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EXHIBIT 4.19
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REFUNDING AGREEMENT
[GPA 1991 AWA-E1]
Dated as of November 20, 1996
among
AMERICA WEST AIRLINES, INC.,
as Lessee
GPA LEASING USA I, INC.,
as Original Head Lessee
GPA GROUP plc,
as Parent Guarantor
WILMINGTON TRUST COMPANY,
not in its individual capacity
except as expressly provided herein
but solely as Owner Trustee
FLEET NATIONAL BANK,
not in its individual capacity
except as expressly provided herein
but solely as Pass Through Trustee under each of the
Pass Through Trust Agreements
[______________________],
as Owner Participant
FLEET NATIONAL BANK,
as Subordination Agent
and
FLEET NATIONAL BANK,
not in its individual capacity
except as expressly provided herein
but solely as Indenture Trustee
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Secured Equipment Notes Covering
One IAE International Aero Engines AG V2500-A1 Engine
Manufacturer's Serial No. V0025
Leased by America West Airlines, Inc.
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TABLE OF CONTENTS
PAGE
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SECTION 1. Purchase of Equipment Notes; Refunding . . . . . . . . . . . . 4
SECTION 2. Equipment Notes . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 3. Conditions Precedent . . . . . . . . . . . . . . . . . . . . . 7
SECTION 4. Certain Conditions Precedent to the Obligations of the
Original Head Lessee and the Parent Guarantor; Certain
Conditions Precedent to the Obligations of the Lessee;
Conditions Precedent with respect to the Pass Through Trustee 14
SECTION 5. Amendment and Restatement of the Original Indenture . . . . . . 17
SECTION 6. Amendment and Restatement of the Original Lease . . . . . . . . 17
SECTION 7. Termination of the Participation Agreement; Termination of
Sublease, etc . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 8. Representations and Warranties of the Lessee . . . . . . . . . 18
SECTION 9. Representations and Warranties . . . . . . . . . . . . . . . . 22
SECTION 10. Transfer of Owner Participant's Interest . . . . . . . . . . . 36
SECTION 11. [Reserved] . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 12. Quiet Enjoyment . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 13. Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 14. Certain Additional Provisions Relating
to Original Head Lessee, Parent Guarantor, Trust Company,
Owner Trustee and Owner Participant . . . . . . . . . . . . . 41
SECTION 15. Certain Retained Rights and Releases . . . . . . . . . . . . . 43
SECTION 16. Certain Additional Obligations of the Lessee,
the Owner Trustee, the Owner Participant and the Indenture
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 17. Lessee Protection of Title . . . . . . . . . . . . . . . . . . 45
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PAGE
SECTION 18. Jurisdictional and Related Matters . . . . . . . . . . . . . . 46
SECTION 19. Limitation on Recourse . . . . . . . . . . . . . . . . . . . . 47
SECTION 20. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 21. Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 22. Reliance of Liquidity Provider . . . . . . . . . . . . . . . . 48
SECTION 23. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 24. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . 50
Schedules
Schedule I Pass Through Trust Agreements
Schedule II Equipment Notes, Pass Through Trusts and Purchase Price
Schedule III Holders of Equipment Notes - Payment Instructions
Exhibits
Exhibit A Form of Transferee's Parent Guarantee
Exhibit B Form of Assignment and Assumption Agreement
Exhibit C List of Countries
Exhibit D Form of Insurance Broker's Report
Exhibit E Form of Opinions of Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and
Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ addressed to Parent
Guarantor
Exhibit F Form of Opinions of Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and
Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ addressed to Lessee
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REFUNDING AGREEMENT
[GPA 1991 AWA-E1]
REFUNDING AGREEMENT [GPA 1991 AWA-E1] (this "Agreement"), dated as of
November 20, 1996, among (i) AMERICA WEST AIRLINES, INC., a Delaware
corporation (the "Lessee"), (ii) GPA LEASING USA I, INC., a Connecticut
corporation (the "Original Head Lessee"), (iii) GPA GROUP plc, an Irish public
limited company (the "Parent Guarantor"), (iv) [___________________], (the
"Owner Participant"), (v) WILMINGTON TRUST COMPANY, a Delaware banking
corporation (the "Trust Company"), not in its individual capacity except as
otherwise expressly provided herein, but solely as owner trustee (the "Owner
Trustee") under the Trust Agreement (as defined below), (vi) FLEET NATIONAL
BANK, a national banking association, not in its individual capacity except as
otherwise expressly provided herein, but solely as pass through trustee (in such
capacity, the "Pass Through Trustee") under each of the five separate Pass
Through Trust Agreements (as defined below), (vii) FLEET NATIONAL BANK, not in
its individual capacity, but solely as subordination agent and trustee (in such
capacity, the "Subordination Agent") under the Intercreditor Agreement (as
defined below), and (viii) FLEET NATIONAL BANK (formerly known as Fleet National
Bank of Connecticut, Shawmut Bank Connecticut, National Association, and The
Connecticut National Bank), a national banking association, not in its
individual capacity except as otherwise expressly provided herein, but solely as
Indenture Trustee (the "Indenture Trustee") under the Indenture (as defined
below).
Except as otherwise defined in this Agreement, the terms used herein
in capitalized form shall have the meanings attributed thereto in the Indenture
(whether set forth therein or by reference to another document) as if the
Restatement Date had occurred.
W I T N E S S E T H:
WHEREAS, the Original Head Lessee, the Parent Guarantor, the Owner
Participant, Sanwa International PLC, as Lender (and predecessor in interest to
the Mitsubishi Trust and Banking Corporation, New York Branch, and The
Hachijuni Bank, Ltd., New York Branch, collectively, the "Lenders"), the Owner
Trustee and the Indenture Trustee entered into the Participation Agreement [GPA
1991 AWA-E1], dated as of March 15, 1991 (as amended, supplemented or otherwise
modified from time to time, the "Participation Agreement"), providing for the
financing of one IAE International Aero Engines AG V2500-A1 Engine (the
"Engine");
WHEREAS, concurrently with the execution and delivery of the
Participation Agreement, the Owner Trustee and the Indenture Trustee entered
into the Trust Indenture and Security Agreement [GPA 1991 AWA-E1], dated as of
September 21, 1990, as supplemented by Trust Indenture Supplement No. 1 dated
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September 28, 1990, as amended by Amendment No. 1 to Trust Indenture and
Security Agreement dated March 27, 1992, and as further amended by Amendment
No. 2 to Trust Indenture and Security Agreement dated as of July 29, 1993 (as
so amended, supplemented or otherwise modified to the date hereof, the
"Original Indenture"), pursuant to which the Owner Trustee issued loan
certificates substantially in the form set forth in Section 2.02 thereof (the
"Original Certificates") to the Lenders as evidence of the indebtedness then
being made by the Owner Trustee to finance a portion of the purchase of the
Engine;
WHEREAS, concurrently with the execution and delivery of the
Participation Agreement, the Owner Trustee and the Original Head Lessee entered
into the Engine Lease Agreement [GPA 1991 AWA-E1], dated as of September 21,
1990, as supplemented by Lease Supplement [GPA 1991 AWA-E1] No. 1 dated
September 28, 1990 (as so supplemented, the "Original Lease"), whereby, subject
to the terms and conditions set forth therein, the Owner Trustee agreed to
lease to the Original Head Lessee, and the Original Head Lessee agreed to lease
from the Owner Trustee, the Engine commencing on the Delivery Date (as therein
defined);
WHEREAS, concurrently with the execution and delivery of the
Participation Agreement, the Parent Guarantor entered into the Parent Head
Lease Guaranty [GPA 1991 AWA-E1] dated as of March 15, 1991 (the "Parent Head
Lease Guaranty") for the benefit of the Owner Trustee pursuant to which the
Parent Guarantor guaranteed all of the obligations of the Original Head Lessee
under the Operative Documents (as defined in the Participation Agreement);
WHEREAS, concurrently with the execution and delivery of the
Participation Agreement, the Owner Participant and the Trust Company entered
into the Trust Agreement [GPA 1991 AWA-E1], dated as of March 15, 1991, as
supplemented by Trust Agreement Supplement [GPA 1991 AWA-E1] No. 1 dated March
27, 1991 (as amended, supplemented or otherwise modified to the date hereof,
the "Original Trust Agreement"), pursuant to which the Owner Trustee agreed,
among other things, to hold the Trust Estate defined in Section 1.1 thereof for
the benefit of the Owner Participant thereunder;
WHEREAS, concurrently with the execution and delivery of the
Participation Agreement, the Owner Participant and the Original Head Lessee
entered into the Head Lease Tax Indemnification Agreement [GPA 1991 AWA-E1],
dated as of March 15, 1991 (as amended, supplemented or otherwise modified to
the date hereof, the "Head Lease TIA");
WHEREAS, prior to the execution and delivery of the Participation
Agreement, the Original Head Lessee in its capacity as sublessor (in such
capacity, the "Sublessor") and America West Airlines, Inc. in its capacity as
sublessee (in such capacity,
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the "Sublessee") entered into the Engine Sublease Agreement [GPA 1991 AWA-E1]
dated as of December 12, 1990, as supplemented by ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇
[▇▇▇ ▇▇▇▇ ▇▇▇-▇▇] dated February 8, 1991 (as amended, supplemented or otherwise
modified to the date hereof, the "Sublease"), whereby, subject to the terms and
conditions set forth therein, the Sublessor agreed to sublease to the
Sublessee, and the Sublessee agreed to sublease from the Sublessor, the Engine
commencing on the Delivery Date (as defined therein);
WHEREAS, concurrently with the execution and delivery of the Original
Lease, the Original Head Lessee and the Sublessee entered into the Sublease Tax
Indemnification Agreement [GPA 1991 AWA-E1], dated as of March 15, 1991 (as
amended, modified or otherwise supplemented to the date hereof, the "Sublease
TIA");
WHEREAS, concurrently with the execution and delivery of the Original
Lease, the Sublessor and the Owner Trustee entered into the Assignment of
Sublease [GPA 1991 AWA-E1] dated as of March 15, 1991 (as amended, modified or
otherwise supplemented to the date hereof, the "Assignment of Sublease");
WHEREAS, at the Closing (as defined below), the Owner Trustee and the
Indenture Trustee will amend and restate the Original Indenture as the First
Amended and Restated Trust Indenture and Security Agreement [GPA 1991 AWA-E1],
dated as of the Restatement Date, as supplemented by Trust Indenture Supplement
No. 2 dated the Restatement Date (the "First Amended and Restated Indenture"
and, the First Amended and Restated Indenture as so amended and restated, the
"Indenture"), under which Indenture the Owner Trustee will issue secured
equipment notes substantially in the form set forth in Section 2.01 thereof
(the "Equipment Notes") in five series the proceeds from the issuance and sale
of which will be applied in part to the prepayment in full of the Original
Certificates;
WHEREAS, at the Closing, the Owner Trustee, the Original Head Lessee,
the Sublessee and the Indenture Trustee will enter into Assumption and
Amendment No. 1 and [Sublease] Termination Agreement dated as of the
Restatement Date ("Lease Amendment No. 1") containing assignments,
modifications and terminations necessary to give effect to the transactions
described herein and providing, inter alia, for the amendment and restatement
in its entirety of the Original Lease as the Amended and Restated Lease (as so
amended and restated, the "Lease");
WHEREAS, at the Closing, the Owner Participant and the Owner Trustee
will enter into Trust Agreement Supplement [GPA 1991 AWA-E1] No. 2 ("Trust
Supplement No. 2"), amending the Original Trust Agreement (as so amended and as
further amended, supplemented or otherwise modified from time to time in
accordance with the terms thereof and hereof, the "Trust Agreement");
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WHEREAS, at the Closing, the Owner Participant and the Original Head
Lessee will enter into the Amended and Restated Head Lease Tax Indemnification
Agreement, amending and restating the Head Lease TIA (as so amended and
restated, the "Amended and Restated Head Lease TIA") and the Sublessor and the
Sublessee will enter into the Amended and Restated Sublease Tax Indemnification
Agreement amending and restating the Sublease TIA (as so amended and restated,
the "Amended and Restated Sublease TIA");
WHEREAS, pursuant to the Pass Through Trust Agreement and each of the
Pass Through Trust Supplements set forth in Schedule I hereto (collectively,
the "Pass Through Trust Agreements"), on the Restatement Date, five separate
grantor trusts (collectively, the "Pass Through Trusts" and, individually, a
"Pass Through Trust") will be created to facilitate certain of the transactions
contemplated hereby, including, without limitation, the issuance and sale by
each Pass Through Trust of pass through certificates pursuant thereto
(collectively, the "Certificates");
WHEREAS, the proceeds from the issuance and sale of the Certificates
by each Pass Through Trust will be applied by the Pass Through Trustee at the
Closing to purchase from the Owner Trustee, on behalf of each Pass Through
Trust, all of the Equipment Notes bearing the same interest rate as the
Certificates issued by such Pass Through Trust;
WHEREAS, at the Closing, (i) Kredietbank N.V., New York Branch (the
"Liquidity Provider") will enter into three revolving credit agreements (each,
a "Liquidity Facility"), for the benefit of the Holders of Equipment Notes of
each of three Pass Through Trusts, with the Subordination Agent, as agent for
the Pass Through Trustee on behalf of each such Pass Through Trust; and (ii)
the Pass Through Trustee, the Liquidity Provider and the Subordination Agent
will enter into the Intercreditor Agreement, dated as of the Restatement Date
(the "Intercreditor Agreement"); and
WHEREAS, the Equipment Notes will be held by the Subordination Agent
pursuant to the Intercreditor Agreement on behalf of the Pass Through Trusts;
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual agreements herein contained and other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. Purchase of Equipment Notes; Refunding. (a) Subject to
the satisfaction or waiver of the conditions set forth herein, on November 26,
1996 or on such other date agreed to by the parties hereto (the "Restatement
Date"), the following actions shall take place simultaneously:
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(i) (A) the Sublessee shall pay to the Sublessor as a payment of
Supplemental Rent under the Sublease all accrued and unpaid Rent under the
Sublease up to the Restatement Date, if any (less any amounts for which
Sublessee is indemnified by Sublessor) and (B) the Original Head Lessee
shall pay to the Owner Trustee, as a payment of Supplemental Rent under
the Original Lease, an amount equal to the accrued and unpaid interest on
the Original Certificates up to but not including the Restatement Date
plus an amount (the "Prepayment Amount") equal to all other amounts due to
the holders of the Original Certificates under the Amended and Restated
Indenture and the Operative Documents (as defined in the Amended and
Restated Indenture) payable on the Restatement Date under Section 2.12 of
the Amended and Restated Indenture;
(ii) the Pass Through Trustee for each Pass Through Trust shall pay
to the Owner Trustee the aggregate purchase price of the Equipment Notes
being issued to such Pass Through Trustee as set forth in clause (xii)
below;
(iii) the Owner Trustee (to the extent of proceeds received under
clauses (i) and (ii)) shall pay to the Indenture Trustee for the benefit
of the holders of the Original Certificates an amount equal to the
aggregate principal amount of the Original Certificates outstanding on the
Restatement Date, together with accrued and unpaid interest on the
Original Certificates up to but not including the Restatement Date plus
the Prepayment Amount;
(iv) the Indenture Trustee shall disburse to the holders of the
Original Certificates the amounts of principal, interest, Break Funding
Cost, if any, described in clause (iii) above, owing to them on the
Restatement Date with respect to the Original Certificates as a prepayment
of the Original Certificates;
(v) the Indenture Trustee shall receive the Original Certificates
for cancellation;
(vi) the Owner Trustee and the Indenture Trustee shall enter into the
Indenture (including Trust Indenture Supplement No. 2);
(vii) the Original Head Lessee, the Sublessee, the Owner Trustee
and the Indenture Trustee shall enter into Lease Amendment No. 1;
(viii) the Owner Participant and the Trust Company shall enter
into Trust Supplement No. 2;
(ix) the Original Head Lessee and the Owner Participant shall enter
into the Amended and Restated Head Lease TIA and
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the Sublessor and the Sublessee shall enter into the Amended and Restated
Sublease TIA;
(x) the Original Head Lessee, GPA Leasing USA Sub I, Inc., the
Parent Guarantor and the Lessee shall enter into an agreement in form and
substance reasonably satisfactory to each, inter alia, terminating certain
rights which the Parent Guarantor has to "put" the engine to the Lessee
and the obligation of the Lessee to accept and lease such engine (the "Put
Termination Agreement");
(xi) the Parent Guarantor and/or one or more of its affiliates and
the Lessee will enter into an agreement (the "Deed of Indemnity") pursuant
to which the Parent Guarantor and/or one or more of its affiliates, on the
one hand, and the Lessee, on the other, will indemnify each other with
respect to certain information included in the Prospectus and the
Registration Statement (as such terms are defined in the Underwriting
Agreement); and
(xii) the Owner Trustee shall issue, pursuant to Article II of
the Indenture, to the Subordination Agent on behalf of the Pass Through
Trustee for each of the Pass Through Trusts, Equipment Notes of the
maturity and aggregate principal amount, bearing the interest rate and for
the purchase price set forth on Schedule II hereto opposite the name of
such Pass Through Trust.
