EXHIBIT 10.94
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AIRCRAFT SALES AGREEMENT
BY AND BETWEEN
FLIGHTLEASE, LTD
AND
FEDERAL EXPRESS CORPORATION
DATED AS OF APRIL 21, 1998
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SALE OF TWENTY XxXXXXXXX XXXXXXX MODEL MD-11 AIRCRAFT
AND RELATED AIRCRAFT EQUIPMENT
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FEC Contract No. 98-0818
AIRCRAFT SALES AGREEMENT
This AIRCRAFT SALES AGREEMENT (the "Agreement") is entered into as of the
21st day of April, 1998 by and between Flightlease, LTD, a Swiss corporation
("Flightlease") and FEDERAL EXPRESS CORPORATION, a Delaware corporation
("FedEx").
RECITALS
1. Flightlease desires to sell to FedEx and FedEx desires to buy from
Flightlease twenty (20) XxXxxxxxx Xxxxxxx Model MD-11 aircraft, all upon the
terms and conditions contained in this Agreement.
2. Flightlease and FedEx desire to document the terms and conditions for
the sale and purchase of the Aircraft, as defined below.
FOR AND IN CONSIDERATION of the mutual covenants contained in this
Agreement and other good and valuable consideration, the receipt of which is
hereby acknowledged, FedEx and Flightlease (each a "Party" and together the
"Parties") agree as follows:
ARTICLE 1
DEFINITIONS; CONSTRUCTION
Section 1.01. Primary Definitions. In addition to words and terms
elsewhere defined in this Agreement, the following words and terms shall have
the meanings set forth below:
"Aircraft" shall mean any or all of the twenty (20) XxXxxxxxx Xxxxxxx Model
MD-11 aircraft, each with three Engines, the APU and any and all Parts installed
therein or thereon at Delivery, as more particularly described on Exhibit A
hereto, with all associated records and documentation for each Airframe and
Engine including, but not limited to (i) all Aircraft and Engine logs, records,
manuals and historical documents updated to the current delivery status of each
respective Aircraft and Engine, and (ii) all production and detail drawings,
data and documents relating to such Aircraft and the operation thereof in the
possession of Swissair or Flightlease or any subsequent operator thereof, as may
be required for U.S. certification.
"Aircraft Delivery Certificate" shall mean a tender and acceptance
certificate, substantially in the form of Exhibit B.
"Aircraft Records" shall mean that portion of the Data listed under the
caption "Records" in Exhibit D.
"Airframe" shall mean any one or more of the XxXxxxxxx Xxxxxxx Model MD-11
airframes bearing the respective Manufacturer's Serial Numbers set forth in
Exhibit A.
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"Airworthiness Directive" shall mean a mandatory order issued by the FAA
applying to specific types of aircraft, engines, parts or appliances, when an
unsafe condition exists and that condition is likely to exist or develop in
other aircraft, engines, parts or appliances of the same design.
"Airworthy" shall mean the condition of an Aircraft (1) which includes the
existence of a validly issued, current individual aircraft FOCA Certificate of
Airworthiness with respect to such Aircraft and which satisfies all requirements
for the effectiveness of such FOCA Certificate of Airworthiness, (2) which
complies with:
(A) the MD-11 Type Design Data Certificate, including all applicable
supplemental type certificates which have been incorporated on such
Aircraft;
(B) subject to the nondiscrimination covenants set forth in Section
3.06(a)(ii), all applicable FAA Airworthiness Directives which are required
to be complied with by the Scheduled Delivery Date of such Aircraft and the
requirements for maintaining data substantiating the status and method of
compliance for each such Airworthiness Directive; and
(C) the Aircraft records requirements set forth in Exhibit D; and
(3) in which such Aircraft's structure, systems and components are functioning
in accordance with their intended use as set forth in FAA-approved
documentation, including, but not limited to, any applicable original
manufacturer's manuals, technical standard orders, parts manufacturing approval
certificates or Swissair engineering specification orders.
"APU" shall mean an auxiliary power unit of a type approved by either the
FOCA or the FAA for use on XxXxxxxxx Xxxxxxx Model MD-11 aircraft.
"Business Day" shall mean any day other than a Saturday, Sunday or other
day on which banking institutions in New York, New York or Memphis, Tennessee or
Zurich, Switzerland are authorized or required by law to be closed.
"Change Designation" shall mean a notice in the form set forth in Exhibit F
exercising the right to substitute Airframes set forth in Section 2.02.
"Data" shall mean all of the manuals, documents, drawings, charts, records
and other recorded materials described in Exhibit D, on whatever medium, and any
successor, supplemental, modifying, amending or replacement manuals, documents,
drawings, charts, records and other recorded materials, on whatever medium, all
of which shall be current with the latest revisions available with respect
thereto at the time such Data is delivered to FedEx.
"Delivery" or "Delivered" shall mean, with respect to any Aircraft, the
occurrence of all the following events, which events are to be performed in
accordance with this Agreement: (a) tender of the Aircraft by Flightlease to
FedEx as evidenced by Flightlease's execution and delivery to FedEx of an
Aircraft Delivery Certificate with respect to such Aircraft, (b) acceptance by
FedEx of the
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Aircraft, as evidenced by FedEx's execution and re-delivery of such Aircraft
Delivery Certificate to Flightlease, and (c) sale by transfer of title of the
Aircraft by Flightlease to FedEx as evidenced by delivery to FedEx of the
executed FAA Xxxx of Sale and the executed Warranty Xxxx of Sale.
"Delivery Condition" shall mean the condition that an Aircraft must be in
at the time it is tendered by Flightlease to FedEx for Delivery as prescribed by
Section 3.06.
"Delivery Date" shall mean any date on which the Delivery of an Aircraft is
complete.
"Designation" shall mean a written notice in the form set forth in Exhibit
E designating a particular Airframe for delivery on a Scheduled Delivery Date.
"Engine" shall mean one or more, as the case may be, Xxxxx & Xxxxxxx
XX0000 or PW4460 aircraft engines in full QEC configuration to be conveyed to
FedEx under this Agreement as a part of an Aircraft.
"Engine Designation" shall mean a written notice in the form set forth in
Exhibit H designating the Engines to be conveyed by Flightlease to FedEx as a
part of an Aircraft.
"Engine Records" shall mean that portion of the Data relating to the
Engines and the Spare Engines, including that portion of the Data set forth
under the caption "Engines" in Exhibit D.
"Event of Default" shall mean, as to Flightlease, any of the events of
default set forth in Section 12.01 and, as to FedEx, any of the events of
default set forth in Section 12.02.
"Excusable Delay" shall mean any delay in the timely discharge and
performance by a Party of its obligations and duties under this Agreement to the
extent such delay shall be the result of (i) the occurrence of a Force Majeure
Event with respect to the Party whose performance is delayed, (ii) the fault of
the other Party, whether such fault arises from the failure of the other Party
to discharge and perform its obligations and duties hereunder or otherwise, or
(iii) any other event that excuses as a matter of applicable law a Party's
timely performance of its contractual obligations and duties.
"FAA" shall mean the United States Federal Aviation Administration or any
successor agency thereto.
"FAR" shall mean the United States Federal Aviation Regulations, 14 C.F.R
(S)1 et seq., as promulgated pursuant to Title 49 (S)40101 et seq. of the United
States Code, and any successor statute thereto, as such regulations are in
effect from time to time.
"FOCA" shall mean the Federal Office for Civil Aviation of Switzerland, or
any successor agency thereto.
"Force Majeure Event" shall mean any act of God, action or regulation of
any governmental authority, fire, weather, flood, earthquake, accident, act of
the public enemy, war, civil disturbance, rebellion, insurrection, work
stoppage, work slow down, other labor or work action, labor dispute,
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restraint of government or other cause or event beyond the control of the Party
claiming the benefit of the occurrence of any such force majeure.
"Lien" shall mean any mortgage, pledge, security interest, lien, claim,
encumbrance or other charge or rights of others of any kind on property.
"Life Limited Part" shall mean an item which when listed on the Aircraft or
Engine type certificate data sheet or the applicable Manufacturer's instructions
for continued airworthiness, must be permanently removed from service and
discarded before a specified time (e.g. hours, cycles or calendar limit) is
achieved.
"LTU" shall mean LTU Lufttransport-unternehmen GmbH & Co. KG.
"LTU Aircraft" shall mean those certain four (4) MD-11 aircraft, each with
three (3) Xxxxx & Xxxxxxx 4460 engines installed thereon, with the airframes
bearing manufacturer's serial numbers 48484, 48485, 48486 and 48538 to be
acquired by Flightlease from LTU.
"Manufacturer" shall mean XxXxxxxxx Xxxxxxx Corporation as to the Airframes
and United Technologies Corporation/Xxxxx & Xxxxxxx as to the Engines or Spare
Engines, or such other companies contracted by either of the foregoing
corporations for the supply of approved Aircraft Parts.
"Overhaul" shall mean the work necessary to return an item to the highest
standard specified in the relevant manual as set forth in SR Technics' PW4000
Engine Reliability Program (ERP 6) (Publication Number 068 906, 3rd Edition,
dated February 28, 1998) such that the item will be entirely disassembled and
every single part restored per the engine manual instructions.
"Part" shall mean any item or items of avionics, appliances, parts,
furnishings, instruments, accessories and equipment approved by the FAA or the
FOCA for installation and use on an Aircraft.
"Purchase Price" shall mean, as applicable, the purchase price for (a) an
Aircraft on a Scheduled Delivery Date as set forth in Section 2.01 or (b) a
Spare Engine on a Spare Engine Delivery Date as set forth in Section 4.03 or (c)
Spare Parts upon delivery to FedEx as set forth in Section 4.04.
"Scheduled Delivery Date" shall mean a date on which an Aircraft is to be
delivered as set forth in Section 2.01 or such other date as the Parties may
agree in writing.
"Shop Findings Report" shall mean a report stating the root cause of the
failure of a Part and the materials used in returning such Part to a serviceable
condition which is executed by an authorized repairman, all in accordance with
the Swissair Maintenance Program.
"Spare Engine" shall mean each of the eight (8) Xxxxx & Whitney PW4462
engines to be sold to FedEx by Flightlease each in full QEC configuration, which
are not installed on the Aircraft and as more particularly described in Section
4.01 herein.
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"Spare Engine Delivery Certificate" shall mean a tender and acceptance
certificate, substantially in the form of Exhibit J, executed by FedEx and
Flightlease concurrently with the Delivery of each Spare Engine.
"Spare Part" shall mean Parts held by the SAirGroup or any of its direct or
indirect subsidiaries in their respective inventories on the date specified in
Section 4.04 herein and that are unique to or available for use upon XxXxxxxxx
Xxxxxxx Model MD-11 aircraft.
"Swissair" shall mean Swiss Air Transport Co., LTD., a wholly-owned
subsidiary of SAirGroup Company, as an operator of the Aircraft.
"Swissair Maintenance Program" shall mean SR Technics' FOCA-approved
Maintenance Program (in effect as of the date of this Agreement, a copy of which
is attached as Exhibit "K") for the Airframes and the Engines.
"Transition Maintenance" shall mean all of the maintenance items under
FedEx's FAA-approved maintenance program required to transition each Aircraft
from Swissair's Maintenance Program to the FedEx maintenance schedule (inclusive
of FedEx's zero C Check and zero B Check), all in full compliance with such
maintenance requirements in force and effect at the Delivery of each applicable
Aircraft.
"Warranty Xxxx of Sale" shall mean a warranty xxxx of sale conveying title
to an Aircraft or Spare Engine to FedEx, which warranty xxxx of sale shall be in
the form attached hereto as Exhibit C-1 or C-2, as applicable.
Section 1.02. Rules of Construction. The words "hereof," "herein,"
"hereunder," "hereto" and other words of similar import refer to this Agreement
in its entirety. The terms "agree" and "agreements" contained herein are
intended to include and mean "covenant" and "covenants". Article and section
headings in this Agreement have been inserted solely for convenience and shall
not be considered in construing this Agreement.
ARTICLE 2
PURCHASE OF AIRCRAFT
Section 2.01. Purchase Prices and Delivery Dates. (a) On the terms and
subject to the conditions set forth herein, Flightlease agrees to sell to FedEx,
and FedEx agrees to purchase from Flightlease, the Aircraft, with one Aircraft
to be so sold and purchased on each Scheduled Delivery Date as set forth below.
If any Scheduled Delivery Date is not a Business Day, the Aircraft to be
delivered shall be delivered on such Scheduled Delivery Date and accepted on the
Business Day next following the Scheduled Delivery Date. Subject to the
provisions of Section 2.01(b), the Purchase Price of each Aircraft to be
delivered on each Scheduled Delivery Date and the latest date by which a
Designation as to a Scheduled Delivery Date may be given are as set forth in the
following table:
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LATEST SCHEDULED
DELIVERY DESIGNATION DELIVERY PURCHASE
NUMBER DATE DATE PRICE
1 01-Aug-2001 01-Aug-2002 *
2 01-Sep-2001 01-Sep-2002 *
3 01-Oct-2001 01-Oct-2002 *
4 01- Nov-2001 01- Nov-2002 *
5 01-Mar-2002 01-Mar-2003 *
6 01-Jun-2002 01-Jun-2003 *
7 01-Sep-2002 01-Sep-2003 *
8 01-Dec-2002 01-Dec-2003 *
9 01-Mar-2003 01-Mar-2004 *
10 01-Jun-2003 01-Jun-2004 *
11 01-Sep-2003 01-Sep-2004 *
12 01-Dec-2003 01-Dec-2004 *
13 01-Mar-2004 01-Mar-2005 *
14 01-Jun-2004 01-Jun-2005 *
15 01-Sep-2004 01-Sep-2005 *
16 01-Dec-2004 01-Dec-2005 *
17 01-Mar-2005 01-Mar-2006 *
18 01-Jun-2005 01-Jun-2006 *
19 01-Sep-2005 01-Sep-2006 *
20 01-Dec-2005 01-Dec-2006 *
provided, however, Flightlease shall be paid an additional *
by FedEx upon Delivery of each Aircraft bearing MSN 48540, 48634 and 48541
regardless of the Delivery Date of each such Aircraft to FedEx.
(b) if an Aircraft is not Delivered on a date specified above, then the
Purchase Price for such Aircraft will be reduced by * per month
for each month that has elapsed since July 1, 1998, using a base price of
*. If the Delivery Date is not the first Business Day of the month, then the
Purchase Price shall be additionally reduced on a daily basis by *
for each elapsed day from the first day of the month of Delivery up to and
including the Delivery Date. The following example shall be illustrative of the
calculation of a Purchase Price for an Aircraft which is not Delivered on a date
specified above:
EXAMPLE: If an Aircraft is purchased December 20, 2003, then
*
(c) Upon mutual agreement of FedEx and Flightlease and not less than two
(2) years' prior written notice, any Scheduled Delivery Date(s) may be changed
to such other date(s) as are mutually acceptable to the parties. Notwithstanding
the foregoing, if either Flightlease or FedEx
*Blank space contained confidential information which has been filed separately
with the Securities and Exchange Commission pursuant to Rule 24b-2 under the
Securities Exchange Act of 1934.
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requests a revised Scheduled Delivery Date(s) for any one or more Aircraft and
the Parties are unable to agree upon a mutually acceptable revised Scheduled
Delivery Date(s), then such Scheduled Delivery Date(s) shall remain unchanged
and as written above.
Section 2.02. Designation and Substitution of Airframes and Engines. (a)
Flightlease will designate an Airframe from among all the Airframes for
Delivery on a Scheduled Delivery Date by giving FedEx a Designation on or before
the latest date for giving such Designation specified in Section 2.01. Each
Airframe to be designated by Flightlease to be delivered on any Scheduled
Delivery Date will be chosen by Flightlease in its sole discretion. Flightlease
shall have the right as a result of operational considerations to substitute a
different Airframe for a previously designated Airframe for delivery on a
Scheduled Delivery Date by delivering a Change Designation on any date before
the one hundred eightieth (180th) day prior to such Scheduled Delivery Date,
provided that, within thirty (30) days after its receipt of FedEx's invoice
setting forth in detail the nature and amount of any reasonable incremental
engineering costs and incremental modification costs, Flightlease reimburses
FedEx for any such costs incurred by FedEx solely as the result of the
substitution of the Airframe.
(b) No later than thirty (30) days prior to the Scheduled Delivery Date
for an Aircraft, Flightlease shall designate to FedEx the three Engines to be
conveyed to FedEx as part of such Aircraft to be delivered on such Scheduled
Delivery Date by giving FedEx a completed Engine Designation. After designating
such Engines, Flightlease will not substitute other Engines for such designated
Engines without FedEx's prior approval (except where required to meet the
applicable delivery conditions or other matters beyond the reasonable control of
Flightlease). Each Engine to be delivered on the various Scheduled Delivery
Dates will be chosen by Flightlease in its sole discretion, subject to the
limitation set forth in Section 5.01(d) and provided that (i) the three Engines
on each Airframe shall all be of the same type specification and type data plate
certification, and (ii) no more than twelve of such Engines delivered to FedEx
shall be Xxxxx & Xxxxxxx PW4460 engines.
