.
(b) On the Closing Date, Buyer shall deliver to Seller the Closing
Delivery Receipt.
2.6 Conditions Precedent. Seller's obligation to sell the Equipment
--------------------
to Buyer on the Closing Date is subject the satisfaction of each of the
following conditions:
(a) No Event of Default of the Buyer shall have occurred on or prior
to the Closing Date and be continuing on the Closing Date;
(b) Buyer shall have promptly paid when due all amounts due and
payable hereunder by Buyer to Seller prior to the Closing Date, including,
without limitation, all Basic Rent, the Delivery Installment, and each
Additional Installment; and
(c) Buyer shall have paid the Final Installment to Seller on the
Closing Date.
2.7 Aircraft Condition. On the Closing Date, Buyer shall purchase
------------------
the Equipment in "AS IS," "WHERE IS" and "WITH ALL FAULTS" condition. Buyer
hereby acknowledges that as at the Closing Date, Buyer shall have been in
possession of the Equipment during the Interim Lease Term and shall have been
solely responsible for all maintenance and repairs of the Equipment during such
Interim Lease Term, and that Seller shall have no responsibility or liability to
Buyer for the condition of the Equipment on the Closing Date.
2.8 Removal From Market. Seller has removed the Aircraft from the
-------------------
market, and for so long as no Event of Default of the Buyer shall have occurred
and be continuing, the Equipment shall remain off the market and be subject to
Buyer's exclusive right to purchase.
SECTION 3. Interim Lease; Term and Rent.
----------------------------
10
3.1 Interim Lease.
-------------
(a) On the Interim Lease Date, Seller shall lease to Buyer, and Buyer
shall lease from Seller, the Equipment on the terms and conditions provided in
this Agreement. On the Interim Lease Date, Seller shall deliver the Equipment
to Buyer at the Tucson International Airport, Tucson, Arizona or such other
location as Seller and Buyer shall agree (the "Delivery Location").
(b) The leasing of the Equipment shall become effective upon
execution and delivery of the Agreement Interim Lease Supplement, and delivery
of the executed Agreement Interim Lease Supplement by Buyer to Seller shall
constitute, without further act, unconditional and irrevocable acceptance by
Buyer of such Equipment under and for all purposes of this Agreement as being
airworthy, in good working order and repair and without defect or inherent vice
in condition, design, operation or fitness for use, whether or not discoverable
by Buyer. Risk of loss with respect to the Equipment shall thereupon be borne by
Buyer.
3.2 Term and Basic Rent.
-------------------
(a) The Equipment shall be leased by the Seller to the Buyer for the
Interim Lease Term.
(b) For so long as no Event of Default of the Buyer shall have
occurred or be continuing, and the Delivery Installment, all Additional
Installments, and the Final Installment, and any other amounts due and payable
hereunder shall be paid promptly when due, the amount of the Basic Rent shall be
zero ($0.00).
3.3 Supplemental Rent. Buyer shall pay to Seller, or to the Person
-----------------
entitled to receive it, the Stipulated Loss Value promptly as it becomes due and
owing and any and all other Supplemental Rent due and owing within ten days
after written demand. Upon any failure by Buyer to pay any Supplemental Rent,
Seller shall have all rights, powers and remedies with respect to such failure
that are provided in this Agreement or by law, equity or otherwise in case of
nonpayment of Basic Rent. Buyer shall also pay to Seller as Supplemental Rent,
on demand and to the extent permitted by Applicable Law, a late fee in the
amount of $500, plus interest at the Overdue Rate on any part of any Delivery
Installment, Additional Installment, or the Final Installment not paid when due
for any period for which any such payment shall be overdue, and on any
Supplemental Rent not paid when due or demanded by Seller for any period for
which the same shall be overdue. The expiration or other termination of this
Agreement shall not limit or modify the obligations of Buyer with respect to any
indemnities contained in this Agreement.
3.4 Payments to Seller; Non-Business Day Due Date. All payments
---------------------------------------------
payable to Seller hereunder shall be paid by Buyer in immediately available
funds to such account as Seller shall advise Buyer of in writing at least five
Business Days prior to the date such payment is due. Any payment due on a date
other than a Business Day shall be due and payable on the immediately preceding
Business Day.
3.5 Force Majeure.
-------------
11
(a) Seller shall not be responsible nor be deemed to be in default
under this Agreement for any delay in delivery of possession or title to the
Equipment or for failure or inability to perform any other obligation under any
of the Operative Documents, if such delay, failure or inability results from any
cause occurring without the gross negligence or willful misconduct of Seller and
beyond the reasonable control of Seller including war, warlike operations, acts
of government or governmental priorities, insurrections, riots, strikes or labor
troubles causing cessation, slowdown or interruption of work, fire, floods,
explosions, earthquakes, accidents, epidemics, quarantine restrictions,
mechanical failure, inability for any reason to obtain materials, accessories,
equipment or parts, delays in transportation or any act of God or the public
enemy.
(b) Buyer shall not be responsible nor be deemed to be in default
under this Agreement if it is unable to perform any obligation under any of the
Operative Documents, other than the obligations to maintain insurance under
Section 14 hereof and to timely pay the Initial Deposit, all Additional
- ----------
Installment, the Final Installment, and all Basic Rent and Supplemental Rent,
and such inability results from any cause occurring without the gross negligence
or willful misconduct of Buyer and beyond the reasonable control of Buyer
including war, warlike operations, acts of government or governmental
priorities, insurrections, riots, strikes or labor troubles causing cessation,
slowdown or interruption of work, fire, floods, explosions, earthquakes,
accidents, epidemics, quarantine restrictions, mechanical failure, inability for
any reason to obtain materials, accessories, equipment or parts, delays in
transportation or any act of God or the public enemy, so long as Buyer is
diligently attempting to cure any such default.
3.6 Fuel at Interim Lease Date. In addition to all other amounts due
--------------------------
and payable by Buyer to Seller on the Interim Lease Date, Buyer shall pay to
Seller an amount equal to the fair market value of all fuel on board the
Aircraft on such date.
SECTION 4. Conditions Precedent. Seller's obligation to lease the
--------------------
Equipment to Buyer for the Interim Lease Term is subject the satisfaction of
each of the following conditions on or prior to the Interim Lease Date:
4.1 Buyer's Conditions Precedent. Buyer's obligation to purchase the
----------------------------
Equipment on the Closing Date and to lease the Equipment for the Interim Lease
Term is subject the condition that on or prior to the Interim Lease Date,
Seller shall have permitted Buyer to conduct an inspection of the Aircraft,
which inspection shall be conducted at Buyer's sole cost and expense and may
include a physical walk around inspection, a video borescope inspection, maximum
power assurance runs of each Engine and APU, inspections of Aircraft records,
documents and manuals, and such other inspections as are customarily performed
by lessees of aircraft of the same make and model as the Aircraft;
4.2 Seller's Conditions Precedent. Seller's obligation to lease the
-----------------------------
Equipment for the Interim Lease Term is subject to the satisfaction of each of
the following conditions on or prior to the Interim Lease Date:
(a) Buyer shall have delivered to Seller the Technical Acceptance
Certificate not later than the 24/th/ day of October, 2000, and shall have
indicated thereon that Buyer has inspected the Aircraft and is satisfied that
the condition of the Aircraft is in the condition
12
required by Section 5 of this Agreement; provided, however, that if Buyer fails
---------
to deliver an Technical Acceptance Certificate to Seller on or before the 25/th/
day of October, 2000, Buyer shall be deemed to have accepted the Aircraft in
accordance with the terms of said Technical Acceptance Certificate;
(b) Buyer shall have delivered to Seller Buyer's credit and financial
information not later than the 24/th/ day of October, 2000, and Seller shall
have determined that Buyer has the financial ability to meet all of Buyer's
obligations arising under this Agreement;
(c) Buyer shall have delivered to Seller not later than the 24/th/
day of October, 2000, a certified resolution of Buyer's Board of Directors
ratifying this Agreement authorizing the appropriate officers of Buyer to
perform on behalf of Buyer each and every obligation of Buyer arising under this
Agreement;
(d) Seller shall have received approval of this Agreement from the
Investment Committee of EQUIS Financial Group, LLC, not later than two (2) days
after Seller's receipt of Buyer's credit and financial information in accordance
with Section 4.2(b), above; and
--------------
(e) Buyer shall have paid to Seller the Delivery Installment
specified in Section 2.3(a).
SECTION 5. Delivery Conditions. The Seller shall deliver the
-------------------
Equipment to Buyer on the Interim Lease Date in the following condition:
(a) in compliance with airworthiness directives and mandatory
requirements at the date returned to Seller by Seller's previous lessee;
(b) with a fresh "C" Check inspection based on the maintenance
program of Seller's previous lessee, except for the passage of time, and as
attributable to ferry and test flights;
(c) each Engine shall have not less than 3,000 cycles to removal of
the most life-limited part or known scheduled repair visit under the maintenance
program of Seller's previous lessee;
(d) in a high-density seating configuration; and
(e) except as provided in Section 5(a)-(e) above, in "AS IS," "WHERE
----------------
IS" and "WITH ALL FAULTS" condition.
SECTION 6. Return of Equipment.
-------------------
6.1 Return of Aircraft; Condition Upon Return. In the event a
------------------------------------------
Closing shall not occur for any reason whatsoever, including without limitation
an Event of Default of the Buyer (it being the intent of the parties that upon
execution and delivery of the Agreement Interim Lease Supplement, the Equipment
shall be accepted by Buyer for all purposes of this Agreement and a Closing
shall occur except in the case of an Event of Default by the Buyer), on
- -----
13
the date on which the leasing of the Equipment terminates under this Agreement
(the "Return Date"), Buyer will, at Buyer's sole expense, return the Equipment
to Seller by delivering the Equipment to Seller at Montreal International
Airport, Montreal, Quebec, Canada (the "Redelivery Location"). At the time of
such return, the parties shall execute the Redelivery Receipt, and the following
requirements and conditions shall apply:
(a) The Equipment shall have a valid Canadian Certificate of
Airworthiness for export to a country designated by Seller and be in such
condition (including, without limitation, maintenance condition) and with full
supporting documentation, as to be immediately registered and operated as a
passenger aircraft under the Applicable Law of the country so designated by
Seller.
(b) All systems shall be functioning within Airframe Manufacturer's
maintenance manual limits and the interior and exterior of the Aircraft shall be
clean by established carrier standards for immediate passenger use.
(c) The Airframe will be fully equipped with the Engines installed
thereon.
(d) All maintenance checks shall be current under the most recent
Maintenance Program for the Aircraft.
(e) All airworthiness directives and mandatory service bulletins
requiring compliance prior to the Return Date shall have been complied with
(without waiver, deferment, restriction or exception) or terminated (excluding
repetitive inspections).
(f) The Aircraft shall be painted all white, with all of Buyer's
insignia and markings removed therefrom.
(g) Such Airframe and Engines:
(i) shall be in airworthy condition eligible for
immediate operation in accordance with Federal Aviation Law and all systems
shall be functioning within the respective manufacturer's maintenance manual
limits;
(ii) shall be free and clear of all Liens (other than
Seller Liens) and rights of third parties under pooling, interchange, overhaul,
repair or other similar agreements or arrangements;
(iii) shall be in the same seating configuration and in as
good a condition as when delivered by Seller to Buyer, ordinary wear and tear
excepted, in accordance with established carrier standards;
(iv) shall not have been discriminated against whether by
reason of its leased status or otherwise in maintenance, use, operation or in
any other manner whatsoever, including, without limitation, as to the type of
maintenance program applicable to the Aircraft or as to compliance with
airworthiness directives;
14
(v) the Aircraft shall have zero (0) hours of operation
since the performance of the last phased "C" Check maintenance visit;
(vi) each Engine shall have a minimum remaining service
life of 3000 cycles remaining until removal of the most life-limited part or the
next scheduled overhaul or shop visit under the manufacturer's maintenance
program, whichever is more limiting;
(vii) in no event shall any Engine be "on watch" for any
reason requiring special or out of sequence inspection;
(viii) the Airframe and all non-engine Parts which are time
or cycle limited or calendar controlled shall be serviceable and have a minimum
remaining time or service life of 3000 hours (for time-limited items) or 3000
cycles (for cycle-limited items) or twelve (12) months (for calendar-controlled
Parts), as applicable;
(ix) the Airframe and each Engine shall have no open,
deferred or carryover items;
(x) each Engine shall meet all Engine Manufacturer's
specifications for engine condition applicable to such Engine and shall have
received favorable results of the borescope inspection required hereunder;
(xi) each Landing Gear shall have a minimum remaining
service life of 3000 cycles or 12 months, whichever is more limiting, remaining
until the next scheduled overhaul or shop visit under the manufacturer's
maintenance program; and
(i) All required placards per Buyer's maintenance and operations
specifications must be current, in place and legible.
(j) The Aircraft shall be free of major dents, and loose, pulled or
missing rivets in excess of the Airframe manufacturer's structural repair manual
limits. External patches shall be of a type consistent with industry standards
and in accordance with the Airframe Manufacturer's approved maintenance manuals
and structural repair manuals; and where applicable to Buyer, applicable
engineering repair drawings will be provided by Buyer. In addition, all hail
damage to the Aircraft shall have been permanently repaired consistent with
industry standards and in accordance with the Airframe Manufacturer's approved
Maintenance Manuals and Structural Repair Manuals.
(k) Ceiling, sidewalls and bulkhead panels shall be clean in
accordance with established commercial airline standards.
(l) The Aircraft shall be delivered with carpets, flooring, drapes,
tapestries, seat covers and seats and hard decor in their condition as on the
Interim Lease Date, normal wear and tear excepted and with the same number of
sets of galley carts and galley equipment as delivered on the Interim Lease
Date.
15
(m) During the "C" Check that will occur prior to the redelivery of
the Equipment to Seller, Seller shall be entitled to inspect the Equipment (the
"Redelivery Inspection"). The Redelivery Inspection will be solely at Buyer's
expense. In connection with the Redelivery Inspection, Seller may conduct any
inspection of the Aircraft that Buyer deems necessary in order to verify to
Seller's satisfaction that the condition of the Equipment complies with this
Agreement, which inspections may include, without limitation, a physical
inspection of the Equipment, a complete video borescope inspection of each
Engine, maximum power assurance runs of each Engine and APU, inspections of
Aircraft records, documents and manuals, and such other inspections as are
customarily performed in connection with a transfer of possession of an aircraft
of the same make and model as the Aircraft In addition, in connection with the
Redelivery Inspection, Buyer, at Buyer's sole cost and expense, shall cause a
demonstration flight of the Aircraft of not more than one (1) Flight Hour in
duration to be performed in accordance with Buyer's test flight procedures, and
shall permit two (2) observers selected by Seller to be on board the Aircraft
during such demonstration flight. Promptly upon completion of the Redelivery
Inspection, Buyer, at Buyer's own cost and expense, shall cause all
discrepancies identified during the Redelivery Inspection and demonstration
flight to be corrected and repaired.