(b) The Owner Participant, by its execution and delivery hereof,
requests and directs the Owner Trustee to execute and deliver this Agreement
and, subject to the terms hereof, to take the actions contemplated herein.
(c) The closing (the "Closing") of the transactions described in
this Agreement shall take place at the offices of Milbank, Tweed, ▇▇▇▇▇▇ &
▇▇▇▇▇▇, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Restatement
Date, or at such other place as the parties hereto may agree.
(d) All payments pursuant to this Section 1 shall be made in
immediately available funds to such accounts and at such banks as the parties
hereto shall designate in writing not less than one Business Day prior to the
Restatement Date.
(e) In order to facilitate the transactions contemplated hereby, the
Original Head Lessee, GPA Leasing USA Sub I, Inc., the Parent Guarantor and the
Lessee have entered into the Underwriting Agreement, dated as of November 20,
1996 (the "Underwriting Agreement"), among such Persons and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Co., Citicorp Securities, Inc., ▇▇▇▇▇▇ Brothers, Inc. and Salomon Brothers Inc
(collectively, the "Underwriters"), and, subject to the terms and conditions
hereof, the Lessee will enter into each of the Pass Through Trust Agreements.
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SECTION 2. Equipment Notes. The Equipment Notes shall be payable
as to principal in accordance with the terms of the Indenture, and the
Equipment Notes shall provide for a fixed rate of interest per annum and shall
contain the terms and provisions provided for the Equipment Notes in the
Indenture. The Owner Trustee shall execute, and the Indenture Trustee shall
authenticate and deliver to the Pass Through Trustee for each Pass Through
Trust, a principal amount of Equipment Notes bearing the interest rate set
forth opposite the name of such Pass Through Trust on Schedule II hereto, which
Equipment Notes in the aggregate shall be in the principal amounts set forth on
Schedule II hereto. Subject to the terms hereof, of the Pass Through Trust
Agreements and of the other Operative Documents, all such Equipment Notes shall
be dated and authenticated as of the Restatement Date and shall bear interest
therefrom, shall be registered in such names as shall be specified by the
Subordination Agent and shall be paid in the manner and at such places as are
set forth in the Indenture.
SECTION 3. Conditions Precedent. The obligations of the Pass
Through Trustee to make the payments described in Section 1(a)(ii) and the
obligations of the Owner Trustee to make the payments described in Section
1(a)(iii) and the obligations of each of the Pass Through Trustee, the Owner
Trustee, the Owner Participant and the Indenture Trustee to participate in the
transactions contemplated by this Agreement on the Restatement Date are subject
to the fulfillment, prior to or on the Restatement Date, of the following
conditions precedent (except that paragraphs (a), (f) and (j) shall not be
conditions precedent to the obligations of the Owner Trustee hereunder,
paragraphs (g) and (l) shall not be conditions precedent to the obligations of
the Owner Participant hereunder and paragraphs (e) and (k) shall not be
conditions precedent to the obligations of the Indenture Trustee hereunder):
(a) The Owner Trustee shall have tendered the Equipment Notes to the
Indenture Trustee for authentication, and the Indenture Trustee shall have
authenticated such Equipment Notes and shall have tendered the Equipment
Notes to the Subordination Agent on behalf of the Pass Through Trustee in
accordance with Section 1.
(b) The Pass Through Trustee, the Owner Trustee and the Owner
Participant each shall have received executed counterparts of each of the
following documents and the Indenture Trustee shall have received executed
counterparts of items (1) through (7):
(1) this Agreement;
(2) Lease Amendment No. 1, the Lease and Lease Supplement No.
2;
(3) Trust Supplement No. 2;
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(4) the First Amended and Restated Indenture and Trust
Indenture Supplement No. 2;
(5) each of the Pass Through Trust Agreements and each Pass
Through Trust Supplement;
(6) the Intercreditor Agreement; and
(7) the Liquidity Facility for each of the Class A, Class B and
Class C Trusts (as defined in the Intercreditor Agreement).
(c) The Pass Through Trustee, the Indenture Trustee, the Owner
Trustee and the Owner Participant each shall have received the following:
(1) an incumbency certificate of each of the Original Head
Lessee, the Lessee and the Parent Guarantor as to the person or
persons authorized to execute and deliver this Agreement and each of
the other documents to be executed on behalf of such Person in
connection with the transactions contemplated hereby (including,
without limitation, each of the documents referred to herein) and as
to the signatures of such person or persons;
(2) a copy of the resolutions of the board of directors of each
of the Original Head Lessee, the Lessee and the Parent Guarantor or
the applicable committee thereof, certified by the Secretary or an
Assistant Secretary of such Person, duly authorizing the transactions
contemplated hereby and the execution, delivery and performance of
each of the documents required to be executed and delivered on behalf
of such Person in connection with the transactions contemplated
hereby;
(3) a copy of the certificate of incorporation of each of the
Original Head Lessee and the Lessee, certified by the Secretary of
State of its state of incorporation, a copy of the by-laws of each of
the Original Head Lessee and the Lessee, certified by the Secretary
or Assistant Secretary of such Person, and a certificate or other
evidence from the Secretary of State of its state of incorporation,
dated as of a date reasonably near the Restatement Date, as to its
due incorporation and good standing in such state; and
(4) a copy of the Memorandum and Articles of Association of the
Parent Guarantor certified to be true and correct by the Secretary or
an Assistant Secretary of the Parent Guarantor.
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(d) The Pass Through Trustee, the Indenture Trustee, the Owner
Trustee and the Owner Participant each shall have received, in the case of
(3) below, a certificate signed by an authorized officer of the Lessee
and, in the case of (1) and (2) below, a certificate signed by an
authorized officer of the Original Head Lessee, dated the Restatement
Date, certifying that:
(1) the Original Lease and the Original Indenture have each
been duly recorded, and the Original Trust Agreement has been duly
filed, with the FAA pursuant to the sections of Title 49 of the
United States Code relating to aviation (the "Federal Aviation Act");
(2) Lease Amendment No. 1, the Amended and Restated Lease,
Lease Supplement No. 2, the First Amended and Restated Indenture,
Trust Indenture Supplement No. 2 and Trust Supplement No. 2 covering
the Engine shall have been duly filed for recordation with the FAA
pursuant to the Federal Aviation Act; and
(3) the representations and warranties contained herein of the
Lessee are correct as of the Restatement Date, except to the extent
that such representations and warranties relate solely to an earlier
date (in which case such representations and warranties were correct
on and as of such earlier date).
(e) The Pass Through Trustee, the Owner Trustee and the Owner
Participant each shall have received the following:
(1) an incumbency certificate of the Indenture Trustee as to
the person or persons authorized to execute and deliver this
Agreement and each of the other documents to be executed on behalf of
the Indenture Trustee in connection with the transactions
contemplated hereby (including, without limitation, each of the
documents referred to herein) and as to the signatures of such person
or persons;
(2) a copy of the resolutions of the board of directors of the
Indenture Trustee, certified by the Secretary, an Assistant Secretary
or other appropriate officer of the Indenture Trustee, duly
authorizing the transactions contemplated hereby and the execution,
delivery and performance of each of the documents required to be
executed and delivered on behalf of the Indenture Trustee in
connection with the transactions contemplated hereby;
(3) a copy of the articles of association and by-laws of the
Indenture Trustee, each certified by the
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Secretary, an Assistant Secretary or other appropriate officer of the
Indenture Trustee; and
(4) a certificate signed by an authorized officer of the
Indenture Trustee, dated the Restatement Date, certifying that the
representations and warranties contained herein of the Indenture
Trustee are correct as though made on and as of the Restatement Date,
except to the extent that such representations and warranties relate
solely to an earlier date (in which case such representations and
warranties are correct on and as of such earlier date).
(f) The Pass Through Trustee, the Indenture Trustee and the Owner
Participant each shall have received the following:
(1) an incumbency certificate of the Owner Trustee as to the
person or persons authorized to execute and deliver this Agreement
and each of the other documents to be executed on behalf of the Owner
Trustee in connection with the transactions contemplated hereby
(including, without limitation, each of the documents referred to
herein) and as to the signatures of such person or persons;
(2) a copy of the resolutions of the board of directors of the
Owner Trustee, certified by the Secretary or an Assistant Secretary
of the Owner Trustee, duly authorizing the transactions contemplated
hereby and the execution, delivery and performance of each of the
documents required to be executed and delivered on behalf of the
Owner Trustee in connection with the transactions contemplated
hereby;
(3) a copy of the articles of association and by-laws of the
Owner Trustee, each certified by the Secretary or an Assistant
Secretary of the Owner Trustee; and
(4) a certificate signed by an authorized officer of the Owner
Trustee, dated the Restatement Date, certifying that the
representations and warranties contained herein of the Owner Trustee
are correct as though made on and as of the Restatement Date, except
to the extent that such representations and warranties relate solely
to an earlier date (in which case such representations and warranties
are correct on and as of such earlier date).
(g) The Pass Through Trustee, the Indenture Trustee and the Owner
Trustee each shall have received the following:
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(1) an incumbency certificate of the Owner Participant as to
the person or persons authorized to execute and deliver this
Agreement and each of the other documents to be executed on behalf of
the Owner Participant in connection with the transactions
contemplated hereby (including, without limitation, each of the
documents referred to herein) and as to the signatures of such person
or persons;
(2) a copy of the resolutions of the board of directors of the
Owner Participant or the applicable committee thereof, certified by
the Secretary or an Assistant Secretary of the Owner Participant,
duly authorizing the transactions contemplated hereby and the
execution, delivery and performance of each of the documents required
to be executed and delivered on behalf of the Owner Participant in
connection with the transactions contemplated hereby;
(3) a copy of the certificate of incorporation of the Owner
Participant, certified by the Secretary of State of its state of
incorporation, a copy of the by-laws of the Owner Participant,
certified by the Secretary or Assistant Secretary of the Owner
Participant, and a certificate or other evidence from the Secretary
of State of its state of incorporation, dated as of a date reasonably
near the Restatement Date, as to its due incorporation and good
standing in such state; and
(4) a certificate signed by an authorized representative of the
Owner Participant, dated the Restatement Date, certifying that the
representations and warranties contained herein of the Owner
Participant are correct as though made on and as of the Restatement
Date, except to the extent that such representations and warranties
relate solely to an earlier date (in which case such representations
and warranties are correct on and as of such earlier date).
(h) The Pass Through Trustee, the Indenture Trustee, the Owner
Trustee and the Owner Participant each shall have received from the Lessee
a report from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in substantially the form of Exhibit D
attached hereto.
(i) The Pass Through Trustee, the Indenture Trustee, the Owner
Trustee and the Owner Participant each shall have received an opinion
addressed to it from (i) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special counsel for the Lessee,
(ii) ▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P., special counsel for the Lessee, (iii) the
Senior Vice President-Legal Affairs of Lessee and (iv) ▇▇▇▇▇ & Roca,
special Arizona counsel for the Lessee, in each case in form and substance
satisfactory to each of them.
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(j) The Pass Through Trustee, the Indenture Trustee and the Owner
Participant each shall have received an opinion addressed to it from
Morris, James, Hitchens & ▇▇▇▇▇▇▇▇, special counsel for the Owner Trustee,
in form and substance satisfactory to each of them.
(k) The Pass Through Trustee, the Owner Trustee and the Owner
Participant each shall have received an opinion addressed to it from
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel for the Indenture Trustee, the
Subordination Agent and the Pass Through Trustee, in each case in form and
substance satisfactory to each of them.
(l) The Pass Through Trustee, the Indenture Trustee and the Owner
Trustee each shall have received an opinion addressed to it from (i)
Hunton & ▇▇▇▇▇▇▇▇, special counsel for the Owner Participant and (ii)
in-house counsel for the Owner Participant, in each case in form and
substance satisfactory to each of them.
(m) The Pass Through Trustee shall have received an opinion from (i)
White & Case, special counsel for the Liquidity Provider, and (ii)
in-house counsel for the Liquidity Provider, in each case in form and
substance satisfactory to the Pass Through Trustee.
(n) The Pass Through Trustee, the Owner Trustee, the Owner
Participant and the Indenture Trustee each shall have received an opinion
addressed to it from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel in
Oklahoma City, Oklahoma, in form and substance satisfactory to each of
them.
(o) The Pass Through Trustee, the Owner Trustee, the Owner
Participant and the Indenture Trustee each shall have received an opinion
addressed to it from Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special New
York counsel for the Original Head Lessee and the Parent Guarantor, in
form and substance satisfactory to each of them.
(p) The Pass Through Trustee, the Owner Trustee, the Owner
Participant and the Indenture Trustee each shall have received an opinion
addressed to it from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, special Irish counsel for the
Parent Guarantor, in form and substance satisfactory to each of them.
(q) The Original Head Lessee, the Lessee, GPA Leasing USA Sub I,
Inc. and the Parent Guarantor shall have entered into the Underwriting
Agreement and the Lessee shall have entered into each of the Pass Through
Trust Agreements, the Certificates shall have been issued and sold
pursuant to the Underwriting Agreement and the Pass Through Trust
Agreements, and the Underwriters shall have transferred to the Pass
Through Trustee in immediately available funds an
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amount equal to the aggregate purchase price of the Equipment Notes to be
purchased from the Owner Trustee.
(r) The Original Head Lessee and the Owner Participant shall each
have executed and delivered to the other the Amended and Restated Head
Lease TIA.
(s) The Sublessor and the Sublessee shall each have executed and
delivered to the other the Amended and Restated Sublease TIA.
(t) No change shall have occurred after the date of this Agreement
in applicable law or regulations thereunder or interpretations thereof by
appropriate regulatory authorities or any court that would make it illegal
for the Pass Through Trustee to make the payments described in Section
1(a)(ii) or for the Lessee, the Indenture Trustee, the Owner Trustee or
the Owner Participant or any other party hereto to participate in the
transactions contemplated by this Agreement on the Restatement Date.
(u) All approvals and consents of any trustee or holder of any
indebtedness or obligations of the Lessee which are required in connection
with the Pass Through Trustee's making of the payments described in
Section 1(a)(ii) or the Owner Trustee's or the Owner Participant's
participation in the transactions contemplated by this Agreement on the
Restatement Date shall have been duly obtained.
(v) Uniform Commercial Code financing, termination, amendment and
continuation statement or statements covering all of the security
interests created by or pursuant to the Indenture that are not covered by
the recording system established by the Federal Aviation Act shall have
been executed and delivered by the Original Head Lessee, the Lessee, the
Indenture Trustee and the Owner Trustee, as the case may be, and such
financing, termination, amendment and continuation statement or statements
or documents to the same purposes shall have been duly filed in all places
necessary or advisable, and any additional Uniform Commercial Code
financing, termination, amendment and continuation statements deemed
advisable by the Original Head Lessee, the Owner Participant or the
Indenture Trustee shall have been executed and delivered by the Original
Head Lessee, the Lessee, the Indenture Trustee or the Owner Trustee, as
the case may be, and duly filed in all places advisable.
(w) No change shall have occurred after the date of this Agreement
in applicable law or regulations thereunder or interpretations thereof by
appropriate regulatory authorities or any court that would adversely
affect the tax consequences of the transactions contemplated by this
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Agreement to the Owner Participant, the Owner Trustee or any of their
respective Affiliates.
(x) The Owner Trustee shall have received a letter of credit in the
amount of $1,000,000 from the Lessee in the form of Exhibit D-2 to the
Lease.
(y) The Owner Participant shall have received such other documents
and evidence with respect to each other party hereto as the Owner
Participant or its counsel may request in order to establish the due
consummation of the transactions contemplated by this Agreement, the
taking of all necessary action in connection therewith and compliance with
the conditions herein set forth.
Promptly following the recording of Lease Amendment No. 1, the
Amended and Restated Lease (including Lease Supplement No. 2) and the First
Amended and Restated Indenture (including Trust Indenture Supplement No. 2)
pursuant to the Federal Aviation Act, the Original Head Lessee will cause
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel in Oklahoma City, Oklahoma, to
deliver to the Pass Through Trustee, the Lessee, the Indenture Trustee, the
Owner Participant and the Owner Trustee an opinion as to the due recording of
Lease Amendment No. 1, the Amended and Restated Lease, Lease Supplement No. 2,
the First Amended and Restated Indenture, Trust Indenture Supplement No. 2 and
Trust Supplement No. 2.
SECTION 4. Certain Conditions Precedent to the Obligations of the
Original Head Lessee and the Parent Guarantor; Certain Conditions Precedent to
the Obligations of the Lessee; Conditions Precedent with respect to the Pass
Through Trustee. (a) The obligations of the Original Head Lessee and the
Parent Guarantor to participate in the transactions contemplated by this
Agreement on the Restatement Date, and to execute and deliver this Agreement
are subject to the fulfillment, prior to or on the Restatement Date, of the
following conditions precedent:
(i) Each of the Original Head Lessee and the Parent Guarantor shall
have received counterparts of the following documents executed by each of
the parties thereto other than the Original Head Lessee and the Parent
Guarantor:
(1) this Agreement;
(2) Lease Amendment No. 1, the Lease and Lease Supplement No.
