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Exhibit 1.1
AMERICA WEST AIRLINES, INC.
1997-1 PASS THROUGH TRUSTS
$_______,000
Pass Through Certificates, Series 1997-1A, 1997-1B, 1997-1C and 1997-1D
UNDERWRITING AGREEMENT
May __, 1997
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
1. Introductory. It is proposed that Fleet National
Bank, as trustee under each of the Trusts (as defined below) (each, a
"Trustee"), issue and sell to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, as underwriter
(the "Underwriter"), its pass through certificates in the aggregate principal
amounts set forth on Schedule I hereto and with the interest rates and final
distribution dates set forth on Schedule II hereto (the "Offered Certificates")
on the terms and conditions stated herein.
The Offered Certificates will be issued pursuant to a pass
through trust agreement, dated as of June __, 1997 (the "Basic Agreement"), and
four separate supplements thereto, dated as of June __, 1997 (each, a "Trust
Supplement" and together with the Basic Agreement, collectively, the "Pass
Through Trust Agreements") between America West Airlines, Inc., a Delaware
corporation (the "Company"), and the Trustee, relating to the creation and
administration of America West Airlines Pass Through Trust Series 1997-1A (the
"Class A Trust"), America West Airlines Pass Through Trust Series 1997-1B (the
"Class B Trust"), America West Airlines Pass Through Trust Series 1997-1C (the
"Class C Trust") and America West Airlines Pass Through Trust Series 1997-1D
(the "Class D Trust" and, together with the Class A Trust, the Class B Trust
and the Class C Trust, the "Trusts"). Certain amounts of interest payable on
the Offered Certificates to be issued by the Class A Trust, the Class B Trust
and the Class C Trust will be entitled to the benefits of a separate liquidity
facility for each such Trust. Kredietbank N.V., acting through its New York
branch (the "Liquidity Provider"), will enter into three irrevocable revolving
credit agreements (each, a "Liquidity Facility"), to be dated as of June __,
1997, for the benefit of the holders of the Offered Certificates issued by the
Class A Trust, the Class B Trust and the Class C Trust,
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respectively. The Liquidity Provider and the holders of the Offered
Certificates will be entitled to the benefits of an Intercreditor Agreement to
be dated as of June __, 1997 (the "Intercreditor Agreement") among the Trusts,
Fleet National Bank, as subordination agent (the "Subordination Agent"), and
the Liquidity Provider. The Leases (as defined in the Pass Through Trust
Agreements) provide that the aggregate amounts unconditionally payable by the
Company under the Leases will be at least sufficient to pay in full when due
all scheduled amounts required to be paid on the Equipment Notes, although the
Equipment Notes (as defined in the Pass Through Trust Agreements) are not
obligations of the Company or guaranteed by the Company.
Capitalized terms used but not defined herein have the
meanings assigned to them in the Pass Through Trust Agreements, or, if not
defined therein, the meanings specified in each of the four Indentures referred
to in such Pass Through Trust Agreements or in each of the four Leases referred
to in such Indentures.
The Company understands that the Underwriter proposes to make
an offering of the Offered Certificates on the terms, subject to the conditions
and in the manner set forth in the Prospectus (as defined below) and Section 5
hereof.
The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Act"), a registration statement on
Form S-3 under the Act (the "registration statement"), including a prospectus
subject to completion relating to the Offered Certificates. The term
"Registration Statement" as used in this Agreement means the registration
statement (including all financial schedules and exhibits), as amended at the
time it becomes effective, or, if the registration statement becomes effective
prior to the execution of this Agreement, as supplemented or amended prior to
the execution of this Agreement; provided, however, that if it is contemplated,
at the time this Agreement is executed, that a post-effective amendment to the
registration statement will be filed and must be declared effective before the
offering of the Offered Certificates may commence, then the term "Registration
Statement" as used in this Agreement means the registration statement as
amended by said post-effective amendment and any additional post-effective
amendment that is subsequently filed with the Commission. The term
"Prospectus" as used in this Agreement means the prospectus in the form
included in the Registration Statement, as such prospectus may subsequently be
amended or supplemented, including, if the prospectus included in the
Registration Statement omits information in reliance on Rule 430A under the Act
and such information is included in a prospectus filed with the Commission
pursuant to Rule 424(b) under the Act, the prospectus in the form included in
the Registration Statement as supplemented by the addition of the Rule 430A
information contained in the prospectus filed with the Commission pursuant to
Rule 424(b). The term "Preliminary Prospectus" as used in this Agreement means
the prospectus subject to completion in the form included in the registration
statement at the time of the initial filing of the registration statement with
the Commission, and as such prospectus shall have been amended from time to
time prior to the date of the Prospectus. Any reference herein to the
registration statement, the Registration Statement, any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Form S-3 under the Act, as of the
date of the registration statement, the
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Registration Statement, such Preliminary Prospectus or the Prospectus, as the
case may be, and any reference to any amendment or supplement to the
registration statement, the Registration Statement, any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include any documents filed
after such date under the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder (collectively, the "Exchange
Act") and deemed incorporated by reference pursuant to Form S-3 under the Act.
As used herein, the term "Incorporated Documents" means the documents which at
the time are incorporated by reference in the registration statement, the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto.
2. Representations and Warranties of the Company. The
Company represents and warrants to, and agrees with, the Underwriter and GPA
(as hereinafter defined) on and as of the date hereof and on and as of the
Closing Date (as defined in Section 4 hereof) that:
(a) The Company meets the requirements for use of Form S-3
under the Act. The registration statement in the form in which it
became or becomes effective and also in such form as it may be when
any post-effective amendment thereto shall become effective complied
and will comply in all material respects with the provisions of the
Act and did not and will not at any such time contain an untrue
statement of a material fact or omit to state a material fact with
respect to the America West Information (as defined in Annex I hereto)
required to be stated therein or necessary to make the statements
therein not misleading. The Prospectus when filed with the Commission
under Rule 424(b) under the Act complied and will comply in all
material respects with the provisions of the Act and on the date
hereof, at the time it is furnished to the Underwriter for its use and
on the Closing Date did not and will not at any such time contain an
untrue statement of a material fact or omit to state a material fact
with respect to the America West Information necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading. The representations and
warranties made in this paragraph (a) shall not apply to any
statements or omissions made in reliance upon and in conformity with
the Underwriter Information (as defined in Section 8(a) hereof) nor to
any statements or omissions in that part of the Registration Statement
that shall constitute the Statement of Eligibility under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), on Form
T-1.
(b) The Incorporated Documents heretofore filed were filed in
a timely manner and, when they were filed (or, if any amendment with
respect to any such document was filed, when such amendment was
filed), complied in all material respects with the requirements of the
Exchange Act and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and any
further Incorporated Documents will, when so filed, be filed in a
timely manner and will comply in all material respects with the
requirements of the Exchange Act and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading.
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(c) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own, lease and
operate its property and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under this
Agreement and the other Operative Documents to which it is or will be
a party; and the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business requires
such qualification, except where the failure to so qualify would not
have a material adverse effect on the condition (financial or
otherwise), or the earnings, business affairs, business prospects or
properties of the Company or on the ability of the Company to perform
its obligations under this Agreement and the other Operative Documents
to which it is or will be a party or on the consummation of the
transactions contemplated herein or therein (a "Material Adverse
Effect").
(d) The Company has no subsidiaries.
(e) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus under "Capitalization"
(except for subsequent issuances, if any, pursuant to reservations,
agreements, employee benefit plans or the exercise of the warrants
referred to in the Prospectus). All of the issued and outstanding
shares of capital stock of the Company have been duly authorized and
validly issued and are fully paid and non-assessable.
(f) Except as described in the Prospectus, the Company is
not in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which it
is a party or by which it may be bound or to which any of its
properties may be subject, except for such defaults that would not
have a Material Adverse Effect. The execution, delivery and
performance of this Agreement and the other Operative Documents to
which the Company is or will be a party and the consummation of the
transactions contemplated herein and therein have been duly authorized
by all necessary corporate action of the Company, do not require any
stockholder approval, or approval or consent of any trustee or holder
of any material indebtedness or material obligations of the Company,
except such as have been duly obtained and are in full force and
effect, and will not result in any breach of any of the terms,
conditions or provisions of, or constitute a default under, or result
in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company pursuant to any indenture, loan
agreement, contract or other instrument to which the Company is a
party or by which the Company may be bound or to which any of the
property or assets of the Company is subject, the failure of which to
obtain or which breach, default, lien, charge or encumbrance,
individually or in the aggregate, would have a Material Adverse
Effect, nor will any such execution, delivery or performance result in
any violation of the provisions of the certificate of incorporation or
by-laws of the Company, or any statute or any rule, regulation or
order of any governmental agency or body or any court having
jurisdiction over the Company.
