SEP 29. S.P.A., SAN PAOLO LEASINT S.P,A. and : theparties INTESA LEASING S.P.A.,

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1 lned ON SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X : IndexNo.: NORTH AMERICAN AIRLINES, INC., : Date Filed: September 29,2009 Plaintiff, : Plaintiff designates New York "against- : County as the place of trial WILMINGTON TRUST COMPANY, as Owner Trustee, pursuant to the Trust Agreement [North American Airlines Inc Trust No dated as of : SUMMONS 0@ : The basis of venue is by December 1,2006; ALE-ONE, LIMITED, LOCAT : written agreetriee E D '1 S.P.A., SAN PAOLO LEASINT S.P,A. and : theparties INTESA LEASING S.P.A., Defendants. SEP 29 You are hereby summoned to answer the complaint in this action and to serve a copy of your answer, or if the complaint is not served with the summons, to serve a notice of appearance, on the Plaintiffs attorneys within 20 days after the service of this summons, exclusive of the day of service (or within 30 days afier the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. Dated: New York, New York September 29,2009 TROUTMAN SANDERS LLP ' - J /%$hew J. Aaronson, Esq. The Chrysler Building 405 Lexington Avenue New York, New York (212) Attorneys for Plaintiff Supreme Court Records OnLine Library - page 1 of 16

2 Defendants Address : Wilrnington Trust Company Rodney Square North North Market Street Wilmington, DE Ale-One Limited 6 Northbrook Road Dublin 6 Ireland Locat S.p.A Viale Bianca Maria Milano Italy San Paolo Leasint S.p.A. Via Col Moschin, Milano Italy Intesa Leasing S.p.A Via Col Moschin, Milano Italy -2- Supreme Court Records OnLine Library - page 2 of 16

3 NORTH AMERICAN AIRLINES, INC., Plaintiff, Index No.: -against- Date Filed: September 29,2009 WILMINGTON TRUST COMPANY, as Owner Trustee, pursuant to the Trust Agreement [North American Airlines Inc Trust No dated as of December 1,2006; ALE-ONE, LIMITED, LOCAT S.P.A., SAN PAOLO LEASTNT S.P.A. and lntesa LEASING S.P.A., : : COMPLAINT. <..I..a Defendants. Plaintiff North American Airlines, Inc., ( Plaintiff or NAA ), by its attorneys Troutman Sanders LLP, for its complaint, alleges: NATURE OF THE ACTION 1. This is an action resulting Erom the breach by Wilmington Trust Company, as Owner Trustee, of an aircraft lease agreement, and the breach of a guaranty contract by Ale- One, Limited, Locat S.p.A., San Paolo Leasint S,p.A. and Intesa Leasing S.p.A., and the resulting damages to NAA. THE PARTIES 2. NAA is a corporation organized under the laws of the State of Delaware, with its principal place of business located in Jamaica, New York. Supreme Court Records OnLine Library - page 3 of 16

4 3. Upon information and belief, defendant Wilmington Trust Company ( WTC ) is a Delaware banking corporation organized and existing under the laws of Delaware with its principal place of business located at Rodney Square North, 1100 North Market Street, Wilmington, Delaware. 4. Upon information and belief, defendant Ale-One, Limited ( ALE ) is an Irish company with its principal place of business located in Dublin, Ireland. 5, Upon information and belief, defendant Locat S.p.A. ( Locat ) is an Italian company with its principal place of business located in Milan, Italy. 6. Upon information and belief, defendant San Paolo Leasint, S.p.A. ( San Paolo ) is an Italian company with its principal place of business located in Milan, Italy* 7. Upon information and belief, defendant Intesa Leasing, S.p.A. ( Intesa ) is an Italian company with its principal place of business located in Milan, Italy. JURISDICTION AND VENUE 8. Jurisdiction over defendants and venue are proper in this Court pursuant to, &r &, CPLR 301 and 302 and the written consent to the jurisdiction of this Court contained in the agreements between and among the parties. FACTUAL BACKGROUND 9. NAA is a United States air carrier headquartered at John IF. Kennedy International Airport. NAA operates passenger charter flights on Boeing 757 and 767 aircraft serving the U. S. military, tour operators, incentive groups, government agencies, sports teams, corporate groups, movie crews, and entertainment tours. -2- Supreme Court Records OnLine Library - page 4 of 16

