avianca - notice of presentment (10.28.20) 4825-2914-0432 v.1
TRANSCRIPT
44810.00006
Presentment Date and Time: November 6, 2020 at 12:00 p.m. (prevailing Eastern Time) Objection Deadline: November 5, 2020 at 4:00 p.m. (prevailing Eastern Time)
Dennis F. Dunne Evan R. Fleck MILBANK LLP 55 Hudson Yards New York, New York 10001 Telephone: (212) 530-5000 Facsimile: (212) 530-5219 Counsel for Debtors and Debtors-In-Possession
Gregory A. Bray MILBANK LLP 2029 Century Park East, 33rd Floor Los Angeles, CA 90067 Telephone: (424) 386-4000 Facsimile: (213) 629-5063
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------------------x : In re: : : AVIANCA HOLDINGS S.A., et al.,1 : : Debtors. : : -----------------------------------------------------------------x
Chapter 11 Case No. 20-11133 (MG) (Jointly Administered)
NOTICE OF PRESENTMENT OF FIRST STIPULATION AND
ORDER BETWEEN DEBTORS AND AIRCRAFT COUNTERPARTIES CONCERNING CERTAIN AIRCRAFT ENGINES
PLEASE TAKE NOTICE that each First Stipulation and Order Between Debtors and
Aircraft Counterparties Concerning an Aircraft Engine, which are annexed hereto as Annex A (the
1 The Debtors in these chapter 11 cases, and each Debtor’s federal tax identification number (to the extent
applicable), are as follows: Avianca Holdings S.A. (N/A); Aero Transporte de Carga Unión, S.A. de C.V. (N/A); Aeroinversiones de Honduras, S.A. (N/A); Aerovías del Continente Americano S.A. Avianca (N/A); Airlease Holdings One Ltd. (N/A); America Central (Canada) Corp. (00-1071563); America Central Corp. (65-0444665); AV International Holdco S.A. (N/A); AV International Holdings S.A. (N/A); AV International Investments S.A. (N/A); AV International Ventures S.A. (N/A); AV Investments One Colombia S.A.S. (N/A); AV Investments Two Colombia S.A.S. (N/A); AV Taca International Holdco S.A. (N/A); Avianca Costa Rica S.A. (N/A); Avianca Leasing, LLC (47-2628716); Avianca, Inc. (13-1868573); Avianca-Ecuador S.A. (N/A); Aviaservicios, S.A. (N/A); Aviateca, S.A. (N/A); Avifreight Holding Mexico, S.A.P.I. de C.V. (N/A); C.R. Int’l Enterprises, Inc. (59-2240957); Grupo Taca Holdings Limited (N/A); International Trade Marks Agency Inc. (N/A); Inversiones del Caribe, S.A. (N/A); Isleña de Inversiones, S.A. de C.V. (N/A); Latin Airways Corp. (N/A); Latin Logistics, LLC (41-2187926); Nicaraguense de Aviación, Sociedad Anónima (Nica, S.A.) (N/A); Regional Express Américas S.A.S. (N/A); Ronair N.V. (N/A); Servicio Terrestre, Aereo y Rampa S.A. (N/A); Servicios Aeroportuarios Integrados SAI S.A.S. (92-4006439); Taca de Honduras, S.A. de C.V. (N/A); Taca de México, S.A. (N/A); Taca International Airlines S.A. (N/A); Taca S.A. (N/A); Tampa Cargo S.A.S. (N/A); Technical and Training Services, S.A. de C.V. (N/A); AV Loyalty Bermuda Ltd. (N/A); Aviacorp Enterprises S.A. (N/A). The Debtors’ principal offices are located at Avenida Calle 26 # 59 – 15 Bogotá, Colombia.
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“Stipulations”), will be presented for signature to the Honorable Judge Martin Glenn, United States
Bankruptcy Judge for the Southern District of New York (the “Court”), Room 501, One Bowling
Green, New York, New York, 10004 on November 6, 2020 at 12:00 p.m. (prevailing Eastern Time).
PLEASE TAKE FURTHER NOTICE that any objections or responses to the Stipulations
shall: (a) be in writing; (b) conform to the Federal Rules of Bankruptcy Procedure, the Local
Bankruptcy Rules for the Southern District of New York, all General Orders applicable to chapter 11
cases in the United States Bankruptcy Court for the Southern District of New York, and the Order
Implementing Certain Notice and Case Management Procedures [Docket No. 47] (the “Case
Management Order”); (c) be filed electronically with this Court on the docket of In re Avianca
Holdings S.A., Case 20-11133 (MG) by registered users of this Court’s electronic filing system and in
accordance with the General Order M-399 (which is available on this Court’s website at
http://www.nysb.uscourts.gov) by November 5, 2020 at 4:00 p.m., prevailing Eastern Time (the
“Objection Deadline”); and (d) be promptly served on the following parties: (i) the Chambers of the
Honorable Martin Glenn, United States Bankruptcy Court for the Southern District of New York, One
Bowling Green, New York, NY 10004; (ii) the Debtors, c/o Richard Galindo
([email protected]); (iii) Milbank LLP (Attn: Evan R. Fleck, Esq. and Gregory A. Bray,
Esq. ([email protected] and [email protected])), counsel for the Debtors; (iv) Morrison &
Foerster LLP (Attn: Brett H. Miller, Esq. and Todd M. Goren, Esq. ([email protected] and
[email protected])), counsel to the Official Committee of Unsecured Creditors (the “Committee”);
(v) William K. Harrington, U.S. Department of Justice, Office of the U.S. Trustee, 201 Varick Street,
Room 1006, New York, NY 10014 (Attn: Brian Masumoto, Est. and Greg Zipes, Esq.); (vi) the
Securities and Exchange Commission, 100 F Street, NE, Washington, D.C. 20549; (vii) the Federal
Aviation Administration, 800 Independence Ave., S.W. Washington, DC 20591 (Attn: Office of the
Chief Counsel); and (viii) the attorneys for any other official committee(s) that may be appointed in
these Chapter 11 Cases.
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PLEASE TAKE FURTHER NOTICE that, if no objections are received by the Objection
Deadline, the Court may approve the Stipulations without further notice.