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(g) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
to be obtained or made by the Company for the valid authorization,
execution and delivery by the Company of this Agreement and the other
Operative Documents to which the Company is or will be a party and for
the consummation by the Company of the transactions contemplated
herein and therein, except such as may be required under (i) the
securities or Blue Sky laws of the various states, (ii) the Sections
of Title 49 of the United States Code relating to aviation, as amended
(the "Aviation Act"), and filings or recordings with the Federal
Aviation Administration (the "FAA"), and (iii) the Uniform Commercial
Code as is in effect in the State of Arizona and filings thereunder,
which filings listed in the preceding clauses (ii) and (iii) shall
have been made, or duly presented for filing, on or prior to the
Closing Date (it being understood that no representation is made as to
what actions, if any, must be taken by any Person other than the
Company to consummate such transactions).
(h) The Company has all necessary consents, authorizations,
approvals, orders, certificates and permits of and from, and has made
all declarations and filings with, all Federal, state, local and other
governmental authorities, all self-regulatory organizations and all
courts and other tribunals, to own, lease, license and use its
properties and assets and to conduct its business in the manner
described in the Prospectus, except to the extent that the failure to
so obtain, declare or file would not have a Material Adverse Effect.
(i) Except as disclosed in the Prospectus, there is no
action, suit or proceeding before or by any governmental agency or
body or court, domestic or foreign, now pending or, to the best
knowledge of the Company, threatened against the Company or any of its
properties that could reasonably be expected to result in a Material
Adverse Effect; all pending legal or governmental proceedings to which
the Company is a party or which affect any of its properties that are
not described in the Prospectus including ordinary routine litigation
incidental to its business, are not, singly or in the aggregate,
reasonably expected to have a Material Adverse Effect.
(j) The Company has not taken any corporate action or, to the
best knowledge of the Company, have any other steps been taken or
legal proceedings been started or threatened against it (i) as a
result of which it could become bankrupt, (ii) for its winding-up,
dissolution or reorganization or (iii) for the appointment of a
liquidator, receiver, administrator, administrative receiver, examiner
or similar officer of it or of any or all its assets or revenues.
(k) This Agreement and the other Operative Documents to which
the Company is a party have been duly executed and delivered by the
Company and the other Operative Documents to which the Company will be
a party will be duly executed and delivered by the Company on or prior
to the Closing Date.
(l) The Operative Documents (other than this Agreement) to
which the Company is or will be a party will constitute, when duly
executed and delivered by the Company, assuming that such Operative
Documents have been duly authorized,
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executed and delivered by, and constitute the legal, valid and binding
obligations of, each other party thereto, the legal, valid and binding
obligations of the Company, enforceable against the Company in
accordance with their terms, except as enforcement thereof may be
limited by (i) bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization,
moratorium, or other similar laws now or hereinafter in effect
relating to creditors' rights generally and as enforcement thereof is
subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law), or
(ii) with respect to indemnification and contribution provisions,
applicable law.
(m) The financial statements included in the Prospectus,
together with the related notes thereto, present fairly the financial
position of the Company at the dates indicated and the results of
operations and cash flows of the Company for the periods specified.
Such financial statements have been prepared in conformity with
generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved, except as otherwise
stated in the Prospectus.
(n) Since the respective dates as of which information is
given in the Prospectus, except as otherwise stated therein, there has
been no material adverse change in the condition (financial or
otherwise), or in the earnings, business affairs, business prospects
or properties of the Company, whether or not arising in the ordinary
course of business (a "Material Adverse Change"). Except as disclosed
in the Prospectus, the Company has no material (i) contingent
obligations, (ii) forward or long-term commitments or (iii) unrealized
or anticipated losses from any unfavorable commitments.
(o) The Company is a "citizen of the United States" within
the meaning of Section 40102(a)(15) of Title 49 of the United States
Code, as amended, holding an air carrier operating certificate issued
by the Secretary of Transportation pursuant to Chapter 447 of Title 49
of the United States Code, as amended, for aircraft capable of
carrying 10 or more individuals or 6,000 pounds or more cargo.
(p) When executed, authenticated, issued and delivered in the
manner provided for in the Pass Through Trust Agreements and this
Agreement and sold and paid for as provided in this Agreement, the
Offered Certificates will be legally and validly issued and will be
entitled to the benefits of the related Pass Through Trust Agreements.
(q) Except as disclosed in the Prospectus, the Company has
good and sufficient title for the use made and proposed to be made of
all of its properties, whether real or personal, in each case free
from liens, encumbrances and defects except where the failure to have
such title would not have a Material Adverse Effect; and except as
disclosed in the Prospectus, the Company holds any leased real or
personal property under valid and enforceable leases with no
exceptions that would have a Material Adverse Effect.
(r) The statements in the Prospectus describing various
provisions of the Leases provide accurate summaries of such provisions
in all material respects.
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(s) Except as disclosed in the Prospectus, the Company is not
in violation of any Federal, state or local law relating to
discrimination in the hiring, promotion or pay of employees nor any
applicable wage or hour laws that, singly or in the aggregate, could
have a Material Adverse Effect. There is (i) no significant unfair
labor practice complaint pending against the Company or, to the best
knowledge of the Company, threatened against the Company, before the
National Labor Relations Board, the National Mediation Board or any
state or local labor relations or mediation board, and no significant
grievance or significant arbitration proceeding arising out of or
under any collective bargaining agreement is so pending against the
Company or, to the best knowledge of the Company, threatened against
the Company, and (ii) no labor dispute in which the Company is
involved nor, to the best knowledge of the Company, is any labor
dispute imminent, other than routine disciplinary and grievance
matters, except as disclosed in the Prospectus. The Company is in
compliance in all material respects with all presently applicable
provisions of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and the regulations and published interpretations
thereunder, including, but not limited to Sections 4975 and 4980B of
the Internal Revenue Code of 1986, as amended (the "Code"). There are
no "pension plans" established or maintained by the Company or
"multi-employer pension plans" to which the Company is a contributor
that are intended to be qualified under Section 401(a) of the Code.
(t) Except as disclosed in the Prospectus, the Company is
not in violation of any Federal, State or local laws and regulations
relating to pollution or protection of human health or the environment
(including, without limitation, ambient air, surface water, ground
water, land surface or subsurface strata), including, without
limitation, laws and regulations relating to emissions, discharges,
releases or threatened releases of toxic or hazardous substances,
materials or wastes, or petroleum and petroleum products ("Materials
of Environmental Concern"), or otherwise relating to the protection of
human health and safety, or the storage, disposal, transport or
handling of Materials of Environmental Concern (collectively,
"Environmental Laws"), which violation includes, but is not limited
to, noncompliance with any permits or other governmental
authorizations, excluding any violations which individually or in the
aggregate would not have a Material Adverse Effect; the Company has
not received any communication (written or oral), whether from a
governmental authority or otherwise, alleging any such violation or
noncompliance, and there are no circumstances, either past, present or
that are reasonably foreseeable, that may lead to such violation in
the future; there is no pending or threatened claim, action,
investigation or notice (written or oral) by any person or entity
alleging potential liability for investigatory, cleanup, or
governmental responses costs, or natural resources or property
damages, or personal injuries, attorney's fees or penalties relating
to (i) the presence, or release into the environment, of any Material
of Environmental Concern at any location owned or operated by the
Company, now or in the past, or (ii) circumstances forming the basis
of any violation, or alleged violation, of any Environmental Law
(collectively, "Environmental Claims"); and there are no past or
present actions, activities, circumstances, conditions, events or
incidents, that could form the basis of any Environmental Claim
against the Company or against any person or entity whose liability
for any Environmental Claim the Company has retained or
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assumed either contractually or by operation of law. In the ordinary
course of its business, the Company conducts a periodic review of the
effect of Environmental Laws on the business, operations and
properties of the Company, in the course of which it identifies and
evaluates associated costs and liabilities (including, without
limitation, any capital or operating expenditures required for
clean-up, closure of properties or compliance with Environmental Laws
or any permit, license or approval, any related constraints on
operating activities and any potential liabilities to third parties);
on the basis of such review, the Company has reasonably concluded that
such associated costs and liabilities could not singly or in the
aggregate, have a Material Adverse Effect.
