EXHIBIT 4.9
Participation Agreement
N___U_
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PARTICIPATION AGREEMENT
(US Airways, Inc. Trust No. N___U_)
Dated as of
[-]
Among
US AIRWAYS, INC.,
Lessee,
[-],
Owner Participant,
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
not in its individual capacity except
as expressly provided herein, but solely as
Pass Through Trustee under each of the
Pass Through Trust Agreements,
Subordination Agent and Indenture Trustee
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity
except as expressly provided herein,
but solely as Owner Trustee,
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Participation Agreement
N___U_
One Airbus A[319][320][321] Aircraft
U.S. Registration No. N___U_
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Participation Agreement
N___U_
INDEX TO PARTICIPATION AGREEMENT
Page
SECTION 1. DEFINITIONS AND CONSTRUCTION................................3
SECTION 2. PARTICIPATIONS IN LESSOR'S COST OF THE AIRCRAFT.............3
(a) Participation by Pass Through Trustees on the
Delivery Date; Issuance of Equipment Notes.............3
(b) Payment of Owner Participant's Commitment..............3
(c) Lessee's Notice of Delivery Date.......................4
(d) Default by Pass Through Trustee or Owner
Participant............................................4
(e) Closing................................................4
(f) Postponement of Scheduled Closing Date.................4
SECTION 3. INSTRUCTIONS TO THE OWNER TRUSTEE...........................6
SECTION 4. CONDITIONS PRECEDENT........................................6
(a) Conditions Precedent to the Participations
in the Aircraft........................................6
(b) Conditions Precedent to the Obligations of Lessee.....17
SECTION 5. EXTENT OF INTEREST OF NOTE HOLDERS.........................18
SECTION 6. REPRESENTATIONS AND WARRANTIES OF LESSEE; INDEMNITIES......19
(a) Representations and Warranties........................19
(b) General Tax Indemnity.................................23
(i) Indemnity......................................23
(ii) Exclusions from General Tax Indemnity..........24
(iii) Payments.......................................26
(iv) Contests. ....................................28
(v) Refund.........................................30
(vi) Tax Filing. ..................................31
(vii) Forms. .......................................32
(viii) Non-Parties....................................32
(ix) Subrogation....................................32
(c) General Indemnity.....................................32
SECTION 7. REPRESENTATIONS, WARRANTIES AND COVENANTS..................37
(a) Covenants Regarding Citizenship.......................37
(b) Location of Records...................................38
(c) Securities Act........................................39
(d) Reregistration........................................39
(e) Owner Participant Representations and Warranties......41
(f) Lessor Liens..........................................43
(g) Quiet Enjoyment.......................................43
(h) Equipment Notes Acquired for Investment...............43
(i) [Reserved] ...........................................44
(j) Representations, Warranties and Covenants
of Indenture Trustee..................................44
(k) Owner Participant Transfers...........................45
(l) Reserved..............................................47
(m) Compliance with Trust Indenture.......................47
(n) ERISA Matters.........................................47
(o) Confidentiality of Purchase Agreement.................49
(p) Margin Regulations....................................49
(q) Loan Participant Liens................................49
(r) Indenture Trustee Liens...............................50
(s) Representations and Warranties of Owner Trustee.......50
(t) Owner Participant Obligations on Lease Termination....54
(u) Transfer of Title; Assumption of Equipment Notes......54
(v) Lessee Merger Covenant...............................55
(w) Further Assurances....................................56
(x) Rent Adjustments......................................57
(y) Owner Participant Costs on Return.....................57
(z) Transfer of Equipment Notes...........................57
(aa) Representations and Warranties of Pass Through
Trustee...............................................57
(bb) Representations and Warranties of Subordination
Agent.................................................60
SECTION 8. RELIANCE OF LIQUIDITY PROVIDER AND POLICY PROVIDER.........63
SECTION 9. OTHER DOCUMENTS............................................63
SECTION 10. CERTAIN COVENANTS OF LESSEE................................64
(a) Further Assurances....................................64
(b) Filings...............................................64
SECTION 11. OWNER FOR FEDERAL TAX PURPOSES.............................65
SECTION 12. NOTICES; CONSENT TO JURISDICTION...........................65
(a) Notices...............................................65
(b) Consent to Jurisdiction...............................65
SECTION 13. CHANGE OF SITUS OF OWNER TRUST.............................66
SECTION 14. MISCELLANEOUS..............................................67
(a) Consents Under Lease..................................67
(b) Survival..............................................67
(c) Counterparts..........................................68
(d) Amendments and Waivers................................68
(e) Successors and Assigns................................68
(f) Governing Law.........................................68
(g) Trust Capacity........................................68
(h) Section 1110..........................................69
SECTION 15. EXPENSES...................................................69
(a) Invoices And Payment..................................69
(b) Payment of Other Expenses.............................69
SECTION 16. REFINANCINGS...............................................70
(a) Refinancing Generally................................70
(b) Limitation on Redemption..............................73
ANNEXES
ANNEX A - Definitions
SCHEDULES
SCHEDULE I - Names and Addresses
SCHEDULE II - Commitments
SCHEDULE III - Pass Through Trust Agreement and Pass Through Trust
Supplements
SCHEDULE IV - [Deferred Equity Payments](1)
EXHIBITS
Exhibit A - Form of Opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇
(Illinois), special counsel for Lessee
Exhibit B - Form of Opinion of Lessee's Legal Department
Exhibit C - Form of Opinion of ▇▇▇▇▇▇▇▇ Chance Regarding Manufacturer
Documents
Exhibit D - Form of Opinion of Ray, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special counsel
for the Owner Trustee
Exhibit E-1 - Form of Opinion of [-], special counsel for the Owner
Participant
Exhibit E-2 - Form of Opinion of Owner Participant's in-house counsel
Exhibit F - Form of Opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C., special FAA
Counsel
Exhibit G - Form of Opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ LLP, special counsel for the
Indenture Trustee
Exhibit H - Form of Opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ LLP, special counsel for the
Pass Through Trustee
Exhibit I - Form of Opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ LLP, special counsel for the
Subordination Agent
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1 For Deferred Equity Transactions Only.
Participation Agreement
N___U_
PARTICIPATION AGREEMENT
(US Airways, Inc. Trust No. N___U_)
THIS PARTICIPATION AGREEMENT (US Airways, Inc. Trust No.
N___U_) dated as of [-] (as amended, supplemented or otherwise modified
from time to time, this "Agreement") among (i) US AIRWAYS, INC., a Delaware
corporation (together with its successors and permitted assigns, the
"Lessee", (ii) [-], a [-] (together with its successors and permitted
assigns, the "Owner Participant"), (iii) STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a national banking
association, not in its individual capacity except as otherwise provided
herein, but solely as pass through trustee under each of two separate Pass
Through Trust Agreements (in such capacity, together with its successors
and permitted assigns, the "Pass Through Trustee"), subordination agent and
trustee under the Intercreditor Agreement (in such capacity, together with
its successors and permitted assigns, the "Subordination Agent"), and
Indenture Trustee under the Trust Indenture (in such capacity, together
with any successor indenture trustee, the "Indenture Trustee"), and (iv)
FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national banking association,
not in its individual capacity except as expressly provided herein, but
solely as Owner Trustee under the Trust Agreement (herein, in such latter
capacity, together with any successor owner trustee, called the "Owner
Trustee");
W I T N E S S E T H:
WHEREAS, concurrently with the execution and delivery of
this Agreement, the Owner Participant is entering into the Trust Agreement
with the Owner Trustee, pursuant to which Trust Agreement the Owner Trustee
agrees, among other things, to hold the Trust Estate for the use and
benefit of the Owner Participant;
WHEREAS, concurrently with the execution and delivery of
this Agreement, the Indenture Trustee and the Owner Trustee are entering
into the Trust Indenture pursuant to which the Owner Trustee will issue to
the Loan Participants Equipment Notes in two series, which Equipment Notes
are to be secured by the mortgage and security interests created by the
Owner Trustee in favor of the Indenture Trustee;
WHEREAS, concurrently with the execution and delivery of
this Agreement, the Owner Trustee will execute and deliver a Trust and
Indenture Supplement covering the Aircraft, supplementing the Trust
Agreement and the Trust Indenture;
WHEREAS, concurrently with the execution and delivery of
this Agreement, the Owner Trustee and Lessee have entered into the Lease
whereby, subject to the terms and conditions set forth therein, the Owner
Trustee agrees to lease to Lessee, and Lessee agrees to lease from the
Owner Trustee, the Aircraft on the Delivery Date;
WHEREAS, on the Delivery Date for the Aircraft, the Lessee
will deliver a Lease Supplement covering the Aircraft;
WHEREAS, pursuant to the terms of the Note Purchase
Agreement, the Pass Through Trustee will purchase from the Owner Trustee on
the Delivery Date, on behalf of each Pass Through Trust, all of the
Equipment Notes bearing the same interest rate as the Pass Through
Certificates issued by such Pass Through Trust;
WHEREAS, prior to the execution and delivery of this
Agreement, (i) the Liquidity Provider entered into two separate Liquidity
Facilities, one for the benefit of the holders of Pass Through Certificates
of each of the Class G Pass Through Trust and the Class C Pass Through
Trust (each referenced on Schedule III hereto), with the Subordination
Agent, as agent for the Pass Through Trustee on behalf of each such Pass
Through Trust; (ii) the Policy Provider entered into a Policy Provider
Agreement with the Subordination Agent, as agent for the Pass Through
Trustee on behalf of the Class G Trust and has issued the Policy for the
benefit of the holders of Pass Through Certificates of the Class G Pass
Through Trust; and (iii) the Pass Through Trustee, the Liquidity Provider,
the Policy Provider and the Subordination Agent have entered into the
Intercreditor Agreement;
WHEREAS, the Equipment Notes will be held by the
Subordination Agent pursuant to the Intercreditor Agreement on behalf of
the Pass Through Trusts;
WHEREAS, the acquisition of the Aircraft by Lessee from the
Seller and the aforementioned sale and leaseback transaction are integrally
related and constitute a series of events designed to provide financing for
such Aircraft and a means of providing the Aircraft to the Lessee for use
in its business.
NOW, THEREFORE, in consideration of the mutual agreements
herein contained, the parties hereto agree as follows:
SECTION 1. DEFINITIONS AND CONSTRUCTION.
Capitalized terms used but not defined herein shall have the
respective meanings set forth or incorporated by reference, and shall be
construed and interpreted in the manner described, in Annex A.
SECTION 2. PARTICIPATIONS IN LESSOR'S COST OF THE AIRCRAFT.
(a) Participation by Pass Through Trustees on the Delivery
Date; Issuance of Equipment Notes. Subject to the terms and conditions of
this Agreement, the Pass Through Trustee for each Pass Through Trust agrees
to make a non-recourse (except as provided herein) secured loan to the
Owner Trustee on the Delivery Date to finance, in part, the Owner Trustee's
payment of Lessor's Cost for the Aircraft by paying to the Owner Trustee
the aggregate purchase price of the Equipment Notes being issued to such
Pass Through Trustee as set forth on Schedule II opposite the name of such
Pass Through Trust. The Pass Through Trustees shall make such payments to
the Owner Trustee on a date to be designated pursuant to Section 2(c) but
in no event later than [-], by transferring to the account of the Owner
Trustee at State Street Bank and Trust Company of Connecticut, National
Association, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ABA No. [-],
Account No. [-], Reference: US Airways, Inc. ▇▇▇▇-▇ ▇▇▇▇/▇▇ ▇▇▇▇▇▇▇, Inc.
Trust No. N___U_), not later than 9:30 a.m., New York City time, on the
Delivery Date in immediately available funds in Dollars, the amount set
forth opposite the name of such Pass Through Trust on Schedule II hereto.
Upon the occurrence of the above transfers by the Pass
Through Trustee for each Pass Through Trust to the Owner Trustee, the Owner
Trustee, at the direction of the Owner Participant, shall issue, pursuant
to Article II of the Trust 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 opposite the name
of such Pass Through Trust.
(b) Payment of Owner Participant's Commitment. Subject to
the terms and conditions of this Agreement, the Owner Participant agrees
with the Lessee and only with the Lessee on behalf of the Owner Trustee,
subject to the terms and conditions of this Agreement, to make the amount
of its Commitment as set forth on Schedule II available for and on account
of the Owner Trustee on the Delivery Date specified in the Delivery Notice
pursuant to Section 2(c) by wire transfer of such amount in immediately
available funds, to the Owner Trustee for deposit in its account at State
Street Bank and Trust Company of Connecticut, National Association, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ABA No. [-], Account No. [-],
Reference: US Airways, Inc. ▇▇▇▇-▇ ▇▇▇▇/▇▇ ▇▇▇▇▇▇▇, Inc. Trust No. N___U_,
not later than 9:30 a.m., New York City time. The amount of the Owner
Participant's Commitment shall be held for the account of the Owner
Participant by the Owner Trustee until released by the Owner Participant or
its special counsel at closing or until returned to the Owner Participant
in accordance with Section 2(f).
(c) Lessee's Notice of Delivery Date. The Lessee agrees to
give the Owner Participant, the Indenture Trustee, the Owner Trustee, the
Pass Through Trustee and the Subordination Agent at least three (3)
Business Days' written or facsimile notice prior to the Delivery Date,
which notice shall specify the Lessor's Cost for the Aircraft, the
estimated amount of the Owner Participant's Commitment, the Delivery Date
for the Aircraft, the serial number of the Airframe and each Engine, and
the United States registration number for the Aircraft.
(d) Default by Pass Through Trustee or Owner Participant. In
case any of the Pass Through Trustee or the Owner Participant shall default
in its obligation under the provisions of this Section 2, no other such
party shall have any obligation to make any portion of such defaulted
amount available or to increase the amount of its Commitment and the
obligation of such nondefaulting party shall remain subject to the terms
and conditions set forth in this Agreement.
(e) Closing. The closing of the transactions referred to in
this Agreement shall take place commencing at 9:30 a.m. local time, on the
Delivery Date, at the offices of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
in New York, New York.
(f) Postponement of Scheduled Closing Date.
(i) If for any reason whatsoever the closing of the
transactions contemplated hereby is not consummated on the Delivery
Date provided for pursuant to Section 2(c) (the "Scheduled Delivery
Date"), the closing shall be deemed adjourned to the next Business
Day or to such other Business Day on or prior to [-] as Lessee
shall specify by written notice to the Pass Through Trustee, the
Owner Participant, the Owner Trustee and the Indenture Trustee, in
which case the Owner Participant will keep its funds available.
(ii) If the closing fails to occur on the Scheduled Delivery
Date, the Owner Trustee shall promptly return to each Participant
that makes funds available to it in accordance with this Section 2
such funds, together with interest or income earned thereon.
(iii) If the closing fails to occur on the Scheduled
Delivery Date and funds are not returned to each Participant that
made funds available as provided by clause (ii) above, the Owner
Trustee shall, if so instructed by Lessee, use reasonable efforts
to invest, at the risk of Lessee, the funds received by it from
Participants in Cash Equivalents. Any such obligations purchased by
the Owner Trustee, whether directly or through a repurchase
agreement, shall be held in trust by the Owner Trustee for the
benefit of the respective Participants that provided such funds,
and not as part of the Trust Estate or the Trust Indenture Estate.
(iv) If the closing fails to occur on the Scheduled Delivery
Date, unless the Owner Trustee returns all funds to the
Participants by 2:00 p.m., New York City time, on the Scheduled
Delivery Date, Lessee shall reimburse each Participant that has
made funds available pursuant to this Section 2 for the loss of the
use of its funds an amount equal to the excess, if any, of (x)
interest at the Debt Rate on the amount of such funds for the
period from and including the Scheduled Delivery Date to but
excluding the actual Delivery Date or, if earlier, the day on which
such Participant's funds are returned if such return is made by
2:00 p.m., New York City time (or to but excluding the next
following Business Day if such return is not made by such time)
over (y) any amount paid to such Participant in respect of interest
or income earned by the Owner Trustee pursuant to clause (iii)
above.
(v) On the Delivery Date or on the date funds are required
to be returned to Participants pursuant to clause (ii) above,
Lessee shall reimburse the Owner Trustee, for the benefit of
Participants that provided funds which are invested by the Owner
Trustee pursuant to this subsection (f), for any losses incurred on
such investments. All income and profits on the investment of such
funds shall be for the respective accounts of such Participants,
and the Owner Trustee shall not be liable for failure to invest
such funds or for any losses incurred on such investments, except
for its own negligence or willful misconduct.
SECTION 3. INSTRUCTIONS TO THE OWNER TRUSTEE.
The Owner Participant agrees that its releasing the amount
of its Commitment for the Aircraft to the account of the Owner Trustee in
accordance with the terms of Section 2 and its instructions to the Owner
Trustee to release such funds shall constitute, without further act,
authorization and direction by the Owner Participant to the Owner Trustee:
(i) to purchase the Aircraft from Lessee and to pay to
Lessee the Lessor's Cost for the Aircraft;
(ii) to the extent not previously accomplished by a prior
authorization, to authorize a representative or representatives of
the Owner Trustee (who shall be an employee or employees, or an
agent or agents, of Lessee designated by Lessee) to accept delivery
of the Aircraft on the Delivery Date pursuant to the Acceptance
Certificate;
(iii) to accept from Lessee the ▇▇▇▇ of Sale and the FAA
▇▇▇▇ of Sale for the Aircraft referred to in Section 4(a)(v)(8) and
4(a)(v)(9);
(iv) to execute an Aircraft Registration Application, the
Lease Supplement and the Trust Supplement, in each case covering
the Aircraft;
(v) to borrow from the Pass Through Trustee and issue the
Equipment Notes as provided in Section 2(a); and
(vi) to take such other action as may be required to be
taken by the Owner Trustee on the Delivery Date by the terms of any
Operative Document.
SECTION 4. CONDITIONS PRECEDENT.
(a) Conditions Precedent to the Participations in the
Aircraft. It is agreed that the obligations of the Owner Trustee, the Owner
Participant, the Indenture Trustee, the Subordination Agent and the Pass
Through Trustee on behalf of each Pass Through Trust to participate in the
transactions contemplated hereby on the Delivery Date are subject to the
fulfillment to the satisfaction of each party (or waiver by such party),
prior to or on the Delivery Date of the following conditions precedent,
except that paragraphs (iii) and (v)(5), (xxi), (xxii) and (xxiii) shall
not be a condition precedent to the obligations of the Pass Through
Trustee, and paragraphs (iv), (vii) (insofar as it relates certificates and
documents to be delivered by the Owner Participant) and (xiv) shall not be
a condition precedent to the obligation of the Owner Participant and
paragraph (xxv) shall not be a condition precedent to the obligations of
the Subordination Agent:
(i) At least three (3) Business Days prior to the Delivery
Date, each of the parties hereto shall have received the Delivery
Notice pursuant to Section 2(c).
(ii) On the Delivery Date, no change shall have occurred
after the date of the execution and delivery of this Agreement in
applicable law or regulations or guidelines or interpretations
thereof by appropriate regulatory authorities which would make it a
violation of law or regulations or guidelines for the Pass Through
Trustee or the Owner Participant to make its Commitment available
in accordance with Section 2.
(iii) In the case of the Owner Participant, the Pass Through
Trustees shall have made available the amount of their Commitments
for the Aircraft in accordance with Section 2.
(iv) In the case of the Pass Through Trustees, the Owner
Participant shall have made available the amount of its Commitment
for the Aircraft in accordance with Section 2.
(v) The following documents shall have been duly authorized,
executed and delivered by the respective party or parties thereto,
shall each be satisfactory in form and substance to the Owner
Trustee, the Owner Participant, the Indenture Trustee, the Pass
Through Trustee and the Subordination Agent and shall be in full
force and effect and executed counterparts shall have been
delivered to the Owner Trustee, the Owner Participant, the
Indenture Trustee, the Pass Through Trustee and the Subordination
Agent, or their respective counsel, provided that only the
Subordination Agent on behalf of each Pass Through Trustee shall
receive an executed original of such Pass Through Trustee's
respective Equipment Note and provided, further, that an excerpted
copy of the Purchase Agreement shall only be delivered to and
retained by the Owner Trustee (but the Indenture Trustee shall also
retain an excerpted copy of the Purchase Agreement which may be
inspected by the Owner Participant and its counsel prior to the
Delivery Date and subsequent to the Delivery Date may be inspected
and reviewed by the Indenture Trustee if and only if there shall
occur and be continuing an Indenture Event of Default), the chattel
paper counterpart of the Lease and the Lease Supplement covering
the Aircraft dated the Delivery Date shall be delivered to the
Indenture Trustee, the Tax Indemnity Agreement need only be
satisfactory to the Owner Participant and Lessee and shall only be
delivered to Lessee and the Owner Participant and their respective
counsel:
(1) an excerpted copy of the Purchase Agreement
(insofar as it relates to the Aircraft);
(2) the Purchase Agreement Assignment;
(3) the Lease;
(4) a Lease Supplement covering the Aircraft dated
the Delivery Date;
(5) the Tax Indemnity Agreement;
(6) the Trust Agreement;
(7) a Trust Indenture and Trust Supplement covering
the Aircraft dated the Delivery Date;
(8) the ▇▇▇▇ of Sale;
(9) the FAA ▇▇▇▇ of Sale;
(10) an acceptance certificate covering the Aircraft
in the form agreed to by the Owner Participant and Lessee
(herein called the "Acceptance Certificate") duly completed
and executed by the Owner Trustee or its agent, which may be
a representative of Lessee, and by such representative on
behalf of Lessee;
(11) the Trust Indenture;
(12) the Equipment Notes;
(13) the Consent and Agreement; and
(14) the French Law Pledge Agreement.
In addition, the Pass Through Trustee and the Owner
Participant each shall have received executed counterparts or
conformed copies of the following documents:
(1) each of the Pass Through Trust Agreements;
(2) the Intercreditor Agreement;
(3) the Liquidity Facility for each of the Class G
and Class C Pass Through Trusts; and
(4) the Policy Provider Agreement and the Policy for
the Class G Pass Through Trust.
(vi) A Uniform Commercial Code financing statement or
statements covering all the security interests created by or
pursuant to the Granting Clause of the Trust Indenture that are not
covered by the recording system established by the Transportation
Code shall have been executed and delivered by the Owner Trustee,
and arrangements satisfactory to the Owner Participant and the
Indenture Trustee shall have been made for the filing of such
financing statement or statements in all places necessary or
advisable, and any additional Uniform Commercial Code financing
statements deemed advisable by the Owner Participant or the Pass
Through Trustee shall have been executed and delivered by Lessee or
the Owner Trustee and arrangements satisfactory to the Owner
Participant and the Indenture Trustee shall have been made for the
filing of such financing statements.
(vii) The Owner Trustee, the Owner Participant, the
Indenture Trustee, Pass Through Trustee and the Subordination Agent
shall have received the following, in each case in form and
substance satisfactory to it (except it shall not be a condition to
the obligation of any such party that it receive a certificate or
other document required to be delivered by it):
(A) (1) an incumbency certificate of Lessee as to the person
or persons authorized to execute and deliver the Operative
Documents to which the Lessee is a party and any other
documents to be executed on behalf of Lessee in connection
with the transactions contemplated hereby and the signatures
of such person or persons;
(2) a copy of the resolutions of the board of
directors of Lessee or Lessee's executive committee,
certified by the Secretary or an Assistant Secretary of
Lessee, duly authorizing the transactions contemplated
hereby and the execution and delivery of each of the
documents required to be executed and delivered on behalf of
Lessee in connection with the transactions contemplated
hereby; and
(3) a copy of the certificate of incorporation of
Lessee, certified by the Secretary of State of the State of
Delaware, a copy of the by-laws of Lessee certified by the
Secretary or Assistant Secretary of Lessee, and a
certificate or other evidence from the Secretary of State of
the State of Delaware, dated as of a date shortly prior to
the closing, as to the due incorporation and good standing
of Lessee in such state.
(B) (1) an incumbency certificate of the Indenture Trustee
as to the person or persons authorized to execute and
deliver the Operative Documents to which the Indenture
Trustee is a party and any other documents to be executed on
behalf of the Indenture Trustee in connection with the
transactions contemplated hereby and 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 or an Assistant Secretary of the Indenture
Trustee, duly authorizing the transactions contemplated
hereby and the execution and delivery 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 of the
Indenture Trustee certified by the Comptroller of the
Currency, a copy of the by-laws of the Indenture Trustee
certified by the Secretary or an Assistant Secretary of the
Indenture Trustee, and a certificate or other evidence from
the Comptroller of the Currency, dated as of a date shortly
prior to closing, as to the existence of the Indenture
Trustee under the laws of the United States of America; and
(4) a certificate signed by an authorized officer of
the Indenture Trustee, dated the Delivery Date, certifying
that the representations and warranties contained herein of
the Indenture Trustee are correct in all material respects
as though made on and as of the Delivery 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).
(C) (1) an incumbency certificate of the Owner Trustee as to
the person or persons authorized to execute and deliver the
Operative Documents to which the Owner Trustee is a party
and any other documents to be executed on behalf of the
Owner Trustee in connection with the transactions
contemplated hereby and 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 and delivery 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 of the
Owner Trustee certified by the Comptroller of the Currency,
a copy of the by-laws of the Owner Trustee certified by the
Secretary or an Assistant Secretary of the Owner Trustee and
a certificate or other evidence from the Comptroller of the
Currency, dated as of a date shortly prior to closing, as to
the good standing of the Owner Trustee; and
(4) a certificate signed by an authorized officer of
the Owner Trustee, dated the Delivery Date, certifying that
the representations and warranties contained herein of the
Owner Trustee (in its individual capacity and as trustee)
are correct in all material respects as though made on and
as of the Delivery 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).