PLEASE TAKE FURTHER NOTICE that if an objection is timely filed by the Objection
Deadline, the Court will notify the Debtors and the objecting parties of the date and time of the hearing
with respect to the Stipulations and the Debtors’ obligation to notify all other parties entitled to receive
notice. The Debtors and any objecting parties are required to attend the hearing in accordance with
General Order M-543 (which can be found at http://www.nysb.uscourts.gov), and failure to attend may
result in relief being granted or denied upon default.
PLEASE TAKE FURTHER NOTICE that copies of the Stipulations and other pleadings for
subsequent hearings may be obtained free of charge by visiting the KCC website at
http://www.kccllc.net/avianca. You may also obtain copies of any pleadings by visiting at
http://www.nysb.uscourts.gov in accordance with the procedures and fees set forth therein.
Dated: New York, New York October 29, 2020
/s/ Evan Fleck Dennis F. Dunne Evan R. Fleck MILBANK LLP 55 Hudson Yards New York, New York 10001 Telephone: (212) 530-5000 Facsimile: (212) 530-5219
- and -
Gregory A. Bray MILBANK LLP 2029 Century Park East, 33rd Floor Los Angeles, CA 90067 Telephone: (424) 386-4000 Facsimile: (213) 629-5063 Counsel for Debtors and Debtors-in-Possession
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Annex A
Stipulations
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44810.00035
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------------x : In re: : : AVIANCA HOLDINGS S.A., et al. : : Debtors.1 : : ------------------------------------------------------------------x
Chapter 11 Case No. 20-11133 (MG) (Jointly Administered)
FIRST STIPULATION AND ORDER BETWEEN DEBTORS AND ENGINE
COUNTERPARTIES CONCERNING AN AIRCRAFT ENGINE
This stipulation (the “Stipulation”) is entered into as of October 28, 2020, by and
between TACA International Airlines, S.A. (the “Lessee Debtor” and together with the above-
captioned parties, the “Debtors”) and each of the parties set forth in Exhibit A hereto as engine
counterparties (the “Engine Counterparties”) with respect to the engine lease (the “Lease”) and
related documents set forth in Exhibit A (collectively with the Lease, the “Engine Agreements”)2
1 The Debtors in these chapter 11 cases, and each Debtor’s federal tax identification number (to the extent applicable), are as follows: Avianca Holdings S.A. (N/A); Aero Transporte de Carga Unión, S.A. de C.V. (N/A); Aeroinversiones de Honduras, S.A. (N/A); Aerovías del Continente Americano S.A. Avianca (N/A); Airlease Holdings One Ltd. (N/A); America Central (Canada) Corp. (00-1071563); America Central Corp. (65-0444665); AV International Holdco S.A. (N/A); AV International Holdings S.A. (N/A); AV International Investments S.A. (N/A); AV International Ventures S.A. (N/A); AV Investments One Colombia S.A.S. (N/A); AV Investments Two Colombia S.A.S. (N/A); AV Taca International Holdco S.A. (N/A); Avianca Costa Rica S.A. (N/A); Avianca Leasing, LLC (47-2628716); Avianca, Inc. (13-1868573); Avianca-Ecuador S.A. (N/A); Aviaservicios, S.A. (N/A); Aviateca, S.A. (N/A); Avifreight Holding Mexico, S.A.P.I. de C.V. (N/A); C.R. Int’l Enterprises, Inc. (59-2240957); Grupo Taca Holdings Limited (N/A); International Trade Marks Agency Inc. (N/A); Inversiones del Caribe, S.A. (N/A); Isleña de Inversiones, S.A. de C.V. (N/A); Latin Airways Corp. (N/A); Latin Logistics, LLC (41-2187926); Nicaraguense de Aviación, Sociedad Anónima (Nica, S.A.) (N/A); Regional Express Américas S.A.S. (N/A); Ronair N.V. (N/A); Servicio Terrestre, Aereo y Rampa S.A. (N/A); Servicios Aeroportuarios Integrados SAI S.A.S. (92-4006439); Taca de Honduras, S.A. de C.V. (N/A); Taca de México, S.A. (N/A); Taca International Airlines S.A. (N/A); Taca S.A. (N/A); Tampa Cargo S.A.S. (N/A); Technical and Training Services, S.A. de C.V. (N/A). The Debtors’ principal offices are located at Avenida Calle 26 # 59 – 15 Bogotá, Colombia. 2 “Engine Agreements” refers to the form of such agreements as in effect at any applicable time. The form of the Engine Agreements in effect immediately prior to the Petition Date are referred to herein as the “Original Engine Agreements”).
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in respect of the engine listed in Exhibit A hereto, along with the related documents and records
(including maintenance records) with respect to the Lease (collectively, the “Engine Equipment”);
WHEREAS, on May 10, 2020 (the “Petition Date”), the Debtors filed voluntary
petitions under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”) with the
United States Bankruptcy Court for the Southern District of New York (the “Court”);
WHEREAS, this Stipulation is effective from the Petition Date through the earliest
to occur of (i) the date the Engine Equipment is returned or made available for return, as applicable,
to the Engine Counterparties as required pursuant to paragraph C or paragraph D (as applicable),
(ii) the date of the entry of an order of the Court approving the assumption of the Original Engine
Agreements pursuant to section 365 of the Bankruptcy Code, (iii) the effective date of a plan of
reorganization for the Debtors confirmed by the Court, (iv) the date of an order converting the
Lessee Debtor’s chapter 11 case to a case under chapter 7 of the Bankruptcy Code, (v) the date
Aerovías del Continente Americano S.A. Avianca announces that it has permanently discontinued
all scheduled passenger service, (vi) the date of substantial consummation of a sale of all or
substantially all assets of the Debtors, and (vii) such other date as the Engine Counterparties and
the Debtors may agree in writing with respect to the Engine Equipment (such period, the
“Stipulation Period”);
WHEREAS, the entity identified as such in Exhibit A is the lessor of the Engine
Equipment and related items;
WHEREAS, the Engine Counterparties assert rights and interests (collectively, the
“Engine Interests” and each an “Engine Interest”) in the Engine Equipment;
WHEREAS, the Debtors and the Engine Counterparties do hereby STIPULATE
and AGREE as follows:
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A. The Debtors represent and warrant that as of the date of the execution of
this Stipulation and at the time the Engine Agreements were entered into by and between the
Lessee Debtor and the Engine Counterparties, the Lessee Debtor did not hold an air carrier
operating certificate issued pursuant to chapter 447 of title 49, United States Code and, accordingly
for that reason, Section 1110 of the Bankruptcy Code is not applicable to the Engine Equipment.
