CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT
Exhibit 10.14
================================================================================
EXECUTION VERSION
----------
LEASE EXTENSION AND AMENDMENT AGREEMENT
dated as of
April 30, 2003
to
AIRCRAFT LEASE AGREEMENT
dated as of November 18, 1998
BETWEEN
AVIATION FINANCIAL SERVICES, INC.
as Lessor
AND
COMPANIA PANAMENA DE AVIACION, S.A.
as Lessee
----------
One Boeing Model 737-7V3 Aircraft
Manufacturer's Serial No. 30049
================================================================================
LEASE EXTENSION AND AMENDMENT AGREEMENT
to
Aircraft Lease Agreement
This is a LEASE EXTENSION AND AMENDMENT AGREEMENT dated as of April 30,
2003 to the Aircraft Lease Agreement dated as of November 18, 1998 (the "Lease
Agreement") between AVIATION FINANCIAL SERVICES, INC. ("Lessor"), and COMPANIA
PANAMENA DE AVIACION, S.A. ("Lessee") as the Lease Agreement has been heretofore
supplemented, amended and modified by Lease Supplement No. 1 dated October 14,
1999 ("Lease Supplement No. 1"), by Letter Agreement No. 1 dated as of November
18, 1998 ("Letter Agreement No. 1") and by Letter Agreement No. 2 dated as of
March 8, 1999 ("Letter Agreement No. 2"), in each case between Lessor and Lessee
(the Lease Agreement as so supplemented, amended and modified is hereinafter
referred to as the "Lease").
WHEREAS, the Lease is in respect of one Boeing 737-7V3 Aircraft
Manufacturer's Serial No. 30049 and Registration No. HP-1371CM, together with
two CFM International Model CFM 56-7B24 engines bearing manufacturer's serial
numbers 875941 and 875873 and certain related equipment (the "Aircraft"), and
WHEREAS, Lessee and Lessor desire to extend the Term of the Lease and to
amend certain other terms thereof; and
WHEREAS, capitalized terms used and not otherwise defined herein shall have
the meanings ascribed to them in the Lease.
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties hereto agree as follows:
1. Amendments to Lease.
The Lease is hereby amended as follows:
A. Section 3(g) is hereby amended and restated as follows:
"(g) Lease Term Renewal Options: Lessor hereby grants Lessee the
right to renew the lease for up to three (3) additional, consecutive
terms (each a "Renewal Term") (the option to renew for each Renewal
Term being hereafter referred to as the "Lease Term Renewal Option").
Each Renewal Term shall consist of twelve (12) months, and the first
Renewal Term would commence the day following the Expiration Date of
the Basic Term. Exercise of each Lease Term Renewal Option shall be
subject to (i) the delivery by Lessee of written notice to Lessor (a
"Renewal Notice") as to such exercise at least nine (9) months prior
to the then applicable Expiration Date, and (ii) no Event of Default
having occurred and continuing on or as of the date the Renewal Notice
is received by Lessor or the first Basic Rent Payment Date of the
applicable Renewal Term. The
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Basic Rent during any such Renewal Term shall be payable monthly in
advance at the same monthly Basic Rent rate paid by Lessee during the
Basic Term (as extended by any previous extension or exercise of a
Lease Term Renewal Option) that would otherwise be expiring. Upon
commencement of a Renewal Term the Basic Term shall be deemed extended
so that the new Expiry Date becomes the date which occurs on the
twelfth monthly anniversary of the Expiration Date in effect prior to
the renewal and the new Last Basic Rent Payment Date becomes the date
which occurs on the twelfth monthly anniversary of the Last Basic Rent
Payment Date in effect prior to the renewal. Upon exercise of any
Lease Term Renewal Option such Option shall be deemed extinguished and
not be available for any subsequent re-exercise."
