EXHIBIT 10.78
OPTION AGREEMENT
dated as of December 6, 1999
in respect of
AIRCRAFT OPERATING LEASE AGREEMENTS
XX. 000, XX. 000, XX. 000 and NO. 114
each dated as of November 11, 1993
between
FIRST SECURITY BANK, N.A., formerly known as
FIRST SECURITY BANK OF UTAH, N.A.,
not in its individual capacity
but solely as owner trustee, as
Lessor
and
MIDWAY AIRLINES CORPORATION, as
Lessee
and
DEBIS AIRFINANCE B.V., as
Beneficial Owner.
Aircraft: Fokker 100 (F28 Mk 0100)
Serial Nos./RN: 11444/N103ML
(respectively) 11445/N104ML
11475/N105ML
11477/N106ML
Option Agreement (this "Agreement"), dated as of December 6, 1999, by and
between:
(1) debis AirFinance B.V., a company incorporated under the laws of The
Netherlands, having its principal place of business at Xxxxx van de
Xxxxxxxxxx 00, 0000 XX Xxxxxxxx Airport, The Netherlands ("debis AF");
(2) Midway Airlines Corporation, a company incorporated under the laws of the
State of Delaware, having its principal place of business at 0000 Xxxxxx
Xxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxx Xxxxxxxx 00000 ("Midway" or "Lessee");
and
(3) First Security Bank, N.A., formerly known as First Security Bank of Utah,
N.A., a national banking association existing pursuant to the laws of the
United States, having its principal place of business at 00 Xxxxx Xxxx
Xxxxxx, Xxxx Xxxx Xxxx, Xxxx 00000-0000, not in its individual capacity
(except as expressly set forth in the Leases) but solely as Owner Trustee
under the Trust Agreement ("Trustee" or "Lessor").
WHEREAS, debis AF is the beneficial owner of each of the four (4) aircraft
identified in Exhibit A attached hereto (each, an "Aircraft" and collectively,
the "Aircraft"), by virtue of its ownership of all the outstanding and issued
shares of the special purpose companies which are the owners of the Aircraft
identified by Serial Numbers 11445 and 11475 and otherwise by virtue of its
direct beneficial ownership of the Aircraft identified by Serial Numbers 11444
and 11477; and
WHEREAS, the Trustee and Midway are parties to those certain Aircraft Operating
Lease Agreements Xx. 000, Xx. 000, Xx. 000 and No. 114, each covering one of the
Aircraft and each dated as of November 11, 1993 (as amended from time to time,
each, a "Lease" and collectively, the "Leases"); and
WHEREAS, Midway wishes to purchase an option to terminate the Leases prior to
the current termination dates as provided in Exhibit B hereto;
NOW THEREFORE, in consideration of the mutual promises herein contained, the
parties hereto agree as follows:
1. Definitions
Terms which are capitalized but not defined herein shall have the
meaning ascribed to such terms in the Leases.
2. Payment for Option
In consideration of the irrevocable payment by Midway of the sum of
*** ******* ******* *************** receipt of which is hereby
acknowledged, and other good and valuable consideration, the Lessor
and debis AF hereby grant to Midway an irrevocable option to terminate
the Leases pursuant to the terms of the Lease Termination and
Compensation Agreement annexed hereto as Exhibit C (the "Termination
Agreement").
3. Exercise of Option
Midway may exercise this option at any time prior to March 1, 2000 by
signing and returning the Termination Agreement so that it is received
by debis AF no later than
* redacted
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March 1, 2000. Upon such execution and receipt, debis AF and Lessor
shall execute and return the same to Midway and the Termination
Agreement shall become a binding agreement between the parties
thereto.
4. Termination of Option
In the event that the option is not exercised as provided in Section 3
above, this Agreement shall become void and of no effect at midnight,
Eastern Standard Time (New York City) on March 1, 2000. In such
event, Lessor and/or debis AF may retain the Payment and shall have no
further obligations to Midway with respect to this Agreement or the
Payment.
5. Governing Law
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York and without regard to any
conflict of law rules. This Agreement is being delivered in the State
of New York.
6. Entire Agreement
This Agreement is the sole and entire agreement between the parties
hereto with respect to subject mater, supersedes all previous
agreements and shall not be varied otherwise than by an instrument in
writing executed by or on behalf of the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective officers thereunto duly authorized as of the day and year
first above written.
SIGNED on behalf of
FIRST SECURITY BANK, N.A. (formerly known as First Security Bank of Utah; N.A.),
not in its individual capacity but solely as owner trustee
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President
SIGNED on behalf of
MIDWAY AIRLINES CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President
General Counsel
SIGNED on behalf of
debis AirFinance B.V.
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Managing Director (CEO)
By: /s/ Xxxx XxXxxxx
Name: Xxxx XxXxxxx
Title: Senior Vice President - Commercial
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Draft - 12/1/99
Exhibit A
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Aircraft Aircraft Beneficial Owner
Manufacturer's Operation Lease
Serial Number Agreement Number
--------------------------------------------------------------------------------
11444 111 debis AirFinance B.V.
11445 112 American Aircraft
Finance I B.V.
11475 113 American Aircraft
Finance II B.V.
11477 114 debis AirFinance B.V.
--------------------------------------------------------------------------------
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Exhibit B
Revised Expiry Dates
February 1, 2001
March 1, 2001
May 1, 2001
June 1, 2001
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