-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, BhLa4pFsMBpf8ocF7NVdazs305i5IOtQaZs6GMXFa/Fqvuk+JRAKAEemXm0UgBxF BJbreZPVlroYqiddKkE7Qg== 0001047469-99-012799.txt : 19990402 0001047469-99-012799.hdr.sgml : 19990402 ACCESSION NUMBER: 0001047469-99-012799 CONFORMED SUBMISSION TYPE: 10-K PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 19981231 FILED AS OF DATE: 19990331 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AFG INVESTMENT TRUST D CENTRAL INDEX KEY: 0000879497 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-EQUIPMENT RENTAL & LEASING, NEC [7359] IRS NUMBER: 043157233 STATE OF INCORPORATION: MA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-K SEC ACT: SEC FILE NUMBER: 000-25648 FILM NUMBER: 99581483 BUSINESS ADDRESS: STREET 1: 98 N WASHINGTON ST CITY: BOSTON STATE: MA ZIP: 02114 BUSINESS PHONE: 6178545800 MAIL ADDRESS: STREET 1: 98 N WASHINGTON ST CITY: BOSTON STATE: MA ZIP: 02114 10-K 1 10-K UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-K (Mark One) [XX] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the fiscal year ended December 31, 1998 ------------------------------------------------------- OR [ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 [NO FEE REQUIRED] For the transition period from to -------------------- ------------------------- Commission file number 0-25648 --------------------------------------------------------- AFG Investment Trust D - -------------------------------------------------------------------------------- (Exact name of registrant as specified in its charter) Delaware 04-3157233 - ------------------------------------------ -------------------------------- (State or other jurisdiction of (IRS Employer incorporation or organization) Identification No.) 88 Broad Street, Sixth Floor, Boston, MA 02110 - ------------------------------------------ -------------------------------- (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code (617) 854-5800 ----------------------------- Securities registered pursuant to Section 12(b) of the Act NONE ---------------------- Title of each class Name of each exchange on which registered - --------------------------- ----------------------------------------------- - --------------------------- ----------------------------------------------- Securities registered pursuant to Section 12(g) of the Act: 2,089,030 Trust Class A Beneficiary Interests - -------------------------------------------------------------------------------- (Title of class) 3,142,083 Trust Class B Beneficiary Interests - -------------------------------------------------------------------------------- (Title of class) Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes XX No ------ ----- State the aggregate market value of the voting stock held by nonaffiliates of the registrant. Not applicable. Securities are nonvoting for this purpose. Refer to Item 12 for further information. DOCUMENTS INCORPORATED BY REFERENCE Portions of the Registrant's Annual Report to security holders for the year ended December 31, 1998 (Part I and II) AFG Investment Trust D FORM 10-K TABLE OF CONTENTS
Page ------ PART I Item 1. Business 3 Item 2. Properties 5 Item 3. Legal Proceedings 5 Item 4. Submission of Matters to a Vote of Security Holders 5 PART II Item 5. Market for the Trust's Securities and Related Security Holder Matters 6 Item 6. Selected Financial Data 7 Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations 7 Item 8. Financial Statements and Supplementary Data 8 Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure 8 PART III Item 10. Directors and Executive Officers of the Trust 9 Item 11. Executive Compensation 11 Item 12. Security Ownership of Certain Beneficial Owners and Management 11 Item 13. Certain Relationships and Related Transactions 12 PART IV Item 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K 15-16
2 PART I Item 1. Business. (a) General Development of Business AFG Investment Trust D (the "Trust") was organized as a Delaware business trust in accordance with the Delaware Business Trust Act on August 31, 1992 for the purpose of acquiring and leasing to third parties a diversified portfolio of capital equipment. Participants' capital initially consisted of contributions of $1,000 from the Managing Trustee, AFG ASIT Corporation, $1,000 from the Special Beneficiary, Equis Financial Group Limited Partnership (formerly known as American Finance Group), a Massachusetts limited partnership ("EFG"), and $100 from the Initial Beneficiary, AFG Assignor Corporation, a wholly-owned affiliate of EFG. The Trust issued an aggregate of 2,089,030 Beneficiary Interests (hereinafter referred to as Class A Interests) at a subscription price of $25.00 each ($52,225,750 in total) to 2,635 investors through 17 serial closings commencing October 26, 1993 and ending February 6, 1995. On July 18, 1997, the Trust issued 3,142,083 Class B Interests at $5.00 each ($15,710,415 in total), of which (i) 3,140,683 interests are held by Equis II Corporation, an affiliate of EFG, and (ii) 1,400 interests are held by 4 other Class A investors. The Trust repurchased 153,275 Class A Interests on October 10, 1997 using proceeds from the issuance of Class B Interests. On April 28, 1998, the Trust repurchased 1,000 additional Class A Interests. Accordingly, there are 1,934,755 Class A Interests currently outstanding. The Trust has one Managing Trustee, AFG ASIT Corporation, a Massachusetts corporation, and one Special Beneficiary, EFG. The Managing Trustee is responsible for the general management and business affairs of the Trust. EFG acts as Advisor to the Trust and provides services in connection with the acquisition and remarketing of the Trust's assets. AFG ASIT Corporation is a wholly-owned subsidiary of Equis II Corporation and an affiliate of EFG. Class A Interests and Class B Interests basically have identical voting rights and, therefore, Equis II Corporation has control over the Trust on all matters on which the Beneficiaries may vote. The Managing Trustee and the Special Beneficiary are not required to make any other capital contributions except as may be required under the Second Amended and Restated Declaration of Trust, as amended (the "Trust Agreement"). (b) Financial Information About Industry Segments Historically, the Trust has been engaged in only one industry segment: the business of acquiring capital equipment and leasing the equipment to creditworthy lessees on a full-payout or operating lease basis. Full-payout leases are those in which aggregate undiscounted, noncancellable rents equal or exceed the Purchase Price of the leased equipment. Operating leases are those in which the aggregate undiscounted, noncancellable rental payments are less than the Purchase Price of the leased equipment. In connection with the Solicitation Statement and consent of Beneficiaries (see Note 9 to the financial statements included in Item 14, herein), the prior Trust Agreement was modified to permit the Trust to invest in assets other than equipment. In the future, the Managing Trustee anticipates that the Trust will make new investments that have the potential to enhance the Trust's overall economic performance for the benefit of all of the Beneficiaries (see Note 12 to the financial statements included in Item 14, herein). Industry segment data is not applicable. (c) Narrative Description of Business The Trust was organized to acquire a diversified portfolio of capital equipment subject to various full-payout and operating leases and to lease the equipment to third parties as income-producing investments. More specifically, the Trust's primary investment objectives are to acquire and lease equipment which will: 1. Generate monthly cash distributions; 2. Preserve and protect Trust capital; and 3. Maximize residual value for ultimate sale. The Trust has the additional objective of providing certain federal income tax benefits. 3 Significant operations commenced coincident with the Trust's initial purchase of equipment and associated lease commitments on October 26, 1993. The acquisition of the equipment and its associated leases is described in detail in Note 3 to the financial statements included in Item 14, herein. Pursuant to the Trust Agreement, the Trust is scheduled to be dissolved by December 31, 2006. The Trust is a Nominal Defendant in a Class Action Lawsuit, the resolution of which remains pending. See Note 11 to the accompanying financial statements. The Trust has no employees; however, it entered into an Advisory Agreement with EFG. EFG's role, among other things, is to (i) evaluate, select, negotiate, and consummate the acquisition of equipment, (ii) manage the leasing, re-leasing, financing, and refinancing of equipment, and (iii) arrange the resale of equipment. The Advisor is compensated for such services as described in the Trust Agreement, Item 13 herein and in Note 4 to the financial statements included in Item 14, herein. The Trust's investment in equipment is, and will continue to be, subject to various risks, including physical deterioration, technological obsolescence and defaults by lessees. A principal business risk of owning and leasing equipment is the possibility that aggregate lease revenues and equipment sale proceeds will be insufficient to provide an acceptable rate of return on invested capital after payment of all debt service costs and operating expenses. In addition, the leasing industry is very competitive. The Trust is subject to considerable competition when equipment is re-leased or sold at the expiration of primary lease terms. The Trust must compete with lease programs offered directly by manufacturers and other equipment leasing companies, including business trusts and limited partnerships organized and managed similarly to the Trust and including other EFG-sponsored partnerships and trusts, which may seek to re-lease or sell equipment within their own portfolios to the same customers as the Trust. Many competitors have greater financial resources and more experience than the Trust, the Managing Trustee and the Advisor. In addition, default by a lessee under a lease agreement may cause equipment to be returned to the Trust at a time when the Managing Trustee or the Advisor is unable to arrange the sale or re-lease of such equipment. This could result in the loss of a portion of potential lease revenues and weaken the Trust's ability to repay related indebtedness. Revenue from major individual lessees which accounted for 10% or more of lease revenue during the years ended December 31, 1998, 1997 and 1996 is incorporated herein by reference to Note 2 to the financial statements in the 1998 Annual Report. Refer to Item 14(a)(3) for lease agreements filed with the Securities and Exchange Commission. The Trust Agreement originally provided for the reinvestment of Cash From Sales or Refinancings in additional equipment until February 6, 1999, a period of four years following the Final Closing. In connection with the Solicitation Statement and consent of Beneficiaries (see Note 9 to the financial statements included in Item 14 herein), the Trust's reinvestment provisions were extended through December 31, 2002 (see Note 4 to the financial statements included in Item 14 herein). In addition, the Trust is now permitted to invest in assets other than equipment (see Note 12 to the financial statements included in Item 14, herein). Upon the expiration of each primary lease term, the Managing Trustee will determine whether to sell or re-lease the Trust's equipment, depending on the economic advantages of each alternative. Over time, the Trust will begin to liquidate its portfolio of equipment. EFG is a Massachusetts limited partnership formerly known as American Finance Group ("AFG"). AFG was established in 1988 as a Massachusetts general partnership and succeeded American Finance Group, Inc., a Massachusetts corporation organized in 1980. EFG and its subsidiaries (collectively, the "Company") are engaged in various aspects of the equipment leasing business, including EFG's role as Equipment Manager or Advisor to the Trust and several other direct-participation equipment leasing programs sponsored or co-sponsored by EFG (the "Other Investment Programs"). The Company arranges to broker or originate equipment leases, acts as remarketing agent and asset manager, and provides leasing support services, such as billing, collecting, and asset tracking. The general partner of EFG, with a 1% controlling interest, is Equis Corporation, a Massachusetts corporation owned and controlled entirely by Gary D. Engle, its President, Chief Executive Officer and sole Director. Equis Corporation also owns a controlling 1% general partner interest in EFG's 99% limited partner, GDE Acquisition Limited Partnership ("GDE LP"). Equis Corporation and GDE LP were established in December 1994 by Mr. Engle for the sole purpose of acquiring the business of AFG. 4 In January 1996, the Company sold certain assets of AFG relating primarily to the business of originating new leases, and the name "American Finance Group," and its acronym, to a third party. AFG changed its name to Equis Financial Group Limited Partnership after the sale was concluded. Pursuant to terms of the sale agreements, EFG specifically reserved the rights to continue using the name American Finance Group and its acronym in connection with the Trust and the Other Investment Programs and to continue managing all assets owned by the Trust and the Other Investment Programs. (d) Financial Information About Foreign and Domestic Operations and Export Sales Not applicable. Item 2. Properties. Incorporated herein by reference to Note 3 to the financial statements in the 1998 Annual Report. Item 3. Legal Proceedings. Incorporated herein by reference to Note 11 to the Financial Statements in the 1998 Annual Report. Item 4. Submission of Matters to a Vote of Security Holders. None. 5 PART II Item 5. Market for the Trust's Securities and Related Security Holder Matters. (a) Market Information There is no public market for the resale of the Interests and it is not anticipated that a public market for resale of the Interests will develop. (b) Approximate Number of Security Holders At December 31, 1998, there were 2,086 record holders (2081 Class A Interests and 5 Class B Interests) in the Trust. (c) Dividend History and Restrictions Pursuant to Article VIII of the Trust Agreement, the amount of cash distributions to be declared and paid to the Beneficiaries is determined on a monthly basis. Each monthly distribution may vary in amount and the Managing Trustee may, in its sole discretion, restrict or suspend distributions if it believes such action to be in the best interests of the Trust. Each distribution is made 90.75% to the Class A and Class B Beneficiaries, 8.25% to the Special Beneficiary, and 1% to the Managing Trustee. Currently, there are no restrictions that materially limit the Trust's ability to make distributions or that the Trust believes are likely to materially limit future distributions. The Trust expects to continue to make distributions on a monthly basis. Distributable Cash From Operations and Distributable Cash From Sales or Refinancings ("Distributions") must be distributed within 45 days after the completion of each calendar month. Each Distribution is described in a statement sent to the Beneficiaries. Distributions, prior to Class B Payout (defined below), are allocated to the Class A and Class B Beneficiaries as follows: first, 100% to the Class A Beneficiaries up to $0.41 per Class A Interest; second, 100% to the Class B Beneficiaries up to $0.164 per Class B Interest, reduced by the Class B Distribution Reduction Factor (defined later herein); third, 100% to the Class A Beneficiaries up to an additional $0.215 per Class A Interest; and fourth, until Class B Payout has been attained, 80% to the Class B Beneficiaries and 20% to the Class A Beneficiaries. After Class B Payout, all further distributions will be made to the Class A Beneficiaries and the Class B Beneficiaries in amounts so that each Class A Beneficiary receives, with respect to each Class A Interest, an amount equal to 400%, divided by the difference between 100% and the Class B Distribution Reduction Factor, of the amount so distributed with respect to each Class B Interest. The Class B Distribution Reduction Factor means the percentage determined as a fraction, the numerator of which is the aggregate amount of any cash distributions paid to the Class B Beneficiaries as a return of their original capital contributions (on a per Class B Subordinated Interest basis), discounted at 8% per annum (commencing August 1, 1997, the first day of the month following the Class B Closing) and the denominator of which is $5.00. Distributions in 1998 and 1997 were as follows:
Managing Special Total Trustee Beneficiary Beneficiaries ------------- ------------- ------------ ------------- Total 1998 distributions Class A Interests $ 3,492,606 $ 34,926 $ 288,141 $ 3,169,539 Class B Interests 7,498,995 18,972 156,519 7,323,504 Total 1997 distributions Class A Interests 6,754,212 36,784 303,467 6,413,961 Class B Interests 1,031,855 10,319 85,128 936,408 ------------- ------------- ------------ ------------- Total $ 18,777,668 $ 101,001 $ 833,255 $ 17,843,412 ============= ============= ============ =============
6 Distributions payable at December 31, 1998 and 1997 were $417,939 and $480,436, respectively. "Distributable Cash From Operations" means the net cash provided by the Trust's normal operations after general expenses and current liabilities of the Trust are paid, reduced by any reserves for working capital and contingent liabilities to be funded from such cash, to the extent deemed reasonable by the Managing Trustee, and increased by any portion of such reserves deemed by the Managing Trustee not to be required for Trust operations and reduced by all accrued and unpaid Equipment Management Fees and, after Payout, further reduced by all accrued and unpaid Subordinated Remarketing Fees. Distributable Cash From Operations does not include any Distributable Cash From Sales or Refinancings. "Distributable Cash From Sales or Refinancings" means Cash From Sales or Refinancings as reduced by (i)(a) amounts reinvested in additional equipment in accordance with Sections 4.2(b)(v) and 4.2(b)(vi) of the Trust Agreement, or (b) the proceeds from the sale of an interest in a joint venture which are reinvested in additional equipment, (ii) any accrued and unpaid management fees and Acquisition Fees and Acquisition Expenses paid with respect to additional equipment acquired through reinvestment of Cash From Sales or Refinancings in accordance with Section 4.2(b)(v) of the Trust Agreement and (iii) after Payout, any accrued and unpaid Subordinated Resale Fees. "Cash From Sales or Refinancings" means cash received by the Trust from sale or refinancing transactions, as reduced by (i)(a) all debts and liabilities of the Trust required to be paid as a result of sale or refinancing transactions, whether or not then due and payable (including any liabilities on an item of equipment sold which are not assumed by the buyer and any remarketing fees required to be paid to persons not affiliated with the Managing Trustee, but not including any Subordinated Resale Fees whether or not then due and payable) and (b) general expenses and current liabilities of the Trust and (c) any reserves for working capital and contingent liabilities funded from such cash to the extent deemed reasonable by the Managing Trustee and (ii) increased by any portion of such reserves deemed by the Managing Trustee not to be required for Trust operations. In the event the Trust accepts a note in connection with any sale or refinancing transaction, all payments subsequently received in cash by the Trust with respect to such note shall be included in Cash From Sales or Refinancings, regardless of the treatment of such payments by the Trust for tax or accounting purposes. If the Trust receives purchase money obligations in payment for equipment sold, which are secured by liens on such equipment, the amount of such obligations shall not be included in Cash From Sales or Refinancings until the obligations are fully satisfied. Class A Payout means the first time when the aggregate amount of all distributions actually made to the Class A Beneficiaries equals $25 per Class A Interest (minus all uninvested capital contributions returned to the Class A Beneficiaries) plus a cumulative annual distribution of 10% compounded quarterly and calculated beginning with the last day of the month of the Trust's initial Class A Closing. Class B Payout means the first time when the aggregate amount of all distributions actually made to the Class B Beneficiaries equals $5 per Class B Interest plus a cumulative annual return of 8% per annum compounded quarterly with respect to capital contributions returned to them as a Class B Capital Distribution and 10% per annum, compounded quarterly, with respect to the balance of their capital contributions and calculated beginning August 1, 1997, the first day of the month following the Class B Closing. Item 6. Selected Financial Data. Incorporated herein by reference to the section entitled "Selected Financial Data" in the 1998 Annual Report. Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations. Incorporated herein by reference to the section entitled "Management's Discussion and Analysis of Financial Condition and Results of Operations" in the 1998 Annual Report. 7 Item 8. Financial Statements and Supplementary Data. Incorporated herein by reference to the financial statements and supplementary data included in the 1998 Annual Report. Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure. None. 8 PART III Item 10. Directors and Executive Officers of the Trust. (a-b) Identification of Directors and Executive Officers The Trust has no Directors or Officers. As indicated in Item 1 of this report, AFG ASIT Corporation is the Managing Trustee of the Trust. Under the Trust Agreement, the Managing Trustee is solely responsible for the operation of the Trust's properties and the Beneficiaries have no right to participate in the control of such operations. The names, titles and ages of the Directors and Executive Officers of the Managing Trustee as of March 15, 1999 are as follows: DIRECTORS AND EXECUTIVE OFFICERS OF THE MANAGING TRUSTEE (See Item 13)
Name Title Age Term - -------------------------------- ---------------------------------------- ----- ------------- Geoffrey A. MacDonald Chairman and a member of the Until a Executive Committee of EFG successor and President and a Director is duly of the Managing Trustee 50 elected and Gary D. Engle President and Chief Executive Officer qualified and a member of the Executive Committee of EFG and a Director of the Managing Trustee 50 Gary M. Romano Executive Vice President and Chief Operating Officer of EFG and Clerk of the Managing Trustee 39 Michael J. Butterfield Senior Vice President, Finance and Treasurer of EFG and Treasurer of the Managing Trustee 39 James A. Coyne Executive Vice President of EFG, Capital Markets and Senior Vice President of the Managing Trustee 38 Sandra L. Simonsen Senior Vice President, Information Systems of EFG 48 Gail D. Ofgant Senior Vice President, Lease Operations of EFG 33
(c) Identification of Certain Significant Persons None. (d) Family Relationship No family relationship exists among any of the foregoing Directors or Executive Officers. 9 (e) Business Experience Mr. MacDonald, age 50, is a co-founder, Chairman and a member of the Executive Committee of EFG and President and a Director of the Managing Trustee. Mr. MacDonald was also a co-founder, Director, and Senior Vice President of EFG's predecessor corporation from 1980 to 1988. Mr. MacDonald is President of American Finance Group Securities Corp. and a limited partner in Old North Capital Limited Partnership ("ONC"). Prior to co-founding EFG's predecessors, Mr. MacDonald held various executive and management positions in the leasing and pharmaceutical industries. Mr. MacDonald holds a M.B.A. from Boston College and a B.A. degree from the University of Massachusetts (Amherst). Mr. Engle, age 50, is President and Chief Executive Officer of EFG and sole shareholder and Director of its general partner, Equis Corporation and a member of the Executive Committee of EFG and President of AFG Realty Corporation. Mr. Engle joined EFG in 1990 as Executive Vice President and acquired control of EFG and its subsidiaries in December 1994. Mr. Engle is Vice President and a Director of certain of EFG's subsidiaries and affiliates, a limited partner in ONC and controls the general partner of ONC. From 1987 to 1990, Mr. Engle was a principal and co-founder of Cobb Partners Development, Inc., a real estate and mortgage banking company. From 1980 to 1987, Mr. Engle was Senior Vice President and Chief Financial Officer of Arvida Disney Company, a large-scale community development company owned by Walt Disney Company. Prior to 1980, Mr. Engle served in various management consulting and institutional brokerage capacities. Mr. Engle has a MBA from Harvard University and a BS degree from the University of Massachusetts (Amherst). Mr. Romano, age 39, became Executive Vice President and Chief Operating Officer of EFG, and Secretary of Equis Corporation in 1996 and is Secretary or Clerk of several of EFG's subsidiaries and affiliates. Mr. Romano joined EFG in November 1989, became Vice President and Controller in April 1993 and Chief Financial Officer in April 1995. Mr. Romano assumed his current position in April 1996. Prior to joining EFG, Mr. Romano was Assistant Controller for a privately held real estate development and mortgage origination company that he joined in 1987. Previously, Mr. Romano was an Audit Manager at Ernst & Whinney (now Ernst & Young LLP), where he was employed from 1982 to 1986. Mr. Romano is a Certified Public Accountant and holds a B.S. degree from Boston College. Mr. Coyne, age 38, is Executive Vice President, Capital Markets of EFG and President, Chief Operating Officer and a member of the Board of Directors of Semele. Mr. Coyne joined EFG in 1989, remained until May 1993, and rejoined EFG in November 1994. In September 1997, Mr. Coyne was appointed Executive Vice President of EFG. Mr. Coyne is a limited partner in ONC. From May 1993 through November 1994, he was employed by the Raymond Company, a private investment firm, where he was responsible for financing corporate and real estate acquisitions. From 1985 through 1989, Mr. Coyne was affiliated with a real estate investment company and an equipment leasing company. Prior to 1985, he was with the accounting firm of Ernst & Whinney (now Ernst & Young LLP). He has a BS in Business Administration from John Carroll University, a Masters Degree in Accounting from Case Western Reserve University and is a Certified Public Accountant. Mr. Butterfield, age 39, is Senior Vice President, Finance and Treasurer of EFG and certain of its affiliates and is Treasurer of the Managing Trustee and Semele. Mr. Butterfield joined EFG in June 1992, became Vice President, Finance and Treasurer of EFG and certain of it's affiliates in April 1996 and in July 1998, was promoted to Senior Vice President, Finance and Treasurer of EFG and certain of its affiliates. Prior to joining EFG, Mr. Butterfield was an Audit Manager with Ernst & Young LLP, which he joined in 1987. Mr. Butterfield was employed in public accounting and industry positions in New Zealand and London (UK) prior to coming to the United States in 1987. Mr. Butterfield attained his Associate Chartered Accountant (A.C.A.) professional qualification in New Zealand and has completed his CPA requirements in the United States. He holds a Bachelor of Commerce degree from the University of Otago, Dunedin, New Zealand. Ms. Simonsen, age 48, joined EFG in February 1990 and was promoted to Senior Vice President, Information Systems of EFG in April 1996. Prior to joining EFG, Ms. Simonsen was Vice President, Information Systems with Investors Mortgage Insurance Company, which she joined in 1973. Ms. Simonsen provided systems consulting for a subsidiary of American International Group and authored a software program published by IBM. Ms. Simonsen holds a BA degree from Wilson College. 10 Ms. Ofgant, age 33, is Senior Vice President, Lease Operations of EFG and certain of its affiliates. Ms. Ofgant joined EFG in July 1989, was promoted to Manager Lease Operations in April 1994, and became Vice President of Lease Operations in April 1996. In July 1998, Ms. Ofgant was promoted to Senior Vice President of Lease Operations. Prior to joining EFG, Ms. Ofgant was employed by Security Pacific National Trust Company. Ms. Ofgant holds a BS degree in Finance from Providence College. (f) Involvement in Certain Legal Proceedings None. (g) Promoters and Control Persons See Item 10 (a-b) above. Item 11. Executive Compensation. (a) Cash Compensation Currently, the Trust has no employees. However, under the terms of the Trust Agreement, the Trust is obligated to pay all costs of personnel employed full or part-time by the Trust, including officers or employees of the Managing Trustee or its Affiliates. There is no plan at the present time to make any officers or employees of the Managing Trustee or its Affiliates employees of the Trust. The Trust has not paid and does not propose to pay any options, warrants or rights to the officers or employees of the Managing Trustee or its Affiliates. (b) Compensation Pursuant to Plans None. (c) Other Compensation Although the Trust has no employees, as discussed in Item 11(a), pursuant to section 10.4(c) of the Trust Agreement, the Trust incurs a monthly charge for personnel costs of the Advisor for persons engaged in providing administrative services to the Trust. A description of the remuneration paid by the Trust to the Managing Trustee and its Affiliates for such services is included in Item 13, herein and in Note 4 to the financial statements included in Item 14, herein. (d) Compensation of Directors None. (e) Termination of Employment and Change of Control Arrangement There exists no remuneration plan or arrangement with the Managing Trustee or its Affiliates which results or may result from their resignation, retirement or any other termination. Item 12. Security Ownership of Certain Beneficial Owners and Management. By virtue of its organization as a trust, the Trust has no outstanding securities possessing traditional voting rights. However, as provided in Section 11.2(a) of the Trust Agreement (subject to Section 11.2(b)), a majority interest of the Beneficiaries have voting rights with respect to: 1. Amendment of the Trust Agreement; 2. Termination of the Trust; 3. Removal of the Managing Trustee; and 11 4. Approval or disapproval of the sale of all, or substantially all, of the assets of the Trust (except in the orderly liquidation of the Trust upon its termination and dissolution). As of March 1, 1999, the following person or group owns beneficially more than 5% of the Trust's outstanding Beneficiary interests:
Name and Amount Percent Title Address of of Beneficial of of Class Beneficial Owner Ownership Class - ---------------------------- ---------------------------- ------------------------ ------------- Interests Representing Equis II Corporation Class B Beneficiary 88 Broad Street 3,140,683 Interests 99.96% Boston, MA 02110
No person or group is known by the Managing Trustee to own beneficially more than 5% of the Trust's 1,934,755 outstanding Class A Interests as of March 1, 1999. Equis II Corporation is controlled by EFG's President and Chief Financial Officer, Gary D. Engle (see Item 10 and Item 13 of this report). The ownership and organization of EFG is described in Item 1 of this report. Item 13. Certain Relationships and Related Transactions. The Managing Trustee of the Trust is AFG ASIT Corporation, an affiliate of EFG. (a) Transactions with Management and Others All operating expenses incurred by the Trust are paid by EFG on behalf of the Trust and EFG is reimbursed at its actual cost for such expenditures. Fees and other costs incurred during the years ended December 31, 1998, 1997 and 1996, which were paid or accrued by the Trust to EFG or its Affiliates, are as follows: 1998 1997 1996 ------------ ------------ ------------ Equipment acquisition fees $ 5,227 $ 871,096 $ 36,120 Equipment management fees 886,096 895,643 1,071,560 Offering costs -- 157,104 -- Administrative charges 80,184 76,419 48,638 Reimbursable operating expenses due to third parties 543,699 596,354 527,519 ------------ ------------ ------------ Total $ 1,515,206 $ 2,596,616 $ 1,683,837 ============ ============ ============ EFG and its Affiliates were reimbursed for their out-of-pocket offering costs incurred on behalf of the Trust in an amount equal to 1% of the gross proceeds of the four trusts which sold Class B Interests, pursuant to the Registration Statement on Form S-1. The amount of reimbursement made by the Trust was prorated in proportion to the number of Beneficiary Interests sold in the Trust. As provided under the terms of the Trust Agreement, EFG is compensated for its services to the Trust. Such services include all aspects of acquisition, management and sale of equipment. For acquisition services, EFG was compensated by an amount equal to .28% of Asset Base Price paid by the Trust for each asset acquired for the Trust's initial asset portfolio. For reinvestment acquisitions completed prior to February 7, 1999, EFG is compensated by an amount equal to 3% of Asset Base Price paid by the Trust. In connection with the Solicitation Statement and consent of Beneficiaries (See Note 9 to the financial statements included in Item 14, herein), the Trust's reinvestment provisions, which were scheduled to expire on February 6, 1999, were extended through December 31, 2002. In addition, the Trust is now permitted to invest in assets other than equipment (See Note 12 to the financial statements included in Item 14, herein). Acquisition fees paid to EFG in connection with 12 reinvestment assets acquired after February 6, 1999, are equal to 1% of Asset Base Price paid by the Trust. For management services, EFG is compensated by an amount equal to (i) 5% of gross operating lease rental revenue and 2% of gross full payout lease rental revenue received by the Trust with respect assets acquired on or prior to February 6, 1999. For management services earned in connection with assets acquired on or after February 7, 1999, EFG is compensated by an amount equal to 2% of gross lease rental revenue received by the Trust. Both of these fees are subject to certain limitations defined in the Trust Agreement. For non-equipment investments other than cash, the Managing Trustee receives an annualized management fee of 1%. Compensation to EFG for services connected to the remarketing of equipment is calculated as the lesser of (i) 3% of gross sale proceeds or (ii) one-half of reasonable brokerage fees otherwise payable under arm's length circumstances. Payment of the remarketing fee is subordinated to Payout and is subject to certain limitations defined in the Trust Agreement. Administrative charges represent amounts owed to EFG, pursuant to Section 10.4(c) of the Trust Agreement, for persons employed by EFG who are engaged in providing administrative services to the Trust. Reimbursable operating expenses due to third parties represent costs paid by EFG on behalf of the Trust which are reimbursed to EFG at actual cost. All equipment was purchased from EFG, one of its Affiliates, or directly from third-party sellers. The Trust's Purchase Price is determined by the method described in Note 2 to the Trust's financial statements included in Item 14, herein. All rents and proceeds from the sale of equipment are paid by the lessee directly to either EFG or to a lender. EFG temporarily deposits collected funds in a separate interest-bearing escrow account prior to remittance to the Trust. At December 31, 1998, the Trust was owed $448,039 by EFG for such funds and the interest thereon. These funds were remitted to the Trust in January 1999. On July 18, 1997, the Trust issued 3,142,083 Class B Interests at $5.00 per interest, thereby generating $15,710,415 in aggregate Class B capital contributions. Class A Beneficiaries purchased 1,400 Class B Interests, generating $7,000 of such aggregate capital contributions, and the Special Beneficiary, EFG, purchased 3,140,683 of such Class B Interests, generating $15,703,415 of such aggregate capital contributions. The Trust incurred offering costs in the amount of $157,104 and professional service costs of $159,066 in connection with this offering. Subsequently, EFG transferred its Class B Interests to a special-purpose company, Equis II Corporation, a Delaware corporation. EFG also transferred its ownership of AFG ASIT Corporation, the Managing Trustee of the Trust, to Equis II Corporation. As a result, Equis II Corporation has voting control of the Trust through its ownership of the majority of the Trust's outstanding voting interests, as well as its ownership of AFG ASIT Corporation. Equis II Corporation is controlled by EFG's President and Chief Executive Officer, Gary D. Engle. Accordingly, control of the Managing Trustee did not change as a result of the foregoing transactions. During 1998, the Trust purchased limited partnership units (the "Units") in AFG International Limited Partnership (the "Partnership"), a real estate limited partnership sponsored by EFG that owns two commercial buildings leased to an investment grade educational institution. The Trust purchased 7.25 Units at a cost of $100,000 per unit for an aggregate purchase price of $725,000. As a result of the purchase of the Units, the Trust owns approximately 22.5% of the Partnership. The Trust accounts for its investment in the Partnership under the equity method of accounting. As such, the carrying value of the Trust's investment in the Partnership is increased or decreased by an amount equal to the Trust's share of the Partnership's income or losses, respectively, and decreased for any distributions received from the Partnership. At December 31, 1998, this investment had a carrying balance of $699,626 and is reflected as Investment - affiliate on the accompanying Statement of Financial Position included in Item 14, herein. Old North Capital Limited Partnership ("ONC"), a Massachusetts limited partnership formed in 1995 and an affiliate of EFG, owns 44,084 Class A Interests or 2.28% of the total outstanding Class A Interests of the Trust. The general partner of ONC is controlled by Gary D. Engle. In addition, the limited partnership interests of ONC are owned by Semele Group, Inc. ("Semele"). Gary D. Engle is Chairman and CEO of Semele. 13 (b) Certain Business Relationships None. (c) Indebtedness of Management to the Trust None. (d) Transactions with Promoters See Item 13(a) above. 14 PART IV Item 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K. (a) Documents filed as part of this report: (1) Financial Statements: Report of Independent Auditors................................* Statement of Financial Position at December 31, 1998 and 1997.................................* Statement of Operations for the years ended December 31, 1998, 1997 and 1996..........* Statement of Changes in Participants' Capital for the years ended December 31, 1998, 1997 and 1996 .........* Statement of Cash Flows for the years ended December 31, 1998, 1997 and 1996..........* Notes to the Financial Statements.............................* (2) Financial Statement Schedules: None required. (3) Exhibits: Except as set forth below, all Exhibits to Form 10-K, as set forth in Item 601 of Regulation S-K, are not applicable. Exhibit Number ---------- 4 Second Amended and Restated Declaration of Trust. 13 The 1998 Annual Report to security holders, a copy of which is furnished for the information of the Securities and Exchange Commission. Such Report, except for those portions thereof which are incorporated herein by reference, is not deemed "filed" with the Commission. 23 Consent of Independent Auditors. 99(a) Lease agreement with Scandinavian Airlines System is filed in the Registrant's Annual Report on Form 10-K for the year ended December 31, 1998 as Exhibit 99 (a) and is included herein. 99(b) Lease agreement with KGJS/Gearbulk Holding Limited is filed in the Registrant's Annual Report on Form 10-K for the year ended December 31, 1998 as Exhibit 99 (b) and is included herein. * Incorporated herein by reference to the appropriate portion of the 1998 Annual Report to security holders for the year ended December 31, 1998 (see Part II). 15 Exhibit Number ---------- 99(c) Lease agreement with Stena Bulk AB was filed in the Registrant's Annual Report on Form 10-K for the period ended December 31, 1993 as Exhibit 28 (c) and is incorporated herein by reference. 99(d) Lease agreement with Emery Worldwide was filed in the Registrant's Annual Report on Form 10-K for the year ended December 31, 1996 as Exhibit 99 (f) and is incorporated herein by reference. 99(e) Lease agreement with Chantel Shipping Corporation was filed in the Registrant's Annual Report on Form 10-K for the year ended December 31, 1996 as Exhibit 99 (g) and is incorporated herein by reference. (b) Reports on Form 8-K None. 16 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below on behalf of the registrant and in the capacity and on the date indicated. AFG Investment Trust D By: AFG ASIT Corporation, a Massachusetts corporation and the Managing Trustee of the Registrant. By: /s/ Geoffrey A. MacDonald By: /s/ Gary D. Engle ---------------------------------- ------------------------------ Geoffrey A. MacDonald Gary D. Engle Chairman and a member of the President and Chief Executive Executive Committee of EFG and Officer and a member of the President and a Director of the Executive Committee of EFG and a Managing Trustee Director of the Managing Trustee (Principal Executive Officer) Date: March 31, 1999 Date: March 31, 1999 ------------------------- ----------------------------- By: /s/ Gary M. Romano By: /s/ Michael J. Butterfield ---------------------------------- ------------------------------ Gary M. Romano Michael J. Butterfield Executive Vice President and Chief Senior Vice President, Finance and Operating Officer of EFG and Clerk Treasurer of EFG and Treasurer of the Managing Trustee of the Managing Trustee (Principal Financial Officer) (Principal Accounting Officer) Date: March 31, 1999 Date: March 31, 1999 ------------------------- ----------------------------- 17 EX-13 2 EXHIBIT 13 AFG INVESTMENT TRUST AFG Investment Trust D Annual Report to the Participants, December 31, 1998 AFG Investment Trust D INDEX TO ANNUAL REPORT TO THE PARTICIPANTS Page ------ SELECTED FINANCIAL DATA 2 MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS 3-8 FINANCIAL STATEMENTS: Report of Independent Auditors 9 Statement of Financial Position at December 31, 1998 and 1997 10 Statement of Operations for the years ended December 31, 1998, 1997 and 1996 11 Statement of Changes in Participants' Capital for the years ended December 31, 1998, 1997 and 1996 12 Statement of Cash Flows for the years ended December 31, 1998, 1997 and 1996 13 Notes to the Financial Statements 14-26 ADDITIONAL FINANCIAL INFORMATION: Schedule of Excess (Deficiency) of Total Cash Generated to Cost of Equipment Disposed 27 Statement of Cash and Distributable Cash From Operations, Sales and Refinancings 28 Schedule of Costs Reimbursed to the Managing Trustee and its Affiliates as Required by Section 10.4 of the Second Amended and Restated Declaration of Trust 29 SELECTED FINANCIAL DATA The following data should be read in conjunction with Management's Discussion and Analysis of Financial Condition and Results of Operations and the financial statements. For each of the five years in the period ended December 31, 1998:
Summary of Operations 1998 1997 1996 1995 1994 - --------------------------- ----------- ----------- ----------- ----------- ----------- Lease revenue $18,701,765 $19,427,577 $27,093,125 $17,068,315 $ 7,972,559 Net income $ 3,875,037 $ 2,017,457 $ 630,535 $ 3,629,331 $ 1,294,001 Per Beneficiary Interest: Net income Class A Interests $ 0.99 $ 0.68 $ 0.27 $ 1.59 $ 0.88 Class B Interests $ 0.29 $ -- $ -- $ -- $ -- Cash distributions Class A Interests $ 1.64 $ 3.11 $ 1.39 $ 2.10 $ 2.40 Class B Interests $ 2.33 $ 0.30 $ -- $ -- $ -- Financial Position - --------------------------- Total assets $ 78,517,976 $93,302,725 $75,192,549 $87,519,870 $57,613,787 Total long-term obligations $ 35,030,985 $43,102,250 $32,827,977 $42,655,805 $17,244,814 Participants' capital $ 41,937,651 $49,063,215 $40,884,836 $43,444,819 $39,294,051
