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EXHIBIT 4.4
INSTRUCTIONS AND CONSENT AGREEMENT
THIS INSTRUCTIONS AND CONSENT AGREEMENT, dated as of March 31, 1987, by
and between AIRLEASE LTD., A CALIFORNIA LIMITED PARTNERSHIP, of which Airlease
Management Services, Inc. is general partner ("Airlease"), and THE WORLD WING
COMPANY LIMITED, a corporation formed and existing under the laws of the Bahamas
("Lender");
W I T N E S S E T H:
Whereas MERIDIAN TRUST COMPANY, a trust company organized under the
laws of the Commonwealth of Pennsylvania, not in its individual capacity except
as provided in the Loan and Security Agreement referred to below, but solely as
trustee under that certain Trust Agreement (as defined in the Loan and Security
Agreement) ("Borrower") and Lender have entered into that certain Loan and
Security Agreement dated as of March 20, 1987 (the "Loan Agreement") (all terms
defined in the Loan Agreement shall have the same meaning when used herein); and
Whereas Borrower and Airlease have entered into the Trust Agreement
whereby, among other things, (i) Borrower established a certain trust for the
use and benefit of Airlease, (ii) provision was made for the payment by Borrower
to Airlease of amounts distributable to Airlease thereunder and (iii) Borrower
is directed and authorized to take any action as Airlease may request through
written instructions; and
Whereas execution of this Instructions and Consent Agreement by
Airlease is a condition precedent to the loan under the Loan Agreement;
N o w, T h e r e f o r e, in consideration of the premises and for
other good and valuable consideration, the receipt of which is hereby
acknowledged, and in order to induce Lender to make the loan provided for in the
Loan Agreement, the parties hereto agree as follows:
1. Instructions to Borrower. Airlease acknowledges and agrees that it
has the right, power and authority under the Trust Agreement to cause Borrower
to grant a lien on and security interest in the Aircraft, Airframes, Engines,
Parts, Lease, Assignment Agreement, Purchase Agreement, TBT Note and TBT Lease
to Lender for the uses and purposes set forth in the Loan Agreement, and that
Borrower has the right, power and authority
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under the Trust Agreement to grant a lien on and security interest in the
Aircraft, Airframes, Engines, Parts, Lease, Assignment Agreement, Purchase
Agreement, TBT Note and TBT Lease to Lender for the uses and purposes set forth
in the Loan Agreement. Airlease hereby ratifies the Loan Agreement and instructs
Borrower to enter into the Loan Agreement and to perform al1 obligations under
the Loan Agreement undertaken by the Borrower thereunder and ratifies any action
previously taken by Borrower in entering into and performing its obligations
under the Loan Agreement. Airlease acknowledges that its interest in the
Collateral is bound by and subject to the Loan Agreement. Lender shall assume,
and shall be fully protected in assuming, that Borrower is authorized by the
TRUST Agreement to enter into the Loan Agreement and to take all action
permitted to be taken by it pursuant to the provisions thereof, and need not
inquire into the authorization of Borrower with respect thereto. In the
administration of the trust pursuant to the Loan Agreement, Borrower may execute
any of the trusts or powers thereof and perform its powers and duties thereunder
directly or through agents or attorneys and may, subject to and in compliance
with the Trust Agreement, at the expense of Airlease, consult with independent
counsel, accountants and other experts to be selected and employed by it, and
Borrower shall not be liable for anything done, suffered or omitted in good
faith by it in accordance with the written advice or opinion of any such
independent counsel, accountants or other experts acting within such persons'
area of competence (so long as Borrower shall have exercised reasonable care in
selecting such persons).
2. Airlease Liens. Airlease will warrant and defend the lien and
security interest in all Collateral against all Liens arising out of acts of or
claims against Airlease. Airlease warrants that there is no financing statement
or other filed or recorded instrument in which Airlease is named as debtor now
on file in any public office covering any of the Collateral except the financing
statements or other instruments filed or to be filed in respect of and for the
lien and security interest provided for in the Loan Agreement. Airlease agrees
that it will at its own cost and expense promptly take such action as may be
necessary to duly discharge and satisfy in full all liens or encumbrances
attributable to Airlease on any part of the Collateral.
3. Lender as Airlease's Attorney-in-Fact. Airlease hereby constitutes
and appoints Lender the true and lawful attorney of Airlease, irrevocably, with
an interest and full power (in the name of Airlease or otherwise) to ask,
demand, require and
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receive all rights to the property, rights and interests granted to Airlease and
Borrower pursuant to the terms of the Purchase Agreement, Assignment Agreement,
TBT Note and TBT Lease and without limiting the provisions of the foregoing,
during the continuance of any Loan Default, to sue for, give acquittance for,
settle, adjust or compromise any claim for any and all rights which are assigned
under the Granting Clause of the Loan Agreement as fully as Airlease could
itself do.
