Exhibit 4.e
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LEASE AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N584FE)
Dated as of May 1, 1997
as amended and restated as of February 1, 1998
between
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
Not in its Individual Capacity,
but Solely as Owner Trustee,
Lessor
and
FEDERAL EXPRESS CORPORATION,
Lessee
COVERING ONE XXXXXXXXX XXXXXXX MD-11F AIRCRAFT
SERIAL NO. 48436, REGISTRATION NO. N584FE
CERTAIN OF THE RIGHT, TITLE AND INTEREST IN AND TO THIS LEASE
AGREEMENT OF STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION, AS OWNER TRUSTEE, HAS BEEN ASSIGNED TO AND IS SUBJECT TO A LIEN
AND SECURITY INTEREST IN FAVOR OF FIRST SECURITY BANK, NATIONAL ASSOCIATION,
AS INDENTURE TRUSTEE UNDER THE TRUST INDENTURE AND SECURITY AGREEMENT (FEDERAL
EXPRESS CORPORATION TRUST NO. N584FE) DATED AS OF MAY 1, 1997, AS AMENDED AND
RESTATED AS OF FEBRUARY 1, 1998 FOR THE BENEFIT OF THE HOLDERS OF THE
CERTIFICATES REFERRED TO IN SUCH TRUST INDENTURE AND SECURITY AGREEMENT. THIS
LEASE AGREEMENT HAS BEEN EXECUTED IN SEVERAL COUNTERPARTS. ONLY THE
CHATTEL-PAPER "ORIGINAL" COUNTERPART CONTAINS THE RECEIPT THEREFOR EXECUTED BY
FIRST SECURITY BANK, NATIONAL ASSOCIATION, AS INDENTURE TRUSTEE ON THE
SIGNATURE PAGES THEREOF.
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TABLE OF CONTENTS
Page
Initial Recitals........................................................... 1
ARTICLE 1
DEFINITIONS
ARTICLE 2
ACCEPTANCE UNDER THE LEASE
Section 2.01. Sale and Lease of Aircraft; Term......................... 2
ARTICLE 3
RENT AND RENT ADJUSTMENT
Section 3.01. [Reserved]............................................... 2
Section 3.02. Basic Rent............................................... 2
Section 3.03. Supplemental Rent........................................ 3
Section 3.04. Adjustments to Basic Rent, Stipulated Loss Value,
Termination Value and EBO Price.......................... 3
Section 3.05. Minimum Basic Rent....................................... 4
Section 3.06. Payment to Indenture Trustee............................. 5
Section 3.07. Costs and Expenses....................................... 5
ARTICLE 4
RENEWAL OPTIONS AND PURCHASE OPTIONS
Section 4.01. Renewal Options.......................................... 5
Section 4.02. Purchase Options......................................... 6
Section 4.03. Appraisal Procedures..................................... 8
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
Section 5.01. Disclaimer of Representations and Warranties............. 9
Section 5.02. No Modification of Other Warranties...................... 10
Section 5.03. Certain Agreements of the Lessee......................... 11
ARTICLE 6
LIENS
Section 6.01. Liens.................................................... 11
ARTICLE 7
AIRCRAFT REGISTRATION, MAINTENANCE AND OPERATION
Section 7.01. Registration, Maintenance and Operation.................. 12
Section 7.02. Possession and Permitted Transfer and Sublease........... 15
Section 7.03. Insignia................................................. 19
ARTICLE 8
REPLACEMENT AND POOLING OF PARTS
Section 8.01. Replacement of Parts..................................... 20
Section 8.02. Pooling of Parts......................................... 21
ARTICLE 9
ALTERATIONS, MODIFICATIONS AND ADDITIONS
Section 9.01. Required Alterations and Modifications................... 21
Section 9.02. Other Alterations and Modifications...................... 22
ARTICLE 10
VOLUNTARY TERMINATION
Section 10.01. Right of Termination Upon Obsolescence or Surplus....... 23
Section 10.02. Retention of Aircraft by the Lessor..................... 26
Section 10.03. Voluntary Termination as to Engines..................... 27
ARTICLE 11
LOSS, DESTRUCTION, REQUISITION
Section 11.01. Lessee's Election Rights................................ 28
Section 11.02. Payment of Stipulated Loss Value........................ 28
Section 11.03. Replacement of Airframe and Engines..................... 29
Section 11.04. Event of Loss with Respect to an Engine................. 32
Section 11.05. Application of Payments from the Government or Others... 35
Section 11.06. Requisition of an Airframe and the Installed Engines for
Use by Government....................................... 36
Section 11.07. Requisition for Use by Government of an Engine Not
Installed on the Airframe............................... 36
Section 11.08. Application of Payments During Existence of Certain
Defaults................................................ 36
ARTICLE 12
RETURN OF AIRCRAFT
Section 12.01. Return of Aircraft...................................... 37
Section 12.02. Return of Engines....................................... 37
Section 12.03. Return of Manuals....................................... 38
Section 12.04. Condition of Aircraft................................... 38
Section 12.05. Delayed Return of Aircraft.............................. 40
Section 12.06. Storage................................................. 41
Section 12.07. Special Markings........................................ 41
Section 12.08. Lessor's Option to Purchase Parts....................... 41
ARTICLE 13
INSURANCE
Section 13.01. Comprehensive Airline Liability and Property Damage
Liability Insurance..................................... 42
Section 13.02. Insurance Against Loss or Damage to Aircraft and
Engines................................................. 44
Section 13.03. Application of Insurance Proceeds....................... 46
Section 13.04. Reports................................................. 47
Section 13.05. Lessor's Insurance...................................... 48
Section 13.06. Self-Insurance.......................................... 48
ARTICLE 14
INSPECTION
Section 14.01. Right of Inspection..................................... 49
Section 14.02. No Obligation to Inspect................................ 49
ARTICLE 15
ASSIGNMENT
Section 15.01. Lessee's Right to Assign................................ 50
Section 15.02. Citizenship............................................. 50
ARTICLE 16
EVENTS OF DEFAULT
Section 16.01. Events of Default....................................... 50
ARTICLE 17
REMEDIES
Section 17.01. Remedies Upon Lessee's Default.......................... 52
Section 17.02. Cumulative Remedies..................................... 55
Section 17.03. Waiver.................................................. 55
Section 17.04. Lessor's Right to Perform for Lessee.................... 56
ARTICLE 18
COVENANT OF QUIET ENJOYMENT
Section 18.01. Quiet Enjoyment......................................... 56
ARTICLE 19
FURTHER ASSURANCES
Section 19.01. Further Assurances...................................... 56
ARTICLE 20
NET LEASE
Section 20.01. Nature of Lease......................................... 57
ARTICLE 21
SUCCESSOR LESSOR
Section 21.01. Successor Lessor........................................ 58
ARTICLE 22
SECURITY FOR LESSOR'S OBLIGATIONS
Section 22.01. Security for Lessor's Obligations to Holders............ 59
Section 22.02. [Reserved].............................................. 59
Section 22.03. Consent of Lessee to Assignment of Lease as Security.... 59
ARTICLE 23
SECURITY FUNDS
Section 23.01. Investment of Security Funds............................ 60
ARTICLE 24
CONCERNING THE LESSOR
Section 24.01. Lessor's Entry Into Lease............................... 61
ARTICLE 25
NOTICES
Section 25.01. Notices................................................. 62
ARTICLE 26
MISCELLANEOUS
Section 26.01. Section Heading and Captions............................ 62
Section 26.02. References.............................................. 62
Section 26.03. APPLICABLE LAW.......................................... 62
Section 26.04. Severability............................................ 62
Section 26.05. No Oral Modification.................................... 62
Section 26.06. Agreement as Chattel Paper.............................. 63
Section 26.07. Counterparts............................................ 63
ARTICLE 27
TRUE LEASE
Section 27.01. Intent of the Parties................................... 63
Section 27.02. Section 1110 Compliance................................. 63
Section 27.03. Finance Lease........................................... 63
Schedule I Definitions
Schedule II Basic Rent
Schedule III Stipulated Loss Values
Schedule IV Termination Values
Schedule V Additional Purchase Option Provisions
Exhibit A Form of Lease Supplement
LEASE AGREEMENT
(FEDERAL EXPRESS CORPORATION TRUST NO. N584FE)
LEASE AGREEMENT (FEDERAL EXPRESS CORPORATION TRUST NO. N584FE) dated
as of May 1, 1997, as amended and restated as of February 1, 1998 (this
"Lease") between STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION, a national banking association, not in its individual capacity
but solely as Owner Trustee under the Trust Agreement (as defined in Article 1
below) (the "Lessor"), and FEDERAL EXPRESS CORPORATION, a Delaware corporation
(the "Lessee").
W I T N E S S E T H :
WHEREAS, all capitalized terms used herein shall have the meanings
assigned thereto as provided in Article 1 below;
WHEREAS, the Lessor and the Lessee have heretofore entered into the
Original Lease dated as of May 1, 1997;
WHEREAS, the Original Lease was not filed with the Federal Aviation
Administration; and
WHEREAS, subject to the terms and conditions set forth in the
Participation Agreement (as hereinafter defined), the Lessee desires, on the
Delivery Date (as hereinafter defined), to sell to and to lease from the
Lessor and the Lessor is willing to purchase from and lease to the Lessee the
Aircraft (as hereinafter defined) in accordance with the terms and conditions
set forth in this Lease.
NOW, THEREFORE, in consideration of the mutual promises herein, and
other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged by the parties, the Lessor and the Lessee agree that the
Original Lease be and the same is hereby amended and restated in its entirety
as follows:
ARTICLE 1
DEFINITIONS
Unless the context otherwise requires, the capitalized terms herein
shall have the meanings given in Schedule I hereto, for all purposes of this
Lease and shall be equally applicable to both the singular and the plural
forms of the terms defined.
ARTICLE 2
ACCEPTANCE UNDER THE LEASE
Section 2.01. Sale and Lease of Aircraft; Term. The Lessor, subject
to satisfaction or waiver of the conditions set forth in this Lease and in the
Participation Agreement, hereby agrees to purchase the Aircraft from the
Lessee, and the Lessee agrees to sell the Aircraft to the Lessor on the
Delivery Date and agrees immediately thereafter to lease the Aircraft to the
Lessee pursuant to this Lease, and the Lessee hereby agrees to lease the
Aircraft from the Lessor, such lease to be evidenced by the execution by the
Lessor and the Lessee of a Lease Supplement leasing the Aircraft hereunder.
The Lessee agrees that the Lessor will authorize one or more employees of the
Lessee, designated by the Lessee in writing, as the authorized representative
or representatives of the Lessor to accept delivery of the Aircraft pursuant
to the sale of the Aircraft described in the Participation Agreement. The
Lessee hereby agrees that in the event delivery of the Aircraft shall be
accepted by an employee or employees of the Lessee pursuant to such
authorization by the Lessor, such acceptance of delivery by such employee or
employees on behalf of the Lessor shall, without further act, irrevocably
constitute acceptance by the Lessee of the Aircraft for all purposes of this
Lease. Such lease shall last for the Term, at all times during which full
legal title to the Aircraft shall remain vested with the Lessor to the
exclusion of the Lessee, notwithstanding the possession and use thereof by the
Lessee or any other Person.
ARTICLE 3
RENT AND RENT ADJUSTMENT
Section 3.01. [Reserved].
Section 3.02. Basic Rent. The Lessee agrees to pay to the Lessor in
immediately available funds, on each Rent Payment Date, Basic Rent for the
Aircraft during the Basic Term, each payment being set forth on Schedule II
hereto opposite the applicable Rent Payment Date, subject to increase or
decrease as provided in Section 3.04 of this Lease. Each payment of Basic
Rent shall be made in arrears or in advance, all as stated in Schedule II
hereto. Each payment of Basic Rent designated as advance rent shall be
allocated over the six-month period beginning on the Rent Payment Date on
which such advance rent payment is scheduled to be made, and each installment
of Basic Rent that is designated as payable in arrears shall be accrued over
the six-month period ending on and including the day immediately preceding the
Rent Payment Date on which such arrears payment is scheduled to be made.
Section 3.03. Supplemental Rent. The Lessee agrees to pay or cause
to be paid to the Lessor, or to whomever shall be entitled to it, any and all
Supplemental Rent promptly as the same shall become due. If the Lessee fails
to pay any Supplemental Rent when due, the Lessor shall have all rights,
powers and remedies provided for in this Lease or in any other Operative
Agreement, or by law or equity or otherwise in the case of nonpayment of Basic
Rent. The Lessee will also pay to the Person entitled thereto, on demand, as
Supplemental Rent, to the extent permitted by applicable law, an amount equal
to interest at the Past Due Rate on any part of any installment of Basic Rent
not paid when due, for any period until the same shall be paid and on any
payment of Supplemental Rent not paid when due, for the period until the same
shall be paid. In addition, the Lessee will pay to the Lessor, as Supplemental
Rent, in the case of any prepayment of the Certificates pursuant to Section
6.02 of the Indenture (other than in connection with any prepayment or
purchase of the Certificates following an Indenture Event of Default not
attributable to an Event of Default), an amount equal to the aggregate amount
of any Make-Whole Premium payable on such prepayment or purchase. The
expiration or other termination of the Lessee's obligation to pay Basic Rent
shall not limit or otherwise modify the obligations of the Lessee with respect
to the payment of Supplemental Rent, except as otherwise provided in the
Operative Agreements.
Section 3.04. Adjustments to Basic Rent, Stipulated Loss Value,
Termination Value and EBO Price. Pursuant to and subject to the conditions
contained in Section 2.03 of the Participation Agreement, the percentages for
Basic Rent referred to in Schedule II hereto and the percentages for
Stipulated Loss Value and Termination Value referred to in Schedule III and
Schedule IV hereto, respectively, and the EBO Price shall be adjusted (upward
or downward) subject to the minimum value established by Section 3.05 hereof
and the definitions of Stipulated Loss Value, Termination Value and EBO Price,
to reflect (i) any costs and expenses paid by the Lessor or the Owner
Participant pursuant to Section 10.01 of the Participation Agreement being
greater or less than the Estimated Expense Amount, (ii) any Refinancing
pursuant to Section 15.01 of the Participation Agreement or (iii) the Delivery
Date being other than February 26, 1998. Each such adjustment pursuant to the
first sentence of this Section 3.04 shall maintain the Owner's Economic Return
through the EBO Date and the Basic Term (and, while maintaining such Owner's
Economic Return, minimize the aggregate Net Present Value of Rents to the
Lessee); provided, that in no event may the EBO Price be an amount less than
the estimate set forth in the Appraisal of the Fair Market Value of the
Aircraft at the time of exercise of the purchase option under Section
4.02(a)(F) hereof and provided further that, in calculating the Owner's
Economic Return, aggregate after-tax cash through the date on which the Lessee
may exercise the purchase option set forth in Section 4.02(a)(F) hereof may be
reduced by not more than 5%. The Owner Participant shall promptly notify the
Lessee and the Lessor and the Lessee shall promptly notify the Owner
Participant and the Lessor of the need for any such adjustment. As promptly as
feasible after any such notification, the Lessor shall furnish the Lessee with
a notice setting forth the amount of any such adjustments together with the
calculations upon which the adjustments are based; provided, however, that the
Lessor and the Owner Participant shall not be required to disclose to the
Lessee in such notice any confidential or proprietary information (including
methodology or assumptions) relating to such calculations. At the request
and, subject to the next succeeding sentence, expense of the Lessee, the
accuracy of the calculation of such adjustments and the consistency of the
calculation with the calculation used to determine Basic Rent, Stipulated Loss
Values, Termination Values and EBO Price shall be verified first, by First
Chicago Leasing Corporation or such other financial advisor chosen by the
Lessee and reasonably acceptable to the Lessor (it being agreed that the Owner
Participant shall not be obligated to provide to First Chicago Leasing
Corporation or such other financial advisor any information reasonably deemed
confidential by the Owner Participant) and second, if such adjustments are
still believed to be in error and are not reconciled with the Owner
Participant within fifteen (15) Business Days, by a firm of nationally
recognized independent public accountants selected by the Lessee and
reasonably acceptable to the Owner Participant and, in order to enable them to
verify such adjustments, the Owner Participant shall make available to such
accountants (for their own confidential use and not to be disclosed to the
Lessee or any other Person and subject to the execution of a confidentiality
agreement reasonably satisfactory to the Owner Participant) all information
reasonably necessary for such verification, including the name of the lease
analysis program used by the Owner Participant to calculate such adjustments.
The Lessee will pay the reasonable costs and expenses of the verification
process by the independent public accountants under this Section 3.04 unless
as a result of such verification process by the independent public accountants
Basic Rent is adjusted and such adjustment causes the Net Present Value of
Rents to decline by 10 or more basis points (in which event the Owner
Participant shall pay the reasonable costs and expenses of such verification
process by the independent public accountants). The Lessor and the Lessee
shall execute and deliver an amendment to this Lease to reflect each
adjustment under this Section 3.04.
All adjustments under this Section 3.04 shall be in compliance with
the requirements of Revenue Procedure 75-21, 1975-1 C.B. 715 and Sections
4.02(5), 4.07(1), 4.07(2) and 4.08(1) of Revenue Procedure 75-28, 1975-1 C.B.
752 and shall be structured so as to not cause the Lease to be a "disqualified
leaseback or long-term agreement" within the meaning of Section 467 of the
Code.
Section 3.05. Minimum Basic Rent. Notwithstanding any other
provisions of the Operative Agreements to the contrary, each installment of
Basic Rent due on each Rent Payment Date and not constituting an Excepted
Payment shall be, under any and all circumstances, an amount at least
sufficient to pay in full any installment of principal of and interest on the
Certificates required to be paid pursuant to the Certificates (other than
amounts becoming due on account of the exercise of remedies pursuant to
Article 17 hereof) on such Rent Payment Date.
Section 3.06. Payment to Indenture Trustee. All Rent payable by the
Lessee to the Lessor shall be paid to the Lessor c/o State Street Bank and
Trust Company, Xxx Xxxxxxxxxxxxx Xxxxx, 0xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
Attention: Corporate Trust Department, or as the Lessor may otherwise direct,
by wire transfer of immediately available funds in U.S. dollars with
sufficient information to identify sources and applications of such funds no
later than 10:30 a.m., New York time on the due date of such payment;
provided, however, that so long as the Lien of the Indenture shall not have
been discharged the Lessor hereby directs, and the Lessee agrees, that all
Rent (other than Excepted Payments, which shall be paid by the Lessee directly
to the Person entitled thereto) shall be paid directly to the Indenture
Trustee at its principal office at 00 Xxxxx Xxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxx
00000, Attention: Corporate Trust Department, or as the Indenture Trustee may
otherwise direct by wire transfer of immediately available funds in U.S.
dollars no later than 10:30 a.m., New York time, on the due date of such
payment. In any case where a scheduled Rent Payment Date shall not be a
Business Day such Rent Payment Date shall be adjourned to the next succeeding
Business Day without interest thereon for the period of such extension
(provided that payment is made on such next succeeding Business Day).
Section 3.07. Costs and Expenses. As between the Lessor and the
Lessee, all obligations under this Lease shall be done, performed and complied
with at the Lessee's cost and expense, whether or not so expressed, unless
otherwise expressly stated to the contrary.
ARTICLE 4
RENEWAL OPTIONS AND PURCHASE OPTIONS
Section 4.01. Renewal Options. (a) Election to Renew. The Lessee
shall provide the Lessor with irrevocable written notice (each a "Preliminary
Notice") not more than 360 and not less than 180 days prior to the end of the
Basic Term or, if applicable, any Renewal Term, whether it will exercise its
options either to renew this Lease pursuant to this Section 4.01 or to
purchase the Aircraft pursuant to Section 4.02(a)(B) or (C) hereof, as
applicable.
Provided that (i) no Payment Default, Bankruptcy Default or Event of
Default shall have occurred and be continuing at the time of renewal, (ii)
this Lease has not otherwise expired or terminated, and (iii) the Lessee shall
have timely delivered the respective Preliminary Notice, the Lessee may, by
irrevocable written notice delivered to the Lessor not less than 30 days prior
to the end of the Basic Term, extend the Term for a Fixed Renewal Term of one
(1) or two (2) periods up to an aggregate of two and one-half years commencing
on the expiration of the Basic Term. The Lessee shall pay the Fixed Renewal
Rent during any Fixed Renewal Term.
In addition, provided that (i) no Payment Default, Bankruptcy Default
or Event of Default shall have occurred and be continuing at the time of
renewal, (ii) this Lease has not otherwise expired or terminated, and (iii)
the Lessee shall have timely delivered the respective Preliminary Notice, the
Lessee may by irrevocable written notice delivered to the Lessor not less than
30 days prior to the end of the Basic Term or any Fixed Renewal Term, elect to
extend the Term for a Fair Market Renewal Term of one (1), two (2) or three
(3) years. The Lessee shall pay the Fair Market Rental during any Fair Market
Renewal Term.
(b) Terms and Conditions. Any such renewal shall be on the same
terms and conditions as provided herein, except that (i) rent for the Aircraft
due during any Renewal Term shall be payable semi-annually in arrears on the
dates corresponding to the Rent Payment Dates during such Renewal Term, and
(ii) during any Renewal Term, the Stipulated Loss Value for the Aircraft shall
as of any Stipulated Loss Value Determination Date during the Renewal Term be
equal to the greater of the Stipulated Loss Value on the last day of the Basic
Term and the Fair Market Value of the Aircraft as of the commencement of such
Renewal Term.
Section 4.02. Purchase Options. (a) Election to Purchase.
Provided that (i) this Lease has not otherwise expired or terminated, (ii) the
Lessee shall have previously given the Preliminary Notice under Section
4.01(a) hereof in the case of paragraphs (B) and (C) below or the applicable
notice for each other paragraph below, as the case may be, and (iii) if the
Lessee shall have elected to assume the Certificates in accordance with
Section 7.11 of the Participation Agreement, no Default or Event of Default
shall have occurred and be continuing on the applicable Termination Date, the
Lessee may:
(A) by written notice delivered to the Lessor, the Indenture Trustee
and the Owner Participant, not more than 360 days and not less than 45 days
prior to the applicable Termination Date, elect to terminate the Lease and
purchase the Aircraft on the Rent Payment Date falling on either July 15,
2011 or January 15, 2014, for, at the Lessee's option, either (1) an amount
in immediately available funds equal to the greater of the Fair Market
Value and the Termination Value on the applicable Termination Date or
(2)(i) the assumption by the Lessee, upon compliance with the provisions of
Section 7.11 of the Participation Agreement and Section 2.12 of the
Indenture, of all of the obligations of the Lessor under the Indenture, the
Certificates and Section 7.04 of the Participation Agreement and under the
other Operative Agreements and (ii) the payment to the Lessor of an amount
in immediately available funds equal to the excess of (A) the greater of
(I) the Termination Value for the Aircraft, computed as of the applicable
Termination Date and (II) the Fair Market Value of the Aircraft on the
Termination Date, over (B) the unpaid principal of the Certificates plus
accrued interest as of such Termination Date. Such notice shall either
direct the Lessor to prepay the Certificates in full on such Termination
Date pursuant to Section 6.02 of the Indenture or state that the Lessee
shall exercise its option to assume the Certificates pursuant to Section
7.11 of the Participation Agreement and Section 2.12 of the Indenture; or
(B) by irrevocable written notice delivered to the Lessor and the
Owner Participant not less than 30 days prior to the end of the Basic Term,
elect to purchase the Aircraft on the last day of the Basic Term for an
amount equal to the Fair Market Value thereof on such day; or
(C) by irrevocable written notice delivered to the Lessor and the
Owner Participant not less than 30 days prior to the end of any Renewal
Term, elect to purchase the Aircraft on the first day following such
Renewal Term at a price equal to the Fair Market Value of the Aircraft on
such day; or
(D) exercise the purchase option in this Section 4.02(a)(D) which is
more particularly described in Schedule V hereto by reference to this
Section 4.02(a)(D) and which shall be an option to purchase for an amount
not less than the greater of the amount specified in Schedule V hereto and
the Fair Market Value of the Aircraft at the time of exercise of the
purchase option under this Section 4.02(a)(D); or
(E) exercise the purchase option in this Section 4.02(a)(E) which is
more particularly described in Schedule V hereto by reference to this
Section 4.02(a)(E) and which shall be an option to purchase for an amount
not less than the greater of the amount specified in Schedule V hereto and
the Fair Market Value of the Aircraft at the time of exercise of the
purchase option under this Section 4.02(a)(E); or
(F) elect to purchase the Aircraft on January 15, 2016 (the "EBO
Date") for an amount specified therefor in Ancillary Agreement I (the "EBO
Price") and which amount shall not be less than the greater of (i) the
Termination Value as of such Rent Payment Date and (ii) the estimate set
forth in the Appraisal and Ancillary Agreement I of the Fair Market Value
of the Aircraft at the time of exercise of the purchase option under this
Section 4.02(a)(F).
The Lessee shall give the Lessor, the Owner Participant and the
Indenture Trustee not more than 120 days' and not less than 45 days' prior
written notice of its election to purchase pursuant to Section 4.02(a)(D),
4.02(a)(E) or 4.02(a)(F) hereof. Such notice shall either direct the Lessor
to prepay the Certificates in full on the applicable Termination Date pursuant
to Section 6.02 of the Indenture or state that the Lessee shall exercise its
option to assume the Certificates upon compliance with the provisions of
Section 7.11 of the Participation Agreement and Section 2.12 of the Indenture.
In the event that the Lessee shall have given notice to purchase the Aircraft
under Section 4.02(a)(A), 4.02(a)(D), 4.02(a)(E) or 4.02(a)(F) hereof and
shall fail to make payment (and, if applicable, assume the Certificates) on
the applicable Termination Date, the Lease shall continue and the Lessee shall
pay to the Owner Trustee any losses, costs and expenses of the Owner
Participant incurred in connection with such failure.
(b) Terms and Conditions. If the Lessee elects to purchase the
Aircraft pursuant to Section 4.02(a) hereof, the Lessee shall pay to the
Lessor on the applicable Termination Date by wire transfer of immediately
available funds any Basic Rent payable on such Termination Date (if payable in
arrears but not if in advance), the applicable purchase price together with
any amounts past due hereunder and all other Supplemental Rent then due under
this Lease including, without limitation, the aggregate amount of any
Make-Whole Premium applicable to any Certificate (if such purchase occurs
prior to the Premium Termination Date for such Certificate) and amounts due
under the Participation Agreement and the Tax Indemnity Agreement, whereupon
(and upon discharge of the Lien of the Indenture in accordance with Section
14.01 thereof), the Lessor will transfer to the Lessee, without recourse or
warranty (except as to the absence of Lessor's Liens (it being understood
that, in connection with such transfer, the Owner Participant shall be
responsible for removal of Lessor's Liens attributable to it, SSB shall be
responsible for removal of Lessor's Liens attributable to it and the Owner
Trustee shall be responsible for removal of Lessor's Liens attributable to the
Owner Trustee, all in accordance with Section 7.03(b) or 7.04(b) as the case
may be, of the Participation Agreement)), all of the Lessor's right, title and
interest in and to the Aircraft on an "as-is, where is" basis. In connection
with such transfer, the Lessee shall prepare and the Lessor shall execute or
arrange for the execution of a xxxx of sale evidencing such transfer and such
other documents as the Lessee may reasonably require. In connection with any
termination or proposed termination of this Lease, the Lessee shall pay at the
time of the applicable Termination Date, all related reasonable costs and
expenses of the Owner Participant, the Lessor and the Indenture Trustee.
Section 4.03. Appraisal Procedures. (a) Generally. Whenever Fair
Market Rental or Fair Market Value is required to be determined under this
Lease (unless otherwise provided herein), it shall be determined by the mutual
agreement of the Lessor and the Lessee in accordance with the definitions of
such terms in Schedule I hereto. The Lessor and the Lessee shall proceed to
determine Fair Market Value or Fair Rental Value no later than 90 days prior
to the date upon which the Lessee is required to give notice of its election
under Section 4.02 hereof. If the Lessee and the Lessor cannot agree within
twenty (20) days, such amount shall be determined by independent appraisal
conducted by appraisers selected pursuant to Section 4.03(b) hereof.