2 MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS Year ended December 31, 1998 compared to the year ended December 31, 1997 and the year ended December 31, 1997 compared to the year ended December 31, 1996 Certain statements in this annual report of AFG Investment Trust D (the "Trust") that are not historical fact constitute "forward-looking statements" within the meaning of the Private Securities Litigation Reform Act of 1995 and are subject to a variety of risks and uncertainties. There are a number of important factors that could cause actual results to differ materially from those expressed in any forward-looking statements made herein. These factors include, but are not limited to, the outcome of the Class Action Lawsuit described in Note 11 to the accompanying financial statements, the collection all rents due under the Trust's lease agreements and remarketing of the Trust's equipment. Year 2000 Issue The Year 2000 Issue generally refers to the capacity of computer programming logic to correctly identify the calendar year. Many companies utilize computer programs or hardware with date sensitive software or embedded chips that could interpret dates ending in "00" as the year 1900 rather than the year 2000. In certain cases, such errors could result in system failures or miscalculations that disrupt the operations of the affected businesses. The Trust uses information systems provided by Equis Financial Group Limited Partnership (formerly American Finance Group) ("EFG") and has no information systems of its own. EFG has adopted a plan to address the Year 2000 Issue that consists of four phases: assessment, remediation, testing, and implementation and has elected to utilize principally internal resources to perform all phases. EFG completed substantially all of its Year 2000 project by December 31, 1998 at an aggregate cost of less than $50,000 and at a di minimus cost to the Trust. Remaining items are expected to be minor and be completed by March 31, 1999. All costs incurred in connection with EFG's Year 2000 project have been expensed as incurred. EFG's primary information software was coded by IBM at the point of original design to use a four digit field to identify calendar year. All of the Trust's lease billings, cash receipts and equipment remarketing processes are performed using this proprietary software. In addition, EFG has gathered information about the Year 2000 readiness of significant vendors and third party servicers and continues to monitor developments in this area. All of EFG's peripheral computer technologies, such as its network operating system and third-party software applications, including payroll, depreciation processing, and electronic banking, have been evaluated for potential programming changes and have required only minor modifications to function properly with respect to dates in the year 2000 and thereafter. EFG understands that each of its and the Trust's significant vendors and third-party servicers are in the process, or have completed the process, of making their systems Year 2000 compliant. Substantially all parties queried have indicated that their systems would be Year 2000 compliant by the end of 1998. Presently, EFG is not aware of any outside customer with a Year 2000 Issue that would have a material effect on the Trust's results of operations, liquidity, or financial position. The Trust's equipment leases were structured as triple net leases, meaning that the lessees are responsible for, among other things, (i) maintaining and servicing all equipment during the lease term, (ii) ensuring that all equipment functions properly and is returned in good condition, normal wear and tear excepted, and (iii) insuring the assets against casualty and other events of loss. Non-compliance with lease terms on the part of a lessee, including failure to address Year 2000 Issues, could result in lost revenues and impairment of residual values of the Trust's equipment assets under a worst-case scenario. EFG believes that its Year 2000 compliance plan will be effective in resolving all material Year 2000 risks in a timely manner and that the Year 2000 Issue will not pose significant operational problems with respect to its computer systems or result in a system failure or disruption of its or the Trust's business operations. However, EFG has no means of ensuring that all customers, vendors and third-party servicers will conform ultimately to Year 2000 standards. The effect of this risk to the Trust is not determinable. 3 Overview As an equipment leasing trust, the Trust was organized to acquire a diversified portfolio of capital equipment subject to lease agreements with third parties. The Trust was designed to progress through three principal phases: acquisitions, operations, and liquidation. During the operations phase, a period of approximately six years, all equipment in the Trust's portfolio will progress through various stages. Initially, all equipment will generate rental revenues under primary term lease agreements. During the life of the Trust, these agreements will expire on an intermittent basis and equipment held pursuant to the related leases will be renewed, re-leased or sold, depending on prevailing market conditions and the assessment of such conditions by EFG to obtain the most advantageous economic benefit. Over time, a greater portion of the Trust's original equipment portfolio will become available for remarketing and cash generated from operations and from sales or refinancings will fluctuate. Presently, the Trust is a Nominal Defendant in a Class Action Lawsuit, the resolution of which remains pending. See Note 11 to the accompanying financial statements. The Trust's operations commenced in 1992 and pursuant to the Trust Agreement, the Trust is scheduled to be dissolved by December 31, 2006. Results of Operations For the year ended December 31, 1998, the Trust recognized lease revenue of $18,701,765 compared to $19,427,577 and $27,093,125 for the years ended December 31, 1997 and 1996, respectively. The decrease in lease revenue from 1996 to 1998 was attributable principally to lease term expirations and the sale of equipment, including the Trust's sale of its interest in a vessel in 1996 and certain railroad equipment in 1997 (see discussions below). In the near-term, aggregate rental revenues are expected to increase due to reinvestment of available proceeds in other equipment. In addition, the level of lease revenue to be recognized by the Trust in the future is expected to be impacted by the amendment to the Trust Agreement described in Note 9 to the accompanying financial statements; however, the extent of such impact cannot be determined at this time. Over the long term, the level of lease revenue will decline due to the expiration of the Trust's lease term agreements. The Trust's equipment portfolio includes certain assets in which the Trust holds a proportionate ownership interest. In such cases, the remaining interests are owned by EFG or an affiliated equipment leasing program sponsored by EFG. Proportionate equipment ownership enables the Trust to further diversify its equipment portfolio by participating in the ownership of selected assets, thereby reducing the general levels of risk which could result from a concentration in any single equipment type, industry or lessee. The Trust and each affiliate individually report, in proportion to their respective ownership interests, their respective shares of assets, liabilities, revenues, and expenses associated with the equipment. Interest income in 1998 was $779,649, compared to $725,303 and $197,035 in 1997 and 1996, respectively. Generally, interest income is generated from the temporary investment of rental receipts and equipment sale proceeds in short-term instruments. Interest income in 1998 and 1997 includes interest earned on proceeds resulting from the issuance of Class B Interests (see below). Future interest income will fluctuate in relation to prevailing interest rates, the collection of lease revenue and the proceeds from equipment sales. For the year ended December 31, 1998, the Trust sold equipment having a net book value of $1,820,166 to existing lessees and third parties. These sales resulted in a net loss, for financial statement purposes, of $412,404. During the year ended December 31, 1997, the Trust sold equipment having a net book value of $6,431,659 to existing lessees and third parties resulting in a net loss, for financial statement purposes, of $1,038,989. These equipment sales included certain railroad equipment with an original cost and net book value of $6,513,773 and $5,488,323, respectively, which the Trust sold to a third party in September 1997. In connection with this sale, the Trust realized sale proceeds of $2,000,000 and the purchaser assumed related debt and interest of $2,624,639 and $13,998, respectively, which resulted in a net loss, for financial statement purposes, of $849,685. This equipment was sold prior to the expiration of the related lease term. During the year ended December 31, 1996, the Trust sold equipment having a net book value of $7,388,546 to existing lessees and third parties. These sales resulted in a net loss, for financial statement purposes, of 4 $5,149,874. The equipment sales in 1996 included the Trust's interest in a vessel with an original cost and net book value of $9,296,103 and $6,482,211, respectively, which the Trust sold to an existing lessee in December 1996. In connection with this sale, the Trust realized aggregate cash proceeds of $6,835,834, consisting of early termination proceeds of $5,217,665 and sale proceeds of $1,618,169. For financial statement purposes, the Trust recognized a net loss of $4,864,042, excluding early termination proceeds recognized as lease revenue on the accompanying Statement of Operations in 1996. The equipment was sold prior to the expiration of the related lease term. The Trust reinvested these proceeds, net of associated debt, in other equipment during 1997. It cannot be determined whether future sales of equipment will result in a net gain or a net loss to the Trust, as such transactions will be dependent upon the condition and type of equipment being sold and its marketability at the time of sale. In addition, the amount of gain or loss reported for financial statement purposes is partly a function of the amount of accumulated depreciation associated with the equipment being sold. The ultimate realization of residual value for any type of equipment is dependent upon many factors, including EFG's ability to sell and re-lease equipment. Changing market conditions, industry trends, technological advances, and many other events can converge to enhance or detract from asset values at any given time. EFG attempts to monitor these changes in order to identify opportunities which may be advantageous to the Trust and which will maximize total cash returns for each asset. The total economic value realized upon final disposition of each asset is comprised of all primary lease term revenue generated from that asset, together with its residual value. The latter consists of cash proceeds realized upon the asset's sale in addition to all other cash receipts obtained from renting the asset on a re-lease, renewal or month-to-month basis. The Trust classifies such residual rental payments as lease revenue. Consequently, the amount of gain or loss reported in the financial statements is not necessarily indicative of the total residual value the Trust achieved from leasing the equipment. Depreciation and amortization expense was $10,234,690, $12,486,537 and $13,981,912 for the years ended December 31, 1998, 1997 and 1996, respectively. For financial reporting purposes, to the extent that an asset is held on primary lease term, the Trust depreciates the difference between (i) the cost of the asset and (ii) the estimated residual value of the asset on a straight-line basis over such term. For purposes of this policy, estimated residual values represent estimates of equipment values at the date of primary lease expiration. To the extent that an asset is held beyond its primary lease term, the Trust continues to depreciate the remaining net book value of the asset on a straight-line basis over the asset's remaining economic life. The Trust recorded a write-down of the carrying value of its interest in a Boeing 747 aircraft, representing an impairment, during the year ended December 31, 1996. The resulting charge, $2,400,000 ($1.04 per Beneficiary Interest) in 1996 was based on a comparison of the estimated net realizable value and corresponding net carrying value for the Trust's interest in the aircraft. Net realizable value was estimated based on (i) third-party appraisals of the Trust's aircraft and (ii) EFG's assessment of prevailing market conditions for similar aircraft. Interest expense was $3,449,304 or 18.4% of lease revenue in 1998, $3,041,481 or 15.7% of lease revenue in 1997 and $3,480,122 or 12.8% of lease revenue in 1996. The increase in interest expense from 1997 to 1998 is the result of indebtedness obtained in connection with reinvestment equipment. Interest expense in the near-term may increase due to the financing of any newly acquired assets. Thereafter, interest expense will decline in amount and as a percentage of lease revenue as the principal balance of notes payable is reduced through the application of rent receipts to outstanding indebtedness. Management fees were 4.7%, 4.6% and 4% of lease revenue for the years ended December 31, 1998, 1997 and 1996, respectively. Management fees are based on 5% of gross lease revenue generated by operating leases and 2% of gross lease revenue generated by full payout leases. Operating expenses consist principally of administrative charges, professional service costs, such as audit and legal fees, as well as printing, distribution and remarketing expenses. Operating expenses were $623,883, $672,773 and $576,157 during the years ended December 31, 1998, 1997, and 1996, respectively. During 1998, the Trust incurred or accrued approximately $290,000 for certain legal expenses related to the Class Action Lawsuit described in Note 11 to the financial statements. Additionally, operating expenses in 1998 include professional service costs incurred in connection with the Solicitation Statement described in Note 9 to the 5 financial statements. The increase in operating expenses from 1996 to 1997 was due primarily to costs incurred in connection with the Solicitation and Registration Statements described in Note 7 to the accompanying financial statements. Liquidity and Capital Resources and Discussion of Cash Flows The Trust by its nature is a limited life entity. As an equipment leasing program, the Trust's principal operating activities derive from asset rental transactions. Accordingly, the Trust's principal source of cash from operations is provided by the collection of periodic rents. These cash inflows are used to satisfy debt service obligations associated with leveraged leases, and to pay management fees and operating costs. Operating activities generated net cash inflows of $17,885,461 during the year ended December 31, 1998. Such cash inflows reflect cash previously held in escrow of $3,017,318. For the year ended December 31, 1997, operating activities generated net cash inflows of $12,983,604, adjusted to reflect (i) equipment sale proceeds of $1,618,169 received in connection with the sale of a vessel and (ii) debt proceeds of $1,980,073 from leveraging certain rail equipment, both of which amounts were due from EFG at December 31, 1996 and reflected as cash inflows on the accompanying 1997 Statement of Cash Flows. Operating activities generated net cash inflows of $21,519,290 (adjusted for such sale and debt proceeds) for the year ended December 31, 1996. Cash inflows generated from operating activities during 1996 included the receipt of early termination proceeds of $5,217,665. In the future, operating cash flows may increase due to the acquisition of reinvestment equipment or other new investments not consisting of equipment. Subsequently, renewal, re-lease and equipment sale activities will cause the Trust's primary-term lease revenue and corresponding sources of operating cash to decline. Overall, expenses associated with rental activities, such as management fees, and net cash flow from operating activities will decline as the Trust experiences a higher frequency of remarketing events. The Trust's equipment is leased by a number of creditworthy, investment-grade companies and, to date, the Trust has not experienced any material collection problems and has not considered it necessary to provide an allowance for doubtful accounts. Notwithstanding a positive collection history, there is no assurance that all future contracted rents will be collected or that the credit quality of the Trust's lessees will be maintained. Collection risk could increase in the future, particularly as the Trust remarkets its equipment and enters re-lease agreements with different lessees. The Managing Trustee will continue to evaluate and monitor the Trust's experience in collecting accounts receivable to determine whether a future allowance for doubtful accounts may become appropriate. Cash expended for equipment acquisitions and cash realized from asset disposal transactions are reported under investing activities on the accompanying Statement of Cash Flows. The Trust expended $179,510, $30,271,673 and $1,243,539 to acquire equipment during the years ended December 31, 1998, 1997 and 1996, respectively. All of the equipment acquisitions were purchased pursuant to the reinvestment provisions of the Trust Agreement. Acquisitions during the year ended December 31, 1997 include the Trusts 49.4% proportionate ownership interest in a Boeing 767-300 ER aircraft leased to Scandinavian Airlines System (the "SAS Aircraft"). The SAS Aircraft was purchased in August 1997 using cash of $5,124,103 and indebtedness of $25,042,248. During 1998, the Trust realized net sale proceeds of $1,407,762, compared to $2,754,033 and $2,238,672 in 1997 and 1996, respectively. Sale proceeds in 1997 and 1996 include $2,000,000 from the rail transaction and $1,618,169 from the vessel transaction noted previously. Future inflows of cash from asset disposals will vary in timing and amount and will be influenced by many factors including, but not limited to, the frequency and timing of lease expirations, the type of equipment being sold, its condition and age, and future market conditions. In addition, the Trust's investment in an affiliated limited partnership is reported under investing activities during the year ended December 31, 1998 (see Note 4 to the accompanying financial statements). The Trust obtained long-term financing in connection with certain equipment leases. The origination of such indebtedness and the subsequent repayments of principal are reported as components of financing activities. Cash inflows of $25,042,248 and $9,862,477 in 1997 and 1996, respectively, resulted from leveraging a portion of the Trust's equipment portfolio with third-party lenders (see Results of Operations). Each note payable is recourse only to the specific equipment financed and to the minimum rental payments contracted to be received during the debt amortization period (which period generally coincides with the lease rental term). As rental payments are collected, a portion or all of the rental payment is used to repay the associated indebtedness. In future years, the amount of cash used to repay debt obligations will decline as the principal balance of notes payable is reduced 6 through the collection and application of rents. Notwithstanding the foregoing, the Trust has balloon payment obligations of $19,980,682, $1,400,074 and $282,421 at the expiration of the lease terms related to the SAS Aircraft, certain rail equipment and the Trust's interest in an MD-87 jet aircraft leased by Reno Air, Inc., respectively. During 1998, SAS exercised its option to extend the term of its existing lease for a period of two years at a base rent to the Trust of $295,314 per month, beginning December 30, 1998. As a result of SAS exercising the renewal lease option, the balloon payment has been postponed until the termination of the two-year extension period. The Trust entered into a 1-year renewal lease agreement with British Airways PLC for its proportionate interest in a Boeing 747 aircraft at a base rent to the Trust of $82,500 per month, beginning October 29, 1998. In accordance with the Trust Agreement, upon the dissolution of the Trust, the Managing Trustee will be required to contribute to the Trust an amount equal to any negative balance which may exist in the Managing Trustee's tax capital account. At December 31, 1998, the Managing Trustee had a negative tax capital account balance of $303,603. At December 31, 1998, the Trust was due aggregate future minimum lease payments of $28,104,361 from contractual lease agreements (see Note 2 to the financial statements), a portion of which will be used to amortize the principal balance of notes payable of $35,030,985 (see Note 5 to the financial statements and discussion above). Additional cash inflows will be realized from future remarketing activities, such as lease renewals and equipment sales, as well as from lease revenues generated by equipment acquisitions from the Trust's reinvestment activities. The Trust expects to acquire additional reinvestment equipment or other new investments (See Note 12) using on-hand cash and additional indebtedness. The extent of the Trust's total future reinvestment activities will be influenced in part by future equipment sales; the timing and extent of which cannot be predicted with certainty. This is because the timing and extent of equipment sales is often dependent upon the needs and interests of the existing lessees. Some lessees may choose to renew their lease contracts, while others may elect to return the equipment. In the latter instances, the equipment could be re-leased to another lessee or sold to a third party. Accordingly, as the Trust matures and a greater level of its equipment assets becomes available for remarketing, the cash flows of the Trust will become less predictable. In addition, the Trust will have cash needs to satisfy interest on indebtedness and to pay management fees and operating expenses. Ultimately, the Trust is expected to meet its future disbursement obligations and to distribute any excess of cash inflows over cash outflows to the Participants in accordance with the Trust Agreement. However, several factors, including month-to-month lease extensions, lessee defaults, equipment casualty events, and early lease terminations could alter the Trust's anticipated cash flows as described herein and in the accompanying financial statements and result in fluctuations to the Trust's periodic cash distribution payments. On July 18, 1997, the Trust issued 3,142,083 Class B Interests at $5.00 per interest, thereby generating $15,710,415 in aggregate Class B capital contributions. Class A Beneficiaries purchased 1,400 Class B Interests, generating $7,000 of such aggregate capital contributions, and the Special Beneficiary, EFG, purchased 3,140,683 Class B Interests, generating $15,703,415 of such aggregate capital contributions. The Trust incurred offering costs in the amount of $157,104 and professional service costs of $159,066 in connection with this offering. Subsequently, EFG transferred its Class B Interests to a special-purpose company, Equis II Corporation, a Delaware corporation. EFG also transferred its ownership of AFG ASIT Corporation, the Managing Trustee of the Trust, to Equis II Corporation. As a result, Equis II Corporation has voting control of the Trust through its ownership of the majority of the Trust's outstanding voting interests, as well as its ownership of AFG ASIT Corporation. Equis II Corporation is controlled by EFG's President and Chief Executive Officer, Gary D. Engle. Accordingly, control of the Managing Trustee did not change as a result of the foregoing transactions (see also Note 7 to the accompanying financial statements). As described in the Prospectus for the offering of the Class B Interests, the Managing Trustee used a portion of the net cash proceeds realized from the offering of the Class B Interests to pay a one-time special cash distribution of approximately $1.47 per Class A Interest to the Class A Beneficiaries of the Trust. The Managing Trustee declared and paid this special cash distribution, aggregating $3,075,818, to Class A Beneficiaries on August 15, 1997. On August 7, 1997, the Trust commenced an offer to purchase up to 45% of the outstanding Class A Beneficiary Interests of the Trust. On October 10, 1997, the Trust used $1,606,322 of the net proceeds realized 7 from the issuance of the Class B Interests to purchase 153,275 of the Class A Interests tendered as a result of the offer. On July 6, 1998, the Trust used $5,601,790 of such proceeds to pay a capital distribution to the Class B Beneficiaries. The remaining net proceeds from the Class B offering of $5,110,315 will be used according to terms negotiated in connection with settling the Class Action Lawsuit described in Note 11 (see also Notes 8, 9 and 10 to the accompanying financial statements). On April 28, 1998, the Trust purchased 1,000 additional Class A Interests at a cost of $9,000. Cash distributions paid to the Beneficiaries consist of both a return of and a return on capital. Cash distributions do not represent and are not indicative of yield on investment. Actual yield on investment cannot be determined with any certainty until conclusion of the Trust and will be dependent upon the collection of all future contracted rents, the generation of renewal and/or re-lease rents, and the residual value realized for each asset at its disposal date. Future market conditions, technological changes, the ability of EFG to manage and remarket the assets, and many other events and circumstances, could enhance or detract from individual asset yields and the collective performance of the Trust's equipment portfolio. It is the intention of the Managing Trustee to maintain a cash distribution level that is consistent with the operating cash flows of the Trust and to optimize the long-term value of the Trust. A distribution level that is higher than the Trust's operating cash flows could compromise the Trust's working capital position, as well as its ability to refurbish or upgrade equipment in response to lessee requirements or other market circumstances and, during its reinvestment period, to purchase replacement equipment as original equipment is remarketed. Accordingly, in order to better align monthly cash distributions with the Trust's operating cash flows, the Managing Trustee reduced the level of monthly cash distributions from an annualized rate of $2.52 per Class A Interest (the rate established and paid from the Trust's inception through September 1995) to an annualized rate of $1.26 per Class A Interest commencing in October 1995. In October 1996, the Managing Trustee increased the annualized distribution rate to $1.64 per Class A Interest and has sustained this distribution rate throughout 1997 and 1998. For the Class B Beneficiaries, the Managing Trustee established and paid, from the Trust, an annualized distribution of $0.66 per Class B Beneficiary commencing July 18, 1997. Future distributions, with respect to Class B Interests, will be subordinate to certain distributions with respect to Class A Interests. Cash distributions to the Managing Trustee, the Special Beneficiary and the Beneficiaries are declared and generally paid within fifteen days following the end of each calendar month. The payment of such distributions is presented as a component of financing activities. For the year ended December 31, 1998, the Trust declared total cash distributions of Distributable Cash From Operations of $10,991,601. Of the total distributions, the Beneficiaries were allocated $10,493,043 ($3,169,539 to Class A Beneficiaries and $7,323,504 to Class B Beneficiaries); the Special Beneficiary was allocated $444,660; and the Managing Trustee was allocated $53,898. The nature of the Trust's operations and principal cash flows gradually will shift from rental receipts to equipment sale proceeds as the Trust matures and change as a result of new investments not consisting of equipment acquisitions. As this occurs, the Trust's cash flows resulting from equipment investments may become more volatile in that certain of the Trust's equipment leases will be renewed and certain of its assets will be sold. In some cases, the Trust may be required to expend funds to refurbish or otherwise improve the equipment being remarketed in order to make it more desirable to a potential lessee or purchaser. The Trust's Advisor, EFG, and the Managing Trustee will attempt to monitor and manage these events in order to maximize the residual value of the Trust's equipment and will consider these factors, in addition to new investment activities and the collection of contractual rents, the retirement of scheduled indebtedness, and the Trust's future working capital requirements, in establishing future cash distribution rates. 8 REPORT OF INDEPENDENT AUDITORS To the Participants of AFG Investment Trust D: We have audited the accompanying statements of financial position of AFG Investment Trust D as of December 31, 1998 and 1997, and the related statements of operations, changes in participants' capital, and cash flows for each of the three years in the period ended December 31, 1998. These financial statements are the responsibility of the Trust's management. Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits in accordance with generally accepted auditing standards. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of AFG Investment Trust D at December 31, 1998 and 1997, and the results of its operations and its cash flows for each of the three years in the period ended December 31, 1998, in conformity with generally accepted accounting principles. Our audits were conducted for the purpose of forming an opinion on the basic financial statements taken as a whole. The Additional Financial Information identified in the Index to Annual Report to the Participants is presented for purposes of additional analysis and is not a required part of the basic financial statements. Such information has been subjected to the auditing procedures applied in our audits of the basic financial statements and, in our opinion, is fairly stated in all material respects in relation to the basic financial statements taken as a whole. ERNST & YOUNG LLP Boston, Massachusetts March 26, 1999 9 AFG Investment Trust D STATEMENT OF FINANCIAL POSITION December 31, 1998 and 1997
ASSETS 1998 1997 - ------ ----------------- ------------------- Cash and cash equivalents $ 9,100,016 $ 4,218,502 Restricted cash 5,110,315 10,712,105 Cash held in escrow -- 3,017,318 Rents receivable 2,322,608 2,133,873 Accounts receivable - affiliate 448,039 508,209 Investment - affiliate 699,626 -- Equipment at cost, net of accumulated depreciation of $45,307,297 and $38,811,298 at December 31, 1998 and 1997, respectively 60,837,372 72,711,968 Organization costs, net of accumulated amortization of $5,000 and $4,250 at December 31, 1998 and 1997, respectively -- 750 ----------------- ------------------- Total assets $ 78,517,976 $ 93,302,725 ================= =================== LIABILITIES AND PARTICIPANTS' CAPITAL Notes payable $ 35,030,985 $ 43,102,250 Accrued interest 332,001 492,620 Accrued liabilities 321,500 11,550 Accrued liabilities - affiliate 69,248 113,323 Deferred rental income 408,652 39,331 Cash distributions payable to participants 417,939 480,436 ----------------- ------------------- Total liabilities 36,580,325 44,239,510 ----------------- ------------------- Participants' capital (deficit): Managing Trustee 12,140 (45,553) Special Beneficiary 100,157 (379,308) Class A Beneficiary Interests (1,934,755 and 1,935,755 Interests at December 31, 1998 and 1997, respectively, initial purchase price of $25 each) 35,230,782 36,477,495 Class B Beneficiary Interests (3,142,083 Interests; initial purchase price of $5 each) 8,209,894 14,616,903 Treasury Interests (154,275 and 153,275 Class A Interests at December 31, 1998 and 1997, respectively, at Cost) (1,615,322) (1,606,322) ----------------- ------------------- Total participants' capital 41,937,651 49,063,215 ----------------- ------------------- Total liabilities and participants' capital $ 78,517,976 $ 93,302,725 ================= ===================
The accompanying notes are an integral part of these financial statements. 10 AFG Investment Trust D STATEMENT OF OPERATIONS for the years ended December 31, 1998, 1997 and 1996
1998 1997 1996 ------------------ ------------------ ------------------ Income: Lease revenue $ 18,701,765 $ 19,427,577 $ 27,093,125 Interest income 779,649 725,303 197,035 Loss on sale of equipment (412,404) (1,038,989) (5,149,874) ------------------ ------------------ ------------------ Total income 19,069,010 19,113,891 22,140,286 ------------------ ------------------ ------------------ Expenses: Depreciation and amortization 10,234,690 12,486,537 13,981,912 Write-down of equipment -- -- 2,400,000 Interest expense 3,449,304 3,041,481 3,480,122 Equipment management fees - affiliate 886,096 895,643 1,071,560 Operating expenses - affiliate 623,883 672,773 576,157 ------------------ ------------------ ------------------ Total expenses 15,193,973 17,096,434 21,509,751 ------------------ ------------------ ------------------ Net income $ 3,875,037 $ 2,017,457 $ 630,535 ================== ================== ================== Net income per Class A Beneficiary Interest $ 0.99 $ 0.68 $ 0.27 ================== ================== ================== per Class B Beneficiary Interest $ 0.29 $ -- $ -- ================== ================== ================== Cash distributions declared per Class A Beneficiary Interest $ 1.64 $ 3.11 $ 1.39 ================== ================== ================== per Class B Beneficiary Interest $ 2.33 $ 0.30 $ -- ================== ================== ==================
The accompanying notes are an integral part of these financial statements. 11 AFG Investment Trust D STATEMENT OF CHANGES IN PARTICIPANTS' CAPITAL for the years ended December 31, 1998, 1997 and 1996
Managing Special Class A Beneficiaries Trustee Beneficiary -------------------------------- Amount Amount Interests Amount ------------- ------------- -------------- --------------- Balance at December 31, 1995 $ (37,265) $ (314,685) 2,089,030 $ 43,796,769 Net income - 1996 6,305 52,019 -- 572,211 Cash distributions declared (31,905) (263,218) -- (2,895,395) ------------- ------------- -------------- --------------- Balance at December 31, 1996 (62,865) (525,884) 2,089,030 41,473,585 Class B capital contribution -- -- -- -- Less: Offering costs -- -- -- -- Net income - 1997 64,415 535,171 -- 1,417,871 Cash distributions declared (47,103) (388,595) -- (6,413,961) Acquisition of treasury interests, at cost -- -- (153,275) -- ------------- ------------- -------------- --------------- Balance at December 31, 1997 (45,553) (379,308) 1,935,755 36,477,495 Net income - 1998 111,591 924,125 -- 1,922,826 Cash distributions declared (53,898) (444,660) -- (3,169,539) Acquisition of treasury interests, at cost -- -- (1,000) -- ------------- ------------- -------------- --------------- Balance at December 31, 1998 $ 12,140 $ 100,157 1,934,755 $ 35,230,782 ============= ============= ============= ===============
Class B Beneficiaries -------------------------------- Treasury Interests Amount Interests Total -------------- --------------- -------------- --------------- Balance at December 31, 1995 -- $ -- $ -- $ 43,444,819 Net income - 1996 -- -- -- 630,535 Cash distributions declared -- -- -- (3,190,518) -------------- --------------- -------------- --------------- Balance at December 31, 1996 -- -- -- 40,884,836 Class B capital contribution 3,142,083 15,710,415 -- 15,710,415 Less: Offering costs -- (157,104) -- (157,104) Net income - 1997 -- -- -- 2,017,457 Cash distributions declared -- (936,408) -- (7,786,067) Acquisition of treasury interests, at cost -- -- (1,606,322) (1,606,322) -------------- --------------- -------------- --------------- Balance at December 31, 1997 3,142,083 14,616,903 (1,606,322) 49,063,215 Net income - 1998 -- 916,495 -- 3,875,037 Cash distributions declared -- (7,323,504) -- (10,991,601) Acquisition of treasury interests, at cost -- -- (9,000) (9,000) -------------- --------------- -------------- --------------- Balance at December 31, 1998 3,142,083 $ 8,209,894 $ (1,615,322) $ 41,937,651 ============== =============== ============== ===============
The accompanying notes are an integral part of these financial statements. 12 AFG Investment Trust D STATEMENT OF CASH FLOWS for the years ended December 31, 1998, 1997 and 1996
1998 1997 1996 ---------------- ---------------- ---------------- Cash flows from (used in) operating activities: Net income $ 3,875,037 $ 2,017,457 $ 630,535 Adjustments to reconcile net income to net cash from operating activities: Depreciation and amortization 10,234,690 12,486,537 13,981,912 Write-down of equipment -- -- 2,400,000 Loss on sale of equipment 412,404 1,038,989 5,149,874 Changes in assets and liabilities: Decrease (increase) in: Cash held in escrow 3,017,318 (3,017,318) -- Rents receivable (188,735) 1,213,433 (493,145) Accounts receivable - affiliate 60,170 3,337,446 (3,736,104) Increase (decrease) in: Accrued interest (160,619) (220,569) 49,842 Accrued liabilities 309,950 (11,700) (20,601) Accrued liabilities - affiliate (44,075) (100,924) 116,659 Deferred rental income 369,321 (161,505) (157,924) ---------------- ---------------- ---------------- Net cash from operating activities 17,885,461 16,581,846 17,921,048 ---------------- ---------------- ---------------- Cash flows from (used in) investing activities: Purchase of equipment (179,510) (30,271,673) (1,243,539) Proceeds from equipment sales 1,407,762 2,754,033 2,238,672 Investment - affiliate (699,626) -- -- ---------------- ---------------- ---------------- Net cash from (used in) investing activities 528,626 (27,517,640) 995,133 ---------------- ---------------- ---------------- Cash flows from (used in) financing activities: Proceeds from capital contributions -- 15,710,415 -- Payment of organization and offering costs -- (157,104) -- Restricted cash 5,601,790 (10,712,105) -- Purchase of treasury interests (9,000) (1,606,322) -- Proceeds from notes payable -- 25,042,248 9,862,477 Principal payments - notes payable (8,071,265) (12,143,336) (19,690,305) Distributions paid (11,054,098) (7,619,847) (3,118,004) ---------------- ---------------- ---------------- Net cash from (used in) financing activities (13,532,573) 8,513,949 (12,945,832) ---------------- ---------------- ---------------- Net increase (decrease) in cash and cash equivalents 4,881,514 (2,421,845) 5,970,349 Cash and cash equivalents at beginning of year 4,218,502 6,640,347 669,998 ---------------- ---------------- ---------------- Cash and cash equivalents at end of year $ 9,100,016 $ 4,218,502 $ 6,640,347 ================ ================ ================ Supplemental disclosure of cash flow information: Cash paid during the year for interest $ 3,609,923 $ 3,262,050 $ 3,430,280 ================ ================ ================
Supplemental schedule of non-cash investing and financing activities: During 1997, the Trust sold equipment to third parties which assumed related debt and interest of $2,624,639 and 13,998, respectively. The accompanying notes are an integral part of these financial statements. 13 AFG Investment Trust D Notes to the Financial Statements December 31, 1998 NOTE 1 - ORGANIZATION AND TRUST MATTERS AFG Investment Trust D (the "Trust") was organized as a Delaware business trust in accordance with the Delaware Business Trust Act on August 31, 1992 for the purpose of acquiring and leasing to third parties a diversified portfolio of capital equipment. Participants' capital initially consisted of contributions of $1,000 from the Managing Trustee, AFG ASIT Corporation, $1,000 from the Special Beneficiary, Equis Financial Group Limited Partnership (formerly known as American Finance Group), a Massachusetts limited partnership ("EFG"), and $100 from the Initial Beneficiary, AFG Assignor Corporation, a wholly-owned affiliate of EFG. The Trust issued an aggregate of 2,089,030 Beneficiary Interests (hereinafter referred to as Class A Interests) at a subscription price of $25.00 each ($52,225,750 in total) to 2,635 investors through 17 serial closings commencing October 26, 1993 and ending February 6, 1995. On July 18, 1997, the Trust issued 3,142,083 Class B Interests at $5.00 each ($15,710,415 in total), of which (i) 3,140,683 interests are held by Equis II Corporation, an affiliate of EFG, and (ii) 1,400 interests are held by 4 other Class A investors. The Trust repurchased 153,275 Class A Interests on October 10, 1997 using proceeds from the issuance of Class B Interests. On April 28, 1998, the Trust repurchased 1,000 additional Class A Interests. Accordingly, there are 1,934,755 Class A Interests currently outstanding. The Trust has one Managing Trustee, AFG ASIT Corporation, a Massachusetts corporation, and one Special Beneficiary, EFG. The Managing Trustee is responsible for the general management and business affairs of the Trust. EFG acts as Advisor to the Trust and provides services in connection with the acquisition and remarketing of the Trust's assets. AFG ASIT Corporation is a wholly-owned subsidiary of Equis II Corporation and an affiliate of EFG. Class A Interests and Class B Interests basically have identical voting rights and, therefore, Equis II Corporation has control over the Trust on all matters on which the Beneficiaries may vote. The Managing Trustee and the Special Beneficiary are not required to make any other capital contributions except as may be required under the Second Amended and Restated Declaration of Trust, as amended (the "Trust Agreement"). Significant operations commenced coincident with the Trust's initial purchase of equipment and the associated lease commitments on October 26, 1993. Pursuant to the Trust Agreement, each distribution of Distributable Cash From Operations and Distributable Cash From Sales or Refinancings of the Trust is made 90.75% to the Beneficiaries, 8.25% to the Special Beneficiary and 1% to the Managing Trustee. Under the terms of the Management Agreement between the Trust and EFG, management services are provided by EFG to the Trust at fees which the Managing Trustee believes to be competitive for similar services (see Note 4). EFG is a Massachusetts limited partnership formerly known as American Finance Group ("AFG"). AFG was established in 1988 as a Massachusetts general partnership and succeeded American Finance Group, Inc., a Massachusetts corporation organized in 1980. EFG and its subsidiaries (collectively, the "Company") are engaged in various aspects of the equipment leasing business, including EFG's role as Equipment Manager or Advisor to the Trust and several other direct-participation equipment leasing programs sponsored or co-sponsored by EFG (the "Other Investment Programs"). The Company arranges to broker or originate equipment leases, acts as remarketing agent and asset manager, and provides leasing support services, such as billing, collecting, and asset tracking. The general partner of EFG, with a 1% controlling interest, is Equis Corporation, a Massachusetts corporation owned and controlled entirely by Gary D. Engle, its President, Chief Executive Officer and sole Director. Equis Corporation also owns a controlling 1% general partner interest in EFG's 99% limited partner, GDE Acquisition Limited Partnership ("GDE LP"). Equis Corporation and GDE LP were established in December 1994 by Mr. Engle for the sole purpose of acquiring the business of AFG. 14 AFG Investment Trust D Notes to the Financial Statements (Continued) In January 1996, the Company sold certain assets of AFG relating primarily to the business of originating new leases, and the name "American Finance Group," and its acronym, to a third party. AFG changed its name to Equis Financial Group Limited Partnership after the sale was concluded. Pursuant to terms of the sale agreements, EFG specifically reserved the rights to continue using the name American Finance Group and its acronym in connection with the Trust and the Other Investment Programs and to continue managing all assets owned by the Trust and the Other Investment Programs. NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES Statement of Cash Flows and Restricted Cash The Trust considers liquid investment instruments purchased with a maturity of three months or less to be cash equivalents. From time to time, the Trust invests excess cash with large institutional banks in federal agency discount notes and reverse repurchase agreements with overnight maturities. Under the terms of the agreements, title to the underlying securities passes to the Trust. The securities underlying the agreements are book entry securities. At December 31, 1998, the Trust had $11,576,000 invested in federal agency discount notes and reverse repurchase agreements secured by U.S. Treasury Bills or interests in U.S. Government securities. Such cash includes $5,110,315 which is classified as Restricted Cash and represents the net proceeds realized from the offering of the Class B Interests less ( i ) the portion thereof used to pay a special distribution to the Class A Beneficiaries and to redeem Class A Interests (see Notes 7 and 8) and ( ii ) the portion thereof used to pay a capital distribution to the Class B Beneficiaries (see Note 10). The remainder is expected to be used according to terms negotiated in conjunction with settling the Class Action Lawsuit described in Note 11. Revenue Recognition Rents are payable to the Trust monthly, quarterly or semi-annually and no significant amounts are calculated on factors other than the passage of time. The leases are accounted for as operating leases and are noncancellable. Rents received prior to their due dates are deferred. In certain instances, the Trust may enter primary-term, renewal or re-lease agreements which expire beyond the Trust's anticipated dissolution date. This circumstance is not expected to prevent the orderly wind-up of the Trust's business activities as the Managing Trustee and the Advisor would seek to sell the then-remaining equipment assets either to the lessee or to a third party, taking into consideration the amount of future non-cancelable rental payments associated with the attendant lease agreements. Future minimum rents of $28,104,361 are due as follows: For the year ending December 31, 1999 $ 13,553,671 2000 9,200,620 2001 3,185,832 2002 2,162,062 2003 2,176 -------------- Total $ 28,104,361 ============= Revenue from major individual lessees which accounted for 10% or more of lease revenue during the years ended December 31, 1998, 1997 and 1996 is as follows:
1998 1997 1996 ------------------ ------------------ ------------------ Scandinavian Airlines System $ 4,054,613 $ -- $ -- Emery Worldwide $ 2,409,224 $ 2,409,224 $ -- KGJS/Gearbulk Holding Limited $ 2,297,772 $ -- $ -- Chantel Shipping Corporation $ -- $ 2,310,614 $ -- Stena Bulk AB $ -- $ -- $ 6,959,077
15 AFG Investment Trust D Notes to the Financial Statements (Continued) During 1998, Scandinavian Airlines System ("SAS") exercised its option to extend the term of its existing lease for a period of two years at a base rent to the Trust of $295,314 per month, beginning December 30, 1998. As a result of SAS exercising the renewal lease option, the balloon payment (originally due at the end of the primary lease term) has been postponed until the termination of the two-year extension period. The Trust entered into a 1-year renewal lease agreement with British Airways PLC for its proportionate interest in a Boeing 747 aircraft at a base rent to the Trust of $82,500 per month, beginning October 29, 1998. Use of Estimates The preparation of the financial statements in conformity with generally accepted accounting principles requires the use of estimates and assumptions that affect the amounts reported in the financial statements and accompanying notes. Actual results could differ from those estimates. Equipment on Lease All equipment was acquired from EFG, one of its Affiliates or from third-party sellers. Equipment Cost means the actual cost paid by the Trust to acquire the equipment, including acquisition fees. Where equipment was acquired from EFG or an Affiliate, Equipment Cost reflects the actual price paid for the equipment by EFG or the Affiliate plus all actual costs incurred by EFG or the Affiliate while carrying the equipment, including all liens and encumbrances, less the amount of all primary term rents earned by EFG or the Affiliate prior to selling the equipment. Where the seller of the equipment was a third party, Equipment Cost reflects the seller's invoice price. Depreciation and Amortization The Trust's depreciation policy is intended to allocate the cost of equipment over the period during which it produces economic benefit. The principal period of economic benefit is considered to correspond to each asset's primary lease term, which term generally represents the period of greatest revenue potential for each asset. Accordingly, to the extent that an asset is held on primary lease term, the Trust depreciates the difference between (i) the cost of the asset and (ii) the estimated residual value of the asset on a straight-line basis over such term. For purposes of this policy, estimated residual values represent estimates of equipment values at the date of primary lease expiration. To the extent that an asset is held beyond its primary lease term, the Trust continues to depreciate the remaining net book value of the asset on a straight-line basis over the asset's remaining economic life. Periodically, the Managing Trustee evaluates the net carrying value of equipment to determine whether it exceeds estimated net realizable value. For purposes of this comparison, "net carrying value" represents, at a given date, the net book value (equipment cost less accumulated depreciation for financial reporting purposes) of the Trust's equipment and "net realizable value" represents, at the same date, the aggregate undiscounted cash flows resulting from future contracted lease payments plus the estimated residual value of the Trust's equipment. The Managing Trustee evaluates significant equipment assets, such as aircraft and vessels, individually. All other assets are evaluated collectively by equipment type unless the Managing Trustee learns of specific circumstances, such as a lessee default, technological obsolescence, or other market developments, which could affect the net realizable value of particular assets. Adjustments to reduce the net carrying value of equipment are recorded in those instances where estimated net realizable value is considered to be less than net carrying value. To the extent that such adjustments were recorded, they are reflected separately on the accompanying Statement of Operations as Write-Down of Equipment. The ultimate realization of residual value for any type of equipment is dependent upon many factors, including EFG's ability to sell and re-lease equipment. Changing market conditions, industry trends, technological advances, and many other events can converge to enhance or detract from asset values at any given time. EFG attempts to monitor these changes in order to identify opportunities which may be advantageous to the Trust and which will maximize total cash returns for each asset. Organization costs were amortized using the straight-line method over a period of five years. 16 AFG Investment Trust D Notes to the Financial Statements (Continued) Accrued Liabilities - Affiliate Unpaid fees and operating expenses paid by EFG on behalf of the Trust and accrued but unpaid administrative charges and management fees are reported as Accrued Liabilities - Affiliate (See Note 4). Allocation of Net Income or Loss Net income is allocated quarterly first, to eliminate any Participant's negative capital account balance and second, 1% to the Managing Trustee, 8.25% to the Special Beneficiary and 90.75% collectively to the Class A and Class B Beneficiaries. The latter is allocated proportionately between the Class A and Class B Beneficiaries based upon the ratio of cash distributions declared and allocated to the Class A and Class B Beneficiaries during the period (excluding $5,601,790 Class B capital distributions paid in 1998). Net losses are allocated quarterly first, to eliminate any positive capital account balance of the Managing Trustee, the Special Beneficiary and the Class B Beneficiaries; second, to eliminate any positive capital account balances of the Class A Beneficiaries; and third, any remainder to the Managing Trustee. Prior to adoption of the current Trust Agreement on July 15, 1997 (see Note 7), the Trust allocated net income or loss to the Participants for financial reporting purposes according to their respective beneficial interests in the Trust (1% to the Managing Trustee, 8.25% to the Special Beneficiary, and 90.75% to the Class A Beneficiaries). The allocation of net income or loss pursuant to the Trust Agreement differs from the foregoing and is based upon government rules and regulations for federal income tax reporting purposes and assumes, for each income tax reporting period, the liquidation of all of the Trust's assets and the subsequent distribution of all available cash to the Participants. For income tax purposes, the Trust adjusts its allocations of income and loss to the Participants so as to cause their tax capital account balances at the end of the reporting period to be equal to the amount that would be distributed to them at such date in the event of a liquidation and dissolution of the Trust. This methodology does not consider the costs attendant to liquidation or whether the Trust intends to have future business operations. If the Trust made similar assumptions and allocations for financial reporting purposes and the Trust was liquidated at December 31, 1998 for an amount equal to its net carrying value for financial reporting purposes, the capital accounts of the Managing Trustee, Special Beneficiary, Class A Beneficiaries, and Class B Beneficiaries would have reflected ending balances of $419,377, $3,459,856, $25,148,782, and $12,909,636, respectively. See Note 6 for additional information concerning the allocation of net income or loss for income tax reporting purposes. Net Income and Cash Distributions Per Beneficiary Interest Net income and cash distributions per Class A Interest in 1998 are based on 1,935,755 Class A Interests outstanding during the period January 1, 1998 through April 27, 1998 and 1,934,755 Class A Interests outstanding during the period April 28, 1998 through December 31, 1998. Net income and cash distributions per Class A Interest in 1997 are based on 2,089,030 Class A Interests outstanding during the period January 1, 1997 through October 9, 1997 and 1,935,755 Class A Interests outstanding during the period October 10, 1997 through December 31, 1997. Net income and cash distributions per Class A Interest are based on 2,089,030 Class A Interests outstanding during the year ended December 31, 1996. Net income and cash distributions per Class B Interest are based on 3,142,083 Class B Interests outstanding during the year ended December 31, 1998 and the period July 18, 1997 through December 31, 1997. For each of the aforementioned periods, net income and cash distributions per Beneficiary Interest are computed after allocation of the Managing Trustee's and Special Beneficiary's shares of net income and cash distributions. Provision for Income Taxes No provision or benefit from income taxes is included in the accompanying financial statements. The Participants are responsible for reporting their proportionate shares of the Trust's taxable income or loss and other tax attributes on their tax returns. 17 AFG Investment Trust D Notes to the Financial Statements (Continued) NOTE 3 - EQUIPMENT The following is a summary of equipment owned by the Trust at December 31, 1998. Remaining Lease Term (Months), as used below, represents the number of months remaining from December 31, 1998 under contracted lease terms and is presented as a range when more than one lease agreement is contained in the stated equipment category. A Remaining Lease Term equal to zero reflects equipment either held for sale or re-lease or being leased on a month-to-month basis. In the opinion of EFG, the acquisition cost of the equipment did not exceed its fair market value.
