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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 20-F/A
AMENDMENT NO. 2 TO THE ANNUAL REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2005
Commission File Number: 1-14728
Lan Airlines S.A.
(Exact name of registrant as specified in its charter)
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| Lan Airlines S.A. | |
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Republic of Chile |
| (Translation of registrant’s name into English) | |
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(Jurisdiction of incorporation or organization) |
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Presidente Riesco 5711 Piso 20
Las Condes,
Santiago, Chile
(Address of principal executive offices)
Securities registered or to be registered pursuant to Section 12(b) of the Act:
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| Title of each class: | |
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Name of each exchange on which registered: |
| American Depositary Shares (as evidenced by
American Depositary Receipts), each representing five shares of Common Stock, without par value |
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New York Stock Exchange |
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Securities registered or to be registered pursuant to Section 12(g) of the Act:
None
Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act:
None
Indicate the number of outstanding shares of each of the issuer’s classes of capital or common stock as of the close of the period covered by the annual report: 318,909,090
Indicate by check mark if the registrant is a well-known seasoned issuer, as defines in Rule 405 of the Securities Act.
Yes ![[X]](https://cdn.kscope.io/e45a60eb20cbab785542bb8d3853bc92-xbox.gif){kind=small}
No ![[ ]](https://cdn.kscope.io/e45a60eb20cbab785542bb8d3853bc92-ebox.gif){kind=small}
If this report is an annual or transition report, indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934.
Yes No
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.
Yes No
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, or a non-accelerated filer. See definition of ‘‘accelerated filer and large accelerated filer’’ in Rule 12b-2 of the Exchange Act. (Check one):
Large Accelerated filer Accelerated filer Non-Accelerated filer
Indicate by check mark which financial statement item the registrant has elected to follow:
Item 17 Item 18
If this is an annual report, indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).
Yes No
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References to ‘‘we’’ and ‘‘our’’ in this amendment to the annual report on Form 20-F are to Lan Airlines S.A. and its consolidated subsidiaries.
EXPLANATORY NOTE
This Amendment No. 2 (this ‘‘Amendment’’) to our annual report on Form 20-F for the fiscal year ended December 31, 2005, filed on June 30, 2006 (the ‘‘Form 20-F’’), as amended by Amendment No. 1 filed on April 23, 2007, is being filed solely to add as an exhibits: (i) agreements we entered into with Airbus S.A.S. amending the purchase agreement we entered into in 1998 with Airbus S.A.S. and providing us with the option of purchasing 15 additional aircraft in the future; (ii) agreements we entered into with The Boeing Company related to the purchase of 15 Boeing aircraft; and (iii) agreements we entered into with GE Commercial Aviation Services Limited and Wells Fargo Bank Northwest N.A., as owner trustee, related to the lease of two Boeing aircraft. In this Amendment, we have included these agreements as Exhibits 4.1.1, 4.2.1 and 4.3, respectively, and accordingly, we also have re vised the Exhibit List in Item 19. We note that portions of Exhibits 4.1.1, 4.2.1 and 4.3 have been omitted pursuant to a request for confidential treatment and that such omitted portions have been filed separately with the Securities and Exchange Commission.
Except as described above, no other change has been made to the Form 20-F. The filing of this Amendment should not be understood to mean that any statements contained herein are true or complete as of any date subsequent to June 30, 2006.
PART III
ITEM 19. EXHIBITS
Documents filed as exhibits to this annual report.
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| Exhibit No. | |
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Description |
| 1.1 | |
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By-laws of Lan Airlines S.A. (incorporated by reference to our annual report on Form 20-F (File No. 001-14728) filed on June 30, 2005). |
| 2.1 | |
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Amended and Restated Deposit Agreement among LanChile, The Bank of New York, and all registered holders from time to time of any American Depositary Receipts, including the form of American Depositary Receipt (incorporated by reference to our annual report on Form 20-F (File No. 001-14728) filed on June 14, 2004). |
| 2.2 | |
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Foreign Investment Contract among the Central Bank of Chile, LanChile and Citibank, N.A., as depositary, relating to the foreign exchange treatment of holders of ADSs (incorporated by reference to our annual report on Form 20-F (File No. 001-14728) filed on June 14, 2004). |
| 2.3 | |
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Foreign Investment Contract Assignment Agreement among the Central Bank of Chile, LanChile, Citibank N.A., as assignor, and The Bank of New York, as assignee, relating to the foreign exchange treatment of holders of ADSs (incorporated by reference to our annual report on Form 20-F (File No. 001-14728) filed on June 14, 2004). |
| 2.4 | |
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Right of First Refusal Agreement among Inversiones Santa Cecilia S.A., Bancard S.A., Inversiones Costa Verde, S.A., Inmobiliaria e Inversiones Asturias S.A., Inversiones Aéreas CGP S.A., Inversiones Aéreas CGP DOS S.A. (incorporated by reference to our annual report on Form 20-F (File No. 001-14728) filed on June 14, 2004). |
| 2.5 | |
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Supplement to Right of First Refusal Agreement among Inversiones Costa Verde Limitada y Compañía en Comandita por Acciones, Inversiones Santa Cecilia S.A., Axxion S.A., Inversiones Aéreas CGP S.A. and Inversiones Aéreas CGP DOS S.A. (incorporated by reference to our annual report on Form 20-F (File No. 001-14728) filed on June 30, 2005). |
| 2.6 | |
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Joint Action Agreement among Inversiones Costa Verde Limitada y Compañía en Comandita por Acciones, Inversiones Santa Cecilia S.A., and Axxion S.A. (incorporated by reference to our annual report on Form 20-F (File No. 001-14728) filed on June 30, 2005). |
| 4.1 | |
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Purchase Agreements between Lan Chile S.A. and Airbus Industrie relating to Airbus A320-family aircraft and Airbus A340 series aircraft (incorporated by reference to our annual report on Form 20-F (File No. 001-14728) filed on June 24, 2001 and portions of which have been omitted pursuant to a request for confidential treatment). |
| 4.1.1 | |
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Amendments No. 2 and 3, Letter Agreements No. 1, 2, 3, 4, 5, 6A, 6B, 7, 8 to Amendment No. 2, Side Letters to Amendment No. 2 and Side Letter to Amendment No. 3 to the Second A320F Purchase Agreement dated March 20, 1998 as amended and restated, between Lan Airlines S.A. (formerly known as Lan Chile S.A.) and Airbus S.A.S. (as successor to Airbus Industrie).* |
| 4.1.2 | |
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Amendment No. 3 to the Second A320 Family Purchase Agreement between Lan Airlines S.A. and Airbus S.A.S. dated as of March 6, 2007.* |
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| Exhibit No. | |
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Description |
| 4.2 | |
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Purchase Agreement No. 2126 between Lan Chile S.A. and The Boeing Company as amended and supplemented, relating to Model 767-316ER, Model 767-38EF, and Model 767-316F Aircraft (incorporated by reference to our amended annual report on Form 20-F (File No. 001-14728) filed on December 21, 2004 and portions of which have been omitted pursuant to a request for confidential treatment). |
| 4.2.1 | |
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Supplemental Agreements No. 16, 17, 18, 19, 20, 21 and 22 to the Purchase Agreement No. 2126 between Lan Airlines (formerly known as Lan Chile S.A.) and The Boeing Company, relating to Model 767-316ER, Model 767-38EF, and Model 767-316F Aircraft, dated as of January 30, 1998.* |
| 4.2.2 | |
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Supplemental Agreement No. 23 to the Purchase Agreement No. 2126 between Lan Airlines S.A. and The Boeing Company dated as of December 14, 2006.* |
| 4.3 | |
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Aircraft Lease Common Terms Agreement between GE Commercial Aviation Services Limited and Lan Cargo S.A., dated April 30, 2007; Aircraft Lease Agreements between Wells Fargo Bank Northwest N.A., as owner trustee, and Lan Cargo S.A., dated April 30, 2007.* |
| 8.1 | |
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List of subsidiaries of the Company. |
| 12.1 | |
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Certification of Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. |
| 12.2 | |
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Certification of Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. |
| 13.1 | |
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Certifications of Chief Financial Officer and Chief Executive Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. |
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| * | Portions of these documents have been omitted pursuant to a request for confidential treatment. Such omitted portions have been filed separately with the Securities and Exchange Commission. |
SIGNATURES
The registrant hereby certifies that it meets all of the requirements for filing on Form 20-F and that it has duly caused and authorized the undersigned to sign this amendment to its annual report on its behalf.
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Lan Airlines S.A. |
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/s/ Alejandro de la Fuente Goic |
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Name: Alejandro de la Fuente Goic |
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Title: Chief Financial Officer |
Date: May 7, 2007
EXHIBIT INDEX TO AMENDMENT NO. 2
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| Exhibit No. | |
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Description |
| 4.1.1 | |
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Amendments No. 2 and 3, Letter Agreements No. 1, 2, 3, 4, 5, 6A, 6B, 7, 8 to Amendment No. 2, Side Letters to Amendment No. 2 and Side Letter to Amendment No. 3 to the Second A320F Purchase Agreement dated March 20, 1998 as amended and restated, between Lan Airlines S.A. (formerly known as Lan Chile S.A.) and Airbus S.A.S. (as successor to Airbus Industrie).* |
| 4.2.1 | |
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Supplemental Agreements No. 16, 17, 18, 19, 20, 21 and 22 to the Purchase Agreement No. 2126 between Lan Airlines (formerly known as Lan Chile S.A.) and The Boeing Company, relating to Model 767-316ER, Model 767-38EF, and Model 767-316F Aircraft, dated as of January 30, 1998.* |
| 4.3 | |
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Aircraft Lease Common Terms Agreement between GE Commercial Aviation Services Limited and Lan Cargo S.A., dated April 30, 2007; Aircraft Lease Agreements between Wells Fargo Bank Northwest N.A., as owner trustee, and Lan Cargo S.A., dated April 30, 2007.* |
| 12.1 | |
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Certification of Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. |
| 12.2 | |
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Certification of Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. |
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| * | Portions of these documents have been omitted pursuant to a request for confidential treatment. Such omitted portions have been filed separately with the Securities and Exchange Commission. |
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Clause
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Title
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1.
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SCOPE OF
THE AMENDMENT |
5
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2.
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AMENDMENT
No. 2 AIRCRAFT |
5
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3.
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[***]
CERTAIN GENERAL TERMS AND CONDITIONS OF THE SECOND A320 FAMILY PURCHASE
AGREEMENT |
5
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3.1
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[***]
Aircraft Specifications (Clause 1 of the Purchase Agreement) |
5
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3.2
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[***]
Aircraft Basic Prices (Clause 3 of the Purchase Agreement) |
8
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3.3
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[***]
Aircraft
Price Revision (Clause 4 of the Purchase Agreement) |
10
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3.4
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[***]
Payment Terms (Clause 5 of the Purchase Agreement) |
11
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3.5
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Update
of Delivery Schedule |
14
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3.6
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[***]
Training (Clause 16 of the Purchase Agreement) |
15
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4.
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EFFECT
OF THE AMENDMENT |
18
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ANNEX
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TITLES
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Annex
A |
SPECIFICATION
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Appendix
1 – A318 SCN
List |
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Appendix
2 – A319 SCN List |
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Appendix
3 – A320 SCN List |
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Annex
B |
Appendix
1 SELLER PRICE REVISION FORMULA |
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Appendix
2 IAE PRICE REVISION FORMULA |
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Appendix
3 CFM PRICE REVISION FORMULA |
| 1. |
SCOPE
OF THE AMENDMENT |
| 2. |
AMENDMENT
No. 2 AIRCRAFT |
| 3. |
[***]
CERTAIN GENERAL TERMS AND CONDITIONS OF THE SECOND A320 FAMILY PURCHASE
AGREEMENT |
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3.1
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[***]
Aircraft Specifications
(Clause 1 of the Purchase Agreement) |
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1.2.1
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The
Aircraft shall be manufactured in accordance with: |
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For
the A318-100,
the Standard Specification Document P.000.01000, Issue 2, dated January 31,
2005 amended to include the following design weights: MTOW: 63t / MLW: 57.5t /
MZFW: 54.5t, a copy of which has been initialed on its effective pages for the
purpose of identification by or on behalf of the parties and is annexed hereto
as Exhibit “A” (as amended by Annex A of Amendment No.
2). |
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For
the A319-100,
the Standard Specification Document N°
J.000.01000, Issue 5 dated January 31st,
2005 with the following design weights: MTOW: 75.5 tons, MLW: 62.5 tons, MZFW:
58.5 tons, a copy of which has been initialed on its effective pages for the
purpose of identification by or on behalf of the parties and is annexed hereto
as Exhibit “A” (as amended by Annex A of Amendment No.
2). |
| - |
For
the A320-200,
the Standard Specification Document N°
D.000.02000, Issue 6 dated January 31st
2005 with the following design weights: MTOW: 77 tons, MLW: 64.5 tons,
MZFW: 61 tons, a copy of which has been initialed on its effective pages for
the purpose of identification by or on behalf of the parties and is annexed
hereto as Exhibit “A”(as amended by Annex A of Amendment No.
2). |
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3.2
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[***]
Aircraft Basic Prices
(Clause 3 of the Purchase Agreement) |
| 3.1 |
Aircraft
Basic Price |
| 3.1.1 | A318 Aircraft |
| (i) |
[***]
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| (ii) | [***] |
| 3.1.2 |
A319
Aircraft / A320 Aircraft |
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(i)
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[***]
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| (ii) | [***] |
| 3.1.2.1 |
Airframe
Basic Price |
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(i)
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[***]
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| (ii) | [***] |
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3.1.2.2
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Propulsion
Systems Basic Price |
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3.3
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[***]
Aircraft Price Revision
(Clause 4 of the Purchase Agreement) |
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3.4
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[***]
Payment Terms (Clause 5 of the Purchase Agreement) |
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3.4.1
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With
respect to [***]
Aircraft and except as set forth in Paragraph 3.4.2 below, Clause 5 of the
Purchase Agreement shall continue to apply with the following
changes: |
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III.
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[***].
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3.4.2
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With
respect to the A318 Aircraft only, the
Predelivery Payment schedule set forth in Clause 5.2.1.2 of the Purchase
Agreement shall be
cancelled and replaced by the following Predelivery
Payment schedule:
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Due
Date Of Payments |
Percentage
Of Predelivery
Payment
Reference Price |
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Upon
signature of this Agreement |
[***]
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On
the first day of each of the following months
prior
to the Scheduled Delivery Month |
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[***]
months |
[***]
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[***]
months |
[***]
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[***]
months |
[***]
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____________________________
Total
Payment prior to Delivery |
[***]
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3.5
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Update
of Delivery Schedule |
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Aircraft
No |
Aircraft
Origin |
Delivery
Date |
Aircraft
Type |
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1
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Backlog
Aircraft |
[***]
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A319
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2
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Backlog
Aircraft |
[***]
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A319
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3
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Backlog
Aircraft |
[***]
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A319
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4
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Backlog
Aircraft |
[***]
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A319
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5
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Backlog
Aircraft |
[***]
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A319
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6
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Amendment
No. 2 Aircraft |
[***]
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A319
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7
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Amendment
No. 2 Aircraft |
[***]
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A318
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8
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Amendment
No. 2 Aircraft |
[***]
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A318
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9
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Amendment
No. 2 Aircraft |
[***]
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A318
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10
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Amendment
No. 2 Aircraft |
[***]
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A318
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11
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Amendment
No. 2 Aircraft |
[***]
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A318
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12
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Amendment
No. 2 Aircraft |
[***]
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A318
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13
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Amendment
No. 2 Aircraft |
[***]
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A318
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14
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Amendment
No. 2 Aircraft |
[***]
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A318
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15
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Amendment
No. 2 Aircraft |
[***]
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A318
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16
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Amendment
No. 2 Aircraft |
[***]
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A318
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17
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Amendment
No. 2 Aircraft |
[***]
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A320
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18
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Amendment
No. 2 Aircraft |
[***]
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A320
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19
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Amendment
No. 2 Aircraft |
[***]
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A320
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20
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Amendment
No. 2 Aircraft |
[***]
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A320
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21
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Amendment
No. 2 Aircraft |
[***]
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A318
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22
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Amendment
No. 2 Aircraft |
[***]
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A318
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23
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Amendment
No. 2 Aircraft |
[***]
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A318
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24
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Amendment
No. 2 Aircraft |
[***]
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A318
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25
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Amendment
No. 2 Aircraft |
[***]
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A318
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26
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Amendment
No. 2 Aircraft |
[***]
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A318
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27
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Amendment
No. 2 Aircraft |
[***]
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A318
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28
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Amendment
No. 2 Aircraft |
[***]
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A318
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29
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Amendment
No. 2 Aircraft |
[***]
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A318
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30
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Amendment
No. 2 Aircraft |
[***]
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A318
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3.6
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[***]
Training (Clause 16 of the Purchase Agreement) |
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16.3.1
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Flight
Crew Training Course |
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16.3.1.1
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The
Seller shall perform a flight crew training course program (standard transition
course or a cross crew qualification program as applicable) for a total of
[***] of the
Buyer’s flight crews, each of which shall consist of one (1) captain and
one (1) first officer. The training manual used shall be the Seller’s
Flight Crew Operating Manual (FCOM), except for base Flight training, for which
the Buyer’s customized FCOM shall be used. |
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16.3.1.2
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If a
Base Flight Training is required, the Buyer shall use its delivered Aircraft,
or any other aircraft operated by the Buyer, for any base flight training,
which shall not exceed [***] minutes
per pilot, according to the related Airbus training course definition. In the
event of it being necessary to ferry the Buyer’s delivered Aircraft to the
location where the base flight training shall take place, the additional flight
time required for the ferry flight to and/or from the base training field shall
not be deducted from the base flight training allowance. |
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However,
if the base flight training is performed outside of the zone where the Seller
usually performs such training, the ferry flight to the location where the base
flight training shall take place shall be performed by a crew composed of the
Seller’s and/or the Buyer’s qualified pilots, in accordance with the
Aviation Authorities’ regulations related to the place of performance of
the base flight training. |
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To
assist the Buyer with initial operating experience for its new operation in
Argentina, the Seller shall provide to the Buyer pilot instructor(s) free of
charge for a period of [***] pilot
instructor months (number of pilots present at the same time to be mutually
agreed). The Buyer shall reimburse the expenses for each such instructor in
accordance with Clause 16.2.2. Additional pilot instructors can be provided at
the Buyer’s expense and upon conditions to be mutually agreed
upon. |
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16.3.4
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Practical
Training on Aircraft |
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If the
practical training does not need to be covered by an EASA - Part 147 (or
equivalent) certificate, the Seller may assist the Buyer in organizing such
practical training on aircraft, at the Buyer’s expense. |
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In the
event of the Buyer requiring a full EASA - Part 147 certificate from the
Seller, the practical training on aircraft shall be conducted by the Seller, at
the Buyer’s expense, in a EASA - Part 145 facility approved and selected
by the Seller. |
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In the
event of the Buyer requiring such practical training to be conducted at the
Buyer’s EASA - Part 145 (or equivalent) approved facilities, such training
shall be subject to prior approval by the Seller of the facilities at which the
training is to be conducted. |
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The
provision of an instructor by the Seller for the practical training shall be
deducted from the trainee days allowance defined in Clause 16.3.3 above,
subject to the conditions detailed in Clause 16.3.7 below. |
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The
Buyer shall reimburse the expenses for said instructor(s) in accordance with
Clause 16.2.2. |
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16.3.5
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Transition
Type Rating Instructor (TRI) Course |
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16.3.6
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During
any and all flights performed in accordance with this Clause 16.3, the Buyer
shall bear full responsibility for the aircraft upon which the flight is
performed, including but not limited to any required maintenance, all expenses
such as fuel, oil or landing fees and the provision of insurance in line with
Clause 16.6. |
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Trainee
days are counted as follows: |
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-
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For
instruction at the Seller’s Training Centers or Affiliated Training
Centers : one (1) day of instruction for one (1) trainee equals one (1) trainee
day. The number of trainees originally registered at the beginning of the
course shall be counted as the number of trainees to have taken the
course. |
|
-
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For
instruction outside of the Seller’s Training Centers or Affiliated
Training Centers : one (1) day of instruction by one (1) Seller instructor
equals the actual number of trainees attending the course or a minimum of
[***] trainee
days. |
|
-
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For
practical training, one (1) day of instruction by one (1) Seller instructor
equals the actual number of trainees attending the course or a minimum of
[***] trainee
days. |
|
-
|
In the
event of training being provided outside of t he Seller’s Training Centers
or Affiliated Training Centers specifically at the Seller’s request,
Paragraph 3.1 hereabove shall be applicable to the trainee days accounting for
such training. |
|
Upon the
Buyer’s request, the Seller shall provide to the Buyer the list of the
maintenance and overhaul training courses (the “Supplier Training
Catalog”) provided by major Suppliers and the applicable Propulsion
Systems Manufacturer on their products. |
|
For and
on behalf of |
For and
on behalf of |
|
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LAN
AIRLINES S.A. |
AIRBUS
S. A. S. |
|
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Name
: |
Name :
|
|
|
Title
: |
Title :
|
| ANNEX A |
STANDARD
SPECIFICATION |
| ANNEX A |
STANDARD
SPECIFICATION |
| ANNEX A |
STANDARD
SPECIFICATION |
| ANNEX A |
STANDARD
SPECIFICATION |
| ANNEX A |
STANDARD
SPECIFICATION |
| ANNEX A |
STANDARD
SPECIFICATION |
| ANNEX A |
STANDARD
SPECIFICATION |
| ANNEX B |
PRICE
REVISION FORMULA |
|
1
|
[***]
|
|
2
|
[***]
|
|
3
|
[***]
|
|
4
|
[***]
|
|
5
|
[***]
|
|
5.1
|
[***]
|
|
5.2
|
[***]
|
|
5.3
|
[***]
|
| ANNEX B |
PRICE
REVISION FORMULA |
| 1 |
[***]
|
| 2 |
[***]
|
| 3 |
[***]
|
| 4 |
[***]
|
|
5.
|
[***]
|
|
5.1
|
[***]
|
|
5.2
|
[***]
|
|
5.3
|
[***]
|
|
5.4
|
[***]
|
| ANNEX B |
PRICE
REVISION FORMULA |
| 1 |
[***]
|
| 2 |
[***]
|
| 3 |
[***]
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| 4 |
[***]
|
|
5
|
[***]
|
|
5.1
|
[***]
|
|
5.2
|
[***]
|
|
5.3
|
[***]
|
|
5.4
|
[***]
|
|
1.
|
SCOPE OF
THE AMENDMENT |
5
|
|
2.
|
[***] CERTAIN
TERMS AND CONDITIONS OF THE FIRST A320 FAMILY PURCHASE AGREEMENT
|
5
|
|
2.1
|
[***]
Aircraft
Specifications |
5
|
|
2.2
|
[***]
Aircraft Basic Prices |
7
|
|
2.3
|
[***] Aircraft
Price Revision |
9
|
|
2.4
|
[***] Payment
Terms |
10
|
|
2.5
|
[***]
|
11
|
|
3.
|
EFFECT
OF THE 2005 TRANSACTION ON SPECIFIC BACKLOG AIRCRAFT TERMS |
11
|
|
3.1
|
Backlog
Aircraft Delivery Schedule |
11
|
|
4.
|
EFFECT
OF THE AMENDMENT |
12
|
|
A
- |
The
Buyer and the Seller have entered into a Purchase Agreement dated March 20th,
1998 covering the purchase by the Buyer and the sale by the Seller of twenty
(20) A320 Family Aircraft designated N°1 to
N° 20 (the
“A320 Family Purchase Agreement”). |
|
B
- |
The
Buyer and the Seller have entered into an Amendment N° 1 to
the A320 Family Purchase agreement (the “Amendment N°1”)
on the 24th of
February 2000 [***].
|
|
C
- |
The
Buyer and the Seller have entered into a Deed of Amendment and Restatement of
the A320 Family Purchase Agreement (the “Deed of Amendment and Restatement
of the A320 Family Purchase Agreement”) dated the 2nd of
August 2000, splitting the A320 Family Purchase Agreement into the First A320
Family Purchase Agreement, which agreement, as previously amended by and
supplemented with all Exhibits, Appendices, Letter Agreements and amendments
(including Amendment No. 1 executed on January 31st 2002
and Amendment N° 2
executed on November 14TH 2003,
is hereinafter called the “the First A320 Family Purchase Agreement”
or the “Purchase Agreement”) and the Second A320 Family Purchase
Agreement. |
|
D
- |
In
conjunction with and subject to the execution by the Buyer of an amendment No.
2 to the Second A320 Family Purchase Agreement (the “ Amendment No. 2 to
the Second A320 Family Purchase Agreement”) of even date herewith covering
the purchase of certain additional A319 Aircraft, A320 Aircraft and A318
Aircraft (hereinafter referred to as the “2005 Transaction”) the
Buyer and the Seller now wish to enter into a new amendment to the Purchase
Agreement (hereinafter the “Amendment N°3”)
covering the modifications and the update of certain terms and conditions of
the Purchase Agreement. |
|
1.2.2
|
The
Specification may be modified or varied pursuant to the provisions of Clauses
2, 7 and 18. |
|
1.2.3
|
In
the event of any inconsistency between the Specification and any other part of
this Agreement, the latter shall prevail to the extent of such
inconsistency. |
|
1.3.1
|
Propulsion
Systems |
|
1.3.2
|
Propulsion
System Manufacturer Selection |
|
[***]
|
|
[***]
|
|
4.2.1.
|
The
Propulsion Systems Reference Price is subject to revision in accordance with
the Propulsion Systems Price Revision Formula up to and including the Aircraft
delivery date, as set forth in Appendix 2 of Annex B of Amendment No.
3. |
|
4.2.2
|
Modification
of Propulsion Systems Reference Price and Propulsion Systems Price Revision
Formula |
|
Contractual
Rank No |
Delivery
|
Aircraft
Type |
||
|
No
11 |
[***]
|
A319-100
|
||
|
No
12 |
[***]
|
A319-100
|
||
|
No
19 |
[***]
|
A319-100
|
||
|
No
20 |
[***]
|
A319-100
|
|
3.2
|
[***]
|
|
For and
on behalf of |
For and
on behalf of |
|
|
LAN
AIRLINES S.A. |
AIRBUS
S. A. S. |
|
|
Name
: |
Name :
|
|
|
Title
: |
Title :
|
|
|
2
|
[***]
|
|
5.1
|
[***]
|
|
5.3
|
[***]
|
|
Agreed
and Accepted |
Agreed
and Accepted |
||||
|
For and
on behalf of |
For and
on behalf of |
||||
|
LAN
AIRLINES S.A. |
AIRBUS
S.A.S. |
||||
|
By
|
:
|
____________________
|
By
|
:
|
____________________
|
|
Its
|
:
|
____________________
|
Its
|
:
|
____________________
|
|
Date
|
:
|
____________________
|
Date
|
:
|
____________________
|
|
Agreed
and Accepted |
Agreed
and Accepted |
||||
|
For and
on behalf of |
For and
on behalf of |
||||
|
LAN
AIRLINES S.A. |
AIRBUS
S.A.S. |
||||
|
By
|
:
|
____________________
|
By
|
:
|
____________________
|
|
Its
|
:
|
____________________
|
Its
|
:
|
____________________
|
|
Date
|
:
|
____________________
|
Date
|
:
|
____________________
|
|
Deadline
for Option Notice |
Maximum
No. of Option available |
Option
Period |
|
|
[***]
|
[***]
|
[***]
|
|
[***]
|
[***]
|
[***]
|
|
|
[***]
|
[***]
|
[***]
|
Within [***] days of the Buyer issuing any Option Notice, the Seller will notify the Buyer in writing whether it accepts each of the Buyer’s desired date or dates, as the case may be, for delivery of the relevant Option Aircraft and, if it does not accept any such date or dates, designate an alternative date or dates, being as close as reasonably possible (taking into account the Seller’s then prevailing industrial and commercial constraints) to the Buyer’s desired date or dates, as the case may be. If in relation to any Option Aircraft the Seller designates an alternative date for delivery the Buyer shall either notify the Seller that it accepts the same or enter into good faith discussions with the Seller with a view to agreeing such an alternative date acceptable to the Buyer and the Seller
|
Agreed
and Accepted |
Agreed
and Accepted |
||||
|
For and
on behalf of |
For and
on behalf of |
||||
|
LAN
AIRLINES S.A. |
AIRBUS
S.A.S. |
||||
|
By
|
:
|
____________________
|
By
|
:
|
____________________
|
|
Its
|
:
|
____________________
|
Its
|
:
|
____________________
|
|
Date
|
:
|
____________________
|
Date
|
:
|
____________________
|
|
Agreed
and Accepted |
Agreed
and Accepted |
||||
|
For and
on behalf of |
For and
on behalf of |
||||
|
LAN
AIRLINES S.A. |
AIRBUS
S.A.S. |
||||
|
By
|
:
|
By
|
:
|
||
|
Its
|
:
|
Its
|
:
|
||
|
Date
|
:
|
||||
|
Agreed
and Accepted |
Agreed
and Accepted |
||||
|
For and
on behalf of |
For and
on behalf of |
||||
|
LAN
AIRLINES S.A. |
AIRBUS
S.A.S. |
||||
|
By
|
:
|
____________________
|
By
|
:
|
____________________
|
|
Its
|
:
|
____________________
|
Its
|
:
|
____________________
|
|
Date
|
:
|
____________________
|
Date
|
:
|
____________________
|
|
2.1.1
|
[***]
|
|
2.1.7
|
[***]
|
|
2.1.7.1
|
[***]
|
|
2.1.8
|
[***]
|
|
2.1.8.1
|
[***]
|
|
2.1.9
|
[***]
|
|
2.1.9.1
|
[***]
|
|
2.1.10
|
[***]
|
|
2.1.10.1
|
[***]
|
|
2.1.11
|
[***]
|
|
2.1.11.1
|
[***]
|
|
2.2
|
[***]
|
|
2.2.1
|
[***]
|
|
2.2.2
|
[***]
|
|
2.2.2.1
|
[***]
|
|
2.2.3
|
[***]
|
|
2.2.3.1
|
[***]
|
|
2.2.4
|
[***]
|
|
2.2.4.1
|
[***]
|
|
2.2.5
|
[***]
|
|
2.2.5.1
|
[***]
|
|
2.2.6
|
[***]
|
|
2.2.6.1
|
[***]
|
|
2.2.7
|
[***]
|
|
2.2.7.1
|
[***]
|
|
2.2.8
|
[***]
|
|
2.2.8.1
|
[***]
|
|
2.2.9
|
[***]
|
|
2.2.9.1
|
[***]
|
|
2.2.10
|
[***]
|
|
2.2.10.1
|
[***]
|
|
2.2.11
|
[***]
|
|
2.2.11.1
|
[***]
|
|
2.3
|
[***]
|
|
2.3.1
|
[***]
|
|
2.3.2
|
[***]
|
|
2.4
|
[***]
|
|
2.4.1
|
[***]
|
|
2.4.2
|
[***]
|
|
2.5
|
[***]
|
|
2.5.1
|
[***]
|
|
2.5.2
|
[***]
|
|
2.6
|
[***]
|
|
2.6.1
|
[***]
|
|
2.6.2
|
[***]
|
|
3
|
[***]
|
|
3.1
|
[***]
|
|
3.1.1
|
[***]
|
|
3.1.2
|
[***]
|
|
3.1.3
|
[***]
|
|
3.1.4
|
[***]
|
|
3.1.5
|
[***]
|
|
3.1.6
|
[***]
|
|
3.1.7
|
[***]
|
|
3.2
|
[***]
|
|
3.2.1
|
[***]
|
|
3.2.2
|
[***]
|
|
3.2.3
|
[***]
|
|
3.2.4
|
[***]
|
|
3.2.5
|
[***]
|
|
3.2.6
|
[***]
|
|
3.2.7
|
[***]
|
|
3.3
|
[***]
|
|
3.3.1
|
[***]
|
|
3.3.2
|
[***].
|
|
3.3.3
|
[***]
|
|
3.3.4
|
[***]
|
|
3.3.5
|
[***]
|
|
3.3.6
|
[***]
|
|
3.3.7
|
[***]
|
|
3.4
|
[***]
|
|
3.4.1
|
[***]
|
|
3.4.2
|
[***]
|
|
3.4.3
|
[***]
|
|
3.4.4
|
[***]
|
|
3.4.5
|
[***]
|
|
3.4.6
|
[***]
|
|
3.4.7
|
[***]
|
|
3.5
|
[***]
|
|
4
|
[***]
|
|
5
|
[***]
|
|
5.1
|
[***].
|
|
5.2
|
[***]
|
|
5.2.1
|
[***]
|
|
5.2.2
|
[***]
|
|
5.3
|
[***]
|
|
5.4
|
[***]
|
|
5.5
|
[***]
|
|
6
|
[***]
|
|
6.1
|
[***]
|
|
6.2
|
[***]
|
|
6.3
|
[***]
|
|
6.4
|
[***]
|
|
6.5
|
[***]
|
|
6.6
|
[***]
|
|
6.7
|
[***]
|
|
6.8
|
[***]
|
|
7
|
[***]
|
|
7.1
|
[***]
|
|
7.2
|
[***]
|
|
8
|
[***]
|
|
9
|
[***]
|
|
9.1
|
[***]
|
|
9.1.1
|
[***]
|
|
9.1.2
|
[***]
|
|
9.1.3
|
[***]
|
|
9.2
|
[***]
|
|
9.3
|
[***]
|
|
9.4
|
[***]
|
|
Agreed
and Accepted |
Agreed
and Accepted |
|||||
|
LAN
AIRLINES S.A. |
AIRBUS
S.A.S. |
|||||
|
By:
|
By:
|
|||||
|
Its:
|
Its:
|
|||||
|
Date:
|
Date:
|
|||||
|
1
|
[***]
|
|
2
|
[***]
|
|
2.1
|
[***]
|
|
2.1.1
|
[***].
|
|
2.1.2
|
[***]
|
|
2.1.2.1
|
[***]
|
|
2.1.3
|
[***]
|
|
2.1.3.1
|
[***]
|
|
2.1.3.2 |
[***]
|
|
2.1.3.3
|
[***]
|
|
2.1.4
|
[***]
|
|
2.1.4.1
|
[***]
|
|
2.1.4.2
|
[***]
|
|
2.1.5
|
[***]
|
|
2.1.5.1
|
[***]
|
|
2.1.5.2
|
[***]
|
|
2.1.5.3
|
[***]
|
|
2.1.6
|
[***]
|
|
2.1.6.1
|
[***]
|
|
2.1.6.2
|
[***]
|
|
2.1.7
|
[***]
|
|
2.1.7.1
|
[***]
|
|
2.1.8
|
[***]
|
|
2.1.8.1
|
[***]
|
|
2.1.8.2
|
[***]
|
|
2.1.9
|
[***]
|
|
2.1.9.1
|
[***]
|
|
2.1.10
|
[***]
|
|
2.1.10.1
|
[***]
|
|
2.1.11
|
[***]
|
|
2.1.11.1
|
[***]
|
|
2.1.12
|
[***]
|
|
2.1.12.1
|
[***]
|
|
2.1.13
|
[***]
|
|
2.1.13.1
|
[***]
|
|
2.1.13.2
|
[***]
|
|
2.1.13.3
|
[***]
|
|
2.1.14
|
[***]
|
|
2.1.14.1
|
[***]
|
|
2.1.14.2
|
[***]
|
|
2.1.14.3
|
[***]
|
|
2.1.15
|
[***]
|
|
2.1.15.1
|
[***]
|
|
2.1.15.2
|
[***]
|
|
2.1.15.3
|
[***]
|
|
2.1.16
|
[***]
|
|
2.1.16.1
|
[***]
|
|
2.1.16.2
|
[***]
|
|
2.1.16.3
|
[***]
|
|
2.1.17
|
[***]
|
|
2.1.17.1
|
[***]
|
|
2.1.17.2
|
[***]
|
|
2.1.18
|
[***]
|
|
2.1.18.1
|
[***]
|
|
2.1.18.2
|
[***]
|
|
2.1.18.3
|
[***]
|
|
2.2
|
[***]
|
|
2.2.1
|
[***]
|
|
2.2.2
|
[***]
|
|
2.2.2.1
|
[***]
|
|
2.2.3
|
[***]:
|
|
2.2.3.1
|
[***]
|
|
2.2.3.2
|
[***]
|
|
2.2.3.3
|
[***]
|
|
2.2.4
|
[***]
|
|
2.2.4.1
|
[***]
|
|
2.2.4.2
|
[***]
|
|
2.2.5
|
[***]
|
|
2.2.5.1
|
[***]
|
|
2.2.5.2
|
[***]
|
|
2.2.5.3
|
[***]
|
|
2.2.6
|
[***]
|
|
2.2.6.1
|
[***]
|
|
2.2.6.2
|
[***]
|
|
2.2.7
|
[***]:
|
|
2.2.7.1
|
[***]
|
|
|
|
|
2.2.8
|
[***]
|
|
2.2.8.1
|
[***]
|
|
2.2.8.2
|
[***]
|
|
2.2.9
|
[***]
|
|
2.2.9.1
|
[***]
|
|
2.2.10
|
[***]:
|
|
2.2.10.1
|
[***]
|
|
2.2.11
|
[***]
|
|
2.2.11.1
|
[***]
|
|
2.2.12
|
[***]
|
|
2.2.12.1
|
[***]
|
|
2.2.13
|
[***]
|
|
2.2.13.1
|
[***]
|
|
2.2.13.2
|
[***]
|
|
2.2.13.3
|
[***]
|
|
2.2.14
|
[***]
|
|
2.2.14.1
|
[***]
|
|
2.2.14.2
|
[***]
|
|
2.2.14.3
|
[***]
|
|
2.2.15
|
[***]
|
|
2.2.15.1
|
[***]
|
|
2.2.15.2
|
[***]
|
|
2.2.15.3
|
[***]
|
|
2.2.16
|
[***]
|
|
2.2.16.1
|
[***]
|
|
2.2.16.2
|
[***]
|
|
2.2.16.3
|
[***]
|
|
2.2.17
|
[***]
|
|
2.2.17.1
|
[***]
|
|
2.2.17.2
|
[***]
|
|
2.2.18
|
[***]
|
|
2.2.18.1
|
[***]
|
|
2.2.18.2
|
[***]
|
|
2.2.18.3
|
[***]
|
|
2.3
|
[***]
|
|
2.3.1
|
[***]
|
|
2.3.2
|
[***]
|
|
2.4
|
[***]
|
|
2.4.1
|
[***]
|
|
2.4.2
|
[***]
|
|
2.5
|
[***]
|
|
2.5.1
|
[***]
|
|
2.5.2
|
[***]
|
|
2.6
|
[***]
|
|
2.6.1
|
[***]
|
|
2.6.2
|
[***]
|
|
3
|
[***]
|
|
3.1
|
[***]
|
|
3.1.1
|
[***]
|
|
3.1.2
|
[***]
|
|
3.1.3
|
[***]
|
|
3.1.4
|
[***]
|
|
3.1.5
|
[***]
|
|
3.1.6
|
[***]
|
|
3.1.7
|
[***]
|
|
3.2
|
[***]
|
|
3.2.1
|
[***]
|
|
3.2.2
|
[***]
|
|
3.2.3
|
[***]
|
|
3.2.4
|
[***]
|
|
3.2.5
|
[***]
|
|
3.2.6
|
[***]
|
|
3.2.7
|
[***]
|
|
3.3
|
[***]
|
|
3.3.1
|
[***]
|
|
3.3.2
|
[***]
|
|
3.3.3
|
[***]
|
|
3.3.4
|
[***]
|
|
3.3.5
|
[***]
|
|
3.3.6
|
[***]
|
|
3.3.7
|
[***]
|
|
3.4
|
[***]
|
|
3.4.1
|
[***]
|
|
3.4.2
|
[***]
|
|
3.4.3
|
[***]
|
|
3.4.4
|
[***]
|
|
3.4.5
|
[***]
|
|
3.4.6
|
[***]
|
|
3.4.7
|
[***]
|
|
3.5
|
[***]
|
|
3.5.1
|
[***]
|
|
3.5.2
|
[***]
|
|
3.5.3
|
[***]
|
|
3.5.4
|
[***]
|
|
3.5.5
|
[***]
|
|
3.5.6
|
[***]
|
|
3.5.7
|
[***]
|
|
3.6
|
[***]
|
|
3.6.1
|
[***]
|
|
3.6.2
|
[***]
|
|
3.6.3
|
[***]
|
|
3.6.4
|
[***]
|
|
3.6.5
|
[***]
|
|
3.6.6
|
[***]
|
|
3.6.7
|
[***]
|
|
3.7
|
[***]
|
|
3.7.1
|
[***]
|
|
3.7.2
|
[***]
|
|
3.7.3
|
[***]
|
|
3.7.4
|
[***]
|
|
3.7.5
|
[***]
|
|
3.7.6
|
[***]. |
|
3.7.7
|
[***]
|
|
3.8
|
[***] |
|
4
|
[***]
|
|
5
|
[***]
|
|
5.1
|
[***]
|
|
5.2
|
[***]
|
|
5.2.1
|
[***]
|
|
5.2.2
|
[***]
|
|
5.3
|
[***]
|
|
5.4
|
[***]
|
|
5.5
|
[***]
|
|
6
|
[***]
|
|
6.1
|
[***]
|
|
6.2
|
[***]
|
|
6.3
|
[***]
|
|
6.4
|
[***]
|
|
6.5
|
[***]
|
|
6.6
|
[***]
|
|
6.7
|
[***]
|
|
6.8
|
[***]
|
|
7
|
[***]
|
|
7.1
|
[***]
|
|
7.2
|
[***]
|
|
8
|
[***]
|
|
9
|
[***]
|
|
9.1
|
[***]
|
|
9.1.1
|
[***]
|
|
9.1.2
|
[***]
|
|
9.1.3
|
[***]
|
|
9.2
|
[***]
|
|
9.3
|
[***]
|
|
9.4
|
[***]
|
|
Agreed
and Accepted |
Agreed
and Accepted |
||||
|
For and
on behalf of |
For and
on behalf of |
||||
|
LAN
AIRLINES S.A. |
AIRBUS
S.A.S. |
||||
|
By
|
:
|
____________________
|
By
|
:
|
____________________
|
|
Its
|
:
|
____________________
|
Its
|
:
|
____________________
|
|
Date
|
:
|
____________________
|
Date
|
:
|
____________________
|
|
Load and
Trim Sheet software (“LTS”) is a ground software which allows the
Buyer to produce, for a given aircraft configuration, [***] |
|
4.2
|
Commercial
Conditions |
|
[***]
|
|
4.3
|
Delivery
|
|
Delivery
of LTS shall be mutually scheduled and agreed upon between the
parties. |
|
4.4
|
Installation
|
|
4.5
|
Support
|
|
4.6
|
Licence
|
|
Agreed
and Accepted |
Agreed
and Accepted |
||||
|
For and
on behalf of |
For and
on behalf of |
||||
|
LAN
AIRLINES S.A. |
AIRBUS
S.A.S. |
||||
|
By
|
:
|
____________________
|
By
|
:
|
____________________
|
|
Its
|
:
|
____________________
|
Its
|
:
|
____________________
|
|
Date
|
:
|
____________________
|
Date
|
:
|
____________________
|
|
1.
|
[***]
|
|
1.1
|
[***]
|
|
1.2
|
[***]
|
|
2.
|
[***]
|
|
Agreed
and Accepted |
Agreed
and Accepted |
||||
|
For and
on behalf of |
For and
on behalf of |
||||
|
LAN
AIRLINES S.A. |
AIRBUS
S.A.S. |
||||
|
By
|
:
|
____________________
|
By
|
:
|
____________________
|
|
Its
|
:
|
____________________
|
Its
|
:
|
____________________
|
|
Date
|
:
|
____________________
|
Date
|
:
|
____________________
|
|
Agreed
and Accepted |
Agreed
and Accepted |
||||
|
For and
on behalf of |
For and
on behalf of |
||||
|
LAN
AIRLINES S.A. |
AIRBUS
S.A.S. |
||||
|
By
|
:
|
____________________
|
By
|
:
|
____________________
|
|
Its
|
:
|
____________________
|
Its
|
:
|
____________________
|
|
By
|
:
|
____________________
|
By
|
:
|
____________________
|
|
Its
|
:
|
____________________
|
Its
|
:
|
____________________
|
|
Date
|
:
|
____________________
|
Date
|
:
|
____________________
|
|
Agreed
and Accepted |
Agreed
and Accepted |
||||
|
For and
on behalf of |
For and
on behalf of |
||||
|
LAN
AIRLINES S.A. |
AIRBUS
S.A.S. |
||||
|
By
|
:
|
____________________
|
By
|
:
|
____________________
|
|
Its
|
:
|
____________________
|
Its
|
:
|
____________________
|
|
By
|
:
|
____________________
|
By
|
:
|
____________________
|
|
Its
|
:
|
____________________
|
Its
|
:
|
____________________
|
|
Date
|
:
|
____________________
|
Date
|
:
|
____________________
|
EXHIBIT 4.2.1
Note: Confidential treatment has been requested for certain portions of this exhibit. The copy filed herewith omits the information subject to the confidential treatment request. Omissions are designated as “***”. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
Supplemental Agreement No. 16
to
Purchase Agreement No. 2126
between
THE BOEING COMPANY
and
LAN AIRLINES S.A.
(formerly known as Lan Chile S.A.)
Relating to Boeing Model 767-316ER, Model 767-38EF, and Model 767-316F Aircraft
THIS SUPPLEMENTAL AGREEMENT`, entered into as of the 11th day of November 2004, by and between THE BOEING COMPANY, a Delaware corporation (hereinafter called Boeing), and LAN Airlines S.A., a Chile corporation (hereinafter called Customer);
W I T N E S S E T H:
WHEREAS, the parties entered into that certain Purchase Agreement No. 2126, dated as of January 30, 1998 relating to the purchase and sale of Boeing Model 767-316ER, Model 767-38EF, and Model 767-316F aircraft (hereinafter referred to as “Aircraft”), which agreement, as amended and supplemented, together with all exhibits, specifications and letter agreements related or attached thereto, is hereinafter called the “Purchase Agreement;” and
WHEREAS, Customer and Boeing have come to agreement on the purchase and sale of four 767-300 Aircraft with scheduled delivery months of January, June, September and December of 2006,
WHEREAS, Boeing and Customer have agreed to amend the Purchase Agreement to incorporate the above change;
NOW THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto agree to amend the Purchase Agreement as follows:
|
1. |
Quantity, Model, and Description. |
1.1 Purchase of Four Additional Boeing Model 767 Aircraft. This Supplemental Agreement amends the Purchase Agreement to reflect the purchase by customer of one 767-316F Aircraft and three 767-316ER Aircraft.
1.2. Aircraft Description for 767-316F Aircraft. Boeing will manufacture and sell to Customer, and Customer will purchase from Boeing, the Aircraft described in the attached Aircraft Information Table No. 5. This attached Aircraft Information Table No. 5 includes the detail specification number of Customer’s Aircraft and will replace in its entirety the prior Table No. 5.
1.3. Aircraft Description for 767-316ER Aircraft. Boeing will manufacture and sell to Customer, and Customer will purchase from Boeing, the Aircraft described in the attached Aircraft Information Table No. 6. This attached Aircraft Information Table No. 6 contains preliminary specification information for the 767-316ER Aircraft which is in the process of being finalized.
2. Aircraft Delivery Schedule. The scheduled delivery month of each of the additional Aircraft is set forth in the attached Aircraft Information Tables No. 5 and 6.
3. Price. The Aircraft Basic Price and each component thereof and the Advance Payment Base Price for each of the additional Aircraft.
|
|
3.1. |
Payment. |
3.1.1. Boeing acknowledges that Customer has paid deposit payments to Boeing on October 28, 2004 in the amount of $140,000 for each of the Aircraft.
3.1.2. Customer will make Advance Payments to Boeing in the amount of 30% of the Advance Payment Base Price for each of the Aircraft. These payments will begin with a payment of 1%, less any deposit previously paid to Boeing. Additional payments for the Aircraft are due on the first business day of the months and in the amounts set forth in the attached Aircraft Information Tables No. 5 and 6.
3.1.3. The total amount of Advance Payments due upon the date of this Supplemental Agreement will include all Advance Payments that are or were due on or before such date in accordance with the Advance Payment Schedule set forth in the attached Aircraft Information Tables No. 5 and 6.
3.1.4. Any payments due to Boeing shall be made via wire transfer to the Boeing bank account as identified below.
[***]
|
4. |
Miscellaneous. |
4.1. Table of Contents. Remove and replace in its entirety the Table of Contents, with the Table of Contents attached hereto, to reflect the changes made by this Supplemental Agreement No. 16.
4.2. Letter Agreement. Remove and replace in its entirety Letter Agreement 6-1162-LAJ-0895 entitled [***] and replace it with the revised Letter Agreement 6-1162-LAJ-0895R1 entitled [***] and attached hereto.
|
|
4.3. |
Confidentiality. |
Each of Customer and Boeing understand that the information contained in this Supplemental Agreement is considered confidential. Each of Customer and Boeing agrees to treat this Supplemental Agreement as confidential and will not, without the prior written consent of the other party, disclose this Supplemental Agreement or any information contained herein to any third parties other than as required by applicable law or by the Export-Import Bank of the United States.
The Purchase Agreement shall be deemed amended to the extent herein provided and as amended shall continue in full force and effect.
|
|
2 |
|
EXECUTED IN DUPLICATE as of the day and year first above written.
|
THE BOEING COMPANY |
LAN AIRLINES S.A. |
|
By____[Illegible]_________ |
By____[Illegible]____________ |
|
Its Attorney-In-Fact |
Its Senior VP Corporate Investments |
|
|
3 |
|
PURCHASE AGREEMENT NUMBER 2126
between
THE BOEING COMPANY
and
LAN Airlines S.A.