(u) All tax returns required to be filed by the Company have
been timely filed and such returns are true, complete and correct in
all material respects. All taxes due or claimed to be due from the
Company that are due and payable have been paid, other than those (i)
being contested in good faith and for which an adequate reserve or
accrual has been established in accordance with GAAP or (ii) those
currently payable without penalty or interest for which an adequate
reserve or accrual has been established or extensions duly paid.
Except as described in the Prospectus, the Company does not know of
(A) any actual or proposed material additional tax assessments or (B)
any probable basis for the imposition of any material additional tax
assessments for any fiscal period against the Company.
(v) KPMG Peat Marwick, the firm that examined and issued an
auditors' report with respect to the financial statements of the
Company included in the Prospectus, are independent public accountants
within the meaning of the Securities Act and the regulations
thereunder.
(w) Neither BK Associates, Inc., Aircraft Information
Services, Inc. nor ▇▇▇▇▇▇ ▇▇▇▇▇ and Associates (collectively, the
"Appraisers") is an affiliate of the Company or, to the best of the
Company's knowledge, has a substantial interest, direct or indirect,
in the Company. To the best of the Company's knowledge, none of the
officers and directors of any of such Appraisers are connected with
the Company or any of its affiliates as an officer, employee,
promoter, underwriter, trustee, partner, director or person performing
similar functions.
(x) To the best of the Company's knowledge, no event has
occurred and is continuing which constitutes a Lease Event of Default
or would constitute a Lease Event of Default under any Lease but for
the requirement that notice be given or time lapse or both.
(y) To the best of the Company's knowledge, no event has
occurred and is continuing which constitutes an Event of Loss (as
defined in each Lease) or would constitute an Event of Loss under any
Lease with the lapse of time.
(z) The Company is and will be the "issuer" within the
meaning of the Securities Act with respect to the offering and sale of
the Offered Certificates.
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(aa) The Company is not an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in
the Investment Company Act of 1940, as amended (the "Investment
Company Act").
(bb) As of the Closing Date, the Pass Through Trust
Agreements will have been duly qualified under the Trust Indenture
Act, and the rules and regulations promulgated thereunder, and comply
as to form in all material respects with the requirements of the Trust
Indenture Act.
(cc) The Company has not and is not presently doing business
with the government of Cuba or with any person or affiliate located in
Cuba.
(dd) All of the Company's representations and warranties to
be contained in Section 8 of each Refunding Agreement, when made,
shall be incorporated by reference in this Agreement as if set forth
herein, and shall be true and correct on and as of the date they are
made by the Company pursuant to each Refunding Agreement and on and as
of the Closing Date.
3. Representations and Warranties of GPA. Each of GPA
Group plc ("GPA Group") and GPA Leasing USA Sub I, Inc. ("GPA Sub I" and,
collectively with GPA Group, "GPA") represents and warrants to, and agrees
with, the Underwriter and the Company on and as of the date hereof and on and
as of the Closing Date that:
(a) The registration statement in the form in which it became
or becomes effective and also in such form as it may be when any
post-effective amendment thereto shall become effective did not and
will not at any such time contain any untrue statement of a material
fact or omit to state any material fact with respect to the GPA
Information (as defined in Annex I hereto) required to be stated
therein or necessary in order to make the statements therein not
misleading. The Prospectus on the date hereof, at the time it is
furnished to the Underwriter for its use and on the Closing Date, did
not and will not at any such time contain an untrue statement of a
material fact or omit to state a material fact with respect to the GPA
Information necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
The representations and warranties made in this paragraph (a) shall
not apply to any statements or omissions made in reliance upon and in
conformity with the Underwriter Information nor to any statements or
omissions in that part of the Registration Statement that shall
constitute the Statement of Eligibility under the Trust Indenture Act
on Form T-1.
(b) GPA Group is a corporation duly organized and validly
existing under the laws of Ireland, with power and authority
(corporate and other) to own, lease and operate its properties and to
conduct its business as presently conducted and to enter into and
perform its obligations under this Agreement and the other Operative
Documents to which it is or will be a party.
(c) GPA Sub I is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of
Connecticut, with power and authority
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(corporate and other) to own, lease and operate its properties and to
conduct its business as presently conducted and to enter into and
perform its obligations under this Agreement and the other Operative
Documents to which it is or will be a party.
(d) Except as described in the Form 20-F most recently filed
by GPA Group with the Commission (the "Form 20-F"), neither GPA Group
nor GPA Sub I is in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which it is a party or by which it may be bound or to
which any of its properties may be subject, except for such defaults
that would not have a material adverse effect on the condition
(financial or otherwise), or the earnings, business affairs, business
prospects or properties of GPA Group and its subsidiaries taken as a
whole, or on the ability of GPA Group or GPA Sub I to perform their
respective obligations under this Agreement and the other Operative
Documents to which GPA Group or GPA Sub I, as the case may be, is or
will be a party or on the consummation by GPA of the transactions
contemplated herein or therein (a "GPA Material Adverse Effect"). The
execution, delivery and performance of this Agreement and the other
Operative Documents to which GPA Group or GPA Sub I is or will be a
party and the consummation by GPA of the transactions contemplated
herein and therein have been duly authorized by all necessary
corporate action of GPA Group and GPA Sub I, as the case may be, do
not require any stockholder approval, or approval or consent of any
trustee or holder of any material indebtedness or material obligations
of GPA Group or GPA Sub I, except such as have been duly obtained and
are in full force and effect, and will not result in any breach of any
of the terms, conditions or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of GPA Group or GPA Sub I
pursuant to any indenture, loan agreement, contract or other
instrument to which GPA Group or GPA Sub I is a party or by which GPA
Group or GPA Sub I may be bound or to which any of the property or
assets of GPA Group or GPA Sub I is subject, the failure of which to
obtain or which breach, default, lien, charge or encumbrance,
individually or in the aggregate, would have a GPA Material Adverse
Effect, nor will any such execution, delivery or performance result in
any violation by GPA of the provisions of the memorandum, articles of
association, certificate of incorporation or by-laws, as the case may
be, of GPA Group or GPA Sub I or any statute, or any rule, regulation
or order of any governmental agency or body or any court having
jurisdiction over GPA Group or GPA Sub I.
(e) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
to be obtained or made by GPA for the valid authorization, execution
and delivery by GPA Group or GPA Sub I of this Agreement and the
Operative Documents to which GPA Group or GPA Sub I is or will be a
party and for the consummation by GPA of the transactions contemplated
herein and therein, except such as may be required under (i) the
Sections of the Aviation Act and filings or recordings with the FAA
and (ii) the Uniform Commercial Code as is in effect in the States of
Arizona and Connecticut and similar statutes as in effect in the
country of Ireland and filings thereunder, which filings listed in the
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preceding clauses (i) and (ii) shall have been made, or duly presented
for filing on or prior to the Closing Date.
(f) Except as disclosed in the Form 20-F, there is no action,
suit or proceeding before or by any governmental agency or body or
court, domestic or foreign, now pending or, to the best knowledge of
GPA Group or GPA Sub I, threatened against GPA Group or GPA Sub I or
any of their respective properties that could reasonably be expected
to result in a GPA Material Adverse Effect.
(g) On or prior to the Closing Date, the issuance of the
Equipment Notes to be issued under each Indenture will be duly
authorized by the related Owner Trustee, and when duly executed and
delivered by the related Owner Trustee, and duly authenticated by the
related Indenture Trustee in accordance with the terms of such
Indenture, will be duly issued under such Indenture and will
constitute the valid and binding obligations of such Owner Trustee,
and the holders thereof will be entitled to the benefits of such
Indenture, except as enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law). The offer and sale of the
Equipment Notes will be exempt from the registration requirements of
the Act and it will not be necessary to qualify any of the Indentures
under the Trust Indenture Act in respect of any such offer or sale.
(h) Neither GPA Group nor GPA Sub I has taken any corporate
action or, to the best knowledge of GPA Group and GPA Sub I, have any
other steps been taken or legal proceedings been started or threatened
against it (i) as a result of which it could become bankrupt, (ii) for
its winding-up, dissolution or reorganization or (iii) for the
appointment of a liquidator, receiver, administrator, administrative
receiver, examiner or similar officer of it or of any or all its
assets or revenues.
(i) This Agreement and the other Operative Documents to which
each of GPA Group and GPA Sub I is a party have been duly executed and
delivered by each of GPA Group and GPA Sub I, and the other Operative
Documents to which GPA Group and GPA Sub I will be a party will be
duly executed and delivered by each of GPA Group and GPA Sub I on or
prior to the Closing Date.