(b) Selection. If an independent appraisal is required pursuant to
this Lease, the Lessor and the Lessee shall consult for the purpose of
appointing a mutually acceptable, qualified aircraft appraiser. If they are
unable to agree on a single appraiser within ten (10) Business Days, then the
independent appraisal shall be arrived at by mutual agreement of two
nationally recognized, independent aircraft appraisers, one chosen by the
Lessor and one chosen by the Lessee, or, if such appraisers cannot agree on
the amount of such appraisal, their appraisals shall be treated in the manner
described in Section 4.03(c) hereof with an appraisal arrived at by a third
nationally recognized, independent aircraft appraiser chosen by the mutual
consent of such two appraisers; provided, however, that if either party shall
fail to appoint an appraiser within fifteen (15) Business Days after a written
request to do so by the other party, or if such two appraisers cannot agree on
the amount of such appraisal and fail to appoint a third appraiser within
twenty (20) Business Days after the date of the appointment of the second of
such appraisers, then either party may initiate an arbitration proceeding with
the American Arbitration Association for purposes of appointing a nationally
recognized, independent aircraft appraiser.
(c) Valuation. If one appraiser is chosen, the value determined by
such appraiser shall be final and binding upon the Lessor and the Lessee. If
two appraisers are chosen, one appraiser by the Lessor and one by the Lessee,
and such appraisers agree on the value, such value shall be final and binding
upon the Lessor and the Lessee. If three appraisers shall be appointed and
the difference between the determination which is farther from the middle
determination is more than 125% of the difference between the middle
determination and the third determination, then such farther determination
shall be excluded, the remaining two determinations shall be averaged, and
such average shall be final and binding upon the Lessor and the Lessee.
Otherwise, the average of all three determinations shall be final and binding
upon the Lessor and the Lessee.
(d) Rules of Appraisal. Any appraisal pursuant to this Section 4.03
shall be conducted in accordance with the commercial rules of the American
Arbitration Association as then in effect, as modified by this Section 4.03
and the definitions of Fair Market Value and Fair Market Rental. All expenses
of any independent appraisal shall be borne by the Lessee, except that, so
long as no Event of Default shall have occurred and be continuing, each of the
Lessee and the Owner Participant (in the case of the Lessor) shall bear any
fees, costs and expenses of its respective attorneys in connection with such
appraisal, except in the case of a revocation by the Lessee of its election to
terminate the Lease pursuant to Section 4.02 or Article 10 hereof, in which
case the Lessee shall pay all such fees, costs and expenses.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
Section 5.01. Disclaimer of Representations and Warranties. THE
LESSEE ACKNOWLEDGES AND AGREES THAT (i) THE AIRFRAME AND EACH ENGINE IS OF A
SIZE, DESIGN, AND CAPACITY AND MANUFACTURE SELECTED BY AND ACCEPTABLE TO THE
LESSEE, (ii) THE LESSEE IS SATISFIED THAT THE AIRFRAME AND EACH ENGINE IS
SUITABLE FOR ITS PURPOSES, (iii) NEITHER THE OWNER PARTICIPANT NOR THE LESSOR
IS A MANUFACTURER OR A DEALER IN PROPERTY OF SUCH KIND AND (iv) THE AIRFRAME
AND EACH ENGINE IS LEASED HEREUNDER SUBJECT TO ALL APPLICABLE LAWS AND
GOVERNMENTAL REGULATIONS, NOW IN EFFECT OR HEREAFTER ADOPTED, WITHOUT
REPRESENTATION OR WARRANTY OF ANY KIND BY THE LESSOR, THE INDENTURE TRUSTEE,
THE OWNER PARTICIPANT OR ANY HOLDER. THE LESSOR LEASES THE AIRFRAME AND EACH
ENGINE, AS-IS, WHERE-IS, AND, EXCEPT AS PROVIDED IN THE LAST SENTENCE OF THIS
SECTION 5.01, NEITHER THE LESSOR, THE INDENTURE TRUSTEE, THE OWNER PARTICIPANT
NOR ANY HOLDER MAKES, HAS MADE OR SHALL BE DEEMED TO HAVE MADE, AND EACH HAS
AND WILL HAVE BEEN DEEMED TO HAVE EXPRESSLY DISCLAIMED, ANY WARRANTY OR
REPRESENTATION EITHER EXPRESS OR IMPLIED, AS TO (A) THE TITLE, AIRWORTHINESS,
WORKMANSHIP, CONDITION, VALUE, FITNESS FOR ANY PARTICULAR USE OR PURPOSE,
DESIGN, OPERATION OR MERCHANTABILITY OF THE AIRFRAME, EACH ENGINE OR ANY PART
THEREOF, (B) THE ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT
DISCOVERABLE, (C) THE ABSENCE OF ANY INFRINGEMENT OF ANY PATENT, TRADEMARK OR
COPYRIGHT, (D) THE ABSENCE OF OBLIGATIONS BASED ON STRICT LIABILITY IN TORT,
(E) THE LESSOR'S TITLE THERETO, (F) THE LESSEE'S OR ANY SUBLESSEE'S RIGHT TO
THE QUIET ENJOYMENT THEREOF (EXCEPT AS PROVIDED IN ARTICLE 18 HEREOF) OR (G)
ANY OTHER MATTER WHATSOEVER. IT IS AGREED THAT ALL RISKS INCIDENT TO THE
MATTERS DISCUSSED IN THE PRECEDING SENTENCE, AS AMONG THE LESSOR, THE
INDENTURE TRUSTEE, THE OWNER PARTICIPANT AND THE LESSEE, ARE TO BE BORNE BY
THE LESSEE. The provisions of this Section 5.01 have been negotiated by the
Lessor and the Lessee and, except as provided in Article 7 of the
Participation Agreement, are intended to be a complete exclusion and negation
of any representations or warranties of the Lessor, the Indenture Trustee and
the Owner Participant, express or implied, with respect to the Airframe and
each Engine that may arise pursuant to any law now or hereafter in effect, or
otherwise.
Section 5.02. No Modification of Other Warranties. None of the
provisions of this Article 5 or any other provision of this Lease shall be
deemed to amend, modify or otherwise affect the representations, warranties or
other obligations (express or implied) of the Lessee, the Manufacturer or the
Engine Manufacturer or any of their respective subcontractors or suppliers,
with respect to the Airframe, the Engines or any Parts incorporated or
installed in or attached to the Airframe or Engines, which, in the case of the
Manufacturer or the Engine Manufacturer, have been assigned to the Lessor by
the Lessee, or to release the Lessee, the Manufacturer or the Engine
Manufacturer or any of their respective subcontractors or suppliers from any
such representation, warranty or obligation. So long as an Event of Default
shall not have occurred and be continuing under this Lease and to the extent
permitted under the applicable warranty, patent indemnity, or service-life
policy, (i) the Lessor shall assign or otherwise make available to the Lessee
such rights as the Lessor may have under any warranty, patent indemnity, or
service-life policy made or given by the Manufacturer or the Engine
Manufacturer or any of their respective subcontractors or suppliers, and any
other claims against the Manufacturer and the Engine Manufacturer or any such
subcontractor or supplier with respect to the Aircraft, including all rights to
demand, accept and retain all rights in and to property (other than the
Aircraft), data and services of any kind which the Manufacturer and the Engine
Manufacturer are obligated to provide and do provide pursuant to the
Modification Agreement or the GTA with respect to the Aircraft; and (ii) all
payments pursuant to any manufacturer's or subcontractor's warranty, patent
indemnity, or service-life policy obligation shall be paid to the Lessee and
the Lessee shall apply such payments to the cost of repair or correction of
any condition of the Aircraft which gave rise to such payments.
Section 5.03. Certain Agreements of the Lessee. The Lessee agrees
with the Lessor for the benefit of the Owner Participant that the Lessee shall
perform the agreements, covenants and indemnities of the Lessee set forth in
the Participation Agreement to the extent the same are applicable to the Owner
Participant, as fully and to the same extent and with the same force and
effect as if set forth in full in this Article 5.
ARTICLE 6
LIENS
Section 6.01. Liens. The Lessee will not directly or indirectly
create, incur, assume or suffer to exist, and will promptly, at its own cost
and expense, take such action as may be necessary to discharge, any Lien on or
with respect to the Lessor's Estate or this Lease or the Aircraft, the
Airframe or any Engine or any Part or title thereto or any interest therein
except:
(a) the respective rights of the Lessor and the Lessee as provided in
this Lease, the security interest and Lien of the Indenture and the rights
of the Owner Participant, the Lessor and the Indenture Trustee under the
Trust Agreement, the Indenture and the Participation Agreement;
(b) the rights of any sublessee or transferee under a sublease or a
transfer expressly permitted by the terms of this Lease;
(c) Lessor's Liens and Indenture Trustee's Liens to the extent
required to be discharged by the Owner Participant, the Lessor or the
Indenture Trustee, as the case may be, in accordance with Section 7.03(b),
7.04(b) or 7.05(b) of the Participation Agreement;
(d) Liens for Taxes imposed against the Lessee either not yet due or
being contested in good faith by appropriate proceedings so long as such
Liens or proceedings do not involve (i) any material risk of the sale,
forfeiture or loss of the Lessor's Estate, the Aircraft, the Airframe or
any Engine or any interest therein, (ii) any material risk of civil
liabilities or (iii) any risk of the assertion of criminal charges against
the Lessor, the Owner Participant, the Indenture Trustee or any Holder;
(e) materialmen's, mechanics', workmen's, repairmen's, employees' or
other like Liens arising against the Lessee in the ordinary course of the
Lessee's business for amounts the payment of which is either not yet due or
is being contested in good faith by appropriate proceedings so long as such
Liens or proceedings do not involve any material risk of the sale,
forfeiture or loss of the Lessor's Estate, the Aircraft, the Airframe or
any Engine or any interest therein; and
(f) Liens arising from judgments or awards against the Lessee with
respect to which (i) at the time an appeal or proceeding for review is
being prosecuted in good faith and with respect to which there shall have
been secured a stay of execution pending such appeal or proceeding for
review and then only for the period of such stay and (ii) there is not, and
such proceedings do not involve, any material risk of the sale, forfeiture
or loss of the Lessor's Estate, the Aircraft, Airframe or any Engine or any
interest therein.
ARTICLE 7
AIRCRAFT REGISTRATION, MAINTENANCE AND OPERATION
Section 7.01. Registration, Maintenance and Operation. The Lessee,
at its own cost and expense, shall:
(a) upon payment by the Lessor of the Purchase Price on the Delivery
Date, cause the Aircraft to be duly registered in the name of the Lessor as
owner, pursuant to the Transportation Code and, subject to the proviso to
Section 6.03(b) of the Participation Agreement, to remain at all times duly
registered pursuant to the Transportation Code and at all times act in
accordance with the rules and regulations of the Aeronautics Authority or
the applicable laws, rules and regulations of any other jurisdiction in
which the Aircraft may then be registered in accordance with Section
6.03(b) of the Participation Agreement;
(b) maintain, inspect, service, repair, test and overhaul the
Aircraft (or cause the same to be done) so as to keep the Aircraft (and any
engine which is not an Engine but is installed on the Aircraft) in as good
operating condition as when delivered to the Lessor on the Delivery Date,
ordinary wear and tear excepted, and in any event (i) in accordance with
all applicable laws and regulations and all requirements of the Aeronautics
Authority or of the regulatory agency or body of any other jurisdiction in
which the Aircraft may then be registered and the Lessee's maintenance
program approved by the Aeronautics Authority or such agency or body, (ii)
in the same manner and with the same care used by the Lessee with respect
to other XxXxxxxxx Xxxxxxx MD-11F series aircraft and CF6-80C2-D1F series
engines (or other engines permitted by the terms of this Lease to be used on
the Aircraft) owned, operated or leased by the Lessee, to the extent that
the same regulations, and the Lessee's FAA-approved maintenance program
shall apply to any such aircraft and related engines, owned or leased by
the Lessee, and utilized in similar circumstances, and without
discriminating against the Aircraft, with respect to its use, operation or
maintenance in contemplation of the expiration or termination of this Lease
other than withdrawal of the Aircraft from use and operation as is
necessary to prepare the Aircraft for return to the Lessor upon such
expiration or termination, and (iii) so as to keep the Aircraft in such
condition as may be necessary to enable its airworthiness certification to
be maintained in good standing at all times under the Transportation Code
or any applicable law, rule or regulation of the applicable regulatory
agency or body of any other jurisdiction in which the Aircraft may then be
registered;
(c) maintain, or cause to be maintained, all records, logs and other
materials in respect of the Aircraft required by the Aeronautics Authority,
or the applicable regulatory agency or body of any other jurisdiction in
which the Aircraft may then be registered, all such records and logs to be
maintained in the English language, to the extent required by the
Transportation Code and in the case of regularly maintained logs and major
check cards, to be maintained in the English language, regardless of the
requirements of the Federal Aviation Act (all of which records, logs and
other materials shall, as between the Lessor and the Lessee and all parties
claiming through the Lessee, be the property of the Lessor but shall become
the property of the Lessee upon purchase by the Lessee of the Aircraft
pursuant to the terms of this Lease or upon the occurrence of an Event of
Loss and the Lessee's compliance with Section 11.03 hereof);
(d) promptly furnish to the Lessor and the Owner Participant such
information within the Lessee's possession as may be required to enable the
Lessor and the Owner Participant to file any reports to be filed by the
Lessor and the Owner Participant with any governmental authority because of
the Lessor's ownership of or the Owner Participant's interest in the
Aircraft;
(e) not maintain, service, repair, overhaul, use or operate the
Aircraft or any Engine (or permit same with respect to the Aircraft or any
Engine) in violation of any airworthiness certificate or registration
relating thereto, or in violation of any law or any license, treaty, rule,
regulation or order of or by any government or governmental authority
having jurisdiction over the Lessee or the Aircraft or any Engine or for
any purpose for which the Aircraft or any Engine is not designed; provided,
however, that the Lessee (or if a sublease shall then be in effect, the
sublessee thereunder) may in good faith contest the validity or application
of any such law, license, treaty, rule, regulation or order in any manner
that does not adversely affect the Lessor, its right, title or interest in
the Aircraft or any Engine or the interests of the Indenture Trustee or the
Owner Participant therein, or in any Operative Agreement (excluding any
interests indemnified for under the Tax Indemnity Agreement) and such
contest or non-compliance will not result in any material risk of loss,
forfeiture or damage to the Aircraft or in any risk of criminal liability
to the Lessor, the Indenture Trustee or the Owner Participant; and if any
such law, license, rule, regulation or order requires alteration of the
Aircraft or any Engine, the Lessee will conform the same therewith at its
own cost and expense and will maintain the Aircraft or any Engine in
compliance with such law, license, rule, regulation or order; and
(f) not operate or locate the Airframe or any Engine, or suffer the
Airframe or any Engine to be operated or located in any area excluded from
coverage by any insurance policy required by the terms of Article 13
hereof, unless such operation or location is pursuant to the Civil Reserve
Air Fleet Program administrated pursuant to Executive Order No. 12056, as
amended (the "CRAF Program") or other use of the Aircraft by the Government
and (unless in the case of insurance, the Lessee certifies that such
insurance is unobtainable after diligent effort or is obtainable only on
unduly financially burdensome terms and conditions, which may include
unreasonably high rates), the Lessee has obtained, prior to the operation
or location of the Airframe or any Engine in such area, indemnification
from the Government, or other insurance, against the risks and in the
amounts required by, and in compliance with, Article 13 hereof covering
such area (and naming the Lessor, or so long as this Lease is assigned to
the Indenture Trustee, the Indenture Trustee, as sole loss payee in respect
of indemnification or insurance payable in respect of casualties to the
Aircraft) or unless the Aircraft is only temporarily located in such area
as a result of an isolated occurrence attributable to a hijacking, medical
emergency, equipment malfunction, weather conditions, navigational error or
other similar unforeseen circumstances and the Lessee is using its good
faith efforts to remove the Aircraft from such area.
The Lessor hereby agrees for the benefit of each lessor, conditional
seller, indenture trustee or secured party of any engine leased to, or
purchased by, the Lessee or any sublessee subject to a lease, conditional
sale, trust indenture or other security agreement that the Lessor, its
successors and assigns will not acquire or claim, as against such lessor,
conditional seller, indenture trustee or secured party, any right, title or
interest in any engine as the result of such engine being installed on the
Airframe at any time while such engine is subject to such lease, conditional
sale, trust indenture or other security agreement and owned by such lessor or
conditional seller or subject to a trust indenture or security interest in
favor of such indenture trustee or secured party.
Section 7.02. Possession and Permitted Transfer and Sublease. (a)
Conditions. The Lessee will not, without the prior written consent of the
Lessor, sublease or otherwise in any manner deliver, transfer or relinquish
possession of the Aircraft, the Airframe or any Engine or install any Engine,
or permit any Engine to be installed, on any airframe other than the Airframe;
provided, that, so long as (i)(A) in respect of subparagraph (i) of this
Section 7.02(a), no Event of Default shall have occurred and be continuing on
the date the sublease is entered into and (B) in respect of subparagraphs (v),
(vi), (vii) and (viii) of this Section 7.02(a), no Payment Default, Bankruptcy
Default or Event of Default shall have occurred and be continuing, (ii) the
Lessee shall comply with the provisions of Article 13 hereof, (iii) the Lien
of the Indenture is not impaired thereby, and (iv) all applicable governmental
approvals in connection therewith have been obtained, the Lessee may without
the prior written consent of the Lessor:
(i) after the seventh anniversary of the Commencement Date and so
long as the sublessee is generally meeting its obligations as they come due
and is not subject to a proceeding or final order under applicable
bankruptcy, insolvency, reorganization or similar laws on the date the
sublease is entered into, (A) sublease the Aircraft or any Engine to a U.S.
Air Carrier, (B) sublease the Aircraft to an Air Carrier which is
principally based in and domiciled in one of the countries listed on
Schedule III of the Participation Agreement, (C) sublease the Aircraft to
an Air Carrier that is principally based in and is a domiciliary of a
country which is a party to the International Convention on the Recognition
of Rights in Aircraft or (D) sublease the Aircraft to any other Air Carrier
not described in this Section which shall be reasonably acceptable to the
Lessor as evidenced by its prior written consent; provided, that, with
respect to clauses (B) and (C) above, at the time of any such sublease the
United States of America maintains normal diplomatic relations with the
country in which such Air Carrier is principally based and domiciled. In
the case of any sublease (w) if the sublessee is a government or
governmental body, such sublessee shall have effectively waived its rights
to sovereign immunity, (x) such sublease shall include the provisions
required by Section 7.02(b) hereof and expressly require the sublessee to
operate and maintain the Aircraft in compliance with the applicable
provisions of this Lease, (y) such sublease shall provide that such
sublessee will not further sublease or transfer possession of, or any other
rights to, the subleased Airframe or any Engine to any other Person without
the prior written consent of the Lessor (except as permitted by
subparagraphs (ii) through (viii) below) and (z) such sublease shall expire
not later than 180 days prior to the expiration of the Basic Term or any
applicable Renewal Term with respect to which the Lessee has given
irrevocable written notice and the Renewal Rent has been determined
pursuant to Section 4.01(a) hereof, unless the Lessee shall have given
irrevocable written notice of its election to purchase the Aircraft
pursuant to Section 4.02 hereof. Prior to any sublease to an Air Carrier
permitted under clause (C) or (D) of this Section 7.02(a)(i): (I) the
Lessee will provide opinions of counsel (such counsel and the form and
substance of such opinions to be reasonably satisfactory to the Lessor) (A)
with respect to the legality, validity and enforceability of the Operative
Agreements and the sublease in such country, (B) that the laws of such
country require fair compensation by the government of such country payable
in a currency freely convertible into U.S. dollars for the loss of the use
of or title to the Aircraft in the event of a requisition of use or title
by such government, (C) that the Lessor's title to the subleased equipment
will be recognized, (D) that the required agreement of such foreign air
carrier that its rights under the sublease are subject and subordinate to
all the terms of this Lease is enforceable against such foreign air carrier
under applicable law (subject only to customary exceptions to
enforceability), (E) that it is not necessary for the Owner Participant,
the Lessor or the Indenture Trustee to register or qualify to do business
in such country as a result of the proposed sublease or in order for such
Owner Participant, the Lessor or the Indenture Trustee to enforce the terms
and conditions of the Operative Agreements, (F) that there is no tort
liability of the owner of an aircraft not in possession thereof or of
Persons lending money to such an owner for the purchase of an aircraft,
under the laws of such jurisdiction other than tort liability which might
have been imposed on such owner or Persons under the laws of the United
States or any state thereof (it being understood that, in the event that
such latter opinion cannot be given in a form satisfactory to the Lessor,
such opinion shall be waived if insurance reasonably satisfactory to the
Lessor is available to cover such risk to the Owner Participant and is
provided at or before the execution of such a sublease (and is maintained
throughout the term of such sublease), at the Lessee's cost and expense)
and (G) that there exist no possessory rights in favor of such sublessee
under the laws of such jurisdiction which would, upon bankruptcy or
insolvency of the Lessee (and assuming that at such time the sublessee is
not bankrupt or insolvent) prevent the return of the Aircraft in accordance
with the terms of Article 12 hereof; (II) all necessary governmental
approvals required for the subleased equipment, the Airframe or any Engine,
as the case may be, to be imported and, to the extent reasonably
obtainable, exported from the applicable country of domicile upon
repossession of such subleased equipment by the Lessor (and the Lessee as
sublessor), shall have been procured at the Lessee's own cost and expense
by the Lessee prior to commencement of any such sublease; (III) duties and
tariffs, if applicable, shall be paid for by the Lessee; (IV) the Lessee
shall effect or cause to be effected at the Lessee's own cost and expense
all recordings and filings that are required to continue the Lessor's right,
title and interest to the Aircraft and rights under the Lease (and
sublease) and to perfect and maintain the priority of the Lien of the
Indenture; and (V) the Lessor shall have received assurances satisfactory
to it that the insurance provisions of Article 13 hereof have been complied
with;
(ii) subject the Airframe or permit the Airframe to be subjected to
normal interchange agreements or subject the Engines or permit any Engine
to be subjected to normal interchange or pooling agreements or
arrangements, in each case customary in the airline industry, entered into
by the Lessee in the ordinary course of its business with a vendor
domiciled in the United States or in a country with which the United States
maintains normal diplomatic relations or (x) any United States air carrier
certificated under Section 41102(a) of the Transportation Code or any
successor provision or (y) any "foreign air carrier" (as such term is
defined in the Transportation Code) as to which there is in force a permit
granted under Section 41302 of the Transportation Code and which is (I)
organized in a country listed on Schedule III to the Participation
Agreement, (II) organized in a country with which the United States then
maintains normal diplomatic relations, (III) is a party to the Convention
on the International Recognition of Rights in Aircraft or (IV) otherwise
provides equivalent protection to owners, lessors and mortgagees of
aircraft satisfactory to the Lessor; provided that no transfer of the
registration of the Airframe or any Engine shall be effected and that
throughout the period that the Airframe or any Engine is subjected to such
interchange or pooling agreement or arrangement the terms of this Lease
shall be observed; and provided, further, that no such agreement or
arrangement contemplates or requires the transfer of title to or
registration of the Airframe or any Engine, and if the Lessor's title to
any Engine (but in no case the Airframe) shall nonetheless be divested
under any such agreement or arrangement, such divestiture shall be deemed
to be an Event of Loss with respect to such Engine and the Lessee shall
comply with Section 11.04 of this Lease in respect of such Engine;
(iii) deliver or permit the delivery of possession of the Airframe or
any Engine to their respective manufacturers or certified maintenance
providers for testing, service, repair, maintenance or overhaul work or for
alterations or modifications in or additions to the Airframe or any Engine
to the extent required or permitted by the terms of Article 9 hereof;
(iv) transfer or permit the transfer of possession of the Airframe or
any Engine pursuant to a contract or agreement with the Government or
pursuant to the CRAF Program or any similar or substitute programs of the
Government, so long as the Lessee (or any permitted sublessee or transferee
pursuant to this Section) shall promptly notify the Lessor upon such
transfer of possession and provide the Indenture Trustee with the name and
address of the Contracting Officer or representative of the Military
Aircraft Command of the United States Air Force to whom notices must be
given in respect of the Aircraft;
(v) install or permit the installation of an Engine on an airframe
which is owned by the Lessee or any permitted sublessee free and clear of
all Liens, except (A) Liens of the type permitted under Section 6.01
hereof, (B) Liens which apply only to the engines (other than an Engine),
appliances, parts, instruments, appurtenances, accessories, furnishings and
other equipment (other than Parts) installed on such airframe and which do
not apply to substantially all of such airframe and (C) the rights of an
Air Carrier under normal interchange or pooling agreements which are
customary in the airline industry and do not contemplate or require the
transfer of title to such airframe or the engines installed on it;
(vi) install or permit the installation of an Engine on an airframe
leased to the Lessee or any permitted sublessee or transferee or purchased
by the Lessee subject to a conditional sale or other security agreement,
provided that (A) such lease, conditional sale or other security agreement
does not cover the Engine so installed and the Lessor and the Indenture
Trustee shall have received from the lessor, conditional vendor or secured
party of such airframe an agreement (which may be the lease or conditional
sale or other security agreement covering such airframe), whereby such
lessor, conditional vendor or secured party expressly agrees that neither
it nor its successors or assigns will acquire or claim any right, title or
interest in any Engine by reason of such Engine being installed on such
airframe at any time, and (B) such airframe is and remains free and clear
of all Liens except the rights of the parties to the lease or conditional
sale or other security agreement covering such airframe and Liens of the
type permitted by subparagraph (v) of this Section 7.02(a);
(vii) install or permit the installation of an Engine on an airframe
owned by the Lessee, leased to the Lessee or purchased by the Lessee
subject to a conditional sale or other security agreement under
circumstances where neither subparagraph (v) nor subparagraph (vi) of this
Section 7.02(a) is applicable, provided that such installation shall be
deemed an Event of Loss with respect to such Engine and the Lessee shall
comply with Section 11.04 hereof in respect of such Engine, the Lessor not
intending to waive any right, title or interest it may have to or in such
Engine under applicable law until compliance by the Lessee with such
Section 11.04; and
(viii) enter into a wet lease under which the Lessee has effective
control of the Aircraft in the ordinary course of the Lessee's business
which shall not be considered a transfer of possession hereunder, provided
that the Lessee's obligations under this Lease shall continue in full force
and effect notwithstanding any such wet lease.
(b) Rights of Transferee. Notwithstanding the provisions of Section
7.02(a) hereof, the rights of any transferee who takes possession of the
Aircraft, the Airframe or any Engine by reason of a transfer permitted by
Section 7.02(a) hereof shall be subject and subordinate to, and any sublease
or wet lease permitted by Section 7.02(a) hereof shall be made expressly
subject and subordinate to, all the terms of this Lease, including, without
limitation, the Lessor's right to repossession pursuant to Article 17 hereof
and to avoid such sublease upon such repossession, and the Lessee shall remain
primarily liable for the performance of all the terms of this Lease to the
same extent as if such sublease or transfer had not occurred and all the other
Operative Agreements shall remain in effect. Any such sublease shall include
appropriate provisions for the inspection (as required by Section 14.01
hereof) and insurance of the Aircraft, the Airframe and each Engine in
accordance with the provisions of this Lease and shall provide assurances
reasonably satisfactory to the Lessor that the sublessee shall not further
sublease any of such equipment. The Lessee shall notify the Lessor, the Owner
Participant and the Indenture Trustee within ten (10) Business Days after
consummation of any sublease of the Airframe with a term in excess of twelve
(12) months. The Lessee shall promptly provide the Lessor, the Owner
Participant and the Indenture Trustee a copy of any sublease having a term of
twelve (12) months or more, and, in the case of any other sublease, promptly
after a request therefor from any such Person.
(c) No Release of Lessee/Costs of Subleasing. No sublease,
interchange or pooling agreement or other relinquishment of possession
permitted under this Article 7 of any of the Aircraft, the Airframe or any
Engine shall in any way discharge or diminish any of the Lessee's obligations
to the Lessor, the Indenture Trustee or the Owner Participant under this
Lease, the Participation Agreement or the Tax Indemnity Agreement or
constitute a waiver of any of the Lessor's rights and remedies hereunder or
thereunder or extend beyond the end of the Term. Subject to the terms and
conditions of this Lease, the Lessee will retain the right to cure any default
by any sublessee permitted pursuant to this Section 7.02 and to terminate such
sublease upon such default. The Lessee shall pay all costs of the Owner
Participant, the Indenture Trustee and the Lessor incurred in connection with
any subleasing or proposed subleasing.