(n) Buyer will pay for all costs in connection with back to birth
disk tracing for disks installed subsequent to the Interim Lease Date.
6.2 Manuals. Upon the return of the Equipment upon any termination
-------
of this Agreement in accordance with Section 6.1, Buyer shall deliver or cause
-----------
to be delivered to Seller all Data and any other logs, manuals, drawings and
data and inspection, maintenance, modification and overhaul records required to
be maintained during the Interim Lease Term (in each case in English) with
respect to the Equipment by the Transport Canada and FAA, including, without
limitation, all engine maintenance records generated by the Engine Maintenance
Provider under the Engine Maintenance Contract or by any other approved
maintenance provider that may from time to time perform maintenance services on
the Airframe or any Engine. In addition, Buyer shall re-assign to Seller, at
the expense of Buyer, the benefit of any manufacturer's warranty which has been
assigned to Buyer.
6.3 Extension of Term Due to Conditions Upon Return. Should
-----------------------------------------------
redelivery of the Equipment, and Data referred to in Section 6.2, from Buyer to
Seller be delayed (which delay shall be deemed to have occurred until Buyer
shall have complied with all of the return conditions set forth in this Section
-------
6) beyond the date required by the terms of this Agreement, all of Buyer's
- -
obligations under this Agreement will remain in full force and effect,
including, without limitation the obligation to pay Rent hereunder; provided,
however, that the amount of the Basic Rent due on a monthly basis during the
period of the delay shall be (i) equal to the Delivery Installment for any
period of delay resulting from a Force Majeure condition as defined in Section
3.5(b), or (ii) equal to 200% of the amount of the Delivery Installment for any
period of delay not resulting from a Force Majeure condition.
6.4 Non-Compliance. To the extent that at the return of the
--------------
Equipment, the condition of the Equipment, and Data referred to in Section 6.2,
-----------
do not comply with this Section 6, Buyer will, at its sole cost and expense,
---------
diligently proceed to rectify any defect or non-compliance as promptly as
practicable (and in any event within thirty (30) days) to Seller's
16
reasonable satisfaction; and the Interim Lease Term will be automatically
extended and this Agreement will remain in full force and effect and the Basic
Rent shall be as provided in Section 6.3 above.
-----------
6.5 Fuel at Return. Upon the return of the Aircraft in the condition
--------------
required by Section 6.1, and provided Buyer shall have paid all amounts due and
payable by Buyer to Seller under this Agreement, Seller shall pay to Buyer an
amount equal to the fair market value of all fuel on board the Aircraft on the
date of such return.
SECTION 7. Seller's Representations and Warranties.
---------------------------------------
7.1 Disclaimer of Representations. Except as specifically stated in
-----------------------------
this Aircraft Conditional Sale Agreement, SELLER SHALL BE DEEMED TO HAVE NOT
MADE OR GIVEN, AND SELLER EXPRESSLY DISCLAIMS, ANY REPRESENTATION, WARRANTY OR
COVENANT, EXPRESS OR IMPLIED, IN FACT OR IN LAW, AS TO THE AIRWORTHINESS,
DESCRIPTION, VALUE, QUALITY, DURABILITY, COMPLIANCE WITH SPECIFICATIONS,
CONDITION, DESIGN, OPERATION, DEFECTS, USE OF PATENTED TECHNOLOGY OR EQUIPMENT,
MERCHANTABILITY OR FITNESS FOR USE OR SUITABILITY OF THE EQUIPMENT OR ANY
COMPONENT OF THE EQUIPMENT FOR ANY PARTICULAR PURPOSE, OR ANY OTHER
REPRESENTATION OR WARRANTY WHATEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE
EQUIPMENT OR ANY COMPONENT OF THE EQUIPMENT. Seller shall have no
responsibility or liability to Buyer or any other Person with respect to any of
the following, unless resulting from the gross negligence or willful misconduct
of Seller: (a) any liability, loss or damage caused or alleged to be caused
directly or indirectly by the Equipment or any component of the Equipment or by
any inadequacy of the Equipment or deficiency or defect therein or any other
circumstances in connection with the Equipment or the Operative Documents; (b)
the use, operation or performance of the Equipment or any component of the
Equipment or any risks relating to the Equipment; (c) any interruption of
service, loss of business or anticipated profits or consequential damages; or
(d) the delivery, operation, servicing, maintenance, repair, improvement or
replacement of the Equipment or any component of the Equipment. Without
limitation of the foregoing, Buyer waives any claim which it may have against
Seller on account of any defect or alleged defect in the Equipment or any part
thereof, known or unknown, exterior or interior, apparent or concealed.
7.2 Seller's Representations, Warranties and Covenants. Seller
--------------------------------------------------
represents, warrants and covenants to Buyer as follows:
(a) On the Interim Lease Date, Seller shall have full power and legal
right to lease the Equipment to Buyer.
(b) On the Closing Date, Seller shall have full power and legal right
to sell the Equipment to Buyer.
(c) Seller's execution of the Bill of Sale and delivery thereof to
Buyer on the Closing Date shall convey to Buyer good title to the Equipment,
free and clear of all liens, claims
17
or encumbrances arising by, through, or under Seller, excepting liens, claims
and encumbrances rising by, through, or under Buyer.
(d) Seller is and will continue to be a national banking association
------
duly organized and validly existing under the laws of the United States. Seller
is and will continue to be duly qualified and authorized to do business and is
and will continue to be in good standing as a foreign corporation in each
jurisdiction where the character of its properties or the nature of its
activities (including the leasing and operation of the Equipment) make such
qualification necessary or where the failure to be qualified or authorized or to
be in good standing would have a material adverse impact on its business (taken
as a whole), financial condition or its ability to perform its obligations under
the Operative Documents.
(e) The execution, delivery and performance of the Operative
Documents have been duly authorized by all necessary corporate action on the
part of Seller. The execution, delivery and performance of the Operative
Documents, the consummation by Seller of any transactions contemplated by the
Operative Documents and the compliance by Seller with any of the terms or
provisions of the Operative Documents does not and will not (a) require any
approval of Seller's stockholders or any approval or consent of any trustee or
holders of any indebtedness or obligations of Seller or which has not been
obtained on or before the date hereof, (b) contravene any material Applicable
Law binding on or applicable to Seller, (c) contravene the corporate charter or
by-laws of Seller, or (d) contravene the provisions of, constitute a default
under or result in the breach of, or the creation of any Lien (other than a
Permitted Lien) upon any property of Seller under, any indenture, security
agreement, mortgage, chattel mortgage, deed of trust, conditional sales
contract, lease, loan or credit agreement, contract or other agreement or
instrument to which it may be a party or by which any of their properties may be
bound or affected.
(f) Each of the Operative Documents has been duly authorized by
Seller and, when executed and delivered by Seller, will constitute the legal,
valid and binding agreement of Seller enforceable against Seller in accordance
with its terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting enforcement of creditor's
rights generally.
(g) No suits or proceedings are pending and to the best knowledge of
-
Seller no suits are threatened against or affecting Seller in any court or
before any Governmental Body that might have a material adverse effect on the
financial condition or business of Seller or on the ability of Seller to perform
its obligations under the Operative Documents.
(h) None of the material documents furnished by or on behalf of
Seller to Buyer in connection with the transactions contemplated by the
Operative Documents contains any untrue statement of a material fact or omits to
state a material fact necessary to make the statements contained in this
Agreement not misleading. Seller knows of no fact that materially adversely
affects or, so far as Seller can now reasonably foresee, will materially
adversely affect the business, financial condition, operations or material
portion of the properties of Seller or the ability of Seller to perform its
obligations under the Operative Documents.
18
(i) Neither Seller's execution and delivery of the Operative
Documents nor Seller's consummation of any of the transactions contemplated on
its part by the Operative Documents requires the consent or approval of, the
giving of notice to, the registration with, or the recording or filing of any
documents with, or the taking of any other action in respect of any trustee or
holder of any debt of Seller.
7.3 Enforcement of Warranties. Seller agrees that if any right of
-------------------------
action arises against any Supplier of any part of the Equipment, unless and
until any Event of Default shall have occurred and be continuing, Buyer shall be
entitled, at its own expense, to exercise all rights of Seller against such
Supplier. Seller shall use all reasonable efforts to assist Buyer, at Buyer's
expense, in order to enable Buyer to assert any claim and prosecute any right of
action arising against any Supplier pursuant to this Section 7.3.
-----------
7.4 Assignment of Warranties. To the extent that any warranties from
------------------------
manufacturers, service providers, or suppliers are still in effect with respect
to the Aircraft (other than warranties which by their terms are unassignable),
and provided a Closing shall occur, such warranties and all rights thereunder
are hereby assigned to Buyer effective at the moment of Closing.
SECTION 8. Buyer's Representations, Warranties and Covenants. Buyer
-------------------------------------------------
represents, warrants and covenants as follows:
8.1 Corporate Existence and Qualification. Buyer is and will
-------------------------------------
continue to be a corporation duly organized and validly existing under the laws
of Canada. Buyer is and will continue to be duly qualified and authorized to do
business and is and will continue to be in good standing as a foreign
corporation in each jurisdiction where the character of its properties or the
nature of its activities (including the leasing and operation of the Equipment)
make such qualification necessary or where the failure to be qualified or
authorized or to be in good standing would have a material adverse impact on its
business (taken as a whole), financial condition or its ability to perform its
obligations under the Operative Documents.
8.2 Certificated Air Carrier. Buyer is and will remain a
------------------------
Certificated Air Carrier. Buyer holds and will continue to hold all material
licenses, certificates, permits and franchises from the Canadian Government
necessary to authorize Buyer to engage in international commercial air transport
and to carry on its business as a commercial air carrier of passengers and
cargo.
8.3 Corporate Authority. Buyer has and will continue to have the
-------------------
corporate power and authority to carry on its business as currently conducted
and to enter into and perform its obligations under the Operative Documents.
8.4 Authorization and Non-contravention. The execution, delivery and
-----------------------------------
performance of the Operative Documents have been duly authorized by all
necessary corporate action on the part of Buyer. The execution, delivery and
performance of the Operative Documents, the consummation by Buyer of any
transactions contemplated by the Operative Documents and the compliance by Buyer
with any of the terms or provisions of the Operative Documents does not and will
not (a) require any approval of Buyer's stockholders or any
19
approval or consent of any trustee or holders of any indebtedness or obligations
of Buyer or which has not been obtained on or before the date hereof, (b)
contravene any material Applicable Law binding on or applicable to Buyer, (c)
contravene the corporate charter or by-laws of Buyer, or (d) contravene the
provisions of, constitute a default under or result in the breach of, or the
creation of any Lien (other than a Permitted Lien) upon any property of Buyer
under, any indenture, security agreement, mortgage, chattel mortgage, deed of
trust, conditional sales contract, lease, loan or credit agreement, contract or
other agreement or instrument to which it may be a party or by which any of
their properties may be bound or affected.
8.5 Consents. Neither Buyer's execution and delivery of the
--------
Operative Documents nor Buyer's consummation of any of the transactions
contemplated on its part by the Operative Documents requires the consent or
approval of, the giving of notice to, the registration with or the taking of any
other action in respect of Transport Canada or the FAA or any other Governmental
Body, except for the actions referred to in Section 8.8, and normal periodic and
-----------
other reporting requirements and renewals and extensions of exemptions, in each
case only to the extent required to be given or obtained after the Interim Lease
Date.
8.6 Execution and Binding Effect. Each of the Operative Documents
----------------------------
has been duly authorized by Buyer and, when executed and delivered by Buyer,
will constitute the legal, valid and binding agreement of Buyer enforceable
against Buyer in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
enforcement of creditor's rights generally.
8.7 Litigation. No suits or proceedings are pending and to the best
----------
knowledge of Buyer no suits are threatened against or affecting Buyer in any
court or before any Governmental Body that might have a material adverse effect
on the financial condition or business of Buyer or on the ability of Buyer to
perform its obligations under the Operative Documents.
8.8 Filings. Except for the filing for recordation pursuant to the
-------
Canadian Aviation Law of the Application, this Agreement and the Agreement
Interim Lease Supplement or short forms thereof in form acceptable to Transport
Canada, the filing of precautionary financing statements or other statements
with respect to the interests created by this Agreement under the Applicable
Laws of the Provinces of Ontario and Quebec, the filing of the Confirmation with
Transport Canada, and the placing on the Airframe and the Engines of the plates
containing the legends referred to in Section 16, no further action, including
----------
any filing or recording of any document or financing statement, is necessary in
order to establish and perfect Seller's title to the Equipment as against Buyer
and any third parties in Canada.
8.9 Tax Returns and Payments. To the best of Buyer's knowledge,
------------------------
Buyer has filed or caused to be filed all tax returns that are required to be
filed by any Governmental Body, or has filed for an automatic extension or
obtained an extension in respect of such returns, which failure to so file or
obtain an extension would have a material adverse effect on the financial
condition or business of Buyer or Buyer's ability to perform its obligations
under the Operative Documents. Buyer has paid or caused to be paid all Taxes
shown to be due or payable on said returns or any assessment received by Buyer,
to the extent that such Taxes have become due and
20
payable, except to the extent payment was precluded or delayed by previous
bankruptcy action by Buyer.
8.10 Disclosure. None of the material documents furnished by or on
----------
behalf of Buyer to Seller in connection with the transactions contemplated by
the Operative Documents contains any untrue statement of a material fact or
omits to state a material fact necessary to make the statements contained in
this Agreement not misleading. Buyer knows of no fact that materially adversely
affects or, so far as Buyer can now reasonably foresee, will materially
adversely affect the business, financial condition, operations or material
portion of the properties of Buyer or the ability of Buyer to perform its
obligations under the Operative Documents.
8.11 Principal Place of Business. The principal place of business (or
---------------------------
its chief executive office, if there is more than one place of business) and
domocile of Buyer is located at 685 Stuart Graham Blvd. North, Dorval, Quebec,
Canada, H4Y 1E4, and the office where the Buyer keeps its records concerning the
Equipment and its interests in the Operative Documents is located at 685 Stuart
Graham Blvd. North, Dorval, Quebec, Canada, H4Y 1E4.
SECTION 9. Additional Covenants of Buyer.
-----------------------------
9.1 Financial and Other Information. Buyer shall furnish to Seller:
-------------------------------
(a) within 90 days after the end of each fiscal year of Buyer during
the Interim Lease Term, audited annual financial statements of Buyer reported on
by independent certified public accountants of recognized national standing
selected by Buyer;
(b) within 45 days after the end of each of the first three fiscal
quarter in each fiscal year during the Interim Lease Term, unaudited quarterly
financial statements of Buyer;
(c) concurrently with the financial statements furnished pursuant to
Sections 9.1(a) and (b), an Officer's Certificate certifying to the best
- -----------------------
knowledge, information and belief of such officer after due inquiry of the
officer signing such Officer's Certificate (i) that no Default or Event of
Default occurred during the period covered by such financial statements and no
Default or Event of Default exists on the date of such Officer's Certificate, or
(ii) if a Default or an Event of Default occurred or exists, stating that fact
and specifying the nature and period of existence of such Default or Event of
Default and the actions Buyer took or proposes to take with respect to such
Default or Event of Default;
(d) after the occurrence of any Default or Event of Default or any
other event that will materially adversely affect the business, financial
condition, operations or material portion of the properties of Buyer
simultaneously and to the extent delivered by Buyer to any other Seller or
creditor of Buyer, notice to Seller of such event;
(e) such information to which Buyer has or should have reasonable
access as may be required to enable Seller to file any reports required to be
filed by Seller with any Governmental Body because of Seller's interest in the
Equipment; and
(f) the reports required pursuant to Section 10.2(d); and
---------------
21
(g) with reasonable promptness, such other information and data with
respect to Buyer as Seller from time to time reasonably requests.