Relating to Boeing Model 767-316ER, Model 767-38EF, and Model 767-316F Aircraft
TABLE OF CONTENTS
ARTICLES
|
|
1. |
Quantity, Model and Description |
SA 16 |
|
|
2. |
Delivery Schedule |
SA 16 |
|
|
3. |
Price |
SA 16 |
|
|
4. |
Payment |
SA 16 |
|
|
5. |
Miscellaneous |
SA 16 |
TABLE
|
|
1. |
Aircraft Information Table |
SA 1 |
|
|
2. |
Aircraft Information Table |
SA 1 |
|
|
3. |
Aircraft Information Table |
SA 8 |
|
|
4. |
Aircraft Information Table |
SA 11 |
|
|
5. |
Aircraft Information Table 767-316F Aircraft |
SA 16 |
|
|
6. |
Aircraft Information Table 767-316ER Aircraft |
SA 16 |
EXHIBIT
|
|
A. |
Aircraft Configuration |
|
|
A-1 |
Aircraft Configuration |
SA 1 |
|
|
A-2 |
Aircraft Configuration |
SA 5 |
|
|
A-3 |
Aircraft Configuration |
SA 10 |
|
|
A-4 |
Aircraft Configuration 767-316F Aircraft |
SA 15 |
|
|
A-5 |
Aircraft Configuration 767-316ER Aircraft |
SA 16 |
|
|
B. |
Aircraft Delivery Requirements and Responsibilities |
SA 1 |
SUPPLEMENTAL EXHIBITS
|
|
BFE1. |
BFE Variables |
SA 1 |
|
|
CS1. |
Customer Support Variables |
SA 1 |
|
|
EE1. |
Engine Escalation/Engine Warranty and Patent Indemnity |
SA 1 |
|
|
EE1-1. |
Engine Escalation/Engine Warranty and Patent Indemnity |
SA 5 |
|
|
EE1-2. |
Engine Escalation/Engine Warranty and Patent Indemnity |
SA 13 |
|
|
SLP1. |
Service Life Policy Components |
LETTER AGREEMENTS
|
|
2126-1 |
Seller Purchased Equipment |
|
|
2126-2 |
Cabin Systems Equipment |
|
|
2126-3R4 |
[***] |
SA 13 |
|
|
i |
|
RESTRICTED LETTER AGREEMENTS
|
6-1162-DMH-350 |
[ * * *] |
|
|
|
|
|
|
6-1162-DMH-351 |
[ * * *] |
|
|
|
|
|
|
6-1162-DMH-472 |
[ * * *] |
SA 1 |
|
|
|
|
|
6-1162-DMH-475 |
[ * * *] |
SA 1 |
|
|
|
|
|
6-1162-DMH-1031R2 |
[ * * *] |
SA 9 |
|
|
|
|
|
6-1162-LAJ-311 |
[ * * *] |
SA 11 |
|
|
|
|
|
6-1162-LAJ-0895 |
[ * * *] |
SA 14 |
|
|
|
|
|
6-1162-LAJ-0895R1 |
[ * * *] |
SA 16 |
|
|
|
|
|
|
ii |
|
Aircraft Information Table No. 5
to Purchase Agreement No. 2126
Aircraft Delivery, Description, Price and Advance Payments
|
Airframe Model/MTGW: |
767-300F |
|
412,000 |
|
Detail Specification: |
D019T002LAN63F-1 (4/2004) |
|
Engine Model: |
CF6-80C2B6F |
|
|
|
Airframe Price Base Year: |
Jul-03 |
|
Airframe Price: |
|
|
$109,022,000 |
|
Engine Price Base Year: |
Jul-03 |
|
Optional Feature: |
|
|
$ 1,410,200 |
|
|
|
|
Sub-Total of Airframe and Features: |
|
|
$110,432,200 |
|
Airframe Escalation Data: |
|
|
Engine Price (Per Aircraft): |
|
|
$ 18,424,006 |
|
Base Year Index (ECI): |
165.00 |
|
Aircraft Basic Price (Excluding BFE/SPE): |
|
|
$128,856,206 |
|
Base Year Index (ICI): |
136.80 |
|
Bayer Furnished Equipment (BFE) Estimate |
|
|
$ 0 |
|
Engine Escalation Data: |
|
|
Seller Purchased Equipment (SPE) Estimate: |
|
|
$ 1,418,000 |
|
Base Year Index (CPI): |
151.980 |
|
Refundable Deposit per Aircraft at Proposal Acceptance: |
|
$ 140,000 |
|
|
|
|
|
Delivery Date |
Number of Aircraft |
EscalationFactor (Airframe) |
Escalation Factor (Engine) |
Manufacturer Serial Number |
Escalation Estimate Adv Payment Base Price Per A/P |
Advance Payment Per Aircraft (Amts, Due/Mos. Prior to Delivery): |
|||
|
At Signing |
24 Mos. |
21/18/12/9/6 Mos. |
Total |
||||||
|
Jul-2005 |
1 |
1.0607 |
1.0690 |
34245 |
$138,381,000 |
$1,243,810 |
$5,535,240 |
$6,919,050 |
$41,514,300 |
|
Oct-2005 |
1 |
1.0689 |
1.0760 |
34246 |
$139,415,000 |
$1,254,150 |
$5,576,600 |
$6,970,750 |
$41,824,500 |
|
Jun-2006 |
1 |
1.0960 |
1.1080 |
34629 |
$143,001,000 |
$1,290,010 |
$5,720,040 |
$7,150,050 |
$42,900,300 |
|
|
1 |
|
Aircraft Information Table No. 6
to Purchase Agreement No. 2126
Aircraft Delivery, Description, Price and Advance Payments
|
Airframe Model/MTOW: 767-300ER |
412,000 |
Detail Specification: |
D019T001-E (November 2003) |
|
|
Engine Model: CF6-80C2B6F |
|
Airframe Price Base Year/Escalation Formula: |
Jul-03 |
Fixed Factor ECI-W Airframe |
|
Airframe Price: |
$ 97,098,000 |
Engine Price Base Year/Escalation Formula: |
Jul-03 |
GE CF6-80 (99 rev.) |
|
Optional Features: |
$ 7,622,700 |
|
|
|
|
Sub-Total of Airframe and Features: |
$104,720,700 |
Airframe Escalation Data: |
|
|
|
Engine Price (Per Aircraft): |
$ 18,424,006 |
Base Year Index (BCI): |
N/A |
|
|
Aircraft Basic Price (Excluding BFE/SPE): |
$123,144,706 |
Base Year Index (ICI): |
N/A |
|
|
Buyer Furnished Equipment (BFE) Estimate: |
$ 0 |
Engine Escalation Data: |
|
|
|
Seller Purchased Equipment (SPE) Estimate: |
$ 2,950,000 |
Base Year Index (CPI): |
151.980 |
|
|
Refundable Deposit/Aircraft at Proposal Accept: |
$ 140,000 |
|
|
|
|
Delivery Date |
Number of Aircraft |
Escalation |
Escalation |
Manufacturer Serial Number |
Escalation Estimate |
Advance Payment Per Aircraft (Amts, Due/Mos. Prior to Delivery) |
|||
|
At Signing 1% |
24 Mos. 4% |
21/18/12/9/6 Mos. 5% |
Total 38% |
||||||
|
Jan-2006 |
1 |
1.0854 |
1.0950 |
34626 |
$137,040,000 |
$1,230,400 |
$5,481,600 |
$6,852,000 |
$40,972,000 |
|
Sep-2006 |
1 |
1.1047 |
1.1140 |
34627 |
$139,468,000 |
$1,254,680 |
$5,578,720 |
$6,973,400 |
$41,700,400 |
|
Dec-2006 |
1 |
1.1140 |
1.1210 |
34628 |
$140,598,000 |
$1.265,980 |
$5,623,920 |
$7,029,900 |
$42,039,400 |
|
|
2 |
|
AIRCRAFT CONFIGURATION
between
THE BOEING COMPANY
and
LAN Airlines S.A.
Exhibit A-5 to Purchase Agreement Number 2126
AIRCRAFT CONFIGURATION
Relating to
BOEING MODEL 767-316ER AIRCRAFT
THE LAN AIRCRAFT
The Detail Specification for the Aircraft is based on Boeing Customer Detail Specification D019T001-1 dated November 2003 and is in the process of development.
The Optional Features and Changes utilized for the initial pricing are based on the last delivered 767-316ER Aircraft and will be updated when the basic configuration is completed.
|
|
1 |
|
Boeing Commercial Airplanes
P.O. Box 3707
Seattle, WA 98124-2207
6-1162-LAJ-0895R1
Lan Airlines, S.A.
Santiago, Chile
|
Subject: |
[***] |
|
Reference: |
Purchase Agreement No. 2126 (The Purchase Agreement) between The Boeing Company (Boeing) and Lan Chile S.A. (formerly known as Lan Chile S.A) (Customer) relating to Model 767-316F and Model 767-316ER aircraft (hereinafter referred to as “Aircraft”) |
This letter agreement (Letter Agreement) amends the Purchase Agreement. All terms used but not defined in this Letter Agreement shall have the same meaning as in the Purchase Agreement. This Letter Agreement supersedes and replaces in its entirety Letter Agreement 6-1162-LAJ-0895 dated April 20, 2004.
|
1. |
Credit Memorandum. |
In consideration of Customer purchasing the Aircraft, Boeing will provide concurrent with the delivery of each Model 767-316F and each Model 767-316ER Aircraft contained on the Aircraft Information Tables No. 5 and 6 of the Purchase Agreement a credit memorandum equal to [***] of the escalated Airframe Price. This credit memorandum may be used for the purchase of any Boeing goods and services including aircraft but the credit memorandum may not be used for advance payments.
|
2. |
Export License. |
Customer understands and confirms that it is Customer’s responsibility to obtain any required Export License from the relevant U.S. authority. Without accepting any liability for any failure to do so. Boeing will use reasonable endeavors to alert Customer to any regulatory changes of which Boeing becomes aware and which require Buyer to obtain such Export License.
|
3. |
Warranty Modification. |
Notwithstanding paragraph 3.2 of Part 2 of Exhibit C to the AGTA, Boeing agrees that the warranty period for a Corrected Boeing Product resulting from a defect in material or workmanship is 6 months or the remainder of the initial warranty period, whichever is longer.
|
4. |
[***] |
|
5. |
[***] |
|
6. |
[***] |
|
|
2 |
|
|
7. |
Payment Due at Signing of Supplemental Agreement No. 14. |
Notwithstanding payment requirements described in Supplemental Agreement No. 14, Customer may defer the payment (s) that would otherwise be required at signing to any date on or before May 6, 2004.
|
8. |
[***] |
|
9. |
[***] |
|
10. |
[***] |
|
11. |
[***] |
|
12. |
[***] |
|
13. |
[***] |
|
14. |
[***] |
|
15. |
[***] |
|
16. |
[***] |
|
16.1 |
[***] |
|
16.2 |
[***] |
|
16.3 |
[***] |
|
16.3.1 |
[***] |
|
16.3.2 |
[***] |
|
16.3.3 |
[***] |
|
17. |
Aircraft Information Tables and Advance Payments. |
Because of the flexibility described above, Aircraft Information Tables are attached to this business offer to establish the Aircraft Delivery, Description, Price and Advance Payments in those cases where a change will be made to the Default Aircraft Decision. In any case where a change to Aircraft Information Tables No. 5 or 6 is required, Boeing will provide Customer with each such revised aircraft information table which will be incorporated into Purchase Agreement 2126 without any additional signatures or authority from either party. If a change to the Purchase Agreement causes the Advance Payments being held for a particular aircraft to change, Boeing will invoice Customer if more advance payments are required and Boeing will provide a refund to Customer if Boeing is holding more advance payments than are required because of the change.
|
|
3 |
|
|
18. |
Payment Due at Signing of Supplemental Agreement No. 16. |
Notwithstanding payment requirements described in Supplemental Agreement No. 16 to Purchase Agreement No. 2126, Customer may defer without interest the payment required at signing to any date on or before November 12, 2004.
|
19. |
[***] |
|
20.0. |
Confidentiality. |
Each of Customer and Boeing understand that the information contained in this Letter Agreement is considered confidential. Each of Customer and Boeing agree to treat this Letter Agreement as confidential and will not, without the prior written consent of the other party, disclose this Letter Agreement or any information contained herein to any third parties, other than as required by applicable law or the Export-Import Bank of the United States.
If the foregoing correctly sets forth your understanding of our agreement with respect to the matters treated above, please indicate your acceptance and approval below.
Very truly yours,
THE BOEING COMPANY
|
By |
[Illegible] |
|
Its |
Attorney-In-Fact |
ACCEPTED AND AGREED TO this
Date: November 11th, 2004
LAN AIRLINES S.A.
|
By |
[Illegible] |
|
Its |
Senior VP Corporate Investments |
|
|
4 |
|
Aircraft Information Table
to LA 6-1162-LAJ-0895R1
Aircraft Delivery, Description, Price and Advance Payments
|
Airframe Model/MTOW: 767-300ER |
412,000 |
Detail Specification: |
D019T001-E (November 2003) |
|
|
Engine Model: CP6-80C2B6F |
|
Airframe Price Base Year/Escalation Formal: |
Jul-03 |
Fixed Factor ECI- Airframe |
|
Airframe Price: |
$ 97,098,000 |
Engine Price Base Year/Escalation Formula: |
Jul-03 |
GE CF6-80 (99 rev.) |
|
Optional Features: |
$ 7,622,700 |
|
|
|
|
Sub-Total of Airframe and Features: |
$104,720,700 |
Airframe Escalation Data: |
|
|
|
Engine Price (Per Aircraft); |
$ 18,424,006 |
Base Year Index (ECI): |
N/A |
|
|
Aircraft Basic Price (Excluding BFE/SPE): |
$123,144,706 |
Base Year Index (ICI): |
N/A |
|
|
Buyer Furnished Equipment (BFE) Estimate: |
$ 0 |
Engine Escalation Data: |
|
|
|
Seller Purchased Equipment (SPE) Estimate: |
$ 2,950,000 |
Base Year Index (CPI): |
151.980 |
|
|
|
|
|
|
|
|
Refundable Deposit/Aircraft at Proposal Accept: |
$ 140,000 |
|
|
|
|
Delivery |
Number of |
Escalation Factor (Airframe) |
Escalation Factor (Engine) |
Manufacturer |
Escalation Estimate Adv Payment Base Price Per A/P |
Advance Payment Per Aircraft (Amts. Due/Mos. Prior to Delivery): |
|||
|
At Signing 1% |
24 Mos. |
21/18/12/9/6 Mos. 5% |
Total |
||||||
|
Jun-2006 |
1 |
1.0960 |
1.1080 |
34629 |
$138,421,000 |
$1,244,210 |
$5,536,840 |
$6,921,050 |
$41,386,300 |
|
|
5 |
|
Aircraft Information Table
to Letter Agreement No. 6-1162-LAJ-0895R1
Aircraft Delivery, Description, Price and Advance Payments
|
Airframe Model/MTGW: 767-300F 412,000 |
|
Detail Specification: |
D019T002LAN63F-1 (4/2004) |
|
|
Engine Model: CF6-80C2B6F |
|
Airframe Price Base Year: |
Jul-03 |
|
|
Airframe Price: |
$109,022,000 |
Engine Price Base Year: |
Jul-03 |
|
|
Optional Features: |
$ 1,410,200 |
|
|
|
|
Sub-Total of Airframe and Features: |
$110,432,200 |
Airframe Escalation Data: |
|
|
|
Engine Price (Per Aircraft): |
$ 18,424,006 |
Base Year Index (ECI): |
|
165.00 |
|
Aircraft Basic Price (Excluding BFE/SPE): |
$128,856,206 |
Base Year Index (ICI): |
|
136.80 |
|
Buyer Furnished Equipment (BFE) Estimate: |
$ 0 |
Engine Escalation Data: |
|
|
|
Seller Purchased Equipment (SPE) Estimate: |
$ 1,418,000 |
Base Year Index (CPI): |
|
151.980 |
|
|
|
|
|
|
|
Refundable Deposit per Aircraft at Proposal Acceptance: |
$ 140,000 |
|
|
|
|
Delivery Date |
Number of Aircraft |
Escalation Factor (Airframe) |
Escalation Factor (Engine) |
Manufacturer Serial Number |
Escalation Estimate |
Advance Payment Per Aircraft (Amts. Due/Mos. Prior to Delivery): |
|||
|
At Signing 1% |
24 Mos. 4% |
21/18/12/9/6 Mos. 5% |
Total 38% |
||||||
|
Sep-2006 |
1 |
1.1047 |
1.1114 |
34627 |
$144,086,000 |
$1,300,860 |
$5,763,440 |
$7,204,300 |
$43,225,800 |
|
Dec-2006 |
1 |
1.1140 |
1.1210 |
34628 |
$145,255,000 |
$1,312,550 |
$5,810,200 |
$7,262,750 |
$43,576,500 |
|
|
6 |
|
Boeing Commercial Airplanes
P.O. Box 3707
Seattle, WA 98124-2207
6-1162-LAJ-956
February 4, 2005
LAN Airlines S.A.
Santiago, Chile
|
Subject: |
[ * * * ] |
|
Reference: |
Purchase Agreement No. 2126 (The Purchase Agreement) between The Boeing Company (Boeing) and LAN Airlines S.A. (formerly known as Lan Chile S.A.) (Customer) relating to Model 767-316F and Model 767-316ER aircraft (hereinafter referred to as “Aircraft”) |
This letter agreement (Letter Agreement) amends the Purchase Agreement. All terms used but not defined in this Letter Agreement shall have the same meaning as in the Purchase Agreement.
|
1. |
[ * * * ] |
|
2. |
Confidentiality. |
Customer and Boeing understand that the information contained in this Letter Agreement is considered confidential. Each of Customer and Boeing agree to treat this Letter Agreement as confidential and will not, without the prior written consent of the other party, disclose this Letter Agreement or any information contained herein to any third parties, other than as required by applicable law or by the Export-Import Bank of the United States.
If the foregoing correctly sets forth your understanding of our agreement with respect to the matters treated above, please indicate your acceptance and approval below.
|
|
7 |
|
Very truly yours,
THE BOEING COMPANY
|
By |
[Illegible] |
|
Its |
Attorney-In-Fact |
LAN Airlines S.A.
|
By |
[Illegible] |
|
Its |
Senior VP Corporate Investments |
|
|
8 |
|
Supplemental Agreement No. 17
to
Purchase Agreement No. 2126
between
THE BOEING COMPANY
and
LAN AIRLINES S.A.
(Formerly known as Lan Chile S.A.)
Relating to Boeing Model 767-316ER, Model, 767-38EF, and Model 767-316F Aircraft
THIS SUPPLEMENTAL AGREEMENT, entered into as of the 21st day of January 2005, by and between THE BOEING COMPANY, a Delaware corporation (hereinafter called Boeing), and LAN Airlines S.A, a Chile corporation (hereinafter called “Customer”);
W I T N E S S E T H:
WHEREAS, the parties entered into that certain Purchase Agreement No. 2126, dated as of January 30, 1998, relating to the purchase and sale of Boeing Model 767-316ER, Model 767-38EF, and Model 767-316F aircraft (hereinafter referred to as “Aircraft”), which agreement, as amended and supplemented, together with all exhibits, specifications and letter agreements related or attached thereto, is hereinafter called the “Purchase Agreement”; and
WHEREAS, Customer and Boeing have come to agreement on the configuration of the recently purchased 767-316ER aircraft with scheduled delivery months of January, September and December of 2006;
WHEREAS, Boeing and Customer have agreed to amend the Purchase Agreement to incorporate the above change;
NOW THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto agree to amend the Purchase Agreement as follows:
|
1. |
Aircraft Description for 767-316ER Aircraft. This Supplemental Agreement includes configuration of Customer’s 2006 767-316ER Aircraft as summarized in the attached Exhibit A-5 entitled Aircraft Configuration for 767-316ER Aircraft. |
|
2. |
Miscellaneous. |
2.1. Table of Contents. Remove and replace in its entirety the Table of Contents, with the revised Table of Contents attached hereto.
|
P.A. 2126 |
Page 1 |
SA 17 |
2.2. Aircraft Information Table No 6. Remove and replace in its entirety the Aircraft Information Table No. 6, with the revised Aircraft Information Table No. 6 attached hereto.
2.3. Exhibit A-5. Remove and replace in its entirety the Exhibit A-5 Aircraft Configuration for 767-316ER Aircraft with the revised Exhibit A-5 Aircraft Configuration for 767-316ER Aircraft attached hereto.
2.4. Letter Agreement 2126-2R1. Remove and replace in its entirety Letter Agreement 2126-2 Cabin Systems Equipment with the revised 2126-2R1 Cabin Systems Equipment attached hereto.
|
3. |
Confidentiality. |
Customer and Boeing understand that the information contained in this Supplemental Agreement is considered confidential. Each of Customer and Boeing agree to treat this Supplemental Agreement as confidential and will not, without the prior written consent of the other party, disclose this Supplemental Agreement or any information contained herein to any third parties, other than as required by applicable law or by the Export-Import Bank of the United States.
The Purchase Agreement shall be deemed amended to the extent herein provided and as amended shall continue in full force and effect.
EXECUTED IN DUPLICATE as of the day and year first above written.
|
THE BOEING COMPANY By [Illegible] |
LAN AIRLINES S.A. By [Illegible] |
|
Its Attorney-In-Fact |
Its Senior VP Corporate Investments |
|
P.A. 2126 |
Page 2 |
SA 17 |
Aircraft Information Table No. 6
to Purchase Agreement No. 2126
Aircraft Delivery, Description, Price and Advance Payments
|
Airframe Model/MTOW: 767-300ER |
412,000 |
Detail Specification: D019T001LAN63E-1 (Jan 20, 2005) |
|
|
Engine Model: CF6-80C2B6F |
|
Airframe Price Base Year/Escalation Formula: |
Jul-03 Fixed Factor ECI-W Airframe |
|
Airframe Price: |
$ 97,098,000 |
Engine Price Base Year/Escalation Formula: |
Jul-03 GE CF6-80 (99 rev.) |
|
Optional Features: |
$ 5,784,000 |
|
|
|
Sub-Total of Airframe and Features: |
$102,882,000 |
Airframe Escalation Data: |
|
|
Engine Price (Per Aircraft): |
$ 18,424,006 |
Base Year Index (ECI): |
N/A |
|
Aircraft Basic Price (Excluding BFE/SPE): |
$121,306,006 |
Base Year Index (ICI): |
N/A |
|
Buyer Furnished Equipment (BFE) Estimate: |
$ 0 |
Engine Escalation Data: |
|
|
Seller Purchased Equipment (SPE) Estimate: |
$ 5,050,000 |
Base Year Index (CPI): |
151.980 |
|
|
|
|
|
|
Refundable Deposit/Aircraft at Proposal Accept: |
$ 140,000 |
|
|
|
Delivery Date |
Number of Aircraft |
Escalation Factor (Airframe) |
Escalation Factor (Engine) |
Manufacturer Serial Number |
Escalation Estimate Adv Payment Base Price Per A/P |
Advance Payment Per Aircraft (Amts. Due/Mos. Prior to Delivery): |
|||
|
At Signing 1% |
24 Mos. 4% |
21/18/12/9/6 Mos. 5% |
Total 30% |
||||||
|
Jan-2006 |
1 |
1.0854 |
1.0950 |
34626 |
$137,040,000 |
$1,230,400 |
$5,481,600 |
$6,852,000 |
$40,972,000 |
|
Sep-2006 |
I |
1.1047 |
1.1140 |
34627 |
$139,468,000 |
$1,254,680 |
$5,578,720 |
$6,973,400 |
$41,700,400 |
|
Dec-2006 |
I |
1.1140 |
1.1210 |
34628 |
$140,598,000 |
$1,265,980 |
$5,623,920 |
$7,029,900 |
$42,039,400 |
|
LAN P.A. 2126, SA 17 |
Boeing Proprietary |
Page 1 of 1 |
PURCHASE AGREEMENT NUMBER 2126
between
THE BOEING COMPANY
and
LAN Airlines S.A.
Relating to Boeing Model 767-316ER, Model 767-38EF and Model 767-316F Aircraft
|
P.A. 2126 |
|
SA 17 |
TABLE OF CONTENTS
ARTICLES
|
|
A. |
Quantity, Model and Description |
SA 16 |
|
|
B. |
Delivery Schedule |
SA 16 |
|
|
C. |
Price |
SA 16 |
|
|
D. |
Payment |
SA 16 |
|
|
E. |
Miscellaneous |
SA 16 |
TABLE
|
|
F. |
Aircraft Information Table |
SA 1 |
|
|
G. |
Aircraft Information Table |
SA 1 |
|
|
H. |
Aircraft Information Table |
SA 8 |
|
|
I. |
Aircraft Information Table |
SA 11 |
|
|
J. |
Aircraft Information Table 767-316F Aircraft |
SA 16 |
|
|
K. |
Aircraft Information Table 767-316ER Aircraft |
SA 17 |
EXHIBIT
|
|
A. |
Aircraft Configuration |
|
|
A-1 |
Aircraft Configuration |
SA 1 |
|
|
A-2 |
Aircraft Configuration |
SA 5 |
|
|
A-3 |
Aircraft Configuration |
SA 10 |
|
|
A-4 |
Aircraft Configuration 767-316F Aircraft |
SA 15 |
|
|
A-5 |
Aircraft Configuration 767-316ER Aircraft |
SA 17 |
|
|
B. |
Aircraft Delivery Requirements and Responsibilities |
SA 1 |
SUPPLEMENTAL EXHIBITS
|
|
BFE1. |
BFE Variables |
SA 1 |
|
|
CS1. |
Customer Support Variables |
SA 1 |
|
|
EE1. |
Engine Escalation/Engine Warranty and Patent Indemnity |
SA 1 |
|
|
EE1-1. |
Engine Escalation/Engine Warranty and Patent Indemnity |
SA 5 |
|
|
EE1-2. |
Engine Escalation/Engine Warranty and Patent Indemnity |
SA 13 |
SLP1. Service Life Policy Components
LETTER AGREEMENTS
|
|
2126-1 |
Seller Purchased Equipment |
|
|
2126-2R1 |
Cabin Systems Equipment |
SA 17 |
|
|
2126-3R4 |
[***] |
SA 13 |
|
P.A. 2126 |
1 |
SA 17 |
|
RESTRICTED LETTER AGREEMENTS |
|
|
|
6-1162-DMH-350 |
[***] |
|
|
6-1162-DMH-351 |
[***] |
|
|
6-1162-DMH-472 |
[***] |
SA 1 |
|
6-1162-DMH-475 |
[***] |
SA 1 |
|
6-1162-DMH-1031R2 |
[***] |
SA 9 |
|
6-1162-LAJ-311 |
[***] |
SA 11 |
|
6-1162-LAJ-0895 |
[***] |
SA 14 |
|
6-1162-LAJ-0895R1 |
[***] |
SA 16 |
|
P.A. 2126 |
Page 2 |
SA 17 |
AIRCRAFT CONFIGURATION
between
THE BOEING COMPANY
and
LAN Airlines S.A.
Exhibit A-5 to Purchase Agreement Number 2126
|
P.A. 2126 |
A-5 |
SA 17 |
AIRCRAFT CONFIGURATION
Relating to
BOEING MODEL 767-316ER AIRCRAFT
THE LAN AIRCRAFT
The Detail Specification is Boeing Detail Specification D019T001LAN63E-1 January 20, 2005. Such Detail Specification will be comprised of Boeing Configuration Specification D019T001 Revision E dated November 5, 2003 as amended to incorporate the Options on the following pages, including the effects on Manufacturer’s Empty Weight (MEW) and Operating Empty Weight (OEW). As soon as practicable, Boeing will furnish to Customer copies of the Detail Specification, which copies will reflect such Options. The Aircraft Basic Price reflects and includes all effects of such Options, except such Aircraft Basic Price does not include the price effects of any Buyer Furnished Equipment or Seller Purchased Equipment.
|
P.A. 2126 |
A-5 |
SA 17 |
|
|
Exhibit A-5 |
|||
|
CR |
Title |
Jul 2003 DLRS |
||
|
|
[***] |
|
||
|
P.A. 2126 SA 17 |
BOEING PROPRIETARY |
Page 1 of 7 |
2126-2R1
LAN Airlines
S.A. Santiago, Chile
|
Subject: |
Installation of Cabin Systems Equipment |
|
Reference: |
Purchase Agreement No. 2126 (the Purchase Agreement) between The Boeing Company (Boeing) and LAN Airlines S.A. (Customer) relating to Model 767-316ER aircraft (the Aircraft) |
This Letter Agreement amends and supplements the Purchase Agreement. All terms used but not defined in this Letter Agreement have the same meaning as in the Purchase Agreement.
Customer has requested that Boeing install in the Aircraft the inflight entertainment and cabin communications systems (IFE/CCS) described in Attachment A to this Letter Agreement.
Because of the complexity of the IFE/CCS, special attention and additional resources will be required during the development, integration, certification, and manufacture of the Aircraft to achieve proper operation of the IFE/CCS at the time of delivery of the Aircraft. To assist Customer, Boeing will perform the functions of project manager (the Project Manager) as set forth in Attachment B.
|
1. |
Responsibilities. |
|
|
1.1 |
Customer will: |
|
|
1.1.1 |
Provide Customer’s IFE/CCS system requirements to Boeing; |
1.1.2 Select the IFE/CCS suppliers (Suppliers) identified in the Change Requests listed in Attachment A to this Letter Agreement;
1.1.3 Participate with Boeing in meetings with Suppliers to ensure that Supplier’s functional system specifications meet Customer’s and Boeing’s respective requirements. Such functional systems specifications define functionality to which Boeing will test prior to delivery but is not a guarantee of functionality at delivery;
|
|
1.1.4 |
Select Supplier part numbers; |
1.1.5 Negotiate and obtain agreements on product assurance, product support following Aircraft delivery (including spares support), and any other special business arrangements directly with Suppliers;
1.1.6 Provide pricing information for part numbers selected above to Boeing by a mutually selected date;
|
P.A. 2126 SA 17 |
BOEING PROPRIETARY |
|
LAN Airlines S.A.
2126-2R1
Page 2
|
|
1.1.7 |
Negotiate and obtain agreements with any required service providers; and |
1.1.8 Include in Customer’s contract with any seat supplier a condition obligating such seat supplier to enter into and comply with a Boeing approved bonded stores agreement. This bonded stores agreement will set forth the procedures concerning the use, handling and storage for the Boeing owned IFE/CCS equipment during the time such equipment is under the seat supplier’s control.
|
|
1.1.9 |
[***] |
|
|
1.2 |
Boeing will: |
|
|
1.2.1 |
Perform the Project Manager functions stated in Attachment B; |
|
|
1.2.2 |
Provide Aircraft interface requirements to Suppliers; |
1.2.3 Assist Suppliers in the development of their IFE/CCS system specifications and approve such specifications;
1.2.4 Negotiate terms and conditions (except for price, product assurance, product support following Aircraft delivery and any other special business arrangements) and enter into contracts with Suppliers and manage such contracts for the IFE/CCS;
|
|
1.2.5 |
Coordinate the resolution of technical issues with Suppliers; |
1.2.6 Ensure that at time of Aircraft delivery the IFE/CCS configuration meets the requirements of the Change Requests contained in Attachment A to this Letter Agreement as such Attachment A may be amended from time to time; and
1.2.7 Obtain FAA certification of the Aircraft with the IFE/CCS installed therein.
|
2. |
Software. |
IFE/CCS systems may contain software of the following two types.
2.1 Systems Software. The software required to operate and certify the IFE/CCS systems on the Aircraft is the Systems Software and is part of the IFE/CCS.
2.2 Customer’s Software. The software accessible to the Aircraft passengers which controls Customer’s specified optional features is Customer’s Software and is not part of the IFE/CCS.
2.2.1 Customer is solely responsible for specifying Customer’s Software functional and performance requirements and ensuring that Customer’s Software meets such requirements. Customer and Customer’s Software supplier will have total responsibility for the writing, certification, modification, revision, or correction of any of Customer’s Software.
|
P.A. 2126 SA 17 |
BOEING PROPRIETARY |
|
LAN Airlines S.A.
2126-2R1
Page 3
Boeing will not perform the functions and obligations described in paragraph 1.2 above, nor the Project Manager’s functions described in Attachment B, for Customer’s Software.
2.2.2 The omission of any Customer’s Software or the lack of any functionality of Customer’s Software will not be a valid condition for Customer’s rejection of the Aircraft at the time of Aircraft delivery.
2.2.3 Boeing has no obligation to approve any documentation to support Customer’s Software certification. Boeing will only review and operate Customer’s Software if in Boeing’s reasonable opinion such review and operation is necessary to certify the IFE/CCS system on the Aircraft.
2.2.4 Boeing will not be responsible for obtaining FAA certification for Customer’s Software.
|
3. |
Changes. |
|
|
3.1 |
[***] |
|
|
3.2 |
[***] |
|
|
3.3 |
[***] |
|
|
3.4 |
[***] |
|
4. |
Supplier Defaults. |
Boeing shall notify Customer in a timely manner in the event of a default by a Supplier under the Supplier’s contract with Boeing. Within 15 days of Customer’s receipt of such notification, Boeing and Customer shall agree through negotiations on an alternative Supplier or other course of action. If Boeing and Customer are unable to agree on an alternative Supplier or course of action within such time, the remedies available to Boeing in Paragraph 6 shall apply.
|
5. |
Exhibits B and C to the AGTA. |
IFE/CCS is deemed to be BFE for the purposes of Exhibit B, Customer Support Document, and Exhibit C, the Product Assurance Document, of the AGTA.
|
6. |
Boeing’s Remedies. |
If Customer does not comply with any of its obligations set forth herein, Boeing may:
|
|
6.1 |
[***] |
|
|
6.2 |
[***] |
|
|
6.3 |
[***] |
|
P.A. 2126 SA 17 |
BOEING PROPRIETARY |
|
LAN Airlines S.A.
2126-2R1
Page 4
|
7. |
Advance Payments. |
|
|
7.1 |
[***] |
|
|
7.2 |
[***] |
|
8. |
Customer’s Indemnification of Boeing. |
Customer will indemnify and hold harmless Boeing from and against all claims and liabilities, including costs and expenses (including attorneys’ fees) incident thereto or incident to successfully establishing the right to indemnification, for injury to or death of any person or persons, including employees of Customer but not employees of Boeing, or for loss of or damage to any property, including Aircraft arising out of or in any way connected with any nonconformance or defect in any IFE/CCS, or in the installation thereof or in the provision of services hereunder, and whether or not arising in tort or occasioned in whole or in part by the negligence of Boeing. This indemnity will not apply with respect to any nonconformance or defect caused solely by Boeing’s installation of the IFE/CCS.
|
9. |
Title and Risk of Loss. |
Title and risk of loss of IFE/CCS equipment will remain with Boeing until the Aircraft title is transferred to Customer.
If the foregoing correctly sets forth your understanding of our agreement with respect to the matters treated above, please indicate your acceptance and approval below.
Very truly yours,
THE BOEING COMPANY
|
By [Illegible] |
|
|
Its Attorney-In-Fact |
|
|
P.A. 2126 SA 17 |
BOEING PROPRIETARY |
|
LAN Airlines S.A.
2126-2R1
Page 5
ACCEPTED AND AGREED TO this
Date: January 21, 2005
LAN AIRLINES S.A.
|
By |
[Illegible] |
|
Its |
Senior VP Corporate Investments |
|
P.A. 2126 SA 17 |
BOEING PROPRIETARY |
|
Attachment A to
Letter Agreement No.
2126-2R1
Page 1
Attachment A
Cabin Systems Equipment
The following Change Requests describe the items of equipment that under the terms and conditions of this Letter Agreement are considered to be IFE/CCS. Each such Change Request is described in Customer Option File No. 30763W000A. Final configuration will be based on Customer acceptance of the changes listed below.
Change Request Number and Title
|
[***] |
[***] |
|
[***] |
[***] |
|
P.A. 2126 SA 17 |
BOEING PROPRIETARY |
|
Attachment B to
Letter Agreement No. 2126-2R1
Page 1
Attachment B
Project Manager
This Attachment B describes the functions that Boeing will perform as Project Manager to support (i) the development and integration of the IFE/CCS and (ii) the FAA certification of the IFE/CCS when installed on the Aircraft.
|
1. |
Project Management |
Boeing will perform the following functions for the IFE/CCS. Boeing will have authority to make day-to-day management decisions, and decisions on technical details which in Boeing’s reasonable opinion do not significantly affect form, fit, function, cost or aesthetics. Boeing will be responsible for:
|
|
A. |
Managing the development of all program schedules; |
|
|
B. |
Evaluating and approving Supplier’s program management and developmental plans; |
|
|
C. |
Defining program metrics and status requirements; |
|
|
D. |
Scheduling and conducting program status reviews; |
|
|
E. |
Scheduling and conducting design and schedule reviews with Customer and Suppliers; |
|
|
F. |
Monitoring compliance with schedules; |
|
|
G. |
Evaluating and approving any recovery plans or plan revisions which may be required of either Suppliers or Customer; |
|
|
H. |
Leading the development of a joint IFE/CCS project management plan (the Program Plan) and; |
|
|
I. |
Managing the joint development of the System Specification |
|
2. |
System Integration |
Boeing’s performance as Project Manager will include the functions of systems integrator (Systems Integrator). As Systems Integrator Boeing will perform the following functions:
|
|
A. |
As required, assist Suppliers in defining their system specifications for the IFE/CCS, approve such specifications and develop an overall system functional specification; |
|
P.A. 2126 SA 17 |
BOEING PROPRIETARY |
|
Attachment B to
Letter Agreement No. 2126-2R1
Page 2
|
|
B. |
Coordinate Boeing, Customer and Supplier teams to ensure sufficient Supplier and Supplier sub system testing and an overall cabin system acceptance test are included in the Program Plan; and |
|
|
C. |
Organize and conduct technical coordination meetings with Customer and Suppliers to review responsibilities, functionality, Aircraft installation requirements and overall program schedule, direction and progress. |
|
3. |
Seat Integration |
|
|
A. |
Boeing will coordinate the interface requirements between seat suppliers and Suppliers. Interface requirements are defined in Boeing Document Nos. D6-36230, “Passenger Seat Design and Installation” D6-36238, “Passenger Seat Structural Design and Interface Criteria’’ D222W232, “Seat Wiring and Control Requirements” and D222W013-4, “Seat Assembly Functional Test Plan”. |
|
|
B. |
The Suppliers will be required to coordinate integration testing and provide seat assembly functional test procedures for seat electronic parts to seat suppliers and Boeing, as determined by Boeing. |
|
|
C. |
The Suppliers will assist the seat suppliers in the preparation of seat assembly functional test plans. |
|
P.A. 2126 SA 17 |
BOEING PROPRIETARY |
|
Supplemental Agreement No. 18
to
Purchase Agreement No. 2126
between
THE BOEING COMPANY
and
LAN AIRLINES S.A.
(Formerly known as Lan Chile S.A.)
Relating to Boeing Model 767-316ER, Model 767-38EF, and Model 767-316F Aircraft
THIS SUPPLEMENTAL AGREEMENT, entered into as of the 10th day of March 2005, by and between THE BOEING COMPANY, a Delaware corporation (hereinafter called Boeing), and LAN Airlines S.A, a Chile corporation (hereinafter called Customer);
W I T N E S S E T H:
WHEREAS, the parties entered into that certain Purchase Agreement No. 2126, dated as of January 30, 1998 relating to the purchase and sale of Boeing Model 767-316ER, Model 767-38EF, and Model 767-316F aircraft (hereinafter referred to as “Aircraft”), which agreement, as amended and supplemented, together with all exhibits, specifications and letter agreements related or attached thereto, is hereinafter called the “Purchase Agreement”; and
WHEREAS, Customer and Boeing have come to agreement and wish to document that the June 2006 Aircraft will be a 767-300ER Passenger Aircraft, and
WHEREAS, Customer and Boeing have agreed to accelerate the scheduled delivery month of the June and December 2006 767-300ER Aircraft to May and November 2006 respectively, and
WHEREAS, Customer and Boeing have come to agreement and wish to document that the September 2006 Aircraft will be a 767-300F Freighter Aircraft,
WHEREAS, Boeing and Customer have agreed to amend the Purchase Agreement to incorporate the above changes;
|
|
1 |
|
NOW THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto agree to amend the Purchase Agreement as follows:
|
1. |
Aircraft Description and Delivery Position for 2006 767-316ER Passenger Aircraft. This Supplemental Agreement documents the Customer decision to finalize the June 2006 Aircraft position as a 767-316ER Passenger Aircraft. In addition, Boeing offered to provide the June 2006 Aircraft with a scheduled delivery month of May 2006 and Customer has accepted that change. |
|
2. |
Aircraft Description and Delivery Position for 2006 767-316F Freighter Aircraft. This Supplemental Agreement documents the Customer decision to finalize the September 2006 Aircraft position as a 767-316F Freighter Aircraft. |
|
3. |
Miscellaneous. |
|
|
3.1. |
Table of Contents. Remove and replace in its entirety the Table of Contents, with the revised Table of Contents attached hereto. |
|
|
3.2. |
Aircraft Information Table No 5 (Freighter Aircraft). Remove and replace in its entirety the Aircraft Information Table No 5, with the revised Aircraft Information Table No 5 attached hereto. |
|
|
3.3. |
Aircraft Information Table No 6 (Passenger Aircraft). Remove and replace in its entirety the Aircraft Information Table No 6, with the revised Aircraft Information Table No 6 attached hereto. |
|
|
3.4. |
Letter Agreement 6-1162-LAJ-0895R1. Remove and replace in its entirety Letter Agreement 6-1162-LAJ-0895R1 [***] with the revised 6-1162-LAJ-0895R2 [***] attached hereto. |
|
4. |
Confidentiality. |
Customer and Boeing understand that the information contained in this Supplemental Agreement is considered confidential. Each of Customer and Boeing agree to treat this Supplemental Agreement as confidential and will not, without the prior written consent of the other party, disclose this Supplemental Agreement or any information contained herein to any third parties, other than as required by applicable law or by the Export-Import Bank of the United States.
|
|
2 |
|
The Purchase Agreement shall be deemed amended to the extent herein provided and as amended shall continue in full force and effect.
EXECUTED IN DUPLICATE as of the day and year first above written.
|
THE BOEING COMPANY |
|
LAN AIRLINES S.A. |
|
|
|
|
|
By: [Illegible] |
|
By: [Illegible] |
|
Its Attorney-In-Fact |
|
Its Senior VP Corporate Investments |
|
|
3 |
|
PURCHASE AGREEMENT NUMBER 2126
between
THE BOEING COMPANY
and
LAN Airlines S.A.
Relating to Boeing Model 767-316ER, Model 767-38EF, and Model 767-316F Aircraft
TABLE OF CONTENTS
ARTICLES
|
|
2. |
Delivery Schedule |
SA 16 |
|
|
3. |
Price |
SA 16 |
|
|
4. |
Payment |
SA 16 |
|
|
5. |
Miscellaneous |
SA 16 |
TABLE
|
|
1 |
Aircraft Information Table |
SA 1 |
|
|
2. |
Aircraft Information Table |
SA 1 |
|
|
3. |
Aircraft Information Table |
SA 8 |
|
|
4. |
Aircraft Information Table |
SA 11 |
|
|
5. |
Aircraft Information Table 767-316F Aircraft |
SA 18 |
|
|
6. |
Aircraft Information Table 767-316ER Aircraft |
SA 18 |
EXHIBIT
|
|
A. |
Aircraft Configuration |
|
|
A-1 |
Aircraft Configuration |
SA 1 |
|
|
A-2 |
Aircraft Configuration |
SA 5 |
|
|
A-3 |
Aircraft Configuration |
SA 10 |
|
|
A-4 |
Aircraft Configuration 767-316F Aircraft |
SA 15 |
|
|
A-5 |
Aircraft Configuration 767-316ER Aircraft |
SA 17 |
|
|
B. |
Aircraft Delivery Requirements and Responsibilities |
SA 1 |
SUPPLEMENTAL EXHIBITS
|
|
BFE1. |
BF-E Variables |
SA 1 |
|
|
CS1. |
Customer Support Variables |
SA 1 |
|
|
EEl. |
Engine Escalation/Engine Warranty and Patent Indemnity |
SA 1 |
|
|
EE1-1. |
Engine Escalation/Engine Warranty and Patent Indemnity |
SA 5 |
|
|
EE1-2. |
Engine Escalation/Engine Warranty and Patent Indemnity |
SA 13 |
|
|
SLP1. |
Service Life Policy Components |
LETTER AGREEMENTS
|
|
2126-1 |
Seller Purchased Equipment |
|
|
2126-2R1 |
Cabin Systems Equipment |
SA 17 |
|
|
2126-3R4 |
[***] |
SA 13 |
RESTRICTED LETTER AGREEMENTS
|
|
6-1162-DMH-350 |
[***] |
|
|
6- 1162-DMH-351 |
[***] |
|
|
6- 1162-DMH-472 |
[***] |
SA 1 |
|
|
6-1162-DMH-475 |
[***] |
SA 1 |
|
|
6- 1162-DMH-1031R2 |
[***] |
SA 9 |
|
|
6-1162-LAJ-311 |
[***] |
SA 11 |
|
|
6- 1162-LAJ-0895 |
[***] |
SA 14 |
|
|
6- 1162-LAJ-0895R1 |
[***] |
SA 16 |
|
|
6-1162-LAJ-0895R2 |
[***] |
SA 18 |
|
|
2 |
|
Aircraft Information Table No. 5
to Purchase Agreement No. 2126
Aircraft Delivery, Description, Price and Advance Payments
|
Airframe Model/MTGW: 767-300F 412,000 |
|
Detail Specification: |
D019T002LAN63F-I (4/2004) |
|
Engine Model: CF6-80C2B6F |
|
Airframe Price Base Year: |
Jul-03 |
|
Airframe Price: |
$109,022,000 |
Engine Price Base Year: |
Jul-03 |
|
Optional Features: |
$1,410,200 |
|
|
|
Sub-Total of Airframe and Features: |
$110,432,200 |
Airframe Escalation Data: |
|
|
Engine Price (Per Aircraft): |
$18,424,006 |
Base Year Index (ECI): |
165.00 |
|
Aircraft Basic Price (Excluding BFE/SPE): |
$128,856,206 |
Base Year Index (ICI): |
136.80 |
|
Buyer Furnished Equipment (BFE) Estimate: |
$0 |
Engine Escalation Data: |
|
|
Seller Purchased Equipment (SPE) Estimate: |
$1,418,000 |
Base Year Index (CPI): |
151.980 |
|
Refundable Deposit per Aircraft at Proposal Acceptance: |
$140,000 |
|
|
|
|
|
Escalation |
Escalation |
|
Escalation Estimate |
Advance Payment Per Aircraft (Amts. Due/Mos. Prior to Delivery): |
|||
|
Delivery |
Number of |
Factor |
Factor |
Manufacturer |
Adv Payment Base |
At Signing |
24 Mos. |
21/18/12/9/6 Mos. |
Total |
|
Date |
Aircraft |
(Airframe) |
(Engine) |
Serial Number |
Price Per A/P |
1% |
4% |
5% |
30% |
|
Jul-2005 |
1 |
1.0607 |
1.0690 |
34245 |
$138,381,000 |
$1,243,810 |
$5,535,240 |
$6,919,050 |
$41,514,300 |
|
Oct-2005 |
1 |
1.0689 |
1.0760 |
34246 |
$139,415,000 |
$1,254,150 |
$5,576,600 |
$6,970,750 |
$41,824,500 |
|
Sep-2006 |
1 |
1.1047 |
1.1300** |
34627 |
$144,381,000 |
$1,303,810 |
$5,775,240 |
$7,219,050 |
$43,314,300 |
[***]
|
|
SA No. 18 |
|
|
APR 32392 |
AC Info Table 5 (Freighters) |
|
|
LAN PA2126 |
Boeing Proprietary |
Page 1 |
Aircraft Information Table No. 6
to Purchase Agreement No. 2126
Aircraft Delivery, Description, Price and Advance Payments
|
Airframe Model/MTOW: 767-300ER |
412,000 |
Detail Specification: |
D019T001LAN63E-1 (Jan 20, 2005) |
|
|
Engine Model: CF6-80C2B6F |
|
Airframe Price Base Year/Escalation Formula: |
Jul-03 |
Fixed Factor ECI- W Airframe |
|
Airframe Price: |
$97,098,000 |
Engine Price Base Year/Escalation Formula: |
Jul-03 |
GE CF6-80 (99 rev.) |
|
Optional Features: |
$5,784,000 |
|
|
|
|
Sub-Total of Airframe and Features: |
$102,882,000 |
Airframe Escalation Data: |
|
|
|
Engine Price (Per Aircraft): |
$18,424,006 |
Base Year Index (ECI): |
N/A |
|
|
Aircraft Basic Price (Excluding BFE/SPE): |
$121,306,006 |
Base Year Index (ICI): |
N/A |
|
|
Buyer Furnished Equipment (BFE) Estimate: |
$0 |
Engine Escalation Data: |
|
|
|
Seller Purchased Equipment (SPE) Estimate: |
$5,050,000 |
Base Year Index (CPI): |
151.980 |
|
|
Refundable Deposit per Aircraft at Proposal Acceptance: |
$140,000 |
|
|
|
|
Delivery |
Number of |
Escalation Factor |
Escalation Factor |
Manufacturer |
Escalation Estimate Adv Payment Base |
Advance Payment Per Aircraft (Amts. Due/Mos. Prior to Delivery): |
|||
|
At Signing |
24 Mos. |
21/18/12/9/6 Mos. |
Total |
||||||
|
Date |
Aircraft |
(Airframe) |
(Engine) |
Serial Number |
Price Per A/P |
1% |
4% |
5% |
30% |
|
Jan-2006 |
1 |
1.0854 |
1.0950 |
34626 |
$137,040,000 |
$1,230,400 |
$5,481,600 |
$6,852,000 |
$40,972,000 |
|
May-2006 |
1 |
1.0936 |
1.1220 ** |
34629 |
$138,706,000 |
$1,247,060 |
$5,548,240 |
$6,935,300 |
$41,471,800 |
|
Nov-2006 |
1 |
1.1140 |
1.1320 ** |
34628 |
$140,801,000 |
$1,268,010 |
$5,632,040 |
$7,040,050 |
$42,100,300 |
[***]
|
|
SA No. 18 |
|
|
APR 32479 |
AC Info Table 6 (Passenger) |
|
|
LAN PA2126 |
Boeing Proprietary |
Page 1 of 1 |
Boeing Commercial Airplanes
P.O. Box 3707
Seattle, WA 98124-2207
6-1162-LAJ-0895R2
LAN Airlines S.A.