(D) (1) an incumbency certificate of the Owner Participant
as to the person or persons authorized to execute and
deliver the Operative Documents to which the Owner
Participant is a party and any other documents to be
executed on behalf of the Owner Participant in connection
with the transactions contemplated hereby and the signatures
of such person or persons;
(2) a copy of the resolutions of the board of
directors of the Owner Participant, certified by the
Secretary or an Assistant Secretary of the Owner
Participant, duly authorizing the transactions contemplated
hereby and the execution and delivery of each of the
documents required to be executed and delivered on behalf of
the Owner Participant in connection with the transactions
contemplated hereby have been duly authorized;
(3) a copy of the certificate of incorporation of the
Owner Participant certified by the Secretary of State of the
State of [-], a copy of the by-laws of the Owner
Participant, each certified by the Secretary or an Assistant
Secretary of the Owner Participant, and a certificate or
other evidence from the Secretary of State of the State of
[-], dated as of a date shortly prior to closing, as to the
due incorporation and good standing of the Owner Participant
in such state; and
(4) a certificate signed by an authorized officer of
the Owner Participant, dated the Delivery Date, certifying
that the representations and warranties contained herein of
the Owner Participant are correct in all material respects
as though made on and as of the Delivery 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).
(viii) All appropriate action required to have been taken
prior to the Delivery Date in connection with the transactions
contemplated by this Agreement shall have been taken by the Federal
Aviation Administration, or any governmental or political agency,
subdivision or instrumentality of the United States, and all
orders, permits, waivers, authorizations, exemptions and approvals
of such entities required to be in effect on the Delivery Date in
connection with the transactions contemplated by this Agreement
shall have been issued, and all such orders, permits, waivers,
authorizations, exemptions and approvals shall be in full force and
effect on the Delivery Date.
(ix) The Owner Trustee, the Owner Participant, the Indenture
Trustee, the Pass Through Trustee and the Subordination Agent shall
have received a certificate signed by an authorized officer of
Lessee to the effect that:
(1) the Aircraft has been duly certified by the
Federal Aviation Administration as to type and has a current
certificate of airworthiness;
(2) the FAA ▇▇▇▇ of Sale, the Lease, the Lease
Supplement, the Trust Indenture and the Trust Supplement
covering the Aircraft shall have been duly filed for
recordation (or shall be in the process of being so duly
filed for recordation) with the Federal Aviation
Administration, and the Trust Agreement shall have been
filed (or shall be in the process of being so filed) with
the Federal Aviation Administration;
(3) application for registration of the Aircraft in
the name of the Owner Trustee (together with any required
affidavits) has been duly made with the Federal Aviation
Administration;
(4) the representations and warranties contained
herein of Lessee are correct in all material respects as
though made on and as of the Delivery 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); and
(5) the conditions to the purchase of the Equipment
Notes by the Pass Through Trustees under the Pass Through
Documents have been duly satisfied or waived in accordance
with their respective terms.
(x) In the case of the Pass Through Trustees, the conditions
specified in Section 3 of the Note Purchase Agreement shall have
been satisfied or waived.
(xi) The Owner Trustee, the Owner Participant, the Indenture
Trustee, the Pass Through Trustee and the Subordination Agent shall
have received, addressed to each such party, an opinion dated the
Delivery Date substantially in the form of Exhibit A hereto from
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ (Illinois), special counsel
for Lessee, and an opinion dated the Delivery Date substantially in
the form of Exhibit B hereto from Lessee's legal department.
(xii) The Pass Through Trustee and the Owner Participant
shall have received, addressed to the Pass Through Trustee, the
Indenture Trustee, the Owner Participant, the Owner Trustee and
Lessee, an opinion dated the Delivery Date substantially in the
form of Exhibit C hereto from ▇▇▇▇▇▇▇▇ Chance, with respect to the
Manufacturer Documents.
(xiii) The Owner Participant, the Indenture Trustee, the
Pass Through Trustee and the Subordination Agent shall have
received, addressed to each such party, an opinion dated the
Delivery Date substantially in the form of Exhibit D hereto from
Ray, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special counsel for the Owner Trustee.
(xiv) The Owner Trustee, the Indenture Trustee, the Pass
Through Trustee and the Subordination Agent shall have received,
addressed to each such party, an opinion dated the Delivery Date
substantially in the form of Exhibit E-1 hereto from [-], special
counsel for the Owner Participant, and an opinion dated the
Delivery Date substantially in the form of Exhibit E-2 hereto from
the Owner Participant's in-house counsel.
(xv) The Owner Trustee, the Owner Participant, the Indenture
Trustee, the Pass Through Trustee and the Subordination Agent shall
have received, addressed to each such party, an opinion dated the
Delivery Date substantially in the form of Exhibit F hereto from
▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C., special FAA counsel.
(xvi) The Owner Trustee, the Owner Participant, the Pass
Through Trustee and the Subordination Agent shall have received,
addressed to each such party, an opinion dated the Delivery Date
substantially in the form of Exhibit G from ▇▇▇▇▇▇▇ ▇▇▇▇ LLP,
special counsel for the Indenture Trustee.
(xvii) [Reserved.]
(xviii)The Owner Trustee, the Owner Participant, the
Indenture Trustee, the Pass Through Trustee and the Subordination
Agent shall have received an insurance certificate together with an
independent insurance broker's report, in form and substance
satisfactory to the Owner Participant, as to the due compliance
with the terms of Section 11 of the Lease relating to insurance
with respect to the Aircraft.
(xix) The Owner Participant shall have received an appraisal
dated the Delivery Date from [-] in form and substance satisfactory
to it.
(xx) No action or proceeding shall have been instituted nor
shall governmental action be threatened before any court or
governmental agency, nor shall any order, judgment or decree have
been issued or proposed to be issued by any court or governmental
agency at the time of the Delivery Date to set aside, restrain,
enjoin or prevent the completion and consummation of this Agreement
or the transactions contemplated hereby.
(xxi) The Owner Participant shall have received from [-],
special tax counsel to the Owner Participant, a favorable opinion,
in form and substance satisfactory to the Owner Participant, with
respect to certain Federal income tax aspects of the transaction
contemplated by the Operative Documents.
(xxii) There shall have been, since the date hereof, no
amendment, modification, addition, or change in or to the
provisions of the Code, the regulations promulgated under the Code
(including temporary regulations), Internal Revenue Service Revenue
Procedures or Revenue Rulings, or other administrative
interpretations, applicable judicial precedents or Executive Orders
of the President of the United States, all as in effect on the date
hereof, the effect of which might preclude the Owner Participant
from obtaining any of the anticipated income tax benefits with
respect to the Aircraft.
(xxiii)The Owner Trustee, the Owner Participant, the
Indenture Trustee and the Subordination Agent, shall have received
(A) a certificate signed by an authorized officer of the Pass
Through Trustee, dated the Delivery Date, certifying that the
representations and warranties contained herein of the Pass Through
Trustee are correct as though made on and as of the Delivery 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), (B) an opinion dated the Delivery Date substantially
in the form of Exhibit H hereto addressed to each such party of
▇▇▇▇▇▇▇ ▇▇▇▇ LLP, special counsel for the Pass Through Trustee, and
(C) 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 corporate action in
connection therewith and compliance with the conditions herein set
forth.
(xxiv) No Lease Event of Default has occurred and is
continuing and no Event of Loss has occurred with respect to the
Airframe or any Engine.
(xxv) The Owner Trustee, the Owner Participant, the
Indenture Trustee and the Pass Through Trustee shall have received,
addressed to each such party, an opinion dated the Delivery Date
substantially in the form of Exhibit I from ▇▇▇▇▇▇▇ ▇▇▇▇ LLP,
special counsel for the Subordination Agent.
Promptly upon the registration of the Aircraft and the recording of
the Trust Indenture, the Lease, the Lease Supplement covering the Aircraft
and the Trust Supplement covering the Aircraft pursuant to the
Transportation Code, Lessee will cause ▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C., special FAA
counsel in Oklahoma City, Oklahoma, to deliver to the Pass Through Trustee,
the Indenture Trustee, the Owner Participant, the Owner Trustee and Lessee
an opinion as to the due and valid registration of the Aircraft in the name
of the Owner Trustee, the due recording of the FAA ▇▇▇▇ of Sale, the Trust
Indenture, such Lease Supplement, such Trust Supplement and the Lease and
the filing of the Trust Agreement and the lack of filing of any intervening
documents with respect to the Aircraft.
(b) Conditions Precedent to the Obligations of Lessee. It is
agreed that (A) the obligations of Lessee to sell the Aircraft to the Owner
Trustee and to accept delivery of the Aircraft under the Lease on the
Delivery Date, and (B) the obligations of Lessee to enter into the other
Operative Documents on the Delivery Date are all subject to the fulfillment
to the satisfaction of Lessee prior to the Delivery Date of the following
conditions precedent:
(i) All appropriate action required to have been taken on or
prior to the Delivery Date in connection with the transactions
contemplated by this Agreement shall have been taken by the Federal
Aviation Administration, or any governmental or political agency,
subdivision or instrumentality of the United States, and all
orders, permits, waivers, exemptions, authorizations and approvals
of such entities required to be in effect on the Delivery Date in
connection with the transactions contemplated by this Agreement
shall have been issued, and all such orders, permits, waivers,
exemptions, authorizations and approvals shall be in full force and
effect on the Delivery Date.
(ii) The conditions specified in Sections 4(a)(ii),
4(a)(iii) and 4(a)(iv) hereof shall have been satisfied.
(iii) Those documents described in Section 4(a)(v) shall
have been duly authorized, executed and delivered by the respective
party or parties thereto (other than Lessee) in the manner
specified in Section 4(a)(v), shall each be satisfactory in form
and substance to Lessee, shall be in full force and effect on
the Delivery Date, and an executed counterpart of each thereof
(other than the Equipment Notes) shall have been delivered to
Lessee or its special counsel.
(iv) Lessee shall have received (A) each certificate
referred to in Section 4(a)(vii) (other than the certificate and
documents referred to in clause (A) thereof), (B) the certificate
referred to in Section 4(a)(xxiii)(A), and (C) such other documents
and evidence with respect to the Pass Through Trustee as Lessee or
its special counsel may reasonably request in order to establish
the due consummation of the transactions contemplated by this
Agreement, the taking of all corporate proceedings in connection
therewith and compliance with the conditions herein set forth.
(v) Lessee shall have received the opinions set forth in
Sections 4(a)(xii), 4(a)(xiii), 4(a)(xiv), 4(a)(xv), 4(a)(xvi),
4(a)(xxv), and 4(a)(xxiii)(B) in each case addressed to Lessee and
dated the Delivery Date and in each case in scope and substance
reasonably satisfactory to Lessee and its special counsel.
(vi) No action or proceeding shall have been instituted nor
shall governmental action be threatened before any court or
governmental agency, nor shall any order, judgment or decree have
been issued or proposed to be issued by any court or governmental
agency at the time of the Delivery Date to set aside, restrain,
enjoin or prevent the completion and consummation of this Agreement
or the transactions contemplated hereby.
(vii) No change shall have occurred after the date of the
execution and delivery of this Agreement in applicable law or
regulations or guidelines or interpretations by appropriate
regulatory authorities which would make it a violation of law or
regulations or guidelines for Lessee to enter into any transaction
contemplated by the Operative Documents.
(viii) There shall have been, since the date hereof, no
amendment, modification, addition or change in or to the Code, the
regulations promulgated under the Code (including temporary
regulations), Internal Revenue Service Revenue Procedures or
Revenue Rulings, or other administrative interpretations,
applicable judicial precedents or Executive Orders of the President
of the United States which might give rise to an indemnity
obligation of Lessee under any of the Operative Documents.
(ix) Lessee shall have been paid Lessor's Cost for the
Aircraft.
SECTION 5. EXTENT OF INTEREST OF NOTE HOLDERS. No Note Holder shall
have any further interest in, or other right with respect to, the mortgage
and security interests created by the Trust Indenture when and if the
principal of and interest on all Equipment Notes held by such holder and
all other sums payable to such holder hereunder, under the Trust Indenture
and under such Equipment Notes shall have been paid in full. Each Pass
Through Trustee and, by its acceptance of an Equipment Note, each Note
Holder agrees that it will look solely to the income and proceeds from the
Trust Indenture Estate to the extent available for distribution to such
Note Holder as provided in Article III of the Trust Indenture and that
neither the Owner Participant nor the Owner Trustee shall be personally
liable to the Pass Through Trustees or any Note Holder for any amounts
payable under the Equipment Notes, the Trust Indenture or hereunder, except
as expressly provided in the Operative Documents.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF LESSEE; INDEMNITIES.
(a) Representations and Warranties. Lessee represents and
warrants to the Pass Through Trustee, the Owner Trustee, the Indenture
Trustee, each Liquidity Provider, the Policy Provider, the Subordination
Agent and the Owner Participant that:
(i) Lessee is a corporation duly organized, validly existing
and in good standing under the laws of the state of its
incorporation, 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 the Lessee Documents, the Pass
Through Trust Agreements and the other Operative Documents to which
it is a party, and is duly qualified to do business as a foreign
corporation in each state in which its operations or the nature of
its business requires other than failures to so qualify which would
not have a material adverse effect on the condition (financial or
otherwise), business or properties of Lessee and its subsidiaries
considered as one enterprise;
(ii) 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 Commonwealth of Virginia) is
located in Arlington, Virginia;
(iii) the execution and delivery by Lessee of the Lessee
Documents, the Pass Through Trust Agreements and each other
Operative Document to which Lessee is a party, and the performance
of the obligations of Lessee under the Lessee Documents, the Pass
Through Trust Agreements and each other Operative Document to which
Lessee is a party, have been duly authorized by all necessary
corporate action on the part of Lessee, do not require any
stockholder approval, or approval or consent of any trustee or
holder of any material indebtedness or material obligations of
Lessee, except such as have been duly obtained and are in full
force and effect, and do not contravene any law, governmental rule,
regulation or order binding on Lessee or the certificate of
incorporation or by-laws of 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 Lessee
under, any indenture, mortgage, contract or other agreement to
which Lessee is a party or by which it may be bound or affected
which contravention, default or Lien, individually or in the
aggregate, would be reasonably likely to have a material adverse
effect on the condition (financial or otherwise), business or
properties of Lessee and its subsidiaries considered as one
enterprise provided, that insofar as the representations and
warranties set forth in this Section 6(a)(iii) apply to the
prohibited transaction rules of ERISA and Section 4975 of the Code,
such representations and warranties are based upon and subject to
the truth and accuracy of the representations, warranties and
covenants set forth in Section 7(n) and the representations and
warranties made or deemed made by each purchaser of Pass Through
Certificates issued by a Pass Through Trust;
(iv) neither the execution and delivery by Lessee of the
Lessee Documents, the Pass Through Trust Agreements or any other
Operative Document to which Lessee is a party, nor the performance
of the obligations of Lessee under the Lessee Documents, the Pass
Through Trust Agreements or the other Operative Documents to which
Lessee is a party, 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 or foreign governmental authority having
jurisdiction over Lessee, other than (A) the registration of the
Pass Through Certificates under the Securities Act and under the
securities laws of any state in which the Pass Through Certificates
may be offered for sale if the laws of such state require such
action, (B) the qualification of the Pass Through Trust Agreements
under the Trust Indenture Act of 1939, as amended, pursuant to an
order of the Securities and Exchange Commission, (C) the orders,
permits, waivers, exemptions, authorizations and approvals of the
regulatory authorities having jurisdiction over the operation of
the Aircraft by Lessee or any Sublessee required to be obtained on
or prior to the Delivery Date, which orders, permits, waivers,
exemptions, authorizations and approvals have been, or on the
Delivery Date will be, duly obtained and are, or on the Delivery
Date will be, in full force and effect, (D) the application for
registration of the Aircraft referred to in Section 4(a)(ix)(3),
(E) the registrations and filings referred to in Section 6(a)(vi),
and (F) authorizations, consents, approvals, actions, notices and
filings required to be obtained, taken, given or made either only
after the date hereof or the failure of which to obtain, take, give
or make would not be reasonably likely to have a material adverse
effect on the condition (financial or otherwise), business or
properties of Lessee and its subsidiaries considered as one
enterprise;
(v) this Agreement, each of the other Lessee Documents and
the Pass Through Trust Agreements to which Lessee is a party
constitute (or, in the case of documents to be executed on the
Delivery Date, will constitute) the legal, valid and binding
obligations of Lessee enforceable against Lessee in accordance with
their respective terms, except as the same may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance,
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 limited by applicable laws which may
affect the remedies provided in the Lease;
(vi) except for (A) the filing of the Trust Agreement with
the FAA, (B) the registration of the Aircraft pursuant to the
Transportation Code, (C) the filing for recording pursuant to the
Transportation Code of the Lease with the Lease Supplement covering
the Aircraft, the Trust Indenture and the Trust Supplement attached
thereto and made a part thereof, the Trust Indenture with the Trust
Supplement attached thereto and made a part thereof and the FAA
▇▇▇▇ of Sale, (D) the filing of financing statements (and
continuation statements at periodic intervals) with respect to the
security interests created by such documents under the Uniform
Commercial Code of Virginia and Utah and such other states as may
be specified in the opinion furnished pursuant to Section 4(a)(xi)
hereof, and (E) the taking of possession by the Indenture Trustee
of the original chattel paper counterpart of each of the Lease and
the Lease Supplement covering the Aircraft, no further filing or
recording of any document (including any financing statement in
respect thereof under Article 9 of the Uniform Commercial Code of
any applicable jurisdiction) or other action is necessary under the
laws of the United States of America or any State thereof in order
to perfect the Owner Trustee's title to and interest in the
Aircraft as against 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 Aircraft (with respect to such portion of
the Aircraft as is covered by the recording system established by
the FAA pursuant to 49 U.S.C. Section 44107) and in the Lease in
any applicable jurisdiction in the United States;
(vii) neither Lessee nor any of its Affiliates has directly
or indirectly offered any interest in the Trust Estate, the
Equipment Notes or the Pass Through Certificates for sale to any
Person other than in a manner permitted by the Securities Act and
by the rules and regulations thereunder;
(viii) Lessee is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended;
(ix) no event has occurred and is continuing which
constitutes a Lease Default or Lease Event of Default;
(x) no event has occurred and is continuing which
constitutes an Event of Loss or would constitute an Event of Loss
with the lapse of time;
(xi) Lessee is solvent and will not be rendered insolvent by
the sale of the Aircraft; after the sale of the Aircraft the
capital of Lessee will not be unreasonably small for the conduct of
the business in which Lessee is engaged or is about to engage;
Lessee has no intention or belief that it is about to incur debts
beyond its ability to pay as they mature; and Lessee's sale of the
Aircraft is made without any intent to hinder, delay or defraud
either present or future creditors;
(xii) none of the proceeds from the issuance of the
Equipment Notes or from the acquisition by the Owner Participant of
its beneficial interest in the Trust Estate will be used directly
or indirectly by Lessee to purchase or carry any "margin security"
as such term is defined in Regulation U of the Board of Governors
of the Federal Reserve System;
(xiii) on the Delivery Date, all sales or use tax then due
and for which Lessee is responsible pursuant to Section 6(b)(i)
hereof shall have been paid, other than such taxes which are being
contested by Lessee in good faith and by appropriate proceedings so
long as such proceedings do not involve any material risk of the
sale, forfeiture or loss of the Aircraft;
(xiv) except as may have been disclosed in the Lessee's
reports filed with the Securities and Exchange Commission, there
are no pending or threatened actions or proceedings that
individually or in the aggregate which could be expected to have a
material adverse effect on the condition (financial or otherwise),
business or properties of Lessee and its subsidiaries considered as
one enterprise;
(xv) the Owner Trustee will receive good and marketable
title to the Aircraft from Lessee free and clear of all Liens,
except the rights of Lessee under the Lease and the Lease
Supplement covering the Aircraft, the Lien of the Trust Indenture,
the beneficial interest of the Owner Participant in the Aircraft,
and the Liens permitted by clause (iv) (solely for Taxes not yet
due but excluding any such Taxes being contested) and clause (v) of
Section 6 of the Lease (solely securing obligations that are not
yet due, but excluding any such obligations being contested);
(xvi) the audited consolidated balance sheet of Lessee with
respect to fiscal year ended [-](2) included in Lessee's annual
report on Form 10-K for the year ended [-], [as amended], filed by
Lessee with the SEC, and the related consolidated statements of
income, stockholders' equity and cash flows for the period then
ended, have been prepared in conformity with GAAP and present
fairly in all material respects the financial condition of Lessee
and its consolidated subsidiaries as of such date and the result of
its operations and cash flows for such period; and
(xvii) Lessee holds all licenses, permits and franchises
from the appropriate Government Entities necessary to authorize
Lessee to lawfully engage in air transportation and to carry on
scheduled commercial passenger service as currently conducted,
except where the failure to so hold any such license, permit or
franchise would not be reasonably likely to have a material adverse
effect on the condition (financial or otherwise), business or
properties of Lessee and its subsidiaries considered as one
enterprise.
------------
2 Insert most recent fiscal year end.
(b) General Tax Indemnity.
(i) Indemnity. Except as provided in Section 6(b)(ii)
hereof, Lessee hereby agrees to indemnify, protect, defend and hold
harmless each Indemnitee on an after-tax basis for all Taxes
imposed by the United States or any state, local or foreign
government or taxing authority upon or with respect to (A) the
Aircraft, (B) the manufacture, ownership, delivery, lease, sale,
alteration, change in registration, sublease, possession, use,
operation, condition, maintenance, financing, inspection, overhaul,
testing, modification, storage, manufacture, purchase, acceptance,
rejection, or registration of the Aircraft, (C) the rentals or
receipts from the Aircraft, (D) the payments made pursuant to any
of the Operative Documents, (E) the interest and principal paid
with respect to the Equipment Notes and (F) the income or proceeds
from the property held in the Trust Estate or the Trust Indenture
Estate.
(ii) Exclusions from General Tax Indemnity. The provisions
of Section 6(b)(i) shall not apply to:
(1) Taxes on, based on, measured by or with respect
to the gross or net income, gross or net receipts, minimum
or alternative taxes, tax preferences, capital, net worth,
franchise or conduct of business (but not excluding sales,
use, license, rental, ad valorem, value added tax (to the
extent that such value added tax is not imposed as a
substitute for an income tax) or property taxes) (a) imposed
by the United States or by any state or local government or
taxing authority or (b) imposed by any foreign government or
taxing authority except where such Tax is imposed by reason
of the use, location, registration, subleasing, leasing or
operation of the Aircraft or the presence or activities of
Lessee in such jurisdiction and exceeds the Tax that would
have been imposed on the Indemnitee regardless of the use,
location, registration, subleasing, leasing or operation of
the Aircraft or the presence or activities of Lessee;
(2) Taxes that would not have been imposed but for a
Lessor's Lien;
(3) Taxes resulting from a voluntary transfer by the
Owner Participant of the Aircraft, the Trust Estate, or the
Operative Documents, or any interest therein, or a transfer
relating to bankruptcy or similar proceedings involving the
Owner Participant;
(4) Taxes resulting from the willful misconduct or
negligence of the Indemnitees;
(5) Taxes imposed with respect to any period after
the expiration of the Lease or the earlier discharge in full
of Lessee's obligation to pay Termination Value;
(6) Taxes imposed on any transferee (a) if such Tax
would not have been imposed on the original Indemnitee, or
(b) to the extent such Tax exceeds the amount of Tax that
would have been imposed on the original Indemnitee;
(7) Taxes which have been included in the Lessor's
Cost;
(8) Taxes imposed by a government or taxing authority
of any jurisdiction that would have been imposed on the
Indemnitee for activities or property in such jurisdiction
unrelated to the transactions contemplated by the Operative
Documents;
(9) Taxes being contested pursuant to the contest
provisions contained in Section 6(b)(iv);
(10) Taxes imposed on the Owner Trustee or the Owner
Participant based on, measured by or imposed with respect to
any fees, commissions or compensation received by it;
(11) Taxes imposed on the Owner Participant and
indemnified under the Tax Indemnity Agreement;
(12) Interest, penalties and additions to Tax to the
extent imposed as a result of the failure of the Owner
Participant to timely and properly file any return, unless
such failure is caused by Lessee's failure to timely provide
information required to be provided under the Operative
Documents;
(13) Taxes that would not have been imposed but for
an Indemnitee's breach of any covenant or the inaccuracy of
any representation or warranty of such Indemnitee in any of
the Operative Documents;
(14) Taxes in the nature of an intangible or similar
Tax imposed upon, or with respect to, (a) the value of the
Owner Participant's interest in the Trust Estate or the
Indenture Trust Estate or (b) the value or the principal
amount of any Lender's interest in any of the Equipment
Notes;
(15) U.S. withholding taxes imposed on payments to a
foreign person; and
(16) Taxes imposed by section 4975 of the Code or any
successor provision thereto.
References to the Owner Participant shall include such Person's
respective successors and permitted assigns, officers, directors, servants,
employees, agents and Affiliates.
(iii) Payments. The Lessee's indemnity obligation to an
Indemnitee under this Section 6(b) shall include any amount
necessary to hold such Indemnitee harmless (as determined in good
faith by such Indemnitee), after taking into account any tax
benefits actually realized by such Indemnitee (including, without
limitation, any benefits realized as a result of an indemnifiable
Tax being utilized by such Indemnitee as a credit against Taxes not
indemnifiable under this Section 6(b)), from the net amount of all
Taxes actually required to be paid by such Indemnitee by reason of
the receipt or accrual of the amounts payable under this Section
6(b). Each Indemnitee shall provide Lessee with such
certifications, information and documentation as shall be
reasonably requested by Lessee to minimize any indemnity payment
pursuant to this Section 6(b).
At Lessee's request, the computation of the amount of any indemnity
payment owed by Lessee or any amount owed by an Indemnitee to Lessee
pursuant to this Section 6(b) shall be verified and certified by a
nationally recognized independent public accounting firm selected by the
Indemnitee and reasonably acceptable to Lessee. The costs of such
verification (including the fee of such public accounting firm) shall be
borne by Lessee unless such verification shall result in an adjustment in
Lessee's favor of 5% or more of the net present value of the payment as
computed by such Indemnitee, in which case the costs shall be paid by such
Indemnitee.