2;
(3) the Amended and Restated Head Lease TIA;
(4) the Amended and Restated Sublease TIA;
(5) the Put Termination Agreement;
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(6) the Deed of Indemnity;
(7) the Underwriting Agreement; and
(8) Uniform Commercial Code termination statements relating to
the Original Head Lessee executed by the Owner Trustee.
(ii) Each of the Original Head Lessee and the Parent Guarantor shall
have received originals of the following documents:
(1) the incumbency certificate of the Lessee referred to in
Section 3(c)(1);
(2) the resolutions of the Lessee referred to in Section
3(c)(2);
(3) the documents referred to in Section 3(e), Section 3(f)
and Section 3(g);
(4) the opinions referred to in Section 3(i), Section 3(j),
Section 3(k), Section 3(l) and Section 3(n), in each case
addressed to each of the Original Head Lessee and the
Parent Guarantor and in form and substance satisfactory to
each of them;
(5) the opinions of Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and
Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ with respect to certain
matters relating to and described in the Prospectus, in
substantially the form of Exhibit E attached hereto; and
(6) the report referred to in Section 3(h) addressed to each of
the Original Head Lessee and the Parent Guarantor.
(iii) Each of the Original Head Lessee and the Parent Guarantor
shall have received such other documents and evidence with respect to each
other party hereto as each of them or its counsel may reasonably request
in order to establish the due consummation of the transactions
contemplated by this Agreement, the taking of all necessary action in
connection therewith and compliance with the conditions herein set forth.
(b) The obligations of the Lessee to make the payment described in
Section 1(a)(i)(A) (if any), to participate in the transactions contemplated by
this Agreement on the Restatement Date, and to execute and deliver each of the
Pass Through Trust Agreements are subject to the fulfillment, prior to or on
the Restatement Date, of the following conditions precedent:
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(i) The Lessee shall have received counterparts of the following
documents executed by each of the parties thereto other than Lessee:
(1) this Agreement;
(2) Lease Amendment No. 1, the Amended and Restated Lease and
Lease Supplement No. 2;
(3) the Amended and Restated Sublease TIA;
(4) the Put Termination Agreement;
(5) the Deed of Indemnity;
(6) the Pass Through Trust Agreements;
(7) the Underwriting Agreement; and
(8) Uniform Commercial Code termination statements relating to
the Sublease executed by the Original Head Lessee.
(ii) The Lessee shall have received originals of the following
documents:
(1) the incumbency certificate of the Original Head Lessee and
Parent Guarantor referred to in Section 3(c)(1);
(2) the resolutions of the Original Head Lessee and Parent
Guarantor referred to in Section 3(c)(2);
(3) the documents referred to in Section 3(e), Section 3(f) and
Section 3(g);
(4) the opinions referred to in Section 3(j), Section 3(k),
Section 3(l), Section 3(n), Section 3(o) and Section 3(p),
in each case addressed to Lessee and in form and substance
satisfactory to Lessee; and
(5) the opinions of Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and
Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ with respect to certain
matters relating to and described in the Prospectus in
substantially the form of Exhibit F attached hereto.
(iii) The Lessee shall have received such other documents and
evidence with respect to each other party hereto as Lessee or its counsel
may reasonably request in order to establish the due consummation of the
transactions
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contemplated by this Agreement, the taking of all necessary action in
connection therewith and compliance with the conditions herein set forth.
(c) The respective obligations of each of the Lessee, the Pass
Through Trustee (solely as to clause (ii)), the Original Head Lessee, the Owner
Participant, the Owner Trustee and the Indenture Trustee to participate in the
transactions contemplated hereby is subject to the receipt by each of them of
(i) a certificate signed by an authorized officer of the Pass Through Trustee,
dated the Restatement Date, certifying that the representations and warranties
contained herein and in the Pass Through Trust Agreements of the Pass Through
Trustee are correct as of the Restatement Date, except to the extent that such
representations and warranties relate solely to an earlier date (in which case
such representations and warranties are correct on and as of such earlier
date), (ii) an opinion addressed to each of them of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP,
special counsel for the Pass Through Trustee, in form and substance
satisfactory to each of them, and (iii) such other documents and evidence with
respect to the Pass Through Trustee as it may reasonably request in order to
establish the due consummation of the transactions contemplated by this
Agreement, the taking of all necessary action in connection therewith and
compliance with the conditions herein set forth.
SECTION 5. Amendment and Restatement of the Original Indenture.
Subject to the satisfaction or waiver of the conditions precedent set forth
herein, the Owner Participant, by execution and delivery hereof, requests,
authorizes and directs the Owner Trustee to execute and deliver the First
Amended and Restated Indenture, and the Owner Trustee and the Indenture
Trustee, by execution and delivery hereof, agree to execute and deliver the
First Amended and Restated Indenture. Each of the Original Head Lessee, the
Parent Guarantor and the Lessee, by execution and delivery hereof, consent to
such execution and delivery of the First Amended and Restated Indenture. The
First Amended and Restated Indenture shall be effective as of the Restatement
Date.
SECTION 6. Amendment and Restatement of the Original Lease.
Subject to the satisfaction or waiver of the conditions precedent set forth
herein, the Indenture Trustee, the Pass Through Trustee, the Parent Guarantor
and the Owner Participant, by execution and delivery hereof, consent to the
assignments, delegations, and releases set forth in, and to the amendment and
restatement of the Original Lease effected by, and the Owner Participant
requests and instructs the Owner Trustee to execute and deliver, Lease
Amendment No. 1, and the Owner Trustee, the Original Head Lessee, the Indenture
Trustee and the Sublessee agree, by execution and delivery hereof, to execute
and deliver Lease Amendment No. 1. The Amended and Restated Lease shall be
effective as of the Restatement Date.
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SECTION 7. Termination of the Participation Agreement; Termination
of Sublease, etc. Subject to the satisfaction or waiver of the conditions
precedent set forth herein, the Owner Participant, the Owner Trustee, the
Original Head Lessee, the Parent Guarantor and the Indenture Trustee, by
execution and delivery hereof, agree that, with effect on and from the
Restatement Date and except as otherwise provided in Section 15 hereof, the
Participation Agreement shall terminate and forever be without force and
effect, conferring no rights and imposing no obligations on the parties
thereto. Upon the execution and delivery of Lease Amendment No. 1 by each of
the parties thereto, the Sublease and the Assignment of Sublease shall be
terminated as and to the extent set forth herein and therein. Lease Amendment
No. 1 shall be effective as of the Restatement Date.
SECTION 8. Representations and Warranties of the Lessee. The
Lessee represents and warrants, as of the Restatement Date, to the Original
Head Lessee, the Parent Guarantor, the Pass Through Trustee, the Owner
Participant, the Owner Trustee, the Liquidity Provider and the Indenture
Trustee that:
(a) the Lessee is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware, has the
corporate power and authority to own or hold under lease its properties,
has, or had on the respective dates of execution thereof, the corporate
power and authority to enter into and perform its obligations under this
Agreement, Lease Amendment No. 1, the Lease, the Pass Through Trust
Agreements, the Amended and Restated Sublease TIA and any certificate
delivered by the Lessee pursuant to the foregoing (the "Lessee Documents")
and is duly qualified to do business as a foreign corporation in each
jurisdiction where the failure to so qualify would not have a material
adverse effect on its business, operations or condition (financial or
otherwise), or on its ability to perform its obligations under the Lessee
Documents;
(b) the Lessee is a Certificated Air Carrier, and its chief
executive office (as such term is used in Article 9 of the Uniform
Commercial Code in effect in the State of Arizona) is located at ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇;
(c) the execution and delivery by the Lessee of the Lessee Documents
and the performance of the obligations of the Lessee under the Lessee
Documents have been duly authorized by all necessary corporate action on
the part of the Lessee, do not require any stockholder approval, or
approval or consent of any trustee or holder of any indebtedness or
obligations of the Lessee, except such as have been duly obtained and are
in full force and effect, and do not contravene any law, governmental
rule, regulation, judgment or order binding on the Lessee or the
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certificate of incorporation or by-laws of the Lessee, or contravene the
provisions of, or constitute a default under, or result in the creation of
any Lien (other than Permitted Liens) upon the property of the Lessee
under, any indenture, mortgage, contract, lease or other agreement to
which the Lessee is a party or by which it may be bound or affected;
(d) neither the execution and delivery by the Lessee of the Lessee
Documents nor the performance of the obligations of the Lessee under the
Lessee Documents nor the consummation by the Lessee of any of the
transactions contemplated by the Lessee Documents, requires the consent
or approval of, the giving of notice to, the registration with, or the
taking of any other action in respect of, the Department of
Transportation, the FAA, or any other federal, state, local or foreign
governmental authority having jurisdiction, other than those which have
already been received and which the Lessee is in compliance with and (i)
the registration of the Certificates under the Securities Act of 1933, as
amended (the "Securities Act") and the securities laws of any state in
which the Certificates may be offered for sale if the laws of such state
require such action, (ii) the qualification of the Pass Through Trust
Agreements under the Trust Indenture Act of 1939, as amended, (iii) (A)
the orders, permits, waivers, exemptions, authorizations and approvals of
the regulatory authorities having jurisdiction with respect to the Engine
by Lessee required to be obtained on or prior to the Restatement Date,
which orders, permits, waivers, exemptions, authorizations and approvals
have been duly obtained and are, or will on the Restatement Date be in
full force and effect and (B) such consents, approvals, notices,
registrations and other actions required by the terms of the Lessee
Documents to the extent required to be given or obtained only after the
Restatement Date and (iv) the registrations and filings referred to in
Section 8(i);
(e) each Lessee Document has been duly executed and delivered by the
Lessee and, assuming the due authorization, execution and delivery thereof
by the other parties thereto, each Lessee Document constitutes, or when
executed will constitute, the legal, valid and binding obligations of the
Lessee enforceable against the Lessee in accordance with their respective
terms, except as the same may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
rights of creditors or lessors generally and by general principles of
equity, whether considered in a proceeding at law or in equity, and
except, in the case of the Lease, as may be limited by applicable laws
which may affect the remedies provided in the Lease, which laws, however,
do not make the remedies provided in the Lease inadequate for the
practical realization of the benefits intended to be afforded thereby;
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(f) except as disclosed in the Prospectus, there are no pending or,
to its knowledge, threatened actions or proceedings before any court or
administrative agency or regulatory commission or other governmental
agency against or affecting the Lessee that are reasonably expected to
materially adversely affect the ability of Lessee to enter into or perform
its obligations under the Lessee Documents;
(g) the Lessee is not an "investment company" or a company
controlled by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended;
(h) on the Restatement Date, the Trust Estate shall be free and
clear of any and all Liens (other than Permitted Liens) created by or
through the Lessee;
(i) except for the filing for recordation pursuant to the Federal
Aviation Act (with confidential financial terms redacted) of Lease
Amendment No. 1, the Lease, Lease Supplement ▇▇. ▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇.
▇, the First Amended and Restated Indenture and Indenture Supplement No.
2, all with the FAA, the filing of a Uniform Commercial Code ("UCC")
amended financing statement with the Secretary of State of the State of
Delaware with regard to the Original Lease, the filing of a protective UCC
financing statement with the Secretary of State of the State of Arizona
with respect to the Lease, the filing of a UCC termination statement with
the Secretary of State of the State of Arizona with respect to the
Sublease, and the filing of a UCC termination statement with the Secretary
of State of the State of Delaware with respect to the Initial Sublease
Assignment (as defined in the Original Lease) all of which financing and
termination statements shall have been duly effected as of the Restatement
Date (and assignments thereof and continuation statements at periodic
intervals), and other than the taking of possession by the Indenture
Trustee of the original counterparts of the Original Lease, Lease
Amendment No. 1, the Lease, and all Lease Supplements thereto (to the
extent the Lease constitutes chattel paper), and the placing of the Lease
identification required by Section 6(e) of the Lease, no further filing or
recording of the Lease or of any other document (including any financing
statement under Article 9 of the UCC of the State of Delaware, New York or
Arizona) and no further action is necessary or advisable, under the laws
of the United States of America or the States of Delaware, New York and
Arizona in order to perfect the Owner Trustee's interest in the Engine as
against the Lessee and any third parties, or to perfect the security
interest in favor of the Indenture Trustee in the Owner Trustee's interest
in the Engine and in the Lease;
(j) all obligations of the Lessee owing to the Lessor in connection
with the Lease are at least pari passu with
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all unsecured and unsubordinated debt obligations of the Lessee;
(k) no event has occurred and is continuing which constitutes a
Lease Event of Default or would constitute a Lease Event of Default but
for the requirement that notice be given or time lapse or both;
(l) no event has occurred and is continuing which constitutes an
Event of Loss (as defined in the Lease) or would constitute an Event of
Loss with the lapse of time;
(m) the Lessee has filed or will file, or has caused or will cause
to be filed, all federal and state tax returns which are required to be
filed and has paid or will pay or has caused or will cause to be paid all
taxes shown to be due or payable on said returns and on any assessment
received by the Lessee, to the extent such taxes have become due and
payable, except for taxes and returns with respect thereto the nonpayment
or nonfiling of which, either in any case or in the aggregate, could have
no material adverse effect on the Lessee, its condition (financial or
otherwise), business, operations or prospects, or on its ability to
perform its obligations under the Lease, or which are being diligently
contested by the Lessee in good faith by appropriate proceedings and with
appropriate reserves;
(n) the financial statements contained in the Registration Statement
are complete in all material respects and fairly present the Lessee's
financial condition as of September 30, 1996 and the results of its
operations for the period covered in conformance with GAAP (except as
otherwise noted therein and with which any such change the independent
auditors of the Lessee have agreed), since September 30, 1996, there has
been no material adverse change in the Lessee's business, operations,
condition (financial or otherwise) or prospects which has not been
disclosed in writing to the Owner Participant and the Indenture Trustee;
(o) on the Restatement Date, all sales, use, documentary, duties or
other similar Taxes then due and for which the Lessee is responsible
pursuant to the Lessee Documents, shall have been paid, other than such
Taxes which are being contested by the Lessee in good faith and by
appropriate proceedings (and for which the Lessee shall have established
such reserves as are required under GAAP) so long as such proceedings do
not involve any material danger to the sale, forfeiture or loss of the
Engine;
(p) the Lessee is not a "national" of any foreign country designated
in Executive Order No. 8389, as amended, or of any "designated enemy
country" as defined in Executive Order 9193, as amended, of the President
of the United States, within the meaning of said Executive Orders, as
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amended, or of any regulations, interpretations or rulings issued
thereunder, or a "national" of any designated foreign country within the
meaning of the Foreign Assets Control Regulations or the Cuban Assets
Control Regulations of the United States Treasury Department, 31 Code of
Federal Regulations, Subtitle B, Chapter V, as amended, or of any
regulations, interpretations or rulings issued thereunder, and the Lessee
is not, and is not acting on behalf of or for the benefit of, an "Iranian
Entity" within the meaning of the Iranian Assets Control Regulations of
the United States Treasury Department, 31 Code of Federal Regulations,
Subtitle B, Chapter V, as amended, and the transactions contemplated by
this Agreement are not prohibited by Executive Order 12170, the
above-mentioned Iranian Assets Control Regulations or any regulations,
interpretations or rulings issued under any thereof;
(q) no part of the Rent or other payments made by the Lessee under
the Lease or under the other Operative Documents will be made out of the
assets of any "employee benefit plan" as defined in Section 3(3) of ERISA;
(r) no representation or warranty of the Lessee contained in any
Lessee Document or other information in writing furnished to the Owner
Participant or the Indenture Trustee by the Lessee in connection herewith,
including, without limitation, the financial statements contained in the
Registration Statement, contains any untrue statement of a material fact
or omits to state a material fact necessary in order to make the
statements contained herein or therein not misleading. There is no fact
known to the Lessee (other than matters of a general economic nature)
which the Lessee has not disclosed in writing to the Owner Participant or
the Indenture Trustee which could impair its ability to perform its
obligations under the Lessee Documents; and
(s) if the Lessee were to become a debtor under the Bankruptcy
Code, the Lessor as lessor of the Engine under the Lease, and the
Indenture Trustee, as assignee of the Owner Trustee's rights under the
Lease pursuant to the Indenture, would be entitled to the benefits of
Section 1110 of the Bankruptcy Code with respect to the Engine.