Santiago, Chile
|
Subject: |
[***] |
|
Reference: |
Purchase Agreement No. 2126 (The Purchase Agreement) between The Boeing Company (Boeing) and LAN Airlines S.A. (formerly known as Lan Chile S.A.) (Customer) relating to Model 767-316F and Model 767-316ER aircraft (hereinafter referred to as “Aircraft”) |
This letter agreement (Letter Agreement) amends the Purchase Agreement. All terms used but not defined in this Letter Agreement shall have the same meaning as in the Purchase Agreement. This Letter Agreement supersedes and replaces in its entirety Letter Agreement 6-1162-LAJ-0895R1 dated November 11, 2004.
|
1. |
Credit Memorandum. |
In consideration of Customer purchasing the Aircraft, Boeing will provide concurrent with the delivery of each Model 767-316F and each Model 767-316ER Aircraft contained on the Aircraft Information Tables No. 5 and 6 of the Purchase Agreement a credit memorandum equal to [***] of the escalated Airframe Price. This credit memorandum may be used for the purchase of any Boeing goods and services including aircraft but the credit memorandum may not be used for advance payments.
|
2. |
Export License. |
Customer understands and confirms that it is Customer’s responsibility to obtain any required Export License from the relevant U.S. authority. Without accepting any liability for any failure to do so, Boeing will use reasonable endeavors to alert Customer to any regulatory changes of which Boeing becomes aware and which require Buyer to obtain such Export License.
|
3. |
Warranty Modification. |
Notwithstanding paragraph 3.2 of Part 2 of Exhibit C to the AGTA, Boeing agrees that the warranty period for a Corrected Boeing Product resulting from a defect in material or workmanship is 6 months or the remainder of the initial warranty period, whichever is longer.
|
4. |
[***] |
|
5. |
[***] |
|
6. |
[***] |
1
6-1162-LAJ-0895R2
Page 2
|
7. |
Payment Due at Signing of Supplemental Agreement No. 14. |
Notwithstanding payment requirements described in Supplemental Agreement No. 14, Customer may defer the payment(s) that would otherwise be required at signing to any date on or before May 6, 2004.
|
8. |
[***] |
|
9. |
[***] |
|
10. |
[***] |
|
11. |
[***] |
|
12. |
[***] |
|
13. |
[***] |
|
14. |
[***] |
|
15. |
[***] |
|
16. |
Aircraft Information Tables and Advance Payments. |
If either of Aircraft Information Table No. 5 or 6 is changed Boeing will provide Customer with each such revised aircraft information table which will be incorporated into Purchase Agreement 2126 via Supplemental Agreement. If a change to the Purchase Agreement causes the Advance Payments being held for a particular aircraft to change, Boeing will invoice Customer if more advance payments are required and Boeing will provide a refund to Customer if Boeing is holding more advance payments than are required because of the change. Each such payment or refund as the case may be will be made within [***] business days of the signing of a Supplemental Agreement.
|
17. |
[***] |
|
18. |
Confidentiality. |
Customer and Boeing understand that the information contained in this Letter Agreement is considered confidential. Each of Customer and Boeing agree to treat this Letter Agreement as confidential and will not, without the prior written consent of the other party, disclose this Letter Agreement or any information contained herein to any third parties, other than as required by applicable law or the Export-Import Bank of the United States.
If the foregoing correctly sets forth your understanding of our agreement with respect to the matters treated above, please indicate your acceptance and approval below.
Very truly yours,
2
6-1162-LAJ-0895R2
Page 3
THE BOEING COMPANY
|
By: |
|
|
|
|
|
Its |
Attorney-In-Fact |
|
|
|
ACCEPTED AND AGREED TO this
Date: March 10, 2005
LAN Airlines S.A.
|
By: |
|
|
|
|
|
Its |
Senior VP Corporate Investments |
|
|
|
3
Supplemental Agreement No. 19
To
Purchase Agreement No. 2126
Between
THE BOEING COMPANY
and
LAN AIRLINES S.A.
(Formerly known as Lan Chile S.A.)
Relating to Boeing Model 767-316ER, Model 767-38EF, and Model 767-316F Aircraft
THIS SUPPLEMENTAL AGREEMENT, entered into as of the 1st day of April 2005, by and between THE BOEING COMPANY, a Delaware corporation (hereinafter called Boeing), and LAN Airlines S.A, a Chile corporation (hereinafter called Customer);
W I T N E S S E T H:
WHEREAS, the parties entered into that certain Purchase Agreement No. 2126, dated as of January 30, 1998 relating to the purchase and sale of Boeing Model 767-316ER, Model 767-38EF, and Model 767-316F aircraft (hereinafter referred to as “Aircraft”), which agreement, as amended and supplemented, together with all exhibits, specifications and letter agreements related or attached thereto, is hereinafter called the “Purchase Agreement;” and
WHEREAS, Customer and Boeing have agreed to accelerate the scheduled delivery month of the November 2006 767-300ER Aircraft to June 2006, and
WHEREAS, Boeing and Customer have agreed to amend the Purchase Agreement to incorporate the above changes;
NOW THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto agree to amend the Purchase Agreement as follows:
|
1. |
Aircraft Description and Delivery Position for 2006 767-316ER Passenger Aircraft. This Supplemental Agreement documents the acceleration of the November 2006 767-316ER Passenger Aircraft to a scheduled delivery month of June 2006. |
|
2. |
Aircraft Description and Delivery Position for 2006 767-316F Freighter Aircraft. This Supplemental Agreement documents the Customer decision to finalize the September 2006 Aircraft position as a 767-316F Freighter Aircraft. |
|
P.A. 2126 |
Page 1 |
SA 19 |
|
3. |
Miscellaneous. |
|
|
|
3.1. |
Table of Contents. Remove and replace in its entirety the Table of Contents, with the revised Table of Contents attached hereto. |
|
|
3.2. |
Aircraft Information Table No 6 (Passenger Aircraft). Remove and replace in its entirety the Aircraft Information Table No 6, with the revised Aircraft Information Table No 6 attached hereto. |
|
4. |
Confidentiality. |
Customer and Boeing understand that the information contained in this Supplemental Agreement is considered confidential. Each of Customer and Boeing agree to treat this Supplemental Agreement as confidential and will not, without the prior written consent of the other party, disclose this Supplemental Agreement or any information contained herein to any third parties, other than as required by applicable law or by the Export-Import Bank of the United States.
The Purchase Agreement shall be deemed amended to the extent herein provided and as amended shall continue in full force and effect.
EXECUTED IN DUPLICATE as of the day and year first above written.
|
THE BOEING COMPANY |
LAN AIRLINES S.A. |
|
By [Illegible] |
By [Illegible] |
|
Its Attorney-In-Fact |
Its Senior VP Corporate Investments |
|
P.A. 2126 |
2 |
SA 19 |
PURCHASE AGREEMENT NUMBER 2126
Between
THE BOEING COMPANY
And
LAN Airlines S.A.
Relating to Boeing Model 767-316ER, Model 767-38EF, and Model 767-316F Aircraft
|
P.A. 2126 |
|
SA 19 |
TABLE OF CONTENTS
|
ARTICLES |
|
|
|
1 |
Quantity, Model and Description |
SA 16 |
|
2. |
Delivery Schedule |
SA 16 |
|
3. |
Price |
SA 16 |
|
4. |
Payment |
SA 16 |
|
5. |
Miscellaneous |
SA 16 |
|
|
|
|
|
TABLE |
|
|
|
1. |
Aircraft Information Table |
SA 1 |
|
2. |
Aircraft Information Table |
SA I |
|
3. |
Aircraft Information Table |
SA 8 |
|
4. |
Aircraft Information Table |
SA 11 |
|
5. |
Aircraft Information Table 767-316F Aircraft |
SA 18 |
|
6. |
Aircraft Information Table 767-316ER Aircraft |
SA 19 |
|
|
|
|
|
EXHIBIT |
|
|
|
A. |
Aircraft Configuration |
|
|
A-1 |
Aircraft Configuration |
SA 1 |
|
A-2 |
Aircraft Configuration |
SA 5 |
|
A-3 |
Aircraft Configuration |
SA 10 |
|
A-4 |
Aircraft Configuration 767-316F Aircraft |
SA 15 |
|
A-5 |
Aircraft Configuration 767-316ER Aircraft |
SA 17 |
|
|
|
|
|
B. |
Aircraft Delivery Requirements and Responsibilities |
SA 1 |
|
|
|
|
|
SUPPLEMENTAL EXHIBITS |
|
|
|
BFE1. |
BFE Variables |
SA I |
|
CS 1. |
Customer Support Variables |
SA 1 |
|
EEl. |
Engine Escalation/Engine Warranty and Patent Indemnity |
SA 1 |
|
EE1-1. |
Engine Escalation/Engine Warranty and Patent Indemnity |
SA 5 |
|
EE1-2. |
Engine Escalation/Engine Warranty and Patent Indemnity |
SA 13 |
|
SLP 1. |
Service Life Policy Components |
|
|
|
|
|
|
LETTER AGREEMENTS |
|
|
|
2126-1 |
Seller Purchased Equipment |
|
|
2126-2R1 |
Cabin Systems Equipment |
SA 17 |
|
2126-3R4 |
[***] |
SA |
|
P.A. 2126 |
1 |
SA 19 |
|
RESTRICTED LETTER AGREEMENTS |
|
|
|
6-1162-DMH-350 |
[***] |
|
|
6-1162-DMH-351 |
[***] |
|
|
6 -1162-DMH-472 |
[***] |
SA 1 |
|
6- 1162-DMH-475 |
[***] |
SA 1 |
|
6-1162-DMH-1031R2 |
[***] |
SA 9 |
|
6-1162-LAJ-311 |
[***] |
SA 11 |
|
6-1 162-LAJ-0895 |
[***] |
SA 14 |
|
6-1162-LAJ-0895R I |
[***] |
SA 16 |
|
6-1162-LAJ-0895R2 |
[***] |
SA 18 |
|
P.A. 2126 |
2 |
SA 19 |
Aircraft Information Table No. 6
to Purchase Agreement No. 2126
Aircraft Delivery, Description, Price and Advance Payments
|
Airframe Model/MTOW: |
767-300ER |
412,000 |
Detail Specification: D019T00 ILAN63E-1 (Jan 20, 2005) |
||||
|
Engine Model: |
CF6-80C2B6F |
|
Airframe Price Base Year/Escalation Formula: |
Jul-03 Fixed Factor ECI-W Airframe |
|||
|
Airframe Price: |
|
$97,098,000 |
Engine Price Base Year/Escalation Formula: |
Jul-03 GE CF6-80 (99 rev.) |
|||
|
Optional Features: |
|
$5,784,000 |
|
|
|||
|
Sub-Total of Airframe and Features: |
|
$102,882,000 |
Airframe Escalation Data: |
|
|||
|
Engine Price (Per Aircraft): |
|
$18,424,006 |
Base Year Index (ECI): |
N/A |
|||
|
Aircraft Basic Price (Excluding BFE/SPE): |
$121,306,006 |
Base Year Index (ICI): |
N/A |
||||
|
Buyer Furnished Equipment (BFE) Estimate: |
$0 |
Engine Escalation Data: |
|
||||
|
Seller Purchased Equipment (SPE) Estimate: |
$5,050,000 |
Base Year Index (CPI): |
151.980 |
||||
|
Refundable Deposit/Aircraft at Proposal Accept: |
$140,000 |
|
|
||||
|
|
|
|
|
|
Escalation |
Advance Payment Per Aircraft (Amts. Due/Mos. Prior to Delivery): |
|||
|
Delivery |
Number of |
Escalation |
Escalation |
Manufacturer |
Adv Payment |
At Signing |
24 Mos. |
21/18/12/9/6 Mos. |
Total |
|
Jan-2006 |
1 |
1 0854 |
1.0950 |
34626 |
$137,040,000 |
$1,230,400 |
$5,481,600 |
$6,852,000 |
$40,972,000 |
|
May-2006 |
1 |
1.0936 |
1.1220 -* |
34629 |
$138,706,000 |
$1,247,060 |
$5,548,240 |
$6,935,300 |
$4 I ,47 1, 800 |
|
Jun-2006 |
1 |
1.1240 |
1.0960 *- |
34628 |
$139,002,000 |
$1,250,020 |
$5,560,080 |
$6,950,100 |
$41,560,600 |
|
Total |
3 |
[***]
|
|
SA No. 19 |
|
|
APR 32479 |
AC Info Table 6 (Passenger) |
|
|
LAN PA2126 |
Boeing Proprietary |
Page 1 of 1 |
Supplemental Agreement No. 20
to
Purchase Agreement No. 2126
between
THE BOEING COMPANY
and
LAN AIRLINES S.A.
(Formerly known as Lan Chile S.A.)
Relating to Boeing Model 767-316ER, Model 767-38EF, and Model 767-316F Aircraft
THIS SUPPLEMENTAL AGREEMENT, entered into as of the 28th day of April, 2005, by and between THE BOEING COMPANY, a Delaware corporation (hereinafter called Boeing), and LAN Airlines S.A., a Chile corporation (hereinafter called Customer);
W I T N E S S E T H:
WHEREAS, the parties entered into that certain Purchase Agreement No. 2126, dated as of January 30, 1998 relating to the purchase and sale of Boeing Model 767-316ER, Model 767-38EF, and Model 767-316F aircraft (hereinafter referred to as “Aircraft”), which agreement, as amended and supplemented, together with all exhibits, specifications and letter agreements related or attached thereto, is hereinafter called the “Purchase Agreement;” and
WHEREAS, Customer and Boeing have come to agreement on the purchase and sale of three 767-300 Aircraft with scheduled delivery months of October 2006, March 2007, and September 2007, and
WHEREAS, Boeing and Customer have agreed to amend the Purchase Agreement to incorporate the above changes:
NOW THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto agree to amend the Purchase Agreement as follows:
|
1. |
Quantity, Model, and Description. |
|
|
1.1 |
Purchase of Three Additional Boeing Model 767 Aircraft. This Supplemental Agreement amends the Purchase Agreement to reflect the purchase by customer of two 767-316F Aircraft and one 767-316ER Aircraft. |
|
|
1.2 |
Aircraft Description for 767-316F Aircraft. Boeing will manufacture and sell to Customer, and Customer will purchase from Boeing, the Aircraft described in the attached Aircraft Information Table No. 7. This attached Aircraft Information Table No. 7 includes the detail specification number of Customer’s Aircraft. |
|
P.A. 2126 |
Page 1 |
SA 20 |
|
|
1.3 |
Aircraft Description for 767-316ER Aircraft. Boeing will manufacture and sell to Customer, and Customer will purchase from Boeing, the Aircraft described in the attached Aircraft Information Table No. 8. This attached Aircraft Information Table No. 8 includes the detail specification number of Customer’s Aircraft. |
|
2. |
Aircraft Delivery Schedule. The scheduled delivery month of each of the additional Aircraft is set forth in the attached Aircraft Information Tables No. 7 and 8. |
|
3. |
Price. The Aircraft Basic Price and each component thereof and the Advance Payment Base Price for each of the additional Aircraft. |
|
|
3.1 |
Payment. |
|
|
3.1.1 |
Boeing acknowledges that Customer has paid deposit payments to Boeing in the amount of $145,000 for each of the Aircraft in Tables No. 7 and 8. |
|
|
3.1.2 |
Customer will make Advance Payments to Boeing in the amount of 30% of the Advance Payment Base Price for each of the Aircraft. These payments will begin with a payment of 1%, less any deposit previously paid to Boeing. Additional payments for the Aircraft are due on the first business day of the months and in the amounts set forth in the attached Aircraft Information Tables No. 7 and 8. |
|
|
3.1.3 |
The total amount of Advance Payments due upon the date of this agreement will include all Advance Payments that are or were due on or before such date in accordance with the Advance Payment Schedule set forth in the attached Aircraft Information Tables No. 7 and 8. |
|
|
3.1.4 |
Any payments due to Boeing shall be made via wire transfer to the Boeing bank account as identified below. |
[***]
|
4. |
Miscellaneous. |
|
|
4.1 |
Table of Contents. Remove and replace in its entirety the Table of Contents, with the Table of Contents attached hereto, to reflect the changes made by this Supplemental Agreement No. 20. |
|
|
4.2 |
Letter Agreement. Remove and replace in its entirety Letter Agreement 6-1162-LAJ-0895R2 entitled [***] and replace it with the revised Letter Agreement 6-1162-LAJ-0895R3 entitled [***] and attached hereto. |
|
5. |
Confidentiality. |
Customer and Boeing understand that the information contained in this Supplemental Agreement is considered confidential. Each of Customer and Boeing agree to treat this Supplemental Agreement as confidential and will not, without the prior written consent
|
P.A. 2126 |
Page 2 |
SA 20 |
of the other party, disclose this Supplemental Agreement or any information contained herein to any third parties, other than as required by applicable law or by the Export-Import Bank of the United States.
The Purchase Agreement shall be deemed amended to the extent herein provided and as amended shall continue in full force and effect.
EXECUTED IN DUPLICATE as of the day and year first above written.
|
THE BOEING COMPANY |
LAN AIRLINES S.A. |
|
By [Illegible] |
By [Illegible] |
|
Its Attorney-In-Fact |
Its Senior VP Corporate Investments |
|
P.A. 2126 |
Page 3 |
SA 20 |
PURCHASE AGREEMENT NUMBER 2126
between
THE BOEING COMPANY
and
LAN Airlines S.A.
Relating to Boeing Model 767-316ER, Model 767-38EF, and Model 767-316F Aircraft
|
P.A. 2126 |
Page 4 |
SA 20 |
TABLE OF CONTENTS
|
ARTICLES |
|
|
|
1. |
Quantity, Model and Description |
SA 16 |
|
2. |
Delivery Schedule |
SA 16 |
|
3. |
Price |
SA 16 |
|
4. |
Payment |
SA 16 |
|
5. |
Miscellaneous |
SA 16 |
|
TABLE |
|
|
|
1. |
Aircraft Information Table |
SA 1 |
|
2. |
Aircraft Information Table |
SA 1 |
|
3. |
Aircraft Information Table |
SA 8 |
|
4. |
Aircraft Information Table |
SA 11 |
|
5. |
Aircraft Information Table 767-316F Aircraft |
SA 18 |
|
6. |
Aircraft Information Table 767-316ER Aircraft |
SA 19 |
|
7. |
Aircraft Information Table 767-316F Aircraft |
SA 20 |
|
8. |
Aircraft Information Table 767-316ER Aircraft |
SA 20 |
|
EXHIBIT |
|
|
|
A. |
Aircraft Configuration |
|
|
A-1 |
Aircraft Configuration |
SA 1 |
|
A-2 |
Aircraft Configuration |
SA 5 |
|
A-3 |
Aircraft Configuration |
SA 10 |
|
A-4 |
Aircraft Configuration 767-316F Aircraft |
SA 15 |
|
A-5 |
Aircraft Configuration 767-316ER Aircraft |
SA 17 |
|
|
|
|
|
B. |
Aircraft Delivery Requirements and Responsibilities |
SA 1 |
|
SUPPLEMENTAL EXHIBITS |
|
|
|
BFE1. |
BFE Variables |
SA 1 |
|
CS1. |
Customer Support Variables |
SA 1 |
|
EE1 . |
Engine Escalation/Engine Warranty and Patent Indemnity |
SA 1 |
|
EE1-1. |
Engine Escalation/Engine Warranty and Patent Indemnity |
SA 5 |
|
EE1-2. |
Engine Escalation/Engine Warranty and Patent Indemnity |
SA 13 |
|
SLP1. |
Service Life Policy Components |
|
|
LETTER AGREEMENTS |
|
|
|
2126-1 |
Seller Purchased Equipment |
|
|
2126-2R1 |
Cabin Systems Equipment |
SA 17 |
|
2126-3R4 |
[***] |
SA 13 |
|
P.A. 2126 |
Page 1 |
SA 20 |
|
RESTRICTED LETTER AGREEMENTS |
|
|
|
6-1162-DMH-350 |
[***] |
|
|
6-1162-DMH-351 |
[***] |
|
|
6-1162-DMH-472 |
[***] |
SA 1 |
|
6-1162-DMH-475 |
[***] |
SA 1 |
|
6-1162-DMH-1031R2 |
[***] |
SA 9 |
|
6-1162-LAJ-311 |
[***] |
SA 11 |
|
6-1162-LAJ-0895 |
[***] |
SA 14 |
|
6-1162-LAJ-0895R1 |
[***] |
SA 16 |
|
6-1162-LAJ-956 |
[***] |
|
|
6-1162-LAJ-0895R2 |
[***] |
SA 18 |
|
6-1162-LAJ-0895R3 |
[***] |
SA 20 |
|
P.A. 2126 |
Page 1 |
SA 20 |
Aircraft Information Table No. 7 to Purchase Agreement No. 2126
Aircraft Delivery, Description, Price and Advance Payments
|
Airframe Model/MTOW: 767-300F |
412,000 |
Detail Specification: |
D019T002LAN63F-1 (4/2004) |
|
|
Engine Model: CF6-80C2B6F |
|
Airframe Price Base Year/Escalation Formula: |
Jul-04 |
Fixed Factor ECI-W Airframe |
|
Airframe Price: |
$112,952,000 |
Engine Price Base Year/Escalation Formula: |
Jul-04 |
GE CF6-80 & GE90 (99 rev.) |
|
Optional Features: |
$1,459,900 |
|
|
|
|
Sub-Total of Airframe and Features: |
$114,411,900 |
Airframe Escalation Data: |
|
|
|
Engine Price (Per Aircraft): |
$19,145,298 |
Base Year Index (ECI): |
N/A |
|
|
Aircraft Basic Price (Excluding BFE/SPE): |
$133,557,198 |
Base Year Index (ICI): |
N/A |
|
|
Buyer Furnished Equipment (BFE) Estimate: |
$0 |
Engine Escalation Data: |
|
|
|
Seller Purchased Equipment (SPE) Estimate: |
$1,468,000 |
Base Year Index (CPI): |
157.160 |
|
|
Refundable Deposit/Aircraft at Proposal Accept: |
$145,000 |
|
|
|
|
|
|
Escalation |
Escalation |
|
Escalation Estimate |
Advance Payment Per Aircraft (Amts. Due/Mos. Prior to Delivery): |
|||
|
Delivery |
Number of |
Factor |
Factor |
Manufacturer |
Adv Payment Base |
At Signing |
24 Mos. |
21/18/12/9/6 Mos. |
Total |
|
Date |
Aircraft |
(Airframe) |
(Engine) |
Serial Number |
Price Per A/P |
1% |
4% |
5% |
30% |
|
Mar-2007 |
1 |
1.1008 |
1.098 |
35230 |
$148,582,000 |
$1,340,820 |
$5,943,280 |
$7,429,100 |
$44,574.600 |
|
Sep-2007 |
1 |
1.1173 |
1.117 |
35231 |
$150,858,000 |
$1,363,580 |
$6,034,320 |
$7,542,900 |
$45,257,400 |
|
Total: |
2 |
|
LAN PA2126 |
|
SA NO. 20
Page
1 |
Aircraft Information Table No. 8 to Purchase Agreement No. 2126
Aircraft Delivery, Description, Price and Advance Payments
|
Airframe Model/MTOW: 767-300ER |
412,000 |
Detail Specification: D019T001LAN63E-1 (01/20/2005) |
|
|
|
Engine Model: CF6-80C2B6F |
|
Airframe Price Base Year/Escalation Formula: |
Jul-04 |
Fixed Factor ECI-W Airframe |
|
Airframe Price: |
$100,608,000 |
Engine Price Base Year/Escalation Formula: |
Jul-04 |
GE CF6-80 & GE90 (99 rev.) |
|
Optional Features: |
$5,764,100 |
|
|
|
|
Sub-Total of Airframe and Features: |
$106,372,100 |
Airframe Escalation Data: |
|
|
|
Engine Price (Per Aircraft): |
$19,145,298 |
Base Year Index (ECI): |
N/A |
|
|
Aircraft Basic Price (Excluding BFE/SPE): |
$125,517,398 |
Base Year Index (ICI): |
N/A |
|
|
Buyer Furnished Equipment (BFE) Estimate: |
$0 |
Engine Escalation Data: |
|
|
|
Seller Purchased Equipment (SPE) Estimate: |
$5,298,000 |
Base Year Index (CPI): |
157.160 |
|
|
Refundable Deposit/Aircraft at Proposal Accept: |
$145,000 |
|
|
|
|
|
|
Escalation |
Escalation |
|
Escalation Estimate |
Advance Payment Per Aircraft (Amts. Due/Mos. Prior to Delivery): |
|||
|
Delivery |
Number of |
Factor |
Factor |
Manufacturer |
Adv Payment Base |
At Signing |
24 Mos. |
21/18/12/9/6 Mos. |
Total |
|
Date |
Aircraft |
(Airframe) |
(Engine) |
Serial Number |
Price Per A/P |
1% |
4% |
5% |
30% |
|
Oct-2006 |
1 |
1.0889 |
1.088 |
35229 |
$142,428,000 |
$1,279,280 |
$5,697,120 |
$7,121,400 |
$42,728,400 |
|
Total: |
1 |
|
LAN PA2126 |
|
SA NO. 20
Page
1 |
Boeing Commercial Airplanes
P.O. Box 3707
Seattle, WA 98124-2207
6-1162-LAJ-0895R3
LAN Airlines S.A.
Santiago, Chile
|
Subject: |
[***] |
|
Reference: |
Purchase Agreement No. 2126 (The Purchase Agreement) between The Boeing Company (Boeing) and LAN Airlines S.A. (formerly known as Lan Chile S.A.) (Customer) relating to Model 767-316F and Model 767-316ER aircraft (hereinafter referred to as “Aircraft”) |
This letter agreement (Letter Agreement) amends the Purchase Agreement. All terms used but not defined in this Letter Agreement shall have the same meaning as in the Purchase Agreement. This Letter Agreement supersedes and replaces in its entirety Letter Agreement 6-1162-LAJ-0895R2 dated March 10, 2005.
|
1. |
Credit Memorandum. |
In consideration of Customer purchasing the 767 Aircraft, Boeing will provide concurrent with the delivery of each Model 767-316F and each Model 767-316ER Aircraft contained on the Aircraft Information Tables No. 5, 6, 7, and 8 of the Purchase Agreement a credit memorandum equal to [***] of the escalated Airframe Price. This credit memorandum may be used for the purchase of any Boeing goods and services including aircraft but the credit memorandum may not be used for advance payments.
|
2. |
Export License. |
Customer understands and confirms that it is Customer’s responsibility to obtain any required Export License from the relevant U.S. authority. Without accepting any liability for any failure to do so, Boeing will use reasonable endeavors to alert Customer to any regulatory changes of which Boeing becomes aware and which require Buyer to obtain such Export License.
|
3. |
Warranty Modification. |
Notwithstanding paragraph 3.2 of Part 2 of Exhibit C to the AGTA, Boeing agrees that the warranty period for a Corrected Boeing Product resulting from a defect in material or workmanship is 6 months or the remainder of the initial warranty period, whichever is longer.
|
4. |
[***] |
|
5. |
[***] |
|
6. |
[***] |
|
|
|
|
6-1162-LAJ-0895R3
Page 2
|
7. |
[***] |
|
8. |
[***] |
|
9. |
[***] |
|
10. |
[***] |
|
11. |
[***] |
|
11.1 |
[***] |
|
11.2 |
[***] |
|
12. |
[***] |
|
13. |
[***] |
|
13.1 |
[***] |
|
13.2 |
[***] |
|
14. |
[***] |
|
15. |
[***] |
|
16. |
[***] |
|
17. |
[***] |
|
18. |
Aircraft Information Tables and Advance Payments. |
If any Aircraft Information Table is changed Boeing will provide Customer with each such revised aircraft information table which will be incorporated into Purchase Agreement 2126 via Supplemental Agreement. If a change to the Purchase Agreement causes the Advance Payments being held for a particular aircraft to change, Boeing will invoice Customer if more advance payments are required and Boeing will provide a refund to Customer if Boeing is holding more advance payments than are required under the Purchase Agreement because of the change. Each such payment or refund as the case may be will be made within 10 business days of the signing of a Supplemental Agreement.
|
19. |
[***] |
|
20. |
[***] |
|
21. |
[***] |
|
|
|
|
6-1162-LAJ-0895R3
Page 3
|
22 |
Confidentiality. |
Customer and Boeing understand that the information contained in this Letter Agreement is considered confidential. Each of Customer and Boeing agree to treat this Letter Agreement as confidential and will not, without the prior written consent of the other party, disclose this Letter Agreement or any information contained herein to any third parties, other than as required by applicable law or the Export-Import Bank of the United States. If the foregoing correctly sets forth your understanding of our agreement with respect to the matters treated above, please indicate your acceptance and approval below.
Very truly yours,
THE BOEING COMPANY
|
By: |
|
|
|
|
|
Its |
Attorney-In-Fact |
|
|
|
ACCEPTED AND AGREED TO this Date: 28 April, 2005
LAN Airlines S.A.
|
By: |
|
|
|
|
|
Its |
Senior VP Corporate Investments |
|
|
|
|
|
|
|
Supplemental Agreement No. 21 (“SA 21”)
to
Purchase Agreement No. 2126
between
THE BOEING COMPANY
and
LAN AIRLINES S.A.
(Formerly known as Lan Chile S.A.)
Relating to Boeing Model 767-316ER, Model 767-38EF, and Model 767-316F Aircraft
THIS SUPPLEMENTAL AGREEMENT, entered into as of the 20th day of July 2005, by and between THE BOEING COMPANY, a Delaware corporation (hereinafter called “Boeing”), and LAN Airlines S.A, a Chile corporation (hereinafter called “Customer”);
W I T N E S S E T H:
WHEREAS, the parties entered into that certain Purchase Agreement No. 2126, dated as of January 30, 1998, relating to the purchase and sale of Boeing Model 767-316ER, Model 767-38EF, and Model 767-316F aircraft (hereinafter referred to as “Aircraft”), which agreement, including all tables, exhibits, supplemental exhibits and specifications thereto, together with all letter agreements then or thereafter entered into that by their terms constitute part of such purchase agreement and as such purchase agreement may be amended or supplemented from time to time, is hereinafter called the “Purchase Agreement”;
WHEREAS, Customer and Boeing have come to agreement on the purchase and sale of three 767-300 Aircraft with scheduled delivery months of December 2007, May 2008, and October 2008; and
WHEREAS, Boeing and Customer have agreed to amend the Purchase Agreement to incorporate the above changes;
NOW THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto agree to amend the Purchase Agreement as follows:
|
1. |
QUANTITY, MODEL, AND DESCRIPTION. |
|
|
1.1 |
Purchase of Three Additional Boeing Model 767 Aircraft. |
This Supplemental Agreement amends the Purchase Agreement to reflect the purchase by Customer of three 767-316ER Aircraft.
|
|
P.A. 2126 |
SA 21 |
|||
|
|
1 |
|
|
||
|
|
1.2 |
Aircraft Description for 767-316ER Aircraft. |
Boeing will manufacture and sell to Customer, and Customer will purchase from Boeing, the Aircraft described in the attached Aircraft Information Table No. 8, including identification data for the applicable Detail Specification.
|
2. |
AIRCRAFT DELIVERY SCHEDULE. |
The scheduled delivery month of each of the additional Aircraft is set forth in the attached Aircraft Information Table No. 8.
|
3. |
PRICE. |
|
|
3.1 |
Aircraft Basic Price. |
The Aircraft Basic Price is subject to escalation dollars, and each component thereof and the Advance Payment Base Price for each of the additional Aircraft are set forth in Aircraft Information Table No. 8.
|
4. |
PAYMENT. |
|
|
4.1.1. |
Boeing acknowledges receipt of funds from Customer in the amount of $145,000 for each of the Aircraft in Table No. 8. (hereinafter referred to as “Deposit”). |
|
|
4.1.2. |
Customer will make Advance Payments to Boeing in the amount of 30% of the Advance Payment Base Price for each of the Aircraft. These payments will begin with a payment of 1%, less any Deposit previously paid to Boeing. Additional payments for the Aircraft are due on the first business day of the months and in the amounts set forth in the attached Aircraft Information Table No. 8. |
|
|
4.1.3. |
The total amount of Advance Payments due upon the date of this agreement will include all Advance Payments that are or were due on or before such date in accordance with the Advance Payment Schedule set forth in the attached Aircraft Information Table No. 8. |
|
|
4.1.4. |
Any payments due by Customer to Boeing shall be made via wire transfer to the Boeing bank account identified below. |
[***]
|
5. |
MISCELLANEOUS. |
|
|
5.1 |
Table of Contents. |
Remove and replace in its entirety the Table of Contents, with the Table of Contents attached hereto, to reflect the changes made by this Supplemental Agreement No. 21.
|
|
P.A. 2126 |
SA 21 |
|||
|
|
2 |
|
|
||
|
|
5.2 |
Letter Agreement. |
Remove and replace in its entirety Letter Agreement 6-1162-LAJ-0895R3, entitled [***], and replace it with the revised Letter Agreement 6-1162-LAJ-0895R4, entitled [***], and attached hereto.
|
|
5.3 |
Aircraft Information Table No. 6 Error Correction. |
Remove and replace in its entirety Aircraft Information Table No. 6 last provided in SA 19 with Aircraft Information Table No. 6 to correct an error in the table. The changed elements are bold-faced.
|
6. |
CONFIDENTIALITY. |
Customer and Boeing understand that the information contained in this Supplemental Agreement is considered confidential. Each of Customer and Boeing agree to treat this Supplemental Agreement as confidential and will not, without the prior written consent of the other party, disclose this Supplemental Agreement or any information contained herein to any third parties, other than as required by applicable law or by the Export-Import Bank of the United States.
The Purchase Agreement shall be deemed amended to the extent herein provided and as amended shall continue in full force and effect.
EXECUTED IN DUPLICATE as of the day and year first above written.
|
THE BOEING COMPANY |
LAN AIRLINES S.A. |
By: [Illegible] |
By: [Illegible] |
|
Its Attorney-In-Fact |
Its Senior VP Corporate Investments |
|
|
P.A. 2126 |
SA 21 |
|||
|
|
3 |
|
|
||
PURCHASE AGREEMENT NUMBER 2126
between
THE BOEING COMPANY
and
LAN Airlines S.A.
Relating to Boeing Model 767-316ER, Model 767-38EF, and Model 767-316F Aircraft
|
|
P.A. 2126 |
SA 21 |
|||
|
|
|
|
|
||
TABLE OF CONTENTS
|
ARTICLES |
|
Supplemental |
|
|
1. |
Quantity, Model and Description |
21 |
|
|
2. |
Delivery Schedule |
21 |
|
|
3. |
Price |
21 |
|
|
4. |
Payment |
21 |
|
|
5. |
Miscellaneous |
21 |
|
|
6. |
Confidentiality |
21 |
|
|
TABLE |
|
|
|
|
1. |
Aircraft Information Table |
1 |
|
|
2. |
Aircraft Information Table |
1 |
|
|
3. |
Aircraft Information Table |
8 |
|
|
4. |
Aircraft Information Table |
11 |
|
|
5. |
Aircraft Information Table 767-316F Aircraft |
18 |
|
|
6. |
Aircraft Information Table 767-316ER Aircraft |
21 |
|
|
7. |
Aircraft Information Table 767-316F Aircraft |
20 |
|
|
8. |
Aircraft Information Table 767-316ER Aircraft |
21 |
|
|
EXHIBIT |
|
|
|
|
A. |
Aircraft Configuration |
|
|
|
A-1 |
Aircraft Configuration |
1 |
|
|
A-2 |
Aircraft Configuration |
5 |
|
|
A-3 |
Aircraft Configuration |
10 |
|
|
A-4 |
Aircraft Configuration 767-316F Aircraft |
15 |
|
|
A-5 |
Aircraft Configuration 767-316ER Aircraft |
17 |
|
|
B. |
Aircraft Delivery Requirements and Responsibilities |
1 |
|
|
SUPPLEMENTAL EXHIBITS |
|
||
|
BFE1. |
BFE Variables |
1 |
|
|
CS1. |
Customer Support Variables |
1 |
|
|
EEl. |
Engine Escalation/Engine Warranty and Patent Indemnity |
1 |
|
|
EE1-1. |
Engine Escalation/Engine Warranty and Patent Indemnity |
5 |
|
|
EE1-2. |
Engine Escalation/Engine Warranty and Patent Indemnity |
13 |
|
|
SLP1. |
Service Life Policy Components |
|
|
|
LETTER AGREEMENTS |
|
||
|
2126-1 |
Seller Purchased Equipment |
|
|
|
2126-2R1 |
Cabin Systems Equipment |
17 |
|
|
2126-3R4 |
[***] |
13 |
|
|
|
P.A. No. 2126 |
SA 21 |
|||
|
|
1 |
|
|
||
|
RESTRICTED LETTER AGREEMENTS |
Supplemental Agreement(s) |
||
|
6-1162-DMH-350 |
[***] |
|
|
|
6-1162-DMH-351 |
[***] |
|
|
|
6-1162-DMH-472 |
[***] |
1 |
|
|
6-1162-DMH-475 |
[***] |
1 |
|
|
6-1162-DMH-1031R2 |
[***] |
9 |
|
|
6-1162-LAJ-311 |
[***] |
11 |
|
|
6-1162-LAJ-0895 |
[***] |
14 |
|
|
6-1162-LAJ-0895R1 |
[***] |
16 |
|
|
6-1162-LAJ-956 |
[***] |
|
|
|
6-1162-LAJ-0895R4 |
[***] |
21 |
|
|
|
P.A. No. 2126 |
SA 21 |
|||
|
|
2 |
|
|
||
Aircraft Information Table No. 6
to Purchase Agreement No. 2126
Aircraft Delivery, Description, Price and Advance Payments
|
Airframe Model/MTOW: |
767-300ER |
412,000 |
Detail Specification: D019T001LAN63E-1 (Jan 20, 2005) |
||
|
Engine Model: |
CF6-80C2B6F |
|
Airframe Price Base Year/Escalation Formula: |
Jul-03
|
Fixed Factor ECI-W Airframe |
|
Airframe Price: |
$97,098,000 |
Engine Price Base Year/Escalation Formula: |
Jul-03 |
GE CF6-80 (99 rev.) |
|
|
Optional Features: |
$5 784 000 |
|
|
||
|
Sub-Total of Airframe and Features: |
$102,882,000 |
Airframe Escalation Data: |
|
||
|
Engine Price (Per Aircraft): |
$18,424,006 |
Base Year Index (ECI): |
N/A
|
|
|
|
Aircraft Basic Price (Excluding BFE/SPE): |
$121,306,006 |
Base Year Index (ICI): |
N/A
|
|
|
|
Buyer Furnished Equipment (BFE) Estimate: |
$0 |
Engine Escalation Data; |
|
||
|
Seller Purchased Equipment (SPE) Estimate: |
$5,050,000 |
Base Year Index (CPI): |
151.980
|
|
|
|
|
|
|
|
||
|
Refundable Deposit/Aircraft at Proposal Accept: |
$140,000 |
|
|
||
|
Delivery |
Number of |
Escalation |
Escalation |
Manufacturer |
Escalation Estimate |
Advance Payment Per Aircraft (Amts. Due/Mos. Prior to Delivery): |
|||
|
At Signing |
24 Mos. |
21/18/12/9/6 5% |
Total |
||||||
|
Jan-2006 |
1 |
1.0854 |
1.0950 |
34626 |
$137,040,000 |
$1,230,400 |
$5,481,600 |
$6,852,000 |
$40,972,000 |
|
May-2006 |
1 |
1.0936 |
1.1220 ** |
34629 |
$138,706,000 |
$1,247,060 |
$5,548,240 |
$6,935,300 |
$41,471,800 |
|
Jun-2006 |
1 |
1.0960 |
1.124 ** |
34628 |
$139,002,000 |
$1,250,020 |
$5,560,080 |
$6,950,100 |
$41,560,600 |
|
Total |
3 |
|
|
|
|
|
|
|
|
|
[***] |
Bold-face type in the escalation factor columns denotes changed element. |
|
APR 32479-1F |
SA 21 |
|
|
LAN PA 2126 |
Boeing Proprietary |
Page 1 |
|
|
|
|
Aircraft Information Table No. 8
to Purchase Agreement No. 2126
Aircraft Delivery, Description, Price and Advance Payments
|
Airframe Model/MTOW: |
767-300ER |
412,000 |
Detail Specification: D019T001-E (11/5/2003) |
|||
|
Engine Model: |
CF6-80C2B6F |
|
Airframe Price Base Year/Escalation Formula: |
Jul-04 |
Fixed Factor ECI-W Airframe |
|
|
Airframe Price: |
$100,608,000 |
Engine Price Base Year/Escalation Formula: |
Jul-04 |
GE CF6-80 & GE90 (99 rev.) |
||
|
Optional Features: |
$5,764,100 |
|
|
|||
|
Sub-Total of Airframe and Features: |
$106,372,100 |
Airframe Escalation Data; |
|
|||
|
Engine Price (Per Aircraft): |
$19,145,298 |
Base Year Index (ECI): |
N/A
|
|
||
|
Aircraft Basic Price (Excluding BFE/SPE): |
$125 517 398 |
Base Year Index (ICI): |
N/A
|
|
||
|
Buyer Furnished Equipment (BFE) Estimate: |
$0 |
Engine Escalation Data; |
|
|||
|
Seller Purchased Equipment (SPE) Estimate: |
$5,298,000 |
Base Year Index (CPI): |
157.160
|
|
||
|
|
|
|
|
|||
|
Refundable Deposit/Aircraft at Proposal Acceptance: |
$145,000 |
|
|
|||
|
Delivery |
Number of |
Escalation |
Escalation |
Manufacturer |
Escalation Estimate |
Advance Payment Per Aircraft (Amts. Due/Mos. Prior to Delivery): |
|||
|
At Signing |
24 Mos. |
21/18/12/9/6 |
Total |
||||||
|
Oct-2006 |
1 |
1.0889 |
1.088 |
35229 |
$142,428,000 |
$1,279,280 |
$5,697,120 |
$7,121,400 |
$42,728,400 |
|
Dec-2007 |
1 |
1.1251 |
1.125 |
35697 |
$147,179,000 |
$1,326,790 |
$5,887,160 |
$7,358,950 |
$44,153,700 |
|
May-2008 |
1 |
1.142 |
1.142 |
35696 |
$149,391,000 |
$1,348,910 |
$5,975,640 |
$7,469,550 |
$44,817,300 |
|
Oct-2008 |
1 |
1.1555 |
1.157 |
35698 |
$151,186,000 |
$1,366,860 |
$6,047,440 |
$7,559,300 |
$45,355,800 |
|
Total |
4 |
|
|
|
|
|
|
|
|
|
APR 34779-1F |
SA 21 |
|
|
LAN PA 2126 |
Boeing Proprietary |
Page 1 |
|
|
|
|
6-1162-LAJ-0895R4
Page 1
Boeing Commercial Airplanes
P.O. Box 3707
Seattle, WA 98124-2207
6-1162-LAJ-0895R4
LAN Airlines S.A.
Santiago, Chile
|
|
Subject: |
[***] |
|
Reference: |
Purchase Agreement No. 2126 (The Purchase Agreement) between The Boeing Company (Boeing) and LAN Airlines S.A. (formerly known as Lan Chile S.A.) (“Customer”) relating to Model 767-316F and Model 767-316ER aircraft (hereinafter referred to as “Aircraft”) |
This letter agreement (“Letter Agreement”) amends the Purchase Agreement. All terms used but not defined in this Letter Agreement shall have the same meaning as in the Purchase Agreement. This Letter Agreement supersedes and replaces in its entirety Letter Agreement 6-1162-LAJ-0895R3 dated 28th of April, 2005.
|
|
1. |
Credit Memorandum. |
In consideration of Customer purchasing the 767 Aircraft, Boeing will provide concurrent with the delivery of each Model 767-316F and each Model 767-316ER Aircraft contained on the Aircraft Information Tables No. 5, 6, 7, and 8 of the Purchase Agreement a credit memorandum equal to [***] of the escalated Airframe Price. This credit memorandum may be used for the purchase of any Boeing goods and services including aircraft but the credit memorandum may not be used for advance payments.
|
|
2. |
Export License. |
Customer understands and confirms that it is Customer’s responsibility to obtain any required Export License from the relevant U.S. authority. Without accepting any liability for any failure to do so, Boeing will use reasonable endeavors to alert Customer to any regulatory changes of which Boeing becomes aware and which require Buyer to obtain such Export License.
|
|
3. |
Warranty Modification. |
Notwithstanding paragraph 3.2 of Part 2 of Exhibit C to the AGTA, Boeing agrees that the warranty period for a Corrected Boeing Product resulting from a defect in material or workmanship is 6 months or the remainder of the initial warranty period, whichever is longer.
|
|
|
|
6-1162-LAJ-0895R4
Page 2
|
4. |
[***]. |
||
|
|
5. |
[***]. |
|
|
6. |
[***] |
|
|
7. |
Payment Due at Signing of Supplemental Agreement No. 21. |
Notwithstanding payment requirements described in Supplemental Agreement No. 21, Customer may defer the payment(s) that would otherwise be required at signing to any date on or before July 22, 2005.
|
|
8. |
[***] |
|
|
9. |
[***] |
|
|
10. |
[***] |
|
|
11. |
[***] |
|
|
11.1 |
[***] |
|
|
11.2 |
[***] |
|
|
12. |
[***] |
|
|
13 |
[***] |
|
|
13.1 |
[***] |
|
|
13.2 |
[***] |
|
|
14. |
[***] |
|
|
15. |
[***] |
|
|
15.1 |
[***] |
|
|
15.2 |
[***] |
|
|
16. |
[***] |
|
|
17. |
[***] |
|
|
18. |
Aircraft Information Tables and Advance Payments. |
If any Aircraft Information Table is changed Boeing will provide Customer with each such revised aircraft information table which will be incorporated into Purchase Agreement 2126 via Supplemental Agreement. If a change to the Purchase Agreement causes the Advance Payments being held for a particular aircraft to change, Boeing will invoice Customer if more advance payments are required and
|
|
|
|
6-1162-LAJ-0895R4
Page 3
Boeing will provide a refund to Customer if Boeing is holding more advance payments than are required under the Purchase Agreement because of the change. Each such payment or refund as the case may be will be made within 10 business days of the signing of a Supplemental Agreement.
|
|
19. |
[***] |
|
|
20. |
[***] |
|
|
20.2 |
[***] |
|
|
21. |
Confidentiality. |
Customer and Boeing understand that the information contained in this Letter Agreement is considered confidential. Each of Customer and Boeing agree to treat this Letter Agreement as confidential and will not, without the prior written consent of the other party, disclose this Letter Agreement or any information contained herein to any third parties, other than as required by applicable law or the Export-Import Bank of the United States. If the foregoing correctly sets forth your understanding of our agreement with respect to the matters treated above, please indicate your acceptance and approval below.
|
|
|
|
6-1162-LAJ-0895R4
Page 4
Very truly yours,
THE BOEING COMPANY
|
By: [Illegible] |
|
|
Its Attorney-In-Fact |
|
ACCEPTED AND AGREED TO this Date: July 20, 2005
LAN Airlines S.A.
|
By: [Illegible] |
|
|
Its Senior VP Corporate Investments |
|
|
|
|
|
Exhibit to Letter Agreement 6-1162-LAJ-0895R4
Paragraph 20.2
Substitute Aircraft Delivery, Description, Price and Advance Payments
|
Airframe Model/MTOW: 767-300F |
412,000 |
Detail Specification: |
D019T002-E (8/28/2003) |
|
|
Engine Model: CF6-80C2B6F |
|
Airframe Price Base Year/Escalation Formula: |
Jul-04 Fixed Factor EC1-W Airframe |
|
|
Airframe Price: |
$112,952,000 |
Engine Price Base Year/Escalation Formula: |
Jul-04 GE CF6-80 & GE90 (99 rev.) |
|
|
Optional Features: |
$1 459 900 |
|
|
|
|
Sub-Total of Airframe and Features: |
$114,411,900 |
Airframe Escalation Data: |
|
|
|
Engine Price (Per Aircraft): |
$19,145,298 |
Base Year Index (ECI): |
N/A |
|
|
Aircraft Basic Price (Excluding BFE/SPE): |
$133 557 198 |
Base Year Index (ICI): |
N/A |
|
|
Buyer Furnished Equipment (BFE) Estimate: |
$0 |
Engine Escalation Data:. |
|
|
|
Seller Purchased Equipment (SPE) Estimate: |
$1,468,000 |
Base Year Index (CPI): |
157.160 |
|
|
|
|
|
|
|
|
Refundable Deposit/Aircraft at Proposal Acceptance: |
$145,000 |
|
|
|
|
Delivery |
Number of |
Escalation |
Escalation |
|
Escalation Estimate |
Advance Payment Per Aircraft (Amts. Due/Mos. Prior to Delivery): |
|||
|
At Signing |
24 Mos. |
21/18/12/9/6 Mos. |
Total |
||||||
|
Oct-2008 |
1 |
1.1555 |
1.157 |
|
$156,050,000 |
$1,415,500 |
$6,242,000 |
$7,802,500 |
$46,815,000 |
|
Total |
1 |
|
|
|
|
|
|
|
|
|
APR 34778-1F |
SA 21 |
|
|
LAN PA 2126 |
Boeing Proprietary |
Page 1 |
|
|
|
|
Supplemental Agreement No. 22 (“SA 22”)
to
Purchase Agreement No. 2126
between
THE BOEING COMPANY
and
LAN AIRLINES S.A.