Remaining Lease Term Equipment Equipment Type (Months) at Cost Location - ----------------------------------- -------------- ----------------- -------------------------------- Aircraft 10-48 $ 52,946,296 NV/OH/Foreign Vessels 45 13,875,360 Foreign Locomotives 18 10,684,643 IL/NB 5,904,498 FL/IL/KY/MI/NC/NV/OK/PA/VA/ Construction and mining 0-42 Foreign Materials handling 0-53 5,294,425 AK/CA/CO/GA/IN/IL/IO/MI/MN/MS/ NC/NJ/NY/OH/OR/TN/TX/WV/WI Retail store fixtures 0-12 4,926,665 AZ/CO/NM/TX Manufacturing 0-12 3,849,469 CA/NJ Computers and peripherals 0-19 3,788,572 CA/CO/FL/GA/IL/IN/KS/KY/MD/MI/ MN/ME/NC/NE/NJ/NY/OH/OK/ OR/PA/SC/TN/TX/VA/WI/WV Foreign Miscellaneous 0-23 3,564,207 FL/LA/NC/TX Tractors and heavy duty trucks 0-3 545,117 NJ/TX Research and test 6-15 501,012 MI/WI Trailers/intermodal containers 0 187,461 OH Motor vehicles 0 38,499 MI Photocopying 3 31,913 WI Communications 0 6,532 CA ----------------- Total equipment cost 106,144,669 Accumulated depreciation (45,307,297) ----------------- Equipment, net of accumulated depreciation $ 60,837,372 =================
In certain cases, the cost of the Trust's equipment represents a proportionate ownership interest. The remaining interests are owned by EFG or an affiliated equipment leasing program sponsored by EFG. The Trust and each affiliate individually report, in proportion to their respective ownership interests, their respective shares of assets, liabilities, revenues, and expenses associated with the equipment. Proportionate equipment ownership enables the Trust to further diversify its equipment portfolio by participating in the ownership of selected assets, thereby reducing the general levels of risk which could result from a concentration in any single equipment type, industry or lessee. At December 31, 1998, the Trust's equipment portfolio included equipment having a proportionate original cost of $43,065,716, representing approximately 41% of total equipment cost. Certain of the equipment and related lease payment streams were used to secure term loans with third-party lenders. The preceding summary of equipment includes leveraged equipment having an original cost of approximately $77,883,000 and a net book value of approximately $57,157,000 at December 31, 1998 (see Note 5). 18 AFG Investment Trust D Notes to the Financial Statements (Continued) Generally, the costs associated with maintaining, insuring and operating the Trust's equipment are incurred by the respective lessees pursuant to terms specified in their individual lease agreements with the Trust. As equipment is sold to third parties, or otherwise disposed of, the Trust will recognize a gain or loss equal to the difference between the net book value of the equipment at the time of sale or disposition and the proceeds realized upon sale or disposition. The ultimate realization of estimated residual value in the equipment will be dependent upon, among other things, EFG's ability to maximize proceeds from selling or re-leasing the equipment upon the expiration of the primary lease terms. At December 31, 1998, the cost and net book value of equipment held for sale or re-lease was approximately $3,358,000 and $681,000, respectively. The Managing Trustee is actively seeking the sale or re-lease of all equipment not on lease. In addition, the summary above also includes equipment being leased on a month-to-month basis. The Trust recorded a write-down of the carrying value of its interest in an aircraft, representing an impairment, during the year ended December 31, 1996. The resulting charge, $2,400,000 ($1.04 per Class A Interest) in 1996 was based on a comparison of the estimated net realizable value and corresponding carrying value for the Trust's interest in the aircraft. NOTE 4 - RELATED PARTY TRANSACTIONS All operating expenses incurred by the Trust are paid by EFG on behalf of the Trust and EFG is reimbursed at its actual cost for such expenditures. Fees and other costs incurred during the years ended December 31, 1998, 1997 and 1996, which were paid or accrued by the Trust to EFG or its Affiliates, are as follows: 1998 1997 1996 ------------ ------------ ------------ Equipment acquisition fees $ 5,227 $ 871,096 $ 36,120 Equipment management fees 886,096 895,643 1,071,560 Offering costs -- 157,104 -- Administrative charges 80,184 76,419 48,638 Reimbursable operating expenses due to third parties 543,699 596,354 527,519 ------------ ------------ ------------ Total $ 1,515,206 $ 2,596,616 $ 1,683,837 ============ ============ ============ EFG and its Affiliates were reimbursed for their out-of-pocket offering costs incurred on behalf of the Trust in an amount equal to 1% of the gross proceeds of the four trusts which sold Class B Interests, pursuant to the Registration Statement on Form S-1. The amount of reimbursement made by the Trust was prorated in proportion to the number of Beneficiary Interests sold in the Trust. As provided under the terms of the Trust Agreement, EFG is compensated for its services to the Trust. Such services include all aspects of acquisition, management and sale of equipment. For acquisition services, EFG was compensated by an amount equal to .28% of Asset Base Price paid by the Trust for each asset acquired for the Trust's initial asset portfolio. For reinvestment acquisitions completed prior to February 7, 1999, EFG is compensated by an amount equal to 3% of Asset Base Price paid by the Trust. In connection with the Solicitation Statement and consent of Beneficiaries (See Note 9), the Trust's reinvestment provisions, which were scheduled to expire on February 6, 1999, were extended through December 31, 2002. In addition, the Trust is now permitted to invest in assets other than equipment (See Note 12). Acquisition fees paid to EFG in connection with reinvestment assets acquired after February 6, 1999 are equal to 1% of Asset Base Price paid by the Trust. For management services, EFG is compensated by an amount equal to (i) 5% of gross operating lease rental revenue and 2% of gross full payout lease rental revenue received by the Trust with respect assets acquired on or prior to February 6, 1999. For management services earned in connection with assets acquired on or after February 7, 1999, EFG is compensated by an amount equal to 2% of gross lease rental revenue received by the Trust. Both of these fees are subject to certain limitations defined in the Trust Agreement. For non-equipment investments 19 AFG Investment Trust D Notes to the Financial Statements (Continued) other than cash, the Managing Trustee receives an annualized management fee of 1%. Compensation to EFG for services connected to the remarketing of equipment is calculated as the lesser of (i) 3% of gross sale proceeds or (ii) one-half of reasonable brokerage fees otherwise payable under arm's length circumstances. Payment of the remarketing fee is subordinated to Payout and is subject to certain limitations defined in the Trust Agreement. Administrative charges represent amounts owed to EFG, pursuant to Section 10.4(c) of the Trust Agreement, for persons employed by EFG who are engaged in providing administrative services to the Trust. Reimbursable operating expenses due to third parties represent costs paid by EFG on behalf of the Trust which are reimbursed to EFG at actual cost. All equipment was purchased from EFG, one of its Affiliates, or directly from third-party sellers. The Trust's Purchase Price is determined by the method described in Note 2, Equipment on Lease. All rents and proceeds from the sale of equipment are paid by the lessee directly to either EFG or to a lender. EFG temporarily deposits collected funds in a separate interest-bearing escrow account prior to remittance to the Trust. At December 31, 1998, the Trust was owed $448,039 by EFG for such funds and the interest thereon. These funds were remitted to the Trust in January 1999. During 1998, the Trust purchased limited partnership units (the "Units") in AFG International Limited Partnership (the "Partnership"), a real estate limited partnership sponsored by EFG that owns two commercial buildings leased to an investment grade educational institution. The Trust purchased 7.25 Units at a cost of $100,000 per unit for an aggregate purchase price of $725,000. As a result of the purchase of the Units, the Trust owns approximately 22.5% of the Partnership. The Trust accounts for its investment in the Partnership under the equity method of accounting. As such, the carrying value of the Trust's investment in the Partnership is increased or decreased by an amount equal to the Trust's share of the Partnership's income or losses, respectively, and decreased for any distributions received from the Partnership. At December 31, 1998, this investment had a carrying balance of $699,626 and is reflected as Investment - affiliate on the accompanying Statement of Financial Position. Old North Capital Limited Partnership ("ONC"), a Massachusetts limited partnership formed in 1995 and an affiliate of EFG, owns 44,084 Class A Interests or 2.28% of the total outstanding Class A Interests of the Trust. The general partner of ONC is controlled by Gary D. Engle. In addition, the limited partnership interests of ONC are owned by Semele Group, Inc. ("Semele"). Gary D. Engle is Chairman and CEO of Semele. Refer to Note 7 regarding the purchase of Class B Interests by an affiliate, Equis II Corporation and the change in ownership of the Managing Trustee. NOTE 5 - NOTES PAYABLE Notes payable at December 31, 1998 consisted of installment notes of $35,030,985 payable to banks and institutional lenders. The notes bear interest rates ranging between 6.92% and 13.75%, except for one note, which bears a fluctuating interest rate based on LIBOR (5.54% at December 31, 1998) plus a margin. All of the installment notes are non-recourse, and are collateralized by the equipment and assignment of the related lease payments. Generally, the installment notes will be fully amortized by noncancellable rents. However, the Trust has balloon payment obligations of $19,980,682, $1,400,074 and $282,421 at the expiration of the lease terms related to the SAS Aircraft, certain rail equipment and an MD-87 jet aircraft leased by Reno Air, Inc., respectively. During 1998, pursuant to the lease agreement, SAS exercised its option to extend the term of the existing lease for a period of two years, beginning December 30, 1998. As a result of SAS exercising the renewal lease option, the balloon payment has been postponed until the termination of the two-year extension period. The carrying amount of notes payable approximates fair value at December 31, 1998. 20 AFG Investment Trust D Notes to the Financial Statements (Continued) The annual maturities of the installment notes payable are as follows: For the year ending December 31, 1999 $ 7,244,103 2000 24,496,352 2001 1,729,169 2002 1,279,940 2003 281,421 -------------- Total $ 35,030,985 ============== NOTE 6 - INCOME TAXES The Trust is not a taxable entity for federal income tax purposes. Accordingly, no provision for income taxes has been recorded in the accounts of the Trust. For financial statement purposes, the Trust allocates net income quarterly first, to eliminate any Participant's negative capital account balance and second, 1% to the Managing Trustee, 8.25% to the Special Beneficiary and 90.75% collectively to the Class A and Class B Beneficiaries. The latter is allocated proportionately between the Class A and Class B Beneficiaries based upon the ratio of cash distributions declared and allocated to the Class A and Class B Beneficiaries during the period (excluding $5,601,790 Class B capital distributions paid in 1998). Net losses are allocated quarterly first, to eliminate any positive capital account balance of the Managing Trustee, the Special Beneficiary and the Class B Beneficiaries; second, to eliminate any positive capital account balances of the Class A Beneficiaries; and third, any remainder to the Managing Trustee. This convention differs from the income or loss allocation requirements for income tax and Dissolution Event purposes as delineated in the Trust Agreement. For income tax purposes, the Trust allocates net income or net loss in accordance with the provisions of such agreement. Pursuant to the Trust Agreement, upon dissolution of the Trust, the Managing Trustee will be required to contribute to the Trust an amount equal to any negative balance which may exist in the Managing Trustee's tax capital account. At December 31, 1998, the Managing Trustee had a negative tax capital account balance of $303,603. The following is a reconciliation between net income (loss) reported for financial statement and federal income tax reporting purposes for the years ended December 31, 1998, 1997 and 1996:
1998 1997 1996 ------------------ ------------------ ------------------ Net income $ 3,875,037 $ 2,017,457 $ 630,535 Tax depreciation in excess of financial statement depreciation (5,594,998) (4,292,255) (5,450,339) Write-down of equipment -- -- 2,400,000 Tax gain (loss) in excess of book gain (loss) 608,670 2,507,051 (720,447) Deferred rental income 369,321 (161,505) (157,924) Other (59,552) (28,038) 3,790 ------------------ ------------------ ------------------ Net income (loss) for federal income tax reporting purposes $ (801,522) $ 42,710 $ (3,294,385) ================== ================== ==================
21 AFG Investment Trust D Notes to the Financial Statements (Continued) The following is a reconciliation between participants' capital reported for financial statement and federal income tax reporting purposes for the years ended December 31, 1998 and 1997:
1998 1997 ------------------ ------------------ Participants' capital $ 41,937,651 $ 49,063,215 Add back selling commissions and organization and offering costs 5,113,551 5,113,551 Deferred step-down of capital basis (366,869) -- Cumulative difference between federal income tax and financial statement income (loss) (19,945,093) (15,268,536) ------------------ ------------------ Participants' capital for federal income tax reporting purposes $ 26,739,240 $ 38,908,230 ================== ==================
Cumulative difference between federal income tax and financial statement income (loss) represent timing differences. NOTE 7 - ISSUANCE OF CLASS B INTERESTS On October 26, 1996, the Trust filed a Solicitation Statement with the United States Securities and Exchange Commission (the "SEC") which subsequently was sent to the Beneficiaries pursuant to Regulation 14A of Section 14 of the Securities Exchange Act. The Solicitation Statement sought the consent of the Beneficiaries to a proposed amendment (the "Amendment") to the Amended and Restated Declaration of Trust (the "Trust Agreement") which would (i) amend the provisions of the Trust Agreement governing the redemption of Beneficiary Interests to permit the Trust to offer to redeem outstanding Beneficiary Interests at such times, in such amounts, in such manner and at such prices as the Managing Trustee might determine from time to time, in accordance with applicable law; and (ii) add a provision to the Trust Agreement that would permit the Trust to issue, at the discretion of the Managing Trustee and without further consent or approval of the Beneficiaries, an additional class of security with such designations, preferences and relative, participating, optional or other special rights, powers and duties as the Managing Trustee might affix. The funds obtained through the issuance of such a security were intended to be used by the Trust to (a) expand redemption opportunities for Beneficiaries without using Trust funds which might otherwise be available for cash distributions; and (b) make a special one-time cash distribution to the Beneficiaries. Pursuant to the Trust Agreement, the adoption of the Amendment required the consent of the Beneficiaries holding more than 50% in the aggregate of the Class A Interests held by all Beneficiaries. A majority of the Class A Interests, representing 1,210,746 Interests or 58% of all Class A Interests, voted in favor of the Amendment; 229,836 Interests or 11% of all Class A Interests voted against the Amendment; and 39,233 Interests or 2% of all Class A Interests abstained. Approximately 71% of all Class A Interests participated in the vote. Accordingly, the Amendment was adopted. On February 12, 1997, the Trust filed a Registration Statement on Form S-1 with the SEC, which became effective June 10, 1997. The Registration Statement covered the issuance and sale of a new class of beneficiary interests in the Trust (the "Class B Interests"). The characteristics of the Class B Interests, associated risk factors and other matters of importance to the Beneficiaries and purchasers of the Class B Interests were set forth in a Prospectus sent to the Beneficiaries. On July 17, 1997, the offering closed and on July 18, 1997 the Trust issued 3,142,083 Class B Interests at $5.00 per interest, thereby generating $15,710,415 in aggregate Class B capital contributions. Class A Beneficiaries purchased 1,400 Class B Interests, generating $7,000 of such aggregate capital contributions, and the Special Beneficiary, EFG, purchased 3,140,683 Class B Interests, generating 22 AFG Investment Trust D Notes to the Financial Statements (Continued) $15,703,415 of such aggregate capital contributions. The Trust incurred offering costs in the amount of $157,104 and professional service costs of $159,066 in connection with this offering. Subsequently, EFG transferred its Class B Interests to a special-purpose company, Equis II Corporation, a Delaware corporation. EFG also transferred its ownership of AFG ASIT Corporation, the Managing Trustee of the Trust, to Equis II Corporation. As a result, Equis II Corporation has voting control of the Trust through its ownership of the majority of all of the Trust's outstanding voting interests, as well as its ownership of AFG ASIT Corporation. Equis II Corporation is controlled by EFG's President and Chief Executive Officer, Gary D. Engle. Accordingly, control of the Managing Trustee did not change as a result of the foregoing transactions. As described in the Prospectus for the offering of the Class B Interests, the Managing Trustee used a portion of the net cash proceeds realized from the issuance of the Class B Interests to pay a one-time special cash distribution of approximately $1.47 per Class A Interest to the Class A Beneficiaries of the Trust. The Managing Trustee declared and paid this special cash distribution, aggregating $3,075,818, to the Class A Beneficiaries on August 15, 1997. See Note 8 regarding the redemption of Class A Interests. NOTE 8 - REDEMPTION OF CLASS A INTERESTS On August 7, 1997, the Trust commenced an offer to purchase up to 45% of the outstanding Class A Interests of the Trust by filing a Form 13E-4, Issuer Tender Offer Statement, with the SEC and distributing to the Class A Beneficiaries information (the "Tender Documents") concerning the offer. On October 10, 1997, the Trust used $1,606,322 of the net proceeds realized from the offering of the Class B Interests to purchase 153,275 of the Class A Interests tendered as a result of the offer. On April 28, 1998, the Trust purchased 1,000 additional Class A Interests at a cost of $9,000. NOTE 9 - SOLICITATION STATEMENT On May 5, 1998, the Trust filed a definitive Solicitation Statement with the United States Securities and Exchange Commission in connection with the solicitation by the Trust of the consent of the Beneficiaries to a proposed amendment (the "Amendment") to the Second Amended and Restated Declaration of Trust (the "Trust Agreement"). The Solicitation Statement and Consent of Beneficiary were mailed to all of the Beneficiaries of the Trust on May 6, 1998. The Beneficiaries were requested to use the Consent of Beneficiary to vote on seven proposals and return their votes on or before June 5, 1998. Equis II Corporation, which has voting control of the Trust, agreed to vote all of its Class B Interests in the same manner in which the majority of the Class A Interests were actually voted. Accordingly, the Amendment would be adopted or rejected based upon the voting results of the majority of Class A Interests that were actually voted (including 44,084 Class A Interests owned by affiliates of EFG), regardless of how few Class A Interests were actually voted. The results of the voting reflected that a majority of Class A Interests voted in favor of each of the proposals. Therefore, the Trust Agreement was amended to (i) broaden the Trust's stated investment policies and objectives and permit the Trust to invest in assets other than leased equipment; (ii) modify the Trust's financing provisions to eliminate any cap on the amount of aggregate Trust indebtedness and permit the Trust to use cross-collateralized and other recourse debt structures; (iii) extend the Trust's reinvestment period, which presently is scheduled to expire on February 6, 1999, until December 31, 2002 and (iv) reduce acquisition fees paid to EFG in connection with reinvestment assets acquired after the Amendment date from a maximum of 3% to 1% and management fees earned in connection with such assets from a maximum of 5% to 2%. In addition, subject to attaining a settlement in the Class Action Lawsuit described in Note 11 herein, the Trust Agreement will be modified in the following principal respects: (i) the Trust will pay a Special Cash Distribution to the Class A Beneficiaries of record as of September 1, 1997, or to their successors or assigns, totaling $1,572,405 (or approximately $0.75 per Class A Beneficiary Interest) using a portion of the Class B capital contributions that otherwise would be distributed as a Class B Capital Distribution to Equis II Corporation, the 23 AFG Investment Trust D Notes to the Financial Statements (Continued) parent company of the Managing Trustee and an affiliate of EFG; (ii) Equis II Corporation will be required to reduce its prospective Class B Capital Distributions by $3,537,910 and treat such amount as a long-term equity investment in the Trust and (iii) certain voting restrictions will be placed upon the Class B Interests owned by Equis II Corporation. NOTE 10 - CLASS B CAPITAL DISTRIBUTION The Managing Trustee and certain of its affiliates were named as defendants in the Class Action Lawsuit discussed in Note 11 herein. In connection with this litigation and subject to a settlement being effected, the Managing Trustee has agreed to adopt certain modifications to the Trust Agreement as described in the Solicitation Statement referred to in Note 9 herein. One aspect of the proposed settlement would result in using of a portion of Equis II Corporation's Class B Capital Contribution to the Trust to (i) pay a second special cash distribution to Class A Beneficiaries totaling $1,572,405, approximately $.75 per Class A Interest, and (ii) invest $3,537,910 in the Trust's long-term business activities. The remainder of the Class B Capital Contributions (not otherwise used to repurchase Class A Interests in the Tender Offer closed on October 10, 1997 or to pay for offering and related costs associated with the Class B Interests or to pay the first special cash distribution), $5,601,790 in total, was returned to Equis II Corporation ($5,597,017) and the other third-party Class B capital contributors ($4,773) on July 6, 1998. NOTE 11 - LEGAL PROCEEDINGS On or about January 15, 1998, certain plaintiffs (the "Plaintiffs") filed a class and derivative action, captioned Leonard Rosenblum, et al. v. Equis Financial Group Limited Partnership, et al., in the United States District Court for the Southern District of Florida (the "Court") on behalf of a proposed class of investors in 28 equipment leasing programs sponsored by EFG, including the Trust (collectively, the "Nominal Defendants"), against EFG and a number of its affiliates, including the Managing Trustee, as defendants (collectively, the "Defendants"). Certain of the Plaintiffs, on or about June 24, 1997, had filed an earlier derivative action, captioned Leonard Rosenblum, et al. v. Equis Financial Group Limited Partnership, et al., in the Superior Court of the Commonwealth of Massachusetts on behalf of the Nominal Defendants against the Defendants. Both actions are referred to herein collectively as the "Class Action Lawsuit." The Plaintiffs have asserted, among other things, claims against the Defendants on behalf of the Nominal Defendants for violations of the Securities Exchange Act of 1934, common law fraud, breach of contract, breach of fiduciary duty, and violations of the partnership or trust agreements that govern each of the Nominal Defendants. The Defendants have denied, and continue to deny, that any of them have committed or threatened to commit any violations of law or breached any fiduciary duties to the Plaintiffs or the Nominal Defendants. On July 16, 1998, counsel for the Defendants and the Plaintiffs executed a Stipulation of Settlement setting forth terms pursuant to which a settlement of the Class Action Lawsuit is intended to be achieved and which, among other things, is expected to reduce the burdens and expenses attendant to continuing litigation. The Stipulation of Settlement was based upon and superseded a Memorandum of Understanding between the parties dated March 9, 1998 which outlined the terms of a possible settlement. The Stipulation of Settlement was filed with the Court on July 23, 1998 and was preliminarily approved by the Court on August 20, 1998 when the Court issued its "Order Preliminarily Approving Settlement, Conditionally Certifying Settlement Class and Providing for Notice of, and Hearing on, the Proposed Settlement" (the "August 20 Order"). Prior to issuing a final order, the Court will hold a fairness hearing that will be open to all interested parties and permit any party to object to the settlement. The investors of the Trust and all other plaintiff class members in the Class Action Lawsuit will receive a Notice of Settlement and other information pertinent to the settlement of their claims in advance of the fairness hearing. Since first executing the Stipulation of Settlement, the Court has scheduled two fairness hearings, the first on December 11, 1998 and the second on March 19, 1999, each of which was postponed because of delays in finalizing certain information materials that are subject to regulatory review prior to being distributed to investors, but none of which involved the Trust's settlement. 24 AFG Investment Trust D Notes to the Financial Statements (Continued) On March 15, 1999, counsel for the Plaintiffs and the Defendants entered into an amended stipulation of settlement (the "Amended Stipulation") which was filed with the Court on March 15, 1999. The Amended Stipulation was preliminarily approved by the Court by its "Modified Order Preliminarily Approving Settlement, Conditionally Certifying Settlement Class and Providing For Notice of, and Hearing On, the Proposed Settlement" dated March 22, 1999 (the "March 22 Order"). The Amended Stipulation, among other things, divides the Class Action Lawsuit into two separate sub-classes that can be settled individually. This revision is expected to expedite the settlement of the Trust's claims by the middle of 1999. The second sub-class, which does not include the Trust, is expected to remain pending for a longer period. Assuming the proposed settlement is effected according to present terms, the Trust's share of legal fees and expenses related to the Class Action Lawsuit is estimated to be approximately $290,000, all of which was accrued and expensed by the Trust in 1998. There can be no assurance that settlement of either sub-class of the Class Action Lawsuit will receive final Court approval and be effected. However, the Managing Trustee and its affiliates, in consultation with counsel, concur that there is a reasonable basis to believe that final settlements of each sub-class will be achieved. In the absence of final settlements approved by the Court, the Defendants intend to defend vigorously against the claims asserted in the Class Action Lawsuit. Neither the Managing Trustee nor its affiliates can predict with any degree of certainty the cost of continuing litigation to the Trust or the ultimate outcome. In addition to the foregoing, the Trust is a party to other lawsuits that have arisen out of the conduct of its business, principally involving disputes or disagreements with lessees over lease terms and conditions. The following action had not been finally adjudicated at December 31, 1998: Action involving National Steel Corporation EFG, on behalf of the Trust and certain affiliated investment programs (collectively, the "Plaintiffs"), filed an action in the Commonwealth of Massachusetts Superior Court, Department of the Trial Court in and for the County of Suffolk on July 27, 1995, for damages and declaratory relief against a lessee of the Trust, National Steel Corporation ("National Steel"). The Complaint seeks reimbursement from National Steel of certain sales and/or use taxes paid to the State of Illinois in connection with equipment leased by National Steel from the Plaintiffs and other remedies provided under the Master Lease Agreement ("MLA"). On August 30, 1995, National Steel filed a Notice of Removal, which removed the case to United States District Court, District of Massachusetts. On September 7, 1995, National Steel filed its Answer to the Plaintiff's Complaint along with Affirmative Defenses and Counterclaims and sought declaratory relief, alleging breach of contract, implied covenant of good faith and fair dealing, and specific performance. The Plaintiffs filed an Answer to National Steel's Counterclaims on September 29, 1995. The parties discussed settlement with respect to this matter for some time; however, the negotiations were unsuccessful. The Plaintiffs filed an Amended and Supplemental Complaint alleging further default under the MLA and filed a motion for Summary Judgment on all claims and Counterclaims. The Court held a hearing on the Plaintiff's motion in December 1997 and later entered a decision dismissing certain of National Steel's Counterclaims, finding in favor of the Plaintiffs on certain issues and in favor of National Steel on other issues. In March 1999, the Plaintiffs obtained payment for certain of the disputed items and have resumed settlement discussions to resolve remaining issues. The Managing Trustee does not believe that the resolution of the remaining claims will have a material adverse effect on the Trust's financial position or results of operations. NOTE 12 - SUBSEQUENT EVENT On March 1, 1999, the Trust and an affiliated trust (collectively, the "Buyers") formed EFG/Kettle Development LLC, a Delaware limited liability company, for the purpose of acquiring a 49.9% indirect ownership interest (the "Interest") in a real estate development in Kelowna, British Columbia called Kettle Valley. EFG/Kettle Development LLC, upon receiving the Buyers' equity investment, purchased the Interest from a special purpose company ("SPC") whose subsidiaries own a 99.9% limited partnership interest in Kettle Valley Development 25 AFG Investment Trust D Notes to the Financial Statements (Continued) Limited Partnership ("KVD LP"). The SPC and its subsidiaries were established by the seller, in part, for income tax purposes and have no business interests other than the development of Kettle Valley. KVD LP is a Canadian Partnership that owns the property, consisting of approximately 280 acres of land. The project, which is in the early stages of being marketed to home buyers, is zoned for 1,000 residential units in addition to commercial space that, currently, is being constructed. The seller is an unaffiliated third-party company and has retained the remaining 50.1% ownership interest in the SPC. A newly organized Canadian affiliate of EFG replaced the original general partner of KVD LP on March 1, 1999. The Trust's ownership share in EFG/Kettle Development LLC is 49.396% and had a cost of $4,322,150, which was funded with cash of $3,021,478 and a non-recourse note for $1,300,672. The note bears interest at an annualized rate of 7.5% and will be fully amortized over 34 months commencing April 1, 1999. The note is secured only by the Trust's stock interests in the SPC. In addition, the seller purchased a residual sharing interest in a Boeing 767-300 owned by the Buyers and leased to Scandinavian Airlines System. The seller paid $3,013,206 to the Buyers ($1,488,403, or 49.396% to the Trust) for the residual interest, which is subordinate to certain preferred payments to be made to the Buyers in connection with the aircraft. Payment of the residual interest is due only to the extent that the Trust receives net residual proceeds from the aircraft. The residual interest is non-recourse to the Buyers. 26 ADDITIONAL FINANCIAL INFORMATION AFG Investment Trust D SCHEDULE OF EXCESS (DEFICIENCY) OF TOTAL CASH GENERATED TO COST OF EQUIPMENT DISPOSED for the years ended December 31, 1998, 1997 and 1996 The Trust classifies all rents from leasing equipment as lease revenue. Upon expiration of the primary lease terms, equipment may be sold, rented on a month-to-month basis or re-leased for a defined period under a new or extended lease agreement. The proceeds generated from selling or re-leasing the equipment, in addition to any month-to-month revenues, represent the total residual value realized for each item of equipment. Therefore, the financial statement gain or loss, which reflects the difference between the net book value of the equipment at the time of sale or disposition and the proceeds realized upon sale or disposition, may not reflect the aggregate residual proceeds realized by the Trust for such equipment. The following is a summary of cash excess associated with equipment dispositions occurring in the years ended December 31, 1998, 1997 and 1996.
1998 1997 1996 --------------- --------------- --------------- Rents earned prior to disposal of equipment, net of interest charges $ 4,633,505 $ 4,798,925 $ 11,043,130 Sale proceeds, including assumption of debt and interest, realized upon disposition of equipment 1,407,762 5,392,670 2,238,672 --------------- --------------- --------------- Total cash generated from rents and equipment sale proceeds 6,041,267 10,191,595 13,281,802 Original acquisition cost of equipment disposed 5,558,107 9,199,335 10,634,189 --------------- --------------- --------------- Excess of total cash generated to cost of equipment disposed $ 483,160 $ 992,260 $ 2,647,613 =============== =============== ===============
27 AFG Investment Trust D STATEMENT OF CASH AND DISTRIBUTABLE CASH FROM OPERATIONS, SALES AND REFINANCINGS for the year ended December 31, 1998
Sales and Operations Refinancings Total ------------------ ------------------ ------------------ Net income (loss) $ 4,287,441 $ (412,404) $ 3,875,037 Add: Depreciation and amortization 10,234,690 -- 10,234,690 Management fees 886,096 -- 886,096 Book value of disposed equipment -- 1,820,166 1,820,166 Less: Principal reduction of notes payable (8,071,265) -- (8,071,265) ------------------ ------------------ ------------------ Cash from operations, sales and refinancings 7,336,962 1,407,762 8,744,724 Less: Management fees (886,096) -- (886,096) ------------------ ------------------ ------------------ Distributable cash from operations, sales and refinancings 6,450,866 1,407,762 7,858,628 Other sources and uses of cash: Cash at beginning of year 4,190,893 27,609 4,218,502 Purchase of equipment (179,510) -- (179,510) Purchase of Treasury Interests (9,000) -- (9,000) Investment - affiliate (699,626) -- (699,626) Restricted cash 5,601,790 -- 5,601,790 Net change in receivables and accruals 3,363,330 -- 3,363,330 Less: Cash distributions paid (11,054,098) -- (11,054,098) ------------------ ------------------ ------------------ Cash at end of year $ 7,664,645 $ 1,435,371 $ 9,100,016 ================== ================== ==================
28 AFG Investment Trust D SCHEDULE OF COSTS REIMBURSED TO THE MANAGING TRUSTEE AND ITS AFFILIATES AS REQUIRED BY SECTION 10.4 OF THE SECOND AMENDED AND RESTATED DECLARATION OF TRUST December 31, 1998 For the year ended December 31, 1998 the Trust reimbursed the Managing Trustee and its Affiliates for the following costs: Operating expenses $ 338,114 EX-23 3 EXHIBIT 23 Exhibit 23 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in this Annual Report (Form 10-K) of AFG Investment Trust D of our report dated March 26, 1999, included in the 1998 Annual Report to the Participants of AFG Investment Trust D. ERNST & YOUNG LLP Boston, Massachusetts March 26, 1999 EX-99.A 4 EXHIBIT 99.A Exhibit 99.2 CERTIFICATE OF OFFICER I, Jean Stein, president of CIT Leasing (Bermuda), Ltd., hereby certify that attached herewith is a true and complete copy of the Aircraft Lease Agreement, dated December 29. 1993, between CIT Leasing (Bermuda), Ltd., as Lessor, Scandinavian Airlines System, Denmark-Norway-Sweden, as Lessee and SAS Capital, B.V. CIT LEASING (BERMUDA), LTD. By: /s/ Jean B. Stein -------------------------- Name: Jean Stein Title: President Private & Confidential DATED 29th day of December, 1993 CIT LEASING (BERMUDA), LTD. (as Lessor) (1) SCANDINAVIAN AIRLINES SYSTEM Denmark-Norway-Sweden (as Lessee) (2) and SAS CAPITAL BV (3) ----------------------------------------- AIRCRAFT LEASE AGREEMENT for One Boeing 767-300ER Aircraft Manufacturer's Serial No. 24475 Norwegian Registration Mark LN-RCG ----------------------------------------- Norton Rose London CONTENTS Clause Heading Page - ------ ------- ---- 1 Definitions ........................................................... 1 2 Representations and Warranties ........................................ 10 3 Term of Lease ......................................................... 14 4 Conditions ............................................................ 15 5 Delivery and Acceptance ............................................... 16 6 Lessor's Warranties and Manufacturer's Warranties ..................... 17 7 Rent .................................................................. 18 8 Payments, Interest and Calculations ................................... 20 9 Costs and Indemnities ................................................. 21 10 Taxation .............................................................. 24 11 General Undertakings .................................................. 30 11.1 .................................................................. 30 (a) Notification of Relevant Event ............................. 30 (b) Consents and authorisations ................................ 31 (c) Preparation and Supply of Accounts ......................... 31 (d) Information concerning the Lessee and SAS BV ............... 31 11.2 .................................................................. 31 (a) Status Report .............................................. 31 (b) Inspection ................................................. 31 12 Sub-Leasing ........................................................... 33 13 Operations and Maintenance ............................................ 37 (a) Certificates and Licences .................................. 37 (b) Operation and Use .......................................... 37 (c) Maintenance ................................................ 37 (d) Replacement and Installation of Engines and Parts .......... 38 (e) Removal of Engines and Parts ............................... 39 (f) Non-installed Engines ...................................... 39 (g) Nameplates ................................................. 39 (h) Alterations ................................................ 40 13.2 Temporary Installation of engines and Parts ...................... 40 13.3 Pooling and Installation of Parts and Engines on other aircraft .. 40 14 Manuals and Technical Records ......................................... 42 15 Title and Registration ................................................ 43 16 Insurance ............................................................. 44 17 Loss and Damage ....................................................... 46 18 Requisition ........................................................... 48 19 Redelivery ............................................................ 49 20 Termination Events .................................................... 55 21 Lessor's Rights Following a Termination Event ......................... 57 22 Notices ............................................................... 58 23 Assignment ............................................................ 60 24 Miscellaneous ......................................................... 62 25 Confidentiality ....................................................... 62 26 Law and Jurisdiction .................................................. 64 Schedule 1 List of Documents and Evidence ........................................ 66 2 Acceptance Certificate ................................................ 71 3 Rent payable during the First Renewal Term and the Second Renewal Term .................................................................. 73 4 Agreed Value .......................................................... 74 5 Part 1 Permitted Air Carriers ......................................... 75 5 Part 2 Permitted Countries ............................................ 77 6 Form of Letter of Quiet Enjoyment ..................................... 78 A LEASE AGREEMENT dated 29th of December, 1993, and made BETWEEN: (1) CIT LEASING (BERMUDA), LTD. a limited liability company organised and existing under the laws of Bermuda, whose registered office is at Clarendon House, 2 Church Street, Hamilton, Bermuda (the "Lessor"); and (2) SCANDINAVIAN AIRLINES SYSTEM Denmark-Norway-Sweden, a consortium organised and existing under the laws of Denmark, Norway and Sweden with its principal office at Frosundaviks Alle 1, Solna, 161 87 Stockholm, Sweden (the "Lessee"); and (3) SAS CAPITAL BV a company organised and existing under the laws of the Netherlands, acting for the purpose of this Agreement through its branch office in Brussels located at Regentlaan 45, 1000, Brussels, Belgium ("SAS BV"). BY WHICH IT IS AGREED as follows: 1 Definitions 1.1 In this Agreement, unless the context otherwise requires: "Acceptance Certificate" means a certificate in substantially the form set out in schedule 2 to be signed by the Lessee as required under clause 5 (Delivery and Acceptance); "ABA" means Aktiebolaget Aerotransport, a Swedish corporation; "Affiliate" means, in relation to any person, any other person which, directly or indirectly, controls or is controlled by or is under common control with such person and for the purposes of this definition, "control" when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms "controlling" and "controlled" have meanings correlative to the foregoing; "Agreed Value" means an amount calculated in accordance with schedule 4; "Aircraft" means the Airframe together with the Engines (whether or not any of the Engines may from time to time be installed on the Airframe); and, where the context so permits, shall include the Manuals and Technical Records and, unless otherwise provided herein, shall mean the Aircraft as a whole and any part thereof; "Aircraft Purchase Agreement" means the aircraft purchase agreement of even date herewith between the Lessee, as seller, and the Lessor, as buyer, relating to the sale by the Lessee to the Lessor of the Aircraft; 1 "Airframe" means: (a) the Boeing 767-300ER aircraft with manufacturer's serial number 24475 (excluding the Engines or engines from time to time installed thereon) and all Parts installed at Delivery (other than galley inserts, cargo containers, and any audio visual and telephone equipment installed at Delivery which is leased by the Lessee from any third party); (b) any and all Parts which are from time to time incorporated therein or installed thereon or attached thereto title to which is vested in the Lessor in accordance with the terms of this Agreement; and (c) for so long as title thereto shall remain vested in the Lessor in accordance with the terms of this Agreement any and all Parts which have been removed from such aircraft and all replacements, renewals and additions made to the foregoing in accordance with this Agreement.; "Appraisal" shall mean an appraisal mutually agreed to by two internationally recognised independent aircraft appraisers, one of which shall be chosen by the Lessor, at the Lessor's expense, and one by the Lessee, at the Lessee's expense, or if such appraisers cannot agree on the amount of such appraisal, an amount equal to the average of such two appraisals and a third appraisal arrived at by a third internationally recognised independent aircraft appraiser chosen by the mutual consent of such two appraisers, and paid for by the Lessor and the Lessee in equal shares, provided that, if either party shall fail to appoint an appraiser within thirty (30) days after a written request to do so by the other party then the amount of the appraisal shall be determined by the appraiser selected by the other party; provided however, that in calculating such average any appraisal which has a greater then ten per cent. (10%) variance above or below the second highest of the three appraisals shall be disregarded; "Approved Maintenance Programme" means the Aviation Authority approved maintenance programme for aircraft of the same make and model as the Aircraft based upon the manufacturer's maintenance planning data document and encompassing scheduled maintenance (including block maintenance), condition monitored maintenance and on-condition maintenance of Airframe, Engines and Parts of the Aircraft including, but not limited to, servicing, testing, preventive maintenance, repairs, structural inspections, system checks, overhauls, approved modifications, service bulletins, engineering orders, airworthiness directives, corrosion control, inspections and treatments; "Assignment" means the assignment of the Lessor's rights, title and interest in and under this Agreement granted, or to be granted, by the Lessor in favour of the Lender as security for the Lessor's obligations to the Lender in respect of financing of the Aircraft; "Aviation Authority" means the Aviation Authority of the State of Registration or any other agency or office in the State of Registration who shall from time 2 to time be vested with the control and supervision of, or have jurisdiction over, the registration, airworthiness and operation of aircraft or other matters relating to civil aviation in the State of Registration; "Banking Day" means a day (other than a Saturday, Sunday or holiday scheduled by law) on which banks are open for business in Stockholm, Oslo, Brussels and New York City, and the relevant place of payment under clause 8; "Compulsory Acquisition" means requisition of title or other compulsory acquisition, requisition, appropriation, expropriation, deprivation or confiscation for any reason of the Aircraft by a Government Entity or other competent authority, whether de jure or de facto, but shall exclude requisition for use or hire not involving requisition of title; "Consortium Agreement" means the Consortium Agreement dated 8th February 1951, among DDL, DNL and ABA; "Cycle" shall mean one take-off and landing of the Aircraft or, in respect of any Engine or Part temporarily installed on another aircraft, that other aircraft; "DDL" means Det Danske Luftfarselskab A/S, a Danish corporation; "Delivery" means the time when the Lessor shall obtain title to the Aircraft under the Aircraft Purchase Agreement and shall be deemed to have delivered the Aircraft to the Lessee pursuant to clause 5, and the Lease Period shall have commenced, as evidenced by the execution and delivery of the Acceptance Certificate; "Delivery Date" means the date on which Delivery shall occur; "Delivery Location" means Arlanda Airport, Stockholm, Sweden or Copenhagen Airport, Copenhagen, Denmark, or Fornebu Airport, Oslo, Norway or such other location as may be mutually agreed by the Lessee and the Lessor; "Dispensation" means a dispensation issued by the Department of Transportation of the State of Registration permitting the Aircraft to be registered in the name of the Lessor; "DNL" means Det Norske Luftfartselskap A/S, a Norwegian corporation; "Dollars" and "$" mean the lawful currency of the United States of America and, in respect of all payments to be made under this Agreement in Dollars, mean funds which are for same day settlement in the New York Clearing House Interbank Payments System (or such other U.S. dollar funds as may at the relevant time be customary for the settlement of international banking transactions denominated in United States dollars); 3 "Encumbrance" means any mortgage, charge, pledge, lien, hypothecation assignment, trust arrangement or security interest of any kind; "Engine" means: (a) each of the Pratt & Whitney PW4060 engines specified in the Acceptance Certificate which are installed on the Airframe at Delivery and any other engine or engines which become the property of the Lessor pursuant to the terms of this Agreement whether or not any of the foregoing have been removed from the Airframe and installed on the Airframe or any other airframe or aircraft so long as title thereto shall remain vested in the Lessor in accordance with the terms of this Agreement; (b) any Replacement Engine which may replace any of the engines referred to in paragraph (a) above pursuant to the terms hereof; and (c) in each case, any and all Parts which are from time to time incorporated or installed on or in or attached to any such engine (or Replacement Engine) when delivered and leased hereunder or at any time thereafter title to which is vested in the Lessor in accordance with the terms of this Agreement, and any and all parts which have been removed therefrom provided that title thereto remains vested in the Lessor in accordance with the terms of this Agreement. "Engine Loss" means the occurrence of any of the events referred to in the definition of "Total Loss" but with reference therein to "Aircraft" being construed as references to any Engine; "Expected Delivery Date" means 30th December, 1993 or such other date as may be mutually agreed by the Lessee and the Lessor in writing; "Flight Hour" shall mean each hour or fraction thereof elapsing from the moment at which the wheels of the Aircraft (or other aircraft in the case of temporarily installed Parts or Engines) leave the ground on the take-off of such aircraft until the wheels of such aircraft touch the ground on the landing of such aircraft following such take-off; "First Renewal Term" shall have the meaning ascribed thereto in clause 3.2; "Government Entity" means and includes (whether having a distinct legal personality or not) (a) any national government, political sub-division thereof, or local jurisdiction therein, (b) any board, commission, department, division, organ, instrumentality, court or agency of any entity referred to in (a) above, however constituted, and (c) any association, organisation or institution (international or otherwise) of which any entity mentioned in (a) or (b) above is a member or to whose jurisdiction any thereof is subject or in whose activities any thereof is a participant; 4 "ICAO" means the International Civil Aviation Organisation; "Indebtedness" means any obligation for the payment or repayment of money, whether as principal or as surety, and whether present or future, actual or contingent; "Insurances" means any and all contracts or policies of insurance required to be effected and maintained under this Agreement; "Inter-Government Agreement" means the Inter-Government Agreement dated 20th December, 1951 between Sweden, Denmark and Norway concerning cooperation with respect to air traffic; "Lease Period" means the period during which the Lessee shall be entitled to the possession and use of the Aircraft in accordance with this Agreement; "Lease Term" means the Primary Lease Term and any permitted extension thereof pursuant to clause 3.2; "Lender" means any bank or financial institution which provides to the Lessor finance in respect of the Aircraft; "Lessee" includes the successors, permitted assigns and permitted transferees of the Lessee; "Lessee Documents" means this Agreement, the Aircraft Purchase Agreement, the Warranties Assignment, any other agreement executed by the Lessee in connection with obligations owed to the Lessor under this Agreement and all notices, consents, certificates and other documents and agreements to which the Lessee is a party to be issued pursuant to the foregoing; "Lessor's Liens" means any Encumbrance arising as a result of (i) claims against the Lessor not related to the Lessee Documents or the transactions contemplated thereby, (ii) acts of the Lessor not contemplated hereunder or under the other Lessee Documents or which are in violation of the Lessee Documents, (iii) Taxes imposed against the Lessor which are not to be indemnified against by the Lessee pursuant to the Lessee Documents or other Taxes in respect of which the Lessee has made all indemnity payments to the Lessor required pursuant to the Lessee Documents, or (iv) claims against the Lessor arising out of the voluntary transfer by the Lessor (without the consent of the Lessee) of its interest, at any time, in the Aircraft, the Airframe or any Engine, other than a transfer or disposition by the Lessor permitted pursuant to clauses 21 or 23 hereof; provided however, that any Encumbrance which is attributable solely to the Lessor and would otherwise constitute Lessor's Liens hereunder shall not constitute Lessor's Liens hereunder so long as (1) the enforcement of such Lien would pose no likelihood of the sale, forfeiture or loss of the Aircraft, the Airframe or any Engine or any interest herein, (2) the enforcement of such Lien would not interfere in any way with the quiet 5 enjoyment, use or operation of the Aircraft by the Lessee (or any permitted sub-lessee), and, if applicable, (3) the Lessor is diligently contesting such Lien by appropriate proceedings, or (4) such Lessor's Lien is a Permitted Lien hereunder or (5) the Lessor has procured a Letter of Quiet Enjoyment from the beneficiary of such Lessor's Lien; "Letter of Quiet Enjoyment" means a letter executed by the Lender or any other beneficiary of