B. In Exhibit C, Part 2. DEFINITIONS OF CERTAIN TERMS, the following
definitions are amended and restated to read:
"BASIC RENT: The Basic Rent payable during the Basic Term shall be
payable in one hundred twenty (120) consecutive monthly installments,
in advance on each Basic Rent Payment Date, with each such installment
equal to: (a) **Material Redacted** for the first twenty four monthly
installments, (b) **Material Redacted** for the next twelve monthly
installments, (c) **Material Redacted** for the twenty four monthly
installments commencing with the thirty seventh (37th) installment and
(d) **Material Redacted** for the sixty monthly installments of Basic
Rent commencing November 1, 2004 and for each installment of Basic
Rent during any Renewal Term which may be commenced in a period
subsequent to the Expiration Date."
"CASUALTY VALUE: For the period of the Lease through April 30, 2003
**Material Redacted**; for the period May 1, 2003 through December 15,
2004 **Material Redacted**; and for the one year period commencing
December 16, 2004 and each one year period in the Lease Term
commencing December 16 thereafter the amount of the Casualty Value in
the immediately preceding one year period less **Material Redacted**."
"LAST BASIC RENT PAYMENT DATE: The Last Basic Rent Payment Date for
the Aircraft shall be October 1, 2009, or such later date as may
result from exercise of the Lease Term Renewal Options.
C. In Exhibit C, a new Part 5 is added after the current Part 4, as
follows:
"5. INSTALLATION AND COST AMORTIZATION OF WINGLETS:
Notwithstanding any provision of the Lease to the contrary,
Lessor will reimburse Lessee, Lessee's actual cost of installing
winglets on the Aircraft ("Winglets Actual Cost") up to a maximum
of **Material Redacted**, provided such installation occurs no
later than April 2004.
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Each monthly installment of Basic Rent will be increased by
**Material Redacted** of the Winglets Actual Cost commencing on
the first Basic Rent Payment Date following winglet installation.
Upon installation, such winglets shall become a part of the
Aircraft and title thereto shall vest in Owner in accordance with
Section 9 (b) of the Lease."
D. In Exhibit C, a new Part 6 is added after the new Part 5, as follows:
"6. INSTALLATION AND COST AMORTIZATION OF ADDITIONAL MODIFICATIONS:
Notwithstanding any provision of the Lease to the contrary,
Lessor will reimburse Lessee, Lessee's actual cost of installing
on the Aircraft up to an aggregate maximum (for all
installations) of **Material Redacted** ("Additional
Modifications Actual Cost") the following additional
modifications:
(I) ACARS: Installation of upgrade from single ARINC 724B
Rockwell ACARS Management Unit,
(II) ISFD: Integrated Standby Flight Display, provided that such
retrofit allows for the restoration of the original units
back onto the Aircraft,
(III) FULL FACE OXYGEN MASKS, and
(IV) VSD: Vertical Situation Display;
provided such installation occurs no later than April 30, 2004.
After each installation of such additional modifications each
monthly installment of Basic Rent will be increased by **Material
Redacted** of the Additional Modifications Actual Cost commencing
on the first Basic Rent Payment Date following such installation.
Upon installation, such additional modifications shall become a
part of the Aircraft and title thereto shall vest in Owner in
accordance with Section 9 (b) of the Lease."
E. In Exhibit C, a new Part 7 is added after the new Part 6, as follows:
"7. MCPH
Subject to mutual agreement, Lessee and Lessor may enter into a
Maintenance Cost Per Hour arrangement (MCPH) with GE Engine
Services (GEES) to cover engine scheduled refurbishments for the
Engines subject to the Lease. Related workscopes, engine repair
specifications and general terms and conditions covered by MCPH
shall be mutually agreed between Lessor, Lessee and GEES."
3
F. To clarify the ownership impact of alterations, modifications, and
additions the following amendments are made to Section 9 (b) of the
Lease:
1. In the fourth sentence the word "Lessor" is replaced by "Owner";
and
2. In the fifth sentence the phrase "or Owner" is added after the
word "Lessor".
G. For the purpose of correcting certain typographical errors in the
prior exhibit, Revised Exhibit G (Form of Letter of Credit attached
hereto as Schedule 1) shall replace in entirety the existing Exhibit G
for all purposes of the Lease.