B. During the Stipulation Period the Debtors shall, at the Debtors’ expense
(except as otherwise noted herein), perform the covenants pursuant to the terms set forth on Exhibit
C and pay for any usage of the Engine Equipment during the Stipulation Period on a power by the
hour basis pursuant to the terms attached hereto as Exhibit B (as modified to reflect the existing
transaction-specific details, the “PBH Agreement”), and the PBH Agreement shall be executed
and delivered by the parties thereto promptly following the entry of an order approving this
Stipulation.
C. The Debtors may, subject to any requirement by the Court that a further
order or notice is necessary, at any time upon 15 days’ notice to the Engine Counterparties, reject
the Engine Agreements or abandon the Engine Equipment. If the Engine Counterparties have
complied with the conditions set forth in paragraphs 1 and 2 of Exhibit D, then, at the Engine
Counterparties’ expense, the Debtors shall as soon as reasonably practicable return the Engine
Equipment to the Engine Counterparties at a location in the contiguous United States designated
by the Engine Counterparties or such other location mutually acceptable to the Debtors and the
Engine Counterparties. If, within 20 days of the Debtors’ notice of rejection or abandonment, the
Engine Counterparties have (I) not complied with the conditions set forth in paragraphs 1 and 2 of
Exhibit D, or (II) the Engine Counterparties fail to otherwise reasonably cooperate with the Lessee
Debtor in accepting the return of the Engine Equipment during such period, then the Debtors shall
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make the Engine Equipment available for return in its then-current location. In any such case, the
Engine Equipment will be returned or made available, as applicable, in the Engine Equipment’s
then “as is, where is” condition, and (x) upon the conclusion of the Engine Shipment (as defined
in Exhibit D) of the Engine Equipment (but subject to the second following sentence), or (y) after
5 days of the Engine Equipment being made available for return, including for an Engine
Counterparty Shipment (as defined in Exhibit D), in any such case, all risk of damage, injury, loss
and liability of the Engine Equipment shall pass to the Engine Counterparties. Immediately
following the Engine Shipment (as defined in Exhibit D) or the Engine Equipment being made
available for return, including for the Engine Counterparty Shipment, as applicable, the Debtors
shall have no further obligations whatsoever with respect to the Engine Equipment except for any
reasonable cooperation pursuant to subclauses (i), (ii) and (iii) of this paragraph C below; provided,
however, that this sentence shall not affect or impair the rights of the Engine Counterparties to
assert claims as provided in this Stipulation. Notwithstanding anything to the contrary in this
Stipulation or the PBH Agreement, other than as a result of the Debtors’ gross negligence or willful
misconduct, all risk of damage, injury, loss and liability arising from or in connection with any
Engine Shipment (as defined in Exhibit D), to the extent not covered by insurance maintained by
the Debtors, shall be borne by the Engine Counterparties. In connection with the return of the
Engine Equipment pursuant to this paragraph C, the Debtors shall, at the Engine Counterparties’
expense, (i) as soon as reasonably practicable, deliver to the Engine Counterparties all technical
records and documents relating to the Engine Equipment that are in the Debtors’ possession or
control, (ii) use commercially reasonable efforts to obtain technical records and documents from
third parties in possession of such records and documents and (iii) cooperate in taking all actions
(including filings) and signing all documents reasonably required by the Engine Counterparties
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with regard to the return of the Engine Equipment to the Engine Counterparties, certificates with
respect to the condition of the Engine Equipment at return, the transfer of title, and its export from
the country of previous importation, in each case, to the extent applicable and practicable.
Notwithstanding anything herein, or in Exhibit D, to the contrary, if the Debtors elect to reject the
Engine Agreements or abandon the Engine Equipment pursuant to this paragraph C, and such
Engine Equipment has incurred damage after the Petition Date as a result of, related to, or as a
consequence of (x) the Debtors’ negligence or (y) Foreign Object Damage (“FOD”), in either case
which results in the Engine Equipment being noncompliant with the redelivery condition set forth
in the Original Engine Agreements, then the Debtors shall be required to: (I) as soon as reasonably
practicable, rectify such noncompliance in accordance with the Original Engine Agreements at its
cost; or (II) in the case of the Debtors’ negligence, redeliver the Engine Equipment to the Engine
Counterparties and indemnify the Engine Counterparties for the actual cost and expense of putting
the Engine Equipment into the redelivery condition required by the Original Engine Agreements,
and upon receipt of an invoice or invoices reasonably documenting such costs and expenses,
promptly pay such costs and expenses; or (III) in the case of FOD, turn over any insurance proceeds
received related to such FOD, provided that any required deductible in the amount of $50,000 is
paid by the Engine Counterparties.
D. The Engine Counterparties may notify the Debtors of their desire to
terminate the Stipulation Period as to the Engine Equipment at any time upon 60 days’ notice of
termination to the Debtors. In addition, within 10 days of receipt by the Engine Counterparties of
any Mandatory Order Notice (as defined in Exhibit C) with respect to the Engine Equipment, the
Engine Counterparties may notify the Debtors of their desire to terminate the Stipulation Period
with respect to the Engine Equipment. In the case of any such notice of termination under this
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paragraph D to the Debtors, the Debtors, subject to any requirement by the Court that a further
order or notice is necessary, shall promptly reject the Engine Agreements or abandon the Engine
Equipment and, in either such case, the Debtors shall, at the Engine Counterparties’ expense, take
all actions subject to the conditions as are set forth in paragraph C with respect to the Engine
Equipment, to the extent applicable. With respect to the rejection of the Engine Agreements or the
abandonment of the Engine Equipment pursuant to paragraph C, this paragraph D or paragraph F,
in any such case, to the extent necessary, the automatic stay of Section 362 of the Bankruptcy Code
is hereby modified to allow the Debtors and the Engine Counterparties to effectuate the provisions
of this Stipulation and to, as applicable, transfer, move, dispose or effect title transfer of the Engine
Equipment, including, without limitation, authorizing the application of any security deposit held
by any Engine Counterparty, to the extent applicable, against obligations of the Lessee Debtor
pursuant to the terms of the applicable Original Engine Agreements; provided that no Engine
Counterparty shall be permitted to assert any claims against the Debtors in any court other than
this Court (or as authorized by this Court).