SECTION 9. Representations and Warranties. Each of the parties
below represents and warrants, as of the Restatement Date, to each of the other
parties to this Agreement and to the Liquidity Provider as follows:
(a) The Indenture Trustee in its individual capacity (and as
Indenture Trustee to the extent provided in clause (6) below) represents
and warrants that:
(1) the Indenture Trustee is a banking association duly
organized, validly existing and in
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good standing under the federal laws of the United States of America,
and has the full corporate power, authority and legal right under the
laws of the State of Connecticut and the federal laws of the United
States pertaining to its banking, trust and fiduciary powers to
execute and deliver each of this Agreement, the Indenture and each
other Operative Document to which it is a party and to carry out its
obligations under this Agreement, the Indenture and each other
Operative Document to which it is a party;
(2) the execution and delivery by the Indenture Trustee of this
Agreement, the Indenture, Lease Amendment No. 1 and each other
Operative Document to which it is a party and the performance by the
Indenture Trustee of its obligations under this Agreement, the
Indenture and each other Operative Document to which it is a party
have been duly authorized by the Indenture Trustee and will not
violate its articles of association or by-laws or the provisions of
any indenture, mortgage, contract or other agreement to which it is a
party or by which it is bound;
(3) this Agreement constitutes, and the Indenture, when
executed and delivered by the Indenture Trustee, will constitute, the
legal, valid and binding obligations of the Indenture Trustee
enforceable against it in accordance with their respective terms,
except as the same may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
rights of creditors generally and by general principles of equity,
whether considered in a proceeding at law or in equity;
(4) there are no pending or, to its knowledge, threatened
actions or proceedings against the Indenture Trustee, either in its
individual capacity or as Indenture Trustee, before any court or
administrative agency which, if determined adversely to it, would
materially adversely affect the ability of the Indenture Trustee, in
its individual capacity or as Indenture Trustee, as the case may be,
to perform its obligations under the Operative Documents to which it
is a party;
(5) there are no Lenders' Liens (as defined in the Lease) on
the Engine or any portion of the Trust Estate created by or through
the Indenture Trustee in its individual capacity; and
(6) it has possession of the chattel paper original counterpart
of the Original Lease, Lease Amendment No. 1 and the Lease.
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(b) Each of the Trust Company (except with respect to clauses
(2)(ii), (3), (6) and (8) below, which representations and warranties are
made solely by the Owner Trustee) and the Owner Trustee represents and
warrants that:
(1) the Trust Company is a banking corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware, has full corporate power and authority to carry on its
business as now conducted, has, or had on the respective dates of
execution thereof, the corporate power and authority to execute and
deliver Trust Supplement No. 2, has the corporate power and authority
to carry out the terms of the Trust Agreement, and each of the Trust
Company and the Owner Trustee has, or had on the respective dates of
execution thereof (assuming the authorization, execution and delivery
of Trust Supplement No. 2 by the Owner Participant), the corporate
power and authority to execute and deliver and to carry out the terms
of this Agreement, the Indenture, the Equipment Notes, Lease
Amendment No. 1, the Lease and each other Operative Document (other
than the Trust Agreement) to which it is a party;
(2) (i) each of the Trust Company and the Owner Trustee has duly
authorized, executed and delivered this Agreement and Trust
Supplement No. 2, and (assuming the due authorization, execution and
delivery of Trust Supplement No. 2 by the Owner Participant) the
Trust Agreement constitutes a legal, valid and binding obligation of
the Owner Trustee and the Trust Company, as the case may be,
enforceable against it in accordance with its terms, except as the
same may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally and by general principles of equity, whether
considered in a proceeding at law or in equity, (ii) the Owner
Trustee has duly authorized, executed and delivered this Agreement
and Trust Supplement No. 2, and (assuming the due authorization,
execution and delivery of Trust Supplement No. 2 by the Owner
Participant) this Agreement and the Trust Agreement constitutes, and
the Indenture and the Lease, when entered into, will constitute, a
legal, valid and binding obligation of the Owner Trustee and the
Trust Company, as the case may be, enforceable against it in
accordance with its terms, except as the same may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the rights of creditors generally and by
general principles of equity, whether considered in a proceeding at
law or in equity;
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(3) assuming the due authorization, execution and delivery of
Trust Supplement No. 2 by the Owner Participant, the Owner Trustee
has duly authorized, and on the Restatement Date shall have duly
issued, executed and delivered to the Indenture Trustee for
authentication, the Equipment Notes pursuant to the terms and
provisions hereof and of the Indenture, and each Equipment Note on
the Restatement Date will constitute the valid and binding obligation
of the Owner Trustee and will be entitled to the benefits and
security afforded by the Indenture in accordance with the terms of
such Equipment Note and the Indenture;
(4) neither the execution and delivery by the Owner Trustee or
the Trust Company, as the case may be, of this Agreement, the
Original Trust Agreement, Trust Supplement No. 2, the Original
Indenture, the Indenture, the Original Lease, Lease Amendment No. 1,
the Lease, the Equipment Notes or any other Operative Document to
which it is a party, nor the consummation by it of any of the
transactions contemplated hereby or thereby, nor the compliance by it
with any of the terms and provisions hereof and thereof, (A) requires
or will require any approval of its stockholders, or approval or
consent of any trustees or holders of any indebtedness or obligations
of it, or (B) violates or will violate its articles of association or
by-laws, [or contravenes or will contravene any provision of, or
constitutes or will constitute a default under, or results or will
result in any breach of, or results or will result in the creation of
any Lien (other than as permitted under the Operative Documents) upon
its property under, any indenture, mortgage, chattel mortgage, deed
of trust, conditional sale contract, bank loan or credit agreement,
license or other agreement or instrument to which it is a party or by
which it is bound,] or contravenes or will contravene any law,
governmental rule or regulation of the State of Delaware or any
United States governmental authority or agency governing the trust
powers of the Owner Trustee, or any judgment or order applicable to
or binding on it;
(5) no consent, approval, order or authorization of, giving of
notice to, or registration with, or taking of any other action in
respect of, any state or local governmental authority or agency or
any State of Delaware or any United States of America governmental
authority or agency regulating the trust powers of the Trust Company
is required for the execution and delivery of, or the carrying out
by, the Trust Company or the Owner Trustee, as the case may be, of
any of the transactions contemplated hereby or by the Trust
Agreement, the Indenture, the Lease, Lease Amendment
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No. 1, the Equipment Notes or any other Operative Document to which
it is a party or by which it is bound, other than any such consent,
approval, order, authorization, registration, notice or action as has
been duly obtained, given or taken or which is described in Section
8(d);
(6) there exists no Lessor's Lien or Head Lessor's Lien (each
as defined in the Lease) (including for this purpose Liens that would
be Lessor's Liens but for the first proviso in the definition of
Lessor's Liens) attributable to the Owner Trustee;
(7) there exists no Lessor's Lien or Head Lessor's Lien
(including for this purpose Liens that would be Lessor's Liens but
for the first proviso in the definition of Lessor's Liens)
attributable to the Trust Company;
(8) there are no Taxes payable by the Owner Trustee or the
Trust Company imposed by the State of Delaware or any political
subdivision thereof in connection with the prepayment of the Original
Certificates or the issuance of the Equipment Notes, or the execution
and delivery by it of any of the instruments referred to in clauses
(1), (2), (3) and (4) above, that, in each case, would not have been
imposed if the Trust Estate were not located in the State of Delaware
and the Trust Company had not (a) had its principal place of business
in, (b) performed (in its individual capacity or as Owner Trustee)
any or all of its duties under the Operative Documents in, and (c)
engaged in any activities unrelated to the transactions contemplated
by the Operative Documents in, the State of Delaware;
(9) there are no pending or, to its knowledge, threatened
actions or proceedings against the Owner Trustee, either in its
individual capacity or as Owner Trustee, before any court or
administrative agency which, if determined adversely to it, would
materially adversely affect the ability of the Owner Trustee, in its
individual capacity or as Owner Trustee, as the case may be, to
perform its obligations under any of the instruments referred to in
clauses (1), (2), (3) and (4) above; and
(10) both its chief executive office, and the place where its
records concerning the Engine and all its interests in, to and under
all documents relating to the Trust Estate (other than such as may be
maintained and held by the Indenture Trustee pursuant to the
Indenture), are located in Wilmington, Delaware. Owner Trustee, in
its individual capacity or as Owner
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Trustee, agrees that it will not change the location of such office
to a location outside of Delaware, without prior written notice to
all parties hereto.
(c) The Owner Participant represents and warrants that:
(1) it is duly incorporated, validly existing and in good
standing under the laws of the State of Delaware, has the corporate
power and authority to carry on its present business and operations
and to own or lease its properties, has, or had on the respective
dates of execution thereof, as the case may be, the corporate power
and authority to enter into and to perform its obligations under this
Agreement, the Trust Agreement and the Amended and Restated Head
Lease TIA; this Agreement and Trust Supplement No. 2 have been duly
authorized, executed and delivered by it; and this Agreement, the
Trust Agreement and the Amended and Restated Head Lease TIA
constitute the legal, valid and binding obligations of the Owner
Participant enforceable against it in accordance with their
respective terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the rights of creditors generally and by general
principles of equity, whether considered in a proceeding at law or in
equity;
(2) neither (A) the execution and delivery by the Owner
Participant of this Agreement, the Trust Agreement, the Amended and
Restated Head Lease TIA or any other Operative Document to which it
is a party nor (B) compliance by it with all of the provisions hereof
or thereof, (x) will contravene any law or order of any court or
governmental authority or agency applicable to or binding on the
Owner Participant (it being understood that no representation or
warranty is made with respect to laws, rules or regulations relating
to aviation or to the nature of the equipment owned by the Owner
Trustee), or (y) will contravene the provisions of, or constitutes or
has constituted or will constitute a default under, its certificate
of incorporation or by-laws or any indenture, mortgage, contract or
other agreement or instrument to which the Owner Participant is a
party or by which it or any of its property may be bound or affected;
(3) no authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory
body (other than as required by the Federal Aviation Act or the
regulations promulgated thereunder) is or was required, as the case
may be, for the due execution, delivery or performance by it of
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this Agreement, the Trust Agreement and the Amended and Restated Head
Lease TIA (it being understood that no representation or warranty is
made with respect to laws, rules or regulations relating to aviation
or to the nature of the equipment owned by the Owner Trustee);
(4) there are no pending or, to its knowledge, threatened
actions or proceedings against the Owner Participant before any court
or administrative agency or arbitrator which, if determined adversely
to the Owner Participant, would materially adversely affect the Owner
Participant's ability to perform its obligations under this
Agreement, the Trust Agreement or the Amended and Restated Head Lease
TIA;
(5) neither the Owner Participant nor anyone authorized by it
to act on its behalf (it being understood that in proposing,
facilitating and otherwise taking any action in connection with the
refinancing contemplated hereby and agreed to herein by the Owner
Participant, the Lessee has not acted as agent of the Owner
Participant) has directly or indirectly offered any Equipment Notes
or Certificates or any interest in and to the Trust Estate, the Trust
Agreement or any similar interest for sale to, or solicited any offer
to acquire any of the same from, any Person; the Owner Participant's
interest in the Trust Estate and the Trust Agreement was acquired for
its own account and was purchased for investment and not with a view
to any resale or distribution thereof; and
(6) on the Restatement Date, the Trust Estate shall be free of
Lessor's Liens and Head Lessor's Liens attributable to the Owner
Participant (including for this purpose Liens that would be Lessor's
Liens but for the first proviso in the definition of Lessor's Liens).
(d) The Pass Through Trustee represents, warrants and covenants
that:
(1) the Pass Through Trustee is duly organized, validly
existing and in good standing under the federal laws of the United
States of America, and has the full corporate power, authority and
legal right under the federal laws of the United States of America
pertaining to its banking, trust and fiduciary powers to execute and
deliver each of the Pass Through Trust Agreements, the Intercreditor
Agreement, and this Agreement and to perform its obligations under
this Agreement, the Pass Through Trust Agreements and the
Intercreditor Agreement;
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(2) this Agreement has been, and when executed and delivered by
the Pass Through Trustee, each of the Pass Through Trust Agreements
and the Intercreditor Agreement will have been, duly authorized,
executed and delivered by the Pass Through Trustee; this Agreement
constitutes, and when executed and delivered by the Pass Through
Trustee, each of the Pass Through Trust Agreements and the
Intercreditor Agreement, will constitute, the legal, valid and
binding obligations of the Pass Through Trustee enforceable against
it in accordance with their respective terms, except as the same may
be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors
generally and by general principles of equity, whether considered in
a proceeding at law or in equity;
(3) none of the execution, delivery and performance by the Pass
Through Trustee of any of the Pass Through Trust Agreements, the
Intercreditor Agreement or this Agreement, the purchase by the Pass
Through Trustee of the Equipment Notes pursuant to this Agreement, or
the issuance of the Certificates pursuant to the Pass Through Trust
Agreements, contravenes any law, rule or regulation of the State of
Connecticut or any United States governmental authority or agency
regulating the Pass Through Trustee's banking, trust or fiduciary
powers or any judgment or order applicable to or binding on the Pass
Through Trustee and does not contravene or result in any breach of,
or constitute a default under, the Pass Through Trustee's articles of
association or by-laws or any agreement or instrument to which the
Pass Through Trustee is a party or by which it or any of its
properties may be bound;
(4) neither the execution and delivery by the Pass Through
Trustee of any of the Pass Through Trust Agreements, the
Intercreditor Agreement or this Agreement, nor the consummation by
the Pass Through Trustee of any of the transactions contemplated
hereby or thereby, requires the consent or approval of, the giving of
notice to, the registration with, or the taking of any other action
with respect to, any State of Connecticut governmental authority or
agency or any federal governmental authority or agency regulating the
Pass Through Trustee's banking, trust or fiduciary powers;
(5) assuming that the trusts created by the Pass Through Trust
Agreements will not be taxable as corporations, but, rather, each
will be characterized as a grantor trust under subpart E, Part I of
Subchapter J of the Code for federal income tax purposes, there are
no Taxes payable by the Pass
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Through Trustee imposed by the State of Connecticut or any political
subdivision or taxing authority thereof in connection with the
acquisition, possession or ownership by the Pass Through Trustee of
any of the Equipment Notes (other than franchise or other taxes based
on or measured by any fees or compensation received by the Pass
Through Trustee for services rendered in connection with the
transactions contemplated by any of the Pass Through Trust
Agreements), and prior to the exercise of remedies upon the
occurrence of an Indenture Event of Default, there are no Taxes
payable by the Pass Through Trustee imposed by the State of
Connecticut or any political subdivision or taxing authority thereof
in connection with the execution, delivery and performance by the
Pass Through Trustee of this Agreement, any of the Pass Through Trust
Agreements or the Intercreditor Agreement (other than franchise or
other Taxes based on or measured by any fees or compensation received
by the Pass Through Trustee for services rendered in connection with
the transactions contemplated by any of the Pass Through Trust
Agreements), and such trusts will not be subject to any Taxes imposed
by the State of Connecticut or any political subdivision or taxing
authority thereof; upon the exercise of remedies following the
occurrence of an Indenture Event of Default, there will be no Taxes
payable by the Pass Through Trustee imposed by the State of
Connecticut or any political subdivision or taxing authority thereof
in connection with the execution, delivery and performance by the
Pass Through Trustee of this Agreement, any of the Pass Through Trust
Agreements or the Intercreditor Agreement (other than franchise or
other Taxes based on or measured by any fees or compensation received
by the Pass Through Trustee for services rendered in connection with
the transactions contemplated by any of the Pass Through Trust
Agreements), and the trusts created by the Pass Through Trust
Agreements will not be subject to any Taxes imposed by the State of
Connecticut or any political subdivision thereof, solely because the
Pass Through Trustee maintains an office in, and administers the
trusts created by the Pass Through Trust Agreements in, the State of
Connecticut;
(6) there are no pending or threatened actions or proceedings
against the Pass Through Trustee before any court or administrative
agency which individually or in the aggregate, if determined
adversely to it, would materially adversely affect the ability of the
Pass Through Trustee to perform its obligations under this Agreement,
the Intercreditor Agreement or any Pass Through Trust Agreement;
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(7) except for the issue and sale of the Certificates
contemplated hereby, the Pass Through Trustee has not directly or
indirectly offered any Equipment Notes for sale to any Person or
solicited any offer to acquire any Equipment Notes from any Person,
nor has the Pass Through Trustee authorized anyone to act on its
behalf to offer directly or indirectly any Equipment Notes for sale
to any Person, or to solicit any offer to acquire any Equipment Notes
from any Person; and the Pass Through Trustee is not in default under
any Pass Through Trust Agreement; and
(8) the Pass Through Trustee is not directly or indirectly
controlling, controlled by or under common control with the Owner
Participant, the Owner Trustee, the Underwriters or the Lessee.