a Lessor's Lien, in each case in the form of schedule 6, or such other form as the Lessee and the Lessor may agree; "Manuals and Technical Records" means all original records, logbooks, manuals, technical data and other materials and documents (whether kept or to be kept in compliance with any regulation of the Aviation Authority or otherwise) relating to the Aircraft all of which shall be maintained in the English language; "month" means a period beginning in one calendar month and ending in the next calendar month on the day numerically corresponding to the day of the calendar month on which it started; provided that (a) if the period started on the last Banking Day in a calendar month or if there is no such numerically corresponding day, it shall end on the last Banking Day in such next calendar month and (b) if such numerically corresponding day is not a Banking Day, the period shall end on the next following Banking Day in the same calendar month but if there is no such Banking Day it shall end on the preceding Banking Day and "months" and "monthly" shall be construed accordingly; "Mortgage" means the mortgage of the Aircraft granted or to be granted by the Lessor in favour of the Lender as security for the Lessor's obligations to the Lender in respect of financing of the Aircraft; "Parent" means The CIT Group/Equipment Financing Inc. of 1211 Avenue of the Americas, New York, N.Y. 10036; "Parent Guarantee" means a guarantee given or to be given by the Parent in favour of the Lessee in connection with the Lessor's obligations under the Lessee Documents, in form and substance reasonably satisfactory to the Lessee; "Part" means all appliances, parts, accessories, instruments, navigational and communications equipment, furnishings, modules, components and other items of equipment (other than complete Engines or engines), which may from time to time be incorporated or installed in or attached to the Airframe or any Engine; "Payment Date" means, subject to clause 8.2, the Delivery Date and each of the dates falling at successive one (1) monthly intervals thereafter throughout the Lease Period; 6 "Permitted Air Carrier" means any air carrier which is licenced under applicable aviation laws and (a) which is not in bankruptcy or subject to insolvency proceedings and which is listed in part 1 of schedule 5, or (b) any Affiliate of the Lessee or (c) any other air carrier which the Lessor shall approve in writing (such approval not to be unreasonably withheld or delayed); "Permitted Country" means any of the countries listed in part 2 of schedule 5 or any other country which the Lessor shall approve; "Permitted Lien" means in respect of the Aircraft or any Engine:- (a) the Assignment, the Mortgage and this Agreement; (b) any Encumbrance for Taxes either not yet assessed or, if assessed, not yet due and payable or being contested in good faith by appropriate proceedings (and for the payment of which adequate reserves have been set aside) so long as any such proceedings or the continued existence of such Encumbrance do not involve the likelihood of the sale, forfeiture or loss of, or of any interest in, the Aircraft or any Engine; (c) airports, air navigation authorities', airport hangar keepers', mechanics', material men's, carriers', employees' or other similar Encumbrances arising in each case, in the ordinary course of business by statute or by operation of law in respect of obligations which are not overdue or which are being contested in good faith by appropriate proceedings (and for the payment of which adequate reserves have been provided) so long as any such proceedings or the continued existence of such Encumbrance do not involve the likelihood of the sale, forfeiture or loss of, or of any interest in, the Aircraft or any Engine; (d) Encumbrances (other than Encumbrances for Taxes) arising out of judgments or awards against the Lessee or any Permitted Air Carrier having possession of the Aircraft with respect to which at the time an appeal is being presented in good faith and with respect to which there shall have been secured a stay of execution pending that appeal so long as any such Encumbrance does not involve any likelihood that the Interests of the Lessor in the Airframe, any Engine or any Part will be adversely affected; and (e) the rights of any other person under agreements or arrangements to the extent expressly permitted by the provisions of clause 13; "Primary Lease Term" means the period of five (5) years commencing from the time of Delivery; "Redelivery Location" means such of Arlanda Airport, Stockholm, Sweden or Copenhagen Airport, Copenhagen, Denmark or Fornebu Airport, Oslo, Norway 7 as the Lessee may designate or any other location as may be mutually agreed by the Lessee and the Lessor; "Relevant Event" means any Termination Event or any event which with the giving of notice or lapse of time or the satisfaction of any other condition (or any combination thereof) would constitute a Termination Event; "Relevant Rate of Interest" means the rate of interest which is two per cent. (2%) per annum above the rate quoted by Chemical Bank as its prime per annum rate for the period in respect of which the Relevant Rate of Interest falls to be determined; "Rent" means the instalments of Rent payable pursuant to clause 3.2 and clause 7.1(a) and schedule 3; "Replacement Engine" means an engine of the same manufacturer of the same or an improved model and suitable for use on the Airframe and which is in at least as good operating condition and of at least equivalent value and utility as the Engine to be replaced or, as the case may be, in respect of which an Engine Loss has occurred assuming that such Engine was in the condition and repair, except for normal wear and tear, required by the terms hereof immediately prior to the replacement of or, as the case may be, the occurrence of such Engine Loss; "Requisition Compensation" means all moneys or other compensation from time to time payable in respect of the Compulsory Acquisition of the Aircraft; "SAS BV" includes the successors, permitted assigns and permitted transferees of SAS BV; "Scandinavian Countries" means Denmark, Norway and Sweden; "Second Renewal Term" shall have the meaning ascribed thereto in clause 3.2; "State of Registration" means Norway or such other jurisdiction in which the Aircraft is from time to time registered in accordance with the terms of this Agreement; "Taxes" includes all present and future taxes, levies, imposts, duties, fees or charges of whatever nature, including, without limitation, any value added or similar tax, together with interest thereon and penalties in respect thereof and "Taxation" shall be construed accordingly; "Termination Date" means the date of termination of the leasing of the Aircraft hereunder pursuant to clause 21.1; "Termination Event" means any of the events or circumstances described in clause 20; and 8 "Total Loss" means any of the following events: (a) the actual or constructive total loss of the Aircraft (including any damage to the Aircraft which results in an insurance settlement on the basis of a total loss, or requisition for use or hire of the Aircraft which results in an insurance settlement on the basis of a total loss); (b) the Aircraft being destroyed, damaged beyond repair, or otherwise ceasing to be useable by an airline in the normal course of its business for a period exceeding one hundred and twenty (120) consecutive days; (c) the Compulsory Acquisition of the Aircraft; or (d) the hijacking, theft, confiscation, capture, detention, seizure or requisition for use or hire of the Aircraft, other than where the same amounts to Compulsory Acquisition of the Aircraft, which deprives the operator of the use of the Aircraft for more than ninety (90) consecutive days, excluding requisition for use or hire by any Government Entity of any Scandinavian Country; or (e) the requisition for use or hire of the Aircraft in the circumstances referred to in the second sentence of clause 18.5 hereof; "Warranties" means, at any time, all warranties and indemnities given by any manufacturer or supplier of any part of the Aircraft to the Lessee which are assignable either without consent or, if consent is required, in respect of which such consent has been obtained by the Lessee and held by the Lessee at such time; "Warranties Assignment" means the assignment executed or to be executed by the Lessor and the Lessee assigning in favour of the Lessor the Warranties. 1.2 Clause headings and the table of contents are inserted for convenience of reference only and shall be ignored in the interpretation of this Agreement. 1.3 In this Agreement, unless the context otherwise requires: (a) references to clauses and schedules are to be construed as references to the clauses of, and schedules to, this Agreement and references to this Agreement include schedules; (b) references to (or to any specified provision of) this Agreement or any other document shall be construed as references to this Agreement, that provision or that document as in force for the time being and as amended in accordance with the terms thereof or, as the case may be, with the agreement of the relevant parties and (where such consent is, by the terms of this Agreement or the relevant document required to be 9 obtained as a condition to such amendment being permitted) the prior written consent of the Lessor and the Lessee; (c) references to a "regulation" include any present or future regulation, rule, directive, requirement, request or guideline (whether or not having the force of law) of any agent, authority, central bank or governmental department or any self-regulatory or other supra-national authority; (d) reference to a "consent" also includes an approval, authorisation, exemption, filing, licence, order, permission, recording or registration; (e) words importing the plural shall include the singular and vice versa; (f) references to a person shall be construed as including, references to an individual, firm, partnership, consortium, joint venture, association, company, corporation, joint-stock company, unincorporated body of persons and any Government Entity; and (g) references to any enactment shall be deemed to include references to such enactment as re-enacted, amended or extended. 2 Representations and Warranties 2.1 The Lessee represents and warrants to the Lessor that: (a) the Lessee is a consortium established by the Consortium Agreement and is regarded as a legal entity under the laws of the Scandinavian Countries with full power and authority (corporate and other) to conduct its operations as presently conducted, to own its properties and to execute and deliver, and to perform all of its obligations under, this Agreement and any other Lessee Document; (b) DDL, DNL and ABA are jointly and severally liable as against third parties for the obligations and liabilities of the Lessee (including the Lessee's obligations to the Lessor under this Agreement and the other Lessee Documents) except as the same may be limited by operation of law and applicable bankruptcy, insolvency, reorganisation, moratorium or other similar laws affecting the rights of creditors generally; (c) this Agreement and each other Lessee Document has been duly authorised by the Lessee and the Lessee Documents constitute or will when executed and delivered constitute valid and legally binding obligations of the Lessee, enforceable in accordance with their terms except as such enforceability may be limited by bankruptcy, insolvency, reorganisation, moratorium, liquidation or similar laws affecting the rights of creditors generally and except as enforceability may be subject to general principles of equity, whether asserted in proceedings in equity or at law; 10 (d) the execution and delivery of, the performance of its obligations under, and compliance by the Lessee with the provisions of, the Lessee Documents will not (i) contravene any existing applicable law, statute, rule or regulation or any judgment, decree or permit to which the Lessee is subject, (ii) conflict with, or result in any breach of any of the terms of, or constitute a default under, any agreement or other instrument to which the Lessee is a party or is subject or by which it or any of its property is bound, or (iii) contravene or conflict with any provision of the Lessee's constitutional documents; (e) except for registration of the Aircraft with the Aviation Authority, no further action, including any filing or recording of any document, is necessary in order to establish and perfect the Lessor's title to and interest in the Aircraft, in any applicable jurisdiction in the Scandinavian Countries; (f) no litigation, arbitration or administrative proceeding is taking place, pending or to its knowledge threatened against the Lessee which could have a material adverse effect on the Lessee's ability to perform its obligations under the Lessee Documents; (g) the audited financial statements of the Lessee for the financial year ended on 31st December, 1992 certified by independent auditors of recognised standing in the Scandinavian Countries as delivered to the Lessor have been prepared in accordance with International Accounting Standards which have been consistently applied, and, as at such date, the Lessee did not have any significant liabilities (contingent or otherwise) or any unrealised or anticipated losses which are not disclosed by, or reserved against in, such financial statements; (h) save for the registration of the Aircraft with the Aviation Authority on a permanent basis in the name of the Lessor and the issue of a permanent certificate of airworthiness by the Aviation Authority, it is not necessary to ensure the legality, validity, enforceability or admissibility in evidence of each of the Lessee Documents that any of them or any other instrument be notarised, filed, recorded, registered or enrolled in any court, public office or elsewhere in the Scandinavian Countries or that any stamp, registration or similar tax or charge be paid in the Scandinavian Countries on or in relation to any of the Lessee Documents and the Lessee Documents are in proper form for their enforcement in the courts of the Scandinavian Countries; (i) the choice by the Lessee of English law to govern this Agreement and the submission by the Lessee to the non-exclusive jurisdiction of the English courts is valid and binding; (j) the Lessee has received every consent, approval or authorisation of, and has given every notice to, each Government Entity having jurisdiction 11 with respect to the execution, delivery or performance of this Lease (including all monetary and other obligations hereunder) that is required for the Lessee to execute and deliver this Lease and each other Lessee Document to which it is a party, and to perform the transactions contemplated hereby and thereby and each such consent, approval or authorisation is valid and effective and has not been revoked; (k) the Lessee is subject to civil and commercial law with respect to its obligations under the Lessee Documents and the transactions contemplated thereby constitute private and commercial acts done for private and commercial purposes and neither the Lessee nor any of its assets is entitled to any immunity on the grounds of sovereignty or otherwise from any legal action or proceeding (which shall include, without limitation, suit, attachment prior to judgment, execution or other enforcement). 2.2 SAS BV represents and warrants to the Lessor that: (a) it is duly organised and existing under the laws of the Netherlands as a limited liability company and has full power and authority (corporate and other) to conduct its operations as presently conducted, to own its properties and to execute and deliver, and to perform all of its obligations under, this Agreement; (b) this Agreement has been duly authorised by SAS BV and this Agreement constitutes valid and legally binding obligations of SAS BV enforceable in accordance with their terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganisation, moratorium, liquidation or similar laws affecting the rights of creditors generally and except as enforceability may be subject to general principles of equity, whether asserted in proceedings in equity or at law; (c) the execution and delivery of, the performance of its obligations under, and compliance by SAS BV with the provisions of, this Agreement will not (i) contravene any existing applicable law, statute, rule or regulation or any judgement, decree, permit or consent to which SAS BV is subject or which is in force in relation to SAS By, (ii) conflict with, or result in any breach of any of the terms of, or constitute a default under, any agreement to which SAS BV is a party or is subject or by which it or any of its property is bound, or (iii) contravene or conflict with any provision of SAS BV's constitutional documents; (d) no litigation, arbitration or administration proceeding is taking place, pending or, to its knowledge, threatened against SAS BV which could have a material adverse effect on SAS BV's ability to perform its obligations under this Agreement; 12 (e) the choice by SAS BV of English law to govern this Agreement and the submission by SAS BV to the non-exclusive jurisdiction of the English courts is valid and binding; (f) SAS BV has received every consent, approval or authorisation of, and has given every notice to, each Government Entity having jurisdiction with respect to the execution, delivery or performance of this Lease (including all monetary and other obligations hereunder) that is required for SAS BV to execute and deliver this Lease, and to perform the transactions contemplated hereby and each such consent, approval or authorisation is valid and effective and has not been revoked; (g) SAS BV is subject to civil and commercial law with respect to its obligations under this Lease and the transactions contemplated hereby constitute private and commercial acts done for private and commercial purposes and neither SAS BV nor any of its assets is entitled to any immunity on the grounds of sovereignty or otherwise from any legal action or proceeding (which shall include, without limitation, suit, attachment prior to judgment, execution or other enforcement). 2.3 The Lessor hereby represents and warrants to the Lessee that: (a) it is duly organised and existing under the laws of Bermuda as a limited liability company and has all requisite corporate power and authority to enter into and perform its obligations under this Agreement and the other Lessee Documents to which it is or will be a party; (b) the execution, delivery and performance of this Agreement and the other Lessee Documents to which it is or will be a party, have been duly authorised by all necessary corporate action on its part and each of this Agreement and such other Lessee Documents to which it is or will be a party constitutes or, when so executed and delivered, will constitute its legal, valid and binding obligation; (c) the execution and delivery of, the performance of its obligations under, and compliance by the Lessor with the provisions of the Lessee Documents to which it is or will be a party will not (i) contravene any existing applicable law, statute, rule or regulation or any judgment, decree or permit to which the Lessor is subject, (ii) conflict with, or result in any breach of any of the terms of, or constitute a default under, any agreement or other instrument to which the Lessor is a party or is subject or by which it or any of its property is bound, or (iii) contravene or conflict with any provision of the Lessor's constitutional documents; (d) no litigation, arbitration or administrative proceeding is taking place, pending or to its knowledge threatened against the Lessor which would have a material adverse effect on its liability to perform its obligations 13 under this Agreement or any other Lessee Document to which it is or will be a party; (e) no consent of, giving of notice to, or registration with, or taking of any other action in respect of, any governmental or other competent authority or agency of Bermuda or the United States of America is required to be obtained, given, made or taken by it in connection with the execution, delivery, performance, validity or enforceability of this Agreement or any other Lessee Document to which the Lessor is or will be a party or the carrying out by it of any of the transactions contemplated hereby or thereby; and (f) the choice by the Lessor of English law to govern this Agreement and the submission to jurisdiction of the Lessor to the non-exclusive jurisdiction of the English courts is valid and binding. 2.4 The Lessor hereby represents, warrants, covenants and undertakes to the Lessee that at all times throughout the Lease Term: (a) without prejudice to any rights the Lessor may have under clause 23.2, and except as otherwise may be required by applicable law, it shall maintain and preserve its status as a Bermuda tax exempt company; and (b) without prejudice to any rights the Lessor may have under clause 23.2 and save for as a result of any transfer of stock or shares in the Lessor expressly permitted pursuant to the terms of the Parent Guarantee, the issued share capital of, and the voting rights in, the Lessor will be majority owned, directly or indirectly, by the Parent. 3 Term of Lease 3.1 The Lessor shall lease and the Lessee shall take on lease the Aircraft, subject to the terms and conditions of this Agreement, for the Lease Term. 3.2 The Lessee shall be entitled, provided that no Termination Event has occurred and is continuing, on giving to the Lessor notice (which notice, when given shall be irrevocable) not less than one hundred and eighty (180) days prior to the end of the Primary Lease Term to extend the Lease Term for one (1) further year (the "First Renewal Term"). During the First Renewal Term the Lessee shall be entitled, provided that no Termination Event has occurred and is continuing, on giving to the Lessor notice (which notice, when given shall be irrevocable) not less than one hundred and eighty (180) days prior to the end of the First Renewal Term to extend the Lease Term for a second period of one (1) further year (the "Second Renewal Term"). During each of the First and Second Renewal Terms the provisions of this Agreement shall remain in full force and effect, save that rent payable by the Lessee shall be determined in accordance with the provisions of clause 7. 1(b). 14 4 Conditions 4.1 The obligation of the Lessor to lease the Aircraft to the Lessee under this Agreement is subject to the condition that, on or prior to Delivery, the Lessor shall have received the documents and evidence specified in Parts 1 and 2 of schedule 1 in form and substance satisfactory to the Lessor. 4.2 The obligation of the Lessor to lease the Aircraft to the Lessee under this Agreement is subject to the further conditions that:- (a) the Aircraft shall have been delivered to the Lessor and the Lessor shall have received a bill of sale from the Lessee dated the Delivery Date; (b) all necessary governmental and other third party consents or approvals required to permit the Lessor to lease the Aircraft to the Lessee shall have been received by the Lessor; (c) the representations and warranties of (i) the Lessee set out in clause 2.1 and in the Aircraft Purchase Agreement and (ii) SAS BV set out in clause 2.2, are true and correct as if each were made with respect to the facts and circumstances existing immediately prior to the time when Delivery is to take place; (d) the Lessor shall have received an appraisal of the fair market value of the Aircraft performed by Aircraft Information Services, Inc. which the Lessor, notwithstanding the terms of this clause 4.2, acknowledges and confirms it has received and that such appraisal is acceptable to it in form and substance; (e) no Relevant Event shall have occurred and be continuing or would arise by reason of Delivery taking place; and (f) the Lessor shall have received written notice from the Lessee at least one (1) Banking Day prior to Delivery specifying the Delivery Date, the serial numbers of the Engines being delivered pursuant to the Aircraft Purchase Agreement and confirming the amount of the instalments of Rent to be paid pursuant to clause 7.1(a). 4.3 The obligation of the Lessee to take the Aircraft on lease under this Agreement is subject to the condition that, prior to Delivery, the Lessee shall have received the documents and evidence specified in Part 3 of schedule 1 in form and substance satisfactory to the Lessee. 4.4 The obligation of the Lessee to take the Aircraft on lease under this Agreement is subject to the further conditions that: (a) the representations and warranties of the Lessor in clauses 2.3, 2.4, 6.1 and 6.2 shall be true and correct as if each was made with respect to the 15 facts and circumstances existing immediately prior to the time when Delivery is to take place; (b) no Total Loss or Engine Loss shall have occurred on or prior to Delivery; (c) Delivery shall have occurred. 5 Delivery and Acceptance 5.1 Subject to clause 4, immediately following the transfer of title to the Aircraft by the Lessee to the Lessor under the Aircraft Purchase Agreement, the Aircraft shall be deemed to have been delivered to the Lessee by the Lessor and accepted by the Lessee for the purposes of this Agreement and the Lessee shall execute and deliver the Acceptance Certificate to the Lessor and the Lease Period shall commence. 5.2 The Lessor and the Lessee acknowledge that the condition, quality, suitability and fitness for purpose of the Aircraft at Delivery shall be the sole responsibility of the Lessee, and the Lessor shall not, subject to clause 4.1 and clause 4.2, be entitled for any reason whatsoever to refuse to deliver, and the Lessee shall not, subject to clause 4.3 and clause 4.4, be entitled for any reason whatsoever to refuse to accept delivery of the Aircraft or to refuse to execute and deliver the Acceptance Certificate for the Aircraft to the Lessor once the Aircraft is deemed to have been delivered to and accepted by the Lessor under the Aircraft Purchase Agreement. The Lessor shall not be liable for any loss or damage of any kind whatsoever, or any loss of profit, resulting directly or indirectly from any physical defect or alleged physical defect in the Aircraft. 5.3 The Lessor shall not be responsible to the Lessee for any loss or expense, or any loss of profit, arising from any delay in the delivery of, or failure to deliver, the Aircraft to the Lessee under this Agreement unless such delay or failure arises as a direct consequence of the wilful default or gross negligence of the Lessor. 5.4 The Lessee shall not be responsible to the Lessor for any loss or expense, or any loss of profit arising from any delay in the delivery of, or failure to deliver, the Aircraft to the Lessor under the Aircraft Purchase Agreement or to the Lessee under this Agreement where such delay or failure is not caused by a breach by the Lessee of its obligations under the Aircraft Purchase Agreement or this Agreement. 5.5 If for any reason, other than a breach by the Lessor of any of its obligations under the Lessee Documents to which it is a party, the Aircraft shall not have been delivered to and accepted by the Lessee in accordance with clause 5.1 within sixty (60) days following the Expected Delivery Date, or such later date as the Lessor and the Lessee may agree in writing, then the Lessor may, without prejudice to any other rights or remedies which the Lessor may have at law, in 16 equity or otherwise, cancel the obligation contained in this Agreement to lease the Aircraft to the Lessee by the Lessor giving notice to the Lessee to that effect whereupon the Lessee's obligation to pay Rent and to lease the Aircraft under this Agreement shall immediately terminate. 5.6 If, for any reason, other than a breach by the Lessee of any of its obligations under the Lessee Documents, the Aircraft shall not have been delivered to and accepted by the Lessee in accordance with clause 5.1 within sixty (60) days following the Expected Delivery Date or such later date as the Lessor and the Lessee may agree in writing, then the Lessee may, without prejudice to any other rights or remedies which the Lessee may have at law, in equity or otherwise, cancel the obligation contained in this Agreement to lease the Aircraft from the Lessor by giving notice to the Lessor to that effect whereupon the Lessee's obligation to pay Rent and to lease the Aircraft under this Agreement shall immediately terminate. 5.7 As soon as practicable after Delivery, but in any event within five (5) Banking Days, the Lessee shall provide the Lessor with details of the status of each Engine delivered to the Lessor pursuant to the Aircraft Purchase Agreement. 6 Lessor's Warranties and Manufacturer's Warranties 6.1 The Lessor warrants and undertakes that, subject to clause 17.1 and clause 21, the Lessor shall not through its own acts interfere during the Lease Period with the use, possession and quiet enjoyment of the Aircraft by the Lessee or any Permitted Air Carrier. For avoidance of doubt, the Lessee acknowledges and agrees that, notwithstanding the foregoing, if the Lessor is entitled in accordance with the provisions of this Agreement to interfere with the use, possession and quiet enjoyment of the Aircraft by the Lessee, the Lessor shall also be entitled to interfere with the use, possession and quiet enjoyment of the Aircraft by any Permitted Air Carrier. 6.2 The Lessor warrants that on the Delivery Date the Lessor shall have received such title to the Aircraft as is conveyed to it on such date by, or on behalf of, the Lessee and the Aircraft shall be free from Lessor's Liens. 6.3 THE LESSEE EXPRESSLY AGREES AND ACKNOWLEDGES THAT, SAVE ONLY AS EXPRESSLY PROVIDED IN CLAUSES 6.1 AND 6.2, NO CONDITION, WARRANTY OR REPRESENTATION OF ANY KIND IS OR HAS BEEN GIVEN BY OR ON BEHALF OF THE LESSOR IN RESPECT OF THE AIRCRAFT OR ANY PART THEREOF, AND ACCORDINGLY THE LESSEE CONFIRMS THAT IT HAS NOT, IN ENTERING INTO THIS AGREEMENT, RELIED ON ANY CONDITION, WARRANTY OR REPRESENTATION BY THE LESSOR OR ANY PERSON ON THE LESSOR'S BEHALF, EXPRESS OR IMPLIED, WHETHER ARISING BY LAW OR OTHERWISE IN RELATION TO THE AIRCRAFT OR ANY PART THEREOF, INCLUDING, WITHOUT LIMITATION, (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR 17 PURPOSE, VALUE, CONDITION, DESIGN, USE OR OPERATION OF THE AIRCRAFT; (B) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE FOR TRADE; (C) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE ACTUAL OR IMPUTED NEGLIGENCE OR BREACH OF STATUTORY DUTY ON THE PART OF THE LESSOR, ITS DIRECTORS, SERVANTS OR AGENTS; AND (D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY OR LOSS OF OR DAMAGE TO ANY TANGIBLE OR INTANGIBLE THING, FOR LOSS OF USE, REVENUE OR PROFIT OR FOR ANY LIABILITY OF THE LESSOR TO ANY THIRD PARTY, OR FOR ANY OTHER DIRECT OR INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES. 6.4 During the Lease Period the Lessor will use all reasonable endeavours to extend to the Lessee the benefit of all Warranties and all warranties and indemnities given by any manufacturer or supplier of any part of the Aircraft to the Lessor (as owner of the Aircraft), if any. Provided no Termination Event has occurred and is continuing, the Lessee shall be entitled during the Lease Period to take such action upon any Warranty or any such warranty or indemnity in the name of the Lessor against any such manufacturer or supplier as the Lessee shall see fit, but subject to the Lessee first ensuring that the Lessor is indemnified and secured to its reasonable satisfaction against all costs and expenses thereby incurred or to be incurred. 6.5 The Lessee agrees to assign, promptly after the Lessee becomes aware it has received the same, to the Lessor or its nominee, the benefit of all Warranties that are given to the Lessee during the Lease Period by any manufacturer or supplier of any part of the Aircraft. 7 Rent 7.1 (a) During the Primary Lease Term SAS BV shall pay to the Lessor instalments of Rent for the Aircraft monthly in advance, each such instalment, subject to the remainder of this clause 7.1(a), being of the amount of Six hundred and seventy five thousand Dollars ($675,000). The instalments of Rent payable during the Primary Lease Term will be subject to amendment, either upward or downward, to reflect the four (4) year Treasury Rate of the United States of America (the "US Treasury Rate") in effect one (1) Banking Day before the Delivery Date. The amount of the instalments of Rent specified above is calculated by reference to the US Treasury Rate as of 9th November, 1993 which had a yield to maturity of 4.63%. The actual instalments of Rent payable during the Primary Lease Term will be adjusted by reference to the yield to maturity of the US Treasury Rate having a remaining term to maturity closest to four (4) years as at 11.00am (New York time) on the date being one (1) Banking Day before the Delivery Date as reported on pages 5 and 217 ("US Treasury and Money Markets") of the information ordinarily provided by Telerate Systems 18 Incorporated, it being agreed that, for every basis point movement in such yield, the instalments of Rent will be increased or, as the case may be, decreased by the amount of $391.50; provided however, that in the event the exact maturity of four (4) years is not so quoted, the yield will be derived by interpolating on a straight line basis the yield for the nearest quoted maturity shorter and longer than four (4) years. (b) The instalments of Rent to be paid during the First Renewal Term and the Second Renewal Term shall be calculated by reference to the formula set out in schedule 3. If the Lessee requests that such calculation be made, the Lessor, the Lessee and SAS BV agree that such calculation shall be made not less than one hundred and eighty (180) days and not more than two hundred and seventy (270) days prior to the end of the Primary Lease Term or, as the case may be, the First Renewal Term. 7.2 SAS BV's obligation to pay Rent and the other amounts referred to in clause 7.3 and the Lessee's obligation to make other payments in accordance with this Agreement shall be absolute and unconditional irrespective of any contingency whatsoever including (but not limited to): (a) any unavailability of the Aircraft for any reason, including, but not limited to, any lack or invalidity of title or any other defect in the title, airworthiness, merchantability, fitness for any purpose, condition, design or operation of any kind or nature of the Aircraft; or (b) the ineligibility of the Aircraft for any particular use or trade, or for registration or documentation under the laws of any relevant jurisdiction; or (c) subject to clause 17.4, the Total Loss of, or any damage to, the Aircraft; or (d) any failure or delay on the part of any party hereto, whether with or without fault on its part, in performing or complying with any of the terms or conditions of this Agreement; or (e) any insolvency, bankruptcy, administration, reorganisation, arrangement, readjustment of debt, dissolution, liquidation or similar proceedings by or against the Lessor, the Lessee, SAS BV or any Permitted Air Carrier; or (f) any lack of due authorisation of, or other defect in, this Agreement. Nothing in this clause 7.2 shall prejudice the rights of the Lessee and/or SAS BV to pursue a separate action against the Lessor under applicable law with respect to any breach by the Lessor of any of its covenants, obligations, agreements or undertakings under this Agreement. 19 7.3 The Lessor and the Lessee each acknowledges and agrees that, notwithstanding anything to the contrary contained in this Agreement, the obligations of SAS BV under this Agreement shall be limited to, and neither the Lessor nor the Lessee shall have any recourse against SAS BV except in respect of, the obligation of SAS BV to pay Rent pursuant to this clause 7 in accordance with clauses 8.1, 8.2 and 8.5 and payment obligations pursuant to clauses 8.3, 8.6, 10, 17.4, 18.5 and 21.1 but only to the extent that such payment obligations directly relate to, or arise as a direct result of, payment or non-payment of Rent by or on behalf of SAS BV. 8 Payments, Interest and Calculations 8.1 All payments to be made by the Lessee or SAS BV to the Lessor under any Lessee Document shall be made (unless specifically otherwise provided in such Lessee Document) without prior demand in such currency as is designated for such payment for value on the day on which payment is due to the account of the Lessor at Chemical Bank, 640 Madison Avenue, New York, New York 10022, account number 323-252-907, ABA number 021-000-128 quoting the reference "SAS-767-24475" and marked for the attention of CEF/IMG or at such other bank in such other place as the Lessor may have notified to SAS BV and the Lessee. 8.2 When any payment under any Lessee Document would otherwise be due to the Lessor on a day which is not a Banking Day, the due date for payment shall be extended to the next following Banking Day. 8.3 If the Lessee or SAS BV fails to pay to the Lessor any sum (including without limitation, any sum payable pursuant to this clause 8.3) on its due date for payment under this Agreement, the Lessee or, as the case may be, SAS BV shall pay to the Lessor on demand interest on such sum from the due date up to the date of actual payment (as well after as before any relevant judgment) at the Relevant Rate of Interest. 8.4 All interest and other payments of an annual nature under this Agreement shall accrue from day to day and be calculated on the basis of actual days elapsed and a 360 day year. 8.5 Any certificate or determination of the Lessor as to any rate of interest or any other amount pursuant to and for the purposes of this Agreement shall be prima facie evidence as to the rate or amount so certified or determined. 8.6 If any sum due from the Lessee or SAS BV under any Lessee Document or under any order or judgment given or made in relation thereto has to be converted from the currency ("the first currency") in which the same is payable under such Lessee Document or under such order or judgment into another currency ("the second currency") for the purpose of (a) making or filing a claim or proof against the Lessee or SAS BV, (b) obtaining an order or judgment in any court or other tribunal or (c) enforcing any order or judgment 20 given or made in relation to such Lessee Document, the Lessee or, as the case may be, SAS BV shall indemnify and hold harmless the Lessor from and against any loss suffered as a result of any difference between (i) the rate of exchange used for such purpose to convert the sum in question from the first currency into the second currency and (ii) the rate or rates of exchange at which the Lessor may in the ordinary course of business purchase the first currency with the second currency upon receipt of a sum paid to it in satisfaction, in whole or in part, of any such order, judgment, claim or proof. Any amount due from the Lessee or SAS BV under this clause 8.6 shall be due as a separate debt and shall not be affected by judgment being obtained for any other sums due under or in respect of such Lessee Document and the term "rate of exchange" includes any premium and costs of exchange payable in connection with the purchase of the first currency with the second currency. 9 Costs and Indemnities 9.1 Subject to the exclusions stated in clause 9.2, the Lessee agrees to indemnify and hold harmless the Lessor and its shareholders, affiliates, directors, officers, servants, agents and employees (each such person in this clause 9 being referred to as an "Indemnitee") from and against all costs, expenses, payments, charges, losses, demands, liabilities, claims, actions, proceedings, penalties, fines, damages, judgments, orders or other sanctions (in this clause 9 together referred to as "Losses"): (a) relating to, or arising directly or indirectly in any manner or for any cause or reason whatsoever out of, the design, manufacture, testing, delivery, purchase, import, export, registration, possession, control, use, operation, leasing, sub-leasing, insurance, maintenance, repair, refurbishment, condition, service, overhaul, modification, change, alteration, loss, damage, removal, storage, re-delivery or replacement of, in or to the Aircraft, or otherwise in connection with the Aircraft, or relating to loss or destruction of or damage to any property, or death or injury of, or other loss of whatsoever nature suffered by, any person caused by, relating to, or arising from or out of (in each case whether directly or indirectly) any of the foregoing matters; (b) which may at any time be made or brought on the ground that any design, article or material in the Aircraft or the operation or use thereof constitutes an infringement of any patent, intellectual property right or any other right whatsoever; (c) which may at any time be incurred by the Lessor in preventing or attempting to prevent the arrest, confiscation, seizure, taking in execution, impounding, forfeiture or detention of the Aircraft, or in securing the release of the Aircraft; (d) which the Lessor shall certify as sustained or incurred by it as a consequence of any default in payment by SAS BV or the Lessee or the 21 due and punctual performance of any of the Lessee's other obligations under any of the Lessee Documents or as a consequence of the breach by the Lessee or SAS BV of any representation, warranty or covenant made by the Lessee or SAS BV under any Lessee Document; or (e) without prejudice to clause 9.2, which the Lessor or any Indemnitee shall certify as sustained or incurred by it as a consequence of the Lessor entering into, or performing its obligations under, the Lessee Documents, but excluding Losses which represent or relate to obligations expressly agreed to be performed by the Lessor thereunder and further excluding, but without prejudice to paragraph (d) above, any Losses which represent or relate to obligations or liabilities of the Lessor or any Indemnitee under any contract or agreement with any third party. Provided always that the Lessee shall be entitled, at its sole cost and expense, acting through counsel reasonably acceptable to the respective Indemnitee, (a) in any judicial or administrative proceeding that involves solely a claim for one or more Losses, to assume responsibility for and control thereof, (b) in any judicial or administrative proceeding involving a claim for one or more Losses and other claims related or unrelated to the transactions contemplated by this Lease, to assume responsibility for and control of such claim for Losses to the extent that the same may be and is severed from such other claims (and such Indemnitee shall use its best efforts to obtain such severance), and (c) in any other case, to be consulted by such Indemnitee with respect to judicial proceedings subject to the control of such Indemnitee. Notwithstanding any of the foregoing to the contrary, the Lessee shall not be entitled to assume responsibility for and control of any such judicial or administrative proceedings (i) while a Relevant Event under the Lease shall have occurred and be continuing, (ii) if such proceedings would involve the likelihood of the sale, forfeiture or loss of, or the creation of any Encumbrance (other than a Permitted Lien) on the Aircraft (except an Encumbrance which the Lessee shall have bonded in an amount and manner satisfactory to the Lessor), this Lease or any part thereof, (iii) if such claim relates in any way to the business of such Indemnitee other than the transactions contemplated by the Lessee Documents, (iv) if such claim, in the opinion of independent counsel for such Indemnitee reasonably satisfactory to the Lessee, has a reasonable possibility of compromising or jeopardising any substantial interests of such Indemnitee, or (v) the Lessee shall not have furnished such Indemnitee with an opinion of independent counsel reasonably satisfactory to such Indemnitee to the effect that there exists a meritorious basis for contesting such claim. The Indemnitee may at its own cost participate with its own counsel in any judicial proceeding controlled by the Lessee pursuant to the preceding provisions. The Indemnitee shall supply the Lessee with such information reasonably requested by the Lessee as is necessary or advisable for the Lessee to control or participate in any proceeding to the extent permitted by this clause 9.1. Such Indemnitee shall not enter into a settlement or other compromise with respect to any Losses without the prior written consent of the Lessee, which consent shall not be 22 unreasonably withheld or delayed, unless such Indemnitee waives its right to be indemnified with respect to such Losses under this clause 9.1. 9.2 Notwithstanding the provisions of clause 9.1, the Lessee shall not be responsible pursuant to clause 9.1 to any Indemnitee for: (a) Losses arising or imposed to the extent the same result from the breach by such Indemnitee of any express provisions of, or the default of such Indemnitee in its performance of any of its obligations under, this Agreement or any other Lessee Document to which the Indemnitee is a party or result from any representation or warranty given or made by such Indemnitee in this Agreement or any other Lessee Document to which the Indemnitee is a party being incorrect at the date when given or made, or any wilful default, fraud or gross negligence of such Indemnitee; (b) Losses arising or imposed to the extent the same result from the sale, transfer or other disposition of the Aircraft, the Airframe, any Engine or any Part or any interest in the Aircraft, the Airframe, any Engine or any Part, other than (i) as contemplated by this Agreement or any other Lessee Document, or (ii) pursuant to the exercise by the Lessor of any of its rights pursuant to clause 21.1; (c) Losses to the extent the same arise out of any claim of title to or against the Aircraft, the Airframe, any Engine or any Part by any creditor of such Indemnitee claiming in its capacity as such, other than a claim arising as a result of any breach by the Lessee or SAS BV of any provision of, or the default by the Lessee or SAS BV in its performance of any of its obligations under, this Agreement or, in the case of the Lessee, the Aircraft Purchase Agreement; (d) Losses arising from or attributable to acts or events occurring after the latest to occur of (i) the termination or expiry of the Lease Term, (ii) if the Lessee is required to return the Aircraft to the Lessor, the date on which the Aircraft is returned to the Lessor in accordance with the provisions hereof, and (iii) if the leasing of the Aircraft under this Agreement shall have been terminated pursuant to clause 21.1, the sale, transfer or other disposition of the Aircraft, the Airframe, any Engine or any Part or any interest in the Aircraft, the Airframe, any Engine or any Part; or (e) except to the extent necessary to make payments on an after-tax basis, Losses resulting from or arising out of any Taxes or a loss of Tax benefits or increase in Tax liability whether or not the Lessee or SAS BV is required to indemnify any person therefor pursuant to clause 10 (it being understood that clause 10 provides for the Lessee's and SAS BV's liability with respect to Taxes) and any other Losses against which the 23 Lessee shall have indemnified such Indemnitee pursuant to any other provision of this Agreement or any other Lessee Document; or (f) Losses caused by any Lessor's Lien; or (g) except as otherwise expressly provided herein, Losses which relate to legal, accounting or other expenses incurred by any Indemnitee or the Parent in connection with the negotiation, preparation and execution of any Lessee Document; or (h) without prejudice to clause 9. 1(d), Losses which are operating or overhead expenses of any Indemnitee. 9.3 The Lessee shall pay all stamp, documentary, registration or other like Taxes (including any such Taxes payable by the Lessor) imposed on or in connection with the Lessee Documents by any country or jurisdiction other than in Bermuda, the United States of America and any other jurisdiction in which the Lessor has a place of business (excluding however any jurisdiction in which the Lessor would not have been deemed to have a place of business had it not entered into and/or performed its obligations under the Lessee Documents). 9.4 The Lessee shall pay to the Lessor on demand all expenses (including legal, survey and other costs) incurred by the Lessor in connection with the enforcement of, or preservation of any rights under, any of the Lessee Documents, or otherwise in respect of moneys owing under any of the Lessee Documents, or in respect of breach of any representation, warranty, covenant, agreement, condition or stipulation therein contained, together with interest at the Relevant Rate of Interest from the date on which such expenses were incurred to the date of payment (as well after as before judgment). All expenses payable pursuant to this clause 9.4 shall be paid together with any value added tax or similar tax thereon (if any), and in the currency in which the same are incurred by the Lessor. 9.5 Subject always to clause 9.2, the indemnities by the Lessee in favour of the Lessor contained in this clause 9 shall continue in full force and effect notwithstanding the termination of the leasing of the Aircraft to the Lessee under this Agreement. 10 Taxation 10.1 Subject to clauses 10.3, 10.4 and 10.5, the Lessee or, in the case of the subject matter of paragraph (b) below (but only in so far as the same relate to payments made by SAS BV under this Agreement) SAS BV, shall pay promptly and shall indemnify and hold harmless each Indemnitee on an after-tax basis for and against all Taxes (a) levied or assessed on or in respect of the Aircraft, or (b) levied or assessed in respect of any payments made under any of the Lessee Documents or any of the transactions contemplated by any of the Lessee 24 Documents or (c) relating to or arising out of the ownership, possession, leasing, sub-leasing, use, delivery, operation or return of the Aircraft. 10.2 Subject to clauses 10.3, 10.4 and 10.5, if at any time the Lessee or SAS BV is required to make any deduction or withholding in respect of Taxes from any payment due under the Lessee Documents for the account of the Lessor: (a) the sum due from the Lessee or, as the case may be, SAS BV in respect of such payment shall be increased to the extent necessary to ensure that, after the making of such deduction or withholding, the Lessor receives on the due date for such payment (and retains, free from any liability in respect of such deduction or withholding) a net sum equal to the sum which it would have received had no such deduction or withholding been required to be made; (b) the Lessee or, as the case may be, SAS BV shall pay to the relevant authority within the period for payment permitted by applicable law the full amount of the deduction or withholding (including, but without prejudice to the generality of the foregoing, the full amount of any deduction or withholding from any increased amount paid pursuant to this clause 10.2); (c) the Lessee or, as the case may be, SAS BV shall indemnify the Lessor against any losses or costs incurred by the Lessor by reason of any failure of the Lessee or SAS BV (as applicable) to make any such deduction or withholding or by reason of any increased payment not being made on the due date for such payment; and (d) the Lessee or, as the case may be, SAS BV shall promptly deliver to the Lessor any receipt, certificates or other proof evidencing the amounts (if any) paid or payable in respect of any deduction or withholding as aforesaid. 10.3 If, following any such deduction or withholding as is referred to in clause 10.2 from any payment by the Lessee or SAS BV, any Indemnitee shall receive or be granted a credit against or remission for any Taxes payable by it (other than Taxes the subject of an indemnity from the Lessee or SAS BV pursuant to this clause 10), the Lessor shall procure that such Indemnitee shall, subject to the Lessee or, as the case may be, SAS BV having made any increased payment in accordance with clause 10.2 and to the extent that such Indemnitee can do so without prejudicing the retention of the amount of such credit or remission and without prejudice to the right of such Indemnitee to obtain any other relief or allowance which may be available to it, reimburse the Lessee or SAS BV (as applicable) with such amount as such Indemnitee shall certify to be the proportion of such credit or remission as will leave such Indemnitee (after such reimbursement) in no worse position than it would have been in had there been no such deduction or withholding from the payment by the Lessee or SAS BV as aforesaid. Such reimbursement shall be made forthwith upon such 25 Indemnitee certifying that the amount of such credit or remission or economic benefit has been received by it. If any Indemnitee shall, for reasons outside its control, lose all or any portion of any credit in respect of which such Indemnitee shall have reimbursed the Lessee or SAS BV pursuant to this clause 10.3, the Lessee or, as the case may be, SAS BV shall refund to such Indemnitee all (or the appropriate portion of) such reimbursement. 