EXECUTION COPY
Exhibit 10.44
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SECURITY DEPOSIT AGREEMENT
(CH-282SK)
Dated as of December 27, 2001
among
CHAUTAUQUA AIRLINES, INC.,
as Borrower,
AGENCIA ESPECIAL DE FINANCIAMENTO INDUSTRIAL - FINAME,
as Lender
and
JPMORGAN CHASE BANK
as Security Deposit Trustee and Securities Intermediary
* * * * * * * *
One Embraer EMB-145 LR
United States Registration Number N282SK
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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.
EXECUTION COPY
TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS.....................................................................................1
SECTION 1.1 Certain Defined Terms..............................................................1
SECTION 1.2 Other Definitional Provisions......................................................1
SECTION 2. APPOINTMENT OF SECURITY DEPOSIT TRUSTEE; ESTABLISHMENT OF SECURITIES DEPOSIT ACCOUNT............2
SECTION 2.1 Appointment of Security Deposit Trustee............................................2
SECTION 2.2 Creation of Securities Deposit Account.............................................2
SECTION 2.3 Security Interests.................................................................3
SECTION 3. DEPOSITS INTO SECURITIES DEPOSIT ACCOUNT........................................................3
SECTION 3.1 Deposit into Securities Deposit Account............................................3
SECTION 3.2 Deposit Irrevocable................................................................3
SECTION 4. TRANSFERS FROM SECURITIES DEPOSIT ACCOUNT.......................................................3
SECTION 4.1 Payments of Loan B Debt Service....................................................3
SECTION 4.2 Transfers to Lender................................................................4
SECTION 4.3 Transfers Following Certain Events.................................................4
SECTION 4.4 Withholding of Tax.................................................................4
SECTION 5. INVESTMENT......................................................................................5
SECTION 6. SECURITY DEPOSIT TRUSTEE........................................................................5
SECTION 6.1 Rights, Duties, etc................................................................5
SECTION 6.2 Resignation or Removal.............................................................6
SECTION 7. DETERMINATIONS..................................................................................7
SECTION 7.1 Determinations.....................................................................7
SECTION 7.2 Cash Available.....................................................................7
SECTION 8. MISCELLANEOUS...................................................................................8
SECTION 8.1 Severability.......................................................................8
SECTION 8.2 Counterparts.......................................................................8
SECTION 8.3 Amendments.........................................................................8
SECTION 8.4 APPLICABLE LAW; JURISDICTION.......................................................8
SECTION 8.5 Notices; Payments..................................................................8
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SECTION 8.6 Benefit of Agreement...............................................................9
SECTION 8.7 Securities Account Control Agreement...............................................9
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EXECUTION COPY
SECURITY DEPOSIT AGREEMENT (CH-282SK)
SECURITY DEPOSIT AGREEMENT (CH-282SK) dated as of December 27, 2001
(this "AGREEMENT"), among Chautauqua Airlines, Inc., a New York corporation
("BORROWER"), 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"), JPMorgan Chase Bank, in its capacity as
Security Trustee and as security deposit trustee hereunder ("SECURITY DEPOSIT
TRUSTEE"), and JPMorgan Chase Bank, in its capacity as securities intermediary
hereunder ("SECURITIES INTERMEDIARY").
WHEREAS, concurrently with the execution and delivery of this
Agreement, Borrower and Lender are entering into a Loan Agreement (Direct Loans)
(CH-282SK) dated as of even date herewith (the "LOAN AGREEMENT") pursuant to
which Lender agrees, subject to certain conditions contained in the Loan
Agreement to make loans to the Borrower, evidenced by Note A and Note B, for the
purpose of financing the export of the Aircraft;
WHEREAS, the obligations of Borrower under the Loan Agreement, the
Notes and the other Operative Agreements and the other Secured Obligations are
secured by either the Security Agreement or by this Agreement; and
NOW, THEREFORE, in consideration of the premises and of other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
SECTION 1.1 CERTAIN DEFINED TERMS. Capitalized terms used herein and
not otherwise defined herein shall have the meanings assigned to such terms in
the Loan Agreement.
SECTION 1.2 OTHER DEFINITIONAL PROVISIONS.
(a) All terms defined in this Agreement shall have the defined
meanings when used in any notice, certificate or other document given or
delivered pursuant hereto.