(e) The Subordination Agent represents and warrants that:
(1) the Subordination Agent is a duly organized national
banking association, validly existing and in good standing with the
Comptroller of the Currency under the laws of the United States of
America and has the full corporate power, authority and legal right
under the laws of the United States of America pertaining to its
banking, trust and fiduciary powers to execute and deliver each of
the Liquidity Facilities, the Intercreditor Agreement and this
Agreement and to perform its obligations under this Agreement, the
Liquidity Facilities and the Intercreditor Agreement;
(2) this Agreement has been, and when executed and delivered by
the Subordination Agent, each of the Liquidity Facilities and the
Intercreditor Agreement will have been, duly authorized, executed and
delivered by the Subordination Agent; this Agreement constitutes, and
when executed and delivered by the Subordination Agent, each of the
Liquidity Facilities and the Intercreditor Agreement, will
constitute, the legal, valid and binding obligations of the
Subordination Agent enforceable against it in accordance with their
respective terms, except as the same may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and by general principles
of equity, whether considered in a proceeding at law or in equity;
(3) none of the execution, delivery and performance by the
Subordination Agent of each of the Liquidity Facilities, the
Intercreditor Agreement and this Agreement or the performance by the
Subordination
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Agent of this Agreement, contravenes any law, rule or regulation of
the State of Connecticut or any United States governmental authority
or agency regulating the Subordination Agent's banking, trust or
fiduciary powers or any judgment or order applicable to or binding on
the Subordination Agent and do not contravene or result in any breach
of, or constitute a default under, the Subordination Agent's articles
of association or by-laws or any agreement or instrument to which the
Subordination Agent is a party or by which it or any of its
properties may be bound;
(4) neither the execution and delivery by the Subordination
Agent of any of the Liquidity Facilities, the Intercreditor Agreement
or this Agreement nor the consummation by the Subordination Agent of
any of the transactions contemplated hereby or thereby requires the
consent or approval of, the giving of notice to, the registration
with, or the taking of any other action with respect to, any State of
Connecticut governmental authority or agency or any federal
governmental authority or agency regulating the Subordination Agent's
banking, trust or fiduciary powers;
(5) there are no Taxes payable by the Subordination Agent
imposed by the State of Connecticut or any political subdivision or
taxing authority thereof in connection with the execution, delivery
and performance by the Subordination Agent of this Agreement, any of
the Liquidity Facilities or the Intercreditor Agreement (other than
franchise or other taxes based on or measured by any fees or
compensation received by the Subordination Agent for services
rendered in connection with the transactions contemplated by the
Intercreditor Agreement or any of the Liquidity Facilities) solely
because the Subordination Agent maintains an office and administers
its trust business in the State of Connecticut, and there are no
Taxes payable by the Subordination Agent imposed by the State of
Connecticut or any political subdivision thereof in connection with
the acquisition, possession or ownership by the Subordination Agent
of any of the Equipment Notes solely because the Subordination Agent
maintains an office and administers its trust business in the State
of Connecticut (other than franchise or other taxes based on or
measured by any fees or compensation received by the Subordination
Agent for services rendered in connection with the transactions
contemplated by the Intercreditor Agreement or any of the Liquidity
Facilities);
(6) there are no pending or threatened actions or proceedings
against the Subordination Agent before any
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court or administrative agency which individually or in the
aggregate, if determined adversely to it, would materially adversely
affect the ability of the Subordination Agent to perform its
obligations under this Agreement, the Intercreditor Agreement or any
Liquidity Facility;
(7) the Subordination Agent has not directly or indirectly
offered any Equipment Note for sale to any Person or solicited any
offer to acquire any Equipment Note from any Person, nor has the
Subordination Agent authorized anyone to act on its behalf to offer
directly or indirectly any Equipment Note for sale to any Person, or
to solicit any offer to acquire any Equipment Note from any Person;
and the Subordination Agent is not in default under any Liquidity
Facility; and
(8) the Subordination Agent is not directly or indirectly
controlling, controlled by or under common control with the Owner
Participant, the Owner Trustee, the Underwriters or the Lessee.
(f) The Original Head Lessee represents and warrants that:
(1) it is duly incorporated, validly existing and in good
standing under the laws of the State of Connecticut and has the
corporate power and authority to carry on its present business and
operations and to own or lease its properties, has the corporate
power and authority to enter into and to perform its obligations
under this Agreement, Lease Amendment No. 1, the Amended and Restated
Head Lease TIA and the Amended and Restated Sublease TIA
(collectively, the "Original Head Lessee Transaction Documents");
each Original Head Lessee Transaction Document has been duly
authorized, and upon the execution and delivery thereof will
constitute, the legal, valid and binding obligations of the Original
Head Lessee enforceable against it in accordance with their
respective terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the rights of creditors generally and by general
principles of equity, whether considered in a proceeding at law or in
equity;
(2) neither (A) the execution and delivery by the Original Head
Lessee of this Agreement and each of the other Original Head Lessee
Transaction Documents nor (B) compliance by it with all of the
provisions hereof or thereof, (x) will contravene any law or order of
any court or governmental authority or agency applicable to or
binding on the Original Head Lessee, or (y) will
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contravene the provisions of, or constitutes or has constituted or
will constitute a default under, its certificate of incorporation or
by-laws or any indenture, mortgage, contract or other agreement or
instrument to which the Original Head Lessee is a party or by which
it or any of its property may be bound or affected, except where such
contravention or default would not result in any liability to any
other party hereto or have a material adverse effect on the rights or
on the remedies of the other parties hereto or on its ability to
perform its obligations hereunder or thereunder;
(3) no authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory
body (other than as required by the Federal Aviation Act or the
regulations promulgated thereunder) is or was required, as the case
may be, for the due execution, delivery or performance by the
Original Head Lessee of this Agreement and each of the other Original
Head Lessee Transaction Documents;
(4) except as set forth in the Parent Guarantor's most recent
Form 20-F filed with the Commission, there are no pending or, to its
knowledge, threatened actions or proceedings against the Original
Head Lessee before any court or administrative agency or arbitrator
which, if determined adversely to the Original Head Lessee, would
materially adversely affect the Original Head Lessee's ability to
perform its obligations under this Agreement or any other Original
Head Lessee Transaction Documents;
(5) on the Restatement Date, the Trust Estate, the Engine and
each Part shall be free and clear of any and all Sublessor's Liens
(as defined in the Sublease) and after the Restatement Date the Trust
Estate, the Engine and each Part shall be free and clear of any Lien
or disposition of title created by or through Original Head Lessee,
Parent Guarantor or any Affiliate of either thereof; and
(6) on the Delivery Date, the Owner Trustee received good title
to the Engine free and clear of all Liens, except the rights of the
Original Head Lessee under the Original Lease, the rights of the
Sublessee under the Sublease, the Lien of the Original Indenture, the
beneficial interest of the Owner Participant in the Engine, and
Permitted Liens under the Original Lease.
(g) The Parent Guarantor represents and warrants that:
(1) it is duly organized and validly existing under the laws of
Ireland and has the corporate power
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and authority to enter into and to perform its obligations under this
Agreement; this Agreement has been duly authorized and constitutes
the legal, valid and binding obligations of the Parent Guarantor
enforceable against it in accordance with its respective terms,
except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting the rights of creditors generally and by general principles
of equity, whether considered in a proceeding at law or in equity;
(2) neither (A) the execution and delivery by the Parent
Guarantor of this Agreement nor (B) compliance by it with all of the
provisions hereof, (x) will contravene any law or order of any court
or governmental authority or agency applicable to or binding on the
Parent Guarantor, or (y) will contravene the provisions of, or
constitutes or has constituted or will constitute a default under,
its Memorandum and Articles of Association or any indenture,
mortgage, contract or other agreement or instrument to which the
Parent Guarantor is a party or by which it or any of its property may
be bound or affected, except where such contravention or default
would not result in any liability to any other party hereto or have a
material adverse effect on the rights or on the remedies of the other
parties hereto or on its ability to perform its obligations hereunder
or thereunder;
(3) no authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory
body (other than as required by the Federal Aviation Act or the
regulations promulgated thereunder) is or was required, as the case
may be, for the due execution, delivery or performance by the Parent
Guarantor of this Agreement;
(4) except as set forth in the Parent Guarantor's most recent
Form 20-F filed with the Commission, there are no pending or, to its
knowledge, threatened actions or proceedings against the Parent
Guarantor before any court or administrative agency or arbitrator
which, if determined adversely to the Parent Guarantor, would
materially adversely affect the Parent Guarantor's ability to perform
its obligations under this Agreement;
(5) on the Restatement Date, the Trust Estate, the Engine and
each Part shall be free and clear of any and all Sublessor's Liens
(as defined in the Sublease); and
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(6) The representations and warranties of the Original Head
Lessee contained in this Agreement are true and correct in all
respects on the date made.
SECTION 10. Transfer of Owner Participant's Interest. Owner
Participant shall not directly or indirectly sell, assign, convey or otherwise
transfer (whether by operation of law, consolidation, merger, sale of assets or
otherwise) any of its right, title or interest in and to the Trust Estate, the
Engine, the Lease, this Agreement, the Trust Agreement, the Amended and
Restated Head Lease TIA or any other Operative Document or any proceeds
therefrom or permit the transfer of any of its stock in any transaction which
has the practical effect of any of the foregoing; provided that, and subject to
the conditions set forth below, Owner Participant may transfer to a Transferee
(as defined below) all (but not less than all) of its right (except for such
rights accruing prior to transfer), title and interest as an entirety in and to
the Trust Estate, the Engine, this Agreement, the Trust Agreement, the Amended
and Restated Head Lease TIA and each other Operative Document to which Owner
Participant is a party or by which Owner Participant is bound. Each such
transfer shall be subject to the following conditions, and Owner Participant
agrees for the express benefit of each party hereto that any such transfer will
comply with such conditions:
(i) the Person to whom such transfer is to be made (a "Transferee")
is either (A) a bank, trust company or other like regulated financial
institution, or a corporation with a net worth of at least $60,000,000,
(B) any wholly-owned subsidiary of such bank, trust company, financial
institution or corporation if such bank, trust company, financial
institution or corporation furnishes to Owner Trustee, Indenture Trustee,
Original Head Lessee and Lessee an agreement or agreements of such bank,
financial institution or corporation guaranteeing such subsidiary's
obligations as Owner Participant contained in this Agreement, the Trust
Agreement, the Amended and Restated Head Lease TIA and each other
Operative Document to which Owner Participant is a party or by which it is
bound, which guarantee shall be substantially in the form attached as
Exhibit A hereto or (C) a subsidiary of Owner Participant if Owner
Participant furnishes to Owner Trustee, Indenture Trustee, Original Head
Lessee and Lessee an agreement whereby Owner Participant will guarantee
such subsidiary's obligations as Owner Participant contained in this
Agreement, the Trust Agreement, the Amended and Restated Head Lease TIA
and each other Operative Document to which Owner Participant is a party or
by which it is bound, which guarantee shall be substantially in the form
attached as Exhibit A hereto;
(ii) Owner Trustee, Indenture Trustee, Original Head Lessee and
Lessee shall have received at least 15 days' prior written notice of such
transfer specifying the name
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and address of any proposed transferee and specifying the facts necessary
to determine whether such proposed transferee qualifies as a "Transferee"
under clause (i) above and does not violate clause (viii) below; provided
that if such Transferee is a subsidiary of Owner Participant, such notice
may be given promptly following rather than prior to such transfer if such
Transferee meets the net worth requirement set forth above on its own
account without a guaranty and otherwise meets the requirements of this
Section 10;
(iii) [Reserved];
(iv) such Transferee has the requisite power and authority and legal
right to enter into and carry out the transactions contemplated hereby;
(v) such Transferee enters into an agreement in substantially the
form attached as Exhibit B hereto whereby such Transferee confirms that it
shall be deemed a party to this Agreement, the Trust Agreement, the
Amended and Restated Head Lease TIA and each other Operative Document to
which Owner Participant is a party or by which Owner Participant is bound,
and in which the transferee shall agree to be bound by and undertake the
obligations of Owner Participant in the Operative Documents and shall make
representations and warranties comparable to those of Owner Participant
contained herein;
(vi) such transfer does not violate any provision of the Federal
Aviation Act or any rules or regulations promulgated thereunder, or create
a relationship that would be in violation thereof, or violate any
provisions of the Securities Act or any other applicable Federal, state or
other law, rule or regulation;
(vii) such transfer does not violate any provision of ERISA or any
rules or regulations thereunder;
(viii) such Transferee is not an airline, a commercial air carrier,
an air freight forwarder, any Person engaged in the business of parcel
transport by air or a subsidiary or an Affiliate of such an airline, a
commercial air carrier, an air freight forwarder, Person engaged in the
business of parcel transport by air;
(ix) an opinion of counsel of the Transferee confirming the matters
referred to in clauses (iv) and (vi) above (with appropriate reliance on
certificates of corporate officers or public officials as to matters of
fact) and confirming that the agreement referred to in clause (v) above is
the legal, valid, binding and enforceable obligation of the Transferee and
that the guarantee referred to in clause (i)(B) or (C) above, if any, is
the legal, valid,
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binding and enforceable obligation of the Transferee's guarantor shall be
provided, at least 3 days prior to such transfer, to Lessee, Owner
Trustee, Original Head Lessee and Indenture Trustee, which shall be in
form and substance reasonably satisfactory to each of them;
(x) the terms of the Operative Documents and the Amended and
Restated Head Lease TIA shall not be altered; and
(xi) such Transferee shall agree that Lessee and Original Head
Lessee shall have no greater liability to such Transferee under the
Operative Documents (other than under Section 10 of the Lease) than Lessee
or Original Head Lessee would have had to Owner Participant on the date of
the transfer to the Transferee.
Upon any such transfer, except as the context otherwise requires, such
Transferee shall be deemed "Owner Participant" for all purposes hereof and of
the Trust Agreement, the Amended and Restated Head Lease TIA and each other
Operative Document to which Owner Participant is a party or by which Owner
Participant is bound, and shall be deemed to have made the original
participation in the Engine previously made by Owner Participant; and except as
the context otherwise requires, each reference in this Agreement, the Trust
Agreement, the Amended and Restated Head Lease TIA and each other Operative
Document to "Owner Participant" shall thereafter be deemed to include such
Transferee as provided in this Section 10. No transfer shall release Owner
Participant from its obligations hereunder, under the Amended and Restated Head
Lease TIA and under the other Operative Documents, except to the extent
expressly assumed by the Transferee in accordance with this Section 10,
provided, that notwithstanding such an assumption, in no event shall Owner
Participant be released from its obligations hereunder or under any of the
other Operative Documents with respect to claims under this Agreement or under
the Amended and Restated Head Lease TIA by or against Owner Participant which
have accrued or been made prior to the date of such transfer. The transferor
Owner Participant shall pay the reasonable expenses of each party hereto
related to any such transfer.
Owner Participant covenants and warrants that it shall not transfer
all or any portion of its interest in the Trust Estate except in accordance
with this Section 10 and that it shall not itself, or direct Owner Trustee to,
take any action in contravention of the Lessee's rights under the Lease except
in accordance with the provisions of the Lease.
SECTION 11. [Reserved].
SECTION 12. Quiet Enjoyment. Each of the Trust Company, Owner
Trustee, Owner Participant (as to itself and as to Owner Trustee), Indenture
Trustee in its individual capacity and
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as Indenture Trustee and on behalf of the Note Holders, the Pass Through
Trustee and the Subordination Agent severally covenants and agrees that during
the Term, so long as no Lease Event of Default shall have occurred and be
continuing and the Lease shall not have been declared or deemed in default, no
action shall be taken or caused to be taken by it or a Person lawfully claiming
by, through or on behalf of it to interfere with the right of Lessee or any
Permitted Sublessee to the possession, use, operation and quiet enjoyment of
and other rights with respect to the Engine under the Lease, and all rents,
revenues, profits and income therefrom, in accordance with the terms of the
Lease; provided that the Trust Company, Owner Trustee and Owner Participant
shall not be liable for any such interference by Indenture Trustee, Pass
Through Trustee, holders of any Equipment Notes, or any other Person claiming
by, through or on behalf of them.
SECTION 13. Liens. Each of the Trust Company, Owner Trustee and
Owner Participant severally covenants and agrees with each other party hereto
that it shall not cause or permit to exist a Lessor's Lien or Head Lessor's
Lien attributable to it with respect to the Engine or any other portion of the
Trust Estate or the Indenture Estate. Each of Trust Company, Owner Trustee and
Owner Participant severally agrees that it will promptly, at its own expense
(and without any right of indemnification or reimbursement from Lessee), take
such action as may be necessary duly to discharge any such Lessor's Lien or
Head Lessor's Lien attributable to it and to make restitution to the Trust
Estate and the Indenture Estate for any diminution of the assets thereof
resulting therefrom and will indemnify and hold harmless Lessee and each
Indemnitee against any claims incurred or suffered by any such Person and any
reduction in amounts payable out of, or diminution in the assets of, the Trust
Estate or the Indenture Estate resulting from any such Lessor's Lien or Head
Lessor's Lien attributable to it. For all purposes of this Agreement and the
other Operative Documents, any Lessor's Lien or Head Lessor's Lien arising as a
result of the nonpayment of any Tax imposed on or measured by the net income of
the Trust Estate or the trust created by the Trust Agreement that is not
indemnifiable by Lessee or Original Head Lessee shall be deemed to be
attributable to Owner Participant, and Owner Participant shall be responsible
for all Lessor's Liens attributable to Owner Participant and Owner Trustee.
Each of the Indenture Trustee, Pass Through Trustee and Subordination
Agent severally covenants and agrees with each other party hereto that it shall
not cause or permit to exist a Trustee's Lien (as defined below) attributable
to it with respect to the Engine or any other portion of the Trust Estate or
the Indenture Estate. Each of Indenture Trustee, Pass Through Trustee and
Subordination Agent severally agrees that it will promptly, at its own expense
(and without any right of indemnification or reimbursement from Lessee), take
such action as may be necessary duly to discharge any such Trustee's Lien
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attributable to it and to make restitution to the Trust Estate and the
Indenture Estate for any diminution of the assets thereof resulting therefrom
and will indemnify and hold harmless Lessee and each Indemnitee against any
claims incurred or suffered by any such Person and any reduction in amounts
payable out of, or diminution in the assets of, the Trust Estate or the
Indenture Estate resulting from any such Trustee's Lien attributable to it.
