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Exhibit
10.3
LOAN AND SECURITY
AGREEMENT
(aircraft)
Loan Number:
1000129301
This Agreement is dated as of
August 24, 2006 and is executed by and between CHASE
EQUIPMENT LEASING INC. (“Lender”), with Lender’s
principal office located at 1111 Polaris Parkway, Suite A3
(OH1-1085), Columbus, Ohio 43240 and the borrower identified below
(“Borrower”):
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| Borrower
Name: |
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ABX Air,
Inc. |
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| Borrower
Address: |
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145
Hunter Drive, Wilmington, Ohio 45177 |
1. GRANT OF SECURITY
INTEREST. Borrower grants, pledges and assigns to Lender a
security interest in all of Borrower’s respective right,
title and interest in and to the property described on the
attached Schedule A-1 , now or hereafter arising or
acquired, wherever located, together with any and all additions,
accessions, parts, accessories, substitutions and replacements
thereof, now or hereafter installed in, affixed to or used in
connection with said property (the “Equipment”), in all
proceeds thereof, cash and non-cash, including, but not limited to,
proceeds of notes, checks, instruments, indemnity proceeds, or any
insurance on such and any refund or rebate of premiums on such
(“Collateral”). This Agreement secures the prompt
payment and complete performance in full when due, whether at the
stated maturity, by acceleration or otherwise, of all payment and
other obligations of Borrower under or in connection with this
Agreement, the Business Purpose Promissory Note executed in
connection with the Loan Number referenced above with Borrower as
the maker (the “Note”), and any and all renewals,
extensions or substitutions for any such instrument, and also any
and all other liabilities of Borrower to Lender, or any affiliate
of either Lender or JPMORGAN CHASE & CO., direct or
indirect, absolute or contingent, due or to become due, now
existing or hereafter arising, and without limitation, all
indebtedness, leases, debts and liabilities (including principal,
interest, late charges, collection costs, attorney fees and the
like) (collectively, the “Obligations”). The absence of
any reference to this Agreement in any documents, instruments or
agreements evidencing or relating to any Obligations secured hereby
shall not limit or be construed to limit the scope of this
Agreement. While any Obligations are outstanding, Borrower is and
will continue to be (or, with respect to after acquired property,
will be when acquired) the legal and beneficial owner of the
Collateral free and clear of any Lien except for the security
interest created by this Agreement. No effective Uniform Commercial
Code (“UCC”) financing statement or other instrument
providing notice of a security interest in all or any part of the
Collateral is on file in any recording office, except those in
favor of Lender. At its sole expense, Borrower shall protect and
defend Lender’s first priority security interest in the
Collateral against all claims and demands whatsoever.
2. MAINTENANCE; USE
AND OPERATION; LOCATION .
2.1 At its sole expense,
Borrower shall: (a) repair and maintain the Equipment in good
condition and working order and supply and install all replacement
parts or other devices when required to so maintain the Equipment
or when required by applicable law or regulation, which parts or
devices shall automatically become part of the Equipment;
(b) use and operate the Equipment in a careful manner in the
normal course of its business and only for the purposes for which
it was designed in accordance with the manufacturer’s
warranty requirements, and comply with all laws and regulations
relating to the Equipment, and obtain all permits or licenses
necessary to install, use or operate the Equipment; (c) make
no alterations, additions, subtractions, upgrades or improvements
to the Equipment with a cost in excess of $150,000.00 without
Lender’s prior written consent (which consent will not be
unreasonably withheld), but any such alterations, additions,
upgrades or improvements shall automatically become part of the
Equipment; (d) maintain, inspect, service and repair, overhaul
and test the Equipment in accordance with the FAA approved
maintenance program, manufacturer’s approved maintenance
program, FAA airworthiness directives, and the manufacturer’s
alert bulletins and urgently recommended service bulletins and
procedures, and perform all duties and tasks which would be
required to maintain the Equipment, including the engines, in full
compliance with the manufacturer’s specification (i) so
as to keep the Equipment in as good operating condition as when
delivered to the Borrower hereunder, ordinary wear and tear
excepted, and (ii) so as to keep the Equipment in such
operating condition as may be necessary to enable the airworthiness
certification of such Equipment to be maintained in good standing
at all times under the Act (as defined in Section 19 hereof);
and (e) maintain all records, logs and other materials
required by the FAA to be maintained in respect of the Equipment.
Lender has the right upon reasonable notice to Borrower to inspect
the Equipment wherever located. Notwithstanding anything to the
contrary contained herein, Borrower may remove an Engine from the
Airframe and install an Engine on another airframe owned or leased
by Borrower provided that: (i) the Engine does not become
subject to any Lien (other than Lender’s security interest)
or claim of ownership; and (ii) Borrower installs a
Replacement Engine on the Airframe. “Airframe” means
the airframe described on the Schedule A-1 attached hereto.