Relating to Boeing Model 767-316ER, Model 767-38EF, and Model 767-316F Aircraft
THIS SUPPLEMENTAL AGREEMENT, entered into as of the 31st day of March 2006, by and between THE BOEING COMPANY, a Delaware corporation (hereinafter called “Boeing”), and LAN Airlines S.A, a Chilean corporation (hereinafter called “Customer”);
W I T N E S S E T H:
WHEREAS, the parties entered into that certain Purchase Agreement No. 2126, dated as of January 30, 1998 relating to the purchase and sale of Boeing Model 767-316ER, Model 767-38EF, and Model 767-316F aircraft (hereinafter referred to as “Aircraft”), which agreement, including all tables, exhibits, supplemental exhibits and specifications thereto, together with all letter agreements then or thereafter entered into that by their terms constitute part of such purchase agreement and as such purchase agreement may be amended or supplemented from time to time, is hereinafter called the “Purchase Agreement;”
WHEREAS, Customer and Boeing have come to agreement on the purchase and sale of one new 767-316ER Aircraft having a scheduled delivery month of November 2007 by requiring two corresponding contractual delivery schedule changes;
WHEREAS, Customer and Boeing have come to agreement on the purchase and sale of two other new Boeing Model 767-316ER Aircraft with scheduled delivery months of July 2008 and September 2008;
WHEREAS, Customer and Boeing have come to agreement on the substitution of its May-07 contract month (formerly December 2007 contract month), an Aircraft bearing manufacturer serial number 35230, from a 767-300 Freighter Aircraft to a 767-300ER aircraft pursuant to 23rd of February 2006 LAN acceptance of Boeing Substitution offer (the May-07 Substituted Aircraft);
WHEREAS, Customer and Boeing have come to agreement on the substitution of the Oct-07 contract month (formerly Sep-07 contract month), an Aircraft bearing manufacturer serial number 35231 767-316F from a 767-300 Freighter Aircraft to a 767-
|
|
|
|
300ER aircraft pursuant to 30th of March 2006 LAN acceptance of Boeing Substitution offer (the Oct-07 Substituted Aircraft);
WHEREAS, Customer and Boeing have come to agreement to alter the Flexible Decision Date from the 1st of March to the 1st of April 2006 pursuant to revised Boeing Substitution Offer extended via electronic mail on the 20th of January of 2006;
WHEREAS, Exhibit A-6 to Purchase Agreement Number 2126 reflects all Options which are mutually agreed upon between Boeing and Customer for incorporation into the 767-316ER aircraft configuration (the Special Features) in 2004 base year dollars, and Boeing and Customer mutually agree that a revised exhibit to Purchase Agreement Number 2126 (Exhibit A-6) is necessary to reflect the cost of the Special Features in 2004 base year dollars;
WHEREAS, Exhibit A-7 to Purchase Agreement Number 2126 reflects all Options which are mutually agreed upon between Boeing and Customer for incorporation into the 767-316ER aircraft configuration (the Special Features) in 2005 base year dollars, and Boeing and Customer mutually agree that a revised exhibit to Purchase Agreement Number 2126 (Exhibit A-6) is necessary to reflect the cost of the Special Features in 2005 base year dollars;
WHEREAS, Boeing proposed and Customer has elected to incorporate an escalation formula to Purchase Agreement No. 2126 which shall be applicable to the attached Aircraft Information Table 9 (Table 9) and which formula shall be reflected in Supplemental Exhibit AE1 (AE1) to the Purchase Agreement;
WHEREAS, Boeing and Customer have agreed to amend the Purchase Agreement to incorporate the above changes;
NOW THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto agree to amend the Purchase Agreement as follows:
|
1. |
Quantity, Model, and Description. |
|
|
1.1 |
Purchase of Three Additional Boeing Model 767 Aircraft. |
This Supplemental Agreement amends the Purchase Agreement to reflect the purchase by Customer of three 767-316ER Aircraft.
|
|
1.2 |
Aircraft Description for 767-316ER Aircraft. |
Boeing will manufacturer and sell to Customer, and Customer will purchase from Boeing, the Aircraft described in the attached Aircraft Information Table No. 8, including identification data for the applicable Detail Specification.
|
|
1.3 |
Substitution. |
1.3.1 With the 23rd of February 2006 LAN acceptance of the Boeing Substitution offer, Customer and Boeing have agreed to the substitution of the May-07 Substituted Aircraft from a 767-300 Freighter Aircraft to a 767-300ER aircraft.
|
|
Page 2 |
|
1.3.2 With the 30th of March 2006 LAN acceptance of the Boeing Substitution offer, Customer and Boeing have agreed to the substitution of the Oct-07 Substituted Aircraft from a 767-300 Freighter Aircraft to a 767-300ER aircraft.
|
2. |
Aircraft Delivery Schedule. |
The scheduled delivery month of each of the additional Aircraft is set forth in the attached Aircraft Information Table No. 8 (Table 8).
|
|
2.1.1 |
Delivery Schedule Changes. |
With respect to the 767-316ER Aircraft having a scheduled delivery month of November 2007, Boeing and Customer have agreed to the two corresponding contractual delivery schedule changes as follows:
|
Original Contract |
Revised |
Manufacturer Serial Number |
|
Dec-07 |
Apr-08 |
35697 |
|
Mar 07 |
May-07 |
35230 |
|
3. |
Price. |
|
|
3.1 |
Aircraft Basic Price. |
The Aircraft Basic Price, in subject to escalation dollars, and each component thereof and the Advance Payment Base Price for each of the additional Aircraft are set forth in Table 9 and for the Substituted Aircraft in Table 8.
|
4. |
Payment. |
4.1.1 Boeing acknowledges receipt of funds from Customer in the amount of $150,000 for each of the Aircraft in Table 9 (hereinafter referred to as “Deposit”).
4.1.2 Customer will make Advance Payments to Boeing in the amount of 30% of the Advance Payment Base Price for each of the Aircraft. These payments will begin with a payment of 1%, less any Deposit previously paid to Boeing. Additional payments for the Aircraft are due on the first business day of the months and in the amounts set forth in the attached Table 9.
4.1.3 The total amount of Advance Payments due upon the date of this agreement will include all Advance Payments that are or were due on or before such date in accordance with the Advance Payment Schedule set forth in the attached Table 9.
4.1.4 Any payments due by Customer to Boeing shall be made via wire transfer to the Boeing bank account identified below.
[***]
|
|
Page 3 |
|
|
5. |
Miscellaneous. |
|
|
5.1 |
Table of Contents. |
Remove and replace in its entirety the Table of Contents, with the Table of Contents attached hereto, to reflect the changes made by this Supplemental Agreement No. 22.
|
|
5.2 |
Letter Agreement. |
Remove and replace in its entirety Letter Agreement 6-1162-LAJ-0895R4, entitled [***], and replace it with the revised Letter Agreement 6-1162-LAJ-0895R5, entitled [***], and attached hereto.
|
|
5.3 |
Incorporation of Exhibits A-6 and A-7 and Supplemental Exhibit AE1. |
The Purchase Agreement is amended to incorporate
a. Exhibit A-6 to reflect the cost of the Special Features for the 767-316ER Aircraft in 2004 base year dollars.
b. Exhibit A-7 to reflect the cost of the Special Features for the 767-316ER Aircraft in 2005 base year dollars.
c. Supplemental Exhibit AE1 to set forth the alternate escalation formula applicable to Table 9 Aircraft.
|
6. |
Confidentiality. |
Customer and Boeing understand that the information contained in this Supplemental Agreement is considered confidential. Each of Customer and Boeing agree to treat this Supplemental Agreement as confidential and will not, without the prior written consent of the other party, disclose this Supplemental Agreement or any information contained herein to any third parties, other than as required by applicable law or by the Export-Import Bank of the United States.
The Purchase Agreement shall be deemed amended to the extent herein provided and as amended shall continue in full force and effect.
EXECUTED IN DUPLICATE as of the day and year first above written.
|
THE BOEING COMPANY |
LAN AIRLINES S.A. |
|
By |
[Illegible] |
By |
[Illegible] |
|
Its |
Attorney-In-Fact |
Its |
Senior VP Corporate Investments |
|
|
Page 4 |
|
PURCHASE AGREEMENT NUMBER 2126
between
THE BOEING COMPANY
and
LAN Airlines S.A.
Relating to Boeing Model 767-316ER, Model 767-38EF, and Model 767-316F Aircraft
|
|
|
|
TABLE OF CONTENTS
|
|
Supplemental |
|
ARTICLES |
Agreement |
|
1. |
Quantity, Model and Description |
22 |
|
2. |
Delivery Schedule |
22 |
|
3. |
Price |
22 |
|
4. |
Payment |
22 |
|
5. |
Miscellaneous |
22 |
|
6. |
Confidentiality |
22 |
|
TABLE |
||
|
1. |
Aircraft Information Table 767-300ER Aircraft – 1995$ |
1 |
|
2. |
Aircraft Information Table 767-300F Aircraft – 1997$ |
1 |
|
3. |
Aircraft Information Table 767-300F Aircraft – 1998$ |
8 |
|
4. |
Aircraft Information Table 767-300F Aircraft – 1999$ |
11 |
|
5. |
Aircraft Information Table 767-300F Aircraft – 2003$ |
18 |
|
6. |
Aircraft Information Table 767-316ER Aircraft – 2003$ |
21 |
|
7. |
Aircraft Information Table 767-300F Aircraft – 2004$ |
20 |
|
8. |
Aircraft Information Table 767-316ER Aircraft – 2004 $ |
22 |
|
9. |
Aircraft Information Table 767-316ER Aircraft – 2005 $ |
22 |
EXHIBIT
|
A. |
Aircraft Configuration |
|
A-1 |
Aircraft Configuration |
1 |
|
A-2 |
Aircraft Configuration |
5 |
|
A-3 |
Aircraft Configuration |
10 |
|
A-4 |
Aircraft Configuration 767-316F Aircraft – 2003$ |
15 |
|
A-5 |
Aircraft Configuration 767-316ER Aircraft – 2003$ |
17 |
|
A-6 |
Aircraft Configuration 767-316ER Aircraft – 2004$ |
22 |
|
A-7 |
Aircraft Configuration 767-316ER Aircraft – 2005$ |
22 |
|
B. |
Aircraft Delivery Requirements and Responsibilities |
1 |
SUPPLEMENTAL EXHIBITS
|
BFE1. |
BFE Variables |
1 |
|
CS1. |
Customer Support Variables |
1 |
|
EE1. |
Engine Escalation/Engine Warranty and Patent Indemnity |
1 |
|
EE1-1. |
Engine Escalation/Engine Warranty and Patent Indemnity |
5 |
|
EE1-2. |
Engine Escalation/Engine Warranty and Patent Indemnity |
13 |
|
SLP1. |
Service Life Policy Components |
|
AE1 |
Escalation adjustment - airframe and optional features |
22 |
|
|
Page 6 |
|
|
LETTER AGREEMENTS |
Supplemental |
|
|
2126-1 |
Seller Purchased Equipment |
|
|
2126-2R1 |
Cabin Systems Equipment |
17 |
|
|
2126-3R4 |
[***] |
13 |
|
|
Supplemental |
|
RESTRICTED LETTER AGREEMENTS |
Agreement(s) |
|
|
6-1162-DMH-350 |
[***] |
|
|
6-1162-DMH-351 |
[***] |
|
|
6-1162-DMH-472 |
[***] |
1 |
|
|
6-1162-DMH-475 |
[***] |
1 |
|
|
6-1162-DMH-1031R2 |
[***] |
9 |
|
|
6-1162-LAJ-311 |
[***] |
11 |
|
|
6-1162-LAJ-0895 |
[***] |
14 |
|
|
6-1162-LAJ-0895R1 |
[***] |
16 |
|
|
6-1162-LAJ-956 |
[***] |
|
|
6-1162-LAJ-0895R5 |
[***] |
22 |
|
|
Page 7 |
|
Aircraft Information Table No. 8
to Purchase Agreement No. 2126
Aircraft Delivery, Description, Price and Advance Payments
|
Airframe Model/MTOW: 767-300ER |
412,000 |
|
Detail Specification: D019T001-E (11/5/2003) |
|
|
Engine Model: CF6-80C2B6F |
|
|
Airframe Price Base Year/Escalation Formula: Jul-04 |
Fixed Factor ECI-W Airframe |
|
Airframe Price: |
$ 100,608,000 |
|
Engine Price Base Year/Escalation Formula: Jul-04 |
GE CF6-80 & GE90 (99 rev.) |
|
Optional Features: |
$ 5,764,100 |
|
|
|
|
Sub-Total of Airframe and Features: |
$ 106,372,100 |
|
Airframe Escalation Data: |
|
|
Engine Price (Per Aircraft): |
$ 19,145,298 |
|
Base Year Index (ECI): N/A |
|
|
Aircraft Basic Price (Excluding BFE/SPE): |
$ 125,517,398 |
|
Base Year Index (ICI): N/A |
|
|
Buyer Furnished Equipment (BFE) Estimate: |
$ 0 |
|
Engine Escalation Data: |
|
|
Seller Purchased Equipment (SPE) Estimate: |
$ 5,298,000 |
|
Base Year Index (CPI): 157.160 |
|
|
Refundable Deposit/Aircraft at Proposal Acceptance: |
$ 145,000 |
|
|
|
|
|
|
|
|
|
|
Advance Payment Per Aircraft (Amts. Due/Mos. Prior to Delivery |
|||
|
Delivery Date |
Month for |
Escalation |
Escalation |
Manufacturer |
Escalation Estimate |
At Signing |
24 Mos. |
21/18/12/9/6 Mos. |
Total |
|
Nov-2006 |
Oct-2006 |
1.0889 |
1.088 |
35229 |
$142,428,000 |
$1,279,280 |
$5,697,120 |
$7,121,400 |
$42,728,400 |
|
May-2007 |
Mar-2007 |
1.1008 |
1.098 |
35230 |
$143,948,000 |
$1,294,480 |
$5,757,920 |
$7,197,400 |
$43,184,400 |
|
Oct-2007 |
Sep-2007 |
1.1173 |
1.098 |
35231 |
$145,791,000 |
$1,312,910 |
$5,831,640 |
$7,289,550 |
$43,737,300 |
|
Apr-2008 |
Dec-2007 |
1.1251 |
1.125 |
35697 |
$147,179,000 |
$1,326,790 |
$5,887,160 |
$7,358,950 |
$44,153,700 |
|
May-2008 |
May-2008 |
1.142 |
1.142 |
35696 |
$149,391,000 |
$1,348,910 |
$5,975,640 |
$7,469,550 |
$44,817,300 |
|
Oct-2008 |
Oct-2008 |
1.1555 |
1.157 |
35698 |
$151,186,000 |
$1,366,860 |
$6,047,440 |
$7,559,300 |
$45,355,800 |
|
Total: |
6 |
|
|
|
|
|
|
|
|
|
APR 34779-1F |
SA 22 |
Page 1 |
Aircraft Information Table No. 9
to Purchase Agreement No. 2126
Aircraft Delivery, Description, Price and Advance Payments
|
Airframe Model/MTOW: 767-300ER |
412000 pounds |
|
Detail Specification: D019T001 (12/22/2003) |
|
|
Engine Model/Thrust: CF6-80C2B6F |
60200 pounds |
|
Airframe Price Base Year/Escalation Formula: Jul-05 |
Fixed Factor ECI-MFG / CPI |
|
Airframe Price: |
$ 105,407,000 |
|
Engine Price Base Year/Escalation Formula: Jul-05 |
GE CF6-80 & GE90 (99 rev.) |
|
Optional Features: |
$ 6,039,200 |
|
|
|
|
Sub-Total of Airframe and Features: |
$ 111,446,200 |
|
Airframe Escalation Data: |
|
|
Engine Price (Per Aircraft): |
$ 20,010,080 |
|
Base Year Index (ECI): N/A |
|
|
Aircraft Basic Price (Excluding BFE/SPE): |
$ 131,456,280 |
|
Base Year Index (ICI): N/A |
|
|
Buyer Furnished Equipment (BFE) Estimate: |
$ 0 |
|
Engine Escalation Data: |
|
|
Seller Purchased Equipment (SPE) Estimate: |
$ 6,400,000 |
|
Base Year Index (CPI): 163.430 |
|
|
Refundable Deposit/Aircraft at Proposal Accept: |
$ 150,000 |
|
|
|
|
Delivery Date |
Number of Aircraft |
Escalation
Factor |
|
|
|
Advance Payment Per Aircraft (Amts. Due/Mos. Prior to Delivery) |
|||
|
Escalation |
Manufacturer |
Escalation |
At Signing |
24 Mos. |
21/18/12/9/6 Mos. |
Total |
|||
|
Nov-2007 |
1 |
1.0786 |
1.103 |
36710 |
$149,180,000 |
$1,341,800 |
$5,967,200 |
$7,459,000 |
$44,754,000 |
|
Jul-2008 |
1 |
1.1022 |
1.135 |
36711 |
$152,601,000 |
$1,376,010 |
$6,104,040 |
$7,630,050 |
$45,780,300 |
|
Sep-2008 |
1 |
1.1069 |
1.141 |
36712 |
$153,275,000 |
$1,382,750 |
$6,131,000 |
$7,663,750 |
$45,982,500 |
|
Total: |
3 |
|
|
|
|
|
|
|
|
|
APR 34779-1F |
SA 22 |
Page 1 |
AIRCRAFT CONFIGURATION
between
THE BOEING COMPANY
and
LAN AIRLINES S.A.
Exhibit A-6 to Purchase Agreement Number 2126
|
P.A. No. 2126 |
Exhibit A-6, Page 1 |
SA-22 |
AIRCRAFT CONFIGURATION
relating to
BOEING MODEL 767-300ER AIRCRAFT
THE LAN AIRCRAFT
The Detail Specification is Boeing Detail Specification D019-T001LAN63E-1 dated as of January 20, 2005. Such Detail Specification will be comprised of Boeing Configuration Specification D019T001, Revision E dated November 5, 2003 to incorporate the Options listed below, including the effects on Manufacturer’s Empty Weight (MEW) and Operating Empty Weight (OEW). Such Options are set forth in Boeing Document D019- T001LAN63E-1. As soon as practicable, Boeing will furnish to Customer copies of the Detail Specification, which copies will reflect such Options. The Aircraft Basic Price reflects and includes all effects of such Options, except such Aircraft Basic Price does not include the price effects of any Buyer Furnished Equipment or Seller Purchased Equipment.
|
|
Exhibit A-6, Page 1 |
|
Exhibit A-C
Purchase Agreement No. @ 2126
Page 2
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Title |
2004 |
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Exhibit A-6, Page 2 |
|
Exhibit A-C
Purchase Agreement No. @ 2126
Page 3
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2004 |
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Exhibit A-6, Page 3 |
|
Exhibit A-C
Purchase Agreement No. @ 2126
Page 4
|
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Title |
2004 |
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Exhibit A-6, Page 4 |
|
Exhibit A-C
Purchase Agreement No. @ 2126
Page 5
|
CR |
Title |
2004 |
|
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Exhibit A-6, Page 5 |
|
Exhibit A-C
Purchase Agreement No. @ 2126
Page 6
|
CR |
Title |
2004 |
|
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|
Exhibit A-6, Page 6 |
|
Exhibit A-C
Purchase Agreement No. @ 2126
Page 7
|
CR |
Title |
2004 |
|
[***] |
[***] |
[***] |
|
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[***] |
|
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|
|
Exhibit A-6, Page 7 |
|
AIRCRAFT CONFIGURATION
between
THE BOEING COMPANY
and
LAN AIRLINES S.A.
Exhibit A-7 to Purchase Agreement Number 2126
|
|
Exhibit A-7, Page 1 |
|
AIRCRAFT CONFIGURATION
relating to
BOEING MODEL 767-300ER AIRCRAFT
THE LAN AIRCRAFT
The Detail Specification is Boeing Detail Specification D019-T001LAN63E-1 dated as of January 20, 2005. Such Detail Specification will be comprised of Boeing Configuration Specification D019T001, Revision E dated November 5, 2003 to incorporate the Options listed below, including the effects on Manufacturer’s Empty Weight (MEW) and Operating Empty Weight (OEW). Such Options are set forth in Boeing Document D019- T001LAN63E-1. As soon as practicable, Boeing will furnish to Customer copies of the Detail Specification, which copies will reflect such Options. The Aircraft Basic Price reflects and includes all effects of such Options, except such Aircraft Basic Price does not include the price effects of any Buyer Furnished Equipment or Seller Purchased Equipment.
|
|
Exhibit A-7, Page 1 |
|
|
CR |
Title |
2005 |
|
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[***] |
[***] |
|
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[***] |
|
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Exhibit A-7, Page 2 |
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CR |
Title |
2005 |
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[***] |
[***] |
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Exhibit A-7, Page 3 |
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CR |
Title |
2005 |
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Exhibit A-7, Page 4 |
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CR |
Title |
2005 |
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Exhibit A-7, Page 5 |
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CR |
Title |
2005 |
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Exhibit A-7, Page 6 |
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CR |
Title |
2005 |
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|
Exhibit A-7, Page 7 |
|
ESCALATION ADJUSTMENT
AIRFRAME AND OPTIONAL FEATURES
between
THE BOEING COMPANY
and
LAN AIRLINES S.A.
Supplemental Exhibit AE1 to Purchase Agreement Number 2126
|
P.A. No. 2126 |
AE1 |
SA 22 |
|
1. |
Formula. |
Airframe and Optional Features price adjustments (Airframe Price Adjustment) are used to allow prices to be stated in current year dollars at the signing of this Purchase Agreement and to adjust the amount to be paid by Customer at delivery for the effects of economic fluctuation. The Airframe Price Adjustment will be determined at the time of Aircraft delivery in accordance with the following formula:
Pa = (P) (L + M) – P
Where:
|
|
Pa = |
Airframe Price Adjustment. (For Models 717-200, 737-600, 737-700, 737-800, 737-900, 777-200LR and 777-300ER the Airframe Price includes the Engine Price at its basic thrust level.) |
|
L = |
|
where ECIb is the base year index (as set forth in Table 1 of this Purchase Agreement) |
|
M = |
|
where CPIb is the base year index (as set forth in Table 1 of this Purchase Agreement) |
|
|
P = |
Airframe Price plus Optional Features Price (as set forth in Table 1 of this Purchase Agreement). |
ECI is a value determined using the U.S. Department of Labor, Bureau of Labor Statistics Employment Cost Index Manufacturing – Total Compensation (BLS Series ID ECU12402I), calculated by establishing a three-month arithmetic average value (expressed as a decimal and rounded to the nearest tenth) using the values for the 11th, 12th and 13th months prior to the month of scheduled delivery of the applicable Aircraft. As the Employment Cost Index values are only released on a quarterly basis, the value released for the first quarter will be used for the months of January, February and March; the value released for the second quarter will be used for the months of April, May and June; the value released for the third quarter will be used for the months of July, August and September; the value released for the fourth quarter will be used for the months of October, November and December.
CPI is a value determined using the U.S. Department of Labor, Bureau of Labor Statistics Consumer Price Index (BLS Series ID CUUR0000SA0), calculated as a 3-month arithmetic average of the released monthly values (expressed as a decimal and rounded to the nearest tenth) using the values for the 11th, 12th and 13th months prior to the month of scheduled delivery of the applicable Aircraft.
|
P.A. No. 2126 |
AE1 - 1 |
SA 22 |
As an example, for an Aircraft scheduled to be delivered in the month of July, the months June, July and August of the preceding year will be utilized in determining the value of ECI and CPI.
|
Note: |
i. In determining the values of L and M, all calculations and resulting values will be expressed as a decimal rounded to the nearest ten-thousandth. |
|
|
ii. .65 is the numeric ratio attributed to labor in the Airframe Price Adjustment formula. |
|
|
iii. .35 is the numeric ratio attributed to materials in the Airframe Price Adjustment formula. |
|
|
iv. The denominators (base year indices) are the actual average values reported by the U.S. Department of Labor, Bureau of Labor Statistics. The actual average values are calculated as a 3-month arithmetic average of the released monthly values (expressed as a decimal and rounded to the nearest tenth) using the values for the 11th, 12th and 13th months prior to the airframe base year. The applicable base year and corresponding denominator is provided by Boeing in Table 1 of this Purchase Agreement. |
|
|
v. The final value of Pa will be rounded to the nearest dollar. |
|
|
vi. The Airframe Price Adjustment will not be made if it will result in a decrease in the Aircraft Basic Price. |
|
2. |
Values to be Utilized in the Event of Unavailability. |
2.1 If the Bureau of Labor Statistics substantially revises the methodology used for the determination of the values to be used to determine the ECI and CPI values (in contrast to benchmark adjustments or other corrections of previously released values), or for any reason has not released values needed to determine the applicable Airframe Price Adjustment, the parties will, prior to the delivery of any such Aircraft, select a substitute from other Bureau of Labor Statistics data or similar data reported by non-governmental organizations. Such substitute will result in the same adjustment, insofar as possible, as would have been calculated utilizing the original values adjusted for fluctuation during the applicable time period. However, if within 24 months after delivery of the Aircraft the Bureau of Labor Statistics should resume releasing values for the months needed to determine the Airframe Price Adjustment, such values will be used to determine any increase or decrease in the Airframe Price Adjustment for the Aircraft from that determined at the time of delivery of the Aircraft.
2.2 Notwithstanding Article 2.1 above, if prior to the scheduled delivery month of an Aircraft the Bureau of Labor Statistics changes the base year for determination of the ECI and CPI values as defined above, such re-based values will be incorporated in the Airframe Price Adjustment calculation.
2.3 In the event escalation provisions are made non-enforceable or otherwise rendered void by any agency of the United States Government, the parties agree, to the extent they may
|
P.A. No. 2126 |
AE1 - 2 |
SA-22 |
lawfully do so, to equitably adjust the Aircraft Price of any affected Aircraft to reflect an allowance for increases or decreases consistent with the applicable provisions of paragraph 1 of this Supplemental Exhibit AE1 in labor compensation and material costs occurring since August of the year prior to the price base year shown in the Purchase Agreement.
2.4 If within 12 months of Aircraft delivery the published index values are revised due to an acknowledged error by the Bureau of Labor Statistics, the Airframe Price Adjustment will be re-calculated using the revised index values (this does not include those values noted as preliminary by the Bureau of Labor Statistics). A credit memorandum or supplemental invoice will be issued for the Airframe Price Adjustment difference. Interest charges will not apply for the period of original invoice to issuance of credit memorandum or supplemental invoice.
|
Note: |
i. The values released by the Bureau of Labor Statistics and available to Boeing 30 days prior to the first day of the scheduled delivery month of an Aircraft will be used to determine the ECI and CPI values for the applicable months (including those noted as preliminary by the Bureau of Labor Statistics) to calculate the Airframe Price Adjustment for the Aircraft invoice at the time of delivery. The values will be considered final and no Airframe Price Adjustments will be made after Aircraft delivery for any subsequent changes in published Index values, subject always to paragraph 2.4 above. |
|
|
ii. The maximum number of digits to the right of the decimal after rounding utilized in any part of the Airframe Price Adjustment equation will be 4, where rounding of the fourth digit will be increased to the next highest digit when the 5th digit is equal to 5 or greater. |
|
P.A. No. 2126 |
AE1 - 3 |
SA-22 |
Boeing Commercial Airplanes
P.O. Box 3707
Seattle, WA 98124-2207
6-1162-LAJ-0895R5
LAN Airlines S.A.
Santiago, Chile
|
Subject: |
[***] |
|
Reference: |
Purchase Agreement No. 2126 (The Purchase Agreement) between The Boeing Company (Boeing) and LAN Airlines S.A. (Customer) relating to Model 767-316F and Model 767-316ER aircraft (hereinafter referred to as “Aircraft”) |
This letter agreement (Letter Agreement) amends the Purchase Agreement. All terms used but not defined in this Letter Agreement shall have the same meaning as in the Purchase Agreement. This Letter Agreement supersedes and replaces in its entirety Letter Agreement 6-1162-LAJ-0895R4 dated 20th of July, 2005.
|
1. |
Credit Memorandum. |
In consideration of Customer purchasing the Aircraft, Boeing will provide concurrent with the delivery of each Aircraft contained on the Aircraft Information Tables No. 5, 6, 7, 8 and 9 of the Purchase Agreement a credit memorandum equal to [***] of the escalated Airframe Price. This credit memorandum may be used for the purchase of any Boeing goods and services including aircraft but the credit memorandum may not be used for advance payments.
|
2. |
Export License. |
Customer understands and confirms that it is Customer’s responsibility to obtain any required Export License from the relevant U.S. authority. Without accepting any liability for any failure to do so, Boeing will use reasonable endeavors to alert Customer to any regulatory changes of which Boeing becomes aware and which require Buyer to obtain such Export License.
|
3. |
Warranty Modification. |
Notwithstanding paragraph 3.2 of Part 2 of Exhibit C to the AGTA, Boeing agrees that the warranty period for a Corrected Boeing Product resulting from a defect in material or workmanship is 6 months or the remainder of the initial warranty period, whichever is longer.
|
4. |
[***]. |
|
[***] |
|
5. |
[***] |
|
6. |
[***] |
|
7. |
[***] |
|
8. |
[***] |
|
9. |
[***] |
|
10. |
[***] |
|
|
10.1 |
[***] |
|
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10.2 |
[***] |
|
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10.3 |
[***] |
|
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10.4 |
[***] |
|
11. |
[***] |
|
|
11.1 |
[***] |
|
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11.2 |
[***] |
|
12. |
[***] |
|
13 |
[***] |
|
|
13.1 |
[***] |
|
|
13.2 |
[***] |
|
14. |
[***] |
|
15. |
[***] |
|
|
15.1 |
[***] |
|
15.2 |
[***] |
|
16. |
[***] |
|
17. |
[***] |
|
|
2 |
|
|
18. |
Aircraft Information Tables and Advance Payments. |
If any Aircraft Information Table is changed, Boeing will provide Customer with each such revised aircraft information table which will be incorporated into Purchase Agreement 2126 via Supplemental Agreement. If a change to the Purchase Agreement causes the Advance Payments being held for a particular aircraft to change, Boeing will invoice Customer if more advance payments are required and Boeing will provide a refund to Customer if Boeing is holding more advance payments than are required under the Purchase Agreement because of the change. Each such payment or refund as the case may be will be made within 10 business days of the signing of a Supplemental Agreement.
|
19. |
[***] |
|
20. |
[***] |
|
|
20.1 |
[***] |
|
20.2 |
[***] |
|
|
|
20.3 |
[***] |
|
21. |
Confidentiality. |
Customer and Boeing understand that the information contained in this Letter Agreement is considered confidential. Each of Customer and Boeing agree to treat this Letter Agreement as confidential and will not, without the prior written consent of the other party, disclose this Letter Agreement or any information contained herein to any third parties, other than as required by applicable law or the Export-Import Bank of the United States. If the foregoing correctly sets forth your understanding of our agreement with respect to the matters treated above, please indicate your acceptance and approval below.
|
|
|
|
||
|
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|
|
||
|
By: |
|
|
|
|
|
Its: |
Attorney-In-Fact |
|
|
|
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|
|
|||
|
|
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|
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|
|
By: |
|
|
|
|
|
Its: |
Senior VP Corporate Investments |
|
|
|
|
|
3 |
|
Exhibit A to Letter Agreement 6-1162-LAJ-0895R5
Paragraph 20.2
Substitute Aircraft Delivery, Description, Price and Advance Payments
|
Airframe Mode/MTOW: |
767-300ER |
412,000 |
|
Detail Specification: |
D019T002-E (8/28/2003) |
|
|
|
Engine Model: |
CF6-80C2B6F |
|
|
Airframe Price Base Year/Escalation Formula: |
Jul-04 |
Fixed Factor ECI-W Airframe |
|
|
Airframe Price: |
$ 112,952,000 |
|
Engine Price Base Year/Escalation Formula: |
Jul-04 |
GE CF6-80 & GE90 (99 rev.) |
||
|
Optional Features: |
$ 1,459,900 |
|
|
|
|||
|
Sub-Total of Airframe and Features: |
$ 114,411,900 |
|
Airframe Escalation Data: |
|
|||
|
Engine Price (Per Aircraft): |
$ 19,145,298 |
|
Base Year Index (ECI): |
N/A |
|
||
|
Aircraft Basic Price (Excluding BFE/SPE): |
$ 133,557,198 |
|
Base Year Index (ICI): |
N/A |
|
||
|
Buyer Furnished Equipment (BFE) Estimate: |
$ 0 |
|
Engine Escalation Data: |
|
|||
|
Seller Purchased Equipment (SPE) Estimate: |
$ 1,468,000 |
|
Base Year Index (CPI): |
157.160 |
|
||
|
Refundable Deposit/Aircraft at Proposal Acceptance: |
$ 145,000 |
|
|
|
|||
|
Delivery Date |
Number of Aircraft |
Escalation Factor (Airframe) |
Escalation
Factor |
|
Escalation Estimate |
Advance Payment Per Aircraft (Amts. Due/Mos. Prior to Delivery): |
|||
|
|
Adv Payment Base Price Per A/P |
At Signing |
24 Mos. |
21/18/12/9/6 Mos. |
Total |
||||
|
Oct-2008 |
1 |
1.1555 |
1.157 |
|
$156,050,000 |
$1,415,500 |
$6,242,000 |
$7,802,500 |
$46,815,000 |
|
Total: |
1 |
|
|
|
|
|
|
|
|
|
APR 34778-1F |
Boeing Proprietary |
Page 1 |
Exhibit B1 to Letter Agreement 6-1162-LAJ-0895R5
Paragraph 20.3
Substitute Aircraft Delivery, Description, Price and Advance Payments
|
Airframe Mode/MTOW: 767-300ER |
412000 pounds |
|
Detail Specification: D019T0012- (12/22/2005) |
|
|
Engine Model/Thrust: CF6-80C2B6F |
60200 pounds |
|
Airframe Price Base Year/Escalation Formula: Jul-05 |
Fixed Factor ECI-MFG/CPI |
|
Airframe Price: |
$ 118340,000 |
|
Engine Price Base Year/Escalation Formula: Jul-05 |
GE CF6-80 & GE90 (99 rev.) |
|
Optional Features: |
$ 1,529,500 |
|
|
|
|
Sub-Total of Airframe and Features: |
$ 119,869,500 |
|
Airframe Escalation Data: |
|
|
Engine Price (Per Aircraft): |
$ 20,010,080 |
|
Base Year Index (ECI): N/A |
|
|
Aircraft Basic Price (Excluding BFE/SPE): |
$ 131,456,280 |
|
Base Year Index (ICI): N/A |
|
|
Buyer Furnished Equipment (BFE) Estimate: |
$ 0 |
|
Engine Escalation Data: |
|
|
Seller Purchased Equipment (SPE) Estimate: |
$ 1,535,000 |
|
Base Year Index (CPI): 163.430 |
|
|
Refundable Deposit/Aircraft at Proposal Acceptance: |
$ 150,000 |
|
|
|
|
Delivery Date |
Number of Aircraft |
Escalation Factor (Airframe) |
Escalation |
|
Escalation Estimate |
Advance Payment Per Aircraft (Amts. Due/Mos. Prior to Delivery |
|||
|
|
At Signing |
24 Mos. |
21/18/12/9/6 Mos. |
Total |
|||||
|
Jul-2008 |
1 |
1.1022 |
1.135 |
|
$156,524,000 |
$1,415,240 |
$6,260,960 |
$7,826,200 |
$46,957,200 |
|
Total: |
1 |
|
|
|
|
|
|
|
|
|
|
Boeing Proprietary |
Page 1 |
Exhibit B2 to Letter Agreement 6-1162-LAJ-0895R5
Paragraph 20.3
Page 1 of 2
[***]
|
Credit Memoranda |
[***] Letter |
Oct 2008++ |
Nov |
Jul &
Sep |
|
Basic Credit Memo |
1 |
[***] |
[***] |
[***] |
|
[***] |
[***] |
[***] |
[***] |
[***] |
|
[***] |
[***] |
[***] |
[***] |
[***] |
|
[***] |
[***] |
[***] |
[***] |
[***] |
|
[***] |
[***] |
[***] |
[***] |
[***] |
|
[***] |
[***] |
[***] |
[***] |
[***] |
|
[***] |
[***] |
[***] |
[***] |
[***] |
|
[***] |
[***] |
[***] |
[***] |
[***] |
[***]
Exhibit B2 to Letter Agreement 6-1162-LAJ-0895R5
Paragraph 20.3
Page 2 of 2
[***]
Advance Payments
|
[***] |
[***] |
|
[***] |
[***] |
|
[***] |
[***] |
|
[***] |
[***] |
|
[***] |
[***] |
|
[***] |
[***] |
|
[***] |
[***] |
|
[***] |
[***] |
|
[***] |
[***] |
|
• |
Interest on Deferred Amounts |
[***] |
|
• |
[***] |
|
• |
[***] |
|
[***] |
|
|
|
|
|
1. |
INTERPRETATION |
5 |
||
|
1.1 |
DEFINITIONS |
5 |
||
|
1.2 |
CONSTRUCTION |
5 |
||
|
1.3 |
CONFLICTOF
TERMS
OR PROVISIONS |
6 |
||
|
2. |
REPRESENTATIONS
AND WARRANTIES |
6 |
||
|
2.1 |
LESSEE’S
REPRESENTATIONSAND
WARRANTIES |
6 |
||
|
2.2 |
LESSOR’S
REPRESENTATIONSAND
WARRANTIES |
6 |
||
|
3. |
CONDITIONS
PRECEDENT |
6 |
||
|
3.1 |
CONDITIONS
PRECEDENT |
6 |
||
|
3.2 |
WAIVER |
6 |
||
|
4. |
COMMENCEMENT |
7 |
||
|
4.1 |
LEASING |
7 |
||
|
4.2 |
PROCEDUREBEFORE
DELIVERY |
7 |
||
|
4.3 |
DELIVERY
AND ACCEPTANCE |
7 |
||
|
4.4 |
Delayed
Delivery |
8 |
||
|
5. |
PAYMENTS |
8 |
||
|
5.1 |
DEPOSIT |
8 |
||
|
5.2 |
RENTAL
PERIODS |
8 |
||
|
5.3 |
RENT |
9 |
||
|
5.4 |
INTENTIONALLY
LEFT
BLANK |
9 |
||
|
5.5 |
PAYMENTS |
9 |
||
|
5.6 |
WITHHOLDING |
9 |
||
|
5.7 |
TAX
INDEMNITY |
10 |
||
|
5.8 |
VALUE
ADDED
TAX |
12 |
||
|
5.9 |
TAX
CONTEST
AND MITIGATION |
12 |
||
|
5.10 |
INDEMNITY
PAYMENTS
- AFTER-TAX
BASIS |
13 |
||
|
5.11 |
LESSOR
OBLIGATIONS
FOLLOWING
EXPIRY
DATE |
13 |
||
|
5.12 |
NET
LEASE |
13 |
||
|
5.13 |
FURTHER
PROVISIONS
REGARDING
DEPOSIT |
14 |
||
|
5.14 |
LETTER OF
CREDIT |
15 |
||
|
5.15 |
GUARANTY |
16 |
||
|
5.16 |
LATE
PAYMENT
INTEREST |
16 |
||
|
5.17 |
CURRENCY |
16 |
||
|
5.18 |
CERTIFICATES |
17 |
||
|
5.19 |
APPROPRIATION |
17 |
||
|
5.20 |
SET-OFF |
17 |
||
|
5.21 |
EXPENSES |
18 |
||
|
5.22 |
OTHER
OUTGOINGS |
18 |
||
|
6. |
MANUFACTURER’S
WARRANTIES |
18 |
||
|
7. |
LESSOR’S
COVENANTS |
19 |
||
|
7.1 |
QUIET
ENJOYMENT |
19 |
||
|
8. |
LESSEE’S
COVENANTS |
19 |
||
|
8.1 |
DURATION |
19 |
||
|
8.2 |
INFORMATION |
19 |
||
|
8.3 |
LAWFUL
AND SAFE
OPERATION |
20 |
||
|
8.4 |
SUBLEASING
AND WET
LEASING |
21 |
||
|
8.5 |
INSPECTION |
23 |
||
|
8.6 |
OWNERSHIP;
PROPERTY
INTERESTS;
RELATED
MATTERS |
23 |
||
|
8.7 |
GENERAL |
24 |
||
|
8.8 |
RECORDS |
26 |
||
|
8.9 |
PROTECTION |
26 |
||
|
8.10 |
MAINTENANCE
AND REPAIR |
27 |
||
|
8.11 |
REMOVAL
OF ENGINES
AND PARTS |
28 |
||
|
8.12 |
EQUIPMENT
CHANGES |
31 |
||
|
8.13 |
TITLE ON
AN EQUIPMENT
CHANGE |
31 |
|
9. |
INSURANCE |
32 |
||
|
9.1 |
INSURANCE |
32 |
||
|
9.2 |
CHANGE |
32 |
||
|
9.3 |
INSURANCE
UNDERTAKINGSAND
INFORMATION |
32 |
||
|
9.4 |
FAILURE
TO
INSURE |
33 |
||
|
9.5 |
CONTINUING
INDEMNITY |
33 |
||
|
10. |
INDEMNITY |
34 |
||
|
11. |
EVENTS
OF LOSS |
35 |
||
|
11.1 |
EVENTS
OF
LOSS |
35 |
||
|
11.2 |
REQUISITION |
36 |
||
|
12. |
RETURN
OF AIRCRAFT |
37 |
||
|
12.1 |
RETURN |
37 |
||
|
12.2 |
NON-COMPLIANCE |
37 |
||
|
12.3 |
REDELIVERY |
38 |
||
|
12.4 |
ACKNOWLEDGEMENT |
38 |
||
|
13. |
DEFAULT |
38 |
||
|
13.1 |
EVENTS
|
38 |
||
|
13.2 |
RIGHTS
AND REMEDIES |
38 |
||
|
13.3 |
DEFAULT
INDEMNITY |
40 |
||
|
13.4 |
SALE
OR
RE-LEASE |
40 |
||
|
13.5 |
DEREGISTRATION |
40 |
||
|
13.6 |
POWER
OF ATTORNEY |
41 |
||
|
13.7 |
ADMINISTRATION
ORDER |
41 |
||
|
14. |
ASSIGNMENT |
41 |
||
|
14.1 |
LESSEE |
41 |
||
|
14.2 |
LESSOR |
41 |
||
|
14.3 |
CONDITIONS |
42 |
||
|
15. |
MISCELLANEOUS |
43 |
||
|
15.1 |
ILLEGALITY |
43 |
||
|
15.2 |
WAIVERS,
REMEDIES
CUMULATIVE |
44 |
||
|
15.3 |
DELEGATION |
44 |
||
|
15.4 |
SEVERABILITY |
45 |
||
|
15.5 |
REMEDY |
45 |
||
|
15.6 |
TIME OF
ESSENCE |
45 |
||
|
15.7 |
NOTICES |
45 |
||
|
15.8 |
GOVERNING
LAW;
JURISDICTION;
WAIVER
OF JURY
TRIAL |
45 |
||
|
15.9 |
SOLE AND
ENTIRE
AGREEMENT;
TRUE
LEASE |
47 |
||
|
15.10 |
INDEMNITEES |
47 |
||
|
15.11 |
COUNTERPARTS |
48 |
||
|
15.12 |
LANGUAGE |
48 |
||
|
15.13 |
SURVIVAL |
48 |
||
|
16. |
DISCLAIMERS
AND WAIVERS |
48 |
||
|
16.1 |
EXCLUSION |
48 |
||
|
16.2 |
WAIVER |
49 |
||
|
16.3 |
CONFIRMATION |
49 |
||
|
17. |
BROKERS
AND OTHER THIRD PARTIES |
50 |
||
|
17.1 |
NO
BROKERS |
50 |
||
|
17.2 |
INDEMNITY |
50 |
||
|
SCHEDULE
1 DEFINITIONS |
51 |
|||
|
SCHEDULE
2 REPRESENTATIONS
AND WARRANTIES |
63 |
|||
|
SCHEDULE
3 CONDITIONS
PRECEDENT |
65 |
|||
|
SCHEDULE
4 PRE-DELIVERY
PROCEDURES
AND DELIVERY
CONDITION
REQUIREMENTS |
68 |
|||
|
SCHEDULE
6 PROCEDURES
AND OPERATING
CONDITION
AT REDELIVERY |
71 |
|||
|
SCHEDULE
7 INSURANCE
REQUIREMENTS |
80 |
|||
|
SCHEDULE
8 FORM
OF LEGAL
OPINION |
84 |
|||
|
SCHEDULE
9 EVENTS OF
DEFAULT |
89 |
|||
|
SCHEDULE
10. CONTINUING GUARANTY |
93 |
|||
|
SCHEDULE
11. FORM OF LETTER OF CREDIT FROM LESSEE’S BANK |
98 |
|||
|
SCHEDULE
12. Form VAT 60A |
100 |
|||
|
FORM
VAT 60A |
100 |
|||
|
SCHEDULE
13A. Form of Power of Attorney |
101 |
|||
|
SCHEDULE
13B. Form of Irrevocable De-Registration and Export Request
Authorisations |
102 |
|||
|
(A) |
From
time to time, Lan Cargo or one of the Guarantor’s Affiliates may wish to
lease commercial aircraft from GECAS or one of its Affiliates;
|
|
(B) |
Each
party hereto wishes to provide in one document for certain common terms and
conditions, as hereinafter provided in this CTA, that will be applicable,
unless otherwise stated, to each such lease referred to in Recital (A);
and |
|
(C) |
Each
such lease transaction will be concluded only on the terms of an agreement
entitled “Aircraft Lease Agreement,” which together with this CTA
(which will be incorporated into and become part of such Aircraft Lease
Agreement) will constitute the lease for the applicable aircraft as identified
therein; |
|
1. |
INTERPRETATION |
|
1.1 |
Definitions |
|
1.2 |
Construction |
|
(a) |
In the
Lease, unless otherwise stated, a reference to: |
|
(i) |
“Lessor,”
“Lessee,” “GECAS,” “Owner” or any other Person
includes any of their successors and assignees; |
|
(ii) |
plural
concepts shall include the singular and vice versa; |
|
(iii) |
any
document, excluding the Common Terms Agreement, shall include any changes to
that document and any replacement for it; |
|
(iv) |
a Clause
or a Schedule is a reference to a clause of or a schedule to this CTA or the
Aircraft Lease Agreement as so indicated; |
|
(v) |
any
Regulation shall include any changes to that Regulation and any replacement for
it; |
|
(vi) |
an
obligation of a Person refers to any obligation that Person has under or in
relation to the Lease; and |
|
(vii) |
“includes,”
“including”, “include” or similar terms shall not be
construed as limiting and shall mean “including, without
limitation.” |
|
1.3 |
Conflict
of Terms or Provisions |
|
2. |
REPRESENTATIONS
AND WARRANTIES |
|
2.1 |
Lessee’s
Representations and Warranties |
|
2.2 |
Lessor’s
Representations and Warranties |
|
3. |
CONDITIONS
PRECEDENT |
|
3.1 |
Conditions
Precedent |
|
3.2 |
Waiver |
|
4. |
COMMENCEMENT |
|
4.1 |
Leasing |
|
(a) |
The
Aircraft Lease Agreement shall specify a Scheduled Delivery Month, a Scheduled
Delivery Week or a Scheduled Delivery Date. Unless a specific Scheduled
Delivery Week has been agreed in the Aircraft Lease Agreement, Lessor shall
notify Lessee as soon as possible, but no later than at least thirty (30) days
prior to the Scheduled Delivery Month of the Scheduled Delivery Week and unless
a specific Scheduled Delivery Date has been agreed in the Aircraft Lease
Agreement, Lessor shall notify Lessee as soon as possible but no later than at
least one (1) week prior to the Scheduled Delivery Week of the Scheduled
Delivery Date. Subject to Clause 4.4, Lessor will lease the Aircraft to Lessee
and Lessee will take the Aircraft on lease for the Term, which shall commence
on the Delivery Date, and which shall be evidenced by Lessee’s execution
of the Certificate of Technical Acceptance for the Aircraft. |
|
(b) |
If (i)
Lessee is unwilling or unable to accept delivery of the Aircraft on the date on
which Lessor tenders the Aircraft for Delivery to Lessee under and in
accordance with Clause 4.3(a), or Lessee fails to fulfill any Condition
Precedent on or before such date, and (ii) the Aircraft meets the Delivery
Condition Requirements, then the Rent Commencement Date for the Aircraft shall
be deemed to have occurred on the date on which it is tendered by Lessor for
Delivery in accordance with subclause (ii) of this Clause 4.1(b), and Lessee
shall be obligated to pay Rent for the Aircraft on and from such date
regardless of whether the Delivery Date occurs or whether Lessee executes the
Certificate of Technical Acceptance, but Lessor shall have no obligation to
deliver, and Lessee shall have no lease interest in the Aircraft or other right
to, possession of the Aircraft unless and until Lessee fulfils all Conditions
Precedent as and when provided in the Lease and Lessee accepts delivery of the
Aircraft as evidenced by its execution of Certificate of Technical Acceptance
for such Aircraft, and so long as no Default has occurred and is
continuing. |
|
(c) |
Lessee
will be responsible for all risks associated with any loss of or damage to the
Aircraft from the Delivery Date until the Return Occasion (except where the
same is caused solely and directly by the acts of Lessor during the Term
constituting willful misconduct or recklessness) . |
|
4.2 |
Procedure
before Delivery |
|
4.3 |
Delivery
and acceptance |
|
(a) |
Subject
to Clause 3.1, Lessor will tender delivery of the Aircraft to Lessee at the
Delivery Location. |
|
(b) |
Subject
to Clause 3.1, Lessee will accept the Aircraft. Upon such acceptance, Lessee
must also provide evidence of its acceptance by signing the Certificate of
Technical Acceptance for the Aircraft and delivering it to
Lessor. |
|
(c) |
Lessee’s
acceptance of the Aircraft shall be regarded as absolute, unconditional and
irrevocable. |
|
4.4 |
Delayed
Delivery |
|
(a) |
Lessor
will not be responsible for any Losses that Lessee suffers resulting from the
delay or from the non-delivery of the Aircraft; |
|
(b) |
Lessee
will not, except in the circumstances described in Clause 4.4(c), be entitled
to terminate the Lease or to reject the Aircraft when it is offered for
Delivery because of the delay. |
|
(c) |
If the
Aircraft has not been tendered for Delivery, in accordance with Clause 4.3, by
the Final Delivery Date, either party may terminate the Lease by delivering
notice of its intent to terminate the Lease to the other party ten (10) days
prior to such Final Delivery Date (and if such notice is not so delivered, the
Final Delivery Date will be deemed extended for one additional period of ninety
(90) days). Upon the delivery of any such notice or automatically on the
expiration of such 90-day period if no such notice has been delivered, all
obligations of each party under the Lease will terminate either on the Final
Delivery Date, or the expiry date of the additional ninety (90) day period if
so extended, provided that the Aircraft has not theretofore been tendered for
Delivery as of such date in accordance with the Lease, except that Lessor will
repay to Lessee the Deposit (if any), return to Lessee or cancel any Letter of
Credit, and release and return any Guaranty, if applicable, and Lessee will
remain obligated under its indemnity set forth in Clause 3 of Schedule 4. If
Lessor on reasonable grounds determines that there is no reasonable possibility
that the Aircraft will be available for Delivery on or before the Final
Delivery Date, Lessor shall then promptly notify Lessee of such circumstances,
and Lessor and/or Lessee shall be entitled to effect a termination of the
parties’ obligations hereunder upon ten (10) days prior, written notice to
the other party; and upon such termination becoming effective, Lessor shall
repay the Deposit to Lessee, return or cancel the Letter of Credit and release
or return of the Guaranty as set forth in the previous
sentence. |
|
(d) |
Lessee
hereby agrees that its only right or remedy for a delay in delivery of the
Aircraft due to an Unforeseen Event is the remedy set forth in Clause 4.4(c)
above and Lessee hereby waives any rights it may have under Section 2A-406 of
the UCC or otherwise for any delay in delivery. |
|
5. |
PAYMENTS |
|
5.1 |
Deposit |
|
5.2 |
Rental
Periods |
|
(a) |
if there
is no numerically corresponding day in that month, it will end on the last day
of that month; and |
|
(b) |
if a
Rental Period would otherwise overrun the Expiry Date, it will end on the
Expiry Date. |
|
5.3 |
Rent |
|
(a) |
Time
of Payment: Lessee
will pay to Lessor or its order Rent in advance, as specified in the applicable
Aircraft Lease Agreement, on each Rent Date. Lessor must receive value for the
payment on each Rent Date. If a Rental Period begins on a day which is not a
Business Day, the Rent payable in respect of that Rental Period shall be paid
on the Business Day immediately succeeding that day. |
|
(b) |
Amount:
The Rent
payable during the Term shall be calculated as provided in the Aircraft Lease
Agreement. |
|
5.4 |
Intentionally
Left Blank |
|
5.5 |
Payments |
|
5.6 |
Withholding |
|
(a) |
deduct
the minimum amount necessary to comply with the Law; |
|
(b) |
pay
Lessor an extra amount so that Lessor receives a net amount on the relevant
payment date, that is equal to the amount that it would have received if the
reduction had not been made. The amount of any such payment to Lessor must take
into account the tax treatment of that payment to Lessor applying the
principles of Clause 5.10 such that Lessor shall be in no worse position than
it would have been if the deduction had not applied in the first
place; |
|
(c) |
pay the
Tax to the relevant taxing authority according to the relevant Law;
and |
|
(d) |
obtain a
receipt (if one is available) from the relevant taxing authority and give it to
Lessor; |
|
5.7 |
Tax Indemnity |
|
(a) |
Lessee
will, within 10 Business Days of Lessor’s demand therefor, pay and
indemnify each Tax Indemnitee against all Taxes (other than Lessor Taxes)
levied or imposed against or upon Lessor or Lessee or any Tax Indemnitee and
relating to or attributable to Lessee, the Lease or the Aircraft directly or
indirectly in connection with the importation, exportation, registration,
ownership, leasing, subleasing, purchase, delivery, possession, use, operation,
repair, maintenance, overhaul, transportation, landing, storage, presence or
redelivery of the Aircraft or any part thereof or any rent, receipts, insurance
proceeds, income or other amounts arising there from, or the making of any
Equipment Change. |
|
(b) |
If a Tax
Indemnitee in good faith, acting reasonably, determines that it has realized
any Tax savings (by way of refund, deduction, credit or otherwise) in respect
of any amount with respect to which Lessee shall have made a payment (or
increased payment) pursuant to Clause 5.6, 5.7(a) or 5.10, and such Tax
savings shall not have been taken into account previously in calculating any
indemnity payment made by Lessee, then the Tax Indemnitee shall, to the extent
that it can do so without prejudice to the retention of the relevant savings,
pay to Lessee such amount as the Tax Indemnitee shall in its reasonable opinion
have concluded to be the amount of such Tax savings (together with, in the case
of a refund, any interest received thereon) provided that: |
|
(i) |
any such
payment shall leave the Tax Indemnitee in no more and no less favorable a
position than it would have been in if the Taxes paid or indemnified against
pursuant to clause 5.6, 5.7(a) or 5.10 had not been imposed, levied or
asserted; |
|
(ii) |
the Tax
Indemnitee shall not be obliged to make a payment under this
sub-clause (b) if it determines in its discretion (having regard to advice
that it may have obtained from an independent, reputable tax advisor) that such
payment would prejudice its retention of such Tax savings. If so requested by
Lessee, Lessor will show Lessee a copy of such advice to the extent to which
Lessor may have obtained such advice; |
|
(iii) |
the Tax
Indemnitee shall not be obliged to make any payment under this
sub-clause (b) if by doing so it would contravene the terms of any
applicable law. |
|
interfere
with the right of Lessor to arrange its tax affairs in whatever manner it
thinks fit (or give Lessee any right to investigate, or impose any obligation
on the Tax Indemnitee to disclose, the same) and, in particular, but without
limitation, Lessor shall not be under any obligation to claim credit, relief,
remission or repayment from or against its corporate profits or similar Tax
liability in respect of the amount of any such deduction or withholding in
priority to any other claims, reliefs, credits or deductions available to
Lessor; or |
|
(ii) |
oblige
Lessor to disclose any information relating to its Tax affairs or any
computations in respect thereof. |
|
(c) |
If
Lessee is required by any applicable Law, or by any third party, to deliver any
report or return in connection with any Taxes for which Lessee is obliged to
indemnify Lessor or any Tax Indemnitee under the Lease, Lessee will complete
the same and, on request, supply a copy of the report or return to Lessor.