(j) The statements in the Prospectus describing various
provisions of the Pass Through Trust Agreements, the Offered
Certificates, the Intercreditor Agreement, the Liquidity Facilities,
the Equipment Notes and the Indentures provide accurate summaries of
such provisions in all material respects.
(k) The Operative Documents (other than this Agreement) to
which each of GPA Group or GPA Sub I is or will be a party will
constitute, when duly executed and delivered by each of GPA Group or
GPA Sub I, as the case may be, assuming that such Operative Documents
have been duly authorized, executed and delivered by, and
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constitute the legal, valid and binding obligations of, each other
party thereto, the legal, valid and binding obligations of each of GPA
Group or GPA Sub I, as the case may be, enforceable against each of
GPA Group or GPA Sub I, as the case may be, in accordance with their
terms, except as enforcement thereof may be limited by (i) bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other similar
laws now or hereinafter in effect relating to creditors' rights
generally and as enforcement thereof is subject to general principles
of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law), or (ii) with respect to
indemnification and contribution provisions, applicable law.
(l) To the best of GPA's knowledge, no event has occurred and
is continuing which constitutes a Lease Event of Default or would
constitute a Lease Event of Default under any Lease but for the
requirement that notice be given or time lapse or both.
(m) To the best of GPA's knowledge, no event has occurred and
is continuing which constitutes an Event of Loss (as defined in each
Lease) or would constitute an Event of Loss under any Lease with the
lapse of time.
(n) Neither GPA Group, GPA Sub I nor any of the Trusts is an
"investment company" or an entity "controlled" by an "investment
company", as such terms are defined in the Investment Company Act; and
none of the Trusts, after giving effect to the offering and sale of
the Offered Certificates and the application of the proceeds thereof
as described in the Prospectus, will be an "investment company" as
defined in the Investment Company Act.
(o) All of GPA Group's and GPA Sub I's representations and
warranties to be contained in Section 9 of each Refunding Agreement,
when made, shall be incorporated by reference in this Agreement as if
set forth herein, and shall be true and correct on and as of the date
they are made by each of GPA Group and GPA Sub I pursuant to each
Refunding Agreement and on and as of the Closing Date.
4. Purchase, Sale and Delivery of Offered Certificates.
(a) Subject to the terms and conditions set forth herein and
in reliance upon the representations and warranties herein contained,
the Company agrees to cause the Trustee to sell to the Underwriter,
and the Underwriter agrees to purchase from each Trustee, at a
purchase price of 100% of the principal amount thereof, the aggregate
principal amount of Offered Certificates of each Trust set forth in
Schedule I hereto.
(b) The Company is advised by the Underwriter that the
Underwriter proposes to make a public offering of the Offered
Certificates as soon after this Agreement has been entered into as in
the Underwriter's judgment is advisable. The Company is further
advised by the Underwriter that the Offered Certificates are to be
offered to the public initially at 100% of their principal amount --
the public offering price -- plus accrued interest, if any, and to
certain dealers selected by the Underwriter at
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concessions not in excess of the concessions set forth in the
Prospectus, and that the Underwriter may allow, and such dealers may
reallow, concessions not in excess of the concessions set forth in the
Prospectus to certain other dealers.
(c) As compensation to the Underwriter for its commitments
and obligations hereunder in respect of the Offered Certificates,
including its undertakings to distribute the Offered Certificates, GPA
Sub I will pay to the Underwriter with respect to the Offered
Certificates of each Trust purchased by it as set forth in Schedule I
hereto of the total amount of commissions payable in respect of the
Offered Certificates of each such Trust as set forth in Schedule II
hereto; provided that if GPA Sub I fails to pay such amounts when due,
GPA Group will pay such amounts. Such payment shall be made
simultaneously with the payment by the Underwriter to the Trustee of
the purchase price of the Offered Certificates as specified in Section
4(a) hereof. Payment of such compensation shall be made by Federal
funds check or other immediately available funds.
(d) Delivery of and payment for the Offered Certificates
shall be made at the offices of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at 10:00 A.M. on June
__, 1997, the Underwriter, GPA and the Company, collectively, having
determined that it is not feasible to close at an earlier date, or
such other date, time and place as may be agreed upon by the
Underwriter and the Company (such date and time of delivery and
payment for the Offered Certificates being herein called the "Closing
Date"). Delivery of the Offered Certificates shall be made through
the facilities of The Depository Trust Company against payment by the
Underwriter of the purchase price thereof to or upon the order of the
Trustee by wire transfer. The Offered Certificates shall be
registered in the name of Cede & Co. or in such other names, and in
such denominations as the Underwriter may request in writing at least
two full business days in advance of the Closing Date.
(e) The Company agrees to have the Offered Certificates
available for inspection, checking and packaging by the Underwriter in
New York, New York not later than 1:00 P.M. on the business day prior
to the Closing Date.
5. Certain Agreements of the Company. The Company
agrees with the Underwriter that:
(a) The Company will advise the Underwriter promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus and will not effect such amendment or supplementation
without the consent of the Underwriter, which consent will not be
unreasonably withheld. If, at any time during the period when a
prospectus relating to the Offered Certificates is required to be
delivered by the Underwriter or a dealer under the Act any event
occurs as a result of which in the reasonable opinion of counsel to
the Underwriter or counsel to the Company the Registration Statement
or the Prospectus as then amended or supplemented would not comply
with applicable law or would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading, the Company
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promptly will prepare, at the expense of GPA Sub I (or, alternatively,
at the expense of GPA Group), an amendment or supplement which, in the
reasonable opinion of counsel to the Underwriter or counsel to the
Company, will comply with such law or will correct such statement or
omission, will promptly file such amendment or supplement with the
Commission, and will furnish, at the expense of GPA Sub I (or,
alternatively, at the expense of GPA Group), to the Underwriter and to
the dealers (whose names and addresses the Underwriter will furnish to
the Company), upon request, copies of the Prospectus as so amended or
supplemented. Neither the consent of the Underwriter to, nor the
Underwriter's delivery to offerees or investors of, any such amendment
or supplement shall constitute a waiver of any of the conditions set
forth in Section 7.
(b) At the expense of GPA Sub I (or, alternatively, at the
expense of GPA Group), the Company will furnish to the Underwriter one
signed and as many conformed copies of each Registration Statement (as
originally filed) and of all amendments thereto, whether filed before
or after such Registration Statement became effective, as many copies
of all exhibits and documents filed therewith or incorporated by
reference therein and one signed and as many conformed copies of all
consents and certificates of experts as the Underwriter may reasonably
request.
(c) At the expense of GPA Sub I (or, alternatively, at the
expense of GPA Group), the Company will furnish to the Underwriter
copies of the Preliminary Prospectus, the Prospectus and all
amendments and supplements to such documents, in each case as soon as
available and in such quantities as the Underwriter reasonably
requests. The Company will file the Prospectus pursuant to Rule
424(b) under the Act within the time required under such Rule and the
Act.
(d) The Company, at the expense of GPA Sub I (or,
alternatively, at the expense of GPA Group), will take such actions as
may be reasonably requested by the Underwriter to arrange for the
qualification of the Offered Certificates for sale under the
applicable securities or Blue Sky laws of such jurisdictions in the
United States as the Underwriter reasonably designates and will
continue such qualifications in effect so long as required for the
resale of the Offered Certificates by the Underwriter; provided that
the Company will not be required to (i) qualify as a foreign
corporation or as a dealer in securities, (ii) file a general consent
to service of process or (iii) subject itself to taxation in any such
state.
(e) The Company will as soon as practicable, but not later
than 18 months after the effective date of the Registration Statement,
make generally available to its security holders and to the
Underwriter an earnings statement of the Company and any subsidiaries
conforming with the requirements of Section 11(a) of the Act
(including, at the option of the Company, Rule 158 under the Act),
covering a period of at least 12 months beginning on the first day of
the first fiscal quarter of the Company commencing after the later of
(i) the effective date of the Registration Statement, (ii) the
effective date of the most recent post-effective amendment to the
Registration Statement to become effective prior to the date of such
acceptance and (iii) the date of the Company's most recent Annual
Report on Form 10-K filed with the Commission.
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(f) During the period of five years hereafter, the Company
will promptly furnish to the Underwriter copies of all of its annual
reports, quarterly reports and current reports on Forms 10-K, 10-Q and
8-K, or such other forms as may be designated by the Commission, and
any definitive proxy statement of the Company, in each case, filed
with the Commission under the Exchange Act or mailed to stockholders.
