EXHIBIT 10.11
TO THE EXTENT THAT THIS AIRCRAFT LEASE AGREEMENT CONSTITUTES CHATTEL PAPER
(AS DEFINED IN THE UNIFORM COMMERCIAL CODE AS IN EFFECT IN ANY APPLICABLE
JURISDICTION), NO SECURITY INTEREST IN THIS AIRCRAFT LEASE AGREEMENT MAY BE
CREATED THROUGH TRANSFER OR POSSESSION OF ANY COUNTERPART OTHER THAN THE
ORIGINAL COUNTERPART, WHICH SHALL BE IDENTIFIED AS THE COUNTERPART
DESIGNATED AS THE ORIGINAL ON THE SIGNATURE PAGE OF THIS AGREEMENT BY
LESSOR (AS TERM IS DEFINED HEREIN).
AIRCRAFT LEASE AGREEMENT
Dated as of September 10, 1999
between
GENERAL ELECTRIC CAPITAL CORPORATION
as Lessor
and
MIDWAY AIRLINES CORPORATION
as Lessee
in respect of Aircraft: Boeing 737-700
Serial No: 28613
_________________________________
incorporating the provisions of that certain
COMMON TERMS AGREEMENT
(as defined herein)
______________________________
AIRCRAFT LEASE AGREEMENT
THIS AIRCRAFT LEASE AGREEMENT is made as of September 10, 1999, and is BETWEEN:
(1) GENERAL ELECTRIC CAPITAL CORPORATION, a company incorporated under the laws
of the State of New York, having its principal place of business and chief
executive office at 000 Xxxx Xxxxx Xxxx, Xxxxxxxx, XX 00000 ("Lessor"); and
(2) MIDWAY AIRLINES CORPORATION, a company incorporated under the laws of the
State of Delaware, having its principal place of business and chief
executive office at 0000 Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxxx, XX 00000
("Lessee").
WHEREAS:
(A) Lessee wishes to lease the Aircraft (as defined below) from Lessor, and
Lessor wishes to lease the Aircraft to Lessee, on the terms and subject to
the conditions provided herein;
(B) Lessor and Lessee have entered into the Common Terms Agreement (as defined
below); and
(C) Lessor and Lessee wish to incorporate by reference such Common Terms
Agreement, as well as Schedules A and B attached hereto, into this Aircraft
Lease Agreement for the Aircraft;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. INTERPRETATION
1.1 Definitions: In this Aircraft Lease Agreement, the following capitalized
words and expressions have the respective meanings set forth below and the
meanings set forth in Schedules A and B:
Aircraft means the Airframe and Engines described on Part I of Schedule A
and includes the Aircraft Documents and Records.
Airframe Maintenance Adjustment shall have the meaning as set forth in
Schedule B, Part VI hereof.
Airframe Structural Check means a heavy maintenance visit which shall
include but not be limited to accomplishment of a block C6 Systems and
Structural Check (equivalent to a "D" check), all lesser checks, and
interior refurbishment (including lavatories and galley) consistent with
average industry standards for the first C6 Systems and Structural check
for the Airframe type. Where relevant, the workscope and intervals
(calendar and/or hourly) shall not be less than those prescribed by the
Lessee's Maintenance Program. If the Lessee's Maintenance Program is not a
block program then the Lessee shall perform those tasks required to bridge
the Aircraft to the
1
block program as set forth in Appendix J of the Manufacturer's Maintenance
Planning Document.
Common Terms Agreement means the "Aircraft Lease Common Terms Agreement"
dated as of September 10, 1999 executed by General Electric Capital
Corporation and Midway Airlines Corporation (as in effect on the date
hereof without, unless Lessor and Lessee otherwise expressly agree, giving
any effect to any subsequent amendment, supplement, waiver or other
modification thereto), and which forms part of this Aircraft Lease
Agreement.
Delivery Condition Requirements means the requirements specified in Section
1 of Part III of Schedule A.
Delivery Location means a location in the United States mutually acceptable
to Lessor and Lessee.
Deposit means all amounts payable pursuant to Section 3.1 hereof.
Engine Refurbishment Maintenance Adjustment shall have the meaning as set
forth in Schedule B, Part VI hereof.