10.4 The Lessor agrees that for so long as in the good faith opinion of the affected Indemnitee the rights and interests of such Indemnitee would not be adversely affected thereby: (a) the Lessor shall procure that such Indemnitee shall notify the Lessee and SAS BV prior to making payment of any Taxes in respect of which the Lessee or SAS BV is required to indemnify such Indemnitee pursuant to this clause 10 provided however that, without prejudice to the Lessee's or SAS BV's other rights in respect of such failure, the Lessor's failure to procure that such Indemnitee so notifies the Lessee and SAS BV shall not affect such Indemnitee's right to indemnification in respect of such Taxes hereunder; (b) the Lessor shall procure that such Indemnitee shall consult with the Lessee and SAS BV for a reasonable period not extending beyond the due date for payment of the relevant Taxes prior to making payment of any Taxes in respect of which the Lessee or SAS BV is required to indemnify such Indemnitee pursuant to this clause 10 provided that, without prejudice to the Lessee's or SAS BV's other rights in respect of such failure, the Lessor's failure to procure that such Indemnitee so consults shall not affect such Indemnitee's right to indemnification in respect of such Taxes hereunder; (c) if a claim is made against such Indemnitee for any Tax that is subject to indemnification under this clause 10, the Lessor shall procure that such Indemnitee will give the Lessee and SAS BV written notice of such claim provided that, without prejudice to the Lessee's or SAS BV's other rights in respect of such failure, the Lessor's failure to procure that such Indemnitee so notifies the Lessee shall not affect such Indemnitee's right to indemnification in respect of Taxes under this clause 10. If the Lessee or SAS BV (as applicable) so requests in writing within thirty (30) days after receipt of such notice, the Lessor shall procure that such Indemnitee shall permit the Lessee or SAS BV (as applicable) to contest the claim in the name of such Indemnitee or in the name of the Lessee or SAS BV (as applicable), to the extent permitted by law. However, if (i) such claim together with other claims which could be made with respect to other transactions to which such Indemnitee is then a party could (if sustained) have an adverse effect on such Indemnitee's business or financial affairs (a "Special Claim"), or (ii) the Lessee or SAS BV 26 (as applicable) shall not be permitted by law to contest a claim (other than a Special Claim) on behalf of such Indemnitee, or (iii) the contest of such claim includes the contest of claims unrelated to the transactions contemplated by this Lease, then the Lessor shall procure that such Indemnitee shall contest such claim in good faith. Notwithstanding the foregoing, no claim shall be contested by any of the Lessee, SAS BV or such Indemnitee unless and until (a) such Indemnitee shall have received (i) an indemnity for all reasonable expenses paid in contesting the claim (including reasonable attorneys' and accountants' fees and disbursements), and (ii) written acknowledgement by the Lessee or SAS BV (as applicable) of its liability hereunder (if such contest is decided adversely) in respect of such Taxes; (b) the action to be taken will not involve the likelihood of the sale, forfeiture or loss of, or the creation of any Encumbrance (except a Permitted Lien or an Encumbrance which the Lessee or SAS BV (as applicable) shall have bonded in an amount and manner reasonably satisfactory to the Lessor) on, the Aircraft or any part thereof or any interest therein; (c) if such contest shall be conducted in a manner requiring the payment of the claim, the Lessee or SAS BV (as applicable) shall have advanced the amount required on an after-tax basis; (d) no Termination Event shall have occurred and be continuing; and (e) if such claim is a Special Claim, such Indemnitee shall have received a legal opinion (at the expense of the Lessee or SAS BV (as applicable)) from counsel satisfactory to such Indemnitee indicating that a reasonable basis for such contest exists. The Lessor shall procure that any affected Indemnitee, the Lessee and SAS BV shall in good faith consider the other partys' views regarding the conduct of the contest. Notwithstanding the foregoing provisions of this clause 10, if at any time any Indemnitee waives its right of indemnification under this clause 10 in respect of a claim, or if, after having received payment of indemnification from the Lessee or SAS BV hereunder in respect of such claim, such Indemnitee tenders such payment to the Lessee or SAS BV (as applicable), then the Lessee or SAS BV (as applicable) shall not be entitled to contest, or to continue to contest, any such claim; (d) the Lessee or SAS BV (as applicable) will provide such information as may be reasonably requested by the Lessor and reasonably available to or obtainable by the Lessee or SAS BV (as applicable) to enable the Lessor to fulfil its tax filing requirements with respect to the transactions contemplated hereby. In the event that any return, statement or report is required to be made or filed with respect to any Tax required to be indemnified against by the Lessee or SAS BV under this clause 10, the Lessee or SAS BV (as applicable) shall notify the Lessor of such requirement and (a) to the extent permitted by law and, unless otherwise requested by the Lessor or required by law, make and file in its own name such return, statement or report in such manner as will show the ownership of the Aircraft in the Lessor and furnish the Lessor with a copy of such return, statement or report, or (b) where such return, statement or report is required to be in the name of or filed by the 27 Lessor, prepare and furnish such return, statement or report for filing by the Lessor in such manner as shall be satisfactory to the Lessor and send the same to the Lessor for filing no later than thirty (30) days prior to the due date. Where the Lessor is required to make or file a return, statement or report reflecting items other than or in addition to Taxes indemnified against by the Lessee or SAS BV under this clause 10, the Lessee or SAS BV (as applicable) shall, upon the Lessor's request, provide the Lessor with information, within a reasonable time, sufficient to permit such return, statement or report to be properly made and timely filed; (e) without prejudice to the provisions of clause 10.4(c), the Lessor agrees, at the cost, expense and liability of the Lessee, to provide such documents and instruments as are within its possession and as are reasonably available to it and to make such filings as the Lessee or SAS BV may reasonably request for the purpose of reducing or avoiding any claim, demand or assessment for Taxes in respect of which the Lessee or SAS BV is required to indemnify pursuant to this clause 10 or to recover the same from any third party properly liable for the same. In furtherance of the foregoing, the Lessor agrees, in each case at the cost, expense and liability of the Lessee or, as the case may be, SAS BV, and subject to the Lessee or SAS BV first ensuring that the Lessor is indemnified and secured to the Lessor's reasonable satisfaction against all costs, expenses and liabilities thereby incurred or which may be incurred in connection therewith, to co-operate in good faith with the Lessee or SAS BV (as applicable) in taking such steps as the Lessor, in its sole discretion, determines will not be prejudicial to the Lessor and to be appropriate for the purpose of reducing or avoiding any claim, demand or assessment for Taxes in respect of which the Lessee or SAS BV is required to indemnify pursuant to this clause 10 and which are imposed by any Government Entity or any political subdivision or taxing authority thereof or therein. The Lessor, the Lessee and SAS BV further agree to consider in good faith (but without any obligation to agree thereto) any reasonable modifications of the transaction described in this Lease that would reduce or eliminate any Taxes imposed on either party as a result of such transaction. 10.5 Notwithstanding the provisions of clause 10, neither the Lessee nor SAS BV shall be responsible pursuant to clause 10 for: (a) Taxes levied on, based on, measured by or with respect to net or gross income, capital income, asset, capital, capital gains, receipts, franchises, profits or the conduct of the business of the Lessor to the extent any Indemnitee would have been subject to such Taxes in the same amount in the absence of the transactions contemplated by the Lease or any other Lessee Document; 28 (b) Taxes paid, arising or imposed to the extent the same result from the failure by any Indemnitee to account for Tax on time (provided always that such Indemnitee has before the due date for payment either received a written demand therefor or otherwise been made aware in writing of the imposition of such Taxes and the due date for payment thereof) other than where any such failure arises as a result of any breach by the Lessee or SAS BV of any provision of, or the default by the Lessee or SAS BV in the performance of its obligations under, the Lessee Documents; (c) Taxes arising or imposed to the extent the same result from the breach by any Indemnitee of any express provision of, or the default by any Indemnitee in its performance of any of its obligations under, this Agreement or any other Lessee Document or result from any representation or warranty given or made by any Indemnitee in this Agreement or any other Lessee Document being incorrect at the date when given or made, or any fraud or wilful default or gross negligence of any Indemnitee. (d) Taxes (save for interest or penalties on Taxes arising earlier and which are indemnifiable by the Lessee or SAS BV in accordance with the other provisions of this clause 10) arising or attributable to acts or events occurring after the latest to occur of (i) the termination or expiry of the Lease Term, (ii) if the Lessee is required to return the Aircraft to the Lessor hereunder, the date on which the Aircraft is returned to the Lessor in accordance with the provisions hereof, and (iii) if the leasing of the Aircraft under this Agreement shall have been terminated pursuant to clause 21.1, the sale, transfer or other disposition of the Aircraft, the Airframe, any Engine or any Part or any interest in the Aircraft, the Airframe, any Engine or any Part; (e) Taxes to the extent any Indemnitee would have been subject to such Taxes in the same amount as a result of (i) activities or business of such Indemnitee unrelated to the transactions contemplated by the Lessee Documents, or (ii) any financing obtained by such Indemnitee; (f) Taxes arising or imposed to the extent the same are imposed with respect to the purchase by the Lessor of the Aircraft pursuant to the Aircraft Purchase Agreement (indemnification for which is provided in such Agreement) or from the sale, transfer or other disposition of the Aircraft, the Airframe, any Engine or any Part or any interest in the Aircraft, the Airframe, any Engine or Part unless such sale, transfer or other disposition occurs (i) in connection with the exercise of remedies after the leasing of the Aircraft under this Agreement shall have been terminated pursuant to clause 21.1, or (ii) pursuant to clause 17.5, 17.7, 18.5 or 23.1; 29 (g) Taxes levied or imposed upon any assignee or transferee (permitted or otherwise) of any of the Lessor's right, title or interest in or to any Lessee Document, the Aircraft, the Airframe, any Engine or Part to the extent such Taxes, at the time of such assignment or transfer, are, or could reasonably be foreseen will be as a result of any change in law not then in effect, in excess of the Taxes which would have been imposed had no such assignment or transfer taken place; (h) Taxes in respect of which the Lessee shall have indemnified the relevant Indemnitee pursuant to any other provision of this Agreement or any other Lessee Document; and (i) Taxes imposed on any Indemnitee under any applicable law of any jurisdiction which would not have been imposed had the transactions contemplated in the Lessee Documents been the sole connection between such Indemnitee and such jurisdiction; and (j) Taxes arising or imposed as a result of the loss of any anticipated Tax benefits except where such loss is as a result of any breach by the Lessee of any provisions of, or the default by the Lessee in the performance of its obligations under, the Lessee Documents. Provided however, that the preceding paragraphs (e) and (i) shall not apply to any Taxes imposed on any Indemnitee by a taxing jurisdiction in Sweden, Belgium or the Netherlands to the extent such tax would not have been imposed but for the transactions relating to SAS BV's agreement to pay Rent under this Lease, unless such Taxes would not have been imposed by such taxing jurisdiction if such Indemnitee had not operated an actual permanent place of business in such jurisdiction. 10.6 All payments by the Lessee or SAS BV under clause 8.6, clause 9 and this clause 10 shall include any amount necessary to hold the recipient thereof harmless on an after-tax basis from all Taxes required to be paid by such recipient with respect to such payment or indemnity. Calculations made on an after-tax basis shall be made assuming the actual rate applicable to the recipient for the relevant year. 10.7 The provisions of this clause 10 shall survive the expiration or termination of this Lease Agreement. 11 General Undertakings 11.1 The Lessee undertakes with the Lessor that it will: (a) Notification of Relevant Event promptly inform the Lessor in writing of any Relevant Event forthwith upon becoming aware thereof; 30 (b) Consents and authorisations without prejudice to paragraph 4 of Part 1 of schedule 1, obtain or cause to be obtained, maintain in full force and effect and comply in all material respects with the conditions and restrictions (if any) imposed in, or in connection with, every consent, authorisation, licence or approval of governmental or public bodies or authorities or courts and do, or cause to be done, all other acts and things, which may from time to time be necessary under any applicable laws in the State of Registration for the continued due performance of all its obligations under each of the Lessee Documents; (c) Preparation and Supply of Accounts furnish to the Lessor, within one hundred and eighty (180) days after the end of each of its financial years, the annual report of the Lessee in English including the balance sheet and profit and loss accounts in respect of such financial year and, within sixty (60) days after the end of each quarter, the quarterly report (if any) of the Lessee in English which the Lessee makes available to the public or its creditors generally; (d) Information concerning the Lessee and SAS BV provide the Lessor with such additional information as the Lessor may from time to time in writing reasonably require and is relevant in the context of the Lessee's or SAS BV's obligations under any of the Lessee Documents or in respect of the Aircraft. 11.2 The Lessee further undertakes with the Lessor that it will: (a) Status Report provide to the Lessor within fifteen (15) days of the written request of the Lessor (which request the Lessor shall be entitled to make at any time a Termination Event has occurred and is continuing, and at any reasonable time during the last two hundred and seventy (270) days of the Lease Term, but otherwise in respect of the Airframe, not more than once in any twelve (12) month period and, in the case of the Engines, not more than once in any six (6) month period) status reports on the Airframe and/or, as the case may be, the Engines containing or indicating such information as the Lessor may reasonably request; (b) Inspection throughout the Lease Period permit the Lessor and/or its agents or representatives to inspect the Aircraft at any reasonable time upon giving the Lessee not less than ten (10) days prior written notice. The Lessor shall only be entitled to perform such inspections during normal business 31 hours in the jurisdiction in which the Aircraft is located at the time of the inspection (or at any other time acceptable to each of the Lessor and the Lessee) and provided no unreasonable interference or delay is caused to the Lessee's or any Permitted Air Carrier's operation, maintenance and use of the Aircraft. The cost of such inspections and surveys shall be paid by the Lessor. 11.3 Lessor's Undertakings The Lessor hereby undertakes to the Lessee and SAS BV that throughout the Lease Term and for so long as any obligations of the Lessor under this Agreement remain to be performed: (a) it will not sell or otherwise transfer its title to the Aircraft or any part thereof or its interest therein, unless otherwise provided for in this Agreement or any of the other Lessee Documents to which the Lessee is a party or after having obtained the prior written consent of the Lessee; (b) it shall not create or permit to exist any Lessor's Lien (other than Permitted Liens) on or with respect to the Aircraft, title thereto or any interest therein and that it will promptly, at its own expense, take such action as may be necessary duly to discharge any such Lessor's Lien; (c) without prejudice to the Lessee's obligations under this Agreement or pursuant to applicable law, it shall obtain, make and maintain in full force and effect, promptly renew from time to time and comply with the terms of all consents, permissions, licences, authorisations, approvals, registrations and filings in Bermuda, the United States of America and in any other jurisdiction in which the Lessor has actual knowledge that any of the foregoing are so necessary, which may from time to time be necessary in order to enable it to perform its obligations under this Agreement or any other Lessee Document to which it is a party or for the legality, validity, enforceability or admissibility in evidence hereof or thereof; (d) it shall notify the Lessee and SAS BV within ten (10) Banking Days of obtaining or receiving actual knowledge of any change in law which would require payment by the Lessee, SAS BV or the Lessor of any additional amount in respect of withholding Taxes pursuant to this Agreement but any failure of the Lessor so to do shall not affect or derogate from the obligations of the Lessee or SAS BV (as applicable) hereunder or under any other Lessee Document or result in any liability (or increased liability) of the Lessor under this Agreement or any other Lessee Document; 32 (e) it shall promptly forward to the Lessee a copy of any notices relating to the Lessee's obligations hereunder with respect to the Aircraft received by it from any appropriate authority; (f) it shall promptly discharge all or any Taxes which are payable by it from time to time against which it is not entitled to be indemnified under any Lessee Document and which if not discharged would materially and adversely affect the rights or interests of the Lessee or SAS BV under this Agreement save where, and for so long as, payment of such Taxes is being contested in good faith and by appropriate proceedings which will not materially and adversely affect the rights or interests of the Lessee or SAS BV under this Agreement. 12 Sub-Leasing 12.1 The Lessee will not at any time, without the prior written consent of the Lessor (which consent shall not be unreasonably withheld or delayed), sub-lease, charter, hire or otherwise part with the possession or operational control of the Aircraft or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe. Notwithstanding the foregoing, so long as no Termination Event shall have occurred and be continuing, the Lessee may, without the prior written consent of the Lessor: (a) subject to the provisions of clause 12.2, sub-lease or deliver possession of the Aircraft, the Airframe or any Engine to any Permitted Air Carrier whose base of operations is in a Permitted Country for a term (including, without limitation, any option of the sub-lessee to renew or extend the sub-lease) not to extend beyond the end of the Lease Term. (b) deliver, or permit such Permitted Air Carrier as has possession of the Aircraft to deliver, possession of the Airframe or any Engine to the manufacturer thereof or any qualified person for the purpose of testing, maintenance, service, repair or overhaul work or any modifications, changes or alterations permitted under this Agreement being carried out on the Airframe, such Engine or any Part thereof; (c) subject, or permit such Permitted Air Carrier as has possession of the Aircraft to subject, any Engine or Part to normal interchange or pooling agreements or arrangements in each case customary in the airline industry and entered into by the Lessee in the ordinary course of its business with Permitted Air Carriers, provided that if any interest of the Lessee or the Lessor in or to any such Engine or Part shall be divested under any such agreement or arrangement, such divestiture shall be deemed to be a Total Loss with respect to such Engine or Part and the Lessee shall comply with clause 17.5, in the case of an Engine, and clause 13.1(d), in the case of a Part; and 33 (d) lease, chatter or hire out, or permit such Permitted Air Carrier as has possession of the Aircraft to lease, charter or hire out, the Aircraft in circumstances where the Aircraft shall remain registered in the State of Registration and the Lessee or the Permitted Air Carrier (as the case may be) shall be obligated under the terms of the relevant lease, charter or hire agreement to provide the flight crew and to operate and maintain (other than line maintenance) the Aircraft and to effect the insurances required to be maintained with respect to the Aircraft pursuant to clause 16. 12.2 (a) The Lessee shall remain primarily liable hereunder for the performance of all of the terms of this Agreement to the same extent as if any sub-lease or transfer of possession contemplated by clause 12.1 had not occurred and any such sub-lease shall include provisions (i) for the maintenance and insurance of the Aircraft substantially the same as those contained in this Agreement, (ii) that the Aircraft, Airframe or Engines shall not be operated or used in a manner contrary to the terms of this Agreement, (iii) that the sub-lessee will not transfer possession or control of the Aircraft, Airframe or any Engine to anyone other than the Lessee or, following the occurrence of a Termination Event, the Lessor, provided however that such provisions shall permit the sub-lessee to transfer possession or control of the Aircraft, Airframe or any Engine on the same terms as clauses 12.1(b) to (d), 13.2 or 13.3, (iv) that the sub-lessee will not assign the sub-lease or further sub-lease the Aircraft other than as contemplated in clause 12.1(d), and (v) that the term of such sub-lease will not extend beyond the end of the Lease Term. The Lessee shall procure that no pooling agreement, sub-lease or other relinquishment of possession of the Aircraft or any Engine shall in any way discharge or diminish any of the Lessee's obligations to the Lessor hereunder nor shall the Lessee permit any such agreement, sub-lease or arrangement to prejudice the right, title and interest of the Lessor in and to the Aircraft or under this Agreement. (b) Prior to the effective date of any sub-lease referred to in clause 12.1(a), the Lessee shall give the Lessor written notice of its intent to sub-lease the Aircraft (which notice shall specify the identity of the proposed sub-lessee and the material terms of the sub-lease), and as soon as practicable (and in any event not later than ten (10) days after receipt by the Lessor of such notice) the Lessor shall elect, by written notice to the Lessee, either (i) that such sub-lease shall be subject and subordinate to the terms of this Agreement, or (ii) that such sub-lease shall be assigned in favour of the Lessor as security for the Lessee's and SAS BV's obligations under this Agreement provided however that it is understood and agreed by the Lessee that, in respect of any sub-lease with a term of six (6) months or less, the Lessor, unless it otherwise agrees in writing, shall be deemed to have elected the alternative specified in paragraph (i) above, without the need for any notice or other act on the part of the Lessor. If the Lessor elects the alternative specified in paragraph (i) 34 above, the Lessee shall procure that the rights of any person who receives possession of the Aircraft pursuant to such sub-lease shall be made expressly subject and subordinate to, all the terms of this Agreement and the Lessor's rights hereunder (including, without limitation, the right of the Lessor to take possession of the Aircraft in accordance with clause 21) and will procure that any such sub-lease includes a provision that such sub-lease will terminate upon termination of this Agreement for any reason. If the Lessor elects the alternative specified in paragraph (ii) above, prior to the effective date of such sub-lease, the Lessee shall execute an assignment in favour of the Lessor reasonably satisfactory to the Lessor of all its rights under such sub-lease as security for all the obligations of the Lessee and SAS BV under the Lessee Documents (such assignment being enforceable only if a Termination Event has occurred and is continuing) and the Lessee shall procure that the sub-lessee under such sub-lease acknowledges a notice of such assignment. The Lessor agrees to issue to such sub-lessee, in consideration of such acknowledgement, a letter of quiet enjoyment addressed to such sub-lessee, in the form of the Letter of Quiet Enjoyment or in such other form as the Lessor, the Lessee and such sub-lessee may agree. Any failure by the Lessor to make an election as contemplated by, and in accordance with, this clause 12.2(b) shall be deemed to be an election by the Lessor of the alternative specified in paragraph (ii) above, unless the Lessee notifies the Lessor to the contrary in writing, and the Lessor shall be bound by, and perform its obligations under, this clause 12.2(b) as if the Lessor had elected the alternative specified in paragraph (ii) above or, as the case may be, paragraph (i) above. All costs and expenses incurred by the Lessor in connection with the granting of any assignment referred to in paragraph (ii) shall be for the account of the Lessee. At least five (5) days prior to the effective date of any sub-lease contemplated in either paragraph (i) or (ii) above, the Lessee shall deliver to the Lessor a copy of such sub-lease provided however that all financial provisions of any such sub-lease which is subject and subordinate to the terms of this Agreement may be deleted prior to delivery to the Lessor. For the avoidance of doubt, the Lessor shall not have the right to require any assignment of any sub-lease which is subject to and subordinate to the terms of this Agreement. (c) The Lessee shall not permit or allow any filing with the Aviation Authority or any other Government Entity evidencing any such sub-lease which is prejudicial to any of the Lessor's rights, title or interest in or to the Aircraft or this Agreement without the prior written consent of the Lessor. (d) Notwithstanding the foregoing provisions of this clause 12, the Lessee shall not enter into any sub-lease which requires any change in the State of Registration without the prior written consent of the Lessor (such consent not to be unreasonably withheld or delayed) provided however that the Lessor may not withhold its consent if the proposed new State 35 of Registration is a Permitted Country and the Lessee delivers to the Lessor, at the Lessee's cost, prior to the registration of the Aircraft in the proposed new State of Registration: (i) a certificate of insurance signed by an independent insurance broker to the effect that the Aircraft is, and after such re-registration will continue to be, insured in accordance with the requirements of clause 16 hereof; (ii) a certificate signed by a duly authorised officer of the Lessee stating that no Relevant Event exists as of the date of such certificate and no such event will occur or exist upon or resulting from such re-registration; and (iii) a favourable opinion of English counsel (which counsel and opinion shall be reasonably satisfactory to the Lessor) that the applicable Lessee Documents, including (if governed by English law) any sub-lease in effect at the time of or entered into in connection with such re-registration are and upon such re-registration will continue to be legal, valid and binding and enforceable according to their terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganisation, moratorium, liquidation or similar laws affecting the rights of creditors generally and except as enforceability may be subject to general principles of equity, whether asserted in proceedings in equity or at law; and (iv) a favourable opinion of counsel (which counsel and opinion shall be reasonably satisfactory to the Lessor) in the proposed new State of Registration as to such matters relating to such re-registration as may be reasonably requested by the Lessor; and (v) if such sub-lease shall be to an airline which is not a recognised flag-carrying airline and if the Lessee itself obtains the same, a power of attorney which will be irrevocable and valid and enforceable in the proposed new State of Registration (but only at a time when a Termination Event has occurred and is continuing) which would permit the Lessee and/or the Lessor to de-register the Aircraft from the Aviation Authority and export the Aircraft from such State of Registration and the Lessee agrees to use its reasonable endeavours (having regard to all the commercial circumstances) to obtain such a power of attorney provided however that, subject to having made such reasonable endeavours, the Lessee shall be under no liability or obligation should such a power of attorney not be obtained. 36 13 Operations and Maintenance 13.1 The Lessee further undertakes with the Lessor that throughout the Lease Period it will have the technical and operational responsibility for the Aircraft and will at its own cost and expense: (a) Certificates and Licences obtain and maintain in full force and effect all necessary certificates, licences, permits and authorisations required for the use and operation of the Aircraft, including, without limitation, an air operators certificate, an unrestricted certificate of airworthiness with respect to the Aircraft in the public transport category (passenger) issued by the Aviation Authority, and such certificates of maintenance, review and release to service as are required for the Aircraft to be used for the public transport of passengers; (b) Operation and Use (i) use or procure that the Aircraft is used, operated and controlled in accordance with all applicable laws, ordinances, rules, regulations, orders or requirements of the State of Registration and in accordance with all certificates, licences, permits, authorisations and registrations relating to the Aircraft imposed by the Aviation Authority and so as not to invalidate any manufacturer's warranties; (ii) not use or procure that the Aircraft will not be used for any purpose for which it is not designed or reasonably suited, or outside the tolerances and limitations for which the Aircraft was designed and will be operated in accordance with the Manuals and Technical Records and in a manner permitted by the Aviation Authority; (iii) not use or procure that the Aircraft will not be knowingly used for any illegal purpose or in an illegal manner or for any purpose or in any manner not fully covered by the Insurances, or outside any geographical limit imposed by the Insurances without first procuring the consent to such use from the appropriate insurers and complying with such requirements as to extra premium or otherwise as the insurers may require or procuring alternative indemnities acceptable to the Lessor; (c) Maintenance ensure that the Aircraft is maintained, serviced, repaired and overhauled in accordance with the Approved Maintenance Programme so as to: 37 (i) keep the Aircraft in good repair, condition and appearance and airworthy in all respects and generally in as good operating condition as when delivered to the Lessee on the Delivery Date, fair wear and tear excepted; (ii) comply with all mandatory modifications and Alert Service Bulletins which are due and applicable to the Aircraft and all other Service Bulletins which are selected, without discrimination, by the Lessee for incorporation in the Lessee's fleet of Boeing 767-300ER aircraft; and (iii) comply with all applicable laws, ordinances, rules, regulations, orders and requirements of the State of Registration and ICAO; (d) Replacement and Installation of Engines and Parts the Lessee, at its own cost and expense, shall promptly replace or cause to be replaced any Engine, or any Part, which may from time to time be incorporated in, installed on or attached to the Airframe or any Engine, and which may from time to time become worn out, lost, stolen, destroyed, seized, confiscated, damaged beyond repair or permanently rendered unfit for use for any reason whatsoever. In addition, the Lessee may, at its own cost and expense, remove or permit to be removed in the ordinary course of maintenance, service, repair, overhaul or testing, any Engine or any Part, whether or not worn out, lost, stolen, destroyed, seized, confiscated, damaged beyond repair or permanently rendered unfit for use, provided that the Lessee shall, at its own cost and expense replace or cause to be replaced such Engine or Parts as promptly as possible. Each Replacement Engine or Part shall be free and clear of all Encumbrances other than Permitted Liens and shall be (i) serviceable in accordance with the Approved Maintenance Programme and the regulations of the Aviation Authority, (ii) be an approved part for use on the Aircraft, and (iii) in as good operating condition as, and shall have a value and utility substantially equal to, the Engine or Part replaced assuming such replaced Engine or Part was then of the value and in the condition and repair required to be maintained by the terms hereof. Each Engine and Part at any time removed from the Airframe or (in the case of any Part) any Engine shall remain the property of the Lessor, no matter where located, until such time as such Engine or Part shall be replaced by an Engine or Part which has been incorporated in, installed on or attached to the Airframe or such Engine (as the case may be) and which meet the requirements for replacement Engines and Parts specified above. Immediately upon any replacement Engine and Part being incorporated in, installed on or attached to the Airframe or any Engine (as the case may be) as above the Lessee shall procure that, in accordance with the laws of the lex situs, (i) title to such replacement or substitute Engine or Part shall vest in the Lessor free and clear of all Encumbrances other than Permitted Liens and (ii) such replacement or 38 substitute Engine or Part shall become subject to this Agreement and be deemed part of the Airframe or such Engine (as the case may be) for all purposes hereof to the same extent as the Engine or Part originally incorporated in, installed on or attached to the Airframe or such Engine (as the case may be). The Lessee shall, at the cost and expense of the Lessee, do such acts and things as the Lessor may reasonably require to ensure that title so vests in the Lessor. Upon such installation, title to the replaced or removed Engine or Part shall vest in the Lessee, free and clear of all Lessor's Liens and rights or claims of the Lessor. The Lessor shall, at the cost and expense of the Lessee, do such acts and things as the Lessee may reasonably require to ensure that title so vests in the Lessee; (e) Removal of Engines and Parts subject to clause 13.2 and clause 13.3, ensure that no Engine on the Airframe or any Part installed in the Airframe or any Engine is at any time removed therefrom otherwise than during the course of maintaining, servicing, repairing, overhauling or testing the Airframe or such Engine, or making such modifications, changes or alterations to the Airframe or such Engine as are permitted under this Agreement, and then only if it is promptly reinstalled, or promptly replaced or substituted by an item complying with the provisions of clause 13.1(d) Provided that any Engine or Part (as the case may be) which is installed on the Airframe or any Engine by way of addition and not by way of replacement, substitution, renewal or mandatory improvement may be removed without the Lessee being obliged to comply with the foregoing provisions of this clause 13.1(e), and upon such removal of such Part in such circumstances, title to such Part shall vest in the Lessee and provided further that after any such removal the Lessee shall restore the Aircraft to the condition the Aircraft would have been in had such removed Engine or Part (as the case may be) not been installed on the Aircraft; (f) Non-installed Engines ensure that, save in accordance with clause 13.3, no Engine is installed on any other aircraft, and that any Engine not installed on the Airframe is properly and safely stored in accordance with the manufacturer's recommendations, and kept free from Encumbrances other than Permitted Liens and that appropriate insurance cover is effected in respect of any Engine or Parts belonging to the Lessor which are not installed on the Airframe or any Engine; (g) Nameplates within fourteen (14) days of the Delivery Date affix and maintain a fireproof nameplate in a reasonably prominent position on the flightdeck 39 or cockpit of the Aircraft stating that the Aircraft is the property of the Lessor and will ensure that the same is not covered or painted over; and (h) Alterations subject to the provisions of clause 13.4, procure that no modification to or change or alteration in the Aircraft is made which will have the effect of reducing the value or airworthiness of the Aircraft except as (i) necessary for compliance with the provisions of this Agreement or (ii) required by the manufacturer of the Aircraft or (iii) required by the Aviation Authority or ICAO. 13.2 Temporary Installation of engines and Parts The Lessee and any Permitted Air Carrier shall be entitled to install any engine on the Airframe or any Part on the Airframe or any Engine by way of substitution or replacement or renewal or mandatory modification notwithstanding that such installation is not in accordance with clause 13.1(d) if (a) there shall not have been available to the Lessee or, as the case may be, the Permitted Air Carrier at the time and in the place that such engine or Part was required to be installed on the Airframe or any Engine a substitute or replacement engine or Part complying with the requirements of clause 13.1(d), and (b) it would have resulted in an unreasonable disruption of the operation of the Aircraft and/or the business of the Lessee or, as the case may be, the Permitted Air Carrier to have grounded the Aircraft until such time as an engine or Part complying with the requirements of clause 13.1(d) became available for installation in the Airframe or any Engine, and (c) as soon as may be operationally and economically practicable after installation of the same on the Airframe or any Engine, and in any event on or prior to the date falling ninety (90) days after the date of installation of the same or, if earlier, prior to the date on which the Lessee re-delivers the Aircraft pursuant to clause 19 the Lessee or, as the case may be, the Permitted Air Carrier shall ensure that any such engine or Part not complying with the requirements of clause 13.1(d) is removed and replaced or substituted by an engine or Part complying with the requirements of clause 13.1(d). 13.3 Pooling and Installation of Parts and Engines on other aircraft (a) Notwithstanding anything in this Agreement to the contrary, the Lessee may and may allow any Permitted Air Carrier (for such period as may be permitted pursuant to the relevant agreement or arrangement) to lease, let on hire or charter or otherwise part with possession of an Engine or any Part (on terms conferring no more than a contractual right in personam against the Lessee, or the relevant Permitted Air Carrier but not rights against such Engine or relevant Part) pursuant to pooling agreements or arrangements to which the Lessee or the relevant Permitted Air Carrier is a party provided that such pooling agreements or arrangements conform to normal interchange or pooling arrangements 40 customary in the airline industry involving solvent and responsible scheduled commercial air carriers, or the manufacturer's or suppliers of the Engines or Parts, and which do not contemplate transfer of title to the pooled Engine or relevant Part. (b) Notwithstanding anything in this Agreement to the contrary, the Lessee may and may allow any Permitted Air Carrier to: (i) install any of the Engines on an aircraft owned by the Lessee or the relevant Permitted Air Carrier (as the case may be) or leased or hired to the Lessee or the relevant Permitted Air Carrier, as the case may be, whereby the Lessee or the relevant Permitted Air Carrier (as the case may be) has full operational control of such aircraft or an aircraft purchased by the Lessee or the relevant Permitted Air Carrier (as the case may be) subject to a conditional sale agreement or subject to a charge or charges covering such aircraft, provided that the terms of any lease, conditional sale agreement or charge or charges provide that such Engines will remain subject to this Agreement free and clear of any rights of any other lessors, mortgagees or persons other than Permitted Liens; or (ii) install any Part belonging to the Lessor on an aircraft owned by the Lessee or the relevant Permitted Air Carrier (as the case may be) leased or hired to the Lessee or any relevant Permitted Air Carrier (as the case may be) on terms whereby the Lessee or any relevant Permitted Air Carrier (as the case may be) has full operational control of such aircraft or an aircraft purchased by the Lessee or the relevant Permitted Air Carrier (as the case may be) subject to a conditional sale agreement or subject to a charge or charges covering such aircraft, provided that the terms of any lease, conditional sale agreement or charge or charges provide that such Parts will remain subject to this Agreement free and clear of any rights of any other lessors, mortgagees or persons other than Permitted Liens. 13.4 Installation of Other Equipment Notwithstanding the provisions of clause 13.1(d), the Lessee may, or may permit any Permitted Air Carrier to, install audio visual entertainment, telephonic and other equipment in the Aircraft which does not comply with the requirements as to title thereto specified in clause 13.1(d) and remove such equipment so installed and the Lessee undertakes that upon installation of any such equipment it shall make, or procure that there is made, an entry in the Manuals and Technical Records to the effect that such equipment is then installed in the Aircraft and that upon termination of the Lease Period the Lessee shall if it wishes to do so or if it asked to do so by the Lessor at its own cost and expense, remove any part of or all of (as the Lessee shall in its absolute 41 discretion determine) such equipment from the Aircraft and the Lessee shall after such removal restore the Aircraft to the same condition it was in immediately prior to any modification carried out in order to install such equipment. The Lessor shall not claim or acquire title to any such equipment other than equipment the Lessee chooses not to remove upon termination of the Lease Period and equipment purchased by the Lessor as contemplated by the remainder of this clause 13.4, and the rights of the owners therein shall not constitute a default under this Agreement. Upon the expiry of the Lease Period, the Lessor may offer to purchase any equipment referred to above at a price equal to the Lessee's actual cost (inclusive of evidenced design, labour and material costs) of such equipment, and the Lessee may accept or reject any such offer at its sole discretion. Any equipment referred to in the first sentence of this clause 13.4 which is not removed by the Lessee or is purchased by the Lessor as contemplated above, prior to the return of the Aircraft to the Lessor at the end of the Lease Period, shall become the property of the Lessor, except for any such equipment which is leased by the Lessee and the owner of such equipment and the Lessor have agreed directly with each other that such equipment shall remain on the Aircraft. 14 Manuals and Technical Records 14.1 Throughout the Lease Period the Lessee shall ensure that there are kept accurate, complete and current records of all flights made by the Aircraft, and of all maintenance and repairs carried out to the Airframe and each Engine and Parts, and shall maintain all other records, logs and documents which are required to be maintained in respect of the Aircraft by the Aviation Authority, and shall allow the Lessor and/or its agents or representatives to examine such records at any reasonable time during normal business hours in the jurisdiction where such records are kept (or at any other time acceptable to both the Lessor and the Lessee) upon giving not less than ten (10) days written notice to the Lessee and provided no unreasonable interference or delay is caused to the Lessee's or any Permitted Air Carrier's operation, maintenance and use of the Aircraft. The costs of such examinations shall be paid by the Lessor. 14.2 The records, logs and documents so kept or maintained shall be kept and maintained in the English language and conform with the regulations from time to time in force of the Aviation Authority, and with the normal practices of the Lessee and shall disclose the whereabouts of all Engines and Parts not installed on the Airframe. 14.3 The records, logs and documents so kept or maintained shall be part of the Manuals and Technical Records and shall be the property of the Lessor and, at the end of the Lease Period, if the Aircraft is redelivered to the Lessor, the Lessee shall deliver the original Manuals and Technical Records to the Lessor, provided that the Lessee shall be entitled to take and retain copies thereof. 14.4 The Lessee shall (save as hereinafter provided) procure that all the Manuals and Technical Records are kept on the Aircraft or in its possession or in the 42 possession of the relevant Permitted Air Carrier (save for any purpose specified in clause 12) and shall procure that no other person (other than a person entitled to have possession or control of the Aircraft under the terms of this Agreement) shall have possession of or control over the Manuals and Technical Records or any of them, except with the prior written consent of the Lessor (such consent not to be unreasonably withheld or delayed). 15 Title and Registration 15.1 The Lessee, at its sole cost and expense, shall use its reasonable endeavours to cause the Aircraft to be certified as to airworthiness by the Aviation Authority on a permanent basis in accordance with the laws of Norway or any Permitted Country (as the case may be) at all times during the Lease Period. 15.2 The Lessee, at its sole cost and expense, shall as soon as reasonably practicable after the Delivery Date and in any event no later than five (5) Banking Days following the Delivery Date cause the title of the Lessor to the Aircraft to be duly registered on a permanent basis and, to the extent permitted under the laws of Norway, at all times thereafter to remain duly registered in the Register of Aircraft in accordance with the laws of Norway, and, to the extent permitted under the laws of Norway, shall not register or allow the Aircraft to be registered in any other way or manner under the laws of Norway or any other country (provided that registration in accordance with the laws of Norway other than by way of registration of the title of the Lessor to the Aircraft shall not prejudice the Lessor's position as holder of title to the Aircraft), except in the event the Lessee either wishes to register the Aircraft in a different Permitted Country or sub-leases the Aircraft in any Permitted Country, in which event (provided that such registration will not prejudice the Lessor's position as holder of title to the Aircraft) the Lessee shall at its cost, to the extent permitted under the laws of such other Permitted Country, cause the title of the Lessor to the Aircraft to be duly registered or recorded in a way or manner similar to those described in this clause 15.2 under the laws of such Permitted Country, which registration or recordation, for the avoidance of doubt, shall extend only to the registration of the Lessor's interests as Owner of the Aircraft. 15.3 In the event that the Aircraft is returned to the Lessor pursuant to the terms of this Agreement, the Lessee shall if so requested by the Lessor, at the Lessee's own cost and expense, take all necessary steps to: (a) remove the registration of the Aircraft from any jurisdiction in which the Aircraft may be registered at such time; (b) obtain an export certificate of airworthiness for the Aircraft (if applicable) from the Aviation Authority; and (c) assist the Lessor or its designee(s), at the Lessor's cost, in securing such new registration of the Aircraft as may be determined by the Lessor, which assistance shall include, without limitation, preparation or 43 provision of documents necessary to be obtained from the Lessee in connection with such new registration. 16 Insurance 16.1 On or before Delivery and until the Aircraft has been returned to the Lessor pursuant to clause 19 or title has been transferred to the Lessee, the Lessee shall obtain, maintain and keep in full force and effect with Polygon Insurance Company Limited insurance with respect to the Aircraft complying with the requirements of this clause 16. 16.2 Until the Aircraft has been returned to the Lessor pursuant to clause 19 or title has been transferred to the Lessee, the Lessee shall comply with all legal requirements as to the insurance of the Aircraft which may from time be imposed by the laws of the State of Registration. 16.3 The Lessee shall pay or shall procure the payment of the premiums (or instalments thereof) as required by the terms of the policies relating to the Insurances. 16.4 The Lessee shall not create or permit to exist any Encumbrance other than Permitted Liens over the Insurances, or its interest therein, save as expressly permitted by this Agreement. 16.5 (a) The Lessee shall obtain and maintain: (i) "All-Risks" hull insurance on the Aircraft including all flights, taxiing and ground risks in such amount in Dollars as is equal to the Agreed Value of the Aircraft as at the time the insurance is placed or renewed. The deductible in respect of such insurance shall not exceed $2,000,000. (ii) "All-Risks" (including War and Allied Risks except when on the ground or in transit other than by air) property insurance on Engines, Parts, components or spares when not installed on the Aircraft on an "Agreed Value" basis for their full replacement value and including engine test and running risks. The deductible in respect of such insurance shall not exceed $1,000,000 each and every loss. (iii) "War Risks" hull insurance to the extent available as detailed in the War, Hijacking and Other Perils Exclusion Article AVN48B or any modification or substitution thereof for the time being in force but excluding confiscation by the governments of the Scandinavian Countries, in such amount in Dollars as is equal to the Agreed Value of the Aircraft as at the time the insurance is placed or renewed. 44 (b) The insurances required under clause 16.5(a) shall be provided on an agreed value basis, and the policies shall be endorsed to include paragraph 1 of AVN67A, with the Lessor, inter alia, named as a Contract Party in AVN67A. (c) The original certificate of insurance issued by the relevant brokers shall confirm, in the event of separate insurances being arranged to cover the "All-Risks" hull insurance and the "War Risks" and related insurance, that the underwriters subscribing to such insurance have agreed in the terms of AVS 103 (or equivalent) that in the event of any dispute as to whether a claim is covered by the "All Risks" or "War Risks" policy, such claim be settled on a 50/50 claim funding basis. 16.6 (a) The Lessee shall obtain and maintain, in a form which complies with the current market standard, aircraft third party, passenger, baggage, cargo, mail and airline general third party liability and products liability insurance coverage (including AV52) for a combined single limit (bodily injury or property damage) of $500,000,000 for any one accident. (b) The policies evidencing the insurances required under clause 16.6(a) shall be endorsed to include paragraph 2 of AVN67A, with the Lessor, inter alia, named as a Contract Party in AVN67A. 16.7 (a) The policies evidencing the insurances required under clause 16.5 and clause 16.6 shall: (i) specifically reference this Agreement; (ii) provide for worldwide coverage (subject only to such exceptions as may be customary and generally applicable in the aviation insurance industry with respect to the geographical scope of the hull, war and allied risks insurances for aircraft of the same type as the Aircraft); and (iii) be endorsed to include paragraph 3 of AVN67A with the Lessor (inter alia) named as a Contract Party in AVN67A. 16.8 The Lessor shall be entitled, after the expiry or termination of the Lease Period, to require the Lessee at the Lessee's expense to effect and to maintain insurance, if available, with respect to its liability under the indemnities set forth in clause 9.1(a) for such period (which shall not exceed two (2) years from the date of such expiry or termination) as the Lessor may reasonably require such insurance to provide for the Lessor to be named as additional insured thereunder to the extent of its interests under the said indemnities, and the obligation of the Lessee to effect the same to continue notwithstanding the Lessee ceasing to be the user or operator of the Aircraft and the Lessor ceasing to be the owner of the Aircraft. 45 16.9 The Lessor shall be entitled to take out and maintain, at the Lessor's cost, additional insurance relating to the Aircraft, provided that such insurance does not or may not prejudice any insurances required to be maintained under this Agreement or recovery thereunder. 16.10 Any reference in this clause 16 to clauses from AVN67A shall be deemed to have such clauses incorporated herein by reference and become a part of this Agreement. Such clause shall be effective notwithstanding any changes made to AVN67A or in the event AVN67A becomes obsolete or superseded by any successor endorsement provisions, unless the Lessor and the Lessee shall have entered into a written agreement amending this clause 16 to provide for appropriate revisions regarding such successor endorsement provisions. 