E. During the Stipulation Period, the obligations of the Debtors set forth in
paragraph C and paragraph D above, Part III of Exhibit C hereof, the PBH Agreement, the
obligation of the Debtors to return any balance of the Deposit (as defined in Exhibit D) pursuant
to paragraph 4 of Exhibit D, and the Specified Obligations to the extent provided in paragraph F
below, shall (i) constitute administrative priority status expense obligations under the Bankruptcy
Code and (ii) satisfy any and all rights of the Engine Counterparties to administrative expense
status or priority in payment under any applicable provision of the Bankruptcy Code for any claims
arising out of or related to the Stipulation Period based on the obligations (both monetary or
performance based, or in each case lack thereof) of any Debtors in these chapter 11 cases pursuant
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to sections 361, 362, 363, 364, or 365 of the Bankruptcy Code and any similar provision under the
Cape Town Convention on International Interests in Mobile Equipment and the Protocol thereto
on Matters Specific to Aircraft Equipment, each as opened for signature on November 16, 2001,
that arise out of or relate to the Engine Agreements or Engine Equipment. Without limiting the
foregoing provisions and notwithstanding anything to the contrary herein, the Engine
Counterparties shall not assert and shall not be entitled to have allowed any claim against any
Debtors in these chapter 11 cases entitled to any administrative expense status or priority in
payment under any applicable provision of the Bankruptcy Code, or seek adequate protection
under any applicable provision of the Bankruptcy Code, in each case, for any diminution of value
with respect to their Engine Interests. This paragraph shall survive the termination of this
Stipulation.
F. Following any breach of this Stipulation or of the PBH Agreement by the
Debtors, the Engine Counterparties may assert a prepetition claim or administrative priority status
expense claim, as applicable, against the Debtors as permitted under the Bankruptcy Code for the
actual damages resulting from such breach; provided that, for any asserted breach of any of the
Debtors’ obligations under Part I of Exhibit C (the “Specified Obligation(s)”) to be entitled to
administrative priority status expense, (x) the Engine Counterparties shall provide the Lessee
Debtor written notice of any such breach, (y) the Debtors shall, as soon as reasonably practicably
but in any event within 30 days from receipt of such notice to remedy such breach or provide notice
in accordance with paragraph C above to reject the Engine Agreements or abandon the Engine
Equipment and (z) if such breach is remedied or the Debtors provide notice that the Engine
Agreements are rejected or the Engine Equipment is abandoned within such 30 day period, then
the Engine Counterparties shall not assert or otherwise be entitled to any administrative expense
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or priority in payment with respect to the damages suffered as a result of such breach of the
applicable Specified Obligations. In addition, the Engine Counterparties have and may assert
(subject to allowance of the amount of the claim by the Court) each of the following against the
Debtors solely as pre-petition (non-administrative priority status expense) claims: (i) any claim
that would be entitled to administrative expense or priority in payment but for this Stipulation or
the PBH Agreement, (ii) any claims for the difference between the rent and other obligations
payable or performable by the Debtors under the Original Engine Agreements during the
Stipulation Period as compared to the rent and other obligations payable or performable by the
Debtors under the Engine Agreements (as modified by the PBH Agreement and this Stipulation)
during the Stipulation Period and (iii) any claim pursuant to a breach of the Specified Obligations
that is uncured and results in the Engine Agreements being rejected or the Engine Equipment being
abandoned as set forth in paragraph C. The Engine Counterparties shall have until the later of (x)
30 days after the effective date of rejection of the Engine Agreements or the abandonment of the
Engine Equipment and (y) any claims bar date set by the Court to file a proof of claim for any
claims arising out of or relating to the rejection of the Engine Agreements or the abandonment of
the Engine Equipment pursuant to paragraph C or paragraph D, as applicable, above. The Debtors
and any representative of the Debtors’ estates reserve all defenses, rights and remedies with respect
to any claim asserted by any Engine Counterparty. This paragraph shall survive the termination of
this Stipulation.
G. The execution of this Stipulation and the PBH Agreement is not an
assumption or cure under any applicable provision of the Bankruptcy Code by the Debtors in
respect of any Engine Agreements between the Debtors, as applicable, and the Engine
Counterparties. The rights of the Debtors, as applicable, (i) to assume any Engine Agreements
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under Bankruptcy Code Section 365(b)(1), including, without limitation, ascertaining the cure
amounts and other obligations required with respect to such assumptions, (ii) to reinstate any
Engine Agreement or otherwise leave any Engine Counterparty unimpaired under Bankruptcy
Code Sections 1124, or (iii) to provide the “indubitable equivalent” under Bankruptcy Code
Section 1129(b)(2)(A)(iii), shall be based upon the Original Engine Agreements (ignoring in their
entirety any changes, revisions or modifications to the terms of the Engine Agreements effected
by this Stipulation and the PBH Agreement). In addition, the Engine Counterparties’ right to seek
adequate protection in the event of proposed debtor-in-possession financing by the Debtors that
seeks to prime any Engine Counterparty’s liens on property of the estates, or to interpose objections
to any sale by the Debtors of any property of the estates in which such Engine Counterparty has
an Engine Interest, are reserved, as are all of the Debtors’ rights, remedies and defenses with
respect to any such matters.
H. Except as provided in this Stipulation, all rights and defenses of the parties
are reserved and preserved. All rights and defenses of the parties provided in this Stipulation shall
survive the termination of the Stipulation.