(b) The words "HEREOF," "HEREIN" and "HEREUNDER" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and section,
subsection, schedule, appendix and exhibit references are to this Agreement
unless otherwise specified.
(c) Any term defined by reference to an agreement, instrument or
other document shall have the meaning so assigned to it whether or not such
agreement, instrument or document is in effect.
(d) The meanings given to terms defined herein shall apply to
both the singular and plural forms of such terms.
(e) Except as otherwise specified, each reference in this
Agreement to an Operative Agreement shall be deemed to refer to such Operative
Agreement as the same may be amended, supplemented or otherwise modified from
time to time.
(f) Each reference in this Agreement to an applicable Law shall
be deemed to refer to such applicable Law as the same may be amended,
supplemented or otherwise modified from time to time.
(g) Each reference in this Agreement to a Person shall be deemed
to include such Person's successors and assigns.
SECTION 2. APPOINTMENT OF SECURITY DEPOSIT TRUSTEE;
ESTABLISHMENT OF SECURITIES DEPOSIT ACCOUNT
SECTION 2.1 APPOINTMENT OF SECURITY DEPOSIT TRUSTEE. The Lender hereby
appoints Security Trustee, as Security Deposit Trustee, and Security Trustee,
hereby agrees to act in accordance with the express terms of this Agreement.
Security Deposit Trustee agrees to accept all cash and investments to be
delivered to or held by Security Deposit Trustee pursuant to the terms of this
Agreement and, from such cash and investments, to make the transfers and
distributions contemplated by this Agreement as and when required, subject to
and in accordance with the terms hereof. Security Deposit Trustee shall hold and
safeguard the Securities Deposit Account (and the cash and investments on
deposit therein) during the term of this Agreement and shall treat the
Securities Deposit Account and the cash and investments on deposit therein as an
account and shall hold the cash and investments pledged by Borrower to Lender
hereunder, as agent for, and for the benefit of, Lender in trust in accordance
with the provisions hereof and will xxxx its records and all related documents
to reflect that all such sums are held in trust for the benefit of Lender. The
agreements of the Security Deposit Trustee under this Section 2.1 are expressly
made subject to the provisions of Section 6.1 hereof.
SECTION 2.2 CREATION OF SECURITIES DEPOSIT ACCOUNT.
(a) The Security Deposit Trustee hereby confirms that the
Security Deposit Trustee 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-282SK) dated as of December 27,
2001 Attn: Management (such account and any successor account the "SECURITIES
DEPOSIT ACCOUNT") at the office of the Securities Intermediary located at 000
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as a special, segregated
non-interest bearing and irrevocable trust account, which account shall be
maintained at all times until the termination of this Agreement.
(b) All cash and investments at any time on deposit in the
Securities Deposit Account shall constitute trust funds to be held in the
custody of Security Deposit Trustee for the purposes and on the terms set forth
in this Agreement.
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SECTION 2.3 SECURITY INTERESTS.
(a) In order to secure the performance by Borrower of the Secured
Obligations relating to Loan B (the "LOAN B SECURED Obligations"), Borrower
hereby pledges and assigns to Security Deposit Trustee, and creates in favor of
Security Deposit Trustee, for the benefit of Lender, a first lien on and prior
perfected security interest in and to, all of Borrower's right, title and
interest in and to the Securities Deposit Account and all cash and investments
at any time on deposit in the Securities Deposit Account and all proceeds of any
of the foregoing (collectively, the "SECURITY DEPOSIT COLLATERAL").
(b) All Security Deposit Collateral shall constitute collateral
security as set forth in SECTION 2.3(a) for the payment and performance by
Borrower of the Loan B Secured Obligations and shall at all times be subject to
the sole dominion and control of Security Deposit Trustee, and shall be held in
the custody of Security Deposit Trustee in trust for the purposes of, and on the
terms set forth in, this Agreement.
(c) Borrower shall not have any rights or powers with respect to
the Security Deposit Collateral except that Borrower shall have the right to
have the cash and investments in the Securities Deposit Account transferred in
accordance with Section 4.
(d) The agreements of the Security Deposit Trustee under this
SECTION 2.3 are expressly made subject to the provisions of SECTION 6.1 hereof.