Final Delivery Date means the date that is two (2) months after the
Scheduled Delivery Date.
Indemnitee means each of Lessor, GECAS, and each of their respective
shareholders, subsidiaries, Affiliates, partners, servants, contractors,
directors, officers, agents and employees.
LC Amount is not applicable.
Lessee Modification Costs shall have the meaning as defined in the
Modification Side Letter.
Lessee Modification Fee means an amount equal to 1.98% of the Lessee
Modification Costs.
Maintenance Adjustment means collectively the Airframe Maintenance
Adjustment and the Engine Refurbishment Maintenance Adjustment as the
amounts payable by Lessee pursuant to Section 5.4 of the Common Terms
Agreement, Section 3 of this Agreement and Schedule B, Part VI of this
Agreement.
Manufacturer means the manufacturer of the Airframe or an Engine, as the
case may be, as set forth on Part I of Schedule A hereto.
Minimum Measurable Fuel Requirement means 2,000 U.S. gallons.
Modification Side Letter means a side letter agreement between Lessee and
Lessor substantially in the form attached hereto as Schedule C relating to
post-delivery modifications.
2
Other Agreement means the Aircraft Lease Agreement dated as of September
10 1999 entered into between Lessor, on the one hand, and Lessee on the
other hand with respect to the Aircraft bearing serial number 28613, but
only so long as a GE Entity is the lessor thereunder.
Other Aircraft means the Boeing 737-700 aircraft bearing serial number
28613 subject to the Other Agreement.
Other Engines means the two General Electric CFM56-7B24 engines to be
delivered to Lessee with the Other Aircraft and bearing the serial numbers
set forth in Lease Supplement No.2.
Owner means Lessor.
Redelivery Location means (i) such location in the continental United
States as Lessor may elect, or (ii) such other location as may be agreed in
writing by Lessor and Lessee.
Rent means all amounts payable pursuant to Section 3.2 hereof.
Rent Commencement Date means the date on which Lessor tenders the Aircraft
for Delivery to Lessee under Section 4.3(a) of the Common Terms Agreement.
Scheduled Delivery Date means a date notified by Lessor to Lessee in
accordance with Section 4.1(a) of the Common Terms Agreement in January
2000.
Scheduled Delivery Month means January, 2000.
Scheduled Delivery Week is not applicable.
Scheduled Expiry Date means the date falling sixty-one (61) months after
the Rent Commencement Date.
State of Registry means the United States of America.
Sublease Fee means the fee amount set forth in Part VII of Schedule B
hereof.
Supplemental Rent means all amounts payable pursuant to Section 3.3 hereof.
Tax Indemnitee means Lessor and each Financing Party, if any, and each
member of the consolidated group of which Lessor is a member for United
States Federal Income Tax purposes.
Term shall have the meaning as set forth for such word in Section 2.2
herein.
1.2 Interpretation: Unless otherwise defined herein, words and expressions
defined in the Common Terms Agreement have the same respective meanings for
the purposes of this Aircraft Lease Agreement. The construction provisions
of Section 1.2 of the Common Terms Agreement shall apply to this Aircraft
Lease Agreement.
3
2. LEASING
2.1 Agreement to Lease: Subject to the terms and conditions of the Lease,
Lessor will lease the Aircraft to Lessee and Lessee will take delivery of
and lease the Aircraft from Lessor in accordance with the Lease for the
duration of the Term.
2.2 Term: Subject to Sections 4.1 through 4.4 of the Common Terms Agreement,
Delivery of the Aircraft will occur at the Delivery Location, whereupon
Lessee shall accept the Aircraft hereunder and evidence such Delivery and
acceptance by executing and delivering a Certificate of Technical
Acceptance and Lease Supplement No. 1 as provided in Section 4.3 of the
Common Terms Agreement. The Term will commence on the Delivery Date, which
Delivery Date is scheduled to occur on the Scheduled Delivery Date, and
will expire on the Scheduled Expiry Date unless terminated earlier in
accordance with the provisions of the Lease.
3. PAYMENTS
3.1 Deposit: Lessee shall pay to Lessor the Deposit in cash (to which Deposit
Section 5.13 of the Common Terms Agreement shall apply), in the amounts and
at the times provided in Part II of Schedule B hereto.