For purposes of this paragraph, "Trustee's Lien" means any Lien or disposition
of title attributable to Indenture Trustee in its individual capacity (and not
as Indenture Trustee), Pass Through Trustee in its individual capacity (and not
as Pass Through Trustee) or Subordination Agent in its individual capacity (and
not as Subordination Agent) on or in respect of (as the case may be) the Engine
or any other portion of the Trust Estate or the Trust Indenture Estate arising
as a result of (i) Claims against such Person not related to its interest in
the Engine or the administration of the Trust Estate or the Trust Indenture
Estate pursuant to the Indenture, whether under Section 9-207(2)(e) of the
Uniform Commercial Code or otherwise, (ii) acts or omissions of such Person not
contemplated hereunder or under the other Operative Documents, or acts or
omissions of such Person which are in violation of any of the Operative
Documents, or (iii) Taxes imposed on or Claims against such Person which are
excluded from indemnification by Lessee, or (iv) Claims against such Person
arising out of the voluntary or involuntary transfer by such Person of all or
any portion of its interest in the Engine, the Trust Estate, the Trust
Indenture Estate or the Operative Documents (except a Claim resulting from the
exercise of remedies under and in accordance with the Indenture or for a
transfer provided for in the Operative Documents).
Each of the Original Head Lessee and Parent Guarantor severally
covenants and agrees with each other party hereto that it shall not cause or
permit to exist a Sublessor's Lien (as defined in the Sublease) attributable to
it or other Lien or disposition of title created by or through Original Head
Lessee, Parent Guarantor or any Affiliate of either thereof which would have
constituted a Sublessor's Lien had the Sublease remained in effect with respect
to the Engine or any other portion of the Trust Estate or the Indenture Estate.
Each of the Original Head Lessee and Parent Guarantor severally agrees that it
will promptly, at its own expense (and without any right of indemnification or
reimbursement from Lessee), take such action as may be necessary duly to
discharge any such Sublessor's Lien attributable to it or other Lien or
disposition of title created by or through Original Head Lessee, Parent
Guarantor or any Affiliate of either thereof which would have constituted a
Sublessor's Lien had the Sublease remained in effect and to make restitution to
the Trust Estate and the Indenture Estate for any diminution of the assets
thereof resulting therefrom and will indemnify and hold harmless Lessee and
each Indemnitee against any claims incurred or suffered by any such Person and
any reduction in amounts payable out of, or diminution in the assets of, the
Trust Estate or the Indenture Estate resulting from any
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such Sublessor's Lien attributable to it or other Lien or disposition of title
created by or through Original Head Lessee, Parent Guarantor or any Affiliate
of either thereof which would have constituted a Sublessor's Lien had the
Sublease remained in effect.
In no event will Lessee be liable for any Claims resulting from,
pertaining to, arising from, or related to the granting, creation or existence
of a Lessor's Lien, a Head Lessor's Lien, a Lenders' Lien, or a Sublessor's
Lien or other Lien or disposition of title created by or through Original Head
Lessee, Parent Guarantor or any Affiliate of either thereof which would have
constituted a Sublessor's Lien had the Sublease remained in effect.
The Parent Guarantor covenants and agrees that it shall cause the
Original Head Lessee to perform its obligations under this Section 13.
SECTION 14. Certain Additional Provisions Relating to Original Head
Lessee, Parent Guarantor, Trust Company, Owner Trustee and Owner Participant.
(a) Each of Owner Participant and Trust Company hereby agrees with Lessee and
Indenture Trustee (i) to comply with the terms of the Trust Agreement, (ii) not
to amend, supplement, or otherwise modify the Trust Agreement except in
accordance with the terms thereof, and (iii) not to terminate or revoke the
Trust Agreement except in accordance with the terms thereof.
(b) Notwithstanding anything to the contrary in the Trust Agreement,
but subject always to the provisions of Section 14(c) hereof, Owner Participant
shall not consent to or direct a change in the situs of the Trust Estate so
long as a successor Owner Trustee meeting the requirements of the Trust
Agreement is reasonably available at the present situs of the Trust Estate (A)
unless the Indenture Trustee, the Original Head Lessee and Lessee shall have
been given [45 days'] prior notice thereof and (B) if, within [45 days] after
notice of such a proposed change is given to Lessee and the Original Head
Lessee, either (1) Lessee or Original Head Lessee delivers to Owner Participant
and Owner Trustee (at the expense of Owner Participant) an opinion of counsel,
which counsel shall be reasonably satisfactory to Owner Participant and Owner
Trustee, to the effect that such proposed change in the situs of the Trust
Estate would have an adverse effect on the rights or obligations of Lessee or
Original Head Lessee or (2) Lessee or Original Head Lessee delivers to Owner
Participant and Owner Trustee (at the expense of Owner Participant) an opinion
of counsel, which counsel shall be reasonably satisfactory to Owner Participant
and Owner Trustee, to the effect that such proposed change in the situs of the
Trust Estate would cause an increase in the amount for which Lessee may be
required to indemnify any Person pursuant to the provisions of Section 10 of
the Lease or for which Original Head Lessee is required to indemnify any Person
pursuant
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to the provisions of the Amended and Restated Head Lease TIA, unless any and
all Persons entitled to indemnification pursuant to such Section 10 of the
Lease or applicable provision of the Amended and Restated Head Lease TIA shall
waive indemnification under Section 10 of the Lease or applicable provision of
the Amended and Restated Head Lease TIA for any adverse tax or other
consequences to it of such a change in the situs of the Trust Estate, and (C)
unless Indenture Trustee receives from Owner Participant an opinion of counsel,
which counsel shall be reasonably satisfactory to Indenture Trustee, to the
effect that such proposed change in the situs of the Trust Estate would not
have an adverse effect on the validity or priority of the Lien of the Indenture
and that such Uniform Commercial Code and FAA filings as are required to
maintain the validity and priority of the Lien of Indenture have been made.
(c) Owner Participant agrees that if, at any time, the Trust Estate
has become, or in Lessee's good faith opinion will become, subject to any Taxes
for which it is indemnified pursuant to Section 10 of the Lease and if, as a
consequence thereof, Lessee should request that the situs of the trust be moved
to another state in the United States of America from the state in which it is
then located, the situs of the trust shall be moved and Owner Participant will
take whatever action may be requested by Lessee that is reasonably necessary to
accomplish such removal; provided that (A) Lessee shall provide such additional
tax indemnification with respect to such change of situs [and request of
Lessee] as Original Head Lessee, Owner Participant or the Indenture Trustee
[(subject to the exclusions set forth in Section 10(b) of the Lease and the
exclusions in Section [-] of the Amended and Restated Head Lease TIA)] may
reasonably request, (B) promptly after notice thereof Owner Participant has not
notified Lessee and provided reasonable evidence of an adverse effect on Owner
Participant's rights or obligations under the Trust Agreement, (C) Indenture
Trustee shall have received an opinion of counsel selected by Lessee, which
counsel shall be reasonably satisfactory to Indenture Trustee, to the effect
that the validity and priority of the Lien of the Indenture Estate will not be
adversely affected by such action, and that such Uniform Commercial Code and
FAA filings as are required to maintain the validity and the priority of the
Lien of the Indenture have been made, (D) Owner Participant and Indenture
Trustee shall have received an opinion or opinions of counsel [selected by
Owner Participant] to the effect that, with customary exceptions, (I) the
trust, as thus removed, shall remain a validly established trust, (II) any
amendments to the Trust Agreement or the Indenture necessitated by such removal
shall have been duly authorized, executed and delivered by the parties thereto
and shall constitute the legal, valid and binding obligations of such parties,
enforceable in accordance with their terms, (III) if such removal involves the
replacement of Owner Trustee, an opinion of counsel to such successor Owner
Trustee in form and substance reasonably satisfactory to Indenture Trustee and
to Owner Participant covering the matters described in the
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opinion described in Section 3(j) hereof, and (IV) covering such other matters
as Owner Participant or the Indenture Trustee may reasonably request, and (E)
Lessee shall indemnify and hold harmless [on an after tax basis] Owner Trustee,
Owner Participant [and their respective Affiliates] and Indenture Trustee
against any and all reasonable and actual costs and expenses including
reasonable attorneys' fees and disbursements, registration, recording or filing
fees and [other Taxes] incurred by Owner Trustee, Owner Participant [and their
respective Affiliates], or Indenture Trustee in connection with such change of
situs and shall indemnify and hold harmless Owner Participant [, Owner Trustee
and their respective Affiliates] [on an after tax basis] [(subject to the
exclusions set forth in Section 10(b) of the Lease [and Section [-] of the
Amended and Restated Sublease TIA])] from and against any Taxes that would not
have been imposed in the absence of such change in situs. [In no event shall
any change in situs of the trust affect Original Head Lessee's rights or
obligations under the Amended and Restated Head Lease TIA.]
(d) Owner Trustee or any successor may resign or be removed by Owner
Participant, a successor Owner Trustee may be appointed, and a corporation may
become Owner Trustee under the Trust Agreement, only in accordance with the
provisions of Article X of the Trust Agreement. Owner Participant agrees
promptly to appoint a successor Owner Trustee in the event that Owner
Participant has actual knowledge that Owner Trustee is not in compliance with
its covenants contained herein. No successor Owner Trustee shall be appointed
unless Lessee and Indenture Trustee shall have given written consent thereto,
which consent shall not be unreasonably withheld. Owner Participant will not
instruct Owner Trustee to terminate any Operative Document or take any action
thereunder in violation of the terms thereof. Owner Participant shall not
transfer any interest in the Trust Estate except in compliance with Section 10
hereof and the Trust Company shall not permit Owner Trustee to engage in any
business other than owning and leasing the Engine as contemplated hereby.
Lessee shall pay expenses [on an after tax basis] relating to the resignation
or, if requested by Lessee, the removal of Owner Trustee, provided that the
Owner Participant shall pay expenses relating to the removal of the Owner
Trustee, if such removal was solely at the request of the Owner Participant.
(e) The Original Head Lessee and the Parent Guarantor jointly and
severally covenants that after the Restatement Date the Trust Estate, the
Engine and each Part shall be free and clear of any Lien or disposition of
title created by or through Original Head Lessee, Parent Guarantor or any
Affiliate of either thereof which would have constituted a Sublessor's Lien had
the Sublease remained in effect.
SECTION 15. Certain Retained Rights and Releases. (a) Each of Owner
Trustee, Indenture Trustee and Owner Participant hereby agrees to and confirms
that they are bound by
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the assignments, delegations, releases and amendments set forth in or
contemplated by Lease Amendment No. 1.
(b) Each of Parent Guarantor, Original Head Lessee and Lessee agree
as amongst themselves that the following rights, benefits, obligations and
liabilities (such rights, benefits, obligations and liabilities, [together with
the rights and obligations under Section 15(c) below,] are, collectively, the
"Retained Sublease Rights and Obligations"), shall survive the termination of
the Sublease: (i) Original Head Lessee and Parent Guarantor shall retain all
rights and benefits, and Sublessee shall remain liable for all of its
obligations, under Sections 10 and 13 of the Sublease with respect to the
period [on or] prior to the Restatement Date and each of Parent Guarantor,
Original Head Lessee and Lessee shall retain all rights and liabilities under
any provision of the Sublease which by the express terms thereof survives the
termination or expiration thereof (including, without limitation, any such
liability arising on or after the Restatement Date under the Sublease in
respect of the period prior to, or acts or omissions or circumstances arising
prior to, the Restatement Date), (ii) all rights, benefits, obligations and
liabilities under the Sublease TIA and (iii) Original Head Lessee shall remain
liable to Sublessee under the Sublease for Sublessor's Liens (as therein
defined); all of which rights, benefits, obligations and liabilities shall
expressly survive the termination of the Sublease. In furtherance of the
foregoing, it is agreed that Original Head Lessee shall continue to be liable
to the Sublessee as and to the extent provided hereunder for removal of
Sublessor's Liens, if any, in existence on the Restatement Date.
(c) Each of the Lessee, Owner Trustee and Owner Participant agree as
among themselves that the following rights, benefits, obligations and
liabilities shall survive the termination of the Sublease: Owner Trustee, Owner
Participant and the other Indemnitees (as such term is defined in the Sublease)
shall retain all rights and benefits, and Sublessee shall remain liable for all
of its obligations under Section[s 10 and] 13 of the Sublease with respect to
the period on or prior to the Restatement Date and each of Lessee, Owner
Trustee and Owner Participant shall retain all rights and liabilities under any
provision of the Sublease which by its express terms thereof survives the
termination thereof (including, without limitation, any such liability arising
on or after the Restatement Date under the Sublease in respect of the period
prior to, or acts or omissions or circumstances arising prior to, [or on] the
Restatement Date), all of which rights, benefits, obligations and liabilities
shall expressly survive the termination of the Sublease. In furtherance of the
foregoing, it is agreed by Sublessee that the indemnities contained in
Section[s 10 and] 13 of the Sublease are expressly made for the benefit of and
shall be enforceable by each Indemnitee (as such term is defined in the
Sublease).
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(d) It is expressly understood and agreed by each of the parties
hereto that the Original Head Lessee and the Parent Guarantor shall, as of the
Restatement Date, have no liabilities or obligations under the "Operative
Documents" (as defined in the Original Lease) (as in effect immediately prior
to the Restatement Date) and are released from all such obligations and
liabilities, except the Original Head Lessee and the Parent Guarantor pursuant
to the Parent Head Lease Guaranty (i) shall continue to be liable to the
parties hereto for the removal of any Sublessor's Liens, and (ii) (without
releasing Sublessor as provided in the Sublease) each of the Original Head
Lessee, the Parent Guarantor, the Owner Trustee, the Indenture Trustee and the
Owner Participant agree as among themselves that all rights, benefits,
obligations and liabilities under Sections 7(c) and 7(d) of the Participation
Agreement with respect to the period [on or] prior to the Restatement Date and
under any other provision of the Participation Agreement which by the express
terms thereof survives the termination thereof (including, without limitation,
any such liability arising on or after the Restatement Date under the
Participation Agreement in respect of the period prior to, or acts or omissions
or circumstances arising prior to, [or on] the Restatement Date) shall survive
the termination of the Participation Agreement, the Original Lease and the
Parent Head Lease Guaranty, all of which rights, benefits, obligations and
liabilities shall expressly survive the termination of the Participation
Agreement (the foregoing rights, benefits, obligations and liabilities of
Parent Guarantor and Original Head Lessee, are, collectively, the "Retained
Head Lease Rights and Obligations"). In furtherance of the foregoing, the
parties hereto consent and agree that the Parent Guarantor is hereby released
from any and all "Obligations" under and as defined in the Parent Head Lease
Guaranty, except in respect of the Retained Head Lease Rights and Obligations
and except in respect of the Amended and Restated Head Lease TIA, the
"Obligations" in respect of which shall continue in full force and effect in
accordance with the Parent Head Lease Guaranty and are hereby ratified and
confirmed by the Parent Guarantor.
SECTION 16. Certain Additional Obligations of the Lessee, the Owner
Trustee, the Owner Participant and the Indenture Trustee. Each of Lessee,
Owner Trustee, Owner Participant and Indenture Trustee hereby covenants and
agrees for the benefit of each other that it will be bound by the terms of the
other Operative Documents to which it or its applicable trustee is a party,
and comply with and perform its agreements, covenants and indemnities set forth
in the other Operative Documents to which it or its applicable trustee is a
party, as amended, supplemented or otherwise modified from time to time as
permitted hereby.
SECTION 17. Lessee Protection of Title. Each of the Owner Trustee
and the Indenture Trustee agrees to execute and deliver such documents or other
instruments as the Lessee may reasonably request to enable the Lessee to
perform its
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obligations under Section 15 of the Lease for the benefit of such Person.
SECTION 18. Jurisdictional and Related Matters.
(a) Jurisdiction. Each of Owner Participant, Owner Trustee, Trust
Company, Indenture Trustee, Original Head Lessee, Parent Guarantor and Lessee
(i) hereby irrevocably submits for itself and its property to the nonexclusive
jurisdiction of the courts of the State of New York in New York County, and to
the nonexclusive jurisdiction of the United States District Court for the
Southern District of New York, for the purposes of any suit, action or other
proceeding arising out of this Agreement, the Lease or any other Operative
Document or any of the transactions contemplated hereby or thereby, and (ii)
hereby waives, and agrees not to assert, by way of motion, as a defense, or
otherwise, in any such suit, action or proceeding, to the extent permitted by
applicable law, any immunity (including, without limitation, sovereign
immunity), that the suit, action or proceeding is brought in an inconvenient
forum, that the venue of the suit, action or proceeding is improper, or that
this Agreement, the Lease or any other Operative Document or any of the
transactions contemplated hereby or thereby may not be enforced in or by such
courts.