Section 2.03. Payment of Purchase Price. Each Purchase Price payable to
Flightlease by FedEx shall be net of any and all taxes, recording expenses,
assessments, duties and similar governmental charges and fees charged on or with
respect to the sale of the Aircraft, any and all of which amounts shall be paid
by FedEx, subject, however, to the provisions of Section 3.01 and Article 8.
The Purchase Price for each Aircraft shall be paid on the Delivery Date for such
Aircraft. The Purchase Price for any Spare Engine or Spare Parts purchased
pursuant to Article 4 shall be paid on the date the Spare Engine(s) or Spare
Part(s) being sold to FedEx are delivered by Flightlease to FedEx. The Purchase
Prices shall be paid by FedEx in United States Dollars by wire transfer of
immediately available funds to such account(s) as may be designated in writing
by Flightlease to FedEx.
ARTICLE 3
AIRCRAFT DELIVERY, TITLE, RISK OF LOSS
Section 3.01. Delivery. Flightlease shall deliver each Aircraft to FedEx
on the Scheduled Delivery Date for each such Aircraft pursuant to the procedures
set forth in this Article 3. Flightlease shall tender each Aircraft required to
be delivered to FedEx under this Agreement by
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delivering an Aircraft Delivery Certificate (completed as to the tender related
portion thereof) to FedEx with respect to such Aircraft. The Delivery of each
Aircraft, Spare Engine and Spare Part shall be made at Zurich International
Airport, Zurich, Switzerland, provided that no Tax (as defined in Article 8) is
assessed against the purchase or sale of the Aircraft, Spare Engine or Spare
Part. If such Tax is likely to be assessed, then the Parties shall agree upon a
mutually acceptable alternate delivery location which prevents the payment of a
Tax.
Section 3.02. Inspection, Flight Checks and Discrepancies. (a) FedEx
shall have access to each Aircraft no later than five (5) days prior to the
Scheduled Delivery Date for such Aircraft at Swissair's maintenance facility at
the Zurich International Airport, Zurich, Switzerland. At such time, FedEx
shall have the right to: (i) conduct all ground inspections reasonably necessary
to determine whether the Aircraft is in Delivery Condition, including, but not
limited to, engine borescope inspections required to determine that each Engine
is within the serviceable limits prescribed by the XxXxxxxxx Xxxxxxx Maintenance
Manual chapter 72-00-07; and (ii) functionally ground and flight check such
Aircraft in accordance with the requirements and procedures contained in the
XxXxxxxxx Xxxxxxx Model MD-11 Production Flight Procedure Manual (the "MDAC
PFPM"). Notwithstanding the foregoing, FedEx and Flightlease each agree to use
commercially reasonable efforts to minimize any duplication of testing and
inspection procedures contemplated under this Section 3.02 and, as reasonably
possible, to jointly participate in the testing and inspections to prevent
duplication. Subject to Section 3.02(b), any such checks or test flights shall
be of a reasonable duration. In determining if an Aircraft is in Delivery
Condition the tolerances stated in the MDAC PFPM shall apply. FedEx shall bear
its own incremental costs incurred to attend any inspections, tests and checks
contemplated under this Article 3.
(b) The initial flight test of an Aircraft shall not be more than four (4)
hours in duration. Flightlease will permit at least two (2) representatives of
FedEx to observe any functional flight check of an Aircraft made in conjunction
with the Delivery of such Aircraft. During the functional flight check,
Flightlease shall provide a pilot who shall function as pilot-in-command and who
shall maintain operational control and responsibility for the Aircraft. FedEx
shall provide a properly licensed and certificated pilot who shall occupy a
pilot's seat (left or right, at the discretion of the pilot-in-command).
FedEx's pilot shall physically exercise the flight controls in such phases of
flight as necessary to verify the functional operation of the Aircraft.
Insurance for all functional flight checks shall be provided by Flightlease, at
its sole expense under its insurance policies, provided, however, that any FedEx
personnel who are to be present on such Aircraft during any such flight shall
execute and deliver to Flightlease prior to such flight a release and waiver of
liability containing terms and conditions reasonably satisfactory to
Flightlease. Flightlease shall provide the fuel necessary for such flight
check.
(c) Upon completion of functional ground and flight check of an Aircraft,
Flightlease shall, at Flightlease's expense and in accordance with the
applicable criteria set forth in the Swissair Maintenance Program: (i) correct
and/or clear any items noted in the Aircraft's log book and (ii) correct and/or
clear any discrepancies of the Aircraft from the Delivery Condition otherwise
noted during the functional ground and flight checks of such
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Aircraft. If an additional flight check is required to demonstrate that a
discrepancy from the Delivery Condition for such Aircraft has been corrected,
such additional flight check shall be conducted in the manner set forth in
Section 3.02(a) and (b). Any additional flight check made to inspect the
correction of any discrepancy of such Aircraft from the required Delivery
Condition previously noted shall be limited to the time necessary to inspect
such discrepancy. If additional discrepancies from the Delivery Condition are
noted during a subsequent flight check (or the original discrepancy is not
satisfactorily corrected), Flightlease shall correct the discrepancy from the
Delivery Condition noted during the subsequent flight check. Notwithstanding the
foregoing, Flightlease shall not be required to correct or clear any items or
discrepancies of the Aircraft from Delivery Condition that are (y) related
solely to any Passenger Parts, or (z) which the Parties agree in writing in the
Aircraft Delivery Certificate to correct and/or clear after the Delivery of the
Aircraft.
(d) Upon completion of the items in Sections 3.02(a) through 3.02(c) on an
Aircraft, FedEx shall execute and deliver to Flightlease the Aircraft Delivery
Certificate for such Aircraft pursuant to which FedEx shall certify that it has
accepted the Aircraft and that the Aircraft is in the Delivery Condition, except
to the extent that any remaining discrepancies of the Aircraft from the Delivery
Condition are noted by the Parties in such Aircraft Delivery Certificate.
Thereafter, subject to Section 3.01, Flightlease shall not change or alter the
configuration or operate such Aircraft for any reason prior to Delivery without
the prior written consent of FedEx.
Section 3.03. Delivery Procedure. At the time of Delivery of each
Aircraft:
(i) Flightlease shall deregister the Aircraft from the FOCA aircraft
registry; shall cause the FOCA to confirm the deregistration of the Aircraft to
the satisfaction of the FAA; and shall perform such other acts as are reasonably
requested by FedEx to facilitate each Aircraft to be placed on the FAA aircraft
registry;
(ii) Flightlease shall execute and deliver to FedEx the FAA Xxxx of
Sale (FAA Form 8050-2) and the Warranty Xxxx of Sale;
(iii) FedEx shall pay Flightlease the Purchase Price in accordance with
Section 2.03;
(iv) Flightlease shall deliver to FedEx the Data with respect to such
Aircraft;
(v) Flightlease shall execute and deliver to FedEx an assignment of
any warranties with respect to the Aircraft, in the form of Exhibit G;
(vi) Concurrently with the delivery of the Warranty Xxxx of Sale
described in clause (ii) above, Flightlease shall cause the FAA Xxxx of Sale
executed by Flightlease to be filed and recorded with the FAA Aircraft Registry
in Oklahoma City, Oklahoma. FedEx shall be responsible for all costs of filing
or recording of the FAA Xxxx of Sale and any such other acceptance certificates,
delivery receipts and any other documents as shall be agreed to by the Parties
as appropriate for the sale, purchase and Delivery of such Aircraft;
(vii) At the time and upon completion of Delivery of each Aircraft,
Messrs. Xxxxxxxxx, Xxxxxx & Xxxxxxxx, special FAA counsel to FedEx, shall
confirm to FedEx that such counsel will furnish FedEx its opinion, addressed to
FedEx, to the effect that: (A) the FAA Xxxx of Sale with respect to the Aircraft
being delivered by Flightlease to FedEx and the FAA Application for Registration
relating thereto have been duly filed with the FAA; (B) legal title to such
Aircraft is
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vested in FedEx or its designee, and (C) such Aircraft, including the Engines
conveyed to FedEx in connection with such Aircraft, is free and clear of all
Liens as may be recorded with the FAA, other than Liens arising by, through or
under FedEx or its designee, if any, that has taken title to the Aircraft. Such
opinion may be subject to the type of assumptions and qualifications regularly
included by experienced FAA counsel in similar opinions;
(viii) To facilitate the Delivery of each Aircraft, Flightlease may
deliver to the law firm of Xxxxxxxxx, Xxxxxx & Xxxxxxxx the documents
contemplated in Section 3.03(ii) and (vi) of this Agreement. The referenced
documents shall be held in escrow by such law firm pending Flightlease's express
authorization to deliver the Warranty Xxxx of Sale and the assignment of
warranties to FedEx and to deliver the FAA Xxxx of Sale to the FAA for
recordation purposes. The fees and expenses of Xxxxxxxxx, Xxxxxx & Xxxxxxxx
which are solely related to the escrow procedure and FAA filing set forth in
this Section 3.03(viii) shall be paid by FedEx; and,
(ix) Not more than thirty (30) days following the Delivery of each
Aircraft, FedEx shall pay Flightlease for the fuel on board the Aircraft at
Delivery as reflected on the applicable Aircraft Delivery Receipt.
Section 3.04. Casualty Aircraft. If, before the Delivery Date of any
Committed Delivery (as defined below), one or more Aircraft are designated as a
"total loss" by Flightlease's insurers and such insurers pay to Flightlease the
full insured value of such Aircraft or so designated by the insurers to the
predecessor in title to the LTU Aircraft prior to Flightlease acquiring title to
the LTU Aircraft (each a "Casualty Aircraft"), then Flightlease shall designate
or re-designate other Aircraft in order to deliver an Aircraft to FedEx for each
Scheduled Delivery Date; provided, however, that notwithstanding any such
designation, one Committed Delivery per each such Casualty Aircraft shall
automatically terminate in reverse chronological order of Scheduled Delivery
Dates. If a Committed Delivery is terminated under this Section 3.04,
Flightlease and FedEx shall have no further obligation to sell or purchase any
Aircraft with respect to such Committed Delivery. For purposes of this Section
3.04, the term "Committed Delivery" shall mean a commitment to sell and deliver
Aircraft whether or not a particular Aircraft had been designated for such
delivery.
Section 3.05. Aircraft Subject to Damage But Not a Casualty Aircraft. (a)
If an Aircraft which has been designated for delivery to FedEx on a particular
Scheduled Delivery Date sustains any damage and such damage can be repaired such
that the Aircraft can be tendered for Delivery on the date (the "Partial
Casualty Delivery Date") that is the later to occur of (i) the Scheduled
Delivery Date with respect to such Aircraft or (ii) the date which is not more
than two (2) weeks after the occurrence of such damage or partial destruction,
Flightlease shall notify FedEx in writing of such occurrence and whether
Flightlease elects (i) at Flightlease's sole cost and expense, to repair the
damaged Aircraft so that it will be in Delivery Condition within such two (2)
week period, or (ii) to substitute another Aircraft, if any, for the damaged
Aircraft to be delivered not less than two (2) weeks after the original
Scheduled Delivery Date. Any repair required by damage to the Aircraft shall
not (i) impose any restrictions on the FOCA-certified limitations, performance
or operation as set forth in the Manufacturer's FAA-approved Airplane Flight
Manual for the Aircraft or (ii) materially impair the fuel mileage performance
of the Aircraft or (iii) increase the empty weight of the Aircraft by more than
350 pounds.
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(b) Any delay in the Delivery of an Aircraft within the two (2) week
period set forth in Section 3.05(a) shall be considered an Excusable Delay and
shall not constitute an Event of Default hereunder.
Section 3.06. Delivery Condition. (a) At the time of the tender of an
Aircraft by Flightlease to FedEx in connection with its Delivery, the Aircraft
shall be in the following condition:
(i) The Aircraft (including installed Engines delivered with the
Aircraft) shall meet the following standards:
A. Transition Maintenance shall have been accomplished on each
Aircraft (provided that FedEx has delivered to Flightlease the work
cards required for such check not less than sixty (60) days prior to
the applicable Scheduled Delivery Date for the Aircraft) as required
to include each Aircraft on FedEx's Operations Specification.
B. Each component or part of the Aircraft which has a hard time
(hour, calendar or cycle) limit to restoration (including the APU, but
excluding the landing gear) will have at least *
hours, * cycles or
* months (whichever is the applicable limiting factor) remaining to
operate until its next scheduled restoration or removal.
C. Each Engine delivered with an Airframe hereunder shall be subject
to the following conditions:
(1) have not more than * flight cycles since its last complete
Overhaul in accordance with SR Technics' PW 4000 Engine
Reliability Program (ERPVI);
(2) each life-limited part shall have at least *
of its cycles remaining as specified by the manufacturer's engine
manual; provided, however, FedEx agrees to accept up to twelve
(12) Engines where each Life Limited Part has no less than *
of its cycles remaining subject to financial compensation to
FedEx by Flightlease based upon the Xxxxx & Xxxxxxx parts price
catalog current at the time of the applicable Engine Delivery to
FedEx, all as more particularly set forth in Exhibit L to this
Agreement;
(3) no Engine shall be subject to special surveillance or
inspection conditions which reduces the maintenance intervals
below those of SR Technics' approved engine maintenance program,
except in the case of either (i) an industry-wide mandatory
inspection which cannot be terminated, or (ii) acceptance and
agreement by FedEx; additionally, the intervals between scheduled
borescopes shall not be less than every *.
D. landing gear shall have been overhauled not more than six (6)
years prior to each applicable Aircraft Delivery.
*Blank space contained confidential information which has been filed separately
with the Securities and Exchange Commission pursuant to Rule 24b-2 under the
Securities Exchange Act of 1934.
11
E. each Aircraft shall be delivered with an export certificate of
airworthiness issued by the FOCA.
F. each Aircraft shall be certificated to operate CATIIIB.
G. each Aircraft shall be in compliance with all Airworthiness
Directives and mandatory service bulletins issued by the FOCA, the FAA
and the applicable Manufacturer.
If the delivery condition set forth in paragraph (C)(1) above is
less than * flight cycles since its last complete Overhaul in
accordance with SR Technics' PW 4000 Engine Reliability Program, then
the per Aircraft Purchase Price may be increased, all as more
particularly provided in Exhibit I.
The failure of the Aircraft being delivered to FedEx to meet the standards
in this Section 3.06 when tendered for delivery shall give FedEx the right
to refuse to accept delivery of the Aircraft.
(ii) Each Airframe together with each Engine and all component
parts of each Aircraft presented to FedEx for Delivery shall have been
continually maintained on a non-discriminatory basis, consistent with the
Swissair Maintenance Program and to an equal standard with all other
similar aircraft in Flightlease's fleet. The foregoing sentence shall be
applicable to the LTU Aircraft once Flightlease or its designee acquires
legal title to such aircraft.
(iii) The Aircraft, together with each Engine conveyed to FedEx at
the time of the Delivery of the Aircraft, and the APU shall be in
compliance with the Swissair Maintenance Program, the Aircraft shall be
Airworthy and the Aircraft Records relating to such Aircraft, Engines and
APU shall be in compliance with the Swissair Maintenance Program and the
applicable FARs requiring the maintenance of such Aircraft Records. At the
Scheduled Delivery Date, no deferred or carryover maintenance items shall
exist with respect to the Aircraft, and all temporary repairs to the
Aircraft shall have been made permanent and all temporary repairs to the
Aircraft shall have been made permanent repairs in accordance with SRM
Category A or Category B; provided, however, no Category B inspection
interval shall be less than * hours or *
cycles.
(iv) The delivery of any Engine or other Xxxxx & Xxxxxxx XX0000 or
PW4462 engine installed on an Aircraft upon its Delivery shall be subject
in all respects to Section 3.03.
(v) The Aircraft shall be in a configuration which complies with
Swissair's operating specifications for XxXxxxxxx Xxxxxxx Model MD-11
aircraft at such time, except to the extent that any discrepancies or
deviations from such operating specifications shall result from the removal
of Passenger Parts from the Aircraft.
*Blank space contained confidential information which has been filed separately
with the Securities and Exchange Commission pursuant to Rule 24b-2 under the
Securities Exchange Act of 1934.
12
(vi) The Aircraft (including the Engines to which title is
conveyed therewith) and each Spare Engine shall be free of all Liens.
(vii) Prior to the delivery of the Aircraft, Flightlease shall have
stripped from the Aircraft any insignia, trademark or tradename on the
Aircraft identifying the Aircraft as a Swissair aircraft or that of any
other lessee or operator.
(viii) Prior to the delivery of an Aircraft Flightlease shall have
received from FedEx a listing of loose equipment and other passenger
interior parts which are not required by FedEx for its operation of the
Aircraft in a cargo configuration all of which Flightlease may retain at no
cost.