|
|
(d) |
If any
report, return or statement is required to be made by Lessor or any Tax
Indemnitee with respect to any Tax for which there is an indemnity obligation
of Lessee under the Lease, Lessee will promptly notify Lessor of the
requirement, and: |
|
(i) |
if
permitted by applicable Law, make and file in a timely manner such report,
return or statement (except for any report, return or statement that (i) Lessor
has requested Lessee to provide to Lessor in advance of making and filing, in
which case, such report, return or statement shall not be made and filed
without Lessee first receiving Lessor’s prior written response (not to be
unreasonably delayed or withheld) provided always that if Lessee has supplied
such report, return or statement to Lessor and Lessee has not received
Lessor’s prior written response after providing Lessor with a reminder
that Lessee was awaiting its response, then Lessee may proceed to make and/or
file such report, return or statement if Lessee is likely to suffer adverse tax
consequences by delaying further pending receipt of Lessor’ prior written
response or (ii) Lessor has notified Lessee that Lessor or any Tax Indemnitee
intends to prepare and file), prepare such return in such manner as will
indicate Lessor as owner and lessor of the Aircraft if required or appropriate,
and provide Lessor upon request a copy of each such report, return or statement
filed by Lessee, or |
|
(ii) |
if
Lessee is not permitted by applicable Law to file any such report, return or
statement, Lessee will prepare and deliver to Lessor a proposed form of such
report, return or statement within a reasonable time prior to the time such
report, return or statement is to be filed and Lessor will promptly file such
report, return or statement when due; |
|
(e) |
If
Lessee is required to make a payment pursuant to Clause 5.7 or 5.10 to a Tax
Indemnitee other than Lessor, Lessee may (by notice in writing to Lessor)
require (prior to making such payment) that such Tax Indemnitee expressly
agrees in favor of Lessee to comply with Clause 5.7(b) and (d) and Clause
5.9. |
|
(f) |
Lessee
will also indemnify each Tax Indemnitee, on an After-Tax Basis, as set forth in
the section entitled “Special Tax Indemnity” in the Aircraft Lease
Agreement, and the provisions of Clause 5.9 shall apply
thereto. |
|
(i) |
the
normal administrative costs and expenses of Lessor or any Tax Indemnitee except
to the extent that the same arise as a result of the occurrence a Default;
or |
|
(ii) |
penalties,
additions to Taxes, fines or interest on Taxes which are the direct result of a
failure or unreasonable delay by Lessor to advise Lessee of a demand or
assessment actually received by Lessor (but not received by Lessee or not
reasonably known by Lessee) in respect of Taxes for which Lessee is responsible
hereunder. |
|
5.8 |
Value
Added Tax |
|
(a) |
For the
purposes of this Clause 5.8: |
|
(i) |
“VAT”
means value added tax and any goods and services, sales or turnover tax,
imposition or levy of a like nature; and |
|
(ii) |
“supply”
includes anything on or in respect of which VAT is
chargeable. |
|
(b) |
Lessee
will pay to Lessor or the relevant taxing authority and indemnify Lessor
against the amount of any VAT chargeable in respect of any supply for VAT
purposes under the Lease. Lessee shall provide evidence to Lessor, if
available, in respect of any payment it makes of such VAT. |
|
(c) |
Each
amount stated as payable by Lessee under the Lease is exclusive of VAT (if
any). |
|
5.9 |
Tax
Contest
and Mitigation |
|
(a) |
Contest:
If
Lessee disputes the payment of any Taxes payable by a Tax Indemnitee for which
Lessee is responsible under the Lease, Lessor will consider with Lessee the
taking of such action as Lessee may reasonably request at Lessee’s expense
to contest that payment, but Lessor will only be obliged to take any such
action if: |
|
(i) |
Lessee
provides the Tax Indemnitee, upon the Tax Indemnitee’s written request,
with an opinion, issued by a reputable, independent tax counsel reasonably
satisfactory to the Tax Indemnitee, to the effect that there is a reasonable
basis for such contest; |
|
(ii) |
any such
action does not present a risk of the imposition of criminal penalties or, in
the Tax Indemnitee’s reasonable judgment, any risk of the sale,
forfeiture, or loss of, or the creation of any Security Interest on, the
Aircraft, or any other material adverse effect on the interest of the Tax
Indemnitee; and |
|
(iii) |
Lessee
shall have made adequate provision to the satisfaction of the Tax Indemnitee in
respect of the expense concerned. |
|
(b) |
Mitigation:
If
circumstances are such that Lessor or any other Tax Indemnitee intends to claim
indemnification from Lessee under Clauses 5.6 (a) or 5.7 Lessor or such other
Tax Indemnitee shall, after consultation with Lessee and to the extent that it
can do so lawfully and without prejudice to its own position and/or to
Lessee’s indemnity and other obligations, consider and will agree what
steps it can reasonably take with a view to mitigating the effect of such
circumstances on Lessee. |
|
5.10 |
Indemnity
Payments - After-Tax Basis |
|
5.11 |
Lessor
Obligations Following Expiry Date |
|
(a) |
redelivery
of the Aircraft to Lessor in accordance with and in the condition required by
the Lease; or |
|
(b) |
payment
to Lessor of the Agreed Value following an Event of Loss after the Delivery
Date; or |
|
(c) |
payment
to Lessor of the Purchase Price following the exercise by Lessee of any right
to purchase. |
|
(i) |
Lessor
will pay to Lessee the balance of the Deposit (if any); |
|
(ii) |
Lessor
will pay to Lessee the amount of any Rent received in respect of any period
falling after the date of redelivery of the Aircraft or payment of the Agreed
Value, as the case may be; and |
|
(iii) |
Lessor
will return to Lessee or cancel any Letter of Credit and release and return any
Guaranty. |
|
5.12 |
Net
Lease |
|
5.13 |
Further
Provisions regarding Deposit |
|
(a) |
If,
under the Lease, Lessee is required to pay a Deposit, Lessee hereby grants a
security interest in the Deposit to Lessor and the remaining provisions of this
Clause shall apply. Lessee agrees that Lessor shall be entitled to commingle
the Deposit with Lessor’s general or other funds, Lessor will have no
obligation to pay any interest thereon and Lessor will not hold any such funds
as agent or in trust for Lessee or in any similar fiduciary capacity. In this
regard, Lessee acknowledges and agrees that it |
|
|
is not
located in the State of New York within the meaning of Section 7-101 1-c. (b)
of the New York General Obligations Law and, therefore, the requirements of
Section 7-101 of the New York General Obligations Law to the effect that Lessor
hold the Deposit in a separate, interest bearing account do not apply.
|
|
(b) |
If
Lessee fails to comply with any provision of the Lease or the Other Agreements,
or any Default shall have occurred and be continuing, in addition to all rights
and remedies accorded to Lessor elsewhere in the Lease or under Law in respect
of the Deposit, Lessor may immediately or at any time thereafter, without prior
notice to Lessee, apply all or part of the Deposit in or towards the payment or
discharge of any matured obligation owed by Lessee or any affiliate of Lessee
under the Lease or the Other Agreements, in such order as Lessor sees fit,
and/or exercise any of the rights of set-off described in Clause 5.20 against
all or part of the Deposit. |
|
(c) |
If
Lessor exercises the rights described in Clause 5.13(b) above, Lessee shall,
following a demand in writing from Lessor, immediately restore the Deposit to
the level at which it stood immediately prior to such
exercise. |
|
5.14 |
Letter
of Credit |
|
(a) |
If,
under the Lease, Lessee is required or elects to provide Lessor with a Letter
of Credit, the provisions of this Clause shall apply. Any Letter of Credit
provided by Lessee to Lessor will (i) be issued
or confirmed and payable by the London or New York branch of a major
international bank whose long-term unsecured, unsubordinated and unguaranteed
debt obligations are rated by Moody’s Investors Services Inc. or Standard
and Poors Corporation not less than Bbb and BBB, respectively, and are not on
credit-watch by any of such agencies,. (ii) be
in substantially the form of Schedule 11 and in form and substance reasonably
acceptable to Lessor, (iii) be issued as security for all payment obligations
of Lessee to Lessor or any of its Affiliates under the Lease and each Other
Agreement (including any and all Losses suffered or incurred by Lessor or any
of its Affiliates in respect of which Lessee or any of its Affiliates is
obligated under the Lease or any Other Agreement), and (iv) remain in full
force and effect and may be drawn down by Lessor upon demand at any time or
times following the occurrence of a Default until the Required LC Expiry
Date. |
|
(b) |
With the
prior written consent of Lessor, which consent shall not be unreasonably
withheld, the Letter of Credit may have a validity period or periods ending
prior to the Required LC Expiry Date, provided that (i) the Letter of Credit
shall, in each case, be renewed, extended or reissued and delivered to Lessor
not later than thirty (30) Business Days prior to its expiry; and (ii) a Letter
of Credit shall remain in force at all times up to the Required LC Expiry
Date. |
|
(c) |
If at
any time during the Term the current issuing or confirming bank for the Letter
of Credit ceases to comply with the requirements specified in paragraph (c)
above, Lessee shall promptly procure that the Letter of Credit is issued or
confirmed by another bank complying with such requirements. |
|
(d) |
If
Lessor makes a drawing under the Letter of Credit, Lessee shall, following a
demand in writing by Lessor, immediately cause the maximum amount available for
drawing under the Letter of Credit to be restored to the level at which it
stood immediately prior to such drawing. |
|
5.15 |
Guaranty |
|
5.16 |
Late
Payment Interest |
|
(a) |
If
Lessee fails to pay any amount payable under the Lease on the due date, Lessee
will pay on demand from time to time to Lessor interest (both before and after
judgment) on that amount, from the due date to the date of payment in full by
Lessee to Lessor, at the Interest Rate. All such interest will be compounded
monthly and calculated on the basis of the actual number of days elapsed in the
month, assuming a 30 day month and a 360 day year. |
|
(b) |
If
Lessor fails to pay any amount payable to Lessee under the Lease on the due
date, Lessor will pay on demand from time to time to Lessee interest (both
before and after judgment) on that amount, from the due date to the date of
payment in full by Lessor to Lessee, at the Interest Rate. All such interest
will be compounded monthly and calculated on the basis of the actual number of
days elapsed in the month, assuming a 30 day month and a 360 day
year. |
|
5.17 |
Currency |
|
(a) |
Lessee’s
Currency Obligation: |
|
(i) |
Lessee
acknowledges that the specification of Dollars payable in New York in the Lease
is of the essence and that Dollars shall be the currency of account in any and
all events. Lessee waives any right it may have in any jurisdiction to pay any
amount under the Lease in a currency other than Dollars. |
|
(ii) |
If
Lessor receives an amount in respect of Lessee’s liability under the Lease
or if such liability is converted into a claim, proof, judgment or order in a
currency other than the currency (the “contractual currency”) in
which the amount is expressed to be payable under the Lease:
- |
|
(A) |
Lessee
will indemnify Lessor as an independent obligation against any loss arising out
of or as a result of such conversion; |
|
(B) |
if the
amount received by Lessor, when converted into the contractual currency (at the
market rate at which Lessor is able on the date of receipt by Lessor (or on the
next date thereafter on which under normal banking practice Lessor is able to
convert the amount received into the contractual currency) to purchase the
contractual currency in New York or at its option London with that other
currency) is less than the amount owed in the contractual currency, Lessee
will, forthwith on demand, pay to Lessor an amount in the contractual currency
equal to the deficit; and |
|
(C) |
Lessee
will pay to Lessor on demand any exchange costs and Taxes payable in connection
with the conversion. |
|
(b) |
Lessor’s
Currency Obligation: |
|
(i) |
Lessor
acknowledges that the specification of Dollars in the Lease is of the essence
and that Dollars shall be the currency of account in any and all
|
|
(ii) |
If
Lessee receives an amount in respect of Lessor’s liability under
the
Lease or if
such liability is converted into a claim, proof, judgement or order in a
currency other than the currency (the “contractual currency”) in
which the amount is expressed to be payable under the
Lease:
|
|
(A) |
Lessor
will indemnify Lessee as an independent obligation against any loss arising out
of or as a result of such conversion; |
|
(B) |
if the
amount received by Lessee, when converted into the contractual currency (at the
market rate at which Lessee is able on the date of receipt by Lessee (or on the
next date thereafter on which under normal banking practice Lessee is able to
convert the amount received into the contractual currency) to purchase the
contractual currency in New York or at its option London with that other
currency) is less than the amount owed in the contractual currency, Lessor
will, forthwith on demand, pay to Lessee an amount in the contractual currency
equal to the deficit; and |
|
(C) |
Lessor
will pay to Lessee on demand any exchange costs and Taxes payable in connection
with the conversion. |
|
5.18 |
Certificates |
|
5.19 |
Appropriation |
|
5.20 |
Set-off |
|
(a) |
In this
sub-clause, references to Lessee will also include Lessee
Affiliates. |
|
(b) |
Lessor
may, without notice, set-off any matured obligation owed by Lessee under the
Lease or under the Other Agreements against any obligation (whether or not
matured) Lessor or any of its Affiliates owes Lessee under the Lease or under
the Other Agreements, regardless of the place of payment or currency. Promptly
after making any such set-off, Lessor shall notify Lessee thereof, but failure
to give such notice shall not affect the effectiveness of any such
set-off. |
|
5.21 |
Expenses |
|
(a) |
to deal
with any amendments, extensions, consents or waivers that are required by
Lessee in connection with the Lease (but excluding any expenses incurred by
Lessor or Owner in connection with any change in the ownership or financing of
the Aircraft) or to implement any replacement of any Engine or
Part; |
|
(b) |
to act
upon any advice and obtain assistance to perfect the Lease in the State of
Registry and the State of Incorporation under the Cape Town Convention (and any
other appropriate place) including any filing or registration fees in
connection therewith; and |
|
(c) |
in
contemplation of, or otherwise in connection with, the enforcement or
preservation of any of Lessor’s rights under the Lease (including under
Clause 10) or in respect of the repossession of any Aircraft.
|
|
5.22 |
Other
Outgoings |
|
6. |
MANUFACTURER’S
WARRANTIES |
|
(a) |
So long
as no Event of Default has occurred which is continuing, Lessor shall make
available to Lessee during the Term the benefit of all manufacturer’s
warranties in relation to the repair or remedy of any defect in the Aircraft
(including compensation for loss of use of the Aircraft) and other product
support for the Aircraft to the extent that it is permitted to do so. In
furtherance of the foregoing, Lessor shall take such actions, at Lessee’s
cost and expense, as Lessee may reasonably request to make such warranties
available to Lessee. Lessee will give Lessor prompt written notice of any
warranty claim which is settled with Lessee on the basis of a cash
payment. |
|
(b) |
If an
Event of Default has occurred and is continuing Lessor may immediately recover
from Lessee the proceeds of any warranty claims previously paid to Lessee to
the extent that such claims relate to any defect in the Aircraft not fully and
completely rectified by Lessee before such Event of Default and Lessor
may: |
|
(i) |
retain
for its own account any such proceeds previously paid to Lessor which would
have been remitted to Lessee under this Clause 6 in the absence of such Event
of Default so long as such Event of Default is continuing;
and |
|
(ii) |
cause
any proceeds of any pending claims to be paid to Lessor, rather than Lessee so
long as such Event of Default is continuing. |
|
(c) |
Lessee
will take all steps as are necessary at the end of the Term to ensure that the
benefit of any assignable warranties relating to the Aircraft which have not
expired is vested in Lessor. Lessee will use reasonable endeavors to ensure
that warranties obtained from vendors with which it contracts are
assignable |
|
7. |
LESSOR’S
COVENANTS |
|
7.1 |
Quiet
Enjoyment |
|
8. |
LESSEE’S
COVENANTS |
|
8.1 |
Duration |
|
8.2 |
Information |
|
(a) |
provide
Lessor with a Technical Report for the Aircraft within seven (7) days after the
end of each calendar month throughout the Term; |
|
(b) |
provide
Lessor with the Financial Information; |
|
(c) |
promptly
notify Lessor of any Event of Loss or of any event which is likely to result in
an insurance claim in excess of the Damage Notification Threshold and details
of any negotiations with insurers or insurance brokers relating to such claim;
|
|
(d) |
promptly
notify Lessor of any Default; |
|
(e) |
provide
Lessor, upon request, with evidence that all Taxes and charges incurred by
Lessee in connection with the Aircraft, its location and its operations,
including those invoiced by airports and air traffic control authorities, have
been paid in full as and when due; |
|
(f) |
provide
Lessor with such other information concerning the location, condition, use and
operation of the Aircraft or concerning the business or financial affairs of
Lessee, as Lessor may from time to time reasonably request; |
|
(g) |
upon
receipt of a request from Lessor, give Lessor not less than thirty (30) days
prior written notice as to the time and location of all Airframe Heavy Checks,
provided that Lessee receives Lessor’s request at least thirty (30) days
before the next Airframe Heavy Check or equivalent heavy maintenance check;
and |
|
(h) |
upon
receipt of a request from Lessor, notify Lessor, promptly, of the removal of
any Engine for the purpose of Engine Refurbishment. |
|
8.3 |
Lawful
and Safe Operation |
|
(a) |
in
violation of any applicable Regulations or in a manner causing Lessor, Owner,
any Financing Party or GECAS to be in violation of any applicable Regulations;
|
|
(b) |
for any
purpose for which the Aircraft was not designed or which is
illegal; |
|
(c) |
to carry
cargo which could reasonably be expected to damage the
Aircraft; |
|
(d) |
in any
circumstances or place where the Aircraft is not covered by the Insurances; or
|
|
(e) |
for
purposes of training, qualifying or re-confirming the status of cockpit
personnel except for the benefit of Lessee’s or Guarantor Affiliates’
cockpit personnel, and then only if the use of the Aircraft for such purpose is
not disproportionate to the use for such purpose of other aircraft of the same
type operated by Lessee. |
|
(i) |
LESSEE
IS SOLELY RESPONSIBLE FOR THE DETERMINATION AND IMPLEMENTATION OF ALL SECURITY
MEASURES AND SYSTEMS NECESSARY OR APPROPRIATE FOR THE PROPER PROTECTION OF THE
AIRCRAFT (WHETHER ON THE GROUND OR IN FLIGHT) AGAINST (A) THEFT, VANDALISM,
HIJACKING, DESTRUCTION, BOMBING, TERRORISM OR SIMILAR ACTS, DIRECTLY OR
INDIRECTLY AFFECTING IN ANY WAY THE AIRCRAFT OR ANY PART THEREOF, OR ANY
PERSONS WHO (WHETHER OR NOT ON BOARD THE AIRCRAFT) MAY SUSTAIN ANY INJURY OR
DAMAGE AS A RESULT OF ANY SUCH ACTS, (B) THE USE OF THE AIRCRAFT IN ANY ACTS,
INCLUDING THOSE OF DESTRUCTION, BOMBING, TERRORISM OR SIMILAR ACTS, AND (C) THE
TAKING, THEFT OR USE OF ANY PRODUCTS, CHEMICALS, GOODS, OR MATERIALS OF ANY
KIND, FORM, OR NATURE LOCATED ON BOARD THE AIRCRAFT OR BEING TRANSPORTED VIA
THE AIRCRAFT; |
|
(ii) |
LESSEE’S
IMPLEMENTATION OF SUCH SECURITY MEASURES AND SYSTEMS IS A MATERIAL OBLIGATION
OF LESSEE UNDER THE LEASE, AND THAT LESSOR SHALL HAVE ABSOLUTELY NO
RESPONSIBILITY THEREFOR, AND |
|
(iii) |
LESSEE,
BEING IN SOLE OPERATIONAL CONTROL OF THE AIRCRAFT AND BEING IN THE BUSINESS OF
OPERATING COMMERCIAL AIRCRAFT, IS UNIQUELY IN A POSITION TO IDENTIFY AND
IMPLEMENT THOSE MAINTENANCE AND SECURITY MEASURES AS ARE NECESSARY TO COMPLY
WITH ALL APPLICABLE REGULATIONS, AND AS ARE OTHERWISE |
|
8.4 |
Subleasing
and Wet leasing |
|
(a) |
LESSEE
WILL NOT, WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR, SUB-LEASE OR PART WITH
POSSESSION OF THE AIRCRAFT, THE ENGINES OR ANY PART EXCEPT that Lessee may part
with possession (i) with respect to the Aircraft, the Engines or any Part to
the relevant manufacturers for testing or similar purposes or to a maintenance
facility for service, repair, maintenance or overhaul work, or alterations,
modifications or additions to the extent required or permitted by the Lease,
(ii) with respect to an Engine or Part, as expressly permitted by the Lease,
and (iii) on a wet-lease which complies with Clause 8.4(d). |
|
(b) |
Lessor
shall grant its consent to a proposed sublease (a “Permitted
Sub-Lease”) of the
Aircraft to a sublessee (the “Permitted
Sub-Lessee”) by
Lessee if the following conditions are fulfilled: |
|
(i) |
No
Default shall have occurred and be continuing; |
|
(ii) |
notwithstanding
such Permitted Sub-Lease, Lessee shall remain primarily responsible to Lessor
hereunder and the Permitted Sub-Lease, by its terms, shall be expressly subject
and subordinate in all respects to the Lease; |
|
(iii) |
the
Permitted Sub-Lease shall include clauses identical to or having the same
substantive effect as Clauses 2.1, 5.6, 5.7(a), 5.8, 5.10, 5.12, 5.16(a),
5.17(a), 5.22, 8 (excluding Clause 8.4), 9, 10, 11, 13, 15.1, 15.8 (subject to
the final two sentences of this sub-clause (iii)) and 16, and Schedules 2
(Clause 1.1), 7 and 9 of the Lease save that a Permitted Sub-Lease may impose
additional or more stringent obligations on, or give fewer rights to, any
sublessee than are imposed on Lessee under the provisions of the Lease and that
the term of the Permitted Sub-Lease shall not be capable of extending beyond
the Expiry Date. In connection with any Permitted Sub-Lease, Lessee shall use
reasonable endeavours to procure that the governing law of the Permitted
Sub-Lease shall be New York law or English law. However, the governing law may
be the law of another country if the legal opinion (of counsel qualified in
such country) attached to the Permitted Sub-Lease states that the Permitted
Sub-Lease constitutes binding and enforceable obligations of the sublessee
under such law (such opinion may be subject to qualifications acceptable to
Lessor and its advisors, being such qualifications as are normal to opinions
given by U.S. or English counsel in relation to similar
transactions); |
|
(iv) |
the
rights, title and interests of Lessor in and to the Aircraft and the Lease
shall be duly evidenced and protected to the satisfaction of Lessor (including
as to the making of all necessary filings and registrations) and such interests
shall not, in Lessor’s reasonable opinion, be prejudiced by the Permitted
Sub-Lease; |
|
(v) |
Lessee
and the Permitted Sub-Lessee shall have executed and delivered to Lessor a
security assignment in respect of the Permitted Sub-Lease together with an
acknowledgement of such assignment each such document to be in such form as
Lessor shall reasonably require, provided always that such security assignment
shall not require Lessor to give its prior consent to: (aa) any modification or
variation of the amount of rent payable by the Permitted |
|
(vi) |
the
Permitted Sub-Lessee shall be a reputable air carrier and shall, on or before
delivery of the Aircraft to the Permitted Sub-Lessee under the Permitted
Sub-Lease, hold all necessary consents, licenses, approvals, permits and
authorizations
required under the applicable law of the state of incorporation or
establishment of such carrier for the public transport of passengers or cargo
and operation of the Aircraft; |
|
(vii) |
the
Aircraft shall not be re-registered outside the State of Registry without the
prior written consent of Lessor which shall not be unreasonably withheld.
Lessor shall be entitled to withhold such consent if the Sub-Lessee is based or
incorporated in a jurisdiction which Lessor reasonably determines to be
unacceptable in terms of political or judicial risk; |
|
(viii) |
prior to
delivery of the Aircraft to the Permitted Sub-Lessee, Lessee shall deliver to
Lessor the equivalent of the Lessor Conditions Precedent applicable to such
Permitted Sub-Lessee and, within a reasonable period prior to the execution by
Lessee of any sublease, Lessee will provide Lessor with a copy of the draft
sublease in order for Lessor to satisfy itself that the conditions set out in
this Clause as to form of the sublease are fulfilled. Prior to delivery of the
Aircraft under any sublease, Lessee will provide Lessor with an original
counterpart of the sublease duly executed by Lessee and Sub-Lessee;
|
|
(ix) |
Lessee
shall be responsible for all reasonable costs incurred by Lessor in connection
with the Permitted Sub-Lease; |
|
(x) |
the
Permitted Sub-Lease shall provide that no further subleases of the Aircraft by
the Permitted Sub-Lessee shall be permitted, except that the Permitted
Sub-Lessee may enter into a wet lease which conforms generally to the
requirements of a wet lease as set forth in Clause 8.4 (d) below and/or an
interchange arrangement with respect to the Aircraft on the terms set out in
the Lease; and |
|
(xi) |
Lessee
shall give written notice to Lessor of any proposed sublease at least thirty
(30) days prior to the date on which it is proposed that such sublease be
executed (which notice shall include the identity of any proposed change in the
State of Registry and the Habitual Base of the Aircraft and, if then
determined, the term and the delivery date of the proposed
sublease). |
|
(c) |
In
circumstances where the conditions set out in (b) above are not fulfilled in
relation to any proposed Permitted Sub-Lease, the consent of Lessor to such
Permitted Sub-Lease shall not be unreasonably withheld. |
|
(d) |
Lessee
shall be permitted to wet lease the Aircraft provided such wet lease
constitutes an arrangement whereby Lessee agrees to furnish the Aircraft to a
third party pursuant to which the Aircraft (i) shall be operated solely by
regular employees of Lessee possessing all current certificates and licenses
that are required by applicable Regulations, including by the State of
Registry, and shall remain in the operational control and possession of Lessee,
(ii) shall be subject to insurance coverage as provided for in the Lease, (iii)
shall be used and operated in accordance with the |
|
8.5 |
Inspection |
|
(a) |
Lessee
will permit Lessor’s and Owner’s and the Financing Parties’
Representative’s representative to inspect the Aircraft at any time.
Unless a Default has occurred and is continuing, any such Person will give
Lessee reasonable notice of inspection and will ensure that it does not result
in a disruption to the regular operation of the Aircraft. Lessee shall comply
with the reasonable requests of Lessor’s and Owner’s and the
Financing Parties’ Representative’s representative during the course
of an inspection, including any request to travel on the flight deck of the
Aircraft as an observer, subject to any applicable
Regulations. |
|
(b) |
The cost
of conducting an inspection shall be borne by Lessor, Owner or the Financing
Parties’ Representative, as the case may be, unless an Event of Default
has occurred and is continuing. |
|
(c) |
No
liability or obligation will be incurred by Lessor, Owner, Financing
Parties’ Representative or the Financing Parties, as the case may be, by
reason of non-exercise by any of them of the inspection rights referred to in
this Clause. |
|
8.6 |
Ownership;
Property Interests; Related Matters |
|
(a) |
Lessee
will: |
|
(i) |
fix and
maintain Nameplates containing the Nameplate Inscription in a prominent
position in the cockpit or cabin of the Aircraft and on each Engine as
follows: |
|
(ii) |
in any
circumstance where such interests are relevant, take all reasonable steps to
make sure that other relevant Persons know about the rights or interests of
Owner, Lessor and the Financing Parties’ Representative in the Aircraft,
including (without limitation) ensuring that wherever practicable the interests
of Lessor, Owner and the Financing Parties’ Representative are duly
registered in the International Registry. |
|
(b) |
Lessee
will not: |
|
(i) |
represent
that it is the owner of the Aircraft or that it has an economic interest
(equivalent to ownership) in the Aircraft for Tax treatment or other
purposes; |
|
(ii) |
do or
permit to be done anything which may reasonably be expected to expose the
Aircraft, any Engine or any Part to penalty, forfeiture, impounding, detention,
appropriation, damage or destruction and without prejudice to the foregoing, if
any such penalty, forfeiture, impounding, detention or appropriation, damage or
destruction occurs, give Lessor |
|
(iii) |
represent
to others that Owner, Lessor or any Financing Party is associated with or
responsible for the business activities and/or flight operations of Lessee;
|
|
(iv) |
allow
the Aircraft or Owner’s, Lessor’s or any Financing Parties’
Representatives’ interest in it or the Lease to become or remain subject
to any Security Interest (other than a Permitted Lien); |
|
(v) |
except
as required by subClause (a)(i) hereof, allow the name of any Person to be
placed on the Aircraft or any Engine as a designation that could reasonably be
interpreted as a claim of ownership or as a Security Interest; provided that
Lessee may place thereon, or allow a Permitted Sub-Lessee to place thereon, its
customary livery, colors and insignia; or |
|
(vi) |
allow
any interests conflicting with (whether or not taking priority over) the
interests of Lessor, Owner, or the Financing Parties’ Representative to be
registered at the International Registry without the prior written consent of
Lessor, Owner or the Financing Parties’ Representative (as the case may
be). |
|
8.7 |
General |
|
(a) |
maintain
its business as a commercial scheduled airline, will preserve its corporate
existence (other than as provided in subclause (f) below or in connection with
a solvent reconstruction or reorganization on terms which shall have previously
been approved in writing by Lessor); |
|
(b) |
ensure
that the Habitual Base remains the habitual base of the Aircraft unless Lessor
gives prior written consent to a change therein or as may otherwise be provided
in the Aircraft Lease Agreement; |
|
(c) |
not
operate, maintain, insure or deal with, or keep records with respect to, the
Aircraft in a manner which discriminates against the Aircraft adversely insofar
as Lessor’s, Owner’s or Financing Parties’ interests are
concerned, when compared with the manner in which Lessee operates, maintains,
insures or deals with, or keep records with respect to, similar aircraft,
engines or parts in Lessee’s fleet; |
|
(d) |
not
change the designated service of process agent set forth in Clause 15.8(c),
except upon thirty (30) days prior written notice thereof to Lessor;
|
|
(e) |
not
liquidate or dissolve; |
|
(f) |
except
as otherwise provided in this Clause 8.7(f), if Lessor is a company
incorporated in Ireland and Lessee operates the Aircraft to any destination in
the European Union, then Lessee shall promptly submit a duly executed and
completed VAT Form 60A to the Office of the Revenue Commissioners of Ireland in
the form attached as Schedule 12 (“Form 60A”) and shall supply a copy
of that application to Lessor. Lessee shall complete, execute and deliver (with
a copy to Lessor) a new Form 60A every two years after delivery of the initial
Form 60A. However, if more than 50% of Lessee’s operations occur on
international routes, then Lessee shall not be required to deliver to Lessor
Form 60A, but shall instead, promptly deliver to Lessor, upon Lessor’s
request, a statement that more than 50% of Lessee’s operations
|
|
(g) |
not
consolidate with or merge into or with any other corporation or other Person,
and not convey, transfer, lease or otherwise dispose of all or substantially
all of its property and other assets to, or acquire all or any substantial part
of the property or other assets or capital stock of (if such acquisition is
analogous in either purpose or effect to a consolidation or merger), any
corporation or other Person, unless Lessee provides Lessor, to the extent
permitted by Law, with not less than thirty (30) days prior written notice of
such transaction describing such transaction in reasonable detail and providing
Lessor with evidence reasonably satisfactory to Lessor demonstrating that such
transaction will comply with the following requirements of this Clause and
unless: |
|
(i) |
such
transaction shall not have any material adverse effect on the rights of Lessor,
Owner or the Financing Parties’ Representative under or in respect of the
Lease or the Aircraft; and all applicable requirements of the Financing
Documents shall have been complied with in connection therewith, provided
always that the Lessee shall be notified as soon as practicable of such
applicable requirements; |
|
(ii) |
the
Person formed by or surviving such consolidation or merger or the Person which
acquires by conveyance, transfer, lease or other disposition all or
substantially all of such property and other assets or stock (the
“Successor Entity”): (A) shall be a corporation organized and
existing under the laws of the State of Incorporation; (B) immediately after
giving effect to such transaction, shall be Lessee or shall have acquired or
succeeded to all or substantially all of the property and other assets of
Lessee (if such assets are being transferred) as an entirety, and shall have a
tangible net worth of not less than Lessee’s tangible net worth
immediately prior to such transaction; and (C) shall execute and deliver to
Lessor such recordations and filings with any Governmental Entity and such
other documents as Lessor determines shall be reasonably necessary or advisable
to evidence, or in connection with, such consolidation, merger, sale, lease,
transfer or other disposition and an agreement, in form and substance
reasonably satisfactory to Lessor which is a legal, valid and binding
assumption by such Successor Entity of the due and punctual performance and
observance of each covenant and condition of the Lease and the other related
documents to which Lessee is a party, and a legal opinion from counsel to such
effect and otherwise in such form and substance reasonably satisfactory to
Lessor; and |
|
(iii) |
no
Default shall have occurred and be continuing or shall occur as a result
thereof. |
|
8.8 |
Records |
|
(a) |
in the
English language, except for those documents originally delivered to Lessee in
a language other than English; |
|
(b) |
according
to best airline practice; and |
|
(c) |
so they
meet the requirements of applicable Regulations (including FAR 91.417 to the
extent applicable, unless otherwise agreed by Lessor in the Lease ) and
Lessee’s Maintenance Program. |
|
8.9 |
Protection |
|
(a) |
maintain
the registration of the Aircraft with the Air Authority in the name of Lessor
and reflecting any Security Interest in favor of the Financing Parties’
Representative, provided Lessee is fully informed of any such Security Interest
(or, if such registration cannot be maintained in the name of Lessor, on a
basis which reflects the interests of Lessor, as lessor and Owner as owner, and
of the Financing Parities Representative to the greatest extent permitted by
applicable Law) and not do or suffer to be done anything which could reasonably
be expected to affect that registration; |
|
do all
acts and things (including, without limitation, making any filing or
registration with the Air Authority or any other Government Entity or as
required to comply with the Geneva Convention where applicable) and execute and
deliver, notarise, file, register and record all documents (including, without
limitation, any amendment of the Lease) as may be reasonably required by
Lessor: |
|
(i) |
upon or
following any change or proposed change in the ownership or financing of the
Aircraft (and Lessor shall reimburse Lessee for all reasonable out-of-pocket
expenses, including legal fees, incurred by Lessee at the time of such change
in complying with Lessor’s requirements under this paragraph (i)); or
|
|
(ii) |
following
any modification of the Aircraft, any Engine or any Part or the permanent
replacement of any Engine, or Part in accordance with this Agreement, so as to
ensure that the rights of Lessor as lessor, Owner as owner of the Aircraft, and
the Financing Parties’ Representative and under the Lease apply with the
same effect as before; or |
|
(iii) |
to
establish, maintain, preserve, perfect and protect the rights of Lessor as
lessor under the Lease, the interest of Owner as owner of the Aircraft, and the
Financing Parties’ Representative but at Lessor’s expense to the
extent that such act or thing relates to any assignment or Transfer pursuant to
Clause 14.2 entered into after the date hereof. |
|
(c) |
from
time to time, at the request of the Lessor, to take any actions which the
Lessor reasonably determines should be taken to ensure that the Cape Town
Convention is applicable to the Lease and that the interests of any Indemnitee
in relation to the Aircraft are effectively registered at the International
Registry. This would include, in |
|
(d) |
where
requested by Lessor in writing, consent to one or more persons designated by
Lessor as Lessee’s professional user or professional user entity for
dealings with the International Registry in relation to the Aircraft and shall
not revoke that authority without Lessor’s prior written consent.
|
|
8.10 |
Maintenance
and Repair |
|
(a) |
the
Aircraft is kept airworthy in all respects (except where such airworthiness has
been suspended for all aircraft of the same model or type through no fault of
Lessee or the Aircraft is temporarily unairworthy while it is undergoing
maintenance or repair) and in good operating condition and
repair; |
|
(b) |
Lessee
has a current, valid certificate of airworthiness (issued by the Air Authority
in the appropriate public transport category) for the Aircraft, except where
such certificate has been suspended for all aircraft of the same model or type
through no fault of Lessee or the Aircraft is undergoing maintenance or repair
(and in that event Lessee shall refrain from operating the Aircraft until such
time as the certificate or airworthiness is restored); |
|
(c) |
the
Aircraft complies with all applicable Regulations (including the standards
stipulated by FAR Part 129 as appropriate depending on the type of the Aircraft
unless otherwise provided in the Aircraft Lease Agreement) and the requirements
of all Airworthiness Directives and all service bulletins designated by the
State of Design or State of Registry as “mandatory,” and to be
carried out before the Return Occasion or within the AD Compliance Period;
|
|
(d) |
all
maintenance is carried out according to Lessee’s Maintenance Program
through the Maintenance Performer in at least the same manner and with at least
the same care, including maintenance scheduling, modification status and
technical condition, as is the case with respect to similar aircraft owned or
otherwise operated by Lessee; |
|
(e) |
all
repairs and Parts associated with such repairs must meet the applicable OEM
standard and specifications (approved or recommended by the OEM as the case may
be) except in the case of: |
|
(i) |
Parts
which are installed on the Airframe and are not classified as “Critical
Components” or Life Limited Components. A Critical Component means a Part
identified as critical by the FAA in accordance with FAA Order 8110.42B.