I. This Stipulation shall be binding, nunc pro tunc, as of the Petition Date,
upon (i) the Debtors and any trustee or examiner that may be appointed in the pending chapter 11
cases, and their respective successors and assigns, (ii) the Engine Counterparties and their
respective successors and assigns and (with respect to those Engine Counterparties that are trusts
or trustees) trust beneficiaries who so direct or authorize the trusts or trustee of the trusts to enter
into this Stipulation and (iii) the trustee in the event that any of the above-captioned cases are
converted to cases under chapter 7 of the Bankruptcy Code.
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J. This Stipulation may be changed, modified, or otherwise altered in a writing
executed by the parties to this Stipulation. Oral modifications are not permitted.
K. This Stipulation and the PBH Agreement contain the entire agreement
between the parties with respect to the subject matter hereof, and may only be modified in writing,
signed by the parties or their duly appointed agents. In the event of any conflict between any
provision of any Engine Agreement and any provision of the PBH Agreement, any schedule
thereto or this Stipulation, the provisions of the PBH Agreement, such schedule or this Stipulation,
as applicable, shall control. In the event of any conflict between this Stipulation and the PBH
Agreement, this Stipulation shall control. In the event of any conflict between this Stipulation and
any other Court order governing the assumption or rejection of the Engine Agreements (including,
without limitation, any order granting the Debtors’ Motion for Entry of an Order (I) Authorizing
and Approving Procedures to Reject or Assume Executory Contracts and Unexpired Leases and
(II) Granting Related Relief [ECF no. 261]), this Stipulation shall control. If the scheduled lease
term of the Engine Agreements expires during the Stipulation Period, such Engine Agreements are
deemed extended for the duration of the Stipulation Period on the same terms as in effect under
such Engine Agreements immediately prior to such expiry.
L. This Stipulation may be executed in one or more counterparts, by facsimile,
electronic transmission or otherwise, each of which shall be deemed an original, and all of which,
when taken together, shall constitute one and the same document.
M. This Stipulation shall be effective immediately upon approval by the Court.
The Court shall retain jurisdiction for purposes of resolving any issues relating to this Stipulation
or the PBH Agreement.
SO ORDERED
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Stipulated and agreed to by:
Dated: New York, New York October 28, 2020
AVIANCA HOLDINGS S.A., et al., debtors and debtors-in-possession
By: /s/ Gregory Bray
Dennis F. Dunne Evan R. Fleck MILBANK LLP 55 Hudson Yards New York, New York 10001 Telephone: (212) 530-5000 Facsimile: (212) 530-5219
-and-
Gregory Bray MILBANK LLP 2029 Century Park East, 33rd Floor Los Angeles, CA 90067 Telephone: (424) 386-4000 Facsimile: (213) 629-5063
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ROLLS-ROYCE & PARTNERS FINANCE LIMITED
By:
Name:
Title:
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RRPF ENGINE LEASING LIMITED, as Lessor
By:
Name:
Title:
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Exhibit A-1
EXHIBIT A
Engine Counterparties
1. Rolls-Royce & Partners Finance Limited
2. RRPF Engine Leasing Limited, as Lessor
Engine Equipment
1. One (1) IAE International Aero Engines AG model V2500-A5 aircraft engine bearing manufacturer’s serial number V12103, including transportation stand and MVP bag substantially similar as provided under the Engine Agreements.
Engine Agreements
A. Master Engine Lease Agreement dated April 27, 2005 between RRPF Engine Leasing Limited, as lessor, Rolls-Royce & Partners Finance Limited and TACA International Airlines, S.A., as lessee.
B. Lease Agreement – New V2500-A5 Engine No. 1 dated April 27, 2005 between RRPF Engine Leasing Limited, as lessor, Rolls-Royce & Partners Finance Limited and TACA International Airlines, S.A., as lessee, as extended, amended and supplemented from time to time.
C. Supplemental Rent Letter dated January 15, 2018 between RRPF Engine Leasing Limited, as
lessor, Rolls-Royce & Partners Finance Limited and TACA International Airlines, S.A., as lessee.
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Exhibit B-1
EXHIBIT B
[Redacted]
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Exhibit C-1
EXHIBIT C
[Redacted]
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Exhibit D-1
EXHIBIT D
[Redacted]
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44810.00035
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------------x :
In re: : :
AVIANCA HOLDINGS S.A., et al. : :
Debtors.1 : :
------------------------------------------------------------------x
Chapter 11
Case No. 20-11133 (MG)
(Jointly Administered)
FIRST STIPULATION AND ORDER BETWEEN DEBTORS AND ENGINE COUNTERPARTIES CONCERNING AN AIRCRAFT ENGINE
This stipulation (the “Stipulation”) is entered into as of October 27, 2020, by and
between Aerovías del Continente Americano S.A. Avianca (the “Lessee Debtor” and together with
the above-captioned parties, the “Debtors”) and each of the parties set forth in Exhibit A hereto as
engine counterparties (the “Engine Counterparties”) with respect to the engine lease (the “Lease”)
and related documents as each relates to the Engine Equipment (as defined below) set forth in
Exhibit A (collectively with the Lease, the “Engine Agreements”)2 in respect of the engine and
1 The Debtors in these chapter 11 cases, and each Debtor’s federal tax identification number (to the extent applicable), are as follows: Avianca Holdings S.A. (N/A); Aero Transporte de Carga Unión, S.A. de C.V. (N/A); Aeroinversiones de Honduras, S.A. (N/A); Aerovías del Continente Americano S.A. Avianca (N/A); Airlease Holdings One Ltd. (N/A); America Central (Canada) Corp. (00-1071563); America Central Corp. (65-0444665); AV International Holdco S.A. (N/A); AV International Holdings S.A. (N/A); AV International Investments S.A. (N/A); AV International Ventures S.A. (N/A); AV Investments One Colombia S.A.S. (N/A); AV Investments Two Colombia S.A.S. (N/A); AV Taca International Holdco S.A. (N/A); Avianca Costa Rica S.A. (N/A); Avianca Leasing, LLC (47-2628716); Avianca, Inc. (13-1868573); Avianca-Ecuador S.A. (N/A); Aviaservicios, S.A. (N/A); Aviateca, S.A. (N/A); Avifreight Holding Mexico, S.A.P.I. de C.V. (N/A); C.R. Int’l Enterprises, Inc. (59-2240957); Grupo Taca Holdings Limited (N/A); International Trade Marks Agency Inc. (N/A); Inversiones del Caribe, S.A. (N/A); Isleña de Inversiones, S.A. de C.V. (N/A); Latin Airways Corp. (N/A); Latin Logistics, LLC (41-2187926); Nicaraguense de Aviación, Sociedad Anónima (Nica, S.A.) (N/A); Regional Express Américas S.A.S. (N/A); Ronair N.V. (N/A); Servicio Terrestre, Aereo y Rampa S.A. (N/A); Servicios Aeroportuarios Integrados SAI S.A.S. (92-4006439); Taca de Honduras, S.A. de C.V. (N/A); Taca de México, S.A. (N/A); Taca International Airlines S.A. (N/A); Taca S.A. (N/A); Tampa Cargo S.A.S. (N/A); Technical and Training Services, S.A. de C.V. (N/A). The Debtors’ principal offices are located at Avenida Calle 26 # 59 – 15 Bogotá, Colombia.