Other than as expressly set forth hereunder and under the Securities Account
Control Agreement, the Security Deposit Trustee shall at no time have any
responsibility or liability for or with respect to the legality, validity or
enforceability of any Security Deposit Collateral or any arrangement or
agreement between the Borrower and any Person with respect thereto, or the
perfection or priority of any security interest created in any of the Security
Deposit Collateral or the maintenance of any such perfection and priority, or
for or with respect to the sufficiency of the Security Deposit Collateral
following an Event of Default.
SECTION 3. DEPOSITS INTO SECURITIES DEPOSIT ACCOUNT
SECTION 3.1 DEPOSIT INTO SECURITIES DEPOSIT ACCOUNT. On the Borrowing
Date, Borrower shall pay an amount equal to the original principal amount of
Note B to Security Deposit Trustee for deposit into the Securities Deposit
Account.
SECTION 3.2 DEPOSIT IRREVOCABLE. The deposit made into the Securities
Deposit Account hereunder shall be irrevocable and the amount of such deposit
and any instrument, investment or security (including Permitted Investments)
held in such Securities Deposit Account hereunder and all interest, gains and
other income thereon shall be held in trust by the Security Deposit Trustee and
applied solely as provided herein.
SECTION 4. TRANSFERS FROM SECURITIES DEPOSIT ACCOUNT
[*]
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[*]
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[*]
SECTION 5. INVESTMENT. Any cash held by Security Deposit Trustee in the
Securities Deposit Account shall be invested by the Security Deposit Trustee in
such Permitted Investments as from time to time directed in writing by Lender;
PROVIDED, HOWEVER, that for the purposes of this Section 5 a Permitted
Investment may (i) include trust accounts of the Security Deposit Trustee and
(ii) have a maturity which is more than 90 days after the purchase thereof but
not later than the Loan B Maturity Date. Any interest, gain or other income
realized as a result of any such investment shall be held as part of the
Securities Deposit Account and reinvested as provided herein. Neither Security
Deposit Trustee nor Borrower shall have any liability for any loss resulting
from any Permitted Investment or the sale thereof. Any Permitted Investment may
be sold (without regard to maturity date) by Security Deposit Trustee whenever
necessary to make any transfer or distribution required by this Agreement. In
the event that there is more than one Transfer Date, Security Deposit Trustee
shall, however, use its reasonable best efforts to ensure that losses do not
arise from the selection of Permitted Investments to be sold.
SECTION 6. SECURITY DEPOSIT TRUSTEE
SECTION 6.1 RIGHTS, DUTIES, ETC. The acceptance by Security Deposit
Trustee of its duties hereunder is subject to the following terms and conditions
which the parties to this Agreement hereby agree shall govern and control with
respect to the rights, duties, liabilities and immunities of the Security
Deposit Trustee:
(a) it shall act hereunder as an agent only and shall not be
responsible or liable in any manner whatever for soliciting any funds or for the
sufficiency, correctness, genuineness or validity of any funds or securities
deposited with or held by it;
(b) it shall be protected in acting or refraining from acting
upon any written notice, certificate, instruction, request or other paper or
document, as to the due execution thereof and the validity and effectiveness of
the provisions thereof and as to the truth of any information therein contained,
which it in good faith believes to be genuine;
(c) it shall not be liable for any error of judgment or for any
act done or step taken or omitted except in the case of its own gross negligence
or willful misconduct or negligence in the handling of funds;
(d) it may consult with and obtain advice from counsel of its own
choice in the event of any dispute or question as to the construction of any
provision hereof;
(e) it shall have no duties as Security Deposit Trustee except
those which are expressly set forth herein and in any modification or amendment
hereof; PROVIDED, HOWEVER,
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that no such modification or amendment hereof shall affect its rights or duties
unless it shall have given its prior written consent thereto;
(f) it may execute or perform any duties hereunder either
directly or through agents or attorneys;
(g) it may engage or be interested in any financial or other
transactions with any party hereto and may act on, or as depositary, or trustee
for, any committee or body of holders of obligations of such Persons as freely
as if it were not the Security Deposit Trustee hereunder;
(h) it shall not be obligated to take any action which in its
reasonable judgment would involve it in any material expense or liability unless
it has been furnished with reasonable indemnity;
(i) except in so far as such provisions may conflict with or be
limited by the terms hereof, the provisions applicable to the Security Trustee
under the Security Agreement, insofar as they relate to this Agreement, are
hereby incorporated by reference herein;
(j) the standard of liability of the Security Trustee hereunder
is as provided in Section 7.1 of the Security Agreement; and
(k) the provisions of Section 7.5 of the Security Agreement shall
be applicable to this Agreement, mutatis mutandis.