Each Indemnitee shall promptly forward to Lessee any written
notice, ▇▇▇▇ or advice received by it from any government or taxing
authority concerning any Tax for which it seeks indemnification under this
Section 6(b); provided, however, the failure to provide such notice shall
not adversely affect such Indemnitee's right to indemnity under this
Section 6(b) except to the extent such failure materially adversely affects
the contest of the Tax. The Lessee shall pay any amount for which it is
liable pursuant to this Section 6(b) directly to the appropriate government
or taxing authority if legally permissible or, upon demand of an
Indemnitee, to such Indemnitee within 30 days of such demand (or, if a
contest occurs in accordance with Section (6)(b)(iv), within 30 days after
a Final Determination (as defined below)), but in no event more than one
business day prior to the date the Tax to which such amount payable
hereunder relates is due, provided, Lessee shall not be required to make
any payment pursuant to this Section 6(b)(iii) unless the Indemnitee elects
to pay such Tax claimed and ▇▇▇ for a refund as provided in Section
6(b)(iv). If requested by an Indemnitee in writing, Lessee shall furnish to
the appropriate Indemnitee the original or a certified copy of a receipt
for Lessee's payment of any Tax or such other evidence of payment of Tax.
For purposes of this Section 6(b), a "Final Determination" shall mean (A) a
decision, judgment, decree or other order by any court of competent
jurisdiction that occurs pursuant to the provisions of Section 6(b)(iv),
which decision, judgment, decree or other order has become final and
unappealable, (B) a closing agreement or settlement agreement entered into
in accordance with Section 6(b)(iv) that has become binding and is not
subject to further review or appeal absent fraud or misrepresentation or
(C) the termination of administrative proceedings and the expiration of the
time for instituting a claim in a court proceeding.
If any Indemnitee shall actually realize a tax savings by reason of
any Tax paid or indemnified by Lessee pursuant to this Section 6(b) and
such savings was not otherwise taken into account in computing such payment
or indemnity, such Indemnitee shall pay to Lessee an amount equal to the
lesser of (A) the amount of such tax savings, plus any additional tax
savings actually realized as the result of any payment made pursuant to
this sentence and (B) the amount of all payments made by Lessee to such
Indemnitee (reduced by any payments previously made by such Indemnitee to
Lessee pursuant to this Section 6(b)), and the excess, if any, of the
amount described in clause (A) over the amount described in clause (B)
shall be carried forward and applied to reduce pro tanto any subsequent
obligations of Lessee to make payments to such Indemnitee pursuant to this
Section 6(b)). No Indemnitee shall have any obligation to make any payment
while a Lease Event of Default has occurred and is continuing.
Any Taxes that are imposed on any Indemnitee as a result of the
disallowance or reduction of any tax benefit referred to in this Section
6(b) pursuant to a Final Determination by a tax authority as to which such
Indemnitee has made the payment to Lessee required hereby or which tax
benefit was otherwise taken into account in computing Lessee's indemnity
obligation pursuant to this Section 6(b) in a taxable year subsequent to
the utilization by such Indemnitee shall be treated as a Tax for which
Lessee is obligated to indemnify pursuant to this Section 6(b).
(iv) Contests. If a written claim is made against an
Indemnitee or if any proceeding is commenced against an Indemnitee
(including a written notice of such proceeding) for Taxes as to
which Lessee could be liable for payment or indemnity hereunder, or
if an Indemnitee makes a determination that a Tax is due for which
Lessee could have an indemnity obligation hereunder, such
Indemnitee shall promptly give Lessee notice in writing of such
claim (provided, however, that the failure to provide such notice
shall not affect Lessee's obligations hereunder to the Owner
Participant unless such failure shall materially adversely affect
the right to contest such claim) and shall not take any action with
respect to such claim or Tax without the consent of Lessee for 30
days following the receipt of such notice by Lessee; provided,
however, that, if such Indemnitee shall be required by law to take
action prior to the end of such 30-day period, such Indemnitee
shall, in such notice to Lessee, so inform Lessee, and such
Indemnitee shall take no action for as long as it is legally able
to do so (it being understood that an Indemnitee shall be entitled
to pay the Tax claimed and ▇▇▇ for a refund prior to the end of
such 30-day period if (A)(I) the failure to so pay the Tax would
result in substantial penalties (unless immediately reimbursed by
Lessee) and the act of paying the Tax would not prejudice the right
to contest or (II) the failure to so pay would result in criminal
penalties and (B) such Indemnitee shall act in connection with
paying the Tax in the manner that is the least prejudicial to the
pursuit of the contest). In addition, such Indemnitee shall
(provided that Lessee shall have agreed to keep such information
confidential other than to the extent necessary in order to contest
the claim) furnish Lessee with copies of any requests for
information from any taxing authority relating to such Taxes with
respect to which Lessee may be required to indemnify hereunder. If
requested by Lessee in writing within 30 days after its receipt of
such notice, such Indemnitee shall, at the expense of Lessee
(including all reasonable out-of-pocket costs and reasonable
attorney and accountants fees), in good faith contest (or, if
permitted by applicable law, allow Lessee to contest) through
appropriate administrative and judicial proceedings the validity,
applicability or amount of such Taxes by (X) resisting payment
thereof, (Y) not paying the same except under protest if protest is
necessary and proper or (Z) if the payment is made, using
reasonable efforts to obtain a refund thereof in an appropriate
administrative and/or judicial proceeding. If requested to do so by
Lessee, the Indemnitee shall appeal any adverse administrative or
judicial decision, except that the Indemnitee shall not be required
to pursue any appeals to the United States Supreme Court. If and to
the extent the Indemnitee is able to separate the contested issue
or issues from other issues arising in the same administrative or
judicial proceeding that are unrelated to the transactions
contemplated by the Operative Documents without, in the good faith
judgment of such Indemnitee, adversely affecting such Indemnitee,
such Indemnitee shall permit Lessee to control the conduct of any
such proceeding and shall provide to Lessee such information or
data that is in such Indemnitee's control or possession that is
reasonably necessary to conduct such contest. In the case of a
contest controlled by an Indemnitee, such Indemnitee shall consult
with Lessee in good faith regarding the manner of contesting such
claim and shall keep Lessee reasonably informed regarding the
progress of such contest. An Indemnitee shall not fail to take any
action expressly required by this Section 6(b)(iv) (including,
without limitation, any action regarding any appeal of an adverse
determination with respect to any claim) or settle or compromise
any claim without the prior written consent of Lessee (except as
contemplated by this Section 6(b)(iv)).
Notwithstanding the foregoing, in no event shall an Indemnitee be
required to pursue any contest (or to permit Lessee to pursue any contest)
unless (A) Lessee shall have agreed to pay such Indemnitee on demand all
reasonable out-of-pocket costs and reasonable attorney and accountants fees
that such Indemnitee shall incur in connection with contesting such claim,
(B) if such contest shall involve the payment of the claim, Lessee shall
advance the amount thereof plus (to the extent indemnified hereunder)
interest, penalties and additions to tax with respect thereto that are
required to be paid prior to the commencement of such contest on an
interest-free basis and with no additional net after-tax cost to such
Indemnitee (and such Indemnitee shall promptly pay to Lessee any net
realized tax benefits resulting from any imputed interest deduction arising
from such interest free advance from Lessee plus any tax benefits resulting
from making any such payment), (C) such Indemnitee shall have reasonably
determined that the action to be taken will not result in any material risk
of forfeiture, sale or loss of the Aircraft (unless Lessee shall have made
provisions to protect the interests of any such Indemnitee), (D) no Lease
Event of Default shall have occurred and be continuing at the time the
contest is begun unless Lessee has provided security for its obligations
hereunder by advancing to such Indemnitee before proceeding with such
contest, the amount of the Tax being contested, plus any interest and
penalties and an amount estimated in good faith by such Indemnitee for
reasonable expenses, and (E) in the case of a contest that is being pursued
by an Indemnitee, the aggregate amount of the claim (together with the
amount of all similar or logically related claims that have been or could
be raised with any or all of the other Aircraft leased by the Owner
Participant to Lessee or raised in any other audit for which Lessee would
have an indemnity obligation under this Section 6(b)(iv)) is at least
$3,000. Notwithstanding the foregoing, if any Indemnitee shall release,
waive, compromise or settle any claim which may be indemnifiable by Lessee
pursuant to this Section 6(b) without the written permission of Lessee,
Lessee's obligation to indemnify such Indemnitee with respect to such claim
(and all directly related claims and claims based on the outcome of such
claim) shall terminate, subject to this Section 6(b)(iv), and subject to
Section 6(b)(iii), such Indemnitee shall repay to Lessee any amount
previously paid or advanced to such Indemnitee with respect to such claim,
plus interest at the rate that would have been payable by the relevant
taxing authority with respect to a refund of such Tax.
Notwithstanding anything contained in this Section 6(b), an
Indemnitee will not be required to contest the imposition of any Tax and
shall be permitted to settle or compromise any claim without Lessee's
consent if such Indemnitee (A) shall waive its right to indemnity under
this Section 6(b), with respect to such Tax (and any directly related claim
and any claim the outcome of which is determined based upon the outcome of
such claim) and (B) shall pay to Lessee any amount previously paid or
advanced by Lessee pursuant to this Section 6(b) with respect to such Tax,
plus interest at the rate that would have been payable by the relevant
taxing authority with respect to a refund of such Tax.
(v) Refunds. If any Indemnitee shall receive a refund or
credit (or would have received such refund or credit but for a
counterclaim or other claim not indemnified by Lessee hereunder (a
"deemed refund or credit")) with respect to all or any part of any
Taxes paid, reimbursed or advanced by Lessee, in each case, whether
by means of a deduction, credit, refund or otherwise, and which was
not taken into account in computing such payment or indemnity, such
Indemnitee shall pay to Lessee within 30 days of such receipt or,
in the case of a deemed refund or credit, within 30 days of the
resolution of such contest, an amount equal to the lesser of (A)
the amount of such refund or credit or deemed refund or credit
actually realized by such Indemnitee, plus any additional tax
savings actually realized by such Indemnitee as a result of any
payment made pursuant to this sentence (including clause (A)), and
(B) such tax payment, reimbursement or advance by Lessee to such
Indemnitee theretofore made pursuant to this Section 6(b) and the
excess, if any, of the amount described in clause (A) over the
amount described in clause (B) shall be carried forward and applied
to reduce pro tanto any subsequent obligations of Lessee to make
payments to such Indemnitee pursuant to this Section 6(b)). If, in
addition to such refund or credit (or deemed refund or credit),
such Indemnitee shall receive or be credited with (or would have
received but for a counterclaim or other claim not indemnified by
Lessee hereunder) an amount representing interest on the amount of
such refund or credit or deemed refund or credit, as the case may
be, such Indemnitee shall pay to Lessee within 30 days of such
receipt or, in the case of a deemed refund or credit, within 30
days of the resolution or such contest, that portion of such
interest that shall be fairly attributable to Taxes paid,
reimbursed or advanced by Lessee prior to the receipt of such
refund or credit or deemed refund or credit. Each Indemnitee agrees
to reasonably cooperate with Lessee in claiming and pursuing any
such refunds or credits of any Taxes payable or indemnifiable
pursuant to this Section 6(b).
(vi) Tax Filing. If any report, return or statement is
required to be filed with respect to any Tax which is subject to
indemnification under this Section 6(b), Lessee shall timely file
the same (except for any such report, return or statement which an
Indemnitee has timely notified Lessee in writing that such
Indemnitee intends to file, or for which such Indemnitee is
required by law to file, in its own name); provided, that the
relevant Indemnitee shall furnish Lessee with any information in
such Indemnitee's possession or control that is reasonably
necessary to file any such return, report or statement and is
reasonably requested in writing by Lessee, but in no event shall be
obligated to furnish tax returns, although it may be required to
furnish relevant information contained therein. The Lessee shall
either file such report, return or statement and send a copy of
such report, return or statement to such Indemnitee, and the Owner
Trustee if the Indemnitee is not the Owner Trustee, or, where
Lessee is not permitted to file such report, return or statement,
it shall notify such Indemnitee of such requirement and prepare and
deliver such report, return or statement to such Indemnitee in a
manner satisfactory to such Indemnitee within a reasonable time
prior to the time such report, return or statement is to be filed.
(vii) Forms. Each Indemnitee agrees to furnish from time to
time to Lessee or the Indenture Trustee or to such other Person as
Lessee or the Indenture Trustee may designate, at Lessee's or the
Indenture Trustee's request, such duly executed and properly
completed forms as may be necessary or appropriate in order to
claim any reduction of or exemption from any withholding or other
Tax imposed by any government or taxing authority, if (A) such
reduction or exemption is available to such Indemnitee and (B)
Lessee has provided such Indemnitee with any information necessary
to complete such form not otherwise reasonably available to such
Indemnitee.
(viii) Non-Parties. If an Indemnitee is not a party to this
Agreement, Lessee may require the Indemnitee to agree in writing,
in a form reasonably acceptable to Lessee, to the terms of this
Section 6(b) prior to making any payment to such Indemnitee under
this Section 6(b).
(ix) Subrogation. Upon payment of any Tax by Lessee pursuant
to this Section 6(b) to or on behalf of an Indemnitee, Lessee,
without any further action, shall be subrogated to any claims that
such Indemnitee may have relating thereto. Such Indemnitee shall
cooperate with Lessee to permit Lessee to pursue such claims.
(c) General Indemnity. Lessee hereby agrees to indemnify
each Indemnitee against, and agrees to protect, save and keep harmless each
of them from (whether or not the transactions contemplated herein or in any
of the other Operative Documents are consummated), any and all Expenses
imposed on, incurred by or asserted against any Indemnitee, in any way
relating to, based on or arising out of (A) the execution, delivery and
performance of the Operative Documents or the Pass Through Documents and
the transactions contemplated thereby; (B) the manufacture, purchase,
acceptance or rejection of the Airframe or any Engine or Parts; (C) the
Aircraft (or any portion thereof) or any engine installed on the Airframe
or any airframe on which an Engine is installed whether or not arising out
of the manufacture, purchase, registration, reregistration, financing,
refinancing, ownership, delivery, nondelivery, inspection, lease, sublease,
possession, storage, use or non-use, operation, maintenance, overhaul,
modification, alteration, condition, replacement, repair, substitution,
sale, return or other disposition of the Aircraft including, without
limitation, any violation of law relating to the Aircraft (including
environmental laws), latent or other defects, whether or not discoverable,
strict tort liability and any claim for patent, trademark or copyright
infringement; (D) the offer or sale of any interest in the Trust Estate or
the Trust Agreement or any similar interest on or prior to the Delivery
Date (including any violation of securities laws or ERISA); or (E) the
offer or sale of any interest in the Equipment Notes or the Pass Through
Certificates (or other evidence of the debt relating to the Aircraft) on
the Delivery Date or in connection with a refinancing in accordance with
the terms hereof (including any violation of securities laws or ERISA);
provided, that the foregoing indemnity shall not extend to an Indemnitee
with respect to any Expense to the extent such Expense is attributable to
one or more of the following: (1) any representation or warranty by such
Indemnitee in the Operative Documents or the Pass Through Documents being
incorrect, or (2) the failure by such Indemnitee to perform or observe any
of its agreements, covenants or conditions in any of the Operative
Documents or the Pass Through Documents, or (3) the willful misconduct or
the gross negligence of such Indemnitee, or (4) (A) in the case of any
Indemnitee, the offer, sale or other disposition (voluntary or involuntary)
by such Indemnitee of all or any part of its interest in the Airframe or
any Engine (other than during the continuance of a Lease Event of Default
or pursuant to and in accordance with Sections 9, 10, 15 or 19 of the
Lease), (B) in the case of a Note Holder, the offer, sale or other
disposition (voluntary or involuntary) by such Note Holder of all or any
part of its interest in any Equipment Note or (C) in the case of any
Indemnitee, the offer, sale or other disposition by such Indemnitee of all
or any part of such Indemnitee's interest in the Operative Documents, or
(5) any Tax (other than taxes under ERISA or Section 4975 of the Code that
are not excluded from the foregoing indemnity by reason of clause 18 below)
whether or not Lessee is required to indemnify for such Tax pursuant to
Section 6(b) hereof (it being understood that Section 6(b) hereof and the
Tax Indemnity Agreement exclusively provide for Lessee's liability with
respect to Taxes), or (6) in the case of the Owner Participant, the offer
or sale by the Owner Participant after the Delivery Date of any interest in
the Trust Estate or the Trust Agreement or any similar interest except
during the continuance of an Event of Default so long as such disposition
is made in accordance with Section 7(k), or (7) in the case of the Owner
Trustee in its individual and trust capacities, and the Affiliates,
successors and assigns thereof, a failure on the part of the Owner Trustee
to distribute in accordance with the Trust Agreement any amounts
distributable by it thereunder, or (8) in the case of the Indenture Trustee
in its individual and trust capacities, failure on the part of the
Indenture Trustee to distribute in accordance with the Trust Indenture any
amounts distributable by it thereunder, or (9) in the case of any Pass
Through Trustee, failure on the part of such Pass Through Trustee or the
Subordination Agent to distribute in accordance with the Intercreditor
Agreement and the Pass Through Trust Agreement amounts received and
distributable thereunder, or (10) the authorization or giving or
withholding of any future amendments, supplements, waivers or consents with
respect to any of the Operative Documents which amendments, supplements,
waivers or consents (a) are not or were not requested by Lessee or (b) are
not occasioned by a specific requirement of the Operative Documents, or
(11) except to the extent fairly attributable to acts or events occurring
during the Term or actions taken (or required to be taken and not taken)
during the Term, actions taken (or required to be taken and not taken) or
events occurring after the earlier of: (I) the return of possession of the
Aircraft to the Owner Trustee or its designee pursuant to the terms of the
Lease (other than pursuant to and in accordance with Section 15 thereof, in
which case Lessee's liability under this Section 6(c) shall survive for so
long as Lessor shall be entitled to exercise remedies under such Section
15), (II) the termination of the Term in accordance with Section 9 of the
Lease, (III) the payment by Lessee of all amounts required to be paid under
the Lease following an Event of Loss or (IV) termination of the Lease and
payment by Lessee of all amounts required to be paid by Lessee pursuant to
the terms of the Operative Documents or (12) any amount which any
Indemnitee expressly agrees to pay under any Operative Document or any
amount which is expressly stated to be an Expense that is not reimbursable
by Lessee under the Operative Documents, or (13) any amount that is an
ordinary and usual operating or overhead expense of any Indemnitee (it
being understood out-of-pocket expenses payable to third parties do not
constitute "ordinary and usual operating and overhead expenses"), or (14)
any amounts relating to the deregistration with the FAA of the Aircraft as
a result of the Owner Participant or the Owner Trustee, as the case may be,
not being a Citizen of the United States or any other act or omission of
the Owner Trustee, the Owner Participant or such Indemnitee, or (15) any
amounts attributable to any Lien which such Indemnitee is required to
remove pursuant to the terms of the Operative Documents or the Pass Through
Documents, or (16) any loss of tax benefits or increases in tax liability
whether or not the Lessee is required to indemnify an Indemnitee elsewhere
in the Operative Documents, or (17) principal of, or interest or premium on
the Equipment Notes, or (18) any prohibited transaction, within the meaning
of Section 406 of ERISA or Section 4975(c)(1) of the Code, occurring with
respect to the purchase or holding of any Pass Through Certificate (i) over
which purchase or holding the Owner Participant or any Affiliate thereof
has discretion or control (other than in the capacity of a directed trustee
or custodian), or (ii) by an employee benefit plan, within the meaning of
Section 3(3) of ERISA, or individual retirement account or plan subject to
Section 4975 of the Code with respect to which the Owner Participant (or
any Affiliate thereof) has the power, directly or indirectly, to appoint or
terminate, or to negotiate the terms of the management agreement with, the
Person or Persons having discretion or control (other than in the capacity
of a directed trustee or custodian), over such purchase or holding, or (19)
without limiting any indemnification otherwise expressly provided under the
Operative Documents, any amount payable under the Pass Through Documents
(other than the Participation Agreement) to the extent not included in the
definition of Supplemental Rent.
Lessee's indemnity obligation to an Indemnitee under this
Section 6(c) shall equal the amount which, after taking into account any
Tax imposed upon the receipt or accrual of the amounts payable under this
Section 6(c) and any tax benefits realized by such Indemnitee as a result
of the accrual or payment of such Expense shall equal the amount of the
Expense indemnifiable under this Section 6(c).
If any Indemnitee shall realize a tax savings by reason of
any Tax paid or indemnified by Lessee pursuant to this Section 6(c)
(whether such tax savings shall be by means of a foreign tax credit,
depreciation or cost recovery deduction or otherwise) and such savings is
not otherwise taken into account in computing such payment or indemnity
such Indemnitee shall pay to Lessee an amount equal to the lesser of (i)
the amount of such tax savings, plus any additional tax savings recognized
as the result of any payment made pursuant to this sentence, when, as if,
and to the extent, realized or (ii) the amount of all payments pursuant to
this Section 6(c) by Lessee to such Indemnitee (less any payments
previously made by such Indemnitee to Lessee pursuant to this Section 6(c))
(and the excess, if any, of the amount described in clause (i) over the
amount described in clause (ii) shall be carried forward and applied to
reduce pro tanto any subsequent obligations of Lessee to make payments to
such Indemnitee pursuant to this Section 6(c)).
Nothing in this Section 6(c) shall be construed as a
guaranty by Lessee of payments due pursuant to the Equipment Notes or of
the residual value of the Aircraft.
If a claim is made against an Indemnitee involving one or
more Expenses and such Indemnitee has notice thereof, such Indemnitee shall
promptly after receiving such notice give notice of such claim to Lessee;
provided that the failure to give such notice shall not affect the
obligations of Lessee hereunder except to the extent Lessee is prejudiced
by such failure or the Lessee's indemnification obligations are increased
as a result of such failure. If no Lease Event of Default shall have
occurred and be continuing, Lessee shall be entitled, at its sole cost and
expense, acting through counsel reasonably acceptable to the respective
Indemnitee, (A) in any judicial or administrative proceeding that involves
solely a claim for one or more Expenses, to assume responsibility for and
control thereof, (B) in any judicial or administrative proceeding involving
a claim for one or more Expenses and other claims related or unrelated to
the transactions contemplated by the Operative Documents, to assume
responsibility for and control of such claim for Expenses to the extent
that the same may be and is severed from such other claims (and such
Indemnitee shall use its best efforts to obtain such severance), and (C) in
any other case, to be consulted by such Indemnitee with respect to judicial
proceedings subject to the control of such Indemnitee and to be allowed, at
Lessee's sole expense, to participate therein. Notwithstanding any of the
foregoing to the contrary, Lessee shall not be entitled to assume
responsibility for and control of any such judicial or administrative
proceedings if such proceedings will involve a material risk of the sale,
forfeiture or loss of, or the creation of any Lien (other than a Permitted
Lien) on, the Aircraft, the Trust Estate, the Trust Indenture Estate or any
part thereof unless in such an event Lessee shall have posted a bond or
other security satisfactory to the relevant Indemnitees in respect to such
risk. The Indemnitee may participate at its own expense and with its own
counsel in any judicial proceeding controlled by Lessee pursuant to the
preceding provisions.
The affected Indemnitee shall supply Lessee with such
information reasonably requested by Lessee as is necessary or advisable for
Lessee to control or participate in any proceeding to the extent permitted
by this Section 6(c). Such Indemnitee shall not enter into a settlement or
other compromise with respect to any Expense without the prior written
consent of Lessee, which consent shall not be unreasonably withheld or
delayed, unless such Indemnitee waives its right to be indemnified with
respect to such Expense under this Section 6(c).
The Lessee shall supply the Indemnitee with such information
reasonably requested by the Indemnitee as is necessary or advisable for the
Indemnitee to control or participate in any proceeding to the extent
permitted by this Section 6(c).
Upon payment of any Expense pursuant to this Section 6(c),
Lessee, without any further action, shall be subrogated to any claims the
Indemnitee may have relating thereto. The Indemnitee agrees to give such
further assurances or agreements and to cooperate with Lessee to permit
Lessee to pursue such claims, if any, to the extent reasonably requested by
Lessee.
If an Indemnitee is reimbursed, in whole or in part, with
respect to any Expense paid by Lessee hereunder, it will promptly pay the
amount refunded, including interest received thereto (but not an amount in
excess of the amount Lessee or any of its insurers has paid in respect of
such Expense pursuant to this Section 6(c)) over to Lessee.
To the extent permitted by applicable law, interest at the
Base Rate plus one percent (1.0%) shall be paid, on demand, on any amount
or indemnity not paid when due pursuant to this Section 6 until the same
shall be paid. Such interest shall be paid in the same manner as the unpaid
amount in respect of which such interest is due.
Any amount which is payable to Lessee by any Person pursuant
to this Section 6 shall not be paid to Lessee if a Lease Event of Default
has occurred and is continuing or if any payment is due and owing by Lessee
to such Person under the Lease or any other Operative Document. Any such
amount shall be held by such Person (the Lessee hereby granting a security
interest in such amount to such Person) and, if a Lease Event of Default
shall have occurred and be continuing, shall be applied against Lessee's
obligations hereunder to such Person as and when due (and, to the extent
that Lessee has no obligations hereunder to such Person, such amount shall
be paid to Lessee). At such time as there shall not be continuing any such
Lease Event of Default or there shall not be due and owing any such
payment, such amount shall be paid to Lessee to the extent not previously
applied in accordance with the immediately preceding sentence.