2 “Engine Agreements” refers to the form of such agreements as in effect at any applicable time. The form of the Engine Agreements in effect immediately prior to the Petition Date are referred to herein as the “Original Engine Agreements”).
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engine stand listed in Exhibit A hereto, along with the related documents and records (including
maintenance records) with respect to the Lease (collectively, the “Engine Equipment”);
WHEREAS, on May 10, 2020 (the “Petition Date”), the Debtors filed voluntary
petitions under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”) with the
United States Bankruptcy Court for the Southern District of New York (the “Court”);
WHEREAS, this Stipulation is effective from the Petition Date through the earliest
to occur of (i) the date the Engine Equipment is returned or made available for return, as applicable,
to the Engine Counterparties as required pursuant to paragraph C or paragraph D (as applicable),
(ii) the date of the entry of an order of the Court approving the assumption of the Original Engine
Agreements with respect to the Engine Equipment pursuant to section 365 of the Bankruptcy Code,
(iii) the effective date of a plan of reorganization for the Debtors confirmed by the Court, (iv) the
date of an order converting the Lessee Debtor’s chapter 11 case to a case under chapter 7 of the
Bankruptcy Code, (v) the date the Lessee Debtor announces that it has permanently discontinued
all scheduled passenger service, (vi) the date of substantial consummation of a sale of all or
substantially all assets of the Debtors and (vii) such other date as the Engine Counterparties and
the Debtors may agree in writing with respect to the Engine Equipment (such period, the
“Stipulation Period”);
WHEREAS, the entity identified as such in Exhibit A is the lessor of the Engine
Equipment and related items;
WHEREAS, the Engine Counterparties assert rights and interests (collectively, the
“Engine Interests” and each an “Engine Interest”) in the Engine Equipment;
WHEREAS, the Debtors and the Engine Counterparties do hereby STIPULATE
and AGREE as follows:
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A. The Debtors represent and warrant that as of the date of the execution of
this Stipulation and at the time the Engine Agreements were entered into by and between the
Lessee Debtor and the Engine Counterparties, the Lessee Debtor did not hold an air carrier
operating certificate issued pursuant to chapter 447 of title 49, United States Code and, accordingly
for that reason, Section 1110 of the Bankruptcy Code is not applicable to the Engine Equipment.
B. During the Stipulation Period the Debtors shall, at the Debtors’ expense
(except as otherwise noted herein), perform the covenants pursuant to the terms set forth on Exhibit
C and pay for any usage of the Engine Equipment during the Stipulation Period on a power by the
hour basis pursuant to the terms attached hereto as Exhibit B (as modified to reflect the existing
transaction-specific details, the “PBH Agreement”), and the PBH Agreement shall be executed
and delivered by the parties thereto promptly following the entry of an order approving this
Stipulation.
C. The Debtors may, subject to any requirement by the Court that a further
order or notice is necessary, at any time upon 15 days’ notice to the Engine Counterparties, reject
the Engine Agreements or abandon the Engine Equipment. If the Engine Counterparties have
complied with the conditions set forth in paragraphs 1 and 2 of Exhibit D, then, at the Engine
Counterparties’ expense, the Debtors shall as soon as reasonably practicable return the Engine
Equipment to the Engine Counterparties at a location in the contiguous United States designated
by the Engine Counterparties or such other location mutually acceptable to the Debtors and the
Engine Counterparties. If, within 20 days of the Debtors’ notice of rejection or abandonment, the
Engine Counterparties have (I) not complied with the conditions set forth in paragraphs 1 and 2 of
Exhibit D, or (II) the Engine Counterparties fail to otherwise reasonably cooperate with the Lessee
Debtor in accepting the return of the Engine Equipment during such period, then the Debtors shall
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4
make the Engine Equipment available for return in its then-current location. In any such case, the
Engine Equipment will be returned or made available, as applicable, in the Engine Equipment’s
then “as is, where is” condition, and (x) upon the conclusion of the Engine Shipment (as defined
in Exhibit D) of the Engine Equipment (but subject to the second following sentence) or (y) after
5 days of the Engine Equipment being made available for return, as the case may be, all risk of
damage, injury, loss and liability of the Engine Equipment shall pass to the Engine Counterparties.
Immediately following the Engine Shipment (as defined in Exhibit D) of the Engine Equipment
or the Engine Equipment being made available for return, as applicable, the Debtors shall have no
further obligations whatsoever with respect to the Engine Equipment except for any reasonable
cooperation pursuant to subclauses (i) and (ii) of this paragraph C below; provided, however, that
this sentence shall not affect or impair the rights of the Engine Counterparties to assert claims as
provided in this Stipulation. Notwithstanding anything to the contrary in this Stipulation or the
PBH Agreement, other than as a result of the Debtors’ gross negligence or willful misconduct, all
risk of damage, injury, loss and liability arising from or in connection with any Engine Shipment
(as defined in Exhibit D), to the extent not covered by insurance maintained by the Debtors, shall
be borne by the Engine Counterparties. In connection with the return of the Engine Equipment
pursuant to this paragraph C, the Debtors shall, at the Engine Counterparties’ expense, (i) as soon
as reasonably practicable, deliver to the Engine Counterparties all technical records and documents
relating to the Engine Equipment that are in the Debtors’ possession or control and (ii) cooperate
in taking all actions (including filings) and signing all documents reasonably required by the
Engine Counterparties with regard to the return of the Engine Equipment to the Engine
Counterparties, the transfer of title, and its export from the country of previous importation, in
each case, to the extent applicable.
