-------------------------------------------------
PURCHASE, ASSIGNMENT AND ASSUMPTION AGREEMENT
(1993 737 C)
dated
as of December 1, 1997
between
RGL-2 CORPORATION,
as Assignor,
and
GENERAL BANK
as Assignee
One Boeing Model 737-522 Aircraft
Bearing U.S. Registration No. N953UA and
Manufacturer's Serial No. 26700
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CONTENTS
SECTION 1. Definitions.................................................................................... 2
SECTION 2. Sale and Assignment............................................................................ 2
SECTION 3. Purchase and Assumption........................................................................ 3
SECTION 4. Purchase Price................................................................................. 3
SECTION 5. Representations and Warranties of Assignor..................................................... 4
(a) Organization, Etc....................................................................... 4
(b) Corporate Authorization; Approvals; Execution and Delivery; Non-Contravention........... 4
(c) Valid and Binding Agreements............................................................ 4
(d) Approvals............................................................................... 5
(e) Litigation.............................................................................. 5
(f) No Liens................................................................................ 5
(g) Citizenship............................................................................. 5
(h) Event of Default........................................................................ 6
(i) Event of Loss........................................................................... 6
(j) Ownership and Encumbrances.............................................................. 6
(k) Brokers' Fees........................................................................... 6
(l) Operative Documents..................................................................... 6
(m) Compliance.............................................................................. 7
SECTION 6. Representations and Warranties of Assignee..................................................... 7
(a) Organization, Etc....................................................................... 7
(b) Corporate Authorization................................................................. 7
(c) Valid and Binding Agreements............................................................ 8
(d) Approvals............................................................................... 8
(e) Litigation.............................................................................. 8
(f) No Liens................................................................................ 8
(g) Citizenship............................................................................. 9
(h) Investment by Assignee; Securities Law.................................................. 9
(i) ERISA................................................................................... 9
(j) Broker's Fees........................................................................... 9
(k) Compliance; Transferee.................................................................. 9
SECTION 7. Conditions Precedent to the Obligations of Assignor............................................ 10
(a) Purchase Price.......................................................................... 10
(b) Due Authorization, Execution and Delivery............................................... 10
(c) Affidavit of Citizenship................................................................ 10
PAGE i
(d) Representations and Warranties......................................................... 10
(e) Corporate Matters...................................................................... 10
(f) Additional Information................................................................. 11
(g) Illegality............................................................................. 11
(h) No Proceedings......................................................................... 11
(i) Compliance with Operative Documents.................................................... 11
(j) No Event of Loss....................................................................... 11
(k) Opinions............................................................................... 11
SECTION 8. Conditions Precedent to the Obligations of Assignee........................................... 12
(a) Operative Documents.................................................................... 12
(b) Due Authorization, Execution and Delivery.............................................. 12
(c) Assignor Parent Guaranty............................................................... 12
(d) Certificate of Lessee.................................................................. 12
(e) Representations and Warranties......................................................... 12
(f) Corporate Matters...................................................................... 13
(g) Additional Information................................................................. 13
(h) Illegality............................................................................. 13
(i) No Proceedings......................................................................... 13
(j) Compliance with Operative Documents.................................................... 13
(k) No Event of Loss....................................................................... 13
(l) No Defaults............................................................................ 14
(m) Opinions............................................................................... 14
(n) Insurance.............................................................................. 14
SECTION 9. Payments...................................................................................... 14
SECTION 10. Certain Notices............................................................................... 14
SECTION 11. Further Assurances............................................................................ 15
SECTION 12. Taxes and Indemnities......................................................................... 15
(a) Transfer Taxes......................................................................... 15
(b) Assignee's Tax Indemnity............................................................... 15
(c) Assignor's Tax Indemnity............................................................... 15
(d) Assignor's Indemnity................................................................... 16
(e) Assignee's Indemnity................................................................... 16
(f) Notice of Claims....................................................................... 17
SECTION 13. Miscellaneous................................................................................. 17
(a) Notices................................................................................ 17
(b) Confidentiality........................................................................ 18
(c) Headings............................................................................... 19
PAGE ii
(d) References............................................................................... 19
(e) GOVERNING LAW............................................................................ 19
(f) Severability............................................................................. 19
(g) Amendments in Writing.................................................................... 19
(h) Survivales............................................................................... 20
(i) Expenses................................................................................. 20
(j) Execution in Counterparts................................................................ 20
(k) Entire Agreement......................................................................... 20
(l) Exhibits................................................................................. 20
(m) Successors and Assigns................................................................... 20
(n) Recovery of Costs and Fees............................................................... 21
(o) Third Party Benefit; Indemnification of Lessee........................................... 21
ATTACHMENTS:
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Exhibit A Assignment and Assumption Agreement (FAA)
Exhibit B Affidavit of Citizenship
Exhibit C Assignor Parent Guaranty
PAGE iii
PURCHASE, ASSIGNMENT AND ASSUMPTION AGREEMENT
(1993 737 C)
PURCHASE, ASSIGNMENT AND ASSUMPTION AGREEMENT (1993 737 C) dated as of
December 1, 1997 (this "AGREEMENT") between RGL-2 CORPORATION, a Delaware
corporation ("ASSIGNOR"), and GENERAL BANK, a California banking corporation
("ASSIGNEE"). Capitalized terms used herein without definition shall have the
meanings given them in Section 1.
WITNESSETH:
WHEREAS, Assignor desires to sell and assign to Assignee and Assignee
desires to purchase and assume from Assignor pursuant to the terms of that
certain Participation Agreement (1993 737 C) dated as of September 1, 1993 (as
amended to the date hereof, the "PARTICIPATION AGREEMENT"), by and among (i)
United Air Lines, Inc. ("LESSEE"), (ii) Assignor, (iii) Aetna Life Insurance
Company, State of Wisconsin Investment Board, American United Life Insurance
Company, Guarantee Trust Life Insurance Company, Physicians Life Insurance
Company, Physicians Mutual Insurance Company, World Insurance Company, Central
States Health & Life Company of Omaha, The Franklin Life Insurance Company and
Woodmen Accident and Life Company; (iv) General Electric Company ("GE"); (v)
Wilmington Trust Company, not in its individual capacity, except as expressly
provided therein, but solely as Owner Trustee under the Trust Agreement referred
to therein ("OWNER TRUSTEE"); and (vi) State Street Bank and Trust Company of
Connecticut, National Association, in its individual capacity and as Mortgagee
under the Trust Indenture ("MORTGAGEE"), except for Reserved Rights (as defined
in Section 2), (a) all of Assignor's right, title and interest in, to and under
(i) the Trust Estate and (ii) the Participation Agreement, the Tax Indemnity
Agreement and the Trust Agreement, and (b) excluding the Letter Agreement
Paragraph (as defined in Section 5(l)) and the Owner Participant Guaranty, all
of Assignor's right, title and interest, if any, in, to and under each other
Operative Document. The Participation Agreement, the Tax Indemnity Agreement
and the Trust Agreement are sometimes collectively referred to herein as the
"LESSOR DOCUMENTS"; and
WHEREAS, the Participation Agreement permits such sale, purchase,
assignment and assumption upon satisfaction of certain conditions heretofore or
concurrently being complied with.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements of the parties contained herein and for other good
PAGE 1
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Assignor and Assignee agree as follows:
SECTION 1. DEFINITIONS
Capitalized terms used but not defined herein shall have the meanings
specified in the Participation Agreement.