2. Lease Supplement.
Section 3 of Lease Supplement No. 1 is hereby amended by deleting the text
thereof and by substituting therefor the following:
"3. The Term for the Delivered Aircraft shall commence on the Delivery
Date and shall end on the Expiration Date, as hereinafter defined, or
such later date as may result from exercise of the Lease Term Renewal
Options." The Expiration Date shall be October 31, 2005 but shall be
automatically extended on such date and on each of October 31, 2006,
October 31, 2007, and October 31, 2008 to provide additional
successive one (1) year Terms through and until a final extended
Expiration Date of October 31, 2009 unless Lessor and Lessee shall
mutually agree in writing that any such automatic extension shall not
take place."
3. Ratification.
Except as expressly provided herein, Lessee and Lessor acknowledge that
nothing contained in this Amendment is intended to discharge, amend or otherwise
modify their respective rights and/or obligations under the Lease. The Lease and
the Lease Supplement are hereby ratified and confirmed, as amended hereby, in
all respects.
4. Representations and Warranties of Lessee.
Lessee represents and warrants to Lessor that:
(a) Lessee is a corporation duly formed, validly existing, and in good
standing under the laws of the Republic of Panama;
(b) Lessee has full corporate power, authority and legal right to own its
property and to carry on its business as now being conducted and is duly
authorized to execute and deliver this Lease Extension and Amendment Agreement,
and to perform its obligations hereunder;
4
(c) This Lease Extension and Amendment Agreement have been duly authorized,
executed and delivered by Lessee and constitute the legal, valid and binding
obligations of Lessee enforceable in accordance with their terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency, moratorium
or other similar laws affecting creditors' rights generally and subject to
principles of equity;
(d) The execution and delivery by Lessee of this Lease Extension and
Amendment Agreement will not conflict with or result in any breach of,
constitute any default under, or result in the creation of any lien, charge or
encumbrance pursuant to, any applicable law, any term or provision of Lessee's
articles of incorporation or by-laws or any judgment, order, writ, injunction,
or decree of any court, comission, board or Governmental Entity, or contravene
any indenture, mortgage, credit agreement, lease, license, contract or other
agreement to which Lessee is a party or by which it is bound;
(e) All consents or approvals required of Lessee by any Governmental Entity
or other Person in connection with the execution and delivery of this Lease
Extension and Amendment Agreement and the consummation by Lessee of the
transactions contemplated hereby and thereby have been duly obtained or waived;
and except for the filing of this Amendment with the DAC, no other filings,
recording, notarizations or other actions are necessary or advisable under the
laws of Panama in order to ensure the validity, effectiveness and enforceability
of the Lease as amended hereby;
(f) There are no pending or threatened actions or proceedings before any
court or administrative agency or other matters which might materially adversely
affect the ability of Lessee to perform its obligations under this Lease
Extension and Amendment Agreement; and
(g) Lessee is subject to private commercial law and suit under the Laws of
the Republic of Panama and any other jurisdiction affecting the Lessee. Lessee
is not entitled to sovereign immunity under the Laws of the Republic of Panama
or such other jurisdiction, and neither Lessee nor its properties or assets have
the right of immunity from suit or execution on the grounds of sovereignty in
the Republic of Panama or any other jurisdiction. To the extent that Lessee may
in any jurisdiction in which proceedings may at any time be taken for the
determination of any question arising under or for the enforcement of this Lease
Extension and Amendment Agreement (including any interlocutory proceedings or
the execution of any judgment or award arising therefrom) be entitled to claim
or otherwise be accorded for itself or its property, assets or revenues immunity
from suit or attachment (whether in aid of execution, before judgment or
otherwise) or other legal process, and to the extent that in any such
jurisdiction, there may be attributed to Lessee or its private assets or
revenues, such immunity (whether or not claimed), Lessee hereby irrevocably
agrees not to claim and waives such immunity to the fullest extent permitted by
the law of such jurisdiction;