Section 7.03. Insignia. (a) Nameplate. On or prior to the
Delivery Date or as soon thereafter as possible, the Lessee agrees to affix to
and maintain in the cockpit of the Airframe, in a clearly visible location,
and on each Engine, a clearly visible metal nameplate bearing the inscription
"STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, AS
OWNER TRUSTEE, OWNER AND LESSOR," and, so long as such Airframe or Engines
shall be subject to the Lien of the Indenture, the additional inscription
"FIRST SECURITY BANK, NATIONAL ASSOCIATION, AS INDENTURE TRUSTEE, MORTGAGEE"
(such nameplate to be replaced, if necessary, with a nameplate reflecting the
name of any successor Lessor or successor Indenture Trustee, in each case as
permitted under the Operative Agreements).
(b) Lessee's Marks. Except as provided in clause (a) above, the
Lessee will not allow the name of any Person to be placed on the Airframe or
on any Engine as a designation that might be interpreted as a claim of
ownership; provided, that during the Term, the Lessee may cause the Aircraft
to be lettered "Federal Express Corporation" or may letter, paint or xxxx it
in some other appropriate manner for convenience of identification of the
Lessee's interest or the interest of any permitted sublessee (including but
not limited to the Lessee's or any permitted sublessee's customary colors and
insignia) and to bear insignia plates or other markings identifying the
supplier or manufacturer of the Airframe or the Engines or any Parts of either.
ARTICLE 8
REPLACEMENT AND POOLING OF PARTS
Section 8.01. Replacement of Parts. (a) Generally. The Lessee, at
its own cost and expense, will replace or cause to be replaced as promptly as
practicable all Parts which may from time to time be incorporated or installed
in or attached to the Airframe or any Engine and which may from time to time
become worn out, lost, stolen, destroyed, seized, confiscated, damaged beyond
repair or permanently rendered unfit for use for any reason, except as
otherwise provided in Section 9.01 or 9.02 hereof. In addition, the Lessee
may, at its own cost and expense, remove or cause to be removed in the
ordinary course of maintenance, service, repair, overhaul or testing, any
Parts, whether or not worn out, lost, stolen, destroyed, seized, confiscated,
damaged beyond repair or permanently rendered unfit for use, provided that the
Lessee, except as otherwise provided in Sections 9.01 or 9.02 hereof, will, at
its own cost and expense, replace such Parts as promptly as practicable. All
replacement parts shall be free and clear of Liens (except for pooling
arrangements to the extent permitted by Section 8.02 hereof and Liens
permitted under Section 6.01 hereof, other than clauses (d) and (f) thereof)
and shall be in at least as good operating condition as, and shall have a
value and utility at least equal to, the Parts replaced, and in any event not
less than the condition and repair required to be maintained by the provisions
of this Lease.
(b) Title. All Parts at any time removed from the Airframe or any
Engine shall remain the property of the Lessor until such Parts shall be
replaced by parts which have been incorporated or installed in or attached to
the Airframe or such Engine and which meet the requirements for replacement
parts specified in Section 8.01(a) hereof. Immediately upon any replacement
part (other than, to the extent permitted by Section 8.02 hereof, a
replacement part subject to a pooling arrangement) becoming incorporated or
installed in or attached to the Airframe or any Engine, and without further
act:
(i) title to the replaced Part shall vest in the Lessee, free and
clear of all rights of the Lessor, and such replaced Part shall no longer
be deemed a Part under this Lease;
(ii) title to such replacement part shall vest in the Lessor free and
clear of all Liens except for Liens permitted by Section 6.01 hereof (other
than clauses (d) and (f) thereof) and shall thereupon be and become a Part;
and
(iii) such replacement part shall become subject to this Lease and to
the Lien of the Indenture, and shall be deemed part of the Airframe or such
Engine for all purposes to the same extent as the Parts originally
incorporated or installed in or attached to the Airframe or such Engine.
Section 8.02. Pooling of Parts. Any Part removed from the Airframe
or any Engine as permitted in Section 8.01(a) hereof may be subjected by the
Lessee to any normal pooling arrangement customary in the U.S. airline
industry and entered into with vendors and other Air Carriers in the ordinary
course of the Lessee's business, provided that the part replacing such removed
Part shall be incorporated or installed in or attached to the Airframe or such
Engine in accordance with Section 8 hereof, as promptly as practicable after
the removal of such removed Part. In addition, any replacement part when
incorporated or installed in or attached to the Airframe or any Engine in
accordance with Section 8.01(a) hereof may be owned by another Air Carrier
subject to such normal pooling arrangement, provided that the Lessee, at its
own cost and expense and as promptly as possible, either:
(a) causes title to such replacement part to vest in the Lessor in
accordance with Section 8.01(b) hereof by the Lessee acquiring title to such
replacement part for the benefit of, and transferring such title to, the
Lessor free and clear of all Liens (other than Liens permitted under
Section 6.01 hereof (other than clauses (d) and (f) thereof)); or
(b) replaces such replacement part by incorporating or installing in
or attaching to the Airframe or such Engine a further replacement part
owned by the Lessee free and clear of all Liens (other than Liens permitted
under Section 6.01 hereof (other than clauses (d) and (f) thereof)) and by
causing title to such further replacement part to vest in the Lessor in
accordance with Section 8.01(b) hereof.
All such replacement parts and further replacement parts shall meet
the standards set forth in the last sentence of Section 8.01(a) hereof.
ARTICLE 9
ALTERATIONS, MODIFICATIONS AND ADDITIONS
Section 9.01. Required Alterations and Modifications. The Lessee,
at its own cost and expense, shall make or cause to be made such alterations
and modifications in and additions to the Airframe and each Engine as may be
required from time to time to comply with all applicable laws and to meet the
applicable requirements of the Aeronautics Authority or any other governmental
authority with jurisdiction over the Lessee's operations and aircraft;
provided, however, that the Lessee may in good faith contest the validity or
application of any such requirements in any reasonable manner that does not
involve any material risk of civil liabilities or any risk of criminal
penalties being imposed on or against the Indenture Trustee, the Owner
Participant or the Lessor, that does not involve any material risk of loss,
forfeiture or sale of the Aircraft or any Engine and that does not in the
Lessor's sole discretion adversely affect the Lessor (including the ability of
the Lessor to remarket the Aircraft), its title or interest in the Aircraft or
any Engine, the first and prior perfected Lien and security interest of the
Indenture, or the interests of the Indenture Trustee or the Owner Participant
in the Airframe or any Engine, or in any Operative Agreement (excluding any
interests indemnified for under the Tax Indemnity Agreement). All such
alterations, modifications or additions shall be made on or before the date
mandated therefor, taking into account authorized postponements resulting from
a contest or otherwise and shall be made at such time and in such a manner so
as not to discriminate against the Aircraft whether by reason of its leased
status or otherwise. Title to all alterations, modifications and additions
made pursuant to this Section 9.01 shall without further act vest in the
Lessor and become subject to this Lease.
Section 9.02. Other Alterations and Modifications. (a) Generally.
The Lessee, at its own cost and expense, may from time to time make such
alterations and modifications in and additions to the Airframe or any Engine
as the Lessee may deem desirable in the proper conduct of its business,
including, without limitation, removal (without replacement) of Obsolete
Parts, provided that the aggregate original cost of all Obsolete Parts so
removed and not replaced shall not exceed $500,000, provided further that no
such alteration, modification, addition or removal, individually or in the
aggregate, shall create any adverse tax consequences for the Owner Participant
not otherwise indemnified for, diminish the value, remaining useful life, or
utility of the Airframe or the value, utility and remaining useful life of any
Engine or impair its condition or airworthiness below its value, remaining
useful life, utility, condition and airworthiness immediately prior to such
alteration, modification, addition or removal, assuming that the Airframe or
such Engine was then in the condition and state of airworthiness required to
be maintained by the terms of this Lease, or cause the Airframe or any Engine
to become "limited use property" within the meaning of Revenue Procedure
76-30, 1976-2 C.B. 647, except that the value (but not the remaining useful
life, utility, condition or airworthiness) of the Aircraft may be reduced by
the value, if any, of any such Obsolete Parts which shall have been removed and
not replaced, to the extent permitted above, and provided further that the
Aircraft may not be converted to a passenger configuration.
(b) Title to Installed Parts. Title to each part incorporated or
installed in or attached or added to the Airframe or any Engine as the result
of any alteration, modification, removal or addition made pursuant to Section
9.01 or 9.02(a) hereof shall without further act vest in the Lessor and become
subject to this Lease; provided, however, that the Lessee may remove any such
Part (without replacing such Part) at any time during the Term if:
(i) such Part is in addition to, and not in replacement of or
substitution for, any Part originally incorporated or installed in or
attached or added to the Airframe or such Engine on the Delivery Date or
any Part in replacement of, or substitution for, any such Part;
(ii) such Part is not required to be incorporated or installed in or
attached or added to the Airframe or such Engine pursuant to the terms of
Article 7 hereof or the first sentence of Section 9.01 hereof;
(iii) such Part can be removed from the Airframe or such Engine
without (A) causing material damage to the Airframe or such Engine (it
being understood that the Lessee shall repair any damage caused by a
permitted removal) or diminishing or impairing the value, utility,
remaining useful life, condition or airworthiness required to be maintained
by the terms of this Lease or (B) diminishing the value, utility or
remaining useful life which the Airframe or such Engine would have had at
such time had such alteration, modification, removal or addition not
occurred, assuming the Airframe or such Engine was then in the condition
required to be maintained by the terms of this Lease; and
(iv) the cost of such Part was not paid by the Lessor.
(c) Title to Removed Parts. Upon the removal by the Lessee of any
such Part as provided in subsection (b) above, title thereto shall, without
further act, vest in the Lessee and such Part shall no longer be deemed a
Part. Any Part not removed by the Lessee as above provided prior to the
return of the Aircraft to the Lessor hereunder shall remain the property of
the Lessor and subject to this Lease.
ARTICLE 10
VOLUNTARY TERMINATION
Section 10.01. Right of Termination Upon Obsolescence or Surplus.
(a) Option to Terminate. So long as no Event of Default shall have occurred
and be continuing, the Lessee shall have the right, at its option, on any
Termination Date, on at least 90 days' prior written notice (which notice
shall state the proposed Termination Date (the "Proposed Termination Date"))
to the Lessor and the Owner Participant, to terminate this Lease as of a
Termination Date if the Aircraft shall have become obsolete or surplus to the
operations of the Lessee; provided that the Lessee shall have furnished to the
Lessor, the Indenture Trustee and the Owner Participant a certificate of the
Lessee's Assistant Treasurer or more senior financial officer stating the
determination of the Lessee that the Aircraft is obsolete or surplus to its
needs. Unless the Lessor has elected to retain the Aircraft as herein
provided, the Lessee shall have the right to revoke its notice of termination
not less than ten (10) days prior to the Proposed Termination Date whereupon
this Lease shall continue in full force and effect provided however, the
Lessee may not give more than three (3) additional termination notices
pursuant to this Section 10.01.
(b) Sale Procedure. During the period from the giving of notice
pursuant to Section 10.01(a) hereof until the Proposed Termination Date, the
Lessee, as non-exclusive agent for the Lessor, at the Lessee's expense, shall
use its reasonable efforts to obtain bids for the cash purchase on the
Proposed Termination Date (or such earlier date of sale as shall be consented
to in writing by the Lessor) of the Aircraft. On the Proposed Termination
Date (or such earlier date of sale), the Engines shall be installed on the
Airframe (provided that the Airframe may be sold with engines meeting the
requirements set forth herein for Replacement Engines in lieu of the Engines
so long as the aggregate number of Engines and Replacement Engines being sold
with the Airframe equals three). The Lessor may, if it desires to do so, seek
to obtain such bids. The Owner Participant shall not inspect any bids
received by the Lessee with respect to the Aircraft, unless the Owner
Participant has given to the Lessee binding and irrevocable notice that
neither the Owner Participant nor any of its Affiliates nor any Person acting
for the Owner Participant or such Affiliate will submit a bid for the purchase
of the Aircraft. The Lessee will provide the Lessor with copies of bids
received by the Lessee promptly upon the Lessee's receipt thereof. No bid may
be submitted by the Lessee or any Person affiliated with the Lessee (or with
whom or which there is any arrangement or understanding as to the subsequent
use of the Aircraft by the Lessee or any of its Affiliates) or any agent or
Person acting on behalf of the Lessee. The Lessee may reject any bid which is
less than the applicable Termination Value, the aggregate amount of any
Make-Whole Premium and all other expenses incurred by the Lessor, the Owner
Participant and the Indenture Trustee in connection with the sale. Subject to
the provisions of Section 10.02 hereof, on the Proposed Termination Date or
such earlier date of sale as shall be consented to in writing by the Lessor,
the Lessee shall deliver the Airframe which shall have the Engines installed
on it (provided that the Airframe may be delivered with installed engines
meeting the requirements set forth herein for Replacement Engines in lieu of
the Engines so long as the aggregate number of Engines and Replacement Engines
being delivered with the Airframe equals three and the Lessee shall comply
with the provisions of Section 11.04 hereof as if an Event of Loss occurred
with regard to the Engines) to the bidder which shall have submitted the
highest cash bid (whether certified to the Lessor by the Lessee or directly
received by the Lessor and certified to the Lessee) in the same manner and
condition as if delivery were made to the Lessor pursuant to Article 12 hereof
at a location specified by such bidder, and shall duly transfer to the Lessor
title to any such engines not owned by the Lessor, and the Lessor shall, upon
payment to the Lessor in full of the bid price and all amounts due and owing
pursuant to Section 10.01(c) hereof by wire transfer of immediately available
funds and upon discharge of the Lien of the Indenture in accordance with
Article 7 thereof, sell the Airframe and Engines or engines to such bidder
without recourse or warranty (except as to the absence of Lessor's Liens (it
being understood that, in connection with such transfer, the Owner Participant
shall be responsible for removal of Lessor's Liens attributable to it, SSB
shall be responsible for removal of Lessor's Liens attributable to it and the
Owner Trustee shall be responsible for removal of Lessor's Liens attributable
to the Owner Trustee, all in accordance with Section 7.03(b) or 7.04(b) as the
case may be, of the Participation Agreement)).
(c) Payments to the Lessor. The total selling price realized at a
sale pursuant to Section 10.01(b) hereof net of all expenses of the sale
(including commissions and any sales or transfer taxes) (the "Net Sales
Price") shall be retained by the Lessor (or the Indenture Trustee as long as
the Indenture is in force) and, in addition, on or before the Proposed
Termination Date (or any earlier date of sale), the Lessee shall pay to the
Lessor (or the Indenture Trustee as long as the Indenture is in force), by
wire transfer of immediately available funds, the sum of:
(1) the excess, if any, of the Termination Value for the Aircraft
computed as of the Proposed Termination Date (whether or not the date of
sale is on or prior to such Termination Date) over the Net Sales Price; plus
(2) the installment of Basic Rent due with respect to the Aircraft on
the Proposed Termination Date if payable in arrears but not if payable in
advance (whether or not the date of sale is on or prior to such Proposed
Termination Date); plus
(3) all other amounts then due and payable by the Lessee (including,
without limitation, the aggregate amount of any Make-Whole Premium, if the
Proposed Termination Date occurs prior to the applicable Premium Termination
Date) under this Lease or any other Operative Agreement.
(d) Transfer of Uninstalled Engines. Upon payment of the amounts
described in Section 10.01(c) hereof and upon transfer to the Lessor of title
to engines which have been returned in lieu of Engines as provided in Section
10.01(b) hereof, the Lessor will transfer to the Lessee, without recourse or
warranty (except as to the absence of Lessor's Liens (it being understood
that, in connection with such transfer, the Owner Participant shall be
responsible for removal of Lessor's Liens attributable to it, SSB shall be
responsible for removal of Lessor's Liens attributable to it and the Owner
Trustee shall be responsible for removal of Lessor's Liens attributable to the
Owner Trustee, all in accordance with Section 7.03(b) or 7.04(b) as the case
may be, of the Participation Agreement)), all of the Lessor's right, title and
interest in and to any Engines which were replaced with engines pursuant to
Section 10.01(b) hereof, and shall deliver to the Lessee such instrument as
the Lessor shall have received from the Indenture Trustee releasing such
Engines from the Lien of the Indenture.
(e) Limitation on the Lessor's Duties. The Lessor shall be under no
duty to solicit bids, to inquire into the efforts of the Lessee to obtain bids
or otherwise to take any action in connection with any such sale other than to
transfer to the purchaser named in the highest cash bid as referred to above
(or to such purchaser and to the Lessee, as the case may be), without recourse
or warranty (except as to the absence of Lessor's Liens (it being understood
that, in connection with such transfer, the Owner Participant shall be
responsible for removal of Lessor's Liens attributable to it, SSB shall be
responsible for removal of Lessor's Liens attributable to it and the Owner
Trustee shall be responsible for removal of Lessor's Liens attributable to the
Owner Trustee, all in accordance with Section 7.03(b) or 7.04(b) as the case
may be, of the Participation Agreement)), all of the Lessor's right, title and
interest in and to the Aircraft, against receipt by the Lessor of the payments
provided for.
(f) Termination of the Lessee's Obligations. Upon the sale of the
Aircraft pursuant to this Section 10.01 and upon compliance by the Lessee with
the further provisions of this Article 10, the obligation of the Lessee to pay
Basic Rent with respect to the Aircraft shall cease for any Rent Payment Date
occurring after the Proposed Termination Date and the Term shall end effective
as of the Proposed Termination Date. If no sale shall have occurred on or
before the Proposed Termination Date specified in the notice delivered by the
Lessee pursuant to Section 10.01(a) hereof, this Lease shall continue in full
force and effect and, for purposes of Section 10.01(a) hereof, it shall be
deemed that the Lessee has revoked its notice of termination, and the Lessee
shall pay the expenses incurred by the Lessor, the Indenture Trustee and the
Owner Participant in connection with the proposed sale.
Section 10.02. Retention of Aircraft by the Lessor. (a) Generally.
Notwithstanding Section 10.01 hereof, the Lessor may, subject to Section
10.02(b) hereof, elect to retain the Aircraft after receipt of the Lessee's
notice of termination given in accordance with Section 10.01(a) hereof, by
giving the Lessee and the Indenture Trustee written irrevocable notice of such
election not less than forty-five (45) days prior to the Proposed Termination
Date. If the Lessor so elects, the Lessee shall pay to the Lessor on the
Proposed Termination Date, by wire transfer of immediately available funds the
sum of:
(1) the installment of Basic Rent due with respect to the Aircraft on
the Proposed Termination Date if payable in arrears but not if payable in
advance; plus
(2) all other amounts then due and payable by the Lessee under this
Lease and any other Operative Agreement including, the aggregate amount of
any Make- Whole Premium (if the Proposed Termination Date occurs prior to
the applicable Premium Termination Date), on or prior to the Proposed
Termination Date.
(b) Payment of the Certificates. It shall be an absolute condition
precedent to the Lessor's right to retain the Aircraft and to the termination
of the Term pursuant to this Section 10.02 that the Lessor (or the Lessee to
the extent set forth in Section 10.02(a) hereof) shall have paid to the
Holders and such Holders shall have received the entire outstanding principal
amount of, the aggregate amount of any Make-Whole Premium and accrued interest
on the Certificates on the Proposed Termination Date and all other sums due
and owing to the Indenture Trustee and the Holders on or prior to the Proposed
Termination Date under this Lease, the Indenture or any other Operative
Agreement.
(c) Delivery of Aircraft to Lessor; Title to Engines. If the Lessor
elects to retain the Aircraft pursuant to this Section 10.02, the Lessee shall
deliver the Airframe and the Engines (provided that the Airframe may be
delivered with engines meeting the requirements set forth herein for
Replacement Engines in lieu of the Engines so long as the aggregate number of
Engines and engines being delivered with the Airframe equals three and
provided that the other requirements of Section 11.04 hereof are met as if an
Event of Loss has occurred with regard to the Engines) to the Lessor in the
same manner as if delivery were made to the Lessor pursuant to Article 12
hereof, and shall duly transfer to the Lessor right, title and interest to any
such engines not owned by the Lessor, all in accordance with Article 12
hereof. Upon such delivery of the Airframe and Engines or engines to the
Lessor and payment by the Lessee of any amounts required to be paid by the
Lessee pursuant to Section 10.02(a) hereof, the Lessor will transfer to the
Lessee, without recourse or warranty (except as to the absence of Lessor's
Liens (it being understood that, in connection with such transfer, the Owner
Participant shall be responsible for removal of Lessor's Liens attributable to
it, SSB shall be responsible for removal of Lessor's Liens attributable to it
and the Owner Trustee shall be responsible for removal of Lessor's Liens
attributable to the Owner Trustee, all in accordance with Section 7.03(b) or
7.04(b) as the case may be, of the Participation Agreement)), all of the
Lessor's right, title and interest in and to any Engines which were replaced
by engines pursuant to this Section 10.02(c), and shall deliver to the Lessee
such instrument as the Lessor shall have received from the Indenture Trustee
releasing such Engines from the Lien of the Indenture.
(d) Termination of the Lessee's Obligations. Upon compliance by the
Lessor and the Lessee with the provisions of this Section 10.02 and upon
compliance by the Lessee with the further provisions of this Article 10, the
obligation of the Lessee to pay Basic Rent with respect to the Aircraft shall
cease for any Rent Payment Date occurring after the Proposed Termination Date
and the Term shall end effective as of the Termination Date.
Section 10.03. Voluntary Termination as to Engines. So long as no
Event of Default shall have occurred and be continuing, the Lessee shall have
the right at its option and at any time, on at least thirty (30) days' prior
written notice to the Lessor, to terminate this Lease with respect to any
Engine not then installed or held for use on the Airframe, provided that prior
to the date of such termination, the Lessee shall comply with the terms of
Section 11.04 hereof to the same extent as if an Event of Loss had occurred
with respect to such Engine.
ARTICLE 11
LOSS, DESTRUCTION, REQUISITION
Section 11.01. Lessee's Election Rights. The Lessee shall notify
the Lessor, the Indenture Trustee and the Owner Participant as soon as
practicable but in no event more than 10 Business Days following the
occurrence of an event which constitutes or might constitute an Event of Loss
with respect to the Airframe or with respect to the Airframe and the Engines
or engines then installed on the Airframe. By written notice to the Lessor,
the Indenture Trustee and the Owner Participant given within 60 days of the
occurrence of any Event of Loss, the Lessee shall elect the alternative set
forth in Section 11.02 hereof or the alternative set forth in Section 11.03
hereof. The Lessee's failure to make such election within said 60-day period
shall be deemed to be an election of the alternative set forth in Section
11.02 hereof.
Section 11.02. Payment of Stipulated Loss Value. (a) The Lessee
shall, if it has so elected or is deemed to have so elected under Section
11.01 hereof, pay to the Lessor, by wire transfer of immediately available
funds on the earlier of (i) the fifteenth day following receipt in full of
insurance proceeds or requisition proceeds, described in Section 11.05 hereof,
in connection with such Event of Loss and (ii) the 120th day after the
occurrence of such Event of Loss (the earlier of such dates being referred to
herein as the "Loss Payment Date"), the sum of (A) the Stipulated Loss Value
for the Aircraft, determined as of the Stipulated Loss Value Determination
Date next preceding the Loss Payment Date (or, if the Loss Payment Date occurs
on a Stipulated Loss Value Determination Date, determined as of such
Stipulated Loss Value Determination Date) together with interest on such
amount at the Debt Rate from such Stipulated Loss Value Determination Date to
the Loss Payment Date, plus (B) any and all Basic Rent due and payable on or
prior to the relevant Stipulated Loss Value Determination Date and unpaid,
plus (C) any and all Supplemental Rent due and payable on or prior to such
Loss Payment Date and all Supplemental Rent accrued through such date, plus
(D) all other amounts owing by the Lessee or the Owner Trustee to the Indenture
Trustee or the Holders under the Indenture and the other Operative Agreements,
plus (E) any reasonable out-of-pocket expenses incurred in connection with
such Event of Loss and the related prepayment of the Certificates by the
Lessor, the Owner Participant and the Indenture Trustee, minus (F) if the
relevant Stipulated Loss Value Determination Date is a Rent Payment Date, the
portion, if any, of the Basic Rent installment due and paid by the Lessee on
such Stipulated Loss Value Determination Date pursuant to Section 3.02 hereof
to the extent such Basic Rent installment (or portion thereof) is designated
on Schedule II hereto as being payable in advance, together with an imputed
interest amount in respect of such advance payment of Basic Rent (or portion
thereof) at the Debt Rate from the date of payment of such Basic Rent
installment (or portion thereof) by the Lessee to the Loss Payment Date;
provided that in no event shall there be subtracted pursuant to clause (F) an
amount such that the Holders shall not be paid in full.
(b) Termination of Lease; Title Transfer. The obligation of the
Lessee to pay Basic Rent on any Rent Payment Date occurring subsequent to the
Loss Payment Date shall, upon payment of the amounts specified in Section
11.02(a) hereof, terminate and the Term shall end on such Loss Payment Date.
Further, upon such payment, the Lessor will transfer to the Lessee, without
recourse or warranty (except as to the absence of Lessor's Liens (it being
understood that, in connection with such transfer, the Owner Participant shall
be responsible for removal of Lessor's Liens attributable to it, SSB shall be
responsible for removal of Lessor's Liens attributable to it and the Owner
Trustee shall be responsible for removal of Lessor's Liens attributable to the
Owner Trustee, all in accordance with Section 7.03(b) or 7.04(b) as the case
may be, of the Participation Agreement)), all of the Lessor's right, title and
interest in and to the Airframe and Engines with respect to which such Event
of Loss occurred, as well as all of the Lessor's right, title and interest in
and to any Engines constituting part of the Aircraft but not installed on the
Airframe when such Event of Loss occurred, and will deliver to the Lessee such
instrument as the Lessor shall have received from the Indenture Trustee,
releasing the Aircraft from the Lien of the Indenture.
Section 11.03. Replacement of Airframe and Engines. (a) Generally.