“Engine” shall mean any one of the engines described on
the Schedule A-1 attached hereto. “Replacement Engine”
shall mean an engine of the same make and model (or an improved
model engine) as the Engine.
2.2 The Equipment will not be
operated, used or located outside of the United States of America
(“USA”) by Borrower or any other party; provided, that
Borrower may temporarily use, operate and locate the Equipment
outside the USA
(any country or jurisdiction other than
the USA hereinafter called a “Foreign Jurisdiction”) so
long as all of the following conditions are satisfied: (a) the
Geneva Convention on the International Recognition of Rights in
Aircraft together with the necessary enacting laws, rules and
regulations for such Geneva Convention (or some similar treaty,
laws and regulations) shall be in effect in any such Foreign
Jurisdiction; (b) any notices, statements, documents and
instruments necessary or required to be filed in any such Foreign
Jurisdiction for the operation, use or location of the Equipment
therein shall have been filed in accordance with applicable law and
regulation and Borrower shall provide file stamped copies to Lender
upon Lender’s request from time to time; (c) the
Equipment shall remain insured in accordance with the terms of this
Agreement at all times and shall be insured in accordance with the
laws and regulations of each Foreign Jurisdiction in or over which
the Equipment will be operated; (d) the Equipment will not be
registered under the laws of any Foreign Jurisdiction and shall
remain registered under the Act at all times; and (e) the
Equipment shall not be used, operated or located in any Foreign
Jurisdiction if at the time of such use, operation or location
(i) the insurance covering the Equipment would not permit the
use, operation or location of the Equipment in such Foreign
Jurisdiction or such use, operation or location would otherwise
void, result in the cancellation of, limit or diminish the coverage
provided by the applicable insurance policy, or (ii) any law,
regulation or presidential executive order of the USA prohibits the
use, operation or location of the Equipment in such Foreign
Jurisdiction, or (iii) there is any material risk of war
(declared or civil), of other hostilities or of confiscation,
seizure or detention of the Equipment in such Foreign Jurisdiction,
or (iv) the USA does not have diplomatic relations with such
Foreign Jurisdiction. The Equipment shall be hangered at the
location specified on Schedule A-1.
3. INSURANCE. At its
sole expense, Borrower at all times shall keep the Equipment
insured against all risks of loss or damage from every cause
whatsoever (including, without limitation, standard war risk
insurance coverage) for an amount not less than the greater of the
full replacement value of the Equipment or 102% of the outstanding
principal balance of the Note. All insurers shall be reasonably
satisfactory to Lender. Borrower shall deliver to Lender
satisfactory evidence of such coverage. Proceeds of any insurance
covering damage or loss of the Equipment shall be payable to Lender
as loss payee and shall be applied as set forth in Section 4
below. If an Event of Default occurs and is continuing, then
Borrower automatically appoints Lender as Borrower’s
attorney-in-fact with full power and authority in the place of
Borrower and in the name of Borrower or Lender to make claim for,
receive payment of, and sign and endorse all documents, checks or
drafts for loss or damage under any such policy. Each insurance
policy will require that the insurer give Lender at least 30 days
prior written notice of any cancellation of such policy and will
require that Lender’s interests remain insured regardless of
any act, error, omission, neglect or misrepresentation of Borrower.
The insurance maintained by Borrower shall be primary without any
right of contribution from insurance that may be maintained by
Lender.
4. LOSS OR DAMAGE.
Borrower bears the entire risk of loss, theft, damage or
destruction of Equipment in whole or in part from any reason
whatsoever (“Casualty Loss”). No Casualty Loss to
Equipment shall relieve Borrower from the obligation to pay the
installment payments or from any other obligation under this
Agreement. In the event of Casualty Loss to any item of Equipment,
Borrower shall immediately notify Lender of the same and Borrower
shall, if so directed by Lender, immediately repair the same. If
Lender determines that the Equipment has suffered a Casualty Loss
beyond repair or a Casualty Loss which substantially and
permanently reduces the fair market value of the Equipment
(“Lost Equipment”), then Borrower, at the option of
Lender, shall: (1) immediately replace the Lost Equipment with
similar equipment in good repair, condition and working order free
and clear of any Liens and deliver to Lender a bill of sale
covering the replacement equipment, in which event such replacement
equipment shall automatically be Equipment under this Agreement; or
(2) on the installment payment due date which is at least 30
but no more than 60 days after the date of the Casualty Loss
(“Loss Payment Due Date”), pay to Lender all accrued
and unpaid principal, interest, late charges and other amounts then
due and payable by Borrower under this Agreement or the Note plus
the remaining principal balance of the Note as of the Loss Payment
Due Date as determined by Lender’s records. Upon payment by
Borrower of all amounts due under the above clause (2), the
security interest of the Lender in the Lost Equipment will
terminate.