SECTION 7. REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) Covenants Regarding Citizenship. Each of the Owner
Participant and First Security Bank, National Association, in its
individual capacity, represents and warrants to the other parties to this
Agreement that it is, and on the Delivery Date will be, a Citizen of the
United States without making use of any voting trust, voting powers
agreement or similar arrangement. The Owner Participant agrees, solely for
the benefit of Lessee and the Loan Participants, that if (i) it shall cease
to be, or believes itself likely to cease to be, a Citizen of the United
States and (ii) the Aircraft shall or would therefore become ineligible for
registration in the name of the Owner Trustee under the Transportation Code
and regulations then applicable thereunder, then the Owner Participant
shall (at its own expense and without any reimbursement or indemnification
from Lessee) as soon as practicable, but in any event within 60 days of
obtaining knowledge of such ineligibility or loss of citizenship effect a
voting trust, voting powers agreement or other similar arrangement or take
any other action as may be necessary to prevent any deregistration and to
maintain the United States registration of the Aircraft. It is agreed that:
(A) the Owner Participant shall be liable to pay on request to each of the
other parties hereto and to each holder of a Equipment Note for any damages
suffered by any such other party or holder as the result of the
representation and warranty of the Owner Participant in the first sentence
of this Section 7(a) proving to be untrue as of the Delivery Date; and (B)
the Owner Participant shall be liable to Lessee, any Sublessee and the Loan
Participants for any damages which may be incurred by Lessee, any Sublessee
or the Loan Participants as a result of the Owner Participant's failure to
comply with its obligations pursuant to the second sentence of this Section
7(a). Each party hereto agrees, upon the request and at the sole expense of
the Owner Participant, to cooperate with the Owner Participant in complying
with its obligations under the provisions of the second sentence of this
Section 7(a). First Security Bank, National Association, in its individual
capacity, agrees that if at any time an officer or responsible employee of
the Corporate Trust Department of First Security Bank, National
Association, shall obtain actual knowledge that First Security Bank,
National Association, has ceased to be a Citizen of the United States
without making use of a voting trust, voting powers agreement or similar
arrangement, it will promptly resign as Owner Trustee (if and so long as
such citizenship is necessary under the Transportation Code as in effect at
such time or, if it is not necessary, if and so long as the Owner Trustee's
citizenship would have any material adverse effect on the Loan
Participants, Lessee or the Owner Participant), effective upon the
appointment of a successor Owner Trustee in accordance with Section 9.01 of
the Trust Agreement. If the Owner Participant or First Security Bank,
National Association, in its individual capacity, does not comply with the
requirements of this Section 7(a), the Owner Trustee, the Indenture Trustee
and the Participants hereby agree that a Lease Default or Lease Event of
Default shall not have occurred and be continuing due to non-compliance by
Lessee with the registration requirements in the Lease.
(b) Location of Records. First Security Bank, National
Association, in its individual capacity, agrees that it will not change the
location of its principal place of business or the office where it
maintains its books and records with respect to the Aircraft and the Trust
Estate to a location outside of Salt Lake City, Utah, without prior written
notice to all parties.
(c) Securities Act. Each Loan Participant represents and
warrants that neither it nor anyone acting in its behalf has offered any
Equipment Notes for sale to, or solicited any offer to buy any Equipment
Note from, any Person or entity other than in a manner in compliance with,
and which does not require registration under, the Securities Act or the
rules and regulations thereunder.
(d) Reregistration. The Owner Participant, the Indenture
Trustee, the Pass Through Trustee and each Loan Participant agree that, at
any time after the Depreciation Period, so long as no Lease Event of
Default shall have occurred and be continuing, Lessee may elect to effect a
change in registration of the Aircraft, at Lessee's cost and expense, so
long as the country of registry of the Aircraft is a country listed in the
last paragraph of this Section 7(d). Upon the request of the Lessee, the
country list in the last paragraph of this Section 7(d) may be amended from
time to time to include any other country which the Owner Participant and
the Indenture Trustee have determined, acting reasonably, would provide
substantially equivalent protection for the rights of owner participants,
lessors or lenders in similar transactions as provided under the laws of
the United States and the states thereof. In order for Lessee to effect a
change in the country of registry of the Aircraft, Lessee shall deliver to
the Owner Participant, the Owner Trustee (in its individual capacity) and
the Indenture Trustee the following:
(I) an Officer's Certificate certifying that (A) the insurance
or self-insurance required by Section 11 of the Lease shall
be in full force and effect at the time of such change in
registration after giving effect to such change in
registration, (B) all indemnities in favor of the Owner
Participant, the Owner Trustee (in its individual capacity
and as trustee under the Trust Agreement) and the Indenture
Trustee under any Operative Document afford each such party
substantially the same protection as provided prior to such
change of registry, (C) the lien of the Trust Indenture in
favor of the Trustee will continue as a first priority lien
following such change of registry, (D) such change will not
result in the imposition of, or increase in the amount of,
any Tax for which Lessee is not required to indemnify, or is
not then willing to enter into a binding agreement to
indemnify, the Owner Participant, the Note Holders, the
Indenture Trustee, the Owner Trustee (in its individual
capacity and as trustee under the Trust Agreement), the
Indenture Trustee or the Trust Estate pursuant to this
Agreement or the Tax Indemnity Agreement, and (E) that the
new country of registry imposes aircraft maintenance
standards not materially less stringent from those of any
Permitted Foreign Air Authority; and
(II) a favorable opinion (subject to customary exceptions) of
counsel (opinion and counsel reasonably acceptable to the
Owner Participant) addressed to the Owner Participant and
the Indenture Trustee, from counsel of recognized reputation
qualified in the laws of the relevant jurisdiction to the
effect that: (A) the obligations of Lessee, and the rights
and remedies of the Owner Trustee, under the Lease shall
remain valid, binding and (subject to customary bankruptcy
and equitable remedies exceptions and to other exceptions
customary in foreign opinions generally) enforceable under
the laws of such jurisdiction (or the laws of the
jurisdiction to which the laws of such jurisdiction would
refer as the applicable governing law); (B) it is not
necessary, solely as a consequence of such change in
registration and without giving effect to any other activity
of the Owner Trustee, the Owner Participant or the Indenture
Trustee (or any Affiliate thereof), as the case may be, for
the Owner Trustee, the Owner Participant or the Indenture
Trustee to register or qualify to do business in such
jurisdiction; (C) there is no tort liability of the owner of
an aircraft not in possession thereof under the laws of such
jurisdiction (it being agreed that, in the event such latter
opinion cannot be given in a form satisfactory to the Owner
Participant, such opinion shall be waived if insurance
reasonably satisfactory to the Owner Participant is provided
to cover such risk); (D) unless Lessee shall have agreed to
provide insurance covering the risk of requisition of use of
such Aircraft by the government of such jurisdiction so long
as such Aircraft is registered under the laws of such
jurisdiction, the laws of such jurisdiction require fair
compensation by the government of such jurisdiction payable
in currency freely convertible into Dollars for the loss of
use of such Aircraft in the event of the requisition by such
government of such use; and (E) after giving effect to such
change in registration, the Lien of the Trust Indenture on
the Owner Trustee's right, title and interest in and to the
Aircraft and the Lease shall continue as a valid and duly
perfected first priority security interest and all filing,
recording or other action necessary to protect the same
shall have been accomplished (or, if such opinion cannot be
given at the time of such proposed change in registration
because such change in registration is not yet effective,
(1) the opinion shall detail what filing, recording or other
action is necessary, and (2) the Owner Trustee and the
Indenture Trustee shall have received a certificate from
Lessee that all possible preparations to accomplish such
filing, recording and other action shall have been done, and
such filing, recording and other action shall be
accomplished and a supplemental opinion to that effect shall
be delivered to the Owner Trustee and the Indenture Trustee
on or prior to the effective date of such change in
registration).
Upon receipt of the foregoing certificate and opinion, the Owner
Participant and the Indenture Trustee will instruct the Owner Trustee to
make such change of registration.
Lessee shall pay all reasonable costs, expenses, fees,
recording and registration taxes, including the reasonable fees and
expenses of counsel to the Owner Trustee, the Owner Participant and the
Indenture Trustee, and other charges in connection with any such change in
registration.
The list of countries in which Lessee is permitted to effect
a reregistration of the Aircraft in accordance with the procedures of this
Section 7(d) is as follows:
Australia Malta
Austria Mexico
Bahamas Netherlands
Belgium New Zealand
Bermuda Norway
Brazil People's Republic of China
Canada Philippines
Denmark Portugal
Finland Republic of China (Taiwan)*
France Singapore
Germany South Korea
Grenada Spain
Greece Sweden
Iceland Switzerland
India Thailand
Ireland Tobago
Italy Trinidad
Jamaica Turkey
Japan United Kingdom
Luxembourg United States of America
Malaysia Venezuela
*So long as on the date of registration such country and the United
States of America have diplomatic relations at least as good as those in
effect on the Delivery Date.
(e) Owner Participant Representations and Warranties. The
Owner Participant represents and warrants to Lessee, the Owner Trustee, the
Indenture Trustee, the Pass Through Trustee, the Subordination Agent, the
Liquidity Provider, the Policy Provider and the Owner Trustee, in its
capacity as such and in its individual capacity, as follows:
(i) it is duly incorporated, validly existing and in good
standing under the laws of the State of [-] and has the corporate
power and authority to carry on its present business and operations
and to own or lease its properties, and has the corporate power and
authority to enter into and to perform its obligations under the
Owner Participant Documents; this Agreement and the other Owner
Participant Documents have been duly authorized, executed and
delivered by it; and this Agreement and each of the other Owner
Participant Documents constitute the legal, valid and binding
obligations of the Owner Participant 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; and the Owner Participant is a
Qualified Owner Participant;
(ii) neither (A) the execution and delivery by the Owner
Participant of the Owner Participant Documents nor (B) compliance
by it with all of the provisions 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 other than such laws,
rules or regulations relating to the citizenship requirements of
the Owner Participant under applicable law), or (y) will contravene
the provisions of, or constitutes or has constituted or will
constitute a default under, or result in the creation of any Lien
(other than Liens provided for in the Operative Documents) upon any
property of the Owner Participant 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;
(iii) 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 Transportation Code
or the regulations promulgated thereunder) is required for the due
execution, delivery or performance by it of the Owner Participant
Documents;
(iv) there are no pending or, to its knowledge, threatened
actions or proceedings before any court or administrative agency or
arbitrator which would materially adversely affect the Owner
Participant's ability to perform its obligations under this
Agreement, the Participation Agreement, the Tax Indemnity Agreement
and the Trust Agreement;
(v) 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
financing contemplated hereby and agreed to herein by the Owner
Participant, Lessee has not acted as agent of the Owner
Participant) has directly or indirectly offered any Equipment Note
or Pass Through Certificate 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 is being acquired for its own account and is being
purchased for investment and not with a view to any resale or
distribution thereof;
(vi) on the Delivery Date, the Trust Estate shall be free of
Lessor Liens attributable to the Owner Participant; and
(vii) it is a Citizen of the United States (without making
use of a voting trust agreement, voting powers agreement or similar
arrangement).
(f) Lessor Liens. Each of First Security Bank, National
Association, in its individual capacity, and the Owner Participant
covenants and agrees that it shall not cause or permit to exist a Lessor
Lien attributable to it with respect to the Aircraft or any other portion
of the Trust Estate. Each of First Security Bank, National Association, in
its individual capacity, and the Owner Participant agrees that it will
promptly, at its own expense, take such action as may be necessary duly to
discharge such Lessor Lien attributable to it. Each of First Security Bank,
National Association, in its individual capacity, and the Owner Participant
agrees to make restitution to the Trust Estate for any actual diminution of
the assets of the Trust Estate resulting from Lessor Liens attributable to
it. The Owner Participant agrees to make restitution to the Trust Estate
for any actual diminution of the assets of the Trust Estate resulting from
any Taxes or Expenses imposed on the Trust Estate against which Lessee is
not required to indemnify the Trust Estate pursuant to Section 6.
(g) Quiet Enjoyment. Each Loan Participant and each of the
Indenture Trustee, the Subordination Agent, the Owner Trustee, the Pass
Through Trustee and the Owner Participant covenants and agrees that, so
long as no Lease Event of Default shall have occurred and be continuing and
the Lessee has not been duly declared in default and, notwithstanding
default by any Loan Participant, the Indenture Trustee, the Owner Trustee,
the Pass Through Trustee or the Owner Participant, that such Person shall
not (and shall not permit any Affiliate or other Person claiming by,
through or under it to) interfere with Lessee's (or any Sublessee's)
continued possession, use and operation of, and quiet enjoyment of, the
Aircraft or Lessee's rights, benefits and obligations pursuant to the
Transactions during the Term of the Lease, and the Lease shall not be
terminated except as expressly provided therein.
(h) Equipment Notes Acquired for Investment. Each Loan
Participant represents and warrants that the Equipment Note to be issued to
it pursuant to the Trust Indenture is being acquired by it for investment
and not with a view to resale or distribution (it being understood that
such Loan Participant may pledge or assign as security its interest in each
Equipment Note issued to it), except that the Loan Participants may sell,
transfer or otherwise dispose of any Equipment Note or any portion thereof,
or grant participations therein, in a manner which in itself does not
require registration under the Securities Act.
(i) [Reserved.]
(j) Representations, Warranties and Covenants of Indenture
Trustee. State Street Bank and Trust Company of Connecticut, National
Association represents, warrants (as of the Delivery Date) and covenants,
in its individual capacity, to Lessee, the Owner Trustee, the Pass Through
Trustee, the Subordination Agent, the Liquidity Provider, the Policy
Provider and the Owner Participant as follows:
(i) the Indenture Trustee is a national banking association
duly incorporated, validly existing and in good standing under the
laws of the United States, is a Citizen of the United States
(without making use of any voting trust, voting powers agreement or
similar arrangement), will notify promptly all parties to this
Agreement if in its reasonable opinion its status as a Citizen of
the United States (without making use of any voting trust, voting
powers agreement or similar arrangement) is likely to change and
will resign as Indenture Trustee as provided in Section 8.02 of the
Trust Indenture promptly after it obtains actual knowledge that it
has ceased to be such a Citizen of the United States (without
making use of a voting trust, voting powers agreement or similar
arrangement), and has the full corporate power, authority and legal
right under the laws of the State of Connecticut and the United
States pertaining to its banking, trust and fiduciary powers to
execute and deliver each of this Agreement, the Trust Indenture and
each other Operative Document to which it is a party and to carry
out its obligations under this Agreement, the Trust Indenture, each
other Operative Document to which it is a party and to authenticate
the Equipment Notes;
(ii) the execution and delivery by the Indenture Trustee of
the Indenture Trustee Documents and the authentication of the
Equipment Notes and the performance by the Indenture Trustee of its
obligations under the Indenture Trustee Documents 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;
(iii) this Agreement and each of the other Indenture Trustee
Documents 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;
(iv) 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;
(v) there are no Indenture Trustee Liens on the Aircraft or
any portion of the Trust Estate; and
(vi) the Indenture Trustee will furnish to the Note Holders
and the Policy Provider, promptly upon receipt thereof, duplicates
or copies of all reports, notices, requests, demands, certificates
and other instruments furnished to the Indenture Trustee under any
Operative Document to the extent that the same shall not have been
furnished or be required to have been furnished to the Note Holders
and the Policy Provider pursuant to the applicable Operative
Documents.
(k) Owner Participant Transfers. So long as the Aircraft
shall be leased to the Lessee under the Lease, the Owner Participant will
not, directly or indirectly, sell, assign, convey or otherwise transfer any
of its right, title or interest in and to this Agreement, the Trust Estate
or the Trust Agreement or any proceeds therefrom to any Person or entity,
unless (i) the proposed transferee is a "Transferee" (as defined below),
(ii) Lessee shall have (1) received an opinion (in form and substance
reasonably satisfactory to Lessee) of counsel to the Owner Participant (who
shall be reasonably satisfactory to Lessee) to the effect that such
transfer will not result in any risk of loss of tax benefits to, or any
increase in the tax liability of, Lessee and (2) received from the Owner
Participant so seeking to transfer such right, title or interest reasonably
satisfactory indemnification for any loss of tax benefits to, and increase
in the tax liability of, Lessee, and (iii) the Owner Participant sells,
assigns, conveys or otherwise transfers all of its right, title and
interest in and to this Agreement, the Trust Estate, the Trust Agreement
and the proceeds therefrom to a single entity. A "Transferee" shall mean
either (A) a bank or other financial institution with a combined capital,
surplus and undivided profits of at least [$50,000,000] or a corporation
whose tangible net worth is at least [$50,000,000], exclusive of goodwill,
in either case as of the proposed date of such transfer, as determined in
accordance with generally accepted accounting principles, or (B) any
subsidiary of such a bank, financial institution or corporation, provided
that such bank, financial institution or corporation furnishes to the Owner
Trustee, the Indenture Trustee and Lessee a guaranty with respect to the
Owner Participant's obligations under the Operative Documents to which the
Owner Participant is a party in form and substance reasonably satisfactory
to Lessee, the Owner Trustee, and the Indenture Trustee, or (C) is an
affiliate of the Owner Participant and the Owner Participant agrees to
remain liable for all obligations of the Owner Participant under the
Operative Documents; provided, further, that any Transferee shall not be an
airline, a commercial aircraft operator, an air freight forwarder, an
entity engaged in the business of parcel transport by air or other similar
Person or an Affiliate thereof. Each such transfer to a Transferee shall be
subject to the conditions that (S) upon giving effect to such transfer, the
Transferee is a Citizen of the United States (without making use of a
voting trust agreement, voting powers agreement or other similar
arrangement unless approved by Lessee), and has full power and authority to
enter into the transactions contemplated hereby, (T) the Transferee has the
requisite power and authority to enter into and carry out the transactions
contemplated hereby and such Transferee shall have delivered to Lessee, the
Owner Trustee and the Indenture Trustee an opinion of counsel in form and
substance reasonably satisfactory to Lessee and the Owner Trustee as to the
due authorization, delivery, legal, valid and binding effect and
enforceability of the agreement or agreements referred to in the next
clause with respect to the Transferee and any guaranty provided pursuant to
the provisions of this Section 7(k) as to the guarantor, (U) the Transferee
enters into an agreement or agreements, in form and substance reasonably
satisfactory to the Owner Trustee and Lessee, whereby the Transferee
confirms that it shall be deemed a party to this Agreement and a party to
the Trust Agreement and agrees to be bound by all the terms of, and to
undertake all of the obligations of the transferor Owner Participant
contained in, the Owner Participant Documents (to the extent of the
participation so transferred to it) and makes the representations and
warranties made by the Owner Participant thereunder, (V) such transfer does
not affect registration of the Aircraft under the Transportation Code, or
any rules or regulations promulgated thereunder or create a relationship
which would be in violation thereof or violate any provision of the
Securities Act or any other applicable Federal or state law and the Lessee
shall be entitled to require an opinion of counsel to such effect, (W) the
transferor Owner Participant assumes the risk of any adverse tax
consequences with respect to the true lease nature of the transaction
(including, without limitation, loss of depreciation and amortization
deductions and interest deductions resulting from such transfer, (X) the
transferor Owner Participant pays all of the reasonable costs and expenses
(including, without limitation, the reasonable fees and expenses of
counsel) incurred in connection with such transfer, including the
reasonable costs and expenses of the Owner Trustee, the Indenture Trustee,
Lessee and the Loan Participants in connection therewith without the right
of indemnification or reimbursement by Lessee, (Y) the terms of the
Operative Documents and the Transactions shall not be altered and (Z) such
transfer will not give rise to a Default under the Trust Indenture or an
Indenture Event of Default. Upon any such transfer by the Owner Participant
as above provided, the Transferee shall be deemed the Owner Participant for
all purposes hereof and of the other Operative Documents and each reference
herein to the transferor Owner Participant shall thereafter be deemed for
all purposes to be to the Transferee and the transferor Owner Participant
shall be relieved of all obligations of the transferor Owner Participant
under the Owner Participant Documents arising after the date of such
transfer except to the extent fully attributable to or arising out of acts
or events occurring prior thereto and not assumed by the Transferee. If the
Owner Participant intends to transfer any of its interests hereunder, it
shall give thirty (30) days prior written notice thereof to the Indenture
Trustee, the Owner Trustee and Lessee, specifying the name and address of
the proposed Transferee and providing the financial statements of such
proposed Transferee.
(l) Registration Agreement. Lessee shall use commercially
reasonable efforts to avoid a Registration Default.
(m) Compliance with Trust Indenture. First Security Bank,
National Association, and State Street Bank and Trust Company of
Connecticut, National Association, each in its individual capacity, agrees
for the benefit of Lessee to comply with the terms of the Trust Indenture
which it is required to comply with in its individual capacity.
(n) ERISA Matters. The Owner Participant represents and
warrants as of the Delivery Date that either (i) no part of the source of
funds used to acquire and hold its interest in the Trust Estate constitutes
the assets of any "employee benefit plan" as defined in Section 3(3) of
ERISA or of any "plan" within the meaning of Section 4975(e)(1) of the
Code, including, without limitation, as applicable, an insurance company
general account ("Plan Assets") or (ii) the source of funds used to acquire
and hold its interest in the Trust Estate is an insurance company general
account (within the meaning of United States Department of Labor Prohibited
Transaction Class Exemption ("PTCE") 95-60 (issued July 12, 1995)), and as
of the date hereof and at all times while it holds such interest (x) less
than 25% of the assets of such general account do and will constitute Plan
Assets and (y) the amount of reserves and liabilities (as defined in the
annual statement for life insurance companies approved by the National
Association of Insurance Commissioners ("NAIC Annual Statement") (the
"Reserves and Liabilities")) for the general account contract(s) held by or
on behalf of any employee benefit plan subject to Title I of ERISA or any
plan subject to Section 4975 of the Code (an "ERISA Plan"), together with
the amount of the Reserves and Liabilities for the general account
contract(s) held by or on behalf of any other ERISA Plans maintained by the
same employer (or any "affiliate" thereof within the meaning of Section
V(a)(1) of PTCE 95-60) or by the same employee organization, do not and
will not exceed 10% of the total Reserves and Liabilities of such general
account (exclusive of separate account liabilities) plus surplus, as set
forth in the NAIC Annual Statement filed with the state of domicile of the
insurance company maintaining such general account (the conditions of this
clause (y) shall be referred to as the "Reserves and Liabilities
Conditions"). Each Loan Participant agrees that it will not transfer any
Equipment Note (or any part thereof) to any entity (except pursuant to
Section 2.14 of the Trust Indenture) unless such entity either (i) makes a
representation and warranty as of the date of transfer that no part of the
funds to be used by it for the purchase and holding of such Equipment Note
(or any part thereof) constitutes Plan Assets or that such purchase and
holding will not constitute or result in a non-exempt prohibited
transaction (as defined in Section 4975 of the Code and ERISA), provided,
that Equipment Notes may be transferred to a Pass Through Trustee in
connection with an offering of Pass Through Certificates by the related
Pass Through Trust if, as a condition of such offering, each Person or
entity acquiring such Pass Through Certificates makes (or is deemed to
make) the foregoing representation and warranty with respect to its
purchase and holding of such Pass Through Certificates. The Owner
Participant agrees that it will not transfer any of its right, title or
interest in and to this Agreement, the Trust Estate or the Trust Agreement
or any proceeds therefrom to any entity unless such entity makes (or is
deemed to have made) a representation and warranty as of the date of
transfer that either (i) no part of the funds to be used by it for the
purchase and holding of such right, title, interest and proceeds (or any
part thereof) constitutes Plan Assets or (ii) it is an insurance company
general account that represents, warrants and covenants both as of the date
it acquires such right, title, interest and proceeds and at all times while
it holds such right, title, interest and proceeds that (x) less than 25% of
the assets of such general account will constitute Plan Assets and (y) the
Reserves and Liabilities Conditions will be satisfied, such that such
transfer will not constitute or result in a non-exempt prohibited
transaction (as defined in Section 4975 of the Code and ERISA). The Pass
Through Trustee agrees that it will not agree to any amendment,
modification or waiver of Section 1.01(e)(1) of the initial supplement to
each Pass Through Trust Agreement without the prior written consent of the
Owner Participant.
(o) Confidentiality of Purchase Agreement. Each Participant,
the Owner Trustee and the Indenture Trustee agrees for the benefit of the
Manufacturer and Lessee that it will not disclose or suffer to be disclosed
the terms of the Purchase Agreement to any third party except (A) as may be
required by any applicable statute, court or administrative order or decree
or governmental ruling or regulation or to any regulatory authorities
having official jurisdiction over them, (B) in connection with the
financing of the Aircraft and the other transactions contemplated by the
Operative Documents (including any transfer of Equipment Notes (including
by way of participation or assignment of an interest, provided such
participant or assignee agrees to hold such terms confidential to the same
extent as herein provided) or the Owner Participant's beneficial interest
in the Trust Estate and any exercise of remedies under the Lease and the
Trust Indenture), (C) with the prior written consent of the Manufacturer
and Lessee, (D) to the Owner Trustee's, the Indenture Trustee's and each
Participant's counsel or special counsel, independent insurance brokers or
other agents who agree to hold such information confidential, or (E) in the
case of the Owner Participant and/or the Owner Trustee, it may disclose so
much of the Purchase Agreement as has been assigned to the Owner Trustee
under the Purchase Agreement Assignment to bona fide potential purchasers
of the Aircraft.
(p) Margin Regulations. The Owner Trustee and the Owner
Participant severally, not jointly, represent and warrant, as of the
Delivery Date that none of the funds made available by the Pass Through
Trustee pursuant to Section 2 hereof will be used for the purpose of
purchasing or carrying any "margin security" as defined in Regulation U of
the Board of Governors of the Federal Reserve System or for the purpose of
reducing or retiring any indebtedness which was originally incurred to
purchase or carry such margin security or for any other purpose which might
cause the transaction contemplated by this Agreement to constitute a
"purpose credit" within the meaning of Regulation X of the Board of
Governors of the Federal Reserve System, assuming that the proceeds were
and are applied as contemplated by the provisions of this Agreement.
(q) Loan Participant Liens. Each Loan Participant covenants
and agrees that it shall not cause or permit to exist a Loan Participant
Lien attributable to it with respect to the Aircraft or any other portion
of the Trust Estate. Each Loan Participant agrees that it will promptly, at
its own expense, take such other action as may be necessary duly to
discharge such Loan Participant Lien attributable to it. Each Loan
Participant agrees to make restitution to the Trust Estate for any actual
diminution of the assets of the Trust Estate resulting from such Loan
Participant Lien attributable to it.