So long as no Payment Default, Bankruptcy Default or Event of Default shall
have occurred and be continuing, and subject to Section 11.01 hereof, if the
Lessee has elected to replace the Airframe and Engines suffering an Event of
Loss pursuant to this Section 11.03, the Lessee shall cause to be duly
conveyed to the Lessor within one hundred twenty (120) days after the
occurrence of such Event of Loss, as replacement for the Airframe and Engines
with respect to which such Event of Loss has occurred, good and marketable
title to a XxXxxxxxx Xxxxxxx MD-11F airframe (the "Replacement Airframe") and
good and marketable title to a number of Replacement Engines equal to the
number of Engines with respect to which an Event of Loss has occurred, provided
that following compliance with all other terms of this Section 11.03 all three
Engines shall be of identical make and model and, in the case of such
Replacement Airframe and each such Replacement Engine, owned by the Lessee
free and clear of all Liens not excepted in Section 6.01 hereof, other than
Sections 6.01(b),(d) and (f) hereof, duly certified as an airworthy aircraft
by the Aeronautics Authority, and having a value, remaining useful life and
utility, at least equal to, and being in as good operating condition as, the
Airframe and Engines with respect to which such Event of Loss occurred,
assuming that the Airframe and Engines were then in the condition and state
of airworthiness required to be maintained by the terms of this Lease
immediately prior to the occurrence of such Event of Loss. In such case and
as a condition to such substitution the Lessee, at its own cost and expense,
will also promptly:
(i) furnish the Indenture Trustee with originals of, and the Lessor
with copies of, full warranty bills of sale, in form and substance
satisfactory to the Lessor and the Indenture Trustee, with respect to such
Replacement Airframe and Replacement Engines together with an assignment in
form and substance satisfactory to the Lessor and the Indenture Trustee of
any and all manufacturer's warranties applicable thereto and a consent
reasonably satisfactory to the Lessor and the Indenture Trustee from such
manufacturer or manufacturers to such assignment;
(ii) cause such Replacement Airframe and Replacement Engines to be
duly registered in the name of the Lessor pursuant to the Transportation
Code or the applicable laws of any other jurisdiction in which the Aircraft
may then be registered in accordance with Section 6.03(b) of the
Participation Agreement;
(iii) cause a Lease Supplement with respect to such Replacement
Airframe and Replacement Engines to be duly executed by the Lessee and
recorded pursuant to the Transportation Code, or the applicable laws, rules
and regulations of any other jurisdiction in which the Aircraft may then be
registered as permitted by Section 6.03(b) of the Participation Agreement;
(iv) furnish the Lessor, the Indenture Trustee and the Owner
Participant with an appraisal or other report of a nationally recognized
aircraft appraiser based on an inspection of such Replacement Airframe and
Replacement Engines reasonably satisfactory to the Indenture Trustee and
the Owner Participant certifying that such Replacement Airframe and such
Replacement Engines have a value, remaining useful life and utility, at
least equal to, and are in as good operating condition as, the Airframe and
Engines replaced, assuming such Airframe and Engines were in the condition
and repair required by the terms of this Lease immediately prior to the
occurrence of such Event of Loss;
(v) furnish the Lessor, the Indenture Trustee and the Owner
Participant with such evidence as the Lessor or the Indenture Trustee may
reasonably request of compliance with the insurance provisions of Article
13 hereof with respect to such Replacement Airframe and Replacement Engines;
(vi) provide the Owner Participant and the Lessor with (A) an opinion
of counsel selected by the Owner Participant and reasonably acceptable to
the Lessee (which opinion shall be reasonably satisfactory in form and
substance to the Owner Participant and the Lessor) that the Owner
Participant and the Lessor will suffer no adverse tax consequence not
otherwise indemnified for as of the Delivery Date as a result of such
substitution or (B) an indemnity reasonably acceptable to the Owner
Participant and the Lessor against such consequences;
(vii) comply with the provisions of Section 9.08 of the Indenture;
(viii) cause an Indenture and Security Agreement Supplement with
respect to such Replacement Airframe and Replacement Engines to be duly
executed by the Lessor and the Indenture Trustee and recorded pursuant to
the Transportation Code, or the applicable laws, rules and regulations of
any other jurisdiction in which the Aircraft may then be registered as
permitted by Section 6.03(b) of the Participation Agreement in order that
the Lien of the Indenture shall constitute a first priority, duly perfected
Lien and security interest on and in respect of such Replacement Airframe
and Replacement Engines;
(ix) take such other action, including the filing of UCC financing
statements naming the Indenture Trustee as a secured party with the
Secretary of State of Connecticut and the filing of a notice with the
Secretary of State of Tennessee, as the Lessor or the Indenture Trustee may
reasonably request in order that such Replacement Airframe and Replacement
Engines shall be duly and properly titled in the Lessor, leased under this
Lease and subjected to the Lien of the Indenture to the same extent as the
replaced Airframe and Engines;
(x) furnish the Indenture Trustee with an opinion (reasonably
satisfactory in form and substance to the Lessor, the Owner Participant and
the Indenture Trustee) of counsel to the Lessee (which may be the Lessee's
General Counsel) addressed to the Indenture Trustee and the Owner
Participant to the effect that (A) the Lessor has good title to such
Replacement Airframe and Replacement Engines free and clear of all Liens
(except for Liens permitted under Section 6.01 hereof, other than Sections
6.01(b),(d) and (f) thereof) and (B) such Replacement Airframe and
Replacement Engines have been validly subjected to the Lien of the Indenture
(with the effect and result that the Indenture constitutes a first priority
duly perfected security interest and Lien on such Replacement Airframe and
Replacement Engines); and
(xi) cause to be delivered to the Lessor, the Owner Participant and
the Indenture Trustee an opinion of counsel to the Lessee addressed to the
Lessor, the Owner Participant and the Indenture Trustee as to the due
registration of the Aircraft and the due recordation of the requisite
documents or instruments and the validity and perfection of the Lien in
such Replacement Airframe and Replacement Engines.
(b) Title to Replaced Equipment. Upon compliance by the Lessee with
the terms of Section 11.03(a) hereof, the Lessor will transfer to the Lessee
(subject to any insurer's salvage rights), without recourse or warranty
(except as to the absence of Lessor's Liens (it being understood that, in
connection with such transfer, the Owner Participant shall be responsible for
removal of Lessor's Liens attributable to it, SSB shall be responsible for
removal of Lessor's Liens attributable to it and the Owner Trustee shall be
responsible for removal of Lessor's Liens attributable to the Owner Trustee,
all in accordance with Section 7.03(b) or 7.04(b) as the case may be, of the
Participation Agreement)), all of the Lessor's right, title and interest, if
any, in and to the Airframe and Engines with respect to which such Event of
Loss occurred. In connection with such transfer, the Lessee will prepare, and
the Lessor will execute or forward to the Indenture Trustee for execution, as
the case may be, a xxxx of sale evidencing such transfer and will deliver to
the Lessee such instrument as the Lessor shall have received from the
Indenture Trustee releasing the Aircraft from the Lien of the Indenture. Any
Engine constituting part of the Aircraft, but not installed on the Airframe
when such Event of Loss occurred, shall continue to be property of the Lessor
and leased under this Lease as part of the same equipment as the Replacement
Airframe and Replacement Engines.
(c) Definitions. Each Replacement Airframe and Replacement Engine
shall be deemed part of the property leased under this Lease, each such
Replacement Airframe shall be deemed an "Airframe," each such Replacement
Engine shall be deemed an "Engine" and each such Replacement Airframe and
Replacement Engine shall be deemed part of the same Aircraft as was the
Airframe or Engine replaced.
(d) Rent Adjustments. An Event of Loss covered by this Section
11.03 shall not result in any change in Basic Rent, Stipulated Loss Values or
Termination Values but may result in payments pursuant to the Tax Indemnity
Agreement and the Participation Agreement.
(e) Time Limitations. If the Lessee has elected to proceed under
this Section 11.03 but has not fully performed its obligations under this
Section 11.03 within 120 days of the occurrence of the applicable Event of
Loss, in the event that any amounts held by the Lessor (or, so long as the
Indenture shall be in effect, the Indenture Trustee) in respect of such Event
of Loss are less than the Stipulated Loss Value otherwise payable in respect
thereof, the Lessee will deposit with the Lessor or the Indenture Trustee, as
the case may be, the amount of any deficiency as security on such 120th day.
If the Lessee has elected to proceed under this Section 11.03 but has not
fully performed its obligations under this Section 11.03 within 180 days of the
occurrence of such Event of Loss, the Lessee shall be deemed to have elected to
proceed under Section 11.02 hereof and shall immediately perform its
obligations thereunder, and the Lessor (or the Indenture Trustee, as the case
may be), shall apply the amounts held by it pursuant to the preceding sentence
as a credit against such obligations.
Section 11.04. Event of Loss with Respect to an Engine. (a)
Generally. Upon the occurrence of an Event of Loss with respect to an Engine
under circumstances in which there has not occurred an Event of Loss with
respect to the Airframe, the Lessee shall give the Lessor and the Indenture
Trustee prompt written notice thereof and shall, as soon as practicable but in
any event within sixty (60) days after the occurrence of such Event of Loss,
duly convey or cause to be conveyed to the Lessor, a Replacement Engine for
the Engine with respect to which such Event of Loss occurred, good and
marketable title to a Replacement Engine, free and clear of all Liens not
excepted in Section 6.01 hereof, other than Sections 6.01(b),(d) and (f)
hereof, and having a value, remaining useful life and utility at least equal
to, and being in as good operating condition as, the Engine with respect to
which such Event of Loss occurred, assuming such Engine was of the value,
remaining useful life and utility and in the condition and repair required by
the terms of this Lease immediately prior to the occurrence of such Event of
Loss, provided that after any replacement, all three Engines shall be of
identical make and model and any Replacement Engines of a different
manufacturer than the original Engines shall then be commonly in use in the
commercial aviation industry on XxXxxxxxx Xxxxxxx MD-11 airframes. The
standards set forth in this Section with respect to Replacement Engines shall
apply upon any replacement or substitution of an Engine with a Replacement
Engine pursuant to any other provision of this Lease.
(b) Conditions Precedent. Prior to or at the time of any conveyance
of an Engine pursuant to Section 11.04(a) hereof, the Lessee, at its own cost
and expense will:
(i) furnish the Indenture Trustee with an original of, and the Lessor
with a copy of, a full warranty xxxx of sale, in form and substance
satisfactory to the Lessor, with respect to such Replacement Engine
together with an assignment in form and substance satisfactory to the
Lessor and the Indenture Trustee of any and all manufacturer's warranties
applicable thereto and a consent reasonably satisfactory to the Lessor and
the Indenture Trustee from such manufacturer to such assignment;
(ii) cause a Lease Supplement covering such Replacement Engine to be
duly executed by the Lessee and filed for recordation pursuant to the
Transportation Code, or the applicable laws, rules and regulations of any
other jurisdiction in which the Aircraft may then be registered as
permitted by Section 6.03(b) of the Participation Agreement and, if the
Engine being replaced was registered under the applicable laws of the
jurisdiction in which the Aircraft is then registered, the Replacement
Engine shall be registered in the same fashion;
(iii) furnish the Lessor and the Indenture Trustee with a
certificate of a nationally recognized aircraft appraiser reasonably
satisfactory to the Lessor certifying that such Replacement Engine has a
value, utility and remaining useful life at least equal to, and is in as
good operating condition as, the Engine replaced, assuming such Engine was
in at least the condition and repair required by the terms of this Lease
immediately prior to the occurrence of such Event of Loss;
(iv) furnish the Lessor with such evidence of compliance with the
insurance provisions of Article 13 hereof with respect to such Replacement
Engine as the Lessor or the Indenture Trustee may reasonably request;
(v) comply with the provisions of Section 9.08 of the Indenture;
(vi) cause an Indenture and Security Agreement Supplement with respect
to such Replacement Engine to be duly executed by the Lessor and the
Indenture Trustee and recorded pursuant to the Transportation Code, or the
applicable laws, rules and regulations of any other jurisdiction in which
the Aircraft may be registered as permitted by Section 6.03(b) of the
Participation Agreement in order that the Indenture shall constitute a
first priority duly perfected Lien and security interest on and in respect
of such Replacement Engine;
(vii) take such other action, including the filing of UCC financing
statements naming the Indenture Trustee as Secured Party with the Secretary
of State of Connecticut and a notice filing with the Secretary of State of
Tennessee, as the Lessor or the Indenture Trustee may reasonably request in
order that such Replacement Engine be duly and properly titled in the
Lessor, leased under this Lease and subjected to the Lien of the Indenture
to the same extent as the replaced Engine;
(viii) furnish the Lessor, the Owner Participant and the Indenture
Trustee with an opinion (reasonably satisfactory in form and substance to
the Lessor, the Owner Participant and the Indenture Trustee) of counsel to
the Lessee (which may be the Lessee's General Counsel) addressed to the
Indenture Trustee and the Owner Participant to the effect that (A) the
Lessor has good title to such Replacement Engine free and clear of all
Liens (except for Liens permitted under Section 6.01 hereof, other than
Sections 6.01(b), (d) and (f) hereof), and (B) such Replacement Engine has
been validly subjected to the Lien of the Indenture (with the effect and
result that the Indenture constitutes a first priority duly perfected
security interest and Lien on such Replacement Engine); and
(ix) take such other action as the Indenture Trustee may reasonably
request in order that such Replacement Engine be duly and properly
subjected to the Lien of the Indenture to the same extent as the replaced
Engine.
(c) Title Transfer. Upon compliance by the Lessee with the terms of
Sections 11.04(a) and (b) hereof, the Lessor will transfer to the Lessee
(subject to any insurer's salvage rights), without recourse or warranty
(except as to the absence of Lessor's Liens (it being understood that, in
connection with such transfer, the Owner Participant shall be responsible for
removal of Lessor's Liens attributable to it, SSB shall be responsible for
removal of Lessor's Liens attributable to it and the Owner Trustee shall be
responsible for removal of Lessor's Liens attributable to the Owner Trustee,
all in accordance with Section 7.03(b) or 7.04(b) as the case may be, of the
Participation Agreement)), all of the Lessor's right, title and interest, if
any, in and to the Engine with respect to which such Event of Loss occurred.
In connection with such transfer, the Lessee will prepare, and the Lessor will
execute or forward to the Indenture Trustee for execution, as the case may be,
a xxxx of sale evidencing such transfer and will deliver to the Lessee such
instrument as the Lessor shall have received from the Indenture Trustee,
releasing the Aircraft from the Lien of the Indenture. Each Replacement
Engine shall, after such conveyance, be deemed part of the property leased
under this Lease. An Event of Loss covered by this Section 11.04 shall not
result in any change in Basic Rent, Stipulated Loss Values or Termination
Values, but may result in payments to be made pursuant to the Tax Indemnity
Agreement and the Participation Agreement.
Section 11.05. Application of Payments from the Government or
Others. (a) Generally. Any payments (other than insurance proceeds the
application of which is provided for in Section 13.03 hereof) received at any
time by the Lessor or by the Lessee from any governmental authority or any
other Person, foreign or domestic, with respect to an Event of Loss resulting
from the condemnation, confiscation, theft or seizure of, or requisition of
title to or use of, the Airframe or any Engine will be applied, as
appropriate, in accordance with Section 11.05(b) or Section 11.05(c) hereof.
(b) Payments of Stipulated Loss Value. If the payments described in
Section 11.05(a) hereof are received with respect to the Airframe or with
respect to the Airframe and Engines or engines then installed on the Airframe
and the Lessee has elected the alternative set forth in Section 11.02 hereof,
so much of such payments as shall not exceed the amount required to be paid by
the Lessee pursuant to Section 11.02 hereof shall be paid to the Lessor (or,
if the Lien of the Indenture has not been discharged, the Indenture Trustee)
in reduction of the Lessee's obligations under Section 11.02 hereof if not
already paid by the Lessee, or, if such obligations have already been
discharged in full by the Lessee, subject to Section 11.08 hereof, such
payments shall be applied to reimburse the Lessee for its payment of such
Stipulated Loss Value and, if and to the extent specifically included in such
payment, to pay to the Lessee interest on such amount of Stipulated Loss Value
at the rate included in such payment if any. The excess, if any, remaining
after such application shall be divided between the Lessor and the Lessee as
their respective interests may appear.
(c) Payment if the Lessee Elects Replacement. If the payments
described in Section 11.05(a) hereof are received with respect to the Airframe
or with respect to the Airframe and the Engines or engines then installed on
the Airframe and the Lessee has elected the alternative set forth in Section
11.03 hereof, or if such payments are received with respect to an Engine not
then installed on the Airframe under the circumstances contemplated by Section
11.04 hereof, all such payments shall, subject to Section 11.08 hereof, be
paid over to or retained by the Lessee, provided that the Lessee shall have
fully performed its obligations pursuant to Section 11.03 or Section 11.04
hereof, as the case may be, with respect to the Event of Loss for which such
payments are made.
Section 11.06. Requisition of an Airframe and the Installed Engines
for Use by Government. In the event of the requisition for use by the
Government or any other government of registry of the Aircraft, or any agency
or instrumentality of either (a "Requisitioning Government") of the Airframe
and the Engines or engines then installed on the Airframe during the Term,
which requisition does not constitute an Event of Loss, the Lessee shall
promptly notify the Lessor, the Indenture Trustee and the Owner Participant of
such requisition and all of the Lessee's obligations under this Lease with
respect to such Airframe and Engines or engines shall continue to the same
extent as if such requisition had not occurred except to the extent that any
failure or delay in the performance or observance of such obligations (other
than obligations for the payment of Rent) by the Lessee shall have been caused
by such requisition. All payments received by the Lessor, the Lessee or any
permitted sublessee or transferee from the Requisitioning Government for such
use of the Airframe and Engines or engines during the Term (other than any
such requisition which constitutes an Event of Loss, as to which the
provisions of Section 11.05 hereof shall govern) shall, subject to Section
11.08 hereof, be paid over to, or retained by the Lessee or such permitted
sublessee or transferee. All payments received by the Lessor, the Lessee or
any such permitted sublessee or transferee from the Requisitioning Government
for the use of the Airframe and Engines or engines after the Term shall be
paid over to, or retained by, the Lessor (or the Lessee if it shall have
purchased the Lessor's interest therein in accordance with the provisions
hereof).
Section 11.07. Requisition for Use by Government of an Engine Not
Installed on the Airframe. In the event of the requisition for use by a
Requisitioning Government of registry of the Aircraft or any agency or
instrumentality thereof of any Engine not then installed on the Airframe, the
Lessee shall replace such Engine by complying with the terms of Section 11.04
hereof to the same extent as if an Event of Loss had occurred with respect to
such Engine as of the date of such requisition, and any payments received by
the Lessor or the Lessee from the Requisitioning Government with respect to
such requisition shall, subject to Section 11.08 hereof, be paid over to or
retained by the Lessee, provided that the Lessee shall have fully performed
its obligations under Section 11.04 hereof.
Section 11.08. Application of Payments During Existence of Certain
Defaults. Any amount referred to in Section 11.05, 11.06 or 11.07 hereof
which is payable to or retainable by the Lessee shall not be paid to the
Lessee, or, if it has been previously paid directly to the Lessee, shall not
be retained by the Lessee, if at the time of such payment a Payment Default, a
Bankruptcy Default or an Event of Default shall have occurred and be
continuing, but shall be paid to and held by the Lessor (or the Indenture
Trustee so long as the Lien of the Indenture is in effect) as provided in
Article 23 hereof as security for the obligations of the Lessee under this
Agreement, and at such time as there shall not be continuing any such Payment
Default, Bankruptcy Default or Event of Default, such amount to the extent not
theretofore applied as provided herein, shall be paid to the Lessee.
ARTICLE 12
RETURN OF AIRCRAFT
Section 12.01. Return of Aircraft. Unless the Aircraft is purchased
by the Lessee as provided in Section 4.02 hereof, at the end of the Term, or
upon the termination of this Lease pursuant to Article 10 or Article 17 hereof
or otherwise (including termination as a result of a rejection hereof pursuant
to any provision of the Bankruptcy Code applicable to the Lessee), the Lessee,
at its own cost and expense, will return the Aircraft by delivering it to the
Lessor on the last day of the Term or upon such earlier termination of the
Term, as the case may be, at a location on the Lessee's route system, as in
effect on the date of return, in the forty-eight (48) contiguous states of the
United States, as designated by the Lessor and reasonably acceptable to the
Lessee or, if such location designated by the Lessor is not reasonably
acceptable to the Lessee, at Memphis, Tennessee, and the Airframe shall be
fully equipped with three Engines of the same or an improved make and model as
were delivered on the Delivery Date (or Replacement Engines), free and clear
of all Liens (other than Lessor's Liens (it being understood that, in
connection with such transfer, the Owner Participant shall be responsible for
removal of Lessor's Liens attributable to it, SSB shall be responsible for
removal of Lessor's Liens attributable to it and the Owner Trustee shall be
responsible for removal of Lessor's Liens attributable to the Owner Trustee,
all in accordance with Section 7.03(b) or 7.04(b) as the case may be, of the
Participation Agreement)), including any rights of third parties under
pooling, interchange, overhaul, repair or similar agreements or arrangements,
it being understood that all such Engines and Replacement Engines so returned
shall be of identical make and model and that any Replacement Engine shall be
in at least as good operating condition and have at least the same value,
remaining useful life and utility as the Engines being replaced, assuming such
Engines were in the condition required hereunder. The Lessor will give the
Lessee at least thirty (30) days' (or five (5) Business Days' in the case of a
return pursuant to Article 17 hereof) prior written notice of the place of
such return; provided, however, that if the Lessor shall have made the request
for storage pursuant to Section 12.06 hereof, the Lessee shall return the
Aircraft to the Lessor at the site of the storage.
Section 12.02. Return of Engines. If any engine not owned by the
Lessor shall be delivered with the Airframe as set forth in Section 12.01
hereof, the Lessee, concurrently with such delivery, will, at its own cost and
expense furnish the Lessor with (i) a full warranty xxxx of sale, in form and
substance reasonably satisfactory to the Lessor, with respect to such engine,
(ii) an opinion of the Lessee's counsel to the effect that, upon such return,
the Lessor will acquire full right, title and interest to such engine free and
clear of all Liens (other than Lessor's Liens (it being understood that, in
connection with such transfer, the Owner Participant shall be responsible for
removal of Lessor's Liens attributable to it, SSB shall be responsible for
removal of Lessor's Liens attributable to it and the Owner Trustee shall be
responsible for removal of Lessor's Liens attributable to the Owner Trustee,
all in accordance with Section 7.03(b) or 7.04(b) as the case may be, of the
Participation Agreement)) and (iii) a certificate as described in Section
11.04(b)(iii) hereof. The Lessee shall take such other action as the Lessor
may reasonably request in order that such Replacement Engine shall be duly and
properly titled in the Lessor free and clear of all Liens (other than Lessor's
Liens (it being understood that, in connection with such transfer, the Owner
Participant shall be responsible for removal of Lessor's Liens attributable to
it, SSB shall be responsible for removal of Lessor's Liens attributable to it
and the Owner Trustee shall be responsible for removal of Lessor's Liens
attributable to the Owner Trustee, all in accordance with Section 7.03(b) or
7.04(b) as the case may be, of the Participation Agreement)), and the Lessor
will then (i) transfer to the Lessee, without recourse or warranty (except as
to the absence of Lessor's Liens (other than Lessor's Liens (it being
understood that, in connection with such transfer, the Owner Participant shall
be responsible for removal of Lessor's Liens attributable to it and SSB shall
be responsible for removal of Lessor's Liens attributable to it and the Owner
Trustee shall be responsible for removal of Lessor's Liens attributable to the
Owner Trustee, all in accordance with Section 7.03(b) or 7.04(b) as the case
may be, of the Participation Agreement)), all the Lessor's right, title and
interest in and to any Engine in lieu of which a Replacement Engine has been
delivered pursuant to Section 12.01 hereof, "as is, where is" and (ii) deliver
to the Lessee such instrument as the Lessor shall have received from the
Indenture Trustee, releasing such Engine from the Lien of the Indenture.
Section 12.03. Return of Manuals. Upon the return of the Aircraft,
the Lessee shall deliver to the Lessor all original (or photocopied or
microfilmed copies thereof) logs, manuals, certificates and technical data,
and inspection, modification, maintenance and overhaul records pertaining to
the Airframe, Engines or engines, which are required to be maintained or are
actually maintained with respect thereto under applicable rules and
regulations of the Aeronautics Authority or pursuant to the Lessee's or any
permitted sublessee's Aeronautics Authority-approved maintenance program and
all original (or photocopied or microfilmed copies thereof) records maintained
with respect to the Aircraft under the maintenance program approved by the
aeronautical authority of any other country of registry of the Aircraft. All
records shall be returned in the format necessary to allow the Lessee or any
sublessee to comply with Section 12.04(a)(i) hereof.
Section 12.04. Condition of Aircraft. (a) Required Condition. The
Aircraft when returned to the Lessor shall, at the Lessee's own cost and
expense, meet the following requirements:
(i) it shall be duly registered in the name of the Lessor or its
designee pursuant to the Transportation Code, unless the Lessor or the
Owner Participant shall have given the Lessee at least 90 days' prior
written notice that the then-existing registration shall be retained;
(ii) it shall be clean by airline and cargo handling operating
standards;
(iii) the Airframe shall be returned with the Engines, or any
replacements thereto as herein authorized, provided that the Airframe shall
have an aggregate of three Engines or engines (as authorized under Section
12.02 hereof), all of the same make and model, installed thereon, together
with the equipment, accessories or parts installed thereon on the Delivery
Date or replacements therefor (as herein authorized) and alterations,
modifications and additions thereto made in accordance with the provisions
of this Lease;
(iv) it shall be in the condition required by Section 7.01(b) hereof,
and otherwise be in as good operating condition and in as good physical
condition as when delivered to the Lessor by the Lessee, ordinary wear and
tear excepted;
(v) it shall have a currently effective airworthiness certificate
issued by the Aeronautics Authority;
(vi) it shall comply with any then applicable rules and regulations
imposed by the Aeronautics Authority and, without limitation of the
foregoing, terminate all airworthiness directives of the Aeronautics
Authority applicable to the Aircraft and required to be terminated within 6
months after the end of the Term of the Lease and each Engine (including
any Replacement Engine) shall be serviceable in accordance with the
Lessee's FAA-approved maintenance program;
(vii) it shall be free and clear of all Liens and rights of others
(other than Lessor's Liens (it being understood that, in connection with
such transfer, the Owner Participant shall be responsible for removal of
Lessor's Liens attributable to it, SSB shall be responsible for removal of
Lessor's Liens attributable to it and the Owner Trustee shall be
responsible for removal of Lessor's Liens attributable to the Owner
Trustee, all in accordance with Section 7.03(b) or 7.04(b) as the case may
be, of the Participation Agreement)) including, without limitation, rights
of third parties under pooling, interchange, overhaul, repair and other
similar agreements or arrangements referred to in Section 7.02(a) hereof;
(viii) it shall be in a standard cargo configuration; and
(ix) it shall not be subject to a use prohibition of the character
described in clause (iv) of the definition of "Event of Loss".
(b) Remaining Time. If, at the time of return of the Aircraft, the
Airframe is not being maintained under a continuous maintenance program, then
the Airframe shall have remaining until the next scheduled "C" check at least
25% of the allowable hours between "C" checks permitted under the Lessee's
FAA-approved maintenance program. If, at the time of return of the Aircraft,
the Airframe is subject to a continuous maintenance program, there will be no
time-before-overhaul requirement. If, at the time of return of the Aircraft,
the Engines are not being maintained under an on-condition maintenance
program, then the average number of hours on such Engines remaining until the
next scheduled engine heavy maintenance visit shall be at least 25% of the
allowable hours between engine heavy maintenance visits permitted under the
Lessee's FAA-approved maintenance program. If, at the time of return of the
Aircraft, the Engines are subject to an on-condition maintenance program,
there will be no time-before-overhaul requirement. The Lessee shall have
maintained the Aircraft in a non-discriminatory manner with other XxXxxxxxx
Xxxxxxx MD-11F series aircraft in the Lessee's fleet (whether owned, operated
or leased), and the Aircraft shall be in compliance in every material respect
with the Lessee's maintenance program as if the Term were not ending.
Section 12.05. Delayed Return of Aircraft. (a) If the return of the
Aircraft to the Lessor in compliance with the terms of this Lease shall be
delayed beyond the scheduled end of the Term because of the occurrence of an
event described in clause (iii)(2)(B) of the definition of Event of Loss, this
Lease shall not terminate but shall continue in full force and effect until
the earlier to occur of the return of the Aircraft hereunder or the expiration
of the six-month period (or such shorter period referred to in said clause
(iii)(2)(B)) after the scheduled end of the Term, provided that (i) Stipulated
Loss Value and Termination Value during such extension shall be an amount
determined in accordance with Section 4.01(b) hereof, (ii) the Lessee shall
pay on demand, as Basic Rent for each day of such delay and for each day this
Lease shall continue, an amount equal to the daily equivalent of the average
Basic Rent paid during the Basic Term and any Renewal Term, or such higher
compensation being paid by the Government pursuant to the CRAF Program and
(iii) neither the Lessee nor any other Person shall use or operate the
Aircraft in any manner, except pursuant to the activation of such CRAF Program.
(b) If, in the case of a delay in return pursuant to paragraph (a)
above, at the expiration of the six-month period following the scheduled end
of the Term the Aircraft has not been returned to the Lessor, an Event of Loss
shall be deemed to have occurred on the date of expiration of such six-month
period (or such shorter period referred to in paragraph (a) above) and on such
date (or at such earlier date as an Event of Loss shall otherwise have
occurred) the Lessee shall pay to the Lessor all amounts then due hereunder
together with the Stipulated Loss Value for the Aircraft determined as of such
date; provided, however, that the Lessor shall have the right to waive payment
of such Stipulated Loss Value and accept the Aircraft on such date, "as is,
where is" (including the Aircraft's being subject to any use prohibition of the
character described in clause (iv) of the definition of Event of Loss).
(c) In any other situation in which the Aircraft is not returned to
the Lessor upon the expiration of the Term (other than due to a purchase of
the Aircraft by the Lessee pursuant to this Lease or by a purchaser under
Article 10 hereof) or is returned but there has not been compliance in all
material respects with the provisions of Article 12 hereof, the Lessee shall
pay on demand as Basic Rent for each day of such delay and this Lease shall
continue, an amount equal to the Rent per diem at a rate equal to the greater
of average Basic Rent or the Fair Market Rental; provided, however, that
nothing in this paragraph shall be deemed (i) to relieve the Lessee in any
respect from any Default or Event of Default arising from the failure to
return the Aircraft at the time or in the condition required by the Operative
Agreements or (ii) to permit the Lessee or any sublessee to operate or use the
Aircraft otherwise than in connection with effecting such return.