(g) So long as any of the Offered Certificates are
outstanding, the Company will furnish to the Underwriter, by
first-class mail as soon as practicable, (i) all documents distributed
by the Company to any holders of Offered Certificates, or filed with
the Commission pursuant to the Exchange Act, or any rule or regulation
of the Commission thereunder, (ii) any order of the Commission under
the Act or the Exchange Act received by the Company applicable to the
Trusts or to the Company as originator of the Trusts, or pursuant to a
"no-action" letter obtained from the staff of the Commission by the
Company and affecting the Trusts or the Company as originator of the
Trusts and (iii) from time to time, such other information concerning
the Company or, to the extent possessed by the Company or the Trusts
as the Underwriter may reasonably request.
(h) The Company will, during the period when a prospectus
relating to the Offered Certificates is required to be delivered by
the Underwriter or a dealer under the Act or the Exchange Act, file
all documents required to be filed with the Commission pursuant to
Section 13, 14, or 15(d) of the Exchange Act within the required time
periods. The Underwriter will notify the Company when such period
shall have expired.
(i) The Company will notify the Underwriter promptly after
the Company receives notice thereof, of the issuance by the Commission
of any stop order or of any order preventing or suspending the use of
any Preliminary Prospectus or the Prospectus, of the suspension of the
qualification of the Offered Certificates for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending
or supplementing of the Registration Statement or the Prospectus or
for additional information and, in the event of the issuance of any
stop order or order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending any such
qualification, at the expense of GPA Sub I (or, alternatively, at the
expense of GPA Group), promptly use reasonable efforts to obtain its
withdrawal.
(j) Between the date of this Agreement and the Closing Date,
the Company will not, without the prior written consent of the
Underwriter, offer, sell, or enter into any agreement to sell, any
public debt securities registered under the Act (other than the
Offered Certificates) or any debt securities which may be resold in a
transaction exempt from the registration requirements of the Act in
reliance on Rule 144A thereunder and which are marketed through the
use of a disclosure document containing substantially the same
information as a prospectus for similar debt securities registered
under the Act.
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(k) In connection with the offering, until the Underwriter
shall have notified the Company of the completion of the resale of the
Offered Certificates, neither the Company nor any of its affiliates
has bid for or purchased or will bid for or purchase, either alone or
with one or more other persons, for any account in which it or any of
its affiliates has a beneficial interest any Offered Certificates; and
neither it nor any of its affiliates will make bids or purchases for
the purpose of creating actual, or apparent, active trading in, or of
raising the price of, the Offered Certificates.
(l) To the extent, if any, that the ratings provided with
respect to the Offered Certificates by ▇▇▇▇▇'▇ Investors Service, Inc.
("▇▇▇▇▇'▇") or Standard & Poor's Rating Services ("Standard & Poor's"
and, together with ▇▇▇▇▇'▇, the "Rating Agencies") are conditional
upon the furnishing of documents or the taking of any other actions by
the Company, the Company will, at the expense of GPA Sub I (or,
alternatively, at the expense of GPA Group), furnish such documents
and take any such other actions in each case to the extent reasonably
practicable.
6. Certain Agreements of GPA. GPA agrees with the
Underwriter that:
(a) GPA Sub I shall pay (or cause to be paid), or if GPA Sub
I fails to pay, GPA Group shall pay, the following (without
duplication and subject to any other agreement in writing with the
Underwriter): (i) the preparation, printing, distribution and filing
of the registration statement (including financial statements and
exhibits), as originally filed and amended, the Preliminary
Prospectus, the Prospectus, and any amendments thereof or supplements
thereto, (ii) the preparation, printing and distribution of this
Agreement, the Pass Through Trust Agreements, the Offered
Certificates, the other Operative Documents and any Blue Sky
Memorandum or Legal Investment Survey by the Underwriter's counsel and
the reasonable fees and disbursements of Underwriter's counsel in
connection with such memorandum or survey, (iii) the delivery of the
Offered Certificates to the Underwriter, (iv) the reasonable fees and
disbursements of the Company's and GPA's counsel and the Company's
accountants, (v) the expenses of qualifying the Offered Certificates
under Blue Sky or state securities laws, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriter in
connection therewith, (vi) the fees and expenses of the Owner
Trustees, the Indenture Trustees, the Subordination Agent and the
Trustees and the reasonable fees and disbursements of their respective
counsel, (vii) any fees charged by the Rating Agencies for rating the
Offered Certificates (including annual surveillance fees related to
the Offered Certificates as long as they are outstanding), (viii) the
reasonable fees and disbursements of counsel for the Underwriter
generally incurred in connection with the consummation of the
transactions contemplated by this Agreement and the Operative
Documents, (ix) any fees of the National Association of Securities
Dealers, Inc. in connection with their review of the Underwriter's
compensation; (xi) the costs and charges of DTC and its nominee in
connection with the Offered Certificates, including the book-entry
ownership system for the Offered Certificates, (xi) all reasonable
travel, lodging and other expenses of the Underwriter and the
Company's officers and employees and any other expenses in connection
with attending or hosting meetings with prospective purchasers of
Offered Certificates, (xii) all fees and expenses relating to
appraisals of
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each of the Aircraft, and (xiv) all expenses specified in Section 21
of each Refunding Agreement.
If this Agreement is terminated by the Underwriter in
accordance with the provisions of Section 10, GPA shall reimburse the
Underwriter for all their reasonable out-of-pocket expenses.
(b) To the extent, if any, that the ratings provided with
respect to the Offered Certificates by any Rating Agency are
conditional upon the furnishing of documents or the taking of any
other actions by GPA, GPA will furnish such documents and take any
such other actions in each case to the extent reasonably practicable.
7. Conditions of the Obligations of the Underwriter.
The obligations of the Underwriter hereunder shall be subject to (i) the
condition that all representations and warranties and other statements of the
Company and GPA set forth or incorporated by reference herein and made in
certificates furnished pursuant hereto, and of each party to the Operative
Documents, made in such documents, are, at and as of the Closing Date, true and
correct, (ii) the condition that the Company and GPA shall have performed in
all material respects all of their respective obligations hereunder theretofore
to be performed, (iii) the condition that each of the Indenture Documents
related to each of the Owner Trusts constitutes the legal, valid and binding
agreements of the parties thereto, (iv) the condition that no Lease Event of
Default under any Lease or event or condition which with the passage of time or
the giving of notice or both would become a Lease Event of Default under any
Lease shall have occurred, and (v) the condition that none of the Foreign
Financing Documents have been repudiated by any party thereto or otherwise have
ceased to be in full force and effect, and to the following additional
conditions precedent:
(a) Subsequent to the date of this Agreement and on or prior
to the Closing Date,
(i) no stop order suspending the effectiveness
of either Registration Statement shall have been issued under
the Act and no proceedings therefor shall have been instituted
or threatened by the Commission.
(ii) there shall not have occurred any
downgrading, nor shall any notice have been given of any
intended or potential downgrading or of any review for a
possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company's
securities by the Rating Agencies or any other "nationally
recognized statistical rating organization", as such term is
defined for purposes of Rule 436(g)(2) under the Act; and
(iii) (A) the Company shall not have sustained,
since the date of the interim financial statements included in
the Prospectus, any material loss or interference with its
business from any court or governmental action, order or
decree, other than as set forth or contemplated in the
Prospectus and (B) since such date there shall not have
occurred any change, or any development involving a
prospective change, in or affecting the condition (financial
or
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otherwise), or the earnings, business affairs, business
prospects or properties of the Company that, individually or
in the aggregate, other than as set forth or contemplated in
the Prospectus, the effect of which, in any such case
described in clause (A) or clause (B), is material and adverse
and that makes it, in the judgment of the Underwriter,
impracticable or inadvisable to market the Offered
Certificates on the terms and in the manner contemplated in
the Prospectus.
(iv) since the date of the Prospectus there
shall not have occurred any change or development which would
reasonably be expected to result in a prospective change in or
affecting the condition (financial or otherwise), or the
earnings, business affairs, business prospects or properties
of GPA and its subsidiaries taken as a whole, that,
individually or in the aggregate, other than as set forth or
contemplated in the Form 20-F, the effect of which is material
and adverse and that makes it, in the judgment of the
Underwriter, impracticable or inadvisable to market the
Offered Certificates on the terms and in the manner
contemplated in the Prospectus.
(b) The Underwriter shall have received a letter, dated the
date of this Agreement, from KPMG Peat Marwick LLP in form and
substance reasonably satisfactory to the Underwriter.