9.2 Liens. (a) Buyer shall not directly or indirectly create, incur,
-----
assume or suffer to exist any Lien on or with respect to the Equipment, any part
of the Equipment, title to the Equipment or any interest in the Operative
Documents except the respective rights of Seller and Buyer under the Operative
Documents, the rights of others under agreements or arrangements to the extent
expressly permitted by the terms of Section 11, and Permitted Liens. Buyer
----------
shall promptly at its own expense take such action as may be necessary to
discharge any such Lien other than Permitted Liens.
(b) To the extent any Liens of which Buyer has actual knowledge have
attached to the Equipment since the last Rent Payment Date, Buyer shall furnish
to Seller on the next Rent Payment Date (i) an Officer's Certificate setting
forth any Liens along with copies of any documentation or information received
by Buyer in connection with such Liens and (ii) any authorizations which may be
required to permit Seller to conduct an independent investigation and obtain
information with respect to such Liens.
9.3 Eurocontrol and Nav Canada. Buyer shall promptly pay when due
--------------------------
all overflying or other charges incurred by Buyer with respect to the Equipment
which are payable to Eurocontrol, Nav Canada, or any other airport or aviation
authorities and shall provide Seller with the Authorization Letter.
SECTION 10. Registration; Maintenance; Operation.
------------------------------------
10.1 Registration. As soon as reasonably practicable after the
------------
Interim Lease Date, Buyer, at Buyer's own cost and expense, shall cause the
Aircraft to be registered with Transport Canada and shall cause this Agreement
and the Agreement Interim Lease Supplement (or a short form aircraft lease
mutually acceptable to the parties in lieu of this Agreement and the Agreement
Interim Lease Supplement), and the Confirmation to be recorded with Transport
Canada, and Buyer shall thereafter maintain in full force and effect the
registration of the Aircraft and the recordation of this Agreement, the
Agreement Interim Lease Supplement, and the Confirmation. Buyer shall promptly
produce to Seller true copies of all applications made in relation to the
Equipment or the Operative Documents, and shall not cause the Airframe due to
Buyer's actions or inaction to be ineligible for registration under the Canadian
Aviation Law or cause this Agreement or the Agreement Interim Lease Supplement
to be ineligible for recordation under the Canadian Aviation Law. Seller shall
use reasonable efforts to cooperate with Buyer in connection with any action
required to be taken by Buyer pursuant to this Section 10.1.
------------
10.2 Maintenance.
-----------
(a) Buyer, at its own cost and expense, shall maintain, inspect,
service, repair, overhaul and test (or cause to be maintained, inspected,
serviced, repaired or overhauled) the Equipment and all Parts so as to keep the
Equipment and all Parts in good operational repair and condition and airworthy
in all respects and in compliance with the applicable type certificate
22
specifications and data sheets. To that end, Buyer shall cause the Aircraft to
be placed on Buyer's Maintenance Program within 30 days following the Interim
Lease Date, and shall maintain the Aircraft in accordance with Buyer's
Maintenance Program during the Interim Lease Term. In furtherance of the
foregoing, Buyer shall carry out all maintenance, overhauls, replacements and
repairs to the Equipment in accordance with the Maintenance Program, at FAA-
approved service centers and in the manner, to an extent and with a standard of
care not less than that employed by Buyer with respect to similar aircraft
operated by Buyer. In addition, Buyer shall maintain the Equipment in such
condition as may be necessary to enable a Canadian Certificate of Airworthiness
and all other applicable airworthiness certifications of the Equipment to be
maintained in good standing at all times under the Canadian Aviation Law, and
shall make or cause to be made all adjustments, repairs and replacements to the
Equipment necessary to maintain the Equipment in accordance with the Maintenance
Program.
(b) Buyer shall cause the Equipment to be maintained in accordance
with the appropriate Type Certificate Specification and Data Sheets. Buyer
shall comply with all U.S. and Canadian airworthiness directives, mandatory
notes or modifications or similar requirements affecting the Equipment,
compliance with which is required on or before the date that is thirty days
subsequent to the Closing Date. Buyer shall maintain the Equipment so as to
comply with the Canadian Aviation Law from time to time in force and applicable
to the Equipment, and will not permit the Equipment to be maintained in
violation of any Applicable Law, in violation of any rule, regulation or order
of any Governmental Body having jurisdiction or in violation of any
airworthiness certificate, license or registration relating to the Equipment
issued by any such Governmental Body. In the event there is a redelivery of the
Aircraft to Seller under Section 6 and any Applicable Law applicable to Buyer's
maintenance and operation of the Equipment, compliance with which is required on
or before the date that is thirty days subsequent to the redelivery date,
requires alteration of the Equipment. Buyer will modify the Equipment to
conform to such Applicable Law, and will maintain the Equipment in proper
operating condition under such Applicable Laws.
(c) Buyer shall maintain the Engines under an "on condition"
monitoring program in accordance with Buyer's normal practice with respect to
similar engines it operates. Notwithstanding the provisions of the preceding
sentence, Buyer shall be permitted to enter into a maintenance cost per hour
agreement or similar maintenance agreement for Engine Shop Visits and other
maintenance work on the Engines (the "Engine Maintenance Contract") with an
engine servicer consented to by Seller, which consent shall not be unreasonably
withheld (the "Engine Maintenance Provider") upon terms consented to by Seller,
which consent shall not be unreasonably withheld. Concurrent with entering into
the Engine Maintenance Contract, (i) Buyer shall enter into an agreement with
Seller assigning and granting to Seller a security interest in all of Buyer's
rights, title and interest in the Engine Maintenance Contract to secure the
obligations of Buyer under the Operative Documents, and (ii) Buyer shall cause
the Engine Maintenance Provider to consent to such assignment(s) and to confirm
to Seller that upon notice from Seller to the Engine Maintenance Provider that
Seller has terminated this Agreement pursuant to Section 18, the Engine
----------
Maintenance Provider will perform its obligations under the Engine Maintenance
Contract for the benefit of Seller. Buyer and the Engine Maintenance Provider
shall both agree that it will not amend or modify the terms of the Engine
Maintenance Contract without prior notice to Seller and, if the amendment or
modification would materially
23
adversely affect the interests of Seller, without the prior written consent of
Seller, which consent shall not be unreasonably withheld.
(d) Buyer shall provide the Seller with monthly reports with respect
to the operation of the Aircraft, including therein data regarding the number of
Flight Hours and cycles of operations conducted during the reporting period, the
number of Flight Hours and/or months remaining until overhaul for the Airframe,
Engines, and other major components, and such information concerning the
location, condition, use and operation of the Aircraft as Seller may reasonably
request. Buyer shall provide Seller maintenance schedules relating to the
Equipment from time to time as such schedules are adjusted or updated. Buyer
shall provide Seller reasonable prior notice of the date of, and any change in
the date of, any phased "C" Checks, in order to enable Seller, or its agents,
representatives or designees, to inspect the Aircraft, including, without
limitation, the Data, at the time and place any such phased "C" Checks occur and
to make a reasonable number of photocopies of any Data, at Seller's expense.
Seller's technical representatives shall have an unrestricted right to conduct
reasonable inspections of the equipment at any time prior to the Closing,
provided, however, that so long as no Event of Default shall have occurred and
be continuing, Seller shall provide reasonable notice of such inspection to
Buyer and Seller shall not unreasonably disrupt the commercial use of the
Aircraft. Buyer shall not materially alter the interval between scheduled
maintenance checks of the Aircraft prior to the Closing without the prior
approval of Seller
10.3 Fees and Charges. During the Interim Lease Term, Buyer shall pay
----------------
promptly when due any and all fees, charges, and taxes of any kind or nature
whatsoever that are in any manner connected with Buyer's possession, use,
maintenance, repair or operation of the Equipment.
10.4 Operation of the Equipment. Buyer shall operate the Equipment in
--------------------------
accordance with its Transport Canada approved operations specifications. Buyer
shall not operate the Equipment (i) in any zone which is declared a war zone by
the United States Government, the Canadian Government, or by any insurer or
reinsurer of the Equipment against hull or war risks, if any, or (ii) in any
zone in respect of which any insurer or reinsurer of the Equipment shall have
withdrawn any coverage for the Equipment. Buyer shall not use the Equipment nor
suffer it to be used in any manner or for any purpose excepted from any of the
insurance on the Equipment or for the purpose of carriage of goods of any
description excepted from such insurance, or do or permit to be done anything
which, or omit to do anything the omission of which, may invalidate any of such
insurance. Buyer shall not allow the Aircraft or any airframe on which an
Engine is installed to carry any goods which are declared contraband.
10.5 Maintenance of Certain Engines. An aircraft engine which is not
------------------------------
an Engine but which is installed on the Airframe shall be maintained in
accordance with Section 10.2 while it is installed on the Airframe.
------------
10.6 Data. Throughout the Interim Lease Term, Buyer shall maintain
----
accurate, complete and current Data, in English, with respect to all maintenance
carried out on the Equipment and all operations of the Equipment. Such Data
shall comply and be maintained in compliance with the Maintenance Program and
with all Applicable Laws applicable to Buyer's maintenance and operation of the
Equipment. Buyer shall permit Seller or any authorized
24
representative of Seller to examine such Data at any reasonable time upon
reasonable notice to Buyer.
SECTION 11. Possession.
----------
11.1 Transfers of Possession. Buyer shall not, without the prior
-----------------------
written consent of Seller, sublease or otherwise in any manner deliver, transfer
or relinquish possession or control of, or transfer any right, title or interest
in, any part of the Equipment (whether through pooling or interchange agreements
or otherwise) or install any Engine, or permit any Engine to be installed, on
any airframe other than the Airframe or permit any Part to be installed on an
airframe or engine other than the Airframe or an Engine except in accordance
with Section 12; provided, however, that so long as no Event of Default shall
----------
have occurred and be continuing, Buyer may, without the prior written consent of
Seller, subject to Section 10 and as long as all necessary approvals of the FAA
----------
and/or Transport Canada have been obtained:
(a) deliver temporary possession of the Airframe or any Engine to its
manufacturer for testing or other similar purposes, or to any organization for
testing, service, repair, maintenance or overhaul or, to the extent permitted by
Section 12, for alterations, modifications or additions;
- ----------
(b) enter into a wetlease for the Aircraft in the ordinary course of
Buyer's business under which the Buyer's personnel and crew shall have exclusive
possession, command, and operational control of the Aircraft at all times and
shall have exclusive responsibility for maintenance of the Aircraft;
(c) subject any Engine to normal pooling agreements customary to the
airline industry and entered into by Buyer in the ordinary course of its
business with any Certificated Air Carrier or, with the prior written consent of
the Seller (such consent not to be unreasonably withheld), any other air
carrier, provided that (i) any such agreement or arrangement does not
contemplate, permit, require or result in any transfer of title to or
registration of such Engine, and (ii) if Seller's title to such Engine shall 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 Buyer shall comply
with Section 13.2 in respect of such Event of Loss;
------------
(d) install an Engine on an airframe owned by Buyer free and clear of
all Liens, except for Permitted Liens, and provided such airframe is maintained
by Buyer under the Maintenance Program;
(e) install an Engine on an airframe leased to Buyer, purchased by
Buyer subject to a conditional sale agreement or owned by Buyer subject to a
security agreement; provided, however, that (i) such airframe is free and clear
of all Liens except the rights of the parties to the lease, conditional sale or
security agreement and Liens covered by clauses (ii) and (iii) of the definition
of Permitted Liens, (ii) prior to such installation, Seller shall have received
from the seller, conditional vendor or secured party of such airframe a written
agreement (which may be the lease, conditional sale agreement or security
agreement covering such airframe), whereby such seller, conditional vendor or
secured party expressly agrees that neither it nor its successors or assigns
will acquire or claim any title or interest in any Engine by reason of such
25
Engine being installed on such airframe at any time while such Engine is subject
to this Agreement or is owned by Seller, and (iii) such airframe is maintained
by Buyer under the Maintenance Program;
11.2 Terms of Transfers. With respect to any transfer pursuant to
------------------
Section 11.1:
- ------------
(a) The rights of any transferee that receives possession by reason
of a transfer permitted by Section 11.1 shall be subject and subordinate to all
------------
the terms of this Agreement, including Seller's right of repossession pursuant
to Section 18 and Seller's right to avoid such transferee's right to possession
----------
upon such repossession.
(b) Buyer shall remain primarily liable under this Agreement at all
times for the performance of all of the terms of this Agreement to the same
extent as if such transfer had not occurred, and no relinquishment of possession
of the Equipment shall in any way discharge or diminish any of Buyer's
obligations to Seller under this Agreement or any of Seller's rights under this
Agreement, and such rights shall continue as if such transfer had not occurred.
(c) The term of any pooling arrangement shall terminate upon any
return of the Equipment to Seller for any reason whatsoever.
(d) At least 10 Business Days before a pooling arrangement becomes
effective, Buyer shall give Seller written notice of its intent to subject the
Engines to such pooling arrangement, which notice shall include a copy of such
pooling arrangement.
(e) Any pooling arrangement permitted by Section 11.1 shall expressly
------------
provide (i) that such transferee will not transfer possession or control of the
Equipment to anyone other than Buyer or Seller, and (ii) for maintenance,
operation, insurance provisions that are substantially the same as the
provisions of this Agreement (whether by requiring such obligations to be
performed by the transferee, by Buyer or by both).
(f) Any transfer otherwise permitted by this Section 11 may be
----------
effected only if and so long as (i) the Equipment has a valid Canadian or U.S.
Certificate of Airworthiness, except as may be required for normal maintenance,
service, repair and overhaul, and (ii) no Default or Event of Default has
occurred and is continuing or will occur as a result of such transfer.
(g) Any pooling arrangement permitted by this Section 11.1 is hereby
------------
assigned by Buyer to Seller for purposes of securing Buyer's obligations under
the Operative Documents, and Buyer hereby grants to Seller a security interest
in all of Buyer's right, title and interest in any such pooling arrangement.
11.3 Cross-Waiver. Subject to the receipt of a reciprocal agreement
------------
as provided in Section 11.1(e), Seller hereby agrees for the benefit of Buyer
---------------
and any Seller, conditional vendor or secured party of any engine leased to
Buyer, purchased by Buyer pursuant to a conditional sale agreement or owned by
Buyer subject to a security agreement that neither Seller nor its assignees will
acquire or claim, as against Buyer, such Seller, conditional vendor or secured
party or any of their respective assignees any right, title or interest in any
engine owned
26
by such Seller under such lease, sold by such conditional vendor under such
conditional sale agreement or subject to a security interest in favor of such
secured party under such security agreement as a result of such engine being
installed on the Airframe.