5. TAXES. Borrower
will pay promptly when due all taxes, assessments and governmental
charges upon or against Borrower, the Collateral or the property or
operations of Borrower, in each case before same becomes delinquent
and before penalties accrue thereon, unless and to the extent that
same are being contested in good faith by appropriate
proceedings.
6. GENERAL INDEMNITY.
Borrower assumes all risk and liability for, and shall defend,
indemnify and keep Lender harmless on an after-tax basis from, any
and all liabilities, obligations, losses, damages, penalties,
claims, actions, suits, costs and expenses, including reasonable
attorney fees and expenses, of whatsoever kind and nature imposed
on, incurred by or asserted against Lender, in any way relating to
or arising out of the manufacture, purchase, acceptance, rejection,
ownership, possession, use, selection, delivery, operation,
condition, sale, return or other disposition of the Equipment or
any part thereof (including, without limitation, any claim for
latent or other defects, whether or not discoverable by Borrower or
any other person, any claim for negligence, tort or strict
liability, any claim under any environmental protection or
hazardous waste law and any claim for patent, trademark or
copyright infringement). Borrower will not indemnify Lender under
this section for loss or liability caused by the gross negligence
or willful misconduct of Lender. In this section,
“Lender” also includes any director, officer, employee,
agent, successor or assign of Lender. Borrower’s obligations
under this section shall survive the expiration, cancellation or
termination of this Agreement.
7. PERSONAL PROPERTY.
Borrower represents and agrees that the Equipment is, and shall at
all times remain, separately identifiable personal property. Lender
may display notice of its interest in the Equipment by any
reasonable identification and Borrower shall not alter or deface
any such indicia of Lender’s interest.
8. FINANCIAL &
OTHER REPORTS. Borrower agrees to furnish to Lender:
(a) annual audited financial statements setting forth the
financial condition and results of operation of Borrower (financial
statements shall include balance sheet, income statement and
statement of cash flows and all notes and auditor’s report
thereto) within 90 days of the end of each fiscal year of Borrower;
(b) upon Lender’s request, quarterly financial
statements setting forth the financial condition and results of
operation of Borrower within 45 days of the end of each of the
first three fiscal quarters of Borrower; and (c) such other
financial information as Lender may from time to time reasonably
request including, without limitation, financial reports filed by
Borrower with federal or state regulatory agencies. All such
financial information shall be prepared in accordance with
generally accepted accounting principles on a basis consistently
applied. Borrower will promptly notify Lender in writing with full
details if any event occurs or any condition exists which
constitutes, or which but for a requirement of lapse of time or
giving of notice or both would constitute, an Event of Default
under this Agreement or which might materially and adversely affect
the financial condition or operations of Borrower or any affiliate
of Borrower. Borrower will promptly notify Lender in writing of the
commencement of any litigation to which Borrower or any of its
subsidiaries or affiliates may be a party (except for litigation in
which Borrower’s or the affiliate’s contingent
liability is fully covered by insurance) which, if decided
adversely to Borrower would materially adversely affect or impair
the security interest of Lender to the Equipment or which, if
decided adversely to Borrower would materially adversely affect the
business operations or financial condition of Borrower. Borrower
will immediately notify Lender, in writing, of any judgment against
Borrower if such judgment would have the effect described in the
preceding sentence.
9. NO CHANGES IN
BORROWER . Borrower shall not: (a) liquidate, dissolve or
suspend its business; (b) sell, transfer or otherwise dispose
of all or a majority of its assets, except that Borrower may sell
its inventory in the ordinary course of its business;
(c) enter into any merger, consolidation or similar
reorganization unless it is the surviving corporation;
(d) transfer all, or any substantial part of, its operations
or assets outside of the United States of America; or
(e) without 30 days advance written notice to Lender, change
its name, state of incorporation or organization, or chief place of
business. There shall be no transfer of more than a 25% ownership
interest in Borrower or any Guarantor (as defined in
Section 12 hereof) by shareholders, partners, members or
proprietors thereof in any calendar year without Lender’s
prior written consent. All financial covenants of Borrower and any
Guarantor under any Affiliate Credit Agreement (as defined in
Section 12 hereof) shall remain fully applicable to Borrower
and any Guarantor (as the case may be) and shall not be violated by
Borrower or any Guarantor (as the case may be) at any time. If for
any reason whatsoever an Affiliate Credit Agreement is canceled,
discharged or otherwise terminated and if no other Affiliate Credit
Agreement remains in effect as to Borrower or any Guarantor, then,
automatically and without any action by Lender or any other party,
all financial covenants which are in effect as of the date
immediately prior to the cancellation, discharge or termination of
such Affiliate Credit Agreement shall remain in full force and
effect, shall be incorporated in this Agreement by reference, and
shall be made a part of this Agreement.