(b) Service of Process. Lessee generally consents to service of
process by registered mail, return receipt requested, addressed to it at ▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ or such other office of Lessee as
from time to time may be designated by Lessee in writing to Owner Trustee,
Original Head Lessee, Owner Participant and Indenture Trustee. Parent
Guarantor hereby appoints Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, Attention:
▇▇▇▇ ▇▇▇▇▇▇/▇▇▇▇▇ ▇▇▇▇, located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
as its agent for service of process, and covenants and agrees that service of
process in any suit, action or proceeding may be made upon it at the office of
such agent or such other office of Parent Guarantor or such other agent, as
from time to time may be designated by Parent Guarantor in writing to Owner
Trustee, Owner Participant and Indenture Trustee. Original Head Lessee hereby
generally consents to service of process by registered mail, return receipt
requested, addressed to it at c/o GPA Corporation, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or such other office of Original Head Lessee as from
time to time may be designated by Original Head Lessee in writing to Owner
Trustee, Owner Participant and Indenture Trustee. Owner Participant generally
consents to service of process by registered mail, return receipt requested,
addressed to it at [______________________________________________] or such
other office of Owner Participant as from time to time may be designated by
Owner Participant in writing to Owner Trustee, Original Head Lessee, Lessee and
Indenture Trustee. Owner Trustee generally consents to service of process by
registered mail, return receipt requested, addressed to it at ▇▇▇▇▇▇ Square
North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
-▇▇-
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ or such other office of Owner Trustee as from time to time
may be designated by Owner Trustee in writing to Owner Participant, Original
Head Lessee, Lessee and Indenture Trustee. Indenture Trustee generally
consents to service of process by registered mail, return receipt requested,
addressed to it at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or
such other office of Indenture Trustee as from time to time may be designated
in writing to Owner Participant, Original Head Lessee, Owner Trustee and
Lessee.
(c) Judgments. A final judgment (the enforcement of which has not
been stayed) against Owner Participant, Owner Trustee, Lessee, Original Head
Lessee, Parent Guarantor and Indenture Trustee obtained in any suit in the
court of the State of New York in New York County or in the United States
District Court for the Southern District of New York shall be conclusive, and,
to the extent permitted by applicable law, may be enforced in other
jurisdictions by suit on the judgment, a certified or true copy of which shall
be conclusive evidence of the fact and of the amount of any indebtedness or
liability of Lessee therein described; provided that the plaintiff at its
option may bring suit, or institute other judicial proceedings against, Lessee
or any of its assets in the courts of any country or place where Lessee or such
assets may be found.
SECTION 19. Limitation on Recourse. The provisions of Section 2.03
of the Indenture are hereby incorporated herein by reference mutatis mutandis
as fully and with the same force and effect as if set forth in full.
SECTION 20. Notices. Unless otherwise specifically provided
herein, all notices required or permitted by the terms of this Agreement shall
be in English and in writing, and shall be sent to the Original Head Lessee,
the Parent Guarantor, Lessee, the Owner Participant, the Owner Trustee, the
Pass Through Trustee, the Subordination Agent or the Indenture Trustee, at
their respective addresses or facsimile numbers set forth below the signatures
of such parties at the foot of this Agreement and any such notice shall become
effective when received.
SECTION 21. Expenses. (a) Subject to receipt by the Original Head
Lessee of invoices therefor in reasonable detail prior to the Restatement Date,
all of the reasonable out-of-pocket costs, fees and expenses incurred by the
Lessee, the Owner Trustee, the Owner Participant, the Pass Through Trustee, the
Subordination Agent, the Liquidity Provider, the Indenture Trustee and the
Original Certificate Holders in connection with the transactions contemplated
by this Agreement, the other Operative Documents, the Lease, the Pass Through
Trust Agreements, the Intercreditor Agreement, the Liquidity Facilities and the
Underwriting Agreement (except, in each case, as otherwise provided therein)
shall be paid on or prior to the
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Closing by the Original Head Lessee, including, without limitation:
(1) the reasonable fees, expenses and disbursements allocable to the
Equipment Notes issued under the Indenture of (A) ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP,
special counsel for the Pass Through Trustee, the Subordination Agent and
the Indenture Trustee, (B) Morris, James, Hitchens & ▇▇▇▇▇▇▇▇, special
counsel for the Owner Trustee, (C) ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special
counsel in Oklahoma City, Oklahoma and (D) Milbank, Tweed, ▇▇▇▇▇▇ &
▇▇▇▇▇▇, special counsel for the Underwriters;
(2) the reasonable fees, expenses and disbursements of Hunton &
▇▇▇▇▇▇▇▇, special counsel for the Owner Participant;
(3) the fees, expenses and disbursements of ▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P.
and ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special counsel for the Lessee;
(4) underwriting fees and commissions;
(5) the initial fees and expenses of the Liquidity Provider, the
Pass Through Trustee, the Indenture Trustee, the Owner Trustee and the
Subordination Agent;
(6) the costs of filing and recording documents with the FAA and
filing Uniform Commercial Code financing statements in the United States
of America; and
(7) the reasonable fees, expenses and disbursements of White & Case,
special counsel for the Liquidity Provider.
(b) In the event that the transactions contemplated by this Section
21 and the agreements referred to herein are not consummated, the Original Head
Lessee shall bear and pay all costs, expenses and fees referred to in this
Section 21.
(c) The Lessee agrees to pay the amounts it is obligated to pay
under Section 21(j) of the Lease.
SECTION 22. Reliance of Liquidity Provider. Each of the parties
hereto agrees and acknowledges that the Liquidity Provider shall be a third
party beneficiary of each of the representations and warranties made herein by
such party, and that the Liquidity Provider may rely on such representations
and warranties to the same extent as if such representations and warranties
were made to the Liquidity Provider directly. The terms of this Agreement
shall inure to the benefit of the Liquidity Provider, its successors and
permitted assigns.
SECTION 23. Miscellaneous. Provided that the transactions
contemplated hereby have been consummated, and
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except as otherwise provided for herein, the representations, warranties and
agreements herein of the Original Lessee, the Parent Guarantor, the Lessee, the
Owner Trustee, the Indenture Trustee, the Owner Participant, the Subordination
Agent and the Pass Through Trustee, and the Original Lessee's, the Parent
Guarantor's, the Lessee's, the Owner Trustee's, the Indenture Trustee's, the
Owner Participant's, the Subordination Agent's and the Pass Through Trustee's
obligations under any and all thereof, shall survive the expiration or other
termination of this Agreement. This Agreement may be executed in any number of
counterparts (and each of the parties hereto shall not be required to execute
the same counterpart). Each counterpart of this Agreement, including a
signature page executed by each of the parties hereto, shall be an original
counterpart of this Agreement, but all of such counterparts together shall
constitute one instrument. Neither this Agreement nor any of the terms hereof
may be terminated, amended, supplemented, waived or modified orally, but only
by an instrument in writing signed by each [other] party hereto [affected
thereby]; and no such termination, amendment, supplement, waiver or
modification shall be effective unless a signed copy thereof shall have been
delivered to each party hereto. The index preceding this Agreement and the
headings of the various Sections of this Agreement are for convenience of
reference only and shall not modify, define, expand or limit any of the terms
or provisions hereof. The terms of this Agreement shall be binding upon, and
shall inure to the benefit of, the Original Head Lessee and its successors and
permitted assigns, the Parent Guarantor and its successors and permitted
assigns, the Lessee and its successors and permitted assigns, the Pass Through
Trustee and its successors as Pass Through Trustee (and any additional trustee
appointed) under any of the Pass Through Trust Agreements, the Indenture
Trustee and its successors as Indenture Trustee (and any additional Indenture
Trustee appointed) under the Indenture, the Subordination Agent and its
successors as Subordination Agent under the Intercreditor Agreement, the Owner
Trustee and its successors as Owner Trustee under the Trust Agreement, and the
Owner Participant and its successors and permitted assigns. No purchaser or
holder of any Equipment Notes shall be deemed to be a successor or assign of
any holder of the Original Certificates.
(b) Upon the release of the Engine from the lien of the Indenture
and the termination of the Indenture pursuant to and in accordance with Section
10.01 thereof, each requirement in the Operative Documents that the consent of
Indenture Trustee be obtained or that such Person be given notice shall be of
no further force and effect.
(c) The Lessee agrees for the express benefit of each of the
Indenture Trustee to perform its obligations under Section 8(k) of the Lease.
(d) The parties hereto agree for the benefit of the Lessee that the
Lessee can rely on the options, elections,
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determinations, consents, approvals, waivers and notices given, exercised or
made by the Owner Trustee under the Lease to the extent reserved to the Owner
Trustee pursuant to Section 5.10(d) of the Indenture.
(e) Notwithstanding anything to the contrary in any Operative
Document, the parties hereto hereby agree that the Put Termination Agreement
and the Deed of Indemnity (as such terms are defined herein) shall not
constitute Operative Documents or Financing Documents.
SECTION 24. Governing 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. THIS AGREEMENT IS BEING DELIVERED IN
THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers there unto duly authorized as of the
day and year first above written.
AMERICA WEST AIRLINES, INC.
By:
---------------------------------------
Name:
Title:
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telex: 755089 (Answerback: AMERWEST)
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Senior Vice President -
Legal Affairs
GPA LEASING USA I, INC.
By:
---------------------------------------
Name:
Title:
Address: c/o GPA Corporation
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Company Secretary
GPA GROUP plc
By:
---------------------------------------
Name:
Title:
Address: ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇▇-▇▇▇
Telecopier: 011-353-61360-000
Attention: Company Secretary
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WILMINGTON TRUST COMPANY, not in its individual
capacity, except as expressly provided herein, but
solely as Owner Trustee
By:
---------------------------------------
Name:
Title:
Address: ▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
[Owner Participant]
By:
---------------------------------------
Name:
Title:
Address:
Telephone:
Telecopier:
Attention:
FLEET NATIONAL BANK, not in its individual capacity,
except as otherwise provided herein, but solely as
Indenture Trustee
By:
---------------------------------------
Name:
Title:
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
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FLEET NATIONAL BANK, not in its individual capacity,
except as otherwise provided herein, but solely as
Subordination Agent
By:
---------------------------------------
Name:
Title:
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
FLEET NATIONAL BANK, not in its individual capacity,
except as otherwise provided herein, but solely as
Pass Through Trustee
By:
---------------------------------------
Name:
Title:
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
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SCHEDULE I to
Refunding Agreement
PASS THROUGH TRUST AGREEMENTS
1. Pass Through Trust Agreement, dated as of November __, 1996, among America
West Airlines, Inc. and Fleet National Bank, as supplemented by Trust
Supplement No. 1996-1A, dated November __, 1996.
2. Pass Through Trust Agreement, dated as of November __, 1996, among America
West Airlines, Inc. and Fleet National Bank, as supplemented by Trust
Supplement No. 1996-1B, dated November __, 1996.
3. Pass Through Trust Agreement, dated as of November __, 1996, among America
West Airlines, Inc. and Fleet National Bank, as supplemented by Trust
Supplement No. 1996-1C, dated November __, 1996.
4. Pass Through Trust Agreement, dated as of November __, 1996, among America
West Airlines, Inc. and Fleet National Bank, as supplemented by Trust
Supplement No. 1996-1D, dated November __, 1996.
5. Pass Through Trust Agreement, dated as of November __, 1996, among America
West Airlines, Inc. and Fleet National Bank, as supplemented by Trust
Supplement No. 1996-1E, dated November __, 1996.
58
SCHEDULE II to
Refunding Agreement
EQUIPMENT NOTES, PASS THROUGH TRUSTS AND PURCHASE PRICE
Interest Rate Principal Purchase
Pass Through Trusts and Maturity Amount Price
------------------- ------------- ------ -----
59
SCHEDULE III to
Refunding Agreement
HOLDERS OF EQUIPMENT NOTES
Payment Instructions
60
EXHIBIT A to
REFUNDING AGREEMENT
TRANSFEREE'S PARENT GUARANTEE
[GPA 1991 AWA-E1]
TRANSFEREE'S PARENT GUARANTEE [GPA 1991 AWA-E1], dated as of
____________ by _________________, a ________________________ corporation
("Guarantor") to and for the benefit of Indenture Trustee (individually and as
trustee), the Original Head Lessee, Owner Trustee and Lessee referred to in the
Refunding Agreement described below (collectively, together with their
permitted successors and assigns, "Beneficiaries" and, individually, a
"Beneficiary").
WITNESSETH:
WHEREAS, [______________________], a Delaware corporation
("Transferor"), is the Owner Participant under that certain Refunding Agreement
[GPA 1991 AWA-E1], dated as of November __, 1996 among Lessee, Original Head
Lessee, Parent Guarantor, Owner Trustee, Transferor, Pass Through Trustee,
Subordination Agent and Indenture Trustee, as amended, modified or supplemented
from time to time (the "Refunding Agreement");
WHEREAS, Transferor wishes to transfer, except to the extent
expressly reserved to Transferor, all of its right, title and interest in and
to the Refunding Agreement, the Trust Estate, the other Operative Documents to
which Transferor is a party, certain other agreements, instruments and
documents in its capacity as Owner Participant under the Refunding Agreement
and all proceeds therefrom as set forth in the Assignment and Assumption
Agreement dated the date hereof between Transferor and _____________________, a
________________________ corporation ("Transferee"); and
WHEREAS, the terms of the Refunding Agreement provide that the
aforementioned transfer is conditioned upon the execution and delivery of this
Guarantee by Guarantor;
NOW, THEREFORE, Guarantor hereby agrees with and for the benefit of
Beneficiaries as follows:
1. Definitions. As used in this Guarantee, terms defined in the
Refunding Agreement are used herein as therein defined, unless otherwise
defined herein.
2. Guarantee.
(a) Guarantor hereby unconditionally and irrevocably guarantees to
Beneficiaries and their respective successors, endorsees, transferees and
assigns, the prompt and complete payment by Transferee when due (whether at the
stated maturity, by acceleration or otherwise) of, and the faithful performance
of, and compliance with, all payment obligations of Transferee under the
Refunding Agreement, the Amended and Restated Head
61
Lease TIA and each other Operative Document to which Owner Participant is a
party and each other Operative Document to which Transferee is a party or by
which either is bound (collectively, the "Relevant Documents"), strictly in
accordance with the terms thereof and the timely performance of all other
obligations of Transferee thereunder (such payment and other obligations, the
"Obligations"), and Guarantor further agrees to pay any and all expenses
(including, without limitation, all fees and disbursements of counsel) that may
be paid or incurred by Beneficiaries in enforcing, or obtaining advice of
counsel in respect of, any rights with respect to, or collecting, any or all of
the Obligations and/or enforcing any rights with respect to, or collecting
against, Guarantor under this Guarantee.
(b) No payment or payments made by Transferee, Guarantor, any other
guarantor or any other Person or received or collected by any Beneficiary from
Transferee, Guarantor, any other guarantor or any other person by virtue of any
action or proceeding or any set-off or appropriation or application at any time
or from time to time in reduction of or in payment of the Obligations shall be
deemed to modify, reduce, release or otherwise affect the liability of
Guarantor hereunder until the Obligations are paid and performed in full.
(c) If for any reason any Obligation to be performed or observed by
Transferee (whether affirmative or negative in character) shall not be observed
or performed, or if any amount payable by Transferee referred to in Section
1(a) hereof shall not be paid promptly when due and payable, Guarantor shall
promptly perform or observe or cause to be performed or observed each such
Obligation or undertaking and shall forthwith pay such amount at the place and
to the person or entity entitled thereto pursuant to the Relevant Documents
regardless of whether or not Lessee, Original Head Lessee, Owner Trustee, Pass
Through Trustee, Subordination Agent, Indenture Trustee, or anyone on behalf of
any of them shall have instituted any suit, action or proceeding or exhausted
its remedies or taken any steps to enforce any rights against Transferee or any
other person or entity to compel any such performance or to collect all or any
part of such amount pursuant to the provisions of the Relevant Documents or at
law or in equity, or otherwise, and regardless of any other condition or
contingency.
3. No Subrogation. Notwithstanding any payment or payments made by
Guarantor hereunder or any set-off or application of funds of Guarantor by any
Beneficiary, Guarantor shall not be entitled to be subrogated to any of the
rights of any Beneficiary against Transferee or any collateral, security or
guarantee or right of set-off held by any Beneficiary for the payment of the
Obligations, nor shall Guarantor seek or be entitled to seek any reimbursement
from Transferee in respect of payments made by Guarantor hereunder, until all
amounts and performance owing to Beneficiaries by Transferee on account of the
Obligations are paid and performed in full.