(r) Indenture Trustee Liens. State Street Bank and Trust
Company of Connecticut, National Association, in its individual capacity,
covenants and agrees that it shall not cause or permit to exist any
Indenture Trustee's Liens with respect to the Trust Indenture Estate or the
Trust Estate. State Street Bank and Trust Company of Connecticut, National
Association, in its individual capacity, agrees that it will promptly, at
its own expense, take such action as may be necessary duly to discharge
such Indenture Trustee's Liens. State Street Bank and Trust Company of
Connecticut, National Association, in its individual capacity, agrees to
make restitution to the Trust Estate for any actual diminution of the
assets of the Trust Indenture Estate or the Trust Estate resulting from
such Indenture Trustee's Liens.
(s) Representations and Warranties of Owner Trustee. The
Owner Trustee, in its individual capacity (except as provided in clauses
(iii) and (vii) below) and (but only as provided in clauses (iii) and (vii)
and, to the extent that it relates to the Owner Trustee, clauses (ii), (ix)
and (xi) below) as Owner Trustee, represents and warrants to Lessee, the
Pass Through Trustee, the Subordination Agent, the Liquidity Provider, the
Policy Provider and the Owner Participant as follows:
(i) the Owner Trustee, in its individual capacity, is a
national banking association duly organized and validly existing in
good standing under the laws of the United States, has full
corporate power and authority to carry on its business as now
conducted, has the corporate power and authority to execute and
deliver the Trust Agreement, has the corporate power and authority
to carry out the terms of the Trust Agreement, and has (assuming
the authorization, execution and delivery of the Trust Agreement by
the Owner Participant), as Owner Trustee, and to the extent
expressly provided herein or therein, in its individual capacity,
the corporate power and authority to execute and deliver and to
carry out the terms of this Agreement, the Trust Indenture, the
Equipment Notes, the Lease and each other Operative Document (other
than the Trust Agreement) to which it is a party;
(ii) the Owner Trustee in its trust capacity and, to the
extent expressly provided herein, in its individual capacity, has
duly authorized, executed and delivered this Agreement, in its
individual capacity, has duly authorized, executed and delivered
the Trust Agreement and in its trust capacity, except as expressly
provided therein, has duly authorized, executed and delivered (or,
in the case of Owner Trustee Documents to be executed on the
Delivery Date, will on the Delivery Date, execute and deliver) the
other Owner Trustee Documents and (assuming the due authorization,
execution and delivery of the Trust Agreement by the Owner
Participant) this Agreement and each of the other Owner Trustee
Documents constitutes (or, in the case of documents to be executed
and delivered on the Delivery Date, upon execution and delivery
will constitute) the legal, valid and binding obligations of the
Owner Trustee, in its individual capacity or as Owner Trustee, as
the case may be, enforceable against it in its individual capacity
or as Owner Trustee, as the case may be, 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;
(iii) assuming the due authorization, execution and delivery
of the Trust Agreement by the Owner Participant, the Owner Trustee
has duly authorized, and on the Closing 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 Trust Indenture, and each Equipment
Note on the Closing Date will constitute the valid and binding
obligation of the Owner Trustee and will be entitled to the
benefits and security afforded by the Trust Indenture in accordance
with the terms of such Equipment Note and the Trust Indenture;
(iv) neither the execution and delivery by the Owner
Trustee, in its individual capacity or as Owner Trustee, as the
case may be, of any Owner Trustee Document, nor the consummation by
the Owner Trustee, in its individual capacity or as Owner Trustee,
as the case may be, of any of the transactions contemplated
thereby, nor the compliance by the Owner Trustee, in its individual
capacity or as Owner Trustee, as the case may be, with any of the
terms and provisions 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 United States of
America or the State of Utah governing the trust powers of the
Owner Trustee, or any judgment or order applicable to or binding on
it;
(v) no consent, approval, order or authorization of, giving
of notice to, or registration with, or taking of any other action
in respect of, any Utah state or local governmental authority or
agency or any United States Federal governmental authority or
agency regulating the trust powers of the Owner Trustee in its
individual capacity is required for the execution and delivery of,
or the carrying out by, the Owner Trustee, in its individual
capacity or as Owner Trustee, as the case may be, of any of the
transactions contemplated hereby or by the Trust Agreement, the
Participation Agreement, the Trust Indenture, the Lease or the
Equipment Notes, or any other Operative Document to which it is or
will be a party or by which it is or will be 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 7(s)(iv);
(vi) there exists no Lessor Lien attributable to the Owner
Trustee, in its individual capacity;
(vii) there exists no Lessor Lien attributable to the Owner
Trustee, as lessor under the Lease;
(viii) there are no Taxes payable by the Owner Trustee,
either in its individual capacity or as Owner Trustee, imposed by
the State of Utah or any political subdivision thereof in
connection with the issuance of the Equipment Notes, or the
execution and delivery in its individual capacity or as Owner
Trustee, as the case may be, of any of the instruments referred to
in clauses (i), (ii), (iii) and (iv) above, that, in each case,
would not have been imposed if the Trust Estate were not located in
the State of Utah and First Security Bank, National Association 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 Utah;
(ix) 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 (i), (ii), (iii) and (iv) above;
(x) both its chief executive office, and the place where its
records concerning the Aircraft and all its interests in, to and
under all documents relating to the Trust Estate, are located in
Salt Lake City, Utah;
(xi) the Owner Trustee has not, in its individual capacity
or as Owner Trustee, directly or indirectly offered any Equipment
Note or Pass Through Certificate or any interest in or 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, anyone other
than the Pass Through Trustee and the Owner Participant; and the
Owner Trustee has not authorized anyone to act on its behalf (it
being understood that in arranging and proposing the refinancing
contemplated hereby and agreed to herein by the Owner Trustee, the
Lessee has not acted as agent of the Owner Trustee) to offer
directly or indirectly any Equipment Note, any Pass Through
Certificate or any interest in and to the Trust Estate, the Trust
Agreement or any similar interest for sale to, or to solicit any
offer to acquire any of the same from, any Person;
(xii) it is a Citizen of the United States (without making
use of a voting trust agreement, voting powers agreement or similar
arrangements);
(xiii) there has not occurred any event which constitutes
(or, to the best of its knowledge would, with the passing of time
or the giving of notice or both, constitute) an Indenture Event of
Default which has been caused by or relates to the Owner Trustee,
in its individual capacity, and which is presently continuing; and
(xiv) on the Delivery Date the Owner Trustee shall have
received whatever title to the Aircraft as was conveyed to it by
Lessee.
(t) Owner Participant Obligations on Lease Termination. The
Owner Participant covenants and agrees that if (i) Lessee has elected
pursuant to Section 9(a)(i) of the Lease to terminate the Lease by causing
the Aircraft to be sold pursuant to Section 9(b) of the Lease and (ii) the
Owner Trustee has, pursuant to Section 9(b) of the Lease, given to Lessee
written notice of Lessor's election to retain title to the Aircraft and
(iii) the Owner Trustee has failed to make, on or before the Termination
Date, any payment required to be made by the Owner Trustee pursuant to
Section 9(b) of the Lease in connection with its retention of title to the
Aircraft, the Owner Participant will indemnify Lessee for any losses,
damages, costs or expenses of any kind (including any additional rents paid
by Lessee and any fees and expenses of lawyers, appraisers, brokers or
accountants) incurred as a consequence of such failure by the Owner
Trustee.
(u) Transfer of Title; Assumption of Equipment Notes. Each
of the Owner Participant, the Owner Trustee, the Indenture Trustee and
Lessee covenants and agrees that if Lessee elects (A) to purchase the
Aircraft pursuant to Section 19(b) or Section 20 of the Lease or (B) to
terminate the Lease and purchase the Aircraft pursuant to Section 19(c) of
the Lease, then each of the parties will execute and deliver appropriate
documentation transferring all right, title and interest in the Aircraft to
Lessee (including, without limitation, such bills of sale and other
instruments and documents as Lessee shall reasonably request to evidence
(on the public record or otherwise) such transfer and the vesting of all
right, title and interest in and to the Aircraft in Lessee), and if Lessee,
in connection with such purchase, elects to assume the obligations of the
Owner Trustee pursuant to the Trust Indenture and the Equipment Notes each
of the parties will execute and deliver appropriate documentation
permitting Lessee to assume such obligations on the basis of full recourse
to Lessee, maintaining the security interest in the Aircraft created by the
Trust Indenture, releasing the Owner Participant and the Owner Trustee from
all future obligations in respect of the Equipment Notes, the Trust
Indenture and all other Operative Documents and all such other actions as
are reasonably necessary to permit such assumption by Lessee.
Notwithstanding the provisions of this Section 7(u), unless waived by the
Loan Participants, Lessee shall not be entitled to assume the Equipment
Notes on the date for purchase of the Aircraft pursuant to Section 19(c) or
20 of the Lease if on such date a Specified Default or Lease Event of
Default shall have occurred and be continuing.
Notwithstanding the foregoing, Lessee shall not be entitled
to assume the obligations of the Owner Trustee in respect of the Equipment
Notes unless Lessee causes to be delivered to the Indenture Trustee an
opinion of counsel to the effect that (i) the Lien of the Trust Indenture
continues to be a valid and duly perfected first priority security interest
in and to the Aircraft, (ii) the Indenture Trustee will be entitled to the
benefits of 11 U.S.C. Section 1110; provided that the opinion required by
subclause (ii) need only be given if immediately prior to such assumption
the Owner Trustee would have been entitled to the benefits of 11 U.S.C.
Section 1110 and (iii) the Pass Through Trusts will not be subject to
Federal income taxation and the Note Holders will not recognize income,
gain or loss for Federal income tax purposes as a result of such assumption
and will be subject to taxation in the same amounts, in the same manner,
and at the same times as would have been the case if such assumption had
not occurred.
(v) Lessee Merger Covenant. Lessee will not consolidate with
or merge into any other corporation or convey, transfer or lease
substantially all of its assets as an entirety to any Person unless:
(i) the corporation formed by such consolidation or into
which Lessee is merged or the Person which acquires by conveyance,
transfer or lease substantially all of the assets of Lessee as an
entirety shall be (i) organized and validly existing under the laws
of the United States of America or any state thereof or the
District of Columbia, (ii) a Citizen of the United States and (iii)
a Certificated Air Carrier, if and so long as such status is a
condition of entitlement to the benefits of Section 1110 of the
Bankruptcy Code with respect to the Lease or the Aircraft;
(ii) the corporation formed by such consolidation or into
which Lessee is merged or the Person which acquires by conveyance,
transfer or lease substantially all of the assets of Lessee as an
entirety shall execute and deliver to the Owner Trustee, the
Indenture Trustee and the Owner Participant an agreement in form
and substance reasonably satisfactory to the Owner Participant a
duly authorized, valid, binding and enforceable agreement
containing an assumption by such successor corporation or Person of
the due and punctual performance and observance of each covenant
and condition of the Operative Documents to which Lessee is a party
to be performed or observed by Lessee;
(iii) immediately after giving effect to such transaction,
no Lease Event of Default shall have occurred and be continuing;
and
(iv) Lessee shall have delivered to the Owner Trustee, the
Indenture Trustee and the Owner Participant a certificate signed by
the President, any Executive Vice President, any Senior Vice
President or any Vice President and by the Secretary or an
Assistant Secretary of Lessee, and an opinion of counsel (which may
be Lessee's General Counsel, Deputy General Counsel, Associate
General Counsel or Assistant General Counsel) reasonably
satisfactory to the Owner Participant, each to the effect that such
consolidation, merger, conveyance, transfer or lease and the
assumption agreement mentioned in clause (ii) above comply with
this Section 7(v) and that all conditions precedent herein provided
for relating to such transaction have been complied with.
Upon any such consolidation or merger or any such
conveyance, transfer or lease of substantially all of the assets of Lessee
as an entirety in accordance with this Section 7(v), the successor
corporation or Person formed by such consolidation or into which Lessee is
merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of,
Lessee under this Agreement with the same effect as if such successor
corporation or Person had been named as Lessee herein. No such conveyance,
transfer or lease of substantially all of the assets of Lessee as an
entirety shall have the effect of releasing Lessee or any successor
corporation or Person which shall theretofore have become such in the
manner prescribed in this Section 7(v) from its liability in respect of any
Operative Document to which it is a party.
(w) Further Assurances. Lessee, at its expense, will take,
or cause to be taken, such action with respect to the recording, filing,
re-recording and refiling of the Lease, the Lease Supplement, the Trust
Agreement, the Trust Indenture, the Trust Supplement and any financing
statements or other instruments as are necessary to maintain, so long as
the Trust Indenture or the Lease is in effect, the perfection of the
security interests created by the Trust Indenture and any security interest
that may be claimed to have been created by the Lease and the ownership
interest of the Owner Trustee in the Aircraft or will furnish to the Owner
Trustee, the Owner Participant and the Indenture Trustee timely notice of
the necessity of such action, together with such instruments, in execution
form, and such other information as may be required to enable them to take
such action. Lessee will notify the Owner Trustee, the Owner Participant
and the Indenture Trustee of any change in the location of its chief
executive office (as such term is used in Article 9 of the Uniform
Commercial Code) promptly after making such change or in any event within
the period of time necessary under applicable law to prevent the lapse of
perfection (absent refiling) of financing statements filed under the
Operative Documents.
(x) Rent Adjustments. Section 3 of the Lease contemplates
that, under certain circumstances, the Owner Participant will make certain
recalculations of Basic Rent, EBO Amount and Termination Value, and the
Owner Participant hereby agrees to make such recalculations as and when
contemplated by the Lease and subject to all the terms and conditions of
the Lease and promptly to take such further actions as may be necessary or
desirable to give effect to and to cause the Owner Trustee to give effect
to the provisions of Section 3 of the Lease.
(y) Owner Participant Costs on Return. The Owner Participant
hereby agrees with Lessee that it will pay, or cause to be paid, all costs
and expenses that are for the account of the Owner Trustee pursuant to
Section 5 of the Lease without the right of reimbursement or
indemnification from Lessee.
(z) Transfer of Equipment Notes. Each Loan Participant
hereby represents, warrants and agrees that it shall not transfer any
interest in any Equipment Note unless and until the transferee agrees in
writing (copies of which shall be provided by the Indenture Trustee to
Lessee, the Owner Trustee and the Owner Participant) to make the
representations contemplated to be made by a Loan Participant in this
Agreement and to be bound by the terms of this Agreement and the Trust
Indenture (including, without limitation, the representations and covenants
set forth in Sections 7(c), 7(h), 7(n) and 7(q) hereof and this Section
7(z) and Sections 2.03, 2.14 and 4.03 of the Trust Indenture).
(aa) Representations and Warranties of Pass Through Trustee.
The Pass Through Trustee represents and warrants to Lessee, the Indenture
Trustee, the Subordination Agent, the Liquidity Provider, the Policy
Provider, the Owner Participant and the Owner Trustee, in its capacity as
such and in its individual capacity, as follows:
(i) the Pass Through Trustee is a national banking
association duly organized, validly existing and in good standing
under the laws of the United States and has the full corporate
power, authority and legal right under the laws of the State of
Connecticut and the United States 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 the Pass Through
Trust Agreements, the Intercreditor Agreement and this Agreement;
(ii) this Agreement, each of the Pass Through Trust
Agreements and the Intercreditor Agreement have been duly
authorized, executed and delivered by the Pass Through Trustee;
this Agreement, each of the Pass Through Trust Agreements and the
Intercreditor Agreement 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;
(iii) 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 Pass Through 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;
(iv) 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 Connecticut governmental authority or
agency or any Federal governmental authority or agency regulating
the Pass Through Trustee's banking, trust or fiduciary powers;
(v) 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 there are no
Taxes payable by the Pass Through Trustee imposed by the State of
Connecticut or any political subdivision 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, assuming that the trusts created by
the Pass Through Trust Agreements will not be taxable as
corporations, but rather, each will be characterized either as a
grantor trust under subpart E, Part I, of Subchapter J of the Code
or as a partnership, such trusts will not be subject to any Taxes
imposed by the State of Connecticut or any political subdivision
thereof;
(vi) 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;
(vii) except for the issue and sale of the Pass Through
Certificates contemplated hereby, the Pass Through Trustee has not
directly or indirectly offered any Equipment Note 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
Note for sale to any Person, or to solicit any offer to acquire any
Equipment Note from any Person; and the Pass Through Trustee is not
in default under any Pass Through Trust Agreement; and
(viii) the Pass Through Trustee is not directly or
indirectly controlling, controlled by or under common control with
the Owner Participant, the Owner Trustee or Lessee.
(bb) Representations and Warranties of Subordination Agent.
The Subordination Agent represents and warrants to Lessee, the Indenture
Trustee, the Pass Through Trustee, the Liquidity Provider, the Policy
Provider, the Owner Participant and the Owner Trustee, in its capacity as
such and in its individual capacity, as follows:
(i) the Subordination Agent is a national banking
association duly organized, validly existing and in good standing
under the laws of the United States, and has the full corporate
power, authority and legal right under the laws of the State of
Connecticut and the United States pertaining to its banking, trust
and fiduciary powers to execute and deliver this Agreement, the
Liquidity Facilities, the Policy Provider Agreement and the
Intercreditor Agreement and to perform its obligations under this
Agreement, the Liquidity Facilities, the Policy Provider Agreement
and the Intercreditor Agreement;
(ii) this Agreement, each of the Liquidity Facilities, the
Policy Provider Agreement and the Intercreditor Agreement have been
duly authorized, executed and delivered by the Subordination Agent;
this Agreement, each of the Liquidity Facilities, the Policy
Provider Agreement and the Intercreditor Agreement 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;
(iii) none of the execution, delivery and performance by the
Subordination Agent of each of the Liquidity Facilities, the Policy
Provider Agreement, the Intercreditor Agreement or 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;
(iv) neither the execution and delivery by the Subordination
Agent of any of the Liquidity Facilities, the Policy Provider
Agreement, 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 Connecticut governmental
authority or agency or any Federal governmental authority or agency
regulating the Subordination Agent's banking, trust or fiduciary
powers;
(v) 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, the Policy Provider Agreement 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, the
Policy Provider Agreement or any of the Liquidity Facilities), 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 (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, the Policy Provider Agreement or any of
the Liquidity Facilities);
(vi) there are no pending or threatened actions or
proceedings against the Subordination Agent 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 Subordination Agent to perform its obligations under
this Agreement, the Intercreditor Agreement, the Policy Provider
Agreement or any Liquidity Facility;
(vii) 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 Notes 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
[Policy Provider Agreement or] Liquidity Facility;
(viii) the Subordination Agent is not directly or indirectly
controlling, controlled by or under common control with the Owner
Participant, the Owner Trustee or Lessee; and
(ix) [Certain Other Covenants of the Owner Participant and
the Indenture Trustee. The Owner Participant hereby unconditionally
agrees with Lessee, and only with Lessee (and not with any other
party to this Participation Agreement), that on behalf of the Owner
Trustee it will make available to the Indenture Trustee funds
sufficient to pay the Indenture Trustee the amounts (the "Deferred
Equity Amounts") set forth on the dates (the "Deferred Equity
Dates") set forth in Schedule IV attached hereto; provided, that
the Owner Participant shall not be obligated to make such funds
available if an event specified in Section 14(e), (f) or (g) of the
Lease which either does, or with the giving of notice or passage of
time, or both, would constitute an Event of Default or Lease Event
of Default shall have occurred and be continuing on the date on
which such funds are to be made available. The Owner Participant
and the Owner Trustee hereby direct the Indenture Trustee, and the
Indenture Trustee hereby agrees, to apply any such payment of
Deferred Equity Amounts to the payment of principal and interest on
the Equipment Notes, as appropriate, which may be due and payable
pursuant to the provisions of the Trust Indenture on such Deferred
Equity Date. The Owner Participant agrees to make any such payment
of Deferred Equity Amounts in immediately available funds on or
before 11:00 a.m. New York City time, on the Deferred Equity Date.
The Owner Participant agrees to give Lessee notice by 11:00 a.m.,
New York City time, on the Deferred Equity Date if it has failed to
make the payment of the Deferred Equity Amount due on such date.
The Indenture Trustee agrees to give Lessee notice by 12:00 noon,
New York City time, on the Deferred Equity Date if it has failed to
receive the payment of the Deferred Equity Amount due on such date.
In the event the Owner Participant fails to make such payment,
Lessee shall make the Advance under Section 3(h) of the Lease and
the Owner Participant shall cause Lessor to comply with all of its
obligations under said Section 3(h). The Owner Participant agrees
to repay the amount of any Advance made pursuant to Section 3(h) of
the Lease forthwith following the making thereof together with
interest at a rate per annum equal to the Base Rate plus 2%
commencing on the date of such Advances to the date of repayment
and agrees that its obligation shall be a full recourse obligation
of the Owner Participant. All amounts paid to the Lessee by the
Owner Participant in respect of an Advance or deducted by the
Lessee pursuant to Section 3(h) of the Lease shall be applied first
to payment to Lessee of interest and then to payment to Lessee of
amounts equal to the Advance.](3)
--------
3 For deferred equity transactions only.
SECTION 8. RELIANCE OF LIQUIDITY PROVIDER AND POLICY PROVIDER. Each
of the parties hereto agrees and acknowledges that the Liquidity Provider
and the Policy Provider shall each be third party beneficiaries of each of
the representations, warranties and covenants made herein by such party,
and that each of the Liquidity Provider and the Policy Provider may rely on
such representations and warranties to the same extent as if such
representations and warranties were made to each of the Liquidity Provider
and the Policy Provider directly. Lessee agrees and acknowledges that each
of the Liquidity Provider and the Policy Provider shall be third party
beneficiaries of the indemnities contained in Section 6(c) hereof, and each
of the Liquidity Provider and Policy Provider may rely on such indemnities
to the same extent as if such indemnities were made to each of the
Liquidity Provider and Policy Provider directly.
SECTION 9. OTHER DOCUMENTS. Each of the Owner Participant and the
Owner Trustee hereby (a) agrees with Lessee and the Loan Participants to
comply with all of the terms of the Trust Agreement (as the same may
hereafter be amended or supplemented from time to time in accordance with
the terms thereof) applicable to it; (b) agrees with Lessee and the
Indenture Trustee not to amend, supplement or otherwise modify any
provision of the Trust Agreement in a manner adversely affecting such party
without the prior written consent of such party; and (c) agrees with Lessee
and the Loan Participants not to revoke the Trust Agreement without the
prior written consent of Lessee and the Indenture Trustee. Notwithstanding
the foregoing, so long as the Lease has not been terminated, the
Subordination Agent, the Pass Through Trustee, the Indenture Trustee, the
Owner Participant and the Owner Trustee hereby agree for the benefit of
Lessee that without the consent of Lessee they will not amend, modify or
supplement the definition of "Secured Obligations" or Articles II, III, IX
or Section 5.02 of the Trust Indenture. Furthermore, so long as the Lease
has not been terminated, the Pass Through Trustee, the Subordination Agent,
the Indenture Trustee, the Owner Participant and the Owner Trustee hereby
agree for the benefit of Lessee that without Lessee's consent, each such
party will not amend any other provision of any Operative Document or Pass
Through Document in a manner adversely affecting Lessee. Each of the Owner
Participant, the Indenture Trustee, the Subordination Agent, the Pass
Through Trustee and the Owner Trustee agree to promptly furnish to Lessee
copies of any supplement, amendment, waiver or modification of any of the
Operative Documents or Pass Through Documents to which Lessee is not a
party. Each Loan Participant agrees that it will not take any action in
respect of the Trust Indenture Estate except through the Indenture Trustee
pursuant to the Trust Indenture or as otherwise permitted by the Trust
Indenture.
SECTION 10. CERTAIN COVENANTS OF LESSEE. Lessee covenants and
agrees with each of the Loan Participants, the Owner Participant, the
Indenture Trustee and the Owner Trustee, as follows:
(a) Further Assurances. Lessee will cause to be done,
executed, acknowledged and delivered all and every such further acts,
conveyances and assurances as the Owner Trustee, the Indenture Trustee or
the Owner Participant shall reasonably require for accomplishing the
purposes of this Agreement and the other Operative Documents; provided that
any instrument or other document so executed by Lessee will not expand any
obligations or limit any rights of Lessee in respect of the transactions
contemplated by any Operative Documents. Lessee, forthwith upon delivery of
the Aircraft under the Lease, shall cause the Aircraft to be duly
registered, and at all times thereafter to remain duly registered, in the
name of the Owner Trustee, except as otherwise required or permitted
hereunder or under the Lease, under the Transportation Code, or shall
furnish to the Owner Trustee such information as may be required to enable
the Owner Trustee to make application for such registration (at the expense
of Lessee), and shall promptly furnish to the Owner Trustee such
information as may be required to enable the Owner Trustee to timely file
any reports required to be filed by it as the lessor under the Lease or as
the owner of the Aircraft with any governmental authority (including tax
authorities).
(b) Filings. Lessee, at its expense, will cause the Lease,
all Lease Supplements, all amendments to the Lease, the Trust Indenture,
all supplements and amendments to the Trust Indenture and this Agreement to
be promptly filed and recorded, or filed for recording, to the extent
permitted under the Transportation Code, or required under any other
applicable law. Upon the execution and delivery of the FAA ▇▇▇▇ of Sale,
the Lease, the Lease Supplement covering the Aircraft, the Trust Supplement
and the Trust Indenture shall be filed for recording with the Federal
Aviation Administration in the following order of priority; First, the FAA
▇▇▇▇ of Sale, Second, the Lease, with the Lease Supplement covering the
Aircraft, the Trust Indenture and the Trust Supplement attached, and Third,
the Trust Indenture, with the Trust Supplement attached.
SECTION 11. OWNER FOR FEDERAL TAX PURPOSES. It is the intent of the
parties to this Agreement that the Lease be treated as a true lease, the
Owner Participant be treated as the owner of the Aircraft to be delivered
under the Lease, and Lessee be treated as the lessee thereof for Federal
income tax purposes.
SECTION 12. NOTICES; CONSENT TO JURISDICTION.