(c) On the Closing Date, the Underwriter shall have received:
(1) The favorable opinions, dated as of the Closing
Date, of ▇▇▇▇▇▇▇ & ▇▇▇▇▇ ▇.▇.▇., ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇▇▇ and
▇▇▇▇, and ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, counsel for the Company, in form
and substance reasonably satisfactory to the Underwriter.
(2) The favorable opinion, dated as of the Closing
Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Senior Vice President - Legal
Affairs, of the Company, in form and substance reasonably
satisfactory to the Underwriter.
(3) The favorable opinion, dated as of the Closing
Date, of ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for
GPA Group and GPA Sub I, in form and substance reasonably
satisfactory to the Underwriter.
(4) The favorable opinion, dated as of the Closing
Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Irish counsel for GPA Group, in
form and substance reasonably satisfactory to the Underwriter.
(5) The favorable opinion, dated as of the Closing
Date, of ▇▇▇▇▇ & Case, counsel for DFO Partnership, as Owner
Participant, in form and substance reasonably satisfactory to
the Underwriter.
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(6) The favorable opinion, dated as of the Closing
Date of the general counsel or assistant general counsel for
DFO Partnership, as Owner Participant, in form and substance
reasonably satisfactory to the Underwriter.
(7) The favorable opinion, dated as of the Closing
Date, of Freshfields, counsel to GPA, regarding the Foreign
Financing Documents in form and substance reasonably
satisfactory to the Underwriter.
(8) The favorable opinion, dated as of the Closing
Date, of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇, counsel for The Chase
Manhattan Bank, as Indenture Trustee, in form and substance
reasonably satisfactory to the Underwriter.
(9) The favorable opinions, dated as of the Closing
Date, of ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for
Wilmington Trust Company, as Owner Trustee, in form and
substance reasonably satisfactory to the Underwriter.
(10) The favorable opinion, dated as of the Closing
Date, of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Fleet National
Bank, as Pass Through Trustee under each Trust, in form and
substance reasonably satisfactory to the Underwriter.
(11) The favorable opinion, dated as of the Closing
Date, of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Fleet National
Bank, as Subordination Agent, in form and substance reasonably
satisfactory to the Underwriter.
(12) The favorable opinion, dated as of the Closing
Date, of White & Case, counsel for Kredietbank N.V., acting
through its New York Branch, as Liquidity Provider, in form
and substance reasonably satisfactory to the Underwriter.
(13) The favorable opinion, dated as of the Closing
Date, of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Senior Legal Advisor for Kredietbank
N.V., acting through its New York branch, as Liquidity
Provider, in form and substance reasonably satisfactory to the
Underwriter.
(14) The favorable opinion, dated as of the Closing
Date, of ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special FAA counsel, in
form and substance reasonably satisfactory to the Underwriter.
(15) The favorable opinion, dated as of the Closing
Date, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special counsel to
the Underwriter, with respect to Section 1110 of the
Bankruptcy Code, in form and substance reasonably satisfactory
to the Underwriter.
(16) The favorable opinion, dated as of the Closing
Date, of Milbank, ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special counsel to
the Underwriter, with respect to
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the validity of the Offered Certificates, the Prospectus, and
other related matters as the Underwriter may require, and the
Company shall have furnished to such counsel such documents as
they reasonably request for the purpose of enabling them to
pass upon such matters.
(d) Each of the Appraisers shall have furnished to the
Underwriter a letter from such Appraiser, addressed to the Company and
dated the Closing Date, confirming that such Appraiser and each of its
directors and officers (i) is not an affiliate of the Company or any
of its affiliates, (ii) does not have any substantial interest, direct
or indirect, in the Company or any of its affiliates and (iii) is not
connected with the Company or any of its affiliates as an officer,
employee, promoter, underwriter, trustee, partner, director or person
performing similar functions.
(e) The Underwriter shall have received a certificate, dated
the Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which such
officers shall state that, to the best of their knowledge after
reasonable investigation, the representations and warranties of the
Company in this Agreement are true and correct on and as of the
Closing Date as if made on the Closing Date, that the Company has
complied with all agreements and satisfied all conditions on its part
to be performed or satisfied hereunder at or prior to the Closing
Date, and that, subsequent to the dates of the Company's most recent
interim financial statements there has been no Material Adverse
Change, except as set forth in or contemplated by the Prospectus.
(f) The Underwriter shall have received a certificate, dated
the Closing Date, of any authorized officer of each of GPA Group and
GPA Sub I in which such officers shall state that, to the best of
their knowledge after reasonable investigation, the representations
and warranties of each of GPA Group and GPA Sub I in this Agreement
are true and correct on and as of the Closing Date as if made on the
Closing Date, and that each of GPA Group and GPA Sub I has complied
with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date.
(g) The Underwriter shall have received a letter, dated the
Closing Date, of KPMG Peat Marwick LLP which meets the requirements of
subsection (b) of this Section 7.
(h) At the Closing Date, each of the Operative Documents
shall have been duly executed and delivered by each of the parties
thereto; the representations and warranties of the Company contained
in each of the Operative Documents to which it is a party shall be
true and correct as of the Closing Date (except to the extent that
they relate solely to an earlier date in which case they shall be true
and correct as of such earlier date) and the Underwriter shall have
received a certificate of a Vice President of the Company, dated as of
the Closing Date, to such effect. GPA agrees to furnish to the
Underwriter, promptly after the Closing Date, a copy of each opinion
required to be delivered under the applicable Operative Document
addressed to the
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Underwriter and of such other documents furnished in connection with
the fulfillment of the conditions precedent therein as the Underwriter
or special counsel to the Underwriter may reasonably request.
(i) Each of the Company and GPA shall have furnished or
caused to be furnished to the Underwriter prior to or at the Closing
Date, in form and substance satisfactory to the Underwriter and
special counsel to the Underwriter, such other information, documents,
certificates and opinions as the Underwriter, special counsel to the
Underwriter, or the Rating Agencies may reasonably request.
(j) On the Closing Date, the Class A Certificates shall be
rated [A2] by ▇▇▇▇▇'▇ and [AA-] by Standard & Poor's, the Class B
Certificates shall be rated [Baa2] by ▇▇▇▇▇'▇ and [A-] by Standard &
Poor's, the Class C Certificates shall be rated [Ba1] by ▇▇▇▇▇'▇ and
[BBB-] by Standard & Poor's and the Class D Certificates shall be
rated [Ba3] by ▇▇▇▇▇'▇ and [BB] by Standard & Poor's.
(k) On or prior to the Closing Date, the conditions precedent
set forth in Section 3 of each Refunding Agreement shall have been
fulfilled to the satisfaction of the Underwriter.
The Company will furnish the Underwriter with such conformed
copies of such agreements, opinions, certificates, letters and documents as the
Underwriter may reasonably request. The Underwriter may waive compliance with
any conditions to its obligations hereunder.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless the
Underwriter, and each Person, if any, who controls the Underwriter within the
meaning of either Section 15 of the Act, or Section 20 of the Exchange Act, or
is under common control with the Underwriter, from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred by the Underwriter or any such
controlling or affiliated person in connection with defending or investigating
any such action or claim) caused by any untrue statement or alleged untrue
statement of a material fact contained in the America West Information included
in the Registration Statement (as amended if any amendments thereto shall have
been prepared), or caused by any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, or caused by any untrue statement or alleged
untrue statement of a material fact contained in the America West Information
included in the Preliminary Prospectus or the Prospectus (as amended or
supplemented, if any amendments or supplements thereto shall have been
prepared), or caused by any omission or alleged omission to state therein a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided,
however, that the Company shall not be liable in any such case to the extent
that any such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with information furnished by the Underwriter
in writing in a letter delivered on the Closing Date to the Company and GPA
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expressly for use therein (the "Underwriter Information"); provided, further,
that the Company shall not be liable in any such case to the extent that any
such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon the
GPA Information or the Statement of Eligibility under the Trust Indenture Act
on Form T-1 filed as part of the Registration Statement; provided, further,
that with respect to any untrue statement or omission or alleged untrue
statement or omission in any Prospectus such indemnity with respect to such
Prospectus shall not inure to the benefit of the Underwriter (or any person
controlling or under common control with the Underwriter) from whom the Person
asserting any such loss, claim, damage or liability purchased the Offered
Certificates which are the subject thereof if such untrue statement or omission
or alleged untrue statement or omission was remedied or eliminated in a
subsequent Prospectus and if the Underwriter failed to deliver a copy of such
subsequent Prospectus to such Person prior to or together with written
confirmation of the sale of Offered Certificates to such Person, unless such
failure to deliver the Prospectus was a result of noncompliance by the Company
with the delivery requirements set forth in Section 5 hereof.