17 Loss and Damage 17.1 Throughout the Lease Period the Lessee shall bear the full risk of any loss, destruction, hi-jacking, theft, condemnation, confiscation, seizure or requisition of or damage to the Aircraft and of any other occurrence of whatever kind which shall deprive the Lessee or the operator of the Aircraft for the time being of the use, possession or enjoyment thereof. 17.2 (a) The Lessee shall give the Lessor immediate (and, in any event, within seven (7) days after such occurrence) notice in writing of any such occurrence as is referred to in clause 17.1 (other than repairable damage the likely cost of rectification of which will not exceed in aggregate Two million Dollars ($2,000,000), or in relation to any Engine One million Dollars ($1,000,000)) or any other occurrence of whatever kind which shall deprive the Lessee or the operator of the Aircraft for the time being of the use, possession or enjoyment thereof. (b) The Lessee shall supply to the Lessor all necessary information, documentation and assistance which may reasonably be required by the Lessor in connection with making any claim under the Insurances. 17.3 (a) If the Aircraft shall become a Total Loss during the Lease Period, the Lessee shall pay, or procure that the insurers pay, to the Lessor being loss payee under the Insurances on the date insurance proceeds are paid in full but in any case within ninety (90) days (or such longer period as may be agreed) of the date on which the Total Loss occurred, the Agreed Value as at the date of payment thereof together with all amounts of Rent and any other amounts then due and payable under the Lessee Documents. If the Lessor receives any monies paid pursuant to the Insurances in excess of the Agreed Value it shall immediately pay such excess to the Lessee. (b) For the purposes of this Agreement a Total Loss shall be deemed to have occurred: 46 (i) in the case of an actual total loss, at noon (London time) on the actual date the Aircraft was lost or, if such date is not known, noon (London time) on the day on which the Aircraft was last heard of; (ii) in the case of any of the events described in sub-paragraph (a) of the definition of Total Loss (other than an actual total loss), upon the date that notice claiming the loss of the Aircraft is given to the relevant insurers, unless the insurers do not forthwith admit such claim, when such Total Loss shall be deemed to have occurred at the date and time at which either a total loss is subsequently admitted by the insurers or a competent court or arbitration tribunal issues a judgment to the effect that a total loss has occurred; (iii) in the case of any of the events described in sub-paragraph (b) of the definition of Total Loss, upon the date of occurrence of such destruction, damage or cessation; (iv) in the case of Compulsory Acquisition, upon the date upon which the relevant requisition of title or other compulsory acquisition, requisition, appropriation, expropriation, deprivation or confiscation occurs; and (v) in the case of any of the events described in sub-paragraph (d) of the definition of Total Loss, upon the expiry of the period of ninety (90) days referred to in such sub-paragraph (d) after the date upon which the relevant hijacking, theft, condemnation, confiscation, capture, detention, seizure or requisition for use or hire occurred. 17.4 SAS BV shall continue to pay Rent on the days and in the amounts required under this Agreement notwithstanding any Total Loss Provided Always that no further instalments of Rent shall become due after the date on which all sums due under clause 17.3(a) shall have been paid in full, and on such date the Lease Period shall terminate and the Lessor shall assign to the Lessee or its nominee all claims against third parties relating to the Aircraft arising from the Total Loss. 17.5 In the event of repairable damage to the Aircraft or any of the Engines, or an Engine Loss all insurance moneys which may be payable by the insurers of the Aircraft shall be paid to the Lessee who shall be obliged to ensure that such damage shall (if it has not already) be made good or repaired or put in hand for repair or, in the case of an Engine Loss, the Lessee shall utilise the relevant insurance moneys in payment of the purchase price of a replacement Engine Provided always that if a Relevant Event has occurred and is continuing, the Lessor shall be entitled, as loss payee under the Insurances, to receive any insurance moneys and such insurance moneys may be applied in or towards 47 settlement of any amounts owing by the Lessee or SAS BV to the Lessor under any Lessee Document. 17.6 In the event of repairable damage to the Aircraft or any of the Engines, or an Engine Loss, and if the insurance moneys paid in respect thereof are insufficient to pay the cost or estimated cost of making good or repairing such damage or the cost of purchasing a replacement Engine, the Lessee will pay the deficiency. 17.7 Replacement Engine(s) Upon the occurrence of an Engine Loss under circumstances in which there has not also occurred a Total Loss, the Lessee shall give the Lessor written notice promptly after becoming aware thereof and shall, within sixty (60) days after the occurrence of such Engine Loss, convey or cause to be conveyed to the Lessor, as replacement for such Engine, title, free and clear of all Encumbrances other than Permitted Liens, to a Replacement Engine. Prior to or at the time of any such conveyance, the Lessee will (a) furnish the Lessor with a bill of sale with respect to such Replacement Engine and (b) take such other actions and furnish such other certificates and documents as the Lessor may reasonably require in order to ensure that the Replacement Engine is duly and properly conveyed to the Lessor and leased to the Lessee to the same extent as the Engine replaced thereby and leased hereunder. For all purposes hereof such engine shall, after such transfer, be deemed part of the property leased hereunder and shall be deemed an "Engine" as defined herein. Upon full compliance by the Lessee with the terms of this clause 17.7, the lease hereunder of the replaced Engine with respect to which such Engine Loss occurred shall cease and title to such Engine shall thereupon vest in the Lessee or the Lessee's nominee free and clear of all rights of the Lessor and any Lessor's Liens. No Engine Loss with respect to any Engine which is replaced in accordance with the provisions of this clause 17.7 shall result in any increase or decrease of Rent or the Agreed Value. 18 Requisition 18.1 If the Aircraft is requisitioned for hire by any governmental or other competent authority during the Lease Period then, unless and until the Aircraft becomes a Total Loss following such requisition and the Lessee shall have made payment of all sums due pursuant to clause 17.3(a), the lease of the Aircraft to the Lessee under this Agreement shall continue in full force and effect (subject always to the provisions of clause 21) for the remainder of the Lease Term and the Lessee and, subject to clause 7.3, SAS BV shall remain fully responsible for the due compliance with all their respective obligations under this Agreement other than such obligations which the Lessee is unable to comply with solely by virtue of such requisition. 18.2 If the Lessee and SAS BV shall duly comply with all their respective obligations under this Agreement, save as mentioned in clause 18.1, the Lessee shall, during the Lease Period, be entitled to all requisition hire paid to the Lessor or to the Lessee on account of such requisition. 48 18.3 The Lessee shall, as soon as practicable after the end of any requisition for hire, cause the Aircraft to be put into the condition required by this Agreement, and where that requisition shall end after the expiry or termination of the Lease Term, the Lessee shall, as soon as practicable, cause the Aircraft to be put into the redelivery condition required by clause 19, allowance being made for fair wear and tear in respect of the period from the expiry or termination of the Lease Term. 18.4 The Lessee shall be entitled to all compensation payable in respect of any change in the structure, state or condition of the Aircraft arising during the period of requisition for hire. The Lessee shall apply such compensation in or towards the cost of complying with its obligation under clause 18.3, provided always that if a Relevant Event has occurred and is continuing, the Lessor shall be entitled to receive and apply such compensation in or towards settlement of any amounts owing by the Lessee under any Lessee Document. 18.5 Should the Aircraft be under requisition for hire at the end of the Lease Term the lease of the Aircraft under this Agreement shall be extended to the earlier of the date (the "Extended Date") falling ninety (90) days after the date of expiration of the Lease Term and the date the Aircraft is released from such requisition for hire, and all the provisions of this Agreement shall remain in full force and effect, save that the rate of Rent payable by SAS BV during such extension shall be equal to the rate of Rent payable by SAS BV under this Agreement immediately prior to the expiration of the Lease Term. If the Aircraft remains under requisition for hire at the Extended Date the Aircraft shall be deemed to be a Total Loss, and the provisions of this Agreement relating to a Total Loss shall apply. Upon receipt by the Lessor of the Agreed Value and all other amounts due and payable to the Lessor under the Lessee Documents in the circumstances contemplated in this clause 18.5, the Lessor shall transfer to the Lessee such title to the Aircraft as the Lessor received pursuant to the Aircraft Purchase Agreement, free of all Lessor's Liens, and the Lessor shall, at the Lessee's cost, do such acts and things as the Lessee may reasonably require to ensure that title so vests in the Lessee. 19 Redelivery 19.1 At the end of the Lease Period (other than following a Total Loss) the Lessee at its own expense shall redeliver the Aircraft to the Lessor at the Redelivery Location, and the Lessee shall, at the Lessee's cost, de-register the Aircraft from the Aviation Authority and procure the issue of an export certificate of airworthiness in respect of the Aircraft. All other costs in connection with the export of the Aircraft from the State of Registration and any re-registration of the Aircraft shall be borne by the Lessor, provided that the Lessee shall, at the Lessor's cost, provide such assistance as the Lessor may reasonable require. 19.2 On redelivery: 49 (a) the condition of the Aircraft and the Manuals and Technical Records shall be such as to demonstrate that the Lessee has in all respects complied with the obligations on its part contained in clause 13; (b) the Aircraft shall be in as good operating condition as when delivered under this Agreement to the Lessee, ordinary wear and tear excepted, and free of corrosion unless such corrosion is within permitted limits as defined in the manufacturer's structural repair manual; (c) the Aircraft (i) shall have completed, immediately prior to redelivery, the next scheduled "C" check (or its equivalent) including all tasks required for a full "C" check, and which should include the next scheduled "SC" check (or its equivalent), provided however that such "SC" check (or its equivalent) is not an "S4C" check, and shall be at least equivalent in workscope to the systems, zonal and structures tasks for the respective "C" and "SC" checks in the Boeing Maintenance Planning Data Document ("MPD") under the Lessee's Approved Maintenance Programme and (ii) at redelivery shall have at least half time remaining until its next most comprehensive basic overhaul ("S4C" check) under the Approved Maintenance Programme; provided, however, that the Lessee may comply with clause (ii) above if (A) the Airframe has less than half time but more than quarter time, remaining until such next basic overhaul and (B) the Lessee pays to the Lessor the amount equal to (i) the average of the quotations of the cost of performing an "S4C" check on a Boeing 767-300ER aircraft of similar age as the Aircraft obtained from three third party providers of "S4C" checks of Boeing 767-300ER aircraft, one such third party provider being chosen by the Lessor, one being chosen by the Lessee and the third being acceptable to each of the Lessor and the Lessee (each acting reasonably), divided by (ii) the number of Flight Hours which a Boeing 767-300ER aircraft is scheduled under the Lessee's Approved Maintenance Programme to operate between one "S4C" check and the immediately following "S4C" check, for each Flight Hour less than half time remaining to such next basic overhaul; (d) with respect to the Aircraft, the nose and the main landing gears (the "landing gear") shall be half time (currently 9,000 Cycles) from overhaul. In no circumstance will landing gears be returned with less than quarter time remaining provided, however, that the Lessee may comply with this clause 19.1(d) if the landing gear has less than half time (currently 9,000 Cycles) remaining from the previous overhaul until the next overhaul the Lessee by paying to the Lessor $6.25 for each Cycle less than half time (currently 9,000 Cycles) remaining to such next overhaul; (e) the APU shall be fresh from overhaul; 50 (f) each Engine will be returned "half time" (which, for the purpose of this clause 19.2(f) shall mean the mean time of the Lessee's operated PW4060 engines between scheduled shop level repairs under the Lessee's Approved Maintenance Programme). In no circumstance will any Engine be returned with less than quarter time remaining (for the purpose of this clause 19.2(f) "quarter time" shall mean one half of half time). Each Engine will be within the manufacturer's EGT margins and all other parameters in accordance with the performance test in the manufacturer's manual or other comparable test as agreed to by the Lessor using temperature corrected charts, provided however that such tests shall be made on-wing using on-wing limitations. Each Engine's trend analysis will not have exhibited any negative deterioration. If an Engine has less than half time but more than quarter time, remaining until the next scheduled removal the Lessee shall pay to the Lessor One hundred and twenty five Dollars ($125) (adjusted for inflation between the date of this Agreement and the time of any such payment in accordance with the producer price index maintained by Denmark) for each Flight Hour less than half time remaining to the next scheduled removal in respect of such Engine; (g) there shall be a current Certificate of Airworthiness and, if required by the Lessor, an Export Certificate of Airworthiness issued in respect of the Aircraft by the Aviation Authority in the public transport category (passenger) and such current certificates of maintenance, review and release to service issued as shall allow the Aircraft to be used for the public transport of passengers or cargo under the regulations of the Aviation Authority; (h) all airworthiness directives and mandatory orders affecting the Aircraft issued by the Aviation Authority which require compliance prior to the date falling six (6) months (or the equivalent number of Flight Hours and Cycles based on the previous twelve (12) months of operation) after the last day of the Lease Period shall have been complied with, provided that (i) appropriate modification kits are available from the manufacturer concerned on or prior to the last day of the Lease Period, and (ii) such airworthiness directive or mandatory order is issued by the Aviation Authority not later than thirty (30) days prior to the re-delivery, provided that, for the purpose of this paragraph (h), any waiver, deviation or time extension obtained by the Lessee (or any Permitted Air Carrier) from the Aviation Authority and/or any other Government Entity shall be disregarded; (i) the Aircraft shall be free and clear of all Encumbrances other than Lessor's Liens; (j) the livery, insignia and markings of the Lessee (or any Permitted Air Carrier) shall have been removed from the Aircraft which shall be repainted, using the same quality of paint as the Lessee uses on other 51 Boeing 767-300ER aircraft in its fleet, at the Lessee's cost in the same colour as the surrounding area and in a workmanlike manner to produce a uniform appearance and the Lessee shall prepare the Aircraft for such repainting by restoring aerodynamic sealer to any area of stripped paint and wing, and horizontal stabilizer surfaces that are painted shall be touched-up as required wherever paint has peeled away or is otherwise worn out or missing, including control surfaces not requiring balancing due to painting; (k) the Aircraft exterior shall be washed, the interior shall be clean by international commercial airline standards, the cockpit instrument panels shall be repainted as required if worn beyond normal wear and tear and placards shall be replaced as required; (l) all equipment, parts, components, accessories and loose equipment shall be functioning in accordance with its intended use; (m) the Lessee shall have strictly adhered to the Boeing Corrosion Prevention and Control Programme ("CPCP"), or in the event that Boeing has not established a CPCP for the Boeing 767 aircraft, then the Lessee shall have strictly adhered to corrosion prevention and treatment programme in accordance with the Approved Maintenance Programme; (n) the Aircraft, except as otherwise provided in this Agreement or as consented to by the Lessor, shall be in the same configuration (including, but not limited to, interior seating configuration, the location of galleys and lavatories) as when the Aircraft was originally delivered to the Lessee hereunder; (o) neither the Aircraft nor any Engine shall have any open, deferred or placarded maintenance items or watch items, nor shall they have any time extensions, and the Aircraft and Engines shall comply with the operation specifications of the Lessee without waiver or exceptions; and (p) all repairs accomplished during the Lease Term of a temporary or interim nature, including repairs using blind fasteners and those requiring repetitive inspections or future upgrading, shall be upgraded to a permanent repair and all external doublers (scab patches) shall, if more than one doubler is located on adjacent skin panels, be replaced with flush repairs (unless such doubler is due to a service bulletin accomplishment), all in accordance with the applicable manufacturer's maintenance manual, structural repair manual, or other Aviation Authority approved data. 19.3 Immediately prior to re-delivery of the Aircraft, the Lessee shall, if the Lessor so requests in writing, make the Aircraft and the Manuals and Technical Records available to the Lessor for inspection during normal business hours in the jurisdiction in which the Manuals and Technical Records are located in order 52 to verify that the condition of the Aircraft complies with the provisions hereof. The period allowed for such inspection shall have such duration as to permit the conduct by the Lessor of the following: (a) inspection of the Manuals and Technical Records; (b) inspection of the Aircraft, Engines and Parts and the performance of a full cold and hot section borescope and isotope inspection of the Engines (the borescope inspections shall be performed by a representative of the Lessor and at the expense of the Lessor in the presence of a representative of the Lessee as observer). Any additional Engine checks and tests including, without limitation, engine power checks shall be performed at the cost of the Lessee; (c) the opening or removal of panels as reasonably required by the Lessor, including access to all compartments and bays that are accessible through access doors and all other compartments and bays that are opened during the "C" Check (or its equivalent), provided however that the Lessor agrees that the inspections referred to in this paragraph (c) shall be conducted during the "C" Check (or its equivalent) which is to be performed by the Lessee pursuant to clause 19.2(c) if (i) the Lessee shall have given the Lessor not less than ten (10) days advance notice of the time and location for the performance of such "C" Check (or its equivalent), as the case may be, and (ii) the Lessor shall be given the opportunity during such "C" Check (or its equivalent) to conduct all activities necessary to verify that the Aircraft complies with the requirements of this clause 19.2; and (d) if requested by the Lessor, and at the Lessee's expense, a two (2) hour test flight by the Lessee with a maximum of two (2) representatives of the Lessor as observer on board, who will determine, in co-operation with the flight crew of the Aircraft, which systems will be operated. The Lessee shall be responsible for all expenses associated with such flight test and the Lessee shall arrange the necessary crews and fuel. All discrepancies found during the flight test which are determined not to have been in compliance with the limits set out in the Lessee's Aviation Authority approved maintenance manual shall be corrected at the Lessee's expense. 19.4 If on redelivery the Aircraft (including the Manuals and Technical Records) shall not be in the condition required by clause 19.2 as shall be determined during the inspections and the test flight described in clause 19.3, the Lessor shall be entitled to require the Lessee at the Lessee's expense to rectify any defects or deficiencies in the Aircraft when it is redelivered, and the Lessee shall promptly (in any event, no later than thirty (30) days after being requested to do so) comply with any such requirement. To the extent that such rectification extends beyond the Lease Term, the Lessor may after consultation and with the agreement of the Lessee (a) remedy such defects and deficiencies 53 and recover on demand from the Lessee the costs so incurred, together with interest at the Relevant Rate of Interest from the date of expenditure by the Lessor of the relevant cost until the date of recovery thereof from the Lessee (both before and after any relevant judgment), or (b) continue the Lease Period on a day-to-day basis until such non-compliance is rectified by the Lessee with Rent being payable by SAS BV on a day-to-day basis at the rate at which Rent was payable at the date on which redelivery would otherwise have occurred. 19.5 Upon redelivery of the Aircraft, if requested by the Lessor by not less than thirty (30) days prior written notice, the Lessee agrees to provide at the Lessee's cost storage, storage maintenance and storage facilities for the Aircraft at a storage location selected by the Lessee for a period of up to ninety (90) days or such longer period as may be agreed between the Lessor and the Lessee. During any such period of storage the Aircraft shall be at the risk of the Lessor and the Lessor shall be responsible for the insurance of the Aircraft although the Lessee will, if requested to do so, co-operate with the Lessor in procuring insurance for the Aircraft during such period satisfactory to the Lessor. The Lessor shall be responsible for the cost of correcting any discrepancies discovered during such storage and the cost of complying with any airworthiness directive issued during the period of such storage and the cost of any other work requested by the Lessor which the Lessee agrees to perform. 19.6 Any other matters relating to the re-delivery of the Aircraft shall be resolved between the Lessee and the Lessor following discussions between them provided that any additional requirements (including, without limitation, any redelivery/ferry flight required by the Lessor once the Aircraft has been redelivered at the Delivery Location (excluding any flight to a storage location)) shall be for the cost of the Lessor. 19.7 In the event of any dispute between the Lessor and the Lessee regarding any matter contained within this clause 19 the dispute shall be resolved by three experienced and internationally recognised independent aircraft technical consultants, one of which shall be chosen by the Lessor, one by the Lessee and one by the mutual consent of the former two technical consultants (provided that, if either party shall fail to appoint technical consultants within thirty (30) days after a written request to do so by the other party then the second technical consultant shall be chosen by the technical consultant chosen by the other party) who shall inspect the Aircraft at the Redelivery Location (or such other location at which the Aircraft may be situated at the relevant time) with a view to preparing a report to be delivered to each of the Lessee and the Lessor at the same time within five (5) Banking days following the completion of such inspection and setting out the findings and conclusions of the said aircraft technical consultants regarding the matter in dispute and containing an opinion as to which party is liable and in what amount such party is liable to the other party. Each party to this Agreement agrees to be bound by the findings in such report. The costs of obtaining such report and the related inspection shall be borne by the Lessee if the aircraft technical consultants determine that the Aircraft is not in the redelivery condition required by this clause 19 but if the 54 Aircraft is in the condition required the Lessor shall be responsible for such costs. 19.8 For the purpose of determining whether or not the Aircraft is being tendered for re-delivery in a condition which complies or fails to comply with the requirements of this clause 19 the parties agree that the Lessee's Approved Maintenance Programme shall be used to establish any benchmark tests by reference to which the state and condition of the Aircraft should be ascertained by the independent aircraft technical consultants pursuant to clause 19.7. 19.9 At or upon the return of the Aircraft pursuant to clause 19.1, the Lessee shall deliver to the Lessor, at no cost to the Lessor, all service bulletin kits furnished without charge by a manufacturer for installation on the Aircraft which have not been installed together with appropriate instructions for installation provided with such kits. In the event such service bulletin or modifications kits were purchased or manufactured by the Lessee and have not yet been installed by the Lessee, then the Lessee shall provide, and the Lessor shall have the option to purchase, such kits at the Lessor's actual cost for a period of one hundred and eighty (180) days after re-delivery of the Aircraft, subject to availability. 19.10 The Lessee agrees to sell to the Lessor, within ninety (90) days following receipt by the Lessee of written notice from the Lessor given on or prior to the last day of the Lease Period, up to three ship-sets of galley inserts and/or cargo containers suitable for use on the Aircraft, and the Lessor agrees that the price of such galley inserts and/or cargo containers payable by the Lessor shall be the actual cost of the same to the Lessee, plus all Taxes levied or imposed on or in connection with such sale. 20 Termination Events 20.1 Each of the following events or circumstances shall constitute a Termination Event: (a) SAS BV fails to make any payment of Rent or other payment referred to in clause 7.3 payable by it under this Agreement within two (2) Banking Days or the Lessee shall fail to make payment of any other amount due and payable by the Lessee under this Agreement or any other Lessee Document, within seven (7) Banking Days, in either case (unless the Lessor is prohibited from giving any notice by applicable law) after written notice of non-payment has been received by the Lessee; or (b) the Insurances are not obtained and maintained in full force and effect in accordance with the provisions of clause 16 provided that, at any time the Aircraft is under requisition for hire, any invalidation of the Insurances resulting from such requisition shall not constitute a Termination Event if, for so long as, a Government Entity has issued indemnities in respect of the Aircraft satisfactory to the Lessor; or 55 (c) the Lessee commits any breach of or omits to observe any of the obligations or undertakings expressed to be assumed by it under any Lessee Document (other than those referred to in clauses 20.1(a) and (b) above) which failure could in the reasonable opinion of the Lessor materially and adversely affect the rights or interests of the Lessor hereunder or in any other Lessee Document or in the Aircraft and, in respect of any such breach or omission which in the reasonable opinion of the Lessor is capable of remedy, such action as the Lessor may reasonably require shall not have been taken within thirty (30) days of the Lessor notifying the Lessee in writing of such default and of such required action unless the failure has been waived or excused by the Lessor, provided, however, that if the Lessee shall have undertaken to cure any such failure relating to maintenance, service, repair or overhaul and, notwithstanding the reasonable diligence of the Lessee in attempting to cure such failure, such failure is not cured within the said thirty (30) day period but is curable with further due diligence within the next sixty (60) days, there shall exist no Termination Event so long as the Lessee is proceeding with due diligence to cure such failure and provided that such failure is cured within such additional sixty (60) day period and provided further that there exists no likelihood of the sale, forfeiture or loss of the Aircraft or any Engine or Part thereof; or (d) any representation or warranty made or deemed to be made or repeated by the Lessee or SAS BV in or pursuant to this Agreement is or proves to have been incorrect and such incorrectness is likely to have a material adverse effect on the ability of the Lessee or SAS BV to perform its obligations under this Agreement or could materially and adversely affect the rights, interest and position of the Lessor in the Aircraft and the Lessee or SAS BV (as applicable) is unable to remedy the incorrect representation or warranty within thirty (30) days of the Lessor notifying the Lessee and SAS BV in writing of such incorrectness and specifying the action to be taken by the Lessee or SAS BV (as applicable) to remedy such incorrectness; or (e) the Lessee or SAS BV suspends payment of its debts as they fall due or becomes insolvent or unable to pay its debts or admits inability to pay its debts as they fall due or proposes or enters into any composition or other arrangement for the benefit of its creditors generally or any class of creditors or proceedings are commenced in relation to the Lessee or SAS BV under any law, regulation or procedure relating to reconstruction or readjustment of debts under any jurisdiction or with any Government Entity; or (f) the Lessee or SAS BV takes any action or any legal proceedings are started in any jurisdiction or with any Government Entity for (i) the Lessee or SAS BV to be adjudicated or found bankrupt or insolvent, (ii) the winding-up or dissolution of the Lessee or SAS BV (other than in respect of any amalgamation or reorganisation not arising out of 56 insolvency), (iii) the appointment of a liquidator, trustee, receiver, or similar officer of the Lessee or SAS BV of the whole or any part of its undertaking, assets, rights or revenues, or (iv) the judicial protection of the Lessee or SAS BV from its creditors (not, in any such case, being action or legal proceedings that the Lessee or, as the case may be, SAS BV can demonstrate are frivolous, vexatious or an abuse of the process of the court or which the Lessee or, as the case may be, SAS BV discharges within thirty (30) days of the Lessor becoming aware of the same or which the Lessee or, as the case may be, SAS BV is contesting in good faith and by appropriate proceedings); or (g) save where the relevant circumstance constitutes a Total Loss, the Aircraft is arrested, confiscated, seized, taken in execution, impounded, forfeited or detained in exercise or purported exercise of any possessory lien or other claim and the Lessee fails to procure the release of the Aircraft within thirty (30) days (except as a consequence of any of (i) the existence of a Lessor's Lien, or (ii) a breach by the Lessor of the provisions of clause 6.1 or clause 6.2); or (h) the registration of the Aircraft in accordance with the provisions of clause 15.2 is cancelled otherwise than (i) in connection with the re-registration of the Aircraft upon the commencement or termination of a sub-lease of the Aircraft permitted under the provisions of clause 12.2(c), or (ii) as a result of the occurrence of a Total Loss or (iii) as a result of any act or omission of the Lessor not arising out of a breach by the Lessee of its obligations under this Agreement or any other Lessee Document or at the request of the Lessee; or (i) the validity or enforceability of any of the Lessee Documents shall at any time and for any reason be contested by any party thereto (other than the Lessor), or if any such party shall deny that it has any, or any further, liability thereunder or shall otherwise repudiate any of the Lessee Documents. 21 Lessor's Rights Following a Termination Event 21.1 At any time after the occurrence of any Termination Event (and provided that the same is continuing) the Lessor may, by notice (except in the case where any such notice is prohibited by law) to the Lessee: (a) proceed by appropriate court action to enforce performance by the Lessee and/or SAS BV of the applicable covenants and provisions of this Agreement or to recover damages for the breach thereof; and/or (b) terminate the Lease Period with respect to the Aircraft (including, without limitation, the termination of any sub-lease) on the termination date specified in such notice and retake possession of the Aircraft, and the Lessee agrees that the Lessor may for this purpose enter upon any 57 premises where the Aircraft or any part thereof may be located, and the Lessee or (in the case of amounts for which SAS BV is liable in accordance with clause 7.3) SAS BV shall pay to the Lessor forthwith upon such termination such sum as shall equal the aggregate of: (i) all amounts (including Rent) due under the Lessee Documents as of the date of termination of the Lease Period as shall be payable and remain outstanding; and (ii) all losses incurred by the Lessor in connection with such termination including, without prejudice to the generality of the foregoing, all costs and expenses so incurred in recovering possession of the Aircraft, in moving the Aircraft to the Redelivery Location and in carrying out any works or modifications required to bring the Aircraft up to the condition specified in clause 19.2. 21.2 If the Lessee fails to comply with any of its obligations under any Lessee Document the Lessor may upon giving the Lessee written notice of its intention to do so, without being in any way obliged so to do, or responsible for so doing, and without prejudice to the ability of the Lessor to treat that non-compliance as a Termination Event, effect compliance on the Lessee's behalf, and if the Lessor incurs any expenditure in effecting such compliance the Lessor shall be entitled (without prejudice to clause 21.1) to recover such expenditure from the Lessee together with interest thereon at the Relevant Rate of Interest from the date on which such expenditure is incurred by the Lessor until the date of reimbursement thereof by the Lessee (both before and after any relevant judgment). 21.3 The rights and remedies of the Lessor provided in this Agreement are cumulative and are not exclusive of any rights and remedies provided by law. 22 Notices 22.1 Every notice, request, demand or other communication under this Agreement shall be in writing delivered personally or by first class prepaid letter (airmail if available) or facsimile transmission addressed as follows: (a) be sent: (i) to the Lessor to:- CIT Leasing (Bermuda), Ltd. Clarendon House 2 Church Street Hamilton Bermuda 58 Fax: (1) 809-292-4720 (Attention: The Secretary) with a copy to:- The CIT Group/Equipment Financing, Inc. 1211 Avenue of the Americas New York N.Y. 10036 Phone: (1) 212-536-9490 Fax: (1) 212-536-1388 Attention: General Counsel (ii) to the Lessee to:- Scandinavian Airlines System, SAS Finance (Dept. STOUY), Frosundaviks Alle 1, S-161 87 Stockholm, Sweden Fax: 46 8 85 58 76 Attention: SAS Finance (iii) to SAS BV to:- Regentlaan 45 1000 Brussels Belgium Fax: 322 514 5714 Attention Managing Director with a copy to the Lessee or to such other address or facsimile number as is notified by one party to the other under this Agreement. Save as otherwise expressly provided in this Agreement, a notice, request, demand or other communication shall be deemed to have been received, in the case of a letter, when personally delivered or five (5) days after it has been put in the post or, in the case of a telefax, on electronic confirmation by the recipient of actual receipt or, if earlier, on actual or deemed receipt by the recipient of a confirmatory letter. 22.2 All documents, notices, communications, evidence, reports, opinions and other documents given or to be given under this Agreement, unless made in the English language, shall (unless expressly provided to the contrary) be accompanied by an English translation and the English version of all such 59 documents, notices, communications, evidence, reports, opinions and other documents shall, to the extent permitted by applicable law, govern in the event of any conflict with the non-English version thereof. 23 Assignment 23.1 Neither the Lessee nor SAS BV may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the Lessor (such consent not to be unreasonably withheld or delayed). 23.2 (a) Save for, and pursuant to, the Assignment and the Mortgage, the Lessor may not assign or otherwise transfer any or all of its rights, benefits or obligations under or pursuant to any Lessee Document without the prior written consent of the Lessee (such consent not to be unreasonably withheld or delayed), other than to:- (i) in the case of an assignment or transfer of all the Lessor's rights and obligations under the Lessee Documents, an Affiliate of the Lessor, provided that (if such Affiliate has, or has at any time in the twelve (12) month period immediately preceding the proposed date of such assignment or transfer had, a tangible net worth of less than $50,000,000) such assignment or transfer shall be conditional upon the receipt by the Lessee of a guarantee issued by the Parent of all such Affiliate's obligations to the Lessee in the same form (mutatis mutandis) as the Guarantee (unless such Affiliate's obligations are covered by the Guarantee), and (if a new guarantee is to be provided) a legal opinion obtained at the cost of the Lessor in form and substance reasonably satisfactory to the Lessee in respect of such guarantee and assignment and transfer; or (ii) in the case of an assignment or transfer of all the Lessor's rights and obligations under the Lessee Documents, a person:- (1) who has and had at all times during the twelve (12) month period immediately preceding such proposed assignment or transfer, a net worth of not less than $50,000,000; and (2) who is not a commercial airline in competition with the Lessee; and (3) who is constituted by no more than four persons provided however that one person shall have full power and authority, as agent, to take any and all actions of the Lessor contemplated or permitted by any of the Lessee Documents, including, without limitation, the grant of consents or waivers thereunder; and 60 (4) who, in the case of any transfer or assignment of rights which is not accompanied by the assignment or transfer of all obligations pursuant to the Lessee Documents, prior to such assignment or transfer, issues (and procures that any mortgagee of such person issues) to the Lessee a letter of quiet enjoyment in the same form (mutatis mutandis) as the Letter of Quiet Enjoyment; and (5) who, prior to any such assignment or transfer which involves a transfer of obligations of the Lessor pursuant to the Lessee Documents, represents and warrants to the Lessee substantially in the terms of the Lessor's representations and warranties set out in the Lessee Document, but as if references to "Bermuda" were references to the country or state of incorporation of such person, and provided that, notwithstanding any other provision of this clause 23. the Lessee shall have no liability or obligation under or pursuant to any Lessee Document after any assignment or transfer by the Lessor of any or all of its rights, benefits or obligations under or pursuant to any Lessee Document in respect of any cost, expense or liability which, at the time of such assignment or transfer, is, or could reasonably be foreseen (as a result of a change in law not then in effect) will be, in excess of what would have been incurred had such assignment or transfer not taken place and provided further that the Lessor may not make any such assignment or transfer, unless the Lessee is first indemnified to its reasonable satisfaction from and against any cost, expense or liability which may be incurred by the Lessee in connection with such assignment or transfer which would not have been incurred by the Lessee if such assignment or transfer had not taken place and further provided that the restrictions set out in paragraphs (a)(i) and (ii) above shall not apply at any time a Termination Event has occurred and remains outstanding. (b) The Lessor undertakes and agrees that it will not execute the Assignment or the Mortgage unless and until each beneficiary thereof has agreed with the Lessee to issue a Letter of Quiet Enjoyment to the Lessee and the Lessee agrees, upon receipt of such Letter of Quiet Enjoyment, to cooperate in good faith with the Lessor, at the request and cost of the Lessor in relation to any acts or things as may be required to protect the rights of any beneficiary of the Assignment and/or the Mortgage. 23.3 The agreements, covenants, obligations and liabilities contained in this Agreement on the part of the Lessee and the obligations contained in this Agreement on the part of SAS BV, including, but not limited to all obligations to pay Rent and indemnify the Lessor, are made for the benefit of the Lessor, any assignee or transferee of the Lessor and their respective successors and assigns. 61 23.4 The agreements, covenants, obligations and liabilities contained in this Agreement on the part of the Lessor, are made for the benefit of the Lessee and SAS BV, any assignee or transferee of the Lessee or SAS BV (as applicable) and their respective successors and assigns. 24 Miscellaneous 24.1 The Lessee Documents contain the entire agreement between the Lessor, the Lessee and SAS BV relating to the leasing of the Aircraft, and the terms and conditions of any Lessee Document shall not be varied otherwise than by an instrument in writing of even date herewith or subsequent hereto executed by or on behalf of the parties thereto. 24.2 No failure or delay on the part of the Lessor in exercising any right, power or remedy under this Agreement or any other Lessee Document shall operate as a waiver thereof, nor shall any single or partial exercise by the Lessor of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided in this Agreement and the other Lessee Documents are cumulative and are in addition to any remedies provided by law. 24.3 Subject to the periods of grace referred to in clause 20, time shall be of the essence as regards the performance by the Lessee and SAS BV of their respective obligations under this Agreement. 24.4 The Lessee shall from time to time do and perform such other and further acts and execute and deliver any and all such further instruments as may be required by law or reasonably requested in writing by the Lessor to establish, maintain and protect the rights and remedies of the Lessor and to carry out and effect the intent and purposes of this Agreement. 24.5 This Agreement may be executed in any number of counterparts and by each of the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original, and all of which, taken together, shall constitute one and the same instrument. 24.6 If any provision of this Agreement shall become invalid, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired. 24.7 Time and strict and punctual performance are of the essence with respect to the payment obligations of the Lessee under this Agreement. 25 Confidentiality 25.1 At all times during the continuance of this Agreement and for a period of seven (7) years after the end of the Lease Term, each of the parties hereto shall keep 62 confidential and shall not, without the prior written consent, in the case of the Lessee or SAS BV, of the Lessor and, in the case of the Lessor, of the Lessee, disclose to any other person the subject matter of this Agreement or any other Lessee Document and the transactions contemplated hereby or any other agreement entered into after the date hereof by the Lessor, the Lessee and SAS BV or any of them in connection with this Agreement or any other Lessee Document provided that the parties hereto shall be entitled, without any such consent, to disclose the same: (a) in connection with any proceedings arising out of or in connection with this Agreement or any of the other Lessee Documents; or (b) if required to do so by an order of a court of competent jurisdiction whether in pursuance of any procedure for discovery of documents or otherwise; or (c) pursuant to any law or regulation having the force of law; or (d) to any fiscal, monetary, tax, governmental or other competent authority; or (e) to the auditors, legal or other professional advisors of the Lessee, SAS BV or the Lessor or the Lessor's, the Lessee's or SAS BV's parent, subsidiary or affiliate (direct or indirect) companies; or (f) if any of the same is or shall become publicly known otherwise than as a result of a breach by such party of this clause 25; or (g) in any manner contemplated by any of the Lessee Documents; or (h) to directors, officers and employees of the Lessor, the Lessee or SAS BV, or their respective parent companies (direct or indirect), any of its subsidiaries or affiliates (direct or indirect), or any of such subsidiary's or affiliate's parent companies, and to legal counsel of any of the foregoing. In the event of any disclosure to any person or party pursuant to sub-paragraphs (e) or (h) above, each of the Lessor, the Lessee and SAS BV agrees to use its best efforts to inform such person or party of the confidential nature of the information and use its best efforts to secure from such persons an agreement not to disclose the Information. In the event of any request for disclosure of Information pursuant to sub-paragraphs (a)-(d) above, each of the Lessor, the Lessee and SAS BV agrees (if and to the extent permitted by law) to use its best efforts to provide the others with advance notice of any such request for disclosure as promptly as feasible in order that the affected party may seek a protective order or such other appropriate remedy as the affected party deems necessary; provided that none of the Lessor, the Lessee or SAS BV shall have an obligation to undertake any action in order to maintain the confidentiality of 63 the Information where the request for the disclosure is made pursuant to sub-paragraphs (a)-(d) above other than the obligation to use its best efforts to give notice as provided by this Agreement. The term "Information" includes all written financial and other information furnished by one party to one or more of the other parties to this Agreement in connection with this Agreement and which is identified to the recipient(s) as confidential by being marked "Confidential". 26 Law and Jurisdiction 26.1 This Agreement is governed by and shall be construed in accordance with English law. 26.2 For the benefit of the other party, each party to this Agreement irrevocably agrees that any legal action or proceedings in connection with this Agreement or any other Lessee Document which is expressed to be governed by English law, against either party or any of its assets may be brought in the English Courts, which shall have jurisdiction to settle any disputes arising out of or in connection with this Agreement or any other Lessee Document and each party hereby irrevocably and unconditionally submits to the jurisdiction of the English Courts. 26.3 The submission to jurisdiction referred to in clause 26.2 shall not (and shall not be construed so as to) limit the rights of either party to this Agreement to take proceedings against the other party in the courts of any other competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdiction, whether concurrently or not. 26.4 Each party to this Agreement irrevocably waives any objection it may now or hereafter have to the laying of venue of any action or proceeding in any court and any claim it may now or hereafter have that any action or proceeding has been brought in an inconvenient forum. 26.5 Each of the Lessee and SAS BV hereby irrevocably designates, appoints and empowers Scandinavian Airlines System at present of 52-53 Conduit Street, London W1R 0AY to receive for it and on its behalf service of process issued out of the English courts in any legal action or proceeding arising out of or in connection with this Agreement and/or any other Lessee Document. The Lessee confirms its acceptance of its appointment by SAS BV referred to above. 26.6 The Lessor hereby irrevocably designates, appoints and empowers London Law Agency Limited at present of Temple Chambers, 84 Temple Avenue, London EC4Y 0HP to receive for it and on its behalf service of process issued out of the English courts in any legal action or proceeding arising out of or in connection with this Agreement and/or any other Lessee Document to which it is a party. 64 26.7 Each party to this Agreement agrees that in any legal action or proceedings against it or its assets in connection with this Agreement and/or any other Lessee Document no immunity from such legal action or proceedings (which shall include, without limitation, suit, attachment prior to judgment, other attachment, the obtaining of judgment, execution or other enforcement) shall be claimed by or on behalf of its or with respect to its assets, irrevocably waives any such right of immunity which it or its assets now have or may hereafter acquire or which may be attributed to it or its assets and consents generally in respect of any such legal action or proceedings to the giving of any relief or the issue of any process in connection with such action or proceedings including, without limitation, the making, enforcement or execution against any property whatsoever (irrespective of its use or intended use) of any order of judgment which may be made or given in such action or proceedings. IN WITNESS whereof the parties hereto have caused this Agreement to be duly executed the day and year first above written. 65 Schedule 1 List of Documents and Evidence Part 1 1 (a) A copy, certified by a duly authorised representative of the Lessee to be a true. complete and up-to-date copy, of the Consortium Agreement and the Inter-Government Agreement; and (b) A copy, certified by a duly authorised representative of SAS BV to be a true, complete and up to date copy, of the constituent documents of SAS BV. 2 A certificate, executed by a duly authorised representative of the Lessee certifying that the board of directors of the Lessee has:- (a) approved the transactions contemplated by such of the Lessee Documents to which the Lessee is a party; and (b) authorised a person or persons to execute and deliver on behalf of the Lessee such of the Lessee Documents to which it is a party and any notices or other documents to be given pursuant thereto. 3 A power of attorney, duly executed by SAS BV, authorising a person or persons to execute and deliver on behalf of SAS BV this Agreement. 4 Specimen signatures, authenticated by a duly authorised representative of the relevant person of each of the authorised signatories referred to in clauses 2(b) and 3 of this schedule 1. 5 Evidence that all governmental and other licences, approvals, consents, registrations and filings necessary for any matter or thing contemplated by the Lessee Documents and for the legality, validity, enforceability, admissibility in evidence and effectiveness thereof (including, but without prejudice to the generality of the foregoing, any exchange control approvals that may be required) which the Lessee or SAS BV is required to obtain pursuant to the Lessee Documents, have been obtained or effected on an unconditional basis and remain in full force and effect (or, in the case of effecting of any registrations and filings, that arrangements reasonably satisfactory to the Lessor have been made for the effecting of the same within any applicable time limit). 6 Evidence reasonably satisfactory to the Lessor that all steps which it is reasonably practicable to take on or prior to the Delivery Date have been taken by the Lessee to obtain or facilitate the registration of the Aircraft with the Aviation Authority in Norway on a permanent basis in the name of the Lessor and for the issuance by the Aviation Authority of a certificate of airworthiness. 66 Part 2 1 (a) Originals or certified copies of certificates evidencing the insurance required to be maintained pursuant to clause 16; and (b) a letter addressed to the Lessor by a recognised firm of aviation insurance brokers reasonably satisfactory to the Lessor confirming that the insurance required to be maintained pursuant to clause 16 adequately protects the interests of the Lessor; and (c) a letter of undertaking addressed to the Lessor from the Lessee's insurance brokers in form and substance reasonably satisfactory to the Lessor. 2 A certified copy of each of:- (a) the Certificate of Airworthiness in the public transport category (passenger) issued by the Aviation Authority with respect to the Aircraft, (b) the current Air Operator's Certificate issued by the Aviation Authority to the Lessee with respect to aircraft of the type of the Aircraft, (c) a certified copy of the Dispensation. 3 Two original copies of the Aircraft Purchase Agreement and the Warranties Assignments (as defined in the Aircraft Purchase Agreement) executed by each of the parties thereto. For the avoidance of doubt, the foregoing reference to Warranties Assignments as a condition precedent shall not include a reference to any consent of any third party contemplated by any such Warranty Assignment. 