Notwithstanding any other provision of these Instructions and Consent
Agreement, (a) unless and until a Loan Default shall have occurred and be
continuing, all rights, powers, authorizations, approvals, privileges, benefits,
notices and consents under or with respect to the Assigned Agreements,
including, without limitation, the right to give waivers, consents and
approvals, shall be exercised or given, as the case may be, by the Borrower (at
the direction of Airlease), with the prior written consent of the Lender, which
shall not be unreasonably withheld (Lender hereby agreeing to respond promptly
to any request therefor by Borrower or Airlease), provided that no consent shall
be required for the exercise of rights, powers, privileges and notices of an
administrative nature, and (b) after a Loan Default under Section 4.01(a) of the
Loan Agreement has occurred and is continuing when no other Loan Default
(excepting an Event of Default) has occurred and is continuing:
(i) Lender shall not enter into any modification, waiver or
amendment to the Lease the effect or result of which is to extend the
Term of the Lease, or alter the amount of any Rent or alter the terms
and provisions of the Lease, or exercise or enforce any other of its
rights and remedies under the Lease, prior to the expiration of the
period during which Borrower (at the direction of Airlease) may cure
said default pursuant to Section 4.04 of the Loan Agreement, and
(ii) in the event Borrower (at the direction of Airlease) shall
make the payments set forth in the first sentence of Section 4.04 of
the Loan Agreement, then, subject to the conditions set forth below,
Borrower (at the direction of Airlease) shall be entitled, to the
exclusion of Lender, notwithstanding the existence of one or more other
Events of Default, to exercise in good faith having due regard for the
interests of Lender, all of the remedies of the lessor under the Lease,
including
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without limitation, the right to declare the Lease in default under
Article 18 thereof, to terminate the Lease with Lessee, and to re-lease
the Aircraft pursuant to a lease reasonably satisfactory in form and
substance to Lender to one or more successive third party lessees each
of which shall be an air carrier certificated by the Federal Aviation
Administration and be capable of maintaining the Aircraft pursuant to a
maintenance program reasonably satisfactory to Lender, and each of
which lessee or lessees shall be approved in writing by Lender.
Airlease's right to direct Borrower to exercise the foregoing rights
and powers is conditional upon (1) there being no existing Loan Default other
than under Section 4.01(a) of the Loan Agreement and (2) compliance by Borrower,
Airlease or a third party lessee approved by Lender pursuant to the preceding
paragraph with all requirements of the Lease, to the extent that noncompliance
could have a material adverse affect on the value of the Collateral including,
without limitation, Section 6.05 (maintenance) and Sections 12.01 and 12.02
(insurance) of the Lease.
Notwithstanding the foregoing, Lender reserves the right to call the
Note pursuant to Section 2.10(a)(iv) of the Loan Agreement.
4. Further Assurances. Airlease agrees that at any time and from time
to time, upon the written request of Lender, Airlease will promptly and duly
execute and deliver any and all such further instruments and documents as Lender
may deem desirable in obtaining the full benefits of this Instructions and
Consent Agreement and the Loan Agreement and of the rights and powers herein or
therein granted.
5. Action by Airlease. Except as provided herein, Airlease will not
without the prior written consent of Lender:
(a) declare a default or exercise any remedies under, or terminate, modify
or accept a surrender of, or offer or agree to any termination, modification or
surrender of, any Assigned Agreement or by affirmative act consent to the
creation or existence of any security interest or other Lien (other than the
security interest and Lien of the Loan Agreement) to secure payment of
indebtedness upon the leasehold estate created by the
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Lease or any part thereof, or upon any of Airlease's and Borrower's rights under
the Assignment Agreement, Purchase Agreement, TBT Note and TBT Lease; or
(b) sell, mortgage, transfer, assign or hypothecate (other than to Lender)
Airlease's and Borrower's interests in the Aircraft, Lease, Assignment
Agreement, Purchase Agreement, TBT Note and TBT Lease, provided that Airlease
may sell, transfer or assign (other than any sale, transfer or assignment for
security) all of Airlease's interest in any Aircraft or portion thereof and the
Assigned Agreements to the extent related to such Aircraft owned through the
Trust to any affiliate of Airlease or, with Lender's consent (which consent
shall not be unreasonably withheld, and which shall be given or denied promptly
after any request) to any Person organized under the law of any state of the
United States, which has a consolidated net worth of $25 million or more, so
long as (i) such purchaser, transferee or assignee (the "Transferee") assumes
all obligations of Airlease under this Instructions and Consent Agreement, the
Trust Agreement and the Assigned Agreements to the extent any such agreements
relate to the Aircraft or portion thereof being transferred, (ii) Airlease
transfers all interest in the Trust Agreement and each of the Assigned
Agreements to the extent an,7 such agreements relate to the Aircraft or portion
thereof being transferred, and (iii) no Loan Default has occurred and is
continuing; and provided further, Airlease may remove the Trustee and appoint a
successor Trustee under the Trust Agreement without regard to any net worth
requirements so long as such successor Trustee is an affiliate of Airlease. Upon
a transfer of all, but not less than all, of Airlease's right, title and
interest in the Aircraft and the Assigned Agreements to a Person which is not an
affiliate of Airlease in compliance with this Section 5, Airlease shall be
released of all obligations under this Instructions and Consent Agreement.