(b) EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, THE
AIRCRAFT SHALL BE DELIVERED BY FLIGHTLEASE AND ACCEPTED BY FEDEX "WHERE IS", "AS
IS".
(c) Flightlease shall not be responsible for compliance with any
Airworthiness Directive outstanding with respect to any Airframe on the
Scheduled Delivery Date for such Aircraft if the final date for compliance with
such Airworthiness Directive is after such date, provided that Flightlease shall
not discriminate against any of the Aircraft in connection with its compliance
with Airworthiness Directives applicable to the XxXxxxxxx Xxxxxxx Model MD-11
aircraft in its fleet. With respect to any Engine, no Airworthiness Directive
shall be outstanding which requires termination within *
or * , whichever is most limiting, from the applicable
Scheduled Delivery Date.
(d) Flightlease will require any lessee of an Airframe that may be
delivered to FedEx to comply with any Airworthiness Directive applicable to such
Aircraft in the same manner as Flightlease complies with such Airworthiness
Directive with respect to the Aircraft in its fleet. With respect to any
Engine, no Airworthiness Directive shall be outstanding which requires
termination within * or * ,
whichever is most limiting, from the applicable Scheduled Delivery Date.
(e) With respect to any Aircraft, Flightlease shall not have complied with
or terminated any Airworthiness Directive applicable to either XxXxxxxxx Xxxxxxx
Model MD-11 airframes and the accessories thereto or Xxxxx & Xxxxxxx XX0000 or
PW4462 engines by the use of FAA-approved alternative means of compliance,
unless FedEx expressly approves compliance with or termination of such
Airworthiness Directive by such alternative means or FedEx's then current FAA-
approved maintenance program permits compliance with or termination of such
Airworthiness Directive by such alternative means of compliance.
Section 3.07. Aircraft Delivery Certificate; Engine Delivery Certificate.
Subject to any discrepancies from the Delivery Condition expressly noted by the
Parties in the applicable Aircraft Delivery Certificate, FedEx's execution and
delivery of an Aircraft Delivery Certificate with respect to an Aircraft as to
which a Delivery occurs shall be a binding acknowledgment and agreement by FedEx
that the Aircraft delivered was in the Delivery Condition upon its Delivery to
FedEx. Subject to any discrepancies from the delivery conditions set forth in
Section 3.06 that are applicable solely
*Blank space contained confidential information which has been filed separately
with the Securities and Exchange Commission pursuant to Rule 24b-2 under the
Securities Exchange Act of 1934.
13
to Engines that are expressly noted by the Parties in the applicable Engine
Delivery Certificate, FedEx's execution and delivery of an Engine Delivery
Certificate with respect to an Engine or Spare Engine which is delivered to
FedEx by Flightlease shall be a binding acknowledgment and agreement by FedEx
that such Engine or Spare Engine, as the case may be, was in the condition
required by Section 3.06 upon its delivery to FedEx by Flightlease.
Section 3.08. Liability. FEDEX HEREBY RELEASES FLIGHTLEASE FROM AND
FLIGHTLEASE SHALL NOT BE LIABLE FOR ANY DEFECT, KNOWN OR UNKNOWN, LATENT OR
PATENT, IN SUCH AIRCRAFT, THE ENGINES, ANY PART OR COMPONENT OF SUCH AIRCRAFT
AND ANY SPARE ENGINE OR SPARE PART DELIVERED TO IT OR FOR ANY ACTUAL, INDIRECT,
SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES SUSTAINED BY
FEDEX AS A RESULT OF ANY SUCH DEFECT, INCLUDING, WITHOUT LIMITATION, LOSS OF
REVENUE, LOSS OF USE OF THE AIRCRAFT, THE ENGINES, THE SPARE ENGINES, THE SPARE
PARTS OR ANY INTERRUPTION IN FEDEX'S BUSINESS RESULTING FROM OR OCCASIONED BY
FEDEX'S INABILITY TO USE THE AIRCRAFT, THE ENGINES OR THE SPARE ENGINES EXCEPT
AS EXPRESSLY SET FORTH HEREIN.
Section 3.09. Title and Risk of Loss. (a) Concurrently with each
Delivery of an Aircraft (or Spare Engine or Spare Part, as the case may be) and
after receipt by Flightlease of the Purchase Price thereof but not prior
thereto, title to, and risk of loss of, damage to or destruction of such
Aircraft (or Spare Engine or Spare Part, as the case may be) shall pass from
Flightlease to FedEx. FedEx shall not, by virtue of this Agreement acquire any
insurable or other ownership interest in an Aircraft or Spare Part or Spare
Engine prior to the Delivery thereof by Flightlease to FedEx.
(b) Upon Delivery of an Aircraft and subject to Section 3.03(ix) and
Flightlease's receipt of the applicable Aircraft Purchase Price, FedEx shall
take title to any fuel on board of the Aircraft.
ARTICLE 4
SPARE ENGINES; AIRCRAFT SIMULATOR; SPARE PARTS
Section 4.01. Obligation to Sell Spare Engines; Spare Engine Purchase
Price; and Delivery Condition. (a) Flightlease will sell to FedEx and FedEx
shall purchase from Flightlease eight (8) Xxxxx & Xxxxxxx PW4462 engines, each
in full QEC configuration in accordance with the Xxxxx & Whitney powerplant
Buildup Manual 51A096-1963 and two (2) fully-functional low profile transport
stands. The engine build (wing or tail) for Spare Engines shall be defined by
Flightlease; provided, however, Flightlease will deliver a minimum of three (3)
Spare Engines in the tail configuration. The Spare Engines shall be sold to
FedEx on each of the dates set forth on Exhibit A and shall be transported on a
fully-functional low profile transport stand. Not less than thirty (30) days
prior to each of the dates set forth on Exhibit A, Flightlease shall deliver to
FedEx a Spare Engine Designation, the form of which is attached as Exhibit H,
designating the Spare Engine to be delivered to FedEx on the applicable Delivery
Date. Concurrent with the Delivery of a Spare Engine to FedEx, each of
Flightlease and FedEx shall execute and deliver to the other a Spare Engine
Delivery Certificate. The engine stand delivered with the first Spare Engine
shall be retained by FedEx. The second Spare Engine to be delivered to FedEx
will be shipped on a transport stand
14
which must be returned to Flightlease each time for shipment of the next Spare
Engine until FedEx retains the engine stand with delivery of the last Spare
Engine.
(b) The Purchase Price for each Spare Engine shall be *
and each Spare Engine shall comply with the delivery conditions set
forth in Subsections 3.06(a)(i)(C)(1) through (3) and Subsections 3.06(c) and
(d) of this Agreement and FedEx shall have the right to borescope each Spare
Engine under the provisions set forth in Section 3.02(a) of this Agreement;
provided, however, if any Spare Engine fails to meet the conditions specified in
Section 3.06(a)(i)(C)(1) of this Agreement, then the Spare Engine Purchase Price
may be increased or decreased, as applicable, all in accordance with the formula
set forth in Exhibit I.
Section 4.02. Intentionally Omitted..
Section 4.03. Obligation to Sell MD-11 Full Flight Aircraft Simulators.
Flightlease hereby acknowledges that it has agreed to sell or cause to be sold
to FedEx two (2) MD-11 full flight aircraft simulators bearing manufacturer's
serial numbers 5 and 6 . Simulator bearing manufacturer's serial number 6 shall
be delivered to FedEx not later than October 31, 1999 and the simulator bearing
manufacturer's serial number 5 shall be delivered to FedEx at a mutually
agreeable date in 2006, but in any event not later than three (3) months prior
to the last Scheduled Delivery Date under this Agreement. The purchase price
for the simulator bearing manufacturer's serial number 6 shall be
* and the purchase
price for the simulator bearing manufacturer's serial number 5 shall be
* , all upon the terms and conditions as more
particularly set forth in that certain Aircraft Simulator Purchase Agreement, a
copy of which is attached as Exhibit M to this Agreement.
Section 4.04. Spare Parts List. Within nine (9) months of the date of
execution of this Agreement, Flightlease will deliver to FedEx a Spare Parts
list (the "Spares List") which will include all Spare Parts held by Flightlease,
SR Technics and Swissair in their respective inventories as of the actual date
of delivery to FedEx of the Spares List. Further, Flightlease agrees to update
the Spares List and deliver a copy of the same to FedEx within nine (9) months
after Flightlease's acquisition of the last LTU Aircraft. The Spares List and
any updates thereto will set forth for each type of Spare Part, SR Technics'
part numbers and the manufacturer's part numbers for each type of Spare Part,
the quantity of each type of Spare Part held by Flightlease, SR Technics and
Swissair at the date on which the Spares List or the update is delivered and the
average unit price for each type of Spare Part *
* and any update (the "Average Unit Price"). The Spares List and any
update will be provided via electronic storage media mutually acceptable to
Flightlease and FedEx. Flightlease will also provide FedEx with a hard copy of
the Spares List. and any updates thereto.
Section 4.05. Spare Parts Purchase Rights. On each date upon which
FedEx accepts Delivery of an Aircraft and upon not less than forty-five (45)
days' prior written notice to Flightlease, FedEx has the option but not the
obligation to purchase from Flightlease Spare Parts surplus to SR Technics'
requirements and having an aggregate Average Unit Price of up to
* for each Aircraft as to which Delivery occurs. Any written
notice to Flightlease shall include the date on which it will take delivery of
such Spare Parts, any particular mix of Spare Parts
*Blank space contained confidential information which has been filed separately
with the Securities and Exchange Commission pursuant to Rule 24b-2 under the
Securities Exchange Act of 1934.
15
that it desires to have in such lot of Spare Parts and the destination to
which the Spare Parts are to be shipped. FedEx shall pay to Flightlease an
amount not more than * of the aggregate Average
Unit Price for each such Spare Part acquired from Flightlease, all in accordance
with the payment procedures set forth in Section 2.03 of this Agreement.
Nothing herein shall restrain FedEx from purchasing Spare Parts from Flightlease
at the Average Unit Price at any time Flightlease offers Spare Parts for sale to
FedEx.
Section 4.06. Spare Parts Documentation. At the time of delivery of the
Spare Parts sold by Flightlease to FedEx, the Spare Parts delivered will be free
and clear of all Liens and will be in a serviceable condition. Such Spare Parts
will be packaged in accordance with ATA 300 specifications and be accompanied by
a Swissair or SR Technics Serviceable Tag (which shall specifically include
either an executed JAA Form 1 or an FAA Form 8130-3). Any Spare Parts delivered
to FedEx may be in a form modified by Flightlease in order to comply with
applicable Airworthiness Directives, manufacturer's service bulletins and
recommendations for modification by the respective manufacturers of such Spare
Parts. In addition, any Spare Parts delivered to FedEx by Flightlease shall be
in compliance with any outstanding Airworthiness Directives and service
bulletins required to be complied with or terminated on or before the delivery
date of such Spare Parts. Upon FedEx's request at the time of the delivery of a
particular Spare Part, Flightlease will also provide FedEx with the last Shop
Findings Report which Flightlease or SR Technics has in its records with respect
to that Spare Part if Flightlease or SR Technics regularly creates and retains
Shop Findings Reports for such type of Spare Part pursuant to the Swissair
Maintenance Program. FedEx will not be required to accept any Spare Part
tendered by Flightlease for sale to FedEx that does not meet the applicable
requirements of FAR (S)43.9. Flightlease will make no representations or
warranties with respect to the Spare Parts sold to FedEx pursuant to this
provision other than that such Spare Parts are free and clear of all Liens
(except as may arise or be created by FedEx or its successors-in-interest) and
are serviceable.
Section 4.07. FedEx's Right of First Refusal. At any time on or after
January 1, 2002, in the event any of Swissair, SR Technics or Flightlease
proposes to sell or otherwise transfer to a single purchaser (whether in a
single transaction or multiple stages which constitutes a single transaction)
Spare Parts which in the aggregate have an Average Unit Price of *
* or greater, then Flightlease, SR
Technics or Swissair, as applicable, shall submit a written offer to FedEx to
sell such Spare Parts to FedEx at a price equal to *
* of the Average Unit Price for each such Spare Part. The written
offer shall include a copy of the bonafide, third-party offer received by
Flightlease, SR Technics or Swissair, as applicable, and which such party
intends to accept. FedEx shall have forty-five (45) days from actual receipt of
the offer to accept such offer by giving the offering party (at all times with a
copy to Flightlease) written notice of its acceptance to purchase the Spare
Parts upon the terms and conditions contained in this Agreement and a mutually
acceptable delivery schedule. In the event FedEx either (i) rejects the written
offer specified above or (ii) fails to accept the offer within the forty-five
(45)day period specified above, then the right of first refusal shall expire and
Flightlease and Swissair shall have no further obligation whatsoever to FedEx
for the particular Spare Parts identified in the written notice.
Notwithstanding the foregoing, if FedEx receives a written offer from
Flightlease, SR Technics or Swissair, as applicable, for the sale of any one
particular Spare Part, then FedEx shall have seven (7) days from actual receipt
of the offer to accept such offer by
*Blank space contained confidential information which has been filed separately
with the Securities and Exchange Commission pursuant to Rule 24b-2 under the
Securities Exchange Act of 1934.
16
giving Flightlease written notice of its acceptance to purchase the Spare Part
upon the terms and conditions contained in this Agreement and a mutually
acceptable delivery schedule.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
Section 5.01. Flightlease's Representations and Warranties.
(a) Flightlease hereby represents and warrants to FedEx as follows:
(i) Organization and Existence. Flightlease is a corporation
validly existing, duly organized and in good standing under the laws of
Switzerland.
(ii) Due Authorization. Flightlease has all requisite corporate
power and authority to execute and enter into this Agreement and to perform
its obligations under this Agreement. The execution and delivery of this
Agreement by Flightlease and the performance by Flightlease of its
obligations hereunder have been duly authorized by all necessary corporate
action, do not knowingly contravene any law, statute, rule, regulation,
ordinance, writ, decree, judgment or injunction applicable to Flightlease,
or result in the violation of, the breach of, or a default or event of
default under any indenture, agreement, mortgage, contract, agreement,
other instrument or document, or any contractual restriction to which
Flightlease is a party, which is binding on it, which affects Flightlease
or by which its assets are bound or affected to the extent that the
contravention, violation or breach thereof or the occurrence of a default
or event of default thereunder would have a material adverse effect on the
ability of Flightlease to satisfy its obligations hereunder.
(iii) Approvals. All authorizations, consents, approvals, waivers
and other actions required by, and all notices to and filings required to
be made with, all governmental authorities and regulatory bodies for the
due execution, delivery and performance by Flightlease of this Agreement or
the consummation of the transactions contemplated by this Agreement have
been obtained.
(iv) Enforceability. This Agreement (including the joinder of SR
Technics to this Agreement) constitutes the legally valid and binding
obligations of Flightlease and SR Technics, enforceable against each of SR
Technics and Flightlease in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance or transfer, moratorium or other laws affecting
creditors' rights generally or general equitable principles, whether
applied in a court of law or in a proceeding at equity.
(b) With respect to any Aircraft, Spare Part and Spare Engine being
delivered, Flightlease hereby represents and warrants to FedEx that upon
Delivery of such Aircraft, Spare Part and Spare Engine:
17
(i) Except as expressly agreed to in writing by FedEx or as
expressly permitted in this Agreement, the Aircraft, the Spare Parts and
the Spare Engines shall be in the Delivery Condition on their respective
Delivery Dates;
(ii) Flightlease shall have full power and lawful authority to
convey its ownership interest in the Aircraft, Spare Parts and Spare
Engines to FedEx on their respective Delivery Dates; and
(iii) upon execution, filing and recordation with the FAA of the
FAA Xxxx of Sale and delivery of the Warranty Xxxx of Sale to FedEx, FedEx
shall have received good legal and beneficial title to the Aircraft,
including the Engines and Spare Engines, as applicable, conveyed to FedEx
in connection with such Aircraft, free and clear of all Liens, other than
Liens arising by, through or under FedEx or any designee of FedEx that has
taken title to the Aircraft or a Spare Engine.
(c) Prior to Flightlease's delivery to FedEx of any PW4460 Engines,
Flightlease will reasonably endeavor to upgrade all such PW4460 Engines to
PW4462 standard, subject to no significant additional cost to Flightlease.
(d) That each of the Xxxxx & Xxxxxxx PW4462 Engines acquired by Swissair
in 1997 and bearing MSN P733815, P733816, P733817, P733802, P733803, P733804,
P733799, P733800, and P733801 shall be Engines which are to be transferred and
sold to FedEx hereunder with Airframes to be selected by Flightlease; provided,
however, in all cases three of such engines shall be delivered to FedEx either
concurrently with or prior to Delivery of each Airframe bearing Manufacturer's
Serial Numbers 48540, 48634 and 48541. Notwithstanding the foregoing to the
contrary, if one or more of the Engines specified in this Section 5.01(d) are
subject to a "total loss" by Flightlease's insurers and such insurers pay to
Flightlease the full insured value of any such Engine(s), then Flightlease shall
designate in writing another Engine(s) to be delivered to FedEx. Any such
substitute Engine(s) proposed to be delivered to FedEx shall conform in all
respects to the conditions set forth in Section 3.06(a)(i)(C), Section 3.06(c)
and (d), and shall not have more total hours or total cycles than the Engine
that it is replacing.