(a) Notices. All notices, demands, instructions and other
communications required or permitted to be given to or made upon any party
hereto shall be in writing and shall be personally delivered or sent by
registered or certified mail, postage prepaid, or by telecopier, or by
prepaid courier service, and shall be deemed to be given for purposes of
this Agreement on the day that such writing is delivered to the recipient
thereof in accordance with the provisions of this Section 12(a). Unless
otherwise specified in a notice sent or delivered in accordance with the
foregoing provisions of this Section 12(a), notices, demands, instructions
and other communications in writing shall be given to or made upon the
respective parties hereto at their respective addresses (or to their
respective telecopier numbers) as follows: (A) if to Lessee, the Owner
Trustee, the Pass Through Trustee, the Subordination Agent, the Indenture
Trustee or the Owner Participant, to the respective addresses set forth on
Schedule I hereto, or (B) if to a subsequent Owner Participant, addressed
to such subsequent Owner Participant at such address as such subsequent
Owner Participant shall have furnished by notice to the parties hereto, or
(C) if to any subsequent Note Holder, addressed to such Note Holder at its
address set forth in the Equipment Note register maintained pursuant to
Section 2.07 of the Trust Indenture.
(b) Consent to Jurisdiction. Each of the parties hereto (A)
hereby irrevocably submits itself to the non-exclusive jurisdiction of the
United States District Court for the Southern District of New York and to
the non-exclusive jurisdiction of the Supreme Court of the State of New
York, New York County, for the purposes of any suit, action or other
proceeding arising out of this Agreement, the Lease, the Tax Indemnity
Agreement or any other Operative Document, the subject matter of any
thereof or any of the transactions contemplated hereby or thereby brought
by any party or parties thereto, or their successors or assigns and (B)
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, 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, the Tax Indemnity Agreement or
any other Operative Document or the subject matter of any thereof or any of
the transactions contemplated hereby or thereby may not be enforced in or
by such courts; provided, however that the foregoing shall not apply to the
right any party may have to seek removal of such suit, action or proceeding
to federal court or to seek consolidation of any separate actions, suits or
proceedings brought by one or more of the other parties in the same or
different jurisdictions. The agreement set forth in this Section 12(b) is
given solely for the benefit of the parties hereto and shall not inure to
the benefit of any other Person.
SECTION 13. CHANGE OF SITUS OF OWNER TRUST. The Owner Participant
agrees that if, at any time, the Trust Estate becomes subject to any Taxes
for which it is indemnified pursuant to Section 6(b) hereof and if, as a
consequence thereof, Lessee should request that the situs of the trust be
moved to another state in the United States from the state in which it is
then located, the situs of the trust may be moved and the Owner Participant
will take whatever action may be reasonably necessary to accomplish such
removal; provided that (A) Lessee shall provide such additional tax
indemnification as the Owner Participant and the Indenture Trustee may
reasonably request, (B) the rights and obligations under the Operative
Documents of the Owner Participant and the Indenture Trustee shall not be
altered as a result of the taking of such action, (C) the lien of the Trust
Indenture on the Trust Indenture Estate shall not be adversely affected by
such action and (D) the Owner Participant and the Indenture Trustee shall
have received an opinion or opinions of counsel (reasonably satisfactory to
the Owner Participant), in scope, form and substance satisfactory to the
Owner Participant to the effect that (I) the trust, as thus removed, shall
remain a validly established trust, (II) any amendments to the Trust
Agreement necessitated by such removal shall have been duly authorized,
executed and delivered by the parties thereto and shall constitute the
valid and binding obligations of such parties, enforceable in accordance
with their terms, (III) such removal will not result in the imposition of,
or increase in the amount of, any Tax for which Lessee is not required to
indemnify the Owner Participant, the Indenture Trustee, the Owner Trustee
or the Trust Estate pursuant to Section 6(b) hereof (taking into account
any additional indemnification provided by Lessee pursuant to clause (A) of
this sentence) and (IV) if such removal involves the replacement of the
Owner Trustee, an opinion of counsel to such successor Owner Trustee in
form and substance reasonably satisfactory to the Owner Participant
covering the matters described in the opinion delivered pursuant to Section
4(a)(xiii) and such other matters as the Owner Participant may reasonably
request and (E) Lessee shall indemnify and hold harmless the Owner
Participant and the Indenture Trustee on a net after-tax basis against any
and all reasonable and actual costs and expenses including reasonable
counsel fees and disbursements, registration fees, recording or filing fees
and taxes incurred by the Owner Trustee, the Owner Participant and the
Indenture Trustee in connection with such change of situs. Notwithstanding
anything to the contrary contained herein or in any other Operative
Document, the Owner Participant agrees with Lessee that it will not consent
to or direct a change in the situs of the Trust Estate without the prior
consent of Lessee unless the Owner Trustee, the Indenture Trustee, the Note
Holders and the Trust Estate each waives its right to any indemnity payable
by the Lessee under Section 6(b) as a result of the change in situs.
SECTION 14. MISCELLANEOUS.
(a) Consents Under Lease. The Owner Participant covenants
and agrees that it shall not unreasonably withhold its consent to any
consent requested of the Owner Trustee, as Lessor, under the terms of the
Lease which by its terms is not to be unreasonably withheld by the Owner
Trustee, as Lessor.
(b) Survival. The representations, warranties, indemnities
and agreements of Lessee, the Owner Trustee, the Indenture Trustee, the
Subordination Agent, the Pass Through Trustee and the Owner Participant
provided for in this Agreement or any other Operative Document, and
Lessee's, the Owner Trustee's, the Indenture Trustee's, the Subordination
Agent's, the Pass Through Trustee's and the Owner Participant's obligations
under any and all thereof, shall survive the making available of the
respective Commitments by the Pass Through Trustee and the Owner
Participant, the delivery or return of the Aircraft, the transfer of any
interest of the Owner Participant in the Trust Estate or the Aircraft or
any Engine or the transfer of any interest by any Loan Participant in any
Equipment Note or the Trust Indenture Estate and the expiration or other
termination of this Agreement or any other Operative Document.
(c) Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
(d) Amendments and Waivers. Neither this Agreement nor any
of the terms hereof may be terminated, amended, supplemented, waived or
modified, except by an instrument in writing signed by the party against
which the enforcement of the termination, amendment, supplement, waiver or
modification is sought; and no such termination, amendment, supplement,
waiver or modification shall be effective unless a signed copy thereof
shall have been delivered to the Indenture Trustee and the Owner Trustee.
(e) Successors and Assigns. The terms of this Agreement
shall be binding upon, and inure to the benefit of, Lessee and, subject to
the terms of this Agreement, 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 Owner Participant and, subject to the terms of this
Agreement, its successors and permitted assigns, each Note Holder and its
successors and registered assigns, the Indenture Trustee and its successors
as Indenture Trustee under the Trust Indenture and the Owner Trustee and
its successors as Owner Trustee under the Trust Agreement. The terms of
this Agreement shall inure to the benefit of the Liquidity Provider and
Policy Provider, and each of their successors and permitted assigns.
(f) 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.
(g) Trust Capacity. The parties hereto agree that all of the
statements, representations, covenants and agreements made by the Owner
Trustee (when made in such capacity) contained in this Agreement and any
agreement referred to herein other than the Trust Agreement, unless
expressly otherwise stated, are made and intended only for the purpose of
binding the Trust Estate and establishing the existence of rights and
remedies which can be exercised and enforced against the Trust Estate.
Therefore, anything contained in this Agreement or such other agreements to
the contrary notwithstanding (except for any express provisions that the
Owner Trustee is responsible for in its individual capacity), no recourse
shall be had with respect to this Agreement or such other agreements
against the Owner Trustee in its individual capacity or against any
institution or Person which becomes a successor trustee or co-trustee or
any officer, director, trustee, servant or direct or indirect parent or
controlling Person or Persons of any of them; provided, however, that this
Section 14(g) shall not be construed to prohibit any action or proceeding
against any party hereto for its own willful misconduct or grossly
negligent conduct for which it would otherwise be liable; and provided,
further, that nothing contained in this Section 14(g) shall be construed to
limit the exercise and enforcement in accordance with the terms of this
Agreement or such other agreements of rights and remedies against the Trust
Estate. The foregoing provisions of this Section 14(g) shall survive the
termination of this Agreement and the other Operative Documents.
(h) Section 1110. It is the intention of the parties hereto
that the Owner Trustee, as Lessor under the Lease, and the Indenture
Trustee, as assignee of such Owner Trustee's rights under the Lease
pursuant to the Trust Indenture, will be entitled to the benefits of 11
U.S.C. Section 1110 in the event of any reorganization of Lessee under such
Section.
SECTION 15. EXPENSES.
(a) Invoices And Payment. Each of the parties hereto shall
promptly submit to the Owner Trustee and Lessee for their prompt approval
(which shall not be unreasonably withheld) copies of invoices in reasonable
detail of the Transaction Expenses for which it is responsible for
providing information as they are received. The Owner Participant agrees to
transfer to the Owner Trustee promptly such amount as shall be necessary in
order to enable the Owner Trustee to pay, or if previously paid by Lessee,
to reimburse Lessee for, Transaction Expenses. To the extent of funds
received by it, the Owner Trustee agrees to pay all invoices of Transaction
Expenses that have been approved by it and Lessee promptly upon receipt
thereof and, to the extent such invoices have previously been paid by
Lessee, to reimburse Lessee promptly therefor. Notwithstanding the
foregoing, to the extent that Transaction Expenses exceed [-]% of Lessor's
Cost, Lessee at its sole option shall have the right to pay directly any or
all Transaction Expenses which are in excess of [-]% of Lessor's Cost.
(b) Payment of Other Expenses. In the event that the
transaction contemplated by this Participation Agreement fails to close as
a result of the Owner Participant's failure to negotiate in good faith or
to comply with the terms and conditions upon which its participation in the
transaction was predicated, the Owner Participant will be responsible for
all of its fees and expenses, including but not limited to the fees,
expenses and disbursements of its special counsel.
SECTION 16. REFINANCINGS.
(a) Refinancing Generally. So long as no Lease Event of
Default shall have occurred and be continuing, Lessee shall have the right
to refinance all (but not less than all) of the Equipment Notes no more
than three times by giving written notice to the Owner Participant and the
Owner Trustee that there shall be effected a voluntary redemption of the
Equipment Notes by the Owner Trustee, whereupon the Owner Participant
agrees to negotiate promptly in good faith to conclude an agreement with
Lessee as to the terms of such refinancing operation (including the terms
of any debt to be issued in connection with such refinancing); provided
that no such refinancing shall require an increase in the amount of the
Owner Participant's investment in the beneficial ownership of the Aircraft
or in the principal amount of the Equipment Notes; and provided further
that the Owner Participant may reject any terms that, in its reasonable
judgment, materially and adversely affect the Owner Participant.
Upon such agreement:
(1) within ten (10) Business Days after the reaching
of such agreement, the Owner Participant will deliver to
Lessee a certificate of an authorized representative of the
Owner Participant (the "Refinancing Certificate") setting
forth (i) (based upon information provided by Lessee and on
the agreement reached between Lessee and the Owner
Participant) the proposed date on which the outstanding
Equipment Notes will be redeemed and a description of any
new debt to be issued and the other aspects of such
refinancing that will be consummated (such date, the
"Refinancing Date") and (ii) the following information
calculated pursuant to the provisions of paragraph (6) of
this Section 16(a): (A) the proposed adjusted debt/equity
ratio, (B) the principal amount of debt to be issued by the
Owner Trustee on the Refinancing Date, (C) the amount, if
any, by which the Owner Participant's aggregate investment
in the beneficial interest in the Aircraft is to be
decreased and (D) the proposed revised schedules of Basic
Rent percentages, debt amortization, EBO Amount, Termination
Value percentages and other purchase option or termination
percentages. The Refinancing Certificate shall not provide
for a debt/equity ratio of more than [_:1]. Within fourteen
days of its receipt of the Refinancing Certificate, Lessee
may demand a verification pursuant to Section 3(g) of the
Lease of the information set forth in the Refinancing
Certificate. Upon the acceptance by Lessee of the accuracy
of the information set forth in the Refinancing Certificate
(or the determination pursuant to such verification
procedures), as to the debt/equity ratio, the principal
amount of debt to be issued by the Owner Trustee on the
Refinancing Date and the revised Basic Rent percentages,
debt amortization, EBO Amount, Termination Value percentages
and other buyout and termination percentages (such
information, whether as set forth or as so determined, the
"Refinancing Information") the appropriate parties will take
the actions specified in paragraphs (2) through (5) below;
(2) the appropriate parties will enter into
appropriate documentation (which may involve an underwriting
agreement in connection with such sale or the sale of the
Owner Trustee's interest in the Trust Estate and/or the
Aircraft and its resale to the Owner Trustee) with the
institution or institutions to be named therein providing
for (A) (i) the issuance and sale by the Owner Trustee to
such institution or institutions on the Refinancing Date of
debt securities in an aggregate principal amount specified
in the Refinancing Information which amount shall be equal
to the aggregate principal amount of all Equipment Notes
outstanding on the Refinancing Date (such debt securities,
the "New Debt") except that the principal amount of New Debt
may exceed the principal amount of all outstanding Equipment
Notes in connection with the first refinancing under this
Section 16, (ii) the application of the proceeds of the sale
of the New Debt to the redemption of all such Equipment
Notes on the Refinancing Date and (iii) the payment of the
excess, if any, of such proceeds over the amounts necessary
to effect such redemption to the Owner Trustee and (B)
pursuant to which the parties to the refinancing transaction
(including the Owner Participant, the Lessee, the Owner
Trustee and the Loan Participants, but excluding the holders
of the Pass Through Certificates) make such representations,
warranties and covenants as Lessee and Owner Participant
reasonably require;
(3) Lessee shall give notice to the Indenture Trustee
pursuant to Section 2.11 of the Trust Indenture, and Lessee
and the Owner Trustee will amend the Lease to provide that
(i) Basic Rent payable in respect of the period from and
after the Refinancing Date shall be as provided in the
Refinancing Information and (ii) amounts payable in respect
of EBO Amount and Termination Value from and after the
Refinancing Date shall be as provided in the Refinancing
Information;
(4) the Owner Trustee will enter into an agreement to
provide for the securing thereunder of the New Debt in like
manner as the Equipment Notes and will enter into such
amendments and supplements to the Trust Indenture (or such
new indenture or other security agreement) as may be
necessary to effect such refinancing;
(5) the Lessee shall pay all of the reasonable
expenses of such refinancing (including, but not limited to,
the reasonable fees, expenses and disbursements of counsel
and any placement or underwriting fees); and
(6) when calculating any of the information required
to be set forth in a Refinancing Certificate, the Owner
Participant shall make such calculations in a manner which
(A) maintains the Owner Participant's Net Economic Return
(except to the extent the assumptions referred are the
subject of the recalculations being conducted by the Owner
Participant) and (B) minimizes the Net Present Value of
Rents to Lessee to the extent possible consistent with
clause (A).
(b) Limitation on Redemption. The Equipment Notes shall not
be subject to voluntary redemption by the Owner Trustee without the consent
of Lessee except as set forth in Section 2.14 of the Trust Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
US AIRWAYS, INC.,
Lessee
By:
----------------------------------
Name:
Title:
[-],
as Owner Participant
By:
----------------------------------
Name:
Title:
STATE STREET BANK AND TRUSt
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
not in its individual capacity
except as otherwise provided herein,
but solely as Indenture Trustee
By:
----------------------------------
Name:
Title:
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not in its individual capacity, except
as expressly provided herein, but solely
as Owner Trustee
By:
----------------------------------
Name:
Title:
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
not in its individual capacity, except as
otherwise provided herein, but solely as
Pass Through Trustee
By:
-----------------------------------
Name:
Title:
STATE STREET BANK AND
TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
not in its individual capacity, except as
otherwise provided herein, but solely as
Subordination Agent
By:
------------------------------------
Name:
Title:
Form Definitions
N___U_
ANNEX A
[FORM OF DEFINITIONS - BASIC LEASE FORM]
DEFINITIONS
-----------
(US Airways, Inc. Trust No. N___U_)
The following terms shall have the following meanings for all
purposes of the Operative Documents referred to below, unless otherwise
defined in an Operative Document or the context thereof shall otherwise
require and such meanings shall be equally applicable to both the singular
and the plural forms of the terms herein defined. In the case of any
conflict between the provisions of this Annex A and the provisions of the
main body of any Operative Document, the provisions of the main body of
such Operative Document shall control the construction of such Operative
Document.
Except as otherwise provided herein, all references to any
agreement defined in this Annex A shall be deemed to include such agreement
as the same may from time to time be amended, supplemented or otherwise
modified in accordance with its terms and, where applicable, the terms of
the other Operative Documents. All references to statutes, rules and
regulations shall be deemed to include all amendments, replacements and
successors thereto unless otherwise specified herein.
"Acceptable Alternate Engine" means (i) a [CFM International
Model 56- 5] (or improved) type engine having not less than 1,500 cycles
left before such engine's next scheduled shop visit in accordance with
Lessee's FAA approved maintenance program or (ii) an engine of the same or
another manufacturer suitable for use on the Airframe and having a value
and utility equal to or greater than a CFM Model 56-5 type engine, assuming
such engine is in the condition required by the Lease.
"Acceptance Certificate" has the meaning specified for such
term in Section 4(a)(v) of the Participation Agreement.
"Actual Knowledge" means, (i) as it applies to the Owner
Trustee or Indenture Trustee, as the case may be, actual knowledge of a
Responsible Officer in the Trust Office of the Owner Trustee or in the
Corporate Trust Office of the Indenture Trustee, as the case may be, and
(ii) as it applies to the Owner Participant, actual knowledge of a vice
president or other higher officer of the Owner Participant having
responsibility for the transactions contemplated by the Operative
Documents.
"Additional Insured" means Lessor, in its individual capacity
and as owner of the Aircraft, the Indenture Trustee, the Owner Participant,
the Pass Through Trustee, the Liquidity Provider, the Policy Provider,
Lessee in its capacity as sublessor under any Sublease, and each of their
respective Affiliates, successors and permitted assigns, and the respective
directors, officers, employees and agents of the foregoing.
"Additional Parts" has the meaning specified for such term in
Section 8(c) of the Lease.
"Advance" has the meaning specified for such term in Section
3(h) of the Lease.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by or under common control
with such Person. For the purposes of this definition, "control" (including
"controlled by" and "under common control with") shall mean the power,
directly or indirectly, to direct or cause the direction of the management
and policies of such Person whether through the ownership of voting
securities or by contract or otherwise.
"AIFS" means Airbus Industrie Financial Services, a corporation
formed under the laws of Ireland.
"Aircraft" means the Airframe to be delivered and leased under
the Lease (or any airframe from time to time substituted for such Airframe
pursuant to Section 10(a) of the Lease) together with the two Engines
initially leased under the Lease (or any engine substituted for either of
such Engines pursuant to the terms of the Lease), in each case as specified
in the applicable Lease Supplement, whether or not any of such initial or
substituted Engines may from time to time be installed on such initial or
substituted Airframe or may be installed on any other airframe or on any
other aircraft.
"Airframe" means: (i) the Airbus aircraft (except Engines or
engines from time to time installed thereon) specified in the initial Lease
Supplement, which aircraft shall be leased by Lessor to Lessee under the
Lease and under such Lease Supplement, and any aircraft (except Engines or
engines from time to time installed thereon) which may from time to time be
substituted for such aircraft (except Engines or engines from time to time
installed thereon) pursuant to clause (ii) of the first paragraph of
Section 10(a) of the Lease; and (ii) any and all Parts (A) so long as the
same shall be incorporated or installed in or attached to such aircraft
(except Engines or engines from time to time installed thereon), or (B) so
long as title thereto shall remain vested in Lessor in accordance with the
terms of Section 8 of the Lease after removal from such aircraft (except
Engines or engines from time to time installed thereon); provided, however,
that at such time as an aircraft (except Engines or engines from time to
time installed thereon) shall be deemed part of the property leased under
the Lease in substitution for the Airframe pursuant to the applicable
provisions of the Lease, the replaced Airframe shall cease to be an
Airframe under the Lease; provided further that the Airframe shall not
include Passenger Convenience Equipment.
"Bankruptcy Code" means the Bankruptcy Reform Act of 1978, as
amended, or any subsequent legislation that amends, supplements or
supersedes such provisions.
"Base Rate" means the rate of interest announced publicly by
The Chase Manhattan Bank in New York, New York from time to time as its
base rate.
"Basic Rent" means, for the Basic Term, the rent payable for
the Aircraft pursuant to Section 3(b) of the Lease as adjusted as provided
in Section 3(c) of the Lease but subject always to the provisions of
Section 3(c)(v) of the Lease and, for any Renewal Term, Basic Rent
determined pursuant to Section 19 of the Lease.
"Basic Term" means the term for which the Aircraft is leased
pursuant to Section 3(a) of the Lease, commencing on the Delivery Date and
ending on the Basic Term Expiration Date.
"Basic Term Expiration Date" means , or such earlier date as
the Lease may be terminated in accordance with the provisions thereof.
"▇▇▇▇ of Sale" means a full warranty ▇▇▇▇ of sale covering the
Aircraft, executed by Lessee in favor of the Owner Trustee, dated the
Delivery Date, specifically referring to the Airframe and each Engine,
which ▇▇▇▇ of Sale shall contain, among other things, a statement that such
▇▇▇▇ of Sale thereby conveys to the Owner Trustee good title to the
Airframe and each Engine described in such ▇▇▇▇ of Sale, free and clear of
all liens, encumbrances and rights of others except Permitted Liens
described in Section 6(a)(xv) of the Participation Agreement.
"Burdensome Termination Event" means an event which shall be
deemed to have occurred if (A) one or more events have occurred which give
rise to an obligation on the part of Lessee to pay or indemnify any costs
or expenses under Sections 6(b) or 6(c) of the Participation Agreement or
under the Tax Indemnity Agreement if the aggregate amount of such indemnity
or other payments would exceed (as to future payments on a present value
basis discounted at the Debt Rate) 2.50% of Lessor's Cost or (B) Lessee
plans non-severable improvements to the Aircraft which (i) are necessary or
desirable in Lessee's sole discretion, (ii) are expected to cost in excess
of $2.5 million and (iii) the Owner Participant will not permit to be
financed under similar terms then available in the market for similar
transaction.
"Business Day" means any day other than a Saturday or Sunday or
a day on which commercial banks are required or authorized to close in New
York, New York, Hartford, Connecticut, Pittsburgh, Pennsylvania or the city
and state where the office of the Owner Trustee is located.
"Cash Equivalents" means (i) direct obligations of the United
States of America and agencies guaranteed by the United States government
having a final maturity of ninety (90) days or less from date of purchase
thereof; (ii) certificates of deposit issued by, bankers' acceptances of,
or time deposits with, any bank, trust company or national banking
association incorporated under the laws of the United States of America or
one of the states thereof having combined capital and surplus and retained
earnings as of its last report of condition of at least $500,000,000 and
having a rating of Aa or better by ▇▇▇▇▇'▇ Investors Service, Inc.
("Moody's") or AA or better by Standard & Poor's Corporation ("S&P") and
having a final maturity of ninety (90) days or less from date of purchase
thereof; and (iii) commercial paper of any holding company of a bank, trust
company or national banking association described in (ii) and commercial
paper of any corporation or finance company incorporated or doing business
under the laws of the United States of America or any state thereof having
a rating assigned to such commercial paper of A1 by S&P or P1 by Moody's
and having a final maturity of ninety (90) days or less from the date of
purchase thereof; provided, however, that the aggregate amount at any one
time so invested in certificates of deposit issued by any one bank shall
not be in excess of 5% of such bank's capital and surplus.
"Certificated Air Carrier" means a Citizen of the United States
holding an air carrier operating certificate issued pursuant to Chapter 447
of Title 49, United States Code, for aircraft capable of carrying ten or
more individuals or 6,000 pounds or more of cargo or that otherwise is
certified or registered to the extent required to fall within the purview
of Section 1110 of the Bankruptcy Code or any analogous successor provision
of the Bankruptcy Code.
"Citizen of the United States" has the meaning specified for
such term in Section 40102(a)(15) of Title 49 of the United States Code or
any similar legislation of the United States of America enacted in
substitution or replacement therefor.
"Civil Reserve Air Fleet Program" means the Civil Reserve Air
Fleet Program currently administered by the United States Air Force Air
Mobility Command pursuant to Executive Order No. 11490, as amended, or any
substantially similar program.
"Class C Liquidity Provider" means [-], or any successor
thereto.
"Class C Purchase Agreement" means that certain Purchase
Agreement, dated as of ______________, by and between Lessee and AIFS.
"Class G Liquidity Provider" means [-], or any successor
thereto.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" means the commitment pursuant to the Participation
Agreement of a Pass Through Trustee or of the Owner Participant, as the
case may be, to finance the Owner Trustee's payment of Lessor's Cost for
the Aircraft.
"Consent and Agreement" means, collectively, each Consent and
Agreement (US Airways, Inc. Trust No. N___U_), dated as of the date of the
Lease, executed by the Seller and the Manufacturer, respectively, as the
same may be amended, modified or supplemented from time to time in
accordance with the applicable provisions thereof.
"Continuous Stay Period" has the meaning specified for such
term in Section 4.04(a) of the Trust Indenture.
"Corporate Trust Office" means the principal office of the
Indenture Trustee located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Square, Hartford,
Connecticut 06103, Attention: Corporate Trust Administration, or such other
office at which the Indenture Trustee's corporate trust business shall be
administered which the Indenture Trustee shall have specified by notice in
writing to Lessee, the Owner Trustee, the Loan Participants and each Note
Holder.
"Debt" means any liability for borrowed money, or any liability
for the payment of money in connection with any letter of credit
transaction, or other liabilities evidenced or to be evidenced by bonds,
debentures, notes or other similar instruments or for the deferred purchase
price of property, goods or services.
"Debt Rate" means, with respect to any Series, the rate per
annum specified for such Series under the heading "Interest Rate" in
Schedule I to the Trust Indenture.
"Default" means any event or condition that with the giving of
notice or the lapse of time or both would become an Event of Default or
Lease Event of Default (excluding Lease Events of Default related to
Excluded Payments).