3.2 Rent: Lessee shall pay Rent to Lessor on each Rent Date during the Term in
the amount provided in Part III of Schedule B hereto and as provided in
Sections 5.2 and 5.3 of the Common Terms Agreement. The first instalment of
Rent shall be due and payable on the Rent Commencement Date as defined
herein. Provided no Default has occurred and is continuing, during the
first Rental Period of this Agreement, Lessor shall grant Lessee a credit
in an amount equal to fifty percent (50%) of the Rent otherwise due and
payable by Lessee hereunder, calculated on a per diem basis for the actual
number of days elapsed, for a period commencing on the Delivery Date to a
date not to exceed thirty (30) days after the Delivery Date during which
the Aircraft is undergoing post-Delivery modifications. Such credit shall
be applied against the Rent then due and payable for the second Rental
Period following the Delivery Date or in such other manner as Lessor and
Lessee may agree.
3.3 Supplemental Rent and Maintenance Adjustment: Lessee shall pay (a)
Supplemental Rent to Lessor on each applicable date during the Term in
accordance with Section 5.4 of the Common Terms Agreement and in the
amounts provided in Schedule B hereto; and (b) the Maintenance Adjustments
to Lessor on the Return Occasion in the amounts provided in Schedule B
hereto and as provided in Section 5.4 of the Common Terms Agreement. Lessor
shall retain all Supplemental Rent and Maintenance Adjustments, subject to
Section 3.4 below.
3.4 Lessor's Maintenance Contribution: Lessor shall make Maintenance
Contributions payments as and to the extent provided in Section 7.2 of the
Common Terms Agreement.
3.5 Lessor's Bank Account: For the purposes of Section 5.5 of the Common Terms
Agreement, Lessor's bank account and wire transfer particulars, to which
all payments to Lessor shall be made, are at the date hereof Bankers Trust
Company, ABA number
4
021 001 033 for the account of GECC T&I Air Depository Account, Account No.
50 255 888.
4. Condition of the aircraft at delivery
4.1 On the Delivery Date, as a condition to Lessee's obligation to accept
delivery thereof, the Aircraft shall be in the condition provided in Part
III of Schedule A; provided, however, Lessee shall have no obligation to
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pay Rent until the Rent Commencement Date.
5. CONDITION OF THE AIRCRAFT AT REDELIVERY
5.1 On the Return Occasion, Lessee shall redeliver the Aircraft to Lessor at
the Redelivery Location and at such redelivery the Aircraft shall be in the
condition provided herein and in the Common Terms Agreement, including
Schedule 6 of the Common Terms Agreement.
6. ADDRESSES FOR NOTICES
The addresses and facsimile and telephone numbers of Lessor and Lessee are
as follows:
Lessor: General Electric Capital Corporation
Address: c/o GE Capital Aviation Services
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Contracts Leader
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Lessee: Midway Airlines Corporation
Address: 0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
7. SCHEDULES AND COMMON TERMS AGREEMENT
All the provisions of Schedule A, Schedule B hereto and the Common Terms
Agreement (including the schedules thereto) are incorporated by reference
herein and are part of this Aircraft Lease Agreement as if they were set
out in full herein. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BY
ITS SIGNATURE BELOW, THE LESSEE ACKNOWLEDGES AND AGREES THAT THE LEASE OF
THE AIRCRAFT HEREUNDER IS ON AN "AS-IS, WHERE-IS" BASIS AND THAT THE
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DISCLAIMERS, EXCULPATIONS AND LIMITATIONS OF LIABILITY, INDEMNITIES, THE
CHOICE OF NEW YORK LAW AS THE GOVERNING LAW, THE LESSEE'S SUBMISSION TO
PERSONAL JURISDICTION IN NEW YORK, AND THE WAIVER OF ANY RIGHT TO A TRIAL
BY JURY PROVIDED FOR IN THE COMMON TERMS AGREEMENT
5
ARE INCORPORATED HEREIN BY SUCH REFERENCE AND ARE PART OF THIS AGREEMENT AS
IF THE SAME WERE SET OUT IN FULL HEREIN.