; |
|
(ii) |
All
Parts which are installed on the Engine and which are manufactured by a vendor
other than the OEM and marked as PMA parts but which are licensed by the OEM
and included in the OEM Aircraft or OEM Engine Illustrated |
|
(f) |
if any
Airworthiness Directive is issued by the FAA, or, to the extent that the same
have legal effect, the JAA, for which terminating action is required to be
performed by Lessee pursuant to Clause 8.10(c)and if the actual cost incurred
by Lessee (as evidenced by invoice(s) and supporting documentation reasonably
satisfactory to Lessor) in performing or causing to be performed such
Airworthiness Directive exceeds the AD Threshold, Lessor shall, following
receipt of the invoice in such amount and provided no Default has occurred and
is continuing, reimburse to Lessee an amount calculated in accordance with the
following formula: |
|
8.11 |
Removal
of Engines and Parts |
|
(a) |
General:
Lessee
must replace, within thirty (30) Business Days thereof, any Engine that has
suffered an Engine Event of Loss in accordance with Clause 8.11(b), and any
Part which is permanently removed from the Aircraft must be replaced in
accordance with Clause 8.11(b). Any Part which otherwise is lost, stolen,
destroyed, seized, obsolete, confiscated, damaged beyond repair or permanently
rendered unfit for any reason, must be replaced in accordance with Clause
8.11(b). Any Engine or Part may be installed on another aircraft Lessee owns or
leases in accordance with Clause 8.11(c). Lessee may temporarily install an
engine or part in accordance with Clause 8.11(d). Lessee shall obtain from the
owner and lessor of any airframe on which an Engine is installed and from any
holder of a Security Interest in any airframe on which an Engine is installed,
an agreement in writing (which agreement, in the case of a lease or Security
Interest, may be contained in the applicable lease or Security Interest
agreement covering such airframe) that such Person will respect the interests
of Owner and Lessor as owner and lessor, respectively, and of the Financing
Parties’ Representative, in such Engine and will not acquire or claim any
rights, title or interest in such Engine as a result of such Engine being
installed on such other airframe at any time while such Engine is subject to
the Lease. In the event Lessee shall have received from a lessor of or secured
party holding a Security Interest in any airframe leased to Lessee or owned by
Lessee a written agreement pursuant to the foregoing sentence and the lease or
Security Interest covering such airframe also covers an engine or engines owned
by the lessor under such lease or subject to such Security Interest in favor of
the secured party under such Security Interest, Lessor hereby agrees for the
benefit of such lessor or secured party that Lessor will respect the interest
of such lessor or secured party and will not acquire or claim as against such
lessor or secured party, any rights, title or interest in any such engine as a
result of such engine being installed on the Airframe at any time while such
engine is |
|
(b) |
Permanent
Replacement: If
Lessee permanently replaces an Engine or Part: |
|
(i) |
in the
case of an Engine, the replacement engine must be of the same manufacturer and
model, or at Lessee’s option an engine of an improved model, and have
equivalent or better remaining useful life, modification status, time elapsed
since hot section refurbishment, cold section refurbishment, reduction gear
overhaul, life limited part utility, serviceability and equivalent remaining
warranty status as the Engine it replaces, and is otherwise of an equivalent or
better value and utility and suitable for installation and use on the Airframe
without impairing the value or utility of the Airframe and compatible with the
remaining installed Engine(s); |
|
(ii) |
in the
case of a Part, the replacement part must be an OEM approved part except in the
case of: |
|
(aa) |
Parts
which are installed on the Airframe and are not classified as “Critical
Components” or Life Limited Components. A Critical Component means a Part
identified as critical by the FAA in accordance with FAA Order 8110.42B;
and |
|
(bb) |
All
Parts which are installed on the Engine and which are manufactured by a vendor
other than OEM and marked as PMA parts but which are licensed by the OEM and
included in the OEM Aircraft or OEM Engine Illustrated Parts Catalog
“IPC” (excluding any revisions to the IPC requested by Lessee to
include such parts); |
|
(iii) |
the
replacement engine or part must have become and remain, until replaced in
accordance with this Clause, the property of Owner free from Security Interests
(other than Permitted Liens), and subject to the applicable Financing Documents
(provided, that Lessee shall have been notified of the requirements of such
financing documents); |
|
(iv) |
Lessee
must have full details of the source and maintenance records of the replacement
engine or part and in the case of serialized rotable parts, also have a
complete service history; and |
|
(v) |
comply
with the requirements of the Financing Documents in connection with any such
replacement including to provide such legal opinions and other documents as may
be required under the Financing Documents. |
|
(c) |
Other
Aircraft: An
Engine or Part may be installed on an aircraft which Lessee owns or leases
if: |
|
(i) |
no Event
of Default has occurred and is continuing; |
|
(ii) |
Lessee
or a Permitted Sub-Lessee has operational control over the
aircraft; |
|
(iii) |
Owner
keeps the ownership of the Engine or Part concerned until replaced in
accordance with Clause 8.11(b); |
|
(iv) |
the
Engine or Part does not become subject to a Security Interest and the
applicable airframe is not subject to any Security Interest except a Permitted
Lien or a lease or Security Interest described in Clause 8.11(a) above;
|
|
(v) |
the
Engine or Part is replaced in accordance with Clause 8.11(b) or is removed from
the aircraft as soon as practicable under Lessee’s engine rotation program
but not later than the Expiry Date; and |
|
(vi) |
Insurance
is maintained by Lessee in respect of such Engine or Part in accordance with
the terms of the Lease. |
|
(d) |
Temporary
Replacement: Lessee
may install any engine or part on the Aircraft as a temporary replacement
if: |
|
(i) |
no Event
of Default has occurred and is continuing; |
|
(ii) |
there is
not available an engine or part complying with the requirements of the Lease
for a replacement Engine or Part; |
|
(iii) |
it would
result in an unreasonable disruption of the operation of the Aircraft or the
business of Lessee to have the Aircraft grounded until such time as an engine
or part complying with the requirements of the Lease for a replacement Engine
or Part becomes available for installation; |
|
(iv) |
as soon
as practicable (under Lessee’s engine rotation program in the case of an
engine) after an engine or part is installed on the Aircraft, but no later than
the Expiry Date, Lessee removes that engine or part and replaces it with the
original Engine or Part (or by an engine or part which is allowed by Clause
8.11(b)); and |
|
(v) |
the
Insurances for the Aircraft are not adversely affected. |
|
(e) |
Pooling/Interchange: So long
as no Default has occurred and is continuing Lessee may lease, let or hire or
charter or otherwise part with possession of an Engine or Part (on terms
conferring no more than a contractual right against Lessee but not rights
against the Engine or Part) pursuant to pooling arrangements approved by Lessor
to which Lessee is a party and which either: |
|
(i) |
are
arrangements involving responsible, solvent commercial air carriers or aircraft
operators or the manufacturers or suppliers of the Aircraft, Engine or
Part; |
|
(ii) |
do not
contemplate the transfer of title to the pooled Engine; and |
|
(iii) |
provide
that Lessor will be sole payee in respect of any loss or damage to the Engine
or Part or provide for Owner, as owner, to acquire title to a substitute
|
|
8.12 |
Equipment
Changes |
|
(a) |
is
expressly permitted or required by the Lease; or |
|
(b) |
has the
prior written approval of Lessor (such approval not to be unreasonably
withheld) and does not diminish or impair the value, utility, condition, or
airworthiness of the Aircraft (save that Lessor’s approval shall not be
required for painting or minor cabin interior modifications not affecting the
structure of the Aircraft). |
|
8.13 |
Title
on an Equipment Change |
|
9. |
INSURANCE |
|
9.1 |
Insurances |
|
9.2 |
Change |
|
9.3 |
Insurance
Undertakings and Information |
|
(a) |
comply
with the terms and conditions of each policy of the Insurances and not do,
consent or agree to any act or omission which: |
|
(i) |
invalidates
or may invalidate the Insurances; or |
|
(ii) |
renders
or may render void or voidable the whole or any part of any of the Insurances;
or |
|
(iii) |
brings
any particular liability within the scope of an exclusion or exception to the
Insurances; |
|
(b) |
not take
out without the prior written approval of Lessor any insurance or reinsurance
in respect of the Aircraft other than that which is required under the Lease
unless relating solely to hull total loss, business interruption, profit
commission, engine breakdown cover and deductible risk and which does not in
any event adversely affect the Insurances required to be maintained hereunder;
|
|
(c) |
commence
renewal procedures at least thirty (30) days prior to expiry of any of the
Insurances and provide to Lessor: |
|
(i) |
if
requested by Lessor, a written status report of renewal negotiation fourteen
(14) days prior to each expiry date of the Insurances; |
|
(ii) |
telecopy
confirmation of completion of renewal prior to each policy expiry date;
|
|
(iii) |
certificates
of insurance (and where appropriate certificates of reinsurance), and
broker’s (and any reinsurance broker’s) letter of undertaking in a
form acceptable to Lessor in English, detailing the coverage and confirming the
insurers’ (and any reinsurers’) agreement to the specified insurance
requirements of the Lease and opining that the Insurances comply with the
requirements of the Lease within seven (7) days after each renewal date;
|
|
(d) |
on
request, provide to Lessor copies of documents or other information evidencing
the Insurances; and |
|
(e) |
provide
any other insurance and reinsurance related information, or assistance, in
respect of the Insurances as Lessor may reasonably require. |
|
9.4 |
Failure
to Insure |
|
(a) |
to pay
the premiums due or to effect and maintain insurances satisfactory to it or
otherwise remedy Lessee’s failure in such manner (including, without
limitation to effect and maintain an “owner’s interest” policy)
as it considers appropriate so as to ensure that the relevant requirements of
the Lease are complied with. Any sums so expended by it will become immediately
due and payable by Lessee to Lessor together with interest thereon at the
Interest Rate, from the date of expenditure by it up to the date of
reimbursement by Lessee; and |
|
(b) |
at any
time while such failure is continuing to require the Aircraft to remain at any
airport or to proceed to and remain at any airport designated by it until the
failure is remedied to its satisfaction. |
|
9.5 |
Continuing
Indemnity |
|
10. |
INDEMNITY |
|
(a) |
Except
as provided in Clause 10(b) below, Lessee agrees to assume liability for and to
indemnify each of the Indemnitees against and agrees to pay on demand any and
all Losses which an Indemnitee suffers or incurs at any time, whether directly
or indirectly, arising out of, related to or in any way connected
with: |
|
(i) |
the
ownership, maintenance, repair, possession, transfer of ownership or
possession, import, export, registration, storage, modification, leasing,
insurance, inspection, testing, design, date processing, subleasing, use,
condition or other matters relating to the Aircraft (regardless of whether such
Losses are based on strict liability in tort, any act or omission, including
the negligence, of any Indemnitee, or otherwise); or |
|
(ii) |
any
breach by Lessee of any of its obligations under the Lease;
or |
|
(iii) |
the
design of any article or material in the Aircraft, any Engine or any Part or
its operation, including any defect in design and regardless of whether it is
discoverable, and any infringement of patent, copyright, trademark, design or
other proprietary right claimed by any Person or a breach of any obligation of
confidentiality claimed to be owed to any Person. |
|
(b) |
Lessee
is not required to indemnify any particular Indemnitee under this Clause, to
the extent a particular Loss is: |
|
(i) |
caused
solely by the gross negligence or willful misconduct of that
Indemnitee; |
|
(ii) |
caused
solely by Lessor’s breach of the Lease which does not result from a
Default; |
|
(iii) |
related
to any Taxes; |
|
(iv) |
is
expressly subject to indemnification of the same Indemnitee by another
provision of the Lease; |
|
(v) |
consists
of (a) a loss of profit to an Indemnitee, (b) a dimunition in the value of the
Aircraft other than due to an Event of Loss, (c) Lessor’s normal
administrative costs and expenses, or (d) costs and expenses expressly imposed
by the Lease on Lessor except in a case where any of (a) through (d) is caused
by Lessee’s breach of its obligations under the Lease; |
|
(vi) |
caused
solely by an event which occurs before the commencement of the Term (except
where the Loss is suffered during the Term as a result of a pre-Delivery defect
in or otherwise arises out of or relates to or is any way connected with the
manufacture, design, maintenance, repair, rebuilding, overhaul or modification
of the Aircraft); or |
|
(vii) |
caused
solely by an event which occurs after the proper redelivery of the Aircraft to
Lessor hereunder and is not attributable to any act, omission, event or
circumstance occurring prior to such redelivery. |
|
(c) |
In the
event that Lessor or another Indemnitee recovers separate, non-revocable
compensation for a Loss from a third party which duplicates in whole or in part
the indemnification received from Lessee hereunder, Lessor or such other
Indemnitee, as the case may be, shall reimburse Lessee to the extent of such
duplicate payment. |
|
(d) |
Lessor
agrees that it shall, promptly after it has actual knowledge of a claim which
will give rise to a Loss described in Clause 10 (a) ( a “Claim”),
give written notice (providing reasonable details) of such Claim to Lessee,
whereupon, provided no Default shall have occurred and be continuing, Lessee
shall have the right, upon receipt of Lessor’s prior written consent
(which consent will not be unreasonably withheld or delayed), to assume and
conduct promptly and diligently the defense of the relevant Indemnitee with
respect to a Claim, provided further that: |
|
(i) |
Lessee
shall have consulted, and continue to consult, with Lessor as to the
appropriate defense; |
|
(ii) |
Lessee
shall have made adequate provision or reserve with respect to such Claim and
any associated costs and expenses (having regard to the nature and amount of
such Claim, cost and expense) and shall have indemnified or agreed to indemnify
the Indemnitees as a result of such Claim or its defense by
Lessee; |
|
(iii) |
None of
the Indemnitees shall be prevented by this Clause 10(d) from settling or paying
any Claim immediately if such Indemnitee is absolutely required by applicable
law to do so, and it will use all commercially reasonable efforts to preserve
Lessee’s rights and ability to contest such Claim; and |
|
(iv) |
Lessor
shall be entitled, upon consultation with and prior written notice to Lessee,
to terminate Lessee’s participation in the defense of a Claim where an act
or failure to act by Lessee indicates that the interest of the Indemnitees
could reasonably be expected to be materially adversely prejudiced by
Lessee’s continued defense of such Claim. |
|
(e) |
The
delay or failure of Lessor to give notice to Lessee in accordance with Clause
10(d) will not discharge or release Lessee from any of its Indemnification
obligations under Clause 10(a), provided, however, that Lessee shall not be
required to indemnify Lessor in respect of any increase in any Claim to the
extent that that increase arises solely and directly as a result of a breach by
Lessor of its obligations to notify lessee in accordance with Clause
10(d). |
|
11. |
EVENTS
OF LOSS |
|
11.1 |
Events
of Loss |
|
(a) |
If an
Event of Loss occurs prior to Delivery of the Aircraft, the Lease will
immediately terminate and except as expressly stated in the Lease neither party
will have any further obligation, other than pursuant to Clause 5.21 and Clause
3 of Schedule 4, except that Lessor will promptly return the Deposit (if any)
to Lessee and return to Lessee or cancel any Letter of Credit or
Guaranty. |
|
(b) |
If an
Event of Loss occurs after Delivery, Lessee will pay the Agreed Value to Lessor
on or prior to the earlier of (i) sixty (60) Business Days after the Event of
Loss and (ii) the date of receipt of insurance proceeds in respect of that
Event of Loss (in either case the “Settlement Date”), unless within
that period the Aircraft is restored to Lessor or Lessee and all damage has
been fully repaired to Lessor’s satisfaction (or, in the case of an Event
of Loss coming within paragraph (c) of the definition of Event of Loss and
involving loss of Owner’s title to the Aircraft, if both Owner’s
title to the Aircraft is restored and possession of the aircraft is restored to
either Lessor or Lessee). |
|
(c) |
The
receipt by Lessor of the insurance proceeds in respect of the Event of Loss on
or prior to the Settlement Date shall discharge Lessee from its obligation to
pay the Agreed Value to the Lessor pursuant to this Clause 11.1, provided such
proceeds are not less than the Agreed Value. If the insurance proceeds are paid
initially to Lessee and not to Lessor, they may be retained by Lessee if Lessee
shall have paid the Agreed Value to Lessor, otherwise Lessee shall pay the
Agreed Value to Lessor within 3 Business Days of the receipt by Lessee of such
proceeds (but, in any event, not later than the Settlement Date). If Lessee
pays the Agreed Value to Lessor in accordance with this Clause 11.1(c) and
provided, no Event of Default shall have occurred and be continuing, Lessor
shall promptly assign to Lessee its rights under the Insurances to receive the
insurance proceeds in respect of the Event of Loss (to the extent that such
proceeds shall not have been paid to Lessee and, provided further, that upon
cure or non-continuance of any such Event of Default, Lessee shall be entitled
to an assignment of such rights). |
|
(d) |
Subject
to the rights of any insurers and reinsurers or other third party, upon
irrevocable payment in full to Lessor of the Agreed Value and all other amounts
which may be or become payable to Lessor under the Lease, and if Lessee
requests such transfer, Lessor will, or will procure that Owner will, without
recourse or warranty (except as to the absence of Lessor’s Liens) transfer
to Lessee or will procure that Owner transfers to Lessee legal and beneficial
title, subject to no Lessor’s Liens (but otherwise without warranty), to
the Aircraft, on an AS IS, WHERE IS basis, and will at Lessee’s expense,
execute and deliver or will procure that Owner executes and delivers such bills
of sale and other documents and instruments as Lessee may reasonably request to
evidence (on the public record or otherwise) such transfer, free and clear of
all rights of Lessor and Owner and Lessor Liens. Lessee shall indemnify, on an
After-Tax Basis, Lessor, Owner and each other Tax Indemnitee for all fees,
expenses and Taxes other than Lessor Taxes incurred by Lessor, Owner or any
other Tax Indemnitee in connection with any such transfer. |
|
11.2 |
Requisition |
|
(a) |
the Rent
and other charges payable under the Lease will not be suspended or abated
either in whole or in part, and Lessee will not be released from any of its
other obligations (other than operational and maintenance obligations with
which Lessee is unable to comply solely by virtue of the requisition, provided
that promptly following the expiry of such requisition Lessee shall restore the
Aircraft to the condition required by the Lease); and |
|
(b) |
so long
as no Default has occurred and is continuing, Lessee will be entitled to any
compensation paid by the requisitioning authority in respect of such
authority’s use of the Aircraft, such Engine or such Part during the Term
(provided, that upon cure of any such Default, Lessee shall be entitled to any
such hire paid by the requisitioning authority) . Lessee will, as soon as
practicable after the end of any such requisition, cause the Aircraft to be put
into the condition required by the Lease. Lessor will be entitled to all
compensation payable by the requisitioning authority in respect of any change
in the structure, state or condition of the Aircraft arising during the period
of requisition, and Lessor will apply such compensation in reimbursing Lessee
for the cost of complying with its obligations under the Lease in respect of
any such change, but, if any Default has occurred and is continuing, Lessor may
apply the compensation in or towards settlement of any amounts owing by Lessee
under the Lease. |
|
12. |
RETURN
OF AIRCRAFT |
|
12.1 |
Return |
|
12.2 |
Non-Compliance |
|
(a) |
Lessee
shall promptly rectify such non-compliance or failure; |
|
(b) |
Lessee
shall not use the Aircraft in flight operations except those related directly
to the redelivery of the Aircraft to Lessor; |
|
(c) |
all
Lessee’s obligations and covenants under the Lease will remain in full
force until Lessee so redelivers the Aircraft; and |
|
(d) |
Lessee
shall pay Rent to Lessor at a rate per month equal to the amount of Rent
payable in respect of the last scheduled Rental Period, calculated on a per
diem basis. |
|
12.3 |
Redelivery |
|
12.4 |
Acknowledgement |
|
13. |
DEFAULT |
|
13.1 |
Events |
|
13.2 |
Rights
and Remedies |
|
(a) |
accept
such repudiation and by notice to Lessee and with immediate and automatic
effect cause the cancellation of the leasing of the Aircraft (but without
prejudice to the continuing obligations of Lessee under the Lease or to
Lessor’s right to recover damages under paragraph (c) hereof and to be
indemnified against Loss under Clause 13.3), whereupon all rights of Lessee
under the Lease shall cease; and/or |
|
(b) |
proceed
by appropriate court action or actions to enforce performance of the Lease
including the payment of all Rent and all other amounts payable to Lessor or
any Indemnitee pursuant to the terms of the Lease; and/or |
|
(c) |
proceed
by appropriate court action or actions to recover damages (including without
limitation in respect of any Loss as described in Clause 13.3)for the breach of
the Lease; |
|
(d) |
either: |
|
(i) |
enter
upon the premises where all or any part of the Aircraft is located and take
immediate possession of and, at Lessor’s sole option, remove the same
(and/or any engine which is not an Engine but which is installed on the
Airframe, subject to the rights of the lessor or secured party thereof), all
without liability accruing to Lessor for or by reason of such entry or taking
of possession whether for the restoration of damage to property, conversion or
otherwise, caused by such entry or taking, except damages caused by gross
negligence or willful misconduct; or |
|
(e) |
draw
upon the Deposit or the Letter of Credit and apply such amounts to any amounts
owing to Lessor hereunder and/or make demand against any Guarantor for any or
all of the foregoing. |
|
13.3 |
Default
Indemnity |
|
(a) |
any loss
of profit suffered by Lessor because of Lessor’s inability to place the
Aircraft on lease with another lessee on terms as favorable to Lessor as the
Lease, or because whatever use, if any, to which Lessor is able to put the
Aircraft upon its return to Lessor, or the funds arising upon a sale or other
disposal of the Aircraft, is not as profitable to Lessor as the Lease;
|
|
(b) |
any
amount of principal, interest, fees or other sums whatsoever paid or payable on
account of funds borrowed in order to carry any unpaid amount;
|
|
(c) |
any Loss
which may be incurred in repaying funds raised to finance the Aircraft or in
unwinding any swap, forward interest rate agreement or other financial
instrument relating in whole or in part to Lessor’s financing of the
Aircraft; and |
|
(d) |
any Loss
sustained or incurred by Lessor in or as a result of exercising any of its
rights or remedies pursuant to Clause 13.2 or as a result of Lessee’s
failure to redeliver the Aircraft on the date, at the place and in the
condition required by the Lease. |
|
13.4 |
Sale
or Re-Lease |
|
13.5 |
Deregistration |
|
13.6 |
Power
of Attorney |
|
13.7 |
Administration
Order |
|
14. |
ASSIGNMENT |
|
14.1 |
Lessee |
|
14.2 |
Lessor |
|
(a) |
a sale
and leaseback; or |
|
(b) |
a
novation or assignment of the Lease and/or a sale of the Aircraft (including to
a special purpose or securitization or monetization trust, fund, limited
liability company, corporation, partnership or other vehicle or in connection
with any other direct or indirect raising of capital); or |
|
(c) |
a
secured loan financing. |
|
14.3 |
Conditions |
|
(a) |
Quiet
Enjoyment: as a
condition precedent to such Transfer becoming effective, Lessor will procure
that the transferee or any new owner of the Aircraft (except where such new
owner is also the “Lessor” hereunder) or any new holder of a mortgage
over the Aircraft or any holder of an interest in the Aircraft or the Lease (by
way of security or otherwise), as the case may be, shall execute and deliver to
Lessee a letter of quiet enjoyment in respect of Lessee’s use and
possession of the Aircraft in a form substantially similar to Clause 7.1
hereof; and |
|
(b) |
Costs: Lessor
shall reimburse to Lessee its reasonable out-of-pocket expenses (including
reasonable legal fees and expenses) actually incurred in connection with
co-operating with Lessor in relation to any such Transfer referred to in this
Clause 14, provided that such expenses are substantiated to Lessor’s
reasonable satisfaction and provided, further, that no Default has occurred and
is continuing; and |
|
(c) |
Transferee:
Any
transferee of Lessor’s interest in the Lease pursuant to a transfer
described in clause (b) of Clause 14.2, the effect of which is to result
in a release of Lessor from its obligations under the Lease, shall be a Person
(i) that is not, and no subsidiary of such Person nor any shareholder or parent
that controls or owns directly or indirectly more than 50% of the voting
capital of such Person, or any |
|
(d) |
No
Increase to Lessee’s Obligations: No
Transfer by Lessor shall have any adverse effect upon Lessee’s then
existing rights and obligations under the Lease or result in any increased
financial liability (including without limitation, any greater liability in
respect of Taxes) on the part of Lessee that would not have occurred but for
such Transfer having been effected. |
|
15. |
MISCELLANEOUS |
|
15.1 |
Illegality |
|
(a) |
Illegality
affecting Lessor or the Lease: If it is
or becomes unlawful in any relevant jurisdiction for Lessor to give effect to
any of its obligations as contemplated by the Lease or to continue the
Lease: |
|
(i) |
Lessor
shall advise Lessee of such illegality and Lessor and Lessee shall consult with
each other in good faith (and on reasonable grounds) regarding any steps which
may be a taken to restructure the transaction to avoid such
illegality; |
|
(ii) |
If,
following the consultation referred to in subclause (i) above, Lessor is of the
reasonable opinion that the transaction may be so restructured without having a
material adverse effect on Lessee and/or any Indemnitee, then the transaction
shall be so restructured, at Lessor’s cost; and |
|
(iii) |
If,
following the consultation referred to in subclause (i) above, Lessor is of the
reasonable opinion that the transaction may not be so restructured without
having a material adverse effect on Lessee and/or any Indemnitee, then Lessor
may by notice in writing to Lessee terminate the leasing of the Aircraft under
the Lease, whereupon: |
|
(A) |
Lessee
shall redeliver the Aircraft to Lessor in accordance with Clause 12 and
Schedule 6 at the latest point in time permitted having regard to the
illegality and Lessor shall make the payments and take the steps (as
appropriate) as prescribed and within the timeframe set forth in subclauses (i)
- (iii) of Clause 5.11 of this CTA; and |
|
(B) |
no
Default shall be deemed to have occurred and Lessor shall not (in such case) be
entitled to the benefit of Clause 13.3 of this CTA. |
| (b) |
Illegality
affecting Lessee or the Lease: |
|
(i) |
If it
becomes unlawful for Lessee to perform any of its obligations under the Lease
or the Lease becomes wholly or partly invalid or unenforceable, then, in such a
case, Lessor and Lessee shall consult together. If, following such
consultation, Lessor, acting reasonably, is of the opinion that alternative
arrangements are reasonably practicable and acceptable to Lessor, Lessor and
Lessee shall cooperate in good faith and on reasonable grounds and enter into
such alternative arrangements (at no cost to Lessor) to enable the transaction
contemplated by the Lease to continue on a lawful, valid and enforceable basis;
provided always that the rights and interests of each Indemnitee will not
thereby be materially prejudiced. |
|
(ii) |
If no
such alternative arrangements shall have been entered into within thirty
Business Days of the commencement of the illegality, invalidity or
unenforceability (as the case may be), then Lessor may at its option (and
without prejudice to any of its other rights under the Lease) at any time
thereafter, by notice to Lessee but with immediate effect, terminate the
letting of the Aircraft (but without prejudice to the continuing obligations of
Lessee under the Lease), whereupon all rights of Lessee under the Lease shall
cease and (A) Lessee shall immediately comply with Clause 12 and (B) the
provisions of Clauses 13.3, 13.4, 13.5, and 13.6 of this CTA shall apply as if
each reference therein to an Event of Default were a reference to the
occurrence of such unlawfulness, invalidity or unenforceability and to such
termination, provided that the provisions of this Clause 15.1(b) shall only
extend to partial illegality, invalidity, or unenforceability where, in
Lessor’s reasonable opinion, such partial illegality, invalidity or
unenforceability would materially adversely affect the interest of Lessor in
the Aircraft, the rights of Lessor under the Lease or Lessee’s ability to
perform its obligations under the Lease. |
|
(iii) |
The
eventualities described in this Clause 15.1(b) shall not be Events of Default,
but shall be lease termination events entitling Lessor to exercise the rights
described in Clause 15.1(b)(ii); provided, always, that any failure by Lessee
to comply with any of its obligations under Clause 15.1(b)(ii) shall constitute
an Event of Default entitling Lessor to invoke the rights and remedies provided
in the case of an Event of Default including without limitation those accorded
by Clause 13.2 . |
|
15.2 |
Waivers,
Remedies Cumulative |
|
15.3 |
Delegation |
|
15.4 |
Severability |
|
(a) |
the
legality, validity or enforceability in that jurisdiction of any other
provision of the Lease; or |
|
(b) |
the
legality, validity or enforceability in any other jurisdiction of that or any
other provision of the Lease. |
|
15.5 |
Remedy |
|
15.6 |
Time
of Essence |
|
15.7 |
Notices |
|
15.8 |
Governing
Law; Jurisdiction;
WAIVER OF JURY TRIAL |
|
(a) |
PURSUANT
TO AND IN ACCORDANCE WITH SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW, THE PARTIES HERETO AGREE THAT THE LEASE IN ALL RESPECTS SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE GOVERNING LAW AS APPLIED TO CONTRACTS
TO BE PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK (EXCLUSIVE OF SECTION 7-101
OF THE NEW YORK GENERAL OBLIGATIONS LAW WHICH IS INAPPLICABLE TO THE LEASE).
THE U.N. CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALES OF GOODS IS NOT
APPLICABLE TO THE LEASE. ALL OF THE TERMS OF THE LEASE MUST BE CONSTRUED IN
ACCORDANCE WITH THE GOVERNING LAW APPLICABLE TO DOMESTIC TRANSACTIONS IN THE
JURISDICTION TO WHICH THE GOVERNING LAW PERTAINS. |
|
(b) |
Without
prejudice to any other mode of service, Lessee: |
|
(i) |
appoints
Kaplan, von Ohlen & Massamillo LLC, 90 Park Avenue, 18th floor,
New York, New York 10016, U.S.A. (attn: Eugene Massamillo, Esq.) as its agent
for service of process relating to any proceedings before the New York courts
in connection with the Lease and agrees to maintain the process agent in New
York notified to Lessor; |
|
(ii) |
agrees
that failure by a process agent to notify Lessee of the process shall not
invalidate the proceedings concerned; and |
|
(iii) |
consents
to the service of process relating to any such proceedings by prepaid mailing
of a copy of the process to Lessee’s agent at the address identified in
paragraph (i) or by prepaid mailing by air mail, certified or registered mail
of a copy of the process to Lessee at the address set forth in Aircraft Lease
Agreement. |
|
(c) |
Lessor
and Lessee each: |
|
(i) |
waives
to the fullest permitted by Law any objection which Lessee may now or hereafter
have to the courts referred to in Clause 15.8(a) above on grounds of
inconvenient forum or otherwise as regards proceedings in connection with the
Lease; |
|
(ii) |
waives
to the fullest extent permitted by Law any objection which it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to the Lease brought in the courts referred to in Clause
15.8(a); and |
|
(iii) |
agrees
that a judgment or order of any court referred to in Clause 15.8(a) in
connection with the Lease is conclusive and binding on it and may be enforced
against it in the courts of any other jurisdiction. |
|
(d) |
Nothing
in this Clause 15.8 limits the right of Lessor or Lessee to bring proceedings
against the other in connection with the Lease in any other court of competent
jurisdiction; or concurrently in more than one jurisdiction. |
|
(e) |
Lessor
and Lessee each irrevocably and unconditionally: |
|
(i) |
agrees
that if the other party brings legal proceedings against it or its assets in
relation to the Lease no sovereign or other immunity from such legal
proceedings (which will be deemed to include suit, court jurisdiction,
attachment prior to judgment, attachment in aid of execution of a judgment,
other attachment, the obtaining of judgment, execution of a judgment or other
enforcement or legal process or remedy) will be claimed by or on behalf of
itself or with respect to its assets; |
|
(ii) |
waives
any such right of immunity which it or its assets now has or may in the future
acquire and agrees that the foregoing waiver shall have the fullest
|
|
(iii) |
consents
generally in respect of any such proceedings to the giving of any relief or the
issue of any process in connection with such proceedings including, without
limitation, the making, enforcement or execution against any property
whatsoever (irrespective of its use or intended use) of any order or judgment
which may be made or given in such proceedings. |
|
(f) |
EACH OF
LESSEE AND LESSOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY AND ALL
RIGHTS TO A JURY TRIAL IN RESPECT OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THE LEASE OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT
MATTER OF THE TRANSACTIONS CONTEMPLATED THEREBY OR THE LESSOR/LESSEE
RELATIONSHIP BEING ESTABLISHED, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS,
TORT CLAIMS, BREACH OF DUTY CLAIMS AND OTHER COMMON LAW AND STATUTORY CLAIMS.
EACH OF LESSOR AND LESSEE REPRESENTS AND WARRANTS THAT EACH HAS REVIEWED AND
VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH ITS LEGAL
COUNSEL. THIS WAIVER IS IRREVOCABLE, AND THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THE LEASE. IN
THE EVENT OF LITIGATION, THIS CLAUSE MAY BE FILED AS A WRITTEN CONSENT TO A
TRIAL BY THE COURT. |
|
15.9 |
Sole
and Entire Agreement;
True Lease |
|
(a) |
constitutes
a “true lease”, and not a “security interest” as defined in
Section 1-201(37) of the UCC; |
|
(b) |
constitutes
a “true lease” for United States federal income tax purposes;
and |
|
(c) |
confers
only a leasehold interest on Lessee in and to the Aircraft on and subject to
the terms of the Lease, and no ownership or other interest with respect to the
Aircraft is provided to Lessee under the Lease. |
|
15.10 |
Indemnitees |
|
15.11 |
Counterparts |
|
15.12 |
Language |
|
15.13 |
Survival |
|
16. |
DISCLAIMERS
AND WAIVERS |
|
16.1 |
Exclusion |
|
(a) |
LESSOR
WILL HAVE NO LIABILITY IN RELATION TO, AND LESSOR HAS NOT AND WILL NOT BE
DEEMED TO HAVE ACCEPTED, MADE OR GIVEN (WHETHER BY VIRTUE OF HAVING DONE OR
FAILED TO DO ANY ACT, OR HAVING ACQUIRED OR FAILED TO ACQUIRE ANY STATUS UNDER
OR IN RELATION TO THE LEASE OR OTHERWISE), ANY GUARANTIES, COVENANTS,
WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, WITH RESPECT TO, THE
AIRCRAFT OR ANY ENGINE OR PART, INCLUDING (BUT NOT LIMITED TO) THE TITLE,
DESCRIPTION, AIRWORTHINESS, COMPLIANCE WITH SPECIFICATIONS, OPERATION,
MERCHANTABILITY, QUALITY, |
|
(b) |
LESSOR
SHALL NOT HAVE ANY OBLIGATION OR LIABILITY WHATSOEVER TO LESSEE (WHETHER
ARISING IN CONTRACT OR IN TORT, AND WHETHER ARISING BY REFERENCE TO NEGLIGENCE,
MISREPRESENTATION OR STRICT LIABILITY OF LESSOR OR OTHERWISE)
FOR: |
|
(i) |
ANY
LIABILITY, LOSS OR DAMAGE CAUSED OR ALLEGED TO BE CAUSED DIRECTLY OR INDIRECTLY
BY THE AIRCRAFT OR ANY ENGINE OR BY ANY INADEQUACY THEREOF OR DEFICIENCY OR
DEFECT THEREIN OR BY ANY OTHER CIRCUMSTANCE IN CONNECTION
THEREWITH; |
|
(ii) |
THE USE,
OPERATION OR PERFORMANCE OF THE AIRCRAFT OR ANY RISKS RELATING
THERETO; |
|
(iii) |
ANY
INTERRUPTION OF SERVICE, LOSS OF BUSINESS, REVENUE OR ANTICIPATED PROFITS OR
ANY OTHER DIRECT, INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE (AS DEFINED IN
SECTION 2A-520 OF THE UCC OR OTHERWISE); OR |
|
(iv) |
THE
DELIVERY, OPERATION, SERVICING, MAINTENANCE, REPAIR, IMPROVEMENT OR REPLACEMENT
OF THE AIRCRAFT, ANY ENGINE OR ANY PART. |
|
16.2 |
Waiver |
|
16.3 |
Confirmation |
|
17. |
BROKERS
AND OTHER THIRD PARTIES |
|
17.1 |
No
Brokers |
|
17.2 |
Indemnity |
| By: | /s/ [illegible] | |||
| Name: |
Pablo Bauer |
|||
| Title: | Attorney in fact |
| By: | /s/ [illegible] | |||
| Name: |
Carlos Prado C. |
|||
| Title: | Senior Vice President Corporate Investments |
|
(a) |
each
engine of the manufacture and model specified in the Aircraft Lease Agreement
for the Aircraft which Lessor offers to Lessee for delivery with the Airframe
on the Delivery Date, such engines being described as to serial numbers on the
Certificate of Technical Acceptance; and |
|
(b) |
any
Replacement Engine, with effect from the time when title thereto has passed to
Owner in accordance with the Lease; |
|
(a) |
the
actual or constructive, compromised, arranged or agreed total loss of the
Aircraft (including any damage to the Aircraft which results in an insurance
settlement on the basis of a total loss, or requisition for use or hire which
results in an insurance settlement on the basis of a total loss); or
|
|
(b) |
the
Aircraft being destroyed, damaged beyond economic repair or permanently
rendered unfit for normal use for any reason whatsoever; or |
|
(c) |
the
Aircraft being requisitioned for title, or title to the Aircraft being
otherwise compulsorily acquired or any other permanent deprivation of title to
the Aircraft by the government of the State of Registry or any other Government
Entity; or |
|
(d) |
the
Aircraft being hijacked, stolen, confiscated, detained, seized, condemned or
requisitioned for use or hire for a period of more than sixty (60) days (or
ninety (90) days in the case of requisition for use or hire by the government
of the State of Registry). |
|
(a) |
moneys
borrowed or raised; |
|
(b) |
any
liability under any debenture, bond, note, loan stock, acceptance, documentary
credit or other security; |
|
(c) |
the
acquisition cost of any asset to the extent payable before or after the time of
acquisition or possession; or |
|
(d) |
any
guaranty, indemnity or similar assurance against financial loss of any person
in respect of the above. |
|
(a) |
if
requested by Lessor, the consolidated management accounts of Lessee (in
Dollars, and comprising a balance sheet and profit and loss statement and cash
flow forecasts) in English prepared for the most recent previous financial
quarter certified by a qualified financial officer of Lessee as being true and
correct, to be provided as soon as reasonably practicable after necessary
filings with applicable regulatory authorities; and |
|
(b) |
as soon
as available but not in any event later than 180 days after the last day of
each financial year of Lessee, to the extent permitted by Law, its audited
consolidated balance sheet in English as of such day and its audited
consolidated profit and loss statement for the year ending on such day (each in
Dollars). |
|
(a) |
any
national government, political subdivision thereof, or local jurisdiction
therein; |
|
(b) |
any
instrumentality, board, commission, court, or agency of any of the above,
however constituted; and |
|
(c) |
any
association, organization, or institution of which any of the above is a member
or to whose jurisdiction any thereof is subject or in whose activities any of
the above is a participant. |
|
(a) |
cannot
or is deemed by applicable Law to be unable to pay its debts; |
|
(b) |
stops
trading or threatens to stop trading; |
|
(c) |
goes
into liquidation or is wound up in any jurisdiction (other than a solvent
re-organization which Lessor approves in writing); |
|
(d) |
goes
into administrative receivership or administration, has a receiver appointed
over any of its assets or is the subject of any similar proceedings in any
country; |
|
(e) |
proposes
a voluntary arrangement or scheme of arrangement to creditors;
or |
|
(f) |
enters
into any process or scheme for the benefit of creditors as a whole under which
their rights are suspended or affected. |
|
(a) |
claims
against Lessor or Owner or the property of either which are not related to, or
do not arise directly or indirectly as a result of, the transactions
contemplated by or permitted under the Lease; |
|
(b) |
(i) any
act or omission of the Lessor or Owner which is not related to, or does not
arise directly or indirectly as a result of, the transactions contemplated by,
consented to by the Lessee or permitted under the Lease or taken as a result of
the occurrence or continuance of an Event of Default or (ii) a breach by the
Lessor of any of its obligations under the Lease; |
|
(c) |
claims
against the Lessor or Owner arising out of any transfer by the Lessor or Owner
of all or any portion of its respective interest in the Aircraft or the Lease
other than a transfer resulting from an Event of Default or any other transfer
permitted by the Lease other than an assignment or transfer by Lessor pursuant
to Clause 14.2; |
|
(d) |
claims
against the Lessor in respect of or arising as a result of any Lessor Taxes;
or |
|
(e) |
the
financing of the Aircraft. |
|
(a) |
any Tax
imposed solely as the result of the incorporation residence or activities of a
Tax Indemnitee in the jurisdiction imposing the liability unrelated to the Tax
Indemnitee’s dealings with Lessee pursuant to the Lease or to the
transactions contemplated by the Lease or the operation of the Aircraft by
Lessee; |
|
(b) |
any Tax
imposed on the net income, profits or gains of a Tax Indemnitee by (i) any
Government Entity in the State of incorporation and/or residence of that Tax
Indemnitee or (ii) any Government Entity in any other jurisdiction where the
Tax Indemnitee is liable to such Tax but excluding any such Tax, if and to the
extent that it results from (i) the transactions contemplated
by the Lease or (ii) the use, operation, presence or registration of the
Aircraft, the Airframe, any Engine or any Part in the jurisdiction imposing the
Tax, or (iii) the situs of organization, any place of business or any activity
of Lessee or any other Person having use, possession or custody of the
Aircraft, the Airframe, any Engine or any part in the jurisdiction imposing the
Tax; |
|
(c) |
any Tax
imposed with respect to any event occurring before the date of the Lease or
after the Expiry Date and unrelated to the Tax Indemnitee’s dealings with
Lessee pursuant to the Lease or to the transactions contemplated by the
Lease; |
|
(d) |
any Tax
imposed solely as a result of the sale or other disposition of any part of any
Tax Indemnitee’s interest in the Lease or in any part of the Aircraft,
unless such sale or disposition occurs as a consequence of an Event of
Default; |
|
(e) |
any Tax
imposed as a result of the willful misconduct or recklessness of a Tax
Indemnitee, or as a result of a material breach of any covenant, representation
or warranty of Lessor under the Lease; and |
|
(f) |
any Tax
imposed (or to the extent increased) as a result solely of any financing or
refinancing of the Aircraft undertaken by Lessor (excluding financing or
refinancing undertaken by Lessor at the request of Lessee). |
|
(a) |
any
component, furnishing or equipment (other than a complete Engine or engine)
incorporated or installed in or attached to or furnished with the Aircraft on
the Delivery Date or thereafter if paid for or otherwise provided by or on
behalf of Lessor; and |
|
(b) |
any
other component, furnishing or equipment (other than a complete Engine or
engine), with effect from the time when title thereto has passed to Owner
pursuant to the Lease; |
|
(a) |
any lien
for Taxes not assessed or, if assessed, not yet due and payable, or being
diligently contested on reasonable grounds by appropriate proceedings;
|
|
(b) |
any lien
of a repairer, mechanic, hangar-keeper or other similar lien arising in the
ordinary course of business by operation of Law in respect of obligations which
are not overdue or are being diligently contested on reasonable grounds by
appropriate proceedings; |
|
(c) |
any
Lessor Lien; and |
|
(d) |
the
rights of others under any sublease or arrangements to the extent expressly
permitted under Clause 8.4. |
|
(a) |
in
relation to any reference to accounts, any company whose accounts are
consolidated with the accounts of Lessee in accordance with accounting
principles generally accepted under accounting standards of the State of
Incorporation; or |
|
(b) |
for any
other purpose, an entity from time to time: |
|
(i) |
of which
another has direct or indirect control or owns directly or indirectly more than
50 percent (50%) of the voting share capital; or |
|
(ii) |
which
is a direct or indirect subsidiary of another under the Laws of the
jurisdiction of its incorporation. |
|
(a) |
war,
civil disturbance or act of any Government Entity; |
|
(b) |
natural
disaster or any other act of God; |
|
(c) |
any Law
of, or any allocation or other action by, a Government Entity or any unexpected
shortage of labor, materials or facilities affecting the
Aircraft; |
|
(d) |
any
damage or Defect; |
|
(e) |
labor
disputes; |
|
(f) |
breach
of contract by any Person (other than Lessor), or other failure to deliver or
redeliver the Aircraft by any Person (whether or not a breach) with possession
or control of the Aircraft (other than by Lessor, if it has possession and
control of the Aircraft), including any failure to deliver or delay in delivery
by any prior lessee, any seller of the Aircraft or any Person performing
modifications or maintenance to the Aircraft and any breach by any prior
lessee, seller or modification or maintenance performer or failure to cooperate
by any prior lessee, seller or modification or maintenance performer, or any
“excusable” or “inexcusable” delay under any previous
lease, purchase or modification or maintenance agreement for the Aircraft, or
any purchase or modification or maintenance agreement for the Aircraft
terminating prior to Delivery (including due to Lessor or an Affiliate of
Lessor voluntarily terminating such agreement) provided any such delay or
termination is not caused by Lessor’s default ; |
|
(g) |
delays
in obtaining the Aircraft or any equipment or services for the Aircraft not
caused by Lessor’s delay or default; |
|
(h) |
any
delay due to Air Authority certifications; or |
|
(i) |
any
other cause beyond the control of Lessor. |
| 1.1 |
Lessee’s
Representations and Warranties |
|
(a) |
Status:
It has
been properly formed as a company and has since been maintained according to
all Regulations applicable to Lessee. |
|
(b) |
Non-Conflict:
In
entering into the Lease and carrying out its obligations, it does not
contravene or breach any Regulation applicable to Lessee. |
|
(c) |
Power
and Authority: It has
the authorizations it needs to enter into the Lease and to carry out its
obligations, and, at the time of execution, it will have the power to enter
into the Relevant Documents. |
|
(d) |
Legal
Validity: Its
obligations under the Lease are legal, valid and binding against Lessee in
accordance with their terms. |
|
(e) |
No
Event of Default: No Event
of Default has occurred and is continuing or would occur because of
Delivery. |
|
(f) |
Litigation:
It is
not involved in any litigation or other dispute which could reasonably be
expected to affect its financial condition or its ability to carry out its
obligations in any material way. |
|
(g) |
Accounts:
Its
audited accounts and those of its Affiliates most recently delivered to Lessor:
|
|
(i) |
have
been prepared according to generally accepted accounting principles in the
State of Incorporation; and |
|
(ii) |
fairly
represent the financial condition of Lessee and its Affiliates as at the date
to which they were drawn up and since that date there has been no material
change in Lessee’s ability to carry out its obligations or its financial
condition or the financial condition of its Affiliates . |
|
(h) |
Full
Disclosure: Neither
the audited accounts referred to in paragraph (g) nor any other document
provided to Lessor by Lessee for the purposes of the Lease contains any untrue
statement of a material fact or leaves out any important fact which could make
any of them misleading. |
|
(i) |
No
Immunity: |
|
(i) |
Lessee
is subject to civil and commercial Law with respect to its obligations under
the Lease; and |
|
(ii) |
Neither
Lessee nor any of its assets is entitled to any right of immunity, and the
entry into and performance of the Lease by Lessee constitute private and
commercial acts. |
|
(j) |
Material
Adverse Change: There
has been no material adverse change in the financial condition of Lessee and
Lessee Affiliates since the date to which the accounts most recently provided
to Lessor on or prior to the Delivery Date were drawn up. |
|
(k) |
Registration:
|
|
(i) |
It is
not necessary or advisable under the Laws of the State of Incorporation, the
State of Registry or the Habitual Base in order to ensure the validity,
effectiveness and enforceability of the Lease or to, establish, perfect or
protect the property rights, to the extent such property rights have been
created by the Lease, of Lessor or Owner in the Aircraft or any Engine or Part
that the Lease or any other instrument relating thereto be filed, registered or
recorded or that any other action be taken or if any such filings,
registrations, recordings or other actions are necessary or advisable, the same
have been effected or shall have been effected on or before the Delivery Date;
and |
|
(ii) |
under
the Laws of the State of Incorporation, the State of Registry and the Habitual
Base the property rights of Lessor and Owner in the Aircraft, to the extent
such rights have been created under the Lease have been fully established and
perfected to the extent necessary to ensure that such rights will be recognized
and will have priority over any claims of other creditors of Lessee in the
Aircraft other than legally perfected liens and applicable insolvency
laws. |
|
(l) |
Taxes: Lessee
has delivered all necessary returns and payments due to the tax authorities in
the State of Incorporation, the State of Registry and the Habitual Base and is
not required by Law to deduct any Taxes from any payments under the Lease other
than any requirement to deduct withholding tax from payments of Rent hereunder
in respect of which Lessee will as soon as reasonably practicable following the
Delivery Date, obtain an exemption from the Ministry of Finance in the State of
Incorporation. |
| 1.2. |
Lessor’s
Representations and Warranties |
|
(a) |
Status:
It has
been properly formed as a company with limited liability and has since been
maintained according to all Regulations applicable to Lessor. |
|
(b) |
Non-Conflict:
In
entering into the Lease and carrying out its obligations, it does not
contravene or breach any Regulation applicable to Lessor. |
|
(c) |
Power
and Authority: It has
the authorizations it needs to enter into the Lease and to carry out its
obligations, and it has the power to enter into the Relevant
Documents. |
|
(d) |
Legal
Validity: Its
obligations under the Lease are legal, valid and binding against Lessor in
accordance with their terms. |
|
(e) |
No
Immunity: |
|
(i) |
Lessor
is subject to civil commercial law with respect to its obligation under the
Lease; and |
|
(ii) |
neither
Lessor nor any of its assets is entitled to any right of immunity and the entry
into and performance of the Lease constitute private and commercial
acts. |
| (f) |
Ownership: On the
Delivery Date and throughout the Term, Lessor will have good and sufficient
title to or interest in the Aircraft to lease the Aircraft to Lessee on the
terms set forth herein. |
|
1. |
Preliminary
Conditions |
|
(a) |
Opinion:
evidence that an opinion in substantially the form of Schedule 8 will be issued
on the Delivery Date by internal legal counsel (if Lessee is Lan Cargo S.A. )
or independent legal counsel acceptable to Lessor in the State of Registry, the
Habitual Base and the State of Incorporation; |
|
(b) |
Approvals:
evidence of the issue of each approval, license and consent which may be
required in relation to, or in connection with the performance by Lessee of any
of its obligations under the Lease (including without limitation the remittance
by Lessee to Lessor in Dollars of all amounts payable under the
Lease); |
|
(c) |
Import:
evidence that any required import license, and all customs formalities,
relating to the import of the Aircraft into the Habitual Base have been
obtained or complied with, and that the import of the Aircraft into the
Habitual Base is exempt from Taxes; |
|
(d) |
Process
Agent: a
letter from the process agent appointed by Lessee in the Lease accepting that
appointment; |
|
(e) |
Licenses:
|
|
(f) |
Air
Traffic Control: a
letter from Lessee addressed to each relevant air traffic control authority
pursuant to which Lessee authorizes the addressee to issue to Lessor, upon
Lessor’s request from time to time, a statement of account of all sums due
by Lessee to the authority in respect of all aircraft (including, without
limitation, the Aircraft) operated by Lessee; |
|
(g) |
Deregistration
Power: an
irrevocable power of attorney substantially in the form of Schedule 13A and, if
the Cape Town Convention including Article XIII of the Protocol is applicable
to the Lease, an irrevocable deregistration and export request authorization
substantially in the form of Schedule 13B attached in each case (in both
English and Spanish) duly executed by Lessee, notarized and legalized,
authorizing Lessor or such other Person as Lessor may from time to time specify
to do any thing or act or to give any consent or approval which may be required
to obtain deregistration of the Aircraft and to export the Aircraft from the
Habitual Base upon termination of the leasing of the Aircraft under the Lease;
|
|
(h) |
Letter
of Credit (if applicable): the
form of the Letter of Credit; |
|
(i) |
UCC:
protective
Uniform Commercial Code Financing Statements with respect to the Lease and the
Aircraft in a form acceptable to Lessor shall have been executed and delivered
by Lessee on a form furnished by Lessor and duly filed at Lessor’s expense
in each jurisdiction requested by Lessor; |
|
(j) |
Guaranty (if
applicable): the form of the Guaranty; |
|
(k) |
Acknowledgement
and Agreement re Assignment (if
applicable): an acknowledgement of and certain agreements with respect to the
assignment by Lessor of this Lease to Owner and Financing Parties’
Representative in the form previously provided to Lessee or as Owner or
Financing Parties’ Representative may otherwise reasonably request;
|
|
(l) |
Cape
Town Registration: If
applicable, confirmation that Lessee has duly registered itself with the
International Registry and has consented to a Person approved by GECAS as its
professional user or professional user entity for dealings with the
International Registry; and |
|
(m) |
General: such
other documents as Lessor may reasonably request. |
|
2. |
Final
Conditions |
|
(a) |
Final
Documents: Lessor
shall receive on or before the Delivery Date each of the
following: |
|
(i) |
Certificate
of Technical Acceptance: the
Certificate of Technical Acceptance, dated and fully completed, and executed by
Lessor and Lessee; |
|
(ii) |
Opinions: a
signed original of each of the opinions referred to in Clause 1(a) of this
Schedule, dated the Delivery Date; |
|
(iii) |
Payments: all
sums due to Lessor under the Lease on or before the Delivery Date including the
first payment of Rent and, if applicable, the balance of the Deposit;
|
|
(iv) |
Insurances:
certificates of insurance, an opinion and undertaking from Lessee’s
insurance broker and other evidence satisfactory to Lessor that Lessee is