SECTION 2. SALE AND ASSIGNMENT
Subject to the terms and conditions of the Agreement, Assignor does hereby
sell, assign and transfer to Assignee at the Effective Time on the Closing Date
(in each case, as defined below) (a) all of Assignor's right, title and interest
in, to and under the Trust Estate and the Lessor Documents, and (b) excluding
the Letter Agreement Paragraph and the Owner Participant Guaranty, all of
Assignor's right, title and interest, if any, in, to and under each other
Operative Document (collectively, but excluding the Letter Agreement Paragraph,
the Owner Participant Guaranty and Reserved Rights (as defined below), the
"TRANSFERRED INTERESTS"); provided, that Assignor hereby reserves, and nothing
--------
herein shall be construed as a sale, assignment or transfer, of the following
(collectively, "RESERVED RIGHTS"): any of the rights, titles and interests of
Assignor in and to each and every indemnity or other payment, and each and every
obligation to provide insurance (other than casualty insurance relating to loss
of or damage to the Aircraft), on behalf or in favor of Assignor, under the
Lessor Documents or any other operative Document to the extent that such
indemnities, payments, and obligations relate to losses accruing prior to 12:32
p.m., Las Vegas time (the "EFFECTIVE TIME"), on December 15, 1997 (the "CLOSING
DATE") (it being agreed that Assignor retains all obligations related to
Reserved Rights); provided further, that such sale, assignment and transfer
shall be effective only upon the satisfaction or waiver, on or prior to the
Effective Time on the Closing Date, of the conditions set forth in Section 7,
such satisfaction to be evidenced by Assignor's acceptance from Assignee of the
Purchase Price (as defined in Section 4) and by the filing, or the release for
filing, with the FAA pursuant to the Act of the Assignment and Assumption
Agreement (FAA) (as defined in Section 5(a)).
The closing of the transactions contemplated hereby and by the Assignment
and Assumption Agreement (FAA) shall take place at the Effective Time on the
closing Date at McCarran International Airport, Las Vegas, Nevada, with
additional activities taking place at the offices of ▇▇▇▇▇▇▇ Coie, ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, or at such other location as
Assignor and Assignee shall agree.
SECTION 3. PURCHASE AND ASSUMPTION
Subject to the terms and conditions of this Agreement, Assignee does hereby
(i) purchase and accept the Transferred Interests, (ii) assume all the duties,
liabilities and obligations of Assignor in respect of the Transferred Interests
(except as described below) and (iii) confirms that it shall be deemed a party
to each Lessor Document, and agrees to be bound by all the terms and conditions
of each thereof and to undertake all of the obligations of Assignor contained in
the Lessor Documents, the Owner Participant Documents and other Operative
Documents as though originally named therein in place of Assignor, to the extent
of the right, title or interest being conveyed hereby or by the Assignment and
Assumption Agreement (FAA); provided, that Assignor shall remain liable for the
--------
duties, liabilities and obligations of Assignor vesting or relating to events
prior to the Effective Time on the Closing Date; provided further, that such
----------------
purchase, acceptance and assumption shall be effective only upon the
satisfaction or waiver, on or prior to the Effective Time on the Closing Date,
of the conditions set forth in Section 8, such satisfaction to be evidenced by
Assignee's payment to Assignor of the Purchase Price and by filing, or the
release for filing, with the FAA pursuant to the Act of the Assignment and
Assumption Agreement (FAA). Except as otherwise expressly provided herein
(including without limitation Section 12(d)), the assumption contemplated hereby
shall release Assignor from duties, liabilities and obligations under the
Operative Documents in respect of the Transferred Interests.
SECTION 4. PURCHASE PRICE
The purchase price for the Transferred Interests shall be $5,671,120.11
(the "PURCHASE PRICE"); at or prior to the Effective Time on the Closing Date,
Assignee shall pay the Purchase Price by wire transfer of immediately available
funds to:
Citibank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Account No.: ▇▇▇▇▇▇▇▇
ABA No.: ▇▇▇▇▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇,
tel. (▇▇▇) ▇▇▇-▇▇▇▇
in the name of RGL-2 Corporation, identified as "Sale of Equity Interest (1993
737 C)" or by such other means or to such other account at another institution
as the parties may agree.
PAGE 3
SECTION 5. REPRESENTATIONS AND WARRANTIES OF ASSIGNOR
Assignor makes the following representations and warranties to Assignee,
Lessee, Mortgagee, Certificate Holders, GE and Owner Trustee, in its capacity as
such and in its individual capacity:
(a) ORGANIZATION, ETC.
Assignor is a corporation duly organized and validly existing in good
standing under the laws of its jurisdiction of organization and is in good
standing in the state in which its principal business operations are located,
and has the corporate power and authority to carry on its business as now
conducted, to own or hold under lease its properties and to enter into and
perform its obligations under this Agreement and the Assignment and Assumption
Agreement (1993 737 C) substantially in the form of Exhibit A hereto (the
"ASSIGNMENT AND ASSUMPTION AGREEMENT (FAA)"; together with this Agreement, the
"ASSIGNOR AGREEMENTS").
(b) CORPORATE AUTHORIZATION; APPROVALS; EXECUTION AND DELIVERY;
NON-CONTRAVENTION
The Assignor Agreements have been duly authorized by all necessary
corporate action on the part of Assignor, do not require any approval not
already obtained of stockholders of Assignor or any approval or consent not
already obtained of any trustee or holders of any indebtedness or obligations of
Assignor, and have been duly executed and delivered by Assignor, and neither the
execution and delivery thereof by Assignor, nor the consummation of the
transactions contemplated thereby by Assignor, nor compliance by Assignor with
any of the terms and provisions thereof will contravene any law, judgment,
government rule, regulation or order applicable to or binding on Assignor (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 Owner Trustee, other than such laws, rules or regulations
relating to the citizenship requirements of Assignor under applicable aviation
law) or contravene or result in any breach of or constitute any default under,
or result in the creation of any Lien (other than the Lien of the Trust
Indenture) upon the Trust Estate under, any indenture, mortgage, chattel
mortgage, deed of trust, conditional sales contract, bank loan or credit
agreement, corporate charter, bylaw or other agreement or instrument to which
Assignor is a party or by which it or its properties may be bound or affected.
(c) VALID AND BINDING AGREEMENTS
Assuming the due authorization, execution and delivery by the other party
or parties thereto, each of the Assignor Agreements constitutes a legal, valid
and binding
PAGE 4
obligation of Assignor enforceable against Assignor in accordance with the terms
thereof.
(d) APPROVALS
Neither the execution and delivery by Assignor of this Agreement or the
Assignment and Assumption Agreement (FAA), nor the consummation by Assignor of
any of the transactions contemplated hereby or thereby, requires the consent or
approval of, the giving of notice to, the registration with, the recording or
filing of any document with, or the taking of any other action in respect of,
any federal or other governmental authority or agency, expect those contemplated
by the Assignor Agreements (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 Owner Trustee, other than such laws,
rules or regulations relating to the citizenship requirements of Assignor under
applicable United States aviation law).
(e) LITIGATION
There are no pending or, to the knowledge of Assignor, threatened actions
or proceedings against Assignor or The Boeing Company, a Delaware corporation
("ASSIGNOR PARENT"), before any court or administrative agency which, if
determined adversely to Assignor or Assignor Parent, would materially adversely
affect the financial condition of Assignor or Assignor Parent or the ability of
Assignor to perform its obligations under the Assignor Agreements or Assignor
Parent to perform its obligations under the Assignor Parent Guaranty (as defined
in Section 8(c)).