8. No amendment except in writing
No provision of this Lease, including any provision of Schedule A, Schedule
B or the Common Terms Agreement (including any provision of the schedules
thereto), may be amended, rescinded, changed, waived, discharged,
terminated or otherwise modified in any way whatsoever, except by a writing
signed by the party to be charged. Lessor and Lessee acknowledge their
agreement to the provisions of this Section 8 by their initials below:
Lessor:________ Lessee:_________
6
IN WITNESS WHEREOF, the parties hereto have executed this Aircraft
Lease Agreement, each by their duly authorized representative(s), as
of the date shown at the beginning of this Aircraft Lease Agreement.
LESSOR:
GENERAL ELECTRIC CAPITAL CORPORATION
By: __________________________
Name: __________________________
Title: __________________________
LESSEE:
MIDWAY AIRLINES CORPORATION
By: __________________________
Name: __________________________
Title: __________________________
7
SCHEDULE A
PART I-AIRFRAME AND ENGINES DESCRIPTION
AIRCRAFT
Manufacturer: Boeing
Model: 737-700
Serial Number: 28613
ENGINES (each of which has 750 or more rated takeoff horsepower or the
equivalent of such horsepower)
Manufacturer General Electric
Engine Type: CFM56-7B24
Serial Nos: To be determined and set forth in Lease
Supplement No.2
PART II-AIRCRAFT DOCUMENTS AND RECORDS
A. CERTIFICATES
1. FAA Certificate of Airworthiness (on board aircraft)
2. Current Aircraft Registration Certificate (on board aircraft)
B. AIRCRAFT RECORDS
At delivery the Aircraft will be accompanied by the standard
compliment of manuals and records furnished by the Aircraft and Engine
manufacturers with a new Aircraft for a customer entitled to Customer
Support at the Boeing Level Code 3.
A-1
SCHEDULE A
PART III-DELIVERY CONDITION REQUIREMENTS
Set forth below is a description of the condition in which the Aircraft
must be in order for Lessee to be obligated to accept the Aircraft under
the Lease. It is solely a description of such condition precedent and shall
not be construed as a representation, warranty or agreement of any kind
whatsoever, express or implied, by Lessor with respect to the Aircraft or
its condition, all of which have been disclaimed by Lessor and waived by
Lessee as set forth in the Lease, including in the Common Terms Agreement.
On delivery, the Aircraft shall be new, ex factory and painted in Lessee's
external livery. The Aircraft will be in the condition required for
delivery pursuant to the Purchase Agreement No. 1905 dated as of April 25,
1996 between the Manufacturer (the "Purchase Agreement") and the Aircraft
Specification D6-38808-34 except as amended by change orders initiated by
Lessor under the terms of the Purchase Agreement. The Aircraft shall be
configured in preparation for the configuration modifications as set forth
in the Modification Side Letter.
A-2
SCHEDULE B
COMMERCIAL TERMS
Lessor and Lessee hereby agree that the definitions and other commercial
and financial terms set forth in this Schedule B shall apply to the leasing of
the Aircraft under the Lease.
In addition, Lessor and Lessee understand and agree that the commercial and
financial information contained in this Schedule B are considered by Lessor and
Lessee as proprietary and confidential. Lessor and Lessee each hereby agree,
and any of their assignees, upon becoming such shall agree, that it will treat
this Schedule B as proprietary and confidential and will not, without the prior
written consent of the other, disclose or cause to be disclosed, the terms
hereof or thereof to any Person, except to its agents, representatives,
advisors, employees, counsel, underwriters and auditors as necessary or
appropriate for the leasing transaction which is the subject hereof, or except
(a) as may be required by applicable Law or pursuant to an order, or a valid and
binding request, issued by any court or other Government Entity having
jurisdiction over Lessor, Lessee or the assignee of either of them, as the case
may be, or (b) as necessary to enable Lessor or its assignee to make transfers,
assignments or other dispositions to potential transferees, assignees or
participants of its interest in and to the Lease.