6. Notice of Default. In the event Airlease shall have actual knowledge
of a Loan Default or an event or condition which after notice or lapse of time
or both would constitute a Loan Default, Airlease shall give notice of such Loan
Default or such event or condition to Lender, Borrower and Lessee.
7. Indemnification. Airlease hereby agrees, whether or not any of the
transactions contemplated hereby shall be consummated, to assume liability for,
and does hereby indemnify, protect, save and keep harmless Lender and its
successors, assigns, agents and
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servants, from and against any and all liabilities (including strict tort
liability), obligations, losses, damages, penalties, taxes (excluding any taxes,
fees or other charges on, based on, or measured by, its gross or net receipts or
its gross or net income, or any business or similar taxes, any transfer taxes,
or any withholding taxes related to the payment of principal, Prepayment
Premium, if any, or interest on the Note to Lender), claims, actions, suits,
costs, expenses or disbursements (including reasonable legal fees and expenses)
of any kind and nature whatsoever which may be imposed on, incurred by or
asserted against the Collateral or Lender (whether or not also indemnified
against by any other Person under any other document) in any way relating to or
arising out of this Instructions and Consent Agreement, the Loan Agreement, the
Note, the Lease or the enforcement of any of the terms of any thereof, or in any
way relating to or arising out of the manufacture, purchase, acceptance,
nonacceptance, rejection, ownership, delivery, lease, registration, possession,
use, operation, condition, sale, return or other disposition of the Aircraft
(including, without limitation, latent and other defects, whether or not
discoverable, and any claim for patent, trademark or copyright infringement), or
in any way relating to or arising out of the administration of the Collateral or
the action or inaction of Borrower, Airlease or Lender except only in the case
of willful misconduct or gross negligence of Lender, or in any way relating to
or arising out of the TBT Lease or the IBM Consent Agreement (including, without
limitation, any breach by Lender of the TBT Lease or the IBM Consent Agreement
or the last sentence of Section 15.09 of the Loan Agreement); provided that
Lender shall not make any claim under this section for any claim or expense
indemnified against by Lessee under the Lease or Purchase Agreement.
8. Consent of Lender. Neither Borrower nor Airlease shall enter into
any amendment of, or supplement to, the Lease, the Trust Agreement, the Purchase
Agreement, the Assignment Agreement, the TBT Note or the TBT Lease, or execute
and deliver any waiver or modification of, or consent or approval under, the
terms of any such agreement, unless such supplement, amendment, waiver,
modification, consent or approval is consented to in writing by Lender, which
consent shall not be unreasonably withheld. Lender shall give or deny such
request promptly after receipt of written instructions therefor.
9. Lender Protected. If in the opinion of Lender any document required
to be executed pursuant to the terms of Section
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9.01 of the Loan Agreement adversely affects any right, duty, immunity or
indemnity in favor of Lender under this Instructions and Consent Agreement, the
Loan Agreement, the Assignment Agreement, the Purchase Agreement, the Lease, the
TBT Note or the TBT Lease, Lender may in its discretion decline to execute such
document.