(b) The GPA Group and GPA Sub I, jointly and severally, agree
to indemnify and hold harmless, the Underwriter, and each Person, if any, who
controls the Underwriter within the meaning of either Section 15 of the Act, or
Section 20 of the Exchange Act, or is under common control with the
Underwriter, from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred by the Underwriter or any such controlling or affiliated
person in connection with defending or investigating any such action or claim)
caused by any untrue statement or alleged untrue statement of a material fact
contained in the GPA Information included in the Registration Statement (as
amended if any amendments thereto shall have been prepared), or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
caused by any untrue statement or alleged untrue statement of a material fact
contained in the GPA Information included in the Preliminary Prospectus or the
Prospectus (as amended or supplemented if any amendments or supplements thereto
shall have been prepared), or caused by any omission or alleged omission to
state therein a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that GPA shall not be liable in any such case to
the extent that any such losses, claims, damages or liabilities are caused by
any such untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with the Underwriter Information;
provided, further, that GPA shall not be liable in any such case to the extent
that any such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
the America West Information; provided, further, that with respect to any
untrue statement or omission or alleged untrue statement or omission in any
Prospectus such indemnity with respect to such Prospectus shall not inure to
the benefit of the Underwriter (or any person controlling or under common
control with the Underwriter) from whom the Person asserting any such loss,
claim, damage or liability purchased the Offered Certificates which are the
subject thereof if such untrue statement or omission or alleged untrue
statement or omission was remedied or eliminated in a subsequent Prospectus and
if the Underwriter failed to deliver a copy of such subsequent Prospectus to
such Person prior to or together with written confirmation of the sale of
Offered Certificates to such Person, unless such failure to deliver the
Prospectus was a
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result of noncompliance by the Company with the delivery requirements set forth
in Section 5 hereof.
(c) The Underwriter agrees to indemnify and hold harmless the
Company, the GPA Group and GPA Sub I, each of their directors, each of their
officers who signed the Registration Statement and each Person, if any, who
controls the Company, the GPA Group or GPA Sub I within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act, or is under common
control with the Company, the GPA Group or GPA Sub I, to the same extent as the
foregoing indemnities from the Company, the GPA Group and GPA Sub I to the
Underwriter, but only with reference to the Underwriter Information.
(d) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to paragraphs (a), (b) or (c) above, such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding
and shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such fees and expenses
shall be reimbursed as they are incurred. Such firm shall be designated in
writing by the Underwriter, in the case of parties indemnified pursuant to
paragraphs (a) or (b) above, and by the Company, the GPA Group or GPA Sub I, as
the case may be, in the case of parties indemnified pursuant to paragraph (c)
above; provided, however, that if the indemnified parties consist of the
Company, the GPA Group or GPA Sub I, each such indemnified party shall have the
right to select its own counsel in the circumstances described in clauses (i)
and (ii) above. The indemnifying party shall not be liable for any settlement
of any proceeding effected without its written consent, but if settled with
such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment to the extent
provided herein. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
(e) To the extent the indemnification provided for in
paragraph (a) or (c) of this Section 8 is unavailable to an indemnified party
referred to in either such paragraph or
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insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under the applicable paragraph, in
lieu of indemnifying such indemnified party thereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by (A) the Company on the one hand, and
(B) the Underwriter on the other hand, from the offering of the Offered
Certificates or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of (A) the Company and (B) the Underwriter, in connection with
the statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company in connection with the offering of
the Offered Certificates shall be deemed to be in the same proportion as the
net proceeds from the offering of the Offered Certificates (after deducting the
aggregate underwriting commissions received by the Underwriter but before
deducting other fees and expenses) received by the Trustees in respect thereof,
as set forth in the Prospectus, bears to the aggregate public offering price of
such Offered Certificates. The relative benefits received by the Underwriter
in connection with the offering of the Offered Certificates shall be deemed to
be in the same proportion as the aggregate underwriting commissions received by
the Underwriter in respect thereof, as set forth in the Prospectus, bears to
the aggregate public offering price of the Offered Certificates. The relative
fault of the Company or the Underwriter shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by (a) the Company or (b) the Underwriter, and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. For purposes of the
preceding sentence, the Company shall be deemed to have supplied the America
West Information and the Underwriter shall be deemed to have supplied the
Underwriter Information.
(f) To the extent the indemnification provided for in
paragraph (b) or (c) of this Section 8 is unavailable to an indemnified party
referred to in either such paragraph or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then each indemnifying
party under the applicable paragraph, in lieu of indemnifying such indemnified
party thereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(i) in such proportion as is appropriate to reflect the relative benefits
received by (A) GPA on the one hand, and (B) the Underwriter collectively on
the other hand, from the offering of the Offered Certificates or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of (A) GPA and (B)
the Underwriter, in connection with the statements or omissions that resulted
in such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by GPA in connection
with the offering of the Offered Certificates shall be deemed to be in the same
proportion as the net proceeds from the offering of the Offered Certificates
(after deducting the aggregate underwriting commissions received by the
Underwriter but before deducting other fees and expenses) received by the
Trustees in respect thereof, as set forth in the Prospectus, bears to the
aggregate public offering price of such Offered Certificates. The
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25
relative benefits received by the Underwriter in connection with the offering
of the Offered Certificates shall be deemed to be in the same proportion as the
aggregate underwriting commissions received by the Underwriter in respect
thereof, as set forth in the Prospectus, bears to the aggregate public offering
price of the Offered Certificates. The relative fault of GPA or the
Underwriter shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
(a) GPA or (b) the Underwriter, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. For purposes of the preceding sentence, GPA shall be deemed to have
supplied the GPA Information and the Underwriter shall be deemed to have
supplied the Underwriter Information.
(g) The Company, GPA and the Underwriter agree that it would
not be just or equitable if contribution pursuant to this Section 8 were
determined by pro rata allocation or by any other method of allocation that
does not take account of the equitable considerations referred to in paragraphs
(e) and (f) above. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in paragraphs
(e) and (f) above shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 8, the Underwriter
shall not be required to contribute any amount in excess of the amount by which
the total price at which the Offered Certificates underwritten by the
Underwriter and distributed to the public were offered to investors exceeds the
amount of any damages that the Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(h) The indemnity and contribution provisions contained in
this Section 8 shall remain operative and in full force and effect regardless
of (i) any termination of this Agreement, (ii) any investigation made by or on
behalf of the Underwriter or any person controlling the Underwriter or by or on
behalf of or the Company, the GPA Group or GPA Sub I, their respective officers
or directors or any person controlling the Company, the GPA Group or GPA Sub I
and (iii) acceptance of and payment for any of the Offered Certificates. The
remedies provided for in this Section 8 are not exclusive and shall not limit
any rights or remedies which may otherwise be available to any indemnified
party at law or in equity.
9. Survival of Certain Agreements, Etc. and Certain
Reimbursement Obligations. The respective agreements, covenants,
representations, warranties and other statements of the Company or GPA or of
their respective officers and of the Underwriter set forth in or made pursuant
to this Agreement will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf of
the Underwriter, GPA or the Company or any of their respective representatives,
officers or directors or any controlling person and will survive delivery of
and payment for the Offered Certificates. If for any reason the purchase of
the Offered Certificates by the Underwriter is not consummated, GPA shall be
responsible for all of the expenses to be paid or reimbursed pursuant to
Section 6, and the obligations of GPA and the Company and the Underwriter
25
26
pursuant to Section 8 shall remain in effect. If the purchase of the Offered
Certificates by the Underwriter is not consummated for any reason other than
solely because of the occurrence of the termination of the Agreement pursuant
to Section 10, GPA shall reimburse the Underwriter for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) reasonably
incurred by it in connection with the offering of such Offered Certificates and
comply with its obligations under Section 6.
10. Termination. This Agreement shall be subject to
termination by notice given by the Underwriter to the Company, if (a) after the
execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on or by, as
the case may be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board
of Trade, (ii) trading of any securities of the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities, or (iv) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the judgment of the
Underwriter, is material and adverse and (b) in the case of any of the events
specified in clause (a), such event singly or together with any other such
event makes it, in the judgment of the Underwriter, impracticable or
inadvisable to market the Offered Certificates on the terms and in the manner
contemplated in the Prospectus.