5 10. Pursuant to a Trust Agreement between ALE, as Trustor, and WTC, as Owner Trustee, dated as of December 1, 2006, WTC agreed to act as Owner Trustee in connection with NAA s lease of a Boeing ER aircraft from ALE (the Trust Agreement ). 11. Upon information and belief, Locat, San Paolo and Intesa are three large commercial leasing companies in Italy. The Lease Agreement 12. On or about December 1, 2006, NAA, as Lessee, entered into an aircraft lease agreement with WTC, as Owner Trustee and Lessor, (the Lease Agreement ) whereby WTC agreed to lease and NAA agreed to accept on lease one Boeing model ER aircraft, bearing manufacturer s serial number (the Airframe ) and equipped with two GE CF6-80C2B7F engines bearing manufacturer s serial numbers (the 351 Engine ) and (the 352 Engine ) (collectively, the Engines ), as well as all Parts and Aircraft Documents, as those terms are defined in the Lease Agreement (collectively, with the Airframe, Engines, Parts and Aircraft Documents, the Aircraft ). 13. The term of the Lease Agreement runs through November 30,2009. At the end of the term, NAA is required to redeliver the Aircraft to WTC. 14. The Lease Agreement was thereafter amended by Amendment No. I, dated I February 19, In addition to its obligation to make Basic Rent Payments under the Lease Agreement, pursuant to Section 4.3(b) of the Lease Agreement, NAA is required to pay Maintenance Reserve Payments each month. 16. The amount of each monthly Maintenance Reserve Payment is determined based upon a formula which takes into account the utilization of the Aircraft in the preceding month. -3- Supreme Court Records OnLine Library - page 5 of 16

6 17. The Maintenance Reserve Payments were to be held by WTC in Maintenance Reserve sub-accounts ( M/R Sub-Accounts ) for the reimbursement of the costs incurred by NAA in connection with certain maintenance events with respect to the Aircraft. Such events are defined as Items of Heavy Maintenance, and include, as relevant here, off wing maintenance which consists of a shop visit for full performance restoration to restore the Engine performance of any Engine ( Full Performance Restoration ). part: 18, Specifically, Section 4.3(b)(ii)(A) of the Lease Agreement provides, in pertinent In the case of the first performance afier the Delivery Date of each Item of Heavy Maintenance the following provisions shall apply: Provided that no Potential Default or Event of Default has occurred and is continuing, and provided further that Lessee shall provide Lessor prior to the heavy maintenance of each Item of Heavy Maintenance with the scope of work of such intended heavy maintenance, Lessor shall pay to Lessee, within 30 days of the Lessee s written request to Lessor (together with supporting documentation evidencing the scope of work of maintenance performed and the amount of the costs and expenses involved all in form satisfactory to Lessor acting reasonably), such amounts as are equal to * * * (2) the actual costs incurred and paid by Lessee in respect of any off wing maintenance (as hereinafter defined) which consists of a shop visit for full performance restoration to restore the Engine performance (Le. EGT margin) of any Engine in accordance with the Engine Manufacturer s Engine Shop Manual for engines like the Engine, multiplied by a fraction, the numerator of which is Flight Hours elapsed since last Engine Shop Visit of such Engine prior to the Delivery Date and up to the Delivery Date and the denominator of which is the numerator plus Flight Hours elapsed since the Delivery Date and up to the date such Engine Shop Visit is performed. * * * For the avoidance of doubt, the amounts payable by Lessor under clauses (1) through (5) above shall be paid by the Lessor without any deduction from the M/R Sub-Accounts. -4- Supreme Court Records OnLine Library - page 6 of 16