In connection with any such disclosure or any filing of the information
contained herein or therein pursuant to any such applicable Law, Lessor, Lessee
or the assignee of either of them, as the case may be, shall request and use its
best reasonable efforts to obtain confidential treatment of this Schedule B and
the other party will cooperate in making and supporting any such request for
confidential treatment.
PART I CASUALTY OCCURRENCE DEFINITIONS
Agreed Value means [*]
Damage Notification Threshold means [*]
Deductible Amount means [*] or such higher amount as requested by
Lessee and consented to by Lessor in writing (which consent may not be
unreasonably withheld upon receipt of an opinion from an internationally
recognized, independent insurance broker to the effect that such higher
amount is the deductible amount then being maintained by major United
States air carriers with respect to aircraft similar to the Aircraft).
Minimum Liability Coverage means [*]
PART II DEPOSIT; [*]
[*]
* CONFIDENTIAL TREATMENT REQUESTED
B-1
[*] 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 do not apply to the Deposit.
[*]
Interest Rate: The Interest Rate shall be the "prime rate" as quoted in
the Wall Street Journal from time to time during the applicable period
-------------------
[*] per annum, but not to exceed the maximum amount permitted by Law.
PART III RENT
The Rent payable in respect of each Rental Period during the Term will be
[*], per month, which shall be due and payable in advance on each Rent Date
and be based on the yield on U.S. Treasuries with a maturity equal to the
Term (rounded to the nearest whole year) [*] ("Cost of Funds"). Rent will
be adjusted for changes from the assumed Cost of Funds two (2) days prior
to the Scheduled Delivery Date. [*]
PART IV TAX DEFINITIONS; SPECIAL TAX INDEMNITY
TAX DEFINITIONS:
Lessor/Owner Tax Jurisdiction means the United States.
MACRS Deductions means cost recovery deductions for 100% of the cost of the
Aircraft pursuant to Section 168(b) of the Internal Revenue Code of 1986,
as amended (the "Code"), commencing in 1999, computed (a) on the basis that
the Aircraft is "7-year property" within the meaning of Section 168(e) of
the Code), (b) by using the 200% declining balance method over a seven (7)
year recovery period, switching to the straight-line method for the first
taxable year of the Indemnitee during the term for
* CONFIDENTIAL TREATMENT REQUESTED
B-2
which such method yields a larger allowance, (c) assuming salvage value is
zero, and (d) using a half-year convention.
SPECIAL TAX INDEMNITY:
MACRS Deductions Indemnity
Lessee will on demand pay and indemnify each Tax Indemnitee for any loss,
disallowance, or deferral of, or delay in claiming the MACRS Deductions
resulting from Lessee's using the Aircraft in such a manner as to cause the
Aircraft to be treated as "used predominantly outside the United States"
within the meaning of Section 168(g) of the Code (hereinafter referred to
as a "MACRS Loss"). In determining the indemnity required in connection
with a MACRS Loss to the Tax Indemnitee under this Clause, the Tax
Indemnitees shall be assumed to be subject to a combined U.S. and state
income tax rate of (after giving effect to the deductibility of such state
income taxes for U.S. income tax purposes) 38% in 1999 and in each year
thereafter (the "Assumed Tax Rate"), and the Tax Indemnitee will have
sufficient taxable income to be taxed at the Assumed Tax Rate after full
utilization of the MACRS Deductions. The amount payable under this
indemnity shall be the amounts required from time to time, which, after
deduction by the Tax Indemnitee of the amount of all additional U.S.,
state, local, and foreign taxes required to be paid by Tax Indemnitee in
respect of the receipt or accrual of such amount, will equal the increase
in income taxes payable by (or not refundable to) Tax Indemnitee as the
result of such MACRS Loss, plus the amount of any actual interest,
penalties, and additions to tax payable by Tax Indemnitee with respect to
such MACRS Loss.