5. Representations and Warranties of Lessor.
Lessor represents and warrants to Lessee that:
5
(a) Lessor is a corporation duly formed, validly existing and in good
standing under the laws of Delaware;
(b) Lessor has full corporate power, authority and legal right to own its
property and to carry on its business as now being conducted and is duly
authorized to execute and deliver this Lease Extension and Amendment Agreement,
and to perform its obligations hereunder and thereunder;
(c) This Lease Extension and Amendment Agreement have been duly authorized,
executed and delivered by Lessor and constitute the legal, valid and binding
obligations of Lessor enforceable in accordance with their terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency, moratorium
or other similar laws affecting creditors' rights generally and subject to
principles of equity;
(d) The execution and delivery by Lessor of this Lease Extension and
Amendment Agreement will not conflict with or result in any breach of,
constitute any default under, or result in the creation of any lien, charge or
encumbrance pursuant to, any applicable law, any term or provision of Lessor's
articles of incorporation or by-laws or any judgment, order, writ, injunction,
or decree of any court, commission, board of Governmental Entity, or contravene
any indenture, mortgage, credit agreement, lease, license, contract or other
agreement to which Lessor is a party or by which it is bound;
(e) All consents or approvals required of Lessor by any Governmental Entity
in connection with the execution and delivery of this Lease Extension and
Amendment Agreement and the consummation by Lessor of the transactions
contemplated hereby and thereby have been duly obtained or waived;
(f) There are no pending or threatened actions or proceedings before any
court or administrative agency or other matters which might materially adversely
affect the ability of Lessor to perform its obligations under this Lease
Extension and Amendment Agreement; and
(g) Head Lessor has given its consent to this Amendment and, to the extent
necessary, the Head Lease has been amended accordingly.
6. Conditions Precedent.
This Amendment and Lessor's obligation to extend the Lease shall take
effect upon the satisfaction of each of the following conditions and receipt of
the following documents by Lessor:
(a) Legal Opinion: at Lessee's expense, a legal opinion of Lessee's
Panamanian counsel in form and substance satisfactory to Lessor and confirming,
inter alia, that this Lease Extension and Amendment Agreement have been duly
signed and delivered on behalf of Lessee, that this Lease Extension and
Amendment Agreement constitute Lessee's legal, valid and binding obligations
(subject to customary exclusions), and that all approvals, licenses, consents,
filings and registrations which are necessary or desirable in connection with
this Lease Extension and
6
Amendment Agreement and the performance by Lessee of its obligations hereunder,
thereunder and under the Lease as extended hereby and thereby have been obtained
and are in full force and effect; and
(b) No Default: No Default or Event of Default shall have occurred and be
continuing as of the date hereof and the date of the commencement of the renewed
terms contemplated hereby.
7. Miscellaneous.
(a) Amendment. No amendment, modification or waiver of any provision of
this Lease Extension and Amendment Agreement shall in any event be effective
unless the same shall be in writing and signed by the parties hereto or, in the
case of a waiver, by the party waiving compliance, and then such waiver shall be
effective only in the specific instance and for the specific purpose for which
given.
(b) Notices. Any notices, requests, demands or other communications
required or permitted to be made hereunder shall be in writing and shall be
delivered by reputable courier service, by hand and/or facsimile as follows:
To Lessor: Aviation Financial Services Inc.
c/o GE Capital Aviation Services
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Contracts Leader
Facsimile: 000-000-0000
Telephone: 000-000-0000
Email: xxxxxxx@xxxxx.xxx
To Lessee: Compania Panamena De Aviacion, S.A.
Avenida Xxxxx Xxxxxxxxx y Calle 39
Aptdo. 1572 Xxxxxx 0,
Xxxxxxxx of Panama
Attn: Executive President
Facsimile number: 000-000-0000
or in each case to such other person or address or addresses as one party may
notify in writing to the other party. All other communications and any notice of
change of address shall be deemed to have been received (and reference herein to
receipt by any party shall include deemed receipt) by the party to whom it is
addressed when received, in the case of notice given facsimile, or on delivery,
if delivered by reputable courier service or by hand.
(c) Governing Law. THIS AMENDMENT, SHALL IN ALL RESPECTS BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
7
(d) Severability. If any one or more of the provisions contained in this
Amendment or any document executed in connection herewith shall be invalid,
illegal or unenforceable in any respect under any law, the validity, legality
and enforceability of the remaining provisions contained herein shall not in any
way be affected or impaired.