7 Provided that no Potential Default or Event of Default has occurred and is continuing and subject to paragraph (iv) below, with respect to each Item of Heavy Maintenance Lessor shall also pay to Lessee (at the same time that Lessor is to make the payment pursuant to the preceding paragraph) an additional amount equal to the difference between (x) the actual cost of the first performance after the Delivery Date of such Item of Heavy Maintenance and (y) the amount paid by Lessor to Lessee with respect to such Item of Heavy Maintenance pursuant to the preceding paragraph (which amount shall be deducted from the amount previously credited to the relevant M/R sub-account). ALE s Guarantv Of WTC s Payment of the Maintenance Reserves 19. Contemporaneously with the execution of the Lease Agreement, NAA, as Lessee, and ALE, as Trustor, entered into an Aircraft Participation Agreement, dated as of December 1, 2006 (the Participation Agreement ). 20. As a material inducement for NAA to enter into the Lease Agreement and pay the Maintenance Reserve Payments, the Participation Agreement contains a guaranty whereby ALE guaranteed, inter alia, WTC s performance of its obligation to pay the Maintenance Reserves to NAA pursuant to the terms of the Lease Agreement. 21. Specifically, Section 2 of the Participation Agreement provides: Trustor hereby guarantees the performance by the Lessor of its obligations regarding the payment of the Security Deposit and the Maintenance Reserves to the Lessee in accordance with the terms of the Lease. Trustor also agrees to perform any obligations expressly set forth in the Lease as obligations of the Beneficiary. ALE s Assignment of its Rights and Obligations to Locat, San Paolo and Xntesa 22. Upon information and belief, pursuant to a Deed of Assignment, dated on or about April 7, 2007, ALE assigned all of its rights and obligations under the Trust Agreement, -5- Supreme Court Records OnLine Library - page 7 of 16

8 including its interest in the Trust Estate to Locat, San Paolo and Intesa. 23. While NAA has not been provided with a copy of the Deed of Assignment, pursuant to Section 8.1 of the Trust Agreement, [alny assignment, conveyance of other transfer by the Trustor of its right, title and interest in and to the Trust Estate or the Trust Agreement shall be effected by a written agreement... which shall provide that such transferee thereby becomes a party to, and the beneficiary of, th[e] Trust Agreement and a Trustor for all purposes hereof and that such transferee assumes all of the obligations of its transferor under this Trust Agreement. 24. In addition, Section 2 of the Participation Agreement provides that Trustor shall have the right to assign or transfer, or grant a security interest in, its interest in the Trust Agreement and the Trust Estate (as defined in the Trust Agreement) to any Person or to any Financier. Upon any such assignment or transfer by Trustor (the Old Trustor ) as above provided (other than an assignment for security purposes), the assignee or transferee (the New Trustor ) shall be deemed the Trustor for all purposes hereof and of the other Operative Documents and each reference herein to the Trustor shall thereafter be deemed for all purposes to be the New Trustor and the Old Trustor shall be relieved of all obligations of the Trustor under the Operative Documents to the extent the same have been assumed by the New Trustor. WTC s Breach of the Lease Agreement 25. On or about November 8,2008 NAA removed the 351 Engine from the Aircraft after a first stage HPT rotor blade failed and caused damage to the 351 Engine. 26. The 351 Engine was thereafter sent to GE Caledonian, Limited ( GECAL ), a repair facility in Scotland. GECAL is an affiliate of GE, the manufacturer of the 351 Engine, 27. Based upon its inspection and the level of damage to the 351 Engine, GECAL concluded that a Full Performance Restoration was required in accordance with the GE 1 The Trust Agreement defines the Trust Estate as all estate, right, title and interest of the Owner Trustee in and to the Aircraft and the Lease, including without limitation, all amounts of Basic Rent and Supplemental Rent Supreme Court Records OnLine Library - page 8 of 16

9 Workscope Planning Guide. In accordance with Section 4.3(b)(ii)(A), the scope of work to be performed was provided to WTC by NAA. 28. GECAL performed a Full Performance Restoration on the 351 Engine and confirmed that the work was performed in accordance with the GE Workscope Planning Guide. The 351 Engine was returned to NAA on or about February 6, GECAL issued NAA an invoice in the amount of $2,647, for the work performed on the 351 Engine, which NAA has paid in full. 30. Shortly after the Full Performance Restoration on the 351 Engine was completed, NAA was advised that WTC would not reimburse NAA for the costs it incurred in connection therewith. 31. WTC has never provided NAA with a valid basis for its refusal to reimburse NAA for the costs it incurred in connection with the Full Performance Restoration of the 351 Engine No Potential Event of Default or Event of Default has occurred or is continuing. On September 3, 2009, NAA issued a written request for reimbursement from WTC in the amount of $2,647,501-72, representing the amount due to NAA pursuant to Section 4.3(b)(ii)(A) of the Lease Agreement in connection with the Full Performance Restoration by GECAL on the 351 Engine. (the Request ). 34. NAA s written request for reimbursement was accompanied by the supporting documentation required pursuant to Section 4,3(b)(ii)(A) of the Lease Agreement. 35. WTC has refused to pay NAA the amounts due under Section 4,3(b)(ii)(A). 36. No valid basis exists for WTC s refusal to pay the amounts due to NAA. -7- Supreme Court Records OnLine Library - page 9 of 16