11.4 Early Purchase Option. At any time during the Interim Lease
---------------------
Term, Buyer shall have the right and option to terminate the Interim Lease Term
and to immediately purchase the Equipment from Seller by paying the Purchase
Price in full.
SECTION 12. Replacement and Pooling of Parts; Modifications; Engine
-------------------------------------------------------
Exchange.
- --------
12.1 Replacement of Parts. Throughout the Interim Lease Term and
--------------------
until the return of the Equipment to Seller in accordance with the terms of this
Agreement, Buyer shall promptly replace all Parts that become worn out, lost,
stolen, destroyed, seized, confiscated, damaged beyond repair or permanently
rendered unfit for use for any reason from time to time. In addition, Buyer may
remove any Parts in the ordinary course of maintenance, service, repair,
overhaul or testing, whether or not worn out, lost, stolen, destroyed, seized,
confiscated, damaged beyond repair or permanently rendered unfit for use, but
Buyer shall replace such Parts as promptly as possible. All replacement Parts
shall be parts approved for use in accordance with the Maintenance Program,
shall be free and clear of all Liens and shall be in at least as good operating
condition as the Parts replaced assuming such replaced Parts were in the
condition and repair required to be maintained by the terms of this Agreement
immediately prior to such replacement. The replacement of Parts pursuant to
this Section 12.1 shall be made in accordance with Buyer's standard practices
------------
and procedures and shall not, over time, have a material adverse effect on the
value of the Airframe or any Engine. All Parts removed from the Airframe or any
Engine at any time shall remain the property of Seller and subject to this
Agreement, no matter where located, until such time as such Parts shall be
replaced by Parts that have been incorporated in, installed on or attached to
the Airframe or such Engine and that meet the requirements for replacement Parts
specified in this Section 12.1. Upon any replacement Part becoming incorporated
------------
in, installed on or attached to the Airframe or any Engine as provided in this
Section 12.1, immediately and automatically without further act (i) title to the
- ------------
replaced part shall vest in Buyer free and clear of all rights of Seller and any
Seller Liens, and such replaced part shall no longer be deemed a "Part" under
this Agreement, title to the replacement Part shall vest in Seller and become
subject to the Security Agreement, and (ii) such replacement Part shall become
subject to this Agreement and be deemed a "Part" of the Airframe or such Engine
for all purposes of this Agreement to the same extent as the part that was
replaced.
12.2 Pooling of Parts. So long as no Event of Default shall have
----------------
occurred and be continuing, any Part may be removed from an Airframe or Engine
and subjected by Buyer to a normal pooling arrangement customary in the airline
industry entered into in the ordinary course of Buyer's business with
Certificated Air Carriers or, with the prior written consent of the Seller (such
consent not to be unreasonably withheld), other air carriers; provided, however,
that the Part replacing such removed Part shall comply with the provisions of
Section 12.1 with respect to replacement Parts and shall be incorporated in,
- ------------
installed on or attached to the Airframe or an Engine in accordance with Section
-------
12.1 as promptly as practicable after the removal of such removed Part. In
- ----
addition, any replacement Part when incorporated in, installed on or attached to
the Airframe or an Engine in accordance with Section 12.1 may be owned by a
------------
27
Certificated Air Carrier subject to such a normal pooling arrangement; provided,
however, that Buyer as promptly thereafter as practicable either (a) causes
title to such replacement Part to vest in Seller in accordance with Section 12.1
------------
by Buyer acquiring title to such replacement Part for the benefit of, and
transferring such title to, Seller free and clear of all Liens other than
Permitted Liens, or (b) replaces such replacement Part by incorporating or
installing in or attaching to the Airframe or any Engine from which it was
removed a further replacement Part owned by Buyer free and clear of all Liens
except for Permitted Liens and by causing title to such replacement Part to vest
in Seller in accordance with Section 12.1. Immediately upon the vesting of
------------
title of any such replacement Part in Seller in accordance with the immediately
preceding sentence, without further act title to the replaced part shall
thereupon vest in Buyer, free and clear of all rights of Seller and any Seller
Liens, and the replaced part shall no longer be deemed a "Part" under this
Agreement.
12.3 Alterations, Modifications and Additions. (a) During the Interim
----------------------------------------
Lease Term Buyer shall, at Buyer's sole cost and expense, make or cause to be
made such alterations and modifications in and additions to the Equipment as may
be required from time to time to meet the standards of Transport Canada or the
FAA and any other Governmental Body having jurisdiction, such requirements to
include, without limitation, compliance with all applicable FAA and Transport
Canada airworthiness directives and mandatory service bulletins, the compliance
with which is required on or before the date one year after the end of the
Interim Lease Term. The Buyer shall document in the Data the method and date of
compliance with such requirements to the extent required for certification by
Transport Canada and the FAA (with no variance, extension, carry-overs or
deferrals).
(b) In addition to its rights under Section 12.1, Buyer may, at
------------
Buyer's sole cost and expense, and with Seller's prior written consent, make
such additional alterations and modifications in and additions to the Airframe
or any Engine as Buyer may deem desirable in the proper conduct of its business;
provided, however, that no such alteration, modification or addition shall
diminish the value, utility or remaining useful life of the Equipment (taken as
a whole) or impair the airworthiness and condition of the Equipment immediately
prior to such alteration, modification or addition, assuming such Equipment was
then of the value, utility and remaining useful life and in the airworthy and
other condition required to be maintained by the terms of this Agreement. The
alterations and modifications pursuant to this Section 12.3(b) shall not, over
---------------
time, have a material adverse effect on the value of the Airframe or any Engine.
(c) Title to all Parts incorporated in, installed on or attached or
added to the Airframe or any Engine as the result of any alteration,
modification or addition made as required or permitted by this Section 12.3
------------
shall, without further act, vest in Seller and become subject to this Agreement;
provided, however, that so long as no Default or Event of Default shall have
occurred and be continuing, at any time during the Interim Lease Term, Buyer may
remove any Part provided that (i) such Part is in addition to, and not in
replacement of or in substitution for, an original Part, (ii) such Part is not
required to be incorporated in, installed on or attached or added to the
Airframe or any Engine pursuant to the terms of Sections 12.1 or 12.3(a), and
------------------------
(iii) such Part can be removed from the Airframe or such Engine without
diminishing or impairing the value, utility, remaining useful life,
airworthiness or condition required to be maintained by the terms of this
Agreement that such Airframe or Engine would have had at such time had such
alteration, modification or addition not occurred. Upon the removal by Buyer of
any Part as
28
permitted by this Section 12.3, title to such removed Part shall, without
------------
further act, vest in Buyer and such removed part shall no longer be deemed a
"Part" of the Equipment. Any Part not recovered by Buyer as provided above
before the return to Seller of the Airframe or Engine in which such Part is
incorporated or installed or to which such Part is attached shall remain the
property of Seller and subject to this Agreement.
SECTION 13. Loss.
----
13.1 Event of Loss With Respect to the Airframe. If an Event of Loss
------------------------------------------
occurs with respect to the Airframe, Buyer shall immediately give Seller written
notice of such Event of Loss and Buyer shall, not later than the earlier of (a)
the 60th day following the occurrence of such Event of Loss, or (b) the date of
receipt of insurance proceeds in respect of such occurrence, pay to Seller the
Stipulated Loss Value. Upon payment in full of the Stipulated Loss Value,
together with all Basic Rent payable on or before the last Rent Payment Date on
or prior to the date of such Stipulated Loss Value payment and all Supplemental
Rent due and payable on or before the date of such Stipulated Loss Value
payment, (i) the obligation of Buyer to pay Basic Rent on any succeeding Rent
Payment Date shall terminate, (ii) the Interim Lease Term shall end, and (iii)
Seller shall transfer to Buyer all Seller's right, title and interest, if any,
in and to the Equipment "as is, where is and with all faults" and without
recourse or warranty, except a warranty that the Equipment is free of any Seller
Liens.
13.2 Event of Loss With Respect to an Engine. If an Event of Loss
---------------------------------------
occurs with respect to an Engine under circumstances in which there has not
occurred an Event of Loss with respect to the Airframe, Buyer shall immediately
give Seller prompt written notice of such Event of Loss, and not later than 120
days after the occurrence of the Event of Loss shall convey or cause to be
conveyed to Seller, as replacement for the Engine with respect to which such
Event of Loss occurred, title to another engine of the same or an improved make
and model and suitable for installation and use on the Airframe (any such
engine, a "Replacement Engine"), free and clear of all Liens except Permitted
Liens. As a condition to such replacement, the Replacement Engine shall have a
value and utility at least equal to, and shall be in as good an operating
condition as, the Engine, as the case may be, with respect to which such Event
of Loss occurred had immediately before such Event of Loss (assuming such Engine
had been properly maintained in accordance with the terms of this Agreement), as
reasonably determined by Seller on the basis, among other things, of Seller's
inspection of the records for the Replacement Engine. At the time of the
conveyance of the Replacement Engine to Seller, Buyer shall (a) execute and
deliver to Seller and duly file for recordation under Applicable Law a
supplement to this Agreement describing such Replacement Engine and subjecting
such Replacement Engine to this Agreement and such security documents, and (b)
cause to be delivered to Seller evidence reasonably satisfactory to Seller as to
the due compliance by Buyer with the insurance provisions of Section 14 with
----------
respect to such Replacement Engine. Upon compliance by Buyer with the foregoing
terms of this Section 13.2 within the 120-day period referred to above, Seller
------------
will transfer title to the Engine so replaced to Buyer "as is, where is and with
all faults" and without recourse or warranty except a warranty that such
replaced Engine is free of any Seller Liens, and Seller will execute and deliver
to Buyer a partial release, in form for recording under Applicable Law,
releasing such replaced Engine from this Agreement. Such Replacement Engine
shall thereupon constitute an "Engine", as the case may be) for all purposes of
this Agreement. No
29
Event of Loss with respect to an Engine under the circumstances contemplated by
the terms of this Section 13.2 shall result in any reduction in Rent.
------------
13.3 Application of Payments. Any payments received at any time by
-----------------------
Seller or Buyer from any Governmental Body, from any insurer under insurance
maintained by Buyer pursuant to this Agreement or from any other Person (other
than from an insurer under insurance maintained by Seller) with respect to an
Event of Loss will be applied as follows:
(a) if such payments are received with respect to an Event of Loss of
the Airframe, the amount of such payments up to the Stipulated Loss Value
required to be paid by Buyer pursuant to Section 13.1 and any other amounts
------------
payable to Seller under the Operative Documents (including without limitation,
all installments to the extent actually paid) shall be applied in reduction of
Buyer's obligation to pay such Stipulated Loss Value and other amounts if not
already paid to Seller by Buyer or, if already paid to Seller by Buyer, shall be
applied to reimburse Buyer for its payment of such Stipulated Loss Value, and
any balance of such payments shall be paid over to or retained by Buyer; and
(b) if such payments are received with respect to an Event of Loss of
an Engine without an Event of Loss of the Airframe, such payments shall be paid
at Seller's option (i) by Seller to Buyer to reimburse Buyer for its costs in
performing its replacement obligations pursuant to Section 13.2, or (ii)
------------
directly to the third-party maintenance facility performing the repairs to the
Engine that has suffered the Event of Loss, upon which in each case Buyer shall
immediately thereafter perform the terms of Section 13.2 with respect to the
------------
Event of Loss for which such payments are made.
13.4 Application of Payments During Default or Event of Default. Any
----------------------------------------------------------
amount referred to in this Section 13 that is paid or payable to or retainable
----------
by Buyer shall not be paid to or retained by Buyer if at the time of such
payment a Default or Event of Default shall have occurred and be continuing, but
shall be paid to and held by the Seller and may be applied against the
obligations of Buyer under this Agreement when and as due. At such time as no
Default or Event of Default shall be continuing, such amount shall be paid to
Buyer to the extent not previously applied in accordance with this Section 13.4.
------------
SECTION 14. Insurance.
---------
14.1 Insurance Requirements.
----------------------
(a) Comprehensive Airline Liability Coverage. At all times during
----------------------------------------
the Interim Lease Term and for a period of two (2) years after the Closing Date,
Buyer shall, at its own expense, maintain or cause to be maintained with respect
to the Equipment comprehensive airline liability (including, without limitation,
third-party and passenger, bodily injury, property damage, product liability,
cargo, mail, baggage (checked and unchecked), premises and hangar keepers'
liability, and contractual liability) insurance in accordance with AVN67B
(exclusive of any Airframe, Part and/or Engine manufacturer's product liability
insurance), (i) in an amount not less than the greater of (A) the amounts of
comprehensive airline liability insurance from time to time applicable to
aircraft owned or leased and operated by the Buyer of the same type or of any
other type having similar capacity and performance characteristics as the
Aircraft, and (B)
30
the minimum amount of comprehensive airline liability insurance commonly
maintained by U.S. and Canadian Certificated Air Carriers for aircraft of the
same type as the Aircraft, (ii) of the type and covering the same risks usually
carried by air carriers owning or operating similar aircraft and engines and
covering risks of the kind customarily insured against by such air carriers,
(iii) with insurers of recognized international reputation and responsibility in
the London, United States, or French insurance markets who are reasonably
acceptable to Seller, and (iv) that names the Indemnitees as additional insureds
and otherwise complies with the requirements set forth in, and is consistent
with the issuance of a valid certificate of insurance and a report of the
insurance broker.
(b) Insurance Against Expense or Damage to the Equipment. At all
----------------------------------------------------
times during the Interim Lease Term, Buyer shall, at its own expense, maintain
or cause to be maintained, with respect to the Equipment, all-risk aircraft hull
insurance covering the Equipment, all-risk property damage insurance covering
the Engines and Parts while temporarily removed from the Airframe, and all-risk
spares insurance in accordance with AVN67B (i) for an agreed value not less than
the Stipulated Loss Value in respect of all-risk hull insurance, (ii) of the
type and covering the same risks usually carried by air carriers owning or
operating similar aircraft and engines and covering risks of the kind
customarily insured against by such air carriers, (iii) confirming that the
insurers shall not be entitled to replace an Aircraft or Airframe upon the
occurrence of an Event of Loss with respect thereto, (iv) with insurers of
recognized international reputation and responsibility in the London, United
States, or French insurance markets who are reasonably acceptable to Seller,
and (v) that names Seller as the loss payee to the extent of the Stipulated Loss
Value less the Aggregate Purchase Price Paid, and Buyer as loss payee with
respect to amounts in excess of the Stipulated Loss Value less the Aggregate
Purchase Price Paid. Buyer agrees that it will not settle any claim with
respect to the insurances provided hereunder without the consent of Seller
(which consents shall not be unreasonably withheld).