Section 12.06. Storage. Upon any expiration or termination of this
Lease, at the written request of the Lessor given at least fifteen (15) days
prior to such expiration or termination, the Lessee will arrange, or will
cause to be arranged, at no charge to the Lessor, storage at a ramp storage
facility for the Aircraft located in the forty-eight (48) contiguous states of
the United States and selected by the Lessee and reasonably acceptable to the
Lessor if not at one of the Lessee's principal maintenance bases for a period
of up to thirty (30) days commencing on the date the Aircraft is returned
substantially in the condition required under this Section 12 and if the Lessor
so requests the Lessee in writing ten (10) days before expiration of such
thirty (30) day period, the Lessee shall continue to provide or cause to be
provided storage at the Lessor's cost for a further period of sixty (60) days.
The maintenance and risk of loss of, and responsibility for obtaining
insurance on, the Aircraft shall be the responsibility of the Lessor during
any period of storage; provided, however, the Lessee will, upon written
request of the Lessor and at the Lessor's expense, not to exceed the Lessee's
incremental cost of such service, obtain insurance for such property
(including, if possible, coverage through its fleet policy).
Section 12.07. Special Markings. Upon any expiration or termination
of the Term, the Lessee shall, at the Lessee's cost, completely strip from the
interior and the exterior of the Aircraft all insignias and other distinctive
markings of the Lessee or any sublessee and repaint the stripped down areas in
matching exterior colors in accordance with industry standards.
Section 12.08. Lessor's Option to Purchase Parts. At any time after
the Lessee has advised the Lessor that it has determined not to renew this
Lease or purchase the Aircraft, or the Aircraft is otherwise to be returned to
the Lessor, the Lessee shall advise the Lessor of any Part which the Lessee
intends, and is permitted, to remove as provided in Section 9.02(b) above, and
the Lessor may, at its option, upon 30 days' notice to the Lessee, purchase
any or all of such Parts from the Lessee upon the expiration of the Term at
their then Fair Market Value determined in accordance with the provisions of
Section 4.03 hereof. Upon any return of the Aircraft pursuant to this Article
12, if the Lessor does not elect to exercise its option under this Section
12.08, the Lessee will, at its own cost and expense, remove such Parts
described in subparagraph (i), (ii), or (iii) of Section 9.02(b) hereof as the
Lessor may request and if not so removed, title to such Parts shall, without
further action, fully vest in the Lessor.
ARTICLE 13
INSURANCE
Section 13.01. Comprehensive Airline Liability and Property Damage
Liability Insurance. (a) Comprehensive Airline Liability and Property Damage
Liability Insurance. The Lessee, at its own cost and expense, will maintain
or cause to be maintained with respect to the Aircraft, (i) comprehensive
airline liability insurance including, without limitation, passenger legal
liability and property damage liability insurance and cargo legal liability in
such amounts, against such risks (including, without limitation, contractual
liability and allied perils liability but excluding war risk insurance (except
as required under the second sentence of this Section 13.01(a)), with such
retentions (subject to the limitations set forth in Section 13.06 hereof) and
on such terms and conditions (including coverage for cost of claims) as the
Lessee customarily maintains with respect to similar aircraft and engines
which comprise the fleet of the Lessee, and (ii) such insurance against such
other risks as is usually carried by similar corporations engaged in the same
or similar business and similarly situated as the Lessee and owning or
operating aircraft and engines similar to the Aircraft and Engines; provided
that in no event shall the limits of liability for all such insurance be less
than the amount, per occurrence, as set forth on the insurance certificate
delivered on the Delivery Date unless and only so long as the Aircraft is not
operated and all risk-ground insurance for the Aircraft on the ground is
maintained in the same manner and covering the same risks as is from time to
time applicable to other aircraft owned or operated by the Lessee on the
ground and not in operation. The Lessee will be required to maintain war risk
insurance if the Aircraft is operated in a war zone and if it is the custom
for major international Air Carriers flying comparable routes to carry such
insurance, but only to the extent that such insurance is available on
commercially reasonable terms. All insurance required by this Section
13.01(a) shall be maintained with insurers of recognized responsibility.
(b) Government Indemnification. Notwithstanding Section 13.01(a)
hereof, in the event of the requisition for use by the Government of the
Airframe or the Airframe and the Engines or engines then installed on the
Airframe, the Lessee shall maintain throughout the period of such requisition
such insurance as would otherwise be required under this Section 13.01;
provided that the Lessor shall accept, in lieu of such insurance coverage,
written indemnification or insurance from the Government which is
substantially the same as otherwise required under this Article 13.
(c) Policy Terms. Any policy of insurance carried and maintained in
accordance with this Section 13.01, and any policy taken out in substitution or
replacement for any such policy subject to the terms, conditions and
limitations thereof, shall:
(i) name or be amended to name the Lessor in its individual capacity
and as owner of the Aircraft, the Indenture Trustee in its individual
capacity and as trustee/mortgagee of the Aircraft, the Owner Participant,
each Liquidity Provider and each of their respective officers and directors
in their respective capacities as such as additional insureds (hereinafter
in this paragraph (c) sometimes referred to as "Additional Insured");
(ii) provide that, in respect of the interest of any Additional
Insured in such policies, the insurance shall not be invalidated by any
action or inaction of the Lessee, any sublessee, any transferee or any
Additional Insured as defined under the policy of insurance required under
this Section 13.01 (other than such Additional Insured) and shall insure
each Additional Insured regardless of any breach or violation of any
warranty, declaration or condition contained in such policies or
applications therefor by the Lessee, any sublessee, any transferee or any
other Additional Insured as defined under the policy of insurance required
under this Section 13.01 (other than such Additional Insured);
(iii) provide that if such insurance is cancelled for any reason, or
any substantial change is made in the policies which adversely affect the
scope of the coverage required herein, or if such insurance is allowed to
lapse for nonpayment of premium, such cancellation, change or lapse shall
not be effective as to any Additional Insured for thirty (30) days (except
in the case of war risk coverage in which event the applicable period shall
be seven (7) days or such other period as may be customary in the aviation
insurance industry) after receipt by each such Additional Insured of
written notice from such insurers of such cancellation, change or lapse;
(iv) provide that no Additional Insured shall have any obligation or
liability for premiums or other payments, if any, in connection with such
insurance;
(v) provide that the insurers shall waive any rights to be subrogated
to the rights of any Additional Insured, to the extent that the Lessee has
waived its rights under this Lease or any other Operative Agreement;
provided that the exercise by insurers of rights of subrogation derived
from rights retained by the Lessee shall not, in any way, delay payment of
any claim that would otherwise be payable by such insurers but for the
existence of rights of subrogation derived from rights retained by the
Lessee;
(vi) provide that such insurer shall waive the right of such insurer
to any set-off or counterclaim or any other deduction, whether by
attachment or otherwise, in respect of any liability of any Additional
Insured;
(vii) provide that all of the provisions of such policy shall operate
in the same manner as if there were a separate policy covering each
Additional Insured; provided, that such policies shall not operate to
increase any insurer's limit of liability; and
(viii) be primary, without right of contribution from any other
insurance which is carried by any Additional Insured with respect to its
interest in the Aircraft.
Section 13.02. Insurance Against Loss or Damage to Aircraft and
Engines. (a) Hull Insurance. The Lessee, at its own cost and expense, shall
maintain or cause to be maintained in effect, with insurers of recognized
responsibility, all-risk ground and flight aircraft hull insurance covering
the Aircraft and all-risk coverage with respect to any Engines and Parts while
removed from the Aircraft and not replaced by similar Engines or Parts,
including in each case war-risk and allied perils, hijacking (air piracy) and
governmental confiscation and expropriation insurance (except with respect to
the country of registry) with such retentions (subject to the limitations set
forth in Section 13.06 hereof) and in such form, and upon such terms and
conditions (including coverage for cost of claims), and in amounts as the
Lessee customarily maintains with respect to the aircraft in the Lessee's
fleet of the same type and model and operated on the same routes as the
Aircraft (except that the Lessee shall be required to maintain (i) allied
perils, hijacking (air piracy) and governmental confiscation and expropriation
insurance (except with respect to the country of registry) if the Aircraft is
operated on routes where the custom is for major international Air Carriers
flying comparable routes to carry such insurance and (ii) war risk insurance
only if the Aircraft is operated in a war zone and if it is the custom for
major international Air Carriers flying comparable routes to carry such
insurance, and then only to the extent that such insurance is available on
commercially reasonable terms), provided that such insurance shall at all
times while the Aircraft is subject to this Lease and the Lien of the
Indenture be on an agreed-value basis for an amount not less than an amount
equal to the Stipulated Loss Value for the Aircraft from time to time.
(b) Policy Terms. Any policies carried and maintained in accordance
with this Section 13.02 and any policies taken out in substitution or
replacement for any such policies subject to the terms, conditions and
limitations thereof shall:
(i) name or be amended to name the Lessor in its individual capacity
and as owner of the Aircraft, the Indenture Trustee in its individual
capacity and as trustee/mortgagee of the Aircraft, the Owner Participant
and each Liquidity Provider as additional insureds (hereinafter in this
paragraph (b) sometimes referred to as "Additional Insureds"), and the
Lessor (or, so long as the Indenture shall not have been discharged, the
Indenture Trustee) as sole loss payee (hereinafter in this paragraph (b)
sometimes referred to as "Loss Payee");
(ii) provide with respect to coverage provided under this Section
13.02, that (i) in the event of a loss involving proceeds in excess of
$6,000,000, the proceeds in respect of such loss up to an amount equal to
the Stipulated Loss Value for the Aircraft shall be payable to the Lessor
(or, so long as the Indenture shall not have been discharged, the Indenture
Trustee), it being understood and agreed that in the case of any payment to
the Lessor (or the Indenture Trustee) otherwise than in respect of an Event
of Loss, the Lessor (or the Indenture Trustee) shall in the aggregate upon
receipt of evidence satisfactory to it that the damage giving rise to such
payment shall have been repaired or that such payment shall then be
required to pay for repairs then being made, pay the amount of such payment
to the Lessee or its order, and (ii) the entire amount of any loss involving
proceeds in the aggregate of $6,000,000 or less or the amount of any
proceeds of any loss in excess of the Stipulated Loss Value for the
Aircraft shall be paid to the Lessee or its order;
(iii) provide that if such insurance is cancelled for any reason or
any substantial change is made in the policies which adversely affects the
scope of the coverage required herein, or if such insurance is allowed to
lapse for nonpayment of premium, such cancellation, change or lapse shall
not be effective as to any Additional Insured or the Loss Payee for thirty
days (except in the case of war-risk coverage in which event the applicable
period shall be seven (7) days or such other period as may be customary in
the aviation insurance industry) after receipt by each such Additional
Insured or Loss Payee of written notice from such insurer of such
cancellation, change or lapse;
(iv) provide that, in respect of the interest of the Lessor (in its
individual capacity and as the Owner Trustee), the Owner Participant or the
Indenture Trustee (in their respective capacities as such) in such policies
the insurance shall not be invalidated by any action or inaction of the
Lessee, any sublessee, any transferee, any Additional Insured or the Loss
Payee (other than any action or inaction of such Additional Insured or such
Loss Payee) and shall insure the Lessor (in its individual capacity and as
Owner Trustee), the Owner Participant and the Indenture Trustee regardless
of any breach or violation of any warranty, declaration or condition in
such policies or applications therefor by the Lessee, any sublessee, any
transferee or any other Additional Insured as defined under the policy of
insurance required under this Section 13.02 (other than such Additional
Insured);
(v) provide that the insurers shall waive any rights to be subrogated
to the rights of the Lessor (in its individual capacity and as Owner
Trustee), the Owner Participant and the Indenture Trustee to the extent
that the Lessee has waived its rights under this Lease or any other
Operative Agreement; provided that the exercise by insurers of rights of
subrogation derived from rights retained by the Lessee shall not, in any
way, delay payment of any claim that would otherwise be payable by such
insurers but for the existence of rights of subrogation derived from rights
retained by the Lessee;
(vi) provide that (except in the case of insurance with respect to
Engines and spare parts that have been removed from the Aircraft and
replaced with other Engines or engines or spare parts, as the case may be)
such insurer shall waive any right of such insurer to any set-off or
counterclaim or any other deduction, whether by attachment or otherwise, in
respect of any liability of any Additional Insured or Loss Payee;
(vii) be primary and without rights of contribution from any other
insurance which is carried by any Additional Insured or Loss Payee with
respect to its interest in the Aircraft;
(viii) provide that no Additional Insured or Loss Payee shall have any
obligation or liability for premiums or other payments, if any, in
connection with such insurance; provided that, the parties hereto
understand that in the case of insurance with respect to Engines and spare
parts that have been removed from the aircraft and replaced with other
engines or spare parts, as the case may be, such insurance may be
maintained by other than the Lessee's primary insurer; and
(ix) in the event that separate policies are maintained to cover
all-risk ground and flight aircraft, hull and war risks and allied perils
insurance, include a 50/50 provisional claims settlement clause as
contained in the policies of insurance maintained by the Lessee with
respect to all other aircraft in the Lessee's fleet, and a copy of the
50/50 provisional claims settlement clause in effect on the Delivery Date
shall be attached to the insurance certificate issued on the Delivery Date.
Section 13.03. Application of Insurance Proceeds. (a) Generally.
All insurance proceeds (other than proceeds from policies carried by the
Lessor, the Indenture Trustee or the Owner Participant) received under
policies described in Section 13.02 hereof as the result of the occurrence of
an Event of Loss with respect to the Airframe or an Engine will be applied as
follows:
(i) if such proceeds are received with respect to the Airframe or with
respect to the Airframe and the Engines or engines then installed on the
Airframe and the Lessee has elected or is deemed to have elected the
alternative set forth in Section 11.02 hereof, so much of such proceeds as
shall not exceed the amounts required to be paid by the Lessee pursuant to
said Section 11.02 hereof shall be applied in reduction of the Lessee's
obligation to pay such amounts if not already paid by the Lessee, or if
already paid by the Lessee, shall be applied to reimburse the Lessee for
its payment of such amounts; or
(ii) if such proceeds are received with respect to the Airframe or the
Airframe and the Engines or engines then installed on the Airframe and the
Lessee has elected the alternative set forth in Section 11.03 hereof, or if
such proceeds are received with respect to an Engine not then installed on
the Airframe and not replaced by an Engine or engine under the
circumstances contemplated by Section 11.04 hereof, all such proceeds shall
be paid to the Indenture Trustee (unless the Indenture has been discharged
in which case paid to the Lessor) for disbursement to the order of the
Lessee, after the Lessee shall have fully performed the terms of Section
11.03 or 11.04 hereof, as applicable, with respect to the Event of Loss for
which such proceeds are paid.
(b) Payment if no Event of Loss. The insurance proceeds of any
property damage loss not constituting an Event of Loss with respect to the
Airframe or an Engine will be applied in payment (or to reimburse the Lessee)
for repairs or for replacement property in accordance with Articles 7 and 8
hereof, if not already paid for by the Lessee, and any balance remaining after
compliance with said Articles 7 and 8 hereof with respect to such loss shall
be paid to the order of the Lessee.
(c) Application of Payments During Existence of an Event of Default.
Any amount referred to in this Article 13 which is payable to or retainable by
the Lessee shall not be paid to or retained by the Lessee if at the time of
such payment or retention a Payment Default, Bankruptcy Default or an Event of
Default shall have occurred and be continuing, but shall be held by or paid
over to the Indenture Trustee (unless the Indenture has been discharged in
which case such amount shall be paid to the Lessor) to be held in accordance
with Article 23 hereof, as security for the obligations of the Lessee under
this Lease and, if an Event of Default shall have occurred and be continuing,
applied against the Lessee's obligations hereunder as and when due. At such
time as there shall not be continuing any such Payment Default, Bankruptcy
Default or Event of Default, such amount shall be paid to the Lessee to the
extent not previously applied in accordance with the preceding sentence.
(d) Information. If any Additional Insured becomes subject to any
claim covered by any insurance policy maintained pursuant to this Article 13,
the Lessee shall make available any information required by such Additional
Insured in connection with such claim.
Section 13.04. Reports. On or before the Delivery Date and
thereafter annually on or before the scheduled expiration date for such policy
during the Term, the Lessee will cause its aviation insurance broker to
furnish to the Lessor, the Owner Participant and the Indenture Trustee a
signed report, stating the types of coverage and limits carried and maintained
on the Aircraft and certifying that such insurance complies with the terms and
conditions of this Lease. The Lessee will cause such aviation insurance
broker to advise the Lessor, the Owner Participant and the Indenture Trustee
in writing promptly of any default in the payment of any premium and of any
other act or omission on the part of the Lessee of which it has knowledge and
which might invalidate, cause cancellation of or render unenforceable all or
any part of any insurance carried by the Lessee with respect to the Aircraft.
The Lessee will cause such insurance broker to agree to advise the Lessor, the
Indenture Trustee and the Owner Participant in writing if and when it becomes
evident to such broker that any insurance policy carried and maintained on the
Aircraft pursuant to this Article 13 will not be renewed at the scheduled
expiration date for such policy. If the Lessee shall fail to maintain
insurance as required, the Lessor may, at its option, provide such insurance,
and in such event, the Lessee shall, upon demand, reimburse the Lessor, as
Supplemental Rent, for the cost of such insurance; provided, however, that no
exercise of said option shall affect the provisions of this Lease, including
the provisions that failure by the Lessee to maintain the prescribed insurance
shall constitute an Event of Default or otherwise constitute a waiver of any
other rights the Lessor may have against the Lessee.
Section 13.05. Lessor's Insurance. The Lessor, the Indenture
Trustee or the Owner Participant may insure the Airframe or any Engine at its
own cost and expense, including insuring the Aircraft for amounts in excess of
the Stipulated Loss Value of the Aircraft, provided that any insurance so
maintained by the Lessor, the Indenture Trustee or the Owner Participant shall
not result in a reduction of coverage or amounts payable under insurance
required or permitted to be maintained by the Lessee under this Article 13 or
increase the cost to the Lessee of maintaining such insurance; provided
further, that any insurance policies of the Lessor, the Indenture Trustee or
the Owner Participant insuring the Airframe or any Engine shall provide for a
release to the Lessee of any and all salvage rights in and to the Airframe or
any Engine.
Section 13.06. Self-Insurance. The Lessee may self-insure the risks
required to be insured against by Sections 13.01 and 13.02 hereof in such
manner and in such reasonable amounts as are then applicable to other aircraft
or engines of the Lessee of value comparable to the Aircraft, but in no case
shall such self-insurance with respect to all aircraft in the Lessee's fleet
in aggregate exceed for any 12-month policy year an amount equal to the lesser
of (i) 50% of the highest insured value of any single aircraft in the Lessee's
fleet and (ii) 1.5% of the aggregate insured value from time to time of the
Lessee's entire aircraft fleet. The foregoing shall not permit the Lessee to
discriminate as between insurance coverage on the Aircraft and insurance which
the Lessee maintains with respect to similar aircraft owned or operated by the
Lessee operating on similar routes in similar locations.
ARTICLE 14
INSPECTION
Section 14.01. Right of Inspection. At reasonable times, and upon
at least ten (10) Business Days' prior written notice (provided that at any
time during the existence of a Payment Default, Bankruptcy Default or Event of
Default, no more than three (3) days' notice shall be required) to the Lessee,
the Lessor, the Indenture Trustee or the Owner Participant, or their
respective authorized representatives, may inspect the Aircraft and upon at
least ten (10) Business Days' prior written notice (provided that at any time
during the existence of a Payment Default, Bankruptcy Default or Event of
Default, no more than three (3) days' notice shall be required) may inspect
and copy all Aeronautics Authority-required books and records of the Lessee
and any sublessee relating to the maintenance of the Aircraft and such Persons
shall keep any information obtained thereby confidential and shall not
disclose the same to any Person except to a Person described in Section 18.01
of the Participation Agreement and any technical consultant in connection with
remarketing activities of the Lessor. Any such inspection of the Aircraft may
be undertaken during any letter check or heavy maintenance visit with respect
to the Aircraft and shall be a visual, walk-around inspection of the interior
and exterior of the Aircraft and shall not include opening any panel, bays or
the like without the express consent of the Lessee (except to the extent any
such inspection takes place when any such panel, bays or the like are open).
Notwithstanding the previous sentence, the Lessor, the Indenture Trustee, the
Owner Participant or their respective authorized representatives shall, so
long as no Payment Default, Bankruptcy Default or Event of Default shall have
occurred and be continuing, each be entitled to inspect the Aircraft only one
time during any consecutive twelve month period (except in the last year of
the Term when such inspection may be made twice by such Person), and in any
such other case as often as required to ensure such Payment Default,
Bankruptcy Default or Event of Default has been remedied. The Lessee shall
make any permitted sublease or transfer permitted under Section 7.02 hereof
expressly subject to inspection rights consistent with this Article 14. The
Lessee agrees to respond in a timely fashion to any of the Owner Trustee's,
Indenture Trustee's or the Owner Participant's inquiries regarding (x) the
location of the Aircraft or any Engine or (y) the scheduling of any letter
check or heavy maintenance visit with respect to the Aircraft and agrees to
fully cooperate to permit the Lessor to exercise its inspection rights in
accordance with this Section 14.01.
Section 14.02. No Obligation to Inspect. None of the Lessor, the
Indenture Trustee or the Owner Participant shall have any duty to make any
inspection pursuant to Section 14.01 hereof and no such party shall incur any
liability or obligation by reason of making or not making any such inspection.
ARTICLE 15
ASSIGNMENT
Section 15.01. Lessee's Right to Assign. The Lessee shall not, and
shall have no authority or power to assign, convey or sublease any of its
rights under this Lease without the prior written consent of the Lessor except
(i) as expressly provided in Section 7.02 hereof, or (ii) to a wholly-owned
subsidiary of the Lessee which shall be a certificated U.S. Air Carrier. Any
such assignment, conveyance or sublease shall in no way relieve the Lessee
from any obligation under any Operative Agreement, which shall be and remain
primary obligations of the Lessee. The Lessor agrees that it will not assign
or convey its right, title and interest in and to this Lease or the Aircraft
except as contemplated by or provided in this Lease, the Trust Agreement, the
Indenture or the Participation Agreement. The terms and provisions of this
Lease shall be binding upon and inure to the benefit of the Lessor and the
Lessee and their respective successors and permitted assigns, and shall inure,
to the extent expressly provided herein and therein, to the direct benefit of,
and in accordance with the provisions of the Indenture and the Participation
Agreement shall be enforceable by, the Indenture Trustee, the Lessor and their
respective successors and permitted assigns.
Section 15.02. Citizenship. The Lessee will at all times be a duly
certificated U.S. Air Carrier under the Transportation Code.
ARTICLE 16
EVENTS OF DEFAULT
Section 16.01. Events of Default. After the Delivery Date, each of
the following events shall constitute an Event of Default, whether any such
event shall be voluntary or involuntary or come about or be effected by
operation of law or pursuant to or in compliance with any judgment, decree or
order of any court or any order, rule or regulation of any administrative or
governmental body:
(a) the Lessee shall fail to make any payment of Basic Rent, Renewal
Rent, Stipulated Loss Value or Termination Value, or any payment pursuant
to Section 17.02 of the Participation Agreement, as the case may be, within
five (5) Business Days after the date when due (except that with respect to
any failure to pay Excepted Payments, such failure shall constitute an
Event of Default at the discretion of the Owner Participant); or
(b) the Lessee shall fail to make any payment of Supplemental Rent
(other than amounts described in clause (a) above) within thirty (30) days
after the Lessee has received written notice from the Person entitled to
receive such payment stating that such payment is due; or
(c) the Lessee shall fail to procure, carry and maintain insurance on
or in respect of the Aircraft at any time in accordance with the provisions
of Article 13 or such insurance lapses or is cancelled, provided that if
the Aircraft is grounded, as long as the Aircraft is insured as required
while on the ground and not operated, no such lapse or cancellation shall
constitute an Event of Default until the earlier of thirty (30) days (or
seven (7) days or such shorter time as may be standard in the industry with
respect to war risk coverage) after receipt by any Additional Insured of
written notice of such lapse or cancellation or the date that such lapse or
cancellation is effective as to any Additional Insured; or
(d) the Lessee shall fail to perform or observe any other covenant,
condition or agreement to be performed or observed by it under any Operative
Agreement (excluding the Tax Indemnity Agreement) or any other written
agreement of the Lessee entered into in connection with the transactions
contemplated by the Operative Agreements and such failure shall continue
unremedied for a period of thirty (30) days from the date on which the
Lessee shall have actual knowledge thereof (whether by reason of notice
from the Lessor or the Owner Participant of such failure or otherwise),
provided, that in the event such failure is curable and so long as (but for
no longer than 90 days after such 30-day period) the Lessee shall be
diligently attempting to cure such failure, such failure shall not
constitute an Event of Default; provided, further, that failure of the
Lessee to maintain the registration of the Aircraft under the
Transportation Code pursuant to the Lessee's covenants and agreement in
Section 6.03(b) of the Participation Agreement and in Section 7.01(a) of
this Lease, when the lapse of such registration is solely because the Owner
Participant or the Lessor has ceased to be a Citizen of the United States,
shall not constitute a Default or an Event of Default; or
(e) an order for relief shall be entered in respect of the Lessee by
a court having jurisdiction in the premises in an involuntary case under
the federal bankruptcy laws as now or hereafter in effect; or the Lessee
shall consent to the appointment of a custodian, receiver, trustee or
liquidator of itself or of a substantial part of its property; or the
Lessee is not paying, or shall admit in writing its inability to pay, its
debts generally as they come due or shall make a general assignment for the
benefit of creditors; or the Lessee shall file, or the Board of Directors
of the Lessee shall authorize the filing of, or grant one or more persons
authority (at their discretion) to make a filing for, a voluntary petition
in bankruptcy or a voluntary petition or an answer seeking reorganization
in a proceeding under any bankruptcy laws (as now or hereafter in effect)
or an answer admitting the material allegations of a petition filed against
the Lessee in any such proceeding; or the Lessee shall file, or the Board
of Directors of the Lessee shall authorize the Lessee to, or grant one or
more persons authority (at their discretion) to, seek relief by voluntary
petition, answer or consent, under the provisions of any other or future
bankruptcy or other similar law providing for the reorganization or
winding-up of corporations, or providing for an agreement, composition,
extension or adjustment with its creditors; or
(f) an order, judgment or decree shall be entered by any court of
competent jurisdiction appointing, without the consent of the Lessee, a
custodian, receiver, trustee, or liquidator of the Lessee or of any
substantial part of its property, or sequestering any substantial part of
the property of the Lessee, or granting any other relief in respect of the
Lessee under the federal bankruptcy laws or other insolvency laws, and any
such order, judgment or decree of appointment or sequestration shall remain
in force undismissed or unvacated for a period of sixty (60) days after the
date of its entry; or
(g) a petition against the Lessee in a proceeding under the federal
bankruptcy law or other insolvency laws (as now or hereafter in effect)
shall be filed and shall not be withdrawn or dismissed within sixty (60)
days, or under the provisions of any law providing for reorganization or
winding-up of corporations which may apply to the Lessee, any court of
competent jurisdiction shall assume jurisdiction, custody or control of the
Lessee or of any substantial part of its property and such jurisdiction,
custody or control shall remain in force unrelinquished or unterminated for
a period of sixty (60) days; or
(h) any representation or warranty made by the Lessee in this Lease
or in the Participation Agreement or in any document or certificate
furnished by the Lessee in connection with or pursuant to this Lease or the
Participation Agreement (except for the Tax Indemnity Agreement) shall at
any time prove to have been incorrect at the time made in any respect
material to the transactions contemplated by this Lease and the other
Operative Agreements and shall remain material and unremedied for a period
of thirty (30) days after the Lessee shall have actual knowledge thereof
(whether by reason of receipt of written notice thereof or otherwise).