10 37. WTC, ALE, Locat, San Paolo and Intesa have failed to contest the amounts due under Section 4.3(b)(ii)(A) in good faith, FIRST CAUSE OF ACTION (Breach of Lease Agreement against WTC) 38. Plaintiff repeats and realleges the allegations of paragraphs 1 through 39 hereof as if fully set forth herein NAA has at all times complied with the terms of the Lease Agreement. WTC has failed to pay NAA the amount due pursuant to Section 4,3(b)(ii)(A) of the Lease Agreement in connection with the Full Performance Restoration by GECAL on the 351 Engine. 41. By reason of the foregoing, NAA has been damaged in an amount to be determined at trial, but in no event less than $2,647,501.72, plus interest. SECOND CAUSE OF ACTION (Breach of the Covenant of Good Faith and Fair Dealing against WTC) 42. Plaintiff repeats and realleges the allegations of paragraphs 1 through 39 hereof as if fully set forth herein. 43. The Lease Agreement contains an implied covenant of good faith and fair dealing. Pursuant thereto, WTC is obligated to exercise good faith so as to neither frustrate the purposes of the Lease Agreement, nor deprive NAA of its benefits under the Lease Agreement. 44. By refusing to pay NAA the amount due pursuant to Section 4.3@)(ii)(A) of the Lease Agreement in connection with the Full Performance Restoration by GECAL on the 351 Engine without justification, WTC has breached the implied covenant of good faith and fair dealing. Supreme Court Records OnLine Library - page 10 of 16

11 45. By reason of the foregoing, NAA has been damaged in an amount to be determined at trial, but in no event less than $2,647,501.72, plus interest. THIRD CAUSE OF ACTION (Unjust Enrichment against WTC) 46. Plaintiff repeats and realleges the allegations of paragraphs 1 through 39 hereof as if fully set forth herein. 47. By having GECAL perform the Full Performance Restoration on the 351 Engine, NAA provided WTC with a benefit of services to the Aircraft worth not less than $2,647, WTC was aware that NAA was performing services for its benefit, for which NAA reasonably expected to be compensated. 49. WTC accepted the benefit of the services rendered by NAA. 50. By reason of WTC s failure to pay the reasonable value of the services rendered, WTC has been unjustly enriched in an amount to be determined at trial, but not less than $2,647,501.72, plus interest. FOURTH CAUSE OF ACTION (Breach of Guaranty against Locat, San Paolo and Intesa) 51. Plaintiff repeats and realleges the allegations of paragraphs 1 through 39 hereof as if fully set forth herein. 52. Upon information and belief, by operation of the Deed of Assignment, Locat, San Paolo and Intesa are the Trustor under the Trust Agreement and the Participation Agreement. -9- Supreme Court Records OnLine Library - page 11 of 16

12 53. Pursuant to Section 2 of the Participation Agreement the Trustor expressly guaranteed WTC s performance of its obligation to pay the amount due to NAA pursuant to Section 4.3(b)(ii)(A) of the Lease Agreement. 54. NAA has performed all of its obligations under the Lease Agreement and the Participation Agreement. 55. WTC has failed to pay NAA the amount due pursuant to Section 4.3(b)(ii)(A) of the Lease Agreement in connection with the Full Performance Restoration by GECAL on the 35 1 Engine. 56. Locat, San Paolo and Intesa have breached the terms of the Participation Agreement, including without limitation, their guaranty of WTC s obligation to pay NAA the amount due pursuant to Section 4.3(b)(ii)(A) of the Lease Agreement. 57. By reason of the foregoing, NAA has been damaged in an amount to be determined at trial, but in no event less than $2,647,501.72, plus interest. FIFTH CAUSE OF ACTION (Unjust Enrichment against Locat, San Paolo and Intesa) 58. Plaintiff repeats and realleges the allegations of paragraphs 1 through 39 hereof as if fully set forth herein. 59. Pursuant to the Lease Agreement, all payments due to Lessor, including Maintenance Reserve Payments, are made directly to the Trustor. Upon termination of the Lease Agreement, the Aircraft may be re-let or sold by WTC to a third party, In the alternative, Locat, San Paolo and Intesa may terminate the Trust Agreement and direct WTC to reconvey the Aircraft to themselves Supreme Court Records OnLine Library - page 12 of 16