["Deferred Equity Amounts" has the meaning set forth in
Schedule IV of the Participation Agreement.]1
["Deferred Equity Dates" has the meaning set forth in Schedule
IV of the Participation Agreement.]2
"Delivery Date" means the date of the initial Lease Supplement
for the Aircraft, which date shall be the date the Aircraft is leased by
Lessor to Lessee and accepted by Lessee under the Lease.
--------
1 For deferred equity transactions only.
2 For deferred equity deals only.
"Delivery Notice" means the notice of delivery delivered
pursuant to Section 2(c) of the Participation Agreement.
"Deposit Agreements" means, collectively, (i) that certain
Deposit Agreement (Class G), dated as of the Pass Through Trust Closing
Date, between First Security Bank, National Association, as escrow agent
under the Escrow Agreement referred to therein, and the Depositary and (ii)
that certain Deposit Agreement (Class C), dated as of the Pass Through
Trust Closing Date, between First Security Bank, National Association, as
escrow agent under the Escrow Agreement referred to therein, and the
Depositary.
"Depositary" means [-], as Class G Depositary and Class C
Depositary under the Deposit Agreements, or any successor thereto.
"Depreciation Period" means the period commencing on the
Delivery Date and ending at the end of the calendar year during which the
seventh (7th) anniversary of the Delivery Date occurs, or such earlier date
as the Lease may be terminated in accordance with the provisions of the
Lease.
"Determination Date" has the meaning set forth in Section
10(a)(i) of the Lease.
"Dollars" and "$" mean the lawful currency of the United States
of America.
"EBO Amount" means the applicable amount for the relevant EBO
Date set forth on Exhibit D to the Lease (as such Exhibit D may be adjusted
from time to time as provided in Section 3(c) of the Lease or as expressly
provided in any Operative Document).
"EBO Date" means the applicable date set forth on Exhibit D to
the Lease.
"Enforcement Date" has the meaning specified for such term in
Section 4.03 of the Trust Indenture.
"Engine" means (i) each of the two CFM International 56-5 type
engines listed by manufacturer's serial number in the initial Lease
Supplement, whether or not from time to time thereafter installed on the
Airframe or installed on any other airframe or on any other aircraft; and
(ii) any Acceptable Alternate Engine that may from time to time be
substituted, pursuant to the terms of the Lease, for either of such two
Engines, together in each case with any and all Parts incorporated or
installed in or attached thereto or any and all Parts removed therefrom so
long as title thereto shall remain vested in Lessor in accordance with the
terms of Section 8 of the Lease after removal from such Engine; provided,
however, that at such time as an engine shall be deemed part of the
property leased under the Lease in substitution for an Engine pursuant to
the applicable provisions of the Lease, the replaced Engine shall cease to
be an Engine under the Lease or other Operative Documents. The term
"Engines" means, as of any date of determination, all Engines then leased
under the Lease.
"Equipment Note Register" has the meaning specified for such
term in Section 2.07 of the Trust Indenture.
"Equipment Note Registrar" has the meaning specified for such
term in Section 2.07 of the Trust Indenture.
"Equipment Notes" means and include any Equipment Notes issued
under the Trust Indenture, and issued in exchange therefor or replacement
thereof.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder. Section references to ERISA are to ERISA, as in
effect at the date of the Participation Agreement and any subsequent
provisions of ERISA, amendatory thereof, supplemental thereto or
substituted therefor.
"Escrow Agreements" means, collectively, (i) that certain
Escrow and Paying Agent Agreement (Class G), dated as of the Pass Through
Trust Closing Date, among First Security Bank, National Association, as
escrow agent, the Underwriters, the Pass Through Trustee, and State Street
Bank and Trust Company of Connecticut, National Association, as paying
agent thereunder and (ii) that certain Escrow and Paying Agent Agreement
(Class C), dated as of the Pass Through Trust Closing Date, among First
Security Bank, National Association, as escrow agent, AIFS, the Pass
Through Trustee, and State Street Bank and Trust Company of Connecticut,
National Association, as paying agent thereunder.
"Event of Default" (i) when such term is used in or with
respect to the Lease has the meaning specified for such term in Section 14
of the Lease and (ii) when such term is used in or with respect to the
Trust Indenture has the meaning specified for such term in Section 4.02 of
the Trust Indenture.
"Event of Loss" means, with respect to the Aircraft, Airframe
or any Engine, any of the following events with respect to such property:
(i) the loss of such property or of the use thereof due to the destruction
of or damage to such property which renders repair uneconomic or which
renders such property permanently unfit for normal use by Lessee (or any
Sublessee) for any reason whatsoever; (ii) any damage to such property
which results in an insurance settlement with respect to such property on
the basis of a total loss, or a constructive or compromised total loss;
(iii) the theft or disappearance of such property for a period in excess of
one hundred eighty (180) days or, if earlier, the expiration of the Term;
(iv) the requisition for use of such property by any governmental authority
(other than a requisition for use by the United States Government or any
government of registry of the Aircraft or any agency or instrumentality
thereof) that shall have resulted in the loss of possession of such
property by Lessee (or any Sublessee) for a period in excess of one hundred
eighty (180) consecutive days or, if earlier, the expiration of the Term;
(v) the requisition for use by the United States Government or any
government of registry of the Aircraft or any instrumentality or agency
thereof, which shall have occurred during the Basic Term (or any Renewal
Term) and shall have continued for a period of thirty (30) days beyond the
Term, provided, however, that no Event of Loss pursuant to this clause (v)
shall exist if Lessor shall have furnished to Lessee the written notice
specified in Section 10(d) of the Lease; (vi) condemnation, confiscation,
requisition or taking of title of the Aircraft or the Airframe for more
than thirty (30) days, or if earlier, the expiration of the Term; (vii) as
a result of any law, rule, regulation, order or other action by the Federal
Aviation Administration or other governmental body of the government of
registry of the Aircraft having jurisdiction, the use of such property in
the normal course of the business of air transportation shall have been
prohibited for a period of one hundred eighty (180) consecutive days,
unless Lessee (or Sublessee) shall have undertaken and shall be diligently
carrying forward all steps which are necessary or desirable to permit the
normal use of such property by Lessee (or such Sublessee), but in any event
an "Event of Loss" shall occur if such "grounding" extends for a period of
more than three hundred sixty (360) days (or, if earlier, the expiration of
the Term); provided that no Event of Loss shall be deemed to occur if such
"grounding" is applicable to Lessee's entire fleet of A[319][320][321]
aircraft and Lessee, prior to the expiration of one year from the
prohibition of such use, shall have conformed at least one such aircraft in
its fleet to the requirements of any such law, rule, regulation, order or
other action and commenced regular commercial use of the same in such
jurisdiction and shall be diligently carrying forward, on a
non-discriminatory basis, all steps which are necessary or desirable to
permit the normal use of the Aircraft by Lessee (or such Sublessee), but in
any event an "Event of Loss" shall be deemed to have occurred if such use
shall have been prohibited for a period of two consecutive years or such
use shall be prohibited at the expiration of the Term; and (viii) with
respect to an Engine only, any divestiture of title to or interest in an
Engine or any event with respect to an Engine that is deemed to be an Event
of Loss with respect to such Engine pursuant to Section 7(b) of the Lease.
An Event of Loss with respect to the Aircraft shall be deemed to have
occurred if an Event of Loss occurs with respect to the Airframe.
"Excluded Payments" means (i) indemnity payments paid or
payable by Lessee to or in respect of the Owner Participant or the Owner
Trustee in its individual capacity, their respective Affiliates, successors
and permitted assigns and their directors, officers, employees, servants
and agents (collectively, the "Owner Indemnitees") pursuant to Sections
6(b), 6(c), 15 or 16 of the Participation Agreement, (ii) proceeds of
public liability insurance in respect of the Aircraft payable as a result
of insurance claims made, or losses suffered, by the Owner Trustee or the
Indenture Trustee in their respective individual capacities or by any of
the Owner Indemnitees, (iii) proceeds of insurance maintained with respect
to the Aircraft by the Owner Participant (whether directly or through the
Owner Trustee) or any other Owner Indemnitee and permitted under Section 11
of the Lease, (iv) all payments required to be made under the Tax Indemnity
Agreement by Lessee and all payments of Supplemental Rent by Lessee in
respect of any amounts payable under the Tax Indemnity Agreement, (v)
Transaction Expenses payable by Lessee to the Owner Trustee in its
individual capacity or to the Owner Participant pursuant to Section 15 of
the Participation Agreement and fees payable to the Owner Trustee or the
Indenture Trustee, (vi) any amount payable to the Owner Participant by any
transferee in consideration for the assignment of the Owner Participant's
interest in the Trust Estate, (vii) provided that the Equipment Notes shall
have been duly assumed by Lessee pursuant to Section 2.13 of the Trust
Indenture, the amounts payable to the Owner Trustee pursuant to Section
19(b) or 20 of the Lease plus all expenses incurred by the Owner Trustee
and the Owner Participant in connection with such assumption, as
applicable, (viii) interest accrued on any of the above, (ix) any right to
enforce the payment of any amount described in clauses (i) through (viii)
above (provided the rights referred to in this clause (ix) shall not be
deemed to include the exercise of any remedies provided for in the Lease
other than the right to ▇▇▇ for specific performance of any covenant or to
make such payment or to ▇▇▇ for damages in respect of the breach of any
such covenant) and (x) any right to exercise any election or option or make
any decision or determination, or give or receive any notice, consent,
waiver or approval, or take any other action, in each case, with respect to
any amount described in clauses (i) through (viii) above, including the
right to declare a Lease Event of Default, in respect of Lessee's failure
to pay any amounts described in clauses (i) through (viii) above (provided
the rights referred to in this clause (x) shall not be deemed to include
the exercise of any remedies provided for in the Lease other than the
remedies described in clause (ix) above and right to exercise any election,
option or make any decision or determination or give or receive any notice,
covenant, waiver or approval or take other action, in each case, to the
extent and only to the extent relating to an "Excluded Payment" described
in clauses (i) through (viii) of this definition).
"Expenses" means all liabilities, obligations, losses, damages,
settlements, penalties, claims, actions, suits, costs, expenses and
disbursements (including, without limitation, reasonable fees and
disbursements of legal counsel, accountants, appraisers, inspectors or
other professionals and reasonable costs of investigation).
"Fair Market Renewal Term" has the meaning specified for such
term in Section 19(a)(2) of the Lease.
"FAA ▇▇▇▇ of Sale" means a ▇▇▇▇ of sale for the Aircraft on AC
Form 8050-2 (or such other form as may be approved by the Federal Aviation
Administration), executed by Lessee in favor of the Owner Trustee and dated
the Delivery Date.
"Federal Aviation Administration" and "FAA" mean the United
States Federal Aviation Administration and any agency or instrumentality of
the United States government succeeding to their functions.
"Federal Funds Rate" means a fluctuating interest rate per
annum in effect from time to time, which rate per annum shall at all times
be equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank of
New York, or if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day for such
transactions received by State Street from three Federal funds brokers of
recognized standing selected by it.
"Fixed Renewal Term" has the meaning specified for such term in
Section 19(a)(1) of the Lease.
"Foreign Air Carrier" means any air carrier which is not a U.S.
Air Carrier and which performs, or contracts for the performance of,
maintenance, preventative maintenance and inspections for the Aircraft,
Airframe and/or any Engine or engine to standards which are approved by, or
which are substantially equivalent to those required by, the Federal
Aviation Administration or any Permitted Foreign Air Authority.
"French Pledge Agreement" means the French Pledge Agreement (US
Airways, Inc. Trust No. N___U_), dated as of the date of the Lease, between
the Owner Trustee and the Indenture Trustee, as the same may be amended,
supplemented or modified from time to time.
"Government Entity" means (a) any federal, state, provincial or
similar government, and any body, board, department, commission, court,
tribunal, authority, agency or other instrumentality of any such government
or otherwise exercising any executive, legislative, judicial,
administrative or regulatory functions of such government or (b) any other
government entity having jurisdiction over any matter contemplated by the
Operative Documents or relating to the observance or performance of the
obligations of any of the parties to the Operative Documents.
"Incremental Amount" means, as of any Rent Payment Date (such
Rent Payment Date, the "Applicable Rent Payment Date"), the difference
between (i) the aggregate amount of interest (other than overdue interest)
then due and payable on the Series C Equipment Notes (or due and payable on
the next Business Day, if such date is not a Business Day), other than
overdue interest, and (ii) the aggregate amount of interest on the Series C
Equipment Notes that would have been due and payable on such date if such
Series C Equipment Notes had borne interest at ___%, from the immediately
preceding Rent Payment Date to, but excluding, the Applicable Rent Payment
Date.
"Indemnitee" means (i) the Owner Trustee, in its individual
capacity and as trustee under the Trust Agreement, (ii) the Indenture
Trustee, (iii) the Owner Participant, (iv) the Trust Estate, (v) the Loan
Participants and each other Note Holder, (vi) the Subordination Agent,
(vii) the Liquidity Provider, (viii) the Policy Provider, (ix) the Pass
Through Trustees, (x) each Affiliate of the Persons described in clauses
(i) through (iv), inclusive, (xi) each Affiliate of the Persons described
in clauses (vi), (vii), (viii) and (ix), (xii) the respective directors,
officers, employees, agents and servants of each of the Persons described
in clauses (i) through (ix), inclusive, (xiii) the successors and permitted
assigns of the Persons described in clauses (i) through (iv), inclusive,
and (xiv) the successors and permitted assigns of the Persons described in
clauses (v), (vi), (vii), (viii) and (ix).
"Indemnity Agreement" means that certain Indemnity Agreement,
dated as of the Pass Through Trust Closing Date, between the Depositary and
Lessee.
"Indenture Agreements" means the Participation Agreement, the
Lease, the Purchase Agreement, the Purchase Agreement Assignment, the
Consent and Agreement, the Bills of Sale and any other contract, agreement
or instrument from time to time assigned or pledged under the Trust
Indenture.
"Indenture Default" means any condition, circumstance, act or
event which with the giving of notice or the lapse of time or both would
become an Indenture Event of Default.
"Indenture Event of Default" has the meaning given the term
"Event of Default" in the Trust Indenture.
"Indenture Excess Amount" has the meaning specified for such
term in Section 2.03(b) of the Trust Indenture.
"Indenture Indemnitees" means (i) State Street and the
Indenture Trustee, (ii) each separate or additional trustee appointed
pursuant to the Trust Indenture, (iii) the Subordination Agent, (iv) each
Liquidity Provider, (v) the Policy Provider, (vi) each Pass Through Trustee
and (vii) each of the respective directors, officers, employees, agents and
servants of each of the Persons described in clauses (i) through (vi),
inclusive.
"Indenture Trustee" means State Street Bank and Trust Company
of Connecticut, National Association, a national banking association, not
in its individual capacity, but solely as Indenture Trustee, and any entity
which may from time to time be acting as indenture trustee under the Trust
Indenture.
"Indenture Trustee Documents" means the Participation
Agreement, the Trust Indenture and the French Pledge Agreement and any
other agreements between the Indenture Trustee and any other party to the
Participation Agreement relating to the Transactions, delivered on the
Delivery Date.
"Indenture Trustee Event" means either (i) the Equipment Notes
shall have been declared due and payable by the Indenture Trustee pursuant
to Section 4.04(b) of the Trust Indenture, (ii) the Indenture Trustee has
taken action or notified Owner Trustee that it intends to take action to
foreclose the Lien of the Trust Indenture or otherwise commence the
exercise of any significant remedy under the Trust Indenture or the Lease
or (iii) in the event of a reorganization proceeding under Chapter 11 of
the Bankruptcy Code in which Lessee is a debtor, (A) the trustee in such
proceeding or Lessee not agreeing to perform its obligations under the
Lease, as contemplated under Section 1110, during the 60-day period under
Section 1110(a)(2)(A) of the Bankruptcy Code (or such longer period as may
apply under Section 1110(b) of the Bankruptcy Code) or (B) at any time
after agreeing to perform such obligations, such trustee or Lessee ceasing
to perform such obligations with the result that the Continuous Stay Period
comes to an end.
"Indenture Trustee's Liens" means any Lien which arises as a
result of (A) claims against the Indenture Trustee not related to its
interest in the Aircraft or the administration of the Trust Indenture
Estate pursuant to the Trust Indenture, (B) acts of the Indenture Trustee
not permitted by, or failure of the Indenture Trustee to take any action
required by, the Operative Documents to the extent such acts arise or such
failure arises from or constitutes gross negligence or willful misconduct,
(C) claims against the Indenture Trustee relating to Taxes or Expenses
which are excluded from the indemnification provided by Section 6 of the
Participation Agreement pursuant to said Section 6, or (D) claims against
the Indenture Trustee arising out of the transfer by the Indenture Trustee
of all or any portion of its interest in the Aircraft, the Trust Estate,
the Trust Indenture Estate or the Operative Documents other than a transfer
of the Aircraft pursuant to Section 9, 10 or 19 of the Lease or Article IV
or V of the Trust Indenture, or a transfer of the Aircraft pursuant to
Section 15 of the Lease while an Event of Default is continuing and prior
to the time that the Indenture Trustee has received all amounts due
pursuant to the Trust Indenture.
["Initial Rent Payment" means _______________, ____]
"Insurance Brokers" has the meaning specified for such term in
Section 11 of the Lease.
"Intercreditor Agreement" means that certain Intercreditor
Agreement, dated as of the Pass Through Trust Closing Date, among the Pass
Through Trustees, the Liquidity Provider, the Policy Provider and the
Subordination Agent.
"Law" means (a) any constitution, treaty, statute, law,
regulation, order, rule or directive of any Government Entity and (b) any
judicial or administrative interpretation or application of, or decision
under, any of the foregoing.
"Lease" means that certain Lease Agreement (US Airways, Inc.
Trust No. N___U_), dated as of [-], entered into by the Owner Trustee and
Lessee concurrently with the execution and delivery of the Trust Indenture,
as said Lease Agreement has been, or may from time to time be, supplemented
or amended, or the terms thereof waived or modified, to the extent
permitted by, and in accordance with, the terms of the Trust Indenture. The
term "Lease" shall also include each Lease Supplement from time to time
entered into pursuant to the terms of the Lease.
"Lease Default" means any event which with the giving of notice
or the lapse of time or both would become a Lease Event of Default.
"Lease Event of Default" means an "Event of Default" as defined
in Section 14 of the Lease.
"Lease Period" means (i) with respect to the Basic Term the
"Lease Periods" identified on Exhibit B-2 to the Lease and (ii) with
respect to any Renewal Term, each of the consecutive periods throughout
such Renewal Term ending on a Rent Payment Date, the first such period
commencing on and including the first day of such Renewal Term.
"Lease Supplement" means a Lease Supplement, substantially in
the form of Exhibit A to the Lease, to be entered into between Lessor and
Lessee on the Delivery Date for the purpose of leasing the Aircraft under
and pursuant to the terms of the Lease, and any subsequent Lease Supplement
entered into in accordance with the terms of the Lease.
"Lessee" means US Airways, Inc., a Delaware corporation.
"Lessee Documents" means the Participation Agreement, the
Lease, the Lease Supplement covering the Aircraft, the Purchase Agreement
(insofar as it relates to the Aircraft), the FAA ▇▇▇▇ of Sale, the ▇▇▇▇ of
Sale, the Purchase Agreement Assignment, the Tax Indemnity Agreement and
each other agreement between the Lessee and any other party to the Lease
delivered on the Delivery Date.
"Lessor" means First Security Bank, National Association, not
in its individual capacity, but solely as Owner Trustee, or any of its
successors and permitted assigns acting as lessor under the Lease.
"Lessor Liens" means any Lien or disposition of title or
interest arising as a result of (i) claims against Lessor, First Security
Bank, National Association, in its individual capacity, or the Owner
Participant not related to the transactions contemplated by the Operative
Documents, (ii) any act or omission of the Owner Participant, Lessor, or
First Security Bank, National Association, in its individual capacity,
which is not related to the transactions contemplated by the Operative
Documents or is in violation of any of the terms of the Operative
Documents, (iii) claims against the Owner Participant, Lessor, or First
Security Bank, National Association, in its individual capacity, with
respect to Taxes or Expenses against which Lessee is not required to
indemnify the Owner Participant, Lessor or First Security Bank, National
Association, in its individual capacity, pursuant to Section 6 of the
Participation Agreement or (iv) claims against Lessor or the Owner
Participant arising out of any transfer by Lessor or the Owner Participant
of all or any portion of the respective interests of Lessor or the Owner
Participant in the Aircraft, the Trust Estate or the Operative Documents
other than the transfer of possession of the Aircraft by Lessor pursuant to
the Lease, the transfer pursuant to the Trust Indenture or a transfer of
the Aircraft pursuant to Section 9, 10, 19 or 20 of the Lease or pursuant
to the exercise of the remedies set forth in Section 15 of the Lease.
"Lessor's Cost" for the Aircraft means the amount denominated
as such in Exhibit B-3 to the Lease.
"Lien" means any mortgage, pledge, lien, charge, claim,
encumbrance, lease, sublease, sub-sublease or security interest.
"Liquidity Facility" means each of the two Revolving Credit
Agreements, each dated as of the Pass Through Trust Closing Date, between
the Subordination Agent, as borrower, and the applicable Liquidity
Provider, and any replacement thereof, in each case as the same may be
amended, modified or supplemented.
"Liquidity Provider" means [-], as Class G Liquidity Provider
and Class C Liquidity Provider under the Liquidity Facilities, or any
successor thereto.
"Loan Participant" means each Purchaser and its respective
successors and registered assigns, including any Note Holder.
"Loan Participant Liens" means any Lien which arises from acts
or claims against any Loan Participant not related to the transactions
contemplated by the Operative Documents.
"Loss Payment Date" has the meaning specified for such term in
Section 10(a) of the Lease.
"Majority in Interest of Note Holders" as of a particular date
of determination means the holders of at least a majority in aggregate
unpaid principal amount of all Equipment Notes outstanding as of such date
(excluding any Equipment Notes held by the Owner Trustee or the Owner
Participant or any interests of the Owner Participant therein by reason of
subrogation pursuant to Section 4.03 of the Trust Indenture (unless all
Equipment Notes then outstanding shall be held by the Owner Trustee or the
Owner Participant) or Lessee or any affiliate of any thereof).
"Make-Whole Amount" means, with respect to any Equipment Note,
the amount (as determined by an independent investment banker selected by
Lessee and reasonably acceptable to the Indenture Trustee and the Owner
Participant) by which (a) the present value of the remaining scheduled
payments of principal and interest from the redemption date to maturity of
such Equipment Note computed by discounting each such payment on a
semiannual basis from its respective Payment Date (assuming a 360- day year
of twelve 30-day months) using a discount rate equal to the Treasury Yield
exceeds (b) the outstanding principal amount of such Equipment Note plus
accrued interest. For purposes of determining the Make-Whole Amount,
"Treasury Yield" means, at the time of determination, the interest rate
(expressed as a semiannual equivalent and as a decimal and, in the case of
United States Treasury bills, converted to a bond equivalent yield)
determined to be the per annum rate equal to the semiannual yield to
maturity for United States Treasury securities maturing on the Average Life
Date and trading in the public securities market either as determined by
interpolation between the most recent weekly average yield to maturity for
two series of United States Treasury securities, trading in the public
securities markets, (A) one maturing as close as possible to, but earlier
than, the Average Life Date and (B) the other maturing as close as possible
to, but later than, the Average Life Date, in each case as published in the
most recent H.15(519) or, if a weekly average yield to maturity for United
States Treasury securities maturing on the Average Life Date is reported on
the most recent H.15(519), such weekly average yield to maturity as
published in such H.15(519). "H.15(519)" means the weekly statistical
release designated as such, or any successor publication, published by the
Board of Governors of the Federal Reserve System. The date of determination
of a Make-Whole Amount shall be the third Business Day prior to the
applicable redemption date and the "most recent H.15(519)" means the
H.15(519) published prior to the close of business on the third Business
Day prior to the applicable redemption date. "Average Life Date" means, for
each Equipment Note to be redeemed, the date which follows the redemption
date by a period equal to the Remaining Weighted Average Life at the
redemption date of such Equipment Note.
"Manufacturer" means Airbus Industrie G.I.E., a groupement
d'interet economique established under Ordonnance No. 67-821 dated
September 23, 1967 of the Republic of France, and its successors and
assigns.
"Manufacturer Documents" means the Purchase Agreement and the
Consent and Agreement.
"Mortgaged Property" has the meaning specified for such term in
Section 3.03 of the Trust Indenture.
"Net Economic Return" means the Owner Participant's after-tax
yield and aggregate after-tax cash flow utilizing the multiple investment
sinking fund method of analysis, computed on the basis of the same
methodology and assumptions as were utilized by the Owner Participant in
determining Basic Rent, Termination Value percentages and EBO Amount as of
the Delivery Date.
"Net Present Value of Rents" means the net present value, as of
the date of calculation, of Basic Rent set forth in Exhibit B-1 to the
Lease, discounted at an annual interest rate of ten percent (10%) on a
semi-annual basis.
"New Debt" has the meaning specified for such term in Section
16(a) of the Participation Agreement.
"Non-U.S. Person" means any Person other than a U.S. Person.
"Note Holder" means any holder from time to time of one or more
Equipment Notes.
"Note Purchase Agreement" means the Note Purchase Agreement
dated as of the Pass Through Trust Closing Date among Lessee, the Pass
Through Trustee for the Class G and Class C Pass Through Trusts, the
Subordination Agent, First Security Bank, National Association, as Escrow
Agent, and State Street Bank and Trust Company of Connecticut, National
Association, as Paying Agent.
"Obsolete Parts" has the meaning specified for such term in
Section 8(c) of the Lease.
"Operative Documents" means, collectively, the Participation
Agreement, the Lease, the Trust Indenture, the Trust Agreement, an
acceptance certificate covering the Aircraft in the form agreed to by the
Participants and Lessee, the Tax Indemnity Agreement, the Lease Supplement
covering the Aircraft, the Trust Supplement covering the Aircraft, the
Equipment Notes, the ▇▇▇▇ of Sale, the FAA ▇▇▇▇ of Sale, the French Pledge
Agreement, the Purchase Agreement (insofar as it relates to the Aircraft),
the Purchase Agreement Assignment and the Consent and Agreement (each, an
"Operative Document").