11. Notices. All communications hereunder will be in writing
and will be mailed, delivered or sent by facsimile transmission and confirmed
(a) if to the Underwriter, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, at ▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Equipment Finance Group, facsimile number
▇▇▇-▇▇▇-▇▇▇▇; (b) if to the Company, at ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Senior Vice President-Legal Affairs,
facsimile number ▇▇▇-▇▇▇-▇▇▇▇; (c) if to GPA Group, GPA Group plc, 4th Floor,
GPA House, Shannon, Co. ▇▇▇▇▇, Ireland, Attention: Company Secretary,
facsimile number ▇▇▇-▇▇-▇▇▇▇▇▇; and (d) if to GPA Sub I, GPA Leasing USA Sub I,
Inc., at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
President, facsimile number ▇▇▇-▇▇▇-▇▇▇▇.
12. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
controlling persons referred to in Section 8, and no other person will have any
right or obligation hereunder.
13. Counterparts. This Agreement may be executed in any
number of counterparts, each of which will be deemed to be an original, but all
such counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW.
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15. Submission to Jurisdiction; Appointment of Agent for
Service; Obligation Currency. Any suit, action or proceeding against any party
to this Agreement arising out of or relating to this Agreement, any transaction
contemplated hereby or any judgment entered by any court in respect thereof may
be brought in any New York State court located in the County of New York or
Federal court sitting in the Second Circuit, and each such party hereby submits
to the nonexclusive jurisdiction of such courts for the purpose of any such
suit, action or proceeding. To the extent that service of process by mail is
permitted by applicable law, each party hereto irrevocably consents to the
service of process in any such suit, action or proceeding in such courts by the
mailing of such process by registered or certified mail, postage prepaid, at
its address for notices provided for above. Each party to this Agreement
irrevocably agrees not to assert any objection which it may ever have to the
laying of venue of any such suit, action or proceeding in any New York State
court located in the County of New York or Federal court sitting in the Second
Circuit, or any claim that any such suit, action or proceeding brought in any
such court has been brought in an inconvenient forum. To the fullest extent
permitted by applicable law, each party to this Agreement waives any right it
may have to a trial by jury in respect of any litigation directly or indirectly
arising out of, under or in connection with this Agreement. The Company
irrevocably designates and appoints ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and GPA Group and GPA
Sub I each irrevocably designates and appoints ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇.
▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇, (collectively, the "Process Agents"), as the authorized
agents of the Company, GPA Group and GPA Sub I, respectively, upon whom process
may be served in any such suit, action or proceeding, it being understood that
the designation and appointment of the Process Agents as such authorized agent
shall become effective immediately without any further action on the part of
the Company, GPA Group or GPA Sub I. Each of the Company, GPA Group and GPA
Sub I represents to the Underwriter that it has notified its Process Agent of
such designation and appointment and that such Process Agent has accepted the
same in writing. Each of the Company, GPA Group and GPA Sub I hereby
irrevocably authorizes and directs its Process Agent to accept such service.
Each of the Company, GPA Group and GPA Sub I further agrees that service of
process upon its Process Agent and written notice of said service to the
Company, GPA Group or GPA Sub I, as the case may be, mailed by first class mail
or delivered to such Process Agent, shall be deemed in every respect effective
service of process upon the Company, GPA Group or GPA Sub I, as the case may
be, in any such suit, action or proceeding. Nothing herein shall affect the
right of the Underwriter or any person controlling the Underwriter to serve
process in any other manner permitted by law. Each of the Company, GPA Group
and GPA Sub I agrees that a final action in any such suit or proceeding shall
be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other lawful manner. If the Company, GPA Group or GPA Sub
I, as the case may be, has or may hereafter acquire immunity from jurisdiction
or legal process or from attachment in aid of execution or from execution with
respect to itself or its property, the Company, GPA Group or GPA Sub I, as the
case may be, hereby irrevocably waives to the fullest extent permitted under
applicable law such immunity in respect of its obligations hereunder in any
action, suit or proceeding which may be instituted in any New York State court
located in the County of New York or Federal court sitting in the Second
Circuit by the Underwriter or by any persons controlling the Underwriter within
the meaning of Section 15 of the Securities Act or any director, officer,
employee or agent of the Underwriter. This
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waiver is intended to be effective upon the execution of this Agreement without
any further act by the Company, GPA Group or GPA Sub I, as the case may be,
before any such court, and the introduction of a true copy of this Agreement
into evidence in any such court shall, to the fullest extent permitted by
applicable law, be conclusive and final evidence of such waiver.
The obligation of the parties hereto to make payments
hereunder is in U.S. dollars (the "Obligation Currency") and such obligation
shall not be discharged or satisfied by any tender or recovery pursuant to any
judgment expressed in or converted into any currency other than the Obligation
Currency or any other realization in such other currency, whether as proceeds
of set-off, security, guarantee, distributions, or otherwise, except to the
extent to which such tender, recovery or realization shall result in the
effective receipt by the party which is to receive such payment of the full
amount of the Obligation Currency expressed to be payable hereunder.
_____________________________
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If the foregoing is in accordance with the Underwriter's
understanding of our agreement, please sign and return to the Company a
counterpart hereof, whereupon this instrument will become a binding agreement
among the Underwriter, the Company, GPA Group and GPA Sub I in accordance with
its terms.
Very truly yours,
AMERICA WEST AIRLINES, INC.
By:
--------------------------
Name:
Title:
GPA GROUP PLC
By:
--------------------------
Name:
Title:
GPA LEASING USA SUB I, INC.
By:
--------------------------
Name:
Title:
Accepted as of the date first above written:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
By:
-----------------------------
Name:
Title:
30
SCHEDULE I
Principal Amount of Principal Amount of Principal Amount of Principal Amount of
Pass Through Pass Through Pass Through Pass Through
Certificates of the Certificates of the Certificates of the Certificates of the
Class A Trust Class B Trust Class C Trust Class D Trust
------------------- ------------------- ------------------- -------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. $ $ $ $
Incorporated
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SCHEDULE II
Pass Through Aggregate
Certificate Principal Interest Final Expected
Designation Amount Rate Distribution Date Commissions* Commissions**
------------ --------- -------- ----------------- ----------- -----------
1997-1A $ % % $
1997-1B
1997-1C
1997-1D
Total $
=
-----------------------
* Expressed as a percentage of Aggregate Principal Amount.
** Expressed in dollars.
32
ANNEX 1
For purposes of the Underwriting Agreement, "America West
Information" shall consist of the following information in the Registration
Statement and the Prospectus:
(a) The information on the cover page of the Registration
Statement.
(b) The information contained in the last two paragraphs
on page 2 of the Prospectus.
(c) The information under the headings "Available
Information and Reports to Certificateholders," "Incorporation of Certain
Documents by Reference" and "Forward Looking Information".
(d) The information under the headings "Prospectus
Summary--The Company," "--Strategy," "--The Offering--Equipment Notes--(e)
Section 1110 Protection," "--Federal Income Tax Consequences,""--ERISA
Considerations" and "--Summary Financial and Operating Data".
(e) The information under the headings "Risk
Factors--Company Related Risks" and "--Industry Related Risks."
(f) The information under the headings "Risk
Factors-Factors Relating to the Certificates and the Offering--Repossession,"
"--Maintenance," "--Insurance" and "--Absence of a Public Market for the
Certificates."
(g) The information under the headings "Ratio of Earnings
to Fixed Charges," "Capitalization," "Selected Financial and Operating Data,"
"Management's Discussion and Analysis of Financial Condition and Results of
Operations," "Business," "Management" and "Certain Transactions."
(h) The information contained in fifth, sixth and seventh
paragraphs under the heading "Description of the Equipment Notes--Remedies."
(i) The information under the heading "Description of the
Equipment Notes--Modification of Indentures and Leases" and
"--Indemnification," but only to the extent such information thereunder
concerns the Leases and not the Indentures.
(j) The information under the heading "Description of the
Equipment Notes--The Leases."
(k) The information under the headings "Certain U.S.
Federal Income Tax Consequences," "ERISA Considerations," "Underwriting"
(excluding the sixth paragraph thereof relating to indemnification and
reimbursement of the Underwriter) and "Legal Matters."
(l) The information under the first two paragraphs under
the heading "Experts."
(m) The information under the headings "Index to
Financial Statements," including the condensed financial statements of the
Company, the financial statements of the Company and the "Independent Auditors'
Report" that follow such index.
(n) All annual, quarterly and other reports, exhibits and
other documents incorporated by reference in the Registration Statement and the
Prospectus.
(o) The information included in Part II of the
Registration Statement, excluding the information under "Item 14. Other
Expenses of Issuance and Distribution".
For purposes of the Underwriting Agreement, "GPA Information" shall
consist of all of the information in the Registration Statement and the
Prospectus other than the America West Information.