(c) War-Risk, Hijacking and Allied Perils Insurance. At all times
-----------------------------------------------
during the Interim Lease Term, and, for liability coverage, Buyer shall, at its
own expense, maintain or cause to be maintained, with respect to the Equipment,
worldwide (subject to standard insurance market geographical limits) coverage of
war-risk, hijacking and allied perils insurance of the type and in substantially
the amounts carried by air carriers operating the same or comparable models of
aircraft in such areas (i) in no event in an amount less than (A) the amount
required by Section 14.1(a)(i) with respect to liability coverage and (B) the
------------------
Stipulated Loss Value with respect to property damage coverage, (ii) in any
event, covering the perils of (U) war, invasion, acts of foreign enemies,
hostilities (whether war be declared or not), civil war, rebellion, revolution,
insurrection, martial law, military or usurped power or attempts at usurpation
of power, (V) strikes, riots, civil commotions or labor disturbances, (W) any
act of one or more Persons, whether or not agents of a sovereign power, for
political or terrorist purposes and whether the loss or damage resulting
therefrom is accidental or intentional, (X) any malicious act or act of
sabotage, (Y) confiscation, nationalization, seizure, restraint, detention,
appropriation, requisition for title or use by or under the order of any
government (whether civil, military or de facto) or public or local authority,
and (Z) hijacking, or any unlawful seizure or wrongful exercise of control of
the aircraft or crew in flight (including any attempt at such seizure or
control) made by any Person or Persons on board the aircraft acting without the
consent of the insured, (iii) with insurers of recognized international
reputation and responsibility in the
31
London, United States, or French insurance markets who are reasonably acceptable
to Seller, and (iv) names Seller or its designee as loss payee. Buyer agrees
that it will not settle any claim with respect to the insurances provided
hereunder without the consents of Seller (which consent shall not be
unreasonably withheld).
(d) All required insurance (as specified in paragraphs (a), (b), and
(c) above), shall:
(i) in the case of the insurance required by Section
-------
14.1(a), name each Indemnitee as additional insureds for their respective rights
- -------
and interests, warranted, each as to itself only, no operational interest;
(ii) in the case of the insurance required by Section
-------
14.1(a), include a severability of interest clause which provides that the
- -------
insurance shall operate to give each insured the same protection as if there
were a separate policy issued to each assured;
(iii) in the case of the insurance required by Section
-------
14.1(a), contain a provision confirming that the policy is primary without right
- -------
of contribution and the liability of the insurers shall not be affected by any
other insurance of which any Indemnitee or Buyer have the benefit so as to
reduce the amount payable to the additional insureds under such policies;
(iv) in the case of the insurance required by Section
-------
14.1(b), contain a 50/50% clause per AVS 103 or its equivalent;
(v) shall provide that in respect of the respective
interests of each Indemnitee in such policies the insurance shall not be
invalidated or impaired by any action or inaction of Buyer or any other
Indemnitee and shall insure the respective interests of each Indemnitee, as they
appear, regardless of any breach or violation of any warranty, declaration or
condition contained in such policies by Buyer or by any other Person;
(vi) provide coverage denominated in United States
Dollars;
(vii) provide that the insurers shall hold harmless and
waive any rights of recourse and/or subrogation against each Indemnitee;
(viii) provide that an Indemnitee shall have no obligation
or responsibility for the payment of any premiums due (but reserve the right to
pay the same should any of them elect so to do) and that the insurers will not
exercise any right of set-off or counter-claim in respect of any premium due
against the respective interests of an Indemnitee;
(ix) provide that the insurances shall continue unaltered
for the benefit of each Indemnitee for at least thirty (30) days after written
notice by registered mail or telex of any cancellation, changes, event of
nonpayment of premium or installment thereof shall have been sent to Seller,
except in the case of war risks for which seven (7) days will be given, or in
the case of war between the five great powers or nuclear peril for which
termination is automatic;
32
(x) contain an initial term of at least twelve (12) months.
14.2 Insurance Reports.
-----------------
(a) On the Interim Lease Date and within 30 days prior to the renewal
date of any insurance during the Interim Lease Term, Buyer shall cause its
independent insurance brokers to furnish to Seller (i) a certificate of
insurance describing in reasonable detail the insurance carried on or with
respect to the Equipment, and (ii) a report stating that in the opinion of such
broker such insurance complies with the terms of this Section 14 and confirming
----------
that all premiums due in respect of such insurance have been paid.
(b) Buyer shall also cause its independent insurance brokers to
advise Seller in writing (i) promptly of any defaults in the payment of any
premium and of any other act or omission on the part of Buyer or of any event of
which they have knowledge that might invalidate or render unenforceable in whole
or in part any insurance on the Equipment, and (ii) of any expiration or
termination of such insurance at least 30 days prior to such expiration or
termination or if any insurer cancels or gives notice of cancellation of such
insurance. Buyer shall instruct its independent insurance brokers to hold any
binders (subject to the rights of the insurers), policies and cover notes issued
and any endorsements to the order of Seller. The reports and certifications to
be given under this Section 14.2 shall confirm that the insurance extends to any
------------
Engine or Part while removed from the Airframe or any Engine.
14.3 Additional Insurance. Nothing in this Agreement shall prohibit
--------------------
either Seller or Buyer from insuring the Equipment or their respective interests
in the Equipment or the Operative Documents at their respective expense in an
amount in excess of that required to be maintained by Buyer under this Section
-------
14. In the event Seller desires to insure its interests in the Equipment in an
- --
amount in excess of that required to be maintained by Buyer under this Section
-------
14, Buyer agrees that it shall, at Seller's request, use its reasonable efforts
- --
to provide for such excess amount on the insurance policies maintained by Buyer
pursuant to this Section 14 and Seller agrees in such case to promptly reimburse
----------
Buyer for any additional premiums charged by the insurers for providing
insurance in such excess amount.
SECTION 15. Inspections. Buyer shall permit Seller or its officers
-----------
or agents to inspect the Equipment, the Data and Buyer's other documents and
records relating to the Equipment at such reasonable times as Seller may request
in writing from time to time at least 15 calendar days before the date of such
inspection; provided, however, that (a) such inspection shall not unreasonably
interfere with Buyer's normal operation of the Equipment or its business, and
(b) upon the occurrence and continuation of an Event of Default Seller and its
officers and agents may inspect the Equipment at any time without such prior
request and regardless of any such interference that may result from such
inspection so long as such inspection is conducted in accordance with Applicable
Law. Seller shall have no duty to make any such inspection and shall not incur
any liability or obligation by reason of not making any such inspection.
SECTION 16. Insignia. Buyer agrees to maintain and affix to the
--------
upper sill of the left-hand forward entry door of the Airframe adjacent to the
Airframe manufacturer's plate, and to each Engine in a clearly visible place in
close proximity to the manufacturer's plate, a
33
fireproof identification plate of a reasonable size bearing the inscription
"THIS [AIRFRAME/ENGINE] IS THE PROPERTY OF FIRST SECURITY BANK, N.A., NOT IN ITS
INDIVIDUAL CAPACITY BUT SOLELY AS TRUSTEE, AND HAS BEEN LEASED TO ROYAL AVIATION
INC." or such other inscription as Seller may reasonably request from time to
time. The foregoing identification plates shall be installed at Buyer's expense;
provided, however, that Seller shall bear the reasonable costs of subsequent
changes to the identification plates to the extent such changes are made at the
request of Seller. The plates shall also state the type, manufacturer's serial
number and, in the case of the Airframe, the current registration letters of the
Airframe. Buyer shall not place or permit to be placed in or on the Equipment or
any Part of the Equipment any other nameplates dealing with the rights of any
Person other than Seller, but Buyer may cause the Airframe to be lettered in an
appropriate manner for identification of the operational interests of Buyer.
SECTION 17. Events of Default. Each of the following events (whether
-----------------
any such event shall be voluntary or involuntary or come about or be effected by
operation of law or pursuant to or in compliance with any judgment, decree,
order, rule or regulation of any Governmental Body) shall constitute an "Event
of Default."
(a) Buyer shall fail to pay in full any Basic Rent, Delivery
Installment, Additional Installment, Final Installment, Supplemental Rent, or
Stipulated Loss Value on the date due in the manner and at the place required by
the Operative Documents; or
(b) Buyer shall fail to pay in full any other payment required by the
terms of this Agreement whenever the same shall become due in the manner and at
the place required by the Operative Documents, and such failure shall continue
for two (2) Business Days after written notice of such failure is given by
Seller to Buyer; or
(c) Buyer shall fail to carry and maintain insurance on or with
respect to the Equipment in accordance with the provisions of Section 14, or
----------
Buyer shall operate the Equipment at a time when, or at a place in which, any of
the insurance required by Section 14 shall not be in effect (provided that if
----------
the location of the Equipment is removed from the scope of its insurance
coverage after its arrival at such location, or if the Equipment becomes located
in an area that is outside the scope of its insurance coverage as a sole result
of an act beyond Buyer's reasonable control, operating the Equipment for the
purpose of removing it to a location that is within the scope of its insurance
coverage shall not be deemed an Event of Default), so long as Buyer is
diligently attempting to cure any such default; or
(d) Buyer shall deliver, transfer or relinquish possession or control
of, transfer any right, title or interest in or permit any such delivery,
transfer or relinquishing of the Equipment except as permitted by the Operative
Documents, or Buyer shall assign any rights, obligations or interests in the
Operative Documents except as permitted by the Operative Documents; or
(e) Buyer shall fail to perform or observe any other covenant,
condition or agreement to be performed or observed by it under any Operative
Document and such failure shall continue unremedied for a period of 30 days
after written notice of such failure is given by Seller to Buyer; or
(f) any representation or warranty made by Buyer in any Operative
Document or in any document or certificate furnished by Buyer in connection with
the Operative Documents shall have been incorrect in any material respect; or
(g) Buyer shall default in any covenant or agreement relating to any
obligation of Buyer for borrowed money in excess of $250,000.00 or for the
deferred purchase price or the rental of property with a remaining balance (in
the case of rentals discounted to present value using a discount rate of 5%) in
excess of $250,000.00, and such failure or default shall continue after the
applicable grace period, if any, specified in the agreement or instrument
relating to such obligation or the maturity of such obligation has been
accelerated by the holders of such obligation or any Seller shall have, based
upon such a failure or default, terminated its lease or required the payment of
any termination, stipulated loss, liquidated damages or similar amount,
provided, however, that in any of the foregoing cases, an Event of Default shall
not occur so long as Buyer is diligently and in good faith (i) disputing such
matter or (ii) in cases other than a payment default, pursuing a resolution of
such matter with such holder or Seller prior to the declaration of a default or
acceleration by such holders or Sellers; or
(h) one or more final, unappealable judgments for the payment of
money in a cumulative amount in excess of $250,000.00 (or its equivalent in
Canadian or other foreign currency) shall be rendered against Buyer and shall
remain undischarged for a period of 30 days unless, within said 30-day period,
Buyer and the applicable judgment creditor enter into a settlement agreement
staying execution on such judgment and Buyer thereafter diligently performs its
obligations pursuant to such settlement agreement; or
(i) Buyer shall apply for or consent to the appointment of a
custodian, receiver, trustee, liquidator or similar officer for it or for all or
any substantial part of its property, make a general assignment for the benefit
of its creditors, admit in writing its inability to pay its debts generally as
they become due, generally not pay its debts as they become due, file a
voluntary petition in bankruptcy, or a voluntary petition or an answer seeking
reorganization in a proceeding under any bankruptcy law or an answer admitting
the material allegations of a petition filed against Buyer in any such
proceeding, by voluntary petition, application or answer, consent or otherwise
institute any proceeding or seek relief under the provisions of any law relating
to bankruptcy, insolvency, reorganization, arrangement, readjustment of debts,
dissolution, liquidation or the like in respect of the reorganization or
winding-up of corporations, or providing for an agreement, composition,
extension or adjustment with its creditors, or take corporate action for the
purpose of any of the foregoing; or
(j) A petition against Buyer in a proceeding under bankruptcy,
insolvency, or other similar laws is filed and is not withdrawn or dismissed
within 60 days thereafter or an order, judgment or decree shall be entered by
any Governmental Body of competent jurisdiction appointing, without the
application or consent of Buyer, a custodian, receiver, trustee, liquidator,
sequestrator or similar officer for Buyer or for all or any substantial part of
its property, or any substantial part of the property of Buyer shall be
sequestered, and any such order, judgment or decree of appointment or
sequestration shall remain in force undismissed, undischarged, unstayed and
unvacated for a period of 60 days after its date of entry; or
35
(k) Buyer shall voluntarily suspend all of its commercial air carrier
operations, or the franchises, concessions, permits, rights or privileges
required for the conduct of the commercial air carrier business of Buyer shall
be revoked, canceled or otherwise terminated or the free and continued use and
exercise thereof curtailed or prevented; or
(l) Buyer shall cease to be a Certificated Air Carrier.
SECTION 18. Remedies.
--------
18.1 Seller Entitled to Exercise Remedies. Upon the occurrence of any
------------------------------------
Event of Default specified in Sections 17(i) or 17(j), this Agreement shall be
-----------------------
automatically deemed in default. Upon the occurrence of any other Event of
Default and while such Event of Default is continuing, Seller may at its option
by written notice to Buyer declare this Agreement to be in default. Any time
after this Agreement has become or been declared by Seller to be in default in
accordance with this paragraph and so long as Buyer has not remedied all
outstanding Events of Defaults, Seller may exercise one or more of the following
remedies with respect to all or any part of the Equipment as Seller elects in
its sole discretion without making any demand, giving any notice or taking any
other action, all to the extent permitted by and subject to compliance with any
mandatory requirements of Applicable Law.
18.2 Remedies of Seller. (a) Upon the occurrence and during the
------------------
continuance of an Event of Default, Seller shall be entitled to cause Buyer to
return all or such part of the Equipment as Seller may demand in writing to
Buyer, and Buyer shall at its sole cost and expense return promptly such
Equipment to Seller or at its order at Montreal International Airport, Montreal,
Quebec, Canada. Upon such demand, (i) Buyer shall return the Equipment as
demanded in the manner and condition required by, and otherwise in accordance
with, all of the provisions of Section 6 as if such Equipment were being
---------
returned at the end of the Interim Lease Term, and (ii) all Aggregate Purchase
Price Paid shall be be retained by Seller and deemed Supplemental Rent
attributable to Buyer's use of the Equipment during that portion of the Interim
Lease Period preceding the Event of Default. In addition, Seller or any agent
or representative of Seller shall be entitled by reasonable means to enter upon
any premises where all or any part of the Equipment is located and take
immediate possession of and remove the same (together with any engine which is
not an Engine but which is installed on the Airframe, subject to all rights of
any third party owner of such engine), by summary proceedings or otherwise, all
without liability accruing to Seller or Seller's agent or representative by
reason of such entry or taking of possession, whether for the restoration of
damage to property caused in the reasonable execution of such entry or taking of
possession or otherwise.