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D. The Engine Counterparties may notify the Debtors of their desire to
terminate the Stipulation Period as to the Engine Equipment at any time upon 45 days’ notice of
termination to the Debtors. In addition, within 10 days of receipt by the Engine Counterparties of
any Mandatory Order Notice (as defined in Exhibit C) with respect to the Engine Equipment, the
Engine Counterparties may notify the Debtors of their desire to terminate the Stipulation Period
with respect to the Engine Equipment. In the case of any such notice of termination under this
paragraph D to the Debtors, the Debtors, subject to any requirement by the Court that a further
order or notice is necessary, shall promptly reject the Engine Agreements or abandon the Engine
Equipment and, in either such case, the Debtors shall, at the Engine Counterparties’ expense, take
all actions subject to the conditions as are set forth in paragraph C with respect to the Engine
Equipment, to the extent applicable. With respect to the rejection of the Engine Agreements or the
abandonment of the Engine Equipment pursuant to paragraph C, this paragraph D or paragraph F,
in any such case, to the extent necessary, the automatic stay of Section 362 of the Bankruptcy Code
is hereby modified to allow the Debtors and the Engine Counterparties to effectuate the provisions
of this Stipulation and to, as applicable, transfer, move, dispose or effect title transfer of the Engine
Equipment, including, without limitation, authorizing the application of any security deposit and
maintenance reserves held by any Engine Counterparty, to the extent applicable, against
obligations of the Lessee Debtor pursuant to the terms of the applicable Original Engine
Agreements; provided that no Engine Counterparty shall be permitted to assert any claims against
the Debtors in any court other than this Court (or as authorized by this Court).
E. During the Stipulation Period, the obligations of the Debtors set forth in
paragraph C and paragraph D above, Part III of Exhibit C hereof, the PBH Agreement, the
obligation of the Debtors to return any balance of the Deposit (as defined in Exhibit D) pursuant
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6
to paragraph 4 of Exhibit D, and the Specified Obligations to the extent provided in paragraph F
below, shall (i) constitute administrative priority status expense obligations under the Bankruptcy
Code and (ii) satisfy any and all rights of the Engine Counterparties to administrative expense
status or priority in payment under any applicable provision of the Bankruptcy Code for any claims
arising out of or related to the Stipulation Period based on the obligations (both monetary or
performance based, or in each case lack thereof) of any Debtors in these chapter 11 cases pursuant
to sections 361, 362, 363, 364, or 365 of the Bankruptcy Code and any similar provision under the
Cape Town Convention on International Interests in Mobile Equipment and the Protocol thereto
on Matters Specific to Aircraft Equipment, each as opened for signature on November 16, 2001,
that arise out of or relate to the Engine Agreements or Engine Equipment. Without limiting the
foregoing provisions and notwithstanding anything to the contrary herein, the Engine
Counterparties shall not assert and shall not be entitled to have allowed any claim against any
Debtors in these chapter 11 cases entitled to any administrative expense status or priority in
payment under any applicable provision of the Bankruptcy Code, or seek adequate protection
under any applicable provision of the Bankruptcy Code, in each case, for any diminution of value
with respect to their Engine Interests. This paragraph shall survive the termination of this
Stipulation.
F. Following any breach of this Stipulation or of the PBH Agreement by the
Debtors, the Engine Counterparties may assert a prepetition claim or administrative priority status
expense claim, as applicable, against the Debtors as permitted under the Bankruptcy Code for the
actual damages resulting from such breach; provided that, for any asserted breach of any of the
Debtors’ obligations under Part I of Exhibit C (the “Specified Obligation(s)”) to be entitled to
administrative priority status expense, (x) the Engine Counterparties shall provide the Lessee
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7
Debtor written notice of any such breach, (y) the Debtors shall have 30 days from receipt of such
notice to remedy such breach or provide notice in accordance with paragraph C above to reject the
Engine Agreements or abandon the Engine Equipment and (z) if such breach is remedied or the
Debtors provide notice that the Engine Agreements are rejected or the Engine Equipment is
abandoned within such 30 day period, then the Engine Counterparties shall not assert or otherwise
be entitled to any administrative expense or priority in payment with respect to such breach of the
applicable Specified Obligations. In addition, the Engine Counterparties have and may assert
(subject to allowance of the amount of the claim by the Court) each of the following against the
Debtors solely as pre-petition (non-administrative priority status expense) claims: (i) any claim
that would be entitled to administrative expense or priority in payment but for this Stipulation or
the PBH Agreement, (ii) any claims for the difference between the rent and maintenance payments
or other obligations payable or performable by the Debtors under the Original Engine Agreements
during the Stipulation Period as compared to the rent and maintenance payments or other
obligations payable or performable by the Debtors under the Engine Agreements (as modified by
the PBH Agreement and this Stipulation) during the Stipulation Period and (iii) any claim pursuant
to a breach of the Specified Obligations that is uncured and results in the Engine Agreements being
rejected or the Engine Equipment being abandoned as set forth in paragraph C. The Engine
Counterparties shall have until the later of (x) 30 days after the effective date of rejection of the
Engine Agreements or the abandonment of the Engine Equipment and (y) any claims bar date set
by the Court to file a proof of claim for any claims arising out of or relating to the rejection of the
Engine Agreements or the abandonment of the Engine Equipment pursuant to paragraph C or
paragraph D, as applicable, above. The Debtors and any representative of the Debtors’ estates
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8
reserve all defenses, rights and remedies with respect to any claim asserted by any Engine
Counterparty. This paragraph shall survive the termination of this Stipulation.