(f) NO LIENS
On the Closing Date, there will be no Lessor Liens (including for this
purpose Liens that would be Lessor Liens but for the proviso to the definition
of Lessor Liens) attributable to Assignor or any Affiliate thereof. To the
Knowledge of Assignor, there are no other Liens (other than Permitted Liens) in
respect of all or any part of the Trust Estate.
(g) CITIZENSHIP
On the date hereof and on the Closing Date, Assignor is and will be, as the
case may be, a "citizen of the United States" as defined in Section 40102(a)(15)
of part A of subtitle VII of title 49, United States Code and the FAA
regulations thereunder (a "CITIZEN OF THE UNITED STATES").
Page 5
(h) EVENT OF DEFAULT
There exists no Default or Event of Default (in each case, as defined in
the Trust Indenture) caused by or attributable to Assignor or any Affiliate
thereof. To the knowledge of Assignor there exists no Lease Default, Lease
Event of Default (in each case, as defined in the Trust Indenture), and, as to
acts or omissions of Persons other than Assignor, no Default or Event of Default
(as so defined).
(i) EVENT OF LOSS
To the knowledge of Assignor, there exists no Event of Loss or event which,
with notice or passage of time, or both, would constitute an Event of Loss.
(j) OWNERSHIP AND ENCUMBRANCES
Assignor is the sole beneficial owner of the Transferred Interests. Except
as expressly contemplated by the Operated Documents, Assignor has not previously
sold, assigned, encumbered, transferred or conveyed, and, except as contemplated
hereby, has no obligation to sell, assign, encumber, transfer or convey, any of
its right, title or interest in, to or under the Transferred Interests. At the
closing hereunder, Assignor will convey to Assignee all of the right, title and
interest of Assignor in, to and under the Transferred Interests.
(k) BROKERS' FEES
Assignee is not liable for the fees of any broker or other Person acting on
Assignor's behalf in connection with the transactions contemplated hereby.
(l) OPERATIVE DOCUMENTS
Except for (i) paragraph 3 of that certain letter agreement dated the
Delivery Date (the "LETTER AGREEMENT PARAGRAPH") between Lessee and Assignor
which is a portion of a Lessee Document that is no longer in effect with respect
to the Owner Participant after the Effective Time on the Closing Date and is not
otherwise effective with respect to the Transferred Interests, and (ii) the
Owner Participant Guaranty, each of which Assignor is not delivering to
Assignee, Assignor has provided Assignee with true and complete copies of the
Lessor Documents and each other Operative Document and other closing document
delivered to it on the Delivery Date. Except for this Agreement and any
agreement required hereunder, there are no other documents or agreements
relating to the Aircraft, the subject matter of the Operative Documents or the
transactions contemplated hereby to which Assignee is not a party that will
affect or bind Assignee after the Effective Time on the Closing Date.
(m) COMPLIANCE
Assignor has complied with, or received a waiver from the appropriate
parties for, the requirements of Assignor contained in the Operative Documents,
including without limitation Section 8(1) of the Participation Agreement, to
permit Assignor to transfer the Transferred Interests to Assignee.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF ASSIGNEE
Assignee makes the following representations and warranties to Assignor,
Lessee, Mortgagee, Certificate Holders, GE and Owner Trustee, in its capacity as
such and in its individual capacity:
(a) ORGANIZATION, ETC.
Assignee is a banking corporation, duly organized and validly existing in
good standing under the laws of its jurisdiction of incorporation and is in good
standing in the state in which its principal business operations are located,
and has the corporate power and authority to carry on its business as now
conducted, to own or hold under lease its properties and to enter into and
perform its obligations under this Agreement, the Assignment and Assumption
Agreement (FAA) and the Lessor Documents.
(b) CORPORATE AUTHORIZATION
This Agreement and the Assignment and Assumption Agreement (FAA) have been
duly authorized by all necessary corporate action on the part of Assignee, do
not require any approval not already obtained of stockholders of Assignee or any
approval or consent not already obtained of any trustee or holders of any
indebtedness or obligations of Assignee, and have been duly executed and
delivered by Assignee, and neither the execution and delivery thereof by
Assignee, nor the consummation of the transactions contemplated thereby or by
the Lessor Documents by Assignee, nor compliance by Assignee with any law,
judgment, governmental rule, regulation or order applicable to or binding on
Assignee (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 Owner Trustee, other than such laws, rules or regulations
relating to the citizenship requirements of Assignee under applicable aviation
law) or contravene or result in any breach of or constitute any default under,
or result in the creation of any Lien (other than Liens provided for or
otherwise permitted in the Operative Documents) upon the Trust Estate under, any
indenture, mortgage, chattel mortgage, deed of trust, conditional sales
contract, bank loan or credit agreement, corporate charter, bylaw or other
agreement or instrument to which Assignee is a party or by which it or its
properties may be bound or affected.
(c) VALID AND BINDING AGREEMENTS
Assuming the due authorization, execution and delivery by the other party
or parties thereto, this Agreement, the Assignment and Assumption Agreement
(FAA) and the Lessor Documents constitute the legal, valid and binding
obligations of Assignee enforceable against Assignee in accordance with the
respective terms thereof.
(d) APPROVALS
Neither the execution and delivery by Assignee of this Agreement or the
Assignment and Assumption Agreement (FAA), nor the consummation by Assignee of
any of the transactions contemplated hereby, thereby or by the Lessor Documents,
requires the consent or approval of, the giving of notice to, the registration
with, the recording or filing of any document with, or the taking of any other
action in respect of, any federal or other governmental authority or agency,
except those contemplated by this Agreement and the Assignment and Assumption
Agreement (FAA) (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 Owner Trustee, other than such laws, rules or
regulations relating to the citizenship requirements of Assignee under
applicable United States aviation law).
(e) LITIGATION
There are no pending or, to the knowledge of Assignee, threatened actions
or proceedings against Assignee before any court or administrative agency which,
if determined adversely to Assignee, would materially adversely affect the
financial condition of Assignee or the ability or Assignee to perform its
obligations under this Agreement, the Assignment and Assumption Agreement (FAA)
or the Lessor Documents.
(f) NO LIENS
On the Closing Date, there will be no Lessor Liens (including for this
purpose Liens that would be Lessor Liens but for the provision to the definition
of Lessor Liens) attributable to Assignee or any Affiliate thereof.
(g) CITIZENSHIP
On date hereof and on the Closing Date, Assignee is a Citizen of the United
States.
(h) INVESTMENT BY ASSIGNEE; SECURITIES LAW
Assignee is acquiring the Transferred Interests, including, without
limitation, its interest in the Trust Estate, with no present intent to make any
resale or distribution thereof which would require registration under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), and Assignee will not
offer or sell its interest in a manner which would require registration under
the Securities Act (subject nonetheless to any requirement of law that the
disposition of its properties shall at all times be and remain within its
control), and neither Assignee nor anyone acting on Assignee's behalf has
directly or indirectly offered any interest in the Trust Estate or any Loan
Certificates or any similar securities for sale to, or solicited any offer to
acquire any of the same from, anyone in a manner which would result in a
violation of the Securities Act.
(i) ERISA
No part of the funds to be used by Assignee to acquire its interests in the
Trust. Estate to be acquired by it under this Agreement and the Assignment and
Assumption Agreement (FAA) constitutes "plan assets" of any "employee benefit
plan" within the meaning of ERISA or of any "plan" within the meaning of Section
4975(e)(1) of the Code, as interpreted by the Department of Labor.