ARTICLE 17
REMEDIES
Section 17.01. Remedies Upon Lessee's Default. (a) Remedies
Generally. Upon the occurrence of any Event of Default and at any time after
such occurrence so long as the same shall be continuing, the Lessor may, at
its option, declare this Lease to be in default (except that no such
declaration shall be required in the case of an Event of Default pursuant to
paragraph (e), (f) or (g) of Section 16.01 hereof and this Lease shall be
deemed declared in default without any further act or notice), and at any time
thereafter the Lessor may do, and the Lessee shall comply with, one or more
of the following with respect to all or any part of the Airframe and the
Engines, as the Lessor in its sole discretion shall elect, to the extent
permitted by, and subject to compliance with, any mandatory requirements of
applicable law then in effect:
(i) Demand in writing that the Lessee shall, and upon such written
demand the Lessee shall, at the Lessee's own cost and expense, return
promptly to the Lessor all or such part of the Airframe and the Engines as
the Lessor may demand in the manner and condition required by, and
otherwise in accordance with all of the provisions of, Article 12 hereof,
or the Lessor, at its option, may enter upon the premises where such
Airframe or Engines are located or believed to be located and take
immediate possession of and remove such Airframe and Engines (together with
any engine which is not an Engine but is installed on the Airframe, subject
to all of the rights of the owner, lessor, Lien holder or secured party of
such engine) without the necessity for first instituting proceedings, or by
summary proceedings or otherwise, all without liability of the Lessor to
the Lessee for or by reason of such entry or taking of possession, whether
for the restoration of damage to property caused by such action or
otherwise;
(ii) With or without taking possession thereof, sell or otherwise
dispose of the Airframe or any Engine, at public or private sale and with
or without advertisement or notice to the Lessee, as the Lessor may
determine, and the Lessor may hold the Lessee liable for any installment of
Basic Rent and Renewal Rent due on or before the date of such sale (and, if
Basic Rent or Renewal Rent is payable in arrears, the pro rata portion of
the installment of Basic Rent or Renewal Rent due on the next succeeding
Rent Payment Date in respect of any period commencing on the immediately
preceding Rent Payment Date to the date of such sale), or hold, use,
operate, lease to others or keep idle all or any part of the Airframe or any
Engine as the Lessor, in its sole discretion, may determine, in any such
case free and clear of any rights of the Lessee except as otherwise set
forth in this Article 17, and without any duty to account to the Lessee
with respect to such action or inaction or for any proceeds except to the
extent required by Section 17.01(a)(iv) hereof; in the event the Lessor
elects to exercise its rights under said Section, and in connection with
any sale of the Aircraft or any part thereof pursuant to this Article 17,
the Lessor, the Indenture Trustee, the Owner Participant or any Holder may
bid for and purchase such property;
(iii) Whether or not the Lessor shall have exercised or shall later
at any time exercise any of its rights under Section 17.01(a)(i) or
17.01(a)(ii) hereof, the Lessor, by written notice to the Lessee specifying
a payment date not earlier than 5 days from the date of such notice, may
demand that the Lessee pay to the Lessor, and the Lessee shall pay to the
Lessor on the payment date specified in such notice, as liquidated damages
for loss of a bargain and not as a penalty (in lieu of the Basic Rent or
Renewal Rent due on Rent Payment Dates occurring after the payment date
specified in such notice), any installment of Basic Rent, Renewal Rent and
any Supplemental Rent due on or before such payment date, and any other
Supplemental Rent accrued through such date (and, if Basic Rent or Renewal
Rent is payable in arrears, the pro rata portion of the installment of
Basic Rent or Renewal Rent due on the next succeeding Rent Payment Date in
respect of the period commencing on the Stipulated Loss Value Determination
Date referred to below and ending on the date of such payment), plus an
amount equal to the excess, if any, of the Stipulated Loss Value for the
Aircraft, computed as of the Stipulated Loss Value Determination Date on or
next preceding the payment date specified in such notice over, at the
Lessor's option, the Fair Market Value or the Fair Market Rental (in each
case, on an "as-is, where-is" basis) of the Aircraft for the remainder of
the Term applicable thereto, after discounting such Fair Market Rental
semi-annually to the present value as of such Rent Payment Date at the Debt
Rate computed as of the Stipulated Loss Value Determination Date on or next
preceding the payment date specified in such notice, together in each case,
with interest, to the extent permitted by applicable law, at the Past Due
Rate on the excess of such Stipulated Loss Value over such Fair Market
Value or Fair Market Rental, from the date as of which such Stipulated Loss
Value is payable to the date of actual payment of such amount, and after
payment in full by the Lessee of the amount specified above and all other
amounts due from the Lessee under this Lease and the other Operative
Agreements, the Lessor shall promptly transfer (without recourse or
warranty other than as to the absence of the Lessor's Liens (it being
understood that, in connection with such transfer, the Owner Participant
shall be responsible for removal of Lessor's Liens attributable to it, SSB
shall be responsible for removal of Lessor's Liens attributable to it and
the Owner Trustee shall be responsible for removal of Lessor's Liens
attributable to the Owner Trustee, all in accordance with Section 7.03(b)
or 7.04(b) as the case may be, of the Participation Agreement)) all of its
right, title and interest in the Aircraft or such portion, to the Lessee;
(iv) In the event the Lessor, pursuant to Section 17.01(a)(ii)
hereof, shall have sold the Airframe and/or any Engine, the Lessor, in lieu
of exercising its rights under Section 17.01(a)(iii) hereof, may, if it
shall so elect, demand that the Lessee pay the Lessor, and the Lessee shall
pay to the Lessor, on the date of such sale, as liquidated damages for loss
of a bargain and not as a penalty (in lieu of the Basic Rent or Renewal
Rent due after the date on which such sale occurs) any unpaid Basic Rent or
Renewal Rent due on or before the date on which such sale occurs (and, if
Basic Rent or Renewal Rent is payable in arrears, the pro rata portion of
the installment of Basic Rent or Renewal Rent due on the next succeeding
Rent Payment Date in respect of any period commencing on the Stipulated
Loss Value Determination Date referred to below and ending on the date of
such sale), and any Supplemental Rent due on or before the date (and any
other Supplemental Rent accrued through such date) on which such sale
occurs, plus an amount equal to the excess, if any, of (A) the Stipulated
Loss Value for the Aircraft, computed as of the Stipulated Loss Value
Determination Date next preceding the sale date, over (B) the net proceeds
of such sale (after deduction of all of the Lessor's costs and expenses of
such sale, including, without limitation, sales or transfer taxes, costs of
storage, overhaul, maintenance, preparation and transportation of the
Aircraft and brokers' and attorneys' fees), together with interest, to the
extent permitted by applicable law, at the Past Due Rate, on the amount of
such excess from the date of such sale to the date of actual payment by the
Lessee;
(v) Proceed by appropriate court action to enforce the terms of this
Lease or to recover damages for its breach;
(vi) Terminate or rescind this Lease as to the Airframe or any or all
of the Engines; or
(vii) Exercise any other right or remedy which may be available to the
Lessor under applicable law.
(b) Cost of Exercise of Remedies. In addition, the Lessee shall be
liable, except as otherwise provided above, for any and all unpaid Rent due
before, after or during the exercise of any of the Lessor's remedies, for all
amounts payable by the Lessee under the Participation Agreement before or
after any termination hereof, and for all reasonable legal fees and other
costs and expenses incurred by the Lessor, the Indenture Trustee or the Owner
Participant by reason of the occurrence of any Event of Default or the
exercise of the Lessor's remedies, including, without limitation, all costs
and expenses incurred in connection with the return of the Airframe or any
Engine in accordance with the terms of Article 12 hereof or in placing the
Airframe or Engines in the condition and state of airworthiness required by
such Article or in connection with any inspection, use, operation,
maintenance, insurance, storage, or leasing carried out as part of such
exercise.
Section 17.02. Cumulative Remedies. Except as otherwise provided, no
remedy referred to in this Article 17 is intended to be exclusive, but each
shall be cumulative and in addition to any other remedy referred to above or
otherwise available to the Lessor at law or in equity; and the exercise or
beginning of exercise by the Lessor of any one or more of such remedies shall
not preclude the simultaneous or later exercise by the Lessor of any or all of
such other remedies.
Section 17.03. Waiver. No express or implied waiver by the Lessor
of any Event of Default shall in any way be, or be construed to be, a waiver
of any future or subsequent Event of Default. To the extent permitted by
applicable law, the Lessee waives any rights now or in the future conferred by
statute or otherwise which may require the Lessor to sell, lease or otherwise
use the Airframe or any Engine in mitigation of the Lessor's damages or which
may otherwise limit or modify any of the Lessor's rights or remedies under
this Article 17. The Lessor's access to the Aircraft is of the essence and
shall not be impaired.
Section 17.04. Lessor's Right to Perform for Lessee. If the Lessee
fails to make any required payment of Supplemental Rent or fails to perform or
comply with any of its agreements contained in this Lease whether or not such
failure shall constitute an Event of Default hereunder, the Lessor may (but
shall not be obligated to) make such payments or perform or comply with such
agreement, and the amount of such payment and the amount of the reasonable
costs and expenses of the Lessor incurred in connection with such payment or
the performance of or compliance with such agreement, together with interest
(to the extent permitted by applicable law) at the Past Due Rate from the date
of the making of such payment or the incurring of such costs and expenses by
the Lessor to the date of payment of such Supplemental Rent or other amount by
the Lessee, shall be deemed Supplemental Rent payable by the Lessee upon
demand. No such payment or performance by the Lessor shall be deemed to waive
any Default or Event of Default or relieve the Lessee of its obligations
hereunder.
ARTICLE 18
COVENANT OF QUIET ENJOYMENT
Section 18.01. Quiet Enjoyment. So long as no Event of Default
shall have occurred and be continuing, the Lessor covenants that neither it
nor any other Person lawfully claiming through it (other than the holder of a
Lien which the Lessee is obligated to discharge pursuant to Article 6 hereof)
shall interfere with the Lessee's or, to the extent of any sublease permitted
under Section 7.02 of the Lease, any permitted sublessee's right quietly to
enjoy the Aircraft and to possess, use and operate the Aircraft in accordance
with this Lease and the other Operative Agreements, in each case without
hindrance or disturbance by it or any such other Person.
ARTICLE 19
FURTHER ASSURANCES
Section 19.01. Further Assurances. Promptly upon the execution and
delivery of the Lease Supplement and the Indenture and Security Agreement
Supplement, the Lessee will cause each of them and this Lease, the Trust
Agreement and the Indenture, to be duly filed for recordation in accordance
with the Transportation Code and will maintain the recordation of the
Indenture until the Lien of the Indenture shall have been discharged pursuant
to the terms of the Indenture. In addition, the Lessee will, at the Lessee's
own cost and expense, at the request of the Lessor, the Owner Participant or
the Indenture Trustee, as the case may be, promptly and duly execute and
deliver to the Lessor, the Owner Participant and the Indenture Trustee such
further documents and assurances to carry out the intent and purpose of this
Lease and the Indenture and to establish and protect the rights and remedies
created or intended to be created in favor of the Lessor under this Lease, and
of the Owner Participant under the Trust Agreement, and of the Indenture
Trustee under the Indenture, including, without limitation, the execution and
filing of Uniform Commercial Code financing and continuation statements, the
execution and delivery of supplements and amendments to this Lease and the
Indenture, in recordable form, subjecting to this Lease and the Indenture any
Replacement Airframe and/or Replacement Engines delivered by the Lessee
pursuant to Section 11.03 hereof and any Replacement Engine delivered by the
Lessee pursuant to Section 11.04 hereof and the recording and filing of
counterparts of this Lease and the Indenture in accordance with the laws of
such jurisdictions as the Lessor or the Indenture Trustee may from time to
time deem advisable. The foregoing does not, except as expressly provided
therein, impose upon the Lessor any additional liabilities not otherwise
contemplated by this Lease.
ARTICLE 20
NET LEASE
Section 20.01. Nature of Lease. (a) This Lease is a net lease, it
being the intention of the parties hereto that the obligations of the Lessee
to pay all costs and expenses of every character in connection with the use,
operation, maintenance and repair of the Airframe and each Engine by the
Lessee, including, without limitation, the costs and expenses particularly set
forth in this Lease, shall be absolute and unconditional, shall be separate
and independent covenants and agreements, and shall continue unaffected unless
and until the covenants have been terminated pursuant to an express provision
of this Lease. The Lessee's obligation to pay Rent and all amounts payable by
the Lessee under this Lease or the Participation Agreement shall be absolute
and unconditional and (except as otherwise expressly provided with respect to
notice of Supplemental Rent) shall be paid without notice or demand, and such
obligation shall not be affected by any circumstance whatsoever, including,
without limitation:
(i) any set-off, counterclaim, recoupment, defense or other right
which the Lessee may have against the Lessor, the Owner Participant, any
Holder, the Indenture Trustee or anyone else for any reason (including,
without limitation, any breach by the Lessor or the Owner Participant or
the Indenture Trustee or any Holder of their respective representations,
warranties, agreements or covenants contained in any of the Operative
Agreements);
(ii) any defect in the title, airworthiness, registration,
eligibility for registration under the Transportation Code (and the
regulations thereunder) or under any of the laws or regulations of any
other country of registry of the Aircraft, condition, design, operation,
merchantability or fitness for use of, suitability for a particular purpose
of, or any damage to or loss or destruction of, the Aircraft or any portion
thereof, or any interruption or cessation in the use or possession of the
Aircraft by the Lessee or any sublessee for any reason including, without
limitation, by reason of governmental action or any doctrine of force
majeure or impossibility of performance;
(iii) any insolvency, bankruptcy, reorganization or similar case or
proceedings by or against the Lessor, the Lessee, the Indenture Trustee or
the Owner Participant or any other Person;
(iv) any Liens, encumbrances or rights of any other Person with
respect to the Aircraft, the invalidity or unenforceability or lack of due
authorization or other infirmity of this Lease or any other Operative
Agreement or document or instrument executed pursuant hereto or thereto, or
any lack of right, power or authority of the Lessor or the Lessee or any
sublessee or any other party to any other Operative Agreement to enter into
this Lease or any other Operative Agreement or any such document or
instrument; or
(v) any other circumstance, happening or event whatsoever, whether or
not unforeseen, or similar to any of the foregoing.
(b) To the extent permitted by applicable law, the Lessee waives any
and all rights which it may now have or which at any time it may have
conferred upon it, by statute or otherwise, to terminate, cancel, quit,
rescind or surrender this Lease, the Airframe, or any Engine or part thereof,
other than in accordance with the terms hereof.
(c) Except as expressly provided herein,
each payment of Rent made by the Lessee shall be final as to the Lessee, and
the Lessee will not seek to return nor to recover, xxxxx, suspend, defer or
reduce all or any part of any such payment of Rent for any reason.
ARTICLE 21
SUCCESSOR LESSOR
Section 21.01. Successor Lessor. The Lessee agrees that in the case
of the appointment of any successor trustee for the Lessor pursuant to the
terms of the Participation Agreement and the Trust Agreement, such successor
trustee shall, upon written notice by such successor to the Lessee, succeed to
all the rights, powers and title of the Lessor under this Lease and shall be
deemed to be the Lessor and the owner of the Aircraft for all purposes of this
Lease without the necessity of any consent or approval by the Lessee and
without in any way altering the terms of this Lease or the Lessee's
obligations. One such appointment and designation of a successor trustee
shall not exhaust the right to appoint and designate a further successor
trustee pursuant to the Participation Agreement, but such right may be
exercised repeatedly so long as this Lease shall be in effect.
ARTICLE 22
SECURITY FOR LESSOR'S OBLIGATIONS
Section 22.01. Security for Lessor's Obligations to Holders. In
order to secure the indebtedness evidenced by the Certificates, the Indenture
provides among other things, for the assignment by the Lessor to the Indenture
Trustee of this Lease and the Lease Supplement and for the creation of a first
mortgage and security interest in favor of the Indenture Trustee on the
Aircraft. The Lessee consents to and acknowledges such assignment (subject to
the reservations and conditions therein set forth) and the receipt of a copy
of the Indenture.
Section 22.02. [Reserved].
Section 22.03. Consent of Lessee to Assignment of Lease as Security.
The Lessee hereby accepts and consents to, pursuant to the terms of the
Indenture, the Indenture Trustee's rights to receive payments (other than
Excepted Payments not constituting Basic Rent) due under this Lease, the right
to transfer or assign title to the Aircraft subject to this Lease, to make all
waivers and agreements except as otherwise provided in the Indenture, to give
all notices, consents and releases and to take all action upon the happening
of a Default or Event of Default under this Lease (except as otherwise
specifically provided in the Indenture), or to do any and all other things
whatsoever which the Lessor is or may become entitled to do under this Lease
(except as otherwise provided in the Indenture); all or any of which rights,
obligations, benefits and interests may, pursuant to the terms of the
Indenture, be reassigned or retransferred by the Indenture Trustee at any time
and from time to time (except as otherwise provided in the Indenture);
provided, however, that the Lessor, except to the extent, and for such time
as, it is unable to do so by virtue of the Indenture, shall remain liable for
the performance of all the terms, conditions, covenants and provisions for
which it is obligated under this Lease notwithstanding such assignment.
ARTICLE 23
SECURITY FUNDS
Section 23.01. Investment of Security Funds. (a) Any amounts
otherwise payable to the Lessee shall, to the extent so required under the
terms of this Lease or any other Operative Agreement, be held by the Lessor as
security for, and may be applied by the Lessor against, the obligations of the
Lessee under this Lease and any other Operative Agreement during such time as
there shall have occurred and be continuing a Payment Default, Bankruptcy
Default or Event of Default, and, at such times as there shall not be
continuing a Payment Default, Bankruptcy Default or Event of Default, such
amounts, net of any amounts which have been applied by the Lessor against the
Lessee's obligations hereunder and thereunder, shall be paid to the Lessee.
Any amounts which are held by the Lessor pending payment to the Lessee shall,
until paid to the Lessee or applied against the Lessee's obligations hereunder
and thereunder, be invested by the Lessor, as directed from time to time, in
writing (and in the absence of a written direction by the Lessee, the Lessor
shall invest such monies in direct obligations of the United States of
America), by the Lessee and at the expense and risk of the Lessee, in the
following securities (which in the case of securities referred to in
subparagraphs (i) through (iv) of this Section 23.01(a) hereof shall mature
within ninety (90) days of the date of purchase):
(i) direct obligations of the United States of America; or
(ii) obligations fully guaranteed by the United States of America; or
(iii) certificates of deposit issued by, or bankers' acceptances of,
or time deposits or a deposit account with, any bank, trust company or
national banking association incorporated or doing business under the laws
of the United States of America or one of its States, having a combined
capital and surplus of at least $500,000,000 and having a rating of "A" or
better from Moody's or S&P; or
(iv) commercial paper rated A-1/P-1 by S&P or Moody's, respectively
(or if neither such organization shall rate such commercial paper at any
time, a rating by any nationally recognized statistical rating organization
in the United States of America equal to the highest rating assigned by
such rating organization).
(b) At any time any invested funds are distributed to the Lessee,
there shall be promptly remitted to the Lessee any gain (including interest
received) realized as the result of any investment pursuant to Section
23.01(a) hereof (net of any expenses, fees or commissions incurred by the
Lessor in connection with such investment), unless a Payment Default,
Bankruptcy Default or Event of Default shall have occurred and be continuing
in which case such funds shall be applied in the same manner as the principal
so invested. The Lessee shall be responsible for and will promptly pay to the
Indenture Trustee or the Lessor, as the case may be, on demand, the amount of
any loss realized as the result of any such investment (together with any
expenses, fees or commissions incurred by the Indenture Trustee or the Lessor
in connection with such investment), such amount to be disposed of in
accordance with the terms of the Indenture or the Lease, as the case may be.
ARTICLE 24
CONCERNING THE LESSOR
Section 24.01. Lessor's Entry Into Lease. Except as expressly
provided herein, the Lessor and the Lessee agree that this Lease is executed
by SSB not individually but solely as Owner Trustee under the Trust Agreement
in the exercise of the power and authority conferred and vested in it as such
Owner Trustee, that each and all of the representations, undertakings and
agreements by the Lessor herein are for the purpose and with the intention of
binding only the Lessor's Estate, and that in no case whatsoever shall SSB be
personally liable for any loss in respect of such representations,
undertakings and agreements, that actions to be taken by the Lessor pursuant
to its obligations hereunder may, in certain instances, be taken by the Lessor
only upon specific authority of the Owner Participant, that nothing herein
contained shall be construed as creating any liability on SSB, individually or
personally, to perform any covenant, either express or implied, herein, all
such liability, if any, being expressly waived by the Lessee and by each and
every Person now or hereafter claiming by, through or under the Lessee except
with respect to the gross negligence or willful misconduct of SSB, and that so
far as SSB, individually or personally is concerned, the Lessee and any Person
claiming by, through or under the Lessee shall look solely to the Lessor's
Estate for the performance by the Lessor of any of its obligations under this
Lease; provided, that nothing in this Section 24.01 shall be construed to
limit in scope or substance those representations and warranties of SSB in its
individual capacity set forth in the Participation Agreement and the Trust
Agreement. The term "Lessor" as used in this Lease shall include any trustee
succeeding SSB as Owner Trustee under the Trust Agreement. Any obligation of
the Lessor hereunder may be performed by the Owner Participant, and any such
performance shall not be construed as revocation of the trust created by the
Trust Agreement. Nothing contained in this Lease shall restrict the operation
of the provisions of the Trust Agreement with respect to its revocation of the
resignation or removal of the Owner Trustee hereunder.
ARTICLE 25
NOTICES
Section 25.01. Notices. All notices, demands, declarations and other
communications required by this Lease shall be in writing and shall be deemed
received (a) if given by telecopier, when transmitted and the appropriate
telephonic confirmation received if transmitted on a Business Day and during
normal business hours of the recipient, and otherwise on the next Business Day
following transmission, (b) if given by certified mail, return receipt
requested, postage prepaid, three Business Days after being deposited in the
United States mail, and (c) if given by FedEx service or other delivery
service of established reputation or other means, when received or personally
delivered, addressed in accordance with the terms of Article 14 of the
Participation Agreement.
ARTICLE 26
MISCELLANEOUS
Section 26.01. Section Heading and Captions. All article and section
headings and captions used in this Lease are purely for convenience and shall
not affect the interpretation of this Lease.
Section 26.02. References. Any reference to a specific article or
section number shall be interpreted as a reference to that article or section
of this Lease unless otherwise expressly provided.
Section 26.03. APPLICABLE LAW. THIS LEASE SHALL IN ALL RESPECTS BE
GOVERNED BY, AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE BUT
WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS, AND IS BEING
DELIVERED IN NEW YORK.
Section 26.04. Severability. Any provision of this Lease which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
Section 26.05. No Oral Modification. The terms and provisions of
this Lease may not be changed, waived, discharged or terminated orally, but
only by an instrument in writing signed by the party against which enforcement
of the change, waiver, discharge or termination is sought. Any such change,
waiver, discharge or termination is also subject to the provisions of Section
8.01 and Article XIII of the Indenture.
Section 26.06. Agreement as Chattel Paper. To the extent that this
Lease constitutes chattel paper (as such term is defined in the Uniform
Commercial Code as in effect in any applicable jurisdiction), no security
interest in this Lease may be created through the transfer or possession of
any counterpart other than the original chattel-paper counterpart, which shall
be the counterpart containing the receipt executed by the Indenture Trustee on
its signature page.
Section 26.07. Counterparts. This Lease may be executed in any
number of counterparts, each of which shall be an original (except that only
the counterpart bearing the receipt executed by the Indenture Trustee shall be
the original for purposes of perfecting a security interest therein as chattel
paper under the Uniform Commercial Code), but all of which taken together
shall constitute one and the same instrument and any of the parties hereto may
execute this Lease by signing any such counterpart.
ARTICLE 27
TRUE LEASE
Section 27.01. Intent of the Parties. It is the intent of the
parties to this Lease that for all purposes (including without limitation U.S.
federal income tax purposes) this Lease will be a true lease, and that this
Lease conveys to the Lessee no right, title or interest in the Aircraft except
as a lessee.
Section 27.02. Section 1110 Compliance. Notwithstanding any
provision herein or elsewhere contained to the contrary, it is understood and
agreed among the parties hereto that the transactions contemplated by this
Lease and the other Operative Agreements are expressly intended to be, shall
be and should be construed so as to be, entitled to the full benefits of
Section 1110 of the Bankruptcy Code from time to time with respect to the
right to repossess the Airframe, the Engines and any Parts as provided herein,
and in any circumstances where more than one construction of the terms and
conditions of the Lease is possible, a construction which would preserve such
benefits shall control over any construction which would not preserve such
benefits or would render them doubtful.
Section 27.03. Finance Lease. This Lease is a "finance lease"
within the meaning of Section 2-A-103(g) of the Uniform Commercial Code.
IN WITNESS WHEREOF, the Lessor and the Lessee have each caused this
Lease to be duly executed as of the date first above written.
LESSOR: STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Owner Trustee
By: _______________________________________________
Name: Xxxx X. Xxxxx
Title: Vice President
LESSEE: FEDERAL EXPRESS CORPORATION
By: _______________________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Vice President and Treasurer
Receipt of this original counterpart of the Lease is hereby
acknowledged on this __ day of February, 1998.
Indenture Trustee: FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Indenture Trustee
By: _____________________________________________
Name: Xxxx X. Xxxxxx
Title: Vice President
SCHEDULE I
DEFINITIONS
(FEDERAL EXPRESS CORPORATION TRUST NO. N584FE)
GENERAL PROVISIONS
The following terms shall have the following meanings for all
purposes of the Operative Agreements (other than the Intercreditor Agreement
and the Liquidity Facilities) referred to below, unless otherwise defined in
an Operative Agreement or the context thereof shall otherwise require. In the
case of any conflict between the provisions of this Schedule and the
provisions of any Operative Agreement, the provisions of such Operative
Agreement shall control the construction of such Operative Agreement.
Unless the context otherwise requires, (i) references to agreements
shall be deemed to mean and include such agreements as amended and
supplemented from time to time, and (ii) references to parties to agreements
shall be deemed to include the successors and permitted assigns of such
parties.
DEFINED TERMS:
Additional Insured. As defined in Article 13 of the Lease.
Aeronautics Authority. As appropriate, the Federal Aviation
Administration and/or the Administrator of the Federal Aviation
Administration, any successor to the former United States Civil Aeronautics
Board, or any Person, governmental department, bureau, commission or agency
located in the United States succeeding to the functions of any of the
foregoing.
Affidavits. The affidavits of citizenship of the Owner Trustee and
the Owner Participant.
Affiliate. With respect to any Person, any other Person directly or
indirectly controlling, controlled by or under common control with such
Person. For the purposes of this definition, "control" (including "controlled
by" and "under common control with") shall mean the power, directly or
indirectly, to direct or cause the direction of the management and policies of
such Person whether through the ownership of voting securities or by contract
or otherwise. In no event shall the Owner Trustee or the Lessor be deemed an
Affiliate of the Owner Participant.
After-Tax Basis. A basis such that any payment received or deemed to
have been received by a Person shall be supplemented by a further payment to
such Person so that the sum of the two payments, after deduction of all Taxes
resulting from the receipt or accrual of such payments, shall be equal to the
payment received or deemed to have been received. In the case of amounts
payable to the Lessor, the Owner Participant, or any corporate Affiliate of
the Owner Participant, it shall be presumed that such Person is at all times
subject to Federal income tax at the maximum marginal rate generally
applicable to corporations from time to time and actual state, local and
foreign income taxes.
Air Carrier. Any U.S. Air Carrier and any "foreign air carrier" (as
defined in the Transportation Code) as to which there is in force a permit
granted under Section 41302 of the Transportation Code.
Aircraft. The Airframe to be sold by the Lessee to the Owner Trustee
pursuant to the Participation Agreement and to be leased under the Lease (or
any permitted substitute airframe thereunder) together with three Engines (or
any Replacement Engine or Engines) whether or not any of such initial or
Replacement Engines may from time to time be installed on such Airframe or may
be installed on any other airframe or on any other aircraft, including any
aircraft substituted pursuant to Section 11.03 of the Lease.
Airframe. The XxXxxxxxx Xxxxxxx MD-11F aircraft (excluding the
Engines or engines from time to time installed thereon) to be leased by the
Lessor to the Lessee pursuant to the Lease and the initial Lease Supplement
and having the United States FAA Registration Number and manufacturer's serial
number specified in the initial Lease Supplement, including (i) all Parts in
respect thereof and (ii) any Replacement Airframe which may be substituted
pursuant to Section 11.03 of the Lease.