Section 5.02. No Warranties. EXCEPT FOR WARRANTIES OF TITLE AND ANY
ASSIGNED MANUFACTURERS' WARRANTIES AND EXCEPT AS OTHERWISE EXPRESSLY SET FORTH
HEREIN, THE AIRCRAFT, THE SPARE PARTS, THE ENGINES AND THE SPARE ENGINES SHALL
BE PURCHASED "WHERE IS", "AS IS" AND WITHOUT WARRANTIES OR REPRESENTATIONS OF
ANY KIND, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER WITH RESPECT TO ANY
AIRCRAFT, THE ENGINES, THE SPARE PARTS OR THE SPARE ENGINES INCLUDING, BUT NOT
LIMITED TO: ANY OBLIGATION OR LIABILITY IN STRICT LIABILITY OR TORT; OR THE
CONDITION, DESIGN, QUALITY OR CAPACITY OF THE AIRCRAFT OR THE SPARE ENGINES OR
THEIR FITNESS FOR ANY PARTICULAR PURPOSE.
Section 5.03. FedEx's Representations. FedEx hereby represents and
warrants to Flightlease as follows:
18
(i) Organization and Existence. FedEx is a corporation validly
existing, duly organized and in good standing under the laws of the State
of Delaware.
(ii) Due Authorization. FedEx has all requisite corporate power
and authority to execute and enter into this Agreement and to perform its
obligations under this Agreement. The execution and delivery of this
Agreement by FedEx and the performance by FedEx of its obligations
hereunder have been duly authorized by all necessary corporate action, do
not knowingly contravene any law, statute, rule, regulation, ordinance,
writ, decree, judgment or injunction applicable to FedEx, or result in the
violation of, the breach of or a default or event of default under any
indenture, agreement, mortgage, contract, agreement, other instrument or
document, or any contractual restriction to which FedEx is a party, which
is binding on it, which affects FedEx or by which its assets are bound or
affected to the extent that the contravention, violation or breach thereof
or the occurrence of a default or event of default thereunder would have a
material adverse effect on the ability of FedEx to satisfy its obligations
hereunder.
(iii) Approvals. All authorizations, consents, approvals, waivers
and other actions required by, and all notices to and filings required to
be made with, all governmental authorities and regulatory bodies for the
due execution, delivery and performance by FedEx of this Agreement or the
consummation of the transactions contemplated by this Agreement have been
obtained.
(iv) Enforceability. This Agreement constitutes the legally valid
and binding obligation of FedEx, enforceable against FedEx in accordance
with its respective terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, insolvency, fraudulent conveyance
or transfer, moratorium or other laws affecting creditors' rights generally
or general equitable principles whether applied in a court of law or in a
proceeding at equity.
ARTICLE 6
ADDITIONAL DOCUMENTATION AND RECORDS;
TRANSLATION OF DOCUMENTATION AND RECORDS
Section 6.01. Additional Documentation and Records. Notwithstanding any
other provision in this Agreement, FedEx acknowledges that neither Flightlease
nor Swissair is an FAA Part 121 Operator of aircraft. Accordingly, except for
the matters set forth in Exhibit D and Section 4.06 which shall be delivered to
FedEx by Flightlease, if FedEx requires additional Aircraft documentation or
records then Flightlease hereby agrees to use its best efforts to promptly
procure and deliver such documentation or records to FedEx, but only to the
extent that they are in the possession of Flightlease, Swissair or any
subsequent operator of the Aircraft.
Section 6.02. Translation of Documentation and Records. In addition to
the items set forth in Exhibit D to this Agreement which will be delivered to
FedEx in the English language, Flightlease agrees to use its best efforts to
assist FedEx with the translation into the English language of any
19
additional documentation which is provided to FedEx by Flightlease and that is
required for the United States FAA certification of each Aircraft. Upon written
request by Flightlease, FedEx agrees to reimburse Flightlease for its actual,
reasonable costs for translation of additional documentation.
ARTICLE 7
ASSIGNMENT OF WARRANTIES, SERVICE LIFE POLICIES
AND PATENT INDEMNITIES
Section 7.01. Assignment of Warranties. At Delivery of each Aircraft and
Spare Engine, an Assignment of Assignable Warranties in the form of Exhibit G
shall be executed by Flightlease and delivered to FedEx pursuant to which
Flightlease will assign to FedEx, effective upon Delivery of such Aircraft or
Spare Engine, all of Flightlease's interests in any and all existing and
assignable warranties, service life policies and patent indemnities of
manufacturers and maintenance and restoration providers relating to such
Aircraft or Spare Engine. Further, upon FedEx's request, Flightlease shall (i)
give written notice to any such manufacturers and maintenance and restoration
providers of the assignment of such warranties, service life polices and patent
indemnities to FedEx, and (ii) take all such actions as may be reasonably
requested by FedEx in assisting FedEx in the enforcement of its rights pursuant
to this Article 7. Where such assistance provided under this Section 7.01 is
materially burdensome upon Flightlease or exposes Flightlease to a material
liability to third parties, such liability cost or expense shall be for the
account of FedEx.
ARTICLE 8
PAYMENT OF TAXES
Section 8.01. Payment of Taxes by FedEx. (a) Except as provided in
Section 8.01(b), any and all taxes, excises, duties and assessments whatsoever
(including any related penalty, interest or other additions to tax) ("Tax" or
"Taxes") arising out of the sale, transfer or delivery of the Aircraft, Engines,
Spare Parts or the Spare Engines under this Agreement, in any manner levied,
assessed or imposed by any government or subdivision or agency thereof having
jurisdiction, shall be the sole responsibility and liability of FedEx and FedEx
shall indemnify and hold Flightlease harmless from any and all such Taxes.
Subject to the provisions contained in Section 3.06 herein, Flightlease and
FedEx will cooperate in good faith and take such reasonable actions as are
practicable to minimize or, if possible, eliminate any such Taxes.
(b) The indemnity provided for in Section 8.01(a) shall not extend to any
of the following:
(i) Taxes based upon, measured by or with respect to the net
income, gross receipts in the nature of an income tax not in the nature of
a transfer tax, items of tax preference or minimum tax or excess profits,
capital, franchise, net worth or conduct of business or other similarly-
based taxes of Flightlease;
(ii) Taxes imposed on Flightlease that would not have been
imposed, but for the willful misconduct or gross negligence of Flightlease;
or
20
(iii) Taxes imposed by the country of Switzerland or any political
subdivision or taxing authority thereof or created thereunder; provided,
however, that in the case of value added tax (Mehrwertsteuer) or similar
Tax assessed in Switzerland ("VAT"), FedEx will, at Flightlease's expense,
take all action reasonably requested by Flightlease to recover such VAT
where it is able to do so and immediately to pay such recovered amounts, or
direct such recovered amounts, to Flightlease.
(c) With respect to any Tax which FedEx has assumed responsibility for
under this Article 8, FedEx shall either (i) pay at the delivery date for any
equipment or other personal property sold by Flightlease to FedEx, all sales or
other similar taxes payable with respect to the sale and/or purchase of such
Aircraft, Engines, Spare Parts or Spare Engines, respectively, or (ii) provide
to Flightlease an exemption certificate, resale certificate, or other evidence
reasonably acceptable to Flightlease that the sale and purchase of any Aircraft,
Engines, Spare Parts or Spare Engine is exempt from any such tax. Other
evidence includes, but is not limited to, a letter specifying the applicable
taxing authority's statute, regulation, rule or case law authority providing for
such exemption.
(d) If any Tax for which FedEx has assumed the responsibility for payment
pursuant to this Article 8 is levied, assessed or imposed upon Flightlease,
Flightlease shall promptly give FedEx notice of such levy, assessment or
imposition, whereupon FedEx shall promptly pay and discharge the same or, if
permitted by law, may contest or protest such liability before payment. If
Flightlease fails to notify FedEx, FedEx will be relieved of its indemnity
obligations under this Section 8.01 with respect to that Tax. Upon the written
request and at the sole expense of FedEx, Flightlease shall reasonably cooperate
with FedEx in contesting or protesting the validity or application of any such
Tax (including, but limited to, permitting FedEx to proceed in Flightlease's
name if required or permitted by law, provided, in each case, that such contest
does not involve, or can be separated from, the contest of any tax or other
issues unrelated to the transactions described in this Agreement). FedEx also
shall have the right to participate in any contest conducted by Flightlease with
respect to a Tax indemnifiable under this Article 8, including, without
limitation, the right to attend conferences with the taxing authority and the
right to review submissions to the taxing authority or any court to the extent
in the reasonable judgment of Flightlease, but only to the extent, such contest
does not involve, or can be separated from, the contest of any tax or issues
unrelated to the transactions contemplated in this Agreement. In the event
Flightlease shall receive a refund of all or any part of such Tax (including a
refund of interest and penalties, if any, in connection therewith) which FedEx
has paid and discharged, the amount of such refund shall promptly be remitted to
FedEx by Flightlease, less any expenses of Flightlease associated with
contesting and/or protesting the validity or application thereof which have not
been previously reimbursed by FedEx.
ARTICLE 9
EXCUSABLE DELAY
Section 9.01. Excusable Delay. Subject to Section 3.05, neither Party
shall be responsible to the other Party for any Excusable Delay in the discharge
and performance of its respective obligations and duties under this Agreement or
for any delay or failure in the discharge and performance of its respective
obligations and duties under this Agreement as a result of the action or
omission of the other Party.
21
ARTICLE 10
INDEMNIFICATION
Section 10.01. FedEx's Indemnification. From and after the Delivery of an
Aircraft, Spare Parts, Engines or Spare Engines to FedEx, FedEx shall defend,
indemnify and hold harmless Flightlease, its Affiliates and each of their
respective directors, officers, and employees (collectively the "Flightlease
Indemnitees") from and against all claims, demands, suits, causes of action,
obligations, liabilities, damages, losses and judgments, costs and expenses,
whether or not arising from the negligence of such indemnified parties, asserted
against any of them by reason of injury or death of any person, or by reason of
loss of or damage to property, including such Aircraft, Spare Parts, Engines and
Spare Engines, arising out of or in any manner connected with any of the
Aircraft, Spare Parts, Engines and Spare Engines, including, without limitation,
the purchase, sale, ownership, possession, use, operation, flight testing (if
the event giving rise to the Flightlease Indemnitees' right to indemnity
involves the Aircraft and occurs while a pilot who is an employee or an agent of
FedEx is in control of the Aircraft being flight tested), storage, maintenance,
financing, sale, lease or sublease of any Aircraft, Engine, Spare Engine or
Spare Part.
Section 10.02. Flightlease's Indemnification. Flightlease agrees to
defend, indemnify and hold harmless FedEx, its Affiliates, and each of their
respective directors, officers, and employees from and against all claims,
demands, suits, causes of action, obligations, liabilities, damages, losses and
judgments, costs and expenses, asserted against any of them by reason of any
claim adverse to FedEx's title to any Aircraft, Engine, Spare Part or Spare
Engine by any party claiming by or through Flightlease.
ARTICLE 11
INSURANCE
Section 11.01. Liability Insurance. Commencing with the delivery of the
first Aircraft to FedEx, FedEx shall maintain until the third (3rd) anniversary
of the Delivery Date of each Aircraft, with insurance carriers reasonably
acceptable to Flightlease, comprehensive airline liability insurance in an
amount not less than * which shall: include aircraft
liability, cargo liability, and comprehensive general liability insurance;
insure, inter alia, FedEx's indemnification obligations to the Flightlease
Indemnitees; and name the Flightlease Indemnitees as additional insureds. The
insurers shall waive any right of subrogation, set-off or counterclaim against
the Flightlease Indemnitees as to the coverage of the Flightlease Indemnitees,
breaches of representations and warranties by FedEx. In the event of
cancellation of or material change in the policy, such insurance shall continue
in force for the benefit of the Flightlease Indemnitees for at least thirty (30)
days after written notice to Flightlease.
Section 11.02. Hull Insurance. If FedEx, or any successor to FedEx's
interest in the Aircraft, maintains hull insurance on the Aircraft, FedEx shall
require its, or its successor's, hull insurers to waive any and all rights of
subrogation, set-off, counterclaim and deduction, whether by attachment or
otherwise, which they may have against the Flightlease Indemnitees, for any
loss, damage or destruction of the Aircraft.
*Blank space contained confidential information which has been filed separately
with the Securities and Exchange Commission pursuant to Rule 24b-2 under the
Securities Exchange Act of 1934.
22
Section 11.03. Insurance Certificates. Upon Delivery, FedEx shall furnish
Flightlease with insurance certificates certifying (a) that the policies of
insurance required by this Article 11 are in full force and effect (together
with required waivers of subrogation) and (b) that Flightlease shall be given
thirty (30) days' prior written notice by the insurers in the event of either
cancellation or material change in coverage or cancellation of the waivers of
subrogation, except in the event of war risk coverage, in which case the notice
period shall be seven (7) days or such other period as shall be customary in the
insurance market.
ARTICLE 12
DEFAULT AND REMEDIES
Section 12.01. Flightlease Events of Default. The following events shall
constitute Events of Default as to Flightlease:
(a) Flightlease shall fail to Deliver the Aircraft, Spare Parts or a Spare
Engine in accordance with the terms and conditions of this Agreement;
(b) Flightlease shall fail to perform any other covenant of Flightlease
contained in this Agreement, and such failure is not cured within five (5)
Business Days after written notice of such default is given by FedEx to
Flightlease or, if such failure cannot be cured within five (5) Business Days,
is not cured within ninety (90) days after receipt of such notice if Flightlease
promptly commences taking and diligently pursues all necessary actions to cure
such failure;
(c) If any representation or warranty made by Flightlease herein or made
in any statement or certificate furnished or required hereunder or in connection
with the execution and delivery of this Agreement, proves untrue in any material
adverse respect;
(d) If Flightlease shall file a voluntary petition in bankruptcy, shall be
adjudicated as bankrupt or insolvent, shall file any petition or answer seeking
any reorganization, composition, readjustment, liquidation or similar relief for
itself under any present or future statute, law or regulation, shall seek or
consent to or acquiesce in the appointment of any trustee, shall make any
general assignment for the benefit of creditors, or shall admit in writing its
inability to pay its debts generally as they become due; or
(e) If a petition shall be filed against Flightlease seeking any
reorganization, composition, readjustment, liquidation or similar relief under
any present or future statutes, law or regulation, and shall remain undismissed
or unstayed for an aggregate of ninety (90) days (whether or not consecutive),
or if any trustee, receiver or liquidator of either Party is appointed, which
appointment shall remain unvacated or unstayed for an aggregate of ninety (90)
days (whether or not consecutive).
Section 12.02. FedEx Events of Default. The following events shall
constitute Events of Default as to FedEx:
23
(a) FedEx shall fail to accept delivery and pay the Purchase Price for any
Aircraft, Spare Part or a Spare Engine tendered by Flightlease for Delivery to
FedEx in accordance with this Agreement;
(b) FedEx shall fail to perform any other covenant of FedEx contained in
this Agreement and such failure is not cured within five (5) Business Days after
written notice of such default is given by Flightlease to FedEx or, if such
failure cannot be cured within five (5) Business Days, is not cured within
ninety (90) days after receipt of such notice if FedEx promptly commences taking
and diligently pursues all necessary actions to cure such failure;
(c) If any representation or warranty made by FedEx herein or made in any
statement or certificate furnished or required hereunder or in connection with
the execution and delivery of this Agreement proves untrue in any material
adverse respect;
(d) If FedEx shall file a voluntary petition in bankruptcy, shall be
adjudicated as bankrupt or insolvent, shall file any petition or answer seeking
any reorganization, composition, readjustment, liquidation or similar relief for
itself under any present or future statute, law or regulation, shall seek or
consent to or acquiesce in the appointment of any trustee, shall make any
general assignment for the benefit of creditors, or shall admit in writing its
inability to pay its debts generally as they become due; or
(e) If a petition shall be filed against FedEx seeking any reorganization,
composition, readjustment, liquidation or similar relief under any present or
future statutes, law or regulation, and shall remain undismissed or unstayed for
an aggregate of ninety (90) days (whether or not consecutive), or if any
trustee, receiver or liquidator of either party is appointed, which appointment
shall remain unvacated or unstayed for an aggregate of ninety (90) days (whether
or not consecutive).