(b) Upon the occurrence and during the continuance of an Event of
Default, Seller shall be entitled, as it shall determine in its sole discretion
as owner and repossessing Seller of the Equipment, (i) to sell, lease or
otherwise dispose of any part of the Equipment at public or private sale, (ii)
to use, operate, hold or keep idle any part of the Equipment, or (iii) to take
any other action to which an owner of property is entitled, in each case free
and clear of any rights of Buyer and without any obligation to remove any Seller
Liens resulting from the affirmative actions of Seller during the period this
Agreement is or is deemed to be in default.
36
(c) Upon the occurrence and during the continuance of an Event of
Default, whether or not Seller shall have exercised or shall thereafter at any
time exercise any of its rights under Section 18.2(a) or (b) above with respect
----------------------
to any item of the Equipment, Seller shall be entitled, by written notice to
Buyer specifying a payment date which shall be a Rent Payment Date not earlier
than 10 days after the date of such notice, to demand that Buyer pay to Seller,
and Buyer shall pay to Seller, on the payment date specified in such notice, as
liquidated damages for loss of a bargain and not as a penalty (in lieu of the
Basic Rent for the Equipment due for periods commencing after the payment date
specified in such notice), an amount equal to the sum of any unpaid Basic Rent
and Additional Installments for the Equipment due prior to the payment date
specified in such notice
(d) Upon the occurrence and during the continuance of an Event of
Default, Seller may terminate this Agreement as to the Equipment, may retain all
Aggregate Purchase Price Paid as deemed Supplemental Rent attributable to
Buyer's use of the Equipment during that portion of the Interim Lease Period
preceding the Event of Default, may exercise any other right or remedy available
to it under Applicable Law, and may proceed by appropriate court action to
enforce the terms of this Agreement or to recover damages for the breach of this
Agreement.
18.3 Monetary Damages Payable by Buyer. Buyer shall be liable except
---------------------------------
as provided above for all unpaid Basic Rent and Supplemental Rent due before,
after or during the exercise of any of the Seller's remedies under Section 18.2
------------
and Applicable Law until payment of the amounts due pursuant to Sections
--------
18.2(c), and for all actual, reasonable legal fees and other costs and expenses
- -------
incurred by reason of the occurrence of any Event of Default or the exercise of
Seller's remedies under Section 18.2 and Applicable Law, including all costs and
------------
expenses incurred in connection with the return of the Equipment in accordance
with the terms of Section 6 or the placing of the Equipment in the condition
---------
required by Section 6.
---------
18.4 Remedies Not Exclusive. No remedy referred to in this Section 18
---------------------- ----------
is intended to be exclusive, and each such remedy shall be cumulative and in
addition to any other remedy referred to above or otherwise available to Seller
at law or in equity. The complete or partial exercise by Seller of any one or
more of such remedies shall not preclude the simultaneous or later exercise by
Seller of any other remedies. No express or implied waiver by Seller of any
Event of Default shall in any way constitute a waiver of any future or
subsequent Event of Default. To the extent permitted by Applicable Law, Buyer
waives any rights now or hereafter conferred by Applicable Law that might
require Seller to sell, lease or otherwise use the Equipment or any part of the
Equipment in mitigation of Seller's damages as set forth in this Section 18 or
----------
that might otherwise limit or modify any of Seller's rights or remedies under
this Section 18. No notice to or demand on Buyer in any case shall entitle
----------
Buyer to any other or further notice or demand in similar or other
circumstances, or constitute a waiver of the right of Seller to any other or
further action in any circumstances without notice or demand.
SECTION 19. Seller's Right to Perform for Buyer. If Buyer fails to
-----------------------------------
perform or comply in any material respect with any of its agreements contained
in this Agreement, Seller may perform or comply with such agreement and the
amount of the costs and expenses incurred in connection with the performance of
or compliance with such agreement, together with interest on such amounts at the
Overdue Rate, shall be payable by Buyer on demand as Supplemental Rent.
37
SECTION 20. Further Assurances. Buyer shall promptly and duly
------------------
execute and deliver to Seller such further documents and assurances and take
such further action as Seller may from time to time reasonably request in order
to carry out more effectively the intent and purpose of this Agreement and to
establish and protect Seller's title to the Equipment, the interests of any
subsequent transferee and Seller's rights (provided that Seller shall reimburse
Buyer for reasonable costs actually incurred by Buyer in executing and
delivering any documents and assurances necessary to protect the interests of
any subsequent transferee and Seller's rights), and remedies created or intended
to be created under the Operative Documents.
SECTION 21. Buyer's Indemnities.
-------------------
21.1 General Tax Indemnity.
---------------------
(a) Buyer agrees to pay and to indemnify and hold harmless the
Indemnitees from and against all Taxes against or upon Seller, Buyer, the
Equipment, or any part thereof, including, without limitation, all withholding
Taxes in accordance with Section 25, those Taxes arising out of the purchase,
----------
sale, lease, use, ownership, delivery, warehousing, transportation, subleasing,
possession, operation, repair, maintenance, or overhaul of the Equipment, or
arising out of this Agreement, the Operative Documents, or the settlement of any
insurance claim, the return or other disposition of the Equipment pursuant to
this Agreement, or the payment of any Rent, receipts or earnings paid or payable
to Seller or arising from the operation of the Equipment; provided, however,
that Buyer shall not be responsible to indemnify or hold harmless any Indemnitee
for:
(i) any Taxes based solely on, or measured by, or
imposed on, the net income, capital gains, profits, or alternative minimum taxes
of any Indemnitee or Taxes in lieu thereof (including, without limitation,
minimum taxes and taxes on, or measured by, an item of tax preference);
(ii) any Taxes (other than sales, use, or similar taxes)
based on gross receipts unless such Taxes are imposed solely as a result of
Buyer's acquisition, use or operation of the Equipment in the taxing
jurisdiction; or
(iii) any Taxes imposed as a result of any Indemnitee's
gross negligence, or willful misconduct, or as a result of Seller's breach of
its obligations under this Agreement.
(b) Buyer shall pay all Taxes for which it assumes liability under
this Section 21.1 when such Taxes are due and shall indemnify each Indemnitee to
------------
the extent required by this Section 21.1 within the earlier of (i) 30 days after
------------
receipt of written request by such Indemnitee; or (ii) 5 days before such Taxes
are due to the taxing authority. Unless Seller otherwise notifies Buyer in
writing with respect to a particular Tax, Buyer shall, to the extent permitted
by Applicable Law, at Buyer's cost and expense, make any returns, statements and
reports required with respect to Taxes for which an indemnification obligation
arises under this Section 21.1. Any such return, statement, or report shall be
------------
made so as to show the interest of Seller as owner of the Equipment, and Buyer
shall, whenever reasonably requested by Seller,
38
submit to Seller copies of returns, statements and reports made pursuant to this
Section 21.1. Seller and Indemnitees agree, for purposes of this Section 21.1
- ------------- ------------
(b), to furnish Buyer with such related information known to Seller and
- ---
Indemnitees, as Buyer may reasonably request, for purposes of preparing any
returns, statements and reports.
(c) If any Indemnitee receives a written notification from a taxing
authority of proposed Taxes for which an amount is or may become payable by
Buyer in accordance with this Section 21.1, such Indemnitee shall notify Buyer
------------
of such Taxes and shall furnish Buyer with such related information known to
such Indemnitee as Buyer may reasonably request; if possible, such notice shall
be furnished to Buyer so that Buyer has sufficient time to determine the
propriety of the proposed Taxes. If (i) within 45 days after Buyer receives
such notice from such Indemnitee, Buyer delivers to such Indemnitee a written
request that such Indemnitee contest such Taxes, and (ii) Buyer delivers to such
Indemnitee an indemnity, in form and substance reasonably satisfactory to such
Indemnitee, for such Taxes (if and to the extent that such Indemnitee shall not
prevail as to all matters involved in such contest) and for any liability, loss,
or expense that such Indemnitee may reasonably incur as a result of contesting
such Taxes, including, without limitation, all costs, expenses, losses, legal
and accounting fees and disbursements, bonding fees, penalties, and interest
paid to third parties, then Buyer may contest in the name of such Indemnitee,
or, if possible, in its own name the validity, applicability, or amount of such
Taxes, but only if such contest shall not, in such Indemnitee's reasonable
opinion, materially and adversely affect the right, title, and interest of
Seller. If an Indemnitee obtains a refund of all or any part of Taxes, to the
extent such amount has been paid to such Indemnitee pursuant to this Section
-------
21.1, Buyer shall promptly be paid the amount of such refund and, if in addition
- ----
to such refund an Indemnitee receives an amount representing interest on such
refund, Buyer shall promptly be paid that proportion of such interest that is
fairly attributable to Taxes paid by Buyer prior to the receipt of such refund,
but such amounts shall not be payable to Buyer if an Event of Default shall have
occurred and be continuing.
(d) The indemnities and obligations of Buyer provided for under this
Section 21.1 shall survive the Closing or expiration of the Interim Lease Term
- ------------
or any other termination, in whole or in part, of this Agreement until such time
as the applicable statute of limitations for such Taxes expires.
21.2 General Indemnity. Buyer assumes liability for, indemnifies each
-----------------
Indemnitee against and shall protect, save and keep harmless each Indemnitee
from, on an after-tax basis, any and all liabilities, obligations, losses,
damages, penalties, claims (including claims for liability in tort, strict or
otherwise), actions, suits, costs, expenses and disbursements (including,
without limitation, reasonable legal fees and disbursements) of whatsoever kind
and nature (collectively, "Liabilities"), imposed on, incurred by or asserted
against any Indemnitee in any way relating to or arising out of (a) Buyer's
obligations pursuant to any Operative Document, payments made pursuant to any
Operative Document, any other transaction contemplated by any Operative
Documents or the exercise of remedies under any Operative Document, (b) any non-
compliance by the Buyer with the terms of any Operative Document, or (c) the
delivery, non-delivery, warehousing, storage, transportation, removal, sale,
purchase, lease, possession, use, operation, sublease, condition, maintenance,
or return or other disposition pursuant to this Agreement of the Equipment or
any part thereof or any accident in connection with any Equipment on or after
the date of this Agreement (including without limitation latent or other
39
defects, whether or not discoverable, and claims for patent, trademark or
copyright infringement), but the foregoing indemnity shall not extend to any
Liabilities of any Indemnitee (i) resulting from the willful misconduct or gross
negligence of such Indemnitee, or (ii) to the extent solely attributable to acts
or events not attributable to Buyer that occur prior to the Effective Date of
this Agreement or after possession of the Equipment has been redelivered to
Seller in accordance with all the terms of this Agreement and Buyer has fully
complied with all provisions of the Agreement with respect to such redelivery.
21.3 Survival of Indemnities; Net Obligations. The indemnities and
----------------------------------------
obligations of Buyer provided for under Section 21 shall survive the expiration
----------
of the Interim Lease Term or any other termination, in whole or in part, of this
Agreement. Buyer shall pay all amounts due under Sections 21.1 and 21.2 free of
----------------------
any Taxes (other than those Taxes for which Buyer is not liable under Section
-------
21.1) and shall indemnify each Indemnitee against any such Taxes imposed by
- ----
reason of any payment made by Buyer under Sections 21.1 and 21.2 so that the
----------------------
Indemnitee to whom or for whose benefit the payment is made shall receive an
amount which, net of any Taxes required to be paid by such Indemnitee in respect
of such payment, shall be equal to the amount of payment otherwise required
under this Agreement.
SECTION 22. Net Agreement; No Setoff or Counterclaim. THIS AGREEMENT
----------------------------------------
IS A CONDITIONAL SALES AGREEMENT, AND BUYER'S OBLIGATION TO PAY THE PURCHASE
PRICE AND ALL RENT, THE DELIVERY INSTALLMENT, ALL ADDITIONAL INSTALLMENTS, THE
FINAL INSTALLMENT, AND ANY OTHER SUMS PAYABLE HEREUNDER, SHALL BE ABSOLUTE AND
UNCONDITIONAL UNDER ANY AND ALL CIRCUMSTANCES AND ARE NOT SUBJECT TO ABATEMENT
FOR ANY REASON WHATSOEVER, including without limitation (i) any setoff,
counterclaim, recoupment, defense or other right (including any right of
reimbursement) which Buyer may have against Seller, any Supplier or any other
Person for any reason whatsoever, including any claim of Buyer against any of
the foregoing, whether under this Agreement or under any other document or
agreement, (ii) any defect in the title, airworthiness, specifications,
condition, design, operation, merchantability or fitness for use of, or any
damage to or loss or destruction of any of the Equipment or any Part, or any
interruption or cessation in the use or possession of the Equipment or any Part
by Buyer for any reason whatsoever, (iii) any insolvency, bankruptcy,
reorganization or similar proceedings by or against Seller, Buyer, or any other
Person, (iv) any failure by Seller to comply with any provision of this
Agreement or any other Operative Document, or any failure by any Supplier to
comply with any agreement, or (v) any other circumstance, happening or event,
whether or not similar to any of the foregoing, whether legal or equitable,
which might act as a total or partial discharge of Buyer's obligation to pay
Rent. Buyer hereby waives, to the extent permitted by Applicable Law, any and
all rights which it may now have or which at any time hereafter may be conferred
upon it, by statute or otherwise, to terminate, cancel, quit or surrender this
Agreement, except termination in accordance with the express provisions hereof.
If for any reason whatsoever this Agreement shall be terminated in whole or in
part by operation of law or otherwise except as specifically provided herein,
other than in connection with any insolvency, bankruptcy, reorganization or
similar proceedings by or against Seller, Buyer nonetheless agrees to pay to
Seller an amount equal to each Intial Installment, Additional Installment, and
Final Installment at the time such payment would have become due in accordance
with the terms hereof had this Agreement not been terminated in whole or in
part, and upon payment of all such installments, Seller shall transfer title to
the
40
Equipment to Buyer I accordance with the terms and conditions herein
contained. Each payment required hereunder to be made by Buyer shall be final
and net and Buyer shall not seek to recover all or any part of any such payment
from Seller for any reason whatsoever.
SECTION 23. Assignment.
----------
23.1 Binding on Assignees. The terms and provisions of this Agreement
--------------------
shall be valid and binding upon Seller and Buyer and their respective successors
and assigns and shall inure to the benefit of Seller, Buyer, and their
respective successors and permitted assigns.
23.2 No Assignment by Buyer. Buyer may not assign all or any portion
----------------------
of its rights and obligations under the Operative Documents without the prior
written consent of Seller, which consent shall not be unreasonably withheld or
delayed.
23.3 Permitted Transfers by Seller.
-----------------------------
(a) So long as the Equipment shall be leased to Buyer during the
Interim Lease Term, Seller reserves the right, without prior notice or consent
of Buyer, to sell, assign, convey or otherwise transfer any of its right, title
or interest in and to the Operative Documents or the Equipment to any Person
(the "Transferee"); provided that Buyer's rights and obligations under this
Agreement are not adversely affected, and further provided that on the date of
such transfer Seller and the Transferee enter into an agreement pursuant to
which the Transferee confirms that Transferee shall be deemed a party to this
Agreement and a party to the other Operative Documents and agrees to be bound by
all the terms of, and to undertake all of the obligations of the Seller
contained in, the Operative Documents.