(e) Counterparts. This Amendment may be executed in counterparts and any
single counterpart or set of counterparts signed in either case, by all of the
parties hereto shall for all purposes be deemed to be an original, and all such
counterparts when taken together shall constitute one and the same instrument. A
facsimile signature on any counterpart hereto will be deemed an original for all
purposes.
(f) Entire Agreement. The terms and conditions contained in the Lease, this
Lease Extension and Amendment Agreement and the other documents and instruments
executed in connection therewith or herewith constitute the entire agreement
among the parties pertaining to the subject matter thereof and hereof and
supersede all prior agreements, understandings, negotiations and discussions,
whether oral or written, of the parties.
(g) Headings. The headings in this Amendment are for reference only, and do
not form part of and are not to be used to interpret this Amendment.
(h) Expenses and Brokers. Lessee shall be responsible for all costs
associated with perfecting this Lease Extension and Amendment Agreement in the
Country of Registration, the state of habitual base of the Aircraft (and other
states as appropriate given the operation of the Aircraft), including (but not
limited to) the provision of stamp duties, translations and registrations,
whether required by Lessor or Lessee. Each of the parties hereby represents and
warrants to the other that it has not paid, agreed to pay or caused to be paid
directly or indirectly in any form, any commission, percentage, contingent fee,
brokerage or other similar payments of any kind, in connection with the
establishment or operation of this Lease Extension and Amendment Agreement, to
any Person (other than fees payable to Lessee's or Lessor's legal advisers or
compensation to GECAS for the portfolio management services performed on behalf
of Lessor). Each party agrees to indemnify and hold the other harmless from and
against any and all claims, suits, damages, costs and expenses (including, but
not limited to reasonable attorneys' fees) asserted by any agent, broker or
other third party for any commission or compensation of any nature whatsoever
based upon this Lease Extension and Amendment Agreement or the Aircraft, if such
claim, suit, damage, cost or expense arises out of any breach by the
indemnifying party, its employees or agents of the representation and warranty
given hereby.
(i) Filing and Recordation. Lessee at its expense shall cause this
Amendment to be duly filed with the Civil Aeronautics Authority and to be
recorded at the Office of the Public Registry of Panama.
(j) Further Assurances. Each party shall cooperate with the other and
execute and deliver such instruments and other documents as may be necessary to
effectuate and carry out the provisions of this Lease Extension and Amendment
Agreement.
8
(k) Successors and Assigns. This Amendment shall inure to the benefit of,
and be binding upon, the parties hereto and their respective successors and
assigns.
(l) Time is of the Essence. Except as otherwise provided herein, time is of
the essence with respect to each provision of this Lease Extension and Amendment
Agreement.
(m) Controlling Version. This Lease Extension and Amendment Agreement has
been negotiated, executed and delivered in English. In case of any conflict or
discrepancy between the executed English version of this Lease Extension and
Amendment Agreement and any Spanish translation thereof or any extract thereof
recorded at the Public Registry of Panama or any other governmental office, the
English version of this Lease Extension and Amendment Agreement shall prevail.
9
SCHEDULE 1
EXHIBIT G
(Revised)
to
Aircraft Lease Agreement
FORM OF LETTER OF CREDIT
[NAME OF ISSUING BANK]
IRREVOCABLE STANDBY LETTER OF CREDIT
DATED: ____, _____
Aviation Financial Services Inc.
c/o GE Capital Aviation Services
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
A. RE: Letter of Credit ___________
Account Party: Compania Panamena de Aviacion, S.A.
Gentlemen:
At the request and for the account of Compania Panamena de Aviacion, S.A.
("Lessee"), a corporation organized and existing under the laws of Panama, we
hereby establish in your favor, as lessor under that certain Aircraft Lease
Agreement dated as of November 18, 1998 (the "Lease Agreement"), between
Aviation Financial Services Inc. as lessor and Lessee as lessee, our Irrevocable
Standby Letter of Credit No. ____, in the aggregate maximum amount of [as
specified in Exhibit C to the Lease Agreement], effective on the date set forth
above and expiring on the LOC Expiration Date (as defined below).