4 A certificate signed by a duly authorised officer of the Lessee, dated the Delivery Date, to the effect that:- (a) the representations and warranties made by each of the Lessee and SAS BV contained in the Lessee Documents are true and correct on and as of such date as though made on and as of such date and all authorisations and approvals of, giving of notice to, and filings and recordings with, all regulatory bodies and authorities which may be conditions to the validity or enforceability of the Lessee Documents or the Lessee's or SAS BV's performance of the terms thereof have been duly accomplished; and (b) no Relevant Event or Termination Event has occurred and is continuing or would result from the lease of the Aircraft. 5 Legal opinions of Dutch, Swedish, Danish and Norwegian counsel to the Lessee on matters relating to the Lessee Documents or the registration of the Aircraft (as the case may be) and on matters of Dutch, Swedish, Danish or Norwegian 67 law (as the case may be) in form and substance reasonably satisfactory to the Lessor. 6 Legal opinion of English counsel to the Lessee on matters relating to the Lessee Documents and on matters of English law, in form and substance reasonably satisfactory to the Lessor. 7 Executed copies of each of the Lessee Documents. 8 An executed copy of the letter from the Lessee (as Seller) to the Lessor (as Buyer) as to payment of the purchase price of the Aircraft pursuant to the Aircraft Purchase Agreement). 68 Part 3 1 A copy certified by the Secretary of the Lessor to be a true, complete and up-to-date copy, of the constitutional documents of the Lessor. 2 A copy, certified by the Secretary of the Lessor to be a true copy, and as being in full force and effect and not amended or rescinded, of resolutions of the board of directors of the Lessor:- (a) approving the transactions contemplated by the Lessee Documents; and (b) authorising a person or persons to execute and deliver on behalf of the Lessor, the Lessee Documents to which it is a party and any notices or other documents to be given pursuant thereto. 3 Specimen signatures, verified by an Incumbency Certificate of the Lessor of each of the authorised signatories referred to in clause 2(b) of this schedule 1. 4 Evidence that all governmental and other licences, approvals, consents, registrations and filings necessary for any matter or thing contemplated by the Lessee Documents and for the legality, validity, enforceability, admissibility in evidence and effectiveness thereof (including, but without prejudice to the generality of the foregoing, any exchange control approvals that may be required) which the Lessor is required to obtain pursuant to the Lessee Documents, have been obtained or effected on an unconditional basis and remain in full force and effect. 5 Legal opinions from (a) Conyers, Dill & Pearman on matters of Bermudan law, (b) Schulte, Roth and Zabel on matters of New York law relating to the Guarantee, and (c) in-house counsel of the Guarantor on matters relating to the Guarantee, in each case in form and substance reasonably satisfactory to the Lessee. 6 Two original copies of the Aircraft Purchase Agreement duly executed by each of the parties thereto. 7 The Parent Guarantee duly executed by the Parent. 8 Copies of the Certificate of Incorporation and By-Laws of the Parent certified as true, complete and up-to-date as of the Delivery Date by a duly authorised officer of the Parent. 9 An application for the registration of the Lessor with the Aviation Authority as the owner of the aircraft prepared by the Lessee and duly executed by the Lessor. 69 10 A certified copy of the confirmation of London Law Agency Limited of its acceptance of its appointment of the Lessors process agent. 70 Schedule 2 Acceptance Certificate This Acceptance Certificate is delivered, on and as of the date set forth below by SCANDINAVIAN AIRLINES SYSTEM Denmark-Norway-Sweden (the "Lessee"), to CIT LEASING (BERMUDA), LTD., (the "Lessor"), pursuant to an Aircraft Lease Agreement dated ____ December, 1993, and made between the Lessor and the Lessee (the "Agreement"). Details of Acceptance The Lessee hereby indicates and confirms to the Lessor its successors and assigns, that the Lessee has at ____ hours (London time) on this day of ____ December, 1993, at _________ accepted the following in accordance with the provisions of the Agreement: (a) Model: Boeing 767-300ER jet airframe, Norwegian Registration Mark LN-RCG and Manufacturer's Serial No. 24475 (b) Two (2) Pratt & Whitney PW4060 Engines with Manufacturer's Serial Numbers 724137 and 724170. Confirmation of Undertakings The terms used in this Certificate shall have the meaning given to such terms in the Agreement. The Lessee confirms that as at ____ hours (London time) today, being the Delivery Date as defined in the Agreement: (i) the Aircraft was duly accepted by the Lessee in accordance with and subject to all of the terms and conditions contained in the Agreement and the execution and delivery of this Certificate further confirms the acceptance of the Aircraft by the Lessee for all purposes of the Agreement; (ii) the Lease Period commenced and the Lessee became obliged to pay to the Lessor the amounts provided for in the Agreement with respect to the Aircraft; (iii) the Aircraft is insured in accordance with the Agreement; (iv) the representations and warranties made by the Lessee under clause 2 of the Agreement remain, and if made at the date hereof, would be, true and correct in all respects; (v) the Aircraft conforms to the Lessee's requirements; 71 (vi) the Aircraft is satisfactory to the Lessee in all respects; (vii) fuel on board is ____ kgs; (viii) no Relevant Event has occurred or will result from Delivery taking place; (ix) loose equipment on the Aircraft are as set out in Appendix "A" hereto and the Manuals and Technical Records are as set out in Appendix "B". The Lessee confirms that each instalment of Rent payable under clause 7.1(a) of the Agreement shall be the sum of $680,481. IN WITNESS WHEREOF the Lessee has caused this Acceptance Certificate to be executed in its name, but its duly authorised officer(s) or representative(s), pursuant to due corporate authority, this ____ day of December, 1993. SIGNED by ) for and on behalf of ) ------------------------------ SCANDINAVIAN AIRLINES ) SYSTEM Denmark-Norway-Sweden ) 72 [LOGO] TECHNICAL EQUIPMENT CHECK LIST 767-300ER AC Reg APPENDIX "A" 1993-99-1 - -------------------------------------------------------------------------------- Chk Qty No. Description - -------------------------------------------------------------------------------- All items checked by maintenance at A-check. o - Items checked by AUP at originating station or crew change. x - Items checked by cabin crew at originating station or crew change. m - Items checked by maintenance personnel at MSC. - -------------------------------------------------------------------------------- FLIGHT DECK 1 Pinto Board o 4 pr D243426 Emergency Evacuation Gloves o 4 465970 Smoke Goggles, EROS, P/N MXP 210-00 3 475092 Hand Microphone, TELEX 38T 2 475093 Boomset, Airman 750 3 Headset, Sennhereer P/N 681647 2 Normal Check List o 2 Emergency/Malfunction Check List 1 Tool Kit, sealed (M 648-033 cockpit) 6 Sun Visor, small (4), large (2) o 4 F81XS SAS Flashlight o 4 467532 Life Vest, red 3 Aircraft Log, FLIGHT DECK (brown cover) o 1 Chart Folder -300ER m 1 EICAS Log o 1 Flight Manual o 1 Ship's Library, AOM Vol 1 & 2, FRM, AHM, SHH 1 Flight Document Folder, FDF 1 Map Folder (National Geographic) o 1 688181 Smoke Hood o 1 915 Dynalite flashlight o 1 42D8331 Fire Axe o 1 pr 85027 Fire Protection Gloves o 1 Handcuff kit o 1 467502 Fire Extinguisher, Halon, sealed o 1 Fueling Order Pad 5 Gear Pins 4 [illegible] Tube Cover o 1 452-205 VHF Emergency Transceiver 1 Technical Equipment Check List 1 Certificate Folder, sealed 1 Route Manual Box, sealed o 1 476932 Handset interphone & PA, P/N 285N 0412-3 FORWARD COATROOM 1 Extension cushion for 1st observer's seat o 1 Cold weather suit, DA400614 x 1 Key to Flight Deck door x 1 Wheel Chair o 4 Polar suits and Down boots for F/D, in two bags CABIN, GENERAL m 685674 Life Vest, yellow, one under each pass. seat incl. crew rest seat m Polar suit, one under each pass. seat, incl. crew rest seat Slide/Raft, one at each cabin door FWD LEFT CABIN DOOR (C/A 1 and 7) x 1 + 1 467532 Life Vest, red x 1 + 1 Flashlight, emergency, P2-07-0003-001 x 1 + 1 Cabin Emergency Check Lists x 1 + 1 C/A Pre-Flight Check List x 1 Technical Equipment Check List (C/A 1) x 1 Safety on Board folder (C/A 7) x 1 476932 Handset, interphone (C/A 1) x 1 490179 Megaphone (check for function) VIDEO CONTROL CENTER (VCC) x 1 F81XS Flashlight, SAS x 1 476932 Handset, interphone x 1 Cabin Log x 1 CAM, COP and Video Folder x 1 Cabin Failure Guide (CFG) x 1 5207F Eurosleeper Kit x 3 Polar suits and Down boots for C/A 1, 7 and 4 x 1 Key to C/A Slow FWD RIGHT CABIN DOOR (C/A 4) x 1 467532 Life Vest, red x 1 Flashlight, emergency, P2-07-0003-001 x 1 F81XS Flashlight, SAS x 1 Safety on Board folder x 1 C/A Pre-Flight Check List C/A 4 x 1 Cabin Emergency Check Lists x 1 476932 Handset, interphone G4 STOWAGE LH x 1 467502 Fire Extinguisher, Halon, sealed x 1 452-101 ELT (Radio Beacon), sealed x 1 451-105 Oxygen Bottle 310 l, min press 1500 psi x 2 742850 Oxygen mask x 1 Dangerous Goods kit, DA 400494 x 1 467536 Life Vest, Demo x 1 Oxygen Demo kit, DA 400628 x 2 688181 Smoke Hood x 1 453-000 First Aid kit, sealed x 4 685674 Life Vest, yellow, reserve x 2 820003 Artificial Respiration Mask x 2 451-103 Oxygen Bottle 120 l, min press 1500 psi x 4 742880 Oxygen mask x 1 453-004 Doctor's Kit, sealed G4 STOWAGE RH x 1 467502 Fire Extinguisher, Halon, sealed x 1 451-103 Oxygen Bottle 310 l, min press 1500 psi x 2 742880 Oxygen mask x 1 467536 Life Vest, Demo x 1 688181 Smoke Hood x 1 Oxygen Demo-kit, DA 400628 x 2 685674 Life Vest, yellow, reserve x 1 453-000 First Aid kit, sealed DOGHOUSE, D6 x 1 451-105 Oxygen Bottle 310 l, min press 1500 psi x 2 742880 Oxygen Mask x 1 451-103 Oxygen Bottle 120 l, min press 1500 psi x 2 742880 Oxygen mask x 1 820003 Artificial Respiration Mask x 2 467536 Life Vest, Demo x 2 Oxygen Demo-kit, DA 400628 x 1 Polar suit and Down boots (C/A 6) DOG HOUSE D4, RH x 1 467502 Fire Extinguisher, Halon, sealed x 1 688181 Smoke Hood DOG HOUSE D3, LH x 1 467502 Fire Extinguisher, Halon, sealed OVER WING AREA (C/A 3 and C/A 6) x 1 + 1 Cabin Emergency Check Lists x 1 + 1 C/A Pre-Flight Check List x 1 + 1 Safety on Board folder x 1 + 1 Flashlight, emergency P2-07-0003-001 x 1 F81XS Flashlight, SAS (C/A 3) x 1 + 1 467532 Life Vest, red x 1 476932 Handset, interphone (C/A 3) LAVATORY E STOWAGE S9 AND S10 x 2 467502 Fire Extinguisher, Halon, sealed x 1 256-002 Fire Extinguisher, H2O, sealed x 1 Fire Axe x 1 688181 Smoke Hood x 1 pr 85027 Fire Protection Gloves, 650104 x 15 467538 Life Vest, infant x 15 Infant/Extension belt P/N 501695-405 (or DA-400510-1) Effective: 17SEP83 Issue No: 13 - -------------------------------------------------------------------------------- DOG HOUSE D6 2 451-105 Oxygen Bottle 310 l, min. press. 1500 psi x 4 742880 Oxygen Mask x 1 461-103 Oxygen Bottle 120 l, min. press. 1500 psi x 2 742880 Oxygen Mask x 1 620003 Artificial Respiration Mask x 2 467536 Life Vest, Demo x 2 Oxygen Demo-kit, DA 400628 x 1 Polar suit and Down boots (C/A 3) AFT LEFT CABIN DOOR (C/A 5 and 8) x 1+1 Cabin Emergency Check Lists x 1+1 C/A Pre-Flight Check List x 1+1 Safety on Board folder x 1+1 Flashlight, emergency, P2-07-0003-001 x 1+1 467532 Life vest, red C/A 8 x 1 476932 Handset, interphone x 1 490179 Megaphone (in G5, check for function) DOG HOUSE D9 x 2 451-105 Oxygen Bottle 310 l, min. press. 1500 psi x 4 742880 Oxygen Mask x 2 451-103 Oxygen Bottle 120 l, min. press. 1500 psi x 4 742880 Oxygen Mask x 1 820003 Artificial Respiration Mask x 2 Polar suit and Down boots for C/A 5 and 8 AFT CENTER DOGHOUSE D 11 x 2 463-000 First Aid Kit ____ sealed x 1 467502 Fire extinguisher, Halon, ____ sealed x 1 688181 Smoke Hood AFT RIGHT CABIN DOOR (C/A 2) x 1 Cabin Emergency Check Lists x 1 C/A Pre-Flight Check List C/A 2 x 1 Safety on Board folder x 1 Flashlight, emergency, P2-07-0003-001 x 1 F81XS Flashlight, SAS x 1 467532 Life Vest, red x 1 476932 Handset, interphone DOG HOUSE D10 x 2 451-105 Oxygen Bottle 310 l, min. press. 1500 psi x 4 742880 Oxygen Mask x 2 461-103 Oxygen Bottle 120 l, min. press. 1500 psi x 4 742880 Oxygen Mask x 1 820003 Artificial Respiration Mask x 1 Polar suit and Down boots for C/A 2 AFT CENTER DOGHOUSE D12 x 1 452-101 ELT (Radio Beacon ____ sealed x 1 467502 Fire Extinguisher, Halon, ____ sealed x 1+1 688181 Smoke Hood x 6 685674 Life Vest, yellow, reserve - -------------------------------------------------------------------------------- Comfort/Service items to be carried on flight deck: - - 6 x Sanitary napkin,SANI-COM, 420-016-01 - - 3 x Instrument Screen Cleaner, VISIAL, 361-107-01 - - 12 x Ear Covers, 6 ea DE 1204, 6 ea D125083 - - 2 x Waste Bag. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- Arctic survival equipment: Polar suits P/N 1443R SAS Down boots P/N SAS 838644 Bag, cont. 2 ea polar suits and 2 ea down boots DA 300258 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- loading and checks Notify P-I-C of any C/A signature pertains only to technical remarks for items marked x entering in A/C Log. - ----------------------------------------------------- Station Date Sign. Time Station Date Sign. Time Notes about discrepancies - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- Appendix "B" Manuals and Technical Records 0 Maintenance Program: Complete description and copy of 1 set present maintenance program to include time controls, maintenance intervals and program planning schedule. 1 MM: Maintenance Manual for APU, Engines and Airframe 1 set 2 IPC for APU, Engines and Airframe 1 set 3 Wiring Diagram Manual 1 set 4 System Schematics 1 set 5 Ramp Maintenance Manual 1 set 6 B.I.T.E. Manual 1 set 7 Fault Isolation Manual 1 set 8 Fault Reporting Manual 1 set 9 Weight and Balance Manual 1 set/AC 10 Fuel Measuring Sticks Tables for Off Altitude Conditions 1 set Boeing Document No D345T030 (Fuelling Procedures) 11 Interior Finish Specification 1 set 12a Boeings Flight Operations Manual (FOM) 1 set 12b SAS Aircraft Operations Manual (AOM) 1 set/AC 13 FAA Approved Flight Manual (AFM) 1 set/AC 14 SAS Emergency Malfunctioning Checklist 1 set/AC 15 Aircraft Readiness Log 1 set/AC 16 Aircraft Log Books 1 set/AC 17 Engine Log Books 1 set/AC 18 APU Log Books 1 set/AC 19 AD Status: Records of AD status for APU, engines and 1 set/AC airframe 20 SB Status: Records of SB status for APU, engines and 1 set/AC airframe Schedule 3 Rent payable during the First Renewal Term and the Second Renewal Term Rent payable during any First Renewal Term and during any Second Renewal Term shall continue to be paid monthly in advance and shall be calculated as the lesser of (a) the fair market rent per month for the Aircraft as it may be determined pursuant to and in accordance with the following paragraph and (b) ninety per cent. (90%) of the monthly Rent paid by the Lessee during the Primary Lease Term. In this schedule 3 the expression "fair market rent" shall be determined not less than one hundred and eighty (180) days and not more than two hundred and seventy (270) days before the first day of the First Renewal Term or the Second Renewal Term (as the case may be) on the basis of, and shall mean the amount which would be obtainable in an arm's-length transaction between an informed and willing lessee (other than a lessee currently in possession of the Aircraft) under no compulsion to lease and an informed and willing lessor under no compulsion to lease, and neither of which is Lessor or Lessee or a permitted sub-lessee or a subsidiary or Affiliate of or a person related to the Lessor or the Lessee or a permitted sub-lessee, for the lease of the Aircraft, assuming that the Aircraft is unencumbered by this Lease or any renewal or purchase option and that the Aircraft is in the condition and repair required to be maintained by the terms of this Lease upon return of the Aircraft pursuant to clause 19 hereof, and such amount shall be net of leasing and transportation charges. 73 Schedule 4 Agreed Value Date Agreed Value % * ---- ---------------- 30-Dec-93 101.148% 30-Jan-94 101.091% 23-Feb-94 101.030% 30-Mar-94 100.964% 30-Apr-94 100.897% 30-May-94 100.826% 30-Jun-94 100.755% 30-Jul-94 100.679% 30-Aug-94 100.598% 30-Sep-94 100.517% 30-Oct-94 100.431% 30-Nov-94 100.340% 30-Dec-94 100.249% 30-Jan-95 100.153% 28-Feb-95 100.053% 30-Mar-95 99.947% 30-Apr-95 99.841% 30-May-95 99.730% 30-Jun-95 99.618% 30-Jul-95 99.502% 30-Aug-95 99.380% 30-Sep-95 99.258% 30-Oct-95 99.131% 30-Nov-95 98.999% 30-Dec-95 98.866% 30-Jan-96 98.729% 29-Feb-96 98.586% 30-Mar-96 98.438% 30-Apr-96 98.289% 30-May-96 98.135% 30-Jun-96 97.980% 30-Jul-96 97.820% 30-Aug-96 97.655% 30-Sep-96 97.489% 30-Oct-96 97.318% 30-Nov-96 97.141% 30-Dec-96 96.964% 30-Jan-97 96.781% 21-Feb-97 96.593% * The Agreed Value for each date set forth In this Schedule 4 shall equal the product of the Agreed Value % set forth opposite such date multiplied by $65,000,000. 74 Date Agreed Value % * ---- ---------------- 30-Mar-97 96.399% 30-Apr-97 96.204% 30-May-97 96.004% 30-Jun-97 95.803% 30-Jul-97 95.596% 30-Aug-97 95.384% 30-Sep-97 95.171% 30-Oct-97 94.952% 30-Nov-97 94.728% 30-Dec-97 94.502% 30-Jan-98 94.271% 28-Feb-98 94.034% 30-Mar-98 93.792% 30-Apr-98 93.580% 30-May-98 93.363% 30-Jun-98 93.177% 30-Jul-98 92.986% 30-Aug-98 92.789% 30-Sep-98 92.624% 30-Oct-98 92.453% 30-Nov-98 92.278% 30-Dec-98 91.231% * The Agreed Value for each date set forth in this Schedule 4 shall equal the product of the Agreed Value % set forth opposite such date multiplied by $65,000,000. 75 Schedule 5 Part 1 Permitted Air Carriers Aer Lingus Aero Mexico Air Aruba Air Canada Air Europe Italy S.P.A. Air France Air Malta Air New Zealand Air 2000 Alitalia All Nippon Airways American Airlines Ansett Australia Asiana Airlines Australia-Asia Airlines Britannia Airways British Airways British Midland Canadian Cathay Pacific Condor Flugdienst Continental Delta Air Lines Dragonair El Al Finnair Garuda Iberia Icelandair Japan Airlines Japan Air System KLM Korean Airlines LAN Chile Lauda Air LOT LTU Sud International Airways Martinair Holland Malaysian Airlines Monarch Northwest Olympic Premiair Qantas 76 Region Air Royal Brunei Airlines SABENA SAS Singapore Airlines Silk Air (affiliate of Singapore Airlines) Spanair Sun Country Swissair TAP Thai Transbrazil Translift TWA United Airlines USAir Varig 77 Schedule 5 Part 2 Permitted Countries Aruba Australia Austria Belgium Brazil Brunei Canada Chile Finland France Germany Greece Hong Kong Ireland Iceland Israel Italy Japan Malta Malaysia Mexico Netherlands New Zealand Portugal Seychelles Singapore South Korea Spain Switzerland Thailand United Kingdom United States 78 Schedule 6 Form of Letter of Quiet Enjoyment From: [Lender] (the "Lender") To: Scandinavian Airlines System (the "Lessee") [ ], 199[ ]. Dear Sirs, Lease of Boeing 767-300ER Aircraft, Manufacturer's Serial Number 24475 (the "Aircraft") dated ____ December, 1993, between CIT Leasing (Bermuda), Ltd. (the "Lessor"), the Lessee and SAS Capital BV (the "Lease") 1 For good and valuable consideration (the receipt and sufficiency of which the Lender acknowledges and confirms), the Lender confirms to you that the Lender will not interfere with the quiet possession and use of the Aircraft by the Lessee throughout the term of the Lease, so long as no Termination Event (as defined in the Lease), which has not been waived by the Lessor, has occurred and is continuing. 2 The foregoing undertaking is not to be construed as restricting the rights of the Lender (if any) to dispose of the Aircraft to such persons and on such terms as it considers appropriate. However, if the Lender exercises such rights during the term of the Lease, and provided that no Termination Event (as defined in the Lease), which has not been waived by the Lessor, has occurred and is continuing, the Lender will (subject to any requirements or restrictions imposed by applicable law) dispose of the Aircraft expressly subject to the Lease and on terms that the purchaser issues an undertaking to the Lessee that it will not interfere with the quiet possession and use of the Aircraft by the Lessee throughout the remaining term of the lease, so long as no Termination Event (as defined in the Lease), which has not been waived by the Lessor, has occurred and is continuing. 3 This letter shall be governed by, and construed in accordance with, English law. Please countersign this letter in order to confirm your agreement to its terms. -------------------------------- [Lender] 79 Agreed and accepted - -------------------------------- Scandinavian Airline Systems 80 SIGNED on behalf of ) CIT LEASING (BERMUDA), LTD. ) /s/ [Illegible] /s/ Miriam D. Starc by: ) [Illegible] Miriam D. Starc in the presence of:- ) ATTORNEY-IN-FACT ATTORNEY-IN-FACT SIGNED on behalf of ) SCANDINAVIAN AIRLINES SYSTEM ) /s/ [Illegible] /s/ John Forngre Denmark-Norway-Sweden ) [Illegible] John Forngre by: ) POWER OF ATTORNEY POWER OF ATTORNEY in the presence of:- ) SIGNED on behalf of ) SAS CAPITAL BV ) /s/ [Illegible] /s/ John Forngre by: ) [Illegible] John Forngre in the presence of:- ) POWER OF ATTORNEY POWER OF ATTORNEY 81 EX-99.B 5 EXHIBIT 99.B Copyright, published by The Baltic and International Maritime Council (BIMCO), Copenhagen, September 1989 Adopted by the Documentary Committee of The Japan Shipping Exchange, Inc., Tokyo First issued by The Baltic and International Maritime Council (BIMCO), Copenhagen in 1974 as "Barecon 'A'" and Barecon 'B'" Revised and amalgamated 1989 THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO) [LOGO] STANDARD BAREBOAT CHARTER CODE NAME: "BARECON 89" PART I - -------------------------------------------------------------------------------- 1. Shipbroker American Marine Advisors - -------------------------------------------------------------------------------- 2. Place and date 28 March 1995 - -------------------------------------------------------------------------------- 3. Owners/Place of business AFG Alouette Arrow Limited Partnership c/o American Finance Group Exchange Place Boston, MA 02109 - -------------------------------------------------------------------------------- 4. Bareboat charterers (Charterers)/Place of business Chantal Shipping Corporation 80 Broad Street Monrovia, Liberia - -------------------------------------------------------------------------------- 5. Vessels name, Call Sign and Flag (Cl. 9(c)) M/S Alouette Arrow; LALK4: NIS - -------------------------------------------------------------------------------- 6. Type of Vessel Liquid pitch/metal carrier - -------------------------------------------------------------------------------- 7. GRT/NRT 12,688 4,284 - -------------------------------------------------------------------------------- 8. When/Where built 1981, Spain - -------------------------------------------------------------------------------- 9. Total DWT (abt.) in metric tons on summer freeboard 14,232 - -------------------------------------------------------------------------------- 10. Class (Cl. 9) Germanischer Lloyd - -------------------------------------------------------------------------------- 11. Date of last special survey by the Vessel's classification society November 1991 - -------------------------------------------------------------------------------- 12. Further particulars of Vessel (also indicate minimum number of months validity of class certificates agreed acc. to Cl. 14) See Schedule 1 hereto and made a part hereof - -------------------------------------------------------------------------------- 13. Port or Place of delivery (Cl. 2) Safely afloat at a safe port in Charterer's option worldwide. - -------------------------------------------------------------------------------- 14. Time for delivery (Cl. 3) On for before 31 March 1995 - -------------------------------------------------------------------------------- 15. Cancelling date (Cl. 4) 30 April 1995 - -------------------------------------------------------------------------------- 16. Port or Place of redelivery (Cl. 14) See Clause 27 - -------------------------------------------------------------------------------- 17. Running days' notice if other than stated in Cl. 3 Not applicable - -------------------------------------------------------------------------------- 18. Frequency of dry-docking if other than stated in Cl. 9(f) Not applicable - -------------------------------------------------------------------------------- 19. Trading Limits (Cl. 5) Worldwide Trading within institute Warranty limits as determined by London Underwriters. Charterers have the option of breaking institute Warranty Limits against paying extra insurance premium on vessel. - -------------------------------------------------------------------------------- 20. Charter period See Clause 29 - -------------------------------------------------------------------------------- 21. Charter hire (Cl. 10) See Clause 32 - -------------------------------------------------------------------------------- 22. Rate of interest payable acc. to Cl. 10(f) and, if applicable, acc. to PART IV See Clause 32 - -------------------------------------------------------------------------------- 23. Currency and method of payment (Cl. 10) See Clause 32 - -------------------------------------------------------------------------------- (continued) - -------------------------------------------------------------------------------- 24. Place of payment; also state beneficiary and bank account (Cl. 10) See Clause 32 - -------------------------------------------------------------------------------- 25. Bank guarantee/bond (sum and place) (Cl. 22) (optional) Not Applicable - -------------------------------------------------------------------------------- 26. Mortgage(s), if any, (state whether Cl. 11(a) or (b) applies: if 11(b) applies state date of Deed(s) of Covenant and name of Mortgagee(s)/Place of business) (Cl. 11) See Clause 33 - -------------------------------------------------------------------------------- 27. Insurance (marine and war risks) (state value acc. to Cl. 12(f) or, if applicable, acc. to Cl. 13(k)) (also state if Cl. 13 applies) See Clause 34 - -------------------------------------------------------------------------------- 28. Additional insurance cover, if any, for Owners' account limited to (Cl. 12(b)) or, if applicable, (Cl. 13(g)) See Clause 34 - -------------------------------------------------------------------------------- 29. Additional insurance cover, if any, for Charterers' account limited to (Cl. 12(b)) or, if applicable, (Cl. 13(g)) See Clause 34 - -------------------------------------------------------------------------------- 30. Latent defects (only to be filled in if period other than stated in Cl. 2) Not applicable - -------------------------------------------------------------------------------- 31. War cancellation (indicate countries agreed) (Cl. 24) Not applicable - -------------------------------------------------------------------------------- 32. Brokerage commission and to whom payable (Cl. 25) Not applicable - -------------------------------------------------------------------------------- 33. Law and arbitration (state 26.1., 26.2., or 26.3. of Cl. 26 as agreed, if 26.3. agreed, also state place of arbitration) (Cl. 26) Not applicable - -------------------------------------------------------------------------------- 34. Number of additional clauses covering special provisions, if agreed 22 (27-48) - -------------------------------------------------------------------------------- PREAMBLE - It is mutually agreed that this Contract shall be performed subject to the conditions contained in this Charter which shall include PART I and PART II. In the event of a conflict of conditions, the provisions of PART I shall prevail over those of PART II to the extent of such conflict but no further. It is further mutually agreed that PART III and/or PART IV and/or PART V shall only apply and shall only form part of this Charter if expressly agreed and stated in the Boxes 35, 39 and 40. If PART III and/or PART IV and/or PART V apply, it is further mutually agreed that in the event of a conflict of conditions, the provisions of PART I and PART II shall prevail over those of PART III and/or PART IV and/or PART V to the extent of such conflict but no further. Signature (Owners) AFG Alouette Arrow Limited Partnership By: AFG ASIT Corporation, General Partner By: /s/ [ILLEGIBLE] ------------------------ Title: Vice President --------------------- Signature (Charterers) Chantal Shipping Corporation By: /s/ [ILLEGIBLE] ------------------------ Title: Attorney-in-Fact --------------------- PART II "BARECON 89" Standard Bareboat Charter 1. Definitions In this Charter the following terms shall have the meanings hereby assigned to them: "The Owners" shall mean the person or company registered as Owners of the Vessel. "The Charterers" shall mean the Bareboat charterers and shall not be construed to mean a time charterer or a voyage charterer. 2. Delivery (not applicable to newbuilding vessels) The delivery to the Charterers of the Vessel and the taking over of the Vessel by the Charterers shall be simultaneous with the delivery of the Vessel to the Owners under the Memorandum of Agreement between Charterers and American Finance Group dated December 30, 1994 and shall constitute a full performance by the Owners of all the Owners' obligations under Clause 2, and thereafter the Charterers shall not be entitled to make or assert any claim against the Owners on account of any conditions, representations or warranties expressed or implied with respect to the Vessel but the Owners shall be responsible for repairs or renewals occasioned by latent defects in the Vessel, her machinery or appurtenances, existing at the time of delivery under the Charter, provided such detects have manifested themselves within 18 months after delivery unless otherwise provided in Box 30. 3. Time for Delivery (not applicable to newbuilding vessels) 4. Cancelling (not applicable to newbuilding vessels) Should the Vessel not be delivered latest by the cancelling date indicated in Box 15, the Charterers to have the option of cancelling this Charter. 5. Trading Limits The Vessel shall be employed in lawful trades for the carriage of suitable lawful merchandise within the trading limits indicated in Box 19. The Charterers undertake not to employ the Vessel or suffer the Vessel to be employed otherwise than in conformity with the terms of the instruments of insurance (including any warranties expressed or implied therein) without first obtaining the consent to such employment of the Insurers and complying with such requirements as to extra premium or otherwise as the Insurers may prescribe. If required, the Charterers shall keep the Owners and the Mortgagees advised of the intended employment of the Vessel. The Charterers also undertake not to employ the Vessel or suffer her employment in any trade or business which is forbidden by the law of any country to which the Vessel may sail or is otherwise illicit or in carrying illicit or prohibited goods or in any manner whatsoever which may render her liable to condemnation, destruction, seizure or confiscation. Notwithstanding any other provisions contained in this Charter it is agreed that nuclear fuels or radioactive products or waste are specifically excluded from the cargo permitted to be loaded or carried under this Charter. This exclusion does not apply to radio-isotopes used or intended to be used for any industrial, commercial, agricultural, medical or scientific purposes provided the Owners' prior approval has been obtained to loading thereof. 6. Surveys (not applicable to newbuilding vessels) Survey on Delivery and Redelivery. - The Owners end Charterers shall each appoint surveyors for the purpose of determining and agreeing in writing the condition of the Vessel at the time of delivery and redelivery hereunder. The Owners shall bear all expenses of the On-Survey including loss of time, if any, and the Charterers shall bear all expenses of the Off-Survey including loss of time, if any, at the rate of hire per day or pro rata, also including in each case the cost of any docking and undocking, if required, in connection herewith. 7. Inspection Inspection. -- The Owners shall have the right at any time to inspect or survey the Vessel or instruct a duly authorised surveyor to carry out such survey on their behalf to ascertain the condition of the Vessel and satisfy themselves that the Vessel is being properly repaired and maintained. Inspection or survey in dry-dock shall be made only when the Vessel shall be in dry-dock for the Charterers' purpose and such inspection or survey shall not interfere with normal operations of the Vessel. However, the Owners shall have the right to require the vessel to be dry-docked for inspection if the Charterers are not docking her at normal classification intervals, such intervals to include classification approved extensions. The fees for such inspection or survey shall in the event of the Vessel being found to be in the condition provided in Clause 9 of this Charter be payable by the Owners and shall be paid by the Charterers only in the event of the Vessel being found to require repairs or maintenance in order to achieve the condition so provided. All time taken in respect of inspection, survey or repairs shall count as time on hire and shall form part of the Charter period. The Charterers shall also permit the Owners to inspect the Vessel's log books whenever requested and shall whenever required by the Owners furnish them with full information regarding any casualties or other accidents or damage to the Vessel. For the purpose of this Clause, the Charterers shall keep the Owners advised of the intended employment of the Vessel. 8. Inventories and Consumable Oil and Stores A complete inventory of the Vessel's entire equipment, outfit, appliances and of all consumable stores on board the Vessel shall be made by the Charterers in conjunction with the Owners on delivery and again on redelivery of the Vessel. The Charterers and the Owners, respectively, shall at the time of delivery and redelivery take over and pay for all bunkers, lubricating oil, water and unbroached provisions, paints, oils, ropes and other consumable stores in the said Vessel at the Net Contract Price. Reference is also made to the MOA dated December 30, 1994 between Chantal Shipping Corporation and American Finance Group. Consumables, including bunkers belonging to or provided by Charterers on delivery shall remain on its property. 9. Maintenance and Operation (a) The Vessel shall during the Charter period be in the full possession and at the absolute disposal for all purposes of the Charterers and under their complete control in every respect. The Charterers shall maintain the Vessel, her machinery, boilers, appurtenances and spare parts in a good state of repair, in efficient operating condition and in accordance with good commercial maintenance practice and, except as provided for in Clause 13 (i), they shall keep the Vessel with unexpired classification of the class indicated in Box 10 and with other required certificates in force at all times. The Charterers to take immediate steps to have the necessary repairs done within a reasonable time failing which the Owners shall have the right of withdrawing the Vessel from the service of the Charterers without noting any protest and without prejudice to any claim the Owners may otherwise have against the Charterers under the Charter. The Charterers are required to establish and maintain financial security or responsibility in respect of oil or other pollution damage as required by any government, including Federal, state or municipal or other division or authority thereof, to enable the Vessel, without penalty or charge, lawfully to enter, remain at, or leave any port, place, territorial or contiguous waters of any country, state or municipality in performance of this Charter without any delay. This obligation shall apply whether or not such requirements have been lawfully imposed by such government or division or authority thereof. The Charterers shall make and maintain all arrangements by bond or otherwise as may be necessary to satisfy such requirements at the Charterers sole expense and the Charterers shall indemnify the Owners against all consequences whatsoever (including loss of time) for any failure or inability to do so. (b) The Charterers shall at their own expense and by their own procurement man, victual, navigate, operate, supply, fuel and repair the Vessel whenever required during the Charter period and they shall pay all charges and expenses of every kind and nature whatsoever incidental to their use and operation of the Vessel under this Charter, including any foreign general municipality and/or state taxes. The Master, officers and crew of the Vessel shall be the servants of the Charterers for all purposes whatsoever, even if for any reason appointed by the Owners. Charterers shall comply with the regulations regarding officers and crew in force in the country of the Vessels flag or any other applicable law. (c) During the currency of this Charter, the Vessel shall retain her present name as indicated in Box 5 and shall remain under and fly the flag as indicated in Box 5. Provided, however, that the Charterers shall have the liberty to paint the Vessel in their own colours, install and display their funnel insignia and fly their own house flag. Painting and re-painting, instalment and re-instalment to be for the Charterers' account and time used thereby to count as time on hire. (d) See Clause 39 (e) The Charterers shall have the use of all outfit, equipment, and appliances on board the Vessel at the time of delivery, provided the same or their substantial equivalent shall be returned to the Owners on redelivery in the same good order and condition as when received, ordinary wear and tear excepted. The Charterers shall from time to time during the Charter period replace such items of equipment as shall be so damaged or worn as to be unfit for use. The Charterers are to procure that all repairs to or replacement of any damaged, worn or lost parts or equipment be effected in such manner (both as regards workmanship and quality of materials) as not to diminish the value of the Vessel. The Charterers have the right to fit additional equipment at their expense and risk but the Charterers shall remove such equipment at the end of the period if requested by the Owners. Any equipment including radio equipment on hire on the Vessel at time of delivery shall be kept and maintained by the Charterers and the Charterers shall assume the obligations and liabilities of the Owners under any lease contracts in connection therewith and shall reimburse the Owners for all expenses incurred in connection therewith, also for any new equipment required in order to comply with radio regulations. (f) The Charterers shall dry-dock the Vessel and clean and paint her underwater parts whenever the same may be necessary, in accordance with Charterers normal practice. 10. Hire PART II "BARECON 89" Standard Bareboat Charter 11. Mortgage (c) The Owners warrant that they have not effected any mortgage(s) other than stated in Box 26 and that they will not effect any other mortgage(s) without the prior consent of the Charterers. See Clause 33 *) (Optional, Clauses 11 (a) and 11(b) are alternatives; indicate alternative agreed in Box 26). 12. Insurance and Repairs See Clause 34 13. Insurance, Repairs and Classification 14. Redelivery -- See Clause 27 15. Non-Lien and Indemnity The Charterers will not suffer, nor permit to be continued, any lien or encumbrance incurred by them or their agents, which might have priority over the title and interest of the Owners in the Vessel. The Charterers further agree to fasten to the Vessel in a conspicuous place and to keep so fastened during the Charter period a notice reading as follows:- See Clause 43 The Charterers shall indemnify and hold the Owners harmless against any lien of whatsoever nature arising upon the Vessel during the Charter period while she is under the control of the Charterers, and against any claims against the Owners arising out of or in relation to the operation of the Vessel by the Charterers. Should the Vessel be arrested by reason of claims or liens arising out of her operation hereunder by the Charterers, the Charterers shall at their own expense take all reasonable steps to secure that within a reasonable time the Vessel is released and at their own expense put up bail to secure release of the Vessel. 16. Lien 17. Salvage All salvage and towage performed by the Vessel shall be for the Charterers' benefit and the cost of repairing damage occasioned thereby shall be borne by the Charterers. PART II "BARECON 89" Standard Bareboat Charter 18. Wreck Removal In the event of the Vessel becoming a wreck or obstruction to navigation the Charterers shall indemnify the Owners against any sums whatsoever which the Owners shall become liable to pay and shall pay in consequence of the Vessel becoming a wreck or obstruction to navigation. 19. General Average General Average, if any, shall be adjusted according to the York-Antwerp Rules 1974 or any subsequent modification thereof current at the time of the casualty. The Charter Hire not to contribute to General Average. 20. Assignment and Sub-Demise See Clause 28 21. Bills of Lading The Charterers are to procure that all Bills of Lading issued for carriage of goods under this Charter shall contain a Paramount Clause incorporating any legislation relating to Carrier's liability for cargo compulsorily applicable in the trade; if no such legislation exists, the Bills of Lading shall incorporate the British Carriage of Goods by Sea Act. The Bills of Lading shall also contain the amended New Jason Clause and the Both-to-Blame Collision Clause. The Charterers agree to indemnify the Owners against all consequences or liabilities arising from the Master, officers or agents signing Bills of Lading or other documents. 22. Bank Guarantee 23. Requisition/Acquisition (a) In the event of the Requisition for Hire of the Vessel by any governmental or other competent authority (hereinafter referred to as "Requisition for Hire") irrespective of the date during the Charter period when "Requisition for Hire" may occur and irrespective of the length thereof and whether or not it be for an indefinite or a limited period of time, and irrespective of whether it may or will remain in force for the remainder of the Charter period, this Charter shall not be deemed thereby or thereupon to be frustrated or otherwise terminated and the Charterers shall continue to pay the stipulated hire in the manner provided by this Charter until the time when the Charter would have terminated pursuant to any of the provisions hereof always provided however that in the event of "Requisition for Hire" any Requisition Hire or compensation received or receivable by the Owners shall be payable to the Charterers during the remainder of the Charter period or the period of the "Requisition for Hire" whichever be the shorter. The Hire under this Charter shall be payable to the Owners from the same time as the Requisition Hire is payable to the Charterers. 24. War (a) Unless confirmation of relevant insurers are valid and effective for such purpose and shall have been first obtained the Vessel shall not be ordered nor continue to any place or on any voyage nor be used on any service which will bring her within a zone which is dangerous as the result of any actual or threatened act of war, war, hostilities, warlike operations, acts of piracy or of hostility or malicious damage against this or any other vessel or its cargo by any person, body or State whatsoever, revolution, civil war, civil commotion or the operation of international law, nor be exposed in any way to any risks or penalties whatsoever consequent upon the imposition of Sanctions, nor carry any goods that may in any way expose her to any risks of seizure, capture, penalties or any other interference of any kind whatsoever by the belligerent or fighting powers or parties or by any Government or Ruler. (b) The Vessel to have liberty to comply with any orders or directions as to departure, arrival, routes, ports of call, stoppages, destination, delivery or in any other wise whatsoever given by the Government of the nation under whose flag the Vessel sails or any other Government or any person (or body) acting or purporting to act with the authority of such Government or by any committee or person having under the terms of the war risks insurance on the Vessel the right to give any such orders or directions. 25. Commission 26. Law and Arbitration See Clause 37 "BARECON 89" Standard Bareboat Charter OPTIONAL PART PART III PROVISIONS TO APPLY FOR NEWBUILDING VESSELS ONLY (Optional, only to apply if expressly agreed and stated in Box 35) ADDITIONAL CLAUSES FOR CHARTER BETWEEN AFG ALOUETTE ARROW LIMITED PARTNERSHIP and Chantal Shipping Corporation 27. RE-DELIVERY. (a) The Charterers shall, upon giving written notification of their intent to return the Vessel at the expiration of the Charter Period (as hereinafter defined) as set forth in Clause 35, arrange for the re-delivery of the Vessel safely afloat to a berth or at anchorage at a safe and ice-free port designated by Owners (the "Specified Port"). The Charterers shall give the Owners not less than 30 days preliminary and not less than 14 days definite notice of expected date of re-delivery. Should Vessel be ordered on a voyage by which the Charter Period may be exceeded the Charterers shall have the use of the Vessel to enable Charterers to complete the voyage, provided it could be reasonably calculated that the voyage would allow re-delivery on the approximate date fixed for the termination of the Charter Period. The Vessel shall be re-delivered to the Owners in the same condition and class as that in which she was delivered, fair wear and tear relative to the age of the Vessel not affecting class excepted. The Vessel upon re-delivery shall have her survey cycles up to date and class certificates valid for at least three months, unless Owners, in their sole discretion, notify Charterers of their intention to scrap the Vessel at the expiration of the Charter Period or any extension thereof. In only this event, the Vessel shall be required to have the survey cycles and class certificates required for delivery of the Vessel for scrap at the port designated by Owners. (b) Charterers shall use best efforts to ensure that the voyage immediately prior to the re-delivery of the Vessel pursuant to this Clause 27 will terminate at or in close proximity to the Specified Port. If the voyage immediately prior to the Vessel's re-delivery does not terminate at the Specified Port, Charterers shall arrange for re-delivery of the Vessel to the Specified Port at Owners' sole expense. Charterers shall use best efforts to minimize Owners' expense for this voyage, including but not limited to arranging for the Vessel to deliver a cargo to the Specified Port, payment for which will be for the account of Owners. Owners shall pay all costs and expenses approved in advance by Owners incurred in connection with re-delivery of the Vessel. 28. ASSIGNMENT AND SUB-DEMISE. (a) The Charterers shall not assign this Charter nor sub-bareboat the Vessel except with the prior consent in writing of the Owners which shall not be unreasonably withheld and subject to such terms and conditions as the Owners shall approve. The Charterers may sub-charter the Vessel without the consent of the Owners. (b) During the Charter Period, the Owners may sell the Vessel or assign this Charter with the prior written consent of the Charterers, such consent not to be unreasonably withheld or delayed. In the event of a sale of the Vessel or assignment of the Charter, this Charter shall remain in full force and effect. Except as otherwise expressly stated herein, Owners shall retain their obligations under the Charter, and any purchaser or assignee shall acknowledge in writing Charterers' right to quiet enjoyment under the Charter. Owners shall (i) notify Charterers in writing of their intention to sell the Vessel and (ii) immediately notify Charterers if Owners are in firm negotiations with a potential purchaser. Notwithstanding anything in this Clause 28 to the contrary, Owners shall not sell the Vessel (x) to any direct shipping industry competitor of Charterers, or (y) to an entity which is a major shareholder of or which has direct influence upon a direct competitor of Charterers, or (z) to an entity which, according to Owners' normal credit evaluation, is not financially qualified. 29. DEMISE: CHARTER PERIOD AND DELIVERY OF VESSEL. Upon the terms and conditions of the Charter, and subject to termination as provided herein, the Owners hereby let and demise to the Charterers and the Charterers hereby hire the Vessel for a charter period (the "Charter Period") consisting of (i) an interim Charter Period ("Interim Charter Period") commencing December 30, 1994 and ending on March 31, 1995; (ii) a primary Charter Period ("Primary Charter Period") commencing on April 1, 1995 and expiring at the later to occur of midnight, London Time, on December 31, 2000 or 365 days following Owners receipt of whichever of the two notices referred to in Clause 35.1(i) and Clause 35.1(ii) is sent by Charterers and; (iii) any extensions of this Charter pursuant to the provisions of Clause 35. For any partial months forming a part of the Charter Period a daily Charter-hire rate which shall equal the monthly Charter-hire specified in Clause 32 below or Clause 35 below, as the case may be, divided by 30 shall be applicable or prorata for periods of less than a day. The Charter Period shall be extended for the duration of any voyage in progress at the time the Charter Period would otherwise expire and such extension shall remain in effect for such additional period as shall be required to effect redelivery, but in no event shall such additional period exceed a period of 60 days. 30. ACCEPTANCE AND WARRANTIES. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS CHARTER, THE OWNERS MAKE NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE TITLE, SEAWORTHINESS, CONDITION, DESIGN, OPERATION, MERCHANTABILITY OR FITNESS FOR USE OR FITNESS FOR A PARTICULAR PURPOSE OF THE VESSEL OR AS TO THE ELIGIBILITY OF THE VESSEL FOR ANY PARTICULAR TRADE OR ANY OTHER -2- REPRESENTATION OR WARRANTY WITH RESPECT TO THE VESSEL AND NONE SHALL BE IMPLIED FROM THIS CHARTER. 31. SURVEY AND CLASSIFICATION. The Charterers shall from time to time if reasonably requested to do so by the Owners furnish to the Owners (a) copies of the Certificate of Confirmation of Class issued by the relevant classification society showing the above-mentioned classification and rating have been retained and (b) copies of all classification society reports on annual, other periodic and damage surveys. 32. CHARTER HIRE. Without notice or demand, the Charterers shall pay to the Owners a net charter-hire ("Charter-hire") for its use of the Vessel and its other rights hereunder; Charter-hire for each month during the Interim Charter Period and the Primary Charter Period shall be the sum of USD192,551, payable at such address as the Owners may from time to time designate. Charterers shall pay Charter-hire by bank wire transfer on the last day of each calendar month during the Charter Period in immediately available funds of USD without discount. If the last day of a calendar month during the Charter Period is not a banking day as defined in Clause 45 hereof, Charter-hire shall be payable on the immediately preceding banking day. For any period of the Charter Period of less than one month, Charter-hire is payable for each day at the daily Charter-hire rate calculated in accordance with Clause 29 hereof. If any payment of Charter-hire is not received on the date or before the date on which that payment is first due, the Charterers shall also pay to the Owners, immediately on demand, interest on the amount of the late payment at an annual rate equal to the rate of interest charged by the Mortgagee (as hereinafter defined) to the Owners in respect of that late payment, or 3 months LIBOR plus 3% if no Mortgage (as hereinafter defined) on the Vessel exists at the time of such late payment. The duty of the Charterers to make all payments of Charter-hire and all other sums payable by the Charterers hereunder shall be absolute and unconditional, and no such payment shall be subject to any right of set off, counterclaim, defense, abatement, suspension, deferment, diminution, reduction or other right or cause which the Charterers may have against the Owners or any other person for any reason whatever; and the Charterers shall have no right to terminate the Charter and to be relieved of its obligation to pay Charter-hire (except as expressly provided in the Charter) or to be released, relieved or discharged from any other duty or liability under the Charter for any reason whatsoever, including, without limitation: (i) any damage to, or loss, requisition, seizure, forfeiture or marshal's or other sale of the Vessel; (ii) any libel, attachment, levy, detention, sequestration, or taking into custody, or any restriction or prevention of, or interference with, the use of the Vessel unless caused by the Owners or its agents; (iii) any defect in title, seaworthiness, condition, design, operation or fitness for the -3- use of the Vessel or encumbrance or any dispossession from the Vessel by the title paramount or otherwise; (iv) any act, omission or breach in the part of the Owners under this Charter or any other agreement existing between the Owners and the Charterers; (v) any bankruptcy, insolvency, dissolution, liquidation, composition, or similar proceeding relating to the Owners, or any action taken with respect to this Charter, other than rejection, disclaimer or any failure to confirm adoption or being bound, by any trustee or receiver of the Owners, or by any court in any such proceeding; (vi) any change, extension, indulgence or other act or omission in respect of any indebtedness or duty of the Owners, or any sale, exchange, release, or surrender of, or other dealing in, any security for any such indebtedness or duty; and (vii) any ineligibility of the Vessel, or denial of the Vessel's right, to engage in any trade or by reason or any law or regulation of the United States or Liberia or otherwise, or any failure to obtain any required governmental consent for any transfer of rights of title by Owners to the Charterers pursuant to any provisions hereof and thereof. Any payment required to be made by the Charterers under this Clause shall be made without prejudice to, and shall not be construed as a waiver of, any rights or causes of action which the Charterers may have against the Owners or any other person. Even though during the Charter Period the Charterers shall be deprived of, or limited in, the use of the Vessel in any respect or for any length of time, whether or not by reason of any act or omission of the Owners or otherwise, the Charterers, except as provided by the exclusions from the foregoing clauses (ii) and (v), shall, without prejudice to any claim against the Owners or any other person by reason of the Owners' or any other person's wrongful act or omission, continue to make all payments required of the Charterers by the terms of this Charter without interruption or abatement, unless and until this Charter shall have terminated in accordance with the express provisions hereof. The total amount of any damages or the costs and expenses of enforcement of any other claim referred to in the immediately preceding sentence shall constitute a debt of the Owners owing to the Charterers payable on demand. Except as expressly provided herein, the Charterers waive, and covenant not to assert, all rights now or hereafter conferred by statute or otherwise to terminate or surrender the Charter or any abatement, suspension, deferment, diminution or reduction of Charter-hire or any other sums payable by the Charterers hereunder. 