(j) BROKER'S FEES
No Person's acting on behalf of Assignee other than D'Accord Financial
Services, Inc. and TransCapital Corporation (the "Brokers") are or will be
entitled to any broker's fee, commission or finder's fee in connection with the
transactions contemplated hereby, and any such fees payable to the Brokers shall
be paid by Assignee.
(k) COMPLIANCE; TRANSFEREE
Assignee has complied with all requirements of Assignee contained in the
Operative Documents, including without limitation Section 8(l) of the
Participation Agreement, to permit Assignor to transfer the Transferred
Interests to Assignee. Assignee is, and meets all the requirements of, a
"Transferee" as defined in such Section 8(l).
SECTION 7. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF ASSIGNOR
The obligation of Assignor to sell and assign the Transferred Interests to
Assignee on the Closing Date is subject to the Satisfaction or waiver of the
following conditions:
PAGE 9
(a) PURCHASE PRICE
Assignee shall have paid the Purchase Price in the manner specified in
Section 4.
(b) DUE AUTHORIZATION, EXECUTION AND DELIVERY
This Agreement and the Assignment and Assumption Agreement (FAA) shall have
been duly authorized, executed and delivered by Assignee and, assuming due
execution and delivery by Assignor, the Assignment and Assumption Agreement
(FAA) shall have been duly filed or, if the FAA Aircraft Registry is not then
open, released for filing, with the FAA pursuant to the Act.
(c) AFFIDAVIT OF CITIZENSHIP
An affidavit of United States citizenship substantially in the form of
Exhibit B hereto (the "AFFIDAVIT OF CITIZENSHIP") shall have been duly
authorized, executed, notarized and delivered by an authorized official of
Assignee, and shall have been duly filed or, if the FAA Aircraft Registry is not
then open, released for filing, with the FAA pursuant to the Act.
(d) REPRESENTATIONS AND WARRANTIES
The representations and warranties of Assignee contained herein shall be
true and correct as of the Closing Date with the same force and effect as though
such representations and warranties had been made as of the Closing Date.
(e) CORPORATE MATTERS
Assignor shall have received copies of (i)(A) the Certificate of
Incorporation and By-Laws of Assignee, and (B) resolutions of the Board of
Directors of Assignee duly authorizing the execution, delivery and performance
by Assignee of this Agreement and the Assignment and Assumption Agreement (FAA)
and the performance of its obligations under the Lessor Documents, in each case
certified by the Secretary or an Assistant Secretary of Assignee as of the
Closing Date, together with (ii) an incumbency certificate as to the person or
persons authorized to execute and deliver this Agreement and the Assignment and
Assumption Agreement (FAA) on behalf of Assignee, duly executed by the
Secretary or an Assistant Secretary of Assignee as of the Closing Date.
(f) ADDITIONAL INFORMATION
Assignor shall have received such other documents and evidence with respect
to Assignee as Assignor may reasonably request in order to establish the
authority of
PAGE 10
Assignee to consummate the transactions contemplated by this Agreement, the
consummation of the transactions contemplated by this Agreement, the taking of
all appropriate corporate action in connection therewith and compliance with the
conditions set forth in this Agreement.
(g) ILLEGALITY
On the Closing Date, the performance of the transactions contemplated
hereby, upon the terms and conditions set forth herein, shall not, in the
reasonable judgement of Assignor, violate, and shall not subject Assignor to any
penalty or liability under, any law, rule or regulation binding upon Assignor.
(h) NO PROCEEDINGS
On the Closing Date, no legal or governmental action, suit or proceeding
shall have been instituted or threatened before any court, administrative
agency or tribunal, nor shall any order, judgment or decree have been issued or
proposed to be issued by any court, administrative agency or tribunal to set
aside, restrain, enjoin or prevent the consummation of this Agreement or the
transactions contemplated hereby.
(i) COMPLIANCE WITH OPERATIVE DOCUMENTS
Assignee shall have complied with all requirements of Assignee under the
Operative Documents for transfer of the Transferred Interests, such that
Assignor shall be released from all duties, liabilities and obligations under
the Participation Agreement, the Trust Agreement, the Tax Indemnity Agreement
and all other Operative Documents in respect of the Transferred Interests
accruing or arising from and after the Effective Time on the Closing Date.
(j) NO EVENT OF LOSS
On the Closing Date, there shall not exist an Event of Loss.
(k) OPINIONS
Assignor shall have received opinions reasonably satisfactory to Assignor,
dated the Closing Date, from (i) Buchalter, Nemer, Fields & Younger, special
counsel to Assignee, and (ii) ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇, special FAA counsel in
Oklahoma City ("SPECIAL FAA COUNSEL"), in each case with respect to such matters
and to such effect as Assignor shall reasonably request, which shall include, in
the case of the opinion referred to in clause (i) above, the opinions required
by Sections 8(l)(ii) and 8(l)(R) of the Participation Agreement (other than, in
the case of any opinion required under
PAGE 11
such Section 8(1)(R), as such requirement relates to Section 8(1)(O) of the
Participation Agreement).
SECTION 8. Conditions Precedent to the Obligations of Assignee
The obligation of Assignee to purchase the Transferred Interests from
Assignor and assume the obligations related thereto are subject to the
satisfaction or waiver of the following conditions:
(a) Operative Documents
The Operative Documents other than the Letter Agreement Paragraph and the
Owner Participant Guaranty shall be in full force and effect.
(b) Due Authorization, Execution and Delivery
This Agreement and the Assignment and Assumption Agreement (FAA) shall have
been duly authorized, executed and delivered by Assignor, and, assuming due
execution and delivery by Assignee, the Assignment and Assumption Agreement
(FAA) shall have been duly filed, or, if the FAA Aircraft Registry is not then
open, released for filing, with the FAA pursuant to the Act.
(c) Assignor Parent Guaranty
A guaranty of certain obligations of Assignor hereunder substantially in
the form of Exhibit C hereto (the "Assignor Parent Guaranty"), shall have been
duly authorized, executed and delivered by Assignor Parent.
(d) Certificate of Lessee
Lessee shall have provided to Assignee a certificate of an officer of
Lessee as to the signer's knowledge of the existence of any condition or event
which constitutes a Default or Event of Default.
(e) Representations and Warranties
The representations and warranties of Assignor contained herein shall be
true and correct as of the Closing Date with the same force and effect as though
such representations and warranties had been made as of the Closing Date.
(f) Corporate Matters
Assignee shall have received copies of (i)(A) the Certificate of
Incorporation and By-Laws of Assignor, (B) resolutions of the Board of Directors
of Assignor duly
Page 12
authorizing the execution, delivery and performance by Assignor of the Assignor
Agreements and (C) related resolutions of the shareholder of Assignor, in each
case certified by an Assistant Secretary of Assignor as of the Closing Date,
together with (ii) an incumbency certificate as to the person or persons
authorized to execute and deliver the Assignor Agreements on behalf of Assignor,
duly executed by an Assistant Secretary of Assignor as of the Closing Date.
(g) ADDITIONAL INFORMATION
Assignee shall have received such other documents and evidence with
respect to Assignor as Assignee may reasonably request in order to establish the
authority of Assignor to consummate the transactions contemplated by this
Agreement, the consummation of the transactions contemplated by this Agreement,
the taking of all appropriate corporate action in connection therewith and
compliance with the conditions set forth in this Agreement.
(h) ILLEGALITY
On the Closing Date, the performance of the transactions contemplated
hereby, upon the terms and conditions set forth herein, shall not, in the
reasonable judgement of Assignee, violate, and shall not subject Assignee to
any penalty or liability under, any law, rule or regulation binding upon
Assignee.