If, as the result of a MACRS Loss, the amount of the U.S. income taxes
payable by an Tax Indemnitee for any taxable year shall be less than the
amount of such taxes that would have been payable by the Tax Indemnitee had
such MACRS Loss not occurred (or as the result thereof, an Tax Indemnitee
shall receive a refund of U.S. income taxes payable that shall be greater
than the amount of such refund , if any, that the Tax Indemnitee would have
received had such MACRS Loss not occurred), then such Tax Indemnitee shall
pay to the Lessee the amount of such increased reduction in taxes (or
refund, including any actual interest (net of any taxes payable with
respect to such interest) received thereon), plus any net additional U.S.,
state, local, or foreign tax benefits actually realized by the Tax
Indemnitee as the result of any payment made pursuant to this sentence
(such reduction in, or increased refund of, income taxes to be determined
on a hypothetical basis, i.e., assuming the Tax Indemnitee can utilize any
additional tax benefits resulting from the MACRS Loss at the Assumed Tax
Rate); provided, however, that the amount payable by the Tax Indemnitee
pursuant to this sentence shall not exceed the sum of the amounts
previously paid by the Lessee to the Tax Indemnitee pursuant to the
preceding paragraph with respect to such MACRS Loss to the extent not
previously taken into account under this sentence.
PART V SUPPLEMENTAL RENT
The Supplemental Rent payable will be determined with reference to the
following:
B-3
Airframe Supplemental Rent means all Supplemental Rent payable by Lessee
pursuant to Clause (a) below.
Annual Supplemental Rent Adjustment means [*]
APU Supplemental Rent means all Supplemental Rent payable pursuant to
Clause (d) below;
Assumed Ratio Adjustment: For the purposes of Section 5.4 of the Common
Terms Agreement, Assumed Ratio means [*] and any adjustment pursuant to
Clause 5.4 shall be based on the following table:
[*]
Assumed Utilization means an annual utilization of [*] hours.
Engine LLP Supplemental Rent means all Supplemental Rent payable by Lessee
pursuant to Clause (b) below.
Engine Supplemental Rent means all Supplemental Rent payable by Lessee
pursuant to Clause (c) below.
Landing Gear Supplemental Rent means all Supplemental Rent payable by
Lessee pursuant to Clause (e) below.
Supplemental Rent equals each of the following amounts:
(a) Airframe: in respect of the Airframe, [*] ("Airframe Supplemental
---------------------
Rent Rate") for each Flight Hour operated by the Aircraft during the
---------
calendar month ("Airframe Supplemental Rent");
--------------------------
(b) Engine Life-Limited Parts: in respect of the life-limited Parts for
each Engine, [*] ("Engine LLP Supplemental Rent Rate") for each Flight
---------------------------------
Hour operated by that Engine during that calendar month ("Engine LLP
----------
Supplemental Rent");
-----------------
(c) Engines: in respect of each Engine, [*] ("Engine Supplemental Rent
------------------------
Rate") for each Engine Flight Hour (or fraction thereof) operated by
that Engine during that calendar month ("Engine Supplemental Rent");
------------------------
(d) APU: in respect of the APU, [*] ("APU Supplemental Rent Rate") for
--------------------------
each Flight Hour operated by the APU during that calendar month ("APU
---
Supplemental Rent"); and
-----------------
* CONFIDENTIAL TREATMENT REQUESTED
B-4
(e) Landing Gear: in respect of the Landing Gear, [*] ("Landing Gear
------------
Supplemental Rent Rate") for each Flight Hour operated by the Landing
----------------------
Gear during that calendar month ("Landing Gear Supplemental Rent").
------------------------------
PART VI MAINTENANCE AND RETURN CONDITION DEFINITIONS; MAINTENANCE PAYMENTS
AT REDELIVERY
DEFINITIONS:
Engine Cycles Restriction means [*] Engine Cycles.
Engine Flight Hours Restriction means [*] Engine Flight Hours.
[*]
* CONFIDENTIAL TREATMENT REQUESTED
B-5
[*]
Minimum Airframe Life Limited Component Cycles means [*] Cycles.
Minimum Airframe Life Limited Component Flight Hours means [*] Flight
Hours.
Minimum APU Limit means [*] Flight Hours.
* CONFIDENTIAL TREATMENT REQUESTED
B-6
Minimum Component Calendar Life means [*]
Minimum Engine Cycles means [*] Cycles.
Minimum Engine Flight Hours means [*] Flight Hours.
Minimum Hard Time Component Cycles means [*] Cycles.
Minimum Hard Time Component Flight Hours means [*] Flight Hours
Minimum Landing Gear Calendar Time means [*] months.