Section 12.03. Remedies. (a) Upon the occurrence of an Event of Default
as to Flightlease, FedEx (i) shall, at its option, be relieved from its
obligations arising thereafter to accept delivery of and pay the Purchase Price
for the Aircraft or to purchase any Spare Parts or Spare Engines from
Flightlease, (ii) may, at its option, terminate this Agreement, and (iii) shall
have all other rights and remedies available to it at law and in equity,
including, but not limited to, the equitable remedy of specific performance.
(b) Upon the occurrence of an Event of Default as to FedEx, Flightlease
(i) may, at its option, be relieved from its obligations arising thereafter to
deliver any Aircraft or sell any Spare Part or Spare Engines to FedEx, (ii) may,
at its option, terminate this Agreement and (iii) shall have all other rights
and remedies available to it at law and in equity, including, but not limited
to, the equitable remedy of specific performance.
Section 12.04. Limitation of Damages. NEITHER PARTY SHALL HAVE ANY
LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR
EXEMPLARY DAMAGES SUSTAINED BY THE OTHER PARTY ARISING OUT OF THE FIRST PARTY'S
DEFAULT UNDER THE TERMS OF THIS AGREEMENT. EACH PARTY HEREBY IRREVOCABLY WAIVES
ANY REMEDIES IT MAY HAVE AS A RESULT OF ITS
24
INCURRENCE OF ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR
EXEMPLARY DAMAGES ARISING OUT OF A DEFAULT BY THE OTHER PARTY UNDER THIS
AGREEMENT.
ARTICLE 13
PERFORMANCE OF OBLIGATIONS
Flightlease acknowledges and agrees that notwithstanding the references in
this Agreement to any of its affiliated corporations (including without
limitation Swissair, SAirGroup and SR Technics) or the joinder of SR Technics to
this Agreement, that the obligations, covenants, agreements and commitments
hereunder are solely those of Flightlease. Flightlease further acknowledges and
agrees that FedEx shall not have to pursue its rights against any other party in
order to cause the performance of the obligations and commitments contemplated
hereunder.
ARTICLE 14
CONDITIONS
Section 14.01. Conditions to FedEx's Obligations. The obligation of FedEx
to accept an Aircraft and purchase any Spare Parts or Spare Engines from
Flightlease shall be subject to the following conditions precedent:
(a) The Aircraft and Spare Engines shall be Airworthy and shall be free
and clear of all defects and discrepancies and shall have been continuously
maintained in accordance with Swissair's Maintenance Program to the same
standards (exclusive of interior furnishing) as all other aircraft in
Flightlease's fleet. The foregoing sentence shall be applicable to the LTU
Aircraft once Flightlease or its designee acquires legal title to such aircraft.
(b) receipt by FedEx of a satisfactory opinion of counsel to Flightlease,
which opinion may be rendered by in-house counsel, regarding due authorization,
no conflicts with organization documents, agreements and instruments to which
Flightlease and SR Technics are a party or their assets are bound or any court
order, and enforceability of this Agreement and any ancillary agreements, and
such other matters as may be reasonably requested. In such opinion, such
counsel may render their opinions based solely on the federal and corporate laws
of Switzerland. Such opinion may be subject to the type of assumptions and
qualifications regularly included by experienced corporate counsel in similar
opinions;
(c) the execution of this Agreement and consummation of the transactions
contemplated by it shall not breach, or result in a default under any statute,
treaty, regulation or other regulatory directive, foreign or domestic, binding
upon FedEx;
(d) FedEx shall not be unable to perform its obligations with respect to
one or more of the Aircraft as the result of the occurrence of a Force Majeure
Event or other Excusable Delay (other than a Force Majeure Event or other
Excusable Delay which is directly a result of the fault, act or omission of
Flightlease); and
(e) the Aircraft, the Spare Parts and the Spare Engines shall be in
Delivery Condition.
25
Section 14.02. Conditions to Flightlease's Obligations. The obligation of
Flightlease to deliver any Aircraft and sell any Spare Parts and Spare Engines
to FedEx shall be subject to the following conditions precedent:
(a) compliance by FedEx with all applicable laws and regulations of all
jurisdictions which are applicable to the transactions contemplated hereby;
(b) receipt by Flightlease of a satisfactory opinion of counsel to FedEx,
which opinion may be rendered by in-house counsel, regarding due authorization,
no conflicts with organizational documents, agreements and instruments to which
FedEx is a party or its assets are bound or any court order, and enforceability
of this Agreement and any ancillary agreements, and such other matters as may be
reasonably requested. In such opinion, such counsel may assume that the
documents, agreements and instruments are governed by Tennessee law and render
their opinions based solely on the federal laws of the United States, the
corporate laws of the State of Delaware and the laws of the State of Tennessee.
Such opinion may be subject to the type of assumptions and qualifications
regularly included by experienced corporate counsel in similar opinions;
(c) the execution of this Agreement and consummation of the transactions
contemplated by it shall not breach, or result in a default under, any statute,
treaty, regulation or other regulatory directive, foreign or domestic, binding
upon Flightlease; and
(d) Flightlease shall not be unable to perform its obligations with
respect to one or more of the Aircraft as the result of the occurrence of a
Force Majeure Event, other Excusable Delay which is directly a result of the
fault, act or omission of FedEx.
ARTICLE 15
CONFIDENTIALITY
Section 15.01. Confidentiality Obligations. Each of Flightlease and FedEx
agrees to keep the economic terms of this Agreement confidential and not to
disclose, transfer, use or otherwise make available such information to any
third party without the prior written consent of the other Party. Each of
Flightlease and FedEx agrees to exercise care that is at least equal to the care
it uses to protect the confidentiality of its own confidential and proprietary
information of similar importance to prevent the disclosure to outside parties
or unauthorized use of such information. Notwithstanding the above, Flightlease
and FedEx (including the corporations of which each is a direct or indirect
wholly-owned subsidiary) may disclose confidential information to their
respective officers, directors, employees and/or tax, legal and other
professional advisors (specifically including financial advisors) and
institutions providing finance to either Flightlease or FedEx, each of whom is
informed of the confidential nature of the information and of the restrictions
on disclosure and use of the information as set forth herein and may disclose
confidential information as required by law (including, but not limited to,
pursuant to a request by the Internal Revenue Service or a federal, state or
cantonal taxing authority for information or as may be required to enforce a
Party's rights under this Agreement in a court of law). In the event of a
breach of or a default under the terms of this Section 15.01, the non-breaching
Party shall be entitled to pursue and seek all legal and
26
equitable remedies available to it, including the equitable remedies of specific
performance and injunction, which remedies shall not be deemed exclusive, but
shall be cumulative. If either of the Parties desire to make a press release,
information release or otherwise provide information to any third party for
release to the news media with respect to the transactions contemplated by this
Agreement, subject to its obligations under applicable securities laws, the
Party desiring to make the release or provide the information shall provide the
text of such release or information to the other Party for its review at least
five (5) Business Days in advance of the proposed distribution of the release or
information. Subject to legal requirements and other legally compelled
disclosures, each Party shall obtain the prior written consent of the other
Party to release of any such news or press release or information and the text
of any written or oral statement or any release of information to be provided to
the news media and the timing of the distribution of such information.
ARTICLE 16
FURTHER ASSURANCES
Section 16.01. Further Assurances. (a) Flightlease recognizes that in the
course of (i) the conversion of the Aircraft from a passenger configuration to a
cargo configuration and (ii) the transition of the Aircraft from the Swissair
Maintenance Program to FedEx's FAA-approved maintenance program, issues will
arise in which Flightlease may possess information and expertise regarding the
Aircraft that FedEx would find useful, Aircraft Records or Engine Records that
may be necessary to the transition of the Aircraft to FedEx's maintenance
program, and other knowledge that will be useful to FedEx in connection with
such activities. Subject to any restrictions on the disclosure of confidential
information and consistent with the protection of its confidential information
and proprietary information, including, without limitation, any trade secrets,
Flightlease agrees to cooperate with FedEx and to assist FedEx by providing such
confidential, proprietary and trade secret information pursuant to a mutually
acceptable non-disclosure agreement and any non-confidential information
regarding the Aircraft that Flightlease may possess which would be helpful to
FedEx in achieving its goals. Flightlease also agrees to meet with
representatives of FedEx and the FAA at mutually agreeable times and locations
to discuss the Aircraft and Swissair's maintenance of the Aircraft. In no event
shall the assistance to be provided by Flightlease to FedEx require the
incurrence by Flightlease of more than nominal expense.
(b) Flightlease will provide to FedEx a supplemental type certificate (a
"STC") and the substantiating data covering any modification of an Aircraft or
Engine or Spare Engine that is delivered to FedEx by Flightlease pursuant to
this Agreement if that modification is designed by Flightlease. FedEx may use
such STC to make the same modification covered by the STC to any other XxXxxxxxx
Xxxxxxx Model MD-11 aircraft owned and operated by FedEx. Flightlease will not
charge FedEx for the use of such a STC by FedEx on any of FedEx's XxXxxxxxx
Xxxxxxx Model MD-11 aircraft.
ARTICLE 17
MISCELLANEOUS
Section 17.01. Notices. Unless otherwise specified in writing by the
affected Party, all notices, approvals, requests, consents and other
communications given pursuant to this Agreement shall be in writing in the
English language and shall be deemed effective when received if hand-
27
delivered, sent by facsimile (which facsimile shall be confirmed by the executed
counterpart thereof being sent by another means for giving notice specified
herein), Federal Express priority service or sent by United States or Swiss
certified or registered mail, addressed as follows:
If to Flightlease: Flightlease, LTD
DYPT
XX-0000 Xxxxxx-Xxxxxxx XXXXXXXXXXX
Attention: Head of Aircraft Trading
Telephone No. 00-0-000-0000
Facsimile No. 00-0-000-0000
If to SR Technics: SR Technics
c/o Flightlease, LTD
DYPT
XX-0000 Xxxxxx-Xxxxxxx XXXXXXXXXXX
Attention: Head of Aircraft Trading
Telephone No. 00-0-000-0000
Facsimile No. 00-0-000-0000
If to FedEx: Federal Express Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: Vice President, Fleet
Development and Acquisitions
Telephone No. (000) 000-0000
Facsimile No. (000) 000-0000
Section 17.02. Exhibits. All exhibits described in this Agreement shall
be deemed to be incorporated and made a part of this Agreement, except that if
there is any inconsistency between this Agreement and the provisions of any
Exhibit, the provisions of this Agreement shall control.
Section 17.03. Assignments. This Agreement and the rights and obligations
hereunder, may be assignable or delegable in whole or in part, absolutely or by
way of security, by either Party upon prior written notification to the non-
assigning Party PROVIDED, HOWEVER, the assigning Party shall remain primarily
liable for its obligations under this Agreement, with such continuing
obligations to be evidenced by such agreements and instruments as the non-
assigning Party may reasonably request.
Section 17.04. No Offset. The amounts payable by either Party to the
other Party under this Agreement shall be absolute and unconditional and shall
not be subject to any abatement, reduction, set off, defense, counterclaim or
recoupment of or by the Party obligated to make such payment as a result of any
claim, cause of action or other rights that such Party may have against the
other Party.
Section 17.05. Binding Effect. This Agreement and the rights and
obligations of the Parties hereunder, shall be binding upon and inure to the
benefit of each of the Parties, their respective permitted successors, assigns
and legal representatives.
28
Section 17.06. Applicable Law and Jurisdiction. This Agreement shall be
governed by and construed in accordance with the internal laws of the State of
New York, without regard to the laws of conflict of laws of the State of New
York. Further, the Parties irrevocably consent to the exclusive jurisdiction of
the appropriate United States District Court located in the State of New York
for the resolution of any disputes which may arise hereunder.
Section 17.07. Entire Agreement. This Agreement shall constitute the
entire agreement between the Parties with respect to the transactions
contemplated herein and shall not in any manner be supplemented, amended or
modified except by a written instrument executed on behalf of each of the
Parties by their duly authorized representatives.
Section 17.08. Expenses. Each of the Parties hereto shall be responsible
for its own costs and expenses incurred in connection with the negotiation,
preparation and execution of this Agreement.
Section 17.09. Counterparts. This Agreement may be executed in separate
counterparts, each of which when so executed shall be deemed to be an original
and which, taken together, shall constitute one and the same instrument.
Section 17.10. Brokers' Commissions. Each of FedEx and Flightlease
represent to the other Party that each has negotiated this Agreement directly
with the other and that no brokers are entitled to a commission as a result of
their actions. FedEx and Flightlease agree to indemnify and hold one another
harmless from and against all claims, demands, liabilities, damages, losses or
judgments which may be suffered by the other and which arise out of the actions
of or employment by the other with any agent or broker.
Section 17.11. No Remedy Exclusive. Except as expressly set forth herein,
no remedy herein conferred upon or reserved to a Party herein is intended to be
exclusive of any other available remedy or remedies, but each and every such
remedy shall be cumulative and in addition to every other remedy given under
this Agreement or now or hereafter existing at law, in equity or by statute.
Except as expressly set forth herein, no delay or omission to exercise any right
or power accruing upon any default shall impair any such right or power or be
construed to be a waiver thereof, but any such right and power may be exercised
from time to time and as often as may be deemed expedient. In order to entitle
a Party to exercise any remedy reserved to it in this Agreement, it shall not be
necessary to give any notice other than such notice as may be herein expressly
required.
Section 17.12. Severability. If any provision of this Agreement or any
application of any provision of this Agreement to any person or circumstances
shall be invalid or unenforceable to any extent, the remainder of this Agreement
and the application of that provision to other persons or circumstances shall
not be affected by the invalidity or unenforceability of the provision generally
or as to any person or circumstance. The other provisions of this Agreement
shall be enforced to the greatest extent permitted by applicable law and in a
manner to give effect to the intent of the Parties to the greatest extent
possible.
29
Section 17.13 Survival of Provisions. The rights, benefits and
obligations of the Parties under Section 3.08, Section 3.09, Article 5, Article
6, Article 8, Article 10, Article 11, Article 12, Article 13, Article 15,
Article 16, and Sections 17.06 and 17.10 shall survive the completion of
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
30
performance of this Agreement and its termination or expiration and continue in
full force and effect thereafter in accordance with their respective terms.
IN WITNESS WHEREOF, Flightlease and FedEx do hereby execute this Agreement
on the day and year first above written.
FEDERAL EXPRESS CORPORATION
Approved By:/s/Xxxxx X. Xxxxxx
As to Legal Form --------------------------------------
KHS 4-21-98 Name: Xxxxx X. Xxxxxx
Legal Dept Title: Vice President-Fleet Development &
Acquisitions
FLIGHTLEASE, LTD
By: /s/ Ph. Bruggisser
--------------------------------------
Name:
Title: Chairman
By: /s/ Xxxxx Xxxxx
--------------------------------------
Name:
Title: Exec. VP Aircraft
Purchasing & Sales
JOINDER OF SR TECHNICS
In consideration of the purchase of the Aircraft by FedEx, SR Technics hereby
executes and delivers this Agreement to FedEx and to Flightlease in order to
evidence its consent to the matters set forth in this Agreement as such matters
relate to SR Technics and agrees to be unconditionally and absolutely be bound
by the terms and conditions set forth therein, but only to the extent such
matters directly relate to SR Technics.
SR TECHNICS
By: /s/ X. Xxxxxxxx
--------------------------------------
Name:
Title: V P Engine Maintenance
/s/ X. Xxxxx
X. Xxxxx
V P Material 5/29/98
31
EXHIBIT A
TO THE AIRCRAFT SALES AGREEMENT BETWEEN
FEDERAL EXPRESS CORPORATION ("FEDEX") AND
FLIGHTLEASE, LTD ("FLIGHTLEASE")
DATED AS OF APRIL 21, 1998 (THE "AGREEMENT")
AIRCRAFT SUBJECT TO AIRCRAFT PURCHASE AGREEMENT
The XxXxxxxxx Xxxxxxx Model MD-11 aircraft bearing the following Manufacturer's
Serial Numbers: 48443, 48444, 48445, 48446, 48447, 48448, 48452, 48453, 48454,
48455, 48456, 48457, 48539, 48540, 48634, 48484, 48485, 48486, 48538, 48541
SPARE ENGINES SUBJECT TO AIRCRAFT PURCHASE AGREEMENT
One (1) Spare Engine shall be delivered with each of the Aircraft to be
delivered to FedEx on August 1, 2002; March 1, 2003; September 1, 2003; April 1,
2004; October 1, 2004; October 1, 2005; August 1, 2006 and November 1,
2006.
A-1
EXHIBIT B
TO THE AIRCRAFT SALES AGREEMENT BETWEEN
FEDERAL EXPRESS CORPORATION ("FEDEX") AND
FLIGHTLEASE, LTD ("FLIGHTLEASE")
DATED AS OF APRIL 21, 1998 (THE "AGREEMENT")
AIRCRAFT
DELIVERY CERTIFICATE
This Aircraft Delivery Certificate is given by Flightlease, LTD
("Flightlease") and Federal Express Corporation ("FedEx") pursuant to the
Agreement. Any capitalized term used herein and not expressly defined herein
shall have the meaning ascribed to it in the Agreement.