"Operative Indentures" means each of the indentures under which
notes have been issued and purchased by the Pass Through Trustees.
"Owner Indemnitee" has the meaning specified for such term in
the definition of Excluded Payments.
"Owner Participant" means [-], a [-] corporation, so long as
such party shall have any interest in the Trust Estate, and transferees
thereof as permitted by Section 7(k) of the Participation Agreement and
Section 8.01 of the Trust Agreement.
"Owner Participant Documents" means the Participation
Agreement, the Trust Agreement, and the Tax Indemnity Agreement and each
other agreement between the respective parties thereto relating to the
subject matter thereof, delivered on the Delivery Date.
"Owner Trustee" means First Security Bank, National
Association, not in its individual capacity but solely as owner trustee,
and any entity appointed as successor Owner Trustee pursuant to Section
9.01 of the Trust Agreement, and references to a predecessor Owner Trustee
in its individual capacity by name in the Operative Documents shall include
such successor Owner Trustee in its individual capacity from and after such
succession.
"Owner Trustee Documents" means the Participation Agreement,
the Trust Agreement, the Trust Supplement covering the Aircraft, the Lease,
the Lease Supplement covering the Aircraft, the Purchase Agreement
Assignment, the French Pledge Agreement, the Trust Indenture and the
Equipment Notes and each other agreement between the respective parties
thereto relating to the subject matter thereof, delivered on the Delivery
Date.
"Owner Trustee's pro rata share" has the meaning specified for
such term in the Trust Indenture.
"Participants" means the Loan Participants and the Owner
Participant, collectively (each individually, a "Participant").
"Participation Agreement" means that certain Participation
Agreement (US Airways, Inc. Trust No. N___U_), dated as of the date of the
Lease, among the Owner Trustee, the Subordination Agent, the Indenture
Trustee, Lessee, the Owner Participant and the Pass Through Trustee, as the
same may from time to time be supplemented or further amended, or the terms
thereof waived or modified, to the extent permitted by, and in accordance
with, the terms thereof.
"Parts" means all appliances, parts, instruments,
appurtenances, accessories, furnishings and other equipment of whatever
nature (other than (a) complete Engines or engines, (b) any items leased by
Lessee from a third party (other than Lessor) and (c) cargo containers)
which may from time to time be incorporated or installed in or attached to
the Airframe or any Engine or so long as title thereto shall remain vested
in Lessor in accordance with Section 8 of the Lease after removal
therefrom; provided that "Parts" shall not include Passenger Convenience
Equipment.
"Pass Through Certificates" means the pass through certificates
to be issued by the Pass Through Trustee in connection with the
Transactions.
"Pass Through Documents" means the Participation Agreement, the
Pass Through Trust Agreements, the Note Purchase Agreement, the Deposit
Agreements, the Escrow Agreements, the Liquidity Facilities, the Deposit
Agreements, the Policy Provider Agreement, the Policy and the Intercreditor
Agreement.
"Pass Through Indemnitees" means (i) the Subordination Agent,
the Liquidity Provider, the Policy Provider and the Pass Through Trustee,
(ii) each Affiliate of a Person described in the preceding clause (i),
(iii) the respective directors, officers, employees, agents and servants of
each of the Persons described in the preceding clauses (i) and (ii) and
(iv) the successors and permitted assigns of the Persons described in the
preceding clauses (i), (ii) and (iii).
"Pass Through Trust" means, collectively, the two separate
grantor trusts set forth in Schedule III to the Participation Agreement
created, pursuant to the Pass Through Trust Agreement, to facilitate
certain of the transactions contemplated by the Operative Documents.
"Pass Through Trust Agreement"or "Pass Through Trust
Agreements" means the pass through trust agreement and each of the two
separate pass through trust supplements referred to on Schedule III to the
Participation Agreement.
"Pass Through Trust Closing Date" means [-], 2000.
"Pass Through Trustee" means State Street Bank and Trust
Company of Connecticut, National Association, a national banking
association, in its capacity as trustee under each Pass Through Trust
Agreement, and each other Person that may from time to time be acting as
successor trustee under any such Pass Through Trust Agreement.
"Passenger Convenience Equipment" means available components or
systems installed on or affixed to the Airframe that are used to provide
individual telecommunications to passengers aboard the Aircraft.
"Past Due Rate" means (i) with respect to any portion of any
payment of Rent that may be required by the Trust Indenture to be paid by
the Indenture Trustee to the Loan Participants, or the holders of any
outstanding Equipment Notes, a rate per annum equal to 1% over the interest
rate then in effect for such Equipment Notes, and (ii) with respect to the
remaining portion of any payment of Rent (and the entire amount of any
payment of Rent after the satisfaction and discharge of the Trust
Indenture), a rate per annum equal to 1% over the Base Rate.
"Payment Date" means each March 1 and September 1, commencing
on [-] (or, if any such day is not a Business Day, the immediately
succeeding Business Day) until the Equipment Notes have been paid in full.
"Permitted Foreign Air Authority" means the Civil Aviation
Authority of the United Kingdom, the Direction Generale de l'Aviation
Civile of the French Republic, the Luftfahrt Bundesamt of the Federal
Republic of Germany, the Rijflauchtraatdienst of the Kingdom of the
Netherlands, the Ministry of Transportation of Japan or the Federal
Ministry of Transport of Canada (and any agency or instrumentality of the
applicable government succeeding to the functions of any of the foregoing
entities).
"Permitted Lien" means any Lien referred to in clauses (i)
through (viii) of Section 6 of the Lease.
"Permitted Sublessee" means any entity domiciled in a country
listed in the last paragraph of Section 7(d) of the Participation Agreement
as in effect from time to time and as may be modified in accordance with
Section 7(d) of the Participation Agreement.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Policy" means the financial guarantee insurance policy, dated
as of the Pass Through Trust Closing Date, issued by the Policy Provider in
favor of the Subordination Agent for the benefit of the Class G Pass
Through Trust.
"Policy Provider" means MBIA Insurance Corporation, or any
successor thereto.
"Policy Provider Agreement" means the Insurance and Indemnity
Agreement, dated as of the Pass Through Trust Closing Date, among the
Policy Provider, Lessee and the Subordination Agent.
"Principal Amount", with respect to an Equipment Note, means
the stated original principal amount of such Equipment Note and, with
respect to all Equipment Notes, means the aggregate stated original
principal amounts of all Equipment Notes.
"Purchase Agreement" means the Sale and Purchase Agreement,
dated as of October 31, 1997, between the Seller and US Airways Group, Inc.
(including all exhibits thereto, together with all letter agreements
entered into that by their terms constitute part of any such Purchase
Agreement), as the same may be amended or otherwise supplemented from time
to time, as the same has been assigned to Lessee, relating to the purchase
by Lessee of the Aircraft.
"Purchase Agreement Assignment" means the Purchase Agreement
Assignment (US Airways, Inc. Trust No. N___U_), dated as of the date of the
Lease, between Lessee and Lessor, as the same may be amended, supplemented
or modified from time to time, with a form of Consent and Agreement to be
executed by the Seller attached thereto.
"Purchase Option Date" has the meaning specified for such term
in Section 19(b) of the Lease.
"Purchasers" means the Pass Through Trustees under each Pass
Through Trust Agreement.
"QIB" has the meaning specified for such term in Section 2.08
of the Trust Indenture.
"Qualified Owner Participant" means a Person (x) that is not an
Affiliate of Lessee and (y) that has a tangible net worth, calculated in
accordance with generally accepted accounting principles, greater than
[$50,000,000] or such other amount as is acceptable to Lessee, or (z) whose
obligations under the Operative Documents are unconditionally guaranteed by
a Person meeting the requirements of clauses (x) and (y).
"Refinancing Certificate" has the meaning specified for such
term in Section 16(a) of the Participation Agreement.
"Refinancing Date" has the meaning specified for such term in
Section 16(a) of the Participation Agreement.
"Refinancing Information" has the meaning specified for such
term in Section 16(a) of the Participation Agreement.
"Registration Agreement" means the Registration Agreement dated
___________ made by US Airways, Inc., and confirmed and accepted by AIFS,
in respect of the ___% Pass Through Certificates, Series 2000-3C, as such
Registration Agreement may be amended, modified and supplemented from time
to time in accordance with the provisions thereof.
"Registration Default" has the meaning specified for such term
in the Registration Agreement.
"Remaining Weighted Average Life" of an Equipment Note, at the
redemption date of such Equipment Note, means the number of days equal to
the quotient obtained by dividing (a) the sum of the products obtained by
multiplying (i) the amount of each then remaining installment of principal,
including the payment due on the maturity date of such Equipment Note, by
(ii) the number of days from and including the redemption date to but
excluding the scheduled payment date of such principal installment; by (b)
the then unpaid principal amount of such Equipment Note.
"Renewal Term" means any Fixed Renewal Term or Fair Market
Renewal Term.
"Rent" means Basic Rent and Supplemental Rent, collectively.
"Rent Payment Date" means [-] each succeeding March 1 and
September 1 in the Term, the Basic Term Expiration Date, and the last day
of any Renewal Term.
"Replacement Airframe" means any airframe substituted for the
Airframe pursuant to Section 10 of the Lease.
"Replacement Engine" means any engine substituted for an Engine
pursuant to Sections 9(c) and 10 of the Lease.
"Responsible Officer" means with respect to the Owner Trustee,
a responsible officer in the Trust Office of the Owner Trustee (including,
without limitation, any authorized officer in the Trust Office of the Owner
Trustee), and with respect to the Indenture Trustee, a responsible officer
in the Corporate Trust Office of the Indenture Trustee.
"Scheduled Delivery Date" has the meaning specified for such
term in Section 2(f) of the Participation Agreement.
"Section 1110 Period" has the meaning specified for such term
in Section 4.04(a) of the Trust Indenture.
"Secured Obligations" has the meaning specified for such term
in the Granting Clause of the Trust Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Seller" means AVSA, S.A.R.L., a societe a responsabilite limitee
------
organized and existing under the laws of the Republic of France.
"Senior Holder" has the meaning specified for such term in
Section 2.15(c) of the Trust Indenture.
"Series C" or "Series C Equipment Notes" means Equipment Notes
issued and designated as "Series C" under the Trust Indenture, in the
Principal Amount and maturities and bearing interest as specified in
Schedule I to the Trust Indenture under the heading "Series C."
"Series G" or "Series G Equipment Notes" means Equipment Notes
issued and designated as "Series G" under the Trust Indenture, in the
Principal Amount and maturities and bearing interest as specified in
Schedule I to the Trust Indenture under the heading "Series G."
"Significant Expenditure" means an expenditure or planned
expenditure of the type described in clause (B) of the definition of
Burdensome Termination Event.
"State Street" means State Street Bank and Trust Company of
Connecticut, National Association, a national banking association, not in
its capacity as Indenture Trustee under the Trust Indenture, but in its
individual capacity.
"Sublease" means any sublease permitted by the terms of Section
7(b)(x) of the Lease.
"Sublessee" means any Person for so long, but only so long, as
such Person is in possession of the Airframe and/or any Engine pursuant to
the terms of a Sublease which is then in effect pursuant to Section 7(b)(x)
of the Lease.
"Subordination Agent" means State Street Bank and Trust Company
of Connecticut, National Association, a national banking association, as
subordination agent under the Intercreditor Agreement, or any successor
thereto.
"Subsequent Owner Participant" means any entity to which the
Owner Participant or any transferee from the Owner Participant or any
Subsequent Owner Participant shall have transferred at any time after the
Delivery Date all of the undivided right, title and interest originally
held by the Owner Participant in the Trust Agreement, the Trust Estate and
the Participation Agreement, to the extent permitted by Section 8.01 of the
Trust Agreement and Section 7(k) of the Participation Agreement.
"Supplemental Rent" means, without duplication, (a) all
amounts, liabilities, indemnities and obligations (other than Basic Rent)
that Lessee assumes or becomes obligated to or agrees to pay under any
Lessee Document to or on behalf of Lessor or any other Person, including,
without limitation, payments of the Incremental Amount pursuant to Section
3(d) of the Lease, Termination Value, any amounts in respect of a purchase
price payable pursuant to Section 19(c) or 20 of the Lease and payments of
indemnities under Section 6 of the Participation Agreement, but excluding
any amount as to which Lessee is obligated to pay a pro rata share pursuant
to clause (d) or (e) of this definition, (b) (i) to the extent not payable
(whether or not in fact paid) under Sections 7(a) or 7(b) of the Note
Purchase Agreement (as applicable) (as originally in effect or amended with
the consent of the Owner Participant), an amount or amounts equal to the
fees payable (whether or not in fact paid) to (x) the Liquidity Provider
under Section 2.03 of each Liquidity Facility and the related Fee Letter
(as defined in the Intercreditor Agreement) multiplied by a fraction the
numerator of which shall be the then outstanding aggregate principal amount
of the Series G Equipment Notes and Series C Equipment Notes and the
denominator of which shall be the then outstanding aggregate principal
amount of all "Series G Equipment Notes" and "Series C Equipment Notes" (in
each case as defined in the relevant Operative Indenture) issued under the
Operative Indentures and (y) the Policy Provider under the Policy Fee
Letter (as defined in the Policy Provider Agreement) multiplied by a
fraction the numerator of which shall be the sum of the then outstanding
aggregate principal amount of the Series G Equipment Notes and the
denominator of which shall be the sum of the then outstanding aggregate
principal amount of all "Series G Equipment Notes" (in each case as defined
in the relevant Operative Indenture) issued under the Operative Indentures;
(ii) (x) the amount equal to interest on any Downgrade Advance (other than
any Applied Downgrade Advance) payable (whether or not in fact paid) under
Section 3.07 of each Liquidity Facility minus Investment Earnings from such
Downgrade Advance multiplied by (y) the fraction specified in the foregoing
clause (i); (iii) (x) the amount equal to interest on any Non-Extension
Advance (other than any Applied Non-Extension Advance) payable (whether or
not in fact paid) under Section 3.07 of each Liquidity Facility minus
Investment Earnings from such Non-Extension Advance multiplied by (y) the
fraction specified in the foregoing clause (i); (iv) if any payment default
shall have occurred and be continuing with respect to interest on any
Series G Equipment Note or Series C Equipment Note, (x) the excess, if any,
of (1) an amount equal to interest on any Unpaid Advance, Applied Downgrade
Advance or Applied Non- Extension Advance payable (whether or not in fact
paid) under Section 3.07 of each Liquidity Facility (or, in the case of the
Series G Equipment Notes, if the Policy Provider has made a payment
equivalent to such an Advance, as would have been payable under Section
3.07 of the applicable Liquidity Facility in respect of the Class G Pass
Through Certificates had such Advance been made) over (2) the sum of
Investment Earnings from any Final Advance plus any amount of interest at
the Past Due Rate actually payable (whether or not in fact paid) by Lessee
in respect of the overdue scheduled interest on the Equipment Notes in
respect of which such Unpaid Advance, Applied Downgrade Advance or Applied
Non-Extension Advance was made by the applicable Liquidity Provider (or, in
the case of the Series G Equipment Notes, an equivalent payment was made by
the Policy Provider) multiplied by (y) a fraction the numerator of which
shall be the then aggregate overdue amounts of interest on the Series G
Equipment Notes and Series C Equipment Notes (other than interest becoming
due and payable solely as a result of acceleration of any such Equipment
Notes) and the denominator of which shall be the then aggregate overdue
amounts of interest on all "Series G Equipment Notes" and "Series C
Equipment Notes" (in each case as defined in the relevant Operative
Indenture) issued under the Operative Indentures (other than interest
becoming due and payable solely as a result of acceleration of any such
"Equipment Notes," (in each case as defined in the relevant Operative
Indenture) issued under the Operative Indentures); and (v) Lessee's pro
rata share of any other amounts payable (whether or not in fact paid) to
the Liquidity Provider by the Subordination Agent as borrower under each
Liquidity Facility (other than amounts due as repayment of advances
thereunder or as interest on such advances), except to the extent payable
(whether or not in fact paid) pursuant to clause (i), (ii), (iii) or (iv)
above, (c) Lessee's pro rata share of all compensation and reimbursement of
expenses, disbursements and advances payable (whether or not in fact paid)
by Lessee under the Pass Through Trust Agreements, (d) Lessee's pro rata
share of (I) all compensation and reimbursement of expenses and
disbursements payable (whether or not in fact paid) to the Subordination
Agent under the Intercreditor Agreement except with respect to any income
or franchise taxes incurred by the Subordination Agent in connection with
the transactions contemplated by the Intercreditor Agreement and (II) all
amounts payable (whether or not in fact paid) to the Policy Provider under
Section 3.7(i) of the Intercreditor Agreement, and (e) Lessee's pro rata
share of any amount payable (whether or not in fact paid) under Section
6(c) of the Participation Agreement to any Pass Through Indemnitee to the
extent such amount relates to, results from or arises out of or in
connection with (i) the Pass Through Trust Agreement or the enforcement of
any of the terms of any Pass Through Document, (ii) the offer, sale, or
delivery of the Pass Through Certificates or any interest therein or
represented thereby or (iii) any breach of or failure to perform or
observe, or any other noncompliance with, any covenant or agreement or
other obligation to be performed by Lessee under any Pass Through Document
or the falsity of any representation or warranty of Lessee in any Pass
Through Document. As used herein, "Lessee's pro rata share" means as of any
time a fraction, the numerator of which is the principal balance then
outstanding of Equipment Notes and the denominator of which is the
aggregate principal balance then outstanding of all "Equipment Notes" (in
each case as defined in the relevant Operative Indenture) issued under the
Operative Indentures. For purposes of this definition, the terms "Applied
Downgrade Advance", "Applied Non-Extension Advance", "Cash Collateral
Account", "Downgrade Advance", "Final Advance", "Investment Earnings",
"Non-Extension Advance" and "Unpaid Advance" shall have the meanings
specified in each Liquidity Facility. For the avoidance of doubt, it is
understood and agreed that Supplemental Rent includes, without limitation,
any amounts payable (whether or not in fact paid) under the third paragraph
of Section 2.02 of the Trust Indenture.
"Tax Indemnity Agreement" means that certain Tax Indemnity
Agreement (US Airways, Inc. Trust No. N___U_), dated as of the date of the
Lease, between the Owner Participant and Lessee, as originally executed or
as modified, amended or supplemented pursuant to the applicable provisions
thereof.
"Taxes" means any and all fees (including, without limitation,
license, recording, documentation and registration fees), taxes (including,
without limitation, income, gross receipts, sales, rental, use, turnover,
value added, property (tangible and intangible), excise and stamp taxes),
license, levies, imposts, duties, recording charges and assessments of any
kind whatsoever that are in the nature of taxes or other governmental
charges including interest, penalties and additions to tax (each,
individually a "Tax").
"Term" means the Basic Term and, if actually entered into, any
Renewal Term.
"Termination Date" has the meaning set forth in Section 9(a) of
the Lease.
"Termination Value" with respect to the Aircraft (a) as of any
date during the Basic Term means, but subject always to the provisions of
Section 3(c)(v) of the Lease, the amount determined by multiplying Lessor's
Cost for the Aircraft by the percentage specified in Exhibit C to the Lease
under the caption "Total Termination Payment" opposite the Termination
Value Date with respect to which the amount is determined (as such Exhibit
C may be adjusted from time to time as provided in Section 3(c) of the
Lease and as expressly provided in any other Operative Document) [(such
Termination Value shall equal the sum of, and represent, (i) a payment (or
reduction) of Basic Rent in an amount equal to the "Basic Rent Amount" set
forth on Exhibit C to the Lease (which includes all amounts of Basic Rent
allocated to any period prior to the termination and not yet paid and
reduced by all amounts paid prior to the termination and allocated to
periods after the termination and (ii) a payment of the "Termination
Amount" set forth on Exhibit C to the Lease)] and (b) as of any date during
the Renewal Term, shall have the meaning set forth in Section 19(a)(5) of
the Lease.
"Termination Value Date" means each date set forth on Exhibit C
to the Lease under the caption "Termination Date."
"Transaction Expenses" means: all of the reasonable
out-of-pocket costs, fees and expenses incurred by Lessee, the Owner
Trustee, the Pass Through Trustees, the Subordination Agent, the Indenture
Trustee, the Liquidity Providers and the Policy Provider in connection with
the transactions contemplated by the Participation Agreement, the other
Operative Documents, the Pass Through Documents and the Underwriting
Agreement (except, in each case, as otherwise provided therein) including,
without limitation:
(a) the reasonable and actual fees, expenses and
disbursements of (A) ▇▇▇▇▇▇▇ ▇▇▇▇ LLP, special counsel for the Pass Through
Trustee, the Subordination Agent and the Indenture Trustee, (B) Ray,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special counsel for the Owner Trustee, (C) Milbank,
Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special counsel for the Underwriters and (D)
▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C., special counsel in Oklahoma City, Oklahoma;
(b) the initial fees and reasonable and actual
disbursements of the Owner Trustee under the Trust Agreement;
(c) the initial fee and reasonable and actual
disbursements of the Indenture Trustee under the Trust Indenture;
(d) the initial fees and expenses of the Liquidity
Providers, the Policy Provider, the Pass Through Trustee and the
Subordination Agent;
(e) underwriting fees and commissions;
(f) the fees and expenses with respect to the appraisal
of the Aircraft;
(g) the reasonable fees, expenses and disbursements of
[-], special counsel to the Owner Participant, such fees not to exceed the
amount previously agreed to by the Owner Participant and Lessee;
(h) the fees, expenses and disbursements of Skadden, Arps,
Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP and its affiliates, special counsel for Lessee;
(i) the costs of filing and recording documents with the
FAA and filing Uniform Commercial Code statements in the United States;
(j) the reasonable fees, expenses and disbursements of
special counsel to each of the Liquidity Providers and the Policy Provider;
(k) the expenses of the Depositary payable under Section
10(a) of each Indemnity Agreement;
(l) the reasonable fees, expenses and disbursements of
special counsel to the Seller and the Manufacturer; and
(m) the reasonable fees, expenses and disbursements of
Capstar Partners LLC.
"Transactions" means the transactions contemplated by the
Participation Agreement and the other Operative Documents.
"Transferee" has the meaning specified for such term in Section
7(k) of the Participation Agreement.
"Transportation Code" means that portion of the United States
Code comprising those provisions formerly referred to as the Federal
Aviation Act of 1958, as amended, or any subsequent legislation that
amends, supplements or supersedes such provisions.
"Trust Agreement" means that certain Trust Agreement (US
Airways, Inc. Trust No. N___U_), dated as of the date of the Lease, between
the Owner Participant and First Security Bank, National Association, in its
individual capacity, as originally executed or as modified, amended or
supplemented pursuant to the applicable provisions thereof, including,
without limitation, supplementation thereof by one or more Trust
Supplements entered into pursuant to the applicable provisions thereof.
"Trust Agreement and Indenture Supplement" or "Trust
Supplement" means a supplement to the Trust Agreement and the Trust
Indenture, substantially in the form of Exhibit A to the Trust Indenture,
which shall particularly describe the Aircraft, and any Replacement
Airframe and Replacement Engine included in the property of the Owner
Trustee covered by the Trust Agreement.
"Trust Estate" means all estate, right, title and interest of
the Owner Trustee in and to the Aircraft, the Lease, any Lease Supplement,
the Purchase Agreement, the Purchase Agreement Assignment, the ▇▇▇▇ of Sale
and the FAA ▇▇▇▇ of Sale, including, without limitation, all amounts of
Basic Rent and Supplemental Rent including without limitation insurance
proceeds (other than insurance proceeds payable to or for the benefit of
the Owner Trustee, for its own account or in its individual capacity, the
Owner Participant, the Loan Participants or the Indenture Trustee) and
requisition, indemnity or other payments of any kind for or with respect to
the Aircraft (except amounts owing to the Owner Participant, to the
Indenture Trustee, to the Owner Trustee, in its individual capacity, or to
the Loan Participants or any other holder of a Equipment Note, or to any of
their respective directors, officers, employees, servants and agents,
pursuant to Section 6 of the Participation Agreement). Notwithstanding the
foregoing, "Trust Estate" shall not include any Excluded Payments.
"Trust Indenture" or "Indenture" means that certain Trust
Indenture and Security Agreement (US Airways, Inc. Trust No. N___U_), dated
as of the date of the Lease, between Lessor and the Indenture Trustee, as
it may from time to time be supplemented or amended as therein provided,
including supplementing by the Trust Agreement and Indenture Supplement
pursuant to the Trust Indenture.
"Trust Indenture Estate" or "Indenture Estate" means all
estate, right, title and interest of the Indenture Trustee in and to the
properties referred to in the Granting Clause of the Trust Indenture,
excluding Excluded Payments.
"Underwriters" means ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, Credit
Lyonnais Securities (USA) Inc., Deutsche Bank Securities Inc. and ▇▇ ▇▇▇▇▇
Securities Corporation.
"U.S. Air Carrier" means any Certificated Air Carrier as to
which there is in force an air carrier operating certificate issued
pursuant to Part 121 of the regulations under the Transportation Code, or
which may operate as an air carrier by certification or otherwise under any
successor or substitute provisions therefor or in the absence thereof.
"U.S. Person" means any Person that qualifies as a "United States
person" under Section 7701(a)(30) of the Code.
"Wet Lease" means any arrangement whereby the Lessee (or any
Sublessee) agrees to furnish the Airframe and Engines or engines installed
thereon to a third party pursuant to which such Airframe and Engines or
engines (i) shall be operated solely by regular employees of Lessee (or any
Sublessee) possessing all current certificates and licenses that would be
required under the Transportation Code, or, if the Aircraft is not
registered in the United States, all certificates and licenses required by
the laws of the jurisdiction of registry, for the performance by such
employees of similar functions within the United States of America or such
other jurisdiction of registry (it is understood that cabin attendants need
not be regular employees of Lessee (or any Sublessee)) and (ii) shall be
maintained by Lessee (or any Sublessee) in accordance with its normal
maintenance practices.