SECTION 6.2 RESIGNATION OR REMOVAL.
(a) Security Deposit Trustee may at any time resign by giving
notice to each other party to this Agreement, such resignation to be effective
upon the appointment of a successor Security Deposit Trustee as hereinafter
provided.
(b) Lender may remove Security Deposit Trustee at any time by
giving notice to each other party to this Agreement. Borrower may remove
Security Deposit Trustee at any time with the approval of Lender by giving
written notice to Security Deposit Trustee (countersigned by Lender). Each such
removal shall be effective only upon the appointment of a successor Security
Deposit Trustee as hereinafter provided and upon payment of the existing
Security Deposit Trustee's unpaid fees and expenses (including reasonable legal
fees and disbursements).
(c) In the event of any resignation or removal of Security
Deposit Trustee, a successor Security Deposit Trustee shall be appointed by
Lender. Such successor Security Deposit Trustee shall be (i) a bank or trust
company organized under the laws of the United States of America (the "UNITED
STATES") or of a State of the United States, having a corporate trust office in
a State of the United States, and having a capital and surplus of not less than
$500,000,000, or (ii) a foreign bank having a United States branch office in New
York City, and having a capital and surplus of not less than $1,000,000,000. If
a successor Security Deposit Trustee shall not have been appointed and shall not
have accepted its appointment as Security
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Deposit Trustee hereunder within 45 days after such notice of resignation of
Security Deposit Trustee or such notice of removal of Security Deposit Trustee,
Security Deposit Trustee or Lender may apply to any court of competent
jurisdiction to appoint a successor Security Deposit Trustee to act until such
time, if any, as a successor Security Deposit Trustee shall have accepted its
appointment as above provided. Any successor Security Deposit Trustee so
appointed by such court shall immediately and without further act be superseded
by any successor Security Deposit Trustee appointed by Lender. Any such
successor Security Deposit Trustee shall deliver to each party to this Agreement
a written instrument accepting such appointment hereunder and thereupon such
successor Security Deposit Trustee shall succeed to all the rights and duties of
Security Deposit Trustee hereunder and, upon payment of the existing Security
Deposit Trustee's unpaid fees and expenses (including reasonable legal fees and
disbursements), shall be entitled to receive all cash and investments then on
deposit in the Securities Deposit Account from the predecessor Security Deposit
Trustee.
(d) Any corporation into which the Security Trustee may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Security Trustee shall
be a party, or any corporation to which all or substantially all of the
corporate trust business of the Security Trustee may be transferred, shall,
subject to the terms of paragraph (c) of this Section, be the Security Trustee
under this Security Agreement without further act.
SECTION 7. DETERMINATIONS
SECTION 7.1 DETERMINATIONS. Borrower, Lender and Security Deposit
Trustee may establish procedures not inconsistent with this Agreement pursuant
to which Security Deposit Trustee may conclusively determine, for purposes of
this Agreement, the amounts from time to time to be transferred, distributed or
paid by Security Deposit Trustee from cash available in the Securities Deposit
Account. In the event of any dispute between the required signatories to a
certificate to be delivered under this Agreement as to any amount payable in
relation to such certificate, Security Deposit Trustee is authorized and
directed to retain such disputed amount in its possession without liability to
anyone until such dispute shall have been settled by mutual agreement of the
signatories to such certificate or by a final order, decree or judgment of a
Federal or State court of competent jurisdiction located in the State of New
York, and time for an appeal has expired and no appeal has been perfected, but
the Security Deposit Trustee shall be under no duty whatsoever to institute or
defend any such proceedings. In the event of a dispute in relation to any other
amount, Security Deposit Trustee shall act on the instructions of Lender.