Amendment. The Amendment Agreement No. 1 to Trust Indenture and
Security Agreement (Federal Express Corporation Trust No. N584FE) dated
September 30, 1997 between the Indenture Trustee and the Owner Trustee.
Ancillary Agreement I. The Ancillary Agreement I (Federal Express
Corporation Trust No. N584FE), dated the Delivery Date, among the Lessee, the
Owner Trustee, not in its individual capacity, but solely as Owner Trustee,
the Owner Participant and the Indenture Trustee not in its individual
capacity, but solely as Indenture Trustee, as originally executed or as
amended, modified or supplemented with the consent of all the parties thereto.
Application. The application for registration of the Aircraft with
the FAA in the name of the Owner Trustee.
Appraisal. The report prepared by BK Associates, Inc. and to be
delivered to the Owner Participant (with a copy of such report to the Lessee)
on the Delivery Date pursuant to Section 4.01(n) of the Participation
Agreement.
Average Life Date. For any Certificate, the date which follows the
prepayment date by a period equal to the Remaining Weighted Average Life of
such Certificate.
Bankruptcy Code. The Federal Bankruptcy Code of 1978, as amended, and
any successor thereto.
Bankruptcy Default. An event specified in Section 16.01(e), (f) or
(g) of the Lease which either does or, with the giving of notice or lapse of
time or both, would constitute an Event of Default.
Basic Rent. The aggregate periodic rent payable for the Aircraft
throughout the Basic Term pursuant to Section 3.02 of the Lease, adjusted
pursuant to Article 3 of the Lease.
Basic Term. The period commencing at the beginning of the day on the
Delivery Date and ending at the end of the day on the day immediately
preceding the date 22 years from the Delivery Date, or such earlier date on
which the Lease shall be terminated as provided therein.
Beneficial Interest. The interest of the Owner Participant (or the
Initial Owner Participant, as the case may be) under the Trust Agreement.
Bills of Sale. Collectively, the FAA Xxxx of Sale and the Warranty
Xxxx of Sale.
Business Day. Except as provided in the next succeeding sentence,
any day other than a Saturday or Sunday or day on which commercial banks are
authorized or required to close in New York, New York, Albany, New York,
Memphis, Tennessee and the city in the United States in which the office or
agency is maintained by the Pass Through Trustee for the payment of the Pass
Through Certificates, and after the Lien of the Indenture has been discharged,
Hartford, Connecticut. With respect to notices and other communications to
the Lessee, Business Day shall mean any day other than a Saturday, Sunday or
day on which commercial banks are authorized to close in New York, New York
and Memphis, Tennessee.
Certificate Closing Date. May 28, 1997.
Certificates. The Equipment Trust Certificates (Federal Express
Corporation Trust No. N584FE), issued by the Owner Trustee pursuant to the
Indenture and any certificate issued in exchange therefor or replacement
thereof pursuant to the Indenture.
Change in Tax Law. Any change in the Code or the Treasury regulations
promulgated thereunder or the publication of any revenue ruling, revenue
procedure or any informational release by the Internal Revenue Service or the
Department of Treasury after execution of the Participation Agreement but on
or before the Delivery Date, either of which would change or would allow a
change in the tax assumptions or structure upon which the lease economics in
the Commitment Letter were based (for example, but not limited to, the ability
of the Lessor to incorporate a lessor-paid interim), provided that the Owner
Participant or the Lessee has notified the other party of such change in
writing prior to the Delivery Date.
Citizen of the United States. A citizen of the United States as
defined in Section 40102(a)(15) of the Transportation Code, or any analogous
part of any successor or substituted legislation or regulation at the time in
effect.
Commitment Letter. Has the meaning specified in Section 3.02(a) of
the Participation Agreement.
Class A Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Class B Liquidity Provider. Has the meaning specified in Section
1.01 of the Intercreditor Agreement.
Code. Except as otherwise provided, references to the Code shall
mean the Internal Revenue Code of 1986, as amended from time to time.
Collateral Account. The deposit account established and maintained
pursuant to Section 2.13 of the Indenture.
Collateral Account Control Agreement. The Collateral Account Control
Agreement dated as of May 1, 1997 among State Street Bank and Trust Company,
the Indenture Trustee and the Owner Trustee.
Commitment. The amount of the Owner Participant's participation in
the Purchase Price required to be made available or paid on the Delivery Date,
as provided in Section 3.02 of the Participation Agreement and as set forth in
Schedule I of the Participation Agreement.
Corporate Trust Administration. The Corporate Trust Administration
office of the Owner Trustee located at 000 Xxxxxx Xxxxxx, Xxxxxxx Square,
Hartford, Connecticut 06103, Attention: Corporation Trust Administration, or
such other office at which the Owner Trustee's corporate trust business shall
be administered which the Owner Trustee shall have specified by notice in
writing to the Lessee, the Owner Participant and the Indenture Trustee.
Corporate Trust Department. The Corporate Trust Department office of
the Indenture Trustee located at 00 Xxxxx Xxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxx
00000, Attention: Corporate Trust Department, or such other office at which
the Indenture Trustee's corporate trust business shall be administered which
the Indenture Trustee shall have specified by notice in writing to the Lessee,
the Owner Participant and the Owner Trustee.
CRAF Program. Has the meaning specified in Section 7.01(f) of the
Lease.
Cut-Off Date. April 15, 1998.
Debt Portion. The amount specified as such on Schedule I to the
Participation Agreement.
Debt Rate. The weighted average (based on Outstanding principal
amount) rate of interest on the Certificates issued pursuant to the Indenture.
Default. Any event or condition which, with the lapse of time or the
giving of notice, or both, would constitute an Event of Default.
Delivery Date. The date on which the Aircraft is delivered and sold
by the Lessee to the Lessor and leased by the Lessor to the Lessee under the
Lease, which date shall also be the date of the initial Lease Supplement.
Delivery Notice. Notice of the Aircraft's Delivery Date, given by
the Lessee as provided in Section 3.01 of the Participation Agreement and
including any notice with respect to a postponed Delivery Date given by the
Lessee pursuant to Section 3.03(c) of the Participation Agreement.
EBO Date. Has the meaning specified in Section 4.02(a)(F) of the
Lease.
EBO Price. Has the meaning specified in Section 4.02(a)(F) of the
Lease.
Eligible Deposit Account. Either (a) a segregated account with an
Eligible Institution or (b) a segregated trust account with the corporate
trust department of a depository institution with corporate trust powers
organized under the laws of the United States or any state thereof, or the
District of Columbia, and whose deposits are insured by the Federal Deposit
Insurance Corporation, provided that such institution also has a combined
capital and surplus of at least $100,000,000 and a rating of A or better from
the Thomson Bank Watch.
Eligible Institution. A depository institution organized under the
laws of the United States or any one of the states thereof, or the District of
Columbia, or any domestic branch of a foreign bank, which in any such case at
all times (a) has either (x) a long-term unsecured debt rating of at least Aa2
by Moody's or (y) a short-term certificate of deposit rating of P-1 by
Moody's, (b) has either (x) a long-term unsecured debt rating of a least AA by
S&P or (y) a short-term certificate of deposit rating of A-1+ by S&P and (c)
is a member of the Federal Deposit Insurance Corporation.
Engine. Each of the three General Electric CF6-80C2-D1F engines
listed by its manufacturer's serial number in the initial Lease Supplement and
leased pursuant to the Lease, whether or not from time to time installed on
the Airframe or installed on any other airframe or on any other aircraft, and
any Replacement Engine which may from time to time be substituted for an
Engine pursuant to Section 7.02(a)(vii), 10.03, 11.03, 11.04 or 12.02 of the
Lease, together with all Parts related thereto. Except as otherwise provided,
at such time as a Replacement Engine shall be so substituted and the Engine
for which the substitution is made shall be released from the Lien of the
Indenture, such replaced Engine shall cease to be an "Engine" under the Lease.
The term "Engines" means, as of any date of determination, all Engines then
leased to the Lessee pursuant to the Lease.
Engine Consent. The Engine Consent dated as of February 1, 1998,
executed by the Engine Manufacturer.
Engine Manufacturer. General Electric Company, a New York
corporation.
Engine Warranty Assignment. The Engine Warranty Assignment (Federal
Express Corporation Trust No. N584FE), dated as of February 1, 1998, between
the Lessor and the Lessee.
ERISA. The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Plan. As defined in Section 15.01(e)(viii) of the Participation
Agreement.
Estimated Expense Amount. Has the meaning specified in Section
10.01(a) of the Participation Agreement.
Event of Default. Each of the events specified in Article 16 of the
Lease.
Event of Loss. Any of the following events with respect to the
Aircraft, the Airframe or any Engine: (i)(A) loss of such property or its use
due to theft or disappearance for a period in excess of 30 days (or such
longer period not to exceed 60 days from the end of such 30 day period if and
so long as the location of such property is known and the Lessee is pursuing
the recovery thereof) or to the end of the Term, if less, unless such event
constitutes an Event of Loss under clause (i)(B), clause (i)(C) or clause (ii)
below, (B) loss of such property or its use due to the destruction thereof or
(C) loss of such property or its use due to damage beyond economic repair or
rendition of such property permanently unfit for normal use by Lessee for any
reason whatsoever for a period in excess of 30 days; (ii) any damage to such
property which results in an insurance settlement with respect to such
property on the basis of a total loss, or constructive or compromised total
loss; (iii) (1) condemnation, confiscation or seizure of, or requisition of
title to such property by the Government, any foreign government or purported
government or any agency or instrumentality thereof, or (2) condemnation,
confiscation, or seizure of, or requisition or taking of, use of such property
(A) by a foreign government, or instrumentality or agency of any such foreign
government, or any purported government or instrumentality or agency thereof
for a period in excess of 180 days or the end of the Term, if less, or (B) by
the Government for a period extending beyond the Term provided that no Event
of Loss shall be deemed to have occurred, and the Term shall be extended
automatically for a period of up to six months beyond the end of the Term in
the event that the Aircraft or the Airframe or any Engine is requisitioned by
the Government pursuant to an activation as part of the Civil Reserve Air
Fleet Program described in Section 7.02(a)(iv) of the Lease; or (iv) as a
result of any law, rule, regulation, order or other action by the Aeronautics
Authority or other governmental body having jurisdiction, (A) the use of the
Aircraft or Airframe in the normal course of air transportation of cargo shall
have been prohibited for a period of six (6) consecutive months, unless the
Lessee, prior to the expiration of such six (6) month period, shall be
diligently carrying forward all steps which are necessary and desirable to
permit the normal use of the Aircraft or Airframe, (B) the use of the Aircraft
or Airframe shall have been prohibited for a period of twelve (12) consecutive
months, unless the Lessee shall have conformed at least one XxXxxxxxx Xxxxxxx
MD-11F series aircraft (but not necessarily the Aircraft or the Airframe) to
the requirements of any such law, rule, regulation, order or other action and
shall have commenced regular commercial use of such aircraft and shall be
diligently carrying forward on a non-discriminatory basis, all steps necessary
or desirable to permit the normal use of the Aircraft by the Lessee or (C) the
use of the Aircraft or Airframe shall have been prohibited for a period of
twenty-four (24) months. The date of such Event of Loss shall be (s) the 30th
day or the 90th day, as the case may be, following loss of such property or
its use due to theft or disappearance; (t) the date of any destruction of such
property; (u) the 30th day following the date of damage beyond economic repair
or rendition of such property permanently unfit for normal use; (v) the date
of any insurance settlement on the basis of a total loss or constructive or
compromised total loss; (w) the date of any condemnation, confiscation,
seizure or requisition of title of such property; (x) the 181st day following
condemnation, confiscation, seizure or requisition for use of such property by
a foreign government referred to in clause (iii)(2)(A) above and the date of
such condemnation, confiscation, seizure or requisition in the case of any
other foreign government or instrumentality or agency thereof; (y) the last
day of the Term in the case of requisition for use of such property by the
Government or (z) the last day of the 6 month, 12 month or 24 month period,
referred to in clause (iv) above. An Event of Loss with respect to the
Aircraft shall be deemed to have occurred if any Event of Loss occurs with
respect to the Airframe.
Excepted Payments. Collectively, (i) indemnity or other payments (and
interest thereon to the extent provided in the Operative Agreements) paid or
payable by the Lessee in respect of the Owner Participant, the Owner Trustee
in its individual capacity, their Affiliates or any of their respective
successors, permitted assigns, directors, officers, employees, servants and
agents, pursuant to Article 8, 9, or 10 and Section 15.01 of the Participation
Agreement or any indemnity hereafter granted to the Owner Participant or the
Owner Trustee in its individual capacity pursuant to Section 7.01(f), Article
9, Section 11.03(a) or 13.01(b) of the Lease or Sections 6.03(b)(i)(F),
7.04(c), 7.05(c), 8.04 and 15.01 of the Participation Agreement, (ii) proceeds
of public liability insurance (or government indemnities in lieu thereof) in
respect of the Aircraft payable as a result of insurance claims paid for the
benefit of, or losses suffered by, the Owner Trustee or the Indenture Trustee
in their respective individual capacities or by the Owner Participant, or
their respective successors, permitted assigns or Affiliates, (iii) proceeds
of insurance maintained with respect to the Aircraft by the Owner Participant
(whether directly or through the Owner Trustee) maintained in accordance with
the provisions of but not required under Article 13 of the Lease, (iv)
payments of Supplemental Rent by the Lessee in respect of any amounts payable
under the Tax Indemnity Agreement, (v) any amounts payable by the Lessee to the
Owner Participant or the Owner Trustee in its individual capacity, after the
release thereof from the Lien of the Indenture, (vi) subject to Section 3.05
of the Lease, payments constituting increases in Basic Rent attributable to
payments arising pursuant to Section 5 of the Tax Indemnity Agreement, (vii)
all costs and expenses payable or reimbursable by the Lessee to the Owner
Participant or the Owner Trustee pursuant to Section 17.04 of the Lease,
(viii) the right to retain amounts distributed to the Owner Participant under
Article V of the Indenture and (ix) any right to demand, collect or otherwise
receive and enforce the payment of any amount described in clauses (i) through
(viii) above and any interest or late charges on the foregoing.
Expense; Expenses. Have the meaning specified in Section 9.01(a) of
the Participation Agreement.
FAA. The United States Federal Aviation Administration and any
successor agency or agencies thereto.
FAA Xxxx of Sale. The xxxx of sale for the Airframe on AC Form
8050-2, or such other form as may be approved by the Aeronautics Authority,
executed by the Lessee in favor of the Owner Trustee and to be dated the
Delivery Date.
Fair Market Renewal Term. A term with respect to which the Lessee has
exercised its option to renew the Lease pursuant to the second paragraph of
Section 4.01(a) thereof and with respect to which the conditions set forth in
the third paragraph of Section 4.01(a) are met.
Fair Market Rental. An amount determined on the basis of, and equal
in amount to, the rental which would be obtained in an arm's-length
transaction between an informed and willing lessee and an informed and willing
lessor unaffiliated with such lessee, neither being under any compulsion to
lease. In such determination, except for purposes of Section 17.01 of the
Lease, it shall be assumed that the Aircraft is in the condition required
under the Lease in the case of return of the Aircraft pursuant to Article 12
of the Lease and Fair Market Rental shall be determined in accordance with the
provisions of Section 4.03 of the Lease. For purposes of Section 17.01 of the
Lease, such determination shall be made on an "as is, where is" basis by a
qualified independent appraiser selected by the Lessor and the costs and
expenses of the appraisal shall be borne by the Lessee, unless the Lessor does
not obtain possession of the Aircraft pursuant to such Section 17.01, in which
case an appraiser shall not be appointed and such Fair Market Rental shall be
deemed to be zero.
Fair Market Value. An amount determined on the basis of, and equal in
amount to, the value which would be obtained in an arm's-length transaction
between an informed and willing purchaser under no compulsion to buy and an
informed and willing seller unaffiliated with such purchaser and under no
compulsion to sell, assuming the Aircraft (or other property) is unencumbered
by the Lease. In such determination, except for purposes of Section 17.01 of
the Lease, it shall be assumed that the Aircraft is in the condition required
under the Lease in the case of return of the Aircraft pursuant to Article 12
of the Lease and Fair Market Value shall be determined in accordance with the
provisions of Section 4.03 of the Lease. For purposes of Section 17.01 of the
Lease, such determination shall be made on an "as is, where is" basis by a
qualified independent appraiser selected by the Lessor and the costs and
expenses of the appraisal shall be borne by the Lessee, unless the Lessor does
not obtain possession of the Aircraft free and clear of all Liens and
unencumbered by the Lease pursuant to such Section 17.01, in which case an
appraiser shall not be appointed and such Fair Market Value shall be deemed to
be zero.
Federal Aviation Administration. The United States Federal Aviation
Administration and any successor agency or agencies thereto.
FedEx. Federal Express Corporation.
Final Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Fixed Renewal Rent. Semi-annual payments of rent during the Fixed
Renewal Term equal to the amount set forth in Ancillary Agreement I.
Fixed Renewal Term. A renewal term or terms provided for under the
second paragraph of Section 4.01(a) of the Lease.
FSB. First Security Bank, National Association, a national banking
association.
Government. The United States of America or an agency or
instrumentality thereof the obligations of which bear the full faith and
credit of the United States of America.
GTA. The General Terms Agreement dated as of July 3, 1991 between the
Engine Manufacturer and the Lessee related to the purchase by the Lessee of the
Engines as originally executed or as modified, amended or supplemented in
accordance with the terms thereof, but only insofar as the General Terms
Agreement relates to the Engines, to the extent assigned to the Owner Trustee
pursuant to the Engine Warranty Assignment.
Holder of a Certificate; Certificate Holder; Holder. As of any
particular time, the Person in whose name a Certificate shall be registered
(but not including the holder of any Pass Through Certificate).
Indemnitee. Each of SSB, in its individual capacity and as Owner
Trustee and Lessor, the Subordination Agent, in its individual capacity and in
its capacity as Subordination Agent, each Liquidity Provider, the Owner
Participant, the Indenture Trustee, in its individual capacity and as
Indenture Trustee, and any successor (including any trustee which may succeed
to the Lessor's interest under the Lease), Affiliate, assign, officer,
director, employee, agent and servant of any of the foregoing, the Lessor's
Estate and the Trust Indenture Estate. Neither the Pass Through Trustee nor
any holder of a Pass Through Certificate shall be deemed to be an Indemnitee.
Indenture. The Trust Indenture and Security Agreement (Federal
Express Corporation Trust No. N584FE), dated as of May 1, 1997, as amended by
the Amendment and as amended and restated as of February 1, 1998, between the
Lessor and the Indenture Trustee, as supplemented by the Indenture and
Security Agreement Supplement.
Indenture and Security Agreement Supplement. The Indenture and
Security Agreement Supplement No. 1 (Federal Express Corporation Trust No.
N584FE) to be dated the Delivery Date, substantially in the form of Exhibit A
to the Indenture.
Indenture Default. Any event or condition which, with the lapse of
time or the giving of notice, or both, would constitute an Indenture Event of
Default.
Indenture Documents. Has the meaning specified in the Granting
Clause of the Indenture.
Indenture Event of Default. Each of the events specified in Section
7.01 of the Indenture.
Indenture Trustee. First Security Bank, National Association, a
national banking association, not in its individual capacity but solely as
Indenture Trustee under the Indenture.
Indenture Trustee's Liens. Any Lien against, on or with respect to
the Aircraft, the Lessor's Estate or the Trust Indenture Estate or any part
thereof resulting from (i) claims against the Indenture Trustee not related to
the administration of the Trust Indenture Estate or any transactions pursuant
to the Indenture or any document included in the Trust Indenture Estate, (ii)
any act or omission of the Indenture Trustee which is not related to the
transactions contemplated by the Operative Agreements or is in violation of
any of the terms of the Operative Agreements or (iii) Taxes imposed against
the Indenture Trustee in its individual capacity or its Affiliates against
which the Lessee has not indemnified (and is not obligated to indemnify) the
Indenture Trustee in such capacity.
Independent Appraisal. An appraisal conducted pursuant to Section
4.03 of the Lease.
Independent Investment Banker. An independent investment banking
institution of national standing appointed by the Lessee that is independent
in fact, does not have any direct financial interests, or any material
indirect financial interest, in the Lessee or any Affiliate of the Lessee, and
is not connected with the Lessee or any Affiliate of the Lessee, as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions; provided, that if the Indenture Trustee shall
not have received written notice of such an appointment at least 10 days prior
to the Prepayment Date, "Independent Investment Banker" shall mean such an
institution appointed by the Indenture Trustee.
Initial Owner Participant. Federal Express Corporation, a Delaware
corporation.
Intercreditor Agreement. The Intercreditor Agreement dated as of May
1, 1997, among the Pass Through Trustee, the Class A Liquidity Provider, the
Class B Liquidity Provider and the Subordination Agent.
Interest Drawing. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Invoice. The invoice for the Aircraft given by the Lessee to the
Lessor.
Lease. The Lease Agreement (Federal Express Corporation Trust No.
N584FE) dated as of May 1, 1997, as amended and restated as of February 1,
1998, entered into by the Lessor and the Lessee concurrently with the
execution and delivery of the Indenture, including, without limitation,
supplementation by one or more Lease Supplements entered into pursuant to the
applicable provisions of the Lease.
Lease Supplement. The Lease Supplement No. 1 (Federal Express
Corporation Trust No. N584FE) to be dated the Delivery Date, substantially in
the form of Exhibit A to the Lease.
Lease Term. The period commencing on the Delivery Date and ending at
the end of the Basic Term.
Lessee. Federal Express Corporation, a Delaware corporation.
Lessee Documents. Has the meaning set forth in Section 6.01(b) of the
Participation Agreement.
Lessor. State Street Bank and Trust Company of Connecticut, National
Association, a national banking association, not in its individual capacity
but solely as Owner Trustee under the Trust Agreement.
Lessor's Estate. All estate, right, title and interest of the Owner
Trustee in and to the Collateral Account, the Liquid Collateral, the Aircraft,
the Lease, any Lease Supplement, the Participation Agreement, the Bills of
Sale, the Modification Agreement, the GTA, the Engine Warranty Assignment, the
Engine Consent, any warranty with respect to the Airframe and the Engines, all
amounts of Basic Rent, Renewal Rent and Supplemental Rent, including without
limitation, insurance proceeds (other than insurance proceeds payable to or
for the benefit of either the Owner Trustee in its individual capacity or the
Owner Participant) and requisition, indemnity or other payments of any kind
for or with respect to the Aircraft (except amounts owing to the Owner
Participant or to the Owner Trustee in its individual capacity, or to any of
their respective directors, officers, employees and agents pursuant to
Articles 8 and 9 of the Participation Agreement). Notwithstanding the
foregoing, "Lessor's Estate" shall not include any Excepted Payment.
Lessor's Liens. Liens against, on or with respect to the Aircraft,
the Lessor's Estate or the Trust Indenture Estate or any part thereof, title
thereto or any interest therein arising as a result of (i) claims against the
Lessor, in its individual capacity or as Owner Trustee, the Owner Participant
or any Affiliate of the Owner Participant, in each case not related to the
transactions contemplated by the Operative Agreements, (ii) acts or omissions
of the Lessor in its individual capacity or as Owner Trustee, and, in the case
of the Lessor in its individual capacity, arising from its gross negligence or
willful misconduct either not related to the transactions contemplated by or
expressly prohibited under the Operative Agreements and any act or omission of
the Owner Participant or any Affiliate of the Owner Participant which is not
related to the transactions contemplated by the Operative Agreements or is in
violation of any of the terms of the Operative Agreements, (iii) Taxes or
Expenses imposed against the Lessor, in its individual capacity or as Owner
Trustee, or the Owner Participant or any Affiliate of the Owner Participant,
the Lessor's Estate or the trust created by the Trust Agreement which are not
required to be indemnified against by the Lessee pursuant to the Tax Indemnity
Agreement or by reason of Section 8.01(b) or 9.01(b) of the Participation
Agreement, or (iv) claims against the Lessor or the Owner Participant arising
from the voluntary transfer by the Lessor or the Owner Participant of its
interests in the Aircraft other than a transfer of the Aircraft pursuant to
Section 4.02(a) or Article 10 or 11 of the Lease and other than a transfer
pursuant to the exercise of the remedies set forth in Article 17 of the Lease.
Lien. Any mortgage, pledge, lien, charge, encumbrance, lease or
security interest or other similar interest.
Liquid Collateral. All amounts and securities deposited from time to
time in the Collateral Account and all the products, investments, earnings and
proceeds of the foregoing, including, but not limited to, all proceeds of the
investment or conversion thereof, voluntary or involuntary, into cash,
Specified Investments or other property, all rights to payment of any and
every kind, and other forms of obligations, and instruments and other property
which at any time constitute all or part or are included in the proceeds of
any of the foregoing.
Liquidity Facility. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Liquidity Provider. Has the meaning specified in Section 1.01 of the
Intercreditor Agreement.
Losses. Has the meaning specified in Section 17.02(a) of the
Participation Agreement.
Loss Payee. Has the meaning specified in Section 13.02(b)(i) of the
Lease.
Majority in Interest of Certificate Holders. As of a particular date
of determination, the Holders of more than 50% of the aggregate unpaid
principal amount of all Certificates outstanding as of such date excluding for
purposes of this definition any Certificates held by (i) the Owner Trustee or
the Owner Participant unless all Certificates then outstanding shall be held
by such Owner Participant, (ii) the Lessee or (iii) any Affiliate of any
thereof.
Make-Whole Premium. An amount determined as of the day before the
applicable Prepayment Date (or date of purchase, as the case may be) which an
Independent Investment Banker determines to be equal to the excess, if any, of
(i) the present value of the remaining scheduled payments of such principal
amount or portion thereof and interest thereon (excluding interest accrued
from the immediately preceding Payment Date to such Prepayment Date or date of
purchase, as the case may be) to the Maturity of such Certificate in
accordance with generally accepted financial practices assuming a 360-day year
consisting of twelve 30-day months at a discount rate equal to the Treasury
Yield, all as determined by the Independent Investment Banker over (ii) the
outstanding principal amount of such Certificate plus accrued interest.
Mandatory Document Terms. The terms set forth on Schedule V to the
Original Participation Agreement.
Mandatory Economic Terms. The terms set forth on Schedule VI to the
Original Participation Agreement.
Manufacturer. XxXxxxxxx Xxxxxxx Corporation, a Maryland corporation.
Maturity. With respect to any Certificate, the date on which the
final principal amount of such Certificate is scheduled to be due and payable.
Modification Agreement. The Aircraft Modification Agreement dated as
of December 1, 1995 between the Lessee and the Manufacturer providing for the
refurbishing and reconfiguration of the Aircraft including any warranties
relating thereto, but only to the extent that the foregoing relates to the
Aircraft, to the extent assigned to the Owner Trustee pursuant to the Warranty
Xxxx of Sale.
Moody's. Xxxxx'x Investors Service, Inc.
Net Present Value of Rents. The net present value, as of the
Delivery Date, of Basic Rent set forth in Schedule II of the Lease, discounted
at a rate per semi-annual period equal to the Debt Rate.
Non-U.S. Person. Any Person other than (i) a citizen or resident of
the United States, as defined in Section 7701(a)(30) of the Code, (ii) a
corporation, partnership or other entity created or organized in or under the
laws of the United States or any political subdivision thereof or therein, or
(iii) any estate or trust that is subject to United States federal income
taxation regardless of the source of its income.
Obsolete Parts. Parts which the Lessee in good faith determines to be
obsolete or no longer suitable or appropriate for use on the Airframe or any
Engine.
Officer's Certificate. When delivered pursuant to the Indenture, a
certificate signed by a Responsible Officer of the Lessee or the Owner
Trustee, as the case may be, and delivered to the Indenture Trustee. Each
such certificate shall include the statements provided for in Section 15.07 of
the Indenture.
Operative Agreements. The Participation Agreement, the Trust
Agreement, the Bills of Sale, the Modification Agreement, the GTA, the Engine
Warranty Assignment, the Lease, the Lease Supplement, the Owner Participant
Guaranty, if any, the Owner Trustee Guaranty, if any, the Ancillary Agreement
I, the Certificates outstanding at the time of reference, the Indenture, the
Indenture and Security Agreement Supplement, the Engine Consent, each
Liquidity Facility, the Intercreditor Agreement, the Collateral Account
Control Agreement and the Tax Indemnity Agreement.