TENDER OF THE AIRCRAFT BY FLIGHTLEASE.
Flightlease hereby tenders to FedEx for Delivery pursuant to the terms and
subject to the conditions of the Agreement, the XxXxxxxxx Xxxxxxx Model MD-11
Aircraft described below:
Registration Number: __________________
Manufacturer's Serial Number: ________________
Fuselage or Line Number: ______________________
along with three (3) Xxxxx & Xxxxxxx PW4462 [PW4460] engines, bearing
Manufacturer's Serial Numbers:
Position (1)________ Position (2)________ Position (3)________
(the "Delivered Aircraft") with the operating times and cycles as accumulated on
the Aircraft up to the time of Delivery, together with the Aircraft Records,
listed on Exhibit D to the Agreement. Flightlease hereby restates and confirms
each of its representations and warranties set forth in Section 5.01 of the
Agreement.
___ US gallons of fuel on board acquired by Flightlease at $___ per US gallon.
Tender of the Aircraft is made by Flightlease at
__________________________, at _______/a.m./p.m. ____________ time, on this ____
day of _____________________, _____.
FLIGHTLEASE, LTD
By:_______________________________
Name:_____________________________
Title:______________________________
B-1
ACCEPTANCE OF THE AIRCRAFT BY FEDEX.
FEDERAL EXPRESS CORPORATION ("FedEx") hereby accepts and acknowledges
receipt of the Delivered Aircraft from Flightlease, in accordance with the terms
and conditions of the Agreement, at ______________________, at
_________/a.m./p.m. ____________ time, on ________________, __________, together
with the Aircraft Records listed in Exhibit D to the Agreement.
By its execution and delivery of this Certificate, FedEx hereby (i)
restates and confirms each of its representations and warranties set forth in
Section 5.03 of the Agreement and (ii) acknowledges and agrees that upon
delivery by Flightlease to FedEx, except as to those discrepancies expressly set
forth in Attachment 1 and Attachment 2 to this certificate, the Delivered
Aircraft was in Delivery Condition.
FEDERAL EXPRESS CORPORATION
By:__________________________________
Name:________________________________
Title:_________________________________
DISCREPANCIES FROM DELIVERY CONDITION.
Flightlease and FedEx hereby agree that the remaining discrepancy or
discrepancies of the Delivered Aircraft from the Delivery Condition, if any, and
the manner of, and deadline for, the correction of any such discrepancy or
discrepancies are as set forth in Attachment 2 hereto.
Dated: ______________________, __________.
FLIGHTLEASE, LTD
By:_______________________________
Name:_____________________________
Title:______________________________
FEDERAL EXPRESS CORPORATION
By:__________________________________
Name:________________________________
Title:_________________________________
B-2
ATTACHMENT 1 TO AIRCRAFT DELIVERY CERTIFICATE
AIRCRAFT HOURS AND CYCLES
AS OF_________________,________
XXXXXXXXX XXXXXXX MODEL MD-11 AIRCRAFT
REGISTRATION NUMBER: _______; FUSELAGE OR LINE NUMBER ____;
MANUFACTURER'S SERIAL NUMBER ____________
A. AIRFRAME:
TOTAL SINCE TO NEXT
NEW C CHECK
FLIGHT HOURS __________ __________
FLIGHT CYCLES __________ __________
CALENDAR TIME __________ __________
X. XXXXX & XXXXXXX XX0000 [PW4460] ENGINES:
TOTAL TOTAL FLIGHT TOTAL CYCLES TOTAL TIME
ENGINE MANUFACTURER'S FLIGHT CYCLES HOURS SINCE SINCE LAST SINCE LAST
POSITION SERIAL NUMBER SINCE NEW NEW OVERHAUL OVERHAUL
-------- ------------- --------- --- -------- --------
1 ____________ _________ ___________ ________ ________
2 ____________ _________ ___________ ________ ________
3 ____________ _________ ___________ ________ ________
The flight cycles or flight hours remaining to the limitation on each life
limited part in each Engine are as set forth in Annex 1 to this Attachment 1 to
the Aircraft Delivery Certificate.
C. LANDING GEAR
TOTAL TOTAL CYCLES TOTAL DAYS
MANUFACTURER'S FLIGHT CYCLES TOTAL DAYS TO TO NEXT
POSITION SERIAL NUMBER SINCE NEW SINCE NEW NEXT OVERHAUL OVERHAUL
Nose ____________ _________ ___________ ________ ________
Left Main ____________ _________ ___________ ________ ________
Center Main____________ _________ ___________ ________ ________
Right Main ____________ _________ ___________ ________ ________
B-3
D. AUXILIARY POWER UNIT
APU INSTALLED IN THE DELIVERED AIRCRAFT:
MANUFACTURER'S SERIAL NUMBER _____________________
NUMBER OF FLIGHT CYCLES SINCE NEW _____________________
NUMBER OF FLIGHT HOURS SINCE NEW _____________________
LIFE LIMITED PARTS CONTAINED IN SUCH APU:
MANUFACTURER'S TOTAL FLIGHT TOTAL FLIGHT NUMBER OF CYCLES OR
SERIAL CYCLES SINCE HOURS SINCE HOURS REMAINING TO FIRST LIFE
PART DESCRIPTION NUMBER NEW NEW LIMITED PART REMOVAL
------------------------------------ -------------- ------------ ------------ -----------------------------
First Stage Low Pressure Compressor -------------- ------------ ------------ -----------------------------
Second Stage Low Pressure Compressor -------------- ------------ ------------ -----------------------------
Third Stage Low Pressure Compressor -------------- ------------ ------------ -----------------------------
High Pressure Turbine -------------- ------------ ------------ -----------------------------
First Stage Low Pressure Turbine -------------- ------------ ------------ -----------------------------
Second Stage Low Pressure Turbine -------------- ------------ ------------ -----------------------------
Dated:__________________________, _________.
FLIGHTLEASE, LTD
By: ________________________________
Name: ______________________________
Title: _______________________________
X-0
XXXXX 0 XX XXXXXXXXXX 1
AIRCRAFT DELIVERY CERTIFICATE
PW4460/PW4462
LIFE LIMITED PARTS REPORT
ENGINE POSITION ________ ENGINE SERIAL NO._________
--------------------------------------------------------------------------------------------------------
PART PART SERIAL TIME CYCLES CYCLE CYCLES
NAME NUMBER NUMBER SINCE NEW SINCE NEW LIMIT REMAINING
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
FAN MODULE
--------------------------------------------------------------------------------------------------------
Cone Segment, Compressor Inlet
--------------------------------------------------------------------------------------------------------
Coupling, Turbine Shaft
--------------------------------------------------------------------------------------------------------
Shaft, L.P.C. Drive Turbine
--------------------------------------------------------------------------------------------------------
Airseal, L.P.T. Stg. 3
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
LOW COMPRESSOR MODULE
--------------------------------------------------------------------------------------------------------
Hub, Front Compressor
--------------------------------------------------------------------------------------------------------
Disc, Drum Rotor
--------------------------------------------------------------------------------------------------------
Disc, L.P.C. Stg. 1.6
--------------------------------------------------------------------------------------------------------
Disc, L.P.C. Stg. 2
--------------------------------------------------------------------------------------------------------
Disc, L.P.C. Stg. 3
--------------------------------------------------------------------------------------------------------
Disc, L.P.C. Stg. 4
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
HIGH COMPRESSOR MODULE
--------------------------------------------------------------------------------------------------------
Disc, H.P.C. Stg. 5
--------------------------------------------------------------------------------------------------------
Hub, H.P.C. Front
--------------------------------------------------------------------------------------------------------
Disc, Drum Rotor Front
--------------------------------------------------------------------------------------------------------
Disc, H.P.C. Stg. 6
--------------------------------------------------------------------------------------------------------
Disc, H.P.C. Stg. 7
--------------------------------------------------------------------------------------------------------
Disc, H.P.C. Stg. 8
--------------------------------------------------------------------------------------------------------
Disc, H.P.C. Stg. 9
--------------------------------------------------------------------------------------------------------
Disc, H.P.C. Stg. 10
--------------------------------------------------------------------------------------------------------
Disc, H.P.C. Stg. 11
--------------------------------------------------------------------------------------------------------
Disc, H.P.C. Stg. 12
--------------------------------------------------------------------------------------------------------
Disc, Drum Rotor Rotor
--------------------------------------------------------------------------------------------------------
Disc, H.P.C. Stg. 13
--------------------------------------------------------------------------------------------------------
Disc, H.P.C. Stg. 14
--------------------------------------------------------------------------------------------------------
Disc, H.P.C. Stg. 15
--------------------------------------------------------------------------------------------------------
Shaft, H.P.C. Drive Turbine
--------------------------------------------------------------------------------------------------------
Hub, H.P.C. Rear
--------------------------------------------------------------------------------------------------------
Airseal, Diffuser
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
HIGH PRESSURE TURBINE MODULE
--------------------------------------------------------------------------------------------------------
Hub, Turbine Front
--------------------------------------------------------------------------------------------------------
Airseal, H.P.T. Stg. 1
--------------------------------------------------------------------------------------------------------
Airseal, H.P.T. Stg. 2
--------------------------------------------------------------------------------------------------------
Ring, H.P.T. Stg. 1
--------------------------------------------------------------------------------------------------------
Hub, Turbine Inter. Rear
--------------------------------------------------------------------------------------------------------
Plate, H.P.T. Blade, Retaining
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
LOW PRESSURE TURBINE MODULE
--------------------------------------------------------------------------------------------------------
Airseal, L.P.T. Stg. 3
--------------------------------------------------------------------------------------------------------
Disc, L.P.T. Stg. 3
--------------------------------------------------------------------------------------------------------
Airseal, L.P.T. Stg. 4
--------------------------------------------------------------------------------------------------------
Disc, L.P.T. Stg. 4
--------------------------------------------------------------------------------------------------------
Airseal, L.P.T. Stg. 5
--------------------------------------------------------------------------------------------------------
Hub, Turbine Rear
--------------------------------------------------------------------------------------------------------
Disc, L.P.T. Stg. 6
--------------------------------------------------------------------------------------------------------
B-5
ATTACHMENT 2 TO AIRCRAFT DELIVERY CERTIFICATE
DISCREPANCIES OF DELIVERED AIRCRAFT FROM DELIVERY CONDITION
Any capitalized term used herein and not expressly defined herein shall
have the meaning ascribed to it in the Agreement.
The following remaining discrepancy or discrepancies from Delivery
Condition exist with respect to the Delivered Aircraft (as defined in the
Aircraft Delivery Certificate of which this Attachment 2 is a part):
Flightlease and FedEx have agreed that the foregoing discrepancy or
discrepancies will be corrected in the following manner and by the following
date or dates:
Dated: __________________________, _______.
FLIGHTLEASE, LTD
By:_______________________________
Name:_____________________________
Title:______________________________
FEDERAL EXPRESS CORPORATION
By:__________________________________
Name:________________________________
Title:_________________________________
B-6
EXHIBIT C-1
TO THE AIRCRAFT SALES AGREEMENT BETWEEN
FEDERAL EXPRESS CORPORATION ("FEDEX") AND
FLIGHTLEASE, LTD ("FLIGHTLEASE")
DATED AS OF APRIL 21, 1998 (THE "AGREEMENT")
AIRCRAFT WARRANTY XXXX OF SALE
KNOW ALL MEN BY THESE PRESENTS:
THAT the undersigned, FLIGHTLEASE, LTD., a corporation organized and
existing under the laws of Switzerland ("Transferor"), has the power and right
to convey the legal and beneficial title to that certain XxXxxxxxx Xxxxxxx MD-11
aircraft bearing Swiss Registration Number _________ and Manufacturer's Serial
Number _______________, together with three (3) Xxxxx & Whitney PW4460 [OR
PW4462] turbofan jet engines installed thereon, bearing Manufacturer's Serial
Numbers _______________, ______________, and _____________, together with all
fixed equipment, parts, components and accessories installed on said aircraft
and engines (collectively the "Aircraft").
THAT for and in consideration of the sum of Ten Dollars ($10) and other
valuable consideration, Transferee does, this ____ day of ________________,
200__, grant, convey, transfer, bargain, sell, deliver and set over all of its
rights, title and interests to and in the Aircraft unto FEDERAL EXPRESS
CORPORATION, a Delaware corporation ("Transferee").
Transferor hereby warrants to Transferee, its successors and assigns, that
there is hereby conveyed to Transferee title to the Aircraft free and clear of
all liens, encumbrances and rights of others arising by, through or under
Transferor and that it shall warrant and defend such title forever against all
claims and demands whatsoever; and that this xxxx of sale is made and delivered
pursuant to the provisions of the Aircraft Sales Agreement between Transferor
and Transferee, dated as of April 21, 1998.
The matters set forth in this Xxxx of Sale shall be governed by and in
accordance with the laws of the State of New York.
IN WITNESS WHEREOF, Transferor has executed this Warranty Xxxx of Sale on
the _____ day of __________________________, __________.
FLIGHTLEASE, LTD.
By: ___________________________
Name: _________________________
Title: __________________________
C-1
EXHIBIT C-2
TO THE AIRCRAFT SALES AGREEMENT BETWEEN
FEDERAL EXPRESS CORPORATION ("FEDEX") AND
FLIGHTLEASE, LTD ("FLIGHTLEASE")
DATED AS OF APRIL 21, 1998 (THE "AGREEMENT")
SPARE ENGINE WARRANTY XXXX OF SALE
KNOW ALL MEN BY THESE PRESENTS:
THAT the undersigned, FLIGHTLEASE, LTD., a corporation organized and
existing under the laws of Switzerland ("Transferor"), has the power and right
to convey the legal and beneficial title to that certain Xxxxx & Xxxxxxx PW4460
[OR PW4462] turbofan jet engine, bearing Manufacturer's Serial Number _____,
together with all fixed equipment, parts, components and accessories installed
on said engine (the "Engine").
THAT for and in consideration of the sum of Ten Dollars ($10) and other
valuable consideration, Transferee does, this ____ day of ________________,
200__, grant, convey, transfer, bargain, sell, deliver and set over all of its
rights, title and interests to and in the Engine unto FEDERAL EXPRESS
CORPORATION, a Delaware corporation ("Transferee").
Transferor hereby warrants to Transferee, its successors and assigns, that
there is hereby conveyed to Transferee title to the Engine free and clear of all
liens, encumbrances and rights of others arising by, through or under Transferor
and that it shall warrant and defend such title forever against all claims and
demands whatsoever; and that this xxxx of sale is made and delivered pursuant to
the provisions of the Aircraft Sales Agreement between Transferor and
Transferee, dated as of April 21, 1998.
The matters set forth in this Xxxx of Sale shall be governed by and in
accordance with the laws of the State of New York.
IN WITNESS WHEREOF, Transferor has executed this Warranty Xxxx of Sale on
the _____ day of __________________________, __________.
FLIGHTLEASE, LTD.
By: ___________________________
Name: _________________________
Title: __________________________
C-2
EXHIBIT D
TO THE AIRCRAFT SALES AGREEMENT BETWEEN
FEDERAL EXPRESS CORPORATION ("FEDEX") AND
FLIGHTLEASE, LTD ("FLIGHTLEASE")
DATED AS OF APRIL 21, 1998 (THE "AGREEMENT")
DATA RELATING TO THE AIRCRAFT AND ENGINES
TO BE DELIVERED BY FLIGHTLEASE TO FEDEX
Original or copies of the following items of Data will be supplied in the
English language on the specified medium or on microfiche, microfilm, paper,
disk or any then current medium or a combination of these media, with revision
updates revised as of the applicable Delivery Dates. The required certifications
for Aircraft time and cycles, life-limited parts, Airworthiness Directives and
hard-time components for Airframes, Engines and APUs shall be signed by a
manager or higher management personnel in the Airworthiness, Quality Assurance,
Quality Control or Aircraft/Powerplant Records department of Swissair or
Flightlease, as applicable. Any required certification of any item of Data
shall be in the form attached as Appendix 1 to this Exhibit D.
MANUALS:
1. FAA Approved Aircraft Flight Manual
2 Swissair Flight Operations Manual
3. Aircraft Maintenance Manual
4. Aircraft Overhaul Manual
5. Aircraft Wiring Manual
6. Aircraft Structure Repair Manual
7. Aircraft Illustrated parts Catalog
8. Aircraft Weight and Balance Manual, Loading Manual, Basic & Supplemental
9. XxXxxxxxx Xxxxxxx Procedure for Actual Weighing/Balancing MD-11 Series
Aircraft
10. Aircraft Minimum Equipment
11. Original Delivery Equipment List (packing sheets)
12. XxXxxxxxx Xxxxxxx Aircraft Detail Specification
13. Swissair Regulatory Authority Approved Aircraft Maintenance Program
14. Swissair Maintenance Planning Documents
15. Swissair Component Maintenance Program
16. Swissair Component Maintenance Manuals
17. Aircraft Interior Configuration (L.O.P.A.)
18. Hard copy of all Engineering orders pertaining to MD-11 Aircraft
19. Supplemental Type Certificates. (Airframe, Engine and APU) and the related
substantiating data.