taking the required steps to ensure due compliance with the provisions of the
Lease as to Insurances with effect on and after the Delivery Date;
|
|
(v) |
Financial
Information: the
latest Financial Information of Lessee as requested by
Lessor; |
|
(vi) |
Letter
of Credit (if applicable): the
Letter of Credit; |
|
(vii) |
Guaranty
(if applicable): the
Guaranty, duly executed and delivered by Guarantor, a certified copy of
Guarantor’s Board of Directors approving the issuance of the Guaranty and
a legal opinion or legal opinions of Guarantor’s in-house chief legal
counsel acceptable to Lessor in respect of the Guaranty in form and substance
acceptable to Lessor and its legal counsel; |
|
(viii) |
Lessee’s
Maintenance Program: such
information and documents relating to the Lessee’s Maintenance Program as
Lessor may reasonably require; |
|
(ix) |
Registration
and Filings:
evidence that on the Delivery Date the Aircraft has been validly registered
under the Laws of the State of Registry and that all filings, registrations,
recordings and other actions have been or will be taken which are necessary or
advisable to ensure the validity, effectiveness and enforceability of the Lease
and to perfect and protect the property rights, to the extent such rights exist
or are created by the Lease or an applicable Security Interest, of Lessor,
Owner and any holder of such Security Interest in the Aircraft, any Engine or
any Part; |
|
(x) |
Organization
and Authorization: (i) the
corporate documents of Lessee as they exist on the Delivery Date and (ii)
resolutions of the board of directors of Lessee approving the terms and
conditions of the Lease and authorizing the execution, delivery and performance
of the Lease; |
|
(xi) |
General: such
other documents as Lessor may reasonably request on a timely basis in advance
of the Scheduled Delivery Date; |
|
(b) |
Representations/Warranties: the
representations and warranties of Lessee in Schedule 2 shall be correct, and
would be correct if repeated on Delivery; |
|
(c) |
No
Default: no
Default shall have occurred and be continuing on Delivery or would be
reasonably likely to occur from the leasing of the Aircraft to Lessee under the
Lease; and |
|
(d) |
Aircraft
Title:
Acquisition by Lessor from a third party of title to the Aircraft or other
interest therein sufficient to lease the Aircraft to Lessee on the terms and
conditions set forth in the Lease. |
|
3. |
Lessee
Condition Precedents |
|
(a) |
a
certificate signed by a duly authorized officer of Lessor certifying that
Lessor’s representations and warranties in Schedule 2 are true and correct
on the Delivery Date as if given on such date; |
|
(b) |
a side
letter to Lessee confirming that a signed Certificate of Insurance
incorporating the provisions of AVN67B as currently operated in the Aviation
Insurance industry will, when provided at delivery, constitute evidence of
insurance in form and substance acceptable to the Lessor as required in the
Lease; |
|
(c) |
acquisition
by Lessor from Lessee or a third party of title to the Aircraft or other
interest therein sufficient to lease the Aircraft to Lessee on the terms and
conditions set forth in the Lease; |
|
(d) |
a
certified copy of the bill of sale relating to the Aircraft (duly notarized,
consularized and apostilled as necessary) if required for registration of the
Aircraft in the State of Registry; and |
|
(e) |
a valid
Export Certificate of Airworthiness. |
|
1. |
Licenses |
|
(a) |
Except
for the Export Certificate of Airworthiness, it is the responsibility of Lessee
to obtain all licenses, permits or approvals necessary to export or transport
the Aircraft from the Delivery Location. |
|
(b) |
Lessor
will provide Lessee with any required data and information relating to the
Aircraft or Lessor as are reasonably available to Lessor for the purposes of
obtaining any such licenses, permits or approvals. |
|
2. |
Inspection |
|
(a) |
Subject
to any applicable purchase agreement (but without prejudice to Lessee’s
rights to inspect the Aircraft prior to the Delivery Date), Lessee shall
inspect the Aircraft (including such rights as Lessor has to be present and
inspect, on an ongoing basis, the manufacture of the Aircraft and including a
demonstration flight which shall be undertaken for the benefit of Lessee at no
expense to Lessee with up to two (2) representatives of Lessee on the Aircraft
as observers) to ensure that the Aircraft fulfils the Delivery Condition
Requirements. |
|
(b) |
If
Lessee’s inspection of the Aircraft shows that the Aircraft does not
fulfill the Delivery Condition Requirements, Lessor will correct any defects
and make the Aircraft available for re-inspection by Lessee provided that, in
Lessor’s reasonable opinion, it is not impracticable or prohibitively
expensive to correct the defect. |
|
(c) |
If
Lessor, acting in good faith, notifies Lessee that it does not intend to
correct the defect (referred to in paragraph (b) of this Clause 2), either
party may terminate the Lease. |
|
3. |
Indemnity |
|
LESSEE: |
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Title: |
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LESSOR: |
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| 1.1 |
FINAL
INSPECTION |
|
(a) |
inspect
the Aircraft Documents and Records; |
|
(b) |
inspect
the Aircraft (including an examination of all compartments and bays, with
Lessee to open or remove panels as reasonably required by Lessor or Owner),
uninstalled Parts and the APU (including a complete video borescope inspection
of the APU); |
|
(c) |
inspect
the Engines, including (i) a complete video borescope inspection of (A) the low
pressure and high pressure compressors, (B) combuster area and (C) turbine area
and (ii) engine condition runs (including full take-off power engine run-up
performed in accordance with the performance test in the Manufacturer’s
maintenance manual, and the Engines shall not exceed corrected limits for all
parameters using temperature corrected charts), and power assurance runs; and
|
|
(d) |
observe
a two hour demonstration flight at Lessee’s cost (with Lessor’s and
Owner’s representatives as on-board observers). |
| 1.2 |
GENERAL
CONDITION |
|
(a) |
be in
the same configuration as at Delivery after giving effect to any post-Delivery
modifications, repairs or maintenance to the Aircraft paid for or otherwise
provided by or on behalf of Lessor (or as permitted by the Lease or as
otherwise mutually agreed), be in as good operating condition and appearance as
when delivered to |
|
(b) |
have
installed the full complement of equipment, parts, accessories, furnishings and
loose equipment as when originally delivered to Lessee (and after giving effect
to any post-Delivery modifications, repairs or maintenance paid for or
otherwise provided by or on behalf of Lessor and unless and as otherwise
permitted by the Lease or mutually agreed) and the Aircraft (including the
Aircraft Documents and Records) shall be in a condition suitable for immediate
registration with the FAA (assuming that the Owner qualifies for such
registration) and immediate operations under JAR 121 or FAR Part 121 as
appropriate depending on the type of the Aircraft (unless otherwise provided in
the Aircraft Lease Agreement) with a new operator, without waiver, unless the
benefit of such waiver is applicable to the next operator of the Aircraft, or
restriction; and if any of the engines or parts tendered for redelivery with
the Aircraft is not one of the Engines or Parts referred to in the Certificate
of Technical Acceptance or a Replacement Engine installed pursuant to Clause
8.11(b) following an Engine Event of Loss, Lessor shall have no obligation to
accept such engine or part unless Lessee furnishes to Lessor all the documents
and evidence in respect of such engine or part in accordance with Clause
8.11(b), as if such engine were a Replacement Engine or replacement Part, and
otherwise complies with such Clause 8.11(b) with respect
thereto; |
|
(c) |
have in
existence a valid and effective certificate of airworthiness (and if required
by Lessor, a valid and effective export certificate of airworthiness) with
respect to the Aircraft issued by the Air Authority (in the case of an export
certificate of airworthiness no earlier than 10 days prior to the redelivery);
|
|
(d) |
comply
with the manufacturer’s original specifications except as modified in
accordance with the Manufacturer’s service bulletins or letters,
Airworthiness Directives, Air Authority approved data or otherwise as permitted
by the Aircraft Lease Agreement; |
|
(e) |
have
undergone, immediately prior to redelivery, the Redelivery
Check; |
|
(f) |
have had
accomplished all outstanding Airworthiness Directives affecting the Aircraft
issued by the FAA requiring action during the Term or within the AD Compliance
Period. For this purpose, compliance shall be by terminating action
if: |
|
(i) |
Lessee
has complied by terminating action for other aircraft of the same model and
series then operated by Lessee, except where such terminating
|
|
action
was required under the terms of the Airworthiness Directive as a result of a
finding during an inspection which precluded further ongoing inspections to
achieve adherence to the Airworthiness Directive; or |
|
(ii) |
the
latest date permitted by such Airworthiness Directive for required compliance
by terminating action falls within the AD Compliance Period. |
|
(g) |
have
installed all applicable vendor’s and manufacturer’s service bulletin
kits received free of charge by Lessee during the Term that are appropriate for
the Aircraft and to the extent not installed, those kits will be furnished free
of charge to Lessor; |
|
(h) |
have the
fuselage, empennage, wings, pylons, cowlings and flight controls sanded,
re-placarded and painted white in accordance with standard industry practice,
including any required re-balancing of flight controls and required re-weighing
or recalculation of the Aircraft or the Aircraft weight; |
|
(i) |
have all
signs and decals clean, secure and legible; |
|
(j) |
have no
open, deferred, continued, carry over or placarded maintenance items or watch
items or placarded log book items, and all other log book discrepancies shall
be cleared; |
|
(k) |
all
discrepancies discovered during the inspections described above which exceed
the Manufacturer’s maintenance manual allowable limits for in-service
aircraft shall have been repaired in accordance with Air Authority-approved
procedures; |
|
(l) |
all
repairs of a temporary or interim nature, requiring repetitive inspections or
future upgrading, including external doublers with blind fasteners, shall be
upgraded to permanent repair. For the avoidance of doubt, a permanent repair
shall be defined as either a Category A or Category B repair in accordance with
the B777-200 SRM: |
|
(m) |
all
systems shall be fully operational for their intended functions in accordance
with the Manufacturer’s maintenance manual
specifications. |
| 1.3 |
COMPONENTS |
|
(a) |
Each
Flight Hour or Cycle controlled Hard Time Component (other than the APU, but
including the components installed on the APU) shall have not less than the
Minimum Component Flight Hours or the Minimum Component Cycles (whichever is
more restrictive) of life remaining to the next scheduled removal, in
accordance with the Lessee’s Maintenance Program and shall be supported by
appropriate certification documentation indicating TSN, CSN, TSO and CSO in the
form of JAR form 1 or FAA form 8130-1, as applicable; for this purpose
“Hard Time Component” means any component which has a limited on-wing
life in accordance with the Lessee’s Maintenance Program and which can
have life fully restored through appropriate maintenance, but excluding from
such definition Engine LLPs, a whole engine, a whole APU and a complete landing
gear (but not excluding the Hard Time Components within such engine, APU or
landing gear); |
|
(b) |
Each
calendar-limited component including safety equipment will have not less than
its Minimum Component Calendar Life remaining to the next scheduled removal in
accordance with the Lessee’s Maintenance Program; |
|
(c) |
Each
“on-condition” and “condition-monitored” component will be
serviceable and include FAA certification by appropriate FAA form 8130-1
certification unless same has not been removed from the Aircraft; |
|
(d) |
The
installed Flight Hour of Cycle controlled components as a group will have an
average of total flight time since new of not more than that of the
Airframe; |
|
(e) |
Each
Airframe Life-Limited Component will have not less than the Minimum Component
Flight Hours and the Minimum Component Cycles remaining to next scheduled
removal and will be supported by certification documentation necessary to
demonstrate back-to-birth traceability; for this purpose “Airframe-Life
Limited Component” means a component with an ultimate life which cannot be
restored through appropriate maintenance. |
| 1.4 |
ENGINES |
|
(a) |
Each
Engine (or a Replacement Engine as and to the extent permitted by Clause
1.2(b)) will be installed on the Aircraft and comply with the
following: |
|
(i) |
Each
Engine will have not less than the Minimum Engine Flight Hours and Minimum
Engine Cycles expected life remaining to the next removal. The expected life
remaining will be determined by the inspection and checks accomplished in
accordance with the Lease as listed below: |
| (ii) |
borescope
inspection; |
| (iii) |
engine
condition monitoring sage data; |
| (iv) |
OATL
assessment or minimum last ten (10) Flight Hours; |
| (v) |
ground
runs; |
| (vi) |
technical
log analysis; and |
| (vii) |
previous
shop visit assessment (if applicable); |
|
(b) |
Each
Engine shall have just completed at the Redelivery Location a hot (including
combustion chamber) and cold section video borescope inspection, which
inspection shall be performed at Lessor’s expense, and a power assurance
run performed at Lessee’s expense in accordance with the Lessee’s
Maintenance Program or Manufacturer’s maintenance manual and any defects
discovered in such inspections which exceed the Engine manufacturer’s
in-service limits shall be corrected at Lessee’s expense. Lessee shall
cause such borescope inspections to be performed and to be recorded on
videotape by an agency selected by Lessor and shall provide Lessor with a copy
of such videotape on the Return Occasion. No Engine shall be on
“watch” for any reason requiring any special or out of sequence
inspection. Each Engine shall comply with the operations specification of
Lessee without waiver or exceptions. All items beyond the Engine
manufacturer’s in-service limits shall be repaired; |
|
(c) |
Each
Engine Life-Limited Part will have not less than the Minimum Engine LLP Cycles
remaining per the manufacturer’s then current limitations for the part
number in question, and will be supported by certification documentation
necessary to demonstrate back-to-birth traceability; for this purpose
“Life Limited Part” means a component with an ultimate life which
cannot be restored through appropriate maintenance; and |
|
(d) |
Each
Engine will have no less than the Minimum Engine Cycles and the Minimum Engine
Flight Hours before any defect, condition or restriction requires any
inspection, testing, repair or replacement in accordance with the Engine
manufacturer’s maintenance manual limits. |
| 1.5 |
FUSELAGE,
WINDOWS AND DOORS |
|
(a) |
The
fuselage will be free of major dents and abrasions in excess of the limits
specified in Manufacturer’s maintenance manual or SRM, as applicable,
loose or pulled or missing rivets and all structural repairs shall be permanent
repairs. For the avoidance of doubt, a permanent repair shall be defined as
either a Category A or Category B repair in accordance with the B777-200
SRM: |
|
(b) |
Windows
will be free of delamination, blemishes, crazing, in excess of the limits
specified in the Manufacturer’s maintenance manual or SRM, as applicable,
and will be properly sealed; |
|
(c) |
Doors
will be free moving, correctly rigged and be fitted with serviceable seals;
and |
|
(d) |
Lessee
will supply a dent and scratch survey with specific locations at redelivery
that encompasses all previously repairs and damage that is within the
Manufacturer’s limits on the Aircraft. |
| 1.6 |
WINGS
AND EMPENNAGE |
|
(a) |
Leading
edges will be free from damage in excess of the limits specified in the
Manufacturer’s maintenance manual or structural repair manual;
and |
|
(b) |
Unpainted
surfaces of the wings and empennage will be polished. |
| 1.7 |
INTERIOR
AND COCKPIT |
|
(a) |
Carpet
will be in good condition and freshly cleaned prior to redelivery. Carpet will
be free from stains, frays and tears and will meet all existing FAR fire
resistance regulations; |
|
(b) |
Sidewalls,
ceilings, floor coverings, seats, overhead bins and bulkhead coverings will be
in good condition with no frays or tears and will meet all existing FAR fire
resistance regulations; and |
|
(c) |
All
seats will be in good working order and all seat covers will be freshly cleaned
prior to redelivery. Seat belts will be of matching color and be free from
stains, frays and tears and have TSO tags attached. |
| 1.8 |
LANDING
GEAR; WHEELS AND BRAKES |
|
(a) |
The
Landing Gear and wheel wells will be clean, free of leaks and repaired as
necessary; |
|
(b) |
Each
installed Landing Gear shall have no more Cycles accumulated than the Airframe
and, Minimum Landing Gear Flight Hours and/or Minimum Landing Gear Cycles
and/or Minimum Landing Gear Calendar Time, shall have not less than the Minimum
Landing Gear Flight Hours and the Minimum Landing Gear Cycles and the Minimum
Landing Gear Calendar Time to the next scheduled overhaul or removal, as the
case may be, in accordance with the then current Manufacturer’s
Maintenance Planning Document or Lessee’s Maintenance Program;
and |
|
(c) |
The
wheels and brakes will have not less than half of their useful life
remaining. |
| 1.9 |
RETURN
OF AUXILIARY POWER UNIT (APU) |
| 1.10 |
CORROSION
|
|
(a) |
The
Aircraft shall be in compliance with the Manufacturer’s corrosion
prevention and control program (CPCP) requirements; |
|
(b) |
The
entire fuselage will be substantially free from corrosion according to the
Manufacturer’s maintenance manual; and |
|
(c) |
Fuel
tanks will be free from contamination and corrosion according to the
Manufacturer’s maintenance manual. |
| 1.11 |
FUEL |
| 1.12 |
MAINTENANCE
PROGRAM |
|
(a) |
Prior to
the Return Occasion and upon Lessor’s or Owner’s request, Lessee will
provide Lessor or Owner or its agent reasonable access to the Lessee’s
Maintenance Program and the Aircraft Documents and Records in order to
facilitate the Aircraft’s integration into any subsequent operator’s
fleet; and |
|
(b) |
Lessee
will, if requested by Lessor or Owner to do so, provide sufficient access to
Lessee’s Maintenance Program in order to integrate the Aircraft to the
next operator’s maintenance program. Lessor and any Person to whom Lessor
grants access to Lessee’s Maintenance Program shall agree that it will not
disclose the contents of the Lessee’s Maintenance Program to any Person
except to the extent necessary to monitor Lessee’s compliance with the
Lease and/or to bridge the maintenance program for the Aircraft from the
Lessee’s Maintenance Program to another program after the Return
Occasion. |
|
1.13 |
Aircraft
Documents |
|
A. |
Certificates |
|
A001 |
Certificate
of Airworthiness |
|
A002 |
Current
Aircraft Registration |
|
A003 |
C of A
for Export (if applicable) |
|
A004 |
Noise
Limitation Certificate (AFM page) |
|
A005 |
Radio
Station License |
|
A007 |
Aircraft
deregistration confirmation |
|
A008 |
Burn
Certificates - Cabin Interiors - as follows: |
|
Certification
of compliance with the fire blocking requirements as outlined in FAR/JAR Part
25 including: |
|
- |
Seat
cushions* |
|
- |
Back
rest cushions* |
|
- |
Dress
covers* |
|
- |
Carpets |
|
- |
Curtains |
|
- |
Interior
Surfaces (if refurbished) |
|
B. |
Aircraft
Maintenance Status Summaries |
|
B001 |
Certified
current Time in Service (Hours & Cycles) and maintenance status
|
|
B002 |
Certified
status of Airworthiness Directives including method of
compliance |
|
B003 |
Certified
status of Service Bulletin Status |
|
B004 |
Certified
status of SSI (if applicable) |
|
B005 |
Certified
status of CPCP (if applicable) |
|
B006 |
Certified
inventory of Hard Time Components (Fitted listing) |
|
B007 |
Certified
inventory of OC/CM Components (Fitted listing) |
|
B008 |
Certified
status of all non-SB and Major Modifications/STC’s including acceptable
State of Manufacture Certification |
|
B009 |
Certified
status of Check/Inspection History & Current Status of Checks
|
|
B010 |
List of
Deferred Maintenance Items |
|
B011 |
List of
Out of Phase Checks, Special Requirements, Time Limited Repairs (if
any). |
|
B012 |
Aircraft
Accident & Incident Report. |
|
B013 |
Structural
repairs and damage (including Dent & Buckle Chart). |
|
C. |
Aircraft
Maintenance Records |
|
C001 |
Technical
Logs (Minimum of 2 years) |
|
C002 |
A
Checks |
|
Last
complete cycle of A Checks (or equivalent) |
|
C003 |
Intentionally
Deleted |
|
C004 |
All
Major Checks |
|
C005 |
CPCP
Tasks (if applicable) |
|
C006 |
Periodic
Tasks |
|
C007 |
Dirty
Finger Print Certification - AD’s |
|
C008 |
Dirty
Finger Print Certification - SB’s |
|
C009 |
Dirty
Finger Print Certification - All other modification |
|
C010 |
Last
Weight Report including Schedule |
|
C011 |
Compass
Swing Report |
|
C012 |
Last
Test Flight Report |
|
C013 |
Certified
ETOPS compliance report (if applicable) |
|
C014 |
Dirty
Finger Print certification - All Structural repairs/structural
damage |
|
C015 |
Details
of State of Manufacture certification basis - A non-SRM Structural
repairs |
|
C016 |
Aircraft
Log Book(s) if applicable |
|
D. |
Configuration
Status |
|
D001 |
Approved
and certified LOPA |
|
D002 |
Galley
Drawings/Component OHM |
|
D003 |
Emergency
Equipment Drawing/Listing |
|
D004 |
Loose
Equipment Inventory |
|
D005 |
Inventory
Listing of Avionic installed Units. |
|
E. |
Aircraft
Historical Records |
|
E001 |
C of A
(Export) from State of Manufacture |
|
E002 |
Manufacturer’s
AD Report |
|
E003 |
Manufacturer’s
Inspection Report, Initial Equipment list |
|
E004 |
Manufacturer’s
repair/alteration report |
|
E005 |
Manufacturer’s
SB Report |
|
E006 |
Service
Difficulty Reports (if any) |
|
E007 |
Aircraft
Historical Log |
|
E008 |
Last
Flight Data Recorder Read-Out & Corrections |
|
E009 |
Weighing
report |
|
F. |
Engine
Records |
|
F001 |
Certified
Statement of Status of Each Engine |
|
F002 |
AD
Compliance Report and Compliance Documents |
|
F003 |
Manufacturer’s
Modifications & SB Status |
|
F004 |
In-house
Modifications (if applicable) |
|
F005 |
Certified
LLP Listing |
|
F006 |
Certified
listing of installed units |
|
F007 |
Manufacturer
Delivery Document |
|
F008 |
Complete
copies of all historical engine/module Shop Visit Reports |
|
F009 |
State of
Manufacture LLP Traceability |
|
F010 |
Conditioning
Monitoring Report |
|
F011 |
Engine
Log Book/Master Records of Installation/Removals |
|
F012 |
Last
Borescope Report, including video if available |
|
F013 |
Test
Cell Run Report |
|
F014 |
Last
On-Wing Ground Run |
|
F015 |
Certified
Statement that Engines are not involved in an Accident |
|
F016 |
Approved
Release to Service Certification for installed rotables |
|
F017 |
Approved
ETOPS compliance report (if applicable) |
|
G. |
APU |
|
G001 |
Certified
Statement on Status of APU (if applicable) |
|
G002 |
Certified
SB Compliance Report/AD Status Report |
|
G003 |
Approved
Release to Service Certification for installed units |
|
G004 |
APU Log
Book/Master Record of Installation/Removals |
|
G005 |
Complete
copies of all APU Shop Visit Reports & Reason for Removal |
|
G006 |
Statement
of APU Hours to Aircraft Flying Hours |
|
G007 |
LLP
Status and Full Traceability to birth |
|
G008 |
APU
Borescope Report |
|
G009 |
Last
On-Wing/Health Check Data sheets (if applicable) |
|
G010 |
Last
Test Cell Run |
|
G011 |
Approved
ETOPS compliance report |
|
H. |
Component
Records |
|
H001 |
Approved
Release to Service Certification for Hard Time Components |
|
H002 |
Approved
Release to Service Certification for OC/CM Components |
|
I. |
Landing
Gears |
|
I001 |
Approved
Release to Service Certification for major assemblies on each
Gear |
|
I002 |
Approved
LLP Listings for each Gear (with FULL Traceability to Birth) |
|
I003 |
Last
Shop Visit Report (OH) |
|
J. |
Manuals |
|
All
Manufacturer’s Manuals delivered with the Aircraft under the Lease updated
to the latest revision standard (applicable as at the Return Occasion) as may
be reasonably requested by Lessor |
|
J006 |
WDM |
|
J007 |
IPC |
|
J008 |
Maintenance
Manual |
|
J009 |
Schematics |
|
J010 |
Hook Up
Listing |
|
K. |
Miscellaneous |
|
K006 |
Maintenance
Program Specifications (Operator’s) |
|
K007 |
Reference
Material for Interpretation of Status Summaries, or cross-reference for Part
Numbers |
| 1.1 |
Types
of Insurance |
|
(a) |
Hull
All Risks of loss
or damage while flying, taxiing and on the ground with respect to the Aircraft
on an agreed value basis for the Agreed Value and with a deductible not
exceeding the Deductible Amount, or such other amount agreed by Lessor from
time to time; |
|
(b) |
Hull
War and Allied Perils, being
such risks excluded from the Hull All Risks Policy to the fullest extent
available from the leading international insurance markets, including
confiscation and requisition by the State of Registry for the Agreed Value;
|
|
(c) |
All
Risks
(including War and Allied Risk except when on the ground or in transit other
than by air) property insurance on all Engines and Parts when not installed on
the Aircraft on an “agreed value” basis for their full replacement
value and including engine test and running risks; and |
|
(d) |
Comprehensive
Aircraft Third Party, Property Damage, Passenger, Baggage, Cargo and Mail and
Airline General Third Party (including Products) Legal
Liability for a
combined single limit (bodily injury/property damage) of an amount not less
than the Minimum Liability Coverage for the time being for any one occurrence
(but in respect of products and personal injury liability, this limit may be an
aggregate limit for any and all losses occurring during the currency of the
policy). War and Allied Risks are also to be covered under the policy to the
fullest extent available from the leading international insurance markets and
in the scope provided by AVN52E as in effect on the date of this Common Terms
Agreement and shall be for an amount not less than the greater of (i) the
Minimum Liability Coverage and (ii) the amount carried by Lessee in respect of
similar aircraft owned or otherwise operated by Lessee. |
| 1.2 |
Terms
of Hull and Spares Insurance |
|
(a) |
Additional
Insureds: name
Lessor and Owner and their respective successors and assigns (provided that
Lessor shall notify Lessee in writing of the identity of such successors and
assigns if so required by Lessee’s insurers) as additional insureds for
their respective rights and interests; |
|
(b) |
Settlement
of Losses: provide
that any loss will be settled jointly with Lessor and Lessee, and will be
payable in Dollars to Lessor, for the
account of all interests, except where the insurance payment does not exceed
the Damage Notification Threshold, and Lessor has not notified the insurers to
the contrary, in which case the loss will be settled with and paid to Lessee;
|
|
(c) |
50/50
Provision: if
separate Hull “all risks” and “war risks” insurances are
arranged, include a 50/50 provision in accordance with market practice (AVS.
103 is the current London market language); and |
|
(d) |
No
Option to Replace: confirm
that the insurers are not entitled to replace the Aircraft in the event of an
insured Event of Loss. |
| 1.3 |
Terms
of Liability Insurance |
|
(a) |
Additional
Insureds: include
each Indemnitee, as additional insureds for its respective rights and
interests, warranted, each as to itself only, no operational interest;
|
|
(b) |
Severability: include
a severability of interests clause which provides that the insurance, except
for the limit of liability, will operate to give each insured the same
protection as if there was a separate policy issued to each insured; and
|
|
(c) |
Primary
Policy: contain
a provision confirming that the policy is primary without right of contribution
and the liability of the insurers will not be affected by any other insurance
of which Lessor, each Indemnitee or Lessee have the benefit so as to reduce the
amount payable to the additional insureds under such policies.
|
| 1.4 |
Terms
of All Insurances |
|
(a) |
Industry
Practice: be in
accordance with generally accepted industry practice of persons operating
similar aircraft in similar circumstances; |
|
(b) |
Dollars: provide
cover denominated in Dollars and any other currencies which Lessor may
reasonably require in relation to liability insurance; |
|
(c) |
Worldwide: operate
on a worldwide basis subject to such limitations and exclusions as Lessor may
agree; |
|
(d) |
Breach
of Warranty: provide
that, in relation to the interests of each of the additional assureds, the
Insurances will not be invalidated by any act or omission by Lessee, or any
other person other than the respective additional assureds seeking protection
and shall insure the interests of each of the additional assureds regardless of
any breach or violation by Lessee, or any other person other than the
respective additional assured seeking protection of any warranty, declaration
or condition, contained in such Insurances; |
|
(e) |
Subrogation: provide
that the insurers will hold harmless and waive any rights of recourse or
subrogation against the additional insureds; |
|
(f) |
Premiums: provide
that the additional insureds will have no obligation or responsibility for the
payment of any premiums due (but reserve the right to pay the same should any
of them elect so to do) and that the insurers will not exercise any right of
set-off, counter-claim or other deduction, by attachment or otherwise, in
respect of any premium due against the respective interests of the additional
insureds other than outstanding premiums relating to the Aircraft, any Engine
or Part the subject of the relevant claim; |
|
(g) |
Cancellation/Change: provide
that the Insurances will continue unaltered for the benefit of the additional
insureds for at least thirty (30) days after written notice by registered mail
or telex of any cancellation, change, event of non-payment of premium or
installment thereof has been sent by insurer(s) to Lessor, or where an
insurance broker is appointed to the insurance broker who shall promptly send
on such notice to Lessor, except in the case of war risks for which seven (7)
days (or such lesser period as is or may be customarily available in respect of
war risks or allied |
|
(g) |
perils)
will be given, or in the case of war between the five (5) great powers or
nuclear peril for which termination is automatic; |
|
(h) |
Reinsurance: if
reinsurance is a requirement of the Aircraft Lease Agreement such reinsurance
will: |
|
(i) |
be on
the same terms as the original insurances and will include the provisions of
this Schedule; |
|
(ii) |
provide
that notwithstanding any bankruptcy, insolvency, liquidation, dissolution or
similar proceedings of or affecting the reinsured that the reinsurers’
liability will be to make such payments as would have fallen due under the
relevant policy of reinsurance if the reinsured had (immediately before such
bankruptcy, insolvency, liquidation, dissolution or similar proceedings)
discharged its obligations in full under the original insurance policies in
respect of which the then relevant policy of reinsurance has been effected; and
|
|
(iii) |
contain
a “cut-through” clause in the following form (or otherwise
satisfactory to Lessor): |
| 1.5 |
Deductibles |
| 1.6 |
Application
of Insurance Proceeds |
|
(a) |
Event
of Loss: all
insurance payments received as the result of an Event of Loss occurring during
the Term will be paid to Lessor, and Lessor will pay the balance of those
amounts to Lessee after deduction of all amounts which are payable by Lessee to
Lessor under the Lease and the Other Agreements (including under Clause
11.1(b)); |
|
(b) |
Exceeding
Damage Notification Threshold: all
insurance proceeds of any property, damage or loss to the Aircraft, any Engine
or any Part occurring during the Term not constituting an Event of Loss (but
including an Engine Event of Loss) and in excess of |
|
(c) |
Below
Damage Notification Threshold:
insurance proceeds in amounts below the Damage Notification Threshold may be
paid by the insurer directly to Lessee; |
|
(d) |
Liability
Proceeds: all
insurance proceeds in respect of third party liability will, except to the
extent paid by the insurers to the relevant third party, be paid to Lessor or
Owner to be paid directly in satisfaction of the relevant liability or to
Lessee in reimbursement of any payment so made; and |
|
(e) |
Default:
notwithstanding any of the foregoing paragraphs, if at the time of the payment
of any such insurance proceeds a Default has occurred and is continuing, all
such proceeds will be paid to or retained by Lessor or Owner, as the case may
be, or retained to be applied toward payment of any amounts which may be or
become payable by Lessee in such order as Lessor or Owner may elect, provided
that, upon cure of such Default, payment shall thereafter be made to Lessee of
such amounts. |
| (a) |
the
Lease; |
| (b) |
the
Acceptance Certificate; |
| (c) |
the
Deregistration
Power of Attorney;
and |
|
(d) |
Such
other documents, agreements and instruments and such treaties, laws, rules,
regulations, decrees and the like, as I have deemed necessary as a basis for
the opinions hereinafter expressed; and |
|
1. |
Lessee
is a corporation duly incorporated, validly existing and in good standing under
the laws of the Chile. It has the
corporate power and
authority to carry on its business as presently conducted and to perform its
obligations under the Lease, the Acceptance Certificate and the Deregistration
Power of Attorney (collectively, the “Lessee
Documents”). |
|
1. |
No
authorization, approval, consent, license or order of, registration with or
giving of notice to the Air Authority or any other Chilean Government entity is
required for the valid authorization, execution, delivery and performance by
the Lessee of each of the Lessee Documents, except as indicated in paragraph
[6] below. |
|
2. |
Each of
the Lessee Documents has been duly authorized, executed and delivered by
Lessee. Each of the Lessee Documents is a valid, enforceable and binding
obligation of Lessee except as enforceability may be limited by bankruptcy,
insolvency, reorganization or other applicable Laws of general application
affecting the enforcement of creditors’ rights
generally. |
|
3. |
All
necessary corporate and other action have been taken to enable the person
acting on behalf of the Lessee to sign and deliver the Lessee Documents and to
enable the Lessee to perform the obligations undertaken by it thereunder. The
execution and delivery of the Lessee Documents, the consummation by the Lessee
of the transactions contemplated therein and compliance by the Lessee with the
terms and provisions thereof do not and will not (a) contravene any applicable
Law relating to Lessee or (b) result in any breach of or constitute any default
under or result in the creation of any lien, charge or encumbrance upon any
property of Lessee under any indenture, mortgage, chattel mortgage, deed of
trust, conditional sales contract, bank loan or credit agreement, corporate
charter, by-law or other agreement or instrument to which Lessee is a party or
by which Lessee or its properties or assets may be bound or
affected. |
|
[4. |
The
Aircraft is duly registered in the public Aircraft Registry in Chile in the
name of Lessor as lessor and in the name of Lessor as owner and recording the
Lessee as lessee and operator. Such registration of the Aircraft is not
inconsistent with and would not result in the loss of, Lessor’s title to
and ownership of the Aircraft. Except for the foregoing, no other filing or
recording of any instrument or document or any other acts are necessary or
advisable under the laws of Chile to protect Lessor’s title to and
ownership of the Aircraft - NB NOT RELEVANT IF AIRCRAFT IS REGISTERED OUTSIDE
CHILE]. |
|
5. |
Except
for filing of the Lease with the Dirección
General de Aeronáutica Civil, no
filing or recording of any instrument or document (including the filing of any
financial statement) is necessary under the laws of Chile in order for the
Lease to constitute a valid and perfected Lease of record relating to the
Aircraft, it being understood that we express no opinion as to the nature of
the Lessor’s title to the Aircraft on the Delivery Date.
|
|
6. |
Lessee
holds all licenses, certificates and permits from applicable governmental
authorities in Chile necessary for the conduct of its business as a certified
air carrier and performance of its obligations under the Lease, including
importing the Aircraft to Chile for the duration of the Term and to make the
payments provided for by the Lease. |
|
7. |
To the
best of my knowledge, there are no suits or proceedings pending or threatened
against Lessee before any Government Entity against or affecting Lessee which,
if adversely determined, would have a material adverse effect on the financial
condition or business of Lessee or its ability to perform under
the Lease. |
|
8. |
Under
the laws of Chile, Lessee will not be required to make or deduct any
withholding or other Tax from any payment it may make under the
Lease. |
|
9. |
The
obligations of Lessee under
the Lessee
Documents are direct, general and unconditional obligations of LESSEE
and rank at
least pari
passu with all
other present and future unsecured and unsubordinated obligations
(including
contingent obligations) of Lessee, with
the exception of such obligations as are mandatorily preferred by law and not
by reason of any encumbrance. |
|
10. |
Lessee,
under the laws of Chile or of any other jurisdiction affecting Lessee, is
subject to private commercial law and suit in its own name. Neither Lessee nor
its properties or assets have the right of immunity from suit or execution on
the grounds of sovereignty in such jurisdictions and the performance by Lessee
of its obligations under the Lessee Documents constitutes commercial acts done
for commercial purposes. |
|
12. |
On the
termination of the leasing of the Aircraft under the Lease, Lessor would be
entitled to repossess the Aircraft, [to deregister the Aircraft from the
register of the Air Authority] and to export the Aircraft from Chile without
requiring any further consents, approvals or licenses from any governmental or
regulatory authority in Chile. |
|
13. |
There is
no applicable usury or interest limitation law in Chile which may restrict the
recovery of payments in accordance with the Lease; |
|
14. |
The
addressee hereof will not violate any law or regulation in Chile_ nor become
liable to tax in Chile, or be deemed domiciled, a resident or carrying on any
commercial activity or business in Chile by reason of entering into or
performing its obligations under the Lessee Documents and it is not necessary
to establish a place of business in Chile or to be licensed, qualified or
entitled to do business in Chile or to file any notice, report or other
document in order to enforce any provisions of the Lessee
Documents.; |
|
15. |
There
are no stamp duties, transfer taxes or other taxes of any kind payable in Chile
or imposed by any Governmental Entity in Chile in
connection with the signature, performance, filing
or enforcement by legal proceedings of the Lessee Documents, save the duty to
be paid at the time the Lease is registered. |
|
16. |
The choice
of New York
law to
govern the Lessee
Documents will be
upheld in any
action in the courts of Chile.
Any judgment given by court in the State of New York in the United States of
America (the “Foreign Jurisdiction”) would be
recognized and accepted by the courts in
Chile. A final judgment against Lessee for the payment of money obtained
without fraud in any such court pursuant to service of process on an agent of
Lessee in the manner specified in the Lease providing for such service of
process would be recognized, conclusive and enforceable in the courts of Chile
provided that the general requirements for the enforcement in Chile of
judgments of a foreign court have been met, the satisfaction or
non-satisfaction of which would be determined by the Supreme Court of Chile.
The rules governing the enforcement in Chile of judgments passed by foreign
courts are the following: |
|
(i) |
If there
were a treaty in force between Chile and the United States of America with
respect to the enforcement of foreign judgments, the provisions of such treaty,
would be applied. At the date hereof, there is no such treaty in force between
Chile and the United States of America. |
|
(ii) |
If there
were no such treaty, the judgment would be enforced if there were reciprocity
as to the enforcement of judgments (i.e. a court sitting in the Foreign
Jurisdiction would enforce a comparable judgment of a Chilean court in
comparable circumstances). |
|
(iii) |
If it
could be proven that there were no such reciprocity, the judgment could not be
enforced. |
|
(iv) |
If the
previous rules cannot be applied, the judgment would be enforced if it were not
contrary to public policy of Chile and had not been rendered by default within
the meaning of Chilean law. |
|
(a) |
The
court in the Foreign Jurisdiction rendering the judgment had jurisdiction,
under the law of the Foreign Jurisdiction, over Lessee and the subject matter
of the suit; |
|
(b) |
The
judgment is enforceable in the Foreign Jurisdiction; |
|
(c) |
Lessee
(or its process agent designated pursuant to the Lease) received due notice of
the suit (assuming such manner of service to be valid under the law of the
Foreign Jurisdiction) and was afforded an opportunity to defend itself in such
suit; |
|
(d) |
The
document in which the judgment is set forth has been duly legalized by the
Chilean Consul in the Foreign Jurisdiction; and |
|
(e) |
The text
of the judgment has been duly translated into Spanish by a sworn public
translator in Chile. |
|
17. |
No steps
have been, or are being taken to
appoint a receiver or
liquidator or trustee in bankruptcy or
similar officer over, or to wind- up, the
Lessee. |
|
18. |
There are
no laws or other rules in Chile (including, without limitation, emergency
powers laws) pursuant to which Lessee may be deprived of the Aircraft by any
Government Entity in Chile or any other person, other than Lessor or any
assignee of Lessor. |
|
19. |
The
Deregistration Power of Attorney is fully effective to authorize the Attorney
named therein to act in accordance with the terms set out therein, and a duly
appointed appointee of the Attorney named therein may (to the extent permitted
by its appointment) serve as agent for the Attorney and perform any and all
acts authorized therein as if originally authorized therein; the Deregistration
Power of Attorney cannot be revoked by Lessee and would not terminate or lapse
in the event of steps being taken for the cessation of activities, protection
from creditors, winding up or dissolution of Lessee. |
|
(a) |
Non-payment: Lessee
fails to make any payment of Rent or any other amount payable under the Lease
within five Business Days of the due date for payment. Provided that such
failure shall not be an Event of Default if (i) it occurs solely for technical
reasons affecting the transfer of funds, despite timely payment instructions by
Lessee to the bank concerned and (ii) payment is received no later than 5
Business Days after Lessor has informed Lessee of the non receipt of funds
(telephone notice for this purpose suffices) ; or |
|
(b) |
Insurance: Lessee
fails to comply with any provision of Clause 9 or Schedule 7, or any insurance
required to be maintained under the Lease is cancelled or terminated, or a
notice of cancellation is given in respect of any such insurance and such
notice is not rescinded within fifteen days of issuance; provided
that in the case of Insurances with respect to which avoidance or cancellation
will not be effective against Lessor or the other additional assureds for
thirty (30) days, or seven (7) days in the case of war risk, after issue of the
notice to Lessor of such avoidance or cancellation, no such failure to carry
and maintain the Insurances shall constitute an Event of Default if no later
than five (5) Business Days prior to such avoidance or cancellation taking
effect Lessee is able to procure to the satisfaction of Lessor that such
Insurances will not be avoided or cancelled; or |
|
(c) |
Breach: Lessee
fails to comply with any other provision of the Lease not referenced in this
Schedule 9 and, if such failure is in the reasonable opinion of Lessor capable
of remedy, such failure continues for 25 Business Days after notice from Lessor
to Lessee; or |
|
(d) |
Representation: any
representation or warranty made (or deemed to be repeated) by Lessee in or
pursuant to the Lease or in any document or certificate or statement is or
proves to have been incorrect in any material respect when made or deemed to be
repeated, and Lessor is, in its reasonable opinion, materially and adversely
effected thereby; provided, however, that any representation which shall be
deemed repeated which will be untrue due to a change in Law (without giving
effect to any act or omission by Lessee) shall not be an Event of Default, but
rather shall be addressed as provided in Clause 15.1(b) of this CTA; or
|
|
(e) |
*** |
|
(f) |
Approvals: any
consent, authorization, license, certificate or approval of or registration
with or declaration to any Government Entity in connection with the Lease,
including: |
|
(i) |
any
authorization required by Lessee to obtain and transfer freely Dollars (or any
other relevant currency) out of any relevant country (other than as a result of
illegality); |
|
(ii) |
any
authorization required by Lessee to authorize, or in connection with, the
execution, delivery, validity, enforceability or admissibility in evidence of
the Lease or the performance by Lessee of its obligations under the
Lease; |
|
(iii) |
the
registration of the Aircraft or the Aircraft’s certificate of
airworthiness; or |
|
(iv) |
any
airline license or air transport license required by Lessee |
|
(g) |
Insolvency:
Lessee
is or becomes Insolvent or Lessee
becomes unable to pay its debts generally as they fall due or suspends payments
of its debts or threatens in writing to suspend making such payments or
declares a moratorium or seeks a rescheduling (whether of principal or
interest) with respect to all or any class of its debts (other than for the
purposes of a reconstruction, merger or amalgamation neither involving nor
arising out of the insolvency or potential insolvency of Lessee the terms of
which have been previously approved by Lessor, (which approval shall not be
unreasonably withheld or delayed); or |
|
(h) |
Disposal: Lessee
or any Lessee Affiliate disposes, conveys or transfers or threatens to dispose,
convey or transfer of all or a material part of its assets and, in
Lessor’s reasonable opinion, such disposal conveyance or transfer has or
is likely to have a material adverse effect on Lessee’s ability to perform
its obligations under the Lease or Lessee or any Lessee Affiliate, liquidates
or dissolves or consolidates or merges with any other Person (whether by one or
a series of transactions, related or not) and in the case of a Lessee
Affiliate, such liquidation, dissolution, consolidation or merger has or is
likely to have, in Lessor’s reasonable opinion, a material adverse effect
on Lessee’s ability to perform its obligations under the Lease;
or |
|
(i) |
Rights
and Remedies: Lessee
or any other Person claiming by or through Lessee challenges the existence,
validity, enforceability or priority of the Lease or the rights of Lessor as
lessor or of Owner as owner in respect of the Aircraft or Financing
Parties’ Representative as holder of a first priority Security Interest in
the Aircraft and the Lease; or |
|
(j) |
Change
of Control: any
substantial change occurs in the composition of the persons owning or
controlling Lessee and the same will in the reasonable opinion of the Lessor
materially and adversely affect the ability of Lessee to perform all or any of
its obligations under, or to otherwise comply with the material terms of, the
Lease;; or |
|
(k) |
Delivery: Lessee
fails to comply with its obligation to accept Delivery of the Aircraft when
validly tendered pursuant to the Lease; or |
| (l) |
Adverse
Change: any
event or series of events occurs which, in the reasonable opinion of Lessor,
acting in good faith, and whose opinion is supported by an independent firm of
accountants, would reasonably be expected to have a material adverse effect on
the financial condition, operations or prospects of Lessee or Guarantor or on
the ability of Lessee to comply with their obligations under the Lease or on
the ability of Guarantor to comply with its obligations under the Guaranty;
or |
| (m) |
Letter
of Credit: |
|
(i) |
the
issuer of the Letter of Credit (if any) fails to make any payment under that
Letter of Credit when due; or |
|
(ii) |
any such
Letter of Credit is not in full force or, for any reason ceases to constitute
the legal, valid and binding obligation of the issuer; or |
|
(iii) |
any of
the events listed in paragraph (f)(i) above, with respect to the performance by
the issuer of its obligations under any Letter of Credit, or paragraph (g)
above applies to such issuer (references in those sub-paragraphs to Lessee
being deemed to be to the issuer); or |
|
(iv) |
where
applicable, any Letter of Credit is not renewed, extended or reissued within
the time, or replaced when, required by Clause 5.14; |
|
(n) |
[Intentionally
Left Blank];
or |
|
(o) |
[Intentionally
Left Blank]; or
|
| (p) |
Guaranty: |
|
(i) |
any
representation or warranty made by Guarantor is or proves to have been
incorrect in any material respect when made or deemed to be repeated or
Guarantor fails to make any payment or comply with any other obligation under
the Guaranty when due; or |
|
(ii) |
the
Guarantor repudiates, revokes or claims that it has no further obligations
under the Guaranty or the Guaranty ceases to be in full force or, for any
reason, ceases to be the legal, valid and binding obligation of Guarantor;
or |
|
(iii) |
any of
the events listed in paragraph (f)(i) or (g) above occurs in respect of
Guarantor (and for purposes of this paragraph(s), references in those
paragraphs to Lessee shall be deemed to be references to Guarantor);
or |
|
(q) |
[Intentionally
Left Blank];
or |
|
(r) |
Transfer/Lessee
Requirements: Lessee
makes or permits any assignment or transfer of the Lease, or any interest
herein, or of the right to possession of the Aircraft, the Airframe, or any
Engine, or any obligations under the Lease, or Lessee subleases the Aircraft,
in any case except as expressly permitted in the Lease; or Lessee breaches any
provision of Clause 8.7; or |
|
(s) |
Engine
Loss: Lessee
fails to timely comply with its obligations under Clauses 8.11(a) and 8.11
(b) with respect to an Engine Event of Loss; or |
|
(t) |
Navigation
Charges; Airport Charges: Any
authority notifies Lessor or Owner that there are navigation, landing, airport
or similar charges due from Lessee, and such charges remain outstanding for a
period of thirty (30) days from the date of such notice; provided that (i) no
Event of Default shall arise under this paragraph (t) for so long as such
charges are being contested on reasonable grounds and by appropriate
proceedings, an adequate bond has been provided and such proceedings do not
involve any danger of the detention, interference with use or operation or
sale, forfeiture or loss of the Aircraft; and (ii) such thirty (30) day period
shall not apply if there is any risk of detention, interference with use or
operation or sale, forfeiture or
loss of the Aircraft. |
| 1. |
Guaranty. The
Guarantor hereby unconditionally and irrevocably guarantees the full and
punctual performance of all of the Lessee’s obligations under the Lease
Agreement, including without limitation the full and punctual payment of all
amounts payable by the Lessee pursuant to the Lease Agreement, including
payments by way of Rent, indemnity and damages for breach of the provisions of
the Lease Agreement. Upon failure by the Lessee to perform punctually any such
obligations or to pay punctually any such amounts, the Guarantor shall
forthwith on demand perform such obligation or pay such amounts at the place in
the manner specified in the Lease Agreement. Without limiting the generality of
the foregoing, the obligations guaranteed hereby shall include all obligations
to pay amounts and to perform duties as set forth in the Lease Agreement,
notwithstanding the fact that the same do not accrue, are not payable or are
not incurred by Lessee as a result of any insolvency, bankruptcy, liquidation,
reorganization or other similar proceeding affecting the Lessee or its assets,
as fully as if such proceedings had never been commenced. This Guaranty is a
continuing, irrevocable Guaranty, and shall apply to all obligations guaranteed
hereunder whenever arising. |
| 2. |
Guaranty
Unconditional. The
obligations of the Guarantor hereunder shall be unconditional and absolute and,
without limiting the generality of the foregoing, shall not be released,
discharged or otherwise affected by: |
| a) |
any
extension, renewal, settlement, compromise, waiver or release (except to the
extent of any express waiver or release by the Beneficiary) in respect of any
obligation of the Lessee under the Lease Agreement, by operation of law or
otherwise; |
| b) |
any
modification or amendment of or supplement to the Lease
Agreement; |
| c) |
any
Permitted Sub-Lease to a Permitted Sub-Lessee or any other sublease or parting
of possession of the Aircraft, any Engine or part thereof whether or not
permitted by the Lease Agreement; |
| d) |
any
release, non-perfection or invalidity of any direct or indirect security for
any obligation of the Lessee or the Lease Agreement; |
| e) |
any
change in the corporate existence, structure or ownership of the Lessee, or any
insolvency, bankruptcy, liquidation, reorganization or other similar proceeding
affecting the Lessee or its assets or any resulting release or discharged or
any obligation of the Lessee contained in the Lease
Agreement; |
|
f) |
the
existence of any claim, set-off or other rights which the Guarantor may have at
any time against the Lessee, the Beneficiary or any other corporation or
person, whether in connection herewith or any unrelated transactions provided
that nothing herein shall prevent the assertion of any such claim by separate
suit or compulsory counterclaim; |
| g) |
any
invalidity or unenforceability in relation to or against the Lessee for any
reason of the Lease Agreement or any provision of applicable law or regulation
purporting to prohibit the performance by the Lessee of any of its obligations
under the Lease Agreement provided
always that
the Beneficiary shall not be entitled to invoke this Guaranty in respect of any
such invalidity or unenforceability to the extent that such invalidity or
unenforceability is covered by Clause 15.1(b) of the Lease Agreement, unless
and until Lessee is in breach of its obligations under Clause 15.1(b); or
|
| h) |
any
other act or omission to act or delay of any kind by the Lessee, the
Beneficiary or any other corporation or person or any other circumstance
whatsoever (other than payment and performance in full of Lessee’s
obligations under the Lease Agreement) which might, but for the provisions of
this paragraph, constitute a legal or equitable discharge of the
Guarantor’s obligations hereunder. |
| 3. |
Reinstatement
in Certain Circumstances If any
time any payment of any amount payable by the Lessee under the Lease Agreement
is rescinded or must be otherwise restored or returned upon the insolvency,
bankruptcy or reorganization of the Lessee or otherwise, the Guarantor’s
obligations hereunder with respect to such payment shall be reinstated as
thought such payment had been due but not made at such time. |
| 4. |
Waiver
by the Guarantor. The
Guarantor irrevocably waives acceptance hereof, presentment, protest and any
demand or notice not provided for herein, as well as any requirement that at
any time any action be taken by any corporation or person against any Lessee or
any other corporation or person. |
|
5.
|
Subrogation. Until
satisfaction of all the Lessee’s obligations under the Lease by the
Guarantor, the Guarantor irrevocably waives any and all rights to which it may
be entitled, by operation of law or otherwise, upon performing any obligation
or making any payment hereunder to be subrogated to the right of the payee
against the Lessee with respect to such |
|
6.
|
Currency
Indemnity. If the
Beneficiary receives an amount in respect of the Guarantor’s liability
under this Guaranty or if such liability is converted into a claim, proof,
judgment or order in currency other than U.S. Dollars: |
|
(a)
|
if the
amount received by the Beneficiary, when converted into U.S. Dollars, at the
market rate at which the Beneficiary is able on the date of receipt (or on the
next date thereafter on which under normal banking practice the Beneficiary is
able to convert the amount received into U.S. Dollars) to purchase U.S. Dollars
in, at its option, London or New York, is less than the amount owed in US.