(i) NO PROCEEDINGS
On the Closing Date, no legal or governmental action, suit or proceeding
shall have been instituted or threatened before any court, administrative agency
or tribunal, nor shall any order, judgment or decree have been issued or
proposed to be issued by any court, administrative agency or tribunal to set
aside, restrain, enjoin or prevent the consummation of this Agreement or the
transactions contemplated hereby.
(j) COMPLIANCE WITH OPERATIVE DOCUMENTS
Assignor shall have complied with all requirements of Assignor under the
Operative Documents for transfer of the Transferred Interests.
(k) NO EVENT OF LOSS
On the Closing Date, there shall not exist an Event of Loss.
(l) NO DEFAULTS
On the Closing Date, after giving effect to the consummation of the
transactions contemplated hereby, there shall not exist any Lease Default, Lease
Event
Page 13
of Default, Default or Event of Default, as each such term is defined in the
Trust Indenture.
(m) OPINIONS
Assignee shall have received opinions reasonably satisfactory to
Assignee, dated the Closing Date, from (i) ▇▇▇▇▇▇▇ Coie, special counsel to
Assignor, (ii) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., Counsel, Office of the General Counsel
of Boeing, and (iii) Special FAA Counsel, in each case with respect to such
matters and to such effect as Assignee shall reasonably request.
(n) INSURANCE
Assignee shall have received a broker's report and insurance certificates
from Lessee's independent aircraft insurance broker substantially in the form of
the report and certificates delivered on the Delivery Date pursuant to Section
4(a)(xxi) of the Participation Agreement, with Assignee included as an
Additional Insured thereunder.
SECTION 9. PAYMENTS
Assignor hereby covenants and agrees promptly to pay over to Assignee, if
and when received, any amounts paid to or for the benefit of Assignor that
constitute Transferred Interests, and until so paid over any such amounts
received by Assignor shall be received and held by Assignor in trust for
Assignee. Assignee hereby covenants and agrees promptly to pay over to Assignor,
if and when received, any amounts paid to or for the benefit of Assignee that
constitute Reserved Rights, and until so paid over any such amounts received by
Assignee shall be received and held by Assignee in trust for Assignor.
SECTION 10. CERTAIN NOTICES
Assignor hereby covenants and agrees promptly to forward to Assignee any
notice Assignor receives from any party to any Operative Document (other than
Assignee) pursuant to and in accordance with this Agreement, the Assignment and
Assumption Agreement (FAA), the Lessor Documents, or any other Operative
Document except to the extent solely related to Reserved Rights. Assignee hereby
covenants and agrees promptly to forward to Assignor any notice Assignee
receives from any party to any Operative Document (other than Assignor) pursuant
to and in accordance with this Agreement, the Assignment and Assumption
Agreement (FAA), the Lessor Documents, or any other Operative Document related
to the Reserved Rights.
Page 14
SECTION 11. FURTHER ASSURANCES
Each party agrees, upon the reasonable request of the other party, at any
time and from time to time, promptly to execute and deliver all such further
documents, and promptly to take and forbear from all such action, as may be
reasonably necessary or appropriate in order more effectively to confirm or
carry out the provisions of this Agreement.
SECTION 12. TAXES AND INDEMNITIES
(a) TRANSFER TAXES
Assignee hereby covenants and agrees that Assignee shall pay any and all
sales taxes, use taxes and similar transfer taxes (including, without
limitation, any charges, such as gross receipts taxes, in lieu thereof)
(collectively, "TRANSFER TAXES"), and any registration, document or filing fees,
that may be imposed in connection with the sale, assignment and transfer of the
Transferred Interests, including, without limitation, those relating to the
transfer of rights and other interests in and to, and the assumptions of
duties, liabilities and obligations in, to and under this Agreement, the
Assignment and Assumption Agreement (FAA), the Transferred Interests, the
Aircraft and the Operative Documents.
(b) ASSIGNEE'S TAX INDEMNITY
Assignee hereby covenants and agrees to indemnify, protect, defend, save
and keep harmless Assignor, on an after tax basis, against all fees, duties,
taxes, levies, charges or withholdings of any kind or nature whatever, and any
penalties, fines or interest thereon in addition thereto ("TAXES") that are
imposed with regard to the Transferred Interests with respect to any actions,
omissions, events or occurrences arising during any period after the Effective
Time on the Closing Date; provided however, that Assignee shall not be required
-------- -------
to indemnify Assignor under this Section 12(b) for any net income or Washington
State business and occupation taxes imposed with respect to the sale, assignment
and transfer of the Transferred Interests.
(c) ASSIGNOR'S TAX INDEMNITY
Except as expressly provided elsewhere herein, Assignor hereby covenants
and agrees to indemnify, protect, defend, save and keep harmless, Assignee, on
an after-tax basis, from and against any and all fees, duties, taxes, levies,
charges or withholdings of any kind or nature whatsoever, and any penalties,
fines, or interest thereon or other additions thereto, which at any time or from
time to time may be imposed on or with respect to, or asserted against, the
Transferred Interests, the Aircraft or any part thereof or any interest therein,
or Assignee, by any federal, state,
Page 15
local or foreign government or taxing authority in connection with or relating
to this Agreement, the Assignment and Assumption Agreement (FAA), the
Transferred Interests, the Aircraft and the Operative Documents, and which are
attributable to the period prior to the Effective Time on the Closing Date, or
to acts, omissions, events or occurrences arising prior to the Effective Time
on the Closing Date; provided that Assignor shall not be required to pay or
--------
indemnify Assignee for taxes on or measured by the net income of Assignee.
(d) ASSIGNOR'S INDEMNITY
Assign hereby covenants and agrees upon demand of Assignee to pay and
assume liability for, and indemnify, protect, defend, save and keep harmless
Assignee, on an after-tax basis, from and against any and all liabilities,
taxes, fees, duties, charges, withholdings, obligations, losses, damages,
settlements, claims, actions, suits, penalties, costs and expenses (including,
without limitation, reasonable fees and expenses of counsel) of whatsoever kind
and nature which may at any time or from time to time be imposed upon, incurred
by or asserted against Assignee or any of its Affiliates, successors, agents,
servants, representatives, directors or officers in any way relating to,
resulting from or arising out of (i) any inaccuracy or breach of any
representation or warranty made by Assignor under this Agreement or the
Assignment and Assumption Agreement (FAA), (ii) any inaccuracy or breach of any
representation or warranty made by Assignor under the Operative Documents in
respect of or to the extent attributable to the period prior to the Effective
Time on the Closing Date or (iii) any failure by Assignor to have observed or
performed any of its obligations under or in connection with the Operative
Documents in respect of or to the extent attributable to the period prior to the
Effective Time on the Closing Date.
(e) ASSIGNEE'S INDEMNITY
(i) Assignee hereby covenants and agrees upon demand of Assignor to pay
and assume liability for, and indemnify, protect, defend, save and keep
harmless, Assignor, on an after-tax basis, from and against any and all
liabilities, taxes, fees, duties, charges, withholdings, obligations, losses,
damages, settlements,claims,actions, suits, penalties, costs and expenses
(including, without limitation, reasonable fees and expenses of counsel) of
whatsoever kind and nature which may at any time or from time to time be imposed
upon, incurred by or asserted against Assignor or any of its Affiliates, agents,
servants, representatives, directors or officers in any way relating to,
resulting from or arising out of any inaccuracy or breach of any representation
or warranty made by Assignee under this Agreement or the Assignment and
Assumption Agreement (FAA), or any failure by Assignee to have observed or
performed any of its obligations under or in connection with the Operative
Documents
PAGE 16
in respect of or to the extent attributable to the period from and after the
Effective Time on the Closing Date.