D-1
Page 2
Exhibit D
20. Substantiating Data relating to any modifications, alterations or repairs
to the Airframe, Engines, APU and any Components (Parts) suitable for
installation and use on the Airframe, Engines or APU
21. Cross Reference, Swissair Part Numbers versus Manufacturers Part Numbers
22. Swissair Engine Heavy Maintenance Program
23. Swissair Engine Build Specifications
24. Swissair Engine Maintenance Program (on wing)
25. Swissair Powerplant Build-up Manual
26. Swissair Xxxxx & Xxxxxxx 4000 Component Maintenance Manuals - All Chapters
27. Xxxxx & Whitney 4000 Engine Manual, Part Number 50A824
28. Engine Standard Practices Manual, part Number 585005
29. Engine facility Planning Manual, Part Number 50A442
30. Xxxxx & Xxxxxxx 4000 Illustrated Parts Manual, Part Number 50A824
31. Engine Support Equipment Numerical Index, Part Number 50A738
32. Engine Parts Application Manual, Part Number 51A072
33. Engine Cleaning/Inspection/Repair Manual, Part Number 51A009
34. Engine Service Bulletin Manual and P&W 4000 EMP
35. Swissair APU Heavy Maintenance Program
36. Swissair APU Build Specifications
37. Swissair APU Maintenance Program (in service)
38. APU Maintenance Manual
39. APU Illustrated Part Catalog
40. APU Wiring Diagram Manual
DOCUMENTS:
1. Certificate of Airworthiness
2. Certificate of Registration
DRAWINGS/CHARTS:
1. Fuel Distribution Chart, Compass Correction Card, and Major Avionic List.
D-2
Page 3
Exhibit D
RECORDS:
AIRCRAFT:
1. Aircraft Weight and Balance Report
2. Aircraft Historical Flight Logs with certification per attached Appendix I
3. Aircraft Historical Maintenance Records
4. Aircraft Engineering Order (EO) Completion List
5. Aircraft EOs Confirming AD Compliance, including method of compliance and
any alternate means of compliance with certification per attached Appendix I
6. Aircraft Service Bulletin Compliance List
7. Aircraft Incident and Accident Reports, if none a letter stating the
Aircraft has not been in any incidents or accidents
8. Aircraft Time Log Report or similar documentation (Aircraft, Engines, APU
and Components) with certification per attached Appendix I
9. Aircraft Life Limited Parts List
10. Airframe and Landing Gear Life-Limited Parts Records (including tags and
tear-down reports) with certification per attached Appendix I
11. Aircraft Flying Components/Parts listing including Part Number, Serial
Number and Installation location (if available)
12. Aircraft Airworthiness Directive (AD) Status Report with certification per
attached Appendix I, including accomplishment documents for the last action
taken complete with parts tags and tear-down reports where applicable
13. Data packages on all major repairs and alterations including manufacturer
and regulatory authority approvals/authorizations
14. Listing and summary description, in English of all non-routines, including
non-routine number and description of discrepancy, generated during last
"C" Check/Transition Maintenance Check performed prior to delivery of each
aircraft to FedEx.
ENGINE:
1. Engines Historical Maintenance Records
2. Engines Trend Monitoring Records (last 30 days)
3. Engine Life-Limited Parts List (back-to-birth records) with certification
per attached Appendix I
4. Engine Life-Limited Parts Records (including tags and Shop Findings
Reports)
D-3
Page 4
Exhibit D
5. Engine Accessories/component List, including Part Numbers, Serial Number,
Time Since New (TSN), Time Since Installation (TSI) and Time Since Overhaul
(TSO)
6. Engine Engineering Order (EO) Completion List, including method of
compliance and any alternate means of compliance
7. Engine EOs Confirming AD Compliance
8. Engine Service Bulletin Compliance List
9. Engine Airworthiness Directive (AD) Status report with certification per
attached Appendix I, including accomplishment documents for the last action
taken complete with parts tags and tear-down reports where applicable
APU:
1. APU Historical Records including last shop visit
2. APU Life-Limited Parts List with certification per attached Appendix I
3. APU Airworthiness Directive (AD) Status Report and method of compliance
with certification per attached Appendix I, including accomplishment
documents for the last action taken complete with parts tags and tear-down
reports where applicable
4. APU Service Bulletin Compliance List
5. APU Life-Limited Parts Records (including tags and Shop Findings Reports)
6. Engineering Order (EO) Completion List, including method of compliance and
any alternate means of compliance
7. Engineering Orders Confirming AD Compliance
8. APU Accessories/Component List, including Part Number, Serial Number, Time
Since New (TSN), Time Since Installation (TSI) and Time Since Overhaul
(TSO).
D-4
APPENDIX I
AIRCRAFT REGISTRATION NO. ________ MANUFACTURER'S SERIAL NO. ________
DATE ______________________
(TITLE)
I HEREBY CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD TO THE BEST OF MY
KNOWLEDGE.
--------------------------- --------------------------
SIGNATURE DATE
--------------------------- --------------------------
PRINTED NAME TITLE
--------------------------- --------------------------
COMPANY NAME COMPANY CERTIFICATE TYPE
---------------------------
COMPANY CERTIFICATE NUMBER
D-5
EXHIBIT E
TO THE AIRCRAFT SALES AGREEMENT BETWEEN
FEDERAL EXPRESS CORPORATION ("FEDEX") AND
FLIGHTLEASE, LTD ("FLIGHTLEASE")
DATED AS OF APRIL 21, 1998 (THE "AGREEMENT")
DESIGNATION OF AN AIRFRAME FOR DELIVERY
ON SCHEDULED DELIVERY DATE
Any capitalized term used herein shall have the meaning ascribed to it in
the Agreement.
1. The Scheduled Delivery Date for which the Designated Airframe (as
defined below) is being designated is ________________________________.
2. The following are the identification numbers of the Airframe
designated for delivery on the Scheduled Delivery Date set forth in Paragraph 1.
above (the "Designated Airframe"):
Registration Number: _____________________
Manufacturer's Serial Number: ________________
Fuselage or Line Number: ____________________
3. The total flight hours and flight cycles on the Designated Airframe
since delivery of the Designated Airframe by the Manufacturer to Flightlease and
the number of flight hours and flight cycles remaining on the Designated
Airframe to certain C Checks as of the date and time of this Designation are as
follows:
Total Since To Next
New C Check
Flight Hours ___________ ___________
Flight Cycles ___________ ___________
Calendar Time ___________ ___________
4. The total flight hours and flight cycles remaining to the next major
overhaul of each of the Gears that are installed on the Designated Airframe at
the date and time of this Designation are as follows:
TOTAL
MANUFACTURER'S SERIAL FLIGHT CYCLES TOTAL DAYS SINCE TOTAL CYCLES TO TOTAL DAYS TO
POSITION NUMBER SINCE NEW NEW NEXT OVERHAUL NEXT OVERHAUL
-------- ------ --------- --- ------------- -------------
Nose ____________ __________ ___________ ____________ ___________
Left Main ____________ __________ ___________ ____________ ___________
Center Main ____________ __________ ___________ ____________ ___________
Right Main ____________ __________ ___________ ____________ ___________
E-1
5. The total flight hours or flight cycles since new for (x) the APU
installed on the Designated Airframe and (y) the Life Limited Parts contained in
such APU and the flight cycles or flight hours remaining to the first limit of
the Life Limited Parts contained in the APU installed on the Designated Airframe
at the date and time of this Designation are as follows :
APU installed on the Designated Airframe:
Manufacturer's Serial Number ____________________
Number of Flight Cycles Since New _____________________
Number of Flight Hours Since New _____________________
Life Limited Parts contained in such APU:
MANUFACTURER'S TOTAL FLIGHT TOTAL FLIGHT NUMBER OF CYCLES OR
SERIAL CYCLES SINCE HOURS SINCE HOURS REMAINING TO FIRST
PART DESCRIPTION NUMBER NEW NEW LIFE LIMITED PART REMOVAL
------------------------------------ -------------- ------------ -------------- -------------------------
First Stage Low Pressure Compressor ______________ ____________ ______________ ____________
Second Stage Low Pressure Compressor ______________ ____________ ______________ ____________
Third Stage Low Pressure Compressor ______________ ____________ ______________ ____________
High Pressure Turbine ______________ ____________ ______________ ____________
First Stage Low Pressure Turbine ______________ ____________ ______________ ____________
Second Stage Low Pressure Turbine ______________ ____________ ______________ ____________
6. The estimated usage of the Aircraft from the date of this Designation
until the Scheduled Delivery Date is __________________ flight cycles and
_____________ flight hours.
This Designation is made by Flightlease on the ____ day of _____________,
_____ at _________, [a.m.] [p.m.], _______________________ time.
FLIGHTLEASE, LTD
By: ________________________
Name: ______________________
Title: _______________________
E-2
EXHIBIT F
TO THE AIRCRAFT SALES AGREEMENT BETWEEN
FEDERAL EXPRESS CORPORATION ("FEDEX") AND
FLIGHTLEASE, LTD ("FLIGHTLEASE")
DATED AS OF APRIL 21, 1998 (THE "AGREEMENT")
DESIGNATION OF A SUBSTITUTE AIRFRAME FOR DELIVERY
ON SCHEDULED DELIVERY DATE
1. This Designation of a Substitute Airframe for delivery on a Scheduled
Delivery Date (this "Change Designation") is being provided by Flightlease to
FedEx in order to designate an Airframe for delivery on the Scheduled Delivery
Date indicated below in substitution for an Airframe previously designated by
Flightlease for delivery to FedEx on such Scheduled Delivery Date (the
"Previously Designated Airframe"). Any capitalized term not expressly defined
herein shall have the meaning ascribed to it in the Agreement.
2. The Scheduled Delivery Date for which the Previously Designated
Airframe was to be delivered and for which the Substitute Airframe (as defined
below) is now being designated for delivery and sale to FedEx is ______________.
3. The following are the identification numbers of the Previously
Designated Airframe:
Registration Number: _________________________
Manufacturer's Serial Number: _______________________________
Nose Number: __________________________
Fuselage or Line Number: ___________________________
4. The following are the identification numbers of the Airframe being
substituted for the Previously Designated Airframe which is hereby designated
for delivery on the Scheduled Delivery Date set forth in Paragraph 2. above in
the stead of the Previously Designated Airframe (the "Substitute Airframe"):
Registration Number: __________________________
Manufacturer's Serial Number: _________________________________
Nose Number: ________________________
Fuselage or Line Number: _________________________
5. The total flight hours and flight cycles on the Designated Airframe
since delivery of the Designated Airframe by the Manufacturer to Flightlease and
the number of flight hours and flight cycles remaining on the Designated
Airframe to certain C Checks as of the date and time of this Designation are as
follows:
F-1
Total Since To Next
New C Check
Flight Hours ___________ ___________
Flight Cycles ___________ ___________
Calendar Time ___________ ___________
6. The total flight hours and flight cycles remaining to the next major
overhaul of each of the Gears that are installed on the Designated Airframe at
the date and time of this Designation are as follows:
TOTAL
MANUFACTURER'S SERIAL FLIGHT CYCLES TOTAL DAYS SINCE TOTAL CYCLES TO TOTAL DAYS TO
POSITION NUMBER SINCE NEW NEW NEXT OVERHAUL NEXT OVERHAUL
Nose ____________ __________ ___________ ____________ ___________
Left Main ____________ __________ ___________ ____________ ___________
Center Main _____________ __________ ___________ ____________ ___________
Right Main _____________ __________ ___________ ____________ ___________
7. The total flight hours or flight cycles since new for (x) the APU
installed on the Designated Airframe and (y) the Life Limited Parts contained in
such APU and the flight cycles or flight hours remaining to the first limit of
the Life Limited Parts contained in the APU installed on the Designated Airframe
at the date and time of this Designation are as follows:
APU installed on the Designated Airframe:
Manufacturer's Serial Number _____________________
Number of Flight Cycles Since New _____________________
Number of Flight Hours Since New _____________________
F-2
Life Limited Parts contained in such APU:
MANUFACTURER'S TOTAL FLIGHT TOTAL FLIGHT NUMBER OF CYCLES OR
SERIAL CYCLES SINCE HOURS SINCE HOURS REMAINING TO FIRST
PART DESCRIPTION NUMBER NEW NEW LIFE LIMITED PART REMOVAL
------------------------------------ -------------- ------------ -------------- -------------------------
First Stage Low Pressure Compressor ______________ ____________ ______________ ____________
Second Stage Low Pressure Compressor ______________ ____________ ______________ ____________
Third Stage Low Pressure Compressor ______________ ____________ ______________ ____________
High Pressure Turbine ______________ ____________ ______________ ____________
First Stage Low Pressure Turbine ______________ ____________ ______________ ____________
Second Stage Low Pressure Turbine ______________ ____________ ______________ ____________
8. The estimated usage of the Aircraft from the date of this Designation
until the Scheduled Delivery Date is __________________ flight cycles and
_____________ flight hours.
This Designation is made by Flightlease on the ____ day of _____________,
_____ at _________, [a.m.] [p.m.], _______________________ time.
FLIGHTLEASE, LTD
By: ________________________
Name: ______________________
Title: _______________________
F-3
EXHIBIT G
TO THE AIRCRAFT SALES AGREEMENT BETWEEN
FEDERAL EXPRESS CORPORATION ("FEDEX") AND
FLIGHTLEASE, LTD ("FLIGHTLEASE")
DATED AS OF APRIL 21, 1998 (THE "AGREEMENT")
FORM OF
ASSIGNMENT OF WARRANTIES
In connection with delivery of the Aircraft, Spare Part or Spare Engine (as
applicable) described in Annex A hereto by Flightlease, LTD ("Flightlease") to
Federal Express Corporation ("FedEx"), Flightlease hereby assigns and conveys to
FedEx, its successors, assigns and legal representatives, all of Flightlease's
right, title and interest in and to any and all of the manufacturer's, vendor's
and other warranties relating to the Aircraft, Spare Part or Spare Engines (as
applicable), but only to the extent, that such warranties are assignable (the
"Warranties") and all rights to enforce, exercise any rights with respect to or
retain any recovery or benefit with respect to the Warranties, including without
limitation such rights and recoveries which relate to work completed or to be
completed by Flightlease or any of its affiliates in connection with its
performance of its obligations under the Aircraft Sales Agreement between FedEx
and Flightlease dated as of April 21, 1998 (the "Agreement") prior to or in
connection with the Delivery (as defined in the Agreement) of the Aircraft.
Notwithstanding the foregoing, Flightlease does not assign or convey to FedEx
any outstanding claims or rights, whether liquidated or contingent, or know or
unknown, that it may have against the grantor of any of the Warranties arising
prior to the tender of the Aircraft by Flightlease for Delivery pursuant to the
Agreement.
The matters set forth in this Assignment of Warranties shall be governed by
and in accordance with the laws of the State of New York.
Dated : ______________, _________.
FLIGHTLEASE, LTD
By: ____________________________
Name:__________________________
Title:___________________________
G-1
ANNEX A TO ASSIGNMENT OF
ASSIGNABLE MANUFACTURER'S WARRANTIES
One XxXxxxxxx Xxxxxxx Model MD-11 Aircraft described below:
Registration Number: ___________________________
Manufacturer's Serial Number: ____________________
Flightlease Fuselage or Line Number: _________________
Flightlease Nose Number: ___________________________
along with three (3) Xxxxx & Whitney PW4462 [PW4460] engines, bearing
Manufacturer's Serial Numbers:
Position (1) ____________________
Position (2) ____________________
Position (3) ____________________
G-2
EXHIBIT H
TO THE AIRCRAFT SALES AGREEMENT BETWEEN
FEDERAL EXPRESS CORPORATION ("FEDEX") AND
FLIGHTLEASE, LTD ("FLIGHTLEASE")
DATED AS OF APRIL 21, 1998 (THE "AGREEMENT")
DESIGNATION OF ENGINES/SPARE ENGINES FOR SCHEDULED DELIVERY DATES
Any capitalized term used in this Designation of Engines/Spare Engines for
conveyance on a Scheduled Delivery Date shall have the meaning ascribed to it in
the Agreement unless expressly defined herein.
1. The Scheduled Delivery Date for which the Designated Airframe (as
defined below) is being designated is ________________________________.