Dollars, the Guarantor will, forthwith on demand, pay to the Beneficiary an
amount in US. Dollars equal to the deficit; and |
|
(b)
|
the
Guarantor will pay the Beneficiary on demand any exchange cost and taxes
payable in connection with conversion. |
| 7. |
Notices. All
notices under or in connection with this Guaranty will be given and deemed
effective in accordance with the provisions of Clause 15.7 of the Lease
Agreement. The address, facsimile and telephone numbers of the Beneficiary are
set forth in the Lease Agreement. |
|
|
Address: |
Lan
Airlines S.A.. |
|
|
|
Avenida
Presidente Riesco 5711, 20th Floor |
|
|
|
Santiago,
Chile |
|
|
Attention: |
Leasing
and Insurance Director |
|
|
Facsimile: |
56 2
565-3905 |
|
|
Telephone:
|
56 2
565-3903 |
|
8.
|
Expenses. The
Guarantor shall pay all out-of-pocket expenses incurred by the Beneficiary,
including reasonable fees and disbursements of counsel, in connection with any
failure by the Guarantor to perform any of its obligations hereunder and
collection, bankruptcy, insolvency and other enforcement proceedings resulting
therefrom. |
|
9.
|
Amendments
and Waivers. Any
provisions of this Guaranty may be amended, modified or waived only by an
instrument or instruments in writing signed by the Beneficiary and the
Guarantor. |
| 10. |
Assignment. The
Guarantor may not assign, delegate or otherwise transfer any of its obligations
or rights under this Guaranty. The Beneficiary may not assign or otherwise
transfer any of its rights under this Guaranty. |
|
11.
|
Governing
Law; Jurisdiction.
|
|
(a) |
THIS
GUARANTY SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA APPLICABLE TO
CONTRACTS MADE AND PERFORMED IN SUCH STATE. |
|
(b) |
Guarantor
agrees that any suit, action or proceeding against Guarantor with respect to
this Guaranty or any judgment entered by any court in respect thereof may be
brought in the United States District Court for the Southern District of New
York or in any comparable U.S. Federal or State court within whose jurisdiction
shall be located the chief executive office of Guarantor, or in any New York
sate court sitting in the Borough of Manhattan, and all related appellate
courts, as the Beneficiary in its sole discretion may elect, and Guarantor
hereby submits to the non-exclusive jurisdiction of such courts for the purpose
of any such suit, action or proceeding. Guarantor hereby agrees that service of
all writs, process and summonses in any such suit, action or proceeding brought
in the aforesaid courts may be made upon its process agent in the relevant
jurisdiction, and Guarantor hereby irrevocably appoints Biedermann, Hoenig,
Massamillo & Ruff, Solicitors, 90 Park Avenue, New York, New York, 10017,
U.S.A. (attn: Eugene Massamillo, Esq.) ., as
its true and lawful attorney-in-fact in its name, place and stead to accept
such service of any and all such writs, process and summonses in the State of
New York, and agrees that the failure of its Process Agents to give any notice
of any such service of process to it shall not impair or affect the validity of
such service or of any judgment based thereon. Guarantor hereby irrevocably
further consents to the service of process in any suit, action or proceeding in
any of the aforesaid courts by the mailing thereof by registered or certified
mail, postage prepaid, to the following address: Lan
Airlines S.A., Avenida Presidente Riesco 5711, 20th Floor,
Santiago, Chile. Guarantor hereby irrevocably waives any objection that it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Guaranty brought in any of the aforesaid
courts and hereby further irrevocably waives any claim that any such suit,
action or proceeding has been brought in an inconvenient forum. [Note:
Where Beneficiary is not a New York corporation, add appointment of GECC as
agent for service of process on behalf of Beneficiary.] |
|
(c) |
To the
extent that Guarantor may be or hereafter become entitled, in any jurisdiction
in which judicial proceedings may at any time be commenced with respect to this
Guaranty, to claim for itself or its property, assets or revenues, immunity
(whether by reason of sovereignty or otherwise) from suit, jurisdiction of any
court, attachment prior to judgment, attachment in aid of execution of a
judgment, set-off, execution of judgment or from any other legal process, and
to the extent that in any such jurisdiction there may be attributed any such
immunity (whether or not claimed), Guarantor hereby irrevocably agrees not to
claim and hereby irrevocably waives such immunity. |
|
12. |
WAIVER
OF THE JURY TRIAL.
GUARANTOR AND BENEFICIARY each IRREVOCABLY WAIVE ANY RIGHTS IT MAY HAVE TO A
JURY TRIAL IN THE UNITED STATES OF AMERICA IN RESPECT OF ANY CIVIL ACTION
ARISING UNDER THIS GUARANTY. |
|
13 |
Severability. Any
provision of the Guaranty that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provision hereof in such jurisdiction or affecting the validity or
enforceability of any provision hereof in any other
jurisdiction. |
| 14. |
Integration. This
Guaranty constitutes the entire agreement and understanding among the parties
hereto and supersedes any and all prior agreements and understandings, oral or
written, relating to the subject matter hereof. |
|
LAN
AIRLINES S.A. |
||
| |
|
|
| By: | ||
|
|
||
| Title: | ||
|
|
||
| 1. |
Name
of Applicant ______________________________________________________ |
| Address ______________________________________________________ |
| 2. | Nature Of Business ______________________________________________________ |
|
3. |
I/the
Company supply/supplies no goods or services in the State. (The consigning of
goods direct to Irish customers from outside the State does not constitute
supply within the State). |
| 4. |
I/the
Company am/is not resident or established in the State. |
| 5. |
The
services will be used only in connection with the above-mentioned
business. |
|
6. |
The
regular supplier of services in Ireland is as follows:- |
| 1. |
Name
of Applicant ______________________________________________________ |
| Address ______________________________________________________ |
| 2. | Nature Of Business ______________________________________________________ |
|
7. |
I
enclose a current certificate of status indicating my taxable position for VAT
purposes, issued by the official authority of the State in which I am
registered for VAT (Certificate of Registration will NOT
suffice), |
| WARNING |
Any
person who knowingly makes a false statement for the purpose of obtaining
relief from Value Added Tax is liable to heavy penalties. |
|
· |
obtain
deregistration of the Aircraft from its
register of aircraft maintained by the aviation authority; |
|
· |
if
[Chile] ratifies the Cape Town Convention, register, deregister and consent to
the registration and/or deregistration at the International Registry of any
interests in relation to the Aircraft under the Cape Town
Convention; |
|
· |
complete
any documentation for and take any steps to export the Aircraft;
and |
|
· |
obtain
from any aviation authority and/or any airport and government department,
details of any amounts due from the Company whether related to the Aircraft or
any other aircraft operated by the Company |
|
To: |
[Insert
Name of Registry Authority] |
|
Re: |
Irrevocable
Dc-Registration and Export Request Authorisation |
|
(i) |
recognition
that the authorised party or the person it certifies
as its designee is the sole person entitled to: |
| (a) |
procure
the de-registration of the Aircraft from the [insert name of aircraft register]
maintained by the [insert name of registry authority] for the purposes of
Chapter III of the Convention on International Civil Aviation, signed at
Chicago, on 7 December 1944, and |
| (b) |
procure
the export and physical transfer of the Aircraft from [insert name of country];
and |
|
(ii) |
confirmation
that the authorised party or the person it certifies
as its designee may take the action specified in clause (i) above on written
demand without the consent of the undersigned and that, upon such demand, the
authorities in [insert name of country] shall cooperate with the
authorised party with a view to the speedy completion of such
action. |
|
The
parties listed below as Lessee and Lessor hereby agree that Lessor will lease
the Aircraft to Lessee and Lessee will take delivery of and lease the Aircraft
from Lessor subject to and in accordance with the Lease (including the
provisions of the Common Terms Agreement which are incorporated herein by
reference) and the Lease Supplement (substantially in the form of Schedule D
hereto) for the duration of the Term and further agree in this AIRCRAFT LEASE
AGREEMENT dated as of 30 April 2007 the following: |
||
|
|
||
|
Lessee: |
LAN
Cargo, S.A. whose registered office is at Avenida Presidente Riesco 5711, 20th
Floor, Santiago, Chile |
|
|
|
|
|
|
Lessor: |
WELLS
FARGO BANK NORTHWEST, N.A., as Owner Trustee under a Trust Agreement dated as
of 17th April
2007 |
|
|
|
|
|
|
Owner: |
WELLS
FARGO BANK NORTHWEST, N.A., as Owner Trustee under a Trust Agreement dated as
of 17th April
2007 |
|
|
|
|
|
|
Owner
Participant: |
Celestial
Aviation Trading 39 Limited
or such other person as Lessor may notify to Lessee from time to time in
writing |
|
|
|
|
|
|
Aircraft: |
One
B777-200LRF aircraft bearing manufacturer’s serial number to be advised.
|
|
|
|
|
|
|
Engines: |
Two (2)
GE90-110B1 with 110,100 pounds thrust rating. |
|
|
|
|
|
|
Common
Terms Agreement or CTA: |
The
Common Terms Agreement dated on or about the date hereof entered between GE
Commercial Aviation Services Limited and Lessee. |
|
|
|
|
|
|
State of
Registry: |
Means
the United States of America, except that Lessee may change the State of
Registry to Brazil, Mexico, Chile or back to the United States of America at
Lessee’s option and expense provided that (a) in the case of a change in
the State of Registry elected by Lessee before Delivery, Lessee shall give
Lessor written notice of such change at least 9 months prior to the Scheduled
Delivery Month and provided further, that the Manufacturer can incorporate into
the Aircraft any modification (including records revisions) necessitated by
such change, which incorporation shall be at Lessee’s expense and (b) for
any change in the State of Registry after Delivery, Lessee shall give Lessor at
least 30 days written notice prior to the effectiveness of such
change. |
|
|
|
|
|
|
Duration
of Term: |
*** |
|
|
|
|
|
|
Manufacturer: |
The
Boeing Company |
|
|
|
|
|
|
Lessor
State of Incorporation: |
United
States of America |
|
|
Payments
|
||
|
Rent: |
The Rent
payable in respect of each Rental Period during the Term |
|
| will be the amount set forth in Part 1 of Schedule C. | ||
|
Redelivery
Adjustment Payments Applies: |
Lessee
shall make Redelivery Adjustment payments in accordance with Part 1 of Schedule
C to this Aircraft Lease Agreement. The Redelivery Adjustment Rates set out in
Part 1 of Schedule C to this Aircraft Lease Agreement are expressed in January
2007 Dollars. |
|
|
Deposit: |
Lessee
shall pay Lessor a cash Deposit in accordance with Part 1 of Schedule C to this
Aircraft Lease Agreement. |
|
|
Delivery
|
||
|
Scheduled
Delivery Month: |
*** |
|
|
Final
Delivery Date: |
*** |
|
|
Delivery
Location: |
Seattle,
Washington, United States of America. |
|
|
Delivery
Condition Requirements: |
New,
ex-factory, in accordance with the specification detailed in Schedule A.
|
|
|
Maintenance
Letter of Credit: |
In
addition to the Conditions Precedent set out in Schedule 3 to the Common Terms
Agreement, Lessee shall provide Lessor with the Maintenance Letter of Credit on
or before the Scheduled Delivery Date in accordance with Part 2 of Schedule C
to this Aircraft Lease Agreement. |
|
|
|
|
|
|
Lease
Supplement: |
If the
State of Registry is the United States of America, Lessee and Lessor shall, on
or before Delivery, execute and deliver a Lease Supplement substantially in
form of Schedule D hereto if required in connection with filing and recording
the Lease with the FAA. |
|
|
Technical
|
||
|
AD
Compliance Period: |
As set
forth in Part 1 of Schedule C to this Aircraft Lease
Agreement. |
|
|
AD
Threshold: |
As set
forth in Part 1 of Schedule C to this Aircraft Lease
Agreement. |
|
|
AD
Factor: |
As set
forth in Part 1 of Schedule C to this Aircraft Lease Agreement.
|
|
|
Airframe
Heavy Check: |
As set
forth in Part 1 of Schedule C to this Aircraft Lease Agreement.
|
|
|
Insurance
|
||
|
Agreed
Value: |
As set
forth in Part 1 of Schedule C to this Aircraft Lease
Agreement. |
|
|
Minimum
Liability Coverage: |
As set
forth in Part 1 of Schedule C to this Aircraft Lease
Agreement. |
|
|
Deductible
Amount: |
As set
forth in Part 1 of Schedule C to this Aircraft Lease
Agreement. |
|
|
Damage
Notification Threshold: |
As set
forth in Part 1 of Schedule C to this Aircraft Lease
Agreement. |
|
|
Redelivery
|
||
|
Return
conditions: |
In
addition to the provisions of Schedule 6 to the Common Terms Agreement, the
terms and conditions relating to the return of the Aircraft are set out in Part
1 of Schedule C to this Aircraft Lease Agreement. |
|
|
Tax
|
||
|
Lessor/Owner
Tax Jurisdiction: |
Ireland. |
|
|
Subpart
F Indemnity: |
As set
forth in Schedule B hereto. |
|
|
Other |
||
|
Account
for payments: |
*** |
|
|
***
***
***
US
Correspondent Bank Details: The US
correspondent bank for BNP Paribas, London (if required) is BNP Paribas, New
York
US
Correspondent Bank SWIFT Code: BNPAUS3N
or such
other account as Lessor designates in writing from time to
time. |
||
|
Notices
Details |
Lessor |
Lessee |
|
Wells
Fargo Bank Northwest, N.A.
Corporate
Trust Lease Group
MAC
U1228-120
299
South Main Street, 12th
Floor
Salt
Lake City, UT 84111
Attention:
Corporate Trust Department
Facsimile:
+1 (801) 246 5053
With a
copy to:
GE
Commercial Aviation Services Limited
Aviation
House
Shannon
County
Clare
Ireland
Attention:
Contracts Leader
Fax: +
353 61 706867
E-mail:
asanotices@gecas.com |
LAN
Cargo, S.A.
Avenida
Presidente Riesco 5711, 20th Floor, Santiago, Chile
Attn:
Leasing
and Insurance Director
Facsimile: + 562
565 3905
|
|
| LAN CARGO, S.A. | WELLS FARGO BANK NORTHWEST, N.A., NOT IN ITS INDIVIDUAL CAPACITY, EXCEPT AS EXPRESSLY PROVIDED HEREIN, BUT SOLELY AS OWNER TRUSTEE | |||
| By: | /s/ [illegible] | By: | /s/ [illegible] | |
| Name: |
Carlos
Prado C. |
Name: |
Pablo
Bauer |
|
| Title: |
Senior
Vice President Corporate Investments |
Title: |
Attorney
in fact |
|
Airframe: |
New ex
factory |
|
Airworthiness
Standard: |
FAA |
|
Configuration:
|
Per the
Boeing Detail Specification (summary of which is attached as Exhibit 1, with
specification number to be determined) for GECAS B777-200LRF aircraft with
766,000lbs MTOW. |
|
|
|
|
Engines: |
New, ex
factory |
|
Components: |
New, ex
factory |
|
Landing
Gear: |
New, ex
factory |
|
APU: |
New, ex
factory |
|
Livery: |
Aircraft
will be painted in Lessee’s livery (or in any other livery as may be
notified by Lessee to Lessor in writing at least 9 months prior to the
commencement of the Scheduled Delivery Month) provided that, in any case, if
such livery selected by Lessee gives rise to an incremental cost from the
Manufacturer, then Lessee shall be responsible for such additional cost.
|
|
ATA
DESCRIPTION |
|
|
02
GENERAL REQUIREMENTS |
|
|
Regulatory
Certification |
FAA |
|
Low
Weather Minimums |
Cat
IIIb |
|
ETOPS
Certified |
Yes -
(207 min.) |
|
T/O and
Landing: 15-Knot Tailwind |
Yes |
|
Ten-Minute
Takeoff Thrust Operation |
Yes |
|
High
Altitude Certification |
8,400 ft
|
|
Dispatch
with Gear Down for Revenue Flight |
Yes |
|
Manuals/Instrumentation
Units |
Metric/English |
|
USPHS
|
Yes
|
|
03
GENERAL AIRPLANE CRITERIA |
|
|
Structural
Capabilities |
|
|
Max
Design Taxi Weight |
768,000
lbs |
|
Max
Design Takeoff Weight |
766,000
lbs |
|
Max
Design Landing Weight |
575,000
lbs |
|
Max
Design Zero Fuel Weight |
547,000
lbs |
|
Operational
Capabilities |
|
|
Max Taxi
Weight |
768,000
lbs |
|
Max
Takeoff Weight |
766,000
lbs |
|
Max
Landing Weight |
575,000
lbs |
|
Max Zero
Fuel Weight |
547,000
lbs |
|
Alternate
Forward CG Limits |
No |
|
Customized
Loading Schedule |
No |
|
09
TOWING |
|
|
Aft tow
Fitting |
No |
|
11
PLACARDS and MARKINGS |
|
|
Paint
System |
Akzo
Nobel Eclipse |
|
Registry
markings on Wing |
Left
|
|
30-inch
|
|
|
External
Maintenance Placards & Markings |
English |
|
Ownership
Placards |
Flight
Deck, Engines, |
|
21
AIR CONDITIONING |
|
|
Aft
Cargo Comp. A/C system |
Yes |
|
Cabin
Temp Indicator |
Celsius |
|
Flight
Deck Humidification |
No |
|
22
AUTOMATIC FLIGHT CONTROL |
|
|
Digital
Flight Control System (DFCS) Features: |
|
|
G/S
Capture Before Localizer Capture |
Inhibit |
|
3 Digit
Mach # on Mode Control Panel |
Yes |
|
Bank
Angle Hold at Autopilot Command Engage |
Yes |
|
LNAV
Engagement on TakeOff Go Around |
Yes |
|
23
COMMUNICATIONS |
|
|
Radio
Tuning Panels |
(3)
Gables G7404-124 |
|
HF
System |
|
|
Dual
System |
(2)
Rockwell |
|
Transceivers |
822-0990-004 |
|
HF
Couplers |
822-0987-004 |
|
HF Data
Link |
Provisions
installed |
|
Activation
would be LAN specific |
|
|
VHF
System |
|
|
Triple
System |
(3)
Rockwell |
|
Transceiver |
822-1047-003 |
|
8.33 KHZ
Spacing |
Activated |
|
SATCOM
System |
ARINC
781 AERO H+ |
|
Thales
Topflight |
|
|
SELCAL
Decoder |
(1)
Avtech |
|
NA138-714C |
|
|
ELT
|
Fixed
(Artex - 3 Freq.)Fixed - 3 Freq. |
|
622-5342-101 |
|
|
Cockpit
Voice Recorder |
(1)
Allied Signal |
|
980-6022-001 |
|
|
2 Hr.
recording |
|
|
Manual
On/Off Switch |
Yes |
|
Boom
Mic./Headset |
(4)Telex
Airman 64300-200 |
|
Capt.,
F/O,
1st/Obs,
2nd/Obs |
|
|
Headphone |
No |
|
Hand
Held Mics |
No
2nd/Obs |
|
Audio
Control Panel |
2nd
Obs |
|
Control
Wheel PTT |
Standard
3 position |
|
24
ELECTRICAL POWER |
|
|
DC
Electrical Load Dist. Battery Powered Position Lights |
No |
|
DC
Back-up Power |
|
25
EQUIPMENT/FURNISHINGS |
|
|
Closet/Stowage
Units |
Overhead
Stowage Unit - |
|
Ceiling
Mounted |
|
|
Galleys |
Std
Basic |
|
(16) Std
Containers (Atlas) |
|
|
Ice
drawers below counter |
|
|
(3)
Compartments, (2) |
|
|
Chilled |
|
|
Cargo
Compartment |
|
|
Lower
Lobe - Fwd |
Sloping
Sidewall Fwd Cargo |
|
0.050
-in thick BMS 8-223 |
|
|
Lower
Lobe - Aft |
Sloping
Sidewall Aft Cargo |
|
0.050
-in thick BMS 8-223 |
|
|
Full
Floors |
|
|
Fwd |
No |
|
Aft |
No |
|
LD-4
LD-8 Containers - Fwd |
No |
|
LD-4
LD-8 Containers - Aft |
No |
|
Access
to Main Deck Cargo |
Yes |
|
Centre-line
Loading of 16 and 20 ft ULD’s |
Yes |
|
25
FLIGHT DECK |
|
|
Detachable
Emergency Equip.: |
|
|
Fire
Extinguisher |
(1)Halon-Walter
Kidde |
|
898052 -
SFE |
|
|
Protective
Breathing Equip. (PBE) |
(1) B/E
|
|
Aerospace
-SPE |
|
|
Flashlights
w/shield |
(2) DME
P2-07-0001-214 |
|
Crew
Life Vest
Air
Cruisers (4) |
|
|
Lifeline |
Yes |
|
26
FIRE PROTECTION |
|
|
Engine/APU
Fire Bottle |
Common
Bottle |
|
28
FUEL |
|
|
Fuel
Control Panel -Right Wing |
No |
|
Pressure
Fueling System |
Refueling
Adapters- Right Wing |
|
29
HYDRAULIC POWER |
|
|
Engine
Driven Pump |
PARKER
(ABEX) S271W111 |
|
AC
Electric Pump |
Vickers
(S270T201-7) |
|
31
INDICATING/RECORDING SYSTEMS |
|
|
60- Min.
Countdown timer |
No |
|
Flight
Data Recorder |
(1)
AlliedSignal |
|
980-4700-042 |
|
|
Airplane
Conditioning Monitoring Syst. |
Optical |
|
Disk
Drive |
(1)
Teledyne |
|
AIMS S/W
Installation |
No |
|
|
|
|
Nav.
Performance Scales |
Enabled |
|
Dual
Electronic Checklist Database |
No |
|
Disable
Entry of Gross Weight on PERF INIT Page |
No |
|
ARINC
623 Data-Link Messages - AIMS |
Yes |
|
Firebell
Aural Warning |
1 Sec.
On, 9 Sec. Off |
|
Over-speed
Aural Warning |
Resettable
- Siren |
|
Autopilot
Disconnect Aural Warnings |
Inhibited |
|
Takeoff
Runway Disagree Alert |
No |
|
Door
Synoptic and EICAS Message |
No
|
|
Annunciation
for Loss of Right or Left FMCS |
Yes |
|
Flight
Deck Comm. Funct. Automatic Reset |
Yes |
|
Altitude
Approach Aural Advisory |
Yes |
|
Annunciation
for Satellite Voice Comm. Capability |
Yes |
|
Annunciation
for Data-link Availability |
Yes |
|
VMO/MMO
Over-speed and VFE Over-speed EICAS Status |
No
|
|
Flight
Director Command Display |
Split
Axis |
|
Round
Dial Radio Alt. Display |
Yes |
|
Rising
Runway Display |
Yes- on
ADI |
|
Landing
Alt. Ref |
No
|
|
Radio
Alt. Mins. Reference |
No
|
|
TCAS
Resolution Advisory |
VSI |
|
Vref and
Selected Flap Position |
No
|
|
ILF
Localizer Deviation Scale Expansion |
Autopilot
or Flight Dir. Mode |
|
Map Mode
Orientation |
Track
Up |
|
Grid
Heading |
Nav.
Display |
|
Range
Arcs |
No |
|
TCAS
Range Ring MACH # is not displayed |
No
Ground Speed Display When No Nav. Performance Scales Yes |
|
VNAV
Speed Band |
No |
|
32
LANDING GEAR |
|
|
Main
Gear |
Messier
Bugatti |
|
Wheel |
|
|
Tires |
36 Ply
235 MPH Brakes
Messier Bugatti Carbon High Capacity |
|
Nose
Gear |
Messier
Bugatti |
|
Wheel |
|
|
Tires |
32 Ply
235 MPH |
|
33
LIGHTING |
|
|
NSFSB
Sign Permanent Illumination & |
|
|
No
Smoking Flight Deck Selector switch Removal |
No
|
|
34
NAVIGATION |
|
|
Multi-Mode
Receiver (MMR) |
(2)
Rockwell |
|
|
822-1821-001 |
|
Radio
Altimeter |
(2)
Rockwell |
|
|
822-0334-002 |
|
Weather
Radar |
|
|
Predictive
Wind-shear |
Activated |
|
(1)
Rockwell - Multiscan |
|
|
822-1710-002 |
|
|
TCAS
|
|
|
TCAS
Change 7 |
Yes |
|
Computer |
|
|
|
(12)
Rockwell |
|
822-1293-002 |
|
|
Enhanced
Ground Proximity Warning System |
Yes |
|
Callouts
2500, 1000, 500, 400, 300, 200, 100, 50, 40, 30, 20, 10, APPROACHING
MINIMUMS |
|
|
VHF Nav
(VOR)/Marker Beacon Receiver |
|
|
|
(2)
Rockwell |
|
822-1338-003 |
|
|
ATC
Transponder |
|
|
|
(1)
Rockwell |
|
071-01503-2601822-1338-003 |
|
|
DME |
|
|
Interrogator |
(2)
Rockwell |
|
066-50013-0101822-0329-001 |
|
|
ADF
Receiver |
|
|
|
(2)
Rockwell |
|
822-0299-001 |
|
|
34
FLIGHT MANAGEMENT COMPUTER SYSTEM |
|
|
FMCS
Definition: |
|
|
Runway
Distance and Offset Position |
Metres
|
|
QRH
Takeoff Speeds |
Inhibited
|
|
Navigational
Data Base |
Boeing
supplied |
|
Crew
Alertness Monitoring |
Yes |
|
Non-directional
Radio Beacon (ADF) Approaches |
No |
|
Enhanced
Fix Page Capability |
No |
|
GPS
Approaches w/ Vertical Angles Flight Path Angle |
No
Display of Vertical Bearing, |
|
Flight
Path Angle And Vertical Speed |
No
|
|
35
OXYGEN |
|
|
Crew
Oxygen Cylinder |
|
|
Remote
Fill |
No |
|
Flight
Crew System - Press Breathing |
EROS |
|
(4)
Crew Oxy
Mask-Diluter Demand |
|
|
Type
Regulators with built in Smoke |
|
|
Goggles
|
|
|
46
INFORMATION SYSTEMS |
|
|
Electronic
Flight Bag |
No |
|
EFB -
Activation of ACARS interface |
No |
|
49
APU |
|
|
APU
Exhaust System |
Muffler
in APU |
|
52
DOORS |
|
|
Cargo
Door - Solid Skin |
Yes |
|
Airstairs,
Forward |
No |
|
72
ENGINE |
|
|
Engines
|
GE90-110B1L |
|
78
OIL |
|
|
Oil
|
Mobil
Jet 2 |
| (a) |
Usage
Covenant: To support Lessor’s or other applicable Tax Indemnitee’s
entitlement to the Subpart F Benefits, Lessee agrees that in each calendar year
during the Term: |
|
(i) |
the
Aircraft will be located outside the United States more than 50 per cent of the
time; or |
|
(ii) |
more
than 50 per cent of the miles traversed in the use of the Aircraft will be
traversed outside the United States. |
|
(b) |
(i)
|
Indemnity
for breach of usage covenant: The remedy for the breach of any of the covenants
contained in this clause shall be the right to receive an indemnity payments
specified in this paragraph (b) from Lessee. Any such indemnity payments will
be due within 30 days after Lessee’s receipt of a written request from
Lessor certifying that there has been a loss of Subpart F Benefits describing
in reasonable detail the circumstances of such loss, the amount of such loss
and the breach causing such loss. |
|
(ii) |
Lessee’s
indemnity obligation for Lessor’s or the relevant Tax Indemnitee’s
entitlement to the Subpart F Benefits shall, subject to Clause 5.10 (After Tax
Basis) of the Common Terms Agreement, be the amount of U. S. income tax that
would not have been incurred but for the loss or disallowance of the Subpart F
Benefits that relates to any breach of the covenant set forth in paragraph (a)
plus the amount of any interest, penalties and additions to tax payable by
Lessor or the relevant Tax Indemnitee as a result of the loss or disallowance
of the Subpart F Benefits. |
|
LESSOR, |
LESSEE, |
|
|
[INSERT
LESSOR’S NAME] |
[INSERT
LESSEE’S NAME] |
|
|
By:_______________________________________ |
By:_______________________________________ |
|
|
Name:
____________________________________ |
Name:
____________________________________ |
|
|
Title:
_____________________________________ |
Title:
_____________________________________ |
|
The
parties listed below as Lessee and Lessor hereby agree that Lessor will lease
the Aircraft to Lessee and Lessee will take delivery of and lease the Aircraft
from Lessor subject to and in accordance with the Lease (including the
provisions of the Common Terms Agreement which are incorporated herein by
reference) and the Lease Supplement (substantially in the form of Schedule D
hereto) for the duration of the Term and further agree in this AIRCRAFT LEASE
AGREEMENT dated as of 30 April 2007 the following: |
||
|
|
||
|
Lessee: |
LAN
Cargo, S.A. whose registered office is at Avenida Presidente Riesco 5711, 20th
Floor, Santiago, Chile |
|
|
|
|
|
|
Lessor: |
WELLS
FARGO BANK NORTHWEST, N.A., as Owner Trustee under a Trust Agreement dated as
of 18th April
2007 |
|
|
|
|
|
|
Owner: |
WELLS
FARGO BANK NORTHWEST, N.A., as Owner Trustee under a Trust Agreement dated as
of 18th April
2007 |
|
|
|
|
|
|
Owner
Participant: |
Celestial
Aviation Trading 23 Limited
or such other person as Lessor may notify to Lessee from time to time in
writing |
|
|
|
|
|
|
Aircraft: |
One
B777-200LRF aircraft bearing manufacturer’s serial number to be advised.
|
|
|
|
|
|
|
Engines: |
Two (2)
GE90-110B1 with 110,100 pounds thrust rating. |
|
|
|
|
|
|
Common
Terms Agreement or CTA: |
The
Common Terms Agreement dated on or about the date hereof entered between GE
Commercial Aviation Services Limited and Lessee. |
|
|
|
|
|
|
State of
Registry: |
Means
the United States of America, except that Lessee may change the State of
Registry to Brazil, Mexico, Chile or back to the United States of America at
Lessee’s option and expense provided that (a) in the case of a change in
the State of Registry elected by Lessee before Delivery, Lessee shall give
Lessor written notice of such change at least 9 months prior to the Scheduled
Delivery Month and provided further, that the Manufacturer can incorporate into
the Aircraft any modification (including records revisions) necessitated by
such change, which incorporation shall be at Lessee’s expense and (b) for
any change in the State of Registry after Delivery, Lessee shall give Lessor at
least 30 days written notice prior to the effectiveness of such
change. |
|
|
|
|
|
|
Duration
of Term: |
*** |
|
|
|
|
|
|
Manufacturer: |
The
Boeing Company |
|
|
|
|
|
|
Lessor
State of Incorporation: |
United
States of America |
|
|
Payments
|
||
|
Rent: |
The Rent
payable in respect of each Rental Period during the Term will be the amount set
forth in Part 1 of Schedule C. |
|
|
Redelivery
Adjustment Payments Applies: |
Lessee
shall make Redelivery Adjustment payments in accordance with Part 1 of Schedule
C to this Aircraft Lease Agreement. The Redelivery Adjustment Rates set out in
Part 1 of Schedule C to this Aircraft Lease Agreement are expressed in January
2007 Dollars. |
|
|
Deposit: |
Lessee
shall pay Lessor a cash Deposit in accordance with Part 1 of Schedule C to this
Aircraft Lease Agreement. |
|
|
Delivery
|
||
|
Scheduled
Delivery Month: |
*** |
|
|
Final
Delivery Date: |
*** |
|
|
Delivery
Location: |
Seattle,
Washington, United States of America. |
|
|
Delivery
Condition Requirements: |
New,
ex-factory, in accordance with the specification detailed in Schedule A.
|
|
|
Maintenance
Letter of Credit: |
In
addition to the Conditions Precedent set out in Schedule 3 to the Common Terms
Agreement, Lessee shall provide Lessor with the Maintenance Letter of Credit on
or before the Scheduled Delivery Date in accordance with Part 2 of Schedule C
to this Aircraft Lease Agreement. |
|
|
|
|
|
|
Lease
Supplement: |
If the
State of Registry is the United States of America, Lessee and Lessor shall, on
or before Delivery, execute and deliver a Lease Supplement substantially in
form of Schedule D hereto if required in connection with filing and recording
the Lease with the FAA. |
|
|
Technical
|
||
|
AD
Compliance Period: |
As set
forth in Part 1 of Schedule C to this Aircraft Lease
Agreement. |
|
|
AD
Threshold: |
As set
forth in Part 1 of Schedule C to this Aircraft Lease
Agreement. |
|
|
AD
Factor: |
As set
forth in Part 1 of Schedule C to this Aircraft Lease Agreement.
|
|
|
Airframe
Heavy Check: |
As set
forth in Part 1 of Schedule C to this Aircraft Lease Agreement.
|
|
|
Insurance
|
||
|
Agreed
Value: |
As set
forth in Part 1 of Schedule C to this Aircraft Lease
Agreement. |
|
|
Minimum
Liability Coverage: |
As set
forth in Part 1 of Schedule C to this Aircraft Lease
Agreement. |
|
|
Deductible
Amount: |
As set
forth in Part 1 of Schedule C to this Aircraft Lease
Agreement. |
|
|
Damage
Notification Threshold: |
As set
forth in Part 1 of Schedule C to this Aircraft Lease
Agreement. |
|
|
Redelivery
|
||
|
Return
conditions: |
In
addition to the provisions of Schedule 6 to the Common Terms Agreement, the
terms and conditions relating to the return of the Aircraft are set out in Part
1 of Schedule C to this Aircraft Lease Agreement. |
|
|
Tax
|
||
|
Lessor/Owner
Tax Jurisdiction: |
Ireland. |
|
|
Subpart
F Indemnity: |
As set
forth in Schedule B hereto. |
|
|
Other |
||
|
Account
for payments: |
*** |
|
| *** | ||
| *** | ||
|
***
***
***
US
Correspondent Bank Details: The US
correspondent bank for BNP Paribas, London (if required) is BNP Paribas, New
York
US
Correspondent Bank SWIFT Code: BNPAUS3N
or such
other account as Lessor designates in writing from time to
time. |
||
|
Notices
Details |
Lessor |
Lessee |
|
Wells
Fargo Bank Northwest, N.A.
Corporate
Trust Lease Group
MAC
U1228-120
299
South Main Street, 12th
Floor
Salt
Lake City, UT 84111
Attention:
Corporate Trust Department
Facsimile:
+1 (801) 246 5053
With a
copy to:
GE
Commercial Aviation Services Limited
Aviation
House
Shannon
County
Clare
Ireland
Attention:
Contracts Leader
Fax: +
353 61 706867
E-mail:
asanotices@gecas.com |
LAN
Cargo, S.A.
Avenida
Presidente Riesco 5711, 20th Floor, Santiago, Chile
Attn:
Leasing
and Insurance Director
Facsimile: + 562
565 3905
|
|
| LAN CARGO, S.A. | WELLS FARGO BANK NORTHWEST, N.A., NOT IN ITS INDIVIDUAL CAPACITY, EXCEPT AS EXPRESSLY PROVIDED HEREIN, BUT SOLELY AS OWNER TRUSTEE | |||
| By: | /s/ [illegible] | By: | /s/ [illegible] | |
|
Name:
Carlos
Prado C. |
Name: Pablo
Bauer |
|||
|
Title: Senior
Vice President Corporate Investments |
Title: Attorney
in fact |
|
Airframe: |
New ex
factory |
|
Airworthiness
Standard: |
FAA |
|
Configuration:
|
Per the
Boeing Detail Specification (summary of which is attached as Exhibit 1, with
specification number to be determined) for GECAS B777-200LRF aircraft with
766,000lbs MTOW. |
|
|
|
|
Engines: |
New, ex
factory |
|
Components: |
New, ex
factory |
|
Landing
Gear: |
New, ex
factory |
|
APU: |
New, ex
factory |
|
Livery: |
Aircraft
will be painted in Lessee’s livery (or in any other livery as may be
notified by Lessee to Lessor in writing at least 9 months prior to the
commencement of the Scheduled Delivery Month) provided that, in any case, if
such livery selected by Lessee gives rise to an incremental cost from the
Manufacturer, then Lessee shall be responsible for such additional cost.
|
|
ATA
DESCRIPTION |
|
|
02
GENERAL REQUIREMENTS |
|
|
Regulatory
Certification |
FAA |
|
Low
Weather Minimums |
Cat
IIIb |
|
ETOPS
Certified |
Yes -
(207 min.) |
|
T/O and
Landing: 15-Knot Tailwind |
Yes |
|
Ten-Minute
Takeoff Thrust Operation |
Yes |
|
High
Altitude Certification |
8,400 ft
|
|
Dispatch
with Gear Down for Revenue Flight |
Yes |
|
Manuals/Instrumentation
Units |
Metric/English |
|
USPHS
|
Yes
|
|
03
GENERAL AIRPLANE CRITERIA |
|
|
Structural
Capabilities |
|
|
Max
Design Taxi Weight |
768,000
lbs |
|
Max
Design Takeoff Weight |
766,000
lbs |
|
Max
Design Landing Weight |
575,000
lbs |
|
Max
Design Zero Fuel Weight |
547,000
lbs |
|
Operational
Capabilities |
|
|
Max Taxi
Weight |
768,000
lbs |
|
Max
Takeoff Weight |
766,000
lbs |
|
Max
Landing Weight |
575,000
lbs |
|
Max Zero
Fuel Weight |
547,000
lbs |
|
Alternate
Forward CG Limits |
No |
|
Customized
Loading Schedule |
No |
|
09
TOWING |
|
|
Aft tow
Fitting |
No |
|
11
PLACARDS and MARKINGS |
|
|
Paint
System |
Akzo
Nobel Eclipse |
|
Registry
markings on Wing |
Left
|
|
30-inch
|
|
|
External
Maintenance Placards & Markings |
English |
|
Ownership
Placards |
Flight
Deck, Engines, |
|
21
AIR CONDITIONING |
|
|
Aft
Cargo Comp. A/C system |
Yes |
|
Cabin
Temp Indicator |
Celsius |
|
Flight
Deck Humidification |
No |
|
22
AUTOMATIC FLIGHT CONTROL |
|
|
Digital
Flight Control System (DFCS) Features: |
|
|
G/S
Capture Before Localizer Capture |
Inhibit |
|
3 Digit
Mach # on Mode Control Panel |
Yes |
|
Bank
Angle Hold at Autopilot Command Engage |
Yes |
|
LNAV
Engagement on TakeOff Go Around |
Yes |
|
23
COMMUNICATIONS |
|
|
Radio
Tuning Panels |
(3)
Gables G7404-124 |
|
HF
System |
|
|
Dual
System |
(2)
Rockwell |
|
Transceivers |
822-0990-004 |
|
HF
Couplers |
822-0987-004 |
|
HF Data
Link |
Provisions
installed |
|
Activation
would be LAN specific |
|
|
VHF
System |
|
|
Triple
System |
(3)
Rockwell |
|
Transceiver |
822-1047-003 |
|
8.33 KHZ
Spacing |
Activated |
|
SATCOM
System |
ARINC
781 AERO H+ |
|
Thales
Topflight |
|
|
SELCAL
Decoder |
(1)
Avtech |
|
NA138-714C |
|
|
ELT
|
Fixed
(Artex - 3 Freq.)Fixed - 3 Freq. |
|
622-5342-101 |
|
|
Cockpit
Voice Recorder |
(1)
Allied Signal |
|
980-6022-001 |
|
|
2 Hr.
recording |
|
|
Manual
On/Off Switch |
Yes |
|
Boom
Mic./Headset |
(4)Telex
Airman 64300-200 |
|
Capt.,
F/O,
1st/Obs,
2nd/Obs |
|
|
Headphone |
No |
|
Hand
Held Mics |
No
2nd/Obs |
|
Audio
Control Panel |
2nd
Obs |
|
Control
Wheel PTT |
Standard
3 position |
|
24
ELECTRICAL POWER |
|
|
DC
Electrical Load Dist. Battery Powered Position Lights |
No |
|
DC
Back-up Power |
|
25
EQUIPMENT/FURNISHINGS |
|
|
Closet/Stowage
Units |
Overhead
Stowage Unit - |
|
Ceiling
Mounted |
|
|
Galleys |
Std
Basic |
|
(16) Std
Containers (Atlas) |
|
|
Ice
drawers below counter |
|
| (3) Compartments, (2) | |
|
Chilled |
|
|
Cargo
Compartment |
|
|
Lower
Lobe - Fwd |
Sloping
Sidewall Fwd Cargo |
|
0.050
-in thick BMS 8-223 |
|
|
Lower
Lobe - Aft |
Sloping
Sidewall Aft Cargo |
|
0.050
-in thick BMS 8-223 |
|
|
Full
Floors |
|
|
Fwd |
No |
|
Aft |
No |
|
LD-4
LD-8 Containers - Fwd |
No |
|
LD-4
LD-8 Containers - Aft |
No |
|
Access
to Main Deck Cargo |
Yes |
|
Centre-line
Loading of 16 and 20 ft ULD’s |
Yes |
|
25
FLIGHT DECK |
|
|
Detachable
Emergency Equip.: |
|
|
Fire
Extinguisher |
(1)Halon-Walter
Kidde |
|
898052 -
SFE |
|
|
Protective
Breathing Equip. (PBE) |
(1) B/E
|
|
Aerospace
-SPE |
|
|
Flashlights
w/shield |
(2) DME
P2-07-0001-214 |
|
Crew
Life Vest |
Air
Cruisers (4) |
|
Lifeline |
Yes |
|
26
FIRE PROTECTION |
|
|
Engine/APU
Fire Bottle |
Common
Bottle |
|
28
FUEL |
|
|
Fuel
Control Panel -Right Wing |
No |
|
Pressure
Fueling System |
Refueling
Adapters- Right Wing |
|
29
HYDRAULIC POWER |
|
|
Engine
Driven Pump |
PARKER
(ABEX) S271W111 |
|
AC
Electric Pump |
Vickers
(S270T201-7) |
|
31
INDICATING/RECORDING SYSTEMS |
|
|
60- Min.
Countdown timer |
No |
|
Flight
Data Recorder |
(1)
AlliedSignal |
|
980-4700-042 |
|
|
Airplane
Conditioning Monitoring Syst. |
Optical |
|
Disk
Drive |
(1)
Teledyne |
|
AIMS S/W
Installation |
No |
|
|
|
|
Nav.
Performance Scales |
Enabled |
|
Dual
Electronic Checklist Database |
No |
|
Disable
Entry of Gross Weight on PERF INIT Page |
No |
|
ARINC
623 Data-Link Messages - AIMS |
Yes |
|
Firebell
Aural Warning |
1 Sec.
On, 9 Sec. Off |
|
Over-speed
Aural Warning |
Resettable
- Siren |
|
Autopilot
Disconnect Aural Warnings |
Inhibited |
|
Takeoff
Runway Disagree Alert |
No |
|
Door
Synoptic and EICAS Message |
No
|
|
Annunciation
for Loss of Right or Left FMCS |
Yes |
|
Flight
Deck Comm. Funct. Automatic Reset |
Yes |
|
Altitude
Approach Aural Advisory |
Yes |
|
Annunciation
for Satellite Voice Comm. Capability |
Yes |
|
Annunciation
for Data-link Availability |
Yes |
|
VMO/MMO
Over-speed and VFE Over-speed EICAS Status |
No
|
|
Flight
Director Command Display |
Split
Axis |
|
Round
Dial Radio Alt. Display |
Yes |
|
Rising
Runway Display |
Yes- on
ADI |
|
Landing
Alt. Ref |
No
|
|
Radio
Alt. Mins. Reference |
No
|
|
TCAS
Resolution Advisory |
VSI |
|
Vref and
Selected Flap Position |
No
|
|
ILF
Localizer Deviation Scale Expansion |
Autopilot
or Flight Dir. Mode |
|
Map Mode
Orientation |
Track
Up |
|
Grid
Heading |
Nav.
Display |
|
Range
Arcs |
No |
|
TCAS
Range Ring MACH # is not displayed |
No
Ground Speed Display When No Nav. Performance Scales Yes |
|
VNAV
Speed Band |
No |
|
32
LANDING GEAR |
|
|
Main
Gear |
Messier
Bugatti |
|
Wheel |
|
|
Tires |
36 Ply
235 MPH Brakes
Messier Bugatti Carbon High Capacity |
|
Nose
Gear |
Messier
Bugatti |
|
Wheel |
|
|
Tires |
32 Ply
235 MPH |
|
33
LIGHTING |
|
|
NSFSB
Sign Permanent Illumination & |
|
|
No
Smoking Flight Deck Selector switch Removal |
No
|
|
34
NAVIGATION |
|
|
Multi-Mode
Receiver (MMR) |
(2)
Rockwell |
|
|
822-1821-001 |
|
Radio
Altimeter |
(2)
Rockwell |
|
|
822-0334-002 |
|
Weather
Radar |
|
|
Predictive
Wind-shear |
Activated |
|
(1)
Rockwell - Multiscan |
|
|
822-1710-002 |
|
|
TCAS
|
|
|
TCAS
Change 7 |
Yes |
|
Computer |
|
|
|
(12)
Rockwell |
|
822-1293-002 |
|
|
Enhanced
Ground Proximity Warning System |
Yes |
|
Callouts
2500, 1000, 500, 400, 300, 200, 100, 50, 40, 30, 20, 10, APPROACHING MINIMUMS
|
|
|
VHF Nav
(VOR)/Marker Beacon Receiver |
|
|
|
(2)
Rockwell |
|
822-1338-003 |
|
|
ATC
Transponder |
|
|
|
(2)
Rockwell |
|
071-01503-2601822-1338-003 |
|
|
DME |
|
|
Interrogator |
(2)
Rockwell |
|
066-50013-0101822-0329-001 |
|
|
ADF
Receiver |
|
|
|
(2)
Rockwell |
|
822-0299-001 |
|
|
34
FLIGHT MANAGEMENT COMPUTER SYSTEM |
|
|
FMCS
Definition: |
|
|
Runway
Distance and Offset Position |
Metres
|
|
QRH
Takeoff Speeds |
Inhibited
|
|
Navigational
Data Base |
Boeing
supplied |
|
Crew
Alertness Monitoring |
Yes |
|
Non-directional
Radio Beacon (ADF) Approaches |
No |
|
Enhanced
Fix Page Capability |
No |
|
GPS
Approaches w/ Vertical Angles |
No
Display of Vertical Bearing, Flight Path Angle |
|
And
Vertical Speed |
No
|
|
35
OXYGEN |
|
|
Crew
Oxygen Cylinder |
|
|
Remote
Fill |
No |
|
Flight
Crew System - Press Breathing |
EROS |
|
(5)
Crew Oxy Mask-Diluter Demand |
|
|
Type
Regulators with built in Smoke |
|
|
Goggles
|
|
|
46
INFORMATION SYSTEMS |
|
|
Electronic
Flight Bag |
No |
|
EFB -
Activation of ACARS interface |
No |
|
49
APU |
|
|
APU
Exhaust System |
Muffler
in APU |
|
52
DOORS |
|
|
Cargo
Door - Solid Skin |
Yes |
|
Airstairs,
Forward |
No |
|
72
ENGINE |
|
|
Engines
|
GE90-110B1L |
|
78
OIL |
|
|
Oil
|
Mobil
Jet 2 |
| (a) |
Usage
Covenant: To support Lessor’s or other applicable Tax Indemnitee’s
entitlement to the Subpart F Benefits, Lessee agrees that in each calendar year
during the Term: |
|
(i) |
the
Aircraft will be located outside the United States more than 50 per cent of the
time; or |
|
(ii) |
more
than 50 per cent of the miles traversed in the use of the Aircraft will be
traversed outside the United States. |
|
(b) |
(i)
|
Indemnity
for breach of usage covenant: The remedy for the breach of any of the covenants
contained in this clause shall be the right to receive an indemnity payments
specified in this paragraph (b) from Lessee. Any such indemnity payments will
be due within 30 days after Lessee’s receipt of a written request from
Lessor certifying that there has been a loss of Subpart F Benefits describing
in reasonable detail the circumstances of such loss, the amount of such loss
and the breach causing such loss. |
|
(ii) |
Lessee’s
indemnity obligation for Lessor’s or the relevant Tax Indemnitee’s
entitlement to the Subpart F Benefits shall, subject to Clause 5.10 (After Tax
Basis) of the Common Terms Agreement, be the amount of U. S. income tax that
would not have been incurred but for the loss or disallowance of the Subpart F
Benefits that relates to any breach of the covenant set forth in paragraph (a)
plus the amount of any interest, penalties and additions to tax payable by
Lessor or the relevant Tax Indemnitee as a result of the loss or disallowance
of the Subpart F Benefits. |
|
LESSOR, |
LESSEE, |
|
|
[INSERT
LESSOR’S NAME] |
[INSERT
LESSEE’S NAME] |
|
|
By:_______________________________________ |
By:_______________________________________ |
|
|
Name:
____________________________________ |
Name:
____________________________________ |
|
|
Title:
_____________________________________ |
Title:
_____________________________________ |
Exhibit 12.1
Certification of Chief Executive Officer
I, Enrique Cueto Plaza, certify that:
|
|
| 1. | I have reviewed this amendment to the annual report on Form 20-F of Lan Airlines S.A.; |
|
|
| 2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report. |
Date: May 7, 2007
|
By: /s/ Enrique Cueto Plaza
Name: Enrique Cueto Plaza Title: Chief Executive Officer |
Exhibit 12.2
Certification of Chief Financial Officer
I, Alejandro de la Fuente, certify that:
|
|
| 1. | I have reviewed this amendment to the annual report on Form 20-F of Lan Airlines S.A.; |
|
|
| 2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report. |
Date: May 7, 2007
|
By: /s/ Alejandro de la Fuente Goic
Name: Alejandro de la Fuente Goic Title: Chief Financial Officer |