(ii) Assignee hereby acknowledges and agrees that in the event Assignee
shall cause any of the Operative Documents to be modified or amended as a result
of any action of Assignee in a manner that has an adverse effect upon the
Reserved Rights as of the Effective Time on the Closing Date, Assignee shall
indemnify, protect, defend, save and keep harmless, Assignor to the same extent
as if such modification or amendment had not occurred.
(f) NOTICE OF CLAIMS
Each of Assignor and Assignee agrees to provide written notification to the
other party promptly after becoming aware of any liability, obligation or claim,
whether pending or threatened, that is the subject of indemnification pursuant
to this Section 12; provided that the failure by either party to so notify the
--------
other party will not in any manner affect either party's obligations under this
Section 12.
SECTION 13. MISCELLANEOUS
(a) NOTICES
All notices, demands, declarations and other communications required by
this Agreement shall be in writing and shall be effective (i) if given by
facsimile, when transmitted, (ii) if given by registered or certified mail,
three Business Days after being deposited with the U.S. Postal Service and
(iii) if given by a nationally recognized overnight courier, when received, or,
if personally delivered, when so delivered, addressed:
If to Assignor, to:
c/o The Boeing Company
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
M/S 68-34
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as Assignor shall from time to time designate
in writing to Assignee; and
PAGE 17
If to Assignee, to:
General Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇
Executive Vice President
and Chief Financial Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as Assignee may from time to time
designate in writing to Assignor.
(b) CONFIDENTIALITY
Assignor and Assignee each agree to use its best efforts, acting
reasonably and diligently, to treat this Agreement and the terms hereof as
confidential and not to disclose, without the prior written consent of the
other, the terms hereof to any other Person except (i) to such party's
directors, officers, partners, employees, legal counsel, accountants, auditors,
financial advisors and/or other professionals and consultants who agree to hold
such information confidential, but only to the extent such party deems such
disclosure necessary or appropriate to accomplish the proper business purposes
of such party, (ii) to any accountants or auditors retained by such party who
agree to hold such information confidential, if and when such disclosure is
necessary in connection with the examination and reporting on the books and
records and/or the financial condition of such party, and then only to the
extent necessary, (iii) if and when such party is required to do so pursuant to
any order, subpoena, summons, or other legal process issued by any court,
governmental body, or governmental investigator, by which it is legally bound to
produce the same, and then only to the extent so required, (iv) if and when such
party is required to do so pursuant to any order, directive, or request by any
governmental agency having supervisory authority over its operations and
administration and then only to the extent so required, or (v) to such party's
successors and assigns who agree to hold such information confidential.
Notwithstanding any provision to the contrary contained in this Section
13(b), Assignor and Assignee, and each of them, shall not be prohibited from
making any disclosure with respect to the terms hereof, which may be disclosed
in any public records of any kind or otherwise in the public domain (except as
a result of a disclosure by such party in violation of this Section 13(b)).
PAGE 18
(c) HEADINGS
Headings used herein are for convenience only and shall not in any way
affect the construction of, or be taken into consideration in interpreting, this
Agreement.
(d) REFERENCES
Any reference to a specific Section or Section number shall be interpreted
as a reference to that Section of this Agreement unless otherwise expressly
provided.
(e) GOVERNING LAW
THIS AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, WITHOUT GIVING EFFECT TO PRINCIPLES OF
CONFLICTS OF LAW.
(f) SEVERABILITY
If any provision hereof should be held invalid, illegal or unenforceable in
any respect in any jurisdiction, then, to the fullest extent permitted by law,
(i) all other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be construed in order to carry out the intentions of the
parties hereto as nearly as may be possible, and (ii) such invalidity,
illegality or unenforceability shall not affect the validity, legality or
enforceability of such provision in any other jurisdiction.
(g) AMENDMENTS IN WRITING
No amendment, modification, waiver, termination or discharge of any
provision of this Agreement, or any consent to any departure by Assignor or
Assignee from any provison hereof, shall in any event be effective unless the
same shall be in writing and signed by Assignor and Assignee, and each such
amendment, modification, waiver, termination or discharge shall be effective
only in the specific instance and for the specific purpose for which given;
provided, that in no event shall Assignor and Assignee amend, modify or waive
--------
Sections 3, 6, 13(e), 13(o) or this Section 13(g) without the prior written
consents of Owner Trustee, Lessee, GE and Mortgagee, which consents shall not
be unreasonably withheld or delayed. No provision of this Agreement shall be
varied, contradicted or explained by any oral agreement, course of dealing or
performance or any other matter not set forth in an agreement in writing and
signed by Assignor and Assignee.
PAGE 19
(h) Survival
Notwithstanding anything contained herein to the contrary, all agreements,
indemnities, representations and warranties contained in this Agreement shall
survive the Effective Time on the closing Date and the expiration or other
termination hereof.
(i) Expenses
Each of Assignor and Assignee shall be responsible for its own costs and
expenses incurred in connection with the negotiation, execution and delivery of
this Agreement, the Assignment and Assumption Agreement (FAA) and any other
agreements, documents, certificates and instruments relating hereto and thereto,
and shall not have any right of reimbursement or indemnity for such costs and
expenses as against the other party; provided, that, as between Assignor and
--------
Assignee, (i) Assignor shall be responsible for all of the fees and expenses of
Special FAA Counsel and (ii) Assignee shall be responsible for any Aircraft
appraisal prepared for Assignee.
(j) Execution in Counterparts
This Agreement and any amendments, waivers or consents hereto may be
executed by Assignor and Assignee in separate counterparts (or upon separate
signature pages bound together into one or more counterparts), each of which,
when so executed and delivered, shall be an original, but all such counterparts
shall together constitute one and the same instrument.
(k) Entire Agreement
This Agreement and the Assignment and Assumption Agreement (FAA), on and as
of the date hereof, constitute the entire agreement of Assignor and Assignee
with respect to the subject matter hereof or thereof, and all prior or
contemporaneous understandings or agreements, whether written or oral, between
Assignor and Assignee with respect to such subject matter are hereby superseded
in their entirety.
(l) Exhibits
The exhibits attached hereto are incorporated by reference herein and shall
have the same force and effect with respect to the provisions set forth therein
as though fully set forth in this Agreement.
(m) Successors and Assigns
This Agreement shall be binding upon, shall inure to the benefit of and
shall be enforceable by Assignor and Assignee, and their respective successors
and assigns.
Page 20
(n) RECOVERY OF COSTS AND FEES
If any suit or action arising out of or related to this Agreement is
brought by either party, the prevailing party shall be entitled to recover the
costs and fees (including without limitation reasonable attorneys' fees)
incurred by such party in such suit or action, including without limitation any
post-trial or appellate proceeding, or in the collection or enforcement or any
judgment or award entered or made in such suit or action.