Opinion of Counsel. When delivered pursuant to the Indenture, a
written opinion of legal counsel, who in the case of counsel (a) for the
Lessee may be (i) an attorney employed by the Lessee who is generally
empowered to deliver such written opinions, (ii) Xxxxx Xxxx & Xxxxxxxx or a
successor firm or (iii) other counsel designated by the Lessee and reasonably
satisfactory to the Indenture Trustee and (b) for the Owner Trustee or the
Indenture Trustee, an attorney selected by such Person and, in the case of the
Owner Trustee, reasonably satisfactory to the Indenture Trustee.
Original Agreements. The documents and instruments delivered on the
Certificate Closing Date in connection with the transactions contemplated by
the Original Participation Agreement.
Original Indenture. The Trust Indenture and Security Agreement
(Federal Express Corporation Trust No. N584FE), dated as of May 1, 1997,
between the Owner Trustee and the Indenture Trustee originally executed and
delivered on the Certificate Closing Date and amended by the Amendment.
Original Lease. The Lease Agreement (Federal Express Corporation
Trust No. N584FE), dated as of May 1, 1997, between the Owner Trustee as
lessor, and the Lessee originally executed and delivered on the Certificate
Closing Date.
Original Participation Agreement. The Participation Agreement
(Federal Express Corporation Trust No. N584FE), dated as of May 1, 1997, among
the Lessee, the Initial Owner Participant, the Indenture Trustee, the Owner
Trustee, the Pass Through Trustee and the Subordination Agent originally
executed and delivered on the Certificate Closing Date.
Original Trust Agreement. The Trust Agreement (Federal Express
Corporation Trust No. N584FE), dated as of May 1, 1997, between the Initial
Owner Participant and the Owner Trustee originally executed and delivered on
the Certificate Closing Date.
Outstanding. When used with respect to Certificates, as of the date
of determination and subject to the provisions of Section 10.04 of the
Indenture, all Certificates theretofore executed and delivered under the
Indenture, with the exception of the following:
(i) Certificates theretofore cancelled by the Indenture Trustee or
delivered to the Indenture Trustee for cancellation pursuant to
Section 2.08 of the Indenture or otherwise;
(ii) Certificates for which prepayment money in the necessary amount
has been theretofore deposited with the Indenture Trustee in trust
for the Holders of such Certificates pursuant to Section 14.01 of the
Indenture; provided, that if such Certificates are to be prepaid,
notice of such prepayment has been duly given pursuant to the
Indenture or provision therefor satisfactory to the Indenture Trustee
has been made; and
(iii) Certificates in exchange for or in lieu of which other
Certificates have been executed and delivered pursuant to Article II
of the Indenture.
Owner Participant. The Person to whom on the Delivery Date the
Initial Owner Participant shall transfer its Beneficial Interest pursuant to
Section 3.02 of the Original Participation Agreement and any successors
thereto, and any Person to which the Owner Participant transfers, in
accordance with the Trust Agreement, its right, title and interest in and to
the Operative Agreements and the Lessor's Estate.
Owner Participant Guarantor. The provider, if any, of an Owner
Participant Guaranty.
Owner Participant Guaranty. Any guaranty delivered in compliance with
Article 5 of the Trust Agreement.
Owner Trustee. SSB, not in its individual capacity except as
otherwise expressly stated, but solely as Owner Trustee under the Trust
Agreement.
Owner Trustee Guarantor. The provider, if any, of an Owner Trustee
Guaranty.
Owner Trustee Guaranty. Any guaranty delivered in compliance with
Section 11.01(b)(ii) of the Participation Agreement.
Owner's Economic Return. The Owner Participant's anticipated net
after-tax yield and aggregate after-tax cash in the Basic Term, utilizing the
multiple investment sinking fund method of analysis, computed on the basis of
the same methodology and assumptions as were utilized by the Owner Participant
in determining Basic Rent, Stipulated Loss Value and Termination Value
percentages and EBO Price, as such assumptions may be adjusted for events
which have been the basis of adjustments to Rent pursuant to Section 3.04 of
the Lease.
Participation Agreement. The Participation Agreement (Federal Express
Corporation Trust No. N584FE), dated as of May 1, 1997, as amended and
restated as of February 1, 1998, among the Lessee, the Owner Trustee not in
its individual capacity except as otherwise expressly provided therein, but
solely as owner trustee, the Owner Participant, the Indenture Trustee not in
its individual capacity except as otherwise expressly provided therein, but
solely as indenture trustee, the Pass Through Trustee not in its individual
capacity except as otherwise expressly provided therein, but solely as pass
through trustee and the Subordination Agent not in its individual capacity
except as otherwise expressly provided therein, but solely as subordination
agent.
Parts. All appliances, parts, components, instruments, appurtenances,
accessories, furnishings and other equipment of whatever nature (other than
complete Engines or engines) which may from time to time be incorporated or
installed in or attached to the Airframe or any Engine or, prior to
replacement thereof in accordance with the Lease, which may be removed
therefrom.
Pass Through Agreement. The Pass Through Trust Agreement dated as of
May 1, 1997, between the Lessee and the Pass Through Trustee.
Pass Through Certificates. Any of the Pass Through Certificates,
1997-1-A, the Pass Through Certificates, 1997-1-B or the Pass Through
Certificates, 1997-1-C, in each case as issued by the related Pass Through
Trust; and "Pass Through Certificates" means all of the Pass Through
Certificates issued by each of the Pass Through Trusts.
Pass Through Closing Date. May 28, 1997.
Pass Through Trust. The Federal Express Corporation 1997-1 Pass
Through Trust Class A, Federal Express Corporation 1997-1 Pass Through Trust
Class B and Federal Express Corporation 1997-1 Pass Through Trust Class C, in
each case formed pursuant to the related Series Supplement in accordance with
the Pass Through Agreement; and "Pass Through Trusts" means all of such Pass
Through Trusts.
Pass Through Trustee. First Security Bank, National Association, a
national banking association, in its capacity as Pass Through Trustee under
the Pass Through Agreement and each Pass Through Trust.
Past Due Rate. In respect of (A) any amount payable to the Owner
Participant or the Owner Trustee a rate per annum during the period from and
including the due date to but excluding the date on which such amount is paid
in full equal to 2% plus the Debt Rate and (B) any principal of or interest on
any Certificate or any other amount payable under the Indenture, any
Certificate or any other Operative Agreement that is not paid when due
(whether at Maturity, by acceleration, by optional or mandatory prepayment or
otherwise) to any Holder, the Indenture Trustee or the Pass Through Trustee, a
rate per annum during the period from and including the due date to but
excluding the date on which such amount is paid in full equal to (i) in the
case of any such amount payable to the Holder of any Certificate, 2% plus the
interest rate applicable to such Certificate and (ii) in the case of any other
such amount, 2% plus the Debt Rate.
Payment Date. Each January 15 and July 15 commencing on July 15,
1997.
Payment Default. Any event specified in Section 16.01(a) or 16.01(b)
of the Lease which with the giving of notice or lapse of time or both would
constitute an Event of Default.
Permitted Investments. Those investments enumerated in Section
23.01(a) (i), (ii), (iii) and (iv) of the Lease.
Person. Any individual, sole proprietorship, partnership, joint
venture, joint stock company, trust, unincorporated organization, association,
corporation, institution, entity or government (federal, state, local, foreign
or any agency, instrumentality, division or body thereof).
Pool Balance. Has the meaning specified in Article I to the Series
Supplement.
Pool Factors. Has the meaning specified in Article I to the Series
Supplement.
Preliminary Notice. Has the meaning specified in Section 4.01(a) of
the Lease.
Premium Termination Date. With respect to the Series A Certificates,
December 27, 2011, with respect to the Series B Certificates, February 5, 2010
and with respect to the Series C Certificates, March 22, 2007.
Prepayment Date. Has the meaning specified in Section 6.02(b) of the
Indenture.
Prepayment Price. Has the meaning specified in Section 6.02(b) of the
Indenture.
Principal Amount. With respect to a Certificate means the stated
original principal amount of such Certificate and, with respect to all
Certificates, means the aggregate stated original principal amounts of all
Certificates.
Property. Any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible.
Proposed Termination Date. Has the meaning specified in Section
10.01(a) of the Lease.
Purchase Price. The amount specified as such in Ancillary Agreement
I.
Rating Agencies. Collectively, at any time, each nationally
recognized rating agency which shall have been requested to rate the Pass
Through Certificates and which shall then be rating the Pass Through
Certificates. The initial Rating Agencies will be Moody's and S&P.
Rating Agency Confirmation. With respect to any Operative Agreement
that is to be modified in any material respect on the Delivery Date or the
Transfer Date, if applicable, a written confirmation from each of the Rating
Agencies that the use of such Operative Agreement with such modifications
would not result in (i) a reduction of the rating for any Class of Pass
Through Certificates below the then current rating for such Class of Pass
Through Certificates or (ii) a withdrawal or suspension of the rating of any
Class of Pass Through Certificates.
Record Date. With respect to Payment Dates under the Indenture
(except a date for payment of defaulted interest), December 31 for January 15
Payment Dates and June 30 for July 15 Payment Dates, whether or not such date
is a Business Day.
Recourse Amount. Has the meaning specified in Section 17.10 of the
Participation Agreement.
Refinancing. A non-recourse loan to the Lessor arranged pursuant to
Section 15.01 of the Participation Agreement.
Register. Has the meaning set forth in Section 3.02 of the Indenture.
Registrar. Has the meaning set forth in Section 3.02 of the
Indenture.
Regulation D. Regulation D of the Board of Governors of the Federal
Reserve System (or any successor), as the same may be modified and
supplemented and in effect from time to time.
Remaining Weighted Average Life. On a given date with respect to any
Certificate the number of days equal to the quotient obtained by dividing (i)
the sum of each of the products obtained by multiplying (a) the amount of each
then remaining scheduled payment of principal of such Certificate by (b) the
number of days from and including such prepayment date to but excluding the
dates on which each such payment of principal is scheduled to be made; by (ii)
the then outstanding principal amount of such Certificate.
Renewal Rent. The amount payable by the Lessee as rent in accordance
with Section 4.01 of the Lease during any Renewal Term.
Renewal Term. Any Fixed Renewal Term or Fair Market Renewal Term with
respect to which the Lessee has exercised its option to renew the Lease
pursuant to Section 4.01(a) thereof.
Rent. All payments due from the Lessee under the Lease as Basic Rent,
Renewal Rent and Supplemental Rent, collectively.
Rent Payment Date. February 26, 2020 and each January 15 and July 15
commencing on July 15, 1998, and continuing thereafter during the Term.
Replacement Aircraft. Any aircraft substituted for the Aircraft
pursuant to Section 11.03(a) of the Lease.
Replacement Airframe. Has the meaning set forth in Section 11.03 of
the Lease.
Replacement Engine. A General Electric CF6-80C2-D1F engine (or an
engine of the same or another manufacturer) of the same or of equal or greater
value, remaining useful life and utility as the Engine being replaced,
together with all Parts relating to such engine; provided, however, that if
such replacement engine is not a General Electric CF6-80C2-D1F engine, such
replacement engine must then be commonly used in the commercial aviation
industry on XxXxxxxxx Xxxxxxx MD-11 airframes.
Responsible Officer. With respect to the Owner Trustee (except for
purposes of the Trust Agreement in which case the definition of Responsible
Officer set forth in Section 3.10 of the Trust Agreement is applicable) or the
Indenture Trustee, any officer in its Corporate Trust Department), as the case
may be, designated by such Person to perform obligations under the Operative
Agreements, and with respect to any other party, any corporate officer or
(except in the case of the Owner Participant) other employee of a party who,
in the normal performance of his or her operational responsibilities, with
respect to the subject matter of any covenant, agreement or obligation of such
party pursuant to any Operative Agreement, would have responsibility for and
knowledge of such matter and the requirements of any Operative Agreement with
respect thereto.
S&P. Standard & Poor's Ratings Group.
Scheduled Delivery Date. The Delivery Date specified in the Delivery
Notice pursuant to Section 3.01 of the Participation Agreement.
SEC. The Securities and Exchange Commission of the United States and
any successor agencies or authorities.
Secured Obligations. Has the meaning specified in the Granting
Clause of the Indenture.
Securities Act. The Securities Act of 1933, as amended.
Series "A" or "Series A Certificates". Certificates issued and
designated as "Series A" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series A".
Series "B" or "Series B Certificates". Certificates issued and
designated as "Series B" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series B".
Series "C" or "Series C Certificates". Certificates issued and
designated as "Series C" under the Indenture, in the Principal Amount and
maturities and bearing interest as specified in Exhibit B to the Indenture
under the heading "Series C".
Series Supplements. The Series Supplement 1997-1-A, the Series
Supplement 1997-1-B and the Series Supplement 1997-1-C, each dated the
Certificate Closing Date, between the Lessee and the Pass Through Trustee.
Sinking Fund Redemption Date. Has the meaning specified in Section
6.06 of the Indenture.
Sinking Fund Redemption Price. Has the meaning specified in Section
6.06 of the Indenture.
Special Aviation Counsel. Xxxxxxxxx, Xxxxxx & Xxxxxxxx.
Special Distribution Date. Has the meaning specified in Article I to
the Series Supplement.
Specified Investments. Shall mean (a) direct obligations of the
United States of America or obligations fully guaranteed by the United States
of America; (b) commercial paper rated A-1/P-1 by S&P and Xxxxx'x,
respectively or, if such ratings are unavailable, rated by any nationally
recognized rating organization in the United States equal to the highest
rating assigned by such rating organization; (c) investments in negotiable
certificates of deposit, time deposits, banker's acceptances, commercial paper
or other direct obligations of, or obligations guaranteed by, commercial banks
organized under the laws of the United States or of any political subdivision
thereof (or any U.S. branch of a foreign bank) with issuer ratings of at least
B/C by Thomson Bankwatch, having maturities no later than 90 days following
the date of such investment; (d) overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers; or
(e) overnight repurchase agreements with respect to the securities described
in clause (a) above entered into with an office of a bank or trust company
which is located in the United States of America or any bank or trust company
which is organized under the laws of the United States or any state thereof
and has capital, surplus and undivided profits aggregating at least $500
million.
SSB. State Street Bank and Trust Company of Connecticut, National
Association, a national banking association.
Stipulated Loss Value. As of any Stipulated Loss Value Determination
Date during the Basic Term, the amount determined by multiplying the Purchase
Price by the percentage set forth in Schedule III of the Lease under the
heading "Stipulated Loss Value Factor" opposite such date (as such Schedule
III may be adjusted from time to time as provided in Section 3.04 of the
Lease), and during any Renewal Term, the amount determined pursuant to Section
4.01(b) of the Lease. Notwithstanding any other provisions of the Lease, the
Participation Agreement or the Indenture, each Stipulated Loss Value for the
Aircraft shall be, under any circumstances and in any event, an amount,
together with the arrears portion of Basic Rent due and owing through the date
of payment of Stipulated Loss Value and not constituting an Excepted Payment,
at least sufficient to pay in full as of such date of payment the aggregate
unpaid principal amount of and accrued interest on the Certificates
outstanding on such date of payment. Subject to the immediately preceding
sentence, it is understood and agreed that the amounts set forth on Schedule
III of the Lease, for Stipulated Loss Value Determination Dates other than
Rent Payment Dates, fully reflect appropriate Basic Rent accruals and credits
of unearned Basic Rent as of such Stipulated Loss Value Determination Date
and, accordingly, no further accrual or credit shall be required whenever
Stipulated Loss Value is to be calculated with reference to any such date.
Stipulated Loss Value Determination Date. Each date set forth on
Schedule III of the Lease under the heading "Stipulated Loss Value Date."
Supplemental Rent. (a) All amounts, liabilities and obligations
which the Lessee assumes or agrees to perform or pay under the Lease or under
the Participation Agreement or Tax Indemnity Agreement or Ancillary Agreement
I or any other Operative Agreement to SSB, the Lessor, the Owner Participant,
the Indenture Trustee, the Subordination Agent, any Liquidity Provider or
others, including, without limitation, payments of Stipulated Loss Value, EBO
Price and amounts calculated by reference to Termination Value, and all
amounts required to be paid by Lessee under the agreements, covenants and
indemnities contained in the Lease or in the Participation Agreement or the
Tax Indemnity Agreement or any other Operative Agreement, but excluding Basic
Rent and (b) all amounts that the Owner Trustee is obligated to pay in
accordance with clause (b) of the last paragraph of Section 2.04 of the
Indenture.
Tax. Shall have the meaning set forth in Section 8.01(a) of the
Participation Agreement.
Tax Indemnity Agreement. The Tax Indemnity Agreement (Federal
Express Corporation Trust No. N584FE), dated as of February 1, 1998, between
the Lessee and the Owner Participant.
Term. The Basic Term and any Renewal Term unless the Lease is
terminated earlier pursuant to its terms.
Termination Date. A Rent Payment Date during the Basic Term that is
on or after the seventh anniversary of the Delivery Date in the case of
Article 10 of the Lease, and in the case of (i) Section 4.02(a)(A) of the
Lease the Rent Payment Date falling on July 15, 2011 or January 15, 2014, as
the case may be, (ii) Section 4.02(a)(D) or (E) of the Lease, a Rent Payment
Date that is on or after the seventh anniversary of the Delivery Date and
(iii) Section 4.02(a)(F) of the Lease, January 15, 2016.
Termination Value. As of any Termination Date, the amount determined
by multiplying the Purchase Price by the percentage set forth in Schedule IV
of the Lease under the heading "Termination Value Factor" opposite such
Termination Date (as such Schedule IV may be adjusted from time to time as
provided in Section 3.04 of the Lease). Notwithstanding any other provisions
of the Lease, the Participation Agreement or the Indenture, each Termination
Value shall be, under any circumstances and in any event, an amount, together
with the arrears portion of Basic Rent due and owing through the date of
payment of any amount calculated by reference to Termination Value and not
constituting an Excepted Payment, at least sufficient to pay in full as of
such date of payment the aggregate unpaid principal amount of and accrued
interest on the Certificates outstanding on such date of payment. Subject to
the immediately preceding sentence, it is understood and agreed that the
amounts set forth on Schedule IV of the Lease, for dates other than Rent
Payment Dates, fully reflect appropriate Basic Rent accruals and credits of
unearned Basic Rent and, accordingly, no further accrual or credit shall be
required whenever Termination Value is to be calculated with reference to any
such date.
Transaction Costs. Those costs and expenses set forth in Section
10.01(a) of the Participation Agreement.
Transportation Code. Title 49 of the United States Code, as amended
and in effect on the date of the Lease or as subsequently amended, or any
successor or substituted legislation at the time in effect and applicable, and
the regulations promulgated pursuant thereto.
Treasury Yield. At the time of determination with respect to any
Certificate, the interest rate (expressed as a semi-annual equivalent and as a
decimal and, in the case of United States Treasury bills, converted to a bond
equivalent yield) determined to be the per annum rate equal to the semi-annual
yield to maturity for United States Treasury securities maturing on the
Average Life Date on such Certificate and trading in the public securities
markets either as determined by interpolation between the most recent weekly
average yield to maturity for two series of United States Treasury securities,
trading in public securities markets, (i) one maturing as close as possible to,
but earlier than, the Average Life Date of such Certificate and (ii) the other
maturing as close as possible to, but later than, the Average Life Date of
such Certificate. In each case as published in the most recent H.15(519) or,
if a weekly average yield to maturity for United States Treasury securities
maturing on the Average Life Date of such Certificate is reported on the most
recent H.15 (519), such weekly average yield to maturity as published in such
H.15(919). "H.15(519)" means the weekly statistical release designated as
such, or any successor publication, published by the Board of Governors of the
Federal Reserve System. The date of determination of a Make-Whole Premium
will be the third Business Day prior to the applicable prepayment date and the
"most recent H.15(519)" means the H.15(519) published prior to the close of
business on the third Business Day prior to the applicable prepayment date.
Trust Agreement. The Trust Agreement (Federal Express Corporation
Trust No. N584FE), dated as of May 1, 1997, as amended and restated as of
February 1, 1998, between the Owner Participant and the Owner Trustee in its
individual capacity.
Trust Estate. The Lessor's Estate.
Trust Indenture Act. The Trust Indenture Act of 1939, as amended.
Trust Indenture Estate. All estate, right, title and interest of the
Indenture Trustee in and to any of the property, rights, interests and
privileges granted to the Indenture Trustee pursuant to the Granting Clause of
the Indenture, other than Excepted Payments and any and all other rights of
the Owner Trustee or the Owner Participant expressly reserved to the Owner
Trustee or the Owner Participant pursuant to the Indenture.
UCC. Uniform Commercial Code.
Underwriters. Xxxxxx Xxxxxxx & Co. Incorporated, First Chicago
Capital Markets, Inc., Xxxxxxx, Sachs & Co. and X.X. Xxxxxx & Co.
Underwriting Agreement. The Underwriting Agreement dated May 22, 1997
among the Lessee and the Underwriters.
United States, U.S. or US. The United States of America.
U.S. Air Carrier. Any United States air carrier as to which there is
in force a certificate issued pursuant to Section 41102(a) or Section 41103 of
the Transportation Code, and as to which there is in force an air carrier
operating certificate issued pursuant to Chapter 447 of the Transportation
Code and Part 121 of the regulations under such Transportation Code, for
aircraft capable of carrying ten (10) or more individuals or 6,000 pounds or
more of cargo, or which may operate as an air carrier by certification or
otherwise under any successor or substitute provision thereof or in absence
thereof.
U.S. Person. A Person described in Section 7701(a)(30) of the Code.
Warranty Xxxx of Sale. The full warranty xxxx of sale covering the
Aircraft (and specifically referring to each Engine) executed by the Lessee,
as seller in favor of the Owner Trustee, as buyer, and to be dated the
Delivery Date.
SCHEDULE II
BASIC RENT
(As a Percentage of Purchase Price)
Rent
Payment
Date Advance Arrears
------- ------- -------
[On each Payment Date, Lessee will pay as Basic Rent an amount that will be at
least sufficient to pay in full, as of such Payment Date, the aggregate unpaid
principal amount of due and unpaid installments on the Certificates
outstanding on such Payment Date, together with the accrued and unpaid
interest thereon.]
SCHEDULE III
STIPULATED LOSS VALUES
Stipulated Loss
Date Value Factor
---- ---------------
[Stipulated Loss Value will be an amount at least sufficient to pay in full,
as of the date of payment thereof, the aggregate unpaid principal amount of
the Certificates outstanding on such date of payment, together with the
accrued and unpaid interest thereon.]
SCHEDULE IV
TERMINATION VALUES
Termination Termination
Date Value Factor
----------- ------------
[Termination Value will be an amount at least sufficient to pay in full, as of
the date of payment thereof, the aggregate unpaid principal amount of the
Certificates outstanding on such date of payment, together with the accrued
and unpaid interest thereon.]
SCHEDULE V
ADDITIONAL PURCHASE OPTION PROVISIONS
[Intentionally Left Blank As Containing
Confidential Financial Information]
Exhibit A
to
Lease Agreement
---------------
THE INTEREST OF LESSOR UNDER THIS LEASE SUPPLEMENT
NO. __ IS SUBJECT TO A SECURITY INTEREST
LEASE SUPPLEMENT NO. __
(Federal Express Corporation Trust No. N584FE)
LEASE SUPPLEMENT NO. __ (Federal Express Corporation Trust No.
N584FE), dated _________, ____, between STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, a national banking association, not in its
individual capacity, but solely as Owner Trustee under the Trust Agreement
(Federal Express Corporation Trust No. N584FE) dated as of May 1, 1997, as
amended and restated as of February 1, 1998 (the "Lessor"), and FEDERAL
EXPRESS CORPORATION, a Delaware corporation (the "Lessee").
W I T N E S S E T H :
WHEREAS, the Lessor and the Lessee have entered into that certain
Lease Agreement (Federal Express Corporation Trust No. N584FE) dated as of May
1, 1997, as amended and restated as of February 1, 1998 (the "Lease", the
defined terms in the Lease being used in this Lease Supplement with the same
meaning as in the Lease), which provides for the execution and delivery of a
Lease Supplement, substantially in the form of this Lease Supplement No. __,
for the purpose of leasing under the Lease the aircraft and engines described
below ("Aircraft") as and when delivered by the Lessor to the Lessee in
accordance with the terms of the Lease;
WHEREAS, the Lease relates to the Aircraft;
WHEREAS, a counterpart of the Lease is attached to and made a part of
this Lease Supplement, and this Lease Supplement, together with such
attachment, is being filed for recordation on this date with the FAA as one
document.
NOW, THEREFORE, for and in consideration of the premises and other
good and sufficient consideration, the Lessor and the Lessee agree as follows:
Section 1. Delivered Aircraft. The Lessor hereby delivers and
leases to the Lessee under the Lease, and the Lessee hereby accepts and leases
from the Lessor under the Lease, the following described XxXxxxxxx Xxxxxxx
MD-11F Aircraft (the "Delivered Aircraft"), which Delivered Aircraft as of the
date of this Lease Supplement consists of the following:
(a) XxXxxxxxx Xxxxxxx MD-11F Airframe; U.S. Registration Number
______; Manufacturer's Serial No. _____; and
(b) Three (3) General Electric CF6-80C2-D1F Engines bearing,
respectively, Manufacturer's Serial Nos. _______, _______ and _______ (each
of which engines has 750 or more rated takeoff horsepower or the equivalent
of such horsepower).
Section 2. Delivery Date. The Delivery Date of the Delivered
Aircraft is the date of this Lease Supplement.
Section 3. Purchase Price. The Purchase Price of the Delivered
Aircraft shall be the amount set forth in Schedule II to the Participation
Agreement.
Section 4. Term. The Term for the Delivered Aircraft shall commence
on the Delivery Date, and shall terminate on __________________, unless
earlier terminated or extended pursuant to the terms of the Lease.
Section 5. Rent. The Lessee hereby agrees to pay the Lessor Rent
for the Delivered Aircraft throughout the Term thereof in accordance with the
terms and provisions of the Lease.
Section 6. Lessee's Acceptance of Delivered Aircraft. The Lessee
hereby confirms to the Lessor that the Delivered Aircraft has been duly marked
in accordance with Section 7.03 of the Lease and that the Lessee has accepted
the Delivered Aircraft for all purposes hereof and of the Lease, and as being
free and clear of all Liens except Lessor's Liens. Such acceptance by the
Lessee shall be without prejudice to any rights of the Lessor or the Lessee
against the Manufacturer, the Engine Manufacturer or any vendor of equipment
included in the Aircraft.
Section 7. Incorporation of Lease By Reference. All the provisions
of the Lease are hereby incorporated by reference in this Lease Supplement to
the same extent as if fully set forth in this Lease Supplement.
Section 8. Governing Law. THIS LEASE SUPPLEMENT SHALL IN ALL
RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE BUT WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS, AND
IS BEING DELIVERED IN THE STATE OF NEW YORK.
Section 9. Agreement as Chattel Paper. To the extent that this Lease
Supplement constitutes chattel paper (as such term is defined in the Uniform
Commercial Code as in effect in any applicable jurisdiction), no security
interest in this Lease Supplement may be created through the transfer or
possession of any counterpart other than the original chattel-paper
counterpart, which shall be the counterpart containing the receipt executed by
the Indenture Trustee on its signature page.
Section 10. Counterparts. This Lease Supplement may be executed in
any number of counterparts, each of which shall be an original (except that
only the counterpart bearing the receipt executed by Indenture Trustee shall
be the original for purposes of perfecting a security interest therein as
chattel paper under the Uniform Commercial Code), but all of which taken
together shall constitute one and the same instrument and any of the parties
hereto may execute this Lease Supplement by signing any such counterpart.
IN WITNESS WHEREOF, the Lessor and the Lessee have each caused this
Lease Supplement to be duly executed as of the date first above written.
LESSOR: STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Owner Trustee
By: _______________________________________________
Name: Xxxx X. Xxxxx
Title: Vice President
LESSEE: FEDERAL EXPRESS CORPORATION
By: _______________________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Vice President and Treasurer
Receipt of this original counterpart of the Lease Supplement is hereby
acknowledged on this __ day of _________ 199_.
Indenture Trustee: FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Indenture Trustee
By: _____________________________________________
Name: Xxxx X. Xxxxxx
Title: Vice President