10. REPRESENTATIONS.
Borrower represents and warrants that: (a) Borrower is a
corporation, limited liability company, partnership or
proprietorship as stated below Borrower’s signature duly
organized, validly existing and in good standing under the laws of
the state of its organization as stated below Borrower’s
signature and Borrower is qualified to do business and is in good
standing under the laws of each other state in which the Equipment
is or will be located; (b) Borrower’s name as set forth
at the outset of this Agreement is its complete and correct legal
name as indicated in the public records of Borrower’s state
of organization; (c) Borrower has full power, authority and
legal right to sign, deliver and perform this Agreement, the Note
and all related documents and such actions have been duly
authorized by all necessary corporate, company, partnership or
proprietorship action; (d) this Agreement, the Note and each
related document has been duly signed and delivered by Borrower and
each such document constitutes a legal, valid and binding
obligation of Borrower enforceable in accordance with its terms;
(e) there is no litigation or other proceeding pending, or to
the best of the Borrower’s knowledge, threatened against or
affecting Borrower which, if decided adversely to Borrower, would
adversely affect, impair or encumber the interest of Lender in the
Equipment or would materially adversely affect the business
operations or financial condition of Borrower; (f) all balance
sheets, income statements and other financial data that have been
delivered to Lender (or JPMorgan Chase Bank, N.A.) with respect to
Borrower are complete and correct in all material respects, fairly
present the financial condition of Borrower on the dates for which,
and the results of its operations for the periods for which, the
same have been furnished and have been prepared in accordance with
generally accepted accounting principles consistently applied,
(g) there has been no material adverse change in the condition
of Borrower, financial or otherwise, since the date of the most
recent financial statements delivered to Lender (or JPMorgan Chase
Bank, N.A.), (h) Borrower’s organizational number
assigned to Borrower by the state of its organization is correctly
stated below Borrower’s signature; (i) this Agreement
and the Note evidence a loan made primarily for business,
commercial or agricultural purposes and not primarily for personal,
family, or household purposes; (j) the Equipment is not, and
will not, be registered under the laws of any foreign country;
(k) the Equipment is, and shall remain at all times, eligible
for registration under the Act (as defined in Section 19
hereof); (l) the Equipment shall be based in, and primarily
used in, the United States all as required by the Act; and
(m) the Equipment will not be used in violation of any law,
regulation, ordinance or policy of insurance affecting the
maintenance, use or flight of the Equipment; and (n) Borrower
qualifies as a citizen of the United States as defined in the Act
and will continue to qualify as a United States citizen in all
respects.
11. OTHER DOCUMENTS;
EXPENSES; APPOINTMENT OF ATTORNEY-IN-FACT . Borrower agrees to
sign and deliver to Lender any additional documents deemed
desirable by Lender to effect the terms of the Note or this
Agreement including, without limitation, Uniform Commercial Code
financing statements and instruments to be filed with the Federal
Aviation Administration, all of which Lender is authorized to file
with the appropriate filing officers. Borrower hereby irrevocably
appoints Lender as Borrower’s attorney-in-fact with full
power and authority in the place of Borrower and in the name of
Borrower to prepare, sign, amend, file or record any Uniform
Commercial Code financing statements or other documents deemed
desirable by Lender to perfect, establish or give notice of
Lender’s interests in the Equipment or in any collateral as
to which Borrower has granted Lender a security interest. Borrower
agrees to sign and deliver to Lender any additional documents
deemed desirable by Lender to effect the terms of this Agreement.
Borrower shall pay upon Lender’s request any out-of-pocket
costs and expense paid or incurred by Lender in connection with the
above terms of this Agreement or the funding and closing of this
Agreement (including, without limitation, all out-of-pocket fees
and expenses of any outside counsel to Lender).
12. EVENTS OF DEFAULT.
Each of the following events shall constitute an Event of Default
under this Agreement and the Note: (a) Borrower fails to pay
any installment payment or other amount due under this Agreement or
the Note within 10 days of its due date; or (b) Borrower fails
to perform or observe any of its obligations in Sections 3, 9, or
18 hereof; or (c) Borrower fails to perform or observe any of
its other obligations in this Agreement or the Note within 30 days
after Lender notifies Borrower of such failure; or
(d) Borrower or any Guarantor fails to pay or perform or
observe any term, covenant (including, but not limited to, any
fin
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