13 60. Whether the Aircraft is relet, sold or otherwise transferred to a third party or reconveyed to Locat, San Paolo and Intesa, by reason of NAA s performance of the Full Performance Restoration, the 351 Engine will be worth more than if the work had not been performed. 61. Locat, San Paolo and Intesa were aware that NAA was performing services for its benefit, for which NAA reasonably expected to be compensated. NAA. 62. Locat, San Paolo and Intesa accepted the benefit of the services rendered by 63. By reason of WTC s failure to pay the reasonable value of the services rendered, WTC has been unjustly enriched in an amount to be determined at trial, but not less than $2,647,50.72, plus interest. SIXTH CAUSE OF ACTION (Breach of Guaranty against ALE) 64. Plaintiff repeats and realleges the allegations of paragraphs 1 through 39 hereof as if fully set forth herein. 6s. In Section 2 of the Participation Agreement ALE expressly guaranteed WTC s performance of its obligation to pay the amount due to NAA pursuant to Section 4.3(b)(ii)(A) of the Lease Agreement. 66. NAA has performed all of its obligations under the Lease Agreement and the Participation Agreement. 67. WTC has failed to pay NAA the amount due pursuant to Section 4,3(b)(ii)(A) of the Lease Agreement in connection with the Full Performance Restoration by GECAL on the 351 Engine Supreme Court Records OnLine Library - page 13 of 16

14 68. ALE has breached the terms of the Participation Agreement, including without limitation, its guaranty of WTC s obligation to pay NAA the amount due pursuant to Section 4.3@)(ii)(A) of the Lease Agreement. 69. By reason of the foregoing, NAA has been damaged in an amount to be determined at trial, but in no event less than $2,647,501.72, plus interest. SEVENTH CAUSE OF ACTION (Unjust Enrichment against ALE) 70. Plaintiff repeats and realleges the allegations of paragraphs 1 through 39 hereof as if fully set forth herein. 71. Pursuant to the Lease Agreement, all payments due to Lessor, including Maintenance Reserve Payments, are made directly to the Trustor. Upon termination of the Lease Agreement, the Aircraft may be re-let or sold by WTC to a third party. In the alternative, ALE may terminate the Trust Agreement and direct WTC to reconvey the Aircraft to ALE. 72. Whether the Aircraft is re-let, sold or otherwise transferred to a third party or reconveyed to ALE, by reason of NAA s performance of the Full Performance Restoration, the 35 1 Engine will be worth more than if the work had not been performed. 73. ALE was aware that NAA was performing services for its benefit, for which NAA reasonably expected to be compensated. 74, 75. ALE accepted the benefit of the services rendered by NAA, By reason of WTC s failure to pay the reasonable value of the services rendered, WTC has been unjustly enriched in an amount to be determined at trial, but not less than $2,647,501.72, plus interest Supreme Court Records OnLine Library - page 14 of 16

15 WHEREFORE, judgment is demanded as follows: On the First Cause of Action against WTC, compensatory damages, in an amount to be determined at trial, but not less than $2,647,501.72, plus interest; On the Second Cause of Action against WTC, compensatory damages, in an amount to be determined at trial, but not less than $2,647,501.72, plus interest; On the Third Cause of Action against WTC, compensatory damages, in an amount to be determined at trial, but not less than $2,647,501.72, plus interest; On the Fourth Cause of Action against Locat, San Paolo and Intesa, Compensatory damages, in an amount to be determined at trial, but not less than $2,647,501.72, plus interest; On the Fifth Cause of Action against Locat, San Paolo and Intesa, compensatory damages, in an amount to be determined at trial, but not less than $2,647,501.72, plus interest; On the Sixth Cause of Action against ALE, compensatory damages, in an amount to be determined at trial, but not less than $2,647,501.72, plus interest; On the Seventh Cause of Action against ALE, compensatory damages, in an amount to be determined at trial, but not less than $2,647,501.72, plus interest; Dated: New York, New York September 29,2009 For Plaintiffs reasonable attorneys fees and expenses in this action; and Granting such other and further relief as may be just and proper. &* TROUTMAN SANDERS LLP Matthew J. Aaronson The Chrysler Building 405 Lexington Avenue New York, New York (212) Attorneys for Plaintiff Supreme Court Records OnLine Library - page 15 of 16

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