2. The following are the identification numbers of the Airframe
designated for delivery on the Scheduled Delivery Date set forth in Paragraph 1.
above (the "Designated Airframe"):
Registration Number: _______
Manufacturer's Serial No.: _____________ Fuselage or Line Number: ________
3. The following are the Engines to be conveyed with the Designated
Airframe on the Scheduled Delivery Date set forth in Paragraph 1. above (the
"Designated Engines"):
XXXXX & XXXXXXX PW4462 [OR PW4460] ENGINES:
TOTAL FLIGHT TOTAL FLIGHT TOTAL CYCLES TOTAL TIME
ENGINE MANUFACTURER'S CYCLES HOURS SINCE SINCE LAST SINCE LAST
POSITION SERIAL NUMBER SINCE NEW NEW OVERHAUL OVERHAUL
1 ____________ __________ ___________ __________ ___________
2 ____________ __________ ___________ __________ ___________
3 ____________ __________ ___________ __________ ___________
4. The flight cycles or flight hours remaining to the limitation on each
life limited part in each Engine are as set forth in Annex 1 to this Designation
of Engines for Delivery on Scheduled Delivery Date.
This Engine Designation is made by Flightlease on the ____ day of
_____________, _____ at _________, [a.m.] [p.m.], ____________ time.
FLIGHTLEASE, LTD
By: _____________________________
Name: ___________________________
Title: ____________________________
X-0
XXXXX 0 XX XXXXXXXXXX 1
AIRCRAFT DELIVERY CERTIFICATE
PW4460/PW4462
LIFE LIMITED PARTS REPORT
ENGINE POSITION ________ ENGINE SERIAL NO._________
--------------------------------------------------------------------------------------------------------
PART PART SERIAL TIME CYCLES CYCLE CYCLES
NAME NUMBER NUMBER SINCE NEW SINCE NEW LIMIT REMAINING
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
FAN MODULE
--------------------------------------------------------------------------------------------------------
Cone Segment, Compressor Inlet
--------------------------------------------------------------------------------------------------------
Coupling, Turbine Shaft
--------------------------------------------------------------------------------------------------------
Shaft, L.P.C. Drive Turbine
--------------------------------------------------------------------------------------------------------
Airseal, L.P.T. Stg. 3
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
LOW COMPRESSOR MODULE
--------------------------------------------------------------------------------------------------------
Hub, Front Compressor
--------------------------------------------------------------------------------------------------------
Disc, Drum Rotor
--------------------------------------------------------------------------------------------------------
Disc, L.P.C. Stg. 1.6
--------------------------------------------------------------------------------------------------------
Disc, L.P.C. Stg. 2
--------------------------------------------------------------------------------------------------------
Disc, L.P.C. Stg. 3
--------------------------------------------------------------------------------------------------------
Disc, L.P.C. Stg. 4
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
HIGH COMPRESSOR MODULE
--------------------------------------------------------------------------------------------------------
Disc, H.P.C. Stg. 5
--------------------------------------------------------------------------------------------------------
Hub, H.P.C. Front
--------------------------------------------------------------------------------------------------------
Disc, Drum Rotor Front
--------------------------------------------------------------------------------------------------------
Disc, H.P.C. Stg. 6
--------------------------------------------------------------------------------------------------------
Disc, H.P.C. Stg. 7
--------------------------------------------------------------------------------------------------------
Disc, H.P.C. Stg. 8
--------------------------------------------------------------------------------------------------------
Disc, H.P.C. Stg. 9
--------------------------------------------------------------------------------------------------------
Disc, H.P.C. Stg. 10
--------------------------------------------------------------------------------------------------------
Disc, H.P.C. Stg. 11
--------------------------------------------------------------------------------------------------------
Disc, H.P.C. Stg. 12
--------------------------------------------------------------------------------------------------------
Disc, Drum Rotor Rotor
--------------------------------------------------------------------------------------------------------
Disc, H.P.C. Stg. 13
--------------------------------------------------------------------------------------------------------
Disc, H.P.C. Stg. 14
--------------------------------------------------------------------------------------------------------
Disc, H.P.C. Stg. 15
--------------------------------------------------------------------------------------------------------
Shaft, H.P.C. Drive Turbine
--------------------------------------------------------------------------------------------------------
Hub, H.P.C. Rear
--------------------------------------------------------------------------------------------------------
AirseaL, Diffuser
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
HIGH PRESSURE TURBINE MODULE
--------------------------------------------------------------------------------------------------------
Hub, Turbine Front
--------------------------------------------------------------------------------------------------------
Airseal, H.P.T. Stg. 1
--------------------------------------------------------------------------------------------------------
Airseal, H.P.T. Stg. 2
--------------------------------------------------------------------------------------------------------
Ring, H.P.T. Stg. 1
--------------------------------------------------------------------------------------------------------
Hub, Turbine Inter. Rear
--------------------------------------------------------------------------------------------------------
Plate, H.P.T. Blade, Retaining
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
LOW PRESSURE TURBINE MODULE
--------------------------------------------------------------------------------------------------------
Airseal, L.P.T. Stg. 3
--------------------------------------------------------------------------------------------------------
Disc, L.P.T. Stg. 3
--------------------------------------------------------------------------------------------------------
Airseal, L.P.T. Stg. 4
--------------------------------------------------------------------------------------------------------
Disc, L.P.T. Stg. 4
--------------------------------------------------------------------------------------------------------
Airseal, L.P.T. Stg. 5
--------------------------------------------------------------------------------------------------------
Hub, Turbine Rear
--------------------------------------------------------------------------------------------------------
Disc, L.P.T. Stg. 6
--------------------------------------------------------------------------------------------------------
H-2
EXHIBIT I
TO THAT CERTAIN
AIRCRAFT SALES AGREEMENT BETWEEN
FEDERAL EXPRESS CORPORATION ("FEDEX") AND
FLIGHTLEASE, LTD ("FLIGHTLEASE")
DATED AS OF APRIL 21, 1998 (THE "AGREEMENT")
PURCHASE PRICE ADJUSTMENT FORMULA -- ENGINES AND SPARE ENGINES
A. Any capitalized term used herein and not expressly defined herein shall
have the meaning ascribed to it in the Agreement. The Engine and Spare Engine
Purchase Price is subject to adjustment based on the cost per cycle derived from
the following formula:
ENGINE OVERHAUL COST * *
----------------------- = ---------- =
PLANNED OVERHAUL CYCLES *
B. The Purchase Price of each Aircraft will be adjusted for the three
installed engines in accordance with the following formula to reflect the
condition of the Engines at Delivery, as follows:
3,000 Cycles Since Overhaul under the Swissair Maintenance Program (ERP VI)
MINUS Total Cycles Since Overhaul under the Swissair Maintenance Program (ERP
VI) (3 Engines) X * US PLUS Aircraft Purchase Price
C. The Purchase Price of each Spare Engine will be adjusted in accordance with
the following formula to reflect the condition of the Spare Engines at Delivery:
SPARE ENGINE WITH LESS THAN 1,000 CYCLES SINCE OVERHAUL UNDER SWISSAIR
MAINTENANCE PROGRAM (ERP VI)
Adjusted Purchase Price = [(1,000 MINUS Actual Cycles) X * US] PLUS *
SPARE ENGINE WITH MORE THAN 1,000 CYCLES SINCE OVERHAUL UNDER SWISSAIR
MAINTENANCE PROGRAM (ERP VI)
Adjusted Purchase Price = * US MINUS [(Actual Cycles MINUS 1,000) *
*Blank space contained confidential information which has been filed separately
with the Securities and Exchange Commission pursuant to Rule 24b-2 under the
Securities Exchange Act of 1934.
I-1
EXHIBIT J
TO THAT CERTAIN
AIRCRAFT SALES AGREEMENT BETWEEN
FEDERAL EXPRESS CORPORATION ("FEDEX") AND
FLIGHTLEASE, LTD ("FLIGHTLEASE")
DATED AS OF APRIL 21, 1998 (THE "AGREEMENT")
ENGINE AND SPARE ENGINE
DELIVERY CERTIFICATE
This Engine Delivery Certificate is given by Flightlease, LTD
("Flightlease") and Federal Express Corporation ("FedEx") pursuant to the
Agreement. Any capitalized term used herein and not expressly defined herein
shall have the meaning ascribed to it in the Agreement.
TENDER OF EACH ENGINE.
Flightlease hereby tenders to FedEx at ________________ for delivery
pursuant to the terms and subject to the conditions of the Agreement, ______
[specify number of engines] Xxxxx & Whitney PW4462 [PW4460] engines, bearing
Manufacturer's Serial Number(s):
________________________
________________________
________________________
(each a "Delivered Engine" and collectively, if applicable, the "Delivered
Engines") with the operating times and cycles as accumulated on each Engine up
to the time of Delivery as described on Attachment 1A hereto and made a part
hereof, at _______/a.m./p.m. ____________ time, on ____________________,
_________, together with any Data, listed on Exhibit D to the Agreement.
Flightlease hereby restates and confirms each of its representations and
warranties set forth in Article 5 of the Agreement.
J-1
Tender of each Engine is made by _________________ this ____ day of
_____________________, _____.
FLIGHTLEASE, LTD
By:______________________
Title:___________________
ACCEPTANCE OF EACH ENGINE.
FedEx hereby accepts and acknowledges receipt of each Delivered Engine from
Flightlease in accordance with the terms and conditions of the Agreement, which
Delivered Engine or Delivered Engines has or have, as the case may be, the
operating times and flight cycles as accumulated on the Aircraft up to the time
of delivery as described on Attachment 1 hereto and made a part hereof,
at _________, at _________/a.m./p.m. ____________ time, on ___________________,
__________, together with the Data listed in Exhibit D to the Agreement. FedEx
hereby restates and confirms each of its representations set forth in Article 5
of the Agreement.
FedEx hereby acknowledges and agrees that upon delivery by Flightlease to
FedEx, except as to those discrepancies expressly set forth in Attachment 1 to
this certificate, the Delivered Engine met the requirements for the condition of
the Engines upon delivery as set forth in the Agreement.
Acceptance of each Delivered Engine is made by _____________________ this
_____ day of ______________________, ______.
FEDERAL EXPRESS CORPORATION
By: ________________________________
Name: ______________________________
Title: _______________________________
J-2
ATTACHMENT 1A TO ENGINE DELIVERY CERTIFICATE
ENGINE INFORMATION
AS OF ___________________, ______
XXXXX & XXXXXXX PW4462 [OR PW4460] ENGINES:
TOTAL FLIGHT TOTAL FLIGHT TOTAL CYCLES TOTAL TIME
ENGINE MANUFACTURER'S CYCLES HOURS SINCE SINCE LAST SINCE LAST
POSITION SERIAL NUMBER SINCE NEW NEW OVERHAUL OVERHAUL
1 ____________ __________ ___________ __________ ___________
2 ____________ __________ ___________ __________ ___________
3 ____________ __________ ___________ __________ ___________
The flight cycles remaining to the limitation on each life limited part in
each Engine are as set forth in Annex 1 to this Attachment 1 to the Engine
Aircraft Delivery Certificate.
Dated:__________________________, _________.
FLIGHTLEASE, LTD
By: ________________________________
Name: ______________________________
Title: _______________________________
X-0
XXXXX 0 XX XXXXXXXXXX 1
AIRCRAFT DELIVERY CERTIFICATE
PW4460/PW4462
LIFE LIMITED PARTS REPORT
ENGINE POSITION ________ ENGINE SERIAL NO._________
--------------------------------------------------------------------------------------------------------
PART PART SERIAL TIME CYCLES CYCLE CYCLES
NAME NUMBER NUMBER SINCE NEW SINCE NEW LIMIT REMAINING
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
FAN MODULE
--------------------------------------------------------------------------------------------------------
Cone Segment, Compressor Inlet
--------------------------------------------------------------------------------------------------------
Coupling, Turbine Shaft
--------------------------------------------------------------------------------------------------------
Shaft, L.P.C. Drive Turbine
--------------------------------------------------------------------------------------------------------
Airseal, L.P.T. Stg. 3
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
LOW COMPRESSOR MODULE
--------------------------------------------------------------------------------------------------------
Hub, Front Compressor
--------------------------------------------------------------------------------------------------------
Disc, Drum Rotor
--------------------------------------------------------------------------------------------------------
Disc, L.P.C. Stg. 1.6
--------------------------------------------------------------------------------------------------------
Disc, L.P.C. Stg. 2
--------------------------------------------------------------------------------------------------------
Disc, L.P.C. Stg. 3
--------------------------------------------------------------------------------------------------------
Disc, L.P.C. Stg. 4
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
HIGH COMPRESSOR MODULE
--------------------------------------------------------------------------------------------------------
Disc, H.P.C. Stg. 5
--------------------------------------------------------------------------------------------------------
Hub, H.P.C. Front
--------------------------------------------------------------------------------------------------------
Disc, Drum Rotor Front
--------------------------------------------------------------------------------------------------------
Disc, H.P.C. Stg. 6
--------------------------------------------------------------------------------------------------------
Disc, H.P.C. Stg. 7
--------------------------------------------------------------------------------------------------------
Disc, H.P.C. Stg. 8
--------------------------------------------------------------------------------------------------------
Disc, H.P.C. Stg. 9
--------------------------------------------------------------------------------------------------------
Disc, H.P.C. Stg. 10
--------------------------------------------------------------------------------------------------------
Disc, H.P.C. Stg. 11
--------------------------------------------------------------------------------------------------------
Disc, H.P.C. Stg. 12
--------------------------------------------------------------------------------------------------------
Disc, Drum Rotor Rotor
--------------------------------------------------------------------------------------------------------
Disc, H.P.C. Stg. 13
--------------------------------------------------------------------------------------------------------
Disc, H.P.C. Stg. 14
--------------------------------------------------------------------------------------------------------
Disc, H.P.C. Stg. 15
--------------------------------------------------------------------------------------------------------
Shaft, H.P.C. Drive Turbine
--------------------------------------------------------------------------------------------------------
Hub, H.P.C. Rear
--------------------------------------------------------------------------------------------------------
AirseaL, Diffuser
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
HIGH PRESSURE TURBINE MODULE
--------------------------------------------------------------------------------------------------------
Hub, Turbine Front
--------------------------------------------------------------------------------------------------------
Airseal, H.P.T. Stg. 1
--------------------------------------------------------------------------------------------------------
Airseal, H.P.T. Stg. 2
--------------------------------------------------------------------------------------------------------
Ring, H.P.T. Stg. 1
--------------------------------------------------------------------------------------------------------
Hub, Turbine Inter. Rear
--------------------------------------------------------------------------------------------------------
Plate, H.P.T. Blade, Retaining
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
LOW PRESSURE TURBINE MODULE
--------------------------------------------------------------------------------------------------------
Airseal, L.P.T. Stg. 3
--------------------------------------------------------------------------------------------------------
Disc, L.P.T. Stg. 3
--------------------------------------------------------------------------------------------------------
Airseal, L.P.T. Stg. 4
--------------------------------------------------------------------------------------------------------
Disc, L.P.T. Stg. 4
--------------------------------------------------------------------------------------------------------
Airseal, L.P.T. Stg. 5
--------------------------------------------------------------------------------------------------------
Hub, Turbine Rear
--------------------------------------------------------------------------------------------------------
Disc, L.P.T. Stg. 6
--------------------------------------------------------------------------------------------------------
J-4
EXHIBIT K
TO THAT CERTAIN
AIRCRAFT SALES AGREEMENT BETWEEN
FEDERAL EXPRESS CORPORATION ("FEDEX") AND
FLIGHTLEASE, LTD ("FLIGHTLEASE")
DATED AS OF APRIL 21, 1998 (THE "AGREEMENT")
SWISSAIR MAINTENANCE PROGRAM
K-1
EXHIBIT L
TO THAT CERTAIN
AIRCRAFT SALES AGREEMENT BETWEEN
FEDERAL EXPRESS CORPORATION ("FEDEX") AND
FLIGHTLEASE, LTD ("FLIGHTLEASE")
DATED AS OF APRIL 21, 1998 (THE "AGREEMENT")
------------------------------------------------------------------------
For any Engine delivered to FedEx requiring compensation to FedEx from
Flightlease pursuant to Section 3.06C.(2) of the Agreement, payment will be made
to FedEx to compensate for the reduction from * for each individual part
falling below that limit at the then current manufacturer's life-limited parts
price list, in accordance with the following * :
*
Such financial compensation will be applied to each life-limited part that falls
below the delivery standard of * , all in accordance with Section
3.06C.(2) of the Agreement.
*Blank space contained confidential information which has been filed separately
with the Securities and Exchange Commission pursuant to Rule 24b-2 under the
Securities Exchange Act of 1934.
L-1
EXHIBIT M
TO THAT CERTAIN
AIRCRAFT SALES AGREEMENT BETWEEN
FEDERAL EXPRESS CORPORATION ("FEDEX") AND
FLIGHTLEASE, LTD ("FLIGHTLEASE")
DATED AS OF APRIL 21, 1998 (THE "AGREEMENT")
MD11 SIMULATOR PURCHASE AGREEMENT
COPY ATTACHED
M-1