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62
4. Amendments, etc., with respect to the Obligations; Waiver of
Rights. The Guarantor shall remain fully obligated hereunder notwithstanding
that, without any reservation of rights against the Guarantor and without
notice to or further assent by the Guarantor, any demand for payment or
performance of any of the Obligations made by any Beneficiary may be rescinded
by such party and any of the Obligations continued, and the Obligations, or the
liability of any other party upon or for any part thereof, or any collateral
security or guarantee therefor or right of offset with respect thereto, may,
from time to time, in whole or in part, be renewed, extended, amended,
modified, accelerated, compromised, waived, surrendered or released by any
Beneficiary and any Relevant Document and/or any collateral security document
or other guarantee or document in connection therewith, may be amended,
modified, supplemented or terminated, in whole or in part, as the parties
thereto may deem advisable from time to time, and any collateral security,
guarantee or right of offset at any time held by any beneficiary for the
payment or performance of the Obligations may be sold, exchanged, waived,
surrendered or released. No beneficiary shall have any obligation to protect,
secure, perfect or insure any lien at any time held by it as security for the
Obligations or for this Guarantee or any property subject thereto. When making
any demand hereunder against the Guarantor, a Beneficiary may, but shall be
under no obligation to, make a similar demand on the Transferee or any other
guarantor, and any failure by a Beneficiary to make any such demand or to
collect any payments from the Transferee or any such other guarantor or any
release of the Transferee or such other guarantor shall not relieve the
Guarantor of its obligations or liabilities hereunder, and shall not impair or
affect the rights and remedies, express or implied, or as a matter of law, of
any Beneficiary against the Guarantor. For purposes hereof, "demand" shall
include the commencement and continuance of any legal proceedings. The
Guarantor represents and warrants that it owns, directly or indirectly, at
least the portion of the capital stock of the Transferee required by the
Refunding Agreement and that, except as otherwise provided in Section 5 hereof,
its obligations hereunder shall continue unimpaired, even if the Guarantor no
longer owns, directly or indirectly, such portion of the capital stock of the
Transferee.
5. Transfer of Interest in Transferee. Guarantor shall not
assign, convey or otherwise transfer to any person (a) any of its interest in
Transferee unless in connection therewith, Guarantor assigns its rights and
obligations hereunder to a guarantor which meets the requirements of Section 10
of the Refunding Agreement; provided that nothing contained in this Section 5
shall be construed to prohibit any merger, consolidation or other corporate
restructuring of Transferee or Guarantor so long as the resulting corporation
meets the requirements of Section 10 of the Refunding Agreement and assumes the
obligations of the corporation merged or consolidated into.
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63
6. Guarantee Absolute and Unconditional. The Guarantor waives any
and all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by any Beneficiary upon this
Guarantee or acceptance of this Guarantee; the Obligations, and any of them,
shall conclusively be deemed to have been created, contracted or incurred, or
renewed, extended, amended or waived, in reliance upon this Guarantee; and all
dealings between the Transferee or the Guarantor and any Beneficiary shall
likewise be conclusively presumed to have been had or consummated in reliance
upon this Guarantee. The Guarantor waives diligence, presentment, protest,
demand for payment and notice of default or nonpayment to or upon the
Transferee or the Guarantor with respect to the Obligations. The Guarantor
understands and agrees that this Guarantee shall be construed as a continuing,
absolute and unconditional guarantee of payment and performance (and not merely
of collectibility) without regard to (a) the validity, regularity or
enforceability of any Relevant Document, any of the Obligations or any
collateral security therefor or guarantee or right of offset with respect
thereto at any time or from time to time held by any Beneficiary, (b) any
defense, set-off or counterclaim (other than a defense of payment or
performance) that may at any time be available to or be asserted by the
Transferee against any Beneficiary, or (c) any other circumstance whatsoever
(with or without notice to or knowledge of the Transferee or the Guarantor)
that constitutes, or might be construed to constitute, an equitable or legal
discharge of the Transferee for the Obligations, or of the Guarantor under this
Guarantee, in bankruptcy or in any other instance. When pursuing its rights
and remedies hereunder against the Guarantor, any Beneficiary may, but shall be
under no obligation to, pursue such rights and remedies as it may have against
the Transferee or any other person or entity or against any collateral security
or guarantee for the Obligations or any right of offset with respect thereto,
and any failure by any Beneficiary to pursue such other rights or remedies or
to collect any payments from the Transferee or any such other person or entity
or to realize upon any such collateral security or guarantee or to exercise any
such right of offset, or any release of the Transferee or any such other person
or entity or any such collateral security, guarantee or right of offset, shall
not relieve the Guarantor of any liability hereunder, and shall not impair or
affect the rights and remedies, whether express, implied or available as a
matter of law, of any Beneficiary against the Guarantor. This Guarantee shall
remain in full force and effect and be binding in accordance with and to the
extent of its terms upon the Guarantor and the successors and assigns thereof,
and shall inure to the benefit of the Beneficiaries, and their respective
successors, endorsees, transferees and assigns, until all of the Obligations
and the Obligations of the Guarantor under this Agreement shall have been
satisfied by payment and performance in full. The Guarantor further agrees
that, without limiting the generality of this Guarantee, if any Beneficiary (or
any assignee thereof) shall be prevented by applicable law from exercising its
remedies
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64
(or any of them) against the Transferee under any Operative Document, such
Beneficiary (or any assignee thereof) shall be entitled to receive hereunder
from the Guarantor, upon demand therefor, the sums that would have otherwise
been due from the Transferee had such remedies been able to be exercised.
7. Reinstatement. This Guarantee shall continue to be effective,
or be reinstated, as the case may be, if at any time payment, or any part
thereof, of any of the Obligations is rescinded or must otherwise be restored
or returned by any beneficiary upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the Transferee or the Guarantor, or upon or as
a result of the appointment of a receiver, intervenor or conservator of, or
trustee or similar officer for, the Transferee or the Guarantor or any
substantial part of its property, or otherwise, all as though such payments had
not been made. The Guarantor shall not commence any "case" (as defined in
Title 11 of the United States Code) against the Transferee.
8. Payments. The Guarantor hereby guarantees that payments
hereunder shall be paid without set-off, counterclaim, deduction or
withholding, and shall be made in U.S. Dollars.
9. Representations and Warranties. The Guarantor hereby represents
and warrants that:
(a) the Guarantor is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its
incorporation and has the corporate power and authority and the legal
right to own and operate its property, to lease the property it operates
and to conduct the business in which it is currently engaged;
(b) the Guarantor has the corporate power and authority and the
legal right to execute and deliver, and to perform its obligations under,
this Guarantee, and has taken all necessary corporate action to authorize
its execution, delivery and performance of this Guarantee;
(c) this Guarantee constitutes a legal, valid and binding obligation
of the Guarantor enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally;
(d) the execution, delivery and performance of this Guarantee will
not violate any provision of any requirement of law or contractual
obligation of the Guarantor and will not result in or require the creation
or imposition of any lien on any of the properties or revenues of the
Guarantor pursuant to any requirement of law or contractual obligation of
the Guarantor;
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65
(e) no consent or authorization of, filing with, or other act by or
in respect of, any arbitrator or governmental authority and no consent of
any other person (including, without limitation, any stockholder or
creditor of the Guarantor) is required in connection with the execution,
delivery, performance, validity or enforceability of this Guarantee;
(f) no litigation, investigation or proceeding of or before any
arbitrator or governmental authority is pending or, to the knowledge of
the Guarantor, threatened by or against the Guarantor or against any of
its properties or revenues (i) with respect to this Guarantee or any of
the transactions contemplated hereby or (ii) that could have a material
adverse effect on the business, operations, property or financial or other
condition of the Guarantor;
(g) the balance sheet of the Guarantor as at _________________ and
the related statement of income and retained earnings for the fiscal year
then ended (copies of which have heretofore been furnished to each
Beneficiary) have been prepared in accordance with generally accepted
accounting principles applied consistently throughout the period involved,
are complete and correct and present fairly the financial condition of the
Guarantor as at such date and the results of its operations for such
fiscal year; since such date there has been no material adverse change in
the business, operations, property or financial or other condition of the
Guarantor; the Guarantor has no material contingent obligation, contingent
liability or liability for taxes, long-term lease or unusual forward or
long-term commitment that is not reflected in the foregoing statements or
in the notes thereto; and
(h) the Guarantor is a bank, trust company or other like regulated
financial institution, or a corporation with a net worth of at least
$60,000,000.
10. Severability. Any provision of this Guarantee that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
11. No Waiver: Cumulative Remedies. No Beneficiary shall by any act
(except by a written instrument pursuant to Section 13 hereof), delay,
indulgence, omission or otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any breach of any of the terms and
conditions hereof. No failure to exercise, nor any delay in exercising, on the
part of any Beneficiary, any right, power or privilege hereunder shall operate
as a waiver thereof. No single or
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partial exercise of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by a Beneficiary of any right or remedy hereunder on any
one occasion shall not be construed as a bar to any right or remedy that such
Beneficiary would otherwise have on any future occasion. The rights and
remedies herein provided are cumulative, may be exercised singly or
concurrently and are not exclusive of any rights or remedies provided by law.
12. Integration. This Guarantee represents the entire agreement of
Guarantor with respect to the subject matter hereof and there are no promises
or representations by any Beneficiary relative to the subject matter hereof not
reflected herein.
13. Amendments and Waivers. None of the terms or provisions of this
Guarantee may be waived, amended or supplemented or otherwise modified except
by a written instrument executed by Guarantor and each Beneficiary.
14. Section Headings. The Section headings used in this Guarantee
are for convenience of reference only and not to affect the construction hereof
or be taken into consideration in the interpretation hereof.
15. Successors and Assigns. This Guarantee shall be binding upon
the successors and assigns of Guarantor and shall inure to the benefit of
Beneficiaries and their respective successors and assigns.
16. GOVERNING LAW. THIS GUARANTEE SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
17. Notices. All notices, requests and demands to or upon the
Guarantor or any Beneficiary to be effective shall be in writing or by
telegraph, telex or telecopy and, unless otherwise expressly provided herein,
shall be deemed to have been duly given or made when delivered by hand, or, in
the case of mail, two days after deposit in the postal system, first class
postage pre-paid, or, in the case of telegraphic notice, when sent, answerback
received, addressed to (a) in the case of the Guarantor, the address provided
on the signature page hereof, and (b) in the case of any Beneficiary, the
address provided for such party in the Refunding Agreement.
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IN WITNESS WHEREOF, the undersigned has caused this Guarantee to be
duly executed and delivered by its duly authorized officer as of the day and
the year first above written.
[NAME OF GUARANTOR]
By:
--------------------------
Title:
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EXHIBIT B to
REFUNDING AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT
[GPA 1991 AWA-E1]
ASSIGNMENT AND ASSUMPTION AGREEMENT [GPA 1991 AWA-E1] ("Assignment")
dated as of _____________, between ______________, a ___________ corporation
("Assignor") and ________________, a __________ corporation ("Assignee")
entered into for the benefit of Indenture Trustee, Owner Trustee, Original Head
Lessee and Lessee referred to in the Refunding Agreement mentioned below.
WITNESSETH:
WHEREAS, the parties hereto desire to effect (a) the transfer by
Assignor to Assignee of all of the right, title and interest of the Assignor
(except as reserved below) in, under and with respect to, among other things,
(i) the Refunding Agreement, dated as of November __, 1996, among American West
Airlines, Inc., Assignor, GPA Leasing USA I, Inc., GPA Group plc, Wilmington
Trust Company, as Owner Trustee, Fleet National Bank, as Pass Through Trustee,
[______________________], Fleet National Bank, as Subordination Agent, and
Fleet National Bank, as Indenture Trustee, as amended, modified or supplemented
from time to time (the "Refunding Agreement"), (ii) the Trust Agreement
identified in the Refunding Agreement, (iii) the Trust Estate (as defined in
the Trust Agreement), (iv) the Amended and Restated Head Lease TIA identified
in the Refunding Agreement, (v) the proceeds therefrom and (vi) the Indenture
(as defined in the Refunding Agreement) and (b) the assumption by Assignee of
the obligations of Assignor accruing thereunder;
NOW, THEREFORE, it is hereby agreed as follows:
1. Definitions. Capitalized terms used herein without definition
shall have the meaning ascribed thereto in the Refunding Agreement. For
purposes of this Assignment, the defined term "Operative Document" shall have
the meaning ascribed thereto in the Refunding Agreement and shall be deemed to
include the Amended and Restated Head Lease TIA.
2. Assignment. Assignor has sold, conveyed, assigned, transferred
and set over, and does hereby sell, convey, assign, transfer and set over, unto
Assignee, as of the date hereof, all of its right, title and interest in, under
and with respect to the Refunding Agreement, the Trust Agreement, the Trust
Estate, the Amended and Restated Head Lease TIA, the Indenture, all of the
other Operative Documents to which Assignor is a party or any other contract,
agreement, document or instrument relating to the Trust Estate by which
Assignor is bound, and any proceeds therefrom, together with all other
documents and instruments evidencing any of such right, title and interest,
except such rights of Assignor as have accrued to Assignor prior to the date
hereof (including specifically, but without limitation, the right to receive
any amounts due or accrued to Assignor under the Trust
69
Agreement as of a date prior to such date and the right to receive any
indemnity payment pursuant to the Refunding Agreement or the Lease with respect
to events occurring prior to such date).
3. Assumption. Assignee hereby undertakes all of the duties and
obligations of Assignor whenever accrued (other than duties and obligations of
Assignor required to be performed by it on or prior to the date hereof under
the Operative Documents to which Owner Participant is a party and any of the
other Operative Documents by which Assignor is bound or any other contract,
agreement, document or other instrument relating to the Trust Estate to which
Assignor is a party or by which it is bound), pursuant to the Trust Agreement
and any of the other Operative Documents by which Assignor is bound or any
other contract, agreement, document or other instrument relating to the Trust
Estate to which Assignor is a party or by which it is bound, and hereby
confirms that it shall be deemed a party to the Trust Agreement and shall be
bound by each of the other Operative Documents and each other contract,
agreement, document or other instrument relating to the Trust Estate to which
Assignor is a party or by which it is bound as if therein named as Trustor.
4. Release of Assignor. Except for liabilities not assumed as
provided in Section 3 hereof, upon the execution of this Assignment and
Assumption Agreement, Assignor shall have no further duty or obligation under
the Operative Documents to which Owner Participant is a party or under any of
the other Operative Documents by which Assignor is bound or under any other
contract, agreement, document or other instrument relating to the Trust Estate
to which Assignor is a party or by which it is bound; provided, however, that
Assignor shall in no event be released from any obligation under the Operative
Documents with respect to Claims or other claims thereunder by or against
Assignor which have accrued or been made prior to the date of transfer.
5. Appointment as Attorney-in-Fact. In furtherance of the within
assignment, Assignor hereby constitutes and appoints Assignee, and its
successors and assign, the true and lawful attorneys of Assignor, with full
power of substitution, in the name of Assignee or in the name of Assignor but
on behalf of and for the benefit of and at the expense of Assignee, to collect
for the account of Assignee all items sold, transferred or assigned to Assignee
pursuant hereto; to institute and prosecute, in the name of Assignor or
otherwise, but at the expense of Assignee, all proceedings that Assignee may
deem proper in order to collect, assert or enforce any claim, right or title of
any kind in or to the items sold, transferred or assigned; to defend and
compromise at the expense of Assignee any and all actions, suits or proceedings
as to title to or interest in any of the property acquired by Assignee; and to
do all such acts and things in relation thereto at the expense of Assignee as
Assignee shall reasonably deem advisable. Assignor hereby acknowledges that
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70
this appointment is coupled with an interest and is irrevocable by Assignor in
any manner or for any reason.
6. Payments. Assignor hereby covenants and agrees to pay over to
Assignee, if and when received following the date hereof, any amounts
(including any sums payable as interest in respect thereof) paid to or for the
benefit of Assignor that, under Section 2 hereof, belong to Assignee, and
Assignee hereby covenants and agrees to pay over to Assignor, if and when
received following the date hereof, any amounts (including any sums payable as
interest in respect thereof) paid to or for the benefit of Assignee that, under
Section 2 hereof, belong to Assignor.
7. Investment Purpose. Assignee hereby represents that it is
acquiring the Trust Estate interests and other interests hereby assigned to it
for its own account for the purpose of investment and not with a view to the
distribution or resale of either thereof.
8. Representations and Warranties. Assignee represents and warrants
that:
(a) it has all requisite power and authority and legal right to
enter into and carry out the transactions contemplated hereby and to carry
out and perform the transactions of Owner Participant as contemplated by
the Operative Documents;
(b) [reserved];
(c) on and as of the date hereof, the representations and warranties
of Owner Participant set forth in Section 9 of the Refunding Agreement and
as set forth in any other Agreement to which Owner Participant is a party
are true and correct as to Assignee;
(d) it is a permitted Transferee under Section 10 of the Refunding
Agreement;
(e) Assignee has a net worth of not less than $60,000,000.
9. Governing Law. This Assignment and Assumption Agreement shall be
governed by and construed in accordance with the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have executed this Assignment
and Assumption Agreement as of the day and year first above written.
[ASSIGNOR]
By:
----------------------
Title:
[ASSIGNEE]
By:
----------------------
Title:
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EXHIBIT C to
REFUNDING AGREEMENT
LIST OF COUNTRIES
Australia
Canada
Denmark
Finland
France
Germany
Iceland
Ireland
Japan
Luxembourg
Netherlands
New Zealand
Norway
Singapore
South Korea
Sweden
Switzerland
United Kingdom
73
EXHIBIT D to
REFUNDING AGREEMENT
FORM OF INSURANCE BROKER'S REPORT