(o) THIRD PARTY BENEFIT; INDEMNIFICATION OF LESSEE
Assignor and Assignee agree that the provisions of this Agreement,
including, without limitation, Section 3, are for the sole benefit of Assignor,
Assignee, Owner Trustee, Lessee, GE, Mortgagee (and with respect to Section 6,
Certificate Holders) and their respective successors and assigns, and are not
for the benefit, directly or indirectly, of any other Person. Assignor further
agrees, for the sole benefit of Lessee, that, in accordance with Section 8(l) of
the Participation Agreement (i) Assignor hereby assumes the risk of any loss of
Interest Deductions and MACRS Deductions or any Inclusion Event (each as defined
in the Tax Indemnity Agreement) resulting directly from the transfer of the
Transferred Interest to Assignee and (ii) Assignor hereby indemnifies Lessee for
any loss of tax benefits to or increase in the tax liability of Lessee as a
result of the transfer of the Transferred Interests to Assignee (it being
understood that this is not intended to require that Assignor indemnify Lessee
against an indemnity obligation of Lessee to Assignee under either: (A) the Tax
Indemnity Agreement, or (B) Section 7(b) of the Participation Agreement, in each
case that is greater than the indemnity obligation that would have been owing to
Assignor because of a difference in the circumstances of Assignor and Assignee).
PAGE 21
IN WITNESS WHEREOF, the undersigned have caused this Purchase, Assignment
and Assumption Agreement (1993 737 C) to be duly executed as of the day and year
first written above.
RGL-2 CORPORATION
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Treasurer
GENERAL BANK
By /s/ ▇▇▇▇▇ ▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: EVP & CFO
-------------------------
EXHIBIT A TO PURCHASE,
ASSIGNMENT AND ASSUMPTION
AGREEMENT (1993 737 C)
-------------------------
ASSIGNMENT AND ASSUMPTION AGREEMENT
(1993 737 C)
ASSIGNMENT AND ASSUMPTION AGREEMENT (1993 737 C), dated December __, 1997
(this "Agreement"), between RGL-2 Corporation, a Delaware corporation
("Assignor"), and General Bank, a California banking corporation ("Assignee").
Capitalized terms used herein without definition shall have the meanings given
them in Section 7.
WHEREAS, pursuant to the transactions contemplated by the Trust Agreement
(1993 737 C), dated as of September 1, 1993 (the "Trust Agreement"), between
Assignor and Wilmington Trust Company ("Owner Trustee"), United Air Lines, Inc.
("Lessee") leased from Owner Trustee one Boeing 737-522 airframe bearing
manufacturer's serial number 26700 and U.S. Registration number N953UA together
with two CFM International, Inc. Model CFM56-3C-1 engines bearing, respectively,
manufacturer's serial numbers 857611 and 856625 (each of which engines has 750
or more rated takeoff horsepower or the equivalent of such horsepower); and
WHEREAS, Assignor desires to transfer to Assignee all its right, title and
interest in, to and under the Trust Estate (excluding Reserved Rights (as
defined below), the "Beneficial Interest"), except for certain rights or
indemnities described in that certain Purchase, Assignment and Assumption
Agreement (1993 737 C) dated as of December 1, 1997 (the "Purchase Agreement")
between Assignor and Assignee ("Reserved Rights") vesting or relating to events
prior to ___:___ _.m., Las Vegas time, on the date hereof (the "Effective
Time");
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements of the parties contained herein, and for other good
and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, Assignor and Assignee agree as follows:
SECTION 1. Transfer and Assumption.
Assignor does hereby sell, assign and transfer to Assignee the Beneficial
Interest, and Assignee hereby accepts the Beneficial Interest from Assignor.
Assignee agrees that, from and after the execution and delivery hereof, it shall
be bound by all the terms of, and shall have assumed and undertaken to perform
all the obligations
PAGE 1
(other than obligations relating to Reserved Rights) of the Owner Participant
with respect to the Beneficial Interest.
SECTION 2. EFFECT OF TRANSFER.
Upon the execution and delivery of this Agreement (which shall be deemed to
occur at the Effective Time), Assignee shall be deemed the Owner Participant for
all purposes of the Operative Documents and shall be deemed to have paid that
portion of Lessor's Cost for the Aircraft previously made by Assignor, and
represented by the interest being conveyed, and each reference in any Operative
Document, including without limitation, the Trust Agreement, to "Owner
Participant" shall thereafter be deemed to be Assignee, except with respect to
Reserved Rights. Assignee expressly assumes hereunder all and any liability and
obligation of Assignor accruing or arising under any of the Operative Documents,
including, without limitation, the Trust Agreement, on and after the execution
and delivery of this Agreement.
SECTION 3. NO THIRD PARTY BENEFIT.
Assignor and Assignee agree that the provisions of this Agreement are for
the sole benefit of Assignor, Assignee, Owner Trustee, Lessee, GE, Mortgagee and
their respective successors and assigns, and are not for the benefit, directly
or indirectly, of any other Person.
SECTION 4. NOTICES.
Any notices to the Owner Participant provided for in the Operative Documents
shall be delivered to Assignee at the following address or such other place as
Assignee may designate in accordance with the Operative Documents:
General Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇
Executive Vice President and
Chief Financial Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
SECTION 5. HEADINGS.
The headings of the Sections herein are for convenience of reference only
and shall not define or limit any of the terms or provisions hereof.
PAGE 2
SECTION 6. GOVERNING LAW.
THIS AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, WITHOUT GIVING EFFECT TO PRINCIPLES OF
CONFLICTS OF LAWS.
SECTION 7. DEFINITIONS.
Capitalized terms used herein without definition shall have the meanings
given them in the Trust Agreement.
SECTION 8. EXECUTION IN COUNTERPARTS.
This Agreement and any amendments, waivers or consents hereto may be
executed by Assignor and Assignee in separate counterparts (or upon separate
signature pages bound together into one or more counterparts), each of which,
when so executed and delivered, shall be an original, but all such counterparts
shall together constitute one and the same instrument.
SECTION 9. NOTICE PURPOSES ONLY.
This Agreement is being filed with the FAA for notice purposes only. The
parties hereto are subject to the terms and conditions of the Purchase
Agreement.
PAGE 3
IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment and
Assumption Agreement (1993 737 C) to be duly executed as of the day and year
first written above.
RGL-2 CORPORATION
as Assignor
By
--------------------------------
Name:
Title:
GENERAL BANK,
as Assignee
By
--------------------------------
Name:
Title:
The foregoing Assignment and Assumption
Agreement (1993 737 C) is hereby
acknowledged, agreed and consented to as of the
day and year first above written.
WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Owner Trustee,
Owner Trustee
By
---------------------------------
Name:
Title:
EXHIBIT B TO PURCHASE
ASSIGNMENT AND ASSUMPTION
AGREEMENT (1993 737 C)
GENERAL BANK
AFFIDAVIT OF CITIZENSHIP
------------------------
STATE OF CALIFORNIA )
) ss.:
COUNTY OF LOS ANGELES )
The undersigned being duly sworn, deposes and says on behalf of General
Bank, a California banking corporation (the "Owner Participant"), that:
1. He is duly elected and qualified officer of General Bank.
2. The Owner Participant is a banking corporation duly organized
under the laws of the State of California.
2. The Owner Participant is a "Citizen of the United States" as
defined in Section 40102(a)(15) of Title 49 of the United States Code.
By:
--------------------------------------------
Name:
Title:
SWORN TO AND SUBSCRIBED before
me this ___ day of December, 1997.