SECTION 7.2 CASH AVAILABLE. In determining the amount of cash
available in the Securities Deposit Account at any time, in addition to any cash
then on deposit in such Securities Deposit Account, Security Deposit Trustee
shall treat as cash available the amount which Security Deposit Trustee would
have received on such day if it had liquidated all the Permitted Investments (at
then prevailing market prices) then on deposit in the Securities Deposit
Account. Security Deposit Trustee will use its best efforts to sell Permitted
Investments such that actual cash is available on each date on which each
transfer, withdrawal or distribution is to be made pursuant to this Agreement so
that Security Deposit Trustee can make such transfer,
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withdrawal or distribution in cash on such date. The amount of any check or
other instrument which may be deposited in the Securities Deposit Account shall
not be treated as cash available until the final collection thereof.
SECTION 8. MISCELLANEOUS
SECTION 8.1 SEVERABILITY. If any one or more of the covenants or
agreements provided in this Agreement on the part of the parties hereto to be
performed should be determined by a court of competent jurisdiction to be
contrary to law, such covenant or agreement shall be, to the extent permitted by
applicable Law, deemed and construed to be severable from the remaining
covenants and agreements herein contained and shall in no way affect the
validity of the remaining provisions of this Agreement.
SECTION 8.2 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument; 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 Lender.
SECTION 8.3 AMENDMENTS. This Agreement may not be amended,
supplemented, waived or otherwise modified without the prior written consent of
each of the parties hereto.
SECTION 8.4 APPLICABLE LAW; JURISDICTION. THIS AGREEMENT SHALL IN ALL
RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE
OF NEW YORK.
SECTION 8.5 NOTICES; PAYMENTS. All notices, demands, instructions and
other communications of any kind required or permitted to be given to or made
upon either party hereto or in respect of this Agreement shall be made in
English, in writing, and shall be personally delivered or sent by registered or
certified mail, postage prepaid, by facsimile device, or by overnight service or
prepaid courier service, and shall be deemed to be given for purposes hereof (A)
if delivered in person or by overnight service or prepaid courier service, on
the day that such writing is delivered, (B) if given by registered or certified
mail on the date shown in the relevant receipt, or (C) if made by fax, upon
receipt by the sender of transmission confirmation (PROVIDED, that any such fax
transmission shall be confirmed by mailing a copy of such notice or transmission
by registered mail). Unless otherwise specified in a notice sent or delivered in
accordance with the foregoing provisions of this Section 8.5, notices, demands,
instructions and other communications in writing shall be given to or made upon
the respective parties hereto at their respective addresses (or to their
respective facsimile numbers) as follows:
Borrower: Chautauqua Airlines, Inc.
0000 X. Xxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxxxx, XX 00000-0000
Attn.: ___________
Tel.: (000) 000-0000
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Fax: (000) 000-0000
with a copy to:
Wexford Capital LLC
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attn.: Xxx Xxxxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
Lender: [*]
Security Deposit Trustee: JPMorgan Chase Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Institutional Trust Services
Tel: 000-000-0000
Fax: 000-000-0000/8159/8160
In each case herein in which a written notice to the Security Deposit Trustee is
required, such notice shall be in form reasonably satisfactory to the Security
Deposit Trustee.
SECTION 8.6 BENEFIT OF AGREEMENT. This Agreement shall inure to the
benefit of, and be enforceable by, the parties hereto and their respective
successors and permitted assigns, and no other Person shall be entitled to any
of the benefits of this Agreement.
SECTION 8.7 SECURITIES ACCOUNT CONTROL AGREEMENT. Concurrently with
the execution and delivery of this Agreement, the Securities Deposit Trustee
shall execute and deliver the Securities Account Control Agreement (CH-282SK)
dated as of December 27, 2001 among Borrower, Lender, the Security Deposit
Trustee and JPMorgan Chase Bank, as Securities Intermediary.
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IN WITNESS WHEREOF, the parties hereto have each caused this
Security
Deposit Agreement to be duly executed by their duly authorized officers, all as
of the day and year first above written.
CHAUTAUQUA AIRLINES, INC., as
Borrower AGENCIA ESPECIAL DE
FINANCIAMENTO INDUSTRIAL -
FINAME, as Lender
By: By:
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Name: Name:
Title: Title:
JPMORGAN CHASE BANK, in its
capacity as Security Trustee and
as Security Deposit Trustee
By:
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Name:
Title:
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