10. Representations and Warrants of Airlease. Airlease covenants,
warrants and represents that:
(a) Airlease is a limited partnership duly organized, validly existing
and in good standing under the laws of the State of California;
(b) Airlease has the full power and authority to enter into and perform
its obligations under this Instructions and Consent Agreement, the Purchase
Agreement, the Trust Agreement and the Assignment Agreement, and has full power
and authority to perform its obligations under the TBT Lease;
(c) There are no proceedings pending, or to the knowledge of Airlease
threatened, and to the knowledge of Airlease, there is no existing basis for any
such proceedings, against or affecting Airlease in any court or before any
governmental authority or arbitration board or tribunal which, if adversely
determined, might materially and adversely affect the Collateral or would call
into question the right, power and authority of Airlease to enter into or
perform this Instructions and Consent Agreement, the Assignment Agreement, the
Trust Agreement, the TBT Lease or the Purchase Agreement;
(d) The Collateral is free and clear of any Liens attributable to
Airlease. Airlease has not by affirmative act conveyed any interest in the
Collateral to any Person or subjected the Collateral to any Lien except as
contemplated by the Loan Agreement;
(e) Airlease is not in violation in any material respect of any term of
this Instructions and Consent Agreement, the Trust Agreement, the Assignment
Agreement, the TBT Lease or the Purchase Agreement;
(f) Airlease has no actual knowledge of any Default or Event of Default
by Lessee or any other condition or event which may materially adversely affect
Lessee's ability to comply with
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any of the terms of the Lease; Airlease has no notice or knowledge of any other
Loan Default;
(g) This Instructions and Consent Agreement, the Assignment Agreement,
the Purchase Agreement and the Trust Agreement have been duly authorized by all
necessary action on the part of Airlease, have been duly executed and delivered
by Airlease, and constitute (assuming the due authorization, execution and
delivery of such agreements by the other parties thereto) the valid and binding
obligations of Airlease enforceable against it with regard to any undertakings
by Airlease pursuant to the terms thereof;
(h) The execution and delivery of this Instructions and Consent
Agreement, the Assignment Agreement, the Trust Agreement and the Purchase
Agreement and compliance by Airlease with all of the provisions hereof and
thereof do not and will not contravene any law of the United States or the State
of California governing the powers of Airlease, or any order of any court or
governmental authority or agency applicable to or binding on Airlease or the
provisions of its limited partnership agreement; and
(i) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body of the United
States or the State of California governing the powers of Airlease is required
for the due execution, delivery and performance of this Instructions and Consent
Agreement, the Purchase Agreement, the Trust Agreement or the Assignment
Agreement by Airlease.
11. Payments to Borrower. Airlease agrees to pay and deliver all Rent
and any other monies due under or arising out of the Lease actually received by
Airlease under the Lease to Borrower to the extent necessary to allow Borrower
to perform its obligations under the Note and the Loan Agreement.
Notwithstanding any other provisions of this Instructions and Consent Agreement,
all payments of principal and interest to be made under the Note and under the
Loan Agreement shall be made only from the income and proceeds from the Lease
and the security interests in the Aircraft, Airframes, Engines, Parts, the
Purchase Agreement, the Assignment Agreement, the TBT Lease and the TBT Note and
only to the extent of Borrower's and Airlease's interest thereto, except for
Excepted Property. Lender agrees that it will look solely to the income and
proceeds from the Lease and the security interests described above to the extent
available for
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distribution to the Lender as provided in the Loan Agreement, that the Note
shall be nonrecourse to Airlease and Borrower, and that Airlease and Borrower
shall not be personally liable to the holder of the Note for any amount payable
under the Note or the Loan Agreement.
12. Successors and Assigns. All covenants and agreements contained
herein shall be binding upon, and inure to the benefit of, Lender and its
successors and permitted assigns, Airlease and its successors and permitted
assigns, and Borrower and its successors, all as herein provided.
13. Headings. The headings of the various Sections herein are for
convenience of reference only and shall not define, limit or expand any of the
terms or provisions hereof.
14. Severability. Any provision of this Instructions and Consent
Agreement which is prohibited and unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
15. Governing Law. This Instructions and Consent Agreement shall in all
respects be governed by, and construed in accordance with, the laws of the State
of California, including all matters of construction, validity and performance.
This Instructions and Consent Agreement is being delivered in the State of
California.
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IN WITNESS WHEREOF, the parties hereto have caused this Instructions
and Consent Agreement to be duly executed by their duly authorized officers, as
of the day and year first above written.
AIRLEASE:
AIRLEASE LTD., A CALIFORNIA
LIMITED PARTNERSHIP
By AIRLEASE MANAGEMENT
SERVICES, INC., as General
Partner
By /s/ Douglas C. Kay
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Title President
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LENDER:
THE WORLD WING COMPANY LIMITED, a
corporation formed and existing under the
laws of the Bahamas
By /s/ T. Watanabe
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Title Treasurer
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