(i) Funds under this Letter of Credit will be made available to you by wire
transfer in immediately available funds in United States Dollars to an account
to be designated by you in the sight draft referred to below on any Business Day
(as defined below) occurring on or before the LOC Expiration Date, upon
presentation at our offices located at [____________], of a sight draft in the
form attached hereto as Annex A setting forth the amount of the drawing and
referring expressly thereon to the number of this Letter of Credit. We hereby
confirm with you that drafts in conformity with the terms of this Letter of
Credit will be duly honored on the date of such presentation as set forth
herein. All payments hereunder shall be made, free and clear of, and without
deduction for, any present or future fees, taxes, restriction or conditions of
any nature, and without setoff or counterclaim for any reason whatsoever.
(ii) You are hereby authorized to make multiple drawings hereunder in
accordance with the terms and conditions described herein, each drawing upon the
presentation of the documentation referred herein above, provided, however,
subject to the provisions of paragraph (v) below, that the aggregate amount of
all drawings hereunder shall in no event exceed the aggregate maximum amount of
the Letter of Credit.
(iii) This Letter of Credit shall expire, and no drawing hereunder may be
made thereafter, at 5:00 p.m. (EST) on the earliest of the following dates (the
"LOC Expiration Date"): (i) the day which is thirty (30) Days after the
Expiration Date (as defined in the Lease Agreement), or (ii) on the Business Day
on which the aggregate amount of all drawings hereunder, is equal (subject to
the provisions of paragraph (v) herein below) to the aggregate maximum amount of
this Letter of Credit. With respect to paragraph (i) above, it is hereby
expressly provided that in the event that if on or before sixty (60) days prior
to the LOC Expiration Date you do not receive written notice from us whereunder
this Letter of Credit will be renewed on, or a new letter of credit issued in
substantially the form hereof to be effective as of, the LOC Expiration Date
referred to in such paragraph (i), then you may draw against this Letter of
Credit in the manner described herein.
(iv) For the purpose hereof "Business Day" shall mean any day up to 5:00
p.m. (EST), on such day, other than Saturday and Sunday, on which banks in the
United States of America are not authorized or required to close.
(v) Upon payment by us, or on our behalf, of the amount specified in any
draft drawn hereunder, we shall be fully discharged of our obligation under this
Letter of Credit solely in respect of such draft, and we shall not thereafter be
obligated to make any further payments under this Letter of Credit in respect of
such draft to you or to any other person.
(vi) This Letter of Credit may only be transferred to any person who is the
lessor under the Lease Agreement at the time of such transfer.
(vii) This Letter of Credit sets forth in full our understanding, and such
understanding shall not in any way be modified, amended, amplified or limited by
reference to any document or agreement other than the sight drafts referred to
herein, or a written agreement among you, us and Lessee.
(viii) Communications with respect to this Letter of Credit shall be in
writing and if directed to us shall be addressed to us at [_____________],
specifically referring to the number of this Letter of Credit, and, if directed
to you, shall be addressed to you at Aviation Financial Services, Inc., c/o GE
Capital Aviation Services, 000 Xxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxx
00000-0000.
(ix) All banking charges in connection with this Letter of Credit and any
drawings made hereunder shall be for the account of Compania Panamena de
Aviacion, S.A.
(x) This Letter of Credit shall be governed by the Uniform Customs and
Practice for Documentary Credits (1993 Revision) International Chamber of
Commerce Publication No. 500, and, as to matters not covered therein, by the
laws of the State of New York.
________________________________________
[NAME OF ISSUER]
BY
-------------------------------------
Authorized Signature
ANNEX A
To Irrevocable Standby
Letter of Credit No.
(FORM OF SIGHT DRAFT)
(DATE)
(Location)
At sight of this draft pay to the order of (beneficiary) the amount of U.S.
$(amount in figures) (the sum of (amount in Letters) United States Dollars).
To (payment instructions).
Drawn under Letter of Credit No. _______________, dated as of __________,
_____, of
----------------------------------------
(beneficiary signature)