------------------------------
Notary Public
My Commission Expires:
------------------------------
-------------------------
EXHIBIT C TO PURCHASE,
ASSIGNMENT AND ASSUMPTION
AGREEMENT (1993 737 C)
-------------------------
GUARANTEE BY
CORPORATE AFFILIATE OF ASSIGNOR
(1993 737 C)
FOR VALUE RECEIVED, The Boeing Company, a Delaware corporation
("GUARANTOR"), pursuant to that certain Purchase, Assignment and Assumption
Agreement (1993 737 C) dated as of December 1, 1997 (the "ASSIGNMENT AND
ASSUMPTION AGREEMENT") between RGL-2 Corporation, a Delaware corporation
("ASSIGNOR"), and General Bank, a California banking corporation (the
"GUARANTEED PARTY"), does hereby unconditionally and irrevocably guarantee to
the Guaranteed Party, (i) the due and punctual performance and observance by
Assignor of each covenant, agreement, undertaking, representation, warranty and
any other obligation or condition binding upon or to be performed or observed by
it under and in accordance with the terms of the Assignment and Assumption
Agreement, (ii) the due and punctual payment of each which Assignor is or may
become obligated to pay under and in accordance with the terms of the
Assignment and Assumption Agreement, and (iii) in the event of any nonpayment or
nonperformance, agrees to pay or perform or cause such payment or performance to
be made upon notice from the Guaranteed Party of such nonpayment or
nonperformance (such payment and other obligations being herein referred to as
the ("OBLIGATIONS"). Guarantor further agrees to pay all reasonable expenses
(including, without limitation, all fees and disbursements of counsel) that may
be paid or incurred by the Guaranteed Party in enforcing 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. The
obligations of Guarantor to make any payments hereunder shall be subject to the
terms and conditions of the Assignment and Assumption Agreement applicable to
the obligations of Assignor.
Capitalized terms used herein which are defined in the Assignment and
Assumption Agreement are used in this Guarantee as they are so defined.
Guarantor hereby waives notice of acceptance of this Guarantee, and agrees
that, in its capacity as a guarantor, it shall not be required to consent to, or
to receive any notice of, any supplement to or amendment of, or waiver or
modification of the terms of, the Assignment and Assumption Agreement.
Assignor is an "Affiliate" (as that term is defined in the Participation
Agreement) of Guarantor, and this Guarantee is being furnished to induce the
Guaranteed Party to contract with Assignor as set forth in the Assignment and
Assumption Agreement.
Guarantor represents and warrants that (i) Guarantor is duly incorporated
and validly existing in good standing under the laws of the State of Delaware;
(ii) the execution, delivery and performance of this Guarantee are within
Guarantor's power and authority, do not contravene the charter or the by-laws of
Guarantor or any indenture, mortgage, credit agreement, note, long-term lease or
other material agreement to which Guarantor is a party or by which Guarantor is
bound or any law, governmental rule, regulation, judgment or order binding on
Guarantor; and (iii) this Guarantee has been duly authorized, executed and
delivered on behalf of Guarantor and constitutes a legal, valid, binding and
enforceable obligation of Guarantor.
No failure or delay or lack of demand, notice or diligence in exercising
any right under this Guarantee shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right under this Guarantee.
This Guarantee is an absolute, unconditional and continuing guarantee of
payment and not of collection and Guarantor waives any right to require that any
right to take action against Assignor be exhausted or that resort be made to
any security prior to action being taken against Guarantor.
In the event that this Guarantee, the Assignment and Assumption Agreement
or the Assignment and Assumption Agreement (FAA) shall be terminated, rejected
or disaffirmed as a result of bankruptcy, insolvency, reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
proceedings with respect to Assignor, Guarantor's obligations hereunder shall
continue to the same extent as if the same had not been so terminated, rejected
or disaffirmed. Guarantor shall and does hereby waive all rights and benefits
which might, in whole or in part, relieve Guarantor from the performance of its
duties and obligations by reason of any proceeding as specified in the
preceding sentence, and Guarantor agrees that it shall be liable for all sums
guaranteed, in respect of and without regard to, any modification, limitation or
discharge of the liability of Assignor that may result from any such proceedings
and notwithstanding any stay, injunction or other prohibitions issued in any
such proceedings. Furthermore, the obligation of Guarantor hereunder will not be
discharged by: (a) any extension or renewal with respect to any obligation of
Assignor under the Assignment and Assumption Agreement; (b) any modification of,
or amendment or supplement to, any such agreement; (c) any furnishing or
acceptance of additional security or any release of any security; (d) any
waiver, consent or other action or inaction or any exercise of non-exercise of
any right, remedy or power with respect to Assignor, or any change in the
structure of Assignor;
PAGE 2
(e) any change in ownership of the shares of capital stock of Guarantor or
Assignor or any other merger or consolidation of either thereof into or with any
other person; or (f) any other occurrence whatsoever, except payment in full of
all amounts payable by Assignor under the Assignment and Assumption Agreement
and performance in full of all Obligations of Assignor in accordance with the
terms and conditions of the Assignment and Assumption Agreement.
Guarantor understands and agrees that its obligations hereunder shall be
continuing, absolute and unconditional without regard to, and Guarantor hereby
waives any defense to, or right to seek a discharge of its obligations hereunder
with respect to (a) the validity, legality, regularity or enforceability of the
Assignment and Assumption Agreement, 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 the Guaranteed Party, (b) any defense, setoff
or counterclaim (other than a defense of payment or performance (including
payment or performance attributable to a right of set off provided for in the
Assignment and Assumption Agreement)) that may at any time be available to or be
asserted by Assignor against the Guaranteed Party, or (c) any other
circumstances whatsoever (with or without notice to or knowledge of Assignor or
Guarantor) that constitutes, or might be construed to constitute, an equitable
or legal discharge of Assignor or the Obligations, or of Guarantor under this
Guarantee, in bankruptcy or in any other instance.
Notwithstanding any payment or payments made by Guarantor hereunder or
any setoff or application of funds of Guarantor by the Guaranteed Party,
Guarantor shall not be entitled to be subrogated to any of the rights of the
Guaranteed Party against Assignor or any collateral, security or guarantee or
right of setoff held by the Guaranteed Party for the payment of the Obligations,
nor shall Guarantor seek or be entitled to seek any reimbursement from Assignor
in respect of payments made by Guarantor hereunder, until all amounts and
performance owing to the Guaranteed Party by Assignor on account of the
Obligations are paid and performed in full.
The obligations of Guarantor hereunder shall be automatically reinstated
if and to the extent that any payment by or on behalf of Owner Participant in
respect of any of the Obligations is rescinded or must be otherwise restored by
the Guaranteed Party as a result of any proceedings in bankruptcy or
reorganization or similar proceedings and Guarantor agrees that it will
reimburse the Guaranteed Party on demand for all reasonable costs and expenses
(including, without limitation, fees or counsel) incurred by the Guaranteed
Party in connection with such rescission or restoration. 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
Page 3
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
This Guarantee shall be binding upon the successors and assigns of
Guarantor, provided, however, that no transfer, assignment or delegation by
Guarantor without the consent of the Guaranteed Party shall release Guarantor
from its liabilities hereunder. This Guaranty shall terminate and be of no
further force and effect upon the performance and observance in full of the
Obligations.
All notices, requests and demands to or upon Guarantor or any beneficiary
shall be made in accordance with the terms of Section 13(a) of the Assignment
and Assumption Agreement and if delivered to Guarantor shall be addressed to
▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: Treasurer, M/S 68-34, Telecopy:
(▇▇▇) ▇▇▇-▇▇▇▇, or to such other address as Guarantor shall designate to
Guaranteed Party in writing.
THIS GUARANTEE SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN
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ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
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CONSTRUCTION,VALIDITY AND PERFORMANCE WITHOUT GIVING EFFECT TO PRINCIPLES OF
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CONFLICTS OF LAW.
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PAGE 4
Dated: December __, 1997
THE BOEING COMPANY
By:
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Name:
Title: