EXHIBIT 10.43
EXECUTION COPY
Confidential Treatment Requested
Pursuant to Rule 406
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SECURITIES ACCOUNT CONTROL AGREEMENT
(CH-285SK)
Dated as of December 27, 2001
among
CHAUTAUQUA AIRLINES, INC.,
as Debtor,
AGENCIA ESPECIAL DE FINANCIAMENTO INDUSTRIAL - FINAME,
as Lender
and
JPMORGAN CHASE BANK
as Securities Intermediary and as Security Deposit Trustee
* * * * * * * *
One Embraer EMB-145 LR
United States Registration Number N285SK
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CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES ACT OF 1933. THE OMITTED
MATERIALS HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
SECURITIES ACCOUNT CONTROL AGREEMENT
(CH-285SK)
This Securities Account Control Agreement (CH-285SK) (this
"AGREEMENT"), is dated as of December 27, 2001, among Chautauqua Airlines, Inc.,
a New York corporation ("DEBTOR"), Agencia Especial de Financiamento Industrial
- FINAME, a Brazilian federal public company registered in the General Register
of Taxpayers under the number 33.660.564/0001.00 ("LENDER"), and JPMorgan Chase
Bank, in its capacity as securities intermediary hereunder (in such capacity,
the "SECURITIES INTERMEDIARY") and in its capacity as Security Deposit Trustee
under the Security Deposit Agreement referred to herein (in such capacity the
"SECURED PARTY"). Capitalized terms used but not defined herein shall have the
meaning assigned in the Security Deposit Agreement (CH-285SK) of even date
herewith among Debtor, Lender and the Secured Party (the "SECURITY DEPOSIT
AGREEMENT"). All references herein to the "UCC" shall mean the Uniform
Commercial Code as in effect in the State of New York.
1. ESTABLISHMENT OF SECURITIES ACCOUNT. The Securities Intermediary
hereby confirms that (i) the Securities Intermediary has established account
number [*] in the name FINAME/CH PLEDGE ACCOUNT, F/A/O JPMorgan Chase Bank, as
Security Deposit Trustee, Ref: Security Deposit Agreement (CH-285SK) dated as of
December 27, 2001, Attn: Management (such account and any successor account
being referred to as the "SECURITIES ACCOUNT), (ii) the Securities Account is a
"securities account" as such term is defined in Section 8-501(a) of the UCC,
(iii) the Securities Intermediary shall, subject to the terms of this Agreement,
treat the Secured Party as entitled to exercise the rights that comprise any
financial asset credited to the account, (iv) all property delivered to the
Securities Intermediary pursuant to the Security Deposit Agreement will be
promptly credited to the Securities Account, and (v) all securities or other
property underlying any financial assets credited to the Securities Account
shall be registered in the name of the Securities Intermediary, indorsed to the
Securities Intermediary or in blank or credited to another securities account
maintained in the name of the Securities Intermediary and in no case will any
financial asset credited to the Securities Account be registered in the name of
Debtor, payable to the order of Debtor or specially indorsed to Debtor except to
the extent the foregoing have been specially indorsed to the Securities
Intermediary or in blank.
2. "FINANCIAL ASSETS" ELECTION. The Securities Intermediary hereby
agrees that each item of property (whether investment property, financial asset,
security, instrument or cash) credited to the Securities Account shall be
treated as a "financial asset" within the meaning of Section 8-102(a)(9) of the
UCC.
3. ENTITLEMENT ORDERS. If at any time the Securities Intermediary
shall receive an "entitlement order" (within the meaning of Section 8-102(a) (8)
of the UCC) issued by the Secured Party and relating to the Securities Account,
the Securities Intermediary shall comply with such entitlement order without
further consent by Debtor or any other Person.