33. MORTGAGES. The Owners shall have the right to collaterally assign and grant a security interest in the Vessel and this Charter to secure a loan or loans from one or more lenders (each a "Mortgagee") pursuant to security agreements (each a "Mortgage") executed in favor of such Mortgagee. The Charterers have the right to approve the terms of any Mortgage, which approval shall not be unreasonably withheld or delayed. The Owners shall provide to the Charterers a true copy of any -4- such Mortgage. Charterers agree to create and affix such notices concerning Owners' ownership of the Vessel, this Charter and any Mortgage as Owners or Mortgagee may reasonably request. The Charterers agree that it will not take any action under this Charter or otherwise which would violate, or cause the Owners to violate, any provisions of the approved Mortgage. 34. INSURANCE. 34.1 HULL INSURANCE. The Charterers will at their own expense, at all times during the Charter Period, insure the Vessel and keep her insured, in lawful money of the United States, for no less than 100% of the Stipulated loss Value (as defined in Clause 42 hereof). Such insurance shall cover marine risk perils on hull and machinery and war risk perils on hull and machinery, including protection and indemnity, and the policy or policies of insurance shall be issued by responsible underwriters approved by the Owners, shall be maintained in the broadest forms available in either the American, British, Norwegian or Japanese markets, or with the approval of the Owners, other foreign markets, shall otherwise contain conditions, terms stipulations, and insuring covenants satisfactory to the Owners. 34.2 PROTECTION AND INDEMNITY INSURANCE. The Charterers shall maintain protection and indemnity insurance by entering the Vessel, for its full tonnage, in a Protection and Indemnity Association which is a member of the International Group of P&I Clubs on terms and conditions customary for a Vessel of its size, age and type, covering all customary rights including pollution liability risks but in no event shall the amount of such insurance be less than the maximum amount of P&I cover available from time to time under the basic entry of the Vessel in the P&I club. 34.3 OTHER INSURANCE. (a) While the Vessel is laid up, the Charterers may, in lieu of some or all of the above-mentioned insurance, provide and maintain port risk insurance in the amount and upon the other terms and conditions specified in the preceding subsections of this Clause 34. (b) The Charterers shall also maintain, at its expense, for the benefit of the Mortgagee, the Owners and the Charterers, additional insurance (other than mortgagee interest and additional perils insurance) in such amounts and against such risks arising from or connected with the ownership or operation of the Vessel as from time to time may commonly be insured against or may reasonably be required by the Mortgagee or the Owners. The Charterers shall also maintain at its expense such other insurance as may at the time be required by applicable law. -5- 34.4 MARINE INSURANCE REPORT. If requested to do so by the Owners the Charterers will furnish or cause to be furnished to the Owners and the Mortgagee on the date of delivery of the Vessel under the Charter and thereafter at intervals of not more than 12 months, a report signed by a firm of independent marine insurance brokers appointed by the Charterers and reasonably satisfactory to the Mortgagee and the Owners, who may be the marine insurance brokers regularly employed by the Charterers, showing the insurance then carried and maintained on the Vessel, responding to such inquiries concerning relevant insurance matters as the Mortgagee and the Owners may request, and stating the opinion of said insurance brokers that such insurance is adequate and reasonable for the protection of the interests of the Mortgagee and the Owners and is in compliance with the terms hereof. The Owners shall reimburse the Charterers for the out-of-pocket expenses properly incurred by the Charterers in obtaining that report. At the Charterers' expense, the Charterers will obtain a letter of understanding from such firm of independent marine insurance brokers containing an undertaking to advise the Mortgagee, and the Owners promptly of any default in the payment of any premium on any insurance required to be carried and maintained by this Clause 34, and of any other act or omission on the part of the Charterers or the Owners of which it has knowledge and which might invalidate or render unenforceable, in whole or in part, any insurance on the Vessel. 34.5 POLICY PROVISIONS. All policies, binders and other insurance contracts in respect of insurance required under this Clause 34 shall: (i) name the Mortgagee (if any), the Charterers and the Owners as assureds, and provide that neither the Mortgagee, nor the Owners shall be liable under such policies for payment at any premium, club call, assessment or advance; (ii) provide that unless otherwise consented to in writing by the Mortgagee, and the Owners, losses are payable to the Mortgagee, and the Owners for distribution to it and any other named assured, as their interests may appear PROVIDED THAT so long as the underwriters have not been advised that an Event of Default has occurred and remains unremedied, in the case of any loss involving damage to the Vessel the underwriters may pay directly to the Charterers up to and including a maximum amount of USD500,000 creditable against repair costs and charges relating to such loss all without the prior consent of the Mortgagee or the Owners; and (iii) provide for at least 10 days' prior written notice to be given to the Owners and Mortgagee by the underwriters, insurance company or fund, as the case may be in the event of actual or prepaid cancellation or reduction of coverage. The Charterers will deliver to the Mortgagee and the Owners true and correct copies of all cover notes, policies, binders and certificates of entry in protection and indemnity associations, and all endorsements and riders amendatory thereof, evidencing insurance required to be carried and maintained by this Clause 34. -6- 34.6 APPLICATION OF PROCEEDS TO STIPULATED LOSS VALUE. Upon the occurrence of an event under Clauses 36 or 41 requiring the payment to the Owners of the Stipulated Loss Value of the Vessel, the insurance proceeds payable under policies required hereby as result of such occurrence shall be paid to the Mortgagee and applied, first to pay all monies due, if any, under the Mortgage but not exceeding the Stipulated Loss Value and, secondly, to an account to be established in the joint names of the Owners and the Charterers. If no Mortgage shall exist at the time of any such payment, all insurance proceeds shall be payable into the joint account referred to in the preceding sentence. If the Stipulated Loss Value payment has not already been made by the Charterers hereunder then the Owners shall credit the sum of the Mortgage debt in reduction of the Charterers' obligation to make such payment and, in addition, Owners shall be entitled to withdraw from the joint account an amount up to the balance of the Stipulated Loss Value together with all sums then due and owing by Charterers under the Charter. The Charterers hereby irrevocably agree to such withdrawal. The balance, if any, of monies in the joint account remaining thereafter will, be held to the order of the Charterers. In the event that the Charterers shall pay the Stipulated Loss Value to the Owners prior to the time at which the insurance proceeds are paid to the Mortgagee then the Owners shall contemporaneously with the making of that payment by the Charterers pay all monies due, if any, to the Mortgagee and assign to the Charterers all rights which the Owners may have in and to any proceeds of the insurance. Accordingly in such event all monies in the joint account shall be held to the order of the Charterers. 34.7 PROOF OF LOSS. The Charterers will, at their own expense, make or cause to be made all proofs of loss and take, or cause to be taken, all other action necessary or appropriate to make collections from the underwriters of insurance required to be carried and maintained by this Clause 34. To that end, the Owners at the Charterers' expense, will execute such claim papers and other documents, take such action and furnish such information as the Charterers may reasonably request, including tendering abandonment of the Vessel to the underwriters. 34.8 NO ACT IMPAIRING INSURANCE. The Charterers will not do any act, nor suffer any act to be done, whereby any insurance required hereunder shall or may be suspended, impaired or defeated, and will not suffer the Vessel to carry any cargo not permitted, or to be operated in any geographical area where it would not be covered, under the insurance policies in effect without first covering the Vessel with insurance complying with provisions of this Clause 34. The Charterers will advise the Mortgagee and the Owners in writing promptly of any default in the payment of any premium and of any other act or omission on the part of the Charterers of which they have knowledge and which might invalidate or render unenforceable, in whole or on part, -7- any insurance on the Vessel. In the event that the Charterers shall fail to maintain insurance as herein provided, the Owners may at their option provide such insurance and, in such event, the Charterers shall, upon demand, reimburse the Owners for the cost thereof. 34.9 ASSIGNMENT OF INSURANCE. By way of security for all obligations of the Charterers to the Owners (whether present or future, actual or contingent) under this Charter the Charterers as beneficial owners hereby assign absolutely and agree to assign absolutely to and in favour of the Owners all their rights, title and interest, present and future to and in all insurances in respect of the Vessel (including claims of whatsoever nature and return of premiums). Such assignment shall be on terms that payments shall be made in accordance with Clause 34.5. The Charterers shall execute a Notice of Assignment and Loss Payable Clause reflecting the foregoing and shall procure that the same shall be notified to brokers and underwriters in accordance with market practice. The Charterers acknowledge that the rights so assigned to the Owners shall be capable of further assignment by the Owners to the Mortgagee. The Charterers shall procure that the insurers shall issue in favour of the Mortgagee such letters of undertaking in respect of the insurances as shall be consistent with market practice. 35. EXTENSIONS OF TERM; CHARTER CANCELLATIONS; PURCHASE; SALE; REDELIVERY. 35.1 EXPIRATION OF PRIMARY CHARTER PERIOD. If no Event of Default hereunder has occurred and is continuing, Charterers shall have the following options at the expiration of the Primary Charter Period: (i) upon not less than 365 days prior written notice to Owners, return the Vessel to Owners pursuant to Clause 27 hereof subject, however, to Owners' rights set forth in this Clause 35.1 below; or (ii) upon not less than 365 days prior written notice to Owners, extend the Charter Period for a first extended Charter Period of 21 calendar months duration ("First ECP") at a monthly Charter-hire payable on the first day of each month during the First ECP equal to the Charter-hire payable during the Primary Charter Period as set forth in Clause 32. In the event Charterers fail to give either of the two notices referred to in the preceding sentence on or prior to 365 days before the expiration of the Primary Charter Period, Charterers shall be deemed to have given the notice referred to in Clause 35.1(ii). The First ECP shall commence immediately upon the expiration of the Primary Charter Period and shall expire on the latest to occur of (x) 21 calendar months after the expiration of the Primary Charter Period (y) 270 days after receipt by Owners of Charterers' written notice to return the Vessel in accordance with the terms of Clause 27 hereof or (z) 270 days after receipt by Owners of Charterers' written notice to extend the Charter Period for a Second ECP as hereinafter defined. Notwithstanding -8- the foregoing, in the event Charterers give the notice referred to in Clause 35.1(i) above, Owners, by written notice to Charterers given on or before the later of 90 days following their receipt of such notice or 270 days prior to the expiration of the Primary Term, may require that the Charter Period shall be extended for the First ECP. 35.2 EXPIRATION OF FIRST ECP. If no Event of Default hereunder has occurred and is continuing, Charterers shall have the following options at the expiration of the First ECP: (i) upon not less than 270 days prior written notice to Owners return the Vessel to Owners pursuant to Clause 27 hereof; or (ii) upon not less than 270 days prior written notice to Owners, extend the Charter for a second extended Charter Period of nine calendar months duration ("Second ECP") at a monthly Charter-hire payable on the first day of each month during the Second ECP equal to the Charter-hire payable during the Primary Charter Period as set forth in Clause 32. The Second ECP shall commence immediately upon the expiration of the First ECP and shall expire at 12:00 P.M. London Time on the latest to occur of (x) nine calendar months after the expiration of the First ECP (y) 270 days after receipt by Owners of Charterers' written notice to return the Vessel in accordance with the terms of Clause 27 hereof or (z) 270 days after receipt by Owners of Charterers' written notice to extend the Charter Period for a Third ECP as hereinafter defined. 35.3 EXPIRATION OF SECOND ECP. If no Event of Default hereunder has occurred and is continuing, Charterers shall have the following options at the expiration of the Second ECP: (i) upon not less than 270 days prior written notice to Owners, return the Vessel to Owners pursuant to Clause 27 hereof; or (ii) upon not less than 270 days prior written notice to Owners extend the Charter Period for a third extended Charter Period of 18 calendar months duration ("Third ECP") commencing immediately upon the expiration of the Second ECP and ending at 12:00 p.m. London Time on the latest to occur of (x) 18 calendar months after the end of the Second ECP, (y) 270 days after receipt by Owners of Charterers' written notice to return the Vessel in accordance with the terms of Clause 27 hereof or (z) 270 days following the receipt by Owners of Charterers' written notice of its election to extend the Charter Period for a Fourth ECP as hereinafter defined. Charter-hire during any such Third ECP shall be payable on the first day of each month during such Third ECP in the amount of USD135,238. If Charterers elect to extend the Charter for a Third ECP pursuant to this clause 35.3, Owners shall have the option upon written notice given within ninety days after Owners' receipt of Charterers' notice referred to in Clause 35.3(ii) to require Charterers to purchase the Vessel on the final day of the Second ECP at a purchase price equal to the greater of USD2,000,000 or its then FMV (as hereinafter defined), as agreed to by Owners and Charterers or in the absence of such -9- agreement as determined pursuant to the provisions of Clause 35.6. Charterers shall pay Owners the purchase price of the Vessel in immediately available funds on the final day of the Second ECP. Upon Owners receipt of the purchase price and all other sums due pursuant to this Charter, if any, Owners shall convey title of the Vessel to Charterers pursuant to the provisions of Clause 42.4. 35.4 EXPIRATION OF THE THIRD ECP. If no Event of Default hereunder has occurred and is continuing, and provided Owners have not exercised their rights set forth above in Section 35.3, Charterers shall have the following options at the expiration of the Third ECP: (i) upon not less than 270 days prior written notice to Owners, return the Vessel to Owners pursuant to the provisions of Clause 27 hereof or (ii) upon not less than 270 days prior written notice to Owners extend the Charter Period for a fourth extended Charter Period of 18 calendar months duration ("Fourth ECP") commencing immediately upon the expiration of the Third ECP and ending 12:00 p.m. London Time on the latest to occur of (x) 18 calendar months after the end of the Third ECP, (y) 270 days following the receipt by Owners of Charterers' written notice to return the Vessel at the end of the Fourth ECP in accordance with the terms of Clause 27 hereof or (z) the effective date of exercise of one of Charterers' options set forth in Clause 35.5. Charter-hire shall be payable on the first day of each month during such Fourth ECP in the amount of USD135,238. If Charterers elect to extend the Charter for a Fourth ECP pursuant to this Clause 35.4, Owners shall have the option upon written notice given within 90 days after Owners' receipt of Charterers' notice referred to in Clause 35.4(ii) to require Charterers to purchase the Vessel at the expiration of the Third ECP for a purchase price equal to the greater of USD1,000,000 or its then FMV as determined pursuant to the procedures set forth in Section 35.3. Charterers shall pay to Owners in immediately available funds the purchase price of the Vessel on the final day of the Third ECP. Upon Owners receipt of the purchase price of the Vessel and all other sums due pursuant to this Charter, if any, Owners shall convey title of the Vessel to Charterers pursuant to the provisions of Clause 42.4. 35.5 EXPIRATION OF FOURTH ECP. If no Event of Default hereunder has occurred and is continuing, and provided Owners' have not exercised their rights set forth above in Section 35.4, Charterers shall have the following options at the expiration of the Fourth ECP: (i) upon not less than 120 days prior written notice to Owners, extend the Charter Period for a term designated by Charterers in such notice at a monthly Charter-hire equal to the Vessel's then fair rental value determined in accordance with the procedures for determining FMV set forth in Clause 35.6 or (ii) upon not less than 120 days prior written notice to Owners, purchase the Vessel on the last day of the Fourth ECP for a cash purchase price equal to the then FMV of the Vessel in which case -10- the Vessel shall be conveyed to Charterers pursuant to the provisions of Clause 42.4. In the event neither of the options set forth above in this Clause 35.5 are exercised by Charterers, Charterers shall return the Vessel to Owners pursuant to Clause 27 hereof. 35.6 FAIR MARKET VALUE. Fair Market Value ("FMV") shall be the amount which would be paid by a willing buyer (who is not a ship dealer or broker) to a willing seller for the Vessel neither under any compulsion to buy or sell Vessel assumed to be in the condition it is required to be in under this Charter as determined using the procedures set forth below in this Clause 35.6. If Charterers and Owners are not able to mutually agree as to the FMV of the Vessel, then the FMV shall be determined as follows: Each party shall appoint two independent shipbrokers. Each of the four shipbrokers who have been appointed shall provide to both parties, within 10 days of appointment, a written estimate of the FMV of the Vessel. The highest and lowest estimate shall be disregarded and the FMV of the Vessel shall be determined as the average of the two remaining estimates. Each party shall bear the fees and expenses of the brokers that each party appointed. For the purpose of determining the FMV, Shipbrokers shall assume that the Vessel is in the condition required by Clause 27 hereof. 36. REQUISITION OF TITLE. In the event that during the Charter Period title to the Vessel shall be requisitioned by, or the Vessel shall be seized by or forfeited to, any governmental authority or any person or persons, whether or not acting under color of governmental authority (except a requisition for hire referred to in Clause 23), the Charterers shall forthwith give written notice thereof to the Owners and, unless such requisition, seizure or forfeiture shall be withdrawn, reversed or released within 150 days, the Charterers, shall give 30 days written notice to the Owners of the termination of this Charter. On the termination date specified in such written notice, the Charterers will pay to the Owners the Stipulated Loss Value for the Vessel determined as set forth in Clause 42.2. Upon payment in full of such Stipulated Loss Value, the Owners will, if requested in writing by the Charterers, transfer to the Charterers the Owners' interest in the Vessel as well as in all other rights of Owners relating thereto (except Owners' rights to be indemnified pursuant to Clause 43 for acts or omissions occurring during the Charter period) to the Charterers, or, if required, to the Charterers' designee. 37. LAWS, CONSENT TO JURISDICTION. 37.1 ENGLISH LAW. This Charter shall be governed by and construed in accordance with English law. -11- 37.2 OTHER LAWS. The Charterers at their expense will cause the Vessel at all times to comply with all applicable laws, treaties and conventions, and all rules and regulations issued thereunder, and will cause the Vessel to have on board, when required thereby, valid certificates showing such compliance. 37.3 CONSENT TO JURISDICTION. The Owners and the Charterers agree that the courts of England shall have jurisdiction to settle any disputes which may arise out of or in connection with this Charter and each of them hereby waives any objection on the grounds of inconvenient forum to any proceedings which relate to this Charter being brought in the courts of England. The Owners and the Charterers agree that any process or other document connected with proceedings in the English courts which relates to this Charter shall be treated for all purposes as having been duly served if it is received as follows: (a) on behalf of the Owners by: Wikborg, Rein & Co. 1 Knightrider Court London EC4V 5JP (b) on behalf of the Charterers by: Gearbulk (UK) Ltd. Copsem Lane, Esher, Surrey KT10 9KD (or its other address from time to time) The Owners and the Charterers each hereby agree to maintain a person in England authorized to accept process throughout the period of this Charter. 38. DOCUMENTATION. The Owners will, if requested to do so by the Charters and at the expense of the Charterers, execute such documents and furnish such information as the Charterers may reasonably require to enable the Charterers to obtain and maintain the documentation of the Vessel. If either the Owners or the Charterers should desire to document or operate the Vessel under another flag and if the prior written consent of the other party and the Mortgagee; if any, which shall not be unreasonably withheld, is obtained, both parties will cooperate as necessary to re-document and/or re-flag the Vessel. The Owners will not change the port of documentation without the Charterers' prior written consent. 39. CHANGES, CHARTERERS' EQUIPMENT. 39.1 STRUCTURAL AND SIMILAR CHANGES. The Charterers may, at their cost and expense, modernize or improve the Vessel by making any structural change or alteration thereof or any change -12- or alteration in or substitution or replacement for the machinery, boilers or other equipment of the Vessel; PROVIDED, HOWEVER, that before undertaking any such changes, the Charterers shall, in each case, obtain (a) the prior written consent of the Owners, which shall not be unreasonably withheld, or (b) an opinion of an independent naval architect (appointed by the Charterers and approved by the Owners) to the effect that such change will not diminish the market value, utility and seaworthiness of the Vessel below the market value, utility and seaworthiness thereof immediately prior to such changes, alterations, substitutions or replacements if the Vessel were then in the condition and seaworthiness required to be maintained under the Charter, and that such change will not require the Vessel to be documented anew. If it should be determined that the FMV of the Vessel will be diminished as result of the changes which the Charterers have proposed, the Charterers shall pay to the Owners, and Owners shall hold in a segregated interest bearing account ("Account") an amount equal to the amount by which the FMV of the Vessel will be diminished. The Account may be pledged by Owners to secure its obligations to the Mortgagee. If the Owners and the Charterers are not able to agree on the amount to be paid into the Account prior to the time at which the work is begun the parties will use the procedures set forth in Clause 35.6 (except that the cost of all brokers shall be for the account of Charterers) to determine such amount. All machinery, boilers, or other equipment (other than the Charterers' Equipment as defined in Clause 39.2 hereof) resulting from, or affected by, such change, alteration, substitution or replacement shall without necessity of further act become part of the Vessel and the property of the Owners. All approved changes shall be expeditiously completed in a good and workmanlike manner. At the end of the Charter Period, Owners and Charterers shall determine, pursuant to the procedure described above in this Clause 39.1 the amount, if any, by which the changes to the Vessel previously performed by Charterers have reduced its FMV as of the end of the Charter Period below its FMV had such changes not been made ("End Reduction"). In the event it is determined that the amount of the End Reduction is less than the contents of the Account originally paid into the Account by Charterers, any amount in the Account exceeding the End Reduction (together with the allocable portion of the Accounts accrued interest) shall be paid to Charterers and the remainder of the Account paid to Owners; in the event it is determined that the End Reduction is greater than the amount originally paid into the Account by Charterers, the contents of Account shall be retained by Owners and Charterers shall pay to Owners an amount by which the FMV as so determined exceeds the then contents of the Account. The Charterers shall procure and pay for all permits and licenses required in connection with any such change, alteration, substitution or replacement, and shall, upon request of the Owners, deposit with the Owners an acceptable surety bond or other security satisfactory to the Owners to assure the completion of and -13- payment for any such change, alteration, substitution or replacement. 39.2 CHARTERERS' EQUIPMENT. Subject to compliance with the provisions of Clause 39.1 hereof, the Charterers may add to or install upon the Vessel such additional machinery, tackle, tools, apparel, furnishings and other equipment which are removable without damage to, and require no structural change of the Vessel ("Charterers' Equipment"). All the Charterers' Equipment shall remain the property of Charterers during the Charter Period, provided that any Charterers' Equipment not removed by the Charterers at their expense prior to redelivery of the Vessel pursuant to Clause 27 hereof shall be considered abandoned by the Charterers and may be appropriated or disposed of by the Owners without notice or accountability to the Charterers. 40. NOTICE OF LIEN, LOSS, REQUISITION, LIBEL, SALE, CASUALTIES. In the event of (i) actual total loss of the Vessel, (ii) requisition of the use of or title to, or forfeiture of, the Vessel by any governmental authority or persons acting under the authority thereof, (iii) the attachment, levying upon, detention, sequestration or taking into custody of the Vessel in connection with any proceeding, (iv) marshal's or other sale of the Vessel (v) any casualty, accident or damage to the Vessel, involving an amount in excess of USD500,000, the Charterers will forthwith give notice thereof by telex or fax, confirmed by letter (containing full particulars) to the Owners. 41. LOSS. In case the Vessel shall become an actual total loss, or, in accordance with the terms of the relevant insurance policies, be declared a constructive, agreed or compromised total loss, then in such event the Charterers shall within 30 days after such declaration, or, in case the Vessel has been lost without trace, within 150 days after the date of which the Vessel was last sighted or heard from, either (i) give at least 30 days' written notice to the Mortgagee and the Owners of the termination of this Charter or (ii) notify the Owners of their election to continue paying Charter-hire for an additional period of 90 days, at which time the Charter shall terminate. On the termination date, the Charterers will pay to the Owners the Stipulated Loss Value for the Vessel determined as set forth in Clause 42 hereof. Upon payment in full of such Stipulated Loss Value, the Owners, if requested in writing by the Charterers, will transfer their interest in the Vessel and all of Owners' rights relating thereto (except Owners' rights to be indemnified pursuant to Clause 43 for acts or omissions occurring during the Charter Period) to the Charterers, or, if required, to the Charterers' designee. -14- 42. PAYMENT OF STIPULATED LOSS VALUE AND CONVEYANCE. 42.1 PAYMENT OF STIPULATED LOSS VALUE. If the Charterers shall give a notice of termination pursuant to Clause 36 or Clause 41 hereof, then the Charterers shall make the payment, if any, required to be made by the Charterers pursuant to such Clauses. On the termination date specified in such notice this Charter shall terminate (except with respect to obligations or liabilities of the Charterers which arose on or prior to such date) and the Owners, at the expense of the Charterers, will, upon receipt of the payments required by such clause on such date, transfer all of their right, title and interest in the Vessel to the Charterers. 42.2 STIPULATED LOSS VALUE. The Stipulated Loss Value shall be equal to the sum of an amount computed in accordance with the Stipulated Loss Value Calculation Sheet attached hereto as Schedule 2 hereof. Such Stipulated Loss Value shall be determined as of the Payment Date immediately preceding the termination date of the Charter or if no Payment Date precedes such termination date, as of the Delivery Date. 42.3 CONDITIONS OF TERMINATION. Notwithstanding any other term hereof, this Charter shall not terminate pursuant to Clauses 36, 41 or 44.1.7 until, in addition to payment of the Stipulated Loss Value, Charterers shall have discharged, or made provision satisfactory to the Owners for the discharge of, all Charter-hire, liabilities and obligations of the Charterers due and payable on or accruing up to and including the date of such termination, and, in case of a purchase of the Vessel by the Charterers, this Charter shall not terminate until the completion of such purchase. 42.4 CONDITIONS OF CONVEYANCE. Any conveyance of the Owners' interest in the Vessel to the Charterers under any provision of this Charter shall be made without recourse or warranty as set forth in Clause 30 hereof except that Vessel shall be conveyed free of all liens and encumbrances placed thereon by Owners. In the event that such conveyance is effected as the result of an Event of Default all expenses (excluding income taxes) incidental to such purchase and conveyance shall be borne by the Charterers, but in all other circumstances each party shall bear their own costs and expenses. Upon any conveyance of the Owners' interest in the Vessel pursuant to any such section and termination of this Charter, (i) all of the Owners' right and claims with respect to the Vessel against third parties for damages to or loss of the Vessel, for requisition, seizure or forfeiture of the Vessel, or otherwise, and to any insurance proceeds or amounts payable by any governmental authority in connection with a requisition, seizure or forfeiture or excess proceeds not theretofore received by the Owners shall thereupon forthwith belong to, and be transferred to, the -15- Charterers, subject to the rights, if any, of underwriters, and the Owners will, at the expense of the Charterers, take all such action as the Charterers or their designee may reasonably request to confirm such ownership; (ii) any insurance proceeds or amounts paid by any governmental authority in connection with any requisition, seizure or forfeiture, and excess proceeds received by the Owners prior to or on such termination date shall be credited against the Charterers' obligation to pay the Stipulated Loss Value for the Vessel to the extent not previously paid by the Charterers, and if the aggregate amount of any insurance proceeds, amounts paid by any governmental authority in connection with any requisition, seizure or forfeiture, and excess proceeds received by the Owners shall exceed the Stipulated Loss Value for the Vessel computed pursuant to this Clause 42 less all or part of any such Stipulated Loss Value previously paid by the Charterers, the Owners will promptly pay such excess amount to the Charterers; and (iii) the Charterers will agree to indemnify, to the extent specified in Clause 43, the Owners against any claim for repayment of any insurance proceeds or other amounts credited against the purchase price, and to assume liability and responsibility for any such claim. 43. INDEMNIFICATION AND EXPENSES. The Charterers hereby assume liability for and at their expense agree to indemnify, protect, save and keep harmless the Owners, their respective successors, assigns, agents and servants from and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, suits, costs, expenses and disbursements (including reasonable legal fees and disbursements) of whatsoever kind and nature, except liability for taxes levied or based on the income of Owners, which: (i) Arise out of facts occurring prior to the commencement of the Charter Period; or (ii) Arise out of the sale of the Vessel to the Owners by the Charterers (but excluding costs and expenses of negotiating and completing the sale, in respect of which each party shall bear its own and sales taxes, if any, which shall be for the account of Owners); or (iii) Relate in any way to or arise out of the Charterers' possession, use, operation, chartering, conditioning, maintenance or repair of the Vessel during the Charter Period, or the termination of this Charter; provided, however, the Charterers shall not be required so to indemnify any person for such loss or liability where such loss or liability: (a) results from the willful misconduct, intentional nonfullfillment of contractual obligations or negligence of such persons being indemnified; (b) is an amount -16- paid in settlement of any litigation with respect to which this indemnity would otherwise apply where such settlement is effected without the written consent of the Charterers; or (c) arises out of any act, default or omission of the Owners, their successors, assigns, agents or servants. In case any litigation shall be brought against the Owners with respect to which this indemnity provision applies, the Owners shall promptly notify the Charterers of the commencement thereof, and the Charterers shall be entitled to participate in (and, to the extent that it shall wish, to direct) the defense thereof at their own expense; provided, however, that such defense shall be conducted by counsel of good standing and satisfactory to the Owners. In the event that the Vessel shall be attached, levied upon, or taken into custody, or detained or sequestered by virtue of any proceeding in any court or tribunal or by governmental authority, the Charterers will promptly give notice to the Owners of such event, the Charterers, at the Charterers' expense, within 15 days thereafter, will cause the Vessel to be released and will cause all liens on the Vessel in connection with such event or other action to be discharged (whether by furnishing a surety bond or otherwise) and will forthwith notify the Owners of such release and discharge. If, within said 15-day period, the Vessel is not so released and any such lien discharged, the Owners may, at their option, but without obligations so to do, obtain such release and discharge, and all expenses of the Owners in connection therewith shall be reimbursed by the Charterers on demand. 44. DEFAULTS. 44.1 EVENTS OF DEFAULT. The following described events shall constitute "Events of Default": 44.1.1. The Charterers shall fail to pay the whole or any part of the Charter-hire or Stipulated Loss Value payable pursuant to the terms of Clause 42.1 hereof, within three (3) banking days of receiving a second written notice from the Owners that the Charter-hire or Stipulated Loss Value, as the case may be, was not paid within three (3) banking days of receiving a first written notice from the Owners that the Charter-hire or Stipulated Loss Value, as the case may be, was not paid on the date when the same is due and payable; or 44.1.2 Any representation or warranty set forth herein or delivered by Charterers in connection with this Charter shall prove to be false or misleading in any material respect when made; or 44.1.3 An Event of Default as defined therein shall have occurred and remain unremedied under that certain Guaranty of the Obligations of Chantal Shipping Corporation of even date herewith; or -17- 44.1.4 Any of the insurance required to be provided by Charterers pursuant to Clause 34 hereof shall cease to be in force; or 44.1.5. The Charterers shall fail to perform or comply with any material provisions of this Charter or to begin and to diligently take such steps or actions as may be necessary in order to cure that failure to perform or to comply with the terms of this Charter as soon as practicable, but in no event more than forty-five (45) days of receiving written notice from the Owners of such failure; or 44.1.6. The Charterers shall be involved in financial difficulties as evidenced: (a) by their admitting their inability to pay their debts generally as they become due or otherwise acknowledging its insolvency; (b) by their filing a petition in bankruptcy or for reorganization or for the adoption of an arrangement under any law of the United States or any other jurisdiction which relates to the liquidation or reorganization of companies or the modification or alteration of the rights of creditors, (each such law, as from time to time in effect, being sometimes referred to as a "bankruptcy act", each as now or in the future amended) or an answer or other pleading admitting or failing to deny the material allegations of such a petition or seeking, consenting to or acquiescing in the relief therein provided; (c) by their making an assignment, or so-called trust mortgage or the like, for the benefit of their creditors or by its making a proposal to their creditors under any bankruptcy act; or by an encumbrancer taking possession of the Vessel; (d) by their consenting to the appointment of a receiver or a trustee (or other person performing a similar function) for the Vessel or all or a substantial part of its property; (e) by their being adjudicated a bankrupt; (f) by the entry of a court order which shall not be vacated, set aside or stayed within 30 days from the date of entry, (i) appointing a receiver or a trustee for all or a substantial part of their property, or (ii) approving a petition filed or application made against them for, or effecting an arrangement in, bankruptcy or for a reorganization or other relief -18- pursuant to any bankruptcy act or for any other judicial modification or alteration of the rights of creditors; or (g) by the assumption of custody or sequestration by a court of competent jurisdiction of all or a substantial part of their property, which custody or sequestration shall not be suspended or terminated within 30 days from its inception. 44.2.1. OWNERS' REMEDIES. Immediately upon occurrence of an Event of Default, the Owners may, in their sole discretion, by notice to the Charterers, declare that an Event of Default has occurred; and at any time thereafter, so long as the Charterers shall not have remedied all outstanding Events of Default, the Owners, by means of a second notice to the Charterers delivered to the Charterers may declare this Charter to be terminated and following the expiration of the 48 hour period referred to in 44.2.2. below, the Owners may resort to, and the Charterers shall comply with, one or more of the following remedies as designated by Owners, to the extent permitted by, and subject to compliance with, any mandatory requirements of applicable law then in effect: (a) the Owners may require the Charterers at the Charterers' expense to, and the Charterers hereby agree that they will, promptly redeliver the Vessel, or cause the Vessel to be redelivered, to the Owners with all reasonable dispatch allowing for the requirements of any laden voyage on which the Vessel may then be engaged and in the condition required by the terms of Clause 9 hereof, and all obligations of the Charterers under said Clause 27 shall apply to such redelivery; or (b) the Owners or their agent at the Owners' option without further notice, may, but shall be under no obligation to, retake the Vessel wherever found, whether upon the high seas or at any port, harbor or other place and irrespective of whether the Charterers, any subcharterer or any other person may be in possession of the Vessel, all without prior demand and without legal process, and for that purpose the Owners or their agent may enter upon any dock, pier or other premises where the Vessel may be and may take possession thereof, without the Owners or their agent incurring any liability by reason of such retaking, whether for the restoration or damage to property caused by such retaking or otherwise. (c) at Owners' option, and in its sole discretion, Owners may declare immediately due and payable, and receive from Charterers and sue to enforce the payment -19- thereof, in addition to all sums then due hereunder, an amount equal to the Stipulated Loss Value set forth in Schedule 2 hereof calculated after the last payment of Charter-hire actually received by Owners, plus interest thereon at the rate of interest specified in Clause 32 hereof from the date of default until the date of payment, and, after receipt in good funds of the sums described above, Owners shall, if they have not already done so, terminate the Charter and, pay over to Charterers as, when and if received, any net proceeds (after all costs and expenses) if it has previously disposed of the Vessel, or if it has not previously disposed of the Vessel convey to Charterers all of its right, title and interest in and to the Vessel, as is, where is and with all faults, without recourse and without warranty provided, that the Vessel shall be free and clear of all encumbrances created by Owners. An Event of Default shall constitute (as the case may be) either a repudiatory breach of, or breach of condition by the Charterers under, this Charter or an agreed terminating event the occurrence of which will (in any such case) entitle the Owners by notice to the Charterers to terminate the letting and hiring of the Vessel under this Charter and recover the amounts provided for in Clause 44.2.1(c) either as liquidated damages or as an agreed sum payable on the occurrence of such event. The use of the defined term "Event of Default" shall not prejudice the effect of this paragraph. 44.2.2 If the Owners have given the Charterers the second notice of Owners' exercise of its rights under this Charter referred to in 44.2.1 above the Charterers may, but shall not be obliged to, give notice to the Owners, which must be received by the Owners within 48 hours of the delivery of the Owners' notice to the Charterers, stating that the Charterers elect to pay to the Owners, on a payment dated not less than 10 days after the date on which the Charterers' notice is received, an amount equal to (x) the then current Stipulated Loss Value of the Vessel, as computed in accordance with Clause 42.2 hereof and, as soon as it can practicably be determined, and (y) the amount (if any) by which then current FMV of the Vessel, as determined in accordance with Clause 35.6 hereof exceeds the Stipulated Loss Value plus all amounts then due but not paid. Upon payment of the relevant amount the Owners shall transfer all of their right, title and interest in the Vessel, as well as in all such other rights, as required by Clause 42.4, to the Charterers, or to the Charterers' designee. If the 48 hour notice referred to above is given, the Owners will exercise their rights in paragraphs (a) and (b) above in a manner which will not preclude the Charterers' purchase of the Vessel pursuant to this sub-clause. Nevertheless, the Owners shall not be required to permit the normal trading of the Vessel by the Charterers during the time while that purchase is pending. -20- If the Charterers fail to pay the amount due in order to take title to the Vessel on the required date, the Owners shall then have the full right to exercise its remedies set out in paragraphs (a) and (b) above and the Charterers shall have no further right to acquire title to the Vessel. The exercise by the Owners of their remedies in this Clause shall be without prejudice, and in addition, to any of the Owners' other remedies referred to in this Charter. 44.3 OWNERS' BREACH OF CLAUSE 9(A). If the Charterers should be deprived of the full possession, use and/or control of the Vessel due to any default on the part of the Owners hereunder for any period or any cumulative periods totalling 60 days or more during the first six years of the Charter Period or totalling 10 days or more during each of the extensions of the Charter Period contemplated by Clause 35.1, 35.2, 35.3 and 35.4 hereof, the Charterers without prejudice to Charterers' other rights hereunder shall have the right, exercisable in their sole discretion, to: (a) pay off the Mortgage (up to but not exceeding the Stipulated Loss Value); (b) terminate this Charter; and (c) pay to Owners in cash the Stipulated Loss Value set forth on Schedule 2 hereof based on the last payment of Charter-hire actually received by Owners less all amounts, if any, paid to Mortgagee pursuant to Clause 44.3(a) and thereupon have the Owners' title in the Vessel conveyed to the Charterers pursuant to Clause 42.4 hereof. 45 BANKING DAYS. As used in this Clause the term "banking day" means a day on which banks are open for the conduct of ordinary business in both London, U.K. and New York, New York, U.S.A. 46. NOTICE. All notices and other communications pursuant to or relating to this Charter shall be in writing and shall be delivered in hand by courier or other means, or sent by registered air mail with postage pre-paid, or by telex or telefax with receipt confirmed by answerback or other means, addressed as follows: -21- (a) AFG Alouette Arrow Limited Partnership C/O AFG ASIT Corporation, General Partner c/o American Finance Group 14th Floor Exchange Place Boston, MA 02109 U.S.A. Attention: General Counsel Telephone: (617) 542 - 1200 Telefax: (617) 523 - 1410 (b) Chantal Shipping Corporation c/o Gearbulk Holding Limited Par La Ville Place, 14 Par La Ville Road Hamilton HMJX, Bermuda Attention: Arthur E.M. Jones Telephone: (809) 295-2184 Telefax: (809) 295-2234 with a copy to: Gearbulk (UK) Ltd. Milbourne House Copsem Lane Esher, Surrey KT10 9EP United Kingdom Attention: Finance Department Telephone: 44-372-470707 Telefax: 44-372-471148 or such other address as either party shall designate in a written notice to the other party hereto. Any notice provided for herein shall be deemed to have been effected when delivered in hand to an officer of the addressee, or if sent by registered air mail or by courier or other similar means and if properly addressed, either when received or on the seventh day following the day of dispatch, whichever shall occur earlier. Notices sent by telex or telefax shall be deemed to have been received when sent. 47. Charterers agree that the courts of England shall have jurisdiction to settle any disputes which may arise out of or in connection with this Charter. 4.7.1 Charterers hereby waive any objection on the grounds of inconvenient forum to any proceedings which relate to this Charter being brought in the courts of England. -22- (a) Charterers agree that any process or other document connected with proceedings in the English courts which relate to this Charter shall be treated for all purposes as having been duly served on the Charterers if it is received by Gearbulk (UK) Ltd. presently of Copsem Lane, Esher, Surrey KT10 9EP, U.K. (b) If at any time while any of the Liabilities remain outstanding the Charterers fail to maintain a process agent in the United Kingdom authorized to receive such process and documents referred to in subsection (a) above, the Owners may, on Charterer's behalf, appoint any person whom the Owners think appropriate to be the Charterer's process agent in the United Kingdom and that appointment shall be, in every respect, as effective as if made by the Charterers themselves. 48. TIME OF THE ESSENCE. Time shall be of the essence in the performance by Charterers of their obligations hereunder. -23- SCHEDULE 1 FURTHER PARTICULARS OF THE VESSEL. Port of registry: Bergen Signal letters: LALK4 Classification: Germanischer Lloyd (NO. 33788) Builder: Juliana Constructoria Gijonesa, Gijon (Spain) Principal Dimensions: --------------------- Length (O.A.): 159.22M Length (B.P.): 151.61M Breadth (mld.): 21.00M Depth (mld.): 12.60M Full Load Draft (ext.): 9.15M Full Load Displacement: 21,742MT Light Weight: 7,500MT Dead Weight: 14,242MT Tonnage: gross net -------- ----- --- - Registered: 12,688 4,284 - Panama Canal: Not measured - Suez Canal: Not measured Main engine: AESA Sulzer Type 6RND68 Aux. engines: 2 Diesel Gen Wartsilla 62YTS 1 Caterpillar 3508DITA 1 Shaft Generator Siemens 1FB33268 Cargo Gear: 3x16MT El. Hydr. Crane KH-1622 Cargo Holds: 4 x Tanks of Abt 1832.4 CBM for Liquid Pitch 2 x Dry Cargo Holds Box Shaped, each 32 x 16.2 x 14.285M Originally Delivered: 11/80 -24- SCHEDULE 2 STIPULATED LOSS VALUE CALCULATION SHEET Stated as Percentage of The Owner's Cost of Purchasing the Vessel
AFTER AFTER PRIMARY PRIMARY TERM STIPULATED LOSS TERM STIPULATED LOSS PAYMENT NO. VALUE PAYMENT NO. VALUE - ----------- --------------- ----------- --------------- Prior to 1 116.00 39 85.80 1 115.29 40 84.96 2 114.57 41 84.12 3 113.85 42 83.27 4 113.13 43 82.42 5 112.40 44 81.56 6 111.67 45 80.71 7 110.94 46 79.84 8 110.20 47 78.98 9 109.47 48 78.11 10 108.72 49 77.23 11 107.98 50 76.36 12 107.23 51 75.48 13 106.48 52 74.59 14 105.73 53 73.70 15 104.97 54 72.81 16 104.21 55 71.92 17 103.44 56 71.02 18 102.68 57 70.12 19 101.91 58 69.21 20 101.13 59 68.30 21 100.36 60 67.38 22 99.58 61 66.47 23 98.79 62 65.54 24 98.01 63 64.62 25 97.22 64 63.69 26 96.42 65 62.75 27 95.63 66 61.82 28 94.83 67 60.87 29 94.02 68 59.93 30 93.22 69 58.98 31 92.41 70 58.03 32 91.59 71 57.07 33 90.78 72 56.11 34 89.96 73 55.14 35 89.13 74 54.17 36 88.31 75 53.20 37 87.48 76 52.22 38 86.64 77 51.24
-25- SCHEDULE 2 STIPULATED LOSS VALUE CALCULATION SHEET Stated as Percentage of The Owner's Cost of Purchasing the Vessel
AFTER AFTER PRIMARY PRIMARY TERM STIPULATED LOSS TERM STIPULATED LOSS PAYMENT NO. VALUE PAYMENT NO. VALUE - ----------- --------------- ----------- --------------- 78 50.25 109 22.53 79 49.26 110 22.26 80 48.27 111 21.99 81 47.27 112 21.71 82 46.27 113 21.43 83 45.26 114 21.14 84 44.25 115 20.84 85 43.24 116 20.53 86 42.22 117 20.22 87 41.19 118 19.90 88 40.17 119 19.58 89 39.13 120 19.25 90 38.10 121 18.91 91 37.06 122 18.56 92 36.01 123 18.20 93 34.96 124 17.84 94 33.91 125 17.47 95 32.85 126 17.10 96 31.79 127 16.71 97 30.72 128 16.32 98 29.65 129 15.92 99 28.57 130 15.52 100 27.49 131 15.10 101 26.40 132 14.68 102 25.00 133 14.25 103 23.98 134 13.81 104 23.75 135 13.37 105 23.52 136 12.91 106 23.28 137 12.45 107 23.04 138 12.00 108 22.79
-26- EX-27 6 EXHIBIT 27
5 0000879497 AFG INVESTMENT TRUST D 12-MOS DEC-31-1998 DEC-31-1998 DEC-31-1998 14,210,331 0 2,770,647 0 0 16,980,978 106,144,669 45,307,297 78,517,976 8,793,443 27,786,882 0 0 0 41,937,651 78,517,976 0 19,069,010 0 0 11,744,669 0 3,449,304 3,875,037 0 3,875,037 0 0 0 3,875,037 0 0
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