G. The execution of this Stipulation and the PBH Agreement is not an
assumption or cure under any applicable provision of the Bankruptcy Code by the Debtors in
respect of any Engine Agreements between the Debtors, as applicable, and the Engine
Counterparties. The rights of the Debtors, as applicable, (i) to assume any Engine Agreements
under Bankruptcy Code Section 365(b)(1), including, without limitation, ascertaining the cure
amounts and other obligations required with respect to such assumptions, (ii) to reinstate any
Engine Agreement with respect to the Engine Equipment or otherwise leave any Engine
Counterparty unimpaired under Bankruptcy Code Sections 1124, or (iii) to provide the
“indubitable equivalent” under Bankruptcy Code Section 1129(b)(2)(A)(iii), shall be based upon
the Original Engine Agreements (ignoring in their entirety any changes, revisions or modifications
to the terms of the Engine Agreements effected by this Stipulation and the PBH Agreement). In
addition, the Engine Counterparties’ right to seek adequate protection in the event of proposed
debtor-in-possession financing by the Debtors that seeks to prime any Engine Counterparty’s liens
on property of the estates, or to interpose objections to any sale by the Debtors of any property of
the estates in which such Engine Counterparty has an Engine Interest, are reserved, as are all of
the Debtors’ rights, remedies and defenses with respect to any such matters.
H. Except as provided in this Stipulation, all rights and defenses of the parties
are reserved and preserved. All rights and defenses of the parties provided in this Stipulation shall
survive the termination of the Stipulation.
I. This Stipulation shall be binding, nunc pro tunc, as of the Petition Date,
upon (i) the Debtors and any trustee or examiner that may be appointed in the pending chapter 11
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9
cases, and their respective successors and assigns, (ii) the Engine Counterparties and their
respective successors and assigns and (with respect to those Engine Counterparties that are trusts
or trustees) trust beneficiaries who so direct or authorize the trusts or trustee of the trusts to enter
into this Stipulation and (iii) the trustee in the event that any of the above-captioned cases are
converted to cases under chapter 7 of the Bankruptcy Code.
J. This Stipulation may be changed, modified, or otherwise altered in a writing
executed by the parties to this Stipulation. Oral modifications are not permitted.
K. This Stipulation and the PBH Agreement contain the entire agreement
between the parties with respect to the subject matter hereof, and may only be modified in writing,
signed by the parties or their duly appointed agents. In the event of any conflict between any
provision of any Engine Agreement and any provision of the PBH Agreement, any schedule
thereto or this Stipulation, the provisions of the PBH Agreement, such schedule or this Stipulation,
as applicable, shall control. In the event of any conflict between this Stipulation and the PBH
Agreement, this Stipulation shall control. In the event of any conflict between this Stipulation and
any other Court order governing the assumption or rejection of the Engine Agreements (including,
without limitation, any order granting the Debtors’ Motion for Entry of an Order (I) Authorizing
and Approving Procedures to Reject or Assume Executory Contracts and Unexpired Leases and
(II) Granting Related Relief [ECF no. 261]), this Stipulation shall control. For the avoidance of
doubt, this Stipulation is with respect to the Engine Equipment and the Lease set forth in Exhibit
A and any other aircraft engine leases and other agreements between the parties, and such parties’
rights and obligations with respect thereto, are unaffected by this Stipulation including, without
limitation, any such aircraft engine subject to an engine lease incorporating the terms of any master
lease agreement or general terms agreement.
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10
L. This Stipulation may be executed in one or more counterparts, by facsimile,
electronic transmission or otherwise, each of which shall be deemed an original, and all of which,
when taken together, shall constitute one and the same document.
M. This Stipulation shall be effective immediately upon approval by the Court.
The Court shall retain jurisdiction for purposes of resolving any issues relating to this Stipulation
or the PBH Agreement.
SO ORDERED
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Stipulated and agreed to by:
Dated: New York, New York October 27, 2020
AVIANCA HOLDINGS S.A., et al., debtors and debtors-in-possession
By: /s/ Gregory Bray
Dennis F. Dunne Evan R. Fleck MILBANK LLP 55 Hudson Yards New York, New York 10001 Telephone: (212) 530-5000 Facsimile: (212) 530-5219
-and-
Gregory Bray MILBANK LLP 2029 Century Park East, 33rd Floor Los Angeles, CA 90067 Telephone: (424) 386-4000 Facsimile: (213) 629-5063
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WELLS FARGO TRUST COMPANY, NATIONAL ASSOCIATION, not in its individual capacity but solely as owner trustee, as Lessor
By:
Name: Jessica %tamps
Title: vice President
WELLS FARGO TRUST COMPANY, NATIONAL ASSOCIATION, not in its individual capacity but solely as owner trustee, as Lessor
By:
Name:
Title:
Jessica Wuomos
vine Res/dent
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D. c„/
WILLIS MITSUI & CO ENGINE SUPPORTLIMITED, as Beneficiary
By:
Name:
Title: Director
Daniel Coulcher
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By:
Name:
Title:
Dean M. Poulakidas Senior Vice President
WILLIS LEASE FINANCE CORPORATION, as Servicer
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Exhibit A-1
EXHIBIT A
Engine Counterparties
1. Wells Fargo Trust Company, National Association (formerly known as Wells Fargo BankNorthwest, National Association), not in its individual capacity but solely as owner trustee, asLessor
2. Willis Mitsui & Co Engine Support Limited, as Beneficiary
3. Willis Lease Finance Corporation, as Servicer
Engine Equipment
One (1) CFM International model Leap-1A35 aircraft engine bearing manufacturer’s serial number 598462 and one engine stand with serial number OS270230.
Engine Agreements
A. General Terms Engine Lease Agreement dated as of March 12, 2018 between Wells FargoTrust Company, National Association (formerly known as Wells Fargo Bank Northwest,National Association), not in its individual capacity but solely as Owner Trustee, and Aerovíasdel Continente Americano S.A. Avianca, as lessee, as amended and supplemented from timeto time.
B. Aircraft Engine Lease Agreement dated as of March 12, 2018 by and between Wells FargoTrust Company, National Association (formerly known as Wells Fargo Bank Northwest,National Association), not in its individual capacity but solely as Owner Trustee, as lessor, forthe benefit of Willis Mitsui & Co Engine Support Limited, and Aerovías del ContinenteAmericano S.A. Avianca, as lessee, as amended and supplemented from time to time.
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Exhibit B-1
EXHIBIT B
Redacted
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Exhibit C-1
EXHIBIT C
Redacted
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Exhibit D-1
EXHIBIT D
Redacted
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