4. SUBORDINATION OF LIEN; WAIVER OF SET-OFF. In the event that the
Securities Intermediary has or subsequently obtains by agreement, operation of
law or otherwise a security interest in the Securities Account or any security
entitlement credited thereto, the Securities Intermediary hereby agrees that
such security interest shall be subordinate to the security interest
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* Confidential
of the Secured Party. The financial assets and other items deposited to the
Securities Account will not be subject to deduction, set-off, banker's lien, or
any other right in favor of any Person other than the Secured Party (except that
the Securities Intermediary may set off (i) all amounts due to it in respect of
its customary fees and expenses for the routine maintenance and operation of the
Securities Account, and (ii) the face amount of any checks which have been
credited to the Securities Account but are subsequently returned unpaid because
of uncollected or insufficient funds).
5. CHOICE OF LAW. Both this Agreement and the Securities Account
shall be governed by the laws of the State of New York. Regardless of any
provision in any other agreement, for purposes of the UCC, New York shall be
deemed to be the Securities Intermediary's jurisdiction and the Securities
Account (as well as the securities entitlements related thereto) shall be
governed by the laws of the State of New York.
6. CONFLICT WITH OTHER AGREEMENTS. There are no other agreements
entered into between the Securities Intermediary and Debtor with respect to the
Securities Account except for the Security Deposit Agreement and the other
Operative Agreements. In the event of any conflict between this Agreement (or
any portion thereof) and any other agreement now existing (including the
Operative Agreements) or hereafter entered into, the terms of this Agreement
shall prevail.
7. AMENDMENTS. No amendment or modification of this agreement or
waiver of any right hereunder shall be binding on any party hereto unless it is
in writing and is signed by all of the parties hereto.
8. NOTICE OF ADVERSE CLAIMS. Except for the claims and interest of
the Secured Party and of Debtor in the Securities Account, the Securities
Intermediary does not know of any claim to, or interest in, the Securities
Account or in any "financial asset" (as defined in Section 8-102(a) of the UCC)
credited thereto. If any Person asserts any lien, encumbrance or adverse claim
(including any writ, garnishment, judgment, warrant of attachment, execution or
similar process) against the Securities Account or in any financial asset
carried therein, the Securities Intermediary will promptly notify the Secured
Party and Debtor thereof.
9. SUCCESSORS. The terms of this Agreement shall be binding upon,
and shall inure to the benefit of, the parties hereto and their respective
corporate successors or heirs and personal representatives.
10. NOTICES. Any notice, request or other communication required or
permitted to be given under this Agreement shall be in writing and deemed to
have been properly given when delivered in person, or when sent by telecopy or
other electronic means and (in the case of electronic means) electronic
confirmation of error free receipt is received or upon receipt if sent by
certified or registered United States mail, return receipt requested, postage
prepaid, addressed to the party at the address set forth in the Security Deposit
Agreement. Any party may change his address for notices in the manner set forth
above.
11. TERMINATION. The rights and powers granted herein to the Secured
Party have been granted in order to perfect its security interests in the
Securities Account, are powers
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coupled with an interest and will neither be affected by the bankruptcy of
Debtor nor by the lapse of time. The obligations of the Securities Intermediary
hereunder shall continue in effect until the final distribution of funds
pursuant to Section 4 of the Security Deposit Agreement and the Secured Party
has notified the Securities Intermediary of such final distribution in writing.
12. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which shall constitute one and the same instrument, and any
party hereto may execute this Agreement by signing and delivering one or more
counterparts; provided that, without limiting the effectiveness of any
counterpart provided for above, the parties agree that one non-counterpart
original shall be fully executed and delivered to the Secured Party.
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IN WITNESS WHEREOF, the parties hereto have each caused this
Securities Account Control Agreement to be duly executed by their duly
authorized officers, all as of the day and year first above written.
CHAUTAUQUA AIRLINES, INC., as Debtor AGENCIA ESPECIAL DE
FINANCIAMENTO INDUSTRIAL -
FINAME, as Secured Party
By: By:
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Name: Name:
Title: Title:
JPMORGAN CHASE BANK, as Security
Deposit Trustee
By:
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Name:
Title:
JPMORGAN CHASE BANK, as Securities
Intermediary
By:
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Name:
Title:
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