(b) Upon any transfer by Seller in accordance with Section 23.3(a),
---------------
the Transferee shall become and be deemed to be the Seller for all purposes of
the Operative Documents, and each reference in the Operative Documents to the
Seller shall thereafter be deemed for all purposes to refer to the Transferee.
(c) Upon compliance by Seller and a Transferee with the terms and
conditions of Section 23.3(a), Buyer shall at the time of transfer, at the
---------------
specific written request of Seller and with Seller paying all of Buyer's out-of-
pocket costs and expenses:
(i) execute and deliver to Seller and to such Transferee
an agreement, in form and substance reasonably satisfactory to Seller, Buyer and
such Transferee, dated the date of such transfer, consenting to such transfer,
agreeing to pay all or such portion of the Basic Rent and all other payments
under the Operative Documents to such Transferee or its designee, as such
Transferee shall direct, and agreeing that such Transferee shall be entitled to
rely on all representations and warranties made by Buyer in any Operative
Document or in any certificate or document furnished by Buyer in connection with
the Operative Documents as though such Transferee was the original "Seller";
(ii) deliver to Seller and to such Transferee a
certificate, signed by a duly authorized officer of Buyer, dated the date of
such transfer, to the effect that no Event
41
of Default has occurred and is continuing or, if one is then continuing,
describing such Event of Default;
(iii) cause to be delivered to Seller and such Transferee
an insurance certificate and broker's report from Buyer's independent insurance
broker, both addressed to Seller and Transferee, evidencing the full compliance
by Buyer with the terms of Section 14 and listing the Seller and Transferee as
----------
additional insureds and, with the Transferee as sole loss payee up to the
Stipulated Loss Value upon an Event of Loss of the Equipment or Airframe;
(v) deliver to Seller and to such Transferee an opinion
of Buyer's counsel, addressed to Seller and such Transferee (1) to the effect
that the agreement referred to in Section 23.3(c)(i) has been duly authorized
------------------
and executed by Buyer and constitutes the legal, valid and binding obligation of
Buyer, enforceable against Buyer in accordance with its terms (subject to
customary exceptions), and (2) to the effect that such Transferee may rely on
the opinion delivered by such counsel in connection with the Equipment and the
Operative Documents on the Delivery Date with the same force and effect as if
such Transferee was an original addressee of such opinion when given; and
(vi) such other documents as Lessor or such Transferee may
reasonable request, so long as such documents do not adversely affect the rights
or obligations of Lessee under this Lease or otherwise adversely effect Lessee.
23.4 Tax-Free Exchange. Seller hereunder may elect to exchange all of
-----------------
Seller's right, title, and interest in the Aircraft on the Closing Date for
other property of like kind and qualifying use within the meaning of Section
1031 of the Internal Revenue Code of 1986, as amended, and the Treasury
Regulations promulgated thereunder. In furtherance of the foregoing, Seller
expressly reserves the rights (i) to assign its rights hereunder, but not its
obligations, to a Qualified Intermediary as provided in Treasury Regulation
1.1031(k)-1(g)(4) on or before the Closing Date, (ii) to transfer, or cause the
Qualified Intermediary to transfer, Qualified Indicia of Ownership (as such term
is defined in Internal Revenue Service Revenue Procedure 2000-37) of the
Aircraft to an Exchange Accommodation Titleholder (as such term is defined in
Internal Revenue Service Revenue Procedure 2000-37) on or before the Closing
Date, and/or (iii) to assign, or cause the Qualified Intermediary to assign, all
of Seller's rights and obligations arising under this Agreement to an Exchange
Accommodation Titleholder on or before the Closing Date. The requirements of
Section 23.3 may be applied to any transfer or assignment pursuant to this
- ------------
Section 23.4 if Seller deems appropriate.
- ------------
SECTION 24. Quiet Enjoyment. So long as no Event of Default shall
---------------
have occurred and be continuing, Seller shall not, except as expressly permitted
in this Agreement, do anything to disturb, or that would allow any other Person
to disturb, the quiet use, possession and enjoyment of the Equipment by Buyer in
accordance with the terms of this Agreement. Seller agrees to indemnify and to
hold harmless Buyer against and from any liabilities, losses, costs or expenses
incurred by Buyer arising out of Seller's failure to comply with the foregoing
covenant, but Seller shall not in any event be liable for any indirect, special,
punitive, incidental or consequential damages in connection with such failure.
42
SECTION 25. Gross-Up. The amount of any payment to be made by Buyer
--------
to Seller hereunder, including, without limitation, any payments with respect to
the Purchase Price, the Delivery Installment, any Additional Installment, the
Final Installment, and any payment of Basic Rent and Supplemental Rent
(collectively "Payments"), shall be net to Seller of any and all Taxes for which
Buyer is or may be responsible under Section 21.1, including, without
------------
limitation, any Taxes the legal incidence of which is imposed on Seller to the
extent that Buyer has agreed pursuant to Section 21.1 of this Agreement to pay
------------
or to indemnify Seller against such Taxes (collectively "Buyer's Taxes"). In
furtherance of the foregoing, all Payments shall be made to Seller free and
clear of, and without deduction or withholding for or on account of, any such
Buyer's Taxes, and in the event Seller is required by any Applicable Law to
deduct or otherwise withhold any Buyer's Taxes from any Payments, the gross
amount of such Payments shall be increased as much as necessary, but no more
than necessary, to ensure that the net amount of such Payments payable to Seller
after deduction and/or withholding of all Buyer's Taxes equals the amount of
such Payment specified in Schedule I, and Buyer shall promptly pay to the
appropriate taxing authority the amount of Buyer's Taxes deducted or withheld
and shall send to Seller evidence of the payment of such Buyer's Taxes.
SECTION 26. Miscellaneous.
-------------
26.1 Survival. The representations, warranties, indemnities and
--------
agreements of Seller and Buyer provided for in this Agreement, and Seller's and
Buyer's obligations under any and all provisions of this Agreement, shall
survive the expiration or other termination of this Agreement and are expressly
made for the benefit of, and shall be enforceable by, Seller and its successors
and assigns and each Indemnitee in the case of Buyer's obligations and by Buyer
in the case of Seller's obligations.
26.2 Brokers. Seller and Buyer each represents and warrants to the
-------
other that it has retained no broker or finder with regard to this Agreement,
and each indemnifies the other from any liability for fees, commissions or other
claims made upon the other caused by the indemnifying party.
26.3 Expenses. Seller and Buyer will each assume its own costs,
--------
fees (including legal and documentation fees) and other expenses incurred in
connection with the preparation and execution of the documentation relating to
the transactions contemplated by this Agreement. Seller shall assume all costs,
fees and other expenses in connection with the deregistration of the Aircraft
with the FAA and the acquisition of a certificate of airworthiness for export to
Canada, including the fees and expenses of special FAA counsel. Buyer shall
assume all costs, fees and other expenses, including fees of special counsel in
Canada, incurred in connection with registering the Aircraft with Transport
Canada, and with the filing and recordation of this Agreement and the Agreement
Interim Lease Supplement with Transport Canada and under Applicable Law in the
Provinces of Ontario and Quebec on the Interim Lease Date. In addition, Buyer
shall assume, if any, all sales and use taxes or similar fees, costs or expenses
imposed based on the Delivery Location of the Equipment, and Buyer shall assume
all costs, fees and other expenses in connection with obtaining any other
orders, exemptions, approvals, permits and licenses from the FAA or any other
United States Governmental Body under Applicable Law in connection with the
Buyer's purchase, lease, use and possession of the Equipment, other than the
registering of the Aircraft under the Federal Aviation Law. Unless
43
expressly provided otherwise, Buyer shall perform its obligations and exercise
its rights under the Operative Documents at its sole cost and expense without
any obligation of Seller with respect to such costs and expenses.
26.4 Governing Law. This Agreement shall in all respects be governed
-------------
by and construed in accordance with the laws of the State of New York, without
regard to its conflicts of laws principles.
26.5 Consent to Jurisdiction. (a) Each of Seller and Buyer hereby
-----------------------
expressly submits to the exclusive jurisdiction of the state and federal courts
of the State of New York. Final judgment against Seller or Buyer in any such
suit shall be conclusive and may be enforced in any other jurisdiction by suit
on the judgment or as otherwise permitted by Applicable Law, a certified or true
copy of which shall be conclusive evidence of the facts and of the amount of any
indebtedness or liability of Seller or Buyer.
(b) Each of Seller and Buyer hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue in any suit, action or
proceeding brought in any court located in the State of New York and irrevocably
waives any claim that any such suit, action or proceeding brought in any such
court has been brought in an inconvenient forum.
26.6 Notices. All notices, requests, demands or other communications
--------
required under or given pursuant to the Operative Documents shall be in writing
unless otherwise expressly provided in the Operative Documents. Any notice,
request, demand or other communication permitted under the Operative Documents
shall become effective when delivered personally or by mail, or when transmitted
by telefax or telex, and shall be directed to the following address:
If to Seller: First Security Bank, N.A.
79 South Main Street
Salt Lake City, UT 84111-1901
Attention: Gregg Hawley
Telephone: (801) 246-5657
Telefax: (801) 246-5053
with a copy to: Fafinski Mark & Johnson, P.A.
6600 City West Parkway, Suite 300
Eden Prairie, Minnesota 55344
Attention: Robert R. Fafinski, Jr., Esq.
Telephone: (952) 995-9500
Telefax: (952) 995-9577
44
and a copy to: EQUIS Financial Group, LLC
88 Broad Street
Boston, MA 02110
Attention: Gail Ofgant
Telephone: (617) 854-5833
Telefax: (617) 695-0596
If to Buyer: Royal Aviation Inc.
685 Stuart Graham Blvd. North
Dorval, Quebec, Canada, H4Y 1E4
Attention: Michel Leblanc, President,
Chairman & Chief Executive Officer
Telephone: 514-828-8960
Telefax: 514-828-9090
with a copy to: Royal Aviation Inc.
685 Stuart Graham Blvd. North
Dorval, Quebec, Canada, H4Y 1E4
Attention: Brenda Nichols, Legal Counsel
Telephone: 514-828-8979
Telefax: 514-828-9090
26.7 Severability. Any provision of this Agreement that is
------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Agreement, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. To the extent
permitted by Applicable Law, Buyer waives any provision of Applicable Law that
renders any provision of the Operative Documents prohibited or unenforceable in
any respect.
26.8 Amendments. The terms and provisions of the Operative
----------
Documents may not be amended, waived, discharged or terminated orally. Any
amendment, waiver, discharge or termination shall require a written instrument
signed by the party against whom enforcement of the amendment, waiver, discharge
or termination is sought.
26.9 Interpretation. This Agreement constitutes an agreement of
--------------
lease, and nothing in this Agreement shall be construed as conveying to Buyer
any right, title or interest in the Equipment except as a Buyer only.
26.10 Descriptive Headings. The section and paragraph headings in
--------------------
this Agreement and the table of contents are for convenience of reference only
and do not modify, define, expand or limit any of the terms or provisions of
this Agreement. All references in this Agreement to numbered sections, unless
otherwise indicated, are to sections of this Agreement.
26.11 Counterparts. This Agreement may be executed by Seller and
------------
Buyer in separate counterparts, each of which when so executed and delivered
shall be an original, but all
45
counterparts shall together constitute but one and the same agreement; provided,
however, each counterpart shall be serially numbered and only Counterpart No. 1
of this Agreement shall constitute chattel paper under the UCC or similar
Applicable Law and no security interest in it or assignment of Seller's interest
in it may be created through the transfer and possession of any counterpart
other than Counterpart No. 1.
26.12 Entire Agreement. This Agreement is intended to be a complete
----------------
and exclusive statement of the terms of the agreement of the parties hereto, and
this Agreement supersedes any prior or contemporaneous agreements, whether oral
or in writing.
[SIGNATURE PAGE FOLLOWS]
46
IN WITNESS WHEREOF, Seller and Buyer have each caused this Aircraft
Conditional Sale Agreement to be duly executed and delivered as of the day and
year first above written.
Seller: First Security Bank, NA, not in its individual capacity
but solely as trustee under that certain Trust
Agreement No. III dated as of December 30, 1991, as
amended.
By: ____________________________
Name: __________________________
Title: _________________________
Buyer: Royal Aviation Inc., d/b/a/ Royal Airlines
By: ____________________________
Name: __________________________
Title: _________________________
47
Exhibit A - TECHNICAL ACCEPTANCE CERTIFICATE
This TECHNICAL ACCEPTANCE CERTIFICATE, dated as of October 24, 2000,
is between First Security Bank, N.A., a national banking association, not in its
individual capacity but solely as trustee under that certain Trust Agreement No.
III dated as of December 30, 1991, as amended ("Seller"), and Royal Aviation
Inc., d/b/a/ Royal Airlines ("Buyer).
WHEREAS, Seller and Buyer have entered into the Aircraft Conditional
Sale Agreement, dated as of the 24/th/ day of October, 2000 (the "Agreement"),
for the sale by Seller and the purchase by Buyer of that certain Boeing B737-
200A airframe bearing manufacturer's serial number 21721, together with those
two (2) Pratt & Witney JT8D-9A engines bearing Manufacturer's Serial Numbers
707432 & 687834, and all Data and Parts (as defined in the Agreement) installed
thereon, attached thereto, incorporated therein, and associated therewith (all
of the foregoing collectively the "Equipment");
WHEREAS, the Agreement provides that until such time as consummation
of the sale of the Equipment shall occur, Seller shall lease the Equipment to
Buyer and Buyer shall lease the Equipment from Seller; and
WHEREAS, the Agreement provides for the inspection of the Equipment by
Buyer and the execution and delivery of this Technical Inspection Certificate
prior to commencement.
NOW THEREFORE, in consideration of the premises and other good and
sufficient consideration, Seller and Buyer hereby agree as follows:
1. Capitalized terms used but not defined in this Delivery Receipt have
the meanings defined for such terms in the Agreement.
2. Buyer represents that it has inspected the Equipment and found the
Equipment to be satisfactory and in the condition under Section 5 of the
---------
Agreement, and is hereby accepted in accordance with the terms thereof.
[SIGNATURE PAGE FOLLOWS]
48
IN WITNESS WHEREOF, Seller and Buyer have duly executed and delivered
this Technical Acceptance Certificate on the date first written above.
Seller: First Security Bank, NA, not in its individual capacity
but solely as trustee under that certain Trust
Agreement No. III dated as of December 30, 1991, as
amended.
By: ____________________________
Name: __________________________
Title: _________________________
Buyer: Royal Aviation Inc., d/b/a/ Royal Airlines
By: ____________________________
Name: __________________________
Title: _________________________
49
Exhibit B - AGREEMENT INTERIM LEASE SUPPLEMENT
COUNTERPART ___ OF ____. TO THE EXTENT, IF ANY, THAT THIS AGREEMENT INTERIM
LEASE SUPPLEMENT CONSTITUTES CHATTEL PAPER (AS SUCH TERM IS DEFINED IN THE
UNIFORM COMMERCIAL CODE AS IN EFFECT IN ANY APPLICABLE JURISDICTION), NO
SECURITY INTEREST IN, OR ASSIGNMENT OF SELLER'S INTEREST IN THIS AGREEMENT
INTERIM LEASE SUPPLEMENT MAY BE CREATED THROUGH THE TRANSFER OF POSSESSION OF
ANY COUNTERPART OTHER THAN COUNTERPART No. 1 OF THIS AGREEMENT INTERIM LEASE
SUPPLEMENT.