Minimum Landing Gear Cycles means [*] Cycles.
Minimum Landing Gear Flight Hours means [*] Flight Hours.
[*]
MAINTENANCE ADJUSTMENTS:
Maintenance Adjustment: In respect of each calendar month (or part thereof)
during the Term, Lessee will pay to Lessor at the end of the Term in accordance
with Section 5.4 of the Common Terms Agreement and Section 3.3 of this Agreement
the following Maintenance Adjustments:
[*]
* CONFIDENTIAL TREATMENT REQUESTED
B-7
[*]
PART VII SUBLEASE FEE
Sublease Fee means a non-refundable fee of [*] which shall be payable
by Lessee to Lessor upon receipt of an invoice for such amount to cover
Lessor's cost of evaluating the proposed subleasing arrangement, which
amount shall remain non-refundable whether or not Lessor consents to such
arrangement.
PART VIII
[*]
* CONFIDENTIAL TREATMENT REQUESTED
B-8
[*]
[*]
* CONFIDENTIAL TREATMENT REQUESTED
B-9
SCHEDULE C
Form of Modification Side Letter
September 10, 0000
Xxxxxx Xxxxxxxx Corporation
0000 Xxxxxx Xxxx, Xxxxx 0000
Xxxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Re: Modification Services to be performed by XX Xxxxxxxx, on behalf of Midway
Airlines Corporation ("Lessee"), for two Boeing 737-700 aircraft bearing
Manufacturer's Serial Number 30051 and 28613, respectively (together the
"Aircraft" and each an "Aircraft") being purchased by General Electric
Capital Corporation ("Lessor") and leased by Lessor to Lessee
Ladies and Gentlemen:
We refer to two Aircraft Lease Agreements, and one Common Terms Agreement
(collectively, the "Leases" and each a "Lease") each dated September 10, 1999
between Lessor as lessor, and Lessee, as lessee, relating to the Aircraft.
Capitalised terms used herein but not defined shall have the meanings ascribed
thereto in the Leases. This is the Modification Side Letter as defined in the
Leases.
Following Delivery of the Aircraft to Lessee, Lessee shall, with the assistance
of the Manufacturer and the Lessor, deliver the Aircraft to XX Xxxxxxxx in the
State of Washington (the "Location") for post-delivery modifications described
in Annex A hereto (the "Modifications") pursuant to an agreement between GE
Capital Aviation Services, Inc., as agent for Lessor ("GECAS"), and XX Xxxxxxxx
(the "Modification Agreement"). The Modifications to be performed by XX
Xxxxxxxx under the Modification Agreement have been ordered or procured by GECAS
solely at the request of Lessee.
For good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto hereby agree as follows:
[*]
2. Lessee shall ensure that its representative is available to accept the
satisfactory completion of the Modifications and/or any other relevant
services and/or works as and when required by the terms of the Modification
Agreement.
[*]
* CONFIDENTIAL TREATMENT REQUESTED
B-10
[*]
(c)Payments pursuant to this paragraph 3 shall be made to Lessor's account.
Lessor shall provide Lessee with invoices for such payments at least 5 days
prior to the due date for the relevant payment.
[*]
5. Nothing in this Side Letter shall be construed to modify the Lease.
[*]
7. GECAS shall be responsible for any breach of its obligations set forth
herein.
8. GECAS is authorized to designate any person or persons to carry out its
obligations under this Side Letter.
This letter shall be governed by and construed in accordance with New York law
and shall be incorporated by reference into each of the Leases.
* CONFIDENTIAL TREATMENT REQUESTED
B-11
Please confirm your agreement and acceptance of the terms of this letter by
countersigning below.
Yours faithfully
GE CAPITAL AVIATION SERVICES, INC.
as agent for Lessor
By: _________________________
Name: _________________________
Title: _________________________
Date: __ September , 1999
We hereby confirm and agree to be bound by the terms of this letter.
MIDWAY AIRLINES CORPORATION
By: _________________________
Name: _________________________
Title: _________________________
B-12
ANNEX A
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[*]
* CONFIDENTIAL TREATMENT REQUESTED
B-13