AGREEMENT INTERIM LEASE SUPPLEMENT
This AGREEMENT INTERIM LEASE SUPPLEMENT, dated as of the 24/th/ day of
October 2000, is between First Security Bank, N.A., a national banking
association, not in its individual capacity but solely as trustee under that
certain Trust Agreement No. III dated as of December 30, 1991, as amended
("Seller"), and Royal Aviation Inc., d/b/a/ Royal Airlines ("Buyer).
WHEREAS, Seller and Buyer have entered into the Aircraft Conditional
Sale Agreement, dated as of the 24/th/ day of October, 2000 (the "Agreement"),
for the sale by Seller and the purchase by Buyer of that certain Boeing B737-
200A airframe bearing manufacturer's serial number 21721, together with those
two (2) Pratt & Witney JT8D-9A engines bearing Manufacturer's Serial Numbers
707432 & 687834, and all Data and Parts (as defined in the Agreement) installed
thereon, attached thereto, incorporated therein, and associated therewith (all
of the foregoing collectively the "Equipment");
WHEREAS, the Agreement provides that until such time as consummation
of the sale of the Equipment shall occur, Seller shall lease the Equipment to
Buyer and Buyer shall lease the Equipment from Seller; and
WHEREAS, the Agreement provides for the execution and delivery of this
Agreement Interim Lease Supplement for the purpose of leasing the Equipment
under the Agreement as and when delivered by Seller to Buyer in accordance with
the terms of the Agreement; and
WHEREAS, this Agreement Interim Lease Supplement, together with either
the attached Agreement or a short form aircraft lease mutually acceptable to the
parties, are being filed for recordation on the date of this Agreement Interim
Lease Supplement with Transport Canada as one document.
NOW THEREFORE, in consideration of the premises and other good and
sufficient consideration, Seller and Buyer hereby agree as follows:
50
1. Capitalized terms used but not defined in this Agreement Interim
Lease Supplement have the meanings defined for such terms in the Agreement.
2. Seller hereby delivers and leases to Buyer, and Buyer hereby
accepts and leases from Seller, under the Agreement the Equipment
3. The Interim Lease Term for the Equipment shall commence on the
date of this Agreement Interim Lease Supplement and shall terminate on the
Closing Date (as defined in the Agreement).
4. Buyer hereby confirms to Seller that Buyer has accepted the
Equipment for all purposes of the Agreement and of this Agreement Interim Lease
Supplement.
5. The terms and provisions of this Agreement Interim Lease
Supplement are supplemental to and incorporated into the Agreement to the same
extent as if fully set forth in the Agreement.
[SIGNATURE PAGE FOLLOWS]
51
IN WITNESS WHEREOF, Seller and Buyer have duly executed and delivered
this Agreement Interim Lease Supplement on the date first written above.
Seller: First Security Bank, NA, not in its individual capacity
but solely as trustee under that certain Trust
Agreement No. III dated as of December 30, 1991, as
amended.
By: ____________________________
Name: __________________________
Title: _________________________
Buyer: Royal Aviation Inc., d/b/a/ Royal Airlines
By: ____________________________
Name: __________________________
Title: _________________________
52
Exhibit C - LEASE DELIVERY RECEIPT
This LEASE DELIVERY RECEIPT, dated as of October 24/th/, 2000, is
between First Security Bank, N.A., a national banking association, not in its
individual capacity but solely as trustee under that certain Trust Agreement No.
III dated as of December 30, 1991, as amended ("Seller"), and Royal Aviation
Inc., d/b/a/ Royal Airlines ("Buyer).
WHEREAS, Seller and Buyer have entered into the Aircraft Conditional
Sale Agreement, dated as of the 24/th/ day of October, 2000 (the "Agreement"),
for the sale by Seller and the purchase by Buyer of that certain Boeing B737-
200A airframe bearing manufacturer's serial number 21721, together with those
two (2) Pratt & Witney JT8D-9A engines bearing Manufacturer's Serial Numbers
707432 & 687834, and all Data and Parts (as defined in the Agreement) installed
thereon, attached thereto, incorporated therein, and associated therewith (all
of the foregoing collectively the "Equipment");
WHEREAS, the Agreement provides that until such time as consummation
of the sale of the Equipment shall occur, Seller shall lease the Equipment to
Buyer and Buyer shall lease the Equipment from Seller; and
WHEREAS, the Agreement provides for the execution and delivery of this
Lease Delivery Receipt at the time of the delivery of the Equipment to Buyer
under the Agreement.
NOW THEREFORE, in consideration of the premises and other good and
sufficient consideration, Seller and Buyer hereby agree as follows:
1. Capitalized terms used but not defined in this Delivery Receipt have
the meanings defined for such terms in the Agreement.
2. Buyer hereby unconditionally acknowledges delivery and receipt under
the Agreement of the Equipment at Tucson International Airport, Tucson, Arizona,
as of this date.
3. Buyer represents that it has inspected the Equipment and acknowledges
that its execution and delivery to Seller of this Lease Delivery Receipt
constitutes conclusive evidence as against Buyer that all conditions set forth
in Section 4.1 and Section 5 of the Agreement have been satisfied or waived.
----------- ---------
[SIGNATURE PAGE FOLLOWS]
53
IN WITNESS WHEREOF, Seller and Buyer have duly executed and delivered
this Lease Delivery Receipt on the date first written above.
Seller: First Security Bank, NA, not in its individual capacity
but solely as trustee under that certain Trust
Agreement No. III dated as of December 30, 1991, as
amended.
By: _________________________
Name: _________________________
Title: _________________________
Buyer: Royal Aviation Inc., d/b/a/ Royal Airlines
By: _________________________
Name: _________________________
Title: _________________________
54
Exhibit D - BILL OF SALE
KNOW ALL MEN BY THESE PRESENTS:
THAT, First Security Bank, NA, not in its individual capacity but solely as
trustee under that certain Trust Agreement No. III dated as of December 30,
1991, as amended ("Seller"), is the lawful owner of all right, title and
interest in and to:
That certain Boeing B737-200A airframe bearing manufacturer's
serial number 21721, together with those two (2) Pratt & Witney
JT8D-9A engines bearing Manufacturer's Serial Numbers 707432 &
687834, and all Data and Parts (as defined in the Agreement)
installed thereon, attached thereto, incorporated therein, and
associated therewith (all of the foregoing collectively the
"Equipment")
THAT, for the sum of Ten Dollars ($10.00) and other good and valuable
consideration, receipt and adequacy of which is hereby acknowledged, Seller does
as of the date provided below, grant, convey, transfer, deliver and set over all
of Seller's right, title and interest in and to the Equipment unto Royal
Aviation Inc., d/b/a/ Royal Airlines ("Buyer") and unto its successors and
assigns forever.
THAT, Seller hereby warrants that there is hereby conveyed to Buyer on the date
hereof, good title to the Equipment, free and clear of all liens, claims or
encumbrances arising by, through, or under Seller, excepting liens, claims and
encumbrances rising by, through, or under Buyer.
IN WITNESS WHEREOF, Seller has caused this instrument to be executed and
delivered by its duly authorized signatory as of this ___ day of _____, 20__.
Seller: First Security Bank, NA, not in its individual capacity
but solely as trustee under that certain Trust
Agreement No. III dated as of December 30, 1991, as
amended.
By: _________________________
Name: _________________________
Title: _________________________
55
Exhibit E - CLOSING DELIVERY RECEIPT
This CLOSING DELIVERY RECEIPT, dated as of _____________, 20___, is
between First Security Bank, N.A., a national banking association, not in its
individual capacity but solely as trustee under that certain Trust Agreement No.
III dated as of December 30, 1991, as amended ("Seller"), and Royal Aviation
Inc., d/b/a/ Royal Airlines ("Buyer).
WHEREAS, Seller and Buyer have entered into the Aircraft Conditional
Sale Agreement, dated as of the 24/th/ day of October, 2000 (the "Agreement"),
for the sale by Seller and the purchase by Buyer of that certain Boeing B737-
200A airframe bearing manufacturer's serial number 21721, together with those
two (2) Pratt & Witney JT8D-9A engines bearing Manufacturer's Serial Numbers
707432 & 687834, and all Data and Parts (as defined in the Agreement) installed
thereon, attached thereto, incorporated therein, and associated therewith (all
of the foregoing collectively the "Equipment");
WHEREAS, the Agreement provides for the execution and delivery of this
Closing Delivery Receipt at the time of the Closing under the Agreement; and
WHEREAS, immediately prior to the Closing, Buyer was in physical
possession of the Equipment in the legal capacity of lessee, and has possessed
and operated the Equipment in such capacity during the Interim Lease Term.
NOW THEREFORE, in consideration of the premises and other good and
sufficient consideration, Seller and Buyer hereby agree as follows:
1. Capitalized terms used but not defined in this Delivery Receipt have
the meanings defined for such terms in the Agreement.
2. Buyer hereby unconditionally acknowledges delivery and receipt under
the Agreement of fee title to the Equipment at __________________ Airport,
__________, ___________, as of this date.
3. Buyer represents and acknowledges that its execution and delivery to
Seller of this Closing Delivery Receipt constitutes conclusive evidence as
against Buyer that Seller has satisfied, or Buyer has waived, each and every
obligation of Seller arising under the Agreement, and that Buyer is acquiring
the Equipment in "AS IS," "WHERE IS" and "WITH ALL FAULTS" condition. Buyer
further acknowledges that as at the date hereof, Buyer shall have been in
possession of the Equipment during the Interim Lease Term and shall have been
solely responsible for all maintenance and repairs of the Equipment during such
Interim Lease Period, and that Seller shall have no responsibility or liability
to Buyer for the condition of the Equipment on such date.
[SIGNATURE PAGE FOLLOWS]
56
IN WITNESS WHEREOF, Seller and Buyer have duly executed and delivered
this Closing Delivery Receipt on the date first written above.
Seller: First Security Bank, NA, not in its individual capacity
but solely as trustee under that certain Trust
Agreement No. III dated as of December 30, 1991, as
amended.
By: _________________________
Name: _________________________
Title: _________________________
Buyer: Royal Aviation Inc., d/b/a/ Royal Airlines
By: _________________________
Name: _________________________
Title: _________________________
57
Exhibit F - REDELIVERY RECEIPT
This REDELIVERY RECEIPT, dated as of the ______ day of ________, 20__,
is between First Security Bank, N.A., a national banking association, not in its
individual capacity but solely as trustee under that certain Trust Agreement No.
III dated as of December 30, 1991, as amended ("Seller"), and Royal Aviation
Inc., d/b/a/ Royal Airlines ("Buyer).
WHEREAS, Seller and Buyer have entered into the Aircraft Conditional
Sale Agreement, dated as of the 24/th/ day of October, 2000 (the "Agreement"),
for the sale by Seller and the purchase by Buyer of that certain Boeing B737-
200A airframe bearing manufacturer's serial number 21721, together with those
two (2) Pratt & Witney JT8D-9A engines bearing Manufacturer's Serial Numbers
707432 & 687834, and all Data and Parts (as defined in the Agreement) installed
thereon, attached thereto, incorporated therein, and associated therewith (all
of the foregoing collectively the "Equipment");
WHEREAS, the Agreement provides that until such time as consummation
of the sale of the Equipment shall occur, Seller shall lease the Equipment to
Buyer and Buyer shall lease the Equipment from Seller;
WHEREAS, the Agreement provides for the execution and delivery of this
Redelivery Receipt in the event the Equipment is returned to Seller and there is
no Closing under the Agreement; and
WHEREAS, Buyer is this date returning the Equipment to Seller.
NOW THEREFORE, in consideration of the premises and other good and
sufficient consideration, Seller and Buyer hereby agree as follows:
1. Capitalized terms used but not defined in this Redelivery Receipt have
the meanings defined for such terms in the Agreement.
2. Seller hereby accepts redelivery from Buyer of the Equipment in
accordance with the terms and conditions set forth in the Agreement.
[SIGNATURE PAGE FOLLOWS]
58
IN WITNESS WHEREOF, Seller and Buyer have duly executed and delivered
this Redelivery Receipt on the date first written above.
Seller: First Security Bank, NA, not in its individual capacity
but solely as trustee under that certain Trust
Agreement No. III dated as of December 30, 1991, as
amended.
By: _________________________
Name: _________________________
Title: _________________________
Buyer: Royal Aviation Inc., d/b/a/ Royal Airlines
By: _________________________
Name: _________________________
Title: _________________________
59
Exhibit G - CONFIRMATION
CONFIRMATION OF INTERESTED PARTIES [MSN 21721]
To: Transport Canada Aviation
Re: Application for Registration of B737-200A Aircraft, MSN 21721, C - (the
"Aircraft")
In connection with the attached Application for Registration for the Aircraft we
hereby confirm that the identities of the parties holding an interest in the
Aircraft are as follows:
1. Registered Owner and
Conditional Buyer Royal Aviation Inc.
2. Entity with Legal Title: First Security Bank of Utah, National
Association (as Trustee and Conditional
Seller)
3. Entity with Beneficial Title: EQUIS Financial Group, LLC
4. Holder of First Priority Security N/A
Interest:
We hereby request that the interest(s) of the above parties be noted in the file
for the Aircraft to the extent possible.
DATED as of ____________, 2000.
ROYAL AVIATION INC.
By: __________________________
Name:
Title:
60
Exhibit H - AUTHORIZATION LETTER
[Royal Aviation Inc. Letterhead]
[Date]
NAV CANADA
TRANSPORT CANADA AVIATION
MONTREAL AIRPORTS AUTHORITY
GREATER TORONTO AIRPORTS AUTHORITY
Subject: Statements of Account - Relative to Royal Aviation Inc.
Dear Sirs:
We hereby confirm that First Security Bank (as "Conditional Seller") has entered
into an Aircraft Conditional Sale Agreement with Royal Aviation Inc. (as
"Conditional Buyer"). This agreement was executed as of October 24, 2000 in
respect of one (1) B737-200A Aircraft, serial number 21721 (the "Aircraft").
We hereby irrevocably authorize you to release to Conditional Seller (or its
duly authorized representative) upon Conditional Seller's request from time to
time, a statement of account of all sums due by us to you, as of the date of
each such request, in respect of all aircraft operated by Lessee, including but
not limited to, the Aircraft.
Yours faithfully,
ROYAL AVIATION INC.
___________________________
Louis McGuire
Vice President Finance
61
Schedule I
Purchase Price: $2,400,000.00
Initial Installment: $150,000.00
14 Additional Installments: $150,000.00 each
Final Installment: $150,000.00
Stipulated Loss Value: $3,500,000.00
62